Fact Sheet on DOD Exemptions 
from the Clean Air Act

1. The National Association of Attorneys General
2. The Environmental Council of the States
3. The Association of State and Territorial Air Pollution Program Administrators/Association of Local Air Pollution Control Officials
4. The National League of Cities
5. The National Association of Counties
6. All major environmental organizations

1. The scope of the DOD exemption is nearly unlimited.
2. DOD has no example of military readiness being negatively affected by the Clean Air Act.
3. The Clean Air Act already contains exemptions that allow DOD facilities exemptions from statutory or regulatory requirements if necessary for military readiness.
4. The DOD bill would create special "Dirty Air" areas near military bases.
5. The DOD bill could undermine state planning efforts.
6. The emissions from DOD activities are not de minimus, nor are the potential effects.

The Clean Air Act and DOD: Background

Under section 176 of the Clean Air Act, the Federal Government must ensure that significant federal actions it seeks to undertake (or fund) "conform" to requirements of the applicable state air quality implementation plan, thereby ensuring that federal actions will not cause or contribute to any violation of the applicable National Ambient Air Quality Standard. In addition, Section 118 of the Clean Air Act already makes clear that the Federal Government is required to comply with the requirements of the Act like any other polluter. These provisions clearly establish that federal entities, like DOD, cannot add to dirty air problems and must do their part to reduce air pollution.

1.  The Scope of the DOD proposal is nearly unlimited.

The DOD exemptions proposal has two major elements.

First, DOD seeks the right to have an exemption from general conformity for up to three years for "military readiness" activities, which are very broadly defined as "all training and operations that relate to combat." Although the "routine operation of installation support facilities," such as offices and military exchanges, is excluded, any combat or training "related" operations (such as the daily operation of military equipment, including the operation of aircraft) is included. There is also no limit on the definition of what constitutes a particular "activity," so that multiple re-basing or training activities could be redefined from year to year, thereby allowing successive three-year exemptions from general conformity -- essentially obviating its intended purpose. The type of activities contemplated by DOD include relocation of entire fleets of aircraft or other military vehicles from one base to another, with significant air quality impacts.

Second, DOD seeks to require approval by the Environmental Protection Agency (EPA) of an applicable state air quality plan, so long as such plan demonstrates that the health based air quality standards would be met, "but for emissions emanating from military readiness activities." Thus, so long as civilian emissions reductions are sufficient to model that the area would be in attainment with the health based air quality standards, EPA must approve the state implementation plan (SIP), regardless of whether the model actually shows that the area will not attain the standard because of military emissions. Under this proposal, as discussed below, areas that are dirty air areas would remain so, as long as DOD is the cause. Such a result is not only inconsistent with actually achieving the public health protection required under the Clean Air Act, it also would deprive the public of the right to a clear understanding of the actual air pollution situation in their particular area.

2. There are no examples of actual adverse effects on Military readiness from the Clean Air Act.

Former Bush Administration EPA Administrator Whitman testified that she was "not aware of any particular area where environmental protection regulations are preventing the desired training" and that she did "not believe that there is a training session, anywhere in the country that is being held up or not taking place because of environmental protection regulation" (Senate Environment and Public Works Committee, February 26, 2003). Her statements apply with equal force to the Clean Air Act as well as RCRA and CERCLA.

DOD has also acknowledged that there has not been any instances in which the Clean Air Act has affected readiness. Deputy Secretary of Defense, Paul Wolfowitz, stated on March 7, 2003, "[I]n the vast majority of cases, we have demonstrated that we are able both to comply with environmental requirements and to conduct military training and testing." Mr. Wolfowitz, however, requested the military departments to identify any "particular environmental restriction that poses a threat to military readiness," so that the existing exemptions under the environmental laws could be used. In the past year, no such exemptions have been identified by the Executive Branch under the Clean Air Act.

The Clean Air Act already provides ample flexibility for DOD to perform its mission in times of war and emergency. This flexibility was included in the existing statute and regulations at DOD's request:

These exemptions, many of which were negotiated with DOD at the time the general conformity regulations were written, provide ample flexibility for DOD to perform its mission in times of emergency or war. DOD's language would obviate the need for these exemptions and allow DOD, on a recurring basis (and for up to three years at a time), to conduct readiness and "combat related" activities without regard to air quality impacts.

DOD seeks to create special dirty air areas in which emissions from military sources would be completely overlooked. Under the DOD bill, "any state that can establish . . . that it would have attained the national ambient air quality standard . . . but for emissions emanating from military readiness activities . . . shall not be subject" to applicable provisions of the Clean Air Act. During the time of the proposed exemption, DOD would be allowed to emit hundreds or thousand of tons of emissions into the relevant airshed; no corresponding offset would ever be required, and despite the sustained and costly efforts of other sources in the airshed, people living in the vicinity of such emissions would continue to breathe unhealthy air. This two-tier standard would undermine public confidence in the Clean Air Act, could increase pressure on private sources to make further reductions and could create considerable difficulty for state and local governments who seek to ensure clean air for everyone.

Under the DOD proposal, areas near military bases would receive less protection from the Clean Air Act. Air could continue to be unhealthy and a source, for instance, of excess asthma and premature mortality, but only because of emissions from military sources. This would violate a bedrock principle of the Clean Air Act, which makes clear that the goal of the Act is to actually attain and maintain air that is "requisite to protect public health" throughout the nation, not just in areas geographically removed from military bases. Under the DOD proposal, areas near military bases would receive less protection from the Clean Air Act.

The DOD bill would allow areas to avoid implementing needed control measures such as reasonably available control technology (RACT) and enhanced inspection and maintenance (I&M), so long as they could argue that emissions from military readiness activities were the reason an area failed to attain. In addition, areas could avoid being "bumped up" to higher classifications, so long as they could argue that their failure to meet air quality standards was due to DOD emissions. Depending upon the reliability of emissions estimates and modeling, this could provide a perverse incentive for DOD to increase its emissions and for industry sources to argue that failure to attain was due to the DOD contribution. The end result is that necessary area-wide control measures, such as RACT, I&M and higher attainment category requirements, could be completely avoided, even though the air remained dirty and unhealthy.

As an initial matter, the conformity regulations already contain de minimus exemptions for emissions from sources that do not meet the definition of a major source. For instance, in the Washington D.C. area, which is a severe area (many less polluted areas will have higher thresholds), the de minimus threshold is 50 tons per year. In 1996, there were more than 50,000 flights from military aircraft in the D.C. area and these flights emitted about 75 tons of nitrogen oxides (NOx) and volatile organic compounds (VOC). This provides a general sense of the magnitude of the exemption that DOD is seeking, since by asking for the right to avoid the general conformity regulations, DOD is targeting increases that, at a minimum, would involve tens of thousands more aircraft flights in a given area. And the exemption could allow an unlimited number of such flights for up to three years per "activity."

DOD claims that "only minor levels of emissions are involved" and has stated that its emissions are typically in the range of 0.5-1 percent of an area's overall emission inventory. However, as noted above, the DOD proposal does not place any limitation on the amount of emissions that could be involved as a result of rebasing one or more aircraft wings, or army divisions. Moreover, emissions budgets in urban areas can be highly constrained and obtaining an offset for one percent of an inventory can be an extremely difficult task. For instance, in the Washington D.C. area, in 1994, a proposed construction of a Disney theme park on the outskirts of the area, beside Interstate 66, which is already an HOV-2 road, was estimated to increase emissions from automobiles equivalent to about one percent of the motor vehicle emissions budget. The motor vehicle emissions budget generally constitutes about half the overall air inventory from all sources in an area. Air quality concerns played a significant role in the decision not to site the Disney facility. Thus an increase from military emissions that represents one percent of the overall emissions budget would be twice as large as the emissions projected to result from the Disney facility -- a daily increase of more than a million civilian vehicle miles traveled.

Because DOD's proposal seeks the right to have its emissions be excluded from consideration when EPA approves an applicable state implementation plan significant adverse health effects could result. DOD emissions might well constitute the additional, incremental fraction of emissions that causes an area to fail to meet health-based standards. That is, in fact, the express purpose of the proposed exemption, since an area that can demonstrate it will attain the standard without controlling emissions from military facilities would not need to invoke the exemption. In a moderate sized area, such as Virginia Beach/Norfolk/Newport News (where there is a significant military presence), DOD seeks the right to expose 1.56 million Americans to unhealthy air in excess of health-based standards. According to analysis by EPA's own expert consultants, Abt Associates, failing to reduce pollution from 2002 emissions to the level that meets EPA's health-based eight-hour ozone standard in that area would result annually in thousands of additional health effects, more than 7,000 additional asthma attacks, numerous additional hospital admissions and emergency room visits and thousands of lost school days. The potential public health effects would be even greater if DOD sought to relocate facilities or training activities nearer a larger, more populated area, such as San Diego, where air quality is extremely poor, the military presence even larger, and many more people are at risk.