[CPEO-MEF] New DOD Perchlorate Sampling Policy

[Lenny Siegel <lsiegel@cpeo.org>]

On September 29, 2003 the Defense Department issued a new, "Interim
Policy on Perchlorate Sampling." Signed by Principal Assistant Deputy
Under Secretary of Defense (Installations and Environment) Philip W.
Grone, the new document supersedes the November 13, 2002 "Perchlorate
Assessment Policy."

The Policy is a small step in the right direction, because in many cases
it provides installations that want to conduct perchlorate sampling with
clear authority to do so. However, it is significantly weaker than an
internal Defense Department draft that we at CPEO circulated in June,
and it appears designed to be compatible with the Department's proposed
Readiness and Range Preservation Initiative language, rather than
existing laws and regulations.

The policy states, "Given recent public concerns over possible risks
associated with perchlorate, the Department believes it is appropriate
to take additional measures to assess the extent of perchlorate
occurrence at active and closed installations, ranges, and Formerly Used
Defense Sites (FUDS). Toward that end, DoD Components shall continue to
consolidate existing perchlorate occurrence data, and shall sample any
previously unexamined sites where a perchlorate release is suspected AND
[emphasis added] where a complete human exposure pathway is likely to exist."

On the positive side, the policy recognizes that the Department is
obligated to test water systems under the Safe Drinking Water Act and
may be required by the states to sample discharge points under the Clean
Water Act. Unlike the June, 2003 draft, the Interim Policy designates
such testing as Class I (fund now) compliance funding requirements.
These requirements, however, are "not applicable at FUDS."

Furthermore, the policy provides clear but general guidance for
"determining the likelihood" of perchlorate releases for the purposes of
Environmental Restoration:

"DoD Components should consider the volume of perchlorate used, or
disposed, and/or the intensity of perchlorate related activities at the
site. Activities that could potentially contribute to perchlorate
occurrence include, but are not limited to:

"a. The manufacture/maintenance of missiles, rockets and/or munitions
containing perchlorate;
b. The use of perchlorate-containing munitions for training or testing purposes;
c. The demilitarization of perchlorate-containing munitions using
techniques, such as 'hog-out' of rockets and missiles containing solid
propellant; and
d. Open burning/open detonation operations."

This guidance should prove valuable, enabling pro-active searches for
perchlorate releases, if linked to DoD's recent internally circulated
spreadsheets documenting the perchlorate composition of a long list of
military munitions. However, the policy as signed does not include the
language, in the June draft, directing record searches "for past and
current perchlorate use" at active and former installations.

Next, the policy sets a high bar for sampling in considering the
presence of a COMPLETE human exposure pathway. It states:

"In assessing potential pathways of exposure, DoD Components should
consider whether there are:

"a. Drinking water sources likely to be impacted by ground water or
surface water on or leaving the active or closed installation,
non-operational range, or FUDS; and/or
b. Drinking water systems on or near the active or closed installation,
non-operational range, or FUDS that are listed on EPA's UCMR
[Unregulated Contaminant Monitoring Rule] database."

This is troubling. Unless an installation believes that drinking water
systems are likely to be impacted, now, sampling is apparently not
authorized. Though sites likely to have complete exposure pathways are
obviously a high priority, typical characterization at toxic sites seeks
to discover the nature and extent of contamination long before people
start drinking contaminated water. That is, most remedial investigations
targeting hazardous substances - even those conducted by the Department
of Defense - do not presume complete human exposure pathways. One must
know where perchlorate is, and how it's moving, to design strategies to
prevent its spread. 

At least three other positive elements of the June draft are missing
from the signed, November version:

First, the June version called for perchlorate sampling at existing
monitoring wells downgradient from both active and closed ranges. This
appeared to be a sensible, cost-effective way to test for perchlorate,
but it has been dropped.

Second, it directed installations to report up the chain of command any
detections of perchlorate above 1 part per billion, the imputed but not
promulgated standard from EPA's health studies, which are under review
by the National Academy of Sciences. Apparently the Defense Department
doesn't want to reinforce EPA's health findings in any way, so that
requirement has also been deleted.

Third, the June draft stated that any perchlorate sampling plan should
include "decision criteria for potential further action to be taken
based on the analytical results." The Defense Department still
acknowledges the external pressure to conduct sampling, but in deleting
that language it sticks to its guns in resisting actual cleanup in the
absence of a promulgated standard. While there are sites where one might
expect DoD to contest cleanup orders because concentrations are low,
possibly below the final promulgated standards, this stance represents
an irresponsible approach to protecting public health, a position that I
believe is inconsistent with state and federal environmental laws. As a
nation, we cannot afford to wait for the completion of the lengthy,
complex standard-setting process for every substance before we authorize
any cleanup activity for "unregulated" contaminants.

In addition, the new Interim Policy addresses operational ranges (active
and "inactive") by requiring "the Military Departments to include
perchlorate in future range assessments." Specifically, it requires such
assessment to the potential for off-range migration. There are two
significant problems with this language:

1) It fails even to consider potential environmental problems from
perchlorate plumes not determined likely to migrate off range.

2) This assessment would take place only as a range management activity. _From the Policy, sampling would take place entirely outside the
framework of the environmental restoration programs. Not only does this
seem to place the assessment outside of those elements of the Defense
bureaucracy that have the technical capability to investigate toxic
releases, but it implies that environmental regulators have no role to
play in the investigation of perchlorate contamination originating on
operational ranges.

This appears to conflict with existing statute and regulations. The
Military Munitions Rule makes it clear that environmental regulators
have jurisdiction over toxic releases on ranges. The Pentagon, in its
Readiness and Range Preservation Initiative language, proposed that
munitions constituents be exempt from regulation under the hazardous
waste laws - at operational ranges at least, and possibly elsewhere.
Congress thus far has turned down such language. Furthermore, some of my
friends in the Defense Department took umbrage when I suggested that the
language was "all about perchlorate." In this policy, however, Defense
Department lawyers have established internal policy consistent with that
un-legislated proposal, not with current law.

Finally, the Policy reinforces regulators' and public fears that the
Defense Department hopes to exempt munitions constituents such as
perchlorate from regulation under environmental laws even at facilities
other than operational ranges. There is no mention, in the section on
Environmental Restoration, in the first paragraph that mentions
applicable legal authorities, OR anywhere else in the document, of the
Superfund law (Comprehensive Environmental Response, Compensation, and
Liability Act, or CERCLA), the Resource Conservation and Recovery Act
(RCRA), or state hazardous waste laws.

Frankly, I was surprised by the overall weakness of this policy. I
didn't expect the Defense Department to authorize widespread cleanup of
perchlorate contamination. I didn't expect it to implement the
pro-active national sampling program that I have suggested. But I did
expect it to call for the Defense components to cooperate closely with
environmental regulatory agencies in addressing this massive, emerging
problem. I know that there are people within the U.S. military who
believe this the wise, foresighted approach, but apparently they failed
to convince their colleagues, who are continuing their efforts to carve
out a special territory of unregulated environmental activity.

Lenny
-- 


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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