**Environmental Law**

**for Overseas Installations**

LIEUTENANT COLONEL RICHARD A. PHELPS, USAF /\*/

**1. INTRODUCTION**

Although the concepts are similar, the \"environmental law\" which
applies to Department of Defense (DoD) installations and facilities
overseas is quite different than the well developed and clearly
structured regulatory system which governs our operations in the U. S.
In the context of environmental requirements which apply to DoD
operations in foreign countries, the tongue-twisting acronyms you\'ve
struggled to memorize are replaced by a whole new set.

Environmental requirements for our overseas installations reflect the
peculiar balance of sovereignty inherent in the basing of foreign forces
within a host nation. These requirements represent a unique synthesis of
executive orders, U.S. domestic and host‑nation environmental standards,
DoD policy, and international agreements. Our obligations are often
self‑imposed as a matter of policy rather than as a matter of law.
However, far from being inconsequential, noncompliance is potentially
damaging to our relations with the host‑nation. Noncompliance may
subject our employees to local criminal sanctions, and in extreme cases
could even affect our continued access to the installation. Indeed, the
principle of \"environmental security,\"\' as it is applied overseas,
espouses sound environmental stewardship as a means to ensure our
continued access to installations and facilities vital to U.S. national
security.

**II THE ORIGIN OF THE SPECIES**

Environmental requirements for DoD installations and facilities overseas
reflect U.S. domestic law, Presidential Executive Orders, General
Accounting Office audits, DoD policy, and international agreements.
These divergent sources have shaped and influenced the development of
\"overseas environmental law. /2/

**A. Applicability of U.S. Law**

Two categories of U.S. environmental law apply to the operation of DoD
installations and facilities overseas. The first category involves laws
where application to DoD activities overseas is coincidental to their
general application to DoD activities. For example, the asbestos
abatement requirements reflected in the, Asbestos School Hazard
Abatement Act of 1984 /3/ apply to \"any school of any agency of the
United States," /4/ including DoD Dependent Schools overseas. Another
example is found in the Lead‑Based Paint Poisoning Prevention Act of
1971, /5/ which applies to residential dwellings constructed or
rehabilitated by the DoD worldwide.

The second category involves laws where the issue of general
extraterritorial applicability has been the subject of judicial
scrutiny. Generally, the legislation of Congress is presumed to \"apply
only within the territorial jurisdiction of the United States,\" unless
the \"language in the relevant Act gives \[an\] indication of a
congressional purpose to extend its coverage beyond places over which
the United States has sovereignty or has some measure of legislative
control. /6/ Such clear expressions are exceptional, however, and two
major environmental statutes have been the subject of litigation in
which the question of their extraterritorial application was a central
issue ‑ the National Environmental Policy Act (NEPA) /7/ and the
Endangered Species Act (ESA). /8/

The litigation concerning NEPA arose in Antarctica. The National Science
Foundation (NSF) operated the McMurdo Station research facility in
Antarctica. Food wastes generated at the facility were burned in an open
landfill. The NSF decided to improve its environmental practices in
Antarctica, and in early 1991, halted the burning of food waste. The
wastes were subsequently stored from February to July 1991, when a delay
in the planned delivery of a state‑of‑the‑art incinerator to McMurdo
Station compelled the NSF to resume burning in an \"interim
incinerator.\" /9/

The Environmental Defense Fund brought an action seeking injunctive
relief, alleging that the NSF violated NEPA by failing to prepare an
environmental impact statement before going forward with its plans to
incinerate food wastes. The district court in *Environmental Defense
Fund, Inc. v. Massey /10/* dismissed for lack of subject matter
jurisdiction, finding that the statute did not contain the requisite
\"clear expression of legislative intent through a plain statement of
extraterritorial statutory effect.\" /11/ However, in a case of first
impression, /12/ a three‑member panel of the D.C. Circuit Court of
Appeals concluded otherwise. /13/

Based in large measure on the uniqueness of Antarctica as a continent

without a sovereign and the area\'s consequent treatment as a \"global

common, \" /14/ the circuit court found that since NEPA controls
government

decision making and imposes no substantive requirements which could be

interpreted to govern conduct abroad,/15/ and since the federal decision
making process which resulted in the use of an \"interim incinerator\"
at McMurdo Station took place almost exclusively within that country,
/16/ the presumption against extraterritoriality did not apply. /17/
Nevertheless, the court was careful to note that its decision did not
extend to the possible application of NEPA \"to actions in a case
involving an actual. foreign sovereign or how other U.S. statutes might
apply to Antarctica. /18/ Indeed, the court made a point of limiting the
application of its decision to the facts of the case before it. /19/ The
administration sought neither rehearing nor appeal of the court\'s
decision, implicitly accepting the applicability of NEPA to federal
activities in Antarctica. /20/

The extraterritorial application of the Endangered Species Act (ESA) has
also been litigated. The ESA requires the Secretaries of the Interior
and Commerce Departments to consult to ensure that any action is not
likely to jeopardize the continued existence or habitat of any
endangered or threatened

species. In 1979, the Secretaries promulgated a joint regulation
limiting this requirement to actions taken \"in the United States or
upon the high seas. /21/ Several organizations challenged the
regulation, asserting that the ESA applied extraterritorially, and in
the 1990 case of *Defenders of Wildlife, Friends of Animals v. Lujan,
/*22/ the Eighth Circuit Court of Appeals agreed. The three member panel
ruled \"that Congress intended the consultation obligation \[of the
ESA\] to extend to all \[federal\] agency actions affecting endangered
species, whether within the United States or abroad." /23/ A 1992
plurality opinion /24/ of the U.S. Supreme Court in *Lujan v. Defenders
of Wildlife /25/* reversed that decision, but based on lack of standing,
not a finding that the ESA does not apply extraterritorially. /26/ As a
consequence, the issue of extraterritorial application of the ESA
remains something of an open question. Nevertheless, current Interior
Department regulations continue to limit the consultation requirement to
federal actions \"within the United States or on the high, seas. /27/

**B. Executive Orders**

Presidential interest in environmental protection at federal facilities
in the U.S. has been reflected in executive orders (E.O.) dating back to
1948. /28/ However, not until E.O. 12088, signed on 13 October 1978 by
President Jimmy Carter, was a similar level of presidential interest
shown regarding protection of the environment at federal facilities
outside the U.S. /29/ The primary purpose of the order was to subject
the pollution control efforts of federal facilities in the U.S. to
oversight by federal, state, and local environmental regulators /30/ in
order \"to ensure Federal compliance.\" /31/ However, in its short
reference to \"facilities outside the United States,\" the order created
the first environmental protection requirements for federal facilities
overseas. It reads as follows:

*The head of each Executive agency* that is responsible for the
construction or operation of Federal facilities outside the United
States *shall ensure* that such construction or operation *complies with
the environmental pollution control standards of general applicability*
in the host country or jurisdiction. /32/

Although the order mandates compliance with host‑nation substantive /33/
\"pollution control standards,\" U.S. federal facilities overseas are
bound only by those standards which are generally applied within a
particular country to its own industry and military. In addition, the
obligation is subject to further implementation (\"shall ensure\") by
\"the head of each Executive agency.\" Implementation by the DoD did not
occur for some time, and consequently the order was not uniformly
reflected in the operations of DoD installations and facilities
overseas.

Seventeen months later, President Carter signed E.O. 12114, /34/ which
requires consideration of environmental impacts in federal decision
making overseas. Although the order did not export the requirements of
NEPA overseas, it \"further\[ed\] the purpose\" /35/ of that Act by
creating NEPA‑like environmental impact analysis requirements applicable
to specific categories of \"major federal actions \... having
significant effects on the environment outside the geographical borders
of the United States, its territories and possessions. /36/ Depending on
the category of impact, /37/ the order requires decisionmakers to
document their consideration of environmental impacts through the use of
environmental impact statements, studies, and reviews./38/ Specific
actions are exempted /39/ and agencies are authorized to establish
additional categorical exclusions. /40/ Like E.O. 12088, this order also
required further implementation by federal agencies, but this time
agencies were given eight months to effect that implementation. /41/
Department of Defense implementation occurred on 31 March 1979 through
DoD Directive 6050.7. /42/

**C. Department of Defense Policy**

Department of Defense implementation of the environmental impact
analysis requirements in E.O. 12114 came only three months after the
executive order was signed. In the context of the need to respect
\"treaty obligations and the sovereignty of other nations,\" /43/ DoD
Directive 6050.7 defines key terms, establishes review procedures, and
describes documentation requirements.

The DoD began to develop a comprehensive compliance policy only after
deficiencies in overseas environmental management were highlighted by a
General Accounting Office (GAO) audit /44/ and development was mandated
by Congress . /45/ The policy was ultimately promulgated in 1991 in DoD
Directive 6050.16. /46/ Although this directive did not specifically
refer to E.O. 12088 /47/ it had the practical effect of implementing the
executive order\'s mandate to comply with the host country\'s
\"pollution control standards of general applicability. /48/ The
directive accomplishes that implementation by first creating a minimum
environmental protection standard applicable to DOD installations and
facilities overseas. /49/ That minimum standard is embodied in an cc
overseas environmental baseline guidance document\" (OEBGD) /50/ which
is based on \"generally accepted environmental standards\" applicable to
DOD facilities in the U.S. /51/ It then designates DoD executive agents
(EA) for nations with a significant DOD presence and directs them to
prepare \"final governing standards\" (FGS) /52/ based essentially on a
comparison of the OEBGD and host nation environmental standards of
general applicability to determine which is more protective of the
environment.\" On \"final development and distribution,\" the FGS
becomes the applicable environmental protection standards for DoD
installations. The standards reflected in the OEBGD and FGS do not,
however, apply to the operations of naval vessels or military aircraft,
/55/ operational deployments, /56/ or cleanup or remedial actions ./57/

In *1990,* Congress also directed the DoD to develop an overseas cleanup
policy. /58/ The cleanup of past contamination at overseas installations
was first addressed in the context of installations and facilities
designated for closure. In a December *1993* policy message /59/ the
Secretary of Defense prohibited the expenditure of any U.S. funds on
cleanup following the decision to return an installation or facility
\"beyond the minimum necessary to sustain current operations or
eliminate known imminent and substantial dangers to \'human health and
safety.\" /60/ The policy deals with environmental contamination within
the context of subsequent residual value negotiations. It limits DoD
funding of cleanups to those circumstances which impact on operations or
which rise to the level of \"imminent and substantial danger\" to human
health. /61/

The publication of a comprehensive DoD policy for overseas \'cleanup
took nearly two more years. The *Environmental Remediation Policy for
DoD Activities Overseas, /62/* signed on 18 October *1995,* superseded
the *1993* message from the Secretary of Defense. The new policy applies
\"to remediation of environmental contamination on DoD installations or
facilities overseas (including DoD activities on host nation
installations or facilities) or caused by DoD operations \... that occur
within the territory of a nation other than the U.S\" /63/ However, the
policy does not apply to remediation actions required by the FGS or
OEBGD, nor to \"operations connected with actual or threatened
hostilities, peacekeeping missions or relief operations. /64/

Like its precursor, the *1995* policy is human health risk based and
requires commanders to act promptly to remediate \"known imminent and
substantial endangerments to human health and safety\" caused by DoD
operations, whether on or off the installation. But unlike its
precursor, the *1995* policy provides local commanders wide discretion
in determining whether to fund remediation.

Commanders may, in consultation with the EA, conduct cleanups \"required
to maintain operations,\" \"to protect human health and safety,\" /65/
or required by international agreement. /66/

**D. International Agreements**

The conduct of DoD activities in other countries is generally governed
by one or more previously concluded agreements between the U.S. and the
host nation. By their nature, these documents provide for specific
waivers of the privileges and immunities enjoyed by one sovereign
vis‑a‑vis the other as the nations agree to a course of conduct they
would otherwise have no duty under international law to do.

An agreement affecting DoD activities may be broad in scope, such as a
status of forces agreement (SOFA), or a narrowly drafted basing
agreement. Whatever the form, the agreement defines the rights and
responsibilities of both nations with regard to the presence of DoD
personnel in that country and may reflect agreement by the U.S. to
comply with host‑nation environmental protection requirements.

Although such agreements have not typically included specific provisions
regarding environmental protection or remediation, other obligations are
often sufficiently broad enough to encompass some environmental issues.
Status of Forces Agreements may include claims and residual value
provisions which apply to environmental contamination and, less often,
may define our responsibility with regard to host‑nation laws. In Japan
/67/ and the Republic of Korea /68/ the host‑nation has relieved the
U.S. of any obligation to restore facilities and areas to their previous
condition in exchange for a U.S. waiver of any obligation by the
host‑nation to pay residual value. The Federal Republic of Germany
(Germany) has waived any claims for damage to property it owns and makes
available to U.S. Forces as long as the damage is not caused willfully
or by gross negligence /69/ and does not arise \"from non‑fulfillment of
the accepted responsibility for repair and maintenance." /70/

The NATO SOFA /71/ obligates U.S. Forces to \"respect the law of the
receiving State.\" /72/ The obligation to \"respect\" the law of the
host‑nation is not defined in the agreement, but in practice has been
interpreted by the sending States (including the U.S.) to require that
they avoid actions which would derogate host‑nation law ‑ not that the
sending States have made themselves subject to, or have agreed to
specifically comply with, the laws of the host nation. /73/

The 1993 supplementary agreement (SA) with Germany\' goes much further.
When effective, the SA will require sending State forces to apply German
law to their use of an installation or facility (otherwise referred to
as an accommodation), except in \"internal matters which have no
foreseeable effect on the rights of third parties or on adjoining
communities or the general public.\" /76/ This general obligation is
specifically manifested in several SA requirements: to cooperate with
German authorities as they seek permits on our behalf for regulated
activities

on the accommodation; /77/ for the use of low pollutant fuels and
compliance with emissions limitations; /78/ and in the transportation of
hazardous material . /79/ The SA also obligates the force to \"bear the
costs\" of assessing, evaluating, and remediating environmental
contamination which it caused. /80/ That obligation could be fulfilled
through SOFA claims provisions, residual value off‑sets, or directly,
subject to \"the availability of funds and the fiscal procedures of the
Government of the sending State." /81/

**II. ENVIRONMENTAL IMPACT ANALYSIS**

**A. Executive Order 12114**

Just before leaving office, President Jimmy Carter signed E.O. 12114,
/82/ which directs the consideration of environmental impacts in federal
decision-making overseas. Although the order does not export the
requirements of NEPA, it \"further\[s\] the purpose /83/ of that Act by
creating NEPA‑like environmental impact analysis requirements. In
addition, it requires \"responsible officials of Federal agencies . . .
to be informed of pertinent environmental considerations and to take
such considerations into account\" in authorizing and approving \"major
Federal actions having significant effects on the environment outside
the geographical borders of the United States.\" /84/

The order encompasses actions which affect the global commons,
ecological resources of global importance, /85/ the environment of a
non‑participating foreign nation or actions which result in a toxic (by
U.S. standards) or radioactive emission or effluent to a foreign nation.
/86/ An environmental impact analysis is not required, however, when the
foreign nation is \"participating\" or \"otherwise involved. /87/
Depending on the category of impact, /88/ the order requires
decision‑makers to document their consideration of environmental impacts
through the use of environmental impact statements, environmental
studies, and environmental reviews. /89/ Specific actions are exempted,
/90/ and agencies are authorized to establish additional categorical
exclusions. /91/

**B. DoD Directive 6050.7**

The **DOD** implemented E.O. 12114 through DOD Directive 6050.7. /92/ In
addition to providing key definitions, /93/ the directive also sets
forth documentation requirements for environmental impact statements,
environmental studies, or environmental reviews. By definition, the
environmental impact analysis requirements of the directive are limited
to a federal action /94/ \"of considerable importance involving
substantial expenditures of time, money, and resources, that affects the
environment on a large geographic scale.\" /95/ The deployment of ships,
aircraft, or other mobile military equipment is specifically excepted
from the application of the directive. /96/ The directive also provides
exemptions for many actions, including:

• Actions that a DOD component determines do not do significant harm to
the environment outside the U.S. or to a designated resource of global
importance.

• Actions taken by the President. /97/

• Actions taken by or pursuant to the direction of the President or a
cabinet officer in the course of armed conflict. /98/

• Actions taken by or pursuant to the direction of the President or a
cabinet officer when national security or a national interest is
involved. /99/

• The activities of the intelligence components utilized by the
Secretary of Defense under E.O. 12036, 43 Fed. Reg. 3674 (1978). /100/

• The decisions and actions of the Office of the Assistant Secretary of
Defense (International Security Affairs), the Defense Security
Assistance Agency, and the other responsible offices within DoD
components with respect to arms transfers to foreign nations. /101/

• Votes and other actions in international conferences and
organizations. /102/

• Disaster and emergency relief actions.

• Actions involving export licenses, export permits, or export
approvals, other than those relating to nuclear activities. /103/

• Actions relating to nuclear activities and nuclear material, except
actions providing to a foreign nation a nuclear production or
utilization facility, as defined in the Atomic Energy Act of 1954, as
amended, or a nuclear waste management facility.

• Case‑by‑case exemptions, under emergency or other circumstances, and
class exemptions established by the DoD.

• Categorical exclusions established by the DoD. /105/

Major federal actions which significantly harm the environment of the
global commons require the completion of an environmental impact
statement (EIS). /106/ The \"global commons\" are geographical areas
that are outside the jurisdiction of any nation and include the oceans
outside territorial limits and Antarctica, but do not include contiguous
zones and fisheries zones of foreign nations. /107/ Although the term
EIS is the same as that applied under NEPA, the administrative and
procedural requirements under the directive are quite different.

The EIS required under the directive must be \"concise and no longer
than necessary to permit an informed consideration of the environmental
effects of the proposed action on the global commons and the reasonable
alternatives." /108/ The statement must include consideration of the
purpose and need for the proposed action, the environmental consequences
of the proposed action and reasonable alternatives, a succinct
description of the affected environment of the global commons, and a
comparative analysis of the proposed action and reasonable alternatives.
/109/ A draft statement is \"made available to the public, in the United
States, for comment.\" /110/ At least 45 days are allowed for comments.
/111/ Although not required, the directive encourages public hearings
\"in appropriate cases.\" /112/ Substantive comments received from the
public are considered in the preparation of a final statement, which is
also made available to the U.S. public. A final decision cannot be made
concerning the proposed action until the later of either 90 days after
the draft statement has been made available or 30 days after the final
statement has been made available. /113/

Far less rigid documentation is required for other major federal actions
contemplated by the directive, including those which affect ecological
resources of global importance or the environment of a non‑participating
foreign nation or which provide a toxic or radioactive emission or
effluent in a foreign nation. This environmental documentation includes
environmental studies (ES) or environmental reviews (ER).

An ES is an analysis of the likely environmental consequences of a major
federal action. /114/ It is prepared by the DoD in conjunction with one
or more foreign nations or with an international body or organization in
which the U.S. is a member or participant. /115/ Because an ES is a
cooperative undertaking, it may be best suited for use with respect to
proposed federal actions that affect a protected global resource and
actions that provide strictly regulated or prohibited products to a
foreign nation. /116/ The precise content of a study is flexible due to
the sensitivity of obtaining information from foreign governments, the
availability of useful and understandable information, and other
factors. /117/ Nevertheless, a study will always include a general
review of the affected environment, the predicted effect of the proposed
action on the environment, significant environmental protection or
improvement actions taken by governmental entities with respect to the
proposed action, and whether the affected foreign government or
international organization made a decision not to take such,
environmental mitigation measures. /118/ Subject to limitations
regarding confidentiality, foreign relations, and sovereignty, the
completed study is generally made available to the Department of State,
the Council on Environmental Quality, other interested federal agencies,
and, on request, to the U.S. public and interested foreign governments.
/119/

The determination of whether a proposed action would do significant harm
to a protected environment is normally made in consultation with
concerned foreign governments or organizations. /120/ A decision that
the proposed action would not result in significant harm is documented
in a record which identifies the participating decision makers. /121/ If
the decision is to conduct an ES, generally \"no action concerning the
proposal may be taken that would do significant harm to the environment
until the study has been completed and the results considered.\" /122/
However, distribution of the document is not required prior to taking
the action that is the subject of the Study. /123/

An ER is a survey of the important environmental issues involved in a
proposed major federal action. /124/ It may be prepared unilaterally by
the DoD or in conjunction with another federal agency. /125/ Because it
is prepared unilaterally by the U.S., an ER \"may be uniquely suitable
\... to actions that affect the environment of a nation not involved in
the undertaking.\" /126/ The review must include a description of the
proposed action, an identification of the important environmental
issues, aspects of the proposed action which ameliorate or minimize the
impact on the environment, and any actions taken or planned by a
participating foreign government that will affect environmental
considerations. /127/ Subject to limitations regarding confidentiality,
foreign relations, and sovereignty, the completed review is generally
made available to the Department of State, the Council on Environmental
Quality, other interested federal agencies, and, on request, to the U.S.
public and interested foreign governments. /128/

Prior to completion of an ER, information is gathered and reviewed to
determine whether the proposed action would do significant harm to a
protected environment. When a proposed action would not result in
significant harm, that decision and the basis for the decision is
documented. /129/ If the decision is to conduct an ER, then generally
\"no action concerning the proposal may be taken that would do
significant harm to the environment until the review has been
completed.\" /130/ However, distribution of the document is not required
prior to taking the action that is the subject of the review. /131/

**C. Overseas Environmental Baseline Guidance Document/**

**Final Governing Standards**

The environmental. impact analysis requirements of DoD Directive 6050.7
are virtually duplicated in chapter 17 of the OEBGD. Because those
requirements are procedural /132/ and not substantive, chapter 17 is the
only portion of the OEBGD which does not consider host‑nation laws in
the drafting of the FGS. As a result, all FGSs reflect the same
environmental impact analysis requirements.

The FGSs define and generally identify the actions which require an
environmental impact analysis and the appropriate documentation.
However, chapter 17 is not a complete restatement of DoD Directive
6050.7. That directive should be referred to for detailed guidance
regarding overseas environmental impact analysis requirements.

**III. COMPLIANCE**

On 20 November 1991, the DoD effectively implemented the requirement of
E.O. 12088 that the heads of each executive agency comply with host
nation \"environmental pollution control standards of general
applicability\" in the \"construction and operation of federal
facilities\" overseas. /133/ Department of :Defense Directive 6050.16,
*DoD Policy for Establishing and Implementing Environmental Standards at
Overseas Installations,* established implementation \"guidance, and,
standards to ensure environmental protection" /134/ in \"the operations
of the DoD components at installations and facilities /135/ outside the
territory of the United States.\" /136/ The directive mandates the
publication of a baseline guidance document, /137/ provides for the
identification of an environmental executive agent (EA) for \"each
foreign country where DoD operations are conducted at installations or
facilities,\" /138/ and requires EAs to issue FGS for each country.
/139/

**A. Final Governing Standards**

One year later, in October 1992, the OEBGD was published. It contains
nineteen chapters oriented toward compliance. It is not, however, a
compilation of all U.S. laws and regulations in those areas. Rather, it
provides a baseline ‑ a minimum standard of environmental protection to
be observed at DoD installations and facilities overseas. Like the DoD
directive it is based on, the OEBGD does not apply to the operation of
U.S. naval vessels or U.S. military aircraft, operational and training
deployments, facilities or activities covered under the Naval Nuclear
Propulsion Program, or to the determination or conduct of remedial or
cleanup actions to correct environmental problems caused by the DoD\'s
past activities. /140/

Host‑nation standards which are \"adequately defined and generally in
effect or enforced against host‑government and private sector
activities\" /141/ are evaluated by EAs, along with the OEBGD baseline
standards, to determine \"the governing standard for a particular
environmental medium or program. /142/ The standard which is the most
protective of the environment becomes the final governing standard.
/143/

The published FGS are \"the sole compliance standards at \[DoD\]
installations in foreign countires.\" /144/ In countries where no FGS
have been published, the OEBGD provides the compliance standards for the
installation or facility. /145/ The standards apply to the \"operations
of the DoD components at installations or facilities\" overseas, and the
heads of the DoD components are obligated to ensure compliance, /146/
This implies that operations controlled by the, DoD component at its
overseas installations or facilities, but which have been contracted out
(e.g., base maintenance or hazardous waste disposal contracts), are also
subject to the FGS. In addition, at joint‑use (with host-nation or
multi‑national forces) or leased installations or facilities, the
standards apply where the instrumentality to be regulated by the FGS is
controlled, either directly or through contract, by the DoD component.
/147/ Standards which are more protective than those reflected in the
FGS may not be adopted by a component unless concurred in by the EA.
/148/

The EA is the ultimate \"regulatory\" authority for DoD components,
installations, and facilities in the host‑nation. In addition to
responsibility for initial publication of the FSG, the EA must
revalidate it annually, /149/ interpret its provisions as required, and
update as necessary. The need to update the FGS may result from
significant changes in either the OEBGD or host‑nation law. However, the
EA is not obligated to update the FGS every time host‑nation law
changes. The EA also acts on requests for waivers to the FGS. /150/
Waivers to FGS may only be granted if compliance would seriously impair
operations, adversely affect relations with the host nation, or require
substantial expenditure of funds not available for such purpose. /151/

A request for a waiver is made by a DoD component to the EA. If a

standard is derived from the OEBGD, the EA has independent waiver

authority./152/ If a standard is derived from host‑nation law, the EA
must consult

with the responsible host‑nation authority through the appropriate U.S.

diplomatic mission before a waiver may be g ranted./153/ Finally, it is
important to

note that a waiver may not be granted if the standard is derived from a
treaty

obligation. /154/ Since the directive clearly contemplates compliance as
its desired

result, waivers should be rare. A DoD installation or facility should
be: 1) in

compliance with the FGS; 2) out of compliance, but working toward

compliance (including planning, programming, and budgeting for
requirements);

or 3) authorized by a waiver to be out of compliance with the FGS. /155/
Under

emergency circumstances, the unified commander with geographic
responsibility may authorize a waiver if \"essential to the
accomplishment of an

operational mission directed by the National Command Authorities.\"
/156/

The FGS is self‑enforced. Military departments and defense agencies are
required to conduct environmental compliance audits of their overseas
installations and facilities to ensure that compliance with FGS is
achieved and maintained. /157/ The compliance audits can become an
invaluable tool, not only to identify non‑compliant activities, but also
to assist in planning, programming, and budgeting for projects required
to achieve compliance.

**B. Operational Deployments**

The DoD overseas compliance policies reflected in the OEBGD and FGS do
not apply to operational deployments, including peace‑keeping missions,

relief operations, and actual or threatened hostilities, /158/
Nevertheless, such operations are subject to environmental requirements
which originate in executive orders, U.S. law, international agreements,
and policy. These requirements are defined in an operations plan
(OPLAN). For example, the environmental annex to the U.S. European
Command\'s OPLAN /159/ for Operation Joint Endeavor, /160/ synthesized
environmental requirements found in status of forces agreements, DoD
policy directives and manuals, joint staff publications, and E.O. 12114.
/161/

Operation plans must contain an environmental annex /162/, to provide
guidance to protect the health and welfare of U.S. personnel and the
environment during the conduct of operations resulting from
implementation of \[the\] plan.\" /163/ The annex for Operation Joint
Endeavor is comprehensive and balanced. It begins with major assumptions
/164/ and includes environmental protection responsibilities for service
components, the Defense Logistics Agency, and deployed commanders, /165/
as well as a concept of operations . /166/ It also includes specific
operational requirements in the areas of drinking water, /167/
wastewater, /168/ solid waste management, /169/ medical waste
management, /170/ hazardous materials management, /171/ hazardous waste
management, /172/ *Spill* prevention and control, /173/ NBC waste
management, /174/ natural resources, /175/ and historic and cultural
resources. /176/

However, the annex\'s environmental protection requirements are
\"balanced against the requirements of force protection and military
necessity for mission accomplishment.\" /177/ In meeting the
requirements under the annex, the deployed force is required to apply
\"the best practical and feasible environmental engineering and sanitary
practices for the protection of human health and the environment,\"
tempered by the operational constraints \"of existing conditions, force
protection, and mission accomplishment.\" /178/ To ensure uniformity
among the participating components, the annex also identifies an
environmental executive agent, /179/ who will be primarily responsible
for ensuring compliance with the OPLAN\'s requirements and for
developing more detailed guidance and standards if necessary. /180/

**C. Host‑Nation Environmental Law**

Although the active duty members of the U.S. military service, the
civilian employees of these services, and their dependents are subject
to the law of the host‑nation, /181/ the U.S. has generally been very
conservative in ceding any degree of its sovereignty in agreements
regarding the status of its forces in foreign countries. /182/ We
nevertheless comply with host‑nation environmental requirements
incidental to many of our operations.

Pursuant to agreements with some host‑nations, major construction at DoD
installations and facilities overseas is often accomplished pursuant to
\"indirect contracting\" procedures.\" /183/ Under those procedures, a
DoD component will program the project and may prepare a statement of
work and a project design. That information\', with a funding
commitment, is provided to host‑nation officials, who complete the
design and prepare, advertise, and administer the construction contract
in the host nation\'s name. The contract provisions and specifications,
as well as contractor performance, will comply with host‑nation \"legal
provisions and administrative regulations in force. /184/ Consequently,
a new wastewater treatment facility, heating plant, or similar structure
would be designed and constructed with host‑nation environmental
protection requirements in mind.

With construction projects, direct contracting reaches essentially the
same result. A DoD component designs the project and drafts the
specifications and statement of work in accordance with the applicable
FGS. A local bidder must be able to obtain the necessary permits and
comply with host‑nation law, including environmental law. As a result,
DoD component designers must ensure that the project does not require a
potential offeror to violate host‑nation law during the construction of
the facility. Furthermore, designers must ensure that when the DoD
component operates the facility, it can do so in a conforming manner.

Similarly, service contractors are also obligated to comply with
host‑nation environmental law. A contractor who re‑paints buildings must
apply the paint and dispose of waste paint in accordance with both FGS
and local requirements,. and those requirements will be reflected in
both the contractor\'s performance and in the contract price. The
contractor who receives hazardous waste for disposal must transport,
store, and dispose of it in accordance with local requirements. Indeed,
the 1989 Basel Convention /185/ imposes significant restrictions on the
transboundary movement of hazardous waste for disposal. it has
substantially impacted the waste disposal industry; including the
disposal of hazardous waste generated by DoD\'s overseas activities ‑-
both at installations and during operational deployments.

The Basel Convention encourages the disposal of wastes in the nation of
generation in order to improve and achieve environmentally sound
management of hazardous and other wastes. /186/ Party states may, under
limited circumstances, send to or receive hazardous waste for disposal
from other Party states with pre‑notification and approval, but are
prohibited from sending to or receiving hazardous waste from
non‑‑Parties /187/ absent \"bilateral, multilateral, or regional
agreements or arrangements\" which \"do not derogate from the
environmentally sound management of hazardous wastes\" required by the
Convention. /188/ The Convention requires Parties to enact criminal
sanctions and to punish violations of its provisions. /189/

As of January 1996, 97 nations have ratified the convention. /190/ It
has been entered into force by 94 of these nations. Although the U.S.
was one of the original signatories /191/ and, as such, is obligated not
to take any action which would derogate from the convention\'s purposes,
the U.S. has not ratified it. /192/ As a result, the U.S. is not a party
to, and does not comply with, the convention.

Nevertheless, recognizing the risk of liability to our employees and the
potential for an international incident, the convention\'s
discouragement of the transboundary shipment of hazardous waste for
disposal is embodied in 0EBGD/FGS restrictions applicable to hazardous
waste generated on DoD\'s overseas installations and facilities. /193/
Recent OPLANs have contained similar restrictions on the disposal of
hazardous waste I generated during contingency operations. /194/
Disposal in an environmentally‑sound manner within the host nation is
preferred. If this is not possible, the waste may be retrograded
(returned) to the U.S. or, with the approval of the DoD, transported to
another country for disposal. /195/

Since the U.S. is not a party to the Basel Convention and most of DoD\'s
overseas installations and facilities are located in countries which
are, retrograde usually involves the transboundary shipment of hazardous
waste from within the geographical borders of a Party to a non‑Party,
which is prohibited by the convention absent a separate \"agreement or
arrangement.\" However, the U.S. has espoused the position /196/ that
the retrograde of waste generated or managed exclusively by a DoD
installation or facility overseas, accomplished solely aboard sovereign
immune vessels or aircraft, is not subject to the Convention. /197/
Alternatively, the U.S. argues that existing SOFAs, basing agreements,
and other implementing arrangements constitute \"agreements or
arrangements\" under Article 11 of the convention which allow the
retrograde of waste to the U.S. /198/

The transport of DoD generated hazardous waste to another country for
disposal clearly violates the Basel Convention. Absent an \"agreement or
arrangement\" which specifically allows the import of hazardous waste
for disposal, the transport of the waste by a DoD component to a third
country aboard a military aircraft, vessel, vehicle, or a contract
carrier, would violate the Convention\'s restrictions on transboundary
shipment, and potentially invoke criminal sanctions against those
involved. However, if the transport of hazardous waste to a third
country is arranged by a contractor who accepted the waste from the
component or DRMO for disposal, /199/ the contractor is obligated to
comply with the convention\'s pre‑notification and other requirements
reflected in host‑nation law prior to the transboundary shipment.

Although the U.S. for the most part has not agreed to seek or comply
with host‑nation environmental permits, /200/ practical considerations
encourage I our compliance with their provisions. Installations and
facilities made available for our use are usually either the property of
host‑nation federal authorities, or those authorities have obtained a
leasehold interest in the property. In either case, a host‑nation
agency, often the ministry of defense or the ministry of finance, acts
as our landlord and secures, in its own name, any permits required by
host‑nation law. Since the host‑nation landlord agency and its employees
are required to comply with host‑nation laws, they are vulnerable to any
civil or criminal sanctions associated with noncompliance with permits
issued in its name. Although the DoD installation or facility would not
directly feel the impact of such sanctions, we are motivated to comport
our operations to the requirements of the permit in order to maintain
good relations and to avoid losing access to the installation or
facility as a consequence of the sanctions imposed on our landlord
agency or its employees.

**D. The Consequences of Noncompliance**

The FGS carries no specific sanctions, /201/ nor are they mandated by
international agreement with the host‑nation. The FGS simply reflect DoD
policy. Nevertheless, failure to comply with these environmental
protection standards is not without consequence.

When properly communicated through training to the individual whose
actions are regulated by the FGS, the standards create a duty to
perform. A dereliction of that duty by military personnel could form the
basis for disciplinary action under Article 92 of the Uniform Code of
Military Justice. 202 Similarly, a breach of that duty by DOD civilian
personnel could form the basis for adverse personnel action. /203/

A violation of host‑nation environmental requirements could also subject
the offender to criminal sanctions imposed by local authorities.
Although the U.S. could avoid locally‑imposed sanctions for violations
of host‑nation environmental protection laws by asserting its
sovereignty, individual members of the force, the civilian component,
and local national employees are subject to local law. /204/ Status of
Forces Agreements provide some protection to members of the force,
generally granting the U.S. primary jurisdiction /205/ over all persons
subject to its \"military law\" /206/ for \"offenses arising out of any
act or omission done in the performance of official duty, /207/ However,
that protection does not extend to the civilian component /208/ or local
national employees, making them particularly vulnerable to prosecution
by local authorities /209/ for violation of environmental protection
requirements. /210/ Recognizing that vulnerability, policies have been
established which direct that military members sign environmental
documentation in an effort to insulate civilian employees from potential
liability associated with the performance of their duties. /211/

Of course, the ultimate consequence for noncompliance would be to
jeopardize our continued access to an accommodation (installation or
facility). Our use of accommodations is, of course, at the pleasure of
the host government. Concern that the DoD is environmentally
irresponsible could lead a host‑nation to conclude that the benefits of
our continued presence are outweighed by our destructive environmental
practices.

**IV. CLEANUP**

Like other environmental protection requirements, clean‑up rules for DoD
installations and facilities overseas have a mixed lineage. They reflect
a combination of DoD policy, obligations under international agreements,
and the limited remediation provisions of the compliance‑oriented FGS.
In the absence of FGS, the OEBGD applies. The levels of cleanup,
funding, and even the obligation to conduct remediation actions, vary
significantly depending on the basis for cleanup.

**A. Final Governing Standards**

Generally, FGS \"do not apply to remedial or cleanup actions to correct
environmental problems caused by the DoD\'s past activities. /212/
Cleanup of past activities is conducted \"in accordance with applicable
international agreements, Status of Forces Agreements, and U.S.
government policy.\" /213/

Nevertheless, the OEBGD does provide for cleanup in two circumstances
spill response and leaking underground storage tanks.

The obligation to respond to spills specifically includes uncontained
releases /214/ of petroleum, oil, and lubricants; /215/ polychlorinated
biphenyls; /216/ and /217/ hazardous substances. In addition to
containment and dispersal, DoD components are also required to cleanup
spills. /218/ The obligation to remediate applies regardless of whether
the spill occurs on or off an installation or facility, /219/ and would,
for example, include spills off an installation resulting from accidents
involving an Army fuel truck or an Air Force aircraft. /220/

The cleanup of spills is performed by the DoD component in
\"cooperati\[ion\] with national, regional and local government
agencies.\" /221/ Although the FGS provides no numerical standard to
determine appropriate levels for the remediation of a spill, it requires
cleanups to be performed to the risk‑based level of \"ensur\[ing\] that
public health and welfare are adequately protected. Since the cleanup is
conducted in cooperation with local authorities, that risk-based cleanup
level would necessarily be determined in coordination with those
authorities. However, absent some other international legal obligation
or political imperative when local authorities demand a more protective
level of cleanup than we believe is needed to adequately protect health
and welfare, we are under no obligation to comply. Rather, we would
invite the local authorities to either perform or fund the additional
cleanup they desire, use SOFA claims provisions, or identify the
contamination as an off‑set to residual value.

The FGS also mandates the remediation of \"soil and groundwater
contaminated by \[a\] release\" from a leaking underground storage tank
(UST). /223/ However, while the obligation to remediate is clearly
stated, no guidance is offered by the FGS regarding the appropriate
cleanup standard to apply. Rather, the FGS specifically defers to
international agreements, SOFAs, and other DoD policy to \"determin\[e
the\] cleanup actions \[required\] to correct the environmental
problems, /224/ caused by the \"past activity\" of leaking USTs.

Those cleanup actions would include both the specific technology to be
employed and the cleanup standards to be applied. We would therefore
look to applicable international agreements (i.e., SOFAs) and DoD policy
to determine the cleanup standards to be applied to remediation of
\"soil and groundwater contaminated by the release\" from a UST.

Again, absent some other international legal obligation or political
imperative, if the local authorities demand a more protective level of
cleanup than is necessary under DoD policy, we are under no obligation
to comply. Rather, we would invite the local authorities to either
perform or fund the additional cleanup they desire, use applicable SOFA
claims provisions, or identify the contamination as an off‑set to
residual value.

Finally, it is important to note that hazardous or solid waste generated
as a result of any remediation action, whether based on the FGS, DoD
policy, or international agreement, is subject to the storage and
disposal requirements of the FGS.

**B. Department of Defense Policy**

The first overseas DoD cleanup policy, published in December 1993, only
applied to closing bases. /225/ That policy allowed cleanup of
environmental contamination under two circumstances. Cleanup was
mandated if the contamination posed a \"known imminent and substantial
danger to human health and safety,\" and was permitted if necessary to
\"sustain current operations." /226/ in either case, the component was
required to consult with the environmental executive agent before
implementing any remediation. /227/ Additional contamination beyond that
which was subject to remediation under the policy was documented, and
the information provided to the host‑nation upon return of the site.
/228/ The policy was clearly designed to both limit the expenditure of
funds for cleanup at installations and facilities designated for closure
/229/ and to ensure consistency of remediation decisions among
components in a host‑nation.

On 18 October 1995, the DoD published a comprehensive environmental
remediation policy for all DoD installations and facilities /230/
overseas. /231/ The new policy does not apply to cleanups under the FGS
(spill responses or remediation of leaking USTs) or to operations
connected with actual or threatened hostilities, peacekeeping missions,
or relief operations. /232/ The policy provides for cleanup of
contamination \"caused by DoD operations\" on or off an installation or
facility, and applies to open installations as well as installations
designated for return. /233/ Like the former policy for closing
installations, it mandates prompt cleanup action if the contamination
poses a \"known imminent and substantial endangerment to human health
and safety,\" and permits cleanup if necessary to \"maintain
operations.\" Additionally, the new policy permits cleanup to \"protect
human health and safety\" or if required by international agreement.

Notwithstanding its similarity to standards used in U.S. environmental
law, /234/ policy drafters were purposefully ambiguous in not defining
the phrase \"known imminent and substantial endangerment to human health
and safety\" to allow decisionmakers maximum flexibility. However, by
its terms, this basis for cleanup contemplates \"known\" contamination,
reflecting a policy aversion to excessive and expensive investigations
or site studies. At the same time, it does not limit the appropriate
study of a known site to properly characterize it for purposes of
designing a remedy. /235/

In addition, the new DoD policy relating to permissive cleanups does not
expand upon the language, \"to protect human health and safety.\" Since
the remediation of almost any contamination which poses some risk to
human health and safety could be justified under its rubric, it provides
a very broad basis for cleanup. However, unlike the other three bases
for cleanup, it is only available to justify the cleanup on a DoD
installation or facility. Although not required by the policy, it may be
prudent to determine cleanup standards in consultation with local
authorities in order to avoid adverse relations with the host nation and
future demands for additional cleanup. Nevertheless, absent some other
international legal obligation or political imperative, if the local
authorities demand a more protective level of cleanup than required
under the DoD policy, we are under no obligation to comply. Rather, we
would invite the local authorities to either perform or fund additional
cleanup they desire, use SOFA claims provisions to recoup remediation
costs, or identify the contamination as an off‑set to residual value.

The term \"maintain operations\" also provides a very broad basis for
cleanup. Undefined by the policy, it could be used to justify cleanup
under circumstances ranging from remediation incident to a construction
project, to remediation demanded by host‑nation authorities because the
failure to do so would impact future access to the installation or
facility. Cleanup standards would be determined based on the
circumstances of the remediation and would range from the minimum
necessary to complete the construction project, /236/ to a robust
cleanup where significant human exposure to the site is anticipated.
/237/

The new policy also authorizes, somewhat unnecessarily, cleanups that
the

U.S. is obligated to perform by international agreement. /238/

Implicit in every cleanup conducted pursuant to the policy is a measure
of remediation ‑ a determination of \"how clean is clean\" ‑ based on
the level of remediation required to achieve the goals of the action.
Contamination is abated, not removed, and remediation may range from
institutional responses, such as restricting access, to permanent
remedies. /239/ The cleanup is complete when the contamination: no
longer poses an imminent and substantial endangerment to human health
and safety; no longer poses a threat to human health and safety; does
not impair operations; or has been remediated as required by
international agreement.

The in‑theater commander of the service component or defense agency is
the decision authority for all cleanups under the Policy, /240/ but the
decision as to whether a contaminated site poses an \"imminent and
substantial endangerment\" may be delegated to the installation
commander. /241/ In all cases, however, the decision authority must
first consult with the EA before any cleanup pursuant to the policy is
begun.

The EA is empowered by the policy to define the extent of remediation at
contaminated sites /242/ in order to maintain consistency of remediation
efforts by the services within a host‑nation. This effectively gives the
EA veto power over component remediation decisions which are too
expansive or too limited when compared to the EA\'s country‑specific
remediation policy. /243/ Appeal to the unified commander and the Deputy
Under Secretary of Defense (Environmental Security) is provided for in
the event of a dispute between the component and the EA. /244/ The EA
also establishes procedures for negotiating with the host

nation and for furnishing documentation of contamination /245/ on DoD

installations or facilities to the host‑nation. /246/

Finally, the policy requires components and defense agencies to collect
and maintain existing information, and permits them to develop
additional information, regarding environmental contamination at DoD
installations and facilities. /247/ The information is maintained until
the location is returned to the host nation and all claims or other
issues relating to contamination are finally resolved. /248/ Subject to
security requirements, the information is provided to host‑nation
authorities, if requested, upon return of the installation or facility.
/249/

The new DoD policy gives decisionmakers wide flexibility and discretion
in making remediation decisions, constrained by the need for consistency
between the services in a given host‑nation or theater. However, the
policy does not provide any additional funds for remediation, and
cleanup projects would compete for scarce operations and maintenance
funds. Nor does the policy alter our obligations under international
agreements, including SOFA claims provisions.

**C. International Agreements**

Our SOFA and other agreements with host‑nations are generally silent
regarding any obligation to remediate environmental contamination caused
by DoD operations. /250/ Indeed, our agreements with some nations where
DoD installations and facilities are located relieve the U.S. of any
obligation to restore property provided for its use to its original
condition upon return. /251/ Other agreements include a waiver of claims
by the host‑nation, under certain circumstances, for damage to
host‑nation property made available for the use of the DoD. /252/ When
the 1993 Revisions to the German Supplementary Agreement (SA) becomes
effective, /253/ the U.S. will, for the first time, become obligated to
\"bear costs arising in connection with the assessment, evaluation and
remedying of hazardous substance contamination caused by it and that
exceeds then‑applicable legal standards.\" /254/ Nevertheless, that
obligation is specifically subject to SOFA claims provisions, residual
value, and \"the availability of funds." /255/

Claims provisions included in our SOFAs generally obligate the U.S. to
compensate third parties who are damaged as a result of the acts or
omissions of members of our forces or civilian component done in the
performance of official duty. /256/ Claims are received and adjudicated
by the host‑nation in accordance with its local law, and damages are
determined with reference to any legally mandated maximum contaminate
levels. If approved, the U.S. is normally obligated to contribute 75% of
the amount awarded. The host‑nation pays the remaining 25%. \"Third
parties\" are generally described in these agreements as parties other
than the \"contracting parties\" /257/ ‑ the national authorities who
are parties to the agreement ‑ and could include local governmental,
quasi‑governmental, or private water authorities in whose district
groundwater was contaminated by our operations.

Unless a DoD component determines, in consultation with the EA, that it
would be more fiscally prudent for the DoD to conduct and fund 100% a
cleanup ourselves pursuant to DoD policy (because of spreading
contamination and consequent projected increase in remediation costs),
third parties should be referred to the SOFA claims provisions. Cleanup
standards for contamination which are the subject of a SOFA claim are
generally determined both through reference to any applicable
host‑nation law, and as a result of negotiation with the claimant and
appropriate host‑nation regulator by the host‑nation claims commission
and the DoD claims authority.

**D. Application of Cleanup Requirements: A Hypothetical**

Assessing our cleanup responsibility for a DoD contaminated site
overseas requires the application of the requirements reflected in the
FGS (for spills), DoD policy (for past activities), and applicable
international agreements. The cleanup decision also requires a realistic
assessment of political imperatives and their implications for our
continued access to the installation or facility. Depending on the
circumstances, that assessment may prove the most important
consideration in making the cleanup decision. The following hypothetical
involving cleanup requirements is presented in an apolitical vacuum,
without benefit of such an assessment. It also assumes the lack of any
remediation obligation under applicable international agreements.

Assume there\'s been soil contamination on a DoD installation or
facility overseas at site B or C which are located on the base proper.
Further assume it is 100% funded by the component in consultation with
the EA. We also

assume the contamination poses an imminent and substantial endangerment
to human health or safety, or remediation is required to maintain
current

operations or to protect human health or safety. If the host‑nation
desires a level of cleanup above the level which is required or
authorized by DoD policy, the host‑nation authority should either be
invited to bear the costs of the

additional cleanup, permitted access to the site to conduct additional
cleanup,

Next, assume that on‑base groundwater contamination has occurred at site
A. It represents damage to a third party under the SOFA (typically a
local water authority or private water company). The component, in
consultation with the EA, must conduct cleanup if the contamination
poses an imminent and substantial endangerment to human health and
safety. If the contamination does not pose an imminent and substantial
danger, the component may, in consultation with the EA, choose to either
conduct a cleanup required to protect human health and safety or to
maintain operations, or to refer the third party to the SOFA\'s claims
provisions. As a claim, the DoD would bear a 75% share of the costs
awarded to the claimant by the host‑nation claims
commission.![](media/image1.png){width="4.323611111111111in"
height="3.2840277777777778in"}

Finally, assume there has been soil or groundwater contamination off a
DoD installation or facility (site A, off‑base). This contamination must
be remediated by the component, in consultation with the EA, if the
contamination poses an imminent and substantial danger to human health
and safety. Like an on‑base site, if the contamination does not pose an
imminent and substantial danger, the component may, in consultation with
the EA, choose to conduct cleanup necessary to maintain operations. If
the host‑nation desires a level of cleanup above the level which is
required, or authorized, by DoD policy, the host‑nation authority should
be invited to bear the costs of the additional cleanup. If remediation
pursuant to DoD policy is not required or necessary, and the
contamination represents damage to a third party under the SOFA, the
third party should be referred to the SOFA claims provisions.

**V. ON THE HORIZON**

Looking toward the horizon is always a risky undertaking, but it is
important to look beyond the environmental requirements of the here and
now to see what may lie ahead for DoD installations and facilities
overseas.

Since early 1993, consideration has been given to the possible
modification of E.O. 12114 to apply NEPA‑like environmental impact
analysis requirements to major federal actions overseas. /259/ In an
effort to escape the potentially onerous outcome of such a consequence,
the DoD will expand the environmental impact analysis requirements of
the current executive order to effectively eliminate the \"participating
nation\" exception. Major federal actions involving a participating
nation, which would heretofore have been exempt from the requirements of
DoD Dir. 6050.7, /260/ will be subject to the same environmental impact
analysis requirements as major federal actions not involving a
participating nation.

The generally self‑imposed environmental protection obligations at DoD
installations and facilities overseas reflect a, commitment to provide,
subject to funding constraints, our personnel and the host‑nation
environment with a level of protection equivalent to that afforded by
U.S. standards. The FGS, as derived from the baseline standards of the
OEBGD, embodies that policy.

The update of the OEBGD, scheduled for completion in late 1996, will
precipitate a review of every FGS to determine if modification is
necessary to comport with the changes made in the baseline standards.
/261/ While the changes occasioned by this update promise to be
disruptive to installations and facilities where the internalization of
FGS is relatively new, it will not be the last such experience. Proposed
changes to DoD Dir. 6050.16 would not alter the current requirement to
revalidate FGS \"on a periodic basis.\" /262/ but would add a biennial
review of the OEBGD.

The process of recurrent review and update of OEBGD and FGS is a
resource‑intensive, and perpetual, effort to comport our operations with
the substantive environmental protection requirements of host‑nation
law, where those requirements are more protective of the environment
than the OEBGD\'s baseline standards. Yet because those reviews are not
on‑going, our governing standards will never reflect the current state
or sophistication of host‑nation environmental protection requirements.
Indeed, as currently applied, the policy effectively misses
installations and facilities located in host‑nations where DoD\'s
presence is too small to justify the formulation of FGS. /263/

Environmental protection in many nations has progressed dramatically in
the last decade. Legislatively mandated standards in such fundamental
areas as air, drinking water, hazardous materials, hazardous waste, and
wastewater, as well as protections for natural and cultural resources,
are becoming more and more common. As nations hosting DoD forces become
increasingly sophisticated in their environmental protection
requirements, and the disparity between those requirements and baseline
U.S. environmental protection standards diminishes, the justification
for FGS is effectively eroded.

As host nations generally adopt standards as protective as the OEBGD
baseline, the natural evolution of environmental protection requirements
at DoD installations and facilities overseas will be to comply, as a
matter of policy, with the host‑nation\'s substantive \"pollution
control standards of general applicability. /264/ Executive agents will
be authorized to compare the OEBGD /265/. as a whole system of
compliance with the host‑nation\'s regulatory scheme for environmental
protection, evaluate the host‑nation scheme in the national context in
which developed (not strictly in terms of a quantitative comparison of
numerical values), and defer to the host‑nation\'s system if it is as
protective of the environment as the OEBGD. Compliance at installations
and facilities will be achieved by direct reference to the substantive
requirements of host‑nation law, not through application of derivative
FGS generated at great expense by EAs. While the broad ceding of
sovereignty such as that reflected in the 1993 Revisions to the German
Supplementary Agreement /266/ may be duplicated in other countries, our
self‑imposed efforts to practice good environmental stewardship ‑ as
defined by host‑nation law ‑ may avoid the perceived need for such
extreme measures.

The restrictions on transboundary movement of hazardous waste reflected
in the 1989 Basel Convention have been adopted by 97 of the world\'s 185
nations. Those restrictions have routinely created vexing obstacles to
the disposal of hazardous waste generated during contingency operations.
The obstacles have been overcome, and waste appropriately disposed of,
but generally not without some difficulty and strained interpretation of
existing agreements. Such difficulties could be avoided through the
conclusion of an \"agreement or arrangement\" with the host‑nation under
Article I I of the Convention. /267/

As the U.S. becomes increasingly involved in contingency operations
worldwide, and as those operations require the conduct of operations in
countries which are parties to the Basel Convention, we will come to
include hazardous waste shipment and disposal considerations in our
initial basing or status of forces negotiations in order to explicitly
conclude an Article II agreement or arrangement.

Department of Defense policy regarding the cleanup of contaminated sites
at both open and closed installations and facilities overseas has the
potential to generate significant controversy in the future. As
host‑nations become more environmentally aware and more sensitive to
contamination of their soil and groundwater, contaminated sites on our
installations will receive more public and political interest.

Contamination on installations which are returned to a host‑nation are
potentially the greatest source for controversy. In Germany alone, the
DoD components have returned nearly 650 installations or facilities
since 1990. /268/ The waiver of claims provisions in SOFAs often leave
host‑nations with no option but to treat the cost of cleanup as an
off‑set to residual value. However, depending on the number of such
sites in a given country and the cleanup standards which the host‑nation
seeks to apply to the sites, those off‑sets could far out‑strip the
residual value of improvements. The host‑nation is thus left to bear a
substantial remediation expense before the property may be reused.

Nevertheless, given the practical realities of fiscal constraints on the
availability of funds, significant changes in current policy are not
likely. The claims provisions of SOFA agreements will likely be used
more often by affected third parties, generally local water authorities.
Cleanups will be performed at open installations by the DoD components,
motivated in no small measure by the political imperatives existing at
the installation or facility. The cleanup will be done in accordance
with reasonable risk‑based standards which are most often determined in
negotiation with host‑nation authorities in an effort to ensure that
human health is adequately protected.

The DoD has proclaimed its leadership role in environmental compliance
and protection. That philosophy is fundamental, and the continued focus
on environmental stewardship by DoD components at their installations
and facilities worldwide will ensure the access our country needs to
accomplishment its national security objectives.

\*Lieutenant Colonel Phelps (B.B.A., Eastern New Mexico University;
J.D., Oklahoma City University School of Law) is Chief, Environmental
Law, Headquarters United States Air Forces in Europe, Ramstein Air Base,
Germany. He is a member of the Bar of New Mexico.

1\. Coined by Mr. Gary Vest, Principal Assistant Deputy Under Secretary
of Defense (Environmental Security), the term \"environmental security\"
means to \"strengthen national security by integrating environmental,
safety, and health considerations into defense policies.\" Address by
Mr. Vest, entitled Environmental Security, to Joint Environmental
Conference, Washington, D.C. (27 Sept. 1994).

2\. This term describes that body of environmental requirements, whether
self‑imposed or imposed as a matter of domestic or international law,
applicable to DoD installations and facilities overseas.

3\. 20 U.S.C.A. Secs. 4011‑22 (West 1990 & Supp. 1996).

4\. Id. at Sec. 4020(5)(B).

5\. 42 U.S.C.A. Secs. 4821‑46 (West 1995).

6\. E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), citing
Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949).

7\. 42 U.S.C.A. Secs. 4321‑70d (West 1994 & Supp. 1996).

8\. 16 U.S.C.A. Secs. 1531‑43 (West 1985 & Supp. 1996).

9\. Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 530 (D.C.
Cir. 1993).

10\. 772F. Supp. 1296 (D.D.C. 1991).

11\. Id. at 1297, citing E.E.O.C. v. Arabian American Oil Co., 499 U.S.
244 (1991).

12\. The D.C. Circuit Court of Appeals once before considered the
application of NEPA overseas, but did not decide the issue. Sierra Club
v. Adams, 578 F.2d 389, 392 (D.C. Cir. 1978).

13\. 986 F.2d at 528.

14\. Id. at 529, citing Beattie v. United States, 756 F.2d 91, 99 (D.C.
Cir. 1984).

15\. 986 F.2d at 533.

16\. Id. at 532.

17\. Id. at 533.

18\. Id. at 536.

19\. Id.

20\. The broader issue of the potential application of NEPA-like
requirements to other federal actions overseas became the subject of
Presidential Review Directive 17. That on-going review has not resulted
to date in any change in existing policy regarding the environmental
impact analysis process for major federal actions overseas. This policy
is found in E.O. 12114, Environmental Effects Abroad of Major Federal
Actions (Jan. 4, 1979).

21\. 50 C.F.R. Sec. 402.01 (1986).

22\. 911 F.2d 1 17 (8th Cir. 1990).

23\. Id. at 125.

24\. Justice Scalia delivered that portion of the opinion which
concluded that the respondents lacked the standing element of \"actual
or imminent\" injury. Justices Rehnquist, White, and

Thomas joined his opinion. Justices Kennedy and Souter concurred.

25\. 504 U.S. 555 (1992).

26\. Id. at 564, 568.

27\. 50 C.F.R. Sec. 402.01 (1995).

28\. See, e.g., Exec. Order (E.O.) 11752, Prevention, Control, and
Abatement of

Environmental Pollution at Federal Facilities (Dec. 19, 1973); E.O.
11507, Prevention,

Control, and Abatement of Air and Water Pollution at Federal Facilities
(Feb. 5, 1970); E.O.

11288, Prevention, Control, and Abatement of Water Pollution by Federal
Activities (July 7,

1966); E.O. 11282, Prevention, Control, and Abatement of Air Pollution
by Federal

Activities (May 28, 1966); E.O. 11258, Prevention, Control, and
Abatement of Water

Pollution by Federal Activities (Nov. 19, 1965); E.O. 10779, Directing
Federal Agencies to

Cooperate with State and Local Authorities in Preventing Pollution of
the Atmosphere (Aug.

22, 1958); and E.O. 10014, Directing Federal Agencies to Cooperate with
State and Local

Authorities in Preventing Pollution of Surface and Underground Waters
(Nov. 3, 1948).

29\. E.O. 12088 (13 Oct. 1978). Paragraph 1‑1 of the order obligates the
head of each executive agency to ensure its facilities and activities
comply with the same substantive, procedural, and other pollution
control requirements that would apply to a private person.

30\. E.O. 12088 at paras. 1‑2 and 1‑3.

31\. Id. at preamble.

32\. Id. at para. 1‑801 (emphasis added).

33\. Paragraph 1‑103 of the order defines \"applicable pollution control
standards \[as\] the same substantive, procedural, and other
requirements that would apply to a private person.\" However, both the
definition and the term are used in the order to describe the
environmental compliance obligations of federal facilities located in
the United States. Although similar, the clause \"environmental
pollution control standards of general applicability\" is only used to
describe the environmental compliance obligations of federal facilities
outside the United States. While the former phrase specifically
includes, by definition, procedural as well as substantive requirements,
the latter is limited by its terms (pollution control standards of
general applicability) and general principles of sovereignty to
compliance with substantive, not procedural, requirements.

34\. E.O. 12114, Environmental Effects Abroad of Major Federal Actions
(Jan. 4, 1979); 44 Fed. Reg. 1957 (1979), reprinted in 42 U.S.C.A. Sec.
4321, at 515 \[hereinafter E.O. 121141.

35\. Id. at para. 1‑1.

36\. Id. at para. 2‑1.

37\. Id. at para. 2‑3(a)‑(d). The order extends to major federal actions
which significantly affect a) the global commons (e.g., the oceans or
Antarctica); b) the environment of a foreign

nation which is not participating or involved in the action; c) the
environment of a foreign nation by generating a U.S.‑regulated toxic or
radioactive product; or d) ecological resources of global importance
designated for protection by the President or international agreement.

38\. Id. at para. 24(a).

39\. Id. at para. 2‑5(a).

40\. Id. at para. 2‑5(c). The order provides that \"\[a\]gency procedure
may provide for categorical exclusions . . . as may be necessary to meet
emergency circumstances, situations involving exceptional foreign policy
and national security sensitivities and other such special
circumstances.\" Id

41\. Id. at para. 2‑1.

42\. DoD Dir. 6050.7, Environmental Effects Abroad of Major Department
of Defense Actions (Mar. 3 1, 1979).

43\. Id. at para. D. 3.

44\. At the request of the Subcommittee on Environment, Energy and
Natural Resources, House Committee on Government Operations, the GAO
audited hazardous waste management practices at DoD facilities overseas.
In reports published in September 1986 and in October 1988 the GAO
concluded that confusion existed at base‑level regarding the standards
applicable to hazardous waste storage and disposal at overseas bases.
The GAO attributed that confusion to a lack of clear DoD policy guidance
regarding the applicability of U.S. and host‑nation law to hazardous
waste management, as well as problems with inconsistent guidance issued
by the services and limited information at base‑level regarding
host‑nation law. GAO/C‑NSIAD‑86‑24, Hazardous Waste Management Problems
at DoD Overseas Installations (Sept. 1986); GAO/NSIAD‑91‑23 1, Hazardous
Waste Management Problems Continue at Overseas Military Bases (Aug. 199
1).

45\. National Defense Authorization Act for Fiscal Year 199 1, Pub. L.
No. 10 1‑5 10, Sec. 342 para. (b)(1), 104 Stat. 1485, 1537‑38 (1990)
\[hereinafter National Defense Authorization Act for FY 1991\]. The Act
provides that

The Secretary of Defense shall develop a policy for determining
applicable environmental requirements for military installations located
outside the United States. In developing the policy, the Secretary shall
ensure that the policy gives consideration to adequately protecting the
health and safety of military and civilian personnel assigned to such
installations.

46\. DoD Dir. 6050.16, DoD Policy for. Establishing and Implementing
Environmental Standards at Overseas Installations (20 Sept. 199 1)
\[hereinafter DoD Dir. 6050.16\].

47\. A 4 Mar. 1996 draft revision (DoD Instr. 4715.HH) does specifically
reference E.O. 12088.

48\. E.O. 12088, para. 1‑801.

49\. The directive, and the standards derived therefrom, do not apply to
the operations of U.S. naval vessels, U.S. military aircraft, or
operational deployments.

50\. DEPT. OF DEFENSE ENVT\'L. OVERSEAS TASK FORCE, OVERSEAS
ENVIRONMENTAL BASELINE GUIDANCE DOCUMENT (1992) \[hereinafter OEBGD\].

51\. DoD Dir. 6050.16, supra note 46, at para. C. 1.

52\. Id. at para. C.2.b. The EA is required to a) identify host‑nation
environmental standards; b) determine their applicability to DoD
installations under current international agreements; c) consider
whether the host‑nation standard is adequately defined and generally
enforced against host‑government and private sector activities; and d)
consider whether construction, maintenance, and operation of the
facility is a U.S. or host‑nation responsibility.

53\. Id. at para. C.2. Although the standard \"most protective of the
environment\" does not appear in the directive, it commonly refers to
the process of comparing the OEBGD to hostnation standards in the
formulation of final governing standards (FGS). See, e.g., OEBGD, supra
note 50, at 1‑7, and Draft Revised DoD Instr. 4715.HH, DoD Policy for
Management of Environmental Compliance at Overseas Installations, para.
F. 3.b. (2) (4 Mar. 1996).

54\. Id. at para. C. 3.

55\. Id. at para. B.3.

56\. OEBGD, supra note 50, preamble.

57\. DoD Dir. 6050.16, supra 46, at para. B. 5.

58\. National Defense Authorization Act for Fiscal Year 1991, supra note
45, sec. 342, para. (b)(2). Specifically, the Act provided

The Secretary of Defense shall develop a policy for determining the
responsibilities of the Department of Defense with respect to cleaning
up environmental contamination that may be present at military
installations located outside the United States. In developing the
policy, the Secretary shall take into account applicable international
agreements (such as Status of Forces agreements), multinational or joint
use and operation of such installations, relative share of the
collective defense burden, and negotiated accommodations.

59\. Message from Secretary of the Defense, SECDEF MSG 142159Z DEC 93,
DoD Policy and Procedures for the Realignment of Overseas Sites
\[hereinafter SECDEF policy\].

60\. Id. at para. 4.E. The Air Force quickly adopted the SECDEF policy
for all its overseas installations, either open or designated for
closure. See Air Force Instr. 32‑7006, Environmental Program in Foreign
Countries, para. 2.2 (29 Apr. 1994).

61\. Id.

62\. Memorandum from Deputy Secretary of Defense John P. White,
Environmental Remediation Policy for DoD Activities Overseas (18 Oct
1995) \[hereinafter DoD Cleanup Policy\].

63\. Id. at para. 1.

64\. Id.

65\. Id. at para. 2.c. Protection of human health and safety is not
available as a basis for cleanup off an installation.

66\. The policy, which applies \"to all DoD overseas activities pending
promulgation of an instruction on the same subject,\" was adopted for
the Air Force by Letter from USAF/CE to All Major Commands (30 Nov.
1995).

67\. Agreement Under Article VI of the Treaty of Mutual Cooperation and
Security Between the United States of America and Japan, Regarding
Facilities and Areas and the Status of United States Armed Forces in
Japan, 19 Jan. 1960, art. IV, 11 U.S.T. 1652, 373 U.N.T.S. 248
\[hereinafter Japan SOFA\]. Specifically, the Japan SOFA states:

The United States is not obliged, when it returns facilities and areas
to Japan on

the expiration of this Agreement or at an earlier date, to restore the
facilities and areas to the condition in which they were at the time
they became available to the United States armed forces, or to
compensate Japan in lieu of such restoration.

68\. Agreement Under Article IV of the Mutual Defense Treaty Between the
United States of America and the Republic of Korea, Regarding Facilities
and Areas and the Status of United States Armed Forces in the Republic
of Korea, 9 July 1966, art. IV, 17 U.S.T. 1677, 674 U.N.T.S. 163
\[hereinafter Korea SOFA\]. Specifically, the Korea SOFA states:

The Government of the United States is not obliged, when it returns
facilities and

areas to the Government of the Republic of Korea on the expiration of
this

Agreement or at an earlier date, to restore the facilities and areas to
the condition in

which they were at the time they became available to the United States
armed forces, or to compensate the Government of the Republic of Korea
in lieu of such restoration.

69\. Agreement to Supplement the Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of their Forces with Respect
to Foreign Forces Stationed in the Federal Republic of Germany, 3 Aug.
1959, art. 41, para. 3(a), 14 U.S.T. 531, 481 U.N.T.S. 262 \[hereinafter
German Supplementary Agreement\].

70\. Id. at re art. 4 1, para. 4.

71\. Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Forces, 19 June 1951, 4 U.S.T. 1792, 199
U.N.T.S. 67 \[hereinafter NATO SOFA\].

72\. Id. at art. II.

73\. Although receiving States are not known to have asserted it in
practice, the NATO SOFA arguably obligates the sending States to conform
to a higher level of compliance with local law than implicit in the
obligation to respect the law of the receiving State. The specific
provision provides that \"\[i\]n the absence of a specific contract to
the contrary, the laws of the receiving State shall determine the rights
and obligations arising out of the occupation or use of the buildings,
grounds, facilities or services.\" Id. at art. IX, para. 3.

74\. Agreement to Supplement the Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of their Forces With Respect
to Foreign Forces Stationed in the Federal Republic of Germany, 18 Mar.
1993 \[hereinafter 1993 Revision of the German Supplementary
Agreement\]. To date, Germany and the sending States of Canada, Great
Britain, The Netherlands, and the U.S. have ratified the agreement. The
sending States of France and Belgium have not.

75\. The \"\[a\]greement shall enter into force thirty days following
the deposit of the last instrument of ratification or approval.\" Id. at
art. 83, para. 2.

76 Id. at art. 53, para. 1. Within the installation or facility, made
available for its exclusive use, a force or civilian component may take
all the measures necessary for the satisfactory fulfillment of its
defense responsibilities.

German law shall apply to the use of such accommodation except as
provided in the present Agreement and other international agreements,
and as regards the organization, internal functioning and management of
the force and its civilian component, the members thereof and their
dependents, and other internal matters which have no foreseeable effect
on the rights of third parties or on adjoining communities or the
general public.\"

Id. (emphasis added)

77\. Id. at art. 53A, para. 1. The provision states:

Where German law applies in connection with the use of accommodation
covered by Article 53 of the present Agreement, and requires that a
special permit, license or other form of official permission be
obtained, the Germany authorities shall, in co‑operation with the
authorities of a force and following consultation with them, submit the
necessary applications and undertake the relevant administrative and
legal procedures for the force.

78\. Id. at art. 54B. The provision states:

The authorities of a force and of a civilian component shall ensure that
only fuels, lubricants and additives that are low‑pollutant in
accordance with German environmental regulations are used in the
operation of aircraft, vessels and motor vehicles, insofar as such use
is compatible with the technical requirements of such aircraft, vessels
and motor vehicles. They shall further ensure that, with respect to
passenger and utility motor vehicles, especially in the case of new
vehicles: the German rules and regulations for the limitation of noise
and exhaust gas emissions shall be observed to the extent this is not
excessively burdensome.

79\. Id. at art. 55, para. 3.

80\. Id. at re art. 63, para. 8bis.(a). The provision states:

A force or a civilian component shall in accordance with this paragraph
bear costs arising in connection with the assessment, evaluation and
remedying of hazardous substance contamination caused by it and that
exceeds then‑applicable legal standards. These costs shall be determined
pursuant to German law as applied in accordance with paragraph 1 of
Article 53 or, where applicable, in accordance with Articles 41 or 52.
The authorities of the force or of the civilian component shall pay
these costs as expeditiously as feasible consistent with the
availability of funds and the fiscal procedures of the Government of the
sending State.

81\. Id.

82\. E.O. 12114, supra note 34,

83\. Id. at para. 1‑1.

84\. Id.

85 Id. at para. 2‑3(d). \"Ecological resources of global importance\"
are so designated for protection \"by the President, or, in the case of
such a resource protected by international agreement binding on the
United States, by the Secretary of State.\" Id.

86\. Id. at para. 2‑3.

87\. Id. at para. 2‑3 (b).

88\. Id. at para. 2‑3(a)‑(d). The order extends to major federal actions
which significantly affect: a) the global commons (e.g., the oceans or
Antarctica); b) the environment of a foreign nation which is not
participating or involved in the action; c) the environment of a foreign
nation by generating a U.S.‑regulated toxic or radioactive product; or
d) ecological resources of global importance designated for protection
by the President or international agreement.

89\. Id. at para. 2‑4(a).

90\. Id. at para. 2‑5(a).

91\. Id. at para. 2‑5(c). \"Agency procedure may provide for categorical
exclusions \... as may be necessary to meet emergency circumstances,
situations involving exceptional foreign policy and national security
sensitivities and other such special circumstances.\"

92\. DoD Dir. 6050.7, supra note 42. Air Force Instr. 32‑7061, The
Environmental Impact Analysis Process (24 Jan. 1995) further implements
the requirements.

93\. Unfortunately, the executive order and directive do not define the
key terms \"participating\" or \"otherwise involved.\"

94\. Id. at para. C.2. Federal action is defined as \"an action that is
implemented or funded directly by the United States Government.\"

95 Id. at para. C.5. This provision defines a major action as an action
of considerable importance involving substantial expenditures of time,
money, and resources, that affects the environment on a large geographic
scale or has substantial environmental effects on a more limited
geographical area, and that is substantially different or a significant
departure from other actions, previously .analyzed with respect to
environmental considerations and approved, with which the action under
consideration may be associated. Deployment of ships, aircraft, or other
mobile military equipment is not a major action for purposes of this
directive.

96\. Id.

97\. Id. at encl. 2, para. C.3.a.(2). These include: signing bills into
law; signing treaties and other international. agreements; the
promulgation of Executive Orders; Presidential proclamations; and the
issuance of Presidential decisions, instructions, and memoranda. This
includes actions taken within the Department of Defense to prepare or
assist in preparing recommendations, advice, or information for the
President in connection with one of these actions by the President. It
does not include actions taken within the Department of Defense to
implement or carry out these instruments and issuances after they are
promulgated by the President.

98\. Id. at encl. 2, para. C.3.a.(3). The term armed conflict refers to:
hostilities for which Congress has declared war or enacted a specific
authorization for the use of armed forces; hostilities or situations for
which a report is prescribed by section 4(a)(1) of the War Powers
Resolution, 50 U.S.C.A. Section 1543(a)(1)

(Supp. 1978); and other actions by the armed forces that involve
defensive use or

introduction of weapons in situations where hostilities occur or are
expected. This

exemption applies as long as the armed conflict continues.

99\. Id. at encl. 2, para. C.3.a.(4). \"The determination that the
national security or national interest is involved in actions by the
Department of Defense must be made in writing by the Assistant Secretary
of Defense (Manpower, Reserve Affairs, and Logistics).\"

100\. Id. at encl. 2, para. C.3.a.(5). These components include: the
Defense Intelligence Agency, the National Security Agency, the offices
for the collection of specialized intelligence through reconnaissance
programs, the Army Office of the Assistant Chief of Staff for
Intelligence, the Office of Naval Intelligence, and the Air Force Office
of the Assistant Chief of Staff for Intelligence.

101\. Id. at encl. 2, para. C.3.a.(6). The term \"arms transfers\"
refers to: \"the grant, loan, lease, exchange, or sale of defense
articles or defense services to foreign governments or international
organizations, and the extension or guarantee of credit in connection
with these transactions.\"

102\. Id. at encl. 2, para. C.3.a.(7). This includes: \"all decisions
and actions of the United States with respect to representation of its
interests at international organizations, and at multilateral
conferences, negotiations, and meetings.\"

103\. Id. at encl. 2, para. C.3.a.(9). This includes:

advice provided by DoD components to the Department of State with
respect to the

issuance of munitions export licenses under section 38 of the Arms
Export Control

Act, 22 U.S.C. Section 2778 (1976); advice provided by DoD components to
the

Department of Commerce with respect to the granting of export licenses
under the

Export Administration Act or 1969, 50 U.S.C. App. Sections 2401‑2413
(1970 &

Supp. V 1975); and direct exports by the Department of Defense of
defense articles

and services to foreign governments and international organizations that
are exempt

from munitions export licenses under section 38 of the Arms Export
Control Act,

22 U.S.C. Section 2778 (1976). The term \"export approvals\" does not
mean or

include direct loans to finance exports.

104\. Id. at encl. 2, para. C.3.b.

105\. Id. at encl. 2, para. CA. To date, the Assistant Secretary of
Defense (Manpower, Reserve Affairs, and Logistics) has not promulgated
any categorical exclusions. However, a 25 Jan. 1996 draft revision of
the DoD Directive currently under consideration does include some
categorical exclusions.

106\. Id. at encl. 1, para. B. An environmental assessment may assist in
determining whether an EIS is required. Id. at encl. 1, para. C.9.

107\. Id. at para. C.4.

108\. Id. at encl. 1, para. D. 1.

109\. Id. at encl. 1, para. D. 5.

110\. Id. at encl. 1, para. D.2.

111\. Id. at encl. 1, para. D. 9.

112\. Id. at encl. 1, para. D.7. Factors to consider in determining
whether to hold a public hearing include:

\[F\]oreign relations sensitivities; whether the hearings would be an
infringement or create the appearance of infringement on the sovereign
responsibilities of another government; requirements of domestic and
foreign governmental confidentiality; requirements of national security;
whether meaningful information could be obtained through hearings; time
considerations; and requirements for commercial confidentiality.

113\. Id. at encl. 1, para. D.9. A notice of the availability of the
draft and final statements must be published in the Federal Register.
However, \"the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics) may, upon a showing of probable important
adverse effect on national security or foreign policy, reduce the
30‑day, 45‑day, and 90‑day periods.\" Id.

114\. Id. at encl. 2, para. D. 1a.

115\. Id. at encl. 2, para. D. 1b.

116\. Id.

117\. Id. at encl. 2, para. D4.

118\. Id.

119\. Id. at encl. 2, paras. D. 5. and 6.

120\. Id. at encl. 2, para. D.3.

121\. Id.

122\. Id. The restriction is somewhat flexible. National security and
foreign government involvement considerations may require prompt action
before completion of an ES. Id. at encl. 2, para. DA

123\. Id. at encl. 2, para. D.5.

124\. Id. at encl. 2, para. E.1a.

125\. Id. at encl. 2, para. E.1b.

126\. Id.

127\. Id. at encl. 2, para. E4.

128\. Id. at encl. 2, para. E.5.

129\. Id. at encl. 2, para. E.3.

130\. Id. The restriction is flexible. Considerations of national
security and foreign government involvement may require prompt action
before completion of an ER. Id. at encl. 2, para. EA

131\. Id.

132\. OEBGD, supra note 50, at ch. 17, preamble.

133 The directive does not specifically refer to E.O. 12088. However, a
4 Mar. 1996 draft revision of the directive (DoD Instr. 4715.HH)
currently under consideration does specifically reference the E.O.

134\. DoD Dir. 6050.16, supra note 46, at para. A. 1.

135\. Although \"installation and facility\" are not defined by the
directive, the term \"military installation,\" is expansively defined in
the National Defense Authorization Act for FY 1991, supra note 45, as
\"a base, camp, post, station, yard, center, or other activity under the
jurisdiction of the Secretary of a military department which is located
outside the United States and outside any territory, commonwealth, or
possession of the United States.\" That definition is included in the 4
Mar. 1996 draft revision of the directive.

136\. DoD Dir. 6050.16, supra note 46, at para. B.2. The directive does
not apply to the operations of vessels or aircraft, facilities and
activities covered by the Naval Nuclear Propulsion Program, or to the
determination or conduct of remedial or cleanup actions. Id.

137\. Id. at para. C. 1.

138\. Id. at paras. C.2. and D. Lb.

139\. Id. at paras. C.2.b. and C.2.d.

140\. OEBGD, supra note 50, at 1‑1.

141\. DoD Dir. 6050.16, supra note 46, at para. C.2.a. However, because
of the potential liability of DoD civilian employees, particularly local
national employees, some EAs chose to include host‑nation requirements
that historically had not been enforced against host government and
private sector activities.

142\. Id. at para. C.2.c.

143\. OEBGD, supra note 50, at 1‑7 (Implementation).

144\. Air Force Instr. 32‑7006, Environmental Program in Foreign
Countries, para 3.3 (29 Apr. 94).

145\. DoD Dir. 6050.16, supra note 46, para. C. 1.b.

146\. Id. at para. D.2.

147\. The following hypothetical illustrates these concepts. Assume
drinking water at an overseas Air Force base is drawn from wells on the
installation, treated, and then delivered to the base via an Air
Force‑managed water distribution system. This system services the on
base military family housing and dormitories. Many personnel live in
nearby communities some in housing leased by the Air Force. Routine
testing of the water detects levels of trichloroethylene (TCE) at 10
ppb, well in excess of the FGS standard of 5 ppb. The FGS mandates
public notification when a DoD water system is out of compliance with
its provisions. Assume, however, that the local host‑nation drinking
water standard for TCE is 30 ppb, three times what was detected in the
sample tested. Even if the FGS is more restrictive than the host
nation\'s standards, the Air Force\'s is still obligated to comply with
the FGS notification requirements. In addition, the Air Force must still
plan, program, and budget for necessary corrective actions.
Nevertheless, the existence, of the host nation\'s less stringent
standard should be considered in drafting the public notification. Note
also that the FGS notification requirements apply only to DoD‑operated
water distribution systems. Therefore, while notification must be made
to base residents (and any others to whom water is distributed to
through the base system), the Air Force would not have to notify DoD
personnel residing off‑base who do not receive water from the base
system. However, when off‑base housing (or any other facility) is leased
by the Air Force, and the Air Force has the authority or responsibility
to operate and maintain the water distribution system servicing the
facility (and so controls the means necessary to comply with the FGS),
the FGS drinking water standards would apply. Notwithstanding the
inapplicability of the FGS in situations where the DoD does not have the
authority or responsibility to operate the water distribution system,
other safety and readiness considerations apply. DoD Dir. 4165.63‑M,
para. 2.D.3.d.(l), requires that off‑base housing must \"not pose a
health, safety, or fire hazard\" in order to be included on the
installation\'s housing referral listing. If concerns exist concerning
poor water quality (or the presence of radon, friable asbestos, peeling
lead‑based paint, etc.) which may pose a health hazard to DoD personnel
who occupy off‑base housing, the installation commander is authorized to
test to determine the existence and nature of the hazard. If a hazard is
identified, the installation commander could remove the housing from the
referral listing (or threaten the landlord with that consequence unless
the condition is remedied) and even move the DoD occupants to another
house at government expense. See Air Force Instr. 55‑60 1, Vol. I,
Budget Guidance and Procedures, para. 10. 5 1.

148\. OEBGD, supra note 50, at 1‑7 (Implementation).

149\. Id. at 1‑5, para. h.

150\. Id. at p. 1‑8.

151\. Id. The draft of DoD Inst. 4715.HH, supra note 133, would
substantially restrict waivers based upon lack of funds. The draft
states that waivers could only be granted when compliance would
\"require substantial expenditure of funds for physical improvements at
an installation that has been identified for closure or at an
installation that has been identified for realignment that would remove
the requirement.\"

152\. OEBGD, supra note 50, at 1‑9.

153\. Id.

154\. Id. \"For such a request, the Executive Agent shall consult with
the relevant Military Department and Defense Agencies and the commander
of the unified command with geographic responsibility.\"

155\. USEUCOM Environmental Executive Agent Steering Committee Policy
Paper, Waivers to Final Governing Standards in the European Theater,
para. Lb (22 Aug 95). The EUCOM waiver policy provides specific guidance
on waiver requests for theater components. The draft of DoD Instr.
4715.HH, supra note 133, allows a component commander to appeal a
disapproved waiver to the combatant commander and, ultimately, to the
Deputy Under Secretary of Defense for Environmental Security.

156\. DoD Dir. 6050.16, supra note 46, para. D.2.c.

OEBGD, supra note 50, at 1‑6, paras. b. and c.

158\. Id. at 1‑1.

159\. USCINCEUR OPLAN 4243(U), Environmental Considerations and Services
(U), tab B to app. D, p. 1‑1 (2 Dec. 1995) \[hereinafter EUCOM
Environmental Annex\].

160\. The U.S. element of the NATO peace implementation force (IFOR)
deployed to Bosnia­

Herzegovina, Croatia, and Hungary in Dec. 1995 in support of the Dayton
Peace Accord.

161\. EUCOM Environmental Annex, supra note 159.

162\. JCS Pub. 4‑04, Joint Doctrine for Civil Engineering Support (22
Feb. 1995).

163\. EUCOM Environmental Annex, supra note 159, at para. 1a.

164\. Id. at para. 1b.

165\. Id. at para. 2.

166\. Id. at para. 3.

167\. Id. at para. 3.c.(1).

168\. Id. at para. 3.c.(3).

169\. Id. at para. 3.c. (4).

170\. Id at para. 3.c.(5) and (6).

171\. Id. at para. 3.c. (7).

172\. Id. at para. 3.c.(8).

173\. Id. at paras. 3.c.(7)(d) and (8)(e).

174\. Id. at para. 3.c. (9).

175\. Id. at para. 3.c.(10).

176\. Id. at para. 3.c. (11).

177\. Id. at para. 3.a.(2).

178\. Id. at para. 3.a.(3). For example, \"dumping or abandonment shall
be avoided but may be justified under combat or other hostile
conditions.\" Id. at para. 3.a.(4).

179\. USAREUR (Fwd)/COMNSE Environmental Engineer is the EA.

180\. Id. at para. 2.c.

181\. See, e.g., NATO SOFA, supra note 71, art. II; Japan SOFA, supra
note 67, art. XVI; and Korea SOFA, supra note 68, art. VII.

182\. See, e.g., NATO SOFA, supra note 71, art. II (United States agreed
that its forces have a duty to respect the law of the receiving State).
See generally Mark R. Ruppert, Criminal Jurisdiction Over Environmental
Offenses Committed Overseas: How to Maximize and When to Say \"No,\" 40
A.F. LAW REV. 1 (1996) (this issue) (discussing how, our policy of
maximizing jurisdiction may not be supportable as it applies to
environmental criminal offenses).

183\. See, e.g., Principles for Construction Contracting (I Oct. 1982)
(implementing art. 49 of the 1959 German Supplementary Agreement, supra
note 69).

184\. 1959 German Supplementary Agreement, supra note 69, art. 49, para.
2.

185\. 1989 Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 649 (1989)
\[hereinafter Basel Convention\]. The Basal Convention is found at the
United Nations Environmental Programme, Geneva, Switzerland, Home Page
http://www.unep.ch/sbc.html.

186\. Id. (preamble).

187\. Id. at art. 4, para. 5.

188\. Id. at art. 11.

189\. Id. at art. 9, para. 5.

190\. The European Union adopted and expanded upon the provisions of the
Basel Convention in EU Regulation 259/93, On the Supervision and Control
of Shipments of Waste Within, Into and Out of the European Community (1
Feb. 1993) making the convention, as expanded, directly applicable to
all EU member States.

191\. The United States signed the convention on 22 Mar. 1989.

192\. Although the U.S. Senate gave its advice and consent to ratify,
additional statutory authorities needed for implementation have not been
obtained, and, as a consequence, the United States has not ratified the
convention. 61 Fed. Reg. 8323 (1996).

193\. OEBGD, supra note 50, at 1‑1.

194\. See, e.g., EUCOM Environmental Annex, supra note 159; Letter from
HQ USAFE/CEV, Hazardous Waste Disposal in Zakho, Iraq (Operation Provide
Comfort).

195\. OEBGD, supra note 50, ch. 6, sec. 11, para. 2.a.; DoD Dir.
6050.16, supra note 46, at para. 4.

196\. Agreed Text, Applicability of the Basel Convention to U.S.
Military Facilities Overseas (undated) (reflecting the consensus
position of representatives of the military departments, DoD, Department
of State, Defense Logistics Agency, and the Environmental Protection
Agency).

197\. Id.

198\. Id. The United States has to date concluded only one Article 11
agreement (with Malaysia), although it \"is developing agreements with
several other Basel Parties.\" 61 Fed. Reg. 8323 (1996).

199\. The disposal contract should require the contractor to use
environmentally‑sound disposal methods and. to provide the agency with a
certificate of disposal, but it would not specify where to dispose of
the waste. A contractor\'s decision to transport the waste to another
country for contract‑compliant disposal would be his/her business
decision.

200\. But see 1993 Revision of the German Supplementary Agreement, supra
note 69, art, 53A, para. 3., where the United States agrees to \"act in
strict conformity with the terms and requirements\" of any \"special
permit, license or other form of official permission\" obtained by the
German landlord agency for our operations.

201\. Indeed, the OEBGD, supra note 50, provides that it \"does not
create any rights or obligations enforceable against the United States,
DoD or any of its services or agencies, nor does it create any standard
of care or practice for individuals.\" Id. at p. 1‑3.

202\. 10 U.S.C.A. Sec. 892 (West 1983). Article 92 can also be found in
the MANUAL FOR COURTS‑MARTIAL, pt. IV, Para. 16 (1995). The offense
requires proof that the accused had certain duties, that the accused
knew or reasonably should have known of the duties, and that the accused
was willfully or through neglect or culpable inefficiency derelict in
the performance of those duties. Id. Duties may be imposed by standard
operating procedure. Id. at Para. 16c.(3)(a). Proof of actual knowledge
of duties can be shown by circumstantial evidence, and \"\[a\]ctual
knowledge need not be shown if the individual reasonably should have
known of the duties.\" This may be demonstrated by regulations, training
or operating manuals, . . . testimony of persons who have held similar
or superior positions, or similar evidence.\" Id. at Para. 16c.(3)(c).

203\. 5 CFR 752, Subpt. A ‑ D; Air Force Instr. 36‑704, Discipline and
Adverse Actions (22 July 1994).

204\. NATO SOFA, supra note 71, art. VII, para. 1.(b).

205\. See e.g., Japan SOFA, supra note 67, art. XVII, para. 3.(a)(ii);
Korea SOFA, supra note 68, art. XXII, para. 3.(a)(ii); NATO SOFA, supra
note 71, art. VII, para 3. (a).

206\. Id. at para. 1. (a).

207\. Id, para. 3. (a)(ii). Our ability to assert primary jurisdiction
requires the existence of facts that could constitute an offense under
U.S. law, including the Uniform Code of Military Justice.

208\. Arguably, art. VII, para. 1.(a), of the NATO SOFA, supra note 71,
grants the United States primary \"disciplinary jurisdiction\" over
civilian employees who commit offenses in the performance of their
official duty. Although not generally recognized, this argument has had
limited success in some countries. See also Japan SOFA, supra note 67,
art. XVII, para. 1.(a); Korea SOFA, supra note 68, art. NMI, para.
1.(a).

209\. U.S. authorities are always at liberty to ask the host‑nation to
not exercise, or to relinquish, jurisdiction in a given case, and may do
so where the facts demonstrate that a U.S. or local national civilian
employee\'s conduct was in conformity with established procedures, or
under other meritorious circumstances.

210\. For example, the wastewater treatment facility at Rhein‑Main AB,
Germany, is operated pursuant to a discharge permit obtained from local
regulatory authorities by the Federal Ministry of Finance, Superior
Finance Directorate, the installation\'s landlord German agency. The
facility was staffed by two local national employees, a plant manager,
and an assistant. The permit required periodic monitoring for compliance
with specific limits on oil and grease, BOD, COD**,** and suspended
solids. Test results reflecting exceedences of permit limits for oil and
grease were provided to the Superior Finance Directorate, which, in
turn, reported them to the regulatory agency. Local installation
operating procedures existed, and if followed, the procedures would have
ensured compliance with permit limits. In response to the reported
exceedences of permit limits, the regulator referred the violation to
the local prosecutor. At the request of the prosecutor, the Frankfurt
District Court issued penal orders (similar to citations) on 22 Apr.
1994 to the two facility workers for negligently polluting the
environment. Both men contested the penal orders. The penal order
against the subordinate was dismissed. The manager accepted the court\'s
offer to dismiss the order against him if he paid a \"settlement fee\"
of 350ODM (approximately \$2,500 US). Although attorney\'s fees for the
two employees (totaling 8677DM) were payable, reimbursement of the
\"settlement fee\" by the Air Force was prohibited by AR
27‑50/SECNAVINST 5820.4G/AFR 110‑12, Status of Forces Policies,
Procedures, and Information, para. 2‑7a (14 Jan. 1990).

211\. For example, it is USAREUR\'s policy to have military personnel,
rather than civilian employees, sign hazardous waste manifests whenever
possible.

212\. OEBGD, supra note 50, at 1‑1.

213\. Id.

214\. Id. at 18‑2, para. 7.

215\. Id. at Ch. 9.

216\. Id. at Ch. 14.

217\. Id. at ch. 18. The term \"hazardous substances\" is defined by
reference to a multi‑page table which includes hundreds of chemicals.

218\. Id. at ch. 18..

219\. Id. at 18‑1, para. 2 (\"on or near the installation\") and at
18‑6, para. 5.e. (\"outside of a DoD installation\").

220\. Neither the OEBGD, supra note 50, nor DoD Dir. 6050.16, supra note
46, specifically mentions off‑base activities such as these. The
conclusion that the requirements would apply is the author\'s, based on
his interpretation of chapter 18 of the OEBGD.

221\. Id. at 18‑1.

222\. Id.

223\. Id. at 19‑3.

224\. Id. at 1-1.

225\. SECDEF MSG, supra note 60. The Air Force adopted the policy in
April 1994 and applied it to all its overseas installations.

226\. Id. at para. 4.E.

227\. Id.

228\. Id.

229\. Id.

230\. The term \"installation and facility\" includes \"DoD activities
on host nation installations or facilities,\" id at para. 1, but is not
further defined by the directive. However, the term \"military
installation\" is expansively defined in The National Defense
Authorization Act for Fiscal Year 199 1, supra note 44, as \"a base,
camp, post, station, yard, center, or other activity under the
jurisdiction of the Secretary of a military department which is located
outside the United States and outside any territory, commonwealth, or
possession of the United States.\"

231\. DoD Cleanup Policy, supra note 62. The Air Force adopted the
policy on 30 Nov. 1995 by HQ USAF/CE letter pending the update of Air
Force Instr. 32‑7006.

232\. Id. at para. 1.

233\. \"After return of an installation or facility, DoD shall not fund
any environmental remediation beyond that required by binding
international agreement or that which is pursuant to a \... remediation
scheme\" approved by the service component prior to return of the
facility. Id. at para. 2.b.(1) and (4).

234\. See, e.g., 42 U.S.C.A. Sec. 9606(a) (West 1995 & Supp. 1996); EPA
Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for
Remedial Designs and Remedial Actions (Mar. 13, 1990); EPA Enforcement
Authority Guidance Under Section 122(r) (9) of the Clean Air Act, 56 FR
24393 (May 30, 1991); B.F. Goodrich Co. v. Murtha, 697 F.Supp. 89 (D.
Conn. 1988); United States v. Conservation Chem. Co., 619 F.Supp. 162
(W.D. Mo. 1985); United States v. Ottati and Goss, Inc., 630 F.Supp.
1361 (D. N.H. 1985); United States v. Northeastern Pharm. and Chem. Co.,
579 F.Supp. 823 (W.D. Mo. 1984), aff\'d in part and rev\'d in part on
other grounds, 8 10 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S.
1008 (1987); and United States v. Reilly Tar & Chemical Corp., 546
F.Supp. 1100 (D. Minn. 1982).

235\. Although available since Dec. 1993, to date \"imminent and
substantial endangerment\" has not been used by any component as a basis
for cleanup within the European theater.

236\. For example, in a remediation effort conducted incidental to a
runway extension, the cleanup standards would likely be based on the
protection of the construction worker\'s health during his/her
short‑term but direct exposure, and the impact the contaminate may have
on the construction materials.

237\. For example, in a remediation incident to the construction of a
child development center, the cleanup standards would likely be based on
the anticipated duration and nature of the exposure to young children.

238\. DoD Cleanup Policy, supra note 62, at paras. 2.a.(3), 2.b.(3), and
2.c.(3).

239\. Id. at para 3.

240\. Id. at paras. 2.a.(2), 2.b.(2), 2.c.(2), and 3. Decisions would be
based on the recommendations of the commander\'s engineering, medical,
legal, and other advisors. The policy specifically requires consultation
with the appropriate medical authority before the taking action to
remediate a known imminent and substantial endangerment to human health
and safety.

241\. Id. at para. 3.

242\. Id. at para. 6.

243\. Id However, in order to avoid conflicts among the components,
USEUCOM has established an Environmental Executive Agent Working Group.
The group is developing a consensus implementation of the new DoD
policy. It will also coordinate cleanup strategies and approaches and
encourage consistency within host nations and the theater of operations.

244\. Id.

245\. Id.

246\. Id.

247\. Id. at para. 7.

248\. Id. \"Information on contamination not on a DoD installation or
facility but that was caused by U.S. operations shall be collected and
maintained until issues relating to the contamination are finally
resolved with the host nation.\"

249\. Id. The information is provided to host‑nation authorities through
the DoD environmental executive agent and the embassy.

250\. A notable exception is our obligation in the Republic of Panama to
take all measures to ensure insofar as may be practicable that every
hazard to human life, health and safety is removed from any defense site
or a military area of coordination or any portion thereof, on the date
the United States Forces are no longer authorized to use such site.
Prior to the transfer of any installation, the two Governments will
consult concerning: (a) its conditions, including removal of hazards to
human life, health and safety; and (b) compensation for its residual
value, if any exists.

Agreement in Implementation of Article IV of the Panama Canal Treaty
Between the United States of America and The Republic of Panama with
Annexes, Agreed Minute and Exchange of Notes, 7 Sept. 1977 (entry into
force for the U.S. on I Oct. 1979), art. IV, para. 4.

251\. See, e.g., Japan SOFA, supra note 67, art. IV; and Korea SOFA,
supra note 68, art. IV.

252\. See, e.g., NATO SOFA, supra note 71, art. VIII, para. 1; 1993
Revision of the German Supplementary Agreement, supra note 69, art. 41,
para. 3.(a) and re art. 41, para. 4.

253\. 1993 Revisions to the German Supplementary Agreement, supra note
69, re art. 63, 8bis.(b).

254\. Id.

255\. Id. The Supplementary Agreement provides:

These costs shall be determined . . . in accordance with Articles 41
\[claims provisions of Art VIII of the NATO SOFA\] or 52 \[residual
value off‑sets\]. The authorities of the force or of the civilian
component shall pay these costs as expeditiously as feasible consistent
with the availability of funds and the fiscal procedures of the
Government of the sending State.

Id. Depending on the size of the remediation project, availability of
funds could be measured by Congress\' willingness to provide funding.
Id.

256\. See, e.g., NATO SOFA, supra note 71, art. VIII, para. 5; Japan
SOFA, supra note 67, art. XVIII, para. 5; Korea SOFA, supra note 68,
art. XXIII, para. 5.

258\. Conversely, DoD residual value negotiators must insist upon
receiving indemnification for sites where off‑sets are granted. The
consequence of failing to secure such indemnification could be that the
United States \"pays\" for the damage (environmental contamination) with
an off‑set to residual value now, and \"pays\" again later when a
thirdparty presents a claim.

259\. Presidential Review Directive/NSC‑23, U.S. Policy on
Extraterritorial Application of the National Environmental Policy Act
(NEPA) (8 Apr. 1993).

260 DoD Dir. 6050.7, supra note 42, which implements E.O. 12114.

261\. OEBGD update proposals currently under consideration include the
addition of baseline standards for flood plains, coastal zones,
wetlands, lead‑based paint, unexploded ordnance, non‑point source
wastewater discharges, pollution prevention, training ranges, and
restoration.

262\. DoD Dir. 6050.16, supra note 46, para. C.2.e.

263\. OEBGD, supra note 50, 1‑2.

264\. E.O. 12088, supra note 29, para. 1‑8.

265\. Exclusive of environmental impact analysis requirements and other
requirements that do not reflect standards of operational compliance for
protection of human health or the environment.

266\. See 1993 Revision of the German Supplementary Agreement, supra
note 69, at art. 53 (application of German law to the use of the
accommodation); art. 53A (strict conformity with conditions of permits
or licenses, subject to enforcement); art. 54B (use of low‑pollutant
fuels, submission to noise and gas emission limitations); art. 57
(observation of regulations on transport of hazardous materials); re
art. 63 (bear the costs of assessment, evaluation, and remedying of
hazardous substance contamination).

267\. Basel Convention, supra note 185, at art. 11. Notwithstanding the
general requirement that Parties \"not permit hazardous wastes or other
wastes to be exported to a non‑Party or to be imported from a
non‑Party,\"

Parties may enter into bilateral, multilateral, or regional agreements
or

arrangements regarding transboundary movement of hazardous wastes or
other

wastes with Parties or non‑Parties provided that such agreements or
arrangements

do not derogate from the environmentally sound management of hazardous
wastes

and other wastes as required by this Convention. Id.

268\. Telephone Interviews with William Nichols, HQ USAREUR, ODCS ENGR,
AEAENENVR (5 Mar. 1996) and Michael Gargano, HQ USAFE/CEPR (5 Mar.
1996).