The Price of Preparing for War

Abstract

Located a few miles from Anchorage, Alaska’s Eagle River Flats is a coastal saltwater marsh teeming with fish, wildlife—and unexploded mortar and artillery shells. The marsh lies on the Department of Defense’s (DOD) 62,000-acre training facility at Fort Richardson, headquarters to the Army’s Alaskan command and control units. Since World War II, Eagle River Flats has been Fort Richardson’s primary “ordnance impact zone,” where soldiers stationed at the fort come to train with live munitions. Environmental assessments undertaken at the Flats by the Army have revealed high levels of contaminants including heavy metals, explosive compounds, and white phosphorus, a toxic agent used to generate smoke cover on the battlefield. It was this contamination with white phosphorus, which can damage bones and major internal organs, that in 1994 landed Eagle River Flats on the Superfund National Priorities List, a U.S. Environmental Protection Agency (EPA) compilation of the nation’s most polluted properties. Since then, the Army has been conducting an EPA-approved effort to clean up the white phosphorus. But in April 2002 the DOD was sued by a citizens’ coalition urging the Army to address remaining contamination problems at the Flats. Among the plaintiffs were the indigenous Chickaloon Indians, who claimed the Army’s use of live munitions was polluting traditional hunting and fishing grounds. The suit also charged that unexploded mortar rounds and artillery shells in the area were leaching toxic chemicals that were migrating to nearby Cook Inlet. The plaintiffs’ attorney, Scott Allen of the San Francisco, California–based law firm Cox and Moyer, says the suit requested that the Army remove some 10,000 unexploded mortar rounds and artillery shells from the area (the number estimated in the Army’s 1998 proposed Superfund cleanup plan), remediate toxic contamination, and abstain from using the range for bombing exercises until a Clean Water Act permit had been obtained for munitions discharges. When confronted with the lawsuit, the DOD took its case to Congress. There, it argued that the laws on the books were not intended to be applied to operational military ranges in this way, citing long-standing past state and federal regulatory interpretation and practice. The DOD further argued that suits like those brought at Eagle River Flats, if successful, could set a legal precedent whereby environmental litigants could halt military training and thus undermine troop readiness on the battlefield. Before the 2002 lawsuit even arose, the DOD had proposed new legislation called the Readiness and Range Preservation Initiative (RRPI) to prevent just such lawsuits attempting to use hazardous waste laws to limit training. The RRPI calls for exemptions from a number of environmental laws on more than 8,000 operational DOD training ranges, a land area equal to roughly 24 million acres. Under this proposed new legislation, munitions would not be subject to hazardous waste permitting or cleanup requirements as long as they remain on operational ranges.