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provision, which is included in, and adapted to, the aforementioned statutes:

States statines. Nevertheless, some environmental groups · commenting on NSF's draft report inexplicably ignored Argentine Republic and argued that Foley's canon of statutory construction should be restricted to cases involving the possible application of United States statutes to activities in foreign countries.

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Govemment (1) having jurisdiction over any .. facility, or (2) engaged in any activity resulting. or which may result in the discharge of ... pollutants, and each officer, agent or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements ... respecting the control and abatement of ... pollution in the same manner, and

182 to the same extent as any nongovernmental entity.

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This attempt to convert the Foley canon of statutory construction into solely a conflicts-of-laws principle flies in the face of the Supreme Court decision in Argentine Republic regarding the high seas, as well as direct legal precedent applying the Foley doctrine to Antarctica. 179 Not surprisingly, the only federal judges who bave spoken directy to the issue have held that Foley's presumption against extraterritorial application of legislation govems cases involving Antarctica. Smith v. United States, 702 F. Supp. 1480, 1481 (D. Or. 1989)(currently on appeal); and Beattie v. United States, 756 F.2d 91, 113 (D.C. Cir. 1984) (Justice Scalia, formerly of the D.C. Circuit, applied Foley while dissenting in the result reached; majority found that Congress clearly intended the Federal Ton Claims Act to apply in Antarctica without mentioning Foley). Moreover, the Department of Justice has consistently maintained in the Beattie and Smith litigations that the Foley doctrine controls the determination of whether a United States statute applies in Antarctica. 180 Therefore, absent a clear expression by Congress, domestic environmental statutes, such as the National Environmental Policy Act, the Clean Water Act, and the Clean Air Act, would be inapplicable to federal facilities located in Antarctica.

This language clearly requires operators of federal facilities in the United States to comply not only with federal law, but also with additional ormore stringent state, interstate, and local standards that would apply to private facilities similarly located.183

Additional analysis is necessary to determine whether the standard federal-facilities provisions impose pollution control requirements for activities outside the territorial jurisdiction of the United States. The first portion of the standard language refers broadly to all federal facilities. Such a broad statement alone does not unambiguously resolve Congressional intent, however, and fails to overcome the Foley presumption."

184 The common provision then specifies that federal facilities must conform to all federal, state, interstate, and local requirements that private operators meet. The phrase "federal, state, interstate and local requirements” is consistently used by Congress in environmental statutes to refer to the totality of requirements triggered by the precise locality of a facility within

185 the United States. Therefore, it is highly unlikely that the phrase encompasses intemational or extraterritorial pollution requirements.

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The standard federal-facilities provision itself imposes no substantive extraterritorial pollution standards. Thus, even interpreting "federal" or "local" restrictions to include in. temational or extraterritorial requirements isn'ı dispositive since they only apply to federal facilities if they also govem private entities. To complete this analytical loop, therefore, one must look to the remaining portions of the environmental statutes to see if private operators are subject to federally imposed standards for operations located outside the territorial jurisdiction of the United States.

All of the above-stated environmental statutes govem private citizens primarily through requirements contained in permits issued by the states. As we shall see later, those statutes, with few exceptions, fail to establish pollution control standards for operators located outside the territorial jurisdiction of the United States. A State Depart. ment Memorandum issued in 1978 reached the same conclusion:

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laws, it would be difficult to conclude that Congress generally intended domestic environmental statutes to applyto Antarctica. 191

In fact, as one environmental group recently noted, it is highly unlikely that Congress ever considered the extraterritorial application of domestic environmental statutes to Antarctica at the time the laws were enacted.

As one might expect, the majority of the conservation/pollution related laws enacted by Congress are specifically limited in their application to the states or territory of the United States ... rendersing) application of the law to the Antarctic Treaty area

186 inappropriate."

Some environmental statutes, bowever, do not contain these standard federal-facilities and interational pollution control provisions. And, it is possible that individual requirements of the laws that do contain such provisions apply to private citizens of the United States or other entities, including operators of federal facilities, without regard to their geographical location. 19 Therefore, OGC has analyzed all of the major United States environmental laws to determine, on a statute-by-statute, provision-byprovision basis, whether Congress has expressed an intent that individual laws or portions of laws apply to U.S. citizens or other entities throughout the world.

The common provision dealing with international pollution control contained in the same statutes bolsters this conclusion. For example, the statutory provisions on intemational water and air pollution deal solely with emission sources within the United States that create pollution

187 problems in other countries." The provisions set no standards whatsoever for international pollution caused by sources outside the United States. If Congress wanted to reach emissions originating outside the U.S. and generated by U.S. citizens, it clearly would have done so in this provision, but chose not to. Therefore, the standard federal- facilities and international law provisions together demonstrate a contrary intent- that the laws apply only to federal facilities within the United States. . The Foley presumption only strengthens this conclusion, although the doctrine is seldom invoked unless there is some ambiguity or silence contained in the statute leaving room for an interpretation that gives it extraterritorial reach. Here there is no such room.

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The absence of an express statement making the federal. , facilities provisions applicable to all federal operations, wherever located in the world, further reinforces this conclusion."** Nothing in the legislative history indicates that the principal substantive provisions of our environmental laws were intended to apply to facilities outside the United States. Moreover, the standard federal-facilities provisions track the domestic approach taken throughout the relevant statutes. They reiterate the role federal/state cooperation plays as the very foundation of the environmental laws, without clearly imposing obligations on

190 operators outside the United Stales.'


Section 1-801 establishes substantive pollution control standards for federal facilities located in foreign countries or otherwise outside the territorial jurisdiction of the United States.

The Environmental Protection Agency's enforcement of U.S. environmental laws further buttresses this view. To the best of our knowledge. EPA has never asserted jurisdiction over NSF Antarctic activities, nor enforced any U.S. environmental statute based on activities confined solely to Antarctica. Based on EPA's own actions as the agency responsible for implementing these environmental

The head of each Executive agency that is responsible for the construction or operation of Federal facilities oulside the United States shall insure any such construction or operation complies with the environmental pollution control standards of general applicability in the host country or jurisdiction.


options confirms his intent that the host jurisdiction's laws control.

Both NSF and the State Department interpret section 1-801 to require that the U.S. comply with the generally applicable environmental and pollution control standards of the Antarctic region - principally the Antarctic Treaty of 1961, the Agreed Measures for the Conservation and Protection of Antarctic Fauna and Flora, the Code of Conduct for Antarctic Expeditions and Station Activities regarding the handling of waste, and other international treaties and laws dealing with global environmental and

196 wildife issues. Those standards were reviewed previously.

Collateral provisions of the Executive Order support this conclusion as well. Subsections 1-2 and especially 1-6, which deal with compliance with pollution controls, refer to coordination with the appropriate State, interstate, and local agencies. Those provisions are yet another indication that the list of federal environmental laws contained in section 1-102 was intended to apply to federal facilities within the United States. Indeed, many of the programs contained in the Clean Water Act and the Clean Air Acts are joint federal/state cooperative measures that do not translate into international or extraterritorial prescriptions.


Some commentators have implied that section 1-102 also requires wholesale compliance with all of the domestic United States environmental laws by federal operators of extraterritorial facilities. 197 Such a position is untenable for several reasons.

Most importantly, the plain language and intent of the Executive Order, read as a whole, makes it clear that the generally applicable standards in the host jurisdiction apply to U.S. facilities, and ordinarily not the domestic laws of

198 the United States. Section 1-102 requires federal facilities compliance only with "applicable" pollution control standards. Thus, section 1-102 requires a statute-bystatute analysis of the listed domestic environmental laws to determine if extraterritorial standards are contained in those laws. The Executive Order contains no language which indicates that the section 1-801 requirements were intended to be indiscriminately supplemented by the list of United States standards contained in section 1-102 without first determining which 1.102 standards are applicable outside the United States.


Contrary to the assertions of one group, Executive Order 11752, which was revoked by Executive Order 12088, confirms this interpretation Executive Order 11752, entitled Prevention, Control, and Abatement of Environmental Pollution at Federal Facilities, required heads of federal agencies 10 (1) apply the standards of specific environmental laws to "facilities under their jurisdiction in the United States”, and (2) assure that facilities operating "outside the United States ... comply with the environmental pollution standards of general applicability in the host country or jurisdictions concemed. This Order clearly and unequivocally acknowledged the difference between facilities operating within the United States and those located outside the jurisdiction of the United States. It applied U.S. environmental standards only to federal facilities within

202 the United States, as defined by the Executive Order, and required facilities outside the United States to comply with the environmental standards of the host country or jurisdiction. Executive Order 12088 reflects this same distinction, while recognizing, in section 1-102, that certain provisions of domestic environmental laws might be applicable worldwide. Section 1-801 embraces the identical language contained in its predecessor Order regarding the operation of federal facilities outside the United

203 States. Nothing in the drafting or language of Executive Order 12088 suggests that the President intended to fundamentally alter the previous Order's dual compliance track pegged to the location of the federal facility.

Had the President intended wholesale application of United States environmental laws (including those limited by Congress to the United States) to federal facilities throughout the world, he could have easily achieved that result He could have dropped section 1-801, and then stated in section 1-102 that United States environmental laws govem all federal facilities, wherever located. Or, he could have indicated that the host jurisdiction's laws supplement the United States laws listed in section 1-102, including those that are inapplicable to Antarctica by the terms of the statutes. Allematively, he could have invoked U.S. law extraterritorially only under certain conditions. For example, many of our nation's environmental laws expressly allow the states to impose more stringent standards than those contained in federal laws.199 A similar provision could have been included in the Executive Order triggering U.S. law only if the host jurisdiction's laws were less stringent That the President chose none of these


In summary, general principles of legal construction that laws and legal instruments are to be given their plain meaning where possible and must be construed as a whole, giving effect to all their provisions — support the conclusion that the Executive Order does not require operators of federal facilities outside the United States to comply with all United States environmental standards in addition

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The Foley presumption against international application of domestic laws, the standard federal-facilities provisions, and Executive Order 12088, all lead to the same place: a section-by-section analysis of domestic U.S. environmental laws to determine if Congress expressed an intent to have them apply to USAP operations in the Antarctic. If individual legal provisions apply on their face, it matters litle whether the Executive Order also requires compliance. On the other hand, if Congress did not intend the laws to apply to Antarctica, then they are clearly not "laws of general applicability" or "applicable pollution control standards" that govern Antarctic operations by virtue of the Executive Order.

throughout the major CAA programs dealing with air quality control regions, new source performance standards, interstate pollution, mobile sources, and the prevention of significant deterioration of air quality." A thorough review of the CAA demonstrates that the most substantive provisions of the law were intended to apply only to sources of air emissions within the United States. This comports with the view of the U.S. State Depart

211 ment. Indeed, many of the standards and emission limit provisions that require federal and state cooperation cannot be translated into extraterritorial prescriptions. Because Congress so clearly expressed its intention that air pollution controls for stationary sources of air emissions be developed by federal/state cooperation for facilities located in the United States, no serious question remains about the inapplicability of such controls to Antarctica. Thus, the Foley presumption need not be invoked to resolve any ambiguity due to unexpressed Congressional intent


ANTARCTIC Obviously, this report cannot present a full description of all the potentially applicable domesticenvironmental laws. The most important United States laws, however, are brief. ly described below. The following analysis focuses on statutory provisions that allow a definitive determination of whether or not portions of the laws apply to the Antarctic.

Several provisions of the CAA dealing with motor vehicles, however, may apply to activities in the Antarctic. For example, the National Emission Standards Ach, which is part of the CAA, arguably covers persons in Antarctica who either "manufacture" motor vehicles or attempt to remove or render an emission control device inopera

212 tive. In addition, section 203(6X(3) of the CAA requires motor vehicles intended for export to meet certain U.S. emission standards unless the receiving country has different standards. Since Antarctica is generally not considered to be a "country", all motor vehicles shipped by a U.S. facility to Antarctica may have to meet U.S. emission

213 standards.

A. The Clean Air Act The Clean Air Act (CAA) legislatively establishes a joint federal/state framework for the control of air pollution in the United States.206 While there are several major subprograms within the Act, the basic strategy is for "the federal government to adopt uniform environmental quality standards for widespread pollutants, and for the states to adopt and carry out, under federal supervision, implementation measures to achieve and maintain those standards.


For example the Executive Branch of the federal goverment establishes, and revises, National Ambient Air Quality Standards (NAAQS), which are concentration levels of certain pollutants that the government believes can exist in the ambient air without endangering the nation's health and welfare. The states then promul. gate implementation plans (SIPs) that are designed to meet the NAAQS.

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The federal water pollution control program was modemized in 1972 with extensive amendments to the Federal Water Pollution Control Act, now known as the Clean

This pattern of federal and state cooperation is established in the Act's statement of purposes and reiterated

Water Aa (CWA).217 The goal of the Clean Water Act is to restore and maintain the "integrity of the Nation's waters" by retuming them to "swimmable and fishable" condition, and eventually eliminating the discharge of all pollutants into the nation's navigable waters. Obviously, these goals have not been achieved in the United States.

there appears to be no ambiguity about Congressional intent, the Foley presumption removes any doubt about the reach of the majority of the CWA programs being limited to the United States and its territories.


The clear focus of the Act is waters of the United States. Operationally, the Act required EPA to develop uniform technology-based effluent standards for major pollution sources. AD "point sources" of pollution discharges into the nation's waters are required to obtain a permit from EPA, or a qualified state agency that has been delegated permitting authority by EPA.219

Numerous specific programs contained in the Act - nonpoint source pollution control, ambient water standards, wetlands protection, etc. — - clearly do not apply. However, because the Clean Water Act is geared toward technological controls and categorical effluent limitations, the Act's requirements are much more easily translated into sound environmental principles for Antarctic operation than, say, state-designed air emission limits driven by federal ambient air quality standards under the Clean Air Act. We will retum to these principles during the compliance review in Pant 2.

Industrial sources were to have achieved "best practical technology" (BPT) limitations, representing the better pollution control practices within an industry, by 1977, and "best available technology" (BAT) limitations, representing the state of the technological art, by 1983.4 EPA has adopted numerous industrial effluent limitations for

221 various categories and subcategories of dischargers. These BPT and BAT standards are targeted for improving pervasive conditions of pollution by meeting various indicators of water quality: biological oxygen demand, chemical oxygen demand, total suspended solids, pH, fecal coliform, and so on.

C. Solid and Hazardous Waste Handling The Resource Conservation and Recovery Act,

and Superfund The Resource Conservation and Recovery Act 227

228 (RCRA), together with its attendant regulations, provides one of the most comprehensive regulatory programs ever attempted, and is designed to ensure proper treatment, storage, and disposal of "solid" and "hazardous

229 wastes" in the United States. The emerging industrial field of hazardous waste management is pervasively regulated by RCRA.

A separate set of limitations was to be developed for toxic substances, including organic compounds, heavy metals and other toxics that pose serious health and ecological risks even in very small quantities or concentrations.

Publicly owned wastewater treatment works (POTW) in the United States were to achieve "secondary treatment", sludge removal plus mechanical acration or its equivalent, by 1977 and "best practical waste treatment" technology, designed to keep receiving waters swimmable and fishable,

233 by 1983. Funding for POTW construction and improvement is provided jointly by the federal and state govemments.

Hazardous wastes are either listed by name or identified under the statute and regulations using EPA criteria for toxicity, persistence, degradability, flammability, and cor

230 rosiveness. Solid wastes that are not hazardous are addressed by the statute, but the regulation of such waste

231 has been left almost exclusively to the states.

Companies that transport, store, handle, or dispose of hazardous waste are subject to a manifest system designed to generate a "cradle to grave" paper trail which traces hazardous waste from the site of generation to proper treatment and storage

Under the statute's key operational provisions, facilities operating hazardous waste treatment, storage, or disposal processes must obtain a permit from either EPA or a state (if the permit gagram

been delegated) in order to conduct business. EPA regulates nearly every aspect of hazardous waste landfills, from design of the facilities to their operation. The states are free to impose more stringent waste management requirements than EPA.

locations. 232


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Because of the complexity of RCRA's regulatory scheme, and its potential importance to the operation of the Fortress Rock landfill a McMurdo Station, NSF hired a legal

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