[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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                    ------------------------------  
                    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \48\ See Exhibit 2 at p. 5.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \53\ 40 CFR Part 266, Subpart M.
    \54\ Cf. 40 CFR 266.202(c)(1).
    \55\ Cf. 40 CFR 266.202(b)(3).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.)
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \59\ 40 C.F.R.  300.120(d).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \67\ 60 Fed. Reg. 56468.
    \68\ Id. at 56492.
    \69\ Id.
    \70\ Id.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.'')
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \87\ Lennar Colorado, Inc. v. U.S., case no. 04-Mk-0627, filed 
March 31, 2004.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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)
---------------------------------------------------------------------------
    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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