Range Rule

["Theodore J. Henry" <thenry@umabnet.ab.umd.edu>]

Hello All:

I recently attended the Range Rule session held in Baltimore. There were
not too many people there but I made sure I brought enough questions. 
There will be many days ahead to discuss the different points of the
Range Rule so I will only cover one or two concerns today (well, I tried
to be brief).

Just as is the case in a Proposed Plan, the rule presents the concept but
not the "nuts and bolts" of how it is going to be accomplished. There is
considerable risk that the rule will unfold just like a recent remedial
action at APG. We submitted comments on the proposed plan, and certain
responses stated that our concerns were design phase questions and that we
would be involved during that phase. I received the design phase
documents two days after the excavation began (and I have been working
with APG personnel for 4 years). And this is not the only example I could
give of the CERCLA process failing us, so one should be concerned when the
DOD references this approach so much.

There is little quality input a scientist can have right now. There are
many plans (such as the risk assessment model) referenced that are being
drafted but they are not available at the present time for review. While
this situation may be unavoidable, it does not change the darkness in
which the community stands as a result. 

Even simple things such as who decides the definition of an "imminent
hazard" has been major stumbling blocks for APG communities and need
better clarification within the rule (imminent hazard and likelyhood of
release migration within one year are given as examples of factors
affecting prioritization; the latter is not discussed here but clearly
raises many investigative and scientific questions that cannot be
answered by what is contained in the rule). While there are probably
better examples from the preamble where "who is making a decision (and
how)" becomes important, I use the imminent hazard scenario because it is
a textbook example of DOD control. To expand on this, lets look at how what
appears to be a small, single decision acts as a significant point
of control for a much larger issue:

1)A category of Non-Stockpile CWM is buried chemical-filled munitions,
2)but the NS Program is not charged with getting them out of the ground
(they only consider buried CWM in a qualitative context to assess the
potential types and general quantities possibly recovered in the future)
3)at a restoration site on APG, the Installation Restoration Program (IRP) 
then would be the responsible party for retrieval;
4)However, contradicting how many would interpret Defense Environmental
Restoration Program (DERP) guidance, the Pentagon has the policy that the
IRP can only use DERA funds (the IRP's funding) if special permission is
granted by the Deputy Undersecretary of Defense for Environmental Security
5) the basis for this permission is if there is an imminent hazard, a
decision made by pentagon level officials who are far removed from the
installation and the local communities; we have been informed that 
"imminent" basically means it is going to go off tomorrow (which
is a tough requirement to meet).

As a note to my above understanding, based on our experiences, it is not
difficult to determine that this level of control by DOD (which is
hard to fight by active participants and hard to see by the uninvolved)
has been guided by 1)DOD perception that excavating UXO would drain DERA
(which is illogical and irrational, but for another posting) and 2) by the
foreseen deadlines of the Treaty. This control was further established at
APG by having the Pentagon change the clean-up of potential CWM/UXO from a
remedial action to a removal action (lead agency benefit) after it was
part of the draft PP for almost 2 years.

I use such a lengthy example for two reasons. First, comments submitted
and questions asked at the future forums need to focus on getting more
specifics. For instance, we currently do not know what factors will
direct one to decide whether a range does or does not "have potential for
future use" which will be a major point (along with the incompatible use
factor) in determining if a range is classified as closed or inactive. I
expressed that such decision trees must be clear and that an installation
should not hesitate in getting RAB concerns before making the final
assessment. People who have come to know an installation very well may
have some valuable input and possibly affect whether range A or B is
closed in a situation where the installation acknowledges both are not
needed. As a side note, it should be noted that efforts are already
underway to assess the ranges at the installations and bases across this
nation, and given the lack of specificity, I am concerned about the
chronic train leaving the station.

The second reason for my long example is the major point I bring to you
today (I know "well it took me long enough") - The place where everyone
can have considerable input presently and where DOD can step out of the
box and beyond the ailing community participation regulations is public
participation. The rule lacks concrete guarantees for public involvement.
The rule often refers back to CERCLA as a base and adds more public
meetings; however, CERCLA is mediocre regarding citizen involvement and
public meetings are worthless if the citizens have not been involved for
a long time. In turn, I think there needs to be dispute resolution
process for the community. 

 I have not reviewed the dispute resolution process used for regulatory
agencies in any detail, and I am looking for some guidance on where to
find the meat of the current dispute resolution processes that exist.
But somehow, there must be a modified process in the rule that puts some
pressure on the project manager or other military representative to
resolve issues with the community. If there is no formal option for the
community to go above this person, the community will face "pot luck" odds
as to whether they have a point of contact that believes the community
should be involved or whether they must deal with a person who meets the
strict requirement of the law because they have too. You can be sure that
there will be significant pressure exerted by certain agencies and
individuals within DOD (on other agencies and individuals working
with the public) to only meet the absolute minimum of the requirements (I
have meet them). Only where there is a specific format which will
invoke the involvement and time of his/her superiors (including
Pentagon-level officials), if the project manager or point of contact
fails to resolve issues, will there be any effort by those I call the "old
boys (although many of them are not old)" to work with the public and
compromise and resolve concerns.

Certainly, this structure will have no legal footing, but it would show a
commitment by the rule and policy writters that they are serious about
running an open process with integrity. It is simple, if a person or
agency is willing to put time on the line (which is money) to try resolve
problems, then they are willing to work. If there is not much commitment,
there is a significant possibility that it is window dressing. This
commitment is critical given the lack of specificity and available
implementation plans, and the difficulty associated with transforming a 
good policy into a valuable tool at specific sites. 

The community is being asked to take a lot of risks, including 1)believing
that DOD will make public health and environmentally sound decisions in
the face of fiscal needs for weapon and equipment development and the
larger mission, and 2) to accept the sweet appearance of a rule and a
smile without the nuts and bolts that will guide the decisions and
implementation. A binding commitment to resolve issues is not too much to
ask for since in the end, DOD can say "we exhausted our dispute
resolution approaches and must move forward as the lead agency". This has
been said to the EPA, so certainly it should not worry DOD if, in
certain circumstances when dealing with a small group unwilling
to be logical or compromise, it must be said to a few citizens. 

With this presented, I leave it you to help explore this or other
possibilities for community involvement. The rule must contain more than
public meetings where people are given rosy information, or responsiveness
summaries where responders can write 3 sentence answers and the citizen
has no protected pathway for follow-up to address concerns yet unresolved.
And yes, the extended project teams discussed in the rule have merit and I
like them, but again, the nuts and bolts aren't there, and and without
them, the running of these teams will be similar to RABs - those that are
good will at least be functional, and those run by the "old boys'
defensive thought processes" will be very bad.

Sincerely

Ted Henry