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Witness Testimony
Mr. John C. Kunich
Current Environmental Issues Affecting the Readiness of the Department of Defense
Mr. Chairman, members of the Committee, thank you for this opportunity to testify. I am here in my individual, personal capacity, and not as an official representative of my university. As a Professor of Law at Roger Williams University School of Law in Rhode Island, I specialize in Environmental, Natural Resources, and Biodiversity Law. I have published several major law review articles dealing with various aspects of environmental law, and I wrote a book "Ark of the Broken Covenant: Protecting the World's Biodiversity Hotspots" published in 2003 by Praeger Publishers. Prior to entering academia in 1999, I served 20 years on active duty with the United States Air Force as a judge advocate, and I specialized in these same areas for the second half of my Air Force career. I was well suited to this specialty by virtue of my Bachelor of Science and Master of Science degrees in Biological Sciences, as well as my Juris Doctor degree from Harvard Law School and my Master of Laws degree in environmental law from George Washington University School of Law. During the 1990's, I was the chief environmental law attorney for Air Force Space Command, United States Space Command, and the North American Aerospace Defense Command, and I served as the Chief of the Environmental Compliance and Planning Branch of the Headquarters Air Force Environmental Law and Litigation Division. I had the responsibilities of balancing the Air Force's mission requirements with our legal duties under all applicable Federal, state, and international environmental and natural resources laws. I worked extensively in the Air Force's compliance programs regarding the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Air Act (CAA), the Endangered Species Act, and all other major federal environmental statutes. I also served as a litigator with the Headquarters Air Force General Litigation Division in Washington, D.C., from 1990 to 1992. In this capacity, I litigated numerous cases brought against the Air Force and its people, in both federal and state courts around the nation. These were mostly constitutional tort cases, but they involved the same jurisdictional issues as the environmental law cases I subsequently handled. During my two decades of military legal service, which included the first Gulf War, our intervention in Kosovo, and several major operations other than war, I never became aware of even one instance in which RCRA, CERCLA, or CAA posed an impediment to the military mission. The Air Force was able to comply with every provision of environmental law applicable to all American citizens and federal agencies, with no harmful effect on military readiness, training, or, indeed, on the actual successful conduct of wartime operations. The Air Force found a way to comply with all the mandates arising out of the key hazardous materials statutes and regulations. The military did not need to choose between environmental compliance and mission accomplishment. The two were not mutually exclusive in any respect. In fact, our military's record of success in both Gulf Wars, in Afghanistan, in Kosovo, and in many other large-scale missions does not reveal any deleterious effects attributable to the necessity of complying with generally applicable environmental laws. Within the Air Force, we may have occasionally grumbled among ourselves about how inconvenient it was that we had to abide by these environmental laws. Would we have preferred to be exempt? Of course. It required some time, money, and effort to obey the law. But it was our duty to obey it, just as it was our duty to obey our commanding officers in other aspects of our mission. It was part of our mission to do all that we did within the bounds established by law. The Air Force motto was "Aim high," not "By any means necessary." Unfortunately, the proposal now before this Committee would needlessly weaken important safeguards in three of our most vital federal environmental statutes, RCRA, CERCLA, and CAA. I will briefly explain. RCRA is the nation's premier law for regulating "hazardous wastes" and is meant to prevent toxic pollution and ensure that the parties responsible for hazardous wastes pay to clean them up. Military munitions contain heavy metals and other toxic substances that escape into the air, soil, and water when the munitions are fired and if they do not explode or only partially explode, and when munitions and their components are produced or destroyed. This proposal would exempt munitions and their toxic components from virtually any regulation under RCRA by exempting "explosives, unexploded ordnance, munitions, munition fragments, or constituents thereof" on operational military ranges from RCRA's definition of "solid waste." The proposed language would allow the Defense Department simply to leave munitions releasing toxic substances lying on or in the ground where they can leach into the environment, without any independent oversight or regulation. This would have the perverse effect of eliminating RCRA regulation of some of the most dangerous substances in existence. It would also seek to exempt from RCRA ordnance and toxic munitions contamination at sites other than training ranges. Army Ammunition Plants and facilities that have produced, tested, and demilitarized military rockets are some of the nation's most contaminated public and private sites warranting inclusion on EPA's National Priorities List under CERCLA. The Defense Department is already responsible for more NPL sites than any other party -- at least 140 at present. Yet this proposal seeks to exempt the DoD from having to remediate the toxic substances that leach from military explosives and munitions on "operational ranges, " a vague term which includes dozens of ranges that have been inactive for years or decades. CERCLA is our nation's main law for cleaning the worst toxic waste sites. The proposal would allow the military to wait to remediate such sites until after toxic contamination has increased for years, has spread off-site, and has driven clean-up costs much higher. CERCLA's remediation provisions are triggered by a "release" of a toxic substance, but the proposed language exempts from the term "release" any "explosives, munitions, munitions fragments, or constituents thereof" unless the range is closed or the toxic substances migrate off the range. CERCLA would only apply to these substances after the contamination has spread for years or decades, threatening public health and environmental quality, and adding years and potentially billions of dollars to any final remedial actions. DoD appears to have made a conscious decision to exclude munitions constituents from oversight not because it interferes with readiness B there has never been a documented instance where this has happened B but because of the staggering liability it will bear for the characterization and remediation of Perchlorate and other deadly contaminants such as RDX and HMX. The current legal authority on munitions contamination is the Military Munitions Rule promulgated by EPA in 1997 as directed by Congress in the Federal Facilities Compliance Act of 1992. The Munitions Rule determines, among other things, when munitions become a hazardous waste. However, it does not cover munitions constituents. DoD apparently deliberately decided to include these constituents in the items to be excluded from our nations' hazardous waste laws despite the real risks they pose to human health. DoD asserts that this proposal would simply codify or clarify existing regulatory policy. However, the RCRA and CERCLA proposals, when taken together, would force nearly all responses to munitions contamination to take place under CERCLA. Moreover, even within CERCLA, the normal CERCLA 104 RI/FS process would be made unavailable, with the only option being the CERCLA 106 abatement order regimen. Abatement orders require a much higher risk threshold showing of imminent and substantial endangerment, as well as Department of Justice concurrence. This is significant, because EPA and DoJ have never issued an abatement order to DoD. Also, because the CERCLA 104 sampling and inspection authority is eliminated, the regulators would be deprived of the very means to obtain the information necessary to support an abatement order. Unless an active military range is listed on the Superfund National Priorities List (which is highly unlikely), DoD would itself, as the lead agency, be leading the response to both on- and off-range munitions contamination. Under DoD's proposal, EPA and, by extension, the state regulators would likely have no independent authority under RCRA to issue binding orders or go to court to address on-range contamination, even in the case of an imminent and substantial endangerment to human health. And under CERCLA, DoD would be the lead agency in a process limited to the most severe abatement order situations, where only a showing of imminent and substantial endangerment will suffice. The result is that EPA and the states could be cut off from any effective oversight of contamination caused by military munitions. And this is proposed not because of any identifiable mission degradation owing to the need to comply with existing law, but as a matter of expediency for DoD. The prospect of litigation over its practices at ranges from Eagle River Flats to Vieques is not a valid justification for making legal requirements disappear. Proposed revisions to the Clean Air Act seek to exempt DoD from having to comply with NAAQS. This means that those living in areas near military bases could breathe dirtier air, which could result in more premature deaths, asthma attacks, cardiopulmonary problems, and other adverse health and environmental effects, especially among the very young and the very old. The sweeping exemptions within this proposal are unnecessary, because the CAA has ample provisions to reconcile clean air requirements with national security and military readiness concerns. Because the proposal defines military readiness so broadly, it attempts to permanently exempt DoD from conforming to federal or state implementation plans for attaining the NAAQS for a broad range of activities. The proposal attempts to give DoD a three-year extension on its conformity analysis and allow the federal government to proceed with its activities while analyzing those same activities' effects on air quality. Although it contains language requiring DoD to cooperate with a state to ensure conformity within three years of the date of new activities, it subsequently attempts to remove all the meaningful enforcement mechanisms for ensuring that they do so and to preempt a state from taking action to require reductions from the DoD. Thus, an area that violates the NAAQS because of these military activities could no longer have to take steps to meet them or to reduce air pollution. Moreover, the proposal actually defines dirty air to be clean air. Section 2018 does this by allowing EPA to approve areas as if they had attained the CAA's health-based standards, even though areas have not attained them, if the reason for the nonattainment is military air pollution. This is without precedent in the CAA and a direct attack on the protectiveness and truthfulness of what it means to attain the Act's health-based air quality standards. Relieving DoD from its obligation to control its own air pollution, moreover, will only shift that burden to private industry, small businesses and the public. Responsible state and local officials will not allow unhealthy air caused by military pollution to remain unaddressed, and they will be forced to turn to local businesses and members of the public (through measures aimed at cars and trucks) to make up the emissions reductions to which the military should have contributed. Allowing the military to do less than its fair share to clean up our air will impose burdens upon industry and small businesses and the public, in what might be termed the "shock and awe" phase of American environmental history. DoD asserts that there is insufficient flexibility in current law to accommodate its needs, but the CAA (as with RCRA and CERCLA) already provides ample mechanisms for exempting agency activities from conformity requirements where there truly is a military or national security need. In actuality, the military has rarely, if ever, perceived the need to invoke these long-available exemptions. Certainly, no new ones are called for, particularly in light of the severity of the environmental problems we now face, both in the United States and in the world as a whole. This is anything but the time to declare victory in the environmental war and go home. The world is now in the midst of, our sixth mass extinction. The five previous mass extinctions, during which huge numbers of speciesBup to 95 percent of all life on EarthBwent out of existence in a short span of time, all took place before human beings came on the scene. We have an air-tight alibi on the first five mass extinctions, but we are primarily responsible for the mass extinction now just beginning. Through our deliberate or inadvertent alteration or destruction of enormous amounts of critical habitat, we have severely jeopardized at least 40 percent of all known species now in existence on the planet, as I spell out in detail in my book, "Ark of the Broken Covenant." Now is the worst possible time to be contemplating new and wide-open exemptions to key provisions of RCRA, CERCLA, and the CAA, in the United States or anywhere else. Any weakening of these laws will inevitably result in harm to living things, both human and non-human. A mass extinction is no time for weakening the few effective legal protections now in place in defense of biodiversity. All or part of 3 of the 25 world's biodiversity hotspots are within the United States, and these hotspots would be further imperiled by the proposed exemptions. The United States should be exercising global leadership in crafting stronger, more effective legal safeguards for our dwindling biodiversity and our embattled environment. Instead, the proposed exemptions would do exactly the opposite. I am aware of only one instance in which the President has ever exercised any of the provisions already available in several of the major federal environmental statutes for a national security exemption. In the Groom Lake case, the President invoked the national security exemption in RCRA, and this was unequivocally upheld by the Ninth Circuit Court of Appeals in the case of Kasza v. Browner, 133 F. 3d 1159, 1173-74 (9th Cir. 1998), in which it was held that this exemption is solely within the President's discretion. This is evidence that national security exemptions from these laws, including the three under review here, have virtually never been needed or justified, even in the opinion of the President as advised by the Secretary of Defense. There is certainly no military exigency requiring new, sweeping exemptions for the Department of Defense. Neither is there any justification for the proposed right of removal provision. In my experience as an Air Force litigator, there was no mission degradation associated with the occasional need for us to defend ourselves in state court. Like any other litigant, we conducted our legal defense work within the jurisdictional and procedural rules generally applicable to everyone. We prided ourselves on our skill as trial attorneys, and we did not fear any forum, whether state or federal. And our record of success in hundreds of cases in various state and federal courts belies the notion that we somehow needed special favors to protect us from the system. The standard removal procedures available to all litigants were quite adequate for Air Force purposes, if and when they were needed. Many times, they were not needed at all. Thank you for the opportunity to testify at today's hearing. I would be happy to answer any questions you may have. Related Documents |
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