STORM2K

Aslkahuna wrote:Actually, the DOD sites DO have to follow current Environmental guidelines now and many DOD installations are also de facto wildlife preserves and protected Archeological sites (such as the Hohokam dig site on Fort Huachuca). The problems come from the days before DOD was required to follow EPA rules. Also, one problem with perchlorate is that it's fallout from whenever a solid fuel rocket is fired (including those biggees on the Shuttle and other vehicles fired into Space) and is spread by the wind.

Steve

As part of its FY2003 defense authorization proposal, DOD
issued a Readiness and Range Preservation Initiative, requesting certain exemptions from
six environmental laws: Migratory Bird Treaty Act, Endangered Species Act, Marine
Mammal Protection Act, Clean Air Act, Solid Waste Disposal Act, and Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA).

After considerable debate, the 107th Congress enacted an exemption from the
Migratory Bird Treaty Act, and the 108th Congress enacted exemptions from the Marine
Mammal Protection Act and certain parts of the Endangered Species Act. Although these
exemptions were contentious among those concerned about the weakening of protections
for animals and plants, there has been greater opposition to exemptions that DOD has
requested from the Clean Air Act, Solid Waste Disposal Act, and CERCLA. Opponents
to exemptions from these three latter statutes have expressed concern about human health
risks from potential exposure to air pollution and hazardous substances. DOD requested
these exemptions again in its FY2007 defense authorization proposal, continuing to assert
that critical training could be restricted otherwise. As of the adjournment of the 109th
Congress, these exemptions were not included in FY2007 defense authorization
legislation (H.R. 5122) or FY2007 defense appropriations legislation (H.R. 5631 and H.R.
5385).

The following environmental laws authorize the President to grant exemptions for federal
facilities, including military installations, on a case-by-case basis. Exemptions for activities in
the “paramount interest of the United States,” including national security, are provided in the
Clean Air Act (42 U.S.C. 7418(b)), Clean Water Act (33 U.S.C. 1323(a)), Noise Control Act (42
U.S.C. 4903), Solid Waste Disposal Act (42 U.S.C. 6961(a)), and Safe Drinking Water Act (42
U.S.C. 300(j)(6)). A “national security” exemption is provided in CERCLA (42 U.S.C. 9620(j)).
The Endangered Species Act (16 U.S.C. 1536(j)) authorizes a special committee to grant an
exemption if the Secretary of Defense finds it necessary for national security.
The Safe Drinking Water Act does not impose time limits on exemptions. Although the
Endangered Species Act allows time limits, the law does not require it.

Exemptions Enacted in the 107th and 108th Congresses
As noted above, the 107th Congress enacted an interim exemption for military
readiness activities from the Migratory Bird Treaty Act, and the 108th Congress enacted
a broad exemption from the Marine Mammal Protection Act and a narrower one from
certain parts of the Endangered Species Act. Throughout the congressional debate over
these exemptions, there was significant disagreement among Members of Congress regarding the military need for them in light of the lack of data on the effect of these
statutes on readiness overall, and the potential impact of the exemptions on animal and
plant species. A summary of each exemption is discussed below.6
Migratory Bird Treaty Act. Section 315 of the National Defense Authorization
Act for FY2003 (P.L. 107-314) directed the Secretary of the Interior to develop
regulations for issuing permits for the “incidental takings” of migratory birds during
military training exercises, and provided an interim exemption from the Migratory Bird
Treaty Act while these regulations are drafted. A U.S. district court had ruled that federal
agencies, including DOD, are required to obtain permits for incidental takings.7 DOD
argued that an exemption was needed to prevent the delay of training activities until
takings permits can be issued. In June 2004, the U.S. Fish and Wildlife Service proposed
regulations for issuing incidental takings permits to DOD.8 The regulations have been
pending, subject to review by the Office of Management and Budget.
Endangered Species Act. Section 318(a) of the National Defense Authorization
Act for FY2004 (P.L. 108-136) granted the Secretary of the Interior the authority to
exempt military lands from designation as critical habitat under the Endangered Species
Act, if the Secretary determines “in writing” that an Integrated Natural Resource
Management Plan for such lands provides a “benefit” to the species for which critical
habitat is proposed for designation. The U.S. Fish and Wildlife Service had been allowing
these plans to substitute for critical habitat designation in recent years. DOD argued that
clarification of the authority for this practice was needed to avoid future designations that
in its view could restrict the use of military lands for training. Section 318(b) also directs
the Secretary of the Interior to consider impacts on national security when deciding
whether to designate critical habitat. Although these provisions affect the applicability
of critical habitat requirements on military lands, DOD continues to be subject to all other
protections provided under the Endangered Species Act, including consultation
requirements and prohibitions on the “taking”9 of endangered and threatened species.
Marine Mammal Protection Act. Section 319 of P.L. 108-136 provided a broad
exemption from the Marine Mammal Protection Act for “national defense.” Section 319
also amended the definition of “harassment” of marine mammals, as it applies to military
readiness activities, to require greater scientific evidence of harm, and required the
consideration of impacts on military readiness in the issuance of permits for incidental
takings. DOD argued that these amendments were needed to prevent restrictions on the
use of the Navy’s low-frequency “active” sonar system. Environmental advocates had
legally challenged the use of the sonar system, arguing that it harmed marine mammals
and thus violated the Marine Mammal Protection Act and other environmental statutes.10
The impact of Navy sonar on marine mammals continues to be an issue.11
Exemptions Sought by DOD in the 109th Congress
Similar to past proposals since FY2003, DOD included exemptions from certain
requirements of the Clean Air Act, Solid Waste Disposal Act, and CERCLA in its
FY2007 defense authorization proposal to Congress. DOD and some Members argued
that these exemptions are needed to preserve military training capabilities, and that they
would have a minimal impact on environmental quality. Other Members, states,
communities, and environmental advocates countered that the impacts would reach
beyond DOD’s stated intent and that such exemptions could harm human health and the
environment. As noted earlier, neither FY2007 defense authorization nor appropriations
legislation included these exemptions, as of the adjournment of the 109th Congress.
DOD’s proposal is discussed below, as submitted to Congress in early 2007.
Clean Air Act. DOD proposed to exempt emissions generated by military
readiness activities from requirements to “conform” to State Implementation Plans (SIP)
for achieving federal air quality standards. Under current law, sources of emissions,
including activities of federal agencies, that would increase emissions above limits in a
state’s SIP are prohibited, unless offsetting reductions from other sources are made in the
same area. DOD argued that its proposed exemption would provide greater flexibility for
transferring training operations to areas with poor air quality, without restrictions on these
operations due to the emissions they would generate.
DOD asserted that the activities in question have a small impact on air quality, many
of which involve the reassignment of aircraft from one installation to another. In most
areas, the threshold for imposition of the conformity requirement is a net increase of 100
tons of emissions annually, an amount that some municipal governments estimate would
be equal to more than 72,000 military aircraft takeoffs and landings annually. Whether
such an increase is, in fact, “small” is one issue raised by opponents, including state and
local air pollution control program officials, state environmental commissioners, state
attorneys general, county and municipal governments, and environmental advocates.
DOD also proposed to alter Clean Air Act requirements for nonattainment areas in
which nonconforming military readiness activities are conducted. These areas would be
allowed to demonstrate that they would have met the standards except for emissions from
readiness activities. DOD also proposed to remove the consequences of failure to attain
the standards in such areas — that is, an area could not be forced to impose more stringent
pollution control requirements if its failure to meet air quality standards were the result
of emissions generated by military readiness activities.
Solid Waste Disposal Act and CERCLA. DOD proposed to amend the
definition of “solid waste” in the Solid Waste Disposal Act and “release” (or threatened
release) in CERCLA, to exclude military munitions on an operational range. The
proposed exemption used the current definition of operational range,12 under which DOD
has the discretion to designate practically any lands under its jurisdiction as operational,
regardless of whether the land is being used for training. Opponents asserted that this
exemption would place military munitions on operational ranges beyond the reach of
these two statutes, and could allow munitions and any resulting contamination to remain
on any military lands designated as operational. As the exemption would no longer apply
once a range ceased to be operational, it presumably would not apply to ranges on closed
bases after the land is transferred out of military jurisdiction.13
DOD claimed its proposal would clarify existing regulations that the Environmental
Protection Agency finalized in 1997.14 Under these regulations, “used or fired” munitions
on a range are considered a solid waste only when they are removed from their landing
spot.15 Until DOD removes them and they “become” solid waste, they are not subject to
disposal requirements. Munitions left to accumulate on a range can leach hazardous
constituents into the soil and groundwater over time, possibly requiring cleanup. DOD
stated that it seeks to clarify existing regulations in order to eliminate the possibility of
legal challenges, which might result in an active range being closed to require the removal
of accumulating munitions and cleanup of related contamination. DOD asserted that such
challenges could restrict training.
However, excluding military munitions from “solid waste” and “release” in federal
statute could have broader implications than in existing regulation. Opponents, including
state attorneys general, state waste management officials, municipal water utilities,
environmental advocates, and community groups, argued that DOD’s proposal would
narrow the waiver of federal sovereign immunity in states, resulting in the removal of
state authority to monitor groundwater on operational ranges to determine whether a
substance presents a health hazard, or to file citizen suits under the Solid Waste Disposal
Act or CERCLA to compel cleanup of that substance. They argued that if this were the
case, groundwater contamination could not be investigated until it migrated off-range,
potentially resulting in greater contamination and higher cleanup costs than if the
contamination were identified and responded to earlier. Opponents also asserted that the
potential threat of litigation is not sufficient basis for a broad change to existing law,
noting that cleanup requirements have not resulted in widespread restrictions on the
operation of military training ranges, as DOD fears.