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Enforcement

The Environmental Challenge of Military Munitions and Federal Facilities

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Summary

To safeguard human health and the environment, EPA and the Department of Defense (DoD) must address the contamination legacy left by military munitions and explosives of concern (MEC). MEC are unexploded ordnance (UXO) and other hazardous munitions materials left behind from military live-fire training or testing, open burning and open detonation, and munitions treatment, destruction and burial activities. 
 
According to a December 2003 Government Accountability Office (GAO) report, DoD suspects or acknowledges contamination by military munitions of an estimated 15 million acres of land. DoD estimates cleanup of these sites will cost from $8 billion to $35 billion. DoD transferred control of millions of acres of land used for manufacturing munitions to non-Federal entities or other Federal agencies to use for purposes other than their original intent. Most of these properties are now Formerly Used Defense Sites (FUDS). 
 
The actual and potential human health and environmental effects of exposure to MEC or munitions constituents can vary from localized to widespread. Besides the obvious danger of exploding UXO, harm can also result when humans and the environment are exposed to chemical warfare agents or other hazardous substances used in munitions. Contamination of soil and groundwater is a big concern. 
 

Regulatory Authorities

 
EPA oversees DoD’s cleanup of MEC on Superfund sites primarily through CERCLA §120 Federal Facility Agreements, or as hazardous waste under RCRA Subtitle C. 
 
CERCLA is the preferred response mechanism for munitions response actions. However, EPA recognizes that there are situations where it is more appropriate to use RCRA or another authority for a munitions response. Other authorities besides CERCLA that may be appropriate for a given munitions response include, but are not limited to, the following: 
 
  • Safe Drinking Water Act (42 U.S.C. §300f et seq.; 40 CFR §§ 141-149)
  • Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.; 40 CFR §§ 240-282) 
  • Clean Water Act (33 U.S.C. §1251; 40 CFR §§ 100-136, 140, 230-233, 401-471, 501-503) 
  • Clean Air Act (42 U.S.C. §§ 7401, 7412(r) and 7603)
  • State Superfund Laws 
  • State RCRA Programs 
  • Other State hazardous waste management programs 
  • Tribal hazardous waste management programs 

EPA Regulation and Enforcement

 
CERCLA Section 120(a) (2) prohibits Federal Agencies from adopting or utilizing any guidelines, rules, regulations, and criteria for CERCLA preliminary assessments and remedial actions that are inconsistent with EPA’s guidelines, rules, regulations, and criteria. Consistency with the National Contingency Plan (NCP) and consideration of EPA policy and guidelines apply to every phase of response. 
 
Munitions Response Guidelines
 
EPA issued its Interim Munitions Response Guideline (OSWER Directive 9200.1-101) on July 27, 2010 to provide a framework to EPA Regional Offices overseeing responses involving MEC at locations other than operational ranges. The Guidelines focus on the unique aspects of responding to sites where explosive hazards may pose an additional, or the principal threat. The Guidelines may be useful in situations involving enforcement, permitting, and emergency or time critical actions where MEC/MC are involved.
 
For the most part, the Guidelines address situations where a DoD Component will be conducting the munitions response action as the Lead Agency and EPA is responsible for regulatory oversight. The Guidelines may also be relevant when EPA or other federal agencies have the lead. 
 
Munitions Rule
 
On February 12, 1997, EPA promulgated the Military Munitions Rule, deciding not to impose the regulatory requirements of RCRA Subtitle C on operational military ranges. Specifically, military munitions as they relate to solid waste and their intended use, are not discarded, not solid wastes under RCRA’s Subtitle C regulations, and consequently not regulated as hazardous waste. On the other hand, if a military munitions are used or fired, land off-range and are not promptly rendered safe or retrieved, the munitions would be a solid waste and potentially subject to the corrective action authorities under RCRA sections 3004(u), 3004(v) and 3008(h) or the imminent and substantial endangerment authorities of RCRA section 7003.
 
Under the Military Munitions Rule, military munitions used as intended in training or in research, development, testing or evaluation would remain excluded from the regulatory definition of solid waste even if the facility where that use occurred becomes a location other than an operational range because that regulatory exclusion is not limited to operational ranges. However, it is EPA's long held view that MEC resulting from military munitions used for their intended purpose, that remain on “locations other than operational ranges” would at some point become RCRA statutory solid waste. As a result, it potentially could be subject to the imminent and substantial endangerment authorities of RCRA section 7003. (See: Munitions on Closed Military Range)
 
As a result, a range that is closed or transferred and becomes a location other than an operational range does not become a treatment, storage, or disposal facility potentially subject to the regulatory requirement under RCRA to obtain a hazardous waste permit or conduct corrective action even if military munitions remain at the location. However, when a munitions response action is carried out (whether the response is compelled under a RCRA 7003 order or is otherwise carried out), and the response occurs at a location other than an operational range, the response activity is not covered by the intended use exemption from the regulatory definition of solid waste. Therefore, the response activity would be subject to any applicable RCRA Subtitle C hazardous waste regulations if the material meets a listing description (see 40 CFR part 261, subpart D) or exhibits any of the characteristics of ignitability, corrosivity, reactivity, or toxicity under the criteria of 40 CFR parts 261.21, 261.22, 261.23 or 261.24. 
 
Operational Ranges
 
No exception from RCRA regulation or exemption from CERCLA's remedial authorities exists for disposal sites on operational ranges. However, EPA seeks to avoid interference with DoD's national security mission regarding training and readiness. Therefore, EPA's practice is to exercise its enforcement discretion to except from RCRA regulation MEC used for its intended purpose and remaining on operational ranges. However, EPA has used the Agency's remedial cleanup enforcement authorities environment at operational ranges when necessary to ensure protection of public health and the environment. 
 
Emergency Response
 
An explosives or munitions emergency response may be taken if there is an imminent and substantial threat to human health or the environment and which requires immediate and expeditious action to eliminate the threat. The Military Munitions Rule provides that “explosives or munitions emergency response specialists base any determination of the need for an emergency action upon an ‘actual or potential immediate threat to human health, including safety, or the environment, including property."
 
The RCRA Munitions Rule exempts explosives or munitions emergency or time critical responses from the RCRA Subtitle C hazardous waste regulatory requirements, including notifications, however, the facility must keep a record of the response. Some States, however, have added additional requirements in adopting the RCRA Munitions Rule (e.g., a notification requirement). 
 

DOD’S Responsibilities

The 1986 amendments to CERCLA, (SARA § 211) formally established the Defense Environmental Restoration Program (DERP). SARA and E.O. 12580 required DERP be conducted consistent with CERCLA § 120 in consultation with EPA, states, and tribes, and that state, tribal, and local governments be able to comment on response actions (except in emergencies). 
 
DOD’s primary cleanup responsibilities under CERCLA regarding MEC include:
 
  • Developing and maintaining an inventory of MEC contaminated land and sites
  • Performing site characterization and risk assessment
  • Coordinating with other federal agencies or third parties which may have current possession of the land
  • Performing appropriate removal and remedial actions

State Authority

 
Nothing in CERCLA, RCRA or in EPA’s Military Munitions Rule bars a State from exercising its own solid and hazardous waste authority over waste military munitions, including MEC/MC, regardless of whether they have adopted the Military Munitions Rule as part of their authorized RCRA program. State equivalent authorities can cover the major steps in the process needed to manage MEC from discovery to destruction. DoD and/or other appropriate responsible parties have an obligation at “locations other than operational ranges” to clean up MEC when required under state and federal statutory authorities, and such cleanup may be subject to both state and EPA oversight. 
 

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