Feature: The Bomb That Went Off Twice, part 3

By on February 1, 2018

The explosive compound RDX helped make America a superpower. Now, it’s poisoning  the nation’s water and soil.

By Abrahm Lustgarten, ProPublica.org

In early 2000, the EPA issued its most substantial demands in a third order, laying out a specific plan for cleaning up the sites.

It involved gathering and then safely disposing of unexploded munitions material, and gradually treating contaminated groundwater to reduce the size of the plumes. Though that cleanup has since progressed with the Army’s cooperation and has slowed the spread of contaminants, RDX ultimately made its way into public groundwater beyond the base’s boundaries in 2010. In 2011 the Army announced a plan to scrub the aquifer, systematically pumping that groundwater up, treating it, and injecting it back underground until the RDX and other military-related contaminants are nearly gone. That process continues today.

The Pentagon lost its battle with the EPA at the Massachusetts Military Reservation. But it came away with a renewed commitment to fend off liability for RDX contamination.

Read >> The Bomb That Went Off Twice, part 1

Read >> The Bomb That Went Off Twice, part 2

In a speech delivered at an explosives safety seminar in 2000, the Army’s then deputy assistant secretary for the environment, Raymond Fatz, said that at least 20 other military bombing ranges in the U.S. lay directly over sole-source drinking water aquifers, just like on Cape Cod, and warned that because RDX would be so prevalent at these sites, “this has the potential of being a huge problem.”

Pentagon officials feared that if it continued to be held liable under federal environmental regulations, its cleanup costs could bankrupt the Defense Department’s environmental programs, according to the accounts of several lawyers and environmental contractors who have worked with the Pentagon. A typical DOD cleanup cost around $15 million to $22 million. The cleanup at the Massachusetts Military Reservation alone — which continues today — will wind up costing the Pentagon nearly $1 billion.

The military’s budget, though huge, was not infinite and Pentagon officials also worried that protecting the environment would get in the way of training and protecting troops.

“The only other option they had was to go to Congress and try to change the statute,” said Frank.

And that is what the Pentagon did.

As the U.S. went to war in Iraq in 2003, top Pentagon officials saw a political climate that might yield the ultimate reprieve. Defense Secretary Donald Rumsfeld, with a small group of Pentagon lawyers, argued that in order to preserve “readiness” for the fight against terrorism, the Pentagon would need to be freed once and for all from EPA oversight. One of the nation’s largest polluters should be allowed to operate largely outside of the scope of the law, especially, the Pentagon’s lawyers noted, when it came to pollution from explosive chemicals, which included RDX.

“There were those in the department who thought that this was a great opportunity to try to remove environmental impediments,” said Robert Taylor, a former general counsel to the Department of Defense who describes himself as a reluctant architect of the strategy.

The Pentagon proposed amendments to six of the nation’s most important environmental laws that would largely exempt Defense Department lands with ongoing operations from regulation: the Comprehensive Environmental Response, Compensation and Liability Act, or Superfund; the Resource Conservation and Recovery Act, which governs hazardous waste; the Clean Air Act; the Marine Mammal Protection Act; the Migratory Bird Treaty Act; and the Endangered Species Act. The Pentagon negotiated over five specific pollutants, including RDX and perchlorate. The final language of the bill specifically named “munitions constituents,” which include all chemicals from explosives, as substances it sought to redefine as noncontaminants outside the scope of waste handling.

“It was stunning, what they were trying to do,” Frandsen said. “They were basically trying to take all enforcement away.”

The Pentagon argued that after the 9/11 attacks, environmental cleanups would come at the expense of the safety of U.S. forces in Iraq and Afghanistan.

“Preparing America’s military forces for battle,” Raymond DuBois, the deputy undersecretary of defense for installations and the environment, told a House energy and commerce subpanel in 2004, “is critical.”

Others were more hyperbolic, arguing that exemptions were necessary for the sake of “winning the war on terror,” and “protecting Americans from deliberate attacks that would kill millions of our fellow citizens,” as Rep. Christopher Cox, R-California, then chair of the Select Committee on Homeland Security, said.

But this strategy, too, largely failed.

Since exempting the Department of Defense from hazardous waste laws effectively would have transferred the cleanup burden to local businesses and municipalities attempting to turn old military lands into economically productive places, not even reliable Pentagon allies in Congress felt able to support such a step. There were more than 5,000 contaminated military installations and 900 Superfund sites linked to military operations nationwide — enough that almost all members of Congress had such sites in their districts. They rejected the Pentagon’s pursuit of exemptions from the major water and waste statutes.

John Dingell, the longtime Democratic congressman from Michigan who chaired the House committee on energy and commerce and the committee on investigations, and was ranking member during the exemption hearings, put it simply:

“Nowhere has a single set of legislative proposals had so much audacity — and so little merit.”

In 2012, 22 years after it first issued a cancer warning for RDX, the EPA launched a toxicological review to re-examine the risk the chemical posed to people.

To health professionals observing the process, the agency seemed poised to strengthen its cancer warning for RDX. Using Barry Levine’s original study, the EPA had already calculated what it calls a cancer slope factor for RDX, an in-depth quantitative process that attempts to predict the specific dose of a chemical that will cause cancer and which is normally done only for a chemical already believed to pose a serious cancer threat.

In 1998, the agency had added RDX to a list of candidate contaminants for concern — a regulatory status that reflects a risk to public drinking water and is often a precursor to regulation. In 2008, it listed RDX among contaminants to be monitored by water utilities across the country. And as it released formal documents to begin its review in 2013, the EPA summarized its case for RDX’s cancer-causing properties starkly: In the best studies ever conducted, RDX was linked to two different types of cancer, in two sexes among two different species of animals. That checked every box in the agency’s formal criteria for classifying a toxin as a “likely” human carcinogen.

The EPA has a lengthy formal process for reviewing toxins, and it’s aimed at identifying which substances are dangerous to humans and how much people can be exposed to. First, EPA scientists assemble a dossier that includes a thorough assessment of published research, a literature review that can consider hundreds of papers, and a proposed methodology for weighing the evidence. Then those documents are made public, and agency officials incorporate the feedback as they write early internal drafts.

The EPA then shares a more developed draft with other federal agencies — in this case including the Department of Defense — and revises the document further based on their response. Only then is a version released to the public, and only then does an outside advisory committee of experts get to review the draft. The process is repeated, including public comment periods, with the outside scientists submitting criticism before the EPA issues its final assessment.

The Department of Defense told ProPublica that it had anticipated the EPA’s review long before it was launched. By the time the EPA released its initial dossier in 2013, the Pentagon had already funded a number of new scientific studies that raised and amplified doubts about whether RDX caused cancer, or posed any health threat. One of these studies was even paid for out of the very same Pentagon environmental cleanup program responsible for addressing some of the lands contaminated with RDX. These studies made up much of the new research the EPA considered.

One article argued that the models used in peer-reviewed papers to predict how much RDX persists in the organs of mice that ingest it were not reliable. Another showed that mice genes didn’t mutate after RDX exposure, suggesting cancer was a less likely threat.

“Looking at the merits of the science was absolutely something that the department felt that it should do to make sure that the science was well developed and objective,” said Taylor, the former Pentagon general counsel.

In 2006, Gunda Reddy, an Army Ph.D. toxicologist working at Aberdeen Proving Ground in Maryland, was part of a team that re-examined Levine’s original RDX study using the original data and samples. Reddy concluded that the increase in cancer Levine observed was less pronounced than previously thought. Reddy, who has published nearly 100 scientific papers, called the evidence of a cancer risk “equivocal.”

Separately, Reddy force-fed RDX to baby pigs to learn how they digested the explosive and then co-published a study that found that RDX had not accumulated in the pigs’ livers, prompting skepticism that it could cause tumors there. In 2011, a researcher from the Naval Medical Research Unit raised doubts about whether RDX was the cause of noncancerous prostate inflammation observed in rats. Though she, too, had merely reanalyzed old data, she concluded that RDX could be safely ingested by people in far higher doses than the EPA had suggested.

That these studies were funded by the Pentagon, which had a specific stake in how RDX was classified, did not make the research less trustworthy, EPA toxicologists and others involved in the review said. The EPA’s Craig points out the studies helped fill a void in overall knowledge about RDX’s effects — especially their noncancerous effects — and several were validated through peer review.

But scientists directly involved in the review process said the Pentagon shaped the outcome of its studies by the questions its researchers asked, or chose not to ask. The persistent focus of the Pentagon studies on uncertainties in existing research, their aversion to repeating the original rodent studies, and the consistent findings that RDX was less dangerous than previously thought, sparked skepticism.

“You can always get a burger your way,” said Frank, the former EPA federal facilities enforcement attorney. “The scientific process itself has been under attack by the Department of Defense for many years.”

Just as Levine predicted in his testimony in the Utah case, the Defense Department researchers never repeated the original graduated-dose study of RDX on mice to observe whether it caused malignant liver and lung tumors in higher numbers.

Reddy, for his part, wrote in a PowerPoint presentation he and two co-authors made about the EPA review for the Army Public Health Center that if the EPA didn’t loosen its RDX standards based on his research, “training and testing activities will be adversely affected, adversely affecting military readiness.” Furthermore, if “artificially low” environmental standards were set for RDX, “significant resources will be spent [on] cleanup costs associated with unnecessary remediation.”

Military assessments from scientists trained in toxicology, who are not supposed to have an interest in the outcome of their research, are “frankly, highly unusual,’’ said the EPA’s Craig. Reddy did not respond to a request for comment about his statements; it is unclear how he determined what effect changing RDX standards would have on military readiness.

In an emailed response to questions, Mark Johnson, director of toxicology for the Army Public Health Center at Aberdeen Proving Ground, said the notion that the Pentagon had tailored its research on RDX to sway the EPA’s review — or that it was part of an agency-wide campaign to avoid responsibility for RDX — was “simplistic’’ and incorrect.

“There has never been a strategy to manipulate RDX regulation by deciding not to do studies,” he wrote. “Our interest has always been to provide as much information as possible so that the best possible science can be used to reduce uncertainty associated with establishing safe levels of exposure for decision-making.”

J.C. King, the Army’s director of munitions and the chief official responsible for Army explosives cleanups, said the Army simply wants to make sure taxpayer funds are not wasted on unnecessary environmental work.

“That’s our obligation,” he said in an interview at the Pentagon in July. “We’re spending your money. And we spend your money as wisely as we can.”

The Pentagon-sponsored research bolstered the military’s longstanding argument that the health and environmental dangers of RDX are unproven.

By the time the EPA completed the first internal draft of its RDX review in 2014, meant for deliberation between executive agencies, it indicated it was considering a looser and more ambiguous categorization that is less likely to lead to stringent regulation. Instead of declaring RDX a likely carcinogen, it was now prepared to say RDX was merely “suggestive” of carcinogenicity.

Two years later, when that assessment was finally released for review by the science advisory committee — made up of 26 prominent toxicologists, epidemiologists and cancer doctors from American universities — the less serious characterization of the risk immediately raised concerns.

“Why lower cancer risk designation?” asked George Cobb, a member of the EPA’s RDX advisory board and chairman of the environmental science department at Baylor University. Cobb wrote in late 2016 comments that the liver and lung tumors in the mice found by Levine nearly three decades ago alone warranted the more serious warning. “The hazard identification should be … indicative of higher risk,” he wrote.

“The case for this classification presented in the document is not strong,” wrote Stephen Roberts, another member of the RDX advisory board and a professor of public health at the University of Florida. The “likely” characterization, he wrote in 2016, “fits the data for RDX.”

The EPA contends that its overall rating of RDX is more or less unchanged, and that the term “suggestive” reflects the current state of the research.

“Choosing a descriptor is a matter of judgment and cannot be reduced to a formula,” an EPA spokesperson wrote to ProPublica in response to questions emailed to the agency. “EPA’s conclusions are driven by the scientific evidence and risk assessment methods available at the time of assessment development. The strength, reputation, and influence of the [EPA’s environmental risk program] is founded on its scientific integrity, highest caliber of scientific process, and rigorous peer review.”

The EPA declined to allow its advisory committee members to speak with ProPublica. The EPA also has not responded to three public records requests about the board’s meetings and communications, the first of which ProPublica filed with the agency more than 13 months ago.

But other public comments and records from the EPA’s RDX meetings show that from 2013 to 2016, the Pentagon and organizations and agencies friendly to it, including the American Chemical Counsel (an advocacy group that generally lobbies against chemical regulations) and the Office of Management and Budget (which approves the Pentagon’s cleanup spending) either recommended looser standards, pushed the EPA to include more studies that found no negative effects from RDX, or advocated a “weight of evidence” approach.

This would mean considering all studies on the subject and giving each more or less equal weight, regardless of their quality. Since the Pentagon had funded so many studies that found RDX to have less health risk, this approach was more likely to lead the EPA to downgrade RDX’s risk profile.

The EPA, in a statement to ProPublica, insists that the quality of studies is not ignored in this approach. But critics argue that the scales are better balanced when the EPA evaluates the research and allows the best studies to have the most influence — or at least protects them from being dismissed as aberrations.

“If you base it on weight of evidence, and you stack it with a bunch of negative studies, you are going to win,” Melnick, the former NIH toxicologist who submitted comments to the EPA (and does not sit on its advisory committee), told ProPublica. “even if the negative studies are not very good.”

In his formal comments submitted to the EPA, Melnick called the agency’s representation of the Army’s research “a misleading justification” for its decision to downgrade, warning the decision will “protect polluters rather than protecting U.S. citizens.”

Of particular concern to Cobb are the known cancer risks of RDX’s breakdown chemistry, the nitrosamines that were the subject of the Petersen lawsuit in Mapleton, Utah. The EPA’s review for RDX, he noted, hardly takes them into account. In the comments he submitted to the agency, Cobb described the Pentagon-funded research as “rehashes of old studies in attempts to decrease toxicity profiles of RDX.”

The only reliable way to answer the cancer question, Cobb insists, is for the EPA or the National Institutes of Health to fund and conduct their own repeat of Levine’s original 1984 research. “This should be done before any diminution of toxicity characteristics,” Cobb wrote in 2016.

Pentagon officials say they never repeated the study because of how much it would cost. According to Johnson, such a study “could be worthwhile” but would take five years to complete and cost $2 million to $3 million. “There has never been a strategy to not repeat” Levine’s studies, he wrote to ProPublica. But “currently there is no funding to support it,” he said, in the Pentagon’s annual budget, which has reached $585 billion.

In September, the EPA’s peer review advisory committee submitted its final comments for the EPA’s consideration. The committee consented to the EPA’s “suggestive” cancer hazard description, but raised numerous other concerns about the potential for underestimating RDX’s risk.

In a letter addressed to EPA Administrator Scott Pruitt, the committee warned that the EPA was overstating its confidence in some of the data, and recommended an “uncertainty” score three times higher than the EPA’s figure, noting the risk, for example, that “repeated exposures to RDX have cumulative effects” on brain function.

The committee criticized the completeness of the EPA’s data on RDX, saying that it “does not capture all of the potential adverse outcomes, or their severity.” It warned that the EPA’s suggested human exposure limits might not account for the fact that even low doses of RDX could cause behavioral and developmental problems, and didn’t consider other factors — including that the offspring of rats exposed to RDX also showed traces of RDX in their brains.

The EPA is now incorporating the advisory committee’s comments into a final assessment of RDX’s toxicity, which is not expected to be made public until sometime next year.

Jane Caldwell, a senior environmental health scientist in the EPA’s toxicology program until she retired last year, said she had concerns with the EPA’s handling of the RDX question dating back years. Indeed, in 2014, she wrote a memo describing the agency’s reassessment work as recklessly incomplete, saying it had glossed over or ignored important signs that RDX caused rare tumors and carried serious health risks.

In an interview this month, Caldwell said the EPA’s decision to “downgrade,” as she put it, RDX’s cancer status was ultimately a political choice. When it came to RDX, she believed senior agency staff overrode the agency’s toxicologists “to try to avoid pressure from the DOD.”

“It was obvious that it should have been one way, and all of a sudden it went another way,” said Caldwell, who worked at the EPA for 26 years. “The understanding was that from the top of the organization, probably with DOD influence, they had chickened out.”

One EPA scientist directly involved in the final stages of the review process offered a detailed sequence of events before what Caldwell called the EPA’s final capitulation.

The scientist, speaking on condition of anonymity for fear of reprisals from EPA management, said that at least 10 EPA staff toxicologists and statisticians had raised concerns about the significance of rare tumors in the RDX studies, and had made a case for calling RDX a “likely” carcinogen. And upon hearing those concerns, in a high-level meeting at EPA headquarters before the public review draft was released, a dozen EPA branch chiefs and managers reached a consensus to take that step.

Then, a few days later, the decision was reversed.

“DOD wasn’t going to let it go without a fight, and the EPA wasn’t interested in that fight,” said the scientist.

Sitting at a dark cherry wood table in a small conference room outside her office at the Pentagon one day last July, Maureen Sullivan, the deputy assistant secretary of defense for environment, safety and occupational health, would not say whether the Pentagon was happy with the EPA’s conclusions or if she had pressed for a specific outcome.

Though she is the top official overseeing the agency’s tens of thousands of cleanup sites, and administering a $4 billion annual environment budget, she said that she hadn’t given the implications of RDX regulation much thought.

“Honestly, I haven’t asked my staff to do an assessment of that, of what it means to us,” she said.

Coda

In 1982, John Sheehan, one of the scientists responsible for developing RDX, received a kind of lifetime achievement award from the University of Cincinnati and the American Chemical Society. For decades, Sheehan had been haunted by misgivings about RDX’s lasting consequences.

To him, his invention had been a “mixed blessing.” RDX had helped win wars, but it had also helped increase the human toll of those wars, among combatants and civilians alike.

“We tend to assume that we can contain the destructive effects of new weaponry more than history justifies,” Sheehan said in accepting his award.

The chance that RDX’s destructive effects could include damage to the American environment was just emerging when Sheehan gave his speech. Thirty-five years later, the EPA is still wrestling with just how much of an environmental and health peril RDX poses and how to regulate it.

But the EPA is an agency undergoing a radical remaking. In the 11 months since President Donald Trump was inaugurated, the EPA has dramatically scaled back its role as a regulator of dangerous chemicals of all sorts. The changes suggest the agency is less likely to move aggressively to take on Defense Department pollution, including RDX, former agency officials say. Pruitt is considering a relaxation of cleanup standards at Defense-related Superfund sites and chose Nancy Beck — a former American Chemistry Council executive who took the Pentagon’s side on RDX’s risk level — to lead the EPA office that will determine RDX regulations.

For much of the Obama administration, Mathy Stanislaus oversaw the EPA division tasked with hazardous waste management and restoration of lands once used as military facilities. He grew familiar with the Pentagon’s power and effectiveness in fending off EPA efforts to fix toxic leftovers related to its explosive weapons programs, including RDX.

In the current environment, Stanislaus said, a fight that once was difficult might now be impossible.

“What leverage does EPA have to move forward?” asked Stanislaus. “I would say it’s very limited.”
PJH

Abrahm Lustgarten is a senior environmental reporter, with a focus at the intersection of business, climate and energy.

Nina Hedevang, Clare Victoria Church, Alessandra Freitas, Emma Cillekens and Eli Kurland, students in the NYU Arthur L. Carter Journalism Institute graduate studies program, contributed reporting for this story. Other students in the program who also contributed were Lauren Gurley, Razi Syed and Alex Gonzalez.

Jonathan Jones also contributed research for this story.

 

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