SMITH 120 H 3 AMENDMENT PASSES

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

SECTION 346 SUBSTITUTE PASSES
On Friday, June 28, the U.S. Senate accepted, without objection, the 
Smith Amendment (#4409) to the Fiscal Year 1997 Defense Authorization 
Action (S. 1745). The Amendment significantly modifies the original 
Clinton Administration proposal to weaken Section 120 (h) (3) of CERCLA 
(the Superfund law) by allowing the transfer of federal facilities to 
non-federal agencies before remedial action is taken - that is, 
remedies are in place.
The Smith Amendment expands the conditions that limit dirty transfers 
- technically, the deferral of Section 120 (h) (3). Like the original 
Armed Services Committee language, it says that the EPA Administrator 
or State Governor must determine that "the property is suitable for 
transfer for the use intended by the transferee." It also mandates a 
formal public notice and 60-day comment period.
Furthermore, the Administrator or Governor must determine that "the 
deed or other agreement proposed to govern the transfer between the 
United States and the transferee of the property contains [the 
following assurances]:"
"(I) provide for any necessary restrictions to ensure the protection of 
human health and the environment;
(II) provide that there will be restrictions on use necessary to ensure 
required remedial investigations, remedial actions, and oversight 
activities will not be disrupted;
(III) provide that all appropriate remedial activities will be taken 
and identify the schedules for investigation and completion of all 
necessary remedial action; and
(IV) provide that the Federal agency responsible for the property 
subject to transfer will submit a budget request to the Director of the 
Office of Management and Budget that adequately addresses schedules, 
subject to Congressional authorizations and appropriations."
When all remedial action has been taken, the federal government shall 
"execute and deliver to the transferee an appropriate document 
containing a warranty that all such remedial action has been taken..." 
In addition, the language states that the use of this provision shall 
not affect the rights and obligations of a Federal agency with respect 
to property transferred under the deferral provision.
Finally, the language clarifies that the waiver of sovereign immunity - 
that is, the federal statutory basis for state enforcement powers - in 
CERCLA 120 (a) (4) extends to facilities subject to deferral (dirty 
transfer) provision. This appears to answer a major concern of state 
Attorneys General, but some may still push for a stronger change.
The Smith Amendment was hammered out in negotiations among 
representatives of both the Senate Armed Services Committee and the 
Senate Environmental and Public Works Committee, which has principal 
CERCLA jurisdiction.
Key Senators from those committees engaged in a Senate-floor colloquy 
designed to clarify the legislative intent of the language. (See 
Congressional Record, June 28, 1996, pp. S7241-S7243.) In response to a 
question from Senator Carl Levin (D-Michigan), Armed Services Chairman 
Strom Thurmond (R-South Carolina) confirmed: "Nothing in the amended 
section 346 reduces or otherwise changes the responsibility of the 
United States for cleaning up contamination at its facilities." 
In response to a questions from Senators Max Baucus (D-Montana) and 
Frank Lautenberg (D-New Jersey), Senator Robert Smith (R-New Hampshire) 
responded: "It is my understanding that the triparty agreements will 
remain unaffected by this amendment. We do not intend that this 
provision affect the pace of cleanup or shift costs from the Federal 
government to the States.... Triparty agreements have proven to be an 
effective tool to coordinate the cleanup efforts at Federal facilities. 
These agreements should be used where appropriate, and nothing is this 
amendment would impede the ability of Federal regulatory agencies and 
states to enter into such agreements." (Presumably, this also applies 
to two-party agreements at non-"Superfund" sites.)
The approved version of Section 346 appears to provide organized, 
empowered communities with the tools that they need to control dirty 
transfers, but it might still open the door to inappropriate deals 
between the military and developers in areas where there is no existing 
local opposition.
The entire Defense Authorization bill is scheduled for a Senate vote on 
Wednesday, July 10. It is extremely unlikely that any changes will be 
made in Section 346 before that date. However, when the bill goes to 
House-Senate conference, there is again plenty of room for 
negotiations. The House Defense Authorization bill contains no language 
amending CERCLA 120 (h) (3), so further modification is quite possible. 
It depends, to a large degree, upon the ability of Representatives on 
the House's environmental committees - particularly the Commerce 
Committee - to inject themselves into the process.
Environmental advocates and state Attorneys general have at least two 
weeks to determine whether to urge deletion of the entire section or to 
press for additional changes. For example, they may seek further 
modifications, including additional publication participation 
requirements - involving Restoration Advisory Boards and their 
counterparts - or the strengthening of the waiver of sovereign 
immunity for formerly used defense sites. 
When the Defense Authorization Act is finally passed by both House of 
Congress, there is still a good chance that President Clinton will veto 
the bill, not over environmental issues, but over big-ticket items such 
as ballistic missile defense. In that case, the language will be frozen 
but actual implementation of the provision will be delayed until some 
version of the Act is signed into law.

Lenny Siegel