RANGE RULE: New Version

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

DEFENSE RELEASES NEW RANGE RULE DRAFT
On September 13, after several months of private discussions with other 
federal agencies (EPA, Interior, etc.) the Department of Defense (DOD) 
released a new draft of its proposed Military Range Rule, intended to 
identify a process for evaluating appropriate response actions on 
Closed, Transferred, and Transferring Ranges. The focus of the rule is 
narrower than EPA's Munitions Rule: it deals primarily with the 
identification, segregation, and remediation of former ranges 
contaminated with unexploded ordnance (UXO). Copies of the 124-page 
draft proposed rule and preamble, as well as shorter fact sheets, may 
be requested by phone, (800/870-6542), fax (800/870-6547), e-mail 
(fbarrule@b-r.com), or mail (DOD Range Rule, P.O. Box 3430, 
Gaithersburg, MD 20885-3430).
When it released the draft, DOD intended to publish a version in the 
Federal Register this December, followed by a 60-day comment period and 
four public availability sessions early next year. However, it is 
currently considering a request by state, tribal, and public 
participants in an Army-supported partnering team to delay publication 
while it considers informal comments from those non-federal stakeholders.
The Range Rule would establish a five-step process similar to the 
CERCLA process used for Defense hazardous waste sites (including UXO 
where it is being addressed), but it is intended to promote a more 
rapid response. Those steps are:
1) Range Identification. The Defense Department would identify and 
describe literally hundreds of closed ranges (on active bases, but 
irrevocably used for other purposes), transferring ranges (under base 
realignment and closure legislation), and transferred ranges (on 
formerly used defense sites). The latter two categories include 
transfers to other federal agencies as well as to non-federal entities.
2) Range Assessment/Accelerated Response. Formerly described as 
presumptive responses, this would include the removal of imminent 
hazards and, more frequently, the establishment of physical and legal 
controls designed to limit public exposure to UXO.
3) Range Evaluation/Site Specific Response. This step entails 
CERCLA-type study and cleanup, utilizing the nine criteria of the 
National Contingency Plan plus an additional paramount criterion of 
addressing explosive safety issues.
4) Recurring Review. Once the Accelerated Response or Site Specific 
Response is in place, DOD would return later to check the effectiveness 
of the remedy and even to consider the application of new technologies 
not available at the time the original response was made. However, in 
the current draft, the role of new technologies is not well defined.
5) Ending the Range Response Action, based upon an evaluation that 
there is nothing left to be done (unless new hazards are discovered.)
 
The rule provides for an ongoing process of public participation 
through restoration advisory boards or similar bodies, called extended 
project teams, where RABs do not exist. The current draft appears to 
contain conflicting section, so it is not clear that the public will 
have access to draft documents when regulators receive them.
The draft proposed rule calls for state concurrence in all major 
decisions, and if concurrence is not achieved, it establishes a dispute 
resolution process. Because Defense officials remain at the top of the 
dispute resolution chain, most (perhaps all) states and tribes find the 
current draft unacceptable.
Finally, the preamble to draft proposed rule contains a brief reference 
to a cost analysis which calls into question the depth and breadth of 
responses anticipated by Defense under the Range Rule. It says 
"Implementing this proposed rule equates to national incremental costs 
of $709,000,000. These costs are less than those of other alternatives, 
for example, a RCRA program that is anticipated to cost 
$12,984,000,000." Such a difference indicates less cleanup, not just a 
more streamlined process.
Lenny Siegel