It's Still about Perchlorate

[Lenny Siegel <lsiegel@cpeo.org>]

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It's Still About Perchlorate ... and RDX, HMX, TNT, etc.

In one of its fact sheets on the 2004 Readiness and Range Preservation
Initiative (RRPI), the Defense Department (DOD) plays down the impact
the proposed legislation would have on perchlorate response (see #1
below). Since the explanation appears to respond to charges I made last
year (see #2 and #3 below), I am repeating my argument.

The proposed legislation would anchor in statute the provisions of U.S.
EPA's Military Munitions Rule that limit regulator management of
explosive risks on active and inactive ranges, but it goes much further.
It would prevent state, tribal, and federal regulators from requiring
sampling, under the hazardous waste laws, for explosive constituents and
byproducts until those chemicals have migrated off the range, wherever
the Defense Department deems to draw the range boundaries. Even if
contamination were found off the range, the regulators still could not
require characterization or remediation on range.

This is the difference between the existing regulatory framework and
DOD's proposed new approach, so that, I've concluded, is what motivates
the legislation.

Explosive constituents have been found on or migrating from operational
ranges such as Camp Edwards/Massachusetts Military Reservation, Camp
Stanton/Aberdeen Proving Ground (Maryland), and Ft. Lewis (Washington).
At least three huge California bases containing ranges (Vandenberg Air
Force Base, China Lake Naval Weapons Station, and Edwards Air Force
Base) have significant perchlorate contamination, but we don't know yet
which portions of those bases the military considers "operational
ranges" for the purpose of determining the extent of regulatory oversight.

Why isn't the list longer? Because at most range the military hasn't
sampled, even though simulators and other pyrotechnics, rockets, and
high explosives tend to release toxic substances into the soil and water.

This isn't a theoretical problem. Last I counted, the military
controlled over 20 million acres of operational range land within the
United States.

The Defense Department argues that regulators cannot order it to sample
for perchlorate in the absence of a promulgated regulatory standard, and
through the White House it has prevented U.S. EPA for issuing a federal
standard. Here in California, that  wouldn't make too much of a
difference, since the state is well on the way to establishing its own
standard. (That standard, 6 parts per billion in drinking water, is
unacceptably lax for the purpose of protecting our drinking water, but
it's stringent enough to require potentially responsible parties to
sample.)

However, if the RRPI language is enacted, California's standard would no
longer qualify as an Applicable or Relevant and Appropriate Requirement
(ARAR) on operational ranges. Thus, even in states that promulgate
official standards, regulators would be stuck at range boundary lines,
waiting for contamination to spread. And if it spreads that far, in will
be difficult to contain, let alone remediate.

Lenny Siegel


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#1. From DOD's April 6, 2004 "Readiness and Range Preservation
Initiative Q & A"

Is RRPI about perchlorate?

Although RRPI would apply to perchlorate contamination from munitions
test and training activity on an operational range, as it would to any
constituent from test and training activity on an operational range, it
applies only as long as the munitions and their constituents remain on
range and don't create an imminent threat to public health or the environment.

Nothing in RRPI alters the financial, cleanup, or operational
responsibilities of DoD contractors, or of DoD with respect to its
contractors, either regarding perchlorate or any other chemical, or
DoD's responsibilities with respect to closed ranges, Formerly Used
Defense Sites, ranges that may close in the future, DoD's non-readiness
activities, or for any constituents (including perchlorate) that migrate
off an operational range.

Nothing in RRPI applies to perchlorate contamination resulting from
manufacture, storage, maintenance, or disposal of perchlorate, either on
or off DoD ranges.

Nothing in RRPI affects state or federal authority to address
perchlorate or other munitions constituents under the Safe Drinking
Water Act.

------------------------------------------------------------------------
#2. Lenny Siegel's May 2, 2003 message to CPEO's Military Environmental
Forum listserve.

It's All about Perchlorate

The Department of Defense continues to press its Readiness and Range
Preservation Initiative (RRPI) in Congress, but key provisions of the
proposed legislative language, those dealing with munitions and
explosive constituents, have nothing to do with readiness. Careful
comparison with existing laws and regulation demonstrates: It's all
about perchlorate.

Perchlorate is a primary constituent of solid rocket fuel, as well as
other munitions such as smokes, flares, and certain types of spotting
charges. According to the Environmental Working Group (see
http://www.ewg.org/reports/suspectsalads/es.php), "Perchlorate
contaminates more than 500 drinking water sources in 20 states, serving
well over 20 million people" - including the Colorado River. According
to U.S. EPA, "Perchlorate interferes with iodide uptake into the thyroid
gland," inhibiting the development of fetuses and young children and
causing a variety of other conditions in both children and adults.

EWG has identified 162 sites, in 36 states, where perchlorate has been
manufactured or used. This is merely the tip of the iceberg. Perchlorate
has been made, used, stored, or disposed of at hundreds of current and
former military installations across the country, including infantry
ranges, Nike missile silos, and ammunition plants. The only reason we
don't know how many sites are contaminated with perchlorate is that the
Defense Department hasn't looked.

The primary reason the Defense Department isn't systematically seeking
and remediating perchlorate contamination is the price tag. Reportedly,
sometime last year Defense officials figured out that addressing the
national perchlorate mess would cost it billions of dollars. Not
surprisingly, the military would prefer to spend the money deploying
ships, buying planes, and designing a missile defense shield - with
perchlorate rockets.

Defense Department lawyers claim that their RRPI proposal is based upon
U.S. EPA's Military Munitions Rule, but there's an important difference.
RRPI would exempt "explosive constituents" from normal oversight under
the nation's hazardous waste laws; the Munitions Rule doesn't. As
proposed RRPI would make it difficult, if not impossible, for
environmental regulators to insist that the armed services sample and
clean up perchlorate at the source, on properties covered by the
legislation.

Even if that language is fixed to apply only to "operational ranges,"
hundreds of military training and testing ranges would remain exempt
from requirements for investigation. Yet at ranges where groundwater has
been sampled - including Camp Edwards on the Massachusetts Military
Reservation, Camp Stanton at Maryland's Aberdeen Proving Ground, and
former Camp Bonneville, Washington - perchlorate contamination has been
found. Other ranges should be sampled, but the cost of sampling, let
alone cleanup, would be significant.

The Pentagon's realistic fear that it will be required to do something
about this devastating pollutant is driving its proposal, in RRPI, to
weaken the Resource Conservation and Recovery Act and CERCLA (the
Superfund Law). And that's why Congress should reject the legislation.
Instead, it should provide funds and order the Defense Department to
undertake a national comprehensive perchlorate sampling program as the
first step in protecting the American public from this widespread threat
to our health.

Lenny

------------------------------------------------------------------------
#3. Lenny Siegel's March 18, 2003 message to CPEO's Military
Environmental Forum listserve.

Connecting the perchlorate dots   

The Department of Defense (DOD) Readiness and Range Preservation
Initiative (RRPI), together with its resistance to stringent proposed
cleanup standards for perchlorate, may leave regulatory agencies
powerless to require remediation of contaminated water affecting
millions of Americans. That is, it is using its influence to delay
promulgation of a federal cleanup goal for perchlorate while attempting
to undermine the legal status of state standards.

Here's how I connect the dots:

1. DOD contends that it doesn't have to clean up perchlorate until there
is a promulgated standard. I know many regulators who disagree, but DOD
is likely to challenge them in court.

2. The Bush Administration is likely to delay promulgation of that
standard. Because the Defense Department and federal regulators are
required to speak publicly with one voice - a voice "harmonized" in the
White House - the Pentagon has enormous power to influence the
standard-setting process, a power not normally afforded other polluters.

3. Despite delays caused by contractor litigation, California is likely
promulgate a fairly stringent standard in early 2004. California suffers
from the nation's largest "epidemic" of groundwater and surface water
perchlorate contamination.

4. California's standard will be an Applicable or Relevant and
Appropriate Requirement (ARAR) where cleanup is conducted under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, the Superfund law), and state standards might also apply under
Resource Conservation and Recovery Act (RCRA) Corrective Action or state
hazardous waste laws.

5. DOD's proposed RRPI language would limit the applicability of CERCLA
and RCRA at operational ranges and possibly many more sites. (Note that
Defense Department and state lawyers have a major disagreement over the
scope of the currently proposed language.)

6. At the House Armed Services Committee hearing March 13, 2003 U.S. EPA
Assistant Administrator John Peter Suarez said that the Safe Drinking
Water Act gives EPA the tools it needs to address groundwater issues at
sites that might be exempted from RCRA and CERCLA under the proposed
RRPI legislation.

7. But the Safe Drinking Water Act does not recognize state standards!

8. Thus, DOD hopes to avoid full regulation of its perchlorate sites,
even if California and other states issue protective standards.

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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