[Congressional Record Volume 143, Number 131 (Friday, September 26, 1997)]
[Senate]
[Pages S10057-S10058]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ALLARD (for himself and Mr. Wyden):
  S. 1224. A bill to amend the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 to ensure full Federal 
compliance with that Act; to the Committee on Environment and Public 
Works.


             the facility superfund compliance act of 1997

  Mr. ALLARD. Madam President, today, I am introducing, with the 
Senator from Oregon, Ron Wyden, legislation to ensure that Federal 
agencies comply with the Comprehensive Environmental Response, 
Compensation, and Liability Act.
  This same legislation has been introduced in the House of 
Representatives for several years by my home State colleague, Dan 
Schaefer. His leadership in this area has been very important.
  This legislation is very important to the country, but particularly 
to Colorado, where we have had several problems with the Federal 
Government applying one standard for themselves, and a different higher 
standard on private parties. I think this is unfair and should be 
changed. I've always believed that Superfund reform would be easier if 
all parties were in the same bathtub with the same scrub brush.
  I've tried to address Colorado's problems with EPA, but unfortunately 
I've had little success in getting their attention. One example I have 
brought to their attention was a former research institute at the 
Colorado School of Mines in Golden, CO. The research institute at 
Golden was shut down in the late 1980's after years of research had 
been done by the School of Mines, private entities, and several 
agencies of the Federal Government, including the Environmental 
Protection Agency [EPA].
  After the site ceased doing research various environmental 
contaminants were found at the site and in 1992 there was an accident 
that resulted in the contents of a holding pond spilling into Clear 
Creek. While there was no contamination found in Clear Creek, the EPA 
had an emergency response cleanup contractor remove approximately 
22,000 cubic yards of material from the pond and had it placed in a 
temporary stockpile. The EPA then issued a unilateral administrative 
order [UAO] for its disposal. Despite the fact that EPA, the Department 
of Energy, the Department of Defense, and the Bureau of Mines did 
research at the site none of them were the subject of the UAO, even 
though the Bureau of Mines was identified as a potentially responsible 
party [PRP]. Only the State of Colorado, the Colorado School of Mines, 
and the private parties were subject to the UAO. To put it plainly, the 
EPA stuck everyone but their sister agencies with a bill for millions 
on cleanup.
  In the case of the State of Colorado, they have appropriated a total 
of $7.465 million for cleanup to cover their costs and the costs the 
Federal Government should be paying. It's my view that this money could 
be spent much better, or not spent at all. However, to have the State 
spend it because EPA won't enforce and Federal agencies won't be 
responsible is unacceptable. There is also another case in Colorado 
involving a Superfund site in Leadville. Leadville is a small town that 
was the home of Baby Doe Tabor and formerly was the site of a large 
amount of mining. While there is still some mining that occurs in 
Leadville, they are also beginning to rely more on tourism dollars.
  Unfortunately, the city has a stigma attached to it; it is a 
Superfund site. All the homes are a Superfund site, all the schools are 
a Superfund site, all the restaurants are a Superfund site, all the 
businesses on the main street are a Superfund site. They've been told 
that because of various mounds of old tailings laying around, the 
entire city has to be on the national priority list. It's interesting 
to note though, that the safety concerns of EPA seem to stop short when 
it comes to Federal responsibility. This story is one of two water 
treatment plants, one Federal, one private. The private plant, because 
it's on the Superfund site was built at much greater cost than the 
Federal plant, which is conveniently just outside the Superfund site. 
This is despite the fact that the level of contamination is basically 
equal at both locations. While the EPA disputes this claim, the people 
who live in Leadville and work at the cleanup site know the difference.
  In case I'm accused of relying on anecdotes for this legislation let 
me describe two documents that found their way into my office. Let me 
describe them in reverse chronological order, the first is an August 2, 
1996, memorandum which subject is, ``Documentation of Reason(s) for Not 
Issuing CERCLA 106 UAO's to All Identified PRP's.'' I want to quote a 
footnote in this document; it states that, ``Pursuant to the applicable 
procedures, DOJ must concur with any EPA decision to issue a UAO under 
CERCLA section 106

[[Page S10058]]

to a Federal agency.'' So if DOJ doesn't concur EPA won't act. So it is 
revealing to note that a December 15, 1994, letter from a region VIII 
attorney stated that, ``It is my understanding, however, that DOJ has 
never approved of the issuance of a unilateral order to a Federal 
agency.''
  By the Federal Government's own admission they will not enforce 
against a sister agency. Since there is no environmental ``cop on the 
beat'' for Federal agencies, the Federal Government should be relieved 
of their immunity against lawsuits and be treated the same as any 
private party. That includes having to comply with laws that elected 
State legislatures enact. This is what this legislation does. It is my 
intention to see it enacted into law as quickly as possible.
  I want to thank the Senator from Oregon for joining me in this 
effort.
  Mr. WYDEN. Madam President, in 1992, Congress enacted the Federal 
Facilities Compliance Act, which requires Federal facilities to obey 
key environmental laws including the Resource Conservation and Recovery 
Act and State hazardous waste laws.
  However, subsequent Federal court decisions threaten to undermine the 
important principle that Federal Government facilities must comply with 
the same environmental laws that govern the private sector. In fact, 
one court decision that covers the Hanford Nuclear Reservation would 
allow Hanford to poison the water, pollute the air and contaminate the 
soil for decades, and be immunized for any violations that occur before 
the Hanford cleanup is completed sometime in the next century.
  This court ruling allowed the interagency agreement among the Energy 
Department, the Environmental Protection Agency and the Washington 
Department of Ecology that governs the Hanford cleanup to be used as a 
shield to block an enforcement action against the Energy Department for 
violations of the Clean Water Act.
  The Energy Department's use of interagency agreement to bar 
enforcement of environmental laws not only undermines the Federal 
Facilities Compliance Act but also puts at risk the health of citizens 
who live downstream or downwind from Hanford, and near other Federal 
facilities around the country.
  Madam President, we also have a double standard here. The Superfund 
law only authorizes interagency agreements for Federal facilities; 
there is no comparable provision and no comparable immunity from 
enforcement for private sector sites.
  Today, Senator Allard and I are introducing the Federal Facilities 
Superfund Compliance Act to put an end to this double standard. Our 
legislation makes clear that Federal Government facilities are subject 
to the same environmental cleanup laws that apply to the private 
sector. And they are subject to the law now, not sometime off in the 
future.
  Under this legislation, an interagency agreement, such as the Hanford 
Tri-Party Agreement, can no longer be used as a means to evade other 
environmental requirements.
  Our legislation also makes clear that if Federal facilities fail to 
meet their obligations, States and affected citizens will be able to 
enforce against the Federal Government for these violations just as 
they would be able to enforce against private parties for violations of 
environmental laws at a private sector Superfund site.
  Our citizens who live in the shadow of contaminated Federal 
facilities should not have to wait years or decades to obtain the 
health and environmental protections our laws are supposed to provide. 
I urge all our colleagues to support this important legislation to 
provide citizens who live downwind or downstream from Federal 
facilities equal protection under our environmental laws.
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