[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.''
____________________