Government Owned-Contractor Operated Munitions Facilities: Are They Appropriate in the Age of Strict Environmental Compliance and Liability?

• Author: by Major Mark J. Connor
• Pages: 01

1. INTRODUCTION

   [Wle find in thew contracu [at GOCO munitions plants] a reflection of the fundamental policy of the government to refrain, as much as possible, from doing its awn manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and genius for organization that had made American industry outstanding in the world. The essence af this policy called for private, rather than public, operation of war production plants. . We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory [in World War 111 might depend?

   Government owned-contractor operated (GOCO) munitions facilities have been the primary supplier of the nation's military munitions since shortly after the outbreak of World War 11. Increasingly, however, this unique2 partnership of government and private industry has come under attack.

   'Judge Advocate General I Corns. U S Army Currently arsigned ar Instm~for,

   Ad- rn~~fradllveand C i a Law Division, The Judge Ad>.a'afe GenemI.~

   Sehoal, Charlottes-\?Ue, \'-a. 19S4 to p~sznt Formerly mimed 8s B Thd Counsel. 26 Armored Dm-son(Forward). 1883 1885. BndBIBLlfigB[IUnAftorney, Department oflhe Army EnYlrnnmenial Law Divliion. 1986-1989 B A , We'ertminrfer Callege. 1979. J.D , Uniber-sity of Miuouri-Columbia. 1882. and LL M., The Judge Advocate General Q School, 1990 Member of the Miuoun State Bar This amcle i8 b e d YM" a thesis submitted m partial IBlisfacLmn of the 38th Judge Advocate Officer Graduate Coune

   'Powell v Knlted States Cartridge Co, 339 CS 497, 508 (1960) 'InUnitedStarerCartndgeCo v. Powell 174FZd718, 72618thCa 1948) thecourt noted the unloueneu of the GOCO coneeol statinn

   The scheme. which 1s involved m the pksent rituation of producing mundlons In government owned planti, ' through the agenw of selected quallf>ed C O ~ . mercial manufacturers:' on the basin of cast nlu a (Ired fee for c a m m ~ on

   Perhaps the greatest challenge facing both the Army and pniate Contracton involved in GOCO munitions production has resulted from the growth of the modern environmental movement, whose brth frequently is attributed to the 1962 publication of Rachel Canon's Silent Spn'ng In 1970, Congress reacted to the growing public demand far protection af the environment by passing two major pieces of environmental legislation. the amendments to the Clean Air Act (CAA)3 and the Kational Environmental Policy Act (NEPA) Since then, Congress has passed an additional thirtyseven major and mmor pieces of environmental legislation5 that have spawned an explosion of regulatory implementing guidance e

   Despite the plethora of laws and regulations, environmental clean up has proven to be an elusive goal. Both the time and money necessary to aclueve effective cleanups routinely have been underestimared, fueling a growing sense of frustration on the part of the public and the Congress

   Further feedingthis Sense of frustration has been rhe appearance that federal facilities-particulariy those belonging to the Depart-ment of Defense (DOD) and the Department of Energy (DOE)-have used the principles of savereign immunity and federalism as shields to protect them from federal and State environmental laws and regulations

   Moreover. maw legislators and environmentalists are outraged that the contractors whose operatmns hate caused the contamination found st GOCO facilities are not bemg held financially responsible far the costs of cleanup. This outrage has surfaced during congressional hearings on environmental cleanups at federal facilities.

   I'm from Muskogee, OK. hlr and Mrs. Smith live on 14th Street in Muskogee. OK What they are going to read tomorrow about Tucson is this. They are going to read that Hughes Aircraft Improperly disposed of hazardous vaste [at the Air Force's GOCO Plant #44] that they [Hughes] were under contract to dispose of with the Air Force. But the Air Force has decided that they

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   lQQl] GOCO MUNITIONS FACILITIES

   [the Air Force] is going to pay for it [the cost of the cieanup required as a result of Hughes' improper disposal]. Not only are they going to pay for it, they're going to pay them [Hughes] a profit for cleaning it up. And so, Hughes Aircraft is not [even] being slapped on the wrist, is not being held accountable hke Mr. and Mrs Smith an 14th Street may be If they dump something [hazardous] in their backyard And what am I go-ing to tell them why there are two sets of standards, one for government contractors and one for the public? What am I go-ing to tell them? What do you want me to tell them??

   This article examines whether the GOCO contractual arrangement is still appropriate at Army munitions plants in an era of strict en-vironmental compliance given the strong currents of congressional and public frustration with the pace and cost of environmental campliance and cieanup.

   First, the article examme8 the histoncal rationale behind the GOCO relationship. Next, the article analyzes the contractual structure of the GOCO relationship. The article continues by discussing the ap-plicability of federal and state environmental statutes to the Army's munitions plants Because af their broad impact on GOCO munitions fachties, particular attention will be given to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLAY and the Resource Conservation and Recovery Act (RCRA).w Finally, the article explores alternatives and modifications to the current GOCO contractual relationship and suggest amendments to existing environmental statutes and procurement regulations that apply to Army munitions facilities.

   11. THE GOCO CONCEPT A. HISTORY AND RATIONALE OF THE GOCOCONCEPT

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   MILIT.4RY LAW REVIEW [VOi 131

   manufacturing far the Department of War was conducted solei> at Frankfurt Arsenal'O While a number of commercial firms in the United States manufactured sporting ammunition, no peacetime market existed for mcendiary, tracer, or armor-piercing ammunition. therefore. tit-ihan industry lacked even B basic understanding of how to mass-produce these military staples" ?doreover, deterioration of stockpiles from World War I production and shipments to Great Bri~ tain had depleted total reserves of small arms munitions to less than 400 milhon raunds.12

   The situation for larger caliber munitions was even more distressing. On May 1. 1940, the naoan's stockpile of large caliber ammumtion included only 46.000 37mm anti-aircraft rounds, i5,000 3imm tank and anti-tank rounds. 11.928 five-hundred-pound bombs. and 4,336 one-thousand-pound bombs13As Secretary of War Stinson was to remark in 1043. "We didn't have enough powder [for large calibei munitions m 18401 in the whole United States to last the men we now have overseas for anything like a day's fighting."14 Because only Frankfurt and Picatinny Arsenals were capable of producing new arriiiery munitions, the situation was even more

   The cure to this highly unsatisfactory Situation was the creation of a GOCO murutions industry Under the GOCO concept. the govern-ment owned the production facilities and equipment, and a contractor managed and operated the production facility pursuant to one or more contracts with the government In July 1940. the Ordnance Department signed Its first GOCO contract with Dupont for the manufacture of smokeless powder at what later was called the ln-diana Ordnance By 1944, sevent?~tho

   GOCO facilities were operating. twelxe of which were derated pnrnani) to the manufac ture of small arms ammunitionL7

   From these GOCO plants. a iirtual araianche of munitmns flowed By the close of the war, over forty~one billion rounds of Small arms ammunition and one billion rounds of larger munitions uere produced Io

   IDH Thomion & L ilauo, 1 S Arm) in World \Gar 11 The Ordnance DepanmPnr "Id at 1911Proeuremeni and Supply 191 (1860)

   19911 GOCO MUNITlOYS FACILITIES

   After World \liar 11, a debate raged in Congress over what to do with the GOCO facilities In 1948, Congress finally passed legislation authorizing the military departments to mantain a reserve of industrial facilities for manufacturing wartime mihtary requirements?g The decision to retain a substantial number of the GOCO facilities proved to be wise because a number of the plants were placed hack in full production to support the armed forces in the Korean and Vietnam conflicts.

   Currently, the Army has twenty-seven industrial faciiines that are dedicated to munitions production 2D Sixteen of the munitions facilities are considered to he in active production.l' Of the active facilities, fourteen are operated as GOCOS.~~

   Most of the GOCO munitions facilities in use today originally were designed in the 1940's and were operated extensively through the 1960's Because these penods pre-dated heightened sensitivity to environmental concerns, environmental problems abound at GOCO munitions facilities today,

   Past disposal practices have left many of the GOCO facilities mth serious soil and goundwater contamination problems. Contaminants found at the facilities include radiologic materials, volat~le organic compounds, heavy metals, and explosive compounds. Some are known or suspected carcmogens.2s

   estimate for the ultimate cost is available, by the close of fiscal gear 1989, over $130,000,000 had been spent by the Army in cleanup-related activities at these nine This amount does not include any money spent on facdity modernization necessary to achieve compliance with current environmental regulatory...