Range Rule Comments

[Lenny Siegel <lsiegel@igc.org>]

The deadline for submitting comments on the Department of Defense's
Proposed Range Rule is December 26, 1997. E-mail submissions may be sent
to fbarrule@b-r.com.

Here are my comments. Most of the substance should be familiar to those
who read either this newsgroup or the Citizens Report on the Military
and the Environment (our hardcopy newsletter.)

Lenny

*****

CAREER/PRO
A program of the San Francisco Urban Institute
SFSU Downtown Center, 425 Market Street, San Francisco, CA 94105
Voice: 415/904-7750; Fax: 415/904-7765: Internet: aimeeh@igc.org

December 22, 1997

DoD Range Rule
P.O. Box 4137
Gaithersburg, MD 20885-4137

Dear Sirs/Mmes:

 I am submitting these comments both by mail and E-mail.

 There is a great deal of useful process in the proposed Range Rule, but
there are three fundamental problems. First, the Dispute Resolution
procedure must be modified so the responsible party is not also the
court of last resort. Second, the collection of data, particularly
during Range Evaluation, should be improved. And third, the potential
reliance upon long-term land use controls requires a larger for the
public and local land use planners.

DISPUTE RESOLUTION

 The proposed rule places the final stage of dispute resolution for
unexploded ordnance (UXO) hazards within the Department of Defense. I
find this unacceptable. While it is likely that the number of decisions
elevated for top-level resolution will be small, the institutional
position of the top of the dispute-resolution chain is likely to
influence decisions at all other levels.

 Just as polluters who release toxic substances into the environment are
not given the final say over the extent, method, and timing of cleanup,
so should the Defense Department's UXO response be regulated. Many
people within the Department, including high ranking officials and
officers, do not think UXO cleanup is part of their mission. One can
expect them to oppose, as they have many times in the past, the
expenditure of funds to restore UXO-contaminated land, especially when
risk can be minimized by restricting public access or use.

 Those who fear that effective external regulation would bankrupt the
Defense Department or at least undermine its core mission should look at
the experience of toxic cleanup. Though regulatory agencies have clear
authority to enforce hazardous waste laws, they cannot force the Defense
Department to expend funds that Congress has not appropriated. While
sometimes this tension of budget vs. regulatory requirements resembles
an irresistible force meeting an immovable object, in virtually all
cases the tension is resolved. In fact, recognition of the conflict of
authority has actually encouraged partnership. It's a partnership that
works because both partners have decision-making authority.

 The same division of authority should work for range response.
Regulatory authority, in the form of the power to resolve disputes,
should lie with the states and Indian nations. The Defense Department
retains its power over the budget.

RANGE EVALUATION

 The Range Evaluation, as described in the proposed rule and its
preamble, is insufficient. If followed as a bare minimum, it will
encourage more of the inadequate studies that are now the norm for range
remediation. Though it's possible for exceptionally competent and
independent project managers to do more, it's hard for them to justify
additional up-front work in the absence of a policy mandate.

 The Range Rule should mention at least the following three additional
data collection thrusts:

1. UXO Migration or Exposure. In many terrain and climates, buried UXO
tends to migrate or otherwise be exposed on the surface. At what rate,
and from what depth might such exposure take place? One cannot determine
a safe depth of clearance without studying this variable.

2. False anomaly density. A major portion of the cost of UXO removal,
using conventional technology, is the removal (or at least the
inspection) of "false anomalies" such as shrapnel, other metal objects,
and even rocks. To determine the comparative cost-effectiveness and
reliability of available technologies, it makes sense to sample for
"background."

3. Sensor behavior. The accuracy and depth of many UXO sensors vary
widely with terrain, vegetative cover, and soil moisture content. Before
considering tools for UXO detection, it often makes sense to test them
at the cleanup site. Where weather variation is significant, it may make
sense to test them there during different times of year.

LAND USE

 Wherever the response to UXO involves the establishment of long-term
physical or legal institutional controls, the agency responsible for
long-term land use planning must be part of the process. While the rule
addresses in detail how federal land management agencies should interact
with the Defense Department, it does not create a formal role for
non-federal land use agencies. At a minimum, such jurisdictions -
principally local cities and counties - should be asked to review and
concur with any response decision that limits the land use of property
under their control or, in the case of closing bases, intended control.

 Furthermore, if long-term institutional controls are considered
integral to the response, then there should be provision for including
the members of Restoration Advisory Boards or Extended Project Teams, in
scheduled recurring reviews. More important, there should be an ongoing
mechanism for such local residents to request an unscheduled review if
they believe that the controls are breaking down.

OTHER CLARIFICATIONS

 I have four other points which I believe should be clarified in the
rule:

A. In subsection 178.2(b)(4), it should be clarified that
UXO-contaminated areas in Alaska and the Pacific, even where World War
II combat took place, are not exempted from the rule as "historic
battlefields."

B. It should be clarified in subsection 178.4(j) that "other
constituents" may also include explosive byproducts, such as heavy
metals, as well as residual components.

C. I am concerned about the discussion in the preamble comparing the
administrative procedures for "Accelerated Responses" with CERCLA
time-critical removals. Time-critical removals tend to discourage
regulatory and public involvement - until after the fact. That appears
to be inconsistent with the intent of the proposed Range Rule as a
whole.

D. The tracking system described in section 178.6 should include
information describing known incidents in which members of the public
were killed, injured, or directly exposed to explosive hazards on the
range or removed from the range, such as "souvenir" ordnance.

Sincerely,

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