Witness Testimony Ms. Sylvia Lowrance The National Environmental Trust 1200 18th Street, NW, Fifth Floor Washington, DC, 20036 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 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 Testimony of Sylvia K. Lowrance Page 2 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. Testimony of Sylvia K. Lowrance Page 3 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 Testimony of Sylvia K. Lowrance Page 4 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 Testimony of Sylvia K. Lowrance Page 5 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 Testimony of Sylvia K. Lowrance Page 6 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; Testimony of Sylvia K. Lowrance Page 7 -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 Testimony of Sylvia K. Lowrance Page 8 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 Testimony of Sylvia K. Lowrance Page 9 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 Testimony of Sylvia K. Lowrance Page 10 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. Testimony of Sylvia K. Lowrance Page 11 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. Testimony of Sylvia K. Lowrance Page 12 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 Testimony of Sylvia K. Lowrance Page 13 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 Testimony of Sylvia K. Lowrance Page 14 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 Testimony of Sylvia K. Lowrance Page 15 environmental program by making relationships with communities more, not less, contentious in the long run. In addition, attached to this testimony (Adobe PDF) is a memorandum from David Baron of Earth Justice that contains further elaboration of Clean Air Act issues for the Committee's consideration. Related Documents