[CPEO-MEF] New, Revised RRPI/Exemptions proposal from the Defense Department

[Lenny Siegel <lsiegel@cpeo.org>]

[On April 7, 2005, the Defense Department submitted to both Houses of
Congress its proposed legislative language for the Defense Authorization
Act of 2006. The paragraphs below are the Department's explanation of
the latest incarnation of the Readiness and Range Preservation
Initiative, known to its opponents as the Exemptions legislation. I will
post the actual legislative language as separate messages. According to
the cover letters, the proposals have been cleared by the Office of
Management and Budget as representing a unified Executive Branch
position. - LS]



Sections 313 and 314 address application of the Clean Air Act, the Solid
Waste Disposal Act (SWDA) (also known as the Resource Conservation and
Recovery Act (RCRA)), and the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) to military readiness activities.

Air Quality: The section on air quality plans would clarify the
application of the conformity provisions of the Clean Air Act to avoid
unnecessarily restricting the flexibility of the Department of Defense
(DoD), state, and federal regulators to accommodate military readiness
into applicable air pollution control schemes. The section would
maintain DoD's obligation to conform its military readiness activities
to applicable State Implementation Plans, but would give DoD three years
to demonstrate conformity. Under the requirements of current law, it is
becoming increasingly difficult to base military aircraft near developed areas.

Range Management: Subsection (a)(1) would exclude military munitions,
including unexploded ordnance, and the constituents thereof from the
definition of "solid waste" under the SWDA when DoD deposits such items
on an operational range incident to normal use, and such items remain
thereon. Subsection (a)(2) provides that the exclusion in subsection
(a)(1) does not apply to certain listed activities or circumstances such
as traditional waste management activities like burial or land-filling,
migration off an operational range, or firing off range. Subsection
(a)(2) additionally provides that the exclusion in subsection (a)(1)
ceases to apply once the operational range on which the items were
deposited ceases to be an operational range. Subsection (a)(3)
explicitly preserves the authority of federal, state, interstate, and
local regulatory authorities to determine when, after an operational
range ceases to be an operational range, these items become a hazardous
waste subject to the Act.

Subsection (b)(1) would exclude from the definition of "release" under
CERCLA the presence of military munitions, including unexploded
ordnance, and the constituents thereof, that DoD deposited incidental to
normal use on an operational range and that remain thereon.

Subsection (b)(2) provides that the exclusion in subsection (b)(1) does
not apply to certain listed activities or circumstances, such as
migration off an operational range or firing off range. Subsection
(b)(2) additionally provides that the exclusion in subsection (b)(1)
ceases to apply once the operational range on which the items were
deposited ceases to be an operational range. Subsection (b)(3)
explicitly preserves the President's authority to address an imminent
and substantial endangerment to the public health, welfare, or the
environment under section 106(a) of CERCLA.

Subsection (c) provides definitions of terms, including incorporating by
reference terms already defined in title 10, United States Code.

Subsection (d) reaffirms that the exclusions set forth in subsections
(a)(1) and (b)(1) do not apply once the operational range ceases to be
an operational range. Subsection (e) reaffirms the DoD's authority to
protect the environment, safety, and health on operational ranges.

As noted above and reiterated in subsection (d), this section would have
no effect on the legal requirements applicable to military munitions,
including unexploded ordnance, or the constituents thereof, once the
range on which they were deposited ceases to be an operational range.
These provisions would restrict the application of certain authorities
under CERCLA and RCRA for covered munitions while those ranges remain
operational. Application of those same authorities when the range ceases
to be an operational range is not affected by these two provisions. Nor
would this section place any restriction on the applicability of the
Safe Drinking Water Act on or off of an operational range. Nothing in
this section affects a private party's right of action against the
United States or any of its agencies to recover costs expended in the
clean up of military munitions and unexploded ordnance, and the
constituents thereof, that are present on property formerly operated
(directly or through a contractor) or formerly owned by the United
States. 

-- 


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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