CA & CO A.G.'s on 120 (h) 3

[Aimee Houghton <aimeeh@igc.org>]

From: Aimee Houghton <aimeeh@igc.org>

***** This is a long file ****

CALIFORNIA AND COLORADO ATTORNEY'S GENERAL JOINT LTR ON 120 (H) 3

Attorneys General Gale Norton (CO) and Dan Lungren (CA) have written a 
joint letter to Senators Thurmond and Nunn, expressing their concern 
about Section 346 of the Senate Defense Authorization Bill (S.1745).

As Lungren and Norton are Republicans, this letter serves to highlight 
that the concern that Section 346 will eviscerate states' and communities' 
protection from future liability--currently provided for in CERCLA 
120 (h)(3)--is a bi-partisan issue.

The following excerpts points out key concerns around the soveriegn 
immunity waiver (see fifth paragraph of this excerpt), unfunded mandates
for states, formerly used defense sites (FUDS), and finally a position that 
have yet to see other states take--that there may be situations where we
pre-cleanup transfers are appropriate:

"The proposed language allowing pre-cleanup tranfers does not contain 
the safeguards necessary to ensure that the states and their citizens 
are not saddled with the cleanup of former federal sites. Practical 
experience and caselaw tell us that, once property is tranferred from 
federal ownership, the government is hesitant to take responsibility 
for cleanup.

"There may well be situations in which pre-cleanup transfers are 
appropriate. For example, it would be beneficial to transfer land to a 
privare company that would agree to cleanup up the property at no cost 
to the taxpayers. In that situation, however, there would have to be 
appropriate safegurads to ensure that cleanup does occur. For 
instance, we might limit property available for transfer to low-risk 
sites, and we might require tranferees to submit a bond or appropriate 
insurance. Most importantly, however, we must clarify the sovereign 
immunity waiver in CERCLA to ensure that the federal government remains 
liable if a planned cleanup by an outside party does not occur.

"These types of safeguards are necessary to avoid the situation in 
which the private party fails to do a cleanup, for example through 
bankruptcy, and then the federal governement disclaims reponsibility. 
In other words, the federal government must be ultimately responsible 
for the contamination it has caused and not leave its cleanup as an 
unfunded mandate for the states.

"Cleanups at formerly used defense sites transferred to third parties 
are at the bottom of the Defense Department's priority list and are 
languishing because cleanup money has not been allocated. In Colorado, 
a former air force bombing range is known to contain unexpolded 
ordnance. It is suspected that some of that ordnance may be present in 
areas frequented by recreational users. Yet, the air force says it 
cannot perform the surveys necessary to locate those hazards until at 
least 1997 because of funding constraints.

"Case law poses an additional barrier. In several litigated cases, the 
federal government successfully argued that the waiver of sovereign 
immunity contained in section 120(a)(4) of CERCLA does not apply where 
the federal agency is no longer the owner/operator of the site. Thus, 
once the federla government has tranferred property, states could be 
foreclosed from ensuring that federal agencies address past contamination.

"Colorado and California, like many other states, host a number of 
closing bases and formerly used defense sites. Like many other states, 
we are anxious to have these properties cleaned up and returned to 
productive use. We are mindful of funding limitations, and desirous of 
using whatever creative approaches we can to achieve efficient and 
effective cleanups. Pre-cleanup tranfers may well be such a creative 
appraoch. We must, however, ensure that this appraoch does not result 
in the states being shouldered with the costs of cleaning up former 
federal sites, or worse, does not result in the situation in which 
those sites lay unused and unproductive forever."

Aimee Houghton