I

107TH CONGRESS

1ST SESSION H. R. 2154

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

JUNE 13, 2001

Mr. FILNER (for himself, Ms. MCKINNEY, Ms. PELOSI, Ms. DEGETTE, and

Mr. LEWIS of Georgia) 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, Resources,

Education and the Workforce, and the Judiciary, 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
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and installations, such as children, members of the

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 de-
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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 ‘‘§ 2710. Applicability of environmental laws to the

21 Department of Defense and defense-re22 lated agencies

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

24 ‘‘(1) FEDERAL DEFENSE AGENCY.—The term

25 ‘Federal defense agency’ 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; 42 U.S.C. 7158 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) DEFENSE AGENCY HEAD.—The term ‘de18 fense agency head’ means—

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

20 to the Department of Defense and installations,

21 facilities, and operations of the Department of

22 Defense, whether located or conducted inside or

23 outside of the United States; and

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

25 covered by any of subparagraphs (B) through
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1 (E) of paragraph (1), with respect to that agen2 cy and installations, facilities, and operations of

3 that agency, whether located or conducted in4 side or outside of the United States.

5 ‘‘(3) ADMINISTERING FEDERAL AGENCY.—The

6 term ‘administering Federal agency’ means the Fed7 eral agency responsible for the administration or en8 forcement, or both, of a Federal law covered by sub9 section (c). In most cases that agency is the Envi10 ronmental Protection Agency.

11 ‘‘(4) STATES AND STATE LAW.—The term

12 ‘State’ includes any unit of local government within

13 a State, and the term ‘State law’ includes any local

14 law and any interstate compact or agreement.

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

16 The substantive and procedural requirements of each of

17 the laws covered by subsection (c) shall apply to each Fed18 eral defense agency in the same manner and to the same

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

20 the extent not provided before the date of the enactment

21 of the Military Environmental Responsibility Act in any

22 other provision of law, the United States hereby expressly

23 waives any immunity, and revokes any exemption, other24 wise applicable to a Federal defense agency with respect

25 to any such substantive or procedural requirement.
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1 ‘‘(c) COVERED LAWS.—The laws covered by this sub2 section are all Federal laws, including treaties and regula3 tions, and all State laws, that are designed to protect the

4 environment or designed to protect the health and safety

5 of the public. At a minimum, those laws include the fol6 lowing Federal laws and their analogous State counter7 parts:

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

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

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

11 seq.).

12 ‘‘(3) The Comprehensive Environmental Re13 sponse, Compensation, and Liability Act of 1980 (42

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

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

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

17 ‘‘(5) The Department of Energy Organization

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

19 ‘‘(6) The Emergency Planning and Community

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

21 seq.).

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

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

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

25 (33 U.S.C. 1251 et seq.).
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1 ‘‘(9) The Marine Mammal Protection Act of

2 1972 (16 U.S.C. 1361 et seq.).

3 ‘‘(10) The National Environmental Policy Act

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

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

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

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

8 (42 U.S.C. 10101 et seq.).

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

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

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

12 2701 et seq.).

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

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

15 seq.).

16 Notwithstanding the first sentence of this subsection, the

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

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

19 are not covered by this subsection, such laws containing

20 sovereign immunity waiver provisions that otherwise ap21 propriately provide for protection of the environment and

22 the health and safety of the public.

23 ‘‘(d) COVERED SUBSTANTIVE AND PROCEDURAL RE24 QUIREMENTS.—(1) The substantive and procedural re-
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1 quirements referred to in subsection (b) include the fol2 lowing:

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

4 prohibitions including all emission standards, tox5 icity standards, exposure standards, and use prohibi6 tions.

7 ‘‘(B) All administrative orders.

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

9 fines, regardless of whether such penalties or fines

10 are punitive or coercive in nature or are imposed for

11 isolated, intermittent, or continuing violations.

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

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

14 such sanctions as may be imposed by a court to en15 force such relief.

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

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

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

19 the processing and issuance of permits, renewal of per20 mits, amendments to permits, review of plans, studies, and

21 other documents, and inspection and monitoring of facili22 ties, as well as any other nondiscriminatory charges that

23 are assessed in connection with a Federal or State regu24 latory program under a law covered by subsection (c).
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1 ‘‘(3) Neither the United States, nor any agent, em2 ployee, or officer thereof, shall be immune or exempt from

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

4 respect to the enforcement of any such injunctive relief.

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

6 be personally liable for any civil penalty under any Federal

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

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

9 the agent, employee, or officer. An agent, employee, or of10 ficer of the United States shall be subject to any criminal

11 sanction (including any fine or imprisonment) under any

12 Federal or State law covered by subsection (c), but no de13 partment, agency, or instrumentality of the executive, leg14 islative, or judicial branch of the United States shall be

15 subject to any such sanction.

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

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

18 the head of the administering Federal agency to grant ex19 emptions from any substantive or procedural requirement

20 of that law, any use of that authority on behalf of a Fed21 eral defense agency after the date of the enactment of the

22 Military Environmental Responsibility Act shall be effec23 tive only for a specified period, not to exceed 180 days,

24 unless such period is specifically extended by Act of Con25 gress.
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1 ‘‘(f) ADMINISTRATIVE ENFORCEMENT ACTIONS.—

2 The head of an administering Federal agency shall com3 mence an administrative enforcement action against a de4 fense agency head pursuant to the enforcement authorities

5 contained in the relevant Federal law covered by sub6 section (c) in the same manner and under the same cir7 cumstances as an action would be initiated against an8 other person. Any voluntary resolution or settlement of

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

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

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

12 action on the person’s own behalf against—

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

14 in violation of any permit, standard, regulation, con15 dition, requirement, prohibition, or order that has

16 become effective pursuant to a Federal law covered

17 by subsection (c); or

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

19 agency where there is alleged a failure of the head

20 of the administering Federal agency to perform any

21 act or duty under a Federal law covered by sub22 section (c) that is not discretionary.

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

24 brought in the district court for the district in which the

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

2 district in which the alleged violation occurred or in the

3 District Court of the District of Columbia. The district

4 court shall have jurisdiction, without regard to the amount

5 in controversy or the citizenship of the parties—

6 ‘‘(A) to enforce the permit, standard, regula7 tion, condition, requirement, prohibition, or order,

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

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

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

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

12 Federal agency to perform the act or duty referred

13 to in paragraph (1)(B);

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

15 action as may be necessary; and

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

17 available under the Federal law at issue.

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

19 (1)(A)—

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

21 given notice of the violation to—

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

23 Federal agency;

24 ‘‘(ii) the State in which the alleged viola25 tion occurs; and
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1 ‘‘(iii) the defense agency head in violation

2 of the permit, standard, regulation, condition,

3 requirement, prohibition, or order at issue; or

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

5 agency or State has commenced and is diligently

6 prosecuting a civil or criminal action in a court of

7 the United States or a State to require compliance

8 with such permit, standard, regulation, condition, re9 quirement, prohibition, or order.

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

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

12 to the head of the relevant administering Federal agency

13 that the plaintiff will commence such action. Notice under

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

15 of the administering Federal agency shall prescribe by reg16 ulation.

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

18 of the relevant administering Federal agency, if not a

19 party, may intervene as a matter of right.

20 ‘‘(6) The court, in issuing any final order in any ac21 tion brought pursuant to this subsection, may award costs

22 of litigation (including reasonable attorney and expert wit23 ness fees) to the prevailing or substantially prevailing

24 party, whenever the court determines such an award is

25 appropriate. The court may, if a temporary restraining
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1 order or preliminary injunction is sought, require the filing

2 of a bond or equivalent security in accordance with the

3 Federal Rules of Civil Procedure.

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

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

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

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

8 other relief (including relief against the head of an admin9 istering Federal agency or a State agency).

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

11 United States and of the States shall construe the provi12 sions of this section and any other provision of law waiving

13 the sovereign immunity of the United States under a law

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

15 Congress that the United States, acting through a covered

16 defense agency, comply with, and be subject to enforce17 ment under, those laws to the same extent as private par18 ties.’’.

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

20 at the beginning of such chapter is amended by adding

21 at the end the following new item:

‘‘2710. Applicability of environmental laws to the Department of Defense and

defense-related agencies.’’.
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1 SEC. 4. APPLICABILITY OF NEPA TO WEAPON SYSTEM DE2 VELOPMENT AND PROCUREMENT.

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

4 amended by adding at the end the following new sub5 section:

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

7 the Secretary of Defense is required to submit documents

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

9 development and procurement decisions regarding the

10 weapon system are made in compliance with the National

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

12 seq.).’’.

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

14 FUNDS FOR ENVIRONMENTAL COMPLIANCE

15 AND PAYMENT OF PENALTIES.

16 (a) RESTORED AVAILABILITY OF RESTORATION AC17 COUNT.—Section 2703 of title 10, United States Code, is

18 amended—

19 (1) by striking subsection (e); and

20 (2) by redesignating subsection (f) as sub21 section (e).

22 (b) FORMERLY USED SITE REMEDIAL ACTION PRO23 GRAM.—Section 3131 of the National Defense Authoriza24 tion Act for Fiscal Year 2000 (10 U.S.C. 2701 note) is

25 repealed.
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1 (c) CONFORMING REPEAL.—Section 8149 of the De2 partment of Defense Appropriations Act, 2000 (Public

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

4 SEC. 6. SAVINGS PROVISION.

5 Nothing in section 2710 of title 10, United States

6 Code, as added by section 3 of this Act, or any other provi7 sion of this Act, may be construed as creating an inference

8 that any provision of Federal law enacted before the date

9 of the enactment of this Act that waived the sovereign im10 munity of the United States under a law of the United

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

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

13 this Act.

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