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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 malysis verified NSF's own conclusion that RCRA does not apply to federal facilities in the Antarctic. This comports with the wrigen legal inter

231 pretation 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.

feedstocks (87.5%), with the balance supplied by the federal treasury.29 This "Superfund" underwrites the cost of cleanup and provides compensation for damages to govemmentally owned natural resources. Federal clemup response must be consistent with the national contingency plan and a priority list of cleanup sites that was developed in consultation with the states.

While CERCLA has no direct applicability to the Antarctic, sections of Executive Order 12088 perform much the same function. Those sections direct the beads of agencies to request sufficient funds to bring federal facilities into compliance with applicable waste bandling

251 standards. We will return to this issue in Part 2 of the report

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 pre

239 viously 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

242 waste management activities. 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

243 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

D. Safe Drinking Water Act The Safe Drinking Water Act, as amended, contains a variety of provisions designed to protect underground drinking water supplies, set drinking water quality standards, and enforce injection well requirements. Most of the provisions concem the regulation of state programs and

252 enforcement responsibility. Since "state" is defined as the several states of the United States and seven other

253 specified areas (not including Antarctica), all state-referenced provisions expressly would not apply outside the United States.

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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, Slate, 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

235 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 slate. 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.

However, EPA has promulgated certain solid waste handling criteria under the apparent belief that they are applicable to all federal facilities worldwide. We will retum 10 those criteria when discussing NSF's compliance with proper waste handling practices in Pan 2 of this report.

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There are obvious health reasons, however, for applying nacional 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 froman 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 a U.S. stations operating such a system

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.

E. Federal Insecticide, Fungicide and

Rodenticide Act The Federal Insecticide, Fungicide and Rodenticide Ach commonly known as FIFRA, requires the registration of pesticides and pesticide producers. FIFRA also govems 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 specified areas (not including Antarctica). The entire regulatory scheme of FIFRA, therefore, focuses on persons acting within the geographical definition of "state".

F. The Toxic Substances Control Act 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. -264

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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 136c, 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.

Congress constructed TSCA to broadly regulate all toxic chemicals placed in the flow of United States com

265 merce. Express import provisions make portions of the Act's notice and substantive provisions applicable to importation of toxic chemicals.

.266 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 compons with the view of the U.S. State Deparment.

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268 The specific export

The only provision that arguably has extraterritorial reach is section 1360(c), which regulates the importation of pesticides and devices. If pesticides or devices were manufactured, produced, and then imported into the United States from Antarctica, the importation of such pesticides and devices would be regulated.

United States companies that manufacture chemicals on foreign soil for sale and application only outside the United States are not covered by TSCA. 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 pro ons per se. The absence of such a provision is probably due to the fact that Congress did not anticipate that the federal govemment would be involved in the manufacture and sale of toxic chemicals for civilian purposes.

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Finally, FIFRA does not contain a federal-facilities clause. Il neverheless provides that the EPA Administrator may exempt any federal or state agency from the Act's provisions during an emergency,

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suggesting that FIFRA's definition of persons may include state or federal agency employees. As a practical matter, however, this

TSCA also authorizes EPA to seek judicial relief against the manufacture, use, or release of chemicals which are "imminenty hazardous. 270

Special enforcement provisions of the Act require EPA to regulate and restrict

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271 use md disposal of poly-chlorinated biphenyls (PCBs)." Congress failed to indicate whether EPA has extraterritorial enforcement authority under TSCA.272 We also know of no cases in which EPA has asserted such authority 10 enforce against release or discharge wholly outside the territory of the United States. Nevertheless, the restrictions developed under these provisions, particularly on the handling and disposal of PCBs, are useful as guides for Antarctic waste handling procedures. Therefore, the regulations will be covered in Part 2 of this compliance review.

The judiciary, for example, became involved when en vironmental groups filed mumerous court cases. Plaintiffs typically sought to compel agencies to conduct EISs with respect to federal actions abroad. In several of the early cases, "voluntary compliance with NEPA (by the agency sued) would moot the issue of extraterritoriality and prevent a ruling that NEPA was applicable to all extraterritorial activities.-278

Although no court directly addressed the issue, both sides of the controversy relied on various count results, judicial inferences, and isolated pronouncements in support of their own interpretation 279 Applicable case law, however, provided liale support for cither position. The courts cleady wished to avoid the issue of NEPA's extraterritoriality, and generally did so.

Instead of waiting for the courts or the executive branch to reconcile conflicting inter-agency positions, Congress decided to act. In an effort to solve - temporarily - the issue of NEPA's extraterritorial applicability with respect to Eximbank's activities, members of Congress proposed an amendment to the Export-Import Bank Act.

TSCA does contain provisions that deal with shared enforcement responsibilities between EPA and other agencies when they are mutually responsible for the control of what generically could be referred to as toxic chemicals and toxic pollution EPA must defer to the lead agency if unreas risks of harm are mitigated under laws administered by the lead agency. In 1989, the Director of NSF and the Bush Administration agreed to, and planned, a $180 million safety, environmental, and health initiative which has now been presented to Congress. Environmental aspects of that initiative are contained in DPP's Environmental Protection Agenda, with further recommendations for action to control toxic pollution presented in this report, which both the Director and DPP have approved for implementation. Therefore, so long as NSF implements these plans to control the handling and disposal of chemicals in Antarctica, EPA probably cannot assert authority to control those activities, even if we assume that EPA's general enforcement jurisdiction under TSCA reaches federal

274 facilities outside the United States.

The Senate Subcommittee on International Finance favored the amendment, the Committee on Environment and Public Works sought to strike it, and advocates on both sides published numerous articles in support of their positions in the Congressional Record. Ironically, those wishing to limit the reach of NEPA were in a quandary whether to support the amendment. On the one hand, the amendment freed Eximbank's overseas activities from NEPA's EIS requirement; on the other, the legislative initiative to exempt Eximbank strongly suggested that NEPA was applicable to all other agency actions abroad, an inference that opponents of extraterritorial application wished to avoid

G. The National Environmental Policy Act The National Environmental Policy Act of 1969 (NEPA)? sets national policies and goals regarding man's interrelationship with the environment. To insure consideration of these policies, NEPA requires federal agencies to prepare an environmental impact statement for legislative proposals and "other major federal actions significantly affecting the quality of the human environment.

While the Congressional debate continued, the White House directed the State Department and CEQ to draft an executive order resolving this inter-agency conflict. Gir. culation of the draft Order, and comments by President Carter that the Order would not require EISs for federal cxport licenses, permits, approvals, and other export-related actions, eventually resulted in the Eximbank amendment not being adopted. Clearly, the President's effort to consolidate positions was successful. Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, now provides a choice of several procedures for

282 agencies whose activities have extraterritorial impacts.

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As fully described in an OGC Memorandum, dated February 9, 1989, the executive agency dispute over NEPA's reach was resolved by virtue of Executive Order 12114. The President stated that the Order "represents the

United States government's exclusive and complete determination of the procedural and other actions to be taken by Federal agencies to further the purpose of the National Environmental Policy Act, with respect to the environment outside

the United States, its territories and possessions. Consistent with this Executive Order, we conclude that Executive Order 12114, and not the procedural requirements of NEPA, applies to agency actions in the

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impacts on the global commons, as well as the territory of the United States. The Count frankly acknowledged the difficulty of the issue, and its own reluctance to fully address it In short, the Court recognized NRC's compliance with Executive Order 12114, examined the policy considerations underlying both the Nuclear Non-proliferation Act and the general rule against extraterritoriality announced in Folg, and then tailored its decision as narrowly as possible. Because NRC had complied with both Executive Order 12114 and its environmental obligations under a statute other than NEPA, the court was able to restrict - without fear that environmental concems were being overlooked NEPA's extraterritorial applicability, and find NEPA inapplicable to the narrow factual issue at hand.

Antarctic. 204

The only court decision that discusses NEPA's extrater. ritorial applicability subsequent to the issuance of Executive Order 12114 is Natural Resources Defense Council v. Nuclear Regulatory Commission, 647F.2d 1345 (D.C. Cir. 1981). One of the major issues on appeal was the plaintiff's assertion that the Nuclear Regulatory Commission (NRC) failed to prepare a site-specific EIS for the federally licensed export of a nuclear reactor. A subsidiary issue included the question of NRC's reliance on programmatic and generic environmental analyses with respect to

Regardless of NEPA's inapplicability to NSF activities in the Antarctic, Executive Order 12114 contains many of the same NEPA environmental assessment requirements. Those requirements will be addressed later in this repon. studies. Some 17 scientists and support personnel winter at the station, and up to 100 people work there during the

PART 2-
Assessing NSF's Compliance With Applicable
Environmental Laws In Antarctica

summer.

The United States currently operates three major stations in Antarctica: McMurdo Station, the largest U.S. base, which serves as the major coastal staging area for U.S. science and operations in Antarctica; Palmer Station, on Anvers Island in the Antarctic Peninsula; and the unique inland station at the South Pole.

Established in December of 1955, McMurdo is built on the bare volcanic rock of Hut Point Peninsula on Ross Island, the farthest point south of solid ground accessible by ship. McMurdo serves as the logistics hub of the U.S. Antarctic Program, with a harbor, landing strips on sea ice and shelf ice, and a helicopter pad. Its numerous buildings range in size from a small radio shack to large, three-story structures. Research is performed at and near McMurdo in marine and terrestrial biology, biomedicine, geology and geophysics, glaciology and glacial geology, meteorology, and upper atmospheric physics. Peak summer population can exceed 1,100; winter population is approximately 140 people.

Each of these stations produces waste that reaches the Antarctic land, sea, or air. Part 2 examines waste disposal at U.S. stations and assesses NSF's compliance with the laws identified in Part 1 as applicable to United States operations in Antarctica. In developing recommendations to improve compliance, OGC also considered sound environmental practices embodied in United States domestic laws or regulations which, while not technically applicable, provide valuable guidance and policy direction for NSF's environmental initiatives.

Palmer Station, on a otected harbor on the southwestem coast of Anvers Island off the Antarctic Peninsula, is the only U.S. Antarctic station north of the Antarctic Circle. Built on solid rock, the station consists of two major buildings and several smaller ones, and is equipped with two large fuel tanks and a dock. Construction of the existing station was completed in 1968. Palmer is superbly located for biological studies of birds, seals, and other components of the marine ecosystem, since it has a large and extensively equipped laboratory and sea water aquaria. Scientists also pursue meteorology, upper atmospheric physics, glaciology, and geology at and around Palmer. Approximately 40 people occupy Palmer during the summer months; winter population is about 10.

The facts regarding NSF's Antarctic operations were drawn from the Stations' official operational manuals, various engineering reports and technical documents, extensive discussions with Station managers and other DPP officials, and, in the case of Palmer Station, a site visit. Factual material is presented in summary fashion to avoid lengthening an already long report. Readers interested in additional details may refer to the source documents refer

288 enced in the footnotes. Every attempt was made to insure that the facts regarding past and future sources of pollution at the stations were as accurate as possible. DPP personnel reviewed and revised draft fact sheets relied upon by OGC for development of the final report.

The Amundsen-Scou South Pole Station has been continuously occupied by Americans since late 1956. The station was rebuilt in 1975 as a geodesic dome 50 meters wide and 16 meters high. The dome, together with 46 by 80 foot steel archways, houses modular buildings, fuel bladders, and other necessary equipment. Research at the station includes glaciology, geophysics, meteorology, upper atmospheric physics, astronomy, and biomedical

Pan 2 is divided, as Pan 1 was, into major subsections devoted to pollution control and wildlife conservation. In the pollution control section, we assess compliance at existing Stations. The section focuses upon preventative measures needed to reduce or eliminate harmful pollution. However, we also address problems created by past practices that require remedial or cleanup action at the permanent stations. Abandoned United States stations or bases may also require further cleanup activity. Our wildlife and conservation responsibilities under the law, examined in the second section, encompass geographic areas beyond NSF station locations, and therefore must be considered in the context of international cooperation throughout the Continent.

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