Re: "DEFENSE REFORM" ANALYSIS

[Lenny Siegel <lsiegel@igc.org>]

I received the following analysis of HR 1778's environmental language 
from a state source.

SUMMARY OF ENVIRONMENTAL REFORMS
 SUBTITLE A--SUPERFUND REFORMS
 GENERALLY
 DEFENSE REFORM ACT OF 1997

Sec. 301

Deletes CERCLA section 121(b)'s general cleanup provisions, and
replaces with new remedy selection criteria, most of which are
borrowed from HR4916, which passed out of the Commerce and Public
Works and Transportation Committees in 1994 with broad support (at
the time). The bill does away with the preference for treatment
except for hot spots, which are partially defined in the bill, but
are to be further defined through regulations. Although the
definition is based on HR4916, there are a few potentially
significant changes.

The preference for treatment of hot spots at mining sites and
landfills is limited in certain instances. In addition, the
President is allowed to defer remedial action when waste can be
adequately contained, and a more cost-effective innovative
technology is expected to be available in the near future. These
provisions likewise echo those in HR4916.

The Bill provides for generic remedies, and requires land use
restrictions, relied upon in determining that a remedy is
protective, to be specified. It also allows the restrictions to be
incorporated into a hazardous substance easement; although, unlike
HR4916, it does not expressly create such easements.

Remedies are to be protective of reasonably anticipated future uses
of land.

Specific groundwater provisions are not included.

sec. 302

Sets forth the factors to consider in determining reasonably
anticipated uses. These are almost identical to HR 4916, except
they allow various community boards to have input, and do not
require those boards to reach consensus.

Sec. 303

Adds to CERCLA a criminal liability exemption for failure to comply
with a requirement to take a response action at a federal facility
unless the federal representatives comply with Executive Order
12088, or appropriated funds are available for the cleanup.

Sec. 304

Provides for the transfer of EPA authorities at federal facilities
to qualified states, and incorporates much of the language that
states negotiated as part of HR 4916 with some notable exceptions.
For example, although the Governor is allowed to make the final
remedy determination, the state is required to "pay or assure the
payment of any additional costs attributable to carrying out" the
selected remedy. The enforcement authorities, in particular the
obligation of the federal government to pay penalties for non-
compliance, are not specified. In addition, states are precluded
from exercising EPA CERCLA authorities and its own SWDA authorities
at the same site and the same time with respect to the same
release.

 SUBTITLE B--SUPERFUND AND OTHER
 ENVIRONMENTAL REFORMS APPLICABLE
 TO DEPARTMENT OF DEFENSE OR DEPARTMENT OF ENERGY

sec. 311

Exempts non-NPL DOD facilities from relevant and appropriate
requirements.

sec. 312

Amends both CERCLA and RCRA section 3004(u) (corrective action) to
allow DOD and DOE to terminate long-term O & M where they
determine, with the concurrence of the Administrator or
"appropriate State or local authorities", that there is no longer
a threat.

sec. 313

Prohibits DOE from entering into 120(e)(2) compliance agreements
without first providing detailed cost information to Congress,
including costs of alternatives and estimates of monetary penalties
that may be assessed by regulators for violations of the IAG.

sec. 314

Grandfathers in exemptions for armed services from new ozone and
particulate requirements.

sec. 315

Grants EPA authority to promulgate a rule finding that stored
expended military munitions are not hazardous wastes.

 COMMENTS ON HR 1778

Sec. 301, Remedy Selection

The cleanup provisions raise many of same problems that were raised
during the 1994 debate, e.g. what is a hot spot and when should the
preference for hot spots be deferred or avoided. In addition, some
subtle changes could raise other concerns; for example,

 HR1778 requires the President to identify and select a remedy
 that "minimizes exposures". HR4916 required remedies that
 "prevents exposures in excess of protective concentration
 levels..." The change in language could be interpreted as
 signaling more of an emphasis on controlling exposure, and
 less on reducing contamination.

 The bill creates the following new criteria to consider in
 selecting remedies: "the results of any risk assessments ...",
 and the "costs, both direct and indirect of the remedy".
 Perhaps these mean that the remedy must be protective and
 cost-effective, but that is not what they say. Construction
 of these provisions is likely to be controversial and lead to
 litigation.

 The definition of "hot spot" has been changed. Previously, a
 hot spot had to be in high concentrations, highly mobile or
 could not be reliably contained. HR1778 replaces "or" with
 "and". Thus, extremely high concentrations of immobile
 substances like organochlorine pesticides, dioxin, furans and
 PCBs would not necessarily be considered hot spots. Also,
 since the reliability of containment is vigorously disputed,
 the designation of hot spots using this criteria could be rare
 and rancorous.

 In addition, HR4916 provided that a third criterion for
 designation was that the area "would present a significant
 risk to human health or the environment should exposure
 occur." The underlined text has been deleted from the new
 bill thus creating ambiguity regarding the meaning of this
 criterion.

 HR4916 required treatment of hot spots "unless an appropriate
 treatment technology is unavailable or is available only at
 unreasonable cost." HR1778 requires treatment to the maximum
 extent practicable. Although the new language is closer to
 the existing law, the question of what is practicable has lead
 to litigation and lengthy disputes.

 By dropping HR4916's provisions regarding hazardous substance
 easements, this bill does not address the fact that in many,
 if not most, jurisdictions, hazardous substance easements are
 not legally recognizable. Inclusion of deed restrictions in
 such an easement, therefore, would be a useless exercise.

Sec. 302, Land Use

By de-emphasizing the need for community advisory boards to reach
consensus on the future intended land use of a site, the bill makes
it easier for the agency to take upon itself the decision-making
function that would ideally rest with such boards. In addition,
the bill, unlike HR4916 would not require the President to accord
substantial weight to citizen group recommendations, and does not
require all land use information and presidential findings to be
included in the record, thereby making it difficult if not
impossible to challenge unilateral decisions by the President.
These land use issues are particularly problematic at federal
facilities where the polluter makes the cleanup decisions.

Sec. 303, Criminal Liability Exemption

It should be noted that CERCLA establishes no criminal liability
for failure to take a response action; therefore, there is no need
to provide protection from criminal liability for failure to comply
with a requirement to take a CERCLA response action. The language,
however, would also repeal criminal liability of federal
representatives under RCRA and any other Federal or State law. It
would, therefore, preempt state law and repeal the criminal
liability provisions of the Federal Facility Compliance Act, which
provisions were carefully considered and supported by a wide
consensus of opinion, including states.

Phrasing the amendment in the negative leads to confusion. The
provision would be clearer if it stated positively when officers
could be criminally liable, e.g. when they do not request
sufficient money to enable them to comply with cleanup
requirements.

The reference to an executive order is problematic since such
orders can be withdrawn or modified at any time. Rather, the
specific requirements of the executive order as appropriately
modified, should be codified in the Act.

In addition, the executive order, although issued long after the
enactment of CERCLA and SARA, does not explicitly refer to
obligations under CERCLA; rather, it names TSCA, FWPCA, SDWA, CAA,
SWDA, AEA, FIFRA, the Noise Control Act and the Marine Protection,
Research, and Sanctuaries Act. Thus, it has no application to
CERCLA response actions.

Further, the executive order imposes requirements only on "the head
of each Executive agency" to request sufficient funds; it therefore
has no application to officers, employees, or agents other than
agency heads. Under this bill, such employees would not be subject
to criminal liability even though they refused to request
sufficient funding to comply with legal requirements.

Subparagraph 2 is too vague; funds can be made unavailable through
many means, at many levels, and for many reasons. This language
could precipitate creative ways of avoiding liability apart from
that anticipated by the drafters of this amendment.

Sec. 304, Transfer of EPA Authorities at federal facilities to
qualified states.

To accept a transfer of authorities at federal facilities, a state
must agree to implement the remedy selection provisions of the Act.
States have advocated that they be allowed to use their own laws so
long as such laws are consistent with goals and objectives
articulated in the Act; for example, that selected remedies be
protective and cost-effective. In addition, the bill would preempt
states from enforcing RCRA if they accept the transfer of CERCLA
authorities. States are adamantly opposed to preemption of state
law, and object to any provisions that would limit state discretion
at federal facilities thereby allowing such facilities preferential
treatment.

The bill would also radically change HR4916, which included
language negotiated between states and the administration, by
forcing a state to pay for any incremental cost increase if its
selected remedy were more expensive than that chosen by the
polluting federal agency. Such a provision makes the transfer of
authority illusory and provides privileges to federal polluters
obviously not enjoyed by the private sector.

The bill provides that interagency agreements (IAGs) are
enforceable by the state or federal government. However, section
310 currently provides that IAGs are enforceable by any person.
This inconsistency will undoubtedly lead to litigation, and could
possibly result in the loss of rights currently available to
citizens.

The Bill allows states to apply for any authorities vested in the
Administrator under section 120, except for (h)(2). Such
transferable authorities would include the establishment of the
national Compliance Docket, ensuring that preliminary assessments
at federal facilities are conducted, and that appropriate
facilities are included on the NPL. It does not make sense to have
such national authorities transferred to individual states.

The provisions negotiated by the states in HR4916 specified clear
enforcement authorities, including the ability to establish
schedules for investigations and remedies; however, these
provisions have not been included in this bill. Lack of clarity
will undoubtedly lead to litigation with federal facilities over
the scope of state authority. Such authorities should be
recognized beyond question so precious resources can be spent on
cleanup, not litigation.

Sec. 311, Elimination of "RARs" at non-NPL federal facilities

The only reason why non-NPL federal facilities comply with relevant
and appropriate standards is because of the Administration's policy
that federal polluters are the lead agency at non-NPL sites, and
are required to complete cleanups pursuant to CERCLA.
Unfortunately, this ambiguous authority leads to contentious
disputes with states over their rights to exercise independent
authority. If federal facilities would submit to appropriate state
authorities in the same fashion as private parties, compliance with
relevant and appropriate requirements would not be required, unless
such requirements are included in state law provisions. Without
regulatory oversight authority, however, the imposition of "RARs"
provide some assurance that a certain level of acceptable cleanup
will be met; for example, maximum contaminant levels under the safe
drinking water act.

Sec. 312, Authority to terminate Operations and Maintenance (O & M)

The authority to terminate O & M is available under current law;
this provision is therefore unnecessary and confusing in that it
appears to recognize lead agency authority of local governments.
Under current law, only EPA or a state acting as lead agency could
approve of termination, and only when the remedial action goals of
the ROD have been achieved. This provision could therefore create
litigation and loopholes where a problem has not even been
identified or discussed in any forum.

Sec. 313, Prohibition against IAGs before submission of budgetary
information to Congress

This requirement would complicate and delay an existing arduous
process. In addition, the implication of this legislation is that
cleanup requirements and schedules would be driven in the first
instance by the budget rather than vice versa. This approach is
unacceptable to states and the public as is explained thoroughly in
the Federal Facilities Environmental Restoration Dialogue Committee
Report.

Sec. 314, Ozone and particulate exemptions for armed services

The new proposed EPA regulations regarding ozone and particulates
are extremely controversial, with cities, states, industries and
experts arguing they are overly conservative and would impose
unjustifiable cost increases. If, despite the opposition, the
federal government decides to promulgate these rules, it must be
held to the same standard.

Sec. 315, Grant of Authority to EPA regarding munitions

This question may be in litigation as a result of the public
interest lawsuit challenging the EPA munitions rule.