Secretary Cohen stresses the importance of Defense preparedness so the United States can lead the world into a new, more peaceful century. Our National Security Strategy works to foster a stable international order, allowing critical regions to be stable and free from domination by hostile powers, where the global economy and trade are free to grow, where democratic norms are widely accepted, and where nations freely cooperate to prevent and also respond to natural and political calamities.
The three elements of the Secretary's defense strategy are: Shape, Respond and Prepare. Environmental Security is active in each of these categories helping:
· SHAPE the international security environmental in ways favorable to U.S. interests, promoting regional stability through military-to-military cooperation
· RESPOND by supporting critical environment and health requirements of military operations
· PREPARE by sustaining access to land, air, and sea for training through responsible management of our installations and training lands.
I'm here today to discuss how Environmental Security is protecting our waters while supporting the Secretary's priorities and defense strategy.
ENVIRONMENTAL SECURITY VISION AND GOALS
Recognizing the Secretary's top priorities - people, readiness, and modernization within the context of the hierarchy of the National Security Strategy Environmental Security prepared a new vision statement this year. The new vision statement emphasizes the importance of integrating environmental, safety and health activities into DoD operations, protecting readiness through wise environmental management of ranges, and supporting modernization by improving the quality and reducing the costs of defense acquisition and procurement.
VISION: To have fully incorporated environmental, health and safety values into the culture of the Department of Defense. These core values are recognized by the uniformed and civilian customers throughout the Department of Defense and its external stakeholders. They are vital parts of all operational and business decisions whereby the safety and health of our people, protection of weapons systems, facilities, and the environment are integrated into all worldwide national defense activities.
We have identified five specific goals within the Environmental Security program to meet the safety, health, and environmental needs of the new millennium.
· Support readiness of U.S. Forces by ensuring access to air, land and water for training and operations · Improve quality of life by protecting military personnel and families from environmental, safety and health hazards and by providing recreational opportunities (e.g., hunting, fishing, camping, hiking) · Ensure weapons systems, logistics, installations, et al., have greater performance, lower lifecycle costs, and minimal health and environmental effects · Serve customers, clients, stakeholders through public participation and advocacy · Enhance international security through military-to-military cooperation.
These goals are the underpinnings for current activity at Environmental Security. The second goal improving quality of life is especially relevant to today's hearing.
DEPARTMENT OF DEFENSE CLEAN WATER PROGRAM
The Department of Defense has long had a policy of full and sustained compliance with environmental laws and regulations. We take our commitment to protecting the men, women, and children living and working on our installations and the surrounding communities very seriously. A significant part of that commitment is protection of the waters of the United States.
The Department of Defense already complies with the Clean Water Act. Our installations have long worked closely with the Federal, state, and local regulators to ensure that our facilities comply with the Federal Water Pollution Prevention Control Act (FWPCA), commonly known as the Clean Water Act. Our installations have permits, comply with discharge standards, and submit regular monitoring reports, just like any other entity subject to the Clean Water Act. In addition, we are subject to enforcement actions and compliance agreements, like any other entity subject to the Clean Water Act.
We are not above the law. The Department of Defense abides by the same standards and regulations as states, local governments, and the private sector. And we have been complying for decades.
The Department has almost 1,900 Clean Water permits throughout the United States. These permits cover domestic wastewater, industrial wastewater, and storm water. In addition, some of our installations discharge wastewater to municipalities and cities. In Fiscal Year 2000, the Department will invest $215 million in upgrading and replacing wastewater treatment infrastructure. On top of these investments, the Department spends millions of dollars each year complying with the day-to-day requirements of these permits operating treatment plants, sampling the water, repairing and maintaining of the plants, submitting regular monitoring reports to the regulators, etc.
Our compliance record in the area of Clean Water is excellent. In 1998, the Department received only 37 enforcement actions. 98 percent of our almost 1,900 permits were in compliance. This is significant. Most of these actions were administrative, such as paper work and late reporting. Still, we can do better. The Military Departments are making great strides to reduce enforcement actions and to reach a state of full and sustained compliance.
Senate 669, Federal Facilities Clean Water Compliance Act of 1999
The Department of Defense is committed to complying with all provisions of the Clean Water Act. In addition, the Department has supported a limited expansion of the waiver of sovereign immunity that would subject us to penalties for all Clean Water Act violations for which a private person would be liable. Whenever possible and consistent with our other statutory obligations, we should be held to the same standard as other private or public entities.
The proposed bill tracks closely the language used in recent years to amend the Resource Conservation and Recovery Act and the Safe Drinking Water Act to expand the waiver of sovereign immunity. The Administration, including the Department of Defense, has supported both of these efforts.
Although the Administration supports the goals of S. 669, we are concerned with one of the provisions the bill. This provision, in rare circumstances, could interfere with our ability to carry out critically important responsibilities in a manner protective of national security.
Presidential Exemption
The proposed bill would eliminate the Presidential Exemption provision currently included in Section 313 of the Federal Water Pollution Control Act. This provision is carefully circumscribed and allows the President to exercise his authority only "in the paramount interest of the United States." Similar provisions for exemption are found in: · the Clean Air Act, 42 USC 7418; · the Safe Drinking Water Act, 42 USC 300j-6; · the Resource Conservation and Recovery Act, 42 USC 6961; and · the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9620j.
Historically, Presidents have used these provisions infrequently, and the standard required is difficult to meet. These exemptions are essential tools to ensure that the President has the flexibility he needs to act quickly and decisively to protect the national interests when strict compliance with these environmental laws would jeopardize the overall interests of the United States. The Presidential Exemption has not been abused.
In fact, the use of the Presidential Exemption can protect our waters. This exemption has only been used twice. In October 1980, President Carter directed the Department of Defense to rapidly construct housing for the Haitian refugees at Ft. Allen in Puerto Rico. An integral part of this housing was a system to collect and treat wastewater. Because the process of obtaining a permit would not allow us to meet the pressing needs of the Haitian refugees in a timely manner, President Carter issued an exemption to the permitting aspects of the Clean Water Act in this specific situation. President Reagan renewed the Exemption for another year in October 1981. The result was that we were able to protect the health of the Haitian refugees. Had we not been able to invoke this Presidential Exemption, the collection and treatment of the wastewater would not have been possible.
The Administration opposes the elimination of the Presidential Exemption provision.
Comprehensive Environmental Response, Compensation and Liability Act Implications
The Department, with the support of the Administration, has consistently opposed efforts to change the waiver of sovereign immunity in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Given that strong opposition, the question arises why the Department can support the changes in the waiver proposed in Senate 669. So you can clearly understand why the Department of Defense has differing positions on waiver of sovereign immunity for these two Acts, I would like to clarify the differences and explain our rationale for opposing the waiver under CERCLA.
Compliance with Environmental Requirements under CERCLA
You may have heard the allegation that the Federal government does not comply with environmental laws to the same extent as private parties. The truth is that the Department of Defense already complies with environmental laws to the same extent as private parties conducting a cleanup under CERCLA. CERCLA already requires the Federal government to cleanup to state standards. The Department of Defense follows the procedural requirements of CERCLA and complies with the substantive requirements of state and Federal environmental laws and regulations. This means that the Department follows the process prescribed by the Environmental Protection Agency for CERCLA and that we meet all the applicable or relevant and appropriate requirements (ARARs) in state and Federal laws. CERCLA exempts all parties from many purely procedural requirements of other state and Federal laws, such as the requirement to obtain permits. This is to speed up the process so that cleanups can be implemented as quickly as possible.
CERCLA is Different from Other Environmental Regulations
Some may perceive that because we support a waiver of sovereign immunity for the Federal Water Pollution Control Act, but do not support an amendment to the current waiver of sovereign immunity in CERCLA that we are being inconsistent. This is far from the case for two important reasons. One there already is a waiver of sovereign immunity in CERCLA, which we believe works very well. The current waiver encourages the Department of Defense and states to reach consensus on disputed issues at the negotiating table rather than resorting to litigation. The negotiation process has worked to change planned cleanups, without increasing the costs of those cleanups by orders of magnitude as, on occasion, a state has sought. Secondly, CERCLA addresses a different type of situation than the other regulations where the Department supports waivers of sovereign immunity. Our job is to determine what contamination is present, if it presents a threat and then to take appropriate action. The Department of Defense is required by provisions of Title 10 to follow the CERCLA process at all of our sites, whether they are on the National Priorities List or not. The Clean Water Act is prospective and seeks to control or limit pollution from occurring. Waiting for approval of a new water permit discharge permit should not impact public health or the environment, because the discharge cannot occur until the permit is approved. However, at CERCLA sites, the contamination already at the site can spread during the wait with the potential for impacting public health and the environment and increasing costs significantly. Similarly, imposing other processes under state law to cleanup actions required by Federal law to be performed under CERCLA would slow down the cleanup process, and create duplication of effort and confusion.
The Department of Defense believes that a waiver of sovereign immunity for the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) modeled after the Federal Facility Compliance Act of 1992 (FFCA) is inappropriate. For a more complete discussion, we will be pleased to provide a copy of a Report to Congress on the Potential Impacts of the Proposed Amendment to the CERCLA Waiver of Sovereign Immunity we prepared with the Department of Energy in February of this year.
CONCLUSION
In summary, the Department supports almost all of the entire bill. However, we believe the bill should be amended to retain a Presidential Exemption provision in the present law.
We would be happy to meet with your staff to discuss our concerns with this proposed bill.
Thank you.