While OGC tried to verify the accuracy of the factual information used in the compliance assessment, some information gaps and inconsistencies were inevitable. Certain information, such as data regarding contaminant levels in water and soil, remains incomplete, making compliance determinations inconclusive in some cases.

Most importantly, the second task involved more than a straightforward legal assessment of whether present USAP operations meet mandatory standards that unequivocally apply to Antarctica. That indeed was done. However, in some cases, we found it impossible to determine conclusively whether a particular law and its standards apply to Antarctica. Moreover, international laws concerning the environment in Antarctica are evolving and rapidly changing. To serve our clients and the public properly, OGC prepared recommendations not only for actions that must be taken to bring USAP into full compliance with today's requirements, but also on steps that can be taken to meet the standards being developed this year and beyond. That necessitated analyzing not only what must be done, but what should be done. We welcomed the challenge of this role, and, therefore, we designed our recommendations to bring NSF into compliance with sound environmental practices, which are more lasting than current mandatory legal requirements. In preparing this combined legal and policy review, we have, however, carefully indicated where the line between "must" and "should" falls.

In commenting upon the draft report, several environmental groups asserted that OGC was overly restrictive in its analysis of what laws apply to the Antarctic. Those groups argued that nearly all United States environmental statutes apply to NSF activities in Antarctica. While an advocacy position may be appropriate for those groups, it is distinctly inappropriate for our Office's analysis of the issues. As many other commentators acknowledged, our legal determination that many national environmental statutes do not apply to Antarctica was relatively straightforward and clear. OGC's findings are also consistent with previous State Department interpretations of the environmental laws applicable to Antarctica.

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More to the point, the government and the public would be ill-served by NSF exaggerating the applicability of domestic United States environmental laws in Antarctica. Stretching the reach of these statutes would only obfuscate one of the most important tasks that confronts NSF, namely, strengthening the existing legal and regulatory frameworks to provide for even better environmental protection of Antarctic resources. Moreover, NSF, which is charged with environmental enforcement responsibilities in the Antarctic under the Antarctic Conservation Act, cannot base its enforcement efforts upon laws we firmly believe courts would find inapplicable.

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In addition to public comments, we asked each member of the Antarctic Policy Group for their agency's official position on the report before NSF finalized it. NSF has endeavored to achieve consensus on the issues within the government. Furthermore, we believe the Foundation has substantially achieved that goal by making many of the changes requested by Antarctic Policy Group agencies. Nevertheless, the report remains OGC's legal and policy advice to the Director and his staff, and reflect's only the Foundation's official position on the numerous complex legal and compliance issues addressed.

PART 1

L. TREATIES AND OTHER LAWS
WITH EXTRATERRITORIAL
APPLICATION

NSF, the State Department, and other agencies of the federal government involved in Antarctic activities have long recognized that the Antarctic Treaty and its attendant conventions and accords on environmental matters provide the fundamental legal framework governing pollution control and conservation in Antarctica. In addition, United States statutes directed at Antarctic environmental matters, together with treaties and statutes dealing with such international matters as ocean dumping, wildlife preservation, and other global environmental concerns, unquestionably apply pollution control and conservation requirements to Antarctic stations and bases, visiting tourists, and nongovernment operators active on the Continent."

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A. Pollution Control Requirements

1. The Antarctic Treaty, the Agreed Measures for Conservation of Antarctic Fauna and Flora, and the Code of Conduct for Waste Handling in Antarctica

Article IX of the Antarctic Treaty of 1961 directed the Contracting Parties to formulate, and periodically update, recommendations to the Treaty nations regarding "the preservation and conservation of living resources in Antarctica." In response, the Treaty parties approved Recommendation III-VIII and annexed a set of Agreed Measures for the Conservation of Antarctic Fauna and Flora in 1964. The Agreed Measures, discussed in greater detail in the wildlife conservation portion of this report, also contain pollution control standards. For example, Article VII directs each participating government to take all reasonable steps towards alleviation of pollution of the waters adjacent to the coast and ice shelves. Article VII also requires implementation of appropriate measures, including pollution controls, to minimize harmful interference with the normal living conditions of any native mammal or bird. The Antarctic Conservation Act implements the Agreed Measures.

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The most important recommended pollution control measures agreed to by the parties were contained in the Code of Conduct for Antarctic Expeditions and Station Activities, which included waste disposal guidance. While the Code of Conduct technically constitutes a set of recommendations, NSF should treat the Code as the mandatory baseline procedure for handling of waste in the Antarctic. Disregard of the Code's standards could result in unnecessary damage to the Antarctic environment and loss of international credibility. Where the United States or another country deviates from the Code, they must demonstrate that the alternative waste handling procedures being used are as protective, or more protective, of the environment than the Code recommendations. We reproduce the waste disposal portion of the Code of Conduct in its entirety.

(ii) Large quantities of photographic liquids should be treated for the recovery of silver and the residue should be flushed into the sea.

(c) The above procedures are recommended for coastal stations. Field sites supported from coastal stations should, where feasible, use the facilities of their supporting station. Inland stations should concentrate all waste in deep pits. Except as stated for inland stations, waste should not be buried.

(d) Waste containing radio-isotopes should be removed from the Antarctic Treaty Area.

(e) Every effort should be made to reduce the plastic packaging of products imported into the Antarctic Treaty Area.

(f) If possible the use of leaded fuels or fuels containing ethylene bromide and ethylene chloride should be avoided. (g) When incinerators are used it is desirable to monitor the effluents.

Representatives of Treaty parties attending the October 1989 ATCM in Paris, France (ATCM-XV), recently adopted the Proposed Code of Conduct. Prior to adoption, the proposed Code underwent some minor revisions and a reorganization of the text. All governments (Contracting Parties under the Treaty) must now review this recommendation, and deposit notice of approval or disapproval with the United States. If all Contracting Parties approve the recommendation, it will then be considered "effective" or "in force." Until such time, however, Treaty parties informally work towards implementing such recommendations adopted at ATCMs.

With few exceptions, the substantive provisions of SCAR's proposed Code were fully incorporated into the new ATCM-XV Code. Since the official version of the new Code will not be available until next year, however, we retained in this report the comparison between the existing Code of Conduct and SCAR's proposed Code. In those few instances where substantive changes were made in SCAR's proposed Code, we note such changes at the appropriate place.

2. Proposed SCAR Revisions to the Code of Conduct A comparison of these Codes illustrates the broader treatment and new directions sought by the SCAR panel for waste management and disposal in the Antarctic. The revisions also propose more stringent standards for inland stations.

OGC generally endorses the SCAR Report and the proposed Code's recommendations. On the whole, the proposed Code represents a step forward in the responsible stewardship of the Antarctic environment by Treaty members. DPP and OGC actively worked with the State Department, which developed the official United States position on the proposed Code for the October 1989 meeting of the Consultative Parties. We agreed with the State Department's viewpoint, which sought revisions in the proposed Code that ultimately resulted in greater clarity and enforceability of the document finally adopted.

The following analysis of the proposed Code cross-references existing Code provisions and describes the differences between the two Codes of Conduct.

a. Waste Management Planning and Practices The proposed Code contains thirteen clauses recommending waste management planning measures and pollution control guidelines for National Antarctic Operators (NAOS). Laying the foundation for better environmental practices in the Antarctic, the proposed Code recommends "that, to the maximum extent possible, National Antarctic Operators should endeavor to reduce the amount of waste produced, or disposed of, in Antarctica, so as to minimize the impact of waste on the Antarctic environment and to minimize interference with scientific research. "21 The Panel sought improved waste disposal practices and greater planning on the part of NAOS.

(1) Solid Combustible Wastes

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Under the proposed Code, NAOs must burn all combustible waste not removed from Antarctica in incinerators designed to reduce harmful emissions to the maximum extent practicable. The proposed Code recognizes that technologically advanced incinerators with neutralizing equipment are capable of burning certain products which would otherwise produce harmful emissions. Thus, the proposed Code allows the incineration of lubricating oils (with additives) or plastics if adequate emission control equipment is present on incinerators." If incinerators are incapable of reducing harmful emissions, NAOs should not burn plastics and rubber." The existing Code simply recommends against the burning of lubricating oils with additives, and encourages the removal of plastics and rubber products from the Antarctic Treaty Area."

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The only reference in the existing Code to the disposal of ash from incineration pertains to the residue from wood, wood products, and paper. The Code recommends that ash from such combustibles be disposed of at sea. The proposed Code does not specifically mention ash or byproducts from combustible wastes, but states that any waste dumping at sea should be in accordance with the London Dumping Convention."

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The existing Code does not mention open burning or storage practices. It suggests, however, that wood, wood products and paper be incinerated, and that waste at coastal stations not be buried.45 These two provisions,

read together, reflect the intention of the Consultative Parties to severely limit, or outright halt, open burning in Antarctica. The term "incineration" was probably being used in the limited context of controlled burning within an enclosed device which the waste engineering community refers to as an incinerator. EPA defines incinerator as any enclosed device using controlled flame combustion, but excludes boilers or industrial furnaces. The existing Code very likely contemplated either the complete retrograde of solid waste, ocean dumping pursuant to permit, or the incineration of only wood and paper products. Moreover, any open burning will typically require some burying and landfilling of the residue. Since the Code

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