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 wildlife issues. 196 Those standards were reviewed previously.

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.

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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 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.

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 govern 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. Alteratively, 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." 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

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

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.

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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 to (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 concerned."201 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 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 States 203 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."

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to the generally applicable environmental laws of host jurisdictions.

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 little 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.

III. DETERMINING WHICH PROVISIONS OF UNITED STATES ENVIRONMENTAL LAWS APPLY TO FEDERAL OPERATIONS IN THE ANTARCTIC

Obviously, this report cannot present a full description of all the potentially applicable domestic environmental laws. The most important United States laws, however, are briefly 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.

A. The Clean Air Act

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The Clean Air Act (CAA) legislatively establishes a joint federal/state framework for the control of air pollution in the United States. 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. "207 For example the Executive Branch of the federal govemment 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 promulgate implementation plans (SIPs) that are designed to meet the NAAQS.2

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

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 Department. 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.

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Several provisions of the CAA dealing with motor vehicles, however, may apply to activities in the Antarctic. For example, the National Emission Standards Act, 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 inoperative. In addition, section 203(b)(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 standards.

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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 1983.4 220 EPA has adopted numerous industrial effluent limitations for 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.

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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.

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 return to these principles during the compliance review in Part 2.

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Hazardous wastes are either listed by name or identified under the statute and regulations using EPA criteria for toxicity, persistence, degradability, flammability, and corrosiveness. Solid wastes that are not hazardous are addressed by the statute, but the regulation of such waste has been left almost exclusively to the states." 231 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 locations. 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 program has 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 235

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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 at McMurdo Station, NSF hired a legal

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consultant on RCRA matters to independently determine which of RCRA's provisions, if any, apply to the Antarctic. The expert's analysis verified NSF's own conclusion that RCRA does not apply to federal facilities in the Antarctic. This comports with the written legal interpretation of the U.S. State Department. The consultant's complete report also summarizes the RCRA regulatory scheme, in the event that NSF wants to reference RCRA standards as the Foundation develops waste handling procedures for the Antarctic in accordance with the Environmental Protection Agenda. The complete report is available under separate cover. Only the critical federal-facilities provisions will be analyzed here.

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RCRA contains two separate federal-facilities provisions. The first, section 6001, is entitled "Application of Federal, State, and local law to Federal Facilities" and contains the standard federal-facilities provision analyzed previously. That provision places the federal government on the same footing as private citizens in the Antarctic, who are not required by RCRA to have a permit for operation of hazardous waste transportation, storage, and disposal facilities located outside the United States. The second provision, section 6004, deals with the applicability of 241 solid waste disposal guidelines to executive agencies. That provision broadly applies to federal agencies with jurisdiction over real property or facilities engaged in solid waste management activities.242 Unlike the general federal-facilities provisions reviewed previously, and section 6001, this provision does not limit compliance to the same Federal, State, and local standards that private parties must comply with." On the other hand, there is no express statement that federal facilities outside the United States must comply with RCRA solid waste guidelines." Based on the Foley doctrine, NSF's consultant agreed with our conclusion that the solid waste requirements were not triggered in the Antarctic by virtue of section 6004.245

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The federal-facilities clause in this Act requires federal agencies having jurisdiction over any federally owned or maintained public water system to comply with all Federal, State, and local requirements respecting the provision of safe drinking water." In essence, this standard places federal facilities on the same footing as other sources of drinking water within the United States. Under the Foley doctrine and our previous analysis, the reference to Federal, State and local requirements further suggests that this standard federal-facilities clause was not meant to 255 apply outside the United States." This view is also supported by the language of other provisions which apply only to federal agencies having jurisdiction over potential sources of drinking water contaminants within a particular state. Such federal agencies are subject to, and must comply with, state program requirements applicable to the potential source," and obviously no U.S. "state" program exists in the Antarctic.

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There are obvious health reasons, however, for applying national drinking water standards to those U.S. stations in the Antarctic operating a system which qualifies as a "public water system." The statute defines "public water system" as a system which provides to the public piped

water for human consumption, and has at least fifteen service connections or regularly serves at least twenty-five individuals. Since national standards for drinking water exist, NSF should adopt those standards to ensure safe drinking water for the employees, scientists, and members of the public who visit or live at U.S. stations operating such a system.

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E. Federal Insecticide, Fungicide and

Rodenticide Act

The Federal Insecticide, Fungicide and Rodenticide Act, commonly known as FIFRA, requires the registration of pesticides and pesticide producers. FIFRA also governs use permits, certification of applicators, inspections, searches and seizures, and other matters involving state cooperation and enforcement. Although the statute's jurisdictional reach is over persons, virtually all of the requirements under the Act pertain to activities within "any State," defined as one of the U.S. states or six other 258 specified areas (not including Antarctica). The entire regulatory scheme of FIFRA, therefore, focuses on persons acting within the geographical definition of "state".

In order to apply the requirements of FIFRA extraterritorially to persons wherever they may be, the statutory references to the locus of the regulated activity would have to be ignored. For example, FIFRA geographically limits its own reach in the following provisions: section 136a, prohibiting the unregistered sale of pesticides by "person[s] in any State"; section 136b, regulating the certification of applicators "in any State for which a State plan for applicator certification has not been approved"; section 136e, prohibiting the production of any pesticide subject to FIFRA "in any State"; section 136j, making unlawful certain specified acts by "any person in any State"; and section 135k, regarding stop sale, and use of removal orders for pesticides or devices found "in any State". By FIFRA's express terms, those provisions do not apply to Antarctica.

provision applies only in those circumstances where a state or federal agency must respond to an emergency condition without adhering to FIFRA's requirements, and most of those requirements involve activities within a state. Under such circumstances, there is no evidence that Congress intended FIFRA to apply to agency action outside the territorial jurisdiction of the United States.

F. The Toxic Substances Control Act

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The Toxic Substances Control Act (TSCA) of 1976262 provides a comprehensive regulatory framework for the control of the manufacture and use of toxic chemicals. It requires potential manufacturers of new chemicals to notify EPA before commencing production." The notice to EPA must include all known data on health and environmental effects. EPA may limit or delay manufacture or uses of a chemical on a finding that data are "insufficient to permit a reasoned evaluation of the health and environment effects" or because anticipated uses "may present unreasonable risk of injury to health or environment."

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Congress constructed TSCA to broadly regulate all toxic chemicals placed in the flow of United States commerce. Express import provisions make portions of the Act's notice and substantive provisions applicable to importation of toxic chemicals." EPA administrative enforcement actions support the conclusion that TSCA applies to the manufacture of chemicals outside the United States if they are offered for sale, or otherwise are placed in the stream of commerce, within the United States. Manufacturing in Antarctica is not an exception. This comports with the view of the U.S. State Department.

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United States companies that manufacture chemicals on foreign soil for sale and application only outside the United States are not covered by TSCA.2 The specific export and import provisions of TSCA make it clear that TSCA was not intended to reach local environmental problems created by United States companies operating abroad. Any NSF operations in Antarctica would be on similar footing, since wholly extraterritorial activities are not covered. Unlike many of the other environmental statutes, TSCA has no federal-facilities provisions per se. The absence of such a provision is probably due to the fact that Congress did not anticipate that the federal government would be involved in the manufacture and sale of toxic chemicals for civilian purposes.

TSCA also authorizes EPA to seek judicial relief against the manufacture, use, or release of chemicals which are 270 "imminently hazardous.' Special enforcement provisions of the Act require EPA to regulate and restrict