<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:91745.wais]
S. Hrg. 108-308
ENVIRONMENTAL LAWS: ENCROACHMENT ON MILITARY TRAINING?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 2, 2003
__________
ON
THE IMPACT OF ENVIRONMENTAL LAWS UPON MILITARY TRAINING PROCEDURES AND
UPON THE NATION'S DEFENSE SECURITY
Printed for the use of the Senate Committee on Environment and Public
Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
first session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texaa BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
APRIL 2, 2003
OPENING STATEMENTS
Allard, Hon. Wayne, U.S. Senator from the State of Colorado...... 8
Boxer, Hon. Barbara, U.S. Senator from the State of California... 10
Letter, City of Rialto, California........................... 12
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 37
Cornyn, Hon. John, U.S. Senator from the State of Texas.......... 34
Article, Birds and Warriors, Wall Street Journal............. 36
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 18
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 2
Memorandum, issues relating to the hearing on encroachment,
prepared by minority staff................................. 6
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 14
Memorandum, exemptions of military training requirements
under environmental laws, Deputy Secretary of Defense Paul
Wolfowitz.................................................. 15
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 18
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 9
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 10
WITNESSES
Benevento, Douglas, Executive Director, Colorado Department of
Public Health And Environment.................................. 46
Prepared statement........................................... 204
Clark, Jamie, Senior Vice President for Conservation Programs,
National Wildlife Federation................................... 48
Prepared statement........................................... 209
Responses to additional questions from:
Senator Graham........................................... 231
Senator Jeffords......................................... 230
Cohen, Bonner, Senior Fellow, Lexington Institute................ 51
Prepared statement........................................... 235
Cohen, Hon. Benedict S., Deputy General Counsel for Environment
and Installations, Department of Defense....................... 20
Prepared statement........................................... 58
Responses to additional questions from:
Senator Boxer............................................ 84
Senator Graham........................................... 77
Senator Inhofe........................................... 70
Senator Jeffords......................................... 81
Senator Reid............................................. 88
Gaffney, Frank J., Jr., President and CEO, Center for Security
Policy......................................................... 40
Prepared statement........................................... 115
Responses to additional questions from Senator Inhofe........ 116
Holman, Barry W., Director, Defense Infrastructure Issues,
General Accounting Office...................................... 41
Prepared statement........................................... 118
Responses to additional questions from Senator Inhofe........ 126
Lindemann, Ingrid, Council Member, Aurora, Colorado, National
League of Cities Advisory Council.............................. 50
Prepared statement........................................... 232
Responses to additional questions from:
Senator Boxer............................................ 235
Senator Inhofe........................................... 234
Manson, Hon. H. Craig, Assistant Secretary for Fish, Wildlife and
Parks, U.S. Department of the Interior......................... 24
Prepared statement........................................... 104
Responses to additional questions from:
Senator Boxer............................................ 113
Senator Graham........................................... 112
Senator Inhofe........................................... 109
Senator Jeffords......................................... 113
Miller, Dan, First Assistant Attorney General, Natural Resources
and Environment Section, Colorado Department of Law............ 44
Prepared statement........................................... 129
Resolution, National Association of Governors..............141, 143
Suarez, Hon. J.P., Assistant Administrator for Enforcement and
Compliance Assurance, Environmental Protection Agency.......... 22
Prepared statement........................................... 95
Responses to additional questions from:
Senator Boxer............................................ 102
Senator Inhofe........................................... 98
Senator Jeffords......................................... 102
ADDITIONAL MATERIAL
Articles:
Group Calls for Cleanup of Perchlorate in Aberdeen........... 203
Cleaning Cape Code Pollution, Boston Globe................... 201
Fuel of Cold War Defenses Now Ignites Health Controversy,
Wall Street Journal........................................ 192
Military Cash Flows for New Water Supply, Cape Cod Times..... 198
Court brief, DOD vs. Alasks environmental organizations.........152-166
Letters:
Association of State and Territorial Solid Waste Management
Officials................................................252, 254
Pollution and military training issues......................169-191
STAPPA/ALAPCO................................................ 257
Regulations, Groom Lake, Nevada, Federal Register................ 167
Resolutions, National Association of Attorneys General.........141, 143
Reports, USFWS and DOD land use agreements......................216-230
Statements:
California Department of Toxic Substances Control, Edwin
Lowry...................................................... 236
U.S. Army, Col. Addison D. Davis, Fort Bragg, North Carolina. 239
U.S. Air Force, Col. Frank C. DiGiovanni, Chief, Ranges,
Airfields and Airspace Operations and Requirements Division 249
U.S. Navy, Rear Admiral Jonathan W. Greenert, Deputy
Commander, Pacific Fleet................................... 244
ENVIRONMENTAL LAWS: ENCROACHMENT ON MILITARY TRAINING?
----------
WEDNESDAY, APRIL 2, 2003
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:32 a.m. in room
406, Senate Dirksen Building, the Hon. James M. Inhofe
[chairman of the committee] presiding.
Present: Senators Inhofe, Jeffords, Allard, Wyden, Thomas,
Lieberman, Boxer, Crapo, Reid, Murkowski, Cornyn, Warner, and
Carper.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Good morning. The hearing will come to
order. In this time right now of war we are all concerned about
the brothers and sisters and sons and daughters that are out
there sacrificing their lives and risking their lives for us.
For those who embrace the precautionary principle, now is the
time to take precautions in the defense of our country in the
interest of the lives of our sons and daughters and our sisters
and brothers. I do not think anyone doubts that they need and
deserve the very best training. Training is what this is all
about today.
Yesterday we had a hearing before the Armed Services
Subcommittee on Readiness that I used to chair. We talked about
this. This is a life and death issue. This is not something to
be taken lightly. There are five people who are dead today who
would have been alive if they have had sufficient live-fire
training. It was right after we closed the live-fire training
in Vieques that we lost five lives at the Ordora Range in
Kuwait.
So this is something that is very serious. I think that we
need to treat it that way. I think all sides have acknowledged
a legitimate problem here. We have established the fact. The
question before us today is what legislation will solve the
problem.
Yesterday Senator Pryor suggested a pilot program. Senator
Akaka has suggested that the Congress enact part of the request
of the Department of Defense. The House Resources Committee
Chairman, Richard Pombo, states that the proposals do not go
far enough to aid all the citizenry and who feel the pinch of
inflexible and ineffective environmental regulations. So where
is the balance? We will examine that balance today.
It is important to point out that this issue has been
carefully examined. We have studied and studied this thing. My
efficient staff is standing by to put up a chart. As you can
see in the chart to my right, there have been at least 12
hearings addressing the problems of encroachment. Those are the
dates of those hearings. I have attended every one of those
hearings.
Hearings addressing encroachment in the past 2 years
1. Senate Armed Services Readiness and Management Support
Subcommittee, 20 March 2001
2. House Government Reform Committee, 09 May 2001
3. House Armed Services Military Readiness Subcommittee, 22 May
2001
4. Senate Armed Services Readiness and Management Support
Subcommittee, 28 February 2002
5. House Armed Services Military Readiness Subcommittee, 08 March
2002
6. House Government Reform Committee, 16 May 2002
7. Senate Environment and Public Works Committee, 09 June 2002
8. House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans 13 June 2002
9. Senate Armed Services Readiness and Management Support
Subcommittee, 06 March 2003
10. House Armed Services Military Readiness Subcommittee, 13 March
2003
11. Senate Armed Services Readiness and Management Support
Subcommittee, 01 April 2003
12. Senate Environment and Public Works Committee, 02 April 2003
We have talked about it and we have done very little. In
fact, last year there were five proposals from the
Administration. The only one that was passed was the watered
down version of the Migratory Bird Act. The other four were
not. The other four, while not exactly as they were before, is
what we will be talking about today.
The Clinton Administration recognized these problems as
well and took action to solve them. The next chart to my right
shows eight actions taken by the Democratic Administration to
solve the varying encroachment problems that we established.
The DOD merely seeks to continue these initiatives. All of
those took place during the Clinton Administration.
There are two types of obstacles that stare us in the face.
The first one is the litigious initiatives by extremist groups
such as the NRDC and the Center for Biological Diversity. These
lawsuits pose a clear and present danger to the training and
readiness to our military because they threaten to prevent even
the sensible initiatives of the Democratic Administration that
were proposed last year.
Then there is the matter of workarounds. That is where you
do not take action but you try to work around it. We are very
good at workarounds. Workarounds are extraordinary methods of
time and costs utilized to approximate achievement of a task in
the face of obstacles. We are at a stage where the Department
of Defense is working around workarounds as depicted on the
next chart. The Department of Defense has testified that these
workarounds now amount to a death by a thousand cuts.
Previous Encroachment Actions
1. Democrat Congress passes Section 107 of the Federal Facilities
Compliance Act 1992 requiring identification of when munitions become
hazardous waste
2. Memorandum of Understanding on Implementation of the Endangered
Species Act 1994
3. EPA Administrator Carol Browner issues Draft Military Munitions
Rule 1995 defining when munitions become hazardous waste
4. President Clinton issues Presidential Determination #95-45 1995
exempting the Air Force's Groom Lake location (Area 51) from solid
waste and hazardous waste laws
5. EPA Administrator Carol Browner finalizes Military Munitions
Rule 1997 defining when munitions become hazardous waste
6. Secretary of Commerce Norman Y. Mineta and Secretary of Interior
Bruce Babbitt 2000 propose amending the Marine Mammal Protection Act's
definition of harassment to comport with the recommendations in the
reports of the National Research Council
7. Fish and Wildlife Service approves use of Integrated Natural
Resource Management 2000 Plans in lieu of designation of critical
habitat for the Coastal California Gnatcatcher in final rule
8. Fish and Wildlife Service envisions use of Integrated Natural
Resource Management 2000 Plans in lieu of designation of critical
habitat for the Arroyo Toad in proposed rule
In conclusion and in the final analysis, we must be mindful
of the purpose for which military reservations were reserved
and accommodate their purpose. This can be done with a mind to
conservation, as the last Administration proved. Let us
implement and codify their suggestions to afford the
flexibility our military needs, while maintaining our high
environmental standards.
We actually have four pieces of legislation. This committee
only has jurisdiction over three. It does not have jurisdiction
over the Marine Mammal Act. That is a very significant one. I
am going to be asking one of our witnesses on the second panel
to say a little bit about that even though that is not within
the jurisdiction of this committee.
We have the Endangered Species Act. We have the Threatened
and Critical Habitat Designations that would prevent the use of
land in various areas according to the Arizona court case.
There is the Superfund and the RCRA threatened with cleaning up
after each training exercise each day. The Clean Air Act is
threatened with restrictions on deployment of weapons systems.
Of course, we will talk a little bit about the Marine
Mammal Protection Act because I think all four pieces of
legislation need to be considered at the same time.
At this time I will turn to the Ranking Minority member,
Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Thank you, Mr. Chairman, for convening
this hearing today. It is important one.
Like many of my colleagues I am a veteran. I have the
greatest respect for those who serve this Nation. I served in
the Naval Reserve for 30 years. I was on active duty in the
Navy in the 1950's. My ship, the McNair, was the first U.S.
military ship to navigate the Suez Canal after the Egyptians
took control of the Canal. I am a member of the Veterans of
Foreign Wars.
Like every Senator and citizen here today I am concerned
about our troops on our military bases in the States and
throughout the world. I want them to have every advantage as
they prepare for and engage in military combat. But in securing
these advantages, I do not intend to place unfair burdens on
civilians nor endanger public health or the environment.
As you know, I believe that we should carefully examine any
proposals to amend or effectively amend the laws of the
jurisdiction of this committee. If we choose to act, this
should be the committee that reports measures in our
jurisdiction of the Senate.
The proposals we have before us today would permanently
alter the implementation of four statutes in our jurisdiction,
each complex on its face. Each is interpreted enormous times by
the courts through lawsuits brought by citizens as well as the
regulated community. Each is implemented through regulations
developed in an open public process. As our distinguished
colleague, who chairs the Armed Services Committee, observed in
a recent hearing in this committee, ``These laws have taken
years to be put in place.'' Even when change is proposed during
a time when the country is at war, it is this committee's
charge to understand the implications of the change in those
laws as well as the need for the change, and to weigh the
consequences on public health and the environment.
Having chaired the hearing on this subject last July and
having listened to each witness, including the generals who
testified that day, I must say I was left with an overwhelming
sense that the case had not been made for such broad sweeping
permanent exemptions of the Department of Defense, its
operations, and mothball facilities, as well as its private
contractors.
It was clear that these proposals extended well beyond the
resolution of training impediments. Although it was clear that
the reasonable minds of the considerable expertise differed on
the interpretation of the language the Department of Defense
put forward, I learned that the proposals might well result in
offsite consequences that would extend well beyond the term of
``training mission'' or perhaps the entire war.
For example, the facilities owned by the Department of
Defense covers 13 sole-source aquifers. There is the
Massachusetts military reservation in Cape Cod. Massachusetts
is one such facility.
There are numerous potential toxic effects that may result
from the contamination that DOD is seeking to exempt from the
hazardous waste laws. Perchlorates used as the primary
ingredient in solid propellant for rockets, missiles, and
munitions have been found in groundwater in numerous locations
where rocket propellants and explosives have been handled.
Perchlorates interfere with the iodized uptake in the thyroid
gland which can affect a fetus in the newborn and result in
changes in behavior, delayed development, and decreased
learning capacity.
After the recent publication in the Wall Street Journal
article entitled, ``Bush Seeks Liability Shield for Perchlorate
Pollution,'' I understand that the Environmental Protection
Agency and the Department discussed the need to tighten up that
proposal.
I look forward to reviewing those provisions, but I
understand that even under these revisions, EPA states, ``and
citizens will lose their authority to address perchlorates when
deposited on an operational range and the EPA's and the State's
authority to address mitigation off-range will be limited.''
Not only does the Department of Defense handle these and
other dangerous substances, but its track record in so doing
has admittedly not been a stellar one. I have reviewed one
source that lists 22 sites where perchlorate contamination is
associated with a Department of Defense owned or operated
facility, including four sites in each of the States of
California, New Mexico, and Texas.
I have a list of the Department of Defense Superfund sites
that is three pages long and lists approximately 130 sites.
Even President Bush in his campaign speech in April 2002 said
that the Federal Government is considered the Nation's worse
polluter. Should we provide legal exemptions to an entity with
such less cleanup?
The Environmental Protection Agency certainly appears to be
reluctant to blame the environmental laws for impediments for
training. Last month, Administrator Whitman testified before
this committee that she knew of no example of environmental law
interfering with training activities. More recently, she wrote
to Secretary Rumsfeld expressing concern that DOD witnesses in
the congressional hearing had created an impression that EPA
has prevented vital military training.
I quote from her March 10th letter: ``When our agencies
began working together on environmental issues in 2002, senior
DOD officials conceded that EPA statutes and regulations were
not presenting a current impediment to training and readiness.
Unfortunately, the DOD witnesses failed to clearly distinguish
between immediate ongoing problems with environmental laws and
hypothetical issues which may or may not materialize leaving, I
believe, an erroneous impression of the situation.
``I understand that our EPA witnesses here today will
endorse the Department's legislative proposals. Yet, the
Administrator's statements clearly question the need especially
on a fast-track timetable for these examples. In fact, it is
not clear that the Department of Defense is in agreement with
the immediacy of the need for these exemptions.
``Since our hearing last July, we have seen no activity on
the part of the Department to secure the waivers available
under current law. In fact, in a memo dated November 2002, a
Defense official discouraged field office attempts to secure
waivers available under the Endangered Species Act out of
concern that some concessions could run counter to the
legislative relief that they are continuing to pursue with
Congress.''
In addition, other than this memo, we have yet to receive
any answer to our inquiries as to why the current Section 7(j)
procedure for waivers under the Endangered Species Act is
inadequate and has not been utilized. This last month Deputy
Secretary of Defense Wolfowitz encouraged employees to identify
areas wherein ``exceptional cases waivers should be sought
under current law.''
This leads me to the conclusion that the more constructive
dialog following this hearing today might be a dialog about how
to implement or perhaps craft the waivers that govern those
exceptional cases rather than a dialog focused upon permanent
and sweeping statutory changes.
Finally, I would like to address some of the statements and
misstatements made about this proposal during the time it has
been pending. First, we have frequently read statements that
the proposals merely codify existing policies and practices
implemented during the previous Administration. If this is
true, I once again must question the need for legislation.
However, contrary to these statements, the proposal is
fundamentally different from the EPA's Military Munitions Rule.
For instance, this proposal would eliminate EPA's ability to
respond to emergency situations by limiting its statutory
authority to respond to imminent and substantial endangerment
to the health and environment under the Resource Conservation
Recovery Act.
EPA's regulation did not eliminate this statutory
authority. EPA's regulations did not alter the Agency's ability
to address constituents of munitions, like perchlorates. But
this proposal does alter that authority.
As for the Department of Endangered Species Act proposal,
unlike the Clinton era proposal, the Department of Defense will
determine what to do about species on its own lands. The
Clinton era proposal was a case-by-case consultation, and the
Department's new proposal is an exemption.
I would also like to point out that in many of the examples
of the Endangered Species Act problems at the training ranges,
such as the examples of the species at the Barry Goldwater Air
Force range in Arizona, there has been no designation of
critical habitat. So, in fact, if training missions at this
range or others were canceled, this apparently was not because
of the critical habitat designation.
Fort Richardson in Alaska is an example often cited as
support for the proposal. Yet a few facts are often missing
from discussion. In previous testimony, Department officials
have stated that the Army would be forced to seek an operating
permit and to perform corrective action or cleanup of Eagle
River Flats. Contrary to the allegations, this lawsuit was
brought by the citizens--not EPA.
Also contrary to the allegations the lawsuit does not seek
to compel a cleanup. A citizens suit under Superfund cannot the
President or EPA to order a cleanup.
We have received testimony that a proposed critical habitat
under the Endangered Species Act would cover 57 percent of the
base at Camp Pendleton in California. But, in fact, the Fish
and Wildlife Service exclude all but 875 acres of Camp
Pendleton's approximately 120,000 acres of training land from
its final critical habitat designations. That is less than 1
percent of the base.
The list of disputes continues, Mr. Chairman. If nothing
else, they highlight the complexity of these issues and our
need to examine them carefully. I am concerned that these
proposals are too broad and may, in fact, enact unintended
harm. In addition, I am concerned that the contamination not
cleaned up or prevented by the military will be left for others
to address. That includes the industry and citizens alike.
Critical habitats not maintained on military lands means
compressed habitat requirements on surrounding lands, much of
which are owned by private citizens.
I stand ready to work with you, Mr. Chairman.
I would ask that a minority staff memorandum be placed in
the record in its entirety.
Senator Inhofe. Without objection.
[The document requested by Senator Jeffords follows:]
minority staff memorandum
To: Senator Jeffords
Subject: DOD Hearing on Wed. April 2nd
Date: April 3, 2003
This Wednesday April 2, 2003 at 9:30 AM in 406 Dirksen Senate
Office Building, the full Committee on Environment and Public Works
will hold a hearing on ``issues related to military encroachment''.
As part of the 2004 Department of Defense Authorization Bill, the
DOD submitted the Range Readiness and Preservation Initiative (RPPI).
The RPPI creates broad statutory exemptions for ``training activities''
of the DOD from five environment and resource laws: the Clean Air Act,
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the
Endangered Species Act, and the Marine Mammal Protection Act. All of
these laws, with the exception of the Marine Mammal Protection Act,
fall under the jurisdiction of the EPW committee.
Because these proposals involve so many aspects of laws that are
individually complex, this memo is an annotated bibliography to the
many materials enclosed.
Enclosed Materials
1. The text of the Range Readiness and Preservation Initiative as
it appears in the 2004 Department of Defense Authorization Bill. This
is the reference text for all materials. [Range Readiness.pdf]
2. An analysis by the Democratic Staff of the House Commerce
Committee on the effects of the RPPI on the laws effected should it
become law. This document provides a concise overview of the RPPI on
existing law. [House Commerce Committee.pdf]
3. An analysis by multiple environmental organizations on the
effects of the RPPI on the laws effected and on the operation of
existing programs. [Environmental Analyis of RPPI.doc]
4. A focused analysis on the effects of the RPPI on the Clean Air
Act. [Clean Air Act Background.doc]
5. A report by the GAO that concludes the DOD has not provided any
evidence that environmental laws have encroached on the military's
ability to conduct training. [GAO Encroachment Report.pdf]
6. Internal comments submitted by EPA to OMB on, among other
provisions, its opinion of the RPPI. In its comments, EPA generally
opposes the RPPI because it is too broad and because it would pre-empt
EPA from enforcing the laws under its jurisdiction. [EPA Comments to
OMB.pdf]
7. A letter from the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO) opposing the CERCLA and RCRA
provisions of the RPPI. [ASTSWMO letter.pdf]
8. A letter from the State and Territorial Air Pollution Program
Administrators (STAPPA) opposing the Clean Air provisions of the RPPI.
[STAPPA letter.doc]
9. A bipartisan resolution passed by the National Association of
Attorneys General opposing the RPPI at their National Conference in
March of 2003. [NAGG.doc]
10. A memo sent by Deputy Secretary of Defense Paul Wolfowitz
requesting that all branches of the military submit requests to use the
existing statutory exemptions in nine environment and resource laws.
This request contradicts DOD's conclusion that the existing exemptions
in law do not work and call into question the DOD's need for the RPPI.
[Wolfowitz--memo.pdf]
11. Document Nos. 11, 12, 13, 14, and 15 all concern statements the
Department of Defense has made in relation to the Endangered Species
Act. #11 presents the reality behind anecdotal stories presented by the
DOD in requesting existing statutory exemptions. [Anecdotes.doc]
12. Document No. 12 presents the reality behind DOD's statements
about the legal framework of the ESA. [Misstatement.doc]
13. Document No. 13 provides a table of statements by Fish and
Wildlife Service showing that INRMP plans under the SIKES Act are
insufficient to protect endangered species. [FWS Review.doc]
14. Document No. 14 shows that FWS has repeatedly granted requests
under existing law to exclude land from critical habitat designation.
[FWS DOD requests.doc]
15. Document No. 15 outlines the many success stories of FWS
working with DOD to protect endangered species. [Success stories.doc]
16. A briefing document on the many false claims DOD has made on
the effects of environmental laws on training at Camp Richardson,
Alaska. [Camp Richardson.wpd]
17. A briefing document on EPA's ``military munitions rule''. The
Administration has claimed that the RPPI would simply codify the
existing rule. This document specifies why that is not true and
outlines specific differences between the rule and the RPPI. [DOD
munitions.wpd]
18. Testimony by Dan Miller, Assistant Attorney General of
Colorado, before the House Armed Services Committee on the Attorneys'
General specific concerns on the RPPI's effect on the State's authority
under CERCLA, RCRA, and the Clean Air Act. [NAAG--2.doc]
19. A series of editorials from newspapers across the country.
While there have been editorials written in many more papers, this
represents a sample cross-section of the country. Included are
editorials from the L.A. Times, The Boston Globe, The Milwaukee Journal
Sentinel, The Clarion-Ledger of Jackson Mississippi, The Fayetteville
Observer of Fayetteville, NC (home community to Fort Bragg), and the
Tucson Citizen. If you wish to see a comprehensive list of editorials
please visit the committee's web site: www.epw.senate.gov and look for
the hearings links for April 2, 2003--[LA--Times.doc]; [Boston.doc];
[Milwaukee.doc]; [Jackson (MS) Clarion-Ledger Tucson Citizen.htm];
[Fayetteville.htm].
Senator Inhofe. Thank you, Senator Jeffords.
Even though it is the practice not to have opening
statements other than the chairman and the ranking member, I
know there is a lot of interest in this. If any of you have
opening statements, I would ask you to confine your opening
statements to 3 minutes in the order in which you arrived,
which was Senators Allard, Thomas, Wyden, Boxer, Lieberman, and
Crapo.
Senator Allard, did you have a short opening statement?
OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE
STATE OF COLORADO
Senator Allard. I do have a short one, Mr. Chairman.
First of all, I want to tell you how thankful I am that you
are moving forward with this particular issue because I believe
it is a problem. The State of Colorado finds itself in the
middle of many of these issues. In fact, we have a couple of
individuals here today from Colorado that will be testifying.
Unfortunately, I will not be able to stay for this hearing
because I will chairing the subcommittee which will be looking
at the environmental management's cleanup of Rocky Flats in
Colorado, as well as what is happening in this committee. As
you know, and members of this committee know, it is not unusual
that we run into this kinds of conflicts.
Again, this is an extremely important hearing. I want to
personally welcome those two individuals from Colorado that
will be testifying: Ingrid Lindemann, who is a Council Member
from Aurora, will be testifying.
I want to welcome also a very good friend of mine and
somebody who has worked for me, Douglas Benevento. I have known
Doug for over a decade. As always, it is good to see a Cabinet
member from Colorado Governor Bill Owen's administration here
today. He is head of the Department of Health in Colorado. I
believe he, as well as his department, can be very helpful in
finding some common sense solutions that this committee faces
regarding encroachment on military training sites.
The issue will continue to be a problem. I agree with the
State of Colorado that knee jerk reactions happen on both sides
when these sensitive subjects are broached. However, I am
certain that we can find a solution to the military's problem
that will be straightforward and balanced. In addition to that,
I think we can apply good science.
My overall goal is to give the military the most
flexibility and training that they need to successfully
continue their mission. We understand that, I think, in today's
environment. I believe that my home State's approach is a good
first step in achieving this. I find the correct solution that
the Congress needs is the State's input. I thank Mr. Benevento
for his testimony.
Again, Mr. Chairman, thank you for holding this hearing.
Senator Inhofe. Thank you, Senator Allard.
Senator Thomas?
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Very briefly, Mr. Chairman. I thank you for
having this meeting. I think we should have been dealing with
this before. There is no question about it. But now it is
obvious that we need to be doing it. I am glad that EPW is
considering doing something.
Senator Inhofe. I would interrupt for just a moment. In my
opening statement I mentioned that we have had 12 hearings on
this but nothing has happened.
Senator Thomas. That is my point. We are having another
hearing, and hopefully something will happen this time. We have
to improve the ability for the military needs, of course.
You mentioned that EPW has been working on this, but the
fact is lawsuits are what bring this up. If it weren't for
lawsuits, we probably would not have all the problems that we
do have. The other problem, of course, which I am seeking to
deal with that also applies here is that we need to do a little
better job of selecting and getting these things in the
Endangered Species Act. I don't think we have some in there
that really should not be there.
But we have to deal with the encroachment. Certainly the
exemptions are temporary and we need to find a way to work this
out on a long-term basis. I just cannot believe that we are
going to inhibit military training through the Endangered
Species Act.
Thank you, sir.
[The prepared statement of Senator Thomas follows:]
Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
Mr. Chairman, I am pleased that the committee is holding today's
hearing regarding the encroachment of environmental laws and their
impacts on military bases and training facilities.
While I think it's timely for the committee to address this issue,
we should not lose sight of the needs of local landowners, public land
managers, communities, and State governments who continue to express
frustration over the implementation of the Endangered Species Act
(ESA). It is my hope that this committee will hold a hearing later this
year on proposals, such as the bill I have introduced (S. 369), which
seeks to instill some common sense in the ESA process.
With regards to President Bush's proposed ``Readiness and Range
Preservation Initiative,'' I believe it's important to point out that
the Administration is not trying to take away environmental
protections. Rather, what the Administration is trying to do is take a
pro-active step to codify current agency practices. This approach
relies upon a host of past Administration practices and balances
environmental protections with our military's readiness needs.
As the General Accounting Office noted in a 2002 report, ``Over
time, the impact of encroachment on training ranges has gradually
increased. While the effect varies by service and individual
installation, in general encroachment has limited the extent to which
training ranges are available or the types of training that can be
conducted. This limits units' ability to train as they would expect to
fight and/or requires units to work around the problem.''
Now more than ever, the Department of Defense needs to adequately
train our soldiers for combat. Without multiple opportunities for
realistic ``live weapons training'' our soldiers will be put in harms
way. Clearly, changes are needed because environmental groups have
filed lawsuits which could potentially hinder or even ban military
training.
Chairman Inhofe, I stand committed to working with you on this
issue and look forward to hearing from today's panelists.
Senator Inhofe. Thank you, Senator Thomas.
Senator Wyden?
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
STATE OF OREGON
Senator Wyden. Thank you. Mr. Chairman, for two decades I
have enjoyed working with you. I think it is important to shed
light on this issue.
But, colleagues, I cannot support forcing the Congress to
make a false choice between the readiness of our troops for
combat overseas and the health and safety of our citizens here
at home. Like Chairman Inhofe, I fully support our troops in
combat. That includes the critical training that is needed so
that they can be ready for battle.
But the record is absolutely bereft of concrete examples
that indicate that exemptions from environmental laws have
anything to do with training and readiness. I think it is
particularly important, colleagues, that we explore the fact
that the major environmental laws already include exemptions
for military readiness.
Apparently none of these exemptions have been invoked.
There has never been a claim that an exemption was needed under
the Endangered Species Act. There has been no exemption under
the Clean Air Act. There has not been a claim under the
Superfund or RCRA. These laws have been on the books through
Vietnam, in Iraq during Desert Storm, in Bosnia, and in
Afghanistan.
I am very troubled about the idea that now we are talking
about playing Russian roulette with the health and safety of
U.S. citizens here at home when it does not seem to be that
there has been any significant exercise of laws that are on the
books now to protect our troops to ensure military readiness
and to guarantee national security.
Mr. Chairman, I think you are performing a great service
that we can examine this issue and get into some of the
specifics. I always enjoy working with you. I am going to
continue to do that. I thank you.
Senator Inhofe. Thank you, Senator Wyden.
Senator Boxer?
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Thank you, Mr. Chairman.
The military protects us from harm all over the world for
which we are eternally gratefully. How sad it would be if our
military hurt the health and safety of our citizens here at
home by ignoring environmental laws that apply to every other
entity in the private and public sectors. How sad it would be
if the military ignores polluter pays and leaves our hometowns
to pick up the cost of pollution cleanup. This doesn't even
seem to me to be consistent with our military who really are,
in so many ways, role models for our youngsters and the rest.
I want to give you one quick example in my remaining two-
and-a-half minutes about one of my communities which finds
itself with a great deal of perchlorate in its water.
Perchlorate is a highly toxic explosive salt that was widely
used in the 1940's through the 1960's. It is still used in
lesser amounts as an oxidizer for solid rocket fuel and
ammunition.
Even at low concentrations, perchlorate poses a serious
threat to human health. The greatest risks are to pregnant
women, babies, and children. More than 20 million Americans
drink water contaminated with perchlorate. At least 100 sites
in 19 States report perchlorate contamination.
In California alone, perchlorate has been found to
contaminant more than 400 water sources in 20 California
counties. It is estimated that almost 10 million Californians
are currently drinking water contaminated with perchlorate.
The U.S. EPA believes that perchlorate may be present
wherever rocket or rocket fuel was made in at least 162 sites
in 36 States, most of which was conducted to defense-related
activities.
The language in the proposal that we have seen would exempt
DOD and its contractors from responsibility for cleaning up and
even preventing the spread of perchlorate contamination.
I have a letter from the city of Rialto. I ask unanimous
consent to submit it.
Senator Inhofe. Without objection.
[The referenced letter follows:]
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Senator Boxer. I would just like to read a couple of
paragraphs in the letter. ``Our water and our land are two of
our strongest assets. The pollution that has occurred was not
done by our residents, but rather done by contractors in the
DOD. Our residents should not and cannot be held responsible
for the pollution that was done in support of previous war
efforts.
``If our community does not receive some assistance or gain
the financial means to support the required cleanup, we will
have no choice but to restrict pumping, implement drought
conservation plans, and stop all future development and job
creation.''
Mr. Chairman, it is unacceptable that these cities would be
abandoned to financial ruin. In closing, I would just say as
Senator Wyden has suggested, we have looked at this issue many
times. The GAO testified before the House in 2002 that the
military reports a high degree of combat readiness. They saw
absolutely no problem with obeying environmental laws.
I hope that we will fight this. I think this is a big
setback for our military and our country.
Senator Inhofe. Thank you, Senator Boxer.
Senator Lieberman?
OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you, Mr. Chairman. As a member of
both the Senate Armed Services Committee and this committee, I
have studied this matter carefully and concluded that the
exemptions from the environmental laws that the Department of
Defense seeks are unjustified and the harm that they would do
to our natural resources. In fact, public safety is
considerable.
I know that some argue and believe that we must choose
between a strong defense and a clean environment. I do not. We
can protect our environment and protect our security at the
same time. In other words, we can defend the red, white, and
blue and be green at the same time. In fact, we must do both.
I understand, obviously, and appreciate the heroic work
that our men and women in uniform are doing overseas today and
the extensive training they must do here at home to get battle
ready. Nothing should interfere with that preparedness, or
compromise their training. But I conclude that our
environmental laws do neither, and in suggesting otherwise I
worry that there are some who are trying to dress up or push
for major environmental rollbacks in what might be called a
national security camouflage.
Ideology and convenience might support the believe that the
Nation's security and the health of our environment are
naturally at odds. But the evidence that I have seen does not.
In fact, Christine Whitman, the EPA Administrator, had her
budget hearing before this committee and asserted that in her
judgment there is not a single training mission in this country
being adversely affected by environmental protection.
If any problem might arise, the current laws do have the
flexibility required to allow for the training our soldiers
need. Our environmental laws already have many exemptions that
the Pentagon has authorized to evoke. In fact, Under Secretary
of Defense Paul Wolfowitz recently distributed a memorandum
asking the services to seek to invoke those exemptions.
Mr. Chairman, I ask that a copy of that memo be placed in
the record.
Senator Inhofe. Without objection.
[A copy of the document follows:]
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Senator Lieberman. Senator Boxer has talked about a
specific example in California so I will not talk about that in
detail. But it is real.
I will make one final point. The changes being contemplated
here are substantial. They are going to have far-reaching
effects on a complex combination of environmental and public
health laws. Therefore, I think they demand thorough scrutiny
in the congressional committee that is most responsible for
such consideration, which is this one.
I think it would be inappropriate for my other committee,
the Armed Services Committee, to push these changes through
without the consent with this committee.
I thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Lieberman.
Senator Crapo?
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. Thank you, Mr. Chairman. I have
responsibilities on the floor where I am now late. So I am
going to submit my statement for the record.
I just wanted to point out that I believe that it is
imperative for us to evaluate these critical issues. Many of
the statements already made have made it clear that what we are
seeking to achieve here is the proper balance between the
protection of our national security interests and the
protection of our environment.
I am one of those who believes that there is not an
immovable or unjustifiable conflict there, and that we can find
that balance. I hope that is what the testimony here today will
help us do. For the witnesses that I am not going to be able to
hear, I want you to know that I have already read most of your
testimony and will continue to evaluate this very carefully.
[The prepared statement of Senator Crapo follows:]
Statement of Hon. Michael D. Crapo, U.S. Senator from the State of
Idaho
Mr. Chairman, thank you for holding this hearing. I appreciate your
leadership on this issue.
Like much of what is considered in this committee, what we are
discussing today touches on multiple issues of importance to the
Congress and the American people.
The Readiness and Range Preservation Initiative provisions proposed
for the Defense Authorization act for Fiscal Year 2004 are about
national defense, the preparedness of our troops, and protection of the
environment.
The impact of environmental laws on military preparedness is a
serious concern. We must ensure that our soldiers, airmen, sailors, and
Marines are able to train as they fight. We must ensure that our
military personnel are ready to face any enemy, in any condition.
However, I do not agree that protection of our environment must be
at odds with military readiness. While the Department of Defense has a
unique mission; it has a strong record of environmental stewardship. I
have confidence that as we learn more about the environment, the
military will continue to make great strides in protecting it.
One of the criticisms I often hear about our environmental laws is
that they create a culture of litigation. They do not meet their
intended goal and that, too often, the court is making decisions about
the environment rather than environmental professionals. It is my
understanding that it is this fear that has prompted the Administration
to make this proposal.
Some have suggested that the provisions we are considering today
are a sweeping exemption from environmental laws. Others would argue
that it is a codification of existing practices, narrowly prescribed to
address unique military preparedness circumstances. I hope that this
hearing will give us a better understanding of what the Administration
is proposing and why it is necessary.
I know that the distinguished Senator from Virginia a strong
advocate for the environment and our nation's military has held a
number of hearings in the Senate Armed Services Committee on this
subject both this year and last. In addition, this committee held a
hearing on similar provisions that were proposed as part of the Fiscal
Year 2003 Defense Authorization bill.
Clearly, we are all united in support of our armed forces. We want
them to have the best training in the world. We also want to protect
the environment. As I said, I do not think these are mutually
exclusive.
Senator Inhofe. Thank you, Senator Crapo.
Senator Reid?
OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE
STATE OF NEVADA
Senator Reid. Thank you, Mr. Chairman.
My colleague from Nevada, John Ensign, now holds the post
that you held previously on the Armed Services Committee, the
Subcommittee on Readiness and the Armed Services Committee. He
has chaired two hearings very ably on the subject of this
matter here today. My colleague, John Warner, who is also one
of the senior members of this committee, serves as chair of the
Armed Services Committee.
I think that committee has done good work, but this is the
right venue, in my opinion, for consideration of the Defense
Department's proposal. I do not see how anyone could have any
concern about that with your background, Mr. Chairman, in the
military and all that you have done for the military.
This legislation, this object that we are talking about
today, proposes far-reaching and permanent exemptions to four
laws directly within this committee's jurisdiction. I have been
on this committee since I have been in the Senate. I have been
chair on a couple of different occasions and served as chair of
various subcommittees.
I have asked the Chairman and Senator Warner to ensure that
this committee consider and mark up any proposal to amend these
laws. I think you should work with us on that. The expertise
and the jurisdiction over this matter resides here and not in
the Armed Services Committee.
The central question of this hearing is whether our
environmental laws hinder our ability to train our troops to
prepare and execute a war. Always important, this question
takes on special meaning with our young men and women now
engaged in war.
I hope no one in this room stands for impeding the ability
to ensure that they have our troops receive the best training
possible. Nevada has always been on the forefront of providing
for the Nation's defense. We have large military installations
there. We have training exercises that go on every day in
Nevada.
We watched the Nevada Test Site as a boy. Bleachers were
erected so that people could watch the explosions. We did not
think a lot about the health and environmental consequences of
testing at the time. It was a spectacle to watch. Those
bleachers are still there. You can go sit on them if you care
to and look at the view those people had many decades ago.
Today at that site we are processing expanding of the site. It
will become the Nation's premier counter terrorism training
center. I support these efforts.
Proponents of the plan to exempt the military for several
environmental laws have few concrete examples showing that
those laws impede military readiness or that a blanket
exclusion would improve readiness. In fact, those laws already
provide for a case-by-case exclusion when national security
dictates.
There is one broad exclusion that allows for the suspension
of any administrative action--environmental or otherwise--in
the name of national defense. There are many good reasons to
favor case-by-case exclusions over the broad exemptions the
Department asks. I want to talk about just one.
We train our top pilots at the Naval Air Station just
outside the small rural community of Fallon. In the course of
just a few years, 16 children have been diagnosed with leukemia
in Fallon. A number of these children have died. The Centers
for Disease Control, the agency for toxic substance disease
registry, and the State of Nevada have been searching for
environmental clues to the leukemia problem in Fallon. At a
hearing that was held there 2 years ago to the day, I heard the
parents of those children and others ask for answers to the
question of why their kids were sick.
One area of concern was a Naval Air Station where the leaks
of JP-8 fuel from the pipeline. Could these leaks have had an
impact? What is the impact of air emissions from over flights?
We do not conclusively know the answers to these questions.
What I do know is that the commanders there can show that they
have followed the environmental laws. There have been no
exemptions. I know that JP-8 or some other chemical leaked at
the site. Federal and State environmental officials would have
the authority to clean up it.
I know the Clean Air Act applies to the base and the people
in Fallon enjoy the same clean air protection that people in
Reno, Sparks, and the rest of Nation enjoy, as it should be.
So I would hope that the Department would look at what has
gone on in Fallon that is good. The people have Fallon have the
assurance that these protections have always been there.
Senator Inhofe. Thank you, Senator Reid.
Our first panel consists of three people who probably
really know this subject. Two of those people appeared before
the Senate Armed Services Committee on Readiness yesterday. We
have Benedict Cohen, Deputy General Counsel for Environment and
Installations for the Department of Defense.
We have J.P. Suarez, Assistant Administrator for
Enforcement and Compliance Assurance, of the Environmental
Protection Agency. Third is Craig Manson, Assistant Secretary
for Fish, Wildlife and Parks, Department of the Interior.
I welcome all of you. We would ask you to submit your
entire statement. It will be in the record. Please keep your
remarks down to about five or 6 minutes, if you would, please.
Mr. Cohen?
STATEMENT OF HON. BENEDICT S. COHEN, DEPUTY GENERAL COUNSEL FOR
ENVIRONMENT AND INSTALLATIONS, DEPARTMENT OF DEFENSE
Mr. Cohen. My name is Ben Cohen. I am Deputy General
Counsel for Environment and Installations of the Department of
the Defense. It is a privilege to be here to discuss the
Department's readiness and range preservation initiative.
I would like to try at the outset to define what is and is
not at issue in our legislative package. Press accounts
suggests that the Department of Defense is on the offensive,
seeking sweeping exemptions from the environmental laws. It has
been suggested that we seek such exemptions for our closed
ranges, our contractors, our non-readiness activities, and our
existing cleanup obligations concerning chemicals like
perchlorate.
These interpretations do not reflect the Department of
Defense's actual intent. We have already revised our proposal
to clarify that it has no effect on closed ranges. Working with
the Environmental Protection Agency, we have developed further
language clarifying that it has no effect on our contractors.
We stand ready to work with this committee or anyone else to
further clarify the sole focus of our proposal: the Defense
Department's testing, training, and military operations.
In reality, our proposals are strictly defensive in nature,
designed to shore up existing State and Federal regulatory
policies that are facing courtroom challenges. It is private
sector litigants who seek a sweeping change in long-standing
environmental policy. They believe that military readiness
activities have been drastically under-regulated and they seek
through litigation to overturn existing State and Federal
regulatory policy, and to impose new and unprecedented burdens
on our core military readiness activities.
That, Mr. Chairman, is what is actually at issue in this
debate. That regulatory future has arrived for the Navy through
private litigation under the Marine Mammal Protection Act.
Despite a volatile international situation, and a serious and
growing submarine threat to the fleet, the Navy's Antisubmarine
Warfare Program is being crippled through litigation.
Last year, in the test LFA case a court cast aside the
expert scientific judgment of the regulatory agency that LFA
would have negligible impacts on marine mammals. It cast aside
as well that Agency's subtle interpretations of its own
statute, interpretations validated by the National Academy of
Sciences. It cast aside a Navy regulatory compliance program 6
years in the making based on $10 million worth of cutting edge
science.
That future is arriving very rapidly under the Endangered
Species Act. A wave of critical habitat litigation is rapidly
developing. In the year 2000, critical habitat had been
designated for 120 species, just over 10 percent of all those
listed. Recently, a single Court order remanded the Interior
Department's critical habitat decision for 245 species in
Hawaii alone.
One target of this wave of litigation is the Clinton
Administration policy allowing our natural resource management
plans to serve in lieu of critical habitat. If successful, this
challenge would fundamentally alter the way the Interior
Department regulates our operational ranges and the way we test
and train there.
In April, the Interior Department is required by Court
order to revisit the Pendleton and Miramar non-designation
decisions that have exempted from critical habitat those two
critical West Coast military installations. The Interior
Department has testified repeatedly that it believes that
developing case law in this area has jeopardized their ability
to continue to maintain that exemption.
This regulatory future is also plainly visible in ligation
seeking to reverse long-standing State and Federal regulatory
policies under the Superfund and solid waste management
statutes and to compel unprecedented and far more intrusive
regulation of our test and training activities.
The Department of Defense also faces a similar threat to
readiness under the Clean Air Act. Although our Clean Air Act
proposal is not been driven by litigation, it is similar to the
rest of our package in that it would give States and EPA some
additional flexibility to pursue their existing preference to
accommodate military readiness activities wherever possible.
Through luck and hard work, State regulators in the past
have largely been able to accommodate the basing of new weapons
systems or the redeployment of existing systems. Our proposal
would make it easier for them to do so. The alternative could
be significant delay in basing critical new weapons systems.
The proposals we offer have minor environmental impacts,
but significant benefits to readiness. They largely codify
existing bipartisan policies that have served both readiness
and the environment very well.
I would be pleased to take your questions.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Mr. Cohen.
Mr. Suarez?
STATEMENT OF HON. J.P. SUAREZ, ASSISTANT ADMINISTRATOR FOR
ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION
AGENCY
Mr. Suarez. Thank you, Mr. Chairman, and members of the
committee. Good morning. I appreciate the opportunity to speak
with you today on behalf of the U.S. Environmental Protection
Agency's position on the proposed National Defense
Authorization Act for fiscal year 2004.
We believe that the Administration's proposal appropriately
addresses two equally compelling national priorities--military
readiness and the protection of human health and the
environment. These priorities can both be achieved at the same
time. We appreciate the Defense Department's willingness to
work with us to craft the proposals before you today.
As you know, the Administration's proposal would make
changes to certain pollution control laws that EPA administers
and to laws affecting wildlife protection and habitat. I will
limit my remarks today to those laws under EPA's jurisdiction.
EPA and the Department of Defense share an important
mission, especially obviously in the wake of 9/11--the
protection of both our national and environmental security. One
holds little value without the other. We believe neither
mission should be compromised at the other's expense.
Toward that end, EPA and DOD have for years worked
cooperatively toward achieving these goals with tangible
benefits to the American people. The bill before this committee
is the result of just such collaboration. I would like to
highlight for the committee three of the proposed statutory
changes that have been developed to facilitate our twin
missions vital to the health and security of our Nation.
First, EPA recognizes that military readiness depends on
DOD's ability to move assets and materiel around the Nation,
perhaps on short notice. Such large-scale movements of people
and machines may have impacts on State Implementation Plans, or
SIPs, for air quality. Accordingly, EPA and DOD developed
proposed changes to the Clean Air Act to allow the Armed Forces
to engage in such activities while working toward ensuring that
its actions are consistent with the plan's air quality
standards.
Under the Administration's proposal, the military would
still be obligated to quantify and report its impacts on air
quality prior to initiating the readiness activity, would be
given 3 years to comply, but then must come into compliance
with the State's implementation plan.
Second, the Administration's bill proposes two changes to
the Resource Conservation and Recovery Act, or RCRA, the
Nation's solid and hazardous waste law. The bill contains
language that would change the statutory definitions of solid
waste under RCRA to provide flexibility for DOD regarding the
firing of munitions on operational ranges, while clarifying
that the definitional changes are not applicable once the range
ceases to be operational.
This change is compatible with existing EPA policy and the
Military Munitions Rule that has defined EPA's oversight of
fired munitions at operational ranges since 1997. The bill
specifically maintains the ability of EPA, the States, and
citizens to take actions against the Government in the event
that munitions or their constituents migrate off-range and may
pose an imminent and substantial endangerment to human health
or the environment.
The Agencies also have worked together to craft a clear
common-sense definition of ``range.'' Under the revised
definitions of ``solid waste'' and ``range,'' the military will
have the statutory assurance that EPA will not intervene in the
firing of or training with munitions, while the public may rest
secure in the knowledge that the EPA, States, and citizens will
have the authority to take actions against the Department if
munitions pose a threat off-range or after a range is closed.
Third, the Administration's bill proposes analogous changes
to the Comprehensive Environmental Response, Compensation, and
Liability Act, or CERCLA, also known as the Nation's Superfund
law. It would exempt from the definition of ``release'' under
CERCLA, explosives and munitions deposited during normal use
while on an operational range.
It is important to note that EPA would retain authority to
take action to abate an imminent and substantial endangerment
to public health and the environment due to deposit or presence
of explosives and munitions on an operational range while still
affording the military the flexibility they need in handling
the munitions in these ranges.
Indeed, as Mr. Cohen just noted, this Administration has
recently developed language clarifying that the proposed
changes to the solid waste and Superfund laws apply only to
operational ranges under the jurisdiction and control of
military services and not to contractors and other third
parties.
In conclusion, we believe that the Administration's
proposed bill accommodates the concerns of the military, the
EPA, and the public. I want to assure this committee that both
Administrator Whitman and I support this bill and believe that
the bill's provisions will ensure that America's armed forces
are able to train, to carry out their national security
mission, to train the way they fight, and that the Agency is
able to carry out its mission of protecting human health and
the environment.
That concludes my prepared remarks. I would be happy to
answer any questions.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Mr. Suarez.
Secretary Manson?
STATEMENT OF HON. H. CRAIG MANSON, ASSISTANT SECRETARY FOR
FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Manson. Good morning, Mr. Chairman. I am Craig Manson,
the Assistant Secretary for Fish, Wildlife and Parks in the
Department of the Interior. I have responsibility for the
United States Fish and Wildlife Service and the National Parks
Service. I appreciate the opportunity to testify this morning
on this important subject.
Secretary Norton understands the unique nature of the
duties and missions of the military and the need to train
effectively for military activities. On a personal note, I have
seen these issues from both perspectives, having served for
more than 30 years in the active duty Air Force, the Air Force
Reserve, and the Air National Guard. Many times I have been
called upon to advise commanders about compliance with
environmental laws, including the Endangered Species Act.
From that experience and my experience as a State regulator
in California, I can say that the Department of Defense has
been an exemplary steward of the Nation's natural resources.
That opinion is shared by Secretary Norton and throughout the
Department of the Interior.
Interior's bureaus have actively and successfully sought to
work with the Department of Defense to meet the requirements of
various natural resources laws without impacting the military's
ability to train. My testimony this morning focuses on the
proposal concerning the substitution of integrated natural
resource management plans, or INRMPs, on military installations
for critical habitat under the Endangered Species Act.
At least 300 listed species occur on the Department of
Defense managed lands and access limitations due to increased
security, the necessity for buffer zones, and good military
stewardship, has resulted in some of the finest remaining
habitat occurring on military lands.
The Endangered Species Act requires the Fish and Wildlife
Service to designate critical habitat for listed species if it
is prudent and determinable. Critical habitat designations on
Department of Defense lands can impact the ability of the
military to prepare and train by imposing additional
requirements for consultation under Section 7 of the ESA.
On the other hand, as the then-Director of the U.S. Fish
and Wildlife Service, testified before this committee on May
27, 1999, ``critical habitat provides little additional
protection to most listed species, while it consumes
significant amounts of scare conservation resources.''
The Director suggested that instead of the current process
for designating critical habitat, and open collaborative
environment at the appropriate time would be a more efficient
way to conserve and recover species. Integrated Natural
Resources Management Plans, known as INRMPs and required under
the Sikes Act Improvement Act of 1997 serve as an effective
vehicle through which the Department of Defense can
comprehensive plan for conservation of fish and wildlife
species. This planning can address important needs for
endangered and other species of fish and wildlife, including
the protection of habitat.
The statute requires collaborative engagement and mutual
agreement of the Fish and Wildlife Service, the military
installation commanders, and the relevant State natural
resources agency. The Department of the Interior's policy is to
exclude military facilities from critical habitat designations
if the facility has an approved INRMP which addresses the
species in question. We support the codification of this policy
and the range, readiness and preservative initiation.
The INRMP process appears to provide more true conservation
benefits to species because it provides for real management
action. For example, critical habitat proposed for the purple
amole, a plant in California, included significant portions of
Camp Roberts and Fort Hunter Liggett. We excluded Camp Roberts
from the final designation because it had completed an INRMP
which addressed the conservation of this plant. Working with
the Department of Defense, we were also able to remove Fort
Hunter Liggett, although the INRMP to address the protection of
the plant was not yet approved.
The benefits of these military readiness activities to the
national defense exceeded the benefit of including the area and
the designation, and we, therefore, excluded the property.
However, a recent court case in the District of Arizona has
clouded part of our policy to exclude military lands from
critical habitat based on an INRMP.
The policy is based, in part, on a decision that military
lands within approved INRMP and other types of lands with
approved management policies do not require special management
consideration because they already have adequate management and
thus, by definition will not be considered critical habitat.
The U.S. District Court in Arizona has ruled that this
interpretation is wrong and that, in fact, lands require
special management and necessitates their inclusion and not
exclusion from critical habitat.
In closing, Mr. Chairman, I believe that the Interior
Department and the Defense Department have acted cooperatively
to implement natural resources laws passed by Congress, and
will continue to explore with our DOD colleagues creative
solutions to balance conservation mandates with military
readiness.
That concludes my testimony. I would be glad to answer any
questions.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Mr. Secretary.
I would ask others to adhere to the 5-minute rule on
questions. We do have another panel coming up and we do not
have a lot of time.
Let me start off, Mr. Cohen, if I could. You are the expert
in this area. As was the case yesterday--and I appreciate your
being a witness yesterday at our rather lengthy hearing--it
kept coming up about the national security exemption. I would
like you to walk us through the process of getting a national
security exemption. Who does it? What time period does it
extend?
Mr. Cohen. Yes, sir. Thank you very much. I would like to
focus it, if I could, on the statutes that the Department is
proposing to amend. First, the Marine Mammal Protection Act
does not have any national security exemption.
The Clean Air Act, RCRA, and CERCLA all possess national
security exemptions. The RCRA and CERCLA exemptions exist by
virtue of Presidential action--the President can act under RCRA
or CERCLA in the interest of national security or national
defense to exempt on a site-by-site basis, specific DOD
facilities--again in the interest of national security.
Under the Clean Air Act, in addition to that site specific
mandate, he can exempt categories of equipment. The exemptions
under all three Acts, I believe, are renewable 1-year
exemptions.
An example of how that is used, actually, is the annual
exemption that the President has given for the last several
years to a classified site to prevent the disclosure of
classified information under RCRA. It involves a fairly lengthy
administrative process whereby the military service and the
department involved reviews the exemption up to the service
Secretary, then to the Secretary's office at DOD, and then to
the White House where it is further reviewed and issued.
Senator Inhofe. That is very helpful. So it has to be done
by the President and it is good for 1 year.
Mr. Cohen. And it is site specific, sir.
Senator Inhofe. And site specific.
I would like to mention, and I am sure you would agree with
this, that administrative actions is the other thing they are
talking about, the tool that can be used. However, in using
this tool it happens after the problem is already there. It
says, ``The Secretary shall submit a written notification of
action and each significant adverse effect to the head of the
executive agency, taking or proposing to take, administrative
action. At the same time the Secretary shall transmit a copy.''
It goes on and on. It is quite a lengthy process. It comes
after the fact. That is the fact I would like to get out.
Mr. Cohen. Yes, sir. Also on that one, 10 U.S.C 20-14 is
often cited as the sweeping across cutting ability to get
exemptions from anything. I should mention that not does it
have to take place at the highest level of every agency, but it
would afford us no relief at all in any of the five statutes
that we are seeking to amend. In each of those five statutes,
it is not the agency's interpretation or action that concerns
or concerns us, it is ligation against which 20-14 provides us
no defense at all.
Senator Inhofe. Exactly. Very good. Thank you, Mr. Cohen.
Mr. Suarez, it has been referred to several years of
statements made by the Administrator. I know what your feelings
are. I read from your testimony yesterday that the
Administration's bill appropriately takes account of the
interest of the American people in military readiness and
environmental protection.
What would be your interpretation? What is the position of
the Administrator, as you understand her position?
Mr. Suarez. Mr. Chairman, I can tell this committee that
Governor Whitman fully supports this bill. She believes that
having worked with DOD, we have struck an appropriate balance
that allows the military the flexibility that they need while
at the same time preserving sufficient authorities for EPA to
take action to protect public health and the environment.
Senator Inhofe. And I think probably we were saying that
those areas that are not within the jurisdiction of the EPA,
she would not have been referring to those areas because that
is not within her jurisdiction. Here I refer to the Marine
Mammal Protection Act and the Endangered Species Act.
Mr. Suarez. That is exactly right, Mr. Chairman.
Senator Inhofe. I am concerned about the environment. My
wife and I have 19 kids and grandkids. We are very much
concerned. I would just like to know according to the EPA will
human health and the environment be fully protected under these
legislative proposals?
Mr. Suarez. Mr. Chairman, we believe that we retain
adequate authority under these proposals to protect human
health and the environment. I note that we continue to retain
authority under CERCLA to address imminent and substantial
endangerments under the Safe Drinking Water Act. There is no
suggestion that any authority under the Safe Drinking Water Act
is to be changed under these proposals. Off an operational
range we continue to have authority. We are comfortable with
these proposals, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Suarez.
Secretary Manson, as a decorated National Guard Reservist
and one who is familiar with all aspects of this, my colleague,
Senator Bond, refers to it as the Subcommittee on Fish, Hunting
and Drinking. He has talked about the critical habitat
designations.
I think it would be helpful for us for you to share with us
what the Fish and Wildlife Service's attitudes are toward the
critical habitat designations?
Mr. Manson. The Fish and Wildlife Service has long taken
the position that critical habitat designations add very little
conservation benefit for species. That was the position taken
in the previous Administration and adopted in our
Administration as well.
Senator Inhofe. Thank you, Mr. Secretary.
My time has expired, but in the next round I am going to be
asking you if there is anything you want to elaborate on
regarding imprints. That is a very significant subject.
We are going to on the early bird rule. Senator Wyden?
Senator Wyden. Thank you very much, Mr. Chairman.
Mr. Cohen, I was very troubled by your comment that your
Agency is engaged in a defensive action. It looks to me like an
offensive preemptive attack on the Nation's environmental laws.
I want to tell you exactly why I feel that way. I looked at
your testimony very carefully.
You essentially say in the testimony, ``OK, there really
isn't a problem with the environmental laws affecting readiness
right now.'' But then you go on to say, ``If litigants in the
pending cases end up being successful, then at some point down
the road military readiness could be affected. That is why we
need to engage in preemptive efforts to change the
environmental laws now.''
I want to give you an opportunity to comment on it. That is
the way it really looks to this member in the Senate.
Mr. Cohen. Thank you, sir.
The reason why we believe that we are trying to preserve
the regulatory status quo, which was the source of my comment
that we were sort on the defensive in this, is that we believe
we are largely codifying the existing regulatory practices and
policies, both of the States and of our Federal regulators.
Senator Wyden. Are you not concerned about the possibility
of future cases? You are not pointing to cases today; are you?
Mr. Cohen. Yes, sir. Actually in a number of instances we
are. There is Endangered Species Act litigation, for example,
currently pending pursuant to which the Fish and Wildlife
Service is going to have to again in just a few days make a
decision whether to designate large parts of Camp Pendleton and
Miramar as critical habitat. That is ongoing litigation.
Senator Wyden. But it has not come down against the
Department as of today.
Mr. Cohen. Yes, sir.
Senator Wyden. Mr. Chairman and colleagues, that is the
bottom line here. The decisions have not come down against the
Department and military readiness as of now. But we are
supposed to engage in preemptive action against something that
may happen in the future.
What if the decisions do not go against you in the future?
Mr. Cohen. Sir, there are a number of reasons that we think
that there is a wave of pending litigation in virtually all of
these areas which does present a threat. Reasonable people can
differ on this in terms of timing. Philosophically, the
Department and the Administration think it is unjustified or
unwise to actually wait until there is a train wreck in court
and critical national security activities are jeopardizes.
Just to give one example, sir. Some very critical training
activities which were taking place at an island in the Western
Pacific, Farallon de Medinilla, directly in support of
Operation Enduring Freedom, were enjoined last year under the
Migratory Bird Treaty Act. Congress very responsibly and
quickly took action to revise the statute. But the injunction
had already been in place for some time.
It is our believe that it is better public policy if we can
see these threats clearly emerging and if they are systemic to
try to address them proactively.
Senator Wyden. I think--and extra points for candor, Mr.
Cohen--you have defined what this issue is all about. You are
concerned about something that may happen in the future. So
something ought to be done in a preemptive way now when I, and
several of my colleagues, say, ``We have had these laws on the
books for a long time for a number of conflicts. We do not have
the decisions that undermine readiness as of now.''
I think it is very unfortunate that we are talking about
preemptive assault on the Nation's environmental laws when
there is no body of evidence indicating that the problems have
been seen under existing kinds of decisions. The future rulings
may not go against you, but you have defined the issue at least
clearly for me.
I have one last question, if I might. The Umatilla Chemical
Weapons Depot in my State is currently in the process of
destroying stock piles of nerve gas and other weapons. That its
sole function there. No combat or military readiness is going
on there. There is considerable interest in my part of the
world given the current mission of the Depot that it should not
qualify as a type of range where they would be an exemption
from environmental laws.
I would like to have your thoughts this morning on that.
Mr. Cohen. Yes, sir. The chemical incineration activities
that you are describing, the chemical destruction activities at
Umatilla would not be covered. They would not qualify as a
military readiness activity.
Senator Wyden. I am sorry; what did you say?
Mr. Cohen. The chemical demilitarization activities at
those facilities would not qualify as a military readiness
activity in the definition that we have provided. So it would
not be affected by our legislation.
Senator Wyden. My constituents will be pleased.
I look forward to working with you. My door is open to you
when there is evidence of a problem But to say we are going to
toss all these environmental laws aside on the basis of what
you characterize as a potential wave of problems does not make
sense.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Wyden.
I inadvertently overlooked our ranking Democratic member,
Senator Jeffords.
Senator Jeffords. Having served on a destroyer and being
the gunnery officer, I am well aware of the necessity and need
for the ability of the military to practice. However, I do have
concerns for what we are talking about today.
Mr. Cohen, I appreciate your sharing with my staff
suggested changes to the definition of ``operational ranges''
to address some concerns regarding inadvertently exempting
contractors.
However, as I read the revised definition, ``An inactive
range last used during World War I could be exempt from cleanup
as long as DOD still considers the area to be a range.'' Is
that correct?
Mr. Cohen. Sir, actually that is only one part of a three-
part test. The test for when a range is inactive as opposed to
closed is that it must be under the jurisdiction, custody, or
control of a military department. No. 2, it cannot have been
put to an inconsistent use--to a use that is inconsistent with
range activities. We could not have built a base hospital on
it. It still has to be considered by the Secretary of the
military department to be a range.
So there are actually three tests; two of which are
objective tests rather than any subjective tests.
Senator Jeffords. So the answer is that that one that has
not been used since World War I is still a range?
Mr. Cohen. I am sorry. I did not hear you, sir.
Senator Jeffords. I referred to the range from World War I
that has not been used since then. That is still a range under
your definition?
Mr. Cohen. Sir, if it is still under the control, custody,
and jurisdiction of the military department, if it has not been
put to a use that precludes its future use as a range, and if
the Secretary in question still considered it to be a viable
potential active range, then it would be a range, sir. An
inactive range. The answer to your question would be yes, if
those three conditions were met.
Senator Jeffords. If you had not built a hospital, then it
is still a range?
Mr. Cohen. If we had built a hospital, sir, if we had put
it to an inconsistent use, then it could not be an inactive
range by definition. So it would fail to meet the three-part
test. That test is in existing law. It is in the Military
Munitions Rule.
Senator Jeffords. Thank you.
Mr. Manson, the U.S. Fish and Wildlife Service's recent
report to Congress on the Sikes Act and INRMP's states that,
``The Fish and Wildlife Service has established effective
partnerships with the military services to facilitate
collaborative national resource management on installations
while the military continues to successfully carry out its
missions.''
In your testimony, you have given an example of how the
Service has worked with DOD at Fort Hunter Liggett and excluded
an area from the critical habitat definition because the
Service determined that the adverse impacts to national defense
exceeded the benefits that would have resulted from designating
the areas as critical habitat.
This seems to be a perfect example of how current law is
working with existing authority to accommodate both military
preparedness and species protection without requiring an
exemption.
If current law provides for exclusions from critical
habitat designation, why is this exemption necessary?
Mr. Manson. Well, Senator, there are a couple of different
aspects to this. We do have the ability on a case-by-case basis
to weigh benefits of exclusion versus the benefits of
inclusion. We have long had a policy, however, of excluding
lands where there is an approved INRMP. It seems to me that
that is a more prudent policy because we know where there is an
approved INRMP that there has been collaboration between the
Fish and Wildlife Service, the military, and the State agency.
It seems prudent, in my view, to codify that policy so that
it is clear, unambiguous, and not subject to attacks through
litigation.
Senator Jeffords. Mr. Suarez, the bill would exempt DOD
ranges from the information gathering and access requirements
of the Superfund and hazardous waste laws. While preserving
EPA's superfund emergency authority, I am concern that the bill
would significantly impair EPA's ability to uncover information
about emergencies until the toxic waste leeches off-range. Am I
appropriately concerned?
Mr. Suarez. EPA still has a number of authorities where we
could collect information. As I indicated, there are no changes
under the Safe Drinking Water Act. We retain the ability to
gather information if, in fact, in the example that you
referenced in your opening remarks, there were a possibility of
a contaminant in the sole source aquifer, EPA would retain the
ability to gather information to determine if it poses a threat
to human health and the environment.
Senator Jeffords. Thank you.
Senator Inhofe. Thank you, Senator Jeffords.
Senator Boxer?
Senator Boxer. Thank you. I am going to be very straight
from the shoulder. We do not have a problem here. We have the
ability of any President of either party to say there is a
national security problem and these acts are waived except for
Marine Mammal. By the way, I am on the Commerce Committee that
has jurisdiction over that. I think we can see that the dolphin
are making a contribution to national security. So maybe it is
good to protect them.
But the bottom line is this. We do not have a problem. For
me to see the Environmental Protection Agency and the Fish and
Wildlife Service--who are charged with protecting the
environment--sitting here at this table and supporting this, it
is deeply distressing, but not surprising. I understand DOD.
They want to get out of this thing. I do not agree with them. I
think it is a bad thing. If you are really protecting the
country you have to protect it here at home. So I think it is a
bad thing.
This Administration has the worse environmental record of
any I have ever seen. It is just a perfect picture here. My
people are really upset about this, Mr. Chairman. We have
cities that are struggling to clean up the mess that was made
by DOD and its contractors. What is the solution? Not paying to
clean up the mess but giving them the bill. These are cities
that have Republicans in control. This is not political.
This is personal to those people. These people are going to
get cancer because of the perchlorate. People are going to get
sick. That is not even a question. And, how about this? Out of
the 165 Federal facilities listed on the Superfund National
Priorities list, 129 of these are DOD facilities. And you are
just going to walk away? Even though Mr. Suarez says, ``Oh, the
contractors are not off the hook.''
I ask unanimous consent to put in the record an analysis by
the Attorneys General of Colorado saying they are absolutely
going to let the contractors off the hook.
Senator Inhofe. Without objection.
[Material to be supplied follows:]
Senator Boxer. I just want to say that I am not stunned
that you want to back door repeal of environmental laws. That
is what I see you are doing from day one. But I am stunned that
you take on the State and local people. I will just tell you a
few things here.
The National Association of Attorneys General passed a
resolution in March opposing DOD's exemption from environmental
laws; are you aware of that, Mr. Suarez, that they have done
that?
Mr. Suarez. I believe I am, yes.
Senator Boxer. OK. Are you aware that the State and local
air pollution regulators oppose DOD's exemption from
environmental laws?
Mr. Suarez. I am not familiar with that specific letter.
Senator Boxer. I will send that to you.
Mr. Suarez. Thank you, Senator.
Senator Boxer. Are you aware that State and local water
quality regulators oppose DOD's exemption from environmental
laws?
Mr. Suarez. I am not familiar with that letter, Senator.
Senator Boxer. I will send that to you.
The National League of Cities finds that--and I am going to
read a letter from one of our later witnesses. Actually it is
her testimony. She is a council member from Colorado. ``The
ramifications of a blanket exemption for military facilities
and activities from such laws will be serious and untenable at
the local level.'' Have you seen her testimony?
Mr. Suarez. I have not seen her testimony.
Senator Boxer. I will make sure you do.
Mr. Suarez. Thank you, Senator.
Senator Boxer. I would ask unanimous consent to enter into
the record a statement from the California Department of Toxic
Substance Control in opposition to these proposals.
Senator Inhofe. Without objection.
[Material to be supplied follows:]
Senator Boxer. Mr. Chairman, this information details the
effects these proposals will have on the people of my State. I
urge you, Mr. Suarez, to read those.
I just want to say clearly that this is a problem that does
not exist. The GAO said that. Your own Administrator said it.
Now she has backed off. But that is her right. She made the
statement right here on the budget that there was one example
that she find where national security was ever impacted.
So here we are at the Environment Committee. I always
considered it the greatest committee because we work so well
together. We have made such progress on the environment over
the years. Senator Moynihan, may he rest in peace, was one of
those leaders. Senator John Chafee was one of those leaders. I
won't list all the others.
But I have to say this is a sad day that I would see the
Environmental Protection Agency and the Fish and Wildlife
Service--charged with the responsibility of protecting the
environment and upholding the environmental laws--just in
essence urging a giant loophole in our landmark environmental
laws.
The people in this country are going to see right through
this. They are smart. If they do not see it right away, I am
going to make sure that they read all of these letters that
came in from their representatives at the water district level,
for God's sake. What an awful thing to have--our military that
is so great and leading us and saving the word from tyrants,
walking away from responsibilities so important. And to have
the EPA to support it is beyond me.
Senator Inhofe. Thank you, Senator Boxer.
I will take the prerogative of the chair and only comment
as to your partisan allegations--three of the four proposals
were put together in the Clinton Administration.
Senator Reid?
Senator Boxer. These are different than the Clinton
Administration.
Senator Reid. I have talked with Senator Ensign on several
occasions because I wanted to alert him, and he already knew
that we have a significant problem. Everything in the Las Vegas
Valley drains into what we call the Las Vegas Wash. Also
draining into the Las Vegas Wash--only about 1.5 percent of the
total drainage--is some very bad stuff coming from the
industrial complex we have had there since World War II--
perchlorate.
Senator Boxer has spoken about this. Senator Feinstein has
been extremely concerned about this. We have 46 sites now that
are contaminated with perchlorate around the country. The one
we are concerned about, of course, is the one in Nevada that
drains into the Colorado River affecting the water in the whole
Colorado Basin and affects the 35 million people that Senator
Boxer represents.
Senator Ensign indicated that you were going to make sure
that any legislation that you proposed--and I say this to you,
Mr. Cohen--took care of the 46 perchlorate sites. That is, that
the Department of Defense would not in any way through this
legislation try to back out of the responsibilities that they
have in working to help cleanup these sites dealing with
contamination by perchlorate; is that true? Is that what you
told Senator Ensign?
Mr. Cohen. Yes, sir; that is right.
Senator Reid. Have you worked on that language yet? Has
anyone worked on that?
Mr. Cohen. Yes, sir.
Senator Reid. Do you have it ready yet?
Mr. Cohen. Actually, sir, it is referenced in my testimony.
Senator Reid. This one today? I did not read that.
Mr. Cohen. Sir, we are also happy to stand ready to work
with this committee or the Armed Services Committee to make
absolutely and unambiguously clear that we are not intending to
cover closed sites, formerly used defense sites, our
contractors, or any of our activities that take place off an
operational range itself.
Senator Reid. The 46 perchlorate sites are not all like the
one we have in Henderson, Nevada. In Henderson, the perchlorate
came as a result of work done by private contractors who were
given the blueprint, so to speak, as to what to manufacture by
the Defense Department. But there are other sites around the
country that are simply defense sites where, for example, they
were washing rocket engines and things of that nature, and the
perchlorate ran off. That is why they have had to close a
number of wells in California because of that contamination.
You understand that perchlorate is a constituent of
munitions and is still exempt from Superfund and RCRA; is that
right?
Mr. Cohen. Yes, sir; there is not MCL established for it.
Senator Reid. Under the new language?
Mr. Cohen. Our new language, sir, is only intended--and we
think actually the language achieves this effect--to provide
for our operational ranges while they are operational. So to
the extent that those 46 sites are closed spaces, closed
ranges, or are contractor sites, or result from waste
management practices, even on an active range, they would not
be affected at all.
Senator Reid. OK. Mr. Cohen, what if you have a
combination? What if you have an active defense site? You would
also exempt that from your new proposal?
Mr. Cohen. Like the Massachusetts Military Reservation,
sir, that is a good example of an active site that was
resulting from some perchlorate discharge into a sole source
aquifer. That would still be covered because of the Safe
Drinking Water Act authorities that are now being used by EPA
to have us cleanup that site, to have us address this
perchlorate contamination, are not affected at all by our
provision.
So what happened at the Massachusetts Military
Reservation--all the regulatory actions that EPA took--would
still take place. We drafted it very carefully to make sure
that there would be no change in the outcome there.
Senator Reid. So what you told Senator Ensign is that
perchlorate problems around the country, that this proposed
legislation of the Department of Defense, would have no bearing
on any of those 46 sites?
Mr. Cohen. I believe that is correct, sir.
Senator Reid. That is your intention; is that true?
Mr. Cohen. Yes, sir; in that if they are operational
ranges, they would be addressed under the Safe Drinking Water
Act.
Senator Reid. You are not exempting from the Safe Drinking
Water Act?
Mr. Cohen. That is correct, sir.
Senator Boxer. Could you yield for a quick question?
Senator Reid. Of course.
Senator Boxer. What standard will you clean it up to for
perchlorate?
Mr. Cohen. There is currently no promulgated MCL.
Senator Boxer. So what standard will you clean it up? To
the State standard?
Mr. Cohen. There would be a site-specific finding or a
health assessment or risk assessment about the site. To make
that site-specific finding when you do not have a promulgated
MCL or a draft reference dose that is final, then the local
regulators would simply have to make the best judgment that
they could.
Senator Inhofe. The Senator's time has expired.
Senator Cornyn?
OPENING STATEMENT OF HON. JOHN CORNYN, U.S. SENATOR FROM THE
STATE OF TEXAX
Senator Cornyn. Thank you, Mr. Chairman.
I come to this subject with the background of having been
Attorney General of the State of Texas for 4 years. I certainly
appreciate the importance of vigorous enforcement of our
environmental laws, both State and Federal. I am proud of the
fact that up until yesterday, I believe, Mr. Chairman, this
most recent record of $35 million in civil penalties for
violation of the Clean Water Act, that the State of Texas under
my Administration held the previous record for civil penalties
for violation of that Act.
I wanted to make that clear. I certainly believe that
vigorous enforcement is important. But at the same time I want
to make sure that our troops are ready for the job that we have
asked them to do. I do not believe that we have to make a
choice between people and critters. I do not believe this is a
zero sum game.
I believe that we can have a military force that is
properly trained and at the same time respect the environment
in which we all live. I really reject the notion that some
people care about the environment and other people do not. We
all live and breathe and drink the water in the environment we
have. I do consider myself very concerned about the environment
as well.
Mr. Cohen, perhaps you can address this. I believe this
proposal is meant to address the complications associated with
lengthy and expensive diversionary litigation and the desire to
see that the law be clearly expressed so as to avoid the
necessity or the likelihood of litigation interpreting just
where the restrictions end and where freedom to train our
troops begins.
Would you react to that?
Mr. Cohen. Thank you, sir.
I would like to take the chance to answer that and also to
try to put in perspective the suggestion that Congress should
wait to act until actual adverse decisions have been handed
down.
It is certainly true that this ongoing litigation is a
tremendous drain on the resources of both the regulatory
agencies, particularly as Judge Manson can attest with respect
to the enormous wave of critical habitat litigation that is
cresting all over the country, and also for DOD. The fear we
have and the concern we have is that at the end of this long,
lengthy, and expensive process, there could be imposed
crippling restrictions on military readiness that actually have
relatively little or no environmental benefit to offset them.
Our view is that it is prudent for Congress to act now and
that the risk of Congress acting now is negligible because all
we are asking Congress to do is codify existing regulatory
policies and practices.
It would be one thing if we were come to Congress and say,
``Please radically recast the environmental laws on the off-
chance that we might lose a case in a few years.'' But it is
quite different to say, ``We have ongoing litigation in many
areas across the country that challenges existing law and
challenges existing regulatory policies of the State, EPA, and
other Federal regulators. Please stabilize this situation and
act to clarify and confirm what the law is.''
Senator Cornyn. I know there have been some suggestions
that this is a purely anticipatory action on the part of the
Administration but, in fact, as you may know, at Fort Hood in
Texas, which has a large range of 200,000 acres over many
decades, that large portions of Fort Hood are restricted from
training due to a variety of encroachment factors--endangered
species, water, air quality concerns, noise levels--all come
into play. The net result is three-fourths of Fort Hood, some
150,000 acres has some sort of restriction that impacts the
ability of unit commanders to train forces there.
I might just also point out that the GAO report, which I
believe is already part of the record, points out on page
eight, that in fact current restrictions on training do affect
the preparation and the readiness of our special operations
forces--the very same forces who just recently liberated
Private Jessica Lynch from an Iraqi Hospital.
But do you find, Mr. Cohen, that the military has also had
to work around restrictions? Has that had an impact on training
and readiness?
Mr. Cohen. Yes, sir, I think all of our commanders who have
testified before Congress have affirmed that the cumulative
effect of these workarounds have been very serious. It is our
desire to stabilize the situation now.
Senator Cornyn. My time has expired, Mr. Chairman.
[An article submitted for the record by Senator Cornyn
follows:]
From the Wall Street Journal, March 27, 2003]
Birds And Warriors
With U.S. troops risking their lives in Iraq, it's a good time to
examine rules at home that make it harder for them to prepare to fight.
Congress could start by granting the Pentagon's urgent request to
change environmental rules and lawsuits that limit military training.
Consider that about 72 percent of Fort Lewis, Washington, is
restricted to troops because it is ``critical habitat'' for the
Northern Spotted Owl--though none live on the base. Or that 22,000
acres of California's Fort Irwin are largely unusable because of the
Desert Tortoise. Or that 77 percent of Fort Hood in Texas is restricted
at some time during the year because of species and cultural artifacts.
The Barry Goldwater range in Arizona must employ four biologists to
chase Sonoran pronghorn antelope and close areas if any are found
within five kilometers of a target; 30 percent of the Air Force's live
ammunition drops have had to be moved. Environmental lawsuits would put
57 percent of California's Camp Pendleton out of use. That's a home of
the Marines.
America's troops have just 25 million acres on which to train (less
than 1 percent of the nation) but they must look after 300 threatened
or endangered species. These restrictions are taking their toll. A
General Accounting Office report last year said the situation ``limits
units' ability to train as they would expect to fight . . .''
It's not as if the military isn't trying. From 1991-2001, the
military spent $48 billion on environmental programs, sometimes to its
own detriment. When the loggerhead shrike was listed endangered in
1977, San Clemente Island had 13 birds. Under the Navy's care the
population has grown to 160 (70 in the wild), forcing the Navy in turn
to reduce the size of two firing ranges--one by 90 percent, the other
by 50 percent.
The reforms sought by the Pentagon aren't large, merely common-
sense clarifications of law. Several were first proposed by none other
than the Clinton Administration, and not one would exempt the military
from its environmental obligations.
For example, under the Endangered Species Act environmental groups
can get judges to declare swathes of bases ``critical habitat'' that
are off-limits to real training. The military merely wants more
flexibility to design species management plans that still allow for
human use of the land. The Marine Mammal Act penalizes anyone who
``harasses'' marine mammals, and all the military wants is a clear,
reasonable definition of mammal harassment. (We assume it's more than a
lewd comment.) Other changes include clarification of clean-up at live
bases, flexibility in the clean air statute and a fix to the Migratory
Bird Treaty Act.
Yet from the howls from green groups, you'd think the Pentagon had
decided to bomb Yellowstone. The Natural Resources Defense Council and
other enviros claim there is no military readiness problem, as if
they're qualified to judge. Wouldn't you rather trust the generals who
have to prevail against Republican Guard tanks?
Michigan Democrats Carl Levin and John Dingell have fought these
changes, with Mr. Dingell lending his familiar voice of moderation by
calling the proposals opportunistic and therefore ``despicable.''
Sounds to us like he's afraid he might have to vote on them. The GOP
Congress might as well give him the chance to favor the loggerhead
shrike over the 7th Cavalry
Senator Inhofe. Senator Cornyn, in my opening statement we
talked about ``workarounds.'' Now we are working around the
workarounds.
[Laughter.]
Senator Inhofe. Senator Carper, you are recognized for 5
minutes.
OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM
THE STATE OF DELAWARE
Senator Carper. Thank you, Mr. Chairman. To our witnesses,
I missed your opening statements. As you know, we have a number
of hearings going on. Senator Cornyn and I were together at
another hearing. I slipped out of that one to come over and say
hello to you and to hear what is on your minds and maybe to ask
a question or two.
Since I have not heard your testimony, I am just going to
ask each of you to take 60 seconds and tell me what you would
like me to take out of what each of you have to say.
Mr. Cohen?
Mr. Cohen. Basically the message that the Department of
Defense would like to leave with you, sir, is that our
legislative package is not a sweeping exemption or a sweeping
change in the regulatory status quo. It is designed to
stabilize and defense existing regulatory policies of all the
States and of prior Administrations here at the Federal level
in the face of a rising wave of litigation that is seeking to
overturn that regulatory policy.
Senator Carper. Mr. Suarez?
Mr. Suarez. Thank you, Senator Carper. The message that we
are here to say is that we support the Administration's bill
because we believe that EPA retains the authority necessary in
order to protect public health and the environment. The
proposal that the military has put forward balances their need
for readiness while at the same time preserving our ability to
take whatever actions are necessary in order to protect the
public on or off an operational range and their drinking water
sources.
We are comfortable with the changes and we support them.
Senator Carper. Mr. Manson?
Mr. Manson. Thank you, Senator. The position of the
Department of the Interior is that with respect to the proposal
that relates to critical habitat, the proposal codifies a long-
standing policy that the Department has had. It is a prudent
policy. It is one that provides a true conservation benefit to
species. In fact, perhaps it will provide greater conservation
benefits than the current critical habitat process does.
Senator Carper. Having missed the first part of this
hearing, I am not sure what concerns have been raised by
others. I understand in the brief exchange I had with Senator
Boxer that some concerns have been raised.
Let me just ask you. Just characterize for me what you
believe some of the concerns are that are not well founded?
What are some of the concerns that you think are more
understandable that have been expressed here or outside of this
hearing?
Mr. Cohen. Speaking for DOD, our view is that a lot of the
people who have read our legislation have taken counsel of
their fears and think that we are actually trying to achieve
far more than we are. They are concerned that our legislation
is designed to exempt our closed sites, formerly used defense
sites, our contractors, to let us out of cleanup obligations
that we may have when a range closes. Those concerns are not
well founded. We try to draft, in the first instance, around
them. We are continuing to work with EPA and OMB to clarify
that the narrow intent of what we are trying to do is to
safeguard our operational ranges where we do test and training
and nothing else.
We are not trying to solve all of the world's problems or
all of DOD's problems. We are simply focused in this package on
our military readiness activities and not the whole scope of
what we do and certainly not the scope of what we did at our
closed ranges.
I am hopeful that we will be able to address that concern
and focus people's attention on what we are trying to do.
Reasonable people can differ on what we are actually trying to
do. But we do want the debate to be focused on that rather than
onsite issues.
The other concern that was expressed was that existing
legislation already had waivers and exemptions that we could
take advantage of. So why have we not used those? DOD's view is
that those are site specific and time limited. Where we can
show that there is a systemic problem, or would be a systemic
problem if litigation comes out the wrong way, it is
inappropriate for us to rely onsite specific, time limited,
exemptions when that clearly was not Congress' intent when it
enacted them.
Senator Carper. Thank you. Gentlemen?
Mr. Suarez. Senator, as I understand the concerns, it is
that EPA will lose its ability to take action where necessary
and will essentially exempt the military from their obligations
to clean up under our environmental laws.
We have worked very closely with the military and DOD in
looking at their proposal, and indeed redrafting it on a number
of occasions and proposing even further clarifying language to
make clear, as Mr. Cohen has indicated, that what they are
asking for is narrowly tailored. In fact, EPA retains the
ability to take action where necessary to protect the threat to
the public health and the environment.
If there were a message that I want people to understand,
it is that EPA is not abandoning its obligations, nor is it
allowing DOD a free pass. Rather, we are balancing their
interest with our need to protect the public. We think this
bill provides that appropriate balance.
Senator Carper. Mr. Manson?
Mr. Manson. I think one concern that people have that is
not well founded is that somehow habitat will be left
unprotected and also that the Fish and Wildlife Service somehow
will not be involved in future decisions concerning habitat.
In fact, the process using the Integrated Natural Resources
Management Plan is a collaborative process that requires the
agreement and the participation of the Fish and Wildlife
Service and an INRMP cannot be approved without the agreement
of the Fish and Wildlife Service. The Service will continue to
be involved. Habitat will continue to be afforded the
protections that is necessary for the conservation of species.
Senator Carper. My time has expired.
Let me just say, if I could, Mr. Chairman, thinking back on
some of the jobs that I have had in the past, I was a Naval
flight officer and spent about 23 years of my life on active
reserve and reserve duty. I have flown to a lot of bases around
the world in that job.
As former Governor and chief executive officer of our
State, I was privileged to be the commander-in-chief for the
Delaware Army and Air National Guard. I have some experience
from that perspective in running our own agency that dealt with
natural resources and environmental control. I thought a great
deal about protecting our air, our water, and our ground.
In closing, we as the Federal Government expect other
people and other businesses around this country to be good
standards of the environment. I learned a long time ago as a
Navy ROTC midshipman that one of the hallmarks of leadership is
leadership by example. It is just important as we go down this
road to make sure that we not only preach a good message, but
that we also demonstrate by our own example good leadership for
others to follow.
Thank you.
Senator Inhofe. Thank you, Senator Carper.
We are going to go to our next panel. But before you do,
since you went a minute over, let me get one more minute in
here.
You can answer this, Mr. Suarez, for the record. I need to
find out what the status of the consent agreement is on the Tar
Creek feasibility study. Would you get back with me sometime
today or tomorrow on that? I would appreciate it.
[Material to be supplied follows:]
Senator Inhofe. Last, I really felt it is necessary after
what Senator Boxer had implied by being partisan in these
efforts, in terms of the Marine Mammal Protection Act, the
imprints, the RCRA, and Superfund--are these not essentially
the same as came forth in the Clinton Administration? Do any of
you want to respond to that?
Mr. Cohen. Most of our Marine Mammal Protection Act
proposal codifies policies--in one instance a 20-year-old
policy of NOAA, and in another instance a policy that was
arrived at during the Clinton Administration embodied in
regulation in which they also put forward as a proposed change
to the Marine Mammal Protection Act itself.
We also try to add to the MMPA a national security waiver.
We think that every environmental statute should have one. With
respect to the ESA, what our proposal seeks to do is, as Judge
Manson has pointed out, to codify a policy that was adopted
during the Clinton Administration with respect to INRMPs. With
respect to RCRA and CERCLA, what we are trying to do is
basically codify the existing regulatory policy of EPA and the
States, a policy that they followed not only during the Clinton
Administration, but ever since RCRA and CERCLA were enacted.
Senator Inhofe. Do the other of you agree with the
statement of Mr. Cohen?
Mr. Suarez. Mr. Chairman, I would concur as to the EPA
Munitions Policy Rule. This proposal largely serves to codify
that policy that has been in place since 1997.
Mr. Manson. I concur, Mr. Chairman, as to the ESA
provision.
Senator Inhofe. Thank you. I appreciate your time. We
really did not want to go this long. We will excuse you and ask
the second panel to be seated.
We have Frank Gaffey, President and CEO, the Center for
Security Policy; Barry Homan, Director, Defense Infrastructure
Issues, GAO; Dan Miller, First Assistant Attorney General,
Natural Resources and Environment Section, Colorado Department
of Law; Douglas Benevento, Executive Director, Colorado
Department of Public Health and Environment; and Jamie Clark,
Senior Vice President for Conservation Programs, National
Wildlife Federation.
These last two appeared before us yesterday and we
appreciate your coming back again today. We have Ingrid
Lindemann, Council Member, Aurora, Colorado, National League of
cities Advisory Council; and Bonner Cohen, Senior Fellow,
Lexington Institute.
Mr. Benevento, I appreciate your being here. The last time
you were sitting on this side of the table advising Senator
Allard. It is nice to have all of you from Colorado.
What we would like to do is to give you a full 5 minutes
for an opening statement. I regret that we cannot do better
than that. That is what we will have to live with.
We will start with Frank Gaffney. Mr. Gaffney?
STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT AND CEO, CENTER
FOR SECURITY POLICY
Mr. Gaffney. Thank you very much, Mr. Chairman.
I would like to preface my remarks by expressing my
personal appreciation and I am sure that of all the men and
women in uniform for your extraordinary leadership on issues
bearing on their readiness for combat.
I can think of no one who has devoted themselves more
tirelessly and more courageously than you have to tackling
decisions that may at some point determine whether those who
serve have been properly trained. You do so, of course, because
you appreciate that the difference can seem inconsequential at
the time of the training.
But it can prove determinative--even literally as you said
earlier in your opening statement a matter of life and death in
combat situations. I think you deserve particular recognition
for your efforts to ensure that Atlantic-based U.S. forces
continue to be able to be able to and experience as part of
their training the closest thing to actual combat conditions:
large-scale, live-fire combined arms exercises.
In my judgment, it is nothing less than a travesty that
shortsighted political considerations have been allowed to
trump longstanding--and abiding--national security
requirements, thereby denying the American military future use
of its only facility in the Atlantic dedicated to this purpose:
the Island of Vieques.
Today as we witness American servicemen and women risking
their lives for our safety and security, it is simply
unfathomable that we would stint in any way on assuring theirs.
The harrowing experience is being televised hourly from the
battlefields of Iraq. The sorts of threats are troops are
encountering there, in Afghanistan, and other theaters in the
world on terror. The manifest need for adaptability in the face
of unexpected forms of energy action all underscore the
necessity of affording the maximum latitude to conduct
realistic training to those charged with preparing our troops
for war.
As you know, Mr. Chairman, I had the privilege of working
early in my career for the late Senator Henry M. Jackson of
Washington State. In his capacity as Chairman of the Senate
Energy and Resources Committee, Scoop was the principle author
of and prime mover behind the National Environmental Protection
Act and numerous other legislative initiatives aimed at
protecting our habitat.
Like you, Scoop was also committed to the national security
of the United States. I believe he would be horrified at the
situation that confronts our military today. As a result of
environmental legislation, regulations, and as we have been
talking about this morning, judicial rulings run amok. In fact,
I am confident that were Senator Jackson still with us, he
would be joining you in supporting at least the modest redress
the Defense Department seeks in the form of the proposed 2003
Readiness and Range Preservation Initiative now before the
Congress.
If anything, I would respectfully suggest that far more
relief is needed than that called for in these minimalist
proposals especially in the time of war. We should return the
training ranges and facilities our Government and people have
dedicated to the military's use to their fullest necessary
utilization.
By failing to do so we are clearly subordinating national
security to what is under present and foreseeable circumstances
in excessive and currently insupportable regard for the
habitats of certain so-called endangered species.
One of our military's finest leaders, Lieutenant General
Edward Hanlon, Jr., of the U.S. Marine Corps, spoke for all
those in uniform when he testified in May 2001 before the House
Armed Services Committee in his capacity at that time as
Commanding General of Camp Pendleton. He said:
``Our ability to train effectively is being slowly eroded
by encroachment on many fronts. Urbanization, increasing
environmental restrictions, and increasing civilian demands for
airspace, land, sea space, and radio frequencies threaten the
long-term, sustained use of Marine Corps bases and ranges.
Encroachment is a serious and growing challenge. Solutions are
possible--we must achieve the necessary and right balance
between military readiness, encroachment pressures, and
stewardship responsibilities.''
Mr. Chairman, the 2003 Readiness and Range Preservation
Initiative does strike a balance. I fear, frankly, that it
favors too much the status quo concerning environmental
protection at the expense of military training and the
consequent ability of our service personnel to survive and
prevail in combat.
We hear a lot of talk about supporting our troops. This
really is a test case. I hope that the Congress will, at an
absolute minimum, provide the relief envisioned in this
legislative initiative. I would urge the members of this
committee, however, to give serious consideration as well to
further steps that can materially contribute to the realism and
utility of our military training exercises and, therefore, to
the likelihood that our loved ones in uniform will be able to
conduct their missions safely and successfully.
I would be happy to answer any questions.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Mr. Gaffney.
Mr. Holman?
STATEMENT OF BARRY W. HOLMAN, DIRECTOR, DEFENSE INFRASTRUCTURE
ISSUES, GENERAL ACCOUNTING OFFICE
Mr. Holman. Thank you, Mr. Chairman. I am pleased to be
here today to discuss the results of our work dealing with
encroachment and its impact on military training. My testimony
is largely built on the work we completed last year reviewing
the effects of encroachment here in the United States. We also
completed similar work examining training overseas.
Today I will briefly highlight our findings regarding the
impact of encroachment on training range capabilities, DOD's
efforts to document the effects of encroachment on readiness
and cost, and DOD's progress in dealing with encroachment over
all.
Let me say that we have identified numerous examples where
encroachment has affected some training range capabilities
requiring, as you mentioned earlier, workarounds or adjustments
to training events and, in some cases, limited training. The
potential problem with workarounds is they lack realism and can
lead to practices and tactics that are contrary to those that
are used in combat. Military officials, both stateside and
abroad, have told us that encroachment at times limits the time
that training ranges are available, the types of training that
can be conducted, and makes it difficult to train as they
intend to fight. Service officials believe that urban and
population growth are primarily responsible or root causes for
encroachment in the United States and are likely to cause more
training range losses in the future. DOD is particularly
affected in this regard since growth around many of its
installations exceeds the national average.
Despite DOD and service concerns about the effects of
encroachment on training, we found last year that DOD readiness
reports did not indicate the extent to which encroachment was
adversely affecting training, readiness, and cost. In fact, at
the time we did our review most readiness reports showed that
units had a high state of readiness and they were largely
silent on the issue of encroachment.
However, let me add that we do not believe the absence of
data in these reports concerning encroachment should be viewed
simply as ``no data, no problem.'' Rather, it may suggest
insufficient emphasis on fully assessing and reporting on the
magnitude of encroachment problems and its effects. Moreover, I
should also add that it probably also reflects the very strong
can-do attitude of our fine military forces.
While unit readiness reports have typically not focused on
problems of encroachment, I want to add that we recently noted
where DOD's quarterly readiness reports to the Congress for the
period ending in December of last year, did indicate an
encroachment problem affecting Air Force flight training. The
report noted that training range encroachment combined with
environmental concerns were placing increasing pressure on the
Air Force's ability to provide effective and realistic
training. It went on to state that cancellations were becoming
a more common occurrence and may soon adversely impact the
quality of training provided.
We have previously reported that improvements in readiness
reporting can and should be made to show any shortfalls in
training. However, DOD's ability to fully assess the effects of
encroachment on training limitations and their overall impact
on training capabilities will be limited without more complete
baseline data on training range requirements, capabilities, and
limitations.
This certainly will not replace other steps needed to deal
with encroachment, but they are important steps to help better
define the magnitude of encroachment problems now and provide
trend data for future use.
While it is widely recognized that encroachment results in
workarounds that increase training costs, these costs are not
easily or readily aggregated to measure their full effect. In a
January 2003 report on training range issues, the U.S. Special
Operations Command noted that the services lacked a reporting
system to document the impact of encroachment or track the cost
of workarounds to either manpower or funds. It noted the
usefulness of such data as an indicator of the level of effort
required to meet readiness requirements and in considering
alternate workaround solutions.
While DOD's plans for dealing with encroachment are still
evolving, we noted that DOD has taken a number of actions in
the past year to improve its management framework for dealing
with encroachment besides the legislative proposals that are
being discussed today.
For example, DOD has issued a range sustainment directive
to establish policy and assign responsibilities for sustainment
of test and training ranges. It has also issued new guidance on
updating and preparing Integrated Natural Resource Management
Plans, approving coordination with the Fish and Wildlife
Service, and with State agencies.
The Department has also indicated plans to take a more
proactive outreach role in working with local governments and
other organizations. While DOD has made some progress in
addressing individual encroachment issues, more work will be
required to improve the data available to fully identify and
report on the effects of encroachment and develop a
comprehensive plan for dealing with those effects as we
recommended in our report last year.
As you may be aware, Mr. Chairman, Section 366 of the
Defense Authorization Act for fiscal year 2003 requires DOD to
issue a series of yearly reports to the Congress dealing with
encroachment issues, beginning with this year and a requirement
for GAO to review those reports.
The first of those reports was required to be submitted
along with the President's budget for fiscal year 2004. That
report was to describe DOD's progress in developing a
comprehensive plan to use existing authorities to address
training constraints on the use of military lands, marine
areas, and air space, in the United States and overseas. To
date, those reports have not been issued.
Mr. Chairman, that concludes my statement.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Mr. Holman.
We are honored to have the distinguished chairman of the
Senate Armed Services Committee and the most ranking member of
this committee. Senator Warner, would you care to make some
comments?
Senator Warner. You know full well my views on this. I
strongly support the efforts being undertaken by the chair.
They will also be undertaken in the Armed Services Committee.
We will hopefully address this issue in the Senate and get the
relief that we need.
Senator Inhofe. Thank you, Senator Warner. It is our
intention to do that. I commented in my opening statement that
we have had 12 hearings on this in the past. We just end up
doing workarounds, and work around workarounds. Nothing gets
done. It is my intention--and I am sure yours--that we get
something done now. People should be sensitive to the problem
that is out there and what is going on in Iraq.
Senator Warner. Yes, they only need to see our brave young
men and women fighting. It should have been handled a long time
ago.
Senator Inhofe. It should have been.
Mr. Miller?
STATEMENT OF DAN MILLER, FIRST ASSISTANT ATTORNEY GENERAL,
NATURAL RESOURCES AND ENVIRONMENT SECTION, COLORADO DEPARTMENT
OF LAW
Mr. Miller. Thank you, Mr. Chairman. I am appearing here
today on behalf of Attorney General Ken Salazar of Colorado. I
am also submitting a detailed written statement on behalf of 15
Attorneys General and a resolution opposing the Department of
Defense's proposed amendments to RCRA, CERCLA, and the Clean
Air Act that the National Association of Attorneys General
passed at its last meeting.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Mr. Miller. I am only going to address those three statutes
in my testimony today.
First, we absolutely support the goal of maintaining the
readiness of our Nation's military. There is simply no question
that the men and women of the Armed Forces need to have all
appropriate training to ensure that they can do their jobs.
At the same time, we strongly support the environmental
laws. We recognize that military training activities can
adversely affect human health and the environment. We think, as
others have testified today, that furthering military readiness
and protecting the environment are compatible goals.
The environmental laws, though, are complex and carefully
balanced. They should not be amended unless there is a
demonstrated problem. This is particularly true given the
environmental impact of DOD's activities.
I would say that in considering DOD's proposals, we need to
answer three questions. First, are there any real conflicts
between RCRA, CERCLA, the Clean Air Act, and military
readiness? Second, in the event of a conflict, are the existing
statutes sufficiently flexible to resolve it in a manner that
preserves military readiness? Third, what exactly do these
proposed amendments do?
Regarding the first question, DOD has not identified a
single instance in which any of these statutes have adversely
impacted readiness. We are not aware of any such instances. EPA
Administrator Christine Whitman recently testified that she was
not aware of a single training mission anywhere in the country
that was being held up because of these laws. Absent any
demonstrated conflicts, we do not believe that the proposed
amendments are necessary.
Second, if there is a conflict, each of these three
statutes allows the President to exempt the Department of
Defense from the environmental requirements. DOD has never
invoked any of these exemptions for military readiness needs.
The exemptions allow flexibility to ensure readiness in the
unlikely event of a conflict, while ensuring accountability in
the vast majority of cases where there is no conflict. So
again, in our view, there is no need for further legislative
action.
As to the third question, DOD has stated that its
amendments merely codify EPA's Military Munitions Rule and that
they apply only to operating military ranges. We disagree. All
the Munitions Rule says is that DOD does not have to get a RCRA
permit for using its ranges.
The fired munitions constituents are still subject to RCRA
cleanup authority in appropriate cases. The Munitions Rule does
not preempt State authority under RCRA and the Munitions Rule
does not affect EPA or State authority onsites other than
operating ranges.
Unlike the Munitions Rule, DOD's proposed amendments to
RCRA and CERCLA amend jurisdictional definitions in both of
these statutes. These definitions determine the reach of both
EPA and State authority under these laws. So, unlike the
Munitions Rule, Section 2019 likely preempts State, EPA, and
RCRA authority to address an imminent and substantial
endangerment posed by munitions from munitions constituents
from an operational range.
Unlike the Munitions Rule, Section 2019 also likely
precludes States and EPA from requiring DOD to address
munitions-related contamination at former ranges now in private
ownership, military sites other than ranges, sites owned by
other Federal agencies, and even private defense contractor
sites. And, unlike the Munitions Rule, Section 2019 creates a
broad exemption from munitions constituents such as perchlorate
and TNT.
What is at stake here? DOD estimates that there are 16
million acres of land on closed ranges that are potentially
contaminated with unexploited ordnance. Much of this land is
privately owned, like the Lowry Bombing Range in Colorado, a
60,000 acre site where the land use is rapidly changing from
cattle grazing to schools and subdivisions. DOD's amendments
would likely preempt Colorado from regulating the ongoing
Federal cleanup of this range.
There are also many sites around the country contaminated
with chemical constituents of munitions or explosives. These
constituents include perchlorate, TNT, and RDX, and may have
toxic or potential carcinogenic effects. Perchlorate has
contaminated public water supplies near the Massachusetts
Military Reservation, the Abderdeen Proving Grounds in
Maryland, and surface and groundwater at hundreds of government
and private defense contractor sites around the country. DOD's
amendments would impact State and EPA authority at many of
these sites.
The States have responsibly balanced environmental
protection and military needs in regulating military facilities
for decades. There is simply no basis to preempt their
authority to protect the health of their citizens and
environment, especially given the availability of the
exemptions under current law.
We would urge you to reject DOD's proposed amendments.
Senator Inhofe. Your time has expired, Mr. Miller.
Thank you very much.
Mr. Benevento, thank you for coming back again today for
more.
STATEMENT OF DOUGLAS BENEVENTO, EXECUTIVE DIRECTOR, COLORADO
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Mr. Benevento. Thank you, sir. My name is Doug Benevento,
and I am the Executive Director of the Colorado Department of
Public Health and Environment. In that position I am the
State's top environmental regulator. I oversee our air, water,
solid waste, and hazardous waste program as well as all of our
public health programs.
I believe that the suggestions of DOD can be implemented in
a fashion that would protect the environment and ensure that
the States have the ability they need to oversee cleanups and
to dictate cleanups where necessary, and also ensure that the
environment can be protected.
Having said that, I have some drafting suggestions with
respect to the proposal from DOD that I would like to share
with the committee. First, with respect to RCRA, what I would
recommend is that instead of the way DOD has drafted it, where
they are changing current definitions, to basically write an
exemption into RCRA for active and inactive ranges.
As opposed to the operational range concept that DOD has
shared, we know what an active range is and we know what an
inactive range is. If you exempt those for the time that they
have those definitions, I think that would not be harmful to
the environmental and it would solve the problem that DOD has
identified to us.
With respect to inactive ranges, there may be some
controversy surrounding exempting inactive ranges. My
understanding is that these are ranges that potentially still
could be used in the future and that the military feels that
they need to keep available.
Therefore, what I would recommend is that there perhaps be
some public process on inactive ranges, where every few years
they would have to go and look at inactive ranges to determine
if, in fact, they are still necessary, that they remain
inactive, they go to active, or if they should go to clean up
status.
I would limit the exemption with tight language so that we
all understand what we are exempting and what we are not
exempting.
I would also have a provision in there for some sort of
groundwater monitoring. My understanding is that the concerns
that have been raised, the biggest threats are groundwater
contamination. That contamination then migrates offsite. I
think where appropriate--and you could really pick out the
areas where you feel the threat of groundwater contamination is
greatest from constitutions of munitions, there could be some
proactive monitoring to ensure that if there was an imminent
threat of a release offsite, that could be addressed.
Finally, on these sites it would be helpful if DOD at all
times would just maintain good records. It makes the cleanup of
the site much cheaper and quicker as it goes to clean up. At
the Lowry Bombing Range, which Mr. Miller mentioned, one of the
issues that we had to deal with the military on was where are
the munitions. We could not quite identify from the records
where they were. We had to do a very expensive investigation.
It just saves time on the back end if record keeping is good.
With respect to CERCLA, I would just make the same comment
to apply the CERCLA waiver to active and inactive ranges. By so
doing, I think you could solve many of the problems.
Finally, with respect to the Clean Air Act, this is the one
area that I think poses the greatest difficulty for States and
for the military to deal with. What you are dealing with are
potential offsite releases.
These releases can be mitigated in different ways. One
possible consideration for the committee would be just to give
an exemption to military readiness activities from the Clean
Air Act, and then require offsets on nonmilitary readiness
activities in the air shed and other DOD activities in the air
shed.
You could also dictate that EPA amend their natural events
policy which does exclude certain events from being counted
against an area for a NAAQS violation. It also requires certain
outreach to the community and certain other mitigation
activities.
Obviously all of these do not absolutely solve the problem,
I think from the environmental perspective or the State
perspective, but I think it brings you very close.
Thank you.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you.
Senator Warner. Could I just make an observation?
Senator Inhofe. Of course.
Senator Warner. I think those are constructive thoughts
that should be carefully reviewed.
What is the procedure by which you are now operating on to
get those views to the Department of Defense? Have you
consulted with them?
Mr. Benevento. Yes, sir. I have spoken both with your staff
on the Armed Services Committee and Mr. Cohen. We have been
trading ideas back and forth. After talking with Mr. Cohen, it
is very clear what he is trying to accomplish. I think it can
be accomplished with some of the thoughts I have shared with
you.
Their language, I think, has been misinterpreted slightly.
Senator Warner. I think you have answered the question I
wanted. We are here to help the Senator and myself.
Are your views consistent with those of the Governor?
Mr. Benevento. Yes.
Senator Inhofe. Thank you, Senator Warner.
Ms. Clark, I also thank you for returning today after
yesterday's lengthy meeting.
STATEMENT OF JAMIE CLARK, SENIOR VICE PRESIDENT FOR
CONSERVATION PROGRAMS, NATIONAL WILDLIFE FEDERATION
Ms. Clark. Thank you. Good morning, Mr. Chairman, and
members of the committee. I am here this morning to testify on
why exempting the Defense Department from key provisions of the
Endangered Species Act would be a serious mistake.
Prior to arriving at the National Wildlife Federation in
2001, I served for 13 years at the U.S. Fish and Wildlife
Service, with the last four as Director of the Agency. Before
my time at the Service, I held a variety of positions with the
military, including the Natural and Cultural Resources Program
Manager for the national Guard Bureau, and the Fish and
Wildlife Administrator for the Department of the Army.
During my tenure at the Fish and Wildlife Service, and in
the Defense Department, DOD routinely worked with the wildlife
agency experts to comply with environmental laws and conserve
imperiled wildlife while achieving military readiness.
This approach of working through compliance issues on an
installation-by-installation basis really does work. As DOD
themselves have acknowledged, our Armed Forces are as prepared
today as they have ever been in their history. Their state of
readiness has been achieved without broad sweeping exemptions
from environmental laws.
The Defense Department's proposed ESA exemptions suffers
from three basic flaws: First, DOD's exemption would eliminate
a key tool for conserving endangered species. Their proposal
would effectively eliminate the potential for critical habitat
designations on defense lands, thus eliminating many of the
consultations that have enabled DOD to look before they leap
into potentially harmful training exercises.
Second, an exemption from the Endangered Species Act is
truly unnecessary. Three provisions of current law already
provide the flexibility needed to balance military readiness
and species conservation.
Section 7(a)(2) of the Act provides Defense with the
opportunity to negotiate locally tailored solutions in
consultation with the Service's wildlife experts. Section
4(b)(2) of the Act obliges the Services to--and they do--
exclude any area from critical habitat designation if they
determine that the benefits of exclusion outweigh the benefits
of inclusion in specifying the area.
Contrary to earlier testimony, the flexibility of this
provision has not been compromised by any court rulings.
Section 7(j) of the Act says an exemption must be granted--and
I emphasize must--for an activity if the Secretary of Defense
finds an exemption is needed for reasons of national security.
It is really unfortunate, Mr. Chairman, that this debate
has relied so heavily on anecdotes in an attempt to show the
Defense agencies have not been able to balance military
readiness and conservation objectives.
In a June 2002 report on encroachment, the GAO looked into
many of the anecdotes. It found that Defense agencies have
never inventoried their training resources, plan for their
training needs, or performed any in-depth analysis of civilian
encroachment on readiness activities.
Without any real evidence that environmental laws are at
fault for any presumed readiness gaps, DOD has no basis for
requesting wholesale exemptions from this important statute.
The third reason why enacting Defense's proposed ESA
changes would be a huge mistake is because the current
approach, developing solutions at the local level rather than
relying on broad national exemptions, has really worked.
Integrated Natural Resource Management Plans have done well and
I do believe can provide a substitute for critical habitat on
military lands.
The challenge, however, is for the military and whether
they can adhere to specific criteria that would need to be
contained in the plan. One, this plan must contribute to the
conservation of the species under consideration. Two, it must
provide assurances, both financial and administrative, that the
conservation management strategies will be implemented. Three,
it must provide assurances, scientific assurances, adaptive
management requirements, and biological monitoring that the
conservation strategies will be effective.
If all of these criteria are met, and an appropriate
structured enforcement mechanism for INRMPs are in place, then
I believe the Services should exercise their flexibility under
the balancing provisions of the Act and exclude those military
lands covered by the plan from critical habitat designation.
There has been a lot of talk about INRMPs from a level of
generalness. I would recommend to the committee the Department
of Defense's Inspector General report and evaluation of
integrated plans that was done in October 2002. I think you
will find that there is a lot left to be worked out between the
Services and the Defense Department about the capability and
quality of the plans to date.
With the ongoing war in Iraq and continuing threats of
terrorism, no one can dismiss the importance of military
readiness. However, there is no justification for Defense to
retreat from their environmental stewardship commitments at
home. I know there are concerns and even conflicts between
training needs and sustainable natural resources conservation.
But Congress should pay close attention to those who are
crafting solutions at the installation level, and reject the
Pentagon's efforts to undermine these solutions with broad-
based exemptions to the Endangered Species Act.
Thank you, Mr. Chairman.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Ms. Clark.
Ms. Lindemann?
STATEMENT OF INGRID LINDEMANN, COUNCIL MEMBER, AURORA,
COLORADO, NATIONAL LEAGUE OF CITIES ADVISORY COUNCIL
Ms. Lindemann. Mr. Chairman. I am a Council Member in
Aurora, Colorado. A couple of people have mentioned the Lowry
Bombing Range. I wanted to tell you that my drinking water
reservoir is surrounded by the Lowry Bombing Range. So we do
have some specific concerns.
I also represent the National League of Cities. I am the
Advisory Council representative to the Energy, Environment, and
Natural Resources Committee for NLC. I have also spent most of
my adult life as a military spouse.
I am here today to testify on behalf of NLC and the 18,000
cities and towns across America. We are speaking to the Defense
Department's proposed changes in the environmental laws.
The concerns of the Nation's cities and towns are the
proposed exemptions from RCRA, Superfund, and the Clean Air
Act. I would like to make clear at the outset that the
municipal elected officials who comprise the National League of
Cities, support effective testing and training of the men and
women who serve in our Armed Forces, to ensure that they are
the best equipped and best prepared in the world. But we do not
believe it is necessary or appropriate to accomplish this goal
at the expense of nonmilitary citizens.
NLC's National Municipal Policy calls on Federal facilities
to comply with Federal and State environmental and health and
safety laws, and to be subject to the enforcement provisions of
such statutes. The ramifications of a blanket exemption for
military facilities and activities from such laws will be
serious and untenable at the local government level.
Again, I can speak from local experience. We have two
closed military installations within our city--the former Lowry
Air Force Base, and Fitzsimmons Army Medical Center. We have
dealt with these issues. In fact, we still have some land on
the former Lowry Air Force Base that is not yet cleaned. So I
understand the issues.
The Clean Air Act imposes health based air quality
standards. While there may be no legal requirements in the
amendments to either the State or local governments to seek
offsets to the air pollution caused by military activities, the
community is still going to be stuck. The air problems are
there and the health consequences for our people will be there.
The exemptions alone do not do us any good.
The exemptions from RCRA are equally problematical in part
of their impact on the appropriate disposal and/or cleanup of
hazardous waste. But equally important is the potential impact
on sources of drinking water. As I already mentioned to me, my
community is really affected.
It is estimated that there are 16 million acres of
transferred ranges around the country which are potentially
contaminated by unexploded ordnance. We believe that the
citizens and municipalities affected by such contamination
should not have their health compromised because of an exempted
defense installation, nor should they be required to bear the
burden of cleanup costs or the costs of finding alternative
sources of drinking water.
Many of the things that I was going to say have already
been mentioned. I would just like to say that we believe the
amendments proposed by the Defense Department are unnecessary.
It was stated by Secretary of Defense Paul Wolfowitz that in a
vast majority of cases we have demonstrated that we are able
both to comply with environmental requirements and conduct
necessary military training and testing.
I believe that the communities have always worked with our
military. They are very important to us both as to the defense
of our country and economically for the communities. I think we
should be able to work this out.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Thank you, Ms. Lindemann.
STATEMENT OF BONNER COHEN, SENIOR FELLOW, LEXINGTON INSTITUTE
Mr. Cohen. Thank you very much, Mr. Chairman. I, too, would
like to express my appreciation for your holding this hearing
on a matter of great interest and a matter of great seriousness
to all of us.
I would ask that my full statement be placed in the record
in its entirety.
Senator Inhofe. Without objection, so ordered.
Mr. Cohen. In recent years, primarily as a result of
litigation, a host of environmental laws designed to do such
noble things as protect endangered species and safeguard marine
mammals, have been applied to military installations throughout
the United States. There they have come increasingly in
conflict with the military's role to train soldier's for their
deadly business of battle.
Everyone in this room knows that the military has a unique
mission, one that requires the highest state of readiness to
prevent the needless loss of young lives. The Department of
Defense has come to Capitol Hill with a package of requests. It
has done so because it has a problem that needs to be
addressed. Failure to do so in a timely and sensible fashion
will put the lives of those in uniform at an unnecessary risk.
This need not be the case. By making a few narrowly focused
but vitally important clarifications to certain environmental
statutes, we can both protect the environment and protect the
lives of those who are serving in uniform.
Let me briefly mention two environmental laws that I think
exemplify the kinds of problems we are facing. One is the
Marine Mammal Protection Act which does not come under the
jurisdiction of this committee but which I think underscores
the nature of the problem.
The Marine Mammal Protection Act's definition of harassment
has been the source of confusion since it was included in the
1994 amendments to the statute. The statute defines harassment
in terms of annoyance or the potential to disturb. These are
vague standards which have been applied inconsistently and have
lead to increased confusion.
Both the Clinton and the Bush Administrations have sought
to refine that definition. But unfortunately efforts by the
National Marine Fishery Service to solve that problem have not
proved adequate.
In 2001, the Navy, the National Marine Fishery Service, and
the U.S. Fish and Wildlife Service, developed a definition of
harassment which all three agencies could accept. In line with
the recommendation put forward by the National Resource
Council, it defines harassment as applied to military readiness
activities to mean death, injury, and biological significant
effects, including disruption of migration, feeding, breeding,
and nursing.
Until the law is amendment to clarify the definition of
harassment, the Navy and the National Marine Fishery Service
will be subject to lawsuits on the application of the term.
Indeed, several groups have already announced their intention
to do so.
As a result, the Navy's low frequency active sonar, a key
defense against quiet diesel submarines launched by such states
as Iran, North Korea, and China, has been put on hold. Indeed
deployment of this vitally important weapons system has been
delayed by 6 years.
What is the nature of the environmental problem we are
looking at here? Worldwide all activities undertaken by the
Department of Defense account for fewer than 10 deaths or
injuries of marine mammals--and we are talking mostly about
whales--annually, as compared with 4,800 deaths annually
resulting from commercial fishing.
I think the Pentagon's request for clarification of this
law to apply a biologically sound definition to the word
``harassment'' is just the kind of thing that can continue to
provide for the defense of marine mammals and, at the same
time, allow the United States Navy to do the job it has been
assigned.
We now turn briefly to the Endangered Species Act. The
Department of Defense maintains over 25 million acres of land
and 425 installations in the United States to harbor over 300
endangered species. As Secretary Manson pointed out in the
first panel, the Department of Defense is, in fact, an
exemplary steward of lands under its jurisdiction.
Senator Inhofe. Dr. Cohen, let me interrupt for a moment.
Your time has expired but since I am the only one up here, I
will begin the questions and ask you to address the Endangered
Species Act.
Mr. Cohen. OK, fine. I will pick up right where I left off.
Unfortunately, it is the very superb nature of the
stewardship of the Department of Defense that has lead to the
problems that we are now encountering. Applying the endangered
species provisions pertaining to critical habitat on military
installation is leading to a wave of litigation that is
besetting the military.
You mentioned in your opening remarks--and you repeated
that several times during the course of today's hearing--that
in attempting to deal with the Endangered Species Act
provisions the military has been forced to have workarounds.
Workarounds, for instance, to protect the red-cockaded
woodpecker in Camp Lejune, North Carolina, the golden-cheeked
warbler in Fort Hood, Texas, and others.
Workarounds in training are one thing. Workarounds in the
real world of combat are quite something else. There are no
workarounds in Iraq. There are no workarounds in Afghanistan.
And there will be no workarounds in future conflicts where
American soldiers will be engaged.
The key problem here, Mr. Chairman, is the concept of
critical habitat as written under the Endangered Species Act.
The courts have held that critical habitat is intended for
species recovery, hence the designation of critical habitat is
a bar to any land use that diminishes the value of that land
for species recovery. Rather than military lands being used for
military purposes, once critical habitat has been designated,
those lands must be used for species recovery.
All of this, I think, Mr. Chairman, is unnecessary because
as Secretary Manson and others have pointed out, the existing
Integrated Natural Resource Management Plans, as required by
the Sikes Act, provide just the kind of protection for
endangered species that we think is appropriate.
Indeed, in many respects I think it is far superior to what
the Endangered Species Act does simply because it involves far
less convoluted regulations and is far more science based and
involves a cooperative effort between the Department of
Defense, the U.S. Fish and Wildlife Service, and State
environmental and wildlife agencies.
Senator Inhofe. Dr. Cohen, we are going to have to cut it
off right there. I appreciate your participation. We have
questions to ask other members.
Just for the record and so that others know, would you tell
us what your background is in the environment and your
credentials?
Mr. Cohen. Yes, I am a Senior Fellow at the Lexington
Institute in Arlington, Virginia. My Ph.D. is in international
relations. I have written extensively over the past 20 years on
both defense and environmental related issues. I was privileged
to testify before this hearing last summer on this same issue.
Senator Inhofe. Thank you very much, Dr. Cohen.
I will start off with Mr. Gaffney.
Mr. Gaffney, you have heard two of the witnesses state that
there is not a problem. What do you think about that?
Mr. Gaffney. I am frankly bemused about this, Mr. Chairman.
It seems to me that one does not have to go very far into the
actual military training regimen to discover that there are any
number of problems.
I think my colleague from the GAO has put it as delicately
as you can. It may not be adequately documented, but it smacks
you in the face as you are talking with the people who actually
have to run these training facilities, whether it is the
requirement that tracked vehicles, or other vehicles for that
matter, stay on roads. Or that people not dig foxholes in large
areas. Or that seals approaching the beach or other amphibious
forces use only certain channels and only in a line.
These are the sorts of things that are not just
workarounds. I believe, as the Defense Department can tell you,
can impose negative training on the forces that can be
prejudicial to their survival in combat.
To hear Senator Wyden, for example, talk about this thing
as being sort of a coming problem, maybe, reminds me of the old
story about the guy falling off a 20-story building and being
asked at the tenth floor how he is doing. Well, if he gives you
an honest answer, he is not doing very well. But he has not hit
the ground yet.
So the question here, Mr. Chairman, is: Are you going to
apply a common sense approach to this--as I think clearly you
are being encouraged to do from your colleague and chairman in
the Armed Services Committee. If you are, I think it is clear
that relief is needed. The question is: Is this the relief all
that is required? Is this all you can get through? I leave that
for you to judge.
But it certainly seems to me that at a minimum this sort of
redress is in order in light of the real world limitations we
are seeing on the training of our troops.
Senator Inhofe. Thank you, Mr. Gaffney.
Let me just share this with you. Ms. Lindemann and many of
you from your perspective cannot be aware of this because you
have not been exposed to it. But I served as the chairman of
the Readiness Committee of the Senate Armed Services Committee
for a number of years. We had our hearing yesterday before that
Subcommittee.
I can tell you. This is a crisis. Now, if you do not
believe that live-fire training is necessary and in your heart
you do not think that is really necessary, then No. 1, you
probably never served in the military service. No. 2, you have
not watched to see the drastic effects of losing our live
ranges. Someone mentioned Vieques. Now that is a done deal. We
allowed a bunch of terrorists to throw us off of property that
we owned so we can no longer train people there.
I mentioned the Ordora Range that four Americans lost their
lives. The accident report is very specific when it says they
lost their lives because they had inadequate live-fire
training. They had inert training. They other training. But
they did not have that.
Now, what domino effect that has on all the rest? We are
running out of places to train. I have been to Cape Wrath. They
are not going to let us stay there for an indefinite period of
time. They are already talking about cutting us off. Coppa de
Lauden in Southern Sardinia. They have the same problem there.
Okinawa.
That is why this is so serious. As I mentioned, this is a
life or death situation. I have to get that out and into the
record.
Ms. Clark, first of all, even though I disagree with you on
some things, I do thank you for coming back for more today. I
would like to ask you if you have had somewhat of a Scott
Ritter conversion. In your background you ran the Fish and
Wildlife Service. At that time you were not a fan of the
critical habitat designations.
First of all, I want to attribute to you a quote--and thank
you for doing that because it was not long ago that you made
this quote. This contradicts some of the other comments that
have been made.
You said, ``The DOD has been really terrific stewards of
the environment.'' Do you stand by that statement?
Ms. Clark. I do.
Senator Inhofe. During the time that you were heading up
the Fish and Wildlife Service, I think there were 250 species
that were designated as threatened or endangered under ESA, but
had made critical habitat designations of only two; is that
correct?
Ms. Clark. When I left the Agency as Director, there were
over 1,200 species listed as either threatened or endangered,
Mr. Chairman. I do not remember the number, but only a fraction
of those did have critical habitat designated. I would agree
with that statement.
Senator Inhofe. Yes, 9 percent of them did.
Ms. Clark. I do not have the exact numbers. I am sure those
facts are in the record. But I would say that a fraction of
them had critical habitat designated.
Senator Inhofe. All right. Is your position still the same
today in terms of INRMPs as it was when you were in the Fish
and Wildlife Service?
Ms. Clark. Mr. Chairman, if I could, I would try to connect
some dots here. There has been an incredible amount of
discussion about what I have said or not said, or what the
previous Administration did or did not do. So if you will
indulge me, I will try to connect dots.
Do I believe that Integrated Natural Resource Management
Plans can provide the needs for conservation of listed species?
Absolutely. But not all INRMPs are created equally. Again, I
would really suggest that the committee look at the Inspector
General's own report for the Defense Department that talks
about the quality of INRMPs--the coordination between the
Department and Defense and the Fish and Wildlife Service and
where there is some need for tightening up.
I signed a MOU with Defense during my time as Director that
tried to lay out those procedures. I think a lot of the
mechanisms are in place to work this out. I am not at all
judging that.
There is a lot of conversation about litigation and whether
or not critical habitat is good or bad or what the previous
Administration said. Is there a lot of frustration surrounding
the designation of critical habitat? Absolutely. I worked, as
did others in the previous Administration, with then late
Senator Chafee when he chaired this committee, to try to find
ways to revaluate and deal with the critical habitat issue.
It hardly matters what you do for species if you do not
take care of their habitat. But the issue surrounding critical
habitat is one of timing. It is one of substance. It is one of
resources. The Fish and Wildlife Service, under my time as
Director and even previous to that, made a conscious decision
to put more resources into adding species to the list--
protecting species that were on the brink of extension rather
than doing the habitat.
Senator Inhofe. I appreciate that. I was just getting back
to the designations and what had happened during the time that
you were there. I think you have answered that question.
Ms. Clark. OK.
Senator Inhofe. Mr. Benevento, I think we have three people
here from Colorado. You all totally agree with each other. It
is like this panel up here. You can love each other and
disagree.
Mr. Miller says there is no problem. What do you think?
Mr. Benevento. Well, first of all, I think I would rely
upon the military to sort of outline the scope of the problem
for me. I think they have done that. I trust their judgment.
But I think what is trying to happen here is that before there
is a problem, you want to try to resolve it. I think it can be
resolved through some careful draftings so that there are
limited exemptions for the military to do the training they
feel is necessary and still retain State and EPA authority for
cleanup once they are no longer using the property.
Senator Inhofe. Ms. Clark, I just want to ask you a
question. You made a statement that the readiness is better
than it has ever been before. I cannot really agree with that.
Our troops our better. They are well trained. But some of the
training has been sadly missing in terms of live-fire training
and in terms of integrated training as we had on the Island of
Vieques. There is no substitute for that. I have yet to find
one military expert that would disagree with my statement.
I can tell you that these young people want the very best
training. They deserve the very best training. But right now it
is not the very best training.
Dr. Cohen, the Marine Mammal Protection Act is not within
the purview of this committee but is within the purview of
legislation that we are considering from the Senate Armed
Services Committee. We are not sure where some of these are
going to be marked up.
But yesterday we had Dr. Ketten before us. Do you know who
that is?
Mr. Cohen. I know the name.
Senator Inhofe. She is certainly qualified. She made the
statement that there is there has been no proof at all of
significant harm from the use of sonar. This has been a subject
of one of these pieces of legislation. What do you think
professionally about that statement?
Mr. Cohen. Well, first of all, she is very highly qualified
to make that judgment. It is most unfortunate for the military
readiness of this Nation that as a result of the controversy
surrounding the protection of the military mammals as a result
of all this, this program, as I said earlier, has been delayed
for 6 years. These are the kinds of things that I do not think
we can allow to continue.
General John Keane, Vice Chief of Staff of the United
States Army testified on Capitol Hill recently and pointed out,
in referring to the Endangered Act, but it equally applies to
the Marine Mammal Protection Act, that the military is facing a
train wreck with respect to the issues that we are talking
about today. I think the task at hand is to decide whether we
are going to prevent that train wreck, or whether we are going
to wait until that train wreck happens before we do something.
Senator Inhofe. It is a good story, yes.
Mr. Gaffney. Mr. Chairman, may I just make a related point?
Senator Inhofe. Yes, go ahead.
Mr. Gaffney. Just on this question of delay, and the whole
issue that we have touched on several times in the course of
the hearings on litigation, there was a very, I think,
illuminating article in the New York Times back on August 28,
2001. I know you will remember this episode because of your
keen interest in missile defense.
This reported on an initiative taken by a number of
environmental groups to seek through a lawsuit to delay the
construction of a missile defense facility in Alaska. Senator
Murkowski was here earlier. I know she is familiar with this
story.
One of the participants, a plaintiff in the lawsuit was
Melanie Dutchen who was described in the New York Times as an
Anchorage activist with Greenpeace who said, ``Obviously the
hope of this litigation is that delay will lead to
cancellation.'' She went on to say, ``That is what we always
hope for in these suits.''
I believe this is sort of an instructive insight into why
the Defense Department is concerned, not only about the
circumstances that you personally observed, in terms of
limitations and impediments to training, but the train wreck
that is coming. It is not something that is coming up by
accident.
It is coming about, I believe, by people, at least some of
whom, have very little interest in the readiness of our
military. While they may dress up their current view as support
for our troops in Afghanistan and so on, it does come down, I
think, to an agenda that is quite hostile, at least in some
people's cases, to the military having the tools, the
technology, and the training that it needs to have to do the
job.
Senator Inhofe. I know that we have 1 minute to go in this
room. By unanimous consent we will have to vacate it at that
time.
I do have a couple of consent requests. One is that any
member be able to include extraneous material, reports, and
statements in the record, as well as our witnesses.
[Material to be supplied follows:]
Senator Inhofe. As you have the floor right now, Mr.
Gaffney, are you familiar with this sonar issue? Let me just
see if anyone on the panel disagrees of my interpretation of
it.
We could be put in a position right now, depending on how
certain litigation comes out, where our ships that depend on a
low frequency sonar to detect silent diesel engines on
submarines which are used by Iran, by China, and many of the
countries they trade with, where we could in reality have 5,000
American sailors on an aircraft carrier unable to use that
sonar to detect the presence of a diesel submarine just because
of the harm that all the experts say do not really take place
to the whales.
Are any of you familiar with that particular issue?
Mr. Gaffney. Mr. Chairman, I am somewhat familiar with it.
I think it is important to understand that when we talk about
the proliferation of weapons of mass destruction, one of the
things that is rarely included in that list is precisely the
one you are talking about--the proliferation of diesel
submarines. They are very silent, very capable, very stealthy
weapons that are now being proliferated by the Russians, by the
Chinese, and by others.
They do indeed have the ability, without improvements to
our antisubmarine warfare capabilities like the ones you are
talking about, to penetrate even the most sophisticated screens
we currently have, and get at ships like our aircraft carriers
with devastating effect.
Senator Inhofe. Mr. Gaffney and all of our witnesses, I
thank you very much. It is 12 o'clock o'clock. We are
adjourned.
[Whereupon, at 12 o'clock p.m., the committee was
adjourned, to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Benedict S. Cohen, Deputy General Counsel (Environment and
Installations), U.S. Department of Defense
introduction
Mr. Chairman and distinguished members of this committee, I
appreciate the opportunity to discuss with you the very important issue
of sustaining our test and training capabilities, and the legislative
proposal that the Administration has put forward in support of that
objective. In these remarks I would like particularly to address some
of the comments and criticisms offered concerning these legislative
proposals
Addressing Encroachment
We have only recently begun to realize that a broad array of
encroachment pressures at our operational ranges are increasingly
constraining our ability to conduct the testing and training that we
must do to maintain our technological superiority and combat readiness.
Given World events today, we know that our forces and our weaponry must
be more diverse and flexible than ever before. Unfortunately, this
comes at the same time that our ranges are under escalating demands to
sustain the diverse operations required today, and that will be
increasingly required in the future.
This current predicament has come about as a cumulative result of a
slow but steady process involving many factors. Because external
pressures are increasing, the adverse impacts to readiness are growing.
Yet future testing and training needs will only further exacerbate
these issues, as the speed and range of our weaponry and the number of
training scenarios increase in response to real-world situations our
forces will face when deployed. We must therefore begin to address
these issues in a much more comprehensive and systematic fashion and
understand that they will not be resolved overnight, but will require a
sustained effort.
Environmental Stewardship
Before I address our comprehensive strategy, let me first emphasize
our position concerning environmental stewardship. Congress has set
aside 25 million acres of land some 1.1 percent of the total land area
in the United States. These lands were entrusted to the Department of
Defense (DoD) to use efficiently and to care for properly. In executing
these responsibilities we are committed to more than just compliance
with the applicable laws and regulations. We are committed to
protecting, preserving, and, when required, restoring, and enhancing
the quality of the environment.
<bullet> We are investing in pollution prevention technologies to
minimize or reduce pollution in the first place. Cleanup is far more
costly than prevention.
<bullet> We are managing endangered and threatened species, and
all of our natural resources, through integrated natural resource
planning.
<bullet> We are cleaning up contamination from past practices on
our installations and are building a whole new program to address
unexploded ordnance on our closed, transferring, and transferred
ranges.
Balance
The American people have entrusted these 25 million acres to our
care. Yet, in many cases, these lands that were once ``in the middle of
nowhere'' are now surrounded by homes, industrial parks, retail malls,
and interstate highways.
On a daily basis our installation and range managers are confronted
with a myriad of challenges urban sprawl, noise, air quality, air
space, frequency spectrum, endangered species, marine mammals, and
unexploded ordnance. Incompatible development outside our fence-lines
is changing military flight paths for approaches and take-offs to
patterns that are not militarily realistic results that lead to
negative training and potential harm to our pilots. With over 300
threatened and endangered species on DoD lands, nearly every major
military installation and range has one or more endangered species, and
for many species, these DoD lands are often the last refuge. Critical
habitat designations for an ever increasing number of threatened or
endangered species limit our access to and use of thousands of acres at
many of our training and test ranges. The long-term prognosis is for
this problem to intensify as new species are continually added to the
threatened and endangered list.
Much too often these many encroachment challenges bring about
unintended consequences to our readiness mission. This issue of
encroachment is not going away. Nor is our responsibility to ``train as
we fight.''
2003 readiness and range preservation initiative (rrpi)
Overview
DoD's primary mission is maintaining our Nation's military
readiness, today and into the future. DoD is also fully committed to
high-quality environmental stewardship and the protection of natural
resources on its lands. However, expanding restrictions on training and
test ranges are limiting realistic preparations for combat and
therefore our ability to maintain the readiness of America's military
forces.
Last year, the Administration submitted to Congress an eight-
provision legislative package, the Readiness and Range Preservation
Initiative (RRPI). Congress enacted three of those provisions as part
of the National Defense Authorization Act for Fiscal Year 2003. Two of
the enacted provisions allow us to cooperate more effectively with
local and State governments, as well as private entities, to plan for
growth surrounding our training ranges by allowing us to work toward
preserving habitat for imperiled species and assuring development and
land uses that are compatible with our training and testing activities
on our installations.
Under the third provision, Congress provided the Department a
regulatory exemption under the Migratory Bird Treaty Act for the
incidental taking of migratory birds during military readiness
activities. We are grateful to Congress for these provisions, and
especially for addressing the serious readiness concerns raised by
recent judicial expansion of the prohibitions under the Migratory Bird
Treaty Act. I am pleased to inform this committee that as a direct
result of your legislation, Air Force B-1 and B-52 bombers, forward
deployed to Anderson Air Force Base, Guam, are performing dry run
training exercises over the Navy's Bombing Range at Farallon de
Medinilla in the Commonwealth of the Northern Mariana Islands.
Last year, Congress also began consideration of the other five
elements of our Readiness and Range Preservation Initiative. These five
proposals remain essential to range sustainment and are as important
this year as they were last year maybe more so. The five provisions
submitted this year reaffirm the principle that military lands, marine
areas, and airspace exist to ensure military preparedness, while
ensuring that the Department of Defense remains fully committed to its
stewardship responsibilities. These five remaining provisions:
<bullet> Authorize use of Integrated Natural Resource Management
Plans in appropriate circumstances as a substitute for critical habitat
designation;
<bullet> Reform obsolete and unscientific elements of the Marine
Mammal Protection Act, such as the definition of ``harassment,'' and
add a national security exemption to that statute;
<bullet> Modestly extend the allowable time for military readiness
activities like bed-down of new weapons systems to comply with Clean
Air Act; and
<bullet> Limit regulation of munitions on operational ranges under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) and Resource Conservation and Recovery Act (RCRA), if and
only if those munitions and their associated constituents remain there,
and only while the range remains operational.
Before discussing the specific elements of our proposal, I would
like to address some overarching issues. A consistent theme in
criticisms of our proposal is that it would bestow a sweeping or
blanket exemption for the Defense Department from the Nation's
environmental laws.\1\ No element of this allegation is accurate.
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\1\See, e.g., The New York Times, March 22, 2003 (``[T]he Defense
Department has asked Congress to approve a program that would broadly
exempt military bases and some operations from environmental
regulation''); statement of Philip Clapp, President, the National
Environmental Trust, March 5, 2003 (``The Bush Administration is
blatantly exploiting the war to exempt military bases all over the
country from environmental laws designed to protect public health'');
Julie Cart, Los Angeles Times, ``Military Seeks an Exemption of its
Own'', March 19, 2003 (``[T]he Pentagon is asking Congress to exempt
military installations from environmental laws protecting marine
mammals and endangered species and requiring the cleanup of potentially
toxic weapons sites''); Eric Pianin, The Washington Post,
``Environmental Exemptions Sought'' (``[T]he Bush Administration this
week asked Congress to exempt the Defense Department from a broad array
of environmental laws governing air pollution, toxic waste dumps,
endangered species, and marine mammals''); John Stanton, Congress Daily
AM, March 6, 2003 (``The Bush Administration's Defense Department
reauthorization proposal includes a raft of exemptions from
environmental laws long sought by the Pentagon, including endangered
species protections and air quality rules''); Natural Resources Defense
Council website, March 12, 2003 (``[t]he Department of Defense (DoD)
seeks immunity from five fundamental Federal laws''); CQ Weekly, March
8, 2003, ``The Pentagon's Exemption Wish List'' (``The Defense
Department has asked Congress to exempt military activities from a
range of environmental laws'').
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First, our initiative would apply only to military readiness
activities, not to closed ranges or ranges that close in the future,
and not to ``the routine operation of installation operating support
functions, such as administrative offices, military exchanges,
commissaries, water treatment facilities, storage, schools, housing,
motor pools nor the operation of industrial activities, or the
construction or demolition of such facilities.'' Our initiative thus is
not applicable to the Defense Department activities that have
traditionally been of greatest concern to state and Federal regulators.
It does address only uniquely military activities what DoD does that is
unlike any other governmental or private activity. DoD is, and will
remain, subject to precisely the same regulatory requirements as the
private sector when we perform the same types of activities as the
private sector. We seek alternative forms of regulation only for the
things we do that have no private-sector analogue: military readiness
activities.
Moreover, our initiative largely affects environmental regulations
that don't apply to the private sector or that disproportionately
impact DoD:
<bullet> Endangered Species Act ``critical habitat'' designation
has limited regulatory consequences on private lands, but can have
crippling legal consequences for military bases.
<bullet> Under the Marine Mammal Protection Act, the private
sector's Incidental Take Reduction Plans give commercial fisheries the
flexibility to take significant numbers of marine mammal each year, but
are unavailable to DoD whose critical defense activities are being
halted despite far fewer marine mammal deaths or injuries a year.
<bullet> The Clean Air Act's ``conformity'' requirement applies
only to Federal agencies, not the private sector.
Our proposals therefore are of the same nature as the relief
Congress afforded us last year under the Migratory Bird Treaty Act,
which environmental groups are unable to enforce against private
parties but, as a result of a 2000 circuit court decision were able and
willing to enforce, in wartime, against vital military readiness
activities of the Department of Defense.
Nor does our initiative ``exempt'' even our readiness activities
from the environmental laws; rather, it clarifies and confirms existing
regulatory policies that recognize the unique nature of our activities.
It codifies and extends EPA's existing Military Munitions Rule;
confirms the prior Administration's policy on Integrated Natural
Resource Management Plans and critical habitat; codifies the prior
Administration's policy on ``harassment'' under the Marine Mammal
Protection Act; ratifies longstanding state and Federal policy
concerning regulation under RCRA and CERCLA of our operational ranges;
and gives states and DoD temporary flexibility under the Clean Air Act.
Our proposals are, again, of the same nature as the relief Congress
provided us under the Migratory Bird Treaty Act last year, which
codified the prior Administration's position on DoD's obligations under
the Migratory Bird Treaty Act.
Ironically, the alternative proposed by many of our critics
invocation of existing statutory emergency authority would fully exempt
DoD from the waived statutory requirements for however long the
exemption lasted, a more far-reaching solution than the alternative
forms of regulation we propose.
Accordingly, our proposals are neither sweeping nor exemptive; to
the contrary, it is our critics who urge us to rely on wholesale,
repeated use of emergency exemptions for routine, ongoing readiness
activities that could easily be accommodated by minor clarifications
and changes to existing law.
Existing emergency authorities
As noted above, many of our critics state that existing exemptions
in the environmental laws and the consultative process in 10 U.S.C.
2014 render the Defense Department's initiative unnecessary.
Although existing exemptions are a valuable hedge against
unexpected future emergencies, they cannot provide the legal basis for
the Nation's everyday military readiness activities.
<bullet> The Marine Mammal Protection Act, like the Migratory Bird
Treaty Act the Congress amended last year, has no national security
exemption.
<bullet> 10 U.S.C.014, which allows a delay of at most 5 days in
regulatory actions significantly affecting military readiness, is a
valuable insurance policy for certain circumstances, but allows
insufficient time to resolve disputes of any complexity. The Marine
Corps' negotiations with the Fish and Wildlife Service over excluding
portions of Camp Pendleton from designation as critical habitat took
months. More to the point, Section 2014 merely codifies the inherent
ability of cabinet members to consult with each other and appeal to the
President. Since it does not address the underlying statutes giving
rise to the dispute, it does nothing for readiness in circumstances
where the underlying statute itself not an agency's exercise of
discretion is the source of the readiness problem. This is particularly
relevant to our RRPI proposal because none of the five amendments we
propose have been occasioned by the actions of state or Federal
regulators. Four of the five proposed amendments (RCRA, CERCLA, MMPA,
and ESA), like the MBTA amendment Congress passed last year, were
occasioned by private litigants seeking to overturn Federal regulatory
policy and compel Federal regulators to impose crippling restrictions
on our readiness activities. The fifth, our Clean Air Act amendment,
was proposed because DoD and EPA concluded that the Act's ``general
conformity'' provision unnecessarily restricted the flexibility of DoD,
state, and Federal regulators to accommodate military readiness
activities into applicable air pollution control schemes. Section 2014,
therefore, although useful in some circumstances, would be of no use in
addressing the critical readiness issues that our five RRPI initiatives
address.
<bullet> Most of the environmental statutes with emergency
exemptions clearly envisage that they will be used in rare
circumstances, as a last resort, and only for brief periods.
<bullet> Under these statutes, the decision to grant an exemption
is vested in the President, under the highest possible standard: ``the
paramount interest of the United States,'' a standard understood to
involve exceptionally grave threats to national survival. The
exemptions are also usually limited to renewable periods of a year (or
in some cases as much as 3 years for certain requirements).
<bullet> The ESA's section 7(j) exemption process, which differs
significantly from typical emergency exemptions, allows the Secretary
of Defense to direct the Endangered Species Committee to exempt agency
actions in the interest of national security. However, the Endangered
Species Committee process has given rise to procedural litigation in
the past, potentially limiting its usefulness especially in exigent
circumstances. In addition, because it applies only to agency actions
rather than to ranges themselves, any exemption secured by the
Department would be of limited duration and benefit: because military
testing and training evolve continuously, such an exemption would lose
its usefulness over time as the nature of DoD actions on the range
evolved.
<bullet> The exemption authorities do not work well in addressing
those degradations in readiness that result from the cumulative,
incremental effects of many different regulatory requirements and
actions over time (as opposed to a single major action).
<bullet> Moreover, readiness is maintained by thousands of
discrete test and training activities at hundreds of locations. Many of
these are being adversely affected by environmental provisions.
Maintaining military readiness through use of emergency exemptions
would therefore involve issuing and renewing scores or even hundreds of
Presidential certifications annually.
<bullet> And although a discrete activity (e.g., a particular
carrier battle group exercise) might only rarely rise to the
extraordinary level of a ``paramount national interest,'' it is clearly
intolerable to allow all activities that do not individually rise to
that level to be compromised or ended by overregulation.
<bullet> Finally, to allow continued unchecked degradation of
readiness until an external event like Pearl Harbor or September 11
caused the President to invoke the exemption would mean that our
military forces would go into battle having received degraded training,
with weapons that had received degraded testing and evaluation. Only
the testing and training that occurred after the emergency exemption
was granted would be fully realistic and effective.
The Defense Department believes that it is unacceptable as a matter
of public policy for indispensable readiness activities to require
repeated invocation of emergency authority particularly when narrow
clarifications of the underlying regulatory statutes would enable both
essential readiness activities and the protection of the environment to
continue. Congress would never tolerate a situation in which another
activity vital to the Nation, like the practice of medicine, was only
permitted to go forward through the repeated use of emergency
exemptions.
That having been said, I should make clear that the Department of
Defense is in no way philosophically opposed to the use of national
security waivers or exemptions where necessary. We believe that every
environmental statute should have a well-crafted exemption, as an
insurance policy, though we continue to hope that we will seldom be
required to have recourse to them. In this regard, I would like to
address the March 7, 2003 Memorandum from Deputy Secretary Wolfowitz to
the Secretaries of the Military Departments concerning the process by
which the Department will evaluate the use of existing exemptions under
Federal environmental laws. As DoD has repeatedly testified, our
efforts to address encroachment are multifaceted, and our RRPI
legislative proposals are only one element of them. Other aspects of
encroachment will be addressed through collaborative efforts with our
state and Federal regulators, such as the drafting of the MBTA
regulation mandated by Congress last year. Still others can be
addressed through improvements in the internal policies and processes
of the Defense Department itself.
The Deputy Secretary's memorandum falls into this last category
improvements in our own internal processes. It addresses a critical
shortcoming in our ability to efficiently and thoughtfully consider the
use of these existing exemption authorities: the absence of an
articulated process for developing and considering proposed exemptions.
Accordingly, Dr, Wolfowitz directed the military departments to develop
procedures to ensure timely evaluation of the full range of relevant
considerations. Importantly, the Deputy Secretary required that
proposals for exemption include, among other things, specific,
quantified evidence of the impact of the regulation proposed for
exemption on readiness; an explanation of the reason the readiness
activity cannot be modified, relocated, or rescheduled to avoid
conflict with the regulation without compromising readiness; and the
reasonably practical efforts available to mitigate the environmental
consequences of proceeding with the training or testing activity in
question. These substantial evidentiary requirements are hardly an
invitation for extensive use of exemption authority, and they certainly
belie claims that the Defense Department has issued a call to the field
to produce candidates for exemptions. As the memorandum states:
``This memorandum is not intended to signal a diminished commitment
to the environmental programs that ensure that the natural
resources entrusted to our care will remain healthy and available
for use by future generations. Any decision to seek a statutory
exemption will remain a high hurdle.''
The memorandum itself is a direct result of the response to our
legislative initiative last year. The most frequently heard comment on
our RRPI proposal at that time was that the Defense Department was
seeking new legislative flexibility without having explored the
flexibility inherent in existing law.\2\ Although our review of our
proposals has persuaded us that existing emergency exemptions cannot
adequately substitute for them, for the reasons I have outlined
previously, we did take this criticism to heart. We responded not by
seeking a specific test case to provide an easy answer to our critics,
but rather by attempting to articulate both a process and criteria to
guide our use of these authorities. The memorandum has been in
development for almost a year, and was painstakingly reviewed at every
level of the Department. I can assure that no one in the Department of
Defense will lightly pursue or endorse the use of these extraordinary
measures.
---------------------------------------------------------------------------
\2\See, e.g., testimony of the Hon. Jamie Rappaport Clark before
the Senate Environment and Public Works Committee Hearing on S. 2225
and the Readiness and Range Preservation Initiative, July 9, 2002
(``The environmental laws targeted by this Administration already
contain site-specific exemption and permitting procedures that enable
the Defense Department to achieve its readiness objectives while still
taking the environment into account''); Jeffrey Ruch, Public Employees
for Environmental Responsibility, C-SPAN interview, January 16, 2003
(``Virtually all these environmental laws have national security
exemptions These national security exemptions allow the Pentagon to
suspend the application of environmental laws, if they can articulate a
reason They should actually spend some time using the leeway that's
allowed in existing law, before suspending them.''); Gordon Lubold,
Marine Corps Times, ``Endangered Species vs. Military Training''
(``National security waivers are the appropriate way for the Pentagon
to get the flexibility it needs to do training, he said [quoting
Michael Jasny, senior policy analyst with the Natural resources Defense
Council]'').
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Specific Proposals
This year's proposals do include some clarifications and
modifications based on events since last year. Of the five, the
Endangered Species Act (ESA) and Clean Air Act provisions are
unchanged. Let me address the changed provisions first.
RCRA and CERCLA
The legislation would codify and confirm the longstanding
regulatory policy of EPA and every state concerning regulation of
munitions use on operational ranges under RCRA and CERCLA. It would
confirm that military munitions are subject to EPA's 1997 Military
Munitions Rule while on range, and that cleanup of operational ranges
is not required so long as material stays on the range. If such
material moves off range, it still must be addressed promptly under
existing environmental laws. Moreover, if munitions constituents cause
an imminent and substantial endangerment on range, EPA will retain its
current authority to address it on range under CERCLA section 106. (Our
legislation explicitly reaffirms EPA's section 106 authority.) The
legislation similarly does not modify the overlapping protections of
the Safe Drinking Water Act, NEPA, and the ESA against environmentally
harmful activities at operational military bases. The legislation has
no effect whatsoever on DoD's cleanup obligations under RCRA or CERCLA
at Formerly Used Defense Sites, closed ranges, ranges that close in the
future, or waste management practices involving munitions even on
operational ranges (such as so-called OB/OD activities).\3\
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\3\In this context I should mention that for those areas, other
than operational ranges, which require action, the Department has
established, with representatives from the US Environmental Protection
Agency, Federal Land Managers, States, and Tribes, a Munitions Response
Committee. The primary goal of the committee is to define a
collaborative decisionmaking process that ensures each party's rights
and respective responsibilities are respected. This approach will allow
coordination and, where appropriate, integration of the applicable
statutory and administrative authorities under Federal and state
environmental laws. This approach ensures that action will be taken
within an agreed upon approach when operational ranges are closed in
the future.
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The core of our concern is to protect against litigation the
longstanding, uniform regulatory policy that (1) use of munitions for
testing and training on an operational range is not a waste management
activity or the trigger for cleanup requirements, and (2) that the
appropriate trigger for DoD to address the environmental consequences
of such routine test and training uses involving discharge of munitions
is (a) when the range closes, (b) when munitions or their elements
migrate or threaten to migrate off-range, or (c) when munitions or
their elements create an imminent and substantial endangerment on-
range. The legislation clarifies and confirms the applicability of
EPA's CERCLA section 106 authority to on-range threats to health or the
environment, and likewise clarifies and confirms the applicability of
both RCRA and CERCLA to migration of munitions constituents off-range.
I should note, however, that in one respect, our RCRA and CERCLA
proposals do extend rather than codify existing policy. Under existing
law, in the event of off-range migration, DoD could potentially be
subject to overlapping or even conflicting cleanup directives secured
by different regulators or private parties under RCRA and CERCLA. To
avoid this risk, our proposal integrates and rationalizes the
applicability of the two statutes to off-range migration by providing
that should such migration occur, DoD and EPA will have the opportunity
to address it under CERCLA sections 104 and 106, respectively, but that
should they fail to do so RCRA authorities will apply, including but
not limited to citizen suits under section 7002 and EPA's emergency
authority under section 7003. This provision is analogous to 40 C.F.R.
266.202(d) of the Military Munitions Rule, which provides that a round
that lands off-range is not a solid waste for purposes of RCRA
corrective action or emergency authorities ``if [it] is promptly
rendered safe and/or retrieved,'' but otherwise is subject to such
authorities.
This legislation is needed because of RCRA's broad definition of
``solid waste,'' and because states possess broad authority to adopt
more stringent RCRA regulations than EPA (enforceable both by the
states and by environmental plaintiffs). EPA therefore has quite
limited ability to afford DoD regulatory relief under RCRA. Similarly,
the broad statutory definition of ``release'' under CERCLA may also
limit EPA's ability to afford DoD regulatory relief. And the
President's site-specific, annually renewable waiver (under a paramount
national interest standard in RCRA and a national security standard in
CERCLA) is inapt for the reasons discussed above.
Although its environmental impacts are negligible, the effect of
this proposal on readiness could be profound. Environmental plaintiffs
have filed suit at Fort Richardson, Alaska, alleging violations of
CERCLA and Alaska anti-pollution law applicable under RCRA. If
successful, plaintiffs could potentially force remediation of the Eagle
River Flats impact area and preclude live-fire training at the only
mortar and artillery impact area at Fort Richardson and dramatically
degrading readiness of the 172d Infantry Brigade, the largest infantry
brigade in the Army. If successful, the Fort Richardson litigation
could set a precedent fundamentally affecting military training and
testing at virtually every test and training range.
Our proposed amendments to RCRA and CERCLA have been slightly
revised to make it absolutely unambiguous that they do not affect our
cleanup obligations on closed ranges. Last year some misinterpreted our
proposal to apply to closed ranges. We included new language to clarify
that our proposals have no effect whatsoever on our legal obligations
with respect to clean up of closed bases, or of bases that close in the
future. If there is a way to make this point even clearer, we would be
delighted to do so.\4\
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\4\In this regard, EPA and DoD have recently developed a further
language change designed to underscore this point, which we would be
happy to provide to the committee.
---------------------------------------------------------------------------
In addition, we have revised a provision in last year's bill
designed to ensure that our proposal did not alter EPA's existing
protective authority in section 106 of the Superfund law. This year's
version is therefore even clearer that, notwithstanding anything in our
proposal, EPA retains the authority to take any action necessary to
prevent endangerment of public health or the environment in the event
such risk arose as a result of use of munitions on an operational
range.
Contractor and Off-Range Liability. Finally, I'm pleased to inform
the committee that EPA and DoD have further changes to suggest to the
proposal to address concerns raised by some earlier testimony and
comments on our proposals. The language DoD submitted to Congress
largely tracks existing exclusions in the Military Munitions Rule,
including 40 C.F.R. 266.202(a)(1)(i) and (ii), which provide that
munitions used for training military personnel or explosives and
munitions emergency response specialists, or for research, development,
test, and evaluation (RDT&E) of military munitions, are not solid waste
for purposes of RCRA. In the existing Military Munitions Rule, these
exclusions are not limited to munitions training or RDT&E activities
that occur on operational ranges; in fact, they apply to such
activities anywhere they occur, on or off such ranges. Some
commentators have suggested that DoD, by codifying these aspects of the
Military Munitions Rule, was seeking to exclude itself and its
contractors from RCRA regulation for off-range activities.
As I have mentioned, the Military Munitions Rule adopted by EPA
under the prior Administration already fully excludes those activities
(though not the resulting waste stream generated by them) from RCRA
regulation; DoD supported that policy in 1997 and continues to support
it today. Nevertheless, our Readiness and Range Preservation Initiative
is not intended to codify all the circumstances in which munitions use
is properly excluded from RCRA regulation. Rather, it is intended to
address one emerging threat to our operational ranges. Accordingly, EPA
and DoD have identified two language changes that we believe will set
this issue to rest.
First, in section 2019(a)(2)(A) and (B), the two provisions drawn
from the Military Munitions Rule's exemption of munitions training and
RDT&E, we would support the addition of the words ``on an operational
range'' at the end of each section, thereby clarifying that these
provisions, unlike their analogues in the Military Munitions Rule, do
not apply to such activities outside operational ranges.\5\ Second, the
Department submitted as a separate part of our proposed Defense
authorization a number of general definitions, including a definition
of ``operational range.'' In that proposed definition, it was
explicitly stated that inactive operational ranges must be under the
jurisdiction, custody, or control of the Department, but this was not
explicitly stated for active operational ranges. To address any
possible concern that as a result of this definition the Department's
RCRA/CERCLA RRPI provision might be read to apply to ``active ranges''
controlled by our contractors, EPA and DOD would fully support a change
that clarified that the requirement of DoD jurisdiction, custody, or
control applied to both active and inactive ranges.\6\
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\5\The new provisions would thus read: ``(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) on an operational
range; (B) are used in research, development, testing, and evaluation
of military munitions, weapons, or weapon systems on an operational
range;''.
\6\The provision would thus read: ``The term `operational range'
means a range that is under the jurisdiction, custody, or control of
the Secretary concerned and (A) is used for range activities, or (B) is
not currently being used for range activities, but that is still
considered by the Secretary concerned to be a range and has not been
put to a new use that is incompatible with range activities.''
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DoD is pleased to have been able to address some of the concerns
that we have heard concerning this proposal and stands ready to clarify
our intent as necessary as Congress continues its consideration of
these proposals.
Perchlorate and RRPI. I would also like to take the opportunity to
address some other concerns about these provisions that in DoD's view
do not warrant revision of the legislation. First, some observers have
expressed concern that our RRPI legislation could intentionally or
unintentionally affect our financial liability or cleanup
responsibilities with respect to perchlorate. Nothing in either RRPI or
our defense authorization as a whole would affect our financial,
cleanup, or operational obligations with respect to perchlorate.
<bullet> As discussed above, nothing in our legislative program
alters the financial, cleanup, or operational responsibilities of our
contractors, or of DoD with respect to our contractors, either
regarding perchlorate or any other chemical.
<bullet> Nothing in our legislative program alters our financial,
cleanup, or operational responsibilities with respect to our closed
ranges, Formerly Used Defense Sites, or ranges that may close in the
future, either regarding perchlorate or any other chemical.
<bullet> Nothing in our legislative program affects the Safe
Drinking Water Act, which provides that EPA ``upon receipt of
information that a contaminant which is present or is likely to enter a
public water system or an underground source of drinking water may
present an imminent and substantial endangerment to the health of
persons may take such actions as [EPA] may deem necessary to protect
the health of such persons,'' enforceable by civil penalties of up to
$15,000 a day. 42 U.S.C. 300i(a). EPA used this Safe Drinking Water
order authority to impose a cease-fire on the Massachusetts Military
Reservation to address groundwater contamination from perchlorate, and
nothing in our proposal would alter the events that have played out
there. Because this Safe Drinking Water Act authority is not limited to
CERCLA ``releases'' or off-range migration, it clearly empowers EPA to
issue orders to address endangerment either on-range or off-range, and
to address possible contamination before it migrates off-range.
<bullet> DoD is also committed to being proactive in addressing
perchlorate. On November 13, 2002 DoD issued a perchlorate assessment
policy authorizing assessment ``if there is a reasonable basis to
suspect both a potential presence of perchlorate and a pathway on
installation[s] where it could threaten public health.''
Delayed Response to Spreading Contamination. Some commentators have
expressed concern that our RRPI proposal would create a legal regime
that barred regulators from addressing contamination until it reached
the fence lines of our ranges, or that it at least reflects a DoD
policy to defer any action until that point. As the above discussion
makes clear, EPA's continuing authority under the Safe Drinking Water
Act to prevent likely contamination clearly empowers the Agency to act
before contamination leaves DoD ranges. In addition, nothing in our
legislative program affects EPA's authority under Section 106 of CERCLA
to ``issu[e] such orders as may be necessary to protect public health
and welfare and the environment'' whenever it ``determines that 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 from a facility.'' Such orders are judicially
enforceable. Because EPA's sweeping section 106 authority covers not
only actual but ``threatened release,'' our proposal would therefore
clearly enable EPA to address groundwater contamination before the
contamination leaves DoD land which is also the objective of DoD's
existing management policies. Section 106 would also clearly cover on-
range threats. Finally, States and citizens exercising RCRA authority
under our RRPI RCRA provision addressing off-range migration could
potentially use that authority to enforce on-range measures necessary
to redress the migration where appropriate. Under RRPI, our range fence
lines would not become Chinese walls excluding regulatory action either
before or after off-range migration occurred. Finally, it is most
definitely not DoD policy to defer action on groundwater contamination
until it reaches the fence lines of our operational ranges, when it
will be far more difficult and expensive to address.
In addition, I should mention the recently completed DoD Directive,
``Sustainment of Ranges and Operating Areas'', which was signed by the
Deputy Secretary of Defense for immediate implementation on January 10,
2003. This DoDD was developed as part of our overall comprehensive
range sustainment strategy.
The Deputy Secretary of Defense tasked the development of this new
directive with this guidance:
'' The Directive should assign responsibilities for range
sustainability and require the Services to issue implementing
directives, which specifically focus on long-term sustainability.
Further, it should embrace `working outside the fence' as an
overall management approach, and emphasize the importance of
partnerships with regulators, the public, and land owners.''
In fulfilling these requirements, this Directive provides capstone-
level guidance to DoD and the Services on overall policy for test and
training range sustainment planning, management, coordination and
outreach. As a Capstone, it is intended to serve as a guide in the
development or revision of other directives with applicability to range
sustainment.
Most importantly, the directive provides that range planning and
management will identify range requirements for both training and
testing, identify encroachment concerns and other inhibiting factors to
the ranges, and develop responsive plans to address conflicts. It also
calls for functionally integrated decisionmaking operator,
environmental, legal and other installation/range offices or staffs.
Coordination and outreach on sustainment issues that include off-range
stakeholders is also directed, with a goal of promoting understanding
of range management and use decisions and working with outside groups
to consider their concerns and work cooperative to address shared
concerns.
Active vs. Inactive Ranges. Some commentators have criticized the
application of our RCRA and CERCLA provisions to both the active and
the inactive categories of operational ranges, suggesting that it will
motivate DoD to retain ranges that are never used and should be closed
as nominally ``inactive'' ranges to defer cleanup costs. This policy
question was addressed in section 266.201 of EPA's 1997 Military
Munitions Rule, which established a three-part test designed to prevent
such manipulation: ``inactive ranges'' must be ``still under military
control and considered by the military to be potential range area, and
[must] not [have] been put to a new use that is incompatible with range
activities.'' This test is codified in the definition of ``operational
range'' that the Department is proposing, as discussed above.
We believe that this test will appropriately limit DoD's discretion
in characterizing ranges as ``inactive'' but still ``operational,''
while not providing DoD with excessive incentives to close inactive
ranges. Our range sustainment policy initiative is based on the
recognition that DoD will not easily acquire new range lands in the
future, even though modern precision munitions and weapons systems,
with their longer ranges, require increasing training areas. Existing
range lands must therefore be appropriately but not excessively
husbanded for future needs. DoD believes that the policy embodied in
the Military Munitions Rule and our proposed ``operational range''
definition strikes the correct balance.
I should also mention that DoD is taking action, in response to
congressional direction, to make visible our range inventory. This is
being done in two ways. First, in response to requirements in Section
311 of the fiscal year 2002 National Defense Authorization Act, DoD
will make publicly available by May 31st of this year an initial
inventory of former ranges and other areas which may require a
munitions response action. We are now working with EPA, the Federal
Land Managers, the States, and affected Tribes to ensure this list is
as comprehensive as possible. This list will include Formerly Used
Defense Sites, BRAC installations, and also, most important to the
discussion today, a list of closed ranges on active installations. And
second, in response to the requirements of Section 366 of the fiscal
year 2003 National Defense Authorization Act, DoD is developing a list
of operational ranges which will include a delineation of active and
inactive ranges. Together, these lists will enable an accounting of all
areas for which we are concerned about in this discussion.
Marine Mammal Protection Act
Although I realize this committee is not centrally concerned with
the Marine Mammal Protection Act (MMPA), I would like to take a moment
to discuss it for purposes of completeness. This year's MMPA proposal
includes some new provisions. This year's proposal, like last year's,
would amend the term ``harassment'' in the MMPA, which currently
focuses on the mere ``potential'' to injure or disturb marine mammals.
Our initiative adopts verbatim a reform proposal developed during
the prior Administration by the Commerce, Interior, and Defense
Departments and applies it to military readiness activities. That
proposal espoused a recommendation by the National Research Council
(NRC) that the currently overbroad definition of ``harassment'' of
marine mammals which includes ``annoyance'' or ``potential to disturb''
be focused on biologically significant effects. As recently as 1999,
the National Marine Fisheries Service (NMFS) asserted that under the
sweeping language of the existing statutory definition harassment ``is
presumed to occur when marine mammals react to the generated sounds or
visual cues'' in other words, whenever a marine mammal notices and
reacts to an activity, no matter how transient or benign the reaction.
As the NRC study found, ``If [this] interpretation of the law for
level--harassment (detectable changes in behavior) were applied to
shipping as strenuously as it is applied to scientific and naval
activities, the result would be crippling regulation of nearly every
motorized vessel operating in U.S. waters.''
Under the prior Administration, NMFS subsequently began applying
the NRC's more scientific, effects-based definition. But environmental
groups have challenged this regulatory construction as inconsistent
with the statute. As you may know, the Navy and the National Oceanic
and Atmospheric Administration suffered an important setback last year
involving a vital anti-submarine warfare sensor SURTASS LFA, a towed
array emitting low-frequency sonar that is critical in detecting ultra-
quiet diesel-electric submarines while they are still at a safe
distance from our vessels. In the SURTASS LFA litigation environmental
groups successfully challenged the new policy as inconsistent with the
sweeping statutory standard, putting at risk NMFS' regulatory policy,
clearly substantiating the need to clarify the existing statutory
definition of harassment that we identified in our legislative package
last year.
Second, this year's language will address new concerns resulting
from the District Court's ruling in the SURTASS LFA case, which
highlighted a number of structural deficiencies in application of the
MMPA to military readiness activities that require legislative change.
In addition to ruling against NOAA's regulatory interpretation of
``harassment,'' the Court ruled against NOAA's longstanding application
of the MMPA's ``small numbers'' requirement. The National Research
Council has recommended that this provision be deleted as not
scientifically based. Elimination of this requirement, which Congress
has previously acknowledged is ``incapable of quantification,'' would
instead appropriately focus impact determinations on the scientifically
based ``negligible impacts'' standard. In addition, the litigation
highlighted the difficulty in identifying a ``specific geographical
region'' for permits applied to military readiness activities. Given
the migratory nature of marine mammals, varying biological and
bathymetric features in the environment they occupy, and the worldwide
nature of naval operations, this requirement is extremely difficulty to
define as a legal matter. Our proposal would have no effect on NOAA's
responsibility to satisfy itself that our activities would have
``negligible impacts'' a finding that necessarily entails full
consideration of the location and timing of our readiness activities.
It would, however, prevent critical readiness activities that have been
validated by such scientific review from being impeded by technical
legal issues of defining ``regions''.
The last change we are proposing, a national security exemption
process, also derives from feedback the Defense Department received
from environmental advocates last year after we submitted our proposal,
as I discussed above. Although DoD continues to believe that
predicating essential military training, testing, and operations on
repeated invocations of emergency authority is unacceptable as a matter
of public policy, we do believe that every environmental statute should
have such authority as an insurance policy. The comments we received
last year highlighted the fact that the MMPA does not currently contain
such emergency authority, so this year's submission does include a
waiver mechanism. Like the Endangered Species Act, our proposal would
allow the Secretary of Defense, after conferring with the Secretaries
of Commerce or Interior, as appropriate, to waive MMPA provisions for
actions or categories of actions when required by national security.
This provision is not a substitute for the other clarifications we have
proposed to the MMPA, but rather a failsafe mechanism in the event of
emergency.
The only substantive changes are those described above. The reason
that the text is so much more extensive than last year's version is
that last year's version was drafted as a freestanding part of title 10
the Defense Department title rather than an amendment to the text of
the MMPA itself. This year, because we were making several changes, we
concluded that as a drafting matter we should include our changes in
the MMPA itself. That necessitated a lot more language, largely just
reciting existing MMPA language that we are not otherwise modifying.
The environmental impacts of our proposed reforms would be minimal.
Although our initiative would exclude transient, biologically
insignificant effects from regulation, the MMPA would remain in full
effect for biologically significant effects not only death or injury
but also disruption of significant activities. The Defense Department
could neither harm marine mammals nor disrupt their biologically
significant activities without obtaining authorization from FWS or
NMFS, as appropriate.
Nor does our initiative depart from the precautionary premise of
the MMPA. The Precautionary Principle holds that regulators should
proceed conservatively in the face of scientific uncertainty over
environmental effects. But our initiative embodies a conservative,
science-based approach validated by the National Research Council. By
defining as ``harassment'' any readiness activities that ``injure or
have the significant potential to injure,'' or ``disturb or are likely
to disturb,'' our initiative includes a margin of safety fully
consistent with the Precautionary Principle. The alternative is the
existing grossly overbroad, unscientific definition of harassment,
which sweeps in any activity having the ``potential to disturb.'' As
the National Research Council found, such sweeping overbreadth is
unscientific and not mandated by the Precautionary Principle.
Enforcement, mitigation, and monitoring, with exactly the same
degree of transparency, will continue unchanged for naval activities
likely to disturb biologically significant activities. Indeed, during
the prior Administration's development of our proposed language, both
the Interior Department and the Justice Department expressed the view
that the vagueness of the existing definition of harassment was making
it difficult to enforce, and that the proposed language would
facilitate prosecution of violations. The current enforcement,
mitigation and monitoring affected by our initiative would be that
directed toward biologically insignificant effects i.e., that which by
definition does not contribute to marine mammal welfare. Nor will our
initiative engender more debate: it will merely shift debate to where
it should be, over biologically significant activities not over the
nebulous ``potential to disturb'' standard rejected by the prior
Administration, NMFS, and the National Research Council.
The Defense Department already exercises extraordinary care in its
maritime programs: all DoD activities worldwide result in fewer than 10
deaths or injuries annually (as opposed to 4800 deaths annually from
commercial fishing activities). And DoD currently funds much of the
most significant research on marine mammals, and will continue this
research in future.
Although the environmental effects of our MMPA reforms will be
negligible, their readiness implications are profound. Application of
the current hair-trigger definition of ``harassment'' has profoundly
affected both vital R&D efforts and training. Navy operations are
expeditionary in nature, which means world events often require
planning exercises on short notice. To date, the Navy has been able to
avoid the delay and burden of applying for a take permit only by
curtailing and/or dumbing down training and research/testing. For 6
years, the Navy has been working on research to develop a suite of new
sensors and tactics (the Littoral Advanced Warfare Development Program,
or LWAD) to reduce the threat to the fleet posed by ultraquiet diesel
submarines operating in the littorals and shallow seas like the Persian
Gulf, the Straits of Hormuz, the South China Sea, and the Taiwan
Strait. These submarines are widely distributed in the world's navies,
including ``Axis of Evil'' countries such as Iran and North Korea and
potentially hostile great powers. In the 6 years that the program has
operated, over 75 percent of the tests have been impacted by
environmental considerations. In the last 3 years, 9 of 10 tests have
been affected. One was canceled entirely, and 17 different projects
have been scaled back.
Endangered Species Act
Our Endangered Species Act provision is unchanged from last year.
The legislation would confirm the prior Administration's decision that
an Integrated Natural Resources Management Plan (INRMP) may in
appropriate circumstances obviate the need to designate critical
habitat on military installations. These plans for conserving natural
resources on military property, required by the Sikes Act, are
developed in cooperation with state wildlife agencies, the U.S. Fish
and Wildlife Service, and the public. In most cases they offer
comparable or better protection for the species because they consider
the base's environment holistically, rather than using a species-by-
species analysis. The prior Administration's decision that INRMPs may
adequately provide for appropriate endangered species habitat
management is being challenged in court by environmental groups, who
cite Ninth Circuit caselaw suggesting that other habitat management
programs provided an insufficient basis for the Fish and Wildlife
Service to avoid designating Critical Habitat. These groups claim that
no INRMP, no matter how protective, can ever substitute for critical
habitat designation. This legislation would confirm and insulate the
Fish and Wildlife Service's policy from such challenges.
Both the prior and current Administrations have affirmed the use of
INRMPs as a basis for possible exclusion from critical habitat. Such
plans are required to provide for fish and wildlife management, land
management, forest management, and fish and wildlife-oriented
recreation; fish and wildlife habitat enhancement; wetland protection,
enhancement, and restoration; establishment of specific natural
resource management goals, objectives, and timeframes; and enforcement
of natural resource laws and regulations. And unlike the process for
designation of critical habitat, INRMPs assure a role for state
regulators. Furthermore, INRMPs must be reviewed by the parties on a
regular basis, but not less than every 5 years, providing a continuing
opportunity for FWS input.
By contrast, in 1999, the Fish and Wildlife Service stated in a
Notice of Proposed Rulemaking that ``we have long believed that, in
most circumstances, the designation of `official' critical habitat is
of little additional value for most listed species, yet it consumes
large amounts of conservation resources, . [W]e have long believed that
separate protection of critical habitat is duplicative for most
species.''
Our provision does not automatically eliminate critical habitat
designation, precisely because under the Sikes Act, the statute giving
rise to INRMPs, the Fish & Wildlife Service is given approval authority
over those elements of the INRMP under its jurisdiction. This authority
guarantees the Fish & Wildlife Service the authority to make a case-by-
case determination concerning the adequacy of our INRMPs as a
substitute for critical habitat designation. And if the Fish & Wildlife
Service does not approve the INRMP, our provision will not apply to
protect the base from critical habitat designation.
Our legislation explicitly requires that the Defense Department
continue to consult with the Fish and Wildlife Service and the National
Marine Fisheries Service under Section 7 of the Endangered Species Act
(ESA); the other provisions of the ESA, as well as other environmental
statutes such as the National Environmental Policy Act, would continue
to apply, as well.
The Defense Department's proposal has vital implications for
readiness. Absent this policy, courts, based on complaints filed by
environmental litigants, compelled the Fish and Wildlife Service to re-
evaluate ``not prudent'' findings for many critical habitat
determinations, and as a result FWS proposed to designate over 50
percent of the 12,000-acre Marine Corps Air Station (MCAS) Miramar and
over 56 percent of the 125,000-acre Marine Corps Base (MCB) Camp
Pendleton. Prior to adoption of this policy, 72 percent of Fort Lewis
and 40 percent of the Chocolate Mountains Aerial Gunnery Range were
designated as critical habitat for various species, and analogous
habitat restrictions were imposed on 33 percent of Fort Hood. These are
vital installations.
Unlike Sikes Act INRMPs, critical habitat designation can impose
rigid limitations on military use of bases, denying commanders the
flexibility to manage their lands for the benefit of both readiness and
endangered species.
Clean Air Act General Conformity Amendment
Our Clean Air Act amendment is unchanged since last year. The
legislation would provide more flexibility for the Defense Department
in ensuring that emissions from its military training and testing are
consistent with State Implementation Plans under the Clean Air Act by
allowing DoD and the states a slightly longer period to accommodate or
offset emissions from military readiness activities.
The Clean Air Act's ``general conformity'' requirement, applicable
only to Federal agencies, has repeatedly threatened deployment of new
weapons systems and base closure/realignment despite the fact that
relatively minor levels of emissions were involved.
<bullet> The planned realignment of F-14s from NAS Miramar to NAS
Lemoore in California would only have been possible because of the
fortuity that neighboring Castle Air Force Base in the same airshed had
closed, thereby creating offsets.
<bullet> The same fortuity enabled the homebasing of new F/A-18 E/
Fs at NAS Lemoore.
<bullet> The realignment of F/A-18 C/Ds from Cecil Field, Florida,
to NAS Oceana in Virginia was made possible only by the fortuity that
Virginia was in the midst of revising its Implementation Plan and was
able to accommodate the new emissions. The Hampton Roads area in which
Oceana is located will likely impose more stringent limits on ozone in
the future, thus reducing the state's flexibility.
As these near-misses demonstrate, under the existing requirement
there is limited flexibility to accommodate readiness needs, and DoD is
barred from even beginning to take readiness actions until the
requirement is satisfied.
Our proposal does not exempt DoD from conforming to applicable
requirements; it merely allows DoD more time a 3-year period to find
offsetting reductions. And this period does not apply to ``any
activities,'' but rather to the narrow category of military readiness
activities, which characteristically generate relatively small amounts
of emissions typically less than 0.5 percent of total emissions in air
regions.
The Clean Air Act permits the President to issue renewable 1-year
waivers for individual Federal sources upon a paramount national
interest finding, or to issue renewable 3-year regulations waiving the
Act's requirements for weaponry, aircraft, vehicles, or other uniquely
military equipment upon a paramount national interest finding. Use of
such time-limited authorities in the context of activities that are (a)
ongoing indefinitely, and (b) largely cumulative in effect would be
difficult under a paramount interest standard, and would require
needless revisiting of the issue annually or triennially.
This provision is vitally needed to protect readiness. The more
efficient and powerful engines that are being designed and built for
virtually all new weapons systems will burn hotter and therefore emit
more NOx than the legacy systems they are replacing, even though they
will also typically emit lower levels of VOCs and CO. Without greater
flexibility, the conformity requirement could be a significant obstacle
to basing military aircraft in any Southern California location, as
well as a potentially serious factor for the siting of the Joint Strike
Fighter and the Marine Corps' Advanced Amphibious Assault Vehicle.
Quantification of Encroachment
The final issue that I wish to raise as a part of today's hearing
concerns our ability to better quantify how encroachment affects our
test and training mission. This has been an on-going criticism of our
legislative effort as well as our broader range sustainment strategy a
concern raised as part of GAO's report on encroachment dated April 25,
2002.\7\ Because of these concerns and as part of the National Defense
Authorization Act for Fiscal Year 2003, Congress directed the Secretary
of Defense to develop a plan to address training constraints caused by
limitations on use of our land, sea, and air resources.
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\7\Although some commentators have mischaracterized the GAO report
as stating that encroachment has had no impact on military readiness,
the report itself explicitly states that encroachment is having
demonstrable adverse effects on readiness.
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As part of this requirement, DoD has recognized the need for better
supporting data to substantiate our requests for encroachment relief.
In response, the Under Secretary for Personnel and Readiness, has
recently asked the Secretary of each military department to develop and
submit specific information, to include:
<bullet> An assessment of the current and future training
requirements of their respective Service;
<bullet> A report on implementation of a Service range inventory
system;
<bullet> An evaluation of the adequacy of current Service
resources to meet both current and future training requirements in the
United States and overseas;
<bullet> A comprehensive plan to address operational constraints
resulting in adverse training impacts caused by limitations on the use
of, or access to, land, water, air and spectrum that are available or
needed in the United States and overseas for training; and
<bullet> A report on, or specific plans for, designation of an
office within each of the military departments that will have lead
responsibility for overseeing implementation of the plan.
Conclusion
In closing Mr. Chairman, let me emphasize that modern warfare is a
``come as you are'' affair. There is no time to get ready. We must be
prepared to defend our country wherever and whenever necessary. While
we want to train as we fight, in reality our soldiers, sailors, airmen
and Marines fight as they train. The consequences for them, and
therefore for all of us, could not be more momentous.
DoD is committed to sustaining U.S. test and training capabilities
in a manner that fully satisfies that military readiness mission while
also continuing to provide exemplary stewardship of the lands and
natural resources in our trust.
Mr. Chairmen, we sincerely appreciate your support on these
important readiness issues. I look forward to working with you on our
Readiness and Range Preservation legislation.
Thank you.
______
Responses of Benedict S. Cohen to Additional Questions from Senator
Inhofe
Question 1. For the record, about how much time would you say you
have spent working on this issue?
Response. I would estimate that I have spent hundreds, if not
thousands, of hours on the issues presented by the RRPI. However, it
has not been only my time that has been involved in working on this
important initiative, but also the time of an almost inestimable number
of personnel, military and civilian, throughout the Department of
Defense and the military departments. Here in Washington, numerous DOD
offices have people working on RRPI, as do each of the military
departments. Our people attend frequent intra-DOD working group
meetings, and work in the interagency process to address the concerns
of other agencies within the Federal family regarding our RRPI
proposals. They have met frequently with members and staff on Capitol
Hill, as well as providing information and engaging in outreach efforts
with State, local and tribal representatives, nongovernmental
organizations, and private citizens. In developing the proposals, we
have sought information from the military operators to ensure that the
proposals met their readiness needs. In many of these cases, requests
for information, often generated in response to questions from
congressional members and staff, must be pushed down to the individual
installations for response. I could only guess at the time dedicated to
this proposal by the individual installations.
Question 2. Please describe for me the intent of the DOD here. All
sorts of nefarious intents have been alleged. Is that true?
Response. Our intent is to sustain military test and training
activities in a way that ensures our military can provide overwhelming
force when engaged in combat actions. We also accept that a vital part
of this sustainment is protection of human health and the environment.
We believe we can do both--effectively for our military and our natural
resources and effectively for the taxpayer.
Question 3. Please detail your interactions with stakeholders on
this issue.
Response. The Services and DOD have worked with a wide range
stakeholders with a goal to ensure that the RRPI proposal effectively
balances the imperative of military readiness with our obligations for
environmental protection. In order to achieve this goal, DOD has
entered into dialog with a variety of stakeholders to identify mutual
issues and workable solutions.
With respect to the specific proposals of the RRPI, DOD has had
numerous meetings with each Federal agency with special expertise or
responsibility for the resource implicated by the RRPI. We have made
myriad modifications to our proposals in order to accommodate their
important and legitimate interests. We significantly modified our
proposal regarding Clean Air Act conformity requirements in order to
address concerns raised by the Environmental Protection Agency and to
ensure that State Clean Air Act implementation programs are not
jeopardized by DOD emissions resulting from our military readiness
activities. We also modified our RRPI proposal as it relates to RCRA
and CERCLA based on EPA and other stakeholder inputs. We drafted our
provisions related to the Endangered Species Act and the Marine Mammal
Protection Act in close consultation with the Department of the
Interior and the U.S. Fish and Wildlife Service and the National
Oceanic and Atmospheric Administration. The results were proposals that
facilitate important readiness considerations and are supported by
those agencies.
We have reached out to the States. We have spoken to various
organizations that represent State interests, to include the
Environmental Council of States (ECOS) and the Association of State and
Territorial Solid Waste Management Officials (ATSWMO). In addition, we
have had discussions with representatives of individual States that
have expressed concern over the RRPI proposal, to include discussions
with officials in Colorado, Florida, Texas, Alaska, California, and
many others. Also, as I noted in my testimony, for ``other than
operational ranges'' that require cleanup, the Department has
established a Munitions Response Committee that includes partners from
the U.S. Environmental Protection Agency, Federal Land Managers,
States, and Tribes. Although this committee deals with other than
operational ranges, we have discussed our RRPI proposal with members of
the committee, and have made modifications based on input to ensure
that it is clear that our RRPI proposals only apply to operational
ranges, not those that have closed, transferred, or are transferring.
DOD is partnering with land trust organizations and State and local
governments to find ways to create buffer zones and habitat critical to
threatened and endangered species adjoining our test and training
ranges. DOD has conducted a national workshop with these organizations
and is in the process of implementing the two land provisions that were
passed as part of RRPI by last year's Congress.
As a member of the ``Pulling Together Initiative,'' DOD has pooled
resources with other conservation partners to launch coordinated
efforts to control invasive weeds that damage habitat and increase
erosion and fire hazards.
The U.S. Navy has joint environmental research initiatives with the
Woods Hole Oceanographic Institute, Scripps Institution of
Oceanography, Cornell University, the University of Washington, the
University of Hawaii, and Oregon State University to address maritime
and marine mammal issues related to Navy testing and training
operations.
DOD continues to work with local communities on current clean-up
initiatives underway at military sites across the U.S. DOD intends to
meet its obligations to clean up contamination from past practices and
continue our strong pollution prevention and environmental compliance
programs. In this fiscal year alone, the environmental budget for DOD
will be $4 billion.
DOD also meets on a regular basis with representatives from the
national environmental groups at settings like the ``Brown Bag'' lunch
discussions sponsored by the Endangered Species Coalition and the
Sierra Club.
Question 4. Have you been working on refining the language? Please
be sure to submit for the record the latest versions, complete with
changes.
Response. Yes. As noted in the answer to the previous question, we
have made numerous revisions to the language in order to address
stakeholder issues. EPA and DOD have jointly completely revised our
RCRA and CERCLA provisions to delete provisions addressing any issues
beyond.our key concern, test and training on operational ranges
(attached). This revised language makes it unmistakably clear that our
proposal has no effect whatsoever on; closed ranges, or ranges that
close in the future; DOD's contractors' activities, or DOD's financial
obligations to its contractors or any other third parties; DOD's non-
readiness activities, either on-range or off-range (including disposal
of munitions by such methods as open burn/open detonation, burial, or
landfilling); or State and EPA regulatory authority over DOD activities
(including military readiness activities) under the Safe Drinking Water
Act.
Moreover, DOD remains engaged in extensive dialog with numerous
State regulators over the intent underlying our proposals and future
changes that might be helpful in clarifying that intent. We will keep
the committee apprised of the results of these continuing discussions.
Question 5. You have been open to constructive criticism, haven't
you?
Response. I believe DOD's aggressive outreach efforts and our
demonstrated willingness to adjust our proposal based on stakeholder
input places our openness to constructive criticism beyond question.
Question 6. What, if any, plans do you have to continue this work?
Response. We believe the focused proposals we have made in the RRPI
are an important step in our effort to protect military ranges and
readiness activities from encroachment. Even if the RRPI becomes law,
more work remains to be done. DOD is looking beyond just legislative
fixes for encroachment issues. We are in the process of evaluating all
of the circumstances that create problems for our test and training
ranges. Some of these may be solved with administrative or regulatory
changes. We are working with the military services, other Federal
agencies, tribes, States and local communities to find ways to better
balance military, community and environmental needs. DOD is also
developing a suite of internal policy and procedure adjustments, the
capstone of which is a new DOD Directive recently signed by the Deputy
Secretary of Defense to ensure long-range, sustainable approaches to
range management. In addition, we intend to strengthen and empower
management structures to deal with range issues. We also have taken a
pro-active role to protect bases from urbanization effects by working
with local planning and zoning organizations and other stakeholders.
Finally, DOD is also planning to address the long-term sustainment
process by reaching out to and involving other stakeholders. We must
improve the understanding of readiness needs among affected groups,
such as State and local governments and non-government organizations.
We must establish dialog and form partnerships with these groups to
reach our common goals. This will enable us to take a proactive stance
against encroachment and protect our bases into the future.
Question 7. Please describe what military statutes provide in the
way of emergency exemptions to these laws? Isn't there one that
provides 5 days of relief? How effective would that be?.
Response. Seven environmental laws authorize the President to
exempt Federal agencies from certain legal requirements if he
determines it to be in the ``paramount interest of the United States.''
(Clean Water Act; Resource Conservation and Recovery Act; Clean Air
Act; Noise Control Act; Safe Drinking Water Act; Marine Protection,
Research, and Sanctuaries Act; Coastal Zone Management Act) Two
environmental laws allow the President to exempt DOD from certain
requirements if he determines that doing so is ``necessary for reasons
of national security.'' (Comprehensive Environmental Response,
Compensation, and Liability Act; Toxic Substances Control Act). The
Endangered Species Act authorizes the Secretary of Defense to direct
the Endangered Species Committee to exempt DOD actions that are before
the Committee from certain requirements when he finds that the
exemption is ``necessary for reasons of national security.'' Other
environmental statutes, including most notably the Marine Mammal
Protection Act and the National Environmental Policy Act, contain no
national security exemption, even for wartime.
10 USC 2014, to which you refer, allows a delay of at most 5 days
in regulatory actions significantly affecting military readiness. I
detailed in my testimony why, although. useful, neither this provision,
nor those contained in environmental statutes, are a substitute for the
focused proposals of the RRPI. We do not believe it is good public
policy to use exemptions for what is an ongoing day-to-day issue for
our military trainers. We need to fix the root cause of the issue.
Question 8. Isn't the point here that you need these changes for
routine operations to prepare for the emergency situations BEFORE the
emergency situations present themselves?
Response. That is exactly right. To allow routine test and training
activities to be degraded in quality until an emergency occurs ensures
that the troops we dispatch to deal with the emergency do so on the
basis of compromised, suboptimal training. Only the follow-on forces we
send after them will have the benefit of such an emergency exemption;
for them, it will come too late.
Moreover, I do want to clarify the word ``routine.'' Our proposals
would cover only military readiness activities, many of which may occur
on a routine basis. But the RRPI does not cover all day-to-day
activities engaged in by the military. Our proposal only applies to a
narrow category of activities, i.e., ``military readiness activities.''
Military readiness activities do not include activities on closed
ranges or ranges that close in the future. Nor are the routine
installation operating support functions (e.g., water treatment
facilities, motor pools, industrial activities, construction or
demolition) included in the definition of ``military readiness
activities.'' As I stated in my testimony, our initiative is not
applicable to the Defense Department activities that have traditionally
been of greatest concern to State and Federal regulators. It does
address only uniquely military activities-what DOD does that is unlike
any other governmental or private activity.
Question 9. Governor Whitman has testified that, ``We have been
working very closely with the Department of Defense, and I don't
believe that there is a training mission anywhere in the country that
is being held up or not taking place because of an environmental
protection regulation,'' and ``[A]t this point in time I am not aware
of any particular area where environmental protection regulations are
preventing desired training.''
Why do you believe that the environmental legislation proposed by
the Department of Defense should be enacted when you also apparently
believe there is no instance where it is needed?
I want to be clear that as Chairman of the Environment and Public
Works Committee and as a father of four and a grandfather of eleven, I
am quite mindful of our nation's future and want to continue the
improvement in the health of our environment, which EPA statistics
show.
Response. DOD faces ever increasing challenges from the cumulative
effect of urbanization and the increasing application of environmental
restrictions on military readiness activities. Although DOD has so far
been able to find ``work-arounds'' to most restrictions, availability
and fidelity of training have suffered. Our flexibility to continue to
do these ``work-arounds'' is quickly diminishing. For example, our
young men and women often must be sent farther and farther from their
home station to complete training because they cannot accomplish
training at their home station due to environmental restrictions. As
you pointed out in a previous question, our intent is to plan ahead, to
be prepared before an emergency presents itself.
Lawsuits from private entities currently underway do have the
ability to dramatically affect our ability to continue training and we
want to ensure that those types of actions do not stop our military
readiness activities.
Because external pressures are increasing, the adverse impacts to
readiness are growing. Yet future testing and training needs will, only
further exacerbate these issues, as the speed and range of our weaponry
and the number of training scenarios increase in response to real-world
situations our forces will fade when deployed. We must therefore begin
to address these issues in a much more comprehensive and systematic
fashion and understand that they will not be resolved overnight, but
will require a sustained effort.
Question 10. Will human health and the environment be fully
protected under this legislative proposal?
Response. Yes. Each of our proposals has been designed to ensure
that adverse impacts will be minimal. As we have often pointed out, our
proposals are not blanket exemptions from environmental law. Rather,
they are narrow and targeted. They apply only to military readiness
activities, preserve regulatory ability to take protective action when
human health or the environment is endangered, and do not eliminate
DOD's current obligations for environmental compliance or cleanup.
Question 11. EPA has worked closely with DOD on these proposals.
Are you absolutely convinced that these proposals are necessary to
fully accommodate America's military readiness?
Response. Yes.
Question 12. What authorities will EPA have to ensure that the
environment is clean under Superfund?
Response. EPA, the States, and citizens reserve their current
ability to enforce compliance/cleanup under CWA and the SDWA on
operational ranges to protect the health of the public. RPPI does not
affect that. Current legal requirements and obligations under CERCLA/
RCRA/CWA and the SDWA are maintained for all contaminants that migrate
off operational ranges. If DOD does not preclude or address the
migration, the EPA, the States, and citizens retain their current
rights to enforce compliance/cleanup to also protect the health of the
public in this case.
Question 13. What authorities will EPA have to ensure that the
environment is clean under the Resource Conservation and Recovery Act--
RCRA?
Response. EPA, the States, and citizens reserve their current
ability to enforce compliance/cleanup under CWA and the SDWA on
operational ranges to protect the health of the public. RPPI does not
affect that. Current legal requirements and obligations under CERCLA/
RCRA/CWA and the SDWA are maintained for all contaminants that migrate
off operational ranges. If DOD does not preclude or address the
migration, the EPA, the States, and citizens retain their current
rights to enforce compliance/cleanup to protect the health of the
public in this case.
Question 14. As a former State legislator I want to assure you that
I am quite cognizant of States' rights. What is the status of States'
rights under this proposal? Do States maintain protections under this
proposal? What, if any, rights do States lose under this proposal?
Response. States will maintain protections under each element of
the RRPI, and in crafting the RRPI the Department of Defense was
careful to minimize the impacts the proposal would have on a State's
rights to enforce environmental requirements. The RCRA/CERCLA provision
is a codification of current EPA and State policy concerning regulation
of munitions used on operational ranges. It simply confirms that
military munitions are subject to EPA's 1997 Military Munitions Rule,
and that the use of munitions for testing and training is not, by
itself, a trigger for cleanup requirements on operational ranges,
unless contamination moves off range. The provision does not apply to
closed ranges, and it also preserves EPA and State rights to respond to
cases of imminent endangerment under RCRA and CERCLA, and to protect
sources of drinking water under the Safe Drinking Water Act.
Under our proposal for the Clean Air Act, our provision serves only
to give military readiness activities a modest extension of time to
conform to State Implementation Plans. It does not exempt our
activities from compliance, and it ensures that States are not
penalized during the time DOD is finding offsets for increased
emissions from readiness activities.
Our proposal under the Endangered Species Act does not affect the
current requirement that Integrated Natural Resources Management Plans
must be prepared in cooperation with the Secretary of the Interior and
State fish and wildlife agencies and be approved by both.
Question 15. I am also a former Mayor. What is the status of
cities' rights under this proposal? Do cities maintain protections
under this proposal? What, if any, rights do cities lose under this
proposal?
Response. As with States, cities' protections and rights are
maintained by this proposal. As we've noted previously, the RRPI does
not exempt DOD activities from any provision of environmental law.
Question 16. Will States lose any tools available to them for
cleanup?
Response. No. DOD believes that under existing law, military
testing and training on operational ranges is neither a waste
management activity under RCRA or a release under CERCLA. Our proposals
confirm this interpretation. Therefore, neither EPA, nor the States,
nor citizens will lose any tools for cleanup that are available to them
now.
Question 17. Who is authorized to clean up sites when there is a
threat of ``imminent and substantial endangerment''--States or the
Federal Government or both?
Response. The Federal Government and the States have environmental
laws that apply to imminent and substantial endangerment of human
health or the environment.
Question 18. I know Senator McCain has concerns that there may be a
loss of funding for cleanup if these legislative proposals are enacted.
Is there any truth to that? Will EPA change its allocations of funds if
these proposals are enacted?
Response. Although we defer to EPA concerning its program funding
allocation, nothing in RRPI requires or would even imply any change in
DOD or EPA cleanup funding levels or allocation.
Question 19. Is it fair to characterize the subsection (a) as
requiring DOD to estimate and report to the State emissions from
proposed military training activities? Does subsection (a) also provide
DOD with a 3-year window of flexibility?
Response. Yes. Section 2018(a) requires DOD to estimate the
emissions of any covered criteria pollutants or precursors from
proposed military readiness activities covered by Clean Air Act (CAA)
Section 176(c), and to inform State air quality regulators of those
covered emissions before engaging in the activity. Section 2018(a)
would also modify existing law to provide military readiness activities
up to 3 years to demonstrate conformity with the State Implementation
Plan (SIP) from the date they begin.
Question 20. Is it fair to characterize subsections (b) through (e)
as holding States harmless for emissions from military readiness
activities?
Response. Yes. Under subsections (b) through (e) State air programs
will not be penalized for any failure to attain or maintain the
national ambient air quality standards (NAAQS) that is solely due to a
military readiness activity's extension of time to meet general
conformity requirements.
Question 21. Are cities also held harmless?
Response. The hold harmless provisions of Sections 2018(b)--(e)
apply to any SIP for any nonattainment or maintenance area under the
CAA that involves a covered military readiness activity. To the extent
that a city is located in such a non-attainment or maintenance area, or
develops and implements the affected SIP for the area, it will be held
harmless as well: neither the city nor any other sources will be
required to compensate for the temporary increase in DOD emissions.
Question 22. Some States and some cities have expressed the concern
that they will bear an additional burden upon enactment of these
legislative proposals. Is there any truth to that burden-shifting
argument?
Response. It is not clear to me how it can be argued that the RRPI
shifts any burden to States or cities. As we've often pointed out, the
RRPI does not exempt DOD's military readiness activities from any
requirements of environmental law. Of the RRPI proposals, only one
proposal (CAA) may result in small increases in pollution, and then
only for a limited period of time. Even here, the proposal is careful
to ensure that States are held harmless for these small increases in
emissions.
Question 23. Is there any truth to the argument that under these
proposals we are accomplishing the universally accepted goal of
supporting our Armed Forces at the ``expense of our nonmilitary
citizens,'' as Councilmember Lindeman from Aurora, Colorado, states in
her testimony?
Response. No. To the contrary, the proposals are very narrow in
scope and largely codify longstanding policies of State and Federal
environmental protection agencies. We have worked closely with these
agencies to ensure that the RRPI balances military readiness with
environmental protection.
Question 24. Councilmember Lindeman characterizes these proposals
as ``blanket exemptions'' from environmental laws. Is that a fair
characterization?
Response. Although often repeated, the suggestion that the RRPI is
a ``blanket exemption'' is simply not accurate. DOD will continue to
comply with the same environmental laws as private organizations when
engaged in the same activities. With respect to DOD's unique readiness
activities, the RRPI initiative does not ``exempt'' them; rather, it
clarifies and confirms existing regulatory policies that recognize the
unique nature of our activities. It codifies and extends EPA's existing
Military Munitions Rule; confirms the prior Administration's policy on
Integrated Natural Resource Management Plans and critical habitat;
codifies the prior Administration's policy on ``harassment'' under the
Marine Mammal Protection Act; ratifies longstanding State and Federal
policy concerning regulation under RCRA and CERCLA of our operational
ranges; and gives States and DOD temporary flexibility under the Clean
Air Act.
Question 25. I want the experts at EPA to put any unwarranted fears
to rest once and for all-Are the ramifications from these proposals
``serious,'' ``untenable,'' and do they pose ``significant potential
for adverse public health effects in cities with respect to air,
drinking water, and management of hazardous waste,'' as Councilmember
Lindemann states in testimony, or does this rhetoric not match the
reality of the proposal?
Response. EPA supports our RRPI initiative. I do not believe the
Department would have EPA support if RRPI presented a significant
threat to public health.
Question. 26. Can you tell me why a 3-year window of flexibility
might be appropriate, as opposed to 1 year or 8 years, for example? Is
this a reasonable amount of time to offset emissions that might result
from the deployment of new weapons systems and /or realignment of force
strength?
Response. The 3-year window of flexibility resulted from a
compromise urged by EPA in early 2002. DOD originally proposed a 5-year
window of flexibility because that is generally how long it takes from
proposal to receipt of funding and approval to begin construction of
major MILCON projects. Major MILCON projects, such as a baghouse to
capture air emissions, are sometimes needed to make military readiness
activities conform to the SIP. Similarly, the 3 years may be needed to
obtain funding of emission credits or other emission offsets. We
believe that the additional 3 years from the date the activity begins
will be an adequate period of additional time to work with local,
State, and Federal regulators and others to demonstrate positive
conformity for new weapons systems or realignments.
Question. 27. What do you think of the suggestions that we
accommodate concerns that this window is too much time and thus
represents too many emissions by going with two and one half years or 2
years instead of 3 years?
Response. As discussed above, DOD has already compromised by
shortening the desired window of flexibility by 2 years. Three years is
a reasonable period. Anything less would not provide sufficient lead
time to plan, fund, and construct any MILCON projects needed to bring
military readiness activities into conformity with a SIP. Considering
that the vast majority of mobile and fugitive sources of problematic
emissions in a given air quality area are non-military, and their
operations are unregulated by CAA Section 176(c), emissions from
existing and new military readiness activities are not a root cause of
areas failing to attain or maintain the NAAQS. Military readiness
activity emissions in a given non-attainment or maintenance air quality
area are generally miniscule in comparison to all other sources of the
same pollutant.
Question 28. Councilmember Lindemann poses a rhetorical question in
her testimony that I would like to have answered in reality.
She states, ``Contamination, and subsequent closure, of sources of
drinking water by military ordnance constituents such as perchlorate,
RDX and TNT have already occurred in Maryland and Massachusetts--under
current law. What will happen in these municipalities if the Department
of Defense is exempted from the relevant statutes?
Response. There will be no change. There is no request by DOD for
any exemption from the Safe Drinking Water Act, the law that protects
drinking water sources. The basis for USEPA's action at the
Massachusetts Military Reservation will be unchanged.
Question 29. What is the answer to her question? What would have
happened in those situations if these legislative proposals had been
enacted at that time? Would things have proceeded differently?
Response. No. Things would not have proceeded differently. These
legislative proposals have no effect on the Safe Drinking Water Act or
on any contamination that presents a threat to human health.
Question 30 (Note: The following was mistakenly numbered as a
separate question. Actual Question/Answer in #31). Councilmember
Lindemann makes another rhetorical point in her testimony that I would
like to have answered in reality.
Question 31. Councilwoman Lindemann makes another rhetorical point
in her testimony that I would like to have answered in reality.
She characterizes this proposal as exempting military facilities
from CERCLA remediation requirements, thereby halting the cleanup of
the sites and preventing any effective opportunity for redevelopment
and economic stability in the surrounding community. She makes the case
that the economy is thus jeopardized. Is there any truth to that
assertion?
Response. No. No CERCLA remediation requirements are affected by
our legislative package. Defense Environmental Response Program (DERP)
sites and Base Realignment and Closure (BRAC) sites will not be
affected by the legislation.
Question 32. Concern has been raised about the usage of the term
``constituents thereof' in conjunction with the list ``explosives,
unexploded ordnance, munitions, munitions fragments.'' What, if any, is
the effect of using the term ``constituents thereof''?
Response. The use of the term ``constituents thereof' is two-fold.
First, the intent of RRPI is to codify existing EPA and State policy
that the use of military munitions on operational ranges does not
trigger the waste management requirements of RCRA or the cleanup
obligations of CERCLA as long as the munitions, including all of the
byproducts of the use of munitions (i.e., their constituents) remain on
the range. This clarification of policy would be of little value if it
applied only to components of munitions (explosives, unexploded
ordnance, munitions and munitions fragments) and not to the chemical
byproducts of the use of munitions, which otherwise might fall within
the definition of a hazardous waste or hazardous substance. Second, the
inclusion of the term ``constituents'' ensures that if the byproducts
of munitions use leave our ranges, for example, by migrating in
groundwater, they are subject to RCRA or CERCLA or both.
Question 33. Do the legislative proposals in any way, either
directly or by implication, affect the Safe Drinking Water Act over
which this committee has jurisdiction?
Response. No.
Question 34. Mr. Benevento on the second panel has shown himself to
be thoughtful and analytical in some of his suggestions. He has
suggested that we make explicit in the statutory language that this
legislation in no way impacts the Safe Drinking Water Act. Even if this
language were redundant, wouldn't it be a good idea as a means of
reassuring States and cities? Would you agree to this suggestion?
Response. DOD would have no objection to such a clarification.
Question 35. The ``Military Munitions Rule'' which I have in my
hand was proposed in 1995 by then-EPA Administrator Carol Browner
during the Clinton/Gore Administration. The same cast of characters
finalized the rule in 1997. The rule itself was mandated by a Democrat-
controlled Congress in 1992 legislation called the Federal Facilities
Compliance Act.
Some have suggested that merely codifying the Military Munitions
Rule the work of the Democrats--would be a massively roll back of
environmental law and would constitute a sweeping exemption. Could this
allegation be true?
Response. The request for clarification of language in RCRA and
CERCLA are basically codifications of the Military Munitions Rule and
do not represent ``a massive roll back'' of environmental laws. We
believe the Rule represents a reasonable approach that accommodates
both the imperative of military training and the need for environmental
protection.
Question 36. The allegation is that there is a whole host of
implications associated with codifying the rule, such as State
sovereign immunity, et cetera. Can you comment on this allegation?
Response. The Military Munitions Rule has been adopted by a large
majority of States. The Rule was promulgated by EPA in 1997 after
extensive consultation with the States. We do not believe codifying the
Rule implicates State sovereign immunity. The RRPI does not subject the
States to regulation or to legal action. To the contrary, it applies to
the Department of Defense and establishes how DOD will be regulated in
its conduct of military readiness activities. The RRPI simply reaffirms
Congress' original intent that test and training with munitions on
operational ranges does not constitute a waste management activity
under RCRA or a ``release'' under CERCLA, and is thereby not
appropriately regulated under those States by either the Federal
Government of the States.
______
Responses of Benedict S. Cohen to Additional Questions from Senator
Graham
Question 37. How many acres of land or water (surface waters and
ocean waters) will be affected by the proposed exemptions?
Response. As indicated in my testimony, DOD is not seeking
exemptions from environmental laws. Further, some of the elements of
our initiative are not geographic in nature, that is, they apply to
activities rather than to specific places or facilities so it is not
possible to determine the number of acres that may be affected with any
degree of precision. For example, our proposal related to Clean Air Act
conformity would apply to new military readiness activities at any
installations where they may occur. Similarly, our proposal for a
modified definition of ``harassment'' under the Marine Mammal
Protection Act would apply to activities wherever they occur under the
coverage of the Act.
Two elements of our initiative that do apply specifically to
military lands are the provision related to Integrated Natural
Resources Management Plans (INRMPs) and the provision related to
munitions use on operational ranges. The INRMP proposal would apply
only to DOD installations with approved INRMPs. This provision is not
an exemption from the Endangered Species Act. Rather, it provides that
DOD lands that are covered by an INRMP that has been approved by the
Secretary of the Interior as adequately addressing special management
considerations related to endangered species will not require
designation as critical habitat. If the Secretary of the Interior were
to find that an installation INRMP did not provide adequate protection
for the species, she would not be precluded from designating critical
habitat.
The proposals related to munitions use would apply only at
operational ranges for those test and training activities which use
military munitions. The Services are currently compiling detailed
inventories of all their operational training ranges using a common
inventory framework to ensure reporting consistency across the
Services. We intend to submit this inventory with the 2005 Budget as
specified by Congress.
Question 38. Has the Department of Defense complied a list of
installations that will be exempted under the provisions of the
proposal? If so, I would like to review a copy. If not, when do expect
to compile such a list?
Response. Not provided to the committee.
Question 39. Has the Department of Defense investigated whether or
not environmental contamination exists at these sites in order to
create a catalog? I would like to review this information if it is
available.
Assuming that contamination exists, what are the plans for cleanup
of these installations? Have any public health assessments been done to
ascertain the impact of the CERCL?A/RCRA/CAA exemptions to the health
of communities on and near bases?
Response. Contamination on operational ranges is addressed under
the Defense Environmental Restoration Program and installation-specific
restoration programs. Known contamination sites are reported to
Congress annually in the Department's Defense Environmental Quality
Program Annual Report to Congress. Currently, it is not always possible
to determine whether a reported contamination site is located on an
operational range or on some other portion of an installation. The
Department, however, recently began an intensive effort to identify the
full range of factors affecting', range sustainability, one of which is
the need to address environmental contamination migrating from
operational ranges or threatening drinking water sources. Additionally,
Sec. 313 of the National Defense Authorization Act for Fiscal Year
2002 (P.L. 107-107) requires the Department to provide to Congress
information concerning the projected cost to remediate unexploded
ordnance, discarded military munitions, and munitions constituents at
all operational ranges. This information will be provided to Congress
as soon as it becomes available.
Known contamination migrating from operational ranges or otherwise
threatening drinking water sources or human health has been--and
continues to be--addressed under the Defense Environmental Restoration
Program and installation-specific restoration plans (although the
reported information concerning these sites has not always made it
possible to determine easily whether a site is located on an
operational range or elsewhere on an installation). In the future, we
expect our range sustainment efforts will produce information that will
enable us to determine readily whether a contamination problem emanates
from an operational range.
With respect to the provisions of the RRPI related to the CAA, they
relate primarily to military readiness activities that will occur in
the future, such as missions realigned to bases from bases closed under
BRAC (Base Realignment And Closure). As part of the realignment
process, the military department that is the proponent of the action
will analyze CAA impacts as part of its assessment of the environmental
consequences of the action pursuant to the National Environmental
Policy Act.
Question 40. Has the military made any attempt to use the existing
exemptions in the environmental laws or any attempts to clarify their
process? If not, why?
Response. The Department of Defense has not used the exemptions in
the environmental laws to military readiness activities, and for the
reasons I outlined in my testimony, we do not believe existing
exemptions are well suited for use in the context of on-going military
readiness activities. Nevertheless, one of the most frequently heard
comments on our RRPI proposal is that the Defense Department is seeking
new legislative flexibility without having explored the flexibility
inherent in existing law. Although we are convinced that existing
emergency exemptions cannot adequately substitute for our proposals, we
did take this criticism to heart, and the Department is developing
procedures to use existing exemptions in the appropriate circumstances.
In this regard, I would like to address the March 7, 2003
Memorandum from Deputy Wolfowitz to the Secretaries of the Military
Departments concerning the process by which the Department will
evaluate the use of existing exemptions under Federal environmental
laws. As DOD has repeatedly testified, our efforts to address
encroachment are multifaceted, and our legislative proposals are only
one element of them. Other aspects of encroachment will be addressed
through collaborative efforts with our State and Federal regulators,
such as the drafting of the MBTA regulation mandated by Congress last
year. Still others can be addressed through improvements in the
internal policies and processes of the Defense Department itself.
The Deputy Secretary's memorandum falls into this last category--
improvements in our own internal processes. It addresses a critical
shortcoming in our ability to efficiently and thoughtfully consider the
use of these existing exemption authorities: the absence of an
articulated process for developing and considering proposed exemptions.
Accordingly, Dr. Wolfowitz directed the military departments to develop
procedures to ensure timely evaluation of the full range of relevant
considerations. Importantly, the Deputy Secretary required that
proposals for exemption include, among other things, specific,
quantified evidence of the impact of the regulation proposed for
exemption on readiness; an explanation of the reason the readiness
activity cannot be modified, relocated, or rescheduled to avoid
conflict with the regulation without compromising readiness; and the
reasonably practical efforts available to mitigate the environmental
consequences of proceeding with the training or testing activity in
question.
Question 41. There are a number of instances in which the military
has worked in collaboration with local stakeholders to produce win-win
solutions at installations for species protection and military
readiness on a case-by-case basis. Yet a November 24, 2002, cover memo
from the Secretary of the Navy with policy guidance from the Secretary
and another cover memo from the: Deputy Commandant of the Marines seems
to be an attempt to centralize at the Pentagon all decisionmaking on
proposed critical habitat designations and other ESA actions and to
forbid locally negotiated ESA solutions tailored to local conditions.
The Secretary's cover memo states``. . . concessions could run counter
to the legislative relief we are continuing to pursue with Congress.''
A cynic might say that this has the appearance of an attempt to
manufacture conflict between he military and implementation of the ESA.
What is your explanation of the November 24 memo? Why should problem
solving with the local community be discouraged?
Response. The November 24 memorandum is consistent with DOD's goal
of establishing a comprehensive and coordinated approach to addressing
encroachment, including the effects of environmental regulation, on our
training and testing. Collaborative agreements at the local and
installation level have always been, and will continue to be, how such
issues are resolved. DOD does not intend to try to centralize this
process. However, it is important that the parties consider the broader
implications of potential agreements, and that such agreements be
consistent with broader DOD policy. While most mutual agreements
reached between military installations and regulators on ESA issues
satisfy the interests of both parties, not all have considered the
potential implications on readiness due to training work-arounds, which
are at the core of DOD's concerns over the incremental degradations to
readiness due to encroachment. The Secretary of the Navy's forwarding
memo advises that local installation commitments that exceed the
requirements of the Endangered Species Act need to be carefully
assessed to ensure that they cumulatively don't adversely impact the
Navy's Title 10 obligations to ensure readiness.
Question 42. What is the percentage of encroachment caused by
environmental laws? What is the percentage of the encroachment caused
by sprawl and urban suburban development?
Response. While I cannot offer a complete answer, I can provide an
example. A March 2003 U.S. Marine Corps study of encroachment at Camp
Pendleton, California, found that restrictions relating to threatened
or endangered species or to wetlands have the biggest impact on
training there out of a variety of encroachment factors studied. This
study found that 53 percent of restrictions associated with non-firing
field training tasks at Camp Pendleton were caused by these two
environmental factors. So current environmental law and regulation
certainly are significant encroachment factors.
But I would like to answer your question in broader terms. DOD
believes that the root cause of most encroachment on military ranges is
increasing development and urbanization, which in turn increases
competition for natural resources and conflicts between existing
military activities and the encroaching development. Many of the
environmental problems we face on our ranges are the result of
expanding human activity, outside the fence-line, as well as decreasing
natural habitat in surrounding areas. Because DOD ranges have been
generally very successful in protecting habitat and natural resources,
they have in many cases become defacto refuges for endangered species
in a region. DOD accepts its role to protect and preserve our national
heritage and natural resources, and we will continue to fully satisfy
our environmental obligations, to include endangered species
protection. However, DOD also needs these ranges to conduct is primary
mission of preparing our armed forces for battle. Our proposal to use
INRMPs in lieu of critical habitat designation is intended to increase
flexibility to test and train while still preserving species and their
natural environments.
Question 43. How many acres of land does the Army, Navy, Air Force
and Marine lease to nonmilitary entities for any activity not directly
related to military operations such as grazing leases, energy leases,
business park leases, logging leases, airports (and/or their
extensions), highways and other transportation leases, etc? Can you
also supply this committee with the percentage of lands (based on the
total number of land acres) such leases encompass?
Response. Many of our ranges work with NGO's, surrounding
communities, businesses and other interests to provide access to DOD
lands for a variety of purposes. In addition to the uses you cite, some
DOD lands are made available for farming, hunting and fishing, public
communications facilities, wastewater treatment areas, State parks, and
myriad other uses that benefit the surrounding regions. I cannot give
you a specific answer as to the number of acres involved or the
percentage of DOD lands such uses encompass without a substantial and
expensive data-collection activity. It is important to keep in mind
that as a rule, leases or other agreements with outside parties are
only allowed when they do not conflict with the military mission. More
importantly, I want to be quite clear that the RRPI reforms we advocate
apply only to military readiness activities. None of the non-readiness
activities on DOD lands that you describe would be benefited in any way
by our proposals.
Question 44. The Department of Defense's rationale for requesting
exemption from environmental laws is that the compliance with such laws
negatively affects military readiness. Given that, I was surprised to
see that the fiscal year 2004 budget request cut funding for
environmental programs by approximately $400 million. Is it your
understanding that the budget cut was made in anticipation of receiving
exemptions?
Response. No, the fiscal year 2004 Budget Request was not made
anticipating passage of the RRPI. The reduction in the funding request
for environmental programs in each of the environmental program
elements as based on reasons entirely unrelated to RRPI.
<bullet> Restoration: The RCRA/CERCLA provisions of the RRPI would
apply only to operational ranges and therefore would have no impact on
Defense Environmental Restoration Program requirements or environmental
liability.
<bullet> BRAC: The fiscal year 2004 budget request for the total
fiscal year 2004 BRAC program (including environmental and caretaker
costs) represents a 34 percent reduction from fiscal year 2003. When
considering BRAC environmental costs only, the planned value of the `04
program ($412.0 million) represents a 24 percent reduction from fiscal
year 2003 ($540.2 million). A significant portion of the difference is
attributed to revenues anticipated from land sales of base closure
properties, thus reducing the 2004 budget request.
<bullet> Compliance and Pollution Prevention: The Department's
Compliance and Pollution Prevention ``must fund'' policy remains
unchanged--DOD Components must fund their environmental requirements at
a level to ensure compliance with legally mandated standards. The
President's Budget request for compliance does account for all legally
mandated requirements. The Department's total requirement is reduced
for Fiscal Year 21104 because the DOD Components have completed several
expensive, long-term programs. Examples of actions completed include:
<bullet> The Navy completed buying and installing pulpers and
shredders on ships to reduce discharges at sea;
<bullet> The Navy's requirement to fund the UXO removal at
Kaho'olawe ended in fiscal year 2003;
<bullet> The Military Departments finished an effort to fix a
number of drinking water systems;
<bullet> All of the Military Departments have implemented
``pharmacies'' to reduce the use of hazardous materials;
<bullet> All the Military Departments have met the last Toxic
Release Inventory reduction goal and 2001 is the baseline for a new
reduction goal (only now can they identify where they need to make
reductions and the associated investments will be in fiscal year 2005
and fiscal year 2006); and
<bullet> All of the DOD Components are reducing compliance costs
each year through Pollution Prevention and Environmental Management
Systems.
Question 45. Has the Department of Defense done any kind of
assessment to ascertain the impact of military training and, by
extension, exemptions on drinking water supplies?
Response. Groundwater impact assessments have been done,
particularly at ranges of particular sensitivity or concern, such as
the Massachusetts Military Reservation, among others. An effort is
underway to do a more systematic assessment of potential drinking water
issues. As part of its fiscal year 2004 Defense Planning Guidance, the
Department has initiated an effort to assess potential hazards from
off-range munitions and begin remediation by fiscal year 2008. This
will include characterization of potential areas of munitions
contamination, as well as consideration of hydrology and potential
issues associated with drinking water supplies.
Question 46. The National Policy Dialogue on Military Munitions,
composed of a variety of stakeholders, resulted in several DOD
directives and produced a focused, joint effort by the Department and
the Armed Forces to identify and manage the environmental challenges
facing military training, weapons testing, and disposal practices
related to munitions. Why then has the Department of Defense decided to
pursue legislation first rather than pursuing the recommendations of
the National Policy Dialogue on Military Munitions?
Response. The Department is pursuing the recommendations of the
National Policy Dialogue, which resulted in Departmental directives and
instructions on improving management of munitions from ``cradle to
grave.''
The Department continues the process of fully implementing the
Munitions Action Plan that resulted from the Munitions Dialogue. The
Operational and Environmental Executive Steering Committee for
Munitions (OEESCM) continues to meet with senior leadership's
participation and guidance. The many goals in the Munitions Action Plan
are being implemented by numerous subcommittees who regularly report
progress to the OEESCM full committee.
The overall Range Readiness and Sustainment Initiative has multiple
pieces, of which the legislation is but one.
Question 47. Last year, Congress rejected DOD's proposals for new
exemptions from public health and environmental laws. However, Congress
did require the Department to ``develop a comprehensive plan for using
existing authorities available . . . to address training constraints,''
including ``an assessment of current and future training range
requirements'' and ``an evaluation of the adequacy of current
resources.'' Congress also required the Secretary of Defense to submit
a report describing progress made, including the plan for using
existing authorities and an inventory of existing training ranges and
their capabilities. What is the status of the comprehensive plan? What
is the status of the progress report and range inventory? When can
Congress expect to be presented with these reports?
Response. Satisfying the requirements of Section 366 of the Bob
Stump National Defense Authorization Act for fiscal year 2003 (P.L.
107-314) is a high priority for the Department of Defense. First, as
noted in my response to question 39, the Department is developing
processes for the use of existing exemptions under Federal
environmental laws. The March 7, 2003, Memorandum from Deputy Secretary
Wolfowitz directs the Secretaries of the Military Departments to
develop procedures to ensure timely evaluation of proposals for
exemptions, considering the full range of relevant considerations,
including the readiness impact of the environmental requirement from
which a exemption is sought as well as reasonably practical measures
which may be taken to mitigate he environmental impacts of proceeding
with the readiness activity.
Further, DOD has extensive efforts underway to better characterize
encroachment and its effects on our ability to meet current and future
training requirements; these efforts, however, will require some time
to complete. In January, each service was tasked to complete a
comprehensive response to Section 366 no later than November 15, 2003.
The Office of the Secretary of Defense will compile a final Department
report to be submitted to Congress with the President's fiscal year
2005 Budget request early in calendar year 2004. This comprehensive
report will address each of the Congress's Section 366 areas of
concern:
<bullet> Training Range Sustainment Plan: Each of the Services was
directed to assess current and future training range requirements; to
evaluate the adequacy of existing training resources to meet these
requirements; and to develop a comprehensive approach to resolving
identified issues or deficiencies.
<bullet> Encroachment Impact Reporting: Service and OSD efforts to
quantify encroachment effects on our installations and ranges are
underway. The Services have been directed to include explicit data on
encroachment effects in their reports.
<bullet> Training Range Inventory: The Services presently are
completing detailed inventories of all their operational training
ranges. The Department is developing the common inventory framework and
the data definitions needed to ensure reporting consistency across the
Services.
Characterizing accurately the effects of encroachment on military
ranges and developing a balanced and comprehensive plan to mitigate
encroachment effects on military readiness are complex undertakings.
The information being developed is of great importance, both to answer
Congress's request and as a baseline for the Department's long-term
range-sustainment effort.
______
Responses of Benedict S. Cohen to Additional Questions from Senator
Jeffords
Question 48. Has any training range experienced encroachment on
training as a result of the requirements of the Clean Air Act? If so,
what bases and by what percent of training capability was training at
that facility impaired?
Response. To date, individual conformity determinations have been
addressed on a case-by-case each resolved in a different manner. The
planned realignment of F-14s from NAS to NAS Lemoore in California was
only possible because of the fortuity that neighboring Castle Air Force
Base in the same air shed had closed, creating emissions offsets. The
same coincidence enabled the home basing of new F/A-18E/Fs at NAS
Lemoore. The realignment of F/A-18 C/Ds from Cecil Field, Florida to
NAS Oceana in Virginia was made possible only because Virginia happened
to be in the midst of revising its Implementation Plan and was able to
accommodate the new emissions. As these near misses demonstrate, under
the requirement there is limited flexibility to accommodate readiness
needs and DOD is barred from even beginning to take readiness actions
until the requirement is satisfied. In these examples, the ability to
come home base these aircraft at the desired locations was dependent
upon the right set of circumstances, not on existing flexibility in the
law.
In addition, most of our readiness activities in non-attainment
areas preceded the Act and its subsequent amendments. As long as those
pre-existing and continuing activities remain relatively unchanged the
Act's General Conformity prohibition does not apply. However, any
significant changes in those continuing and recurring activities
potentially fall within the proscriptions of the Act's General
Conformity provision. For example, most of the weapons systems
currently being operated in non-attainment areas were operating in
those areas long before (in some instances for decades) the General
Conformity requirement was enacted as part of the Act's Amendments of
1990. Thus, if we had no need to keep our forces modern our activities
might never be adversely impacted by the current Act.
However, when we must replace aging legacy systems (e.g., aircraft,
vehicles, or equipment) in a given non-attainment or maintenance area
with new ones, the Act strictly prohibits us from replacing even one
weapon system, such as replacing an F-15C with an F-22, without first
demonstrating that the entire action--replacing all the F-15Cs with F-
22s at that installation--conforms to the State Implementation Plan
(SIP). Thus, while the current Act has not yet adversely impacted our
continuing and recurring activities, we anticipate that our
modernization will be adversely impacted by the Act without the
proposed extension of time to comply.
Question 49. Have any public health assessments been done to
ascertain the impact of the CERCLA/RCRA/CAA exemptions to the health of
communities on and near bases?
Response. Because there is no effect on ongoing environmental
cleanup programs or on environmental compliance programs, there will be
no impact to health or the environment from the RRPI legislative
request. Known contamination migrating from operational ranges or
otherwise threatening drinking water sources or human health has been--
and would continue to be--addressed under the Defense Environmental
Restoration Program and installation-specific restoration plans. In the
future, we expect our range sustainment efforts will produce
information that will enable us to determine readily whether a
contamination problem emanates from an operational range.
With respect to the provisions of the RRPI related to the CAA, they
relate primarily to military readiness activities that will occur in
the future, such as missions realigned to bases from bases closed under
BRAC. As part of the realignment process, the military department that
is the proponent of the action will analyze CAA impacts as part of it's
assessment of the environmental consequences of the action pursuant to
the National Environmental Policy Act. However, as noted by EPA
Administrator Carol Browner in a June 17, 1997 letter to Secretary of
Defense William Cohen``. . . Defense sources are a small part of the
air quality problem. . . .'' Therefore, we do no anticipate that the
limited extension provided by the RRPI to the CAA conformity
requirement will significantly impact neighboring communities.
Question 50. Your agency has sought to rationalize the need for
Clean Air Act exemptions. In one case, DOD has asserted that air
quality regulations prohibit training with graphite smoke at Fort
Irwin, California. In actuality, however, such graphite smoke is
created by trailer-mounted generators that are classified as mobile
sources under the Clean Air Act, meaning they are not the purview of
air quality regulators. Please comment on this discrepancy.
Response. The Ft. Irwin example was used as an example of the
impact of Endangered Species Act requirements on readiness and
training, not Clean Air Act restrictions. At Ft. Irwin, the US Fish and
Wildlife Service (USFWS) is concerned about the potential dietary and
respiratory impact of graphite smoke on the desert tortoise. The Army
will not be able to use graphite smoke until studies are accomplished
to show the effects on desert tortoise. The USFWS and Ft. Irwin have
exchanged information on studies required. To date, protocols governing
the studies have not been established.
Question 51. What does the phrase ``under the jurisdiction, custody
or control of the Secretary'' mean in DOD's proposed definition of
range? Must the range be on land owned by the United States, or can a
range be under the jurisdiction, custody or control of the Secretary if
it is not on land owned by the United States? Provide citations to any
cases, statutes, or regulations that you rely on in answering this
question.
Response. The term ``jurisdiction, custody, or control'' is a term
of art from the world of Federal real property law and flows from the
requirements relating to real property accountability that Federal
property managers face. All Federal property is owned by, and title is
in, the United States; it is not owned by any particular agency: the
agency only manages the property. When we refer to land being owned by,
for example, the Air Force, we are really speaking in shorthand and
referring to real property accountability, not ownership.
The term ``jurisdiction, custody, or control'' is an expansive
term, applying to any property under the jurisdiction, or custody, or
control of the Secretary concerned. This means that it could apply to
leased property, i.e., privately owned land that we are using under a
lease or other similar legal agreement. It would also apply to lands,
such as national forest lands or refuge lands, that have been withdrawn
for military use. Such lands continue to be under the jurisdiction of
the original agency (USDA or DOI), but are currently under the
jurisdiction, custody, and control of the DOD. The language
``jurisdiction, custody, or control'' was used in defining the term
``operational range'' in 10 U.S.C. sec. 2710, which directs the
Secretary of Defense to develop an inventory of defense sites
containing unexploded ordnance, discarded munitions, or munitions
constituents. It is also used in DOD Directive 3200.15 in defining the
term ``operational range'' for purposes of establishing DOD's policy on
range sustainment.
This language is designed to capture all lands used by DOD for
ranges, but only while those lands are so used. For instance, private
land leased land to DOD for use as an operational range would be
covered by this definition, but only so long as the land continued to
be leased by DOD and used as an operational range in accordance with
the definition. As soon as it ceases to meet the requirements of the
definition--under the jurisdiction, custody, or control of the
Secretary concerned and either used for range activities or still be
considered to be a range and not to an incompatible use--it ceases to
be an operational range by operation of law. So, although range need
not necessarily be owned by the U.S., it does have to be under our
jurisdiction, custody, or control in accordance with some legal
agreement.
Question 52. Please provide a citation to the administrative or
statutory authority under which the Secretary designates land or water
on a range.
Response. Title 10, United States Code, Sec. 3013, 5013, and 8013,
gives the Secretaries of the Military Departments the responsibility
and authority to carry out various functions, subject to the authority,
direction and control of the Secretary of Defense. These functions
include ensuring the training of personnel. In carrying out their
training and other functions, the Secretaries are authorized to acquire
real property, construct facilities, and formulate and execute policies
and programs. The Federal Government has always taken the position that
the ability to acquire and designate areas as training ranges is
inherent in these responsibilities and functions.
Question 53. Which specific DOD facilities will be affected by the
suggested legislative changes? In addition, utilizing the definition of
``operational range'' in the bill, provide a list of all operational
ranges under the jurisdiction, custody or control of the Secretary. For
each range, provide:
<bullet> the location and size of the range;
<bullet> documentation of the administrative or legislative
decision designating the range;
<bullet> a notation that the range is currently being used, or the
date on which it was last used; and
<bullet> information as to whether any portion of any range is
located above a wellhead protection area designated by a State pursuant
to the Safe Drinking Water Act, or has been designated byte
Administrator of the EPA as a sole or principal drinking water source.
Response. All operational DOD ranges and training areas used for
readiness activities will be affected or potentially affected by the
proposed RRPI changes.
DOD currently lacks a complete inventory of ranges and their
environmental issues--a concern raised as part of GAO's report on
encroachment dated April 25, 2002. Because of these concern and as part
of the National Defense Authorization Act for Fiscal Year 2003,
Congress directed the Secretary of Defense to develop a plan to address
training constraints caused by limitations on use of our land, sea, and
air resources.
DOD is in the process of developing a more accurate and complete
answer to the number, location and size of the operational ranges in
the DOD inventory. The services have all been preparing a complete
inventory of their ranges over the past year. Based on this
information, DOD is compiling an overall DOD range inventory that will
put the range numbers for all the services into common terms. This
inventory information will be part of a report to Congress due in early
2004. This report will include:
-An assessment of the current and future training requirements of
their respective Service;
-A report on implementation of a Service range inventory system;
-An evaluation of the adequacy of current Service resources to meet
both current and future training requirements in the United States and
overseas;
-A comprehensive plan to address operational constraints resulting
in adverse training impacts caused by limitations on the use of, or
access to, land, water, air and spectrum that are available or needed
in the United States and overseas for training; and
-A report on, or specific plans for, designation of an office
within each of the military departments that will have lead
responsibility for overseeing implementation of the plan.
The Department's report will respond to a number of the factual
inquiries in your question.
Question 54. Can you tell the Committee what the DOD budget request
for INRMP development and, most importantly, implementation is for
2004?
Response. DOD does not break out INRMP development and
implementation cost projections from its overall budget requests for
Natural Resource programs. However, as required by the Sikes Act, we do
track how much is spent on INRMP implementation and include that
information for previous fiscal years in our Environmental Quality
Annual Report to Congress. For fiscal year 2100, our investment in
INRMP implementation was $40 million. In fiscal year 2001 it was $43
million. The fiscal year 2002 report is currently being prepared and
should be final in the near future. For conservation (natural and
cultural resource) programs overall, the Department has requested $143
million for fiscal year 2004.
Question 55. Can you identify the military facilities and the
species that the DOD proposal, if enacted, would impact:
Response. DOD lands host over 300 species on the Endangered Species
list, spread among a large number of installations. While our proposal
will only apply to species with designated critical habitat, now a
relatively small proportion of the 300 on our lands, the number of such
designations is projected to increase dramatically in coming years.
This proposal is therefore perhaps most significant in terms of future
decisions. We do not believe the proposals will adversely impact any
species; instead we will continue to effectively manage designated T&E
species nder approved INRMPs as opposed to critical habitat designation
at ranges that qualify for this approach.
Question 56. EPA estimates that 60,000+ people are dying
prematurely annually from fine particulate pollution. What share of
that pollution inventory comes from military facilities?
Response. As former EPA Administrator Browner said:
[I]t is clear that military training activities are actually among
the smallest sources of PM<INF>2.5</INF> in areas likely to have a fine
particle problem. While military activities contribute some primary
PM<INF>2.5</INF>, secondary particles such as sulfates are by far the
largest component of PM<INF>2.5</INF>. The major sources of fine
particles include sulfates from power plants and nitrate from power
plants and other large combustion sources.
.. Defense sources are a small part of the air quality problem and
provide a unique and critical need for the Nations' security. Letter
from Carol Browner, Administrator, Environmental Protection Agency, to
William Cohen, Secretary of Defense 2-3 (Jun 17, 1997).
With respect to our Clean Air Act proposal, any new emissions the
legislation would temporarily authorize :are typically less than .5
percent of the total emissions in air regions.
______
Responses of Benedict S. Cohen to Additional Questions from Senator
Boxer
Question 57. Repeatedly you argue that environmental provisions
have reduced military readiness. But, you have been unable to provide
examples where these laws have actually hampered military readiness.
You have given some examples in California where training activities
had to be modified to accommodate endangered species. Modification of
practices does not necessarily impact our readiness. Evidence that DOD
has had to modify its behavior is not the issue. The issue is specific
evidence that our military readiness has been compromised. I have yet
to see that evidence. GAO has yet to see that evidence. Where are the
data to support your claims?
Response. As I stated in my testimony, DOD needs to better quantify
how encroachment affects our test and training mission, and we are
actively working to develop a mechanism to quantify training
constraints caused by limitations on use of land, air, and sea
resources. However, there is a significant body of evidence that
readiness is being adversely impacted. GAO has recognized this fact.
While it is true that GAO raised a concern regarding DOD's ability to
precisely quantify readiness impacts, it is important to clarify that
its report explicitly states that encroachment is having demonstrable
adverse effects on readiness.
Critical habitat designation under the Endangered Species Act also
has vital implications for readiness. One instance in which the
damaging effects of training modifications on training has recently
been very precisely quantified and documented is Marine Corps training
at Camp Pendleton in California, where ``modification of practices''
has very clearly degraded training. Marines who trained at Marine Corps
Base (MCB) Camp Pendleton in the 1970's and 1980's report that
restrictions on training have increased markedly and that today's
training is much less realistic. The study completed in March 2003
validates these observations and found that, because of encroachment on
maneuver corridors, training areas and landing beaches, a Marine
Battalion Landing Team could only complete about 68 percent of the
Marine Corps' combat training standards, for non-firing tasks at Camp
Pendleton. Courts, based on complaints filed by environmental
litigants, compelled the Fish and Wildlife Service to re-evaluate ``not
prudent'' findings or many critical habitat determinations, and as a
result FWS proposed to designate over 56 percent of the 125,000-acre
Camp Pendleton and over 50 percent of the 12,000-acre Marine Corps Air
Station (MCAS) Miramar. 72 percent of Fort Lewis and 40 percent of the
Chocolate Mountains Aerial Gunnery Range were designated as critical
habitat for various species, and analogous habitat restrictions were
imposed on 33 percent of Fort Hood. At Fort Hood, our use of 150,000
acres of training land for training purposes is restricted because of
the requirement to protect habitat from any damage and the seasonal
presence of threatened and endangered species. At the Goldwater range
in Arizona, the Air Force already redirects or cancels numerous live-
drop missions every year to avoid jeopardizing the Sonoran Pronghorn
even though critical habitat has not yet been designated there. In
calendar year 2001, 32 percent of scheduled live-ordnance training
missions' at the Goldwater range were canceled or relocated to less-
optimum training targets. The use of less-optimum targets results in
degraded training. Designation of critical habitat for the pronghorn on
the range would further extend these restrictions on training and could
lead to fighter pilots with inadequate skills to safely accomplish
potential bombing missions.
DOD has relied upon more frequent and extensive ``work-arounds,''
which go beyond being an inconvenience to fundamentally undercut the
realism and quality of training. Among the many examples:
<bullet> Aircrews taking off, recovering or dropping ordnance from
non-tactical altitudes; examples include Naval Air Station Oceana,
Virginia, plus many other installations;
<bullet> Navy ships not being able to use their sonar equipment
during key training events, including training and testing activities;
<bullet> Soldiers not actually digging fighting positions or
equipment emplacements during basic and intermediate training (Fort
Hood and Camp Pendleton are only two of many thus restricted;
<bullet> In Hawaii, endangered species restrictions and NEPA-based
litigation at the Army's Makua Valley Military Reservation mean that
local units cannot meet training requirements. Specifically, units of
the 25th Infantry Division (Light) have to travel to mainland ranges to
complete Combined Arms Live-fire Exercises. As a result, other Hawaii-
based DOD components; Marine Corps, Army Reserve and National Guard,
have no access to Makua.
Question 58. Why do you need these waivers when all of these laws
have provisions that specifically exempt military activities in the
case of national security?
Response. A number of environmental statutes contain no wartime
waivers at all, such as the Marine Mammal Protection Act and the
Migratory Bird Treaty Act. However, even for those environmental laws
with an exemption, most statutes envisage that the national security
exemptions are to be rarely utilized. Invocation of an exemption is
characteristically to be based on ``the paramount interests'' of the
United States--an exceptionally high standard. Further, most national
security exemptions in current environmental laws provide relief that
is brief in duration and focuses on individual activities, facilities,
or pollution sources. Such exemptions are ill-suited to ongoing,
widespread actions, including many categories of military readiness
activities that individually would not meet the requisite standard for
an exemption, but which are cumulatively essential to maintaining
military readiness. The readiness activities we are concerned with are
not ``one-time'' exceptional events, but part of the day-to-day
training regimen for our forces.
Question 59. We have long heard that this administration is a
defender of State and local rights. However the DOD exemption proposals
are opposed by a wide variety of State and local organizations.
Is it correct that the National Association of Attorneys General
passed a resolution in March opposing DOD's exemptions from
environmental laws?
Response. That is correct. However, the resolution assumed a number
of things about our legislation that DOD did not in fact intend,
including a suggestion that the RRPI would preempt State and EPA
authority over a broad range of sites or activities, including DOD non-
readiness activities, DOE facilities, defense contractor sites, and up
to 16 million acres of former ranges. In reality, the RRPI provisions
related to munitions apply only to test and training at operational
ranges under the jurisdiction, custody, or control of the Department of
Defense. In any case, the Department and EPA have subsequently
completely revised our military munitions proposal in consultation with
State officials to clarify the limited scope of our legislation
(attached). To the best of our knowledge, neither NAAG nor any other
State officials' organization has expressed views on this new language.
Question 60. Is it correct that the State and local air pollution
regulators oppose DOD's exemptions from environmental laws?
Response. You are correct that STAPPA-ALAPCO has expressed concerns
about our Clean Air Act proposal. This concern is based on the
assumption that the Department can use Section 118 of the Clean Air Act
to ask for an exemption based on ``paramount interest of the United
States to do so''. The Department believes that it is not good public
policy to ask for exemptions to permit necessary activities for
military readiness. We believe that it is more prudent to address the
root problem. Again, opposition is also based on the assertion that DOD
seeks to exempt itself from environmental laws, and that opposition is
also misplaced. Although I made the statement in my written testimony
that DOD does not seek, and the RRPI.proposal does not contain,
provisions for exemptions from environmental laws, it bears repeating
here.
Question 61. Is it correct that the State and local water quality
regulators oppose DOD's exemptions from environmental laws?
Response. We are aware that officers of the Association of
Metropolitan Water Agencies, American Water Works Association, National
Association of Water Companies, and the Association of California Water
Agencies signed a letter in opposition to certain provisions of the
RRPI. Again, however, we believe that this opposition is based on
assumptions about RRPI that DOD does not intend. For example, their
concern that human health and environmental affects would have to occur
beyond the boundaries of an operational range before response action
could be taken does not reflect DOD's intentions. As noted in answers
to previous questions, Federal and State authority to act to protect
drinking water sources under the Safe Drinking Water Act are completely
unaffected. Similarly, the RRPI expressly preserves EPA's authority to
respond to imminent and substantial endangerment issues from munitions
and constituents on range pursuant to CERCLA section 106. DOD is
actively engaged in an ongoing dialog with these and other stakeholders
to clarify our intentions, and is revising our proposal to address
their concerns.
Question 62. Is it correct that Ingrid Lindemann, Councilmember
from Aurora, Colorado, and representative of the National League of
Cities finds that ``the ramifications of a blanket exemption for
military facilities and activities from such laws will be serious and
untenable at the local level''?
Response. Ms. Lindemann testified to that effect before this
Committee. For many of the same reasons noted in the previous three
responses, we believe she has misunderstood the scope and intent of the
RRPI. In addition to my responses to the previous questions, it bears
special note that Ms. Lindemann's written testimony suggests her belief
that the RRPI proposals related to RCRA and CERCLA would apply to
ranges that have been transferred. In fact, she makes special note that
our RCRA proposal would impact munitions disposal and cleanup at an
estimated 16 million acres of transferred ranges around the country.
This provision does not apply to transferred ranges. This is clearly
not the impact of the RRPI proposal since it specifically applies only
to ranges currently under the jurisdiction, custody and control of DOD,
not to ranges that have transferred out of DOD control.
Question 63. Does it concern the DOD that the there is widespread
local and State opposition to DOD's proposed exemptions?
Response. DOD is very concerned that there is opposition to our
proposal. A measure of our concern is the public outreach effort we
have undertaken regarding the RRPI initiative. We believe that engaging
in dialog with stakeholders regarding the purpose of the initiative
will serve to convince those interested in both the environment and
national defense that the RRPI is a narrow, targeted and reasonable
approach to balancing military readiness and environmental protection.
In addition, as noted above, DOD and EPA are extensively revising
several of our proposals to address these concerns. DOD has been
gratified by increasing State and local support for our proposals.
Question 64. The DOD exemption proposal before us would exempt DOD
from many of the environmental laws and regulations that apply to the
private sector. Is this administration abandoning the longstanding
policy that the Federal Government, including DOD, should be held to
the same environmental enforcement standards, enforcement and rules as
the private sector?
Response. DOD is subject to all Federal environmental laws. The
changes we seek would not affect DOD compliance with environmental laws
in the management of its infrastructure or industrial operations that
are similar to those of private companies. For example, DOD will
continue to comply with all applicable environmental laws in the way
that it runs its sewage treatment plants, paint booths, management of
industrial hazardous wastes, etc. And DOD will continue all
environmental cleanup programs. The military also has a unique
responsibility to prepare for and win armed conflicts--an activity
unlike any private organization, State, or local government--and has
land specially set aside to test and train for that purpose. The
changes we propose are narrowly focused on that testing and training,
i.e., on ``military readiness activities.''
Further, not only are the activities that the RRPI focuses on
unique to the military, the majority of the environmental requirements
that RRPI addresses do not impact the private sector in the same manner
as they affect Federal agencies, such as DOD. The conformity
requirements of the Clean Air Act have no private sector equivalent.
Critical habitat designation under the ESA can have mission-stopping
impacts on military installations, but has more limited consequences on
private lands. The flexibility given to commercial fisheries through
Incidental Take Reduction Plans under the Marine Mammal Protection Act
is not available to DOD.
Question 65. At how many current, and at how many former DOD sites
across the Nation are Superfund or RCRA being used to manage cleanup?
Response. The Defense Environmental Restoration Program (DERP)
contains 24,869 sites at active and BRAC installations and 4,827
Formerly Used Defense Sites (FUDS). 2,307 sites are in the Military
Munitions Response Program (MMRP) category of the DERP. 616 MMRP sites
are at active and BRAC installations and 1,691 are FUDS. The
Department's five environmental restoration accounts (Army, Navy, Air
Force, FUDS and Defense-wide) and the BRAC account are the source of
funding for cleanup requirements at these sites. The Resource
Conservation and Recovery Act (RCRA) and Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) proposals contained
in the Department's Readiness and Range Preservation Initiative (RRPI)
only apply to operational ranges and, if enacted, will not have any
impact on DOD's current DERP cleanup requirements.
Question 66. How many of these sites have perchlorate
contamination?
Response. There are no DOD sites under CERCLA 106 orders for
perchlorate. However, DOD is concerned and is studying the perchlorate
issue.
Question 67. At how many current, and at how many former, DOD sites
is the Safe Drinking Water Act being used to manage cleanups?
Response. The only site where SDWA is being used to manage a
cleanup is at the Massachusetts Military Reservation on Cape Cod,
Massachusetts.
Question 68. At how many of the current, and at how many of the
former, Superfund and RCRA sites would partial or total cleanup be
waived were the recommendations before us now already in place?
Response. None.
Question 69. At how many sites is EPA using its imminent and
substantial endangerment authority to oversee CERCLA cleanups? How many
of these are DOD sites? How many of these sites have perchlorate
contamination? How many of these sites are DOD perchlorate
contamination sites?
Response. EPA has never issued a unilateral administrative order
pursuant to CERCLA Section 106 (EPA's imminent and substantial
endangerment authority) to a DOD facility. We must defer to EPA
regarding the number of such orders it has issued for non-DOD
facilities.
______
Responses of Benedict S. Cohen to Additional Questions from Senator
Reid
Question 70. Is it DOD's position that DOD is bound by State safe
drinking water standards where there is no Federal standard in place?
Specifically, is DOD bound by a State safe drinking water standard for
perchlorate even if no Federal safe drinking water standard has been
promulgated?
Response. The answer to both of these questions is yes.
Question 71. As you know, the environmental laws within the
jurisdiction of the Senate Environment Committee and amended by the
Department's proposal each contain case-by-case exemption procedures.
Please list each case involving a Nevada operational range (as
currently defined by the Department) where such exemptions have been
sought under each of these laws (i.e., CAA, RCRA, CERCLA, and ESA), the
reason for the request, and the disposition of the request.
Response. No exemptions have been sought under either the CAA,
CERCLA, or the ESA. Section 6961 (a) of RCRA provides that the
President of the United States can 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.'' Since
1998, Presidents Clinton and Bush have annually exempted the United
States Air Force's operating location near Groom Lake, Nevada, from any
Federal, State, interstate, or local provision respecting control and
abatement of solid waste or hazardous waste disposal that would require
the disclosure of classified information to any unauthorized persons.
Presidents Clinton and Bush have found that it is in the paramount
interest of the United States to exempt the facility (the subject of
litigation in Kasza V. Browner (D. Nev. CV-S-94795-PMP) and Frost v.
Perry (D. Nev. CV-S-94-714-PMP)), from any applicable requirement for
the disclosure to unauthorized persons of classified information
concerning that operating location. The Presidential orders have stated
that nothing contained therein is intended to: (a) imply that in the
absence of such a Presidential exemption, RCRA, or any other provision
of law, permits or requires disclosure of classified information to
unauthorized persons; or (b) limit the applicability or enforcement of
any requirement of law applicable to the Air Force's operating location
near Groom Lake, Nevada, except those provisions, if any, that would
require the disclosure of classified information.
This annual exemption is an excellent illustration of the serious
limitations of exemptions. Because of one lower court decision which
both the Clinton and Bush Administrations regarded as clearly
erroneous, a decision memorandum must annually be sent up the chain
through the Chief of Staff of the Air Force to the Secretary of the Air
Force, then through the Defense Department General Counsel to the
Deputy Secretary of Defense, then to the National Security Advisor, and
the Counsel to the President, and finally to the President. Such a
cumbersome, months-long process is obviously completely inadequate to
safeguard widespread, ongoing test and training activities that occur
on virtually every active range.
Question 72. The Clean Air Act exemptions sought by the Department
would remove clean air protections for at least 3 years for communities
surrounding operational ranges, a term which it appears is within the
discretion of the Department to modify or expansively interpret to
include ranges not in current operation. It further provides that
Department air emissions newly exempt under the proposal need not be
offset by other pollution sources, thereby assuring a net increase of
emissions localized around operational ranges. Please explain what
measures the Department intends to take to protect the communities
surrounding those facilities from harmful exposure to ozone,
particulate matter, carbon monoxide and the other criteria air
pollutants.
Response. The Department is not seeking to remove existing Clean
Air Act protections. Nor does the proposal alter the ultimate
obligation on the part of the DOD installation to conform its military
readiness activities to the SIP. The legislation only provides an
extension of time to demonstrate that conformity. Well over 90 percent
of the sources of criteria pollutant emissions in a given non-
attainment or maintenance area are usually private or non-Federal
sources not subject to CAA Sec. 176(c)'s conformity provision. The DOD
therefore has limited ability to protect surrounding communities from
the major source of harmful air emissions. With respect to our own
emissions, Clinton Administration EPA Administrator Carol Browner
recently affirmed that ``Defense sources are a small part of the air
quality problem . . . .'' Letter from Carol Browner, Administrator,
Environmental Protection Agency, to William Cohen, Secretary of Defense
2-3 (Jun 17, 1997). Your concern over emissions associated with
``ranges not in current operation'' is misplaced since military test
and training activities that might generate emissions will by
definition not occur on such inactive ranges; should other military
readiness activities besides test and training occur on such inactive
ranges, they would characteristically result in the range being
transferred from inactive range status to non-range status. (This is
because one of the tests for an inactive range is that it cannot have
been put to a use inconsistent with future use as a range.) Finally,
the environmental planning processes required by the National
Environmental Policy Act (NEPA) will still be implemented for new
military readiness activities, and that NEPA process will identify-
those opportunities that the installation will have to mitigate or
reduce its air pollutant emissions.
Question 73. The small community of Fallon, Nevada, is currently
the subject of the first government-led cancer cluster investigation in
over 20 years. In the past several years, 16 children have fallen ill
with leukemia. Three children have died.
A. Under the Department's proposal, is it the case that the Fallon
Naval Air Station would be exempt from Clean Air Act compliance for at
least-three years?
B. How would the Department propose to assure that residents of
Fallon are not exposed to harmful levels of air pollution from the Air
Station during that time period?
C. Similarly, is it the case that under the Department's proposal,
contamination from the Kinder-Morgan jet fuel pipeline would similarly
be exempt from regulation under RCRA and cleanup under CERCLA?
If you do not believe that exemptions would apply in cases A, B, or
C, please provide the rationale--based on the specific language of the
Department's proposal--which would ensure that these laws applied to
activities at the Air Station.
Response. A. Our CAA provision does not apply to emissions
associated with non-military readiness activities like construction,
power generation, wastewater treatment, industrial processes, or even
activities in direct support of military readiness like aircraft
fueling and maintenance. DOD's proposal provides the following
definition of ``military readiness activities":
The term ``military readiness activities'' includes all training
and operations that relate to combat, and the adequate and realistic
testing of military equipment, vehicles, weapons, and sensors for
proper operation and suitability for combat use. The term does not
include the routine operation of installation operating support
functions, such as administrative offices, military exchanges,
commissaries, water treatment facilities; storage, schools, housing,
motor pools, laundries, morale, welfare and recreation activities,
shops, avid mess halls, nor the operation of industrial activities, or
the construction or demolition of such facilities.
In addition, no existing military readiness activity at Fallon is
subject to our proposal. The RRPI Clean Air Act provision provides
``[i]n all cases in which the [conformity] requirements of section
176(c) of the Clean Air Act would have applied to proposed military
readiness activities, the Department shall not be prohibited from
engaging in such military readiness activities, but shall . . . ensure
that military readiness activities conform with the requirements of
section 176(c) within 3 years of the date new activities begin.''
(emphasis added). Only new military readiness activities would receive
a temporary grace period for compliance with one provision of the Act.
Finally, our proposal does not modify any provision of the Clean Air
Act other than the conformity provision of section 176(c). All other
provisions are unaffected; if an activity requires an air permit, must
undergo new source review, or meet any other requirement of the CAA
other than conformity, that requirement must still be met.
B. As described above, the range of activities at NAS Fallon that
would be subject to our provision is quite small. Indeed, unless and
until new activities occur at Fallon, no activities there would be
covered, and there would be no increase in emissions attributable to
our provision. Even should new military readiness activities occur,
they are likely to generate only small increases in emissions, as
discussed elsewhere in my testimony. As Carol Browner, Administrator of
EPA during the Clinton Administration, has noted, ``Defense sources are
a small part of the air quality problem `` Letter from Carol Browner,
Administrator, Environmental Protection Agency, to William Cohen,
Secretary of Defense 2-3 (Jun 17, 1997)
C. It is not the case that the Kinder-Morgan jet fuel pipeline will
be exempt from regulation under our proposed revisions to RCRA and
CERCLA. Our RCRA and CERCLA provisions apply only to ``military
readiness activities.'' As noted above, such activities do not include
``the routine operation of installation operating support functions,
such as . . . the operation of industrial activities . . . .'' The
operation of a fuel pipeline clearly falls outside the scope of the
definition of a ``military readiness activity'' such language.
Question 74. As you may know, the 1,375 square mile Nevada Test
Site has been a critical facility,--for the training of our military
and the testing of weapons. The site was first established in 1940 as
the Las Vegas Bombing and Gunnery Range. In 1950, the search for a
continental U.S. site for nuclear testing led to the establishment of
the Nevada Test Site by President Truman in roughly the same location.
From 1951 to 1992, approximately 928 nuclear and related tests were
conducted at NTS.
Following the moratorium on nuclear testing in 1992, the site has
continued to be critical to the training of our military personnel and
testing of munitions. The NTS also hosts a Hazardous Materials Spill
center where chemicals and other toxic substances are released into the
air and ground to test their behavior and cleanup methods. Further, NTS
hosts a facility for the testing and cleanup of biological
contaminants. Finally, the NTS is now one of the nation's premier
training centers for counter-terrorism in the United States.
On a recent visit to NTS, officials indicated that NTS has no
difficulties conducting its operations within the confines of the
current environmental laws and the case-by-case exemptionr procedures
those laws afford. NTS obtains permits under the CAA and other laws to
conduct its training and testing of munitions and chemicals. When
endangered desert tortoises are discovered on NTS, they are relocated.
Perhaps more than any other site in the nation--considering its
nuclear, chemical and biological testing history and its extensive
training activity--NTS conducts a broad range of activities that
implicate the environmental laws that are the subject of the Department
of Defense proposal, yet has demonstrated its ability to use the
exemptions provided within them to enable training and testing to
continue unhindered. That ability is not a function of the remoteness
of the NTS, as the exemptions relate to activities conducted on the
site.
If a facility like NTS can conduct such a broad range of activities
within the ambit of the , environmental laws the Department would amend
in the name of readiness, why is the Department unable to replicate the
NTS example at its other facilities? Has the Department sought the
assistance of NTS officials in assisting at other operational ranges?
Response. The Department does not seek to exempt its readiness
activities from environmental laws; rather, it seeks to clarify and
confirm existing regulatory policies that recognize the unique= nature
of our activities. The RRPI proposal codifies and extends EPA's
existing Military Munitions Rule; confirms the prior Administration's
policy on Integrated Natural Resource Management Plans and critical
habitat; codifies the prior Administration's policy on ``harassment''
under the Marine Mammal Protection Act; ratifies longstanding State and
Federal policy concerning regulation under RCRA and CERCLA of our
operational ranges; and gives States and DOD temporary flexibility
under the Clean Air Act. The proposals are of the same nature as the
relief Congress provided under the Migratory Bird Treaty Act last year,
which codified the prior Administration's position on DOD's obligations
under the Migratory Bird Treaty Act. The Department is, and will
remain, subject to precisely the same regulatory requirements as the
private sector when we perform the same types of activities as the
private sector. We seek alternative forms of regulation only for the
things we do that have no privatesector analogue: military readiness
activities.
Specifically with respect to NTS, the Department is proud of the
strong environmental program there and the success it has achieved in
accomplishing its military mission while protecting the environment.
The Department strongly believes that NTS, like other installations,
would face critical problems executing its vital military mission were,
for example, the Fish and Wildlife Service compelled by litigation to
designate critical habitat on the facility notwithstanding its
excellent Integrated Natural Resource Management Plan; or were
litigants able to secure court decisions that the test and training on
the facility were actually waste management activities under RCRA or
``releases'' under CERCLA, triggering crippling regulatory
requirements; or State and Federal officials denied the flexibility
under the Clean Air Act to temporarily accommodate modest emissions
increases resulting from new military readiness activities. Our RRPI
proposals simply seek to assure that these destructive outcomes, which
are already threatening bases across the country, do not occur at NTS
or elsewhere.
Question 75. The Department's RCRA proposal at section
2019(a)(2)(D) provides that constituents of munitions are not solid
wastes if they ``are deposited, incident to their normal and expected
use, of an operation range, and are promptly rendered safe or
retrieved.''
A. Is the standard ``promptly rendered safe or retrieved'' a legal
term of art or otherwise defined in environmental law or other Federal
laws?
B. If not, what does this term mean?
C. Who will determine whether a munition or constituent thereof has
been rendered ``promptly rendered safe or retrieved''? What role, if
any, does the Department anticipate for the expert agency in these
matters--EPA--to have over making this judgment?
D. Does a munition, etc., need to originate from an operational
range to be covered by the exclusion envisioned in section
2019(a)(2)(D)?
Response. A. Yes, this standard is taken from EPA's Military
Munitions Rule, which states ``a used or fired munition is a solid
waste . . . if the munition lands off-range and is not promptly
rendered safe and/or retrieved.'' 40 C.F.R. 266.202(d). The Munitions
Rule was adopted by the Clinton Administration in 1997 after extensive
consultation among Federal agencies, State regulators, and other
stakeholders. The rule has subsequently been adopted by over 30 States.
B. See A above.
C. The status of off-range fired munitions is an explosives safety
determination. The fact that the item may have malfunctioned in the
course of its use raises concerns first for the safety of the public
and the technicians whose job it is to eliminate the explosives safety
hazard. The Military Munitions Rule explicitly acknowledges the role
that explosives or munitions emergency response personnel and the
Department of Defense have under such circumstances. See 40 CFR 260.10;
262.10(i); 266.201';'262.20(f); 263.10(e); 264. 1 (g)(8)(i)(D); and
265. 1 (c)(1 1)(i)(D). Likewise, the National Contingency Plan
recognizes DOD as the ``removal response authority with respect to
incidents involving DOD military weapons and munitions or weapons and
munitions under the jurisdiction, custody, or control of DOD.'' 40 CFR
300.120(d). In each instance, the determination as to explosives safety
matters rests with DOD, while EPA provides regulatory oversight.
D. As the portion of our proposal you have quoted above states the
munitions must be, ``deposited . . . off an operational range.''
Characteristically, such munitions would also originate on-range, in
the sense that the source of the munition--e.g., a rifle, artillery
piece, or aircraft would be on-range at the time the munition was
fired. However, this provision would also apply were the platform for
the munition delivery was off-range at the time of firing. For example,
if naval gunfire from a ship located off-range landed outside the range
that was its target, this provision would nevertheless apply were the
munition promptly rendered safe or retrieved. This would also be the
case if a long-range stand-off munition were fired from and off-range
aircraft and landed outside the range that was its intended target.
As noted above, this treatment of off-range munitions was adopted
by EPA under the Clinton Administration and has subsequently been
adopted by a large majority of the States. It would therefore continue
to apply to our ranges and munitions whether or not our RRPI proposal
is adopted.
Question 76. The Department's RCRA proposal at section 2019(a)(3)
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the
legal requirements applicable to explosives, unexploded ordnance,
munitions, munition fragments, or constituents thereof that have been
deposited on an operational range once the range ceases to be an
operational range.''
What standards and process does the Department use and apply to
determine whether a range ceases to be ``operational''? Please provide
me with a list of examples of ranges that were declared by the
Department to be no longer operational.
Response. Although the precise details of the processes applied by
each military department to determine whether a range is no longer an
operational range may differ, the basic underlying standard is as
represented by the legislative proposal of the Department to define
``operational range''. That definition requires that a range be used
for range activities or, if not currently used for range activities, be
capable of being and intended to be used for range activities; it also
requires that the range be under the jurisdiction, custody, or control
of the Secretary concerned. If an operational range is put to a use
that is incompatible with range activities or if it leaves DOD control,
it ceases to be an operational range. Because the term ``operational
range'' is relatively new, there is no example of a range being
declared as non-operational. There are, however, numerous examples of
ranges being closed, which is the prior terminology used when an
operational range ceased to be an operational range. In recent times,
many of those ranges were the result of base realignment and closure
actions, such as the artillery range at the former Fort Ord in
California. Other ranges were closed due to their no longer being
either necessary because of changes in mission or viable because of
encroachment. Many of these ranges qualify as Formerly Used Defense
Sites (FUDS) because they were closed many years ago.
Question 77. The Department's RCRA proposal at section 2019(a)(3)
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the
legal requirements applicable to explosives, unexploded ordnance,
munitions, munition fragments, or constituents thereof that have been
deposited on an operational range once the range ceases to be an
operational range.''
Should the Department face a significant contamination problem at
an operational range that it no longer needs to maintain for training
and readiness (or other DOD purpose), what incentive does the
Department have to declare that range non-operational and thereby
trigger cleanup responsibility under RCRA?
Response. Both the existing Military Munitions Rule definition of
``inactive range'' and our proposed statutory definition of that term
provide a strong incentive for DOD not to maintain unneeded inactive
ranges, since those definitions require the Department to avoid any
current use of the land that would be inconsistent with its future use
as a range. EPA and DOD carefully considered this issue during the
promulgation of the MMR under the Clinton Administration, and concluded
that the MMR's three-part test for when a range was inactive was a
sufficient safeguard against unnecessarily maintaining ranges in
inactive status to avoid incurring cleanup costs.
By the same token, your question presumes that DOD has little, or
no obligation or incentive to clean up contamination on inactive
ranges. DOD policy reflects our understanding that it is more cost-
effective to clean up contamination on both active and inactive ranges
before it has migrated than to wait until it crosses the range
boundary. As part of its fiscal year 2004 Defense Planning Guidance,
the Department has initiated an effort to assess potential hazards from
offrange munitions and begin remediation by fiscal year 2008. This will
include characterization of potential areas of munitions contamination,
as well as consideration of hydrology and potential areas associated
with drinking water supplies. Our RRPI proposal explicitly waives its
protections in the event of off-range migration of munitions
constituents, providing a powerful incentive for the Department to
proactively cleanup ranges to prevent such migration and the loss of
the RRPI protections. These incentives are powerfully reinforced by
existing State and Federal authority under the Safe Drinking Water Act
(SDWA), which the RRPI does not affect. Under Section 300i of the SDWA,
EPA may issue such orders as it deems necessary to protect against not
only actual but also ``likely'' contamination of drinking water
sources, as the Agency has done at Massachusetts Military Reservation.
Finally, RRPI preserves EPA's similar order authority under Section 106
of CERCLA. All of these authorities and policies provide powerful
incentives for DOD to assess and cleanup contamination on even inactive
ranges.
Question 78. The Department's RCRA proposal at section 2019(a)(3)
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the
legal requirements applicable to explosives, unexploded ordnance,
munitions, munition fragments, or constituents thereof that have been
deposited on an operational range once the range ceases to be an
operational range.''
Would there by any way to legally complete the Department to
declare the site nonoperational and thereby trigger cleanup
responsibility under RCRA?
Response. DOD believes that litigants could not force the
Department to designate a range as nonoperational. However, as
discussed below, citizens, EPA, and States and localities could compel
cleanup, even of an operational range, where contamination was
threatened. Moreover, EPA would retain the right to use the existing
interagency process if it believed DOD was improperly categorizing a
range as inactive to avoid cleanup costs.
Question 79. The Department's RCRA proposal at section 2019(a)(3)
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the
legal requirements applicable to explosives, unexploded ordnance,
munitions, munition fragments, or constituents thereof that have been
deposited on an operational range once the range ceases to be an
operational range.''
Could a community surrounding such a facility legally compel in any
manner the cleanup of that site?
Response. Under our RRPI proposal, a community or citizen could
invoke RCRA remedies to address any contamination migrating off-range
that presented an imminent and substantial threat to them hich DOD was
not addressing under CERCLA.
Question 80. Similarly, the Department's CERCLA proposal excludes
from the definition of release--the legal trigger for action under
CERCLA--``the deposit or presence on an operational range of ny
explosives, unexploded ordnance, munitions, munitions fragments, or
constituents thereof t at are or have been deposited thereon incident
to their normal and expected use and remain thereon.''
Should an operational range posing contamination problems become
unnecessary or unable to be used for training and readiness (or other
DOD purpose), what incentive would the Department have to declare that
range non-operational and thereby trigger cleanup responsibility under
CERCLA?
Response. Please see my answer to Question 77. The same incentives
would exist in this case as well.
Question 81. Similarly, the Department's CERCLA proposal excludes
from the definition of release--the legal trigger for action under
CERCLA--``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.''
Would they be any way to legally compel the Department to declare
the site nonoperational and thereby trigger for force cleanup
responsibility under CERCLA?
Response. Please see my answer to Question 78.
Question 82. Similarly, the Department's CERCLA proposal excludes
from the definition of release the legal trigger for action under
CERCLA--``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.''
Could a community surrounding such a facility legally compel in any
manner the cleanup of that site?
Response. Please see my answer to Question 79.
Question 83. Please describe the Department's definition of
``operational range,'' the authority for such definition, and what
constraints--if any--exist on the Department modifying this definition.
Response. The proposed definition of ``operational range'' is taken
from the already enacted definition of the term in 10 U.S.C. 2710. The
definition in 10 U.S.C. 2710 was designed specifically for that section
and, in transposing the definition to apply to all of Title 10, it was
necessary to slightly alter it to make reference to the ``Secretaries
concerned'' because operational ranges are real estate under the
jurisdiction, custody, and control of the Military Departments.
The proposal was recently further revised to move the requirement
that a range be ``under the jurisdiction, custody, or control'' to the
beginning of the definition so that this important qualification would
apply to both active and inactive ranges, rather than the original
version which only had the qualifier apply to inactive ranges. It was
not the intent of the Defense Department to have ``under the
jurisdiction, custody, or control'' apply only to inactive ranges, and
the U.S. Environmental Protection Agency noted that the original
language would allow the definition to apply to privately controlled
active ranges. Since it is the intention of the Defense Department that
the definition only apply to DOD ranges and not to those of any private
entity, such as a Defense contractor, we rearranged the wording to
ensure there was no confusion. As currently proposed, the language
clearly provides that an operational range must, in all instances, be
under the jurisdiction, custody, or control of the Defense Department.
This excludes the possibility of a private entity claiming that a range
under its control is an operational range.
As background, the term ``operational range'' was developed within
the Defense Department to allow us to clearly delineate the difference
between our ranges and all other property. In the past, various terms
had been applied to refer to various types of properties, primarily in
the context of the presence of unexploded ordnance (UXO). Such terms
included ``active range,'' ``inactive range,'' ``closed range,''
``transferred range,'' and ``transferring range.'' These terms were not
particularly accurate and had the significant defect that they only
referred to lands that are or once were ranges. It happens that UXO can
be located on many types of properties and many of those properties
were never ranges. It was the desire of the Defense Department to
ensure that in discussing the subject of UXO, we included all locations
where it might be located, not just ranges and former ranges. So it was
our intention to adopt terms that would make a clear distinction
between those lands currently used as ranges and all other properties,
whether those properties were former ranges or not and without regard
to whether those properties were still military lands.
Question 84. Under the Department's proposal, what authority would
exist to address perchlorate contamination of groundwater before
contaminated groundwater emanated from the confines of an operational
range? If there are other such authorities, may they be invoked by
States or by concerned citizens?
Response. The Department of Defense is committed to addressing any
contamination that poses an unacceptable risk to human health and the
environment. If, for any reason, perchlorate in the groundwater within
the confines of an operational range poses an imminent and substantial
danger to the public health or welfare, the DOD has the responsibility
to take appropriate action under section 104(a)(1) of CERCLA.
Additionally, under the Safe Drinking Water Act (SDWA), the EPA
Administrator is empowered to take action necessary to protect the
public health from an imminent and substantial endangerment created by
a contaminant that is present in, or likely to enter, an underground
source of drinking water. EPA has used the latter authority in issuing
an order at the Massachusetts Military Reservation to address
perchlorate contamination in the groundwater.
Question 85. In questioning during the hearing, Senator Inhofe
indicated that the exemptions in our environmental laws must be granted
by the President. You seemed to agree with him in that assessment. Is
there any reason why the President couldn't delegate this
responsibility to a lower official?
Response. I believe the President could delegate his authority in
accordance with title 3 United States Code, sections 301 and 302.
Nevertheless, even a delegation of all such authorities to the
Secretary of Defense does not satisfy the concerns addressed by the
RRPI initiative. Most national security exemptions in current
environmental laws provide relief that is brief in duration and focused
on individual activities, facilities, or pollution sources. Such
exemptions are illsuited to ongoing, widespread actions, such as
military readiness activities that are long-term, continuous, and
ubiquitous--such as the live-fire test and training that occurs at
virtually all our ranges.
Question 86. Please provide each example where P.L. 105-85 has been
invoked by the Secretary of Defense. That law gives the Secretary of
Defense the general authority to suspend any administrative action that
would have significant adverse effect on the military readiness of any
of the armed forces . . . ``10 U.S.C. Sec 2014
Response. The Secretary has never invoked this authority, for two
reasons. First, the provision largely codifies the inherent ability
executive branch officials have always possessed to consult concerning
proposed actions and, in the event of unresolved disputes, to alleviate
such disputes for resolution. The Defense Department engages in such
consultation on a daily basis, as it did prior to enactment of this
authority. The specific innovation included in Section 2014 has proven
of limited use because it permits DOD to suspend other agencies'
administrative actions for at the most 5 days. Experience has shown
that resolution or elevation of disputes of any complexity cannot be
accomplished on such a time schedule. For example, DOD's work with the
Interior Department to resolve disputes over proposed critical habitat
designation at Camp Pendleton and at NAS Miramar consumed months of
work at all levels of both agencies.
Question 87. You noted in testimony before the committee that 10
U.S.C. Sec 2014 provides the Department no defense in litigation.
Please provide a list of active litigation concerning the laws the
department seeks to amend and a brief summary describing its subject.
With respect to resolved litigation, please describe the disposition of
that litigation. (You indicated in your testimony that no litigation
thus far has been resolved against the Department.) Please distinguish
between litigation brought under each of the four environmental laws
(CAA, RCRA, CERCLA, and ESA) implicated by the Department's proposal
(and in EPW operations under other authorities (State law, local land
use law, etc.) and for the purpose of limiting noise and munitions
training.
Response. In response to an inquiry from the Chairman of the
Committee on Government Reform, the Department of Justice prepared case
summaries of actions bought against the Department of Defense under
various environmental statutes (attached). As you know, the Department
of Justice represents Federal agencies in litigation brought against
them. We have referred'these summaries to the military departments for
their review and assessment to determine how the RRPI would impact
their outcome, and for supplementation as appropriate.
Question 88. Please provide a list of each Defense Department
operational and non-operational range site, Formerly Used Defense Site
(FUDS), joint contractor-DOD owned sites where perchlorate production
and/or contamination exists. What estimate, if any, has DOD conducted
concerning the cleanup costs of such contamination?
Response. Efforts to survey for perchlorate occurrence are
described in EPA's Perchlorate Environmental Contamination:
Toxicological Review and Risk Characterization, dated 16 Jan 02. The
document is available at the following web site:
http://cfpub.epa.p,ov/ncea/cfm/recordisplav.cfm?deid=24002 Figure
1-3 identifies locations of specific perchlorate manufacturers or other
users identified through responses to EPA Information Requests from
current manufacturers and through investigations by State and local
authorities, and Figure 1-4 identifies locations of reported
environmental releases of perchlorate to groundwater, surface water, or
soil. Table 1-1 shows occurrences and potential sources of perchlorate
releases to the environment as of November 2001, including DOD
locations. Cleanup costs will depend upon the cleanup standards
established by State or Federal regulatory agencies, and could reach
billions of dollars, representing a significant portion of the DOD
budget.
EPA's assessment guidance does not establish cleanup standards. The
1999 Interim assessment guidance specifically recommends that ``risk
assessors and risk managers continue to use the standing provisional
RfD range of 0.0001 to 0.0005 mg/kg-day for perchlorate related
assessment activities.'' In absence of site specific risk assessment
factors, this provisional RfD range can be converted to a preliminary
remediation goal of 4-18 ppb, and is a screening tool and/or point of
departure in performing site-specific risk assessment activities. For
example, at cleanups conducted pursuant to CERCLA, the NCP (40 CFR
300.430(e) (2) (i)) states, ``Preliminary remediation goals should be
modified, as necessary, as more information becomes available through
the RI/FS:'' Under CERCLA, risk managers consider other factors in
determining remediation requirements, such as cost, effectiveness,
community acceptance, protectiveness, and implementability of remedial
alternatives. Thus, for completed pathways of exposure, results of the
site-specific risk assessment are used to establish acceptable exposure
levels for a site, and are evaluated along with other factors in the
NCP in selecting remedial alternatives. The preliminary nature of the
RfD and the process for considering perchlorate for regulation under
the Safe Drinking Water Act leave uncertainty for current response
actions. Under these circumstances, it is appropriate for remediation
managers to carefully consider focusing their efforts on cost-effective
measures to disrupt human exposure pathways to mitigate human health
risk while development of regulatory standards proceeds. [from EPA's
Q&As: http://www.epa.gov/swerffrr/documents/perchlorate qa.htm]
Question 89. In its June 2002, report entitled: Military Training:
DOD Lacks a Comprehensive Plan to Manage Encroachment on Training
Ranges, the General Accounting Office found that ``DOD officials
believe that encroachment of incompatible civilian activities
compromises the effectiveness of their training activities . . . DOD
officials report that local residents have filed lawsuits because they
believe that military operations have impacted their property's value
or restricted its use.'' GAO at 8. Several complaints made by the
Department to the GAO involved non-environmental related matters (or
matters not addressed in the Department's proposal) such as competition
for frequency spectrum, noise abatement requirements, and incompatible
nearby land uses. GAO highlighted that ``[m]any encroachment issues
result from or are exacerbated by population growth and urbanization.''
GAO at 9. And that ``DOD is particularly affected because urban growth
near 80 percent of its installations exceeds the national average.
'According to DOD officials, new inhabitants near installations often
view military activities as an infringement of their rights, and some
groups have organized in an effort to reduce range operations such as
aircraft and munitions training.'' Id.
What provisions of the Department's proposal would affect local
land use decisions made surrounding operational ranges? Would the
Department's proposal limit the population growth near operational
ranges? If so, how?
Response. No provisions of this year's proposal would affect local
land use decisions. However, last year Congress passed two provisions
which were concerned with land use. One of those provisions gives DOD
the authority to enter into third party partnerships with either
nongovernment organizations or State and local governments for the
purposes of creating conservation easements around our training ranges.
The second allows the Department to convey excess DOD land to a
conservation organization or local entity for the purposes of
conservation.
__________
Statement of Hon. John Peter Suarez, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency
Mr. Chairman and members of the committee: Thank you for inviting
me to speak with you today on behalf of the U.S. Environmental
Protection Agency (EPA) about the Administration's proposed National
Defense Authorization Act of Fiscal Year 2004. We believe the proposed
bill appropriately addresses two important national priorities:
military readiness and the protection of human health and the
environment. These priorities can both be achieved at the same time,
and we appreciate the Defense Department's willingness to work with us
to craft the proposals before you today.
As you know, the proposed bill would make changes to certain
pollution control laws that EPA administers and to laws concerning
wildlife protection and habitat preservation, which are the province of
other Federal agencies. I'll confine my remarks here today to the laws
under EPA's jurisdiction.
In the wake of September 11th, we understand more than ever the
importance of military readiness in combating traditional and emerging
foes. Both EPA and DoD leadership recognize the vital importance of
both the mission of protecting human health and the environment and the
mission of protecting national security. Both believe that neither
mission should be sacrificed at
the expense of the other. Toward that end, EPA and DoD have for
years worked cooperatively toward achieving these goals, with tangible
benefits to the American people.
The bill before this committee is the result of just such
collaboration. Together, the two agencies resolved key issues in a way
that allows the Services to continue to ``train the way they fight,''
while protecting the health of our citizens and safeguarding our
natural resources. Indeed, we have recently reached agreement with DoD
on language clarifying that the proposed changes to solid waste and
Superfund laws apply only to operational ranges under the jurisdiction
and control of the military services. The Administration has cleared
this language and intends to send it to Congress in the near future.
This action underscores the Administration's interest in keeping any
changes limited and sharply focused.
Today, I would like to highlight for the committee several of these
proposed statutory changes the two agencies developed to facilitate our
twin missions.
Proposed changes to the Clean Air Act provide the armed forces with
needed flexibility, while protecting air quality
EPA recognizes that military readiness depends on DoD's ability to
move assets and materiel around the Nation perhaps on short notice.
Such large-scale movements of people and machines may have impacts on
State Implementation Plans (or SIPs) for air quality.
Accordingly, EPA and DoD developed proposed changes to the Clean
Air Act's SIP provisions to allow the armed forces to engage in such
activities while working toward ensuring that its actions are
consistent with a SIP's air quality standards. Under the proposed bill,
the armed forces would still be obliged to quantify and report their
impacts on air quality prior to initiating the readiness activity, but
would be given 3 years to ensure that their actions are consistent with
a given state's SIP. We believe this compromise effectively addresses
military readiness concerns, while ensuring timely compliance with air
quality standards.
Proposed changes to RCRA will allow flexible and appropriate munitions
oversight
The Administration's bill also proposes two changes to the Resource
Conservation and Recovery Act, or RCRA, the nation's solid and
hazardous waste law. First, the bill contains language that would
change the statutory definition of ``solid waste'' under RCRA to
provide flexibility for DoD regarding the firing of munitions on
operational ranges, while clarifying that the definitional exemptions
are not applicable once the range ceases to be operational. This change
comports with existing EPA policy and the Military Munitions Rule that
have defined EPA's oversight of fired munitions at operational ranges
since 1997. The bill specifically maintains the ability of EPA, the
states and citizens to take actions against the U.S. Government in
accordance with the law in the event that munitions or their
constituents migrate off-range and may pose an imminent and substantial
endangerment to human health or the environment, if such materials are
not addressed under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA).
Second, the agencies worked together to craft a clear, common-sense
definition of ``range.'' Under the revised definitions of ``solid
waste'' and ``range,'' the armed forces will have statutory assurance
that EPA will not intervene in the firing of or training with
munitions, while the public may rest secure in the knowledge that EPA,
states and citizens have authority to take action against the U.S.
Government in accordance with the law if munitions pose a threat off-
range or after a range is closed.
The history of interaction between EPA and DOD demonstrates that
the two can work together effectively to achieve their respective
missions, and this should instill confidence that the two agencies will
continue to work together well to carry out those missions under the
proposed legislation. EPA has in only one instance found it necessary
to take an enforcement action that resulted in the cessation of live
fire training at a military base namely, at the Massachusetts Military
Reservation (MMR) on Cape Cod, Massachusetts. There, EPA took action
under the Safe Drinking Water Act when it determined that the
groundwater aquifer underlying MMR, the sole source of drinking water
for hundreds of thousands of Cape Cod residents, was threatened with
contamination and only after efforts to support voluntary action failed
to stop the spread of contamination. Today at MMR, EPA is overseeing
cleanup work to ensure that the drinking water supply for Cape Cod
residents meets all relevant standards now and in the future. In
response to EPA's decisions, the Defense Department shifted some of
this training to another facility and limited its training at MMR to
using small arms, as well as other training without using explosives,
propellants and pyrotechnics.
Analogous changes to CERCLA will preserve the Agency's Superfund
authority to address contamination which presents an imminent
and substantial endangerment
The Administration's bill proposes analogous changes to the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), also known as the Superfund law. It would exempt from the
definition of ``release'' under CERCLA explosives and munitions
deposited during normal use while on an operational range. It is
important to note that EPA would retain authority to take action to
abate an imminent and substantial endangerment to public health and the
environment due to the deposit or presence of explosives and munitions
on an operational range. As with the proposed changes to RCRA, the
change to CERCLA affords flexibility to the armed forces in handling
munitions at operational ranges, but ensures that EPA has the ability
to act when necessary to address the most important public health and
environmental concerns.
Ongoing collaboration on munitions
Meanwhile, EPA continues to collaborate with DoD and state and
tribal regulators to develop a new approach to cleaning up ordnance,
explosives and munitions at non-operational ranges throughout the
United States. This new approach, an expected product of the Munitions
Response Committee (MRC), is designed to work within the framework of
existing Federal and state authorities. Under the new process, Military
Departments, EPA, Federal Land Managers, and the states and tribes will
coordinate, where appropriate, and integrate their respective statutory
and administrative authorities under Federal and state environmental
laws. The development of Federal, state and tribal partnerships and
public participation will be key characteristics of the new process. We
believe that the proposed bill complements the partnerships we are
building through the Munitions Response Committee and will help the
Agency ensure that munitions at both operational and non-operational
ranges are subject to sound environmental management.
The new proposal would authorize the transfer of obsolete vessels for
use as artificial reefs
The bill would also authorize the Secretary of the Navy to transfer
certain vessels for use as artificial reefs, but retain key
environmental safeguards under CERCLA, RCRA and the Toxic Substances
Control Act (TSCA). These ships are often contaminated with asbestos
and polychlorinated biphenyls (PCBs). EPA is working closely with the
Maritime Administration to determine if and when reefing is
appropriate, and to find suitable ship-scrapping facilities at home or
abroad to dispose of obsolete ships in a safe and environmentally sound
manner.
Proposed changes in wetlands mitigation banking
One other environmental provision of the bill deserves mention
here. It would allow military departments to use military construction
funds to make payments to wetlands mitigation banking programs and
consolidated user sites when the Department is engaged in an activity
that may adversely affect a wetland. A wetlands mitigation bank is
typically a privately owned site in many instances, prior converted
crop land where wetlands are restored. Wetlands mitigation banks have
enjoyed increasing acceptance and success since the mid-1990's, and the
new bill would simply clarify that military funds could be used for
this purpose.
Conclusion
Working together, EPA and DOD have developed a legislative proposal
that addresses the concerns of the armed forces about future
applications of EPA's statutes and regulations, while at the same time
preserving the Agency's ability to protect public health and the
environment. In the context of MMR, for example, EPA would still have
the authority to protect the drinking water from imminent and
substantial endangerment under the provisions of the proposed bill.
Similarly, the proposed legislation would codify the so-called
``munitions rule'' under RCRA an existing EPA regulation that sets
forth the conditions under which EPA and the states can respond under
RCRA to environmental threats at both operating and closed military
ranges. The proposed legislation also states clearly that EPA is
authorized under CERCLA section 106 to address imminent and substantial
environmental threats at both operating and closed ranges.
In conclusion, both the Administrator and I support this bill. We
believe that it appropriately takes account of the interests of the
American people in military readiness and in environmental protection.
I am confident that DoD and EPA can work together within the framework
of the proposed law to ensure that America's armed forces are able to
train to carry out their national security mission and that the Agency
is able to carry out its mission of protecting human health and the
environment.
This concludes my prepared remarks. Thank you for the opportunity
to present EPA's views. At this time, I would be happy to answer any
questions you may have.
______
Responses of John P. Suarez to Additional Questions from Senator Inhofe
Question 1. Mr. Suarez, I was pleased to meet you yesterday, and I
look forward to working with you in the future. For my first question
of you I would like you to reconcile some testimony for me.
You have testified that Governor Whitman and indeed EPA as an
entity supports the President's military encroachment legislative
request. You testified that, ``[T]he Administration's bill
appropriately takes account of the interests of the American people in
military readiness and in environmental protection. I am confident that
DoD and EPA can work together within the framework of the proposed law
to ensure that America's armed forces are able to train to carry out
their national security mission and that the Agency is able to carry
out its mission of protecting human health and the environment.''
At the same time, Governor Whitman's testified that, ``We have been
working very closely with the Department of Defense, and I don't
believe that there is a training mission anywhere in the country that
is being held up or not taking place because of an environmental
protection regulation,'' and ``[A]t this point in time I am not aware
of any particular area where environmental protection regulations are
preventing desired training.''
Why do you believe that the environmental legislation proposed by
the Department of Defense should be enacted when you also apparently
believe there is no instance where it is needed?
Response. When Defense Department officials approached EPA in early
2002 to discuss draft legislation, they recognized that EPA's
enforcement of the statutes and regulations it administers was not
presenting a current impediment to training and readiness. Instead they
indicated that their concerns were about possible future applications
of EPA requirements, including legal challenges to the nation's
training and readiness activities. Working together, we developed
legislative language to ensure that America's armed forces are able to
train effectively and that our health and environment are protected in
the process.
Question 2. I want to be clear that as Chairman of this Environment
and Public Works Committee and as a father of four and a grandfather of
eleven, I am quite mindful of our nation's future and want to continue
the improvement in the health of our environment, which EPA statistics
show.
Mr. Suarez, according to EPA, will human health and the environment
be fully protected under this legislative proposal?
Response. The Administration's fiscal year 2004 Defense
Reauthorization Bill promotes future military readiness without
jeopardizing public health and environmental protection under EPA's
laws. The EPA's fundamental environmental protections for air, water
and waste remain in place. We can still exercise enforcement authority
to protect human health and the environment. While a few provisions of
EPA's laws have been modified, the reauthorization bill does not
represent a ``sweeping exemption'' from our environmental requirements.
Under the proposed bill EPA retains authority under both CERCLA and
the Safe Drinking Water Act to address conditions that may pose an
imminent and substantial endangerment to human health or the
environment.
Question 3. In this time of war, and as someone who has served in
the Army and someone who has for some years served as Chairman of the
Readiness Subcommittee of the Senate Armed Services Committee, and I
want to assure the American people that I share with them a concern for
our troops in combat.
Mr. Suarez, have you worked closely with DoD on these proposals and
are you absolutely convinced that these proposals are necessary to
fully accommodate America's military readiness?
Response. I believe the proposed bill appropriately addresses two
equally compelling national priorities: military readiness and the
protection of human health and the environment.
Question 4. What authorities will EPA have to ensure that the
environment is clean under Superfund?
Response. The bill explicitly preserves EPA's Superfund authority
under CERCLA Sec. 106 to order an abatement of any imminent and
substantial endangerment created by munitions used for their intended
purpose on an operational range. For munitions that migrate off-range
or munitions not used for their intended purpose or, indeed, for
releases of other hazardous substances, pollutants and contaminants EPA
retains all of its CERCLA response authorities. The same is true for
munitions on closed ranges.
Question 5. What authorities will EPA have to ensure that the
environment is clean under the Resource Conservation and Recovery Act
RCRA?
Response. The bill provides a limited RCRA exemption only for
military munitions used for their intended purpose on an operational
range. Nevertheless, such munitions will be subject to all RCRA
authorities, if they are recovered, collected and then disposed of by
burial or landfilling or if they migrate off the operational range and
are not addressed by a Superfund response action. This provision does
not apply to munitions on closed ranges. All other waste handling
activities will be subject to the usual RCRA requirements.
Question 6. As a former State legislator I want to assure: What is
the status of States' rights under this proposal? Do States maintain
protections under this proposal? What, if any, rights do States lose
under this proposal?
Response. Under the proposal, States would retain rights under
environmental laws, with limited exceptions as described below. States
would retain authorities under RCRA and CERCLA for munitions that are
handled as waste on operational ranges. The bill specifically maintains
the ability of States and citizens to take actions against the military
in the event that munitions or their constituents migrate off-range and
may pose an imminent and substantial endangerment to human health or
the environment, if such materials are not addressed by a response
action under CERCLA. The proposal has no effect on closed ranges, or
ranges that close in the future. The proposed changes to the Clean Air
Act's SIP provisions still require the military to quantify and report
its impacts on air quality to States, but would give the military 3
years to ensure that its actions are consistent with a given State's
SIP.
The proposed change to the statutory definition of solid waste
under RCRA would remove State imminent hazard authority under RCRA or
State hazardous waste laws over environmental contamination caused by
explosives, ordnance, munitions or unexploded ordnance (UXO) on
operational ranges used for their intended purpose and which remain on
the range. In addition, the proposed legislation would provide for
removal to Federal court of CAA and SDWA penalty actions brought by
States against Federal agencies.
Question 7. What is the status of cities' rights under this
proposal? Do cities maintain protections under this proposal? What, if
any, rights do cities lose under this proposal?
Response. Under the proposal, cities also would retain rights under
environmental laws, with limited exceptions. The bill specifically
maintains the ability of States and citizens, including cities, to take
actions against the military in the event that munitions or their
constituents migrate off-range and may pose an imminent and substantial
endangerment to human health or the environment, if such materials are
not addressed under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA). The bill has no effect on
cities' legal authorities on closed ranges. Cities would no longer have
imminent hazard authority under RCRA or State hazardous waste laws over
environmental contamination caused by explosives, ordnance, munitions
or unexploded ordnance (UXO) on operational ranges used for their
intended purpose and which remain on the range.
Question 8. Will States lose any tools available to them for
cleanup?
Response. Please see the answer to Question 6, above.
Question 9. Who is authorized to clean up sites when there is a
threat of ``imminent and substantial endangerment'' States or the
Federal Government or both?
Response. Both EPA and States are authorized under the imminent and
substantial endangerment provisions of a variety of State and Federal
anti-pollution laws to compel cleanup of sites where conditions may
pose a threat of imminent and substantial endangerment.
Question 10. I know Senator McCain has concerns that there may a
loss of funding for cleanup if these legislative proposals are enacted.
Is there any truth to that? Will EPA change its allocation of funds if
these proposals are enacted?
Response. DOD is in a better position to address any impact these
legislative proposals might have on DOD funding for cleanup of DOD
sites. The legislative proposals would not likely, however, have a
significant impact on how EPA allocates cleanup funds.
Question 11. Let us run through the 5 subsections of the CAA
proposal for one moment. Is it fair to characterize the subsection (a)
as requiring DoD to estimate and report to the State emissions from the
proposed military training activities?
Response. Yes, in the version of the legislation to which you are
referring, the Department of Defense would have had to estimate and
report to the State.
Question 12. Does subsection (a) also provide DoD with a 3-year
window of flexibility?
Response. Yes, under this version of the bill DoD would have been
provided with a 3-year window of flexibility.
Question 13. Is it fair to characterize subsections (b) thru (e) as
holding the State harmless for emissions from military readiness
activities? Are cities also held harmless?
Response. Yes, both cities and States would have been held
harmless.
Question 14. Some States and some cities have expressed the concern
that they will bear an additional burden upon enactment of these
legislative proposals. Is there any truth to that burden-shifting
argument?
Response. We do not believe that this legislation, if enacted,
would place greater burdens on States and cities. For example, the
proposed changed to the Clean Air Act would give the military
flexibility to move people and materiel around the country, without
first having to demonstrate compliance with air quality requirements.
Ultimately, however, DoD would have to comply fully with air quality
requirements.
Question 15. Is there any truth to the argument that under these
proposals we are accomplishing the universally accepted goal of
supporting our Armed Forces at the ``expense of our non-military
citizens,'' as Councilmember Lindeman from Aurora, Colorado states in
her testimony?
Response. The proposed legislation, in our view, strikes an
appropriate balance between ensuring military readiness and
environmental protection. The legislation, if enacted, would preserve
essential authorities for EPA to protect human health and the
environment.
Question 16. Councilmember Lindeman characterizes these proposals
as ``blanket exemptions'' from environmental laws. Is that a fair
characterization?
Response, No. As indicated above, the proposed provisions to the
Clean Air Act provide extensions to certain deadlines but ultimately
require compliance with air quality requirements. The proposed changes
to RCRA and CERCLA are limited to the application of those laws to
munitions used for their intended purpose on an operational range, and
that remain on an operational range. EPA retains its full authorities
with respect to a broad range of other DoD activities.
Question 17. I want the experts at EPA to put any unwarranted fears
to rest once and for all Are the ramifications from these proposals
``serious,'' ``untenable,'' and do they pose ``significant potential
for adverse public health effects in cities with respect to air,
drinking water, and management of hazardous waste,'' as Councilmember
Lindeman states in testimony, or does this rhetoric not match the
reality of the proposal?
Response. We respect the concerns expressed by Councilmember
Lindeman, as well as others, regarding the effects of the proposed
legislation. EPA has worked with the Department of Defense and others
within the Administration to ensure that the proposed legislation, if
enacted, would have few, if any, adverse effects on public health and
the environment. We believe that the proposed legislation would
preserve EPA's essential authorities to protect public health and the
environment.
Question 18. Mr. Suarez, in working with DoD on this proposal, can
you tell me from EPA's perspective why a 3-year window of flexibility
might be appropriate, as opposed to 1 year or 8 years, for example? Is
this a reasonable amount of time to offset emissions that might result
from the deployment of new weapons systems and/or realignment of force
strength?
Response. After discussions with the DoD and other departments, we
concluded that a 3-year window of flexibility would have been the
appropriate option for ensuring that the military could accomplish
their training and move military equipment in a way that minimizes air
quality impacts while ensuring readiness. A time line of less than 3
years might not have given the military adequate time to account for
the added emissions generated by the movement of troops and/or
equipment. We considered extending the flexibility to 5 years, but
determined that the length of time (or longer time periods) may not
have matched up well with the deadlines for achieving and maintaining
clean air.
Question 19. What do you think of the suggestion that we
accommodate concerns that this window is too much time and thus
represents too many emissions by going with two and + years or 2 years
instead of 3 years?
Response. As stated in the preceding answer, we believe that 3
years would have been the appropriate length of time.
Question 20. Councilmember Lindemann poses a rhetorical question in
her testimony that I would like to have answered in reality.
She states, ``Contamination, and subsequent closure, of sources of
drinking water by military ordnance constituents such as perchlorate,
RDX and TNT have already occurred in Maryland and Massachusetts under
current law. What will happen in these municipalities if the Department
of Defense is exempted from the relevant environmental statutes?"
What is the answer to her question? What would have happened in
those situations if these legislative proposals had been enacted at
that time? Would things have proceeded differently?
Response. The proposed bill does not alter EPA's authorities under
the Safe Drinking Water Act authorities EPA has used in the past to
address drinking water contamination at the Massachusetts Military
Reservation (Cape Cod, Massachusetts), for example.
Question 21. Councilmember Lindemann makes another rhetorical point
in her testimony that I would like to have answered in reality. She
characterizes this proposal as exempting military facilities from
CERCLA remediation requirements, thereby halting the cleanup of the
sites and preventing any effective opportunity for redevelopment and
economic sustainability in the surrounding community. She makes the
case that the economy is thus jeopardized. Is there any truth to that
assertion?
Response. We believe that the proposed legislation would not have
significant impacts on opportunities for redevelopment and economic
sustainability. The CERCLA provisions would affect only munitions used
for their intended purpose on an operational range, meaning that DoD is
continuing to use the land for military readiness activities. The
CERCLA provisions would NOT affect DoD's obligation to remediate
contamination off of operational ranges or on ranges that are no longer
operational.
Question 22. Concern has been raised about the usage of the term
``constituents thereof'' in conjunction with the list ``explosives,
unexploded ordnance, munitions, munitions fragments.'' What, if any, is
the effect of using the term ``constituents thereof?"
Response. As EPA understands it, if the term ``constituents
thereof'' is not included then an operational range would remain
potentially subject to RCRA or CERCLA authorities based on the premise
that once the constituents of the explosives, unexploded ordnance,
munitions or munitions fragments become separated they are no longer
``explosives, unexploded ordnance, munitions or munitions fragments''
and, arguably no longer covered by these legislative proposals.
Question 23. Do the legislative proposals in any way, either
directly or by implication, affect the Safe Drinking Water Act over
which this committee has jurisdiction?
Response. No.
Question 24. Mr. Benvenuto on the next panel has shown himself to
be thoughtful and analytical in some of his suggestions. He has
suggested that we make explicit in the statutory language that this
legislation in no way impacts the Safe Drinking Water Act. Even if this
language were redundant, wouldn't it be a good idea as a means of
reassuring States and cities? Would EPA agree to this suggestion?
Response. EPA does not believe it is necessary to include a
specific reference to the Safe Drinking Water Act (SDWA) in this
legislative proposal. We would recommend providing the assurance to
States and citizens in the accompanying legislative history instead of
adding redundant language to the statute.
Question 25. The ``Military Munitions Rule'' which I have in my
hand was proposed in 1995 by then EPA Administrator Carol Browner
during the Clinton/Gore Administration. The same cast of characters
finalized the rule in 1997. The rule itself was mandated by a Democrat-
controlled Congress in 1992 legislation called the Federal Facilities
Compliance Act.
Some have suggested that merely codifying the Military Munitions
Rule the work of the Democrats would be a massively [sic] roll back of
environmental law and would constitute a sweeping exemption. Could this
allegation be true?
The allegation is that there are a whole host of implications
associated with codifying the rule, such as State sovereign immunity,
etc. Can you comment on this allegation?
Response. As I testified before the Senate Environment and Public
Works Committee: ``We believe the proposed bill appropriately addresses
two important national priorities: military readiness and the
protection of human health and the environment. These priorities can
both be achieved at the same time, and we appreciate the Defense
Department's willingness to work with us to craft the proposals before
you today.'' We believe the proposed changes to the law are limited and
sharply focused.
______
Responses of John P. Suarez to Additional Questions from Senator
Jeffords
Question 1. The Administration has testified that the bill would
not affect the nation's ability to address perchlorate in groundwater
because EPA would retain its ``imminent and substantial endangerment''
authority under both Superfund and the Safe Drinking Water Act. Am I
correct that those emergency authorities cannot be invoked by either
States or concerned citizens?
Response. Yes, neither citizens nor States may take action under
Section 1431 of the Safe Drinking Water Act (SDWA) to abate an imminent
and substantial hazard. Nevertheless, any person (including citizens
and States) may commence an action under Section 1449 of the SDWA
against anyone who is alleged to be in violation of any SDWA
requirement.
Question 2. Am I correct that EPA's military munitions regulation
does not (1) alter the statutory definition of ``solid waste'', (2)
limit EPA's statutory authority to respond to ``imminent and
substantial endangerments'' under RCRA 7003, (3) narrow the scope of
RCRA's 6001 sovereign immunity provision, and thus does not affect the
ability of States to enforce their own hazardous waste laws, (4) alter
the scope of the citizen suit provision of RCRA 7002, or (5) alter the
rule governing the cleanup of hazardous constituents from military
munitions?
Response. That is correct.
Question 3. Under this proposal, toxic waste from military
munitions that leach off an operational range would remain subject to
the Federal hazardous waste laws only if they are not ``addressed under
Superfund.'' Please explain what ``addressed'' means, whether EPA or
DOD would be responsible for making such a determination and the
process they would follow?
Response. It is our understanding that an off range release would
be ``addressed under Superfund'' if the release is the subject of a
response action under CERCLA. Generally, Executive Order 12580
delegates the President's CERCLA response authority to DOD for releases
on or from a facility under the jurisdiction, custody or control of
DOD. Therefore, DOD would determine whether to initiate a response
action.
______
Responses of John P. Suarez to Additional Questions from Senator Boxer
Question 1. Why does the DoD need these waivers when all of these
laws have provisions that specifically exempt military activities in
the case of national security?
Response. DoD has stated that wholesale, repeated use of emergency
exemptions for routine, ongoing readiness activities make little sense
given that such activities could easily be accommodated by minor
clarifications and changes to existing law.
Question 2. When you testified before us on April 2, you stated
that you were unaware that State and local air regulators were opposed
to DOD's proposed exemptions.
What efforts has this administration made to reach out to, and
solicit the input of, the local and State regulators concerning these
proposals?
To which local and State representatives did this administration
reach out? Did the administration's efforts include outreach to the
State and Territorial Air Pollution Program Administrators?
Did the Administration's efforts include outreach to the States'
Attorneys General?
Did the administration's efforts include outreach to the State and
local solid and hazardous waste program managers?
Did the administration's efforts include outreach to the League of
Cities?
Response. EPA did not manage the comment-gathering process on this
proposed legislation. We submit that such questions may be better
addressed to DoD.
Question 3. The DoD exemption proposal before us would exempt DoD
from many of the environmental laws and regulations that apply to the
private sector. Is this administration abandoning the long-standing
policy that the Federal Government, including DoD, should be held to
the same environmental enforcement standards, enforcement and rules as
the private sector?
Response. No, this Administration remains fully committed to the
principle that Federal facilities should be held to the same standards
as the private sector.
Question 4. In your testimony before this committee you asserted
that EPA fully supports DoD's request for exemptions from RCRA and
CERCLA as reflected in Section 2019 of the Readiness and Range
Preservation Initiative (RRPI). However, is it not correct that in EP
A's official comments to OMB on the DOD proposal, EPA stated that:
``EPA opposes this section''?
Did EPA in its official comments to OMB also state that one of
these reasons is because current laws and regulations already address
DoD's concerns?
Did EPA in its official comments to OMB also state that EPA's 1997
Military Rule substantially addresses the concerns raised by DoD?
Did EPA in its official comments to OMB also state that the RCRA
and CERCLA language ``eliminates'' the ability of a State or other
person to request that the President exercise his authority under
section 106(a) to address an ``imminent and substantial endangerment to
health or welfare or the environment?"
And, third, is it correct that EPA in its official comments to OMB
also opposed this proposal because ``it fails to provide for the rights
of States and citizens to address imminent and substantial endangerment
issues at Federal facilities?"
Am I correct that EPA took the position in its official comments to
OMB on the DOD proposals on RCRA and CERCLA that ``an across the board
exemption for potentially hundreds of 'operational ranges' is too
sweeping''?
Response. EPA's comments pertain to a draft version of the proposed
legislation that was substantially changed in large measure, a result
of interagency dialog between DoD and EPA in the final Administration
proposal to Congress.
Question 5. According to EPA's official comments to OMB, under the
DOD proposal, EPA and States would have to ``wait for human health and
environmental effects to occur beyond the boundaries of the operational
range before the Agency or State could take action.'' In other words,
EPA and States would have to wait until perchlorate migrated off an
active range and contaminated drinking water before it could undertake
clean-up activities. While many believe that the proposal is broader
than the administration asserts, even were the administration's
interpretation correct, it would seem that it does not make sense to
wait for perchlorate or other contaminants to migrate off of an active
range and actually contaminate drinking water or harm people before
taking action to prevent the spread of the contamination. EPA's
official comments to DOD's proposal state that DoD's proposed policy
``ignores the substantial benefits, including reduced cost to respond,
that could be generated under RCRA/CERCLA response prior to
contamination migrating off an operational range.'' In fact, it has
long been EPA's policy to try and stop the spread of contamination
instead of just waiting to clean it up after it occurs. Has EPA changed
its policy regarding drinking water protection?
Response. No, EPA has not changed its policy regarding drinking
water protection. Indeed, the Administration's proposal leaves the Safe
Drinking Water Act untouched. We believe that EPA would retain
sufficient authorities under the proposed legislation to protect human
health and the environment.
Question 6. There are numerous hazardous waste sites across the
Nation, such as the Aerojet site near Sacramento, where perchlorate is
being cleaned up using Superfund. Since this proposal would exempt DoD
ranges from CERCLA, won't this bill restrict EPA's ability to remedy
perchlorate contamination under CERCLA? Please explain.
Response. The Aerojet site near Sacramento, California is not an
``operational range,'' as that term was defined in the proposed
readiness legislation. Accordingly, none of the proposed legislative
changes would apply to the Aerojet site, and current law will continue
to control.
The proposed legislation expressly preserves EPA's authority to
take action under CERCLA Sec. 106 for munitions that pose an imminent
and substantial endangerment on an operational range. Under the bill,
the remainder of EPA's CERCLA remedial authorities for munitions on
operational ranges are simply postponed until after a range ceases to
be operational.
Question 7. Although you assert that the modifications to RCRA and
CERCLA will not hamper cleanup of perchlorate, is it not correct that
CERCLA and RCRA are the laws that govern cleanup of hazardous waste
sites?
Response. It is correct that CERCLA and RCRA are two of the laws
that govern cleanup of hazardous waste sites. The proposed bill leaves
untouched EPA's authority under the Safe Drinking Water Act. EPA has
used this authority to order investigation of and evaluation of
treatment technologies for perchlorate at the Massachusetts Military
Reservation on Cape Cod.
Question 8. At how many current, and at how many former, DoD sites
across the Nation are Superfund or RCRA being used to manage cleanup?
Response. The fiscal year 2002 Defense Environmental Response
Program Report (DERP) to Congress identifies 3,479 installations under
DERP (page B-3). According to this report there are 1,745 active and
closing installations with cleanup work and 1,734 Formerly Used Defense
Sites (FUDS).
Question 9. How many of these sites have perchlorate contamination?
Response. Attached is a list of 29 DoD facilities with known
perchlorate releases. Also attached is a list of private facilities
which may include some former Defense sites. Because PRP searches are
still ongoing at a number of sites and because liability has not been
established for all the private party sites, at this time EPA cannot
precisely identify which ones may have the Department of Defense as a
potentially responsible party. [Note: documents are retained in
committee files.]
Question 10. At how many current, and at how many former,
Department of Defense (DoD) sites is the Safe Drinking Water Act (SDWA)
being used to manage cleanups?
At how many of the current, and at how many of the former,
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA or Superfund) and Resource Conservation and Recovery Act (RCRA)
sites would partial or total cleanup be waived were the recommendations
before us now already in place?
At how many sites is the EPA using its imminent and substantial
endangerment authority to oversee CERCLA cleanups? How many of these
are DoD sites? How many of these sites have perchlorate contamination?
How many of these sites are DoD perchlorate contamination sites?
Response. The following numbers have been gathered from various EPA
data bases and from the various EPA Regions and offices. There are many
bodies that are involved in the enforcement of these statutes,
including the States, EPA and the Department of Justice. The
information requested may not have been comprehensively maintained or
recorded and, therefore, the numbers may not reflect all possible
incidents.
Clean ups have been managed under the SDWA at only one DoD
facility. EPA issued the Massachusetts Military Reservation (MMR)
unilateral orders under Section 1431 of the SDWA on three separate
occasions. The orders issued to MMR also relied on EPA's imminent and
substantial endangerment authorities under RCRA.
The records of Superfund and RCRA sites that have undergone partial
or total cleanups do not reveal whether the proposed legislative
exemptions would effectively waive those cleanups. The proposal draws a
distinction between munitions deposited an operational range incident
to their normal and expected use and munitions handled in other ways.
In any event, the proposed legislation would postpone, not waive, DoD's
obligation to clean up munitions deposited on operational ranges
incident to their normal and expected use.
There are a number of sites at which EPA has used its imminent and
substantial endangerment authority under CERCLA Sec. 106 to oversee
cleanups. As maintained in CERCLIS, EPA's online data base for CERCLA
actions, approximately 153 sites have received unilateral orders under
CERCLA Sec. 106, including 151 private party sites and 2 Federal
facility sites. No unilateral orders under CERCLA Sec. 106 have been
issued to a DoD facility. Perchlorate has not been named as a
contaminant in the records of these sites.
__________
Statement of Craig Manson, Assistant Secretary for Fish and Wildlife
and Parks, Department of the Interior
Mr. Chairman and members of the Subcommittee, I am Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks in the Department
of the Interior (Department). I am pleased to appear before you today
to discuss the role of the Department of the Interior in implementing
Federal natural resource laws and our continuing working relationship
with the Department of Defense (DoD) on natural resource issues. My
statement will address the Fish and Wildlife Service's responsibilities
and authorities under the Endangered Species Act (ESA), the Sikes Act,
and the Marine Mammal Protection Act (MMPA). These laws reflect our
Nation's long-standing commitment to the conservation of our natural
resources for the benefit of future generations.
The Department interacts with Department of Defense activities
through its bureaus, including the U.S. Fish and Wildlife Service, the
Bureau of Land Management, and the National Park Service. The Fish and
Wildlife Service strives to insure flexibility in meeting our joint
responsibilities under the various natural resource laws without
impacting the military's ability to train its personnel. I believe that
the Fish and Wildlife Service and the military have done a commendable
job at working together to strike a balance between our legal
responsibilities and the Armed Forces' duty to be both protectors of
our National Security and stewards of our natural heritage. I also
acknowledge that more can be done. I will address both our successes
and challenges as I discuss issues associated with the applicable laws.
Endangered Species Act
The ESA was passed in 1973 to conserve vulnerable plant and animal
species that, despite other conservation laws, were in danger of
extinction.
DoD has a critically important role to play in the conservation of
many rare plants and animals. At least 300 species listed as threatened
or endangered occur on DoD-managed lands. DoD manages approximately 25
million acres on more than 425 major military installations throughout
the United States. Access limitations due to security considerations
and the need for safety buffer zones have sheltered many military lands
from development pressures and large-scale habitat loss. As a result,
some of the finest remaining examples of rare wildlife habitats exist
on military lands.
The Fish and Wildlife Service has strived to establish good
relationships with DoD that enable the military to carry out its
mission of protecting our country while also ensuring the conservation
of ESA-listed species on land it manages. Some outstanding examples of
these partnerships are included at the end of my statement.
Candidate Conservation
Conserving species before they need protection under the ESA is
easier, more efficient, and poses fewer challenges to Federal agencies,
including the military. In partnership with DoD and NatureServe, the
Fish and Wildlife Service is developing a list of all at risk, non-
federally listed species that may be found on or near military lands.
This partnership project was developed by the military agencies, and
demonstrates their interest in working with the Fish and Wildlife
Service to benefit species.
The term ``species at risk'' is a term used by NatureServe for a
native species that is either a candidate for listing or is considered
by NatureServe and the Network of Natural Heritage Programs to be
``imperiled'' or ``critically imperiled.'' In NatureServe's use of the
term, ``Species at risk'' refers to species that are presumed extinct,
historical, critically imperiled, imperiled, and vulnerable (GX, GH,
G1, G2, G3 ranks, respectively). Although the Fish and Wildlife Service
generally means the same thing when we use the term ``species at
risk,'' we use the term as a descriptive, illustrative term for those
species that may warrant conservation to prevent the need to list under
the ESA. A ranking of G1, G2, or G3 indicates those kind of species.
``Imperiled'' and ``critically imperiled'' are defined by NatureServe
as terms referring to G1 and G2 ranked species.
Once a species at risk is identified based on a mutual priority
between the DoD installation and the FWS office, the Fish and Wildlife
Service works with DoD to develop and implement conservation
recommendations for the relevant activity. DOD working on a particular
``species at risk'' is based on a mutual priority between the DOD
installation and FWS office.
In addition to this local and regional cooperation, Fish and
Wildlife Service and DoD personnel have been meeting quarterly for
several years in an ``Endangered Species Roundtable.'' This informal
session allows for open discussion and can lead to the referral of
particularly difficult issues to headquarters for guidance or
resolution. The group also reviews the Sikes Act and Integrated Natural
Resource Management Plan (INRMP) development and implementation as they
pertain to endangered species management.
Challenges
Even with these successful partnerships, we acknowledge that there
have been challenges in resolving endangered species conservation and
the military mission at some DoD bases and facilities. For example, 18
threatened or endangered species occur on Camp Pendleton, a Marine
Corps Base in California. For some of these species, like the tidewater
goby, the base harbors the only known remaining populations. Preventing
potential conflicts between endangered species conservation and Camp
Pendleton's primary military mission continually challenges the
creativity of both the Fish and Wildlife Service and the base
leadership.
Section 7(j) of the ESA provides a national security exemption that
DoD can invoke in cases where National Security would be unacceptably
compromised by conservation responsibilities. This exemption has never
been invoked by DoD, a fact that speaks very well to the creativity of
our military and natural resource professionals. However, it is
apparent that we must avoid penalizing the military for having done
positive things for conservation of species and we must not unfairly
shift the burden of species protection to the military. Additionally,
in some cases, issues arise because of differing perceptions between
our respective agencies about the effects of the provisions of the ESA.
Finally, I must note that many of the challenges presented to the
military under the ESA are similarly faced by other Federal agencies
and private landowners. We look forward to continuing to work with the
DoD to clarify these issues and buildupon the relationship we have
established.
Recent Court Decision on Definitional Exclusions from Critical Habitat
Integrated Natural Resource Management Plans (INRMPs) are planning
documents that allow the military to implement landscape-level
management of its natural resources while coordinating with various
stakeholders. The Department of the Interior initiated a policy in the
previous Administration, which we have continued, to exclude military
facilities from critical habitat if there was an approved INRMP for
that facility which addressed the species in question. However, a
recent court case has cast doubt on our ability to continue this
practice.
The policy is based on the definition of critical habitat which
states, in part:
. . . the specific areas within the geographical area occupied by
the species . . . on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection;
The exclusion policy was based on a decision that military lands
with an approved INRMP, and other types of land with approved
management policies, did not require special management consideration
because they already had adequate management and, thus, by definition
would not be considered critical habitat.
However, the U.S. District Court in Arizona has ruled, in a case
relating to Forest Service lands (Center for Biological Diversity v
Norton), that this interpretation is wrong, and the fact that lands
require special management necessitates their inclusion in, not
exclusion from, critical habitat. The Court went on to say that the
government's interpretation amounted to our inserting the word
``additional'' into the statute (between ``require'' and
``management''), and that only Congress can so revise the definition.
While the implications of this decision go far beyond military
lands, we felt it important to advise the committee of it and the cloud
it casts over our continued ability to exclude military lands with
approved INRMPs from critical habitat. We believe this adds additional
weight to the Administration's proposal for a statutory exclusion.
To avoid possible confusion in light of the Court's ruling, we
would suggest striking the words ``provides the `special management
considerations or protection' required under the Endangered Species Act
(16 U.S.C. 1532(5)(A)) and'' from the proposed new section 2017(a) of
the Administration's Readiness and Range Preservation Initiative. While
that phrase is consistent with our interpretation of the law, it could
cause future litigation problems due to the Court's ruling that the
necessity for ``special management considerations or protection''
requires that land to be included, not excluded, from critical habitat.
This change would leave the section with an unambiguous statement that
completion of an INRMP for the species in question precludes
designation of critical habitat at that facility.
Recent Critical Habitat Actions
The ESA portion of the Administration's proposal addresses critical
habitat designations. The Department has been able to address a number
of DoD concerns over critical habitat designations.
Critical habitat proposed for the purple amole, a plant, in
California included significant portions of Camp Roberts and Fort
Hunter Liggett. Camp Roberts had a completed INRMP which addressed
conservation of this plant, and we excluded it from the critical
habitat designation on this basis.
While Fort Hunter Liggett was developing an INRMP to address the
plant, it did not have the plan completed at the time we had to make
the decision on the critical habitat designation. However, the
Department of Defense had provided us with detailed comments on the
adverse impacts to military readiness that would result from the
proposed designation, and these justified removing the Fort from the
critical habitat under section 4(b)(2) of the ESA. We determined that
the benefits of excluding the area exceeded the benefits of inclusion,
in that the adverse impacts to national defense exceeded the benefits
that would result from designating the area as critical habitat.
Although not the basis for our decision, the fact that Fort Hunter
Liggett had a statutory obligation to complete its INRMP, and to
include the plant within that plan, provided us with an additional
comfort level for that exclusion.
Sikes Act and Integrated Natural Resource Management Plans
In fiscal year 2002, the Fish and Wildlife Service and state fish
and wildlife agencies assisted in development, review, and/or
implementation of INRMPs for 225 military installations in the United
States.
INRMPs serve as an effective vehicle through which DoD and the
Military Services can comprehensively plan for conservation of fish and
wildlife species. This planning has the potential to address important
needs for resident endangered species, including the protection of
habitat.
We are committed to improving and expanding our existing
partnerships with DoD, the Army, the Navy, the Air Force, and the
Marine Corps. We look forward to opportunities to increase the utility
of INRMPs as tools to maximize the potential benefits of DoD lands to
fish and wildlife conservation while ensuring effective training of our
troops.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 established a Federal
responsibility, shared by the Secretaries of the Interior and Commerce,
for the management and conservation of marine mammals. The Department
of the Interior is responsible for sea otters, walrus, polar bears,
dugongs, and manatees, while the Department of Commerce is responsible
for cetaceans and pinnipeds, other than walrus, including seals, whales
and dolphins. In 1994, Congress enacted a number of amendments to the
statute. One of the provisions, with broad applicability throughout the
Act, added the definition of ``harassment'' as an element of the Act's
take provisions.
Over the last several years, the Fish and Wildlife Service has
worked diligently with the National Marine Fisheries Service (NMFS),
the Marine Mammal Commission (MMC), the United States Navy, and Alaska
Natives to develop proposals that enhance marine mammal conservation,
and provide greater certainty to the regulated public regarding certain
areas of the existing law. During this process, revisions to the
definition of harassment were considered to address a number of
concerns, including those expressed by the Navy. The text of this
proposed amendment to the definition of harassment is contained in
Administration's Range Readiness and Preservation initiative in a way
that only applies to DoD military readiness activities.
We note that this same language applying to all entities, in
addition to other important proposals related to the MMPA, are
contained in the Administration's comprehensive legislative proposal to
reauthorize and amend the Marine Mammal Protection Act. This MMPA
reauthorization proposal was transmitted to Congress at the end of
February. The Department strongly supports enacting this comprehensive
legislative proposal, which will address the concerns of the Navy
regarding harassment.
The Administration's Range Readiness and Preservation initiative
contains two other provisions related to the MMPA an incidental take
provision related to military readiness activities, and a national
defense exemption. Because the Department of Commerce has the most
interaction with DoD regarding these particular MMPA issues, we will
defer to their comments on these provisions.
Conclusion
In closing, Mr. Chairman, I believe both the Department of the
Interior and DoD have acted cooperatively to implement natural resource
conservation laws passed by Congress. We are aware of the challenges
that have arisen during this endeavor. The Department is prepared to
explore and craft creative solutions to balance our conservation
mandates with military readiness. We look forward to continue work with
the Department of Defense on this vitally important matter.
This concludes my testimony. I appreciate the opportunity to appear
today before the committee, and I would be pleased to answer any
questions you have.
______
Attachment
examples: fws-doi cooperation in endangered species conservation
United States Air Force Academy, Colorado.--The U.S. Air Force
Academy recognized the value of long-range planning when it
commissioned a baseline study of small mammals in 1994. The survey
aided the Air Force in identifying the presence of the Preble's meadow
jumping mouse, which at the time was a candidate for listing. A species
receives protection under the ESA when it is listed as endangered or
threatened. In order to help DOD agencies plan their activities, the
Fish and Wildlife Service shares information on listing candidates and
upcoming listing actions. As a result, the Academy entered into a
partnership with the Colorado Natural Heritage Program to study the
mouse and provide information for management and conservation
strategies.
When the jumping mouse was listed as threatened in 1998, the Fish
and Wildlife Service took steps to ensure that the Academy would be a
full partner in the species' management and recovery. The Academy's
natural resources manager is a member of the Science Advisory Team, a
group of scientists and managers dedicated to compiling the best
science available to support the conservation of the mouse throughout
its range. An Academy representative also holds a position on the
executive committee for a habitat conservation plan (HCP) under
development for El Paso County, Colorado. Through the HCP process, the
Academy will coordinate with non-Federal entities in the development of
regional conservation strategies for the mouse. In addition, at the
request of the Fish and Wildlife Service, the Academy's natural
resources manager is representing the Air Force on the Preble's Meadow
Jumping Mouse Recovery Team, which is charged with developing a plan to
restore the species to a secure status. The Air Force also initiated a
programmatic formal consultation under section 7 of the ESA for its
Preble's meadow jumping mouse conservation management plan and
conservation agreement. The biological opinion provided by the Fish and
Wildlife Service on the Academy's conservation management plan
significantly reduced the regulatory burden on both the Academy and the
Fish and Wildlife Service by removing the need for section 7
consultations for each instance of regular maintenance.
Camp Pendleton, California.--In 1999, substantial areas of Camp
Pendleton were included in proposed designations of critical habitat
for 5 of the 18 listed species that are present on the base. The Fish
and Wildlife Service was able to work within the provisions of the ESA
to avoid designating critical habitat on the training areas within Camp
Pendleton.
The ESA requires the Fish and Wildlife Service to determine whether
designation of critical habitat is prudent and determinable. Under
sections 4(b)(2) of the ESA, the Secretary of the Interior can exclude
areas from critical habitat designations when economic or policy
interests outweigh the expected benefits of designation. The Fish and
Wildlife Service has used military readiness as a reason to exclude
training areas from critical habitat designations many times now.
For example, the 1999 proposals for critical habitat on Camp
Pendleton would have designated over 50 percent of the base as critical
habitat for listed species, including the California gnatcatcher, the
Tidewater goby, the Riverside fairy shrimp, the San Diego fairy shrimp,
and the arroyo toad. As a result of the exclusion process discussed
above, the Fish and Wildlife Service was able to exclude most of Camp
Pendleton from the designated critical habitat due to Marine Corps
concerns about the effects the designations could have on military
training critical to national security. The land area currently
designated as critical habitat on Camp Pendleton encompasses less than
4 percent of the 125,000 acre, over half of which is located on land
leased by the State, rather than the base proper.
Fort Hood, Texas.--Under the section 7(a)(2) of the ESA, Federal
agencies are required to consult with the Fish and Wildlife Service to
ensure that actions they authorize, fund, or carry out are not likely
to jeopardize the continued existence of listed species or adversely
modify designated critical habitats. A good example of this process
occurred recently at Fort Hood. As one of the largest heavy artillery
training sites in the country, it conducts live weapons fire and
aviation training and houses more than 500 tanks. Much of the 220,000-
acre base resembles barren, scorched battlefields with ruts as deep as
trenches. However, it also contains essential nesting habitat for two
endangered songbirds, the golden-cheeked warbler and black-capped
vireo. Fort Hood is balancing its military mission with environmental
stewardship.
As part of its responsibility under the ESA, the post manages
66,000 acres, more than 25 percent of the land on base, for the
recovery of these two endangered species. The post also provides a
haven to wintering bald eagles, occasional visiting whooping cranes,
peregrine falcons, and other rare plant and animal species.
The Army entered into an interagency consultation with the Fish and
Wildlife Service under section 7 of the ESA. In 1993, the Fish and
Wildlife Service issued a ``no jeopardy'' Biological Opinion (BO).
Following the issuance of the BO, Fort Hood contracted with the Nature
Conservancy of Texas for further research and monitoring of the birds.
In conjunction with Fish and Wildlife Service and Army biologists,
Conservancy researchers are compiling the most comprehensive body of
information on the birds to date. Fort Hood has followed the
requirements of the 1993 BO (including a version amended in 2000) and
has funded valuable research and management strategies that can be
applied to warbler and vireo issues range-wide. The birds are
benefiting from our partnership with the Garrison Commander and base
natural resources staff.
Fort Bragg, North Carolina.--For listed species, recovery is the
ultimate goal. Section 7(a)(1) of the ESA directs Federal agencies to
use their statutory authorities to fulfill this goal. The Sandhills
region of North and South Carolina supports the largest population of
red-cockaded woodpeckers (RCW) in the United States. Fort Bragg is the
only Federal authority managing lands in that region for the recovery
of RCW's. The area around Fort Bragg is being rapidly developed, and if
critical tracts are not protected soon, they will be lost to the
woodpecker. Loss of these lands due to development also would limit
Fort Bragg's ability to sustain current and future military training.
In response, the Army launched a Private Lands Initiative with The
Nature Conservancy and other partners to purchase land or conservation
easements from willing sellers. The lands will not only become
available for red-cockaded woodpecker recovery, but also for compatible
military training activities and recreation.
Fort McCoy, Wisconsin.--Fort McCoy encompasses 59,750 acres and is
home to a diversity of vegetation, including wild lupine, which is the
only known food plant for larvae of the endangered Karner blue
butterfly. Since 1990, when the installation discovered Karner blues on
its land, military training and the butterflies have coexisted and
thrived. Fort McCoy officials began coordinating with the Fish and
Wildlife Service on the impact of both military and non-military
activities affecting the Karner blue butterfly in 1992. In early 1994,
the Fish and Wildlife Service issued Fort McCoy a no-jeopardy BO that
included ``reasonable and prudent measures'' and ``terms and
conditions,'' both as provided under the ESA. As part of an effort to
fulfill those terms, Fort McCoy submitted a draft Karner Blue Butterfly
Conservation Plan to the Fish and Wildlife Service in 1995. The plan
outlined the direction Fort McCoy would take to manage its lands for
the butterfly while allowing for the successful completion of the
installation's military training mission. The final conservation plan
was completed in 1997. Fort McCoy has been able to comply with the ESA
while having only minimal impact on military training.
Pearl Harbor, Hawaii.--A Navy team recently created some critical
mudflat habitats for endangered waterbirds on the shores of Pearl
Harbor. These mudflats are home to a number of Hawaiian waterbirds,
including four endangered species and a variety of migratory birds. The
site is a small pond within a unit of the Pearl Harbor National
Wildlife Refuge. While the underlying land and water is owned by the
Navy, the refuge is managed by the Fish and Wildlife Service. Over the
years, the pond has provided decreasing value to waterbirds because of
the increasing growth of invasive plants and weeds. Fish and Wildlife
Service staff had attempted to create clear spaces by changing the
water levels, but it wasn't enough to make the area suitable habitat
for waterbirds. Additional work with heavy equipment was needed to
create conditions favorable for wildlife.
In August 2000, a Navy Seabee unit answered the Refuge Manager's
request for help and at the same time benefited from some real-life
training. Two Seabee heavy equipment operators maneuvered a bulldozer
and grader to sculpt the bottom of the pond. Putting their Navy
engineering skills to work in this training exercise, they reshaped
mudflats for endangered Hawaiian stilts and constructed a drainage
system according to a refuge restoration plan. This project was just
one example of the Navy's strong partnership with the Fish and Wildlife
Service's national wildlife refuge in Pearl Harbor. For years, sailors
and their families also have volunteered numerous weekend hours
creating new habitats and clearing away trash and excess vegetation at
the refuge.
Air Force in Alaska and Peregrine Falcon Recovery.--Since the early
1980's, the Air Force has worked with the Fish and Wildlife Service to
minimize or eliminate impacts of Air Force activities on peregrine
falcons in Alaska. Through the section 7 consultation process, the Air
Force and the Fish and Wildlife Service identified major peregrine
nesting areas in proposed Air Force training locations. Much of this
training involves very low-level and high-speed flights, a combination
with the potential to disturb many wildlife species, including nesting
peregrine falcons. The Air Force agreed to a protective ``no-fly'' zone
of 2 miles horizontal distance and 2,000 feet above the nest level in
these dense nesting areas. Additionally, the Air Force is monitoring
several nearby peregrine populations that fall outside the protected
areas. This monitoring effort, which has continued since 1995, shows
that the protective zones appear to provide adequate protection in the
densest nesting areas and that the incidental loss of nestlings outside
these zones is below the levels originally anticipated. Rather than
making a minimal effort to comply with the ESA, the Air Force actively
pursued programs to promote peregrine recovery, which helped make it
possible to remove this magnificent bird from the threatened and
endangered species list in 1999.
______
Responses of H. Craig Manson to Additional Questions from Senator
Inhofe
Question 1. Wouldn't you agree, as was noted by at least two
Federal courts in their rulings and indicated on the chart to my right,
that the United States Fish and Wildlife Service--regardless of which
party is administering the Service--has long held the policy position
that critical habitat designations are unhelpful, duplicative, and
unnecessary?
Response. I believe that is a valid characterization of the
agency's position.
Question 2. Isn't it also empirically true, as was noted by at
least two Federal courts in their rulings, that although the United
States Fish and Wildlife Service must designate critical habitat once a
species is listed, ``the FWS has typically put off doing so until
forced to do so by court order?"
Response. While this is true, I believe the U.S, Fish and Wildlife
Service's (Service) lack of action does need some further explanation.
The Endangered Species Act (ESA) calls for designation of critical
habitat ``to the extent prudent and determinable.'' Previously, the
Service adopted a policy that in most circumstances designation of
critical habitat was ``not prudent,'' as it did not provide sufficient
additional benefits to the species over and above that provided by
listing to warrant the commitment of agency resources that would be
involved in the designation. The Service was not ignoring the
requirement to designate, it was making ``not prudent'' findings based
on a policy that the courts have determined to be in conflict with the
applicable statutory requirements.
Question 3. Do you agree with the Department of Defense when' they
state that the Integrated Natural Resources Management Plans (INRMPs)
are a more ``holistic'' approach to species conservation than merely
designating critical habitat?
Response. Yes, in almost every case, active coordinated management
of land provides far greater benefit to listed species than the
protection which may accompany a critical habitat designation.
Question 4. Do you have some sympathy for the approach that former
Clinton Administration Fish and Wildlife Service Director Jamie Clark,
who will testify on the next panel, originally took when in the Final
Determination of Critical Habitat for the Coastal California
Gnatcatcher of October 24, 2000, she determined that because ``a final
INRMP that provides for sufficient' conservation management and
protection'' and ``meets the [appropriate] three criteria,'' lands on
Marine Corps Base Miramar do not meet the definition of critical
habitat?
Response. This Administration has continued that policy, and it is
the basis for the proposed critical habitat provisions iii the
Administration's Readiness and Range Preservation Initiative.
Question 5. Moreover, do you think as a general rule that it would
be a good idea to adopt the proposal of the Department of Defense to
allow the more holistic approach of INRMPs in lieu of designating
critical habitat?
Response. Yes, we fully support that proposal.
Question 6. Are you convinced that this proposal is important for
our national security?
Response. It seems very clear that designation of critical habitat
on military lands used for training or other readiness purposes can
have the effect of delaying and restricting the military's ability to
use those lands due to the need for additional consultations. In
today's environment, we cannot afford unnecessary restrictions on the
military's ability to train and deploy.
Question 7. Are you convinced that species can be protected using
INRMPs just as well if not better using INRMPs instead of designating
critical habitat?
Response. A properly prepared and implemented INRMP would be of far
greater benefit to the conservation of all species, listed and
unlisted, than the mere designation of the same area as critical
habitat,
Question 8. Would the Department of Defense still have to have
their INRMPs approved by the U.S. Fish and Wildlife Service?
Response. Yes, there is nothing in the Administration's Readiness
and Range Preservation Initiative that alters the current process by
which INRMPs are developed and approved.
Question 9. Will you please amplify your testimony with more of the
background and specifics of the recent Arizona court decision involving
designation of critical habitat?
Response. The Court made a number of findings in that case with
which we do not agree. The one most directly applicable to the pending
proposal relates to the definition of critical habitat.
The portion of the definition of critical habitat in question is:
``specific areas . . . on which are found those physical or biological
features--(1) essential to the conservation of the species and (II)
which may require special management considerations or protection.''
The overall issue in this case was a challenge to the Service's
decision to exclude Forest Service lands from the designation of
critical habitat on the grounds that the National Forest management
plans provided adequate management protection for owls and that,
therefore, ``special management considerations or protections'' were
not needed.. This is the same policy used to exclude military lands
with approved INRMPs from critical habitat.
In the portion of the decision most directly addressing this issue,
the court ruled:
The phrase `which may require special management considerations or
protection' can be rephrased as `can require' or `possibly
requires' without altering its meaning. Hence, a plain reading of
the definition of `critical habitat' means lands essential to the
conservation of a species for which special management or
protection is possible.
Whether habitat does or does not require special management by
Defendant or FWS is not determinative of whether or not the habitat
is `critical' to a threatened or endangered species. What is
determinative is whether or not habitat is `essential to the
conservation of the species' and special management of that is
possibly necessary. Thus, the fact that a particular habitat does,
in fact, require special management is demonstrative evidence that
the habitat is `critical.' Defendant, on the other hand, takes the
position that if a habitat is actually under `adequate' management,
then that habitat is per se not critical,' This makes no sense. A
habitat would not be subject to special management and protection
if it were not essential to the conservation of the species. The
fact that a habitat is already under some sort of management for
its conservation is absolute proof that such habitat is `critical.'
[Emphasis in original.]
We believe that this decision ignores a great many valid and
applicable factors which would normally, and reasonably, be taken into
account in making such determinations. These include the fact that
there are many reasons, including statutory or policy requirements
apart from the ESA why any given area might have a conservation
management plan; and that landowners not required to provide
conservation management for their property might well not do so if that
resulted in their land being definitionally classified as critical
habitat,
Question 10. Does the lawsuit by an eco-radical special interest
group have some bearing here?
Response. The portion of the court's ruling cited above is directly
applicable to the issue of excluding military lands with approved
INRMPs from critical habitat, as the court voided the policy upon which
this is based. While this decision is only applicable to the Forest
Service lands that were the subject of this specific case, it is
available as precedent in other cases challenging the Service's
exclusion of military lands from critical habitat.
Question 11. There was some confusion here on Capitol Hill
yesterday regarding what the Arizona case actually states. Doesn't the
lawsuit specifically say that ``the ESA compels designation [of
critical habitat] despite other methods of protecting the species the
Secretary [through FWS] might consider more beneficial?
Response. The ruling actually goes a step further than that. While
prior litigation, such as NRDC v. U.S. Department of the Interior, 113
F.3d 1121 (9"' Cir, 1997), resulted in ruling such as you describe,
this decision says that critical habitat must be designated because of
the existence of other, more beneficial, methods of protecting species.
While the military and many other Federal agencies have statutory
obligations to conserve listed species and to complete and implement
beneficial management plans, this is not at all true of State and
private landowners. Were this decision to become applicable nationally,
it would likely destroy one of the primary incentives for non-Federal
landowners to take positive steps to conserve and assist in recovery of
listed species, as few if any would do so if they knew the reward for
their actions would be the designations of their lands as critical
habitat.
Question 12. Doesn't the lawsuit specifically suggest that the
Department of the Interior rethink critical habitat designation?
Response. The court did so suggest. The court noted that a large
number of other courts had also ruled against the Service's decisions
not to proposed critical habitat. It then ' mistakenly characterized
those court rulings as involving the issue of ``special management
considerations or protection,'' when they were in fact based on the
``not prudent'' policy referenced above, and then it suggested that the
Service should reverse its prior policy and, by implication, begin to
designate critical habitat based on the criteria set forth by the court
and quoted above.
Question 13. We have heard allegations that this legislation is
overly broad. Isn't it true that the legislation is actually quite
narrowly tailored?
Response. The provisions relating to critical habitat under the ESA
and to the Marine Mammal Protection Act are quite narrow. The critical
habitat provision codifies a policy first initiated in the previous
Administration, and the proposals relating to the Marine Mammal
Protection Act are also contained in the Administration's proposal for
reauthorization of that Act, but are applicable to all regulated
parties in that proposal. I defer to the other appropriate agencies'
witnesses with respect to the other portions of the Initiative,
Question 14. Does this legislation appropriately respond to the
restrictions the case now imposes?
Response. As indicated in my written statement, in response to this
court ruling, we believe a slight modification to the original proposal
is in order. We suggest striking the words ``provides the `special
management considerations or protection' required under the Endangered
Species Act (16 U.S.C. 1532(5)(A)) and'' from the proposed new section
2017(a) of the Administration's Readiness and Range Preservation
Initiative. While that phrase is consistent with our interpretation of
the law, it could cause future litigation problems due to the court's
ruling that the, necessity for, ``special management considerations or
protection'' requires that land to be included, not excluded, from
critical habitat.
This change would leave the section with an unambiguous statement
that completion of an INRMP for the species in question precludes
designation of critical habitat at that facility.
Question 15. Wasn't the subject of that case--the underlying rule--
a matter that commenced in the Clinton Administration?
Response. The initial lawsuit seeking designation of critical
habitat for the Mexican spotted owl was filed in 1994, during the
Clinton Administration. There have been a number of legal actions and
revisions to proposed and designated critical habitat for the species
since that time. The critical habitat designation which was the subject
of this particular suit was done based on a court order requiring a
decision by January 15, 2001, also within the previous Administration.
Question 16. Didn't the judge rule that the actions of the previous
Fish and Wildlife Service over which Ms. Jamie Clark presided were
``nonsensical,'' ``impermissible and contrary to law,'' and ``knowingly
unlawful?"
Response. The judge in this case did make those findings.
Question 17. As the court again noting in the recent Arizona case,
didn't the Fish and Wildlife Service argue in the 1997 NRDC case
regarding the gnatcatcher, in defense of its decision not to designate
critical habitat for the endangered gnatcatcher, that a ``far
superior'' state-run protection program adequately protected the
habitat?
Isn't it a valid scientific conclusion that the holistic management
plans can protect species in a way ``far superior'' to mere designation
of critical habitat?
Response. Yes, the Service did make that argument, and we believe
that argument is factually valid, even though it was found legally
insufficient under the existing provisions of the ESA. Well-designed
and implemented conservation management plans will, in virtually every
case, provide far greater benefits to a species than a requirement,
which is applicable only to Federal agencies, to avoid damage to the
same habitat,
______
Responses of H. Craig Manson to Additional Questions from Senator
Graham
Question 1. In 1998, Congress amended the U.S. Armed Forces Code to
give the military an opportunity to raise readiness issues to the
political level of the executive branch and suspend administrative
actions pending consultation between the Secretary of Defense and the
head of the action agency involved. How many times as the Secretary of
Defense used this provision for activities that fall under the scope of
your agency?
Response. To the best of my knowledge, this has not been used for
any activities under the jurisdiction of the Service.
Question 2. Does the need to manage former military lands with
major contamination limit your ability to carry out other activities?
Could you also please provide the committee with a list of contaminated
military facilities transferred to Interior since 1990, including a
brief description of the contamination?
Response. Yes, the need to manage these lands can limit our
abilities to carry to out other activities in at least two ways,
First, given that we do not routinely receive additional funding to
clean up, oversee cleanup, or manage these lands either when or before
they transfer to us we routinely must use existing Service staff and
base funds to perform these needed or required functions.
Second, it can actually physically limit how or what we can do to
manage the land and associated biological resources. A few examples are
the presence of unexploded munitions or significant contamination,
which may prevent us from actively managing the land (e.g., mowing,
plowing, controlled burning, sign posting or fencing) to maximize the
benefit to the biological resources (e.g., animals, plants, or habitat)
that we are trying to manage. In addition, for safety or liability
reasons it can result in restricting access of both employees and the
public.
Moreover, Attachment I lists the military facilities transferred to
the Service since the beginning of fiscal year 1990 (starting October
1, 1989) and associated contaminants of concern at the time of
transfer.' Note that some of the reported contaminants of concern may
since have been remediated. The list was provided from the Service's
Division of Realty; the list of contaminants of concern was obtained
from our data bases and files and from coordination with appropriate
regional and field Environmental Contaminants staff.
______
Responses of H. Craig Manson to Additional Questions from Senator
Jeffords
Question 1. The Sikes Act requires that INRMPs be prepared in
cooperation with the Service and the State fish and wildlife agencies.
In addition, the Service must comment on implementation and
effectiveness of the INRMPs and be involved in the formal review
process every 5 years.
In fiscal year 2002, the Service spent $3.1 million and staff hours
equal to 30 fulltime employees on INRMPs. What is the Service's budget
request for this in 2004 and what would the impact be on the Service's
budget if the DoD proposal was enacted?
Response. To clarify our expenditures in fiscal year 2002, it
should be rioted that the Service spent $897,000 of its appropriated
funds and $2.2 million of Defense Department-provided funds. The
Service has not requested additional appropriations pursuant to the
Sikes Act authority in any year, including fiscal year 2004, due to
many competing priorities for limited funds. The Service carries out
its Sikes Act-related work using existing base funds, The Service's
cooperation and coordination on INRMPs is a continuing process, All
INRMPs are reviewed by military installations on a yearly basis and our
feedback is requested concerning the implementation and effectiveness
of the plans. Also, INRMPs will go through a formal review process at
aa minimum every 5 years. This formal review process is conducted by
DOD and involves coordination with the Service and State fish and
wildlife agencies to again obtain mutual agreement on the plan's
conservation, protection, and management of fish and wildlife
resources.
The importance of early involvement of the Service in the planning
process will be even more crucial if the DOD proposal is enacted. Early
coordination will ensure the adequacy of INRMPs in protecting
threatened and endangered species and their habitats, and facilitate
our final approval of the plans.
Question 2. In fiscal year 2002, the Service was involved in the
development, review and implementation of INRMPs for 225 military
installations. It' enacted, what impact will the DoD proposal have on
existing INRMPs?
How many species would be impacted?
Response. There would be no impact from this proposal on existing
INRMPs or the species found on the installations covered by these
plans. The Administration's proposal provides only that a facility with
an approved INRMP for the species in question is precluded from having
critical habitat designated for that species. This makes no change in
the requirements for the preparation and approval of INRMPs, to the
requirements for their contents, or in the requirement for the facility
to consult under section 7 of the ESA due to the presence of the listed
species.
______
Responses of H. Craig Manson to Additional Questions from Senator Boxer
Question 1. Why does the DoD need these waivers when all of these
laws have provisions that specifically exempt military activities in
the case of national security?
Response. For the issue on which the Department of the Interior has
the primary responsibility, critical habitat, the question of
timeliness is more of an issue than the ultimate outcome, and it is
generally the ultimate outcome of a consultation--certainly with
respect to the ESA--that would trigger an exemption. We do acknowledge
that any new consultation could result in restrictions that might
impact the military's ability to train its personnel, but the primary
problem facing the military under the ESA is that the additional time
needed for consultations and reinitiation of consultation if critical
habitat were designated may preclude needed training activities.
There are additional concerns with the accumulation of various
restrictions from multiple critical habitat designations, none of which
in itself may be sufficient to warrant invoking the very cumbersome
exemption process, but which cumulatively may degrade military
readiness and training capabilities.
Question 2. We have. long heard that this Administration is a
defender of State and local rights. However, the DoD exemption
proposals are opposed by a wide variety of State and local
organizations.
Is it correct that the National Association of Attorneys General
passed a resolution in March opposing DoD's exemption from
environmental laws?
Is it correct that the State and local air pollution regulators
opposed DoD's exemptions from environmental laws?
Is it correct that the State and local water quality regulators
opposed DoD's exemptions from environmental laws?
Is it correct that Ingrid Lindemann, Council member from Aurora,
Colorado, and representative of the National League of Cities finds
that ``the ramification of blanket exemption for military facilities
and activities from such laws will serious and untenable at the local
level?
Does it concern the Department of the Interior that there is
widespread local and State opposition to DoD's proposed exemptions?
Response. From the nature of your question it appears that many of
these statements of opposition are based on provisions of the Readiness
and Range Preservation Initiative which are not within the jurisdiction
of the Department of the Interior. The exemptions proposed for critical
habitat and the Marine Mammal Protection Act would not impact on or
relate to the responsibilities of any of these organizations or the
governmental responsibilities of their members. Nevertheless, we take
seriously all expressions of opinion and concern from State and local
governments.
Question 3. The DoD exemption proposal before us would exempt DoD
from many of the environmental laws and regulations that apply to the
private sector. Is this administration abandoning the longstanding
policy that the Federal Government, including DoD, should be held to
the same environmental enforcement standard, enforcement and rules as
the private sector?
Response. Again, responding to the issue for which the Department
'of the Interior is the lead, critical habitat, it has been the policy
of this Administration, as initiated by the previous Administration, to
apply this definitional exclusion from critical habitat designations on
both public and private lands for which adequate management plans are
in place. The only difference is that we are now seeking to codify the
policy for Department of Defense lands so as to avoid adverse impacts
to military readiness and national security should the policy be
overturned by the courts.
Attachment 1
DoD Transfers to FWS: FYs 1990-2002
----------------------------------------------------------------------------------------------------------------
Contaminant(s) of
Base Name Refuge Name State/Region Concern
----------------------------------------------------------------------------------------------------------------
Kingman Reef (Navy).................. Kingman Reef NWR....... Pacific Islands/1...... Munitions and munitions
constituents
Midway Islands (Navy)................ Midway Atoll NRW....... Pacific Islands/1...... Petroleum products,
PCBs, lead-based
paint, metals
Ritidian Point (Navy)................ Guam NWR............... Pacific Islands/1...... Petroleum products,
metals
Fort McClellan (Army)................ Mountain Longleaf NWR.. Alabama/4.............. Munitions and munitions
constituents, lead
Naval Ammunition Support Detachment Viequez NWR............ Puerto Rico/4.......... Munitions and munitions
Viequez. constituents,
petroleum products,
metals, solvents
Driver Naval Radio Transmission Part of Nansemond NWR.. Virginia/5............. PCBs (partially
Facility (Navy). remediated)
Eastern Shore/Fisherman's Island Fisherman's Island NWR. Virginia/5............. Petroleum products, DDT
(Army). (remediated)
Fort Meade (Army).................... Patuxent Research Maryland/5............. Munitions and munitions
Refuge. constituents, lead,
PCBs, pesticides,
solvents
Galeville Airport (Army)............. Shawangunk Grasslands New York/5............. Petroleum products
NWR. (mostly remediated)
Loring Air Force Base (Air Force).... Aroostook NWR.......... Maine/5................ Petroleum products,
PCBs, pesticides,
solvents (mostly
remediated)
Nomans Land Island (So. Weymouth Nomans Land Island NWR. Massachusetts/5........ Munitions and munitions
Naval Air Station) (Navy). constituents
Pease Air Force Base (Air Force)..... Great Bay NWR.......... New Hampshire/5........ Petroleum products,
solvents, arsenic
(mostly remediated
Sudbury Training Annex, Fort Devens Assabet River NWR...... Massachusetts/5........ Munitions and munitions
(Army). constituents, arsenic
Woodbridge Research Facility/Harry Occoquan Bay NWR....... Virginia/5............. PCBs (mostly
Diamond Lab (Army). remediated)
Multiple DoD Facilities*............. Multiple Alaskan NWRs.. Alaska/7............... Petroleum products,
PCBs, munitions and
munitions
constituents, drilling
muds, metals,
pesticides----
----------------------------------------------------------------------------------------------------------------
* A large number of military sites in Alaska are within refuges; when DoD revokes a withdrawal on one of these
sites, the land reverts to the refuge in which it is located pursuant to the Alaska National Interest Lands
Conservation Act and, consequently, the Service becomes a Responsible Party in the chain of liability for
these contaminated sites,
__________
Statement of Frank J. Gaffney, Jr., President and CEO, The Center for
Security Policy
support the troops--by assuring their combat readiness
Chairman Inhofe, I would like to preface my remarks by expressing
my personal appreciation--and, I am sure, that of all the men and women
who wear our Nation's uniform--for your extraordinary leadership on
issues bearing on their readiness for combat.
I can think of no one who has devoted himself more tirelessly and
more courageously than you have to tackling decisions that may, at some
point, determine whether those who serve have been properly trained.
You do so, of course, because you appreciate that the difference can
seem inconsequential at the time the training takes place. But it can
prove determinative--even literally a matter of life and death--in
combat situations.
You deserve particular recognition for your efforts to ensure that
Atlantic-based U.S. forces continue to be able to and experience as
part of their training the closest thing to actual combat conditions:
large-scale, live-fire combined arms exercises. It is nothing less than
a travesty that shortsighted political considerations have been allowed
to trump longstanding--and abiding--national security requirements,
denying the American military future use of its only facility in the
Atlantic dedicated to this purpose: the island of Vieques.
Today, as we witness American servicemen and women risking their
lives for our safety and security, it is simply unfathomable that we
would stint in any way on assuring theirs.
The harrowing experiences being televised hourly from the
battlefields of Iraq; the sorts of threats our troops are encountering
there, in Afghanistan and other theaters of the war on terror; the
manifest need for adaptability in the face of unexpected forms of enemy
action--all underscore the necessity of affording the maximum latitude
to conduct realistic training to those charged with preparing our
troops for war.
As you know, Mr. Chairman, I had the privilege of working early in
my career for the late Senator Henry M. Jackson of Washington State. In
his capacity as chairman of the Senate Energy and Natural Resources
Committee, Scoop was the principal author of, and prime-mover behind,
the Environmental Protection Act and numerous other legislative
initiatives aimed at protecting our habitat.
Like you, Scoop was also committed to the national security of the
United States. I believe he would be horrified at the situation that
confronts our military today as a result of environmental legislation,
regulations and judicial rulings run amok. In fact, I am confident
that--were Senator Jackson still with us--he would be joining you in
supporting at least the modest redress the Defense Department seeks in
the form of the proposed ``2003 Readiness and Range Preservation
Initiative'' now before the Congress.
If anything, I would respectfully suggest that far more relief is
needed than that called for in these minimalist proposals.
Especially in time of war, we should return the training ranges and
facilities our government and people have dedicated to the military's
use to their fullest necessary utilization. By failing to do so, we are
clearly subordinating national security to what is--under present and
foreseeable circumstances--an excessive, and currently insupportable,
regard for the habitats of certain endangered species.
One of our military's finest leaders, Lieutenant General Edward
Hanlon, Jr. USMC, spoke for all those in uniform when he testified in
May 2001 before the House Armed Services Committee in his capacity at
the time as the Commanding General of Camp Pendleton:
. . . Our ability to train effectively is being slowly eroded by
encroachment on many fronts. Urbanization, increasing environmental
restrictions, and increasing civilian demands for airspace, land,
sea space, and radio frequencies threaten the long-term, sustained
use of Marine Corps bases and ranges. Encroachment is a serious and
growing challenge.
Solutions are possible--we must achieve the necessary and right
balance between military readiness, encroachment pressures, and
stewardship responsibilities. . . .
Mr. Chairman, I believe the ``2003 Readiness and Range Preservation
Initiative'' does strike a balance. I fear, frankly, that it favors too
much the status quo concerning environmental protection--at the expense
of military training and the consequent ability of our service
personnel to survive and prevail in combat.
I hope that the Congress will, at an absolute minimum, provide the
relief envisioned in this legislative initiative. I would urge the
members of this committee, however, to give serious consideration as
well to further steps that can materially contribute to the realism and
utility of our military training exercises--and, therefore, to the
likelihood that our loved ones in uniform will be able to conduct their
missions safely and successfully.
I appreciate being afforded the opportunity to contribute to the
committee's deliberations on this important matter and look forward to
responding to the members' questions.
______
Responses of Frank Gaffney to Additional Questions from Senator Inhofe
Question 1. As you noted in your testimony, your former employer
Washington Democrat Senator Scoop Jackson was a prime mover behind the
National Environmental Policy Act.
This committee has oversight over NEPA and it has been a problem
for the military. Let's talk about this problem for a moment in this
oversight hearing.
For example, the Navy spent 20 million dollars on an environmental
impact statement and study and documentation just to test its LFA
SONAR. For that it took 6 years. After it was all over, the Navy was
sued by NRDC who said that this analysis was insufficient, and the Navy
is in the process of losing that case by all indications of the judge.
A loss of that case would mean the United States cannot use this
SONAR system.
Can you tell me about the need for the use of this sonar system?
Response. As I indicated in the course of the hearing, the LFA
Sonar is one of the tools the Navy desperately needs to counter a real
and growing danger: the proliferation worldwide of very quiet diesel-
and battery-powered submarines capable of eluding many, if not all, of
the United States' currently deployed anti-submarine warfare sensor
technologies.
I think this proliferation should be considered no less serious
than that of other weapons of mass destruction insofar as such a
submarine could, in the event it is able to penetrate Navy battle group
defenses, be able to destroy aircraft carriers and other ships manned
by hundreds or even thousands of U.S. personnel.
As a result, I am deeply troubled by the use of environmental
regulations to impede or prevent the development of the LFA Sensor
technology. I fear that if allowed to continue, it will result in the
tragic--and avoidable--loss of life among American servicemen and
women.
Question 2. Can you tell me you thoughts about what your former
boss Scoop Jackson would have thought about this use of NEPA?
Response. As I also indicated during the hearing, I am convinced
that, were Senator Jackson alive today, he would have been appalled by
what he could only perceive as an abuse of NEPA to the detriment of the
national security, whose enhancement he considered to be his surpassing
responsibility. By the way, I am joined in that assessment by Dr.
Robert Kaufman, the author of an outstanding biography of Senator
Jackson's long and distinguished career in public service.
Question 3. Can you tell me where our military could end up without
being able to continue to operate at least under the conditions that
the Clinton Administration applied?
Response. My assessment is that the United States military will,
over time, become ever less capable of performing the tasks assigned to
it unless relief is provided from the combined effects of civilian
encroachment and creeping--if not actually galloping--environmental
restrictions at least to the extent proposed by the Clinton
Administration. There is, of course, no way to say in advance at
exactly what point these effects will give rise to an intolerable
situation (e.g., one in which elements of the armed forces are
demonstrably unready for combat). But there can be little doubt that
that day will inexorably arrive if corrective actions are not taken.
When that day does come, the repercussions will probably be
measured in the avoidable death of both military personnel and of
civilians they are sworn to defend. As Chairman Inhofe has observed,
some of the former have already been lost in friendly fire accidents in
Kuwait directly attributable to the lack of live-fire training now no
longer available to Atlantic-based servicemen and women being sent into
harm's way. Do we need to suffer still more such losses before
addressing this danger?
Question 4. We see each other quite regularly, so I know the answer
to this question, but for the record and the audience, would you mind
going into your qualifications regarding defense policy?
Response. Over the past twenty-seven years, I have been privileged
to work in a number of national security-related positions, both in
government and out. From 1976 until 1983, I served in various
capacities in the U.S. Senate including: working for the Permanent
Subcommittee on Investigations on foreign and defense policy matters;
for its then-chairman, Senator Jackson, as a legislative assistant
supporting him in his capacity as a member of the Armed Services
Committee; and as a professional staff member of that committee under
Chairman John Tower.
From 1983-1987, I was the Deputy Assistant Secretary of Defense for
Nuclear Forces and Arms Control Policy. During the last 7 months of
that period
I acted as the Assistant Secretary of Defense for International
Security Policy following my nomination to that post by President
Reagan.
Since 1988, I have been the President and CEO of the Center for
Security Policy, a non-profit institute focused on national security
and foreign policy issues. Over the past 15 years, I have been a
consultant to the Defense Department, a columnist for the Washington
Times and numerous other publications and a frequent commentator on
national and international television and radio programs concerning
international affairs and related matters.
Question 5. In your expert opinion, then, are you convinced this
legislation is advisable?
Response. In my opinion, the pending legislation, intended
basically to preserve the status quo with respect to environmental
restrictions on U.S. military and training activities, is the bare
minimum required. I would personally like to see still-greater latitude
afforded to the Defense Department to ensure that its military
personnel are fully prepared to perform their vital missions. At the
very least, I strongly urge that the Congress provide no less relief in
this area than that sought by the President.
__________
Statement of Barry W. Holman, Director Defense Infrastructure Issues,
General Accounting Office
military training: dod approach to managing encroachment on training
ranges still evolving
Mr. Chairman and members of the committee: I am pleased to have the
opportunity to discuss the results of our work involving the
constraints that encroachment places on military training. As you know,
senior Department of Defense (DOD) and service officials have testified
that they face growing difficulties in carrying out realistic training
at installations and training ranges\1\ because of so-called
``encroachment''\2\ issues, which limit their ability to train military
forces at the desired levels and proficiencies. The eight encroachment
issues identified by DOD are urban growth around military
installations, competition for radio frequency spectrum; air pollution;
noise pollution; competition for airspace; unexploded ordnance and
munitions components;\3\ endangered species habitat; and protected
marine resources.
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\1\The term ``training ranges'' in this testimony refers to air,
live-fire, ground maneuver, and sea ranges.
\2\DOD defines encroachment as the cumulative result of any and
all outside influences that inhibit normal military training and
testing.
\3\Unexploded ordnance are munitions that (1) have been primed,
fused, armed, or otherwise prepared for action; (2) have been fired,
dropped, launched, projected, or placed in such a manner as to
constitute a hazard to operations, installations, personnel, or
material; and (3) remain unexploded either by malfunction, design or
any other cause. Munitions components--which DOD calls
``constituents''--include things such as propellants, explosives,
pyrotechnics, chemical agents, metal parts, and other inert components
that can pollute the soil or groundwater.
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My testimony is largely built on work we reported on last year
concerning the effects of encroachment in the continental United States
on military training and readiness.\4\ Last year we also reported on
the constraints on training of U.S. forces overseas.\5\ The findings of
the two reviews have some similarities. Today, I would like to briefly
highlight our findings regarding (1) the growing impact of encroachment
on training range capabilities, (2) DOD's efforts to document the
effects of encroachment on readiness and costs, and (3) DOD's process
in addressing encroachment.
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\4\U.S. General Accounting Office, Military Training: DOD Lacks a
Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02-
614 (Washington, DC.; June 11, 2002). The chairmen of the Committee on
Government Reform and its Subcommittee on National Security, Emerging
Threats and International Relations, House of Representatives,
requested this review.
\5\U.S. General Accounting Office, Military Training: Limitations
Exist Overseas but Are Not Reflected in Readiness Reporting, GAO-02-525
(Washington, DC.: Apr. 30, 2002). The chairman of the Subcommittee on
Readiness and Management Support, Committee on Armed Services, U.S.
Senate, requested this review.
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Summary
On the basis of our observations and discussions with officials at
installations and major commands we visited last year here in the
United States, we obtained numerous examples where encroachment had
affected some training range capabilities, requiring workarounds--or
adjustments to training events--and, in some cases, limited training.
We identified similar effects overseas. The potential problem with
workarounds is that they lack realism and can lead to the practice of
tactics that are contrary to those used in combat. Officials, both
stateside and abroad, reported that encroachment at times limits the
time that training ranges are available and the types of training that
can be conducted. Service officials believe that urbanization and
population growth is primarily responsible for encroachment in the
United States and is likely to cause more training range losses in the
future.
Despite concerns voiced repeatedly by DOD officials about the
effects of encroachment on training, DOD's readiness reports did not
indicate the extent to which encroachment was adversely affecting
training readiness and costs. In fact, at the time we did our review,
most readiness reports showed that units had a high state of readiness;
and they were largely silent on the issue of encroachment. Recently,
however, one DOD readiness report indicated that the Air Force has
attributed environmental encroachment to a reduced capability to
conduct flight training.\6\ We have previously reported on limitations
in DOD's readiness reporting.\7\ While improvements in readiness
reporting can and should be made to better show any shortfalls in
training, DOD's ability to fully assess training limitations and their
overall impact on training capabilities and readiness will be limited
without (1) more complete baseline data, such as a comprehensive data
base, on all training range capabilities and the services' training
range requirements and (2) full consideration of how live training
capabilities may be complemented by other forms of training, such as
those available through training devices and simulations. These actions
will not replace other steps needed to deal with encroachment, but they
are key to better define the magnitude of the encroachment problem now
and in the future. At the same time, it is important to note that while
it is widely recognized that encroachment results in workarounds that
can increase training costs, those costs are not easily aggregated to
measure their full effect.
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\6\U.S. Department of Defense, Quarterly Readiness Report to the
Congress, Institutional Training Readiness Report for Fiscal Year 2002,
Unclassified Annex E (Washington, DC.: Jan. 2003).
\7\U.S. General Accounting Office, Military Readiness: New
Reporting System Is Intended to Address Long-Standing Problems, but
Better Planning Is Needed, GAO-03-456 (Washington, DC.: Mar. 28, 2003).
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Although DOD has made some progress in addressing individual
encroachment issues, that effort is still evolving; and more work will
be required to put in place a comprehensive plan, as we recommended
earlier, that clearly identifies steps to be taken, goals and
milestones to track progress, and required funding. We reported last
year that the department had prepared draft action plans that deal with
each encroachment issue separately, but information was limited on
specific actions planned, timeframes for completing them, and funding
needed. In December 2001, DOD directed an Integrated Product Team to
act as the coordinating body for all encroachment issues, develop a
comprehensive set of legislative and regulatory proposals by January
2002, and formulate and manage outreach efforts. Last year and just
recently, DOD submitted a package of legislative proposals, which it
describes as clarifications, seeking to modify several statutory
requirements. We are aware that consideration of these and other
related legislative proposals affecting existing environmental
legislation will need to include potential tradeoffs among multiple
policy objectives and issues on which we have not taken a position. At
the same time, we also understand that DOD recently asked the services
to develop procedures for invoking the national security exceptions
under a number of environmental laws. Historically, DOD and the
services have been reluctant to seek such exceptions; and we are aware
of only a couple of instances where this has been done. In our report
last June on stateside encroachment issues, we made several
recommendations aimed at helping DOD develop a comprehensive plan for
dealing with encroachment and improve the information and data
available for identifying and reporting on the effects of
encroachment.\8\ Our two reports last year recommended that DOD develop
reports that accurately capture the causes of training shortfalls and
objectively report units' ability to meet their training requirements.
Following our reports, DOD issued a range sustainment directive\9\ to
establish policy and assign responsibilities for the sustainment of
test and training ranges; and the Special Operations Command developed
a data base identifying the training ranges it uses, type of training
conducted, and restrictions on training. The department also plans to
develop a set of internal policies and procedures based on the range
sustainment directive, strengthen and empower its management structure
to deal with range issues, and take a more proactive role in working
with local governments and organizations.
---------------------------------------------------------------------------
\8\GAO-02-614.
\9\U.S. Department of Defense, Directive: Sustainment of Ranges
and Operating Areas (OPAREAs), 3200.15, Jan. 10, 2003.
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We are not making any new recommendations in this testimony. As you
may be aware, Mr. Chairman, section 366 of the Bob Stump National
Defense Authorization Act for Fiscal Year 2003 requires a series of
yearly reports to the Congress dealing with encroachment issues
beginning this year, and a requirement for GAO to review those reports.
The first of those reports was required to be submitted along with the
President's budget for fiscal year 2004. That report was to describe
DOD's progress in developing a comprehensive plan to use existing
authorities to address training constraints on the use of military
lands, marine areas, and airspace that are available in the United
States and overseas for training. However, to our knowledge, DOD has
not yet issued this report. The Act also requires the submission of a
report not later than June 30, 2003, on plans of the department to
improve its readiness reporting to reflect the readiness impact that
training constraints have on specific units of the armed forces.
Background
Military ranges and training areas are used primarily to test
weapon systems and train military forces. Required facilities include
air ranges for air-to-air, air-to-ground, drop zone, and electronic
combat training; live-fire ranges for artillery, armor, small arms, and
munitions training; ground maneuver ranges to conduct realistic force-
on-force and live-fire training at various unit levels; and sea ranges
to conduct ship maneuvers for training.
According to DOD officials, there has been a slow but steady
increase in encroachment issues that have limited the use of training
facilities, and the gradual accumulation of these issues increasingly
threatens training readiness. DOD has identified eight such
encroachment issues:
<bullet> Designation of critical habitat under the Endangered
Species Act of 1973. Under the Act, agencies are required to ensure
that their actions do not destroy or adversely modify habitat that has
been designated for endangered or threatened species. Currently, over
300 such species are found on military installations. In 1994, under
the previous administration 14 agencies signed a Federal memorandum of
understanding\10\ for implementing the Endangered Species Act.\11\ The
agencies agreed to establish or use existing regional interagency
working groups to identify geographic areas within which the groups
would coordinate agency actions and overcome barriers to conserve
endangered species and their ecosystems. Such cooperative management
could help DOD share the burden of land use restrictions on military
installations that are caused by encroachment issues, but
implementation of this approach has been limited. We are currently
reviewing this issue.\12\
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\10\Federal Interagency Memorandum of Understanding for
Implementation of the Endangered Species Act, September 1994.
\11\The 14 Federal agencies included the Department of
Agriculture's Forest Service; the Department of Defense; the U.S Army
Corps of Engineers; the Department of Commerce's National Marine
Fisheries Service; the Department of the Interior's Bureau of Land
Management, Bureau of Mines, Bureau of Reclamation, Fish and Wildlife
Service, Minerals Management Service, and National Park Service; the
Department of Transportation's Federal Aviation Administration, Federal
Highway Administration, and Coast Guard; and the Environmental
Protection Agency.
\12\At the request of the Committee on Government Reform and its
Subcommittee on National Security, Emerging Threats and International
Relations, House of Representatives, we are reviewing (1) the extent to
which management of endangered species and related land use
restrictions are shared by DOD and other Federal landowners and (2) the
efforts that DOD and/or other Federal landowners have undertaken to
promote cooperative management and additional steps needed to enhance
this approach. We expect to report on the results of this work later
this year.
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<bullet> Application of environmental statutes to military
munitions. DOD believes that the Environmental Protection Agency could
apply environmental statutes to the use of military munitions, shutting
down or disrupting military training. According to DOD officials,
uncertainties about future application and enforcement of these
statutes limit their ability to plan, program, and budget for
compliance requirements.
<bullet> Competition for radio frequency spectrum. The
telecommunications industry is pressuring for the reallocation of some
of the radio frequency spectrum from DOD to commercial control. DOD
reports that over the past decade, it has lost about 27 percent of the
frequency spectrum allocated for aircraft telemetry. And we previously
reported additional allocation of spectrum could affect space systems,
tactical communications, and combat training.\13\
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\13\U.S. General Accounting Office, Defense Spectrum Management:
More Analysis Needed to Support Spectrum Use Decisions for the 1755-
1850MHz Band, GAO-01-795 (Washington, DC.: Aug. 20, 2001).
---------------------------------------------------------------------------
<bullet> Marine regulatory laws that require consultation with
regulators when a proposed action may affect a protected resource.
Defense officials say that the process empowers regulators to impose
potentially stringent measures to protect the environment from the
effects of proposed training in marine environments.
<bullet> Competition for airspace. Increased airspace congestion
limits the ability of pilots to train as they would fly in combat.
<bullet> Clean Air Act requirements for air quality. DOD officials
believe the Act requires controls over emissions generated on Defense
installations. New or significant changes in range operations also
require emissions analyses, and if emissions exceed specified
thresholds, they must be offset with reductions elsewhere.
<bullet> Laws and regulations mandating noise abatement. DOD
officials stated that weapon systems are exempt from the Noise Control
Act of 1972, but DOD must assess noise impact under the National
Environmental Policy Act. As community developments have expanded
closer to military installations, concerns over noise from military
operations have increased.
<bullet> Urban growth. DOD says that unplanned or ``incompatible''
commercial or residential development near training ranges compromises
the effectiveness of training activities. Local residents have filed
lawsuits charging that military operations lowered the value or limited
the use of their property.
To the extent that encroachment adversely affects training
readiness, opportunities exist for the problems to be reported in
departmental and military service readiness reports. The Global Status
of Resources and Training System is the primary means units use to
compare readiness against designed operational goals.\14\ The system's
data base indicates, at selected points in time, the extent to which
units possess the required resources and training to undertake their
wartime missions. In addition, DOD is required under 10 U.S.C. 117 to
prepare quarterly readiness reports to Congress. The reports are based
on briefings to the Senior Readiness Oversight Council, a forum
assisted by the Defense Test and Training Steering Group. In June 2000,
the council directed the steering group to investigate encroachment
issues and develop a comprehensive plan of action.
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\14\The Global Status of Resources and Training System, which
units use to report their readiness status monthly or whenever a change
occurs. Units report readiness in four resource areas, including
training. If a unit is not at the highest readiness level, it must
identify the reasons from a list that includes training areas.
Commanders may also include narrative statements with more detailed
explanations.
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The secretaries of the military services are responsible for
training personnel and for maintaining their respective training ranges
and facilities. Within the Office of the Secretary of Defense, the
Under Secretary of Defense for Personnel and Readiness develops
policies, plans, and programs to ensure the readiness of the force and
provides oversight on training; the Deputy Under Secretary of Defense
for Installations and Environment develops policies, plans, and
programs for DOD's environmental, safety, and occupational health
programs, including compliance with environmental laws, conservation of
natural and cultural resources, pollution prevention, and explosive
safety; and the Director, Operational Test and Evaluation, provides
advice on tests and evaluations.
Encroachment Has Reduced Some Capabilities, and Its Effects Are Likely
to Grow
On the basis of what we have seen, the impact of encroachment on
training ranges has gradually increased over time, reducing some
training capabilities. Because most encroachment problems are caused by
urban development and population growth, these problems are expected to
increase in the future.
Although the effects vary by service and by individual
installation, encroachment has generally limited the extent to which
training ranges are available or the types of training that can be
conducted. This limits units' ability to train as they would expect to
fight and causes workarounds that may limit the amount or quality of
training. Installations overseas all reported facing similar training
constraints.
Some of the problems reported by installations we visited last year
were those related to urban growth, radio frequency spectrum
interference, air quality, noise, air space, and endangered species
habitat. For example, in response to local complaints, Fort Lewis,
Washington, voluntarily ceased some demolitions training. Eglin Air
Force Base, Florida, officials reported the base's major target control
system received radio frequency spectrum interference from nearby
commercial operators. Nellis Air Force Base, Nevada, officials reported
that urban growth near the base and related safety concerns had
restricted flight patterns of armed aircraft, causing mission delays
and cancellations. They also reported that they receive approximately
250 complaints about noise each year. About 10 percent of Marine Corps
Base Camp Pendleton, California, had been designated as critical
habitat for endangered species. Atlantic Fleet officials reported
encroachment problems stemming from endangered marine mammals and
noise. They said that the fleet's live-fire exercises at sea were
restricted, and night live-fire training was not allowed.
More recently, in January 2003, DOD's Special Operations Command
reported that its units encounter a number of obstacles when scheduling
or using training ranges.\15\ According to the report, the presence of
endangered species and marine mammals on or near ranges result in
restrictions on training for at least part of the year--closing the
area to training, prohibiting live fire, or requiring modified
operations. For example, a variety of endangered species live on the
training areas of the Navy Special Warfare Command in California,
particularly on Coronado and San Clemente islands. Due to environmental
restrictions, Navy Special Warfare units report that they can no longer
practice immediate action drills on Coronado beaches; they cannot use
training areas in Coronado for combat swimmer training; and they cannot
conduct live-fire and maneuver exercises on much of San Clemente Island
during some seasons. In addition, the Special Operations Command owns
no training ranges of its own and largely depends on others for the use
of their training ranges. As a result, command officials advised us
that they must train under operational and scheduling restrictions
imposed by its host commands. For example, the command normally trains
at night; and because range management personnel are not often
available at night, this prevents such training. Also, on many ranges,
the command reported that priority is given to larger units than
special operations units causing it to postpone or cancel training.
According to the report, ranges are also inadequately funded for
construction, maintenance, repairs, and upgrades. This results in some
commanders using their own funds in order to prevent the ranges from
becoming dangerous or unusable.
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\15\U.S. Special Operations Command, Tiger Team Report: Global
Special Operations Forces Range Study, Jan. 27, 2003. The Special
Operations Command recommended that all components needed to create
master range plans that addressed their current and future range issues
and solutions. The command also recommended that plans identify and
validate training requirements and facilities available and define the
acceptable limits of workarounds.
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The Special Operations Command, while expressing concern for the
future, reported that none of the eight encroachment issues identified
by DOD had yet stopped military training, due mostly to the creativity
and flexibility of its commanders and noncommissioned officers. In
general, when obstacles threaten training, the unit will find a
workaround to accomplish the training. In some instances, the unit may
travel to another training facility, costing additional money for
transportation and potentially requiring an extended stay at the
training site. By sending units away to train, the command limits its
ability to send people on future travel for training or missions due to
efforts to control the number of days per year that servicemembers are
deployed away from home. Other workarounds consist of commands using
different equipment, such as plastic-tipped bullets; changing
maneuvering, firing, and training methods to overcome training
obstacles; and using facilities that need repair. According to the
Special Operations Command, all of these workarounds expend more funds
and manpower in order to accomplish its training mission.
DOD and military service officials said that many encroachment
issues are related to urban growth around military installations. They
noted that most, if not all, encroachment issues result from urban and
population growth and that around DOD installations this is increasing
at a rate higher than the national average. Figure 1 illustrates the
increase in urban growth encroachment near Fort Benning, Georgia, while
the fort has remained relatively unchanged. According to DOD officials,
new residents near installations often view military activities as an
infringement on their rights, and some groups have organized in efforts
to reduce operations such as aircraft and munitions training. At the
same time, according to Defense officials, the increased speed and
range of weapon systems are expected to increase training range
requirements.
Figure 1: Historical and Projected Urban Growth Near Fort Benning,
Georgia:
[See PDF for image]
Note: (Top left to right) Urban growth near Fort Benning, Georgia,
in 1955 and 1985. (Bottom left to right) Urban growth near Fort
Benning, Georgia, in 1996 and projected for 2008.
[End of figure]
Effects of Encroachment on Training Readiness and Costs Have Not Been
Reflected in Most Service Readiness Reports
Despite the loss of some training range capabilities, service
readiness data did not show the impact of encroachment on training
readiness. However, DOD's January 2003 quarterly report to Congress did
tie an Air Force training issue directly to encroachment.
Even though DOD officials in testimoneys and many other occasions
have repeatedly cited encroachment as preventing the services from
training to standards, DOD's primary readiness reporting system did not
reflect the extent to which encroachment was a problem. In fact, it
rarely cited training range limitations at all. Similarly, DOD's
quarterly reports to Congress, which should identify specific readiness
problems, hardly ever mentioned encroachment as a problem.
This is not surprising to us because we have long reported on
limitations in DOD's readiness reporting system and the need for
improvements; our most recent report was issued just last week.\16\
Furthermore, on the basis of our prior reports on readiness issues and
our examination of encroachment, we do not believe the absence of data
in these reports concerning encroachment should be viewed simply as
``no data, no problem!'' Rather, as with other readiness issues we have
examined over time, it suggests a lack of attention on the part of DOD
in fully assessing and reporting on the magnitude of the encroachment
problem.
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\16\GAO-03-456.
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However, DOD's most recent quarterly report did indicate a training
issue that is tied directly to encroachment. The January 2003
Institutional Training Readiness Report showed that the Air Force has
rated itself as C-2 for institutional flight training.\17\ This
indicates that it is experiencing some deficiencies with limited impact
on capabilities to perform required institutional training. The Air
Force attributed this to training range availability and encroachment
combined with environmental concerns that are placing increasing
pressure on its ability to provide effective and realistic training.
The Air Force also reported that sortie\18\ cancellations are becoming
a more common occurrence and may soon adversely impact the quality of
training. For example, the spotting of a Sonoran Pronghorn on the Barry
M. Goldwater Range forces immediate cancellation or relocation of
scheduled missions.
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\17\By a way of comparison, C-1 rating is when a unit is at its
highest readiness level and is able to fully meet its mission.
\18\A sortie is one mission by a single aircraft.
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Readiness reporting can and should be improved to address the
extent of training degradation due to encroachment and other factors.
However, it will be difficult for DOD to fully assess the impact of
encroachment on its training capabilities and readiness without (1)
obtaining more complete information on both training range requirements
and the assets available to support those requirements and (2)
considering to what extent other complementary forms of training may
help mitigate some of the adverse impacts of encroachment. The
information is needed to establish a baseline for measuring losses or
shortfalls.
We previously reported that the services did not have complete
inventories of their training ranges and that they do not routinely
share available inventory data with each other (or with other
organizations such as the Special Operations Command). DOD officials
acknowledge the potential usefulness of such data and have some efforts
underway to develop these data. However, since there is no complete
directory of DOD-wide training areas, commanders sometimes learn about
capabilities available on other military bases by chance. All this
makes it extremely difficult for the services to leverage assets that
may be available in nearby locations, increasing the risk of
inefficiencies, lost time and opportunities, delays, added costs, and
reduced training opportunities.
Although the services have shared training ranges, these
arrangements are generally made through individual initiatives, not
through a formal or organized process that easily and quickly
identifies all available infrastructure. Last year, for example, our
reported on encroachment\19\ noted that the Navy Special Operations
forces recently learned that some ranges at the Army's Aberdeen Proving
Grounds in Maryland are accessible from the water--a capability that is
a key requirement for Navy team training. Given DOD's increasing
emphasis on joint capabilities and operations, having an inventory of
defense-wide training assets would seem to be a logical step toward a
more complete assessment of training range capabilities and shortfalls
that may need to be addressed.
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\19\GAO-02-614.
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This issue was recently reinforced by the January 2003 range report
by the Special Operations Command, which found that none of the
services had joint data bases or management tools to combine all
training ranges into a single tool accessible to all commands. The
command concluded that such a centralized data base would contribute to
improving unit readiness and mission success for all components. At the
same time, we cannot be sure of the extent to which recent military
operations in the Middle East could impact future training
requirements. DOD will need to reassess lessons learned from these
operations.
Each service has, to varying degrees, assessed its training range
requirements and limitations due to encroachment. For example, the
Marine Corps has completed one of the more detailed assessments of the
degree to which encroachment has affected the training capability of
Camp Pendleton, California. The assessment determined to what extent
Camp Pendleton could support the training requirements of two unit
types and two specialties by identifying the tasks that could be
conducted to standards in a ``continuous'' operating scenario (e.g., an
amphibious assault and movement to an objective) or in a fragmented
manner (tasks completed anywhere on the camp). The analysis found that
from 60 to 69 percent of continuous tasks and from 75 to 92 percent of
the other training tasks could be conducted to standards. Some of the
tasks that could not be conducted to standards were the construction of
mortar-and artillery-firing positions outside of designated areas,
cutting of foliage to camouflage positions, and terrain marches. Marine
Corps officials said they might expand the effort to other
installations. At the same time, the Air Force has funded a study at
Shaw Air Force Base, South Carolina, which focuses on airspace
requirements; and the Center for Navy Analysis is reviewing
encroachment issues at Naval Air Station Fallon, Nevada. We have not
had an opportunity to review the progress or the results of these
efforts. In its 2003 range study report, the Special Operations Command
compiled a data base identifying the training ranges it uses, type of
training conducted, and restrictions on training. In its study, the
command recommended that a joint training range data base be produced
and made available throughout DOD so that all training ranges,
regardless of service ownership, may be efficiently scheduled and
utilized.
While recent efforts show increased activity on the part of the
services to assess their training requirements, they do not yet
represent a comprehensive assessment of the impacts of encroachments.
We have also previously reported that the services have not
incorporated an assessment of the extent that other types of
complementary training could help offset shortfalls. We believe these
assessments, based solely on live training, may overstate an
installation's problems and do not provide a complete basis for
assessing training range needs. A more complete assessment of training
resources should include assessing the potential for using virtual or
constructive simulation technology to augment live training. However,
based on our prior work I must emphasize, Mr. Chairman, that these
types of complementary training cannot replace live training and cannot
fully eliminate the impact of encroachment, though they may help
mitigate some training range limitations.
In addition, while some service officials have reported increasing
costs because of workarounds related to encroachment, the services'
data systems do not capture these costs in any comprehensive manner. In
its January 2003 report, the Special Operations Command noted that the
services lacked a metric-base reporting system to document the impact
of encroachment or track the cost of workarounds in either manpower or
funds. We noted last year that DOD's overall environmental conservation
funding, which also covers endangered species management, had
fluctuated, with an overall drop (except for the Army) in obligations
since 1999. If the services are indeed conducting more environmental
assessments or impact analyses as a result of encroachment, the
additional costs should be reflected in their environmental
conservation program obligations.
Progress in Addressing Encroachment Issues Still Evolving
DOD has made some progress in addressing individual encroachment
issues, including individual action plans and legislative proposals.
But more will be required to put in place a comprehensive plan that
clearly identifies steps to be taken, goals and milestones to track
progress, and required funding. Senior DOD officials recognized the
need to develop a comprehensive plan to address encroachment issues
back in November 2000, but efforts to do so are still evolving. To
their credit, DOD and the services are increasingly recognizing and
initiating steps to examine range issues more comprehensively and in a
less piecemeal fashion.
Recent efforts began in 2000 when a working group of subject matter
experts was tasked with drafting action plans for addressing the eight
encroachment issues. The draft plans include an overview and analysis
of the issues; and current actions being taken, as well as short-, mid-
, and long-term strategies and actions to address the issues. Some of
the short-term actions implemented include the following.
<bullet> DOD has finalized, and the services are implementing, a
Munitions Action Plan--an overall strategy for addressing the life-
cycle management of munitions to provide a road map that will help DOD
meet the challenges of sustaining its ranges.
<bullet> DOD formed a Policy Board on Federal Aviation Principles
to review the scope and progress of DOD activities and to develop the
guidance and process for special use air space.
<bullet> DOD formed a Clean Air Act Services' Steering Committee
to review emerging regulations and to work with the Environmental
Protection Agency and the Office of Management and Budget to protect
DOD's ability to train.
<bullet> DOD implemented an Air Installation Compatible Use Zone
Program to assist communities in considering aircraft noise and safety
issues in their land use planning.
Some future strategies and actions identified in the draft plans
addressing the eight encroachment issues include the following.
<bullet> Enhancing outreach efforts to build and maintain
effective working relationships with key stakeholders by making them
aware of DOD's need for training ranges, its need to maintain
readiness, and its need to build public support for sustaining training
ranges.
<bullet> Developing assessment criteria to determine the
cumulative effect of all encroachment restrictions on training
capabilities and readiness. The draft plan noted that while many
examples of endangered species/ critical habitat and land use
restrictions are known, a programmatic assessment of the effect these
restrictions pose on training readiness has never been done.
<bullet> Ensuring that any future base realignment and closure
decisions thoroughly scrutinize and consider the potential encroachment
impact and restrictions on operations and training of recommended base
realignment actions.
<bullet> Improving coordinated and collaborative efforts between
base officials and city planners and other local officials in managing
urban growth.
In December 2001, the Deputy Secretary of Defense established a
senior-level Integrated Product Team to act as the coordinating body
for encroachment efforts and to develop a comprehensive set of
legislative and regulatory proposals by January 2002. The team agreed
on a set of possible legislative proposals for clarifying some
encroachment issues. After internal coordination deliberations, the
proposals were submitted in late April 2002 to Congress for
consideration. According to DOD, the legislative proposals sought to
``clarify'' the relationship between military training and a number of
provisions in various conservation and compliance statutes, including
the Endangered Species Act, the Migratory Bird Treaty Act, the Marine
Mammal Protection Act, and Clean Air Act. DOD's proposals would, among
other things, do the following:
<bullet> Preclude designation under the Endangered Species Act of
critical habitat on military lands for which Sikes Act Integrated
Natural Resources Management Plans have been completed. At the same
time, the Endangered Species Act requirement for consultation between
DOD and other agencies on natural resource management issues would
remain.
<bullet> Permit DOD to ``take'' migratory birds under the
Migratory Bird Treaty Act without action by the Secretary of the
Interior, where the taking would be in connection with readiness
activities, and require DOD to minimize the taking of migratory birds
to the extent practicable without diminishment of military training or
other capabilities, as determined by DOD.
<bullet> Modify the definition of ``harassment'' under the Marine
Mammal Protection Act as it applies to military readiness
activities.\20\
---------------------------------------------------------------------------
\20\The Marine Mammal Protection Act's definition of
``harassment'' has been a source of confusion. According to DOD, the
statute defines ``harassment'' in terms of ``annoyance'' or the
``potential to disturb,'' standards that DOD asserts are difficult to
interpret. The statute, 10 U.S.C. 1362, defines the term as any act of
pursuit, torment, or annoyance which has the potential to injure or
disturb a marine mammal by causing disruption to behavioral patterns
such as migration, nursing, feeding, breeding, and sheltering.
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<bullet> Modify the conformity provisions of the Clean Air Act.
The proposal would maintain the Department's obligation to conform
military readiness activities to applicable State Implementation Plans
but would give DOD 3 years to demonstrate conformity. In the meantime,
DOD could continue military readiness activities.
<bullet> Change the definition of solid waste under the Solid
Waste Disposal Act to generally exclude explosives, unexploded
ordnance, munitions, munition fragments, or constituents when they are
used in military training, research, development, testing and
evaluation; when not removed from an operational range; when promptly
removed from an off-range location; or when recovered, collected, and
destroyed on range at operational ranges. Solid waste would not include
buried unexploded ordnance when burial was not a result of product use.
Of the above proposals, Congress passed, as part of the fiscal year
2003 defense authorization legislation, a provision related to the
Migratory Bird Treaty Act.\21\ Under that provision, until the
Secretary of the Interior prescribes regulations to exempt the armed
forces from incidental takings of migratory birds during military
readiness activities, the protections provided for migratory birds
under the Act do not apply to such incidental takings. In addition,
Congress authorized DOD to enter agreements to purchase property or
property interests for natural resource conservation purposes, such as
creating a buffer zone near installations to prevent encroachment
issues, such as urban growth.\22\
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\21\Section 315, P.L. 107-314, Dec. 2, 2002.
\22\Section 2811, P.L. 107-314, Dec. 2, 2002 (codified at 10
U.S.C. 2684).
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In February 2003, DOD submitted to Congress the Readiness and Range
Preparedness Initiative for fiscal year 2004. In it, the department
restates a number of legislative proposals from 2002 and includes a
proposal concerning the Marine Mammal Protection Act. In the 2004
initiative, the department seeks to reconcile military readiness
activities with the Marine Mammal Protection Act by adding language to
sections of title 16 of the U.S. Code.
We are aware that consideration of these legislative proposals
affecting existing environmental legislation will need to include
potential tradeoffs among multiple policy objectives and issues on
which we have not taken a position. At the same time, we also
understand that DOD recently asked the services to develop procedures
for invoking the national security exceptions under a number of
environmental laws. Historically, DOD and the services have been
reluctant to seek such exceptions; and we are aware of only a couple of
instances where this has been done.
Our two reports last year both recommended that DOD develop reports
that accurately capture the causes of training shortfalls and
objectively report units' ability to meet their training requirements.
At the time we completed our reviews in 2002, DOD's draft action plans
for addressing the eight encroachment issues had not been finalized.
DOD officials told us that they consider the plans to be working
documents and stressed that many concepts remain under review and may
be dropped, altered, or deferred, while other proposals may be added.
No details were available on overall actions planned, clear assignments
of responsibilities, measurable goals and timeframes for accomplishing
planned actions, or funding requirements--information that would be
needed in a comprehensive plan. Our report on stateside encroachment
problems also recommended that DOD develop and maintain a full and
complete inventory of service and department-wide training
infrastructure; consider more alternatives to live training; and ensure
that the plan for addressing encroachment includes goals, timelines,
responsibilities, and projected costs.\23\ Our recently issued report
on overseas training also recommended that DOD develop reports that
accurately capture the causes of training shortfalls and objectively
report units' ability to meet their training requirements.\24\
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\23\GAO-02-614.
\24\GAO-02-525.
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Following our reports, DOD issued a range sustainment directive to
establish policy and assign responsibilities for the sustainment of
test and training ranges,\25\ and the Special Operations Command
developed a data base identifying the training ranges it uses, type of
training conducted, and restrictions on training. In addition, DOD is
working with the other regulatory agencies in the Federal Government to
manage the way in which laws are enforced and plans to issue four more
directives that cover outreach, range clearance, community noise, and
Air Installation Compatibility Use Zone.
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\25\U.S. Department of Defense, Directive: Sustainment of Ranges
and Operating Areas (OPAREAs), 3200.15, Jan. 10, 2003.
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In the Bob Stump National Defense Authorization Act for Fiscal Year
2003, Congress required the Secretary of Defense to develop a
comprehensive plan for using existing authorities available to the
Secretary of Defense and the secretaries of the military departments to
address training constraints on the use of military lands, marine
areas, and airspace that are available in the United States and
overseas for training.\26\ As part of the preparation of the plan, the
Secretary of Defense was expected to conduct an assessment of current
and future training range requirements of the armed forces and an
evaluation of the adequacy of current DOD resources (including virtual
and constructive training assets as well as military lands, marine
areas, and airspace available in the United States and overseas) to
meet those current and future training range requirements. Also, as you
may be aware, Mr. Chairman, that Act requires annual reports to
Congress dealing with encroachment issues beginning this year and
requires GAO to review those reports. The first of those reports was
required to be submitted along with the President's budget for fiscal
year 2004. That report was to describe the progress in developing a
comprehensive plan to address training constraints. To our knowledge,
Mr. Chairman, DOD has not completed a comprehensive plan or provided
Congress with the progress report. Officials of the Office of the
Secretary of Defense said that they plan to report to Congress later
this calendar year. The Act also requires the submission of a report
not later than June 30, 2003, on the department's plans to improve its
readiness reporting to reflect the readiness impact that training
constraints have on specific units of the armed forces.
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\26\Section 366, P.L. 107-314, Dec. 2, 2002.
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This concludes my statement. I would be pleased to answer any
questions you or other members of the committee may have at his time.
Contact and Acknowledgment:
For further contacts regarding this statement, please contact Barry
W. Holman on (202) 512-8412. Individuals making key contributions to
this statement include Tommy Baril, Byron Galloway, Jane Hunt, John
Lee, Mark A. Little, Patti Nichol, Michelle K. Treistman, and John Van
Schaik.
______
Responses of Barry Holman to Additional Questions from Senator Inhofe
Question 1. For the record and the audience, would you mind going
into your qualifications regarding defense policy and environmental
policy?
Response. GAO products involving work such as our assessment of
training range and encroachment issues are not the product of one
person but represent a team effort of multi-disciplined and multi-
experienced individuals producing an institutional product. In this
recent effort, GAO brought to bear the work of persons experienced in
Defense readiness, training, infrastructure, natural resource and
encroachment issues, and legal counsel. As a senior manager, it is my
responsibility to ensure that we have the right team in place with the
requisite knowledge, skills, and abilities. I believe we did that with
regard to this body of work.
Question 2. Is there indeed a problem here with regard to
encroachment?
Response. Encroachment is a problem but the magnitude of that
problem is not clear. GAO's June 2002 report on encroachment (U.S.
General Accounting Office, Military Training: DOD Lacks a Comprehensive
Plan to Manage Encroachment on Training Ranges, GAO-02-614 [Washington,
DC.: June 11, 2002]) concluded that ``DOD and the military services
have lost training range capabilities and can be expected to experience
increased losses in the future absent efforts to mitigate
encroachment.'' It also concluded that ``[t]he fact that DOD and
service officials in congressional testimoneys and other forums cite
the adverse effects of encroachment on training, while commanders are
not reporting any adverse effects [in readiness reports], suggests that
additional steps are needed to improve the reporting process.''
My April 2, 2003, testimony before the Senate Committee on
Environment and Public Works noted that ``Although the effects vary by
service and by individual installation, encroachment has generally
limited the extent to which training ranges are available or the types
of training that can be conducted. This limits units' ability to train
as they would expect to fight and causes workarounds that may limit the
amount or quality of training.''
Question 3. You testified last year on this topic before the House
of Representatives and have been an observer of what's happening. In
the past year, do you believe that litigation and workarounds have
trended better or worse for the military?
Response. GAO has not done a comprehensive analysis of relevant
litigation that would enable us to state whether there have been
specific trends and what the impact may be for the military, although
recent lawsuits could potentially influence how the current critical
habitat provisions impact all Federal agencies, including the military.
For example, the U.S. Fish and Wildlife Service (FWS) had been
following a general practice of not designating critical habitat, based
on its determination that such designation conveys little additional
protection to species. However, some lawsuits have successfully
challenged FWS' failure to designate critical habitat for certain
species. As a result, FWS is designating more critical habitat than it
has in the past, and these designations may include military land that
would have otherwise not been affected by existing critical habitat
provisions.
In addition, a recent Federal district court decision has the
potential to result in another change in how FWS is implementing
critical habitat provisions, specifically regarding its exclusion of
lands from a designation if special management provisions are already
in effect. (Center For Biological Diversity v. Norton, No. CV 01-409
TUC DCB [D. Ariz. January 13, 2003].) In this case, the court ruled
that the U.S. Forest Service's land and resource management plans,
prepared under a law governing forest management, did not eliminate the
need to designate land as critical habitat under the Endangered Species
Act. If, under current law, FWS excludes military lands from a critical
habitat designation on the basis that the lands are covered by an
Integrated Natural Resources Management Plan, courts might apply the
same rationale and preclude this approach.
Question 4. The GAO report you authored has been characterized in
the press and elsewhere as being quite adverse to the military's
perspective on military encroachment. Would you please set the record
straight about these characterizations of your work?
Response. We are aware of numerous instances where others have
referenced GAO's June 2002 report to suggest GAO was saying that DOD's
training and readiness had not been adversely affected by encroachment
issues. However, GAO's reports and testimoneys on this subject have
clearly noted the services' loss of some training range capabilities
due to encroachment while also noting that the services' readiness data
largely did not show the extent to which encroachment has adversely
affected training or readiness. As noted in our April 2 testimony,
``This is not surprising to us because we have long reported on
limitations in DOD's readiness reporting system and the need for
improvements. . . . Furthermore, on the basis of our prior reports on
readiness issues and our examination of encroachment, we do not believe
the absence of data in these reports concerning encroachment should be
viewed simply as 'no data, no problem!' Rather, as with other readiness
issues we have examined over time, it suggests a lack of attention on
the part of DOD in fully assessing and reporting on the magnitude of
the encroachment problem.''
Question 5. Where do you see the future of the military's training
without some stabilization of the laws in this area?
Response. As noted in our response to question 2 above, our June
2002 report concluded that ``DOD and the military services have lost
training range capabilities and can be expected to experience increased
losses in the future absent efforts to mitigate encroachment.'' That
report noted the need for a comprehensive plan to manage encroachment
on training ranges. Our April 2 testimony noted that while DOD has made
some progress in addressing individual encroachment issues, that effort
is still evolving and more work will be required to put in place a
comprehensive plan that clearly identifies steps to be taken, goals and
milestones to track progress, and required funding. We noted that in
the Bob Stump National Defense Authorization Act for Fiscal Year 2003,
Congress required the Secretary of Defense to develop a comprehensive
plan for using existing authorities available to the Secretary of
Defense and the secretaries of the military departments to address
training constraints on the use of military lands, marine areas, and
airspace that are available in the United States and overseas for
training. As part of the preparation of the plan, the Secretary of
Defense was expected to conduct an assessment of current and future
training range requirements of the armed forces and an evaluation of
the adequacy of current DOD resources to meet those current and future
training range requirements. That act requires annual reports to
Congress dealing with encroachment issues beginning this year and
requires GAO to review those reports. The first of those reports was
required to be submitted along with the President's budget for fiscal
year 2004. That report was to describe the progress in developing a
comprehensive plan to address training constraints. DOD has not yet
submitted its initial report.
In DOD's August 2001 Endangered Species Act Sustainable Ranges
Action Plan, DOD identified a combination of legislative and
administrative actions to deal with encroachment issues. However, our
work to date, and limitations in DOD's own assessments, provides us
with insufficient basis to comment on the extent to which legislation
may be required to deal with the issue.
Question 6. If we can achieve better results for the species by
means other than critical habitat designation, doesn't it just make
common sense to achieve these common goals by less restrictive means?
Response. If we can achieve better results for threatened and
endangered species by means that are less restrictive than critical
habitat designation, it makes sense to use the alternative means. The
proposed legislation would preclude the FWS from designating critical
habitat on a military installation if the installation has a completed
Integrated Natural Resources Management Plan, pursuant to the Sikes Act
Improvement Act, that addresses threatened or endangered species and
their habitat. While this proposed change may be less restrictive than
designation of critical habitat, the proposal will not necessarily
achieve better results for species. In fact, depending on how it is
implemented and enforced, the proposed legislation could result in
reduced flexibility for FWS and the National Marine Fisheries Service
in carrying out their responsibilities under the Endangered Species Act
to protect the habitat of threatened and endangered species. The
proposal could also represent a fundamental shift in emphasis from the
strong role that all Federal agencies, including DOD, are expected to
play in protecting threatened and endangered species under the
Endangered Species Act. Currently, the Endangered Species Act requires
that all Federal agencies protect threatened and endangered species and
their habitats, while the Sikes Act, as amended, provides that there be
no net loss in the capability of the installation to support its
military mission when preparing resource management plans for military
lands.
Question 7. Can some legislation in these areas make a difference
for the military and aid in training?
Response. It is likely that some of these changes would make a
difference for the military and aid in training. As we concluded in our
June 2002 report, DOD can be expected to experience increased losses of
training range capabilities in the future, absent efforts to mitigate
encroachment. However, we cannot determine the extent of the proposed
legislation's affect because the military services do not have data to
show the extent to which critical habitat for threatened and endangered
species and other encroachment issues have adversely affected training.
__________
Statement of Daniel S. Miller, First Assistant Attorney General,
Colorado Department of Law, on Behalf of the Attorneys General of
Arizona, California, Colorado, Delaware, Hawaii, Idaho, Massachusetts,
New Hampshire, New Mexico, Northern Mariana Islands, New York, Oregon,
South Dakota, Utah, and Washington
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.
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\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.
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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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Paragraph 2019(b)(2) arguably precludes state superfund
authority over munitions-related contamination on operational ranges.
<bullet> 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\
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\2\See Exhibit 1.
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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.
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\3\``Readiness and Range Preservation Initiative Summary,'' dated
April 18, 2002, p. 7 (attached as Exhibit 2).
\4\Id.
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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.
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\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. Sec. 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 Sec. 46.03.710 constitutes a
violation of RCRA's waiver of immunity provision, 42 U.S.C.
Sec. 6961(a). Alaska Statutes Sec. 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.''
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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.
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\6\Exhibit 2, p. 6.
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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.
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\7\42 U.S.C. Sec. Sec. 6961(a), 7418(b), and 9620(j). The RCRA
exemption, Sec. 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 1 year, but additional exemptions may be granted for
periods not to exceed 1 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.
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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 6 months in response to ``emergencies,''
which, by definition, include responses to terrorist activities and
military mobilizations. This exemption is renewable every 6 months
through a written determination by DOD.\10\
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\9\42 U.S.C. Sec. 7418(b).
\10\40 C.F.R. 93.153(d)(2), 93.153(e); 40 C.F.R. 152.
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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\
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\11\42 U.S.C. Sec. 6961(b)(2).
\12\10 U.S.C. Sec. 2014(a) and (d).
\13\10 U.S.C. Sec. 2014(c).
\14\10 U.S.C. Sec. 2014(e).
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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 percent in fiscal year 1993
to 93.6 percent in fiscal year 2000.\16\
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\15\503 U.S. 607 (1992).
\16\``The State of Federal Facilities--An Overview of
Environmental Compliance at Federal Facilities fiscal year 1999-2000''
USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-01-004,
September 2001, p. 22.
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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 percent in fiscal year 1993 to a low of
61.5 percent in fiscal year 1998.\17\ DOD's Clean Water Act compliance
rates are slightly worse than the Federal agency totals.\18\
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\17\While Federal facilities' Clean Water Act compliance rates as
a whole rebounded somewhat in fiscal year 1999 and 2000, the overall
trend is still downward.
\18\Id. DOD's Clean Water Act compliance rates for fiscal year
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, fiscal year 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, fiscal year 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 fiscal year 1999 from fiscal year 1998's nadir, they declined again
in fiscal year 2000.
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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. Sec. 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\
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\19\426 U.S. 167 (1976).
\20\Pub.L. 95-95, Sec. 116(a).
\21\Environmental Protection Agency v. California, 426 U.S. 200
(1976).
\22\Pub.L. 95-217, Sec. Sec. 60, 61(a).
\23\U.S. v. Colorado, 990 F.2d 1565 (10th Cir. 1993).
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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:
<bullet> DOD is refusing to pay penalties for violations of state
requirements related to underground petroleum storage tanks.\24\
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\24\See exchange of letters between State of Hawaii Department of
Health and U.S. Army Garrison Hawaii, attached hereto as Exhibit 5.
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<bullet> 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\
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\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. Sec. 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. Sec. 7413(d) and (e). Section 302
of the Clean Air Act, 42 U.S.C. Sec. 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. Sec. 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.''
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<bullet> 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\
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\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.
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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 fiscal year 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 fiscal year 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\
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\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.
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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\
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\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.''
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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\
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\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.
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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.
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\43\See Exhibit 8.
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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.
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\44\See, e.g., Exhibit 2.
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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.
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\45\See 42 U.S.C. Sec. 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. Sec. 6961(a).
\47\Department of Energy v. Ohio, 503 U.S. 607 (1992). See also
the discussion of Hancock v. Train, supra.
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.
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\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. Sec. Sec. 6972 and 6973) and, if located at a
facility subject to RCRA permitting requirements, its corrective action
authorities (see 42 U.S.C. Sec. Sec. 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.
Sec. 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 postpone
promulgation of the provision defining certain munitions as statutory
solid wastes--does not mean that discharged munitions on ranges cannot
be statutory solid wastes. Under the Federal Facility Compliance Act,
if such munitions meet the statutory definition of ``discarded,'' they
are statutory solid wastes. The Department of Justice took this
position in recent litigation concerning the Navy's facilities in
Vieques, Puerto Rico. See Water Keeper Alliance v. U.S. Department of
Defense, 152 F. Supp.2d 163, 176, n. 3 (``Defendants [the United
States] point out that they `do not seek dismissal of any claim that
ordnance debris and unexploded ordnance left to accumulate on the [Live
Impact Area] constitute solid waste.' [citation omitted] Consequently,
the Court will not dismiss this claim.'')
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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\
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\50\40 CFR Sec. 266.201.
\51\We understand that DOD may be offering a similar definition
for codification in Title 10 of the U.S. Code. This proposed definition
would then apply to proposed section 2019.
\52\See Exhibit 8.
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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.
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\53\See Exhibit 7.
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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.
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\54\See Exhibit 8.
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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\
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\55\60 Fed. Reg. 56488 (Nov. 8, 1995).
\56\62 Fed. Reg. 6625 (Feb. 12, 1997).
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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\
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\57\``Military Munitions Rule,'' 62 Fed. Reg. 6622, 6632. See note
48, supra.
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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\
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\58\62 Fed. Reg. 6631.
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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.
---------------------------------------------------------------------------
\59\42 U.S.C. Sec. 9620(a)(4).
\60\42 U.S.C. Sec. 9601(23) and (24).
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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.
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\61\42 U.S.C. Sec. 9607(a)(4)(C).
\62\See 42 U.S.C. Sec. 9601(14).
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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.
______
National Association of Attorneys General
Co-Sponsors: Attorney General Salazar, Attorney General Shurtleff,
Attorney General Gregoire, Attorney General Wasden
spring meeting
March 17-20, 2003
Washington, DC
proposed resolution
supporting the principle that federal facilities be subject to the same
environmental standards as private industry and opposing amendments to
weaken state and epa authority over the department of defense
WHEREAS, our nation has long made the protection of human health
and the environment a priority through enactment of several
environmental laws, including the Resource Conservation and Recovery
Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water
Act, and the Comprehensive Environmental Response, Compensation, and
Liability Act (Superfund); and
WHEREAS, Congress recognized in each of these laws that the States
have a fundamental right to protect their citizens and the environment
within their borders and therefore included in each law a waiver of the
Federal Government's sovereign immunity; and
WHEREAS, the Attorneys General play a primary role in protecting
human health and the environment through their enforcement of State
laws authorized under the Resource Conservation and Recovery Act, the
Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act,
and through representation of their States in cases brought under
Superfund, and
WHEREAS, despite Congress' long-standing adherence to the principle
that Federal agencies should be subject to the same environmental
standards and enforcement as private industry, the States have
experienced significant difficulty in bringing Federal agencies into
compliance with Federal and State environmental laws because Federal
agencies continue to dispute the extent of waivers of immunity in the
environmental laws; and
WHEREAS, Federal agencies have long been recognized as the nation's
largest polluters with thousands of contaminated sites across the
Nation, which will cost hundreds of billions of dollars to remediate;
and
WHEREAS, consideration and adoption of proposed legislation through
regular order, with full and open hearings before the congressional
committees of jurisdiction, is one of the fundamental procedural
safeguards of the legislative process, because it allows an opportunity
for interested parties to present their views, allows for construction
of a record upon which the need for legislation can be judged, and
allows for debate on the merits of any proposed legislative language;
and
WHEREAS, the Department of Defense has proposed legislation
amending RCRA, CERCLA and the Clean Air Act that would provide broad
exemptions from these laws, notwithstanding the lack of any
demonstration that any of these laws has adversely impacted military
readiness, and notwithstanding the existence of waiver mechanisms in
each of these laws; and
WHEREAS, these proposed amendments to RCRA and CERCLA would preempt
State and EPA authority over munitions-related and explosives-related
wastes at a broad range of sites, including Department of Energy
facilities, defense contractor sites, current military bases, and up to
16 million acres of former ranges that may be contaminated with
unexploded ordnance; and
NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF
ATTORNEYS GENERAL:
1. Urges the Congress to consider legislation affecting Federal
agency compliance with environmental requirements only through regular
order, and to solicit and consider the views of affected States in
considering any such legislation;
2. Urges Congress to strengthen and clarify existing waivers of
immunity in Superfund and the Clean Water Act, and in the other
environmental laws, as appropriate, and to reject any proposed
amendments that would impair States' authority to protect the health of
their citizens, such as DOD's proposed amendments to RCRA, CERCLA and
the Clean Air Act;
3. Re-establishes the Federal Facilities Working Group, composed of
representatives of the offices of interested Attorneys General, under
the auspices of the NAAG Environment Committee to serve as a resource
to the Attorneys General/ NAAG regarding Federal agency compliance with
State and Federal environmental laws; to monitor proposed legislation
and regulatory actions in this area; and to assist the Attorneys
General in formulating such responses to such proposed legislation and
regulatory actions as may be timely and appropriate; and
4. Authorizes the Executive Director to transmit this resolution to
Congress, the Administration, and other interested organizations and
individuals; and to monitor and report back on proposed legislation
that might impair State authority over Federal facilities.
______
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__________
Statement of Douglas Benevento, Executive Director, Colorado Department
of Public Health and Environment
Good morning, my name is Doug Benevento and I am the executive
director of the Colorado Department of Public Health and Environment.
In that position I am responsible for the oversight of the State of
Colorado's air, water, solid waste and hazardous waste programs as well
as the bulk of the state's health programs. The majority of the
programs that I am responsible for on the environmental side are
programs that are delegated to the state through the Clean Air Act, the
Clean Water Act, or the Resource Conservation and Recovery Act. Also, I
am a member of the Environmental Council of States and serve on that
body's executive committee. Also, I am also a co-chair of ECOS' DoD
forum, which is designed to open communications with DoD for the
purpose of working through issues like this one. I do want to make
clear though that today I am speaking for the state of Colorado and not
ECOS or the DoD forum.
It is a great honor for me to be testifying before the U.S. Senate.
Prior to moving back to Colorado in June 1999 I had worked for almost
10 years for Senator Allard in a variety of staff positions and it is
truly a great honor to be testifying before a committee he serves on.
Since returning to Colorado to first run the environmental programs
and subsequently to run the entire agency my involvement in Federal
facilities has increased dramatically both from the standpoint of day
to day cleanup and oversight of these facilities to such non-routine
matters such as how to handle sarin nerve gas bomblets manufactured
decades ago at the Rocky Mountain Arsenal and found in a junk pile at
the site.
My experience on both Capitol Hill and in state government has
given me a unique perspective on environmental issues as they impact
the military. Those who have a background developing environmental laws
or those who are environmental regulators tend to automatically react
negatively to any change in the laws that could provide more
flexibility to the military. This conclusion is reinforced for me by
reviewing testimony from a hearing on this issue last year where
colleagues of mine in environmental regulation did a superb job of
pointing out every potential and actual shortfall in a similar proposal
without offering any suggestions for making the proposal viable.
On the other hand the proponents of more flexibility tend to
develop their proposals in isolation and then spring them out at the
last moment, professing surprise that there would be any questions that
would arise. A good example of this was also last year when final
language was proposed and states learned about it at about the time it
was being considered in Congress. Last year we did not feel like our
advice was being seriously sought or considered.
This year is different and I am very grateful that states are being
asked by this committee for their opinions early on. I believe that
based upon the early outreach and the willingness that DoD and
congressional staff have expressed to me with respect to working on
this issue we can craft language that meets the needs of all parties.
Much of the credit for this is due to the outreach that this
committee and other committees are engaging in on this topic. I also
want to thank DoD for spending a lot of time with me over the past week
and walking through the issues they face. My experience is that these
kinds of issues are resolvable so long as the lines of communication
are open. I commend the committee for helping open those lines of
communication.
I am here today to try and offer some suggestions that would be
helpful in resolving some of the issues surrounding the proposed
amendments to certain environmental laws. These amendments are called
the Readiness and Range Preservation Initiative and seek to provide
greater flexibility for the military so that they ensure that their
training is done in a fashion that is timely and not hindered by
unnecessary environmental requirements. I offer my suggestions today in
the spirit of allowing DoD to reach that goal while at the same time
ensuring that offsite impacts are prevented or mitigated.
The suggestions that I offer today are based upon the principle
that no harm to the public would be acceptable to the state of
Colorado, DoD, or this committee. I believe that the suggestions that I
will offer are consistent with this criterion.
Specifically, I would today like to address the proposal of DoD
with respect to the changes they are seeking to CERCLA, RCRA, and the
Clean Air Act. These are the environmental laws that my agency is
either responsible for implementing through a delegation or, in the
case of CERCLA, a law which we partner with EPA on implementing.
With some changes in general I think Colorado would be comfortable
with the goals stated by Armed Services Committee staff and DoD of
ensuring essential training activities can be accomplished and that
public health is protected.
I would like to spend the rest of my time defining what I see as
the issues and then offer suggestions on how those issues can be
resolved in a fashion that ensures military training can be done
without unnecessary delay while also ensuring that public health and
the environment is protected. I don't have statutory language to offer
at this time but would be happy to draft something for the committee if
it would be helpful.
After reading the statutory language and prior testimony on this
issue it appears as if DoD is seeking exemptions from certain portions
of environmental laws including: the Resource Conservation and Recovery
Act (RCRA) and the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) and seeking time extensions from compliance
with portions of the Clean Air Act. My understanding of the intent of
the DoD in seeking these exemptions under RCRA and CERCLA is to allow
for training at specifically identifiable sites. As I understand, DOD
is not seeking to be excused from any cleanup obligations under RCRA or
CERCLA for contamination it causes, nor from any offsite impacts, nor
from obligations under the Safe Drinking Water Act. Finally, DOD is not
seeking a permanent exemption from hazardous waste management
requirements under RCRA at the defined sites. Under the CAA my
understanding of the intent of the DoD is to allow for movement of
planes and other mechanized material between bases without triggering
immediate applicability of portions of the CAA. In short:
1. They are seeking time extensions from portions of the Clean Air
Act.
2. Also, they are seeking exemptions from RCRA on operational
ranges where the military is actively undertaking military training
where, ``explosives, unexploded ordnance, munitions, munitions
fragments, or constituents thereof,'' could be found.
3. Finally, they are seeking a clarification of the definition of
what is a release under CERCLA.
I would like to comment on the proposed changes to RCRA, CERCLA,
and the CAA and to offer some suggestions that from my perspective
would make all three proposals more workable.
First, I would like to address RCRA. I want to state at the outset
that I don't know of any state that issues RCRA permits or attempts to
regulate normal training activities of the military. Colorado has
worked well with DoD on training activities on their sites in our
state. I think the proposed legislation attempts to codify a generally
good relationship with Colorado and other states on these issues.
I have had several conversations with DoD and Armed Services
Committee staff on this topic and I think that I understand what they
are attempting to accomplish and I think their goals in RCRA should be
supportable by states. What DoD is seeking are protections for their
training activities on a range. They are not, according to my
conversations with them, seeking to exempt themselves from any impact
caused by training off of a range.
For example, in conversations with DoD they were clear that under
RCRA they are not seeking a change to permitting of open burning or
open detonation (OB/OD) when used as a disposal activity. Colorado
currently permits such activities and will continue to permit such
activities even under their proposed concept. However, under this law
an OB/OD activity that is a necessary part of training would be exempt.
That is legitimate and currently the practice in Colorado and other
states.
At the outset I want to state that like most environmental laws
RCRA is relatively old and almost every word in the statute has a
meaning applied to it either through adjudication, regulation, or
common understanding. The current proposal before you seeks to change
definitions in RCRA to exempt out certain training activities on
certain DoD sites.
The first issue that I would raise is that the language as drafted
allows for exemptions at operational ranges. I can't find a definition
of an operational range in current law or regulation and therefore
don't know to what ranges this section would apply. There is no
limitation on what is an operational range and that obviously causes
some concern.
Second, it is also unclear from the drafting whether the activities
exempted must be on an operational range or whether certain activities
can occur anywhere and still be exempted. My understanding from talking
with DoD is that they are seeking exemptions from RCRA at operational
ranges for legitimate DoD training activities. If that is correct this
language is too broad and should be narrowed to accomplish the end they
are seeking--assurances that sites they operate on would not be subject
to RCRA permitting that could interfere with their training.
Third, groundwater and surface water protection are also of concern
in this regard. Depending upon the soil type and how near the
groundwater is to the surface there is the possibility that groundwater
could be contaminated by constituents of spent or live ordnance.
Offsite impacts could be created from these activities and these should
be addressed. It is my understanding that DOD's proposal would not
affect their obligations under the Safe Drinking Water Act. It would be
helpful if the legislation stated this explicitly.
Therefore, I would like to suggest the following changes to the
language that has been provided to the committee. First, don't change
current definitions or any current law; instead create an exemption
under a new section of RCRA. Second, limit the exemption to active
ranges and inactive ranges and the munitions on those ranges. My
understanding after talking with DoD is that they are seeking
protection on active ranges and that they are seeking to preserve their
ability to use inactive ranges in the future. I would avoid creating
new terms, such as ``operational range'' because it isn't clear what
that means. Instead, what I would recommend is that you create an
exemption based off current definitions. Third, the exemption for
inactive ranges may be controversial. However, the way it was explained
to me by DoD was that these are ranges that are potentially useful in
the future. The military does not want to give up their potential use
because training sites are becoming difficult to find. Therefore, an
exemption in both these areas makes sense. However, from a state
perspective it would be helpful if every few years the military was
forced to go through a review process of these inactive ranges and,
after seeking public input, determine whether they should remain
inactive, go to active status, or move to clean up status. Fourth,
limit the exemption with tight language so that we all understand what
we are exempting and what we are not exempting. Fifth, I would
recommend that some kind of additional ground and or surface water
monitoring be required if conditions dictate that to be appropriate. If
the monitors did catch contamination then appropriate actions to
prevent an environmental or public health concern could be required by
states. Sixth, state clearly that in no way does this section impact
cleanup responsibilities of DoD once the site no longer meets the
definition of an active range. Seventh, mandate that DoD maintain good
records of activities that take place on the range so that we know what
was used on the site and what will be necessary for cleanup, without an
expensive remedial investigation. Finally, it should be made clear that
the exemptions are available only to DoD and not to contractors or
other private parties.
What this gets you is a solution to the expressed concern that RCRA
could impact military training. What it does not do is expose the
public to contaminants from ordnance. In this regard, I would also
suggest the committee strike the part of proposed
Sec. 2019(a)(1)(A)(i)(III) that allows material that goes offsite to be
addressed under CERCLA before States can take action under their
authorities to protect public health and the environment. There is no
military readiness rationale for DoD to be given this priority for off-
range material, and States need to be able exercise their authority to
protect the public. We have examples in Colorado from sites like the
Rocky Mountain Arsenal where we have found it important to have the
ability to exercise State authority over potential offsite impacts.
A better approach may be one that several states have already
worked out with DOD in a collaborative effort called the ``Munitions
Response Committee.'' In this committee we have agreed with DoD to
identify key decision points in the cleanup process for which we will
seek consensus on decisions. If that can't be achieved, there would be
an expeditious dispute resolution process. If agreement still can't be
achieved, each party would rely on their existing CERCLA and RCRA
authorities for action. This approach preserves both DOD's and States'
existing authorities while making every effort to reach agreement.
Further, since there is some agreement on this issue currently, it
should not require a statutory change to RCRA or CERCLA.
Finally, there has been considerable work and thinking over the
last several years on the role of enforceable land use controls onsites
where contamination remains. One example is Colorado's environmental
covenants law. Mechanisms like Colorado's law give communities and
regulatory agencies comfort that contamination is being monitored and
that controls to protect public health and the environmental are
established and enforced. This kind of approach should be considered
for munitions that remain on DOD ranges.
With the above caveats and changes I don't think that this type of
narrow exemption under RCRA should cause a concern for human health or
the environment. This exemption would meet DOD's need to conduct
readiness activities without regulatory hindrance.
The next exemption in the language that I have seen surrounds an
exemption from the term ``release'' as used in CERCLA for the purposes
of triggering action under that law. The exemption from release would
apply to explosives, ordnance, etc on operational ranges but would not
apply to releases offsite of an operational range.
As with RCRA conceptually I would agree that there should be some
middle ground that could be reached on a narrow exemption under the
same criteria I outlined above for RCRA.
Again I would encourage the committee to abandon any rewrite of the
body of CERCLA and instead encourage adding on an exemption to CERCLA.
The change being sought by DoD is really a limitation on Federal
power. Since Superfund is not a delegated law this limitation would
apply to an action by the Federal Government. The only recommendation
we would have is that the exemption should apply, as with RCRA above,
to active and inactive ranges and not operational ranges because as I
noted above there is not yet an established definition of operational
range and therefore what that term would apply to is uncertain. There
is a definition of active and inactive range that should have some
common understanding amongst both the military and environmental
regulators that should provide some certainty as to what is being
exempted.
Finally, I would like to address the proposed changes to the Clean
Air Act.
This portion of the proposal is the most difficult to work with
because it involves offsite releases. As I mentioned earlier in my
testimony the principle that I ran these proposal through was whether
any exemption would allow for an offsite release. Within the borders of
a training area I think that statutory flexibility is appropriate.
However, as Colorado's top public health official I must be concerned
about offsite releases from any activity and then I must try and ensure
that those impacts are minimized.
There are two applicable air quality sections of the proposed
legislation;
The first is conformity. There are two parts to conformity the
first is the concept of general conformity and the second is
transportation conformity.
This legislation would exempt the military from meeting the general
conformity test that no Federal action will cause or contribute to the
violation of the National Ambient Air Quality Standards (NAAQS). Under
the proposal within 3 years after starting a military readiness
activity, DoD would have to come into compliance with the requirements
of the applicable law. The general conformity requirements would apply
to any non-attainment or maintenance area of a state. In Colorado for
example, this would most likely apply to the Colorado Springs area and
the Denver area.
The general conformity provisions would most likely apply in
Colorado to fog oil or fire that that could lead to particulate non-
attainment situations. An area would have to develop a full SIP showing
that all other measures are being taken to meet attainment including
adoption of any mandatory Federal programs prescribed for that type of
non-attainment area.
My concern with this language is first and foremost the offsite
impacts of the activities and the 3-year exemption from addressing
those offsite impacts. However, I am also slightly confused by how this
section would be implemented. The language says that there is a 3-year
exemption but the administrator must approve the plan. I assume that
the administrator and the states would have to show at some point that
within years some control of the emissions from the military readiness
activity had occurred. Second, I would like further information as to
when the 3-year clock would start running. Section 2018(a)(3) states
that, ``within 3 years of the date new activities begin'' the activity
must conform to the requirements of the CAA. I think it would be
important to have a common understanding on when these activities begin
to avoid confusion. For example, if planes are being brought into an
area is that a military readiness activity that trigger this section or
does the activity begin when the new planes start arriving or when they
are all onsite.
Also, I think there may be an important practical problem with this
approach. My responsibility is to protect public health and environment
in Colorado. Therefore, if for example the Denver Metro Area were to
fall into non-compliance with the NAAQS my goal would be to put
controls in place as quickly as possible to protect air quality in the
area. Therefore, if there were a 3-year restriction on controls at any
military readiness activity we deemed was contributing to the problem
my response would be to make my restrictions on other sources more
stringent to make up for what the military was not contributing. As a
practical matter what I would want to do in this situation is put
control in place to ensure an area's air quality was safe. Because I
would have to wait 3-years for certain exempted activities it would
make sense for me to merely shift whatever burden turned out to be to
other sources. This you can imagine would not be welcomed by those
sources that felt they were being disproportionately controlled.
I don't want to appear to be hypercritical of this proposal but I
think it is important that it be fully understood prior to
implementation so that states and EPA know fully what to expect. Also,
it is important that DoD understand the potential impact from this
change.
My initial suggestion to fix this problem would be to exempt
military readiness activities altogether instead of for merely 3 years.
However, you should still require that the emissions budgets be
developed as envisioned by this proposal and then require offsets on
other non-military readiness activities in the impacted area from DoD
sources. For example, requiring stricter controls at any power plants
on military bases or require stricter controls for non-exempt vehicle
fleets. If this would not offset the emissions increase then they would
be required to purchase emissions credits from other sources in the
area.
This would meet the intent of DoD. However, this approach also has
its own shortcomings that I want to be certain to point out. First, it
could require the expenditure of significant amounts of money depending
upon the offsets. Second, the offsets may not be available in a given
area or may not be sufficient. Third, purchasing credits is a good
market based approach but in many areas there is not a well-developed
credit-trading program or credits may not be available in a given area.
Another alternative would be to direct EPA to expand their natural
events policy to include military activities. As you may know EPA has a
policy that allows states to avoid non-attainment due to natural
events. This policy has been used by Colorado to avoid PM<INF>10</INF>
non-attainment in certain areas of the state that experience
significant windborne dust and that result in attainment problems. The
purpose of the policy is to first recognize that there are certain
uncontrollable events that can cause non-attainment that should not
lead to non-attainment designation. However, this policy does have
certain mitigation and notification requirements that could be
burdensome. Further, the policy would likely have to be adjusted so
that it would meet the needs of the military better.
The downside to this proposal of course would be that offsite
impacts from training would still occur and may raise the concern of
the community.
I would be willing to continue to explore solutions to the issued
brought up by DoD but at this point I would encourage the committee to
proceed cautiously with this portion of the proposal.
I understand that one of the motivations behind DOD's present
proposal is concern about citizen suits potentially impacting its
military readiness activities. Consistent with my overall comments, if
this is a concern that Congress wishes to address, I suggest an
exemption from citizen suits for readiness activities on active ranges
rather than the definitional changes to the environmental laws
proposed.
Finally, as you are well aware, the question of sovereign immunity
for DOD's waste management and cleanup obligations has been dealt with
several times over the years by Congress. This has been necessary due
to the narrow interpretation given such waivers by the Courts. In the
interest of preserving the current state of the law and just narrowly
addressing DOD's concern, the committee may wish to affirm that any
exemption granted not enlarge the universe of current sovereign
immunity.
Thank you for your time and for asking me to testify. I would like
to finish by re-emphasizing my belief that most of the issues brought
up by DoD are resolvable with appropriate statutory changes. However,
the one difficult area I would encourage some caution is with changes
to the CAA.
__________
Statement of Jamie Rappaport Clark, Senior Vice President for
Conservation Programs, National Wildlife Federation
Good morning, Chairman Inhofe, Senator Jeffords and Members of the
committee. My name is Jamie Rappaport Clark, Senior Vice President for
Conservation Programs at the National Wildlife Federation, the nation's
largest conservation education and advocacy organization. I am here to
testify on behalf of National Wildlife Federation, as well as Defenders
of Wildlife, the Endangered Species Coalition, Fund for Animals, Humane
Society of the United States, Military Toxics Project, Public Employees
for Environmental Responsibility, Public Interest Research Group,
Natural Resources Defense Council, and World Wildlife Fund. I thank the
committee for this opportunity to testify on the Administration's
Readiness and Range Preservation Initiative.
Prior to arriving at the National Wildlife Federation in 2001, I
served for 13 years at the U.S. Fish and Wildlife Service, with the
last 4 years as the Director of the agency. Prior to that, I served as
Fish and Wildlife Administrator for the Department of the Army, Natural
and Cultural Resources Program Manager for the National Guard Bureau,
and Research Biologist for U.S. Army Medical Research Institute. I am
the daughter of a U.S. Army Colonel, and lived on or near military
bases throughout my entire childhood.
Based on this experience, I am very familiar with the Defense
Department's long history of leadership in wildlife conservation. On
many occasions during my tenures at FWS and the Defense Department, DOD
rolled up its sleeves and worked with wildlife agency experts to find a
way to comply with environmental laws and conserve imperiled wildlife
while achieving military preparedness objectives.
The Administration now proposes in its Readiness and Range
Preservation Initiative that Congress scale back DOD's responsibilities
to conserve wildlife and to protect people from the hazardous pollution
that DOD generates. This proposal is both unjustified and dangerous. It
is unjustified because DOD's longstanding approach of working through
compliance issues on an installation-by-installation basis works. As
DOD itself has acknowledged, our armed forces are as prepared today as
they ever have been in their history, and this has been achieved
without broad exemptions from environmental laws.
The DOD proposal is dangerous because, if Congress were to broadly
exempt DOD from its environmental protection responsibilities, both
people and wildlife would be threatened with serious, irreversible and
unnecessary harm. Moreover, other Federal agencies and industry sectors
with important missions, using the same logic as used here by DOD,
would line up for their own exemptions from environmental laws.
My expertise is in the Endangered Species Act (ESA), so I would
like to focus my testimony on why exempting the Defense Department from
key provisions of the ESA would be a serious mistake. I will rely on my
fellow witnesses to explain why the proposed exemptions from other
environmental and public health and safety laws is similarly unwise.
Concerns with the ESA Exemption
The Defense Department's proposed ESA exemption suffers from three
basic flaws: it would severely weaken this nation's efforts to conserve
imperiled species and the ecosystems on which all of us depend; it is
unnecessary for maintaining military readiness; and it ignores the
Defense Department's own record of success in balancing readiness and
conservation objectives under existing law.
1. Section 2017 Removes a Key Species Conservation Tool
Section 2017 of the Administration's Readiness and Range
Preservation Initiative would preclude designations of critical habitat
on any lands owned or controlled by DOD if DOD has prepared an
Integrated Natural Resources Management Plan (INRMP) pursuant to the
Sikes Act and has provided ``special management consideration or
protection'' of listed species pursuant to Section 3(5)(A) of the ESA.
This proposal would effectively eliminate critical habitat
designations on DOD lands, thereby removing an essential tool for
protecting and recovering species listed under the ESA. Of the various
ESA protections, the critical habitat provision is the only one that
specifically calls for protection of habitat needed for recovery of
listed species. It is a fundamental tenet of biology that habitat must
be protected if we ever hope to achieve the recovery of imperiled fish,
wildlife and plant species.
Section 2017 would replace this crucial habitat protection with
management plans developed pursuant to the Sikes Act. The Sikes Act
does not require the protection of listed species or their habitats; it
simply directs DOD to prepare INRMPs that protect wildlife ``to the
extent appropriate.'' Moreover, the Sikes Act provides no guaranteed
funding for INRMPs and the annual appropriations process is highly
uncertain. Even the best-laid management plans can go awry when the
anticipated funding fails to come through. Yet, under Section 2017,
even poorly designed INRMPs that allow destruction of essential habitat
and put fish, wildlife or plant species at serious risk of extinction
would be substituted for critical habitat protections.
Section 2017 contains one minor limitation on the substitution of
INRMPs for critical habitat designations: such a substitution is
allowed only where the INRMP provides ``special management
consideration or protection'' within the meaning of Section 3(5)(A) of
the ESA. Unfortunately, this limitation does nothing to ensure that
INRMPs truly conserve listed species.
The term ``special management consideration or protection'' was
never intended to provide a biological threshold that land managers
must achieve in order to satisfy the ESA. The term is found in Section
3(5) of the ESA, which sets forth a two-part definition of critical
habitat. Section 3(5)(A) states that critical habitat includes areas
occupied by a listed species that are ``essential for the conservation
of the species'' and ``which may require special management
consideration or protection.'' Section 3(5)(B) states that critical
habitat also includes areas not currently occupied by a listed species
that are simply ``essential for the conservation of the species.''
As this language makes clear, an ESA Sec. 3(5) finding by the U.S.
Fish and Wildlife Service or National Marine Fisheries Service
(Services) that a parcel of land ``may require special management
consideration or protection'' is not the same as finding that it is
already receiving adequate protection. Such a finding simply highlights
the importance of a parcel of land to a species, and it should lead to
designation of that land as critical habitat. See Center for Biological
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003) (rejecting,
as contrary to plain meaning of ESA, defendant's interpretation of
``special management consideration or protection'' as providing a basis
for substituting a U.S. Forest Service management plan for critical
habitat protection). By allowing DOD to substitute INRMPs for critical
habitat designations whenever it unilaterally makes a finding of
``special management consideration or protection,'' Section 2017
significantly weakens the ESA.
Section 2017 is also problematic because it would eliminate many of
the ESA Section 7 consultations that have stimulated DOD to ``look
before it leaps'' into a potentially harmful training exercise. As a
result of Section 7 consultations, DOD and the Services have routinely
developed what is known as ``work-arounds,'' strategies for avoiding or
minimizing harm to listed species and their habitats while still
providing a rigorous training regimen.
Section 2017 purports to retain Section 7 consultations. However,
the duty to consult only arises when a proposed Federal action would
potentially jeopardize a listed species or adversely modify or destroy
its critical habitat. By removing critical habitat designations on
lands owned or controlled by DOD, Section 2017 would eliminate one of
the two possible justifications for initiating a consultation, reducing
the likelihood that consultations will take place. This would mean that
DOD and the Services would pay less attention to species concerns and
would be less effective in conserving imperiled species and maintaining
the sustainability of the land.
The reductions in species protection proposed by DOD would have
major implications for our nation's rich natural heritage. DOD manages
approximately 25 million acres of land on more than 425 major military
installations. These lands are home to at least 300 federally listed
species. Without the refuge provided by these bases, many of these
species would slide rapidly toward extinction. These installations have
played a crucial role in species conservation and must continue to do
so.
2. The ESA Exemption is Not Necessary to Maintain Military Readiness
The ESA already has the flexibility needed for the Defense
Department to balance military readiness and species conservation
objectives. Three key provisions provide this flexibility. First, under
the consultation provision of Section 7(a)(2) of the Act, DOD is
provided with the opportunity to develop solutions in tandem with the
Services to avoid unnecessary harm to listed species from military
activities. Typically, the Services conclude, after informal
consultation, that the proposed action will not adversely affect a
listed species or its designated critical habitat or, after formal
consultation, that it will not likely jeopardize a listed species or
destroy or adversely modify its critical habitat. See, e.g., U.S. Army
Environmental Center, Installation Summaries from the fiscal year 2001
Survey of Threatened and Endangered Species on Army Lands (August 2002)
at 9 (noting successful conclusion of 282 informal consultations and 36
formal consultations, with no ``jeopardy'' biological opinions). In
both informal and formal consultations, the Services either will
recommend that the action go forward without changes, or it will work
with DOD to design ``work arounds'' for avoiding and minimizing harm to
the species and its habitat. In either case, DOD accomplishes its
readiness objectives while achieving ESA compliance.
Second, under Section 4(b)(2) of the ESA, the Services are
authorized to exclude any area from critical habitat designation if
they determine that the benefits of exclusion outweigh the benefits of
specifying the area. (An exception is made for when the Services find
that failure to designate an area as critical habitat will result in
the extinction of a species a finding that the Services have never
made.) In making this decision, the Services must consider ``the
economic impact, and any other relevant impact'' of the critical
habitat designation. DOD has recently availed itself of this provision
to convince the U.S. Fish and Wildlife Service to exclude virtually all
of the habitat at Camp Pendleton habitat deemed critical to five listed
species in proposed rulemakings--from final critical habitat
designations. Thus, for situations where the Section 7(a)(2)
consultation procedures place undue burdens on readiness activities,
DOD already has a tool for working with the Services on excluding land
from critical habitat designation. Attached to my testimony is a
factsheet that shows how the Services have worked cooperatively with
DOD on these exclusions, and another factsheet showing the importance
of maintaining the Services' role in evaluating proposed exclusions.
Third, under Section 7(j) of the ESA an exemption ``shall'' be
granted for an activity if the Secretary of Defense finds the exemption
is necessary for reasons of national security. To this date, DOD has
never sought an exemption under Section 7(j)--highlighting the fact
that other provisions of the ESA have provided DOD with all the
flexibility it needs to reconcile training needs with species
conservation objectives.
Where there are site-specific conflicts between training needs and
species conservation needs, the ESA provides these three mechanisms for
resolving them in a manner that allows DOD to achieve its readiness
objectives. Granting DOD a nationwide ESA exemption, which would apply
in many places where no irreconcilable conflicts between training needs
and conservation needs have arisen, would be harmful to imperiled
species and totally unnecessary to achieve readiness objectives.
a. DOD Has Misstated the Law Regarding Its Ability to Continue with a
Cooperative, Case-by-Case Approach to Critical Habitat
Designations
DOD has stated that the ESA exemption is necessary because a recent
court ruling in Arizona would prevent DOD from taking the cooperative,
case-by-case approach to critical habitat designations that was
developed when I served as Director of the Fish and Wildlife Service.
This description of the court ruling is inaccurate the ruling clearly
allows DOD to continue the cooperative, case-by-case approach if it
wishes.
The court ruling at issue is entitled Center for Biological
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003). In this
case, FWS excluded San Carlos Apache tribal lands from a critical
habitat designation pursuant to ESA Sec. 4(b)(2) because the tribal
land management plan was adequate and the benefits of exclusion
outweighed the benefits of inclusion. The Federal district court upheld
the exclusion as within FWS's broad authority under ESA Sec. 4(b)(2).
At the same time, the court held that lands could not legitimately be
excluded from a critical habitat designation on the basis of the
``special management'' language in ESA Sec. 3(5).
Under the court's reasoning, FWS continues to have the broad
flexibility to exclude DOD lands from a critical habitat designation on
the basis of a satisfactory INRMP and the benefits to military training
that the exclusion would provide. The ruling simply clarifies that such
exclusions must be carried out pursuant to ESA Sec. 4(b)(2) rather than
ESA Sec. 3(5). Thus, DOD's assertion that the Center for Biological
Diversity ruling prevents it from working with FWS to secure exclusions
of DOD lands from critical habitat designations is inaccurate.
b. DOD's Anecdotes Do Not Demonstrate That the ESA Has Reduced
Readiness
The DOD has offered a series of misleading anecdotes describing
difficulties it has encountered in balancing military readiness and
conservation objectives. Before Congress moves forward with any
exemption legislation, the appropriate congressional committees should
get a more complete picture of what is really happening at DOD
installations.
Some of DOD's anecdotes are simply unpersuasive on their face, such
as DOD's repeated assertion that environmental laws have prevented the
armed services from learning how to dig foxholes and that troops abroad
have been put at greater risk as a result. There is simply no evidence
that environmental laws have ever prevented foxhole digging. Moreover,
given its vast and varied landholdings and the many management options
available, the Defense Department certainly can find places on which
troops can learn to dig foxholes without encountering endangered
species or other environmental issues.
Other anecdotes have simply disregarded the truth. For example, DOD
and its allies have repeatedly argued that more than 50 percent of Camp
Pendleton may not be available for training due to critical habitat
designations. In fact, only five species have been proposed for
critical habitat designations at Camp Pendleton. In each of these five
instances, DOD raised concerns about impacts to military readiness, and
in each instance, FWS worked closely with DOD to craft a solution. FWS
ultimately excluded virtually all of the habitats for the five listed
species on Camp Pendleton from critical habitat designations even
though FWS had earlier found that these habitats were essential to the
conservation of the species. As a result of FWS's exclusion decisions,
less than 1 percent of the training land at Camp Pendleton, and less
than 4 percent of all of Camp Pendleton, is designated critical
habitat. (Most of the critical habitat designated at Camp Pendleton is
non-training land leased to San Onofre State Park, agricultural
operations, and others. DOD's repeated suggestion that more than 50
percent of Camp Pendleton is at risk of being rendered off-limits to
training due to critical habitat is simply inaccurate.
DOD also has argued that training opportunities and expansion plans
at Fort Irwin have been thwarted by the desert tortoise. Yet just 2
weeks ago this official line was contradicted by the reality on the
ground. In an article dated March 21, 2003, Fort Irwin spokesman Army
Maj. Michael Lawhorn told the Barstow Desert Dispatch that he is
unaware of any environmental regulations that interfere with troops'
ability to train there. He also said there isn't any environmental law
that hinders the expansion.
Attached to my testimony is a factsheet outlining a series of
additional misleading anecdotes used by DOD and the additional facts
that must be considered before drawing any conclusions about the impact
of the ESA on military readiness.
These examples of misleading anecdotes highlight the need for
Congress to look behind the reasons that are being put forward by DOD
as the basis for weakening environmental laws. DOD uses the anecdotes
in an attempt to demonstrate that conflicts between military readiness
and species conservation objectives are irreconcilable. However,
solutions to these conflicts are within reach if DOD is willing to
invest sufficient time and energy into finding them. DOD has vast acres
of land on which to train and vast stores of creativity and expertise
among its land managers. With careful inventorying and planning, DOD
can find a proper balance.
Has DOD made the necessary effort to inventory and plan for its
training needs? In June 2002, the General Accounting Office issued a
report entitled ``Military Training: DOD Lacks a Comprehensive Plan to
Manage Encroachment on Training Ranges,'' suggesting that the answer is
no. The GAO found:
<bullet> DOD has not fully defined its training range requirements
and lacks information on training resources available to the Services
to meet those requirements, and that problems at individual
installations may therefore be overstated.
<bullet> The Armed Services have never assessed the overall
impacts of encroachment on training.
<bullet> DOD's readiness reports show high levels of training
readiness for most units. In those few instances of when units reported
lower training readiness, DOD officials rarely cited lack of adequate
training ranges, areas or airspace as the cause.
<bullet> DOD officials themselves admit that population growth
around military installations is responsible for past and present
encroachment problems.
<bullet> The Armed Services' own readiness data do not show that
environmental laws have significantly affected training readiness.
Ten months after the issuance of the GAO report, DOD still has not
produced evidence that environmental laws are at fault for any of the
minor gaps in readiness that may exist. EPA Administrator Whitman
confirmed this much at a recent hearing. At a February 26, 2003, Senate
Environment and Public Works Committee hearing on EPA's budget, EPA
Administrator Whitman stated that she was ``not aware of any particular
area where environmental protection regulations are preventing the
desired training.''
To this date, DOD has not provided Congress with the most basic
facts about the impacts of ESA critical habitat requirements on its
readiness activities. Out of DOD's 25 million acres of training land,
how many acres are designated critical habitat? At which installations?
Which species? In what ways have the critical habitat designations
limited readiness activities? What efforts did DOD make to alert FWS to
these problems and to negotiate resolutions? Without answers to these
most basic questions, Congress cannot fairly conclude that the ESA is
at fault for any readiness gaps or that a sweeping ESA exemption is
warranted.
3. DOD has Worked Successfully with the Services to Balance Readiness
and Species Conservation Objectives
The third reason why enacting DOD's proposed ESA changes would be a
mistake is because the current approach developing solutions at the
local level, rather than relying on broad, national exemptions--has
worked. My experience at both FWS and DOD has shown me that solutions
developed at the local level are sometimes difficult to arrive at, but
they are almost always more intelligent and long-lasting than one-size-
fits-all solutions developed at the national level.
Allow me to provide a few brief examples. At the Marine Corps Base
at Camp Lejeune in North Carolina, every colony tree of the endangered
red-cockaded woodpecker is marked on a map, and Marines are trained to
operate their vehicles as if those mapped locations are land mines.
Here is the lesson that Major General David M. Mize, the Commanding
General at Camp Lejeune, has drawn from this experience:
``Returning to the old myth that military training and conservation
are mutually exclusive; this notion has been repeatedly and
demonstrably debunked. In the overwhelming majority of cases, with a
good plan along with common sense and flexibility, military training
and the conservation and recovery of endangered species can very
successfully coexist.''
``Military installations in the southeast are contributing to red-
cockaded woodpecker recovery while sustaining our primary mission of
national military readiness.''
``I can say with confidence that the efforts of our natural
resource managers and the training community have produced an
environment in which endangered species management and military
training are no longer considered mutually exclusive, but are
compatible.''
These sentiments, which I share, were relayed by Major General Mize
just 8 weeks ago at a National Defense University symposium sponsored
by the U.S. Army Forces Command (FORSCOM) and others. At that
symposium, representatives of Camp Lejeune Marine Corps Base, Eglin Air
Force Base, Fort Bragg Army Base, Fort Stewart Army Base, Camp Blanding
Training Center in Florida, the U.S. Army Environmental Center, and
other Defense facilities--some of the most heavily utilized training
bases in the country--heralded the success that Defense Department
installations have had in furthering endangered species conservation
while maintaining military readiness.
On the Mokapu Peninsula of Marine Corps Base Hawaii, the growth of
non-native plants, which can decrease the reproductive success of
endangered waterbirds, is controlled through annual ``mud-ops''
maneuvers by Marine Corps Assault Vehicles. Just before the onset of
nesting season, these 26 ton vehicles are deployed in plow-like
maneuvers that break the thick mats of invasive plants, improving
nesting and feeding opportunities while also giving drivers valuable
practice in unusual terrain.
Attached to my testimony is a factsheet with additional examples of
successful efforts by DOD installations across the country to balance
military readiness and species conservation.
These success stories highlight a major trend that I believe has
been missed by those promoting the DOD exemptions. In recent years, DOD
has increasingly recognized the importance of sustainability because it
meets several importance objectives at once. Sustainable use of the
land helps DOD achieve not only compliance with environmental laws, but
also long-term military readiness and cost-effectiveness goals. For
example, by operating tanks so that they avoid the threatened desert
tortoise, DOD prevents erosion, a problem that is extremely difficult
and costly to remedy. If DOD abandons its commitment to environmental
compliance, it will incur greater long-term costs for environmental
remediation and will sacrifice land health and military readiness.
A November 2002 policy guidance issued by the then-Secretary of the
Navy to the Chief of Naval Operations and the Commandant of the Marine
Corps suggests that certain members of DOD's leadership are indeed
willing to abandon the sustainability goal. The policy guidance on its
face seems fairly innocuous it purports to centralize at the Pentagon
all decisionmaking on proposed critical habitat designations and other
ESA actions. However, the Navy Secretary's cover memo makes clear that
its purpose is also to discourage any negotiation of solutions to
species conservation challenges by Marines or Navy personnel in the
field, lest these locally developed ``win-win'' solutions undercut
DOD's arguments on Capitol Hill that the ESA is broken. According to
paragraph 2 of the cover memo, ``concessions . . . could run counter to
the legislative relief that we are continuing to pursue with
Congress.''
Similar sentiments were voiced by Deputy Defense Secretary Paul
Wolfowitz in his March 7, 2003, memo to the chiefs of the Army, Navy
and Air Force. Deputy Secretary Wolfowitz argued that ``it is time for
us to give greater consideration to requesting exemptions'' from
environmental laws and pleaded for specific examples of instances in
which environmental regulations hamper training. The implicit message
is that efforts at the installation level to resolve conflicts between
conservation and training objectives should be suspended, and that such
conflicts instead should be reported to the Pentagon, where
environmental protections will simply be overridden.
These messages to military personnel in the field mark a very
unfortunate abdication of DOD's leadership in wildlife conservation. To
maintain its leadership role as steward of this nation's endangered
wildlife, DOD must encourage its personnel to continue developing
innovative solutions and not thwart those efforts.
Conclusion
With the Iraq war ongoing and terrorism threats always present, no
one can dismiss the importance of military readiness. However, there is
no justification for the Defense Department to retreat from its
environmental stewardship commitments at home. As base commanders have
been telling us, protecting endangered species and other important
natural resources is compatible with maintaining military readiness.
Surveys show that the American people today want environmental
protection from the Federal Government, including the Defense
Department, as much as ever. According to an April 2002 Zogby Poll, 85
percent of registered voters believe that the Defense Department should
be required to follow America's environmental and public health laws
and not be exempt. Americans believe that no one, including the Defense
Department, should be above the law.
Congress should reject the proposed environmental exemptions in the
Administration's defense authorization package. This proposal, along
with the parallel proposal in the Administration's fiscal year 2004
budget request that Congress cut spending on DOD's environmental
programs by $400 million, are a step in the wrong direction.
DOD has a long and impressive record of balancing readiness
activities with wildlife conservation. The high quality of wildlife
habitats at many DOD installations provides tangible evidence of DOD's
positive contribution to the nation's conservation goals. At a time
when environmental challenges are growing, DOD should be challenged to
move forward with this successful model and not to sacrifice any of the
progress that has been made.
______
Attachment
DOD Has a Long History of Working Successfully with the ESA
The Department of Defense (DOD) is again pursuing exemptions from
key environmental laws. A legislative package with these exemptions has
been sent to Congress, which will soon be casting crucial votes. If
this legislation is approved it will greatly reduce DOD's obligations
under the Endangered Species Act (ESA), Marine Mammal Protection Act,
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
Last year, the Administration requested exemptions from six
environmental statutes, and Congress settled on an exemption from the
Migratory Bird Treaty Act.
DOD and ESA Success Stories
DOD has argued, and intends to do so again, that the ESA is too
inflexible and that a sweeping new exemption is needed. However, this
argument is not based on having encountered insurmountable hurdles
complying with the ESA. In fact, the General Accounting Office has
concluded, based on a review of DOD's own readiness reports, that the
military is at a high state of readiness and that DOD has never
demonstrated that the ESA has significantly impeded training.
Nonetheless, without any public debate, DOD sought to bypass the
ESA's careful balancing between military training needs and
conservation of imperiled wildlife. The facts show that this would be
an unfortunate and unnecessary departure from DOD's long history of
working successfully with the ESA.
Marine Corps Air Station Miramar, California
In an effort to protect the station's ten endangered species, the
U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65
percent of Miramar's land area as critical habitat. FWS later exercised
its discretion under existing law and withdrew this proposed
designation after the Marine Corps established a framework to protect
and preserve the station's endangered species, guaranteed the plan
would be implemented, and defined measures to judge the plan's
effectiveness. According to DOD, in so doing, ``the plan made military
readiness activities and endangered species protection mutually
compatible.''
Mokapu Peninsula of Marine Corps Base Hawaii
Among the 50 species of birds that call this island home are all
four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian
coot, Hawaiian gallinule, and the Hawaiian duck. Management activities
at the base have more than doubled the number of stilts on the base
over the past 20 years. The growth of non-native plants, which can
decrease the waterbirds' reproductive success, is controlled through
annual ``mud-ops'' maneuvers by Marine Corps Assault Vehicles (AAVs).
Just before the onset of nesting season, these 26 ton vehicles are
deliberately deployed in supervised plow-like maneuvers that break the
thick mats of invasive plants, improving nesting and feeding
opportunities while also giving drivers valuable practice in unusual
terrain.
Air Force in Alaska
In 1995 FWS found that the Air Force's low-level, high speed
training flights in Alaska had the potential to disturb the three North
American subspecies of endangered peregrine falcons. After the Air
Force consulted with FWS under the ESA, the Air Force agreed to
protective ``no-fly'' zones around dense peregrine nesting locations.
The peregrine falcon has since recovered to the point that it has been
removed from the ESA's list of threatened and endangered species, and
FWS has declared that ``the knowledge gained by Air Force research
projects was important in the recovery process.''
Marine Corps Base Camp Lejeune, North Carolina
Initially 10 percent of this base was restricted in order to
protect the red-cockaded woodpecker, but now only 1 percent of the base
is restricted for that purpose, as the number of breeding pairs of the
bird have doubled in the past 10 years. The Marines attribute the
success of its conservation efforts to its partnership with FWS, the
State of North Carolina, academic experts, and environmental advocacy
groups.
Fort Bragg, North Carolina
Fort Bragg contains important habitat for the red-cockaded
woodpecker, enabling the base to proudly claim that ``this single
species has survived because of the havens provided by our
installations' training land and ranges.'' Working with the Nature
Conservancy and others, DOD has created buffers around its
installations and training areas, lessening restrictions on training
while enabling the endangered red-cockaded woodpecker to move closer to
recovery.
DOD has successfully worked with the ESA to achieve its military
readiness objectives while conserving imperiled species. Please ask
your lawmakers to oppose any proposals that exempt DOD from the ESA and
other environmental laws!
For more information, contact Corry Westbrook, Legislative
Representative, National Wildlife Federation, at 202-797-6840,
westbrooknwf.org.
______
FWS Has Repeatedly Granted DOD's Requests That Its Lands Be Excluded
From ESA Critical Habitat Designations
In pushing for exemptions from Endangered Species Act (ESA)
critical habitat protections, the Department of Defense (DOD) has
argued that the ESA lacks sufficient flexibility to exclude DOD lands
from critical habitat designations where appropriate. However, as shown
below, where the U.S. Fish and Wildlife Service (FWS) has found that
DOD's lands are needed for training and listed species are being
adequately conserved, it has repeatedly acceded to DOD's requests that
those be excluded from critical habitat designations. See also NWF
Factsheet: FWS's Case-by-Case Review of INRMPs is Essential for
Conserving Imperiled Wildlife. DOD's effort to replace this flexible,
case-by-case review with a sweeping ESA exemption is completely
unwarranted.
The following FWS statements from the Federal Register show that,
time and again, FWS has used the flexibility of the existing ESA to
exclude large swaths of valuable habitat on DOD lands from critical
habitat designations:
1. Lompoc yerba santa and Gaviota tarplant (plants) at Vandenberg Air
Force Base, 67 FR 67968-01 (November 7, 2002):
``Although measures to provide for the conservation of Eriodictyon
apitatum or Deinandra increscens ssp. villosa are not currently
included in the draft INRMP, the Air,> Force has committed to
incorporate into their INRMP, and implement, specific measures that
will address the conservation of these species and their habitat where
they occur on Vandenberg. Based on this commitment, we have, therefore,
determined that lands on Vandenberg Air Force Base should be excluded
under subsection 4(b)(2) of the Act because the benefits of exclusion
outweigh the benefits inclusion and will not cause the extinction of
the species. For this reason, we are excluding from the designated
critical habitat those proposed units and portions of proposed units
that were located on Vandenberg.''
2. I Chlorogalum purpureum (a plant) at Camp Roberts and Ft. Hunter
Liggett, 67 FR 65414-01 (October 24, 2002):
``We have revised the proposal to eliminate lands at Camp Roberts
under section 3(5)(A), and lands at Ft. Hunter Liggett under section
4(b)(2). It is our policy that if any areas containing the primary
constituent elements are currently being managed to address the
conservation needs of Chlorogalum purpureum management or protection,
these areas would not meet the definition of critical habitat in
section 3(5)(A)(i) of the Act and would not be included in this final
rule. We have determined that this is the case at Camp Roberts due to
their having an approved Integrated Natural Resources Management Plan
which addresses the conservation needs of Chlorogalum purpureum.
We have also determined that the direct and indirect costs to the
Army, including reduction in military readiness, from designation of
critical habitat at Ft. Hunter Liggett are such that the benefits of
excluding those lands exceed the benefits of their inclusion.
3. Monterey Spineflower at Naval Postgraduate School, 67 FR 37498-01
(May 29, 2002)
``In their comments on the proposed rule, the DON requested that
the lands of the School be excluded from the Marina unit of critical
habitat because of the protections and management actions provided for
Chorizanthe pungens var. pungens as part of the INRMP. We evaluated the
INRMP and found that it meets the three criteria described above. We
excluded these lands from critical habitat under the section 3(5)(A)
definition.''
4. Riverside Fairy Shrimp at Miromar AFB and Camp Pendleton 67 FR
59884-01 (September 24, 2002)
[NOTE: This designation was vacated by a Federal court on October
30, 2002, after an industry group claimed that FWS's economic impact
analysis was not sufficently broad. See Building Ind. Legal Defense
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required
FWS to complete a new designation by July 2004.]
``To date, Miramar is the only DOD installation that has completed
a final INRMP that provides, for sufficient conservation management,
and protection for vernal pools and the., Riverside fairy shrimp. We
reviewed this plan and determined that it addresses and meets the three
criteria. Therefore, lands on Miramar (proposed Critical Habitat Unit
5) do not meet the definition of critical habitat, and they have not
been included in this final designation of critical habitat for the
Riverside fairy shrimp.''
``To date, as the INRMP for Camp Pendleton has not yet been
completed and approved, these lands meet the definition of critical
habitat. Nevertheless, we have determined that it is appropriate to
exclude training areas on Camp Pendleton from this critical habitat
designation under section 4(b)(2). The main benefit of this exclusion
is ensuring that the mission-critical military training activities can
continue without interruption at Camp Pendleton while the INRMP is
being completed.''
``The proposed critical habitat designation included about 2,295 ha
(5,670 ac), or about 10 percent of the base. This exclusion does not
apply to the vernal pool complexes in the Wire Mountain Housing Area,
within the Cockleburr Sensitive Area, and lands leased to the State of
California and included within San Onofre State Park. Because these
lands are used minimally, if at all, by the Marines for training, the
312 ha (770 ac) of lands proposed on Camp Pendleton and within the San
Onofre State Park are retained in the final designation.''
California Red-legged Frog 66 FR 14626-01 (March 13, 2001)
``During the comment period for the proposed determination of
critical habitat for the California red-legged frog, we received and
subsequently evaluated a final INRMP for Vandenberg Air Force Base
found in Units 23, 24, and 26. This plan addresses the California red-
legged frog as a covered species and provides conservation measures for
the species. Based on this plan and Vandenberg's section 7 consultation
history, we have determined that the conservation measures afforded the
subspecies are sufficient to assure its conservation on the base.
Therefore, we have excluded Vandenberg Air Force Base from the final
determination of critical habitat for the red-legged frog resulting in
a reduction of approximately 38,445 ha (95,000 ac) from these units.''
``We also received and evaluated a request from Camp Parks Reserve
Forces Training Area found in Unit 15 and Camp San Luis Obispo found in
Unit 21, for exclusion from final designation because of the impact a
final designation would have on their training critical mission. The
proposed designation included about 90 percent of both installations.
After evaluation of the benefits of inclusion and the benefits of
exclusion, we have excluded Camp Parks resulting in a reduction of
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a
reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this
final designation.''
Arroyo Toad 66 FR 9414-01 (February 7, 2001)
[NOTE: This designation was vacated by a Federal court on October
30, 2002, after an industry group claimed that the economic impact
analysis was not sufficiently broad. See Building Ind. Legal Defense
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required
FWS to complete a new designation by July 2004.]
``Arroyo toad numbers on Camp Pendleton are significant and are
inclusive of the few remaining populations along the coastal plain.''
``[W]e have determined that it is appropriate to exclude Camp
Pendleton from this critical habitat designation under section 4(b)(2).
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption
at ,Camp Pendleton while the INRMP and programmatic uplands
consultation are being completed. This exclusion does not include that
part of Camp Pendleton leased to the State of California and included
within San Onofre State Park (including San Mateo Park) and those
agricultural leased lands adjacent to San Mateo Creek. Because these
lands are used minimally, if at all, by the Marines for training, the
lands proposed within the state park and agricultural leases are
retained in the final designation.''
``Fort Hunter Liggett seemed most concerned in their comments about
the inclusion of what they termed ``marginal and unsuitable'' habitat
and the resulting consultation requirements, and the perceived need to
reinitiate consultation on certain actions. We believe we have
adequately addressed much of their concern by eliminating the
northernmost reach of the river that was proposed, and by the reduction
in grid cell size to eliminate such marginal habitat (see Changes from
the Proposal section).''
``A primary concern expressed by Fallbrook Naval Weapons Station is
that the designation of critical habitat within certain developed areas
will impose additional restrictions on their operations. However,
existing structures, ordnance storage magazines and bunkers, and other
developed areas do not provide the primary constituent elements
necessary for the arroyo toad and thus by definition are not critical
habitat.''
Mexican Spotted Owl 66 FR 8530-01 (February 1, 2001)
[NOTE: In Center for Biological Diversity v. Norton, 240 F. Supp.
2d 1090 (D. Ariz. 2003), the court overturned the critical habitat
designation for the Mexican spotted owl on the ground that that U.S.
Forest Service lands could not legitimately be excluded from a critical
habitat designation on the basis of the ``special management'' language
in ESA Sec. 3(5). However, the court upheld FWS's exclusion of tribal
lands as within FWS's broad authority under ESA Sec. 4(b)(2). Thus, the
ruling does not remove FWS's flexibility to exclude DOD lands from a
critical habitat designation on the basis of a satisfactory INRMP and
the benefits to military training that the exclusion would provide. See
NWF Factsheet: DOD's Argument for an ESA Exemption is Based Upon a
Misstatement of the Law.]
``Fort Carson, Colorado, provided information during the comment
period that indicated the Mexican spotted owl is not known to nest on
the military installation and the species is a rare winter visitor.
Protected and restricted habitat is also not known to exist on Fort
Carson. Further, Fort Carson is updating the Integrated Natural
Resources Management Plan (INRMP) to include specific guidelines and
protection measures that have been recently identified through informal
consultation with us. The INRMP will include measures to provide year-
round containment and suppression of wildland fire and the
establishment of a protective buffer zone around each roost tree. The
target date of completion for this revision is early 2001. Fort Carson,
through consultation with us, indicated they will ensure that the INRMP
will meet the criteria for exclusion. They also provided additional
information and support to indicate that no protected or restricted
habitat exists on the base, and asked to be excluded from the final
designation. We agree that Fort Carson should be excluded from the
final designation.''
Coastal California Gnatcatcher 65 FR 63680-01 (October 24, 2000)
``To date, Marine Corps Air Base Miramar is the only DOD
installation that has completed a final INRMP that provides for
sufficient conservation management and protection for the gnatcatcher.
We have reviewed this plan and have determined that it addresses and
meets the three criteria. Therefore, lands on Marine Corps Air Base
Miramar do not meet the definition of critical habitat and have been
excluded from the final designation of critical habitat for the
gnatcatcher.''
California Red-legged Frog 66 FR 14626-01 (March 13, 2001)
``During the comment period for the proposed determination of
critical habitat for the California red-legged frog, we received and
subsequently evaluated a final INRMP for Vandenberg Air Force Base
found in Units 23, 24, and 26. This plan addresses the California red-
legged frog as a covered species and provides conservation measures for
the species. Based on this plan and Vandenberg's section 7 consultation
history, we have determined that the conservation measures afforded the
subspecies are sufficient to assure its conservation on the base.
Therefore, we have excluded Vandenberg Air Force Base from the final
determination of critical habitat for the red-legged frog resulting in
a reduction of approximately 38,445 ha (95,000 ac) from these units.''
``We also received and evaluated a request from Camp Parks Reserve
Forces Training Area found in Unit 15 and Camp San Luis Obispo found in
Unit 21, for exclusion from final designation because of the impact a
final designation would have on their training critical mission. The
proposed designation included about 90 percent of both installations.
After evaluation of the benefits of inclusion and the benefits of
exclusion, we have excluded Camp Parks resulting in a reduction of
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a
reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this
final designation.''
Arroyo Toad 66 FR 9414-01 (February 7, 2001)
[NOTE: This designation was vacated by a Federal court on October
30, 2002, after an industry group claimed that the economic impact
analysis was not sufficiently broad. See Building Ind. Legal Defense
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required
FWS to complete a new designation by July 2004.)
``Arroyo toad numbers on Camp Pendleton are significant and are
inclusive of the few remaining populations along the coastal plain.''
``[W]e have determined that it is appropriate to exclude Camp
Pendleton from this critical habitat designation under section 4(b)(2).
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption
at Camp Pendleton while the INRMP and programmatic uplands consultation
are being completed. This exclusion does not include that part of Camp
Pendleton leased to the State of California and included within San
Onofre State Park (including San Mateo Park) and those agricultural
leased lands adjacent to San Mateo Creek. Because these lands are used
minimally, if at all, by the Marines for training, the lands proposed
within the state park and agricultural leases are retained in the final
designation.''
``Fort Hunter Liggett seemed most concerned in their comments about
the inclusion of what they termed ``marginal and unsuitable'' habitat
and the resulting consultation requirements, and the perceived need to
reinitiate consultation on certain actions. We
In contrast to Marine Corps Air Base Miramar, other military
installations within the area proposed as critical habitat for the
gnatcatcher have not yet completed their INRMPs. Most notably, Marine
Corps Base Camp Pendleton (Camp Pendleton) represents one of the
largest contiguous blocks of coastal sage scrub in southern California.
The base provides habitat for numerous core populations of gnatcatchers
and essential habitat linkages between core populations in northern San
Diego County to those in southern Orange and southwestern Riverside
Counties. In light of these factors, we proposed 20,613 ha (50,935 ac)
of the approximately 50,000 ha (125,000 acre) base as critical habitat
for the gnatcatcher.''
``During both public comment periods for the proposal, the Marines
concluded that the designation, if it-were to become final, would
cripple their ability to conduct their critical training activities.
They asserted that ``this overwhelming proposal [if made final] will
have a long term, cumulative and detrimental impact on [their]
mission.'' The proposed critical habitat encompassed more than 40
percent of the Base. Out of the 46 training or joint use areas on Camp
Pendleton, the proposal included all of 22 and portions of 9 such
areas, which were concentrated on the coastal portion of the Base. In
addition, the proposal included three of four principal landing beaches
and the key inland training areas adjacent to these beaches where
Marines train in amphibious warfare, large and small tactics, and
warfighting skills. Camp Pendleton is the Marine Corps' only amphibious
training base on the Pacific coast.''
``Today, as the INRMP has not yet been completed and approved,
these lands on the base meet the definition of critical habitat.
Nevertheless, we have determined that it is appropriate to exclude Camp
Pendleton from this critical habitat designation under section 4(b)(2).
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption
at Camp Pendleton while the INRMP is being completed.''
``In particular, the Marines implement a set of ``programmatic
instructions'' that create 500-foot buffers around each 1998
gnatcatcher observation. These avoided areas, after eliminating
overlapping buffers and off-Base areas, total about 3,343 ha (8,260
ac), or a little less than 7 percent of the entire area of Camp
Pendleton. Although avoiding these areas constrains Marine training
activities to some degree, the effectiveness of their overall mission
is not compromised. The proposed critical habitat designation, however,
included about 20,613 ha (50,935 ac), or, to reiterate, about 40
percent of the Base. If this area is included in the final designation
of critical habitat for the gnatcatcher, the Marines would be compelled
by their interpretation of the Endangered Species Act to significantly
curtail necessary training within the area designated as critical
habitat, to the detriment of mission-critical training capability,
until the consultation is concluded, up to a year from now. As a
result, this increase in the extent of avoided areas would greatly
restrict use of the Base, severely limiting the Base's utility as a
Marine training site.''
``This exclusion does not include that part of Camp Pendleton
leased to the State of California and included within San Onofre State
Park (including San Mateo Park).
Because these lands are used minimally, if at all, by the Marines
for training, the 1,195 ha (2,960 ac) of lands proposed within the
state park are retained in the final designation. These lands do not
include lands leased for agricultural purposes.''
San Diego Fairy Shrimp 65 FR 63438-01 (October 23, 2000)
``We evaluated Department of Defense (DOD) Integrated Natural
Resource Management Plans (INRMPs) for DOD land that was within the
proposed critical habitat to determine whether any INRMPs met the
special management criteria. To date, Marine Corps Air Base, Miramar is
the only DOD installation that has completed a final INRMP that
provides for sufficient conservation management and protection for the
San Diego fairy shrimp. We reviewed this plan and determined that it
addresses and meets the three criteria. Therefore, lands on Marine
Corps Air Base, Miramar no longer meet the definition of critical
habitat, and they have been excluded from the final designation of
critical habitat for the San Diego fairy shrimp.''
``In contrast to Marine Corps Air Base Miramar, Marine Corps Base
Camp Pendleton (Camp Pendleton) has not yet completed their INRMP. Camp
Pendleton has several substantial vernal pool complexes that support
the San Diego fairy shrimp. In light of these factors, we proposed
4,902 ha (12,114 ac) of the approximately 50,000 ha (125,000 acre),
base as critical habitat for the San Diego fairy shrimp. Out of the 46
training or joint use areas on Camp Pendleton, the proposal included
all of five such areas, which were concentrated on the coastal portion
of the Base. In addition, the proposal included habitat found elsewhere
on the base.''
``Today, as the INRMP has not yet been completed and approved,
these lands on the base meet the definition of critical habitat.
Nevertheless, we have determined that it is appropriate to exclude Camp
Pendleton from this critical habitat designation under section 4(b)(2).
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption
at Camp Pendleton while the INRMP is being completed.''
For more information, contact Corry Westbrook, NWF Legislative
Representative, at 202-797-6840, westbrooknwf.org, or John Kostyack NWF
Senior Counsel, at 202 797-6879, kostyacknwf.org
<mailto:kostyacknwf.org>.
______
FWS's Case-by-Case Review of INRMPs Is Essential for Conserving
Imperiled Wildlife
reject defense department's proposed exemption from this accountability
The Defense Department has requested an exemption from the
Endangered Species Act (ESA) on the ground that the Integrated Natural
Resources Management Plans (INRMPs) it prepares under the Sikes Act are
an adequate substitute for ESA critical habitat protection.
However, the U.S Fish and Wildlife Service (FWS) has reviewed a
number of INRMPs in the past few years for the very purpose of
determining their adequacy as substitutes for critical habitat
protection. As shown in the table below, on repeated occasions, FWS has
determined that INRMPs were inadequate to conserve listed species.
U.S. Fish and Wildlife Service's Findings Regarding Inadequacy of INRMPs
----------------------------------------------------------------------------------------------------------------
Endangered and Threatened Species
DOD Installation Habitat at Installation FWS Findings
----------------------------------------------------------------------------------------------------------------
Pacific Missile Range, Navy's Barking Plants: Panicum niihauense (no common ``Management at the PRMF
Sands Facility, Kauai. name). Barking Sands Facility lands
currently consists of
restricting human access and
off-road vehicles from the
dune ecosystems and mowing
landscaped areas. These
actions alone are not
sufficient to address the
factors inhibiting the long-
term conservation of Panicum
niihauense. Therefore, we
cannot at this time find that
management, on these lands
under Federal jurisdiction as
sufficient to find that they
no longer meet the definition
of critical habitat.'' 68 FR
9116 (February 27, 2003).
Santa Cruz Armory, California......... Plants: Santa Cruz tarplant (Holocarpha ``We conclude that [the
macradenia). California Army National
Guard] does not yet have an
INRMP for the Santa Cruz
Armory that sufficiently
addresses the criteria above.
These lands do not warrant
exclusion from critical
habitat designation because
the proposed management plan
has not been approved and
does not contain assurances
that the management actions
it describes will be
implemented or effective.''
67 FR 63968 (October 16,
2002).
Navy's Barking Sands and Makaha Ridge Plants: Panicum niihauense (no common ``Management at the Barking
Facility, Kaua' i. name). Sands and Makaha Ridge
Sesbania tomentosa ('ohai).............. Facility lands currently
Wilkesia hobdyi (iliau)................. consists of restricting human
access and mowing landscaped
areas. These actions alone
are not sufficient to address
the factors inhibiting the
long-term conservation of
[plants] Panicum niihauense
and Wilkesia hobdyi.
Therefore, we cannot at this
time find that management on
these lands under Federal
jurisdiction is adequate to
preclude a proposed
designation of critical
habitat.'' 67 Fed. Reg. 3940,
3998 (Jan. 8, 2002).
Army's Dillingham Military Plants: Cyperus trachysanthos (pu'uka'a) ``We believe this land is
Reservation, Oahu. Hibiscus brackenridgei ssp. mokuleianus needed for the recovery of
(ma'o hau hele). one or more of these four
Nototrichium humile (kulu'i)............ [plant] species. Currently,
Schiedea kealiae (no common name)....... the Army is not implementing
any management actions for
these listed species at the
Dillingham Military
Reservation (HINHP Data base
2001; Army 2001b). In
addition, proposed management
actions identified for [the
plant] Schiedea kealiae in
the 2001 INRMP are `subject
to available funding'. We do
not believe that appropriate
conservation management
strategies have been
adequately funded or
effectively implemented.
Therefore, we cannot at this
time find that management of
this land under Federal
jurisdiction is adequate to
preclude a proposed
designation of critical
habitat.'' 67 Fed. Reg.
37108, 37161 (May 28, 2002).
Army's Kahuku Training Area, Oahu..... Plants: Adenophorus periens (no common ``Proposed management actions
name). identified for listed plant
Chamaesyce rockii (`akoko).............. species in the 2001 INRMP are
Cyanea grimesiana ssp. grimesianna `subject to available
(haha). funding'. We do not believe
Cyanea koolauensis (haha)............... that there are sufficient
Cyanea longiflora (haha)................ assurances that appropriate
Eugenia koolauensis (nioi).............. conservation management
Gardenia mannii (nanu).................. strategies will be adequately
Hesperomannia arborescens (no common funded or effectively
name). implemented. Therefore, we
Phyllostegia hirsuta (no common name)... cannot at this time find that
Tetraplasandra gymnocarpa (`ohe `ohe)... management of this land under
Federal jurisdiction is
adequate to preclude a
proposed designation of
critical habitat.'' 67 Fed.
Reg. 37108, 37161-37162 (May
28, 2002).
Army's Kawadoa Training Area, Oahu.... Plants: Adenophorus periens (no common ``Proposed management actions
name). identified for listed plant
Chamaesyce rockii (`akoko).............. species in the 2001 INRMP are
Cyanea acuminata (haha)................. `subject to available
Cyanea crispy (haha).................... funding'. We do not believe
Cyanea grimesiana ssp. grimesiana (haha) that the current management
Cyanea humboldtiana (haha).............. measures are sufficient to
Cyanea koolauensis (haha)............... address the primary threats
Cyanea long jora (haha)................. to these species, nor do we
Cyanea st. johnii (haha)................ believe that there are
Cytrandra dentata (ha iwale)............ appropriate assurances that
Cyrtandra virid flora (ha`iwale)........ appropriate conservation
Delissea subcordata (no common name).... management strategies will be
Eugenia koolauensis (nioi).............. adequately funded or
Gardenia mannii (nanu).................. effectively implemented.
Hesperomannia arborescens (no common Therefore, we cannot at this
name). time find that management of
Labordia cyrtandrae (kamakahala)........ this land under Federal
Lobelia oahuensis (no common name)...... jurisdiction is adequate to
Melicope lydgatei (alani)............... preclude a proposed
Myrsine juddii (kolea).................. designation of critical
Phlegmariurus nutans (wawae`iole)....... habitat.'' 67 Fed. Reg.
Phyllostegia hirsuta (no common name)... 37108, 37192 (May 28, 2002).
Phyllostegia parv fora (no common name).
Plantago princeps (ale).................
Platanthera holochila (no common name)..
Pteris,lidgatei (no common, name).......
Sanicula purpurea (no common name)......
Tetraplasandra gymnocarpa (`ohe`ohe)....
Viola oahuensis (no common name)........
Army's Makua Military Reservation, Plants: Alectryon macrococcus (mahoe)... ``While we believe that some
O`ahu. Alsinidendron obovatum (no common name). of these [plant] species
Bonamia menziesii (no common name)...... specific actions may control
Cenchrus agrimonioides (kamanomano)..... threats in the short term, we
Chamaesyce celastroides var. keanana do not believe that these
(`akoko). measures are sufficient to
Ctenitis squamigera (pauoa)............. address the primary threats
Cyanea superba (haha)................... to all of the species
Cyrtandra dentata (ha`iwale)............ reported from Makua Military
Delissea subcordata (no common name).... Reservation at this time . .
Diellia falcata (no common name)........ . However, we cannot at this
Dubautia herbstobatae (na`ena`e)........ time find that management of
Euphorbia haeleeleana (`akoko).......... this land under Federal
Flueggea neowawraea (mehamehame)........ jurisdiction is adequate to
Hedyotis degeneri (no common name)...... preclude a proposed
Hedyotis parvula (no common name)....... designation of critical
Hibiscus brackenridgei (ma`o hau hele).. habitat.'' 67 Fed. Reg.
Lepidium arbuscula (`anaunau)........... 37108, 37162 37163 (May 28,
Lipochaeta tenuifolia (nehe)............ 2002).
Lobelia niihauensis (no common name)....
Lobelia oahuensis (no common name)......
Neraudia angulata (no common name)......
Nototrichium humile (kulu`i)............
Plantago princeps (ale).................
Sanicula mariversa (no common name).....
Schiedea hookeri (no common name).......
Schiedea nuttallii (no common name).....
Silene lanceolata (no common name)......
Spermolepis hawaiiensis (no common name)
Tetramolopium filiforme (no common name)
Tetramolopium lepidotum ssp. lepidotum
(no common name).
Viola chamissoniana ssp. chamissoniana
(`olopu; amakani).
Army's Makua Military Reservation, Bird: Chasiempis sandwichensis ibidis ``To date, no military
Oahu (continued). (O`ahu `elepaio). installation on O'ahu has
completed a final INRMP that
provides sufficient
management and protection for
the elepaio.'' 66 Fed. Reg.
63752, 63762 (Dec. 10, 2001).
``We have determined that
current management [at Makua
Military Reservation] does
not adequately address the
conservation needs of the
Oahu elepaio. . . .'' 66 Fed.
Reg, at 63768.
Army's Schofield Barracks East Range, Plants: Chamaesyce rockii (`akoko)...... ``Proposed' management actions
O`ahu. Cyanea acuminata (haha)................. identified for listed plant
Cyanea koolauensis (haha)............... species in 2001 INRMP are
Cyanea longiflora (haha)................ `subject to available
Cyanea st johnii (haha)................. funding'. We do not believe
Cyrtandra subumbellata (ha`iwale)....... that the current management
Gardenia mannii (nanu).................. measures are sufficient to
Hesperomannia arborescens (no common address the primary threats
name). to these species, nor do we
Isodendrion laurifolium (aupaka)........ believe that there are
Lobelia gaudichaudii ssp. koolauensis sufficient assurances that
(no common name). appropriate conservation
Lobelia oahuensis (no common name)...... management strategies will be
Phlegmariurus nutans (wawae`iole)....... adequately funded or
Phyllostegia hirsuta (no common name)... effectively implemented.
Pteris lidgatei (no common name)........ Therefore, we cannot at this
Sanicula pupurea (no common name)....... time find that management of
Tetraplasandra gymnocarpa (`ohe`ohe).... this land under Federal
Viola oahuensis (no common name)........ jurisdiction is adequate to
preclude a proposed
designation of critical
habitat `` 67 Fed. Reg.
37108, 37163 (May 28, 2002).
Army's Schofield Barracks East Range, Bird: Chasiempis sandwichensis ibidis ``To date, no military
O`ahu (continued). (O`ahu `elepaio). installation on Oahu has
completed a final INRMP that
provides sufficient
management and protection for
the elepaio.'' 66 Fed. Reg.
63752, 63762 (Dec. 10, 2001).
``We have determined that
current management [at
Schofield Barracks] does not
adequately address the
conservation needs of the
Oahu elepaio. . . .'' 66 Fed.
Reg. at 63768.
Army's Schofield Barracks Military Plants: Abutilon sandwicense (no common ``Proposed management actions
Reservation, O`ahu. name). identified for listed plant
Alectryon macrococcus (mahoe)........... species in the 2001 INRMP are
Alsinidendron trinerve (no common name). `subject to available
Cenchrus agriminioides (kamanomano)..... funding'. We do not believe
Ctenitis squamigera (pauoa)............. that the current management
Cyanea acuminata (haha)................. measures are sufficient to
Cyanea grimesiana ssp. grimesiana (haha) address the primary threats
Cyanea grimesiana ssp. obatae (haha).... to these species, nor do we
Cyanea superba (haha)................... believe that there are
Delissea subcordata (no common name).... sufficient assurances that
Diellia falcata (no common name)........ appropriate conservation
Diplazium molokaiense (no common name).. management strategies will be
Eragrostis fosbergii (no common name)... adequately funded or
Flueggea neowawraea (mehamehame)........ effectively.implemented.
Gardenia mannii (nanu).................. Therefore, we cannot at this
Isodendrion longifolium (aupaka)........ time find that management of
Labordia cyrtandrae (kamakahala)........ this land under Federal
Lepidium arbuscula (`anaunau)........... jurisdiction is adequate to
Lipochaeta lobata var. leptophylla preclude a proposed
(nehe). designation of critical
Lipochaeta tenuifolid (nehe)............ habitat.'' 67 Fed. Reg.
Lobelia niihauensis (no conumon name)... 37108, 37163 (May 28, 2002).
Lobelia oahuensis (no common name)......
Neraudia anguldta (no common name)......
Nototrichium huinile (kulu`i)...........
Phyllostegia hirsuta (no common name)...
Phyllostegia mollis (no common name)....
Plantago princeps (ale).................
Schiedea hookeri (no common name).......
Schiedea nuttallii (no common name).....
Solanum sandwicense (popolo `aiakeakua).
Stenogyne kanehoana (no common name)....
Tetramolopium lepidotum ssp. lepidotum
(no common name).
Urera kaalae (opuhe)....................
Viola chamissoniana ssp. chamissoniana.
(`olopu; pamakani).
Army's Schofield Barracks Military Bird: Chasiempis sandwichensis ibidis ``To date, no military
Reservation, Oahu (continued). (O`ahu`elepaio). installation on O'ahu has
completed a final INRMP that
provides sufficient
management and protection for
the elepaio.'' 66 Fed. Reg.
63752, 63762 (Dec. 10, 2001).
``[T]he threat to elepaio at
Schofield Barracks of
wildfires resulting from
training activities has not
been managed adequately.
Larger scale rodent control
and improved fire management
will be necessary to meet the
long-term conservation needs
of the elepaio. We have
determined that current
management does not
adequately address the
conservation needs of the
Oahu elepaio. . . .'' 66 Fed.
Reg.at 63768.
Naval Computer and Telecommunications Plant: Marsilea villosa (`ihi`ihi)...... ``One [plant] species,
Area Master Station Pacific Radio Marsilea villosa, occurs on
Transmitting Facility at Lualualei, land at the Naval Computer
Oahu. and Telecommunications Area
Master Station Pacific Radio
Transmitting Facility at
Lualualei and we believe this
land is needed for the
recovery of this species.
Some management actions to
protect and maintain the
population are included in
the 2001 INRMP but these
actions have not been
adequately funded or
effectively implemented
(HINHP Data base 2001; Navy
200la). Therefore, we cannot
at this time find that
management of this land under
Federal jurisdiction is
adequate to preclude a
proposed designation of
critical habitat.'' 67 Fed.
Reg. 37108, 37164 (May 28,
2002).
Naval Magazine Pearl Harbor Lualualei Plants: Abutilon sandwicense (no common ``We do not believe that these
Branch, O`ahu. name). measures are sufficient to
Alectryon macrococcus (mahoe)........... address the primary threats
Bonamia menziesii (no common name)...... to these species on this
Chamaesyce kuwaleana (`akoko)........... land, nor do we believe that
Diellia falcata (no common name)........ appropriate conservation
Flueggea neowawraea (mehamehame)........ management strategies have
Hedyotis parvula (no common name)....... been adequately funded or
Lepidium arbuscula (`anaunau)........... effectively implemented.
Lipochaeta lobata (nehe)................ Therefore, we cannot at this
Lipochaeta tenuifolia (nehe)............ time find that management of
Lobelia niihauensis (no common name).... this land under Federal
Marsilea villosa (`ihi`ihi)............. jurisdiction is adequate to
Melicope sanit. johnii (alani).......... preclude a proposed
Neraudia angulata (no common name)...... designation of critical
Nototrichium humile (kulu'i)............ habitat.'' 67 Fed. Reg.
Phyllostegia hirsuta (no common name)... 37108, 37164 (May 28, 2002).
Plantago princeps (ale).................
Sanicula mariversa (no common name).....
Schiedea hookeri (no common name).......
Tetramolopium filiforme (no common name)
Tetramolopium lepidotum (no common name)
Urera kaalae (opuhe)....................
Viola chamissoniana ssp. chamissoniana
(`olopu; pamakani).
Naval Magazine Pearl Harbor Lualualei Bird: Chasiempis sandwichensis ibidis ``The primary threats to the
Branch, O`ahu. (Oaahu `elepaio). elepaio, predation by alien
rats and diseases carried by
alien mosquitoes, have not
been addressed on Navy lands.
. . . After reviewing the
draft INRMP for NAVMAG Pearl
Harbor Lualualei Branch, we
have determined that it does
not provide for adequate
protection or management for
the Oahu elepaio. The draft
INRMP does not include a
management strategy for the
Oahu elepaio and does not
provide an evaluation of
population distribution,
quality and quantity of
nesting habitat, threats, and
management needs for
recovery.'' 66 Fed. Reg.
63752, 63767 (Dec. 10, 2001).
Army's Fort Shafter, H`ahu............ Bird: Chasiempis sandwichensis ibidis ``To date, no military
(O`ahu `elepaio). installation on Oahu has
completed a final INRMP that
provides sufficient
management and protection for
the etepaio.'' 66 Fed. Reg.
63752, 63762 (Dec. 10, 2001).
Army's Pohakuloa Training Area, Island Plants: Asplenium fragile var. insulare ``However, current management
of Hawaii. (no common name). is not sufficient to address
Hedyotis coriacea (kio`ele)............. many of the factors
Neraudia ovata (no common name)......... inhibiting the long-term
Fortutaca sclerocarpa (po`e)............ conservation of any of these
Silene hawaiiensis (no common name)..... ten [plant] species and thus
Silene lanceolata (no common name)...... provide conservation benefits
Solanum incompletum (popolo ku mai)..... to the species. In addition
Spermolepis hawaiiensis (no common name) there is no guarantee of long-
Tetramolopium arenarium (no common name) term funding for on-going or
Zanthoxylum hawaiiense (a`e)............ future management actions. .
. . Therefore, we cannot at
this time find that
management on this land under
Federal jurisdiction is
adequate to preclude a
proposed designation of
critical habitat.'' 67 Fed.
Reg. 36968, 37002 (May 28,
2002).
----------------------------------------------------------------------------------------------------------------
______
DOD Has Used Misleading Anecdotes to Justify its Proposal to Exempt
Itself from the ESA'S Critical Habitat Protections
The Department of Defense (DOD) is again pursuing exemptions from
key environmental laws. A legislative package with these exemptions has
been sent to Congress, which will soon be casting crucial votes. If
this legislation is approved it will greatly reduce DOD's obligations
under the Endangered Species Act (ESA), Marine Mammal Protection Act,
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
The DOD is requesting these exemptions even though the General
Accounting Office concluded, based on a review of DOD's own readiness
reports, that the-military is at a high state of readiness and that DOD
has never demonstrated that adhering to: environmental laws has
significantly impeded training.
What justification has DOD offered sweeping exemptions from the
ESA? It turns out that the only evidence by DOD has consisted of highly
misleading anecdotes.
the esa's critical habitat protections have not significantly impeded
training
An analysis of DOD's ESA anecdotes shows that sweeping exemptions
from the ESA, are unwarranted--DOD has been able to carry out its
training mission while complying with the ESA. Due to successful
negotiations, DOD frequently persuaded the U.S. Fish and Wildlife
Service (FWS) to exclude DOD lands from critical habitat designations.
In the rare cases where critical habitat has been designated, DOD has
never identified an obstacle to achieving readiness. DOD has never
found it necessary to utilize the ``national security'' exemption
procedure provided by the ESA.
Camp Pendleton, California
DOD ASSERTION: ``At Camp Pendleton, proposed critical habitat under
the Endangered Species Act would cover 57 percent of the base . . . .''
(congressional Testimony of Raymond F. DuBois, Jr., Deputy
Undersecretary of Defense, March 13, 2003.)
THE REST OF THE STORY; Such proposals were rejected 2 years ago by
the FWS in its final rules, which excluded all but 875 acres of Camp
Pendleton's approximately 120,000 acres of training land from its final
critical habitat designations. Camp Pendleton encompasses 125,118
acres, roughly 5,000 acres of which are leased for various non-military
purposes, such as California's San Onofre State Park and agricultural
operations. FWS's critical habitat designations have been focused
almost entirely on these non-training lands.
The following list provides the number of acres originally proposed
and actually designated for each of the five species with proposed
critical habitat designations at Camp Pendleton. Some of these species
share the same habitats, so acreage totals should not be combined to
derive otal acres designated as critical habitat.
San Diego Fairy Shrimp Critical Habitat:
12,829 acres were proposed but only 40 acres were designated. The
entire 40 acres designated are within San Onofre State Park and are not
used for training.
Coastal California Gnatcatcher Critical Habitat:
50,992 acres were proposed but only 3,773 acres were designated.
None of the 3,773 acres designated are used for training: 2,960 acres
are within San Onofre State Park and the remainder are leased for
agricultural purposes.
Tidewater Goby Critical Habitat:
731 acres were proposed but 959 acres were designated. Less than
875 acres of designated lands are potential training lands; the
remaining 84 acres are within San Onofre State Park. Camp Pendleton has
the only remaining population of this endangered fish `in the region.
Riverside Fairy Shrimp Critical Habitat:
5,567 acres were proposed but only 770, acres were designated. All
of the 770 acres designated are in San Onofre State Park or otherwise
in leased areas that, according to FWS, are ``used minimally, if at
all, by the Marines for training.'' As a result of a building industry
lawsuit,-this designation has now been vacated and a more extensive,
economic impact analysis is now being prepared.
Arroyo Toad Critical Habitat:
38,210 acres were proposed but only 2,680 acres were designated.
According to FWS, all of these designated acres are either in San
Onofre State Park or on agricultural leased lands that are ``used
minimally, if at all, by the Marines for-"training.'' As a result of a
building industry lawsuit, this designation has now been vacated and a
more extensive economic impact analysis is being prepared. In summary,
despite the presence of 18 threatened and endangered species on Camp
Pendleton, less than 1 percent of the training lands on the base--not
the reported 57 percent--is designated as critical habitat for any
species.
DOD ASSERTION: ``At Camp Pendleton, proposed critical habitat under
the Endangered Species Act would cover 57 percent of the base,
including all 17 miles of the beach that is critical to training
operations. . . .'' (congressional Testimony of Raymond F. DuBois, Jr.,
Deputy Undersecretary of Defense, March 13, 2003. Emphasis added.)
THE REST OF THE STORY: The biggest limitation on training is not
critical habitat designation but the presence of Interstate 5, a
railroad, the San Onofre Nuclear Generation Plant, and other
topographic access limitations. The ESA only limits large unit
amphibious landings on two to three miles, of the 17-mile beach and
only during the five-to 6-month nesting seasons of the endangered
Western snowy plover and California least tern.
DOD essentially concedes that the training restrictions to protect
the Western snowy plover and California least tern are not a
significance to training. Camp Pendleton's successful efforts to
protect the snowy plover were recently celebrated in DOD's ``We're
Saving a Few Good Species'' poster campaign, with DOD declaring that
``an elite military force can train in environmentally sensitive areas
and protect a threatened species at the same time.'' The exemption from
the ESA's critical habitat provisions proposed by DOD. would not even
affect the restrictions related to the snowy plover and the least tern
those restrictions are in place pursuant to the ESA's jeopardy and
take. prohibitions. Neither species has designated critical habitat on
Camp Pendleton.
DOD ASSERTION: The proposed amendment is narrowly tailored and will
only apply to portions of Camp Pendleton and other military bases
needed for training.
THE REST OF THE STORY: The amendment would apply to land owned by
the military even if used for non-military purposes. In the case of
Camp Pendleton, the amendment would apply to San Onofre State Park,
which is leased to the State of California by the Marine Corps. San
Onofre is the 10th most popular park in California and currently is
home to several endangered and threatened species and their designated
critical habitat. However, because the Park is ``owned'' by the
Department, the amendment would preclude any designation of critical
habitat on park property.
Naval Base at Coronado, California
DOD ASSERTION: ``When Navy SEALs land on beaches at Naval Base
Coronado during nesting season, they have to disrupt their tactical
formation to move in narrow lanes marked by green tape, to avoid
disturbing the nests of the Western snowy plover and California least
tern. ``
THE REST OF THE STORY: Of the base's 5,000-yard ocean coastline,
the presence of these two endangered birds only restricts the use of
one, 500-yard training lane and the restriction is only in place for
the birds' five-to 6-month nesting season. And, as the Navy
acknowledges, this nest-marking ``work around'' has been important to
species recovery.
San Clemente Island, California
DOD ASSERTION: The presence of the endangered loggerhead shrike
shorebird has curtailed ``the use of illumination rounds or other
potentially incendiary shells during shore bombardment exercises at San
Clemente during the 6-month loggerhead shrike breeding season. ``
THE REST OF THE STORY: The,loggerhead shrike first became imperiled
on the island due to the Navy's introduction of a goat that decimated
the bird's habitat. As a result of conservation efforts on the island,
the shrike's population, once as low was 13 birds, now consists of 106
birds.
The use of live ordinance is restricted from June to October (not
during the February June breeding season) because of the risk of fire,
but this could be remedied by the use of inert ordinance. The sole
reason provided by the Marine Corps for its failure to use inert
ordinance is that its inventory of this kind of ordinance is limited.
Vieques Island Naval Range, Puerto Rico
DOD ASSERTION: ESA protections for the endangered hawksbill and
atherback sea turtles have restricted training at this range, including
the: possibility--of ``halting the entire training exercise for a
Carrier Battle Group' in the event of observing a single sea turtle. ``
THE REST OF THE STORY As a result of formal consultation under the
ESA, the Navy agreed to institute precautionary conservation measures.
In response, FWS issued a no jeopardy Biological Opinion allowing
battle group exercises to go forward without fear of delay due to the
ESA. The Navy's conservation measures, such as the relocation of turtle
eggs to a hatchery during amphibious landings, have resulted in the
successful hatching of over 17,000 hawksbill and leatherback sea turtle
eggs.
Barry M. Goldwater Air Force Range, Arizona
DOD ASSERTION: ``In the calendar year 2000, almost 40 percent of
the live fire missions at the Goldwater Range were canceled.''
THE REST OF THE STORY: This base is home to the last remaining
Sonoran pronghorn in the United States--with just 99 animals left, it
is one of the most endangered species of large mammals in the world.
The pronghorn's continued existence is threatened by air and ground
maneuvers, including bombing, strafing, artillery fire and low-level
flights. Despite this fact, DOD's proposed legislation would not
address the situation at Goldwater, as FWS has not designated any of
the range as critical habitat for the pronghorn out of fear that doing
so ``could seriously limit the Air Force's ability to modify missions
on its lands.'' In return, the Air Force is participating in a regional
ecological study with the Department of the Interior, the Nature
Conservancy, and the Sonoran Institute as a starting point for their
conservation efforts.
Fort Hood, Texas
DOD ASSERTION: ``Only about 17 percent of Fort Hood lands are
available for training without restriction. ``
THE REST OF THE STORY: Endangered species conservation measures are
singled out for blame in the limitation of training exercises at Fort
Hood, yet over 74 percent of the base's 217,600 acres are currently
restricted in order to accommodate large-scale cattle operations.
Conversely, less than 34 percent of Fort Hood's training land has faced
limited restrictions because of the presence of two endangered birds,
the black capped , vireo and the golden cheeked warbler. Even on these
restricted lands, however, many training activities are still allowed.
In certain ``core areas'' within the endangered birds' habitat, the use
of chemical grenades, artillery firing and digging are limited.
DOD has successfully worked with the ESA to achieve its military
readiness objectives while conserving imperiled species. Please ask
your lawmakers to oppose any proposals providing exemptions from the
Endangered Species Act and other environmental laws!
For more information, contact Corry Westbrook, NWF Legislative
Representative, at 202-797-6840, westbrooknwf.org
<mailto:westbrooknwf.org>, or John Kostyack, NWF Senior Counsel, at 202
, 797-6879, kostyacknwf.org
______
DOD Has a Long History of Working Successfully with the ESA
The Department of Defense (DOD) is again pursuing exemptions from
key environmental laws. A legislative package with these exemptions has
been sent to Congress, which will soon be casting crucial votes. If
this legislation is approved it will greatly reduce DOD's obligations
under the Endangered Species Act (ESA), Marine Mammgl Protection Act,
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
Last year, the Administration requested exemptions from six
environmental statutes, and Congress settled on an exemption from the
Migratory Bird Treaty Act.
DOD and ESA Success Stories
DOD has argued, and intends to do so again, that the ESA is too
inflexible and that a sweeping new exemption is needed. However, this
argument is not based on having encountered insurmountable hurdles
complying with the ESA. In fact, the General Accounting Office has
concluded, based on a review of DOD's own readiness reports, that the
military is at a high state of readiness and that DOD has never
demonstrated that the ESA has significantly impeded training.
Nonetheless, without any public debate, DOD sought to bypass the
ESA's careful balancing between military training needs and
conservation of imperiled wildlife. The facts show that this would be
an unfortunate and unnecessary departure from DOD's long history of
working successfully with the ESA.
Marine Corps Air Station Miramar, California
In an effort to protect the station's ten endangered species, the
U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65
percent of Miramar's land area as critical habitat. FWS later exercised
its discretion under existing law and withdrew this proposed
designation after the Marine Corps established a framework to protect
and preserve the station's endangered species, guaranteed the plan
would be implemented, and defined measures to judge the plan's
effectiveness. According to DOD, in so doing, ``the plan made military
readiness activities and endangered species protection mutually
compatible.''
Mokapu Peninsula of Marine Corps Base Hawaii
Among the 50 species of birds that call this island home are all
four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian
coot, Hawaiian gallinule, and the Hawaiian duck. Management activities
at the base have more than doubled the number of stilts on the base
over the past 20 years. The growth of non-native plants, which can
decrease the waterbirds' reproductive success, is controlled through
annual ``mud-ops'' maneuvers by Marine Corps Assault Vehicles (AAVs).
Just before the onset of nesting season, these 26 ton vehicles are
deliberately deployed in supervised plow-like maneuvers that break the
thick mats of invasive plants, improving nesting and feeding
opportunities while also giving drivers valuable practice in unusual
terrain.
Air Force in Alaska
In 1995 FWS found that the Air Force's low-level, high speed
training flights in Alaska had the potential to disturb the three North
American subspecies of endangered peregrine falcons. After the Air.
Force consulted with FWS under the ESA, the Air Force agreed to
protective ``no-fly'' zones around dense peregrine nesting locations.
The peregrine falcon has since recovered to the point that it has been
removed from the ESA's list of threatened and endangered species, and
FWS has declared that ``the knowledge gained by Air Force research
projects was important in the recovery process.''
Marine Corps Base Camp Lejeune, North Carolina
Initially 10 percent of this base was restricted in order to
protect the red-cockaded woodpecker, but now only 1 percent of the base
is restricted for that purpose,: as the number of breeding pairs of the
bird have doubled in the past 10 years. The Marines attribute the
success of its conservation efforts to its partnership with FWS, the
State of North Carolina, academic experts, and environmental advocacy
groups.
Fort Bragg, North Carolina
Fort Bragg contains important habitat for the red-cockaded
woodpecker, enabling the base to proudly claim that ``this single
species has survived because of the havens provided by our
installations' training land and ranges.'' Working with the Nature
Conservancy and others, DOD has created buffers around its
installations and training areas, lessening restrictions on training
while enabling the endangered red-cockaded woodpecker to move closer to
recovery.
DOD has successfully worked with the ESA to achieve its military
readiness objectives while conserving imperiled species. Please ask
your lawmakers to oppose any proposals that exempt DOD from the ESA and
other environmental laws!
For more information, contact Corry Westbrook, Legislative
Representative, National Wildlife Federation, at 202-797-6840,
westbrooknwf org.
______
Responses of Jamie Rappaport Clark to Additional Questions from Senator
Jeffords
Question 1. The DOD proposal substitutes the completion of an
Integrated Natural Resources Management Plan under the Sikes Act for
the designation of critical habitat under the Endangered Species Act.
In addition, the DOD is stating that due to a recent U.S. District
Court decision in Arizona, the change to current law is even more
necessary. However, in your testimony, you disagree with the DOD
interpretation of the Court's decision. Could you elaborate on this for
the committee?
Response. DOD testified before the Senate Armed Services Committee
that the current FWS approach--reviewing INRMPs on a case-by-case basis
for their adequacy as substitutes for critical habitat--is
satisfactory, but that it needs an ESA exemption because continuation
of this approach is jeopardized by the ruling in Center for Biological
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003). This is
inaccurate. The court ruling does not justify any concern about FWS's
ability to continue its case-by-case approach.
In Center for Biological Diversity, FWS excluded San Carlos Apache
tribal lands from a critical habitat designation pursuant to ESA
Sec. 4(b)(2) on the basis that the tribal land management plan was
adequate and that the benefits of exclusion outweighed the benefits of
inclusion. The Federal district court upheld the exclusion as within
FWS's broad authority under ESA Sec. 4(b)(2). At the same time, the
court held that lands could not legitimately be excluded from a
critical habitat designation on the basis of the ``special management''
language in ESA Sec. 3(5).
Under the court's reasoning, FWS continues to have the flexibility
to exclude DOD lands from a critical habitat designation on the basis
of a satisfactory INRMP and the benefits to military training that the
exclusion would provide. The ruling simply clarifies that such
exclusions must be carried out pursuant to ESA Sec. 4(b)(2) rather than
ESA Sec. 3(5). Thus, DOD's assertion that the Center for Biological
Diversity ruling prevents it from working with FWS to secure exclusions
of DOD lands from critical habitat designations is inaccurate.
Question 2. Do you believe that we should be substituting INRMPs
for critical habitat designation? What does a critical habitat
designation provide that an INRMP does not?
Response. Whether an INRMP should be substituted for critical
habitat designation on a DOD installation very much depends on the
specific facts at the installation in question. At some installations,
INRMPs do not adequately conserve imperiled species; at other
installations, INRMPs do a good job. ESA Sec. 4(b)(2) provides the
mechanism for determining when a substitution may be appropriate. It
states that FWS ``may exclude any area from critical habitat if [it]
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of critical habitat, unless [it]
determines, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species concerned.'' (Emphasis added.)
In implementing ESA Sec. 4(b)(2) on DOD lands, FWS must evaluate
the conservation benefits of relying on the INRMP as an alternative to
critical habitat at the time a species is considered for critical
habitat designation. In recent years, FWS has evaluated INRMPs by
applying the 3-part test discussed in the next answer. This case-by-
case approach provides an essential measure of protection for
threatened and endangered species.
DOD's proposed approach--in which INRMPs are automatically
substituted for critical habitat designations across-the-board--is
unwise because it fails to acknowledge the wide disparity of conditions
among DOD installations. Both FWS and DOD itself have recognized that
some INRMPs have not been fully implemented as needed to conserve
imperiled species. FWS statistics as of April 8, 2003, show that 87 (23
percent) of the 376 military installations that are required to prepare
INRMPs have not yet obtained FWS review and approval of INRMPs. Roughly
30 percent of those installations do not even have an INRMP. DOD's
Inspector General report on INRMPs dated October 1, 2002, states (at
page 8) that DOD and FWS do not have a process for tracking
implementation of INRMPs. In its annual report to Congress on INRMP
implementation, DOD has cited ``total dollars spent'' as its sole
measure of success. However, the DOD Inspector General finds (at page
9) that this report is inadequate because it does not reveal whether
INRMP projects have been funded or implemented.
A critical habitat designation provides a number of benefits that
an INRMP will not necessarily provide. For example, there is no
guaranteed funding or enforcement mechanism to ensure that
implementation of INRMPs takes place. In contrast, the ESA provides an
enforcement mechanism to ensure that adverse modification of critical
habitat is avoided. Moreover, INRMPs do not address off-base activities
that degrade habitat values on the DOD installation. In contrast, the
ESA requires that Federal agencies undertake a consultation with FWS
and carry out conservation measures to address off-base activities if
they degrade designated critical habitat on the installation.
Question 3. The DOD witness has stated that INRMPs are a superior
form of habitat and species protection and that the Clinton
Administration affirmed that, as well. Because you were part of the
Clinton Administration during the development of INRMPs, could you
please tell us if the DOD proposal encompasses what the previous
Administration envisioned.
Response. The DOD proposal is radically different from what the
previous Administration sought to accomplish with INRMPs. In the
previous Administration, we recognized that certain INRMPs could be
substituted for critical habitat designations only when measures were
taken to conserve threatened and endangered species. We rejected
substitutions of INRMPs for critical habitat designations in certain
instances where the INRMP would not adequately conserve listed species.
We employed a three-part test for evaluating the adequacy of these
conservation measures: (1) A current INRMP must be complete and provide
a conservation benefit to the species, (2) the plan must provide
assurances that the conservation management strategies will be
implemented, and (3) the plan must provide assurances that the
conservation strategies will be effective (i.e., provide for periodic
monitoring, adaptive management, and revisions as necessary).
In contrast, the DOD proposal does not allow for FWS to reject
substitution of INRMPs for critical habitat designations. It
essentially mandates an across-the-board substitution of INRMPs for
critical habitat designation regardless of the adequacy of the INRMPs'
measures to conserve listed species. Thus, DOD's proposal would prevent
designation of critical habitat even in cases where the INRMP
completely fails to address the needs of listed species on a DOD
installation.
______
Responses of Jamie Rappaport Clark to Additional Questions from Senator
Graham
Question 1. Why is it important to protect habitat on Department of
Defense lands?
Response. DOD manages approximately 25 million acres of land on
more than 425 major military installations. These lands, many of which
are islands of green space amidst a sea of urbanization, are home to at
least 300 federally listed species. Many species have already lost
large portions of their original ranges due to habitat destruction and
degradation. Without the refuge provided by these DOD installations,
many species would slide rapidly toward extinction.
Question 2. How do the proposed exemptions impact private property
landowners?
Response. The primary reason why species are listed under the ESA
is habitat loss. For most species, the ESA's protection and recovery
goals can be achieved only by taking regulatory and other measures to
secure most of the remaining habitat. FWS has some flexibility to
authorize habitat loss, but this flexibility is reduced every time that
a species habitat base is further eroded. If Congress were to remove
DOD's obligation to protect critical habitat as proposed by DOD, FWS
would have less flexibility to authorize habitat-disturbing activities
by private landowners. In order words, DOD's proposal would shift the
burden of species protection from the public to the private sector.
Question 3. Based on your experience at the Fish and Wildlife
Service, what is your impression of the impact of the fiscal year 2004
Budget Request reduction for environmental programs on the ability of
the Department of Defense to reconcile encroachment and training
problems.
Response. Adequate funding of environmental programs is essential
to DOD's success in reconciling environmental compliance with
encroachment and training. The Administration's proposed funding cuts,
if accepted by Congress, would jeopardize DOD's ability to carry out a
wide array of conservation activities, including acquiring buffer lands
between training areas and civilian populations, cleaning up
contaminated areas, developing and implementing INRMPs, and devising
and implementing ``work-arounds'' to protect endangered species from
the impacts of specific training exercises.
__________
Statement of Ingrid Lindemann, Councilmember, Aurora, Colorado, on
behalf of the National League of Cities
Mr. Chairman, members of the committee. I am Ingrid Lindemann,
Councilmember from Aurora, Colorado and Advisory Council representative
to the National League of Cities' Energy, Environment and Natural
Resources Committee. I have also spent most of my adult life as a
military spouse. I am here today to testify on behalf of NLC and the
18,000 cities and towns across America we represent on the Defense
Department's proposed changes to environmental laws. The concerns of
the nation's cities and towns are most especially relevant to the
proposed exemptions from the Resource Conservation and Recovery Act
(RCRA), Superfund (CERCLA) and the Clean Air Act.
I want to make clear at the outset, that the municipal elected
officials who comprise the National League of Cities support effective
testing and training of the men and women who serve in our Armed Forces
to ensure they are the best-equipped and best-prepared in the world.
But we do not believe it is necessary or appropriate to accomplish--
this goal at the expense of our non-military citizens.
NLC's National Municipal Policy calls on Federal facilities to
comply with Federal and state environment, health and safety laws and
to be subject to the enforcement provisions of such statutes. The
ramifications of a blanket exemption for military facilities and
activities from such laws will be serious and untenable at the local
government level. First, we believe there is significant potential for
adverse public health effects in cities with respect to air, drinking
water, and management of hazardous waste. Second, there is substantial
potential for serious negative economic effects on local communities,
Potential for Significant Negative Health Effects
The Clean Air Act imposes health-based air quality standards.
Creating a fiction--as we believe the DoD proposal does--that an area
is in compliance with the National Ambient Air Quality Standards when
it is not--is unacceptable. While there may be no legal requirement on
either the state or local government to seek offsets to the air
pollution caused by military activities, the community will have an air
quality problem which, in reality, has health consequences for the
people who live there. We are also concerned that a fictitious
attainment designation, may even exacerbate the air quality problem by
allowing non-military facilities and/or activities to use the
military's pollution as cover for relaxing or ignoring what might
otherwise be required of them.
Exemptions from the Resource Conservation and Recovery Act are
equally problematical, in part because of their impact on the
appropriate disposal and/or clean-up of hazardous waste, but equally
importantly, because of the impact, or potential impact, on sources of
drinking water which in many parts of the country are already
diminishing and/or scarce. It is estimated that there are 16 million
acres of transferred ranges around the country, which are potentially
contaminated by unexploded ordnance. Contamination, and subsequent
closure, of sources of drinking water by military ordnance constituents
such as perchlorate, RDX and TNT have already occurred in Maryland and
Massachusetts--under current law. What will happen in these
municipalities if the Department of Defense is exempted from the
relevant environmental statutes? While finding alternative sources of
drinking water in the water-rich eastern
United States may be eminently feasible, those of us in the water-
limited west have major legitimate concerns about our ability to
identify alternative safe and affordable sources of drinking water. We
can ill-afford the kind of contamination we have seen at the Aberdeen
(Maryland) Proving Ground or Massachusetts Military Reservation. We
believe the citizens in municipalities affected by such contamination
should not have their health compromised because of an exempted defense
installation, nor should they be required to bear the burden of cleanup
costs or the costs of finding alternative sources of drinking water.
Negative Economic Impacts on Local Communities
Exemption of military facilities from hazardous waste clean-up
standards would be a major impediment to redevelopment of closed
facilities. Of the 165 Federal facilities currently on the National
Priorities List, it is our understanding that 129 are or were military
facilities. Many of these facilities are on prime real estate, in or
near cities or towns. Among these are sites that are decommissioned or
in the process of being decommissioned. Until they are restored, they
are unusable and an economic drain on the communities in which they are
located. If Congress opts to exempt these facilities from CERCLA
remediation requirements, they will never be viable opportunities for
reuse and economic growth in the communities that hosted them since
Federal law prohibits deeding the property before the site is
environmentally clean or before effective environmental remediation is
in place. Hazardous materials remaining on the properties will continue
to pose a threat to the health and safety of near-by citizens and
preclude any effective opportunity for redevelopment and economic
sustainability in the surrounding community.
The closure of a military facility has a huge economic impact in
the area and without the ability to redevelop and reuse the site, it
can leave the host community in a permanent economic morass.
Exclusion of military facilities and contractors from the
requirements of RCRA and CERCLA will negate the positive economic
impact of hosting a military installation. No community would welcome
even the short-term economic benefit of having a military facility
knowing that the military has carte blanche to contaminate and pollute
and no responsibility--now, or in the future for mitigating,
remediating or even controlling such activities.
We also believe the amendments proposed by the Department of
Defense to the Federal environmental statutes in question are
unnecessary. As Assistant Secretary of Defense Paul Wolfowitz indicated
in a March 7, 2003 memorandum to the Secretaries of the Army, Navy and
Air Force, ``In the vast majority of cases, we have demonstrated that
we are able both to comply with environmental requirements and to
conduct necessary military training and testing.'' Exemptions are
broadly available--and have been granted--when the president determines
such exemptions to be in the ``paramount interest of the United
States.''
Furthermore, in recent testimony before this committee, EPA
Administrator Christine Todd Whitman said she was unaware of any
military training program that was held up because of environmental
statutes.
To the best of our knowledge, the Defense Department has provided
no examples where environmental requirements have impeded its
activities. There appears to be no demonstrable problem with
environmental laws adversely affecting military training and testing
activities and if there is, the statutes provide adequate and prompt
relief. If the issue is that the process for obtaining exemptions is
cumbersome--and there appears to be no evidence that this is the case
either--then the appropriate response would be to amend or adjust the
process. We concur with the March 19 statement of the Attorneys General
before the House Armed Service Committee that 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.
For municipalities the critical issues are protection of public
health and the economic impact of contaminated properties in our
communities. While supportive of our military, the need for adequate
and appropriate training and testing, and the legitimate concerns about
national security, we do not believe unfettered authority to pollute
our nation's cities and adversely affect the health of our citizens is
the appropriate way to accomplish these objectives.
Thank you for the opportunity to present the views of the National
League of Cities.
______
Responses of Ingrid Lindemann to Additional Questions from Senator
Inhofe
Question 1. For the record and the audience, though I know Senator
Allard knows some of this answer, would you mind going into your
experience regarding environmental policy?
Response. I have served on the National League of Cities' (NLC)
Energy, Environment and Natural Resources Steering Committee (EENR)
since 1990. I was vice-chair of the committee in 1995 and chaired the
committee in 1996. I am now the NLC Advisory Council representative to
the EENR committee. The mission of this committee is to develop NLC's
National Municipal Policy regarding issues of energy, the national
environment, and the use of our natural resources. NLC's National
Municipal Policy forms the basis of NLC's efforts to influence
congressional legislation. Through the years members of this committee
(myself included) have been instrumental in the passage and/or
reauthorization of the Clean Air Act, Endangered Species Act, Marine
Mammal Protection Act, Solid Waste Disposal Act, Comprehensive
Environmental Response, Compensations and Liability Act (CERCLA or
Superfund), Clean Water Act, Safe Drinking Water Act, etc. In order to
accomplish this, several times each year our committee met with, and
was briefed by, representatives of the affected Federal agency(ies) to
ensure our thorough understanding of the issues and ramifications of
proposed actions.
On the home front, I served on the Regional Air Quality Council
(RAQC), which shepherded the Denver metropolitan area through the
elimination of our ``brown cloud'' and redesignation of the area from
non-attainment of the National Ambient Air Quality Standards (NAAQS) to
attainment. Many other environmental issues have required my attention
and therefore necessitated my delving into existing environmental
legislation. I regularly deal with issues surrounding two closed
military installations (Lowry AFB and Fitzsimmons Army Hospital), a
landfill with Superfund designation, and a former Air Force bombing
range with remaining munitions (some even affecting our drinking water
supply). In addition, the siting of new drinking water reservoirs,
cleaning streets--whether through sweeping and creating PM<INF>10</INF>
particles or the runoff of melting snow--and many other municipal tasks
require a thorough knowledge and understanding of environmental policy.
In addition, I actively participated in the Aspen Institute Series on
the Environment where senior government officials and corporate CEOs
attempted to find methods of preserving the environment without
bankrupting the Nation.
In short, Senator, I believe I am well qualified to testify before
this committee on this issue and it's potential impact on the citizens
of the United States.
Question 2. I want to assure you, Ms. Lindemann, that as a former
mayor of Tulsa, I certainly have the interests of the cities in mind.
Sometimes, it can be out of the regular routine for those involved in
city government to interact with Federal agencies.
How much time have you personally spent analyzing the actual
legislative language and its relationship to other environmental laws?
Response. As you can see in my answer to the previous question, I
have spent considerable time over the last 13 years dealing with
Federal legislation, some of it assisted by my staff, but most of it on
my own or in discussion with other municipal officials. Moreover, in
recent weeks I have spent many hours analyzing the proposed exemptions
and assessing their impact on the environmental quality of life in
communities adjacent to military installations. It is on that
cumulative effort that my remarks are based.
Question 3. How much time have you personally spent talking to the
Department of Interior, the Environmental Protection Agency, or the
Department of Defense on these issues?
Response. My personal interaction with the Department of the
Interior has been minimal but many hours have been spent interacting
with representatives of the Environmental Protection Agency (EPA) and
the Department of Defense (DOD). Through my participation in the Aspen
Institute Series on the Environment I was at the table with EPA
representatives from the national and regional levels. My community and
I have expended considerable time and money to interact with DOD on
various issues including environmental remediation of formerly used
defense sites (FUDS). Moreover, as the spouse of a military member for
more than a quarter of a century, I recognize the importance of
training on the efficiency of our military and the safety of our
military personnel. With that in mind, consider that I bring a
perspective and belief that with little additional effort, military
training can be accomplished without sacrificing the environment in
which we all live.
______
Responses of Ingrid Lindemann to Additional Questions from Senator
Boxer
Question. The military has made a point to say that relief from our
toxic waste laws would apply only to waste on military sites. Yet we
know that this waste has a history of migrating to civilian areas, or
of getting buried and appearing later in children's playgrounds as
recently happened in the D.C. area. Do you believe that so-called
onsite waste would prove a health threat offsite? And are you concerned
about the health of military personnel who live on those military
sites? Please explain.
Response. Senator, my husband served our nation for more than 27
years. We raised three children on and near Air Force installations.
The last base we lived on was Lowry Air Force Base in Colorado (now
closed) which is currently attempting to clean a Tri-Chloroethelyne
plume which originates on the base and has migrated under the homes in
neighborhoods north of the base. Of course I am concerned about the
health of those persons living and working on the installations and in
the surrounding areas. Recently asbestos containing materials (ACM) was
found buried in an area of Lowry which had been a trailer park for
military personnel--how many of their children may have been exposed to
that asbestos because, at that time, the military was not concerned
about such things? I fully recognize that the Federal Government will
clean these sites, but I also recognize that these sites are part of
our communities and that pollution--whether it be in the air, the
water, or the land--does not respect political boundaries.
__________
Statement of Bonner Cohen, Ph.D., Senior Fellow, Lexington Institute
Good morning. My name is Bonner Cohen. I am a senior fellow at the
Lexington Institute, a non-profit, non-partisan, public policy research
organization located in Arlington, Virginia. I want to thank Chairman
Inhofe and the other members of this committee for the opportunity to
address a subject bearing directly on our nation's security. As a
senior member of the Senate Armed Services Committee, and as chairman
of this committee, Chairman Inhofe is uniquely qualified to pass
judgment on the issue before us today.
And that issue is a deadly serious one. In recent years, a host of
environmental statutes designed to do such things as protect endangered
species and safeguard marine mammals has been applied to military
installations and activities where they come in direct conflict with
the proper training of soldiers for the deadly business of battle.
Everyone in this room knows that the military has a unique mission, one
that requires the highest state of readiness so as to prevent the
needless sacrifice of young lives. The Department of Defense has come
to Capitol Hill with a package of requests, because it has a problem
that needs to be addressed. Failure to do so in a timely and sensible
fashion will put the lives of those in uniform at an unnecessary risk.
This need not be the case. By making a few narrowly focused, but
vitally important, clarifications to some of our environmental
statutes, we can continue to provide for environmental progress,
without jeopardizing military readiness. Let me briefly address two
areas where, through the application of common sense, we can safeguard
national security and provide for environmental stewardship.
Marine Mammal Protection Act (MMPA): The Marine Mammal Protection
Act's definition of ``harassment'' has been a source of confusion since
it was included in the 1994 amendments to the statute. The statute
defines ``harassment'' in terms of ``annoyance'' or the ``potential to
disturb,'' vague standards which have been applied inconsistently and
are difficult to interpret. Both the Clinton and the Bush
Administration have sought to refine this definition. But efforts by
the National Marine Fisheries Service to solve the problem through a
regulatory interpretation of ``harassment'' proved unworkable and would
have opened the door to substantial litigation. In 2001, the Navy, the
National Marine Fisheries Service (NMFS), and the US Fish & Wildlife
Service (FWS) developed a definition of ``harassment'' which all three
agencies could accept. In line with a recommendation put forward by the
National Research Council, it clarifies that ``harassment'' as applied
to military readiness activities to mean death, injury, and other
biologically significant effects, including disruption of migration,
feeding, breeding, or nursing.
Until the law is amended to clarify the definition of
``harassment,'' the Navy and the NMFS are subject to lawsuits over
application of that term. Indeed, several groups have already announced
their intention to challenge the deployment of the Navy's Low Frequency
Active Sonar, a key defense against quite diesel submarines launched by
rogue states, and for which the Navy has an immediate and critical
need.
Worldwide, all activities undertaken by the Defense Department
account for fewer than 10 deaths or injuries to marine mammals
annually, as compared with 4,800 deaths annually resulting from
commercial fishing. By giving a science based definition to
``harassment, we can ensure protection of marine mammals while allowing
the Armed Forces sufficient flexibility to training and other
operations essential to national security.
Endangered Species Act (ESA): The Department of Defense manages 25
million acres on more than 425 military installations in the United
States, providing sanctuary to some 300 species listed as threatened or
endangered. More often than not, it is good stewardship of land, be it
in the public or private sector, that attracts threatened or endangered
species. This has created problems for the military which must train
troops and test weapons in realistic conditions on bases that harbor
endangered species. Applying the ESA's provision pertaining to
``critical habitat'' to military installations, as some litigants are
demanding, would undermine readiness activities in bases all over the
country, including Fort Hood, Texas, Camp Pendleton, California, and
Fort Polk, Louisiana--just to name a few.
The courts have held that critical habitat is intended for species
recovery. Hence, the designation of critical habitat is a bar to any
land use that diminishes the value of that land for species recovery.
Rather than military lands being used for military purposes, once
critical habitat is designated, such lands must be used first for
species recovery. The most sensible way to deal with this issue is
through a legal instrument that already exists. Instead of critical
habitat designation, endangered species on military reservations should
continue to be protected through Integrated Natural Resource Management
Plans (INRMPs), which are required under the Sikes Act and are
developed in close cooperation with the Department of Interior and
state wildlife agencies. This approach has been endorsed by both the
Clinton and the Bush Administrations. The widespread presence of
threatened and endangered species on military bases attests to the
effectiveness of INRMPs. There will always be problems, but they are
best dealt with through the holistic approach provided by INRMPs rather
than through the cumbersome species-by-species analysis required by the
designation of critical habitat.
As General John M. Keane, Vice Chief of Staff, United States Army,
has testified before Congress, the armed forces of this country are
facing a ``train wreck'' in military readiness unless the Department of
Defense is granted the relief it has requested. As written, the
Endangered Species Act and other environmental statutes are an open
invitation to never-ending waves of lawsuits by activists groups more
interested in promoting their agenda-than in saving lives.
In closing, I would like to pose two questions that go directly to
the heart of the readiness issue: If soldiers cannot be trained in
realistic conditions m areas designated for that purpose, then where is
that training supposed to take place? If weapon systems cannot be
tested in realistic conditions in areas designated for that purpose,
then where is that testing supposed to take place?
Thank you very much.
__________
Statement of Edwin F. Lowry, Director, California Department of Toxic
Substances Control
I am Edwin F. Lowry, Director of the California Department of Toxic
Substances Control. My Department's charge is to protect public health
and the environment in California from the adverse effects associated
with exposure to hazardous wastes. In accomplishing this mission, we
regulate hazardous waste management and oversee hazardous site cleanups
throughout the State of California.
I appreciate the opportunity to offer my views concerning
amendments proposed by the Department of Defense (DoD) to the Resource
Conservation and Recovery Act (RCRA) and to the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) with
regard to the Readiness and Range Preservation Initiative. This
statement represents the views of the Department of Toxic Substances
Control related to our statutory responsibility to oversee the
generation, transportation, treatment, storage, disposal, and cleanup
of toxic substances in California.
Before I begin to outline our concerns with the proposed amending
language for RCRA and CERCLA, I wish to make three contextual points:
1. I want to assure you of our strong and continuing support for
ensuring the readiness of the United States armed forces. Further, we
fully appreciate that combat training and equipment testing is
essential to making our armed forces the strongest military force on
the globe.
2. California has more experience with environmental issues at
military facilities than does any other State. My Department has been
and continues to be involved with environmental cleanup at 29 closed or
closing installations, more than twice the number as the next most
affected State. We work with 107 other open military installations both
on matters having to do with hazardous waste management and with site
cleanup. Further, California is home to 1,090 formerly used defense
sites, at least one quarter of which will require cleanup to restore
the land to productive use. It is clear, then, that we bring to the
discussion a great deal of practical experience with respect to
environmental issues at military properties.
3. I am proud to report to you that my Department has established
what I consider to be an exemplary record of collaboration with the DoD
and with each of the military services. This productive and cooperative
relationship manifests itself most obviously in the many situations in
which we have exercised considerable flexibility in our regulatory
oversight to accommodate the operational needs of specific
installations. I have provided you with a handful of examples.
Having reviewed the proposed Readiness and Range Preservation
Initiative language, my concerns focus on five areas, each of which I
will expand upon briefly in a moment:
1. As a practical matter, this proposal could allow the military to
designate any location as an operational range.
2. The proposal, as worded, could exempt non-military entities,
such as defense contractors, from having to comply with current
environmental regulations.
3. The proposal could limit our ability to adequately regulate or
cleanup closed training ranges.
4. The proposal could limit our ability to restore formerly used
defense sites to productive use.
5. The proposal could allow significant unnecessary contamination
of California's valuable groundwater resources.
To repeat a previous comment, while I strongly believe that
providing adequate training and testing opportunities is imperative, I
believe with equal conviction that doing so does not have to be at the
expense of public health and natural resources in California.
National security involves many elements, including protecting our
environment for generations to come and restoring the land and water
that has been adversely affected by the release of hazardous
substances. In my estimation, this proposal sacrifices the security of
California's and the nation's environment.
Let me now further describe the five concerns I noted.
First, the proposed amendments could jeopardize public health and
safety by allowing DoD to avoid important environmental safeguards even
when there is no immediate effect on military readiness. This is
because the military could designate an location as an operational
range, whether or not it had any plans to use it for testing or
training. While Section 2019(a)(1) of the proposal would modify the
RCRA definition of ``solid waste'' to include ``explosives, unexploded
ordnance, munitions, munitions fragments, or constituents thereof' that
are deposited on an ``operational range'' and are removed for treatment
or disposal, it would exempt all wastes that are left on an
``operational range,'' whether or not the range is still actually used
for munitions testing or training.
The proposal also would severely curtail California's ability to
regulate the practice of using open burning or open detonations to
``treat,'' i.e., destroy explosives and unexploded ordnance. Given the
known environmental impacts of this practice, which includes the
release of metal fragments and toxic propellant residues, and the yet
unknown environmental impacts, we find the proposal to be very
troubling.
Second, the proposal is written broadly enough that it could apply
anywhere that explosives or other covered materials are handled, even
non-military facilities. Section 2019(a)(2) would exclude from the
definition of ``solid waste'' any ``explosives, unexploded ordnance,
munitions, munitions fragments, or constituents thereof' that are used
in military training, research and development or testing, or deposited
on an operational range.'' In other words, not only would it apply to
military ranges, but it could also exempt defense contractors from the
requirements of RCRA. Defense contractors handle a number of hazardous
substances that are constituents of munitions or their delivery
systems, such as perchlorate.
Perchlorate contamination from defense contractor facilities is a
pervasive problem in groundwater in California and also in the Colorado
River. As we see more and more water purveyors forced to shut down
their municipal wells, I can say with confidence that perchlorate
contamination threatens the drinking water supplies of millions of
Californians. Obviously, we can ill-afford to exempt from regulatory
oversight defense contractors which might exacerbate this troubling
situation.
Third, contrary to representations by DoD, the proposal has not
been drafted to limit its effect to operational ranges. The language at
the end of Section 2019(a)(2) states: ``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.''
As written, this language would only apply to Section 2019(a)(2) and
not to Section 2019(a)(1). Thus, this language would not affect
materials left on an operational range, and these materials would still
be excluded from the definition of ``solid waste'' by Section
2019(a)(1), even after the range ceased to be operational. The proposal
would also narrow our authority to use CERCLA to ensure cleanups at
military bases. Section 2019(b) would exclude from the CERCLA
definition of ``release'' any ``explosives, unexploded ordnance,
munitions, munitions fragments, or constituents thereof'' that are
deposited and expected to remain on an ``operational range.'' As stated
above, the military could designate any location as an ``operational
range,'' including an inactive range that had not been used for that
purpose for decades and might not ever again be used as a range.
Moreover, the proposal would also limit our cleanup authority at closed
ranges, because materials deposited on a range when it was open could
still be excluded from the definition of ``release'' even after it was
closed. For obvious reasons associated with potential future land uses,
this element of the proposal is completely at odds with the protection
of public health and the environment.
Fourth, the circuitous exclusion described above could limit
California's authority to ensure cleanups at formerly used defense
sites. Currently, there are 1,090 such sites in California, of which at
least 200 are likely to be contaminated with explosives and ordnance.
These sites will pose obvious risks to public safety if they are not
restored to safe conditions.
Fifth, the proposal would exclude from the definition of ``solid
waste'' and the definition of ``release'' constituents of munitions
(including perchlorate) in groundwater below a range as long as they
had not migrated off range. Once contaminated groundwater migrates off
range it can be far more difficult to contain, posing much higher risks
and costs. As I noted previously, California's pervasive perchlorate
contamination is causing the shutdown of public drinking water wells
and other serious impacts at present. We object to any proposal that
would allow a known problem to be uncontrolled until such time as an
artificial boundary is crossed.
I have two additional, non-technical concerns. First, the section-
by-section analysis prepared by DoD for this proposal claims, as the
basis for this initiative, that:
In recent years . . . novel interpretations and extensions of
environmental laws and regulations, along with such factors as
population growth and economic development, have significantly
restricted the military's access to and use of military lands and test
and training ranges, and limited its ability to engage in live-fire
testing and training.
As the Director of California's Department of Toxic Substances
Control, do not agree with this conclusion. Far from significantly
restricting the use of test and training ranges, I am not aware of any
instances in California in which any hazardous waste management or
cleanup requirement has impeded, limited or infringed on the military's
ability to conduct missioncritical operations, including training or
testing activities. In fact, nationally, the Washington Post recently
quoted EPA Administrator Christine Todd Whitman as saying, ``I don't
believe that there is a training mission anywhere in the country that
is being held up or not taking place because of environmental
protection regulation.''
Contrary to the DoD statement, my Department has consistently
worked with DoD and the military services to resolve peripheral issues
resulting from range use. For example, open burning of excess
propellants and open detonation of munitions left over from live fire
exercises may be managed under federally delegated State hazardous
waste management authorization in order to ensure that releases are
properly controlled. These kinds of activities have no effect on the
conduct of the range firing itself. Nevertheless, we have provided base
managers with the necessary flexibility to carry out these activities.
We routinely approve variances to allow military facilities to
accumulate wastes beyond the normal time limits, and we issue emergency
permits to allow the open burning of munitions that cannot safely be
removed to the permitted treatment area.
For site cleanups on operating military bases, we have worked with
base managers to position monitoring devices and schedule the
collection of environmental samples in a manner that will avoid any
conflict with ongoing military base operations. These are just a few of
the many ways that we have worked cooperatively with the military to
resolve issues arising from the implementation of environmental laws.
The attached document provides other examples. If the very premise of
DoD's proposal is that California or any State has adversely affected
the military's ability to maintain the highest state of readiness, I
assert that the premise is flawed and, therefore, the proposal as a
whole is unnecessary. In fact, our substantial record of cooperation
with the military demonstrates that there is no need for the proposed
RCRA and CERCLA amendments.
Finally, assuming the worst about other States' hazardous waste
management and cleanup practices, to which I am hard-pressed to give an
example, even if there were a situation in which RCRA or CERCLA
interfered with essential live-fire testing or training, these statutes
still provide extraordinary Presidential authority to suspend their
application so that essential training activity could be continued. I
am not suggesting use of this authority should become routine, nor that
it be used lightly. Like all extraordinary powers, they must be used
with respect and circumspection. But the fact remains that the
authority is available. Congress has already provided remedies for
extraordinary circumstances, and if they are insufficient, a much
stronger justification needs to be put forth.
To conclude, I am concerned that DoD's proposal could lead to an
open-ended inclusion of environmentally damaging activities under the
umbrella of ``readiness.'' As a result, not only might legitimate
training and testing activities lead to avoidable releases of
contamination, but other marginally related activities might also cause
avoidable releases of hazardous substances. The military, as
responsible party, and State and Federal regulators would then have to
revisit these releases in the future as much larger and more expensive
problems requiring cleanup.
I want to close by reiterating my strong desire to assist DoD and
the military services in more practical ways. The Department of Toxic
Substances Control will continue to work with the military to make
effective use of their active range resources, and to improve the
likelihood that those ranges will continue to be sustainable into the
indefinite future. We believe we have an obligation to actively assist
our armed forces in improving and maintaining the high level of
preparedness required by the times. Their well being and readiness are
very important to all Californians, and we will work actively with
their representatives to find ways to make range operations safe and
workable. At the same time, we are obligated to protect California from
environmental injury from all sources. I firmly believe that national
security includes environmental protection and that there are better
approaches to ensure that military security and environmental security
complement, rather than counteract one another.
__________
Statement of Colonel Addison D. Davis, IV, Garrison Commander, Fort
Bragg, North Carolina
Mr. Chairman and distinguished members of the committee, thank you
for the opportunity to present this testimony regarding environmental
encroachment issues at Fort Bragg, North Carolina.
Fort Bragg is situated in the Sandhills of North Carolina, 10 miles
northwest of downtown Fayetteville in the south central portion of the
State. Fort Bragg occupies 161,000 acres (or 251 square miles),
stretching into six counties. Included within this area are Camp
Mackall (an auxiliary training complex), 7 major drop zones, 4 impact
areas, 84 ranges, 16 live fire maneuver areas, and 2 Army airfields.
Approximately 75 percent of our acreage includes ranges, deployment and
training areas, with the remaining 25 percent dedicated to those areas
where people live, work and play. Fort Bragg is a major city, providing
approximately 28 million square feet of office buildings, 11 shopping
centers, 28 restaurants, 19 miles of railroad lines, a major medical
center, 9 schools, 11 churches, 183 recreational facilities, and
approximately 5,000 homes housing over 12,000 family members. We are a
significant economic presence in North Carolina, contributing an
estimated $4.8 billion annually to local communities. In the next 30
years, the North Carolina Office of State Planning projects the
population in the six counties surrounding Fort Bragg will grow by an
additional 269,000 people, much of it within one mile of the Fort Bragg
boundary.
By population, Fort Bragg is the largest Army installation in the
world, providing a home to almost 10 percent of the Army's active
component forces. Like many thriving organizations and communities, the
success of Fort Bragg is directly linked to the quality, dedication,
and professionalism of its people. Approximately 45,000 military and
10,000 civilian personnel work at Fort Bragg.
``Home of the Airborne and Special Operations Forces,'' Fort
Bragg's strategic response forces serve every Unified Command Combatant
Commander and are postured for no-notice worldwide deployment by air,
sea, and land; to fight on arrival and win. We maintain the Army's
premier power projection platform, capable of launching the Army's
first strike capability in 18 hours or less. In addition to the rapid
deployment force capability, Fort Bragg maintains the capability to
assemble and deploy a Joint Task Force Headquarters, deploy special
operations forces, and receive, train, and deploy crucial mobilizing
Reserve Component forces. Units located on Fort Bragg include the XVIII
Airborne Corps, Joint Special Operations Command, and the U.S. Army
Special Operations Command.
Neighboring Pope Air Force Base's operational capabilities provide
the necessary airfield facilities to simultaneously airlift divisional
and non-divisional forces, Special Operations forces, and Joint Task
Force assets during deployments. Simmons Army Airfield gives Fort Bragg
the additional capability to prepare, upload, and deploy crucial Army
aviation elements in support of our mission.
ENCROACHMENTS ON TRAINING
I would like to emphasize that we are trained, equipped, and ready
to execute our wartime contingency missions. We demonstrate our
readiness on a daily basis in worldwide deployments. The key to this is
tough realistic training. Troops perform in combat to the standard they
have been trained in peacetime. In order to ensure this, training must
replicate as close as possible the conditions (rigors, stress, and
demands) of combat. This means training conducted at night, under live
fire conditions, as part of a combined arms team.
Within our 161,000 acres, approximately 112,000 acres are used as
maneuver training land; 35,000 acres are devoted to live fire and
impact areas; and 14,000 acres are allocated to garrison cantonment or
restricted areas (buildings, roads, motor pools, etc.). In addition to
providing training to units assigned to Fort Bragg, we also provide
training to the Marine Corps, Air Force, Army Reserve, National Guard,
and Reserve Officer Training Corps units. During fiscal year 2002, Fort
Bragg conducted 1,075,776 man-days of training, which included 8853
Live Fire exercises (the keystone of our training philosophy), in
addition to 1505 Airborne operations and 157,676 aviation training
missions.
Fort Bragg recognizes its responsibility to protect the environment
and its natural resources. This is not a duty based solely on legal
compulsion; this duty is very practical. Environmental stewardship is a
necessity to preserve our land, which is, in turn, essential to our
ability to train soldiers. This is the only training land we have, and
we must protect it; however, there has to be balance in the way we go
about environmental management. Fort Bragg's goal is to strike a
reasonable balance between mission accomplishment and conservation.
This has been, and continues to be, a very difficult challenge.
Nevertheless, Fort Bragg has taken a leadership role in the North
Carolina Sandhills Region in conserving endangered species and other
natural resources. This is evidenced through our Sustainable Fort Bragg
and Sustainable Sandhills initiatives, as well as our partnership with
the Nature Conservancy and other non-governmental organizations under
the umbrella of the Private Lands Initiative to abate encroachment.
LESSONS LEARNED
In the 1990's there were several instances where major training
areas had to be closed because of directives from environmental
regulators. With the assistance of the US Fish and Wildlife Service,
Fort Bragg has turned that situation around and can now train on the
vast majority of its training lands, albeit with some limitations.
In 1990, in response to a U.S. Fish and Wildlife Service jeopardy
biological opinion, Fort Bragg limited training activities in Red-
cockaded woodpecker cluster sites to transient foot traffic, restricted
all vehicular traffic to pre-existing trails and roads, and prohibited
troops from constructing obstacles, cutting pine trees, employing
smoke, or digging in cluster sites or endangered species habitat.
Additionally, the opinion restricted all training activities within
endangered plant sites as well as within one hundred feet of wetlands.
These training restrictions degraded realistic training. Maneuver
was restricted, and units were artificially channeled to existing
trails and roads. Engineer units' earth-moving, barrier and denial and
smoke operations training were constrained.
In October 1991, to ensure continued compliance with a 1985
biological opinion, Fort Bragg's Directorate of Plans and Training
closed Ranges 63 (a $20-million multi-purpose firing range; upgraded in
1984-85) and 67 (a $1-million .50 caliber machinegun qualification
range; upgraded in 1987). Based on similar concerns, the Directorate of
Plans and Training also closed Range 78 (a $2 million aviation gunnery
range) and 50 percent of Range 79 (a $1.2-million anti-armor range).
Ten months later, the U.S. Fish and Wildlife Service issued the Coleman
biological opinion, authorizing resumption of restricted operations on
Ranges 63 and 67, and unrestricted operations on Ranges 78 and 79. The
restrictions imposed on Ranges 63 and 67, resulting in the loss of use
of two moving targets, remain in effect today. During the 10-month
training hiatus, units had to travel to other installations to conduct
their normal training at a cost of approximately $632,000.
In May 1992, as a result of further consultations with the U.S.
Fish and Wildlife Service, the Directorate of Plans and Training closed
nine of 16 lanes on Range 56 (a $1.1-million M-16 rifle qualification
range) for 24 months, and postponed the $2.3-million modernization of
Ranges 33 and 43 (both M-l6 rifle qualification ranges) for 24 months.
In January 1995, in response to the MacRidge jeopardy opinion, the
Directorate of Plans and Training closed four of 10 lanes on Range 30
(a $1.1-million complex and Fort Bragg's only automated machinegun
range). The range remained closed until the construction of backstops
to protect three cluster sites at an estimated cost of $25,000.
At this point, we had about 13,000 acres of training area severely
restricted by limitations caused by protecting critical habitat of the
Red-cockaded woodpecker. It was clear that we needed to work to reverse
this trend, and, with the assistance of the U.S. Fish and Wildlife
Service, we made progress. In 1996, the U.S. Fish and Wildlife Service
published revised management guidelines for Red-cockaded woodpecker
management. Under these guidelines, Fort Bragg was allowed to reduce
many of the training restrictions. By 2002, we had 5,364 acres where
training was significantly limited, and this was area for all five of
our endangered species. Although current training restrictions are at a
lower level, they continue to impact realism.
There is a significant cost for ecosystem management, including
rare and endangered species monitoring. Costs for these programs
include salaries, contracts, research, and partnering; however, habitat
restoration activities such as prescribed burning and pine thinning
also benefit training needs as well as the ecosystem. Salaries for
endangered species personnel ranged from $529,561 in 1995 to $601,655
in 2002. Contracts ranged from $495,004 in 1995 to $440,228 in 2002. An
additional $170,508 was spent between 1995 and 2002 for supplies and
equipment.
While reducing the size of the area where training is constrained
by environmental limitations, we have succeeded in growing our Red-
cockaded woodpecker population from 270 clusters in 1996 to 376
clusters in 2002. Our ultimate goal is to manage 401 active clusters
that would provide the necessary habitat for 350 potential breeding
pairs.
However, it must be remembered that reductions in training
restrictions are contingent upon the success of the species moving
toward recovery. Should the species start to fail, on or off Federal
lands, the previous training restrictions or more strenuous
restrictions could be imposed.
In addition to managing our five currently listed federally
endangered species, Fort Bragg remains the host for an additional 23
species that are candidates for possible future listing under the
Endangered Species Act. The listing of one or a number of these
candidate species could have a significant impact on our ability to
train to standard.
We currently meet our training goals without any significant
closures of training areas because of endangered species concerns. We
have thousands of dollars and hundreds, if not thousands, of man-hours
working with the U.S. Fish and Wildlife Service to reach our current
balance between training realism and endangered species protection. Any
additional limitations, such as those that would result from
application of Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) and Resource Conservation and Recovery Act
(RCRA) to our impact areas, or a limitation caused by the need to
protect the habitat of one or more new endangered species, would impact
our ability to achieve balance.
Our concern over the impact of any increase in environmental
constraints on training caused us to seek new approaches to maintain
the balance between being the Army's leader for training as well as its
leader for environmental stewardship. We seized the concept of regional
land use planning and the Private Lands Initiative. We recognized that
success would only come from active participation from the State and
local governments, as well as that of the private land owners. To that
end, Fort Bragg works closely with the surrounding communities, leaders
and State government toward compatible land use and conservation;
however, these are often resource intensive activities that the
installation is neither funded nor staffed to provide.
THE WAY AHEAD
The Department of Defense is seeking to develop regional
partnerships that encourage shared responsibilities for protected
species management and recovery to reduce future restrictions on
military training. Fort Bragg is a major participant in the recently
developed regional North Carolina Sandhills Conservation Partnership,
as is the Army Environmental Center, U.S. Fish and Wildlife Service,
the Nature Conservancy, State Sandhills Gamelands, and the Sandhills
Ecological Institute research organization. The challenge is to
conserve the longleaf pine ecosystem and individual species within and
meet Red-cockaded woodpecker recovery goals while ensuring Fort Bragg
can continue to effectively train troops.
To deal with the issue of urban encroachment, Fort Bragg initiated
a Joint Land Use Study (JLUS) in 1988. Bragg was the first Army
installation to do a JLUS. It was also the first time that an Army and
Air Force installation conducted a joint study. The purpose of the
study was to accommodate the growth and development of the region
without compromising the military missions of Bragg and Pope. Over
time, the JLUS perspective on encroachment has broadened to include the
impact of endangered species management on training, as well as other
environmental-related regulatory constraints.
The Joint Land Use Study mobilized Fort Bragg to aggressively
purchase key parcels contiguous to the installation to deal with urban
encroachment. Using the JLUS as our support, we began a program to buy
lands that created training constraints or might cause us to limit
training if they were used in a manner inconsistent with our nearby
training. Thanks to strong congressional support, Fort Bragg was able
to purchase the following key land parcels:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
1991................................. Longleaf Partners Tract 366 acres $ 285,000
1994................................. Williams Tract......... 884 acres 850,000
1995................................. Green Tract............ 124 acres 130,000
1995................................. McLean/Thompson........ 100 acres 1,046,530
1997................................. Overhills.............. 10,580 acres 29,400,000
TOTAL.................. 12,054 acres $31,711,530
----------------------------------------------------------------------------------------------------------------
With the purchase of the Longleaf Partners tract in 1991, Fort
Bragg now owns all of the Clear Zone on the southwest end of Mackall
Army Airfield. About 75 percent of the Accident Potential Zone 1 is
protected due to the Longleaf purchase, existing Camp Mackall acreage,
or the State-owned Sandhills Game Lands. (Camp Mackall is a sub-
installation of Fort Bragg.)
In 1994, Fort Bragg purchased the Williams tract. This purchase
provided 884 acres of buffer land on the rapidly developing northeast
part of Camp Mackall. This part of Moore County is starting to develop
into upscale golf communities and horse farms.
In 1995, Fort Bragg acquired a small tract of land through
condemnation known as the Green tract at the end of Rhine-Luzon Drop
Zone. The USAF would not certify the drop zone for jumps from the C-141
(a jet aircraft) because the first jumper had to exit the door over
this tract of privately owned land. The purchase assured us of the full
use of this drop zone by the more modern aircraft then being used by
our paratroopers. Fortunately, the land was undeveloped and Congress
was supportive of our request to acquire.
In October 1995, Fort Bragg purchased the McLean-Thompson tract.
With this purchase, we bought all of Accident Potential Zone 2 and most
of the noise contours that extended off post. An effort by the owner to
change the zoning to allow up to six homes per acre to be built in the
approach zone to the runway triggered the effort to purchase. Multiple
attempts to modify the residential density at the zoning commission and
before the City Council were unsuccessful. Consequently, the necessary
actions were taken to purchase the land and ensure the viability of the
airfield.
In January 1997, with the purchase of the Rockefeller or Overhills
tract, Fort Bragg obtained some of the land that falls in Accident
Potential Zone 2 for Pope Air Force Base, as well as land that falls
under Pope noise contours. This 10,580-acre tract will help serve as a
major buffer against urban encroachment. It already serves as a noise
abatement flight track corridor for Pope Air Force Base. A noise
abatement flight track corridor involves routing arrival and departure
patterns over the least sensitive land use areas, such as open space
corridors, instead of over housing.
In the fall of 2001, Bragg and Pope began a major update of the
earlier Joint Land Use Study. The update is being performed under the
auspices of the Fort Bragg/Pope Air Force Base Regional Land Use
Advisory Commission (RLUAC). The RLUAC is a State-chartered regional
body whose voting members are local elected officials, land planning
professionals, State planning officials, and local and State officials
with an interest in economic development. Army, Air Force and DoD
personnel participate in the activities of the RLUAC, but as non-voting
ex officio members.
The RLUAC is currently in the process of reviewing the draft report
containing recommendations for the region. One of the remarkable
benefits of the study is the excellent quality Geographic Information
System (GIS) mapping that has already been delivered. With the
sophisticated GIS mapping of the region, it is possible to see exactly
where the encroachment problem areas are, see exactly which parcels are
affected by noise and aircraft safety/accident issues, and enable the
development of concrete strategies for dealing with the encroachment.
Through intelligent use of the data that will be captured by the JLUS
Report, Fort Bragg hopes to avoid future encroachment on training
activities by adjacent inconsistent land uses, such as those that
increase the environmental compliance burden or limit full military use
of training areas because of development along the installation's
boundaries.
Fort Bragg did not always take a regional perspective to training
limitations and, as a result, have lost the use of some training areas.
For example, as the direct result of urban development which has been
permitted to expand in Hoke County near Fort Bragg's Sainte Mere Eglise
Drop Zone, the Army has been forced to drastically curtail its training
activities in the area. This was an example where Fort Bragg did not
foresee the effects and did not purchase key land as a buffer. Prior to
the creation of the residential neighborhoods, Ste Mere Eglise was used
for heavy equipment drops from C-130 cargo planes. A very large
subdivision of modular homes was built so close to the boundary and
adjacent drop zone that the ``Home of the Airborne'' has essentially
had to give up a large part of the airborne training that used to be
conducted on this drop zone. Heavy equipment drops must now take place
at more remote locations on the installation.
For well over a decade, efforts have been made to raise the
public's awareness of endangered plant and animal species located
within the Sandhills region of North Carolina which are being
threatened by urban development pressures. The initial protection
efforts focused on a single animal species--the Red-cockaded
woodpecker; however, a more holistic approach has emerged over time
which seeks to identify and protect North Carolina's endangered
``Longleaf Pine'' ecosystem as well.
Fort Bragg, as a Federal agency, bears a responsibility for
recovering the listed endangered species and in preserving the
ecosystem they require to survive. However, in 1994 Fort Bragg began a
major effort which seeks to share the responsibility for management and
protection with other regional stakeholders through the Private Lands
Initiative. This effort, which led to the formation of the North
Carolina Sandhills Conservation Partnership, has been successful in
developing a coordinated approach to the issue.
As previously mentioned, the Sandhill's Partnership mission is to
coordinate the development and implementation of conservation
strategies for the Red-cockaded woodpecker, other native biota,
longleaf pine and other ecosystems in the Sandhills of North Carolina
compatible with the land use objectives of the partners. Working with
its partners, the Sandhills Partnership has been successful in
acquiring, through acquisition or conservation easement, approximately
5,800 acres of key land for conservation purposes in the areas
surrounding Fort Bragg in a program called the Private Lands
Initiative. However, unlike Fort Bragg's land acquisitions of the
1990's, acquisitions by the Sandhills Partnership do not remove the
land from the tax base. Again with the support of Congress, the
following tracts have been acquired:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Horse Creek................................................... 549 acres $ 1,875,000
Quewhiffle Creek.............................................. 243 acres 436,608
Parsons....................................................... 333 acres 750,000
Carvers Creek................................................. 1,172 acres 5,276,430
Calloway...................................................... 2,400 acres 5,300,000
Breeden....................................................... 100 acres 297,500
Upchurch...................................................... 980 acres 100,000
TOTAL..................................................... 5,777 acres $14,035,538
----------------------------------------------------------------------------------------------------------------
CONCLUSION
Fort Bragg remains committed to its responsibility as an
environmental steward. However, we are also committed to providing the
most realistic training possible to our soldiers since only through
tough realistic training can we assure their success and their safety.
Although Fort Bragg continues to make progress and provide leadership,
we believe that the listing of additional species or the implementation
of new regulations or guidelines will significantly impact our ability
to train.
Right now, Fort Bragg is at the wall. We can continue to provide
realistic training; however, each day we are becoming more limited by
the constraints imposed through incompatible adjacent land use
practices that encroach on training and by other constraints caused by
environmental compliance requirements.
We must act now to marshal the necessary resources to obtain
requisite buffer zones designed to mitigate further incompatible
development along the installation's boundaries. Further, we must
continue to pursue the Private Lands initiative and work toward the
preservation of the Sandhills ecosystem, which in turn supports
military training, readiness, and ultimately preserves our national
security.
Thank you, Mr. Chairman and distinguished members of the committee
for allowing me to present this testimony.
__________
Statement of Rear Admiral Jonathan W. Greenert, United States Navy,
Deputy Commander, United States Pacific Fleet
Introduction
Chairman Inhofe, Senator Jeffords, and members of the committee,
thank you for this opportunity to share my views regarding the growing
negative effects of encroachment on military readiness and training of
our American Sailors as they prepare for combat. I appreciate your
attention to this vital and timely topic, which is of great importance
to national security and the environment.
THE U.S. PACIFIC FLEET
The mission of Commander, U.S. Pacific Fleet, is to support the
U.S. Pacific Command's (USPACOM's) theater strategy, and to provide
interoperable, trained and combat-ready naval forces to USPACOM and
other U.S. unified commanders. The U.S. Pacific Fleet area of
responsibility (AOR) covers more than 50 percent of the earth' surface,
encompassing just over 100 million square miles. Each day, Pacific
Fleet ships are at sea in the Arabian Gulf, and the Pacific, Indian,
and Arctic Oceans. Our AOR extends from the west coast of the U.S. to
India. The Pacific Fleet is made up of approximately 200 ships, 1,500
aircraft and 250,000 Sailors, Marines and Civilians. Together they keep
the sea-lanes open, deter aggression, provide regional stability, and
support humanitarian relief activities.
The high quality of training we provide to these Sailors is perhaps
unseen, yet it is an essential element of their impressive level of
combat readiness. Clearly, before this nation sends its most precious
asset-its young men and women-into harms way, we must be uncompromising
in our obligation to prepare them to fight, survive, and win. This
demands the most realistic and comprehensive training we can provide.
Realistic, demanding training has proven key to survival in combat
time and again. For example, data from World Wars I and II indicates
that aviators who survive their first five combat engagements are
likely to survive the war. Similarly, realistic training greatly
increases our combat effectiveness. The ratio of enemy aircraft shot
down by U.S. aircraft in Vietnam improved to 13-to-1 from less than 1-
to-1 after the Navy established its Fighter Weapons School, popularly
known as TOPGUN. More recent data shows aircrews that receive realistic
training in the delivery of precision-guided munitions have twice the
hit-to-miss ratio as those who do not receive such training.
Similar training demands also exist at sea. New ultra-quiet diesel-
electric submarines armed with deadly torpedoes and cruise missiles are
proliferating widely. New technologies such as these could
significantly threaten our Fleet as we deploy around the world to
assure access for joint forces, project power from the sea, and
maintain open sea-lanes for trade. To successfully defend against such
threats, our Sailors must train realistically with the latest
technology, including next-generation passive and active sonars.
As we prepare for possible conflict today and look to the future,
we should be concerned about the growing challenges in our ability to
ensure our forces receive the necessary training with the weapon and
sensor systems they will employ in combat. Training and testing on our
ranges is increasingly constrained by encroachment that reduces the
number of training days, detracts from training realism, causes
temporary or permanent loss of range access, decreases scheduling, and
drives up costs.
Encroachment issues have increased significantly over the past
three decades. Training areas that were originally located in isolated
areas are today surrounded by recreational facilities and urban sprawl
and constrained by State and Federal environmental laws and regulations
and cumbersome permitting processes which negatively impact our ability
to train.
NAVY'S ENVIRONMENTAL STEWARDSHIP
The Navy continues its commitment to good stewardship of the
environment. Indeed, our culture reflects this, as the men and women
manning our fleet were raised in a generation with a keen awareness of
environmental issues. The Navy environmental budget request for fiscal
year 2004 totals $1.0 billion. This funding supports environmental
compliance and conservation, pollution prevention, environmental
research, the development of new technologies, and environmental
cleanup at Active and Reserve bases. It is precisely as a result of
this stewardship that military lands present favorable habitats for
plants and wildlife, including many protected species. Ironically, our
successful stewardship programs have helped increase the number of
protected species on our ranges, which has resulted in less training
capacity.
BALANCING MILITARY READINESS AND THE ENVIRONMENT
Sustaining military readiness today has become increasingly
difficult because, over time, a number of factors, including urban
sprawl, regulations, litigation, and our own accommodations to demands
from courts, regulatory agencies and special interest groups have
cumulatively diminished the Navy's ability to effectively train and
test systems. Among the greatest threats to proper military training
are laws that include ambiguous provisions and cumbersome process
requirements that result in unintended negative consequences, which
inhibit realistic, timely and comprehensive training. These laws, and
the court decisions which have interpreted and expanded them, have
resulted in Federal courts and regulatory agencies curtailing essential
training despite the ``best available science'' supportive of the
Navy's ability to train without harm to the environment. As a result,
military readiness requirements and environmental protection are out of
balance.
The Department of Defense's Readiness and Range Preservation
Initiative (RRPI) proposes modest amendments to several environmental
laws which will help restore the balance, meeting our national security
needs and maintaining good stewardship of the environment. I ask for
your help to address the challenges of most concern to the Navy in the
Marine Mammal Protection Act (MMPA) and the Endangered Species Act
(ESA).
MARINE MAMMAL PROTECTION ACT
Last year before the Senate Environment and Public Works Committee,
the VCNO testified that the definition of the term ``harassment'' of
marine mammals in the MMPA was a source of confusion because the
definition is tied to vague and ambiguous terms such as ``annoyance''
and ``potential to disturb.'' These terms arguably apply to even the
slightest changes in marine mammal behavior and subject Navy training
and testing at sea to the scrutiny and control of courts, regulatory
agencies and special interests groups, even in the absence of evidence
of adverse impacts on the marine mammals. The severity of the impact on
Navy training and testing is strikingly more apparent now.
In November 2002, a Federal district judge in San Francisco
presiding over a case brought by environmental groups alleging
violation of the MMPA, National Environmental Policy Act (NEPA), and
the Endangered Species Act issued a preliminary injunction that limits
employment of the Surveillance Towed Array Sensor System Low Frequency
Active (SURTASS LFA) sonar system. This advanced system is designed to
detect and track the growing number of quiet diesel submarines
possessed by nations, which could threaten our vital national security.
After highlighting flaws in regulatory agency implementation of the
MMPA and ESA, the court issued a preliminary injunction restricting
Navy's deployment of SURTASS LFA to a limited area in the western
Pacific. Navy now finds the deployment and operation of one of our most
important national security assets constrained by a Federal court as a
result of litigation brought by environmental groups specifically
designed to deny Navy use of the system. Future testing and employment
of SURTASS LFA could be adversely affected. The MMPA was originally
enacted to protect whales from commercial exploitation and to prevent
dolphins and other marine mammals from accidental death or injury
during commercial fishing operations. Military readiness concerns were
not raised at the time of its enactment.
As a result of the preliminary injunction issued by the Federal
district court, our ability to test and train with LFA in the waters in
which it will need to be employed could be compromised. SURTASS LFA is
a critical part of anti-submarine warfare (ASW). The Chief of Naval
Operations has stated that ASW is an essential and core capability of
the Navy. Testing and training with LFA is essential to our future
success. By way of comparison, during the cold war we made every effort
to search, detect, and track Soviet nuclear submarines. In so doing, we
learned their habits, went to school on their operational procedures,
and worked hard to stay ahead of them. Today the nature of the
submarine threat has changed. The challenge is different. Nevertheless,
the preliminary injunction on testing and training with LFA issued by
the Federal district court has limited our ability to do prepare for
this challenge.
The Current Quiet Diesel Submarine Threat
As we enter the 21st century, the global submarine threat is
becoming increasingly more diverse, regional, and challenging. The
Russian Federation and the People's Republic of China have demonstrated
that the submarine is a centerpiece of their respective navies.
Published naval strategies and current operations of potential
adversaries, including Iran and North Korea, have demonstrated the same
strategic doctrine. Diesel submarines are deemed a cost-effective
platform for the delivery of several types of weapons, including
torpedoes, anti-ship cruise missiles, anti-ship mines and nuclear
weapons. Potential adversary nations are investing heavily in submarine
technology. In addition to the United States, Australia, Canada, and
the United Kingdom, 41 other countries, including China, North Korea,
and Iran, have modern quiet diesel submarines. Of the 380 submarines
owned by these 41 countries, more than 300 are quiet diesel submarines.
Submarine quieting technology continues to proliferate, making
submarines, operating in their quietest mode, difficult to detect even
with the most capable passive sonar. The inability to detect a hostile
submarine at long-range--in other words, at a sufficient ``stand-off''
distance before it can launch a missile or a torpedo--is a critical
vulnerability that puts ships and our Sailors at risk. The threat of a
quiet diesel submarine, in certain circumstances, could deny access to
vital operational areas to U.S. or coalition naval forces. These
threats to our Navy are a reality that the U.S. Pacific Fleet must
consider as it carries out its responsibility to be able to conduct
theater warfare in the Pacific Fleet.
Because of these threats, Navy identified the requirement to detect
hostile submarines before they are close enough to use weapons. The
most promising and best available technology to reliably meet this
requirement is SURTASS LFA. This capability is particularly critical
where there exists a concentration of forces at sea, as recently
occurred in the Sea of Japan for exercise Foal Eagle, or as is planned
in support of Operational and Contingency Plans in the vicinity of
Northeast Asia. When it becomes necessary to place carrier battle
groups or amphibious task forces in harms way, these valuable national
assets, their supporting ships and their crews have to transit
constricted bodies of water or straits. These limited areas provide the
perfect opportunity for quiet diesel submarines to stalk our ships. A
pre-positioned diesel submarine, conducting a quiet patrol on battery
power, is extremely difficult to detect with passive sonar. The most
promising system to counter this threat to Navy and national security
is SURTASS LFA. To be effective, SURTASS LFA must be tested and
evaluated for integration into the Fleet. It is not effective to be
kept ``on the shelf'' in the event our forces need to use it in a real
contingency.
Comprehensive Environmental Analysis
In meeting its obligations under current environmental laws for
deploying SURTASS LFA, the Navy undertook a comprehensive and
exhaustive environmental planning and associated scientific research
effort. Working cooperatively with the National Marine Fisheries
Service (NMFS)--the Federal regulatory agency tasked with protection
and preservation of marine mammals--the Navy completed an Environmental
Impact Statement (EIS), developed mitigation measures for protecting
the environment, and obtained all required permits pursuant to the MMPA
and ESA. The scientific research and EIS involved extensive
participation by independent scientists from a large number of
laboratories and academic organizations. The Navy also undertook a
wide-ranging effort to involve the public in the EIS process through an
unprecedented program of public meetings and outreach for the Navy.
Based on this effort, NMFS concluded that the planned SURTASS LFA
operations would have negligible impacts on marine mammals.
EIS Outreach
<bullet> Notice of Intent published in 1996
<bullet> 3 public scoping meetings
<bullet> 8 public outreach meetings
<bullet> 3 public hearings on the Draft EIS (DEIS)
<bullet> DEIS distributed to Federal, State and local government
agencies, citizen groups and organizations, and 17 public libraries
<bullet> Over 1,000 public comments received on DEIS
<bullet> Record of Decision signed in June 2002
Despite plaintiffs' failure to produce scientific evidence
contradicting the independent scientific research that the LFA system
could be operated with negligible harm to marine mammals, the court
opined that Navy testing and training must be restricted. In reaching
this conclusion, the court noted that under the definition of
harassment, the phrase ``potential to disturb'' hinged on the word
``potential'' and extended to individual animals. The court stated,
``In fact, by focusing on potential harassment, the statute appears to
consider all the animals in a population to be harassed if there is the
potential for the act to disturb the behavior patterns of the most
sensitive individual in the group.'' (Emphasis added.) Interpreting the
law this broadly could require authorization (permits) for harassment
of potentially hundreds, if not thousands, of marine mammals based on
the benign behavioral responses of one or two of the most sensitive
animals.
Highlighting how difficult it would be to apply the MMPA to
worldwide military readiness activities under such a broad
interpretation of harassment, the court pointed out that a separate
structural flaw in the MMPA limits permits for harassment to no more
than a ``small number'' of marine mammals. Overturning the regulatory
agency's decades-old interpretation of the MMPA, the court also said
that the ``small number'' of animals affected cannot be defined in
terms of whether there would be negligible impact on the species, but
rather the court's opinion suggests that the term must be interpreted
as an absolute number that must be determined to be ``small.'' The
court's opinion underscores shortcomings in the MMPA that apply to any
worldwide military readiness activity, or any grouping of military
training activities that might be submitted for an overall review of
impact on the environment.
In addition to the decision to restrict deployment of the SURTASS
LFA system, two other recent decisions by different Federal district
courts have stopped scientific research due to concerns about acoustic
impacts to marine mammals. In one case, the court enjoined seismic air
gun research on geological fault lines conducted by the National
Science Foundation off the coast of Mexico based on the court's concern
that the research might be harming marine mammals in violation of the
MMPA and NEPA. In another case, a court enjoined a Navy funded research
project proposed by the Woods Hole Oceanographic Institute designed to
study the effectiveness of a high frequency detection sonar in
detecting migratory Grey Whales off the coast of California.
To address these issues, I ask for your consideration of the
narrowly focused amendments to the MMPA proposed in the fiscal year
2004 National Defense Authorization Act, which has now been transmitted
by the President to Congress.
ENDANGERED SPECIES ACT (ESA)
Negative impacts on military readiness activities have also
resulted from the ESA. For example, the designation of land used for
military training as critical habitat under the ESA can undermine the
primary purpose for which these lands were set aside. Federal courts
have held that critical habitat is intended not only as a safe haven
for species survival, but also as a cradle for species recovery-even if
the species is not currently present on the land. Under the ESA,
Federal agencies are required to ensure that their activities do not
adversely modify designated habitats. Hence designation as critical
habitat can drastically limit land uses by placing inflexible
restrictions on land that has been dedicated by our nation to maintain
military readiness.
Guam
In some cases, the challenge of critical habitat designation has
become an issue even when the relevant endangered species are not
currently present. Under litigation pressure brought by environmental
groups in Federal court, the Government is considering whether it is
necessary under the law to designate part of Guam as critical habitat
for the Mariana Crow, Mariana Kingfisher, and Mariana Fruit Bat. Guam
is the headquarters of Commander, Naval Forces Marianas (COMNAVMAR).
Guam is a critical, forward deployed facility providing essential
logistical and training support to our Fleet. This critical habitat
designation proposal covers roughly 7,500 of the 8,840 acres that
comprise the Naval Ordnance Annex. This Navy land is currently used as
magazines for forward deployed ordnance storage, jungle training areas
(special operations forces), and low-level aviation training areas by
all military services. Neither the crow nor kingfisher currently lives
on the land. Designation would have substantial adverse consequences on
the Navy, and should be avoidable, given that the Navy and the U.S.
Fish and Wildlife Service in 1994 entered into a Cooperative Agreement
to establish the Guam National Wildlife Refuge. This 22,426-acre Refuge
was created in lieu of a previously proposed critical habitat
designation involving the same three species and covers 12,237 acres of
Navy lands.
The proposal under consideration calls into question what is meant
by ``special management consideration'' under the ESA. Under the Act's
present wording, if no special management considerations are needed
because of other conservation plans or measures then the designation of
critical habitat should be unnecessary. Both the Guam National Wildlife
Refuge and the COMNAVMAR Installation and Natural Resource Management
Plan for the Ordnance Annex could provide such special management
considerations for the species' habitats. Accordingly, designation of
critical habitat should not be necessary.
Pacific Missile Range Facility (PMRF)
In February 2003, USFWS designated 177 acres of PMRF, Hawaii as
critical habitat for a species of grass. PMRF is a long, relatively
narrow strip of land on Kauai, critical to the testing and evaluation
of weapons, and capable of supporting a broad range of training and
testing, including amphibious landings and Missile Defense Agency
efforts to rapidly achieve an operational ballistic missile defense
capability. This designation, like several of those proposed on Guam,
was made because the habitat provides a suitable base for the recovery
of the species. Thus, we not only facing the requirements of critical
habitat per se, but the added responsibilities and restrictions
associated with the reintroduction of the species on the facility
The Administration has proposed a legislative solution to this
challenge that would rely on Integrated Natural Resource Management
Plans (INRMPs) in lieu of designating critical habitat. DoD is already
obligated to develop INRMPs for lands under military control. INRMPs
address management of natural resources in the context of the missions
for which the lands were placed under control of the military services.
INRMPs are prepared in cooperation with the USFWS and State agencies,
and these agencies recommend ways for DoD installations to better
provide for species conservation and recovery. In addition, the
legislative proposal does not remove the requirement for agency
consultations under the Endangered Species Act.
There are examples that indicate that INRMPs are an effective tool
for protecting the environment. For example, at Naval Amphibious Base
Coronado, the Navy is spending about $720,000 per year on conservation
and management programs for the Western Snowy Plover and Least Tern,
endangered birds that nest in that area. That effort has successfully
increased the number of Least Tern nests from 187 to 825 (over 4 times
as many in 9 years) and the number of Western Snowy Plover nests from 7
to 99 (nearly 14 times as many in 9 years). Similar good environmental
stewardship by the Navy has been demonstrated at Vieques Island, Puerto
Rico, where over 17,000 sea turtle eggs have been incubated and
returned to the environment during a 10-year program. Vieques is only
one part of a Navy-wide sea-turtle conservation effort in which we
invest about $1 million a year.
Adopting this recommended change would better balance training
needs with the protection of threatened or endangered species. Changing
the law to establish clearly that an approved INRMP provides sufficient
species protection--rather than designating more and more military land
as critical habitats--would help retain balance of Services' training
needs and endangered species protection.
SUMMARY
We face numerous challenges and adversaries that threaten our way
of life. The President has directed us to ``be ready'' to face this
challenge. To fulfill this directive, we must conduct comprehensive and
realistic combat training--providing our Sailors with the experience
and proficiency to carry out their missions. This requires appropriate
use of our training ranges and operating areas and testing weapon
systems. The Navy has demonstrated stewardship of our natural
resources. We will continue to promote the health of lands entrusted to
our care. We recognize our responsibility to the Nation in both of
these areas and seek your assistance in balancing these two
requirements.
I thank the committee for your continued strong support of our Navy
and I ask for your consideration of the RRPI legislation. Passage of
RRPI will help the Services sustain military readiness today in this
time of war and in the future. It will also support our on-going
efforts at environmental conservation. Achieving the best balance of
these national imperatives is in the interests of all Americans, and
your Navy is committed to achieving these goals.
__________
Statement of Colonel Frank C. DiGiovanni, Chief, Ranges, Airfields and
Airspace Operations and Requirements Division, Air Combat Command,
United States Air Force
Introduction
Mr. Chairman, members of the committee, I greatly appreciate the
opportunity to address you today on the Readiness and Range
Preservation Initiative (RRPI) and the potential benefits it offers to
our ability to train if it were enacted into law.
I'd like to start off by giving you a bit of my background. I have
over 2000 hours in the B-52H, the F-15A and A-37B (close air support)
aircraft and have almost 11 years of experience in the range community.
I commanded the 99th Range Support Squadron at Nellis Air Force Base
which is responsible for the management of the 3.1 million acre Nevada
Test and Training Range. I also worked combat training range equipment
requirements at the major command level and range policy at the HQ Air
Force level. I currently serve as the Chief of Ranges, Airfields and
Airspace Operations and Requirements Division at Headquarters Air
Combat Command (ACC).
Our ranges and training airspace are critical national assets that
allow the Air Combat Command to develop new tactics and train our air
forces to be lethal and survivable. At a time when increased OPSTEMPO,
aging equipment, and personnel challenges are threatening our
readiness, it is critical we have to the maximum extent possible,
unencumbered use of these valuable resources to prepare our warfighters
for combat operations.
The loss or restricted use of ranges and operating areas forces us
to find workarounds or to delay and reschedule needed training. These
constraints inhibit our ability to test and train realistically and
degrade our combat readiness. As pressures due to encroachment continue
to grow, managing the operational and financial risks without
compromising our mission will become increasingly difficult.
The Air Combat Command, in partnership with our counterparts in the
other Services and the community, is committed to addressing these
challenges. We are confident in our ability to provide the necessary
balance between operational needs, environmental protection and the
needs of the community and RRPI will help us do that.
The Readiness and Range Preservation Initiative will provide
changes to specific environmental statutes needed by the military
services and protect access to our training resources while continuing
to protect the environmental resources of the lands entrusted to us by
the public.
Species and Habitat Protection
The critical habitat clarification of RRPI is a very important
component of this initiative. We have over 25 Federal listed threatened
and endangered species and 64 species of concern on approximately 4.5
million acres of ACC rangeland. My Division is composed of an
interdisciplinary team of aviators, PhD biologists, civil engineers, a
public affairs officer, airspace managers and an environmental attorney
all charged with the objective of maximizing the use of the ranges we
manage while protecting the priceless natural and cultural resources
that we have on our ranges.. Additionally, ACC ranges employ nearly 50
full-time natural and cultural resource management personnel throughout
the command who assist the headquarters with this charter. We also
consult extensively with U.S. Fish and Wildlife Service (FWS) and the
State game and fish agencies on the development and implementation of
our Integrated Natural Resource Management Plans. We ensure that these
plans incorporate the best available science and credentialed expertise
to minimize the impacts of our training operations.
Through the use of Integrated Natural Resource Management Plans, in
partnership with the Department of Interior, we have had great success
in managing the lands entrusted to us by the public. For example, the
Nevada Test and Training Range supports the Bureau of Land Management's
wild horse program on 390,000 acres of the NTTR. In the southern
portion of the range we have fenced target areas to ensure the
endangered desert tortoise is not adversely affected by our operations.
On the Barry M. Goldwater Range (BMGR) in Arizona, which is used
extensively by ACC A-10 aircraft, Luke Air Force Base personnel
assigned to the Air Education and Training Command track the movement
of Sonoran pronghorn on the range. The DoD flies about 70,000 sorties
yearly on the BMGR, and our biologists monitor the target areas for
pronghorn movements. If any are spotted within a 2-hour period prior to
bombing, the live missions projected for that area are diverted or
canceled. Working hand-in-hand with the U.S. Fish and Wildlife Service
(FWS) and the Arizona Department of Game and Fish, we strive to ensure
the survival of this endangered subspecies of Pronghorn.
We are constantly upgrading and reconfiguring our ranges. For
example, just prior to OPERATION ENDURING FREEDOM, both the NTTR and
the Utah Test and Training Range (UTTR) constructed simulated cave
targets similar to those in use by the Taliban and Al Queda. These
realistic target simulations were used to provide our warfighters with
critical, mission rehearsal training, thereby improving their lethality
in combat. These skills proved very valuable during our attacks on
Taliban and Al Queda strongholds.
We would not have had the required flexibility to conduct this
essential training on NTTR and UTTR if we had designated critical
habitat for the desert tortoise or other species in and around the
simulated cave targets. This is because the time required to prepare
biological assessments and complete consultations with FWS would not
have been sufficient given the quickness in which wartime operations
were commenced after 9/11.
Given these examples, superimposing critical habitat designation on
top of our integrated management plans does not appear to provide added
benefit to T&E species. However, a critical habitat designation, would
have an adverse impact on our ability to quickly adapt and reconfigure
the training environment to respond to evolving real world combat
situations.
Range Residue Removal
As a range manager, the clarifications proposed in the RRPI
regarding military munitions are also critically important to me. Most
of the weapons we drop on our ranges are training munitions, either
wholly inert or with a spotting charge. We maintain our ranges by
periodically clearing off all these items, demilitarizing them, then
sending the metals off to steel mills for recycling or to permitted
landfills.
The RRPI will mirror the existing Military Munitions Rule by
clarifying that munitions used for their intended purpose--dropped on
an operational range-will not be considered a hazardous waste under the
Resource Conservation and Recovery Act (RCRA) nor a release under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA). This would allow us to manage our ranges safely, responsibly
and cost effectively while protecting the environment and the public.
ACC has instituted a command-wide, range residue removal regime in
which we invest approximately $4 M annually. This regime consists of a
four-step process. First our explosive ordnance disposal experts and
range operations and maintenance contractors clear the munitions and
residue from the range target areas. Unexploded items are rendered safe
and inert items are consolidated at a holding area on the range.
Second, the munitions and residue are demilitarized by shearing or
crushing with specialized equipment and then are certified free of
energetic material. Next a ``third party'' explosive ordnance disposal
expert validates the first certification. Fourth and finally, a
government quality assurance inspector oversees the entire operation.
In the five and half years since ACC instituted this program, we have
had zero mishaps or environmental violations and have successfully
removed an estimated 79 million pounds of residue from our ranges.
If these materials were considered hazardous waste then we would
not be able to conduct these operations without cost-prohibitive
permits and infrastructure. Securing these permits and building the
infrastructure would not add any additional environmental protection.
RRPI does confirm that, in the rare instance, that any munitions or
munitions constituents land or travel off-range, that they would be
regulated under the Comprehensive Environmental Restoration,
Compensation and Liability Act (CERCLA). If munitions-related-material
moves off the range, it still must be addressed promptly under existing
environmental laws. Moreover, if munitions cause an imminent and
substantial endangerment on-range, EPA would retain authority to
address it on range under CERCLA.
These clarifications would allow us to conduct realistic, cost
effective training on our operational ranges yet continue to be good
stewards of the lands entrusted to us.
Summary
Military training ranges are protected lands and vital national
resources. Each range typically has small impact areas where munitions
are employed, surrounded by large safety buffers where wildlife thrives
in relatively undisturbed natural habitat. In fact, our ranges have
been frequently described as ``islands of biodiversity''. By closely
managing these areas, in cooperation with the FWS and the State game
and fish agencies, we are ensuring that our training activities are
compatible with the continued existence of these species.
Conclusion
The Readiness and Range Preservation Initiative will provide needed
clarification to specific environmental statutes and protect access to
our training resources while continuing to protect the environmental
resources of the lands entrusted to us by the public.
As we speak, the men and women of Air Combat Command are risking
their lives over southwest Asia as part of our nation's global war on
terrorism. Coalition air forces successes are due in large measure to
the high fidelity training enabled by access to these tremendous
national resources. These assets ensure our national defense by
allowing these brave airmen go into combat with the unique confidence
that they are the finest trained Air Force in the world. This essential
confidence exists because of a continuing commitment by the U.S.
Government and the people of this country to provide the very best
training resources to our warfighters. We believe that the provisions
of the Readiness and Range Preservation Initiative will help us to
continue to provide our airmen the training environment needed to
ensure their lethality and survivability when prosecuting our national
military objectives in the future.
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stappa/alapco
March 12, 2003.
The Honorable Duncan Hunter. Chairman,
Armed Services Committee,
U.S. House of Representatives,
2120 Rayburn House Office Building,
Washington, DC 20515.
The Honorable Ike Skelton, Ranking Member,
Armed Services Committee,
U.S. House of Representatives,
2120 Rayburn House Office Building,
Washington, DC 20515.
Dear Congressmen Hunter and Skelton: On behalf of the State and
Territorial Air Pollution Program Administrators (STAPPA) and the
Association of Local Air Pollution Control Officials (ALAPCO), the two
national associations of State and local air pollution control
officials in 54 States and territories and more than 165 major
metropolitan areas across the country, we write to you today to express
concerns regarding potential changes to Clean Air Act (CAA) provisions
as they relate to activities of the U.S. Department of Defense (DOD),
and to urge against such potential changes during upcoming debate over
the ``National Defense Authorization Act for Fiscal Year 2004.''
As part of your committee's deliberations over this bill,
amendments to various environmental and public health statutes will be
considered. We understand that there will be a hearing on such proposed
amendments in your committee tomorrow. These amendments, which were
based on recommendations by DOD, would provide broad statutory
exemptions for purposes of military readiness, including sweeping
exemptions from the CAA. Our associations opposed these CAA exemptions
when they were proposed last year and we are writing again now to
oppose them just as forcefully. We are pleased that Congress rejected
adoption of the CAA exemptions last year and we urge you to do so again
this year.
STAPPA and ALAPCO believe that the proposed CAA exemptions are
unwarranted and will impede local, State and Federal efforts to attain
and maintain health-based National Ambient Air Quality Standards
(NAAQS) and deliver healthful air to our citizens. Such exemptions
would also interfere with our efforts to protect air quality in
national parks and other important ecosystems. Section 2018 of the bill
exempts air pollution caused by military readiness activities from
State and Federal implementation plans designed to meet the health-
based NAAQS. For nonattainment areas, the exemption would last for 3
years, while for attainment and unclassifiable areas, the exemption
appears to be permanent.
These exemptions would allow military readiness activities, alone
among air pollution activities that our members regulate, to cause or
contribute to violations of health-based NAAQS, increase the frequency
or severity of such violations or delay timely attainment of the
standards or interim milestones. Further, the bill's response to these
sweeping exemptions is to allow EPA to approve areas as being in
attainment with the ozone, carbon monoxide and PM<INF>10</INF> air
quality standards--even when those areas in fact are not in attainment
with those standards--if the area would be in attainment but for air
pollution from military readiness activities.
We believe these exemptions and the bill's response are unjustified
and would improperly compromise the CAA's mission and the
responsibilities of State and local officials to protect public health
and safeguard air quality. We oppose any approach that would undermine
the integrity of health-based air quality standards by designating air
quality to be healthy when it is not. Moreover, this approach would
impose inequitable burdens upon the industries we regulate, as well as
on the public. State and local air pollution control officials will
still feel the responsibility to deliver truly healthful air to the
public we serve and, therefore, we will have no choice but to call upon
other sectors in order to obtain the emission reductions we can no
longer secure from military facilities.
In addition, STAPPA and ALAPCO believe that such exemptions are
unnecessary, in that the CAA already provides DOD ample flexibility to
carry out its duties. Under Section 118 of the CAA, the President may
exempt DOD from any requirements of the Act upon finding that it is of
``paramount interest of the United States to do so.'' Further, the
Federal regulations implementing the CAA's ``general conformity''
provisions from which DOD specifically seeks exemption also allow DOD
to suspend compliance in the case of emergencies (which, by definition,
include terrorist activities and military mobilizations) and,
additionally, permit DOD to conduct routine movement of material,
personnel and mobile assets, such as ships and aircraft, provided no
new support facilities are constructed.
In light of the broad statutory and regulatory flexibilities
already provided, we do not believe that additional CAA exemptions are
necessary in order for DOD to conduct military readiness activities.
Further, we believe the CAA exemptions sought by DOD would,
essentially, serve only to allow routine, non-emergency activities that
require the construction of additional support facilities to skirt
important environmental requirements. The significant adverse air
quality impacts that could result from such exemptions could
unnecessarily place the health of our nation's citizens at risk.
STAPPA and ALAPCO urge you and your colleagues to reject actions to
exempt DOD from CAA requirements. If, however, such actions are to be
further pursued, we respectfully request that Congress allow for full
participation by all interested parties, including State and local air
pollution control officials, and that other congressional committees
with jurisdiction over CAA issues also be included.
If you have any questions, or if STAPPA and ALAPCO can provide any
further information, please do not hesitate to contact either of us or
STAPPA/ALAPCO Executive Director S. William Becker at (202) 624-7864.
Sincerely,
Lloyd L. Eagan,
STAPPA President.
Ellen Garvey,
ALAPCO President.