[CPEO-MEF] DERP Guidance on Munitions Response

[Lenny Siegel <lsiegel@cpeo.org>]

The Management Guidance for the Defense Environmental Restoration
Program (September, 2001), available at 
http://www.dtic.mil/envirodod/DERP_MGT_GUIDANCE_0901.pdf, 
contains a number of new provisions dealing with "Military Munitions
Response." The cover memorandum, signed by Deputy Undersecretary of
Defense (Installations and Environment) Raymond F. Dubois, Jr., explains:

"The first major change establishes detailed requirement for response
action to address military munitions (i.e., unexploded ordnance [UXO}
and waste military munitions [WMM]) and the chemical residues of
munitions at locations that are not operational ranges. In this
important and emerging program area, the Guidance:

"* Establishes a requirement to identify through an inventory, to be
completed by September 30, 2002, all locations other than operational
ranges that require a military munitions response.

"* Defines how to use the new Program Element (PE) established for
military munitions response.

"* Defines the data elements necessary to develop credible cost
estimates and support the military munitions response program.

"* Establishes the requirement to identify, characterize, and track and
provide data on military munitions and military munitions responses in a
manner that is compatible with the Installation Restoration program and,
which supports inclusion in the Restoration Management Information
System database."

Not surprisingly, the Defense Department's lawyers structured the
definitions to support the argument, put forward in the Range Rule
promulgation process, that the Department has the authority to regulate
the cleanup of ordnance on former ranges. While this may raise the
hackles of regulators and other who have challenged that contention,
this internal Defense guidance is not a place where one would expect
that issue to be resolved.

The Guidance mentions the new program element code (0708003A) for funds
supporting "activities under the Military Munitions Response program
category." This program element appears to overlay the environmental
restoration accounts of the armed services, the Base Realignment and
Closure (BRAC) cleanup accounts, and the Formerly Used Defense Sites
(FUDS) program.

Section 13.3 of the Guidance is titled "Requirements for identification
of sites requiring activities under the Military Munitions Response
program category." It reads:

"13.3.1. Components shall, by September 30, 2001, develop a list of, and
preliminary information on, all known or newly identified sites where
activities under the Military Munitions Response program are required.
Components shall submit that list of ODUSD(I&E) [Office of the Deputy
Undersecretary of Defense (Installations and Environment)] by October
15, 2001. Specific data will be required for each site. Following
submittal, the list of sites will be made publicly available. The March
18, 1998 DEPSECDEF [Deputy Secretary of Defense] memorandum, Funding for
DoD [Department of Defense] Range Rule Requirements, directed the
Components to program and budget for responses to address military
munitions (i.e., UXO or WMM) or the chemical residues from military
munitions in the appropriate environmental restoration accounts.
Components are expected to add funds to their environmental restoration
programs and budgets, in the year a requirement for a response at a site
is identified, so as not to impact existing DPG [Defense Planning
Guidance] goals."

This last sentence appears to suggest that money programmed for the
cleanup of toxic or radioactive wastes shouldn't be diverted to address
new or increased Military Munitions Response requirements.

The Guidance continues:

"13.3.1.1. In prioritizing which sites shall be the subject of data
collection, the Components are directed to undertake data collection at
the following sites first:

"13.3.1.1.1. Sites over known or potential drinking water supplies,
especially sole source aquifers.

"13.3.1.1.2. Sites where there have been reports of public exposure to
military munitions (i.e., UXO or WMM) or the chemical residues from
military munitions.

"13.3.1.1.3. Sites where stakeholders are expressing a high degree of concern.

"13.3.1.1.4. Sites subject to enforceable orders or agreements."

"13.3.2. Components shall, by September 20, 2002, develop an updated
list of, and detailed data concerning, all known and newly identified
sites where activities under the Military Munitions Response program
category are required. Components shall submit this list and data to
ODUSD(I&E) by October 15, 2002. Specific data will be required for each
site. Following submittal, the list of sites will be made publicly available."

Section 15.5, which instructs the development of Cost-to-Complete
estimates, appears to treat Military Munitions Response projects like
other activities, but it contains one munitions-specific footnote:

"In interim planning of, and in developing interim cost-to-complete
estimates for, responses to address military munitions (i.e., UXO or
WMM), use of the assessment depths in the table in Chapter 12 of DoD
6055.9-STD is acceptable until such time as site-specific data becomes
available. Under no circumstances is this table to be used for any other
purpose (e.g., selection of response actions). This section of DoD
6055.9-STD us currently under revision by the Department of Defense
Explosives Safety Board (DDESB)."

I believe this refers to the familiar 1 foot-4 foot-10 foot
investigation depths historically associated with different future land
use categories.

The Guidance establishes an interim risk assessment and prioritization
scheme for munitions response, based on the Risk Assessment Code
framework already in use by the Army Corps of Engineers:

"16.4. Risk Assessment procedures for military munitions (i.e., UXO or WMM).

"16.4.1. The Risk Assessment Code (RAC) framework described in Appendix
16 is being adopted as an interim DoD-wide approach for providing a
single, consistent tool for preliminary evaluation of explosives hazards
posed by military munitions (i.e., UXO or WMM). It has been adopted as
an interim approach because of its longstanding use in the FUDS program.

"16.4.2. The RAC is composed of two factors, hazard severity and hazard
probability. Evaluation of hazard severity and hazard probability is
based on the best information available concerning potential hazards
related to military munitions (i.e., UXO or WMM) at the site. Following
evaluation, sites will be assigned a RAC score that will be used, along
with 'other management factors,' for prioritizing sites and sequencing responses...."

This follows the "Risk Plus" approach developed in the mid-90s, through
negotiation with other stakeholders, at the Federal Facilities
Environmental Restoration Dialogue Committee.

"...Components shall use the RAC framework to evaluate the explosive
safety risk posed at each site where a response action to address
military munitions (i.e., UXO or WMM), is required, irrespective of
whether the site is in the Installation Restoration or Military
Munitions Response program categories. Components shall ensure that
regulators and public stakeholders are offered opportunities to
participate in the RAC process.

"16.4.3. Each site where a response to address military munitions (i.e.,
UXO or WMM) is required (including sites where a response has already
been implemented) shall be assigned a RAC as soon as possible, but not
later than September 30, 2003. Sites lacking information for assessing a
RAC shall be programmed for additional study and shall be evaluated as
soon as sufficient data are available. Until the RAC is assigned, sites
will be classified as 'not yet evaluated.' Sites newly identified after
September 30, 2002 shall be evaluated and a RAC assigned within 12
months of identification. When assigned, the RAC will be included in the
record for each site in the inventory. RACs shall be reviewed at least
annually and updated as necessary to reflect new information that has
become available. A RAC reevaluation is necessary under the following circumstances:

"16.4.3.1. Upon completion of a response action that could change the
hazard probability.

"16.4.3.2. To update or validate a previous RAC at a site based on new
or confirmed data.

"16.4.3.3. To categorize sites previously classified as 'not yet evaluated.'"

Overall, the Defense Department's designation of Munitions Response, as
an identifiable program, is a significant step forward. In general, the
specifics in the guidance appear similar to legislation now under
consideration on Capitol Hill. However, since nuanced definitions and
what appear to be simple requirements sometimes have broad legal
implications well beyond their apparent intent, lawyers for all parties
will have compare the Guidance language against current versions of the
Defense Authorization Act. 


Lenny
-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
lsiegel@cpeo.org
http://www.cpeo.org

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