[CPEO-MEF] EPA rules against Army appeal on munitions disposal

[joelf@cape.com]

please post.

In January, EPA Region 1. issued Administrative Order #4 requiring
use of a controlled detonation chamber for disposal of all unexploded
ordnance that can be safely handled. The National Guard Bureau
appealed that order. Yesterday, EPA in Washington denied that appeal.
The following documents are extremely important to those the
concerned about the health and safety of citizens living near
military munitions ranges.

Joel Feigenbaum
Cape Cod


Lieutenant General Russell Davis
Chief, National Guard Bureau
1411 Jefferson Davis Highway
Arlington, VA 22202-3231

Mr. Raymond Fatz
Deputy Assistant Secretary of the Army
Environment, Safety and Occupational Health
Office of the Assistant Secretary, Installations and Environment
United States Department of the Army
110 Army Pentagon
Washington, DC 20310-0110

Re:  EPA Administrative Order No. RCRA 1-2001-0014 to the National Guard
      Bureau Regarding Waste Munitions at the Massachusetts Military
      Reservation

Dear General Davis and Mr. Fatz:

      This letter transmits the final decision of the Environmental
Protection Agency (EPA) regarding the above-referenced imminent hazard
order issued by EPA Region I pursuant to Section 7003 of the Resource
Conservation and Recovery Act (RCRA).  Subject only to the revisions set
forth below to accommodate the National Guard Bureau (NGB), the modified
Order is now final for purposes of Section 6001(b)(2) of RCRA, and is
effective immediately.

      On January 4, 2001, Region I issued an order under Section 7003 of
RCRA, which required the NGB to use a controlled detonation chamber at
Massachusetts Military Reservation to dispose of  certain waste munitions.
On January 8, 2001 the NGB requested, and on January 12, 2001 received, an
opportunity to confer with EPA Region I.  On January 22, 2001, the NGB
requested a conference with the EPA Administrator regarding the Region I
order pursuant to Section 6001(b)(2) of RCRA.  Administrator Whitman
delegated the task of conducting the conference to me on February 15, 2001,
and the conference was held on March 16, 2001 with General Squier, Raymond
Fatz and other representatives from the National Guard Bureau and
Department of the Army.

      During that conference, the NGB and the Department of Defense raised
certain issues and questions regarding the Order, and also provided written
materials.  The principal issues discussed included:  (1) whether an
imminent hazard may be presented by the storage and disposal of waste
munitions at MMR;  (2) the types of waste munitions to which the Order
applied (i.e., the Order's scope);  (3) the applicability of the permit
exemption provided in Section 121(e) of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) to the activities covered
by the Order; and (4) a request for flexibility in the use of alternatives
to the Controlled Demolition Chamber (CDC) for disposal of waste munitions.
Each of these are summarized below, and are discussed in more detail in the
attachment to this letter.

      I have carefully considered the points and requests made by the NGB in
connection with this Order, and subject to the revisions noted below, have
determined that the order is an appropriate use of Section 7003 of RCRA in
this instance.

      First, the Order and the information presented establish that the
improper storage and open detonation of waste munitions which are safe to
move and be disposed of in a controlled manner may present an imminent and
substantial endangerment to human health and the environment, including the
sole source aquifer which underlies the Massachusetts Military Reservation.
Between September, 2000 and March, 2001, several hundred waste munitions,
including mutually incompatible groupings, were stored in close proximity
for an extended period of time in open air on the ranges at MMR.  This
storage was conducted in an unsafe manner and in violation of regulations
promulgated by the Department of Defense Explosives Safety Board.   In
addition, data presented in the Order establish that open detonation of
munitions at MMR causes the release of explosives in soils at high levels,
and that past practices of open detonation have caused significant
contamination of soils and groundwater at Demolition Area 1.

      Second, the revised Order clarifies that it does not apply to wholly
inert munitions, except to prohibit their open detonation at MMR.

      Third, on the facts of this case, the permit exemption provided in
Section 121(e) of CERCLA is not relevant because whether the permit
exemption applies in no way bears upon the determination of an imminent
hazard at MMR, or upon EPA's determination regarding the safe and proper
management and disposal of munitions subject to this Order.  I would like
to emphasize that EPA agrees that, under Section 121(e) of CERCLA, no
permits are required when a remedial or removal action taken pursuant to
CERCLA occurs entirely on-site.   However, the fact that an action could
have been takenI note that in the March 16, 2001 conference the NGB
conceded it has not satisfied the procedural requirements for a CERCLA
removal action with respect to the use of the controlled detonation
chamber. by the NGB as a CERCLA response action does not preclude EPA from
issuing an order pursuant to RCRA § 7003 to abate an imminent and
substantial endangerment.   In a case such as this, in which improper
storage and disposal, including open detonation, may contaminate soils and
threaten a sole source aquifer, it is properly within EPA's discretion to
act to establish enforceable conditions under which waste munitions will be
stored and disposed of.

      Fourth, to accommodate the NGB's request for flexibility and
cooperation between the NGB and EPA, the Order is modified to clarify that
the National Guard Bureau may propose alternative, equally protective,
disposal or treatment technologies for waste munitions for EPA review and
approval.  Lastly, the Order has also been modified as appropriate to
address other technical revisions that were included in the written
materials (but not specifically discussed) during the March 16, 2001
meeting.

      In closing, we appreciate DoD and NGB's commitment to address the
hazardous conditions at MMR, and urge your full cooperation in carrying out
cleanup in a safe and responsible manner and to share promptly information
regarding actions taken under this and prior orders with EPA.  Please
direct this information to Todd Borci, MMR Project Coordinator in EPA
Region I, at (617) 918-1358.  If you have any questions about this
correspondence, please contact Craig Hooks at (202) 564-2510.

                          Sincerely,



                          Sylvia Lowrance
                          Acting Assistant Administrator

Attachments

cc:    Brigadier General George Keefe, Massachusetts National Guard

                          Attachment 1



Issues:

A.   The finding of  imminent and substantial endangerment

As part of the environmental investigations undertaken by the NGB pursuant
to EPA's prior administrative orders under the Safe Drinking Water Act, the
National Guard Bureau has unearthed, and is expected to continue to
unearth, munitions and UXO which had previously been buried or disposed of
on the range at MMR.  Once unearthed and removed from their locations, such
items must be stored and treated or disposed of.

The Order, along with information regarding storage at MMR of the formerly
buried munitions, provides a reasonable basis for the conclusion that
unsafe storage and open detonation (the preferred practice for disposal
under military guidance, such as render-safe procedures) may present an
imminent and substantial risk to human health and the environment at MMR.
The use of a controlled detonation chamber, or an alternative
environmentally protective treatment/disposal method, for disposal of
buried munitions which are safe to move is an appropriate measure to
prevent the release or threat of release of contaminants to the environment
as a result of open detonation.

      1.  Threat from Open Detonation

The data summarized in Section VI of the Order establishes that in-place
open detonations of UXO and other munitions at MMR may present an imminent
and substantial endangerment to health and the environment through the
release or threat of release of contaminants, including solid wastes, to
soil and groundwater.   Numerous munitions-related contaminants have been
found in soils at MMR, including RDX, HMX, 2,4-DNT, 2A-4,6-DNT, 4A,2,6-DNT,
2,4-DNT, N-nitrosodiphenylamine, di-n-butylphthalate, dioxin, lead,
magnesium, barium, copper, cadmium, pentachorophenol, deildrin, and
nitroglycerin.   Many of these contaminants have been detected at levels
which  present a risk of leaching to groundwater.  Similar soil and
groundwater contamination has been found at other open burn/open detonation
sites across the United States.

At MMR, one contaminant of significant concern in both soil and groundwater
is RDX, which has been classified by EPA as a possible human carcinogen
(Group C carcinogen). The Lifetime Health Advisory for RDX in drinking
water is 2 ppb.  Consumption of large amounts of RDX by humans has caused
seizures, indicating that the nervous system is a primary target organ.
Exposure to other contaminants associated with open detonation, including
TNT, HMX, and PETN causes significant adverse health effects, as detailed
in Section VII of the Order.

a.   abSampling at MMR indicates that individual open detonation events may
present a risk to health and the environment.   In soil sampling conducted
at MMR after open detonations of munitions considered unsafe to move, the
explosives RDX, HMX,  2,4,6-TNT, 4A-2,6-DNT, 2A-4,6-DNT, PETN, picric acid,
and other compounds were detected in soils at levels which may present a
risk of leaching to groundwater.  For example, in April 2000, RDX was
detected in soil at 1,700,000 parts per billion (ppb) following the
detonation of a 105 mm high-explosive anti-tank projectile.Explosives and
other contaminants have been detected in post-detonation soil sampling even
when the round was ultimately determined to be inert, due to the
supplemental charge of C-4 which is attached to a round to conduct open
detonation.   EPA's preliminary fate and transport analysis indicates that,
at MMR, RDX soil contamination at 2,000 ppb will cause contamination of
underlying groundwater at levels at or above EPA's Health Advisory of 2
ppb.

b.   abThe evidence from MMR establishes that, over time, open detonations
have caused the release of explosives and other contaminants to soil and
groundwater at MMR. At Demolition Area 1, an area used to train soldiers in
open detonation and demolition of explosives,  RDX has been detected in
groundwater at 370 ppb, which is 185 times greater than EPA's Health
Advisory.

c.   abBuried munitions, buried UXO, and the RDX, HMX,  2,4,6-TNT,
4A-2,6-DNT, 2A-4,6-DNT, PETN, picric acid and other contaminants found in
soil are RCRA solid wastes.   Based on the sampling data from individual
open detonation events, the contaminants found in soil and groundwater at
Demolition Area 1, and the literature review cited in Paragraph 39 of the
Order, a release or threat of release of solid wastes exists from open
detonation of munitions.

Thus, open detonation of buried munitions at MMR may result in RDX and
other contamination in groundwater at levels higher than health-based
levels.  Open detonation of the buried munitions therefore may present an
imminent and substantial threat to the sole source aquifer underlying MMR
and to people who use the aquifer as a drinking water source.

      2.  Threat from Storage

Approximately 1626 buried rounds (i.e., disposed-of rounds) at MMR which
are potentially covered by the order are now awaiting disposal.  Of these
rounds, the NGB has submitted documents to EPA characterizing 1124 as
"potentially explosive," an additional 34 as potentially containing white
phosphorous, and the remainder as inert.  Under RCRA, the potentially
explosive munitions and those containing white phosphorous are considered
RCRA hazardous wastes.

Starting in September 2000, and continuing through about March 9, 2001, the
unearthed munitions awaiting disposal were stored in a manner that
presented a threat, and did not appear to be stored in a facility approved
by the Department of Defense Explosives Safety Board (DDESB).  Most of the
rounds were stored in open air piles on bare ground on the J-2 Range at
MMR.A handful of munitions which are not in open-air piles were contained
in a small metal shed.  As of February, 2001, the shed held five shells and
some chunks of C-4 explosive.  The white phosphorous rounds were stored in
open buckets of wet sand adjacent to the other suspected high explosive
rounds, in violation of distance and compatibility standards established by
DDESB.  The munitions piles were located approximately 1800 feet from
Greenway Road, which is used by the public, and no fence barred access to
the munitions from Greenway Road.   There was no effective barrier between
the shells and trespassers, who are known to visit the site, and no barrier
underlying the corroding shells to prevent RDX and other contaminants from
leaching into the ground and the aquifer below.

On about March 9, 2001, apparently in anticipation of the March 16
conference with EPA, the NGB moved the potentially high explosive rounds to
bunkers at the ammunition supply point at MMR.  The suspected white
phosphorous rounds remain in open buckets on the J-2 range. The NGB now
states that it has ample storage space to store both the rounds found to
date and rounds that may be found in the future.   However, many of the
1626 formerly buried rounds now awaiting storage are corroded and
deteriorated.   Indefinite storage of deteriorating rounds is not feasible,
and these rounds will ultimately have to be destroyed in the chamber or
otherwise disposed.  In addition, storage of the suspected white
phosphorous rounds on the J-2 range continues to pose an endangerment
because the NGB has not effectively limited access to the open buckets.



B.   Whether Use of the Controlled Demolition Chamber is Exempt from RCRA
Permitting Requirements by CERCLA § 121(e)

The NGB asserts that detonation of the buried munitions in the controlled
detonation chamber (CDC) is exempt from RCRA permitting under the exemption
set out in CERCLA Section 121(e).  The NGB contends that because MMR is an
NPL site, the use of the CDC is an action conducted pursuant to its removal
authority under Section 104 of CERCLA.   Attachment 6 to the NGB's letter
of January 22, 2001 states that "a time critical removal action occurs when
munitions not safe to move are blown in place and when munitions deemed
safe to move are moved to the DDESB-approved storage facility.  Destruction
of the stored munitions in the CDC is a continuation of the removal
action."

On its face, the CERCLA §121(e) permitting exemption only applies to
response actions selected and carried out in compliance with CERCLA.  EPA
agrees with the NGB that, under Section 121(e) of CERCLA, no permits are
required when a removal and remedial action taken pursuant to CERCLA is
conducted entirely on-site.Of course, the NGB must in any event comply with
the substantive requirements of RCRA (in the case of a removal action, the
NGB must comply to the extent practicable) or obtain a waiver pursuant to
CERCLA § 121(d)(4).     However, as noted below, whether or not a RCRA
permit is needed in these circumstances is not relevant to whether an
imminent hazard may be posed by improper storage and disposal of waste
munitions at MMR, or whether a RCRA § 7003 Order is appropriate.

In this case, it is undisputed that the environmental investigations and
response actions conducted to date at the Camp Edwards portion of MMR have
been undertaken by the NGB in response to EPA's Safe Drinking Water Act
orders.  The NGB contends that it is also acting under the authority of
CERCLA.   However, the NGB has not complied with either the procedural or
substantive requirements of CERCLA §121 for the use of the controlled
detonation chamber.  The NGB has not conducted the analysis required under
CERCLA for a removal action: at the March 16, 2001 conference, it was
conceded that the NGB had not issued an action memorandum needed for a
time-critical removal under the NCP, and had not done an EE/CA analysis,
which is needed for a non-time critical removal action.

Nonetheless, even if the NGB had complied with CERCLA, the availability of
the CERCLA 121(e) permit exemption is not dispositive here.   The fact that
the NGB could have acted pursuant to CERCLA does not in any way limit EPA's
authority to act under the imminent and substantial authority of RCRA.
EPA may invoke RCRA § 7003 authority to address an imminent and substantial
endangerment even if CERCLA actions are underway.  Based on the facts and
in light of all relevant considerations, the use of a RCRA § 7003 Order in
this instance is appropriate.




C.    Whether EPA's determination that the CERCLA 121(e) permitting
exemption does not preclude issuance of the RCRA 7003 order will have
serious nationwide impacts for DoD.

The NGB states that the "failure to recognize the CERCLA exemption could
have DoD-wide impacts, and if the rationale is applied equally to other
agencies, then serious nationwide impacts."

EPA disagrees with the NGB as to the scope of the impact of this order.  As
is well documented in the order, the order is premised on the particular
facts at MMR:  a sole source aquifer which has already been significantly
compromised by contamination from MMR;  a projected drinking water shortage
in 20 years;  highly permeable sandy soils; and evidence that contamination
associated with open detonation has already contaminated groundwater above
health-based levels.  Under these circumstances, EPA clearly has the
discretion to use appropriate authority, such as Section 7003 of RCRA, to
abate the release or threat of release of solid wastes that may present an
endangerment to health and the environment.

The issuance of the Section 7003 order with respect to the controlled
detonation chamber at MMR should not affect the ability of the NGB or other
lead federal agencies to take CERCLA response actions as authorized under
Section 120 of CERCLA.  As stated above, EPA agrees that  when the NGB or
other authorized federal agency undertakes a remedial or removal action
under CERCLA, a permit is not required for the portion of the action
conducted on-site.  In addition, if a federal agency carries out a response
action under CERCLA, the benefits of CERCLA 113(h) would be available to it
and would limit the timing of review of challenges to such a response
action.


                           Attachment 2

Summary of  Public Comments/State Concurrence on EPA's Order

On January 25, 2001, after notice to the public through local newspapers on
January 22, 2000, EPA held a public hearing on the Order.  Approximately 75
people attended the hearing.  Oral comment on the Order was accepted at the
meeting and written comments were invited by EPA.  The comment period was
extended once, and closed on February 18, 2001.

In all, 14 commenters Four of these comments were received after the close
of the public comment period.    supported the order and 5 commenters
opposed or questioned it.  A copy of the transcript of the hearing and the
written comments is attached.   The supporters stated that open detonation
is environmentally harmful, that the controlled detonation chamber is a
good technology, and that the National Guard Bureau should be cleaning the
environment and not spending its energies fighting EPA.  Commenters who
opposed the order generally believed that the Order is an inappropriate
intrusion into the military's activities, that it could be risky to move
munitions, that the chamber is too expensive, and that the time for comment
was too short.   (In response to this last comment, EPA extended the public
comment period.)

The Massachusetts Department of Environmental Protection and the Attorney
General of the Commonwealth of Massachusetts submitted letters in support
of the approach being taken by EPA.  Specifically, the Commonwealth agreed
that the past, present and future handling of UXO and buried munitions may
present an imminent and substantial endangerment, and that the use of the
chamber is an appropriate technology.


















                          Attachment 3


1.    The following clarifications and modifications are hereby made to
Administrative Order No. RCRA 1-2001-0014 (the "Order"):

      (i) the Order does not apply to the storage and disposal of  wholly
inert military munitions, other than to prohibit open detonation of such
munitions; and
      (ii) the National Guard Bureau may propose alternative, equally
protective, disposal or treatment technologies for RCRA-regulated munitions
for EPA review and approval.

2.   Certain technical modifications proposed by the National Guard Bureau
during the conference on March 16, 2001 are hereby made, as detailed in the
attached modified Order, specifically to paragraphs 29, 30, 32, 35
(subparagraph vi), 36 and 75.
--
Joel Feigenbaum
24 Pond View Drive
E. Sandwich MA 02537
(508)-833-0144


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