Re: "DEFENSE REFORM" ANALYSIS

[Lenny Siegel <lsiegel@igc.org>]

[Here's another analysis of the Defense Reform Act's environmental 
provisions, from Capitol Hill. I have dropped page/line references 
because they don't seem to match the version of the bill that is 
currently in circulation. - Lenny]

TITLE III - H.R. 1778

The following are just SOME of the provisions that are 
CONTRARY to the compromise bill of the 103rd Congress and are 
CONTRARY to the Administration's Superfund principles released 
on MAY 7, 1997.

I. SECTION 301 - REVISION OF METHODS OF 
REMEDIATION. DELETES section 121(b)(1) & (2) of current law 
as it applies to PRIVATE as well as federal facilities. Replaces the 
remedy selection criteria of current law with an entire new set of 
criteria.

* This provision makes a significant departure from the 103rd 
compromise bill and the Administration's principles by changing the 
definition of hot spots to require that hazardous substances are in 
high concentration AND are highly mobile AND cannot be reliably 
retained. The definition requires all three factors. The compromise 
bill in the 103rd and the Administration's principles call for an "or" 
rather than an "and" so that any one factor would allow the 
preference for treatment to be applied. For example, contaminants 
such as dioxin (Love Canal and Times Beach), PCB's (New 
Bedford Harbor), and cyanide are highly toxic but not highly mobile 
and under the language of H.R. 1778 the preference for treatment 
would not apply.

* Refers to a "hazardous substance easement" but fails to spell out 
the authority of the President to acquire easements, use of 
easements, contents of easements, use restriction notices, and 
enforcement of easements as the compromise bill did in the 103rd 
Congress. These provisions are important in protecting people from 
land use changes when institutional controls are employed as part of 
a remedy.

II. SECTION 302 - REQUIREMENT TO CONSIDER 
REASONABLY ANTICIPATED FUTURE LAND USE. DIFFERS 
from the 103rd compromise in two respects:

* Fails to give "substantial weight" to the consensus views of a 
community working group.

* Deletes the requirement that land use information be included in 
the administrative record.

III. SECTION 303 - LIMITATION ON CRIMINAL LIABILITY 
OF FEDERAL OFFICERS, EMPLOYEES, AND AGENTS. By 
broadly pre-empting "the Solid Waste Disposal Act or any other 
Federal or State law" this provision undermines the agreement that 
was a critical part of the Federal Facilities Compliance Act of 1992. 
The conference report was adopted in the House with only three 
dissenting votes. That agreement stated that federal employees, 
including commanders, could not be sued civilly but all federal 
employees were subject to criminal liability like any other person. 
The Administration opposed any such change to the Federal 
Facilities Compliance Act of 1992. (See attached [not included in 
this message] letter dated Feb. 3, 1995 from DOE to 20 state 
Attorneys General.)

The actual language of Section 6001 of the Solid Waste Disposal Act 
is as follows:

"No agent, employee, or officer of the United States shall be 
personally liable for any civil penalty under any Federal, State, 
interstate, or local solid or hazardous waste law with respect to any 
act or omission within the scope of the official duties of the agent, 
employee, or officer. An agent, employee, or officer of the United 
States shall be subject to any criminal sanction (including, but not 
limited to, any fine or imprisonment) under any Federal or State 
solid or hazardous waste law, but no department, agency, or 
instrumentality of the executive, legislative, or judicial branch of the 
Federal Government shall be subject to any such sanction."

This section is opposed by the Administration, state organizations 
and the environmental community.

IV. SECTION 304 - STATE ROLE AT FEDERAL FACILITIES. 
This section amends Section 120 of CERCLA as it applies to all 
federal facilities and changes the agreement between the 
Administration and the states in three major areas:

* Section 304 deletes the authority of a delegated state "to publish a 
timetable and deadline of a completion of any remedial investigation 
and feasibility study." This was one of the key authorities contained 
in the 103rd compromise.

* H.R. 1778 imposes a condition of delegation on the states that 
would effectively pre-empt the applicability of state hazardous waste 
authorities under the Solid Waste Disposal Act despite a 10th Circuit 
Court of Appeals decision in Colorado vs. U.S. that held that state 
hazardous waste authorities apply at Superfund sites.

* Finally, this section of H.R. 1778 overturns an important 
agreement between the Department of Defense and the National 
Governors Association and National Association of Attorneys 
General on how to resolve disputes. It is memorialized in a letter 
sent by the Deputy Secretary of Defenses to the leadership of the 
Commerce Committee.

Under H.R. 1778, in the case of a disagreement between the 
Governor or a state and the head of a Federal agency, the "state shall 
pay or assure the payment of any additional costs attributable to 
carrying out the remedial action selected by the state." However, 
under the compromise bill of the 103rd Congress, the Department of 
Defense supported language enabling the state to bring an action in 
federal district court to compel implementation of the state's selected 
remedy unless the Governor's decision is determined to be arbitrary 
and capricious or not in accordance with law."

Changing this language is a fundamental breach of the agreement 
that was reached between DOD and the states.

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

* Would eliminate DOD's obligation to clean up groundwater to 
Federal Safe Drinking Water Act standards at non-NPL facilities 
where it is relevant and appropriate.

* Appears to eliminate the application of water quality criteria under 
Sections 303 and 304 of the Clean Water Act to cleanup actions at 
non-NPL DOD facilities.

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

This section amends both the Superfund statute and the Solid Waste 
Disposal Act to allow DOD and DOE to terminate the long-term 
operation and maintenance of a completed remedial action "with the 
concurrence of the Administrator or appropriate State or local 
authorities" when the release of a hazardous substance is no longer 
"a threat to human health and the environment."

There are several problems with this language. First, the loose 
wording appears to allow a local authority to concur in lieu of EPA 
or the State. It also does not specify when state concurrence is 
appropriate. Second, the threshold for terminating O & M when a 
release is no longer a threat is contrary to EPA practice and policy. 
EPA would terminate O & M when remediation cleanup goals (i.e., 
MCL's in the case of groundwater) are achieved, or in some cases 
where caps are part of the remedy maintenance must be performed in 
perpetuity. The language in this section could be interpreted to 
establish a different standard for terminating O & M activities.

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

This provision prohibits the DOE from entering into interagency 
agreements, or modifications thereof, at Superfund sites with EPA 
or States unless information on cost, budget authority, and potential 
penalties is provided to Congress.

Subsection (c) defines how 90 days is calculated for the purposes of 
subsection (a) when no such time period is found in subsection (a).

This provision will likely slow down cleanups and restrict the 
management flexibility of the Secretary of Energy.

VIII. SECTION 314 - CLEAN AIR ACT STANDARDS FOR 
MILITARY SOURCES

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

Appears to void part of a pending legal action before the D.C. Court 
of Appeals on EPA's munitions rule.