[CPEO-MEF] The Inhofe Amendment: Still Unacceptable

[Lenny Siegel <lsiegel@cpeo.org>]

The Defense Department failed to convince either the Senate or House
Armed Services Committee that it was necessary to rewrite the nation's
hazardous waste laws to protect military readiness activities. However,
the Department, working with Senator James Inhofe (R-Oklahoma), has
proposed a last-ditch amendment, to the Senate Defense Authorization
Bill, reviving its proposals. (I am assuming, from the actual language,
that Defense Department attorneys crafted the Inhofe proposal.)

Throughout the debate over the Readiness and Range Preservation
Initiative (RRPI), Defense Department lawyers have insisted that their
intent has been only to exempt activities on operational ranges.
Attorneys for regulatory agencies, on the other hand, have provided
analysis arguing that the exemption is much more expansive. If somehow
the legislation is enacted, I anticipate their roles to be reversed. The
Defense Department will argue that the exemptions are broad; regulators
will try to narrow them.

I'm not a lawyer, and I find the language extremely convoluted, but I
feel compelled to make a political judgment. Given the military's long
history of rejecting regulator authority over munitions ranges, it is
prudent, for now, to accept the regulators' analysis - to assume the worst.

For a dozen years, the Department of Defense has tried to exempt
munitions and explosive constituents from regulatory authority. It has
agreed to work with state, federal, and tribal regulators, as long as
the military retains final say - on former ranges as well as active
ranges - over cleanup decisions. This is what the proposed Range Rule
was all about. If disputes arise, the military wants the power to
determine whether and how to remediate munitions and explosive
constituents. 

This is not just a theoretical problem. It is an issue of public safety
and health. In the current, ongoing confusion over those authorities,
the Defense Department has repeatedly attempted to get away with less
than satisfactory efforts to investigate and remediate munitions sites.

Even if one accepts the military lawyers' assertion that their intent,
in RRPI, is only to exempt operational ranges, it remains obvious that
the Department doesn't want any legislative language to undermine their
long-standing argument that unexploded ordnance shouldn't be subject to
regulatory authority at closed, transferring, and transferred ranges. To
me, this explains the succession of convoluted proposals that the
Department keeps putting forward. That is, they want to CLEARLY exempt
operational ranges while keeping AMBIGUOUS the legal status of former ranges.

In conclusion, I'd like to review the arguments why the Inhofe
Amendment, like earlier Defense Department proposals, is unacceptable.

* The hazardous waste laws (RCRA and CERCLA) have never interfered with
military readiness, and they are unlikely to.

* Munitions and explosive constituents (including perchlorate) on
operational ranges, including "inactive" ranges that the Defense
Department has failed to declare "closed," pose a threat to public
health, public safety, and the environment.

* The proposed amendment would exempt from regulatory authority the
military's response to munitions contamination at covered facilities. In
fact, the military could continue to refuse even to test its ranges for
perchlorate and other mobile explosive constituents.

* If regulator attorneys are correct, munitions and explosive
constituents almost anywhere would be exempted from the hazardous waste
laws. This would make it difficult, if not impossible, for environmental
agencies to ensure that the public is protected from unexploded ordnance
and toxic explosive chemicals.

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope 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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