Richard D. Cunningham
SAIC
Washington, D.C. 20024

William Roy-Harrison
USDOE
Germantown, MD 20585

This paper analyzes communications factors which were important in developing the U.S. Department of Defense's draft Military Firing Range Rule. In particular, it focuses on the origin of the Military Firing Range Rule, and changes between the deliberative draft and draft rules. Used as an analytical tool in this paper is a communications approach known as semiotics. This approach emphasizes the exchange of meanings within and among organizational cultures, and the active participation by users to produce meanings. This analysis will be significant with regard to at least three factors: The choice by rulemakers of the meanings they intended to convey; the meanings which other organizational cultures emphasized; and how correlations in meanings among the interests can be achieved. Such a communications approach will help us to understand some of the difficulties which arose during development of this rule, and how these difficulties could have been minimized or avoided.

One of the bewildering aspects of regulatory development is that despite the best efforts of the participants they sometimes simply cannot agree on basic issues. It almost seems as if they are speaking different languages. In point of fact, this may be the case. By this we mean that the participants may see the world differently, adhere to different values, make different assumptions, and emphasize different things. While agreement might prevail on procedural aspects of rulemaking, significant disagreement can and often does arise concerning meanings and relationships inherent in the proposed rule. In this paper, we analyze one such case, the U.S. Department of Defense's (DoD) proposed Military Firing Range Rule.

We initially set the stage for our analysis by providing essential background information on the Military Firing Range Rule. In addition to the requirements of the Federal Facility Compliance Act's (FFCAct) '107 and the U.S. Environmental Protection Agency's Military Munitions Rule, this involves an understanding that the principal context associated with the development of the draft rule was an informal working group of Federal agencies. Once DoD developed their deliberative draft rule, these agencies worked for approximately one and one-half years in attempting to resolve their concerns. From the outset, however, not all the relevant Federal agencies were involved in this process and communications among them was not consistently implemented. Next, we summarize the principal issues that were raised by these Federal agencies. While DoD's interest was reflected in their approach, it raised a number of significant issues including the basis for the Military Firing Range Rule. Finally, we analyze the deliberative draft and draft rules by utilizing a semiotic communications approach, and then by way of conclusion offer several constructive suggestions.

The FFCAct amended the Resource Conservation and Recovery Act (RCRA) by requiring the U.S. Environmental Protection Agency (EPA) to propose, after consulting with the U.S. Department of Defense and appropriate State officials, a rule identifying when conventional and chemical military munitions become hazardous waste.² Initially, the EPA wanted to include issues associated with closed, transferred and transferring ranges under the Military Munitions Rule. In impasse arose, however, between DoD and the EPA concerning the applicability of RCRA to these ranges. As a result, the EPA in their Military Munitions Rule provided DoD with the option of either being subject of the EPA's rulemaking (viz., a sunset provision), or proposing their own rule to deal with closed, transferred and transferring military firing ranges. The proposed Military Firing Range Rule represents DoD's exercise of the latter option.

DoD's Firing Range Rule seeks to identify a process for evaluating appropriate response actions on closed, transferred or transferring military firing ranges. In addition, the proposed Firing Range Rule also addresses unique explosives safety considerations associated with military munitions and the need for environmental protection. The DoD rule applies to firing ranges that are under the administrative control of Federal agencies or property owners, provided that the activity that led to the munitions being on these ranges was in support of DoD's national defense or national security mission.³ DoD estimated that the rule would cover around 1300 ranges located on approximately 7.5M acres, including Formerly Used Defense Sites (FUDS).⁴

In approaching the development of their firing range rule, DoD wanted to emphasize the importance of unexploded ordnance (UXO) clearance based on explosives safety concerns. This was initially viewed as a short internal directive or policy formulated by Department of Defense Explosives Safety Board (DDESB) that would only address the explosive safety concerns. The relationship of safety and environmental issues would be examined in the preamble to the directive. DoD concluded, however, that such an approach would be considered a rulemaking under the Administrative Procedures Act (APA), and it would not measure up to EPA and public interest group expectations, especially in terms of environmental regulatory requirements. This being the case, it would be unlikely that the DoD directive would meet the requirements of the Military Munitions Rule thereby triggering the above sunset provision. To avoid this, DoD decided that in order to effectively exercise their option they had to pursue a fully developed APA rulemaking.

The legal authority cited by DoD for proposing their Firing Range Rule was the Defense Environmental Restoration Program, the DDESB, and '106 of Comprehensive Environmental Response, Compensation and Liability Act CERCLA).⁵ Since the proposed rule arose out of the FFCAct, the USEPA indicated in their final Military Munitions Rule that they will postpone action on whether to identify as a solid waste military munitions left on closed or transferred ranges. In indicating this, the USEPA thereby reserved the option of utilizing Federal environmental laws if it finds that DoD's Firing Range Rule does not adequately protect human health and the environment.⁶

A deliberative draft Military Firing Range Rule was made available in February 1996 to other Federal agencies who potentially could be effected by the rule. In addition to the EPA, these agencies included the U.S. Departments of Energy (DOE), Agriculture (DOA) and Interior (DOI). Representatives from DOE included Environment, Safety and Health (EH), Defense Programs (DP), and General Counsel (GC); DOA representatives were drawn from the Forest Service (FS); and DOI was represented by the Bureau of Land Management (BLM), Fish and Wildlife Service (FWS) and Solicitors Office. The EPA, who was essentially an ex officio member of this group, offered substantive comments at critical junctures, and participated in meetings with the Office of Management and Budget which attempted to resolve important issues.

This informal working group was largely the same as the group that was involved in the development of the EPA's Military Munitions Rule. The reason for this was twofold. Since the Military Firing Range Rule flowed from the Military Munitions Rule, many of the issues overlapped and were related to the two rules. In addition, since DoD initially hoped to finalize their Military Firing Range Rule on the same date the final Military Munitions Rule was promulgated, an attempt was made to develop both rules on the same schedule. Taken together, these agencies (and their respective subparts) constituted an informal working group that met and/or communicated via conference calls and e-mails over a one and one-half year period. Taking lead responsibility for coordinating the group and responding to concerns of these Federal agencies as well as coordinating within DoD was the U.S. Army Environmental Center located in Aberdeen, MD.

Stakeholder involvement was sought as well. DoD made the deliberative draft rule available to the general public by posting it on the Internet website of the DoD office of the Deputy Under Secretary of Defense for Environmental Security.⁷ In addition, DoD involved stakeholders by conducting briefings and distributing the deliberative draft to interested parties. For example, DoD accepted the offer to provide assistance from the Regulatory Subgroup to the Western Governors Association's (WGA) Military Munitions Working Group (MMWG). MMWG arranged several national conference calls during March and April 1996; State agencies, tribal governments, community groups and environmental organizations were provided copies of the deliberative rule, briefed and given an opportunity to comment.⁸ In addition to the WGA, members of DoD's range rule team met with representatives from the Nature Conservancy and the Association of State and Territorial Solid Waste Management Officials.⁹

DoD hoped that their Firing Range Rule would be on a "fast track." They planned to publish the proposed rule in the Federal Register during mid-May 1996 with an effective date of the final rule projected to be 31 October 1996. This schedule was put together in order to coincide with the anticipated finalization date of the EPA's Military Munitions Rule so that there would be no confusion associated with this rule's "sunset provision." Specifically, it was expected that a DoD firing range rule promulgated under its own authority would prevail in place of EPA RCRA cleanup standards. DoD believed that utilizing their own authorities would provide more flexibility than would be the case under RCRA. Upon promulgation of DoD's rule, the applicable portion of the EPA's Military Munitions Rule would be superseded by the DoD regulation and the EPA would issue a notice indicating that munitions at closed or transferred ranges would not to be considered RCRA solid waste.

DoD's primary concern with UXO-related safety issues prompted it to propose a multiphase process similar to the one used on FUDS and Base Realignment Commission (BRAC) sites. This placed emphasis on safety issues and risk assessment. It also impelled DoD to add a new explosives safety criteria to the EPA's nine existing evaluation criteria used to assess remedial alternatives under the National Contingency Plan (NCP). Because the proposed DoD approach emphasized safety and Superfund cleanup approaches, DOI and other Federal agencies expressed concern that natural resource attributes should be adequately taken into consideration. In part, this undoubtedly was because previous experience indicated that remediation actions had harmed some valuable natural resources. This was important because the mission of these agencies was to manage environmental resources. DoD assured the other Federal agencies that these sensitivities would be addressed in the course of risk assessment and NEPA analyses.

From the outset, it was clear that a major issue for several of the Federal agencies was not the somewhat narrow technical question of clearing unexploded ordnance (UXO) from firing ranges. Unlike DoD operations--which often occur in restricted areas--some of the other Federal agencies were required by law not only to make their facilities open to the public but to encourage public use. These included agencies responsible for recreation and environmentally sensitive areas.¹⁰ While DOI and DOA tended to emphasize issues other than explosives safety, when they did approach the safety issue it tended to be in terms of its relationship to environmental preservation and public access. In addition, the EPA placed emphasis on issues associated with environmental protection and threats to public health. To propose a UXO clearance rule as DoD did, therefore, presented fundamental difficulties for these agencies.

There were a host of concerns related to environmental and public health issues that the Federal resource management agencies raised regarding the deliberative draft rule. These included the factors to be used in prioritizing response actions; the procedures to be applied in resolving disputes among Federal agencies; what responses actions (and who is responsible for taking them) concerning future land use; the role of Federal land managers under various response action circumstances; and the factors to consider and the process to apply in suspending response actions. Associated with these issues were concerns about, among others, the potential failure of a response action to meet remediation goals and objectives; the discovery of previously unknown DoD contaminants; subsequent improvements in environmental remediation technology; and the protection of endangered species, historic resources, and Native American resources.

The EPA also raised a significant number of environmental protection issues. EPA comments on the deliberative draft rule included the following general concerns: DoD jurisdiction vis-à-vis the legal authority under which the rule is proposed; assurance that the views of regulators and the public are incorporated into DoD decisions; the need for specific guidelines to delineate and assess appropriate areas (e.g., core impact areas, buffer zones, etc.); the lack of objective standards for range cleanup and the need to finalize a risk assessment model that is consistent with EPA risk assessment procedures; and need for regulatory oversight of DoD so that there can be independent verification of DoD's findings and results. The EPA also raised more specific concerns including the following: The need for DoD to work with the EPA and the States to evaluate and balance explosives safety with the risks to the environment and surrounding communities; the need take environmental considerations into account when determining the priority for addressing closed, transferred or transferring ranges; the need for DoD to give greater emphasis to the full extent of environmental and ecological contamination when carrying out the range assessment and evaluation process; the need for DoD to consider environmental and human health impacts as well as safety when determining the technical impracticality of implementing response actions; and the need for DoD to rely more on quantitative than qualitative information in developing their streamlined risk assessment model.¹¹

In addition to these Federal agency issues, States and environmental groups became concerned when they learned that the USEPA's proposed Military Munitions Rule contained the proviso that DoD could propose their own rule for firing ranges. As Lenny Siegal, Director of the Pacific Study Center, indicated, "We have been successful at working with the military as industrial cleanup areas, but only because there are EPA rules with teeth behind us." States also became concerned when they learned that they could not impose stricter cleanup rules. In echoing the concern voiced by Federal agencies, Jim Austreng, Coordinator of the California Department of Environmental Protection's UXO division, indicated, "We know the military is the expert at detection and treatment of unexploded ordnance, but there is more to a base cleanup than that."¹²

In the above, we reviewed those factors relevant to the proposed Military Firing Range Rule and summarized significant Federal interagency issues which arose during consideration of DoD's deliberative draft rule. This sets the stage for viewing the rule from a communications perspective. With this in mind, we utilize a semiotic approach since it has proven to be very useful in a variety of fields in performing communications analyses. In general, semiotics sees communication as the production and exchange of meanings in messages. More specifically, it analyzes what the originator references in terms of the structural relationship within a message that gives it meaning, and the relationship of the message (and its components) to recipients of the message. Recipients can utilize the same or differing structural relationships within and among references in messages to interpret meaning. These references are called "signs" (semiotics comes from the Greek word s‘meîon, or sign). Every message is made of signs, and the relationship of one sign to another primarily determines meaning. This meaning can be on a mechanical level of language (viz., denotation) or it can be on the level of meaning that underlies language (viz., connotation).¹³

For the message to be understood and communication to be successful, there must be a agreement among users concerning the conventions and rules that are applied to signs and the relationship of one sign to another. Culture--including organizational culture--plays an important part in successfully communicating and understanding messages. Indeed, semiologists believe that understanding comes through uncovering the conceptual structures that cultures use to organize their perception of the world. These are often the assumptions contained in messages, including messages dealing with technical subject matter. Clearly, the role of the recipient is not simply a mechanical one of "encoding" and "decoding" messages; it involves the active study of both text and culture, and the interaction of users to produce meanings.¹⁴

Semiotics can be a useful communications tool in analyzing the development of the Military Firing Range Rule by focusing attention on those particular factors or elements that DoD chose (or did not choose) to emphasize in crafting their proposed rule. It can also help us to gain insight into the relationship of these factors to the mission-related concerns that other parties--especially other Federal agencies--raised during the review of the deliberative draft. Third, it can also help us to better understand the expectations that non-DoD parties had concerning the nature and purpose of rules that are potentially applicable to multiple organizations. Ultimately, this approach not only highlights potential difficulties in the successful communication among Federal agencies, but it also raises greater concern about meaningful participation by a general public that may have at best only a faint understanding of the interests of large, complex bureaucracies. For without the structural relationship that is associated with a shared understanding, there is very little hope for meaningful participation in the rulemaking process except by those who combine specific technical expertise with cultural understanding.

Of the potential signs available, DoD selected mission-oriented explosives safety as being of greatest importance when crafting the Military Firing Range Rule; this was also an important sign to DOE. It was not, however, of greatest importance to DOI, DOA or the EPA. Because these three agencies worked in a different context (viz., their organizational cultures revolved around different sets of signs), their expectations were quite different. For DOI and DOA, managing resources (viz., parks) that are open to the public was of primary concern; for the EPA, the protection of human health and the environment was of primary concern. While DoD offered a proposed rule which accepted the values and existing structure of the overall rulemaking system, they crafted the contents of the proposed rule by arguing and attempting to negotiate values that were dominant (and of special interest) primarily to DoD. Essentially, the three agencies (DOI, DOA and the EPA) were not comfortable with the proposed rule because DoD "sent the wrong signal" to them.

Among the tools that have been applied by semiologists to such documents such as DoD's Firing Range Rule is content analysis. The aim of this approach is to produce a measurable and verifiable account of the manifest contents of "messages." Usually, this involves a two-step process. First, "units" that are readily identifiable are counted in an entire message in order to determine the frequency of occurrence. These counts are often compared to other units in the message which then can lead to conclusions concerning the choice of units. Second, the units are examined within the context of the message to determine the meaning or reasons why they were of value.¹⁵ For our purposes, the "units" will be words, and the comparison will be in terms of the occurrence of the word "safety" versus "environment" and "environmental."¹⁶ The reason for selecting these terms is to test the supposition that DoD placed greater emphasis on safety issues rather than environmental concerns. We will first look at the occurrence of these words in the deliberative draft and draft rules, and then compare this to the occurrence in two benchmark rules. We will then examine these words in context in order to decipher why they were of value.

In reviewing DoD's deliberative draft of the Firing Range Rule dated 15 April 1996, we note that the word safety occurs approximately 4.5% more than does environment/environmental. Based solely on the occurrence of these words (and not combined with an analysis of the use of words in context), it would seem to run counter to the supposition that DoD placed greater emphasis on safety than the environment. In reviewing the subsequent DoD draft rule dated 26 September 1997, we note that the difference between the occurrence of "safety" and "environment/environmental" is still not significant (with the later appearing approximately 11% more often than the former). Based on this analysis, it appears that the deliberative draft and the draft rules seem to create the appearance of equivalency between safety and environmental factors.

To provide more insight into this matter, a benchmark analysis was necessary. To accomplish this, we reviewed the EPA's final Military Munitions Rule on conventional and chemical explosives because it was a direct precursor to DoD's Firing Range Rule. We found that under this final EPA RCRA rule that the words environment/environmental occurred approximately 70% more often than the word safety. Based on this comparison, some might be tempted to conclude that DoD's draft rule should have had a ratio that tended toward 1.7:1 environment/environmental to safety words rather than the rough comparability found in the draft rule. We caution, however, that in a semiotic analysis there no prima facie reason to assign significance simply on the basis of the occurrence of key terms without performing a contextual analysis.

With this in mind, the next step in performing our content analysis was to examine the context in which the word "safety" appeared in the proposed DoD rule. In the first instance, it was clear that safety considerations were foremost in the minds of authors of the DoD deliberative draft rule. Repeatedly, the deliberative draft rule mentions that safety was the overriding concern. For example, "The SSRE [Site-Specific Response Evaluation] process is similar to the Feasibility Study under CERCLA; however, there is one very important distinction: explosives safety is the overriding concern." (Deliberative draft, 15 April 1996, p. 52 of 123)

In addition, it is important to recognize the sequencing of significant words can indicate an emphasis on values. With this in mind, we note that in nearly every instance the deliberative draft refers to safety first, then human health, and finally, the environment; the most frequent exceptions to this specific string of words involves reference only to explosives safety and human health. While this does not diminish the obvious importance of safety, the norm is to assume that the first term in such strings were considered by the authors to be the most important. Indeed, the DoD deliberative draft rule places this consideration in clear perspective with the following: "Response personnel...must not be exposed to an unreasonable explosive safety risk in order to address less compelling environmental concerns." (Deliberative draft, 15 April 1996, p. 15 of 123) Regardless, we are reminded that the proposed rule did not arise out of safety laws but from environmental requirements.

For comparative purposes, we then examined the use of the word "safety" in the context of the draft rule. As noted above, several Federal agencies met on an informal basis over a one and one-half year period to discuss issues related to DoD's deliberative draft rule, the principal issue being DoD's emphasis on safety. Subsequently, DoD increased the occurrence of the word "environment" only slightly in the draft rule compared to the deliberative draft. So, what does this all mean? From our analysis, it seems to mean at least two things. First, the occurrence of the word safety in both the draft and the deliberative draft largely reflects DoDs emphasis on this issue in their nine-step range response process. Second, the deliberative draft and the draft rules seem to create the appearance of greater equivalency between safety and environmental factors. Although the draft rule did take such steps as eliminating the new explosive safety criteria that DoD suggested be added to the NCP criteria, the emphasis in the draft rule on explosives safety does not appear to differ substantially from the deliberative draft.

Federal rulemaking involves the choice by rulemakers of what meanings they intend to convey. It also involves the active involvement of and interpretation by users of those meanings (e.g., other Federal agencies, State regulators, citizen interest groups, etc.). In order for this process to be successful, there must be a basic understanding that the elements of a proposed rule and the interrelationships of these elements are appropriate to that rule. And for this to be achieved, there must be sufficient cross-cultural commonality among participants such that agreement can be facilitated. Developing rules preponderantly within one cultural frame of reference can fail to acknowledge and incorporate the factors that are important to other cultures--including organizational cultures--to whom the rule would apply. In the above, we saw that this was the case with regard to the development of DoD's deliberative draft and draft Military Firing Range Rule.

Had DoD communicated a "sign" that had a closer relationship to DOIs/DOAs and the EPA's mission and culture (viz., managing natural resources and protecting the environment, respectively) many of the communication problems that ensued during the protracted interagency rule development process could have been minimized. Indeed, our reading of the difference between the deliberative draft and the draft rules raises the prospect that it would not be entirely unexpected if the EPA exercised its option of utilizing Federal laws because it concluded that DoD's draft Firing Range Rule did not adequately protect human health and the environment.

It is always tempting to offer retrospective advice and we are no less susceptible to this temptation. With the above analysis in mind, we suggest that if the EPA (the normative Federal RCRA rulemaking agency) rather than DoD had developed the Military Firing Range Rule, it would have been more likely that fewer communications difficulties would have materialized. This is because most Federal agencies tend to be aware of EPA's mission, are familiar with the "signs" it typically selects, and recognizes how the EPA structures these. It might have made greater strategic sense for DoD to approach development of the Military Firing Range Rule within an overall RCRA environmental context (a set of "signs" equally applicable to all Federal agencies) while at the same time attempting to secure (through negotiation) an important place for their mission-oriented safety concerns.