Witness Testimony
Mr. Raymond DuBois
Deputy Under Secretary for Installations and Environment
Department of Defense
The Pentagon
Washington, DC, 20301-1000
Current Environmental Issues Affecting the Readiness of the Department of Defense
Subcommittee on Energy and Air Quality
Subcommittee on Environment and Hazardous Materials
April 21, 2004
10:00 AM
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.
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.
- 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]
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.
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.
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.
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.
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]
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.
[1]
See Pub. L. 107-314, § 315, 116 Stat. 2509 (Dec. 2, 2002) for the definition
of “military readiness activity.”
[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.
[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.
[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.
[5]
201 F. Supp. 2d 113 (D. D.C. 2002).
[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).
[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).
[11]
Pub. L. 108-136 ( 2003), supra note 14.
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