NEW RANGE RULE DRAFT

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

NEW RANGE RULE DRAFT

In April, the Defense Department (DOD) began limited circulation of new 
version of the munitions Range Rule that it intends to propose 
formally within the next few months. The most significant difference 
from the previous "strawman" draft is that it offers a "concurrence" 
process to EPA and state regulatory agencies, as well as other federal 
agencies that now own former military ranges, but the change is likely 
to fall far short of the hopes of the states, tribal governments, and 
community-based organizations concerned about the cleanup of 
military ranges.

The current draft proposes that regulators and non-Defense federal 
property owners - such as the Interior Department - be given 30 days, 
from the date of dispatch of decision documents, to provide written 
concurrence or non-concurrence. Such differences may be resolved 
informally. Or the parties may enter into written agreements providing 
for Alternative Review Procedures and Dispute Resolution, as long as 
- proposes the rule - there are no provisions in those agreements for 
fines and penalties. Finally, if all else fails, the draft proposes a two-
step process in which the dispute is elevated within the armed service 
that developed the decision. Final authority remains within the 
military.

This is only a minimal improvement over previous proposals. It's like 
having the fox's grandparent guarding the henhouse, as opposed to 
leaving authority with the fox itself.

In the rule, DOD also asserts that there will be only one regulatory 
agency - that is, the state environmental agency or U.S. EPA - with 
authority at each facility. Sometimes it's true, but it appears to go 
further than insisting that the lead agency be clearly defined, and it is 
inconsistent with the many three-party federal facilities agreements that 
exist at "Superfund" National Priorities List (NPL) sites.

The new draft does not resolve concerns over how the new rule would 
interface with other cleanup authorities. Since "Other Constituents," 
not just explosives, are found on munitions ranges, the rule discusses 
how they would fit into the clearance and cleanup process. 
Unfortunately, since those constituents are still covered by other 
environmental laws, combining the Defense Department process with 
other processes may turn out to be complex and difficult.

In the draft, the Defense Department proposes to develop a Risk 
Assessment model for munitions ranges. While there are several 
projects underway to do exactly that, there is no widely accepted 
approach. EPA has criticized the Defense Department for moving 
ahead without such as model. The draft's response, calling for 
consultation with EPA and the states, is unlikely to satisfy the critics.

Throughout the document, the Defense Department replaces the term 
"presumptive response" with "accelerated response," but I could find 
no substantive change to justify the claim of speed-up. Perhaps 
Defense lawyers suggested this as a way of distinguishing their term 
from EPA's clearly defined "presumptive response," but I think the 
"presumptive " term is more appropriate.

In response to criticism from Indian groups, the new draft contains 
several references to Native American tribes. However, it appears to 
miss the point. Indian nations are lumped with local governments and 
other stakeholders. At no place in the draft does the Defense 
Department acknowledge that tribes have governmental regulatory 
authority comparable to those of states.

For those readers who have not seen my previous comments about the 
Defense Department's range rule exercise, I want to repeat three key 
points:

1. It is imperative that the states and EPA retain the authority to 
determine cleanup levels and remedies, as well as guarantee proper 
public participation.

2. The Defense Department's approach of applying successive levels 
of presumptive responses is a practical way to address the universe of 
contaminated ranges. That approach is consistent with full regulatory 
oversight.

3. None of the regulations, rules, and procedures will make much of a 
difference unless additional resources are devoted to research and 
development on wide-area identification and remediation of 
unexploded munitions.

Lenny Siegel