Cleaning Up Munitions

Cleanup of Munitions:One of EPA's largest environmental challenges

• Cleanup of military munitions has the potential to be the largest environmental cleanup

program ever to be implemented in the United States;– Some former ranges each cover 100 to 500 square miles;– Many of these properties are Formerly Used Defense Sites (FUDS) where the military has relinquished

control. • Many FUDs now used for civilian purposes include residential neighborhoods, yet remain

contaminated by military munitions.• DoD’s estimates to Congress state that military munitions contaminate more than 1600

sites on other than operational ranges involving some 15 million acres of land within the continental United States.

– DoD has told Congress it will take more than $13 billion to clean up military munitions. • There are significant numbers of underwater munitions sites presenting daunting

technical and funding issues.• More than 3 million acres of public land managed by DOI contain munitions

contamination, the Agency reports:– Much of this property is accessible to the public;– Munitions contamination on public land poses a risk to DOI employees, contractors, and the public;– Most of this property was in the possession of, or controlled, by DoD and then returned or transferred to

DOI agencies;– Many land transfers occurred prior to any characterization or remedial activities;

• Currently, FWS and BLM have completed inventories of their properties with munitions, and a DOI-wide consolidated inventory is being developed.

EPA Differences with DoDon Munitions

• Longstanding policy disagreements regarding the cleanup of munitions and explosives of concern (MEC).

• Overarching issue is DoD’s resistance to independent regulatory oversight.

Action Needed • OSWER, OECA AA support for EPA position that

– MEC becomes a RCRA statutory solid waste at point in time EPA determines;

• That point in time most often is when MEC is left behind, unaddressed, at a former range;

– Neither DERP Nor the Military Munitions Response Program Trump CERCLA

• DERP and the MMRP requirements apply to funding, not the underlying DoD CERCLA cleanup liability.

• EPA has oversight authority under CERCLA § 120 interagency agreements over munitions sites within DoD NPL facilities included in DoD’s Military Munitions Response Program.

• DERP and MMRP funding requirements can be accommodated within the framework of a CERCLA § 120 IAG/FFA.

Next Steps • EPA should:

– Issue its Munitions Response Guidance to the Regions.

– Consider promulgating a formal rule codifying its position that

• MEC is subject to RCRA and CERCLA in the same manner as any other contamination and

• Military services are obligated to clean up MEC pursuant to state and Federal statutory environmental cleanup authorities subject to the statutorily required state and EPA oversight.

– Consider legislative or regulatory changes to correct DoD’s legally incorrect position that MEC left on other than operational ranges never become subject to RCRA or CERCLA unless DoD has actively managed the munitions.

Background • Congress added RCRA 3004(y), in the 1992 Federal Facilities

Compliance Act, which directs EPA, among other things, to promulgate rules that identify when military munitions become regulatory hazardous waste for purposes of RCRA Subtitle C.

• On February 12, 1997, EPA promulgated the Munitions Rule, deciding

not to impose the regulatory requirements of RCRA Subtitle C on operational military ranges. [62 Fed. Reg. 6622.]

• The oversight issue has resulted in a stalemate since EPA postponed formal rulemaking regarding other than operational ranges in the 1997 Final Military Munitions Rule.

• Since 1997, DoD’s unwillingness to acknowledge explicitly EPA or State oversight authority has been presented publicly as stemming from fear of regulatory interference with military operational ranges.

EPA Munitions Response Guidelines

• Guidelines originally written in 2001 (called OE Policy) to assist Remedial Project Managers overseeing munitions responses

• The Guidelines build, and elaborate on, the joint Department of Defense (DoD)/EPA Interim Final Management Principles for Implementing Response Actions at Closed, Transferring, and Transferred (CTT) Ranges, signed March 7, 2000

• Guidelines have gone through many iterations based on EPA HQ, Regions, DoD, State and public review

• FFRRO worked extensively with DoD in developing the Guidelines

What the Guidelines Do• Provide a framework for field staff to assess the potential hazards

from munitions/explosives of concern (MEC) at munitions sites and make informed decision regarding site cleanup

• Guidelines focus on the unique aspects of responding to sites where explosive hazards may pose an additional, or the principal threat, such as at munitions response sites

• Explain the roles of DoD as the lead agency and EPA as the agency with oversight authority

• Explain the DoD procedures and policies for addressing munitions sites

Scope of Guidelines• Apply to non-operational ranges and other

sites where explosives hazards from MEC or environmental contamination from munitions constituents (MC) are known or suspected to be present

• Guidelines may also be relevant when EPA or other Federal agencies have the lead

Elements of Guidelines• The Guidelines include information on:

– Considerations for characterizing munitions sites– Explosive safety considerations– Importance of stakeholder involvement, including

public, and federal, state, and local regulators– EPA’s policy for closed and transferring ranges– Use and evaluation of land use controls– Oversight and enforcement principles

DoD Issues• DoD submitted significant comments during the last

comment period

• DoD’s issues center around fears of regulatory implications to operational ranges

• We have addressed most of the DoD comments and have worked to make the document more streamlined and focused

• However, fundamental issues still remain unresolved

RCRAMilitary Munitions Rule (1997)–What it is: rule determining when

military munitions on operational ranges (active and inactive ranges) become subject to regulation under RCRA Subtitle C (or state authorized equivalent).

–40 C.F.R. 260.10.

Recovered Chemical Filled Projectile

Military Munitions Rule• The Munitions Rule does not exempt MEC

on operational ranges from the remedial and imminent hazard authorities of RCRA or CERCLA;

• The Munitions Rule only conditionally exempts munitions used for their intended purpose from RCRA’s “cradle-to-grave” hazardous waste management rules under Subtitle C. [40 CFR 266.202(a)(1)].

Military Munitions Rule

• Used or fired munitions are solid waste when removed from their landing spot and either– Managed off-range; or– Disposed on-range.

• Fired munitions are solid wastes when they land off-range and are not promptly retrieved

– [40 C.F.R. 266.202(c)-(d)]

Operational Ranges• EPA’s statutory authority under RCRA and

CERCLA applies to operational ranges;• However, to avoid interference with DoD’s

national security and training and readiness mission, States and EPA exercise enforcement discretion and do not require DoD to meet regulatory requirements, such as reporting requirements, or to remediate MEC on operational ranges, except where DoD fails to respond to an imminent and substantial endangerment to off-range populations and on-range personnel caused by on-range MEC.

Intended Use• Range clearance activities conducted on

operational (active or inactive) ranges, in general, are part of the munitions’ intended use [40 CFR 266.202 (a)(1)(iii)].

• If it is not clear that the munitions left in the environment at an operational range are a result of range clearance activities at that particular range, it would not be clear all of the munitions at that range came to be there through intended use.

Military Munitions Rule• DoD has articulated legal theories that would

exclude munitions from the definition of solid and hazardous waste ;

• DoD has also advanced mistaken theories on the applicability of the Munitions Rule;

• EPA has publicly responded to these theories with a clear statement of its legal position.

(Memorandum to EPA Regional Enforcement Managers from David Kling, Director of Federal Facilities Enforcement Office (October 21, 2005, http://www.epa.gov/fedfac/pdf/ffeo_munitions_memo.pdf)

EPA Cleanup Authority• Munitions can create imminent and substantial

endangerments though used for their intended purpose, thereby warranting remedial action;

• EPA may enforce RCRA and CERCLA’s remedial and imminent hazard authorities to force such action as may be necessary to abate an imminent and substantial endangerment to health or the environment regardless of whether MEC meets the restrictive characteristics warranting regulation under RCRA Subtitle C under the Munitions Rule.

UNDERWATER MUNITIONSConcerns

• Explosive hazard• Dermal contact• Seafood consumption• Ecological impact

Practice BombChappaquiddick Island, MA (2007)

Mustard Gas Barrel

Gulf of Mexico (2008)

Gun PropellantOrdnance Reef, HI (2008)

EXPOSURE PATHWAYS

• Commercial fishing

• M.V. Snoopy • North Carolina, 1965• Eight fatalities

• S.S. John Harvey• American freighter sank by Germans off Bari, Italy• Carrying 2000 bombs with 60 lbs mustard (Dec. 1943)• 1946-1997: mustard in nets => 232 exposures, five

fatalities

EXPOSURE PATHWAYS• Uplands Disposal

• Delaware clamshells (2004)– 32 live grenades found in crushed clamshells purchased for

driveway paving– 300 munitions found in paving materials across county– 3 EOD members injured by mustard agent

• Surf City, NJ beach closure (Mar. 2007)– Corps of Engineers dredged seabed for beach replenishment – Beach material loaded with WWII munitions– 1,100 munitions components recovered

Source: U.S. Navy

Underwater Munitions

IMMINENT HAZARD OF MUNITIONS on GUAM

• A serious public health risk is posed by unexploded ordnance (UXO) at the Formerly Used Defense Site (FUDS) at Asan Beach Unit, War in the Pacific National Park on Guam:

• 64 tons of ordnance and explosives, including white phosphorus, were dumped there by the USN after World War II, as part of a post-invasion cleanup; – although it was originally crated and encased in tar, the UXO (also

known as MEC/DMM) has migrated from its original dump location and is further migrating, probably because of tidal action and typhoon battering.

• The material is moving to the near-shore waters and washing up onto the beach; – it is visible in waters less than 10 feet deep; – it is accessible to the public using the Park, – to fishermen, and to swimmers, snorkelers, and SCUBA divers, and – it poses a significant public health hazard.