From: | Lenny Siegel <lsiegel@igc.org> |
Date: | Sat, 09 Nov 1996 04:32:30 -0800 (PST) |
Reply: | cpeo-military |
Subject: | RANGE RULE: Comments |
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. | |
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