[CPEO-MEF] Draft Instruction on Operational Range Assessments

[Lenny Siegel <lsiegel@cpeo.org>]

On November 16, 2004, the Department of Defense issued a draft
Instruction on Operational Range Assessments, and it has just become
available outside the Department. While the Instruction contains
practical guidance for Defense organizations responsible for range
management, it is fatally flawed because it attempts to establish, by
policy, a legal principle that Congress has rejected for the past three years.

In essence, the draft Instruction explains how to address "a release or
a substantial threat of a release of munitions constituents of concern
from an operational range or range complex to an off-range area." That
is, perchlorate, RDX, or other toxic energetic contamination on a
military training or testing range is considered a problem only at the
point that it leaves the range. It is a problem at that point, but often
it is a problem long before it approaches range boundaries.

The Instruction is based upon the May 10, 2004 version of DoD Directive
4715.11, "Environmental and Explosives Safety Management on Operational
Ranges Within the United States." As I wrote in June 2004, Section
5.4.15 of the [revised] Directive contains the substance of the change
from the original, August 17, 1999 version: "5.4.15. Where prior
hydrologic and hydrogeologic assessments create a reasonable belief that
munitions constituents may migrate off an operational range, conduct an
additional, appropriate assessment, including testing and analysis, as
necessary, to determine whether a release or substantial threat of a
release of munitions constituents from an operational range to off-range
areas has occurred or is about to occur."

The following expands upon my critique of that May 2004 Directive:

1. To prevent permanent environmental damage, it's generally necessary
to assess and sometimes it's necessary to remediate hazardous substances
once they have been released, even if they are not likely to cross
property boundaries. A number of states, including California, have
statutory non-degradation policies. Groundwater contamination must be
addressed even when there are no current human or ecological receptors.

2. Most environmental investigations seek to identify and remediate
source areas, but this policy would allow contamination to spread over
large range areas, making it much more difficult to address later. Data
from former ranges suggests that disposal (open burning/open detonation)
areas within larger ranges are frequently the sources of the greatest
concentrations of toxic contaminants on those ranges, yet the Directive
and Instruction suggest that such areas may be ignored unless there is
evidence of off-facility migration, and even then it's not clear whether
sampling at the likely source will be required.

3. Also, with the prospect of ranges being closed in the future,
uncontrolled pollution could make property transfers, or even new uses
by the military - such as military family housing - difficult. The
report of the National Policy Dialogue on Military Munitions, which
provided the basis for the original Directive 4715.11, listed as one of
the four purposes of sustainable range management: "To facilitate the
return of ranges to other uses when the military no longer requires
their use." That goal appears to have been abandoned.

4. By directing the same policy for inactive ranges and buffer zones as
for live impact areas, the directive goes beyond what the Defense
Department claims its readiness needs are. Historically, regulatory
agencies have bent over backwards to allow the military to continue
using active ranges requiring environmental investigations, but even if
one were concerned about such situations, there is absolutely no need
for the Department to attempt to prevent environmental investigations
outside of areas where active training or testing is taking place.

Clearly, in designing strategies for range assessment, the Pentagon's
lawyers have prevailed over the military's environmental specialists.
The Directive, Instructions, and the Prioritization Protocol for
Perchlorate that the Defense Department negotiated with California in
August 2004 all presume that environmental regulators have no say over
toxic contamination on operational - that is, active and inactive -
military ranges. Yet the law says otherwise. That's why, for three
straight years, the Defense Department has sought changes in CERCLA
(Comprehensive Environmental Response, Compensation, and Liability Act,
or "Superfund") and RCRA (the Resource Conservation and Recovery Act.
Yet Congress, while enacting other rollbacks in environmental laws in
the name of military readiness, has repeatedly found that the protection
of the nation's water and other resources from range contamination does
not interfere with military training and testing. That is, it has NOT
taken steps to limit environmental oversight at ranges to known off-sire migration.

The Defense Department has said it will ask again for changes in CERCLA
and RCRA, but unless Congress does its bidding the limitations in the
Operational Range Assessments Instruction will not only be technically
indefensible but will also remain out of compliance with established
environmental law.


-- 


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
_______________________________________________
Military mailing list
Military@list.cpeo.org
http://www.cpeo.org/mailman/listinfo/military