Fact Sheet on DOD Exemptions
from RCRA and CERCLA

Once again, the Department of Defense (DOD) is seeking legislation that would grant the Department exemptions from the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). These exemptions are spelled out in the Range Readiness and Preservation Initiative (RRPI) and are being sought for a third successive year. DOD has asserted that the amendments are necessary "to maintain military readiness." In rebuttal, state organizations on a bipartisan basis assert that these laws do not adversely affect military readiness. Major associations of drinking water utilities, local government organizations, and environmental organizations stand together in agreement that the existing laws are vital and necessary to protect drinking water supplies and the health of military families and local communities.

1. The National Association of Attorneys General
2. The Environmental Council of the States
3. The Association of State and Territorial Solid Waste Management Officials
4. The Association of Metropolitan Water Agencies
5. The American Water Works Association
6. The National Association of Water Companies
7. The Association of California Water Agencies
8. The National League of Cities
9. The National Association of Counties
10. All Major Environmental Organizations
11. The Western Growers Association

1. The lack of a single example of military readiness being negatively affected by these laws.
2. Each of these laws already contains national security exemptions that allow the President to exempt any DOD facility from statutory or regulatory requirements if necessary for military readiness.
3. The historic contamination of potential and actual drinking water supplies throughout the country by DOD. The amendments would result in groundwater "sacrifice zones" and higher ultimate cleanup costs for DOD and the taxpayers.
4. The broad scope of the DOD exemptions.
5. The pre-empting of state authorities to protect potential drinking water supplies, address environmental contamination, and take action where there may be imminent and endangerments to human health.
6. The termination of federal statutory authorities that local governments, drinking water providers, and military families can use to seek action when DOD contaminates or threatens their water supply.
7. The elimination of the EPA's RCRA imminent hazard authority and normal Superfund clean-up authority with respect to military munitions, including groundwater contamination, on operational ranges.
8. The removal of the authority of ATSDR (Agency for Toxic Substance and Disease Registry) to conduct health assessments for constituents of military munitions.

RCRA (Section 6001), CERCLA (Section 120j), and the Clean Air Act (Section 118) all contain national security exemptions that allow the President to exempt DOD facilities from any statutory or regulatory requirements on a case-by-case basis. The President has exercised this authority under RCRA at Groom Lake Air Force Facility with an annual notice in the Federal Register.

There are more than 20 chemical constituents of military munitions that DOD is seeking to exempt. However, five of the most common explosive ammunition constituents are perchlorate, trinitrotoluene (TNT), Royal Demolition Explosive (RDX), His Majesty's Explosive (HMX) and white phosphorus. A number of these chemical constituents are probable human carcinogens. Listed below are some of the acute effects of each of these constituents:

Massachusetts Military Reservation and Aberdeen Proving Ground (Maryland) are two locations where military munitions constituents have forced the closure of drinking water wells due to contamination from "operational ranges." Live fire training at the Massachusetts Military Reservation has contaminated large amounts of groundwater with perchlorate and RDX (300 ppb in the groundwater). This aquifer is the sole drinking water aquifer for Cape Cod, affecting drinking water supplies for 200,000 year round and 500,000 seasonal residents of upper Cape Cod.

Perchlorate contamination from an operational range at Aberdeen Proving Ground has been detected in drinking water wells of the City of Aberdeen and resulted in the temporary closure of production wells. The local utility has been forced to blend the contaminated water with other water sources to keep the perchlorate levels below the Maryland health advisory level. The groundwater under Aberdeen is contaminated with perchlorate up to approximately 20 ppb. High levels of perchlorate have been found in the soil.

At Iowa Army Ammunition Plant, offsite contamination from RDX was detected significantly above the health advisory level of 2 ppb and required closure of offsite private drinking wells. One hundred and fifty-four property owners had to be hooked up to alternative drinking water supplies. One creek on the base that runs offsite flowed red in color due to the discharge of explosives contaminated wastewater (TNT and RDX). Perchlorate has been detected in the groundwater at levels up to 30 ppb after EPA sampling. There are nine operational ranges listed at the facility.

Nationwide, there are at least 40 DOD facilities with known perchlorate contamination of groundwater or surface water. A number of these and other DOD facilities have contamination from RDX, TNT, HMX, and White Phosphorus.

The DOD exemptions, under the most narrow reading (for "operational ranges" only), cover over 8,000 ranges in every state in the country. The covered acreage is over 24,000,000 acres (37,500 sq. miles). To put this number into perspective, the exemptions would include a land area the size of six states including: New Jersey, Massachusetts, Hawaii, Connecticut, New Hampshire, and Delaware. Under the DOD definition of "operational range," buffer zones where hunting, fishing, and camping is allowed are included in the land covered by the exemption, even if the range is inactive and last used for training decades ago. The definition of operational range also includes land not owned by the Federal Government as long as it falls under the "jurisdiction, custody, or control" of the Secretary of Defense. The EPA has stated that "jurisdiction, custody, or control," is an "expansive term" and can include private property, state property, or tribal property which DOD leases for use as an "operational range."

Under the broader reading of DOD's legislative language, military munitions exempted from RCRA could include munitions not used in training or testing. These exemptions could also include those munitions (including explosives and components) that may be discharged, injected, dumped, spilled, or placed off an "operational range." In addition, this reading of DOD's proposed amendment could pre-empt state and EPA regulation of the destruction of the Nation's stockpile of chemical weapons.

According to state officials, environmental regulators would likely be precluded from requiring an investigation or clean up of groundwater contamination on these lands, even if it posed an imminent and substantial endangerment to human health. Associations representing drinking water utilities have described the impact of these proposals on drinking water supplies as follows:

In addition, cleanups of these military munitions constituents at many DOD Superfund facilities would be adversely affected and environmental protection would be weakened. Some of these facilities are the Iowa Army Ammunition Plant, the Allegeny Ballistics Lab in West Virginia, Fort Richardson in Alaska, and Lake City Army Ammunition Plant in Missouri.

The normal section 104 clean-up process of the Superfund program is being used today to respond to a 'release' or a 'substantial threat of a release into the environment' from constituents of military munitions at DOD facilities. This basic authority would be eliminated under the DOD proposal. Instead, the EPA would be required to issue an abatement order under CERCLA section 106 which requires a higher evidentiary standard of proof that there "may be an imminent and substantial endangerment to the public health, welfare, or environment." EPA has acknowledged that it "has never issued an unilateral administrative order pursuant to section 106 of CERCLA to a DOD facility." The EPA is further constrained because the Executive Order 12580 requires that the Department of Justice concur in any such order. Lastly, the authority to issue an abatement order is rendered ineffective because the EPA would lose its authority to collect samples and conduct inspections under Section 104(e)(3) and (4) of CERCLA on "operational ranges."

1. Pre-empts state RCRA authority to require investigation or clean up of environmental contamination from used/fired munitions with the external boundaries of a range, even if the contamination has migrated off the range (RCRA Section 6001, waiving sovereign immunity). Forty-eight states are authorized to implement the base RCRA program in lieu of EPA and 39 states are authorized to carry out the corrective action program.

2. Pre-empts state use of the Citizen Suit provision of federal law to seek a federal court order requiring investigation or clean up where environmental contamination from used/fired munitions "may present an imminent and substantial endangerment to health or the environment" (RCRA Section 7002).
3. Pre-empts state authority under state "Superfund" or other remedial authorities to require investigation or clean up of environmental contamination from used/fired munitions within the external boundaries of a range, even if the contamination has migrated off the range [CERCLA: Section 120(a) waiver of sovereign immunity; Section 101(22)(23)].

Local governments, drinking water utilities, and military families are pre-empted from using RCRA's citizen suit provisions to seek a federal court order requiring investigation or cleanup of environmental contamination from used/fired munitions within the external boundaries of a range that "may present an imminent and substantial endangerment to health or the environment," even if the contamination has migrated off the range. (RCRA Section 7002 a(1)(B)).

1. Terminates the Administrator's authority to issue an administrative order or to bring a suit in federal court to address contamination from used/fired munitions within the external boundaries of a range (including groundwater beneath the surface of the range) that may present an imminent and substantial endangerment to health or the environment (RCRA Section 7003).
2. Terminates the EPA's statutory ability to gather information under RCRA section 3007 with respect to constituents of used/fired munitions within the external boundaries of a range (RCRA Section 3007).
3. Eliminates corrective action authority for constituents of used/fired munitions at solid waste management units within the external boundaries of a range (RCRA Section 3004(u)).
4. Terminates the EPA's removal and remedial authority under CERCLA section 104 to address munitions-related and explosives-related contamination, which remains on an operational range at Superfund NPL facility (CERCLA Section 104 and 101(22)).
5. Terminates the EPA's authority to collect samples and conduct inspections under section 104(e)(3) and (4) of CERCLA to investigate environmental contamination from used/fired munitions within the external boundaries of the range.
6. Terminates the EPA's authority to select or concur in remedies for munitions and explosives-related contamination or operational ranges at NPL sites (CERCLA Section 120).
7. Eliminates the requirement that investigation and clean up of munitions-related contaminants on operational ranges be conducted according to the National Contingency Plan standards that apply to all other CERCLA cleanups.
8. Potentially bars cost recovery claims against DoD under CERCLA section 107(a)(2) related to cleanup of munitions related contaminants on operational ranges.

Eliminates ATSDR's authority to conduct health assessments and perform epidemiological studies for releases of used/fired munition constituents within the external boundaries of a range located on a Superfund National Priority List site (Section 104(I)). This authority is eliminated even if the contamination migrates off the range.