HOURCLE TESTIMONY

[Lenny Siegel <lsiegel@igc.org>]

Testimony of Laurent R. Hourcle
Associate Professor of Environmental Law
Co-Director, Environmental Law Program
The George Washington University Law School
Before the National Security Committee
Tuesday June 17, 1997
[Reproduced without Graphics]

 It is a great pleasure to provide testimony to a body that has the
courage to undertake an examination of the unique circumstances of
federal facilities' environmental cleanup. While environmental
contamination of federal facilities is an important issue in terms of
protection of public health and the environment, wise use of ever more
limited federal resources, and fragile relationships between states and
the federal government, my sense is that it is too often the forgotten
stepchild in the larger debate on reform of The Comprehensive
Environmental Response Compensation and Liability Act (CERCLA). I
believe that it is time to discuss the unique aspects of federal
facilities environmental clean-up, that practically and intellectually
are different from those sites being addressed in the larger civilian
CERCLA program. I believe it is also time to recognize the progress
that has been made in our understanding of environmental cleanup in the
eleven years since passage the Superfund Amendments and Reauthorization
Act (SARA) of 1986 that created the CERCLA 120 federal facilities
cleanup program and also the Defense Environmental Restoration Program.

Background of the federal facilities environmental cleanup program

 I view Congress' original passage of CERCLA and SARA as a focused, but
limited federal effort to address the most hazardous instances of past
disposal practices. When Congress came to grips with what became
CERCLA, it was a time when drums of hazardous wastes could be found
abandoned and stacked in farm fields or on docks along our rivers.
Thanks to CERCLA, working together with the Resource Conservation and
Recovery Act (RCRA) and the other cadre of pollution abatement statutes
those types of situations have been all but eliminated in the United
States. One of the great success stories of CERCLA has been its
"emergency" removal program to quickly and decisively eliminate
immediate threats to human health--those stack of drums and other
immediate life and health threatening situations.

 But while the original thrust of CERCLA was to leverage the federal
wherewithal to address these worst sites--some 400 originally, in 1986
Congress also included section 120 in CERCLA. This 120 program does
not just address the most threatening sites, but creates a fence to
fence obligation to address a much larger and broader range of sites
under an imprecise mix of federal and state authority. As such, while
federal facility cleanup is part of the CERCLA cleanup program, many of
the sites being addressed are very different than the typical
CERCLA/Superfund site, as we will discuss.

 Over the past decade, spurred by CERCLA and the clean-up programs under
RCRA, we have developed a much broader understanding of the clean-up
situation facing the nation. The following graphic which I have
recreated from other sources gives a concept of the world of cleanup.

 As can beseen from the graphic, in the total world of potential cleanup
sites, only a very small fraction (00.267%) are NPL sites. Nonetheless,
the federal facilities CERCLA program starts from the premise that every
potential federal facility site is to be identified, and all will be
presumed to be eventually included in the NPL list unless determined
otherwise. Further, the policy has been that if one site on a federal
enclave was eligible for inclusion on the NPL the whole federal facility
would be listed, placing all other sites on the facility under the full
CERCLA program no matter their relative environmental significance.
When I teach CERCLA/RCRA for federal facilities, I use the following
graphic:

 The Docket is the federal facilities counterpart of the CERCLIS
(120(c)).
 PA/SI stands for the initial CERCLA investigation stage.
 HRS II is the scoring system to determine whether sites should go on
the National Priorities List.
 The rest of the process represents the steps for NPL site remediation
under the National Contingency Plan (40 CFR 300, EPA's roadmap for oil
and hazardous materials cleanup.

 The "black hole" that is depicted above is my "short hand" for the
period of uncertainty while EPA is considering listing a site. If the
site is not listed on the NPL , then under CERCLA section 120(a)(4) the
site is to be cleaned up using the same state law that would apply to
other similar sites in the state. The problem I see is that there is
no obligation on EPA to make a timely decision whether to list or not;
nor does EPA have an obligation to state that a site will not be
listed. A review of May 19, 1997 EPA data available on the Internet
indicated that more than a decade after federal facilities cleanup
obligations were formalized, six federal facilities are still in the
"proposed for listing on the NPL" category. Five of these sites were
proposed in the 1994-1995 time frame (and continue in this CERCLA
version of purgatory); one, Fort George G. Meade carries a listing date
of just this past April Fool's day. This listing, however is no April
Fool joke. Rather, it points up a significant dysfunctional and
expensive facet of the federal facilities CERCLA program. EPA's
listing summary and DoD's status for Ft. Meade from its most current
publicly available report (1995 Annual Report Volume II ) are attached.
In reading them, one would think they are two completely different
facilities. For years, the Army has conducted a program of remediation
at Ft. Meade, unsure of whether the work will eventually be required
to be conducted strictly in accordance with the NCP and all EPA
"guidelines, rules, regulations and criteria" applicable to remedial
action at NPL sites or under Maryland state law, which may or may not
have different requirements. This type of lingering uncertainty about
how to proceed tends to add time, complexity and cost to federal agency
cleanups and forces federal agencies to run the risk of redoing
expensive work.

 As noted earlier, the tendency has been to list entire installations
and all their sites on the NPL, which under a strict reading of Section
120 would require a comparatively inconsequential site to receive all
the bureaucracy and process attendant to the clean-up of Love Canal and
other significant Superfund sites. Further from the information
provided in the EPA narrative, it is impossible to tell whether it is
only the 80 acres of Fort Meade listed in the DoD report as not being
suitable for transfer at this closing installation that has been
proposed for listing on the NPL or some larger area of Fort Meade
property. In fact the April 1 Federal Register announcement proposing
the listing is little more than a table that lists "Fort George G.
Meade."

 Although there has been a great deal of work to smooth and expedite the
cleanup process at federal agency sites, that process is still limited
by the confines of CERCLA itself. CERCLA and its implementation
processes are primarily designed for the riskiest, trickiest and
potentially most heavily litigated sites. Some aspects of this CERCLA
process can add cost and time to what otherwise would not be needed to
effectively accomplish a much simpler cleanup.

 I believe the cost and schedule implications are serious, particularly
to the concerns of the National Security Committee. The following is a
tabular view of data reported by an inter agency panel chaired by OMB in
1995:

 As can be seen from the chart, the lion's share of the funding will
come through the National Defense Authorization Act. It is difficult to
assess how accurate these cost projections are. I do not believe, for
example, that ordinance ranges and attendant clean-up costs for them are
included in the DoD projections. I also note that the summary status
report in the FY 1995 DoD annual report indicates 22,089 sites in their
program, over 500 sites more than are listed in the above table.
Further, while DoE has the highest projected cost, that agency still
appears to be grappling with which technologies will be used for
cleanup. This uncertainty over just what will be done makes me question
the confidence factor associated with even this broad cost projection.

 This discussion is not meant to be overly critical of federal agencies
and the daunting tasks before them. I believe developing accurate
budget projections may be among the most difficult aspects of the entire
federal facilities clean-up process. In the macro sense, federal
agencies are asked to predict total future costs when they have not yet
fully assessed the scope of the problem, which in turn drives what
technology may be required. This, in turn, may be affected by potential
development of new technologies in the future. All the while during
this process it frequently remains unclear until almost the end whether
CERCLA, RCRA or state law may apply to determine the final cleanup.
Consider, for example, the disparities in the number of sites versus
costs in the above table among DoD, DoI (Interior), and DoA
(Agriculture). Is one group being unduly pessimistic or another
optimistic. On the micro scale, for the installations themselves,
there is the problem of programming and budgeting now for what cleanup
actions will need to be taken FY 1999. This is an almost impossible
task under the chapter and verse of the National Contingency Plan when
an installation is only part way through the investigative phases.

 In sum, my view of the area of federal facilities cleanup, using
hindsight acquired over the last decade, can be described as a morass
of too much law and too little cleanup compounded by too often
addressing too many sites with the process and bureaucracy of the very
worst sites in the nation, but without considering their environmental
severity, all in a cloud of fiscal and political uncertainty.

Addressing non-NPL sites in the "real world."

 The " inverted pyramid" graphic on page two of this testimony shows
that out of a possible universe of some 450,000 potential sites
estimated by GAO,"only" 1,204 are addressed by EPA under CERCLA as NPL
sites. That, together with the universe of sites addressed under
"non-delegated" RCRA corrective action programs, and the few potential
RCRA section 7003 "imminent and substantial endangerment" sites,
represent EPA's non federal facility frame of reference for clean-up.
By and large, EPA's non federal facility CERCLA frame of reference,
under which federal facilities have largely been shoe horned, represents
the most severe private sector sites. States, by comparison have had
to innovate to develop processes that deal with the much greater number
of sites that do not require "NPL level" attention. The concepts of
tying cleanup to future land use, addressing hot spots, and generic
remedies are consistent with the new approaches, primarily implemented
by the states, being used to address "non-NPL" or less severe sites.
These approaches include those in the growing number of state
"Brownfields" programs and "voluntary cleanup" programs that have been
designed to expedite focused and targeted remediation and place sites
back into productive use.

 The majority of DoD sites appear to be similar in nature to those that
normally would be addressed by states through their more innovative and
flexible programs, were it not for CERCLA section 120. It has been
estimated that 60% of DoD sites involve fuels and solvents and 30% heavy
metals. As such, these sites have a great deal of similarity to the
vast majority of private sector sites that are not addressed under
CERCLA, but rather by states that are conscious of balancing the need
for cleanup with the financial wherewithal of businesses and other
entities in their communities. A listing of DoD's site types is
attached.

 Some sites--the risky, technically tricky sites that are litigation
magnets-- may need the studied, defensive, documentation laden nature of
the full CERCLA process. Many sites, however, including many federal
facility sites do not. I urge you to be careful and fix the "right"
problem, but I firmly believe there is a great and unnecessarily
expensive problem to be fixed, and as a tax payer, I urge you to do so.

Recommendations (Sort of):

 This hearing has come up rather quickly. While I have spent the better
part of 17 years thinking about issues associated with federal facility
and particularly DoD cleanup, I have not had the opportunity to share
these concepts with a multi disciplinary assortment of friends and
contacts that I normally would seek out in the nature of peer review.
As such I offer the following not as concrete recommendations, but some
thoughts I believe worth exploring to improve the timeliness and
cost-effectiveness of the federal facility cleanup program.
Constructive changes that promote prompt effective cleanup, that reduce
unneeded bureaucracy would serve us all well. If you voted for the
passage of CERCLA section 120, please don't take this as criticism. I
thought it was a pretty good compromise then too. Many things
developed differently than I and likely many others anticipated over the
past 11 years, and the only shame now is not to recognize that fact, fix
the problems, and move forward.

Some thoughts:

 We've had 11 years to designate federal facilities NPL sites. Enough
is enough. The PA/SIs upon which scoring is done are by and large in,
and have been for years--at least for DoD. In fact, CERCLA 120
originally provided that evaluation and listing was to be completed "not
later than 30 months after October 17, 1986." The provision now reads
"evaluation and listing under this subsection shall be completed in
accordance with a reasonable schedule established by the
Administrator." I suggest it is time to move along: limit EPA to one
more year to propose and another six months to finalize any more
federal facility NPL sites for those sites which have submitted
acceptably completed PA/SIs, unless there is significant newly
discovered evidence of additional risk. For any PA/SIs yet to be
submitted, require EPA to make a decision whether to list on the NPL
within a year after receiving properly completed PA/SI documentation.
We owe DoD, other federal agencies, and the states some certainty as to
what rules to follow in cleaning up sites.

 Limit the full CERCLA process to "true" NPL sites. If subsequent
evaluation proves that the presumptive NPL scoring is not valid, but
rather that a site poses less risk than a true superfund site, force "de
listing." The NPL scoring and listing process is coarse and rough at
best and not truly related to actual risk.

 Eliminate the requirement to follow those parts of the NCP and
implementing "guidance" that is needed for litigation purposes
rather than to achieve technically effective cleanup for federal
facilities sites, unless the federal agency doing the cleanup
determines it has the possibility for cost recovery.

 Clarify that true NPL sites are to be handled by EPA under CERCLA,
even if that means curtailment of some state authority for what will now
be a smaller number of sites.

 Develop a definitive statutory construct for putting federal facility
site cleanup under state law. Do not require an affirmative delegation
of authority by EPA to states for anything other than true NPL sites.
Rather, designate those elements of a state program that must be present
for a waiver of sovereign immunity--thereby putting federal sites under
a state clean up program. These elements are:

 The state accepts a structured and orderly federal budgeting process
under which they have input, but only under extraordinary circumstances
can they initiate a process to upset federal budget priorities in the
execution year.

 The State can be reimbursed for their involvement comparable with
what they would otherwise require from the private sector operating
within their state, as well as any additional costs specifically related
to effective execution of the agency cleanup program within the state.

 Develop an orderly process to resolve disputes.

 The state must allow non NPL site federal facilities to participate
in any voluntary cleanup or brownfields program the state may have to
the same extent as similarly contaminated private sites.

 Require that the states adopt comparatively certain, or reasonably
ascertainable, cleanup levels that consider future use of the property.

 Create a remedy review board for federal-state conflicts as to the
remedy to be used when the governor of a state and a federal agency head
cannot agree. The board should have the power to select a remedy and
determine whether any additional cost should be born by the state. The
composition of the board could be patterned after the process used in
the Pub. L. 101-510 base closure process ( appointment after
consultation with designated groups). In this case, however the
appointments should be made with a heavy weighting based on an
individual's technical expertise.

 Do not require that federal facilities finally select technology in
"Records of Decision" or other comparable decision documents.
Elimination of such requirements would enhance use of performance based
contracting.

 Better define the role of Restoration Advisory Boards/ Site Specific
Advisory Boards, particularly with regard to programming and budgeting
decisions, and decisions as to future land use. The local community
has a significant stake in decisions regarding restoration tied to
future land use. Modify the applicability of the Federal Advisory
Committee Act to such boards as may be necessary.

 Require that DoD and other federal agencies (including EPA) make
their federal facilities environmental cleanup strategy part of the
plans they are required to prepare under the Government Performance and
Results Act. Ensure that performance measures are identified to
effectively monitor cleanup progress.

 Develop a technology development investment strategy for federal
facilities. Technology would be developed under this strategy to more
effectively address residual risks of those sites "parked" under a
brownfields type approach that ties risk to future foreseeable land
use. While brownfields approaches make sense in the near term so that
some productive use can be made of land, we have no great experience
with how long or effective institutional controls will be or experience
with long term containment. Implement a narrow, targeted
indemnification program to encourage development and initial
implementation of innovative restoration technologies when adequate
insurance is not available at reasonable cost. It should be noted that
such an effort has "dual-use" connotations, and might be appropriate
for acquisition concepts like the "other transactions" concept that has
been pioneered by DARPA.

 Be wary of tying federal agencies' hands with too strict definitions
in areas such as what constitutes a "hot spot". Rather, designate some
factors they should consider and then hold federal employees answerable
for their decisions through the Congressional oversight process.
Federal agencies should not be forced to do extensive on base "active"
remediation where the on base population and the on installation
environment is adequately protected and there is no real possibility of
off base contamination. At the same time, federal facilities need
maximum freedom to make good decisions about the right time to address a
risk in the context of their overall program and budget.

 Begin to address those issues which, for a variety of reasons, have
fallen into the "too hard to do" category for federal agencies to
resolve. I suggest four that I was unable to solve while in government
but that in my opinion still require solutions:

 The application of the National Environmental Policy Act to federal
facility cleanup--particularly those cleanups conducted under state law.

 Development of a liability philosophy and creation of an
administrative dispute resolution process to administer that philosophy
with regard to "third party site" liability. This is the liability of
federal agencies for costs at sites that are not currently owned by
federal facilities. Some of the most difficult cases arise from
government activities during World War II and involve federal agencies
no longer in existence.

 Natural Resource Damage Claims--the so called "sleeping giant" of
CERCLA liability. The statute creates an amorphous concept of "Joint
Trusteeship" between the federal government, states and tribes. The
concept is that when there has been damage to natural resources, the
polluters should pay to restore the resource and any other resources
lost due to the contamination. There is supposed to be a single amount
of a recovery for natural resource damages, but the statute does not
explain how the joint trustees are to "share" the recovery. Federal
agencies have been designated as trustees for their own property. Where
the natural resources damaged are resources on and around a federal
facility, what should be done and who should pay how much to whom for
what? What are the federal governments', as opposed to states', or
tribal natural resources? This issue is starting to raise its ugly
head. This is a timely issue, and one of potentially great cost.
Prompt congressional action could avert what will otherwise likely be a
bloody and contentious round of litigation. The Air Force has suggested
some interesting concepts to build natural resources recovery into its
remedy decision making that I believe merit consideration. This program
could also be integrated into DoD's Integrated Natural Resources
Management Plans. It is another example of how the basic CERCLA
structure does not fit well with federal facilities.

 How should munitions be treated under the CERCLA program? Should
they be "hazardous waste" at areas such as impact ranges so as to be
fully subject to CERCLA--including liability for natural resource
damages? Are they "pollutants and contaminants" so that the government
has a more discretionary responsibility to cleanup? How should
munitions and ranges be treated under state programs? Due to the unique
nature of munitions as "hazardous substances," their importance to
military readiness and the lack of available technology for cost
effective remediation, should a separate program be created to deal
with this issue?

 In closing, I appreciate the opportunity to share my thoughts about
these important issues with the committee. I urge you to continue to
look at the defense cleanup program with all the attention deserving of
a major weapon system acquisition program. Given the realities of the
budget process at $30 billion, not including range cleanup, it fully
has the ability to be the "anti major weapons system acquisition
program."

 There is perhaps no higher duty of the military to protect the nation
against enemies foreign and domestic. Our unfortunate military
hazardous waste mess created over many past unknowing decades is
certainly an enemy that must be addressed with equal fervor to that
which we would have for a foreign military enemy. However, we also owe
it to the nation to be rigorous in cutting unneeded bureaucracy and
waste that brings no benefit to the government or our citizens: that is
the central theme of the legislation we are here today to discuss.

today to discuss.