Environmental and public health groups are attacking EPA’s proposed rule on open burning/open detonation (OB/OD) of waste munitions, saying that if the agency will not back their long-running calls for a total ban on the practice it must at least strengthen elements of the proposal they say are “arbitrary and capricious” or unlawfully weak.
“If EPA will not close the OB/OD exception as is necessary, it must at the very least move swiftly to strengthen and promulgate improvements to the status quo,” reads a June 20 comment letter from the environmental law firm Earthjustice and eight other citizen groups.
They say the agency must “ensure comprehensive and recurring alternatives evaluations; expand the list of hazardous wastes prohibited from OB/OD; establish clear, prescriptive minimum requirements limiting OB/OD, assuring complete clean-up of resulting contamination, enhancing oversight, and guarding against abuse; and provide for increased opportunities for meaningful public participation.”
Similarly, the Wisconsin-based Citizens for Safe Water Around Badger (CSWAB) also wrote that only a complete ban of OB/OD can adequately protect public health and the environment, as well as environmental cleanup efforts, from the impacts of OB/OD disposal methods.
“There is a unified national call from stakeholders — representing impacted communities from around the U.S. and its territories — for a BAN on [OB/OD]. For the percentage of munitions that require the development of innovative alternatives, these hazardous wastes should be safely stockpiled until we have the answers,” Laura Olah, executive director of CSWAB, wrote in the group’s June 20 comments.
While EPA generally banned open burning of hazardous waste under the Resource Conservation and Recovery Act (RCRA) in 1980, it provided an exception for disposal of waste explosives. In recent years, environmentalists and others have pushed the agency to halt the practice entirely through a long-stalled rulemaking.
But instead of a full ban, EPA’s March 12 proposal seeks to impose first-time standards for assessing when alternatives to OB/OD are “safe and available,” a structure for crafting those assessments for review by waste authorities, and timelines for making the needed demonstrations.
It would “clarify how facilities would assess whether safe alternatives are available in lieu of OB/OD, while adding technical standards for instances where OB/OD remains the only treatment method for waste explosives,” create a de minimis threshold for exempting smaller operations from the rule’s full requirements, and set out a “framework for permitting mobile treatment units [MTUs] which could be used as an alternative to OB/OD.”
Those mandates would affect both private industry and federal facilities under the Defense Department (DOD), Department of Energy (DOE) and NASA, among other agencies — several of which have urged EPA to loosen the proposal.
Environmental groups, however, say the current approach is not strict enough to satisfy RCRA’s mandate that waste disposal avoid “imminent and substantial endangerment” of human health or the environment.
Regulatory ‘Loopholes’
The coalition’s letter says the rule includes a host of “loopholes” that will allow facilities to continue OB/OD practices, writing that while it “includes certain important minimum requirements and clarifications, including those for alternatives evaluations, waste characterization, reporting, and operating conditions, it is insufficient.”
Because “[t]he proposal lacks necessary and specific restrictions on OB/OD,” it “perpetuates a loophole that is far too broad, and presents new threats to human health and the environment,” they say.
The groups argue that EPA’s rule rests on “general claims” it has not substantiated, such as that safer alternatives may not be available for certain waste streams, and which “do not justify an exception from the prohibition on OB/OD.”
And they say EPA is failing “to ensure alternatives are secured and implemented and OB/OD operations end as quickly as possible,” pointing to the proposed requirement for “facilities to prepare and submit an implementation schedule for approval by the permitting authority within 180 days of determining that a safe alternative is available” as particularly inadequate.
“As explained, there is no reasonable basis for EPA to assume that permitting authorities will follow the new requirements and ensure expeditious implementation of alternatives, particularly without public engagement and clear, strict requirements to do so. It is EPA’s statutory responsibility to set minimum requirements necessary to ensure timely implementation of alternatives to protect human health and the environment.”
They also call for EPA to expand the list of chemicals whose presence in waste would trigger a prohibition on OB/OD, most prominently per- and polyfluoroalkyl substances (PFAS) — which environmentalists have long argued should never be disposed through burning.
“We need to end all routine OB/OD of waste munitions by the DOD, DOE, NASA and private industry that every day are polluting whole communities, onsite workers and service members with the relentless uncontrolled release of depleted uranium, PFAS, lead, dioxins, and other highly toxic chemicals,” the CSWAB letter says.
De Minimis Level
The Earthjustice-led letter also calls the proposed de minimis exemption “unlawful and arbitrary,” and adds that “EPA also must eliminate all new toxic threats in the proposal that would inexplicably weaken protections for communities and the environment,” including that provision.
The proposed de minimis language would waive “the requirement to evaluate and implement alternative technologies,” for facilities that generate up to 15,000 pounds net explosive weight (NEW) of waste per year.
But the environmentalists say that contradicts the agency’s own findings, and that EPA should not allow an exemption and that it “must be abandoned.”
Their argument echoes the New York State Department of Environmental Conservation’s (NYSDEC) June 7 comments where it said there was no clear justification for the 15,000-pound cutoff.
“There are no specific standards for demonstrating that an activity would have negligible impact to human health and the environment and, therefore, qualify as ‘de minimis,’” the state said.
It also claimed the rule does not properly justify that element, saying “The lack of specific standards could also make the exemption more susceptible to legal challenges and misuse. NYSDEC requests that EPA provide more information about the types of standards that could be used to show that a proposed activity would be classified as ‘de minimis.’”
And in March, CSWAB’s Olah told Inside EPA that the proposal’s de minimis provision is “ridiculous,” and said it “should be removed completely.”
The group’s new letter again argues that only a complete ban will be effective in reaching environmental and financial targets.
“Requiring air monitoring, wind directions, closure goals, trench liners and the like will NOT prevent the cumulative uncontrolled release of toxic chemicals to the environment. Given OB/OD constitutes an ongoing uncontrolled release to the environment, there simply is no safe way to conduct OB/OD — a complete ban should be made effective immediately.”
by Sarah Mattalian
© 2024. Inside Washington Publishers.
Final Public Comment Earth Justice and Impacted Communities Proposed OB OD Rule Comments 20 June 2024
CSWAB Comments OB OD Draft Rule Federal Register Cover Letter with Enclosures June 2024
DOE Comments EPA Rule OB OD April 2024
New York State Dept Environmental Conservation Comments EPA Rule OB OD June 2024
EPA Proposed Revisions OB OD Rule March 2024