I 

111TH CONGRESS 

1ST SESSION H. R. 672 

To amend title 10, United States Code, to require the Department of Defense 

and all other defense-related agencies of the United States to fully 

comply with Federal and State environmental laws, including certain 

laws relating to public health and worker safety, that are designed 

to protect the environment and the health and safety of the public, 

particularly those persons most vulnerable to the hazards incident to 

military operations and installations, such as children, members of the 

Armed Forces, civilian employees, and persons living in the vicinity 

of military operations and installations. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 26, 2009 

Mr. FILNER introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committees on Energy 

and Commerce, Transportation and Infrastructure, Natural Resources, 

and Education and Labor, for a period to be subsequently determined by 

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title 10, United States Code, to require the Department of Defense and all other defense-related agencies of the United States to fully comply with Federal 

and State environmental laws, including certain laws relating to public health and worker safety, that are designed to protect the environment and the health and 

safety of the public, particularly those persons most vulnerable to the hazards incident to military operations 

and installations, such as children, members of the 


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Armed Forces, civilian employees, and persons living in 

the vicinity of military operations and installations. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Military Environmental Responsibility Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Purposes. 

Sec. 3. Compliance of federal defense agencies with public safety and environmental laws. 

Sec. 4. Applicability of NEPA to weapon system development and procurement. 

Sec. 5. Repeal of prohibitions on use of defense funds for environmental compliance and payment of penalties. 

Sec. 6. Savings provision. 

8 SEC. 2. PURPOSES. 

9 The purposes of this Act are as follows: 

10 (1) To require the Department of Defense and 

11 all other defense-related agencies of the United 

12 States, as defined in the amendment made by sec13 tion 3(a), to comply with all Federal and State laws 

14 that are designed to protect the environment or the 

15 health and safety of the public to the same extent 

16 as all other entities subject to those laws. 

17 (2) To entirely waive any and all sovereign im18 munity and to entirely revoke any and all exemp19 tions of the Department of Defense and all other deVerDate Nov 24 2008 06:13 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H672.IH H672

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1 fense-related agencies of the United States within 

2 the United States and abroad that might in any way 

3 limit or exempt those agencies from complying with 

4 all Federal and State environmental laws designed 

5 to protect the health and safety of the public or the 

6 environment. 

7 (3) To leave no ambiguity for the executive or 

8 judicial branches that the Department of Defense 

9 and all other defense-related agencies are fully sub10 ject to all the requirements and possible enforcement 

11 of all Federal and State environmental laws designed 

12 to protect the health and safety of the public or the 

13 environment. 

14 SEC. 3. COMPLIANCE OF FEDERAL DEFENSE AGENCIES 

15 WITH PUBLIC SAFETY AND ENVIRONMENTAL 

16 LAWS. 

17 (a) COMPLIANCE REQUIRED.—Chapter 160 of title 

18 10, United States Code, is amended by adding at the end 

19 the following new section: 

20 ‘‘§ 2711. Applicability of environmental laws to the 

21 Department of Defense and defense-re22 lated agencies 

23 ‘‘(a) DEFINITIONS.—In this section: 

24 ‘‘(1) The term ‘Federal defense agency’ 

25 means— 


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1 ‘‘(A) the Department of Defense; 

2 ‘‘(B) the Department of Energy; 

3 ‘‘(C) the Nuclear Regulatory Commission; 

4 ‘‘(D) the Office of Naval Nuclear Reactors 

5 provided for by Executive Order 12344 (47 

6 Fed. Reg. 4979; 50 U.S.C. 2511 note; Feb7 ruary 3, 1982), relating to the Naval Nuclear 

8 Propulsion Program; 

9 ‘‘(E) any other defense-related agency of 

10 the United States designated by the President 

11 for purposes of this section; and 

12 ‘‘(F) installations, facilities, and operations 

13 of the Department of Defense and other de14 fense-related agencies covered by this para15 graph, whether located or conducted inside or 

16 outside of the United States. 

17 ‘‘(2) The term ‘defense agency head’ means— 

18 ‘‘(A) the Secretary of Defense, with respect 

19 to the Department of Defense and installations, 

20 facilities, and operations of the Department of 

21 Defense, whether located or conducted inside or 

22 outside of the United States; and 

23 ‘‘(B) the head of a Federal defense agency 

24 covered by any of subparagraphs (B) through 

25 (E) of paragraph (1), with respect to that agenVerDate Nov 24 2008 06:13 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H672.IH H672

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1 cy and installations, facilities, and operations of 

2 that agency, whether located or conducted in3 side or outside of the United States. 

4 ‘‘(3) The term ‘administering Federal agency’ 

5 means the Federal agency responsible for the admin6 istration or enforcement, or both, of a Federal law 

7 covered by subsection (c). In most cases that agency 

8 is the Environmental Protection Agency. 

9 ‘‘(4) The term ‘State’ includes any unit of local 

10 government within a State, and the term ‘State law’ 

11 includes any local law and any interstate compact or 

12 agreement. 

13 ‘‘(b) APPLICABILITY OF ENVIRONMENTAL LAWS.— 

14 The substantive and procedural requirements of each of 

15 the laws covered by subsection (c) shall apply to each Fed16 eral defense agency in the same manner and to the same 

17 extent as any person is subject to those requirements. To 

18 the extent not provided before the date of the enactment 

19 of the Military Environmental Responsibility Act in any 

20 other provision of law, the United States hereby expressly 

21 waives any immunity, and revokes any exemption, other22 wise applicable to a Federal defense agency with respect 

23 to any such substantive or procedural requirement. 

24 ‘‘(c) COVERED LAWS.—The laws covered by this sub25 section are all Federal laws, including treaties and regulaVerDate Nov 24 2008 06:13 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H672.IH H672

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1 tions, and all State laws, that are designed to protect the 

2 environment or designed to protect the health and safety 

3 of the public. At a minimum, those laws include the fol4 lowing Federal laws and their analogous State counter5 parts: 

6 ‘‘(1) The Atomic Energy Act of 1954 (42 

7 U.S.C. 2011 et seq.). 

8 ‘‘(2) The Clean Air Act (42 U.S.C. 7401 et 

9 seq.). 

10 ‘‘(3) The Comprehensive Environmental Re11 sponse, Compensation, and Liability Act of 1980 (42 

12 U.S.C. 9601 et seq.). 

13 ‘‘(4) The Coastal Zone Management Act of 

14 1972 (16 U.S.C. 1451 et seq.). 

15 ‘‘(5) The Department of Energy Organization 

16 Act (42 U.S.C. 7101 et seq.). 

17 ‘‘(6) The Emergency Planning and Community 

18 Right-To-Know Act of 1986 (42 U.S.C. 11001 et 

19 seq.). 

20 ‘‘(7) The Endangered Species Act of 1973 (16 

21 U.S.C. 1531 et seq.). 

22 ‘‘(8) The Federal Water Pollution Control Act 

23 (33 U.S.C. 1251 et seq.). 

24 ‘‘(9) The Marine Mammal Protection Act of 

25 1972 (16 U.S.C. 1361 et seq.). 


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1 ‘‘(10) The National Environmental Policy Act 

2 of 1969 (42 U.S.C. 4321 et seq.). 

3 ‘‘(11) The Noise Control Act of 1972 (42 

4 U.S.C. 4901 et seq.). 

5 ‘‘(12) The Nuclear Waste Policy Act of 1982 

6 (42 U.S.C. 10101 et seq.). 

7 ‘‘(13) The Occupational Safety and Health Act 

8 of 1970 (29 U.S.C. 651 et seq.). 

9 ‘‘(14) The Oil Pollution Act of 1990 (33 U.S.C. 

10 2701 et seq.). 

11 ‘‘(15) The Robert T. Stafford Disaster Relief 

12 and Emergency Assistance Act (42 U.S.C. 5121 et 

13 seq.). 

14 Notwithstanding the first sentence of this subsection, the 

15 Safe Drinking Water Act (42 U.S.C. 300f et seq.) and 

16 the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) 

17 are not covered by this subsection, such laws containing 

18 sovereign immunity waiver provisions that otherwise ap19 propriately provide for protection of the environment and 

20 the health and safety of the public. 

21 ‘‘(d) COVERED SUBSTANTIVE AND PROCEDURAL RE22 QUIREMENTS.—(1) The substantive and procedural re23 quirements referred to in subsection (b) include the fol24 lowing: 


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1 ‘‘(A) All regulatory standards, guidelines, and 

2 prohibitions including all emission standards, tox3 icity standards, exposure standards, and use prohibi4 tions. 

5 ‘‘(B) All administrative orders. 

6 ‘‘(C) All civil and administrative penalties and 

7 fines, regardless of whether such penalties or fines 

8 are punitive or coercive in nature or are imposed for 

9 isolated, intermittent, or continuing violations. 

10 ‘‘(D) All conditions for permits or reporting. 

11 ‘‘(E) All provisions for injunctive relief and 

12 such sanctions as may be imposed by a court to en13 force such relief. 

14 ‘‘(F) The payment of service charges. 

15 ‘‘(2) The service charges referred to in paragraph 

16 (1)(F) include fees or charges assessed in connection with 

17 the processing and issuance of permits, renewal of per18 mits, amendments to permits, review of plans, studies, and 

19 other documents, and inspection and monitoring of facili20 ties, as well as any other nondiscriminatory charges that 

21 are assessed in connection with a Federal or State regu22 latory program under a law covered by subsection (c). 

23 ‘‘(3) Neither the United States, nor any agent, em24 ployee, or officer thereof, shall be immune or exempt from 

25 any process or sanction of any State or Federal Court with 


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1 respect to the enforcement of any such injunctive relief. 

2 No agent, employee, or officer of the United States shall 

3 be personally liable for any civil penalty under any Federal 

4 or State law covered by subsection (c) with respect to any 

5 act or omission within the scope of the official duties of 

6 the agent, employee, or officer. An agent, employee, or of7 ficer of the United States shall be subject to any criminal 

8 sanction (including any fine or imprisonment) under any 

9 Federal or State law covered by subsection (c), but no de10 partment, agency, or instrumentality of the executive, leg11 islative, or judicial branch of the United States shall be 

12 subject to any such sanction. 

13 ‘‘(e) USE OF EXEMPTION AUTHORITY.—If a Federal 

14 law covered by subsection (c) authorizes the President or 

15 the head of the administering Federal agency to grant ex16 emptions from any substantive or procedural requirement 

17 of that law, any use of that authority on behalf of a Fed18 eral defense agency after the date of the enactment of the 

19 Military Environmental Responsibility Act shall be effec20 tive only for a specified period, not to exceed 180 days, 

21 unless such period is specifically extended by Act of Con22 gress. 

23 ‘‘(f) ADMINISTRATIVE ENFORCEMENT ACTIONS.— 

24 The head of an administering Federal agency shall com25 mence an administrative enforcement action against a deVerDate Nov 24 2008 06:13 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H672.IH H672

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1 fense agency head pursuant to the enforcement authorities 

2 contained in the relevant Federal law covered by sub3 section (c) in the same manner and under the same cir4 cumstances as an action would be initiated against an5 other person. Any voluntary resolution or settlement of 

6 such an action shall be set forth in a consent order. 

7 ‘‘(g) CITIZEN SUITS.—(1) Except as provided in 

8 paragraph (3) or (4), any person may commence a civil 

9 action on the person’s own behalf against— 

10 ‘‘(A) a defense agency head who is alleged to be 

11 in violation of any permit, standard, regulation, con12 dition, requirement, prohibition, or order that has 

13 become effective pursuant to a Federal law covered 

14 by subsection (c); or 

15 ‘‘(B) the head of an administering Federal 

16 agency where there is alleged a failure of the head 

17 of the administering Federal agency to perform any 

18 act or duty under a Federal law covered by sub19 section (c) that is not discretionary. 

20 ‘‘(2) Any action under paragraph (1)(A) shall be 

21 brought in the district court for the district in which the 

22 alleged violation occurred. Any action brought under para23 graph (1)(B) may be brought in the district court for the 

24 district in which the alleged violation occurred or in the 

25 District Court of the District of Columbia. The district 


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1 court shall have jurisdiction, without regard to the amount 

2 in controversy or the citizenship of the parties— 

3 ‘‘(A) to enforce the permit, standard, regula4 tion, condition, requirement, prohibition, or order, 

5 referred to in paragraph (1)(A); 

6 ‘‘(B) to restrain a defendant from continuing a 

7 violation of a Federal law covered by subsection (c); 

8 ‘‘(C) to order the head of an administering 

9 Federal agency to perform the act or duty referred 

10 to in paragraph (1)(B); 

11 ‘‘(D) to order a defendant to take such other 

12 action as may be necessary; and 

13 ‘‘(E) to apply any appropriate civil penalties 

14 available under the Federal law at issue. 

15 ‘‘(3) No action may be commenced under paragraph 

16 (1)(A)— 

17 ‘‘(A) prior to 60 days after the plaintiff has 

18 given notice of the violation to— 

19 ‘‘(i) the head of the relevant administering 

20 Federal agency; 

21 ‘‘(ii) the State in which the alleged viola22 tion occurs; and 

23 ‘‘(iii) the defense agency head in violation 

24 of the permit, standard, regulation, condition, 

25 requirement, prohibition, or order at issue; or 


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1 ‘‘(B) if the head of the administering Federal 

2 agency or State has commenced and is diligently 

3 prosecuting a civil or criminal action in a court of 

4 the United States or a State to require compliance 

5 with such permit, standard, regulation, condition, re6 quirement, prohibition, or order. 

7 ‘‘(4) No action may be commenced under paragraph 

8 (1)(B) prior to 60 days after the plaintiff has given notice 

9 to the head of the relevant administering Federal agency 

10 that the plaintiff will commence such action. Notice under 

11 this subsection shall be given in such manner as the head 

12 of the administering Federal agency shall prescribe by reg13 ulation. 

14 ‘‘(5) In any action under this subsection, the head 

15 of the relevant administering Federal agency, if not a 

16 party, may intervene as a matter of right. 

17 ‘‘(6) The court, in issuing any final order in any ac18 tion brought pursuant to this subsection, may award costs 

19 of litigation (including reasonable attorney and expert wit20 ness fees) to the prevailing or substantially prevailing 

21 party, whenever the court determines such an award is 

22 appropriate. The court may, if a temporary restraining 

23 order or preliminary injunction is sought, require the filing 

24 of a bond or equivalent security in accordance with the 

25 Federal Rules of Civil Procedure. 


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1 ‘‘(7) Nothing in this subsection shall restrict any 

2 right that a person (or class of persons) may have under 

3 a Federal law covered by subsection (c) or common law 

4 to seek enforcement of that Federal law or to seek any 

5 other relief (including relief against the head of an admin6 istering Federal agency or a State agency). 

7 ‘‘(h) JUDICIAL INTERPRETATION.—The courts of the 

8 United States and of the States shall construe the provi9 sions of this section and any other provision of law waiving 

10 the sovereign immunity of the United States under a law 

11 covered by subsection (c) liberally to effect the intent of 

12 Congress that the United States, acting through a covered 

13 defense agency, comply with, and be subject to enforce14 ment under, those laws to the same extent as private par15 ties.’’. 

16 (b) CLERICAL AMENDMENT.—The table of sections 

17 at the beginning of such chapter is amended by adding 

18 at the end the following new item: 

‘‘2711. Applicability of environmental laws to the Department of Defense and 

defense-related agencies.’’. 

19 SEC. 4. APPLICABILITY OF NEPA TO WEAPON SYSTEM DE20 VELOPMENT AND PROCUREMENT. 

21 Section 2431 of title 10, United States Code, is 

22 amended by adding at the end the following new sub23 section: 


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1 ‘‘(d) In the case of each weapon system for which 

2 the Secretary of Defense is required to submit documents 

3 under subsection (a), the Secretary shall ensure that all 

4 development and procurement decisions regarding the 

5 weapon system are made in compliance with the National 

6 Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

7 seq.).’’. 

8 SEC. 5. REPEAL OF PROHIBITIONS ON USE OF DEFENSE 

9 FUNDS FOR ENVIRONMENTAL COMPLIANCE 

10 AND PAYMENT OF PENALTIES. 

11 (a) RESTORED AVAILABILITY OF RESTORATION AC12 COUNT.—Section 2703 of title 10, United States Code, is 

13 amended— 

14 (1) by striking subsection (f); and 

15 (2) by redesignating subsections (g) and (h) as 

16 subsections (f) and (g), respectively. 

17 (b) FORMERLY USED SITE REMEDIAL ACTION PRO18 GRAM.—Section 3131 of the National Defense Authoriza19 tion Act for Fiscal Year 2000 (10 U.S.C. 2701 note) is 

20 repealed. 

21 (c) CONFORMING REPEAL.—Section 8149 of the De22 partment of Defense Appropriations Act, 2000 (Public 

23 Law 106–79; 113 Stat. 1271), is repealed. 


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1 SEC. 6. SAVINGS PROVISION. 

2 Nothing in section 2711 of title 10, United States 

3 Code, as added by section 3 of this Act, or any other provi4 sion of this Act, may be construed as creating an inference 

5 that any provision of Federal law enacted before the date 

6 of the enactment of this Act that waived the sovereign im7 munity of the United States under a law of the United 

8 States or of any State was not fully effective and in force 

9 under its own terms before the date of the enactment of 

10 this Act. 

Æ 


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