Witness Testimony
Mr. Douglas H. Benevento
Executive Director
Colorado Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, CO, 80246-1530
Current Environmental Issues Affecting the Readiness of the Department of Defense
Subcommittee on Energy and Air Quality
Subcommittee on Environment and Hazardous Materials
April 21, 2004
10:00 AM
Good morning, my name is Doug Benevento and I am the executive director of
the Colorado Department of Public Health and Environment. In that position I am
responsible for the oversight of the State of Colorado's air, water, solid waste
and hazardous waste programs as well as the bulk of the state's health programs.
The majority of the programs that I am responsible for on the environmental side
are programs that are delegated to the state through the Clean Air Act, the
Clean Water Act, or the Resource Conservation and Recovery Act. I am a member of
the Environmental Council of States and serve on that body's executive
committee. Also, I am the former co-chair of ECOS' DoD forum, which is designed
to open communications with DoD for the purpose of working through issues like
this one. I do want to make clear though that today I am speaking for the state
of Colorado and not ECOS or the DoD forum.
I'm here today to testify on the excellent progress that has been made on
DoD's proposal over the past 2 years. Through open communication and give and
take I believe a product has been developed that should be mostly acceptable to
both the DoD and the states.
There is an interesting dynamic between state regulators and the Department
of Defense. State regulators tend to automatically react with skepticism on any
perceived infringment on our authority to regulate DoD activities. We are very
good at pointing out every shortfall in any environmental proposal sought by DoD
but are not very good at providing mutually acceptable solutions. A review of
the testimony of state official on this topic is illustrative of this point. On
the other hand DoD has in the past not done a good job of reaching out to state
officials when developing their proposals and we have at times only found out
about them after a final position has been adopted.
I think both sides have done an excellent job of trying to remedy those past
shortcomings. From a state's perspective I have read DoD's proposed changes
critically, but with a problem solving perspective, and have tried to make
suggestions that are helpful to their goals while ensuring no threat would arise
to the public from any change. On DoD's part they have done an excellent job of
reaching out to states. They have held numerous working meetings with state
officials at our national organization, the Environmental Council of States (ECOS),
and with other state organizations. Also, they have met with the Attorney
Generals to try and ameliorate concerns and make changes to their proposal.
I would also like to point out for the committee that I have not been
hesitant in the past to use Colorado's regulatory authority when I believed it
was appropriate. For example, when the Army found Sarin nerve gas bomblets at
the Rocky Mountain Arsenal, a superfund site in the Denver Metropolitan Area,
and proposed open detonating them as a remedy the state delivered a RCRA order
to them at my directing prohibiting them from that course of action. Also, when
asbestos was found in the soil at Buckley Air Force base the state mandated a
stricter cleanup plan than the Air Force would have preferred. We are also
currently engaged in an action against the Air Force also dealing with cleanup
of asbestos in soils at the former Lowry Air Force base. I can provide more
examples of enforcement actions the state has taken if only to demonstrate that
I don't come to this issue as someone who has always agreed with DoD on the
application of environmental laws.
When I evaluated the DoD proposal I evaluated it using 2 principles. First,
no change should pose a threat to human health or the environment; in this case
no temporary waiver could result in any offsite release. Second, full liability
needed to rest with the DoD for cleanup activities once a site is no longer an
operational range. I believe both of those principles have been met.
The DoD proposal is very narrowly tailored. They are seeking a temporary
waiver from the Resource Conservation and Recovery Act (RCRA), the Clean Air
Act, and the Comprehensive Environmental Response, Compensation, and Liability
Act. The temporary waiver would only apply to operational ranges, which is
defined as those ranges that are used, or are anticipated for use, for military
training activities. This proposal would not apply to those sites, such as the
Rocky Mountain Arsenal or the former Lowry bombing range or the Pueblo Chemical
Depot or the former Lowry Air Force base all of which are excluded through a
plain reading of the language DoD has put forward. As the person in Colorado who
is responsible for running the programs I can say with certainty sites such as
these will not be affected. Further, any site which has been put to a use
incompatible with military training is not covered by this proposal. Finally,
when a site is no longer in use as an operational range all authorities would
snap back and the states or EPA would have full authority to act appropriately.
These are the facts and I think they're little room to dispute them.
The provisions of the Clean Air Act are also narrow. It would allow DoD and
the states a 3-year period to accommodate emissions from new military readiness
activities into state implementation plans. This provision would apply to only
new military readiness activities or construction related to the new activity.
Resource Conservation and Recovery Act and the Comprehensive Environmental
Response, Compensation and Liability Act
Working with the states DoD has made changes to their proposal which I
believe address state concerns and ensure that human health and the environment
are protected while meeting their goal.
When I testified last year in the Senate on this issue I offered several
suggestions to DoD's proposal. I would like to outline how these suggestions
have been addressed by DoD in the remainder of my testimony.
I would like to begin with how the DoD proposal would impact RCRA and the
authority of states under RCRA. I want to state at the outset that I don't know
of any state that issues RCRA permits or attempts to regulate normal training
activities of the military. Colorado has worked well with DoD on training
activities on their sites in out state. The proposed legislation merely seeks to
codify a generally good relationship with Colorado and other states on these
issues.
I have had numerous conversations with DoD and I feel comfortable
representing their intent behind this proposal. What DoD is seeking are
protections for their training activities on a range. They are not seeking an
exemption from offsite impacts caused by their activities.
For example, this legislation would not exempt DoD from a permitting
requirement for open burning or open detonation (OB/OD) when used as a disposal
activity. Colorado currently permits such activities and with or without this
legislation we will continue to permit such activities. However, under this law
an OB/OD activity that is a necessary part of training would be exempt. That is
a legitimate exemption and currently the practice in Colorado and other states.
Nevertheless, even though DoD was clear about their intent I was concerned
that it could pose some unintended difficulties. The first was definitional. The
proposal last year exempted munitions on an operational range. However, this
posed an ambiguity since operational range did not have a statutory definition.
This ambiguity has been resolved through the '04 NDAA which has defined an
operational range as, under the jurisdiction, custody, or control of the
Secretary of Defense and;
1. that is used for range activities, or 2. although not currently being used
for range activities, that is still considered by the Secretary to be a range
and has not been put to a new use that is incompatible with range activities.
In my opinion, this definition provides sufficient clarity to ensure the
exemption sought by DoD is limited to those areas under DoD control for
necessary munitions related testing and training. This language should not apply
to private ranges or to defense related contractor facilities.
Second, I was concerned that last year's exemption language could be
interpreted to apply offsite. DoD was very clear that was not their intent and
this year's language has changed to clarify that point. DoD has significantly
simplified this year's language by stating the scope of the exemption up front,
it only applies to exempt from the definition of solid waste, military munitions
and their constituents that meet a 3 prong test;
1. the munitions must be deposited incident to their normal and expected use;
2. they must be deposited on an operational range, and; 3. the munitions and the
constituents must remain on the range.
If any of these criteria are not met, they are not included in the exemption.
Third, last year I expressed concern that that definition of operational
range included ranges that were not currently in use. This is a difficult issue,
but after numerous conversations with DoD I am comfortable with the inclusion of
having ranges that are not currently being used for training sharing in the
exemption. From an environmental regulators point of view so long as those
ranges are not open to the public and there are not offsite releases and they
are not being used for some different incompatible purpose, I don't believe
inclusion of these ranges would pose any threat. Further, it is my understanding
that DoD needs to retain these ranges because they potentially could be useful
and the ability to acquire new ranges is very limited.
However, I believed from a state perspective it would be useful if the
military went through a review process of these inactive ranges to determine
whether they should remain inactive, go to active status, or move to cleanup if
necessary. Since my testimony of last year, DoD has completed an inventory of
their operational ranges which has been provided to Congress. I understand this
inventory was mandated by law in 2003 and will be updated annually until 2008.
In addition, I am aware that a 2003 directive issued by DoD requires that range
inventories be updated at least every 5 years to verify that they are still
necessary. I think these inventories will assure that ranges which are not
currently active will be evaluated and blunts any criticism that DoD will merely
hold inactive ranges to avoid cleanup.
Fourth, DoD has done an excellent job of simplifying the language so it is
clear what is being exempted and what is not being exempted. While the language
can always be tweaked, I believe this year's language sufficiently spells out
the reach and scope of the exemption.
Fifth, an issue that was of some concern to me last year was how to detect
and verify that there are no offsite releases. In conversations with DoD I
understand that they have already established policies to evaluate the impact of
their ranges and to make that information public. By law, the results of all DoD
on-range assessments or monitoring are available to EPA, and through FOIA to
states and citizens as well; beyond that DoD has advised me that they are
finalizing a policy formally requiring proactive sharing of such information
with state and federal regulators and the public. Further, should constituents
from military munitions migrate from an operational range, it would trigger a
number of requirements under CERCLA section 103 respecting the release of
hazardous substances, and response requirements under CERCLA section 104 and 10
U.S.C., section 2701. The combination of these authorities and binding policies
will ensure that Congress, state, and federal regulators, as well as the public
will soon have access to far more information about the environmental effects of
DoD's on range activities than we ever possessed before.
Sixth, DoD has language in this year's legislation which clearly states that
once a range is no longer operational they are responsible for cleanup. The
inclusion of this language is merely a clear statement of DoD's original intent
and should obviate any criticism that they were attempting to avoid their
environmental responsibilities on their property.
Finally, they have removed language from last year's legislation which would
have created a CERCLA preference for cleanup. What that would have done is
preempt state hazardous waste laws and in favor of CERCLA. The elimination of
this language was important to Colorado and we appreciate greatly their
acknowledgement of our concerns.
As with the redraft of the RCRA provision, I am equally persuaded that the
language of DoD's current CERCLA provision is sufficiently narrow to preserve
the commonsense proposition that use of munitions for testing and training on an
operational range should not be considered a release of a hazardous substance
triggering the requirements of CERCLA. As written, the exemption from the
definition of release would apply to "military munitions, including
unexploded ordnance, and the constituents thereof" that are deposited on
the range incident to their normal and expected use in military test and
training activities. As with RCRA my concerns about the scope of last year's
proposal have been addressed.
The Clean Air Act
I expressed concern last year about revisions to the Clean Air Act that are
sought with this proposal. While I do believe that flexibility from the
conformity provisions of the Clean Air Act can be appropriate, crafting that
flexibility is a challenge.
My concerns are based on the simple fact that the potential for offsite
impacts are much greater in this media. As I mentioned in the beginning of my
testimony a basic principle I have is no change should result in an offsite
impact. However, I have been very impressed with the diligence of DoD staff in
working through issues on their proposal. Further, I am convinced and have been
assured by DoD staff that they will continue to the collaborative effort with
states that began over a year ago. Colorado will continue to work with them on
this issue in hopes of finding a mutually solution that all of us feel
comfortable supporting.
Conclusion
I believe the RCRA and CERCLA provisions of the Range Readiness and
Preservation Initiative are appropriate and would not pose any risk in Colorado.
The changes being sought merely allow for additional flexibility for DoD in
carrying out training for their core mission. It is appropriate for
environmental regulators to help provide that flexibility so long as we can
ensure that we can fulfill our core mission. DoD should be commended for immense
amount of time they have spent working with Colorado and other states to address
our concerns in a positive problem solving fashion.
| 
