INTRODUCTION

This statement is submitted on behalf of the Attorneys General of Arizona, California Colorado, Delaware, Hawaii, Idaho, Massachusetts, New Hampshire, New Mexico, New York, Northern Mariana Islands, Oregon, South Dakota, Utah and Washington. Our statement addresses the Department of Defense's recent proposed legislation to amend the Clean Air Act, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental, Response, Compensation and Liability Act (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. Historically, however, military training activities have caused adverse impacts on human health and the environment, and resulted in expensive cleanups. For example, there are 129 DOD facilities on the Superfund National Priorities List. 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 instance 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. And we note that Christine Whitman, the Administrator of the Environmental Protection Agency, recently testified before the Senate Environment and Public Works Committee that she was not aware of any training mission anywhere in the country that was being held up or not taking place because of these laws.[1] 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, not weakened. Certainly, any amendments that would weaken the protections these laws provide must be justified by important countervailing considerations that are supported by facts. While we certainly agree that maintaining readiness is necessary, the lack of any demonstrated conflict with RCRA, CERCLA and Clean Air Act requirements and the inherent flexibility of these laws cause 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. 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. We disagree with DOD's statements that the amendments to RCRA and CERCLA only apply to "operational" ranges. As described more specifically later in this statement, DOD's proposed amendments to RCRA and CERCLA would likely have the following results:

Ø Section 2019 will likely be interpreted to preempt or impair state authority over munitions, explosives and the like not only at operational ranges, but -- contrary to DOD's assertions -- also at former military ranges now in private ownership, DOD sites other than ranges, Department of Energy facilities, and even at private defense contractor sites.

Ø Section 2019 may preempt or impair EPA and state authority under RCRA and analogous state laws to require cleanup not only of unexploded ordnance, but also the chemical constituents of the ordnance – such as perchlorate, TNT, or RDX -- that may have leached out and contaminated the soil and groundwater. Again, this is not limited to operational ranges, but would likely extend to other federal facilities, former military ranges now in private ownership, and defense contractor sites.

Ø Subsection 2019(a) would likely preempt states and EPA from using RCRA authorities to regulate the cleanup of unexploded ordnance and other munitions-related contamination at 16 million acres of land on closed, transferred, and transferring ranges that DOD estimates are potentially contaminated with unexploded ordnance. Much of this land is in private ownership.

Ø Proposed paragraph 2019(a)(2) appears to provide a wholesale exemption for munitions and explosives-related contamination that also likely extends beyond ranges to other federal facilities and even to defense contractor sites. This exemption may encompass waste streams from the manufacture of explosives and munitions constituents, such as perchlorate contamination.

Ø Paragraph 2019(b)(2) arguably precludes state superfund authority over munitions-related contamination on operational ranges.

Ø Paragraph 2019(b)(2) also likely precludes prevents states from requiring cleanup of munitions-related contamination on 16 million acres of closed, transferred, and transferring ranges under state superfund-type laws.

Finally, we are concerned with the legislative process by which these proposed amendments have been considered. As we understand it, DOD has requested that the proposed amendments be included as part of the Defense Authorization Bill. 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 should be subjected to regular order with hearings before the Congressional committees with jurisdiction over the environmental laws, not proposed as amendments to authorization or appropriations bills. Last summer, the National Association of Attorneys General approved a resolution urging the Congress to only consider laws that might impair state authority over federal facilities through regular order.[2]

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" for 2002 downplay the need for amending RCRA and CERCLA, characterizing the impact on readiness as merely "potentially significant".[3] DOD's justification for its proposed amendments to RCRA and CERCLA is a citizen suit filed in Alaska. According to DOD, this suit alleges that the discharge of ordnance onto an operational military range constitutes "disposal" under RCRA and a "release" under CERCLA.[4] DOD concludes that if munitions used for their intended purpose are considered to be statutory solid waste, the Army could be forced to perform corrective action or remediation of Eagle River Flats, and live-fire training during the remediation would be impossible.

We disagree with DOD's conclusion. First, there are no RCRA imminent and substantial endangerment or illegal disposal allegations in the Ft. Richardson citizen suit. Plaintiffs in that suit did allege violation of an Alaska statutory provision that prohibits pollution.[5] The cited provision is not part of Alaska's hazardous waste regulatory program; indeed, Alaska does not have a state hazardous waste program, much less an authorized program under RCRA. Plaintiffs in this case have never even alleged that used or fired munitions are a RCRA statutory solid waste. Thus, if this case were decided adversely to the Army, it would not set any precedent regarding RCRA.

Even if DOD's characterization of the plaintiff's complaint were correct, the likelihood that cleanup requirements would preclude training is remote. First, remediation would only be required if the munitions or munitions constituents posed a risk to human health or the environment. Generally speaking, this would only occur in situations where munitions constituents were contaminating environmental media, such as ground or surface water. Assuming that some remediation were required, there is no evidence to suggest that remediation of environmental contamination would impact military readiness. Remedial approaches to contaminated sites are quite varied, and inevitably site-specific. Without knowing the specific details of what the problem is, and what the remedial alternatives are, there is simply no basis for assessing the impacts, if any, of cleanup on training.

The underlying premise of DOD's position seems to be that if used or fired military munitions are considered statutory solid wastes under RCRA, or hazardous substances under CERCLA, the inevitable consequence will be that states will impose remedial requirements that will conflict with military readiness. DOD has cited no evidence to support this premise. States have regulated cleanup of contaminated Department of Energy nuclear weapons facilities and Department of Defense sites for decades in a responsible manner. We believe that state and EPA regulators have demonstrated their consistent willingness to resolve differences with regulated federal officials, and to develop creative approaches that balance defense concerns with environmental protection. But if there were a case where state or EPA regulators believed that environmental contamination at an operation range required remediation to protect human health and the environment, and adverse impacts on readiness could not be avoided, RCRA and CERCLA already allow DOD to seek an exemption from such requirements on the basis of national security.

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.[6] 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.

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, 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 requirements. 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. Conversely, DOD's approach weakens environmental protections unnecessarily in the vast majority of cases where there is 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.[7] 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."[8] The entire finding consists of three paragraphs. President Clinton made similar findings annually from 1996 through 2000 regarding this same matter. 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."[9] 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. The Clean Air Act's "general conformity" regulations that DOD's amendments would override contain still more flexibility. These regulations allow DOD to set aside clean air requirements for up to six months in response to “emergencies,” which, by definition, include responses to terrorist activities and military mobilizations. This exemption is renewable every six months through a written determination by DOD.[10]

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.[11] 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."[12] 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.[13] If they are unable to reach agreement, the Secretary of Defense must notify the President, who shall resolve the matter.[14]

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[15] 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.[16]

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 from a high of 94.2% in FY 1993 to a low of 61.5% in FY 1998.[17] DOD's Clean Water Act compliance rates are slightly worse than the federal agency totals.[18]

Compliance statistics alone, telling as they are, do not paint the entire picture of federal agencies' failure to comply 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, [19] 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.[20] 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. Interpreting a similar waiver of immunity, the Supreme Court again sided with the federal agencies.[21] Again, Congress acted swiftly to amend the Clean Water Act to require federal agencies to obtain discharge permits.[22] More recently, DOD spent years challenging state authority over cleanup of contamination at federal facilities, ultimately losing in the Tenth Circuit.[23]

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:

Ø DOD is refusing to pay penalties for violations of state requirements related to underground petroleum storage tanks.[24]

Ø 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.[25]

Ø DOD is also challenging state and EPA authority to require compliance with "institutional controls." "Institutional controls" are legal mechanisms to restrict land or water use, and are often employed to reduce the cost of cleaning up contaminated sites. 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.

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]

But the need for cleanup of active and closing bases is only part of the picture. DOD is also responsible for assessing and cleaning up thousands of potentially contaminated "Formerly Used Defense Sites" ("FUDS") in the United States and its territories and possessions.[30] Many FUDS are former bombing or gunnery ranges that contain unexploded ordnance. The GAO estimated recently that unexploded ordnance contamination may exist at over 1,600 FUDS.[31] DOD estimates that approximately 16 million acres of land on transferred ranges are potentially contaminated with unexploded ordnance.[32] There are no reliable data on the cost of addressing the contamination at these former ranges and other FUDS. DOD's recent estimates for unexploded ordnance cleanup vary from $14 billion to over $100 billion.[33] 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.[34] 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.[35] 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.[36]

The bottom line is that unexploded ordnance contamination at FUDS represents an environmental problem of huge dimensions. As shown below, DOD’s proposed amendments would likely be read to preempt state authority over cleanup of these sites. Independent state oversight is needed to ensure these sites are cleaned up in a manner that protects human health and the environment.[37]

In addition to the obvious explosive hazards of unexploded ordnance, some constituents of explosives and munitions contamination have toxic or potential carcinogenic effects,[38] and can cause groundwater contamination. For example, perchlorate is a chemical widely used in solid rocket fuel and munitions. It interferes with iodide uptake into the thyroid gland, and disrupts the thyroid function. The Wall Street Journal has reported that EPA is concerned that fetuses and newborn babies may be particularly sensitive to exposure to perchlorate.[39] Live-fire training at the Massachusetts Military Reservation (MMR) over several decades has contaminated large amounts of groundwater in the sole source drinking water aquifer for the Cape Cod area. Recently, the Town of Bourne closed half of its drinking water supply wells due to contamination by perchlorate that migrated from MMR. Subsequently, DOD spent approximately $2 million to hook the town up to an alternate water supply.[40] 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.[41] Similarly, military training activities at the Aberdeen Proving Ground have contaminated groundwater there with perchlorate, again prompting closure of a municipal water supply well that had been contaminated.[42]

Indeed, perchlorate contamination from military training, research, and production activities has caused widespread groundwater contamination in at least 22 states, according to the Wall Street Journal.[43] DOD's proposed legislation would likely be read to preempt or impair state authority to address many of these sites, including some privately-owned defense contractor sites, under RCRA, CERCLA, and analogous state laws.

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.[44] 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. Considering the magnitude of the munitions contamination problem at FUDS and other DOD sites, and the groundwater contamination at sites such as the Massachusetts Military Reservation and the Aberdeen Proving Grounds, any change in DOD's obligation to comply with cleanup requirements has the potential for large impacts. But the bottom line is that DOD's proposed amendments likely create broad exemptions that jeopardize the states' ability to protect their citizens' health and environment, without any corresponding benefit to readiness.

DOD's amendment to RCRA would likely be read to preempt or impair 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.[45] By narrowing this definition, DOD's amendments 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."[46] Thus, the scope of the RCRA sovereign immunity waiver will likely be affected by amendments to RCRA's definition of solid waste. And because waivers of immunity are construed extremely narrowly, any ambiguity in the definition of solid waste will likely be construed in the way that results in the narrowest waiver.[47] By re-defining "solid waste" in a very limited fashion, DOD's proposed amendment will likely preempt or impair state authority over munitions, explosives and the like not only at operational ranges, but -- contrary to DOD's assertions -- also at FUDS, DOD sites other than ranges, DOE facilities, and even at private defense contractor sites.

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

"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 subparagraph (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 subparagraph (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, and remain on an operational range, except as provided in subparagraph (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.

"Nothing in subparagraphs (2)(A), (B), (C), (D), or (E) hereof affects the legal requirements applicable to explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that have been deposited on an operational range once the range ceases to be an operational range."

(Italics indicate substantive changes from the 2002 version of DOD's proposal.)

As an initial matter, paragraph 2019(a)(1) applies to an extremely broad ranges of items. It does not just cover munitions, munitions fragments, explosives, ordnance, and unexploded ordnance, but also constituents of any of those items. That means it applies not just to unexploded ordnance that may contaminate an area, but also to the chemical constituents of the ordnance – such as perchlorate, TNT, or RDX -- that may have leached out and contaminated the soil and groundwater. For convenience, we will generally refer only to munitions when describing the scope of section 2019, but it is well to remember that it actually covers many more items.

Paragraph 2019(a)(1) sets forth the circumstances under which munitions are solid wastes. Again, because the term "solid waste" is used in RCRA's waiver of immunity, it will be construed narrowly. Thus, under paragraph 2019(a)(1), the only circumstances under which munitions will be considered solid wastes are if: (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 rendered safe or retrieved.

Subparagraph 2019(a)(2)(C) compels the same conclusion, because it expressly limits the instances in which munitions-related materials that "are or have been deposited, incident to their normal and intended use, on operational ranges," to the circumstances set forth in 2019(a)(1). This year, DOD has added a sentence to the end of section 2019 that it says limits the scope of this section to only "operational" ranges.

We disagree that the new language limits the reach of section 2019. First, it only limits the impact of paragraph 2019(a)(2), not paragraph 2019(a)(1). As noted above, because of the narrow construction courts place on waivers of immunity, even absent the language of 2019(a)(2)(C), paragraph 2019(a)(1) likely will be read as defining the exclusive universe of circumstances under which states may regulate munitions pursuant to the RCRA waiver. Paragraph 2019(a)(1) excludes from the definition of solid waste munitions that were deposited on an operational range while it was operational and remain there after it closed.

Second, the new language is ambiguous. It can be read to mean that nothing in paragraph 2019(a)(2) affects the legal requirements applicable to munitions that were deposited on a range after the range ceased to be operational. This would result in a narrower waiver of immunity than the interpretation DOD has proffered, and consequently would likely be the interpretation a federal court would adopt.

Third, in 1997, EPA deferred promulgation of a rule that would have codified EPA's interpretation that munitions left in place at the time a range closed or was transferred out of military control are solid wastes as defined in RCRA.[48] In light of EPA's regulatory inaction, DOD may argue that there currently are no legal requirements applicable to munitions that were deposited on a range while it was operational, and remain there after it has closed.[49] It could then argue that subparagraph 2019(a)(2)(C) precludes EPA from promulgating any such regulation in the future, because the munitions are not a solid waste as defined in RCRA.

Even with DOD's revision to proposed section 2019, munitions that were deposited on an operational range and simply remain there after the range closed or was transferred are not solid wastes under RCRA, 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 be read to 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.

In addition, paragraph 2019(a)(1) is not limited to ranges on military bases. Under EPA's "Military Munitions Rule" (see below),[50] a range may include land owned by an entity under contract with DOD or DOE that is set aside for researching, developing, testing and evaluating military munitions and explosives. In other words, a military range may include defense contractor facilities.[51] Paragraph 2019(a)(1) may thus preempt state and EPA authority under RCRA and analogous state laws to address groundwater contaminated with perchlorate or other munitions constituents at defense contractor sites that may be considered ranges, potentially including some of those described in the Wall Street Journal article.[52]

Proposed subsection 2019(a) may well override 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),[53] 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 subparagraph 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 paragraph 2019(a)(2) provides a broad exemption that may also encompass munitions-related contamination at defense contractor sites. This paragraph 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 is not limited to ranges at all, but instead applies to any facility with such wastes, such as facilities owned and operated by defense contractors who produce munitions constituents, including perchlorate, TNT, or RDX, or who produce munitions, weapons, or weapons systems. Because this exemption includes munitions and explosives constituents, it may extend to waste streams from the production of munitions or explosives. Thus, under paragraph 2019(a)(2), the perchlorate contamination from the Aerojet-General corporation's plant near Rancho Cordova, California, or from the Kerr-McGee ammonium perchlorate production facility in Henderson, Nevada, that are described in the Wall Street Journal article[54] likely would not be subject to regulation as a solid or hazardous waste under RCRA.

Proposed subsection 2019(a)(2) may even extend to the chemical munitions scheduled for destruction at various military installations around the country. If DOD conducts or has conducted research or evaluation of chemical munitions constituents (such as mustard agent) -- even for defensive purposes -- under subparagraph 2019(a)(2)(A), these materials could be considered exempt from the definition of solid waste. Currently, states have the authority to regulate the scheduled destruction of chemical agent stockpiles around the United States under RCRA. For example, Colorado is planning to issue a permit for the destruction of 780,000 rounds of mustard agent at the Pueblo Chemical Depot. DOD's proposed amendments may call into question Colorado's and other states' authority over the destruction of these chemical weapons.

DOD's amendments do not simply codify EPA's "Military Munitions Rule"

DOD states that its proposed amendments would "clarify and confirm" EPA's "Military Munitions Rule." We disagree. DOD's proposal differs from the munitions rule in at least four significant ways. First, DOD's proposal narrows RCRA's statutory definition of solid waste, while the munitions rule does not affect RCRA's statutory definition of solid waste. Thus, unlike the munitions rule, this statutory change precludes states and EPA from using RCRA's imminent and substantial endangerment authorities to address most munitions-related contamination. In addition, changing the statute's definition of solid waste likely narrows RCRA's waiver of immunity and likely limits EPA's authority to regulate munitions under RCRA, as described below.

Second, by narrowing the statutory definition of solid waste, a term used in RCRA's waiver of sovereign immunity, DOD's amendments likely narrow the waiver of immunity. The amendments may thus preempt state authority to require the cleanup of most munitions-related contamination, including unexploded ordnance and perchlorate contamination, under RCRA. In contrast, the munitions rule does not preempt state authority at all. When it first proposed the munitions rule, EPA solicited comment on a regulatory approach that would preempt states from enforcing broader or more stringent requirements respecting military munitions.[55] In the final rule, EPA determined not to adopt such an approach, and expressly acknowledged that under RCRA sections 3006 and 3009, "States may adopt requirements with respect to military munitions that are more stringent or broader in scope than the Federal requirements."[56]

Third, as described above, DOD's proposal likely prevents EPA from promulgating additional regulations under RCRA governing the cleanup of munitions on non-operational ranges, because they are excluded from the statute's definition of solid waste. Under the munitions rule, EPA expressly reserved promulgation of such regulations for future decision.[57]

Fourth, by including the phrase "or constituents thereof," in paragraphs 2019(a)(1) and (a)(2), DOD's proposal may well preempt state and EPA authority over munitions-related and explosives-related constituents that have leached from the munitions and are contaminating the environment. These include chemicals such as perchlorate, RDX, TNT, DNT and white phosphorous. The munitions rule does not address munitions constituents at all, and does not prevent EPA or the states from requiring cleanup of these chemicals when they leach from munitions into the soil or groundwater.[58]

DOD's proposed amendments to CERCLA go far beyond DOD's stated concerns with readiness.

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

"(b) Definition of Release.—(1) The term 'release,' as used in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.), 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 and remain thereon.

"(3) Notwithstanding the provisions of paragraph (2), the authority of the President under section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9606(a)), to take action because there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance includes the authority to take action because of the deposit or presence on an operational range of any explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof that are or have been deposited thereon incident to their normal and expected use and remain thereon.

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

DOD's proposed change to the definition of "release" 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."[59] CERCLA's definitions of "removal" and "remedial action" are limited by the definition of "release."[60] 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," paragraph 2019(b)(2) arguably precludes state superfund authority over munitions-related contamination on operational ranges.

Read in conjunction with proposed paragraph 2019(b)(1), paragraph 2019(b)(2) also may be read to preclude prevents states from requiring cleanup of munitions-related contamination on closed, transferred, and transferring ranges (i.e., FUDS) under state superfund-type laws. This statutory construction follows from the fact that paragraph 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 paragraph 2019(b)(1) specifically included the presence of munitions-related contamination on a non-operational range in its definition of release.

However, paragraph 2019(b)(1) only says that the deposit or migration of munitions-related contaminants off an operational range constitutes a release under CERCLA. Thus, under subsection 2019(b), munitions-related contamination on a former military range that arises from the deposit of such materials on the range while it was still operational may not be considered a "release" under CERCLA, and would not fall within the scope of CERCLA's waiver of immunity. States may thus be precluded from using their state superfund-type laws to require DOD to address munitions-related contamination, including residual unexploded ordnance or soil or groundwater contaminated with munitions constituents such as perchlorate, RDX, or TNT at former military ranges. Additionally, there are several states whose superfund-type laws are tied to definitions in CERCLA. Amending CERCLA's definition of "release" may limit these states' ability to require parties other than DOD to clean up such contamination at former ranges.

Subsection 2019(b)'s overall impact on EPA's CERCLA authority to clean up munitions-related contamination on operational ranges is far from clear. While preserving the President's authority under CERCLA section 106, this provision appears to eliminate section 104 removal and remedial authority for munitions-related and explosives-related contamination. It also appears to remove the cleanup of such contamination from the scope of CERCLA section 120 interagency agreements for sites on the National Priorities List. This means that EPA will no longer have authority to select (or concur in) remedies for munitions- and explosives-related contamination at 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) may undermine the goal of achieving cleanups that adequately protect human health and the environment.

Finally, section 2019 may limit state and federal authority to pursue natural resource damage actions for contamination caused by munitions and explosives constituents. Natural resource damages are only available for releases of hazardous substances that cause injury to, loss of, or destruction of natural resources.[61] By restricting the definition of solid waste to exclude munitions and explosives constituents, subsection 2019(a) may exclude some such constituents from being "hazardous substances" under CERCLA.[62] And by restricting the definition of "release" under CERCLA, subsection 2019(b) restricts the number of sites where natural resource damage claims may be pursued.

Conclusion

DOD's far-reaching amendments to RCRA, CERCLA, or the Clean Air Act are not 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.

ATTACHMENT TO TESTIMONY

[1] As reflected in the record of the Senate Environment and Public Works Hearing of February 26, 2003 on the President’s 2004 Budget for the Environmental Protection Agency.

[2] See Exhibit 1.

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

[4] Id.

[5] Plaintiff's Amended Complaint for Declaratory and Injunctive Relief, para. 29, Alaska Community Action on Toxics, et al. v. United States, A02-0083 CV, filed June 26, 2002 (attached as Exhibit 3). Plaintiffs' complaint never cites RCRA's imminent and substantial endangerment provision; instead, it cites 42 U.S.C. § 6972(a)(1)(A), the RCRA citizen suit provisions authorizing suit against any person "alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter" as a jurisdictional basis for the suit. See para. 3 of Exhibit 3. In paragraph 29, plaintiffs allege that the Army's violation of Alaska Statutes § 46.03.710 constitutes a violation of RCRA's waiver of immunity provision, 42 U.S.C. § 6961(a). Alaska Statutes § 46.03.710 states: "A person may not pollute or add to the pollution of the air, land, subsurface land, or water of the state."

[6] Exhibit 2, p. 6.

[7] 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."

[8] 67 Fed. Reg. 78425 (Dec. 24, 2002), attached as Exhibit 4.

[9] 42 U.S.C. § 7418(b).

[10] 40 C.F.R. 93.153(d)(2), 93.153(e); 40 C.F.R. 152.

[11] 42 U.S.C. § 6961(b)(2).

[12] 10 U.S.C. § 2014(a) and (d).

[13] 10 U.S.C. § 2014(c).

[14] 10 U.S.C. § 2014(e).

[15] 503 U.S. 607 (1992).

[16] "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.

[17] Id. While federal facilities' Clean Water Act compliance rates as a whole rebounded somewhat in FY 1999 and 2000, the overall trend is still downward.

[18] 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.

[19] 426 U.S. 167 (1976).

[20] Pub.L. 95-95, § 116(a).

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

[22] Pub.L. 95-217, §§ 60, 61(a).

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

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

[25] 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."

[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. FUDS are properties that were formerly owned, leased, possessed, or operated by DOD or its components.

[31] Id. at 2.

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

[33] Id., pp. 5 and 13.

[34] "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 at p. C-1-22.

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

[36] Id., pp. C-1-8 to C-1-21.

[37] For example, 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. 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. Contamination at the 32 sites included high levels of PCBs, unexploded ordnance, leaking underground storage tanks, asbestos, and groundwater contamination. "No Further Action Survey," Association of State and Territorial Solid Waste Management Officials, December 1998. 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."

[38] 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 7. Also included in Exhibit 7 are two EPA documents regarding perchlorate, another common munitions constituent.

[39] "A Fuel of Cold War Defenses Now Ignites Health Controversy," 12/16/2002 article by Peter Waldman, reported on page 1 of the Wall Street Journal, attached as Exhibit 8.

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

[41] "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.

[42] "Group calling for cleanup of perchlorate in Aberdeen," 10/3/2002 article by Lane Harvey Brown in the Baltimore Sun, attached as Exhibit 11.

[43] See Exhibit 8.

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

[45] 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.

[46] 42 U.S.C. § 6961(a).

[47] Department of Energy v. Ohio, 503 U.S. 607 (1992). See also the discussion of Hancock v. Train, supra.

[48] "Military Munitions Rule," 62 Fed. Reg. 6622, 6632 (2/12/97). Under this interpretation, such munitions would have been statutory solid wastes, but not "regulatory" solid wastes. (EPA's regulatory definition of solid waste is narrower than the statutory definition. See 40 CFR 261.2.) Both regulatory and statutory solid wastes may be subject to RCRA's imminent and substantial endangerment provisions (42 U.S.C. §§ 6972 and 6973) and, if located at a facility subject to RCRA permitting requirements, its corrective action authorities (see 42 U.S.C. §§ 6924(u) and (v) and 6928(h)). However, only regulatory solid wastes are subject to the full panoply of RCRA permit and management requirements. See 42 U.S.C. § 6903(27); Military Toxics Project v. EPA, 146 F.3d 948, 950-51 (D.C. Cir. 1998). EPA also proposed that its interpretation of munitions on closed ranges as solid wastes would "sunset" if and when DOD promulgated a rule allowing for public involvement in the cleanup of closed and transferred ranges. EPA decided to postpone action on this rule in part because many commenters argued that DOD had no authority to promulgate such a rule, and that such deferral would be contrary to the Federal Facility Compliance Act. When Congress passed the Federal Facility Compliance Act, it rejected a Senate proposal that would have allowed DOD to regulate waste munitions, in favor of state and EPA regulation under RCRA. See House Conf. Rep. No. 102-886 (Sept. 22, 1992), pp. 28-29.

[49] EPA's final munitions rule -- including its decision to