MORALES LETTER

[Lenny Siegel <lsiegel@igc.org>]

LETTER FROM TEXAS ATTORNEY GENERAL DAN 
MORALES

Dear Representative [name]:

I wish to express my concern over H.B. 1778, the Defense Reform 
Act of 1997, and particularly over Title III, which addresses 
environmental issues. As the delegate of the National Association of 
Attorneys General (NAAG) to the Defense Environmental Response 
Task Force (DERTF), I have followed these and similar issues for 
several years in relation to closing military bases.

Title III amends various sections of the Comprehensive 
Environmental Response, Compensation and Liability Act 
(CERCLA) - the nation's Superfund law - as well as other statutes. 
It has broad implications not just for military bases and other federal 
facilities, but also for private Superfund sites throughout the 
country. Considering the complexity of the Superfund law, I would 
urge that these provisions receive careful consideration through the 
Superfund reform process rather than the Defense Reform Act.

Section 301 of Title III amends 121(b) of CERCLA, which governs 
cleanup standards. The law currently favors permanent remedies for 
cleanups of hazardous substances because experience has shown 
that permanent remedies tend to be more efficient over the lifetime of 
the remedy. The new section ignores this experience by allowing 
containment, other engineering controls, or other methods 
ofprotection, besides permanent remedies. This change is likely to 
lead to greater long-term costs as well as greater risks, and if enacted 
may well be characterized as short-sighted.

Additionally, the new 121(b) is problematic in other ways. 
Subparagraph (2)(A) does not make it clear whether to choose the 
remedy that causes the least exposure to hazardous substances, or to 
balance exposure with other factors. Subparagraph (2)(C) requires 
hot spots to be treated to the maximum extent practicable, but seems 
to allow containment as an interim remedy in all cases and the final 
remedy in some cases. Paragraph (4) requires any necessary 
institutional controls to beincorporated into a hazardous substance 
easement, but does not ensure that such an easement is valid or 
enforceable under state real property law.

Section 302 of Title III adds a new 121(b)(5) to CERCLA. This 
paragraph, like several paragraphs in 121(b)(1-4), would require 
taking reasonably anticipated future land uses into consideration 
when selecting a remedy. While such aprovision holds out the 
promise of cost savings, it also brings complications. For instance, 
it does not say what would happen if the land use changes and the 
remedy is no longer fully protective of human health and the 
environment under the new use. This option has lasting 
implications for our local communities and should not be enacted 
without careful scrutiny.

Section 303 gives a federal official a defense in a criminal action for 
failure to take a response action, if appropriated funds are not 
available and the official took steps to ensure that funds were 
requested in the President's budget. While it is unlikely that a 
criminal action would be, or could be, brought against an official 
under such circumstances, this represents another instance of federal 
officials attempting to be held to different standards than responsible 
corporate officers at private facilities.

Section 304 of Title III amends 120(g) of CERCLA to allow certain 
CERCLA authorities, applicable to federal facilities, to be 
transferred to the states. It is desirable for the States to be able to 
enforce Superfund laws at federal facilities, pursuant to waivers of 
federal sovereign immunity. However, this section provides a state 
little more than the power to ask federal facilities toenter into consent 
decrees. The Act specifies no penalties for noncompliance. In 
utilizing these new authorities, states must agree not to enforce their 
own hazardous or solid waste laws with respect to the same release; 
although nothing but anecdote suggests that this presents a conflict. 
Finally, any dispute must be submitted to dispute resolution, 
culminating with the head of the federal agency responsible for the 
contamination and the governor of the state in which the facility is 
located. If those individuals cannot agree, the state mustpay for any 
additional costs attributable to the preferred remedial action, 
whatever the relative merits of the remedies. This is despite any 
evidence that states are attempting to drive up costs unnecessarily.

Section 311 of Title III exempts DOD facilities from relevant and 
appropriate state standards relating to the cleanup of hazardous 
substances. Again, thisprovision sets a double standard by 
exempting DOD facilities from requirementsapplicable to private 
facilities.

Section 313 prohibits the Secretary of Energy from entering into an 
environmental compliance agreement, whatever the cost, without 
submitting a detailed costestimate to Congress. While Congress 
deserves such information, not every compliance agreement entails 
major expenditures.

Section 314 grandfathers exemptions for the armed services from 
new ozone and particulate requirements and grants the services a 
benefit not available to industry. Section 315 grants the 
Administrator of EPA the authority to promulgatea rule finding that 
stored unexpended military munitions are not hazardous wastes, 
although they might otherwise meet the definition of hazardous 
waste.

To summarize my objections to Title III of this bill, it attempts to 
solve problems that do not exist and to save money that is not being 
wasted. It perpetuates a double standard for polluted federal 
facilities at the expense of the states and local communities. It seeks 
major amendments in complex environmentallaws in the guise of 
defense reform. This title should be deleted completely from this act 
and, if need be, reviewed as a part of the Superfund Reauthorization 
package, where it can be considered in the proper context.

Accordingly, I urge you to delete Title III from this bill.

Sincerely,

Dan Morales
Attorney General