Testimony of Mr. Stanley Phillippe on behalf
of the Association of State and Territorial
Solid Waste Management Officials (ASTSWMO)
for the Hearing of the U.S. Senate Environment and Public Works Committee,
Regarding Possible Amendments to National Statutes in Order to Address
Concerns of Environmental Encroachment on Military Training Readiness at Active Ranges
in Connection With Consideration of S. 2225
2:30 p.m., Tuesday, July 9, 2002
Room 406, Dirksen Senate Office Building
Good afternoon. I am Stanley Phillippe and I am the Chair of the Federal Facilities Research Subcommittee of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO). Thank you for inviting ASTSWMO to testify concerning recent Department of Defense proposed amendments to the Resource Conservation and Recovery Act (RCRA), and to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as those relate to military range activities. ASTSWMO is a non-partisan, non-profit association which represents the collective interests of waste program directors of the nation's States and Territories. Our membership is drawn exclusively from State employees who deal daily with the many management and resource implications of the State waste management and remediation programs they direct. ASTSWMO's membership includes the State regulatory program managers for solid waste, hazardous waste, underground storage tanks, and waste minimization and recycling programs as well as State cleanup and remedial program managers. Among those are State experts specializing in providing regulatory support to Federal Facilities, primarily in situations of base closure and remediation of Formerly Used Defense Sites. We deal with active military facilities as well, particularly with those industrial-like activities which may require permits under RCRA. As the day-to-day implementers of the State and Federal cleanup programs, we think we can offer a unique perspective to this dialogue.
I would also like to commend this Committee and the Senate Armed Services Committee for your measured, careful approach to these suggested amendments. Our Association has strongly recommended that any action that Congress might consider along the lines suggested by the Department of Defense first be scrutinized and openly debated in the committees of primary jurisdiction over the environmental laws. We are very glad that the bipartisan support for that consideration has resulted in this Senate hearing and thank you for your careful attention to this very important matter.
I am here today to tell you of our Association’s opposition to the amending language for RCRA and CERCLA proposed by the Department of Defense, and to urge that you oppose these changes to these key environmental statutes. But, I am also here to assure you of our Association members’ strong and continuing support for ensuring the readiness of our Armed Forces. Despite our criticism of the specific changes DoD has proposed to RCRA and CERCLA, we believe that State regulators have consistently worked with DoD and the Military Services to resolve range-related issues dealing with those statutes, and that together we have found workable solutions in the case of operating, active ranges.
That said, our examination of the proposed legislative April 2002 package DoD has titled the “Readiness and Range Preservation Initiative” leads us to question both the need and wisdom for the proposed changes to RCRA’s definition of “solid waste” and to CERCLA’s definition of a “release”.
· As to the question of the compelling need for such changes, we are unaware of cases where State regulators have adversely impacted readiness by seeking compliance with RCRA. Among the supporting rationale DoD has released with the proposed legislative package, we only found a single reference to possible problems which could come from a citizen suit challenging RCRA compliance at Fort Richardson, Alaska. We have been told there is a similar citizen suit-generated RCRA situation with range use in Puerto Rico. Frankly, on their face, these are not real barriers, but only potential problems of doubtful probability, dependent upon decisions to be made in federal courts. The absence of any report of existing situations involving adverse RCRA impacts on readiness seems to confirm our belief that normal RCRA regulation has not impeded military training on operational ranges, and is not likely to do so. A report last month from the General Accounting Office focused on encroachment issues facing DoD. This report did not identify RCRA or CERCLA as presenting problems for DoD’s training mission. There will be peripheral issues that may arise and several States have worked with military installations to address certain issues that are the result of range use through permits or best practices. For example, open burning of excess propellents left over from live fire may be managed under permit in order to ensure that releases are properly controlled. However, those kinds of activities have no effect on the conduct of the range firing itself.
· As a practical matter, the application of State authority under RCRA to operating ranges would become necessary when a State believed intervention was necessary to protect the public from “imminent and substantial endangerment” as defined in Section 7003 of the statute. Surely, no responsible DoD official would tolerate such a situation. Our experience is that DoD and the Military Services give scrupulous attention to enforcing safety during inherently dangerous live-fire training.
· A more common State interest is the application of RCRA and State hazardous waste statutes to cleanup requirements for closed and closing ranges that have been or will be transferred out of federal ownership for civilian use. It is our view that these cleanup requirements have nothing to do with current training activities and do not potentially endanger the effectiveness of training. However, the proposed DoD changes to the statutory definitions of “solid waste” and to “releases” would arguably not only affect the application of the statute to operating ranges, but by narrowing the definitions used throughout the rest of the statutes, confuse the application of the definitions in other parts of the statutes. These definitions are critical to issues such as jurisdictional roles and State authority over such cleanups. Our experience is that RCRA definitional issues are very complex, and require close examination. We believe our State legal colleagues, represented here by the National Association of Attorneys General, are best equipped to deal with those arguments, but as the State implementers of hazardous waste and cleanup laws, we believe that this is one of those cases where the first principle is to “do no harm”. These suggested changes to RCRA and CERCLA reach beyond DoD’s immediate needs and could affect our later jurisdiction over cleanup of unexploded ordnance and other environmental hazards that may have been caused by range use. Instead of seeking exemptions from RCRA and CERCLA, we think DoD and the Military Services should concentrate their efforts on prevention of the migration of munitions and explosive related wastes by pathways that will affect human health and the environment. In the long run, this approach will do much more to meet their needs for sustainable ranges.
· Even if there is a situation where the Department of Defense should reach an absolute barrier caused by RCRA or CERCLA, we would note that there is still extraordinary Presidential authority to suspend application of these statutes for national interests, [i.e., RCRA Section 6001 or CERCLA Section 120(j)(1)] so that essential training activity could be continued. We are not suggesting that use of these authorities should become routine, nor that they be used lightly. Like all extraordinary powers, they must be used with respect and circumspection. But the fact remains that they are available. Congress has already provided remedies for extraordinary circumstances, and if they are insufficient, a much stronger justification needs to be put forth.
Let me close with the thought that the proposed changes to RCRA and CERCLA are not justified by any demonstration that RCRA or CERCLA have adversely impacted readiness, are unnecessary, and certainly may have undesirable consequences for the nation’s primary hazardous waste and remediation statutes. I want to reiterate our desire to assist the Department of Defense and Military Services in more practical ways. We will continue to work with them to assist in making effective use of their active range resources, and to improve the likelihood that those ranges will continue to be sustainable into the indefinite future. Like any other citizens, we have an obligation to actively assist our armed forces in improving and maintaining the high level of preparedness required by the times. Their well being and readiness are very important to us, and to all citizens, and we will work actively with their representatives to find ways to make range operations safe and workable.
Thank you for requesting our testimony regarding this important legislation. I would be happy to respond to any questions you might have regarding our views.