"DEFENSE REFORM" ANALYSIS

[Lenny Siegel <lsiegel@igc.org>]

THE DEFENSE REFORM ACT OF 1997 (H.R. 1778)
analysis by Lenny Siegel

The environmental provisions (Title III) of HR 1778, the Defense 
Reform Act of 1997, appear to be attempt at an end run around the 
Superfund Reauthorization process. Subtitle A (Sections 301-304) 
would amend CERCLA, the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980, affecting non-
federal sites as well as federal cleanup projects. Subtitle B (Sections 
311-315), targeted directly at the Departments of Defense and 
Energy, includes provisions that would amend other environmental 
legislation.

HR 1778 is scheduled for mark-up - that is, modification by the 
House National Security Committee (HNSC) as a whole - on 
Wednesday, June 11. If the Committee asks to bring it to the House 
floor, as a stand-alone piece of legislation, it is likely that it will be 
referred to the two House committees with primary environmental 
jurisdiction, Commerce and Transportation & Infrastructure. That 
would subject the environmental language Title III to the same 
scrutiny and debate as other environmental legislation. However, 
it's probable that once mark-up is completed, the bill will be broken 
up and offered as amendments to other legislation, such as the 
Defense Authorization Act, under floor rules that limit modification. 
That's why national environmental organizations and many state 
officials are urging that the environmental provisions simply be 
stricken from the act.

It's too soon to predict how much momentum Title III has. In fact, I 
don't know yet who is behind it. Though some of its provisions 
appear simply to reinforce existing policy or repeat ideas already in 
Clinton Administration Superfund proposals, most raise serious 
questions. There is no question, however, that if this legislation is 
enacted as is, that it will greatly affect the way that the federal 
government, as well as other responsible parties, approaches the 
cleanup of hazardous waste. The substance of the bill, combined 
with the indirect approach to passage, is likely to generate a 
firestorm of bi-partisan opposition from state officials and public 
stakeholders across the country.

Like most existing cleanup laws, nothing in this bill defines or 
modifies the role or Native American or Native Alaskan tribal 
entities in the environmental regulatory process.

Finally, though the legislation is sponsored by HNSC chairman 
Floyd Spence (R-South Carolina) and ranking Democrat Ronald 
Dellums (D-California), Dellums made clear in the Committee's 
press release that he does not "personally agree with all of the 
provisions contained in the legislation ." In addition to 
environmental reforms, HR 1778 includes titles on Personnel 
Reform, Business Practice Reform, and Miscellaneous Reforms 
designed to streamline Department of Defense operations. (I have 
not reviewed those other titles.)

The following is my preliminary section-by-section analysis of Title 
III of HR 1778. I would appreciate responses from others who can 
better explain better how the proposed language relates either to 
existing law or to the range of Superfund and other proposals 
already under consideration in Washington today. Because of the 
short-time frame I have to review the bill, I am doing this on the 
week-end without full access to my files.

Much of the bill places authority for making decisions in the hands 
of the President, not the Administrator of the Environmental 
Protection Agency. As such, it could transfer authority over key 
environmental decisions at federal facilities from regulatory agencies 
to regulated (polluting) agencies.

SUBTITLE A

SECTION 301. REVISION OF METHODS OF REMEDIATION
(Remedy Selection)

Existing law governing the remediation of hazardous waste 
establishes a preference for treatment that reduces the toxicity, 
mobility, or volume of contaminants. HR 1778 would remove that 
preference, putting permanent treatment on par with containment or 
other engineering controls, except for hot spots. Hot spots are 
defined as discrete areas where "hazardous substances, pollutants, 
or contaminants" either are "present in high concentrations, are 
highly mobile, and cannot be reliably contained" or "would present a 
significant risk to human health or the environment." However, 
containment may be still selected as the remedy for a hot spot in a 
landfill, mining site, or a similar facility if it is small and "not readily 
identifiable and accessible." Furthermore, it provides for 
institutional controls, such as restrictions on land or water use, but it 
offers no mechanism for enforcing them over the life of the risk.

This section may actually be more moderate than versions in other 
pending pieces of legislation, but if enacted it would dramatically 
limit the amount of cleanup conducted at all sites subject to the 
legislation and significantly reduce the incentive to develop 
innovative cleanup technologies.

SECTION 302. REQUIREMENT TO CONSIDER REASONABLY 
ANTICIPATED LAND USE

Current law already provides for the consideration of "reasonably 
anticipated future land use" in the selection of soil and sediment 
remediation strategies. This section appears to clarify the process for 
determining that anticipated use, possibly giving the Defense 
Department and Energy Department final decision-making authority 
at their sites. It states, "In identifying reasonably anticipated future 
land uses, the President shall consider factors that include the 
following:"

"(A) views expressed by members of the affected community."

(B) Where transfer of a federal property, such as from a base 
closure, is scheduled, "any joint consensus recommendation" of a 
technical review committee, restoration advisory board, local land 
use redevelopment authority, and another appropriate State agency 
or an Energy Department citizen advisory board.

(C) The land use history, current uses, and development patterns of 
the facility and surrounding properties.

(D) State and federal land use plans, including national parks, and 
state water protection plans.

(E) Current local zoning and land use plans.

(F) The potential for economic redevelopment.

(G) Proximity to population, sensitive ecosystems, and unique 
historic or cultural resources.

(H) Plans by property owners.

While the list is properly inclusive, the language appears to give the 
federal government the ability to impose unilaterally land use 
restrictions as a substitute for cleanup. At closing military bases, this 
may mean that the responsible armed service could use this 
legislation to make its own determination of reasonably anticipated 
future land use as a way of holding down cleanup costs. Currently 
there is more give-and-take in the process, although local 
governments have urged legislation reinforcing their land use 
planning jurisdiction.

SECTION 303. LIMITATION ON CRIMINAL LIABILITY OF 
FEDERAL OFFICERS, EMPLOYEES, AND AGENTS.

Simply, the section states that government employees and agents 
shall not be held criminally liable for failure to take required 
response actions at federal facilities unless they fail to fulfill their 
obligations to request money to meet those agreements under 
Executive Order 12088, or if appropriated funds were available. 
That is, government employees wouldn't be thrown in jail because 
Congress does not appropriate adequate funds to meet cleanup 
agreements.

I don't know that anyone has ever been jailed under the conditions 
addressed by this section, but I have heard high level federal 
officials testify that they were worried about the potential. Of 
course, it's hard to tell whether the fear was genuine or just a ploy to 
extract more money from Congress.

SECTION 304. STATE ROLE AT FEDERAL FACILITIES
(Transfer of Authorities)

This section would allow the EPA Administrators to transfer to state 
regulatory agencies Superfund (CERCLA) regulatory authority 
currently held by EPA at federal facilities. States with strong 
regulatory programs have long argued for such transfers, but 
environmental activists want strict conditions on the transfer of 
authorities as way of preventing a race to the bottom, in which states 
compete for investment by further weakening their environmental 
laws. In particular, environmental justice groups in the south seek to 
retain a federal role as a way of balancing the historically racist 
practices of their state governments.

The process, detailed in this section, for determining whether to 
transfer authorities is long and complex, and I have not participated 
directly in this debate for a few years. But except for the following 
provision, it appears to be headed in the right direction. I have not 
yet seen any reactions from state representatives, however.

Where states exercise CERCLA authority, the section provides for a 
dispute resolution procedure that ends with the head of the Federal 
department or agency, on the one hand, and the state's governor, on 
the other. So far, so good. But the follow-up provision is 
frightening: "If no agreement is reached between the head of the 
Federal department, agency, or instrumentality and the Governor, 
the State may issue the final determination, except that the state shall 
pay or assure the payment of any additional costs attributable to 
carrying out the remedial action selected by the State."

That is, if the state is dissatisfied with a federal department's 
proposal to deal with hazardous waste clearly released by that 
department, and it wants to provide more extensive protection of 
public health and the environment, then the polluter no longer must 
pay. The state picks up the tab.

SUBTITLE B

SECTION 311. STANDARDS FOR REMEDIAL ACTIONS 
CONDUCTED AT DEFENSE FACILITIES NOT ON THE 
NATIONAL PRIORITIES LIST.

The HNSC press release states: "Unlike either the private sector or 
any other federal agency, current law requires a higher standard of 
cleanup for DOD [Department of Defense] contaminated sites not on 
the National Priorities List (NPL). This provision would apply the 
same standard to the cleanup of DOD's non-NPL sites as is 
currently applied to the private sector and to other federal agencies."

Specifically, Section 311 exempts non-NPL Defense facilities from 
requirements "relating to the attainment of a relevant and appropriate 
standard, requirement, criteria [sic], or limitation" - commonly 
known as ARARs. That is, when a remedy is being selected, state 
and local laws governing or relating to cleanup could not be used to 
impose stricter standards than federal ones unless the property is on 
the NPL.

I believe that the HNSC position misunderstands or mis-states the 
current situation. In many (most?) states, the cleanup of non-federal 
non-NPL sites is governed by other laws. In fact, those laws often 
define the requirements which are also imposed through the 
CERCLA ARAR process. Despite a favorable appeals court 
decision, the direct applicability of state laws to federal cleanup sites 
remains in dispute.

I await the comments of others more familiar with the legal 
intricacies of ARARs, but it appears that this provision would 
actually move Defense facilities from parity with non-federal sites to 
a position of inferior regulation.

SECTION 312. AUTHORITY OF SECRETARY OF DEFENSE 
AND SECRETARY OF ENERGY TO TERMINATE LONG-
TERM OPERATION AND MAINTENANCE OF REMEDIAL 
ACTIONS AND CORRECTIVE ACTIONS.

Under both CERCLA and RCRA Section 3004 (Corrective Action), 
the Secretaries of Defense and Energy are authorized to "terminate 
the long-term operation and maintenance of a completed remedial 
action in any case in which the Secretary determines, with the 
concurrence of the Administrator or appropriate State and local 
authorities" that the contamination is no longer a threat.

I am confused by this section. If "concurrence" means that 
regulators can veto the termination of operation and maintenance, 
then I don't know what this section adds to current laws. If it merely 
means they will have the opportunity to comment on the regulated 
agency's plans, then it could lead to the widespread premature halt 
of activities - be they treatment or simply institutional controls - 
required to protect public health and the environment.

SECTION 313. NOTIFICATION TO CONGRESS OF COSTS OF 
DEPARTMENT OF ENERGY ENVIRONMENTAL 
COMPLIANCE AGREEMENTS.

This section requires the Energy Department, when negotiating a 
cleanup or other environmental agreement with regulatory agencies, 
to notify Congress of the long-term and annual costs of such an 
agreement before entering into such an agreement. Congress 
currently plays no statutory role in such negotiations.

While the actual disclosure of cost estimates is generally a good 
thing, the intent of this provision appears to be to give members of 
Congress who are hostile to cleanup the information they need to 
oppose more effectively activities necessary to address the enormous 
environmental threat posed by contamination at the nation's nuclear 
weapons production complex.

As written, this section ignores the efforts of the Energy 
Department, regulators, and other stakeholders, working through 
the Federal Facilities Environmental Restoration Dialogue 
Committee and other forums, to address the tension between 
regulatory requirements and the federal budget.

SECTION 314. CLEAN AIR ACT STANDARDS FOR MILITARY 
SOURCES.

This section appears to extend Clean Air Act exemptions which are 
already in effect on the date of enactment to new standards being 
developed by EPA to limit ozone (smog) or particulate pollution.

I don't know this area well, but it would appear to allow the military 
to continue indefinitely to pollute the air simply because its national 
security activities are considered more essential than those of other 
polluters.

SECTION 315. AUTHORITY OF ADMINISTRATOR OF 
ENVIRONMENTAL PROTECTION AGENCY WITH RESPECT 
TO APPLICATION OF SOLID WASTE DISPOSAL ACT TO 
STORED MILITARY MUNITIONS.

This states, "The authority of the Administrator ... includes the 
authority to provide for unexpended military munitions in storage to 
not be considered hazardous waste for purposes of this subtitle." It 
appears to be designed to protect the storage provisions of the 
Military Munitions Rule, promulgated by EPA in February, 1997, 
against litigation. Currently the Military Toxics Project is 
challenging the Munitions Rule in court, arguing, among other 
concerns, that EPA may not legally to give the Defense Department 
authority to regulate its own hazardous waste storage. This 
provision invents the term "unexpended munitions" and says that 
they aren't wastes.

Though the military's storage of waste conventional munitions has 
not been a problem, I do have concerns about the principle of self-
regulation. I'm even more concerned about the executive branch 
overstepping itself in a Congressionally mandated rulemaking, and 
then (it appears) seeking to change the statute to justify the 
promulgated rule retroactively.

I APOLOGIZE IF I HAVE MISCHARACTERIZED ABOVE 
EITHER EXISTING LAW OR THE PROVISIONS OF H.R. 
1778. MANY OF US HAVE BEEN WORKING, IN MULTIPLE 
VENUES, TO UNDERSTAND AND RESOLVE COMPLEX 
ISSUES REGARDING CLEANUP AND FEDERAL 
ENVIRONMENTAL COMPLIANCE. TO EXPECT FULL 
CONSIDERATION OF THE ISSUES, LET ALONE AN 
ACCURATE READ OF THE LEGISLATIVE PROPOSALS, IN 
LESS THAN A WEEK IS UNREALISTIC.