NORTON TESTIMONY

[Lenny Siegel <lsiegel@igc.org>]

TESTIMONY OF GALE NORTON
ATTORNEY GENERAL OF THE STATE OF COLORADO
BEFORE THE HOUSE COMMITTEE ON NATIONAL SECURITY
ON H.R. 1778, THE DEFENSE REFORM ACT OF 1997
JUNE 17, 1997

 I appreciate the opportunity to express my views on the
environmental provisions contained in Title III of H.R. 1778, the
Defense Reform Act of 1997. Although I support efforts to
streamline the federal facility cleanup program, thereby
maximizing the benefits of each dollar spent, I believe that
Title III should be deleted from the bill. My objections to this
title are based on both procedural and substantive grounds.

 In summary, Title III of H.R. 1778 has not been subjected to
any review or comment by the public, the states, or regulated
parties. Further, the provisions of Title III create substantial
problems for the states. In addition, they place the federal
government in a more advantageous position than private
businesses in hazardous waste cleanups.

 LACK OF PUBLIC COMMENT

 The provisions included in Title III are not only extremely
wide-ranging, but they are also highly controversial and,
therefore, should be subject to full public scrutiny and debate.
For example, Section 301 affects, not just federal facilities,
but all sites being cleaned up under CERCLA. Thus, this
legislation will affect thousands of responsible parties,
hundreds of thousands of citizens living near and impacted by
contaminated facilities, and dozens of state and territorial
governments--not to mention several federal agencies. For this
reason, H.R. 1778 must be subjected to full and adequate review
by all affected parties.

 Many of the matters addressed in Title III, such as remedy
selection and state authority, are currently the subject of
stakeholder meetings in the House and Senate. That process
should be allowed to continue, rather than being short-circuited
by legislation which has not been reviewed or debated. In fact,
H.R. 1778 only became widely available electronically on Sunday,
June 8. Many citizens, public interest groups, responsible
parties, and even states have not yet seen its provisions and
therefore cannot comment on its content. Therefore, I recommend
that Title III be deleted from the bill at this time so that
interested groups will have adequate opportunity to review and
comment upon its provisions.

 SUBSTANTIVE PROBLEMS

 After my own brief review, I see several potential
substantive problems with the bill. First, several of the
provisions simply ignore legitimate state interests in the CERCLA
cleanup process. Second, some of the provisions contravene
compromises reached by the states and federal entities after
extensive negotiations. Third, provisions in Title III implement
short-cut solutions to difficult issues still being debated
through stakeholders meetings in the House and Senate. Fourth,
some provisions in Title III are unnecessary and attempt to fix
what is not broken. I will give three examples of bill
provisions which illustrate these problems. Each of these
provisions put into place a scheme that would be opposed, in
whole or part, by most states. In addition, each of these
provisions have the result of treating the federal government
differently than private businesses.

Section 302
 Section 302 would make future land use the pivotal
consideration in the remedy selection process at federal
facilities. One of the lessons learned during the first decade
and a half of implementing CERCLA is that the costs of requiring
cleanup of property to a level safe for residential uses in some
instances far exceed those necessary for commercial or industrial
uses. Most agree that it does not make sense to incur these
additional costs if residential use is not reasonably
anticipated. This understanding has been incorporated into EPA
guidance on land use, and is increasingly reflected in the
remedies being selected. However, there exists a general
consensus that legislation is desirable to provide for the
methodical inclusion of land use considerations into remedy
selection, and states generally concur.

 There are, however, right ways and wrong ways to factor land
use into decision-making. We must be certain that whatever
reforms are ultimately enacted consider land use in the right
way.

 The right way is to ensure that entities and individuals who
will be most affected by land use and cleanup decisions have
meaningful input into the process of designating future land use
scenarios. Previous bills attempted to provide that assurance by
encouraging citizen boards to reach consensus as to land use,
and, then, by requiring the President to give those
recommendations substantial weight. In addition, previous bills
required that land use information be included in the
administrative record for a cleanup. Even with these procedural
safeguards, many believed that these provisions did not
adequately protect local interests.

 The wrong way is to allow the polluter to decide
unilaterally what future land use will be on a piece of property
and tailor its cleanup to that use. It appears that Title III
allows just this scenario. Specifically, it allows the President
to choose the future land use of a piece of federal property,
and, then, to select a remedy consistent with that land use.

 At federal facilities, the polluting agency is also the lead
cleanup agency. Communities surrounding these facilities,
therefore, are particularly at risk from inadequate cleanup. It
is especially important at federal facilities to ensure that
federal agencies clean up to a level safe enough for land uses
that reasonably accommodate the needs of the local communities.
Some federal facilities, such as the Rocky Mountain Arsenal, are
in the midst of metropolitan areas. Land use decisions at those
facilities may significantly impact development right across the
street.

 To allow the federal government to "cut and run"--leaving
local governments to deal with whatever mess is left behind -
violates the public trust and imposes unfunded mandates on the
affected states and communities.

 On the other hand, we recognize that the rights of local
communities must be balanced with the reality of economic and
technical limitations, especially in these days of budgetary
constraints. Federal agencies cannot be expected to write blank
checks at every site to enable the most intensive use even where
such use is not reasonably anticipated. This balance is not
easily legislated.

 Many capable and knowledgeable people have been working very
hard to develop an appropriate method of achieving the balance
between accountability to the taxpaying public in general, and
accountability to communities neighboring federal facilities. A
federally chartered advisory committee, the Defense Environmental
Response Task Force (DERTF) (of which Texas Attorney General Dan
Morales is a member), has established a Future Land Use Working
Group to work out issues related to this difficult question.
This committee was established to provide a forum for states and
the DOD to hash out issues related to base closures and reuse of
contaminated properties. In fact, it is my understanding that
the Texas Attorney General's office will be presenting draft
superfund reform language dealing with some aspects of land use
and institutional controls at the DERTF meeting currently taking
place in Alabama.

 With continued work by the Defense Environmental Response
Task Force, other interested stakeholders, the superfund
congressional committees and this Committee, I am hopeful that an
appropriate legislative solution can be found. The language
posed in H.R. 1778, however, is not such a solution. By giving
the "President", which at federal facilities means the polluting
agency, unfettered discretion to decide reasonably anticipated
land uses, the bill does not strike the proper balance. In
addition, this provision puts the federal government in a much
better position than private firms who cannot tailor their
cleanups to their own selected land use.

Section 304
 Another very troublesome aspect of Title III is the section
dealing with the transfer of EPA authorities at federal
facilities to willing and qualified states. Much of this
language is taken from H.R. 4916, which states negotiated with
federal agencies, including the Department of Justice (DOJ),
Department of Energy (DOE), and DOD in 1994. (Attached is a copy
of a letter from John Deutsch of DOD supporting this compromise
language.) Changes to the language in H.R. 1778, however, would
so fundamentally alter the compromise reached between the states
and the federal government as to render it virtually meaningless
and, therefore, unacceptable to states.

 Specifically, H.R. 4916 acknowledged that qualified states
were appropriate overseers of federal facility cleanups. States,
unlike EPA, are not hamstrung by the unitary executive theory.
They maintain a truly arms-length relationship with the regulated
federal agencies. States are recognized as being flexible,
creative, and effective at identifying and implementing
innovative solutions to difficult problems. Further, states are
closer to the sites and more accountable to the public. In
addition, the record demonstrates that states can be trusted to
select cost-effective remedies at federal facilities.

 Some have argued that allowing states to regulate federal
facility cleanups would break the federal budget because
divorcing decision making authority from funding responsibility
provides incentives for states to "gold plate" remedies. I
disagree. State delegation at federal facilities ensures
independent oversight -- not gold plated remedies. States have
no incentive to drive up the cost of cleanups. Rather, states
are motivated to achieve thorough, appropriate remedies as
quickly and efficiently as possible, to conserve their own scant
resources, and to convert federal facilities or portions thereof
from dead zones into community assets.

 Even where states have no cost share or operation and
maintenance responsibilities, they generally succeed in
expediting and streamlining cleanup efforts to achieve rapid,
effective results. Far from "raiding the federal treasury,"
states have proven that, when implementing either federal
hazardous waste laws or their own cleanup programs, the remedies
they select are more cost-effective than those chosen by federal
"Superfund" managers, and begin and end far more swiftly. A few
examples of cost-savings accomplished at Rocky Flats are
illustrative. To give a couple of examples:

 In 1993, the Colorado Department of Public Health and
 the Environment (CDPHE) encouraged DOE to identify and
 eliminate unnecessary monitoring wells at the site. As
 a result of this initiative, in fiscal year 1993, DOE
 eliminated 116 wells and saved over $2 million.

 In response to CDPHE's prodding, DOE's contractor reduced
 the number of hazardous waste temporary storage areas from
 approximately 270 to 60, saving hundreds of thousands of
 dollars by eliminating weekly inspections of unnecessary
 temporary storage areas.

In fact, even states which have been aggressive in regulating
federal facilities have demonstrated their willingness to
accommodate federal budgetary concerns. For example, the states
of Washington and Colorado have recently renegotiated cleanup
agreements with the specific goal of reducing projected cleanup
costs. Although Washington State has been accused of driving the
costs of the Hanford cleanup higher, it is the decades of short-
sighted mismanagement of waste that has resulted in the
staggering cleanup costs, not the state's attempt to rectify the
problem now.

 States are flexible. At Rocky Flats, we negotiated an
agreement that allowed DOE 10 years merely to investigate the
contamination at the facility (not to clean it up, as erroneously
reported by GAO). Since signing the agreement we have granted
over 70 extensions for good cause. Only a few requests for
extension were denied. The new IAG expressly takes budget
constraints into consideration in setting schedules and
milestones.

 States recognize that there are limited federal resources.
What they want is a sustained commitment to make the progress
needed, not a front-end boom of expenditures followed by years of
cut-backs, layoffs and aborted efforts which will ultimately
compound the total costs of cleanup, throw surrounding
communities into chaos, and disillusion public stakeholders.

 Forty three Attorneys General signed a May 3 letter
advocating an increased state role at federal facilities. Both
the National Governor's Association and ASTSWMO likewise support
state oversight. This is a very high priority for states.

 Although the record demonstrates that states can be trusted
to regulate federal facilities responsibly, we agreed in 1994 to
a number of provisions which would grant agencies additional
protections that are not enjoyed by private parties. Most
importantly, H.R. 4916 required states to enforce their remedy
decisions in federal court, thereby allowing the federal agency
to challenge these decisions despite the CERCLA section 113(h)
pre-enforcement review ban.

 H.R. 4916 also precluded state enforcement of more stringent
requirements against federal agencies than against private
parties, and required dispute resolution to proceed all the way
to the governor, rather than just to the top state environmental
official. States were not entirely happy with many aspects of

this compromise because it violated our basic precept that
federal facilities should be treated the same as private sites.
However, we supported the provisions as they represented a
significant improvement over the current system and were
sensitive to concerns about the federal fisc.

 H.R. 1778 radically deviates from the compromise language by
establishing a scheme whereby (1) states would forfeit their
independent RCRA authorities when they are delegated CERCLA
authorities, and, (2) states would have to pay for remedial
activities beyond those required by federal law. Thus, the bill
gives the states the authority to select remedies, but, in
practice, prevents them from imposing state requirements more
stringent than federal laws would impose. Under current law,
states can independently enforce their own hazardous waste
management statutes at any facility being cleaned up under
CERCLA. Accepting EPA's authorities at federal facilities would
therefore place a state in a worse position than it currently
hold. In addition, the bill results in a situation in which
private firms must comply with state laws, but, the federal
government need not do so. For this reason, the states oppose
those delegation provisions contained in H.R. 1778.

Section 303
 Section 303 is one of several examples of legislation that
is unnecessary, and, in fact creates more problems than it
solves. Section 303 attempts to create a criminal liability
exemption for federal employees in instances in which moneys are
not appropriated to meet environmental requirements. This is a
laudable goal but completely unnecessary. Despite the fact that
the Federal Facilities Compliance Act's clarification of the
waiver of sovereign immunity for criminal liability, has been in
effect for five years, no governmental employee has ever been
prosecuted for non-compliance with environmental laws that was a
result of inadequate appropriations. Nor do state (or we assume
federal) prosecutors intend to bring such actions. It would be
fundamentally unfair to punish employees for acts over which they
have no control.

 The language proposed in H.R. 1778, however, would do more
than just protect such innocent employees. It would also repeal
statutes put in place over the past several years that enable the
states to ensure adequate cleanups at federal facilities. CERCLA
does not create 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 interested
parties, including states.

 Here again, the bill puts the federal government in a better
position than private businesses. Whereas private firms must
comply with the hazardous waste statutes, regardless of the cost,
H.R. 1778 would allow federal employees to escape those
requirements by simply refusing to request adequate funds to
comply with environmental laws.

 Because there is no evidence that criminal liability is a
problem that requires a legislative fix, because the proposed
language would preempt state law, and because the bill would
create loopholes in the current system, states strenuously oppose
this provision.

 CONCLUSION

 The superfund program as a whole, and the federal facility
cleanup program, in particular, is beset with many difficult
problems. I can understand the frustration of this Committee
with the slow progress of reform, and can further understand the
Committee's desire to push the process forward. However, I
believe that the best way to ensure workable, fair and
comprehensive legislative reforms is to pursue bipartisan
solutions in a process which allows extensive stakeholder
involvement. This has not happened with H.R. 1778.

 Therefore, I recommend that Title III be deleted from the
H.R. 1778 and the matters addressed there be considered
separately.

 Thank you.