Defense Cleanup and Environmental Programs: Authorization and Appropriations for FY2003

Congressional research reportJul 24, 2003

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Defense Cleanup and Environmental Programs:

Authorization and Appropriations for FY2003

Updated July 24, 2003

David M. Bearden

Environmental Policy Analyst

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Defense Cleanup and Environmental Programs:

Authorization and Appropriations for FY2003

Summary

The Department of Defense (DOD) administers five environmental programs

in response to various requirements under federal environmental laws. These

programs include environmental cleanup, environmental compliance, pollution

prevention, environmental technology, and conservation. Additionally, the

Department of Energy (DOE) is responsible for managing defense nuclear waste and

cleaning up contaminated nuclear weapons sites. Congress appropriated a total of

$11.07 billion for these programs for FY2003, approximately $100 million less than

the Administration’s request of $11.17 billion, but about $280 million more than the

FY2002 funding level of $10.79 billion. Some of the ongoing issues associated with

these programs are the adequacy, cost, and pace of cleanup, whether DOD and DOE

adequately comply with environmental laws and regulations, and the extent to which

environmental requirements encroach upon military readiness.

The 107th Congress completed consideration of legislation to authorize funding

for national defense programs for FY2003, including defense-related environmental

programs. The National Defense Authorization Act for FY2003 (P.L. 107-314, H.R.

4546) authorized $1.32 billion for environmental cleanup at current and former

military installations. It also authorized $565 million for base closure activities, most

of which was intended for environmental cleanup. As in past years, funding was

authorized for DOD’s other environmental activities as part of several larger

accounts. The law authorized a total of $6.76 billion for DOE’s defense nuclear

waste management and cleanup responsibilities. The final authorization also

included an interim exemption from the Migratory Bird Treaty Act for military

readiness activities, which DOD had requested as part of a Readiness and Range

Preservation Initiative (RRPI) to address the impacts of environmental requirements

on combat training needs. Portions of the RRPI that would have included targeted

exemptions from other environmental laws were not included in the final bill.

The 107th Congress also completed consideration of the FY2003 appropriations

bills for DOD and Military Construction, which fund DOD’s environmental

programs. The Department of Defense Appropriations Act for FY2003 (P.L. 107248, H.R. 5010) provided $1.31 billion for cleanup at current and former military

installations, slightly less than authorized. As in defense authorization legislation,

funding was provided for other environmental activities as part of several larger

accounts. The Military Construction Appropriations Act for FY2003 (P.L. 107-249,

H.R. 5011) provided $561 million for base closure activities, most of which was to

be used for cleanup, slightly less than authorized as well.

Debate over FY2003 appropriations for DOE’s management and cleanup of

defense nuclear waste was not completed during the 107th Congress. Final

appropriations for these activities were enacted early in the 108th Congress. The

Consolidated Appropriations Resolution for FY2003 (P.L. 108-7, H.J.Res. 2)

included an omnibus appropriations package that provided a total of $6.72 billion for

DOE’s defense nuclear waste management and cleanup responsibilities, slightly less

than authorized.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Oversight of Cleanup Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Overseas Military Installations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Compliance Requirements under Federal Law . . . . . . . . . . . . . . . . . . . 7

Funding Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fines for Violations of Environmental Requirements . . . . . . . . . . . . . . 7

Other Environmental Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Military Readiness Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Oversight of Cleanup and Waste Management Activities . . . . . . . . . . . . . . 12

Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Yucca Mountain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Formerly Utilized Sites Remedial Action Program . . . . . . . . . . . . . . . . . . . 16

Authorizing Legislation for FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Military Readiness Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Procurement Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Natural Resource Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Use and Disposal of Obsolete Naval Vessels . . . . . . . . . . . . . . . . . . . 21

Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appropriations for FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Military Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Energy and Water Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

List of Figures

Figure 1. Funding for Defense Cleanup and Environmental Programs:

FY1990 to FY2003 Enacted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Figure 2. Cleanup Status at Current, Former, and Closing Military Installations

in the United States as of September 30, 2002 . . . . . . . . . . . . . . . . . . . . . . . 5

Figure 3. Cleanup Status at DOE Nuclear Waste Management and

Environmental Restoration Sites as of September 30, 2002 . . . . . . . . . . . . 13

Figure 4. Cleanup Status under the Formerly Utilized Sites

Remedial Action Program as of June 2003 . . . . . . . . . . . . . . . . . . . . . . . . . 16

List of Tables

Table 1. Fines and Penalties Assessed and Paid for

Environmental Violations from FY1997 to FY2001 . . . . . . . . . . . . . . . . . . . 8

Defense Cleanup and Environmental

Programs: Authorization and

Appropriations for FY2003

Introduction

The Department of Defense (DOD) administers five environmental programs

that address the cleanup of past contamination on military installations, compliance

with environmental laws that apply to ongoing military operations, pollution

prevention, environmental cleanup and waste management technologies, and the

conservation of military lands. In addition to DOD’s environmental programs, the

Department of Energy (DOE) is responsible for managing defense nuclear waste, and

cleaning up contaminated nuclear weapons sites. The Environmental Protection

Agency (EPA) and the states provide oversight to enforce applicable laws. Some of

the ongoing issues are the adequacy, cost, and pace of cleanup, whether DOD and

DOE adequately comply with environmental laws, and the extent to which

environmental requirements restrict military readiness.

Congress authorizes defense-related environmental programs in the annual

authorization bill for National Defense, but it funds these programs under three

appropriations bills. Cleanup activities at currently active and former military

installations, environmental compliance, pollution prevention, environmental

technology, and conservation primarily receive funding in the annual appropriations

bill for the Department of Defense, but cleanup at base closure sites is funded in the

annual appropriations bill for Military Construction. DOE’s cleanup and

management of defense nuclear waste is funded in the annual appropriations bill for

Energy and Water Development.

For FY2003, Congress appropriated a total of $11.07 billion for all defenserelated environmental programs. This amount is approximately $100 million less

than the Administration’s request of $11.17 billion, but is about $280 million more

than the FY2002 funding level of $10.79 billion. FY2003 appropriations for DOD’s

environmental programs were enacted during the 107th Congress. However, debate

over FY2003 appropriations for DOE’s management and cleanup of defense nuclear

waste extended into the 108th Congress, and were provided as part of an omnibus

appropriations package under the Consolidated Appropriations Resolution for

FY2003 (P.L. 108-7, H.J.Res. 2). Figure 1 provides a funding history since FY1990.

This report provides background information on defense-related environmental

programs, analyzes various implementation issues, and examines final versions of

legislation to authorize and appropriate funding for FY2003 to support defenserelated environmental programs.

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Figure 1. Funding for Defense Cleanup and Environmental Programs:

FY1990 to FY2003 Enacted

Billions of Dollars

14.00

12.00

9.93

10.51

10.63

9.97

10.19

10.31

10.26

10.82

10.79

11.07

9.92

10.00

7.36

8.00

5.25

6.00

4.00

3.05

2.00

0.00

Environmental Technology

Pollution Prevention

Natural Resource Conservation

Base Closure Cleanup

Current and Former Site Cleanup

Environmental Compliance

Corps of Engineers FUSRAP

Department of Energy Cleanup

1990

n/a

0.60

0.79

n/a

1.66

1991

n/a

0.37

1.07

1.11

n/a

2.70

1992

n/a

0.62

1.13

1.93

n/a

3.68

1993

0.43

0.30

0.12

0.49

1.64

2.12

n/a

4.83

1994

0.41

0.34

0.10

0.54

1.97

1.98

n/a

5.17

1995

0.28

0.29

0.15

0.64

1.48

2.04

n/a

5.09

1996

0.22

0.25

0.11

0.85

1.41

2.23

n/a

5.56

1997

0.21

0.26

0.09

0.68

1.31

2.02

n/a

5.62

1998

0.21

0.26

0.14

0.83

1.30

1.91

0.14

5.52

1999

0.26

0.23

0.13

0.76

1.27

1.89

0.14

5.58

2000

0.29

0.28

0.16

0.36

1.30

1.66

0.15

5.72

2001

0.29

0.21

0.18

0.79

1.31

1.63

0.14

6.27

2002

0.23

0.16

0.61

1.27

1.67

0.14

6.48

Prepared by the Congressional Research Service using data from enacted appropriations, Operation and Maintenance Overviews of the

Department of Defense, and congressional budget justifications of the Department of Energy. N/A = account or program not yet established.

FUSRAP = Formerly Utilized Sites Remedial Action Program.

2003

0.23

0.22

0.16

0.54

1.31

1.75

0.14

6.72

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Department of Defense

DOD administers five environmental programs to comply with various federal

environmental laws.1 In terms of funding, the two largest programs focus on cleaning

up past contamination and on complying with environmental laws and regulations

that apply to ongoing operations. Three other programs have smaller budgets. They

focus on pollution prevention, environmental technology, and conservation. For

FY2003, Congress appropriated a total of $4.20 billion for all five of DOD’s

environmental programs, about $90 million more than the Administration’s request

of $4.11 billion, and about $45 million more than the FY2002 funding level of nearly

$4.16 billion. (Refer to page 17 for a discussion of authorizing legislation and

appropriations for FY2003.) Background information on each program and an

analysis of major implementation issues are discussed below.

Environmental Cleanup

In 1975, DOD established an Installation Restoration Program to investigate and

clean up sites on military lands where past waste management practices had led to

environmental contamination. A few years later, the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA) created the

Superfund program to clean up hazardous waste sites that pose the greatest risk to

public health and the environment in the United States, and it created the National

Priorities List (NPL) to track them.2 The law also established a formal framework

for the identification, investigation, and cleanup of hazardous substances. Initially,

the extent to which DOD had to comply with these requirements was unclear.

However, the Superfund Amendments and Reauthorization Act of 1986 (SARA)

specified that DOD and all other federal agencies are subject to CERCLA’s

requirements for identifying, evaluating, and cleaning up NPL sites under their

jurisdiction.3 The Resource Conservation and Recovery Act (RCRA) also requires

DOD and all other federal agencies to perform corrective actions to clean up

contamination at sites with active hazardous waste management or solid waste

disposal facilities operating with permits issued under RCRA.4

In addition to specifying the applicability of CERCLA, SARA expanded the

Installation Restoration Program, and renamed it the Defense Environmental

Restoration Program, to centralize DOD’s efforts in cleaning up hazardous waste

sites at domestic military installations where past actions led to contamination.5 As

a complement to this program, DOD established a Military Munitions Response

Program to fulfill requirements under Sections 311 and 312 of the National Defense

Authorization Act for FY2002 (P.L. 107-107) to identify, investigate, and clean up

For additional information on each program, refer to the Defense Environmental Network

and Information Exchange (DENIX) web site at [http://www.denix.osd.mil].

42 U.S.C. 9601 et. seq.

42 U.S.C. 9620

42 U.S.C. 6901 et seq.

10 U.S.C. 2701

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unexploded ordnance (UXO) and other munitions at nonoperational training ranges

in the United States. This program is in its initial stage, and only a portion of

contaminated sites have been identified thus far. As DOD continues to identify

additional sites and investigate the extent of contamination, more information will

be available on the actions and costs that will be necessary to address the safety and

environmental hazards presented by UXO. The following sections explain the role

of EPA and the states in conducting oversight of DOD’s cleanup activities, indicate

cleanup status and costs, explain appropriations account structure, and discuss

cleanup efforts at overseas military installations.

Oversight of Cleanup Activities. While DOD is responsible for funding

and conducting cleanup actions at its sites, EPA and the states conduct oversight of

these actions to determine whether DOD complies with the law. Generally, EPA

takes the lead in performing oversight of DOD sites being cleaned up under

CERCLA, and EPA delegates federal authority to the states for conducting oversight

of corrective actions taken under RCRA. However, cleanup requirements under

CERCLA and RCRA apply only within the United States. The cleanup of

contamination at overseas military installations is subject to requirements specified

within the Status of Forces Agreement with each host nation. These requirements are

generally not as strict as CERCLA and RCRA, and their stringency varies widely

from country to country. Unlike domestic cleanup actions, EPA does not have the

authority to conduct oversight at military installations abroad. Rather, overseeing

DOD’s actions to ensure that the requirements of a Status of Forces Agreement are

met is the responsibility of each host nation.

Cleanup Status and Costs. Until FY1994, DOD primarily concentrated its

cleanup efforts on identifying and investigating contaminated sites to determine the

level of remediation that would be necessary to protect human health and the

environment. As the majority of sites were identified and subsequent investigations

were completed, DOD began to focus the bulk of its efforts on actual cleanup. In

FY1996, DOD also developed specific cleanup goals to prioritize its sites, based on

threats of exposure. As indicated in Figure 2, DOD had identified a total of 29,696

contaminated sites as of the end of FY2002.6 As of that time, DOD had completed

cleanup at 20,491 of those sites (69% of total sites) at a cost of $20.2 billion, and

reported that almost $30.2 billion would be necessary to finish cleanup at the

remaining 9,205 sites (31% of total sites) from FY2003 to site completion.

Even though less than 1/3 of contaminated sites are still in need of cleanup, the

above estimates of future cleanup costs are substantially higher than has already been

spent due to the severity of contamination at these remaining sites and the resources

that likely will be necessary to address UXO contamination. DOD expects that

estimates of funding needs will likely increase in future years as additional sites with

UXO contamination are identified and the extent of such contamination is

determined. Funding needs for cleanup also may rise in future years as additional

military bases are selected for closure. The National Defense Authorization Act for

FY2002 (P.L. 107-107) authorized a new round of military base closings in 2005.

Department of Defense. Defense Environmental Restoration Program Annual Report to

Congress for FY2002. April 2003. p. B-6-1, p. C-5-1.

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The amount of funding that would be necessary to accelerate cleanup at new base

closure sites, and transfer them to other uses, would depend on the type and extent

of contamination present at such installations. Costs to accelerate cleanup could be

high if the bases selected for closure contain some of the more severely contaminated

sites that are on the NPL and are subject to cleanup under CERCLA.

Figure 2. Cleanup Status at Current, Former, and Closing Military

Installations in the United States as of September 30, 2002

Total Number of Sites = 29,696

Response in Progress

9,205 Sites

31.0%

Response Complete

20,491 Sites

69.0%

Prepared by the Congressional Research Service using data from the Department of Defense,

FY2002 Defense Environmental Restoration Program Annual Report to Congress,

April 2003, p. B-6-1, p. C-5-1.

Appropriations Account Structure. Cleanup costs at domestic military

sites are funded by several centralized accounts structured by category of installation.

Funding for cleanup at current and former military installations is authorized under

five Defense Environmental Restoration Accounts in the annual authorization bill for

National Defense, and is appropriated to these accounts in the annual appropriations

bill for the Department of Defense. Three of these accounts reserve funding for the

Army, Navy, and Air Force. One devotes funding to a more general category of

Defense-Wide sites, and another is dedicated to cleaning up Formerly Used Defense

Sites (FUDS).7 Typically, FUDS are sites on properties that DOD owned or leased

Congress first appropriated funding to the Defense Environmental Restoration Account in

FY1984. Subsequently, the National Defense Authorization Act for FY1997 (P.L. 104-201)

divided the account into four subaccounts: Army, Navy, Air Force, and Defense-Wide.

Since then, Congress also has specified the amount of funding reserved for cleaning up

FUDS sites, and the National Defense Authorization Act for FY2001 (P.L. 106-398)

established a FUDS subaccount to conform with this budgetary practice.

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in the past and are now devoted to civilian uses. Many of the FUDS sites were used

during the World War II era and prior years.

The Department of Defense Appropriations Act for FY2003 (P.L. 107-248)

provided a total of $1.31 billion for all five Defense Environmental Restoration

Accounts, about $30 million more than the Administration’s request of $1.28 billion,

and nearly $40 million more the FY2002 funding level of $1.27 billion. The increase

in funding was reserved for improving the pace of cleanup at FUDS sites, which has

been criticized for proceeding more slowly than cleanup at currently active

installations. (Refer to page 22 for further discussion of P.L. 107-248.)

Cleanup at base closure sites is authorized separately under the Base

Realignment and Closure (BRAC) Account in the annual authorization bill for

National Defense. Appropriations for base closure activities are provided under the

BRAC account in the annual appropriations bill for Military Construction. Congress

authorized four rounds of base closures in 1988, 1991, 1993, and 1995, and

established a separate BRAC account for each round. These sites are separate from

former military properties, known as FUDS, which are discussed above. The

Military Construction Appropriations Act for FY2003 (P.L. 107-249) provided $561

million for the BRAC account, from which DOD allocated $540 million for cleanup

activities at base closure sites. This amount is about $69 million less than the

FY2002 cleanup allocation of $609 million. (Refer to page 23 for further discussion

of P.L. 107-249.)

Overseas Military Installations. As discussed above, there are several

centralized accounts to fund cleanup activities at domestic military installations.

However, there are no line-item accounts in the President’s annual budget

submission, or in annual defense authorization legislation or appropriations, to

conduct cleanup actions at overseas military installations. Rather, these projects are

funded on an installation-by-installation basis out of the general operational budget

for each foreign base, and DOD does not have the authority to transfer funding from

the cleanup accounts for domestic installations to address contamination abroad.

Further, DOD is not required to report to Congress on the status of cleanup actions

at overseas military installations, as the agency is required to do for domestic

facilities in its annual report on the Defense Environmental Restoration Program.

The only type of information that DOD is required to submit to Congress regarding

overseas cleanup is a statement of the amounts expended, and anticipated to be

expended, as part of its annual report to Congress on the Defense Environmental

Quality Program. The most recent version of this report indicated that DOD spent

a total of $19.6 million in FY2001 on overseas environmental cleanup. The report

also indicated that $13.1 million was available from appropriations in FY2002, and

that in FY2003, $18.2 million would be required for overseas cleanup obligations.8

Department of Defense. Defense Environmental Quality Program Annual Report to

Congress for FY2001. September 2002. p. 29.

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Environmental Compliance

DOD and all other federal agencies are required to comply with environmental

laws and regulations to the same extent as any other entity. Typically, environmental

compliance projects at military installations include routine operations such as

storing and disposing of solid and hazardous waste, upgrading and monitoring waste

water treatment plants, and testing and replacing underground storage tanks. The

following sections provide information on environmental compliance requirements

under federal law, examine funding trends for military compliance activities, and

indicate the amount of fines and penalties assessed against, and paid by, DOD for

environmental violations.

Compliance Requirements under Federal Law.

The federal

environmental statutes that most commonly apply to the military’s routine operations

include the Clean Air Act, Clean Water Act, Resource Conservation and Recovery

Act (RCRA), and Safe Drinking Water Act. The Federal Facility Compliance Act

of 1992 amended RCRA to clarify in detail that DOD and all other federal facilities

are subject to penalties, fines, permit fees, reviews of plans or studies, and inspection

and monitoring of facilities in connection with federal, state, interstate, or local solid

or hazardous waste regulatory programs.9 The Act also authorized and directed EPA

to take enforcement actions under RCRA against any federal agency to the same

extent that it would against any other entity. Although the Safe Drinking Water Act

includes similar language, other federal environmental laws do not include the same

clarification of compliance requirements.

Funding Trends. DOD did not begin to comprehensively track the amount

of funding spent on environmental compliance activities until FY1990. However,

there are no centralized accounts for these activities in annual defense authorization

legislation or appropriations bills, as there are for environmental cleanup activities.

Instead, funding for compliance primarily comes from the accounts for Operation and

Maintenance, Military Construction, and Procurement. DOD’s budget for

environmental compliance has ranged from $790 million in FY1990 to a high of

$2.23 billion in FY1996. For FY2003, DOD allocated $1.75 billion for compliance

activities from the available accounts identified above, about $80 million more than

the FY2002 funding level of $1.67 billion. In the FY2003 budget request, DOD had

indicated that an increase in funding for compliance would be allocated primarily to

meet environmental requirements for certain Air Force activities, and to implement

waste water and drinking water treatment projects at the Massachusetts Military

Reservation in Falmouth, Massachusetts. The safety of drinking water has been an

ongoing concern among communities surrounding the reservation, since groundwater

contamination was discovered in private and municipal drinking water wells.

Fines for Violations of Environmental Requirements. Although DOD

is required to comply with environmental laws and regulations, and has a dedicated

budget for such activities, the extent to which DOD fulfills these responsibilities has

been a longstanding issue. As explained above, federal environmental laws require

federal facilities to comply with all federal, state, interstate, and local environmental

42 U.S.C. 6961

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requirements, and such laws authorize EPA, the states, and local governments to

assess fines against DOD for violations. However, a fine is not always paid in the

same year that it is assessed, and in some cases, DOD does not make a cash payment

to satisfy a fine. Instead, DOD may agree to perform a Supplemental Environmental

Project (SEP) in lieu of a cash payment. Under such an agreement, DOD not only

corrects its actions to comply with the environmental requirement at hand, but also

performs an additional project that enhances environmental quality. Regulatory

agencies frequently prefer the performance of SEPs to cash payments due to the

environmental benefits reaped from such projects.

The National Defense Authorization Act for FY2000 required DOD to include

information on environmental fines in its annual report to Congress on the Defense

Environmental Quality Program.10 This information must include the amount of

fines assessed and paid during the fiscal year for which the report is submitted, as

well as the past four fiscal years. As indicated in Table 1, EPA, the states, and local

governments assessed $11.8 million in fines against DOD for environmental

violations from FY1997 to FY2001.11 During this same period, DOD paid $11.6

million in cash payments and SEPs as compensation for its violations.12

Table 1. Fines and Penalties Assessed and Paid for

Environmental Violations from FY1997 to FY2001

Fiscal Year

FY1997

FY1998

FY1999

FY2000

FY2001

Fines and Penalties Assessed

$2,627,828

$2,915,198

$982,224

$3,656,136

$1,638,688

Total

$11,820,074

Cash Paid and Cost of SEPs

$5,231,955

$157,920

$3,298,810

$156,100

$2,761,279

$11,606,064

Prepared by the Congressional Research Service with data from the Department of Defense.

Defense Environmental Quality Program Annual Report to Congress for FY2001.

September 2002. Appendix J. p. 19 and p. 23.

However, the total amount indicated above for assessed fines does not include

a penalty of $16 million that EPA raised against the U.S. Army in FY2000 for

violations of the Clean Air Act at Fort Wainwright in Alaska. The appropriateness

of the amount of the fine is currently in dispute, and it is the single largest penalty

that EPA has ever assessed against DOD for an environmental violation. EPA used

the criteria of “economic benefit of noncompliance” and “size-of-business” to

determine the amount of the fine, which are ordinarily applied to private businesses.

The Army argued that “because federal facilities receive their funds from

P.L. 106-65, Section 322.

Department of Defense. Defense Environmental Quality Program Annual Report to

Congress for FY2001. September 2002. Appendix J. p. 19.

Ibid., Appendix J. p. 23.

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appropriations and must spend the money for the purpose for which it was

appropriated, a federal facility cannot realize an economic benefit from noncompliance.”13 The Army also argued that the size-of-business criteria should not be

applied, since military facilities are not net assets in the traditional sense and could

not be used as a financial resource to pay a fine. On April 30, 2002, the presiding

EPA administrative law judge rejected the Army’s arguments, and ruled that EPA

could apply the criteria of economic benefit of noncompliance and size-of-business

to the Army. The Army requested that the Environmental Appeals Board review this

decision.

Other Environmental Programs

In addition to environmental cleanup and compliance, DOD administers three

other programs that focus on pollution prevention, environmental technology, and

conservation. The purpose of the pollution prevention program is to reduce or

eliminate solid or hazardous waste from being generated and prevent environmental

problems before they occur. The environmental technology program supports

research, development, testing, and demonstration of more efficient and less costly

methods to clean up and manage solid and hazardous waste. The conservation

program aims to protect the natural, historical, and cultural resources of the 25

million acres of public land that DOD administers, including the protection of

endangered species.

DOD began tracking the budget for these programs in FY1993. Although these

programs are an integral part of DOD’s environmental strategy, their funding is

significantly smaller than the programs for environmental cleanup and compliance.

Like compliance, there are no centralized accounts for pollution prevention,

environmental technology, or conservation in annual defense authorization legislation

or appropriations bills. Instead, DOD allocates funding for these activities primarily

from the accounts for Operation and Maintenance, Procurement, and Research and

Development.

From FY2003 appropriations for the above accounts, DOD allocated a relatively

small increase in funding for conservation, but slightly decreased its budget for

pollution prevention and environmental technology. For conservation, DOD

budgeted $160.3 million for FY2003, a $3.8 million increase above the FY2002

funding level of $156.5 million. The budget for pollution prevention declined by

$6.3 million from $226.1 million in FY2002 to $219.8 million in FY2003. For

environmental technology projects, DOD allocated $226.5 million for FY2003, a

$1.6 million decrease from the FY2002 budget of $228.1 million. While the overall

FY2003 budget for environmental technology declined slightly, DOD had indicated

in its FY2003 budget request that funding within the technology program would be

increased for developing new ways to detect and clean up UXO and other munitions.

The development of such technologies will likely be crucial in efforts to accurately

identify and assess contaminated sites under the new Military Munitions Response

Program, discussed earlier.

Ibid., Appendix K. p. 10.

CRS-10

Military Readiness Issues

A major issue associated with the implementation of DOD’s environmental

programs is the extent to which environmental requirements restrict military

readiness capabilities. While most federal environmental laws specify their

applicability to federal facilities, Congress included exemptions in several statutes

to ensure that military training needs would not be restricted to the extent that

national security would be compromised. 14 These exemptions provide the President

with the authority to suspend compliance requirements for actions at federal facilities

on a case-by-case basis. Such exemptions may be granted if doing so would be either

in the “paramount interest of the United States” or in the “interest of national

security”. Most of these exemptions are limited to one year, but can be renewed.

The Safe Drinking Water Act does not impose a time limit on exemptions from

compliance. Under the Endangered Species Act, a special committee “shall grant”

an exemption if the Secretary of Defense finds it necessary for national security. This

committee may place a time limit on an exemption, but it is not required to do so

under the law.

The adequacy of existing exemptions to meet national security needs has

become a controversial issue. DOD argues that existing exemptions are too onerous

and time-consuming to obtain on a case-by-case basis due to the vast number of

training exercises that it conducts on hundreds of military installations across the

country. DOD also argues that the time limitations placed upon most exemptions are

not compatible with many training activities, due to their ongoing or recurring nature.

Instead, DOD favors modifications to numerous environmental statutes that would

provide greater flexibility for conducting combat training and other readiness

activities without restriction or delay. However, some states and environmental

organizations have opposed such modifications and argue that existing exemptions

are sufficient to accommodate combat training needs.

The cumulative effect of environmental requirements on military readiness

capabilities is difficult to determine due to the lack of a system to comprehensively

track individual cases in which training has been restricted or compromised. The

General Accounting Office (GAO) has found that DOD’s readiness reports do not

indicate the extent to which environmental requirements restrict combat training

activities, and that such reports indicate a high level of readiness overall.15 However,

GAO noted individual instances of environmental encroachment at numerous

military installations, and in light of this fact, recommended that DOD’s reporting

Specific exemptions from compliance requirements for federal facilities are included in

the Clean Air Act [42 USC 7418(b)], Clean Water Act [33 USC 1323(a)], Comprehensive

Environmental Response, Compensation, and Liability Act [42 USC 9620(j)], Endangered

Species Act [16 USC 1536(j)], Noise Control Act [42 USC 4903], Resource Conservation

and Recovery Act [42 USC 6961(a)], and Safe Drinking Water Act [42 USC 300(j)(6)]. For

additional information, refer to CRS Report RS21217, Exemptions for Military Activities

in Federal Environmental Laws, by Robert Meltz.

General Accounting Office. Military Training: DOD Needs a Comprehensive Plan to

Manage Encroachment on Training Ranges. GAO-02-727T. May 2002. p. 2.

CRS-11

system be improved to more accurately identify any shortfalls in training that might

be attributed to restrictions imposed by environmental requirements.

Oversight hearings were held during the 107th Congress to examine the impact

of environmental requirements on military readiness, and this issue was debated in

legislation as well. The National Defense Authorization Act for FY2003 (P.L. 107314) included an interim exemption for military readiness activities from the

Migratory Bird Treaty Act. In addition to this exemption, the House had proposed

modifications to the Endangered Species Act, and a targeted exemption from the

Wilderness Act, which were not adopted in conference.

DOD had requested an exemption from the Migratory Bird Treaty Act as part

of a Readiness and Range Preservation Initiative (RRPI) submitted to Congress in

April 2002. DOD submitted its RRPI to Congress in response to concerns over the

perceived increase in training restrictions imposed by environmental requirements.

The initiative proposed targeted exemptions for military readiness activities from

certain requirements under five other statutes as well, including the Clean Air Act,

Comprehensive Environmental Response, Compensation, and Liability Act,

Endangered Species Act, Marine Mammal Protection Act, and Solid Waste Disposal

Act. DOD’s request for targeted exemptions from these five laws were not included

in the final FY2003 defense authorization bill. (Refer to page 17 for further

discussion of P.L. 107-314.)

DOD submitted its RRPI to Congress again in the spring of 2003, and it has

been subject to debate in FY2004 defense authorization legislation.16 Oversight of

the issue of environmental encroachment will likely continue in the future, as DOD

continues to balance military readiness needs with requirements to comply with

environmental laws.

Department of Energy

In the late 1980s, the United States ceased its production of radioactive

materials used in the construction of nuclear weapons due to military projections that

the nuclear weapons stockpile was sufficient to protect national security and respond

to future threats. However, environmental problems associated with producing and

storing these radioactive materials continue to pose a risk to human health and safety

today. Since the beginning of the U.S. atomic energy program, DOE and its

predecessors have been responsible for managing defense nuclear weapons and

related waste. In later years, DOE expanded its efforts to include the environmental

restoration of radioactive sites, and those with other hazardous contamination, to

ensure their safety for future uses. In 1989, the Bush Administration established an

Environmental Management Program within DOE to consolidate the agency’s efforts

For information on the debate of the RRPI in FY2004 defense authorization legislation,

refer to CRS Report RL31805, Authorization and Appropriations for FY2004: Defense, by

Amy Belasco and Stephen Daggett.

CRS-12

in cleaning up contamination from defense nuclear waste, as well as waste from

civilian nuclear energy research.17

The following sections discuss program oversight, cleanup status and costs,

appropriations, and related topics such as the selection of Yucca Mountain for an

underground nuclear waste repository, and the cleanup of smaller radioactive waste

sites that were transferred from DOE to the Army Corps of Engineers.

Oversight of Cleanup and Waste Management Activities

The Atomic Energy Act of 1954 is the primary authority governing the

management of defense nuclear waste. The law requires DOE to safely store,

process, transport, and dispose of radioactive and other hazardous waste resulting

from the production of defense nuclear materials.18 Waste disposal typically involves

cleanup actions, such as the decontamination of buildings and structures and the

removal of contaminated soil. DOE is also subject to requirements under various

federal environmental laws in carrying out its responsibilities under the Atomic

Energy Act. CERCLA and RCRA are the two main federal environmental statutes

that apply to cleanup activities at defense nuclear waste sites. CERCLA primarily

applies to cleanup actions at inactive waste sites which present the highest risk of

exposure and are listed on the NPL. RCRA requires DOE to clean up contamination

at sites with active solid and hazardous waste disposal facilities for which an

operating permit has been issued under RCRA. EPA and the states are responsible

for conducting oversight of DOE’s actions in order to determine compliance with

environmental laws and assess fines and penalties if violations occur. Generally,

EPA takes the lead in performing oversight of cleanup actions at DOE sites required

under CERCLA, and EPA delegates federal authority to the states for conducting

oversight of actions required under RCRA. DOE has completed compliance

agreements with EPA and the states for each of its cleanup and waste management

sites, which specify schedules and time frames for specific response actions.19

Cleanup Status and Costs

The pace and cost of cleanup at defense nuclear waste sites has been a longstanding issue. GAO has conducted numerous audits of DOE’s Environmental

Management Program, which in many cases have assessed cleanup schedules and

cost estimates as being overly optimistic. GAO’s assessment of DOE’s 1998 strategy

to accelerate cleanup concluded that cleanup schedules and estimates of funding

needs are sometimes inaccurate because they are based on project assumptions that

may change, such as the capacity to pack and ship vast quantities of waste for

disposal, cleanup levels that have yet to be finalized under regulatory agreements, the

For additional information, refer to DOE’s Web site at [http://www.em.doe.gov].

42 U.S.C. 2121

For information on each compliance agreement, refer to DOE’s Web site at

[http://www.em.doe.gov/compliance.html].

CRS-13

types of waste management and cleanup technologies that will be used, and the

exclusion of additional costly activities related to cleanup.20

Figure 3. Cleanup Status at DOE Nuclear Waste Management and

Environmental Restoration Sites as of September 30, 2002

Total Number of Sites = 114

Response in Progress

39 Sites

34.2%

Response Complete

75 Sites

65.8%

Prepared by the Congressional Research Service using data from the Department of Energy.

Office of Management, Budget, and Evaluation. FY2004 Congressional Budget Request.

February 2003. Volume 5. p. 36.

As indicated in Figure 3, above, DOE reports that there are 114 large

geographic sites where the past production of atomic materials used to construct

nuclear weapons led to severe contamination.21 These sites encompass a total land

area of over 2 million acres, which is equal to the States of Rhode Island and

Delaware combined. As of the end of FY2002, DOE reports that it had completed

all response actions at 75 sites, at a cost of over $60 billion, and that response actions

were underway at the remaining 39 sites.22 DOE expects to complete cleanup at two

additional sites by the end of FY2003. While response actions are complete at about

66% of total sites, these sites are relatively small and are among the least hazardous.

The sites where cleanup is underway contain some of the most severely contaminated

areas. DOE estimates that cleanup at the remaining 39 sites may take 70 years to

complete, and that total cleanup costs may range from $220 billion to $300 billion

if program reforms are not initiated, substantially higher than the estimate of $147

General Accounting Office. Nuclear Waste: DOE’s Accelerated Cleanup Strategy Has

Benefits But Faces Uncertainties. RCED-99-129. April 1999. 21 p.

Department of Energy. Office of Management, Budget, and Evaluation. FY2004

Congressional Budget Request. February 2003. Volume 5, p. 36.

Ibid. One of the remaining sites, the Waste Isolation Pilot Plant in New Mexico, is a

waste disposal facility rather than a cleanup site that requires response actions.

CRS-14

billion made in 1998.23 DOE contends that these costs could be reduced by $50

billion to $100 billion through the use of risk-based approaches to accelerate cleanup

schedules. However, DOE’s past implementation of risk-based approaches has been

criticized as ineffective, and questions have been raised as to how these goals would

be accomplished without weakening environmental standards.

Appropriations Account Structure

Congress authorizes funding for DOE’s defense environmental restoration and

waste management activities in the annual authorization bill for National Defense,

and appropriates funding for them in the annual appropriations bill for Energy and

Water Development. Congress has traditionally provided this funding under three

centralized accounts. First, the Defense Environmental Restoration and Waste

Management Account funds cleanup and waste management activities at nuclear

weapons sites where all response actions are projected to continue beyond 2006.

Second, the Defense Facilities Closure Projects Account supports cleanup and waste

management activities at sites where all response actions are scheduled to be

complete by the end of 2006. Third, the Defense Environmental Management

Privatization Account reserves funding for cleanup projects that have been completed

under “privatization” contracts.24

The Consolidated Appropriations Resolution for FY2003 (P.L. 108-7) provided

a total of $6.72 billion for all three of the above accounts (including the 0.65%

across-the-board rescission), approximately $240 million more than the FY2002

funding level of $6.48 billion. The Administration had requested $6.91 billion for

FY2003 to support DOE’s defense environmental restoration and waste management

activities.

Of the $6.72 billion that Congress appropriated for FY2003, about $5.43 billion

was reserved for the Defense Environmental Restoration and Waste Management

Account, $1.13 billion was set aside for the Defense Facilities Closure Projects

Account, and $157 million was allocated to the Defense Environmental Management

Privatization Account. Congress did not approve DOE’s request to establish an

Environmental Management Cleanup Reform Account that would focus on risk

reduction to improve program efficiency and reduce costs.

While there have been ongoing concerns in Congress regarding the pace and

cost of cleanup, some Members expressed concern about how the funding for the

Department of Energy. A Review of the Environmental Management Program. February

2002. p. ES-1.

Under privatization contracts, a private entity is responsible for financing the entire cost

of a cleanup project, and is not paid by DOE until the project is completed and performed

according to contractually specified requirements. This type of contract differs from the

traditional approach of paying a contractor a fixed amount upfront and offering additional

cash incentives to encourage the completion of a project within a certain time frame.

Privatization contracts have the potential to provide the contractor with a greater incentive

to control costs, work more efficiently, and finish a project successfully, since payment is

not rendered until performance is complete and the cleanup objective has been achieved.

CRS-15

proposed reform account would have been allocated among various sites. There also

were concerns regarding how the goals of accelerated cleanup and reduced costs

would be accomplished without compromising environmental protection. In

response to these concerns, Congress instead increased the Administration’s request

for the existing Defense Environmental Restoration and Waste Management Account

to honor letters of intent to accelerate cleanup that DOE had previously signed with

EPA and state regulators, the funding for which would be allocated according to

existing categories of sites. (For further discussion, refer to page 24.)

Yucca Mountain

A prominent issue related to DOE’s Environmental Management Program is the

perceived need for a long-term centralized repository for high-level defense nuclear

waste. While the Waste Isolation Pilot Plant in New Mexico serves as a centralized

repository for low-level and transuranic (plutonium-contaminated) defense nuclear

waste, high-level waste is currently stored at individual sites. Many interests have

argued that centrally storing high-level waste in a location that lacks a potential

pathway for immediate exposure would be safer and more secure from potential

terrorist threats. In response to such concerns, the Nuclear Waste Policy Act of 1982,

as amended in 1987, required DOE to study the suitability of Yucca Mountain in

Nevada for constructing an underground geological repository for high-level defense

nuclear waste, as well as civilian radioactive waste generated by nuclear power

plants. The federal government and the nuclear power industry contribute funding

to support the study and development of such a repository.

The State of Nevada has strongly opposed the selection of Yucca Mountain for

an underground repository due to numerous safety concerns, such as the possibility

of seismological disturbances and underground flooding, and the potential for

groundwater contamination over time. DOE contends that scientific evidence

indicates that the conditions at Yucca Mountain would likely be suitable for longterm underground waste storage and that efforts to study the site should continue.

Environmental organizations have opposed the development of a centralized

repository due to concerns over the safety of transporting high-level radioactive waste

across many states to one location and the potential for terrorist threats, along with

environmental concerns about the site that are similar to those of the State of Nevada.

Taking these concerns into consideration, President Bush recommended Yucca

Mountain for site selection on February 8, 2002. However, Nevada Governor Kenny

Guinn submitted a notice of disapproval to Congress on April 8, 2002, as permitted

under the Nuclear Waste Policy Act. The House passed a resolution (H.J.Res. 87)

on May 8, 2002, to overturn the “state veto”, and the Senate passed H.J.Res. 87 on

July 9, 2002. The President signed H.J.Res. 87 into law (P.L. 107-200) on July 23,

2002, clearing the way for DOE to proceed with its plans to prepare and submit a

license application to the Nuclear Regulatory Commission for the construction of a

nuclear waste repository at Yucca Mountain. DOE plans to submit a license

application in 2004, and expects to begin receiving waste shipments in 2010. Despite

congressional approval, opponents of the development of Yucca Mountain may

attempt to halt or delay the project through other avenues, including the

appropriations process, oversight of the Nuclear Regulatory Commission’s review

CRS-16

of the license application for the site, and litigation over numerous aspects of the site

characterization and development process.25

Formerly Utilized Sites Remedial Action Program

In addition to the federal facilities that are being cleaned up under DOE’s

Environmental Management Program, there are other smaller sites contaminated with

low-level radiation from the processing and storage of uranium and thorium ores

during the early years of the U.S. nuclear weapons program from the 1940s to the

1960s. The majority of these sites were owned and operated by private contractors,

and cleanup at these sites is performed under the Formerly Utilized Sites Remedial

Action Program (FUSRAP). The Atomic Energy Commission, DOE’s predecessor

agency, established the program in 1974 under authorities provided in the Atomic

Energy Act, and actual cleanup began in 1979. In response to concerns over the pace

and cost of cleanup, Congress included provisions in the Energy and Water

Development Appropriations Act for FY1998 (P.L. 105-62) to transfer the FUSRAP

program to the Army Corps of Engineers. This transfer was considered potentially

advantageous since the Corps had extensive experience in cleaning up hazardous

waste at former defense sites that were in operation during this same time period.

Figure 4. Cleanup Status under the Formerly Utilized Sites

Remedial Action Program as of June 2003

Total Number of Sites = 49

Response in Progress

24 Sites

49.0%

Response Complete

25 Sites

51.0%

Prepared by the Congressional Research Service using data from the U.S. Army Corps of

Engineers. Formerly Utilized Sites Remedial Action Program Update. June 2003. p. 2.

For further information on this issue, refer to CRS Issue Brief IB92059, Civilian Nuclear

Waste Disposal, by Mark Holt.

CRS-17

The Energy and Water Development Appropriations Act for FY1999 (P.L. 105245), requires the Corps to follow CERCLA’s requirements in cleaning up sites

under the program. DOE collaborates with the Corps to determine the eligibility of

new sites, since it must perform the historical research to ascertain whether such sites

were part of the early nuclear weapons program. Once all response actions at a site

are complete, the Corps is responsible for monitoring and maintaining cleanup

remedies for 2 years. After that time, the site is transferred back to DOE for

continuing any necessary monitoring and maintenance.

As indicated in Figure 4 above, the Corps reports that a total of 49 sites have

been identified with contamination requiring response actions. Cleanup is complete

at 25 of these sites, and is underway or planned at the remaining 24 sites.26 Before

FY1998, cleanup at these sites was funded out of available funds under DOE’s

Defense Environmental Restoration and Waste Management Account, and the prior

Atomic Energy Defense Activities Account. Since the creation of a dedicated

account for FUSRAP and transfer of the program to the Corps in FY1998, Congress

has provided approximately $140 million in annual funding. The Consolidated

Appropriations Resolution for FY2003 (P.L. 108-7) provided $144 million for the

FUSRAP program, about $3 million more than the Administration’s request of $141

million, and about $4 million more than the FY2002 funding level of $140 million.

Authorizing Legislation for FY2003

The second session of the 107th Congress completed consideration of legislation

to authorize funding for national defense programs in FY2003. This legislation, the

Bob Stump National Defense Authorization Act for FY2003 (P.L. 107-314, H.R.

4546) included authorization of funding for environmental programs administered

by DOD and for the management and cleanup of defense nuclear waste administered

by DOE. Major environmental provisions of this law are discussed below.

Department of Defense

P.L. 107-314 authorized specific funding levels for the cleanup of

environmental contamination at current, former, and closing military installations.

However, there are no line-item accounts for DOD’s other environmental activities,

including compliance, pollution prevention, environmental technology, and

conservation. Funding for these activities was authorized as part of the Operation

and Maintenance, Procurement, and Research and Developments Accounts. The law

also includes several other environmental provisions, which address military

readiness issues, natural resource conservation, procurement practices, and the use

and disposal of obsolete naval vessels.

Environmental Cleanup. Section 301 of P.L. 107-314 authorized a total of

$1.32 billion for environmental cleanup at current and former military installations.

U.S. Army Corps of Engineers. Formerly Utilized Sites Remedial Action Program

Update. June 2003. p. 2. For further information, refer to the Army Corps of Engineers

web site at [http://www.hq.usace.army.mil/cecw/fusrap].

CRS-18

This amount is approximately $40 million more than Administration’s FY2003

request of $1.28 billion and is about $50 million more than the FY2002 funding level

of $1.27 billion. The increase in authorization was devoted to the cleanup of FUDS

sites. The pace of cleanup at these sites has been an ongoing concern, since cleanup

activities have historically proceeded more slowly than at currently active

installations. Regarding the use of defense funds for cleanup, Section 313 requires

the Secretary of Defense to fund environmental cleanup projects only with

environmental restoration funds, and not as military construction projects.

Section 2404 authorized $565 million for base closure activities, which includes

the cleanup of environmental contamination at such sites. This amount is $20

million more than the Administration’s FY2003 request of $545 million, and is $68

million less than the enacted FY2002 appropriation of $633 million. The conference

report indicated that the increase in authorization above the request is only to be used

for environmental cleanup, rather than general activities related to closure. For the

sake of clarity, there also appears to be conflicting language in the conference report

regarding the amount authorized for base closure activities. Although report

language indicates an amount of $561 million, the law specified $565 million, which

would be the actual authorization since it is stipulated in statutory language.

In addition to comprehensive funding for cleanup at military facilities, Section

301 authorized the requested amount of $25 million for the Kaho’olawe Island

Conveyance, Remediation, and Environmental Restoration Trust Fund. DOD ceased

its use of Kaho’olawe Island as a training range in 1995, and subsequently returned

the land to the State of Hawaii. The trust fund provides support for environmental

cleanup and the removal of UXO and other munitions.

Related to the cleanup of UXO in general, Section 312 requires the Secretary

of Defense to establish a program manger who will serve as the single point of

contact for policy and budgeting issues involved in characterizing, remediating, and

managing UXO and other munitions at defense sites. The conferees also included

report language which directs DOD to submit a consolidated budget proposal for

each of the next four fiscal years on the amount of funding that would be necessary

to address the environmental impacts of UXO. As discussed earlier, DOD has

established a Military Munitions Response Program to address the cleanup of UXO.

DOD is in the process of identifying contaminated sites and estimating the amount

of funding that will be necessary for environmental restoration.

Military Readiness Issues.

The extent to which environmental

requirements restrict or delay military readiness activities was a significant issue in

the debate over H.R. 4546. As discussed earlier, DOD requested exemptions from,

or modifications to, several environmental statutes as part of a Readiness and Range

Preservation Initiative submitted to Congress in April 2002. DOD argued that certain

exemptions and modifications are needed to provide greater compliance flexibility,

in order to prevent environmental requirements from imposing restrictions on

military readiness capabilities. Some Members of Congress, certain states, and

numerous environmental organizations opposed the initiative and argued that existing

exemption authorities are adequate to protect training needs.

CRS-19

In passing H.R. 4546, the House approved an exemption from the Migratory

Bird Treaty Act and modifications to the Endangered Species Act, which were

requested as part of DOD’s proposed initiative. The House also approved a targeted

exemption from the Wilderness Act for military overflights on the Utah Test and

Training Range. The Senate did not propose any environmental exemptions in

passing its version of the bill. The conference committee on H.R. 4546 did not adopt

the provisions regarding the Endangered Species Act or the Wilderness Act, but did

approve a modified version of the exemption from the Migratory Bird Treaty Act,

which is contained in Section 315 of P.L. 107-314.27

Conflicts between military training needs and the protection of migratory birds

arose as a result of a federal court ruling, which indicated that the Navy had violated

the Migratory Bird Treaty Act by incidentally taking migratory birds without a permit

during training exercises in Guam. The Migratory Bird Treaty Act was established

to control the mass slaughter of migratory birds for commercial purposes and to

promote the sustainable management of such birds.28 The law authorizes the

Secretary of the Interior to regulate the taking of migratory birds, but current

regulations may only authorize permits for intentional takings for specific purposes,

such as hunting within designated seasons as well as numerous other activities.

To address the lack of permit authority for incidental takings and prevent

possible restrictions on training in the future, Section 315 of P.L. 107-314 requires

the Secretary of the Interior to “prescribe” regulations, within one year of enactment,

that would exempt military readiness activities from the protections under the

Migratory Bird Treaty Act. The conference report did not explain whether

“prescribe” means propose or finalize, however, it appears that “prescribe” means

final promulgation of the regulations, when the section is read as a whole. The law

defines readiness activities as all training and operations of the Armed Forces that are

related to combat, as well as the adequate and realistic testing of military equipment,

vehicles, weapons, and sensors for proper operation and suitability for combat use.

While the new regulations are being developed, the law grants an interim

exemption from the Migratory Bird Treaty Act in order to allow any potentially

affected training operations to proceed. During the interim period, the Secretary of

Defense is required to consult with the Secretary of the Interior to monitor, minimize,

and mitigate any adverse impacts on migratory birds, whenever practicable. Interim

exemption authority will expire when the new regulations become effective and all

litigation challenging them has been resolved. To restrict the amount of time during

which legal challenges could be raised, the law limits judicial review by a federal

court to 120 days from the date that the regulations are published.

Although P.L. 107-314 does not include modifications to the Endangered

Species Act, the conference report on H.R. 4546 expressed concern that designating

additional critical habitat areas on training ranges could adversely affect military

For a legal analysis, refer to CRS Report RL31415, The Endangered Species Act,

Migratory Bird Treaty Act, and Department of Defense Readiness Activities: Current Law

and Legislative Proposals, by Pamela Baldwin.

16 U.S.C. 703 et. seq.

CRS-20

readiness capabilities. The House originally would have amended the Endangered

Species Act to prohibit the designation of new critical habitat areas on military

installations for which an Integrated Natural Resource Management Plan (INRMP)

has been approved under the Sikes Act, if the plan “addresses special management

considerations or protection”.29 The conferees expressed their support for the level

of cooperation between DOD and the Department of the Interior to prepare effective

INRMPs to protect threatened and endangered species, and indicated their concerns

about questions as to whether INRMPs provide sufficient protection to eliminate the

need for further critical habitat designations. The conferees encouraged the

Department of the Interior and DOD to cooperate in the management of natural and

cultural resources on military lands, and directed the Secretary of Defense to

recommend legislative proposals to accomplish these goals.

Procurement Practices. Various laws, regulations, and executive orders

require federal agencies to procure recycled or environmentally preferable items

whenever it is practical to do so. Section 314 requires the Secretary of Defense to

establish a tracking system to identify the extent to which the Defense Logistics

Agency procures items that are environmentally preferable or are made with

recovered materials. This provision also requires the Secretary of Defense to assess

the need for training and educating military personnel to ensure that they are aware

of any requirements, preferences, or goals for the procurement of environmentally

preferable items, or those made with recovered materials. Related to procurement,

Section 827 authorizes multi-year authority for procuring services related to the

cleanup of environmental contamination on military installations. Since, many types

of cleanup remedies are long-term actions, multi-year authority is often more

practical than annual authorizations.

Natural Resource Conservation. P.L. 107-314 includes two natural

resource conservation provisions that address the impacts of land development on

military installations. In many areas, wildlife populations have increased on military

lands as surrounding open spaces and habitat have diminished due to property

development. DOD argues that environmental requirements to protect endangered

and threatened species have risen as a consequence, and that such requirements have

placed limitations on the use of certain lands. To prevent further land development

and help ease the burden of habitat preservation on military lands, Section 2811

authorizes the Secretary of Defense to enter cooperative agreements with states and

private entities to acquire or obtain interest in nearby properties to preserve open

space and protect critical habitat. Such properties would serve as a buffer to help

eliminate or relieve restrictions on training, testing, or other operations, that might

otherwise be imposed if the availability of open space and wildlife habitat were

limited to military lands due to surrounding property development. To meet this

same objective, Section 2812 authorizes the Secretary of Defense to convey surplus

As amended in 1997, the Sikes Act (16 U.S.C. 670a) requires DOD to develop an INRMP

for each military installation in the United States, unless the Secretary of Defense

determines that the absence of significant natural resources on a particular installation

makes the preparation of such a plan inappropriate. The law requires DOD to cooperate

with the U.S. Fish and Wildlife Service and state fish and wildlife agencies in the

preparation of these plans to reach a mutual agreement on the conservation, protection, and

management of fish and wildlife resources.

CRS-21

property to state or local governments, or non-profit conservation organizations, to

preserve open space or natural resources in perpetuity.

Use and Disposal of Obsolete Naval Vessels. Section 3504 authorizes

financial assistance to states for preparing obsolete vessels from the National Defense

Reserve Fleet for use as artificial reefs. The law does not specify how much funding

is authorized, and the amount of assistance would depend on the availability of

appropriations. Eligible activities include removing hazardous materials from a

vessel, towing it to the target location, and sinking it. The amount of assistance

awarded to a state would depend on numerous factors, such as the cost-effectiveness

of “reefing” a vessel compared to other disposal options. No later than September

30, 2003, the Maritime Administration and EPA are required to jointly develop

environmental best management practices to serve as a national guideline for

preparing vessels as artificial reefs. In addition to the use of artificial reefs as a

disposal option, Section 3504 directs the Maritime Administration to carry out a pilot

program to explore alternatives for exporting obsolete naval vessels abroad to be

dismantled and recycled. The Maritime Administration already has the authority to

export vessels for these purposes, and the pilot program is intended to identify more

effective and safer practices for disposal abroad.

Department of Energy

Section 3101 authorized a total of $6.76 billion for DOE’s management of

defense nuclear waste and cleanup of contaminated nuclear weapons sites. The

authorization is about $150 million less than the Administration’s amended request

of $6.91 billion, and is approximately $280 million more than the FY2002

appropriation of $6.48 billion. Of the authorization of $6.76 billion, approximately

$4.51 billion was reserved for the Defense Environmental Restoration and Waste

Management Account, nearly $1.11 billion was allocated to the Defense Facilities

Closure Projects Account, and about $158 million was aside for the Defense

Environmental Management Privatization Account.

The remaining authorization of $982 million was devoted to a new Defense

Environmental Management Cleanup Reform Account.

This amount is

approximately $100 million less than the Administration’s amended request of $1.1

billion. However, Congress chose not appropriate any funding for this account in the

Energy and Water Development Appropriations Act for FY2003, as discussed on

page 24. As noted earlier, the Administration had requested funding for this account

to support a new initiative that would accelerate cleanup schedules and reduce costs.

Although there have been long-standing concerns over the pace and cost of cleanup

at defense nuclear waste sites, some Members of Congress criticized DOE for not

providing adequate information on how the goals of accelerated cleanup and lowered

costs would be achieved under this initiative. There also were concerns regarding

how these goals could be attained without weakening cleanup standards or other

environmental protections.

While Congress chose not to appropriate any funding for the newly authorized

account primarily due to the above concerns, appropriations were increased for the

existing Defense Environmental Restoration and Waste Management Account to

support efforts at sites where DOE had already signed letters of intent with EPA and

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state regulators to work toward the acceleration of cleanup. In distributing cleanup

acceleration funds among the sites, Section 3145 of P.L. 107-314 requires the

Secretary of Energy to submit a Performance Management Plan to Congress for each

affected site prior to the allocation of funds. Once allocated to a site, funds could not

be obligated or expended until 30 days after the Secretary of Energy submits to

Congress a description of the activities to be carried out under the Performance

Management Plan. To provide opportunities for additional oversight, Section 3179

requires the Secretary of Energy to submit a report to Congress on the progress of

activities to accelerate the reduction of environmental risks at defense nuclear waste

sites that have helped to increase the pace of cleanup and reduce costs. The law

directs the Secretary to submit this report along with DOE’s budget justification for

FY2004.

Appropriations for FY2003

In addition to authorizing funding for FY2003, the second session of the107th

Congress completed consideration of the two appropriations bills that fund DOD’s

environmental programs. The Department of Defense Appropriations Act for

FY2003 (P.L. 107-248, H.R. 5010) provided funding for environmental cleanup at

current and former military installations, as well as numerous other environmental

activities. The Military Construction Appropriations Act for FY2003 (P.L. 107-249,

H.R. 5011) provided funding for the cleanup of environmental contamination at

military base closure sites. The 107th Congress did not complete action on FY2003

appropriations for DOE’s management and cleanup of defense nuclear waste. Final

appropriations for these activities were enacted early in the 108th Congress under the

Consolidated Appropriations Resolution for FY2003 (P.L. 108-7, H.J.Res. 2).

Defense-related environmental provisions in each law are examined below.

Department of Defense

The Department of Defense Appropriations Act for FY2003 (P.L. 107-248, H.R.

5010) provided specific funding levels for environmental cleanup activities, but as

in defense authorization legislation, there are no comprehensive line-item accounts

for DOD’s other environmental activities, including compliance, pollution

prevention, conservation, and environmental technology. As discussed earlier, DOD

determined its FY2003 budget for these programs mostly from funds appropriated

to the accounts for Operation and Maintenance, Procurement, and Research and

Development.

P.L. 107-248 provided a total of $1.31 billion for the cleanup of environmental

contamination at current and former military installations, about $6 million less than

the enacted authorization of $1.32 billion, approximately $30 million more than the

Administration’s request of $1.28 billion, and nearly $40 million more than the

FY2002 funding level of $1.27 billion. The increase was to be devoted to increasing

the pace of cleanup at FUDS sites, which has been criticized for proceeding more

slowly than cleanup at currently active installations. The law provided an additional

$75 million to clean up unexploded ordnance on Kaho’olawe Island in Hawaii, $50

million more than the enacted authorization and the Administration’s request of $25

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million. The law provided another $10 million to mitigate the environmental impacts

of military activities on Indian lands, the same as the Administration requested.

On a cleanup-related matter, the law limits the use of “indefinite

delivery/indefinite quantity” contracts to no more than 35% of the total funding

obligated for environmental cleanup projects in FY2003. The law also includes

another environmental provision that prohibits the use of FY2003 funds to upgrade

the 939th Combat Search and Rescue Wing of the Air Force Reserve, until the

Secretary of the Air Force certifies to Congress that certain conditions are met.

Among these conditions are the requirement that any new aircraft assigned to the unit

must comply with local environmental and noise standards.

The law does not include two environmental provisions that were considered

during the debate over H.R. 5010. First, the law does not include the Senate

provision that would have provided up to $2.5 million to dispose of sediments at

inland sites from dredging operations at Earle Naval Station in New Jersey.

Sediments from dredging operations are typically disposed of in the ocean, due to the

comparatively high costs of inland disposal. Interest in inland disposal has been

rising due to concerns over the potentially adverse effects of ocean disposal on

coastal water quality. Second, the law does not include the House provision that

would have established a commission to assess the “adverse impacts” of

encroachment factors, including environmental requirements, on military training.

Military Construction

The Military Construction Appropriations Act for FY2003 (P.L. 107-249, H.R.

5011) allocated $561 million to the BRAC account for base realignment and closure

activities in the United States, $4 million less than the enacted authorization of $565

million, and about $72 million less than the FY2002 enacted appropriation of $633

million. The Administration had requested $545 million. Funding under this

account includes support for the cleanup of environmental contamination in order to

prepare these properties for transfer to other uses. Of the enacted appropriation of

$561 million, $20 million was reserved for a new Environmental Cleanup

Acceleration Initiative to address the backlog of environmental remediation

requirements that have not been met. The funding for the initiative was to be

allocated accordingly: $11 million to the Navy, $6 million to the Air Force, and $3

million to the Army.

As in FY2002, the law does not place a limitation on how much funding can be

spent on environmental cleanup. Prior to FY2002, Congress had traditionally placed

a limitation on environmental cleanup funding under the BRAC account. The

departure from this practice is intended to provide DOD with greater flexibility in

allocating funding for cleanup needs. For FY2003, DOD allocated $540 million for

environmental cleanup from the available appropriation of $561 million for the

BRAC account, which is about $69 million less than the amount of $609 million

allocated from the FY2002 BRAC appropriation of $633 million. Related to cleanup

funding, the law directs DOD to accurately reflect the anticipated costs of

environmental restoration, waste management, and compliance activities in future

budget requests for base closure activities. This provision was included to address

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the issue of funding needs for environmental activities that DOD had not adequately

identified in previous budget submissions.

In addition to specifying funding for base closure activities, the law includes a

provision which provides greater flexibility for the payment of environmental

cleanup costs associated with the upkeep of certain types of military housing. The

law limits the cost of maintaining and repairing general and flag officer quarters to

$35,000 per unit annually, unless Congress is notified 30 days in advance that costs

will exceed this amount. However, if the additional costs are solely for

environmental cleanup activities that could not be reasonably anticipated at the time

of the budget submission, the law authorizes DOD to notify Congress of the

additional costs “after-the-fact”. Providing an exception from early notification

requirements for unforseen environmental costs could help to ensure that cost

limitations do not prevent DOD from taking timely action to comply with

requirements to remove hazardous materials or reduce the threat of exposure.

Energy and Water Development

The Consolidated Appropriations Resolution for FY2003 (P.L. 108-7, H.J.Res.

2) provided a total of $6.72 billion for all three accounts that support DOE’s defense

nuclear waste management and cleanup activities (including the 0.65% across-theboard rescission). The FY2003 appropriation is approximately $4 million less than

the enacted authorization of $6.76 billion, $190 million less than the

Administration’s request of $6.91 billion, but $240 million more than the FY2002

funding level of $6.48 billion. Of the amount of $6.72 billion enacted for FY2003,

approximately $5.43 billion was allocated to the Defense Environmental Restoration

and Waste Management Account, $1.13 billion was set aside for the Defense

Facilities Closure Projects Account, and the remaining $157 million was reserved for

the Defense Environmental Management Privatization Account.

As discussed earlier, Congress did not appropriate any funding for DOE’s

proposed Environmental Management Cleanup Reform Account, which was

authorized in the National Defense Authorization Act for FY2003. Instead, Congress

increased funding for the existing Defense Environmental Restoration and Waste

Management Account by $926 million above the Administration’s request of $4.54

billion, in order to honor the letters of intent to accelerate cleanup that DOE had

already signed with EPA and state regulators. The increase was to be allocated

according to the existing structure of site categories within the account.

Many concerns were raised about the Administration’s cleanup reform initiative

during the FY2003 appropriations debate. DOE would have budgeted the majority

of the funding for the proposed account by decreasing support for cleanup at sites that

are funded under the Defense Environmental Restoration and Waste Management

Account. Under this approach, funding would have been restored at these sites only

if compliance agreements with EPA and the states were renegotiated to accelerate

cleanup schedules and project milestones.

DOE contends that many of the requirements under its existing compliance

agreements are too costly, ineffective, and unnecessarily time-consuming, and that

its agreements need to be re-examined to explore ways to increase the pace of

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cleanup and reduce costs. Questions were raised as to whether EPA and the states

might agree to weaker cleanup standards, rather than face the possibility of losing

funding that site managers need to fulfill existing agreements. While DOE signed

letters of intent with EPA and state regulators to accelerate cleanup at its major sites,

Performance Management Plans had not been developed for all sites to establish how

cleanup would be accelerated while ensuring that environmental protection is not

compromised.

Similar to provisions in the National Defense Authorization Act for FY2003,

Section 315 of P.L. 108-7 indicates that none of the funding for environmental

management activities may be obligated at individual sites that would be in excess

of the amount obligated in FY2002 or requested for FY2003, whichever is greater,

unless a Performance Management Plan has been completed for that site that is

consistent with the intent of DOE’s environmental management and cleanup reform

initiative.

In addition to funding for DOE, P.L. 108-7 also appropriated $144 million for

the FUSRAP program, administered by the Army Corps of Engineers. This amount

is $3 million more than the Administration’s request of $141 million, and is $4

million more than the FY2002 funding level of $140 million. As discussed earlier,

the FUSRAP program addresses low-level radioactive contamination at sites that

were primarily owned by private contractors who processed and stored uranium and

thorium ores during the early years of the U.S. nuclear weapons program.

Selected References

Department of Defense. Defense Environmental Quality Program Annual Report to

Congress for FY2001. September 2002.

Department of Defense. Defense Environmental Restoration Program Annual

Report to Congress for FY2002. April 2003.

Department of Defense. Operation and Maintenance Overview for FY2004. April

2003.

Department of Energy. A Review of the Environmental Management Program.

February 2002.

General Accounting Office. Waste Cleanup: Status and Implications of DOE’s

Compliance Agreements. GAO-02-567. May 2002.

General Accounting Office. Military Training: DOD Needs a Comprehensive Plan

to Manage Encroachment on Training Ranges. GAO-02-727T. May 2002

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.