I am pleased to submit this report, entitled "A National Science Foundation Strategy for Compliance with Environmental Law in Antarctica," on behalf of the many NSF attorneys, scientists, and engineers who participated in its preparation over the past year. Because of the report's length, I am submitting an Executive Summary of the findings and recommendations under separate cover. The strategy outlined in the report will bring NSF into full compliance with all applicable laws, and foster environmentally responsible conduct by United States nationals in Antarctica. Achievement of sound environmental practices by NSF will also advance United States leadership in the Antarctic. The Office of the General Counsel looks forward to working with the Division of Polar Programs during the implementation of NSF's environmental, safety, and health initiatives. Robert M. Anderse Robert M. Andersen A National Science Foundation Strategy ACKNOWLEDGMENTS INTRODUCTION PART 1 - DETERMINING WHICH ENVIRONMENTAL LAWS GOVERN I. TREATIES AND OTHER LAWS WITH EXTRATERRITORIAL APPLICATION 1. The Antarctic Treaty, the Agreed Measures for Conservation of Handling in Antarctica 2. Proposed SCAR Revisions to the Code of Conduct a. Waste Management Planning and Practices b. Waste Disposal Measures (1) Solid Combustible Wastes (2) Solid Non-combustible Wastes (3) Radioactive Materials, Batteries, and Heavy Metals (4) Liquid Wastes (5) Waste Disposal at Inland Stations and Field Camps (7) Miscellaneous Matters 3. The Antarctic Conservation Act of 1978 4. Laws Governing Ocean Dumping and Waste Disposal from Ships a. London Dumping Convention b. Marine Protection, Research, and Sanctuaries Act of 1972 V 3 3 3 3 4 5 5 6 6 c. Other International Agreements and Statutory Provisions 5. Environmental Assessments B. Wildlife Conservation Requirements 1. The Agreed Measures for the Conservation of Antarctic Fauna and Flora 3. The Code of Conduct for Antarctic Expeditions and Station Activities 4. The Antarctic Marine Living Resources Convention Act of 1984 5. The Endangered Species Act 6. The Marine Mammal Protection Act 7. The Migratory Bird Treaty Act 8. Miscellaneous Conservation Measures II. THRESHOLD ISSUES REGARDING THE APPLICABILITY OF UNITED STATES ENVIRONMENTAL LAWS IN THE ANTARCTIC A. Extraterritorial Application of U.S. Environmental Laws 6 7 7 7 7 9 9 9 10 12 12 12 12 12 12 13 13 13 14 14 14 15 C. Applicability of Executive Order 12088 to the United States Antarctic Program 16 B. Standard Federal-Facilities and International Pollution Provisions III. DETERMINING WHICH PROVISIONS OF UNITED STATES ENVIRONMENTAL A. The Clean Air Act 18 18 Acknowledgments Obviously, a report of this magnitude would have been impossible without the cooperation and assistance of a large number of people dedicated to the task. We gratefully acknowledge all those who participated in the process, particularly the following individuals. Mr. Lawrence Rudolph, Assistant General Counsel, assisted in every phase of the preparation of this report and drafted several sections, most notably the comparison between the Code of Conduct for waste handling in Antarctica with the revised Code now under consideration by the Consultative Parties; the section on environmental assessments; and the section on ocean dumping. He also developed much of the factual background necessary for the compliance assessment contained in Part 2. Mr. Jesse Lasken, Assistant General Counsel, provided early drafts on conservation laws applicable to the Antarctic. Dr. Peter Wilkniss, Director of the Division of Polar Programs, not only personally advised OGC on numerous issues pertaining to the United States Antarctic Program, but also made his entire staff available to us throughout drafting of the report. Among those whose advice and assistance proved invaluable were Dr. Anton Inderbitzen, Dr. Sidney Draggan, Mr. John B. Talmadge, Mr. Thomas Forhan, Dr. Ted DeLaca, Dr. Carol Roberts, Mr. Erick Chiang, Mr. George Fitzsimmons and Mr. Robert J. Haehnle. The National Science Board and its Committee on Polar Programs also provided advice and support throughout the effort. I would also like to thank all of the agencies, particularly members of the Antarctic Policy Group headed by the Department of State, the environmental groups, and members of the public who commented on a draft of the report. Finally, Ms. Sandra Hairston provided all the typing, clerical, and administrative assistance necessary to bring the report from initial draft to final document. She cheerfully fulfilled her end of the bargain despite the long hours and unrelenting time pressure. Robert M. Andersen Robert M. Andersen Introduction Antarctica is unique among the continents. Nearly devoid of human population, Antarctica offers an unforgiving, majestic environment that presents unparalleled opportunities as a natural laboratory for scientific research and the study of wildlife, ecological processes, global climate change, and other natural phenomena. Antarctica stands alone in ways other than its singular ecology, environment, and scientific opportunities. For example, the fabric of Antarctica's geopolitics and its legal framework have no analogues elsewhere in the world. Several nations claim sovereignty over portions of Antarctica, although the United States does not recognize those claims, nor does it assert a claim itself. Transcending nationalism, many countries have now ratified the Antarctic Treaty of 1961 which dedicates Antarctica to cooperative science and other peaceful activities. The parties to the Treaty recognize, by international consensus, the importance of environmental protection on the Continent, fully aware that Antarctica is vulnerable to contamination and disturbance; that the scientific value of Antarctica depends upon preventing damaging contamination; that the impacts of activities, both locally and accumulatively, must be addressed; and that the parties must protect the Continent from harm due to govemment and non-government activities. Nevertheless, complex legal and jurisdictional questions regarding environmental enforcement remain unresolved." The United States operates three major stations in the Antarctic: McMurdo Station, on Ross Island; Palmer Station, on the Antarctic Peninsula; and the Amundsen-Scott Station at the South Pole. These stations, especially McMurdo, serve as staging areas for scientific field camps. The United States has also closed a number of stations operated in the past, as well as numerous scientific field camps. The past several years have witnessed a dramatic rise in tourism in Antarctica, expanded scientific research throughout the Continent, and increased logistical and operational activities at stations. With this expansion of activity came a heightened awareness of the need to protect the Antarctic environment and to remedy mistakes made in the past. Acknowledging the changes on the Continent, the Foundation took two important actions. The first occurred in December of 1986, when NSF commissioned a panel of experts to report on safety practices in Antarctica. Completed on June 30, 1988, the panel's report recommended improvements for United States operations in the interrelated areas of safety, health, and the environment.* In the second action, the Division of Polar Programs (DPP) independently developed an Environmental Protection Agenda. That effort began in April 1987, and NSF released the Agenda for review and public comment in August of 1988. Recognizing that the operation of the National Science Foundation's Antarctic Program (USAP) has had environmental impacts, especially in its early years, DPP's Agenda included a work plan to correct past problems and protect Antarctica for the future, and, in so doing, also protect the science conducted on the Continent. The Agenda also incorporated the Director's instructions to the Office of the General Counsel (OGC) to perform a review of the environmental laws applicable to Antarctica, and to assess NSF's compliance with those laws. OGC divided the environmental review into two major tasks: (1) a review of international and domestic environmental laws to determine which ones apply to Antarctica; and (2) an application of relevant environmental law principles to USAP operations to determine what actions, if any, NSF should take to bring our operations into compliance with mandatory legal standards, as well as sound environmental practices. Although the focus of this report is on NSF's own compliance in Antarctica, our survey of applicable laws allowed the Foundation to consider other federal agencies' and non-government operators' responsibilities under environmental laws." Concomitantly, our review of other groups' responsibilities in Antarctica sharpened OGC's analysis of the enforcement of environmental requirements on the Continent. 8 Determining which laws apply was a neutral, perhaps detached, exercise of professional judgment. We tried to address arguments on both sides of issues if legitimate legal disagreement existed, and then endeavored to reach a resolution of the issues. The second task presented greater difficulty. First, we gathered the facts about USAP Antarctic operations, primarily from extensive interviews with DPP personnel, briefings, and program documents.9 OGC's Deputy General Counsel conducted a site visit of the Palmer Station in March 1989, and is scheduled to visit and audit the McMurdo and South Pole operations during January 1990. |