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Witness Testimony
Mr. Douglas H. Benevento
Current Environmental Issues Affecting the Readiness of the Department of Defense
Good morning, my name is Doug Benevento and I am the executive director of the Colorado Department of Public Health and Environment. In that position I am responsible for the oversight of the State of Colorado's air, water, solid waste and hazardous waste programs as well as the bulk of the state's health programs. The majority of the programs that I am responsible for on the environmental side are programs that are delegated to the state through the Clean Air Act, the Clean Water Act, or the Resource Conservation and Recovery Act. I am a member of the Environmental Council of States and serve on that body's executive committee. Also, I am the former co-chair of ECOS' DoD forum, which is designed to open communications with DoD for the purpose of working through issues like this one. I do want to make clear though that today I am speaking for the state of Colorado and not ECOS or the DoD forum. I'm here today to testify on the excellent progress that has been made on DoD's proposal over the past 2 years. Through open communication and give and take I believe a product has been developed that should be mostly acceptable to both the DoD and the states. There is an interesting dynamic between state regulators and the Department of Defense. State regulators tend to automatically react with skepticism on any perceived infringment on our authority to regulate DoD activities. We are very good at pointing out every shortfall in any environmental proposal sought by DoD but are not very good at providing mutually acceptable solutions. A review of the testimony of state official on this topic is illustrative of this point. On the other hand DoD has in the past not done a good job of reaching out to state officials when developing their proposals and we have at times only found out about them after a final position has been adopted. I think both sides have done an excellent job of trying to remedy those past shortcomings. From a state's perspective I have read DoD's proposed changes critically, but with a problem solving perspective, and have tried to make suggestions that are helpful to their goals while ensuring no threat would arise to the public from any change. On DoD's part they have done an excellent job of reaching out to states. They have held numerous working meetings with state officials at our national organization, the Environmental Council of States (ECOS), and with other state organizations. Also, they have met with the Attorney Generals to try and ameliorate concerns and make changes to their proposal. I would also like to point out for the committee that I have not been hesitant in the past to use Colorado's regulatory authority when I believed it was appropriate. For example, when the Army found Sarin nerve gas bomblets at the Rocky Mountain Arsenal, a superfund site in the Denver Metropolitan Area, and proposed open detonating them as a remedy the state delivered a RCRA order to them at my directing prohibiting them from that course of action. Also, when asbestos was found in the soil at Buckley Air Force base the state mandated a stricter cleanup plan than the Air Force would have preferred. We are also currently engaged in an action against the Air Force also dealing with cleanup of asbestos in soils at the former Lowry Air Force base. I can provide more examples of enforcement actions the state has taken if only to demonstrate that I don't come to this issue as someone who has always agreed with DoD on the application of environmental laws. When I evaluated the DoD proposal I evaluated it using 2 principles. First, no change should pose a threat to human health or the environment; in this case no temporary waiver could result in any offsite release. Second, full liability needed to rest with the DoD for cleanup activities once a site is no longer an operational range. I believe both of those principles have been met. The DoD proposal is very narrowly tailored. They are seeking a temporary waiver from the Resource Conservation and Recovery Act (RCRA), the Clean Air Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. The temporary waiver would only apply to operational ranges, which is defined as those ranges that are used, or are anticipated for use, for military training activities. This proposal would not apply to those sites, such as the Rocky Mountain Arsenal or the former Lowry bombing range or the Pueblo Chemical Depot or the former Lowry Air Force base all of which are excluded through a plain reading of the language DoD has put forward. As the person in Colorado who is responsible for running the programs I can say with certainty sites such as these will not be affected. Further, any site which has been put to a use incompatible with military training is not covered by this proposal. Finally, when a site is no longer in use as an operational range all authorities would snap back and the states or EPA would have full authority to act appropriately. These are the facts and I think they're little room to dispute them. The provisions of the Clean Air Act are also narrow. It would allow DoD and the states a 3-year period to accommodate emissions from new military readiness activities into state implementation plans. This provision would apply to only new military readiness activities or construction related to the new activity. Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act Working with the states DoD has made changes to their proposal which I believe address state concerns and ensure that human health and the environment are protected while meeting their goal. When I testified last year in the Senate on this issue I offered several suggestions to DoD's proposal. I would like to outline how these suggestions have been addressed by DoD in the remainder of my testimony. I would like to begin with how the DoD proposal would impact RCRA and the authority of states under RCRA. I want to state at the outset that I don't know of any state that issues RCRA permits or attempts to regulate normal training activities of the military. Colorado has worked well with DoD on training activities on their sites in out state. The proposed legislation merely seeks to codify a generally good relationship with Colorado and other states on these issues. I have had numerous conversations with DoD and I feel comfortable representing their intent behind this proposal. What DoD is seeking are protections for their training activities on a range. They are not seeking an exemption from offsite impacts caused by their activities. For example, this legislation would not exempt DoD from a permitting requirement for open burning or open detonation (OB/OD) when used as a disposal activity. Colorado currently permits such activities and with or without this legislation we will continue to permit such activities. However, under this law an OB/OD activity that is a necessary part of training would be exempt. That is a legitimate exemption and currently the practice in Colorado and other states. Nevertheless, even though DoD was clear about their intent I was concerned that it could pose some unintended difficulties. The first was definitional. The proposal last year exempted munitions on an operational range. However, this posed an ambiguity since operational range did not have a statutory definition. This ambiguity has been resolved through the '04 NDAA which has defined an operational range as, under the jurisdiction, custody, or control of the Secretary of Defense and; 1. that is used for range activities, or 2. although not currently being used for range activities, that is still considered by the Secretary to be a range and has not been put to a new use that is incompatible with range activities. In my opinion, this definition provides sufficient clarity to ensure the exemption sought by DoD is limited to those areas under DoD control for necessary munitions related testing and training. This language should not apply to private ranges or to defense related contractor facilities. Second, I was concerned that last year's exemption language could be interpreted to apply offsite. DoD was very clear that was not their intent and this year's language has changed to clarify that point. DoD has significantly simplified this year's language by stating the scope of the exemption up front, it only applies to exempt from the definition of solid waste, military munitions and their constituents that meet a 3 prong test; 1. the munitions must be deposited incident to their normal and expected use; 2. they must be deposited on an operational range, and; 3. the munitions and the constituents must remain on the range. If any of these criteria are not met, they are not included in the exemption. Third, last year I expressed concern that that definition of operational range included ranges that were not currently in use. This is a difficult issue, but after numerous conversations with DoD I am comfortable with the inclusion of having ranges that are not currently being used for training sharing in the exemption. From an environmental regulators point of view so long as those ranges are not open to the public and there are not offsite releases and they are not being used for some different incompatible purpose, I don't believe inclusion of these ranges would pose any threat. Further, it is my understanding that DoD needs to retain these ranges because they potentially could be useful and the ability to acquire new ranges is very limited. However, I believed from a state perspective it would be useful if the military went through a review process of these inactive ranges to determine whether they should remain inactive, go to active status, or move to cleanup if necessary. Since my testimony of last year, DoD has completed an inventory of their operational ranges which has been provided to Congress. I understand this inventory was mandated by law in 2003 and will be updated annually until 2008. In addition, I am aware that a 2003 directive issued by DoD requires that range inventories be updated at least every 5 years to verify that they are still necessary. I think these inventories will assure that ranges which are not currently active will be evaluated and blunts any criticism that DoD will merely hold inactive ranges to avoid cleanup. Fourth, DoD has done an excellent job of simplifying the language so it is clear what is being exempted and what is not being exempted. While the language can always be tweaked, I believe this year's language sufficiently spells out the reach and scope of the exemption. Fifth, an issue that was of some concern to me last year was how to detect and verify that there are no offsite releases. In conversations with DoD I understand that they have already established policies to evaluate the impact of their ranges and to make that information public. By law, the results of all DoD on-range assessments or monitoring are available to EPA, and through FOIA to states and citizens as well; beyond that DoD has advised me that they are finalizing a policy formally requiring proactive sharing of such information with state and federal regulators and the public. Further, should constituents from military munitions migrate from an operational range, it would trigger a number of requirements under CERCLA section 103 respecting the release of hazardous substances, and response requirements under CERCLA section 104 and 10 U.S.C., section 2701. The combination of these authorities and binding policies will ensure that Congress, state, and federal regulators, as well as the public will soon have access to far more information about the environmental effects of DoD's on range activities than we ever possessed before. Sixth, DoD has language in this year's legislation which clearly states that once a range is no longer operational they are responsible for cleanup. The inclusion of this language is merely a clear statement of DoD's original intent and should obviate any criticism that they were attempting to avoid their environmental responsibilities on their property. Finally, they have removed language from last year's legislation which would have created a CERCLA preference for cleanup. What that would have done is preempt state hazardous waste laws and in favor of CERCLA. The elimination of this language was important to Colorado and we appreciate greatly their acknowledgement of our concerns. As with the redraft of the RCRA provision, I am equally persuaded that the language of DoD's current CERCLA provision is sufficiently narrow to preserve the commonsense proposition that use of munitions for testing and training on an operational range should not be considered a release of a hazardous substance triggering the requirements of CERCLA. As written, the exemption from the definition of release would apply to "military munitions, including unexploded ordnance, and the constituents thereof" that are deposited on the range incident to their normal and expected use in military test and training activities. As with RCRA my concerns about the scope of last year's proposal have been addressed. The Clean Air Act I expressed concern last year about revisions to the Clean Air Act that are sought with this proposal. While I do believe that flexibility from the conformity provisions of the Clean Air Act can be appropriate, crafting that flexibility is a challenge. My concerns are based on the simple fact that the potential for offsite impacts are much greater in this media. As I mentioned in the beginning of my testimony a basic principle I have is no change should result in an offsite impact. However, I have been very impressed with the diligence of DoD staff in working through issues on their proposal. Further, I am convinced and have been assured by DoD staff that they will continue to the collaborative effort with states that began over a year ago. Colorado will continue to work with them on this issue in hopes of finding a mutually solution that all of us feel comfortable supporting. Conclusion I believe the RCRA and CERCLA provisions of the Range Readiness and Preservation Initiative are appropriate and would not pose any risk in Colorado. The changes being sought merely allow for additional flexibility for DoD in carrying out training for their core mission. It is appropriate for environmental regulators to help provide that flexibility so long as we can ensure that we can fulfill our core mission. DoD should be commended for immense amount of time they have spent working with Colorado and other states to address our concerns in a positive problem solving fashion. Related Documents |
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