[CPEO-MEF] "8149" lives

[Lenny Siegel <lsiegel@cpeo.org>]

Section 342 of the National Defense Authorization Act for Fiscal Year
2001 (S.2549), as reported by the Senate Armed Services Committee,
contains a provision (Section 8149 in the Fiscal Year 2000 Defense
Appropriations Act) that would continue the requirement that Defense
Department not pay environmental fines and penalties unless Congress
legislates approval. The new language appears to exempt smaller fines,
but its impact would be the same: Base commanders will be more likely to
resist pressure from state and federal environmental regulators to bring
their installations into compliance with a range of environmental laws -
laws for which other parties face financial penalties.

Section 8149 was slipped into the Appropriations bill last year at the
last minute, but there is plenty to time for Congress to reconsider
Section 342.

Here is the text of the pending section.

Lenny Siegel





SEC. 342. PAYMENT OF FINES AND PENALTIES FOR ENVIRONMENTAL COMPLIANCE
VIOLATIONS.

(a) PAYMENT OF FINES AND PENALTIES- (1) Chapter 160 of title 10, United
States Code, is amended by adding at the end the following new section:

`Sec. 2710. Environmental compliance: payment of fines and penalties for
violations

`(a) IN GENERAL- The Secretary of Defense or the Secretary of a military
department may not pay a fine or penalty for an environmental compliance
violation that is imposed against the Department of Defense or such
military department, as the case may be, unless the payment of the fine
or penalty is specifically authorized by law, if-- 

`(1) the amount of the fine or penalty (including any supplemental
environmental projects carried out as part of such penalty) is
$1,500,000 or more; or

`(2) the fine or penalty is based on the application of economic benefit
criteria or size-of-business criteria.

`(b) DEFINITIONS- In this section:

`(1)(A) Except as provided in subparagraph (B), the term `environmental
compliance', in the case of on-going operations, functions, or
activities at a Department of Defense facility, means the activities
necessary to ensure that such operations, functions, or activities meet
requirements under applicable environmental law.

`(B) The term does not include operations, functions, or activities
relating to environmental restoration under this chapter that are
conducted using funds in an environmental restoration account under
section 2703(a) of this title.

`(2) The term `economic benefit criteria', in the case of the imposition
of a fine or penalty for an environmental compliance violation, means
criteria which determine the existence of the violation, or the amount
of the fine or penalty, based on the assumption that a competitive
advantage was gained by a failure to invest money necessary to achieve
the environmental compliance concerned.

`(3) The term `size-of-business criteria', in the case of the imposition
of a fine or penalty for an environmental compliance violation, means
criteria which determine the existence of the violation, or the amount
of the fine or penalty, based on an assessment of an entity's net worth
and on assumptions regarding the entity's ability to pay the fine or
penalty.

`(4) The term `violation', in the case of environmental compliance,
means an act or omission resulting in the failure to ensure the
compliance.'.

(2) The table of sections at the beginning of such chapter is amended by
adding at the end the following new item:

`2710. Environmental compliance: payment of fines and penalties for
violations.'.

(b) APPLICABILITY- (1) Section 2710 of title 10, United States Code (as
added by subsection (a)), shall take effect on the date of the enactment
of this Act.

(2) Subsection (a)(1) of that section, as so added, shall not apply with
respect to any supplemental environmental projects referred to in that
subsection that were agreed to before the date of the enactment of this
Act.

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org

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