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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 unreasonable 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 facilities outside the United States."

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The judiciary, for example, became involved when environmental groups filed numerous 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." Although no court directly addressed the issue, both sides of the controversy relied on various court results, judicial inferences, and isolated pronouncements in support of their own interpretation. Applicable case law, however, provided little support for either position. The courts clearly wished to avoid the issue of NEPA's extraterritoriality, and generally did so.

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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. 280

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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.

While the Congressional debate continued, the White House directed the State Department and CEQ to draft an executive order resolving this inter-agency conflict. Circulation of the draft Order, and comments by President Carter that the Order would not require EISS for federal export 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 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

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The Court 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 Foley, 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 concerns were being overlooked NEPA's extraterritorial applicability, and find NEPA inapplicable to the narrow factual issue at hand.

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 report.

PART 2

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.

Palmer Station, on a protected 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 Amundsen-Scott 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

studies. Some 17 scientists and support personnel winter at the station, and up to 100 people work there during the

summer.

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.

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 referenced 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.

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Part 2 is divided, as Part 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.

I. COMPLIANCE WITH POLLUTION CONTROL LAWS

A. The Antarctic Conservation Act of 1978 Because of the clarity of Congress' mandate and the need for pollution control regulations, the Director has instructed OGC and DPP to proceed immediately with development of proposed rules that designate harmful pollutant levels and establish appropriate permitting procedures designed to prevent the discharge of harmful pollutants into the Antarctic environment by United States citizens. OGC and DPP will establish an advisory group of officials from NSF, other federal departments or agencies, and non-governmental entities to assist NSF in developing the final regulations after preliminary work has been completed. The Foundation should make every effort to designate pollutants and publish final regulations by May 1, 1991, so that permits can be drafted and implemented beginning with the austral summer starting in 1991.

The Antarctic Conservation Act permitting program should be used to resolve, in a practical way, the need to impose legally enforceable pollution control requirements on United States government and non-government activities in Antarctica. The Director of NSF considers the designation of harmful pollutants, and the promulgation of permit regulations controlling United States pollution in Antarctica, one of the Foundation's highest environmental priorities. He has established a task group within NSF to complete the regulations and to issue permits before the start of the austral summer of 1991. The permits issued within this regulatory scheme will not only allow NSF to control and monitor sources of pollution from its own bases, but also from other federal Departments and agencies operating in the Antarctic, as well as from U.S. scientists and NGOs, such as tour companies, private expeditions, and other organizations with connections to the United States.

One of the most important results of this regulatory effort will be the elimination of further unproductive debate about which laws apply, and are enforceable, against United States nationals in the Antarctic. As demonstrated previously, many United States domestic laws do not apply in Antarctica even though they embody sound principles of environmental protection. Moreover, international codes of waste handling are often contained in recommendations or agreements that ultimately rely on intemational political pressures and other informal compliance mechanisms rather than administrative and judicial enforcement against violators.

Permits issued under the Act, with appropriate conditions controlling the discharge of pollutants, will put enforcement teeth into these international and domestic environmental standards which are currently unenforceable in United States courts. Under the Antarctic Conservation Act, it is unlawful for citizens of the United States to discharge any pollutant in Antarctica, except in accordance with a valid permit issued by NSF 289 Individuals or organizations who violate the prohibited acts section of the ACA or the conditions of an NSF permit are subject to administrative enforcement action under NSF's newly promulgated Antarctic Conservation Act hearing and enforcement procedures, as well as civil or criminal prosecution in federal court."

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Implementation of a permit system govering the discharge and handling of waste and chemicals will enable NSF to convert international agreements and appropriate United States domestic environmental standards into legally enforceable permit conditions.

For example, NSF could easily convert the Code of Conduct recommendations regarding the discharge of human wastewater into Antarctic coastal waters into enforceable permit conditions for all governmental and nongovernmental operators. Emission standards similar to those contained in State Implementation Plans under the Clean Air Act could be developed and enforced for all major stationary sources of air emissions at United States bases. Enforceable hazardous waste handling permits, modeled after RCRA systems, could be developed for all govemment and NGO handlers of hazardous waste in Antarctic. And so on.

The ACA explicitly establishes NSF as the lead agency for pollution control, monitoring, and enforcement on the Continent. The existence of these Antarctic Conservation Act provisions are additional indications that Congress did not intend most EPA-administered domestic environmental laws to apply in Antarctica. Rather, NSF alone is explicitly charged with designating all harmful pollutants and controlling their discharge through the issuance of permits. It is unlikely that Congress envisioned both NSF and EPA developing separate and duplicative pollution control permitting and enforcement systems for the Antarctic.

Promulgation and implementation of pollution control permit regulations will fulfill Congress' intent that NSF lead United States efforts to mitigate the impact of human activity on the Antarctic environment.

The Order's requirements are described in detail in a separate OGC Memorandum to the Director on NEPA's extraterritorial application. Most importantly, the Order requires agencies to promulgate procedures that provide for preparation of environmental impact statements (including generic, program, and specific statements) whenever major decisions are made which significantly affect the environment. Agency procedures may provide for appropriate modification of the contents of statements, as well as the availability of impact statements to other affected federal agencies and nations.295 NSF's procedures may also contain categorical exclusions for certain activities.

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Without regulations implementing this Executive Order, the Foundation has not assessed many of its activities in the Antarctic to determine whether environmental impact statements were required. Although a programmatic EIS was completed for the U.S. Antarctic Program in 1980, the Foundation must still assess major site-specific activities impacting the Antarctic environment. Until regulations are issued pursuant to Executive Order 12114, NSF should comply with the Order's procedural requirements in the spirit in which they were intended, and prepare appropriate environmental documents for major federal actions significantly affecting the Antarctic environment.

DPP and OGC are currently preparing proposed regulations for environmental assessments of extraterritorial activities. We recommend that NSF continue to implement its Agenda, and issue regulations pur. suant to Executive Order 12114 as soon as possible. At a minimum, compliance with the Executive Order will require assessments of certain activities to determine whether environmental impact statements are necessary. The procedures must clearly describe the manner in which NSF will decide whether an agency action significantly affects the Antarctic environment. Definitions and other provisions should take into account the special environmental and operational circumstances in the Antarctic. Once NSF implements these procedures, the Foundation will be in compliance with Executive Order 12114 and all environmental assessment provisions of the existing Code of Conduct and related treaty recommendations. NSF should also complete its revision of the 1980 programmatic EIS as soon as possible.

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C. Compliance With Wastewater Treatment Requirements

1. McMurdo and Palmer Stations

Wastewater is collected by a central sewage system which serves most of the buildings at McMurdo. A few buildings, which are located too far from the existing collection system, have incinerator toilets. Some buildings (estimated to be three or four) have no toilet facilities, but are served by 55 gallon "U-barrels" that are removed and replaced as needed.

The current sewer collection system needs improvement. For example, heat-tracing on piping is maintenance intensive and requires frequent replacement. NSF has initiated a program to upgrade the sewer disposal lines with jack