Appendix A
Environmental Regulations, Laws, and Treaties
Environmental issues are a major concern for our military forces. With new laws and regulations emerging, environmental protection will continue to have a growing impact on operations. Violations of federal, state, or local environmental laws can result in both civil and criminal penalties. Military personnel and leaders must understand these laws and respond accordingly. They must apply the respective regulations, ensure that unit personnel are properly trained, and ensure that all legal and regulatory guidance and requirements (military and civilian) are met. This appendix provides a brief description of the primary environmental regulations and principal environmental laws applicable to military activities. It is not inclusive of all requirements; some regulations are applicable to overseas or force projection operations, while others apply primarily to CONUS requirements. Military facilities are subject to federal, state, local, and foreign nation environmental laws. When requirements differ, facilities should apply the most stringent regulations. The U.S. military does not expect commanders to be legal experts, but they must understand the requirements of environmental laws and regulations. The unit's supporting environmental management office staff is the best source of assistance to ensure unit compliance with environmental laws and regulations.
SOURCES OF ENVIRONMENTAL LAWS AND REGULATIONS
A-I. Federal, state, local, and foreign nation governments have established laws and regulations to protect human health and to protect natural and cultural resources from environmental degradation. Heightened public and federal environmental awareness has led agencies to develop policies to support regulatory compliance and stewardship. The President of the United States also directs the federal government through the use of EOs, and DOD complies with these directives, as it does with any other federal law. The regulations, orders, and pamphlets identified in this appendix provide additional guidance for commanders. The U.S. military will comply with these laws and regulations as they pertain to individual localities or installations, deployments, or operations.
A-2. At most locations, installation environmental support personnel are available to help unit leaders understand the various laws and regulations. These support personnel include the chain of command and key installation personnel (DPW/environmental officer, SJA attorneys, and range officers). Unit leaders should consult with these environmental personnel on the specific requirements for each location. Given state and local differences in environmental laws, military personnel must understand that what is environmentally permissible on one installation may not be permissible on another.
LAWS, REGULATIONS, AND EXECUTIVE ORDERS RELATING TO PREDEPLOYMENT AND DEPLOYMENT OPERATIONS AND TRAINING
A-3. Preparation is the key to any endeavor. As military forces prepare for deployment, various laws and regulations govern the conduct of the operations. Reviewing these requirements will assist military forces in the early integration of environmental considerations.
ARMY REGULATION 200-1
A-4. This regulation implements federal, state, and local environmental laws and DOD policies for preserving, protecting, conserving, and restoring the quality of the environment. This regulation provides guidance on the following areas:
• Environmental components of installation sustainability.
• Environmental support to the Army training and testing mission.
• Environmental support during deployments and contingency operations on and off the installation, and operations at Army facilities that are not officially designated as installations.
• Compliance-related cleanup program.
• Army Defense Environmental Restoration Program.
• Formerly used defense sites.
• Defense and State Memoranda of Agreement/Cooperative Agreement Program.
• P2.
• Compliance with environmental legal mandates.
• Natural resources.
• Cultural resources.
• Environmental protection aspects of pest management.
• Environmental training for military and civilian personnel.
• Base realignment and closure environmental program.
• NEPA requirements.
• Operational noise.
• Environmental quality technology.
• Environmental Legislative/Regulatory Analysis and Monitoring Program.
• Environmental reporting and information management.
• Environmental considerations in real estate and materiel acquisition programs.
• Army Environmental Management System.
ARCHAEOLOGICAL RESOURCES PROTECTION ACT OF 1979
A-5. This act stipulates that anyone excavating archaeological resources on federal lands must have a permit or be subject to civil or criminal penalties. Persons requesting an Archaeological Resources Protection Act permit should be directed to the installation archeologist or the United States Army Corps of Engineers (USACE) district engineer. Installation law enforcement personnel should be aware of archaeological resources in need of protection, and sites should be monitored regularly.
A-6. Unit leaders-
• Avoid digging or conducting operations in or near cultural sites or structures.
• Brief military personnel on the importance of avoiding, protecting, and safeguarding archaeological sites, to include refraining from collecting artifacts.
• Report the discovery of any artifacts and wait for clearance to resume training.
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF
1980
A-7. This act, known as Superfund since its enactment in 1980, regulates the past releases of HM into the environment and establishes personal liability for the release of HM. In 1986, the Superfund Amendments and Reauthorization Act (SARA) amended the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Together, these laws establish the Superfund program for the cleanup of HW sites. The corresponding DOD program for SARA and CERCLA laws is the installation restoration program. This program helps to identify, investigate, and clean up the contamination that occurs on DOD property.
A-S. Unit leaders-
• Report suspected contamination sites to the chain of command.
• Ensure that military personnel understand the environmental ethic and apply it to avoid future liabilities.
• Dispose of all HM/HW properly.
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF 1986
A-9. The Emergency Planning and Community Right-to-Know Act (EPCRA) provides a mechanism for informing local populations about possible chemical hazards in the community. Also known as the SARA Title III, the law originally applied only to industry. EO 12S56 extended the EPCRA to federal facilities, including DOD. The law requires military installations to plan for effective emergency procedures in the event of a spill or an uncontrolled release of HM.
A-10. The EPCRA also requires local governments to prepare for the emergency release of HM by appointing a local emergency planning committee. Facilities with HM operations submit nonclassified inventories and immediately notify the committee when any release of HM occurs in quantities greater than permissible levels. Installations prepare annual reports of HM released through accidents and normal operations.
A-11. With regard to EPCRA, unit leaders-
• Train military personnel on spill prevention planning, reporting, and cleanup according to the installation spill contingency plan.
• Maintain a current HM inventory and an MSDS for each HM in the unit. Unit leaders provide a copy of the HM inventory to the fire department or installation environmental management office.
• Comply with the installation spill contingency plan.
ENDANGERED SPECIES ACT OF 1973
A-12. As amended, the ESA protects threatened or endangered plants and animals, to include fish, insects, and invertebrates. All federal agencies are to ensure that any action (authorized, funded, or carried out by it) is not likely to jeopardize the continued existence of any listed species or result in destruction or adverse modification of the critical habitat. The National Defense Authorization Act for fiscal year 2004 amended the ESA by allowing installations to be excluded from critical habitat if such designation would impact national security.
A-13. The ESA prohibits anyone from "taking," which includes harassing or harming, a listed fish and wildlife species unless permitted by the law. Additionally, the ESA makes it unlawful to remove or maliciously damage or destroy listed plants in areas under federal jurisdiction. Laws imposed on federal agencies include requirements to-
• Conserve listed species.
• Not jeopardize listed species or cause destruction or adverse modification of critical habitat.
• Consult on actions that may affect listed species or critical habitat or to confer if the species is proposed for listing.
• Conduct biological assessments for major construction activities.
• Not take listed species.
A-14. The ESA prohibits the destruction, capture, trading, selling, or buying of the listed species. DOD consults with the appropriate agency (National Oceanic and Atmospheric Agency-Fisheries or the United States Fish and Wildlife Service) before taking any action that may affect, adversely or beneficially, a listed species or designated critical habitat.
A-15. It is Army policy to proactively manage species at risk to prevent ESA listings that could severely degrade military readiness. The Army identifies species at risk as those species that are official candidates for ESA listing, classified as critically imperiled on a global scale, or a concern for the ESA listing in the
foreseeable future. Implementing proactive measures to prevent the listing of a species at risk would be beneficial to both the Army and the species.
A-16. Unit leaders-
• Enforce range control and installation environmental regulations.
• Avoid actions that could harm protected plants and animals and their habitats on the installation and on any off-post training areas.
• Recognize threatened and endangered species' habitats and avoid them during training, operations, and logistics activities.
• Avoid actions that could harm species at risk and their habitats on Army property, if feasible.
• Mark environmentally sensitive areas as restricted movement areas during field training.
• Consult and coordinate with the environmental office for other local requirements relating to wildlife and natural vegetation.
• Avoid brush and tree cutting for camouflage.
• Coordinate with preventive medicine personnel.
• Avoid damage to marked wildlife food plots and watering areas.
• Comply with the installation endangered species management plan.
• Provide the environmental office with information, when applicable, on the impacts that critical habitat designated on the installation would have on the mission.
EXECUTIVE ORDER 11987
A-17. EO 11987 directs all federal agencies to prevent the introduction of exotic species (all plants and animals not occurring, either presently or historically, in any ecosystem of the United States) into the natural ecosystems of the United States (United States means all 50 states, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands). This order is of special importance when addressing redeployments to the United States from areas OCONUS.
EXECUTIVE ORDER 11990
A-18. EO 11990 addresses the actions federal agencies must take to identify and protect wetlands. Additionally, it directs agencies to take into consideration the effects of actions within wetlands. The intent is to preserve and enhance the natural values of wetlands and to minimize the risk of wetland destruction.
EXECUTIVE ORDER 12088
A-19. EO 12088 links federal environmental regulations with federal facilities. It directs all federal facilities to control and monitor environmental pollution (defined as the condition resulting from the presence of chemical, mineral, radioactive, or biological substances that alter the natural environment or that adversely affect human health or the quality of life, biosystems, the environment, structures and equipment, recreational opportunities, aesthetics, or natural beauty) according to federal environmental regulations.
A-20. This order also established the A-106 (1383) reporting process, now referred to as environmental program requirements. In November 1988, the EPA issued The Yellow Book: Guide to Environmental Enforcement and Compliance at Federal Facilities, which establishes a comprehensive and proactive approach by which federal facilities may comply with federal regulations.
EXECUTIVE ORDER 12580
A-21. EO 12580 (amended EO 12088) delegates CERCLA duties and powers (as amended by the SARA). It provides for a national contingency plan to provide national and regional response teams to plan and coordinate HM/HW preparedness and response actions. The response teams may include representatives from state and local governments.
EXECUTIVE ORDER 13007
A-22. EO 13007 provides direction to federal agencies on managing Native American sacred sites. It requires that federal agencies allow Native Americans reasonable access to lands that contain sacred sites. Further, federal agencies must avoid adversely affecting the "physical integrity" of sacred sites and ensure that reasonable notice is provided to Indian tribes when land management policies may restrict future access or adversely affect sacred sites.
EXECUTIVE ORDER 13101
A-23. EO 13101 (replaced EO 12995 and EO 12873) requires federal agencies to incorporate waste prevention and recycling into their daily operations and implement cost-effective procurement preference programs for recycled and environmentally preferable products and services. P2 whenever feasible is national policy. Pollution that cannot be prevented should be recycled; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner. Disposal should be employed only as a last resort. Federal agencies shall comply with executive branch policies for the acquisition and use of environmentally preferable products and services and implement cost-effective procurement preference programs favoring the purchase of these products and services.
EXECUTIVE ORDER 13423
A-24. EO 13423 requires federal agencies to lead by example in advancing the nation's energy security and environmental performance by achieving goals in the area of-
• Vehicles. Increase purchase of alternative fuel, hybrid, and plug-in hybrid electric vehicles when commercially available.
• Petroleum conservation. Reduce petroleum consumption in fleet vehicles by 2 percent annually through the year 2015.
• Alternative fuel use. Increase alternative fuel consumption at least 10 percent annually.
• Energy efficiency. Reduce energy intensity by 3 percent annually through the year 2015 (30 percent by the year 2015).
• Greenhouse gases. Reduce energy intensity by 3 percent annually (30 percent by the year 2015)
in order to reduce greenhouse gas emissions.
• Renewable power. At least 50 percent of current renewable energy purchases must come from new renewable sources (in service after 1 January 1999).
• Building performance. Construct or renovate buildings according to sustainability strategies, including resource conservation, reduction, and use; siting; and indoor environmental quality.
• Water conservation. Reduce water consumption intensity by 2 percent annually through 2015.
• Procurement. Expand purchases of environmentally sound goods and services, including biobased products.
• P2. Reduce use of chemicals and toxic materials and purchase lower-risk chemicals and toxic materials from the top priority list.
• Electronics management. Annually, 95 percent of electronic products purchased must meet Electronic Product Environmental Assessment Tool standards where applicable; enable Energy Star® features on 100 percent of computers and monitors; and reuse, donate, sell, or recycle
100 percent of electronic products using environmentally sound management practices.
• Environmental management systems. Implement Environmental Management System at all appropriate organizational levels to ensure use of Environmental Management System as the primary management approach for addressing environmental aspects of internal agency operations and activities.
FEDERAL FACILITY COMPLIANCE ACT OF 1992
A-25. The Federal Facility Compliance Act applies only to RCRA requirements. However, this act represents a growing consensus that federal facilities should comply with environmental laws in the same manner as private, nongovernmental civilian agencies.
A-26. Originally passed in 1992, the Federal Facility Compliance Act subjects DOD employees at all levels to personal criminal liability for environmental violations of any federal or state solid waste or HW law. Criminal sanctions under federal HW law (the RCRA) include a maximum fine of up to $250,000, a jail sentence of up to 15 years, or both. The Federal Facility Compliance Act also allows regulatory agencies to issue notices of violation (NOVs) (defined as a formal written document provided to an installation by a regulatory agency as a result of environmental noncompliance) and impose civil fines and administrative action for solid waste and HW violations. Unit leaders-
• Cooperate with environmental inspectors.
• Perform assessments of the military personnel work areas to ensure compliance with environmental guidelines.
• Inform the chain of command when environmental problems are discovered.
FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT OF 1972
A-27. The Federal Insecticide, Fungicide, and Rodenticide Act requires pesticide products to be licensed or registered by the EPA. It also requires proper management of pesticide use, storage, and disposal. Only certified personnel or someone under the direct supervision of a certified person may use restricted-use pesticides.
A-28. Unit leaders-
• Ensure that field sanitation teams are properly trained in the use of HM in the field sanitation kit (for example, pesticides, rodenticides, insecticides [insect repellent], and fungicides [foot powder]).
• Employ procedures according to FM 21-10 and FM 4-25.12.
• Notify the installation DPW or G-4 concerning pest control in unit billets and dining facilities.
FEDERAL HAZARDOUS MATERIALS TRANSPORTATION LAW OF 1975
A-29. Formerly known as the Hazardous Material Transportation Act, this federal HM law authorizes the U.S. DOT to issue interstate and intrastate regulations related to transportation of HM. DOT oversight applies to packing and repacking, handling, labeling, marking, placarding, and routing.
A-30. In addition, the Federal Hazardous Materials Transportation Law establishes recordkeeping requirements and a registration program for shippers, carriers, and container manufacturers. Units most commonly haul HM in the form of POL products and ordnance. Units comply with these requirements during operations and deployments requiring vehicle movement or convoys on federal and state highways. Unit leaders-
• Train military personnel on proper transportation procedures, to include vehicle placarding, material packaging, vehicle loading, operator requirements, safety precautions, and spill procedures.
• Ensure accountability for all HM.
• Apply the CRM process to each unit movement requirement.
MARINE CORPS ORDER P5090.2A
A-31. MCO P5090.2A provides policy and responsibilities for cultural resources management and identifies applicable statutory and regulatory requirements for cultural resource and Native American programs. It provides guidance to Marine forces operating ashore after disembarking. For guidance while afloat, see Naval Warfare Publication (NWP) 4-11 to incorporate environmental considerations into naval doctrine and reference Chief of Naval Operations Instruction (OPNAVINST) 5090.1B for specific guidance.
A-32. This MCO also establishes specific Marine Corps policy and responsibilities for compliance with federal, state, and local environmental legislative and regulatory requirements. It addresses the following major areas:
• Protection of human health and the environment.
• Compliance with appropriate laws and regulations.
• Remediation of past contamination.
• P2.
• Preservation of natural, historical, and cultural resources.
MILITARY MUNITIONS RULE OF 1997
A-33. This rule amends RCRA and identifies when conventional and chemical munitions become HW under the law. It is a minimum federal standard for the management of waste military munitions and provides new procedures for the storage, transport, and disposal of such waste. DOD, other federal agencies, and government contractors who produce or use military munitions for DOD are affected by this rule. States may adopt military munitions requirements more stringent than the federal rules.
A-34. Unused munitions become waste when abandoned (for example, buried, placed in landfills, or dumped at sea); detonated (except as a consequence of intended use); burned, incinerated, or treated before disposal; removed from storage for treatment/disposal; deteriorated or damaged beyond repair; recycled or reused; or declared as waste by an authorized military official.
A-35. Military munitions are not waste when used for their intended purpose, such as training; as a part of research, development, testing, and evaluation activities; or during range clearance activities on active and inactive ranges. This rule excludes unused munitions that are repaired, reused, recycled, reclaimed, disassembled, reconfigured, or otherwise subject to materials recovery activities. Assignment of a particular condition code or placement in one of DOD's demilitarization accounts is not an indicator of whether an item is a waste, since many of these materials are subject to recovering, reusing, and recycling activities. (See actions associated with the Federal Hazardous Materials Transportation Law of 1998). Unit leaders-
• Train military personnel on proper procedures for the transportation, storage, handling, and return of military munitions.
• Ensure accountability for all munitions.
• Report all problems with damaged or malfunctioning munitions through the chain of command and the issuing/turn-in facility.
NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
A-36. The NEPA affects virtually every proposed action on military installations. Installations pay particular attention to actions that may present a danger to the health, safety, or welfare of civilian and military personnel or cause irreparable harm to animal or plant life. The act requires federal agencies to consider the environmental impacts of their actions during planning and decisionmaking.
A-37. Installations document these considerations while ensuring public involvement in the planning process. Only those actions categorically excluded from NEPA documentation requirements are exempt. (See appendix B, Section II, of 32 CFR 651 for a list of categorical exclusions). EO 12114 extends the application of the act philosophy to major federal actions in foreign nations. No impact to any resource shall be implemented until an environmental assessment or an environmental impact statement is completed according to the NEPA document. Unit leaders-
• Identify areas of environmental concern.
• Identify mission-related environmental risks.
• Identify potential effects of environmental factors on missions and operations.
• Discuss environmental risk in training meetings and briefings.
• Identify alternative training scenarios and techniques.
• Consult installation environmental office personnel regarding requirements for NEPA documentation.
NATIONAL HISTORIC PRESERVATION ACT OF 1966
A-38. The National Historic Preservation Act requires federal agencies to consider the effects of their actions on cultural and historical resources, such as with regard to construction, leases, land transactions, and base realignment and closure. It seeks to safeguard against the loss of irreplaceable historical properties, especially those located on federal land. Many Army facilities are located on historical and archaeological sites, to include prehistoric settlements and 19th century cantonments.
A-39. Unit leaders-
• Identify and recognize possible archaeological and historical artifacts, sites, and structures.
• Plan and conduct training, operations, and logistics activities to avoid damage to archaeological or historical artifacts, sites, or structures.
• Instruct military personnel to leave historical artifacts in place and report newly discovered items to the chain of command.
• Report vandalism, theft, or damage to historical, cultural, or archaeological sites.
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT OF 1990
A-40. The Native American Graves Protection and Repatriation Act ensures the protection and rightful disposition of Native American cultural items, including human remains, from federal lands. It establishes a consultation process for the intentional excavation or inadvertent discovery of protected cultural items. Military personnel must immediately report the discovery of Native American remains and artifacts.
A-41. Unit leaders-
• Identify and recognize possible Native American historical artifacts, sites, and remains.
• Plan and conduct training, operations, and logistics activities to avoid damage to Native
American historical artifacts, sites, or remains.
• Instruct military personnel to leave Native American historical artifacts, sites, or remains in place and report newly discovered items to the chain of command.
• Report vandalism, theft, or damage of Native American artifacts, sites, or remains.
NOISE CONTROL ACT OF 1972
A-42. Through the Noise Control Act, the President established a national policy to promote an environment free from noise jeopardizing the public health and welfare. The act also regulates noise emissions from commercial equipment, such as transportation and construction equipment. The act exempts noise from military weapons or combat equipment.