EPA's DRAFT MUNITIONS RULE

[Lenny Siegel <lsiegel@igc.org>]

[NOTE: THIS IS A LONG FILE]

EPA Circulates Draft Munitions Rule

Lenny Siegel
July, 1995

Pursuant to the Federal Facilities Compliance Act of 1992, the U.S. 
Environmental Protection Agency is circulating a draft rule defining 
when military munitions become a hazardous waste. EPA has already 
received comments from the Defense Department, other federal 
agencies, and several state regulatory agencies. It expects to publish a 
revised version as a proposed rule in the Federal Register late this 
October.

The draft rule embodies improvements over historic regulatory 
practice, but it falls short in certain areas. The Defense Department, 
however, thinks it goes to far. It is likely, therefore, that the release of 
the proposed rule will trigger intense political debate. Impacted 
communities must engage in this debate as soon as possible, or they 
will be left unprotected from significant threats to their health and 
environment.

Citizens are concerned about the environmental hazards of munitions 
for several reasons. Most notably, the historic practice of disposal 
through open burning, open detonation, or even incineration releases 
significant quantities of toxic substances into the air, land, waterways, 
and groundwater. The training of troops to dispose of surplus 
propellant and munitions, through open burning and detonation, also 
releases hazardous wastes. 

Furthermore, existing law appears to give the military discretion as to 
whether and when to remediate impact ranges. Vast quantities of 
American real estate lie contaminated with unexploded munitions and 
explosive wastes, yet the armed services don't want outside agencies 
to participate in the decision-making over waste characterization and 
cleanup. Range clearance, particularly for unrestricted use, is 
extremely expensive, and Congress appears unwilling to provide 
adequate funds. Consequently, large portions of closing and closed 
bases are being fenced off and being called "wildlife refuges."

The military, on the other hand, feels that it has the will and 
demonstrated capacity to protect its own people from explosive 
hazards. Its explosive ordnance disposal specialists, when called into 
emergency situations, don't want to be encumbered with red tape. 
And of course, the Defense Department's newly acquired 
environmental consciousness hasn't reached all of its operational 
units.

Perhaps most important, the military understands that its mission - 
preparing for and carrying out war - is intrinsically in conflict with full 
protection for the environment. The logical extension of strong 
environmental standards could restrict its ability to do its job.

In this report I analyze what I consider the most important issues 
raised by EPA's draft rule. This is by no means a complete analysis. 
By its nature, the rulemaking process covers technical issues beyond 
the concern of most citizens and definitely beyond my expertise, 
particularly when raised in the context of other statutes and 
regulations. Nor are my comments are final. I am putting this report 
out in the hope I will receive feedback before I send official comments 
to EPA.

I also wish to make it clear that these are my personal interpretations. 
Though I have in the past represented other organizations, such as the 
Military Toxics Project, on these issues, the views expressed below 
are strictly my own.

1. Burning

In its draft rule, EPA proposes to consider military munitions to be 
discarded material when the munition is i) treated or disposed of; ii) 
"removed from storage in a military magazine or storage area for the 
purpose of disposal or treatment prior to disposal; iii) "deteriorated or 
damaged... to the point that it cannot reasonably be recycled or used 
for other purposes"; or iv) the military says so.

EPA explicitly rejected the notion that placing a munition in an official 
demilitarization account "constitute[s] a decision to discard the 
material." Such munitions can be sold for other purposes, transferred 
to other countries, or even recalled into the stockpile. Furthermore, 
EPA concluded that regulatory agencies do not have sufficient 
expertise to determine whether munitions remain usable.

This approach would give the military the authority to store munitions 
indefinitely, but I don't think this is the major problem with waste 
munitions. At a time when many bases are closing, conventional 
munitions storage space is at a premium. The military has to dispose 
of munitions just to stay even. The U.S. military has stockpiled over 
5.6 million tons of conventional munitions, about 440,000 tons of 
which are listed in demilitarization accounts. (Of that, it has identified 
48,000 tons as waste.) It expects to place more than 600,000 tons 
more in the demil account over the next several years.

The real risk, in my opinion, is from unsafe disposal practices. Open 
burning, open detonation, and incineration all release hazardous 
substances into the air and onto the land. The military recognizes that 
burning is environmentally unsound, and it is working on alternative 
treatment and disposal technologies, as well as strategies for reuse and 
recycling, but it doesn't want regulatory agencies telling it to stop 
burning.

In fact, a rule that makes it difficult to store waste munitions, when 
combined with restrictions on land disposal, could conceivably force 
the military to rush more weapons to burn facilities before alternative 
destruction technologies are proven.

At many bases, military has obtained disposal permits that allow it to 
burn only that waste generated on site, but it circumvents the rules by 
importing munitions as products and declaring them waste only when 
they reach the disposal facility.

To its credit, EPA explicitly rejects that approach. Munitions 
designated for destruction would become wastes when they are 
removed from storage at the point of origin. It wants the military to 
seek site-specific permit modifications to dispose of off-site wastes. 
The military says the process or permit modification would be too 
costly, and that existing permit conditions governing the volume of 
waste should be adequate. The EPA does concede, however, that the 
military's continuing waste management operation may require interim 
authorization for the importation of waste while regulators consider, 
with full public participation, permit modification.

EPA also rejected the options of declaring the entire ammunition 
demilitarization account to be waste or having regulators, not the 
military, determine when munitions become unusable. Either of these 
approaches seems desirable to me, but I'm not sure how to make them 
work. Currently, some waste munitions are "recycled" by the mining 
or construction industry in a manner that still releases hazardous 
substances. Still, while it would be good to regulate such disposals 
directly, it may prove easier simply to restrict hazardous releases by 
regulating the eventual uses.

2. Cleanup of Former Ranges

In the draft rule, EPA seeks to clarify when regulators may require 
remedial or corrective action under hazardous waste laws. It "states 
that munitions left in place are discarded material when a range is 
closed, or when the property is transferred from military control. 
'Closed' ranges are ranges taken out of service by the military, 
including former ranges put to new uses incompatible with range 
activities - e.g., as storage or warehouse sites."

Thus, if the facility is otherwise subject to permitting under hazardous 
waste laws, a closed range would constitute a solid waste management 
unit. The rule would require the initiation, with oversight, of an 
assessment and cleanup process, but it would not impose any specific 
cleanup standards. EPA finds, "In any case, any necessary remedial 
action would be required before base closure or changes in land use, 
since at that point the range would clearly be closed."

EPA also states that even in the absence of this rule cleanup could be 
required under the Superfund law, because unexploded ordnance is a 
"hazardous substance." And it argues, "Environmental releases from 
range activities that migrate off-range - for example, heavy metals or 
other hazardous constituents contaminating ground water - would not 
be considered 'munitions' and would be subject to available cleanup 
authorities."

EPA's definition of "closed range" appears to be its own. It 
distinguishes "closed" ranges from "inactive" ones that could be 
reactivated. I don't know what standards determine that a range is 
inactive, but I think any range should be considered closed and subject 
to cleanup requirements unless public access is prevented by active 
security measures, not just fencing.

The Defense Department, in its comments on the EPA draft, still 
insists that range munitions are not wastes. It argues, "EPA does not 
provide factual or even anecdotal support for their position that 
munitions left in place after a range is closed have been discarded..." I 
don't get it! Are the duds programmed to rise from the subsurface and 
march to the nearest parade ground when the Star Spangled Banner 
plays? 

The military also argues that it is in the same position as a farmer who 
sells land to a real estate developer. A farm field where pesticides have 
been applied does not become a solid waste management unit upon a 
change in ownership or use. Forgetting the fact that regulators can 
prohibit the use of hazardous pesticides, this argument merely 
suggests to me that the range should be a solid waste management unit 
when it is active.

Finally, the military contends, "The fear of citizen's groups... that 
[unexploded ordnance] on ranges is a problem that will never be 
addressed is misplaced" due to existing Defense Department standards 
and requirements. The comment is less than reassuring. Valuable and 
beautiful real estate has been off limits for more than fifty years, and 
even now Defense and armed service policies restrict the use of funds 
for range cleanup. Even if the military brought its attitude on ranges 
into line with its more positive approach to industrial contamination, 
there is no guarantee that Congress would provide the funds. The 
environmental, cultural, and economic cost of not bringing munitions 
ranges into the environmental restoration process is enormous.

3. Management of Active Ranges

EPA, however, shies away from the regulation of active ranges. I 
think this is a mistake. While it may prove impractical to require the 
full cleanup of active ranges, application of hazardous waste laws 
might force the armed services to test and train weapons in a more 
responsible fashion. For example, they could more easily be required 
to move targets away from sensitive habitat. Regulators could oversee 
record-keeping.

Until the military has learned now to operate ranges more responsibly, 
such requirements could hamper its operations. But delaying outside 
oversight until base closure has created enormous problems. By the 
time cleanup is even considered, it's often impractical or prohibitively 
expensive. The fact that the Defense Department already has rules 
governing range management is unconvincing. The nation is being 
forced to pretend that too many former ranges are safe wildlife refuges 
because the military has been accountable only to itself.

EPA does make one exception. It requires the military to retrieve 
munitions that are fired off range. Unfortunately, it allows the 
installation to simply maintain a record of the event if remedial action 
is "infeasible." This might be acceptable, if EPA further defines who 
and for what reasons cleanup is infeasible. It shouldn't be up to the 
military alone.

4. Chemical Munitions. 

EPA seems to think that the rules governing stockpile chemical 
weapons are sufficient, and I'm not prepared to agree or disagree. The 
state of Oregon, home to the Umatilla Army Depot chemical stockpile, 
suggests stronger language to define leakers as wastes.

More important, the draft rule does not address the case of unexploded 
chemical munitions. These weapons, found on old ranges at facilities 
such as the Aberdeen Proving Ground, deserve special attention. The 
unearthing and destruction of such weapons should be subject to 
regulatory oversight because they pose such a serious threat to human 
health and the environment. In fact, any property known to contain 
non-stockpile chemical munitions - other than binary weapons, which 
are really just another piece of the stockpile - should be regulated 
under the hazardous wastes laws.

Such a finding would not only ensure that regulators have a say over 
investigation, removal, and disposal, but it might make it easier to pry 
loose cleanup funds - currently available for range remediation at 
active bases in limited circumstances.

5. Disposal Training

Perhaps the most disappointing provision in the draft rule is the 
endorsement of the Army position that the open burning of surplus 
propellant bags, as part of battlefield training, should not be regulated. 
Despite at least one study showing that emissions from such open 
burning probably increases cancer rates in nearby communities, EPA 
considers this practice a legitimate part of training.

I argue, however, that troops are being trained in waste disposal, and 
that any form of waste disposal training that releases significant levels 
of hazardous substances into the environment should be regulated as 
waste disposal. If its regulated, regulators may attempt to halt the 
practice, but it's more likely that they will attempt to determine when, 
where, and how the burning can take place. California, for example, 
wants the ash from such burning collected and handled as a hazardous 
waste. EPA says that it shouldn't regulate the training of troops in the 
wartime "use" of munitions. But open burning is not the use for 
which propellant bags were intended. It's an unsafe, undesirable 
disposal method.

6. Institutional Controls

EPA rejects proposals for post-closure requirements, such as 
permanent access restrictions, monitoring for off-site releases, and 
other requirements. It finds that section 120(h)(3) of the Superfund 
law (CERCLA) requires that "EPA must concur that all remedial 
actions necessary to protect human health and the environment have 
been taken" for property being transferred to non-Federal owners. 
EPA remains willing to consider such requirements for transfers to 
other Federal agencies.

However, the Defense Department rejects EPA's assertion that it must 
"concur." It wants to make the determination itself. In fact, Defense is 
trying to overcome a recent court decision by getting Congress to 
legislate big holes in section 120(h). I would hate to see disappearing 
protections used as an excuse not to impose rational regulation.

In the case of Federal transfers, other agencies - particularly the 
Interior Department - are being saddled with the reality of military 
range contamination without anywhere near the resources to protect 
the public. It may make sense to delay full remediation while cheaper, 
safer, more complete cleanup technologies are developed, but only if 
the public is fully protected.

In its comments, California's EPA took a clear stance against intra-
Federal transfers: "[The Department of Toxics Substances Control] 
believes that DOD should not be able to transfer ownership of ranges 
to any other Federal agency, state agency, or individual until the range 
is determined to be free of contamination."

I favor provisions, applicable to any former range, that establish 
standards for both physical and legal controls that minimize public 
access to areas known to be contaminated with unexploded ordnance. 
If another Federal agency can enforce those controls, then I'm willing 
to accept it. It's not a substitute for full cleanup, but it could save 
lives.

Lenny Siegel is the director of CAREER/PRO, a project of San 
Francisco State Univesity's Urban Institute, and the Pacific Studies 
Center.