2002 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 8 May 2002 17:22:51 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] The future of munitions regulation
The Defense Department's proposed language to revise the way RCRA (the
Resource Conservation and Recovery Act) and CERCLA (the Comprehensive
Environmental Response, Compensation, and Liability Act) govern
munitions and explosive constituents on operational ranges appears at
this time to be unlikely to be included in this year's Defense
Authorization Act. Nearly a decade since the passage of the Federal
Facilities Compliance Act, which directed EPA to write a rule defining
when munitions become a hazardous waste, the uncertainty over the
regulation of ordnance remains, not only on operational ranges, but at
former ranges.

While I continue to urge discussions among all stakeholder groups to
resolve these differences, it's likely that Congress will have to weigh
in. I suggest that any legislative language be developed as stand-alone
legislation, prepared and reviewed by the committees with jurisdiction
over the nation's hazardous waste laws. Such an approach would encourage
more careful study and debate, because the legislation would not be tied
to the necessarily inflexible schedule of the Defense Authorization
process. If routed through the appropriate committees, it's more likely
that representatives of non-Federal constituencies - particularly state
regulators and environmental organizations - would have the opportunity
to testify.

The key, however, to creating a workable framework for regulating UXO
and related substances, is to get away from the "definitions" game. For
the past several years, attorneys for various parties have proposed
definitions for solid waste, hazardous waste, and hazardous substances
that they believed would lead to the appropriate regulatory practices.
As we've seen with the current Defense Department language for
operational ranges, this approach cultivates suspicion. I have seen a
number of detailed legal analyses of the Defense proposal, suggesting
that it would have a different, and more substantial impact than the
Defense Department says.

I suggest, instead, that the stakeholder groups and Congressional staff
work to establish a set of common goals for the regulation of ordnance,
such as:

1. State and/or federal environmental regulators should have the
authority to approve/deny any risk management activities on former ranges.

2. Defense Department explosive safety experts should have the authority
to veto any munitions response that they deem unsafe.

3. Government agencies outside the Department of Defense should have the
ability to promote the sustainable management of operational military ranges.

4. Unless imminent hazards to the public are identified, hazardous waste
laws should not be used to prevent the military from conducting
live-fire training exercises or testing and evaluation.

5. There should be a standard but flexible approach to monitoring range
areas for the presence and migration of hazardous explosive constituents.

6. There should be nationally defined site security standards for both
operational and former ranges, flexible enough to be adapted to local
conditions at each range.

Once these goals are established, then the laws and definitions can more
easily be revised to help achieve them.


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

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