# American Rivers \* Center for Biological Diversity

# Center for Public Environmental Oversight \* Defenders of Wildlife 

# Earth Island Institute \* Earthjustice \* Endangered Species Coalition

# The Humane Society of the United States\* Military Toxics Project \* National Audubon Society

# National Environmental Trust \* National Wildlife Federation \* 

# Natural Resources Defense Council \* Oceana

# Public Employees for Environmental Responsibility\* Seaflow

# Sierra Club\* US PIRG\* World Wildlife Fund

# 

# 

# [Oppose the Department of Defense Readiness]{.underline} 

# [and Range Preservation Initiative]{.underline}

#  *Reduces Protections for Public Health and our Natural Heritage*

This year, Congress is being asked again to consider a proposal from the
Pentagon that would provide the Department of Defense with sweeping new
exemptions from the laws that protect our clean water, clean air and
wildlife. While we understand the importance of our military's efforts
to protect national security, additional exemptions being proposed in
*The Readiness and Range Preservation Initiative* are not necessary to
accomplish this goal and will only threaten our nation's public health
and natural heritage.

No government agency should be above the law -- especially the laws that
protect the air and water in and around our military facilities and the
health of the people who live nearby. Exempting military operations from
fundamental public health and environmental laws will make the people
who live near these exempted military operations and the states that
host them second class citizens, stripping them of protections provided
at private sector facilities, and shifting the burden of habitat
protection entirely to other federal agencies and the private sector.

The statutes now under fire already provide the flexibility needed to
balance environmental protection and military readiness by allowing
exemptions on a case-by-case basis in the interest of national security.
According to a briefing presented to the Deputy Secretary of Defense by
the Department's "Senior Readiness Oversight Council" last December:

> *national security clauses exist in many of this Nation's
> environmental statutes that would allow senior officials...to exclude
> DoD from certain provisions...under certain conditions. To date DoD
> has not used such exemptions to any extent to address encroachment
> concerns...* [^1]

There is no evidence that the military has ever been refused an
exemption from these laws when it has been sought, and abundant evidence
that cooperative local efforts have produced effective solutions. The
military has, time and time again, found reasonable solutions to pursue
necessary training in compliance with environmental laws.

Independent and administration sources agree that protecting the
environment has not compromised readiness. The General Accounting Office
(GAO) said the DoD has failed to produce quantitative evidence that
environmental laws or other "encroachments" have significantly affected
military readiness.[^2] And Christine Whitman, head of the U.S.
Environmental Protection Agency, recently testified before the Senate
that she has "been working very closely with the Department of Defense
and I don't believe that there is a training mission anywhere in the
county that is being held up or not taking place because of
environmental protection regulation."[^3] The National Park Service also
recently warned that the changes being sought "would cause substantial
degradation of natural resources."[^4]

DoD's proposal ignores concerns expressed by states and local
communities directly affected by base operations. The Pentagon's
proposal directly contradicts the principle of the Federal Facilities
Compliance Act -- passed nearly unanimously in 1992 -- by unnecessarily
exempting the DoD from federal laws at the expense of public health,
public lands, air and water, and wildlife. Moreover, if the exemptions
were granted, American taxpayers and state governments would bear the
burden of cleanup costs and face public health risks from toxic
contamination resulting from military operations. Last year, the
Attorney General of Colorado wrote:

...we are concerned that providing the Department of Defense statutory
exemptions from environmental laws will have adverse impacts on human
health and the environment...substantially increased cost to "remedy"
environmental contamination, and greater constraints on the use of
training ranges...The Department...cannot afford to repeat the
experience at the Massachusetts Military Reservation ... There, decades
of military training activities have contaminated over 60 billion
gallons of groundwater in the sole source aquifer for Cape Cod. [^5]

Under this proposal, the Defense Department will be exempted from laws
that have long been supported by the American people, including laws
that preserve the air and water around our military facilities, protect
the health of people who live on or near military bases, and sustain
America's wildlife \-- the Resource Conservation and Recovery Act,
Superfund (CERCLA), the Clean Air Act, the Endangered Species Act, and
the Marine Mammal Protection Act. Last year, with the exception of the
Migratory Bird Treaty Act, Congress rejected these exemptions and we are
requesting that they do the same this year.

*What follows is a brief overview of the laws at risk from the
Pentagon's proposal.*

[Resource Conservation and Recovery Act: Exempting the military from
hazardous waste regulation]{.underline}

The Defense Department's proposal seeks to exempt explosives and
munitions at "operational" military ranges (a vague term which includes
dozens of ranges that have been inactive for years or decades), and the
toxic contamination they cause, from regulation under the Resource
Conservation and Recovery Act (RCRA). RCRA is the nation's premier law
for regulating "hazardous wastes" and is meant to prevent toxic
pollution and ensure that the parties responsible for hazardous wastes
pay to clean them up. Military munitions contain heavy metals and other
toxic substances that escape into the air, soil, and water when the
munitions are fired and if they do not explode or only partially
explode, and when munitions and their components are produced or
destroyed. This proposal would exempt munitions and their toxic
components from virtually any regulation under RCRA by exempting
"explosives, unexploded ordnance, munitions, munition fragments, or
constituents thereof" on operational military ranges from RCRA's
definition of "solid waste.\" The proposed language would allow the
Defense Department to simply leave munitions releasing toxic substances
lying on or in the ground where they can leach into the environment,
without any independent oversight or regulation. It would also seek to
exempt from RCRA ordnance and toxic munitions contamination at sites
other than training ranges. Army Ammunition Plants and facilities that
have produced, tested, and demilitarized military rockets are some of
the nation's most contaminated public and private sites warranting
inclusion on EPA's Superfund list.

The Defense Department claims that this proposal would simply codify
existing regulatory policy. This is not true. EPA currently has
authority under RCRA to order investigation and cleanup of both
off-range and on-range munitions contamination when there is an imminent
and substantial endangerment to public health. DOD's language -- which
is extremely broad and vague -- would seemingly prevent EPA from
exercising this authority, even in the face of an immediate danger to
public health.

# [Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Exempting the military from cleaning up toxic substances]{.underline}

The Defense Department is already responsible for more Superfund sites
than any other party \-- at least 130. Yet this proposal seeks to exempt
the agency from having to clean up the toxic substances that leach from
military explosives and munitions on "operational ranges" (once again a
vague term which includes dozens of ranges that have been inactive for
years or decades). CERCLA (the Superfund law) is our nation's premier
law for cleaning up the worst toxic waste sites. The language would
allow the military to wait to clean up such sites until after toxic
contamination has increased for years, has spread off-site, and has
driven cleanup costs much higher. How would it do this? CERCLA's clean
up provisions are triggered by a "release" of a toxic substance. The
language exempts from the term "release" any "explosives, munitions,
munitions fragments, or constituents thereof" unless the range is closed
or the toxic substances migrate off the range. CERCLA would only apply
to these substances after the contamination has spread for years or
decades, threatening public health and environmental quality, and adding
years and potentially billions of dollars to any final clean up.

What is most disturbing is that DOD appears to have made a conscious
decision to exclude munitions constituents from oversight not because it
interferes with readiness---there has never been a documented instance
where this has happened---but because of the staggering liability it
will bear for the characterization and remediation of Perchlorate and
other energetic contaminants such as RDX and HMX. The current legal
authority on munitions contamination is the Military Munitions Rule
promulgated by EPA in 1997 as directed by Congress in the Federal
Facilities Compliance Act of 1992. The Munitions Rule determines, among
other things, when munitions become a hazardous waste. However, it does
not cover munitions constituents. DOD, it appears, consciously chose to
include these constituents in the items to be excluded from our nations'
hazardous waste laws despite the real risks they pose to human health.

The Defense Department claims that this proposal would simply codify
existing regulatory policy. This is not true. The RCRA and CERCLA
proposals, when taken together, would force nearly all responses to
munitions contamination to occur under CERCLA. Unless an active military
range is listed on the Superfund National Priorities List (which is
highly unlikely), DOD would itself be leading the response to both on-
and off-range munitions contamination.  Under DOD's proposal, EPA --
and, by extension, states \-- would likely have no independent authority
under either RCRA or CERCLA to issue binding orders or go to court to
address either off-range or on-range contamination, even in the case of
an imminent and substantial endangerment to human health. EPA and states
could be cut off from any effective oversight of contamination caused by
military munitions.

 

# Up to 25 million acres of land and untold acres of water at several thousand sites in the U.S. -- including sites near populated areas - are currently contaminated nationwide with toxic munitions constituents and unexploded ordnance. At the Massachusetts Military Reservation on Cape Cod, on-site contamination impacted local wells and a sole source aquifer supplying drinking water for half a million people. Two separate communities adjacent to Aberdeen Proving Grounds, MD now know that their drinking water is contaminated from Perchlorate that is flowing off base. In many cases, it is unclear whether DOD's proposal would allow contamination that has migrated off site to be addressed at its source.

*For more information on RCRA/CERCLA contact: Aimee Houghton, Center for
Environmental Oversight, (202) 452 8039; Steve Taylor, Military Toxics
Project, (207) 783-5091; Geoff Fettus, Natural Resources Defense
Council, (202) 289-6868* *Julie Wok, USPIRG,(202)546-9707*

# [Clean Air Act: Permitting the military to pollute our air]{.underline}

The Readiness and Range Preservation Initiative's (RRPI) proposed
revisions to the Clean Air Act seek to exempt the Department of Defense
from having to comply with our national public health air quality
standards, called national ambient air quality standards or NAAQS. This
means that those living in areas near military bases could breathe
dirtier air, which could result in more premature deaths, asthma
attacks, cardiopulmonary problems, and other adverse health and
environmental effects. The sweeping exemptions within this proposal are
unnecessary as the Clean Air Act has ample provisions to reconcile clean
air requirements with national security and military readiness concerns.

The Clean Air Act requires states to analyze their pollution, and then
develop comprehensive plans that delineate how a state will attain the
federal air quality standards and how it will verify such attainment.
The federal government is required to do its share, ensuring that its
activities do not impair air quality. This means that DOD activities
cannot cause or contribute to a violation of any NAAQS, increase the
frequency or severity of NAAQS violations, or delay attainment of a
standard. To ensure this, certain proposed federal activities trigger an
analysis of emissions to determine the activity's impact on air quality.

Because RRPI defines military readiness so broadly, it attempts to
permanently exempt DOD from conforming to federal or state
implementation plans for attaining the NAAQS for a broad range of
activities. RRPI attempts to give DOD a three-year extension on its
conformity analysis and allow the federal government to proceed with its
activities while analyzing those same activity's effects on air quality.
Although the RRPI contains language requiring DOD to cooperate with a
state to ensure conformity within three years of the date of new
activities, it subsequently attempts to remove all the hammers for
ensuring that they do so and to preempt a state from taking action to
require reductions from the DOD. Thus, an area that violates the NAAQS
because of these military activities could no longer have to take steps
to meet them or take additional steps to reduce air pollution.

Moreover, RRPI actually *defines* dirty air to be clean air, even though
air quality in reality is dirty and unhealthy. Section 2018 does this by
allowing EPA to approve areas as if they had attained the Clean Air
Act's health-based standards, *even though areas have not attained these
health standards*, if the reason for the nonattainment is military air
pollution. This is without precedent in the Clean Air Act and a direct
attack on the protectiveness and truthfulness of what it means to attain
the Clean Air Act's health-based air quality standards. This has led the
bi-partisan association of state and local air pollution control
officials to oppose DOD exemptions from the Clean Air Act, and to write
Congress noting that "the significant adverse air quality impacts that
could result from such exemptions could unnecessarily place the health
of our nation's citizens at risk."

Relieving DOD from its obligation to control its own air pollution,
however, will only shift that burden to private industry, small
businesses and the public. Responsible state and local officials will
not allow unhealthy air caused by military pollution to remain
unaddressed, and they will turn to local businesses and members of the
public (through measures aimed at cars and trucks) to make up the
emissions reductions to which the military should have contributed. Nor
should the public be fooled into thinking that air quality is healthy in
areas where military air pollution causes it to be unhealthy but the
RRPI allows it to be falsely defined as healthy. Allowing the military
to do less than its fair share to clean up our air will force burdens
upon industry and small businesses and the public and, worse, it will
encroach upon the public's right to breathe clean and healthy air.

The Defense Department claims that there is insufficient flexibility in
current law to accommodate its needs, but the Clean Air Act provides
ample mechanisms for exempting agency activities from conformity
requirements where there truly is a military or national security need.

*For information on Clean Air contact: John Walke, Natural Resources
Defense Council, (202) 289-2406; Nat Mund, Sierra Club, (202) 547-1141.*

**[Endangered Species Act: Eliminating Protections for Endangered
Species]{.underline}**

DOD's proposal would eliminate the designation of critical habitat on
all lands "owned or controlled" by the military -- where some of the
best habitat remains for more than 300 species on the brink of
extinction. Specifically, the proposal would prevent the U.S. Fish and
Wildlife Service or National Marine Fisheries Service (Services) from
designating critical habitat on any lands owned or controlled by DOD if
an Integrated Natural Resources Management Plan (INRMP) has been
developed pursuant to the Sikes Act that "addresses special management
consideration or protection." This would do nothing to ensure that
training activities are designed in a manner that avoids unnecessary
destruction of essential habitats. To safeguard this nation's natural
heritage -- especially the hundreds of imperiled species residing on the
25 million acres of military lands -- the DOD must continue to uphold
its ESA responsibilities.

DOD has a long history of successful compliance with the ESA on its
numerous installations. Although species conservation challenges have
arisen in a handful of locations, local DOD and federal wildlife
officials have consistently met those challenges and developed
strategies for achieving training objectives while complying with the
ESA. DOD has rightly taken pride in its species conservation efforts,
many of which were spurred on by the ESA.

DOD can request that the Services exercise their authority under section
4(b)(2) of the ESA to exclude specific parcels from critical habitat
designations altogether where such designations would conflict with
training needs. When such exclusions have been requested, they have been
freely given -- even when the result was to remove from protection lands
that had been deemed "essential to conservation." For example, of Camp
Pendleton's 150,000 acres, less than 5% are designated as critical
habitat for any species. After considering portions of Camp Pendleton as
critical habitat for the gnatcatcher, the FWS exercised its discretion
under current law and [excluded all]{.underline} of Camp Pendleton and
Marine Corps Air Base Miramar from the gnatcatcher's critical habitat
designation. Providing DOD with a blanket legislative exemption, which
would apply in the many places where no unavoidable conflict between
wildlife conservation and national security exists, is unjustified.

For parcels of DOD land that are part of a critical habitat designation,
and not excluded in the section 4(b)(2) process, section 7(a)(2) of the
ESA provides an opportunity for DOD to work with Service officials to
develop a "win-win" solution that allows training exercises to go
forward while avoiding unnecessary damage to endangered species and
habitats. In the unlikely event that DOD and Service officials are
unable to develop such a "win-win" solution, section 7(j) of the ESA
allows the Secretary of Defense to unilaterally exempt DOD from the law
simply by finding that the action must be carried out for reasons of
national security. To this date, no exemption has ever been sought.

*For information on Endangered Species contact: Daniel Patterson, Center
for Biological Diversity, (520) 623-5252;Mary Beth Beetham, Defenders of
Wildlife, (202) 682-9400; Susan Holmes, Earthjustice, (202) 667-4500;
Beth Lowell, Endangered Species Coalition, (202) 772-3230; Bart Semcer,
Sierra Club (202) 547-1141; John Kostyack, National Wildlife Federation*
(202) 797-6879, *Shannon Ryan, USPIRG (202) 546-9707 Robert Irvin, World
Wildlife Federation (202) 861-8382.*

**[Marine Mammal Protection Act: Allowing the military to harm marine
mammals without review]{.underline}**

## 

The heart of the Marine Mammal Protection Act (MMPA) -- our nation's
leading instrument for the conservation of whales, dolphins, sea otters,
manatees, and other marine mammals -- is its general moratorium on the
"taking" of these species. Under the moratorium, wildlife agencies are
required to review government activities that have the potential to
harass or kill these animals in the wild.

The Pentagon's proposal would exempt the military from the MMPA in three
significant ways. First, it would introduce a major loophole into the
statutory definition of "harassment," allowing a range of Pentagon
activities that potentially harm marine mammals by causing physical
injury or impairing their ability to breed, nurse, feed, or migrate, to
escape review. Secondly, it would eliminate the requirement that takes
be limited to "small numbers" of animals in a "specified geographic
region," opening the door to activities that could take hundreds of
thousands of marine mammals across the world's oceans. And, finally, it
would create broad exemptions that seek to allow the Pentagon to bypass
the review process entirely. Unlike military exemptions written into
other statutes, the ones proposed for the MMPA are not triggered by war
or national emergency and are not conditioned on completion of an
initial stage of environmental review, but can be applied to virtually
any military activity or technology at any time.

The likely result of these dramatic changes would be far less protection
for marine mammals, less mitigation and monitoring of impacts, less
transparency, and even more public controversy and debate. The DoD has
not made the case that any such steps are warranted. Under the MMPA, the
Pentagon may receive authorization to "harass" marine mammals through a
streamlined process that, by law, can take no longer than 120 days.
Furthermore, under the Armed Forces Code, it can obtain special
accommodations to meet the needs of military readiness and can appeal
adverse decisions to the President. This last provision has never been
invoked with regard to the MMPA, presumably because -- as the director
of the National Marine Fisheries Service testified last year -- not one
of the Pentagon's requests for authorization under the Act has ever been
denied.

One example of the importance of the MMPA's review provisions is the use
of Navy sonar, which over the past decade has been shown to have serious
impacts on marine mammals, ranging from death to internal hemorrhaging
to disruptions in breeding. In December 2001, the Navy admitted that its
use of intense sonar in a training exercise caused a mass stranding of
whales in the Bahamas.

*For information on the Marine Mammal Protection Act Contact: Mark
Palmer, Earth Island Institute (415) 788-3666; Michael Jasny, NRDC (202)
289-6869; Ted Morton, Oceana, (202) 833-3900.*

[^1]: **NOTES**

    ^?^ From "Memorandum for Secretaries of the Military Departments,
    Chairman of the Joint Chiefs of Staff, Under Secretaries of Defense,
    Service Chiefs. Subject: Senior Readiness Oversight Council Approval
    of 2003 Sustainable Ranges Action Agenda" at p. 9 (December 10,
    2002).

[^2]: [See]{.underline} GAO, *Military Training: DOD Lacks a
    Comprehensive Plan To Manage Encroachment on Training Ranges*,
    GAO-02-614 (June 2, 2002). The GAO report further points out that
    each major branch of the armed forces -- Army, Navy, Air Force,
    Marines -- conducts training exercises separately and without
    collaboration, thereby unnecessarily duplicating costs and
    environmental impacts. In the case of Camp Pendleton in California,
    habitat conflicts could be minimized if the Marines would conduct
    their desert training at nearby Edwards Air Force Base.

[^3]: *See* Whitman's testimony regarding DOD exemptions from
    environmental laws, U.S. Senate Environment & Public Works Committee
    Hearing, February 26, 2003.

[^4]: Suzanne Stuglinski, "DOD environmental exemption requests headed
    for review," Environment & Energy Daily, March 10, 2003.

[^5]: *See* letter from Ken Salazar, Attorney General of Colorado to
    Representative Joel Hefley, April 1, 2002