Military Munitions And Environmental Law

Military Munitions and Environmental Law

Environmental Law and Management

August 25, 2005

Introduction

In the United States, UXO has become a major issue in the environmental arena because of the hazards and affects on an estimated 15 million acres in the U.S. alone. UXO is found in areas where military training occurred, most of this training occurred during the World War I and II periods and continues to this day on active military ranges. Unexploded Ordnance (UXO) is defined by the Department of Defense (DoD) as:

Military munitions that (A) have been primed, fuzed, armed, or otherwise prepared for action; (B) have been fired, dropped, launched, projected, or placed in such a manner as to constitute a hazard to operations, installations, personnel, or material; and (C) remain unexploded either by malfunction, design, or any other cause. (glossary, p. 1)

UXO can be found in all 50 states, and almost every country in the world. UXO is a problem because of the hazard it causes to both the environment and to the human population.

Who is involved with UXO?

The major organizations that are involved in the process are the DoD, the U.S. Environmental Protection Agency (EPA), and the individual state environmental protection organizations.

With so much property at risk and the large risk posed to the human populace many organizations have become involved in the clean up of UXO. The DoD is the lead agency responsible for cleaning up UXO throughout the U.S. but has come under heavy scrutiny from environmental groups and federal and state regulators for the way in which it has handled the job. The laws that govern who has the responsibility for UXO clean up and how and to what level of clean up is required is a problem that very few of the organizations involved can agree upon.

Laws and regulations that govern UXO responses

There are several major laws, regulations, and rules that govern UXO and who and what will be done to protect the environment and the public from the hazards of UXO. These include but are not limited to: The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), The National Contingency Plan (NCP), The Resource Conservation and Recovery Act (RCRA), The Federal Facilities Compliance Act (FFCA), The Defense Environmental Restoration Program (DERP), The DoD Explosive Safety Board 6055.9, The EPA Munitions Rule, and the DoD Proposed Range Rule.

As with most environmental law, the interpretation of the laws and rules mentioned above are ambiguous and lead to many disputes between the parties involved. The major disputes seem to be: Who is the lead authority on the clean up of UXO and who makes the decision on what level of cleanup provides enough protection for the environment and local populace? These questions are complex and for each of the organizations involved the answers have major financial impacts on both the organizations involved and the tax paying public.

The system, and it's many flaws

CERCLA was implemented under the NCP in 1980. Both NCP and CERCLA detail a systematic approach to investigating and evaluating hazardous waste sites. (UXOInfo.com, CERCLA). CERCLA itself does not directly apply to UXO because UXO is considered a solid waste not a hazardous waste. This has the led the DoD to approach UXO investigations in a "CERCLA like" (Fields, T, 1999) process. Many federal and state regulators do not believe this CERCLA like process meet the intended process and have continually argued this point via letter writing campaigns, joint meetings and through locally established advisory boards.

In 1992, Congress passed the FFCA which directed the EPA to promulgate regulation defining when a former military munitions become hazardous waste under RCRA (Section 107, FFCA (1992)). Since the EPA has given most state environmental regulators authority over wastes that are managed under RCRA, the state regulators were very happy with this development. The EPA produced the Munitions Rule in 1997, but withheld making a decision as to when military munitions become hazardous waste until the DoD finished a proposed Range Rule that would spell out when and what they would do in issues that concerned military munitions and UXO. This of course was looked at very negatively by the state regulators and environmental groups because they felt Congress was very clear as to whom should have the authority to make these decisions. To date, the EPA has still not promulgated a rule as to when UXO or former military munitions fall under the purview of RCRA and in 2000 the DoD gave up on trying to produce a range rule in favor of a DoD regulation, which to date has not been promulgated either.

Why is there such controversy?

In December 2003, the General Accounting Office (GAO) released a report titled, DOD Needs to Develop a Comprehensive Approach for Cleaning Up Contaminated Sites. In this report the GAO estimates that there are 15 million acres of land that are contaminated with UXO and in general the services (Army, Navy, Air Force) have done a poor job cataloging where these sites are, and exactly how many sites there are. (p. 3). The DoD has stated it believes the cost to clean the areas contaminated by UXO will cost between $8 and $35 billion dollars. Every single organization outside the DoD feels this number is grossly under estimated and that clean up could cost as much as $400 billion.

With the above numbers in mind, it is no wonder the DoD wants to maintain total control of what level of clean up is required and when and where to do that clean up. With current budget shortfalls and the ongoing global war on terror the funding requirements for this type of environmental clean up are staggering.

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