RANGE RULE: Comments

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

RANGE AUTHORITY
notes by Lenny Siegel
November 8, 1996
As a regulatory framework threatening the ability of states and tribes 
to protect their people, the military Range Rule is fundamentally 
flawed. However, as the outline of a process for a systematic national 
effort for identifying former ranges and protecting public safety, 
public health, and the environment, it's a giant step forward.
Though there are many areas where the Range Rule can, should, and/or is 
being improved, one area of contention stands above the rest. On the 
one hand, the military doesn't want to give regulatory agencies a 
"blank check" to require complete cleanup wherever and whenever local 
interests perceive a safety, environmental, or economic threat. On the 
other hand, regulators and the affected public note that the military 
has ignored many hazardous, munitions-contaminated ranges for decades. 
Key decision-makers - in the Defense Department and as well as Congress 
- believe that every dollar spent remediating old ranges is one dollar 
less available for military readiness, and the people who live near (or 
even on) those properties are not confident that the military will take 
any action in the absence of external mandates.
Unless this conflict is resolved before the Defense Department 
promulgates its rule, implementation of the range restoration process 
is unlikely to ever get off the ground. It may be possible to solve the 
problem at two levels. First, the process built into the Range Rule 
should enable the creation of a risk management methodology that meets 
the needs of the military, its regulators, and the public. Such a 
process would combine physical controls, legal (deed or zoning) 
controls, removal, and other forms of remediation and restoration, over 
a period of time. Properly designed, it would minimize conflicts over 
how and when to address range problems. By now there are numerous 
precedents for such a cooperative approach - where the need to take 
action has been acknowledged.
Second, there needs to be a careful balance between military and 
regulatory authorities. The best model that I know is the current 
approach to toxic and radioactive cleanups at federal facilities. The 
regulated agency (the polluter) controls the budget-building process 
and the regulators have the final say on compliance with the law. 
Regulators can force action only to the degree that Congress actually 
appropriates money. If the regulated agency doesn't have funds, the 
authority of the regulator is limited. On the other hand, given the 
regulated agencies ability to program funds among sites and facilities, 
the regulators can influence cleanup decisions. The system is 
imperfect, but it functions. It rarely breaks down entirely.
To apply this model to range cleanup, the Defense Department would have 
to establish one or more budget accounts devoted to range remediation 
(unexploded ordnance, or UXO on ranges). One account could cover 
closed, transferring, or transferred ranges, or they could be handled 
separately. There could be devolved accounts for each Defense component 
and formerly used defense sites, or the program could be consolidated. 
The Defense Environmental Restoration Account was devolved this year, 
but it was originally formed as a consolidated account to promote 
consistency among the Defense components.
The existence of a separate UXO budget system would allow the political 
process - through Congress - to determine the "proper" level of 
national support for this program. Regulators could not force the armed 
services to divert money from operations and maintenance or toxic 
cleanup to carry out range remediation activities. Just as Defense has 
developed a system for comparing other hazardous waste risk across 
sites and facilities, it could implement a UXO relative safety 
evaluation system at ranges. But it would not have to compare apples 
and oranges. To facilitate constructive state oversight, these new 
accounts would provide reimbursement to the states under cooperative 
agreements, as provided for toxic cleanup under the Defense State 
Memorandum of Agreement system.
While regulators would be constrained by fiscal realities, they could 
assert their authority through the concurrence role defined in the 
range rule, with one fundamental change. The state governor, not 
someone at the Defense Department, would be the final word in the 
resolution of disputes. Thus, while the form of state regulation might 
change from the existing hazardous waste laws, substantive oversight 
would remain. Where Tribal regulatory authorities are in play, the 
tribal president (or similar leader) would assume a similar role.
Placing a governor or tribal president at the top of the dispute 
resolution chain would be more than a symbolic gesture. It would make 
clear that despite its expertise, the institution responsible for range 
contamination - the Department of Defense - does not unilaterially 
decide what, when, and how to address that contamination. External 
authority, which hopefully will be rarely called upon, will reinforce 
efforts to provide adequate resources for UXO research and development 
and the training of civilian UXO technicians.
Most important, acknowledging state or tribal oversight in this way is 
likely to build trust in the program. The existence of similar 
regulatory frameworks allows regulators, landowning agencies, and the 
public at large to "roll up their sleeves" and form working 
partnerships at the site level. Rarely do participants in such 
partnerships fall back on their regulatory framework. In fact, the 
existence of such a policy safety net (regulatory authority) makes it 
easier to solve problems without bringing in legal staffs.
If one assumes that political trends, well underway, will force the 
Defense Department to address range UXO, then it, too stands to gain 
from such an interactive system. Not only will the range rule be 
welcomed without widespead legal challenges, but states, tribes, and 
communities will become problem-solvers in the process, not 
adversaries. While the Range Rule can be written to accomodate this 
approach, without further legislation, establishing a UXO account (or 
accounts probably will require Congressional action. Given the 
long-term magnitude of the UXO issue, winning such support on Capitol 
Hill might not be easy. But regardless of the outcome of the Range Rule 
debate, Congressional support will be necessary to implement a new or 
improved program. In fact, a common front between the Defense 
Department and states, tribes, and community groups should make such 
support easier to obtain.