Defense Cleanup and Environmental Programs: Authorization and Appropriations for FY2004
Congressional research reportJan 5, 2004
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Order Code RL32183
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2004
January 5, 2004
name redacted
Analyst in Environmental Policy
Resources, Science, and Industry Division
Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2004
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. In addition, the Department
of Energy (DOE) is responsible for managing defense nuclear waste and cleaning up
contaminated nuclear weapons sites. 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 National Defense Authorization Act for FY2004 (P.L. 108-136, H.R. 1588)
authorized $1.31 billion for cleanup at active military installations and Formerly
Used Defense Sites (FUDS), about $40 million more than requested. FUDS are
former military facilities that were decommissioned prior to the rounds of base
closings that began in 1988. An increase was authorized for speeding up the pace of
cleanup at these sites. The law also authorized $370 million for cleanup and other
activities at base closure sites, the same as requested. As in past years, the law
includes line-items for a few other environmental activities, but does not specify the
authorization for all of DOD’s other environmental programs. Rather, their funding
is authorized as part of several larger accounts. For DOE’s cleanup of defense
nuclear waste sites, the law authorized $6.81 billion, the same as requested. It also
includes numerous environmental provisions that affect military activities. Among
the most controversial are those that grant exemptions from certain requirements
under the Endangered Species Act and the Marine Mammal Protection Act, which
DOD requested under its Readiness and Range Preservation Initiative (RRPI).
In addition to the above authorization legislation, Congress has completed the
three appropriations bills that fund these activities in FY2004. The Department of
Defense Appropriations Act for FY2004 (P.L. 108-87, H.R. 2658) provided nearly
$1.35 billion for cleanup at active military installations and FUDS sites, $72 million
more than requested, and $32 million more than authorized, with the increase going
to FUDS sites. The Military Construction Appropriations Act for FY2004 (P.L. 108132, H.R. 2559) provided $370 million for cleanup and other activities at base
closure sites, the same as requested and authorized. The Energy and Water
Development Appropriations Act for FY2004 (P.L. 108-137, H.R. 2754) provided
$6.64 billion for DOE’s cleanup of defense nuclear waste sites, nearly $168 million
less than requested and authorized. The conferees indicated that funding was
decreased due to concern about DOE’s progress in working with EPA and the states
to implement its reform initiative to increase the pace of cleanup and lower costs.
This report provides background information on defense-related environmental
programs, analyzes key implementation issues, and examines final versions of
legislation to authorize and appropriate funding for these activities for FY2004. It
will be updated when DOD announces the funding allocations for all of its
environmental activities that did not receive a specific line-item appropriation.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Oversight of Cleanup Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Overseas Military Installations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Compliance Requirements under Federal Law . . . . . . . . . . . . . . . . . . . 9
Funding Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Fines for Violations of Environmental Requirements . . . . . . . . . . . . . . 9
Other Environmental Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Oversight of Cleanup and Waste Management Activities . . . . . . . . . . . . . . 11
Cleanup Status and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Bush Administration’s Cleanup Reform Initiative . . . . . . . . . . . . . . . . 13
Appropriations Account Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Yucca Mountain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Formerly Utilized Sites Remedial Action Program . . . . . . . . . . . . . . . . . . . 15
Authorizing Legislation for FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
DOD Cleanup and Other Environmental Activities . . . . . . . . . . . . . . . . . . 17
DOE Cleanup of Defense Nuclear Waste Sites . . . . . . . . . . . . . . . . . . . . . . 18
Military Readiness and Environmental Exemptions . . . . . . . . . . . . . . . . . . 18
Endangered Species Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Marine Mammal Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Appropriations for FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Military Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Energy and Water Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rescissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
List of Figures
Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 through FY2003 and FY2004 Administration Request . . . . . . . . . . 3
Figure 2. Cleanup Status at Current, Former, and Closing Military Installations
in the United States as of September 30, 2002 . . . . . . . . . . . . . . . . . . . . . . . 7
Figure 3. Cleanup Status at DOE Nuclear Waste Management and
Environmental Restoration Sites as of September 30, 2002 . . . . . . . . . . . . 12
Figure 4. Cleanup Status under the Formerly Utilized Sites Remedial
Action Program as of June 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
List of Tables
Table 1. Fines and Penalties Assessed and Paid for
Environmental Violations from FY1997 to FY2001 . . . . . . . . . . . . . . . . . . 10
Defense Cleanup and Environmental
Programs: Authorization and
Appropriations for FY2004
Introduction
In response to various requirements under federal environmental laws, the
Department of Defense (DOD) administers five programs to address environmental
and conservation needs on 25 million acres of land located on military installations.
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.1 The Environmental Protection Agency (EPA) and the states
oversee and enforce applicable laws. Some of the ongoing issues are the adequacy,
cost, and pace of efforts to clean up past contamination, whether DOD and DOE
adequately comply with environmental laws and regulations, and the extent to which
environmental requirements affect 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 active and former military installations,
environmental compliance, pollution prevention, environmental technology, and
conservation of natural and cultural resources primarily receive funding in the annual
appropriations bill for the Department of Defense. Cleanup at bases designated for
closure since 1988 is funded separately 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.
The first session of the 108th Congress enacted all of the above bills for
FY2004. As indicated in Figure 1, the Administration had requested of total of
$10.74 billion for all defense-related environmental activities. Collectively, the three
appropriations bills provided $8.50 billion for environmental cleanup at DOD and
DOE defense sites combined, of which $6.64 billion was allocated to DOE. As in
past years, the total amount of funding for DOD’s other environmental activities was
not specified, for which the Administration had requested $2.12 billion. DOD will
allocate funding for these activities from appropriations for the Operation and
Maintenance, Procurement, and Research and Development Accounts.
1
DOE, and its predecessor agencies, administered the production of the nation’s stockpile
of nuclear weapons. As required by the Atomic Energy Act of 1954 and federal
environmental laws, the Department is responsible for the management and disposal of
radioactive and other hazardous wastes generated from these activities, and for cleaning up
contamination in buildings, soil, and water.
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Figure 1. Funding for Defense Cleanup and Environmental Programs:
FY1990 through FY2003 and FY2004 Administration Request
Billions of Dollars
14.00
12.00
9.93
10.00
9.97
10.63
10.19
10.31
10.26
9.92
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
10.82
10.79
11.07
10.74
2001
0.29
0.21
0.18
0.79
1.31
1.63
0.14
6.27
2002
0.23
0.23
0.16
0.61
1.27
1.67
0.14
6.48
2003
0.23
0.22
0.16
0.54
1.31
1.75
0.14
6.72
2004
0.19
0.17
0.15
0.41
1.27
1.60
0.14
6.81
7.36
8.00
5.25
6.00
4.00
10.51
3.05
2.00
0.00
Environmental Technology
Pollution Prevention
Conservation
Base Closure Cleanup
Current and Former Site Cleanup
Environmental Compliance
Corps of Engineers FUSRAP
Department of Energy Cleanup
1990
n/a
n/a
n/a
n/a
0.60
0.79
n/a
1.66
1991
n/a
n/a
n/a
0.37
1.07
1.11
n/a
2.70
1992
n/a
n/a
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
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.
While the FY2004 defense appropriations bills include line-item accounts for a few environmental activities other than cleanup, they do not
specify the total amount of funding for all of DOD's other environmental programs, including environmental compliance, conservation,
pollution prevention, and environmental technology. DOD will allocate funding for these activities from the Operation and Maintenance,
Procurement, and Research and Development Accounts. This table will be updated to indicate final FY2004 funding levels when these
allocations are announced in DOD's Operation and Maintenance Overview for FY2005.
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Department of Defense
DOD administers five environmental programs to comply with various federal
environmental laws.2 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 of natural
and cultural resources. The Administration requested a total of $3.8 billion for these
activities for FY2004, about $400 million less than the FY2003 funding level of $4.2
billion. The requested decrease was primarily due to the completion of long-term
environmental compliance projects, fewer cleanup projects planned at base closure
sites, and the completion of numerous one-time projects that received congressionally
directed funds in FY2003. Background information on each of DOD’s
environmental programs and an analysis of key implementation issues are discussed
below. (Refer to page 15 for a discussion of authorized and appropriated funding
levels for FY2004, and provisions in authorizing legislation that provide exemptions
from certain requirements under the Endangered Species Act and the Marine
Mammal Protection Act.)
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.3 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.4 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.5
In addition to specifying the applicability of CERCLA, SARA expanded the
Installation Restoration Program, and renamed it the Defense Environmental
2
For additional information on each program, refer to the Defense Environmental Network
and Information Exchange (DENIX) website at [http://www.denix.osd.mil].
3
42 U.S.C. 9601 et. seq.
4
42 U.S.C. 9620
5
42 U.S.C. 6901 et seq.
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Restoration Program, to centralize DOD’s efforts in cleaning up hazardous waste
sites at domestic military installations where past actions led to contamination.6 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
unexploded ordnance (UXO) and other munitions at nonoperational training ranges
in the United States.
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.
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 in 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 FY2002.7 At 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.
6
7
10 U.S.C. 2701
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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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.
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 contamination by unexploded ordnance
(UXO). 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. The
amount of funding that would be necessary to accelerate cleanup at new base closure
sites in order to transfer them to other uses would depend on the type and extent of
contamination present at such installations.
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
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Sites (FUDS).8 Typically, FUDS are properties that DOD owned or leased 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.
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.
Overseas Military Installations. While there are several centralized
accounts to fund cleanup activities at domestic military installations, 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-byinstallation basis out of the general operational budget for each foreign base. DOD
does not have the authority to transfer funding from the cleanup accounts for
domestic installations to address contamination abroad.
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.9
8
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.
9
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 DOD for environmental
violations.
Compliance Requirements under Federal Law.
The federal
environmental statutes that most commonly apply to routine military 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.10 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 track the amount of funding spent
on environmental compliance activities until FY1990. 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 peaked at $2.23 billion in FY1996, but has since declined
as DOD reports that its pollution prevention efforts have reduced the generation of
waste, lessening the need for treatment and disposal and other compliance actions.
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
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
10
42 U.S.C. 6961
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agencies frequently prefer the performance of SEPs to cash payments due to the
environmental benefits such projects provide.
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.11 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 FY2001.12 During this same period, DOD paid $11.6
million in cash payments and SEPs as compensation for its violations.13
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.
Other Environmental Programs
In addition to environmental cleanup and compliance activities, 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, as a means to
eliminate potential 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 they
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
11
P.L. 106-65, Section 322.
12
Department of Defense. Defense Environmental Quality Program Annual Report to
Congress for FY2001. September 2002. Appendix J. p. 19.
13
Ibid., Appendix J. p. 23.
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technology, or conservation in annual defense authorization legislation or
appropriations bills. Instead, DOD allocates funding for these activities from the
Operation and Maintenance, Procurement, and Research and Development Accounts.
Department of Energy
In the late 1980s, the United States ceased its production 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 storing radioactive materials involved in the production of
nuclear weapons 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 in cleaning up
contamination from defense nuclear waste, as well as waste from civilian nuclear
energy research.14
The following sections discuss program oversight, cleanup status and costs,
appropriations account structure, 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
development of nuclear weapons and 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.15
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 that
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.
14
For additional information on the Environmental Management Program, refer to DOE’s
website at [http://www.em.doe.gov].
15
42 U.S.C. 2121
CRS-10
EPA and the states are responsible for conducting oversight of DOE’s actions
in order to determine compliance with environmental laws, and to 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 indicate legally enforceable schedules
and time frames for specific response actions.
Cleanup Status and Costs
As indicated in Figure 3, DOE reports that there are 114 large sites where the
past production of atomic materials used to construct nuclear weapons led to severe
contamination.16 These sites encompass over 2 million acres, a total area 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.17 DOE
expected to complete cleanup at two additional sites by the end of FY2003.
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.
16
Department of Energy. Office of Management, Budget, and Evaluation. FY2004
Congressional Budget Request. February 2003. Volume 5, p. 36.
17
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-11
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 billion made in 1998.18
The Bush Administration’s Cleanup Reform Initiative
The current Administration has been working on a cleanup reform initiative that
would accelerate cleanup and lower costs. DOE estimates that its initiative could
save between $50 billion and $100 billion in total cleanup costs over the long term,
and that the time frame for total site cleanup could be moved from 2070 to 2035.
These goals would be accomplished by assessing the risk of exposure to determine
which cleanup remedies are selected. Risk is currently one of many factors that DOE
uses to select cleanup remedies. Altering the current process to use risk as the
primary factor could result in decisions to contain waste on site as a means of
preventing exposure, rather than removing it. While containment can often be
accomplished more quickly and at less cost, the possibility of future exposure
remains if the method of containment fails over time. States and localities have
expressed concern over this approach.
The amount of time and money needed to clean up nuclear waste sites is a major
issue. However, questions have been raised as to how DOE would use a risk-based
approach to accomplish its goals of faster and less costly cleanups without weakening
environmental protection. Some have drawn attention to the possibility that basing
the selection of cleanup remedies on risk alone might result in more contamination
being left on site, rather being removed. Because of the substantial amount of time
often required for radioactive decay to occur, arguments have been raised that
contamination left in place may migrate in unexpected ways over the long term, and
result in pathways of exposure that could not have been predicted when the remedy
was originally selected. Others counter that completely removing radioactive
contamination from all sites to permit unrestricted future land use, and eliminate all
future pathways of exposure, would not be economically feasible, and in some cases
would be beyond the capabilities of current cleanup technologies.
DOE is in the early stages of implementing its cleanup reform initiative. The
specific measures that would be taken to speed the pace of cleanup and reduce costs
remain unclear. Thus far, DOE has completed “Performance Management Plans” to
accelerate cleanup at many of its sites. These plans outline goals to reduce the
amount of time required to complete individual projects, and they propose risk-based
initiatives to accomplish these goals. However, many of these initiatives would
entail cleanup actions that are different than those specified in existing compliance
agreements that DOE has previously negotiated with EPA and the states. Because
these agreements are legally binding, DOE would be required to renegotiate them to
18
Department of Energy. A Review of the Environmental Management Program. February
2002. p. ES-1.
CRS-12
the satisfaction of the other parties, prior to engaging in a cleanup action that would
differ from that agreed upon in the past.
If a proposed risk-based action were to result in more waste being left on site,
EPA or the states may be resistant to revising existing agreements that may be
perceived as offering a greater degree of environmental protection over the longterm. The successful renegotiation of the compliance agreement for each site will be
a critical factor in determining whether the Administration is able to implement its
proposed cleanup reforms. If mutual agreement is reached, funding for
implementation would be subject to congressional approval.
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. In recent years, Congress had provided this funding under three
centralized accounts. The Defense Environmental Restoration and Waste
Management Account had funded cleanup and waste management activities at
nuclear weapons sites where all response actions are projected to continue beyond
2006. The Defense Facilities Closure Projects Account had supported cleanup and
waste management activities at sites where all response actions are scheduled to be
complete by the end of 2006. The Defense Environmental Management Privatization
Account had funded cleanup projects that have been completed under “privatization”
contracts.19
Congress approved a new account structure for FY2004, which the
Administration requested as part of its cleanup reform initiative, discussed above.
There now are two new accounts that replace the previous three. The new Defense
Site Acceleration Completion Account provides funding for activities that are
directly involved in the cleanup of contaminated sites and the acceleration of site
completion. The new Defense Environmental Services Account funds activities that
indirectly support the mission of accelerated cleanup and closure, such as policy
development and coordination, and the integration of mission activities across the
complex of sites. While Congress approved the new account structure, less funding
was appropriated than requested, and numerous concerns were expressed about how
DOE is proceeding with its cleanup reform initiative.
19
Under a privatization contract, a private entity is responsible for financing the entire cost
of a cleanup project, and is not paid by the federal government 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 up front and
offering additional cash incentives to encourage the completion of a project within a certain
time frame. Privatization contracts generally have the potential to provide the contractor
with a greater incentive to control costs and work more efficiently, since payment is not
rendered until performance is complete and the cleanup objective has been achieved.
CRS-13
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 transuranic (plutonium-contaminated) defense nuclear waste, highlevel waste is currently stored at individual sites. The Nuclear Waste Policy Act of
1982, as amended in 1987, required DOE to study the suitability of Yucca Mountain
in Nevada for constructing a centralized underground geological repository for highlevel 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.
President Bush selected Yucca Mountain for the development of an
underground nuclear waste repository in February 2002. This action cleared 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 the facility. DOE plans to
submit a license application in 2004, and to begin receiving waste shipments in 2010.
However, controversy over the selection of Yucca Mountain is likely to continue, due
to significant opposition from the State of Nevada and environmental organizations.20
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. The majority of these
sites were owned and operated by private contractors from the 1940s to the 1960s.
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. The first
cleanup actions began in 1979. In response to concerns over the pace and cost of
20
For further information on this issue, refer to CRS Report RL33461, Civilian Nuclear
Waste Disposal, by (name redacted).
CRS-14
cleanup under DOE’s management, 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
former defense sites that were in operation during this same time period.
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 two years. After that time, the site is transferred back to DOE for
continuing any necessary monitoring and maintenance.
As indicated in Figure 4, 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.21 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.
21
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
website at [http://www.hq.usace.army.mil/cecw/fusrap].
CRS-15
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 theU.S. Army Corps of
Engineers. Formerly Utilized Sites Remedial Action Program Update. June 2003. p. 2.
Authorizing Legislation for FY2004
The House passed the conference agreement on the National Defense
Authorization Act for FY2004 (H.R. 1588, H.Rept. 108-354) on November 7, 2003,
and the Senate passed it on November 12, 2003. The President signed the bill into
law (P.L. 108-136) on November 24, 2003. The law authorizes funding for national
defense programs, including defense-related environmental activities administered
by DOD and DOE. It also includes provisions that address a variety of
environmental issues related to military activities. Among the most controversial of
these provisions are those that grant targeted exemptions from certain requirements
under the Endangered Species Act and the Marine Mammal Protection Act. Further
discussion is provided below.
DOD Cleanup and Other Environmental Activities
The law authorizes specific levels of funding for environmental cleanup at
DOD’s sites, but as in past years, it does not include line-item accounts for DOD’s
other environmental activities, including environmental compliance, conservation,
pollution prevention, and environmental technology. Funding for these activities is
authorized as part of the larger accounts for Operation and Maintenance,
Procurement, and Research and Development.
CRS-16
The law authorizes a total of $1.31 billion for the cleanup of past contamination
at active military installations and Formerly Used Defense Sites (FUDS), about $40
million more than requested. The increase would be dedicated to increasing the pace
of cleanup at FUDS sites. Cleanup at these sites has been criticized for proceeding
more slowly than at active installations. There has been interest among the states,
local communities, and environmental organizations in accelerating the cleanup in
order to ensure public safety. The law authorizes $370 million for environmental
cleanup and other activities at base closure sites, the same as requested.
DOE Cleanup of Defense Nuclear Waste Sites
For DOE, the law authorizes a total of $6.81 billion for the cleanup and
management of defense nuclear waste, the same as requested. The law authorizes
this funding under a new account structure that DOE had proposed. As discussed
earlier, DOE had requested that its prior accounts for defense cleanup activities be
replaced with two new accounts that would focus funding on efforts to accelerate
cleanup and lower costs. Of the total amount, $5.81 billion is authorized under the
Defense Site Acceleration Completion Account, and $995 million is authorized under
the Defense Environmental Services Account. The conferees expressed their overall
support for DOE’s cleanup reform initiative, and did not raise any concerns regarding
the use of risk-based approaches to speed the cleanup process and reduce costs.
Military Readiness and Environmental Exemptions
Among the most controversial issues in the authorization debate was the
adequacy of existing environmental exemptions to preserve military readiness
capabilities. In submitting its FY2004 defense authorization legislative proposal to
Congress, DOD proposed a Readiness and Range Preservation Initiative (RRPI) in
response to its stated concern that environmental requirements have increasingly
imposed restrictions on combat training exercises, a key component of military
readiness.22 The initiative proposed targeted exemptions for military readiness
activities from certain requirements under five federal environmental laws, including
the Clean Air Act, Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), Endangered Species Act, Marine Mammal Protection Act,
and Solid Waste Disposal Act.
While DOD provided some evidence of training restrictions at specific
installations, the Department did not provide comprehensive data to indicate the
extent to which environmental requirements have limited training opportunities and
compromised readiness capabilities overall. DOD’s request for additional exemption
authority without providing that information raised questions among some Members
of Congress, the states, and environmental organizations who expressed concern that
environmental protection might be compromised unnecessarily.
While most federal environmental laws specify their applicability to federal
facilities, Congress included exemptions in several major statutes to ensure that
22
The Administration’s legislative proposal and its justification is available at DOD’s
website: [https://www.denix.osd.mil/denix/Public/Library/Sustain/RRPI/rrpi.html].
CRS-17
military training needs would not be restricted to the extent that national security
would be compromised. 23 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.
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. In 2002,
the General Accounting Office (GAO) 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.24 However,
GAO noted individual instances of environmental restrictions at numerous military
installations, and in light of this fact, recommended that DOD’s reporting system be
improved to more accurately identify problems for training that might be attributed
to restrictions imposed by environmental requirements. A more recent GAO report
found that environmental restrictions are only one of several factors, including urban
growth, that affect DOD’s ability to carry out training activities, and that DOD
continues to be unable to measure the impact of encroachment on readiness.25
23
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 (name redacted).
24
General Accounting Office. Military Training: DOD Needs a Comprehensive Plan to
Manage Encroachment on Training Ranges. GAO-02-727T. May 2002.
25
General Accounting Office. Military Training: DOD Approach to Managing
Encroachment on Training Ranges Still Evolving. GAO-03-621T. April 2003.
CRS-18
DOD originally submitted its RRPI to Congress in 2002, requesting a broad
exemption from the Migratory Bird Treaty Act, in addition to targeted exemptions
from the five other federal environmental laws mentioned above. Congress provided
an interim exemption from the Migratory Bird Treaty Act in the National Defense
Authorization Act for FY2003 (P.L. 107-314), but did not approve exemptions from
the other statutes, which DOD had requested.26 In enacting P.L. 108-136, Congress
approved exemptions from certain requirements under the Endangered Species Act
and the Marine Mammal Protection Act after considerable debate. These exemptions
are similar to those DOD proposed. While the exemptions from the Marine Mammal
Protection Act apply specifically to military readiness activities (and to federal
scientific research), those that address the Endangered Species Act apply to military
lands in general and are not restricted in their applicability to training or other
readiness activities.
While Congress did not approve DOD’s proposed changes to the Clean Air Act,
CERCLA, or Solid Waste Disposal Act, it did require DOD to submit a report to
identify the extent to which these three statutes have affected military readiness.
Provisions in P.L. 108-136 that amend the Endangered Species Act and Marine
Mammal Protection Act are discussed below.27 Interest in the issue of whether
environmental requirements compromise military readiness will likely continue.
Endangered Species Act. Section 318 of P.L. 108-136 amends the
Endangered Species Act to allow military lands to be exempt from being designated
as critical habitat, if certain conditions are met. DOD stated that it requested this
exemption to clarify the statutory authority for the Fish and Wildlife Service’s past
practice of not designating critical habitat on military installations, if an Integrated
Natural Resources Management Plan (INRMP) providing acceptable species
protection is in place.28
This practice, which has been controversial, was introduced administratively
under the Clinton Administration to allow INRMPs to serve as a substitute for critical
habitat designation, when they were deemed to provide adequate protection. These
plans integrate the mission needs of a military installation with the management of
natural resources, including the protection of endangered and threatened species, but
26
Further discussion of this provision is provided in CRS Report RL31456, Defense
Cleanup and Environmental Programs: Authorization and Appropriations for FY2003, p.
18.
27
Further discussion of Endangered Species Act provisions is provided in CRS Report
RL31415, The Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and
Department of Defense (DOD) Readiness Activities: Background and Current Law.
28
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, on which “significant” natural resources
are present. DOD must prepare these plans “in cooperation with” the Fish and Wildlife
Service and state fish and wildlife agencies, to reach a “mutual agreement” on the
conservation, protection, and management of fish and wildlife resources. However, the law
also requires these plans to be consistent with the use of the military installation to ensure
the preparedness of the Armed Forces, and “as appropriate and applicable,” not to result in
the net loss of the installation’s capability to support its mission.
CRS-19
give the military mission primacy. Critical habitat, on the other hand, is designated
after considering several factors (which can include military readiness needs), and
requires consultation for any proposed federal action that might potentially harm a
species or its critical habitat.29 The Endangered Species Act contains minimum
requirements a federal action must meet to protect a species and its critical habitat,
beyond which the federal agency has flexibility in choosing alternatives.
From the standpoint of military readiness, DOD has argued that INRMPs are
more suitable for military installations than critical habitat designations, because they
provide greater flexibility to consider training needs when developing measures to
protect a species. DOD asked Congress to provide explicit statutory authority to
prevent legal challenges that could halt the Fish and Wildlife Service’s acceptance
of INRMPs in lieu of critical habitat designation, and possibly lead to greater
restrictions on the use of certain military lands.30 Environmental organizations
opposed the exemption, arguing that sufficient justification had not been provided
to warrant it, pointing out that DOD had cited few instances in which critical habitat
requirements had restricted critical training exercises. They also expressed concern
that INRMPs do not provide the same level of protection as critical habitat, because
these plans must subordinate the conservation needs of a species to the mission
objectives of a military installation.
The final language that Congress approved under Section 318(a) grants the
Secretary of the Interior the authority to exclude military lands from designation as
critical habitat, if the Secretary determines “in writing” that the INRMP for such
lands provides a “benefit” to the species for which critical habitat is proposed for
designation. However, DOD continues to be subject to all other protections provided
under the Endangered Species Act. Section 318(a) explicitly states that DOD must
continue to comply with consultation requirements and with prohibitions on the
taking (i.e. harassing, harming, pursuing, hunting, shooting, wounding, killing,
trapping, capturing, collecting, or attempting to do such activities) of endangered and
threatened species.31 On the other hand, by not designating critical habitat, DOD may
be exempt from consultation requirements for actions destroying or adversely
29
Section 7(a)(2) of the Endangered Species Act (16 U.S.C. 1536(a)(2)) requires federal
agencies, including DOD, to consult with the Secretary of the Interior or Secretary of
Commerce in order to ensure that agency activities would not likely “jeopardize the
continued existence of any endangered or threatened species or result in the destruction or
adverse modification of [critical] habitat.”
30
In January 2003, a U.S. District Court in Arizona struck down the Fish and Wildlife
Service’s interpretation of the Endangered Species Act that had eliminated designations
where other protections were provided. This ruling may have affected the analogous
practice of excluding military lands from designation. (Center for Biological Diversity v.
Gale Norton, Secretary of the Department of the Interior. 240 F. Supp. 2d 1090, (D.Az
2003).
31
Section 9 (16 U.S.C. 1538) prohibits the taking of an endangered or threatened species.
In Section 9, “take” is defined to include “harm”, which in turn is defined in federal
regulation to include “significant habitat modification or degradation” that “kills or injures
wildlife by significantly impairing essential behavioral patterns, including breeding, feeding,
or sheltering” (50 C.F.R. 17.3.).
CRS-20
modifying habitat that would otherwise be designated. This may happen whether or
not a species is present, possibly lowering the level of protection for habitat that in
some cases may be essential for the recovery of a species in the future.
Lastly, Section 318(b) amends Section 4 of the Endangered Species Act to
require the Secretary of the Interior or Secretary of Commerce to consider the
“impact on national security,” in addition to economic and other impacts, when
designating critical habitat. Prior to this amendment, Section 4 already required the
consideration of “any other relevant impacts.”32 The Fish and Wildlife Service has
used this authority in the past to exempt military lands from designation as critical
habitat, based on the impact that designation would have on an installation’s
functions.33 Opponents questioned whether amending Section 4 was necessary to
require the consideration of the impacts on national security, and consequently,
whether doing so would provide any added benefit to help preserve DOD’s readiness
capabilities.
Marine Mammal Protection Act. Section 319 of P.L. 108-136 makes three
changes to the Marine Mammal Protection Act. These changes include a modified
definition of “harassment” of marine mammals for certain activities, broad
exemption authority for actions that are necessary for “national defense,” and specific
direction that impacts on military readiness activities are to be considered in
reviewing permits for the incidental taking of marine mammals. DOD argued that
it needed these changes to prevent restrictions on critical training exercises and to
ensure the deployment of the Navy’s low-frequency active sonar system.34 However,
32
Section 4(b)(2) of the Endangered Species Act (16 U.S.C. 1533(b)(2)) specifies the factors
that are to be considered when designating critical habitat. It also authorizes the exclusion
of lands from designation if the benefits of exclusion outweigh the benefits of inclusion, and
if the exclusion of such lands would not result in the extinction of the species.
33
For example, in October 2002, the Fish and Wildlife Service excluded military lands on
Fort Hunter Liggett, located near King City, California, from designation of critical habitat
for the purple amole, based partly on the impacts that designation would have had on access
to certain lands for training exercises. (67 FR 65414)
34
The Navy’s low frequency active sonar system is designed to detect submarines over great
distances with the use of low frequency sound emitted at very high decibels. Environmental
organizations have opposed the use of this type of sonar, because they argue that the
generation of loud sounds traveling through expansive areas of the ocean could harm large
populations of marine mammals and other aquatic species. The Natural Resources Defense
Council and several other parties legally challenged the Navy’s deployment of its low
frequency sonar arguing that it violated the Marine Mammal Protection Act, the Endangered
Species Act, the National Environmental Policy Act, and the Administrative Procedure Act.
A U.S. District Court issued a preliminary injunction in October 2002 [NRDC v. Evans, 232
F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002)], ordering the Navy not to deploy its sonar system
until the parties reach an agreement on the areas in which it could be operated without
harming marine life. A final injunction has not been issued to date. Because the plaintiff’s
case is based on violations of multiple federal laws, it is unclear whether the exemption from
the Marine Mammal Protection Act provided in P.L. 108-136 will allow the Navy to resume
use of its low frequency sonar system.
CRS-21
these changes were opposed by those who argued that protections for marine
mammals would be weakened.
First, Section 319(a) modifies the definition of “harassment” under Section
3(18) of the Marine Mammal Protection Act, as it would expressly apply to military
readiness activities, as well as to scientific research activities conducted by or on
behalf of the federal government. Harassment of marine mammals is prohibited
under the Marine Mammal Protection Act and is among the key protections provided
in that statute. The new definition focuses on activities that are thought to be more
objectively assessable in terms of their biological impact. The new language defines
harassment as any action that “injures” or “has the significant potential to injure”
marine mammals, rather than any action that has the “potential to injure.”
The new language also defines harassment as any action that “disturbs” or “is
likely to disturb” a marine mammal by causing a “disruption of natural behavioral
patterns” to the extent that such patterns are “abandoned or significantly altered.”
The existing definition under Section 3(18), which would still be applicable to
activities other than military readiness or federal scientific research, includes actions
that have the “potential to disturb” marine mammals by causing a “disruption of
behavioral patterns.” However, it does not specify that the patterns must be “natural”
or result in the behavior being “abandoned or significantly altered” to be considered
harassment.
Environmental organizations generally opposed the modified definition of
harassment, arguing that it would raise the burden of proof that a military readiness
activity would affect a marine mammal, making it more difficult to protect them.
DOD countered that the new definition is needed to ensure that military readiness
activities are restricted only when scientific evidence demonstrates that such
protection is necessary.
Second, Section 319(b) grants the Secretary of Defense broad authority to
exempt actions from compliance with any requirement of the Marine Mammal
Protection Act for a period of up to two years, if such actions are necessary for
“national defense.” The Secretary of Defense is required to confer with the Secretary
of Commerce and the Secretary of the Interior prior to issuing an exemption, and
must notify the House and Senate Armed Services Committees within 30 days. An
exemption granted under this authority can be renewed for an additional two years,
and may be renewed every two years thereafter, indefinitely. However, the Secretary
of Defense must confer with the Secretary of Commerce and the Secretary of the
Interior before approving each renewal, and must notify the congressional
committees each time an exemption is renewed.
The conference report indicates that the exemption for “national defense”
parallels similar exemptions in other environmental laws. However, other statutes
provide exemptions for activities that are in the interest of “national security” or that
are in the “paramount interest of the United States.”35 Environmental organizations
35
Federal environmental laws that include environmental exemption authority for activities
(continued...)
CRS-22
contended that these terms present a higher threshold of proof to justify an
exemption. They argued that using the term “national defense” would, in effect,
provide broader exemption authority than is present in other statutes, if it were
interpreted to mean routine military operations rather than a specific activity critical
to security or other national needs. On numerous occasions, DOD has stated that it
has not used existing environmental exemption authority because the threshold is too
high to justify exemptions for most activities.
Third, Section 319(c) modifies how military readiness and testing activities are
to be considered during Department of the Interior or Department of Commerce
review of “incidental take” permits, which DOD may need to obtain for such
activities. The Marine Mammal Protection Act generally prohibits the taking (i.e.,
harassing, hunting, capturing, killing, or attempting to engage in such activities) of
marine mammals. However, the statute does allow the Secretary of the Interior or the
Secretary of Commerce to issue permits that allow the taking of marine mammals
under certain circumstances, if it is “incidental” to performing another lawful action
and would not adversely affect the “species” or “stock.”
When determining whether to issue a permit, the Secretary of the Interior or the
Secretary of Commerce must consider the “least practicable adverse impacts” of
incidental takings on marine mammals. Under the new requirements, the Secretary
of the Interior or the Secretary of Commerce also must consider impacts on the
“effectiveness of the military readiness activity,” in consultation with DOD, when
deciding whether to issue a permit. The new permitting requirements also exempt
DOD from complying with current standards for evaluating impact based on
“specified geographical regions,” or “small numbers” of marine mammals for its
readiness activities.
Appropriations for FY2004
In addition to authorizing funding, the first session of the 108th Congress has
completed consideration of the three appropriations bills that fund the defense-related
environmental activities administered by DOD and DOE. Congress increased
funding for cleanup at Formerly Used Defense Sites (FUDS), but appropriated the
same amount as requested for cleanup at active military installations and base closure
sites. Congress provided less funding than requested for DOE’s cleanup of defense
nuclear waste sites, due to concern about the agency’s progress in carrying out its
cleanup reform initiative. Final FY2004 appropriations for defense-related
environmental activities, and proposed rescissions that could reduce these
appropriations, are discussed below.
35
(...continued)
that are in the “paramount interest of the United States” include Clean Air Act [42 U.S.C.
7418(b)], Clean Water Act [33 U.S.C. 1323(a)], Noise Control Act [42 U.S.C. 4903],
Resource Conservation and Recovery Act [42 U.S.C. 6961(a)], and Safe Drinking Water Act
[42 U.S.C. 300j-6]. Those that use the term “national security”in relation to exemption
authority include Comprehensive Environmental Response, Compensation, and Liability Act
[42 U.S.C. 9620(j)] and Endangered Species Act [16 U.S.C. 1536(j)].
CRS-23
Department of Defense
The House passed the conference agreement on the Department of Defense
Appropriations Act for FY2004 (H.R. 2658, H.Rept. 108-283) on September 24,
2003, and the Senate passed it on September 25, 2003. The President signed the bill
into law (P.L. 108-87) on September 30, 2003. The law appropriated 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 environmental compliance, conservation,
pollution prevention, and environmental technology. As in past years, DOD will
allocate funding for these activities from funds appropriated to the accounts for
Operation and Maintenance, Procurement, and Research and Development. The final
funding allocations for these activities will be indicated in the Department’s
Operation and Maintenance Overview for FY2005, which is expected to be released
in the spring of 2004.
The law appropriated a total of $1.35 billion under the Defense Environmental
Restoration Accounts for the cleanup of past contamination at active military
installations and FUDS sites. The appropriation is $32 million more than authorized
and $72 million more than requested. The increase was devoted to accelerating the
pace of cleanup at FUDS sites. Regarding cleanup in general, 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 FY2004. Under this type of
contract, funds are awarded for an indefinite number of services for an indefinite
period of time. They are generally more suitable for complex cleanup projects
addressing extensive contamination that may present unforseen needs and require
more time to complete than originally estimated. There have been ongoing concerns
in Congress that the cost and scope of these contracts have become so large that they
are difficult to manage. In recent years, Congress has included provisions in DOD’s
appropriations bill to limit their use.
The law provided another $10 million for the mitigation of environmental
impacts resulting from military activities on Indian lands. Regarding specific Indian
lands, conference report language directs the Secretary of the Navy to submit a report
to Congress on the impact of naval aircraft live ordnance training on the lands of the
Walker River Tribe in Nevada. The Navy has established a training area on these
lands in support of the Fallon Naval Air Station. The Navy is directed to estimate the
fair market value of the land, and the costs necessary to clean up contamination
resulting from military training exercises.
In addition to the above funding, the law appropriated approximately $18
million for federal payment to 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.
Congress established the trust fund primarily to support the removal of unexploded
ordnance and the cleanup of munitions-related contamination, in order to allow safe
reuse of the land by state. The FY2003 funding level was $75 million. The
Administration had not planned any new activities at the site for FY2004, and
therefore had not requested an appropriation. The appropriation of $18 million
enacted for FY2004 originated in the Senate, but neither bill nor report language
CRS-24
commented on how the funding was to be used. Congress did not provide a specific
authorization for this appropriation in enacting the National Defense Authorization
Act for FY2004.
Military Construction
The House passed the conference agreement on the Military Construction
Appropriations Act for FY2004 (H.R. 2559, H.Rept. 108-342) on November 5, 2003,
and the Senate passed it on November 12, 2003. The President signed the bill into
law (P.L. 108-132) on November 22, 2003. The law appropriated approximately
$370 million for the Base Realignment and Closure Account, the same as authorized
and as requested. This account funds all activities at military bases that have been
designed for closure, including the cleanup of environmental contamination in order
to prepare these properties for transfer to other uses. While neither the law nor
conference report language specified how much of this funding would be reserved
for cleanup, DOD had planned a program level of $412 million for FY2004. The
amount of funds beyond that provided in the FY2004 appropriation to support this
program level would come from unobligated balances from prior years.
In addition to addressing cleanup at base closure sites, Section 125 of the law
provides greater flexibility for the payment of environmental cleanup costs associated
with the upkeep of certain types of military housing. A similar provision was
included in the FY2003 appropriations bill. The provision 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 “afterthe-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 House and Senate passed the conference agreement on the Energy and
Water Development Appropriations Act for FY2004 (H.R. 2754, H.Rept. 108-357)
on November 18, 2003. The President signed the bill into law (P.L. 108-137) on
December 1, 2003. The law appropriated a total of $6.64 billion for DOE’s cleanup
and management of defense nuclear waste, nearly $168 million less than authorized
and requested. The law also included a rescission of $15 million in unobligated
funds that were appropriated under the former Defense Environmental Management
Privatization Account in prior years.
The law provided the above funding for FY2004 under two new accounts. Of
the total appropriation, $5.65 billion was allocated to the Defense Site Acceleration
Completion Account, and $991 million was allocated to the Defense Environmental
Services Account. As discussed earlier, these two accounts were authorized in P.L.
108-87 at the request of DOE, as part of its cleanup reform initiative to speed cleanup
CRS-25
and lower costs. While the conferees expressed their overall support for this
initiative, they indicated that funding was reduced below the request and the
authorized amount, due to concern that DOE has not reached agreement with EPA
and the states on its plans to implement cleanup reforms at all of its sites.
The conference report also reiterated concerns expressed by the House and
Senate about inaccurate estimates of cleanup costs and scheduling of certain projects,
particularly the Hanford Waste Treatment and Immobilization Plant.36 DOE had
recently understated the estimated cost of this project by 33%. The House and Senate
had expressed concerns that this sharp increase may be an indicator that cost
estimates of cleanup acceleration projects at other sites also could be understated.
In response, the conference agreement directed DOE to transfer $2.5 million of its
Environmental Management funds to the Department’s Office of Management,
Budget, and Evaluation for increased oversight of accelerated cleanup projects. The
Senate had recommended $5 million for this purpose.
Another issue noted in the conference agreement is the possible need for
amendments to existing law to allow certain cleanup acceleration projects to proceed.
To examine this need, DOE is directed to prepare a report to Congress within 60 days
of enactment on potential statutory restrictions that may delay or prohibit cleanup
acceleration projects that are currently planned. The conference agreement also
directs DOE to submit a legislative proposal requesting these changes as part of the
Administration’s FY2005 budget submission to Congress.
The law appropriated another $47 million for a new Office of Legacy
Management to administer DOE’s long-term stewardship responsibilities, once
cleanup actions are complete. Of this amount, $19 million was allocated to defense
sites, and the remaining $28 million to non-defense sites. The new office will
consolidate DOE’s long-term stewardship activities that it previously conducted
under multiple program elements. The FY2004 appropriation is the same as
requested and is slightly more than the FY2003 funding level for these activities.
The primary function of the new office will be to continue DOE’s assessment of the
actions and funding that will be necessary to ensure that its planned cleanup remedies
continue to be effective in the future. These planning assumptions are based on a
time frame of 150 years. The House had raised questions about long-term
stewardship needs, and directed DOE to consider these needs when implementing
36
Hanford, located near Richland, Washington, is the largest of the original nuclear weapons
production sites in the United States. The site encompasses a large area of 586 square miles,
a portion of which borders the Columbia River. Substantial quantities of radioactive and
other hazardous wastes are present on the site, including over 50 million gallons of highlevel radioactive and chemical liquid wastes stored in 177 underground tanks. DOE reports
that 67 of these tanks are known or suspected to have leaked. Among the most pressing
cleanup issues is whether planned response actions will prevent this waste from migrating
into the Columbia River. If this were to occur, it could pose a threat to drinking water
supplies, agricultural irrigation, and fish and wildlife populations downstream in the states
of Washington and Oregon, depending on the concentration of contaminants. For further
background information and the status of cleanup activities at Hanford, refer to DOE’s
website at [http://www.hanford.gov].
CRS-26
accelerated cleanup plans “to ensure that long-term stewardship is not used as a
substitute for complete and effective site cleanup.”
As discussed earlier, some have expressed concern that DOE’s cleanup
acceleration strategy may result in more waste being left on site than would be
allowed under original cleanup agreements. If more waste were permitted to remain,
rather than being removed, the stewardship costs at such sites would likely rise as a
result of the need for additional measures to ensure that the waste continues to be
safely contained in future years to prevent exposure. In response to this issue, the
House report indicated that the Performance Management Plan for each cleanup site
should identify the resources that would be necessary for fulfilling DOE’s
responsibilities to manage the legacy of contained waste that is left behind after
cleanup response actions are complete.
In addition to cleanup at DOE’s defense sites, the law provided $140 million for
the Formerly Utilized Sites Remedial Action Program (FUSRAP), the same as
requested and about the same as enacted for FY2003. This program cleans up 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. As
discussed earlier, this program was administered by DOE as part of its cleanup of the
former defense nuclear weapons complex, but was transferred to the Army Corps of
Engineers in FY1998 due to congressional concern that DOE was proceeding too
slowly in addressing contamination at these sites.
Rescissions
As passed by the House, the conference agreement on the Consolidated
Appropriations Act for FY2004 (H.R. 2673, H.Rept. 108-401) includes a rescission
of DOD appropriations that could reduce the funding levels that have been enacted
for cleanup and other environmental activities at military installations.37 Section
168(a) of Division H of the conference agreement would rescind $1.8 billion in
FY2004 appropriations for DOD, and in unobligated balances from two prior year
defense appropriations acts. The bill would direct the Office of Management and
Budget (OMB) to consult with the House and Senate Appropriations Committees and
the Secretary of Defense, in order to determine the amounts that would be rescinded
from each account that would be reduced. At this time, it is uncertain whether this
rescission would affect the accounts that fund cleanup and other environmental
activities on military installations. The rescission would take effect no later than
September 30, 2004.
The conference agreement also would require an across-the-board rescission that
could reduce funding for DOE’s cleanup of defense nuclear waste sites. Section
168(b) of Division H would require an across-the-board rescission of 0.59% in all
appropriations for FY2004 that were not provided under the Department of Defense
Appropriations Act, the Military Construction Appropriations Act, or any
supplemental appropriations act. Section 168(c) would direct OMB to apply the
37
Further discussion of the proposed rescission is provided in CRS Report RS21684,
FY2004 Consolidated Appropriations Act: Reference Guide.
CRS-27
0.59% rescission proportionately to each discretionary account and to each activity
funded within each account. If enacted, this rescission could reduce the
appropriation of $6.64 billion for DOE’s cleanup of defense nuclear waste sites by
almost $40 million.
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.
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