RANGE RULE New Draft

[Lenny Siegel <lsiegel@igc.org>]

NEW RANGE RULE DRAFT

The Department of Defense (DOD) has sent a draft of the proposed 
Range Rule on "Closed, Transferred, and Transferring Ranges 
Containing Military Munitions" to the White House's Office of 
Management and the Budget for review. With what probably will be a 
small number of revisions, it will publish the Proposed Rule for 
public comment sometime this spring. During a 90-day public 
comment period, the Defense Department will discuss the proposed 
rule with state and tribal representatives at a meeting of the Range Rule 
Partnering Team, and it will seek public input at four meetings across 
the country. We will announce those meetings as soon as the locations 
and dates are set.

The draft, officially dated February 10, 1997, may be requested from 
the Range Rule Information Center. Phone: 800/870-6542. Fax: 
800/870-6547. Hearing-Impaired: 800/870-6557. E-mail: 
<fbarrule@b-r.com>. Mail: P.O. Box 3430, Gaithersburg, MD 
20885-3430. It may also be downloaded from the Environmental 
Security Web-site, http://www.acq.osd.mil/ens/. The current version, 
including the preamble, is 136 pages typewritten. References below to 
the draft proposed rule include the preamble. This summary and 
analysis does not cover all provisions and sections of the current draft.

NINE PHASES

The range response process proposed in the February 10 draft is 
essentially the same as that proposed in earlier drafts. Modeled after 
CERCLA (the Comprehensive Environmental Response, 
Compensation, and Liability Act, known commonly as the Superfund 
law), the proposed phased process makes common sense:

1. Identification of Closed, Transferred, and Transferring ranges. 
This should result in the listing and description of hundreds of impact 
ranges containing unexploded ordnance (UXO). These ranges are on 
private lands, land managed by other federal agencies, and Department 
of Defense facilities. However, active ranges and potentially active 
ranges - officially "inactive" - are not subject to the Range Rule.

2. Range Assessment/Accelerated Response. In this stage, DOD will 
determine the status of each range and initiate responses to limit public 
exposure to UXO hazards. These responses could include physical 
controls, such as fences, signs, or erosion control measures, or legal 
controls such as dig permits or deed restrictions.

3. Evaluation of the Results of Range Assessment/Accelerated 
Response. Following the initial characterization and management of 
risks, DOD will determine if a) no further action is necessary; b) only 
recurring reviews of the accelerated response actions are required; c) 
it's necessary to move to the next stage, a Range Evaluation; or 4) 
further responses are technically impracticable. 

4. Range Evaluation. The Range Evaluation is more detailed and 
comprehensive than the initial Range Assessment, using field 
sampling as well as archival data. During this stage, DOD will conduct 
a Range Risk Assessment to identify the sources of risk; receptors, 
pathways, and the potential for exposure; and the effects of possible 
exposure.

5. Range Evaluation Findings. Following the Range Evaluation, DOD 
will determine that a) the risks are being effectively managed, 
requiring only recurring reviews; b) addressing the risks would be 
technically impracticable; or c) a site-specific response is necessary. If 
a site-specific response is required, the preparation of the Range 
Evaluation Report may be deferred, with the information merged into 
the response report.

6. Site-Specific Response Evaluation. At this stage DOD will use the 
nine criteria of the National Contingency Plan to screen and select a 
site-specific response to address explosive as well as toxic hazards on 
the property. That includes the consideration of applicable or relevant 
and appropriate requirements (ARARs) from state and federal 
environmental statutes. Unlike some of the early drafts, this version of 
the proposed rule recognizes and emphasizes that the safety or range 
response personnel is already built into the criteria of the National 
Contingency Plan.

7. Site-Specific Response Implementation. This is the stage at which 
the wholesale removal of suspected UXO, as well as identified toxic 
contamination on a range, will take place. Though listed as a separate 
phase, DOD expects that implementation will often begin before 
finalization of the Response Evaluation document.

8. Recurring Reviews. DOD will review each site three years after (or 
sooner) the implementation of remedial action "to determine if the 
responses taken continue to assure explosives safety, protect human 
health and the environment, and prevent off-range releases of Other 
Constituents, and to provide an opportunity for assessing new 
technology." Subsequent reviews will take place at seven years, 
twelve years, and every five years (or sooner) thereafter until close-
out.

9. Ending the Range Response Process. When remediation is 
complete and risks are minimal, DOD will prepare a Range Close-Out 
Report. However, DOD remains responsible should additional UXO 
be discovered on the property.

WHOSE RULE? WHO RULES?

The Department of Defense, with the backing of the White House, 
chose to incorporate the above process into its own rule because it 
wanted authority over key decisions. If U.S. EPA is satisfied with 
DOD's approach, it will add to the Munitions Rule - just finalized in 
February - language making clear that the Range Rule is the principal 
federal instrument for range response. {This may be subject to legal 
challenge, however, since Congress did not provide for such a delay 
or assignment of authority.) It's important to note, however, that any 
past or present military base governed by a federal facility agreement 
that covers UXO remediation will not be subject to the Range Rule 
unless all signatories of that document agree.

In an organization as large as the Defense Department, it's difficult to 
ascribe any single motive to policy decisions such as those that led to 
the range rule. However, there appear to be three key reasons why 
DOD decided to create its own "sandbox":

1. Full remediation of munitions impact ranges could cost tens of 
billions of dollars, draining money from the Department's principal 
mission: war-fighting readiness.

2. DOD has a near-monopoly over munitions expertise. Outsiders 
could mandate cleanup strategies that put Explosives Ordnance 
Disposal personnel as well as contractor employees at serious risk.

3. The regulation of ranges - including pressures to prevent future 
cleanup problems - might interfere with the day-to-day operations of 
the military.

On the other hand, many of us outside the military have pointed out 
that the U.S. has millions of acres of UXO-contaminated land. Little 
has been done to protect the public. The transfer of closing bases has 
been held up by UXO contamination. Only the threat of external 
regulation - particularly the Federal Facilities Compliance Act of 1992 
- has led the Pentagon to take range remediation seriously. DOD's 
unabated commitment to the development of new weapons, an 
anachronism in the post-Cold War, prevents it from adequately 
addressing UXO as well as other environmental hazards.

At some point, in the nine-phase process, someone will have to 
decide:

A) if a range should be remediated;

B) to what depth - that is, to permit what level of future use - should 
explosive hazards be cleared; and

C) how stringent should other responses, such as legal and physical 
controls, be to prevent public exposure to explosive and other risks.

To the credit of DOD and U.S. EPA, the Defense Department has 
repeatedly sought input from state environmental regulators, tribal 
representatives, and other stakeholders in the formulation of the Range 
Rule. The current draft calls for regulator concurrence, as well as 
consultation with the public at virtually every stage.

But early drafts of the Range Rule clearly put the military in charge. If 
a dispute over explosives safety issues - including UXO clearance - 
arose and could not be resolved among the various agencies in the 
field, a Department of Defense political appointee would have final 
say. Placing the military at the top of the dispute resolution chain, in 
my view, would affect the entire process, making it easier for military 
field representatives to avoid costly remediation.

Defense officials fear that giving regulatory agencies the ability to 
force UXO cleanup would be like giving them a blank check to draw 
upon the Defense budget, but experience with hazardous waste 
cleanup shows otherwise. No one can force the federal government to 
spend money that Congress does not appropriate, so there is a 
continuing tension between cleanup requirements driven by regulation 
and constrained budgets that force agencies to limit those 
requirements.

Though appreciative of Defense efforts to involve them in the 
rulemaking, state and tribal representatives - and I - have argued for an 
alternate dispute resolution framework. In the current draft, DOD 
acknowledges a second alternative which would place state governors 
and recognized tribal leaders at the top of the dispute resolution chain. 
However, it rejects that proposal, stating that their legal authorities do 
not allow them to turn over decision-making power to outsiders. (Of 
course, that's why DOD chose to propose a rule based upon those 
authorities.)

However, the draft proposed rule describes a third, compromise 
option, that it is willing to consider. This option establishes no final 
dispute resolver at the top of the chain: "Under Option Three, should 
the Secretary of the responsible DoD component's military department 
and the state governor or American Indian Tribal leader be unable to 
resolve a dispute by consensus, then the responsible DoD component 
would prepare a written statement which acknowledges the inability of 
the DoD component and the state or tribe to resolve the dispute and 
which recognizes that the DoD component and the state or tribe may 
pursue their authorities under any applicable law."

This fits the current version's general approach to other statutory and 
regulatory authorities. It states: "Nothing in this rule is intended to 
pre-empt state regulatory or enforcement powers or authority 
concerning hazardous waste or hazardous substances, nor is it 
intended to affect the waiver of sovereign immunity by the U.S. 
contained in the Federal Facility Compliance Act of 1992."

That sounds clear, but attorneys for the various parties interpret those 
existing authorities is widely (perhaps wildly) different ways. 
Furthermore, the eventual wording of EPA's Munitions Role could 
affect the applicability of those other authorities, if indeed range UXO 
is defined not to be a solid waste. It's quite possible that major 
disputes over range remediation will only be resolved in lengthy 
litigation culminating at the U.S. Appellate or Supreme Court level. 

Most of the people working on these issues, however, would prefer to 
expend their time and resources characterizing, containing, and 
remediating the problem, not on protracted litigation. If the Range 
Rule comes up with a workable compromise, that's probably where 
the military and most of the states will focus their efforts.

FEDERAL LAND MANAGERS

Millions of acres of former military ranges are now managed by the 
U.S. Department of Interior and, to a lesser degree, the Department of 
Agriculture. As with regulatory agencies, DOD encourages such 
Federal Land Managers to utilize the Range Rule's dispute resolution 
process, although it recognizes that they too may exercise other 
statutory authorities.

Furthermore, the preamble states: "DoD intends to enter into a 
memorandum of understanding (MOU) with Federal Land Managers 
to establish the general principle that DoD is responsible for the 
incremental O&M [operations and maintenance] costs attributable to 
Military Munitions (including UXO and including its associated 
constituents) employed by DoD at ranges under the responsibility of 
another Federal Land Manager, and at which DoD would be 
responsible under the proposed rule for the costs of the response, 
unless otherwise specified by law. Such an MOU would only be 
modified by mutual agreement of the parties. DoD and the Federal 
Land Manager would enter into site-specific MOUs to establish the 
costs for which DoD would be responsible at that range. The costs 
and the requirements would be established for a range as part of the 
response selection process called for under the rule, including the 
selection of the AR [accelerated response]."

While this language is an important recognition of the concerns of the 
land management agencies, it is unlikely to satisfy their desire to get 
DoD to commit to long-term remediation goals.

AMERICAN INDIAN TRIBES

In response to suggestions from a small number of tribal 
representatives who have had the opportunity to participate in 
discussions of the Range Rule, the current draft consistently includes 
tribal regulators in the process. That's a significant breakthrough, 
because contaminated ranges on Indian land are a festering problem.

However, the current version appears to limit Indian and Native 
Alaskan jurisdiction to properties owned or held in trust for a 
recognized tribe or village. It does not appear to included tribal 
regulation of ceded lands or land for which the tribe holds customary 
usage (hunting, fishing, gathering) rights.

UTILIZING NEW TECHNOLOGIES

For the past few years, there have been intense political struggles 
about who has the authority to mandate range remediation, but no 
matter who ends up winning these battles, the principal determinant of 
the extent of range remediation will be the development of new, cost-
effective technologies. Currently, even on ideal terrain, there is no 
cost-effective reliable way to clear UXO impact areas for unrestricted 
use.

Consequently, except for small, high-priority areas, sensible risk 
management strategies emphasize surface clearance and limitations on 
use or access. In most areas, this is acceptable only if such measures 
are considered temporary. Despite DOD's overall reluctance to do 
additional toxic cleanup at former bases, the Range Rule preamble 
states: "DoD also has stated that if technology limits the range 
response and the use of the land is restricted, but later improvements 
in technology allow for the removal of such a restriction, then DoD is 
responsible for conducting a later response, if doing so is consistent 
with the land transfer agreement and reasonably anticipated land uses 
that were originally identified."

TECHNOLOGY EDUCATION

The draft proposed rule, formulated because the military has unique 
expertise in the arena of munitions, recognizes the need to share some 
of that expertise. It mandates - for sites where a range assessment 
takes place - "a technology education program to assist regulators, 
American Indian Tribes, and the public in understanding the complex 
subject of UXO detection and remediation."

PUBLIC PARTICIPATION

The Range Rule provides for a continuing role for the affected public. 
In addition to CERCLA-like comment periods and public meetings, it 
provides for participation by Restoration Advisory Boards (RABs) or, 
where there is no RAB, an "extended project team."

The major limitation on public participation is the original proposal to 
put military decision-makers in charge. Limiting the practical authority 
of state regulators, not the public participation process itself, could be 
a major constraint upon public influence.

The current draft says that draft documents will go to regulators for 
review before they go to the public. This could invite a renewal of the 
"decide-announce-defend" method of government decision-making. I 
believe it would improve the quality of decisions - and definitely 
enhance trust - if RAB members were to receive draft documents at the 
same time as regulators.

LOOKING AHEAD

Regardless of how outstanding issues are resolved, the Defense 
Department is belatedly, but inexorably moving toward the creation of 
a program to address it major remaining environmental problem, 
unexploded ordnance on former military munitions ranges. Done 
properly, it could cost much more than some military leaders 
anticipate, but with a properly organized research and development 
effort up front, it can be done cost-effectively.

Now, as the various stakeholders negotiate the terms of the Range 
Rule, as well as the implementing language of EPA's munitions rule, 
is our window of opportunity to shape those decisions.