Order Code RL32537
CRS Report for Congress
Received through the CRS Web
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2005
Updated September 17, 2004
David M. Bearden
Analyst in Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2005
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. The Department of Energy
(DOE) is responsible for managing defense nuclear waste and cleaning up
contaminated nuclear weapons sites. In the second session of the 108th Congress, the
most controversial environmental issues have been: whether to provide further
exemptions for military readiness activities from certain air quality and
environmental cleanup requirements, and whether to provide DOE with the authority
to classify certain high-level radioactive wastes at former nuclear weapons sites in
a manner that would permit these wastes to be permanently disposed of on-site in
Washington, Idaho, and South Carolina.
The House and Senate have passed their respective versions of the National
Defense Authorization Act for FY2005 (H.R. 4200). The bill has now moved to
conference. The House would authorize the Administration’s request of $1.31 billion
for cleanup at active military installations and former defense sites, whereas the
Senate would authorize $1.35 billion. The increase in the Senate bill would be
devoted to former defense sites. Both the House and Senate would authorize the
Administration’s request of $246 million for base closure activities, including
environmental cleanup. Neither the House nor Senate bill includes the environmental
exemptions that DOD proposed. For DOE’s cleanup of former nuclear weapons
sites, the House would authorize $6.91 billion, $40 million less than requested. The
House would not provide the authority that DOE requested for the permanent on-site
disposal of high-level radioactive wastes in Washington, Idaho, and South Carolina.
The Senate would authorize $6.95 billion for the cleanup of former nuclear weapons
sites, and would provide targeted authority for permanent on-site disposal of high-
level radioactive wastes only in South Carolina.
Although action on FY2005 defense authorization legislation is not complete,
the President has signed the Department of Defense Appropriations Act for FY2005
into law (P.L. 108-287, H.R. 4613). It provides $1.36 billion for cleanup at active
military installations and former defense sites, $50 million more than requested.
Funds for defense-related environmental activities also would be provided in the
Military Construction Appropriations Act for FY2005 (H.R. 4837 and S. 2674) and
the Energy and Water Development Appropriations Act for FY2005 (H.R. 4614). As
passed by the House, H.R. 4837 would provide the Administration’s request of $246
million for base closure activities, including environmental cleanup, the same as S.
2674 as reported. As passed by the House, H.R. 4614 would provide $6.89 billion
for the cleanup of former nuclear weapons sites, $60 million less than requested.
H.R. 4614 would not appropriate any funding for the permanent on-site disposal of
high-level radioactive wastes in Washington, Idaho, or South Carolina, as DOE
proposed. This report will be updated as developments warrant.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Environmental Activities on Military Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Pollution Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Environmental Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Military Readiness Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Congressional Action on Environmental Exemptions . . . . . . . . . . . . . . . . . . . . . . 9
Cleanup of Former Nuclear Weapons Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Applicable Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Appropriations Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Administration’s Cleanup Reform Initiative . . . . . . . . . . . . . . . . . . . . . . . . 12
High-level Waste Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cleanup of Other Radioactive Contamination . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Authorization Legislation for FY2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cleanup of Current and Former Military Lands . . . . . . . . . . . . . . . . . . . . . . 15
Cleanup of Former Nuclear Weapons Sites . . . . . . . . . . . . . . . . . . . . . . . . . 16
Appropriations for FY2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Military Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Energy and Water Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
List of Figures
Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 through FY2004 Enacted and the
FY2005 Administration Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
List of Tables
Table 1. Defense Environmental Restoration Accounts: FY2004 Enacted,
FY2005 Request, and Action on Appropriations . . . . . . . . . . . . . . . . . . . . . 18
Table 2. Base Realignment and Closure Account: FY2004 Enacted,
FY2005 Request, and Action on Appropriations . . . . . . . . . . . . . . . . . . . . . 19
Table 3. Defense Environmental Management Accounts: FY2004 Enacted,
FY2005 Request, and Action on Appropriations . . . . . . . . . . . . . . . . . . . . . 20
Defense Cleanup and Environmental
Programs: Authorization and
Appropriations for FY2005
Introduction
In response to requirements under federal environmental laws, the Department
of Defense (DOD) administers five programs to address cleanup and other
environmental needs on over 30 million acres of land located on active military
installations, and on former military properties. In addition to DOD’s environmental
programs, the Department of Energy (DOE) is responsible for managing defense
nuclear waste, and cleaning up contamination at former nuclear weapons sites. (See
Figure 1 for a history of funding for these activities and the Administration’s
FY2005 request.) The Environmental Protection Agency (EPA) and the states are
responsible for providing oversight and enforcing applicable laws and regulations.
Congress authorizes defense-related environmental programs in the annual
authorization bill for National Defense, but it funds these programs under three
appropriations bills. Environmental cleanup at 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. Environmental cleanup at bases that have been
designated for closure since 1988 is funded in the annual appropriations bill for
Military Construction. DOE’s management of defense nuclear waste and cleanup of
contamination at former nuclear weapons sites is funded in the annual appropriations
bill for Energy and Water Development.
The FY2005 appropriations bill for the Department of Defense has been signed
into law. To date, defense authorization legislation is in conference, and
consideration of the appropriations bills for Military Construction and Energy and
Water Development has begun. Among the prominent issues in the debate of
authorization legislation and appropriations for FY2005 have been (1) the adequacy,
cost, and pace of environmental cleanup; (2) whether additional environmental
exemptions are needed to preserve military training capabilities; and (3) whether to
provide DOE with the authority to classify certain high-level radioactive wastes in
a manner that would permit these wastes to be permanently disposed of on-site in
Washington, Idaho, and South Carolina, rather than in a centralized geologic
repository, such as Yucca Mountain in Nevada.
This report provides background information on each defense-related
environmental program, discusses key funding issues, and examines relevant
provisions in authorization legislation and appropriations for FY2005.
CRS-2
Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 through FY2004 Enacted and the FY2005 Administration Request
Billions of Dollars
14.00
12.00
10.92
10.51
10.63
10.82
10.79
11.07
10.54
9.93
9.97
10.19
10.31
10.26
9.92
10.00
8.00
7.36
6.00
5.25
4.00
3.05
2.00
0.00
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004 2005R
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
0.23
0.25
0.19
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
0.23
0.22
0.17
0.17
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
0.16
0.14
0.17
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
0.61
0.54
0.34
0.32
Current and Former Site Cleanup
0.60
1.07
1.13
1.64
1.97
1.48
1.41
1.31
1.30
1.27
1.30
1.31
1.27
1.31
1.34
1.31
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
1.67
1.75
1.56
1.67
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
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
6.48
6.72
6.60
6.95
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.
2005R = Administration Request for FY2005
CRS-3
Environmental Activities on Military Lands
DOD administers five environmental programs to comply with federal
environmental laws on lands within its jurisdiction. In terms of funding, the two
largest programs focus on cleaning up past contamination and on complying with
pollution control laws and regulations that apply to day-to-day operations at military
installations. Three other programs have smaller budgets. They focus on pollution
prevention, environmental technology, and conservation of natural and cultural
resources.1 While there are line-item accounts in defense authorization legislation
and appropriations bills for environmental cleanup, there are no line-item accounts
for DOD’s other environmental activities. Instead, they are funded out of
appropriations for the following accounts: Operation and Maintenance, Procurement,
Military Construction, and Research and Development. DOD allocates funding out
of these accounts based on the availability of annual appropriations and the
competing needs of national security activities.
DOD proposed a total of $3.82 billion in funding for all of the above
environmental activities for FY2005, $17 million more overall than the amount of
$3.80 billion in FY2004. Among the individual programs, DOD has proposed an
increase in funding for compliance, conservation, and pollution prevention, and a
decrease for cleanup and environmental technology. Background information on
each of these programs, key funding issues, and the Administration’s FY2005 request
are discussed below. Relevant provisions in defense authorization legislation and
appropriations for FY2005 are discussed later in this report.
Environmental Cleanup. DOD administers a Defense Environmental
Restoration Program to investigate and clean up hazardous waste sites at active and
closed military installations, and other former military properties located in the
United States. This program is divided into two subcomponents. The Military
Munitions Response Program addresses the removal of unexploded ordnance (UXO)
and other munitions on former training ranges, and the cleanup of munitions-related
contamination. The Installation Restoration Program addresses the cleanup of non-
munitions contamination at all other areas on military sites. EPA and the states are
responsible for overseeing the cleanup of these lands to ensure that DOD complies
with applicable requirements.2 The Defense Environmental Restoration Program
does not address cleanup at overseas military installations. Rather, the commanding
1 For additional information on each program, refer to the Defense Environmental Network
and Information Exchange (DENIX) website at [http://www.denix.osd.mil].
2 DOD is subject to the requirements of two federal statutes in conducting its cleanup
activities: the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) and the Resource Conservation and Recovery
Act (RCRA). CERCLA addresses the release or threatened release of hazardous substances
in the United States, and requires contamination to be cleaned up to a level that is protective
of human health and the environment (42 U.S.C. 9601 et seq.). RCRA specifies
requirements for storing and disposing of solid and hazardous waste, and requires corrective
action to clean up environmental contamination that occurs as a result of storage and
disposal practices (42 U.S.C. 6901 et seq.). With authorities provided by these statutes,
DOD is also subject to state cleanup requirements.
CRS-4
officer of each overseas installation is responsible for administering the cleanup of
contamination on these properties in accordance with applicable requirements of the
host nation.3
Active Installations and Former Military Properties. Funding for
cleanup at active 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).4 For the past several years, annual appropriations for these five accounts
combined has been around $1.30 billion, fluctuating somewhat from year to year.
For FY2005, the Administration has requested $1.31 billion for the above
accounts, $34 million less overall than the FY2004 appropriation of $1.34 billion.
Among the individual accounts, cleanup funding for Army, Navy, and Air Force sites
would increase by varying amounts, whereas the FUDS account would decrease by
nearly $68 million. The adequacy of funding for cleanup at FUDS sites has been a
contentious issue, as some of these properties are now being used for civilian
purposes that may present a pathway of human exposure to contamination. Some
FUDS sites also were the location of former training ranges where unexploded
ordnance and other munitions hazards may be present.
As of the end of FY2003, DOD estimated that $29.90 billion would be needed
to complete cleanup at active military installations and FUDS sites.5 Of this amount,
$16.30 billion would be for the removal of unexploded ordnance and cleanup of
munitions-related contamination. DOD has not completed its investigation of former
training ranges under the Military Munitions Response Program. Estimates of
cleanup funding needs may increase in future years as the extent of safety hazards
and munition-related contamination is determined, and additional sites with
unexploded ordnance are identified.
Military Base Closures. Cleanup at base closure sites is authorized
separately under the Base Realignment and Closure (BRAC) Account in the annual
authorization bill for National Defense. (Base closure sites are separate from FUDS
sites, which were decommissioned prior to 1988.) Appropriations for base closure
activities, including cleanup, are provided under the BRAC account in the annual
appropriations bill for Military Construction. Congress authorized four rounds of
3 The cleanup of contamination at overseas military installations is subject to requirements
specified in 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.
4 FUDS sites are properties that DOD owned or leased in the past and are now devoted to
civilian uses. Many of the FUDS sites were used during World War II and prior years.
5 Department of Defense. Defense Environmental Restoration Program Annual Report to
Congress for FY2003. April 2004. Appendix B, p. B-6-1, p. B-10-1, and Appendix C, p.
C-6-1, p. C-9-1.
CRS-5
base closures in 1988, 1991, 1993, and 1995, and established a separate BRAC
account for each round. These accounts have now been consolidated into one
account. The closure and realignment of military bases designated under these four
rounds was complete in FY2001. Since that time, BRAC funds have only been used
to pay environmental cleanup expenses. In addition to appropriations to the BRAC
accounts, proceeds from the sale or lease of property on closed bases support cleanup
of contamination on these lands.
Total cleanup funding for base closure sites has declined in recent years from
$830 million in FY1998 to $344 million in FY2004. Although funding has declined
over the past several years, DOD continues to estimate substantial funding needs for
cleanup. As of the end of FY2003, DOD estimated that $3.32 billion in additional
funding would be necessary to complete all planned cleanup actions at base closure
sites.6 Funding needs for cleanup at base closure sites may rise in future years if
additional military bases are selected for closure. The National Defense
Authorization Act for FY2002 (P.L. 107-107) authorized a new round of base
closings in 2005.7
The expense of closing and realigning additional bases, and the costs of cleaning
up these bases for other land uses, would cause funding needs for the BRAC account
to rise. The amount of funding that would be necessary to clean up additional base
closure sites would depend on the type and extent of contamination, and the actions
that would be necessary to protect human health and the environment. The degree
of cleanup that is required depends on the intended land use of the property after it
is transferred. Cleanup at active military installations is typically based on industrial
land use, which allows the least stringent cleanup standards to be applied. The
cleanup required at such installations could become more stringent, if they were
closed and transferred for other land uses that would present a higher possibility of
human exposure to contamination, such as residential development.
The adequacy of funding to meet cleanup needs at base closure sites has been
a contentious issue, due to potential risks to human health and the environment, and
the public’s desire to redevelop these properties for civilian uses. The completion of
cleanup is key to redevelopment, because the land cannot be used for its intended
purpose until it is cleaned up to the extent that it would be safe for that purpose. In
March 2004, the General Accounting Office (GAO, now renamed the Government
Accountability Office) reported that 44% of the land on closed military bases had not
been transferred for redevelopment as of the end of FY2003. GAO stated that
“environmental cleanup has long been a key factor in slowing the transfer process.”8
The Administration would continue the downward trend in cleanup funding for
base closure sites in FY2005. The President’s FY2005 budget includes $246 million
6 Ibid., Appendix B, p. B-10-1, and Appendix C, p. C-9-1.
7 For further information, see CRS Report RS21822, Military Base Closures: DOD’s 2005
Internal Selection Process, by Daniel Else and David Lockwood.
8 General Accounting Office. Military Base Closures: Observations on Preparations for the
Upcoming Base Realignment and Closure Round. GAO-04-558T. March 25, 2004. pp. 9-
10.
CRS-6
for the BRAC account. This amount is $124 million less than the FY2004
appropriation of $370 million. DOD has proposed to allocate $322 million for
cleanup at base closure sites in FY2005, using the funds that it has requested for the
BRAC account, along with unobligated funds from prior year appropriations and
proceeds from the sale and lease of base closure properties. This funding level is $22
million less than DOD’s allocation of $344 million for FY2004.
Environmental Compliance. In general, DOD and all other federal agencies
are required to comply with federal laws and regulations to control pollution to the
same extent as any other entity. However, numerous federal pollution control
statutes include exemptions for purposes of national security, or for activities that are
in the “paramount interest” of the United States.9 EPA and the states are authorized
to take enforcement action against DOD, including the assessment of fines and
penalties, if the Department does not comply with applicable requirements for which
an exemption has not been granted. The granting of such exemptions has been
extremely rare, resulting in DOD being subject to pollution control requirements for
most all of its routine operations.10
The federal pollution control statutes that most commonly apply to routine
military operations include the Clean Air Act, Clean Water Act, Resource
Conservation and Recovery Act (RCRA), and Safe Drinking Water Act. Common
types of environmental compliance projects at military installations include 1) storing
and disposing of solid and hazardous waste, 2) replacing and upgrading wastewater
treatment plants, 3) monitoring the effectiveness of wastewater treatment systems,
and 4) testing and replacing underground storage tanks.
DOD did not begin to track the amount of funding spent on environmental
compliance activities until FY1990. DOD allocates funding for compliance from
several accounts, including Operation and Maintenance, Military Construction, and
Procurement. DOD’s budget for environmental compliance peaked at $2.23 billion
in FY1996, and there has been an overall downward trend in compliance costs since
that time. DOD attributes this decline to the success of its pollution prevention
efforts to reduce the generation of waste, lessening the need for treatment and
disposal and other compliance actions. However, DOD estimates that it will need to
9 The authority for exemptions from pollution control requirements for federal facilities are
included in: the Clean Air Act [42 USC 7418(b)], Clean Water Act [33 USC 1323(a)],
Resource Conservation and Recovery Act [42 USC 6961(a)], and Safe Drinking Water Act
[42 USC 300(j)(6)]. Exemption authority is also provided in the Comprehensive
Environmental Response, Compensation, and Liability Act [42 USC 9620(j)], Endangered
Species Act [16 USC 1536(j)], Marine Mammal Protection Act [16 USC 1371(f)], and
Noise Control Act [42 USC 4903]. For additional information, see CRS Report RS21217,
Exemptions for Military Activities in Federal Environmental Laws, by Robert Meltz.
10 For example, a Presidential exemption from solid and hazardous waste requirements under
RCRA has been granted on an annual basis for the Air Force’s Groom Lake facility in
Nevada. President Bush granted the most recent exemption for this facility in September
2003. (68 Federal Register 60277.) The exemption is scheduled to expire in September
2004. Based on past precedent, it likely will continue to be renewed on annual basis, as long
as classified activities continue at this facility. Groom Lake is the only military installation
in the United States that receives an annual exemption from an environmental requirement.
CRS-7
allocate more funding for compliance in FY2005 to meet wastewater and
underground storage tank requirements and various requirements applicable to Navy
training ranges, as well as the need for greater funding to pay increased manpower
costs. For FY2005, DOD estimates that it will need to allocate a total of $1.67
billion to comply with applicable pollution control requirements at its installations,
$104 million more than in FY2004.11
Pollution Prevention. The purpose of the Pollution Prevention Program is
to reduce or eliminate waste and pollution, as a means to lower the costs of
environmental compliance and to prevent future cleanup liabilities. As noted above,
DOD attributes the overall downward trend in environmental compliance costs to the
success of its pollution prevention efforts. This program seeks to reduce: 1) the use
of hazardous materials, 2) the production of solid waste, and 3) the release of toxic
substances, air emissions, and water pollution. Through this program, DOD also
funds the implementation of executive orders on waste prevention, recycling, and
procurement of environmentally preferable products. The pollution prevention
budget has ranged from $340 million in FY1994 to $165 million in FY2004. DOD
allocates funding for this program from the accounts for Operation and Maintenance,
Military Construction, and Procurement. For FY2005, DOD plans to allocate $171
million, nearly $6 million more than in FY2004.12 The increase would support Navy
programs to reduce water pollution from vessels.
Environmental Technology. The environmental technology program
supports the research and development of more efficient and less costly methods to
manage solid and hazardous waste. These efforts are aimed at helping DOD to
comply more easily with pollution control laws and regulations. The program also
supports the research and development of more effective and less costly methods to
clean up contamination in soil, surface water, and groundwater. Integral to the
cleanup of former training ranges, the program supports the research and
development of advanced technologies to detect unexploded ordnance. Some
Members of Congress, states, environmental organizations, and communities have
advocated higher funding for the development of detection technologies that would
help to improve the accuracy and pace of identifying safety hazards for removal. The
environmental technology budget has ranged from $430 million in FY1993 to around
$210 million in FY1997 and FY1998. DOD allocates funding for environmental
technology out of its Research, Development, Test, and Evaluation Accounts. DOD
plans to allocate $186 million for FY2005, $64 million less than in FY2004.13 The
proposed decrease is due to the completion of several projects administered by the
Army to research new cleanup and pollution prevention technologies.
Conservation. The conservation program aims to protect the natural,
historical, and cultural resources of over 30 million acres of public land that DOD
administers. Activities funded under this program are necessary to comply with
11 Department of Defense. Operation and Maintenance Overview: FY2005 Budget
Estimates. February 2004. p. 112.
12 Ibid.
13 Ibid., p. 113.
CRS-8
federal laws that protect such resources, including the Endangered Species Act and
the National Historic Preservation Act. The conservation budget has ranged from
$180 million in FY2001 to $90 million in FY1997. DOD allocates funding for
conservation from the accounts for Operation and Maintenance, Military
Construction, and Procurement. DOD estimates that it will need to allocate $169
million in FY2005 to comply with resource protection requirements and to support
related activities, nearly $28 million more than in FY2004.14 The increase in funding
would be for the purchase of conservation easements on lands adjacent to military
installations. These lands would serve as buffers to ease the burden of habitat
management on military installations, as a means of preventing encroachment on
lands needed for training. Congress provided the authority for this practice in the
National Defense Authorization Act for FY2003 (P.L. 107-314). (For further
discussion, see CRS Report RL31456, Defense Cleanup and Environmental
Programs: Authorization and Appropriations for FY2003, by David M. Bearden.)
Military Readiness Issues
A prominent issue has been the extent to which requirements to clean up
contamination, control pollution, and protect natural resources restrict the use of
military lands for training. Central to this issue is whether environmental exemption
authority should be expanded to preserve training capabilities. As discussed earlier,
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. These exemptions provide the President with the authority to suspend
compliance requirements for actions at federal facilities on a case-by-case basis.
Such exemptions may be granted if doing so would be either in the “paramount
interest of the United States” or in the “interest of national security.” Most of these
exemptions are limited to one year, but can be renewed.15
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, some Members of Congress, states, environmental
organizations, and communities have opposed such modifications, pointing to the
lack of data to demonstrate the extent to which environmental requirements have
restricted training exercises and compromised readiness overall. They argue that
expanding exemption authority without justification for its need would unnecessarily
weaken environmental protection.
14 Ibid.
15 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.
CRS-9
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. In 2002,
GAO 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.16 However, GAO noted individual
instances of environmental restrictions at numerous military installations, and in light
of this fact, recommended that DOD’s reporting system be improved to more
accurately identify problems for training that might be attributed to restrictions
imposed by environmental requirements. A more recent GAO report found that
environmental restrictions are only one of several factors, including urban growth,
that affect DOD’s ability to carry out training activities, and that DOD continues to
be unable to measure the impact of encroachment on readiness.17
Congressional Action on Environmental Exemptions
As part of its defense authorization proposals for FY2003, FY2004, and
FY2005, DOD submitted a Readiness and Range Preservation Initiative (RRPI) to
Congress, requesting targeted exemptions for military readiness activities.18 DOD
proposed this initiative in response to its stated concern that environmental
requirements have increasingly imposed restrictions on combat training exercises, a
key component of military readiness. The initiative originally proposed targeted
exemptions for military readiness activities from certain requirements under six
environmental laws: Clean Air Act, Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), Endangered Species Act, Marine
Mammal Protection Act, Migratory Bird Treaty Act, and Resource Conservation and
Recovery Act (RCRA).
Thus far, Congress has provided modified versions of DOD’s proposed
exemptions from wildlife protection requirements under three of the above statutes.
These exemptions were contentious, and there was considerable debate prior to their
enactment. The National Defense Authorization Act for FY2003 provided a broad
exemption for military readiness activities from the Migratory Bird Treaty Act.19
(See CRS Report RL31456, Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2003.) The National Defense Authorization
Act for FY2004 provided an exemption from the designation of critical habitat under
the Endangered Species Act on military lands, if certain conditions are met.20 Other
provisions of that act provided a broad exemption from the Marine Mammal
16 General Accounting Office. Military Training: DOD Needs a Comprehensive Plan to
Manage Encroachment on Training Ranges. GAO-02-727T. May 2002.
17 General Accounting Office. Military Training: DOD Approach to Managing
Encroachment on Training Ranges Still Evolving. GAO-03-621T. April 2003.
18 DOD’s legislative proposal for FY2005 and its justification are available at DOD’s
website at [https://www.denix.osd.mil/denix/Public/Library/Sustain/RRPI/rrpi.html].
19 P.L. 107-314, Section 315.
20 P.L. 108-136, Section 318.
CRS-10
Protection Act for “national defense.”21 The act also modified the definition of
“harassment” of marine mammals, as it applies to military readiness activities, and
required the consideration of impacts on military readiness in the issuance of permits
for incidental takings. (See CRS Report RL32183, Defense Cleanup and
Environmental Programs: Authorization and Appropriations for FY2004.)
In defense authorization legislation and appropriations for FY2003 and FY2004,
Congress did not provide the exemptions from the Clean Air Act, RCRA, and
CERCLA, which DOD had requested. None of the defense authorization and
appropriations bills for FY2005 include exemptions from these three statutes either,
as discussed later in this report. While the exemptions that Congress has granted
were contentious to those concerned about the weakening of wildlife protections,
there has been broader opposition to exemptions from the Clean Air Act, RCRA, and
CERCLA, due to concern about risks to human health from the potential exposure
to air pollution and hazardous substances.
As proposed by DOD, the Clean Air Act language would exempt emissions
generated by military readiness activities from requirements to “conform” to State
Implementation Plans (SIPs) for achieving federal air quality standards. Under
current law, activities of federal agencies which would increase emissions beyond
limitations established in a state’s SIP are prohibited, unless offsetting reductions
from other sources are made. DOD argued that this exemption would provide greater
flexibility for transferring training operations to areas with poor air quality, without
the possibility of restrictions on these operations due to the emissions that they would
produce. DOD stated that the impact on air quality would be minimal, claiming that
its emission are relatively minor compared to other sources. States, environmental
organizations, and public health advocates argued that the impacts on air quality
could be greater and present a risk to human health, especially if localized “hot spots”
of pollution were to develop in communities adjacent to military installations where
emissions were not controlled.
DOD’s proposed exemptions from RCRA and CERCLA would define “solid
waste” and “release” in federal statute as not including military munitions on
operational ranges. Whether environmental cleanup requirements under these two
statutes apply depends on whether a substance is a solid waste, or whether there has
been a release of a hazardous substance. In effect, the proposed exemption would
allow munitions and munitions-related contamination to remain on a training range
indefinitely, as long as the range remained operational. DOD stated that this
exemption would codify existing federal regulations under the Military Munitions
Rule, and argued that it would not present greater risks to human health and the
environment. Some Members of Congress, states, environmental organizations, and
communities countered that the proposed language was broader than current
regulation, and that the definition of operational range would allow DOD to designate
practically any lands on a military installation as such, thereby exempting munitions
and related contamination from environmental cleanup.
21 P.L. 108-136, Section 319.
CRS-11
The above and other issues were addressed in a hearing held jointly by the
Subcommittee on Energy and Air Quality and the Subcommittee on Environment and
Hazardous Materials of the House Energy and Commerce Committee on April 21,
2004. Some Members stated their support for greater environmental compliance
flexibility for military readiness purposes. Other Members highlighted the lack of
data to determine the extent to which such flexibility was needed, and expressed
concern that the impacts of the proposed exemptions on human health and the
environment would be greater than DOD had characterized. Issues were also raised
in association with this hearing as to whether the House Energy and Commerce
Committee or the House Armed Services Committee had jurisdiction over DOD’s
proposal. Subsequent to the contentious hearing debate, exemptions from the Clean
Air Act, RCRA, or CERCLA have not been included in FY2005 defense
authorization legislation and appropriations bills.
Cleanup of Former Nuclear Weapons Sites
At the end of the Cold War in the late 1980s, the United States ceased its
production of nuclear weapons. However, radioactive and other hazardous wastes
generated from the production of nuclear weapons continue to pose a risk to human
health and the environment. Since the beginning of the U.S. atomic energy program,
the Department of Energy (DOE) and its predecessor agencies have been responsible
for managing the production of 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. In 1989, the Bush
Administration established an Environmental Management Program within DOE to
consolidate the Department’s efforts to clean up contamination from defense nuclear
waste, as well as waste from civilian nuclear energy research.22
Applicable Requirements. In carrying out the Environmental Management
Program, DOE is subject to requirements of the Atomic Energy Act of 1954,
CERCLA, and RCRA. DOE is not subject to external agency oversight of its
compliance with the Atomic Energy Act. However, EPA and the states play a
significant oversight role in DOE’s compliance with CERCLA and RCRA. DOE has
signed numerous legally binding compliance agreements with EPA and the states to
perform cleanup activities and dispose of wastes according to specific deadlines,
which would fulfill the requirements of these two latter statutes.
Cleanup Status and Costs. Much attention has focused on the amount of
time and money needed to treat, manage, and dispose of defense nuclear waste and
to clean up related contamination. The waste management and cleanup challenges
are substantial. DOE reports that there are 114 large sites in 31 states and one U.S.
territory where the production of nuclear weapons, and civilian nuclear energy
research and development activities, resulted in radioactive and other hazardous
contamination. Together, these sites occupy approximately 2 million acres, which is
equivalent to the land area of Rhode Island and Delaware combined.
22 For additional information on the Environmental Management Program, refer to DOE’s
website at [http://www.em.doe.gov].
CRS-12
According to DOE, all response actions were complete at 76 of these sites as of
the end of FY2003, at a cost of approximately $70 billion. However, most of the
sites that have been cleaned up thus far are relatively small and are among the least
hazardous. The sites where cleanup remains underway contain some of the most
severely contaminated areas. DOE estimates that cleanup at the remaining sites will
not be complete until 2035, at a cost of $142 billion. The greatest outstanding
cleanup liabilities are at defense sites that were involved in the production of nuclear
weapons.
Appropriations Accounts. Two appropriations accounts fund cleanup at
defense nuclear waste sites. The Defense Site Acceleration Completion Account
provides funding for activities that are directly involved in the cleanup of
contaminated sites and the acceleration of site completion. The Defense
Environmental Services Account funds activities that indirectly support the mission
of accelerated cleanup and closure, such as policy development and coordination, and
the integration of mission activities across the complex of sites. Congress authorizes
funding for these accounts in the annual authorization bill for National Defense, and
appropriates funding for these activities in the annual appropriations bill for Energy
and Water Development.
Administration’s Cleanup Reform Initiative. At the Administration’s
request, Congress established these two accounts in FY2004 to focus funding on
DOE’s cleanup reform initiative to lower costs and speed the pace of cleanup.23 DOE
launched its cleanup reform initiative in FY2003. While there has been broad
support for accelerating cleanup and reducing costs, questions have been raised as to
how these goals could be achieved without weakening environmental protection.
DOE’s initiative is based on assessing the risk of exposure to determine which
cleanup remedies are selected. Risk is currently one of many factors that DOE uses
to select cleanup remedies. Altering the current process to use risk as the primary
factor could result in decisions to contain waste on site as a means of preventing
exposure, rather than removing it. While containment can often be accomplished
more quickly and at less cost, the possibility of future exposure remains if the method
of containment fails over time. Some Members of Congress, states, environmental
organizations, and communities have expressed concern about this approach.
DOE has proposed to continue its cleanup reforms in FY2005 and has
requested a total of $6.95 billion for the two above accounts. Of this amount, $5.97
billion would be allocated to the Defense Site Acceleration Completion Account, and
$982 million would be allocated to the Defense Environmental Services Account.
The total request for both accounts is approximately $350 million more than the
FY2004 appropriation of $6.60 billion.
23 Congress previously authorized and appropriated funding for the cleanup of defense
nuclear wastes sites under three accounts: Defense Environmental Restoration and Waste
Management Account, Defense Facilities Closure Projects Account, and Defense
Environmental Management Privatization Account. Prior to these accounts, Congress set
aside funding for cleanup of these sites under the Atomic Energy Defense Activities
Account, which was a centralized account that funded multiple purposes.
CRS-13
High-level Waste Proposal. As part of the Administration’s cleanup reform
initiative, the requested $350 million increase would fund a “High-level Waste
Proposal” to speed the closure of tanks storing high-level radioactive and other
chemical wastes at the Hanford site in Washington, the Savannah River site in South
Carolina, and at the Idaho National Engineering and Environmental Laboratory
(INEEL). The volume of these wastes is substantial. For example, DOE reports that
at the Hanford site there are over 50 million gallons of high-level radioactive and
chemical wastes stored beneath the surface in 177 tanks. The tank wastes at Hanford,
and the other two sites, that are classified as “high-level” radioactive wastes must be
removed and safely stored in a centralized geologic repository, as required by the
Nuclear Waste Policy Act of 1982. (For more information, see CRS Report
RL32163, Radioactive Waste Streams: An Overview of Waste Classification for
Disposal, by Anthony Andrews.)
DOE has proposed to speed the closure of the tanks at these three sites by
classifying some of the waste as “incidental to reprocessing,” and to dispose of it as
low-level waste by mixing and immobilizing it with a cement “grout” inside the tank.
Some Members of Congress, states, environmental organizations, and communities
have opposed DOE’s proposal, arguing that none of the tank wastes should be
allowed to remain in place because of the possibility that the grouting could
deteriorate over the long-term and allow contamination to migrate, creating pathways
of exposure. However, others assert that methods to remove all of the tank residues
would generate a new hazardous waste stream that would need to be managed
properly to prevent exposure. There also could be significant risks of exposure to
workers inside the tanks who would be tasked with removing the residues.
Thus far, DOE has grouted high-level radioactive wastes in two tanks at the
Savannah River site. The Natural Resources Defense Council (NRDC) legally
challenged DOE’s authority to dispose of these wastes in this manner. In 2003, the
U.S. District Court for Idaho ruled that DOE does not have the authority to classify
the tank wastes at the Savannah River site, or any other site, as anything other than
high-level radioactive waste.24 Consequently, these wastes would have to be
removed and disposed of in a centralized geologic repository as required by the
Nuclear Waste Policy Act.
The Secretary of Energy has asked Congress to enact legislation that would
provide DOE with statutory authority to classify some of the tank wastes as
incidental to reprocessing at Hanford, Savannah River, and the INEEL, thereby
exempting them from disposal requirements for high-level radioactive waste in the
Nuclear Waste Policy Act. If this authority were provided, whether the wastes could
be left in the tanks and grouted in place would ultimately depend on the concurrence
of state regulatory agencies who issue the permits for tank closures. DOE’s FY2005
budget justification document indicates the Administration will request the $350
million for its High-level Waste Proposal after the above legal issues are resolved.
However, the budget justification appears contradictory, as the $5.97 billion
requested for the Defense Site Acceleration Completion Account does include this
$350 million as part of the total request for the Environmental Management Program.
24 NRDC v. Abraham, 271 F. Supp. 2d. 1260 (D. Id. 2003).
CRS-14
Cleanup of Other Radioactive Contamination
In addition to former nuclear weapons production sites, smaller sites were
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. The
majority of these sites were owned and operated by private contractors from the
1940s to the 1960s. Cleanup at these sites is performed under the Formerly Utilized
Sites Remedial Action Program (FUSRAP), currently administered by the Army
Corps of Engineers. DOE’s predecessor agency, the Atomic Energy Commission,
established this program in 1974 under authorities provided in the Atomic Energy
Act. In response to concerns about the pace and cost of cleanup under DOE’s
management, 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.
The Corps reports that a total of 49 sites with radioactive contamination have
been identified since 1974, and that cleanup is complete at 28 of these sites. As of
April 2004, the Corps reported that cleanup was ongoing or planned at the remaining
21 sites.25 Prior to FY1998, cleanup at these sites was funded out of available funds
allocated to DOE’s former Defense Environmental Restoration and Waste
Management Account, and to the prior Atomic Energy Defense Activities Account.
Since the creation of a dedicated account for FUSRAP and transfer of the program
to the Corps, Congress has provided approximately $140 million in annual funding.
The Administration has requested this amount again for FY2005.
Authorization Legislation for FY2005
The House passed the National Defense Authorization Act for FY2005 (H.R.
4200, H.Rept. 108-491) on May 20, 2004. The Senate passed its version of the bill
(S. 2400, S.Rept. 108-260) on June 23, 2004. The Senate then incorporated the text
of S. 2400 into H.R. 4200 as a substitute amendment, passing this latter measure as
well. The Senate appointed its conferees on H.R. 4200 on June 24, 2004. Both bills
would authorize funding for national defense programs, including defense-related
environmental activities administered by DOD and DOE. As in past years, both bills
specify funding levels for environmental cleanup on current and former military lands
and at former nuclear weapons sites. They do not specify funding for DOD’s other
environmental activities, including environmental compliance, conservation,
pollution prevention, and environmental technology. Funding for these activities
would be authorized as part of the accounts for Operation and Maintenance, Military
Construction, Procurement, and Research and Development.
Both bills also include provisions that address various environmental issues
related to defense activities. Among the most controversial are provisions in the
Senate bill that, in effect, would amend the Nuclear Waste Policy Act to provide
targeted authority in South Carolina for DOE to classify certain high-level radioactive
25 U.S. Army Corps of Engineers. Formerly Utilized Sites Remedial Action Program
Update. April 2004. p. 3. For further information, refer to the Army Corps of Engineers
website at [http://hq.environmental.usace.army.mil/programs/fusrap/fusrap.html].
CRS-15
wastes in a manner that would allow these wastes to be permanently disposed of
on-site, with that state’s concurrence. Neither the House nor the Senate bill include
environmental exemptions from the Clean Air Act, CERCLA, or RCRA, which DOD
requested. Funding authorizations proposed in each bill for environmental cleanup,
and selected provisions relevant to cleanup, are discussed below.
Cleanup of Current and Former Military Lands. H.R. 4200 would
authorize the Administration’s request of $1.31 billion for the five Defense
Environmental Restoration Accounts that fund the cleanup of past contamination at
active military installations and Formerly Used Defense Sites (FUDS) that are now
being used for civilian purposes. S. 2400 would authorize $1.35 billion for these
accounts. Most of the Senate’s increase would be for the cleanup of FUDS sites.
Both bills would authorize the Administration’s request of $246 million for the Base
Realignment and Closure Account (BRAC). As discussed earlier, DOD has
proposed a total of $322 million for cleanup at base closure sites in FY2005, using
funds from the BRAC account, unobligated funds from prior year appropriations, and
proceeds from the sale and lease of base closure properties.
Regarding the cleanup of base closure sites, the Senate bill would authorize
DOD to reimburse private owners of former military property for cleanup actions
taken after the transfer of the land. CERCLA generally requires DOD to clean up
contamination on base closure sites prior to transfer of the land, and DOD is
retroactively liable for any cleanup actions that are needed after the transfer to
remediate contamination that was not originally addressed.26 The pace at which
DOD performs post-transfer cleanup on former military properties has been an issue
among private owners of these lands, who must wait for the completion of the
cleanup before the property can be used for its intended purpose. The authority
provided in the Senate bill would allow DOD to reimburse private owners who wish
to pay for the cleanup themselves, in order to speed the pace of remediation.
The Senate bill also addresses the cleanup of groundwater contamination, which
is common at many military installations. Groundwater contamination often requires
more time and money to remediate than soil or surface water contamination,
especially if the groundwater must be pumped and treated. The Senate bill would
require GAO to conduct a study of: alternative technologies for the cleanup of
groundwater contamination available to DOD; the potential benefits and limitations
of these technologies, their cost, capabilities, and possible legal restrictions on their
use; and other matters deemed appropriate. GAO would be required to submit the
study to Congress by April 1, 2005, and to include recommendations for
administrative or legislative action.
Related to groundwater contamination, the Senate bill includes a “Sense of the
Senate” provision that addresses the cleanup of perchlorate, a substance commonly
used in munitions propellants. This substance has been found in groundwater at
numerous military installations across the country and has been detected in many
26 42 U.S.C. 9620(h).
CRS-16
public water supplies and private drinking water wells.27 Consequently, there has
been significant public concern about the potential risks of perchlorate to human
health. There currently is not an enforceable federal or state drinking water standard
for this substance that could be applied to cleaning it up. The National Academy of
Sciences (NAS) is studying the health effects of perchlorate to assist EPA in
developing a federal drinking water standard. The state of California is in the process
of developing a standard as well, and is awaiting the results of the NAS study. In the
absence of a generally applicable cleanup standard, EPA has applied state public
health goals to the cleanup of perchlorate at certain sites.28
The Sense of the Senate provision states that DOD should develop a national
plan to remediate perchlorate contamination to ensure that the Department can
respond “quickly and appropriately” once a drinking water standard is established.
It also states that DOD should continue remediation that is underway, develop a plan
for remediation at sites where perchlorate is present in groundwater or surface water
at levels that pose a hazard to human health, and continue evaluating and prioritizing
sites for cleanup without waiting for the development of a federal standard. A
“Sense” of the House or Senate expresses the opinion of that respective chamber on
the matter at hand, and is not legally binding.29 Consequently, if the Sense of the
Senate regarding perchlorate were enacted, DOD would not be required to comply
with the Senate’s direction. Whether DOD could take the above actions would
depend on various factors, including the availability of appropriations.
Cleanup of Former Nuclear Weapons Sites. H.R. 4200 would authorize
$6.91 billion for the two accounts that fund DOE’s cleanup of former nuclear
weapons sites, $40 million less than the Administration’s request. Of the House
amount, $5.93 billion would be allocated to the Defense Site Acceleration
Completion Account, and $986 million would be allocated to the Defense
Environmental Services Account. In its report on the bill, the House Armed Services
Committee indicated that no funding would be authorized for the Administration’s
High-level Waste Proposal to permanently dispose of high-level radioactive wastes
on-site in Washington, Idaho, and South Carolina. Instead, funding would be
authorized only for waste management and cleanup activities in those states that are
“not prevented by the [2003] federal district court ruling or are not otherwise deemed
inappropriate due to the legal uncertainty resulting from the court ruling.”
S. 2400 would authorize $6.95 billion for the cleanup of former nuclear
weapons sites, $41 million more than the House, and slightly more ($1 million) than
requested. Of the Senate amount, $5.97 billion would be allocated to the Defense
Site Acceleration Completion Account, and $982 million would be allocated to the
Defense Environmental Services Account. The bill would provide targeted authority
27 For a list of military installations in the United States where perchlorate contamination
has been found in groundwater, refer to EPA’s website at
[http://www.epa.gov/fedfac/pdf/Releases_04_29_04-with-datesDB.pdf].
28 For a list of examples, refer to EPA’s website at
[http://www.epa.gov/fedfac/documents/perchlorate_site_summaries.htm.]
29 For further discussion of this type of provision, see CRS Report 98-825, Sense of
Resolutions and Provisions, by Paul S. Rundquist.
CRS-17
for classifying some of the high-level radioactive wastes in South Carolina as
incidental to reprocessing, according to criteria approved by the Nuclear Regulatory
Commission. These wastes are currently stored in underground tanks at the
Savannah River site near Aiken, South Carolina. With this authority, DOE would
be permitted to dispose of these wastes by mixing them with a cement “grout” in the
tanks and sealing the wastes in place. This disposal method would be subject to
regulatory approval by the state of South Carolina. S. 2400 would not provide such
authority for Washington and Idaho, which DOE requested.
Both bills would require DOE to arrange for the National Academy of Sciences
(NAS) to study the characteristics of high-level radioactive and other hazardous
wastes stored in tanks in Washington, Idaho, and South Carolina, and the merits of
DOE’s proposal to grout some of these wastes in place. The study also would
include alternatives and recommendations for disposal of the tank wastes. The NAS
would be required to submit a final report to Congress and DOE on the findings and
recommendations of this study within one year of entering this arrangement. H.R.
4200 would authorize $1.5 million out of DOE’s defense environmental management
funds for the NAS to conduct the study, whereas S. 2400 would authorize $750,000.
Appropriations for FY2005
In addition to authorization legislation, the second session has taken action on
the three appropriations bills that fund defense-related environmental activities. The
President has signed the FY2005 appropriations bill for DOD into law. It provides
more funding than in FY2004 for cleanup at active military installations, but
decreases funding for cleanup on former military lands. The House has passed, and
the Senate has reported, the FY2005 appropriations bill for Military Construction,
both of which would provide less funding for the cleanup of base closure sites than
in FY2004. As in the authorization bills, neither the final version of the FY2005
appropriations bill for DOD, nor the Military Construction bills under consideration,
include the exemptions from the Clean Air Act, CERCLA, or RCRA, which DOD
requested. The House also has passed the FY2005 appropriations bill for Energy and
Water Development. It would provide more funding for the cleanup of former
nuclear weapons sites than in FY2004, but would not provide any funding for the
Administration’s proposal to permanently dispose of certain high-level radioactive
wastes in Washington, Idaho, and South Carolina. Further discussion of each bill is
provided below.
Department of Defense. The House and Senate passed the conference
agreement on the Department of Defense Appropriations Act for FY2005 (H.R.
4613, H.Rept. 108-622) on July 22, 2004. The President signed the bill into law
(P.L. 108-287) on August 5, 2004. The law appropriates 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 environmental compliance, conservation, pollution prevention, and
environmental technology. As in past years, DOD will allocate funding for these
activities from funds appropriated by the law to the accounts for Operation and
Maintenance, Procurement, and Research and Development.
CRS-18
As indicated in the table below, the law provides $1.36 billion for the five
Defense Environmental Restoration Accounts that fund the cleanup of past
contamination at active military installations and Formerly Used Defense Sites
(FUDS), more than the House or Senate would authorize. The enacted appropriation
is $50 million more than the Administration’s request, and is $10 million more than
Congress provided for FY2004. The amount above the request would be devoted to
cleanup at FUDS sites. However, funding for cleanup at these sites would be less
than appropriated for FY2004. The law provides the same amount that the
Administration requested for cleanup at active Army, Navy, and Air Force
installations, an increase above the FY2004 appropriation. In addition to these funds,
the law provides $10 million for the mitigation of environmental impacts resulting
from military activities on Indian lands.
Table 1. Defense Environmental Restoration Accounts: FY2004
Enacted, FY2005 Request, and Action on Appropriations
Defense Environmental
FY2004
FY2005
P.L. 108-287
Restoration Account
Enacted
Request
(H.R. 4613)
Army
$396,018,000
$400,948,000
$400,948,000
Navy
$256,153,000
$266,820,000
$266,820,000
Air Force
$384,307,000
$397,368,000
$397,368,000
Defense-wide
$24,081,000
$23,684,000
$23,684,000
Formerly Used Defense Sites
$284,619,000
$216,516,000
$266,516,000
Total
$1,345,178,000
$1,305,336,000
$1,355,336,000
Regarding cleanup at military installations in general, 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 FY2004. Under this type of
contract, funds are awarded for an indefinite number of services for an indefinite
period of time. They are generally more suitable for complex cleanup projects
addressing extensive contamination that may present unforseen needs and require
more time to complete than originally estimated. There have been ongoing concerns
in Congress that the cost and scope of these contracts have become so large that they
are difficult to manage. In recent years, Congress has included provisions in DOD’s
appropriations bill to limit their use.
As the Administration requested, the law does not provide any funding for
payment to the Kaho’olawe Island Conveyance, Remediation, and Environmental
Restoration Trust Fund. The Navy has completed its planned cleanup actions on
Kaho’olawe Island, and transferred access authority back to the State of Hawaii in
November 2003. The Navy ceased its use of the island as a training range in 1995,
and began the cleanup of the former range according to standards for the removal of
munitions specified in a Memorandum of Agreement with the State of Hawaii,
signed in May 1994.30 There has been some disagreement as to whether the Navy has
cleaned up the island according to these standards. Whether additional funding may
30 For the full text of the Memorandum of Agreement, refer to the Navy’s website at
[http://www.hawaii.navy.mil/CNBDATA/Kahoolawe/LegalDocs/MOU.htm].
CRS-19
be necessary for further cleanup of the island is uncertain. (For additional discussion
of the final bill, see CRS Report RL32305, Authorization and Appropriations for
FY2005: Defense, by Stephen Daggett and Amy Belasco.)
Military Construction. The House passed the Military Construction
Appropriations Act for FY2004 (H.R. 4837, H.Rept. 108-607) on July 22, 2004. The
Senate Appropriations Committee reported its version of the bill (S. 2674, S.Rept.
108-309) on July 15, 2004. On September 15, 2004, in preparation for floor
consideration, the Senate struck the entire text of H.R. 4837 and inserted as a
substitute amendment the full text of S. 2674, as reported. Thus, the Senate will base
its floor consideration of H.R. 4837 on the text of its substitute amendment.
Although there are significant differences between the two versions of H.R. 4837,
both the House and Senate would provide $246 million for the Base Realignment and
Closure (BRAC) Account to fund environmental cleanup. This amount is the same
as the Administration requested, and as would be authorized by the House and
Senate. It is $124 million less than the FY2004 appropriation.
Table 2. Base Realignment and Closure Account: FY2004
Enacted, FY2005 Request, and Action on Appropriations
FY2004
FY2005
H.R. 4837
S. 2674
Enacted
Request
as Passed
as Reported
$370,427,000
$246,116,000
$246,116,000
$246,116,000
In addition to funding cleanup at base closure sites, both the House and Senate
versions of H.R. 4837 would provide greater flexibility for the payment of
environmental cleanup costs associated with the upkeep of certain types of military
housing. A similar provision was included in the final versions of the FY2003 and
FY2004 appropriations bills. This provision would limit the cost of maintaining and
repairing general and flag officer quarters, unless Congress is notified 30 days in
advance that costs will exceed a certain amount ($20,000 in the House version and
$35,000 in the Senate version). However, if the costs above these amounts are solely
for environmental cleanup activities that could not be reasonably anticipated at the
time of the budget submission, both bills would authorize DOD to notify Congress
of the higher 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 address threats to human health and the environment. (For additional
discussion of these bills, see CRS Report RL32310, Appropriations for FY2005:
Military Construction, by Daniel H. Else.)
Energy and Water Development. The House passed the Energy and Water
Development Appropriations Act for FY2005 (H.R. 4614, H.Rept. 108-554) on June
25, 2004. As indicated in the table below, H.R. 4614 would provide $6.89 billion for
the two accounts that support DOE’s cleanup of former nuclear weapons sites. Of
this amount, $5.93 billion would be allocated to the Defense Site Acceleration
Completion Account, and $958 million would be allocated to the Defense
Environmental Services Account. The total amount for these two accounts is $286
CRS-20
million more than the FY2004 appropriation, and is $65 million less than the
Administration’s request.
Table 3. Defense Environmental Management Accounts:
FY2004 Enacted, FY2005 Request, and Action on Appropriations
Defense Environmental
FY2004
FY2005
H.R. 4614
Management Account
Enacted
Request
as Passed
Defense Site Acceleration
$5,617,719,000
$5,970,837,000
$5,930,837,000
Completion
Defense Environmental
$985,296,000
$982,470,000
$957,976,000
Services
Total
$6,603,015,000
$6,953,307,000
$6,888,813,000
H.R. 4614 would not provide the $350 million that the Administration requested
for its High-level Waste Proposal to permanently dispose of high-level radioactive
wastes on-site in Washington, Idaho, and South Carolina. Instead, the bill would
appropriate $274 million for tank waste management and cleanup activities in these
states at the Hanford and Savannah River sites and the Idaho National Engineering
and Environmental Laboratory, which are not “precluded” by the 2003 district court
ruling. In its report on the bill, the House Appropriations Committee specified that
it “supports resolution of this issue through the judicial appeals process or through
comprehensive legislation that would address the problem in a consistent manner
nationwide,” rather than only in selected states (as the Senate has proposed for South
Carolina in S. 2400).
In addition to the issue of how to dispose of high-level radioactive waste, the
House Appropriations Committee expressed concern about the feasibility of DOE’s
overall plans to accelerate cleanup and lower costs at the 114 sites across the country
that make up the former defense nuclear weapons complex. The committee noted
recent delays in cleanup schedules and cost overruns of certain projects, as an
indicator that these plans could be ineffective. The committee also raised concerns
regarding DOE’s delay in submitting a report to Congress on statutory changes that
may be necessary to allow accelerated cleanup to proceed, and the need for
agreements with the states on all elements of the Performance Management Plans for
each site. These plans outline how accelerated cleanup would be accomplished.
H.R. 4614 would also appropriate $64 million for DOE’s Office of Legacy
Management. The Administration had requested $66 million, the same as the
FY2004 appropriation. Of the House amount for Legacy Management, $33 million
would be allocated to defense sites, and the remaining $31 million to non-defense
sites. Congress provided the funding for DOE to establish this office in the Energy
and Water Development Appropriations Act for FY2004 (P.L. 108-137). The
primary function of the office is to assess long-term stewardship needs once cleanup
is complete, to ensure that DOE’s planned cleanup remedies continue to be effective
in the future. These planning assumptions are currently based on a time frame of 150
years. DOE previously administered these responsibilities under multiple elements
of its Environmental Management program.
CRS-21
In addition to funding for DOE, H.R. 4614 would provide $190 million for the
Formerly Utilized Sites Remedial Action Program (FUSRAP), administered by the
Army Corps of Engineers as part of its civil works budget. As discussed earlier, the
FUSRAP program addresses radioactive contamination at sites where uranium and
thorium ores were stored and processed during the early years of the U.S. nuclear
weapons program. The House amount for this program is $51 million more than the
FY2004 appropriation, and $50 million more than the Administration requested. In
its report on the bill, the House Appropriations Committee indicated that the increase
in funding would be for expediting the completion of ongoing cleanup projects and
funding new projects. (For additional discussion of this bill, see CRS Report
RL32307, Appropriations for FY2005: Energy and Water Development, coordinated
by Carl Behrens.)