STUDY IT!

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

STUDY, DON'T CHANGE CERCLA 120 (h) (3)
(Re: Dirty Transfers)
Upon reviewing the final language of Section 346 of the Senate Defense 
Authorization bill and discussing the language with attorneys familiar 
with the issues, I have concluded that the legislation is premature and 
unacceptable.
(As a refresher, this section would modify Section 120 (h) (3) of 
CERCLA to allow the transfer, to non-federal parties, of contaminated 
federal property. Since the House Defense bill does not contain similar 
language, the provision will go to a joint conference committee after 
the Senate passes the bill, currently expected on Wednesday, July 10.)
Here's why:
1) The Smith Amendment (Section 346) is a piecemeal modification of 
CERCLA that applies to all federal facilities, not just those pieces of 
the government normally governed by the Defense Authorization Act. No 
one has ever presented documentation of the potential scope of this 
legislation. As other agencies downsize and seek to transfer property, 
how many properties might be affected?
2) The proposed waiver of sovereign immunity for deferred facilities 
might be interpreted to preclude such a waiver at other former federal 
facilities. The legislation is opening a much larger can of worms than 
it proposes to address. Any legislation dealing with state authority 
over CERCLA cleanups should clarify this issue. (The "waiver of 
sovereign immunity" clarifies, from the federal point of view, that 
states can enforce their hazardous waste laws upon federal agencies. As 
currently written, however, the waiver is not fully recognized by the 
Defense Department, and some courts have held that it does not apply at 
former federal properties.)
3) There may be circumstances in which some of those concerned about 
the proposed legislation would favor transfer to private parties 
willing to finance cleanup, but the language does not provide 
sufficient guarantees that such a party would have the technical 
capability and financial commitment to carry out cleanup, particularly 
in the face of unforeseen remediation challenges. (I'm not sure yet 
where I stand on this approach.)
4) No one has presented any evidence of a pressing need for Section 
346. Most, if not all closing military bases that would be suitable for 
transfer under this provision are eligible for long-term leases and 
lease-to-purchase agreements.
Since there is no emergency, it would make more sense for this year's 
legislation (instead of the Senate language) to mandate a study of the 
impact of the existing 120 (h) (3) on the transfer of federal 
properties as well as the potential impact of the proposed changes. The 
study should be carried out by EPA or the White House, because its 
impact goes well beyond the Defense Department. Such a study should be 
carried out in consultation with states, tribes, local governments, and 
affected communities, as well as affected federal agencies.
Lenny Siegel