TESTIMONY OF DANIEL S. MILLER

FIRST ASSISTANT ATTORNEY GENERAL

COLORADO DEPARTMENT OF LAW

BEFORE THE SENATE COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
JULY 9, 2002

SUBMITTED ON BEHALF OF THE ATTORNEYS GENERAL OF ARIZONA, CALIFORNIA, COLORADO, MASSACHUSETTS, NEVADA, NEW YORK, OREGON, AND WASHINGTON

Introduction

Mr. Chairman, thank you for the opportunity to present the state perspective on this issue today. These written remarks are submitted today on behalf of the Attorneys General of Arizona, California, Colorado, the Commonwealth of Massachusetts, Nevada, New York, Oregon, and Washington. Our testimony will address only those parts of the Department of Defense's (DOD's) legislative proposals that would amend the Clean Air Act, the Resource Conservation and Recovery Act (or RCRA) or the Comprehensive Environmental, Response, Compensation and Liability Act (known as CERCLA). The states are the primary implementers of the Clean Air Act and RCRA, and are major partners with EPA under CERCLA. As the chief law enforcement officers of our respective states, it is our duty to ensure compliance with our environmental laws.

First, let us reiterate that 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 readiness. However, military training activities can also have substantial adverse impacts on human health and the environment. The question is whether the existing environmental laws allow the military to conduct these 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.

We are not aware of any instances in which RCRA, CERCLA or the Clean Air Act has ever caused an adverse impact on military readiness. To our knowledge, DOD has not cited any examples of any such conflicts. We believe that the likelihood of a future conflict between these laws and military readiness is remote. In the unlikely event of such a conflict, these laws already provide the flexibility necessary to harmonize the competing concerns of military readiness and protection of human health and the environment.

RCRA, CERCLA, and the Clean Air Act provide vital safeguards to protect the health of our citizens and their environment. As a general matter, we think that these safeguards should be maintained or strengthened not weakened. Certainly, any amendments that would weaken the protections these laws provide must be justified by important countervailing considerations that are supported by the facts. While we certainly agree that maintaining readiness is necessary, the lack of any demonstrated conflict with RCRA, CERCLA and Clean Air Act requirements, together with the inherent flexibility of these laws, causes us to conclude that these amendments are unnecessary.

We are concerned that DOD's proposed amendments to RCRA, CERCLA, and the Clean Air Act would undermine state authority and create significant adverse environmental impacts, with no benefit to military readiness. These amendments are far-reaching. We disagree with DOD's statements that these amendments only apply to "operational" ranges. DOD's amendments to RCRA and CERCLA would likely affect cleanups of unexploded ordnance at thousands of sites nationwide, including many that are no longer in federal ownership, and could be read to exempt all munitions-related and explosives-related wastes from regulation as hazardous waste. The amendments to the Clean Air Act would allow continued violations of health-based air quality standards in cases where there was no impact on readiness.

Finally, we are concerned with the legislative process by which these proposed amendments have been considered. The proposed amendments were proposed as amendments to the Defense Authorization Bill in both Houses of Congress. The legislative language was first made public only four days before markup of the Defense Authorization bill in the Readiness Subcommittee of the House of Representatives. Until this hearing before your committee, no hearings on this legislative language have been held before a committee of jurisdiction. These amendments affect the federal government's obligations to comply with state and federal environmental laws. This is an important matter of public policy, with significant implications for environmental protection. It deserves full hearings before the committees of jurisdiction, and the careful deliberation that regular order provides. Because federal courts closely scrutinize waivers of sovereign immunity, and these proposed amendments would affect the waivers of immunity in RCRA and CERCLA, the need for careful deliberation of the proposed legislative language is even greater.

These amendments continue a trend that has intensified in recent years where legislation that could alter or impair state authority over federal facility environmental compliance is often not subjected to regular order with hearings before the Congressional committees with jurisdiction over the environmental laws, but instead is proposed as amendments to authorization or appropriations bills. The National Association of Attorneys General recently gave preliminary approval to a resolution opposing this practice, which we have attached to our testimony.[1]

The Clean Air Act, RCRA and CERCLA have not adversely impacted military readiness.

As far as we are aware, DOD has not identified any cases in which RCRA or CERCLA have adversely impacted military readiness. Nor are we aware of any such instances. Even DOD's own background materials supporting the "Readiness and Range Preservation Initiative" downplay the need for amending RCRA and CERCLA, characterizing the impact on readiness as merely "potentially significant".[2] DOD's sole justification for its proposed amendments to RCRA and CERCLA is that a citizen suit was recently filed in Alaska alleging that the discharge of ordnance onto an operational military range constitutes "disposal" under RCRA and a "release" under CERCLA.[3] Assuming the plaintiffs prevail in this suit, the appropriate relief would be to require DOD to obtain a RCRA permit for the affected range. Such a permit could be crafted in a manner that would protect the environment while allowing DOD to continue training.[4]

Similarly, DOD has not identified any instances in which the Clean Air Act's conformity requirements have actually prevented the military from conducting the activities it believes are necessary to maintain readiness. Instead, it describes some "near misses," and urges that the proposed exemption is necessary to facilitate the next round of base closures in 2005.[5] These "near misses" are cases where, in fact, potentially conflicting environmental requirements and readiness concerns were successfully resolved through the regulatory process. DOD's proposed amendments to the Clean Air Act would allow continued violations of the health-based National Ambient Air Quality Standards without any demonstration that DOD could not make the necessary emissions offsets.

The environmental laws provide ample flexibility to accommodate any conflicts between military readiness and environmental protection.

We think that it is unlikely the Clean Air Act, RCRA, or CERCLA requirements will cause conflicts with military readiness. Based on experience to date, any such conflicts would be rare occurrences. Consequently, we believe that the case-by-case exemption provisions that already exist in each of these laws (described below) are vastly preferable to DOD's proposed across-the-board statutory exemption from environmental requirement. The case-by-case approach accommodates readiness concerns where necessary, and minimizes adverse environmental consequences in the vast majority of cases where there are no conflicts. DOD's approach would weaken environmental protections even in the vast majority of cases where there was no adverse impact on readiness.

The Clean Air Act, RCRA and CERCLA already allow the President to exempt the Department of Defense from their statutory and regulatory requirements on a case-by-case basis.[6] These are not burdensome requirements. All that is required is a finding that doing so is necessary for national security or is in the paramount interests of the United States, depending on the particular statute at issue. For example, President Bush recently made such a finding under RCRA exempting the Air Force facility "near Groom Lake, Nevada, from any Federal, State, interstate or local provision respecting the control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified information concerning the operating location to any authorized person."[7] The entire finding consists of three paragraphs. President Clinton made similar findings annually from 1996 through 2000 regarding this same matter to prevent the release of classified information. We understand that to date, the exemption provisions of the Clean Air Act, RCRA and CERCLA have never been invoked because of military readiness concerns.

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."[8] 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.

Other provisions of the environmental laws provide further flexibility to balance environmental protection with other federal priorities. For example, in 1992, Congress provided EPA authority to issue administrative orders under RCRA to other federal agencies, but required that such agencies have the opportunity to confer with the EPA Administrator before any such order becomes final.[9] Additionally, Congress has created a procedure that allows the Secretary of Defense to temporarily suspend any pending administrative action by another federal agency that the Secretary determines "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."[10] During the suspension, the Secretary and the head of the other federal agency must consult and attempt to mitigate or eliminate the adverse impact of the proposed action on readiness, consistent with the purpose of the proposed action.[11] If they are unable to reach agreement, the Secretary of Defense must notify the President, who shall resolve the matter.[12]

DOD's compliance record warrants a regulatory structure that ensures accountability.

A case-by-case approach to resolving any future potential conflicts between readiness and the requirements of RCRA, CERCLA and the Clean Air Act is preferable to sweeping statutory exemptions because the case-by-case approach provides accountability. Experience since the 1992 Supreme Court decision in U.S. Department of Energy v. Ohio[13] 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 to make 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 93.6% in FY 2000.[14]

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 steadily fallen over time, from a high of 94.2% in FY 1993 to a low of 61.5% in FY 1998.[15] While federal facilities' Clean Water Act compliance rates as a whole rebounded somewhat in FY 1999 and 2000, the overall trend is still downward. DOD's Clean Water Act compliance rates are slightly worse than the federal agency totals.[16]

Compliance statistics alone, telling as they are, do not paint the entire picture of federal agencies' resistance to compliance with environmental requirements. Federal agencies in general, and DOD in particular, have long had a history of resistance to environmental regulation. The history of the Clean Air Act provides a good example. Before 1970, the Clean Air Act encouraged, but did not require, federal agencies to comply with its mandates. Congress determined that this voluntary system was not working, and in 1970 amended the act to require federal agencies to comply. Specifically, Congress added section 118 to the Clean Air Act. The first sentence of the section provides, in relevant part:

Each department, agency, and instrumentality of . . . the Federal Government . . . shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.

42 U.S.C. § 1857f. The 1970 amendments also required the Environmental Protection Agency to establish ambient air quality standards. Each state had to submit plans describing how the state would meet these standards. Kentucky, like most states, submitted a plan that relied on permits as the sole mechanism to establish emissions limitations for air pollution sources, and to establish schedules for achieving compliance with the emissions limitations. Kentucky sought to require several federal facilities (including the Army's Fort Knox, Fort Campbell and others) to obtain permits. The federal agencies refused, arguing that section 118 of the Clean Air Act did not obligate them to comply with "procedural" requirements, such as the need to obtain state permits. Without the permit, there was no way for Kentucky to control air pollution from these federal facilities.

The matter went to court, and ultimately, in Hancock v. Train, [17] the Supreme Court agreed with the federal agencies. Shortly thereafter, Congress amended the Clean Air Act to require federal agencies to comply with procedural requirements, including permit requirements.[18] While the challenge to state authority under the Clean Air Act was pending, federal agencies were also challenging the requirement to obtain state permits under the Clean Water Act's National Pollution Discharge Elimination System program. That challenge resulted in a companion decision to Hancock that also sided with the federal agencies.[19] Again, Congress acted swiftly to amend the Clean Water Act to require federal agencies to obtain discharge permits.[20] More recently, DOD spent years challenging state authority over cleanup of contamination at federal facilities, ultimately losing in the Tenth Circuit.[21]

Nonetheless, DOD continues to challenge state authority over cleanup of contamination at its sites, and in particular to resist state authority over cleanup of munitions-related contamination. In addition, DOD is challenging a number of other environmental requirements:

Ř DOD is refusing to pay penalties for violations of state requirements related to underground petroleum storage tanks.[22]

Ř DOD is appealing a determination by an EPA Administrative Law Judge that the Clean Air Act's command that penalties for violations of the Act be calculated by considering, inter alia, the economic benefit of the violator's non-compliance applies to federal agencies.[23]

Ř DOD is challenging EPA's authority under CERCLA to oversee cleanups at federal facilities on the National Priorities List.[24] Specifically, the Air Force has disputed EPA's authority to require enforceable "institutional controls" and other enforceable requirements in CERCLA Records of Decision. "Institutional controls" are legal mechanisms to restrict land or water use, and are often employed to reduce the cost of cleaning up contaminated sites. We understand that this dispute is holding up cleanups at over 20 DOD CERCLA sites.

Ř DOD is also challenging state authority to require compliance with state institutional control laws. For example, last year DOD testified in opposition to institutional control legislation then pending in Colorado. The pending legislation (which passed without a single "nay" vote and was subsequently enacted into law) created a statutory "environmental covenant" as a mechanism to enforce institutional controls imposed as part of contaminated site cleanups under various environmental laws. DOD argues, inter alia, that state institutional controls do not fall within the scope of RCRA's waiver of federal sovereign immunity for state requirements respecting the control and abatement of solid waste.[25]

The huge extent of DOD's environmental contamination also demands a regulatory structure that ensures accountability.

Accountability is also important because of the environmental impact of military activities. DOD is responsible for far more contaminated sites than any other federal agency. There are 165 federal facilities currently listed on the Superfund National Priorities List; 129 of these are DOD facilities.[26] All together, DOD is responsible for addressing over 28,500 potentially contaminated sites across the country.[27] Through fiscal year 2001, DOD had spent almost $25 billion cleaning up sites for which it is responsible.[28] DOD recently estimated that it would take another $14 billion to complete the remediation of environmental contamination at active, realigning and closing sites.[29]

The $14 billion figure is only a small portion of the remaining costs to remediate DOD's environmental contamination. It does not include the cost to remediate thousands of potentially contaminated "Formerly Used Defense Sites" ("FUDS") in the United States and its territories and possessions. FUDS are properties that were formerly owned, leased, possessed, or operated by DOD or its components.[30] While many FUDS contain "run of the mill" environmental contaminants such as solvents, petroleum storage tanks, etc., unexploded ordnance is a big problem at many of these sites. The GAO estimated recently that unexploded ordnance contamination may exist at over 1,600 FUDS.[31]

DOD recently estimated that it may cost $19 billion to clean up contaminated FUDS.[32] However, this figure is likely understated, for two reasons. First, many states have found that DOD's determinations that specific FUDS do not require any cleanup action are frequently mistaken. In 1998, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) conducted a survey of its members regarding "no further action" determinations made by the Army Corps of Engineers. Nearly half of the responding states (19 out of 39) said that they had reason to believe that the Corps had not made sound environmental decisions in making some "no further action" determinations.[33] Six states had conducted their own environmental or health assessments at 66 of the sites the Corps had designated "no further action." These states determined that 32 of the 66 did require cleanup.[34] Contamination at the 32 sites included high levels of PCBs, unexploded ordnance, leaking underground storage tanks, asbestos, and groundwater contamination.[35]

The second reason DOD's cost estimate for completing cleanup of FUDS is likely understated is that DOD has not yet been able to develop reliable cost estimates for cleaning up unexploded ordnance and related contamination. DOD's recent estimates for unexploded ordnance cleanup vary wildly from $14 billion to over $100 billion.[36] There are two causes for DOD's failure to develop reliable cost estimates for range cleanup. First, DOD does not have a consistent cost methodology.[37] The second, and more fundamental reason, is that DOD has very little data on the nature and extent of unexploded ordnance contamination at current and former ranges.[38]

Despite this lack of data, we do know that the costs of detecting and remediating unexploded ordnance contamination are extremely high. For example, through FY 2001, DOD had spent over $37 million investigating and remediating the former Lowry Bombing and Gunnery Range (a/k/a Buckley Field) near Aurora, Colorado, and expected to spend an additional $71 million to complete cleanup of this site.[39] At the Spring Valley site in the District of Columbia, DOD had spent over $24 million through FY 2001, and expected to spend an additional $73 million.[40]

The bottom line is that unexploded ordnance contamination, both at facilities under DOD's jurisdiction and at FUDS represents an environmental problem of huge dimensions. According to a recent GAO report, DOD estimates that approximately 16 million acres of land on transferred ranges are potentially contaminated with unexploded ordnance.[41] "Transferred" ranges are ranges that have been transferred to the management of another federal agency, or have been transferred out of federal ownership;[42] they are a large part of the FUDS problem. The costs for cleaning up sites like the Lowry Range and Spring Valley may be dwarfed by the sheer magnitude of the remaining FUDS sites, such as the 288 FUDS projects in California that DOD estimates may cost $2.6 billion to address.[43]

In addition to the obvious explosive hazards, some constituents of explosives and munitions contamination have toxic or potential carcinogenic effects,[44] and can cause groundwater contamination. For example, 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, an explosives-related contaminant that migrated from MMR. Subsequently, DOD spent approximately $2 million to hook the town up to an alternate water supply.[45] 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.[46]

DOD's proposed amendments to RCRA, CERCLA and the Clean Air Act are far-reaching, and go far beyond DOD's stated concerns with readiness.

DOD has repeatedly stated that its proposed amendments are very narrowly focused.[47] We disagree. As described above, neither the Clean Air Act, RCRA, nor CERCLA has had any adverse impacts on readiness. All three laws have provisions allowing for waivers of their requirements sufficient to address any potential readiness concerns. And the history of federal agency compliance with environmental requirements suggests that there is no such thing as a "narrow" environmental exemption for federal facilities. Certainly, when one considers the magnitude of the munitions contamination problem at FUDS and other DOD sites, and the groundwater contamination at the Massachusetts Military Reservation, any change in DOD's obligation to comply with cleanup requirements has the potential for large impacts. But the bottom line is that the language of DOD's proposed amendments would create wide loopholes and jeopardize environmental protection, without any corresponding benefit to readiness.

DOD's amendment to RCRA would likely preempt state and EPA authority over munitions-related and explosives-related wastes at active military bases, closing bases, FUDS, and private contractor sites.

Proposed section 2019 would define when munitions, explosives, unexploded ordnance and constituents thereof are "solid wastes" under RCRA, and thus potentially subject to regulation as hazardous wastes.[48] By narrowing this definition, DOD intends to limit the scope of EPA's authority under RCRA, as well as state authority under state hazardous waste laws. The change in the definition of "solid waste" would affect state authority because the term appears in RCRA's waiver of federal sovereign immunity -- the provision of the law that makes DOD subject to state hazardous waste laws. The RCRA waiver of immunity applies to state "requirements respecting the control and abatement of solid waste or hazardous waste disposal and management."[49] Thus, the scope of the 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.[50] By re-defining "solid waste" in a very limited fashion, DOD's proposed amendment will likely preempt state authority over munitions, explosives and the like not only at operational ranges, but -- contrary to DOD's assertions -- also at FUDS, at DOD sites other than ranges, and even at private defense contractor sites.

DOD's proposed amendment to the definition of solid waste provides:

"Sec. 2019. Range management and restoration

(a) Definition of Solid Waste.—(1)(A) The term 'solid waste,' as used in the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et seq.), includes explosives, unexploded ordnance, munitions, munition fragments, or constituents thereof that—

(i) are or have been deposited, incident to their normal and expected use, on an operational range, and—

(I) are removed from the operational range for reclamation, treatment, disposal, treatment prior to disposal, or storage prior to or in lieu of reclamation, treatment, disposal, or treatment prior to disposal;

(II) are recovered, collected, and then disposed of by burial or landfilling; or

(III) migrate off an operational range and are not addressed under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.); or

(ii) are deposited, incident to their normal and expected use, off an operational range, and are not promptly rendered safe or retrieved.

(B) The explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof defined as solid waste in subsection (a)(1)(A) shall be subject to the provisions of the Solid Waste Disposal Act, as amended, including but not limited to sections 7002 and 7003, where applicable.

(2) Except as set out in subsection (1), the term 'solid waste,' as used in the Solid Waste Disposal Act, as amended, does not include explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that—

(A) are used in training military personnel or explosives and munitions emergency response specialists (including training in proper destruction of unused propellant or other munitions);

(B) are used in research, development, testing, and evaluation of military munitions, weapons, or weapon systems;

(C) are or have been deposited, incident to their normal and expected use, on an operational range, except as provided in subsection (a)(1)(A);

(D) are deposited, incident to their normal and expected use, off an operational range, and are promptly rendered safe or retrieved; or

(E) are recovered, collected, and destroyed on-range during range clearance activities at operational ranges, but not including the on-range burial of unexploded ordnance and contaminants when the burial is not a result of product use.

Under section 2019(a)(1), munitions are solid wastes only under the following circumstances: (1) they are or have been deposited, incident to their normal and expected use, on an operational range, and then one of three things happens: they are removed from the range; or are recovered and then buried; or migrate off range and are not addressed under CERCLA; or (2) they are deposited, incident to their normal and expected use, off an operational range, and are not promptly addressed.

Under this definition, munitions that were deposited on an operational range and simply remain there after the range closed or was transferred are not solid wastes, and thus cannot be hazardous wastes. Such residual unexploded ordnance and explosives contamination is precisely the problem at closed, transferring and transferred ranges. Contrary to DOD's assertions that this amendment only affects operating ranges, this amendment would also likely preempt states and EPA from regulating the cleanup of unexploded ordnance and related materials at the 16 million acres of land on closed, transferred, and transferring ranges (i.e., FUDS) that are potentially contaminated with unexploded ordnance. In many cases, this ordnance was deposited on these ranges decades ago.

Proposed section 2019(a) also likely overrides state and EPA authority to address munitions-related environmental contamination that is not on a range at all. To cite just one example, in the normal course of maintaining artillery shells, DOD generates a waste stream from ammunition washout known commonly as "pink water." The water is pink due to the presence of trinitrotoluene (TNT), a constituent of both explosives and munitions (and a possible human carcinogen, according to EPA),[51] in the water. Ammunition washout is not conducted on operational ranges, but has in at least one case led to environmental contamination. At 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. Under section 2019(a)(1)(A), this plume of TNT-contaminated groundwater would not be considered a solid waste (and thus excluded from the scope of the RCRA waiver of immunity), because the explosives constituents have not been deposited on an operational range, nor have they been deposited "incident to their normal and expected use," off an operational range. A similar result would obtain at the Los Alamos National Laboratory (a Department of Energy facility), where explosives constituents have contaminated groundwater approximately 1,000 feet below the ground surface.

Proposed section 2019(a)(2) also exempts from the definition of solid waste explosives and munitions that are used in training or in research, development, testing, and evaluation of military munitions, weapons, or weapon systems. This provision appears to create a wholesale exemption for explosives and munitions. It applies to any facility with such wastes, including private contractor sites and Department of Energy facilities. It arguably even extends to the chemical munitions scheduled for destruction at various military installations around the country.

DOD's proposed amendments to CERCLA are also far-reaching, and also go far beyond DOD's stated concerns with readiness.

Proposed section 2019(b) has similarly broad consequences for CERCLA. This provision states:

(b)(1) 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.), includes the deposit off an operational range, or the migration off an operational range, of any explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof.

(2) 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 explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that are or have been deposited thereon incident to their normal and expected use.

(3)(A) Notwithstanding the provisions of paragraph (2), nothing in this section affects 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 address an imminent and substantial endangerment to the public health or welfare or the environment, including orders to test and monitor.

(B) Nothing in this section affects the ability of a State or other person to request that the President exercise such authority under section 106(a) of such Act to address an imminent and substantial endangerment to the public health or welfare or the environment.

(4) Nothing in this section affects the authority of the Department to protect the environment, safety, and health on operational ranges.

This provision restricts the definition of "release" in CERCLA by excluding "the deposit or presence on an operational range of any explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that have been deposited thereon incident to their normal and expected use." This provision may restrict EPA's authority to use CERCLA section 106 authorities. CERCLA section 106 authorizes action when the President determines the "may be an imminent and substantial endangerment," Section 2019(b)(3)(A) appears to preserve only 106 authorities for situations that pose an actual "imminent and substantial endangerment." The scope of section 106 authority has been the subject of much litigation, including the impact of the phrase "may be" in section 106.[52]

While section 2019 (b) may preserve a narrowed scope of EPA authority under section 106, its overall impact on cleanup of munitions-related contamination on operational ranges is far from clear. The provision appears to eliminate section 104 removal and remedial authority for munitions-related and explosives-related contamination. It also appears to remove cleanup of such contamination from the scope of CERCLA section 120 interagency agreement 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 NPL sites. This provision may also be read to eliminate the requirement that investigation and cleanup of these contaminants be conducted according to standards that apply to all other CERCLA cleanups. By removing these public involvement, procedural, substantive and technical safeguards, section 2019(b) would severely undermine the goal of achieving cleanups that adequately protect human health and the environment.

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."[53] CERCLA's definitions of "removal" and "remedial action" are limited by the definition of "release."[54] 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 arguably precludes state superfund authority over munitions, etc. on operational ranges.

Read in conjunction with proposed § 2019(b)(1), § 2019(b)(2) also likely precludes existing CERCLA and state authority over munitions-related contamination on closed, transferred, and transferring ranges (i.e., FUDS). This statutory construction follows from the fact that section 2019(b)(2) excludes the both the deposit and the presence of munitions-related contamination on an operational range from the definition of release. Consequently, the presence on a closed, transferring or transferred range of munitions- or explosives-related contamination that was deposited when the range was operational could only be considered a "release" if § 2019(b)(1) specifically included the presence of munitions-related contamination on a non-operational range in its definition of release. However, § 2019(b)(1) is ambiguous in this regard. Its reference to "the presence off an operational range" could be read to mean the presence on land adjacent to an operational range, rather than meaning munitions-related contamination that was originally deposited on an operational range, and remains on the range after the range is no longer operational. With respect to state authority, any ambiguities in a waiver of immunity will be construed in favor of a narrow waiver. Additionally, there are several states whose superfund-type laws are tied to definitions in CERCLA. Amending CERCLA's definition of "release" will effect corresponding changes in these states' authorities.

Finally, by re-defining "solid waste" to exclude munitions constituents, 2019(a)(1) may exclude such constituents from being "hazardous substances." This includes many chemicals that may have carcinogenic or other toxic effects.[55] Because natural resource damages are only available for injuries caused by hazardous substances, this amendment may preclude states from bringing natural resource damage claims for munitions-related contamination.

Conclusion

In closing, we do not believe that DOD's far-reaching amendments to RCRA, CERCLA, or the Clean Air Act are warranted. These laws have not impacted readiness, and are not likely to do so. As shown in the preceding portions of our testimony, DOD's proposed amendments to RCRA, CERCLA and the Clean Air Act have little to do with maintaining readiness. They would, however, provide substantial exemptions from environmental requirements. The activities that DOD would exempt from the environmental laws can have significant adverse impacts on human health and the environment. States have historically worked cooperatively with DOD to find solutions to environmental problems at military installations that minimize regulatory burdens while protecting human health and the environment. We would be glad to continue this work with DOD to develop ways to address its readiness concerns within the context of the existing environmental laws.

We would also urge that any proposed legislation on this issue go through a normal legislative process with public hearings before the committees with jurisdiction over the environmental laws. The normal legislative process allows interested parties, including the states -- which are the primary implementers and enforcers of the nation's environmental laws -- an opportunity to present their views on these matters. Such hearings would allow deliberate consideration of any proposed amendments. As we have shown above, seemingly small amendments to the environmental laws can have large effects, particularly when state authority over federal agencies is at stake.

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[1] See Exhibit 1. The resolution should become final and effective on or about July 8, 2002.

[2] "Readiness and Range Preservation Initiative Summary," dated April 18, 2002, p. 7 (attached as Exhibit 2).

[3] Id.

[4] In the 1992 Federal Facility Compliance Act, Congress directed EPA to promulgate regulations that defined when military munitions become solid wastes. However, EPA has only promulgated such regulations for a small subset of military munitions. Thus, there are currently no RCRA regulations governing management of used or fired munitions on active ranges. Nonetheless, EPA would certainly have the discretion to impose environmentally protective permit conditions that would not adversely impact readiness.

[5] Exhibit 2, p. 6.

[6] 42 U.S.C. §§ 6961(a), 7418(b), and 9620(j). The RCRA exemption, § 6961(a), provides:

"The President may exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption."

[7] 66 Fed. Reg. 50807 (Oct. 4, 2001), attached as Exhibit 3.

[8] 42 U.S.C. § 7418(b).

[9] 42 U.S.C. § 6961(b)(2).

[10] 10 U.S.C. § 2014(a) and (d).

[11] 10 U.S.C. § 2014(c).

[12] 10 U.S.C. § 2014(e).

[13] 503 U.S. 607 (1992).

[14] "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, p. 22, attached as Exhibit 4.

[15] Id.

[16] Id. DOD's Clean Water Act compliance rates for FY 1996-2000 were slightly lower than federal agencies as a whole. Id. 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. While the DOD rates also improved in FY 1999 from FY 1998's nadir, they declined again in FY 2000. DOD-specific data for FY 1995 and earlier were not available in time to be included in this testimony.

[17] 426 U.S. 167 (1976).

[18] Pub.L. 95-95, § 116(a).

[19] Environmental Protection Agency v. California, 426 U.S. 200 (1976).

[20] Pub.L. 95-217, §§ 60, 61(a).

[21] U.S. v. Colorado, 990 F.2d 1565 (10th Cir. 1993).

[22] See exchange of letters between State of Hawaii Department of Health and U.S. Army Garrison Hawaii, attached hereto as Exhibit 5.

[23] In the Matter of U.S. Army, Fort Wainwright Central Heating & Power Plant, Docket No. CAA-10-99-0121. Administrative Law Judge Susan L. Biro entered the order against the Air Force on April 30, 2002. Section 113 of the Clean Air Act, 42 U.S.C. § 7413, provides, in relevant part, that the Administrator may "issue an administrative order against any person assessing a civil administrative penalty of up to $25,000, per day," and that in calculating the penalty, the Administrator "shall take into consideration . . . the economic benefit of noncompliance." 42 U.S.C. § 7413(d) and (e). Section 302 of the Clean Air Act, 42 U.S.C. § 7602, defines "person" to include "any agency, department, or instrumentality of the United States." Finally, the waiver of federal sovereign immunity in section 118 of the Clean Air Act, 42 U.S.C. § 7418 states that federal agencies "shall be subject to . . . all Federal . . . process and sanctions . . . in the same manner , and to the same extent as any nongovernmental entity."

[24] See documents posted on EPA's Federal Facilities Restoration and Reuse Office website at http://epa.gov/swerffrr/whatsnew.htm

[25] Personal knowledge of author.

[26] Information from EPA's Superfund website at http://www.epa.gov/superfund/sites/query/queryhtm/nplfin1.htm and from telephone conversation with EPA's Federal Facilities Restoration and Reuse Office.

[27] 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

[28] Id., p. 21.

[29] Id., pp. 27-28, attached as Exhibit 6. 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 of Exhibit 6.

[30] "ENVIRONMENTAL CONTAMINATION: Cleanup Actions at Formerly Used Defense Sites," GAO-01-557 (July 2001), p. 1.

[31] Id. at 2.

[32] "Fiscal Year 2001 Defense Environmental Restoration Program Annual Report to Congress," p. 126.

[33] "No Further Action Survey," Association of State and Territorial Solid Waste Management Officials, December 1998, p. 2. Several of the states that responded they did not have any reason to doubt the Corps' determinations commented that they had not assessed the sites themselves. The complete survey is available on ASTSWMO's website at http://www.astswmo.org/Publications/bookshelf.htm by clicking on "Federal Facilities" and then on "No Further Action Review Efforts at Formerly Used Defense Sites (NOFA FUDS) December, 1998."

[34] Id. at 1.

[35] Id.

[36] "DOD Training Range Cleanup Cost Estimates Are Likely Understated," GAO-01-479 (April 2001), pp. 5 and 13.

[37] Id. at 4.

[38] See Id. at 5; "Fiscal Year 2001 Defense Environmental Restoration Program Annual Report to Congress," Table C-1, showing status of military installations and FUDS with estimated cleanup completion cost estimates exceeding $5 million, attached hereto as Exhibit 7.

[39] Exhibit 7, p. C-1-22.

[40] Id. at p. C-1-25.

[41] "DOD Training Range Cleanup Cost Estimates Are Likely Understated," GAO-01-479 (April 2001), p. 11.

[42] Id. at 8.

[43] Exhibit 7, pp. C-1-8 to C-1-21.

[44] 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 8. Also included in Exhibit 8 are two EPA documents regarding perchlorate, another common munitions constituent.

[45] "Military Cash Flows for New Water Supply," story by Kevin Dennehy, Cape Cod Times, April 24, 2002, attached as Exhibit 9.

[46] "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, attached as Exhibit 10.

[47] See, e.g., Exhibit 2.

[48] 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.

[49] 42 U.S.C. § 6961(a).

[50] Department of Energy v. Ohio, 503 U.S. 607 (1992).

[51] See Exhibit 8.

[52] See, e.g., U.S. v. Conservation Chemical Co., 619 F. Supp. 162, 192 (D.C. Mo. 1985).

[53] 42 U.S.C. § 9620(a)(4).

[54] 42 U.S.C. § 9601(23) and (24).

[55] See, e.g., Exhibit 8.