[CPEO-MEF] RRPI Redux

[Lenny Siegel <lsiegel@cpeo.org>]

I'm not sure why, since the November 2006 elections enhanced the power 
of Representatives and Senators who have effectively opposed its 
legislative proposals, but the Defense Department has once again 
proposed to Congress the remaining pieces of the Readiness and Range 
Preservation Initiative (RRPI). Below is the official Department 
analysis of the proposed amendments to the Resource Conservation and 
Recovery Act, the Comprehensive Environmental Response, Compensation, 
and Liability Act, and the Clean Air Act. - LS




Section 314 addresses application of the Solid Waste Disposal Act (SWDA) 
(also known as the Resource Conservation and Recovery Act (RCRA)) and 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (CERCLA) to military readiness activities.

Subsection (a)(1) would exclude military munitions, including unexploded 
ordnance, and the constituents thereof from the definition of "solid 
waste" under the SWDA when the Department of Defense (DoD) deposits such 
items on an operational range incident to normal use, and such items 
remain thereon. Subsection (a)(2) provides that the exclusion in 
subsection (a)(1) does not apply to certain listed activities or 
circumstances such as traditional waste management activities like 
burial or land-filling, migration off an operational range, or firing 
off range. Subsection (a)(2) additionally provides that the exclusion in 
subsection (a)(1) ceases to apply once the operational range on which 
the items were deposited ceases to be an operational range. Subsection 
(a)(3) explicitly preserves the authority of federal, state, interstate, 
and local regulatory authorities to determine when, after an operational 
range ceases to be an operational range, these items become a hazardous 
waste subject to the Act.

Subsection (b)(1) would exclude from the definition of "release" under 
CERCLA the presence of military munitions, including unexploded 
ordnance, and the constituents thereof, that the DoD deposited 
incidental to normal use on an operational range and that remain 
thereon.  Subsection (b)(2) provides that the exclusion in subsection 
(b)(1) does not apply to certain listed activities or circumstances, 
such as migration off an operational range or firing off range.

Subsection (b)(2) additionally provides that the exclusion in subsection 
(b)(1) ceases to apply once the operational range on which the items 
were deposited ceases to be an operational range. Subsection (b)(3) 
explicitly preserves the President's authority to address an imminent 
and substantial endangerment to the public health, welfare, or the 
environment under section 106(a) of CERCLA.

Subsection (c) provides definitions of terms, including incorporating by 
reference terms already defined in title 10, United States Code.

Subsection (d) reaffirms that the exclusions set forth in subsections 
(a)(1) and (b)(1) do not apply once the operational range ceases to be 
an operational range.

Subsection (e) reaffirms the DoD's authority to protect the environment, 
safety, and health on operational ranges.

As noted above and reiterated in subsection (d), this section would have 
no effect on the legal requirements applicable to military munitions, 
including unexploded ordnance, or the constituents thereof, once the 
range on which they were deposited ceases to be an operational range. 
These provisions would restrict the application of certain authorities 
under CERCLA and RCRA for covered munitions while those ranges remain 
operational. Application of those same authorities when the range ceases 
to be an operational range is not affected by these two provisions. Nor 
would this section place any restriction on the applicability of the 
Safe Drinking Water Act on or off of an operational range. Nothing in 
this section affects a private party's right of action against the 
United States or any of its agencies to recover costs expended in the 
clean up of military munitions, including unexploded ordnance, and the 
constituents thereof, that are present on property formerly operated 
(directly or through a contractor) or formerly owned by the United States.


Section 315 would clarify the application of the conformity provisions 
of the Clean Air Act to avoid unnecessarily restricting the flexibility 
of Department of Defense (DoD), State, and Federal regulators to 
accommodate new or realigned military readiness activities into 
applicable air pollution control schemes. This section would maintain 
the DoD's obligation to conform its military readiness activities to 
applicable State Implementation Plans (SIPs), but would give the DoD 
three years to demonstrate conformity. The three-year extension could be 
particularly important for new weapon system beddowns or base 
realignments in recently designated nonattainment areas for either the 
new 8-hour Ozone or fine particulate (PM2.5) standards. The applicable 
SIPs for these recently designated nonattainment areas may lack the full 
range of options normally relied upon to demonstrate that military 
readiness activities conform, or they may lack the required 
Environmental Protection Agency approval, or both. In addition, under 
the requirements of current law, it is becoming increasingly difficult 
to base military aircraft near developed areas.

--


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
<lsiegel@cpeo.org>
http://www.cpeo.org


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