Attached is an analysis for your information from Leonard Siegel of the Pacific Studies Center regarding environmental aspects of the defense reform bill soon to be debated in Congress. There are many anti-environmental provisions, or at least provisions that look that way, and there are likely to be more amendments which will have a negative environmental impact.
-- BEGIN included message
- Subject: "DEFENSE REFORM" ANALYSIS
- From: Pacific Studies Center <firstname.lastname@example.org>
- Date: Sun, 08 Jun 1997 14:49:36 -0700 (PDT)From: Pacific Studies Center <email@example.com> THE DEFENSE REFORM ACT OF 1997 (H.R. 1778) analysis by Lenny Siegel The environmental provisions (Title III) of HR 1778, the Defense Reform Act of 1997, appear to be attempt at an end run around the Superfund Reauthorization process. Subtitle A (Sections 301-304) would amend CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, affecting non- federal sites as well as federal cleanup projects. Subtitle B (Sections 311-315), targeted directly at the Departments of Defense and Energy, includes provisions that would amend other environmental legislation. HR 1778 is scheduled for mark-up - that is, modification by the House National Security Committee (HNSC) as a whole - on Wednesday, June 11. If the Committee asks to bring it to the House floor, as a stand-alone piece of legislation, it is likely that it will be referred to the two House committees with primary environmental jurisdiction, Commerce and Transportation & Infrastructure. That would subject the environmental language Title III to the same scrutiny and debate as other environmental legislation. However, it's probable that once mark-up is completed, the bill will be broken up and offered as amendments to other legislation, such as the Defense Authorization Act, under floor rules that limit modification. That's why national environmental organizations and many state officials are urging that the environmental provisions simply be stricken from the act. It's too soon to predict how much momentum Title III has. In fact, I don't know yet who is behind it. Though some of its provisions appear simply to reinforce existing policy or repeat ideas already in Clinton Administration Superfund proposals, most raise serious questions. There is no question, however, that if this legislation is enacted as is, that it will greatly affect the way that the federal government, as well as other responsible parties, approaches the cleanup of hazardous waste. The substance of the bill, combined with the indirect approach to passage, is likely to generate a firestorm of bi-partisan opposition from state officials and public stakeholders across the country. Like most existing cleanup laws, nothing in this bill defines or modifies the role or Native American or Native Alaskan tribal entities in the environmental regulatory process. Finally, though the legislation is sponsored by HNSC chairman Floyd Spence (R-South Carolina) and ranking Democrat Ronald Dellums (D-California), Dellums made clear in the Committee's press release that he does not "personally agree with all of the provisions contained in the legislation ." In addition to environmental reforms, HR 1778 includes titles on Personnel Reform, Business Practice Reform, and Miscellaneous Reforms designed to streamline Department of Defense operations. (I have not reviewed those other titles.) The following is my preliminary section-by-section analysis of Title III of HR 1778. I would appreciate responses from others who can better explain better how the proposed language relates either to existing law or to the range of Superfund and other proposals already under consideration in Washington today. Because of the short-time frame I have to review the bill, I am doing this on the week-end without full access to my files. Much of the bill places authority for making decisions in the hands of the President, not the Administrator of the Environmental Protection Agency. As such, it could transfer authority over key environmental decisions at federal facilities from regulatory agencies to regulated (polluting) agencies. SUBTITLE A SECTION 301. REVISION OF METHODS OF REMEDIATION (Remedy Selection) Existing law governing the remediation of hazardous waste establishes a preference for treatment that reduces the toxicity, mobility, or volume of contaminants. HR 1778 would remove that preference, putting permanent treatment on par with containment or other engineering controls, except for hot spots. Hot spots are defined as discrete areas where "hazardous substances, pollutants, or contaminants" either are "present in high concentrations, are highly mobile, and cannot be reliably contained" or "would present a significant risk to human health or the environment." However, containment may be still selected as the remedy for a hot spot in a landfill, mining site, or a similar facility if it is small and "not readily identifiable and accessible." Furthermore, it provides for institutional controls, such as restrictions on land or water use, but it offers no mechanism for enforcing them over the life of the risk. This section may actually be more moderate than versions in other pending pieces of legislation, but if enacted it would dramatically limit the amount of cleanup conducted at all sites subject to the legislation and significantly reduce the incentive to develop innovative cleanup technologies. SECTION 302. REQUIREMENT TO CONSIDER REASONABLY ANTICIPATED LAND USE Current law already provides for the consideration of "reasonably anticipated future land use" in the selection of soil and sediment remediation strategies. This section appears to clarify the process for determining that anticipated use, possibly giving the Defense Department and Energy Department final decision-making authority at their sites. It states, "In identifying reasonably anticipated future land uses, the President shall consider factors that include the following:" "(A) views expressed by members of the affected community." (B) Where transfer of a federal property, such as from a base closure, is scheduled, "any joint consensus recommendation" of a technical review committee, restoration advisory board, local land use redevelopment authority, and another appropriate State agency or an Energy Department citizen advisory board. (C) The land use history, current uses, and development patterns of the facility and surrounding properties. (D) State and federal land use plans, including national parks, and state water protection plans. (E) Current local zoning and land use plans. (F) The potential for economic redevelopment. (G) Proximity to population, sensitive ecosystems, and unique historic or cultural resources. (H) Plans by property owners. While the list is properly inclusive, the language appears to give the federal government the ability to impose unilaterally land use restrictions as a substitute for cleanup. At closing military bases, this may mean that the responsible armed service could use this legislation to make its own determination of reasonably anticipated future land use as a way of holding down cleanup costs. Currently there is more give-and-take in the process, although local governments have urged legislation reinforcing their land use planning jurisdiction. SECTION 303. LIMITATION ON CRIMINAL LIABILITY OF FEDERAL OFFICERS, EMPLOYEES, AND AGENTS. Simply, the section states that government employees and agents shall not be held criminally liable for failure to take required response actions at federal facilities unless they fail to fulfill their obligations to request money to meet those agreements under Executive Order 12088, or if appropriated funds were available. That is, government employees wouldn't be thrown in jail because Congress does not appropriate adequate funds to meet cleanup agreements. I don't know that anyone has ever been jailed under the conditions addressed by this section, but I have heard high level federal officials testify that they were worried about the potential. Of course, it's hard to tell whether the fear was genuine or just a ploy to extract more money from Congress. SECTION 304. STATE ROLE AT FEDERAL FACILITIES (Transfer of Authorities) This section would allow the EPA Administrators to transfer to state regulatory agencies Superfund (CERCLA) regulatory authority currently held by EPA at federal facilities. States with strong regulatory programs have long argued for such transfers, but environmental activists want strict conditions on the transfer of authorities as way of preventing a race to the bottom, in which states compete for investment by further weakening their environmental laws. In particular, environmental justice groups in the south seek to retain a federal role as a way of balancing the historically racist practices of their state governments. The process, detailed in this section, for determining whether to transfer authorities is long and complex, and I have not participated directly in this debate for a few years. But except for the following provision, it appears to be headed in the right direction. I have not yet seen any reactions from state representatives, however. Where states exercise CERCLA authority, the section provides for a dispute resolution procedure that ends with the head of the Federal department or agency, on the one hand, and the state's governor, on the other. So far, so good. But the follow-up provision is frightening: "If no agreement is reached between the head of the Federal department, agency, or instrumentality and the Governor, the State may issue the final determination, except that the state shall pay or assure the payment of any additional costs attributable to carrying out the remedial action selected by the State." That is, if the state is dissatisfied with a federal department's proposal to deal with hazardous waste clearly released by that department, and it wants to provide more extensive protection of public health and the environment, then the polluter no longer must pay. The state picks up the tab. SUBTITLE B SECTION 311. STANDARDS FOR REMEDIAL ACTIONS CONDUCTED AT DEFENSE FACILITIES NOT ON THE NATIONAL PRIORITIES LIST. The HNSC press release states: "Unlike either the private sector or any other federal agency, current law requires a higher standard of cleanup for DOD [Department of Defense] contaminated sites not on the National Priorities List (NPL). This provision would apply the same standard to the cleanup of DOD's non-NPL sites as is currently applied to the private sector and to other federal agencies." Specifically, Section 311 exempts non-NPL Defense facilities from requirements "relating to the attainment of a relevant and appropriate standard, requirement, criteria [sic], or limitation" - commonly known as ARARs. That is, when a remedy is being selected, state and local laws governing or relating to cleanup could not be used to impose stricter standards than federal ones unless the property is on the NPL. I believe that the HNSC position misunderstands or mis-states the current situation. In many (most?) states, the cleanup of non-federal non-NPL sites is governed by other laws. In fact, those laws often define the requirements which are also imposed through the CERCLA ARAR process. Despite a favorable appeals court decision, the direct applicability of state laws to federal cleanup sites remains in dispute. I await the comments of others more familiar with the legal intricacies of ARARs, but it appears that this provision would actually move Defense facilities from parity with non-federal sites to a position of inferior regulation. SECTION 312. AUTHORITY OF SECRETARY OF DEFENSE AND SECRETARY OF ENERGY TO TERMINATE LONG- TERM OPERATION AND MAINTENANCE OF REMEDIAL ACTIONS AND CORRECTIVE ACTIONS. Under both CERCLA and RCRA Section 3004 (Corrective Action), the Secretaries of Defense and Energy are authorized to "terminate the long-term operation and maintenance of a completed remedial action in any case in which the Secretary determines, with the concurrence of the Administrator or appropriate State and local authorities" that the contamination is no longer a threat. I am confused by this section. If "concurrence" means that regulators can veto the termination of operation and maintenance, then I don't know what this section adds to current laws. If it merely means they will have the opportunity to comment on the regulated agency's plans, then it could lead to the widespread premature halt of activities - be they treatment or simply institutional controls - required to protect public health and the environment. SECTION 313. NOTIFICATION TO CONGRESS OF COSTS OF DEPARTMENT OF ENERGY ENVIRONMENTAL COMPLIANCE AGREEMENTS. This section requires the Energy Department, when negotiating a cleanup or other environmental agreement with regulatory agencies, to notify Congress of the long-term and annual costs of such an agreement before entering into such an agreement. Congress currently plays no statutory role in such negotiations. While the actual disclosure of cost estimates is generally a good thing, the intent of this provision appears to be to give members of Congress who are hostile to cleanup the information they need to oppose more effectively activities necessary to address the enormous environmental threat posed by contamination at the nation's nuclear weapons production complex. As written, this section ignores the efforts of the Energy Department, regulators, and other stakeholders, working through the Federal Facilities Environmental Restoration Dialogue Committee and other forums, to address the tension between regulatory requirements and the federal budget. SECTION 314. CLEAN AIR ACT STANDARDS FOR MILITARY SOURCES. This section appears to extend Clean Air Act exemptions which are already in effect on the date of enactment to new standards being developed by EPA to limit ozone (smog) or particulate pollution. I don't know this area well, but it would appear to allow the military to continue indefinitely to pollute the air simply because its national security activities are considered more essential than those of other polluters. SECTION 315. AUTHORITY OF ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY WITH RESPECT TO APPLICATION OF SOLID WASTE DISPOSAL ACT TO STORED MILITARY MUNITIONS. This states, "The authority of the Administrator ... includes the authority to provide for unexpended military munitions in storage to not be considered hazardous waste for purposes of this subtitle." It appears to be designed to protect the storage provisions of the Military Munitions Rule, promulgated by EPA in February, 1997, against litigation. Currently the Military Toxics Project is challenging the Munitions Rule in court, arguing, among other concerns, that EPA may not legally to give the Defense Department authority to regulate its own hazardous waste storage. This provision invents the term "unexpended munitions" and says that they aren't wastes. Though the military's storage of waste conventional munitions has not been a problem, I do have concerns about the principle of self- regulation. I'm even more concerned about the executive branch overstepping itself in a Congressionally mandated rulemaking, and then (it appears) seeking to change the statute to justify the promulgated rule retroactively. I APOLOGIZE IF I HAVE MISCHARACTERIZED ABOVE EITHER EXISTING LAW OR THE PROVISIONS OF H.R. 1778. MANY OF US HAVE BEEN WORKING, IN MULTIPLE VENUES, TO UNDERSTAND AND RESOLVE COMPLEX ISSUES REGARDING CLEANUP AND FEDERAL ENVIRONMENTAL COMPLIANCE. TO EXPECT FULL CONSIDERATION OF THE ISSUES, LET ALONE AN ACCURATE READ OF THE LEGISLATIVE PROPOSALS, IN LESS THAN A WEEK IS UNREALISTIC.
-- END included message