Attorneys General analyze RRPI

[Lenny Siegel <lsiegel@cpeo.org>]

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[Note: We are working to make available a formatted version of this
document. - LS]

Response to the Department of Defense's position paper titled
"Readiness and Range Preservation Initiative (RRPI): Myth and Fact."

Prepared by the staff of the Attorneys General of
Colorado, Idaho, Utah and Washington
April 2004

	In support of its proposed legislative initiative known as the
"Readiness and Range Preservation Initiative,"  the Department of
Defense has prepared a paper titled "Readiness and Range Preservation
Initiative (RRPI): Myth and Fact."  DOD distributed this fact sheet at
the summer 2003 meeting of the Conference of Western Attorneys General,
among other places.  Staff from the Attorneys General of Colorado,
Idaho, Utah and Washington have prepared this response to the points
raised in the DOD paper.  DOD's statements are reprinted below in
italics, followed by our response to each statement.

In reading this response, it is important to remember that many of the
"myths" DOD describes are arguments that Attorneys General and others
have raised regarding the 2002 and 2003 versions of DOD's proposed RRPI.
 The 2002 and 2003 versions were extremely broad, and would likely have
preempted or otherwise impaired state and EPA authority over a wide
range of sites with munitions-related contamination.  Affected sites
included both "operational" ranges and ranges that had been closed and
transferred to other federal agencies or to private owners.   DOD's 2004
version of the RRPI is somewhat narrower than the 2002 and 2003 versions
in some respects.  But even the narrowest reading of the 2004 RRPI would
still likely result in preempting or impairing state and EPA authority
to protect human health and the environment at over 24 million acres of
operational ranges.  And the 2004 RRPI may well be read more broadly to
encompass additional sites, including closed and transferred ranges.

1.	Myth: There is no evidence that environmental encroachment has
affected military readiness. Even the non-partisan GAO found that
readiness has not been impacted by environmental encroachment.

Fact: There is a significant body of evidence that readiness is being
adversely impacted.
* GAO raised a concern regarding DoD's ability to quantify readiness
impacts, but its report explicitly states that encroachment is having
demonstrable adverse effects on readiness.
* DoD is actively working to develop a mechanism to quantify training
constraints caused by limitations on use of land, air, and sea
resources.

Response: The Attorneys General have emphasized that there is no
evidence that RCRA, CERCLA or the Clean Air Act have adversely impacted
military readiness.  As of this writing, DOD has still not identified a
single example where any of these laws has actually caused an adverse
impact on military readiness.  On March 7, 2003, Deputy Secretary of
Defense Wolfowitz issued a memorandum to the military service
Secretaries regarding DOD compliance with ten different environmental
and natural resource laws.  He stated "[i]n the vast majority of cases,
we have demonstrated that we are able both to comply with environmental
requirements and to conduct necessary military training and testing." 
In light of this, the Deputy Secretary directed the Secretaries to give
greater consideration to using the existing exemption processes in these
environmental and natural resource laws in the "exceptional cases" that
may present conflicts.  To date, no exemptions have been invoked under
RCRA, CERCLA, or the Clean Air Act.   And at a meeting in December
between DOD representatives and staff from several western states'
Attorneys General office and environmental agencies, the DOD
representatives acknowledged that there have not been any instances in
which the Clean Air Act, RCRA or CERCLA have impacted military readiness.

DOD's statement above does not respond to the AG's criticism.  Instead
of addressing RCRA, CERCLA and the Clean Air Act, DOD refers to
"environmental encroachment," a term that encompasses far more than
regulatory or remedial requirements under these three laws.   As
described in the GAO report to which DOD refers, "environmental
encroachment" includes:

* Urban growth around military installations;
* Competition for radio frequency spectrum;
* Air pollution;
* Noise pollution;
* Competition for airspace;
* Unexploded ordnance and munitions components;
* Endangered species habitat; and
* Protected marine resources.

The GAO report does state that "Encroachment was reported as having
affected some training range capabilities," but goes on to state "Most
encroachment issues are caused by population growth and urban
development."1  The GAO cites several specific examples where sprawl,
and the resulting land use conflicts between residential use and
military training, caused DOD to alter or suspend training activities.2
It does not cite any instances in which RCRA, CERCLA or the Clean Air
Act have impacted military readiness, or were reported to have done so.
Nor has DOD cited any such instances.  The GAO report demonstrates the
speculative nature of DOD's concern with RCRA and CERCLA:

DOD believes that the Environmental Protection Agency could apply
environmental statutes to the use of military munitions, shutting down
or disrupting military training.  According to DOD officials,
uncertainties about future application and enforcement of these statutes
limit their ability to plan program, and budget for compliance requirements.3
Given the widespread contamination from military activities, and the
responsible track record states have developed over the past two decades
of regulating the environmental aspects of military activities, we do
not think that "uncertainties about future application and enforcement"
of these environmental laws justifies preempting state and EPA authority
over the cleanup of munitions-related contamination at potentially
thousands of sites around the country.  States have worked with DOD to
better protect our military bases from unplanned urban sprawl.4
However, amending RCRA, CERCLA or the Clean Air Act will do nothing to
solve the readiness issues caused by sprawl.

2.	Myth: The RRPI provides broad exemptions from environmental laws for
DoD activities.

Fact: The initiative would apply only to military readiness
activities--DoD  is, and will remain, subject to precisely the same
regulatory requirements as the private sector when we perform the same
types of activities as the private sector.
* RRPI does not apply to closed ranges or ranges that close in the future.
* RRPI is not applicable to the Defense Department activities that have
traditionally been of greatest concern to state and federal regulators,
such as the routine operation of installation operating support
functions, such as administrative offices, military exchanges,
commissaries, water treatment facilities, storage, schools, housing,
motor pools, industrial activities, or the construction or demolition of
such facilities.
* It does address only uniquely military activities-what DoD does that
is unlike any other governmental or private activity.
* It does seek alternative forms of regulation only for the things we do
that have no private-sector analogue: military readiness activities.

Response:  Regarding the last two bulleted points, we do not agree that
activities should be exempt from environmental regulation simply because
they are unique to the federal government.  "Uniquely military
activities" have caused vast amounts of environmental contamination in
this country.  Current estimates are that it will cost well over $340
billion to address the environmental legacy of "uniquely military
activities" at DOD and Department of Energy sites.   In many cases,
"addressing" this legacy does not mean cleanup of contaminated land or
groundwater, but permanently restricting the use of such land or
groundwater to one degree or another.  DOD, the Department of Energy,
and other federal agencies have fought the application of state
environmental laws for years.  However, as states that have seen the
consequences of exempting "uniquely military activities" from
environmental regulation, we can attest that it is a failed policy that
should not be revisited.

DOD's first bulleted point responds to criticisms that the Attorneys
General and others leveled at the 2002 and 2003 versions of RRPI.  We
have previously analyzed DOD's 2002 and 2003 legislative proposals to
show that they do impair state and EPA authority over closed ranges.5 A
preliminary analysis of DOD's 2004 RRPI indicates that it likely does
not exclude munitions on closed ranges from RCRA's definition of solid
waste.  Thus, the 2004 RRPI likely does not preempt state or EPA RCRA
authorities at closed ranges.  However, the 2004 RRPI definition of
"release" under CERCLA likely impairs state and EPA authorities under
CERCLA and related state laws to address contamination at closed and
transferred ranges.6  And the 2004 RRPI likely precludes a person who
spends his own resources cleaning up munitions-related contamination at
closed ranges from seeking reimbursement of their costs from DOD through
a CERCLA cost recovery action.7

	It is also important to recognize that the term "operational range"
includes ranges that have not been used in years, or even decades.8   In
a 1998 survey EPA noted that many ranges which had not been used in
decades had not been formally closed by DOD, and so were considered
"inactive".9  Because RCRA and CERCLA cleanup actions can be implemented
at active ranges without impacting readiness, there is clearly no
justification for preempting these authorities at ranges that have not
been used in years.

As for its statement that its proposal does not apply to activities that
have traditionally been of greatest concern to state and federal
regulators, we respectfully disagree.  State and federal regulators have
consistently shown great concern for any activity that may contaminate
drinking water sources or that may cause death or dismemberment due to
explosive risks.  Conversely, States do not expend their scarce
resources regulating matters that have no environmental or human health
impacts.  Finally, DOD's proposed amendments to RCRA and CERCLA are not
limited to "military readiness activities," as that term does not appear
in its proposed amendments to those two statutes.

3.	Myth: DoD is backing away from its policy that it should comply with
environmental laws in the same manner and to the same extent as private industry.

Fact: The RRPI initiative is narrowly focused on testing and training,
i.e., on "military readiness activities." For DoD activities that are
not unique, DoD must comply with environmental laws just like private parties.

Response:  See previous answer for a rebuttal to the argument that
"uniquely military activities" should be exempt from environmental
regulation.


4.	Myth: Most environmental laws already provide for national security
exemptions that are sufficient to preserve military readiness activities.

Fact: The existing exemptions in environmental statutes are not
appropriate for governing the conduct of ordinary, scheduled, and
recurring military training and testing activities.
* Congress designed exemptions to require high-level government
officials (e.g., the President, the Secretary of Defense) to decide how
the government will act under extraordinary circumstances.
* Invocation of an exemption is characteristically to be based on "the
paramount interests" of the United States--an exceptionally high
standard which may not be met by individual military readiness
activities that nevertheless are cumulatively essential to maintaining
military readiness.
* Most national security exemptions in current environmental laws
provide relief that is brief in duration and focuses on individual
activities, facilities, or pollution sources--they are ill-suited to
ongoing actions, including many categories of readiness activities that
are part of the day-to-day training regimen for our forces.
* Maintaining military readiness through use of emergency exemptions
would involve issuing and renewing scores or even hundreds of
Presidential certifications annually.

Response: We disagree that the "paramount interest" standard is
"exceptionally high" or that it cannot be met by individual military
readiness activities that are cumulatively essential to maintaining
military readiness.  And at least with respect to RCRA, CERCLA, and the
Clean Air Act, there is no evidence that the exemptions would need to be
invoked frequently.

According to the existing case law,  rather than being "exceptionally
high," the "paramount interest" standard is quite deferential. The
"paramount interest" standard is unique to the exemption provisions of
the environmental laws. The paramount interest provisions have been the
subject of litigation in two instances -- one at the Air Force facility
near Groom Lake, Nevada, and the other at Puerto Rico's Ft. Allen.

In Kasza v. Browner,10 the Ninth Circuit Court of Appeals upheld
President Clinton's decision under RCRA [Section] 6001 to exempt the Air
Force facility near Groom Lake, Nevada from any hazardous waste or solid
waste provisions that would require the disclosure of classified
information to any unauthorized person.  The court stated:

Here, the President found that "it is in the paramount interest of the
United States to exempt the operating location from any applicable
requirement for the disclosure to unauthorized persons of classified
information." . . .  That is what the President determined was in the
paramount interest of the United States, a matter the Congress
explicitly left to the President's discretion, and we have no problem
with the district court's accepting that determination.11
(Emphasis added.)  Similarly, in Colon v. Carter,12 the First Circuit
described the exemptions provided in several environmental laws as follows:

[T]he determination that a President must make prior to issuing an
exemption from the relevant environmental regulations is that the
"paramount interest of the United States" requires the exemption.
[citations omitted]  It is difficult to imagine a determination more
fully committed to discretion or less appropriate to review by a court."13
(Emphasis added.)  Thus, the only appellate decisions to address the
exemption provisions make clear that the determination that a particular
exemption is in the paramount interest of the United States is one that
lies within the President's discretion. The President's discretion would
certainly encompass a determination that it is in the paramount interest
of the United States to exempt a number of individual military
activities from certain environmental requirements because of the
cumulative impact of compliance on readiness.

DOD's last two bulleted points make it sound as though conflicts between
environmental requirements and readiness are commonplace.  This is
certainly not the case for RCRA, CERCLA or the Clean Air Act.  Again,
neither DOD nor GAO has cited any examples where any of these three laws
has caused a conflict with military readiness.

5.	Myth: Title 10 already has an adequate provision allowing DoD to
obtain relief for regulations that impair readiness, so the RRPI isn't necessary.

Fact: 10 USC 2014, allows a delay of at most five days in regulatory
actions significantly affecting military readiness, allowing
insufficient time to resolve disputes of any complexity.
* Section 2014 merely codifies the inherent ability of cabinet members
to consult with each other and appeal to the President regarding agency
regulatory actions.
* The RRPI proposal was not occasioned by the actions of state or
federal regulators. Rather, it seeks clarification or flexibility
regarding the underlying statutes. Four of the five proposed amendments
(RCRA, CERCLA, MMPA, and ESA), like the MBTA amendment Congress passed
last year, were occasioned by Private litigants seeking to overturn
federal regulatory policy and compel federal regulators to impose
crippling restrictions on readiness activities. Section 2014 has no
effect on such litigation. The fifth, the Clean Air Act amendment, was
proposed because DoD and EPA concluded that the Act's "general
conformity" provision unnecessarily restricted the flexibility of DoD,
state, and federal regulators to accommodate military readiness
activities into applicable air pollution control schemes. In such cases,
where the law itself limits regulators' discretion, section 2014 is
useless. Section 2014, therefore, although useful in some circumstances,
would be of no use in addressing the critical readiness issues that the
five RRPI initiatives address.

Response:  We previously cited 10 USC [Section] 2014 as an example of
one of the many existing mechanisms available to DOD to resolve
potential conflicts with environmental requirements, not as a panacea to
all issues it may have.  What is interesting about DOD's statement here
is that it admits that neither states nor the EPA have done anything to
prompt its proposed legislation.  Nonetheless, the primary impact of the
RRPI would be to preempt or impair state and EPA authorities.

DOD's argument that the RCRA and CERCLA amendments are necessary because
private litigants will use the courts to compel federal regulators to
impose "crippling restrictions" on readiness activities does not hold
water.  First, as a practical matter, the only time RCRA or CERCLA
cleanup authorities would be applied to an active military range is if
range activities were causing groundwater contamination that posed an
imminent and substantial endangerment to human health or the
environment.  Later on in its "Myth and Fact" statement, DOD
acknowledges that contamination posing an imminent and substantial
endangerment to human health or the environment is an appropriate
trigger for addressing military munitions-related contamination. 14
Given DOD's record on environmental contamination, we think that outside
oversight of any response to an imminent and substantial endangerment is
vital.  Yet, the 2004 RRPI would preempt most such oversight.

Underlying DOD's concern is the assumption that any response action
addressing military munitions-related contamination would necessarily
impact readiness.  There is no basis for this assumption.  There is a
wide range of alternative approaches to cleaning up environmental
contamination.  DOD has simply not explained how the installation of
monitoring wells or groundwater treatment systems would disrupt its
readiness activities.  There is flexibility in siting the specific
location of monitoring wells and treatment systems, and additional
flexibility in the timing of their installation and sampling or
maintenance. One example of successfully coordinating environmental
cleanup and training activities on an operational range is at Ft.
Carson, Colorado.  There, the Colorado Department of Public Health and
Environment worked with range officials at Ft. Carson to install
groundwater monitoring wells on an active range without impacting any
training activities.  The wells were installed on a day when the range
was not in use, and the State adjusted the normal sampling period to
coincide with range use schedules.

A December 2003 meeting of state and DOD officials highlighted just how
much flexibility there is "on the ground" to address the environmental
impacts of military munitions without impacting readiness.  Ranges are
typically divided into different areas such as impact areas, buffer
zones, and maneuver areas.  DOD allows public access to the maneuver
areas and buffer zones for recreational purposes when such activities do
not conflict with DOD's own use of the range.  If recreational
activities in buffer zones and maneuver zones are compatible with range
operation, it is difficult to see why installing a groundwater
monitoring well or treatment system in such areas would cause any
difficulties.  And if there were cases where wells or treatment systems
had to be placed in an impact area, they could be hardened against the
possibility of being damaged or destroyed by a military munition.

DOD also incorrectly assumes that a cleanup approach at a given site
would set a binding precedent that all other cleanups would have to
follow.15  Remedial responses to environmental contamination are
invariably site-specific. A cleanup approach employed at a given site
may provide a useful example for how to approach cleanup at other sites,
but it does not establish any legal or technical precedent for other
sites.

DOD overstates the relief available under CERCLA's citizen suit
provision.  Citizen suits under CERCLA simply cannot compel DOD to
perform any particular cleanup action.  The CERCLA citizen suit
provision only allows relief for violations of "requirements" that have
become effective under CERCLA, or for failure of the U.S. to perform a
non-discretionary duty under CERCLA.  But CERCLA is a remedial statue,
not a regulatory one.  It creates authorities to require responses to
releases of hazardous substances, but does not dictate any particular
response, nor that any "cleanup" actually occur.  The National
Contingency Plan is the set of regulations that governs how EPA
implements response actions under CERCLA.  It defines a particular
process for investigating a site, evaluating risks, identifying
alternatives, and selecting a specific response action, but it does not
dictate any particular action.  See, e.g., 40 CFR [Section]
300.430(a)(1)(ii), (d), (e)(2) and (e)(9).  See also, Stewman v.
Mid-South Wood Products, 784 F. Supp. 611 (W.D. Ark. 1992) (nothing in
CERCLA requires EPA to take remedial action).   In large measure, the
selection of a remedy under CERCLA is discretionary, and under Executive
Order 12580, that discretion lies largely or wholly with DOD.16  Even
assuming that the relief available under a CERCLA citizen suit includes
a judicial order compelling DOD to select a response action (an
assumption that is questionable), no response action is required unless
there is some clear risk to human health or the environment, and DOD
would be free to decide what the appropriate response should be (DOD
does need EPA concurrence in remedy selection at NPL sites).

DOD similarly overstates the impact of a citizen suit under RCRA.  To
obtain any relief whatsoever under a RCRA citizen suit, plaintiffs must
first demonstrate that there is an imminent and substantial
endangerment.17  DOD acknowledges that an imminent and substantial
endangerment is an appropriate trigger for addressing environmental
consequences of routine testing and training with military munitions,18
so it is not clear why the 2004 RRPI preempts the RCRA citizen suit provision.

DOD has previously cited Center for Biological Diversity v. Pirie, 201
F. Supp. 2d 113 (DDC 2002), for the proposition that citizen suits under
RCRA or CERCLA could force regulators to require cleanup.   But
permitting cases such as Pirie are simply inapposite to the sort of
discretionary agency enforcement at issue in cleanups under RCRA or
CERCLA.  As a general matter, an administrative agency has absolute
discretion in deciding whether (and how) to take enforcement actions.
Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 (1985).  Certainly, the
language of RCRA's and CERCLA's relevant provisions make clear that
Congress intended to leave the choice of whether to require a response
action in a particular case up to EPA.  See RCRA [Section] 3008(h) and
7003 (42 U.S.C. [Section] 6928(h) and 6973), which employ permissive
language ("may") regarding issuance of administrative orders and civil
actions, even where there may be imminent and substantial endangerment;
CERCLA [Section] 104(a) (President is "authorized to act, consistent
with the national contingency plan" when there is a release or threat of
release of a hazardous substance) and 106(a) (President "may" issue
orders or require the Attorney General to seek relief when President
determines that there may be an imminent and substantial endangerment)
(42 USC [Section] 9604(a) and 9606(a)).19  The discretionary language of
RCRA's and CERCLA's cleanup provisions stands in contrast to the
mandatory nature of environmental permitting provisions, and explains
the difference between the two lines of cases.20

6.	Myth: Because the military is such a large landholder, the
consequences of exempting ranges from RCRA and CERCLA protections could
be vast.

Fact: The DoD controls approximately 1/26th (25 of 650 million acres) of
the federal lands in the United States. Of this DoD land, the RCRA and
CERCLA provisions of the RRPI will affect only those portions of DoD
lands that meet the definition of an "operational range." While DoD has
large tracts of land that meet this definition, operational ranges are
still only a subset ofDoD lands, and are the only lands affected by the
RRPI RCRA/CERCLA proposal.

Response: It is misleading to suggest that DOD's proposal will not have
significant consequences because it will "only" apply to somewhat less
than 25 million acres.  Operational ranges actually comprise the
overwhelming part of DOD's lands -- over 24 million acres.21  This is an
area equivalent to the states of Maryland, Massachusetts, New Jersey,
Hawaii, Connecticut and Rhode Island combined.  These ranges, some of
which are hundreds of square miles in extent, can impact human health
both on-range and off-range.  Activities on DOD operational ranges have
already caused shutdown of municipal groundwater supply wells in
Massachusetts and Maryland, and groundwater contamination from range
activities has been detected at other sites.  Nationwide, there are at
least 40 DOD facilities with known perchlorate contamination of
groundwater or surface water.22

Moreover, as noted elsewhere, the definition of "operational range" is
quite broad, and may include DOE and defense contractor facilities with
groundwater contamination problems.23

And DOD's proposed amendments to RCRA and CERCLA may not be limited to
"operational ranges."  DOD's proposed amendment to "release" under
CERCLA may be read to preempt state and EPA CERCLA-type authorities at
the 16 million acres of closed, transferred, and transferring ranges
that DOD estimates are contaminated with UXO.24  And DOD's proposed
redefinition of "solid waste" under RCRA may also be read more broadly
to preempt state and EPA authority over the investigation and cleanup of
contamination caused by munitions or their constituents in a variety of
situations other than the normal use of munitions on an operational
range.25   These situations may include:
* munitions contamination that arose from improper management of
discarded munitions or munitions constituents;
* munitions contamination arising from disposal through discharge,
injection, dumping, spilling or placing of munitions off of an
operational range,26 potentially including:
* groundwater contaminated by waste streams from the manufacture of
munitions or munitions constituents (such as perchlorate, RDX, TNT,
etc.) at hundreds of defense contractor facilities, such as the
Kerr-McGee plant in Henderson, Nevada that is contaminating the entire
downstream stretch of the Colorado River;
* groundwater contamination arising from ammunition washout; and
* UXO and munitions-contaminated groundwater at Department of Energy
facilities such as Los Alamos National Laboratory.

Finally, the broad reading of DOD's proposed re-definition of solid
waste could result in preempting state and EPA regulation under RCRA of
the destruction of the nation's stockpile of chemical weapons such as
nerve gas and mustard agent.27 We understand that there are 8 different
chemical depots in the United States where such munitions are stored
awaiting destruction. At most, if not all of these sites, States play a
critical role in ensuring the safety of the destruction process through
their RCRA permitting authorities.

7.	Myth: The RCRA and CERCLA provisions of the RRPI will exempt
hazardous waste management activities and ongoing cleanups at ranges
from regulation.

Fact: The RRPI RCRA and CERCLA provisions apply only to use of munitions
for their intended purpose and only while that activity takes place on
operational ranges.
* Even on operational ranges, hazardous waste management activities
involving military munitions (such as disposal of munitions by open
burning/open detonation (OB/OD)) will continue to be regulated under the
Federal and State RCRA programs.
* The intent and legal effect of these two provisions are simply to
codify longstanding Federal and State policies and practices concerning
military munitions use on operational ranges-that (l) the normal and
expected use of military munitions on an operational range (e.g.,
testing and training) is not, by itself, a waste management activity or
a "trigger" for cleanup requirements, and (2) the appropriate "triggers"
for DoD to address the environmental consequences of routine testing and
training with military munitions are (a) after a range ceases to be an
operational range; (b) when military munitions or their constituents
migrate or threaten to migrate off-range; or (c) when military munitions
or their constituents create an imminent and substantial endangerment to
the public health or welfare or the environment.

Response: RRPI only applies to munitions used for their intended purpose
and only on operational ranges.  We have already responded to this
contention.  See footnotes 6, 7, 25, and 26 and accompanying text.

Open burning and open detonation.  It is not clear how DOD can assert
that the open burning and open detonation (OB/OD) of munitions on
operational ranges will still be subject to RCRA authority under the
2004 version of the RRPI.  RRPI states that munitions that are
deposited, incident to their normal and intended use, on an operational
range are exempt from the definition of solid waste.  That would likely
exempt them from RCRA regulation, and RCRA regulation is the basis for
regulating OB/OD on ranges.

Codifying existing policy.  We also disagree that DOD's proposal simply
codifies existing federal and state policies regarding military
munitions.  These policies are reflected in EPA's "military munitions
rule," which has been upheld by the D.C. Circuit and adopted by 33
states thus far.  To understand the munitions rule, a brief explanation
of key RCRA provisions is necessary.
	RCRA contains a broad statutory definition of solid waste and hazardous
waste.28  Statutory hazardous wastes are a subset of statutory solid
wastes. RCRA also directs the Environmental Protection Agency to define
a subset of statutory solid and hazardous wastes as regulatory solid and
hazardous wastes.29  Regulatory hazardous wastes are a subset of
regulatory solid wastes.  The key difference between a regulatory and a
statutory hazardous waste is that the regulatory hazardous waste is
subject to both RCRA's cleanup authorities and permitting authorities,
while statutory hazardous wastes are only subject to RCRA's cleanup
authorities, not its permitting requirements.30
In 1992, Congress passed the Federal Facility Compliance Act.31  In that
Act, Congress directed EPA to promulgate regulations defining when
military munitions become regulatory hazardous wastes.32  Because
regulatory hazardous wastes are a subset of statutory solid wastes, this
means that military munitions are statutory solid wastes if they meet
the statutory definition, i.e., if they have been "discarded."33 In
1995, EPA published its proposed "munitions rule" in the Federal
Register.34 Among other things, EPA proposed that munitions used for
their intended purpose (including research, development, testing and
training) are not regulatory hazardous wastes.35
In the proposed munitions rule, EPA also proposed to define when used or
fired military munitions would be statutory solid wastes.36  EPA
proposed that munitions discharged during military activities at ranges
would be statutory solid wastes when the munitions were left in place at
the time the range closed or was transferred out of DOD control.  EPA
also proposed that this provision would terminate upon DOD's
promulgation of a rule governing the cleanup of munitions on closed and
transferred ranges, and that DOD's rule would supersede all RCRA
authority over such munitions.37
Some commenters on the proposed rule noted that the proposal to "sunset"
regulation of discharged munitions as statutory solid wastes upon
promulgation of a DOD rule directly conflicted with the Federal Facility
Compliance Act, and that EPA had no authority to preempt state authority
to regulate discharged munitions.  Commenters also argued that DOD had
no authority to promulgate such a rule.
EPA's final munitions rule contained the proposal that munitions used
for their intended purpose are not regulatory hazardous wastes.38  EPA
postponed action on the proposal to define when discharged munitions
would be statutory solid wastes, as well as the sunset provision.39
EPA's decision to postpone action was based partly on the comments
objecting it had no authority to preempt state authority, and partly on
the fact that DOD had not promulgated its "range rule."40  EPA stated
that it would further evaluate the legal arguments, and would also
evaluate DOD's proposed range rule; if DOD failed to promulgate the
rule, or if EPA found the rule to be insufficiently protective, EPA
stated it would be prepared to address the issue under Federal
environmental laws.41
EPA's decision to postpone promulgation of this provision does not mean
that discharged munitions on ranges are not statutory solid wastes.  As
noted above, under the Federal Facility Compliance Act, if such
munitions meet the statutory definition of "discarded," they are
statutory solid wastes.  Thus, the current state of the law is that used
or fired munitions on ranges are statutory solid wastes if they are
discarded.  The Department of Justice took this position in recent
litigation.42  Thus, under the munitions rule, munitions use does not
require a RCRA permit, but the used munitions are subject to RCRA's
cleanup authorities in appropriate circumstances.
	DOD's proposal differs from the munitions rule in at least three
significant ways. 43  First, DOD's proposal narrows RCRA's statutory
definition of solid waste, while the munitions rule does not affect
RCRA's statutory definition of solid waste.  Thus, unlike the munitions
rule, this statutory change precludes states and EPA from using RCRA's
imminent and substantial endangerment authorities to address most
munitions-related contamination.
	Second, by narrowing the statutory definition of solid waste, a term
used in RCRA's waiver of sovereign immunity, DOD's amendments likely
narrow RCRA's waiver of immunity.  The amendments may thus preempt state
authority to require the cleanup of most munitions-related contamination
on operational ranges, including unexploded ordnance and perchlorate
contamination, under RCRA.  (And as described above, potentially at
contractor sites and elsewhere.)  In contrast, the munitions rule does
not preempt state authority at all.  In the preamble to the final rule,
EPA expressly acknowledged that under RCRA sections 3006 and 3009,
"States may adopt requirements with respect to military munitions that
are more stringent or broader in scope than the Federal requirements."44
Third, by including the phrase "or constituents thereof," in paragraphs
2019(a)(1) and (a)(2), DOD's proposal may well preempt state and EPA
authority over munitions-related and explosives-related constituents
(e.g., perchlorate, TNT, white phosphorous) that have leached from the
munitions and are contaminating the environment. The munitions rule does
not address munitions constituents at all, and does not prevent EPA or
the states from requiring cleanup of these chemicals when they leach
from munitions into the soil or groundwater.45

Proper "triggers" for cleaning up munitions.  We agree that if any of
the three "triggers" DOD describes exists, action should be taken to
investigate and clean up munitions-related contamination.  However,
these triggers are not adequate to ensure DOD manages its ranges in a
manner that is sustainable, either from a readiness or an environmental
perspective.  As DOD noted in its "Munitions Action Plan,"46:

There is increasing concern, inside and outside DoD (from both the
general public and regulatory agencies), about the impacts of DoD's
munitions-related programs on the environment, including the operations
of our range infrastructure.  These concerns need to be addressed in a
way that enhances and sustains our mission readiness over the long-term.
 Inaction, or implementation of inappropriate measures, could lead to
increased restrictions on our range operations and munitions management
procedures, and ultimately detract from readiness.
Strong explosives safety and environmental protection programs are
integral components of a strong national defense.47
It is somewhat ironic that at the same time DOD has recognized that
"strong . . . environmental protection programs are integral components
of a strong national defense," it is supporting a legislative proposal
that would substantially weaken the only state and federal programs
designed to address groundwater contamination.

It is also ironic that DOD's proposed legislation would also likely
impair or eliminate state and EPA authority to require investigation or
cleanup of munitions contamination under any of the three triggers that
DOD says are appropriate for addressing munitions-related
contamination.48  The first trigger is when a range ceases to be
operational.  As described above, DOD's proposal likely impairs state
and EPA CERCLA-type authorities at closed ranges, and may impair the
ability of local governments, water utilities, developers, and others to
obtain reimbursement from DOD for their costs in cleaning up DOD's
munitions-related contamination.49

DOD's second trigger for addressing munitions-related contamination is
when military munitions or their constituents migrate or threaten to
migrate off-range.  This trigger is likely inadequate to protect human
health and the environment.  Under DOD's proposed legislation, the
presence of munitions contamination in groundwater below a range is not
considered to be "off-range." Instead, the contamination must move
beyond the lateral boundary of the range before it is considered
off-range. Given that some ranges encompass hundreds of square miles, it
is unwise to wait until munitions contamination threatens to move beyond
the lateral boundaries of the range to address it.  Allowing
contamination to spread so far substantially increases the risk of
unanticipated exposures to the contaminants, because our understanding
of the subsurface environment is limited at best.  It also substantially
increases the costs of cleaning up the contamination -- if cleanup is
even possible over such large areas.  These concerns underscore the
importance to the states of retaining the authority to require
investigation of munitions contamination on ranges.  Without this
authority, how would regulators ever become aware of munitions
contamination in groundwater until it had impacted drinking water supplies?

DOD's third trigger is when the contamination presents an imminent and
substantial endangerment.  Such an endangerment could arise on-range or
off-range.  If the endangerment were off-range, state and EPA authority
to address it would be impaired, because they could take no action to
require DOD to identify or address an on-range source of contamination.
And if the endangerment were on-range, the state and EPA would be
completely powerless to require any action under RCRA or CERCLA. 50  One
example where on-range contamination likely presents an imminent and
substantial endangerment is the Aberdeen Proving Grounds.  There,
perchlorate contamination from munitions has contaminated municipal
drinking water wells that are located on an operational range.

8.	Myth: The RCRA and CERCLA provisions of the RRPI effectively exempt
munitions and constituents that are deposited on an operational range
and then simply left behind, whether or not the range is actually used
for testing and training.

Fact: The RRPI RCRA and CERCLA provisions are narrowly constructed so as
to apply only at operational ranges.
* The proposed legislation specifically states that nothing in the RRPI
affects  legal requirements applicable to military munitions and their
constituents once the range ceases to be an operational range.
* In cooperation with EPA, the amendments to RCRA and CERCLA have been
revised to make it absolutely unambiguous that they do not affect our
cleanup obligations on closed ranges or ranges that may close in the
future.

Response: We have previously rebutted the argument that DOD's 2002 and
2003 RRPI proposals only applied to operational ranges in detail in our
testimony before Congress.  Although the 2004 RRPI does not appear to
preempt RCRA authorities on closed ranges, it likely would impair state
and EPA CERCLA-related authorities over closed ranges.51  In addition,
as noted above, the definition of "operational range" includes ranges
that have not been used in years, or even decades.52

Regarding the bulleted points, subsection (d) of the 2004 RRPI provides
"[n]othing 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."  DOD's contention that
subsection (d) preserves state and federal cleanup authorities over
closed ranges has previously been rebutted in our testimony.  Briefly,
in 1997, EPA deferred promulgation of a rule that would have codified
EPA's interpretation that munitions left in place at the time a range
closed or was transferred out of military control are solid wastes as
defined in RCRA.  In light of EPA's regulatory inaction, DOD may argue
that there currently are no legal requirements applicable to munitions
that were deposited on a range while it was operational, and remain
there after it has closed. 

Additionally, the federal government has repeatedly argued that the term
"requirements" should be construed very narrowly, to encompass only
precise standards capable of uniform application.53  This gives DOD a
second basis to argue that subsection (d) does not preserve the
application of state cleanup authorities. 

9.	Myth: The RRPI proposal exempts not only military use of munitions
for training, but also private defense contractors' use of munitions for
research and development.

Fact: The RCRA and CERCLA provisions of the RRPI provide no protections
or relief to private contractors from regulation beyond those that
already exist in law or under longstanding EPA and State environmental policy.
* The RRPI RCRA and CERCLA legislative proposals simply codify the
existing principle that use of a product for an intended purpose is not
a waste management activity subject to RCRA or a "release" subject to CERCLA.
* Current environmental principles are the same for both use of
munitions in training and use of munitions for research, development,
testing, and evaluation (RDT &E). RDT &E is not now regulated under RCRA
or CERCLA, regardless of who is conducting the RDT&E and whether the
object of the RDT &E is a military munitions or commercial product.
* Nonetheless, DoD has limited RRPI's RCRA and CERCLA provisions to
activities occurring on operational ranges. To qualify as an
"operational range," the property, whether owned by DoD or some other
entity, must be under DoD's jurisdiction, custody, or control" and used
for "range activities" (i.e., used for research, development, testing,
and evaluation of military munitions, ordnance or weapons systems, or
for the training of military personnel in their handling). Thus,
activities involving military munitions that take place on the premises
of a private defense contractor are not conducted on an "operational
range" and have no more protection under the RRPI than they already have
under current RCRA and CERCLA law and regulation.

Response: We do agree that the munitions rule generally treats
contractor-owned facilities the same as DOD-owned or leased facilities.
However, we disagree with the rest of DOD's statements in "Myth # 9."
DOD mischaracterizes the scope of the exemptions under the munitions
rule, and also mischaracterizes the scope of the 2004 RRPI. The 2004
RRPI creates exemptions from RCRA regulation that are far broader than
those in the munitions rule - specifically, unlike the munitions rule,
the RRPI exempts munitions and munitions constituents from RCRA cleanup
authorities. 54

	DOD says that the 2004 RRPI does not extend its exemptions to defense
contractor facilities.  We are concerned that this is not the case,
because of recently adopted definitions of the terms "range" and
"operational range." The new definition of "range," codified at 10
U.S.C. [Section] 101(e), provides:

"(3) The term 'range' means a designated land or water area set aside,
managed, and used to conduct research, development, testing, and
evaluation of military munitions, other ordnance, or weapon systems, or
to train military personnel in their use and handling. Ranges include
firing lines and positions, maneuver areas, firing lanes, test pads,
detonation pads, impact areas, electronic scoring sites, buffer zones
with restricted access and exclusionary areas, and airspace areas
designated for military use according to regulations and procedures
established by the Federal Aviation Administration such as special use
airspace areas, military training routes, or other associated airspace."55

Certainly many defense contractors conduct "research and development,"
if not also  "testing and evaluation"  of military munitions, other
ordnance, or weapons systems at their facilities.  Could these privately
owned facilities be considered ranges?  It seems possible, if not
likely, that they could, as there is nothing in the definition of
"range" or "operational range" that limits ranges to land owned or
leased by the United States.
Although "operational range" means a range "under the jurisdiction,
custody or control of the Secretary concerned,"56 the phrase "under the
jurisdiction, custody or control" does not mean the range must be owned
by the United States. 57  We have not been able to identify any
provision of the United States Code or the Code of Federal Regulations
that defines the phrase "jurisdiction, custody or control."  Nor have we
been able to find any decision of a federal court that defines the
phrase.  Taken individually, none of these terms implies ownership.
Indeed, DOD has previously argued that facilities it does not own or
lease may nonetheless be under its jurisdiction, custody, or control. In
1997, in the preamble to its proposed "Range Rule," DOD stated that it
retained jurisdiction over military munitions on closed ranges that had
been transferred to private ownership.58  And in the fall of 2001, DOD
forwarded proposed legislative language to the Office of Management and
Budget that appeared to define the Secretary of Defense's "jurisdiction"
to include facilities no longer owned by, leased to, or otherwise
possessed by DOD, but at which DOD is carrying out a response action
under the Defense Environmental Restoration Program (DERP).59
DOD and counsel for DOD contractors could make similar arguments were
these amendments to pass.  For example, DOD might assert that defense
contractor facilities are under its "control"  because of contractual
provisions that give it ownership of weapons or munitions, or some
degree of control over their manufacture or use.  DOD might also assert
that it has "jurisdiction" over facilities it does not own because the
CERCLA National Contingency Plan designates DOD as the "removal response
authority with respect to incidents involving DOD military weapons and
munitions or weapons and munitions under the jurisdiction, custody, or
control of DOD."60
Furthermore, in the definition of "range," the term "designated" is
undefined.  As far as we have been able to determine, there is no
provision in the United States Code or the Code of Federal Regulations
that establishes a procedure for "designating" a range. Nothing in the
proposed definition explains or limits who designates a range, or how
they designate one.  Could a military contractor designate a range on
land it uses to test or manufacture munitions?  Perhaps.  Nothing in the
legislation adopted by Congress prevents it.

10.	Myth: The RCRA and CERCLA provisions of the RRPI will protect ranges
owned by private companies or defense contractors.

Fact: DoD's [sic] has developed a definition of "operational range"
specifically designed to prevent private companies or defense
contractors from applying the RRPI to their lands even if they use them
as ranges.
* Property, whether owned by DoD or some other entity, must be under
DoD's "jurisdiction, custody or control" and be used for "range
activities," i.e., used for research, development, testing, and
evaluation of military munitions, ordnance or weapons systems, or for
the training of military personnel in their handling, to qualify as an
operational range.
* A range owned by a defense contractor, even though used for military
munitions testing, would not be an operational range because it is not
under the jurisdiction, custody, or control of the DoD; not being an
operational range, it also would not be covered by the RRPI.
* Not only must the range be an "operational range", but only those
activities related to the normal and expected use of military munitions
conducted on the operational range are affected by the Readiness and
Range Preservation Initiative (RRPI) proposal.

Response:  See response to issue # 9.  Regarding the last bulleted
point, see footnotes 25 and 26 and the accompanying text.

11.	Myth: The RRPI RCRA and CERCLA provisions will prevent environmental
regulators from protecting public health from groundwater contamination
from ranges.

Fact: The RCRA and CERCLA provisions of the RRPI apply only at
operational ranges. They have no affect on any regulatory authorities at
other than operational ranges.
* Even at operational ranges, if military munitions or their
constituents migrate off the range, existing environmental laws would apply.
* If munitions constituents cause an imminent and substantial
endangerment to the public health or welfare or the environment EP A may
address the concern under its CERCLA section 106 authority.
* Nothing in the legislative proposal affects any State or Federal
authorities under the Safe Drinking Water Act to take such action as may
be necessary to protect the public from a "contaminant which is present
or is likely to enter a public water system or an underground source of
drinking water." This is the authority EPA used to order cleanup at the
Massachusetts Military Reservation (MMR).

Response:  The argument that DOD's proposals only apply at operational
ranges has been addressed previously.61  And the first bulleted point is
quite misleading.  Under the 2004 RRPI, even if munitions contamination
has migrated beyond the lateral borders of a range, neither states nor
EPA would have any authority (other than EPA's CERCLA [Section] 106
authority) to require investigation or cleanup of an on-range source of
such contamination.  Preserving EPA's CERCLA [Section] 106 authority
does not provide much comfort to the states, frankly.  EPA has never
issued a [Section] 106 order to DOD, and may not do so without the
concurrence of the Department of Justice.62

The fact that DOD has thus far excluded the Safe Drinking Water Act from
its legislative proposals in no way justifies preempting state or EPA
authority under RCRA and CERCLA, for a variety of reasons.  Most
importantly, as described in our response to Myth # 1, DOD has still not
cited a single instance in which RCRA or CERCLA has impacted readiness
at all, so there is no basis for preempting state or EPA authorities
under them.

Moreover, the SDWA is simply not an adequate substitute for RCRA or
CERCLA authorities.  Although the EPA does have broad remedial authority
under the SDWA's imminent hazard provision, the SDWA is fundamentally
not a cleanup statute.  It contains no guidelines or procedures for
investigating or cleaning up contamination.  Instead, it primarily
regulates suppliers of public drinking water.  State agencies
implementing the SDWA do not typically have remedial programs
established under state drinking water laws.  Some states do not even
have any cleanup authorities under their authorized SDWA programs, nor
are they required to.63  Furthermore, the Safe Drinking Water Act does
not apply to individual drinking water wells, nor to water used for
agricultural purposes.  And the Safe Drinking Water Act's waiver of
sovereign immunity is limited in ways that RCRA's is not.64

 And while the Administration may not yet have put forward legislation
to preempt what state and EPA authorities there are under the SDWA, DOD
has expressed its objections to SDWA regulation on multiple occasions,
as recently as February of this year.65  So, the fact that DOD has not
yet proposed to restrict state or EPA authorities under the SDWA
provides no assurance it will not attempt to do so in the future.

It is true that EPA is overseeing cleanup of extensive munitions-related
groundwater contamination at the Massachusetts Military Reservation
under SDWA's imminent hazard  authorities.  However, it is our
understanding that DOD does not believe the SDWA is an appropriate
mechanism for regulating this cleanup, and instead would prefer that
this cleanup be overseen under CERCLA -- the very statute it is now
seeking to render inapplicable to such cleanups.66

12.	Myth: Contamination from munitions and their constituents
(perchlorate, RDX and TNT) have resulted in regulators closing ranges in
Maryland and Massachusetts because of groundwater contamination. If RRPI
passes, environmental regulators will lose the authorities they used at
these facilities.

Fact: There will be no change. There is no request by DoD for any
exemption from the Safe Drinking Water Act, the law that protects
drinking water sources. The basis for USEPA's action at the
Massachusetts Military Reservation will be unchanged.

Response:  See response to issue # 11.

13.	Myth: If the RRPI passes, DoD will not do anything to assess and
address contamination at its ranges.

Fact: Groundwater impact assessments have been done, particularly at
ranges of particular sensitivity or concern, such as the Massachusetts
Military Reservation, among others.
* An effort is now underway to do a more systematic assessment of
potential drinking water issues.
* As part of its FY04 Defense Planning Guidance, the Department has
initiated an effort to assess potential hazards from off-range munitions
and begin remediation by FY2008. This will include characterization of
potential areas of munitions contamination, as well as consideration of
hydrology and potential issues associated with drinking water supplies.

Response:  We applaud any effort by DOD to proactively address
groundwater contamination associated with its ranges.  However,
voluntary efforts by DOD are no substitute for independent state
regulation.  It is our experience that DOD is far more responsive to
environmental concerns when the states are able to hold it accountable
through injunctive relief and, when necessary,  penalties.67

	There is reason to think that DOD's self-assessments may not be
particularly timely, thorough, or reliable.  The General Accounting
Office recently released a report that found "DOD has made limited
progress in its program to identify, assess, and clean up sites that may
be contaminated with military munitions."68  This same report found that
at current funding levels, "cleanup at the remaining munitions sites in
DOD's current inventory could take from 75 to 330 years to complete."69
And in an earlier, report, GAO found that the Army Corps of Engineers
(which is responsible for executing the cleanup of "formerly used
defense sites," including former ranges) "does not have a sound basis
for determining that about 38%, or 1,486, of 3,840 formerly used defense
sites do not need further study or cleanup action."70  That GAO report
went on to state that "the Corps appeared to have overlooked or
dismissed information in its possession that indicated hazards might be
present. . . . In other cases, the files contained no evidence that the
Corps took sufficient steps to assess the presence of potential hazards."71

	Additionally, many states have found that DOD's determinations that
formerly used defense sites do not require any cleanup action are
frequently mistaken.  In a 1998 survey of state hazardous waste
programs, nearly half of the responding states said that they had reason
to believe that the Corps had not made sound environmental decisions in
making some "no further action" determinations. Six states had conducted
their own environmental or health assessments at 66 of the sites the
Corps had designated "no further action." These states determined that
32 of the 66 did require cleanup.72

	14.	Myth: Under the RRPI RCRA and CERCLA proposals, DoD will have no
responsibility to respond and regulators will have no authority to
require a response to threats to public health from perchlorate
contamination of groundwater before contaminated groundwater emanates
from the confines of an operational range.

Fact: The Department of Defense is committed to addressing any
contamination that poses an unacceptable risk to human health and the environment.
* If perchlorate or any other contaminant in the groundwater within the
confines of an operational range poses an imminent and substantial
danger because of a release or a threat of release from the range to the
public health or welfare, DoD has the responsibility to take appropriate
action under section lO4(a)(1) of CERCLA.
* Under the Safe Drinking Water Act (SDWA), the EPA Administrator is
empowered to take action necessary to protect the public health from an
imminent and substantial endangerment created by a contaminant that is
present in, or likely to enter, an underground source of drinking water.
EPA need not wait until contamination has spread.
* SDWA allows for citizens suits to enforce any requirement under SDWA.

Response:  See responses to issues ## 11 and 13.  In addition, DOD
statement that the SDWA authorizes citizen suits to enforce any
requirement under that Act is misleading.  The SDWA citizen suit
provision does not authorize citizens to bring suit to enjoin conditions
that present an imminent and substantial endangerment.

1 "MILITARY TRAINING: DOD Approach to Managing Encroachment on Training
Ranges Still Evolving," Testimony before the Committee on Environment
and Public Works, U.S. Senate, statement of Barry W. Holman, April 2,
2003, at unnumbered "Highlights" page.
2 Id. at p. 7.
3 Id. at 5.
4 For example, several states have adopted legislation to encourage or
require consideration of military training needs in land use
decision-making.  See also information on the National Governors'
Association website.
http://www.nga.org/center/topics/1,1188,C_CENTER_ISSUE^D_4504,00.html.
5 See STATEMENT BY THE ATTORNEYS GENERAL OF: ARIZONA, CALIFORNIA,
COLORADO, DELAWARE, HAWAII, IDAHO, MASSACHUSETTS, NEW HAMPSHIRE, NEW
MEXICO, NORTHERN MARIANA ISLANDS, NEW YORK, OREGON, SOUTH DAKOTA, UTAH
AND WASHINGTON submitted in connection with the testimony of Daniel S.
Miller, First Assistant Attorney General, Colorado Department of Law,
before the Senate Committee On Environment And Public Works, April 2,
2003.  (Hereinafter, "Senate Testimony") This statement is available at
http://www.senate.gov/~epw/108th/Miller_040203.htm
6 The impact of the 2004 RRPI's definition of "release" on state and EPA
CERCLA-type authorities over closed and transferred ranges is not
entirely clear. On the one hand, proposed "Sec. __ Range
Management"(b)(2)(C) (hereafter, all cites to the 2004RRPI are to the
unnumbered section titled "Range Management")  of DOD's 2004 proposal
may be read to suggest that once a range ceases to be operational, the
presence of any munitions that remain on the range constitutes a
"release."  It doesn't specifically state that the presence of such
munitions contamination is a release, but it seems to permit such an
argument.
On the other hand, under DOD's proposal, the initial deposit of the
munition on the range is likely still excluded from the definition of
release.  This is because CERCLA defines a "release" as "any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous substance or pollutant
or contaminant)." However, the UXO that remains on an operational range
after it has closed is not being spilled, leaked, poured, etc.  It's
just there.  Thus, DOD may argue that the mere presence of unexploded
ordnance on a now-closed range still does not constitute a release.
Nearly all of EPA's authorities under CERCLA are keyed to the existence
(or threat) of a release.  And  the scope of CERCLA's waiver of
sovereign immunity also is a function of the definition of release, as
explained in Senate Testimony, supra fn. 4.  In a dispute between DOD
and a state over the scope of CERCLA's waiver of sovereign immunity, we
are concerned that a court would give undue deference to DOD's position
to reach a construction of the statute that results in a narrower
waiver. See Department of Energy v. Ohio, 503 U.S. 607 (1992).
7 Under CERCLA, a person who incurs costs in responding to a release of
a hazardous substance may seek to recover those costs from liable
parties under CERCLA [Section] 107.   In the case of a former military
range now in private ownership, DOD's proposed language likely insulates
it from CERCLA liability as follows.  A party that incurred costs
cleaning up UXO on such a range that sought to recover its costs from
DOD under CERCLA would have to demonstrate that DOD met one of the four
categories of liable parties described in CERCLA [Section]
107(a)(1)-(4).  DOD clearly would not be a current owner or operator
([Section] 107(a)(1)), an arranger ([Section] 107(a)(3)), or a
transporter ([Section] 107(a)(4)). It could only be liable under
[Section] 107(a)(2) as a "person who at the time of disposal of any
hazardous substance owned or operated any facility at which such
hazardous substances were disposed of."  Thus, the person would have to
show that they incurred costs responding to a "release" of a hazardous
substance, that UXO is a "hazardous substance," and that DOD owned the
facility at which the UXO was disposed at the time of disposal.  CERCLA
defines "hazardous substance" to include hazardous wastes having a
characteristic identified under EPA RCRA regulations.  One of those
characteristics is reactivity, and "live" UXO exhibits the
characteristic of reactivity.  So, if UXO is a characteristic hazardous
waste, it is a hazardous substance.
Two aspects of DOD's proposal may serve to defeat any such cost recovery
claim.  First, it appears that under (a)(2)(D), munitions contamination
that remains on a range after the range is no longer an operational
range may be considered a solid waste, and thus potentially a hazardous
waste and a hazardous substance.  But a range may only cease to be
"operational" when the land has been transferred out of federal
ownership, or possibly not until the transferred land has been put to a
use that is inconsistent with being a range.  In either case, any
munitions contamination on the range would not become a solid waste (and
thus a hazardous substance) until DOD no longer owns the land.  If so,
cost recovery claims against DOD under CERCLA [Section] 107(a)(2) would fail.
Second, as described in fn. 5 above, DOD may argue that the mere
presence of unexploded ordnance on a now-closed range still does not
constitute a release.  If successful, this argument would also defeat a
cost recovery claim.
8 Nothing in the new definition of range restricts the amount of time a
range can be inactive and still be considered "operational." See 10
U.S.C. 101(e)(3)(B). 
9 The EPA survey "Used or Fired Munitions and Unexploded Ordnance at
Closed, Transferred, and Transferring Military Ranges: Interim Report
and Analysis of  EPA Survey Results," EPA OSWER, EPA 505-R-00-01, April
2000, pp. 10-11.

10 Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998).
11, Id. at 1173-74.
12 Colon v. Carter, 633 F.2d  964 (1st Cir. 1980).
13 Id. at 967.
14 See DOD's "Myth and Fact" number 7, infra.
15 This argument appears more explicitly in DOD's legislative background
materials accompanying the introduction of the RRPI in 2003.  It also
appears in testimony that DOD has provided on this issue over the years.
 See, e.g., STATEMENT BY HONORABLE MARIO P. FIORI, ASSISTANT SECRETARY
OF THE ARMY
(INSTALLATIONS AND ENVIRONMENT) BEFORE THE HOUSE ARMED SERVICES COMMITTEE
SUBCOMMITTEE ON MILITARY READINESS U.S. HOUSE OF REPRESENTATIVES, MARCH
14, 2002
16 For DOD sites that are on the NPL, DOD selects the remedy with EPA's
concurrence; if EPA does not concur, it selects the remedy.  42 U.S.C.
[Section] 120(e)(4)(A).  At non-NPL sites, DOD selects the remedy
without EPA participation.  E.O. 12580(2)(d).
17 Pursuant to the EPA munitions rule, the use of munitions on ranges is
exempt from RCRA permitting requirements, so the only part of the RCRA
citizen suit provision that is at issue is the "imminent and substantial
endangerment" provision.
18 See DOD's "Myth and Fact" number 7, infra.
19 See also the Stewman case and the cites to the NCP in the preceding text.
20 See, e.g., 42 U.S.C. [Section] 6925(a) (directing EPA to promulgate
regulations "requiring each person owning or operating" a hazardous
waste treatment, storage or disposal facility to have a RCRA permit); 33
U.S.C. [Section] 1311 and 1342 (together prohibiting discharge of
pollutants except in compliance with a permit issued under the Clean
Water Act); 42 U.S.C. [Section] 7661b(a) ("Any source specified in
section 7661a(a) of this title shall become subject to a [Clean Air Act]
permit program, and required to have a permit, on the later of the
following dates . . . .").
21  This figure comes from information provided by DOD to the General
Accounting Office.  Additionally, during oral argument in the case
challenging the EPA's munitions rule, Department of Justice attorneys
stated that "The Department of Defense has 2100 active and inactive
ranges.  The land portions of these ranges alone encompass approximately
24 million acres."  Tides Center and Military Toxics Project v.
Environmental Protection Agency, case no. 97-1342, transcript of April
2, 1998 oral argument before the U.S. Court of Appeals for the District
of Columbia, p. 32.  The new definition of "operational range"
encompasses both active and inactive ranges.  See 10 U.S.C. [Section]
101(e)(3). 
22 Assessment compiled by Democratic staff of the House Energy and
Commerce Committee, available on the Committee's website at
http://www.house.gov/commerce_democrats/press/dod_final_chart.pdf.
23 See response to "Myth #9."
24 See footnote 6, supra.  The 16 million acre figure is cited in a 2001
GAO report titled "ENVIRONMENTAL LIABILITIES: DOD Cleanup Cost Estimates
Are Likely Understated," GAO-010479, April 2001, p. 11.
25 Paragraph (a)(1) of DOD's 2004 proposal may be read two different
ways.  The alternative readings arise because the grammatical
construction of this paragraph -- a long series of phrases set off by
commas -- is ambiguous at best.  The phrase that starts "that are or
have been deposited, incident to their normal and expected use, on an
operational range, and remain thereon" could modify the term "military
munitions," or it could modify the phrase "including unexploded
ordnance, and the constituents thereof." If the limiting phrase "that
are or have been deposited, incident to their normal and expected use,
on an operational range, and remain thereon" modifies "unexploded
ordnance, and the constituents thereof," then the only limitations on
the types of military munitions exempted from RCRA under paragraph
(a)(1) of DOD's 2004 proposal are the four specific examples set forth
in (a)(2)(A)-(D).  Paragraph (a)(1) might as well read "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." Because this
interpretation would result in a narrower scope of state authority over
DOD, we are concerned it is the one a federal court reviewing this
language would adopt, utilizing judicial doctrine on waivers of
sovereign immunity.  See Department of Energy v. Ohio, 503 U.S. 607 (1992).
26 Subparagraph (a)(2)(C) of DOD's proposal says that munitions or
munitions constituents that are "deposited" off an operational range do
not fall within paragraph (1)'s exclusion from the definition of solid
waste.  "Deposit" is one of several different actions that constitutes
"disposal" under RCRA.  A court interpreting DOD's proposed amendment to
RCRA would certainly look to the definition of disposal in interpreting
the word "deposited."  Again, because courts give meaning to all words
in a statute, "deposit" would likely be construed as meaning something
different than the other actions that constitute disposal.  Therefore,
munitions that are discharged, injected, dumped, spilled or placed off
an operational range (or on one, for that matter) would still fall
within (a)(1)'s exclusion from RCRA's definition of solid waste.
27 Because these munitions do not meet any of the criteria set forth in
proposed (a)(2), under the broad reading of (a)(1) (see footnote 25),
DOD could argue that they would no longer be solid wastes, and thus not
subject to state or EPA regulation under RCRA.
28 42 U.S.C. [Section] 6903(6) and (27).
29 42 U.S.C.[Section] 6921.
30 42 U.S.C. [Section] 6924(u) and (v), 6925(a); 6928(h), 6972(a)(1)(B),
and 6973(a).  The permitting requirements in turn incorporate RCRA's
regulations governing the day-to-day management of hazardous wastes
(e.g., requirements related to safe storage, labeling, treatment,
manifesting, training, etc.).
31 Pub. L. No. 102-386.
32 42 U.S.C. [Section] 6924(y).
33 See 42 U.S.C. [Section] 6903(27); Military Toxics Project v. EPA, 146
F.3d 948, 950-51 (D.C. Cir. 1998).
34 60 Fed. Reg. 56468.
35 Id. at 56492.
36 Id.
37 Id.
38 62 Fed. Reg. 6625, 6654 (Feb. 12, 1997), codified at 40 CFR [Section] 266.202.
39 Id. at 6632.
40 Id.
41 Id.
42 See Water Keeper Alliance v. U.S. Department of Defense, 152 F.
Supp.2d 163, 176, n. 3 ("Defendants [the United States] point out that
they 'do not seek dismissal of any claim that ordnance debris and
unexploded ordnance left to accumulate on the [Live Impact Area]
constitute solid waste.' [citation omitted] Consequently, the Court will
not dismiss this claim.")
43 See Senate Testimony, section titled "DOD's amendments do not simply
codify EPA's 'Military Munitions Rule,'" for additional detail.
44 62 Fed. Reg. 6625 (Feb. 12, 1997).
45 62 Fed. Reg. 6631.
46 Department of Defense Munitions Action Plan: Maintaining Readiness
through Environmental Stewardship and Enhancement of Explosives Safety
in the Life Cycle Management of Munitions, prepared by Operational and
Environmental Executive Steering Committee for Munitions (OEESCM),
November 2001.
47 Id. at 5.
48 See response to Myth # 6.
49 See footnotes 6 and 7, supra.
50 DOD would say that its proposal preserves EPA's CERCLA [Section] 106
imminent hazard order authority.  However, EPA has never issued a CERCLA
[Section] 106 order to DOD, nor may it do so without the concurrence of
the Department of Justice.  See E.O. 12580(4)(e).   In our view, it is
not realistic to rely on EPA's [Section] 106 authority as a safeguard
against imminent and substantial endangerments at DOD facilities.
51 See footnotes 6 and 7, supra.
52 See footnotes 8 and 9, supra, and accompanying text.
53 See, e.g., U.S. v. New Mexico, 32 F.3d 494 (10th Cir. 1994); Colorado
v. U.S. Department of the Army, 707 F.Supp. 1562 (D.Colo. 1989); Kelley
v. U.S., 618 F. Supp. 1103 (W.D. Mich. 1985); and U.S. v. Pennsylvania
Dep't. of Environmental Resources, 778 F. Supp. 1328 (M.D. Pa. 1991).
54 See Response to "Myth #6."
55 H.R. 1588, section 321.
56 10 U.S.C. 101(e)(3).
57  Compare the "jurisdiction, custody or control" phrase with language
creating the Defense Environmental Restoration Program in 10 U.S.C.
[Section] 2701(c):
(1) Basic responsibility.--The Secretary shall carry out (in accordance
with the provisions of this chapter and CERCLA) all response actions
with respect to releases of hazardous substances from each of the following:
	(A) Each facility or site owned by, leased to, or otherwise possessed
by the United States and under the jurisdiction of the Secretary.
	(B) Each facility or site which was under the jurisdiction of the
Secretary and owned by, leased to, or otherwise possessed by the United
States at the time of actions leading to contamination by hazardous substances.
	(C) Each vessel owned or operated by the Department of Defense.
(Emphasis added.)
In fact, the language of (B) clearly indicates that jurisdiction is a
distinct concept from ownership.
58 62 Fed. Reg. 50796, 50797 (September 26, 1997).  Specifically, DOD stated:
[This proposal] applies to military munitions on closed, transferred,
and transferring military ranges previously or currently owned by,
leased to, or otherwise possessed or used by the United States.  These
military ranges may not be under the administrative control of the
Secretary of Defense (or the Secretary of War prior to 1949); however,
the munitions themselves remain under the jurisdiction of the Secretary
of Defense.  For this reason, this proposal applies to military
munitions on closed, transferred, or transferring military ranges where
the range itself is under the administrative control of another Federal
agency or property owner, provided that the activity that led to the
munitions being on those ranges was in support of the Department of
Defense's national defense or national security mission.
Id. at 50797 (emphasis added).
59  DOD's proposal would have amended 10 U.S.C [Section] 2701, which
establishes the DERP.  Its relevant proposed revisions are shown below
in underscored font.
(a) Environmental restoration program.--
	(1) In General.--The Secretary of Defense shall carry out a program of
environmental restoration at facilities under the jurisdiction of the
Secretary listed in paragraph (c) of this section.  The program shall be
known as the "Defense Environmental Restoration Program".
*******
(c) Responsibility for response actions.--
	(1) Basic responsibility.--The Secretary shall carry out (in accordance
with the provisions of this chapter and CERCLA) all response actions
with respect to releases of hazardous substances from each of the following:
	(A) Each facility or site owned by, leased to, or otherwise possessed
by the United States and under the jurisdiction of the Secretary.
	(B) Each facility or site which was under the jurisdiction of the
Secretary and owned by, leased to, or otherwise possessed by the United
States at the time of actions leading to contamination by hazardous
substances where the Secretary is carrying out a response action under
the program established in subsection (a).
	(C) Each vessel owned or operated by the Department of Defense.
60 40 C.F.R. [Section]300.120(d).
61 See footnotes 6, 7, 25 and 26, supra.
62 June 27, 2003 letter from Associate EPA Administrator Edward Krenik
to the Honorable John Dingell, Ranking Member, House Committee on Energy
and Commerce; Executive Order 12580 [Section] (4)(e).
63 42 U.S.C. [Section] 300h--7(a).
64 42 U.S.C. [Section] 300j--6 (a) waives sovereign immunity for federal
agencies:
(1) owning or operating any facility in a wellhead protection area;
(2) engaged in any activity at such facility resulting, or which may
result, in the contamination of water supplies in any such area;
(3) owning or operating any public water system; or
(4) engaged in any activity resulting, or which may result in,
underground injection which endangers drinking water (within the meaning
of section 300h(d)(2) of this title).
65 On March 14, 2002, Mario Fiori, Assistant Secretary of the Army
testified before the Military Readiness subcommittee of the House Armed
Services Committee that
"the use of environmental statutes, such as the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), the
Resource Conservation & Recovery Act (RCRA) and the Safe Drinking Water
Act (SDWA), to require investigation and cleanup of munitions and
munitions constituents on operational military ranges will likely impact
the Army's ability to fulfill its national security mission by causing
the shut down or disruption of live-fire training.  Regulators may
themselves be compelled to enforcement by lawsuits alleging failure to
vigorously apply these and other environmental laws."
And in a February 2004 report to Congress titled "Implementation of the
Department of Defense Training Range Comprehensive Plan," DOD stated:
"Military live-fire training and testing activities by necessity deposit
unexploded ordnance (UXO) and munitions constituents onto military
lands.  CERCLA, RCRA, the Clean Water Act (CWA), and the Safe Drinking
Water Act have implications for the use of military munitions, to
include UXO and munitions constituents on operational ranges.  There is
a growing recognition that the application of these environmental laws
in ways unanticipated or unintended when first enacted can reduce range
access, availability, capacity, and capability."
Id. at p. 32.
66  These views were expressed by DOD representatives at a meeting with
various state agency and Attorney General representatives in Denver,
Colorado, on December 11 and 12, 2003.
67 See Senate Testimony under the section titled "DOD's compliance
record warrants a regulatory structure that ensures accountability."
The only environmental law under which DOD's compliance record is better
than private industry's is RCRA.  The record shows that this is the
result of RCRA's clear waiver of sovereign immunity from state fines and penalties.

68  "MILITARY MUNITIONS: DOD needs to Develop a Comprehensive Approach
for Cleaning Up Contaminated Sites," GAO-04-147, December, 2003, p. 4.
This report is available at GAO's website: www.gao.gov.
69 Id. at 17.
70 ENVIRONMENTAL CONTAMINATION: Corps Needs to Reassess Its
Determinations That Many Former Defense Sites Do Not Need Cleanup."
GAO-02-658, August 2002, p.4.
71 Id.
72 Contamination at the 32 sites included high levels of PCBs,
unexploded ordnance, leaking underground storage tanks, asbestos, and
groundwater contamination. "No Further Action Survey,"  Association of
State and Territorial Solid Waste Management Officials, December 1998.
Several of the states that responded they did not have any reason to
doubt the Corps' determinations commented that they had not assessed the
sites themselves.  The complete survey is available on ASTSWMO's website
at http://www.astswmo.org/Publications/bookshelf.htm by clicking on
"Federal Facilities" and then on "No Further Action Review Efforts at
Formerly Used Defense Sites (NOFA FUDS) December, 1998."


--


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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