2002 CPEO Military List Archive

From: CPEO Moderator <cpeo@cpeo.org>
Date: 10 Apr 2002 21:28:02 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] CO AG's Comments on Encroachment

April 1, 2002

The Honorable Joel Hefley
United States House of Representatives
Committee on Armed Services? Subcommittee
on Military Readiness
2230 Rayburn House Office Building
Washington, D.C.    20515-0605

Dear Chairman Hefley:

Thank you for the opportunity to submit written testimony regarding the 
impact of environmental regulation on military readiness.  Enclosed are 
several pieces of correspondence that the National Association of 
Attorneys General has sent over the years.  This correspondence is 
indicative of the states' concerns with federal agencies' -- and more 
specifically, the Department of Defense's -- compliance with state and 
federal environmental laws.  In addition to this correspondence, we 
would like the Committee to consider the following observations.

First, we absolutely support maintaining our Nation's military 
preparedness.  We recognize that maintaining military readiness requires 
that the armed forces receive regular realistic training, and that the 
military be able to test and evaluate weapons systems and other military 
equipment under realistic conditions.  We also recognize that "external" 
factors such as urban and suburban sprawl, have impacted the Department 
of Defense's training, testing and evaluation activities.  And we are 
aware of isolated cases where requirements imposed under the pollution 
control laws may have affected military operations.  At the same time, 
we are concerned that DOD's training, testing and evaluation activities 
obviously do have environmental impacts.  The question is how to conduct 
these activities in a manner that maintains readiness while ensuring 
protection of human health and the environment.

The states are the primary implementers of the nation's pollution 
control laws.  We think that the existing framework of these laws is 
sufficiently flexible to provide for balancing of environmental and 
readiness concerns.  There is a great deal of flexibility built in to 
the different regulatory programs, as the Department's own testimony has 
demonstrated.   As we understand the Department's testimony, it is 
concerned about the cumulative impact of environmental, health and 
safety restrictions on military readiness, and fears that these impacts 
will increase.  However, the environmental laws already allow either the 
President or the Secretary of Defense to exempt the Department of 
Defense from their statutory and regulatory requirements on a case by 
case basis.  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.  Such 
exemptions exist under the Clean Air Act, Clean Water Act, Resource 
Conservation and Recovery Act (RCRA), Comprehensive Environmental 
Response, Compensation and Liability Act, and Safe Drinking Water Act.  
We understand that to date, these exemption provisions have only been  
invoked twice, and neither instance involved military training 

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 became final.  Congress passed a 
similar amendment to the Safe Drinking Water Act.  And Congress has 
already spoken to the balance between environmental protection and 
management of waste military munitions.  In 1992, Congress rejected a 
bill that would have authorized the Secretary of Defense to promulgate 
regulations governing the safe development, handling, use, 
transportation, and disposal of military munitions.  Instead, it 
directed the Environmental Protection Agency to consult with the 
Secretary of Defense prior to issuing regulations that define when 
military munitions become wastes for purposes of RCRA.  

Finally, in 1997, Congress 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."  During the suspension, the 
Secretary and the head of the other federal agency must consult attempt 
to mitigate or eliminate the adverse impact of the proposed action on 
readiness, consistent with the purpose of the proposed action.

We understand that the Department plans to propose legislative changes 
to the environmental laws.  We believe that any such changes should be 
considered very carefully.  The history of federal facility compliance 
with environmental laws demonstrates that statutory constructs that rely 
on voluntary efforts by federal agencies to achieve environmental 
objectives simply do not work.  Even when Congress has clearly stated 
its intent that federal agencies be subject to state and federal 
environmental laws, the federal agencies have frequently resisted 
efforts to require them to comply.  The history of the Clean Air Act 
provides a good example.  Before 1970, the Clean Air Act encouraged, but 
did not require, federal agencies to comply with its mandates.  Congress 
determined that this voluntary system was not working, and in 1970 
amended the act to require federal agencies to comply.  Specifically, 
Congress added section 118 to the Clean Air Act.  The first sentence of 
the section provides, in relevant part:

Each department, agency, and instrumentality of . . . the Federal 
Government . . . shall comply with Federal, State, interstate, and local 
requirements respecting control and abatement of air pollution to the 
same extent that any person is subject to such requirements.
42 U.S.C. § 1857f.  The 1970 amendments also required the Environmental 
Protection Agency to establish ambient air quality standards.  Each 
state had to submit plans describing how the state would meet these 
standards.  Kentucky, like most states, submitted a plan that relied on 
permits as the sole mechanism to establish emissions limitations for air 
pollution sources, and to establish schedules for achieving compliance 
with the emissions limitations.  Kentucky sought to require several 
federal facilities (including the Army's Fort Knox, Fort Campbell and 
others) to obtain permits.  The federal agencies refused, arguing that 
section 118 of the Clean Air Act did not obligate them to comply with 
"procedural" requirements, such as the need to obtain state permits.  
Without the permit, there was no way for Kentucky to control air 
pollution from these federal facilities.  The matter went to court, and 
ultimately 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 

Even when Congress has plainly required federal agencies to comply with 
state and federal environmental laws, the federal agencies have worse 
compliance records than private industry.  The sole exception is under 
RCRA.  In 1992, the Supreme Court held that federal agencies were not 
subject to penalties for violating state hazardous waste and water 
quality laws.  That same year, Congress amended RCRA to make federal 
agencies subject to penalties for violating hazardous waste laws.  Since 
1992, DOD and other federal agencies have steadily improved their RCRA 
compliance rates, to the point where they now have a higher compliance 
rate than private industry.  

This salutary trend stands in stark contrast to federal agency 
performance under the Clean Water Act.  Unlike RCRA, Congress has not 
amended the Clean Water Act to subject federal agencies to penalties for 
violating Clean Water Act requirements.  The percentage of DOD 
facilities in significant non-compliance with the Clean Water Act has 
steadily risen over time.  Similarly, DOD has long had a higher rate of 
significant non-compliance with Clean Water Act requirements than 
private industry, or even civilian federal agencies.					

Thus, we are concerned that providing the Department of Defense 
statutory exemptions from environmental laws will have adverse impacts 
on human health and the environment.  But such exemptions will have 
other undesirable impacts as well: substantially increased costs to 
"remedy" environmental contamination, and greater constraints on use of 
training ranges.  As we stated in our May 31, 2001 letter regarding 
encroachment, prevention is by far the most effective and least costly 
means of ensuring environmental protection.  It also is a necessary 
component of sustainable range management.  The Department, and the 
nation, cannot afford to repeat the experience at the Massachusetts 
Military Reservation (MMR) at other ranges around the country.  There, 
decades of  military training activities have contaminated over 60 
billion gallons of groundwater in the sole source aquifer for Cape Cod.  
This contamination led EPA to suspend most live-fire military training 
at the MMR artillery range pursuant to its Safe Drinking Water Act 
authority.  Subsequently, the state of Massachusetts and the Army 
reached an agreement, now embodied in state law, that balances military 
training needs and environmental protection.  The plain lesson here is 
that ignoring environmental consequences of military training benefits 
neither the environment, public health, nor military training. 

In conclusion, resolving the increasing pressures on military training 
activities in a manner that protects human health and the environment, 
while ensuring military readiness, demands creative thinking.  The 
issues involved are many and complex.  They would benefit from an open 
discussion among a full range of affected parties.  The states, as the 
primary implementers of the nation's environmental laws, must play a key 
role in arriving at any solutions.  We thank the Committee for this 
opportunity to express our views.

Ken Salazar
Attorney General of Colorado	
NAAG, Chair
Environment Committee


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