Federal Facilities Environmental Journal最新文献

Industry and government executives have debated for some time the topic of outsourcing and privatization in the defense industry. Many believe that it is imperative that the obstacles to the Department of Defense's aggressive use of outsourcing and privatization be identified and that solutions be proposed to remove such obstacles. This article was written with the intent to assist organizations in identifying, minimizing, and allocating the potentially massive environmental liability that confronts contractors in any on-site outsourcing and privatization services (i.e., depot support, coproduction and GOCOs, logistics, maintenance, remedial action contracting, and even generic “ash & trash” services). In addition, this article examines potential sources for recovery of environmental costs that contractors incur in consolidating their own facilities during discretionary downsizing or post-merger restructuring.

While the concept of environmentally preferable purchasing by federal agencies is not a new initiative by any means, it has been pursued with never-before-seen vigor under the Clinton Administration. The concept goes back in law to at least the 1976 amendments to the Solid Waste Disposal Act, more commonly known as the Resource Conservation and Recovery Act (RCRA). Section 6002 of that statute created a dual approach by which EPA designated items with recycled content and buying federal agencies had an obligation to buy the designated goods. These are sometimes called “guideline goods.” For almost 20 years, however, only a handful of products (cement containing fly ash, re-refined oil, retread tires, paper and building insulation materials) were designated, and even then, the federal agencies were essentially left to their own devices as to when purchase of guideline items would be in their interest.

Certain classes of chemicals foreign to the human body can interfere with endocrine hormonal systems. Hormones are the master controllers of biochemical processes. A wide range of pathological conditions can ensue at all stages of life. Research has shown these or similar chemicals to be increasing in natural and man-made environments. Some research indicates that wildlife is exhibiting the destructive effects of hormone disruption caused by man-made chemicals. The claim is made that human health is already being adversely affected. Many information gaps exist. Major research and screening programs are under way around the world that could well lead to banning or curtailed use for many heavily used chemicals. Makers and users of chemicals can avoid the embarrassing surprises experienced with previous new environmental issues and control programs by joining in the ongoing issue-framing scientific, legislative, and regulatory processes.

In 1992, the Supreme Court ruled in DOE v. Ohio, 112 S.Ct. 1627 (1992) that both the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) did not provide an explicit waiver of sovereign immunity which would allow enforcement of punitive fines and penalties (for past violations) against federal facilities. In response to this decision, Congress, in 1992, passed the Federal Facility Compliance Act (FFCA). This law amended RCRA to provide an explicit waiver of sovereign immunity. Members of Congress have expressed interest in amending the CWA to provide a similar waiver of sovereign immunity.

This article discusses the arguments for and against including an FFCA-type waiver of sovereign immunity in the CWA. On its face, such a waiver would appear to be an attractive way to increase federal compliance with the CWA. However, it should not be assumed that such a waiver would increase CWA compliance in the same manner the FFCA has increased RCRA compliance. The article concludes that the best approach would be to provide a limited waiver of sovereign immunity for CWA violations. This limited waiver would allow punitive penalty enforcement by the Environmental Protection Agency (EPA) against federal agencies (even in those states that have state-run programs), but maintain the prohibition against state enforcement. This type of waiver would provide the benefits of punitive penalty enforcement, while protecting federal prerogatives from the vagaries of state enforcement actions.

Perhaps no area of environmental law is less understood than the law that regulates radioactive materials and wastes. Radiation experts such as health physicists who talk in terms of “curies,” “Sierverts,” and “critical mass” have a language and methodology that seem alien to most environmental practitioners used to dealing with the intricacies of the Resource Conservation and Recovery Act, the Clean Air Act, or the Clean Water Act. When I think of how most environmental engineers and attorneys view the rules that regulate radioactive materials, I am reminded of a Churchill quote that Russia was “a riddle wrapped in a mystery inside an enigma.”

Many people assume that virtually all rules pertaining to radioactive materials and waste are governed by the Nuclear Regulatory Commission (NRC) regulations. While the NRC obviously is a major “player,” it is not the only one. Depending on the quantity and type of substance involved, the activity involved, that is, possession, use, transportation, disposal, or cleanup of contamination, other agencies may be “players” as well. Those agencies include the Environmental Protection Agency (EPA), the Department of Energy (DOE), the Department of Transportation (DOT), the Occupational Safety and Health Administration (OSHA), other federal agencies such as the Department of Defense (DOD), and even state radiation protection agencies.