[Congressional Record Volume 141, Number 65 (Friday, April 7, 1995)]
[Senate]
[Pages S5554-S5556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                        SHORTSIGHTED RESCISSIONS

 Mr. LEVIN. Mr. President, the rescission bill approved by the 
Senate last night included a very short-sighted cut, which I strongly 
opposed. The bill we sent to conference with the House rescinds $93.5 
million for the base realignment and closure account for the 1993 round 
of military facility closures, and another $10.6 million for the base 
realignment and closure account for the 1991 round of facility 
closures. These BRAC accounts provide the funds to close and realign 
military bases including, most urgently, to clean up an environmental 
contamination that the military services caused while they occupied 
those facilities.
  During consideration of the bill, I voted for the Mikulski amendment, 
which would have restored funds for cleanup of closing bases and funds 
for other important national programs. Now, I strongly encourage the 
conference committee to restore these funds.
  When we voted for base closures over the last 5 years, we also 
committed to complete environmental restoration and remediation at 
those facilities quickly, in fact within a maximum of 5 years from the 
time closure was approved. I consider that a solemn commitment from us, 
and from President Clinton to the affected communities, which spent 
years as good neighbors to the military, providing all kinds of 
support. Each of those communities was serving our country with their 
support of local military facilities. The President and Department of 
Defense have tried to keep this commitment by requesting full funding 
for BRAC activities. We appropriated most of what was asked for last 
year. It would be a mistake to rescind more funding.
  Mr. President, not only is it wrong to renege on the commitment we 
made to cleanup swiftly the military bases we have ordered to close, so 
that reuse there is possible. Underfunding this activity by rescinding 
fiscal year 1995 BRAC funds is also short-sighted. It's probably not 
even penny-wise, but it is certainly pound-foolish.
  In many cases, Federal and State laws require this cleanup. At some 
bases, consent agreements now dictate specific cleanup activities and 
deadlines, the cost of which must be paid from the BRAC accounts. So 
BRAC rescissions are false savings. We still have to complete these 
environmental restoration activities. When we delay, it becomes more 
expensive, because the contamination in many cases gets worse. Soil and 
groundwater contamination can spread. And if consent agreements are 
violated because of lack of funds, the Federal Facilities Compliance 
Act says the Federal Government may be subject to fines and penalties.
  The Governor of California, Pete Wilson, recently wrote to the 
Secretary of Defense on this subject, saying:

       The continued erosion of cleanup funding inevitably will 
     threaten the health of armed services personnel and civilians 
     who work at military bases where contamination is present. It 
     will also exacerbate economic suffering in
      communities that are struggling to redevelop closing bases. 
     And, if the federal government will not meet its cleanup 
     obligation, how can we expect private industry to do so? 
     DOD is contractually obligated to seek sufficient funding 
     to permit environmental work to proceed according to the 
     schedules contained in those agreements. California will 
     not hesitate to assert its right under those agreements to 
     seek fines, penalties and judicial orders compelling DOD 
     to conduct required environmental work.

  The attorney general of Texas expressed similar sentiments in a 
letter to the Pentagon, saying:

       If, in other words, the DOD and the federal government do 
     not comply with all applicable cleanup laws, then other 
     entities may begin to question why they should comply with 
     cleanup laws. Hopefully, we have not reached the point of the 
     federal government taking the position of ``do as I say, and 
     not as I do.''

  I would ask that the entire letter of January 25, 1995 from Governor 
Wilson to Secretary Perry, and the December 29, 1994 letter from 
Attorney General Dan Morales to Under Secretary of Defense Sherri 
Wasserman Goodman be printed in the Record.

                                               Sacramento, CA,

                                                 January 25, 1995.
     Hon. William Perry,
     Secretary of Defense, The Pentagon,
     Washington, DC.
       Dear Secretary Perry: I would like to express may deep 
     concern about recent actions at the Department of Defense 
     (DOD) and in Congress regarding cuts in funding for 
     environmental restoration of military bases.
       The recent decision by Congress to cut $400 million from 
     the Defense Environmental Restoration Account (DERA) for FY95 
     continues a disturbing trend begun last year when Congress 
     rescinded $507 million from the Base Realignment and Closure 
     (BRAC) Account. California was reassured that the BRAC 
     recission would not affect environmental work at closing 
     military bases, but work was indeed scaled back at several 
     California military bases due to the cut. The DERA cut 
     presumably means that DOD will seek to postpone or eliminate 
     environmental work at operational military bases.
       At the same time, the DOD Comptroller has announced an 
     additional $437 million in cuts for cleanup programs through 
     FY97. Such actions can only encourage members of Congress who 
     would like to redirect DOD environmental spending into more 
     traditional defense programs.
       The continued erosion of cleanup funding inevitably will 
     threaten the health of armed services personnel and civilians 
     who work at military bases where contamination is present. It 
     will also exacerbate economic suffering in communities that 
     are struggling to redevelop closing bases. And, if the 
     federal government will not meet its cleanup obligation, how 
     can we expect private industry to do so?
       California expects DOD to comply with the federal/state 
     cleanup agreements it has signed at California military 
     bases. DOD is contractually obligated to seek sufficient 
     funding to permit environmental work to proceed according to 
     the schedules contained in those agreements. California will 
     not hesitate to assert its right under those agreements to 
     seek fines, penalties and judicial orders compelling DOD to 
     conduct required environmental work.
       I would be happy to work with you to strengthen support in 
     Washington for full funding of DOD cleanup work. One way to 
     reduce oversight costs would be to delist military bases from 
     the National Priorities List and give states the exclusive 
     responsibility for overseeing base cleanups. Please do not 
     hesitate to contact me if I can be of assistance in these 
     areas.
           Sincerely,
     Pete Wilson.
                                                                    ____

                               Office of the Attorney General,

                                    Austin, TX, December 29, 1994.
     Re additional comments to the Defense environmental response 
         task force fiscal year 1994 annual report to Congress.

     Ms. Sherri Wasserman Goodman,
     Deputy Under Secretary of Defense (Environmental Security), 
         Defense Pentagon, Washington, DC.
       Dear Ms. Goodman: I continue to believe that much progress 
     has been made in the cleanup program of the Department of 
     Defense (``DoD'') as a result of the work done by you and 
     your office. It is important, however, that the policies 
     declared at the headquarters level continue to permeate down 
     through the Services to the base or facility level. I am not 
     quite sure at this point, in other words, that all of the 
     policies and efforts set forth at the headquarters level have 
     been fully embraced or implemented at the facility level.
       Because of possible adverse effects on future cleanups at 
     closing bases, I am deeply concerned about recent action 
     taken by the DoD Comptroller with regard to the DoD 
     environmental remediation and compliance budget. I understand 
     that the Comptroller desires to cut over a half-billion 
     dollars from the DoD's request for environmental cleanup and 
     compliance. Not only would such a cut be short-sighted, I 
     firmly believe that it would be unlawful if it is the case 
     that all of the legal requirements facing the DoD could not 
     be met (as a financial or budgeting matter) in accordance 
     with Executive Order 12088 (Federal Compliance with Pollution 
     Control Standards (Oct. 10, 1978)) and the many federal 
     facility and state cleanup agreements entered into in good 
     faith by the DoD. While saving taxpayers' money and ensuring 
     military readiness are surely critically important 
     objectives, the compliance by DoD with all applicable laws 
     purposed at protecting 
      [[Page S5555]] our citizens' health and safety is also 
     extremely important. Unfortunately, DoD appears to be sliding 
     towards the purposeful disregard of its cleanup obligations.
       More fundamentally, I am perplexed that a certain element 
     within DoD apparently does not believe that a safe and 
     healthy work and living environment for our servicemen and 
     women (and their families) is important for their well-being, 
     as well as for our national security. Surely, the people who 
     are responsible for defending this country should be accorded 
     the same degree of protection from carcinogens and other 
     hazardous substances accorded workers and their families in 
     the private sector.
       Furthermore, I assume that the Comptroller does not intend 
     for the DoD to shirk its responsibility to protect the health 
     and safety of the communities surrounding defense bases, 
     especially if those communities consist of groups, such as 
     Hispanics and African-Americans, which have historically been 
     the victims of environmental injustice. We cannot pull the 
     ladder up on these groups by cutting the environmental 
     cleanup and compliance budget so soon after finally 
     initiating environmental justice efforts.
       Lastly, regarding the remediation funding issue, it is 
     clear that if DoD does not take its cleanup responsibilities 
     seriously enough to request adequate funding, then DoD will 
     be sending the worst possible signal to the private sector 
     and the local and state governments facing similar cleanup 
     responsibilities. If, in other words, the DoD and the federal 
     government do not comply with all applicable cleanup laws, 
     then other entities may begin to question why they should 
     comply with cleanup laws. Hopefully, we have not reached the 
     point of the federal government taking the position of ``do 
     as I say, and not as I do.''
       Aside from comments regarding the DoD Comptroller budget 
     cutting issue, I hereby submit additional comments to the 
     1994 Defense Environmental Response Task Force (``DERTF'') 
     Annual Report to Congress:
       1. Future Land Use. Whether future land use should be a 
     factor in determining if DoD property is contaminated, or to 
     what standards the property must be cleaned up, are policy 
     questions ultimately to be decided by Congress. Until 
     Congress expressly decides, however, whether the 
     consideration of future land use is appropriate in the 
     cleanup context, DoD must comply with all existing applicable 
     requirements of the U.S. Environmental Protection Agency 
     (``EPA'') and the respective states in determining what 
     constitutes ``all remedial action'' necessary to protect the 
     human health and environment. Thus, whether future land use 
     is a legitimate or legal consideration in establishing 
     appropriate cleanup levels currently depends upon whether the 
     regulators allow such consideration, either explicitly or 
     implicitly.
       As my office has frequently stated during the DERTF 
     proceedings, attempts to subsidize economic redevelopment of 
     bases by allowing the cleanup standards to be loosened may be 
     problematic in the long run for our communities, citizens, 
     and base transferees, as well as short-sighted for DoD. It is 
     still unclear to me whether the following issues have been 
     carefully thought through:
       (1) Who or what entity decides future land use?
       (2) What happens when a community decides in the future to 
     change the use of the transferred property?
       (3) What happens when cleanup standards related to a 
     certain use are ratcheted upwards by EPA or by the respective 
     states?
       Until the answers to such issues are further refined and a 
     consensus is reached by all stakeholders, I caution against 
     moving too quickly to short-term solutions that may be more 
     budget-based than health and safety-based.
       2. Harmonization with Private Sector Standards. The goal of 
     trying to quickly-transfer bases to our communities is to 
     ensure quick development in order to create jobs and promote 
     the economic health of our communities--it is not the quick 
     transfer of bases for the mere sake of quick transfer. 
     Unless, however, private sector lenders, developers, and 
     investors are sufficiently comfortable that they will not 
     face potential environmental liability, they simply will not 
     get involved in the redevelopment of a closed base.
       Thus, it is critical that DoD's investigative, remedial, 
     and transfer processes mirror the processes found in the 
     private sector. For example, the investigation and 
     remediation processes established by the Services should 
     reflect and fulfill the same requirements, roles, and 
     functions as environmental due diligence efforts in the 
     private sector. Failure to harmonize efforts between the DoD 
     and the private sector in this regard will only result in 
     delay subsequent to the transfer of closed bases. I have 
     instructed my office to continue to encourage DoD to make 
     every effort to harmonize, to the extent allowed by law, its 
     investigative, remedial, and transfer practices with private 
     sector practices.
       3. Base Transfers Prior to Remedial Action. The DERTF 
     Annual Report indicates that the DERTF proposes to examine 
     possible changes in the law to allow property to be deeded 
     before remedial actions are in place and properly and 
     successfully operating, so long as there is no increased 
     threat to human health and the environment.
       Section 120(h)(3) of CERCLA requires that each deed 
     transferring federal property contain a covenant warranting 
     that all remedial action necessary to protect human health 
     and the environment has been taken and that any additional 
     remedial action found to be necessary after the transfer 
     shall be taken by the government. Generally this means that 
     base property cannot be transferred before it is cleaned up. 
     This important statutory requirement helps to protect future 
     occupants from harm, and the United States from liability. In 
     light of the Anti-Deficiency Act and other barriers to the 
     ensuring of sufficient funding for cleanups, the requirement 
     of base cleanup before transfer provides the one sure means 
     of ensuring that there will indeed be cleanup of the facility 
     to be transferred.
       The risks involved in deeding property before cleanup is 
     completed in accordance with all applicable law outweigh any 
     potential benefits of such premature deeding, in my opinion. 
     Even if deeding contaminated property does not actually 
     increase the threat to human health, it will reduce DoD's 
     control over the transferred property, breach an important 
     regulatory checkpoint, and increase the legal risks to all 
     parties. I continue to believe that this option should be 
     rejected by the DERTF.
       There is, furthermore, no statutory cleanup completion 
     requirement for leases. While it may be, as the Services are 
     claiming, that leases are not being used by the Services in 
     order to avoid their cleanup responsibilities or to 
     circumvent the ultimate purpose of CERCLA, long-term leases 
     are clearly being used to avoid--strictly speaking--the 
     provisions of CERCLA Sec. 120(h)(3). While leases can and 
     have been used to facilitate reuse in conjunction with 
     remediation on terms that are fully protective of human 
     health and the environment, it is critical that the Services 
     maintain adequate control over the leased property in order 
     to ensure that public health and safety are protected, that 
     cleanup activities are facilitated, and that the lessee is 
     not doing anything that might increase the legal liability of 
     the government or any other party. I am not confident at this 
     point that sufficient institutional controls akin to those 
     established in the private sector long-term property 
     management have yet been developed by DoD in the base closure 
     context.
       4. Indemnification of Future Owners. The Annual Report 
     points out that the Defense Authorization Act for Fiscal Year 
     1993 (``Act'') contains provisions to indemnify transferees 
     from environmental liability, and implies that no further 
     study of indemnification is needed. The Act indemnifies 
     states, political subdivisions and any other person or entity 
     that acquires ownership or control of a closing base from 
     suits arising out of any claim for personal injury or 
     property damage resulting from the release or threatened 
     release of hazardous substances.
       Clearly, the federal government is solely responsible for 
     cleaning up contamination caused by its activities prior to 
     base closure. CERCLA, however, provides as a general matter 
     that the current owner (i.e., the transferee receiving title 
     to the closed base) is jointly and severally liable for 
     response costs. Thus the transferee may be found jointly and 
     severally liable for the cost of clean up residual 
     contamination left from military activities notwithstanding 
     the provisions of CERCLA Sec. 120(h)(3). I am unsure whether 
     the indemnity provision cited above unambiguously provides 
     otherwise. I recommend that DERTF study this issue and that 
     the Act be clarified to comply with the common understanding 
     of the government's responsibilities.
       In any event, while who ultimately is responsible for 
     response costs is a relatively straightforward legal issue, 
     determining whose ``molecules'' are contaminating the 
     groundwater or soil may be a very difficult factual issue--an 
     issue that may only be determined after much litigation and 
     much expense for all parties concerned.
       I look forward to continuing my office's participation in 
     the DERTF proceedings. As we move on to the next round of 
     base closures, it is critical that we continue to improve the 
     base cleanup and transfer process. Thank you for the 
     opportunity to add my comments to the DERTF Annual Report to 
     be submitted to Congress.
           Sincerely,
                                                      Dan Morales,
                                        Attorney General of Texas.

  Mr. LEVIN. Mr. President, the Senate bill rescinds fiscal year 1995 
BRAC funding that DOD did ask for and that we appropriated, as we 
should have. If the conference committee accepts these rescissions in 
the BRAC accounts, it will further slow cleanup that has already been 
delayed by previous cuts. Last year Congress rescinded half a billion 
dollars from BRAC accounts to pay part of the cost of earthquake 
recovery in California. That reduction was spread by the Department of 
Defense among many facilities, and the pace of cleanup was slowed.
  I know some in Congress have attacked environmental restoration as 
not a legitimate Pentagon expenditure. But where the military caused 
environmental damage, especially where it now interferes with 
productive reuse of land and property in the middle of severely 
dislocated communities, that damage constitutes a real cost of military 
activities. It is just a deferred cost 
 [[Page S5556]] created by the Federal Government, a bill that has not 
yet been paid. We must pay it. We promised to pay it, and the BRAC 
accounts hold the funds.
  The Department of Defense strongly supports these BRAC expenditures. 
Air Force Secretary Sheila Widnall told the Armed Services Committee:

       I cannot think of anything more short-sighted than to not 
     fund for to rescind environmental cleanup money for BRAC 
     bases.

  Secretary of Defense Perry told the Budget Committee:

       That work has to be done, there's no doubt. This 
     environmental cleanup we're doing is legislatively required. 
     It's not as if it's a discretion on the part of the Defense 
     Department.

  Reducing our excess military facility capacity is necessary, Mr. 
President, but it is extremely painful for local communities whose 
economics have become reliant on a facility over many decades. Base 
closure causes a huge economic and social disruption, especially in 
smaller, rural communities where a base has dominated the local job 
picture. At lest 30 Sates are already directly affected by base 
closures initiated in the 6 years, and additional bases are scheduled 
to be identified this summer for closure.
  The base closure process has been devastating to military facilities 
in my own State of Michigan. We have now lost all three of our active 
Air Force bases, a number of smaller facilities, and still more 
closures have been proposed in Michigan for the current BRAC round IV. 
If the reductions proposed in this Senate bill are approved by the full 
Congress and signed into law by the President, the impact will be felt 
in many communities with closing bases from BRAC rounds II and III that 
are currently struggling to survive, including Wurtsmith Air Force Base 
in Oscoda and K.I. Sawyer in Gwinn, MI. These communities are trying to 
attract new businesses with new jobs, and the land and property that 
has been contaminated by the military cannot be made available for 
other use until it is cleaned up. That takes money, and the money must 
come from these BRAC accounts.
  Mr. President, last month 17 of my colleagues in the Senate wrote to 
the chairman and ranking member of the Senate Appropriations Committee. 
We urged the committee to fully fund environmental cleanup at closed 
military bases, and specifically to not rescind fiscal year 1995 funds. 
I ask that the full letter, signed by 18 Senators, be printed at this 
point in the Record.
  The letter follows:

                                                  U.S. Senate,

                                Washington, DC, February 27, 1995.
     Hon. Mark O. Hatfield,
     Senate Appropriations Committee, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: When the President and Congress 
     initiated the process of closing military bases, we made a 
     solemn commitment to complete environmental restoration and 
     remediation at those facilities quickly. We recognized that 
     cleanup is essential before property can be released by the 
     government and reused by local communities trying to rebuild 
     their economies and attract new jobs. Congress must not now 
     renege on this commitment by underfunding the Base 
     Realignment and Closure (BRAC) accounts that pay for this 
     cleanup.
       Our nation's military facilities infrastructure must be 
     reduced commensurate with the downsizing of armed forces. At 
     least 30 states are already directly affected by base 
     closures initiated in the first three rounds of the closure 
     process, and additional bases are scheduled to be identified 
     for closure this summer. Where the federal government has 
     caused environmental contamination during its tenancy, that 
     damage must be substantially repaired before property can be 
     transferred to a state, locality or private owner for 
     productive reuse. Environmental damage is a real cost 
     incurred as a result of DOD activities and it should be paid 
     for out of the DOD budget.
       In many cases, federal and state laws govern the cleanup 
     activities required, and at some bases the relevant parties 
     have negotiated consent agreements mandating specific cleanup 
     deadlines. Costs associated with thses activities are paid 
     for from the BRAC accounts, which the Administration and 
     Congress have funded adequately in recent years.
       Defense Secretary William Perry recently testified to the 
     Senate Budget Committee that ``This environmental cleanup 
     we're doing is legislatively required. It's not as if it's a 
     discretion on the part of the Defense Department. That work 
     has to be done, there's no doubt.'' And Air Force Secretary 
     Sheila Widnall testified last year that ``I cannot think of 
     anything more short-sighted than to not fund or to rescind 
     environmental cleanup money for BRAC bases.''
       For all of these reasons, we request that you reject any 
     rescission of FY 1995 funds in this area, and that you 
     support full funding of the Department of Defense FY 1996 
     request for Base Realignment and Closure cleanup activities.
       Thank you for your consideration.
           Sincerely,
         Patrick Leahy, Daniel K. Akaka, Barbara Boxer, Ben 
           Nighthorse Campbell, John Lieberman, Frank R. 
           Lautenberg, John F. Kerry, Carl Levin, Claiborne Pell, 
           Patty Murray, David Pryor, Herb Kohl, Chuck Robb, Paul 
           Sarbanes, Tom Daschle, Dianne Feinstein, Olympia Snowe.

  Mr. LEVIN. We hope that the committee would heed our advice. Now it 
is vital that the conference committee restores these funds so that 
cleanup goes forward without delay, and productive reuse in communities 
with closing bases can be accomplished swiftly.
 Mr. HATFIELD. Mr. President, President Franklin Delano 
Roosevelt will live forever in the hearts and minds of Americans. This 
memorable leader helped to lead this country through both a worldwide 
depression and a world war, and when he died he left the country 
positioned to take its place as the leader of the free world. Fifty 
years ago April 12, the people of our great country lost a President, a 
statesman, and a leader.
  Since 1971 I have had the honor to have served on the Franklin Delano 
Roosevelt Memorial Commission, the past 5 years of this time serving as 
the cochairman with my distinguished colleague from Hawaii, Senator 
Inouye. This Commission was formally established by Public Law 372 in 
1955 with the responsibility of constructing an appropriate memorial to 
the 32d President of the United States. That memorial, which is to be 
unveiled in 1997, is a tribute not only to Roosevelt the President, but 
also to an era.
  I was 10 years old when Franklin Roosevelt was elected President, I 
was a 20-year-old naval officer in the waters off Okinawa when I heard 
the news that the President had died. Millions of Americans, like 
myself, had grown up with the Roosevelts. To many it seemed that he 
would be President forever. Suddenly, while the United States are still 
engaged in war, our Commander in Chief was gone. The feeling was one of 
loss and uncertainty, Roosevelt was to many Americans the only 
President we had known, to millions he was a hero and a friend. The 
future suddenly became uncertain for those at home and overseas.
  That uncertainty soon turned to confidence as the war was won and the 
United States took its place not only as the champion of freedom and 
peace but as the most prosperous nation the world has ever known. 
Roosevelt had ensured the future of the country by preparing it for the 
demands of the 20th century.
  It was Roosevelt's dedication to the future of this country which 
instigated such universally accepted successes as the GI bill of rights 
and the Social Security Act. The GI bill assisted over 50 percent of 
the returning soldiers, sailors, marines, and airmen, guaranteed for 
the United States an educated and skilled populace unrivaled in the 
world. While the GI bill provided for those upon whose backs the future 
lay, the Social Security Act helped those who had already carried the 
burden.
  As is now well known, Franklin Roosevelt fought a constant battle 
with the crippling effects of polio even as he waged war against the 
Great Depression and the forces of fascism. His accomplishments as 
President serve as the greatest testament to his personal victories, 
and he survives still as an example of the human ability to challenge 
and overcome even the greatest of obstacles.
  Mr. President, the life and Presidency of Franklin Delano Roosevelt 
serves as a reminder to each of us, to my colleagues in the Senate and 
to the people all across this country, of the ability of the American 
people to face up to and overcome any and all challenges. To look the 
uncertainties of the future in the face and to move forward with 
confidence and an unshakable faith. This is indeed Roosevelt's longest 
and best lived legacy, his eternal challenge to each and every one of 
us. For as he wrote soon before his death, ``The only limit to our 
realization of tomorrow will be our doubts of today. Let us move 
forward with strong and active faith.''




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