2. 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.
3. EPA Differences with DoD
on Munitions
• Longstanding policy disagreements
regarding the cleanup of munitions and
explosives of concern (MEC).
• Overarching issue is DoD’s resistance
to independent regulatory oversight.
4. 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.
5. 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.
6. 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.
7. 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
8. 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
9. 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
10. 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
11. 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
12. RCRA
Military 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
13. 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)].
14. 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)]
15. 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.
16. 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.
17. 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)
18. 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.
19. UNDERWATER MUNITIONS
Concerns
• Explosive hazard
• Dermal contact
• Seafood consumption
• Ecological impact
Practice Bomb
Chappaquiddick Island, MA (2007)
Mustard Gas Barrel
Gulf of Mexico (2008)
Gun Propellant
Ordnance Reef, HI (2008)
20. 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
21. 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
24. 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.
