[CPEO-MEF] New range exemption language

[Lenny Siegel <lsiegel@cpeo.org>]

Although neither the approved House nor Senate version of the Defense
Authorization bill contains any elements of the Defense Department's
proposal to limit the regulatory oversight of munitions and explosive
constituents, the Defense Department is once again proposing language to
be acted upon this year. I have pasted the latest version below.

The new language appears designed to respond to the criticism that the
original language would have created blanket exemptions for munitions
and constituents virtually everywhere: at non-range facilities, former
bases, and contractor properties. I leave it to legal experts such as
state Attorneys General offices to evaluate whether the wording matches
the Defense Department's stated goal of only applying the exemption to
operational ranges. 

As I read it, the Defense Department still remains unwilling to
acknowledge clear regulatory authority at closed, transferred, and
transferring ranges. At best, this proposal leaves that authority
subject to dispute between regulators and the military.

Even if the new version limits the scope, it leaves us with the
fundamental problems that I identified in my Congressional testimony
earlier this year: Regulators still wouldn't be able to require the
characterization or cleanup of explosive constituents, such as
perchlorate, until they migrate off active or inactive ranges. As this
is worded, even if they do migrate,  it's arguable that regulators would
only have jurisdiction over the contaminants that have traveled beyond
the ranges and their buffer zones.

It would also restrict regulatory authority to oversee open burning/open
detonation areas on operational ranges, and it would prevent regulators
from requiring engineering controls (fences, etc.) to prevent public
access to dangerous range areas.

Finally, the proposal would exempt inactive ranges, as defined by the
installation, even though there is evidence that large former ranges
areas on active installations remain in this category, either because
the Defense Department hasn't evaluated them sufficiently or because it
is reluctant to subject them to regulatory authority. (EPA's Military
Munitions Rule already limits regulatory authority over munitions on
inactive and active ranges, but it does nothing to constrain regulatory
oversight of explosive constituent contamination.)

That is, even if the new language were to limit the hazardous waste law
exemption only to those areas that the Defense Department has always
said it intended to exempt - operational ranges - it would still create
an oversight gap over the chemical constituents and byproducts of
munitions. Since perchlorate, RDX, heavy metals, and other munitions
constituents are likely to be found in range areas, this gap could
create significant threats to the integrity of water supplies and would
undermine the protection of public health and the environment.

Lenny Siegel

***

Section 2019.  Range management.

(a)  DEFINITION OF SOLID WASTE. - 

  (1) The term 'solid waste' as used in the Solid Waste Disposal Act, as
amended (42 U.S.C. 6901 et seq.), does not include military munitions,
including unexploded ordnance, and the constituents thereof, that are or
have been deposited, incident to their normal and expected use, on an
operational range, and remain thereon, unless such military munitions,
including unexploded ordnance, or the constituents thereof):

    (A) are recovered, collected, and then disposed of by burial or land
filling; or

    (B) have migrated off an operational range and are not addressed
through a response action under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9601 et seq.).

  (2) The military munitions, including unexploded ordnance, or
constituents thereof that become a solid waste under subparagraph
(a)(1)(A) or (B) shall be subject to the provisions of the Solid Waste
Disposal Act, as amended, (42 U.S.C. 6901 et seq.), including but not
limited to sections 7002 and 7003, where applicable.

  (3) Nothing in this section affects the authority of federal, state,
interstate, or local regulatory authorities to determine when military
munitions, including unexploded ordnance, or the constituents thereof,
become hazardous waste for purposes of the Solid Waste Disposal Act, as
amended (42 U.S.C. 6901 et seq.), except for military munitions,
including unexploded ordnance, or the constituents thereof, that are
excluded from the definition of solid waste by this subsection. 

(b)  DEFINITION OF RELEASE. -

  (1)  The term 'release' as used in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9601 et seq.), does not include the deposit or presence on an
operational range of any military munitions, including unexploded
ordnance, and the constituents thereof, that are or have been deposited
thereon incident to their normal and expected use, and remain thereon. 
The term 'release' does include the deposit off an operational range, or
the migration off an operational range, of military munitions, including
unexploded ordnance, or the constituents thereof).

  (2) Notwithstanding the provisions of subparagraph (1), the authority
of the President under section 106(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9606(a)), to take action because there may be an imminent and
substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous
substance includes the authority to take action because of the deposit
or presence on an operational range of any military munitions, including
unexploded ordnance, or the constituents thereof that are or have been
deposited thereon incident to their normal and expected use and remain thereon.

(c)  DEFINITION OF CONSTITUENTS.-For purposes of this section, the term
'constituents' means any materials originating from military munitions,
including unexploded ordnance, explosive and non-explosive materials,
and emission, degradation, or breakdown products of such munitions.

(d)  CHANGE IN RANGE STATUS.-Nothing in this section affects the legal
requirements applicable to military munitions, including unexploded
ordnance, and the constituents thereof, that have been deposited on an
operational range, once the range ceases to be an operational range.

(e) Nothing in this section affects the authority of the Department to
protect the environment, safety, and health on operational ranges.



-- 


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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