presentation by Lenny Siegel
Executive Director, Center for Public Environmental Oversight
before the California Department of Toxic Substances Control
public workshop of the Cleanup of Unexploded Ordnance
April 6, 2000

There is no authoritative compilation, in California or elsewhere, of injuries resulting from public contact with UXO. Furthermore, only recently, and infrequently, have the military and regulatory agencies begun looking for toxic releases resulting from the use and burial of munitions. Consequently, our knowledge of the risks is limited, but I believe that contact-and thus injury, disease, and even death-is likely to increase as more military facilities close and development moves into formerly remote areas.

Since the 1983 death of two boys in San Diego from the explosion of an old artillery shell, the Defense Department has gradually developed the capacity to characterize and respond to the risks posed by ordnance and explosive wastes. Since munitions were firmly placed on the regulatory radar screen in 1992 with the passage of the Federal Facilities Compliance Act, state, tribal, and federal environmental agencies, as well as non-governmental organizations, have devoted increasing resources to understanding how to deal with UXO and related environmental hazards. As overall awareness has grown, key leaders in the Pentagon have made a commitment to developing the processes, technologies, funding strategies, and partnerships necessary to addressing the UXO problem.

States such as California, with major UXO and explosive waste problems, must step up to the plate. UXO risk management is not a core competency of the military, and resources devoted to UXO response compete not only with the military's mission, but with other environmental priorities. More important, as the polluter, the military should not be afforded the opportunity to "regulate" itself.

In the ongoing debates on UXO oversight, the Pentagon often argues that its unique explosives safety expertise makes it the logical ultimate authority for making response decisions. However, explosive ordnance disposal (EOD) capability is only one of several areas of expertise required to address ordnance risk. In fact, some of the shortcomings of existing programs and technologies derive from over-reliance on that expertise.

Regulatory agencies also have some, but not all the expertise required to manage UXO risks. It's important that regulators fill in their knowledge gaps on explosive risks just as they have with other forms of contamination. The key point is that environmental risk management, including protecting the public from UXO explosions and explosive waste, is a central element of the regulatory mission. To accomplish that mission effectively, regulators must be trained to understand not only explosives safety, but the geophysics of range characterization, the fate and transport of UXO and explosive wastes, and the evolving legal authorities governing UXO response.

State oversight is not only important on a site-by-site basis, but it is essential if the Defense Department is to request and Congress is to appropriate adequate funds to remediate UXO-contaminated property, as well as to develop more effective and efficient technologies. In 1998 the Defense Science Board Task Force on Unexploded Ordnance, of which I was a member, estimated that making former domestic ranges safe could cost the nation over $15 billion. At the current rate of expenditure, this could take more than a hundred years.

I believe that the state of California-indeed any state with significant ordnance contamination-needs a comprehensive policy framework for managing the safety, health, and environmental risks associated with unexploded ordnance and explosive wastes. By comprehensive, I means that there should be a single document that guides state regulatory officials who are faced with UXO, not only on closed, transferred, and transferring ranges, but at disposal sites, active ranges, and anywhere else that these hazards are found. The state policy should definitively explain which, if any, regulatory authority applies at each type of site, when, and how.

1. At active and "inactive" ranges, California must develop its own position as to when it can assert regulatory authority to manage both explosive and toxic risks to its residents. The absence of such clear regulatory authority led to US EPA's ad hoc invocation of the Safe Drinking Water Act at the Massachusetts Military Reservation. I am not against the Massachusetts order, but it's fairly clear that the Defense Department did not initially expect that to be the vehicle of regulator involvement. The state should determine up front, without waiting for a crisis, how it will address threats to groundwater believed to be caused by UXO or ordnance use. I believe that state has the obligation to protect its residents and environment from the hazards of ordnance and explosive wastes, even when associated with military training and testing, but it should not interfere with military activities when there is no threat.

2. For closed, transferred, and transferring ranges, the state needs to develop a position vis a vis the Principles negotiated between the Defense Department and U.S. EPA as well as the proposed Range Rule. Both documents provide a valuable basis for overseeing response action at ranges, but they do not necessarily offer a dispute resolution system adequate for public protection. In general, state governors should hold the same shared final authority-with the Defense Department-as provided in the model Defense State Memorandum of Agreement governing cleanups in general.

The draft Final Range Rule is currently undergoing review at the White House's Office of Management and the Budget (OMB). California and other states should let OMB know the importance of state regulatory authority in this area. And the states should make clear that they will use their own hazardous waste laws to protect the public if the Range Rule does not recognize state authority.

3. Whichever regulatory authority is used, the state should adopt a risk methodology. I believe that the qualitative Interim Range Rule Risk Methodology, developed by the Defense Department in consultation with a partnering team of external stakeholders-including myself-is an excellent place to start. The R3M, as it is known, is based upon the National Contingency Plan (NCP). It basically calls for simultaneous weighing of proposed remedial responses according to both explosive and toxic risks. It contains data quality objectives, feedback loops, and recurring opportunities for public participation. It appears to cover all the factors that should be evaluated in rating both risk and the suitability of remedial response.

However, I find the R3M's prescriptive algorithms for combining factors to be too rigid and too unproven for implementation as is. The Army is making a good faith effort to refine those decision tools, but I am skeptical that it can come up with credible mechanisms for mathematically combining factors within the timeframe necessary to expand the UXO response program.

Instead, the various factors should be weighed and combined using professional judgment. This is the way the NCP works now. Proponents of the prescriptive algorithms say that they will bring consistency, but the brief R3M Validation exercise conducted last December suggests that the approach not only does not promise national consistency, but that different decision-making teams using the R3M may come up with different action plans at the same site.

That is, the R3M contains many of the elements required for UXO risk management, but it is still too complicated to understand, too cumbersome to use, and too complex to fine tune.

4. UXO responses should be based upon a hierarchy-clearance, land use controls, access controls, and education-similar to the preference for treatment built into our hazardous waste laws. The risk management framework, discussed above, should yield results compatible with that hierarchy.

That is, if it's feasible, the primary response should be to clear unexploded ordnance from any piece of property. Until removal or destruction occurs, if elimination is not practical, or because it is impossible to verify complete clearance, the second level of defense should be restrictions on use, particularly excavation, that might bring people into contact with buried UXO. Since clearance and use restrictions usually do not make property reliably safe, then it's essential to restrict access. Finally, because access controls are also imperfect, it's essential to educate potential receptors to report, not disturb, UXO should they encounter it.

A. Clearance. Characterization technologies, which form the heart of clearance, are a combination of sensor and analytic technologies. They are generally evaluated on two metrics: their probability of detection and false anomaly rate. For each technology both probability of detection and the false anomaly rate depend upon many site-specific factors, including penetration depth, ordnance size, soil content, and vegetative cover. The best approach to characterization usually entails multiple, independent sensors and digital recording and processing.

Because UXO incidents imply a retroactive causal certainty, public stakeholders tend to insist upon 100% detection. In fact, they usually seek detection and removal of all UXO, not matter how deeply buried, if that can be accomplished without significant ecological disruption. Where deep clearance adds only marginally to the cost, as evidenced as Fort Ord, for example, then it should be carried out regardless of the planned land use.

While 100% reliable detection is approachable at or near the surface, it remains a distant goal for the location of subsurface ordnance, whether placed underground for "disposal," covered through the grading of property, or buried as a result of its initial trajectory.

Most sensors now in use indicate large numbers of false anomalies, which include rocks with high iron content, human artifacts, and ordnance scrap. Historic clearance practices require the removal of all such anomalies, often boosting costs and time by an order or magnitude, and frequently requiring significant environmental disruption or destruction.

Since the effectiveness and reliability of detection technologies are site-dependent, there is no single best technology. Rather, decision-makers must weigh each approach at each site. More often than not, detection will require more than one type of sensor. Ideally, the sensors should be "orthogonal," or independent. That, a metal-detecting device, such as an array of electromagnetic induction sensors, should be coupled with as yet perfected acoustic or even aromatic sensors. The coupling of sensors should increase the probability of detection while improving the discrimination necessary to reduce the excavation of false anomalies.

In most cases beyond visual surface clearance, anomalies should be recorded digitally using precise navigational signals such as differential GPS. Digital recording has several advantages: 1) Post-processing can match signals against a library of UXO and other signals, limiting the number of excavations to those anomalies most likely to represent UXO. 2) Information from multiple sweeps, under different conditions, can easily be combined. 3) Sensors can be transported around vegetation and small structures, with digital analysis compensating for the indirect paths. 4) Densities and depths can be calculated to optimize use and access controls. 5) Teams can return to conduct additional characterization, analysis, or removal months or even years later.

Some of the technologies necessary to detect UXO reliably exist today. Others are on the near horizon. Yet more are still undergoing basic research. In many cases, it still makes sense to act immediately to limit imminent risks-through surface clearance as well as use and access controls-but to delay efforts to clear property completely until new technologies are proven. This phased approach requires, however, that the Department of Defense commit, subject to regulatory enforcement, both to developing those new technologies and to returning to employ them once they are available.

B. Land Use Controls. To the degree that UXO is contained on a property, either before or after clearance, the goal of risk management should be to prevent either physical or visual contact. Physical contact is important because that's usually what triggers explosions. Visual contact is important because UXO is an attractive nuisance. If a hiker or a child sees a bomb or shell across a field, chances are he will approach it and possibly even touch it or pick it up.

It is possible to create formulas that attempt to quantity the number of contact with UXO on a property, based upon factors such as the area, number or receptors, hours of use, etc., but any such effort piles uncertainty upon uncertainty. Instead, I think it is much more sensible to design use and access controls to prevent any contact.

Land use controls work by restricting excavation or other activities that may expose UXO or bring people into contact with buried ordnance. There are many possible mechanisms for restricting such activity, including zoning and deed restrictions. Since each mechanism has its limitation, it's best to combine controls. That is, for each property there should be land use control enforcement tools available to environmental regulators, the local land use planning jurisdiction, insurance companies, original property owners-the military or its assignees-and the public.

Though land use controls are often described by general use categories-residential, recreational, commercial, industrial, agricultural, infrastructure, etc.-those categories are too vague to be protective. Excavation is possible on any type of property. Activities, therefore, should be constrained, instead, because they are likely to put people or machinery into contact with UXO. Instead of imposing a general use category, zoning and proprietary restrictions should specifically outlaw excavation to specified depths, unless qualified UXO technicians are present to provide construction support.

Ideally, land use controls should be enforced in two, complementary ways:

1. Regular review. Responsible officials should periodically review the property to ensure that no activity violates land use restrictions. This should occur much more frequently than the five-year review-perhaps quarterly.

2. Trigger mechanisms. Requests for building permits or one-call inquiries (for utility trenching etc.) should flag a warning, to be followed up by responsible officials.

In developing use controls, decision-makers should also evaluate site-specific geophysical processes-such as freeze-thaw, tidal action, percolation, or erosion-that could bring people or machinery into contact with initially buried UXO. Regular review should include the monitoring of erosion and UXO migration.

C. Access Controls. Prior to clearance, during clearance, or even after all active remediation is complete, it may be necessary to protect the public by directly preventing contact with exposed or near-surface UXO. Access controls are particularly important on undeveloped property where recreational activities-hiking, biking, camping, horseback riding, boating, etc.-occur. If geophysical processes are likely at the site, then deeper ordnance is a cause for concern. At a minimum, access controls include signs and fences. Those should be checked periodically-perhaps quarterly-for their integrity.

In most cases-whether or not there are fences and signs-active patrolling is the most effective form of access control. That's what has kept people off of active bases. Ideally, patrolling can be carried out by law enforcement officials, park rangers, or others responsible for the new use. In many cases, patrolling should be accompanied with clear criminal penalties to discourage trespassing in dangerous areas. Patrol staff should also monitor the integrity of signs and fences. Where UXO is found on islands or coastlines, boat patrols may be necessary.

There is not a great body of knowledge on how well access controls are likely to work, so community input in critical in planning them.

D. Education. Whether or not clearance, land use controls, and access controls are carried out effectively, education is an essential risk management tool. However, as the response at the bottom the UXO risk management hierarchy, it should never substitute for the other approaches. Educational programs should be designed to discourage people from entering dangerous areas and to warn people not to touch or even approach suspicious objects. These can include displays at trailheads, videos and comic books for kids, brochures, etc. As with access controls, no single educational approach works best everywhere. So again, the local community should play a key role in devising it.

5. Finally, UXO cleanup should be integrated with the cleanup and control of toxic substances. Virtually every form of explosive, explosive byproducts, small arms, and often range targets contain hazardous substances. In addition, other hazardous wastes may be found in the vicinity of UXO. Yet until recently, sampling for soil and groundwater contamination at UXO sites was rare.

Each UXO site should be treated as a potential toxic contamination site. Sampling should be required to determine if explosive chemicals, heavy metals, or other hazardous wastes are present in potentially hazardous concentrations. The condition of UXO should be evaluated to predict releases from future corrosion.

Conducting such sampling and analysis in the midst of UXO is complicated and sometimes dangerous. There have reports of UXO technicians and hazardous materials response teams, both under contract with the armed services, arguing about who should work a site first. The state should work with the military to develop a protocol to govern the coordination of explosive and toxic responses.

The state should also work with the armed services to regulate the range detonation of UXO. Such detonations generate disruptive noise as well as toxic pollution. While EOD specialists should determine whether it's safe to move UXO, regulators should have the authority to require containment, whether or not the ordnance is moved, or other forms of disposal, if indeed the EOD personnel determine that UXO is safe to transport.

In summary, the cleanup of UXO is a massive, difficult challenge. My presentation today only scratches the surface of issues to be resolved. I believe that all parties-the military, as well as regulators, local government, industry, UXO workers, academia, and public stakeholders-are prepared to continue working together to build a system to protect the public cost effectively and reliably wherever UXO is found. For this system to work, however, it is essential that elected officials in Washington, DC recognize the nature and scope of the challenge, focus more resources immediately on the development of clearance technologies, and indicate a willingness to fund a well structured cleanup program until these lands are rendered safe.

Lenny Siegel is the Executive Director of the Center for Public Environmental Oversight., a program of the San Francisco Urban Institute, San Francisco State University. He is a member of the National Dialogue on Military Munitions and the Range Rule Risk Methodology Partnering Team. He served on the Range Rule Partnering Team, the Munitions Rule Partnering Team, and the Defense Science Board Task Force on Unexploded Ordnance.