[CPEO-MEF] anonymous comments on DoD-EPA negotiations

[Lenny Siegel <lsiegel@cpeo.org>]

Below is the text of an anonymous e-mail that asserts EPA is negotiating
a legislative package with Department of Defense (DoD) that would
pre-empt the states from regulating munitions under the Resource
Conservation and Recovery Act (RCRA). The analysis and opinions are
those of the anonymous source, not CPEO.


***

Sources close to the top-level, political appointee discussions now
going on between EPA and DoD on the proposed exemption legislation tell
me that EPA is being urged to approve DoD being exempt from RCRA in
exchange for DoD dropping the exemption requests for the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) and
Safe Drinking Water Act.

That is, EPA is being asked to free DoD from State and citizen suit
liability under RCRA and manage ranges under a new "paradigm" -- EPA
would retain jurisdiction under CERCLA and Safe Drinking Water Act, and
states and citizens would have no recourse whatever vis a vis military ranges.

Thus, EPA is being urged to accept essentially the same deal the Agency
accepted in 1996 when it agreed to sunset RCRA through an interpretive
rule and defer to a DoD Range Rule. That deal fell apart because 
1. the DC Circuit decision on the Munitions Rule made such an
interpretive rule impossible to defend, and 
2. the proposed DoD Range Rule was inconsistent with CERCLA.

So the question is, what incentive does EPA have to stand up to DoD on
behalf of the states and individual citizens?

The discussions are being headed up at EPA by EPA General Counsel Bob Fabricant.

Some in EPA believe the Agency should talk about "codifying" the
munitions rule before it does any negotiations with DoD / Office of
Management and Budget. Such issues remain outstanding as the petroleum
exclusion, the fact that CERCLA also does not deal with storage, etc. as
well as the ENORMOUS problem of the preemption of state authority. The
paradigm that we can manage ranges under CERCLA and the SDWA makes some
EPA career staff "very uneasy."  I'd go further and say it is a sell
out.