RRPI and Range Waste Management

[Lenny Siegel <lsiegel@cpeo.org>]

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I am not a lawyer, but I spend a large fraction of my time trying to
explain to mere mortals what lawyers have said or written. Reviewing the
testimony and analysis of the latest Defense Department attempts to
weaken the Resource Conservation and Recovery Act (RCRA) and the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA - the Superfund law) is particularly challenging.

Right now I'm trying to sort out how existing and proposed regulations
and statutes govern disposal practices on operational (both active and
inactive) military ranges. It's important to recognize that operational
ranges are not just limited to impact areas - the property where fired
or dropped munitions land - but buffer zones. In fact, they include
ranges used for a wide variety of training, many of which have nothing
to do with high explosives.

Thus, there are a large number of munitions scrap piles and open
burning/open detonation (OB/OD) areas on operational ranges.

SCRAP PILES

On operational ranges, scrap piles generally consist of metal scrap
collected during range clearance. This scrap may come from exploded
munitions, or from metal targets such as old trucks and tanks. They may
contain explosive residue, and they also contain hazardous substances -
even radioactive material - that were part of the targets.

It is my understanding that the sorting and disposing of scrap piles,
even on operational ranges, is subject to regulatory oversight. Though
this has sometimes delayed the disposition of such scrap piles, that's a
good thing.

General Weber, Director of Army Training, apparently agrees. On April
21, 2004, he told the House Energy and Commerce Committee, "In response
to issues associated with the removal of range residue, the Army is
chemically characterizing this material and developing best management
practices for managing spent munitions at Army troop training ranges.
All such scrap is subject to RCRA ..."

But that's not all he said. Here's the entire last sentence of that
paragraph: "All such scrap is subject to RCRA and would continue to be
under the RRPI." That's not the way I read the proposed language. (If
anyone knows that I'm missing something implied by a reference to
another section of law, please let me know.)

DOD's current RRPI proposal states, "(1) The term ?solid waste? as used
in the Solid Waste Disposal Act, as amended (42 U.S.C. § 6901 et seq.),
does not include military munitions, including unexploded ordnance, and
the constituents thereof, that are or have been deposited, incident to
their normal and expected use, on an operational range, and remain
thereon." Remember, these scrap piles typically lie in the buffer zones
within operational ranges.

The proposal adds, "(2) Paragraph (1) shall not apply to military
munitions, including unexploded ordnance, or the constituents thereof,
that - (A) are recovered, collected, and then disposed of by burial or
landfilling ..." These scrap piles are NOT buried.

Perhaps, for the purpose of winning approval, the General is narrowly
defining "incident to their normal and expected use." But if the
language were not intended to exempt collected scrap from RCRA, why
doesn't it say "and remain where they landed" and "are recovered or
collected.[period!]"

I'm not a judge, but if I were I would view the proposed language as an
implying that scrap piles would not be regulated, because it would have
been so easy to write it to explicitly cover them.

OB/OD AREAS

Open Burning and Open Detonation historically have been used to dispose
of munitions and their constituents, whether they were collected from
ranges or shipped from stockpiles. Though there have been some disputes
over the extent of regulatory oversight, many of these OB/OD areas, from
Makua to Ft. Carson to Vieques, have been subject to permitting or even
corrective action orders, even though they have been located within the
boundaries of operational ranges. (However, the actual training of
military personnel to do OB/OD is generally not subject to regulation.)

This, too, is a good thing. Open detonation has historically caused
kick-out and low order detonations, spreading explosives over wide
areas, and the open burning of large solid rocket motors has released
large quantities of perchlorate into the environment. Much of this could
have been prevented if regulators had exercised stronger oversight in
the past.

In his prepared testimony, Deputy Under Secretary of Defense
(Installations and Environment) Ray Dubois, stated, "As we have
mentioned, the Military Munitions Rule adopted by EPA under the prior
Administration already provides that munitions used for training
military personnel or explosives and munitions emergency response
specialists, or for research, development, test, and evaluation (RDT&E)
of military munitions, are not solid waste for purposes of RCRA."

This may be true when the bomb or shell lands and possibly explodes, but
at some point the chemicals from that munition may start leaching into
the environment - which is not its "intended purpose." Or the unexploded
munition may be collected for disposal. The Munitions Rule - as cited by
Dubois in a footnote - states, "However, 'use for intended purpose' does
not include the on-range disposal or burial of unexploded ordnance and
contaminants when the burial is not a result of product use."
"Disposal," as this is worded, includes OB and OD, so munitions and
constituents collected for OB/OD are solid wastes for the purposes of RCRA.

RRPI, however, would remove RCRA oversight of munitions collected for
OB/OD because the proposed exception to the proposed exemption (as cited
above) reads, "are recovered, collected, and then disposed of by burial
or landfilling." Munitions awaiting or undergoing OB or OD are not
"disposed of by burial are landfilling."

What happens if an OB/OD area is used for both range-collected munitions
and other discarded munitions? Since permits and orders are issued for
sites (the OB/OD areas) not loads (shipments of discarded munitions OR
range-collected munitions), I am concerned that the Defense Department
may use the proposed exemption for OB/OD to exclude from oversight
munitions that are brought from off range for disposal, and perhaps more
important, to exclude from cleanup requirements contamination caused by
past OB/OD activities.

Dubois also explains, "Accordingly, the current administration provision
makes it clear that only DoD?s readiness activities on DoD operational
ranges are covered by the proposals."  I find it hard to understand how
the open burning or detonation of range-collected munitions (unexploded
ordnance or munitions constituents) is a readiness activity, and I find
it even more far-fetched that the continuing presence of perchlorate or
RDX in the groundwater under an OB/OD pit or pan is a readiness activity
that should be exempt from regulatory oversight.

IN SUMMARY

In summary, General Weber told Congress that one form of waste disposal
- the disposition of range scrap - would not be exempt from oversight
under RRPI, but I believe it would be exempt. And Mr. Dubois told
Congress that certain waste disposal activities (OB/OD) - among other
activities - are already exempt. I don't think that's true either, but
RRPI would make it much more difficult to ensure that contamination from
OB/OD areas is detected, mapped, and remediated, until that
contamination is detected in our water supplies. And that is unacceptable!

Lenny Siegel

--


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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