[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CURRENT ENVIRONMENTAL ISSUES AFFECTING THE READINESS OF THE DEPARTMENT
OF DEFENSE
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON
COMMERCE, TRADE, AND CONSUMER PROTECTION
and the
SUBCOMMITTEE ON
ENERGY AND AIR QUALITY
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 21, 2004
__________
Serial No. 108-119
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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93-306 WASHINGTON : 2004
____________________________________________________________________________
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------------------------------
COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
RALPH M. HALL, Texas Ranking Member
MICHAEL BILIRAKIS, Florida HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
CHRISTOPHER COX, California SHERROD BROWN, Ohio
NATHAN DEAL, Georgia BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
CHARLES W. ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi, Vice Chairman TED STRICKLAND, Ohio
VITO FOSSELLA, New York DIANA DeGETTE, Colorado
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire CHRISTOPHER JOHN, Louisiana
JOSEPH R. PITTS, Pennsylvania TOM ALLEN, Maine
MARY BONO, California JIM DAVIS, Florida
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
LEE TERRY, Nebraska HILDA L. SOLIS, California
MIKE FERGUSON, New Jersey CHARLES A. GONZALEZ, Texas
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho
JOHN SULLIVAN, Oklahoma
Bud Albright, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Commerce, Trade, and Consumer Protection
CLIFF STEARNS, Florida, Chairman
FRED UPTON, Michigan JANICE D. SCHAKOWSKY, Illinois
ED WHITFIELD, Kentucky Ranking Member
BARBARA CUBIN, Wyoming CHARLES A. GONZALEZ, Texas
JOHN SHIMKUS, Illinois EDOLPHUS TOWNS, New York
JOHN B. SHADEGG, Arizona SHERROD BROWN, Ohio
Vice Chairman PETER DEUTSCH, Florida
GEORGE RADANOVICH, California BOBBY L. RUSH, Illinois
CHARLES F. BASS, New Hampshire BART STUPAK, Michigan
JOSEPH R. PITTS, Pennsylvania GENE GREEN, Texas
MARY BONO, California KAREN McCARTHY, Missouri
LEE TERRY, Nebraska TED STRICKLAND, Ohio
MIKE FERGUSON, New Jersey DIANA DeGETTE, Colorado
DARRELL E. ISSA, California JIM DAVIS, Florida
C.L. ``BUTCH'' OTTER, Idaho JOHN D. DINGELL, Michigan,
JOHN SULLIVAN, Oklahoma (Ex Officio)
JOE BARTON, Texas,
(Ex Officio)
(ii)
Subcommittee on Energy and Air Quality
RALPH M. HALL, Texas, Chairman
CHRISTOPHER COX, California RICK BOUCHER, Virginia
RICHARD BURR, North Carolina (Ranking Member)
ED WHITFIELD, Kentucky TOM ALLEN, Maine
CHARLIE NORWOOD, Georgia HENRY A. WAXMAN, California
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
Vice Chairman FRANK PALLONE, Jr., New Jersey
HEATHER WILSON, New Mexico SHERROD BROWN, Ohio
JOHN B. SHADEGG, Arizona ALBERT R. WYNN, Maryland
CHARLES W. ``CHIP'' PICKERING, GENE GREEN, Texas
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
GEORGE RADANOVICH, California LOIS CAPPS, California
MARY BONO, California MIKE DOYLE, Pennsylvania
GREG WALDEN, Oregon CHRIS JOHN, Louisiana
MIKE ROGERS, Michigan JIM DAVIS, Florida
DARRELL E. ISSA, California JOHN D. DINGELL, Michigan,
C.L. ``BUTCH'' OTTER, Idaho (Ex Officio)
JOHN SULLIVAN, Oklahoma
JOE BARTON, Texas,
(Ex Officio)
(iii)
C O N T E N T S
__________
Page
Testimony of:
Becker, S. William, Executive Director, State and Territorial
Air Pollution Program, Administrators/Association of Local
Air Pollution Control Officials............................ 113
Benevento, Douglas H., Executive Director, Colorado
Department of Public Health and Environment................ 47
Brown, Steven, Executive Director, Environmental
Commissioners of the States................................ 104
DuBois, Raymond, Deputy Under Secretary for Installations and
Environment, Department of Defense, accompanied by Ben
Cohen, Deputy General Counsel for Environment and
Installations.............................................. 25
Ensminger, Jerry, Camp Lejeune............................... 79
Gastelum, Ronald, President and CEO, Metropolitan Water
District of Southern California............................ 109
Horinko, Hon. Marianne Lamont, Assistant Administrator for
Solid Waste and Emergency Response, accompanied by Hon.
Jeffrey R. Holmstead, Assistant Administrator for Air and
Radiation, Environmental Protection Agency................. 44
Kunich, John C., Associate Professor of Law, Roger Williams
University School of Law................................... 127
Lowrance, Sylvia K., the National Environmental Trust,
accompanied by David Baron, Earth Justice Legal Defense
Fund....................................................... 118
Miller, Dan, First Assistant Attorney General, Natural
Resources and Environmental Section, Colorado Department of
Law........................................................ 82
Weber, Brig. Gen. Louis W., Director of Training, Department
of the Army, accompanied by Col. Richard A. Hoeftert,
Director, Army Environmental Programs...................... 38
Material submitted for the record by:
Dingell, Hon. John D., letter dated to June 4, 2004, to
Robert S. Taylor, enclosing a question for the record, and
response to same........................................... 149
Encroachment Impacts on Training and Readiness at Marine
Corps Base Camp Pendleton, white paper entitled............ 152
(v)
CURRENT ENVIRONMENTAL ISSUES AFFECTING THE READINESS OF THE DEPARTMENT
OF DEFENSE
----------
WEDNESDAY, APRIL 21, 2004
House of Representatives, Committee on Energy and
Commerce, Subcommittee on Environment and
Hazardous Materials, joint with the
Subcommittee on Energy and Air Quality,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. , in
room 2123, Rayburn House Office Building, Hon. Ralph M. Hall
(chairman) presiding.
Members present from the Subcommittee on Environment and
Hazardous Materials: Representatives Gillmor, Hall, Issa,
Otter, Sullivan, Barton (ex officio), Solis, Pallone, Wynn,
Capps, Allen, Schakowsky, Gonzalez, Rush, Stupak, Green, and
Dingell (ex officio).
Members present from the Subcommittee on Energy and Air
Quality: Representatives Hall, Cox, Burr, Whitfield, Shimkus,
Shadegg, Pickering, Walden, Issa, Otter, Sullivan, Boucher,
Barton (ex officio), Allen, Waxman, Markey, Pallone, Brown,
Wynn, Green, McCarthy, Capps, and Dingell (ex officio).
Staff present: Mark Menezes, majority counsel; Robert
Meyers, majority counsel; Jerry Couri, policy coordinator; Bob
Rainey, fellow; Thomas Hasenbloeher, majority counsel; Richard
Frandsen, minority counsel; Michael Goo, minority counsel; and
Jeff Donofrio, minority staff assistant.
Mr. Hall. The subcommittees will come to order. I will
start out with an opening statement and then we will hear from
Chairman Gillmor from Ohio of the Subcommittee on Environment
and Hazardous Materials. Others can make an opening statement
if they want to but I think it would take from the time that
our guests have. We run a pretty lose operation for people to
ask the questions they want and extract the answers. We thank
each of you because we know what you have gone through and the
time it is taken and ability to be prepared to come here before
this committee. We thank all of you for it.
I will just get underway here and I want to, of course,
welcome all the witnesses to today's hearing on current
environmental issues that are affecting the readiness of the
Department of Defense. As President Bush has indicated the
other night during his press conference, the simple fact of the
matter is we are at war. We are at war in Iraq and Afghanistan
and more broadly in our continuing effort to combat terrorism
following the attacks in New York and Washington on 9/11.
We ought to be ever vigilant. We have an enemy that has no
capitol we can bomb, no navy we can sink. We have to be very
supportive of our commander and chief and the men and women
that are on the desert over there two oceans away and young men
and women who are training and give them leadership.
I think the simple fact is that our military forces need to
be as ready and prepared as possible. The men and women who
serve this country deserve the best from our citizens. If we
ask them to go in harm's way and defend our freedom, they
deserve the best training and the best preparation that we can
provide.
The Department of Defense has put forward several proposals
addressing the readiness of our armed forces. It is indicated
that these proposals are needed to advance the proficiency and
capabilities of our military and to give them the realistic
training exercises that they require. I think that is very
reasonable.
Increasingly, according to DOD, the sophistication of our
weapon system demands a high level of technical proficiency.
Large scale maneuvers and advanced weapon systems require a
broad geographic area in which to conduct live firing
exercises. We can't train our troops in a video arcade. They
need dirt under their boots and they need to experience a more
realistic training scenario as we can create for them.
So I make no apology for giving the Department of Defense
the benefit of the doubt. When a the Department indicates it
needs further legal authority from this Congress, it is
certainly our duty to critically examine the proposal and
review their impact on environmental law under our jurisdiction
in the local communities that we represent. We will do this
today in a measured and deliberate fashion. But I believe we
should always keep in mind why such training is vitally
necessary and why it carries with it an implicit duty to
Congress to those who wear our Nation's uniform.
On the second panel we will receive testimony that is
critical of various legislative proposals made by the DOD very
briefly. It appears that most witnesses on the second panel
believe that the proposals are either not needed, are overly
broad, and that they would do damage to the environmental laws
of our country.
It is argued that in many cases existing exemptions
contained in the Clean Air Act, CERCLA, RCRA are sufficient and
the rights of citizens and local communities may be adversely
affected if the proposals are enacted without revision.
Listen closely to these concerns as we all will. I doubt no
one's sincerity in the opinions they express or the expertise
that they bring to the table but recognize that the one thing a
former carrier pilot for the Navy knows is the value of
realistic training. I regret that the department was unable to
get us its testimony earlier this morning.
Under Rule 4B, Subsection 1 of the rules of the committee
the Chair has the authority to waive the requirements for
written testimony. The Chair will do this in this case with
some reluctance but not with great reluctance. This hearing is
a long time in coming.
They could have had it in, should have had it in but I
don't have any reason not to allow that testimony now with the
trouble and the problem and the time that they put into it. You
are here and we are having it as a result of the Defense
Department's request to us. We had to wait for the testimony
but we are going to go forward with the witnesses and with the
hearing.
Without objection the Chair proceeds pursuant to Committee
Rule 4E and recognize members for 3 minutes for opening
statements. If they defer, this time will be added to their
opening round of questions.
Mr. Gillmor. Mr. Chairman.
Mr. Hall. The Chair recognizes the gentleman from Ohio.
Mr. Gillmor. Thank you, Mr. Chairman. Today's meeting will
delve into a long anticipated survey of proposed changes to
several environmental statutes over which our full committee
has jurisdiction. I think it is right appropriate today we are
having a joint hearing, Mr. Hall of the Energy and Air Quality
Subcommittee and my subcommittee, the Subcommittee on
Environment and Hazardous Materials.
The Defense Department's legislative proposals cuts across
the jurisdiction of both our subcommittees and I am pleased
that we are able to have a hearing that will comprehensively
allow all of our members a chance to understand these issues.
As an Air Force veteran I can comfortably say that military
readiness is vital to our freedom as Americans and we should do
everything in our power and in our capacity as legislators to
ensure that the men and women who defend our liberties have the
best preparation they can to protect our way of life. We owe
them, their families, and all U.S. tax payers these assurances.
We also, though, have an obligation to protect the air we
breathe, the water we drink from contamination and the soil on
which our children play from toxic exposure. Twelve years ago
this committee played a major role in enacting the Federal
Facilities Compliance Act, a law which granted national
security exemptions but also clearly required Federal entities
to pay Federal and State environmental laws in the manner that
was expected of everyone else.
My own experience with DOD responses to handling UXO and
that made a challenge in offering settings has been marred by
years of frustrations and long efforts to get the Army to clear
unexploded ordinance lodged in the channels of Lake Erie,
Ohio's coast. They want every training activity conducted at
Camp Peary there has made our military a more capable fighting
force. I support training exercises like these across our
country. I also want to be sure that as our soldiers leave
their military uniforms for civilian life, that what is left
behind does not threaten the quality of life they fought to
protect.
As our witnesses provide us their perspectives on these
proposals, I will go over three threshold questions we need to
address today. Most Federal environmental laws provide
statutory compliance exemptions if the President determines the
exemptions are crucial to preserving national security. In
addition, the U.S. EPA has negotiated a set of processes for
administrative exemptions for Defense Department readiness
activities. We need to know why in the real world in the
practical application that these exemptions have been
inadequate.
Second, when Congress provided statutory exemptions from
the Marine Mammal Protection Act, the Endangered Species Act,
and the Migratory Bird Tready Act, the Defense Department had
specific examples of places where readiness training had been
compromised. I think as we examine how execution of the
requirements under Superfund and Clean Air and Safe Drinking
Water Act or RCRA have interfered with readiness training,
specific examples in these areas would, I think, also be very
helpful to the committee.
Third, the Defense Department states their proposals only
refer to active ranges and other missions. The question is how
does the Defense Department define the universe of places where
the proposals will apply and what kind of response does DOD
plan in the way of maintenance and remediation of those
facilities and that those ranges and bases which will have the
way to environmental cleanup under the bill.
I think those questions are an essential starting point
toward discussion but by no means the only ones. I look forward
to the work of our panel and I thank our witnesses for their
help in dealing with this problem.
I yield back.
Mr. Hall. Thank you, Chairman Gillmor. At this time the
Chair recognizes Congressman Dingell, ranking on Commerce,
long-time Chairman of Energy and Commerce.
Mr. Dingell. Mr. Chairman, thank you. Thank you for holding
this hearing. For 3 years the Department of Defense has been
trying to circumvent the laws that affect protection of the
public and the public interest from environmental degradation
at the hands of the Defense Department and other polluters.
This is clearly not in the public interest. The
administration's proposal to exempt the Defense Department from
important environmental laws will imperil drinking water
supplies, eliminate vital State and Federal authorities
necessary to protect the public health and the environment.
Nowhere has a single set of legislative proposals had so much
audacity and so little merit. I would note that the Defense
Department is supposed to defend the Nation, not to defile it.
Some of the facts are here to be found to be unquestioned.
First, the Clean Act and the two hazardous waste laws have
never resulted in actual adverse impacts upon military
readiness but the Defense Department like an old maid rushes
around looking under the bed to find about what they may
complain or what might threaten them. I could understand this
from somebody else but I expect our Defense Department to be
made of sterner stuff.
EPA Administrator Whitman testified as such and the DOD
officials have not cited a single instance in which any of
these three laws has adversely affected readiness. Our
witnesses from the Defense Department should be ready to
address this with me.
Second, each of these laws already contain provisions that
allow the President in his discretion to exempt any base or
training facility from their requirements if it is in the
paramount interest or the national security interest of the
United States. We will address this matter this morning.
Under the Defense Department proposals, ground water
sacrifice zones would be created. The contamination from
perchlorate, demolition explosives, or other munitions
constituents would be allowed to migrate through thousands of
acres of an aquifer until it has reached outside of the base
and until it affects the broader public interest and the public
health. It would go on until it has migrated offsite to public
drinking water wells or otherwise poses an imminent threat.
Only then would State and Federal officials regain
authority under the Solid Waste Disposal Act to investigate and
to address the contamination. This would be after the horse was
out of the barn.
Even at that point the State regulatories would not be able
to require cleanup of the source on an operational range.
Operational ranges, I would note, are the size of many States
in the United States. EPA and State sampling and inspection
authorities currently available to investigate ground water
contamination under operational ranges will be eliminated.
Furthermore, Section 7002 of the Solid Waste Disposal Act
is the only Federal authority that drinking water utilities,
States, or private citizens have available at this time with
contamination from perchlorate or Royal Demolition Explosives
(RDX) that may be creating an imminent and substantial
engagement to the public health.
The DOD proposals eliminate this critical public health
authority. Removing perchlorate and other munitions
constituents from the definition of release under Superfund DOD
would rob the Agency for Toxic Substances and Disease Registry
of its authority to determine health effects from exposure.
We know from the tragic experience of Marine families who
were poisoned at Camp Lejeune, North Carolina, how important
these authorities are and we will try and instruct the Defense
Department on its duty to protect not only its own personnel
but the citizenry generally from this kind of misbehavior.
DOD tries to minimize the impact of these proposals by
saying they only apply to operational ranges. That is, I would
note, 24 million acres. The land mass is six U.S. States. For
example, the General Accounting Office reports that DOD is
claiming 152,000 acres as operational ranges at Camp Lejeune. I
would note that is approximately equal to the entire acreage of
that installation. Moreover, not a single example has been
cited by the Defense Department where these laws have affected
military readiness and we will address that today.
We have, however, countless examples where DOD's lethal
legacy of toxic waste has contaminated surface and ground water
and forced the closure of private and public drinking water
wells and threatened the health of American citizens, including
military personnel.
At the Iowa Army Ammo Plant the creek running off the base
was so polluted with Royal Demolition Explosive and TNT that it
ran red in color and the locals reported seeing pink raccoons.
Imagine that. Over 100 private drinking water wells had to be
shut down.
Finally, DOD seeks a blanket exemption from the Clean Air
Act which would give the DOD the right to emit air pollution on
an ongoing basis regardless of the ultimate affect on public
health. No constraints could be imposed on DOD for any matter
related with this particular situation.
DOD would have us ignore all air pollution from military
readiness activities at a time when all other sources of air
pollution are subject to strict controls that impose
substantial economic burdens. There is no basis for such a
blanket exemption and American citizens and businesses will pay
the price if DOD is given a free pass under the law to admit
unlimited amounts of ozone precursors, sulfur oxides, carbon
monoxides, and other toxic emissions.
In conclusion, these defects in the DOD proposal
demonstrate once again why this committee's expertise and
understanding are vital and should not be ignored. They also
tell us that somebody is needed to defend the United States
from its own Defense Department when the Defense Department
decides it is going to run wild. These DOD exemptions are
unnecessary, unjustified, unwise, and must be rejected. I thank
you, Mr. Chairman.
[The prepared statement of Hon. John D. Dingell follows:]
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, thank you for holding this hearing. For three years
the Department of Defense (DOD) has been trying to circumvent the
Committee on Energy and Commerce. That would not be in the public
interest. This Committee has the expertise and exclusive jurisdiction
over the Clean Air Act and the Solid Waste Disposal Act and primary
jurisdiction over the Superfund statute.
The administration's proposal to exempt the Defense Department from
these important environmental laws will imperil drinking water supplies
and eliminate vital state and federal authorities necessary to protect
public health and the environment. Never has a set of legislative
proposals had so much audacity and so little merit.
Several facts are unquestioned. First, the Clean Air Act and the
two hazardous waste laws have never resulted in actual adverse impacts
on military readiness. Former EPA Administrator Whitman testified as
such and DOD officials have not cited any instances in which any of
these three laws has adversely affected readiness. Second, each of
these laws already contains provisions that allow the President, in his
discretion, to exempt any base or training facility from their
requirements if it is in the paramount interest or national security
interest of the United States. Currently President Bush is using this
authority to exempt Groom Lake Air Force Base in Nevada from certain
requirements of the Solid Waste Disposal Act.
Under the Defense Department proposals groundwater sacrifice zones
would be created. The contamination from perchlorate, Royal Demolition
Explosive, or other munitions constituents would be allowed to migrate
through thousands of acres of an aquifer until it migrated off-site to
public drinking water wells or otherwise posed an imminent threat. Only
then would state and federal officials regain authority under the Solid
Waste Disposal Act to investigate and address the contamination. Even
at that point state regulators would not be able to require cleanup of
the source on an ``operational range.''
These proposals, if adopted, will result in huge additional costs
to the American taxpayer to clean up contamination that has been
allowed to spread throughout large aquifers. EPA and state sampling and
inspection authorities currently available to investigate groundwater
contamination under ``operational ranges'' will be eliminated.
It defies logic to wait until we have public health impacts before
state and federal regulators have authority to act. Further, Section
7002 of the Solid Waste Disposal Act is the only federal authority that
drinking water utilities, states, or private citizens have available if
contamination from perchlorate or Royal Demolition Explosives may be
creating an imminent and substantial endangerment to human health. The
DOD proposals eliminate this critical public health authority.
And by eliminating perchlorate and other munitions constituents
from the definition of ``release'' under Superfund we are robbing the
Agency for Toxic Substances and Disease Registry of its authority to
conduct health assessments or perform epidemiologic studies to
determine health affects from exposure. We know from the tragic
experience of Marine families who were poisoned at Camp Lejeune, North
Carolina, how important these authorities are.
DOD tries to minimize the impact of its proposals by saying they
only apply to ``operational ranges.'' The General Accounting Office,
however, reports that DOD is claiming 152,000 acres as ``operational
ranges'' at Camp Lejeune. The size of the entire installation is
153,000 acres. Thus, exemptions would apply to more than 99 percent of
Camp Lejeune. It also appears that DOD is claiming that the entirety of
Eglin Air Force Base in Florida, 463,000 acres, is an ``operational
range'' and 86 percent of Aberdeen Proving Ground in Maryland is an
``operational range.''
Nationwide, DOD claims that more than 24 million acres are
``operational ranges''--a land area the size of the states of
Massachusetts, New Jersey, Connecticut, Delaware, New Hampshire, and
Hawaii. We also know some of the ``operational ranges'' are on land
owned by the states and leased to DOD. DOD has refused to identify
which ones at the same time they are seeking to pre-empt state
authorities.
According to DOD's definition, an ``operational range'' could have
been last used 20 years ago, 40 years ago, or even 100 years ago. The
DOD definition also includes buffer zones where the public is allowed
to hunt, fish, or engage in other recreational activities.
Moreover, not a single example has been cited by the Defense
Department where these laws have affected military readiness. We have,
however, countless examples where DOD's lethal legacy of toxic waste
has contaminated surface and groundwater and forced closure of private
and public drinking water wells. At the Iowa Army Ammo Plant, the creek
running off the base was so polluted with Royal Demolition Explosive
and TNT that it ran red in color and the locals reported seeing pink
raccoons. Imagine that. Over one hundred private drinking water wells
had to be shut down.
We also know that at least forty DOD facilities have known
perchlorate contamination of surface or groundwater. Yet very little
testing has occurred of the groundwater under the vast acreage of
``operational ranges'' that would be exempted by these proposals. The
reason we have these state, federal, and citizen suit authorities is
because Congress has said that we will not trust the agency who caused
the pollution to be the one charged with protecting public health and
the environment.
Finally, DOD seeks a blanket exemption from the Clean Air Act,
which would give DOD the right to emit air pollution on an ongoing
basis, regardless of the ultimate effect on public health. DOD would
have us ignore all air pollution from ``military readiness''
activities, at a time when virtually all other sources of air pollution
are subject to strict controls that impose substantial economic
burdens. There is no basis for such a blanket exemption and American
citizens and businesses will pay the price, if DOD is given a free pass
under the law to emit unlimited amounts of ozone precursors, sulfur
oxides, and carbon monoxide.
Under DOD's proposal, citizens will be told that their air meets
Clean Air Act requirements. The DOD proposal would amount to
environmental ``doublespeak''--by indicating that the air is clean--
even when it is not. There is ample flexibility in the Clean Air Act
and its implementing regulations to accommodate DOD's needs and DOD has
provided no example of a situation in which the Clean Air Act has
hindered military readiness. DOD's exemptions are unjustified and would
jeopardize the legitimate efforts of all other sectors to achieve
actual clean air.
In conclusion, these defects in the DOD proposal demonstrate, once
again, why this Committee's expertise and understanding are vital and
should not be ignored. The DOD exemptions are unnecessary, unjustified,
and unwise.
Mr. Hall. Thank you, Mr. Dingell.
At this time the Chair should recognize Ms. Solis whose
ranking on the Environment and Hazardous Materials
Subcommittee. We note the presence of the chairman of the
Commerce Committee, Mr. Barton, a gentleman from Texas. We both
agreed to have Mr. Barton for the time he consumes.
Chairman Barton. Thank you, Chairman Hall and Chairman
Gillmor, for holding this joint hearing on this very important
issue. I listened with interest to my good friend from
Michigan's opening statement and I must respectfully disagree
with conclusions that he came to in that opening statement.
I don't think that there is anything more important in our
Nation's military preparedness than we totally support our own
forces, both those on active duty and those that are training
in the instant that they need to be on active duty to defend
our Nation.
It is a possibility, if not a fact, that some of the
environmental laws that this committee has helped to craft over
the years on a bipartisan basis are now being used, or could be
used, in a way that can constrain those forces from the defense
of our Nation.
That is the purpose of the hearing today, take a look at
these proposals that the Department of Defense have come
forward with and determine that if there is a legislative tweak
that needs to be made whether we can do that. I am going to
listen to the witnesses with an open mind that I hope, like all
our members on both sides of aisle of this committee, or these
two subcommittees, that at the end of the day whatever it takes
to maintain preparedness in the defense structure of our armed
forces we agree to do that.
I want to thank our witnesses on the first panel for coming
today. We don't hear from our folks in the armed services too
often so we are glad to have you all here. I want to especially
thank General Weber who at one point in time was a fellow in my
office in his younger days and is one of the fine military
leaders who last year led our troops to liberate Iraq and
Baghdad. He was in the division that I believe was the point of
the sphere and headed that up. I want to commend you for your
service to our country.
Today's hearing is to discuss whether the existing
environmental laws and the regulations that come from those
laws are infringing upon our Nation's military to effectively
and efficiently train our young men and women to defend our
freedom and standard of living.
The Pentagon has determined that the changes are necessary
to the Clean Air Act Superfund and the Resource Conservation
Recovery Act. That is the purpose of the hearing to see if
their decision is something that we agree with.
On our second panel today we are going to hear from, I
believe, seven witnesses who believe that somewhat differently
than the first panel and that is the purpose of having an open
and balanced hearing. I am very interested in the proposal put
forth by the Defense Department regarding the Clean Air Act.
Last week the Environmental Protection Agency changed the
rules for standards of attainment or ozone. They eliminated the
1-hour standard which was set at 120 parts per billion and
replaced it with an 8-hour standard at 80 parts per billion.
That change in the standard, which EPA has the right to do
under the Clean Air Act is going to put half of our Nation's
citizens in nonattainment for ozone in terms of the military
infrastructure an additional 32 bases that were not in
nonattainment areas before last week are now in nonattainment.
If, in fact, lowering the ozone standard from 120 parts per
billion on a 1-hour basis to 80 parts per billion on an 8-hour
average makes it difficult to do the training mission, that is
something that we need to know about and that is something that
we need to look at very carefully. When you are looking at
parts per billion it doesn't take much to effect that standard.
We must have our military at the height of preparedness if,
in fact, we are going to call on them to defend our country. We
must ensure that our defense funds are utilized in the most
efficient and effective manner possible so we need to check
these regulations and see if they do hamper our ability to
train our troops.
I am also concerns that as we approach another round of
base realignment and closure that those facilities that have
existing capacity to take on new missions will be overlooked
due to Clean Air Act restrictions. One such installation is not
in my congressional district but very near it, the Joint
Reserve Naval Air Station Base in Fort Worth, Texas, that we
commonly refer to as Carswell.
I am very interested in how these new standards in the
Clean Air Act might affect the BRAC Commission. I want to thank
both my subcommittee chairmen for calling this hearing. I think
it is very important. I am glad to see that we have so many
members in attendance because it shows this is a serious issue
and it needs to be addressed seriously.
I want to end by stating that it would be ironic if because
our military forces are constrained even unintentionally in the
defense of our country because of environmental restrictions
there well could come a day when there might not be a
government to administer those same departmental laws we are so
concerned about.
With that, Mr. Chairman, I yield back the balance of my
time.
Mr. Hall. Thank you, Mr. Chairman, and I join you in being
pleased to give this committee an opportunity to say the effect
of the regulations you operate under and why you operate under
them as you do. Not just that something might occur or afford
the basis for allegations to a court but how you are actually
affected by them. That is the thing that we are going to give
you plenty of time to answer today.
Now, it is my pleasure to recognize Congresswoman Solis who
is ranking on the Environment and Hazardous Materials
Subcommittee. Thank you.
Ms. Solis. Thank you, Mr. Chairman, and thank you for
holding this hearing and thank you to the witnesses that are
here. Also my good friend Ron Gastelum who is here who will be
on the second panel representing the Southern California water
district. I am very appreciative of him being here.
I appreciate the opportunity to discuss today the request
for exemptions from three very critical public health and
environmental statutes in this committee. My heart goes out to
the soldiers in Iraq and elsewhere and their families who wait
for them to come home. Increasingly we know that there are
issues there that we need to address and I fully understand and
appreciate that we need to be militarily ready. I hope that we
can work with the Department of Defense to see that we can
continue to secure and provide the necessary security for our
troops.
However, at this time I am extremely disappointed that for
the third time the Pentagon is requesting that we choose
between public health, the environment, and military readiness.
Activities I don't believe in this context are mutually
exclusive and these extensions, in my opinion, are dangerous.
They would endanger, in my opinion, the public health and
welfare of military families and our surrounding communities,
endanger our drinking water supply for many in the Nation and
undermine the legal ability of States and citizens to protect
themselves from these threats.
In fact, back in April 2000 I recalled then Governor Bush
knew these sites were problems when he said, and I quote, ``The
Federal Government is considered the Nation's worst polluter.''
Pentagon representatives have repeatedly tried to justify these
exemptions by fighting concern about growing interest and
contamination and cleanup. The military is preparing for a
train wreck, they say. I believe the train wreck is the
collision between contamination caused by the military where it
governs itself and public health. It spoke of existing military
contamination is astounding. The full extent of contamination
at closed sites nationwide may not even be known until 2012.
At least 300 ground water wells in Southern California in
the district I represent have been shut down due to
contamination. In the city of Baldwin Park we have one of the
first cleanup operable units there to treat for chloric
treatment. That is one of the first in the Nation. Other water
facilities in my district are following suit. My community
faces over the next 15 years at least the cost of $200 million
as the result of cleanup of perchlorate contamination.
This devastation is largely the result of the Department of
Defense related activity so it is no surprise that I have heard
from both the Metropolitan Water District who will be speaking
to us and the San Diego Valley Water Association who make up
about 60 water agencies in California. These agencies are
concerned that acting only after the damage has been done could
result in unnecessary public health risks and unacceptable
losses of water and resources.
The cost of these exemptions could be overwhelming both
monetarily and to the public health. Thirty-three percent of
military families live in military housing on installations.
Would we be putting those people at risk if we do nothing?
I can't support legislative proposals that we would put at
risk my district's water supply, the public health, and the
environment because the military fears that there is a train
wreck coming. I have yet to see where the existing flexibility
fails the military but I do see where these exemptions would
put our military families and their children at risk.
I truly believe that the worst train wreck we could be
facing is if we allow the military to both contaminate our
water, our air, and our land, and determine on their own when
to decide to lean up. Military families who sacrifice so much
for this country deserve better.
Thank you and I yield back my time.
Mr. Hall. Thank you. May I recognize the gentleman from
Maine, Mr. Allen. Two republicans in a row spoke when Chairman
Gillmor and I spoke initially. I think fairness calls on you to
have two in a row. We recognize you for 3 minutes.
Mr. Allen. Mr. Chairman, I thank you for that kindness and
also for holding this hearing. I thank the witnesses, all of
you, for being here today. For the third time in 3 years the
Department of Defense has asked Congress for blanket exemptions
from public health laws.
In my 6 years on the Armed Services Committee I never saw
any evidence that our environmental laws had degraded
readiness. The Department of Defense to my knowledge has not
offered a single example of how these laws impede military
readiness. The United States armed forces are the best trained,
best prepared fighting force in the world.
Our military defends American citizens from deadly threats
but so does the Clean Air Act. The bedrock principle of the
Clean Air Act is that all Americans deserve to breathe air
requisite to protect public health. According to the act, it
does not matter whether the nitrogen oxide that causes asthma
comes from an FA-18 or a Boeing 737.
In Maine because of imported dirty air we have the highest
rate of adult asthma in the country. The State has regulated
every major source it could find, yet our coastline still is
violating the 8-hour ozone rule. This year we are regulating
emissions from portable gas cans.
In fact, DOD tells us that complying with public health
laws is too difficult. They asked Congress to order States to
ignore DOD's pollution when they measure whether air is safe to
breathe. In the words of DOD's proposal EPA ``shall approve''
State plans that do not actually meet national ambient air
quality standards when pollution making people sick is produced
by ``military readiness activities.''
DOD's proposal would mean that the air citizens breathe
could continue to cause high rates of asthma, emphysema, and
even premature death as long as the deadly pollutants are from
military instead of civilian sources.
The Clean Air Act already includes provisions allowing the
president to exempt DOD from complying with clean air
requirements but he hasn't used those. When the military argues
it needs to move or replace aircraft more rapidly than the
Clean Air Act allows, DOD is really saying it needs to increase
deadly emissions more rapidly than the Clean Air Act allows.
Has the Clean Air Act hindered our soldiers in Iraq, has
RCRA reduced the effectiveness of our mission in Afghanistan?
Our armed forces must be combat ready but air quality and
drinking water protection do not have to be compromised. We
need balanced laws that protect both our national security and
the health of our citizens. We have done both since World War
II and I know that we can maintain that balance.
Thank you. I yield back.
Mr. Hall. Thank you. The Chair recognizes Mr. Cox, chairman
of the Select Committee on Homeland Security for 3 minutes.
Mr. Cox. Thank you, Chairman. I am not here in the
subcommittee devoted to issues such as energy and air quality
or on the Energy and Commerce Committee. I am over at the
Homeland Security Committee where we are asking different
questions. I am concerned that it is all too easy to beat up on
the Department of Defense for doing its job.
I am distressed that not a single word has been spoken this
morning about winning the war on terror or about protecting
Americans from deliberate attacks that would kill millions of
our fellow citizens and, incidentally, destroy our environment
perhaps for centuries if, for example, a dirty bomb were to
spread microscopic plutonian through our air.
The question has been asked what is the problem. Is there
really a hit to readiness from the application of our
environmental laws designed for the civilian economy to war
fighting. It should serve as a prima facie response to that
question that, of course, there is a tradeoff with readiness
when billions of dollars from our defense budget are devoted to
mitigation of the environmental effects of war fighting, and
when military trainers are required to apply to the President
of the United States or the Secretary of Defense every time for
a temporary exemption when they want to conduct a specific
exercise.
The Department of Defense has asked Congress only to make
clarifications to environmental law in order to provide
flexibility for specific training activities that are necessary
to maintain the Nation's armed forces. This proposal, the
Readiness and Range Preservation Initiative, was partially
enacted by Congress when it passed the 2004 DOD authorization
bill and today we are considering only those outstanding
provisions affecting four areas of interest to our committee:
RCRA, CERCLA, also known as Superfund, the Safe Drinking Water
Act, and the Clean Air Act.
The training and testing fundamental to our military's
readiness requires far more flexibility than is currently
provided. Technology today allows some of the soldiers battle
field training to be conducted in computer simulators but there
is no substitute for the kind of experience that can only be
gained from realistic battlefield training. There is no
substitute for training with weapons and equipment under
battlefield conditions.
Military training and testing activities aren't only
necessary, but frequent and regular. Military trainers should
not have to apply to the President or the Secretary of Defense
for individual temporary exemptions for every single exercise,
particularly if the inevitable result is that the President
would want to grant the exemptions in the interest of national
security.
Manufacturing red tape only so that we can cut it does not
come cheaply. It cost lives in the field whenever our soldiers
are not fully and properly trained. Today's bureaucratic red
tape is an obstacle to regularized military training and it
does impede our military's effectiveness.
There can be no doubt that today's Department of Defense
takes environmental protection seriously, Mr. Chairman. Mr.
DuBois and Mr. Cohen have worked closely with the Congress and
with EPA, as Horinko will testify, to comply with existing
laws. Both the Department of Defense and the EPA have shown a
keen interest at minimizing environmental problems and they are
investing more and more money each year in cleanup and in
research and development of new technologies to prevent
pollution.
I will simply say in closing, Mr. Chairman, that one
instance of which I am particularly aware, the Department of
Defense has worked closely with a company in Orange County,
California, which I represent, Liquid Metal Technologies, to
develop an alternative weapon, an alternative to depleted
uranium emissions that have proven toxic, if not severely
toxic.
Because of the possibility of environmental impact, we are
actually developing different weapons, in this case a weapon
made from a tungsten composite alloy to lessen the impact on
the environment. These are very, very significant investments
that the taxpayer is making. I hope today's hearing will help
dispel some myths both about the specific reforms that the
Department of Defense is requesting and about the need for
them. Thank you, Mr. Chairman.
Mr. Hall. Thank you, Chairman. I recognize Ms. Capps,
gentlelady from California, for 3 minutes.
Ms. Capps. Thank you, Mr. Chairman, for holding this
committee meeting and this hearing. I ask that my full
statement be made a part of the record. I have the distinct
honor of representing two military bases in my congressional
district, Vandenberg Air Force Base and Naval Base Ventura
County.
I visit these places often and know first hand that they
are important elements in our national security system, key
players in the local economy, and very good neighbors. Their
exemplary standards in upholding environmental regulations
makes them the pride of the community and desirable neighbors
to have. Their military accomplishments are notable as well. We
all support the need for first class training and readiness for
U.S. troops but as a public health nurse I find the Pentagon's
proposal for sweeping exemptions from public health laws
extremely troubling.
For decades these laws have kept our children and our
community safe from hazardous waste and air pollution.
Unfortunately, the blanket exemption saw by the Pentagon will
have the most serious consequences for the very people living
on and near military installations. For example, the proposal
we can see only State and Federal programs designed to address
ground water contamination. No one should have to worry about
what comes out of their faucet or what their children drink.
Regrettably that is not the case at many of our military bases.
For more than 50 years the Pentagon has used perchlorate in
rocket fuel without regard to its impact on the environment and
on water supply. Nationwide there are at least 40 DOD
facilities with known perchlorate contamination of ground water
or surface water including Vandenberg Air Force Base and Naval
Base Ventura County.
Perchlorate poses serious health risks, particularly for
newborn children, pregnant women. Among other illnesses,
perchlorate exposure has been linked to physical and mental
retardation and thyroid cancer. It has seeped into the ground
in at least 22 States including Colorado, Massachusetts, and
Maryland and the situation is particularly serious, as my
colleague Hilda Solis has mentioned, in California.
It has been detected in 58 California public water systems
that serve almost 7 million people. While the Pentagon bears
significant responsibility to identify and clean up
contaminated drinking water, it does not want to take
responsibility for its action.
First, the Pentagon's proposal may impair the ability of
local government's water utilities, developers and others to
paying reimbursements from DOD for their cost in cleaning up
the Pentagon from emissions related contamination. Second, the
Pentagon's proposal is inadequate to protect human health and
the environment.
Under legislation contamination must move beyond the
lateral boundary of the range before it is considered off range
and can be addressed. Preventing and controlling contamination
of the source is the only sure way to protect water supplies.
This proposal prevents EPA and States from getting to the
source. They must retain authority to investigate and address
the contamination.
Waiting for contamination to move offsite before taking
remediation action will have catastrophic results. Finally,
Pentagon's proposal would block EPA and States from requiring
the Pentagon to identify or address an on-range source of
contamination. They would be completely powerless to require
any action under RCRA or CERCLA.
Mr. Chairman, we shouldn't make it easier for the Pentagon
to pollute and harder for them to clean it up. Our military
families should not be made to suffer from pollution. The
military has not made a compelling case that these exemptions
are needed. Statutory exemptions already exist that allow
waivers for these laws in the interest of national security on
a case-by-case basis. We don't have to sacrifice our Nation's
public health to have strong national security.
I yield back and thank you.
Mr. Hall. Thank you, gentlelady. The Chair recognizes
Congressman Issa from California.
Mr. Issa. Thank you, Mr. Chairman, and I ask permission to
revise and expand and include extraneous materials.
Mr. Hall. Without objection.
Mr. Issa. Thank you. It is no accident that this
subcommittee is heavily weighted with Californians. California
is the major home to many of our military personnel. It used to
be the home to even a greater amount of military personnel
before several rounds of BRAC. Camp Pendleton is in the heart
of my district so I am acutely aware of some of the challenges
faced by the U.S. Marines when they are not in Iraq where
almost all of them are today.
Our training capability is severely restricted in an
attempt to comply with California law. As most of you know,
California today is not an attractive place for heavy industry,
manufacturing, or anything else that does anything other than
perhaps sits in an office. That is something that California
has to deal with.
But as I look today at the men and women in uniform in
front of us, I realize that we don't have that same choice. It
is not an open supply and demand. People cannot simply move to
other States or other countries if the rules are not allowing
them to train and train properly.
I don't know that any of us can determine what is the best
balance between military readiness and the environment. What I
will say, though, is that as late as last year former Governor
Gray Davis was continuing to allow MTBE, a known carcinogen to
be poured into the ground water of California. When given a
mandate with a waiver, he waived the MTBE in favor of another
oxygenate. Why did he do this? He named it as cost. He felt
that it was prohibitive for California to switch to ethanol
which would be more costly so he delayed getting rid of a
ground water contaminate. I am not here to say anything in the
way of how that decision was made beyond his own statement but
it is very clear that every day decisions have to be made
between the best interest of people of the State and absolute
clean air and clean water. In our own State our own Governor
made that decision.
When I see the need for military readiness, something that
cannot be weighed in dollars and sense and can only be weighed
in human lives in either winning a war or ceasing to be the
country that we are, I have to say here today that if it is a
close call the military has to be given that opportunity to
make it is case and make it in a simple enough way to not slow
up military training.
Last but not least, Mr. Chairman, I believe that the United
States military has consistently improved it is standards on
air quality and water quality and its utilization. We no longer
see fuel dumped on the ground the way we did 20 years ago. We
no longer see a lot of things that in the past have led to
pollution. I would certainly hope that all of my colleagues
from California particularly would recognize that speaking of
the sins of the past and the cost of cleanup does not really
deal with the modern military today and the limited exemptions
they ask for.
With that I yield back.
Mr. Hall. I want to thank the gentleman. At this time I
would recognize Mr. Brown of Ohio for 3 minutes.
Mr. Brown. Thank you, Mr. Chairman. Thanks to our witnesses
for appearing today. The Bush Administration's plan to exempt
Defense Department facilities and activities from America's
environment protection laws is a solution in search of a
problem. Superfund law, solid waste disposal law, the Clean Air
Act already include national security exemptions. That the
Pentagon has used these authorities sparingly, if at all, makes
it clear that this, in fact, is an illusory program.
President Bush's first EPA administrator Christine Todd
Whitman 1 year ago told the Senate Environment Committee, ``I
don't believe there is a training mission anywhere in the
country that is being held up or not taking place because of
environmental protection regulations.''
There is no reason to believe that assessment is any less
true today. DOD has polluted 140 Superfund sites. Look at in my
State, Wright Patterson Air Force Base located near Dayton,
Ohio, just 10 miles from the city of Dayton. The Department of
Defense has dumped benzine, which causes cancer in humans. It
has dumped perchloroethylene which causes liver and kidney
damage in people. It has dumped ethyl benzine which causes
birth defects. These hurt our soldiers. They hurt our soldier's
families. They hurt our communities.
It just makes me wonder about the priorities of this
administration. I heard last night on the floor of the House of
Representatives Mitch Schakowsky talk about the Department of
Defense and the Bush Administration's inattention to providing
body armor.
We have all heard those stories at home, providing body
armor to our troops month after month after month after month
even though it is clear as more hearings are held around this
capital that we knew we were going to war far in advance of the
actual attack on Iraq. I am amazed that this administration
doesn't seem that interested in providing the kind of armor for
the Humvees to outfit the Humvees to make them safer.
We all know what this administration has done once these
service men and women come home un terms of their treatment of
veterans in cutting education and healthcare benefits. To
ignore this the environmental part and accept the Bush
Administration's proposal would be a foolish mistake that could
have great consequences for public health.
The Bush plan also sends a terrible message. It tells the
American people the Federal Government is serious about
cracking down on your pollution as citizens, as private
businesses, but not on our own. The Federal Government should
be leading by example on environmental protection, not looking
for loopholes.
All this begs the question is this really about readiness,
this proposal, or is it really another excuse for more
environmental rollbacks from the Bush Administration. America's
Governors, attorneys general, State and local government
officials and leading environmental protection and public
health organizations all oppose unanimously this misguided
proposal. We should oppose it, too.
Thank you, Mr. Chairman.
Mr. Hall. The Chair recognizes Mr. Burr of North Carolina.
Senator, you have 3 minutes.
Mr. Burr. I thank the Chair and would say to the Chair how
welcome we are to have him in the Chair, I think, for his first
subcommittee as chairman of the Energy Subcommittee.
Mr. Chairman, we are all sensitive to the needs of the
military and the needs of our national security. There is no
doubt that our environmental laws affect the training of our
troops across this country and the decision of our military
leaders.
We are being asked to provide a blanket exemption for
military readiness. I for one have found it a little bit
difficult to distinguish the terms, the technical difference
between military readiness and routine operation. Clearly this
is important. I hope today to try to get some clarification of
that term.
Today we will hear also about a ground water contamination
problem at Camp Lejeune, North Carolina, the health effects of
the continued consumption by military men and women and their
children. I don't believe this should affect the exemption
sought today by DOD. I would say that is supported by the
Secretary of Health and Natural Resources in a recent letter
that he has sent the Secretary of North Carolina.
I would ask the members, Republican and Democrat, on the
two subcommittees to focus on the need for accountability and
the need for answers as to how this contamination of our ground
water happened and why it took so long for the military to
respond and why there is no a comprehensive effort to
understand the full effects of that contamination to not just
children but to the adults who served and were exposed.
Mr. Chairman, trust is absolutely essential when one asks
for the exemption that I understand DOD is asking for. I would
also have to ask the OD to think about that as they continue to
pursue this request and when they continue to think about the
deficiencies and their stewardship of the basis and the lives
that are affected by that deficiency.
I will assure you, Mr. Chairman, I have more questions of
today's panelists than I will have time to ask. Therefore, I
would ask the Chair might now unanimous consent that all
members be allowed to submit written questions and to receive
answers.
Mr. Hall. I thank you. Without objection it is done.
Mr. Burr. I thank the Chair for that consideration and I
would yield back.
Mr. Hall. I thank the gentleman. The Chair notes the return
of Congressman Green, the gentleman from Texas, recognized for
3 minutes.
Mr. Green. Thank you, Mr. Chairman. Like my colleagues, I
will only read a brief part of my statement put I would like
the full statement placed in the record.
Mr. Hall. Without objection.
Mr. Green. I want to thank you and Chairman Barton and our
ranking members for holding the hearing today to assert the
committee's proper jurisdiction over the Clean Air Act
Superfund and resource conservation recovery act. We rarely
have military hearings in this committee so I want to take the
opportunity to note that this is the 167th anniversary of the
Battle of San Jacinto where Texans and Tehanos defeated the
military dictator Santa Anna and won their independence.
The site is now in my new congressional district that I
visited many times growing up in Houston. To my knowledge there
is no need for an environmental cleanup work on a battle
ground. Reading the Department of Defense proposal and today's
testimony, I am very concerned with our ability to maintain the
public health in and around current military facilities should
these proposals become law.
Every Member of Congress I know appreciates and will fight
hard in Congress for military installations in our areas. Many
communities are centered around and anchored by military bases.
For the Houston area we have nationally important gasoline
refining capacity and the sky patrol is by the Texas Air
National Guard F-16s based out of Ellington Field, which have
brought necessary levels of security of comfort to me and my
constituents.
It may not attract national notice but the chemical
refining areas in my district in Houston's east side have been
under repeated high alert for terrorist activity in recent
months. Those F-16 patrols are critical for the homeland
defense mission. Ellington's operations are currently budgeted
for our area's Clean Air Act plan, as they should be, so there
is no conceivable problem in our backyard.
But there are other less desirable environmental impacts
that the military may have like destruction of napalm and other
hazardous munitions. These activities have definite
environmental consequences. The Houston area is a good case
study because we are facing a lot of challenges in our healthy
clean air standards.
Many industries have been asked to make a great deal of
sacrifices to reach these goals. I don't know if it would be
fair to ask our private sector industries that make the
Nation's gasoline and the military's jet fuel to make costly
pollution control upgrades while we allow the Department of
Defense and Congress to exempt ourselves from the Clean Air
Act.
I don't want to blame the military. I don't want to blame
the ones who are here--that is our job. If there needs to be
something done, then we ought to provide the funding and be
able to do it because, again, if you are going to be good
neighbors whether it be the private sector of the public sector
we ought to do that.
Mr. Chairman, again, I will ask for my full statement to be
in the record and I will yield back my time.
Mr. Hall. Without objection. The Chair would remind the
gentleman from Texas that San Jacinto may not still be in your
district because the legislature is meeting down there.
The Chair recognizes Butch Otter, the whip of the Energy
Subcommittee, No. 1 whip.
Mr. Otter. Mr. Chairman, in the interest of time, I am
going to waive my statement and ask that it be printed in the
permanent record.
Mr. Hall. I appreciate that.
[The prepared statement of Hon. C.L. ``Butch'' Otter
follows:]
Prepared Statement of Hon. C.L. ``Butch'' Otter, a Representative in
Congress from the State of Idaho
Thank you, Mr. Chairman, for providing us with the opportunity to
discuss what is one of our government's most important
responsibilities: preparing our armed forces for success as they defend
and protect our nation.
It seems obvious that any defense authorization should enable our
military to meet our nation's environmental standards without
jeopardizing the training and protection of our troops. And yet in this
country some of the greatest obstacles to preparing our troops for
battle are burdensome environmental regulations that, while well
intended, have far reaching implications. I agree that clean air and
clean water are important. But when our stifling over regulation
prevents business and government from doing their jobs--like preparing
our soldiers for battle--I question whether or not those regulations
are doing what they were intended to do. Laws and regulations that were
never created to interfere with the day-to-day operations of our
military ranges and training grounds now force government and private
industry alike to prepare for an all-out attack by litigation and
fines.
For the past few years, I have continually voted to free the
Defense Department from problems caused by our environmental laws,
enabling the military to prepare members of our armed forces to defend
our freedoms across the globe. I will continue to do so. But I can't
help but wonder if the government realizes that these same
environmental laws and regulations that bind down our military also
burden the businesses and industries across our country. Yet while the
U.S. government can regularly come to Congress or the President for
exemptions and waivers that allow them to go about their business, the
American businessman cannot and is forced to wade through the mire of
restrictions, fines, and limitations. How can we say that these
regulations are too burdensome for our government while continuing to
impose them on our businesses and private industries? I support the
changes we will discuss today, as I have supported those in the past. I
simply ask why these same changes should not apply to the rest of
Americans as well.
Mr. Hall. The Chair recognizes the gentleman from Michigan,
Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman. Thanks for calling
this hearing. Welcome to all our witnesses. I particularly look
forward to hearing from Mr. Ensminger's testimony who, as
someone who resided at Camp Lejeune, North Carolina during the
1980's, unfortunately knows all too well the devastation these
contaminants can cause to people who are exposed to them. I
know it can't be easy for him to appear before us today but I
commend him for sharing his personal story with us.
The Department of Defense has asked Congress to exempt the
military from a number of major environmental laws including
the Resource Conservation and Recovery Act, the Clean Air Act,
and the Comprehensive Environmental Response Compensation and
Liability Act.
DOD wants us to exempt from these laws 24 million acres.
That is roughly the size of six different States, Delaware,
Connecticut, Hawaii, New Jersey, Massachusetts, and New
Hampshire. Why should Congress exempt the Nation's largest
polluter?
In my district, for example, there is a National Guard
training center that is comprised of over 147,000 acres of what
the DOD considers operational ranges. Included in these
operational ranges are recreational facilities such as lighted
softball diamonds and picnic areas used by service mean and
women and their families which would also be exempt from clean
up of harmful toxins.
DOD has failed to identify any instances in which there has
been a negative impact on military readiness due to these laws.
In a memo to the military secretaries written by Deputy
Secretary of Defense Wolfowitz, he stated that DOD has
demonstrated that they have been able to comply with
environmental requirements and also conduct necessary military
training and testing.
Former EP Administrator Whitman also testified before
Senate committee last year that there is not a training mission
anywhere in the country that has been delayed due to
environmental protection regulation. So what is the problem?
The law already allows national security exemptions for any DOD
facility if necessary for military readiness.
Why is it necessary for Congress to provide DOD with a
sweeping exemption? What I find particularly disconcerting
about these proposed exemptions is that the DOD would be
allowing toxic substances to remain exposed anywhere on a
military range where they could reach into ground water,
surface water, or the air outside of these ranges weakening the
ability of States and EP to protect communities from exposure
to toxins if DOD could also delay Superfund cleanup of these
toxins until they have spread beyond boundary range.
It is like saying we are the military and we shouldn't have
to play with the same rules.
Mr. Chairman, I have three former military bases in my
district, KI Sawyer, Kinslow and Wurtsmith. While these bases
have been closed for more than a decade, we are still cleaning
up the environmental messes left behind by DOD when they left
town. We can't ill afford to exempt DOD from environmental
standards at the expense of our constituent's health.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Hall. All right. The Chair recognizes Mr. Shimkus, the
gentleman from Illinois, vice chairman, Energy and Air Quality
Subcommittee, for 3 minutes.
Ms. Shimkus. Thank you, Mr. Chairman. I will try to be
brief. I want to welcome General Weber. General Weber used to
command a brigade, I believe. We talked before. The brigade he
commanded was taken over by my classmate, Dave Perkins, who was
well known for leading the assault in Baghdad.
The point I want to make is this. Is military trained to be
prepared for the crisis? So the rules and regulations here are
being debated based upon a crisis that could occur on training
and readiness. That is what they do. That is what we train
them. That is what we pay them for. This is a good debate that
we are having. I have three concerns that I will talk about
quickly.
We are going through a round of BRAC. I have colleagues
here from the State of Illinois. Many you know of our concerns
at Scott Air Force Base. What these provisions may allow if
unchanged, BRAC could be significantly affected for people who
want to in the realignment of forces an inability to bring new
planes to the air field because, one, it is under a State SIP
or, two, if it is, then you may have to go to the county for
other rules and regulations and changes. What this change would
say is give a 3-year phase in to meet the Clean Air Act SIP for
that State. I think that is reasonable and especially with BRAC
I think it is important.
Second thing is I am also from Illinois. It is known as a
very litigious State. We are involved in a medical malpractice
crisis where doctors are leaving the State, 70 in my home
county. We don't like law that is written in the courts as
legislators. My fear to my friends who are law enforcement,
hunters, and the like is is the camel's nose under the tent
when law gets enacted by lawsuits filed throughout this
country. I am referring to the Alaska case right now and how
that might affect sport shooting ranges, how it may affect
hunting, local police ranges and the like.
The third thing, I do want to say some things positive that
the military is doing, the positive steps that have been taken
to improve the environment. Many people know that I promote
renewable fuels here, ethanol and bio-diesel. The Department of
Defense has been the No. 1 user of bio-diesel. Scott Air Force
Base uses 75,000 gallons. Camp Lejeune, 147,000 gallons. An 80-
20 mix cleans up the diesel exhaust by 50 percent. I think
those are good things, positive moves that the Department of
Defense has done to clean up the air quality. Actually
commercial fleets are moving in that direction, too, and I want
to applaud that.
I want to thank you, Mr. Chairman and yield back my time.
Mr. Hall. Thank you, gentleman. The Chair recognizes the
gentleman from New Jersey, Mr. Pallone, 3 minutes.
Mr. Pallone. Thank you, Mr. Chairman. I appreciate the
opportunity this morning to examine DOD's proposed exemptions
from long-standing environmental laws in the name of military
readiness. But I have to say I am greatly concerned that while
the proposed exemptions are presented as being narrow in scope,
the actual implications to public health and environmental
health would be sweeping.
I am mostly concerned that much of the exemption language
lacks clarity and I have found little documentation that
substantiates the military's need to make such gross changes to
our Nation's environmental statutes.
I know two of my Democratic colleagues have already
mentioned that both the Christine Todd Whitman and Paul
Wolfowitz have already testified that there was little to no
difficulty in maintaining military readiness while complying
with existing environmental laws and the current exemptions
afforded by the DOD.
In reviewing the exemptions proposed for RCRA and CERCLA, I
am troubled by terminology and definitions that I find
ambiguous. I am worried about the implication that such lack of
clarity would have in my State of New Jersey that has some of
the worst contaminated active, inactive, and formerly used
military sites.
For instance, how would the proposed exemptions from CERCLA
or RCRA impact the former Raritan Arsenal in my district where
both soil and water contamination threaten people who currently
work on the site and residents nearby. Migration of onsite
contaminated water is now reaching the Raritan River that could
pose a threat to both people and the environment.
The exemptions proposed under RCRA would allow the toxic
materials at many sites across the country to remain exposed
and allow further contamination of ground water. Additionally,
I would point out that the exemptions from CERCLA that DOD is
proposing would delay clean up of sites such as Raritan until
the contamination migrated well beyond the base boundaries at
which time the problems could be ten times as dangerous and
exorbitantly more expensive.
I would also like to note that I find the DOD request to be
exempt from the Clean Air Act provisions ironic, given EPA's
report last week that 474 cities in this country are out of
compliance with ozone standards. While millions of Americans
are exposed to unhealthy air and elevated ozone levels, the
administration seeks not only to roll back mercury emission
standards, but proposes to exempt a significant contributor to
air quality nationwide.
While the administration places more burdens on the States
to comply with Clean Air Act provisions and ozone standards, it
is doing little and, in fact, undermining the State's ability
to improve its air quality.
The Bush Administration's attempt to undermine current
environmental law under the guise of military readiness not
only damages the environment that this body has worked so hard
to protect, but it also puts Americans, military families,
military personnel, and civilians at risk of adverse health
impacts from the known or suspected contamination of over 15
million acres of operational, closed, or formerly used military
installations. The Federal Government has a responsibility to
abide by the very laws it creates. If not, how can we expect
others to abide by them? Thank you, Mr. Chairman.
Mr. Hall. Thank you, gentleman. The Chair now recognizes
the vice chairman of the Commerce, Trade, and Consumer
Protection Subcommittee, Mr. Shadegg of Arizona.
Mr. Shadegg. Thank you Chairman Hall and Chairman Gillmor,
for holding today's hearing on the impact of environmental laws
on the ability of our armed forces to maintain their readiness.
Regardless of one's stance on the specific proposal before
us today, I hope we can all agree that it is imperative for our
men and women in uniform to be given the best, most realistic
training possible before being deployed. Vigorous training by
our armed services saves lives, increases unit effectiveness,
and wins wars.
Especially with our current military commitments around the
world, we cannot afford to let readiness slip. We cannot sit
idly by while red tape and bureaucratic nonsense threaten our
military's ability to meet its obligations. We simply cannot
risk such failures where national security is concerned.
At the same time, our military bases and ranges across the
country that once were removed from major metropolitan areas
are now threatened by encroachment and by an influx of
regulations that could block future activities essential for
military readiness--such as the rollout of new technologies or
the simple relocation of equipment.
In Arizona, which I represent, Luke Air Force Base and the
Barry Goldwater Range are prime examples of this trend. Both
must overcome significant encroachment and environmental issues
for operations to continue, despite providing the only active
duty F-16 training in the world.
At the same time, this is a very challenging issue. For
example, the question of perchlorate, which is being discussed
here today, is a serious issue in my congressional district and
for my State. We must be sure that issues such as perchlorate
and other issues which affect our environment are handled in an
appropriate and correct fashion in order not to further damage
our economy.
It seems to me that we must strike the appropriate balance
here, and I look forward to hearing the witnesses' testimony on
precisely what that balance is and how the proposal before us
today would affect both our environmental obligations and our
readiness obligations.
With that, Mr. Chairman, I yield back.
Mr. Hall. Thank the gentleman for giving us back a minute.
The Chair recognizes Mr. Gonzalez, a gentleman from Texas, 3
minutes.
Mr. Gonzalez. Thank you, sir. First of all, I welcome this
opportunity and I thank the Chair for holding this important
joint hearing. Thank you to all the witnesses, especially those
that wear our Nation's uniform. Thank you for so much that you
do that we are able to meet here today and enjoy the wonderful
freedoms of a democracy.
I am going to echo some words that I think were spoken by
my colleague on the other side, Congressman Burr, and that is
really making a distinction in order to establish the necessity
of maybe relaxing certain rules and regulations when they apply
to readiness as opposed to everyday training and how we make
that distinction, who makes that distinction. Who can question
that distinction is going to be really important.
This Nation has always recognized that in times of war the
law many times is silent and that extends all the way up to our
civil liberties as shocking as that may sound. What we seek
here today is a particular law, a particular regulation that is
not just going to be silent. It is not going to really exist
and will not be applied at anytime that a certain determination
is made.
The reason that we recognize these type of emergency
situations is because in the past wars have been definite in
nature. They have been against other sovereign nations. they
have certain geographical limitations. they almost started at a
certain date and you could see when they were going to end.
The war on terrorism is entirely different so whatever we
enact here in Congress that would excuse any entity or any
department from compliance that could affect welfare of our
communities must be weighed very carefully. I hope that we will
remain focused and really see the pressing need to make certain
laws that are absolutely necessary. When we regulate our
environment for the safety of our communities that we will look
the other way and relax enforcement.
In the final analysis every community will welcome a
military installation and San Antonio is one of those proud
communities. I am sure you have visited and maybe even were
stationed at Fort Sam Houston. Every installation really is a
citizen and a neighbor of our community. It would never wish to
do anything to harm that community so it is a partnership.
With that spirit, I hope that we will proceed today. Thank
you.
Mr. Hall. Thank you, gentleman. The Chair recognizes the
gentleman from Oregon, Mr. Walden, 3 minutes.
Mr. Walden. Mr. Chair, I am going to give you all 3 back
and hold my statement and comments for questions.
Mr. Hall. The Chair reluctantly recognizes Mr. Markey from
Massachusetts.
Mr. Markey. And you will soon find out why.
Mr. Hall. I knew I would pay for that.
Mr. Markey. More people die each year from diseases in the
United States than have died in all the wars that have ever
been fought in the history of the United States combined--more
children, more adults. So while we honor what you do, and each
one of us respects what you do, we also have to be cognizant of
what poses the greatest risk on a daily basis to the health and
well being of every American.
A woman in the United States is six times more likely to
contract breast cancer as a woman in Japan. There is something
in our air. There is something in our food. There is something
in our water. There is something in our environment which is
causing this six times greater contraction of breast cancer
amongst women.
The same thing is true for asthma. The same thing is true
for prostate cancer. It is in our society. It is in our
environment. It is poisoning and killing Americans at a much
higher rate than other people around the country. For an
asthmatic child in the United States they don't know the
difference between military pollution and civilian pollution.
All they know is that they need an aid to help them breathe.
That is not right.
The Department of Defense stands for something that is
really very important in protecting our country but DOD should
not stand for Department of Dumping or the Department of
Disease. Pollution is pollution. It kills people. It causes
cancer. It causes asthma. It causes lung disease. It causes
problems which have tremendous adverse affects on our country.
If we exempt the Department of Defense on the basis that
they produce patriotic pollution but we ignore the consequences
for the health of millions of people. There are right now 130
Department of Defense Superfund sites in the United States. One
is in Massachusetts, the Massachusetts Military Reservation
where because of that site the drinking water for 250,000
people has been contaminated.
What are the long-term consequences of that? The President
has the ability to exempt any military project on a case-by-
case basis if he makes that case to the American people. He
should retain that ability but there should be no blanket
exemption which is given to the Department of Defense. The
consequences for the health of our country are that many, many,
many, many more people will die if we give that exemption to
the military than will ever be saved by allowing them to
pollute in the name of national security.
Thank you, Mr. Chairman.
Mr. Hall. I thank the gentleman. The gentleman knows I was
joking with him. We have had a feud for 24 years but I don't
have a better friend in Congress.
I recognize at this time Mr. Wynn, a gentleman from
Maryland. Three minutes.
Mr. Wynn. Thank you, Mr. Chairman. I will defer at this
time.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. Janice Schakowsky, a Representative in
Congress from the State of Illinois
Thank you, Mr. Chairman, for holding this hearing today. The most
important job of the federal government is to protect the health and
safety of the public. We do that in a number of ways, including through
the protection of our environment. Today, we are being asked to examine
the Department of Defense's effort to secure ongoing and expanded
exemptions from core U.S. environmental laws.
The government's role in carrying out both national security and
environmental protection are of paramount importance. Protecting the
environment and public health and guaranteeing our security needs are
all goals that can and must be met. The Department of Defense wants us
to believe we must exempt it from environmental regulations if we want
to be safe. But if we grant the Department of Defense exemptions from
our most fundamental environmental laws, the environment and public
health would be undermined.
The Department of Defense is making the case that we have an
either-or choice to make. The Department's argument is that either we
uphold our environmental laws or we guarantee our security. I do not
agree with the Department's reasoning. The Department of Defense is one
of the nation's worst polluters and we have every right to demand
better environmental performance while enjoying the same level of
security for America.
DOD officials themselves have repeatedly insisted that the military
is a good environmental steward. Shortly after Iraq invaded Kuwait,
then-Secretary of Defense Dick Cheney told an assembly of military
planners and environmentalists:
Defense and the environment is not an either-or proposition. To
choose between them is impossible in this real world of serious
defense threats and genuine environmental concerns. The real
choice is whether we are going to build a new environmental
ethic into the daily business of defense.
The Department of Defense does not need the exemptions it is
requesting. The Department has yet to identify a single instance when
the environmental protection laws in this proposal have impaired
military readiness activities. Each of these laws already grants the
President the authority to exempt the Department of Defense from
compliance in the case of a national emergency, such as a terrorist
attack.
Implementation of DOD's request could cause a train wreck for our
environment and for the health of the American public. Recently, 39
State Attorneys General, including Illinois Attorney General Lisa
Madigan, agreed, on a bi-partisan basis, that the Department of
Defense's proposal would, ``significantly impair [their] ability to
protect the health of [their] citizens and their environment.'' (April
19, 2004 letter to Senate Committee on Armed Services, Senate Committee
on Environment and Public Works, House Committee on Armed Services and
House Committee on Energy and Commerce)
Granting the Department's request now would be unwise and
unnecessary. Existing and possible sources of drinking water would be
destroyed and the air quality would continue to suffer.
Again, Mr. Chairman, thank you for holding this hearing today. I
look forward to hearing the testimony from our witnesses on this
important issue.
Mr. Hall. All right. Finally, we are ready for the folks
that are the main attraction here to be recognized at this
time. At this time I recognize Mr. DuBois who is Deputy Under
Secretary for Installations and Environment. I recognize you
for 5 minutes but I am not holding the clock on you.
Thank you for your patience, all of you. You know how we
feel and now we want to find out what the hard actual facts
are. Thank you for appearing and thank you for the opportunity
for us to ask you about the effect of the regulations we have,
the actual effect and not the supposed or the guessed effect,
how you are affected and what it has to do with your ability to
defend this country. Thank you.
STATEMENTS OF RAYMOND F. DuBOIS, DEPUTY UNDER SECRETARY FOR
INSTALLATIONS AND ENVIRONMENT, DEPARTMENT OF DEFENSE,
ACCOMPANIED BY BEN COHEN, DEPUTY GENERAL COUNSEL FOR
ENVIRONMENT AND INSTALLATIONS; BRIG. GEN. LOUIS W. WEBER,
DIRECTOR OF TRAINING, DEPARTMENT OF THE ARMY, ACCOMPANIED BY
COL. RICHARD A. HOEFTERT, DIRECTOR, ARMY ENVIRONMENTAL
PROGRAMS; HON. MARIANNE LAMONT HORINKO, ASSISTANT ADMINISTRATOR
FOR SOLID WASTE AND EMERGENCY RESPONSE, ACCOMPANIED BY HON.
JEFFREY R. HOLMSTEAD, ASSISTANT ADMINISTRATOR FOR AIR AND
RADIATION, ENVIRONMENTAL PROTECTION AGENCY; AND DOUGLAS H.
BENEVENTO, EXECUTIVE DIRECTOR, COLORADO DEPARTMENT OF PUBLIC
HEALTH AND ENVIRONMENT
Mr. DuBois. Thank you, Mr. Chairman, Chairman Hall and
Chairman Gillmor, Chairman Barton and, of course,
Representative Solis and Representative Dingell, members of
this subcommittee, the two subcommittees. This opportunity to
testify today is extremely timely. The issues you have heard
carry with them emotion and passion, as they should. We hope
that our testimony today and answers to your questions will
clarify some of the issues that seem to have been occasionally
mischaracterized.
I am joined today by an distinguished panel of our Federal
Government as well as Mr. Doug Benevento, the head of the
Colorado Department of Public Health and Environment who is on
the closed circuit television.
On my left, your right, let me introduce the Honorable Jeff
Holmstead, the Assistant Administrator of EPA for Air, the
Honorable Marianne Horinko who is the Assistant Administrator
of EPA for Solid Waste.
Then we have with us, as has been mentioned by a number of
the members, Brigadier General Bill Weber, the Director of Army
Training and, most recently, Third Infantry Division in Iraq;
Colonel Richard Hoeftert, Director of Army Environmental
Programs. On my immediate left my very close colleague,
especially on this issue, Mr. Ben Cohen, the DOD Deputy General
Counsel for Environment and Installations.
Now, preparing America's military forces for battle,
preparing them and their equipment for fighting men on the
first day of battle is critical. No one would argue with that.
We at the Department have said many times before that we need
to train as we fight.
But the reality, of course, is that we end up fighting as
we have trained. Our collective task as it has been articulated
by a number of you this morning is to find the necessary, find
the appropriate balance between the use of military lands for
their unique readiness purpose and the protection of our
Nation's environmental heritage.
There are approximately 650 million acres of public land in
the United States. It is nearly one-quarter of the land mass of
this country. Congress has set aside a little less 30 million
of those acres for defense purposes. I might note here that it
is less than 1.2 percent of the entire land area of the United
States. These lands have been entrusted by the Congress to the
Department and we must use them efficiently and we must care
for them properly. In executing these responsibilities we are
committed to more than just complying with the applicable laws
and regulations.
We are committed to protecting, preserving, and, when
required, restoring and enhancing the quality of these lands.
We need various types of topography, various types of land
configuration in order to train because we know not where are
young men and women in uniform will be deployed.
It is the Department's goal to manage and operate our
military testing and training ranges to support their long-term
viability on meeting our commitment to protect human health and
the environment. DOD has implemented, and continues to refine,
a comprehensive operational range sustainment program.
There are a number of elements to that program which we
will no doubt get into today. We have also assembled a
comprehensive inventory, an inventory that is very important of
our operational ranges that we continue to refine and update
annually as Congress has asked. In addition, the Defense
Planning Guidance for fiscal year 2004 requires the military
departments to ``assess potential hazards from off-range
migration of munitions constituents'' and to begin remediation
no later than fiscal year 2008.
In fact, already the military departments are actively
executing that policy guidance and ensuring that our ranges are
assessed and remediation where necessary is under way. Our
budget documents require funding to be put into place for these
tasks so we have in place today both elements of a successful
program.
Two years ago, as has been mentioned, the administration
submitted to Congress an eight-provision legislative package,
the Readiness and Range Preservation Initiative (RRPI).
Congress enacted three of those provisions as part of the
National Defense Authorization Act for fiscal year 2003 and two
more in 2004. We are grateful to Congress for its adoption of
those provisions. We have resubmitted this year for the
National Defense Authorization Act our authorization act, the
three provisions which we are going to address today.
Why? Why did we resubmit them? There are evolving and
unprecedented legal challenges and interpretation which
continue to raise concerns for us. That is to say, the proper
use and management of our training and test ranges will be
constrained should the Congress not act. Military training
activities are increasingly being scrutinized under industrial
pollution laws designed to further constrict. The extension of
those laws and regulations we believe were never intended for
application for military readiness activities.
I think it is important in the few minutes remaining to
define what is and what is not in our legislative package.
Recently press accounts suggest that DOD is seeking blanket or
sweeping exemptions of environmental law and that, I read this
this morning, we are, ``playing on national security fears.''
I would remind our critics that we seek no such relief for
our closed ranges, nor for our contractors, nor for our
nonreadiness activities, nor for existing cleanup obligations
concerning chemicals like perchlorate. I would also remind our
critics that they have conveniently forgotten that what we have
proposed is in large measure what the Clinton defense
department sought.
Our provisions are narrowly focused on only military
readiness activities and operational ranges. We have worked
closely with many of our stakeholders, particularly the States
and members and staff of the Congress to clarify the language
of these provisions and have revised our proposal to clearly
state that it has no affect on closed ranges or on our existing
cleanup activities.
Working with EPA we have developed further language
clarifying that it has no affect on our contractors as I have
indicated. In fact, these proposals largely codify existing
bipartisan policies that have served both readiness and the
environment very well.
In conclusion, Mr. Chairman, this issue, these proposals
carry strong emotion for both sides. We have heard in
compelling fashion today some of the concerns and arguments. I
can only conclude that there is no substitute for live fire,
realistic combat training. My experience as a young soldier in
Vietnam many, many years ago teaches me that it is one of my
strongest obligations as a Defense Department official to
provide that to the sons and daughters of our country who we
send into harm's way.
But we also recognize that protecting our environment is
important to all Americans. We believe that neither should be
sacrificed. Thank you, Mr. Chairman, for, as I said, this
timely opportunity to address these very important issues.
[The prepared statement of Raymond F. DuBois follows:]
Prepared Statement of Raymond F. DuBois, Deputy Under Secretary of
Defense for Installations and Environment and Benedict S. Cohen, Deputy
General Counsel (Environment and Installations) U.S. Department of
Defense
INTRODUCTION
Mr. Chairman and distinguished members of this Committee, we
appreciate the opportunity to discuss with you the very important issue
of sustaining our test, training and military readiness capabilities,
and the legislative proposals within the jurisdiction of this committee
that the Administration has put forward in support of that objective.
In these remarks we would like particularly to address some of the
comments and criticisms offered concerning these legislative proposals
Encroachment
Over the past several years, the Department has become increasingly
aware of the broad array of encroachment pressures at our operational
ranges and installations that are increasingly constraining our ability
to conduct testing and training, modernization, and force realignments.
These activities are essential to maintaining the technological
superiority, efficiency, and combat readiness of our military forces.
Given world events today, we know that our forces and our weaponry must
be more diverse and flexible than ever before. Unfortunately, this
comes at the same time that our ranges and installations are under
escalating pressure from myriad sources, such as encroaching
development and private litigation that seeks to interpret
environmental laws in ways unimagined by Congress.
This current predicament has come about as a cumulative result of a
slow but steady process involving many factors. Because external
pressures are increasing, the adverse impacts to readiness are growing.
Yet future testing, training, and force structure requirements will
only further exacerbate these issues as the speed and range of our
weaponry increase, the number of training scenarios expand in response
to real-world situations, and our forces are realigned to modernize and
increase efficiency. We must therefore address these issues in a much
more comprehensive and systematic fashion and understand that they will
not be resolved overnight, but will require a sustained effort.
Environmental Stewardship
Before we address our specific proposals, let us first emphasize
our position concerning environmental stewardship. There are
approximately 650 million acres of public land in the United States.
Congress has set aside about 30 million acres of this land--some 1.1%
of the total land area in the United States--for defense purposes.
These lands were entrusted to the Department of Defense (DoD) to use
efficiently and to care for properly. In executing these
responsibilities we are committed to more than just compliance with the
applicable laws and regulations. We are committed to protecting,
preserving, and, when required, restoring, and enhancing the quality of
the environment.
We are investing in pollution prevention technologies to minimize or
reduce pollution in the first place. Cleanup is far more costly
than prevention.
We are managing endangered and threatened species, and all of our
natural resources, through integrated natural resource
planning.
We are cleaning up contamination from past practices on our
installations and are building a whole new program to address
unexploded ordnance on our closed, transferring, and
transferred ranges.
Balance
The American people have entrusted these 30 million acres to our
care. Yet, in many cases, these lands that were once ``in the middle of
nowhere'' are now surrounded by homes, industrial parks, retail malls,
and interstate highways.
On a daily basis our installation and range managers are confronted
with myriad challenges--urban sprawl, noise, air quality, air space,
frequency spectrum, endangered species, marine mammals, and unexploded
ordnance. Incompatible development outside our fence-lines is changing
military flight paths for approaches and take-offs to patterns that are
not militarily realistic--results that lead to negative training and
potential harm to our pilots. With over 300 threatened and endangered
species on DoD lands, nearly every major military installation and
range has one or more endangered species, and for many species, these
DoD lands are often the last refuge. Finally, private litigants are
attempting to use environmental laws as tools to halt critical
readiness activities, such as live fire training.
Much too often these many encroachment challenges bring about
unintended consequences to our readiness mission. This issue of
encroachment is not going away. Nor is our responsibility to ``train as
we fight.''
2004 READINESS AND RANGE PRESERVATION INITIATIVE (RRPI)
Overview
In 2002, the Administration submitted to Congress an eight-
provision legislative package, the Readiness and Range Preservation
Initiative (RRPI). Congress enacted three of those provisions as part
of the National Defense Authorization Act for Fiscal Year 2003. Two of
the enacted provisions allow us to cooperate more effectively with
local and State governments, as well as private entities, to plan for
growth surrounding our training ranges by allowing us to work toward
preserving habitat for imperiled species and assuring development and
land uses that are compatible with our training and testing activities
on our installations.
Under the third provision, Congress provided the Department a
regulatory exemption under the Migratory Bird Treaty Act for the
incidental taking of migratory birds during military readiness
activities. This was essential to address the serious readiness
concerns raised by recent judicial expansion of prohibitions under the
Migratory Bird Treaty Act.
Last year, Congress enacted two additional provisions of our
Readiness and Range Preservation Initiative. The first of these
authorizes the Secretary of the Interior to certify the use of an
approved Integrated Natural Resource Management Plan as a substitute
for critical habitat designation on military lands. This provision
shields from private litigation a policy decision on the management of
endangered species that was first crafted in the previous
administration. It will allow the DoD to work in partnership with the
Department of the Interior to manage endangered species on military
lands in a more holistic manner than is accomplished by simple
designation of critical habitat. The second provision reformed obsolete
and unscientific elements of the Marine Mammal Protection Act by, for
example, amending the definition of ``harassment'' under that Act. It
also added a national security exemption to the statute, making it
consistent with most other environmental protection laws.
We are grateful to Congress for these provisions. We have already
begun to use these provisions both to enhance our ability to maintain
military readiness and to satisfy our environmental stewardship
obligations. In fact, the conservation authority Congress granted under
section 2811 of the National Defense Authorization Act for Fiscal Year
2003 has already been put to good use to forestall encroachment around
Camp Blanding in Florida. About 8,500 acres of Florida black bear
habitat will be added to Camp Blanding in southwestern Clay County. The
acquisition stems from an agreement between the Florida Department of
Environmental Protection and the Army National Guard to protect a 3-
mile buffer adjacent to Camp Blanding. The 8,500-acre buffer was
targeted for preservation through the Northeast Florida Timberlands
Florida Forever project, which spans more than 157,000 acres and
protects a belt of green space connecting the Ocala and Osceola
national forests. The project safeguards 60 rare species, including the
bald eagle, red-cockaded woodpecker, wood stork and Florida black bear.
Also in Florida, Governor Bush, DoD, and the Nature Conservancy
have established a partnership to craft a Northwest Florida Greenway
corridor--an effort that will benefit our soldiers, sailors, airmen,
and marines while at the same time preserving some of our country's
most unique natural areas. The Northwest Florida Greenway collaboration
represents the most ambitious use to date of the congressional
authority provided under section 2811. The project will preserve 100
miles of open space stretching from the Apalachicola National Forest
and waters of the Gulf of Mexico to Eglin Air Force Base. This greenway
will sustain military training and necessary access to Northwest
Florida's unique air, land, and water resources for generations to
come, while at the same time preserving Northwest Florida's rich and
diverse natural environment. Building on these successes, the
Department is working with additional States and non-governmental
organizations to develop similar partnerships in additional areas
throughout the country. In fact, to assist the Services in implementing
these authorities at the state and local level, the President's FY 2005
Budget request includes a new initiative of $20 million targeted to our
new authority--to help in developing new policies, partnerships, and
tools to assist communities and other interested stakeholders in
executing compatible land use partnerships around our test and training
ranges and installations. The new request is intended to build upon on-
going efforts--innovative win/win partnerships with our neighbors to
enhance conservation and compatible land use on a local and regional
basis.
The remaining three proposals address military readiness activities
on military lands. They remain essential to military readiness and
range sustainment and are as important this year as they were last
year--maybe more so. These three provisions would modestly extend the
allowable time for military readiness activities, like bed-down of new
weapons systems, to comply with Clean Air Act, and limit regulation of
munitions testing and training on operational ranges under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and Resource Conservation and Recovery Act (RCRA), if and only
if those munitions and their associated constituents do not have the
potential to migrate off of an operational range.
Before discussing the specific elements of our proposals, I would
like to address some overarching issues. A consistent theme in
criticisms of our RRPI proposal is that it would bestow a sweeping or
blanket exemption for the Defense Department from the Nation's
environmental laws. This assertion is wholly inaccurate.
First, our initiative would apply only to military readiness
activities, not to closed ranges or ranges that close in the future,
and not to ``the routine operation of installation operating support
functions, such as administrative offices, military exchanges,
commissaries, water treatment facilities, storage, schools, housing,
motor pools . . . nor the operation of industrial activities, or the
construction or demolition of such facilities.'' 1 It does
address only uniquely military activities--what DoD does that is unlike
any other governmental or private activity. DoD is, and will remain,
subject to precisely the same regulatory requirements as the private
sector when we perform the same types of activities as the private
sector. We seek alternative forms of regulation only for the things we
do that have no private-sector analogue: military readiness activities.
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\1\ See Pub. L. 107-314, 315, 116 Stat. 2509 (Dec. 2, 2002) for
the definition of ``military readiness activity.''
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Nor does our initiative ``exempt'' even our readiness activities
from the environmental laws. Rather, our RCRA and CERCLA proposals
clarify and confirm existing regulatory policies that recognize the
unique nature of our activities; the RCRA proposal codifies and extends
EPA's existing Military Munitions Rule, and the RCRA and CERCLA
elements ratify longstanding state and federal policy concerning
regulation under RCRA and CERCLA of our operational ranges. The Clean
Air Act provision does not exempt our readiness activities from Clean
Air Act requirements, but simply gives states and DoD temporary
flexibility under the Clean Air Act to allow important readiness
activities to proceed in conjunction with planning for State
Implementation Plan (SIP) compliance.
Ironically, the alternative proposed by many of our critics--
invocation of existing statutory emergency authority--would fully
exempt DoD from the waived statutory requirements for however long the
exemption lasted, a more far-reaching solution than the alternative
forms of regulation we propose.
Accordingly, our proposals are neither sweeping nor exemptive; to
the contrary, it is our critics who urge us to rely on wholesale,
repeated use of emergency exemptions for routine, ongoing readiness
activities that could easily be accommodated by minor clarifications
and changes to existing law.
Existing Emergency Authorities
As noted above, many of our critics state that existing exemptions
in the environmental laws and the consultative process in 10 U.S.C.
2014 render the Defense Department's initiative unnecessary. Although
existing exemptions are a valuable hedge against unexpected future
emergencies, they cannot provide the legal basis for the Nation's
everyday military readiness activities.
10 U.S.C. 2014, which allows a delay of at most five days in
regulatory actions significantly affecting military readiness, is a
valuable insurance policy for certain circumstances, but allows
insufficient time to resolve disputes of any complexity. More to the
point, Section 2014 merely codifies the inherent ability of cabinet
members to consult with each other and appeal to the President. Since
it does not address the underlying statutes giving rise to the dispute,
it does nothing for readiness in circumstances where the underlying
statute itself--not an agency's exercise of discretion--is the source
of the readiness problem. This is particularly relevant to our RRPI
proposal because none of the amendments we propose have been occasioned
by the actions of state or federal regulators. Our proposed RCRA and
CERCLA amendments were occasioned by private litigants seeking to
overturn federal regulatory policy and compel federal regulators to
impose crippling restrictions on our readiness activities. Our Clean
Air Act amendment was proposed because DoD and EPA concluded that the
Act's ``general conformity'' provision unnecessarily restricted the
flexibility of DoD, state, and federal regulators to accommodate
military readiness activities into applicable air pollution control
schemes. Section 2014, therefore, although useful in some
circumstances, would be of no use in addressing the critical readiness
issues that our RRPI initiatives address.
Most environmental statutes with emergency exemptions clearly
envisage that they will be used in rare circumstances, as a last
resort, and only for brief periods.
Under the Clean Air Act, RCRA and CERCLA, the decision to grant
an exemption is vested in the President. In the case of the Clean Air
Act and RCRA, an exemption is available only under the highest possible
standard: ``the paramount interest of the United States,'' a standard
understood to involve exceptionally grave threats to national
survival.2 Although a discrete activity (e.g., a particular
weapon system realignment or munitions testing activity) might only
rarely rise to the extraordinary level of a ``paramount national
interest,'' it is clearly intolerable to allow all activities that do
not individually rise to that level to be compromised or halted by
inflexible regulations or private litigation.
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\2\ Although the Department of Defense believes that a
determination of ``paramount interest'' is committed to the President's
discretion and is unreviewable, there is judicial language that
indicates that such a determination may be subject to judicial
challenge in a citizen suit. In Kasza v. Browner, the 9th Circuit, in
comparing the scope of the state secrets privilege to that of the
Presidential exemption under RCRA said ``if a facility has been
exempted [under RCRA], for example, a citizen's suit could question
whether the exemption was in the paramount interest of the United
States, to which the exemption itself would not apply . . .'' 133 F.3d
1159, 1168 (9th Cir. 1998). So even if an exemption were granted by the
President it is not clear that his decision would be immune from
challenge.
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The exemptions are limited to renewable periods of a year (or in
some cases under the Clean Air Act for as much as three years for
certain categories of property).
Under CERCLA, exemptions may be granted regarding ``any specified
site or facility'' and under RCRA, exemptions may be given to ``any
solid waste management facility.'' If RCRA and CERCLA are applied to
operational ranges, these provisions suggest that the President might
have to provide an individual exemption annually for each operational
range. Maintaining military readiness through use of emergency
exemptions would therefore involve issuing and renewing scores or even
hundreds of Presidential certifications annually.3
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\3\ Further, the authority of the President to issue an exemption
under RCRA has been interpreted to be limited in scope. RCRA provides
that ``[t]he President may exempt any solid waste management facility''
from requirements ``respecting the control and abatement of solid waste
or hazardous waste disposal and management . . .'' In the one case to
consider this issue, the court determined--after almost a year-long
process--that ``there is a distinction between `solid waste management
facility or disposal site' which the President can exempt, and an
`activity resulting, or which may result, in the disposal of solid
waste or hazardous waste,' which the President has no authority to
exempt.'' Puerto Rico v. Muskie, 507 F. Supp 1035, 1048 (1981), vacated
on other grounds, Marquez-Colon v. Reagan, 668 F.2d 611 (1st Cir.
1981). This holding, if followed by other courts, may allow the
President to exempt an operational range from RCRA's requirements
applicable to a waste treatment, storage or disposal facility, however,
the one-year exemptions might not be broad enough to protect the
military training activity itself from regulation. However, there would
first be a substantial question to be answered about whether an
operational range or a portion thereof should or could be considered a
``solid waste management facility'' before the exemption could be
considered for application.
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The Defense Department believes that it is unacceptable as a matter
of public policy for indispensable readiness activities to require
repeated invocation of emergency authority--particularly when narrow
clarifications of the underlying regulatory statutes would enable both
essential readiness activities and the protection of the environment to
continue.
Specific Proposals
RCRA and CERCLA
The legislation would codify and confirm the longstanding
regulatory policy of EPA and every state concerning regulation of
munitions use on operational ranges under RCRA and CERCLA. It would
confirm that military munitions are subject to EPA's 1997 Military
Munitions Rule while on range, and that cleanup of operational ranges
is not required so long as there is no potential for migration and the
range remains operational. If such material moves off range, it still
must be addressed promptly under existing environmental laws. Moreover,
if munitions constituents cause an imminent and substantial
endangerment on range, EPA will retain its current authority to address
it on range under CERCLA section 106. Our legislation explicitly
reaffirms EPA's section 106 authority. The legislation similarly does
not modify the overlapping protections of the Safe Drinking Water Act,
the National Environmental Policy Act, and the Endangered Species Act
against environmentally harmful activities at operational military
ranges. The legislation has no effect whatsoever on DoD's cleanup
obligations under RCRA or CERCLA at Formerly Used Defense Sites, closed
ranges, ranges that close in the future, or waste management practices
involving munitions even on operational ranges.
The main concern addressed by our RCRA and CERCLA proposal is to
protect against litigation the longstanding, uniform regulatory policy
that (1) use of munitions for testing and training on an operational
range is not a waste management activity or the trigger for cleanup
requirements, and (2) that the appropriate trigger for DoD to address
the environmental consequences of such routine test and training uses
involving discharge of munitions is (a) when the range closes, (b) when
munitions or their elements migrate or threaten to migrate off-range,
or (c) when munitions or their elements create an imminent and
substantial endangerment on or off the range. The legislation clarifies
and confirms the applicability of EPA's CERCLA section 106 authority to
on-range threats to health or the environment, and likewise clarifies
and confirms the applicability of both RCRA and CERCLA to migration of
munitions constituents off-range.
This legislation is needed because of RCRA's broad definition of
``solid waste,'' and because states possess broad authority to adopt
more stringent RCRA regulations than EPA (enforceable both by the
states and by environmental plaintiffs). EPA therefore has quite
limited ability to afford DoD regulatory relief under RCRA. Similarly,
the broad statutory definition of ``release'' under CERCLA may also
limit EPA's ability to afford DoD regulatory relief. And the
President's site-specific, annually renewable waiver (under a paramount
national interest standard in RCRA and a national security standard in
CERCLA) is inapt for the reasons discussed above.
Although its environmental impacts are negligible, the effect of
this proposal on readiness could be profound. Environmental plaintiffs
filed suit at Fort Richardson, Alaska, alleging violations of CERCLA
and an Alaska anti-pollution law they argued was applicable under
RCRA.4 If successful, plaintiffs could potentially force
remediation of the Eagle River Flats impact area and preclude live-fire
training at the only mortar and artillery impact area at Fort
Richardson, dramatically degrading readiness of the 172nd Infantry
Brigade, the largest infantry brigade in the Army. Most important is
that, successful, the Fort Richardson litigation could set a precedent
fundamentally affecting military training and testing at virtually
every test and training range in the U.S.
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\4\ In their original complaint, the Plaintiffs alleged that an
Alaska anti-pollution statute was made operative against the federal
government because of the broad waiver of federal sovereign immunity
found in RCRA. The RCRA waiver subjects Federal agencies to ``all''
state or local laws and regulations ``respecting the control and
abatement of solid waste or hazardous waste disposal and management.''
42 U.S.C. 6961(a). The RCRA count in the case was voluntarily dismissed
on August 28, 2003. However, counts alleging CERCLA and Clean Water Act
violations are pending a ruling on Plaintiff's motion for summary
judgment. Alaska Community Action on Toxics v. Army, Complaint for
Declaratory and Injunctive Relief, No. A02-0083CV (D. Alaska, 2002). In
addition to the claims regarding Fort Richardson, the United States has
been repeatedly sued regarding Navy operations at the range on the
island of Vieques, Puerto Rico. Plaintiffs claimed that use of ordnance
on an active range was an activity regulated by RCRA. While no suit has
to date shut down range operations, it seems unnecessary and unwise to
wait for or risk an adverse ruling when minor adjustments to RCRA and
CERCLA will clarify that it was not Congress' intent to subject the use
of munitions for their intended purpose on operational ranges to those
laws.
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Some critics of the RRPI have argued that such citizen suits are
not a sufficient justification to go forward with the RCRA and CERCLA
provisions. We believe, however, that the risks inherent in these
lawsuits provide ample justification for the RRPI proposals. This is
particularly true because the proposals merely clarify longstanding
regulatory practice and understanding of the Department, the
Environmental Protection Agency, and the States. Together, the
provisions simply confirm that military munitions are subject to EPA's
1997 Military Munitions Rule while on range, and that cleanup of
operational ranges is not required so long as the material stays on
range.
As to the magnitude of the risk presented by litigation, the
Department strongly believes it is ill-advised to wait until a critical
readiness resource is actually adversely impacted, and then, and only
then, seek relief through legislation. The Department has prior
experience with such an approach. In Center for Biological Diversity
(CBD) v. Pirie 5 CBD filed suit to prevent the use by the
United States military of live fire training exercises on the island of
Farallon de Medinilla (FDM) because, CBD alleged, such exercises harmed
migratory birds and the U.S. Navy did not have a permit. The plaintiffs
alleged this was a violation of the Migratory Bird Treaty Act
(MBTA).6 This was a novel theory, and prior to this suit,
neither the U.S. Fish and Wildlife Service nor the Department of
Defense believed that the MBTA required such permits for the limited
number of migratory birds that might be inadvertently harmed from the
use of munitions in testing and training. Nevertheless, on March 13,
2002, the Court granted summary judgment in favor of plaintiffs,
holding that the Navy's activities on FDM violated the MBTA, and on May
1, 2002, the court halted all military training exercises at FDM that
could potentially wound or kill migratory birds. Although in the FDM
case the order was stayed by the appellate court, allowing Congress to
respond legislatively before training was curtailed, it seems more
reasonable to clarify recognized ambiguities in the law before an
injunction is issued that requires a hurried legislative response.
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\5\ 201 F. Supp. 2d 113 (D. D.C. 2002).
\6\ 16 U.S.C. 703 et seq.
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Stakeholder Concerns.
The Department has actively reached out to stakeholders, listened
to their concerns regarding our proposals, and addressed those concerns
by modifying and clarifying our RCRA and CERCLA proposals. The result
has been an evolution in our proposals that we believe provides
essential protections for munitions related readiness activities on our
operational ranges and ensures protection of health and the
environment. Over the past three years, we have worked with EPA to make
it absolutely clear that nothing in our proposal alters EPA's existing
protective authority in section 106 of the Superfund law. In our
proposal, EPA retains the authority to take any action necessary to
prevent endangerment of public health or the environment in the event
such a risk arose as a result of use of munitions on an operational
range. Further, the proposed amendments were modified to clarify that
they do not affect our cleanup obligations on ranges that cease to be
operational. This was in response to the misapprehension by some that
the proposal could apply to closed ranges. To make this latter point
even clearer, after submitting last year's proposal to Congress, EPA
and DoD continued to refine the RCRA and CERCLA elements of the RRPI.
This collaboration produced a further revision designed to underscore
that our proposals have no effect whatsoever on our legal obligations
with respect to the cleanup of closed bases or ranges or on bases or
ranges that close in the future.
In the summer and fall of 2003, we presented the language we had
developed in cooperation with EPA to a broad range of stakeholders for
their consideration. In this regard, the Department consulted with
State environmental regulators and working in consultation, we
developed the language of the Department's current RCRA and CERCLA
proposals. We have used this language in discussions with individual
state representatives and at meetings of associations of state
officials, such as the Environmental Council of the States, the
National Governors' Association, the National Association of Attorneys
General, and the Conference of Western Attorneys General. We believe
this language is a very clear expression of the Department's very
narrow intent to protect only readiness activities on our operational
ranges, leaving intact state and federal authorities to protect health
and the environment. This language expressly provides that its
provisions do not apply to munitions that have been deposited on an
operational range that subsequently ceases to be operational.
Therefore, the provision provides no protection to munitions on closed,
transferred, or transferring ranges and Formerly Used Defense Sites
(FUDS). Further, it also eliminates the ``CERCLA preference'' which had
been included in previous versions. Earlier drafts of the RCRA
provision provided that munitions or constituents that migrate off
range are considered a waste, but only if they are not addressed under
CERCLA. In response to the criticism that this provision went beyond
DoD's intent to protect our readiness activities on ranges, the
Department deleted it from the current discussion draft.
The Department of Defense's goal is to manage and operate ranges to
support their long-term viability and utility to meet the National
defense mission while protecting human health and the environment. DoD
has implemented, and continues to refine, a comprehensive operational
range sustainment program. To make sure that this program is viable,
the Department has established a suite of policies and directives that
require installations to assess the environmental impacts of munitions
use on ranges, including the potential off-range migration of munitions
constituents, and begin any necessary remediation by 2008. The
overarching policy, DoD Directive 3200.15, Sustainment of Ranges and
Operating Areas, signed in January of 2003, requires the consideration
of all aspects of a range's lifecycle (development, use and closure)
when developing a new range. It requires multi-tiered (e.g., national,
regional and local) coordination and outreach programs that promote
sustainment of ranges, The directive ensures that inventories of
training ranges are completed, updated every five years, and maintained
in a Geographical Information System readily accessible by installation
and range decision-makers.
We have assembled, in response to section 366 of the FY 2003
National Defense Authorization Act, a comprehensive inventory of
operational ranges. The inventory will be refined and updated annually
in accordance with section 366. In addition, the FY 2004 Defense
Planning Guidance requires the military departments to ``assess
potential hazards from off-range migration of munitions constituents''
and to begin remediation by FY 2008. This reinforces the January 4,
2002, letter from the Deputy Under Secretary of Defense (Installations
and Environment) that directed the Military Departments to develop ``a
strategy to assess the environmental impacts of munitions use on
operational ranges.'' Further, DoD Directive 4715.11 ``Environmental
and Explosives Safety Management on Department of Defense Active and
Inactive Ranges Within the United States,'' August 19, 1999, states
that it is DoD policy to ``minimize both potential explosives hazards
and harmful environmental impacts'' and requires the Military
Departments and other DoD components to ``respond to a release of
munitions constituents to off-range areas, when such a release poses an
imminent and substantial threat to human health and the environment.''
The Department has not only developed the necessary policies to
assess and respond to environmental issues on operational ranges, but
the Military Departments are actively executing the policy guidance to
ensure our ranges are assessed and remediation, where necessary, is
initiated. In FY 2003, the Navy began active Range Condition
Assessments (RCAs) at its SOCAL (California), Fallon (Nevada), and
VACAPES (Naval Air Station (NAS) Oceana and Dam Neck in Virginia, and
Dare County in North Carolina) ranges. It will start RCAs in FY 2004
for NAS Jacksonville (Florida) and its Whidbey Complex (Washington,
Oregon, California). The Air Force is conducting investigation and
sampling, initially focusing on test and training ranges, where the
majority of military munitions uses occur. It will spend $1 million in
FY 2004 to sample at Warren Grove range, New Jersey; Eglin Air Force
Base range, Florida; Poinsette range, South Carolina; and Goldwater
range, Arizona. It also has an additional $1 million programmed for
follow-on assessments in FY 2004. The Army has completed Regional Range
Studies at Camp Shelby, Mississippi, and Jefferson Proving Ground,
Indiana. It has completed fieldwork at Fort Bliss, Texas, and Fort
Polk, Louisiana, and will complete fieldwork at Aberdeen Proving
Ground, Maryland, by Spring of 2004. In Fall of 2004 through early
2005, the Army will begin assessments at Ft Sill, Oklahoma; Fort Drum,
New York; and Fort Riley, Kansas. Finally, the Army has conducted range
characterization activities regarding the potential for contamination
from munitions residues at 17 ranges throughout the United States,
assessing the different types of ranges used by the Army. These
assessment activities, covering a broad cross-section of ranges, will
give DoD the data it needs to focus on locations where remedial efforts
may be necessary.
Lastly, DoD is actively engaged in a comprehensive research,
development, test, and evaluation program through the Strategic
Environmental Research and Development Program (SERDP) and
Environmental Security Technology Certification Program (ESTCP) to
address constituents that may contaminate groundwater. The development
of remediation technologies within SERDP/ESTCP began many years ago but
was focused on TNT contamination at ammunition plants. This work has
been expanded in scope to include other constituents and range-specific
conditions. The bulk of the work has been focused on remediating
groundwater aquifers, but new work concerning the wellhead treatment of
perchlorate in drinking water is planned for FY 2005.
The Department now has two essential matching elements in place--
policy and budgeting guidance. Both elements have the same
requirements--inventories, management plans, assessment/mitigations
(where appropriate) of off-range migrations of munitions constituents,
and outreach to stakeholders to promote transparency in our range
management efforts.
Contractor and Off-Range Liability.
As we have mentioned, the Military Munitions Rule adopted by EPA
under the prior Administration already provides that munitions used for
training military personnel or explosives and munitions emergency
response specialists, or for research, development, test, and
evaluation (RDT&E) of military munitions, are not solid waste for
purposes of RCRA. However, in the existing Military Munitions Rule,
these exclusions are not limited to munitions training or RDT&E
activities that occur on operational ranges; in fact, they apply to
such activities anywhere they occur, on or off such ranges.7
Nevertheless, our Readiness and Range Preservation Initiative is not
intended to codify all the circumstances in which munitions use is
properly excluded from RCRA regulation. Rather, it is intended to
address one emerging threat to our operational ranges. Accordingly, the
current administration provision makes it clear that only DoD's
readiness activities on DoD operational ranges are covered by the
proposals. The activities of DoD contractors, taking place at non-
operational ranges, while they may be covered by the Military Munitions
Rule, will not be covered by the RRPI's RCRA or CERCLA provisions.
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\7\ Sec. 266.202 of the Military Munitions Rule provides as
follows:
(a) A military munition is not a solid waste when:
(1) Used for its intended purpose, including:
(i) Use in training military personnel or explosives and munitions
emergency response specialists (including training in proper
destruction of unused propellant or other munitions); or
(ii) Use in research, development, testing, and evaluation of
military munitions, weapons, or weapon systems; or
(iii) Recovery, collection, and on-range destruction of unexploded
ordnance and munitions fragments during range clearance activities at
active or inactive ranges. However, ``use for intended purpose'' does
not include the on-range disposal or burial of unexploded ordnance and
contaminants when the burial is not a result of product use.
(2) An unused munition, or component thereof, is being repaired,
reused, recycled, reclaimed, disassembled, reconfigured, or otherwise
subjected to materials recovery activities, unless such activities
involve use constituting disposal as defined in 40 CFR 261.2(c)(1), or
burning for energy recovery as defined in 40 CFR 261.2(c)(2).
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First, this year's provisions exclude from the definition of
``solid waste'' only military munitions that are used and remain on an
operational range, thereby clarifying that these provisions, unlike
their analogues in the Military Munitions Rule, do not apply to such
activities outside operational ranges. Second, as part of the National
Defense Authorization Act for FY 2004, Congress enacted a definition of
``operational range.'' 8 This definition, explicitly states
that operational ranges must be under the jurisdiction, custody, or
control of the Department. This requirement applies whether the
operational range is active or inactive. This definition addresses any
possible concern that the Department's RCRA/CERCLA RRPI provision might
be read to apply to ranges controlled by our contractors. Third, the
RCRA and CERCLA provisions of the RRPI apply not to all activities on
operational ranges, but only to the use of ``military munitions.'' In
order to clarify that this is not a ``wholesale exemption for
explosives and munitions'' from the hazardous waste requirements of
RCRA, as has been suggested by some critics of earlier versions of the
proposal,9 we also proposed a definition of ``military
munitions,'' which was enacted in the FY 2004 Defense Authorization
Act. This definition provides that military munitions include only
``ammunition products produced for or used by the armed forces for
national defense and security . . .'' 10 Therefore, before
the protections of our RRPI provisions are triggered by DoD activities
on a range, the range must first be an operational range, which would
not include contractor controlled facilities, and the activity must
involve military munitions, which would exclude wastes or byproducts of
any contractor activity that does not involve a munition or explosive
that is being produced specifically for the armed forces.
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\8\ Subsection 1042(a) of the National Defense Authorization Act
for Fiscal Year 2004, Pub. L. 108-136 (Nov. 24, 2003), added several
general definitions to section 101(e) of title 10, United States Code.
``Operational range'' is defined as ``a range that is under the
jurisdiction, custody, or control of the Secretary of Defense and (A)
that is used for range activities, or (B) although not currently being
used for range activities, that is still considered by the Secretary to
be a range and has not been put to a new use that is incompatible with
range activities.
\9\ Impact of Military Training on the Environment: Hearing Before
the Committee on Environment and Public Works, 108th Cong. (Apr. 2,
2003) (written testimony of Mr. Daniel S. Miller, First Assistant
Attorney General, Colorado Department of Law).
\10\ Pub. L. 108-136, 1042(a) (2003).
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Perchlorate and RRPI.
We would also like to take the opportunity to address some other
concerns about these provisions that in DoD's view do not accurately
characterize the effects of the legislation. First, some observers have
expressed concern that our RRPI legislation could intentionally or
unintentionally affect our financial liability or cleanup
responsibilities with respect to perchlorate. Nothing in either RRPI or
our defense authorization as a whole would affect our financial,
cleanup, or operational obligations with respect to perchlorate.
As discussed above, nothing in our legislative program alters the
financial, cleanup, or operational responsibilities of our
contractors, or of DoD with respect to our contractors, either
regarding perchlorate or any other chemical.
Nothing in our legislative program alters our financial, cleanup, or
operational responsibilities with respect to our closed ranges,
Formerly Used Defense Sites, or ranges that may close in the
future, either regarding perchlorate or any other chemical.
Nothing in our legislative program affects the Safe Drinking Water
Act, which provides that EPA ``upon receipt of information that
a contaminant which is present or is likely to enter a public
water system or an underground source of drinking water may
present an imminent and substantial endangerment to the health
of persons . . . may take such actions as [EPA] may deem
necessary to protect the health of such persons,'' enforceable
by civil penalties of up to $15,000 a day. Because this Safe
Drinking Water Act authority is not limited to CERCLA
``releases'' or off-range migration, it clearly empowers EPA to
issue orders to address endangerment either on-range or off-
range, and to address possible contamination before it migrates
off-range. EPA used this Safe Drinking Water order authority to
impose a cease-fire on the Massachusetts Military Reservation
to address groundwater contamination from perchlorate, and
nothing in our proposal would alter the events that have played
out there
DoD is also committed to being proactive in addressing perchlorate.
On November 13, 2002 DoD issued a perchlorate assessment policy
authorizing assessment ``if there is a reasonable basis to
suspect both a potential presence of perchlorate and a pathway
on [ ] installation[s] where it could threaten public health.''
That policy was superseded on September 29, 2003. The new
``Interim Policy on Perchlorate Sampling'' charges DoD
components to continue their efforts to consolidate existing
perchlorate occurrence data at active or closed installations,
non-operational ranges, and FUDs, and to program resources to
sample for perchlorate at previously unexamined sites where
there is a reasonable likelihood that perchlorate may have been
released by DoD activities and a complete pathway for human
exposure. Further, for operational ranges, the policy
``requires the Military Departments to include perchlorate in
future range assessments,'' and to assess for the potential for
off-range migration.
Delayed Response to Spreading Contamination.
Some commentators have expressed concern that our RRPI proposal
would create a legal regime that barred regulators from addressing
contamination until it reached the fence lines of our ranges, or that
it at least reflects a DoD policy to defer any action until that point.
As the above discussion makes clear, EPA's continuing authority under
the Safe Drinking Water Act to prevent likely contamination clearly
empowers the Agency to act before contamination leaves DoD ranges. In
addition, nothing in our legislative program affects EPA's authority
under Section 106 of CERCLA to ``issu[e] such orders as may be
necessary to protect public health and welfare and the environment''
whenever it ``determines that there may be an imminent and substantial
endangerment to the public health or welfare or the environment because
of an actual or threatened release of a hazardous substance from a
facility.'' Such orders are judicially enforceable. Because EPA's
sweeping section 106 authority covers not only actual but ``threatened
release,'' our proposal would therefore clearly enable EPA to address
groundwater contamination before the contamination leaves DoD land--
which is also the objective of DoD's existing management policies.
Section 106 would also clearly cover on-range threats. Finally, States
and citizens exercising RCRA authority under our RRPI RCRA provision
addressing off-range migration could potentially use that authority to
enforce on-range measures necessary to redress the migration where
appropriate. Under RRPI, our range fence lines would not become walls
excluding regulatory action either before or after off-range migration
occurred.
Finally, it is most definitely not DoD policy to defer action on
groundwater contamination until it reaches the fence lines of our
operational ranges, when it will be far more difficult and expensive to
address. In this regard, we believe it is extremely important to
emphasize that DoD has developed its range sustainment policies based
on the assumption that new ranges are not likely to be acquired and
that we must, therefore, actively sustain the operational range
resources we have. As such, DoD is aggressively executing the suite of
policies mentioned earlier to assess and address potential
contamination from military munitions use on operational ranges. DoD is
taking affirmative steps to ensure that contamination does not present
a risk to groundwater resources and to initiate response actions before
contamination migrates from the range.
Active vs. Inactive Ranges.
Some commentators have criticized the application of our RCRA and
CERCLA provisions to both the active and the inactive categories of
operational ranges, suggesting that it will motivate DoD to retain
ranges that are never used and should be closed as nominally
``inactive'' ranges to defer cleanup costs. This policy question was
first addressed in EPA's 1997 Military Munitions Rule (40 CFR
266.201), which established a three-part test designed to prevent such
manipulation: ``inactive ranges'' must be ``still under military
control and considered by the military to be potential range area, and
. . . [must] not [have] been put to a new use that is incompatible with
range activities.'' This test was enacted into statutory law by
subsection 1042(e) of the National Defense Authorization Act for Fiscal
Year 2004. 11
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\11\ Pub. L. 108-136 ( 2003), supra note 14.
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We believe the statutory definition provides appropriate guidance
and limitations to DoD in characterizing ranges as ``inactive'' but
still ``operational.'' Our range sustainment policy initiative is based
on the recognition that DoD will not easily acquire new range lands in
the future, even though modern precision munitions and weapons systems,
with their longer ranges, require more training areas. Existing range
lands must, therefore, be appropriately but not excessively husbanded
for future needs. DoD believes that the policy embodied in the Military
Munitions Rule and the new statutory definition strikes the correct
balance.
Further, in response to the requirements of Section 366 of the FY
2003 National Defense Authorization Act, DoD has developed an inventory
of operational ranges. This inventory has been transmitted to Congress.
The inventory will be refined and updated annually in accordance with
section 366 for fiscal years 2005 through 2008. In addition, Department
of Defense Directive 3200.15, ``Sustainment of Ranges and Operating
Areas (OPAREAs),'' 10 January 2003, requires the Department to
``identify current and future operational air, ground, sea and/or
undersea, space, and frequency spectrum range and OPAREA requirements
necessary to meet test and training needs'' and ensure that range
inventories are updated every five years. This review will ensure that
even after the Department's obligation for reporting on operational
ranges under section 366 expires, the Department will continue to
verify the necessity of retaining operational range areas.
DoD is also taking action to inventory ranges that are no longer
operational. In response to requirements in Section 311 of the Fiscal
Year 2002 National Defense Authorization Act, DoD has assembled and
made publicly available an inventory of former ranges and other areas
which may require a munitions response (i.e., cleanup). This inventory
was contained in the Department's Environmental Restoration Program
Annual Report to Congress. We are now working with EPA, other Federal
Land Managers, the States, and affected Indian tribes and Alaska native
entities to ensure this list is as comprehensive as possible. This list
includes Formerly Used Defense Sites, BRAC installations, and former
operational ranges on active installations. The inventory will be
updated annually and submitted with the Annual Report to Congress.
Together, the Section 311 and Section 366 inventories of former and
operational ranges will account for all areas for which concerns have
been expressed.
Clean Air Act General Conformity Amendment
Our Clean Air Act amendment is unchanged from last year. The
legislation would provide more flexibility for the Defense Department
to ensure that emissions from its military training and testing are
consistent with State Implementation Plans under the Clean Air Act by
allowing DoD and the states a slightly longer period to accommodate or
offset emissions from military readiness activities.
The Clean Air Act's ``general conformity'' requirement, applicable
only to federal agencies, has repeatedly threatened deployment of new
weapons systems and base closure/realignment despite the fact that
relatively minor levels of emissions were involved.
The planned realignment of F-14s from NAS Miramar to NAS Lemoore in
California would only have been possible because of the
fortuity that neighboring Castle Air Force Base in the same
airshed had closed, thereby creating offsets.
The same fortuity enabled the homebasing of new F/A-18 E/Fs at NAS
Lemoore.
The realignment of F/A-18 C/Ds from Cecil Field, Florida, to NAS
Oceana in Virginia was made possible only by the fortuity that
Virginia was in the midst of revising its Implementation Plan
and was able to accommodate the new emissions. The Hampton
Roads area in which Oceana is located will likely impose more
stringent limits on ozone in the future, thus reducing the
state's flexibility.
As these near-misses demonstrate, under the existing requirement
there is limited flexibility to accommodate readiness needs, and DoD is
barred from even beginning to take readiness actions until the
requirement is satisfied.
Our proposal does not exempt DoD from conforming to applicable
requirements; it merely allows DoD more time--a three-year period--to
find offsetting reductions. And this period does not apply to ``any
activities,'' but rather to the narrow category of military readiness
activities, which characteristically generate relatively small amounts
of emissions--typically less than 0.5% of total emissions in air
regions.
The Clean Air Act permits the President to issue renewable one-year
waivers for individual federal sources upon a paramount national
interest finding, or to issue renewable three-year regulations waiving
the Act's requirements for weaponry, aircraft, vehicles, or other
uniquely military equipment upon a paramount national interest finding.
Use of such time-limited authorities in the context of activities that
are (a) ongoing indefinitely, and (b) largely cumulative in effect
would be difficult under a paramount interest standard, and would
require needless revisiting of the issue annually or triennially.
This provision is vitally needed to protect readiness. The more
efficient and powerful engines that are being designed and built for
virtually all new weapons systems will burn hotter and therefore emit
more NOx than the legacy systems they are replacing, even though they
will also typically emit lower levels of VOCs and CO.
Conclusion
In closing Mr. Chairman, let us emphasize that modern warfare is a
``come as you are'' affair. There is no time to get ready. We must be
prepared to defend our country wherever and whenever necessary. While
we want to train as we fight, in reality our soldiers, sailors, airmen
and Marines fight as they train. The consequences for them, and
therefore for all of us, could not be more momentous.
DoD is committed to sustaining U.S. test and training capabilities
in a manner that fully satisfies that military readiness mission while
also continuing to provide exemplary stewardship of the lands and
natural resources in our trust.
Mr. Chairman, we sincerely appreciate your support on these
important readiness issues. We look forward to working with you and
this Committee on our Readiness and Range Preservation legislation.
Thank you.
Mr. Hall. Mr. DuBois, we thank you and thank you for your
service to this country. It is my understanding this is your
second tour of duty under Secretary Rumsfeld. We thank you for
this presentation and for the time you have spent and for the
time you will spend.
At this time the Chair would recognize Ben Cohen who is
Chief Deputy General Counsel for DOD. He was for a long time
the Chief of Staff for Congressman Cox on the Policy Committee
and no stranger to this committee and to this Congress. We
thank you for your presence here.
Also, I will recognize Colonel Hoeftert who is also here in
a position of support. He is the Director of Army Environmental
Programs, the Department of the Army. At this time for
testimony I recognize General Louis Weber who is Director of
Training and we recognize you at this time for 5 minutes and we
won't be pressing about holding you to 5 minutes. Thank you.
STATEMENT OF LOUIS W. WEBER
Mr. Weber. Thank you, Mr. Chairman, Chairman Hall and
Chairman Gillmor, members of the subcommittee. Thank you for
the opportunity to speak to you today about training and
readiness for the Army and some of the important training
challenges that we face.
The Army, as we all know, is heavily engaged today on a
global basis in the war on terrorism and also the deterrent
force elsewhere. We are currently transforming toward a more
joint and expeditionary force. In the future we will be better
able to respond more quickly to the defense needs of the
Nation.
Active, Army Reserve and National Guard soldiers are
deployed around the world as you all well know. We have a
continued commitment to peacekeeping operations in the Balkans
and Haiti. We have a continued deterrent presence in South
Korea. Solders in all these locations and others throughout the
world face real threats on a daily basis.
Other units and soldiers are ``resetting.'' After reploying
from current operations they are beginning transforming new
organizations and preparing for future combat operations
potentially. Their readiness is dependent on training.
The exceptional challenges currently faced by our soldiers
in Iraq clearly indicate the uncompromising nature of combat
and the absolute need to provide the best possible training for
our solders. The best way to achieve the required level of
individual and collective competency is through repetitive,
challenging, and as realistic training as we can provide. We
conduct live-fire training focused on weapons firing under
realistic combat conditions to the greatest extent possible.
Conditions in Iraq have led us to change many live-fire
tasks and events, and to increase the amount of live-fire
training not only for our combat arms soldiers, but more
importantly for our soldiers in our combat support and combat
service support units.
Maneuver training involves practicing combat skills as a
team. Because of the ever increasing effective range of our
weapons, we must practice maneuver over large land areas where
we employ battalions as well as brigade training techniques.
Other key maneuver skills essential today include conducting
operations in an urban situation requiring very specialized
training techniques and facilities.
To support our live-fire and maneuver training
requirements, we manage an extensive range infrastructure that
allows firing the full array of our weapons systems impact
areas into which these firing ranges are oriented, maneuver
space, and specialized training ranges such as an extensive
array of military operations on urban terrain or MOUT
facilities, as we call them, that in the aggregated laws to
train in various conditions to enhance our unit readiness.
The Army's transformation that we are currently undergoing
involves the creation of even more combat units, higher levels
of tactical skills for all soldiers, and the appointment of
joint and Army weapon systems that will generate a larger
operational training footprint.
There is a great demand on our existing ranges and training
land. The Department of Defense in fiscal year 2005 Readiness
and Range Preservation Initiative (RRPI) directly addresses the
Army's training requirements.
The RCRA and the CERCLA proposals will continue to ensure
that all of our soldiers will be able to continue to carry out
required live-fire training and using weapons in ways needed to
maintain the training of the Army, as well as properly prepared
units for deployment.
These proposals clarify that certain provisions of these
laws cannot be used to shut down live-fire training on
operational ranges. Without these provisions, the Army
continues to be vulnerable to misapplication of certain
environmental laws and citizen suits that could potentially
disrupt or shut down our training. These prospects threaten
training and, therefore, the readiness of our men and women in
uniform.
The Clean Air Act provision will allow us to train units
without restricting live fire or maneuver training. This
provision allows us, as well as the States, a slightly longer
time to offset emissions for military readiness activities. We
believe without these provisions training of Army units could
be diminished.
We are committed to providing the best training for our
soldiers, and to intensively managing our ranges and training
land through the Sustainable Range Program that I direct in
cooperation with the Army Assistant Chief of Staff for
Installation Management. This range management program ensures
that our ranges are capable of supporting our training mission,
that they are sustainable for the long-term, and are
environmentally safe.
My investment in training land management is over $50
million per year in a program called Integrated Training Area
Management (ITAM). ITAM involves the effective integration of
stewardship principles for training with conservation
management practices to ensure that the Army's training lands
remain viable to support future training mission requirements.
This is in addition to the Army's overall environmental
stewardship investment of $1.5 billion annually that covers
Pollution Prevention, Restoration, Conservation, Compliance,
and Technology.
The Army invests both energy and effort in the
environmental management and sustainability of its training
land assets. We are committed to environmental leadership and
stewardship and our soldiers, as citizens, are concerned about
their environment, our personal concerns but also for our
families.
In closing, I would ask you to consider a few basic facts:
We have just over 1 million soldiers in uniform in the Active
Army, Army Reserve and Army National Guard who are committed to
protecting and defending the national interests of the United
States. We must train those soldiers to protect and defend our
Nation and to prepared them for the uncompromising conditions
of combat. Today, unfortunately, combat is a certainty for most
of them.
We constantly strive to balance our training requirements
against protecting our environment in order to generate and
train the finest Army in the world. Thank you, Mr. Chairman,
for the opportunity to be here and your support, as well as the
committee's support to America's Army. I look forward to
answering your questions.
[The prepared statement of Louis W. Weber follows:]
Prepared Statement of Brigadier General Louis W. Weber, Director of
Army Training (G3)
Chairman Gillmor, Chairman Hall, Congressman Pallone, Congressman
Boucher, and distinguished members of the Committees, thank you for
this opportunity to testify before you on this important issue.
Military Training
The Army is heavily engaged on a global basis in the war on
terrorism as a deterrent to war. We are also transforming toward a more
joint and expeditionary force that will be better able to respond to
the defense needs of the Nation. Active, Army Reserve and Army National
Guard soldiers are deployed around the world. We have a continued
commitment to peacekeeping in the Balkans and Haiti. We have a
continued deterrent presence in South Korea. Soldiers in all these
locations face real threats on a daily basis. Other units and soldiers
are ``resetting'' from current operations, are transforming, and are
preparing for future operations. All of this is dependent on training.
The exceptional challenges currently faced by our Soldiers in Iraq
clearly indicate the uncompromising nature of combat and the absolute
need to provide the best possible training for our soldiers.
The best way to achieve the required level of individual and
collective competency is through repetitive, challenging, and as
realistic training as we can provide. We conduct live-fire training
focused on weapons firing under realistic combat conditions. Conditions
in Iraq are requiring us to change many live fire tasks and events, and
to increase the amount of live fire training for not only our combat
arms soldiers, but also for soldiers in our combat support and combat
service support units. Maneuver training involves practicing combat
skills as a team. Because of the effective range of our weapons
systems, we must practice maneuver over large land areas where we
employ battalion as well as brigade force-on-force training techniques.
Another key maneuver skill essential today is conducting operations in
an urban situation requiring very specialized training techniques and
facilities.
To support our live-fire and maneuver training requirements, we
manage an extensive range infrastructure consisting of approximately
10,000 operational ranges on over 500 installations and sites. These
cover some 16 million acres of land in all the states and territories.
These training areas provide fixed-firing ranges for the full array of
weapons systems, impact areas onto which firing ranges are oriented,
maneuver space, and specialized training ranges, such as our extensive
array of Military Operations on Urban Terrain, or MOUT, training
facilities.
The Army's Transformation involves increasingly greater numbers of
combat units, higher levels of tactical skills for all Soldiers, and
new weapon systems that will generate a larger operational and training
footprint than currently available. Driven largely by increased
mobility and the range of new weapon systems, Transformation will place
greater demand on our existing ranges and training land. Coupled with a
requirement for proficiency across a broader range of the spectrum of
military capabilities, the demand for ranges and training land is
straining our available assets and training capacities. DoD, the
Administration, and Congress must improve the processes by which we
integrate the realistic training needs required to maintain readiness
and the preservation of the land and resources America entrusts to us.
We are committed to providing the best training for our Soldiers,
and to intensively managing our ranges and training land through the
Sustainable Range Program that I direct in cooperation with the Army
Assistant Chief of Staff for Installation Management. This range
management program ensures that our ranges are capable of supporting
our training mission, that they are sustainable for the long-term, and
that they pose no danger to our fellow citizens.
My investment in training land management is over $50M per year in
a program called Integrated Training Area Management (ITAM). ITAM
involves the effective integration of stewardship principles with
conservation management practices applicable to lands used for
training.
This is in addition to the Army's overall environmental stewardship
investment of $1.5 Billion annually that covers Pollution Prevention,
Restoration, Conservation, Compliance, and Technology.
As an example, this year the Army invested $16.4 Million in
mitigation efforts to recover the desert tortoise at the National
Training Center at Fort Irwin California. The Army's total investment
in desert tortoise recovery will be approximately $70 Million, with a
per capita investment of between $36,000 and $80,000 per tortoise.
The Army invests both energy and effort in the environmental
management and sustainability of its training land assets. The Army is
committed to environmental stewardship and our Soldiers, as citizens,
are concerned about their environment. We recognize the importance of
stewardship responsibilities in sustaining the lands and resources
entrusted to us.
Legislative Proposals
The Administration's Readiness and Range Preservation Initiative
(RRPI) proposals affecting the Resource Conservation and Recovery Act
(RCRA) and the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) are requests to Congress for common sense
clarifications to ensure that these laws are applied as intended and
that we preserve military training vital to national defense and the
flexibility to swiftly adapt to our changing doctrinal training
requirements. A proposed amendment to the Clean Air Act (CAA) would
provide the Army with the flexibility needed to base and operate
military weapons systems and structure forces, while ensuring that
compliance, and not an exemption from compliance, is achieved.
RCRA and CERCLA
The RCRA and CERCLA proposals clarify that certain provisions of
these laws cannot be used to shut down training on operational ranges.
These proposals reflect existing policies of the Environmental
Protection Agency and state environmental regulatory agencies with
regard to our operational range activities and remove ambiguity
currently in the law. These clarifications will help protect the armed
forces from the present threat of lawsuits that seek to extend and, in
our view, misapply the requirements of these laws to military live-fire
training, with adverse impacts on national defense.
Simply put, the RRPI proposals seek to confirm that the normal and
expected use or presence of military munitions on operational ranges
does not, alone, create RCRA statutory ``solid waste'' or a CERCLA
``release.'' These provisions will not apply to private or contractor
sites, because, by the proposals terms, they apply only to areas under
the jurisdiction, custody and control of the Department of Defense.
Further, the provisions ensure we cannot avoid our legal duties and
responsibilities by simply labeling an area as an ``operational
range.'' Our operational ranges, and thus our legal responsibilities,
are defined by the activities conducted on those ranges. In order for
an area to qualify as an operational range, it must be used for range
activities (research, development, testing, and evaluation of military
munitions, other ordnance, and weapons systems; or the training of
military personnel in the use and handling of military munitions, other
ordnance, and weapons systems). If the range is not currently being
used for such activities, it may still be considered an ``operational
range'' but only if it has not been converted to a use incompatible
with range activities. By definition, therefore, lands that were once
used as ranges, even if they are still under the control of the
military, are no longer operational ranges if put to an incompatible
use and consequently would not enjoy any protection under the RRPI's
provisions. Any former ranges that have passed into private ownership
would not be covered by the RRPI's provisions. Once a range ceases to
be an ``operational range,'' it would lose the protections of the RRPI.
Under our proposal, our responsibility to address munitions that
land off our operational ranges is unchanged from current law.
Additionally, state and federal regulatory agencies retain authority to
address an imminent and substantial endangerment to the public health
or welfare or the environment, whether the threat is on or off an
operational range. Neither of DoD's proposals affect DoD's
responsibilities on former ranges or other defense sites. These
provisions do not seek to avoid the military's responsibilities to
cleanup formerly used defense sites or to protect the environment from
potentially harmful impacts. Rather, they seek to clarify and affirm
existing policies and ensure that operational ranges, set aside to
allow live-fire training, remain available to the forces that need to
train for combat.
Under the current statutory language, those seeking to halt
military training can--and have--argued that CERCLA and RCRA require
the cessation of live-fire on operational ranges pending investigation
and potential cleanup of munitions and munitions-constituents.
Obviously, if they were successful, this would make it nearly
impossible for the Army to fulfill our national defense mission.
Some have characterized the administration's request to clarify the
intent of Congress with regard to the application of certain
environmental laws to military training operations as a ``roll back''
of environmental laws. Such characterizations are entirely unfounded.
We comply with, and we will continue to comply with, all applicable
environmental laws and regulations to the extent required by law. The
RCRA and CERCLA proposals we support today are narrowly tailored to
address specific concerns--they are not wholesale exemptions. Indeed,
they clarify and confirm regulatory practices and policies that have
been in place for years, but are now being challenged in the courts.
Historically, environmental regulatory agencies have recognized that
RCRA and CERCLA were not intended to apply to live-fire training and
testing activities on operational ranges. In fact, these operational
ranges were set aside precisely for these types of activities,
activities that are essential to national defense. The RRPI provisions
seek to enact this regulatory practice and prevent expanded application
of these laws beyond Congress' original intent. We seek a clarification
of Congressional intent that will provide certainty to regulators and
the courts. Such clarification will allow the military to maintain
required levels of training and readiness proficiencies while properly
managing the resources entrusted to us by our Nation.
While it is possible under some of the environmental statutes to
seek national security exemptions--most often at the Presidential
level--such exemptions are narrowly tailored to a specific site,
regarding a specific issue, and for a limited time (e.g., RCRA provides
for a 1 year Presidential exemption, renewable thereafter). The
readiness activities we are concerned with are not ``one-time'' events.
They are part of the day-to-day training regimens of our servicemen and
women, and it is simply unrealistic to expect the military to
repeatedly request exemptions for training that must occur on a regular
basis --a practice that would be inefficient and ineffective over time.
Use of these exemptions is, in fact, the opposite of what we seek. We
believe our use of operational ranges is consistent with current law
and therefore needs no exemption. We seek only clarification of current
law and policy to ensure they are not extended in an unwarranted
fashion in the courts. The use of existing statutory exemptions for
range activities would imply we are unable or unwilling to comply with
the law, which is most certainly not the case.
In our view, a clarification of the statutory framework applicable
to military testing and training operations is the appropriate manner
in which to address this issue. Although, as we've noted, existing
regulatory policies are consistent with our RCRA and CERCLA proposal,
the Department of Defense, as well as the regulatory agencies
themselves, are vulnerable to citizen suits seeking to impose an
inflexible interpretation of these and other environmental laws to
military munitions and munitions constituents on operational ranges.
The Army at Fort Richardson, AK, is currently engaged in such a
lawsuit in which the private party plaintiffs alleged violations of
CERCLA and RCRA associated with firing munitions at Eagle River Flats
(ERF) range. The court challenge implies that CERCLA should be applied
to the act of firing munitions onto an operational range and that the
continued presence of those munitions on the range constitutes a
release of hazardous substances requiring reporting, investigation,
characterization, and remediation. If the court agrees with the
plaintiff, then live-fire training and testing operations at ERF, and
potentially every other operational range (more than 500 sites), could
be subject to CERCLA response requirements. Live-fire training during
the remediation would likely be impossible, and the only mortar and
artillery impact area at Fort Richardson would be unavailable for
training.
The RCRA allegation in the Fort Richardson case was that munitions
fired into ERF--an operational range--were subject to state pollution
abatement requirements. In their original complaint, the plaintiffs
alleged that an Alaska anti-pollution statute was made operative
against the federal government because of the broad waiver of federal
sovereign immunity found in RCRA. In the Fort Richardson case, the RCRA
count has since been voluntarily dismissed; however, the United States
has also been sued under RCRA regarding the range on the island of
Vieques, Puerto Rico, where, in an effort to shut range operations
down, plaintiffs claimed that use of ordnance on an active range was an
activity regulated by RCRA. If munitions used for their intended
purpose are considered statutory solid waste under RCRA, the Armed
Forces could be forced to cease firing activities on operational ranges
and seek operating permits and perform corrective action or remediation
of ranges while they are still operational.
While no suit has to date shut down range operations, we believe it
is unwise to risk an adverse ruling that could have tremendously
significant adverse consequences to an activity that is critical to
military readiness. An adverse ruling in the Fort Richardson or Vieques
cases, along with the potential for further lawsuits, could compel EPA
and state regulators throughout the U.S. to enforce the same standards
on other operational ranges. Live-fire training would be severely
constrained throughout the Department of Defense and military readiness
would be critically threatened.
Clean Air Act Amendment
The Readiness and Range Preservation Initiative (RRPI) also
proposes a common-sense amendment to the Clean Air Act (CAA). The
Services need the flexibility of limited time extensions to comply with
General Conformity rules of the CAA so they can plan moves of missions
and weapons systems to installations based on operational needs and
still ensure that they can meet clean air requirements. Currently, when
new actions such as replacing weapon systems are taken in non-
attainment or maintenance areas, the CAA conformity requirement
prohibits initiating replacement without first demonstrating that the
future action conforms to the State Implementation Plan (SIP)
requirements in place today. While this ``conformity'' requirement has
not yet prevented military readiness actions, it has the potential to
significantly disrupt readiness activities whenever we seek to replace
or realign forces and equipment to improve military efficiency and
effectiveness, to modernize, or to meet the requirements of legally
mandated realignments and closures.
Both existing and new military readiness activities, and hence,
warfare readiness capabilities, could be adversely impacted by the
existing CAA General Conformity provision.
RRPI does not propose to exempt DoD from CAA conformity
requirements; it merely requests that DoD be allowed a three-year
period to find mutually beneficial solutions to offset emissions and
avoid disrupting military readiness activities. Further, this extension
does not apply to just ``any activities,'' but rather to the narrow
category of military readiness activities, which characteristically
generate relatively small amounts of emissions--often less than 0.5% of
total emissions in air regions.
Examples of Sustainable Management at Live Fire Training and Testing
Areas
Although the Army is very concerned with the impact that
environmental encroachment has on training, we are also mindful of
public concern for the potential impact that training and testing may
have on the environment. To address public concern, the Army
implemented local community outreach programs and environmental studies
to better understand and manage the implications associated with live-
fire training.
For example, the Army is conducting Regional Range Studies designed
to gather credible data on the true environmental impact of live fire
training and weapons testing. We are studying conditions and effects at
ranges at different installations representing a wide variety of
climatic, geologic and ecological settings. The program includes the
development of field assessment protocols, field studies, and a
lessons-learned report that will include a tool to prioritize future
range assessments. Soil, surface water, sediments, groundwater, and
vegetation are sampled and analyzed for explosives and metals related
to live-fire. Small mammals are also studied to determine ecological
impacts. Field protocols are being developed and will be continually
refined over the course of the Regional Range Study.
The Army is studying the behavior of military-specific chemical
compounds and the potential effects they may have on human health and
the environment. The major objective of this project is to identify
available data for modeling of chemicals typically associated with
munitions and their respective emissions and to compile toxicity
benchmarks for these chemicals. The findings will help develop
strategies for the removal or destruction of harmful byproducts, or to
design processes and products that minimize environmental impact.
Operational ranges produce scrap metals as byproducts of live-fire
training. The Army regularly removes this scrap from the range as part
of maintenance operations. Much of the range scrap contains valuable
metals that can be recycled, and some of this scrap may contain
hazardous residues that are handled in compliance with state and
Federal requirements. In response to issues associated with the removal
of range residue, the Army is chemically characterizing this material
and developing best management practices for managing spent munitions
at Army troop training ranges. All such scrap is subject to RCRA and
would continue to be under the RRPI.
The Army is also investing in Research and Development to eliminate
potentially harmful compounds from munitions throughout their
lifecycle. The most notable of these efforts is the Army's ``Green
Bullet.'' The Army has developed a substitute material (tungsten/tin or
tungsten/nylon) for the lead core bullet of our 5.56mm (M-16) round.
The Army has authorized the procurement of approximately 5 million
rounds this year and expects to complete the transition to the ``Green
Bullet'' by fiscal year 2005. A similar effort is underway for other
small arms rounds including 7.62mm and 9mm rounds. The Army also
recognized the need to eliminate potentially harmful dyes from two
smoke grenades and developed alternative materials for these smoke
grenades.
CONCLUSION
In closing, I would ask you to consider a few basic facts:
We have just over 1 million soldiers in uniform in the Active Army,
Army Reserve and Army National Guard who are committed to protecting
and defending the national interests of the United States. We must
train those soldiers for the fight. We must prepare them for the
uncompromising conditions of combat--and today, combat is a certainty
for most of them.
Our most effective training is ``live''--live fire and maneuver
with real weapons over real distances, in realistic settings, including
urban areas--making our ranges and training land indispensable our
readiness. The Army's total range and land holdings of 16 million acres
represents less than one half of one percent of the nation's landmass.
A small investment in training considering the risk faced by our
soldiers.
We are committed to being good stewards of the Nations's resources
entrusted to our care and its environment
The RRPI initiatives that DoD proposes are small measures to ensure
that our ranges on that land provide for the realistic training of
American soldiers.
Mr. Hall. General, thank you very much, sir.
We now recognize the Honorable Marianne Lamont Horinko who
is Assistant Administrator for Solid Waste and Emergency
Response. We have also at the table and we are honored to have
Jeffrey Holmstead who is the Assistant Administrator for Air
and Radiation with EPA. The Chair recognizes you, Mrs. Horinko.
Thank you.
STATEMENT OF HON. MARIANNE LAMONT HORINKO
Ms. Horinko. Thank you, Mr. Chairman and members of the
subcommittees. We are pleased to be here today to discuss the
administration's proposed National Defense Authorization Act of
Fiscal Year 2005 and the provisions that affect our
environmental protection statutes. I do ask that my following
statement be placed in the record.
The administration's proposal appropriately addresses two
equally compelling national priorities: military readiness and
environmental protection. EPA and the Department of Defense
share an important mission: the protection of both our national
and environmental security.
I would like to highlight some of the proposed statutory
changes that both agencies have developed to facilitate our
missions. First, EPA recognizes that military readiness depends
on DOD's ability to move assets and materiel around the Nation.
These movements of people and equipment may have impacts on
State Implementation Plans (or SIPs) for air quality.
Accordingly, EPA and DOD developed proposed changes to the
Clean Air Act to allow the armed forces to conduct these
activities while working toward ensuring that its actions are
consistent with a SIP's air quality standards. Under the
proposed bill, the armed forces would still be obliged to
quantify and report air quality impacts prior to starting its
readiness activities but they would be given 3 years to comply.
Second, the bill contains a change to the Resource
Conservation and Recovery Act, or RCRA, the Nation's solid and
hazardous waste law. The provisions would change the definition
of ``solid waste'' to provide flexibility for DOD regarding the
firing of munitions on operational ranges. EPA, the States, and
citizens will retain the right to take actions if munitions
pose a threat off-range or after a range ceases operations.
Third, the bill contains analogous changes to Comprehensive
Environmental Response Compensation and Liability Act, or
CERCLA, also known as the Superfund law. Explosives and
munitions deposited during normal use on an operational range
would be exempt from the definition of release. However, EPA
would retain the authority to take action to abate an imminent
and substantial endangerment to public health and the
environment. Again, the exemptions do not apply if
contamination migrates off-range or after a range ceases
operations.
Mr. Chairman, we believe that the administration's proposed
bill meets the needs of the armed forces, of EPA, and of the
public. The bill's provisions will ensure that we can protect
both our national and our environmental security.
That concludes my prepared remarks, Mr. Chairman. Mr.
Holmstead and I would be pleased to answer any questions that
the committee may have.
[The prepared statement of Hon. Marianne Lamont Horinko
follows:]
Prepared Statement of Marianne Lamont Horinko, Assistant Administrator,
Office of Solid Waste and Emergency Response, U.S. Environmental
Protection Agency
Mr. Chairman and Members of the Subcommittee: Thank you for
inviting me to speak with you today on behalf of the Environmental
Protection Agency about the Administration's proposed National Defense
Authorization Act of Fiscal Year 2005. EPA and the Administration
believe the proposed bill appropriately addresses two equally
compelling national priorities: military readiness and the protection
of human health and the environment. These priorities are not at odds,
and EPA has worked with the Defense Department to develop the proposals
before you today.
Both EPA and the Department of Defense (DoD) agree that
environmental protection is essential to readiness--from preserving
military training grounds and developing more efficient weapons systems
to safeguarding our servicemen and women. After all, EPA and DoD share
an important mission: the protection of both our national and
environmental security. One holds little value without the other, and
we believe neither mission should be sacrificed at the expense of the
other. Toward that end, EPA and DoD have for years worked cooperatively
toward achieving these goals, with tangible benefits to both the
military and the public alike.
The Administration feels that the proposed statutory changes before
this Subcommittee can allow the services to continue to ``train the way
they fight,'' while protecting the health of our citizens and
safeguarding our natural resources. The bill satisfies DoD's readiness
concerns by providing that EPA, States or a citizen may not take an
action under the Resource Conservation and Recovery Act (RCRA) or the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) at operational ranges. However, EPA, States, and the public
retain RCRA and CERCLA authorities for off-range migrations of
munitions and their constituents. Further, the bill does not amend
federal, state, or private authorities under the Safe Drinking Water
Act. I would like to highlight for the Subcommittees several of the
proposed statutory changes that the Administration proposes to
facilitate our twin missions, both vital to the health and security of
the nation, as well as how we understand DoD plans to assume these
responsibilities.
Proposed Changes to the Clean Air Act
EPA recognizes that military readiness depends on DoD's ability to
move assets and materiel around the nation--perhaps on short notice.
Such large-scale movements of people and machines may have impacts on
State Implementation Plans (or SIPs) for air quality.
Accordingly, the Administration has developed proposed changes to
the Clean Air Act's SIP provisions to allow the military to engage in
such activities while working toward ensuring that its actions are
consistent with a SIP's air quality standards. Under the proposed bill,
the military would still be obliged to quantify and report its effects
on air quality, but would be given three years to ensure that its
actions are consistent with a given state's SIP. The Administration
believes this provision effectively addresses the military's readiness
concerns, while ensuring timely compliance with air quality standards.
Proposed Changes to RCRA
The Administration's bill also proposes to amend RCRA, the nation's
solid and hazardous waste law. First, the bill contains language that
would change the statutory definition of ``solid waste'' under RCRA to
provide flexibility for DoD regarding the firing of munitions on
operational ranges, while clarifying that the definitional exemptions
are not applicable once the range ceases to be operational. This change
comports with EPA practice and the Military Munitions Rule that have
defined EPA's oversight of fired munitions at operations ranges since
1997. The Administration's bill specifically maintains the authority of
EPA, the States and citizens to take actions against the military or
its contractors in the event that munitions or their constituents
migrate off-range and may pose an imminent and substantial endangerment
to human health or the environment. The ability of EPA, the States, and
citizens to use this authority will be facilitated by the availability
of on-range assessment and sampling information that is conducted by
DoD under its authorities.
Secondly, the Administration's proposal reflects a statutory
definition of ``operational range'' developed by EPA and DoD. Under the
proposed revised definitions of ``solid waste'' and ``range,'' the
military will have statutory assurance that EPA, the States, and
citizens will not be able use RCRA to intervene in training activities,
weapons development, or other related munitions activities on
operational ranges. EPA, the States and citizens still retain the
authority to take action under RCRA if such activities pose a threat
outside the operational range or after a range is declared by DoD to be
no longer operational.
The history of interaction between EPA and DoD demonstrates that
the two agencies can work together to achieve their respective
missions, and EPA will continue to work with DoD to ensure that both
missions are successfully carried out under the proposed legislation.
We note, for the record, that in its history, EPA has in only one
instance taken an enforcement action that resulted in the cessation of
live fire training at a military base--namely, at the Massachusetts
Military Reservation (MMR) on Cape Cod, Massachusetts. There, EPA's
Regional Office took action after consultation with Headquarters and
used the Safe Drinking Water Act--which remains unaffected under these
proposed changes. EPA acted in this single instance only after
determining that the groundwater aquifer underlying MMR, the sole
source of drinking water for hundreds of thousands of Cape Cod
residents, was threatened with contamination by munitions constituents,
and only after efforts to support voluntary action failed to stop the
spread of contamination. Today at MMR, EPA is overseeing cleanup work
to ensure that Cape Cod residents have a supply of drinking water that
meets relevant standards now and in the future. The Defense Department
shifted some of its training to another facility and has continued to
conduct training at the Massachusetts Military Reservation using small
arms, as well as other training without using explosives, propellants
and pyrotechnics.
Proposed Changes to CERCLA
The Administration's bill proposes analogous changes to CERCLA,
also known as the Superfund law. The changes would exempt from the
definition of ``release'' under CERCLA explosives and munitions and
related constituents deposited during normal use while they remain on
an operational range. EPA would retain CERCLA Section 106 authority to
take action to abate an imminent and substantial endangerment to public
health and the environment due to the deposit or presence of explosives
and munitions on an operational range. Again, this proposed change to
CERCLA regarding the statutory definition of ``release'' is meant to
provide an exemption only while the range is operational and does not
impinge on EPA or state authority to take action to address
contamination migrating off an operation range. As with the RCRA
changes, EPA and State authorities would not be affected on non-
operational ranges.
Conclusion
In conclusion, EPA and the Administration believe that the bill
appropriately takes account of the interests of the American people in
military readiness and in environmental and public health protection.
EPA will continue working with DoD, the States, Tribes, federal land
managers and the public within the framework of the proposed law to
ensure that DoD can carry its national security mission while the
Agency is able, at the same time, to carry out its mission of
protecting human health and the environment.
Mr. Hall. Thank you very much.
Now at this time we will hear from Douglas Benevento,
Executive Director of Colorado Department of Public Health and
Environment. I think if we have the cooperation of those who
are managing the screen, if you want to turn I think you can
see it from each side there. At this time, I guess, the
Chairman will recognize the Executive Director for as much time
as he consumes.
STATEMENT OF DOUGLAS BENEVENTO
Mr. Benevento. Good morning. My name is Doug Benevento and
I am the Executive Director of the Colorado Department of
Public Health and Environment. In that capacity I am
responsible for the safe environmental programs, as well as a
majority of the State's health programs.
Further, I am the former chair of ECOS' DOD forum as well
as I serve on the executive committee of ECOS so today I am
speaking for the State of Colorado and not ECOS.
I would like to go through briefly how Colorado evaluated
the proposal from the Department of Defense. We did so using a
couple of principles. First, no change to the environmental
laws pose a threat to human health or the environment. In this
case no temporary waiver could result in any offsite release.
We also felt that it needed to be maintained on operational
ranges.
Second, full liability needed to rest with the Department
of Defense for cleanup activities once a site is no longer an
operational range. I believe both of those principles have been
met. It is important to note that the DOD proposal is very
narrow. It applies to munitions on operational ranges.
It does not apply, in Colorado at least, to facilities such
as the Rocky Mountain Arsenal or the Pueblo Chemical Depo or
the former Lowry Bombing Range or the former Lowry Air Force
Base. It only applies to those operational ranges that they are
maintaining and still can use or are using.
I would briefly like to walk through the RCRA provision and
discuss some of the changes that the Department of Defense has
made that I think make a good proposal. First, I think it is
important to note that at this point I don't know of any State,
Colorado certainly doesn't, and I don't know of any State that
attempts to regulate military training on operational ranges.
Colorado has worked well with DOD on training activities on
their sites in our State. The proposed legislation merely seeks
to codify a generally good relationship with Colorado and other
States on these issues.
I have had numerous conversations with DOD and I feel
comfortable representing their intent behind this proposal.
What DOD is seeking are protections for their training
activities on a range. They are not seeking an exemption from
offsite impacts caused by their activities.
For example, this legislation would not exempt DOD from a
permitting requirement for open burning or open detonation (OB/
OD) when used as a disposal activity. Colorado currently
permits such activities and with or without this legislation we
will continue to permit such activities. However, under this
law an OB/OD activity that is a necessary part of training
would be exempt. That is a legitimate exemption and currently
the practice in Colorado and, I believe, all other States.
Nevertheless, I testified on this issue last year and I
understood DOD's intent but I was concerned that there could be
some unintended difficulties with their RCRA proposals. The
first was definitional. The operational range definition was
not in statute and I thought this could create an ambiguity.
However, I think that has been resolved through the
inclusion of a definition in the 1904 NDAA which has defined an
operational range as, under the jurisdiction, custody, or
control of the Secretary of Defense and that is used for range
activities, or although not currently being used for range
activities, that is still considered to be used for range
activities. I think this provides clarity and I think it should
provide some comfort to States.
Second, I was concerned that DOD was not clear with respect
to their intent. I think that was just part of the problem but
that was just that there was a lot of language and complex
language. I think they significantly simplified this year's
language by stating the scope of the exemption up front. It
only applies to exempt from the definition of solid waste,
military munitions and their constituents that meet a 3 prong
test; 1. the munitions must be deposited incident to their
normal and expected use; 2. they must be deposited on an
operational range, and; 3. the munitions and the constituents
must remain on the range. If any of these criteria are not met,
they are not included in the exemption.
Third, last year I expressed concern that that definition
of operational range included ranges that were not currently in
use. From an environmental regulators point of view, I think
that should not be a concern so long as those ranges are not
open to the public and there are no offsite releases and they
are not being used for some different incompatible purpose. I
don't believe inclusion of these ranges would pose any threat.
Further, it is my understanding that DOD needs to retain
these ranges because they potentially could be useful and the
ability to acquire new ranges is very limited. I think DOD has
done an excellent job of simplifying the language so it is
clear what is being exempted and what is not being exempted.
The language, I think, can always be tweaked. I believe this
year's language sufficiently spells out the region's scope of
the exemption.
Fifth, an issue that was of some concern to me last year
was how to detect and verify that there are no offsite
releases. In conversations that DOD has had with me and that
DOD has had with other States as well as State's attorney
generals, I think they have worked out a system to evaluate the
impact that their current ranges are having or could be having
on the environment. I am comfortable that this information (1)
will be sufficient and (2) will be publicly available.
Sixth, DOD has language in this year's legislation which
clearly states that once a range is no longer operational they
are responsible for cleanup. The inclusion of this language is
merely a clear statement of DOD's original intent and should
obviate any criticism that they were attempting to avoid their
environmental responsibilities on their property.
Finally, with respect to RCRA, they have removed language
from last year's legislation which would have created a CERCLA
preference for cleanup. In other words, CERCLA would have
applied and States would have been prohibited from using their
RCRA authority. That has been removed and I think it is a very
significant concession and we thank DOD for that.
I am equally persuaded that the language of DOD's current
CERCLA provision is sufficiently narrow to preserve the common
sense proposition that use of munitions for testing and
training on an operational range should not be considered a
release of a hazardous substance triggering the requirements of
CERCLA.
I expressed concern last year that it is more difficult, I
think, to control offsite releases under the Clean Air Act and
we continue to have some concerns but based upon the
relationship that we have developed with the Department of
Defense over the past year, I think that those issues can be
worked out. I am comfortable that with Mr. Holmstead's help
that we can work that issue out so that we can ensure the
environment is protected.
I believe the RCRA and CERCLA provisions of the Range
Readiness and Preservation Initiative are appropriate and would
not pose any risk in Colorado. The changes being sought merely
allow for additional flexibility for DOD in carrying out
training for their core mission.
It is appropriate for environmental regulators to help
provide that flexibility so long as we can ensure that we can
fulfill our core mission. DOD should be commended for immense
amount of time they have spent working with Colorado and other
States to address our concerns in a positive problem solving
fashion.
Thank you, Mr. Chairman.
[The prepared statement of Douglas Benevento follows:]
Prepared Statement of Douglas Benevento, Executive Director, Colorado
Department of Public Health and Environment
Good morning, my name is Doug Benevento and I am the executive
director of the Colorado Department of Public Health and Environment.
In that position I am responsible for the oversight of the State of
Colorado's air, water, solid waste and hazardous waste programs as well
as the bulk of the state's health programs. The majority of the
programs that I am responsible for on the environmental side are
programs that are delegated to the state through the Clean Air Act, the
Clean Water Act, or the Resource Conservation and Recovery Act. I am a
member of the Environmental Council of States and serve on that body's
executive committee. Also, I am the former co-chair of ECOS' DoD forum,
which is designed to open communications with DoD for the purpose of
working through issues like this one. I do want to make clear though
that today I am speaking for the state of Colorado and not ECOS or the
DoD forum.
I'm here today to testify on the excellent progress that has been
made on DoD's proposal over the past 2 years. Through open
communication and give and take I believe a product has been developed
that should be mostly acceptable to both the DoD and the states.
There is an interesting dynamic between state regulators and the
Department of Defense. State regulators tend to automatically react
with skepticism on any perceived infringment on our authority to
regulate DoD activities. We are very good at pointing out every
shortfall in any environmental proposal sought by DoD but are not very
good at providing mutually acceptable solutions. A review of the
testimony of state official on this topic is illustrative of this
point. On the other hand DoD has in the past not done a good job of
reaching out to state officials when developing their proposals and we
have at times only found out about them after a final position has been
adopted.
I think both sides have done an excellent job of trying to remedy
those past shortcomings. From a state's perspective I have read DoD's
proposed changes critically, but with a problem solving perspective,
and have tried to make suggestions that are helpful to their goals
while ensuring no threat would arise to the public from any change. On
DoD's part they have done an excellent job of reaching out to states.
They have held numerous working meetings with state officials at our
national organization, the Environmental Council of States (ECOS), and
with other state organizations. Also, they have met with the Attorney
Generals to try and ameliorate concerns and make changes to their
proposal.
I would also like to point out for the committee that I have not
been hesitant in the past to use Colorado's regulatory authority when I
believed it was appropriate. For example, when the Army found Sarin
nerve gas bomblets at the Rocky Mountain Arsenal, a superfund site in
the Denver Metropolitan Area, and proposed open detonating them as a
remedy the state delivered a RCRA order to them at my directing
prohibiting them from that course of action. Also, when asbestos was
found in the soil at Buckley Air Force base the state mandated a
stricter cleanup plan than the Air Force would have preferred. We are
also currently engaged in an action against the Air Force also dealing
with cleanup of asbestos in soils at the former Lowry Air Force base. I
can provide more examples of enforcement actions the state has taken if
only to demonstrate that I don't come to this issue as someone who has
always agreed with DoD on the application of environmental laws.
When I evaluated the DoD proposal I evaluated it using 2
principles. First, no change should pose a threat to human health or
the environment; in this case no temporary waiver could result in any
offsite release. Second, full liability needed to rest with the DoD for
cleanup activities once a site is no longer an operational range. I
believe both of those principles have been met.
The DoD proposal is very narrowly tailored. They are seeking a
temporary waiver from the Resource Conservation and Recovery Act
(RCRA), the Clean Air Act, and the Comprehensive Environmental
Response, Compensation, and Liability Act. The temporary waiver would
only apply to operational ranges, which is defined as those ranges that
are used, or are anticipated for use, for military training activities.
This proposal would not apply to those sites, such as the Rocky
Mountain Arsenal or the former Lowry bombing range or the Pueblo
Chemical Depot or the former Lowry Air Force base all of which are
excluded through a plain reading of the language DoD has put forward.
As the person in Colorado who is responsible for running the programs I
can say with certainty sites such as these will not be affected.
Further, any site which has been put to a use incompatible with
military training is not covered by this proposal. Finally, when a site
is no longer in use as an operational range all authorities would snap
back and the states or EPA would have full authority to act
appropriately. These are the facts and I think they're little room to
dispute them.
The provisions of the Clean Air Act are also narrow. It would allow
DoD and the states a 3-year period to accommodate emissions from new
military readiness activities into state implementation plans. This
provision would apply to only new military readiness activities or
construction related to the new activity.
RESOURCE CONSERVATION AND RECOVERY ACT AND THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT
Working with the states DoD has made changes to their proposal
which I believe address state concerns and ensure that human health and
the environment are protected while meeting their goal.
When I testified last year in the Senate on this issue I offered
several suggestions to DoD's proposal. I would like to outline how
these suggestions have been addressed by DoD in the remainder of my
testimony.
I would like to begin with how the DoD proposal would impact RCRA
and the authority of states under RCRA. I want to state at the outset
that I don't know of any state that issues RCRA permits or attempts to
regulate normal training activities of the military. Colorado has
worked well with DoD on training activities on their sites in out
state. The proposed legislation merely seeks to codify a generally good
relationship with Colorado and other states on these issues.
I have had numerous conversations with DoD and I feel comfortable
representing their intent behind this proposal. What DoD is seeking are
protections for their training activities on a range. They are not
seeking an exemption from offsite impacts caused by their activities.
For example, this legislation would not exempt DoD from a
permitting requirement for open burning or open detonation (OB/OD) when
used as a disposal activity. Colorado currently permits such activities
and with or without this legislation we will continue to permit such
activities. However, under this law an OB/OD activity that is a
necessary part of training would be exempt. That is a legitimate
exemption and currently the practice in Colorado and other states.
Nevertheless, even though DoD was clear about their intent I was
concerned that it could pose some unintended difficulties. The first
was definitional. The proposal last year exempted munitions on an
operational range. However, this posed an ambiguity since operational
range did not have a statutory definition. This ambiguity has been
resolved through the ``04 NDAA which has defined an operational range
as, under the jurisdiction, custody, or control of the Secretary of
Defense and;
1. that is used for range activities, or
2. although not currently being used for range activities, that is
still considered by the Secretary to be a range and has not
been put to a new use that is incompatible with range
activities.
In my opinion, this definition provides sufficient clarity to
ensure the exemption sought by DoD is limited to those areas under DoD
control for necessary munitions related testing and training. This
language should not apply to private ranges or to defense related
contractor facilities.
Second, I was concerned that last year's exemption language could
be interpreted to apply offsite. DoD was very clear that was not their
intent and this year's language has changed to clarify that point. DoD
has significantly simplified this year's language by stating the scope
of the exemption up front, it only applies to exempt from the
definition of solid waste, military munitions and their constituents
that meet a 3 prong test;
1. the munitions must be deposited incident to their normal and
expected use;
2. they must be deposited on an operational range, and;
3. the munitions and the constituents must remain on the range.
If any of these criteria are not met, they are not included in the
exemption.
Third, last year I expressed concern that that definition of
operational range included ranges that were not currently in use. This
is a difficult issue, but after numerous conversations with DoD I am
comfortable with the inclusion of having ranges that are not currently
being used for training sharing in the exemption. From an environmental
regulators point of view so long as those ranges are not open to the
public and there are not offsite releases and they are not being used
for some different incompatible purpose, I don't believe inclusion of
these ranges would pose any threat. Further, it is my understanding
that DoD needs to retain these ranges because they potentially could be
useful and the ability to acquire new ranges is very limited.
However, I believed from a state perspective it would be useful if
the military went through a review process of these inactive ranges to
determine whether they should remain inactive, go to active status, or
move to cleanup if necessary. Since my testimony of last year, DoD has
completed an inventory of their operational ranges which has been
provided to Congress. I understand this inventory was mandated by law
in 2003 and will be updated annually until 2008. In addition, I am
aware that a 2003 directive issued by DoD requires that range
inventories be updated at least every 5 years to verify that they are
still necessary. I think these inventories will assure that ranges
which are not currently active will be evaluated and blunts any
criticism that DoD will merely hold inactive ranges to avoid cleanup.
Fourth, DoD has done an excellent job of simplifying the language
so it is clear what is being exempted and what is not being exempted.
While the language can always be tweaked, I believe this year's
language sufficiently spells out the reach and scope of the exemption.
Fifth, an issue that was of some concern to me last year was how to
detect and verify that there are no offsite releases. In conversations
with DoD I understand that they have already established policies to
evaluate the impact of their ranges and to make that information
public. By law, the results of all DoD on-range assessments or
monitoring are available to EPA, and through FOIA to states and
citizens as well; beyond that DoD has advised me that they are
finalizing a policy formally requiring proactive sharing of such
information with state and federal regulators and the public. Further,
should constituents from military munitions migrate from an operational
range, it would trigger a number of requirements under CERCLA section
103 respecting the release of hazardous substances, and response
requirements under CERCLA section 104 and 10 U.S.C., section 2701. The
combination of these authorities and binding policies will ensure that
Congress, state, and federal regulators, as well as the public will
soon have access to far more information about the environmental
effects of DoD's on range activities than we ever possessed before.
Sixth, DoD has language in this year's legislation which clearly
states that once a range is no longer operational they are responsible
for cleanup. The inclusion of this language is merely a clear statement
of DoD's original intent and should obviate any criticism that they
were attempting to avoid their environmental responsibilities on their
property.
Finally, they have removed language from last year's legislation
which would have created a CERCLA preference for cleanup. What that
would have done is preempt state hazardous waste laws and in favor of
CERCLA. The elimination of this language was important to Colorado and
we appreciate greatly their acknowledgement of our concerns.
As with the redraft of the RCRA provision, I am equally persuaded
that the language of DoD's current CERCLA provision is sufficiently
narrow to preserve the commonsense proposition that use of munitions
for testing and training on an operational range should not be
considered a release of a hazardous substance triggering the
requirements of CERCLA. As written, the exemption from the definition
of release would apply to ``military munitions, including unexploded
ordnance, and the constituents thereof'' that are deposited on the
range incident to their normal and expected use in military test and
training activities. As with RCRA my concerns about the scope of last
year's proposal have been addressed.
THE CLEAN AIR ACT
I expressed concern last year about revisions to the Clean Air Act
that are sought with this proposal. While I do believe that flexibility
from the conformity provisions of the Clean Air Act can be appropriate,
crafting that flexibility is a challenge.
My concerns are based on the simple fact that the potential for
offsite impacts are much greater in this media. As I mentioned in the
beginning of my testimony a basic principle I have is no change should
result in an offsite impact. However, I have been very impressed with
the diligence of DoD staff in working through issues on their proposal.
Further, I am convinced and have been assured by DoD staff that they
will continue to the collaborative effort with states that began over a
year ago. Colorado will continue to work with them on this issue in
hopes of finding a mutually solution that all of us feel comfortable
supporting.
CONCLUSION
I believe the RCRA and CERCLA provisions of the Range Readiness and
Preservation Initiative are appropriate and would not pose any risk in
Colorado. The changes being sought merely allow for additional
flexibility for DoD in carrying out training for their core mission. It
is appropriate for environmental regulators to help provide that
flexibility so long as we can ensure that we can fulfill our core
mission. DoD should be commended for immense amount of time they have
spent working with Colorado and other states to address our concerns in
a positive problem solving fashion.
Mr. Hall. All right. Thank you very much. We will be
allowed to make inquiries of the Executive Director. We have
two-way communications.
At this time we will begin our questioning of those who
have testified. I will start with Mr. DuBois.
In your testimony, you state that your critics urge you to,
and I am quoting here, ``rely on wholesale repeated use of
emergency exemptions for a routine ongoing readiness activity
that could easily be accommodated by minor clarifications and
changes to existing law.'' How does this currently happen and
for what reasons have the exemptions been issued?
Mr. DuBois. Mr. Chairman, as we have discussed today, these
are very complex issues of a legal nature. I would defer if I
might with your permission.
Mr. Hall. Without objection, Mr. Cohen, we ask you to give
your oral testimony. Your name is in the record and we
appreciate your presence.
Mr. Cohen. Thank you, sir. Your question goes to whether it
is possible for DOD to manage its ranges through the use of
Presidential exemptions. The experience that the executive
branch has had for those exemptions suggest that it is not. The
exemptions have not often been used by any department,
including the Department of Defense. On the only occasions in
which they have been used they have proven unsatisfactory.
In 1980 the most notable use of those exemptions, or
attempt to use those exemptions occurred when President Carter
attempted to exempt the construction of a refugee camp in
Puerto Rico, Camp Al, for refugees that leave from Cuba from a
host of environmental provisions. I believe he made exemption
findings under four or five different environmental statutes
and in numerous cases finding that it was in the paramount
interest of the United States that the camp be created for
these refugees.
The construction activity of the camp was enjoined the day
the president issued the emergency proclamation. No work was
ever done pursuant to this emergency proclamation because of
litigation. His proclamation was renewed by President Reagan
again under the same 4 or 5 or 6 environmental laws. Yet,
because of litigation the work was never permitted to go
forward even though two successful Presidents found that it was
in the paramount interest of the United States.
A more recent example from the Department of Defense's own
experience has occurred annually since 1997. In litigation in
the west concerning reporting requirements about activities the
military has at a highly classified installation, the DOD
attempted to classify according to Congress and the public not
so that we could alter our cleanup activities but so that we
could then release to the public and our potential adversaries
extraordinarily sensitive information about certain of our
activities.
A district court in the Justice Department in our view
quite incorrectly handled that. The executive branch lacks the
authority to classify that information and, therefore, we would
have to release that information to the world, notwithstanding
that it was highly classified. The President has ever since
annually exempted the release of that information to the public
pursuant to the paramount interest standard under RCRA.
That has proven to be an extraordinarily cumbersome and
burdensome exercise to the Air Force, the Defense Department,
and the White House. It involves annually submitting over the
course of a 5 or 6-prong process through the general counsel of
the Air Force, the Secretary of the Air Force to me, to my
general counsel, to the Deputy Secretary of Defense, Secretary
of Defense, the National Security counsel, the National
Security Adviser, the counsel to the President, the Chief of
Staff, and the President all for one misdecided district court
decision with respect to one base. It is an extraordinarily
onerous, time-consuming procedure to go through on an annual
basis.
Sir, the Department believes that this experience
demonstrates that these emergency exemptions, although they can
occasionally be useful for extraordinary circumstances, are not
as a matter of public policy an acceptable way for us to manage
routine ongoing activities that have occurred in our military
ranges as long as we have our forces and will have to occur in
the future as long as we have any national events.
Sir, we believe as a matter of public policy that the way
to deal with this issue is to adjust the law to conform to
reality rather than to require the President to make emergency
findings.
If I could use an example, sir, we think that every
automobile ought to have an emergency repair kit but if the
only way you get to work every morning is using that kit, there
is something wrong with your car and it needs to be repaired.
Mr. Hall. I will ask you this question. Can you tie your
position to the affect it would have on readiness for the
position we find ourselves in today?
Mr. Cohen. Yes, sir. The Department of Defense has for a
long time used industrial pollution statutes to govern our
military test and training on our ranges. It would not be
consistent with our ability to train as we fight here.
Mr. Hall. Give us an example of some of the thrust of the
request?
Mr. Cohen. Sure. Sir, there are two good examples that come
to mind. We pursued at the former Vieques Range in Puerto Rico
litigants who were trying to claim that the live-fire test and
training at that range, that naval artillery was a Superfund
still or release and that it was a waste management activity.
The relief that they sought was to shut down live-fire test
and training at the range. That litigation was brought as part
of a concerted campaign to force the range to close. As you
know, sir, that campaign was actually successful. The range was
forced to be closed.
Mr. Hall. And that live-fire is what type military
hardware?
Mr. Cohen. I believe, sir, it was naval artillery.
Mr. DuBois. It was actually air to ground bombardment. I
moved here after the initial suit was filed. Although the court
found they could continue training, it did not allow live bombs
to be dropped. They were dummy bombs.
I can tell you as someone who has dealt with these things,
the young man or young woman on the rolling deck of an aircraft
carrier deals with it differently with bolting it onto the
underside of the wing than he or she does when they are putting
concrete live bombs on it. There is a significant difference
and that occurred. I think Mr. Cohen wants to also remind the
committee of the issue at Fort Richardson in Alaska.
Mr. Cohen. Thank you, Ray. Yes. Fort Richardson, sir, is
ongoing litigation today that was filed several years ago. It
concerns a very large installation that supports one our
largest brigades. General Weber can probably speak to the
importance of the testing and training that goes on there.
Again, litigants at Fort Richardson claimed that the live-
fire test and training that was taking place at the Fort
Richardson Eagle River Flats Range was a waste management
activity under RCRA and was a Superfund spill or release under
CERCLA and had to be managed accordingly.
We are seriously concerned about the risks that litigation
poses to our military test and training at that base and
believe that treating live-fire test and training as if it were
an industrial waste management activity is fundamentally
inconsistent with the need to train the way we fight.
Mr. Hall. I thank you. My time has expired. The Chair
recognizes Mr. Dingell for 5 minutes.
Mr. Dingell. Could you please tell us if you concur with
the statements made by Mr. Wolfowitz on this matter speaking on
behalf of the Department of Defense in which he said that in
most instances the Department of Defense was able to comply
with the requirements of these laws?
Mr. DuBois. Mr. Dingell, I think that the Secretary reads
the----
Mr. Dingell. Do you agree with them or not?
Mr. DuBois. I agree with them but only insofar as the
Department of Defense----
Mr. Dingell. Well, let me read this to you. My time is
limited. I have 5 minutes so I have to proceed rather rapidly.
Mr. Wolfowitz was asked whether there had been any conflicts
between RCRA, CERCLA, Clean Air, and military readiness. He
said as follows. He said that in the vast majority of the cases
we have demonstrated we are able to comply with departmental
requirements and to conduct the necessary military training and
testing. He directed the secretaries to give greater
consideration to using existing exemption processes in these
environmental and national resource laws. In the exceptional
cases it may present conflicts. Do you agree with those
statements?
Mr. DuBois. Insofar as the military----
Mr. Dingell. Just yes or no, if you please.
Mr. DuBois. The statement----
Mr. Dingell. Do you agree with the Secretary or you don't?
Mr. DuBois. I agree with the Secretary insofar as the
military had to provide work-arounds for the situation.
Mr. Dingell. All right. Now, to date no exemptions have
been invoked. Have you ever requested any exemptions from RCRA,
CERCLA, or the Clean Air Act or the Department of Defense?
Mr. Cohen. Sir, only the annual exception requested from
1997.
Mr. Dingell. Only what?
Mr. Cohen. Only the one that we had to request annually
from 1997 on as a result.
Mr. Dingell. And that is where?
Mr. Cohen. That concerns a classified location in the west.
Mr. Dingell. Where?
Mr. Cohen. A classified location in one of our western
States.
Mr. Dingell. So you have one instance, right?
Mr. Cohen. Annually. Yes, sir.
Mr. Dingell. And you have gotten that every year?
Mr. Cohen. Yes, sir.
Mr. Dingell. Okay. Now, I note that DOD has acknowledged
that there have not been any instances in which RCRA or CERCLA
have impacted readiness, and specifically no State has every
used its RCRA or Superfund authority in a matter which has
affected readiness. Do you agree with that statement, Mr.
Cohen?
Mr. Cohen. Yes, sir.
Mr. Dingell. Very good. Now, you did a press background
briefing in which you said legal and regulatory regimes that
have enabled you to protect readiness while you protect the
environment is ``under siege.'' What is the siege that you are
confronting there?
Mr. Cohen. The litigation, sir, that exist at Fort
Richardson, that until recently existed at Vieques, and that
the Fort Richardson plaintiffs have stated they want to start a
campaign up nationwide.
Mr. Dingell. Now, please name the States' Governors that
have you under siege by using the current Solid Waste Disposal
Act or State Superfund authorities.
Mr. Cohen. None, sir. We have received exemplary support
from the States.
Mr. Dingell. So no States have you under siege. Are you
under siege from Administrator Levitt at EPA because they are
using the Solid Waste Disposal Act or Superfund statutory
authorities in a manner which adversely affects training or
military readiness?
Mr. Cohen. No, sir. To the contrary. Our concern is that
State and Federal laws will be overturned.
Mr. Dingell. Are you under siege from the Agency for Toxic
substances and disease registry using its authorities that stem
from the term release has defined in the Superfund statute?
Mr. Cohen. No, sir.
Mr. Dingell. I am kind of curious. With 43 seconds
remaining to me, I am trying to figure out what you are doing
here. You apparently have no significant complaints about how
things are going. You cannot tell me where you were under siege
or what is denying you the opportunity to proceed to conduct
military training that is necessary to have the necessary stage
of readiness.
Mr. Chairman, I thank you for the use of the time.
Mr. Hall. I thank the distinguished ranking member. Let me
follow up on his line of questioning which concludes you have
no significant complaints. I take it that you do, in fact, have
significant complaints but your complaints are not with the
regulatory agencies and the way that they have been able to
work with you, but in terms of the end result you have
significant complaints mainly because of the litigation
process. Is that correct?
Mr. Cohen. Yes, it is. That is exactly right. Our worry is
that existing State and Federal policy which does, in our view,
right the balance of readiness and the environment and has for
30 years on a very bipartisan basis, that that is a risk in
court.
Mr. Hall. So even in a relationship with State agencies,
and the EPA is a good done, you still have problems. Let me ask
you this. The clarifying language that you are seeking, for
example, the waste release, since your problem is litigation,
also you have the problem of classification. Are you satisfied
that this clarifying language would protect you from the
litigation or do we need to go further?
Mr. Cohen. Sir, we work closely with EPA and the Justice
Department and our partners in State government. We believe
that it goes exactly far enough. It strikes the right balance.
Mr. Hall. Okay. Let me ask you, some of the witnesses on
our second panel are going to talk, I think, about the
difference between an active range or an inactive range and if
that is different from an open or closed range. Under the
language your obligation for cleanup is going to be triggered
by a range being closed. What would be the difference between
an inactive and a closed range and how long could a range stay
open but still be inactive?
Mr. Cohen. Sir, the difference between an inactive range
and a closed range is that the inactive range remains in the
reserve of lands that an installation has that we can use. It
is critical for us and I think I will defer to my Army
colleagues. It is critical for us to have the flexibility to
alter the configuration of our range lands and the way in which
we use them on a frequent basis for the body of training but I
will defer to the experts on that.
Mr. Weber. Sir, currently the Army ranges that we have, 3
percent of our ranges are in inactive status currently which
implies what Mr. Cohen was saying, that we have decided to
eliminate the need for the range. You may use the range to do
something else with it. You may stand up the range
additionally. Some of the ranges are in a connected status
because we don't have the forces that some of our installations
need to train on a daily basis with the range.
It could be any number of foundational things but an
inactive range is set aside, of course, to decide, (1) do we
still need it to train under its current configuration which
clearly is not a requirement for today possibly; (2) do we need
to reconfigure, reuse the land, rebuild a different type of
range, etc.; or (3) a closed condition which we no longer have
the need or requirement for the range at all.
Mr. Gillmor. Thank you. I want to go, if we could, to
Assistant Administrator Horinko. First, I want to commend EPA.
Apparently you have been able to work very well with DOD, as I
take it, in support of the clarification. But I do want to ask
if the Readiness and Range Preservation Initiative does replace
EPA's authority under Superfund Section 104 on operational
range, the Superfund's eminent hazard authority. Can you give
us some comments on how EPA feels about those limitations?
Ms. Horinko. EPA feels that notwithstanding these specific
fairly modest exemptions that we have sufficient authority that
we have retained but we can gather the information and enforce
the laws to address serious sources of contamination.
Importantly, this doesn't affect the safe drinking water which
allows us to protect aquifers that are sources of drinking
water.
That is where we are cleaning up the Massachusetts military
reservation. We can use Superfund Section 106, Imminent and
Substantial Endangerment Authority, to abate immediate threats,
even from munitions on active ranges. Certainly we will be
aggressive and continue to be aggressive for any offsite
migration of contamination at these sites. All of our priority
there is retained across all of these statutes.
Then even on active ranges we still retain authority to
deal with munitions that have been disposed of, landfills
buried and contamination resulting from the munitions disposal
and also from other activities on the base or on the range.
These are often very large installations with lots of solvents,
degreasers, TCE, other types of contamination. EPA will still
have full and complete authority there.
Then, of course, the Department of Defense has pledged to
share its own assessment information with us at EPA so we think
we have got a full tool box that we can use to assess and
address contamination on these ranges.
Mr. Gillmor. Thank you very much. I have a couple of other
areas to cover but my time has expired so let me recognize the
gentlelady from California, Ms. Solis.
Ms. Solis. Thank you, Mr. Chairman. I will direct my
questions to Ms. Horinko. The question I have is am I correct
in stating that when the EPA encounters ground water
contamination, one of the first actions EPA takes is to control
the source and prevent migration of the contaminants if
possible?
Ms. Horinko. That is partially correct. The first thing we
would do is assess the aerial extent of the contamination. Then
once we determine the source then, yes, we do prefer source
control.
Ms. Solis. Would you agree that it makes no sense to
eliminate State authorities authorized to them by EPA that
allow States to control the source and prevent migration of
military munitions constituents like perchlorate in ground
water even if under an operational range?
Ms. Horinko. I would not say that makes sense in a
situation where there is live-fire training going on and
actually putting your State or Federal folks in harm's way by
virtue of conducting a cleanup activity would be unwise. There
are a few cases where I would not send my folks or State folks
to do assessment or cleanup.
Ms. Solis. However, I guess what I am trying to get at here
is that the munitions rules, as I understand it, don't apply to
constituents. For example, military munitions like perchlorate
and royal demolition explosives. I don't think we have a
problem here.
Ms. Horinko. The munitions rule was actually put out in
1997 so it predates my time at EPA. I don't believe it applied
to constituents but I would have to go back and check on that.
[The following was received for the record:]
The Munitions Rule referred to by Congresswoman Solis
applied to munitions and did not apply to constituents.
Ms. Solis. Would you? Please report back to the committee.
My second, or third, question for you is under Section 7002 of
the Solid Waste Disposal Act the only Federal authority that
allows the State, a drinking water utility, or a citizen like
the Marine families at Camp Lejeune to bring an action in
Federal court to address perchlorate contamination on an
operational range if it may present an imminent and substantial
endangerment to human health or the environment. How would you
answer?
Ms. Horinko. First of all, again we still retain our
authority under the Safe Drinking Water Act to compel training
activities to halt or be changed.
Ms. Solis. But that is not for citizens, as I understand
it.
Ms. Horinko. I will have to check on that as well.
[The following was received for the record:]
Under the Safe Drinking Water Act, the Citizens Suit
provisions would not provide the authority for a citizen to
take legal action against persons that caused or contributed to
contamination to an underground source of drinking water that
posed an imminent and substantial threat to health. EPA would
have the authority to take such action under the Safe Drinking
Water Act.
Ms. Solis. Can you please report that back to the
committee?
Ms. Horinko. Absolutely.
Ms. Solis. And isn't it correct that the EPA in their
comment to the Office of Management and Budget previously
opposed these DOD proposals to change the Solid Waste Disposal
Act and Superfund Act and one of the reasons was because it
eliminates the eminent and substantial endangerment authority
of the Solid Waste Disposal Act for military munitions on
operational ranges.
Ms. Horinko. First of all, I would never comment on the
interagency process. There is always a healthy debate that goes
on as there is a healthy debate that goes on in Congress. I
think that is important for government agencies to be able to
debate internally and in a very full and candid way.
But I would point out that we do still retain imminent and
substantial endangerment authority under Superfund. If a
citizen or a State had a concern and thought they couldn't
address it under their own law, they could bring it to our
attention. It is the same threshold that you have to meet under
either statute and we at EPA could take action as warranted.
Ms. Solis. Mr. Chairman, I would like to request unanimous
consent to submit for the record the EPA comments in fiscal
year 2003 and fiscal year 2004 which outlines their definition
according to my line of questioning here and how they
responded.
Mr. Gillmor. Without objection.
[The following was received for the record:]
[relevant excerpts from] epa's comments on dod's fy 04 legislative
proposals to the national defense authorization act
[pg. 6] Proposal No. 115--Readiness and Range Preservation
Initiative
[pg. 6]
EPA's Position on ``2019, Range management and restoration'': EPA
opposes this section. EPA believes the RCRA Military munitions rule,
finalized in 1997, substantially addresses the concerns raised by the
Department. EPA also opposes this section because it eliminates the
ability of a state or other person to request that the President
exercise his authority under 106(a) to address an imminent and
substantial endangerment to the public health or welfare or the
environment. It fails to provide for the rights of states and citizens
to address imminent and substantial endangerment issues at federal
facilities.
[pg. 7, comments]
Exempting used or fired munitions on operational ranges from the
definition of solid waste, would, among other things, prevent the
Agency from exercising its authority to order the abatement of an
imminent and substantial endangerment of health or the environment
caused by the handling of ``solid waste,'' when the Agency determines
that such a condition exists on an operational range. In addition,
section 2019, would limit the exercise of the same authorities by
states and citizens.
In addition to eliminating the Agency's authority to order
corrective action and the authority of states, it would eliminate the
Agency's authority to abate an imminent or substantial endangerment
without providing an equally strong and unambiguous authority to act to
redress such conditions when they are found to exist on operational
ranges.
Ms. Solis. And, last, this is for Brigadier General Weber.
Perchlorate, as you know, is a component of a rocket fuel that
has been connected to thyroid cancer. It is my understanding
that it is the military's intent to include perchlorate
contamination in the scope of these exemptions. Can you please
site exact instances where preventive monitoring of ground
water and soil has impeded military training in California?
Mr. Weber. Congresswoman, I do not believe that we have any
restrictions or any imposition restrictions in the State of
California due to perchlorate and limits on operations. The two
places that we limited our operations because of perchlorate
are Aberdeen Proving Grounds in Maryland and also the
Massachusetts Military Reservation in Massachusetts.
Ms. Solis. Thank you.
Mr. Gillmor. Thank you, gentlelady. The Chair recognizes
the chairman of the full committee, Mr. Barton.
Chairman Barton. Thank you, Mr. Chairman. Before I ask my
questions, I want to recognize two distinguished guests in the
audience. We have former Congressman Pete Garron from Fort
Worth, Texas, who is now an assistant to the Secretary of
Defense. We are always delighted to have him.
We also have a former counselor of this committee, Charles
Ingebretson, who is now an Assistant Secretary for Legislative
Affairs at the EPA and we are glad to have him back. We are
used to having him up here instead of out there.
I want to point out that all of these proposals that the
Department of Defense has been posturing to us include only
training and operations that relate to combat and the adequate
and realistic testing of military equipment vehicles, weapons,
and sensors for the proper operation and suitability for combat
use. None of these proposals, as I understand it, deal with
routine operation of an installation of an itself. Is that
right, Mr. DuBois?
Mr. DuBois. Yes, Mr. Chairman. That is precisely the case.
Chairman Barton. So we are not talking about exempting DOD
facilities from their routine operations. We are talking about
some very targeted specific exemptions for certain laws that
deal specifically with training and operations that relate to
combat and the readiness thereof.
Mr. DuBois. That is correct.
Chairman Barton. I want to specifically relate it to the
Clean Air Act because if a reserve squadron is training to be
deployed overseas to Iraq or Afghanistan, is the takeoff and
landing of those aircraft for their training exercise, is that
an example of an activity that would be exempted from a State
implementation plan if those takeoffs and landings were related
to training exercises to prepare them to go to Iraq or
Afghanistan or for combat operations?
Mr. DuBois. That is correct, Mr. Chairman.
Chairman Barton. That is correct. Okay. Now, I want to ask
Mr. Holmstead, who is my good friend with the EPA for air
quality issues, the Department of Defense proposal that deals
with the Clean Air Act conformity. Given a military
installation that is conducting training exercises preparing
aircraft for deployment for combat operations to give them 3
years to conform with the specific State implementation plan.
If that particular base is in a nonattainment area is the EPA
supportive of that proposal?
Mr. Holmstead. We absolutely are. I am not familiar with
all the other statutes but under the Clean Air Act this is not
an exemption in any way. What it simply does is let the
military move forward in that case with the training exercise
and then they would have 3 years essentially to offset those
emissions. It would just give them a little extra time so they
are not held up in the meantime. We think that this strikes the
right balance between preserving air quality and also
preserving the military's ability to perform needed training
exercises.
Chairman Barton. Under the existing Clean Air Act and the
citizen lawsuit provision of the Clean Air Act, is it
theoretically possible that a litigant, a citizen, an
environmental group, any person who is standing in court could
go to court and request an injunction to prohibit the
Department of Defense from conducting such training operations
because of the new 8-hour standard that was promulgated last
week, the regulations for that, that lowers that standard from
120 to 80 parts per billion?
If a litigant went into court and said these operations are
not going to be in compliance with that, would such a lawsuit
have standing in court under the current Clean Air Act?
Mr. Holmstead. The answer is yes and that is one of the
concerns that I think you heard Mr. Cohen talk about. We
believe that the relationship among States, EPA and local
governments would be such that at the government or agency
level no one would stand in the way of that. However, there is
a concern about activist groups or individuals who could seek
to get into court to try to prohibit that sort of activity. So
it really, I think, is the concern about litigation from
individuals.
Chairman Barton. When former Chairman Dingell was here, he
asked Mr. DuBois and Mr. Cohen if there were examples of actual
lawsuits that had been filed and things like this. But it is a
fact that numerous environmental groups have threatened
lawsuits almost routinely on Clean Air Act potential, or at
least alleged Clean Air Act violations around the country to
force some sort of out-of-court settlement. Is that not true,
Mr. Holmstead?
Mr. Holmstead. I know that we were threatened with lawsuits
over----
Chairman Barton. I know of one that is being threatened in
the Dallas Fort Worth area right now.
Mr. Holmstead. Mr. Cohen may know of others but I do know
that it is a pretty common way of proceeding in these sorts of
cases.
Chairman Barton. My time has expired. Thank you, Mr.
Chairman.
Mr. Gillmor. Thank you, Mr. Chairman. The gentleman from
Maine.
Mr. Allen. Thank you, Mr. Chairman. Mr. Holmstead, in EPA's
testimony it is stated that DOD would be given 3 years to
ensure that its actions are consistent with the States given
State implementation plan. The administration believes this
provision effectively addresses the military's readiness
concerns while ensuring timely compliance with air quality
standards.
When I look at the proposal in the section entitled Air
Quality Plans and Range Management, Section A says,
``Conformity with the Clean Air Act,'' and that is the section
that has this 3-year provision. There are all sorts of
questions about whether the 3-year provision will be renewed
over and over again but that is the section that has the 3-year
provision.
I don't see any 3-year provision in Subsections B, C, D,
and E which relate to EPA approval and compliance with ozone,
carbon monoxide, and PM10 standards. It seems to me
that these other provisions, at least in this text that we have
got before us, all apply permanently. They are not subject to
the 3-year limitation in Subsection A. Can you comment?
Mr. Holmstead. That is certainly not the intent of the
legislation, nor do we read it that way. We believe it is
essentially a period during which the base would have to come
into compliance and once that period is up, then----
Mr. Allen. So you wouldn't object to changing the language
so that it is crystal clear that the 3-year limitation applies
to those other sections?
Mr. Holmstead. I think we can work with you on that.
Mr. Allen. Thank you. Ms. Horinko, when Administrator
Whitman was ending her term, she wrote to members of this
committee to assure us the work in developing the mercury MACT
rule, the maximum achievable control technology rule, is
continuing even though some of the analyses would be delayed.
In her correspondence to us she said that there would be a
limited number of analyses based on those scenarios that are
believed to represent viable alternatives for mercury MACT
standard. This is really about that standard. We don't have you
here so often so I wanted to ask this question.
She thought that the modeling would be done after she left.
The current Administrator Levitt now says that the process is
not complete. That is the process with respect to the
development of a mercury MACT standard. So you were the Acting
Administrator between Ms. Whitman and Mr. Levitt.
It seems to me it was your responsibility to ensure that
the EPA stayed on track to propose a legal and defensible MACT
standard under Section 112 of the Clean Air Act but it didn't
happen. My question is when was the decision made to cancel the
IPM modeling of a variety of different mercury MACT standards
and cut the technical experts out of that process.
The New York Times reported that on July 14, 2003, that the
IPM modeling was delayed immediately following a meeting
between Mr. Holmstead and people at the White House. My
question to you, Ms. Horinko, is were you involved in the
decision not to proceed with a variety of different analyses of
the proposed mercury MACT standard? If you were, when were you
involved in it?
Ms. Horinko. I will say no and then pass this over to Jeff.
No, I was not involved.
Mr. Allen. Mr. Holmstead, who was?
Mr. Holmstead. The commitment that Governor Whitman made in
her letter to this committee was absolutely fulfilled by EPA.
What she was very careful to say as you read in that letter is
that if we would be analyzing viable alternatives for producing
mercury emissions and that is what----
Mr. Allen. But isn't it a fact, Mr. Holmstead that the
alternatives you analyzed, two of them were both simply
consistent. Different approaches to get to the same goal,
namely the Clear Skies Act. What you didn't do was do any
modeling that was of the kind requested by the stakeholder
group. Basically you didn't get----
Mr. Holmstead. We were very careful. The big issue here,
sort of the fallacy of all of this and, again, as far as I know
the military is not a big emitter of mercury. But, if I can
just take a second to answer this question. What this
stakeholder group asked us to do would have been scientifically
indefensible with the model that we had because as we learned
about the model, it was designed to look at longer scenarios.
What they were asking us to use that model to do was to
look at something that had to apply in 3 years. So, it was not
defensible from a scientific perspective to use that model to
analyze those outcomes.
Mr. Allen. But sure, Mr. Holmstead, with all the staff and
all the talent you have got at that meeting, you could have
developed other scenarios that were tougher than the one you
came up with.
Mr. Gillmor. The gentleman's time has expired. I would also
point that that the line of questioning is frankly not relative
to the--you are talking about mercury MACT standards which are
not a part of the DOD proposals.
Mr. Allen. Mr. Chairman, I take the point but Mr. Holmstead
has not come back since that July meeting for further
examination of this particular point and I wanted to make sure
that since we are talking about the EPA's management of these
Clean Air Act rules and regulations. It does seem to me what
they are doing on Clean Air generally does have some
application but I take the point. My time has expired. I thank
you for your patience.
Mr. Gillmor. You have to get them when you can get them.
The gentleman from Idaho.
Mr. Otter. Thank you, Mr. Chairman. Mr. Chairman, I am glad
that I didn't use my time up in my opening statement because I
think there are an awful lot of things here that we need to
clarify. I would like to start with Mr. Cohen who I think is
the legal representative for this group that is sitting at the
table.
The ranking member made much to do about the fact that no
States have you under siege at this point. No agencies have you
under siege at this point in time. Could they?
Mr. Cohen. Sir, we are concerned about the potential for a
hostile regulatory environment.
Mr. Otter. I understand that. The way the law is today
relative to the regulations and the noncodification of those
regulations which do not give you legal relief, could they
bring a suit?
Mr. Cohen. Sir, yes.
Mr. Otter. Okay. The fact that they haven't means that the
DOD has done a very good job of working with--is prima facie
evidence that the DOD has done a very good job of working with
the States and working with the agencies and that is why you
don't have a lot of legal things pending today.
Mr. Cohen. Yes, sir. And it has been a two-way street. We
have gotten good support from these State and Federal laws.
Mr. Otter. Well, I want to remind us all here that we are a
government of laws and not a government of appended. Just the
fact that we have in this administration people who are willing
to work together because they recognize that the defense of
this country is our highest priority as the constitution pretty
well outlines. They are working together and we are moving
forward. That is why there isn't the legal problems that could
otherwise be engaged.
Are there any laws today or without these laws today are
there military operations going on in the theater of Iraq and
Afghanistan today that should you need to change military
operations, mil ops, and train for them, how long would it take
you to come home, come back to the United States? Say, we need
to train for something that has been going on in Iraq in order
to deploy the next group of freedom fighters. We need to deploy
another group to Afghanistan but we need to set up that
training first in Idaho. How long would it take you in order to
get permission under today's rules and regulations in order to
save lives, in order to make our fighting force an effective
force by that training? How long would it take you to
accomplish that?
Mr. Cohen. Sir, I think today with the good understanding
we have with the regulators it would take us no time at all.
Under the legal paradigm which says that test and training is
``waste management,'' it could take a very long time.
Mr. Otter. How long?
Mr. Cohen. To work through the regulatory process with a
State or Federal regulator it could take any amount of time,
sir. It is just something that we think is unnecessary and
highly undesirable and risky.
Mr. Otter. General.
Mr. Weber. I have no grounds for the legal basis. In terms
of training it wouldn't take us too much time to spin some
element that we need to in Idaho to help the training aspects
of it. It is the regulatory piece that would potentially
constrain us.
Mr. Otter. That is exactly my point. If you find out
because we are not fighting my father's war here or my
grandfather's war here. We are fighting a whole new war. As the
Chairman pointed out in his opening remarks, they don't have a
capital that we can bomb. They don't have a uniformed military
force that we can just go and conquer. This is an all together
different war and it requires different kinds of military
operations as we are seeing right now in Iraq.
I know the kind of training that I went through as an Army
Cav in the 116th Army Cav between 1968 and 1973. We trade
pretty much for the same stuff. We knew what the theater was.
We knew it was Vietnam. We had a pretty good idea that wasn't
going to change. Fortunately for us it didn't. Could active
anti-war activists indeed bring environmental lawsuits? In
other words, they are against the war in Iraq. We certainly
have a group of those people. People are against the war in
Afghanistan. Could they then bring lawsuits under this to delay
the training operations?
Mr. Cohen. Sir, that is our concern right now. Not
suggesting you have a motive or the people involved but that
legal theory is just sort of lying out there for anyone to use
for whatever needs they might have.
Mr. Otter. I see. In my other life I was both a businessman
as well as a member of the guard. I know that as a businessman
that employed about 12,000 employees, as a lieutenant Governor
in the State of Idaho which had to deal with an awful lot of
Federal rules and regulations, but also as a guard I recognize
that there were a lot of rules and regulations that the
military was exempt from that business was not, nor was the
States. Let me refer to some of the labor laws, especially
under OSHA, perhaps some of the military code of justice as
opposed to the local law enforcement and the State laws.
Have you had any major problems? Are you aware of any major
problems that you have had with either the Labor Department or
the Justice Department because you have been exempt from the
State laws? And because you have been exempt from those laws
that now seem to be creeping into the discussion here, that
because you would be exempt from certain laws codified under
the present working operations that there would be these major
problems?
Mr. Cohen. Sir, I am not although it is not my area and I
should probably take that back.
Mr. Otter. I say again, I am aware that there were many
labor laws but I don't ever recall there being a lawsuit
between the State branch of labor law enforcement in the State.
It is not unusual for the military to be exempt from some of
the State laws. After all, this is one of the legitimate
Federal requirements as we outlined earlier that the
constitution dictates.
Mr. Cohen. Yes, it does.
Mr. Otter. Let me just close this by asking one final
question. That has to do with the present codification. It is
my understanding that there is not a lot of difference between
the interagency government combined group, the rules and
regulations that they came up with since 1997 in order to allow
the military expeditious permission in order to engage in
certain training operations. I do not have a problem with
environmental lawsuits. Is there a major difference between
those regulations that you have been operating under since 1997
and what you are asking now to codify? Is there a major
difference between those two?
Mr. Cohen. No, sir.
Mr. Otter. With one exception. It gives you legal relief,
right?
Mr. Cohen. Well, yes, that is right. It gives us protection
against the lawsuit that the regulation cannot.
Mr. Otter. So in essence all we are asking to do here is to
be allowed to go forward with the training of our troops and
the defense of our Nation without a lot of harassing lawsuits.
Mr. Cohen. Yes, sir.
Mr. Otter. Thank you. Thank you, Mr. Chairman. I yield back
my 3 seconds.
Mr. Gillmor. The gentleman yields back 3 seconds. I want to
go to Ms. Capps now but let me also announce we have five votes
on the floor. That is going to take over an hour. I want to get
through as many people asking questions now and if we can, then
I will ask the members who haven't had a chance to ask
questions if they would be willing to submit them in writing.
If they are willing to do so, then we can dismiss this panel,
come back and start with the second one. If members do want to
verbally ask their questions, then we will have to ask you to
hang around.
Ms. Capps.
Ms. Capps. Thank you, Mr. Chairman. Ms. Horinko, I would
like to speak with you and bring up again Fort Richardson in
Alaska which we know is a Superfund national priority list
site. EPA used the normal Superfund process of remedial
investigation and feasibility study followed by a record of
decision to successfully remediate white phosphorous that was
killing thousands of migratory ducks on Eagle River which is an
operational range. Did the EPA abuse its authority in this
case?
Ms. Horinko. No. I think EPA worked in a collaborative
fashion with the Department of Defense.
Ms. Capps. Excellent. Now, if the Pentagon is changed to
the definition of release and Superfund were adopted, EPA would
not be able to do this cooperative action and use its normal
Section 104 authorities to clean up a release or substantial
threat of a release like it did so successfully in Fort
Richardson. If you agree that the EPA did not abuse its
authority, what is the public policy rationale for changing the
normal Superfund process?
Ms. Horinko. My colleagues at DOD can explain this better
than me. I was not involved in this part of the cleanup but
there were other lawsuits filed surrounding Fort Richardson and
my understanding is that DOD desires to put this legislation
forward----
Ms. Capps. Excuse me. I did want to keep this little part
to the EPA and I am going to ask Mr. DuBois another kind of
question. The Pentagon's proposal would require that the EPA
issue an abatement order to DOD under Section 106 and meet the
higher standard of proof. We know that in almost 20 years the
EPA has never used a unilateral abatement order to the DOD
under Superfund.
This proposal would also require EPA to obtain the
concurrence of the Justice Department before issuing DOD this
order. It appears EPA's inspection and sampling authorities
would be eliminated from military munitions and constituents on
an operational range and EPA would never be able to obtain
information to support an abatement order for a site like Eagle
Flats.
But I do want to turn in my remaining time to Mr. DuBois.
Mr. DuBois, the GAO report states that encroachment was
reported as having affected some training range capabilities.
It goes on to state, ``Most encroachment issues are caused by
population growth and urban development.'' The report sites
several specific examples where sprawl and the resulting land
use conflict between residential use and military training have
caused DOD to alter or suspend training activities.
It doesn't site any instances in which RCRA or CERCLA or
the Clean Air Act have impacted military readiness or were
reported to have done so. You already acknowledged earlier
today that there are no specific instances of RCRA, CERCLA, or
Clean Air Act impairing readiness of a particular group
squadron or battalion.
Now, over the last 20 years States have worked with the DOD
to better protect our military bases from unplanned urban
sprawl which is a threat. How does amending RCRA, CERCLA, and
the Clean Air Act solve the readiness issues specifically
caused by sprawl?
Mr. DuBois. Ms. Capps, my understanding to you is actually
amending a report to focus on some of the issues that you also
heard today. Issues pertaining to Vieques or other potential
litigation are clear examples of where we believe we are. I do
not wish to use Mr. Dingell's word ``siege'' but we have great
concerns for what might happen.
Now, does urban sprawl connect to the issues that we are
dealing with today? I think to some extent it might.
Ms. Capps. Well, that is a might. I am talking about sprawl
as a known serious encroachment issue. You are not talking
about sprawl in this presentation. You are talking about
gutting environmental and public health laws. I do recognize
that sprawl causes DOD to alter some training activities but
amending the kind of laws you are bringing before us today will
do nothing really to resolve readiness issues caused by sprawl.
Mr. DuBois. I question your use of the word sprawl.
Ms. Capps. Well, I am talking about sprawl in this
instance. You really haven't cited any examples where RCRA,
CERCLA, or the Clean Air Act have impacted readiness. I would
suggest that this is not about readiness. It is about control.
If the water supply on a military base is contaminated, really
it needs to be cleaned up.
State enforcement agencies need to be able to identify the
problem and begin to address it. You seem to be suggesting that
States and EPA shouldn't be able to solve this problem. It then
would result that our armed services and their families would
be drinking polluted water. It sounds like you are saying that
it really wouldn't be a problem as long as the range was open
and training could continue. I think this is highly
unacceptable.
I can't believe you would suggest that our brave men and
women who defend our Nation would drink unhealthy and toxic
water. Given a choice, our military would surely pick safe
water for themselves and their family. This proposal takes that
choice away from them. Today I believe we are asking to make
that kind of choice between combat readiness and the protection
of our health. Both are necessary. I see no evidence that
points out that either is mutually opposed to one another. Both
are possible and I yield back to what lack of time I have.
Mr. Benevento. Mr. Chairman, if I might just take a few
seconds. I wish to go on record as categorically rejecting Ms.
Capps' assertion. We are not here today to ask for any
amendments whatsoever with respect to the Safe Drinking Water
Act. Mr. Chairman, may I address at least a part of that
question, some of the questions that have been raised with
respect to ground and drinking water contamination.
Mr. Gillmor. Oh, yes indeed. You have the biggest picture
in the room. I don't know how I missed you. Please proceed.
Mr. Benevento. Thank you. I think as a practical matter it
will be helpful to the committee to sort of understand what we
have seen in Colorado, at least, with respect to sources of
contamination from historical military operations. My
experience, particularly with drinking water or ground water
and surface water, the source of the contamination does not
come from where the military trained. They come from where they
were doing routine maintenance just like any other facility. It
would be the areas that are not exempted that would cause the
ground and surface water contamination, not the areas that are,
in fact, where they are doing their training. I think that the
focus on where they do their training with respect to being
concerned about water contamination is really misconceived. It
is the areas that are not exempted where they store fuel, where
they fuel up rockets and tanks and what not are the areas where
you find the contamination. Therefore, as a State official I
can tell you I think a lot of the concerns are a bit of a
tempest in a teapot.
Mr. Gillmor. Thank you very much, Mr. Benevento. We have
less than 5 minutes for this vote. I would like to dismiss this
panel if we can. We do have another panel when we come back. I
would like to ask unanimous consent that we dismiss this panel,
that all members be able to submit further questions to the
panel in writing. When we resume we will start with the second
panel. Is there objection to the request?
Mr. Stupak. I would object, Mr. Chairman.
Mr. Gillmor. You want the whole panel to come back?
Mr. Stupak. Well, I would like at least Mr. Dubois and Ms.
Horinko to stay. That is where my questions are going to go.
Mr. Gillmor. Do you have any objection to dismissing the
rest of the panel?
Mr. Gonzalez. In the spirit of trying to find some
compromise, and this is going to sound strange, I would still
like the opportunity to pose my questions in this vein because
they are based on other questions that were posed from members
on the other side and only will make sense in that context.
Not just for, I guess, the advantage of those that are
present here on the committee, but as well as members in the
audience for this interesting debate. If you would allow me to
pose my questions in this vein when we return to any of the
remaining witnesses, as well as addressing the absent witnesses
and I will follow up with a written question. With that
curtesy, I would be happy to----
Mr. Gillmor. We can do that. I think we want to get through
these votes. I would suggest we return at 1:45. We should have
completed the votes at that point and we will conclude with
this panel and then we will move to the second panel. I thank
you all very much.
[Whereupon, off the record at 12:37 p.m. until 1:52 p.m.]
Mr. Hall. Okay. We have come to order. The Chair at this
time recognizes Mr. Stupak for 3 minutes.
Mr. Stupak. Thank you, Mr. Chair. Mr. Dubois and all the
witnesses, thanks for staying so we can get these questions in.
We talk a lot about Deputy Secretary Wolfowitz memorandum of
March 7, 2003, which he asks for, and I am quoting, ``Any
proposed environmental restrictions that you believe threaten
in a substantial way your ability to ensure the military
preparedness of the armed forces for which you are
responsible.''
My question is did the Army, Navy, Air Force, Marines,
Coast Guard submit any information that warrant using the
national security exemption of CERCLA, RCRA, and the Clean Air
Act?
Mr. Cohen. Sir, no service has formally submitted a
proposal in the period since Deputy Secretary Wolfowitz issued
the memorandum.
Mr. Stupak. So no one submitted anything back to you?
Mr. Cohen. That is correct.
Mr. Stupak. My follow-up question was if you would share
with committee members any responses you received in response
to Mr. Wolfowitz memorandum. In other words, there wouldn't be
anything in writing to his memorandum.
Mr. Cohen. That is correct, sir.
Mr. Stupak. So the service didn't feel compelled to seek
these exceptions under CERCLA, RCRA, or the Clean Air Act
underneath that memorandum?
Mr. Cohen. That is correct.
Mr. Stupak. Okay. Mr. DuBois, in listening to this
discussion here today and questions and sitting through the
whole hearing, I get the distinct impression you guys are
looking for like immunity in certain circumstances from these
environmental laws. Is that a fair way to say it? You don't
have any specific cases you can give me. I keep hearing about
Fort Richardson and the threat of a lawsuit and in Vieques
there was a threat. It sounds like you are trying to get
immunity from possible threats of a lawsuit.
Mr. DuBois. Mr. Stupak, I am not a lawyer and I hesitate to
use the term immunity. In fact, I won't. I think it is a fact,
however, that our experience with litigation, litigation with
respect to the Migratory Bird Treaty Act or the Marine Metal
Protection Act, or the Native Species Act, as we have pointed
out, the RCRA issues at Fort Richardson, they have forced
action. They have changed behaviors in parts of the Department
that we feel have impacted negligently our ability to train----
Mr. Stupak. Because of that proposal you want immunity from
these law. Right?
Mr. DuBois. We want careful consideration of the aspects of
the law that pertains to operational ranges.
Mr. Stupak. Why should the military be treated any
differently than General Motors, let us say?
Mr. DuBois. I think that the military is arguably--not
arguably but legally the only organization within the United
States of America which is by law allowed to fire guns and drop
bombs.
Mr. Stupak. Sure. And with that comes responsibilities.
Mr. DuBois. It certainly does.
Mr. Stupak. And from what I am hearing, you can't give me
any examples on how these laws have restricted your ability for
military preparedness.
Mr. DuBois. The laws have been used as we have cited.
Mr. Stupak. But has it hurt military preparedness? Can you
give me a specific example where it has?
Mr. DuBois. We are very ready. There is no question about
that.
Mr. Stupak. You are what?
Mr. DuBois. The United States military is a very ready
force. Readiness is clearly first and foremost an obligation
and responsibility. This is a prospective issue, the threat of
litigation.
Mr. Stupak. Okay. You have no specific examples then. Let
me give you a couple of examples. I am looking at two separate
locations, Maryland, one in Massachusetts where military
munitions have forced the closure of drinking water wells due
to contamination from operational ranges. There is another
example in Iowa where contamination has caused offsite private
drinking wells to close.
There are at least 40 DOD facilities with known
contaminants of ground or surface water in this country. Can
you really sit here today before us and assure us that if these
broad exemptions are granted, our citizens will not be exposed
to further contamination?
Mr. DuBois. We need to only look at the example of the
Massachusetts military reservation on the upper cape and what
we have done there. I went up there on two occasions. In fact,
the second occasion I inaugurated the well that we had dug and
the pipeline that we had built because, you are quite right,
sir, we did find that there was contamination.
Mr. Stupak. In fact, EPA had put out four orders that you
had to go up there and do some work up in Massachusetts. Did
they not?
Mr. DuBois. That is correct.
Mr. Stupak. So it seems when we talk about the
responsibilities, that is our concern here, and we start giving
exceptions. The track record here of 40 DOD facilities, and
even the one in Massachusetts, we have to rely on the EPA to
make sure that things were being properly treated so the
citizens' health was not harmed.
Mr. DuBois. We are not here to amend the Safe Drinking
Water Act.
Mr. Stupak. Which you have exceptions to certain parts of
it.
Mr. DuBois. No, sir.
Mr. Stupak. Not Safe Drinking, RCRA, CERCLA. CERCLA, of
course, takes in water. The Clean Air Act. That is the
pushback.
Ms. Horinko, I said I had a question for you because I am
concerned. EPA recently announced that certain areas around the
country were not meeting the 8-hour ozone attainment standard.
Clearly 25 counties in Michigan are not meeting EPA standards
and will now be considered nonattainment zones. How do we
justify these exemptions when if enacted they would allow DOD
to really worsen the air quality of Michigan with counties
already struggling to deal with polluted air?
Ms. Horinko. Congressman, I will defer to my colleague,
Jeff Holmstead, who runs the air program.
Mr. Stupak. Sure.
Mr. Holmstead. There are no exemptions from the Clean Air
Act here.
Mr. Stupak. You are seeking some.
Mr. Holmstead. No, no. The bill that we worked on with the
Department of Defense doesn't have exemptions. It has a lightly
modified set of regulations that we think strikes the right
balance between allowing military activities to occur as long
as there is an acknowledgement of the emission impacts and as
long as those emission impacts will be dealt with within a
period of 3 years. We feel as though this does strike the right
balance between achieving our goals of clean air and
maintaining military readiness.
Mr. Stupak. But my counties in Michigan, if 25 of them are
underneath this EPA nonattainment zone while your military
operations are firing shells and things like that, that would
only add to that.
Mr. Holmstead. I am not aware of any areas where military
activities, training activities are of significant air
pollution concern. They are part of a much broader mix. We have
a national plan that is looking at power plants and diesel
engines and many, many types of sources. We do think it is
important for military operations to be one of those types of
sources.
Again, we are not exempting those at all. One of the big
concerns that people generally have about the Clean Air Act is
that sort of permitting requirements and the delays. I think we
agree that there is a concern. That if there is a need to move
a number of planes to a new location for training exercise,
that they shouldn't essentially need to go through a long
permitting process. We would let them go ahead and make the
decision that they need for military readiness as long as they
report those emissions beforehand and work with EPA and the
States within 3 years to offset those emissions.
Mr. Stupak. Right, but for those 25 counties how do we
justify giving the exception for the military because, as you
just said, there are aircraft taking on and off. You have
emissions issues there that has to be approved. How do I
justify to those 25 counties if we allow DOD to go with that
exception? DOD would probably worsen the air quality in
Michigan counties already struggling with air pollution.
Mr. Holmstead. The need to plan for air quality improvement
is an ongoing thing that the States work out with many, many
different sources of air pollution. This change in the law
would have a very modest impact on that. The way this is
carefully written wouldn't affect their ability to meet the
standard or wouldn't affect the possibility of the kind of
sanctions that they would otherwise face. We try to very
carefully strike the right balance here.
Mr. Stupak. The Boy Scouts are actually having a jamboree
at Fort Hill in Virginia. That is an operational range. Right?
Mr. Waxman. Mr. Stupak, I don't know if you still have more
time but I wanted to pursue that issue that you were just
questioning about.
Mr. Stupak. Sure. Chairman, is my time up?
Mr. Hall. Yes.
Mr. Stupak. I think you are next.
Mr. Hall. Go ahead, Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman. I just want to follow
further along on the air quality issues. I want to start off by
saying this is interesting that EPA a year ago testified when
Christine Whitman came before the Senate she was not aware of
any particular area where environmental protection regulations
were preventing the desired training.
She did not believe there was a training session anywhere
in the country that is being held up or not taking place
because of environmental protection regulations. Today we are
having EPA testify in favor of this effort to weaken the
environmental protections for military families and local
communities in which they live. The EPA is now claiming the
public health will adequately be taken into account.
I want to pursue that with you, Mr. Holmstead, with regard
to the Clean Air Act. The language of this proposal says ensure
military readiness activities conform with the requirements of
Section 176(c) within 3 years of the date new activities begin.
That sounds to me like there is a 3-year period for which they
don't have to comply, the Federal Government does not have to
comply with the State implementation plan. Is that right?
Mr. Holmstead. No, that is not quite right. The distinction
is the way the law works today. If the military wants to move a
new squadron, and I am struggling for the right terms here, but
a new group of planes to a new base for military training
exercises, before they can do that, they would have to get it
changed to the State implementation----
Mr. Waxman. Just a minute, Mr. Holmstead. Let me pursue
this because I have a very limited period of time.
Mr. Holmstead. Yes.
Mr. Waxman. Right now the law 176(c) says that the Federal
Government has to comply with the State implementation plan.
You are suggesting they would have to get a change in there.
This language says they don't have to read that as I read it
within a 3-year period. Now, my first question is what types of
public health impacts can we expect if there is going to be
this increased air pollution for that 3-year period?
Mr. Holmstead. In the case, for instance, as I think you
are well aware, and certainly in the State of California is
probably the biggest issue, what it would mean is as part of
this inventory of thousands and thousands of tons of
NOX and VOCs for a short period of time----
Mr. Waxman. Short being up to 3 years?
Mr. Holmstead. Up to 3 years.
Mr. Waxman. So within that 3-year period there can be a lot
more air pollution.
Mr. Holmstead. No. We looked at this issue and I think our
general view was it would be a barely perceptible issue.
Mr. Waxman. I know you don't think it is perceptible but a
lot of people have asthma attacks or premature mortality or
other respiratory ailments. Some people do feel that is a
problem. As I read it, this would allow DOD to receive a 3-year
waiver for certain activities complying with the State
implementations of the Clean Air Act. Is there any reason that
a facility cannot have successive 3-year periods granted to
them?
Mr. Holmstead. That is not the intent of the statute at
all.
Mr. Waxman. But the statute doesn't prohibit it.
Mr. Holmstead. No. I think we already talked about that
issue earlier.
Mr. Waxman. But you would like to have a limitation to one
3-year period only?
Mr. Holmstead. That is certainly the intent of what we are
talking about, yes.
Mr. Waxman. Is there any limit to the amount of increased
air pollution that can result from one of these waivers? It may
not be a small source. It can be a huge source of pollution. Is
there any limit?
Mr. Holmstead. Mr. Waxman, there are practical limits. I
would just note that Carol Browner, the Director of----
Mr. Waxman. Excuse me. I don't know what practical means.
The statute says they don't have to meet with the requirements.
Mr. Hall. Let me answer, Mr. Waxman.
Mr. Waxman. Mr. Chairman, I will pursue my questions in my
own way.
Mr. Hall. No, you will----
Mr. Waxman. The statute that you are proposing says that
they don't have to comply. If they don't have to comply, that
can be for a large amount of pollution or it could be for a
small amount of pollution. Where does it say anything
different?
Mr. Holmstead. Let me just point out that the Defense
Department sources are a very, very small part of the overall
pollution issue. As a legal matter, they could be allowed to
emit huge amounts of pollution but they don't today and we are
not aware of any instance where this is going to be a
significant issue. Again, that is not just my view. That is
what Carol Browner said a few years ago when she was head of
the EPA.
Mr. Waxman. So it is not a significant issue. They are up
to 3 years. You would limit it to one 3-year period. Right?
Mr. Holmstead. Yes.
Mr. Waxman. And then if a State feels it is a large amount
and you think it is a small amount, the law says it doesn't
make any difference what they say. It is up to EPA. Correct?
Mr. Holmstead. As you well know, States have a great deal
of flexibility in terms of managing their own air quality.
Mr. Waxman. Does that mean in their flexibility they would
have to turn to other industries to make up the difference?
Mr. Holmstead. That is what States are doing today. There
are many, many sources----
Mr. Waxman. But doesn't that require an implementation plan
change? As I read this proposal----
Mr. Holmstead. It doesn't require an implementation plan
change. States can do many things of their own volition that
have nothing to do with----
Mr. Waxman. The States are letting the military off the
hook for 3 years. They can't without revising their plan say,
``Well, since we are going to have more air pollution, I want
this industry in our State to reduce even more than they
otherwise would have been required to do under the
implementation plan.''
Mr. Holmstead. States can do that. Sure they can.
Mr. Waxman. Without a change in the implementation plan?
Mr. Holmstead. There is no need to change the
implementation plan. The States are always free to do that. In
fact, typically what the State of California does is they
change their local regulations and they do that very quickly.
Then the State implementation plan may be several years behind
that but it is enforceable immediately by the State and local
governments.
Mr. Waxman. I think businesses ought to be on notice that
they may have to pick up the slack.
Mr. Holmstead. No, because the statute basically doesn't
penalize other businesses for that.
Mr. Waxman. Well, doesn't penalize them meaning requiring
them to reduce pollution more?
Mr. Holmstead. The State is free to do that but they are
not required to.
Mr. Waxman. Not required to but the State could?
Mr. Holmstead. The State can always do that.
Mr. Waxman. So businesses ought to be on notice that the
States might do that.
Mr. Chairman, you have been very generous in allowing me to
ask questions.
Mr. Holmstead, I am going to ask for some more responses
for the record but I want to point out that last time you
testified I wrote you a follow-up questions for the record and
it took you 7 months to answer. I think that is a delay that I
find unacceptable so I hope you will commit yourself today to
answer questions for the record on a more timely basis. Would
you?
Mr. Holmstead. I will certainly do my best. Given all the
questions that we get I will try to answer them as quickly as I
can.
Mr. Waxman. Thank you.
Mr. Hall. The gentleman's time has expired. I recognize Mr.
Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I thank my colleague
from California. He just walked out but I would just say it
must have been a very good question. It took a long time and he
is known for probing and is an ardent spokesman.
But I want to continue on his initial line of comments
based on my opening statement real quick. The State SIP, State
implementation plan, in a nonattainment area. If we don't pass
authorization and legislation like this in a BRAC situation
where an air base is in the attainment area right now, as
Chairman Barton said, 50 percent of areas in the country with
large numbers of population are not under the new standard.
If we don't give a 3-year leeway for that facility and that
SIP area within the State to meet the standard, and this is
really, you know, for the military guys too, could that
prohibit the moving of combat airplanes, refueling tankers,
transports into bases throughout this country that are looking
as we come to the approaching BRAC environment?
Mr. Holmstead. I think that is one of the legitimate
concerns that we think DOD has. I think, again, it is all about
sort of the process. Can they quickly make those moves or they
need to wait for a lot of regulatory changes before they can do
that. Our solution here is to say you can go ahead and make
that move and then you have 3 years to offset any of those
emissions. So it is designed to not stand in the way of those
sorts of activities.
Mr. Shimkus. Not only is it time but isn't it an expense of
money because really if the military wanted to pursue rebasing
of facilities, then you would have years of litigation probably
to effect these moves in attainment areas.
Mr. Holmstead. Well, there is always the prospect of a lot
of litigation and that is----
Mr. Shimkus. In this debate there is probably a lot of
litigation. Let me ask for my military friends, we have gauged
this debate on training issues. Does the rebasing of squadrons
fall under the training classification or is that regular
operations and management or not?
Mr. Weber. Sir, speaking only for the Army, I can't respond
to inquiries about squadron relocations, but the training
facility availability, the ranges that we have, and the
maneuver space that we have in any or all of our installations
is a factor and a criteria for how we base and locate
formations. Given that the Army is now standing up more
brigades, we are going to have to base those organizations
throughout the country and other places. Clearly that is a
criteria for selection for where we decide to put those
formations.
Mr. Shimkus. And I was interested in this debate on these
two phrases. This is really a debate about industrial waste
management versus activity on training ranges. Is that really
the debate? And industrial waste management which falls under
Superfund issues and the like which I have dealt with in Quincy
and trying to get liability.
Superfund authorization is being held up because a lot of
the money that goes into Superfund cleanup is going into
litigation and court cost and the like. What I think the public
wants to see is for that money that would go in the Superfund
fund to go to help expedite cleanup. Part of this is kind of a
defensive measure against war, courtroom activities, more delay
which prohibits cleanup in meeting standards. Does anyone want
to comment on that?
Mr. Cohen. I think that is exactly right. I think that the
Defense Department's concern is that the Superfund and RCRA
statutes are fundamentally designed for industrial waste
management paradigm and we don't think that firing on an
operational range is waste management.
Mr. Shimkus. There are some industrial military sites.
Mr. Cohen. Sure.
Mr. Shimkus. This would not affect any of those facilities?
This is just----
Mr. Cohen. Absolutely. In fact, it wouldn't even affect
waste management on a range. Real waste management as opposed
to training.
Mr. Shimkus. My last question. Do the provisions in the
Readiness and Range Preservation Initiative also cover State
and national guard unit facilities?
Mr. Cohen. I believe that they would cover large facilities
at Federal ranges from the use of Federal ranges in training
under Federal command.
Mr. DuBois. Mr. Shimkus, it is similar to the BRAC
situation. If those installations are under the authority,
direction, and control of the Secretary of Defense, the answer
is yes, and some are. However, some are under the authority,
direction, and control of the Governor and solely the Governor,
then they would not.
Mr. Shimkus. I am going to finish by saying I do think
there is concern, Mr. Chairman, that if we proceed with this
route on ranges, and we haven't really defined what type of
ranges; small-arm ranges, artillery ranges. There are a lot of
different ranges in the military that we use.
I do think there is a concern that when you start talking
about sportsmen's ranges, you start talking about ranges for
the State police, local police forces, that there is a
precedent being set that if we allow these laws to start
closing down ranges, that could then affect municipal police
officers, State police officers, and trap and shooting folks
who like to recreate as sportsmen. I am very concerned about
that. I applaud the efforts and I yield back my time.
Mr. Gillmor. The gentleman yields back and the gentleman
from Texas has been waiting extraordinarily patiently and we
now recognize the gentleman from Texas.
Mr. Gonzalez. Thank you very much, Mr. Chairman. The first
observation, there is no one on this committee or this Congress
that doesn't want the best armed services we have out there. We
are all going to be there for you. We may have a difference of
opinion on certain things. I am just afraid that many times if
there is any objection to any proposal that one has
characterized as not being supportive of our men in women in
uniform, that is just not true.
But you do have the burden to come here before us today
because you are asking that it all be changed and that you be
exempt from certain regulatory schemes. It may be operational
ranges. Maybe we need to really try to figure out how precise
and how narrow the focus is. It will make more sense to many
members of the committee. But if you take all the testimony
today, you will have not made the least bit, much less a
compelling case that the law needs to be changed.
You haven't indicated specific instances that have placed
readiness training in jeopardy because of these regulations. At
least, I haven't really heard direct testimony on that or a
long list. You may have that and I would wish that you would
provide each member with a list of all those readiness
activities and training that have been jeopardized that has
come to fruition and is not prospective in nature where they
can fear someone may be filing a lawsuit.
My understanding is that there is only one civilian lawsuit
in the entire country pending and that is in Alaska and this is
the Alaska Community Action on Toxics, et al. versus the United
States Department of the Army, et al. I would ask the unanimous
consent at this time, Mr. Chairman, that this particular joint
motion by the attorneys representing both sides of the
litigation, the proposal order submitted to the Federal judge,
be admitted.
Mr. Gillmor. Without objection.
[The material appears at the end of the hearing.]
Mr. Gonzalez. Thank you. The parties here are asking this
case be stayed until May because they are so close to
resolution. In other words, they are going to work it out
themselves, but this is the lawsuit that I am aware of.
You also indicated that there is potential for abuse. There
is always potential for abuse. Does that mean you do away with
the remedy or the regulatory scheme? You can't do that. The
next logical step is just to do away with the courts if they
are such an inconvenience and impediment to whatever activity
one is engaged in doing at any certain time.
These are basic principles. These are the very reasons that
we are in Iraq. This is what we are trying to import to Iraq is
a democratic system that includes a judiciary for overview and
balance and separation of powers. I guess that is what upsets
me. We have lost focus. When I had my opening statement, I
always waive opening statements, I simply said let us stay
focused. You tell us the reason that a change is required. I
haven't really heard it. I am still open to that.
I heard, Mr. DuBois, you indicated, and I am going to
paraphrase, that the health and environmental laws or
regulatory scheme were never intended to apply to military
activities. I wouldn't want you to respond if you believe that
because then it makes your testimony somewhat suspicious
because then you start off from a position where you think they
should have never come under this umbrella or regulatory
scheme.
The next thing with Mr. Cohen sitting next to you, you have
already told us that there is an alternative and it is
Presidential exemption power. And if my colleague was
indicating about operational ranges and such, couldn't you
narrow it where they could be a Presidential exemption that
wouldn't be subject to that kind that President Carter
underwent? I have no idea why it has been so difficult.
Those are my questions to Mr. DuBois and Mr. Cohen.
To Ms. Horinko, and of course Mr. Holmstead is free to
chime in on this thing, the way I read this it says this
proposal will amend the definition of release under CERCLA
thereby alternating the statutory disposal and cleanup
environments to exclude military munitions, unexploded
ordinance, and materials related to these items as long as
these materials have been placed on a military range consistent
with their intended usage.
Does that mean that you are in the period of activity of
exemption and anything goes? You have jurisdiction, you do have
overview but only after the fact, after the activity because by
then the problem has been created and to remediate obviously is
a real problem at a certain point because it can pose certain
health hazards. I would be asking you that. I think that Mr.
Benevento may still be in the other room. Can you hear me, sir?
I know it is a lonely existence over there.
Mr. Benevento. Yes.
Mr. Gonzalez. My understand, and because you are here
representing the State of Colorado, or at least the review the
State gave it, and I have a heading here in our briefing papers
that says, ``Right to remove Clean Air Act and Safe Drinking
Water Act cases to Federal court.'' Would agree that it is
necessary to remove any such lawsuits to Federal court away
from the State courts? Those are my questions to the panel and
I do thank you for your time and the tremendous inconvenience
that resulted as a result of my votes.
Mr. DuBois. Mr. Chairman.
Mr. Gillmor. Yes, Mr. Dubois.
Mr. DuBois. I don't know the protocol here but----
Mr. Gillmor. The protocol is we are out of time for
questions but we want to be as open and flexible as we can. If
there are some brief comments you can make in respect to the
questions Congressman Gonzalez raised, please do so but we are
technically out of time.
Mr. DuBois. I just want to make one final comment and it is
in response to Congressman Gonzalez. In no way, shape, or form
does the Department of Defense wish to exempt itself from
issues pertaining to pollution of the environment. We have an
obligation for those families living on military installations,
as well as those who live in the surrounding communities.
Nothing that I have said or any of my colleagues, I hope, would
be interpreted to the contrary.
The other brief issue is when you say are we asking for
exemptions, I think as Mr. Cohen and others have said, much of
what we have asked for is really a codification of what already
exists, what historically we have been exempt from in terms of
our operational training ranges. But it is by this litigation
and the threat of cross-litigation that we believe the only
recourse we have is to ask the Congress for its assistance.
Thank you, Mr. Chairman.
Mr. Gillmor. Ms. Horinko.
Ms. Horinko. Just for a minute. We have plenty of authority
in EPA still at these operating ranges even if this legislation
is passed. We have authority under the Safe Drinking Water Act
to protect sole source aquifers which we have used successfully
at Massachusetts Military Reservation. We have authority under
CERCLA to address an imminent and substantial endangerment. We
have authority under CERCLA and RCRA to oversee any activity
with respect to these munitions or their constituents that
constitute disposal, landfill, waste management, anything other
than shooting a gun. And we have authority over all the other
activities that go on in these spaces with respect to chemical
management, solvents, degreasers, fuel, and things of that
nature. We have lots of other tools in our toolbox at EPA to
make sure these ranges are properly managed.
Mr. Gillmor. Any further comments? If not, that will
conclude this panel. I want to thank all of the panelists and
you also, Mr. Benevento, for your patience and all the
panelists here. I appreciate your input. Thank you.
The Chair will call up the second panel.
We will begin our witnesses. I want to start at the request
of Congressman Burr of North Carolina who advises that Jerry
Ensminger has to be leaving so we want to take you first for
your testimony. Then we will take everybody else's testimony.
After that we are going to questions. It is up to you, Mr.
Ensminger, if you want to stay for the question period or leave
after your presentation.
Mr. Ensminger.
STATEMENTS OF JERRY ENSMINGER, CAMP LEJEUNE; DAN MILLER, FIRST
ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES AND ENVIRONMENTAL
SECTION, COLORADO DEPARTMENT OF LAW; STEVEN BROWN, EXECUTIVE
DIRECTOR, ENVIRONMENTAL COMMISSIONERS OF THE STATES; RONALD
GASTELUM, PRESIDENT AND CEO, METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA; S. WILLIAM BECKER, EXECUTIVE DIRECTOR,
STATE AND TERRITORIAL AIR POLLUTION PROGRAM, ADMINISTRATORS/
ASSOCIATION OF LOCAL AIR POLLUTION CONTROL OFFICIALS; SYLVIA K.
LOWRANCE, THE NATIONAL ENVIRONMENTAL TRUST, ACCOMPANIED BY
DAVID BARON, EARTH JUSTICE LEGAL DEFENSE FUND; AND JOHN C.
KUNICH, ASSOCIATE PROFESSOR OF LAW, ROGER WILLIAMS UNIVERSITY
SCHOOL OF LAW
Mr. Ensminger. Good afternoon. First, I would like to say
that I am greatly honored and appreciative to the Chairman and
the members of this committee for affording me this opportunity
to testify before you.
My name is Jerry Ensminger. I spent 24\1/2\ years serving
my country faithfully in the United States Marine Corps. I am
here to testify for a group of our citizens who are unable to
speak for themselves. They are the growing list of children who
were conceived while their parents lived on military bases
where their drinking water was contaminated.
Many of these children were born with serious debilitating
birth defects or with defects serious enough to kill them. Many
more of these children who were exposed while in utero that
were born seemingly normal later developed childhood cancers.
Such was the case with my daughter, Jane.
Janie was conceived while her mother and I lived in
military housing at Marine Corps Base Camp Lejeune, North
Carolina. When Jane was 6 years old she was diagnosed with
acute lymphocytic leukemia, or ALL. Beginning in 1999 the
Agency for Toxic Substances and Disease Registry, or ATSDR,
conducted an adverse pregnancy outcome survey of women who were
pregnant and living on base between the years of 1968 through
1985.
The ATSDR survey located 12,598 out of an estimated 16,500
and they released their findings in a report on 18 July 2003.
ATSDR identified 33 neural tube defects, 41 oral clefts, 22
cases of childhood leukemia, seven cases of childhood lymphoma
for a total of 103 adversely affected children who were exposed
to contaminated drinking water while in utero.
To give you an idea of how Camp Lejeune stacked up against
the rest of our Nation for this same time period, I have
compiled the following statistics. Camp Lejeune was 265 times
higher than the national average for neural tube defects and
15.7 times higher in the childhood cancer rate.
These numbers do not take into consideration the staggering
number of spontaneous abortions suffered by Camp Lejeune women
during this time period. To date no survey or study has been
conducted, nor have any been proposed for the non in utero
children or the adult populations that were exposed while at
Camp Lejeune.
It has since been discovered that the United States Marine
Corps and the Department of the Navy authorities knew that the
drinking water at Camp Lejeune was highly contaminated with
volatile organic chemicals, or VOCs, cleaning solvents. The
most appalling fact is that these authorities knew about this
contamination for nearly 5 years before they took any action to
correct it.
Several different analytical laboratories told Camp Lejeune
officials that they had found high levels of these chemicals in
their drinking water. Mr. Bruce Babson, a chemist at Grainger
laboratories of Raleigh, North Carolina, went to the extreme of
writing a 10 August 1982 letter to the commanding general of
the Marine Corps Base Camp Lejeune.
In his letter Mr. Babson told Camp Lejeune that the high
levels of chemicals that he had found in their finished
drinking water were of more importance from a health standpoint
than what they had initially set their water to be tested for
which was TTHMs. Did military officials take any action?
Absolutely not.
Even though this was the third different analytical
laboratory to tell them they had VOCs in their drinking water,
they went as far as to question the findings by this very
laboratory.
Military officials did not even bother to test their
individual drinking water supply wells until July 1984. This
was the month after the United States Environmental Protection
Agency announced that they were proposing regulatory levels for
the same exact chemicals which had been found in Camp Lejeune's
drinking water for 4 years by that point.
Had the EPA not announced these proposed regulatory levels
for these chemicals, would the military have taken the
necessary action to alleviate them from their drinking water?
The answer to that question is something that none of us can
answer. However, by reviewing the inactivity by the military
prior to the EPA's announcement, it is highly probable that
they would have continued to do what they had done up to that
point, absolutely nothing.
The only reason the United States Marine Corps and
Department of Navy officials can give today for not taking any
action to alleviate these known chemicals in their drinking
water is that there were no enforceable regulatory levels
established for these chemicals.
Recently documents have been discovered that strongly
suggest that the United States Marine Corps and the Department
of the Navy officials provided the ATSDR with incorrect water
system data in hopes of minimizing their findings of adverse
health effects in their studies.
These are only a few examples of why the Department of
Defense does not need immunities from any environmental
regulations. Currently there are also no enforceable maximum
contaminant levels for perchlorates, TNT, RDX, HMX, and white
phosorous in drinking water either. It is quite apparent from
examining Camp Lejeune's situation that the military will not
and cannot be trusted to police themselves.
From my own past experiences it makes me shudder to think
that the military would be granted immunities from any
environmental regulations or the oversight by the Federal and
State agencies that were created for these purposes. To grant
immunities we would be affording the Department of Defense a
license to kill their own personnel and their families in a far
more terrible way than any foreign enemy could ever kill them
with bombs or bullets.
One hundred and forty-one out of the 171 federally operated
sites that now appear on the national priority list for
contamination are military installations. This alone should be
testimony enough for the disregard that the Department of
Defense has for the environment and the welfare of their own
people.
However, if this fact is not enough of a deterrent, perhaps
this next fact will convince you. My daughter, Jane, fought a
courageous battle against her malignancy for nearly 2\1/2\
years. She literally went through hell and all of us that loved
her went through hell with her. The leukemia eventually won
that war. On 24 September 1985, Jane succumbed to her disease.
She was only 9 years old.
No, DOD does not need, nor do they warrant less scrutiny
from environmental agencies. In fact, it is my opinion that
they need stricter oversight. I would like to point out to the
gentleman that is testifying from Colorado that military
munitions contaminants are created in training areas, not in
rear area maintenance sites as he suggested.
This past Monday evening on 19 April 2004 I addressed a
public meeting of the Onslow County Commissioners. Onslow
County is the home of Marine Corps Base Camp Lejeune, North
Carolina. They have entered into an agreement with the United
States Marine Corps to provide potable drinking water to the
citizens of that county.
The Onslow County Commissioners approved this agreement
Monday night with a vote of three for and two against. Without
maximum contaminant levels for munitions contaminants current
being in place, what could possibly be in store for the
citizens of Onslow County? Thank you.
[The prepared statement of Jerry Ensminger follows:]
Prepared Statement of Jerry Ensminger
First, I would like to say that I am greatly honored and
appreciative to the chairman and the members of the House Energy and
Commerce Committee for affording me this opportunity to testify before
them. My name is Jerry Ensminger; I spent 24\1/2\ years serving my
country faithfully in the United States Marine Corps. I am here to
provide testimony for a group of our citizens who are unable to speak
for themselves. They are a growing list of children who were conceived
while their parents lived on military bases where their drinking water
was contaminated. Many of these children were born with serious
debilitating birth defects or with defects serious enough to kill them.
Many more of these children who were exposed while in utero, that were
seemingly normal, later developed childhood cancers. Such was the case
with my daughter Jane. Janey was conceived while her mother and I lived
in military housing at Marine Corps Base, Camp Lejeune, N.C. (MCB,
CLNC). When Jane was 6 year old, she was diagnosed with acute
lymphosytic leukemia (ALL). Beginning in 1999, the Agency for Toxic
Substances and Disease Registry (ATSDR) conducted an Adverse Pregnancy
Outcome survey of women who were pregnant and living on base between
the years of 1968-1985. The ATSDR survey located 12,598 out of an
estimated 16,500 children and they released their findings in a report
on 18 July 2003. ATSDR identified 33 Neural tube defects, 41 Oral
clefts, 22 Childhood leukemia, 7 Childhood lymphoma, for a total of 103
adversely affected children who were exposed to contaminated drinking
water while in utero. To give you an idea of how Camp Lejeune stacked
against the rest of our nation for this same time period, I have
complied the following statistics. Camp Lejeune was 265 times higher
than the national average for Neural Tube defects and 15.7 times higher
in childhood cancer rates. These numbers do not take into consideration
the staggering number of spontaneous abortions suffered by Camp Lejeune
women during this time period. To date, no survey, or study has been
conducted (nor have been proposed) for non in-utero children or adult
populations that were exposed while at Camp Lejeune.
It has since been discovered that United States Marine Corps (USMC)
and Department of the Navy (DoN) authorities knew that the drinking
water at Camp Lejeune was highly contaminated with volatile organic
chemicals (VOCs), cleaning solvents. The most appalling fact is that
these authorities knew about this contamination for nearly 5 years
before they took any action to correct it! Several different analytical
laboratories told Camp Lejeune officials that they had found high
levels of these chemicals in their drinking water. Mr. Bruce A. Babson,
a chemist at Grainger laboratories of Raleigh, N.C. went to the extreme
of writing a 10 August 1982 letter to the Commanding General of Marine
Corps Base, Camp Lejeune, N.C. In his letter, Mr. Babson told Camp
Lejeune that the high levels of chemicals that he had found in their
drinking water were of more importance from a health standpoint than
what they had sent the water to be tested for in the first place
(TTHM's). Did military officials take any action? Absolutely not, even
though this was the 3rd different laboratory to tell them they had
VOC's in their drinking water, they went as far as to question the
findings by this laboratory. Military officials did not bother to test
their individual drinking water supply wells until July 1984. This was
the month after the United States Environmental Protection Agency (EPA)
announced that they were proposing regulatory levels for the same exact
chemicals, which had been found in Camp Lejeune's drinking water for 4
years by this point.
Had the EPA not announced these proposed regulatory levels for
these chemicals would the military have taken the necessary actions to
alleviate them from their drinking water? The answer to that question
is something that none of us can answer. However, by reviewing the
inactivity by the military prior to the EPA's announcement, it is
highly probable that they would have continued to do what they had done
up to that point: ABSOLUTELY NOTHING! The only reasoning that USMC and
DoN officials give for not taking action to alleviate these known
chemicals in their drinking water is that there were no ``enforceable''
regulatory levels established for these chemicals! Recently, documents
have been discovered that strongly suggest that USMC and DoD officials
provided the ATSDR with incorrect water system data in hopes of
minimizing their findings of adverse health effects. These are only a
few examples why the Department of Defense does not need immunities
from any environmental regulations. Currently, there are not any
``enforceable'' Maximum Contaminant Levels (MCL's) established for
Perchlorate, TNT, RDX, HMX, and White Phosphorus in drinking water. It
is quite apparent from examining the Camp Lejeune situation that the
military will not, and cannot be trusted to police themselves. From my
own past experiences, it makes me shudder to think that the military
would be granted immunities from any environmental regulations or the
oversight by the federal and state agencies that were created for these
purposes. To grant these immunities we would be affording the DoD ``a
license to kill'' their personnel and their families in far more
terrible ways than any foreign enemy could do with bombs or bullets!
141 out of the 171 federally operated sites that now appear on the
National Priority List for contamination are military installations.
This alone should be testimony enough for the disregard the DoD has for
the environment and the welfare of their own people. However, if this
fact is not enough of a deterrent, perhaps this next fact will convince
you. My daughter Jane fought a courageous battle against her malignancy
for nearly 2\1/2\ years, she literally went through hell and all of us
who loved her went through hell with her. The leukemia eventually won
the war, on 24 September 1985 Janey succumbed to her disease; she was
only 9 years old. No! DoD does not need, nor do they warrant less
scrutiny from environmental agencies, in fact, it is my opinion that
they need stricter oversight.
Mr. Gillmor. Thank you very much.
Mr. Dan Miller of Colorado.
STATEMENT OF DAN MILLER
Mr. Miller. Thank you, Mr. Chairman, and members of the
committee. My oral and written testimony today is on behalf of
the Attorneys General of Colorado, California, Idaho, Utah, and
Washington. I would also like to submit for the record a letter
signed and dated this past Monday signed by 39 Attorneys
General opposing the DOD's proposed amendments for RCRA,
CERCLA, and the Clean Air Act. There is an omission error that
needs correcting, an inadvertent omission in my written
statement on page 2. The word ``effectively'' needs to be
inserted before the word ``powerless.''
I would like to be clear that the Attorneys General
absolutely support maintaining military readiness. The fact is
that in 3 years DOD has not identified even one single instance
for RCRA, CERCLA, or the Clean Air Act have had any adverse
impact on military ranges whatsoever. There is simply no
factual basis to amend these laws.
I will focus today on the amendments to RCRA and CERCLA.
These amendments would for practical purposes preempt most
States and EPA authority to require the investigation or
cleanup of munitions constituents within the external
boundaries of operation areas and includes the investigation of
cleanup of ground water contaminated with munitions
constituents such as perchlorate and other toxic substances on
over 24 million acres of operational ranges throughout the
U.S., an area equivalent to six States.
Even if munitions contamination threatened to move off-
range and contaminate drinking water supplies, DOD's proposed
amendments would in most cases preempt States from using their
hazardous waste and State Superfund authorities to require DOD
to address the contamination anywhere within these 24 million
acres.
It has become increasingly clear that munitions
contamination of ground water supplies is a real problem.
Nationwide there are at least 40 DOD facilities with known
perchlorate contamination of ground water or surface water.
Perclorite contaminated ground water at operational ranges in
Massachusetts Military Reservation, Aberdeen Proving Grounds,
has forced the closure of municipal drinking water supplies
wells. And, the full extent of munitions contamination is not
yet known.
DOD maintains that States basically have no interest in
whether the ground water underneath military ranges is
contaminated. We disagree. Protecting ground water supplies is
a matter of State's rights. In many States, the ground water is
the property of the State.
In addition to their property interests, the States have a
clear responsibility to protect their water supplies to ensure
the health of their citizens and vitality of their economies.
Parts of the country are in a sustained drought and we simply
cannot afford to sacrifice large areas of ground water to
munitions contamination.
DOD seems to believe that investigating and cleaning up
conditions of contamination on ranges necessarily impacts
readiness. That is simply not the case. There is substantial
flexibility in how we investigate and clean up ground water
contamination. The location and timing of remedial activities
can be changed to accommodate readiness activities.
For example, Colorado Department of Public Health and
Environment worked with range officials at Ft. Carson to
establish some groundwater monitoring wells on an active range
without impacting readiness. We simply installed the wells on a
day when the range was not being used, and we adjusted the
normal sampling period to coincide with range use.
State regulators have worked effectively for decades to
enhance environmental protection at the Department of Defense
and the Department of Energy facilities without compromising
defense considerations. We think that future conflicts are very
unlikely because competing environmental and readiness concerns
can be worked out if both parties have an incentive to do so.
That is why it is important for us to retain our authorities.
If there are cases where these competing concerns cannot be
reconciled, DOD already has the ability under existing law to
obtain exemptions under RCRA and CERCLA. These exemptions are
basically at the discretion of the President.
DOD has argued that its amendments simply codify existing
regulatory policy regarding military munitions. If that were
true, they would be simply unnecessary. But, in fact, these
amendment reverse existing policy. When Congress passed the
Federal Facility Compliance Act in 1992 it directed EPA to
determine when military munitions become hazardous waste for
purposes of RCRA's day-to-day management requirements.
In response, EPA promulgated the munitions rule. All that
says is DOD does not have to get a permit to conduct training
and testing with munitions. However, after they have been used,
these munitions and their constituents are subject to RCRA's
cleanup requirements in appropriate cases. And the munitions
rule does not preempt any State authorities over munitions.
Contrary to the munitions rule DOD's proposed legislation
exempts military munitions from RCRA cleanup requirements,
including munitions constituents and largely preempts States
from regulating them.
Thank you for the opportunity to testify today and I will
be glad to answer any questions.
[The prepared statement of Dan Miller follows:]
Prepared Statement of The Attorneys General of California, Colorado,
Idaho, Utah and Washington
I. Introduction
In February 2004, the Department of Defense (``DOD'') proposed
legislation (the ``Readiness and Range Preservation Initiative'' or
``RRPI'') that would grant it exemptions from the Resource Conservation
and Recovery Act (RCRA), the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), and the Clean Air Act. DOD has
asserted that the amendments are necessary to maintain military
readiness. This is the third successive year that DOD has proposed
similar legislation. Over the past two years, a large number of state
and local government officials and associations voiced strong
opposition to the proposed amendments to RCRA, CERCLA, and the Clean
Air Act.1
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\1\ The National Association of Attorneys General passed a
resolution in March 2003 opposing any proposed amendments that would
impair states' authority to protect the health of their citizens, such
as the 2003 RRPI amendments to RCRA, CERCLA, and the Clean Air Act. The
Environmental Council of the States passed a similar resolution in
April 2003. The Association of Metropolitan Water Agencies, the
American Water Works Association, the National Association of Water
Companies, and the Association of California Water Agencies wrote a
letter in April 2003 opposing the 2003 RRPI's amendments to RCRA and
CERCLA. The national associations of state and local air pollution
control officials wrote a letter in March 2003 opposing the 2003 RRPI's
proposed amendments to the Clean Air Act. The association of state
hazardous waste management officials wrote a letter in May 2003
opposing the 2003 RRPI's proposed amendments to RCRA and CERCLA. And
the National Association of Counties wrote a letter in May 2003
opposing the 2003 RRPI's proposed amendments to RCRA, CERCLA and the
Clean Air Act. These letters and resolutions are attached as Exhibit 1.
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As we have previously emphasized, we absolutely support the need to
maintain military readiness, and to provide our armed forces with
appropriate realistic training to minimize battlefield casualties and
increase their combat effectiveness. There is no question of the
importance of maintaining military readiness.
However, military training activities have caused adverse impacts
on human health and the environment, and resulted in expensive
cleanups. For example, there are currently approximately 129 DOD
facilities on the Superfund National Priorities List. There is
increasing evidence that military training and testing activities on
ranges can contaminate groundwater. To date, 40 DOD installations have
had perchlorate, a constituent of rocket fuel and many military
munitions, detected in their groundwater or surface water. Perchlorate
impacts the thyroid. Other toxic munitions constituents, such as RDX,
TNT, and white phosphorous, have also been found to contaminate
groundwater.
Are there really conflicts between requirements under RCRA, CERCLA,
or the Clean Air Act and military readiness? DOD has not identified any
such conflicts to date, and we are not aware of any. We think that the
likelihood of future conflicts is small. The question, then, is whether
the existing environmental laws allow the military to conduct necessary
activities in a manner that maintains readiness while ensuring
protection of human health and the environment. With respect to RCRA,
CERCLA, and the Clean Air Act, we believe that they do. In our view,
furthering military readiness and ensuring environmental protection are
compatible goals, not mutually exclusive.
Even read in the narrowest possible fashion, the 2004 RRPI would
hamstring state and EPA cleanup authorities at over 24 million acres of
``operational ranges,'' an area the size of Maryland, Massachusetts,
New Jersey, Hawaii, Connecticut and Rhode Island combined. As a
practical matter, environmental regulators would likely be precluded
from using RCRA, CERCLA, and related state authorities to require any
investigation or cleanup of groundwater contamination on these ranges,
even if the contamination had migrated off-range, polluted drinking or
irrigation water supplies, and even if it posed an imminent and
substantial endangerment to human health. And it is likely that DOD's
amendments would be construed more broadly to exempt even more
contamination from state and EPA oversight.
Under the 2004 RRPI, states and EPA would be essentially powerless
to require investigation or cleanup of munitions-related groundwater
contamination beneath an operational range, even if the contamination
had migrated offsite and was impacting drinking water wells. If we have
learned anything in the past thirty years of environmental regulation,
it is that relying on federal agencies to ``voluntarily'' address
environmental contamination is often fruitless. One need look no
further than the approximately 130 DOD facilities on the Superfund
National Priorities List, or DOD's poor record of compliance with state
and federal environmental laws to see that independent, legally
enforceable state oversight of federal agencies is required to achieve
effective results.
DOD has stated that its language is intended to preempt state and
EPA cleanup authorities at operating ranges, even though it
acknowledges there have never been any conflicts between RCRA or CERCLA
cleanup requirements and military readiness, and in particular that
neither state nor federal regulators have taken any action under these
laws that has adversely impacted military readiness.2 DOD
instead proposes to address any environmental contamination on or under
its ranges through self-oversight.
---------------------------------------------------------------------------
\2\ DOD representatives met with representatives of State Attorneys
General and state environmental agencies in December 2003 to discuss
DOD's concerns with the Clean Air Act and with the application of RCRA
and CERCLA to military ranges. At that meeting, DOD stated that one of
its main objectives in its proposed legislation was to preempt state
and EPA authority over operating ranges. A summary of the meeting
representing the perspective of the state attendees is attached as
Exhibit 2.
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We oppose DOD's proposed amendments to RCRA, CERCLA, and the Clean
Air Act for the following reasons:
First, as far as we are aware, the Department of Defense has not
identified any cases in which these three laws have actually
adversely impacted readiness. Nor are we aware of any such
cases. Indeed, in a recent meeting between states and DOD
representatives, DOD acknowledged that preempting state
authority under these laws was ``not a matter of readiness, but
of control.'' Consequently, we do not believe that the proposed
amendments are necessary.
Second, RCRA, CERCLA, and the Clean Air Act already provide
sufficient flexibility to accommodate potential conflicts, in
the unlikely event they occur. Each of these laws provides for
case-by-case exemptions. In addition, states have a track
record of working with DOD and other federal agencies to ensure
that environmental requirements do not impede national security
objectives.
Third, the magnitude and nature of DOD's past and current activities
present a significant risk of environmental contamination.
Experience over the past thirty years shows that independent
state oversight is necessary to ensure protection of human
health and the environment. This same experience also shows
that states are sensitive to DOD's national security mission,
and have consistently found ways to balance military and
environmental requirements.
Fourth, the Department of Defense's amendments would radically change
existing law and policy, and would impair state and EPA
authority to ensure protection of human health and the
environment.
Each of these points is discussed in greater detail in the sections
that follow.
II. DOD's proposed amendments to RCRA, CERCLA, and the Clean Air Act
are unnecessary, and would impair protection of human health
and the environment, without improving military readiness.
II. A. DOD has not demonstrated any conflicts between RCRA, CERCLA, or
the Clean Air Act.
DOD has urged Congress to amend these laws, and has testified about
the impacts of these and other environmental laws on military readiness
at over 12 Congressional hearings since 2001.3 Just last
month, in response to Congressional directives, DOD submitted a report
to Congress addressing the impacts of RCRA, CERCLA, and the Clean Air
Act on military readiness.4 Yet, nowhere in any of this
testimony or its report to the Congress did DOD identify even a single
instance in which RCRA, CERCLA, or the Clean Air Act have impacted
military readiness.
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\3\ Senate Committee on Environment and Public Works hearing on
Impact of Military Training on the Environment, April 2, 2003, opening
statement of Chairman James Inhofe. Chairman Inhofe displayed an
exhibit showing the following hearings on encroachment issues: 1.
Senate Armed Services Readiness and Management Support Subcommittee, 20
March 2001; 2. House Government Reform Committee, 09 May 2001 ; 3.
House Armed Services Military Readiness Subcommittee, 22 May 2001; 4.
Senate Armed Services Readiness and Management Support Subcommittee, 28
February 2002; 5. House Armed Services Military Readiness Subcommittee,
08 March 2002; 6. House Government Reform Committee, 16 May 2002; 7.
Senate Environment and Public Works Committee, 09 June 2002; 8. House
Resources Subcommittee on Fisheries Conservation, Wildlife, and Oceans
13 June 2002; 9. Senate Armed Services Readiness and Management Support
Subcommittee, 06 March 2003; 10. House Armed Services Military
Readiness Subcommittee, 13 March 2003; 11. Senate Armed Services
Readiness and Management Support Subcommittee, 01 April 2003; 12.
Senate Environment and Public Works Committee, 02 April 2003.
\4\ ``Report to the Congress: Implementation of the Department of
Defense Training Range Comprehensive Plan,'' February 2004. This report
was submitted pursuant to section 366 of the National Defense
Authorization Act for FY 2003 and section 320 of the National Defense
Authorization Act for FY 2004. Section 366 required the report to
identify and evaluate training constraints caused by limitations on the
use or military lands, marine areas, and air spaces at each training
range. Section 320 required a study that specifically identified the
impacts of RCRA, CERCLA, and the State Implementation Plan requirements
of the Clean Air Act on specific military installations.
---------------------------------------------------------------------------
Last year, EPA Administrator Christine Whitman testified that she
was not aware of any training mission anywhere in the country that was
being held up or not taking place because of RCRA, CERCLA, or the Clean
Air Act. On March 7, 2003, Deputy Secretary of Defense Wolfowitz issued
a memorandum to the military service Secretaries regarding DOD
compliance with ten different environmental and natural resource laws.
He stated ``[i]n the vast majority of cases, we have demonstrated that
we are able both to comply with environmental requirements and to
conduct necessary military training and testing.'' In light of this,
the Deputy Secretary directed the Secretaries to give greater
consideration to using the existing exemption processes in these
environmental and natural resource laws in the ``exceptional cases''
that may present conflicts. To date, no exemptions have been invoked
under RCRA, CERCLA, or the Clean Air Act related to military readiness.
And in December, 2003, representatives of several western Attorneys
General and state environmental agencies met with representatives of
the Department of Defense (DOD) and the military services to discuss
the underlying concerns that prompted DOD to promote proposed
legislation to amend several environmental laws. DOD acknowledged that
there have not been any instances in which RCRA or CERCLA have impacted
readiness, and specifically that no state has ever used its RCRA or
state superfund authority in a manner that has impacted
readiness.5
---------------------------------------------------------------------------
\5\ Exhibit 2, at pp. 3-4.
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II. B. RCRA, CERCLA, and the Clean Air Act provide sufficient
flexibility to accommodate any conflicts between their
requirements and military readiness, in the unlikely event such
conflicts occur.
It is noteworthy that in the four years DOD has been warning of
conflicts between military readiness and requirements under RCRA,
CERCLA, or the Clean Air Act, no such conflicts have arisen. We think
that the likelihood of such conflicts in the future is low, because of
inherent flexibility in implementing requirements under these laws. In
the unlikely event such a conflict occurs, the existing exemption
provisions in these laws provide further flexibility. They allow the
military readiness concerns to override the environmental
considerations, while preserving environmental regulators' authority in
the vast majority of cases where there is no conflict.
II. B. 1. There is substantial flexibility in implementation of
environmental requirements under RCRA, CERCLA, and the Clean
Air Act.
States have been regulating the Departments of Defense and Energy--
the two federal agencies with national security missions--for decades
without impacting national security. We have been able to do so because
there is substantial inherent flexibility in most environmental
regulatory programs. This is especially true in investigating and
cleaning up contaminated sites under both RCRA and CERCLA. There are a
variety of approaches to investigating and cleaning up contamination,
and cleanup strategies are invariably site-specific.
For example, there is flexibility in siting the specific location
of monitoring wells and treatment systems, and additional flexibility
in the timing of their installation and sampling or maintenance. One
example of successfully coordinating environmental cleanup and training
activities on an operational range is at Ft. Carson, Colorado. There,
the Colorado Department of Public Health and Environment worked with
range officials at Ft. Carson to install groundwater monitoring wells
on an active range without impacting any training activities. The wells
were installed on a day when the range was not in use, and the state
adjusted the normal sampling period to coincide with range use
schedules.
The December 2003 meeting of state and DOD officials mentioned
above highlighted just how much flexibility there is ``on the ground''
to address the environmental impacts of military munitions without
impacting readiness. DOD representatives explained that ranges are
typically divided into different areas such as impact areas, buffer
zones, and maneuver areas. DOD allows public access to the maneuver
areas and buffer zones on some ranges for recreational purposes when
such activities do not conflict with DOD's own use of the range. State
officials asked why, if recreational activities in buffer zones and
maneuver zones can exist compatibly with range operation, installing a
groundwater monitoring well or treatment system in such areas would
cause any difficulties.6 Ultimately, DOD responded that
preempting state authorities was ``not a matter of readiness, but of
control.'' 7
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\6\ If it were necessary to install a well in an impact area, it
could be hardened against the possibility of being damaged or destroyed
by a military munition.
\7\ Exhibit 2, at p. 4.
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There is also significant practical flexibility in the Clean Air
Act. DOD acknowledged at the December 2003 meeting with state
representatives that advance planning, combined with existing
thresholds and exemptions in the Clean Air Act regulations would
resolve its clean Air Act concerns in most cases.
It's easy to hypothesize potential conflicts between environmental
regulations and military training. It takes a little more work to
balance readiness and environmental concerns on a case-by-case basis,
but the track record of the past several decades shows that resolution
of competing considerations is the normal practice.
II. B. 2. RCRA, CERCLA, and the Clean air Act each provide simple
exemption processes that may be used in the unlikely event of a
conflict between readiness and environmental requirements.
In the unlikely event that state or EPA regulators believed that
environmental contamination at an operational range required
remediation measures that did adversely impact readiness, RCRA and
CERCLA already allow DOD to seek an exemption from such requirements on
the basis of the paramount interests of the United States (RCRA) or
national security (CERCLA). According to the existing case law, rather
than being ``exceptionally high,'' (as DOD has claimed) 8
the ``paramount interest'' standard is quite deferential. The
``paramount interest'' standard is unique to the exemption provisions
of the environmental laws. The paramount interest provisions have been
the subject of litigation in two instances--one at the Air Force
facility near Groom Lake, Nevada, and the other at Puerto Rico's Ft.
Allen.
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\8\ See, e.g., testimony of Benedict S. Cohen, Deputy General
Counsel, U.S. Department of Defense before the Senate Environment and
Public Works Committee, April 2, 2003, at p. 7. (``Under these
statutes, the decision to grant an exemption is vested in the
President, under the highest possible standard: 'the paramount interest
of the United States,' a standard understood to involve exceptionally
grave threats to national survival.'') (Available at http://
epw.senate.gov/stm1_108.htm.)
---------------------------------------------------------------------------
In Kasza v. Browner,9 the Ninth Circuit Court of Appeals
upheld President Clinton's decision under RCRA 6001 to exempt the Air
Force facility near Groom Lake, Nevada from any hazardous waste or
solid waste provisions that would require the disclosure of classified
information to any unauthorized person. The court held:
---------------------------------------------------------------------------
\9\ Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998).
---------------------------------------------------------------------------
Here, the President found that ``it is in the paramount
interest of the United States to exempt the operating location
from any applicable requirement for the disclosure to
unauthorized persons of classified information.'' . . . That is
what the President determined was in the paramount interest of
the United States, a matter the Congress explicitly left to the
President's discretion, and we have no problem with the
district court's accepting that determination.10
---------------------------------------------------------------------------
\10\ Id. at 1173-74.
---------------------------------------------------------------------------
(Emphasis added.) Similarly, in Colon v. Carter,11 the First
Circuit described the exemptions provided in several environmental laws
as follows:
---------------------------------------------------------------------------
\11\ Colon v. Carter, 633 F.2d 964 (1st Cir. 1980).
---------------------------------------------------------------------------
[T]he determination that a President must make prior to issuing
an exemption from the relevant environmental regulations is
that the ``paramount interest of the United States' requires
the exemption. [citations omitted] It is difficult to imagine a
determination more fully committed to discretion or less
appropriate to review by a court.'' 12
---------------------------------------------------------------------------
\12\ Id. at 967.
---------------------------------------------------------------------------
(Emphasis added.) Thus, the only appellate decisions to address the
exemption provisions make clear that the determination that a
particular exemption is in the paramount interest of the United States
is one that lies within the President's discretion. The President's
discretion would certainly encompass a determination that it is in the
paramount interest of the United States to exempt a number of
individual military activities from certain environmental requirements
because of the cumulative impact of compliance on readiness.
In addition to providing a case-by-case exemption, section 118(b)
of the Clean Air Act authorizes the President to ``issue regulations
exempting from compliance with the requirements of this section any
weaponry, equipment, aircraft, vehicles, or other classes or categories
of property which are owned or operated by the Armed Forces of the
United States (including the Coast Guard) or by the National Guard of
any state and which are uniquely military in nature.'' 13
This provision allows even greater flexibility than the case-by-case
exemptions in managing any potential conflicts between Clean Air Act
requirements and readiness concerns. And this three-year exemption
provision in the Act goes directly to the heart of DOD's concern--that
the Act's federal conformity provisions may limit its ability to move
or add military vehicles--planes, tanks, etc.--among its various
installations. And the EPA regulations implementing the federal
conformity provisions also contain substantial flexibility. These
regulations allow DOD to set aside clean air requirements for up to six
months in response to ``emergencies,'' which, by definition, include
responses to terrorist activities and military mobilizations. This
exemption is renewable every six months through a written determination
by DOD.14
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\13\ 42 U.S.C. 7418(b).
\14\ 40 C.F.R. 93.153(d)(2), 93.153(e); 40 C.F.R. 152.
---------------------------------------------------------------------------
II. C. DOD's activities pose a substantial risk of harm to human health
and the environment that must be managed through independent
state oversight.
II.C.1. DOD's activities present a significant risk of harm to human
health and the environment.
DOD is responsible for far more contaminated sites than any other
federal agency. There are 158 federal facilities currently listed on
the Superfund National Priorities List (NPL); another 13 federal
facilities have been deleted from the NPL, and 6 are proposed for
listing. Of these 177 federal facilities, 142 are DOD
facilities.15 All together, DOD is responsible for
addressing over 28,500 potentially contaminated sites across the
country.16 Through fiscal year 2001, DOD had spent almost
$25 billion cleaning up sites for which it is responsible.17
DOD recently estimated that it would take another $14 billion to
complete the remediation of environmental contamination at active,
realigning and closing sites.18
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\15\ Information from EPA's Superfund website at http://epa.gov/
swerffrr/documents/fy2003.htm#b . Data current through FY 2003.
\16\ See ``Fiscal Year 2001 Defense Environmental Restoration
Program Annual Report to Congress,'' p. 19. This document is available
at the following DOD website: http://www.dtic.mil/envirodod/DERP/
DERP.htm
\17\ Id., p. 21.
\18\ Id., pp. 27-28. The $14 billion figure combines the total
cost-to-complete sums given for active installations in Figure 8 and
Base Realignment and Closure Sites in Figure 10.
---------------------------------------------------------------------------
But the need for cleanup of active and closing bases is only part
of the picture. DOD is also responsible for assessing and cleaning up
thousands of potentially contaminated ``Formerly Used Defense Sites''
(``FUDS'') in the United States and its territories and
possessions.19 Many FUDS are former bombing or gunnery
ranges that contain unexploded ordnance. The GAO estimated recently
that unexploded ordnance contamination may exist at over 1,600
FUDS.20 DOD estimates that approximately 16 million acres of
land on transferred ranges are potentially contaminated with unexploded
ordnance.21 There are no reliable data on the cost of
addressing the contamination at these former ranges and other FUDS.
DOD's recent estimates for unexploded ordnance cleanup vary from $14
billion to over $100 billion.22
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\19\ ``ENVIRONMENTAL CONTAMINATION: Cleanup Actions at Formerly
Used Defense Sites,'' GAO-01-557 (July 2001), p. 1. FUDS are properties
that were formerly owned, leased, possessed, or operated by DOD or its
components.
\20\ Id. at 2.
\21\ ``DOD Training Range Cleanup Cost Estimates Are Likely
Understated,'' GAO-01-479 (April 2001), p. 11.
\22\ Id., pp. 5 and 13.
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There is increasing evidence that DOD's activities on its ranges
may pose a threat to groundwater supplies. Some constituents of
explosives and munitions contamination, such as TNT, RDX and white
phosphorous, have toxic or potential carcinogenic effects.23
Another munitions constituent that is currently causing much concern is
perchlorate. Perchlorate is a chemical widely used in solid rocket fuel
and munitions. It interferes with iodide uptake into the thyroid gland,
and disrupts the thyroid function. The Wall Street Journal has reported
that EPA is concerned that fetuses and newborn babies may be
particularly sensitive to exposure to perchlorate.24
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\23\ Fact sheets or public health statements, all published by the
Agency for Toxic Substances and Disease Registry, for four common
explosives or munitions constituents (DNT, RDX, TNT and white
phosphorous), are attached as Exhibit 3. Also included in Exhibit 3 are
two EPA documents regarding perchlorate, another common munitions
constituent.
\24\ ``A Fuel of Cold War Defenses Now Ignites Health
Controversy,'' 12/16/2002 article by Peter Waldman, reported on page 1
of the Wall Street Journal, attached as Exhibit 4.
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Little is known about the factors affecting the movement of
munitions constituents such as perchlorate and TNT through soil and
groundwater.25 However, there is increasing evidence that
such munitions constituents on operational ranges can contaminate
drinking water supplies. Nationwide, there are at least 40 DOD
facilities with known perchlorate contamination of groundwater or
surface water.26 Live-fire training at the Massachusetts
Military Reservation (MMR) over several decades has contaminated large
amounts of groundwater in the sole source drinking water aquifer for
the Cape Cod area. Recently, the Town of Bourne closed half of its
drinking water supply wells due to contamination by perchlorate that
migrated from MMR. Subsequently, DOD spent approximately $2 million to
hook the town up to an alternate water supply.27 Reportedly,
explosives contaminants have been detected in about 100 groundwater
monitoring wells on MMR, and have exceed EPA health advisory limits at
53 of those wells.28 Similarly, military training activities
at the Aberdeen Proving Ground have contaminated groundwater there with
perchlorate, again prompting closure of a municipal water supply well
that had been contaminated.29
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\25\ See, e.g., Munitions Action Plan, prepared by the Operational
Environmental Executive Steering Committee for Munitions (DOD),
November, 2001. It is available on the web at https://
www.denix.osd.mil/denix/Public/Library/Munitions/MAPCRD/map-
finalnov01.doc.
\26\ Assessment compiled by staff of the House Energy and Commerce
Committee, available on the Committee's website at http://
www.house.gov/commerce_democrats/press/dod_final_
chart.pdf . This chart is attached as Exhibit 5.
\27\ ``Military Cash Flows for New Water Supply,'' story by Kevin
Dennehy, Cape Cod Times, April 24, 2002.
\28\ ``Work to Clean Cape Cod Continues as Pentagon Seeks
Environmental Exemptions,'' 5/27/2002 story by Melissa Robinson,
reported in Boston Globe Online, 5/29/2002.
\29\ ``Group calling for cleanup of perchlorate in Aberdeen,'' 10/
3/2002 article by Lane Harvey Brown in the Baltimore Sun.
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Perchlorate contamination is also a problem at many DOD contractor
facilities. Some of these facilities may be considered ranges under the
2004 RRPI. Defense contractors could thus argue they are insulated from
state and EPA oversight under RCRA and CERCLA-type authorities.
Examples of such facilities may include the Aerojet-General facility in
Rancho Cordova, California, or Kerr-McGee's perchlorate production
facility in Henderson, Nevada, above Lake Mead. Contamination from the
Kerr-McGee facility is a major contributor to perchlorate levels in the
Colorado River, which typically measure 10 to 12 parts per billion in
Las Vegas, and from 5 to 8 parts per billion in southern California,
where the Metropolitan Water District withdraws it for use in Los
Angeles's drinking water supply. Roughly 15% of California's water
supply comes from the Colorado River.30
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\30\ ``Colorado River Taint Worries Some Officials,'' article in
the Los Angeles Times, February 2, 2003, attached as Exhibit 6.
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II.C.2. Independent state oversight is needed to ensure DOD complies
with environmental requirements.
Under current law, DOD may obtain exemptions from requirements
under RCRA, CERCLA or the Clean Air Act in the unlikely event such
requirements conflict with military readiness. But under the 2004 RRPI,
DOD would be exempt from these requirements in all cases, even though
there would seldom, if ever, be a conflict. Obviously, a case-by-case
approach to resolving any future potential conflicts between readiness
and the requirements of RCRA, CERCLA and the Clean Air Act results in
more environmental protection at no cost to military readiness.
The case-by-case exemption approach afforded by existing law is
also preferable to sweeping statutory exemptions because the case-by-
case approach provides much-needed accountability. Experience since the
1992 Supreme Court decision in U.S. Department of Energy v. Ohio
31 demonstrates that federal agencies in general, and DOD in
particular, are far more likely to comply with environmental
requirements when they can be held accountable. In that case, the
Supreme Court held that federal agencies were not subject to penalties
for violating state hazardous waste and water quality laws. In
response, Congress swiftly amended RCRA by passing the Federal Facility
Compliance Act (FFCA).32 The FFCA made federal agencies
subject to penalties for violating hazardous waste laws. Once Congress
clarified the states' authority to hold federal agencies accountable
for violating hazardous waste requirements, DOD and other federal
agencies began steadily improving their RCRA compliance rates, bringing
the percentage of facilities in compliance from a low of 55.4% in FY
1993 to 96.9% in FY 2002.33
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\31\ 503 U.S. 607 (1992).
\32\ P.L. 102-386.
\33\ ``The State of Federal Facilities--An Overview of
Environmental Compliance at Federal Facilities FY 2001-2002'' USEPA
Office of Enforcement and Compliance Assurance, EPA 300-R-04-001,
January 2004, p. 13. Available on the web at http://www.epa.gov/
compliance/resources/reports/accomplishments/federal/soff0102.pdf .
---------------------------------------------------------------------------
This salutary trend stands in stark contrast to federal agency
performance under the Clean Water Act. Unlike RCRA, Congress did not
amend the Clean Water Act following the Ohio decision to subject
federal agencies to penalties for violating Clean Water Act
requirements. Since the Supreme Court decision removed the threat that
states could hold federal agencies accountable for violating Clean
Water Act requirements by assessing penalties, the percentage of
federal facilities in compliance with the Clean Water Act has fallen
fairly steadily from a high of 94.2% in FY 1993 to a low of 51.9% in FY
2001, rebounding in 2002 to 67.3% in 2002.34 DOD's Clean
Water Act compliance rates have generally been slightly worse than the
federal agency totals.35
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\34\ Id. While federal facilities' Clean Water Act compliance rates
as a whole rebounded somewhat in FY 1999 and 2000, the overall trend is
still downward.
\35\ Id. In 2002, DOD's CWA compliance rate exceeded the overall
rate for federal agencies. Id. at p. 20. DOD's Clean Water Act
compliance rates for FY 1996-2000 were slightly lower than federal
agencies as a whole. ``The State of Federal Facilities--An Overview of
Environmental Compliance at Federal Facilities FY 1999-2000'' USEPA
Office of Enforcement and Compliance Assurance, EPA 300-R-01-004,
September 2001, at p. 24; ``The State of Federal Facilities--An
Overview of Environmental Compliance at Federal Facilities, FY 1997-
98,'' USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-
00-002, January 2000, p. 26; ``The State of Federal Facilities--An
Overview of Environmental Compliance at Federal Facilities, FY 1995-
96'' USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-
98-002a, June 1998, pp. ES-11 and ES-12.
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III. DOD's proposed amendments would radically change existing law and
policy, and would impair state and EPA authority to ensure
protection of human health and the environment.
In response to criticisms of the 2002 and 2003 versions of the 2004
RRPI, DOD has made some revisions to its proposed language amending
RCRA and CERCLA. DOD has not made any revisions in its Clean Air Act
proposal. A careful analysis of the revised version of the RCRA/CERCLA
amendments indicates that they still create broad exemptions, as
described below.36
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\36\ DOD has also responded to some of the criticisms of its
proposal in a document titled ``Readiness and Range Preservation
Initiative (RRPI): Myth and Fact.'' We have analyzed DOD's ``Myth and
Fact'' paper in a separate paper titled ``Response to the Department of
Defense's position paper titled ``Readiness and Range Preservation
Initiative (RRPI): Myth and Fact,'' prepared by the staff of the
Attorneys General of Colorado, Idaho, Utah and Washington, April 2004,
attached as Exhibit 7.
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III. A. DOD's proposed 2004 amendments to RCRA create sweeping
exemptions from state and EPA oversight
In summary, DOD's proposed amendment to RCRA exempts certain
military munitions from RCRA's definition of ``solid waste,'' the
fundamental jurisdictional definition in RCRA. As a result, DOD's
proposed amendments likely preempt state and EPA authority to require
cleanup of a wide variety of munitions-related contamination. This is
because EPA's authority under RCRA only extends to materials that are
solid wastes, and because RCRA's waiver of sovereign immunity applies
to state requirements respecting control and abatement of ``solid
waste.'' (States may only regulate the federal government to the extent
Congress has authorized such regulation through a waiver of sovereign
immunity.) Thus, the scope of the RCRA sovereign immunity waiver will
likely be affected by amendments to RCRA's definition of solid waste.
And because waivers of immunity are construed extremely narrowly, any
ambiguity in the definition of solid waste will likely be construed in
the way that results in the narrowest waiver.37 If the 2004
RRPI were enacted, we are concerned that DOD would argue that
substances that are excluded from RCRA's definition of solid waste are
not subject to the waiver.
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\37\ Department of Energy v. Ohio, 503 U.S. 607 (1992).
---------------------------------------------------------------------------
DOD's proposed definition of solid waste reads:
``Section ------. Range management.
(a) Definition of Solid Waste.
(1) The term `solid waste' as used in the Solid Waste
Disposal Act, as amended (42 U.S.C. 6901 et seq.), does not
include military munitions, including unexploded ordnance, and
the constituents thereof, that are or have been deposited,
incident to their normal and expected use, on an operational
range, and remain thereon.
(2) Paragraph (1) shall not apply to military munitions,
including unexploded ordnance, or the constituents thereof,
that--
(A) are recovered, collected, and then disposed of by burial
or landfilling; or
(B) have migrated off an operational range; or
(C) are deposited off of an operational range; or
(D) remain on the range once the range ceases to be an
operational range.
(3) Nothing in this section affects the authority of federal,
state, interstate, or local regulatory authorities to determine
when military munitions, including unexploded ordnance, or the
constituents thereof, become hazardous waste for purposes of
the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et
seq.), including, but not limited to, sections 7002 and 7003,
except for military munitions, including unexploded ordnance,
or the constituents thereof, that are excluded from the
definition of solid waste by this subsection.
Thus, DOD's proposed amendment to RCRA's definition of solid waste
consists of three paragraphs. The first paragraph excludes certain
military munitions from the definition of solid waste, and the second
paragraph creates certain limitations on exclusion. The third paragraph
likely preempts federal, state, interstate and local authorities from
defining as solid waste any military munitions excluded from the
definition by the first two paragraphs.
DOD's proposed amendment excludes certain classes of munitions from
EPA regulation under RCRA by excluding them from the statute's
definition of ``solid wastes,'' which is a fundamental jurisdictional
prerequisite to RCRA regulation.38 By narrowing this
definition, DOD's proposed amendment also likely limits the scope of
state authority under state hazardous waste laws. That's because the
term ``solid waste'' appears in RCRA's waiver of federal sovereign
immunity--the provision of the law that makes DOD subject to state
hazardous waste laws.39 The scope of the RCRA sovereign
immunity waiver will likely be affected by amendments to RCRA's
definition of solid waste. And because waivers of immunity are
construed extremely narrowly, any ambiguity in the definition of solid
waste will likely be construed in the way that most restricts state
authorities over DOD.40
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\38\ See 42 U.S.C. 6903(5) and (27). Section 6903(5) defines
``hazardous waste'' as ``a solid waste, or combination of solid
wastes,'' that exhibits certain characteristics. Section 6903(27)
defines ``solid waste.'' Therefore, hazardous wastes are a subset of
solid wastes.
\39\ The RCRA waiver of immunity applies to state ``requirements
respecting the control and abatement of solid waste or hazardous waste
disposal and management.'' 42 U.S.C. 6961(a).
\40\ Department of Energy v. Ohio, 503 U.S. 607 (1992).
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III. A. 1. Even under a narrow reading, DOD's proposed language would
likely preempt state and EPA authority under RCRA and analogous
state laws to require investigation and cleanup of UXO or other
munitions contamination on over 24 million acres of
``operational ranges,'' including ranges that have not been
used in decades.
If proposed subsection (a) is read such that the phrase ``that are
or have been deposited, incident to their normal and expected use, on
an operational range, and remain thereon'' modifies ``military
munitions,'' then the exemption provided in paragraph (1) would be
limited to ``operational ranges.'' 41 As discussed below in
III.A.3., the term ``operational range'' may include contractor-owned
facilities. But even construed to mean only ranges owned or leased by
the United States, this exemption would still be very far-reaching, as
there are over 24 million acres of operational ranges owned or leased
by the United States and under DOD's control.42 This is
roughly equivalent to an area the size of Maryland, Massachusetts, New
Jersey, Hawaii, Connecticut and Rhode Island combined. These 24 million
acres include an unknown number of ranges that have not been used in
years, or, in some cases, decades.43
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\41\ The Defense Authorization Act for FY 2004 contains provisions
defining ``range'' and ``operating range.'' Under the new definition,
(3) Operational range.--The term ``operational range'' means a
range that is under the jurisdiction, custody, or control of the
Secretary of Defense and--
(A) that is used for range activities, or
(B) although not currently being used for range activities, that is
still considered by the Secretary to be a range and has not been put to
a new use that is incompatible with range activities.
H.R. 1588, section 1042 (codified at 10 U.S.C. 101(e)(3)). The
term ``range'' is now defined as a designated land or water area that
is set aside, managed, and used for range activities. 10 U.S.C.
101(e)(1)). ``Range activities'' are further defined as research,
development, testing, and evaluation of military munitions, other
ordnance, and weapons systems, and the training of military personnel
in the use and handling of military munitions, other ordnance, and
weapons systems. 10 U.S.C. 101(e)(2).
\42\ This figure comes from information provided by DOD to the
General Accounting Office. Additionally, during oral argument in the
case challenging the EPA's munitions rule, Department of Justice
attorneys stated that ``The Department of Defense has 2100 active and
inactive ranges. The land portions of these ranges alone encompass
approximately 24 million acres.'' Tides Center and Military Toxics
Project v. Environmental Protection Agency, case no. 97-1342,
transcript of April 2, 1998 oral argument before the U.S. Court of
Appeals for the District of Columbia, p. 32. The new definition of
``operational range'' encompasses both active and inactive ranges. See
10 U.S.C. 101(e)(3).
\43\ Nothing in the new definition restricts the amount of time a
range can be inactive and still be considered ``operational.'' See 10
U.S.C. 101(e)(3)(B).
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The 2004 RRPI likely prevents states or EPA from requiring any
investigation or cleanup of munitions-related contamination under RCRA,
CERCLA, or analogous state laws within the exterior boundary of an
operational range, regardless of whether such contamination presents an
imminent and substantial endangerment, is threatening to migrate off-
range, or actually has migrated off range. One example where on-range
contamination likely presents an imminent and substantial endangerment
is the Aberdeen Proving Grounds. There, perchlorate contamination from
munitions has contaminated municipal drinking water wells that are
located on an operational range. Under The 2004 RRPI, states and EPA
would be powerless to require that this contamination be
addressed.44
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\44\ DOD would say that its proposal preserves EPA's CERCLA 106
imminent hazard order authority. However, EPA has never issued a CERCLA
106 order to DOD, nor may it do so without the concurrence of the
Department of Justice. Justice E.O. 12580(4)(e). In our view, EPA's
106 authority is not an adequate safeguard.
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Under DOD's proposed legislation, the presence of munitions
contamination in groundwater below a range is not considered to be
``off-range.'' 45 Instead, the contamination must move
beyond the lateral boundary of the range before it is considered off-
range.
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\45\ DOD's proposed language certainly can be read this way, and
DOD representatives confirmed this was their intent in the December
2003 meeting with state officials. See Exhibit 2 at p. 3.
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Preempting state and EPA RCRA authorities on operational ranges
significantly impairs these regulators' ability to protect human health
and the environment for several reasons. We know from decades of
experience in cleaning up plumes of groundwater contamination that the
only really effective strategy is to address the plume at its source,
but the 2004 RRPI would likely eliminate state and EPA authority to
require investigation or cleanup of an on-range source of
contamination. Some ranges encompass hundreds of square miles, so
munitions contamination could spread vast distances before it crosses a
range boundary where state or EPA authority would begin. Allowing
contamination to spread so far may create vast sacrifice zones of
unusable groundwater, because cleanup may not be technically or
economically feasible over such large areas. Groundwater supplies are
scarce in parts of the country, particularly in the West, and
particularly in times of drought. States have a vital interest in
preserving their groundwater resources to protect the health of their
citizens and the welfare of their economies.
Even if cleanup of such large plumes is technically feasible, DOD's
policy of allowing groundwater contamination to spread within the
exterior boundaries of its ranges substantially increases the costs of
cleaning up the contamination. It also substantially increases the risk
of unanticipated exposures to the contaminants, because our
understanding of the subsurface environment is limited at best.
Finally, without authority to require investigation of groundwater
contamination, how would regulators ever become aware of munitions
contamination in groundwater until it had impacted drinking water
supplies? These concerns underscore the importance to the states of
retaining the authority to require investigation and cleanup of
munitions contamination on ranges.
It is also important to recognize that the term ``operational
range'' includes ranges that have not been used in years, or even
decades.46 In a 1998 survey EPA noted that many ranges which
had not been used in decades had not been formally closed by DOD, and
so were considered ``inactive''.47 Because RCRA and CERCLA
cleanup actions can be implemented at active ranges without impacting
readiness, there is clearly no justification for preempting these
authorities at ranges that have not been used in years.
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\46\ Nothing in the new definition of range restricts the amount of
time a range can be inactive and still be considered ``operational.''
See 10 U.S.C. 101(e)(3)(B).
\47\ The EPA survey ``Used or Fired Munitions and Unexploded
Ordnance at Closed, Transferred, and Transferring Military Ranges:
Interim Report and Analysis of EPA Survey Results,'' EPA OSWER, EPA
505-R-00-01, April 2000, pp. 10-11.
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There also will likely be practical difficulties in applying the
concept of ``operational range'' to determine where state or EPA
authority begins or ends. At the December 2003 meeting between DOD and
state officials to discuss DOD's concerns with RCRA, CERCLA and the
Clean Air Act, DOD representatives indicated they were not aware of any
guidelines or procedures for designating ranges. When asked if each
range had a legal description, they responded that some do, while
others do not.48 Without knowing precisely where a range
boundary is, it is not possible to define where state or EPA authority
begins or ends under RRPI. And it also appears that under the RRPI, DOD
could eliminate state or EPA authority in a given area simply by
considering it to be part of a range--perhaps an expansion of a buffer
zone.
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\48\ See Exhibit 2 at p. 5.
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As a practical matter, even read in the narrowest fashion, the 2004
RRPI would likely preempt state and EPA authority under RCRA and
analogous state laws to require DOD to investigate or control an on-
range source of groundwater contamination, even if:
drinking water wells onsite or offsite were contaminated;
the contamination were causing an imminent and substantial
endangerment;
the range was on land owned by the state; or
it was on a range that had not been used in decades.
In addition, states and EPA would likely be preempted from
regulating the open detonation of unexploded ordnance.49
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\49\ In states that have adopted the munitions rule as finalized by
EPA, open detonation of UXO is not a waste management activity;
however, these states are not preempted from choosing to regulate such
activity.
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III. A. 2. DOD may argue that its proposed amendment to RCRA's
definition of solid waste should be construed more broadly to
exclude nearly all military munitions and related contamination
from RCRA and corresponding state regulation.
As noted above, federal courts construe waivers of federal
sovereign immunity extremely narrowly. 50 So a federal
court, when faced with alternative interpretations of a waiver of
immunity, will choose the one that results in the narrowest possible
waiver. DOD's proposed language is particularly troubling when
considered in light of this rule of statutory construction. That's
because proposed (a)(1) may be read two different ways. The alternative
readings arise because the grammatical construction of this paragraph--
a long series of phrases set off by commas--is ambiguous at best. The
limiting subordinate clause that starts ``that are or have been
deposited, incident to their normal and expected use, on an operational
range, and remain thereon'' could modify the term ``military
munitions,'' or it could modify the phrase ``including unexploded
ordnance, and the constituents thereof.'' Both readings create broad
exemptions, but the difference has significant implications.
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\50\ Department of Energy v. Ohio, 503 U.S. 607 (1992).
---------------------------------------------------------------------------
If the limiting clause ``that are or have been deposited, incident
to their normal and expected use, on an operational range, and remain
thereon'' modifies ``unexploded ordnance, and the constituents
thereof,'' then there is no language in (a)(1) that limits or modifies
``military munitions.'' Paragraph (a)(1) might as well read ``The term
``solid waste'' as used in the Solid Waste Disposal Act, as amended (42
U.S.C. 6901 et seq.), does not include military munitions.'' All
military munitions and munitions constituents 51 such as
perchlorate, TNT, RDX, and other chemical explosives and propellants--
except those described in (a)(2)--would likely be completely exempt
from state and EPA regulation under RCRA and analogous state laws.
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\51\ The Defense Authorization Act for FY 2004 added a definition
of military munitions to 10 U.S.C. 101(e):
(4) Military munitions.--(A) The term ``military munitions'' means
all ammunition products and components produced for or used by the
armed forces for national defense and security, including ammunition
products or components under the control of the Department of Defense,
the Coast Guard, the Department of Energy, and the National Guard.
(B) Such term includes the following:
(i) Confined gaseous, liquid, and solid propellants.
(ii) Explosives, pyrotechnics, chemical and riot control agents,
smokes, and incendiaries, including bulk explosives, and chemical
warfare agents.
(iii) Chemical munitions, rockets, guided and ballistic missiles,
bombs, warheads, mortar rounds, artillery ammunition, small arms
ammunition, grenades, mines, torpedoes, depth charges, cluster
munitions and dispensers, and demolition charges.
(iv) Devices and components of any item specified in clauses (i)
through (iii).
(C) Such term does not include the following:
(i) Wholly inert items.
(ii) Improvised explosive devices.
(iii) Nuclear weapons, nuclear devices, and nuclear components,
other than nonnuclear components of nuclear devices that are managed
under the nuclear weapons program of the Department of Energy after all
required sanitization operations under the Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq.) have been completed.
(5) Unexploded ordnance.--The term ``unexploded ordnance'' means
military munitions that--
(A) have been primed, fused, armed, or otherwise prepared for
action;
(B) have been fired, dropped, launched, projected, or placed in
such a manner as to constitute a hazard to operations, installations,
personnel, or material; and
(C) remain unexploded, whether by malfunction, design, or any other
cause.
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Although this definition does not include the word
``constituents,'' it does define munitions to include their components,
including propellants and explosives, the two main sources of chemical
constituents of munitions.
We are concerned that a federal court reviewing the 2004 RRPI would
adopt this interpretation because it would result in a narrower scope
of state authority over DOD. Subparagraph (2)(C) also supports this
reading. If paragraph (1)'s exclusion is limited to munitions that were
deposited, incident to their normal and intended use, on an operational
range, then (2)(C) would be surplusage. Because courts strive to give
meaning to all parts of a statute, the inclusion of (2)(C) suggests the
broader reading of (1) is appropriate.
This broader reading of (a)(1) would likely preempt state and EPA
authority to require the investigation or cleanup of nearly all
munitions-related contamination, not just contamination arising from
the normal and intended of munitions on an operational range. Even
munitions contamination that arose from improper management of
discarded munitions or munitions constituents would likely be excluded
from RCRA. One such example would be ammunition washout activities. At
the Pueblo Chemical Depot in Colorado, ammunition washout created a
plume of TNT-contaminated groundwater that has traveled over two miles,
and has gone off the Depot to contaminate drinking water wells nearby.
In addition, contamination caused by munitions or their
constituents that have been disposed through discharge, injection,
dumping, spilling or placing on or off of an operational range would
likely be excluded from state and EPA RCRA cleanup authorities.
Subparagraph (a)(2)(C) of DOD's proposal says that munitions or
munitions constituents that are ``deposited'' off an operational range
do not fall within paragraph (1)'s exclusion from the definition of
solid waste. However, DOD's proposal does not define the word
``deposited.'' ``Deposit'' is one of several different actions that
constitutes ``disposal'' under RCRA.52 Because paragraph (a)
of the 2004 RRPI amends the definition of solid waste in RCRA, a court
interpreting this language would certainly look to the definition of
``disposal'' in interpreting the word ``deposited.'' Again, because
courts strive to give meaning to all words in a statute, ``deposit''
would likely be construed as meaning something different than the other
actions that constitute disposal under RCRA. Therefore, munitions that
are discharged, injected, dumped, spilled or placed off an operational
range (or on one, for that matter) would still fall within (a)(1)'s
exclusion from RCRA's definition of solid waste. Examples of such
contamination include:
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\52\ RCRA defines disposal as ``the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any solid waste or hazardous
waste into or on any land or water so that such solid waste or
hazardous waste or any constituent thereof may enter the environment or
be emitted into the air or discharged into any waters, including ground
waters.'' 42 U.S.C. 6903(3).
groundwater contaminated by waste streams from the manufacture of
munitions or munitions constituents (such as perchlorate, RDX,
TNT, etc.) at hundreds of defense contractor facilities, such
as the Kerr-McGee plant in Henderson, Nevada that is
contaminating the entire downstream stretch of the Colorado
River;
contaminated groundwater from ammunition washout activities; and
UXO and munitions-contaminated groundwater at Department of Energy
facilities such as Los Alamos National Laboratory.
The broader reading of the 2004 RRPI could also preempt state and
EPA regulation of the destruction of the nation's stockpile of chemical
weapons such as nerve gas and mustard agent. These munitions do not
meet any of the criteria in paragraph (a)(2), and thus would be exempt
from the definition of solid waste under (a)(1). We understand that
there are 8 different chemical depots in the United States where such
munitions are stored awaiting destruction. At most, if not all of these
sites, states play a critical role in ensuring the safety of the
destruction process through their RCRA permitting authorities.
States and EPA would also likely be preempted from regulating open
burning and open detonation activities on operating ranges. There is
some evidence to suggest that open detonation of unexploded ordnance on
ranges is a significant source of munitions contamination in
groundwater.
Finally, this reading would also exempt from RCRA several
categories of munitions that are currently regulated under EPA's
``munitions rule.'' 53 For example, used or fired munitions
that are removed from an operational range for treatment or disposal
other than by landfilling would no longer be subject to
RCRA.54 Nor would munitions that have deteriorated or been
damaged to the point that they cannot be put into serviceable condition
and cannot reasonably be recycled or used for other
purposes.55
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\53\ 40 CFR Part 266, Subpart M.
\54\ Cf. 40 CFR 266.202(c)(1).
\55\ Cf. 40 CFR 266.202(b)(3).
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III. A. 3. DOD's proposed language may exempt defense contractor
facilities from federal cleanup requirements under RCRA.
DOD says that its proposed exemptions from RCRA do not include
munitions contamination at defense contractor facilities. We are
concerned that this is not the case, and that the 2004 RRPI's
exemptions from EPA authority under RCRA may extend to defense
contractor facilities.
Our concern arises because of recently adopted definitions for
``range'' and ``operational range.'' The new definition of ``range,''
codified at 10 U.S.C. 101(e), provides:
``(3) The term `range' means a designated land or water area
set aside, managed, and used to conduct research, development,
testing, and evaluation of military munitions, other ordnance,
or weapon systems, or to train military personnel in their use
and handling. Ranges include firing lines and positions,
maneuver areas, firing lanes, test pads, detonation pads,
impact areas, electronic scoring sites, buffer zones with
restricted access and exclusionary areas, and airspace areas
designated for military use according to regulations and
procedures established by the Federal Aviation Administration
such as special use airspace areas, military training routes,
or other associated airspace.''
Certainly many defense contractors conduct ``research and
development,'' if not also ``testing and evaluation'' of military
munitions, other ordnance, or weapons systems at their facilities.
Could these privately owned facilities be considered ranges? It seems
possible, if not likely, that they could, as there is nothing in the
definition of ``range'' or ``operational range'' that limits ranges to
land owned or leased by the United States.
Although the definition of ``operational range'' states that it
means a range ``under the jurisdiction, custody or control of the
Secretary concerned,'' this phrase does not mean the range must be
owned by the United States. 56 We have not been able to
identify any provision of the United States Code or the Code of Federal
Regulations that defines the phrase ``jurisdiction, custody or
control.'' Nor have we been able to find any decision of a federal
court that defines the phrase. Taken individually, none of these terms
implies ownership.
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\56\ Compare the ``jurisdiction, custody or control'' phrase with
language creating the Defense Environmental Restoration Program in 10
U.S.C. 2701(c):
(1) Basic responsibility.--The Secretary shall carry out (in
accordance with the provisions of this chapter and CERCLA) all response
actions with respect to releases of hazardous substances from each of
the following:
(A) Each facility or site owned by, leased to, or otherwise
possessed by the United States and under the jurisdiction of the
Secretary.
(B) Each facility or site which was under the jurisdiction of the
Secretary and owned by, leased to, or otherwise possessed by the United
States at the time of actions leading to contamination by hazardous
substances.
(C) Each vessel owned or operated by the Department of Defense.
(Emphasis added.)
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Indeed, DOD has previously argued that facilities it does not own
or lease may nonetheless be under its jurisdiction, custody, or
control. In 1997, in the preamble to its proposed ``Range Rule,'' DOD
stated that it retained jurisdiction over military munitions on closed
ranges that had been transferred to private ownership.57 And
in the fall of 2001, DOD forwarded proposed legislative language to the
Office of Management and Budget that appeared to define the Secretary
of Defense's ``jurisdiction'' to include facilities no longer owned by,
leased to, or otherwise possessed by DOD, but at which DOD is carrying
out a response action under the Defense Environmental Restoration
Program (DERP).58
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\57\ 62 Fed. Reg. 50796, 50797 (September 26, 1997). Specifically,
DOD stated:
[This proposal] applies to military munitions on closed,
transferred, and transferring military ranges previously or currently
owned by, leased to, or otherwise possessed or used by the United
States. These military ranges may not be under the administrative
control of the Secretary of Defense (or the Secretary of War prior to
1949); however, the munitions themselves remain under the jurisdiction
of the Secretary of Defense. For this reason, this proposal applies to
military munitions on closed, transferred, or transferring military
ranges where the range itself is under the administrative control of
another Federal agency or property owner, provided that the activity
that led to the munitions being on those ranges was in support of the
Department of Defense's national defense or national security mission.
Id. at 50797 (emphasis added).
\58\ DOD's proposal would have amended 10 U.S.C 2701, which
establishes the DERP. Its relevant proposed revisions are shown below
in underscored font.
(a) Environmental restoration program.--
(1) In General.--The Secretary of Defense shall carry out a program
of environmental restoration at facilities under the jurisdiction of
the Secretary listed in paragraph (c) of this section. The program
shall be known as the ``Defense Environmental Restoration Program''.
*******
(c) Responsibility for response actions.--
(1) Basic responsibility.--The Secretary shall carry out (in
accordance with the provisions of this chapter and CERCLA) all response
actions with respect to releases of hazardous substances from each of
the following:
(A) Each facility or site owned by, leased to, or otherwise
possessed by the United States and under the jurisdiction of the
Secretary.
(B) Each facility or site which was under the jurisdiction of the
Secretary and owned by, leased to, or otherwise possessed by the United
States at the time of actions leading to contamination by hazardous
substances where the Secretary is carrying out a response action under
the program established in subsection (a).
(C) Each vessel owned or operated by the Department of Defense.
By adding the phrase ``listed in paragraph (c) of this section,''
DOD's amendment would have created an argument that the facilities
listed in paragraph (c) are all under DOD's jurisdiction. And the new
language in (c)(1)(B) would have allowed DOD to argue that by carrying
out a response action at a site it no longer owned, leased or
possessed, it had obtained jurisdiction over the site.
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DOD--and attorneys for defense contractors--could make similar
arguments were these amendments to pass. For example, they might assert
that defense contractor facilities are under DOD ``control'' because of
contractual provisions that give it ownership of weapons or munitions,
or some degree of control over their manufacture or use. They might
also assert that DOD has ``jurisdiction'' over facilities it does not
own because the CERCLA National Contingency Plan designates DOD as the
``removal response authority with respect to incidents involving DOD
military weapons and munitions or weapons and munitions under the
jurisdiction, custody, or control of DOD.'' 59
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\59\ 40 C.F.R. 300.120(d).
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Furthermore, in the definition of ``range,'' the term
``designated'' is undefined. As far as we have been able to determine,
there is no provision in the United States Code or the Code of Federal
Regulations that establishes a procedure for ``designating'' a range.
Nothing in the proposed definition explains or limits who designates a
range, or how they designate one. Could a military contractor designate
a range on land it uses to test or manufacture munitions? Perhaps.
Nothing in the legislation adopted by Congress prevents it.
III. A. 4. The 2004 RRPI may be read to preempt state authority to
regulate munitions-related contamination at private defense
contractor facilities.
Privately-owned federal contractor facilities are not shielded from
regulation by the limits of a waiver of sovereign immunity, so simply
exempting military munitions from RCRA's definition of solid waste
would not preempt state regulation of such munitions at private
contractor sites. (As explained in the previous section, it would
likely exempt them from EPA regulation under RCRA.) However, new
language in paragraph (a)(3) of the 2004 version of DOD's proposal may
preclude states from defining military munitions excluded from the
definition of solid waste under paragraph (a)(1) as hazardous waste
under state laws.
Paragraph (a)(3) provides ``[n]othing in this section affects the
authority of federal, state, [or other] regulatory authorities to
determine when military munitions . . . become hazardous waste for
purposes of [RCRA], except for military munitions . . . that are
excluded from the definition of solid waste by this subsection.'' This
language clearly implies that states may not pass laws or regulations
defining as solid waste any munitions that are excluded from the
federal definition by the RRPI.
Because (a)(1) excludes at least those munitions and constituents
that were deposited incident to their normal use on operational ranges
at contractor facilities (and may exclude nearly all munitions and
their constituents at defense contractor facilities, depending on how
it is read), (a)(3) may preempt states from regulating at least some
categories of UXO and other munitions contamination at private
contractor sites. Thus, the RRPI could preempt state authority over the
cleanup of perchlorate-contaminated groundwater at DOD contractor
facilities under RCRA or analogous state laws. It could even preclude
states from regulating the management of waste streams from the
production of propellants and explosives used in military munitions--
thus potentially leading to even more groundwater contamination by such
toxins.
III. A. 5. DOD's proposal does not codify existing policy or practice.
DOD has repeatedly asserted that its legislative proposals,
including the 2004 RRPI, simply codify existing regulatory practice and
policy. Specifically, DOD asserts these amendments simply codify EPA's
``military munitions rule.'' 60 These assertions are simply
untrue. The 2004 RRPI represents a near 180 degree turnaround from the
munitions rule. To understand why, it's necessary to briefly explain
key RCRA provisions and summarize the munitions rule.
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\60\ See, e.g., DOD News Transcript titled ``Roundtable on Range
and Readiness Preservation Initiative,'' Tuesday, April 6, 2004, on the
web at http://www.dod.mil/transcripts/2004/tr20040406-0582.html;
testimony of Benedict S. Cohen, Deputy General Counsel, U.S. Department
of Defense before the Senate Environment and Public Works Committee,
April 2, 2003, at p 5. Mr. Cohen's testimony may be found at the
Committee's website at http://epw.senate.gov/stm1_108.htm.
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RCRA contains a broad statutory definition of solid waste and
hazardous waste.61 Statutory hazardous wastes are a subset
of statutory solid wastes. RCRA also directs the Environmental
Protection Agency to define a subset of statutory solid and hazardous
wastes as regulatory solid and hazardous wastes.62
Regulatory hazardous wastes are a subset of regulatory solid wastes.
The key difference between a regulatory and a statutory hazardous waste
is that the regulatory hazardous waste is subject to both RCRA's
cleanup authorities and permitting authorities, while statutory
hazardous wastes are only subject to RCRA's cleanup authorities, not
its permitting requirements.63
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\61\ 42 U.S.C. 6903(6) and (27).
\62\ 42 U.S.C. 6921.
\63\ 42 U.S.C. 6924(u) and (v), 6925(a); 6928(h), 6972(a)(1)(B),
and 6973(a). The permitting requirements in turn incorporate RCRA's
regulations governing the day-to-day management of hazardous wastes
(e.g., requirements related to safe storage, labeling, manifesting,
training, etc.).
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In 1992, Congress passed the Federal Facility Compliance
Act.64 In that Act, Congress directed EPA to promulgate
regulations defining when military munitions become regulatory
hazardous wastes.65 Because regulatory hazardous wastes are
a subset of statutory solid wastes, passage of the Federal Facility
Compliance Act means that military munitions are statutory solid wastes
if they meet the statutory definition, i.e., if they have been
``discarded.'' 66
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\64\ Pub. L. No. 102-386.
\65\ 42 U.S.C. 6924(y).
\66\ See 42 U.S.C. 6903(27); Military Toxics Project v. EPA, 146
F.3d 948, 950-51 (D.C. Cir. 1998).
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In 1995, EPA published its proposed ``munitions rule'' in the
Federal Register.67 Among other things, EPA proposed that
munitions used for their intended purpose (including research,
development, testing and training) are not regulatory hazardous wastes,
such that DOD would not need a RCRA permit to use munitions for such
purposes.68 EPA also proposed to define when used or fired
military munitions would be statutory solid wastes.69
Specifically, EPA proposed that munitions discharged during military
activities at ranges would be statutory solid wastes when the munitions
were left in place at the time the range closed or was transferred out
of DOD control. EPA also proposed that this provision would terminate
upon DOD's promulgation of a rule governing the cleanup of munitions on
closed and transferred ranges, and that DOD's rule would supersede all
RCRA authority over such munitions.70
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\67\ 60 Fed. Reg. 56468.
\68\ Id. at 56492.
\69\ Id.
\70\ Id.
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Some commenters on the proposed rule noted that the proposal to
``sunset'' regulation of discharged munitions as statutory solid wastes
upon promulgation of a DOD rule directly conflicted with the Federal
Facility Compliance Act, and that EPA had no authority to preempt state
authority to regulate discharged munitions. Commenters also argued that
DOD had no authority to promulgate such a rule.
EPA's final munitions rule contained the proposal that munitions
used for their intended purpose are not regulatory hazardous
wastes.71 EPA postponed action on the proposal to define
when discharged munitions would be statutory solid wastes, as well as
the sunset provision.72 EPA's decision to postpone action
was based partly on the comments objecting it had no authority to
preempt state authority, and partly on the fact that DOD had not
promulgated its ``range rule.'' 73 EPA stated that it would
further evaluate the legal arguments, and would also evaluate DOD's
proposed range rule; if DOD failed to promulgate the rule, or if EPA
found the rule to be insufficiently protective, EPA stated it would be
prepared to address the issue under Federal environmental
laws.74 DOD did publish a proposed range rule, but following
strong opposition from states and others, never published a final range
rule.75
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\71\ 62 Fed. Reg. 6625, 6654 (Feb. 12, 1997), codified at 40 CFR
266.202.
\72\ Id. at 6632.
\73\ Id.
\74\ Id.
\75\ The proposed range rule was published in 62 Fed. Reg. 50796
(September 26, 1997). Twenty-four Attorneys General joined in a letter
to the Office of Management and Budget urging OMB to disapprove the
final range rule, and the Environmental Council of the States also
passed a resolution opposing promulgation of the final rule. See
Exhibits 8 and 9. Again, states and others commented that DOD did not
have statutory authority to promulgate such a rule, and that in passing
the Federal Facility Compliance Act, Congress had intended for states
and EPA to oversee management of waste munitions, including cleanup of
munitions on closed and transferred ranges.
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EPA's decision to postpone promulgation of this provision does not
mean that discharged munitions on ranges are not statutory solid
wastes. As noted above, under the Federal Facility Compliance Act, if
such munitions meet the statutory definition of ``discarded,'' they are
statutory solid wastes.76
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\76\ The Department of Justice took this position in recent
litigation. See Water Keeper Alliance v. U.S. Department of Defense,
152 F. Supp.2d 163, 176, n. 3 (``Defendants [the United States] point
out that they 'do not seek dismissal of any claim that ordnance debris
and unexploded ordnance left to accumulate on the [Live Impact Area]
constitute solid waste.' [citation omitted] Consequently, the Court
will not dismiss this claim.'')
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Thus, the current state of the law is that:
munitions use does not require a RCRA permit; but
used or fired munitions are subject to RCRA's cleanup authorities in
appropriate circumstances;
contamination from munitions constituents such as perchlorate, RDX,
and TNT is subject to RCRA's cleanup authorities in appropriate
circumstances; and
nothing in the munitions rule preempts states from adopting
additional or more stringent requirements than those set forth
in the rule.
The 2004 RRPI differs from the munitions rule in at least four
significant ways. First, this statutory change would likely preclude
states and EPA from using RCRA's imminent and substantial endangerment
authorities to address most (or all) munitions-related contamination on
operational ranges (and perhaps elsewhere), because the 2004 RRPI
exempts certain munitions from RCRA's statutory definition of solid
waste.77
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\77\ As noted above in III.A.1. and III.A.2., RRPI may be read in
different ways that affect the reach of its preemptive effect.
---------------------------------------------------------------------------
Second, RRPI likely preempts state authority to require the cleanup
of most munitions-related contamination on operational ranges,
including unexploded ordnance and perchlorate contamination, under
RCRA.78 (Again, if read broadly as described in III.A.2.,
the preemptive effect would encompass nearly all munitions
contamination.) In contrast, the munitions rule does not preempt state
authority at all. In the preamble to the final rule, EPA expressly
acknowledged that under RCRA sections 3006 and 3009, ``States may adopt
requirements with respect to military munitions that are more stringent
or broader in scope than the Federal requirements.'' 79
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\78\ By narrowing the statutory definition of solid waste, a term
used in RCRA's waiver of sovereign immunity, RRPI likely narrows RCRA's
waiver of immunity. Department of Energy v. Ohio, 503 U.S. 607 (1992).
\79\ 62 Fed. Reg. 6625 (Feb. 12, 1997).
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Third, by including munitions constituents in paragraphs (a)(1) and
(a)(2), DOD's proposal likely preempts state and EPA authority over
munitions-related and explosives-related constituents (e.g.,
perchlorate, TNT, white phosphorous) that have leached from the
munitions and are contaminating the environment. In contrast, the
munitions rule does not address munitions constituents at all, and does
not prevent EPA or the states from requiring cleanup of these chemicals
when they leach from munitions into the soil or
groundwater.80
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\80\ In fact, EPA revised to final rule to make it absolutely clear
that contamination of soil and groundwater is not part of the
``intended use'' of munitions. See 62 Fed. Reg. 6631.
---------------------------------------------------------------------------
Fourth, as described in III.A.4., above, the 2004 RRPI may preempt
states from regulating certain categories of munitions and related
contamination at defense contractor sites. The munitions rule does not
preempt state authorities over defense contractors.
Finally, if read broadly as described in III.A.2 above, the 2004
RRPI would also exempt from RCRA several categories of munitions that
are currently regulated under EPA's munitions rule, including used or
fired munitions that are removed from an operational range for
treatment or disposal other than by landfilling, and munitions that
have deteriorated or been damaged to the point that they cannot be put
into serviceable condition and cannot reasonably be recycled or used
for other purposes.
III. B. DOD's proposed amendment to CERCLA likely impairs state and EPA
cleanup authorities, and may bar cost recovery and natural
resource damage claims regarding munitions-related
contamination.
DOD's 2004 proposed amendment to CERCLA provides:
``(b) Definition of Release.--
``(1) The term ``release'' as used in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. 9601 et seq.), does not include
the deposit or presence on an operational range of any military
munitions, including unexploded ordnance, and the constituents
thereof, that are or have been deposited thereon incident to
their normal and expected use, and remain thereon.
``(2) Paragraph (1) shall not apply to military munitions,
including unexploded ordnance, and constituents thereof, that
``
``(A) migrate off an operational range; or
``(B) are deposited off of an operational range; or
``(C) remain on the range once the range ceases to be an
operational range.
````(3) Notwithstanding the provisions of paragraph (1), the
authority of the President under section 106(a) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9606(a)), to
take action because there may be an imminent and substantial
endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous
substance includes the authority to take action because of the
deposit or presence on an operational range of any military
munitions, including unexploded ordnance, or the constituents
thereof that are or have been deposited thereon incident to
their normal and expected use and remain thereon.
``(c) Definition of Constituents.--For purposes of this
section, the term ``constituents'' means any materials
originating from military munitions, including unexploded
ordnance, explosive and non-explosive materials, and emission,
degradation, or breakdown products of such munitions.
``(d) Change in Range Status.--Nothing in this section
affects the legal requirements applicable to military
munitions, including unexploded ordnance, and the constituents
thereof, that have been deposited on an operational range, once
the range ceases to be an operational range.
``(e) Nothing in this section affects the authority of the
Department to protect the environment, safety, and health on
operational ranges.''
DOD's proposed amendment to CERCLA will likely impair EPA and state
authorities under CERCLA and related state laws to require the
investigation and cleanup of munitions-related contamination in many
cases. It is clearly intended to preempt such authorities in most, if
not all, situations on operational ranges. It may also impair state and
EPA authorities on ranges that are no longer operational. And it may
preclude parties that spend their own money cleaning up DOD's
munitions-related contamination on former DOD facilities from
recovering their response costs from DOD. Finally, it may preclude
states and Indian Tribes from recovering damages for injuries to their
natural resources that were caused by military munitions.
DOD's language may have all these impacts because under CERCLA,
``release'' is a fundamental jurisdictional prerequisite. The scope of
nearly all CERCLA authorities or requirements, including sections 104
(removal and remedial authority), 106 (imminent and substantial
endangerment order authority), 107 (liability for response costs and
natural resource damages), and 120 (relating to federal facilities) is
premised on the existence of a ``release'' or a ``threatened release''
of a ``hazardous substance, pollutant or contaminant.''
III. B. 1. DOD's proposed language likely encompasses not only used and
fired munitions, but munitions and related contamination from
production, maintenance activities, and proper or even improper
waste management activities.
Like DOD's proposed definition of ``solid waste,'' the proposed
definition of ``release'' under CERCLA is somewhat ambiguous. Paragraph
(1) of DOD's proposed definition contains a sentence structure that is
very similar to its proposed definition of ``solid waste.'' And again,
the phrase ``that are or have been deposited thereon incident to their
normal and expected use, and remain thereon'' could modify either
``military munitions'' or ``unexploded ordnance, and the constituents
thereof.'' If it modifies ``military munitions,'' then the exemption is
limited to those munitions that were deposited on an operational range
incident to their normal and intended use. But if it modifies
``unexploded ordnance, and the constituents thereof,'' then any
military munitions or constituents that have been deposited or are
present on an operational range are excluded, regardless of whether
such presence was the result of their normal and intended use.
The more natural reading of this language is for the phrase ``that
are or have been deposited thereon incident to their normal and
expected use, and remain thereon'' to modify ``unexploded ordnance, and
the constituents thereof.'' That's because the earlier part of the
sentence already includes the ``deposit'' of military munitions on an
operational range. Consequently, (b)(1) would exempt from CERCLA and
state superfund type laws any munitions-related contamination on an
operational range, not just contamination associated with the use of
munitions in training and testing. EPA would have no CERCLA authority
to require the investigation or cleanup of contamination on an
operational range (including ranges on contractor-wined facilities)
that arose from any of the following activities:
spills, leaks, or even intentional disposal of wastes from the
production of munitions propellants or constituents, even if
such contamination were migrating offsite;
spills, leaks, or even intentional disposal of wastes from ammunition
maintenance activities, even if such contamination were
migrating offsite (as is occurring at the Pueblo Chemical Depot
in Colorado);
the use or firing of munitions on a range, even if such contamination
were migrating offsite; or
burial of munitions on a range.
II. B. 2. DOD's proposal would impair several federal cleanup
authorities at operational ranges.
By excluding munitions on operational ranges from CERCLA's
definition of ``release,'' DOD's proposed amendment will likely impair
EPA's authority under CERCLA to require investigation or remediation of
most, if not all, munitions-related environmental contamination on
operational ranges.
For example, DOD's proposed amendment appears to eliminate existing
EPA authority to gather information under CERCLA 104(e) regarding
munitions-related and explosives-related contamination. Without this
authority, it would be difficult indeed for EPA to determine whether
munitions were contaminating drinking water sources under an
operational range. Consequently, the fact that RRPI preserves EPA's
106 imminent hazard authority is largely meaningless. Nationwide, there
are at least 40 DOD facilities with known perchlorate contamination of
groundwater or surface water. Nineteen of these facilities are on the
Superfund National Priorities List.81
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\81\ See Exhibit 5; also available on the Committee's website at
http://www.house.gov/commerce_democrats/press/dod_final_chart.pdf .
---------------------------------------------------------------------------
DOD's proposed amendment also appears to remove cleanup of
munitions-related contamination from the scope of CERCLA section 120
interagency agreements for sites on the National Priorities List. This
means that EPA will no longer have authority to select (or concur in)
remedies for munitions- and explosives-related contamination at
operating ranges on the 14 NPL sites mentioned above--or indeed, any of
the approximately 129 DOD facilities currently on the NPL.
This provision may also be read to eliminate the requirement that
investigation and cleanup of munitions-related contaminants on
operational ranges be conducted according to standards that apply to
all other CERCLA cleanups.82 By removing these public
involvement, procedural, substantive and technical safeguards,
subsection (b) would severely undermine the goal of achieving cleanups
that adequately protect human health and the environment.
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\82\ 42 U.S.C. 9620(a)(2).
---------------------------------------------------------------------------
III. B. 3. DOD's proposed definition of release will likely impair
state superfund-type authorities at operational ranges.
The change in the definition of ``release'' also may narrow the
scope of state authority under state superfund-type laws, because it
may narrow CERCLA's waiver of immunity. CERCLA's waiver of immunity
includes state laws ``concerning removal and remedial action.''
83 CERCLA's definitions of ``removal'' and ``remedial
action'' are limited by the definition of ``release.'' 84
Thus, by excluding the ``deposit or presence on an operational range of
any explosives, unexploded ordnance, munitions, munitions fragments, or
constituents thereof that are or have been deposited thereon incident
to their normal and expected use'' from the definition of ``release,''
this provision likely precludes state superfund authority over
munitions-related contamination on operational ranges. DOD's language
would likely impair state authority over munitions contamination that
arose from any of the following activities:
---------------------------------------------------------------------------
\83\ 42 U.S.C. 9620(a)(4).
\84\ 42 U.S.C. 9601(23) and (24).
spills, leaks, or even intentional disposal of wastes from the
production of munitions propellants or constituents, even if
such contamination were migrating offsite;
spills, leaks, or even intentional disposal of wastes from ammunition
maintenance activities (such as the ammunition washout that
created the TNT plume at Pueblo Chemical Depot), even if such
contamination were migrating offsite;
the use or firing of munitions on a range, even if such contamination
were migrating offsite; or
burial of munitions on a range, even if such contamination were
migrating offsite.
III. B. 4. DOD's proposal may impair state and EPA superfund-type
cleanup authorities on ranges that are no longer operational.
The 2004 RRPI may also impact state and EPA authority to require
cleanup of 16 million acres of closed and transferred ranges that DOD
estimates may be contaminated with UXO and munitions constituents.
(Many of these ranges are now in private ownership.) On the one hand,
proposed (b)(2)(C) may be read to suggest that once a range ceases to
be operational, the presence of any munitions that remain on the range
constitutes a ``release.'' It doesn't specifically state that the
presence of such munitions contamination is a release, but it seems to
permit such an argument.
On the other hand, under DOD's proposal, the initial deposit of the
munition on the range is likely still excluded from the definition of
release. This is because CERCLA defines a ``release'' as ``any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environment (including the abandonment or discarding of barrels,
containers, and other closed receptacles containing any hazardous
substance or pollutant or contaminant).'' 85 However, the
UXO that remains on an operational range after it has closed is not
being spilled, leaked, poured, etc. It's just there. Thus, DOD may
argue that the mere presence of unexploded ordnance on a now-closed
range still does not constitute a release. Because this argument would
be made in the context of a dispute between DOD and a state over the
scope of CERCLA's waiver of sovereign immunity, we are concerned that a
court would give undue deference to DOD's position to reach a
construction of the statute that results in a narrower waiver.
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\85\ 42 U.S.C. 9601(22). Note that release includes ``disposal,''
and CERCLA defines ``disposal'' to have the same meaning as provided in
RCRA, which includes ``deposit.'' 42 U.S.C. 9601(29), 6903(3).
---------------------------------------------------------------------------
III. B. 5. DOD's proposed definition of release may be read to impair
state and EPA authority over munitions-related contamination at
contractor-owned facilities.
As noted above, the definition of ``operational range'' may include
land owned by defense contractors.86 The 2004 RRPI could
preclude EPA from using its CERCLA authorities to require investigation
or cleanup of munitions-related contamination at operational ranges on
contractor-owned lands.
---------------------------------------------------------------------------
\86\ See III.A.3., above.
---------------------------------------------------------------------------
To the extent that RRPI narrows CERCLA's waiver of sovereign
immunity, it would not impact state authority at operational ranges on
contractor-owned facilities, because such facilities do not have the
shield of sovereign immunity. However, there are states whose
superfund-type laws are tied to definitions in CERCLA. In such states,
DOD's proposed definition of release may prevent the state from using
its superfund law to require a DOD contractor to clean up munitions
contamination at its facility.
III. B. 6. DOD's proposal may shift the costs of cleaning up munitions-
related contamination to states, local governments, water
utilities, and private parties by precluding cost recovery
claims against DOD.
DOD's proposal could shift the costs for cleaning up munitions-
related contamination to states, local governments, water suppliers,
farmers and others by precluding CERCLA cost recovery claims against
DOD. Under CERCLA, a person who incurs costs in responding to a release
of a hazardous substance may seek to recover those costs from liable
parties under CERCLA 107. In the case of a former military range now
in private ownership, DOD's proposed language likely insulates it from
CERCLA liability as follows. A party that incurred costs cleaning up
UXO on such a range that sought to recover its costs from DOD under
CERCLA would have to demonstrate that DOD met one of the four
categories of liable parties described in CERCLA 107(a)(1)-(4). DOD
clearly would not be a current owner or operator ( 107(a)(1)), an
arranger ( 107(a)(3)), or a transporter ( 107(a)(4)). It could only
be liable under 107(a)(2) as a ``person who at the time of disposal
of any hazardous substance owned or operated any facility at which such
hazardous substances were disposed of.'' Thus, the person would have to
show that they incurred costs responding to a ``release'' of a
hazardous substance, that UXO is a ``hazardous substance,'' and that
DOD owned the facility at which the UXO was disposed at the time of
disposal. CERCLA defines ``hazardous substance'' to include hazardous
wastes having a characteristic identified under EPA RCRA regulations.
One of those characteristics is reactivity, and ``live'' UXO exhibits
the characteristic of reactivity. So, if UXO is a characteristic
hazardous waste, it is a hazardous substance.
Two aspects of DOD's proposal may serve to defeat any such cost
recovery claim. First, it appears that under revised (a)(2)(D),
munitions contamination that remains on a range after the range is no
longer an operational range may be considered a solid waste, and thus
potentially a hazardous waste and a hazardous substance. But a range
may only cease to be ``operational'' when the land has been transferred
out of federal ownership, or possibly not until the transferred land
has been put to a use that is inconsistent with being a range. In
either case, any munitions contamination on the range would not become
a solid waste (and thus a hazardous substance) until DOD no longer owns
the land. If so, cost recovery claims against DOD under CERCLA
107(a)(2) would fail.
Second, as described above, DOD may argue that the mere presence of
unexploded ordnance on a now-closed range still does not constitute a
release. If successful, this argument would also defeat a cost recovery
claim.
Such cost recovery claims are not hypothetical. Private entities
are spending their own money to clean up DOD's UXO at former ranges
because the DOD cleanup program does not have the resources to address
the existing priorities. For example, several developers have spent
millions of dollars to investigate and clean up potential UXO
contamination at the former Lowry Bombing Range near Denver so they can
proceed with plans to build housing and commercial developments. One of
these developers recently filed a CERCLA cost recovery
suit.87
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\87\ Lennar Colorado, Inc. v. U.S., case no. 04-Mk-0627, filed
March 31, 2004.
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The number of cases where private entities pay to clean up DOD's
contamination will likely increase substantially over the coming years
because the federal budget for cleaning up UXO on closed ranges (a
subset of the Formerly Used Defense Site program) is not adequate to
address the number of sites requiring cleanup. The General Accounting
Office recently released a report that found ``DOD has made limited
progress in its program to identify, assess, and clean up sites that
may be contaminated with military munitions.'' 88 This same
report found that at current funding levels, ``cleanup at the remaining
munitions sites in DOD's current inventory could take from 75 to 330
years to complete.'' 89 However, these former ranges are
increasingly subject to development pressures. Under DOD's proposed
legislation, the developers at the Lowry Bombing Range, and others like
them, will likely have to bear the financial responsibility for
cleaning up DOD's mess.
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\88\ ``MILITARY MUNITIONS: DOD needs to Develop a Comprehensive
Approach for Cleaning Up Contaminated Sites,'' GAO-04-147, December,
2003, p. 4. This report is available at GAO's website: www.gao.gov.
\89\ Id. at 17.
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III. B. 7. DOD's proposed definition of release may also be read to
impair claims for CERCLA response costs or for natural resource
damages.
Natural resource damages under CERCLA may be sought from the same
classes of persons as may be liable for response costs. Therefore, DOD
may be able to assert the same defenses to a natural resource damage
claim for injuries to groundwater or other natural resources described
above regarding cost recovery claims.
III. B. 8. Preserving EPA's CERCLA 106 order authority does not does
not ensure effective oversight.
DOD points out that paragraph (3) of its proposal preserves EPA's
authority to issue a CERCLA administrative order under section 106(a).
In the states' view, this does not provide any assurance of effective
oversight. EPA has never once issued a CERCLA 106 order to DOD. EPA
may not issue such orders without the concurrence of the Department of
Justice.90 Further, under the 2004 RRPI, EPA has no
information gathering authority on operational ranges. Thus, it is
difficult to see how EPA could obtain information necessary to support
issuance of an imminent hazard order under CERCLA 106.
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\90\ Pursuant to executive order, EPA cannot issue a CERCLA
106(a) (imminent and substantial endangerment) order to another federal
agency without the concurrence of the Department of Justice. E.O. 12580
(4)(e).
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III.C. DOD's proposed amendments to the Clean Air Act would reverse the
fundamental principle of that Act to prevent unhealthy levels
of air pollution.
Section 176 of the Clean Air Act provides that the Federal
Government must ensure that its significant actions ``conform'' to
requirements of the applicable state air quality implementation plan,
thereby ensuring that federal actions will not cause or contribute to
any violation of the National Ambient Air Quality Standards
(NAAQS).91 These are health-based limits on common serious
pollutants like ozone, nitrogen oxides, and carbon monoxide, which
cause health effects ranging from increased rates of asthma and
hospital admissions to premature death.92 And section 118 of
the Clean Air Act already makes clear that the Federal Government is
required to comply with state and federal air pollution control
requirements like any other polluter. Together, these provisions
clearly establish that federal entities, like DOD, cannot add to dirty
air problems and must do their part to reduce air pollution.
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\91\ 42 U.S.C. 7506.
\92\ 42 U.S.C. 7409.
---------------------------------------------------------------------------
The 2004 RRPI would exempt DOD, for the first three years of any
significant federal ``military readiness action,'' from the
requirements of 176(c) of the Clean Air Act. That provision requires
any federal agency, before it proceeds with a significant federal
action, to complete a conformity analysis for the lifespan of the
action and make a determination that the action will not cause or
contribute to new violations of NAAQS, increased frequency of
violations, or a delay in attaining NAAQS. In addition, it would allow
a state 93 to be considered legally in compliance with some
air quality standards even if, in fact, those standards are violated--
if the violation is caused by pollutants from DOD's action. And because
there is also no limit on the definition of what constitutes a
particular ``activity,'' multiple re-basing or training activities
could be redefined from year to year, thereby allowing successive
three-year exemptions from general conformity--essentially obviating
its intended purpose. So, DOD's proposal may permanently legalize
unhealthy levels of air pollution near military bases. This would
violate a bedrock principle of the Clean Air Act, which makes clear
that the goal of the Act is to actually attain and maintain air that is
``requisite to protect public health'' throughout the nation, not just
in areas geographically removed from military bases.94 Under
the DOD proposal, people living in areas near military bases would
receive less protection under the Clean Air Act.
---------------------------------------------------------------------------
\93\ In some areas of the country, regional air authorities rather
than states regulate air quality. The analysis in this testimony for
states applies to these authorities as well.
\94\ 42 U.S.C. 7409.
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DOD's proposal would force states to accept unhealthy levels of air
pollution for their citizens or require private industries or other
governmental agencies to make significant cuts in their air pollution
emissions. DOD has suggested that the proposed exemption from
conformity requirements would not impose an undue burden on states
because the total quantities of pollutants is not likely to be large.
DOD gave examples of actions that would use \1/2\ of 1% of the region's
total NOX budget. However, nothing in the proposed
legislation would limit the amount of pollution that would be exempted
from conformity requirements. And it is also important to understand
how competitive the pollution budgeting situation is in many non-
attainment areas. The amounts used in DOD's examples are significant in
that environment; highway projects regarded by local authorities as
critical have been stopped or delayed over these kinds of amounts.
Mr. Gillmor. Thank you, Mr. Miller.
Mr. Steven Brown.
STATEMENT OF STEVEN BROWN
Mr. Brown. Thank you, Mr. Chairman and the committee for
inviting the Environmental Counsel of the States to present
testimony on this issue. I am the Executive Director of ECOS
testifying on their behalf. Congressman Gillmor, the President
of ECOS, Chris Jones, also the Director of the Ohio EPA, sends
his regrets that he could not be here.
ECOS is a national nonpartisan nonprofit association of all
the State and territorial executives that run the environmental
agencies in the States. ECOS opposes RRPI for at least three
reasons but I am going to focus on one that I was able to speak
to my members about at our recent meeting which just ended
yesterday, our spring meeting.
ECOS does not believe that DOD has documented its problems
with these acts. I surveyed all of the ECOS members in
attendance over the past 4 days at the 2004 ECOS spring meeting
and not a single one of them can cite a single example of a
case where a base had asked for help with air or waste in which
the State agency had been unable to accommodate the request.
Most States said that the bases themselves had not
expressed any problems with compliance with these facts at all.
We discussed this matter with Texas, Ohio, California,
Michigan, and at least 20 other States directly in a plenary
session with all 37 States of everyone in attendance.
Second, we believe that the proposal would have unintended
and undesirable outcomes, that it would disrupt a State's
ability to protect the health of its citizens, and, as others
as stated, that we believe in principle that the Federal
Government, including DOD, should be a stellar model in
compliance to the Federal environmental law.
Our third reason is that all three laws already have the
exemptions that others before me have spoken about. ECOS has
addressed this issue twice before. Last year we passed a
resolution opposing the effort that was before Congress at the
time. We sent a letter opposing the previous attempt in 2002 as
well. Those are attached to my written testimony.
Our members, of course, support military readiness and
training. In fact, one of my members is a retired major general
in the U.S. Army. We also note, though, that the distinction
between legitimate training and routine activities is very
blurry. My member from Nevada, for example, told me that the
DOD Air Force Base there had insisted that a paint booth be
exempted from the Clean Air Act. Well, a paint booth sounds
like routine maintenance to me. Perhaps it sounds like training
to you. I will leave it to you to decide.
Both ECOS and the individual States have many examples
where you have worked very cooperatively with DOD. When a
circumstance or situation arises that requires some expedited
response, or an action out of the normal channel of operations,
you worked very creatively and quickly with those spaces to
achieve solutions to the problem.
For example, when there has been a need States worked with
DOD facilities to issue emergency permits even over the
telephone in less than 24 hours at your request. Many of our
members meet regularly with their bases to address problems
before they become serious and ward off difficulties that might
have otherwise occurred.
As an association, ECOS works very cooperatively with DOD
on many issues including long-term stewardship, remediation,
waste cleanup, regulatory and nonregulatory initiative on air,
waste, and water issues. We are certain and have documented
that these have improved the environment and saved the
Department of Defense both money and time. One activity with
the Navy saved them a million dollars a year.
Yesterday, ECOS created a new work group to work with DOD
on the encroachment issues regarding urban sprawl that was
mentioned previously. We have three other bodies that also work
with DOD on a variety of these issues.
Finally, we understand that the Department of Defense has
completed a study that it was directed to do as part of last
year's Events Reauthorization Bill. This study was commissioned
to gather additional data as well as examples of where
environmental statutes have thwarted military readiness. My
understanding that this is done on an annual basis but DOD has
not asked for State input on this. We encourage them to do so
and we stand ready to help them with State examples where we
can.
In short, ECOS urges the subcommittee, and Congress in
general, to reject these actions that have been requested. I
would be happy to take questions when you are ready.
[The prepared statement of Steven Brown follows:]
Prepared Statement of R. Steven Brown, Executive Director,
Environmental Council of the States
Thank you, Mr. Chairmen and members of the Committees, for
providing the Environmental Council of the States (ECOS) the
opportunity to present testimony on the Department of Defense's
Readiness and Range Preservation Initiative (RRPI). My name is Steve
Brown, and I am the Executive Director of ECOS.
Chris Jones is the Director of the Ohio EPA and the current
President of ECOS. He regrets that he could not be with you today, but
asks that I formally present the organization's testimony on this
important topic.
ECOS opposes RRPI because it could result in unintended and
undesirable outcomes, in particular, failure to account for the impacts
from military readiness activities on air quality, water quality and
public health. It could have severe public health repercussions.
ECOS also believes that the Department of Defense (DOD) has not
documented its problems with these Acts. In a broad survey of many ECOS
members conducted in the past few days at the 2004 ECOS Spring meeting,
no ECOS member could cite a single example of a case where a base had
asked for help with any air or waste rule in which the state agency had
been unable to accommodate the request. Most states said that bases had
no expressed any problems with compliance with these acts at all. We
discussed this matter with California, Texas, Virginia, Ohio, New
Jersey, Missouri, South Carolina and about a dozen others.
ECOS members passed a resolution at our spring meeting in 2003
opposing DOD's RRPI effort. The organization also sent a letter
outlining our opposition to RRPI to Congress in 2002. Those materials
are attached to my written testimony.
BACKGROUND
The Environmental Council of States is the national non-partisan,
non-profit association of state and territorial environmental
commissioners. Each State and territory has some agency, known by
different names in different states, that corresponds to the United
States Environmental Protection Agency. Our members are the officials
who manage and direct the environmental agencies in the States and
territories. They are the state leaders responsible for making certain
our nation's air, water and natural resources are clean, safe and
protected.
ECOS members strongly support military readiness, adequate training
and preparation for military personnel. Our members recognize that
military readiness requires DOD to train armed forces under realistic
conditions, including field-testing and evaluating weapons systems and
other military equipment. We further recognize that ``external''
factors such as urban and suburban sprawl and increasing wildlife
habitat pressures have affected DOD's training and equipment testing
and evaluation activities. However, we also note that there are
military activities with recognized environmental impacts.
States have the challenging job of front-line implementation of our
nation's environmental pollution laws. States have increased their
capacity and as environmental protection has become increasingly
important to the general public, more and more responsibilities have
been moved to the level of government best able to carry them out--
State and local governments--which are best able because they are
closest to the problems, closest to the people who must solve the
problems, and closest to the communities which must live with the
solutions.
Today states are responsible for:
Managing more than 75% of all delegated environmental programs;
Instituting 90% of all enforcement actions;
Collecting nearly 95% of environmental monitoring data; and
Managing all state lands and resources.
These responsibilities have become even more challenging in the
face of severe budget deficits. About two thirds of the $15 billion
states spend annually on environment and natural resources originate
from non-federal sources.
To achieve state goals of protecting the environment for its
citizens, it is imperative that the Department of Defense meet the same
goals required by others in society. It is critical that DOD be seen as
a role model for others in both the public and private sectors, by
meeting the same environmental standards.
DOD AND STATES WORK COOPERATIVELY TOGETHER
States have a long history of working cooperatively with DOD to
resolve competing needs. When a circumstance or situation arises that
requires an expedited response or an action out of the normal channel
of operations, states work creatively with the bases in their
jurisdictions to achieve mutually beneficial solutions.
For example, when there has been a need, states work with DOD
facilities to issue emergency permits (some even by telephone), ensure
that installation of well monitoring stations and other environmental
safeguards and procedures are not disruptive to normal base activities
as well as handle special requests as expeditiously as possible.
STATES AND THEIR BASES
Over the past weekend, ECOS held the Spring Meeting of its
membership. During this meeting, we polled our members about their
experiences working with both training and non-training bases of all
the services, both active and reserves. In every case, our members said
that either the base commanders had not expressed any problems with the
Acts, or that the state had made an accommodation under the law to the
base. Each member was committed to working with the military to resolve
problems under each of the Acts, should they occur. Many of the states
said they met regularly with the bases to anticipate problems and
resolve them before they escalated.
As an association, ECOS has several collaborative partnership
efforts with DOD on a variety of environmental programs. We host a
Federal Facilities Forum, which helps to foster linkages between the
Department of Defense and the Department of Energy with ECOS members.
The issues addressed by the ECOS Federal Facilities Forum include long-
term stewardship (LTS), remediation, regulatory and non-regulatory
initiatives on air, waste and water, sustainable development and
pollution prevention. The Forum also has a rich history of being
involved with innovative partnership efforts on the national level.
In addition, ECOS and participating federal agencies developed a
Memorandum of Understanding (MOU) to address LTS needs and activities
at federal clean up sites. ECOS LTS workgroup is helping to implement
the agreement to foster greater discussion and coordination between
ECOS and relevant federal agencies conducting both clean-up and
stewardship activities. The LTS workgroup also provides an active forum
for an exchange of expertise and approaches on best practices and
lessons learned.
ECOS educational arm, the Environmental Research Institute of the
States (ERIS) also houses a state-led coalition, the Interstate
Technology Regulatory Council (ITRC), working together with industry
and stakeholders to achieve regulatory acceptance of environmental
technologies.
ITRC consists of 40 states, the District of Columbia, multiple
federal partners, industry participants, and other stakeholders,
cooperating to break down barriers and reduce compliance costs, making
it easier to use new technologies, and helping states maximize
resources. ITRC brings together a diverse mix of environmental experts
and stakeholders from both the public and private sectors to broaden
and deepen technical knowledge and streamline the regulation of new
environmental technologies. ITRC accomplishes its mission in two ways:
it develops guidance documents and training courses to meet the needs
of both regulators and environmental consultants, and it works with
state representatives to ensure that ITRC products and services have
maximum impact among state environmental agencies and technology users.
The main partners for ITRC are DOE, DOD and EPA.
ECOS POSITION ON RRPI
ECOS is opposed to the effort by the Department of Defense (DOD) to
grant far reaching exemptions to three key environmental statutes, the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act, and the Clean Air Act.
Although the proposal addresses other laws, these three are at the core
of ECOS member agencies' missions.
The Readiness, Range and Preservation Initiative as presented, is
overly broad and will likely impair and preempt state and EPA authority
over a wide range of sites with munitions related contamination.
Affected sites include both operational ranges and ranges that have
been closed and transferred to other federal agencies or to private
owners. This initiative would directly supersede state sovereignty,
threatening the ability of states to protect the health of its
citizens.
There is no evidence that any of these statutes have adversely
impacted the military readiness training. Former EPA Administrator
Christine Todd Whitman stated in testimony on February 26, 2003 that
she knew of no instance where environmental regulations impacted
military readiness. In fact our organization does not know of any
circumstance where one of our members has been asked by base commanders
in their states, for special treatment or exemptions from environmental
requirements.
FLEXIBILITY ALREADY EXISTS
Further, existing laws provide flexibility to accommodate DOD's
current short-term concerns about regulatory impacts to military
training and readiness activities
All three laws already have provisions for the President or
Secretary of Defense to exempt DOD from its statutory and regulatory
requirements upon finding that it is necessary for national security or
in the interests of the United States. These three laws also contain
other provisions providing for flexibility.
Specifically, Section 188 of the Clean Air Act allows the President
to exempt DOD from requirements upon a finding of ``paramount national
interest.'' The exemption can last up to one year, but can be renewed.
Under the conformity requirements, DOD can already get a six-month
reprieve in response to emergencies. This exemption is also renewable
every six months.
Section 6001 of RCRA and Section 120j of CERCLA also contain
national security provisions, allowing the President to exempt DOD
facilities from any statutory or regulatory authority on a case-by-case
basis.
In 1995, then President Bill Clinton exercised his authority under
RCRA when he exempted the United States Air Force's operating location
near Groom Lake, Nevada from any applicable requirement for the
disclosure to unauthorized persons of classified information concerning
that operating location. Therefore, pursuant to 42 U.S.C. 6961(a),
Clinton exempted the facility from any ``Federal, State, interstate or
local provision respecting control and abatement of solid waste or
hazardous waste disposal that would require the disclosure of
classified information concerning that operating location to any
unauthorized person.''
THE CLEAN AIR ACT
This is perhaps the most problematic area for our members. As you
all are aware EPA recently released, under court order, a list of 474
Counties failing to meet air standards. These counties were identified
as areas not meeting federal health standards in regards to smog-
causing ozone. They either have air that is too dirty or the area is
contributing pollution to neighboring jurisdictions.
If states are to do their jobs to successfully meet the challenge
of getting these and other jurisdictions into compliance, then all
parts of the community need to contribute, including DOD facilities.
However the RRPI proposal would lead us down another less
environmentally sound path. It provides DOD facilities exemptions from
air statutory or regulatory requirements, allowing them abdicate
responsibility for any pollution they generate. This would serious
compromise state and federal efforts to attain and maintain the health
based-National Ambient Air Quality Standards (NAAQS).
Specifically DOD's RRPI would do two things that are not in the
best interest of the public.
1) It would provide DOD with an exemption from general air conformity
rules for up to three years for ``military readiness
activities.'' These activities are generally defined as all
training and operations relating to combat. The definition is
not clear on what constitutes a particular activity, so that
multiple re-basing or training activities could be redefined
from year to year, thereby allowing successive three-year
exemptions from general conformity. Activities could include
relocation of entire fleets of aircraft or other military
vehicles from one base to another.
2) RRPI would require EPA to approve a state implementation plan (SIP)
regardless of what impact the military installation had on the
area. As long as the applicable state air quality plan,
demonstrates that the health based air quality standards would
be met, except for the emissions stemming from military
readiness activities, it would be approved. As a consequence,
areas not meeting standards because of their bases, would have
no recourse and either have to rely on other members of their
area to pick up the slack to compensate for the DOD facility,
or be resigned to living in a dirty community. This would
directly impact the publics right to clean air and seriously
hinder the states ability to develop a SIP that is responsive
to the needs of its citizens
The RRPI air provisions undermine state planning efforts and
seriously impact the states ability to deliver basic environmental
services. It would contribute to a twisted process whereby air
emissions from DOD facilities would be essentially neglected and the
remainder of the community would have to compensate for their
delinquent neighbor. This would result in unfairly burdening other
community members as well as increasing the potential for serious
environmental and economic risk.
RCRA AND CERCLA
Under RRPI, sweeping, large-scale exemptions would be granted to
DOD, which would have a dire affect on states abilities to protect the
nation's water supplies. These exemptions would also seriously curtail
our remediation efforts on impacted sites. There is a long history of
widespread contamination resulting from military activities and ECOS
feels strongly, given the good track record of states in working with
DOD on these issues, that these provisions to preempt state authority
are unwarranted.
Military ranges that would be exempted under these provisions cover
thousands of acres in every state in the country. Military munitions
that would be exempted from RCRA under RRPI are also far reaching, and
could include munitions not used in training or testing as well as
munitions (including explosives and components) that may be discharged,
injected, dumped, spilled or placed off an operational range. In
addition, RRPI could also pre-empt state and EPA regulation of the
destruction of the Nation's stockpile of chemical weapons.
Specifically RRPI provisions include:
1) Pre-empting state RCRA authority to require investigation or clean
up of environmental contamination from used/fired munitions
with the external boundaries of a range, even if the
contamination has migrated off the range. Forty-eight states
are authorized to implement the base RCRA program in lieu of
EPA and 39 states are authorized to carry out the corrective
action program;
2) Pre-empting state authority under state Superfund or other remedial
authorities to require investigation or clean up of
environmental contamination from used/fired munitions within
the external boundaries of a range, even if the contamination
has migrated off the range;
3) Eliminating EPA's RCRA imminent hazard authority and normal
superfund clean up authority with respect to military
munitions; and
4) Removing the authority of the Agency for Toxic Substance and Disease
Registry to conduct health assessments for constituents of
military munitions.
CONCLUSION
ECOS is part of a long list of state associations and environmental
organizations that oppose this legislation, including the National
Association of Attorney's General, the Association of State and
Territorial Air Pollution Administrators, the Association of Local Air
Pollution Control Officials, the National League of Cities, the
National Association of Counties and scores of major environmental
associations.
We want to emphasize that DOD should complete the study it was
directed to do, as part of last years Defense Reauthorization bill. The
study was commissioned to gather additional data as well as examples of
where environmental statutes have thwarted military readiness. ECOS
also encourages DOD to solicit comment and feedback from the states and
other stakeholders on the report, in order to develop a more
comprehensive study of the issues on a nationwide basis.
ECOS urges both Sub-Committees to reject actions to exempt DOD from
RCRA, CERCLA and CAA requirements. The Readiness and Range Preservation
Initiative is essentially a solution in need of a problem and therefore
is unnecessary. ECOS encourages DOD to continue to work with states to
harmonize military readiness activities with environmental protection
so that public health and the environment are not compromised.
Thank you, Mr. Chairman, for this opportunity to testify.
Mr. Gillmor. Thank you very much, Mr. Brown.
Mr. Ronald Gastelum.
STATEMENT OF RONALD GASTELUM
Mr. Gastelum. Good afternoon, Mr. Chairman. I am pleased to
be here and participate in this very important discussion
hearing today. I do have a written comment I will submit for
the record. My comments will be shorter in recognition of our
time today.
My name is Ronald Gastelum, and I am the President and CEO
of the Metropolitan Water District of Southern California. MWD
is a consortium of 26 cities and public water districts that
provides drinking water to nearly 18 million people in Los
Angeles, Orange, San Diego, Riverside, San Bernardino and
Ventura counties.
I am testifying today on behalf of the Association of
Metropolitan Water Agencies (AMWA), the American Water Works
Association (AWWA), and the Association of California Water
Agencies (ACWA). AMWA is a nonprofit organization serving the
Nation's largest publicly owned drinking water agencies.
AWWA is the world's largest and oldest scientific and
educational association representing over 58,000 drinking water
supply professionals and 4,800 utilities that provide over 80
percent of the Nation's drinking water. ACWA is the largest
coalition of public water agencies in the country, representing
most of the public agencies in California. I would add that I
am also here representing the National Association of Water
Companies. Together we provide the drinking water and the
agricultural water to most of the population of the United
States.
We appreciate the opportunity to testify before this very
important joint hearing today for perchlorate contamination is
indeed a national issue. I want to observe that I found this a
very informative and unusual hearing. I have learned a lot
today listening to the testimony. I am also encouraged by the
Department of Defense's statements of commitment to protect our
public water sources. I convey that feeling as well.
The full extent of the problem is not yet known, however.
Although it is clear that perchlorate has been detected in the
water supplies serving many millions of people and farms
throughout the country, it is also clear that there is a link
between contamination of our water supplies and our country's
past and present military programs.
The Department of Defense is proposing language that
modifies environmental laws that would effectively exempt them
from Federal regulation of perchlorate contamination on, and
possibly near, what they have characterized as ``operational
ranges.'' We are here to question the need and necessity for
such a broad exemption bill at this time.
That is not to say, however, we would oppose an
appropriately crafted proposal that accomplishes what we hear
the Department of Defense says it needs. That is, the authority
to continue to use munitions and other implements containing
perchlorate and other chemicals at specific facilities without
violating the Resource Conservation and Recovery Act (RCRA) or
the Comprehensive Environment Response, Compensation, and
Liability Act (CERCLA).
In ongoing work constructively in the Department of
Defense, we ask that they accept the fact that their issue is
just one part of a much bigger problem. As characterized by Mr.
Dingell, the horse is definitely out of the barn. I would add
that it is running at a full gallop away from us. The concern
of water providers is not based on speculation or theory. The
documented extent of perchlorate contamination in public water
supplies is truly extraordinary.
I have maps in my testimony illustrating the extent of
releases known contamination throughout the United States. The
entire lower Colorado River and ground water basins in large
portions of Nevada, Arizona, and Southern California have been
contaminated with perchlorate clearly linked to past military
programs.
State and local public water suppliers and local
agricultural water industries had to shut down wells to face
the prospect of having to find alternative supplies in the
Cohijilla Valley and in the Imperial Valley in Southern
California. Tremendous agricultural production, tremendous
amount of percholorate contamination in the ground water
supplies. We have seen evidence of that in the lettuce crops
that are being identified with perchlorate contamination.
Public water agencies are being asked to pay for the cost
of remediation for a problem we did not cause. We believe both
objectives, military preparedness and protection of public
health can be met. What we are seeking is a partnership with
the Federal Government to do our best to be public projectors
today, not decades from now. In this partnership we are seeking
tangible recognition of the equal priority of protecting the
Nation's water supplies.
I would observe this. As we are preparing our military, as
we are sending our military abroad to defend us, we are making
sure that we have provided them with the latest training. We
haven't talked about this, but we would absolutely make sure
that they have clean water. They could not survive without
clean water. There is clearly a recognition that you need both.
On a broader scale we are asking you today is that we put into
action as we address the perchlorate contamination issue that
commitment.
So what are we offering as a solution? If the Congress
deems it necessary in providing for the national defense to
grant the Department immunization, the exemption should be
narrowly defined to apply to specific essential facilities and
should be periodically reviewed by Congress.
We were encouraged today to hear the Department say
categorically the exemption would not apply to contractors. We
have had major problems with contractors and if, indeed, that
is the case, we would urge the language of any exception
clearly specified that it would not apply to contractors.
Additional work should be done to narrow the range and make it
abundantly clear which facilities are affected.
The Department should be directed by a date certain to
identify and monitor contamination at affected facilities and
report results to the EPA and the public. This is necessary in
order to detect contamination before it has migrated beyond
boundaries and into a source of water used for domestic,
municipal, or agricultural purposes.
Location and extent of that migration should also be
identified and appropriately reported. Again, you heard today
the Department of Defense's commitment to do that. We are
looking for specifics and dates certain by which we will know
exactly what the extent of the problems are.
Finally, we would suggest a new national strategy should be
developed to fund the assessment and remediation of
percholorate contamination wherever it exist in public water
supplies. Current law and financial strategy will invariably
lead to attractive litigation where the contamination spreads.
This would not meet our collective responsibility to the public
or the environment. We do not accept that we have remedies,
public water systems, the public at large, to address
contamination that has left these sites.
What it amounts to is getting in line with everybody else
to go through a very cumbersome litigation strategy unless we
do, indeed, have a partnership with the Federal Government to
proactively get in, identify these sites, and clean them up.
That is what we are seeking. We look forward to working with
this committee and the Department of Defense. Thank you, Mr.
Chairman.
[The prepared statement of Ronald Gastelum follows:]
Prepared Statement of Ronald Gastelum, President and CEO, Metropolitan
Water District of Southern California on Behalf of the Association of
Metropolitan Water Agencies, American Water Works Association, and the
Association of California Water Agencies
Good morning, my name is Ronald Gastelum, and I am the President
and CEO of the Metropolitan Water District of Southern California. MWD
is a consortium of 26 cities and public water districts that provides
drinking water to nearly 18 million people in Los Angeles, Orange, San
Diego, Riverside, San Bernardino and Ventura counties.
I am testifying today on behalf of the Association of Metropolitan
Water Agencies (AMWA), the American Water Works Association (AWWA), and
the Association of California Water Agencies (ACWA). AMWA is a
nonprofit organization serving the nation's largest publicly owned
drinking water agencies. AWWA is the world's largest and oldest
scientific and educational association representing over 58,000
drinking water supply professionals and 4,800 utilities that provide
over 80 percent of the nation's drinking water. ACWA is the largest
coalition of public water agencies in the country, representing the 447
public agencies, which deliver 90 percent of the water used by cities,
farms, and businesses in California.
We appreciate the opportunity to testify before this very important
joint hearing today. Perchlorate contamination is a national issue.
The full extent of the problem is not yet known, although it is
clear that perchlorate has been detected in the water supplies serving
many millions of people and farms throughout the country. It is also
clear that there is a link between the contamination in our water
supplies and our country's past and present military programs.
The Department of Defense is proposing language that modifies
environmental laws that would effectively exempt them from federal
regulation of perchlorate contamination on, and possibly near, what
they have characterized as ``operational ranges.'' We are here to
question the need and necessity for such an exemption at this time.
We would not oppose an appropriately crafted proposal that
accomplishes what we hear the Department of Defense says it needs. That
is, the authority to continue to use munitions and other implements
containing perchlorate and other chemicals at specific facilities
without violating the Resource Conservation and Recovery Act (RCRA) or
the Comprehensive Environment Response, Compensation, and Liability Act
(CERCLA).
The proposal by the Department of Defense (D.O.D.) would amend RCRA
and CERCLA to redefine the terms ``solid waste'' and ``release.'' These
re-definitions would inhibit the ability of EPA, its state partners or
water systems to prevent contamination and the loss of drinking water
sources. We are concerned that amending these statutes in this way
could endanger the health of Americans, including soldiers and their
families living on or near military facilities.
The D.O.D. proposal would require human health and environmental
affects to occur beyond the boundaries of an operational range before
action could be taken. Acting only after the damage has been done could
result in unnecessary public health risks, unacceptable losses of water
sources, and high costs to clean up water supplies and/or secure
alternative sources.
Worse, even in the event of contamination beyond the boundaries of
a range, the language would appear to deny accountability to clean up
sources and prevent further migration of contamination.
The problems associated with the D.O.D. proposal are compounded by
language enacted last year to redefine ``operational range.'' The
geographic areas designated to be operational ranges, according to the
word's new definition, could be interpreted to be nearly limitless and
include contractor facilities. The term is overly broad and could
provide too many opportunities for D.O.D. to block EPA, its state
partners or even water systems from requiring action to protect a water
source threatened with contamination from or on a defense-related site.
D.O.D. officials have stated that the only goal of the re-
definitions is to avoid a situation in which the firing of weapons on
ranges is considered a ``release'' under RCRA or CERCLA. If this is the
case, then we encourage the Administration to narrow the scope of its
initiative to reflect this concern. We believe that our armed forces
should be able to conduct weapons training, yet still cleanup hazardous
waste on its ranges that threaten sources of drinking water both on and
off military installations.
This may only be a definitional or drafting problem. However, based
on the limited information available to us to date, we think the
problem is greater. The current proposal is too broad. But the bigger
issue is the proposal's failure to respond to the basic public health
threat presented by the perchlorate that has already escaped into the
country's water supplies.
We frankly do not believe we can meet our responsibility to the
public if we cannot identify with more certainty which facilities would
be exempted, their proximity to public water supplies, how the
Department will assure that it will contain existing and future
perchlorate contamination at these facilities, and when the perchlorate
contamination in drinking and agricultural water supplies will be
remediated.
The concern of water providers is not based on speculation or vague
theory. The documented extent of perchlorate contamination in public
water supplies is extraordinary. For your convenience and review, I am
enclosing, along with our written comments, some maps that we hope will
illustrate the extensive, almost ice burg-like presence of perchlorate
as a moving, persistent threat to Nation's water resources: First I
refer you to a map detailing drinking water resources in California
that have been curtailed by perchlorate. Our second map identifies
perchlorate releases as they are currently known throughout the United
States. Finally, we have enclosed a third map to highlight the location
of perchlorate manufacturers and users within the United States. These
mapping details suggest that we are only beginning to understand the
magnitude of perchlorate as a growing national challenge.
The entire lower Colorado River and groundwater basins in large
portions of Nevada, Arizona, and Southern California have been
contaminated with perchlorate clearly linked to past military programs.
State and local public water suppliers and local agricultural water
districts have had to shut down wells and face the prospect of having
to find alternative supplies. Public water agencies are being asked to
pay for the costs of remediation for a problem we did not cause.
Perchlorate is a moving target; it has been released into the
environment and will likely continue to be released into the
environment in locations throughout the country on land used for
important and sensitive military operations. If the Defense Department
is willing to develop and provide more information about these sites,
concerned water providers would be better equipped to evaluate the
threat of perchlorate migration in a cooperative and strategic manner.
We are really only beginning to understand the magnitude of this
problem and the potential impacts that we must work together at the
federal, state and local levels to address. Just as we need to monitor
existing areas of contamination, it is also imperative that we work
cooperatively to develop strategies to prevent future contamination
sites.
What is the solution? We would offer the following:
1. If the Congress deems it necessary in providing for the national
defense to grant the Department an exemption, the exemption
should be narrowly defined to apply to specific essential
facilities, and should be periodically reviewed by the
Congress.
2. The Department should be directed by a date certain to identify and
monitor contamination at affected facilities and report results
to the EPA and the public. This is necessary in order to detect
contamination before it has migrated beyond the boundaries, and
into a source of water used for domestic, municipal, or
agricultural purposes. The location and extent of that
migration should also be identified and appropriately reported.
3. A new national strategy should be developed to fund the assessment
and remediation of perchlorate contamination wherever it exists
in public water supplies. Current law and financial strategy
will invariably lead to protracted litigation while the
contamination spreads. This would not meet our collective
responsibility to the public or the environment.
We thank you for this opportunity to testify. We are committed to
working cooperatively with the Department of Defense and the Congress
to both support our national defense and protect the public's water
supplies.
Mr. Gillmor. Thank you.
Mr. S. William Becker.
STATEMENT OF S. WILLIAM BECKER
Mr. Becker. Thank you, Mr. Chairman. My name is Bill
Becker, Executive Director of STAPPA the State and Territorial
Air Pollution Program Administrators and ALAPCO the Association
of Local Air Pollution Control Officials the two national
associations of air quality officials in 53 States and
territories and over 165 major metropolitan areas throughout
the country.
We really appreciate this opportunity for provide our
association's perspectives on proposed changes to the Clean Air
Act to exempt military readiness activities of the Department
of Defense.
I want to be clear from the outset. The issue before us is
not whether State and local air pollution control agencies
support military readiness activities and their timely
implementation. Of course we do. The issue is whether
additional exemptions, and these are exemptions, beyond those
that already exist are necessary.
We believe they are not. Our association is opposed to such
exemptions when they were proposed last year and the year
before. We oppose them just as forcefully now. In fact, we
firmly believe the exemptions DOD seeks are not only
unnecessary, but unjustified and unfair as well, and would
improperly compromise the intent of the Clean Air Act and the
responsibilities of State and local officials to protect public
health and safeguard air quality.
Despite decades diligent efforts, at least 160 million
people still live in areas with unhealthy air. Four hundred and
seventy-four counties throughout the country violate the 8-hour
ozone standards. Nearly 60 areas violate the PM10
standards. About 145 counties appear to be in violation of the
PM2.5 standard. At least a dozen areas violate the
carbon monoxide national standard.
DOD's proposal would exacerbate these air quality problems
by exempting the military from statutory requirements for
general conformity that currently hold it like all other
sources of air pollution accountable for the emissions it
creates. Further, the amendments would require EPA to improve
an area as being in attainment even when the area, in fact, is
not.
Notwithstanding DOD's persistence in seeking exemptions
from the Clean Air Act, the Department, as has been pointed out
many times today, has not backed up its request with a single
example of a military readiness activity that has been
prevented or delayed. In fact, general conformity compliance
and military readiness have peacefully coexisted and there is
no evidence to suggest that successful achievement of these
dual purposes will not continue.
Further, if an instance were to arise where flexibility
could deviate from law or regulation as necessary for the
purposes of timely military readiness, both the Clean Air Act
and the general conformity regulations already provide DOD
ample flexibility to carry out its duties as necessary. I want
to site four examples.
First, States routinely set aside a emission allotments in
their State implementation plans to address special
circumstances whether it is for new source growth or for
military readiness activities. The set up of mentioned
allotments is prevalent in many States' plans.
Second, the general conformity requirements don't apply
unless the emissions are above de minimis levels, unless the
emissions are significant. Congress and the EPA define
significant anywhere from 25 to 100 tons per year. Third, as
has been discussed, Section 118(b) of the Clean Air Act allows
the President to exempt DOD from any requirements of the
statute upon finding that it is in the ``paramount interest of
the United States to do so.''
Finally, under the general conformity regulations assuming
the emissions exceed the de minimis threshold, DOD is allowed
to suspend compliance in the case of emergencies, which by
definition include terrorist activities and military
mobilizations, and also to conduct routine movement of
material, personnel, and mobile assets.
However, DOD's proposal would create a blanket exemption
for military readiness activities, allowing them to avoid
compliance for 3 years, irrespective of the need for the
exemption or the impact on air quality and public health. As a
result, the military would circumvent the process to which all
other sources of air pollution are subject and would only be
required to begin taking responsibility for its emissions if
the exempted activity is still occurring after 3 years.
DOD has asserted that the emissions associated with
military readiness activities are minor on the order of one-
half of 1 percent of an area's overall emissions inventory.
However, the proposed amendments place no limit on emissions to
result from an exempted activity. Even more significant,
however, is the fact that areas with unhealthful air don't have
the luxury of overlooking any amount of pollution.
Allowing the military to unilaterally decide that its
emissions need not remain within the allotted emissions budget
of a State's implementation plan will result in excess
emissions and unhealthy air. This is unfair to the public's
health and it is unfair to other regulated sources who may have
to make up for these excess emissions.
The only remedy DOD has offered in return for creating
excess emissions without justification is to simply ignore the
emissions and declare the air clean, even though it is not.
Such an approach wholly undermines the integrity of the
Nation's health-based air quality standards and the ability of
State and local air pollution control agencies to achieve clean
air goals.
Our associations fully recognize that under certain
circumstances DOD legitimately must be able to take immediate
action for the purposes of military readiness, with no time for
environmental compliance. Current statutory and regulatory
flexibilities already provide for such action to take place
unencumbered. What DOD seeks, however, are free 3-year passes
for military activities to pollute at the expense of air
quality unnecessarily placing at risk the health of those who
live and work on, near or downwind of military bases.
Our associations respectfully urge Congress to reject these
proposed amendments to the Clean Air Act and to urge the
military, like all other sources of emissions, to take
responsibility for the pollution it creates and do its fair
share to clean up our Nation's air. Thank you.
[The prepared statement of S. William Becker follows:]
Prepared Statement of S. William Becker, Executive Director, State and
Territorial Air Pollution Program Administrators and the Association of
Local Air Pollution Control Officials
Good morning, Mr. Chairman and members of the Subcommittee. I am
Bill Becker, Executive Director of STAPPA--the State and Territorial
Air Pollution Program Administrators--and ALAPCO--the Association of
Local Air Pollution Control Officials--the two national associations of
air quality officials in 53 states and territories and over 165 major
metropolitan areas across the United States.
The members of STAPPA and ALAPCO have primary responsibility under
the Clean Air Act for implementing our nation's air pollution control
laws and regulations and, even more importantly, for achieving and
sustaining clean, healthful air throughout the country. Accordingly, we
are pleased to have this opportunity to provide our perspectives on
proposed changes to the Clean Air Act to exempt military readiness
activities of the U.S. Department of Defense (DOD). Our associations
opposed such Clean Air Act exemptions when they were proposed last year
and the year before, and we oppose them just as forcefully now.
Let me be clear. The issue before us is not whether state and local
air agencies, or Congress, or the nation as a whole, support military
readiness activities and their timely implementation--of course we do.
The issue is whether additional exemptions beyond those that already
exist are necessary. And STAPPA and ALAPCO believe they are not. In
fact, we firmly believe the exemptions DOD seeks are not only
unnecessary, but unjustified and unfair as well, and would improperly
compromise the intent of the Clean Air Act and the responsibilities of
state and local officials to protect public health and safeguard air
quality.
As we discuss the proposed amendments and their impact, it is
important to do so in the appropriate context. Perhaps the most complex
air quality problem our nation faces is achievement and maintenance of
the health-based National Ambient Air Quality Standards (NAAQS).
Notwithstanding decades of diligent effort, at least 160 million
Americans still live in areas with unhealthful air quality.
One week ago, EPA designated 125 metropolitan areas (covering 474
counties) throughout the country as nonattainment for the 8-hour ozone
NAAQS. The health and environmental impacts associated with elevated
levels of ozone are serious, including aggravation of asthma and
chronic lung disease, permanent lung damage, reduced lung function,
irritation of the respiratory system and cardiovascular symptoms.
Although even healthy individuals can be at risk from exposure to
elevated levels of ozone, children, seniors and those with compromised
respiratory systems are especially vulnerable.
Pollution from airborne particulate matter also plagues our nation.
In fact, fine particles pose the greatest health risk of any air
pollutant, resulting in as many as 30,000 premature deaths each year.
These fine particles are also responsible for a variety of other
adverse health impacts, including aggravation of existing respiratory
and cardiovascular disease, damage to lung tissue, impaired breathing
and respiratory symptoms, irregular heart beat, heart attacks and lung
cancer. Nearly 60 areas of the country continue to violate the PM10
standard. Moreover, based on preliminary data, it appears that PM2.5
concentrations in as many as 145 counties across the nation exceed the
health-based standard.
In addition, at least a dozen areas of the country experience
unacceptable levels of carbon monoxide, which can affect the central
nervous system and poses a special risk to those with heart disease.
The Clean Air Act amendments DOD proposes would exacerbate these
air quality problems. These amendments would exempt DOD from statutory
requirements that currently hold the military, like all other sources
of air pollution, accountable for its emissions. Specifically,
emissions caused by military readiness activities conducted in areas
with air quality that does not meet federal health-based standards
would be exempt from the ``general conformity'' provisions of the Act,
which require that such emissions conform to the State Implementation
Plans designed to meet the health-based air quality standards.
These exemptions would allow military readiness activities--alone
among the activities that state and local air pollution control
agencies regulate--to cause or contribute to violations of the NAAQS,
increase the frequency or severity of such violations or delay timely
attainment of the standards or interim milestones. Further, the
amendments would require EPA to approve an area as being in attainment
with the ozone, carbon monoxide and PM10 air quality standards--even
when the area, in fact, is not in attainment--if the area would be in
attainment but for air pollution from military readiness activities.
Notwithstanding DOD's persistence in seeking exemptions from the
Clean Air Act, the Department has not backed up its request with a
single example of a military readiness activity that has been prevented
or delayed due to general conformity requirements. In fact, general
conformity compliance and military readiness have peacefully coexisted
and there is no evidence to suggest that successful achievement of
these dual purposes will not continue.
Further, although there has yet to be an instance where flexibility
to deviate from law or regulation was necessary for the purposes of
timely military readiness, if one were to arise, both the Clean Air Act
and the federal regulations implementing the statute's general
conformity provisions already provide DOD ample flexibility to carry
out its duties as necessary.
Under Section 118(b) of the Act, the President may exempt DOD from
any requirements of the statute upon finding that it is in the
``paramount interest of the United States to do so.'' Further, under
the general conformity regulations, which apply only if emissions are
above a specified de minimus level, DOD is allowed to suspend
compliance in the case of emergencies--which, by definition, include
terrorist activities and military mobilizations--and also to conduct
routine movement of material, personnel and mobile assets, such as
ships and aircraft, provided no new support facilities are constructed.
However, the statutory amendments proposed by DOD would create a
blanket exemption for military readiness activities, allowing them to
avoid compliance for three years, irrespective of the need for an
exemption or the impact on air quality and public health. As a result,
the military would circumvent the process to which all other sources of
pollution are subject and would only be required to begin taking
responsibility for its emissions if the exempted activity is still
occurring after three years.
Although DOD has asserted that the emissions associated with
military readiness activities are minor--on the order of one-half of 1
percent of an area's overall emissions inventory--we note two critical
points. First, the amendments proposed by the Department place no limit
on emissions to result from an exempted activity. Second, and more
importantly, areas with unhealthful air do not have the luxury of
overlooking any amount of pollution, let alone the unchecked level of
emissions that would be allowed under the proposed amendments.
Under the Clean Air Act, states are responsible for developing
State Implementation Plans--or SIPs--for areas that violate air quality
standards. A SIP must contain a detailed blueprint of how a
nonattainment area will achieve the standard by the applicable
deadline, including an inventory of all emission sources in the area, a
breakdown of the level of emissions from each and a specification of
the control measures to be implemented.
A critical element of the SIP is the emissions budget, which is the
amount of air pollution an area can accommodate and still meet the
health-based air quality standard. This budget is divided among all
sources in the area, which must then operate so that their respective
emissions remain within their allotment of the budget. Allowing the
military to unilaterally decide that its emissions need not remain
within its allotted budget will result in excess emissions and
unhealthy air. Our associations find this unacceptable to public health
and unfair to other regulated sources.
The only remedy DOD has offered in return for creating excess
emissions without justification is to simply ignore the emissions and
declare the air clean, even though it is not. Such an approach wholly
undermines the integrity of the nation's health-based air quality
standards and the ability of state and local air pollution control
agencies to achieve clean air goals. Because state and local air
agencies will still feel the responsibility to deliver truly healthful
air to the public they serve, they will have no choice but to return to
other sectors and ask for additional reductions in order to make up for
the excess emissions from military facilities.
Our associations fully recognize that under certain circumstances
DOD legitimately must be able to take immediate action for the purposes
of military readiness, with no time for environmental compliance.
Current statutory and regulatory flexibilities already provide for such
action to take place unencumbered. The Clean Air Act exemptions sought
by DOD, however, go far beyond what is necessary for military readiness
and, instead, provide free, three-year passes for military activities
to pollute at the expense of air quality, unnecessarily placing at risk
the health of those who live and work on, near or downwind of military
bases.
In the clear absence of even one instance in which general
conformity requirements under the Clean Air Act have in any way impeded
military readiness, STAPPA and ALAPCO respectfully urge Congress to
reject DOD's proposed amendments to the Clean Air Act and to urge the
military, like all other sources of emissions, to take responsibility
for the pollution it creates and do its fair share to clean up our
nation's air.
Thank you.
Mr. Gillmor. Thank you, sir.
We will now go to Ms. Sylvia Lowrance.
STATEMENT OF SYLVIA K. LOWRANCE
Ms. Lowrance. Thank you, Mr. Chairman. My name is Sylvia
Lowrance and I retired from the U.S. EPA about 1\1/2\ years ago
after 24 years with the agency. While there I served----
Mr. Gillmor. Too young to retire.
Ms. Lowrance. I served in the Superfund program and the
RCRA program as well as the Enforcement Program. I am here
today representing the National Environmental Trust, NRDC, and
the League of Conservation Voters. Others have articulated
these issues very well and in the sake of time will make only a
few points.
My first one is I don't believe there is a conflict between
readiness and environmental laws. I am a so-called Air Force
brat and I think there is an unambiguous need to make sure that
our soldiers are the best prepared in the world. However, I did
spend much of my career working with dedicated people at DOD
and at EPA who were driven by the principle that government can
perform its mission and be a model of environmental protection.
DOD and the States and EPA have worked together to make
tremendous progress in the last 20 years in environmental
protection. These proposals, I think, tipped this balanced
relationship and make it very one sided. Let me explain why I
say that. We talked a lot. The emissions proposal, I believe,
is broad. In fact, broader than has been brought out today.
On its face the proposal eliminates EPAs and State RCRA
authorities to secure sampling, to do investigations, and clean
up serious problems caused by emissions on operating ranges.
Citizen authority for that cleanup under RCRA is also gone
under the amendments. Authorities under Superfund to
investigate and respond to serious releases on ranges are
eliminated.
What is left? One authority. The sole authority remaining
under this proposal is CERCLA Section 106 authority to respond
to imminent threats. Even there I question how EPA can show
that imminent hazard at the facility if its sampling and
analysis authorities are gone. They cannot investigate.
I also think that the scope of 106 has changed. Other
proposals are also troubling. For example, the 3 year
conformity exemption under the Clean Air Act is unconditional.
I in looking have not been able to find any assessment of the
air quality impacts of that provision.
Third, I don't believe the facts presented merit this
action. I think we have heard a lot about one or two cases
today. There are many existing routes to resolve these problems
today that are untested for those cases. Most States' personnel
I have worked with take great pride in working out their issues
with locals and with your State governments.
There is a process for elevation to Washington and these
don't just come in to a staff person in Washington. Executive
orders get disputes if there are specific cases out there to
the Attorney General of the United States, the Administrator of
EPA, and the head of the Office of Management and Budget where
they can be resolved.
We talked about today the national security exemption. It
has not been used for the matters addressed in this bill today.
I think it could quite easily be used when we are in the middle
of a war.
Finally, I don't think exceptions merit such sweeping
change. There is a real difference of opinion we've heard today
on the scope of this legislation and how much of the waste and
range that it encompasses and how big it is. I would hope that
we can gain a better understanding of why we have such a large
gap in the views. I think many provisions in the drafting are
very ambiguous. I think that they need to be clarified.
If they are enacted without clarification, I would just
point out that disputes between DOD and EPA under executive
orders go to either the Justice Department or the Office of
Management and Budget for the executive branch's position.
These, I think, would end up being decided not by Congress but
by the Office of Management and Budget.
Last and most importantly, I think cutting out the
regulators and making DOD self-regulating for these ways
undercuts the government's credibility in the eyes of its
citizens. EPA and the States play a very critical role for
citizens in establishing the legitimacy of DOD's actions.
I think the elimination of this oversight authority will
simply bring more mistrust, not less. Thank you.
[The prepared statement of Sylvia K. Lowrance follows:]
Prepared Statement of Sylvia K. Lowrance Representing The National
Environmental Trust, The Natural Resources Defense Council, and The
League of Conservation Voters
I am Sylvia K. Lowrance and I am pleased to be here representing
the National Environmental Trust, The Natural Resources Defense
Council, and the League of Conservation Voters. I appreciate the
opportunity to appear before the Subcommittees today to share my
perspective on the Administration's proposed exemptions for the
Department of Defense from national environmental laws. I retired from
EPA in 2002 after about 24 years at the Agency. During that time I was
privileged to serve in a number of senior management positions in the
Superfund, Hazardous Waste and Enforcement Programs. In each of these
positions I was involved in policies and issues pertaining to federal
agency compliance with environmental laws.
During my time in public service, I worked with many dedicated
individuals in agencies throughout the federal government, and at DOD
in particular, who were committed environmental protection. Despite
significant fiscal constraints and institutional barriers, the federal
government has made great progress in complying with environmental laws
and in seeking to become environmental stewards. This change was
fostered, in no small part, by our government's long standing principle
that the federal government should comply with environmental laws in
the same manner and to the same extent as private parties, and should
serve as a model for others. This fundamental principle has been
adopted by the political leadership of many Administrations.
Unfortunately, the proposals to exempt DOD from environmental laws mark
a departure from this long standing commitment. These proposals are not
justified by the facts and do not merely ``confirm'' long standing
policy, as DOD asserts. These proposals roll it back the principles
that have guided the government's environmental stewardship for
decades. They could cause real harm to the health and welfare of our
servicemen and women and their families living on military bases across
the country. And they could impact on the public health of the
surrounding communities.
The DOD asserts that ``encroachment-induced restrictions are
limiting realistic preparations for combat'' and that many of the
proposed exemptions are necessary to ensure military readiness by
protecting live fire training opportunities for the men and women of
our Armed Forces. As the daughter of a career Air Force officer and
sister of two brothers who served collectively in three wars, I
sincerely appreciate the unambiguous need today to assure that our
nation's military is the best trained and most prepared in the world.
Nothing less is acceptable for our soldiers and their families.
I believe that military preparedness and environmental protection
can go hand in hand. Unfortunately, these proposals appear to tip
today's careful balance without adequate justification, and they
deserve careful scrutiny. First, the case specific factual
justification for these proposals should be closely examined to assure
they justify such extraordinary changes in environmental laws. Second,
the legislative proposals themselves should be carefully examined to
assure that they are protective and appropriate national environmental
policies. And finally, specific language should be scrutinized to
assure that it achieves the stated purpose, addresses the stated need
and does not have a broader effect than intended.
As detailed below, the proposed DOD exemptions unfortunately fall
short of meeting any of these criteria.
As to the factual justification, most are justified based upon
speculation about problems in the future, not based upon real world
problems posed today. As recently as last year former EPA
Administrator, Governor Christine Todd Whitman said that she does not
``believe that there is a training mission anywhere in the country that
is being held up or not taking place because of an environmental
protection regulation.'' (Governor Christine Todd Whitman,
Congressional Testimony before the Committee on Senate Environment and
Public Works, February 26, 2003)
DOD's Fact Sheets, accompanying the proposed amendments, cite few
actual cases as support for these proposals; where they do, it is far
from clear why a national exemption is merited by the case. Examples
cited to justify sweeping changes to the CAA conformity provisions are
justified by cases in which conformity was in fact achieved without
exemptions. DOD cites the Massachusetts Military Reservation as a site
at which the National Guard must travel to other locations to train due
to restrictions on live fire training. MMR is located on Cape Cod over
a sole source aquifer that serves hundreds of thousands of people. It
is an extraordinary case. Severe contamination occurred over decades.
An examination of the facts at MMR shows that had the regulators not
had the legal tools to get the attention of DOD to the problems at
hand, public health and community concerns would not have been
addressed in as timely or comprehensive fashion. In fact, prior to EPA
issuing its orders, the public had been trying to engage the base on
these issues for two decades. Now, while some controversy remains,
assessment and cleanup are proceeding, and relationships between the
base and the community and regulators have improved. Response to
contaminated sites, whether publicly or privately owned, is always
controversial. Over the last 25 years, we have learned there is only
one way to deal with that controversy--through openness with the public
by regulators and those responsible for the site and aggressive
programs to involve citizens in decision making about the cleanup.
Exceptional cases do not justify sweeping legislative proposals. In
my experience, while exceptional cases do occasionally arise, the vast
majority of environmental issues are dealt with at the local and State
level without problem. I have found that DOD base level personnel take
great pride today in working through environmental issues with their
communities and in partnership with regulators. Where exceptions arise,
there are means to creatively work them through. There are existing
means to elevate these cases, from the field to DOD and EPA
Headquarters for resolution and there are executive orders to further
elevate controversies to the Justice Department and Office of
Management and Budget. And most importantly to the situation at hand,
there are national security exemptions in CERCLA, RCRA and the Clean
Air Act that were enacted by Congress. In a March 7, 2003 memorandum,
Deputy Secretary of Defense Paul Wolfowitz called upon all the services
to have in place procedures to ensure that any cases involving the need
for a national security exemption under these laws are raised in a
timely fashion. He states ``In the vast majority of cases, we have
demonstrated that we are both able to comply with environmental
requirements and to conduct necessary military training and testing. In
those exceptional cases where we cannot . . . we owe it to our young
men and women to request an appropriate exemption.'' Since this
memorandum, no exemption requests have been sought publicly and there
has been no use of these exemptions to address DOD's readiness
concerns. And finally, it has been my experience that where the
executive branch has difficulty working through an exceptional case,
members of Congress can and do get involved and facilitate a tailored
and narrow resolution, without setting overbroad precedents in national
law. None of these existing means have been fully tried to respond to
DOD's readiness concerns. Instead of using these existing tools to
resolve specific cased, major legislative changes are proposed.
The DOD proposals constitute poor environmental policy and as
drafted, contain many technical ambiguities. In terms of policy, the
proposals represent a step backwards for public health and
environmental protection. They provide DOD with exemptions that can
cause significant harm to public health and the environment on and off
base at military facilities.
The proposals deprive States and EPA of much needed authorities to
ensure that public heath and the environment are protected, to ensure
that problems are addressed before they become more widespread(and
costly) to address and dramatically alter today's system of checks and
balances between the regulators and DOD. There are numerous examples of
this:
1. RCRA
Protections afforded by the nation's hazardous waste laws are keyed
to whether a material is considered a ``solid waste'' as defined in
RCRA. If so, provisions for proper management of hazardous wastes and
cleanup of waste contamination may be triggered under the law. The law
also establishes a strong role for States and EPA to ensure that these
protections are carried out, and provides the authority for them to do
so. The DOD proposal undercuts the law by exempting from the category
of solid waste, ``military munitions, including unexploded ordinance
and constituents thereof that are or have been deposited, incident to
their normal and expected use, on an operational range and remain
there.'' This exemption eliminates key authorities under RCRA and
jeopardizes use of this important environmental law to protect public
health and the environment at military facilities. For these exempted
wastes, the State, EPA and citizen authority to secure cleanup and
investigate are eliminated. The most obvious examples include:
--EPA's authority under section 7003 of RCRA to address imminent
hazards posed by solid waste on operational ranges is
eliminated;
--EPA's authorities under RCRA to sample and inspect under section 3007
and authorities to compel corrective action are eliminated or
constrained;
--State authority to compel investigations and cleanup on operational
ranges is preempted;
--State and citizens' ability to seek redress in Court when an imminent
and substantial endangerment may exist is eliminated.
It is important to note that imminent hazard authorities are not
routinely used. They exist to allow environmental officials to respond
to very serious situations. The mere existence of these authorities
acts as an incentive for the regulated community to avoid such hazards
in the first instance. Given their sparse use, it is very difficult to
understand the need for these changes. Similarly, authorities to
require investigation of releases are used to determine, as early as
possible, whether suspected problems have in fact occurred. We have
learned the importance of early detection and response over the last 25
years. The more the contamination has migrated, the higher the
likelihood of public health and environmental impacts and the higher
cost of cleanup.
These RCRA amendments are even more troubling due to their very
broad scope. First, it is keyed not simply to the nature of the
material, but to a location (a range) and its status (operational or
non-operational). Under this complex definition it appears that an
inactive range is not synonymous with a range being non operational,
and fully subject to RCRA. This means that exemptions could last for
many years, whether active munitions training is occurring or not. For
example, the definition of operational range appears to be very broad.
It is neither time limited nor does it contain significant
constraints on the area that may be included as part of the range.
Certainly, DOD may legitimately desire to make a range inactive, but
keep it ready for operations in the future. This would keep EPA, States
and citizens from using RCRA authorities at these facilities for some
time. I would urge an examination of data on the number and frequency
with which sites ceased to be operational in the past to help in
evaluating the breadth of this term. Second, the solid waste exclusion
goes beyond munitions to cover not only the munitions, but also
`unexploded ordinance, and the constituents thereof, that are or have
been deposited, incident to their normal and expected use. This
language appears to exempt many activities on operational ranges from
RCRA, not simply the firing of munitions.
There are also a number of less obvious problems in these
amendments where there is ambiguity in how the provisions could be
interpreted. For example, one way a material becomes a solid waste at
an operational range is if it has migrated off-site. It is not clear
whether this provision would then be interpreted to limit RCRA
authorities to materials that migrated offsite, or whether it would
authorize RCRA authorities to be used to secure cleanup of the source
and contamination inside the range. DOD's Fact Sheets contain a number
of assertions regarding the scope of the exemption and their intent
that do not do not appear in legislative text. I would suggest these
intentions be clarified in legislative text.
Finally, EPA's munitions rule, promulgated in 1997, exempts
munitions landing on an operational range as a result of their intended
use from regulation as a solid waste (and therefore, exempts them from
being a hazardous waste). It further clarifies that munitions landing
offsite, that are immediately recovered and rendered safe are not
within the statutory definition of solid waste. Taken together these
provisions allow DOD training to go forth expeditiously. The munitions
rule provides adequate assurances to DOD that their training on
operational ranges will not be regulated, while still providing states
and EPA important authorities to respond to immediate threats at
ranges.
2. CERCLA:
DOD's proposes to amend CERCLA's definition of release. Like the
solid waste definition under RCRA, the definition of release is a key
to jurisdiction under many of CERCLA's environmental response
provisions. The proposal excludes from the term release, the
``deposit'' or ``presence'' on an operational range of any military
munitions. It goes on to state that this change is not intended to
affect the President's authority to take action under the imminent
threat authorities of section 106(c) of CERCLA.
This section likewise is problematic. It precludes EPA's use of
other CERCLA authorities that are conditioned on a release or a
threatened release. For example, EPA's ability to investigate and
perform sampling under section 104 is taken away. This presents a
catch-22. How would EPA gather data to support a finding of imminent
hazard, without using its sampling and investigative authorities? If it
is the intent of the proposal is to in no way impact EPA's 106
authority today, it simply does not accomplish that goal.
I would also note that two additional facts that should be weighed
by policy-makers when considering the sufficiency of CERCLA 106
authority for onsite releases. The CERCLA statute authorizes the
President to exercise such authority. By executive order, this
authority was delegated to EPA and EPA was required to consult with the
Justice Department before exercising this authority at federal
facilities. Executive Orders are subject to change and EPA's role could
be further modified. And, while EPA's working relationships with the
DOJ are very good, consultation does take time, and section 106 is
designed to address imminent threats.
The CERCLA proposals, like those for RCRA, also present a number of
questions on how various provisions will be interpreted. For example,
since the proposed definition of release does not include the deposit
or presence of any military munitions (and constituents etc.) on
operational ranges, one is left to question whether these already
released materials would be considered a release (and thus subject to
CERCLA authorities after closure) or whether in absence of new evidence
of release after closure the release would continue to be exempt. More
clarity is needed.
Taken together these changes to RCRA and Superfund eliminate major
oversight tools EPA and States currently have to assure public health
or environmental problems are addressed expeditiously. If these are
enacted, unlike today, States and EPA likely would have to wait until
pollutants to migrate outside the operational range before they are
authorized to act. Lack of clear authority for onsite investigations
and response and ambiguity surrounding remaining authority for offsite
migration of contamination would make it response more complex and
lengthy. Contamination problems do not have property boundaries. The
net result of these amendments would be to subject surrounding
communities, on and off the facility, to greater health effects and
increased costs of responding to the contamination. This only ensures a
higher likelihood of adverse impacts, a more technically complex
response, and a higher price tag for the response.
3. CLEAN AIR ACT; SAFE DRINKING WATER ACT
Changes to the Clean Air Act likewise are not unjustified. DOD
proposes a three year extension of the conformity deadline for its
activities. In effect, States are deemed in conformity if its plan
would be adequate but for the emissions from the DOD 3 year exemption.
DOD says this provision is necessary for it to move operations from
base to base as needed to support readiness. This language is likewise
overbroad and unjustified. First, there is no oversight of these
determinations. Second, the legislation does not establish any
threshold for DOD to utilize this exemption. It appears to give them a
three year exemption whether it's needed or not. The net effect of this
would be to allow violations of air quality requirements, where they
could have been avoided. This can cause unnecessary and avoidable
environmental and public health impacts. It puts states in the very
awkward position of explaining to the public why these emissions are
not being addressed. And, as was noted above, it is difficult to
understand why the national security exemption provided by section 118
of the Clean Air Act would not be sufficient to address DOD's stated
concern that a specific case may arise in the future. This authority is
well suited to dealing with a specific case, and it does not open the
door for many communities to be subject to excess emissions.
DOD also proposes to amend the Safe Drinking Water Act and Clean
Air Act to provide a right of removal to Federal courts for actions
filed against the Federal government. DOD's proposal effectively
negates the clear provisions of the Clean Air and Safe Drinking Water
Acts, which explicitly recognize the ability of state, and local
authorities, to bring actions in any State or local court under state
or local pollution abatement laws. This is an unnecessary change,
premised on concern that state judges may face local pressures. In
fact, there is no record of state judges having any pattern of
rendering unreasonable decision under these laws that have affected
DOD's readiness. Of all our nation's environmental laws the Safe
Drinking Water Act and the Clean Air Act are the most dependent on
state law and implementation.
CONCLUSION
Based upon the many concerns cited above, I cannot conclude these
special exemptions for DOD are merited. They are overly broad responses
to problems that are largely speculative. And there are many available
tools to resolve real problems. My experience in government is that in
the vast majority of cases, environmental laws work well in the
military setting. Moreover, in those exceptional cases in which the
regulated community faces a significant problem, those problems can be
worked out by the regulator and the regulated community. This is true
whether it involves DOD's need to maintain military readiness or a
company's need to avoid shutting down a plant that is a town's major
employer. For those willing to work cooperatively, solutions to such
issues have been and can continue to be found. In the case of DOD,
national security exemptions already exist which can be brought to bear
if merited. This exception has already has been successfully used at
Groom Lake, survived challenge and has been consistently renewed. Yet
DOD has not sought to use these existing means to address its concerns.
Only when these efforts have failed do we need to consider legislative
change. That need has not been identified under the CERCLA, RCRA or
Clean Air Act conformity provisions.
A December 2003 report by the General Accounting office, which
examined the program to assess and remedy contamination at closed
munitions sites, identified 1,387 sites that are yet to be assessed. It
stated that over 15 million acres in the U.S. are known or suspected of
being contaminated by military munitions at closed, closing and
formerly used defense sites. The price tag for remedying this existing
contamination was estimated at 8-35 billion dollars. We cannot afford
to add to this legacy by creating new contamination or worsening that
which has already occurred at operational ranges. These amendments
threaten to do so.
Lastly and importantly, I am concerned that these amendments would
undermine much of the progress EPA, States and DOD have made in
protecting public health and the environment and working with local
communities around military installations. Cutting out the regulator
and making DOD self regulating undermines the credibility of the
government in the eyes of citizens and the regulated community.
Citizens depend on these checks and balances as assurance that they and
their children are protected, and the private sector expects a level
playing field. Abandoning these principles without adequate cause will
only hurt DOD's environmental program by making relationships with
communities more, not less, contentious in the long run.
In addition, attached to this testimony is a memorandum from David
Baron of Earth Justice that contains further elaboration of Clean Air
Act issues for the Committee's consideration.
______
Earth Justice
April 20, 2004
TO: Sylvia K. Lowrance, Representing National Environmental Trust, The
Natural Resources Defense Council, and the League of
Conservation Voters
FR: David Baron, Attorney, Earthjustice
RE: Defense Department proposals to relax Clean Air Act requirements
and allow removal of state clean air enforcement actions to
federal court
This memo provides an analysis of the Department of Defense's
proposal to exempt a variety of DOD activities and the communities in
which they are located from timely compliance with specified
requirements of the Clean Air Act. I am very familiar with the Clean
Air Act, having specialized in enforcement of that statute for more
than twenty years at the local, state, and national levels. In 1996-97,
I served on the Subcommittee for Development of Ozone, Particulate
Matter and Regional Haze Implementation Programs, a Federal Advisory
Committee to the U.S. Environmental Protection Agency (EPA). I have
also taught environmental law courses as an adjunct professor at the
University of Arizona College of Law and Tulane Law School.
The DOD proposal would needlessly place millions of Americans at
risk--including members of our armed forces--by delaying anti-pollution
measures that would otherwise be required to meet clean air health
standards. There is no evidence that the Clean Air Act has ever
impaired military readiness or training for combat. Moreover, the law
already has ample provisions to exempt readiness activities should the
need to do so ever arise.
Background
According to the U.S. Environmental Protection Agency (EPA), air
pollution today threatens the health of more than 150 million
Americans. Just last week, EPA identified 480 counties throughout the
nation that violate health standards for ground level ozone, a severe
lung irritant that is the principal component of urban smog. This
contaminant can cause shortness of breath, chest pains, increased risk
of infection, aggravation of asthma, and significant decreases in lung
function.1 Elevated ozone levels have been linked to
increased hospital admissions and emergency room visits for respiratory
causes.2 Ozone presents a special health risk to small
children, the elderly, persons with lung ailments, and adults who are
active outdoors. When ozone levels exceed alert thresholds--something
that happens all too often in cities throughout the nation--children
are warned to limit outdoor play, and people with respiratory disease
are warned to stay indoors.
---------------------------------------------------------------------------
\1\ 66 Fed. Reg. 5002, 5012/3 (2001)
\2\ 65 Fed. Reg. 6698, 6707/1 (2000)
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Many communities also suffer from dangerous levels of airborne
particle pollution (referred to by EPA as ``PM''), consisting of soot,
soil, smoke, metals, and other material. Small PM particles can pass
through the natural filters in the nose, mouth, and throat, penetrate
the upper airways, and travel deep into the lungs.3 PM
pollution has been linked to very severe health impacts, including
premature deaths, reduced lung function, aggravation of heart and lung
disease, aggravated coughing, difficult or painful breathing, and
decreased lung function.4 Scientific studies have found that
tens of thousands of premature deaths each year are associated with
elevated levels of PM pollution in the United States. Another pollutant
regulated by EPA--carbon monoxide--poses a special threat to persons
with heart disease.
---------------------------------------------------------------------------
\3\ H.R. Rep. No. 490, 101st Cong., 2d Sess. 207-08 (1990).
\4\ Id. 210-11
---------------------------------------------------------------------------
The 1970 Clean Air Act, as amended in 1977 and 1990, was enacted
specifically to attack the kinds of health threats presented by ozone,
PM, and carbon monoxide pollution. Pursuant to the Act, EPA has adopted
national health standards for allowable levels of each of these
pollutants in the ambient air.5 EPA designates communities
as ``attainment'' or ``nonattainment'' areas based on whether they meet
the standards.6 Nonattainment areas are further given
classifications, such as ``moderate'' or ``serious,'' 7
depending on the severity and persistence of the pollution problem. For
each nonattainment area, states must submit to EPA a state
implementation plan (``SIP'' or ``plan'') containing enough pollution
control measures to assure attainment of the standards by deadlines set
forth in the Act.8 The statute details a number of specific
emission reduction measures that must be included in ozone SIPs, with
additional and more protective measures required for more severe
classifications. If a nonattainment area fails to meet its attainment
deadline, it must be reclassified (``bumped up'') to a higher
classification.9 Areas with higher classifications are given
more time to attain the standard, but must implement stronger pollution
control measures. Congress adopted this graduated system of pollution
control to ensure the air would finally be cleaned up in areas with
chronic air pollution problems.
---------------------------------------------------------------------------
\5\ 42 U.S.C. 7409; 40 C.F.R. Part 50
\6\ 42 U.S.C. 7407(d)
\7\ The possible classifications for ozone nonattainment areas are
marginal, moderate, serious, severe, and extreme. 42 U.S.C. 7511. For
PM-10 and carbon monoxide nonattainment areas, the possible
classifications are moderate and serious. Id. 7512, 7513.
\8\ Id. 7410 , 7502, 7511a, 7512a, 7513a
\9\ Id. 7511(b)(2), 7512(b)(2), 7513(b)(2)
---------------------------------------------------------------------------
The Clean Air Act also requires federal agencies to play their part
in fighting dirty air. They must comply with all federal, state and
local air pollution laws to the same extent as private
industries.10 Federal agencies must also take steps to
ensure that their actions ``conform'' to state anti-pollution SIPs in
areas that violate standards, so federal actions don't thwart or delay
state efforts to clean up the air.11 To implement this
requirement, EPA's ``conformity'' rules require federal agencies to
evaluate the air quality impacts of proposed actions, and to mitigate
impacts that would conflict with state plans for timely attainment of
standards.12 However, these requirements apply only to
federal actions that would result in significant air pollution
emissions.13 Moreover--and significantly for present
purposes--actions responding to emergencies, including specifically
``military mobilizations'' and responses to ``terrorist acts,'' are
exempt from the conformity requirement for up to six months, with the
exemption renewable for successive six month periods where properly
justified .14 Also exempt are actions that implement a
foreign affairs function of the United States, and the routine movement
of ships and aircraft or transportation of materiel and
personnel.15
---------------------------------------------------------------------------
\10\ 42 U.S.C. 7418(a)
\11\ 42 U.S.C. 7506
\12\ 40 C.F.R. 93.150 to 160
\13\ Id. 93.153(b)
\14\ 40 C.F.R. 93.152, 93,153(d)(2), (e)
\15\ Id. 93.153(c)(2)(vii), (viii), (xviii)
---------------------------------------------------------------------------
Even where an action is not otherwise exempt from clean air
requirements, the Clean Air Act gives the President authority to grant
an exemption for any federal emission source ``if he determines it to
be in the paramount interest of the United States to do so.''
16 As far as we can determine, the President has only
exercised this exemption authority in two instances, and neither
situation involved a military readiness activity. In addition, the
President may, if he determines it to be in the paramount interest of
the United States to do so, adopt rules exempting ``any weaponry,
equipment, aircraft, vehicles, or classes or categories of property
which are owned or operated by the Armed Forces of the United States
(including the Coast Guard) or by the National Guard of any State and
which are uniquely military in nature.'' 17 As far we can
determine, the President has never adopted such rules, nor has he even
proposed to do so.
---------------------------------------------------------------------------
\16\ 42 U.S.C. 7418(b)
\17\ Id. 42 U.S.C. 7418(b)
---------------------------------------------------------------------------
The DOD Proposal Would Needlessly Threaten Public Health
As indicated above, the Defense Department has yet to identify a
single instance in which military readiness has in any way been
compromised by Clean Air Act requirements. Nor has DOD cited a single
instance in which it has even sought a Presidential exemption from
Clean Air Act requirements based on military readiness concerns.
Nevertheless, the bill most recently proposed by the Defense Department
would grant a blanket exemption for all military readiness activities
from timely compliance with the Clean Air Act's conformity
requirements. Under the DOD proposal, such activities could cause or
contribute to unhealthful levels of air pollution in a community for up
to three years before having to conform with state clean air plans.
This delay would be allowed even if DOD could readily avoid it by
providing offsetting emission cuts from other DOD facilities in the
area. The bill would further allow affected communities to delay
compliance with clean air standards for up to three years where
emissions from the exempted readiness activities preclude timely
attainment. And the bill would also allow those same communities to
delay stronger anti-pollution measures that would otherwise be required
to protect public health. DOD's proposal would produce that result by
delaying bump ups to higher classifications that would otherwise be
triggered by failure of the community to timely attain health
standards.
These exemptions could end up threatening the lungs of millions of
Americans. The DOD bill defines readiness activities as including ``all
training and operations that relate to combat, and the adequate and
realistic testing of military equipment, vehicles, weapons, and sensors
for proper operation and suitability for combat use.'' It further
defines ``combat'' and ``combat use'' as including ``all forms of armed
conflict and operational employment as well as those support functions
necessary for armed conflict and operational employment . . .'' Thus,
readiness activities exempted from timely clean air conformity under
the bill would encompass actions at literally dozens of military
facilities throughout the nation, ranging from testing complexes to
large military bases.
A three year delay in compliance with clean air standards is a
matter of profound public health concern. It means three more years of
added suffering for people with asthma, bronchitis, and other
respiratory ailments, and of recurrent days when children are warned
not to play outside because the air is not safe to breathe. In PM
nonattainment areas, it can literally mean additional premature deaths
due to continued violation of health standards. Dangerously polluted
air threatens not only the civilian population but also members of our
armed forces and their families as well. Furthermore, since a separate
exemption applies to each readiness activity, some non-attainment areas
may be subject to a series of exemptions causing delays in attaining
healthful air well beyond a single three year period.
No one doubts the importance of ensuring military readiness, but
there is no evidence that we have to sacrifice public health in the
name of readiness. The Clean Air Act has been around for more than 30
years, yet in all that time there has never been a serious conflict
between clean air requirements and military readiness--at least none
that have been identified by DOD . Moreover, the DOD bill grants an
automatic delay in clean air compliance for readiness activities even
where no clean air delay is actually needed to accommodate the
particular readiness activity at issue. Thus, the bill will only
encourage poor environmental planning while needlessly threatening
public health. As further discussed below, there are already carefully
crafted provisions in the law to exempt readiness activities from clean
air requirements should there truly be a need to do so.
Current Law Has Ample Provisions to Exempt Readiness Activities If the
Need Arises
DOD has yet explain why the exemption provisions already on the
books are insufficient to protect readiness activities from any
possible conflict with clean air requirements. As noted above, EPA
rules already exempt emergency situations like military mobilizations
and responses to terrorist acts from compliance with the Clean Air
Act's general conformity requirements. Routine movement of materiel and
transportation of troops is also exempt. Also as noted above, the Clean
Air Act allows the President to exempt specific emission sources, and
to adopt rules exempting entire classes or categories of military
property (including weaponry, aircraft, equipment and vehicles) from
clean air requirements, when he finds it in the paramount interest of
the nation.
DOD has asserted that the ``paramount interest'' standard for a
presidential exemption is high, but does not claim it is unduly so, or
that it could not be met where truly necessary. Moreover, DOD can
hardly claim that these exemptions are too hard to get, when--as far as
we can determine--the Department has never even tried to get one for
readiness activities. DOD has also suggested that it is ``bad policy''
to seek a presidential exemption for activities that are part of a day-
to-day training regimen, but does not explain why this is so. If DOD is
seeking to prolong exposure of the public to unhealthful air--thereby
increasing the risk of premature deaths and other serious health
impacts--that is a decision of extraordinary import plainly worthy of
Presidential attention. If anything, the matter is even more deserving
of Presidential attention if it involves authorizing a pollution
generating activity that will be ongoing for an extended period and
will therefore have long term air quality impacts.
In addition to the above-cited exemption provisions, the Secretary
of Defense has authority under 10 U.S.C. 2014 to temporarily suspend
an EPA action that he finds, in consultation with the Joint Chiefs,
``affects training or any other readiness activity in a manner that has
or would have a significant adverse effect on the military readiness of
any of the armed forces or a critical component thereof.'' The
suspension remains in effect for up to five days, unless EPA finds it
would pose an actual threat of imminent and substantial endangerment to
public health or the environment. During the suspension, EPA and the
Secretary must attempt to mitigate or eliminate the adverse impact of
the EPA action on readiness, consistent with the purpose of that
action.
The Presidential exemption provision in the Clean Air Act and the
DOD Secretary's authority under 10 U.S.C. 2014 allow legitimate
readiness concerns to be addressed while maximizing protection of
public health. Rather than granting a blanket delay in clean air
conformity by all readiness activities--as DOD now proposes--existing
law properly requires DOD to make the case that a specific readiness
activity (or class of such activities) cannot be accommodated with
clean air requirements, and is important enough to justify the
increased risk to public health from allowing the activity to proceed
without complying with the law. The DOD proposal would irresponsibly
allow DOD to proceed with any readiness activity--no matter how
injurious to public health--without even attempting to ensure
conformity with state clean air plans until three years later.
The Proposed Removal Provisions are Unnecessary and Counterproductive
The DOD proposal would also allow state clean air enforcement
actions against federal agencies to be ``removed'' from state court and
moved to federal court--even where they only involve enforcement of
state (not federal) environmental laws. This proposal has absolutely
nothing to do with preserving military readiness--indeed, the bill's
language would extend this ``removal'' right to all federal agencies,
not just DOD. Rather, the proposal is an attempt to give federal
agencies accused of violating state and local anti-pollution laws the
right to circumvent state courts and state procedures when they think
they can gain a procedural or other advantage in federal court.
Congress should not be in the business of authorizing federal
agencies to play procedural games to delay or impair enforcement of
state and local laws designed to protect the public from dirty air. The
federal facility and enforcement provisions of the Clean Air Act were
designed to ensure that federal agencies would follow the same anti-
pollution laws and procedures as private entities, and those procedures
include being subject to suit in state court for noncompliance.
Mr. Hall. The chair recognizes Mr. Kunich.
STATEMENT OF JOHN C. KUNICH
Mr. Kunich. Mr. Chairman, thank you for this opportunity to
testify. I have submitted my prepared remarks for the record so
I am going to summarize them and to some extent paraphrase them
here today.
I am Professor John Kunich and I am here in my individual
personal capacity and not as a representative of Roger Williams
University School of Law. At that school of law I specialize in
environmental law and natural resources law, national security
law, and biodiversity law. I published several major law review
articles on these subjects and also a book, ``Ark of the Broken
Covenant: Protecting the World's Biodiversity Hotspots,'' which
was published last year by Praeger.
The spirit of full disclosure compels me to admit that I am
something of an endangered species myself because not only am I
a law professor and an enthusiastic tree hugger, but I am also
a 20-year Air Force veteran and a conservative republican. If
you can find anyone else who answers to that description, I
would like to meet them. I am rather lonely.
Well, prior to entry in academia in 1999 I did serve 20
years as an active duty Air Force officer, mostly as a judge
advocate. I specialized in environmental law for the last half
of my Air Force career. I was well suited to this by virtue of
my bachelors and master of science degrees in biological
sciences from the University of Illinois, and also my law
degree from Harvard Law School and my masters of law degree, my
LOM in environmental law from George Washington University
School of Law.
During the 1990's amongst other things I was the chief
environmental legal officer for Air Force Space Command, United
States Space Command, and NORAD. As you may know, Air Force
Space Command includes the major installations some of which
were mentioned today by the Members of Congress in their
opening statements including Vandenberg Air Force Base in
California as well as F. D. Warren Air Force Base in Wyoming
and Patrick Air Force Base in Florida.
In addition to my work with NORAD and the space commands, I
serve as the Chief of the Environmental Compliance and Planning
Branch of Headquarters Air Force Environmental Law and
Litigation Division in Washington, DC. I have the
responsibility of balancing and Air Force's mission
requirements with our legal duties under all applicable
Federal, State, and international environmental and natural
resource laws.
I worked extensively in the Air Force's compliance programs
regarding RCRA, CERCLA, and the Clean Air Act, as well as the
other major Federal environmental statutes. I also served as
the litigator with the Headquarters Air Force General
Litigation Division at Buzzard Point in Washington, DC from
1990 to 1992. In that capacity I litigated numerous cases
brought against the Air Force and it's people in both Federal
and State courts around the Nation. These are mostly
constitutional tour cases, the so-called Bivens actions, but
they also involve the same jurisdictional issues as the
environmental law cases I subsequently handled.
During my two decades of military legal service which
included the first Gulf War, our intervention in Kosovo and
several major operations other than war, I never became aware
of even one instance in which the Clean Air Act, RCRA, or
CERCLA posed an impediment to the military mission.
The Air Force is able to comply with every provision of
environmental law applicable to all American citizens,
corporations, and Federal agencies with no harmful affect on
military readiness, training or, indeed, on the actual
successful conduct of wartime operations. The Air Force found a
way to comply with all the legal mandates arising out of these
key hazardous material statutes and Clean Air Act regulations.
Military did not need to choose between environmental
compliance and mission accomplishment. The two were not
considered mutually exclusive in any respect.
In fact, out military's record of success in both Gulf Wars
and Afghanistan and Kosovo and many other large-scale missions
does not reveal any deleterious effects attributable to the
necessity of complying with generally applicable environmental
laws. In fact, amongst myself and my fellow Air Force officers
it was a matter of honor, duty, and pride for us that we did
not need any special favors or preferential treatment to do our
job.
It was a matter of honor, duty, and pride that we could
meet our mission requirements within the bounds of the law just
as did the local electric company, the nearby toy factory, and
everybody else. We all had different missions, different jobs,
but the same laws and we all obeyed in our own spheres which is
as it should be.
Now, within the Air Force we may have occasionally grumbled
amongst ourselves about how inconvenient it was that we had to
abide by these environmental laws. Would we have preferred to
be exempt? Of course. It was costly and, in some cases,
inconvenient and burdensome for us to do so. It required time,
money, and effort to obey the law just as it is for everybody.
But it was our duty to obey it just as it was our duty to obey
our commanding officers in other aspects of our mission.
In fact, it was part of our mission to do all that we did
within the bounds established by law. The Air Force motto was,
``Aim high, not by any means necessary.'' Unfortunately, the
proposals now before this committee would needlessly weaken
important safeguards in three of our most vital Federal
environmental statutes. Others today have here suggested that
effectively we are at war justifies the sweeping exemptions.
But the proposals are not tied to the war and they do not
expire upon the cessation of the war.
Even if they did by their own terms, how would we know when
this war is over because, after all, this is a war on terror,
very different from the kinds of wars we are used to fighting
and that is the core problem when we wage war against not a
nation but a notion. How do we know when it is over? It is
rather self-defining and, therefore, these exemptions, anything
that is tied to the war could go on indefinitely quite easily.
Allowing the military to do less than its fair share to
clean up our air and the hazardous materials that they have
spilled will usher in what might be called the shock and awe
phase of American environmental history. DOD asserts that there
is insufficient flexibility in our current law to accommodate
its needs of the Clean Air Act as well as RCRA already provides
ample mechanisms for exempting agency activities when there
truly is a military or national security need.
As we have seen many times today, the military has rarely
if ever even asked for one of the already existing exemptions.
Certainly no new ones are called for, particularly in light of
the severity of the environmental problems we now face both in
the United States and in the world as a whole is anything but
the time to declare victory in the environmental war and go
home.
The world is now in the midst of our sixth mass extinction
and this is a phenomenon of historic dimensions not seen for
the last 65 million years. Now is the worse possible time to be
contemplating new and wide-open exemptions to keep provisions
of RCRA, CERCLA, and the Clean Air Act. Any weakening of these
laws will inevitably result in harm to living things both human
and nonhuman.
The United States should be exercising global leadership
and crafting stronger more effective legal standards and
safeguards for our people and our dwindling biodiversity.
Instead, the proposed exemptions will do exactly the opposite.
If the objective is to avoid the lengthy, costly,
burdensome litigation as has been stressed by some members of
the first panel, this proposal is not the answer. It is not a
panacea and it is not even going to help in my view. Nothing in
this proposal would hand DOD a get out of court free card.
There would still be plenty of opportunity for NGO's and
citizen groups and anyone to challenge the proposals in court
even if these were to become law. In fact, the unavoidable
ambiguities and definitional gray areas that some of you have
identified today could lead to even more litigation against the
DOD than we now have. It is not going to eliminate litigation.
It may, in fact, lead to more of it.
Finally, I will address one point that has mostly been not
addressed today. There is no justification for the proposed
right of removal provisions either. In my experience as an Air
Force litigator there was no emission degradation associated
with the occasional need for us to defend ourselves in State
court. Like any other litigant we conducted our legal defense
work within the jurisdictional and procedural rules generally
applicable to everyone. Again, we prided ourselves on our skill
as trial attorneys and we did not fear any forum whether State
or Federal and our record of success in hundreds of cases in
various State and Federal courts belies the notion that we
somehow were weak and needed special favors to protect us from
the system when no one else needed such protection. The
standard removal provisions available to all litigants were
quite adequate for Air Force purposes if and when they were
needed. Many times they were not needed at all.
Thank you for this opportunity to testify and I would be
happy to answer any questions you might have.
[The prepared statement of John C. Kunich follows:]
Prepared Statement of John Charles Kunich, Associate Professor of Law,
Roger Williams University School of Law
Mr. Chairman, members of the Committee, thank you for this
opportunity to testify. I am here in my individual, personal capacity,
and not as an official representative of my university. As a Professor
of Law at Roger Williams University School of Law in Rhode Island, I
specialize in Environmental, Natural Resources, and Biodiversity Law. I
have published several major law review articles dealing with various
aspects of environmental law, and I wrote a book ``Ark of the Broken
Covenant: Protecting the World's Biodiversity Hotspots'' published in
2003 by Praeger Publishers.
Prior to entering academia in 1999, I served 20 years on active
duty with the United States Air Force as a judge advocate, and I
specialized in these same areas for the second half of my Air Force
career. I was well suited to this specialty by virtue of my Bachelor of
Science and Master of Science degrees in Biological Sciences, as well
as my Juris Doctor degree from Harvard Law School and my Master of Laws
degree in environmental law from George Washington University School of
Law.
During the 1990's, I was the chief environmental law attorney for
Air Force Space Command, United States Space Command, and the North
American Aerospace Defense Command, and I served as the Chief of the
Environmental Compliance and Planning Branch of the Headquarters Air
Force Environmental Law and Litigation Division. I had the
responsibilities of balancing the Air Force's mission requirements with
our legal duties under all applicable Federal, state, and international
environmental and natural resources laws. I worked extensively in the
Air Force's compliance programs regarding the Resource Conservation and
Recovery Act (RCRA), the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the Clean Air Act (CAA), the
Endangered Species Act, and all other major federal environmental
statutes.
I also served as a litigator with the Headquarters Air Force
General Litigation Division in Washington, D.C., from 1990 to 1992. In
this capacity, I litigated numerous cases brought against the Air Force
and its people, in both federal and state courts around the nation.
These were mostly constitutional tort cases, but they involved the same
jurisdictional issues as the environmental law cases I subsequently
handled.
During my two decades of military legal service, which included the
first Gulf War, our intervention in Kosovo, and several major
operations other than war, I never became aware of even one instance in
which RCRA, CERCLA, or CAA posed an impediment to the military mission.
The Air Force was able to comply with every provision of environmental
law applicable to all American citizens and federal agencies, with no
harmful effect on military readiness, training, or, indeed, on the
actual successful conduct of wartime operations. The Air Force found a
way to comply with all the mandates arising out of the key hazardous
materials statutes and regulations. The military did not need to choose
between environmental compliance and mission accomplishment. The two
were not mutually exclusive in any respect. In fact, our military's
record of success in both Gulf Wars, in Afghanistan, in Kosovo, and in
many other large-scale missions does not reveal any deleterious effects
attributable to the necessity of complying with generally applicable
environmental laws.
Within the Air Force, we may have occasionally grumbled among
ourselves about how inconvenient it was that we had to abide by these
environmental laws. Would we have preferred to be exempt? Of course. It
required some time, money, and effort to obey the law. But it was our
duty to obey it, just as it was our duty to obey our commanding
officers in other aspects of our mission. It was part of our mission to
do all that we did within the bounds established by law. The Air Force
motto was ``Aim high,'' not ``By any means necessary.''' Unfortunately,
the proposal now before this Committee would needlessly weaken
important safeguards in three of our most vital federal environmental
statutes, RCRA, CERCLA, and CAA. I will briefly explain.
RCRA is the nation's premier law for regulating ``hazardous
wastes'' and is meant to prevent toxic pollution and ensure that the
parties responsible for hazardous wastes pay to clean them up. Military
munitions contain heavy metals and other toxic substances that escape
into the air, soil, and water when the munitions are fired and if they
do not explode or only partially explode, and when munitions and their
components are produced or destroyed. This proposal would exempt
munitions and their toxic components from virtually any regulation
under RCRA by exempting ``explosives, unexploded ordnance, munitions,
munition fragments, or constituents thereof'' on operational military
ranges from RCRA's definition of ``solid waste.'' The proposed language
would allow the Defense Department simply to leave munitions releasing
toxic substances lying on or in the ground where they can leach into
the environment, without any independent oversight or regulation. This
would have the perverse effect of eliminating RCRA regulation of some
of the most dangerous substances in existence. It would also seek to
exempt from RCRA ordnance and toxic munitions contamination at sites
other than training ranges. Army Ammunition Plants and facilities that
have produced, tested, and demilitarized military rockets are some of
the nation's most contaminated public and private sites warranting
inclusion on EPA's National Priorities List under CERCLA.
The Defense Department is already responsible for more NPL sites
than any other party--at least 140 at present. Yet this proposal seeks
to exempt the DoD from having to remediate the toxic substances that
leach from military explosives and munitions on ``operational ranges,''
a vague term which includes dozens of ranges that have been inactive
for years or decades. CERCLA is our nation's main law for cleaning the
worst toxic waste sites. The proposal would allow the military to wait
to remediate such sites until after toxic contamination has increased
for years, has spread off-site, and has driven clean-up costs much
higher. CERCLA's remediation provisions are triggered by a ``release''
of a toxic substance, but the proposed language exempts from the term
``release'' any ``explosives, munitions, munitions fragments, or
constituents thereof'' unless the range is closed or the toxic
substances migrate off the range. CERCLA would only apply to these
substances after the contamination has spread for years or decades,
threatening public health and environmental quality, and adding years
and potentially billions of dollars to any final remedial actions.
DoD appears to have made a conscious decision to exclude munitions
constituents from oversight not because it interferes with readiness B
there has never been a documented instance where this has happened B
but because of the staggering liability it will bear for the
characterization and remediation of Perchlorate and other deadly
contaminants such as RDX and HMX. The current legal authority on
munitions contamination is the Military Munitions Rule promulgated by
EPA in 1997 as directed by Congress in the Federal Facilities
Compliance Act of 1992. The Munitions Rule determines, among other
things, when munitions become a hazardous waste. However, it does not
cover munitions constituents. DoD apparently deliberately decided to
include these constituents in the items to be excluded from our
nations' hazardous waste laws despite the real risks they pose to human
health.
DoD asserts that this proposal would simply codify or clarify
existing regulatory policy. However, the RCRA and CERCLA proposals,
when taken together, would force nearly all responses to munitions
contamination to take place under CERCLA. Moreover, even within CERCLA,
the normal CERCLA 104 RI/FS process would be made unavailable, with the
only option being the CERCLA 106 abatement order regimen. Abatement
orders require a much higher risk threshold showing of imminent and
substantial endangerment, as well as Department of Justice concurrence.
This is significant, because EPA and DoJ have never issued an abatement
order to DoD. Also, because the CERCLA 104 sampling and inspection
authority is eliminated, the regulators would be deprived of the very
means to obtain the information necessary to support an abatement
order.
Unless an active military range is listed on the Superfund National
Priorities List (which is highly unlikely), DoD would itself, as the
lead agency, be leading the response to both on- and off-range
munitions contamination. Under DoD's proposal, EPA and, by extension,
the state regulators would likely have no independent authority under
RCRA to issue binding orders or go to court to address on-range
contamination, even in the case of an imminent and substantial
endangerment to human health. And under CERCLA, DoD would be the lead
agency in a process limited to the most severe abatement order
situations, where only a showing of imminent and substantial
endangerment will suffice. The result is that EPA and the states could
be cut off from any effective oversight of contamination caused by
military munitions. And this is proposed not because of any
identifiable mission degradation owing to the need to comply with
existing law, but as a matter of expediency for DoD. The prospect of
litigation over its practices at ranges from Eagle River Flats to
Vieques is not a valid justification for making legal requirements
disappear.
Proposed revisions to the Clean Air Act seek to exempt DoD from
having to comply with NAAQS. This means that those living in areas near
military bases could breathe dirtier air, which could result in more
premature deaths, asthma attacks, cardiopulmonary problems, and other
adverse health and environmental effects, especially among the very
young and the very old. The sweeping exemptions within this proposal
are unnecessary, because the CAA has ample provisions to reconcile
clean air requirements with national security and military readiness
concerns.
Because the proposal defines military readiness so broadly, it
attempts to permanently exempt DoD from conforming to federal or state
implementation plans for attaining the NAAQS for a broad range of
activities. The proposal attempts to give DoD a three-year extension on
its conformity analysis and allow the federal government to proceed
with its activities while analyzing those same activities' effects on
air quality. Although it contains language requiring DoD to cooperate
with a state to ensure conformity within three years of the date of new
activities, it subsequently attempts to remove all the meaningful
enforcement mechanisms for ensuring that they do so and to preempt a
state from taking action to require reductions from the DoD. Thus, an
area that violates the NAAQS because of these military activities could
no longer have to take steps to meet them or to reduce air pollution.
Moreover, the proposal actually defines dirty air to be clean air.
Section 2018 does this by allowing EPA to approve areas as if they had
attained the CAA's health-based standards, even though areas have not
attained them, if the reason for the nonattainment is military air
pollution. This is without precedent in the CAA and a direct attack on
the protectiveness and truthfulness of what it means to attain the
Act's health-based air quality standards. Relieving DoD from its
obligation to control its own air pollution, moreover, will only shift
that burden to private industry, small businesses and the public.
Responsible state and local officials will not allow unhealthy air
caused by military pollution to remain unaddressed, and they will be
forced to turn to local businesses and members of the public (through
measures aimed at cars and trucks) to make up the emissions reductions
to which the military should have contributed. Allowing the military to
do less than its fair share to clean up our air will impose burdens
upon industry and small businesses and the public, in what might be
termed the ``shock and awe'' phase of American environmental history.
DoD asserts that there is insufficient flexibility in current law
to accommodate its needs, but the CAA (as with RCRA and CERCLA) already
provides ample mechanisms for exempting agency activities from
conformity requirements where there truly is a military or national
security need. In actuality, the military has rarely, if ever,
perceived the need to invoke these long-available exemptions.
Certainly, no new ones are called for, particularly in light of the
severity of the environmental problems we now face, both in the United
States and in the world as a whole. This is anything but the time to
declare victory in the environmental war and go home.
The world is now in the midst of, our sixth mass extinction. The
five previous mass extinctions, during which huge numbers of speciesBup
to 95 percent of all life on EarthBwent out of existence in a short
span of time, all took place before human beings came on the scene. We
have an air-tight alibi on the first five mass extinctions, but we are
primarily responsible for the mass extinction now just beginning.
Through our deliberate or inadvertent alteration or destruction of
enormous amounts of critical habitat, we have severely jeopardized at
least 40 percent of all known species now in existence on the planet,
as I spell out in detail in my book, ``Ark of the Broken Covenant.''
Now is the worst possible time to be contemplating new and wide-
open exemptions to key provisions of RCRA, CERCLA, and the CAA, in the
United States or anywhere else. Any weakening of these laws will
inevitably result in harm to living things, both human and non-human. A
mass extinction is no time for weakening the few effective legal
protections now in place in defense of biodiversity. All or part of 3
of the 25 world's biodiversity hotspots are within the United States,
and these hotspots would be further imperiled by the proposed
exemptions. The United States should be exercising global leadership in
crafting stronger, more effective legal safeguards for our dwindling
biodiversity and our embattled environment. Instead, the proposed
exemptions would do exactly the opposite.
I am aware of only one instance in which the President has ever
exercised any of the provisions already available in several of the
major federal environmental statutes for a national security exemption.
In the Groom Lake case, the President invoked the national security
exemption in RCRA, and this was unequivocally upheld by the Ninth
Circuit Court of Appeals in the case of Kasza v. Browner, 133 F. 3d
1159, 1173-74 (9th Cir. 1998), in which it was held that this exemption
is solely within the President's discretion. This is evidence that
national security exemptions from these laws, including the three under
review here, have virtually never been needed or justified, even in the
opinion of the President as advised by the Secretary of Defense. There
is certainly no military exigency requiring new, sweeping exemptions
for the Department of Defense.
Neither is there any justification for the proposed right of
removal provision. In my experience as an Air Force litigator, there
was no mission degradation associated with the occasional need for us
to defend ourselves in state court. Like any other litigant, we
conducted our legal defense work within the jurisdictional and
procedural rules generally applicable to everyone. We prided ourselves
on our skill as trial attorneys, and we did not fear any forum, whether
state or federal. And our record of success in hundreds of cases in
various state and federal courts belies the notion that we somehow
needed special favors to protect us from the system. The standard
removal procedures available to all litigants were quite adequate for
Air Force purposes, if and when they were needed. Many times, they were
not needed at all.
Thank you for the opportunity to testify at today's hearing. I
would be happy to answer any questions you may have.
Mr. Hall. All right. Thank you, Professor Kunich. All
right. We thank you all for your testimony and I guess you will
get some questions from us at this time. I will start out and
ask Mr. Brown, your testimony refers to a survey that somebody
conducted at your spring meeting regarding involvement with
military facilities needed for RCRA, Superfund, or Clean Air
compliance. Would you expand on these discussions and what
precipitated these discussions and any planned follow-up that
environmental commissioner of the States of that ECOS have
planned for the record?
Mr. Brown. Yes, sir. I regret I didn't get that into my
written testimony to you because it hadn't occurred yet. I had
an opportunity to speak directly to our member over there and
meeting representatives of about 25 of the States about this
matter.
The question I put to them was do you know of any examples
in your State where your agency was unable to accommodate a
request from any Defense facility, training or otherwise, on
air matters and waste matters where you were unable to help
them resolve their problem under the existing law.
The answer from all of them was, ``No. We have always been
able to accommodate any request that they had to comply with
the acts as they are currently written.'' As far as follow-up,
don't have any plans to do so but we might if the committee
were interested.
Mr. Hall. Your statement also indicates that the Clean Air
Act provision would allow training activities to be redefined
from year to year and in some way allow an exemption from
general conformity. Is it your opinion that considering the
testimony we received earlier, you were in here when the other
testimony was given, that DOD would try and circumvent the
intent of its own provision and disregard its own testimony on
this matter and engage in such a scheme and, if so, what
information would lead you to that conclusion?
Mr. Brown. I think ECOS didn't hesitate a specific opinion
on that as a body. It was a matter of concern that was an
ambiguous area. But we didn't take an official position on it.
Mr. Hall. But it is not your position that the Clean Air
Act provision for a 3-year delay could be avoided by relocating
entire fleets of aircraft and military vehicles from one base
to another? You are not going that far, are you?
Mr. Brown. I am not sure I understand the question.
Mr. Hall. Well, do you have any evidence to support an
assertion that the Clean Air Act provision for a 3-year delay
in conformity of determination could be avoided by simply
relocating entire fleets of aircraft and military vehicles from
one base to the other?
Mr. Brown. If I understood the question, I think the answer
is no.
Mr. Hall. Okay. And do you have any evidence to support
that assertion? That is not your assertion, is it?
Mr. Brown. No.
Mr. Hall. And I have one other question for Mr. Becker. You
mentioned Section 188(b) of the Clean Air Act being available
to address military readiness situations. Is it the case or is
it not the case that the President could promulgate a rule
which would totally exempt certain types of classes of aircraft
or military equipment from all Clean Air requirements, not just
conformity determinations?
Mr. Becker. There are provisions in the Clean Air Act that
I believe would allow the President to do so, yes.
Mr. Hall. So which would be better for the environment, a
3-year delay in the conformity or a permanent exemption from
military readiness for weaponry, equipment, aircraft, vehicles,
or other classes of DOD property which conceivably could be
promulgated under Section 118 that you refer to subject only to
trying the old review. It would be better, would it not, to
have that delay?
Mr. Becker. Sir, you are presenting a Hobson's choice.
Mr. Hall. I'm not giving you a good choice.
Mr. Becker. We think that we don't need to get to either of
those options because, as Mr. Brown as stated and I testified
during my statement, that States have been able to work
cooperatively with the Department of Defense whenever such a
situation arose and prevented this from ever becoming a
problem.
May I also take the opportunity to respond to the last
question. The Department of Defense's proposal allows unlimited
3-year delays. They can recur based upon a different activity
so this is not such a 3-year limited period not withstanding
what the witnesses of the Department of Defense testified
depending on each activity for ad nauseam.
Mr. Hall. I thank you very much. I yield my time. I
recognize Ms. Solis. Sorry, I recognize Mr. Dingell for 5
minutes, 8 minutes, 10 minutes, 15.
Mr. Dingell. Gracious. I don't think I will need that much
time. We may find some very interesting answers. First, Mr.
Ensminger. DOD claims that essentially all Camp Lejeune 152,000
acres is an operational range. You served there. Is this
statement true?
Mr. Ensminger. Absolutely not, sir.
Mr. Dingell. Second, there are widespread activities that
are permitted on the ``operational ranges'' at Camp Lejeune,
i.e., golfing, tennis, recreation, swimming, hiking, going to
theaters, concerts, hunting, and things of that kind. Is that
not so?
Mr. Ensminger. Yes, sir. Most of the training areas aboard
Camp Lejeune are open if there is not a unit that has it
checked out for training. All of them are available unless they
are in an impact area for hunting and fishing.
Mr. Dingell. Thank you very much. Now, for Mr. Miller and
Mr. Brown. Gentlemen, in turn, can each of you please describe
how important it is to the States to retain independent
oversight authority over military munitions and such substances
on operational ranges and explain why it is possible to
investigate contamination or stop contaminated ground water
without affecting military readiness. In any order, Mr. Miller,
Mr. Brown, if you please.
Mr. Miller. It is very important to the States to retain
their independent authority over the operational ranges. Our
experience with the Department of Defense and other Federal
agencies is that they are in compliance with the environmental
laws is best when there is independent State oversight. The
experience under the Clean Water Act and Resource Conservation
Recovery Act since 1992, which I described in my written
testimony, provides I think pretty compelling evidence that
when you have clear independent State authority, Federal
agencies will comply with the law. When the authority is not so
clear, their record isn't so good.
We have had examples in our State that potentially could be
affected by this legislation. Several years ago, a munition was
found on the Rocky Mountain Asenal. It was a bomblet containing
sarin nerve agent. The Department of Defense wanted to blow
this bomblet up just in the open air. The State didn't like
that idea. We had conducted some modeling that showed under
some atmospheric conditions a plume of sarin nerve agent could
travel several miles into populated areas so we issued an order
under our State hazardous waste law preventing them from going
through with this plan and requiring them to submit a proposal
to us that would destroy the bomb in a fashion that ensured the
protection of humans and the environment.
Mr. Dingell. Thank you, Mr. Miller.
Mr. Brown.
Mr. Brown. Well, the States believe they have the right and
responsibility to protect the health of their citizens when
they delegated a Federal program as most States have been for
RCRA and Clean Air. And they have an obligation to the Federal
Government to exercise the portions of the program that require
them to regulate whoever is regulated and the military is in
these cases. It is our obligation to regulate them.
Mr. Dingell. Gentlemen, again for Mr. Miller and Mr. Brown,
can you discuss any concerns you have with what appears to be a
complete delegation of discretion to the Secretary to identify
property as a ``operational range'' and the jurisdictional
implications of such a delegation on State authorities?
Mr. Miller. Yes. We are very concerned with the definition
of operational range that was incorporated into law this past
year in the Defense Authorization Act of 2004. It does provide
broad discretion to the Department of Defense in identifying a
range. We had a meeting with several Department of Defense
officials in December where we asked them what criteria are
used to designate a range. Are there standards, written
standards. The people who were at that meeting were not aware
of any criteria used in designating a range. As far as we could
tell there don't appear to be any written standards. The
definition in the statute defines a bunch of things that can be
included in ranges such as impact areas, maneuver zones, buffer
zones, etc. There has been some discussion already today that
the public has access to portions of ranges when they are not
being used for military training.
Mr. Dingell. I have a limited time, Mr. Miller.
Mr. Brown, if you please.
Mr. Brown. Our focus has been less on the definitional
difficulties in the act which we think there are many of them
than it has been on the lack of need based on no examples that
have been brought forward.
Mr. Dingell. Gentlemen, I want you to comment on this and
tell me if I am correct. Under current law the Department of
Defense is covered like anybody else but has the capacity to
either procure a direct exemption of the President or from the
administrator of EPA functioning under regulations which were
negotiated by and between the Department of Defense and the
EPA. Under current law if you had a problem with this kind of
situation where they were either contaminating the ground water
or polluting the air, you would be able to address the problem.
Is that right? Using your own authorities or authority
delegated to you by EPA and would be able to go to the military
directly to discuss these questions with them. Would you not?
Mr. Brown. Yes, sir.
Mr. Dingell. Is that right, Mr. Miller?
Mr. Miller. That is correct.
Mr. Dingell. All right. Under the proposal that DOD has
submitted to us, you would not be able to do that. Would you?
Mr. Brown. That is my understanding.
Mr. Dingell. You would not? Is that right, Mr. Miller?
Mr. Miller. DOD's proposal would preempt a broad range of
State authority.
Mr. Dingell. So you would essentially not be able to
address these questions at the State level. This would be done
at the will and caprice of the Department of Defense and the
will and caprice of the Secretary. Is that right?
Mr. Brown. It would severely constrain both State and EPA
oversight of these issues.
Mr. Dingell. Okay. And they would be out of the act. Is
that true, Mr. Brown?
Mr. Brown. I'm sorry? What was that last part?
Mr. Dingell. That you would no longer be able to go to
address the questions within your own power or by working with
EPA. The best you could do is go to the Secretary and hope that
he might see you or receive your mail. Is that right?
Mr. Brown. We think our jurisdiction would be impaired.
Mr. Dingell. Mr. Chairman, I have used more time than I am
entitled to. I thank you for your curtesy. Gentlemen and
ladies, thank you.
Mr. Hall. Thank you, Mr. Chairman. The Chair now recognizes
Mr. Burr. First I just want to make a statement. Mr. Ensminger
left the room. I just want to say that inasmuch as your
daughter was diagnosed with and passed away from Leukemia, and
it is your belief and your testimony it was the result of
contaminated drinking water on the base, and that officials
were told of that contamination but nothing was done for nearly
5 years, I think, under your testimony until required to do so
with new regulations.
I just say this is my hope and my sincere prayer that with
DOD's environmental guidelines and whatever new regulations
that you use to bring to make that happen.
With the program currently in place and the new
clarifications that are sought that this could never happen to
anybody else again. I want to thank you for your testimony
here. I think it was received very well and reached the hearts
and minds of everyone of us. Mr. Burr, as a matter of fact, had
asked that you be recognized first to give your testimony as
did Chairman Dingell.
I recognize the gentleman from North Carolina.
Mr. Burr. I thank the Chair and once again I thank him for
this hearing and apologize with the schedule today that I have
been in and out. I also apologize to this panel for the fact
that I was not here to hear your testimonies and will make sure
that I go back and read all that were supplied to us. I did
read yours last night, Mr. Ensminger. I want to thank you
personally for your willingness to come here to testify.
It is obvious you will get less questions than everybody
else just simply because of the nature of what we are here to
discuss. I think it is appropriate to say we take this very
seriously, our responsibility in this decision and the impact
that it could potentially have. I think that is why my hope is
that we move slower rather than faster and we try to get as
many of the answers as close to perfect as we possibly can in
our minds and that those are confirmed by those individuals who
we perceive to be knowledgeable of what the impact would be.
I really only have one question. I am curious if there is
anybody in the audience from DOD or from the Corps who was
assigned to come here and listen to Mr. Ensminger's testimony
as it relates to what I think is a tragedy at Camp Lejeune?
Mr. Chairman, seeing no hands or no one standing, it once
again to some degree disgusts me when we have a problem,
whether it is in the military or it is in another area of the
Federal Government, that the areas of responsibility aren't
interested enough in making sure that not only that we fix the
problem but that we show the level of concern that individuals
and their families deserve, the fact that we would send
somebody to listen to the testimony from somebody who is
willing to take their time, and probably pay their way, to come
and sit through a very lengthy hearing and to wait to make one
very, very important statement.
Not just for you and not just for your daughter, but
potentially for every man and woman who serves and every family
who could potentially live on a base that is faced with this
type of problem. Once again, I thank you, Mr. Chairman. I would
yield back the balance of my time but I would also take this
opportunity to warn the Chair I have an extensive list of
questions that I will submit to the committee to be passed on
to our witnesses. Thank you.
Mr. Hall. The Chair recognizes Ms. Solis for 5 minutes.
Ms. Solis. Thank you, Mr. Chairman. I also want to commend
Mr. Ensminger for coming here today and sharing his quite
moving story. You are definitely a hero and a very courageous
man to come here and continue to speak as a voice for those who
don't have a voice.
I say that sincerely because at Camp Lejeune it is a center
where many from my district are assigned. We have families that
leave California that are assigned there so we all, I think,
have the responsibility to know what goes on there.
I am not quite satisfied with what I am hearing here today
about cleanup. I haven't been there myself and I hope that at
some point our committee might take a group of members who are
interested to go out and visit because I certainly would like
to do that. I want to thank you for being here.
I know and kind of understand where you are coming from
because in the district that I represent we have a lot of
similarities where we have perchlorate that we found in our
drinking water. We have water agencies and groups that have
been fighting with EPA to help provide cleanup and working with
responsible parties. It seems like we go in circles at times.
What angers me in many cases is that there isn't enough
cooperation. Yes, there is money that goes to litigants and to
courts. The fact of the matter is that there is an injustice
when rate payers and consumers and people that are there are
affected. Either they are left with a contaminated land or they
are faced with cancer, disease, or what have you. We do have a
responsibility to clean up and I would hope that DOD would come
back here with a more solidified plan and give us some facts
and credibility behind the statements they are making. I didn't
hear that today.
And I was very pleased to hear from our other witnesses
here, in particular Mr. Miller. You raise something that caught
my interest. You said something about States' rights. That is
something that we hear a lot about up here. People give that a
lot of lip service. I think on this particular moment I would
like to hear a little bit more about that States' rights
because you said something about water being owned by the State
and that is the first time I heard that phrase articulated
before this committee so I would like you to touch base on that
if you can.
Then I would also like to ask Mr. Gastelum who came far
from California to talk a little bit about what implications
the definitions that DOD is trying to propose and how that
would make it harder for you to do your job to clean up our
water in California and the other parts of the country that you
serve. If we could possibly get those two answers. Thank you.
Mr. Miller. Very briefly, in Colorado the State
constitution provides that ground water is the property of the
people of the State and that is the law in some other States as
well. The water does not belong to the surface owner, it
belongs to the State so, we have a property interest for ground
water underneath military ranges in our State. As I said
earlier, one of the fundamental aspects of State sovereignty is
the authority to implement State laws within the boundaries of
the State and to protect the health of the people in the State
and the vitality of the States' economies. That is the purpose
of our hazardous waste laws is to prevent contamination of our
ground water supplies and to clean it up when it does occur.
Ms. Solis. You mentioned that these exemptions would
preempt your ability to do your job. Do you have any estimate
of what that might mean?
Mr. Miller. Well, as we discussed here today, we are just
beginning to learn the extent of ground water contamination
across the country caused my military munitions but it is
apparent that it is a problem in a number of the States. We
have talked about the 40 DOD facilities that have perchlorate
contamination in ground water or surface water. There are
hundreds of defense contractor facilities around the country
that may also be affected by this legislation because of
ambiguities in the definition of operating range.
So it is difficult to quantify in terms of dollars or
anything like that but certainly perchlorate is a very
widespread problem across the country. Any change in the law
that would inhibit the ability of States or others to require
the Department of Defense to clean up that contamination or to
pay for it would be a problem, I think.
Ms. Solis. And you know that California just issued their
guidelines.
Mr. Miller. Yes.
Ms. Solis. Right. And our DOD and our Federal Government is
not yet ready to accept what States are doing to try to provide
mitigation for that.
Mr. Gastelum.
Mr. Gastelum. Coming from California I would just observe
that in California in-ground water is recognized as a property
right but there is an overriding public interest that is
recognized as State law. Under no circumstance can anyone
pollute our water with impunity because it is owned as a
property right.
Relative to your question about the definitions, I think
our major concern is that the definitions are still rather
broad and it is very difficult for us to tell which facilities
will be impacted. Above and beyond that, however, we do not
have sufficient data to understand even if we had more precise
technicians what the extent of the problem would be or how it
would be addressed. For us that is the priority. More
information would make all of this discussion less academic.
Mr. Becker. May I talk about another State's right and that
is the right for clean air. While the DOD proposal excuses the
State from having a plan that balances, it ignores totally the
extra pollution in the air that results that aggravates asthma
and exacerbates significant respiratory disease caused by air
pollution. There is a more significant bedrock State's right
issue here and that is the right that every citizen deserves
clean air which would be jeopardize by the DOD proposal.
Mr. Hall. The gentlelady's time has expired. The Chair
recognizes Chairman Barton for 5 minutes.
Chairman Barton. Thank you. I have been watching and
hearing on my television set as I am doing hearings in my
office. I don't want this panel to think I didn't listen to
what you said. Through the miracle of technology I could watch
what you were doing while I was doing meetings so I appreciate
you all being here.
My question is kind of a general question. I want to make
sure I understand. When I was briefed on this by the Pentagon
they went to great lengths to tell that they were trying to
limit their amendments to missions that were for training
purposes and that they were not trying to exempt themselves
from ongoing day-to-day operations of the bases.
I just listened to your opening statements and some of the
questions that have been asked. My sense is that you all
dispute that, that you think that the Department of Defense is
trying to circumvent its responsibilities on a routine normal
basis in addition to the training readiness mission to keep our
troops ready to engage in combat. Is my assessment fair or not
fair? Whoever wants to answer.
Mr. Gastelum. If I could respond. I think the Department is
represented by capable lawyers who have drafted the language
and have given it as much flexibility as they would like to
have. But if you match the words we heard today, the language
is far broader just on an objective reading than what they said
they wanted.
Chairman Barton. That is the whole purpose of having this
hearing. If we can narrow down so that the day-today operations
at a base, the water and the sewer and air issues and just deal
with having that many people in a specific area, if we are
satisfied that those aren't going to be exempt, we can expect
some cooperation on the live-fire training exercises and air
operations that are necessary to keep our pilots combat ready.
Mr. Gastelum. Speaking for the water agencies, I think that
would be a productive exercise.
Chairman Barton. Okay. The gentleman on the end.
Mr. Miller. I think the way I would respond to that
question is that we need to recognize that activities that the
military does or activities that the Department of Energy does
at the nuclear weapons labs don't have a parallel in some ways
in the private sector but they do have environmental
consequences. In 1992 Congress amended RCRA with the Federal
Facility Compliance Act to specifically require regulation of
military munitions in certain circumstances.
A lot of the problems that we have at DOE and DOD
facilities are caused by activities that don't have a common
parallel in the private sector. So we are definitely concerned
about contamination of ground water from the use of munitions
on operating ranges. But we don't think that there has to be
any conflict between ensuring the protection of ground water
and the military's use of its ranges. We have worked with the
Army at Fort Carson, as I have stated earlier, to site ground
water monitoring wells on an active range at Fort Carson in a
way that did not impact readiness whatsoever.
We just worked with the people who schedule the use of the
range to be sure that the wells could be installed on a day
when the range wasn't being used. Then we adjusted our normal
monitoring cycle so that----
Chairman Barton. Would anybody on this panel encourage a
lawsuit to prevent a live training exercise to prepare our
troops for potential combat to defend our Nation? That is my
question. I understand that we want environmental laws that
protect our citizens, and whether it is a military base or a
factory, we ought to be able to run our bases in a way that the
water is clean and the air is clean.
Even on the Clean Air Act request that is pending it is
just to give an additional 3 years to comply with the existing
State implementation plan so they are not trying to exempt
themselves from it. I would hope that you all don't want us to
not do a live training exercise or not conduct some operation
if it means that our troops are not going to be as effective or
as ready as they could be if they have to defend our Nation.
That is my question.
Mr. Brown. Congressman, our members certainly would not
want to have a suit but what concerns us is where are the
examples. When I poll my members they don't know of any
examples. They talk with the bases on a very regular basis.
These are people that are actually doing the training and they
don't have examples. Many people have asked the Department of
Defense to bring more of these things but they still haven't
done it.
The second problem that we have is what I would call the
fuzzy edges of the applicability here. What constitutes
training and what constitutes routine maintenance?
Chairman Barton. I understand that. I've got two people
that want to answer and then I am going to have to yield back
to the chair. The lady and then the gentleman at the end.
Ms. Lowrance. If I could add one additional point. I think
one of the major concerns that the Department of Defense seems
to have citizen suits, not actions by the Federal Government or
by States.
In the course of appearing for this hearing I examined the
citizen suits that they cited. In fact, most of those citizen
suits are unaffected by the limits that they have here. I don't
think citizens are suing in most cases to in any way shut down
ranges. I think they are trying to get at some environmental
issues even though they are not the ones addressed here.
Mr. Hall. Okay. The gentleman's time has expired.
Chairman Barton. I think one more answer, Mr. Chairman, and
then I will yield back.
Mr. Ensminger. Sir, I spent 24\1/2\ years in the Marine
Corps. I was involved in the armition in North Norway to
protect North Norway from the evil empire of the Soviet Union.
When we were training in Norway we had environmental impacts on
our training maps that we had to avoid. We had caribou
slaughter in areas where the Laps slaughtered and raised their
caribou, fur farms.
We honored their wishes and stayed away from those areas.
They were sensitive areas. Even in combat we have areas such as
mosques or temples in Vietnam which we honored and stayed away
from. To have to honor something like that in training you
could take that bit of training and use it as a real scenario.
It depends on how you look at it.
And another thing about the exemptions, as Congressman
Dingell brought up in his opening statement, Camp Lejeune has
153,000 acres total. They are asking for exemptions for
152,000. Now, I can just about guarantee you that Camp
Lejeune's two golf courses take 1,000 acres. Not to mention
their housing areas, their barracks areas.
Chairman Barton. I need to yield back, but we are not
trying to protect the Department of Defense from having to be
responsible in their ongoing routine operations just to
maintain the bases. On the Clean Act issue which I am more
familiar with, if you don't fly a plane--to prevent an
emission, you don't fly the plane. You can do a little bit in
simulation and you can do simulators but eventually you have to
put the pilots in the seat. You have got to let the plane take
off. When you have a clean air standard that is now 80 parts
per billion, we have to work on that a little bit.
With that, Mr. Chairman, I yield back and thank you for the
curtesy of letting me go after. And I thank the panelists for
being here.
Mr. Hall. I thank the gentleman. The gentleman's time has
expired. We recognize Mr. Stupak from Michigan.
Mr. Stupak. Thank you, Mr. Chairman. Mr. Ensminger, thanks
for being here as I mentioned in my opening statement. Thanks
for coming down. Right now at Camp Lejeune you are getting
potable water there shipped in?
Mr. Ensminger. Excuse me, sir?
Mr. Stupak. Are you getting water being shipped in to Camp
Lejeune right now?
Mr. Ensminger. No, sir.
Mr. Stupak. Nothing yet?
Mr. Ensminger. They have relocated their wells away from
the contamination plumes which exist close to what they call
their industrial areas and other areas where they created
plumes from improper disposal. But the bad thing is, and I
didn't even realize this until I was showing someone around the
base 2 months ago, they created a brand new well field down
grading it and right beside the largest impact area on the
base. That is why I am asking why has no one ever tested for
these constituents in that water?
Also, sir, I would like to mention that Mr. Burr brought up
the fact that nobody from the Marine Corps was here to hear my
testimony or the DOD but there is also another gentleman here
whose daughter was identified in 103 children by ATSDR and he
is from Ohio. It's Mr. Jeff Byron.
Mr. Stupak. So no time since the mid 1980's have they
brought in potable water or anything like that?
Mr. Ensminger. No, sir.
Mr. Stupak. And there are no plans for a new water
treatment or water system? It is going to be the wells? That is
the plan at Camp Lejeune, just more wells?
Mr. Ensminger. Yes, sir. What I am concerned about, and I
think the citizens of the county down there ought to be
concerned about, is that where they placed this new well field,
that is about their last ditch effort for any clean drinking
water on that base for the main part of Camp Lejeune. I think
the county is being finagled into a deal where they might end
up having to find the base a source of water.
Mr. Stupak. Thanks. Along those lines, Mr. Miller, DOD said
that States will retain their safe drinking water act authority
over operational ranges. Is that an adequate substitute for
State authorities under RCRA or CERCLA?
Mr. Miller. No, sir. It is not. The Safe Drinking Water Act
doesn't reach water used for agricultural purposes. It doesn't
reach private wells. And the fact is that the Safe Drinking
Water Act is really not a cleanup program. In our State we
don't have any authority to require cleanup of contaminated
ground water under our Safe Drinking Water Act authority. I
think that is relatively common among the States. We are
replacing the authority we do have in the RCRA with no
authority under a program that primarily regulates suppliers of
drinking water.
Mr. Stupak. Well, let us go back to Camp Lejeune here. Who
should take the responsibility to get this place cleaned up or
a safe drinking water supply for these people? Does anyone want
to comment on that? State? Feds? EPA? DOD?
Mr. Miller. It seems to me it should be DOD's
responsibility to provide clean water.
Mr. Stupak. Sure, but obviously they are not doing it if it
has been since the mid 1980's. You've got 20 years here. Where
does one go if DOD is not doing it? Yes, Ms. Lowrance. I was
waiting for you.
Ms. Lowrance. I do think this is a classic situation that
requires all parties. It requires the States, it requires the
Federal, DOD, as well as EPA because the short-term solution is
dealing with the drinking water. The longer-term solution
requires the Safe Drinking Water Act, State authorities, and it
requires the Federal, CERCLA and RCRA authorities to make sure
that appropriate prevention and cleanup action is taken in the
long run.
Mr. Stupak. That's why I asked about bringing in water.
That is usually the first thing to do until you can figure out
what is going to be done and get all the parties together. It
just seems like no one wants to accept responsibility here on
this whole situation. We are going around and around in
circles. DOD is still sitting there asking for further
exceptions. It doesn't make much sense to me.
Mr. Ensminger. Sir, I would like to also mention that last
September I made a complaint through our Department of Justice,
Environmental Crime Section.
Mr. Stupak. Yes.
Mr. Ensminger. And an EPA criminal investigator was
assigned to this situation. I am sure you have dealt with
Federal agents before. I am very, very limited as to what
knowledge or where this man is at with his investigation. I
don't see a whole lot happening.
Mr. Gastelum. Mr. Stupak, if I can say something.
Mr. Stupak. Yes.
Mr. Gastelum. Municipal water agencies, private water
utilities are routinely required to disclose to the public what
is in the water. It seems to me that it would be very useful
for military personnel to receive on a regular basis that
information. People, being people, will seek out remedies and I
think that it will be an important step in getting relief, that
simple disclosure.
Mr. Stupak. I agree. With private individuals and the water
systems up north we do the same thing. What do you do here with
the military base? Where does that information come from? If it
is not provided by the military, it is just not provided. Most
people don't know.
Mr. Gastelum. I think if the military is asked to do that
by the U.S. Congress, that would be a good and important step
for military families.
Mr. Stupak. Let me ask you one question while you have the
mike there. Would you agree that we need to be far more
aggressive in sampling ground water on these operational ranges
for these military munitions and live firing ranges? What are
your feelings on that? Should we go aggressive?
Mr. Gastelum. Yes. Information will help a lot in assessing
the need for action or not.
Mr. Stupak. Could I just have Mr. Ensminger follow up with
his answer.
Mr. Ensminger. I feel the question that he just had, all
would be required is downgrading monitoring wells that have to
be sampled periodically for these constituents.
Mr. Stupak. Sure. Thanks.
Mr. Hall. The gentleman's time has expired. We thank you.
The Chair recognizes Chairman Gillmor.
Mr. Gillmor. Thank you, Mr. Chair. I only have one comment
and then just one short question. The comment is regarding the
authority to regulate drinking water, it is my understanding
EPA does have the authority to regulate drinking water whenever
there is an imminent or substantial threat of contamination.
That can be done before the contamination actually takes place
as long as there are either 15 connections or 25 people served
by the source.
My comment is I wanted to thank this panel for their
testimony. Also for their patience. We have all been here a
very long time and I do thank you. Your testimony has been very
helpful and I appreciate that.
My one question is for Mr. Kunich. I am going to ask it for
two reasons. Since I am also an ex-Air Force JAG I thought I
had better ask a question. You said something that piqued my
interest that is not real relevant here but I am really
interested. You closed by talking about that we're in the 6th
major extinction. I know you have written a wide variety of
subjects. You said 65 million years so I presume that goes back
to the meteor and the dinosaurs 65 million years ago. What are
the other five extinctions? Could you fill us in?
Mr. Kunich. Yes, sir. This goes back to before even I was a
kid. We're talking many millions of years ago. The most recent
was the so-called KT extinction that wiped out the dinosaurs at
the end of the Curtacious period. It is widely thought that was
caused by a meteor strike. I wasn't there so I can't say for
sure.
With regard to these five previous mass extinctions when as
much as 95 percent of all species went out of existence fairly
quickly, human being have an airtight alibi on all those. We
weren't around yet. As for the sixth one that is now underway,
we are primarily responsible for this one because of
environmental degradation. We created habitat destruction,
pollution of ground water, the surface water, the air, soil. I
know biodiversity issues are not really in this committee's
purview. That's why I skipped over that a little bit.
That is just one more reason amongst the many other
powerful reasons you have heard today not to loosen the
standards for the DOD. If ever a military residency really was
there that required an exemption, they've got the provision.
They have invoked it precisely one time in all of history so
that must mean there is not exactly a crying need for more
relaxation of the standards.
Mr. Gillmor. Thank you.
Mr. Hall. If it gives you any solace, Mr. Kunich, it was a
meteor that killed them. I was there.
The Chair recognizes Ms. Capps.
Ms. Capps. I thank the Chairman. I also want to add my
thanks for your courage, Mr. Ensminger, and assure you that
your words have not fallen on deaf ears. Many of us are
determined that our decisions and our actions will do honor to
your daughter's memory. Thank you for being here.
I have four questions and there is not a lot of time.
Professor Kunich, I'll start with you because I was pleased to
hear you speak with your responsibilities for NORAD. I
represent Vandenberg Air Force Base and I have been so
impressed with--I want to underscore what you were saying about
these not being mutually exclusive, the environmental standards
and the military emission, and the commercial space emission at
that facility as well, and acknowledge what a very strong
proponent I am of the local air pollution control district as
it has worked as a local agency with the State space authority
and with the Air Force.
They have achieved remarkable standards in that fragile
coastal environmental setting. I believe that the local and the
State have really added to the military standards and achieved
a remarkable outcome. I wanted to be sure I heard your
testimony correctly. You were in charge of these issues for the
Air Force and you heard the DOD testify today. There is a
question mark at the end of each of these sentences. You see no
need for the exemptions that they are seeking?
Mr. Kunich. Absolutely not.
Ms. Capps. Thank you.
Mr. Kunich. And, indeed, the Vandenberg Air Force Base
example is a great one because here is a cutting edge mission.
It is one we haven't seen before, military and civilian space
cooperation. Yet, Vandenberg has done a super job of complying
with all existing environmental laws. They haven't seen any
need for special exceptions or special treatment.
Ms. Capps. Thank you. I now will turn to Mr. Gastelum. It
being a foregone conclusion that military activities on
operational ranges will generate contaminate levels sufficient
enough to pose a risk for local water supplies. What does your
local or your organization believe the Pentagon's response or
prevention plan should be? That is, should the Pentagon act to
prevent contaminant plumes on active ranges or only respond
once that contamination has dispersed and then entered the
water supply?
Mr. Gastelum. The former.
Ms. Capps. Thank you. This is going faster than I assumed
it might but that is great. We can go back and revisit some of
these topics. They are very large. But many of you have hit on
these topics already.
Another question, and the National Association of Attorneys
General, Mr. Miller, with your wearing of that hat, underlying
the Pentagon's concern is the assumption that any response
action addressing military munitions related contamination
would necessarily impact readiness. I understand there is a
wide range of alternative approaches to cleaning up
contamination.
This is what I would like you to speak about if you would.
Are legal exemptions the only way for DOD to deal with such a
problem? Would installation of monitoring wells or ground water
treatment system disrupt its readiness activities? And if you
could give an example or two in Colorado of successfully
coordinating environmental cleanup and training activities.
Mr. Miller. It certainly is possible to investigate and
remediate ground water contamination on active ranges without
adversely impacting readiness. I did give an example earlier of
the ground water monitoring wells that were installed at Fort
Carson. We simply adjusted the timing of installation and
timing of sampling so as not to conflict with the military's
use of that range.
If I may say in response to that question, as well as
Chairman Barton's question, clearly the Attorneys General do
not support lawsuits that would shut down the use of our
military training ranges, but these proposed amendments go so
far beyond that, and take away the authority that the States
have to do these kind of reasonable approaches to addressing
problems on ranges, working with DOD in a manner that does not
impact readiness.
Ms. Capps. Thank you. That speaks to the adage. As a public
health nurse I agree with an ounce of prevention versus a pound
of cure.
Finally, Mr. Baron, environmental groups and public health
nurses are concerns about impacts that air pollution has on the
health of our citizens, particularly vulnerable populations
like the children and the elderly. Some of these are located
very near or on bases. Ozone pollution is a cause of increased
cases of asthma, hospital admissions and missed school days.
It is a major problem in California where there is a very
large military presence and a very big air quality concern. It
appears that DOD is seeking the right to make air pollution
worse without doing their part to reduce emissions at all. If I
could have a couple more seconds to have you respond to your
perspective on this proposal.
Mr. Baron. Well, can I respond?
Mr. Gillmor. Yes, go ahead.
Mr. Baron. My name is David Baron, by the way. I am an
attorney with Earth Justice which is a nonprofit law firm. We
strongly oppose this Clean Air proposal because contrary to
what some of the DOD witnesses said, this is not just 3 more
years for them to get their act in order. We have deadlines in
the Clean Air Act for meeting health standards to protect
people from those very health effects she mentioned.
These deadlines are set far enough into the future so State
level governments and the military has time to meet them. What
they are asking for is to delay those deadlines in communities
wherever they decide they want to. They don't have to testify
to anybody. They can just do it. That means prolonging exposure
of people in those communities unhealthful air and adverse
health effects and premature deaths that we have seen that are
associated with that pollution. They have got exemption
authority in the current law that is more than adequate to
address those situations that haven't arisen yet, that have yet
to arise where there really is a true conflict between
readiness and clean air compliance.
Mr. Gillmor. The gentlelady's time has expired. The
gentleman from Maine.
Mr. Allen. Thank you, Mr. Chairman. I want to thank all the
witnesses for being here. I apologize for not being able to be
present earlier during your testimony. But I do have several
questions. Mr. Baron, according to the EPA earlier today, these
proposals as they relate to the Clean Air Act are intended to
be temporary and to last no more than 3 years.
But as I read the provisions, and I mentioned this to Mr.
Holmstead, Section B, C, D, and E have no 3-year limit. In
fact, they seem to require EPA to approve State implementation
plans even when those plans fail to attain national ambient air
quality standards. Does this concern you and, if so, why?
Mr. Baron. Representative Allen, this is a major concern
because the way the law is set up now if an area fails to meet
one of those clean air deadlines, it is required to adopt
stronger pollution controls. This bill, on its face anyway as
it is currently written, once DOD triggers the 3-year
exemption, those stronger pollution control requirements go
away and there is no provision to make them come back after the
3 years. The same is true with the waiver of the attainment
demonstration. There is no provision in there that says when if
ever the State would have to come back and make up for those
emission reductions, those emissions that the military activity
would cause. Plus you have the additional concern which I don't
think was addressed adequately by the EPA witnesses. They can
do repeated 3-year activities. They can move a new wing to a
base every 3 years and trigger the 3-year extension again and
again and again. That means that the people in those
communities will never get clean air.
Mr. Allen. Thank you. I share many of those concerns. That
is why this proposal in its current form does look to me like
an effort to simply weaken the Clean Air Act in ways that are
not related to readiness.
I do have a question for the State witnesses, particularly
Mr. Becker. This morning we heard from DOD that they have been
working with the States. For any of you who are on that side of
the table, is it true? Have they been working with the States?
Have they made any adjustments to their proposals when they
listened to the concerns of you or anyone else representing
States?
Mr. Becker. Thank you, Mr. Allen, for asking. They had met
with us, and with me in particular over the past 2\1/2\ years
regarding the proposal. I remember on a couple of occasions I
said to them--the short answer is no, they haven't changed
anything. I even made a recommendation as to how they might use
their proposal.
I said, ``You are seeking a 3-year exemption and you are
not obligating yourself to comply until 3 years. If you came
back and decided to make up for the excess emissions during the
3-year period in addition to complying at the end of 3 years,
that would be an improvement. I am not saying we would support
it but it would be less offensive to the environment.'' We
expected to see this in the next proposal and never saw any
change to the kind we suggested. It is not fair to them to say
they were working with the States intimating that they were
making changes in response to State concerns, at least on the
air problem.
Mr. Brown. I would say for our organization we work with
DOD both as an organization and individual States on a wide
variety of topics. But with respect to this legislation we were
never approached about it.
Mr. Miller. We had one meeting with DOD in December not to
negotiate any changes to the legislation, because as has been
made clear today, our position is that it is not necessary. But
we did meet to talk about and try to better understand DOD's
underlying concerns. We did not expect any changes as a result
of that meeting, and none were made. That was a group of five
western States.
Mr. Allen. Finally, I just want to make one other point. I
am very troubled by the fact that if you have an exemption for
DOD readiness activities that it is not at all clear to me how
anyone is going to be able to separate the air pollution that
is attributable to DOD readiness activities from all the other
air pollution that is supposed to be regulated by the States. I
see, Mr. Chairman, my time has run out but I did want to leave
that as a hanging question. If anyone would like, maybe we can
submit that in writing.
Mr. Gillmor. Maybe someone wants to hang out and answer.
Mr. Allen. Could anyone respond to that? I would appreciate
it.
Mr. Becker. Just a quick response. I think you are
absolutely correct. I would even add to that. What is to stop
other sources of pollution under the guise of an important
military issue seeking the same kind of relax exemptions? Those
are the expectations. There is an inequity argument here and I
think it is very unfair to other sources of pollution who have
already reduced their emissions.
Mr. Allen. Mr. Baron?
Mr. Baron. I just had one other thought on that, all of
this involves predicting the future. When they are proposing to
move, say, a wing of an aircraft to a base, under current law
they are required to predict, and even under the DOD laws they
are required to predict what the air quality impacts going to
be.
My concern is that if they are not required to do that
ahead of time, which is what the DOD proposal would let them
do, let them move all these forces of training and whatever to
a base before making that analysis, by the time they do it, it
will be too late.
Mr. Gillmor. Okay. Once again, we appreciate all of you
coming and the hearing will stand adjourned.
[Whereupon, at 4:11 p.m. the hearing was adjourned.]
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