2005 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 27 Apr 2005 21:58:54 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] RRPI/"Exemptions" - Here we go again!
I've been hearing rumors that the Congressional Armed Services
Committees will soon mark up the Fiscal Year 2006 Defense Authorization
Bill, which contains the latest version of the Pentagon's Readiness and
Range Preservation Initiative (RRPI), known to its opponents as the
"Exemptions" legislation. I posted the proposed language and the Defense
Department's official analysis on April 15. See
http://www.cpeo.org/lists/military/2005/msg00372.html and http://www.cpeo.org/lists/military/2005/msg00374.html.

I always take rumors of haste on Capitol Hill with a grain of salt.
Nevertheless, it's always possible that Congress will approve the
legislation before anyone notices. 

The Department keeps bringing these proposals back to Capitol Hill in a
war of attrition. It hopes that opponents will be too tired of the
issues to keep responding. Many key opponents have already moved on to
new responsibilities and debates.

I focus my comments on Section 314 (Range Management) of the Defense
Bill, proposing changes to RCRA (the Resource Conservation and Recovery
Act) and CERCLA (the Comprehensive Environmental Response, Compensation,
and Liability Act), because that's what I know best. Many of same
general observations apply, however, to Section 313, modifying the Clean
Air Act. It's important to recognize that little has changed in the
realm of range contamination since the Defense Department first proposed
its package of environmental law changes back in 2002.

There are two fundamental reasons why Section 314 is bad law.

1) The Defense Department has never presented evidence that either RCRA
or CERCLA threatened to interfere with training or other readiness activities.

2) The legislation would significantly hamper efforts by regulatory
agencies and the public to control environmental degradation,
particularly the release and migration of the toxic substances
associated with munitions, on and from military ranges.

Presumably, Defense officials will argue that they've worked hard to
clarify that the RCRA and CERCLA exemptions do not apply to former
ranges. I know they've changed the language again, but I haven't yet
seen any independent analysis. It would be much simpler, however, if the
Defense Department would also clarify, in proposed legislation, that
RCRA and CERCLA DO APPLY to munitions and explosive chemicals on former
ranges. But even though it says that the exemptions don't apply to
former ranges, the Department still does not accept regulator authority
there under existing laws and regulations. See for example, http://www.cpeo.org/lists/military/2004/msg00699.html.

Remember, EPA's 1997 Military Munitions Rule pretty much settled that
regulatory agencies do not have the authority to tell the military when,
where, and how to clear conventional ordnance (unexploded ordnance and
discarded military munitions) from operational - active and inactive -
ranges. I didn't entirely agree, but I live with it.

The real impact of Section 314, if it passes, will be restrictions on
the oversight of the characterization and remediation of explosive and
propellant chemicals and byproducts, including in some instances
chemical weapons materiel. Serious contamination will be out of mind,
out of sight, and out from oversight as long as it remains within the
boundaries operational ranges. This will make it impossible for
regulators to address such contamination in the normal way, at the
source, even if that source is a concentrated disposal area within that
range. Contamination may spread widely before non-Defense officials are
even notified of releases.

Furthermore, the term "operational" range connotes a live impact area,
where outsiders might get in the way of practice bombing or artillery
training. However, legally it also applies to ranges that have not been
used for some time, but which have arbitrarily been classified
"inactive," rather than "closed," by the military. It applies to buffer
zones and to ranges used for other purposes, such as parachute landings,
machine-gun firing, and maneuvers.

I've always believed that the government's approach to munitions
response regulation, including Section 314, is backward. That is,
lawyers for all the agencies start with definitions and debate the
implications of those definitions. It would be much more sensible to
create a table of the decisions that need to be made, and then determine
who should have the final say in making each of them, considering, to
some degree, the impact on military readiness activities. Once that's
settled, the language of the law, including definitions, could be
massaged to accomplish that determination.

Lenny siegel

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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