Witness Testimony

Mr. Dan Miller
First Assistant Attorney General
Natural Resources and Environmental Section Colorado Department of Law
1525 Sherman Street, 5th floor
Denver, CO, 80203

Current Environmental Issues Affecting the Readiness of the Department of Defense
Subcommittee on Energy and Air Quality
Subcommittee on Environment and Hazardous Materials
April 21, 2004
10:00 AM

I.            Introduction

In February 2004, the Department of Defense ("DOD") proposed legislation (the "Readiness and Range Preservation Initiative" or "RRPI") that would grant it exemptions from the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and the Clean Air Act.  DOD has asserted that the amendments are necessary to maintain military readiness.  This is the third successive year that DOD has proposed similar legislation.  Over the past two years, a large number of state and local government officials and associations voiced strong opposition to the proposed amendments to RCRA, CERCLA, and the Clean Air Act.[1]        

As we have previously emphasized, we absolutely support the need to maintain military readiness, and to provide our armed forces with appropriate realistic training to minimize battlefield casualties and increase their combat effectiveness.  There is no question of the importance of maintaining military readiness.  

However, military training activities have caused adverse impacts on human health and the environment, and resulted in expensive cleanups.  For example, there are currently approximately 129 DOD facilities on the Superfund National Priorities List.  There is increasing evidence that military training and testing activities on ranges can contaminate groundwater.  To date, 40 DOD installations have had perchlorate, a constituent of rocket fuel and many military munitions, detected in their groundwater or surface water.  Perchlorate impacts the thyroid.  Other toxic munitions constituents, such as RDX, TNT, and white phosphorous, have also been found to contaminate groundwater. 

Are there really conflicts between requirements under RCRA, CERCLA, or the Clean Air Act and military readiness? DOD has not identified any such conflicts to date, and we are not aware of any.  We think that the likelihood of future conflicts is small.  The question, then, is whether the existing environmental laws allow the military to conduct necessary activities in a manner that maintains readiness while ensuring protection of human health and the environment.  With respect to RCRA, CERCLA, and the Clean Air Act, we believe that they do.  In our view, furthering military readiness and ensuring environmental protection are compatible goals, not mutually exclusive.

Even read in the narrowest possible fashion, the 2004 RRPI would hamstring state and EPA cleanup authorities at over 24 million acres of "operational ranges," an area the size of Maryland, Massachusetts, New Jersey, Hawaii, Connecticut and Rhode Island combined.  As a practical matter, environmental regulators would likely be precluded from using RCRA, CERCLA, and related state authorities to require any investigation or cleanup of groundwater contamination on these ranges, even if the contamination had migrated off-range, polluted drinking or irrigation water supplies, and even if it posed an imminent and substantial endangerment to human health.  And it is likely that DOD's amendments would be construed more broadly to exempt even more contamination from state and EPA oversight.

Under the 2004 RRPI, states and EPA would be essentially powerless to require investigation or cleanup of munitions-related groundwater contamination beneath an operational range,  even if the contamination had migrated offsite and was impacting drinking water wells.  If we have learned anything in the past thirty years of environmental regulation, it is that relying on federal agencies to "voluntarily" address environmental contamination is often fruitless.  One need look no further than the approximately 130 DOD facilities on the Superfund National Priorities List, or DOD's poor record of compliance with state and federal environmental laws to see that independent, legally enforceable state oversight of federal agencies is required to achieve effective results.   

DOD has stated that its language is intended to preempt state and EPA cleanup authorities at operating ranges, even though it acknowledges there have never been any conflicts between RCRA or CERCLA cleanup requirements and military readiness, and in particular that neither state nor federal regulators have taken any action under these laws that has adversely impacted military readiness .[2]  DOD instead proposes to address any environmental contamination on or under its ranges through self-oversight. 

We oppose DOD's proposed amendments to RCRA, CERCLA, and the Clean Air Act for the following reasons:

• First, as far as we are aware, the Department of Defense has not identified any cases in which these three laws have actually adversely impacted readiness.  Nor are we aware of any such cases.  Indeed, in a recent meeting between states and DOD representatives, DOD acknowledged that preempting state authority under these laws was "not a matter of readiness, but of control."  Consequently, we do not believe that the proposed amendments are necessary.

• Second, RCRA, CERCLA, and the Clean Air Act already provide sufficient flexibility to accommodate potential conflicts, in the unlikely event they occur. Each of these laws provides for case-by-case exemptions.  In addition, states have a track record of working with DOD and other federal agencies to ensure that environmental requirements do not impede national security objectives.

• Third, the magnitude and nature of DOD's past and current activities present a significant risk of environmental contamination.   Experience over the past thirty years shows that independent state oversight is necessary to ensure protection of human health and the environment.  This same experience also shows that states are sensitive to DOD's national security mission, and have consistently found ways to balance military and environmental requirements.

• Fourth, the Department of Defense's amendments would radically change existing law and policy, and would impair state and EPA authority to ensure protection of human health and the environment.

Each of these points is discussed in greater detail in the sections that follow. 

II.        DOD's proposed amendments to RCRA, CERCLA, and the Clean Air Act are unnecessary, and would impair protection of human health and the environment, without improving military readiness.

II. A.            DOD has not demonstrated any conflicts between RCRA, CERCLA, or the Clean Air Act. 

DOD has urged Congress to amend these laws, and has testified about the impacts of these and other environmental laws on military readiness at over 12 Congressional hearings since 2001.[3]  Just last month, in response to Congressional directives, DOD submitted a report to Congress addressing the impacts of RCRA, CERCLA, and the Clean Air Act on military readiness.[4]   Yet, nowhere in any of this testimony or its report to the Congress did DOD identify even a single instance in which RCRA, CERCLA, or the Clean Air Act have impacted military readiness. 

Last year, EPA Administrator Christine Whitman testified that she was not aware of any training mission anywhere in the country that was being held up or not taking place because of RCRA, CERCLA, or the Clean Air Act.  On March 7, 2003, Deputy Secretary of Defense Wolfowitz issued a memorandum to the military service Secretaries regarding DOD compliance with ten different environmental and natural resource laws.  He stated "[i]n the vast majority of cases, we have demonstrated that we are able both to comply with environmental requirements and to conduct necessary military training and testing."    In light of this, the Deputy Secretary directed the Secretaries to give greater consideration to using the existing exemption processes in these environmental and natural resource laws in the "exceptional cases" that may present conflicts.  To date, no exemptions have been invoked under RCRA, CERCLA, or the Clean Air Act related to military readiness.    

And in December, 2003, representatives of several western Attorneys General and state environmental agencies met with representatives of the Department of Defense (DOD) and the military services to discuss the underlying concerns that prompted DOD to promote proposed legislation to amend several environmental laws. DOD acknowledged that there have not been any instances in which RCRA or CERCLA have impacted readiness, and specifically that no state has ever used its RCRA or state superfund authority in a manner that has impacted readiness.[5]

 II. B.            RCRA, CERCLA, and the Clean Air Act provide sufficient flexibility to accommodate any conflicts between their requirements and military readiness, in the unlikely event such conflicts occur. 

            It is noteworthy that in the four years DOD has been warning of conflicts between military readiness and requirements under RCRA, CERCLA, or the Clean Air Act, no such conflicts have arisen.  We think that the likelihood of such conflicts in the future is low, because of inherent flexibility in implementing requirements under these laws.  In the unlikely event such a conflict occurs, the existing exemption provisions in these laws provide further flexibility.  They allow the military readiness concerns to override the environmental considerations, while preserving environmental regulators' authority in the vast majority of cases where there is no conflict. 

II. B. 1.            There is substantial flexibility in implementation of environmental requirements under RCRA, CERCLA, and the Clean Air Act. 

States have been regulating the Departments of Defense and Energy -- the two federal agencies with national security missions -- for decades without impacting national security.  We have been able to do so because there is substantial inherent flexibility in most environmental regulatory programs. This is especially true in investigating and cleaning up contaminated sites under both RCRA and CERCLA.  There are a variety of approaches to investigating and cleaning up contamination, and cleanup strategies are invariably site-specific.  

For example, there is flexibility in siting the specific location of monitoring wells and treatment systems, and additional flexibility in the timing of their installation and sampling or maintenance.  One example of successfully coordinating environmental cleanup and training activities on an operational range is at Ft. Carson, Colorado.  There, the Colorado Department of Public Health and Environment worked with range officials at Ft. Carson to install groundwater monitoring wells on an active range without impacting any training activities.  The wells were installed on a day when the range was not in use, and the state adjusted the normal sampling period to coincide with range use schedules.   

The December 2003 meeting of state and DOD officials mentioned above highlighted just how much flexibility there is "on the ground" to address the environmental impacts of military munitions without impacting readiness.  DOD representatives explained that ranges are typically divided into different areas such as impact areas, buffer zones, and maneuver areas.  DOD allows public access to the maneuver areas and buffer zones on some ranges for recreational purposes when such activities do not conflict with DOD's own use of the range.  State officials asked why, if recreational activities in buffer zones and maneuver zones can exist compatibly with range operation, installing a groundwater monitoring well or treatment system in such areas would cause any difficulties.[6] Ultimately, DOD responded that preempting state authorities was "not a matter of readiness, but of control."[7] 

There is also significant practical flexibility in the Clean Air Act.  DOD acknowledged at the December 2003 meeting with state representatives that advance planning, combined with existing thresholds and exemptions in the Clean Air Act regulations would resolve its clean Air Act concerns in most cases.

It's easy to hypothesize potential conflicts between environmental regulations and military training.  It takes a little more work to balance readiness and environmental concerns on a case-by-case basis, but the track record of the past several decades shows that resolution of competing considerations is the normal practice. 

II. B. 2.            RCRA, CERCLA, and the Clean air Act each provide simple exemption processes that may be used in the unlikely event of a conflict between readiness and environmental requirements.

In the unlikely event that state or EPA regulators believed that environmental contamination at an operational range required remediation measures that did adversely impact readiness, RCRA and CERCLA already allow DOD to seek an exemption from such requirements on the basis of the paramount interests of the United States (RCRA) or national security (CERCLA).  According to the existing case law, rather than being "exceptionally high," (as DOD has claimed)[8] the "paramount interest" standard is quite deferential. The "paramount interest" standard is unique to the exemption provisions of the environmental laws. The paramount interest provisions have been the subject of litigation in two instances - one at the Air Force facility near Groom Lake, Nevada, and the other at Puerto Rico's Ft. Allen. 

In Kasza v. Browner,[9] the Ninth Circuit Court of Appeals upheld President Clinton's decision under RCRA § 6001 to exempt the Air Force facility near Groom Lake, Nevada from any hazardous waste or solid waste provisions that would require the disclosure of classified information to any unauthorized person.  The court held:

Here, the President found that "it is in the paramount interest of the United States to exempt the operating location from any applicable requirement for the disclosure to unauthorized persons of classified information." . . .  That is what the President determined was in the paramount interest of the United States, a matter the Congress explicitly left to the President's discretion, and we have no problem with the district court's accepting that determination.[10]

(Emphasis added.)  Similarly, in Colon v. Carter,[11] the First Circuit described the exemptions provided in several environmental laws as follows:

[T]he determination that a President must make prior to issuing an exemption from the relevant environmental regulations is that the "paramount interest of the United States" requires the exemption. [citations omitted]  It is difficult to imagine a determination more fully committed to discretion or less appropriate to review by a court."[12]

(Emphasis added.)  Thus, the only appellate decisions to address the exemption provisions make clear that the determination that a particular exemption is in the paramount interest of the United States is one that lies within the President's discretion. The President's discretion would certainly encompass a determination that it is in the paramount interest of the United States to exempt a number of individual military activities from certain environmental requirements because of the cumulative impact of compliance on readiness.

In addition to providing a case-by-case exemption, section 118(b) of the Clean Air Act authorizes the President to "issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vehicles, or other classes or categories of property which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any state and which are uniquely military in nature."[13]  This provision allows even greater flexibility than the case-by-case exemptions in managing any potential conflicts between Clean Air Act requirements and readiness concerns.  And this three- year exemption provision in the Act goes directly to the heart of DOD's concern - that the Act's federal conformity provisions may limit its ability to move or add military vehicles - planes, tanks, etc. - among its various installations.  And the EPA regulations implementing the federal conformity provisions also contain substantial flexibility.  These regulations allow DOD to set aside clean air requirements for up to six months in response to "emergencies," which, by definition, include responses to terrorist activities and military mobilizations.  This exemption is renewable every six months through a written determination by DOD.[14]

II. C.             DOD's activities pose a substantial risk of harm to human health and the environment that must be managed through independent state oversight.  

II.C.1.            DOD's activities present a significant risk of harm to human health and the environment.

DOD is responsible for far more contaminated sites than any other federal agency. There are 158 federal facilities currently listed on the Superfund National Priorities List (NPL); another 13 federal facilities have been deleted from the NPL, and 6 are proposed for listing.   Of these 177 federal facilities, 142 are DOD facilities.[15]  All together, DOD is responsible for addressing over 28,500 potentially contaminated sites across the country.[16]  Through fiscal year 2001, DOD had spent almost $25 billion cleaning up sites for which it is responsible.[17] DOD recently estimated that it would take another $14 billion to complete the remediation of environmental contamination at active, realigning and closing sites.[18]  

But the need for cleanup of active and closing bases is only part of the picture.  DOD is also responsible for assessing and cleaning up thousands of potentially contaminated "Formerly Used Defense Sites" ("FUDS") in the United States and its territories and possessions.[19]  Many FUDS are former bombing or gunnery ranges that contain unexploded ordnance.  The GAO estimated recently that unexploded ordnance contamination may exist at over 1,600 FUDS.[20]  DOD estimates that approximately 16 million acres of land on transferred ranges are potentially contaminated with unexploded ordnance.[21]   There are no reliable data on the cost of addressing the contamination at these former ranges and other FUDS. DOD's recent estimates for unexploded ordnance cleanup vary from $14 billion to over $100 billion.[22] 

There is increasing evidence that DOD's activities on its ranges may pose a threat to groundwater supplies.  Some constituents of explosives and munitions contamination, such as TNT, RDX and white phosphorous, have toxic or potential carcinogenic effects.[23]  Another munitions constituent that is currently causing much concern is perchlorate.  Perchlorate is a chemical widely used in solid rocket fuel and munitions.  It interferes with iodide uptake into the thyroid gland, and disrupts the thyroid function.  The Wall Street Journal has reported that EPA is concerned that fetuses and newborn babies may be particularly sensitive to exposure to perchlorate.[24]  

Little is known about the factors affecting the movement of munitions constituents such as perchlorate and TNT through soil and groundwater.[25]  However, there is increasing evidence that such munitions constituents on operational ranges can contaminate drinking water supplies.  Nationwide, there are at least 40 DOD facilities with known perchlorate contamination of groundwater or surface water.[26]  Live-fire training at the Massachusetts Military Reservation (MMR) over several decades has contaminated large amounts of groundwater in the sole source drinking water aquifer for the Cape Cod area.  Recently, the Town of Bourne closed half of its drinking water supply wells due to contamination by perchlorate that migrated from MMR.  Subsequently, DOD spent approximately $2 million to hook the town up to an alternate water supply.[27]  Reportedly, explosives contaminants have been detected in about 100 groundwater monitoring wells on MMR, and have exceed EPA health advisory limits at 53 of those wells.[28]  Similarly, military training activities at the Aberdeen Proving Ground have contaminated groundwater there with perchlorate, again prompting closure of a municipal water supply well that had been contaminated.[29]

Perchlorate contamination is also a problem at many DOD contractor facilities.  Some of these facilities may be considered ranges under the 2004 RRPI.  Defense contractors could thus argue they are insulated from state and EPA oversight under RCRA and CERCLA-type authorities.  Examples of such facilities may include the Aerojet-General facility in Rancho Cordova, California, or Kerr-McGee's perchlorate production facility in Henderson, Nevada, above Lake Mead.  Contamination from the Kerr-McGee facility is a major contributor to perchlorate levels in the Colorado River, which typically measure 10 to 12 parts per billion in Las Vegas, and from 5 to 8 parts per billion in southern California, where the Metropolitan Water District withdraws it for use in Los Angeles's drinking water supply.  Roughly 15% of California's water supply comes from the Colorado River.[30]

II.C.2.            Independent state oversight is needed to ensure DOD complies with environmental requirements.

Under current law, DOD may obtain exemptions from requirements under RCRA, CERCLA or the Clean Air Act in the unlikely event such requirements conflict with military readiness.  But under the 2004 RRPI, DOD would be exempt from these requirements in all cases, even though there would seldom, if ever, be a conflict.  Obviously, a case-by-case approach to resolving any future potential conflicts between readiness and the requirements of RCRA, CERCLA and the Clean Air Act results in more environmental protection at no cost to military readiness. 

The case-by-case exemption approach afforded by existing law is also preferable to sweeping statutory exemptions because the case-by-case approach provides much-needed accountability.  Experience since the 1992 Supreme Court decision in U.S. Department of Energy v. Ohio[31] demonstrates that federal agencies in general, and DOD in particular, are far more likely to comply with environmental requirements when they can be held accountable.  In that case, the Supreme Court held that federal agencies were not subject to penalties for violating state hazardous waste and water quality laws.  In response, Congress swiftly amended RCRA by passing the Federal Facility Compliance Act (FFCA).[32]  The FFCA made federal agencies subject to penalties for violating hazardous waste laws.  Once Congress clarified the states' authority to hold federal agencies accountable for violating hazardous waste requirements, DOD and other federal agencies began steadily improving their RCRA compliance rates, bringing the percentage of facilities in compliance from a low of 55.4% in FY 1993 to 96.9% in FY 2002.[33]

This salutary trend stands in stark contrast to federal agency performance under the Clean Water Act.  Unlike RCRA, Congress did not amend the Clean Water Act following the Ohio decision to subject federal agencies to penalties for violating Clean Water Act requirements.  Since the Supreme Court decision removed the threat that states could hold federal agencies accountable for violating Clean Water Act requirements by assessing penalties, the percentage of federal facilities in compliance with the Clean Water Act has fallen fairly steadily from a high of 94.2% in FY 1993 to a low of 51.9% in FY 2001, rebounding in 2002 to 67.3% in 2002.[34] DOD's Clean Water Act compliance rates have generally been slightly worse than the federal agency totals.[35]

III.       DOD's proposed amendments would radically change existing law and policy, and would impair state and EPA authority to ensure protection of human health and the environment.  

In response to criticisms of the 2002 and 2003 versions of the 2004 RRPI, DOD has made some revisions to its proposed language amending RCRA and CERCLA.  DOD has not made any revisions in its Clean Air Act proposal.  A careful analysis of the revised version of the RCRA/CERCLA amendments indicates that they still create broad exemptions, as described below.[36]

III. A.            DOD's proposed 2004 amendments to RCRA create sweeping exemptions from state and EPA oversight

In summary, DOD's proposed amendment to RCRA exempts certain military munitions from RCRA's definition of "solid waste," the fundamental jurisdictional definition in RCRA.  As a result, DOD's proposed amendments likely preempt state and EPA authority to require cleanup of a wide variety of  munitions-related contamination.  This is because EPA's authority under RCRA only extends to materials that are solid wastes, and because RCRA's waiver of sovereign immunity applies to state requirements respecting control and abatement of "solid waste."  (States may only regulate the federal government to the extent Congress has authorized such regulation through a waiver of sovereign immunity.) Thus, the scope of the RCRA sovereign immunity waiver will likely be affected by amendments to RCRA's definition of solid waste.  And because waivers of immunity are construed extremely narrowly, any ambiguity in the definition of solid waste will likely be construed in the way that results in the narrowest waiver.[37]   If the 2004 RRPI were enacted, we are concerned that DOD would argue that substances that are excluded from RCRA's definition of solid waste are not subject to the waiver.

DOD's proposed definition of solid waste reads:

"Section ___.  Range management.

(a)  Definition of Solid Waste. -

(1) The term 'solid waste' as used in the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et seq.), does not include military munitions, including unexploded ordnance, and the constituents thereof, that are or have been deposited, incident to their normal and expected use, on an operational range, and remain thereon.

(2)  Paragraph (1) shall not apply to military munitions, including unexploded ordnance, or the constituents thereof, that --

(A) are recovered, collected, and then disposed of by burial or landfilling; or

(B) have migrated off an operational range; or

(C) are deposited off of an operational range; or

(D) remain on the range once the range ceases to be an operational range.

(3) Nothing in this section affects the authority of federal, state, interstate, or local regulatory authorities to determine when military munitions, including unexploded ordnance, or the constituents thereof, become hazardous waste for purposes of the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et seq.), including, but not limited to, sections 7002 and 7003, except for military munitions, including unexploded ordnance, or the constituents thereof, that are excluded from the definition of solid waste by this subsection.

Thus, DOD's proposed amendment to RCRA's definition of solid waste consists of three paragraphs.  The first paragraph excludes certain military munitions from the definition of solid waste, and the second paragraph creates certain limitations on exclusion.  The third paragraph likely preempts federal, state, interstate and local authorities from defining as solid waste any military munitions excluded from the definition by the first two paragraphs. 

DOD's proposed amendment excludes certain classes of munitions from EPA regulation under RCRA by excluding them from the statute's definition of "solid wastes," which is a fundamental jurisdictional prerequisite to RCRA regulation.[38]  By narrowing this definition, DOD's proposed amendment also likely limits the scope of state authority under state hazardous waste laws.  That's because the term "solid waste" appears in RCRA's waiver of federal sovereign immunity -- the provision of the law that makes DOD subject to state hazardous waste laws.[39]  The scope of the RCRA sovereign immunity waiver will likely be affected by amendments to RCRA's definition of solid waste.  And because waivers of immunity are construed extremely narrowly, any ambiguity in the definition of solid waste will likely be construed in the way that most restricts state authorities over DOD.[40]

III. A. 1.            Even under a narrow reading, DOD's proposed language would likely preempt state and EPA authority under RCRA and analogous state laws to require investigation and cleanup of UXO or other munitions contamination on over 24 million acres of "operational ranges," including ranges that have not been used in decades.

If proposed subsection (a) is read such that the phrase "that are or have been deposited, incident to their normal and expected use, on an operational range, and remain thereon" modifies "military munitions," then the exemption provided in paragraph (1) would be limited to "operational ranges."[41]  As discussed below in III.A.3., the term "operational range" may include contractor-owned facilities.  But even construed to mean only ranges owned or leased by the United States, this exemption would still be very far-reaching, as there are over 24 million acres of operational ranges owned or leased by the United States and under DOD's control.[42]   This is roughly equivalent to an area the size of Maryland, Massachusetts, New Jersey, Hawaii, Connecticut and Rhode Island combined.  These 24 million acres include an unknown number of ranges that have not been used in years, or, in some cases, decades.[43]

The 2004 RRPI likely prevents states or EPA from requiring any investigation or cleanup of munitions-related contamination under RCRA, CERCLA, or analogous state laws within the exterior boundary of an operational range, regardless of whether such contamination presents an imminent and substantial endangerment, is threatening to migrate off-range, or actually has migrated off range.  One example where on-range contamination likely presents an imminent and substantial endangerment is the Aberdeen Proving Grounds.  There, perchlorate contamination from munitions has contaminated municipal drinking water wells that are located on an operational range.  Under The 2004 RRPI, states and EPA would be powerless to require that this contamination be addressed.[44]  

Under DOD's proposed legislation, the presence of munitions contamination in groundwater below a range is not considered to be "off-range."[45]  Instead, the contamination must move beyond the lateral boundary of the range before it is considered off-range.

Preempting state and EPA RCRA authorities on operational ranges significantly impairs these regulators' ability to protect human health and the environment for several reasons.  We know from decades of experience in cleaning up plumes of groundwater contamination that the only really effective strategy is to address the plume at its source, but the 2004 RRPI would likely eliminate state and EPA authority to require investigation or cleanup of an on-range source of contamination.  Some ranges encompass hundreds of square miles, so munitions contamination could spread vast distances before it crosses a range boundary where state or EPA authority would begin.  Allowing contamination to spread so far may create vast sacrifice zones of unusable groundwater, because cleanup may not be technically or economically feasible over such large areas.  Groundwater supplies are scarce in parts of the country, particularly in the West, and particularly in times of drought.  States have a vital interest in preserving their groundwater resources to protect the health of their citizens and the welfare of their economies. 

Even if cleanup of such large plumes is technically feasible, DOD's policy of allowing groundwater contamination to spread within the exterior boundaries of its ranges substantially increases the costs of cleaning up the contamination.  It also substantially increases the risk of unanticipated exposures to the contaminants, because our understanding of the subsurface environment is limited at best.  Finally, without authority to require investigation of groundwater contamination, how would regulators ever become aware of munitions contamination in groundwater until it had impacted drinking water supplies?  These concerns underscore the importance to the states of retaining the authority to require investigation and cleanup of munitions contamination on ranges.

It is also important to recognize that the term "operational range" includes ranges that have not been used in years, or even decades.[46]   In a 1998 survey EPA noted that many ranges which had not been used in decades had not been formally closed by DOD, and so were considered "inactive".[47]  Because RCRA and CERCLA cleanup actions can be implemented at active ranges without impacting readiness, there is clearly no justification for preempting these authorities at ranges that have not been used in years.  

There also will likely be practical difficulties in applying the concept of "operational range" to determine where state or EPA authority begins or ends.  At the December 2003 meeting between DOD and state officials to discuss DOD's concerns with RCRA, CERCLA and the Clean Air Act, DOD representatives indicated they were not aware of any guidelines or procedures for designating ranges.  When asked if each range had a legal description, they responded that some do, while others do not.[48] Without knowing precisely where a range boundary is, it is not possible to define where state or EPA authority begins or ends under RRPI.  And it also appears that under the RRPI, DOD could eliminate state or EPA authority in a given area simply by considering it to be part of a range - perhaps an expansion of a buffer zone.   

As a practical matter, even read in the narrowest fashion, the 2004 RRPI would likely preempt state and EPA authority under RCRA and analogous state laws to require DOD to investigate or control an on-range source of groundwater contamination, even if:

• drinking water wells onsite or offsite were contaminated;
• the contamination were causing an imminent and substantial endangerment;
• the range was on land owned by the state; or
• it was on a range that had not been used in decades.

In addition, states and EPA would likely be preempted from regulating the open detonation of unexploded ordnance.[49]

III. A. 2.      DOD may argue that its proposed amendment to RCRA's definition of solid waste should be construed more broadly to exclude nearly all military munitions and related contamination from RCRA and corresponding state regulation.

As noted above, federal courts construe waivers of federal sovereign immunity extremely narrowly. [50]  So a federal court, when faced with alternative interpretations of a waiver of immunity, will choose the one that results in the narrowest possible waiver. DOD's proposed language is particularly troubling when considered in light of this rule of statutory construction.  That's because proposed (a)(1) may be read two different ways.  The alternative readings arise because the grammatical construction of this paragraph -- a long series of phrases set off by commas -- is ambiguous at best.  The limiting subordinate clause that starts "that are or have been deposited, incident to their normal and expected use, on an operational range, and remain thereon" could modify the term "military munitions," or it could modify the phrase "including unexploded ordnance, and the constituents thereof."  Both readings create broad exemptions, but the difference has significant implications. 

If the limiting clause "that are or have been deposited, incident to their normal and expected use, on an operational range, and remain thereon" modifies "unexploded ordnance, and the constituents thereof," then there is no language in (a)(1) that limits or modifies "military munitions."  Paragraph (a)(1) might as well read "The term 'solid waste' as used in the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et seq.), does not include military munitions."  All military munitions and munitions constituents[51] such as perchlorate, TNT, RDX, and other chemical explosives and propellants -- except those described in (a)(2) -- would likely be completely exempt from state and EPA regulation under RCRA and analogous state laws.

We are concerned that a federal court reviewing the 2004 RRPI would adopt this interpretation because it would result in a narrower scope of state authority over DOD.  Subparagraph (2)(C) also supports this reading.  If paragraph (1)'s exclusion is limited to munitions that were deposited, incident to their normal and intended use, on an operational range, then (2)(C) would be surplusage.  Because courts strive to give meaning to all parts of a statute, the inclusion of (2)(C) suggests the broader reading of (1) is appropriate. 

This broader reading of (a)(1) would likely preempt state and EPA authority to require the investigation or cleanup of nearly all munitions-related contamination, not just contamination arising from the normal and intended of munitions on an operational range.  Even munitions contamination that arose from improper management of discarded munitions or munitions constituents would likely be excluded from RCRA.  One such example would be ammunition washout activities.  At the Pueblo Chemical Depot in Colorado, ammunition washout created a plume of TNT-contaminated groundwater that has traveled over two miles, and has gone off the Depot to contaminate drinking water wells nearby.

In addition, contamination caused by munitions or their constituents that have been disposed through discharge, injection, dumping, spilling or placing on or off of an operational range would likely be excluded from state and EPA RCRA cleanup authorities.  Subparagraph (a)(2)(C) of DOD's proposal says that munitions or munitions constituents that are "deposited" off an operational range do not fall within paragraph (1)'s exclusion from the definition of solid waste.  However, DOD's proposal does not define the word "deposited."   "Deposit" is one of several different actions that constitutes "disposal" under RCRA.[52]   Because paragraph (a) of the 2004 RRPI amends the definition of solid waste in RCRA, a court interpreting this language would certainly look to the definition of "disposal" in interpreting the word "deposited."  Again, because courts strive to give meaning to all words in a statute, "deposit" would likely be construed as meaning something different than the other actions that constitute disposal under RCRA.  Therefore, munitions that are discharged, injected, dumped, spilled or placed off an operational range (or on one, for that matter) would still fall within (a)(1)'s exclusion from RCRA's definition of solid waste.  Examples of such contamination include:

• Ø     groundwater contaminated by waste streams from the manufacture of munitions or munitions constituents (such as perchlorate, RDX, TNT, etc.) at hundreds of defense contractor facilities, such as the Kerr-McGee plant in Henderson, Nevada that is contaminating the entire downstream stretch of the Colorado River;
• Ø     contaminated groundwater from ammunition washout activities; and
• Ø     UXO and munitions-contaminated groundwater at Department of Energy facilities such as Los Alamos National Laboratory.

The broader reading of the 2004 RRPI could also preempt state and EPA regulation of the destruction of the nation's stockpile of chemical weapons such as nerve gas and mustard agent.  These munitions do not meet any of the criteria in  paragraph (a)(2), and thus would be exempt from the definition of solid waste under (a)(1).  We understand that there are 8 different chemical depots in the United States where such munitions are stored awaiting destruction. At most, if not all of these sites, states play a critical role in ensuring the safety of the destruction process through their RCRA permitting authorities.

States and EPA would also likely be preempted from regulating open burning and open detonation activities on operating ranges.  There is some evidence to suggest that open detonation of unexploded ordnance on ranges is a significant source of munitions contamination in groundwater.

Finally, this reading would also exempt from RCRA several categories of munitions that are currently regulated under EPA's "munitions rule."[53]  For example, used or fired munitions that are removed from an operational range for treatment or disposal other than by landfilling would no longer be subject to RCRA.[54]  Nor would munitions that have deteriorated or been damaged to the point that they cannot be put into serviceable condition and cannot reasonably be recycled or used for other purposes.[55]

III. A. 3.            DOD's proposed language may exempt defense contractor facilities from federal cleanup requirements under RCRA.

            DOD says that its proposed exemptions from RCRA do not include munitions contamination at defense contractor facilities.  We are concerned that this is not the case, and that the 2004 RRPI's exemptions from EPA authority under RCRA may extend to defense contractor facilities.  

            Our concern arises because of recently adopted definitions for "range" and "operational range."  The new definition of "range," codified at 10 U.S.C. § 101(e), provides:

"(3) The term 'range' means a designated land or water area set aside, managed, and used to conduct research, development, testing, and evaluation of military munitions, other ordnance, or weapon systems, or to train military personnel in their use and handling. Ranges include firing lines and positions, maneuver areas, firing lanes, test pads, detonation pads, impact areas, electronic scoring sites, buffer zones with restricted access and exclusionary areas, and airspace areas designated for military use according to regulations and procedures established by the Federal Aviation Administration such as special use airspace areas, military training routes, or other associated airspace."  

Certainly many defense contractors conduct "research and development," if not also  "testing and evaluation"  of military munitions, other ordnance, or weapons systems at their facilities.  Could these privately owned facilities be considered ranges?  It seems possible, if not likely, that they could, as there is nothing in the definition of "range" or "operational range" that limits ranges to land owned or leased by the United States.

Although the definition of "operational range" states that it means a range "under the jurisdiction, custody or control of the Secretary concerned," this phrase does not mean the range must be owned by the United States. [56]  We have not been able to identify any provision of the United States Code or the Code of Federal Regulations that defines the phrase "jurisdiction, custody or control."  Nor have we been able to find any decision of a federal court that defines the phrase.  Taken individually, none of these terms implies ownership.

Indeed, DOD has previously argued that facilities it does not own or lease may nonetheless be under its jurisdiction, custody, or control. In 1997, in the preamble to its proposed "Range Rule," DOD stated that it retained jurisdiction over military munitions on closed ranges that had been transferred to private ownership.[57]  And in the fall of 2001, DOD forwarded proposed legislative language to the Office of Management and Budget that appeared to define the Secretary of Defense's "jurisdiction" to include facilities no longer owned by, leased to, or otherwise possessed by DOD, but at which DOD is carrying out a response action under the Defense Environmental Restoration Program (DERP).[58] 

DOD - and attorneys for defense contractors -- could make similar arguments were these amendments to pass.  For example, they might assert that defense contractor facilities are under DOD "control"  because of contractual provisions that give it ownership of weapons or munitions, or some degree of control over their manufacture or use.  They might also assert that DOD has "jurisdiction" over facilities it does not own because the CERCLA National Contingency Plan designates DOD as the "removal response authority with respect to incidents involving DOD military weapons and munitions or weapons and munitions under the jurisdiction, custody, or control of DOD."[59] 

Furthermore, in the definition of "range," the term "designated" is undefined.  As far as we have been able to determine, there is no provision in the United States Code or the Code of Federal Regulations that establishes a procedure for "designating" a range. Nothing in the proposed definition explains or limits who designates a range, or how they designate one.  Could a military contractor designate a range on land it uses to test or manufacture munitions?  Perhaps.  Nothing in the legislation adopted by Congress prevents it.   

III. A. 4.            The 2004 RRPI may be read to preempt state authority to regulate munitions-related contamination at private defense contractor facilities.

Privately-owned federal contractor facilities are not shielded from regulation by the limits of a waiver of sovereign immunity, so simply exempting military munitions from RCRA's definition of solid waste would not preempt state regulation of such munitions at private contractor sites.  (As explained in the previous section, it would likely exempt them from EPA regulation under RCRA.)  However, new language in paragraph (a)(3) of the 2004 version of DOD's proposal may preclude states from defining military munitions excluded from the definition of solid waste under paragraph (a)(1) as hazardous waste under state laws. 

Paragraph (a)(3) provides "[n]othing in this section affects the authority of federal, state, [or other] regulatory authorities to determine when military munitions   . . . become hazardous waste for purposes of [RCRA], except for military munitions    . . . that are excluded from the definition of solid waste by this subsection."  This language clearly implies that states may not pass laws or regulations defining as solid waste any munitions that are excluded from the federal definition by the RRPI.  

Because (a)(1) excludes at least those munitions and constituents that were deposited incident to their normal use on operational ranges at contractor facilities (and may exclude nearly all munitions and their constituents at defense contractor facilities, depending on how it is read), (a)(3) may preempt states from regulating at least some categories of UXO and other munitions contamination at private contractor sites.  Thus, the RRPI could preempt state authority over the cleanup of perchlorate-contaminated groundwater at DOD contractor facilities under RCRA or analogous state laws.  It could even preclude states from regulating the management of waste streams from the production of propellants and explosives used in military munitions - thus potentially leading to even more groundwater contamination by such toxins.

III. A. 5.             DOD's proposal does not codify existing policy or practice.

            DOD has repeatedly asserted that its legislative proposals, including the 2004 RRPI, simply codify existing regulatory practice and policy.  Specifically, DOD asserts these amendments simply codify EPA's "military munitions rule." [60] These assertions are simply untrue. The 2004 RRPI represents a near 180 degree turnaround from the munitions rule.  To understand why, it's necessary to briefly explain key RCRA provisions and summarize the munitions rule. 

            RCRA contains a broad statutory definition of solid waste and hazardous waste.[61]  Statutory hazardous wastes are a subset of statutory solid wastes. RCRA also directs the Environmental Protection Agency to define a subset of statutory solid and hazardous wastes as regulatory solid and hazardous wastes.[62]  Regulatory hazardous wastes are a subset of regulatory solid wastes.  The key difference between a regulatory and a statutory hazardous waste is that the regulatory hazardous waste is subject to both RCRA's cleanup authorities and permitting authorities, while statutory hazardous wastes are only subject to RCRA's cleanup authorities, not its permitting requirements.[63]

In 1992, Congress passed the Federal Facility Compliance Act.[64]  In that Act, Congress directed EPA to promulgate regulations defining when military munitions become regulatory hazardous wastes.[65]  Because regulatory hazardous wastes are a subset of statutory solid wastes, passage of the Federal Facility Compliance Act means that military munitions are statutory solid wastes if they meet the statutory definition, i.e., if they have been "discarded."[66]

In 1995, EPA published its proposed "munitions rule" in the Federal Register.[67] Among other things, EPA proposed that munitions used for their intended purpose (including research, development, testing and training) are not regulatory hazardous wastes, such that DOD would not need a RCRA permit to use munitions for such purposes.[68]  EPA also proposed to define when used or fired military munitions would be statutory solid wastes.[69]  Specifically, EPA proposed that munitions discharged during military activities at ranges would be statutory solid wastes when the munitions were left in place at the time the range closed or was transferred out of DOD control.  EPA also proposed that this provision would terminate upon DOD's promulgation of a rule governing the cleanup of munitions on closed and transferred ranges, and that DOD's rule would supersede all RCRA authority over such munitions.[70]

Some commenters on the proposed rule noted that the proposal to "sunset" regulation of discharged munitions as statutory solid wastes upon promulgation of a DOD rule directly conflicted with the Federal Facility Compliance Act, and that EPA had no authority to preempt state authority to regulate discharged munitions.  Commenters also argued that DOD had no authority to promulgate such a rule.

EPA's final munitions rule contained the proposal that munitions used for their intended purpose are not regulatory hazardous wastes.[71]  EPA postponed action on the proposal to define when discharged munitions would be statutory solid wastes, as well as the sunset provision.[72]  EPA's decision to postpone action was based partly on the comments objecting it had no authority to preempt state authority, and partly on the fact that DOD had not promulgated its "range rule."[73]  EPA stated that it would further evaluate the legal arguments, and would also evaluate DOD's proposed range rule; if DOD failed to promulgate the rule, or if EPA found the rule to be insufficiently protective, EPA stated it would be prepared to address the issue under Federal environmental laws.[74]  DOD did publish a proposed range rule, but following strong opposition from states and others, never published a final range rule.[75]

EPA's decision to postpone promulgation of this provision does not mean that discharged munitions on ranges are not statutory solid wastes.  As noted above, under the Federal Facility Compliance Act, if such munitions meet the statutory definition of "discarded," they are statutory solid wastes.[76] 

Thus, the current state of the law is that:

• munitions use does not require a RCRA permit; but
• used or fired munitions are subject to RCRA's cleanup authorities in appropriate circumstances;
• contamination from munitions constituents such as perchlorate, RDX, and TNT is subject to RCRA's cleanup authorities in appropriate circumstances; and
• nothing in the munitions rule preempts states from adopting additional or more stringent requirements than those set forth in the rule.

            The 2004 RRPI differs from the munitions rule in at least four significant ways. First, this statutory change would likely preclude states and EPA from using RCRA's imminent and substantial endangerment authorities to address most (or all) munitions-related contamination on operational ranges (and perhaps elsewhere), because the 2004 RRPI exempts certain munitions from RCRA's statutory definition of solid waste.[77]

            Second, RRPI likely preempts state authority to require the cleanup of most munitions-related contamination on operational ranges, including unexploded ordnance and perchlorate contamination, under RCRA.[78]  (Again, if read broadly as described in III.A.2., the preemptive effect would encompass nearly all munitions contamination.)  In contrast, the munitions rule does not preempt state authority at all.  In the preamble to the final rule, EPA expressly acknowledged that under RCRA sections 3006 and 3009, "States may adopt requirements with respect to military munitions that are more stringent or broader in scope than the Federal requirements."[79]

Third, by including munitions constituents in paragraphs (a)(1) and (a)(2), DOD's proposal likely preempts state and EPA authority over munitions-related and explosives-related constituents (e.g., perchlorate, TNT, white phosphorous) that have leached from the munitions and are contaminating the environment.  In contrast, the munitions rule does not address munitions constituents at all, and does not prevent EPA or the states from requiring cleanup of these chemicals when they leach from munitions into the soil or groundwater.[80]  

Fourth, as described in III.A.4., above, the 2004 RRPI may preempt states from regulating certain categories of munitions and related contamination at defense contractor sites.  The munitions rule does not preempt state authorities over defense contractors.  

Finally, if read broadly as described in III.A.2 above, the 2004 RRPI would also exempt from RCRA several categories of munitions that are currently regulated under EPA's munitions rule, including used or fired munitions that are removed from an operational range for treatment or disposal other than by landfilling, and munitions that have deteriorated or been damaged to the point that they cannot be put into serviceable condition and cannot reasonably be recycled or used for other purposes.  

III. B.  DOD's proposed amendment to CERCLA likely impairs state and EPA cleanup authorities, and may bar cost recovery and natural resource damage claims regarding munitions-related contamination.

DOD's 2004 proposed amendment to CERCLA provides:

"(b)  Definition of Release. -

"(1)  The term 'release' as used in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §9601 et seq.), does not include the deposit or presence on an operational range of any military munitions, including unexploded ordnance, and the constituents thereof, that are or have been deposited thereon incident to their normal and expected use, and remain thereon. 

(2)  Paragraph (1) shall not apply to military munitions, including unexploded ordnance, and constituents thereof, that -

"(A) migrate off an operational range; or

"(B) are deposited off of an operational range; or

"(C) remain on the range once the range ceases to be an operational range.

"(3) Notwithstanding the provisions of paragraph (1), the authority of the President under section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §9606(a)), to take action because there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance includes the authority to take action because of the deposit or presence on an operational range of any military munitions, including unexploded ordnance, or the constituents thereof that are or have been deposited thereon incident to their normal and expected use and remain thereon.

"(c)  Definition of Constituents.-For purposes of this section, the term 'constituents' means any materials originating from military munitions, including unexploded ordnance, explosive and non-explosive materials, and emission, degradation, or breakdown products of such munitions.

"(d)  Change in Range Status.-Nothing in this section affects the legal requirements applicable to military munitions, including unexploded ordnance, and the constituents thereof, that have been deposited on an operational range, once the range ceases to be an operational range.

"(e) Nothing in this section affects the authority of the Department to protect the environment, safety, and health on operational ranges."

DOD's proposed amendment to CERCLA will likely impair EPA and state authorities under CERCLA and related state laws to require the investigation and cleanup of munitions-related contamination in many cases.  It is clearly intended to preempt such authorities in most, if not all, situations on operational ranges.  It may also impair state and EPA authorities on ranges that are no longer operational.  And it may preclude parties that spend their own money cleaning up DOD's munitions-related contamination on former DOD facilities from recovering their response costs from DOD.  Finally, it may preclude states and Indian Tribes from recovering damages for injuries to their natural resources that were caused by military munitions. 

DOD's language may have all these impacts because under CERCLA, "release" is a fundamental jurisdictional prerequisite.  The scope of nearly all CERCLA authorities or requirements, including sections 104 (removal and remedial authority), 106 (imminent and substantial endangerment order authority), 107 (liability for response costs and natural resource damages), and 120 (relating to federal facilities) is premised on the existence of a "release" or a "threatened release" of a "hazardous substance, pollutant or contaminant."

III. B. 1.            DOD's proposed language likely encompasses not only used and fired munitions, but munitions and related contamination from production, maintenance activities, and proper or even improper waste management activities. 

Like DOD's proposed definition of "solid waste," the proposed definition of "release" under CERCLA is somewhat ambiguous.  Paragraph (1) of DOD's proposed definition contains a sentence structure that is very similar to its proposed definition of "solid waste."  And again, the phrase "that are or have been deposited thereon incident to their normal and expected use, and remain thereon" could modify either "military munitions" or "unexploded ordnance, and the constituents thereof."  If it modifies "military munitions," then the exemption is limited to those munitions that were deposited on an operational range incident to their normal and intended use.  But if it modifies "unexploded ordnance, and the constituents thereof," then any military munitions or constituents that have been deposited or are present on an operational range are excluded, regardless of whether such presence was the result of their normal and intended use.  

The more natural reading of this language is for the phrase "that are or have been deposited thereon incident to their normal and expected use, and remain thereon" to modify "unexploded ordnance, and the constituents thereof."  That's because the earlier part of the sentence already includes the "deposit" of military munitions on an operational range.  Consequently, (b)(1) would exempt from CERCLA and state superfund type laws any munitions-related contamination on an operational range, not just contamination associated with the use of munitions in training and testing.  EPA would have no CERCLA authority to require the investigation or cleanup of contamination on an operational range (including ranges on contractor-wined facilities) that arose from any of the following activities:  

• spills, leaks, or even intentional disposal of wastes from the production of munitions propellants or constituents, even if such contamination were migrating offsite;
• spills, leaks, or even intentional disposal of wastes from ammunition maintenance activities, even if such contamination were migrating offsite (as is occurring at the Pueblo Chemical Depot in Colorado);
• the use or firing of munitions on a range, even if such contamination were migrating offsite; or
• burial of munitions on a range.

II. B. 2.           DOD's proposal would impair several federal cleanup authorities at operational ranges.

By excluding munitions on operational ranges from CERCLA's definition of "release," DOD's proposed amendment will likely impair EPA's authority under CERCLA to require investigation or remediation of most, if not all, munitions-related environmental contamination on operational ranges.   

For example, DOD's proposed amendment appears to eliminate existing EPA authority to gather information under CERCLA § 104(e) regarding munitions-related and explosives-related contamination.  Without this authority, it would be difficult indeed for EPA to determine whether munitions were contaminating drinking water sources under an operational range.  Consequently, the fact that RRPI preserves EPA's § 106 imminent hazard authority is largely meaningless.  Nationwide, there are at least 40 DOD facilities with known perchlorate contamination of groundwater or surface water.  Nineteen of these facilities are on the Superfund National Priorities List.[81]   

DOD's proposed amendment also appears to remove cleanup of munitions-related contamination from the scope of CERCLA section 120 interagency agreements for sites on the National Priorities List.  This means that EPA will no longer have authority to select (or concur in) remedies for munitions- and explosives-related contamination at operating ranges on the 14 NPL sites mentioned above - or indeed, any of the approximately 129 DOD facilities currently on the NPL.    

This provision may also be read to eliminate the requirement that investigation and cleanup of munitions-related contaminants on operational ranges be conducted according to standards that apply to all other CERCLA cleanups.[82]  By removing these public involvement, procedural, substantive and technical safeguards, subsection (b) would severely undermine the goal of achieving cleanups that adequately protect human health and the environment.  

III. B. 3.            DOD's proposed definition of release will likely impair state superfund-type authorities at operational ranges.

The change in the definition of "release" also may narrow the scope of state authority under state superfund-type laws, because it may narrow CERCLA's waiver of immunity.  CERCLA's waiver of immunity includes state laws "concerning removal and remedial action."[83]  CERCLA's definitions of "removal" and "remedial action" are limited by the definition of "release."[84]  Thus, by excluding the "deposit or presence on an operational range of any explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that are or have been deposited thereon incident to their normal and expected use" from the definition of "release," this provision likely precludes state superfund authority over munitions-related contamination on operational ranges.  DOD's language would likely impair state authority over munitions contamination that arose from any of the following activities:  

• spills, leaks, or even intentional disposal of wastes from the production of munitions propellants or constituents, even if such contamination were migrating offsite;
• spills, leaks, or even intentional disposal of wastes from ammunition maintenance activities (such as the ammunition washout that created the TNT plume at Pueblo Chemical Depot), even if such contamination were migrating offsite;
• the use or firing of munitions on a range, even if such contamination were migrating offsite; or
• burial of munitions on a range, even if such contamination were migrating offsite.

III. B. 4.           DOD's proposal may impair state and EPA superfund-type cleanup authorities on ranges that are no longer operational.

The 2004 RRPI may also impact state and EPA authority to require cleanup of 16 million acres of closed and transferred ranges that DOD estimates may be contaminated with UXO and munitions constituents.  (Many of these ranges are now in private ownership.)   On the one hand, proposed (b)(2)(C) may be read to suggest that once a range ceases to be operational, the presence of any munitions that remain on the range constitutes a "release."  It doesn't specifically state that the presence of such munitions contamination is a release, but it seems to permit such an argument.   

On the other hand, under DOD's proposal, the initial deposit of the munition on the range is likely still excluded from the definition of release.  This is because CERCLA defines a "release" as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)."[85]  However, the UXO that remains on an operational range after it has closed is not being spilled, leaked, poured, etc.  It's just there.  Thus, DOD may argue that the mere presence of unexploded ordnance on a now-closed range still does not constitute a release.  Because this argument would be made in the context of a dispute between DOD and a state over the scope of CERCLA's waiver of sovereign immunity, we are concerned that a court would give undue deference to DOD's position to reach a construction of the statute that results in a narrower waiver.  

III. B. 5.            DOD's proposed definition of release may be read to impair state and EPA authority over munitions-related contamination at contractor-owned facilities.

As noted above, the definition of "operational range" may include land owned by defense contractors.[86]   The 2004 RRPI could preclude EPA from using its CERCLA authorities to require investigation or cleanup of munitions-related contamination at operational ranges on contractor-owned lands. 

To the extent that RRPI narrows CERCLA's waiver of sovereign immunity, it would not impact state authority at operational ranges on contractor-owned facilities, because such facilities do not have the shield of sovereign immunity.  However, there are states whose superfund-type laws are tied to definitions in CERCLA.  In such states, DOD's proposed definition of release may prevent the state from using its superfund law to require a DOD contractor to clean up munitions contamination at its facility.

III. B. 6.            DOD's proposal may shift the costs of cleaning up munitions-related contamination to states, local governments, water utilities, and private parties by precluding cost recovery claims against DOD.

DOD's proposal could shift the costs for cleaning up munitions-related contamination to states, local governments, water suppliers, farmers and others by precluding CERCLA cost recovery claims against DOD.  Under CERCLA, a person who incurs costs in responding to a release of a hazardous substance may seek to recover those costs from liable parties under CERCLA § 107.   In the case of a former military range now in private ownership, DOD's proposed language likely insulates it from CERCLA liability as follows.  A party that incurred costs cleaning up UXO on such a range that sought to recover its costs from DOD under CERCLA would have to demonstrate that DOD met one of the four categories of liable parties described in CERCLA § 107(a)(1)-(4).  DOD clearly would not be a current owner or operator (§ 107(a)(1)), an arranger (§ 107(a)(3)), or a transporter (§ 107(a)(4)). It could only be liable under § 107(a)(2) as a "person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of."  Thus, the person would have to show that they incurred costs responding to a "release" of a hazardous substance, that UXO is a "hazardous substance," and that DOD owned the facility at which the UXO was disposed at the time of disposal.  CERCLA defines "hazardous substance" to include hazardous wastes having a characteristic identified under EPA RCRA regulations.  One of those characteristics is reactivity, and "live" UXO exhibits the characteristic of reactivity.  So, if UXO is a characteristic hazardous waste, it is a hazardous substance.

Two aspects of DOD's proposal may serve to defeat any such cost recovery claim.  First, it appears that under revised (a)(2)(D), munitions contamination that remains on a range after the range is no longer an operational range may be considered a solid waste, and thus potentially a hazardous waste and a hazardous substance.  But a range may only cease to be "operational" when the land has been transferred out of federal ownership, or possibly not until the transferred land has been put to a use that is inconsistent with being a range.  In either case, any munitions contamination on the range would not become a solid waste (and thus a hazardous substance) until DOD no longer owns the land.  If so, cost recovery claims against DOD under CERCLA § 107(a)(2) would fail.

Second, as described above, DOD may argue that the mere presence of unexploded ordnance on a now-closed range still does not constitute a release.  If successful, this argument would also defeat a cost recovery claim.

Such cost recovery claims are not hypothetical.  Private entities are spending their own money to clean up DOD's UXO at former ranges because the DOD cleanup program does not have the resources to address the existing priorities.  For example, several developers have spent millions of dollars to investigate and clean up potential UXO contamination at the former Lowry Bombing Range near Denver so they can proceed with plans to build housing and commercial developments.  One of these developers recently filed a CERCLA cost recovery suit.[87] 

The number of cases where private entities pay to clean up DOD's contamination will likely increase substantially over the coming years because the federal budget for cleaning up UXO on closed ranges (a subset of the Formerly Used Defense Site program) is not adequate to address the number of sites requiring cleanup. The General Accounting Office recently released a report that found "DOD has made limited progress in its program to identify, assess, and clean up sites that may be contaminated with military munitions."[88]  This same report found that at current funding levels, "cleanup at the remaining munitions sites in DOD's current inventory could take from 75 to 330 years to complete."[89]  However, these former ranges are increasingly subject to development pressures.  Under DOD's proposed legislation, the developers at the Lowry Bombing Range, and others like them, will likely have to bear the financial responsibility for cleaning up DOD's mess.

III. B. 7.            DOD's proposed definition of release may also be read to impair claims for CERCLA response costs or for natural resource damages.

Natural resource damages under CERCLA may be sought from the same classes of persons as may be liable for response costs.  Therefore, DOD may be able to assert the same defenses to a natural resource damage claim for injuries to groundwater or other natural resources described above regarding cost recovery claims. 

III. B. 8.            Preserving EPA's CERCLA § 106 order authority does not does not ensure effective oversight.

            DOD points out that paragraph (3) of its proposal preserves EPA's authority to issue a CERCLA administrative order under section 106(a).   In the states' view, this does not provide any assurance of effective oversight.  EPA has never once issued a CERCLA § 106 order to DOD.  EPA may not issue such orders without the concurrence of the Department of Justice.[90] Further, under the 2004 RRPI, EPA has no information gathering authority on operational ranges.  Thus, it is difficult to see how EPA could obtain information necessary to support issuance of an imminent hazard order under CERCLA § 106.

III.C.            DOD's proposed amendments to the Clean Air Act would reverse the fundamental principle of that Act to prevent unhealthy levels of air pollution.

            Section 176 of the Clean Air Act provides that the Federal Government must ensure that its significant actions "conform" to requirements of the applicable state air quality implementation plan, thereby ensuring that federal actions will not cause or contribute to any violation of the National Ambient Air Quality Standards (NAAQS).[91]  These are health-based limits on common serious pollutants like ozone, nitrogen oxides, and carbon monoxide, which cause health effects ranging from increased rates of asthma and hospital admissions to premature death.[92]  And section 118 of the Clean Air Act already makes clear that the Federal Government is required to comply with state and federal air pollution control requirements like any other polluter. Together, these provisions clearly establish that federal entities, like DOD, cannot add to dirty air problems and must do their part to reduce air pollution.

The 2004 RRPI would exempt DOD, for the first three years of any significant federal "military readiness action," from the requirements of § 176(c) of the Clean Air Act.  That provision requires any federal agency, before it proceeds with a significant federal action, to complete a conformity analysis for the lifespan of the action and make a determination that the action will not cause or contribute to new violations of NAAQS, increased frequency of violations, or a delay in attaining NAAQS.  In addition, it would allow a state[93] to be considered legally in compliance with some air quality standards even if, in fact, those standards are violated - if the violation is caused by pollutants from DOD's action.  And because there is also no limit on the definition of what constitutes a particular "activity," multiple re-basing or training activities could be redefined from year to year, thereby allowing successive three-year exemptions from general conformity -- essentially obviating its intended purpose. So, DOD's proposal may permanently legalize unhealthy levels of air pollution near military bases.  This would violate a bedrock principle of the Clean Air Act, which makes clear that the goal of the Act is to actually attain and maintain air that is "requisite to protect public health" throughout the nation, not just in areas geographically removed from military bases.[94]  Under the DOD proposal, people living in areas near military bases would receive less protection under the Clean Air Act.

DOD's proposal would force states to accept unhealthy levels of air pollution for their citizens or require private industries or other governmental agencies to make significant cuts in their air pollution emissions. DOD has suggested that the proposed exemption from conformity requirements would not impose an undue burden on states because the total quantities of pollutants is not likely to be large. DOD gave examples of actions that would use ½ of 1% of the region's total NOx budget.  However, nothing in the proposed legislation would limit the amount of pollution that would be exempted from conformity requirements.  And it is also important to understand how competitive the pollution budgeting situation is in many non-attainment areas.  The amounts used in DOD's examples are significant in that environment; highway projects regarded by local authorities as critical have been stopped or delayed over these kinds of amounts.  

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