Order Code RL31456
Report for Congress
Received through the CRS Web
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2003
Updated October 29, 2002
David M. Bearden
Environmental Information Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2003
Summary
The Department of Defense (DOD) administers five environmental programs
in response to various requirements under federal environmental laws. These
programs include environmental cleanup, environmental compliance, pollution
prevention, environmental technology, and conservation. In addition, the Department
of Energy (DOE) is responsible for managing defense nuclear waste and cleaning up
contaminated nuclear weapons sites. The Administration requested a total of $11.17
billion for these programs in FY2003, about $390 million more than the FY2002
funding level of $10.78 billion. Some of the principal issues associated with these
programs are the adequacy, cost, and pace of cleanup, whether DOD and DOE
adequately comply with environmental laws and regulations, and the extent to which
environmental requirements encroach upon military readiness.
The House and Senate have passed legislation to authorize national defense
programs for FY2003, and a conference is underway. H.R. 4546 would authorize
$1.28 billion for environmental cleanup at current and former military installations,
whereas S. 2514 would authorize $1.32 billion. Both bills would authorize funding
for DOD’s other environmental activities as part of several larger accounts. For
DOE’s management of defense nuclear waste and cleanup of contaminated nuclear
weapons sites, H.R. 4546 would authorize $6.59 billion, while S. 2514 would
authorize $6.87 billion. H.R. 4546 also would exempt military readiness activities
from certain requirements under the Endangered Species Act, the Migratory Bird
Treaty Act, and the Wilderness Act. S. 2514 does not include such exemptions.
Even though authorization legislation is still pending, action is nearly complete
to appropriate funding in FY2003 for national defense programs. P.L. 107-248 (H.R.
5010) provides $1.31 billion for the cleanup of environmental contamination at
current and former military installations. As in defense authorization legislation, the
law also provides funding for DOD’s other environmental activities under several
larger accounts. P.L. 107-249 (H.R. 5011) provides $561 million for base closure
activities, which includes the cleanup of environmental contamination. Action on
other defense-related appropriations bills is still underway. As reported by the Senate
Appropriations Committee, S. 2784 (S.Rept. 107-220) would provide $6.69 billion
for DOE’s management of defense nuclear waste and cleanup of contaminated
nuclear weapons sites. The House Appropriations Committee approved $6.87 billion
for these activities in reporting H.R. 5431 (H.Rept. 107-681). Floor action has not
occurred on either bill to date. A continuing resolution (P.L. 107-244) provides
funding through November 22, 2002, at the same level as enacted for FY2002.
At least 14 other bills have been introduced in the 107th Congress which address
defense environmental activities, such as conversion of the Rocky Flats site in
Colorado to a National Wildlife Refuge, cleanup of unexploded ordnance, protection
of endangered species, environmental compliance, reform of Superfund cleanup
requirements, military response to environmental emergencies abroad, storage and
use of mercury, regulation of air pollution from military aircraft, and use of depleted
uranium munitions. This report will be updated as relevant developments occur.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Oversight of Cleanup Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Overseas Military Installations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Compliance Requirements under Federal Law . . . . . . . . . . . . . . . . . . . 7
Funding Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fines for Violations of Environmental Requirements . . . . . . . . . . . . . . 8
Other Environmental Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Military Readiness Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Oversight of Cleanup and Waste Management Activities . . . . . . . . . . . . . . 12
Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Yucca Mountain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Formerly Utilized Sites Remedial Action Program . . . . . . . . . . . . . . . . . . . 17
Authorization Legislation in the Second Session of the 107th Congress . . . . . . . 18
H.R. 4546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Migratory Bird Treaty Act Exemption . . . . . . . . . . . . . . . . . . . . . . . . . 20
Endangered Species Act Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Wilderness Act Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
S. 2514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Appropriations in the Second Session of the 107th Congress . . . . . . . . . . . . . . . 24
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Military Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Energy and Water Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Supplemental Appropriations for FY2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Other Relevant Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . 31
Making the Rocky Flats Site a National Wildlife Refuge . . . . . . . . . . . . . . 31
Removal and Remediation of Unexploded Ordnance . . . . . . . . . . . . . . . . . 32
Endangered and Threatened Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Compliance with Federal and State Environmental Laws . . . . . . . . . . . . . . 32
Superfund Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Military Response to Environmental Emergencies in
Foreign Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Storage and Use of Mercury at Military Installations . . . . . . . . . . . . . . . . . 34
Regulation of Pollution from Military Aircraft Operations . . . . . . . . . . . . . 35
Suspension of the Use of Depleted Uranium Munitions . . . . . . . . . . . . . . . 35
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
List of Figures
Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 to FY2002 Enacted and FY2003 Request . . . . . . . . . . . . . . . . . . . . 2
Figure 2. Cleanup Status at Current, Former, and Closing Military Installations
in the United States as of September 30, 2001 . . . . . . . . . . . . . . . . . . . . . . . 5
Figure 3. Cleanup Status at DOE Environmental Restoration and Waste
Management Sites as of September 30, 2001 . . . . . . . . . . . . . . . . . . . . . . . 14
Figure 4. Cleanup Status under the Formerly Utilized Sites Remedial
Action Program as of September 30, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . 18
List of Tables
Table 1. Fines and Penalties Assessed and Paid for Environmental Violations
from FY1997 to FY2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Defense Cleanup and Environmental
Programs: Authorization and
Appropriations for FY2003
Introduction
The Department of Defense (DOD) administers five environmental programs
to clean up past contamination at military installations; comply with environmental
laws and regulations that apply to ongoing military operations; prevent future
contamination; develop more cost-effective environmental cleanup and waste
management technologies; and conserve the natural, historical, and cultural resources
of military lands. In addition to DOD’s programs, the Department of Energy (DOE)
is responsible for managing defense nuclear waste, and cleaning up contaminated
nuclear weapons sites. While DOD and DOE are responsible for performing these
activities, the Environmental Protection Agency (EPA) and the states provide
oversight to enforce applicable laws and regulations, and they have the authority to
assess fines and penalties if violations occur. Some of the principal issues associated
with these programs are the adequacy, cost, and pace of cleanup, whether DOD and
DOE adequately comply with environmental laws and regulations, and the extent to
which environmental requirements encroach upon military readiness.
Congress authorizes DOD’s and DOE’s defense-related environmental
programs in the annual authorization bill for National Defense, but it funds these
programs under three appropriations bills. Cleanup activities at currently active and
former military installations, environmental compliance, pollution prevention,
environmental technology, and conservation primarily receive funding in the annual
appropriations bill for the Department of Defense, but cleanup at base closure sites
is funded in the annual appropriations bill for Military Construction. DOE’s
cleanup and management of defense nuclear waste is funded in the annual
appropriations bill for Energy and Water Development. Figure 1 provides a funding
history for each program since FY1990. For FY2003, the Administration requested
a total of $11.17 billion for all defense-related environmental programs, about $390
million more than the FY2002 funding level of $10.78 billion. While the FY2003
appropriations bills for the Department of Defense and Military Construction have
been signed into law, consideration of FY2003 appropriations for cleaning up and
managing defense nuclear waste is not yet complete.
This report explains the scope and function of DOD’s and DOE’s defense-
related environmental programs, identifies relevant requirements under federal law,
analyzes various implementation issues, indicates the President’s budget request for
FY2003, examines relevant provisions in authorization legislation and
appropriations for FY2003, and discusses additional legislation introduced in the
107th Congress that could affect defense-related environmental activities.









































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































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Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 to FY2002 Enacted and FY2003 Request
Billions of Dollars
14.00
11.17
12.00
10.51
10.63
10.82
10.78
9.93
9.97
10.19
10.31
10.26
9.92
10.00
7.36
8.00
5.25
6.00
3.05
4.00
2.00
0.00
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
Environmental Technology
n/a
n/a
n/a
0.43
0.41
0.28
0.22
0.21
0.21
0.26
0.29
0.29
0.23
0.21
Pollution Prevention
n/a
n/a
n/a
0.30
0.34
0.29
0.25
0.26
0.26
0.23
0.28
0.21
0.24
0.25
Natural Resource Conservation
n/a
n/a
n/a
0.12
0.10
0.15
0.11
0.09
0.14
0.13
0.16
0.18
0.16
0.15
Base Closure Cleanup
n/a
0.37
0.62
0.49
0.54
0.64
0.85
0.68
0.83
0.76
0.36
0.79
0.59
0.52
Current and Former Site Cleanup
0.60
1.07
1.13
1.64
1.97
1.48
1.41
1.31
1.30
1.27
1.30
1.31
1.27
1.28
Environmental Compliance
0.79
1.11
1.93
2.12
1.98
2.04
2.23
2.02
1.91
1.89
1.66
1.63
1.66
1.71
Corps of Engineers FUSRAP
n/a
n/a
n/a
n/a
n/a
n/a
n/a
n/a
0.14
0.14
0.15
0.14
0.14
0.14
Department of Energy Cleanup
1.66
2.70
3.68
4.83
5.17
5.09
5.56
5.62
5.52
5.58
5.72
6.27
6.49
6.91
Request
Prepared by the Congressional Research Service using data from enacted appropriations, Operation and Maintenance Overviews of the
Department of Defense, and congressional budget justifications of the Department of Energy. N/A = account or program not yet established.
FUSRAP = Formerly Utilized Sites Remedial Action Program. Congressional action for FY2003 is not indicated since there are no
comprehensive line-item accounts for compliance, pollution prevention, environmental technology, and conservation. The FY2003 budget for
these programs will be derived from appropriations for several larger accounts, and will be indicated in the Administration's budget request for
FY2004, which will include funding data for the previous fiscal year.
CRS-3
Department of Defense
DOD administers five environmental programs to comply with requirements
under various federal environmental laws.1 In terms of funding, the two largest
programs focus on cleaning up past contamination at current, former, and closing
military installations, and on complying with environmental laws and regulations that
apply to ongoing military operations. DOD’s three other environmental programs
have smaller budgets. They focus on pollution prevention, environmental
technology, and conservation. For FY2003, the Administration requested a total of
$4.11 billion for all five programs, about $44 million less than the FY2002 funding
level of $4.15 billion. DOD reports that the proposed decrease is primarily due to no
funding being requested to continue specific projects that received congressionally
“earmarked” funding in FY2002. (Refer to page 24 for a discussion of
appropriations.) More detailed information on each program is provided below.
Environmental Cleanup
In 1975, DOD established an Installation Restoration Program to investigate and
clean up sites on military lands where past waste management practices had led to
environmental contamination. A few years later, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA) created the
Superfund program to clean up hazardous waste sites that pose the greatest risk to
public health and the environment in the United States, and it created the National
Priorities List (NPL) to track them.2 The law also established a formal framework
for the identification, investigation, and cleanup of hazardous substances. Initially,
the extent to which DOD had to comply with these requirements was unclear.
However, the Superfund Amendments and Reauthorization Act of 1986 (SARA)
specified that DOD and all other federal agencies are subject to CERCLA’s
requirements for identifying, evaluating, and cleaning up NPL sites under their
jurisdiction.3 The Resource Conservation and Recovery Act (RCRA) also requires
DOD and all other federal agencies to perform corrective actions to clean up
contamination at sites with active hazardous waste management or solid waste
disposal facilities operating with permits issued under RCRA.4
In addition to specifying the applicability of CERCLA, SARA expanded the
Installation Restoration Program, and renamed it the Defense Environmental
Restoration Program, to centralize DOD’s efforts in cleaning up hazardous waste
sites at domestic military installations where past actions led to contamination.5 As
a complement to this program, DOD established a Military Munitions Response
Program to fulfill requirements under Sections 311 and 312 of the National Defense
1 For additional information on each program, refer to the Defense Environmental Network
and Information Exchange (DENIX) web site at [http://www.denix.osd.mil].
2 42 U.S.C. 9601 et. seq.
3 42 U.S.C. 9620
4 42 U.S.C. 6901 et seq.
5 10 U.S.C. 2701
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Authorization Act for FY2002 (P.L. 107-107) to identify, investigate, and clean up
unexploded ordnance (UXO) and other munitions at nonoperational training ranges
in the United States. This program is in its initial stage, and only a portion of
contaminated sites have been identified thus far. As DOD continues to identify
additional sites and investigate the extent of contamination, more information will
be available on the actions and costs that will be necessary to address the safety and
environmental hazards presented by UXO. The following sections explain the role
of EPA and the states in conducting oversight of DOD’s cleanup activities, indicate
cleanup status and costs, explain appropriations account structure, and discuss
cleanup efforts at overseas military installations.
Oversight of Cleanup Activities. While DOD is responsible for funding
and conducting cleanup actions at its sites, EPA and the states conduct oversight of
these actions to determine whether DOD complies with the law. Generally, EPA
takes the lead in performing oversight of DOD sites being cleaned up under
CERCLA, and EPA delegates federal authority to the states for conducting oversight
of corrective actions taken under RCRA. However, cleanup requirements under
CERCLA and RCRA apply only within the United States. The cleanup of
contamination at overseas military installations is subject to requirements specified
within the Status of Forces Agreement with each host nation. These requirements are
generally not as strict as CERCLA and RCRA, and their stringency varies widely
from country to country. Unlike domestic cleanup actions, EPA does not have the
authority to conduct oversight at military installations abroad. Rather, overseeing
DOD’s actions to ensure that the requirements of a Status of Forces Agreement are
met is the responsibility of each host nation.
Cleanup Status and Costs. Until FY1994, DOD primarily concentrated its
cleanup efforts on identifying and investigating contaminated sites to determine the
level of remediation that would be necessary to protect human health and the
environment. As the majority of sites were identified and subsequent investigations
were completed, DOD began to focus the bulk of its efforts on actual cleanup. In
FY1996, DOD also developed specific cleanup goals to prioritize its sites, based on
threats of exposure. As indicated in Figure 2, DOD had identified a total of 28,538
contaminated sites as of the end of FY2001.6 These sites are located on 5,046
current, former, and closing military installations in all 50 states and several U.S.
territories. As of that time, DOD had completed cleanup at 19,564 of its
contaminated sites (nearly 69% of total sites) at a cost of $18.6 billion, and reported
that almost $31.0 billion would be necessary to finish cleanup at the remaining 8,974
sites from FY2002 to site completion.
Even though less than 1/3 of contaminated sites are still in need of cleanup, the
above estimates of future cleanup costs are substantially higher than has already been
spent due to the severity of contamination at these remaining sites and the resources
that likely will be necessary to address UXO contamination. DOD expects that
estimates of funding needs will likely increase in future years as additional sites with
UXO contamination are identified and the extent of such contamination is
6 Department of Defense. Defense Environmental Restoration Program Annual Report to
Congress for FY2001. April 2002. p. B-6-1, p. C-5-1.
CRS-5
determined. Funding needs for cleanup also may rise in future years as additional
military bases are selected for closure. The National Defense Authorization Act for
FY2002 (P.L. 107-107) authorized a new round of military base closings in 2005.
The amount of funding that would be necessary to accelerate cleanup at new base
closure sites, and transfer them to other uses, would depend on the type and extent
of contamination present at such installations. Costs to accelerate cleanup could be
high if the bases selected for closure contain some of the more severely contaminated
sites that are on the NPL and are subject to cleanup under CERCLA.
Figure 2. Cleanup Status at Current, Former, and Closing Military
Installations in the United States as of September 30, 2001
Total Number of Sites = 28,538
31.4%
Response in Progress
8,974 Sites
Response Complete
19,564 Sites
68.6%
Prepared by the Congressional Research Service using data from the Department of Defense,
Defense Environmental Restoration Program Annual Report to Congress for FY2001,
April 2002, p. B-6-1, p. C-5-1.
Appropriations Account Structure. Cleanup costs at domestic military
sites are funded by several centralized accounts structured by category of installation.
Funding for cleanup at current and former military installations is authorized under
five Defense Environmental Restoration Accounts in the annual authorization bill for
National Defense, and is appropriated to these accounts in the annual appropriations
bill for the Department of Defense. Three of these accounts reserve funding for the
Army, Navy, and Air Force. One devotes funding to a more general category of
Defense-Wide sites, and another is dedicated to cleaning up Formerly Used Defense
Sites (FUDS).7 Typically, FUDS are sites on properties that DOD owned or leased
7 Congress first appropriated funding to the Defense Environmental Restoration Account in
FY1984. Subsequently, the National Defense Authorization Act for FY1997 (P.L. 104-201)
divided the account into four subaccounts: Army, Navy, Air Force, and Defense-Wide.
Since then, Congress also has specified the amount of funding reserved for cleaning up
(continued...)
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in the past and are now devoted to civilian uses. Many of the FUDS sites were used
during the World War II era and prior years.
The Department of Defense Appropriations Act for FY2003 (P.L. 107-248)
provides a total of $1.31 billion for the Defense Environmental Restoration
Accounts, about $40 million more than the FY2002 funding level of $1.27 billion,
and about $30 million more than the Administration’s request of $1.28 billion. The
increase in funding is reserved for increasing the pace of cleanup at FUDS sites,
which has been criticized for proceeding more slowly than cleanup at currently active
installations. (Refer to page 24 for further discussion of P.L. 107-248.)
Cleanup at base closure sites is authorized separately under the Base
Realignment and Closure (BRAC) Account in the annual authorization bill for
National Defense. Appropriations for base closure activities are provided under the
BRAC account in the annual appropriations bill for Military Construction. Congress
authorized four rounds of base closures in 1988, 1991, 1993, and 1995, and
established a separate BRAC account for each round. These sites are separate from
former military properties, known as FUDS, which are discussed above.
The Military Construction Appropriations Act for FY2003 (P.L. 107-249)
provides $561 million for the BRAC account, from which funding for cleanup
activities will be allocated. The FY2003 appropriation is about $72 million less than
the FY2002 funding level of $633 million. As in FY2002, the law does not place a
limit on how much of the FY2003 appropriation can be spent on environmental
cleanup. Prior to FY2002, Congress had traditionally placed a limitation on such
funding. The departure from this budgetary practice is intended to provide DOD with
greater flexibility in allocating funding for cleanup needs. Of the FY2003
appropriation of $561 million, the Administration has estimated that it will need
$520 million for cleanup activities, about $74 million less than the amount of $594
million obligated for cleanup in FY2002. (Refer to page 26 for further discussion of
P.L. 107-249.)
Overseas Military Installations. As discussed above, there are several
centralized accounts to fund cleanup activities at domestic military installations.
However, there are no line-item accounts in the President’s annual budget
submission, or in annual defense authorization legislation or appropriations, to
conduct cleanup actions at overseas military installations. Rather, these projects are
funded on an installation-by-installation basis out of the general operational budget
for each foreign base, and DOD does not have the authority to transfer funding from
the cleanup accounts for domestic installations to address contamination abroad.
Further, DOD is not required to report to Congress on the status of cleanup actions
at overseas military installations, as the agency is required to do for domestic
facilities in its annual report on the Defense Environmental Restoration Program.
The only type of information that DOD is required to submit to Congress regarding
overseas cleanup is a statement of the amounts expended, and anticipated to be
7 (...continued)
FUDS sites, and the National Defense Authorization Act for FY2001 (P.L. 106-398)
established a FUDS subaccount to conform with this budgetary practice.
CRS-7
expended, as part of its annual report to Congress on the Defense Environmental
Quality Program. The most recent version of this report indicated that DOD spent
a total of $19.6 million in FY2001 on overseas environmental cleanup. The report
also indicated that $13.1 million was available from appropriations in FY2002, and
that in FY2003, $18.2 million would be required for overseas cleanup obligations.8
Environmental Compliance
DOD and all other federal agencies are required to comply with environmental
laws and regulations to the same extent as any other entity. Typically, environmental
compliance projects at military installations include routine operations such as
storing and disposing of solid and hazardous waste, upgrading and monitoring waste
water treatment plants, and testing and replacing underground storage tanks. The
following sections provide information on environmental compliance requirements
under federal law, examine funding trends for military compliance activities, and
indicate the amount of fines and penalties assessed against, and paid by, DOD for
environmental violations.
Compliance Requirements under Federal Law. The federal
environmental statutes that most commonly apply to the military’s routine operations
include the Clean Air Act, Clean Water Act, Resource Conservation and Recovery
Act (RCRA), and Safe Drinking Water Act. The Federal Facility Compliance Act
of 1992 amended RCRA to clarify in detail that DOD and all other federal facilities
are subject to penalties, fines, permit fees, reviews of plans or studies, and inspection
and monitoring of facilities in connection with federal, state, interstate, or local solid
or hazardous waste regulatory programs.9 The Act also authorized and directed EPA
to take enforcement actions under RCRA against any federal agency to the same
extent that it would against any other entity. While the Safe Drinking Water Act
includes similar language, other federal environmental laws do not include the same
clarification of compliance requirements. In the first session of the 107th Congress,
legislation (H.R. 2154) was introduced to extend this clarification language to other
environmental laws, discussed on page 32.
Funding Trends. DOD did not begin to comprehensively track the amount
of funding spent on environmental compliance activities until FY1990. However,
there are no centralized accounts for these activities in annual defense authorization
legislation or appropriations bills, as there are for environmental cleanup activities.
Instead, funding for compliance primarily comes from the accounts for Operation and
Maintenance, Military Construction, and Procurement. DOD’s budget for
environmental compliance has ranged from $790 million in FY1990 to a high of
$2.23 billion in FY1996. The Administration requested $1.71 billion for FY2003,
about $47 million more than the FY2002 funding level of $1.66 billion. According
to DOD, an increase was requested to meet environmental requirements for certain
Air Force activities and to implement waste water and drinking water treatment
projects at the Massachusetts Military Reservation in Falmouth, Massachusetts. The
8 Department of Defense. Defense Environmental Quality Program Annual Report to
Congress for FY2001. September 2002. p. 29.
9 42 U.S.C. 6961
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safety of drinking water has been an ongoing concern among communities
surrounding the reservation, since groundwater contamination was discovered in
private and municipal drinking water wells. While the Administration proposed an
overall increase in funding for environmental compliance activities, such funding for
the Navy and defense-wide facilities would decline due to the completion of one-time
projects.
Since there are no comprehensive line-item accounts for environmental
compliance activities, as there are for cleanup, DOD will develop its final FY2003
budget for environmental compliance from funds appropriated to the Operation and
Maintenance Accounts and Procurement Accounts in the Department of Defense
Appropriations Act for FY2003 (P.L. 107-248). Additional funding for compliance
activities will also come from other defense accounts in the Military Construction
Appropriations Act for FY2003 (P.L. 107-249). (Refer to page 24 for further
discussion of these laws.) Information on the total amount of funding budgeted in
FY2003 for compliance activities will not be available until the Administration
submits its budget request for FY2004, which will include funding data for the
previous fiscal year.
Fines for Violations of Environmental Requirements. While DOD is
required to comply with environmental laws and regulations, and has a dedicated
budget for such activities, the extent to which DOD fulfills these responsibilities has
been a longstanding issue. As explained above, federal environmental laws require
federal facilities to comply with all federal, state, interstate, and local environmental
requirements, and such laws authorize EPA, the states, and local governments to
assess fines against DOD for violations. However, a fine is not always paid in the
same year that it is assessed, and in some cases, DOD does not make a cash payment
to satisfy a fine. Instead, DOD may agree to perform a Supplemental Environmental
Project (SEP) in lieu of a cash payment. Under such an agreement, DOD not only
corrects its actions to comply with the environmental requirement at hand, but also
performs an additional project that enhances environmental quality. Regulatory
agencies frequently prefer the performance of SEPs to cash payments due to the
environmental benefits reaped from such projects.
The National Defense Authorization Act for FY2000 required DOD to include
information on environmental fines in its annual report to Congress on the Defense
Environmental Quality Program.10 This information must include the amount of
fines assessed and paid during the fiscal year for which the report is submitted, as
well as the past four fiscal years. As indicated in Table 1, EPA, the states, and local
governments assessed $11.8 million in fines against DOD for environmental
violations from FY1997 to FY2001.11 During this same period, DOD paid $11.6
million in cash payments and SEPs as compensation for its violations.12
10 P.L. 106-65, Section 322.
11 Department of Defense. Defense Environmental Quality Program Annual Report to
Congress for FY2001. September 2002. Appendix J. p. 19.
12 Ibid., Appendix J. p. 23.
CRS-9
Table 1. Fines and Penalties Assessed and Paid for
Environmental Violations from FY1997 to FY2001
Fiscal Year
Fines and Penalties Assessed
Cash Paid and Cost of SEPs
FY1997
$2,627,828
$5,231,955
FY1998
$2,915,198
$157,920
FY1999
$982,224
$3,298,810
FY2000
$3,656,136
$156,100
FY2001
$1,638,688
$2,761,279
Total
$11,820,074
$11,606,064
Prepared by the Congressional Research Service with data from the Department of Defense.
Defense Environmental Quality Program Annual Report to Congress for FY2001.
September 2002. Appendix J. p. 19 and p. 23.
However, the total amount indicated above for assessed fines does not include
a penalty of $16 million that EPA raised against the U.S. Army in FY2000 for
violations of the Clean Air Act at Fort Wainwright in Alaska. The appropriateness
of the amount of the fine is currently in dispute, and it is the single largest penalty
that EPA has ever assessed against DOD for an environmental violation. EPA used
the criteria of “economic benefit of noncompliance” and “size-of-business” to
determine the amount of the fine, which are ordinarily applied to private businesses.
The Army argued that “because federal facilities receive their funds from
appropriations and must spend the money for the purpose for which it was
appropriated, a federal facility cannot realize an economic benefit from non-
compliance.”13 The Army also argued that the size-of-business criteria should not be
applied, since military facilities are not net assets in the traditional sense and could
not be used as a financial resource to pay a fine. On April 30, 2002, the presiding
EPA administrative law judge rejected the Army’s arguments, and ruled that EPA
could apply the criteria of economic benefit of noncompliance and size-of-business
to the Army. The Army has requested that the Environmental Appeals Board review
this decision, and whether the fine will be reduced remains uncertain at this time.
Other Environmental Programs
In addition to environmental cleanup and compliance, DOD administers three
other programs that focus on pollution prevention, environmental technology, and
conservation. The purpose of the pollution prevention program is to reduce or
eliminate solid or hazardous waste from being generated and prevent environmental
problems before they occur. The environmental technology program supports
research, development, testing, and demonstration of more efficient and less costly
methods to clean up and manage solid and hazardous waste. The conservation
program aims to protect the natural, historical, and cultural resources of the 25
million acres of public land that DOD administers, including the protection of
endangered species.
13 Ibid., Appendix K. p. 10.
CRS-10
DOD began tracking the budget for these programs in FY1993. While these
programs are an integral part of DOD’s environmental strategy, their funding is
significantly smaller than the programs for environmental cleanup and compliance.
Like compliance, there are no centralized accounts for pollution prevention,
environmental technology, or conservation in annual defense authorization legislation
or appropriations bills. Instead, funding for these activities comes primarily from the
accounts for Operation and Maintenance, Procurement, and Research and
Development.
For FY2003, the Administration proposed an increase in funding for pollution
prevention, and decreases for environmental technology and conservation. First, the
budget for pollution prevention would increase by $6.2 million, from $241.3 million
in FY2002 to $247.5 million in FY2003. According to DOD, the proposed increase
is primarily due to funding needs for Air Force and defense-wide projects. Second,
funding for environmental technology would decline by $20.5 million, from $225.6
million in FY2002 to $205.1 million in FY2003. DOD reports that the proposed
decrease is mostly due to the lack of funding being requested to continue specific
projects that received congressionally “earmarked” funding in FY2002 under the
Research, Development, Test, and Evaluation Accounts. While the overall budget
for environmental technology would decline under the Administration’s proposal,
there would be a $7.8 million increase for the Environmental Technology
Certification program to accelerate the development of new ways to detect and clean
up UXO and other munitions. The development of such technologies will likely be
crucial in efforts to accurately identify and assess contaminated sites under the new
Military Munitions Response Program, discussed earlier. Third, funding for
conservation would decline by $11.7 million, from $163.7 million in FY2002 to
$152.0 million in FY2003. According to DOD, the proposed decrease is primarily
due to reduced costs for Air Force projects and the lack of funding being requested
for projects that received congressionally “earmarked” funding in FY2002.
Since there are no comprehensive line-item accounts that fund the programs for
pollution prevention, environmental technology, and conservation, DOD will develop
its final FY2003 budget for these activities as it has done in past years, from funds
appropriated to the Operation and Maintenance, Procurement, and Research and
Development Accounts. The Department of Defense Appropriations Act for FY2003
(P.L. 107-248) provides funding for each of these accounts. (Refer to page 24 for
further discussion of this law.) Information on the total amount of funding budgeted
in FY2003 for the above programs will not be available until the Administration
submits its budget request for FY2004, which will include funding data for the
previous fiscal year.
Military Readiness Issues
A major issue associated with the implementation of DOD’s environmental
programs is the extent to which environmental requirements restrict military
readiness capabilities. While most federal environmental laws specify their
applicability to federal facilities, Congress included exemptions in several statutes
to ensure that military training needs would not be restricted to the extent that
CRS-11
national security would be compromised. 14 These exemptions provide the President
with the authority to suspend compliance requirements for actions at federal facilities
on a case-by-case basis. Such exemptions may be granted if doing so would be either
in the “paramount interest of the United States” or in the “interest of national
security”. Most of these exemptions are limited to one year, but can be renewed.
The Safe Drinking Water Act does not impose a time limit on exemptions from
compliance. Under the Endangered Species Act, a special committee “shall grant”
an exemption if the Secretary of Defense finds it necessary for national security. This
committee may place a time limit on an exemption, but it is not required to do so
under the law.
The adequacy of existing exemptions to meet national security needs has
become a controversial issue. DOD argues that existing exemptions are too onerous
and time-consuming to obtain on a case-by-case basis due to the vast number of
training exercises that it conducts on hundreds of military installations across the
country. DOD also argues that the time limitations placed upon most exemptions are
not compatible with many training activities, due to their ongoing or recurring nature.
Instead, DOD favors broader exemptions that would allow it to conduct training
exercises and other readiness activities without restriction or delay. However,
environmental organizations have opposed broader exemptions for military readiness
activities and claim that existing exemptions are sufficient to accommodate combat
training needs.
The cumulative effect of environmental requirements on military readiness
capabilities is difficult to determine due to the lack of a system to comprehensively
track individual cases in which training has been restricted or compromised. The
General Accounting Office (GAO) has found that DOD’s readiness reports do not
indicate the extent to which environmental requirements restrict combat training
activities, and that such reports indicate a high level of readiness overall.15 However,
GAO noted individual instances of environmental encroachment at numerous
military installations, and in light of this fact, recommended that DOD’s reporting
system be improved to more accurately identify any shortfalls in training that might
be attributed to restrictions imposed by environmental requirements.
The House and Senate Armed Services Committees, the House Government
Reform Committee, and the Senate Environment and Public Works Committee, have
held oversight hearings during the 107th Congress to examine the issue of
environmental encroachment, and debate will likely continue as DOD attempts to
balance its readiness needs with requirements to comply with environmental laws.
14 Specific exemptions from compliance requirements for federal facilities are included in
the Clean Air Act [42 USC 7418(b)], Clean Water Act [33 USC 1323(a)], Comprehensive
Environmental Response, Compensation, and Liability Act [42 USC 9620(j)], Endangered
Species Act [16 USC 1536(j)], Noise Control Act [42 USC 4903], Resource Conservation
and Recovery Act [42 USC 6961(a)], and Safe Drinking Water Act [42 USC 300(j)(6)]. For
additional information, refer to CRS Report RS21217, Exemptions for Military Activities
in Federal Environmental Laws, by Robert Meltz.
15 General Accounting Office. Military Training: DOD Needs a Comprehensive Plan to
Manage Encroachment on Training Ranges. GAO-02-727T. May 2002. p. 2.
CRS-12
The House included broader environmental exemptions from certain requirements
under the Endangered Species Act, the Migratory Bird Treaty Act, and the
Wilderness Act in passing the National Defense Authorization Act for FY2003 (H.R.
4546), discussed on page 19. DOD had requested the exemptions related to the
protection of endangered species and migratory birds as part of a Readiness and
Range Preservation Initiative submitted to Congress in April 2002.16
Department of Energy
In the late 1980s, the United States ceased its production of radioactive
materials used in the construction of nuclear weapons due to military projections that
the nuclear weapons stockpile was sufficient to protect national security and respond
to future threats. However, environmental problems associated with producing and
storing these radioactive materials continue to pose a risk to human health and safety
today. Since the beginning of the U.S. atomic energy program, DOE and its
predecessors have been responsible for managing defense nuclear weapons and
related waste. In later years, DOE expanded its efforts to include the environmental
restoration of radioactive sites, and those with other hazardous contamination, to
ensure their safety for future uses. In 1989, the Bush Administration established an
Environmental Management Program within DOE to consolidate the agency’s efforts
in cleaning up contamination from defense nuclear waste, as well as waste from
civilian nuclear energy research.17
The following sections discuss program oversight, cleanup status and costs,
appropriations, and related topics such as the selection of Yucca Mountain for an
underground nuclear waste repository, and the cleanup of smaller radioactive waste
sites that were transferred from DOE to the Army Corps of Engineers.
Oversight of Cleanup and Waste Management Activities
The Atomic Energy Act of 1954 is the primary authority governing the
management of defense nuclear waste. The law requires DOE to safely store,
process, transport, and dispose of radioactive and other hazardous waste resulting
from the production of defense nuclear materials.18 Waste disposal typically involves
cleanup actions, such as the decontamination of buildings and structures and the
removal of contaminated soil. DOE is also subject to requirements under various
federal environmental laws in carrying out its responsibilities under the Atomic
Energy Act. CERCLA and RCRA are the two main federal environmental statutes
16 In response to concerns over the perceived increase in training restrictions imposed by
environmental requirements, DOD submitted a Readiness and Range Preservation Initiative
to Congress which proposed broader exemptions for military readiness activities from
certain requirements under the Clean Air Act, Comprehensive Environmental Response,
Compensation, and Liability Act, Endangered Species Act, Marine Mammal Protection Act,
Migratory Bird Treaty Act, and Solid Waste Disposal Act.
17 For additional information, refer to DOE’s web site at [http://www.em.doe.gov].
18 42 U.S.C. 2121
CRS-13
that apply to cleanup activities at defense nuclear waste sites. CERCLA primarily
applies to cleanup actions at inactive waste sites which present the highest risk of
exposure and are listed on the NPL. RCRA requires DOE to clean up contamination
at sites with active solid and hazardous waste disposal facilities for which an
operating permit has been issued under RCRA. EPA and the states are responsible
for conducting oversight of DOE’s actions in order to determine compliance with
environmental laws and assess fines and penalties if violations occur. Generally,
EPA takes the lead in performing oversight of cleanup actions at DOE sites required
under CERCLA, and EPA delegates federal authority to the states for conducting
oversight of actions required under RCRA. DOE has completed compliance
agreements with EPA and the states for each of its cleanup and waste management
sites, which specify schedules and time frames for specific response actions.19
Cleanup Status and Costs
The pace and cost of cleanup at defense nuclear waste sites has been a long-
standing issue. GAO has conducted numerous audits of DOE’s Environmental
Management Program, which in many cases have assessed cleanup schedules and
cost estimates as being overly optimistic. GAO’s assessment of DOE’s 1998 strategy
to accelerate cleanup concluded that cleanup schedules and estimates of funding
needs are sometimes inaccurate because they are based on project assumptions that
may change, such as the capacity to pack and ship vast quantities of waste for
disposal, cleanup levels that have yet to be finalized under regulatory agreements, the
types of waste management and cleanup technologies that will be used, and the
exclusion of additional costly activities related to cleanup.20
As indicated in Figure 3, DOE reports that there are 114 large geographic sites
where the past production of atomic materials used to construct nuclear weapons led
to severe contamination.21 These sites encompass a total land area of over 2 million
acres, which is equal to the States of Rhode Island and Delaware combined. As of
the end of FY2001, DOE reports that it had completed all response actions at 74
sites, at a cost of over $60 billion, and that response actions were underway at the
remaining 40 sites.22 However, the sites that have been cleaned up are relatively
small and are among the least hazardous, and the sites where cleanup was underway
contain some of the most severely contaminated areas. DOE currently estimates that
cleanup at the remaining 40 sites may take 70 years to complete, and that total
19 For information on each compliance agreement, refer to DOE’s web site at
[http://www.em.doe.gov/compliance.html].
20 General Accounting Office. Nuclear Waste: DOE’s Accelerated Cleanup Strategy Has
Benefits But Faces Uncertainties. RCED-99-129. April 1999. 21 p.
21 Department of Energy. A Review of the Environmental Management Program. February
2002. p. ES-1.
22 Ibid. One of the remaining sites, the Waste Isolation Pilot Plant in New Mexico, is a
waste disposal facility rather than a cleanup site that requires response actions. Based on
recent projections, it will remain active and receive waste shipments through 2039.
CRS-14
cleanup costs may range from $220 billion to $300 billion if program reforms are not
initiated, substantially higher than the estimate of $147 billion made in 1998.23
Figure 3. Cleanup Status at DOE Environmental Restoration and
Waste Management Sites as of September 30, 2001
Total Number of Sites = 114
35.1%
Response in Progress
40 Sites
Response Complete
74 Sites
64.9%
Prepared by the Congressional Research Service using data from the Department of Energy,
A Review of the Environmental Management Program,
February 2002, p. ES-1.
Appropriations Account Structure
Congress authorizes funding for DOE’s defense environmental restoration and
waste management activities in the annual authorization bill for National Defense,
and appropriates funding for them in the annual appropriations bill for Energy and
Water Development. Congress has traditionally provided this funding under three
centralized accounts. First, the Defense Environmental Restoration and Waste
Management Account funds cleanup and waste management activities at nuclear
weapons sites where all response actions are projected to continue beyond 2006.
Second, the Defense Facilities Closure Projects Account supports cleanup and waste
management activities at sites where all response actions are scheduled to be
complete by the end of 2006. Third, the Defense Environmental Management
Privatization Account reserves funding for cleanup projects that have been completed
under “privatization” contracts.24
23 Ibid.
24 Under privatization contracts, a private entity is responsible for financing the entire cost
of a cleanup project, and is not paid by DOE until the project is completed and performed
according to contractually specified requirements. This type of contract differs from the
traditional approach of paying a contractor a fixed amount upfront and offering additional
(continued...)
CRS-15
The Administration requested a total of $6.91 billion for FY2003 to support
DOE’s defense environmental restoration and waste management activities, nearly
$420 million more than the FY2002 funding level of $6.49 billion. Consideration
of appropriations for FY2003 is not yet complete. (Refer to page 27 for further
discussion.) Of the $6.91 billion request, about $4.56 billion would be reserved for
the Defense Environmental Restoration and Waste Management Account, $1.09
billion would be set aside for the Defense Facilities Closure Projects Account, and
$158 million would be allocated to the Defense Environmental Management
Privatization Account. The remainder of $1.10 billion would be reserved for a
proposed Environmental Management Cleanup Reform Account that would focus on
risk reduction to improve program efficiency and reduce costs. In February 2002, the
Administration initially requested $800 million for the cleanup reform account, but
submitted a budget amendment in August 2002 which included an additional $300
million, increasing the total request for the proposed account to $1.10 billion.
Many concerns have been raised about the Administration’s cleanup reform
initiative. DOE budgeted the majority of the funding for the proposed account by
decreasing support for cleanup at sites that are funded under the Defense
Environmental Restoration and Waste Management Account. Under this approach,
funding would be restored at these sites only if compliance agreements with EPA and
the states are re-negotiated to accelerate cleanup schedules and project milestones.
DOE contends that many of the requirements under its existing compliance
agreements are too costly, ineffective, and unnecessarily time-consuming, and that
its agreements need to be re-examined to explore ways to increase the pace of
cleanup and reduce costs. Questions have been raised as to whether EPA and the
states might agree to weaker cleanup standards, rather than face the possibility of
losing funding that site managers need to fulfill existing agreements. To date, DOE
has signed letters of intent with EPA and state regulators to accelerate cleanup at the
following sites: the Hanford site in Washington, the Oak Ridge site in Tennessee, the
Idaho National Engineering and Environmental Laboratory, the Nevada Test Site, the
Savannah River site in South Carolina, the Pantex site in Texas, and the Los Alamos
National Laboratory and Sandia National Laboratories in New Mexico.
The largest portion of the cleanup reform funds would be allocated to the
Hanford site, which is the largest and most severely contaminated of all of DOE’s
sites, and is estimated to be the most costly to clean up. Of the cleanup reform
request, approximately $433 million, nearly 40%, would be allocated to accelerating
cleanup at the Hanford site, increasing its funding to over $2 billion in FY2003.
Under the letter of intent to accelerate cleanup at the site, DOE, EPA, and the State
of Washington have agreed to work together to complete cleanup at Hanford 35 to
45 years sooner than the current estimated completion date of 2070. Subsequently,
DOE has completed a performance management plan that outlines six strategic
initiatives to achieve this goal. However, the compliance agreement for the Hanford
24 (...continued)
cash incentives to encourage the completion of a project within a certain time frame.
Privatization contracts have the potential to provide the contractor with a greater incentive
to control costs, work more efficiently, and finish a project successfully, since payment is
not rendered until performance is complete and the cleanup objective has been achieved.
CRS-16
site has not been re-negotiated thus far, and DOE remains legally bound to meeting
existing cleanup schedules and other regulatory requirements. Questions have been
raised as to whether DOE will seek to expedite cleanup by leaving more radioactive
waste at the site than previously planned. State officials want DOE to remove nearly
all of the high-level radioactive waste from 177 underground tanks. Environmental
organizations and others have expressed concerns that the “reform” agreement would
allow more waste to be stabilized, or “grouted,” in the tanks and left in place.
The Subcommittee on Oversight and Investigations of the House Committee on
Energy and Commerce held a hearing on DOE’s cleanup reform initiative on July 19,
2002. Jesse Roberson, Assistant Secretary for Environmental Management, testified
that the objective of the cleanup reform initiative is to identify and implement more
risk-oriented and efficient cleanup approaches, and that the intent is not to weaken
any of DOE’s compliance agreements. The General Accounting Office (GAO)
testified on the status of compliance agreements with EPA and the states at each
nuclear waste cleanup site, and indicated that DOE faces challenges in developing
and implementing a risk-based method to prioritize cleanup activities due to failed
attempts to do so in the past. GAO also indicated that DOE’s reform initiative in
some cases could involve “potential changes in technology or approach that would
result in leaving more of the waste on site than currently planned and thus could
significantly reduce cleanup costs. In other cases, it could allocate funding using a
greater emphasis on risk reduction, which could shift funding among sites.”
Representatives from the States of Washington, Idaho, and Tennessee indicated that
the letters of intent to re-negotiate compliance agreements in their states would not
result in weakened cleanup standards, but would provide a framework for
cooperation among the parties involved to establish new cleanup goals.
Yucca Mountain
A prominent issue related to DOE’s Environmental Management Program is the
perceived need for a long-term centralized repository for high-level defense nuclear
waste. While the Waste Isolation Pilot Plant in New Mexico serves as a centralized
repository for low-level and transuranic (plutonium-contaminated) defense nuclear
waste, high-level waste is currently stored at individual sites. Many interests have
argued that centrally storing high-level waste in a location that lacks a potential
pathway for immediate exposure would be safer and more secure from potential
terrorist threats. In response to such concerns, the Nuclear Waste Policy Act of 1982,
as amended in 1987, required DOE to study the suitability of Yucca Mountain in
Nevada for constructing an underground geological repository for high-level defense
nuclear waste, as well as civilian radioactive waste generated by nuclear power
plants. The federal government and the nuclear power industry contribute funding
to support the study and development of such a repository.
The State of Nevada has strongly opposed the selection of Yucca Mountain for
an underground repository due to numerous safety concerns, such as the possibility
of seismological disturbances and underground flooding, and the potential for
groundwater contamination over time. DOE contends that scientific evidence
indicates that the conditions at Yucca Mountain would likely be suitable for long-
term underground waste storage and that efforts to study the site should continue.
Environmental organizations have opposed the development of a centralized
CRS-17
repository due to concerns over the safety of transporting high-level radioactive waste
across many states to one location and the potential for terrorist threats, along with
environmental concerns about the site that are similar to those of the State of Nevada.
Taking these concerns into consideration, President Bush recommended Yucca
Mountain for site selection on February 8, 2002. However, Nevada Governor Kenny
Guinn submitted a notice of disapproval to Congress on April 8, 2002, as permitted
under the Nuclear Waste Policy Act. The House passed a resolution (H.J.Res. 87)
on May 8, 2002, to overturn the “state veto”, and the Senate passed H.J.Res. 87 on
July 9, 2002. The President signed H.J.Res. 87 into law (P.L. 107-200) on July 23,
2002, clearing the way for DOE to proceed with its plans to prepare and submit a
license application to the Nuclear Regulatory Commission for the construction of a
nuclear waste repository at Yucca Mountain. DOE plans to submit a license
application in 2004, and expects to begin receiving waste shipments in 2010. Despite
congressional approval, opponents of the development of Yucca Mountain may
attempt to halt or delay the project through other avenues, including the
appropriations process, oversight of the Nuclear Regulatory Commission’s review
of the license application for the site, and litigation over numerous aspects of the site
characterization and development process.25
Formerly Utilized Sites Remedial Action Program
In addition to the federal facilities that are being cleaned up under DOE’s
Environmental Management Program, there are other smaller sites contaminated with
low-level radiation from the processing and storage of uranium and thorium ores
during the early years of the U.S. nuclear weapons program from the 1940s to the
1960s. The majority of these sites were owned and operated by private contractors,
and cleanup at these sites is performed under the Formerly Utilized Sites Remedial
Action Program (FUSRAP). The Atomic Energy Commission, DOE’s predecessor
agency, established the program in 1974 under authorities provided in the Atomic
Energy Act, and actual cleanup began in 1979. In response to concerns over the pace
and cost of cleanup, Congress included provisions in the Energy and Water
Development Appropriations Act for FY1998 (P.L. 105-62) to transfer the FUSRAP
program to the Army Corps of Engineers. This transfer was considered potentially
advantageous since the Corps had extensive experience in cleaning up hazardous
waste at former defense sites that were in operation during this same time period.
The Energy and Water Development Appropriations Act for FY1999 (P.L. 105-
245), requires the Corps to follow CERCLA’s requirements in cleaning up sites
under the program. DOE collaborates with the Corps to determine the eligibility of
new sites, since it must perform the historical research to ascertain whether such sites
were part of the early nuclear weapons program. Once all response actions at a site
are complete, the Corps is responsible for monitoring and maintaining cleanup
remedies for two years. After that time, the site is transferred back to DOE for
continuing any necessary monitoring and maintenance.
25 For further information on this issue, refer to CRS Issue Brief IB92059, Civilian Nuclear
Waste Disposal, by Mark Holt.
CRS-18
As indicated in Figure 4, the Corps reported that 28 sites had been cleaned up
under the program as of the end of FY2001, and cleanup was planned or ongoing at
20 sites in 8 states.26 Before FY1998, cleanup at these sites was funded out of DOE’s
Defense Environmental Restoration and Waste Management Account, and the prior
Atomic Energy Defense Activities Account. Since the creation of the FUSRAP
account and transfer of the program to the Corps in FY1998, Congress has provided
approximately $140 million in annual funding, and the Administration requested
$141 million for FY2003. Consideration of appropriations for FY2003 is not yet
complete. (Refer to page 28 for further discussion.)
Figure 4. Cleanup Status under the Formerly Utilized Sites
Remedial Action Program as of September 30, 2001
Total Number of Sites = 48
41.7%
Response in Progress
20 Sites
Response Complete
28 Sites
58.3%
Prepared by the Congressional Research Service using data from the U.S. Army Corps of
Engineers. History of the Formerly Utilized Sites Remedial Action Program: Fact Sheet.
October 2001. p. 2.
Authorization Legislation in the
Second Session of the 107th Congress
While two of the three defense-related appropriations bills for FY2003 have
been signed into law (see page 24), consideration of legislation to authorize funding
for these programs is still underway. The House Armed Services Committee
reported the “Bob Stump National Defense Authorization Act for FY2003" (H.R.
4546, H.Rept. 107-436) on May 3, 2002. The House passed H.R. 4546, as amended,
on May 10, 2002. The Senate Armed Services Committee reported its version of the
26 These states include Connecticut, Maryland, Massachusetts, Missouri, New Jersey, New
York, Ohio, and Pennsylvania. For further information, refer to the Army Corps of
Engineers web site at [http://www.hq.usace.army.mil/cecw/fusrap/index.htm].
CRS-19
bill (S. 2514, S.Rept. 107-151) on May 15, 2002. The Senate passed S. 2514, as
amended, on June 27, 2002, and incorporated this measure in H.R. 4546 as an
amendment. Conference proceedings have been held to resolve the differences
between the two bills, but an agreement has not been reached to date.
Both bills would authorize funding for defense-related environmental activities.
The major environmental issues to be resolved in conference include: differences in
funding levels for the cleanup of environmental contamination, whether to adopt a
House proposal to exempt military readiness activities from certain environmental
requirements, and the extent of support to provide for the Administration’s reform
initiative to address the slow pace of cleanup at defense nuclear waste sites. Each
authorization bill is discussed below.
H.R. 4546
As passed, H.R. 4546 would authorize the requested amount of $1.28 billion for
environmental cleanup at current and former military installations. The bill also
would authorize the requested amount of $25 million for the Kaho’olawe Island
Conveyance, Remediation, and Environmental Restoration Trust Fund. DOD ceased
its use of Kaho’olawe Island as a training range in 1995 and returned the land to the
State of Hawaii. The trust fund provides support for environmental cleanup and the
removal of UXO and other munitions. Related to the cleanup of UXO in general, the
bill also would require DOD to designate a single point of contact for policy and
budgeting issues involved in characterizing, remediating, and managing UXO and
other munitions at all defense sites.
For DOE’s management of defense nuclear waste and cleanup of contaminated
nuclear weapons sites, H.R. 4546 would authorize a total of $6.59 billion, about $320
million less than the amended request of $6.91 billion. The House authorization of
$6.59 billion includes the Administration’s initial request of $800 million for DOE’s
proposed cleanup reform account. The bill would direct DOE to establish a program
to distribute the cleanup reform funds to sites that have completed plans for
accelerating the reduction of environmental risk and lowering cleanup costs. The bill
also would require DOE to submit a report to Congress, along with its budget
justification materials for FY2004, which examines the progress of efforts to
streamline environmental management activities and improve program efficiency.
The House passed H.R. 4546 prior to the Administration’s submission of a budget
amendment in August, which included an additional $300 million for the proposed
cleanup reform account. Whether to increase the authorization to accommodate the
amended request is an issue to be resolved in conference.
H.R. 4546 also includes provisions which would exempt combat training
activities from certain environmental requirements that DOD reports have restricted
military readiness capabilities. As discussed on page 12, DOD requested exemptions
from the Endangered Species Act, the Migratory Bird Treaty Act, and several other
federal environmental laws as part of its Readiness and Range Preservation Initiative.
However, the House only included exemptions from the Endangered Species Act and
the Migratory Bird Treaty Act in passing H.R. 4546, as well as a targeted exemption
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from the Wilderness Act for military readiness activities at the Utah Test and
Training Range. Each environmental exemption provision is examined below.27
Migratory Bird Treaty Act Exemption. Section 311 of H.R. 4546 would
amend the Migratory Bird Treaty Act of 1918 to make it lawful for DOD to “take”
migratory birds during a “military readiness activity”. Readiness activities are
defined as all training activities and military operations related to combat and the
testing of equipment for combat use. The Migratory Bird Treaty Act was established
to control the mass slaughter of migratory birds for commercial purposes and to
promote the sustainable management of such birds.28 The law authorizes the
Secretary of the Interior to regulate the taking of migratory birds, but current
regulations may only authorize permits for the intentional taking of migratory birds
for specific purposes, such as hunting within designated seasons as well as numerous
other activities. A recent federal court ruling indicated that the Navy had violated the
Migratory Bird Treaty Act by incidentally taking migratory birds without a permit
during training exercises near Guam. House report language indicates that the
exemption provision is intended to address the lack of permit authorization for
incidental takings, so that essential training exercises may proceed. However, it
appears that bill language would not authorize the issuance of permits, but more
broadly would state that the part of the Migratory Bird Treaty Act that articulates
unlawful behavior does not apply to a military readiness activity.
Endangered Species Act Exemption. Section 312 of H.R. 4546 would
amend the Endangered Species Act to prohibit the designation of new critical habitat
areas on military installations for which an Integrated Natural Resource Management
Plan (INRMP) has been approved under the Sikes Act, if the plan “addresses special
management considerations or protection”.29 DOD reports that it has completed
INRMPs for 349 installations, and that 30 more plans are under development. These
plans would not necessarily provide the same level of protection for endangered or
threatened species as critical habitat designations, and enforcement of management
plans could be an issue. However, the bill would not exempt DOD from other
requirements under the Endangered Species Act, and any actions that would result
in the extinction or taking of endangered or threatened species would still be
prohibited. The bill also would require the consideration of the impacts of
designating new critical habitat areas on national security, when considering such
designations in any location nationwide. Presently, economic impact is the only
category of impact that must be considered. Under current law, the Endangered
27 For additional information, refer to CRS Report RL31415, The Endangered Species Act,
Migratory Bird Treaty Act, and Department of Defense Readiness Activities: Current Law
and Legislative Proposals, by Pamela Baldwin.
28 16 U.S.C. 703 et. seq.
29 As amended in 1997, the Sikes Act (16 U.S.C. 670a) requires DOD to develop an INRMP
for each military installation in the United States, unless the Secretary of Defense
determines that the absence of significant natural resources on a particular installation
makes the preparation of such a plan inappropriate. The law requires DOD to cooperate
with the U.S. Fish and Wildlife Service and state fish and wildlife agencies in the
preparation of these plans to reach a mutual agreement on the conservation, protection, and
management of fish and wildlife resources.
CRS-21
Species Act provides for an exempting procedure for reasons of national security (16
U.S.C. 1536j), but this authority has not been used to date.
Wilderness Act Exemption. Title XIV of H.R. 4546 would specify that the
Wilderness Act, or other land management laws generally applicable to federally
designated wilderness areas or wilderness study areas, shall not restrict or preclude
military overflights, designation of flight paths and training routes, emergency access
and response activities, and control or restriction of public access in the Utah Test
and Training Range. While the Wilderness Act does not specifically prohibit
overflights or other readiness activities, it does define wilderness as lands upon
which the imprint of man’s work is “substantially unnoticeable” and which has
“outstanding opportunities for solitude”. In 1990, the Bureau of Land Management
recommended approximately 200,000 acres of land within the Utah Test and
Training Range for federal designation as a wilderness study area.30 Subsequently,
there has been increasing public opposition to military overflights and related training
exercises within this portion of the range due to the intrusion of noise and other
disturbances. DOD has expressed concerns that its readiness capabilities have been
restricted by threatened litigation over the lawfulness of conducting military training
exercises on or near wilderness study areas, when such activities interfere with the
solitude nature of the wilderness experience. House report language indicates that
the Wilderness Act provisions in H.R. 4546 are intended to protect DOD from such
challenges and preserve the capacity to conduct training exercises within the range.
Title XIV also includes provisions that would designate certain federal lands in
Box Elder County, Utah, as the Pilot Range Wilderness Area, and in Tooele County,
Utah, as the Cedar Mountain Wilderness Area. These lands are part of the Bureau
of Land Management’s wilderness inventory, and as such, are described as having
significant wilderness characteristics due to their remoteness and lack of
development. Thus far, neither area has been designated as federally protected
wilderness under the Wilderness Act. These lands are located near the Utah Test and
Training Range, and DOD has expressed concerns over the need for continued access
to the airspace over these areas to conduct overflights and related training activities.
As passed, H.R. 4546 would extend the exemption from the Wilderness Act for
military readiness activities to these areas as well. The House Committee on
Resources reported legislation (H.R. 2488, H.Rept. 107-269) on November 5, 2001,
which proposed to designate the Pilot Range lands as federally protected wilderness,
and included exemptions for military readiness activities that are similar to those in
H.R. 4546. Stand alone legislation regarding the Cedar Mountain area has not been
introduced to date.
30 In various laws, Congress has directed federal land management agencies to study the
wilderness potential of certain types of areas and of specific locations. Areas under review,
referred to as wilderness study areas, are generally to be managed to preserve their
wilderness characteristics, and are protected under the Wilderness Act, until Congress
decides whether to include them in the National Wilderness Preservation System. The
Federal Land Policy and Management Act of 1976 directed the Bureau of Land Management
to review the wilderness potential of its roadless areas, and most of its recommendations are
still pending. For further information, refer to CRS Report RS21052, Wilderness Study
Areas and Release Language for BLM Lands, by Ross W. Gorte.
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S. 2514
As passed, S. 2514 would authorize a total of $1.32 billion for environmental
cleanup at current and former military installations, $40 million more than the House
proposed and the Administration requested. The increase would be devoted to
FUDS sites. The pace of cleanup at these sites has been an ongoing concern, since
cleanup activities have historically proceeded more slowly than at currently active
installations. The bill also would authorize $25 million for the Kaho’olawe Island
Conveyance, Remediation, and Environmental Restoration Trust Fund, the same as
the House. The original authorization for the cleanup of UXO on Kaho’olawe Island
was for 10 years, and this authorization expires in FY2003. S. 2514 would extend
this authority until 100% of the land area is inspected and assessed, 75% of the
surface area is generally cleared, and 25% of the surface area is adequately cleared
to be suitable for specific land uses, including human habitation. This provision
would supercede the original cleanup agreement, which requires that 100% of the
surface area, instead of 75%, would be generally cleared. Report language states that
the original goal was based on insufficient data and that recent information indicates
a need for modifying it to reflect the extent to which cleanup can realistically be
accomplished.
S. 2514 also would authorize a total of $6.87 billion for DOE’s management of
defense nuclear waste and cleanup of contaminated nuclear weapons sites, $275
million more than the House amount of $6.59 billion and about $40 million less than
the amended request of $6.91 billion. Of the Senate amount, $1 billion would be
authorized for DOE’s proposed cleanup reform account, $200 million more than the
House authorization. Like the House, the Senate passed S. 2514 prior to the
Administration’s submission of a budget amendment in August, which included an
additional $300 million for the cleanup reform account, increasing the total request
for the account to $1.1 billion. Whether to increase the authorization to fully
accommodate the amended request is an issue to be resolved in conference.
Regarding the Administration’s cleanup reform initiative, report language
indicates the concern of the Senate Armed Services Committee that the
Administration has not provided any details on how the goals of accelerated cleanup
and reduced costs would be achieved, or how the funds would be spent. In response
to these concerns, S. 2514 would require DOE to establish criteria for selecting the
sites that would most benefit from this funding. If DOE does not establish such
criteria, the $1 billion in reform funds would be distributed among all sites according
to the same proportion as allocated in FY2002. As discussed on page 15, DOE has
signed letters of intent with EPA and state regulators to accelerate cleanup at several
sites. It is unclear whether these sites would be required to undergo the selection
process again if the Senate provisions were enacted.
In addition to authorizing funding, S. 2514 includes several other environmental
provisions that would:
! authorize the Secretary of Defense to enter into cooperative
agreements, lasting up to two years, with federal, state, and local
agencies, and Indian Tribes, for providing services to carry out
environmental cleanup activities;
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! clarify the authority of the Secretary of Defense to carry out
construction projects necessary for environmental response actions,
and to fund such projects out of the Defense Environmental
Restoration Accounts;
! require the Secretary of Defense to establish a program for the
acquisition of procurement items that are “environmentally
preferable” or constructed out of “recovered materials”;
! clarify the permanent procurement authority of the Secretary of
Defense to enter multi-year contracts for environmental remediation
services; and
! authorize the Secretary of Defense to conduct a cooperative program
with countries in the Arctic and Pacific regions, focusing primarily
on technology projects and activities related to addressing
radiological threats and contamination.
S. 2514 does not include the provisions of H.R. 4546 that would exempt DOD
from certain environmental requirements under the Endangered Species Act, the
Migratory Bird Treaty Act, or the Wilderness Act, nor does it include exemptions
from other environmental laws that DOD had requested as part of its Readiness and
Range Preservation Initiative, discussed on page 12. The Senate Armed Services
Committee referred DOD’s initiative to the Senate Environment and Public Works
Committee, which has jurisdiction over the environmental laws that would be
amended. On July 9, 2002, the Senate Environment and Public Works Committee
held a hearing on DOD’s proposed initiative, which was included in the
Administration’s FY2003 defense authorization bill (S. 2225). Representatives of
the Air Force, Army, Navy, and Marine Corps testified that DOD has not requested
broad exemptions from all environmental laws, but argued that clarifications of the
applicability of certain requirements to routine training operations are necessary to
ensure that readiness capabilities are not prohibited or restricted.
Chairman James Jeffords questioned the need for such clarifications since many
environmental laws already contain environmental exemptions for the purposes of
national security. Chairman Jeffords also noted the lack of information to
demonstrate the need for further environmental exemptions, and due to this reason,
stated his opposition to the adoption of the House’s environmental exemptions in the
conference on H.R. 4546. Senator Joseph Lieberman, who is on the conference
committee on H.R. 4546, also expressed his opposition to the House’s environmental
exemptions during the July 9th hearing.
While S. 2514 does not include the environmental exemptions proposed by the
Administration, the bill does address two conservation-related elements that DOD
had requested under its Readiness and Range Preservation Initiative. First, a total of
$20 million would be authorized for a Range Enhancement Initiative Fund to permit
the Secretary of Defense to enter agreements with private entities to acquire interests
in lands adjacent to military installations. Such lands would be used to create a
buffer zone between military training areas and surrounding civilian populations.
Senate report language indicates that these zones also may help to reduce the burden
CRS-24
on DOD to provide essential habitat for endangered and threatened species that have
been forced onto military lands due to surrounding urban development and
population growth. Second, S. 2514 would authorize the Secretary of Defense to
convey surplus military property to state or local governments, or private entities, for
promoting the conservation of open space and natural resources.
Appropriations in the Second Session
of the 107th Congress
In addition to the authorization legislation discussed above, consideration of
appropriations for national defense programs for FY2003 is nearly complete. The
President has signed the Department of Defense Appropriations Act for FY2003
(P.L. 107-248, H.R. 5010). This law provides funding for environmental cleanup at
current and former military installations, as well as numerous other environmental
activities. The President also has signed the Military Construction Appropriations
Act for FY2003 (P.L. 107-249, H.R. 5011). This law provides funding for the
cleanup of environmental contamination at base closure sites.
Other defense-related appropriations bills are still pending. The House and
Senate Appropriations Committees have reported their respective versions of the
Energy and Water Development Appropriations Act for FY2003 (H.R. 5431 and S.
2784). These bills propose funding, although in different amounts, for DOE’s
defense nuclear waste management and cleanup activities. Floor action has not
occurred on either bill to date. The new fiscal year began on October 1, 2002, and
a continuing resolution (P.L. 107-244) provides funding through November 22, 2002,
at the same level as enacted for FY2002.
In addition to funding for FY2003, supplemental appropriations for FY2002
have been signed into law, which would have provided funding to enhance security
and safeguards at defense nuclear waste sites, if the President had requested such
funds. Further discussion of each law and bill is provided below.
Department of Defense
The House Appropriations Committee reported the Department of Defense
Appropriations Act for FY2003 (H.R. 5010, H.Rept. 107-532) on June 25, 2002.
The House passed H.R. 5010, as amended, on June 27, 2002. The Senate
Appropriations Committee reported its version of the bill (S.Rept. 107-213) on July
18, 2002. The Senate passed H.R. 5010, as amended, on August 1, 2002. A House-
Senate conference committee filed its report on H.R. 5010 (H.Rept. 107-732) on
October 9, 2002. The House passed the conference agreement on October 10, 2002,
and the Senate passed it on October 16, 2002. The President signed H.R. 5010 into
law (P.L. 107-248) on October 23, 2002. As discussed earlier, legislation to
authorize funds appropriated by this law is still pending in conference.
P.L. 107-248 provides specific funding levels for environmental cleanup
activities, but as in defense authorization legislation, there are no comprehensive
line-item accounts for DOD’s other environmental activities, including compliance,
CRS-25
pollution prevention, conservation, and environmental technology. DOD will
determine its FY2003 budget for these programs mostly from funds appropriated to
the accounts for Operation and Maintenance, Procurement, and Research and
Development. The final amounts allocated for these activities in FY2003 will be
indicated in the Administration’s budget request for FY2004, which will include
funding data for the previous fiscal year.
P.L. 107-248 provides a total of $1.31 billion for the cleanup of environmental
contamination at current and former military installations, about $40 million more
than the FY2002 funding level of $1.27 billion. The House had proposed $1.28
billion, the same as requested, and the Senate had proposed $1.32 billion. The
increase above the House amount and the Administration’s request will be devoted
to increasing the pace of cleanup at FUDS sites, which has been criticized for
proceeding more slowly than cleanup at currently active installations. The law
provides an additional $75 million to clean up unexploded ordnance on Kaho’olawe
Island in Hawaii. The House had proposed $25 million for this activity, the same as
the Administration requested, whereas the Senate had proposed $80 million. The law
provides another $10 million to mitigate the environmental impacts of military
activities on Indian lands, the same as the House and Senate proposed and the
Administration requested.
Related to cleanup funding, the law limits the use of “indefinite
delivery/indefinite quantity” contracts to no more than 35% of the total funding
obligated for environmental cleanup projects in FY2003. Both the House and Senate
had proposed this requirement in their respective bills. A similar provision regarding
the use of such contracts was included in the Department of Defense Appropriations
Act for FY2002 (P.L. 107-117).
Additionally, the law includes Senate bill language to prohibit the use of
FY2003 funds to “convert” the 939th Combat Search and Rescue Wing of the Air
Force Reserve until the Secretary of the Air Force certifies to Congress that certain
conditions are met. Among these conditions are the requirement that any new aircraft
assigned to the unit must comply with local environmental and noise standards.
The law does not include two other environmental provisions, one proposed by
the Senate, and the other by the House. First, the law does not include the Senate
provision that would have provided up to $2.5 million from the Operation and
Maintenance Account for the Navy to dispose of sediments at inland sites from
dredging operations at Earle Naval Station in New Jersey. Sediments from dredging
operations are typically disposed of in the ocean, due to the comparatively high costs
of inland disposal. However, interest in inland disposal of sediments has been
increasing due to concerns over the potentially adverse effects of ocean disposal on
coastal water quality. Second, the law does not include the House provision that
would have established a commission to assess the “adverse impacts” of
encroachment factors, including requirements of environmental laws, on military
training. As discussed on page 10, the extent to which environmental requirements
affect military readiness capabilities has become a prominent issue.
CRS-26
Military Construction
The House Appropriations Committee reported the Military Construction
Appropriations Act for FY2003 (H.R. 5011, H.Rept. 107-533) on June 25, 2002.
The House passed H.R. 5011, as amended, on June 27, 2002. The Senate
Appropriations Committee approved its version of the bill (S. 2709) on June 27,
2002, and filed its report (S.Rept. 107-202) on July 3, 2003. The Senate inserted the
text of S. 2709 into H.R. 5011 as an amendment, and passed H.R. 5011 on July 18,
2002. A House-Senate conference committee filed its report on H.R. 5011 (H.Rept.
107-731) on October 9, 2002. The House passed the conference agreement on
October 10, 2002, and the Senate passed it on October 11, 2002. The President
signed H.R. 5011 into law (P.L. 107-249) on October 23, 2002.
The law allocates $561 million to the BRAC account for base realignment and
closure activities in the United States, about $72 million less than the FY2002
funding level of $633 million. The House had proposed $545 million, the same as
the Administration’s request, while the Senate had proposed $645 million. Funding
under this account includes support for the cleanup of environmental contamination
in order to prepare realigned or closed properties for transfer to other uses. As in
FY2002, the law does not place a limitation on how much funding can be spent on
environmental cleanup. Prior to FY2002, Congress had traditionally placed a
limitation on environmental cleanup funding under the BRAC account. The
departure from this practice is intended to provide DOD with greater flexibility in
allocating funding for cleanup needs. The Administration estimates that it will need
$520 million to support cleanup activities at base closure sites in FY2003, about $74
million less than the amount of $594 million obligated for cleanup in FY2002.
Of the $561 million that is provided in P.L. 107-249 for the BRAC account, a
total of $20 million would be reserved for a new Environmental Cleanup
Acceleration Initiative to address the backlog of critical environmental remediation
requirements at bases that have been closed or realigned. The funding for the
initiative will be allocated accordingly: $11 million to the Navy, $6 million to the Air
Force, and $3 million to the Army. The Senate had proposed a total of $100 million
for the cleanup initiative.
Related to cleanup funding, the law includes Senate bill language which directs
DOD to accurately reflect the anticipated costs of environmental restoration, waste
management, and compliance activities in future budget requests for base closure
activities. This provision was included to address the issue of funding needs for
environmental activities that DOD had not adequately identified in previous budget
submissions.
In addition to specifying funding for base closure activities, the law includes
Senate bill language which would address environmental cleanup expenses
associated with the costs for certain types of military housing. The law limits the
cost of maintaining and repairing general and flag officer quarters to $35,000 per unit
annually, unless Congress is notified 30 days in advance that costs will exceed this
amount. However, if the additional costs are solely for environmental cleanup
activities that could not be reasonably anticipated at the time of the budget
submission, the law authorizes DOD to notify Congress of the additional costs “after-
CRS-27
the-fact”. Providing an exception from early notification requirements for unforseen
environmental costs could help to ensure that cost limitations do not prevent DOD
from taking timely action to comply with requirements to remove hazardous
materials or reduce the threat of exposure.
Energy and Water Development
Consideration of appropriations for FY2003 to support the cleanup and
management of defense nuclear waste is not yet complete. The Senate Appropriations
Committee reported the Energy and Water Development Appropriations Act for
FY2003 (S. 2784, S. Rept. 107-220) on July 24, 2002. The House Appropriations
Committee approved its version of the bill (H.R. 5431) on September 5, 2002, and
filed its report (H.Rept. 107-681) on September 24, 2002. Floor action has not
occurred on either bill to date. The new fiscal year began on October 1, 2002, and
a continuing resolution (P.L. 107-244) provides funding through November 22, 2002,
at the same level as enacted for FY2002.
As reported, S. 2784 would provide a total of $6.69 billion for DOE’s
management of defense nuclear waste and cleanup of contaminated nuclear weapons
sites. This amount is $180 million less than the Senate authorization of $6.87 billion
in S. 2514, and is $220 million less than the Administration’s amended request of
$6.91 billion. Of the total amount of $6.69 billion that the Senate Appropriations
Committee approved, $5.41 billion would be reserved for the Defense Environmental
Restoration and Waste Management Account, $1.13 billion would be set aside for
the Defense Facilities Closure Projects Account, and $158 million would be reserved
for the Defense Environmental Management Privatization Account.
As discussed on page 22, the Senate authorized funding for the Administration’s
proposed cleanup reform account in passing S. 2514. However, the Senate
Appropriations Committee did not allocate any funding for this new account in
reporting S. 2784, due to its concerns over the lack of information on how this
funding would be used to increase the pace of cleanup and lower costs. The
committee also questioned whether simply appropriating additional funds would
accomplish this objective. The Senate Armed Services Committee expressed similar
concerns in reporting S. 2514, and authorized funding for the account based on the
condition that DOE establish selection criteria to determine which sites would most
benefit from receiving funding to accelerate cleanup.
As indicated on page 15, DOE has already signed letters of intent with EPA and
state regulators to accelerate cleanup at several sites, based on the assumption that
funding would be provided for the cleanup reform account. The Senate
Appropriations Committee criticized DOE for acting prematurely, and increased
funding for the Defense Environmental Restoration and Waste Management Account
by over $1 billion to honor the new commitments that DOE has made, rather than
allocating the funding to the new cleanup reform account that the Senate authorized
in S. 2514. The committee also directed DOE to include the amount of funding that
would be necessary to fulfill its new agreements in future budget submissions to
Congress.
CRS-28
Related to the cleanup of defense nuclear waste, S. 2784 would provide a total
of $336 million for the site characterization of Yucca Mountain for the development
of a centralized repository for high-level defense and civilian nuclear waste, $257
million less than the Administration’s amended request of $593 million. Of the
amount approved by the Senate Appropriations Committee, $56 million would be
derived from the Nuclear Waste Fund, which is supported by contributions from
civilian nuclear utilities. The remaining amount of $280 million would come from
the Defense Nuclear Waste Disposal Account. Of the defense portion, the committee
report indicated that $2.5 million is to be provided to the Research Foundation of the
University of Nevada at Las Vegas for continuing and expanding its efforts to
characterize ground water around the site and research the safety of transporting
nuclear waste to Yucca Mountain. As discussed on page 16, the selection of Yucca
Mountain has been controversial due to questions raised about the possibility of
radiation contaminating ground water, and concerns over the safety of transporting
nuclear waste from many sites around the country to one location.
In addition to providing funding for DOE, S. 2784 would allocate $140 million
to the Army Corps of Engineers for environmental cleanup under the FUSRAP
program. As discussed on page 17, this program addresses low-level radioactive
contamination at sites that were primarily owned by private contractors who
processed and stored uranium and thorium ores during the early years of the U.S.
nuclear weapons program. The committee encouraged the Army Corps of Engineers
to reprogram available FUSRAP funds to initiate cleanup at the Iowa Army
Ammunition Plant, and to include funding for it in future budget submissions to
Congress. The Corps recently added this site to the program due to the discovery of
environmental contamination from past activities related to the development of
nuclear weapons.
As reported, H.R. 5431 would provide a total of $6.89 billion for DOE’s defense
nuclear waste management and cleanup activities for FY2003, about $203 million
more than the Senate Appropriations Committee amount of $6.69 billion, and nearly
$15 million less than the amended request of $6.91 billion. Of the $6.89 billion that
the House Appropriations Committee approved, $4.54 billion would be allocated to
the Defense Environmental Restoration and Waste Management Account, $1.09
billion would be reserved for the Defense Facilities Closure Projects Account, and
$158 million would be set aside for the Defense Environmental Management
Privatization Account. The committee approved the amended request of $1.1 billion
for DOE’s proposed cleanup reform account, and indicated its overall support for the
goals of accelerating cleanup and reducing costs through more efficient and
innovative approaches. The House authorized $800 million for the cleanup reform
account in H.R. 4546, prior to the submission of the Administration’s amended
request. The House Appropriations Committee raised its amount above the
authorization to accommodate the requested increase.
The House Appropriations Committee directed DOE to continue to focus on
reducing risk and accelerating cleanup, and to eliminate activities that do not
contribute to these goals. However, the committee indicated that none of the $1.1
billion in cleanup reform funds would be released until a performance management
plan is executed for each site and is submitted to the congressional defense
CRS-29
committees. DOE was also directed to revise its budget justification in future years
to fully identify the effects of the accelerated cleanup initiative.
Related to the cleanup of defense nuclear waste, the House Appropriations
Committee approved a total of $525 million for the site characterization and
development of Yucca Mountain as a centralized waste repository, about $189
million more than the Senate Appropriations Committee amount of $336 million, and
about $68 million less than the Administration’s amended request of $593 million.
Of the amount approved by the House Appropriations Committee, $210 million
would be derived from the Nuclear Waste Fund, of which a total of $8.5 million
would be allocated to state and local governments to assist them in their external
oversight responsibilities. The remaining amount of $315 million would come from
the Defense Nuclear Waste Disposal Account. The committee directed DOE to
submit a long-term budget plan which indicates the amount of funding that would be
necessary in future years to move from the site characterization phase to the license
application, design, and construction phases. The committee also indicated its
concern that DOE may not be prepared to meet its obligations to accept, store, and
transport waste according to the repository schedule, and directed DOE to cooperate
with state and local governments to develop safe transportation routes to Yucca
Mountain. The committee specified that such efforts should initially focus on routes
and modes of transportation that would avoid the Las Vegas metropolitan area.
For cleanup activities conducted by the Army Corps of Engineers under the
FUSRAP program, the House Appropriations Committee approved $150 million, $10
million more than the Senate Appropriations Committee amount of $140 million, and
$9 million more than the Administration’s request of $141 million. The House
Appropriations Committee indicated that the increase above the request should be
devoted to accelerating cleanup, with an emphasis on sites where cleanup is nearing
completion and on those that have recently been added to the program. The
committee also reiterated DOE’s responsibility to continue working with the Corps
to ensure the success of the program, and directed the Corps to prepare bi-annual
reports on the cleanup status of the program.
Supplemental Appropriations for FY2002
In addition to appropriations for FY2003, the second session of the 107th
Congress has enacted supplemental appropriations for FY2002. The House
Appropriations Committee reported the FY2002 Supplemental Appropriations Act
for Further Recovery from and Response to Terrorist Attacks on the United States
(H.R. 4775, H.Rept. 107-480) on May 20, 2002. The House passed H.R. 4775, as
amended, on May 24, 2002. The Senate Appropriations Committee reported its
version of the bill (S. 2551, S.Rept. 107-156) on May 29, 2002. The Senate
incorporated S. 2551 as an amendment to H.R. 4775, and passed H.R. 4775 on June
7, 2002. A House-Senate conference committee filed its report on the bill (H.Rept.
107-593) on July 19, 2002. The House passed the conference agreement on July 23,
2002, and the Senate passed it on July 24, 2002. The President signed H.R. 4775 into
law (P.L. 107-206) on August 2, 2002.
The law would have provided a total of $70 million in supplemental funding in
FY2002 for DOE to enhance safeguards and security at several defense nuclear waste
CRS-30
cleanup sites. However, the conference report on H.R. 4775 indicated that the
availability of these funds was contingent upon the submission of a budget request
from the President, which did not occur.
Of the supplemental appropriation of $70 million, $56 million would have been
allocated to the Defense Environmental Restoration and Waste Management
Account. The House initially proposed $67 million in supplemental funding for this
account, and the Senate initially proposed $40 million. The conference committee
included report language which specified that priority in the distribution of this
funding would have been granted to the Savannah River site in South Carolina, the
Hanford site in the State of Washington, the Idaho National Environmental and
Engineering Laboratory, and the Oak Ridge site in Tennessee.
The remaining $14 million in supplemental funding would have been allocated
to the Defense Facilities Closure Projects Account to enhance safeguards and security
at several nuclear waste sites at which cleanup is scheduled to be complete by 2006.
The House initially proposed $16 million in supplemental funding for this account,
but the Senate did not propose any funding. The conference committee did not
specify a priority for distributing funding among closure sites. Additionally, the law
rescinded $15.5 million in unobligated funds appropriated in past years to the
Defense Environmental Restoration and Waste Management Account.
The law does not include a provision proposed by the House, which would have
addressed the liability of military installations for the effects of water consumption
on critical habitat for endangered species. As originally passed by the House, Section
705 of H.R. 4775 would have prohibited the Secretary of Defense from being held
responsible for water consumption that occurs outside of a military installation, and
is beyond the direct authority and control of the Secretary, even if such consumption
affects the critical habitat of an endangered species. While neither bill nor report
language indicated how this provision would have applied to a specific installation,
the effects of water consumption by Fort Huachuca on critical habitat along the San
Pedro River in Arizona has been a controversial issue in recent years. Fort Huachuca
and the town of Sierra Vista consume water from an aquifer that feeds the San Pedro
River. Some scientists have expressed concerns that increased water consumption
has caused water levels along the river to fall significantly enough to harm critical
habitat.
As required under the Endangered Species Act, the U.S. Fish and Wildlife
Service assessed the effects of Fort Huachuca’s water use plans to determine whether
harm is being done to critical habitat along the San Pedro River. This assessment
resulted in a “biological opinion” that the installation’s continued water consumption
would not have any adverse effects. In April 2002, a U.S. District Court struck down
this opinion and found that it was “arbitrary, capricious, and contrary to law”.31 The
U.S. Fish and Wildlife Service must now reassess Fort Huachuca’s water use and
issue a new opinion. Since the House Appropriations Committee did not include any
bill or report language to specify the congressional intent of Section 705, it is unclear
31 Center for Biological Diversity vs. Rumsfeld, 198 F.S.upp. 2D1391 (D.C. Az. 202).
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how the provision would have affected the recent court ruling, and whether it would
have resulted in exempting Fort Huachuca from the Endangered Species Act.
Other Relevant Legislation in the 107th Congress
At least 14 other bills have been introduced in the 107th Congress that are related
to defense environmental activities. These bills would address matters such as
conversion of the Rocky Flats site in Colorado into a National Wildlife Refuge,
cleanup of UXO and other military munitions, critical habitat protection for
endangered and threatened species, military compliance with environmental laws,
reform of Superfund cleanup requirements, military response to environmental
emergencies in foreign nations, storage and use of mercury at military installations,
regulation of pollution from military aircraft operations, and suspension of the use
of depleted uranium munitions. The two bills which address the Rocky Flats site and
UXO cleanup were modified and incorporated into the National Defense
Authorization for FY2002 (P.L. 107-107). Each bill is discussed below.
Making the Rocky Flats Site a National Wildlife Refuge
Representative Mark Udall introduced the Rocky Flats National Wildlife Refuge
Act of 2001 (H.R. 812) on March 1, 2001, and Senator Allard introduced companion
legislation (S. 425) on the same day in the Senate. This legislation was modified and
included as Subtitle F of Title XXXI in the National Defense Authorization Act for
FY2002 (P.L. 107-107). As introduced, H.R. 812 and S. 425 proposed to transfer the
management of the Rocky Flats nuclear waste cleanup site in Colorado from DOE
to the Department of the Interior for the purpose of establishing a national wildlife
refuge. Cleanup at the site is scheduled to be complete by 2006, and there has been
an ongoing interest in converting the site into a national wildlife refuge because of
the habitat that it provides for many threatened and endangered species and the
perceived need for the preservation of open space for surrounding communities in the
Denver metropolitan area.
DOE would retain jurisdiction, authority, and control over portions of the site
that are necessary for conducting long-term treatment and control of contamination.
Upon transfer of the site to the Department of the Interior, local communities would
be permitted to comment on decisions regarding habitat management and public
access to the land. Additionally, both bills would authorize DOE to establish a
Rocky Flats museum to commemorate the contribution of the site and its work force
to the “winning of the Cold War” and the impact that this contribution has had on
surrounding communities and the State of Colorado. While P.L. 107-107
incorporated the major provisions of both bills, it included additional language which
prevents the transfer from occurring until EPA certifies that DOE has completed all
cleanup and closure activities (excluding the operation and maintenance of response
actions) and that all cleanup remedies are in place and adequately functioning.
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Removal and Remediation of Unexploded Ordnance
Representative Earl Blumenauer introduced the Ordnance and Explosives Risk
Management Act (H.R. 2605) on July 24, 2001. The bill would require DOD to
appoint a program manager who would serve as the single point of contact for policy
and budgetary issues involved in characterizing, remediating, and managing UXO
and other munitions on former military training ranges. DOD would be required to
develop, maintain, and annually update an inventory of sites that are known or
suspected to contain UXO and other munitions that pose a threat to human health and
safety. DOD would also be required to prioritize the sites for response activities,
based on the overall conditions of each range, and develop security plans to restrict
public access and inform the public about the risks of handling unexploded
munitions. Additionally, the bill would establish a new “Abandoned Military
Munitions Account” to authorize funding for the removal and cleanup of identified
sites, and it would require DOD to establish an independent review panel to report
to Congress on the progress of the program and recommend improvements. The
National Defense Authorization Act for FY2002 (P.L. 107-107) included similar
provisions related to creating an inventory of military sites that are known or
suspected to contain UXO and a response priority list for removal and remediation.
As discussed earlier, DOD created the Military Munitions Response Program to carry
out these requirements.
In addition to H.R. 2605, Representative Anibal Acevedo-Vila introduced the
Underwater Unexploded Ordnance Removal Act of 2001 (H.R. 3212) on November
1, 2001. The bill would direct DOD to include underwater portions of live firing
areas in its efforts to identify and remove UXO and address related environmental
contamination. The bill also would require DOD to specify the amount of funding
that would be necessary to address the underwater removal and remediation of UXO
in its annual budget submission to Congress. DOD issued an “unfavorable executive
comment” on H.R. 3212 on March 19, 2002.
Endangered and Threatened Species
Senator Gordon Smith introduced the Endangered Species Recovery Act of
2001 (S. 911) on May 17, 2001. It would require the Secretary of the Interior to grant
priority consideration to plans for the conservation and recovery of endangered and
threatened species which, among other factors, would reduce conflict with military
training and operations. The bill also would require the Secretary of the Interior to
consider the impacts on military training and operations when designating “critical
habitat” for the protection of endangered and threatened species. This latter
provision is similar to language that the House included in passing its version of the
National Defense Authorization Act for FY2003 (H.R. 4546).
Compliance with Federal and State Environmental Laws
Representative Bob Filner introduced the Military Environmental Responsibility
Act (H.R. 2154) on June 13, 2001. The bill would clarify that DOD and other
defense-related agencies (including DOE, the Nuclear Regulatory Commission, the
Office of Naval Reactors, and any other federal agency designated by the President)
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are subject to substantive and procedural requirements under federal and state
environmental laws to the same extent as other entities. The bill also would waive
any immunity of the United States with respect to requirements under federal and
state environmental laws, and it would require the federal agencies responsible for
administering such laws to take enforcement actions against DOD and other defense-
related agencies to the same extent as other entities. Similar provisions for clarifying
federal compliance requirements and waiving immunity are already included in the
Resource Conservation and Recovery Act and the Safe Drinking Water Act. H.R.
2154 would extend their applicability to all other federal environmental laws and
state statutes as well. These provisions are similar, but broader in scope, to
legislation introduced in the 106th Congress.
As introduced, H.R. 2154 also would specify the applicability of the National
Environmental Policy Act to the development and procurement of weapons systems
that require congressional authorization. Additionally, the bill would permit the use
of cleanup funding under the Defense Environmental Restoration Accounts to pay
fines and penalties for violations of non-cleanup environmental laws, and it would
allow the use of funding under these accounts for waste treatment, storage, or
disposal activities under the Army Corps of Engineers’ Formerly Utilized Sites
Remedial Action Program, discussed on page 17.
Superfund Reform
Representative Sherwood Boehlert introduced the Recycle America’s Land Act
of 2001 (H.R. 324) on January 31, 2001. The bill includes numerous reforms to the
Superfund program that could affect DOD’s cleanup activities. First, it would revise
the remedy selection process which might help to reduce cleanup expenses at some
sites. However, other provisions related to the state role at DOD’s cleanup sites
could cause costs to rise. The bill would grant states the legal authority to make final
determinations on which cleanup remedies are used at hazardous waste sites on DOD
and other federal facilities that are being cleaned up under CERCLA through
interagency agreements. Cleanup costs at such sites could be higher if states insist
on measures that are more expensive to implement than those preferred by federal
agencies. States would be permitted to make the final determination on remedy
selection in cases where a consensus could not be reached with a federal agency
through dispute resolution. The bill would grant states the legal authority to bring
civil action in a United States district court to compel a federal agency to implement
a state’s preferred remedy, and penalties of up to $25,000 per day could be assessed
against DOD or other federal agencies for not complying. These provisions are
similar to legislation that was introduced during the 106th Congress.
Military Response to Environmental Emergencies in
Foreign Nations
Representative Mark Udall introduced the International Environmental Defense
Act of 2001 (H.R. 1976) on May 23, 2001. The bill would expand the Secretary of
Defense’s current authority to transport humanitarian relief supplies to foreign
nations to include the authority to transport supplies intended for responding to, or
mitigating the effects of, a condition or event, such as an oil spill, that threatens to
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seriously harm the environment in foreign nations. This authority would be
applicable in what the bill refers to as “appropriate circumstances” under which an
international response to an environmental emergency would be in the national
interest of the United States.
Storage and Use of Mercury at Military Installations
Representative Thomas Allen introduced the Mercury Storage and Safe Disposal
Act of 2001 (H.R. 2266) on June 21, 2001. The bill would authorize DOD to
temporarily accept and store mercury from private sector sources until a safe disposal
method or storage facility is developed for private sector use. Certain military
installations already have the infrastructure available to store mercury since this
substance is part of the National Defense Stockpile. The bill is primarily aimed at
providing safe storage for large private sector sources which have an inventory of
mercury weighing in excess of 35,000 pounds. EPA would be authorized to acquire
mercury from these sources for transfer to a designated military installation. The bill
also would direct EPA to establish a Task Force on Safe Mercury Disposal to identify
the best methods to ensure that mercury is not released into the environment, assess
the technologies and measures that would be required to safely dispose of and store
mercury over the long-term, and identify the research, development, and
demonstration of technologies that would be necessary to accomplish this objective.
The task force would be required to submit a report to Congress on its progress
within one year of its first meeting, and to transmit a final plan for safe mercury
disposal by 2003. Once safe disposal and storage facilities were available, the private
sector inventory of mercury would be transferred back from DOD to the new
facilities.
Three other bills would seek to reduce emissions of mercury from various
sources to reduce the threat of human exposure, including activities conducted by
DOD. Representative Thomas Allen introduced the Omnibus Mercury Emissions
Reduction Act of 2001 (H.R. 2729) on August 2, 2001. The bill would require DOD
to submit a report to Congress by December 31, 2002, on the use of mercury and
mercury compounds in activities conducted by DOD. This report would include
information on measures that DOD is taking to reduce the use and emissions of
mercury and mercury compounds in military operations, to stabilize or recycle
discarded mercury or mercury-containing products, and to stabilize and retire the
national defense stockpile of mercury.
Senator Patrick Leahy introduced similar legislation (S. 1875) on December 20,
2001. Like the House bill, S. 1875 would require DOD to submit a report to
Congress on the use of mercury and mercury compounds for national defense
purposes. However, the Senate bill includes provisions that would prohibit the sale
of mercury from the National Defense Stockpile, domestically or internationally, for
commercial or industrial use. This prohibition would be intended to limit the supply
of mercury, and thereby prevent its use and any possible contamination in the future
resulting from such use.
The Senate Committee on Environment and Public Works reported the Mercury
Reduction Act of 2002 (S. 351, S.Rept. 107-243), on August 28, 2002, and the
Senate passed the bill, as amended, on September 5, 2002. While the bill would
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focus primarily on reducing the release of mercury from thermometers, it also would
establish a federal task force to recommend more effective means to collect, store,
and dispose of mercury from various sources to prevent releases into the
environment. The Secretary of Defense would serve as a member of the task force
to recommend long-term plans for managing DOD’s stockpile of mercury, as well
as participate in the recommendation of alternative methods and technologies to
safely collect and store mercury.
Regulation of Pollution from Military Aircraft Operations
Representative Steve Rothman introduced the Right to Know About Airport
Pollution Act of 2002 (H.R. 3886) on March 6, 2002. The bill would require EPA
to study the feasibility of comprehensively regulating air, noise, water, and solid
waste pollution at commercial and military airports based on aggregate pollutant
levels, measured as if the various sources were a single source. EPA would be
required to establish a working group, including DOD, to conduct the study. As one
of many areas of consideration, the study would address issues involved in
identifying and regulating air and noise pollution that are unique to military air bases
and stations. EPA would be required to complete the study within 3 years of
enactment and to submit a report to Congress on its findings and recommendations.
The bill also would require EPA to promulgate regulations that require commercial
and military airports to report releases of toxic chemicals involved in the operation
and maintenance of aircraft and supporting vehicles.
Suspension of the Use of Depleted Uranium Munitions
Representative Cynthia McKinney introduced the Depleted Uranium Munitions
Suspension and Study Act of 2001 (H.R. 3155) on October 17, 2001. The bill would
require DOD to suspend all uses of depleted uranium munitions due to potential
threats to human health. The findings of the bill indicate that depleted uranium
munitions have been used at numerous military installations, proving grounds, and
testing facilities in the United States, and also were used during the Persian Gulf War
and during the conflicts in the former Federal Republic of Yugoslavia. DOD has
acknowledged that stocks of depleted uranium munitions have been contaminated
with plutonium and other radioactive elements, which are extremely toxic and
carcinogenic, and many have speculated that exposure to such munitions may have
affected the health of military personnel and civilian populations. The suspension
that would be required under the bill would remain in effect until the Secretary of
Health and Human Services certifies that the use of current stockpiles of depleted
uranium in future conflicts would not pose a likely long-term or residual threat to the
health of United States or NATO military personnel, and would not jeopardize the
health of civilian populations within the areas of such use.
In addition to requiring a suspension of the use of depleted uranium munitions,
H.R. 3155 would require DOD to provide EPA with a list of all sites in the United
States where depleted uranium munitions have been used or produced, as well as a
site-specific map for each site. EPA would be required to study the possible
contamination of soil, air, water, and vegetation at each site, and report its findings
to DOD and Congress. The report would include information on the extent of such
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contamination, make site-specific recommendations for the mitigation and cleanup
of each contaminated site, and make general recommendations on the cleanup of sites
where depleted uranium munitions have been used on foreign lands. Based on EPA’s
report, DOD would be required to develop a plan for mitigating and cleaning up each
site and to establish a prioritized list of cleanup actions to be taken. DOD also would
be required to report to Congress on the status of cleanup progress. The bill would
require cleanup actions to be carried out according to the National Environmental
Policy Act.
Selected References
Department of Defense. Defense Environmental Quality Program Annual Report to
Congress for FY2001. September 2002.
Department of Defense. Defense Environmental Restoration Program Annual
Report to Congress for FY2001. April 2002.
Department of Defense. Operation and Maintenance Overview for FY2003.
February 2002.
Department of Energy. A Review of the Environmental Management Program.
February 2002.
General Accounting Office. Waste Cleanup: Status and Implications of DOE’s
Compliance Agreements. GAO-02-567. May 2002.
General Accounting Office. Military Training: DOD Needs a Comprehensive Plan
to Manage Encroachment on Training Ranges. GAO-02-727T. May 2002.
General Accounting Office. Environmental Contamination: Cleanup Actions at
Formerly Used Defense Sites. GAO-01-557. July 2001.
General Accounting Office. Environmental Liabilities: DOD Training Range
Cleanup Cost Estimates Are Likely Understated. GAO-01-479. April 2001.