[CPEO-MEF] Thoughts on DOD's "Exemption" proposal

[Lenny Siegel <lsiegel@cpeo.org>]

Submitted by William Walsh <WALSHW@pepperlaw.com>. [Most, if not all of
the questions came from me. -LS]

The following is my preliminary interpretation of the DOD exemption
language (the "Exemption"), which is provided below so that the readers
can see the language being analyzed.  I do not represent any stakeholder
and have tried to be neutral.

The questions that we have tried to answer are: 

Question 1.  Has DOD finally made it clear that the Exemption does not
apply to ranges, which are not operational or are no longer operational?

Answer 1.  Yes, but see the answer to Question 2.

Question 2.  Does the Exemption make it clear that the munitions and
constituents left on non-operational ranges are hazardous wastes? In the
past the language has been convoluted because DOD has not wanted to make
this concession, even as DOD asserted that it was not the subject of the
legislation. 

Answer 2.  Yes.

The first trigger for being regulated by RCRA as a hazardous waste is to
fit within the definition of solid waste.  The Exemption excludes from
the definition of solid waste munitions and constituents thereof that
are on an operational range.  The Exemption makes it clear that it does
not change the current definition of munitions as regulated by RCRA.

Section 314(a)(2) states that the Exemption does not apply if the
munition is "recovered, collected, and then disposed of by burial or
landfilling;" has "migrated off an operational range;" has "come to be
located off of an operational range; or remain on the range once the
range ceases to be an operational range."

However, the term "operational range" means a military range that is
used for range activities, or a military range that is not currently
being used, but that is still considered by the Secretary to be a range
area, is under the jurisdiction, custody, or control of the Department
of Defense, and has not been put to a new use that is incompatible with
range activities.  10 U.S.C. § 2710(e)(5).  Thus, DOD could designate a
range that is, in fact, not operating as an operational range.

Question 3.  Who determines when a range is inactive versus closed? EPA
staff has identified a large number of obviously closed ranges on active
facilities, counted by DOD as inactive (a subset of operational).

Answer 3.  The Secretary of Defense.  As I read the statute, EPA has no
role in this determination.  Anybody who is concerned that this
determination might be overly broad could seek an amendment to the
definition to make it clear that this Exemption only applies to areas
that are necessary ancillary locations that might interfere with
training and which did not include an "imminent and substantial endangerment."

For example, the definition could be modified as follows: 

"operational range" means a military range that is used for range
activities, or a military range that is not currently being used, but
for which the Secretary has issued a record of decision determining that
such area: (i) is under the jurisdiction, custody, or control of the
Department of Defense, (ii) has not been put to a new use that is
incompatible with range activities, (iii) is not currently being used,
(iv) is so closely located with respect to an ongoing range or military
base that designation of such an area as a closed range would interfere
with the Secretary's efforts to maintain military preparedness, and (v)
which does not contain any condition that may be an imminent and
substantial endangerment pursuant to CERCLA, RCRA or the Safe Drinking
Water Act.  Such determination shall be subject to judicial review
pursuant to the Comprehensive Environmental Response, Liability and
Compensation Act 42 U.S.C. § 9613 (available at:
http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00009613----000-.html),
the Solid Waste Disposal Act. 42 U.S.C. 6972 and 6973 (available at:
http://www4.law.cornell.edu/uscode/search/display.html?terms=imminent%20and%20substantial%20endangerment&url=/uscode/html/uscode42/usc_sec_42_00006972----000-.html
and
http://www4.law.cornell.edu/uscode/search/display.html?terms=imminent%20and%20substantial%20endangerment&url=/uscode/html/uscode42/usc_sec_42_00006973----000-.html);
the Safe Drinking Water Act, 42 U.S.C. § 300j (available at: http://www4.law.cornell.edu/uscode/search/display.html?terms=imminent%20and%20substantial%20endangerment&url=/uscode/html/uscode42/usc_sec_42_00000300---i000-.html).

[You may need to cut and paste some of these URLs.]

Question 4.  When ordnance or its byproducts have released toxic
substances into the environment, even entirely within the operational
range, I believe environmental regulators should have the authority to
oversee the characterization and remediation of such risks. This
includes depleted uranium as well as explosives (RDX, HMX) and
propellants (perchlorate).

Answer 4.  As discussed in more detail below, EPA would have legal
authority pursuant to CERCLA to address "imminent and substantial
endangerments."  However, this is a limitation on existing authorities
and is limited to EPA.

Question 5.  When there is no effective restriction on public access to
operational ranges, I believe regulatory agencies should have the
authority to required fences, patrols, signs, and education, even where
they do not have the authority to clean up.

Answer 5.  The language in the Exemption makes it clear that under all
circumstances, the operation range must be under DOD control.  I do not
read the language as precluding control of the regulatory agencies.  If
that is DOD's intent, then clarifying language could be added (e.g.,
"Nothing herein shall limit or abrogate the authority of any federal or
state environmental agency to, if deemed necessary and consistent with
existing law, to impose engineering controls, institutional controls, or
other requirements to protect human health and the environment.")

Question 6.  Generally, what are the differences in this version of the
language from either existing law or prior Exemption proposals? 

Answer 6.  See Below

OVERVIEW

The latest DOD Exemption language is far better than the prior proposed
exemption language.  Some citizen groups may still reasonably object to
some provisions, however, the language is within striking distance of
compromise language that DOD and such citizen groups may be willing to
live with.

STAKEHOLDER INTERESTS

The DOD wants to be able to operate its existing bases without the
delays of the complex and sometimes dysfunctional environmental
permitting laws.  I personally believe that most of the DOD personnel
believe that they can do so without the environmental permits.  Thus,
the two big conceptual issues for DOD are to avoid having unexploded
ordinance determined to be a hazardous waste or a release subject to
CERCLA and to avoid having to demonstrate that the military bases
(particularly air bases) comply with the stringent air quality standards
of the Clean Air Act.  Although environmental compliance cost can
increase to the point that it would render compliance impracticable, I
believe that "ability to operate," rather than "cost," is the primary concern.

Citizen groups want assurances that the public living near military
bases is at least as safe as those living near industrial facilities. 
On its face, applying the same environmental laws to DOD and industrial
facilities seems to be the simplest, most straight-forward method of
achieving this end.  Thus, this Exemption seems, to some, to be aimed at
allowing the military to pollute more than private industry.

Regulators are obligated to protect the public.  Generally, their
interest is in having requirements that are enforceable and likely to
ensure the protection of the public.  Generally, regulators demand more
explanation and even more stringent requirements so that they can
provide the public with adequate assurance.  Also, regulators have
limited budgets, so they prefer approaches that minimize long-term
transaction costs to the regulatory agency involved.

MAJOR DIFFERENCES

The major conceptual differences between the existing law and the
proposed Exemption are: (1) the need for clarification that the
governments still maintain the authority to bring suit if there is an
imminent and substantial endangerment; (2) the limitation on citizen
provisions; and (3) the changes to the Clean Air Act would provide a
delay in implementation of certain provisions for up to three years.

There may be amendments that could be proposed to the DOD Exemption
language that would allow DOD to avoid applications of existing
environmental statutes to DOD operations that would ensure that the
continued operation of DOD ranges, yet ensure that they are operated in
a manner that is protective of human health and the environment
(including the Clean Air Act Conformity requirements).

Imminent and Substantial Endangerment and Citizen Suit Provision

This language appears to preserve EPA's right to bring an "imminent and
substantial endangerment" action pursuant to CERCLA against DOD for
munitions, even though it has been exempted from the definition of release.

However, the changes to RCRA would prevent the federal and state
regulators and citizens from bringing an imminent and substance
endangerment action pursuant to RCRA for "military munitions, including
unexploded ordnances, or the constituents thereof, that are excluded
from the definition of solid waste by" the Exemption.  As a result,
local citizens, states, and local government could not use the RCRA
imminent and substantial endangerment provision.

There is a slightly higher burden for an "imminent and substantial
endangerment" than a release or threatened release of a hazardous
substance pursuant to Superfund.  However, EPA and the court have so
broadly interpreted "imminent and substantial endangerment" that it is
not a major issue.  See EPA, Guidance on the Use of Imminent and
Substantial Endangerment Provision of RCRA (1997), available at: http://www.epa.gov/Compliance/resources/policies/cleanup/rcra/971020.pdf.

The discussion of the Exemption language provided by DOD states that:
"[n]othing 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."

This does not, in my reading, refer to the statutory "imminent and
substantial endangerment provisions."   Rather this language is simply a
statement that, if there is an existing common law remedy under state or
federal law, the Exemption does not change those rights.  Furthermore,
if a private party has a right to sue the United States pursuant to
CERCLA for any response costs that the private party has expended, this
provision does not limit that right to recovery those costs.  This gives
the public some rights, but not the right to injunctive relief.  Thus,
this change would significantly limit the public's right to bring
actions if an imminent and substantial endangerment exists and neither
EPA nor a state is taking action.

Thus, the policy issue is whether, given the federal government's
historical track record, it is acceptable to have only the federal
government able to protect the public from imminent and substantial
endangerments.  Some citizen groups may demand some right of action by
states, local governments, and/or citizens.

The question is what to do if DOD blunders (by creating a dangerous
situation) and EPA (which is part of the same Administration) either has
limited resources or a policy of not pursuing federal actions.

It would be fair to say that, although DOD may not be guilty of all of
the terrible actions alleged by every citizen group, there have been
situations where DOD's initial response was not exemplar and may not
even have been acceptable. The number of lawsuits filed against DOD,
although clearly a resource drain, has not been numerous.  In fact, in
most cases, DOD has prevailed because the claims have been exaggerated. 
So, it may be possible to argue to Congress that now is not the time to
take away from local residents the right to protect their own interests.

Are Chemical Warfare Materiel Exempted or Regulated Pursuant to The
Exemption Language

The question is whether the Exemption language removes from RCRA
regulation discarded or unexploded chemical agent materiel (Stockpile
and Non-stockpile materiel), and whether they are still covered pursuant
to the imminent and substantial endangerment provisions.  This question
needs to be answered in series of steps.

If the rationale for the Exemption is to permit training of soldiers
without undue disruption, chemical warfare materiel should not be exempt
since the military does not now train with live chemical weapons.  It
would also not aid training of soldiers to expose them to an imminent
and substantial endangerment from the discarded weapons.  This, however,
does not address what the proposed Exemption language does.

The Exemption uses the term "military munitions" in its normal statutory
meaning.  That meaning includes "chemical and riot control agents,"
"smokes," "chemical warfare agents," and "chemical munitions."  10
U.S.C. § 2710(e)(3)(A).

In addition, "'munitions constituents' means any materials originating
from unexploded ordnance, discarded military munitions, or other
military munitions, including explosive and non-explosive materials, and
emission, degradation, or breakdown elements of such ordnance or
munitions."  10 U.S.C. § 2710(e)(4).

Therefore, the Exemption would remove such munitions (including chemical
weapons) from RCRA regulation. Since the States may regulated more
stringently than EPA, however, it would not remove such munitions from
State regulation.  Therefore, instead of having a federal rule that
would provide a minimum point of departure for requirements from which
the states might depart if appropriate, there would be no federal
requirement in any of the 50 states.  My own view is that this would
make operations more difficult for the Army.  If there was a federal
rule and it pre-empted the state requirements, and perhaps limited it to
certain circumstances, there would be a set of requirements that were
designed to protect the public.

>From what I have read, the Army's rationale for excluding all munitions
(even CWM) from additional requirements similar to or identical to
hazardous waste requirements is unclear.  Under RCRA, the hazardous
waste disposal rules do not apply to buried waste (i.e., in this case,
buried CWM).  Only when the munition is generated by removal from the
ground would it be covered by the RCRA rules.  Even then, rules such as
the corrective action management rule allow flexibility. 

Conformity to the Clean Air Act

Section 313 provides that DOD cannot be prevented from performing a
readiness activity (i.e., it cannot be prohibited from doing its "job")
in any situation where its operations would not conform to the
requirements of the Clean Air Act.  It also provides for an up to
three-year extension of compliance with the concurrence of the State. 
The definition of military readiness activity seems narrow and appropriate.

Further, the Exemption allows the states to treat a nonattainment area
as if it is in attainment of the National Air Quality Standards for
ozone, carbon monoxide and PM10, but only if the reason for
nonattainment is a DOD facility's emissions.

Is There An Alternative to Strict Adherence to Existing Environmental Statutes?

DOD's Exemption starts with definitions and requires a determination
and/or debate as to the implications of those definitions.  Another way
of addressing the same set of issues would be to create a table of the
decisions/requirements that need to be made, and then determine who
should have the final say in making each of them.

Once that is settled, the language of the law, including definitions,
could be massaged to accomplish that determination.

There are various methods (other than using RCRA or the Clean Air Act)
to develop requirements applicable to the military range material that
avoids the long process of EPA or state regulation.  Whether these
alternatives are acceptable to the stakeholders is unknown.  A few
(non-exclusive) options are very briefly highlighted below.

First, the statute could specify that consensus standards developed by
some neutral group could satisfy the federal regulatory requirement. 
Such consensus standard would need to be developed with input from all stakeholders.

For example, the Clean Water Act Amendments of 1996 requires the use of
lead free water faucets in the US.  The statute specified that EPA
should review the National Sanitation Foundation International consensus
standard for lead-free, and that standard would satisfy the statutory
requirement if EPA found that it was protective of human health.

Second, the statute could pre-empt more stringent state requirements,
but provide a specific role for the states in developing EPA's proposed
rule.  The requirements could be imposed as a permit-by-rule, rather
than a case-by-case rule.

Third, as with the chemical weapons destruction program, the DOD Safety
office(s) could be required to draft a set of requirements, and some
federal health and safety group (e.g., EPA, OSHA, CDC, etc.) could
review and issue a final requirement.

Fourth, the existing requirements could remain, but the statute could
allow for a case-by-case Presidential exemption.

Fifth, the Exemption as proposed by DOD could remain, but the statute
could allow a case-by-case petition for rulemaking by states, local
governments, and/or citizens.

Sixth, in combination with the above, DOD could set up a dialogue with
Stakeholders (e.g., through a federal advisory committee).

I am sure that there are other alternatives.  Further, I suspect that if
others spent more time examining the language, they might have more
surgical approaches.

The proposed text of the Defense Department's proposed language to
modify the Clean Air Act, RCRA, and CERCLA is available at:
http://www.cpeo.org/lists/military/2005/msg00373.html and http://www.cpeo.org/lists/military/2005/msg00374.html.
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