DEFENSE PROPOSES RANGE RULE

[Lenny Siegel <lsiegel@igc.org>]

DEFENSE DEPARTMENT PROPOSES RANGE RULE
by Lenny Siegel

On September 26, the Department of Defense finally published the
proposed rule on "Closed, Transferred, and Transferring Ranges
Containing Military Munitions," generally known as the Range Rule, in
the Federal Register (pp. 50796-50843). Written comments on the rule
will be accepted until December 26, 1997, and the Department has
scheduled four Public Information Forums and a meeting of the Range Rule
Partnering Team to take input from non-federal stakeholders. To request
a copy of the Range Rule or obtain related information, call toll-free
888/541-1081.

This rule is likely to have an enormous impact, for it will determine
how the Department of Defense responds to unexploded ordnance
(munitions, etc.) on ten to twenty million acres of land within the
United States. Much of that land has already been transferred to
non-federal entities, and millions of acres of former range land are
already being managed by the Departments of Interior and Agriculture.
The range response process outlined in the rule will determine to what
degree the public can safely use those lands. It will also define the
opportunity for making land currently under Defense Department
stewardship available for non-military use.

The Department of Defense (DoD) has engaged in a lengthy, commendable
interchange on the Range Rule with other federal agencies, state and
tribal regulators, and public stakeholders. Consequently, the proposed
rule is in good shape. Language is relatively clear. Details have been
worked out. But fundamental questions still divide the Department of
Defense, which has a interest in maintaining as much control as possible
over the range response process, and other constituencies.

WHOSE SANDBOX?

First and foremost, at facilities not on the Superfund National
Priorities List (NPL), the rule will, potentially subject to other legal
authorities, determine who decides whether, how, and when to fence off
and/or clear ranges contaminated with unexploded ordnance and possibly
other hazardous substances. (At NPL sites where federal facilities
agreements cover former impact ranges, the Range Rule will apply only by
agreement of all signatories.) 

The Defense Department proposes to consult with the public and seek
"concurrence" from regulators throughout the process. Though this
process would substitute for regulation under other hazardous waste
laws, the devil this time is NOT in the details. It's in the question:
Who decides when decision-makers representing different agencies
disagree? 

In the actual proposed rule, the Defense Department proposes, as it has
all along, that Pentagon political appointees will resolve all disputes
with state and tribal regulators. In support of its position, it argues
persuasively that the military has a near-monopoly of ordnance-handling
expertise, and that its personnel and contractors are put at serious
risk whenever they walk out onto an ordnance-contaminated range. The
Pentagon doesn't want to give other agencies effective control over its
allocation of funds, and it doesn't want environmental interests to
prevent it from training or weapons-testing. Finally, it contends that
under the statutes it is relying upon to develop the rule, it cannot
hand over authority to other bodies.

Many of us outside the Defense Department believe, however, that the
Department's proposal is essentially self-regulation. Putting a Pentagon
official at the top of the dispute resolution chain colors the entire
process of consultation and concurrence. Regulatory agencies that
normally exercise enforcement powers over polluters will find themselves
trying to strike weak deals early on to ensure that at least something
is done to protect the public. In the absence of outside authority, the
Pentagon's need to support its war-fighting mission will limit the flow
of resources to range cleanup.

The Range Rule Partnering Team, made up of representatives from the
Defense Department, other federal agencies, state regulators, and tribal
representatives - I'm a member, too - debated this issue extensively. In
response to heavy criticism, the Defense Department agreed to list two
additional options for dispute resolution in the proposed rule's
preamble. The first alternative, placing final resolution in the hands
of governors and tribal leaders, it rejects outright. But it is
seriously considering another option:

"Under this option, should the Secretary of the responsible DoD
component's military department and 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
acknowledging the inability of the responsible DoD component and the
State or tribe to resolve the dispute and recognizing that the
responsible DoD component and the State or tribe may pursue their
authorities under any applicable law."

During the comment period, we will all learn whether this alternative
approach is acceptable enough to the public. Later we'll hear from the
Defense Department exactly how seriously it takes the proposal.

FEDERAL LANDS

For the first time in any public version, the proposed Range Rule
contains language describing the process for determining when the
Defense Department will conduct further responses on land transferred to
other federal agencies, particularly when land use plans change. When a 
federal land management agency and the Defense Department disagree over
who should pay for additional cleanup, the dispute will be resolved by
the White House Office of Management and the Budget (OMB), according to
the following five criteria:

"(1) The importance of the proposed additional response action in
meeting the Federal land manager's obligations or responsibilities.

"(2) Any reasonable alternatives by which the Federal land manager could
satisfy its obligations and responsibilities, including alternatives
that utilize innovative technology or that require no additional
response action.

"(3) The cost and cost-effectiveness of the proposed additional response
action in comparison to the other reasonable alternatives.

"(4) The cost of the cleanup to the Federal government as a whole.

"(5) The availability or expected availability of appropriated funds at
each of the respective agencies to fund or perform that proposed
additional response action."

It's not unusual for OMB to resolve dispute among federal agencies.
After all, it represents the President. However, the proposed criteria
are subject to wide interpretation. Will Interior and Agriculture be in
a position to challenge Defense? More important, will the public's right
to use its lands be adequately protected? Or will the high cost of
safety place these lands permanently off limits?

HOW CERCLA-LIKE IS IT?

The range response process proposed in the rule is partially derived
from CERCLA (the Comprehensive Environmental Response, Compensation, and
Liability Act, or Superfund Law). It draws upon the National Contingency
Plan, and much of its approach seems drawn from CERCLA removal actions.
The proposed rule divides the process into five, interactive phases:

Identification
Range Assessment and Accelerated Response
Detailed Range Evaluation and Site-Specific Response
Recurring Reviews
Administrative Close-Out.

Note, however, that it asserts, "the Department of Defense is never
fully relieved of its obligation to address environmental damages caused
by military munitions or other constituents."

Since the Defense Department first floated the Range Rule idea, I have
supported the multi-stage process even while questioning not only the
decision-making process but the legal justification of the rule itself.
Now, however, I believe the sufficiency of the phased process is worth a
fresh look. Is the rule strong enough to move the Army (and other
military components) beyond prevailing practices and technology?

Currently, the military plans a removal action by having a contractor
prepare an Engineering Evaluation/Cost Analysis (EE/CA). These are
standard CERCLA documents. If, as I believe, the EE/CA for Fort Ord's
proposed ordnance clearance is representative, then the EE/CA simply
lays out guidelines for deciding which areas are to be cleared, and
which are simply to be posted and fenced off. The depth of clearance of
any particular site is determined by the anticipated future land use, as
well as knowledge of the terrain and size of ordnance.

Where below surface clearance is called for, the Army initiates a
"mag-and-flag" operation. That is, it usually hires firms made up of
retired explosive ordnance disposal specialists to lay out a grid over
the land to be cleared, walk the grid carrying hand-held magnetometers,
and place flags in the ground whenever they hear the sound of something
magnetic. Later they return to dig up the sources of those readings,
either removing or detonating in place any suspected unexploded
ordnance.

As my comments on the Fort Ord EE/CA suggest, these current practices
are unreliable; they are too costly; and they fail to take advantage of
existing techniques, let alone emerging science and technology. EE/CAs
as they are currently developed simply establish formulas for plugging
in minimal site-specific information.

The proposed Range Rule draws upon the CERCLA process; it attempts to
streamline it while retaining essential studies and decision points.
Collectively, we need to find out. Will it perpetuate the existing,
inadequate "plug-and-play," "mag-and-flag" approach to range response?
Or will it encourage the completion of necessary studies, early in the
response process, and enable the use of innovative remediation
technologies?

MANY AUDIENCES

Comments on the Range Rule go directly to the Department of Defense,
which is primarily responsible for issuance of the final rule sometime
next year. However, in the complex world of environmental regulation and
remediation funding, there are other, equally important audiences.

U.S. EPA. 

In its proposed Munitions Rule, EPA proposed to "sunset" the regulation
of unexploded range ordnance as a hazardous waste once the Defense
Department finalized a Range Rule meeting specific criteria. When EPA
actually issued the munitions rule early this year, it was silent on the
issue. If the Range Rule does not adequately protect the public, if its
public participation process is insufficient, or if the Defense
Department does not come up with a reasonable method for evaluating the
risk of exposure to unexploded ordnance, it can refuse to defer. That
is, the Defense Department would have its own process, but other
regulatory authorities would clearly remain in effect.

State Regulators and Attorneys General. 

The states are generally suspicious that the Defense Department wants to
avoid its environmental responsibilities. While they have "partnered"
with the Defense Department in the development of the Range Rule, some
of them may decide to join the lawsuits which are expected to challenge
the Defense Department's authority to supersede environmental laws. Some
of those cases are likely to be filed as soon as the final rule is
promulgated. Others will emerge as states apply other legal authorities
in an effort to influence range cleanup.

The President and Congress. 

Ultimately, Congress and the President have the power to redraw the laws
upon which the Range Rule is based and to which the courts will refer
when determining the legality of the entire Range Rule process.
Furthermore, in the final analysis, federal appropriations, not
regulation and enforcement, will determine the national level of effort
for range response. No matter what the rules say, if the public insists
that land be made safe, then there's strong likelihood that the military
will devote substantial time and effort doing exactly that.

Lenny Siegel
Director, SFSU CAREER/PRO (and Pacific Studies Center)
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@igc.org