2000 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: Fri, 2 Jun 2000 16:50:25 -0700 (PDT)
Reply: cpeo-military
Subject: [CPEO-MEF] Urgent sign-on letter opposing Section 342

Faith Weiss of the Natural Resources Defense Council is urgently seeking
sign-ons to a letter to members of the U.S. Senate opposing Section 342
of the National Defense Authorization Bill, prohibiting the Defense
Department from paying environmental fines and penalties without
specific Congressional approval.

If you wish to sign, please supply the name of your group, the name of
your group's representative and title, and the size of your membership
to Faith at 202/289-2391 or <FWeiss@nrdc.org> by START OF BUSINESS (DC
TIME) TUESDAY morning, June 6. Senate action on the bill may take place
as soon as Tuesday.

draft version Friday afternoon, June 2, and we have made some
corrections that the originators of the letter have not had the
opportunity to review. We will post the final version on Monday, June 5.
The basic arguments are not likely to change.

If your group is unable to take action on the letter by Tuesday morning,
please get endorsements to Faith as soon as possible. Even in the Senate
approves Section 342, the bill still must go to Conference Committee.
The House has no such provision in its bill.


June 2, 2000

Dear ______: 

On behalf of our members throughout the United States, we urge you to
oppose an extremely damaging legislative provision included in the
Senate Committee version of the National Defense Authorization Bill for
fiscal year 2001 (S. 2549). Similar to an anti-environmental rider
(section 8149) contained in the FY 2000 Department of Defense (DOD)
Appropriations bill, this provision delays and could even block DOD from
having to pay civil penalties for environmental violations occurring at
DOD facilities. We strongly urge you to support any efforts to remove
this provision from the authorization bill this year.

Section 342 of the authorization bill would require specific
congressional authorization for the payment of environmental fines and
penalties that exceed $1.5 million, or those that are based on the
application of economic benefit or size-of-business criteria. 'Economic
benefit criteria' capture the economic benefit that a violator gains as
a result of environmental noncompliance. Such a competitive advantage
could be gained when a violator does not invest money required for
environmental compliance. 'Size-of-business' criteria are based on
assessments of both an entity's net worth and its ability to pay a fine
or penalty. Included in the prohibition is the use of funds to implement
supplemental environmental projects that may be required as part of, or
in lieu of, a proposed civil penalty. Section 342 would negate the
current law that requires that the DOD pay automatic fines and penalties
for violations of environmental laws - just like every other federal
agency or private party that violates the law. This provision has
far-reaching ramifications, yet it has not been the subject of any
public hearings.

This provision was added specifically in response to a large
environmental fine proposed by the U.S. Environmental Protection Agency
at Fort Wainwright, Alaska. At Fort Wainwright the Army operates the
largest coal burning power plant owned by the U.S. military, and the
violations at this facility appear to be more extensive than any found
to date at private coal-fired power plants. After at least 11 years of
continual, flagrant, and serious violations of clean air standards
(which have even given rise to at least one criminal investigation by
the Army), the Fort Wainwright facility clearly is no poster child for
special exemptions from state and federal environmental penalties.

We should not reward this type of behavior and undermine years of
progress at federal, state and local levels towards improved
environmental compliance by federal agencies. Congress has repeatedly
declared that both state and federal environmental regulators should
have the clear authority to enforce most environmental laws at federal
facilities, including Defense Department installations. For example, in
1992 Congress enacted the Federal Facilities Compliance Act, clarifying
regulator powers to enforce laws governing the treatment, storage,
disposal, and corrective action of hazardous wastes. In signing that
law, President Bush noted that it represented a step towards fulfilling
his promise to the American people that "the Federal Government live up
to the same environmental standards that apply to private citizens."
Implementation of Section 342 could severely undermine this trend
towards better compliance and likely will result in increased

The $1.5 million cap in this bill language could create a perverse
incentive for the DOD, encouraging the military to engage in especially
egregious behavior so that it can seek respite from Congress.
Additionally, state and federal agencies would be crippled in their
ability to prevent DOD facilities that violate environmental laws from
avoiding their current obligations to abide by those laws and from
diverting resources that should be spent on environmental compliance to
other military projects. Military facilities will be above the law -
eroding public confidence in government. Dan L. Crippen, the Director of
the Congressional Budget Office (CBO), found that since 1994 the DOD has
paid over $14 million in fines - most of which have been paid to state
and local governments. CBO also found that requiring Congressional
review "will likely delay payment of some fines" and could "make it more
difficult for state and local governments to negotiate for compliance
with environmental laws."

In a May 18, 2000 letter the National Governors' Association, the
National Conference of State Legislatures, and the National Association
of Attorneys General collectively voiced their opposition to the
provisions of Section 342. Among other things they stated that this
proposal "has the unfortunate effect of interjecting the legislature
into what should be an independent system of law enforcement operated by
the states and other environmental regulators."

This provision impairs a valuable tool that states have used to improve
environmental protection and derails the current trend toward federal
facility accountability. Creating a special exemption for DOD from
penalties for environmental violations sends the message that this
federal agency can ignore and discount the laws by which everyone else
must abide. Because of the serious ramifications for federal
accountability and protection of the environment and public health we
strongly urge you to oppose section 342 in the FY 2001 National Defense
Authorization Act. 

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