The December 2004 issue of Environmental Health Perspectives - perhaps
the premier U.S. environmental health scientific journal - contains two
important articles about military toxins and environmental health. Both
are available for free on the EHP web site at
http://ehp.niehs.nih.gov/members/2004/112-17/focus.html#price
One of the articles - which is specifically about DOD's proposed
sweeping new exemptions from federal public health laws and the
recently settled Fort Richardson lawsuit - is pasted below.
--
Steve Taylor
National Organizer
Military Toxics Project
"Networking for Environmental Justice"
www.miltoxproj.org
(207) 783-5091
The Price of Preparing for
War
Located a few miles from Anchorage, Alaska's
Eagle River Flats is a coastal saltwater marsh teeming with fish,
wildlife--and unexploded mortar and artillery shells. The marsh lies on
the Department of Defense's (DOD) 62,000-acre training facility at Fort
Richardson, headquarters to the Army's Alaskan command and control
units. Since World War II, Eagle River Flats has been Fort Richardson's
primary "ordnance impact zone," where soldiers stationed at the fort
come to train with live munitions.
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Catching flak? The Department of Defense has come
under fire for trying to exempt a number of its facilities from
environment-protective laws in the name of maintaining optimal military
preparedness.
image credit: U.S. Department of Defense
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Environmental assessments undertaken at the Flats by the Army have
revealed high levels of contaminants including heavy metals, explosive
compounds, and white phosphorus, a toxic agent used to generate smoke
cover on the battlefield. It was this contamination with white
phosphorus, which can damage bones and major internal organs, that in
1994 landed Eagle River Flats on the Superfund National Priorities
List, a U.S. Environmental Protection Agency (EPA) compilation of the
nation's most polluted properties. Since then, the Army has been
conducting an EPA-approved effort to clean up the white phosphorus.
But in April 2002 the DOD was sued by a citizens' coalition urging
the Army to address remaining contamination problems at the Flats.
Among the plaintiffs were the indigenous Chickaloon Indians, who
claimed the Army's use of live munitions was polluting traditional
hunting and fishing grounds. The suit also charged that unexploded
mortar rounds and artillery shells in the area were leaching toxic
chemicals that were migrating to nearby Cook Inlet. The plaintiffs'
attorney, Scott Allen of the San Francisco, California-based law firm
Cox and Moyer, says the suit requested that the Army remove some 10,000
unexploded mortar rounds and artillery shells from the area (the number
estimated in the Army's 1998 proposed Superfund cleanup plan),
remediate toxic contamination, and abstain from using the range for
bombing exercises until a Clean Water Act permit had been obtained for
munitions discharges.
When confronted with the lawsuit, the DOD took its case to
Congress. There, it argued that the laws on the books were not intended
to be applied to operational military ranges in this way, citing
long-standing past state and federal regulatory interpretation and
practice. The DOD further argued that suits like those brought at Eagle
River Flats, if successful, could set a legal precedent whereby
environmental litigants could halt military training and thus undermine
troop readiness on the battlefield.
Before the 2002 lawsuit even arose, the DOD had proposed new
legislation called the Readiness and Range Preservation Initiative
(RRPI) to prevent just such lawsuits attempting to use hazardous waste
laws to limit training. The RRPI calls for exemptions from a number of
environmental laws on more than 8,000 operational DOD training ranges,
a land area equal to roughly 24 million acres. Under this proposed new
legislation, munitions would not be subject to hazardous waste
permitting or cleanup requirements as long as they remain on
operational ranges.
Military Readiness and Pollution
Preparing for war is a heavily industrialized mission that
generates fuel spills, hazardous waste, and air pollution. The DOD owns
more than 10% of the 1,240 sites currently on the National Priorities
List, and has estimated the cost of cleaning up these sites at
approximately $9.7 billion. In addition to lead and a variety of
solvents, training facilities release munitions constituents including
perchlorate (a thyroid toxicant), RDX (an explosive compound and
neurotoxicant), and TNT (an explosive compound linked to anemia and
altered liver function).
Nearly 1 in 10 Americans live within 10 miles of a DOD Superfund
site--a sometimes perilous proximity. The Massachusetts Military
Reservation, for instance, a 34-square-mile multi-use training facility
in Cape Cod, is slowly leaching solvents, jet fuel, RDX, and
perchlorate into the area's sole aquifer, a drinking water source for
up to 500,000 people at the height of tourist season.
Military aircraft from DOD facilities also generate noise and air
pollution. For instance, in 1996, the most recent year for which data
are available, more than 50,000 military flights contributed to the
heavy air traffic over Washington, D.C. According to the Democratic
Committee on Energy and Commerce, these flights emitted 75 tons of
nitrogen oxides and volatile organic compounds, which generate smog. In
1999, the Sierra Army Depot, located 55 miles northeast of Reno, was
California's leading air polluter, according to the EPA Toxics Release
Inventory. The base released some 5.4 million pounds of toxic chemicals
that year, including aluminum, copper, and zinc fumes.
As of this publication, Congress has approved legislation requested
by the DOD amending the Migratory Bird Protection Act, portions of the
Endangered Species Act, and the Marine Mammal Protection Act. Now, the
DOD is seeking changes through the RRPI to certain hazardous waste
laws--specifically, the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the Resource Conservation and
Recovery Act (RCRA), and the Clean Air Act (CAA). The DOD acknowledges
that these laws have never been shown to have interfered with specific
military training, but says it can't afford to wait until training is
shut down before it acts. As evidence of the need to act now, the DOD
points to a number of lawsuits and "close calls," including the case at
Eagle River Flats and the Navy's 2002 temporary closure of its Farallon
de Medinilla live-fire training range in the Pacific. That closure
followed a lawsuit filed by the Center for Biological Diversity
alleging that bombing at the range was killing protected migratory
birds.
The DOD argues that even the threat of interference by hazardous
waste litigation justifies its aims. Joe Willging, an environmental
lawyer with the DOD General Counsel's office, says in reference to the
Farallon de Medinilla closure, "We don't feel it's wise to wait for
that kind of train wreck to see if we are going to lose in litigation.
. . . Our job is to send soldiers, sailors, airmen, and Marines into
combat environments in the absolute best-prepared way we can. You can't
do that if you introduce artificialities into training. We want to
maintain the ability to use those ranges in the optimum way based on
military readiness considerations, not on other considerations."
Questions of Scope
Top environmental officials in nearly every state oppose the RRPI,
as do 39 state attorneys general. Their opposition is based on the
DOD's historic environmental record and growing reputation among state
officials for routinely shirking its environmental responsibility. "The
DOD has a consistent track record in litigation going back decades for
trying to get out of its environmental requirements," says Daniel
Miller, Colorado's assistant attorney general for environment. (DOD
officials claim, however, that the department's current compliance with
environmental requirements is comparable to that of private industry in
almost all environmental programs.)
The main goal of the RRPI is to ensure that both munitions and
their constituents are exempt from CERCLA and RCRA hazardous waste
classifications as long as they remain on operational ranges. Once the
range closes or if the munitions or their constituents migrate offsite
or pose an "imminent and substantial danger" to human health or
agriculture, then CERCLA and RCRA authority would come into force. At
that point, according to the DOD, the relevant environmental agencies
would assume jurisdictional authority and impose monitoring
requirements and cleanup orders to address the offsite migration at the
contamination's source.
Finally, the RRPI seeks a three-year extension in the DOD's
obligation to demonstrate compliance with state plans to meet CAA
standards for ozone, carbon monoxide, and particulate matter. The DOD
claims the extension would provide flexibility in its decisions about
where to field and base new weapons and aircraft, noting that military
emissions typically are less than 0.5% of state emission quotas.
However, state attorneys general disagree with the DOD's reading,
and have expressed concern that the RRPI would effectively mean states
could not require the DOD to take any action to address
munitions-related contamination on a range--even if that contamination
were to migrate offsite and contaminate drinking water supplies--unless
regulators could prove imminent and substantial endangerment from the
contamination. Further, says Steve Taylor, a national organizer with
the Military Toxics Project, an environmental group based in Lewiston,
Maine, without their normal authority to order sampling when warranted
either offsite or at the source of contamination, regulators cannot
possibly demonstrate the imminent and substantial endangerment required
to invoke their emergency powers.
Thus, critics argue, the DOD assumes exclusive control over its
facilities, assuming an inappropriate level of oversight given the
department's history with environmental compliance. The problem with
this approach, Taylor emphasizes, is that munitions contamination that
spreads offsite is likely to be harder and more expensive to clean up.
DOD officials contend that because neither the EPA nor any states
have ever attempted to use these laws to regulate military training on
operational ranges, the exemptions merely codify what are already
standard practices. (State and EPA officials disagree with this point,
arguing that the amendments actually reverse existing policy under
which military munitions may become solid waste after they have been
used.) Meanwhile, the DOD adds that it is engaged in a broad voluntary
effort to gauge the potential for munitions constituents to migrate
from any of its facilities, and that it intends to share the results of
this effort with regulators and the public. "The reason DOD is
undertaking these assessments is because we realize that our ranges
must be operated in a sustainable way," Willging says. "If they are
not, and [migrating contamination] endangers public health, the
proposed RRPI provisions will not apply. Therefore, it's in our best
interests to know the condition of our ranges and to respond when
contamination threatens to spread."
Opponents argue that the DOD's proposals would actually affect both
active and closed ranges. "We've identified over a dozen DOD
operational ranges on the National Priorities List," says an EPA
official speaking off the record. "One could argue that absent an
'imminent and substantial danger' finding, EPA would have no
jurisdiction under CERCLA to force those cleanups."
A broad range of critics--including the National Association of
Attorneys General and all major environmental organizations--also
oppose the proposed CAA extension, arguing that it would extend public
exposure to harmful air quality. Moreover, according to a 2004 fact
sheet on DOD CAA provisions prepared by staff of the House Committee on
Energy and Commerce, there is no evidence to suggest the CAA has ever
adversely affected military readiness.
Culture War?
In late October 2004, the DOD settled its Eagle River Flats
lawsuit. As part of the settlement, the agency agreed to a number of
key provisions, including--among others--that it obtain a Clean Water
Act permit for munitions discharges at the Flats, monitor water quality
in the area, promptly clean up munitions that fall outside the
immediate impact area, and work with outside experts to study the
environmental impacts of bombing.
<> But the DOD is still committed to its RRPI goals, which it
maintains are necessary in order to sustain military readiness. Why is
the agency seeking environmental exemptions in the face of such broadly
focused opposition? There is no easy answer. Some stakeholders suggest
a culture war is at play, pointing out that the DOD has never taken
kindly to environmental oversight, believing its national security
mission elevates it beyond such concerns. The EPA official says there
are many in the DOD itself who don't support the RRPI's proposals:
"They see it as being driven by operational guys, farther up the chain
of command."
The DOD is currently considering its legislative package for fiscal
year 2006. Whether the RRPI will be a part of that package is still
being considered in the Pentagon. The next opportunity for DOD
officials to present the proposal is likely to emerge when the Congress
turns to its next appropriations bill.Charles W. Schmidt