Statement of Administration Policy: S. 596 - Federal Facility Compliance Act of 1991

(Senate)
(Mitchell (D) Maine and 48 others)

The Administration is committed to ensuring Federal facility compliance with environmental statutes and to improving the environmental performance of Federal facilities. The President's FY 1992 Budget includes $7.1 billion to speed the cleanup of Federal facilities — an increase of 24 percent over FY 1991 and 89 percent over FY 1990.

S. 596 would allow the assessment of fines, penalties, and orders against Federal agencies for violations of Federal, state, interstate, and local hazardous and solid waste requirements under the Resource Conservation and Recovery Act (RCRA). S. 596, however, will not achieve its desired environmental improvements, because the bill does not address the problems specific to Federal facilities that have led to difficulties in complying with environmental law. The Administration has provided Congress with amendments which will ensure that the authority provided in S. 596 to impose fines, penalties, and administrative orders is exercised within a fair, workable statutory and regulatory framework.

The Administration strongly opposes S. 596, as reported by the Environment and Public Works Committee, and will continue to seek its amendments during further congressional consideration of this legislation. If the Administration's amendments are adopted, the Administration would support S. 596. The Administration's amendments include:

—   Mixed Waste Treatment Technology Development - It is widely known that it is impossible to comply with certain statutory storage restrictions for radioactive mixed wastes because treatment technology or capacity for these wastes does not currently exist. The Administration's amendments provide for the development of a national compliance plan to establish schedules for development of the necessary treatment technology and capacity within enforceable prescribed time- frames.

—   Military-Essential Activities - The Administration's amendments provide for the development of regulations that permit the conduct of military-essential activities (e.g., the manufacture, testing, and handling of ordnance and munitions) and fully protect human health and the environment. Existing regulatory requirements can lead to unsafe practices and may hinder the ability of the U.S. military to function effectively.

In addition, the Administration's amendments provide for the development of alternative waste management requirements where existing requirements for radioactive mixed waste would result in radiological exposure of workers that exceeds applicable numerical health and safety standards.

Finally, the Administration's amendments would ensure that public vessels and Federal wastewater treatment works are treated in a manner comparable to non-Federal entities.

To the extent that the Judgment Fund is not available to pay fines and penalties under this Act, they will be paid by agencies from funds which must be appropriated specifically for this purpose. Under the caps established by the Budget Enforcement Act, funds appropriated to pay fines will necessarily reduce funds available for other purposes. Thus, it is likely that the imposition of fines will reduce funds available for cleanup activity.

Scoring for the Purposes of Pay-As-You-Go and Discretionary Caps

To the extent that S. 596 would increase direct spending it is subject to the pay-as-you-go requirement of the Omnibus Budget Reconciliation Act (OBRA) of 1990. No offsets to the direct spending increases are provided in the bill. A budget point of order would lie in both the House and Senate against this bill because, in the Administration's view, its costs have not been offset. The effects of enactment of this legislation would be included in the look back pay-as-you-go sequester report at the end of the Congressional session.

S. 596 will increase costs in two ways — payments from appropriated funds and payments from the Judgment Fund. S. 596 has a pay-as-you-go impact to the extent that the Judgment Fund is used to make payments under this Act.

If sovereign immunity is waived under RCRA without addressing the lack of current capacity to treat mixed waste, fines and penalties of up to $25,000 per day per violation could be imposed against Federal agencies. The fines would be imposed for storing radioactive mixed waste out of compliance with RCRA's prohibition on storage of restricted waste. Although it is impossible to predict with precision, the potential total Federal exposure for fines and penalties related to this situation could range up to about $5 billion per year.

At this time, it is difficult to predict what proportion of fines and penalties under S. 596 would be paid from the Judgment Fund. The. high-range estimate noted below assumes that fines and penalties are sought for 10 percent of the violations for mixed waste at Department of Energy facilities.

Mixed waste is also produced in conjunction with most biomedical research. The National Institutes of Health and other Federal facilities engaged in biomedical research face similar mixed waste disposal problems and would be subject to fines and penalties. To the extent that fines and penalties were imposed, the funds available to support biomedical research may be reduced.

OMB's preliminary pay-as-you-go scoring estimates of this bill are presented in the table below. Final scoring of this legislation may deviate from these estimates. If S. 596 were enacted, final OMB scoring estimates would be published within five days of enactment, as required by OBRA. The cumulative effects of all enacted legislation on direct spending will be issued in monthly reports transmitted to the Congress.

ESTIMATES FOR PAY-AS-YOU-GO
(millions of dollars)