Statement of Senator James M. Jeffords

Committee on Environment and Public Works

Oversight Hearing on Military Encroachment

April 2, 2003, With Attachments

I thank you, Mr. Chairman, for convening this hearing today. Like many of my colleagues, I am a veteran. I have the greatest respect for those who serve this nation. I served in the Naval Reserves for thirty years. I was on active duty in the Navy in the fifties. My ship, the McNair, was the first U.S. military ship to navigate the Suez Canal after the Egyptians took control of the canal in 1955. I am a member of the Veterans of Foreign Wars, the VFW.

Like every Senator and citizen here today, I am concerned about our troops on our military bases in the states and throughout the world. I want them to have every advantage as they prepare for and engage in military conflict. But, in securing these advantages, I do not intend to place unfair burdens on civilians, nor to endanger public health or environment.

As you know, I believe that we should carefully examine any proposals to amend or effectively amend the laws in the jurisdiction of this Committee. If we choose to act, this should be the Committee that reports measures in our jurisdiction to the Senate.

The proposals we have before us today would permanently alter the implementation of four statutes in our jurisdiction B each complex on its face; each interpreted numerous times by the courts through lawsuits brought by citizens as well as the regulated community; and each implemented through regulations developed in an open, public process. As our distinguished colleague who chairs the Armed Services Committee observed in a recent hearing in this Committee, these laws have taken years to put in place.

Even when change is proposed during a time when this country is at war, it is this Committee’s charge to understand the implications of change in those laws, as well as the need for change, and to weigh the consequences to public health and the environment.

Having chaired the hearing on this subject last July, and having listened to each witness, including the generals who testified that day, I must say I was left with an overwhelming sense that the case had not been made for such broad-sweeping, permanent exemptions for the Department of Defense, its operational and moth-balled facilities, as well as its private contractors. It was clear that these proposals extended well beyond the resolution of training impediments.

Although it was also clear that reasonable minds of considerable expertise differed on the interpretation of the language the Department of Defense put forward, I learned that the proposals might result in off-site consequences that would extend well beyond the term of a training mission or perhaps an entire war. For instance, the facilities owned by the Department of Defense cover 13 sole-source aquifers. The Massachusetts Military Reservation in Cape Cod, Massachusetts is one such facility.

There are serious potential toxic effects that may result from the contaminants DoD is seeking to exempt from the hazardous waste laws. Perchlorates, used as the primary ingredient in solid propellant for rockets, missiles and munitions, have been found in groundwater in numerous locations where rocket propellants and explosives have been handled. Perchlorates interfere with iodide uptake in the thyroid gland which can effect a fetus and newborn and result in changes in behavior, delayed development and decreased learning capability.

After the recent publication of a Wall Street Journal article entitled “Bush Seeks Liability Shield for Perchlorate Pollution,” I understand that the Environmental Protection Agency and the Department discussed the need to “tighten up” the proposal.

I look forward to reviewing the revisions, but I understand that even under these revisions EPA, states and citizens will lose their authority to address perchlorates when deposited on an operational range, and EPA’s and the states’ authority to address migration off-range will be limited.

Not only does the Department of Defense handle these and other dangerous substances, but its track record in so doing is admittedly not a stellar one.

I have reviewed one source which lists 22 sites where perchlorate contamination is associated with a Department of Defense-owned or operated facility, including four sites in each of the states of California, New Mexico and Texas. I have a list of Department of Defense Superfund sites that is three pages long and lists approximately 130 sites. Even President Bush in his campaign speech in April 2000 said that the federal government is considered the “nation’s worst polluter.”

Should we provide legal exemptions to an entity with so much left to clean up?

The Environmental Protection Agency certainly appears to be reluctant to blame the environmental laws for impediments to training. Last month, Administrator Whitman testified before this Committee that she knew of no example of environmental laws interfering with training activities.

More recently, she wrote to Secretary Rumsfeld expressing concern that DoD witnesses in Congressional hearings have created an impression that EPA has prevented vital military training. I quote from her March 10, 2003 letter:

“When our agencies began working together on environmental issues in

2002, senior DoD officials conceded that EPA’s statutes and regulations were not presenting a current impediment to training and readiness . . . . Unfortunately, the DoD witnesses . . . failed to clearly distinguish between immediate, ongoing problems with environmental laws and hypothetical issues which may or may not materialize, leaving an, I believe, erroneous impression of the situation.”

I understand that our EPA witness here today will endorse the Department’s legislative proposals B yet the Administrator’s statements clearly question the need, especially on a fast-track timeline, for these exemptions

In fact, it is not clear that the Department of Defense is in agreement with the immediacy of need for these exemptions. Since our hearing last July, we have seen no activity on the part of the Department to secure the waivers available under current law.

In fact, in a memo dated November 2002 a defense official discouraged field office attempts to secure waivers available under the Endangered Species Act out of concern that “some concessions could run counter to the legislative relief that we are continuing to pursue with the Congress.” In addition, other than this memo, we have yet to receive an answer to our inquiry as to why the current section 7(j) procedure for waivers under the Endangered Species Act is inadequate and has not been utilized.

Just last month, Deputy Secretary of Defense Wolfowitz encouraged employees to identify areas where, in “exceptional cases,” waivers should be sought under current law. This leads me to the conclusion that the more constructive dialogue following this hearing today might be a dialogue about how to implement, or perhaps to craft, the waivers that govern these exceptional cases, rather than a dialogue focused upon permanent and sweeping statutory exemptions.

Finally, I would like to address some of the statements and misstatements made about these proposals during the time they have been pending. First, we have frequently read statements that the proposals merely codify existing policies and practices implemented during the previous Administration. If this is true, I once again must question the need for legislation. However, contrary to these statements, the proposal is fundamentally different from the EPA’s military munitions rule. For instance, this proposal would eliminate EPA’s ability to respond to emergency situations by limiting its statutory authority to respond to imminent and substantial endangerment to health and the environment under the Resource Conservation and Recovery Act.

EPA’s regulation did not eliminate this statutory authority. EPA’s regulation did not alter the agency’s ability to address constituents of munitions, like perchlorates B but this proposal does alter that authority.

As for the Department’s Endangered Species Act proposal, unlike the Clinton-era proposal, the Department of Defense will determine what to do about species on its own lands. The Clinton-era proposal was a case-by-case consultation; the Department’s new proposal is an exemption.

I would also like to point out that in many of the examples of Endangered Species Act problems at training ranges, such as the example of the species at the Barry M. Goldwater Air Force Range in Arizona, there has been no designation of critical habitat. So, if in fact training missions at this range or others were cancelled, this apparently was not because of critical habitat designation.

Fort Richardson, Alaska is an example often cited as support for the proposal, yet a few facts are often missing from discussion. In previous testimony, Department officials have stated that the Army could be forced to seek an operating permit and to perform corrective action or cleanup of Eagle River Flats. Contrary to allegations, this lawsuit was brought by citizens, not EPA. Also contrary to allegations, the lawsuit does not seek to compel cleanup. A citizen suit under Superfund cannot compel the President or EPA to order cleanup.

We have received testimony that a proposed critical habitat under the Endangered Species Act would cover 57% of the base at Camp Pendleton in California, but in fact the Fish and Wildlife Service excluded all but 875 acres of Camp Pendleton’s approximately 120,000 acres of training land from its final critical habitat designations B that’s less than 1% of the base.

The list of factual disputes continues, Mr. Chairman. If nothing else, they highlight the complexity of these issues and our need to examine them carefully.

I am concerned that these proposals are too broad and may in fact enact unintended harm. In addition, I am concerned that the contamination not cleaned up or prevented by the military will be left for others to address -- that includes industry and citizens alike. Critical habitats not maintained on military lands mean compressed habitat requirements on surrounding lands, much owned by private citizens.

I stand ready to work with the Chairman on these proposals B there is much work to be done.