"ADMINISTRATIVE ACTION" COMPROMISE

[Lenny Siegel <lsiegel@igc.org>]

"ADMINISTRATIVE ACTION" COMPROMISE

Before passing its version of the Defense Authorization Act earlier 
this month, the Senate modified Section 363, the provision designed to 
allow the Defense Department to unilaterally delay (for 30 days) 
administrative actions by other agencies that interfere with readiness 
or training. The original Section 363 was opposed by the Clinton 
Administration and New England Senators such as Democrats Kennedy and 
Kerry from Massachusetts and Chafee, from Rhode Island, the head of the 
Senate Environment Committee. It was written primarily in response to 
EPA's "cease-fire" order at the Massachusetts Military Reservation 
early this year.

The Cape Cod Times played it as a victory for EPA and environmental 
activists. On July 12, 1997, it wrote: "Thanks to Kennedy and Sen. John 
Chafee, R-R.I., the Senate yesterday watered down a proposal that would 
have given the Senate more power to invoke 'military readiness' as a 
reason to ignore the wishes of federal environmental officials in 
dealing with hazardous wastes and other contaminants." The new version 
reduces the delay from 30 days to 5.

However, even the new version is likely to cause concern to 
environmental regulators and the public, because unlike many other 
recent pieces of legislation, it gives the Pentagon special status with 
regard to all environmental laws in which U.S. EPA is authorized to 
issue administrative orders, even in peacetime. Yet, because it does 
not directly apply to the states, it's possible that the language will 
make it into the Conference Committee Defense Authorization bill with 
little or no attention.

The new language, printed in the Congressional Record (July 11, 1997), 
p. S7334, does the following:

* The head of the executive agency, such as U.S. EPA, issuing the 
administrative order shall consult with the Secretary of Defense 
whenever the Defense Secretary finds that such an order significantly 
impairs training or readiness.

* A five-day moratorium is automatically imposed when the Secretary of 
Defense submits written notification to the other agency.

* The head of the executive agency may override the moratorium if she 
"determines that the delay in enforcement of the administrative action 
or proposed administrative action will pose an actual threat of an 
imminent and substantial endangerment to public health and the environment.

* If the executive agency head and Defense Secretary cannot reach 
agreement through consultation, then the Secretary shall notify the 
President, who shall take final action.

* "The head of an Executive agency may not delegate any responsibility 
under this section."

Lenny Siegel