MORALES WRITTEN TESTIMONY

[Lenny Siegel <lsiegel@igc.org>]

 WRITTEN TESTIMONY OF DAN MORALES, ATTORNEY GENERAL OF
TEXAS BEFORE THE NATIONAL SECURITY COMMITTEE OF THE U.S.
HOUSE OF REPRESENTATIVES

Mr. Chairman, Representative Dellums, and Members of the Committee.
Thank you for the kind invitation to testify, and I regret that I am not able to
join you in person today. However, I very much appreciate the
opportunity to express my strong opposition to Title III of H.R. 1778,
through the submission of this written testimony.

As Attorney General of the State of Texas, I have long been interested in
environmental laws as they pertain to federal facilities. My office has
been closely involved in the base closing and cleanup process. We have
worked with the Department of Defense, state agencies and local
communities to achieve speedy cleanup of closing military bases, so that
they can be developed for productive economic use. For instance, at
Chase Field Naval Air Station, which was closed under the 1991 round of
base closures, my office promoted an environmental advisory committee
as early as 1992. We engaged in this early example of partnering, not
because it was mandated by a federal program, but because it was the
sensible thing to do. Many of the lessons we learned in those early
sessions were used to help develop the Restoration Advisory Boards
nationwide.

Although we believe in vigorously enforcing our own environmental laws,
we have also found great benefits in working with the federal facilities as
they remediate their environmental problems. In cooperation with our
client agency, the Texas Natural Resource Conservation Commission
(TNRCC), we have assisted the government in minimizing costs while
achieving compliance with environmental standards. To provide just one
example, in 1995 the TNRCC documented a savings of $88.5 million at
DoD facilities in Texas, because the state advised the installations of
less-costly remedies that would meet state and local public health and
environmental requirements. (See Annual Report to Congress for Fiscal
Year 1995, Defense Environmental Response Task Force (December
1995), App. E, page 1). Significant cost savings were realized at Fort
Bliss in El Paso ($6 Million), Chase Field Naval Air Station in Beeville ($50
Million), Longhorn Army Ammunition Plant at Caddo Lake ($8 Million),
Naval Air Station Dallas ($2.5 Million), Bergstrom Air Force Base in Austin
($4 Million), and Kelly Air Force Base in San Antonio ($18 Million).

This spirit of cooperation has led to better communications between the
regulatory agencies and the facilities. According to TNRCC, state review
of DoD documents in Texas was shortened by 120 to 180 days, resulting
in expedited cleanups and quicker transfers of base property. State
participation in Restoration Advisory Boards, moreover, has resulted in
better and more representative community involvement. I am proud of the
efforts my office has taken to achieve these goals, without compromising
our primary duty of enforcing state laws and regulations.

I have also participated in base closings issues at a national level. Since
1991, I have been the delegate of the National Association of Attorneys
General (NAAG) to the Defense Environmental Response Task Force
(DERTF), a Congressionally-created committee comprising state and
federal officials, as well as private sector members. This task force has
studied ways to expedite environmental cleanups at closing military
bases and to implement the President's Fast Track Cleanup Program. We
have visited closing bases nationwide, have listened to concerned
citizens during meetings of local Restoration Advisory Boards, and have
received presentations from experts in every aspect of environmental
remediation. I believe the task force has gained considerable insight into
the issues surrounding this process, and has contributed to speedier and
more cost-effective cleanups. This has benefitted the taxpayers, the
states, and local communities alike.

Before specifically addressing the problems caused by H.R. 1778, I
believe that it is important that we understand the regulatory structure
that we have adopted during the past few decades to protect our
citizens and communities surrounding federal facilities.

General Comments

As a fundamental matter, the legal structure for ensuring cleanup and
environmental compliance at DoD facilities is clear. First, Congress has
determined that DoD facilities must comply with environmental laws to the
same extent as the private sector. Second, the United States has
acknowledged and fostered a cleanup and compliance system in which
the states play a key, if not determinative role in protecting the human
health and environment as they might be affected by DoD facilities. It
could not be otherwise, given:
 (i) the magnitude of the problem, i.e., the "environmental deficit"
built up over the past decades at DoD facilities;
(ii) the dispersion of hundreds of DoD bases throughout the fifty states
of the United States; and,
(iii) the deeply-ingrained solicitude for preserving our federal system in
which states retain much power to protect the health and well-being of
their citizens.

The current regulatory structure of shared federal-state responsibilities
furthers three important goals, which must be maintained in any revision
to current law:
(i) ensuring the safety and health for our servicemen and
women (and their families). This is important for their well-being, as
well as for our national security. Those who are responsible for
defending this nation should be accorded the same health and safety
protection accorded workers and their families in the private sector;
(ii) ensuring the health and safety of communities surrounding
DoD bases. DoD cannot be allowed to shirk its responsibility to protect
the health and safety of the communities surrounding its bases,
especially if those communities consist of groups, such as Hispanics and
African-Americans, which have historically been the victims of
environmental injustice. The nation cannot pull the ladder up on these
groups by cutting the environmental cleanup and compliance budget so
soon after finally initiating environmental justice efforts; and,
(iii) mutuality or reciprocity of responsibility. If DoD and the
federal government do not comply with all applicable compliance and
cleanup laws, then other entities may begin to question why they should
comply with such laws. It is clear that if DoD or Congress does not take
DoD's cleanup and compliance responsibilities seriously, then the worst
possible signal to the private sector and the local and state governments
facing similar cleanup responsibilities will be sent: i.e., the federal
government declaring Ado as I say, and not as I do.@ In an era when
every action taken by Congress or the federal government is examined
under the Aunfunded mandate@ microscope, it is difficult to imagine that
state and local governments would not seek to relieve themselves from
every law, requirement, or regulation from which the federal government
sought relief or with which it refuses to comply.

Specific Comments

While there may be aspects of this bill that are desirable, overall Title III,
the environmental section, seems to be contrary to the spirit of
cooperation that the states have encouraged in the Superfund
Reauthorization process. Indeed, some provisions are unnecessarily
restrictive upon the states.

For example, section 304 attempts to preempt state environmental law
under certain circumstances. This section would require a state to give
up the jurisdiction to enforce its own hazardous waste laws if it also
wanted to enforce CERCLA authorities with respect to the same release.
This would overrule the holding of the Tenth Circuit in U.S. v. Colorado,
990 F.2d 1565 (10th Cir.1993), cert. denied, 114 S.Ct. 922 (1994). This
ruling held that states retain jurisdiction to enforce their own hazardous
waste laws at federal Superfund sites, so long as they do not delay or
interfere with the Superfund cleanup. This common sense ruling would
be overturned if this bill becomes law.

This bill would also impose unreasonable costs upon the states. Section
304 contains a dispute resolution provision concerning remedy selection.
If the parties cannot agree, the state may make the final determination on
remedy selection; however, the state must pay any additional cost
attributable to carrying out the remedial action. This is true regardless
of the merits of the remedy selected. This places the states in an unequal
bargaining position and would give federal facilities an incentive to avoid
or delay good faith negotiations.

This bill is problematic in many other ways. It exempts federal facilities
from certain environmental requirements. This may place a burden upon
the states and local communities around closing bases. After all,
purchasers of former federal facilities are fully liable for the
environmental condition of their property. Thus, any attempt to create a
double standard for federal facilities should be viewed with concern.

Section 303 of this bill would give federal officials 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 insure that funds were requested
in the President's budget. I would first note that federal officials are
already exempt from personal liability for civil penalties under hazardous
waste laws, while acting within the scope of their official duties. This
was part of the compromise achieved in the Federal Facilities Compliance
Act of 1992. Now this bill would add another measure of immunity for
these officers. I question whether this is really needed.

There is no criminal provision in Texas law exactly corresponding to a
failure to take a response action. We do have provisions that make it a
crime for a person intentionally or knowingly to dispose of hazardous
waste without a permit. However, it is unlikely that a criminal action
would be, or could be, brought against a federal official for failing to take
a response action purely because funds were not available. Most
criminal laws, particularly felonies, require not just a criminal act but also
mens rea, or a criminal state of mind. This is variously characterized as
intentional, knowing, willful or wanton conduct. It is hard to see how a
facility manager could be held criminally liable to that standard, if the
official took appropriate steps to ensure that funds were requested. In
summary, this provision seems unnecessary, particularly in view of the
compromise in the Federal Facilities Compliance Act of 1992, which
relieved these officials of civil liability.

I am also concerned about Section 311 of this bill, which would relieve
the DoD of certain obligations at facilities not on the National Priorities List.
 This section would relieve DoD of the obligation to clean up groundwater
to at least the Maximum Contaminate Level goals established under the
Safe Drinking Water Act and the water quality criteria established under
the Clean Water Act, where such goals or criteria are otherwise relevant
and appropriate. I can think of no reason for this lowering of standards.

As for cleanup standards, while it would be highly desirable to clean up
contaminated sites to a level allowing them to be used for all purposes,
that is very expensive in some cases. Texas has adopted an approach
allowing current and reasonably anticipated future uses of a site to be
considered in arriving at cleanup standards. These provisions are
attractive to those conducting the cleanups because of the potential for
cost savings. However, there are definite limits to this approach. Land
use must not be so restricted that its value is destroyed. Otherwise, we
run the risk of turning sections of our industrial land, including federal
facilities, into permanent Brownfields.

Furthermore, we must consider the consequences if land uses change in
the future. DoD is formulating a written policy in which it would decline to
return and conduct an additional cleanup if the future land use changes,
and the remedy is no longer fully protective of human health and the
environment as a result. While it is good to have this policy in writing, it
must be recognized that this may place a considerable burden on
communities who are under pressure to generate jobs lost. I fear that
these communities may agree to limited cleanups in the hopes of speedy
development, only to find that they have compromised their full potential in
later years. At a minimum, the communities and local development
authorities must go into this process with full knowledge of the possible
consequences.

Finally, with respect to section 408, I believe that this section would
terminate existing advisory committees, including the Defense
Environmental Response Task Force (DERTF). I urge the continuation of
DERTF. It is a national model for public participation efforts such as the
Restoration Advisory Boards established at each closing military base. I
believe it has contributed significantly to the base cleanup and
redevelopment effort. It is the only national forum in which state officials
and senior officials from the federal government can study these issues
in an atmosphere of partnership. While the issues are complex and the
discussions sometimes vigorous, I think we have made real progress
with DERTF. The success of this task force mirrors the success of the
base cleanup and redevelopment program nationwide.

Conclusion

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 environmental laws in the guise of defense reform. This title
should be deleted completely from this bill, and if need be, reviewed as
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.

Mr. Chairman and members, again I thank you for the privilege of
submitting this written testimony. If you have any questions, I will be
happy to provide answers as soon as possible.