Witness Testimony
Mr. John C. Kunich
Associate Professor of Law
Roger Williams University School of Law
Ten Metacom Avenue, Suite 231
Bristol, RI, 02809-5171
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
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.
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