Order Code RL31456
Report for Congress
Received through the CRS Web
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2003
Updated January 13, 2003
David M. Bearden
Environmental Policy 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. Additionally, 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 ongoing 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 National Defense Authorization Act for FY2003 (P.L. 107-314, H.R. 4546)
authorizes a total of $1.32 billion for environmental cleanup at current and former
military installations. It also authorizes $565 million for base closure activities, most
of which would be used for cleanup. As in past years, funding is authorized for
DOD’s other environmental activities as part of the accounts for Operation and
Maintenance, Procurement, and Research and Development. The law also authorizes
$6.76 billion for DOE’s defense nuclear waste management and cleanup
responsibilities. In addition to funding, the law contains several other environmental
provisions, including an interim exemption from the Migratory Bird Treaty Act for
military readiness activities.

Action is also complete on the Department of Defense Appropriations Act (P.L.
107-248, H.R. 5010), which provides $1.31 billion for environmental cleanup at
current and former military installations. The Military Construction Appropriations
Act for FY2003 (P.L. 107-249, H.R. 5011) provides $561 million for base closure
activities, most of which would be used for cleanup. As in defense authorization
legislation, funding for DOD’s other environmental activities will come from the
accounts for Operation and Maintenance, Procurement, and Research and
Development. The 107th Congress did not complete action on FY2003
appropriations for DOE’s defense nuclear waste management and cleanup
responsibilities. A continuing resolution (P.L. 108-2) provides funding for these
activities at the FY2002 funding level of $6.49 billion through January 31, 2003,
while the 108th Congress works on final appropriations for FY2003.
Other relevant legislation was introduced in the 107th Congress that was not
enacted, or incorporated into other legislation, prior to adjournment. These bills
addressed a variety of environmental issues related to military activities. Among the
issues were underwater cleanup of unexploded ordnance, protection of endangered
species on military lands, 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. A similar body of legislation may be considered during the 108th
Congress. 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
Authorizing Legislation for FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Military Readiness Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Procurement Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Natural Resource Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Use and Disposal of Obsolete Naval Vessels . . . . . . . . . . . . . . . . . . . 22
Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Appropriations for FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Military Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Energy and Water Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Other Relevant Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . 26
Removal and Remediation of Unexploded Ordnance . . . . . . . . . . . . . . . . . 26
Endangered and Threatened Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Compliance with Federal and State Environmental Laws . . . . . . . . . . . . . . 27
Superfund Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Military Response to Environmental Emergencies in
Foreign Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Storage and Use of Mercury at Military Installations . . . . . . . . . . . . . . . . . 28
Regulation of Pollution from Military Aircraft Operations . . . . . . . . . . . . . 29
Suspension of the Use of Depleted Uranium Munitions . . . . . . . . . . . . . . . 29
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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
that address the cleanup of past contamination on military installations, compliance
with environmental laws that apply to ongoing military operations, pollution
prevention, environmental cleanup and waste management technologies, and the
conservation of military lands. In addition to DOD’s environmental programs, the
Department of Energy (DOE) is responsible for managing defense nuclear waste, and
cleaning up contaminated nuclear weapons sites. The Environmental Protection
Agency (EPA) and the states provide oversight to enforce applicable laws. Some of
the ongoing issues are the adequacy, cost, and pace of cleanup, whether DOD and
DOE adequately comply with environmental laws, and the extent to which
environmental requirements restrict military readiness.
Congress authorizes 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 since FY1990. For FY2003, the
Administration requested $11.17 billion for all defense-related environmental
programs, about $390 million more than the FY2002 funding level of $10.78 billion.
Although the FY2003 appropriations bills for the Department of Defense and
Military Construction have been signed into law, the 107th Congress did not enact
FY2003 appropriations for DOE’s defense nuclear waste management and cleanup
responsibilities. A continuing resolution (P.L. 108-2) funds these activities at the
FY2002 enacted level of $6.49 billion through January 31, 2003, while the 108th
Congress works on final appropriations for FY2003.
This report provides background information on defense-related environmental
programs, 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 in the 107th Congress
that could have affected 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
10.79
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
1.28
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.
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Department of Defense
DOD administers five environmental programs to comply with various federal
environmental laws.1 In terms of funding, the two largest programs focus on cleaning
up past contamination and on complying with environmental laws and regulations
that apply to ongoing operations. Three other 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 was primarily due to a lack of funding being requested to
continue specific projects that received congressionally designated funding in
FY2002. (Refer to page 19 for a discussion of authorizing legislation and
appropriations for FY2003.) More 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
Authorization Act for FY2002 (P.L. 107-107) to identify, investigate, and clean up
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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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
determined. Funding needs for cleanup also may rise in future years as additional
6 Department of Defense. Defense Environmental Restoration Program Annual Report to
Congress for FY2001. April 2002. p. B-6-1, p. C-5-1.
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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
FUDS sites, and the National Defense Authorization Act for FY2001 (P.L. 106-398)
established a FUDS subaccount to conform with this budgetary practice.
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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, over $30 million more than the Administration’s request and the enacted
FY2002 funding level of $1.28 billion. The increase in funding is reserved for
improving 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 enacted 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 24 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
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
CRS-7
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. Although the Safe Drinking Water Act
includes similar language, other federal environmental laws do not include the same
clarification of compliance requirements.
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
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
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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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 accounts for
Operation and Maintenance and Procurement in the Department of Defense
Appropriations Act for FY2003 (P.L. 107-248). Additional funding for compliance
will 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. Although 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
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
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
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.
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.
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.
DOD began tracking the budget for these programs in FY1993. Although 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,
13 Ibid., Appendix K. p. 10.
CRS-10
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. 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
was primarily due to funding needs for Air Force and defense-wide projects.
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 was mostly due to the lack of funding being requested to continue specific
projects that received congressionally designated funding in FY2002 under the
Research, Development, Test, and Evaluation Accounts. Although 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. 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 was primarily due to reduced
costs for Air Force projects and the lack of funding being requested for projects that
received congressionally designated 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
national security would be compromised. 14 These exemptions provide the President
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
(continued...)
CRS-11
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 modifications to numerous environmental statutes that would
provide greater flexibility for conducting combat training and other readiness
activities without restriction or delay. However, environmental organizations have
opposed such modifications and argue 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.
Oversight hearings were held during the 107th Congress to examine the impact
of environmental requirements on military readiness, and this issue was debated in
legislation as well. The National Defense Authorization Act for FY2003 (P.L. 107-
314) includes an interim exemption for military readiness activities from the
Migratory Bird Treaty Act. DOD had requested this exemption as part of a
14 (...continued)
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
Readiness and Range Preservation Initiative submitted to Congress in April 2002.16
In addition to the exemption from the Migratory Bird Treaty Act, the House had
proposed modifications to the Endangered Species Act, and a targeted exemption
from the Wilderness Act, which were not adopted in conference. (Refer to page 20
for further discussion.) Oversight of the issue of environmental encroachment will
likely continue in the 108th Congress, as DOD continues to balance military readiness
needs with requirements to comply with environmental laws.
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
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
Energy Act. CERCLA and RCRA are the two main federal environmental statutes
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. The 107th
Congress did not complete consideration of FY2003 appropriations for these
activities. A continuing resolution (P.L. 108-2) provides funding at the same level
as enacted for FY2002 through January 31, 2003, while the 108th Congress works on
final appropriations for FY2003. (Refer to page 25 for further discussion.)
Of the $6.91 billion that the Administration requested for FY2003, 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.
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
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
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.
During the 107th Congress, the Subcommittee on Oversight and Investigations
of the House Committee on Energy and Commerce held a hearing on DOE’s cleanup
reform initiative. 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.
CRS-17
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
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
25 For further information on this issue, refer to CRS Issue Brief IB92059, Civilian Nuclear
Waste Disposal, by Mark Holt.
CRS-18
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 2 years. After that time, the site is transferred back to DOE for
continuing any necessary monitoring and maintenance.
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 eight 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. The 107th Congress did not complete
consideration of FY2003 appropriations for the FUSRAP program. A continuing
resolution (P.L. 108-2) provides funding at the enacted FY2002 funding level of
$140 million through January 31, 2003, while the 108th Congress works on final
appropriations for FY2003. (Refer to page 26 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.
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
Authorizing Legislation for FY2003
The second session of the 107th Congress completed consideration of legislation
to authorize funding for national defense programs in FY2003, including defense-
related environmental programs administered by DOD and DOE. The House passed
the conference agreement on this legislation, the Bob Stump National Defense
Authorization Act for FY2003 (H.R. 4546, H.Rept. 107-772), on October 12, 2002.
The Senate passed the conference agreement on H.R. 4546 on October 13, 2002. The
President signed the bill into law (P.L. 107-314) on December 2, 2002. Major
environmental provisions of the law are discussed below.
Department of Defense
P.L. 107-314 authorizes specific funding levels for the cleanup of environmental
contamination at current, former, and closing military installations. However, there
are no line-item accounts for DOD’s other environmental activities, including
compliance, pollution prevention, environmental technology, and conservation.
Funding for these activities is authorized as part of the Operation and Maintenance,
Procurement, and Research and Developments Accounts. The law also includes
several other environmental provisions, which address military readiness issues,
natural resource conservation, procurement practices, and the use and disposal of
obsolete naval vessels.
Environmental Cleanup. Section 301 of P.L. 107-314 authorizes a total of
$1.32 billion for environmental cleanup at current and former military installations.
This amount is approximately $40 million more than Administration’s FY2003
request and the enacted FY2002 appropriation of $1.28 billion. The increase is
devoted to the cleanup of 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. Regarding the use of defense funds for cleanup,
Section 313 requires the Secretary of Defense to fund environmental cleanup projects
only with environmental restoration funds, and not as military construction projects.
Section 2404 authorizes $565 million for base closure activities, which includes
the cleanup of environmental contamination at such sites. This amount is $20
million more than the Administration’s FY2003 request of $545 million, and is $68
million less than the enacted FY2002 appropriation of $633 million. The conference
report indicates that the increase above the request is only to be used for
environmental cleanup, rather than general activities related to closure. For the sake
of clarity, there also appears to be conflicting language in the conference report
regarding the amount authorized for base closure activities. Although report
language indicates an amount of $561 million, the law specifies $565 million, which
would be the actual authorization since it is stipulated in statutory language.
In addition to comprehensive funding for cleanup at military facilities, Section
301 authorizes 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 subsequently returned
CRS-20
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, Section 312 requires the Secretary
of Defense to establish a program manger who will serve as the single point of
contact for policy and budgeting issues involved in characterizing, remediating, and
managing UXO and other munitions at defense sites. The conferees also included
report language which directs DOD to submit a consolidated budget proposal for
each of the next four fiscal years on the amount of funding that would be necessary
to address the environmental impacts of UXO. As discussed earlier, DOD has
established a Military Munitions Response Program to address the cleanup of UXO.
DOD is still in the process of identifying contaminated sites and estimating the
amount of funding that will be necessary for environmental restoration.
Military Readiness Issues. The extent to which environmental
requirements restrict or delay military readiness activities was a significant issue in
the debate over H.R. 4546. As discussed earlier on page 11, DOD requested
exemptions from, or modifications to, several environmental statutes as part of a
Readiness and Range Preservation Initiative submitted to Congress in April 2002.
DOD argued that certain exemptions and modifications are needed to provide greater
compliance flexibility, in order to prevent environmental requirements from
imposing restrictions on military readiness capabilities. Some Members of Congress
and numerous environmental organizations opposed the initiative and argued that
existing exemption authorities are adequate to protect training needs.
In passing H.R.4546, the House approved an exemption from the Migratory Bird
Treaty Act and modifications to the Endangered Species Act, which were requested
as part of DOD’s proposed initiative. The House also approved a targeted exemption
from the Wilderness Act for military overflights on the Utah Test and Training
Range. The Senate did not propose any environmental exemptions in passing its
version of the bill. The conference committee on H.R. 4546 did not adopt the
provisions regarding the Endangered Species Act or the Wilderness Act, but did
approve a modified version of the exemption from the Migratory Bird Treaty Act,
which is contained in Section 315 of P.L. 107-314.27
Conflicts between military training needs and the protection of migratory birds
arose as a result of a federal court ruling, which indicated that the Navy had violated
the Migratory Bird Treaty Act by incidentally taking migratory birds without a permit
during training exercises in Guam. 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 intentional takings for specific purposes,
such as hunting within designated seasons as well as numerous other activities.
27 For a legal analysis, 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.
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To address the lack of permit authority for incidental takings and prevent
possible restrictions on training in the future, Section 315 of P.L. 107-314 requires
the Secretary of the Interior to “prescribe” regulations, within one year of enactment,
that would exempt military readiness activities from the protections under the
Migratory Bird Treaty Act. The conference report does not explain whether
“prescribe” means propose or finalize, however, it appears that “prescribe” means
final promulgation of the regulations, when the section is read as a whole. The law
defines readiness activities as all training and operations of the Armed Forces that are
related to combat, as well as the adequate and realistic testing of military equipment,
vehicles, weapons, and sensors for proper operation and suitability for combat use.
While the new regulations are being developed, the law grants an interim
exemption from the Migratory Bird Treaty Act in order to allow any potentially
affected training operations to proceed. During the interim period, the Secretary of
Defense is required to consult with the Secretary of the Interior to monitor, minimize,
and mitigate any adverse impacts on migratory birds, whenever practicable. Interim
exemption authority will expire when the new regulations become effective and all
litigation challenging them has been resolved. To restrict the amount of time during
which legal challenges could be raised, the law limits judicial review by a federal
court to 120 days from the date that the regulations are published.
Although P.L. 107-314 does not include modifications to the Endangered
Species Act, the conference report on H.R. 4546 expresses concern that designating
additional critical habitat areas on training ranges could adversely affect military
readiness capabilities. The House originally would have amended 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 The conferees expressed their support for the level
of cooperation between DOD and the Department of the Interior to prepare effective
INRMPs to protect threatened and endangered species, and indicated their concerns
about questions as to whether INRMPs provide sufficient protection to eliminate the
need for further critical habitat designations. The conferees encouraged the
Department of the Interior and DOD to cooperate in the management of natural and
cultural resources on military lands, and directed the Secretary of Defense to
recommend legislative proposals to accomplish these goals.
Procurement Practices. Various laws, regulations, and executive orders
require federal agencies to procure recycled or environmentally preferable items
whenever it is practical to do so. Section 314 requires the Secretary of Defense to
establish a tracking system to identify the extent to which the Defense Logistics
Agency procures items that are environmentally preferable or are made with
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.
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recovered materials. This provision also requires the Secretary of Defense to assess
the need for training and educating military personnel to ensure that they are aware
of any requirements, preferences, or goals for the procurement of environmentally
preferable items, or those made with recovered materials. Related to procurement,
Section 827 authorizes multi-year authority for procuring services related to the
cleanup of environmental contamination on military installations. Since, many types
of cleanup remedies are long-term actions, multi-year authority is often more
practical than annual authorizations.
Natural Resource Conservation. P.L. 107-314 includes two natural
resource conservation provisions that address the impacts of land development on
military installations. In many areas, wildlife populations have increased on military
lands as surrounding open spaces and habitat have diminished due to property
development. DOD argues that environmental requirements to protect endangered
and threatened species have risen as a consequence, and that such requirements have
placed limitations on the use of certain lands. To prevent further land development
and help ease the burden of habitat preservation on military lands, Section 2811
authorizes the Secretary of Defense to enter cooperative agreements with states and
private entities to acquire or obtain interest in nearby properties to preserve open
space and protect critical habitat. Such properties would serve as a buffer to help
eliminate or relieve restrictions on training, testing, or other operations, that might
otherwise be imposed if the availability of open space and wildlife habitat were
limited to military lands due to surrounding property development. To meet this
same objective, Section 2812 authorizes the Secretary of Defense to convey surplus
property to state or local governments, or non-profit conservation organizations, to
preserve open space or natural resources in perpetuity.
Use and Disposal of Obsolete Naval Vessels. Section 3504 authorizes
financial assistance to states for preparing obsolete vessels from the National Defense
Reserve Fleet for use as artificial reefs. The law does not specify how much funding
is authorized, and the amount of assistance would depend on the availability of
appropriations. Eligible activities include removing hazardous materials from a
vessel, towing it to the target location, and sinking it. The amount of assistance
awarded to a state would depend on numerous factors, such as the cost-effectiveness
of “reefing” a vessel compared to other disposal options. No later than September
30, 2003, the Maritime Administration and EPA are required to jointly develop
environmental best management practices to serve as a national guideline for
preparing vessels as artificial reefs. In addition to the use of artificial reefs as a
disposal option, Section 3504 directs the Maritime Administration to carry out a pilot
program to explore alternatives for exporting obsolete naval vessels abroad to be
dismantled and recycled. The Maritime Administration already has the authority to
export vessels for these purposes, and the pilot program is intended to identify more
effective and safer practices for disposal abroad.
Department of Energy
Section 3101 authorizes a total of $6.76 billion for DOE’s management of
defense nuclear waste and cleanup of contaminated nuclear weapons sites. This
amount is about $148 million less than the Administration’s amended request of
$6.91 billion, and is nearly $271 million more than the FY2002 appropriation of
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$6.49 billion. Of the authorization of $6.76 billion, approximately $4.51 billion
would be reserved for the Defense Environmental Restoration and Waste
Management Account, nearly $1.11 billion would be allocated to the Defense
Facilities Closure Projects Account, and about $158 million would be set aside for
the Defense Environmental Management Privatization Account.
The remaining authorization of $982 million would be devoted to a new
Defense Environmental Management Cleanup Reform Account. This amount is
approximately $100 million less than the Administration’s amended request of $1.1
billion. As discussed earlier, the Administration had requested funding for this
account to support a new initiative that would accelerate cleanup schedules and
reduce costs. Although there have been long-standing concerns over the pace and
cost of cleanup at defense nuclear waste sites, some Members of Congress criticized
DOE for not providing adequate information on how the goals of accelerated cleanup
and lowered costs would be achieved under this initiative. There also were concerns
regarding how these goals could be attained without weakening cleanup standards or
other environmental protections.
To address the above concerns and ensure adequate oversight, Section 3145
requires the Secretary of Energy to submit a performance management plan to
Congress for each affected site prior to the allocation of funds. Once allocated to a
site, funds could not be obligated or expended until 30 days after the Secretary of
Energy submits to Congress a description of the activities to be carried out under the
performance management plan. To provide opportunities for additional oversight,
Section 3179 requires the Secretary of Energy to submit a report to Congress on the
progress of activities to accelerate the reduction of environmental risks at defense
nuclear waste sites that have helped to increase the pace of cleanup and reduce costs.
The law directs the Secretary to submit this report along with DOE’s budget
justification for FY2004.
Appropriations for FY2003
In addition to the authorization of funding, the second session of the107th
Congress completed consideration of the two appropriations bills that fund DOD’s
environmental programs. The Department of Defense Appropriations Act for
FY2003 (P.L. 107-248, H.R. 5010) provides funding for environmental cleanup at
current and former military installations, as well as numerous other environmental
activities. The Military Construction Appropriations Act for FY2003 (P.L. 107-249,
H.R. 5011) provides funding for the cleanup of environmental contamination at base
closure sites. The 107th Congress did not complete consideration of FY2003
appropriations for DOE’s defense nuclear waste management and cleanup
responsibilities. The new fiscal year began on October 1, 2002, and a series of
continuing resolutions have been providing funding for most federal programs at the
same level as enacted for FY2002. The current continuing resolution (P.L. 108-2)
provides funding through January 31, 2003, while the 108th Congress works on final
appropriations for FY2003. Additional discussion is provided below.
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Department of Defense
The Department of Defense Appropriations Act for FY2003 (P.L. 107-248, H.R.
5010) 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, 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 $6 million less than
the enacted authorization of $1.32 billion, and over $30 million more than the
FY2002 appropriation of $1.28 billion. The increase 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, $50
million more than the enacted authorization and the Administration’s request of $25
million. The law provides another $10 million to mitigate the environmental impacts
of military activities on Indian lands, the same as the Administration requested.
On a cleanup-related matter, 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. The law also includes
another environmental provision that prohibits the use of FY2003 funds to upgrade
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 environmental provisions that were considered
during the debate over H.R. 5010. First, the law does not include the Senate
provision that would have provided up to $2.5 million 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. Interest in inland disposal has been
rising 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 environmental requirements, on military training.
Military Construction
The Military Construction Appropriations Act for FY2003 (P.L. 107-249, H.R.
5011) allocates $561 million to the BRAC account for base realignment and closure
activities in the United States, $4 million less than the enacted authorization of $565
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million, and about $72 million less than the FY2002 appropriation of $633 million.
The Administration had requested $545 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. Of the enacted appropriation of $561
million, $20 million is reserved for a new Environmental Cleanup Acceleration
Initiative to address the backlog of environmental remediation requirements that
have not been met. 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.
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.
Related to cleanup funding, the law 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 a
provision which provides greater flexibility for the payment of environmental
cleanup costs associated with the upkeep of 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-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
Prior to the adjournment of the 107th Congress, the House and Senate
Appropriations Committees reported their respective versions of the Energy and
Water Development Appropriations Act for FY2003 (H.R. 5431 and S. 2784). Floor
action did not occur on either bill. Both bills would have provided less funding than
the Administration requested for DOE’s defense-related environmental activities. As
reported, H.R. 5431 would have provided a total of $6.89 billion for the various
accounts that fund DOE’s defense nuclear waste management and cleanup
responsibilities, whereas S. 2784 would have provided $6.69 billion. The
Administration has requested $6.91 billion for these activities.
The most controversial element of the appropriations debate was the
Administration’s proposal to establish a new account that would fund activities to
accelerate cleanup and reduce costs. The House amount included $1.1 billion to
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fund the full request for this account. However, the Senate bill would not have
provided appropriations for it due to concerns over the lack of detailed information
on how the funding would be used. Senate report language also criticized DOE for
entering commitments to accelerate cleanup at numerous sites prior to receiving
appropriations for the account. Despite these concerns, the Senate bill would have
appropriated an increase of over $1 billion for the Defense Environmental
Restoration and Waste Management Account to honor these commitments. As
discussed earlier, the National Defense Authorization Act for FY2003 authorized
$982 million to establish a new cleanup reform account, and the amount of the
appropriation for this account may be an issue for the 108th Congress in its debate
over final appropriations for FY2003.
Related to the management of defense nuclear waste, H.R. 5431 would have
provided $525 million for the site characterization of Yucca Mountain to develop a
centralized repository for high-level defense and civilian nuclear waste, whereas S.
2784 would have provided $336 million. The Administration has requested $593
million. In addition to funding for DOE, H.R. 5431would have provided $150
million for environmental cleanup under the FUSRAP program, whereas S. 2784
would have provided $140 million. The Administration has requested $141 million.
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.
Other Relevant Legislation in the 107th Congress
Other relevant legislation was introduced in the 107th Congress that was not
enacted, or incorporated into other legislation, prior to adjournment. These bills
addressed a variety of environmental issues related to military activities. Among the
issues were the underwater cleanup of UXO and other military munitions, critical
habitat protection for endangered and threatened species on lands administered by
DOD, military compliance with environmental laws, reform of Superfund cleanup
requirements for federal facilities, 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. A similar body of legislation to address these and other issues
may possibly be considered during the 108th Congress. Each bill in the 107th
Congress that addressed the above issues is discussed below.
Removal and Remediation of Unexploded Ordnance
Representative Anibal Acevedo-Vila introduced the Underwater Unexploded
Ordnance Removal Act of 2001 (H.R. 3212) on November 1, 2001. The bill would
have directed 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 have required 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.
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Endangered and Threatened Species
Senator Gordon Smith introduced the Endangered Species Recovery Act of
2001 (S. 911) on May 17, 2001. It would have required 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 have required 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 have clarified 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)
are subject to substantive and procedural requirements under federal and state
environmental laws to the same extent as other entities. The bill also would have
waived any immunity of the United States with respect to requirements under federal
and state environmental laws, and it would have required 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 have extended their applicability to all other federal
environmental laws and state statutes as well. These provisions were similar, but
broader in scope, to legislation introduced in the 106th Congress.
H.R. 2154 also would have specified the applicability of the National
Environmental Policy Act to the development and procurement of weapons systems
that require congressional authorization. Additionally, the bill would have permitted
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 have allowed 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.
Superfund Reform
Representative Sherwood Boehlert introduced the Recycle America’s Land Act
of 2001 (H.R. 324) on January 31, 2001. The bill included numerous reforms to the
Superfund program that could have affected DOD’s cleanup activities. First, it
would have revised the remedy selection process which might have helped to reduce
cleanup expenses at some sites. However, other provisions related to the state role
at DOD’s cleanup sites could have caused costs to rise. The bill would have granted
states the legal authority to make final determinations on which cleanup remedies are
used at hazardous waste sites on defense and other federal facilities that are being
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cleaned up under CERCLA through interagency agreements. Cleanup costs at such
sites could have been higher if states insisted on measures that were more expensive
to implement than those preferred by federal agencies. States would have been
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 have granted 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 have been assessed against
DOD or other federal agencies for not complying. These provisions were 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 have expanded 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 seriously harm the environment. This authority would have applied to
“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 have authorized 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 was 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 have been authorized to
acquire mercury from these sources for transfer to a designated military installation.
The bill also would have directed 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 have been 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 have been
transferred back from DOD to the new facilities.
Three other bills sought 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 have required DOD to
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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 have
included 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 have required DOD to submit a report to
Congress on the use of mercury and mercury compounds for national defense
purposes. However, the Senate bill included provisions that would have prohibited
the sale of mercury from the National Defense Stockpile, domestically or
internationally, for commercial or industrial use. This prohibition would have been
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 have
focused primarily on reducing the release of mercury from thermometers, it also
would have established 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 have served 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 have required
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 have
been required to establish a working group, including DOD, to conduct the study.
As one of many areas of consideration, the study would have addressed issues
involved in identifying and regulating air and noise pollution that are unique to
military air bases and stations. EPA would have been 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 have required 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
have required DOD to suspend all uses of depleted uranium munitions due to
potential threats to human health. The findings of the bill indicated that depleted
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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 proposed by the bill would have remained in effect
until the Secretary of Health and Human Services certified 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 proposing a suspension of the use of depleted uranium munitions,
H.R. 3155 would have required 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 map for each site. EPA would have been 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 have included information on the extent of
such contamination, made site-specific recommendations for the mitigation and
cleanup of each contaminated site, and made general recommendations on the
cleanup of sites where depleted uranium munitions have been used on foreign lands.
Based on EPA’s report, DOD would have been 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 have been required to report to Congress on the
status of cleanup progress. The bill would have required 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.
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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