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chapter six Missiles, Mayhem, and the Munitions Rule Homer writes in the Iliad that when Mars rushed into Achilles’s soul in his battle with Hector, “the springs of fate snap[ped] every lock tight.”1 As the two previous chapters on base cleanups have illustrated, however, the U.S. military in the post–Cold War era conceded nothing to fate. Rather, like the principles informing the Clinton administration’s strategic military doctrine in the 1990s, fate was something to shape, prepare for, and respond to in order to protect as much stability, predictability, and security of the military’s core operations as possible. Moreover, the only thing “locked tight” was the military’s determination to control the substance, pace, and extent to which responsiveness, transparency , and the reallocation of resources related to base cleanups took place. Nor would this predisposition wane in a third major component of cleanup debates during the Clinton years: how best to regulate the treatment, storage, and disposal of active or spent munitions at U.S. military bases.2 One of the special concerns Congress had in debating the merits of the FFCA of 1992 was discerning how best to protect civilians and military personnel from the explosive and toxicological threats posed by live or spent munitions on active and closed, transferred, or transferring military bases.3 Moreover, with passage of the FFCA jeopardized over this important issue, Congress left it to the EPA to develop a “munitions rule” dealing with these issues. One major component of that rule would be a “range rule” regulating UXO. Thetechnicalcomplexityaloneof developingtheseruleswasformidable.Multiplying the challenges, however, were the high stakes involved for the White House, the military, federal and state regulators, and environmental activists. Depending on their specifics, these rules might require of the services greater, modest, or trivial behavioral changes; more or less transparency of their munitions-related operations; substantial or insubstantial costs (financial, political, and cultural); and enhanced or diminished control of the pace, scope, and substance of greening at their bases. Commensurate with those stakes, the EPA, states, and environmental activists mounted persistent offensives throughout the Clinton years but were unable to gain agreement on the range rule component of the munitions rule amid the military’s counteroffensives. Left again amid the aftermath of these crises of authority were the same kinds of fragmented structures reported in the preceding chapters. Bequeathed, too, were the kinds of halting, halfway, and patchworked efforts and results that proved so unfavorable to institutionalizing a beyond-compliance ethic in those episodes. To illustrate these civil–military dynamics, I review in this chapter the patterns of politics driving and driven by three major, interrelated, and contemporaneous sets of decisions affecting development of the munitions rule. First, when, how, and determined by whom were conventional and chemical military munitions a solid or hazardous waste subject to the RCRA and, hence, to state rather than federal standards? Second, what was an adequate level of UXO safety on rangelands? Third, how much consultation with the states was necessary in developing and implementing the range rule as a key component of the munitions rule, including who had final say when disputes arose among the parties? When Is Ordnance a Waste? Under RCRA, there are two types of waste that require regulation: those specifically listed in Subpart D as solid waste and those with any of the four characteristics listed as hazardous in Subpart C of the statute. The four characteristics associated with the latter include ignitability, corrosivity, reactivity (i.e., explosivity ), and toxicity.4 From their perspective environmental activists and state and federal regulators had no doubt that military munitions fell clearly within either the solid or hazardous waste regulatory ambit of RCRA. Since 1980, in fact, munitions had been subjected routinely to RCRA’s solid waste regulations and permitting requirements. But although everyone agreed that the “shelf life” (i.e., the point of obsolescence, damage, or excess) of military munitions was finite, at issue during the Cold War era was when munitions became solid or hazardous waste.5 Under then-current RCRA regulations munitions were considered “products used for their intended purpose” and did not become solid waste subject to RCRA regulations until they were “discarded or intended for discard.”6 Also deferring to the military, the EPA had not treated munitions as wastes subject to RCRA regulations before they went to treatment, storage, and disposal facilities. Moreover, the agency deferred to the Pentagon’s Defense Explosives Safety Board (DESB) to devise procedures...

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