DEFENSE SUPERFUND CHANGES

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

DEFENSE SUPERFUND AMENDMENTS ARE MOVING

Last year (Fiscal Year 1996) the Defense Department Environmental 
Security office convinced Congress to include in the Defense 
Authorization Act language allowing long-term leases at closing 
military bases, even when cleanup remedies were not in place. This 
year (Fiscal Year 1997), the Senate Armed Services Committee has 
included in its version of the Defense Authorization Bill three 
amendments to the Superfund laws.

1. Restrict the definition of contaminated parcels to those where 
hazardous substances were "known to have been released," deleting 
the other standard: properties where hazardous substances were stored 
for one year or more. This is relatively non-controversial, but I don't 
know of any sites where the old language has turned out to be a real 
problem.

2. Allow EPA to withhold listing a property that would otherwise 
qualify for the Superfund National Priorities List, if cleanup is 
proceeding under other authorities. This has been an issue in several 
parts of the country, including Wisconsin and California, where 
activists and at least some EPA staff believe that Superfund listing 
heightens response. In addition - until DOD implements its Technical 
Assistance for Public Participation program - listing is the only way to 
provide technical assistance grants to community groups. Some states, 
however - such as California - feel that listing would disrupt effective 
ongoing programs, particularly at closing bases that are already 
receiving a great deal of attention.

3. Most significant, the Senate committee is backing the Defense 
Department's proposal to allow the transfer of contaminated federal 
property, if the EPA Administrator (in the case of Superfund NPL 
sites) or state Governor (for non-NPL sites) approves. Specifically the 
proposed change to CERCLA (Comprehensive Environmental 
Response, Compensation, and Liability Act) Section 120(h)(3) says 
that the prohibition on transfer by deed may be deferred if EPA or the 
State determines that (i) the property is suitable for transfer; and (ii) 
the contract of sale or other agreement governing the transfer between 
the United States and the transferee of the property contains 
assurances that all appropriate remedial action will be taken with 
respect to any releases or threaten releases at or from the property that 
occurred or existed prior to the transfer." 

THIS IS A MAJOR REVISION TO THE SUPERFUND LAW. IT 
WOULD APPLY TO ALL FEDERAL FACILITIES, NOT JUST 
CLOSING MILITARY BASES.

Proponents of the change, apparently including US EPA, argue:

* Earlier transfer would make it easier for localities suffering from the 
negative economic impacts of base closure to line up financing for 
new beneficial uses.

* This puts federal facilities on an even footing with privately owned 
sites.

* The obligation to clean up remains. In fact, the Defense Department 
has an active program that identifies and remediates formerly used 
defense sites that were transferred before their level of contamination 
was known.

Opponents of the change argue:

* Other changes in the law, such as CERFA (the Comprehensive 
Environmental Response Facilitation Act) have already made it easier 
to accelerate the transfer of property that is suitable for transfer.

* Unlike private facilities, federal agencies cannot be forced to spend 
money that Congress has not appropriated. To overcome that 
problem, section 120(h) - the prohibition on transfer - gives regulators 
the authority they need to force cleanup.

* Cleanup at most formerly used defense sites is proceeding at an 
extremely slow rate, despite the fact that many of these are used by the 
public.

* Superfund changes should be made as part of the Superfund 
reauthorization process, with full participation by Congressional 
committees with environmental jurisdiction.

At the policy level, this is a debate between people who, on both 
sides, spend their time planning, implementing, and regulating 
cleanup.

However, in the field - where the backhoe meets the road, enactment 
of this proposal would strengthen the bargaining position of those 
military and regulatory officials who are trying to limit actual 
environmental restoration. In this era of tight federal budgets, there is 
constant pressure for communities with closing bases to compromise 
environmental standards to hasten reuse of closing or closed military 
bases. Sometimes certain interests in those communities 
shortsightedly want rapid reuse at the expense of environmental 
protection.

In my opinion, the weakening of the prohibition on transfer would 
weaken the bargaining position of communities that want full, rapid 
cleanup. It might still be possible to convince EPA or state officials 
that transfer-before-cleanup is unsuitable, but it will be difficult. In the 
short run, sweeping contamination under the rug may lead to more 
rapid reuse, but contamination may re-emerge later and undermine 
public health, environmental protection, and even the economic 
benefits of new uses. 

It's better to do it right the first time. That is, follow the current law 
and put all remedies in place before permitting the transfer of 
contaminated federal property.

The Superfund provisions in the Defense Authorization Act next go to 
the Senate floor. The Senate Environment Committee, which has 
jurisdiction over CERCLA, plays no direct role in the debate.

If approved, the legislation goes to a Senate-House conference 
committee. Though the House bill does not include any of these 
provision, many of the members of the House National Security 
Committee are likely to support them. Thus, unless there is a major 
outcry from state officials or community activists, one of the major 
protections in the Superfund law will disappear.

Lenny Siegel