In Harm's Way: The Pentagon's Push to Protect Polluters at the Expense of Public Health

WASHINGTON, DC (April 21, 2004) - As part of the Bush administration's campaign to weaken environmental and health safeguards, the Department of Defense (DoD) -- the nation's biggest polluter -- has repeatedly sought sweeping exemptions from laws that protect the public from its hazardous waste and toxic releases. Last year Congress amended wildlife protection laws to accommodate military training, and this year the DoD is looking for exemptions from three other statutes that protect public health. Contrary to what the Pentagon claims, these exemptions are significant -- not just some minor tinkering.

Congress previously rejected the DoD's latest legislative proposal, the "Readiness and Range Preservation Initiative," which seeks major exemptions from the Clean Air Act, the Resource Conservation & Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, the Superfund law). Pentagon officials maintain that the laws regulating hazardous waste, toxic cleanup and air quality hinder troop training and military readiness, although they have yet to cite any instance in which this has occurred.

A decade ago, then-Secretary of Defense Dick Cheney was saying the exact opposite. During the Persian Gulf War, Cheney told an assembly of military planners and environmentalists, "Defense and the environment is not an either-or proposition. To choose between them is impossible in this real world of serious defense threats and genuine environmental concerns. The real choice is whether we are going to build a new environmental ethic into the daily business of defense."1

More than a decade later, and after yet another military victory against Iraq, the Pentagon's proposed legislation begs the question: Should national defense come at the expense of what our military is supposed to be defending? Conservationists would say that no government agency should be above the law -- especially those that protect America's air, water and public health.

Pentagon Shirking Its Duty

Exemptions from critical public health laws are not necessary to ensure the readiness of America's armed forces. Success stories abound to show how the military has found reasonable solutions and pursued training in compliance with public health and environmental laws. Moreover, the statutes now under fire already provide the flexibility needed to balance environmental protection and military readiness by allowing exemptions on a case-by-case basis in the interest of national security.

The Pentagon now wants to abandon its commitment to environmental stewardship even though it has yet to show that environmental laws hamper military readiness. The General Accounting Office (GAO) concluded that the DoD has failed to produce evidence showing that environmental laws or other "encroachments" have significantly affected military readiness.2 Moreover, Christie Todd Whitman, former administrator of the Environmental Protection Agency, testified before the Senate that her agency had "work[ed] very closely with the Department of Defense and I don't believe that there is a training mission anywhere in the county that is being held up or not taking place because of environmental protection regulation."3 According to state officials who met with Pentagon officials last December, "DoD acknowledged that there have not been any instances in which RCRA or CERCLA have impacted readiness, and specifically that no state has ever used its RCRA or state Superfund authority in a manner that impacted readiness."

It is also worth noting that the Pentagon's proposal contradicts the principle of the Federal Facilities Compliance Act -- passed nearly unanimously in 1992 -- by unnecessarily exempting the DoD from federal laws at the expense of public health.

If Congress grants these blanket exemptions, communities, states, tribes, and EPA would be stripped of virtually all authority to address toxic munitions, contamination. Moreover, millions of Americans would be needlessly exposed to harmful air pollution. It is no wonder that opposition to DoD's exemptions proposal from a broad range of groups remains strong.4

The following is a brief overview of the laws at risk from the Pentagon's latest proposal.

Resource Conservation and Recovery Act

The Resources Conservation and Recovery Act (RCRA), the nation's premier law for regulating hazardous wastes, established a cradle-to-grave management system designed to prevent toxic pollution and ensure that responsible parties clean up their waste. The DoD has a long history of flouting RCRA requirements. The number of EPA RCRA enforcement actions against DoD facilities outnumbers those for other agencies by a three-to-one margin. The Pentagon's proposal would undermine RCRA by:

• changing the definition of "solid waste" to exclude explosives, munitions, munitions fragments and other toxic material, including chemical weapons;

• allowing toxic substances to be left lying exposed on the range, where they could leach into groundwater, surface waters or the air;
• stripping states, tribes and EPA of any authority to address toxic munitions pollution under RCRA until the contamination has left DoD's self-defined range boundaries;
• blocking states, tribes and EPA from ever requiring investigation or cleanup under RCRA of the source of toxic munitions contamination inside 8,000 "operational" ranges -- comprising 25 million acres -- even if subsequent off-range contamination poses an immediate threat to public health.

Superfund Law (CERCLA)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) holds polluters responsible for the release of hazardous materials and requires them to pay the cost of cleaning up their pollution. The Superfund's cleanup provisions are triggered by the "release" of a toxic substance. The Pentagon's proposal would exempt the military from virtually all responsibility for toxic munitions contamination on its 25 million acres of "operational" ranges by:

• exempting from the term "release" any explosives, munitions, munitions fragments or other toxic material, including chemical weapons, unless the contamination leaves DoD's self-defined range boundaries;

• delaying action until contamination has spread beyond range boundaries, thereby adding years and potentially billions of dollars to clean up efforts, and limiting cleanup to only the contamination that has spread beyond range boundaries;
• stripping states and Native American tribes of any authority to require investigation or cleanup of the source of toxic munitions contamination on DoD's "operational" ranges under CERCLA;
• removing EPA's existing authority to address the source of toxic munitions contamination on DoD's "operational" ranges under the CERCLA cleanup process, and limiting the agency's authority to address this pollution on those ranges to one emergency provision of CERCLA that can only be exercised with approval by the Justice Department; and
• preventing state authorities from collecting damages from DoD when its contamination injures sensitive public resources, including wildlife, fisheries and recreational areas.

The DoD, the nation's biggest polluter, is now cleaning up 29,500 currently or formerly contaminated sites in every state and territory. California alone has 3,912 contaminated sites on 441 current and former DoD installations. Many of DoD's facilities have already contaminated groundwater sources of drinking water. For example, toxic munitions contamination from ranges at the Massachusetts Military Reservation on Cape Cod has entered the area's only drinking water aquifer, which serves half a million residents. The cost to clean up toxic munitions contamination and unexploded ordnance at active and former military installations around the country may reach $200 billion.5

Clean Air Act

The Clean Air Act prohibits federal agencies, including the DoD, from producing or allowing air pollution that would undermine any state's EPA-approved plan for attaining the national ambient air quality standards within its borders. The Pentagon's proposal would prolong the public's exposure to unhealthy levels of air pollution by:

• authorizing rolling, three-year exemptions for polluting military activities falling anywhere within a broad and vaguely-defined category;

• requiring EPA to approve a state's air pollution cleanup plan notwithstanding the plan's failure to compensate for the excess pollution produced by military activities;
• exempting states for failing to meet national ambient air quality standards by the statutory deadlines from the bump-up in nonattainment classification and remedial public health safeguards that such failures are supposed to trigger under the Clean Air Act.

The Clean Air Act already provides ample mechanisms for exempting DoD activities for national security purposes. Moreover, the DoD has failed to identify any instances in which its readiness is handicapped by the Clean Air Act. In 2002, two organizations representing state air pollution control administrators opposed DoD's proposed changes to federal air protections on the grounds that they would exclude routine non-emergency activities from basic environmental requirements.6

Protecting Polluters, Not People

The Bush administration would have Americans believe that opposing the Pentagon's efforts to roll back environmental protections here at home is disloyal to our troops. In fact, defending our health and defending our country are both essential priorities that are complementary, not contradictory.

The truth is, our military can continue to maintain its high level of readiness while maintaining existing protections for public health and the environment. And, when necessary, the laws the Pentagon wants to shirk already allow case-by-case exemptions.

"Whose interest is the Pentagon really serving by trying to get Congress to relieve the military of its duty to comply with federal health safeguards? Certainly not our troops, their families and the millions of other Americans who would be left living in contaminated communities", said Heather Taylor, NRDC's deputy legislative director.

Notes

1. "Pentagon takes first steps toward tackling pollution," Boston Globe, September 9, 1990.

2. See GAO, Military Training: DOD Lacks a Comprehensive Plan To Manage Encroachment on Training Ranges, GAO-02-614 (June 2, 2002). The GAO report further points out that each major branch of the armed forces -- Army, Navy, Air Force, Marines -- conducts training exercises separately and without collaboration, thereby unnecessarily duplicating costs and environmental impacts. In the case of Camp Pendleton in California, habitat conflicts could be minimized if the Marines would conduct their desert training at nearby Edwards Air Force Base.

3. See Whitman's testimony regarding DOD exemptions from environmental laws, U.S. Senate Environment & Public Works Committee Hearing, February 26, 2003.

4. The Environmental Council of States and the Association of State and Territorial Solid Waste Management Officials opposed exempting the DoD from RCRA and Superfund laws. The State and Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officers (ALAPCO) sent a letter opposing the CAA exemption. The National Association of Attorneys General (NAAG) has opposed exemptions for federal agencies in the past; last year 33 AG's sent a letter to Congress raising concerns that "statutory exemptions from environmental laws would have adverse impacts on human health and the environment." Also last year, NAAG, the National Governors' Association (NGA) and the National Conference of State Legislatures sent a letter complaining about not being able to testify at congressional hearings on the issue.

5. FY02 Defense Environmental Restoration Program Annual Report to Congress, p. 70.

6. The State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials.