TX AG RESPONSE TO 346 AMMEND

[Aimee Houghton <aimeeh@igc.org>]

From: Aimee Houghton <aimeeh@igc.org>

July 17, 1996

 The 1997 Defense Authorization bill, S. 1745, and the companion 
House bill will soon be proceeding to conference. Section 346 of S. 1745 
was unacceptable as originally written; and it remains unacceptable as 
amended on the floor prior to passage. The Department of Defense (DoD) 
and the federal government have made too much progress in the federal 
cleanup program during the past few years to take such a giant step 
backwards. Thus, I strongly urge that Section 346 be deleted in conference.

 As amended, Section 346 would allow transfer of contaminated federal 
property before all necessary action to protect human health and the 
environment is taken, if certain statutory conditions are met. I note 
first that although Section 346 was initially promoted by the DoD, it 
applies by its terms to all federal property, including property transferred 
by the Department of Energy (DoE), Department of the Interior, and any 
property under the control of the General Services Administration. Thus, 
the ramifications of Section 346 will be felt far beyond DoD. It is unclear 
to me that we have fully considered the breadth of Section 346 and 
whether we fully appreciate the fundamental change it represents with respect 
to the federal government's cleanup obligations.

 Second, as amended, Section 346 of S. 1745 now contains an amendment 
to CERCLA Section 120(a)(4) in addition to the substantial amendment to 
Section 120(h)(3). The proposed change to CERCLA Section 120(a)(4) may 
establish or bolster a very troubling presumption that previously transferred 
federal property is not subject to the waiver of the federal government's 
sovereign immunity contained in CERCLA. This could have enormous impact 
on state regulatory authority with respect to DoD's Formerly Used 
Defense Sites program (FUDS program), DoE's Formerly Utilized Site 
Remedial Action Program (FUSRAP), or any other property previously 
transferred during the past decades by a federal agency.

 Furthermore, Section 346 of S. 1745 may contain certain provisions 
which are at odds with 42 U.S.C. Section 9662. (42 U.S.C. Section 9662 
conditions any obligation of the federal government under CERCLA upon the 
appropriation of federal funds.) A significant amendment to CERCLA such
as that set forth in Section 346 should only be done if CERCLA is 
amended on a comprehensive basis. In this connection, press accounts 
indicate that the leadership in Congress has declined to move stand-alone 
legislation to amend those portions of CERCLA which would enable local 
communities to redevelop private Brownfields sites on the grounds that 
CERCLA reauthorization should be done on a comprehensive basis. Yet, 
Section 346 of S. 1745, (an authorization bill), would amend CERCLA for 
all federal property in a piecemeal fashion. Such significant amendment 
to CERCLA as set forth in Section 346 should only be done after the 
appropriate legislative committees have had an opportunity to consider 
the full ramifications of the proposed amendment. 

 In this case, the committees of jurisdiction in the House did not 
have the opportunity to consider the proposed amendment. Furthermore, the 
public, the states, and our communities were never given a chance to 
formally comment on the proposed amendment or on the new way the federal 
government intends to do business. Given the potential shift of liability 
to our communities and the potential imposition of unfunded mandates upon 
state and local governments, I believe that our citizens deserve better 
than a backdoor amendment to CERCLA through the 1997 Defense Authorization 
bill. This is especially true because no case has been made to show the 
need for the proposed changes. Indeed, experience in Texas at Bergstrom 
Air Force Base and Chase Naval Air Station indicates that redevelopment 
and job creation can readily proceed under CERCLA as it is currently 
written.

 Again, I strongly urge that Section 346 of S. 1745 be deleted from 
the final provisions of the 1997 Defense Authorization bill during 
conference.

Dan Morales
Attorney General