BASE CLOSURE TRANSFER ISSUES (120H)

[Lenny Siegel <lsiegel@igc.org>]

TRANSFER RESTRICTIONS ON FEDERAL PROPERTY
Lenny Siegel
May 17, 1995

Federal law [CERCLA Section 120(h)] now prevents the transfer of 
contaminated federal property to non-federal entities unless it's clean 
or a remedy is in place. A few years ago, Congress passed CERFA, 
designed to permit the transfer of parcels within a larger contaminated 
property and allowing the transfer of land above contaminated 
groundwater as long as it did not interfere with cleanup. I strongly 
supported CERFA as a way to facilitate rapid transfer and reuse of 
closing military bases without sacrificing the protection of public 
health and the environment.

Now the Defense Department, dissatisfied with the rate at which it is 
able to transfer parcels on closing bases, is proposing to further 
amend CERCLA 120(h). Its proposals are included in this year's 
Military Construction Authorization Act. I believe that the Pentagon's 
proposals are also motivated by pressures from Congress and the 
White House to reduce environmental restoration spending.

There are three proposals:

1) Allow the transfer of property upon which hazardous materials 
have been stored but not released.

This proposal makes sense to me, but I'm not sure that there really is 
a problem that requires legislative change.

2) Allow long-term leases or other conveyances in which the federal 
government still holds the deed even when the property remains 
contaminated.

As far as I can tell, the only purpose of this provision is to skirt the 
requirement that the property be cleaned before transfer. As the 
courts have ruled thus far, a long-term lease is tantamount to a 
transfer by deed. Instead of figuring out ways to avoid cleanup 
before transfer, more effort should be placed into speeding up 
cleanup.

3) Allow the states or EPA to allow the sale of contaminated federal 
property if the contract contains assurances that contamination will be 
addressed.

With regulator approval, this approach would allow the military to 
turn over the principal financial and management responsibility for 
cleanup to the recipient of the property, in return for discount on sale. 
I'm not comfortable with that. Even if the military retains control of 
the cleanup, I think this provision would invite incomplete cleanup 
and down-the-road surprises.

In proposing the changes, Deputy Undersecretary of Defense 
(Environmental Security) Sherri Wasserman Goodman argued that 
the proposed changes would merely subject Federal agencies to the 
same rules that apply to the private sector and state and local 
governments.

However, there is a difference between federal agencies and other 
entities. At other properties, EPA or state regulators can order the 
responsible parties to do cleanup. If there is no responsible party 
with the ability to pay, then EPA Superfund or similar state funds 
may be used. 

At federal facilities, Congress can effectively block cleanup by failing 
to appropriate sufficient funds. EPA, a federal agency, can't tell 
Congress what to appropriate, and at this time the states appear to 
have no enforcement power to insist upon timely cleanup at federal 
properties.

At closing or closed bases, without a strong 120(h), there is a danger 
that reuse authorities - the recipients of federal property - and the 
military will collaborate to avoid reasonable cleanup goals, in the 
hope that the property can be put to more rapid reuse. I am concerned 
that this not only will undermine public health and environmental 
protection. In many cases it may slow reuse, as the insurers and 
financial backers of reuse projects discover, late in the game, that 
they are taking responsibility for contaminated projects.

At active bases, cleanups which are legally completed but which turn 
out to pose risks under new use or ownership will face little or no 
regulatory authority when transfer is eventually proposed.

Most of the delay in the cleanup program - that is, activity that slows 
reuse and transfer - takes place in the investigation and 
characterization phase. I support initiatives to streamline the study 
phase, but I think it's fairly obvious that property should not be 
transferred or otherwise made available for permanent reuse before 
the full extent and nature of contamination is known.

To assure complete and safe cleanup, regulatory agencies must be 
armed with authority to oversee all phases of cleanup. I am not 
satisfied with simple promises by responsible parties, even when 
they are owned by the taxpayer. The legal hammer of 120(h) is 
necessary to ensure public safety and environmental protection, and 
to ensure that the right cleanup process is followed.