[CPEO-MEF] Range Rule

[CPEO Moderator <cpeo@cpeo.org>]

[This was posted to the list by Vicky Peters,  
<vicky.peters@state.co.us>]

please post

May 18, 2000

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
750 FIRST STREET NE  SUITE 1100
WASHINGTON, DC   20002
(202) 326-6054
(202) 408-6999

CHRISTINE T. MILLIKEN	
Executive Director	
General Counsel	

CHRISTINE O. GREGOIRE
PRESIDENT
Attorney General of Washington 

PRESIDENT-ELECT
ANDREW KETTERER
Attorney General of Maine

VICE PRESIDENT
CARLA J. STOVALL
Attorney General of Kansas

IMMEDIATE PAST PRESIDENT
MIKE MOORE	
Attorney General of Mississippi


Jacob J. Lew, Director
Office of Management and Budget 
Old Executive Office Building, Room 252
17th Street and Pennsylvania Avenue, NW
Washington, D.C. 20503

Dear Director Lew:

We, the undersigned Attorneys General, understand the Department of 
Defense recently submitted to OMB proposed language for a final rule 
("the range rule") governing response actions at closed, transferred, 
and transferring military ranges that may contain unexploded ordnance 
("UXO").  We have serious concerns with the proposed final rule.  In 
short, we believe that the proposal contravenes Congressional intent 
that the States and the Environmental Protection Agency should share 
regulatory authority over cleanup of UXO, and that DOD does not have the 
statutory authority to promulgate the range rule.  Further, we 
understand that the rule does not contain adequate standards to protect 
human health and the environment.  This lack of standards, combined with 
DOD's track record in responding to UXO contamination, persuades us that 
the proposed rule will not adequately protect human health and the 
environment. 

There is no accurate inventory of former military ranges that may 
contain UXO, but they likely number in the thousands.  Many of these 
ranges are located on military bases that are being transferred to 
private ownership as part of the base closure process.  Others, already 
in private ownership, face increasing development pressures.  
Consequently, potential public exposure to the UXO hazards present on 
these ranges is rapidly increasing.  The increasing threat to the public 
from UXO heightens both our concerns with DOD's proposed rule, and the 
need for state oversight.
  
In 1992, Congress passed the Federal Facility Compliance Act.  Section 
107 of the Act (codified at 42 U.S.C. § 6924(y)) directed the 
Administrator of the Environmental Protection Agency, after consultation 
with the States and with the Secretary of Defense, to promulgate 
regulations defining when military munitions become hazardous waste 
under the Resource Conservation and Recovery Act ("RCRA"), and 
prescribing safe storage and transportation requirements for such waste. 
 In adopting section 107 of the Act, the Conference Committee rejected a 
provision in the Senate version of the bill that would have authorized 
the Secretary of Defense to promulgate regulations governing the safe 
development, handling, use, transportation, and disposal of military 
munitions.  This legislative history clearly demonstrates that Congress 
intended that states and EPA, rather than DOD, should regulate 
management of waste munitions.  

Director Jack Lew
May 18, 2000
Page Two

In 1997, pursuant to section 107 of the Act, EPA promulgated a rule 
defining various circumstances under which military munitions were 
considered hazardous waste.  In that rule, EPA postponed making a final 
decision to regulate military munitions left on closed or transferred 
ranges, in part because DOD was proposing to draft a range rule, and EPA 
wanted to evaluate DOD's rule to determine whether it adequately 
protected human health and the environment.  In light of the legislative 
history described above, the decision to defer EPA regulation of 
munitions on ranges in favor of DOD regulation flies in the face of 
Congressional intent.  It also undermines the Congressional goal of 
independent state oversight of UXO cleanups, and could set the stage for 
significant federal-state conflicts.  

Furthermore, as many states noted in commenting on the draft range rule, 
DOD does not have statutory authority to promulgate such a rule.  
Executive Order 12580 expressly gives EPA, not DOD, "lead agency" 
authority to oversee cleanups at sites no longer under DOD's 
jurisdiction, authority or control, and also gives EPA exclusive 
authority to promulgate rules affecting such sites.  Nor does the 
Defense Environmental Restoration Program ("DERP") authorize DOD to 
promulgate such regulations.  DERP merely makes DOD responsible to carry 
out the cleanup of UXO.

In addition to these legal flaws, the range rule simply does not 
adequately protect human health and the environment.  Our understanding 
is that the rule itself sets no substantive criteria or standards for 
investigating or remediating UXO sites; instead, it is largely 
procedural.  EPA has expressed concerns that the rule relies heavily on 
the concept of "technical impracticability" to excuse a decision not to 
remediate UXO.  In practice, DOD continues to rely on statistical 
characterization and risk assessment models that do not protect human 
health and the environment.  Although we understand that these models 
are not expressly incorporated into the proposed range rule, they are in 
fact the heart of DOD's UXO cleanup program.  Experience with these 
models at the Lowry Bombing Range in Colorado, Ft. Ord in California, 
and other sites across the country amply demonstrates their 
shortcomings.  DOD's characterization methodology routinely concludes 
that contaminated sites are clean, and the risk methodology plays a 
numbers game to manipulate clearly unacceptable levels of UXO 
contamination so that they fall within EPA's risk range.

Promulgating the range rule will lead to protracted litigation and 
lengthy delays in responding to a serious and widespread environmental 
problem looming on the horizon.  Because the proposed range rule lacks 
legal authority, conflicts with Congressional intent, and fails to 
protect human health and the environment, we urge you to disapprove this 
fundamentally flawed rule.  Instead, we urge you to direct EPA to 
consult with the states and with DOD in promulgating regulations under 
RCRA to govern cleanup of UXO at closed, transferred, and transferring 
ranges, as we believe Congress intended when it passed the Federal 
Facility Compliance Act in 1992.  Thank you for considering our views.

Director Jack Lew
May 18, 2000
Page Three

Sincerely,

Attorney General Bruce M. Botelho		
Attorney General of Alaska		

Attorney General Janet Napolitano
Attorney General of Arizona

Attorney General Bill Lockyer		
Attorney General of California	

Attorney General Richard Blumenthal
Attorney General of Connecticut

Attorney General John F. Tarantino		
Attorney General of Guam		

Attorney General Earl Anzai
Attorney General of Hawaii

Attorney General Tom Reilly		
Attorney General of Massachusetts		

Attorney General Jennifer Granholm
Attorney General of Michigan

Attorney General Jeremiah W. Nixon		
Attorney General of Missouri		

Attorney General Joseph P. Mazurek
Attorney General of Montana

Attorney General Frankie Sue Del Papa	
Attorney General of Nevada		

Attorney General John J Farmer, Jr.
Attorney General of New Jersey

Attorney General Eliot Spitzer		
Attorney General of New York		

Attorney General Heidi Heitkamp
Attorney General of North Dakota

Director Jack Lew
May 18, 2000
Page Four

Attorney General W. A. Drew Edmondson	
Attorney General of Oklahoma		

Attorney General Hardy Myers
Attorney General of Oregon

Attorney General Angel E. Rotger Sabat	
Attorney General of Puerto Rico		

Attorney General Mark Barnett
Attorney General of South Dakota

Attorney General Jan Graham		
Attorney General of Utah		

Attorney General Iver A. Stridiron
Attorney General of the Virgin Islands

Attorney General Christine O. Gregoire
Attorney General of Washington
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