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Joint Explanatory Statement of the Committee of Conference - Application of Certain Provisions to Federal Facilities


JOINT EXPLANATORY STATEMENT
OF THE COMMITTEE OF CONFERENCE

Application of Certain Provisions to Federal Facilities

Senate Amendment

Section 103 of the Senate bill amends section 6001 of the Solid Waste Disposal Act to add the word "management and to provide that the federal, state, interstate, and local substantive and procedural requirements referred to therein include, but are not limited to, all administrative orders and all civil and administrative penalties and fines. The bill also provides that for the purposes of enforcing any such substantive or procedural requirements, including, but not limited, to any injunctive relief, administrative order, or civil or administrative penalty or fine, against a federal agency, the United States expressly waives any immunity otherwise applicable to the United States. The bill further provides that no agent, employee or officer of the United States shall be personally liable for any civil penalty under any federal or state solid or hazardous waste law with respect to any act or omission within the scope of his official duties. An agent, employee, or officer of the United States shall be subject to criminal sanctions (including any fine or imprisonment) under any federal at state solid or hazardous waste law, but no agency of or instrumentality of the executive, legislative, or judicial branch of the federal government is subject to any such sanction.

House Amendment

The House bill contains a similar provision (Section 2) but further defines the term reasonable service charges" to include fees or charges assessed in connection with the processing and issuance of permits, amendments to permits, review of plans, studies, and other documents, and inspection and monitoring of facilities, as well as any other nondiscriminatory charges that are assessed-in connection with a federal, state, interstate, or local solid waste or hazardous waste regulatory program.

Conference Substitute

The conference substitute (section l02(a)) adopts the House provision with modifications to clarify that all civil and administrative penalties and fines includes penalties or fines that are punitive or coercive in nature or are imposed for isolated, intermittent or continuing violations. Tho conference substitute also makes clear that sovereign immunity is expressly waived with respect to any substantive or procedural provision of law.

Congress that each department, agency, instrumentality, agent, In doing so the conferees reaffirm the original intent of employee and officer of the United States be subject to all of the provisions of federal, state, interstate, and local solid waste and hazardous waste laws and regulations. By adding the word "management" to the first sentence of the waiver, we confirm the federal government's obligation to comply with all solid and hazardous waste provisions at all sites, without exceptions. This waiver subjects the federal government to the full range of available enforcement tools, including but not limited to the mechanisms specifically listed in the language of the amendment, to penalize isolated, intermittent or continuing violations as well as to coerce future compliance. Thus, while this amendment overrules the Supreme Court holding in U.S. DoD Department of Energy v. Ohio, 503 U.S., 118 L.Ed.2d 255 (1992), the scope of the waiver is not limited to either the civil penalties described in that decision or the enforcement tools specifically listed in section 6001. By subjecting the federal government to penalties and fines for isolated, intermittent, and continuing violations, the waiver also makes it clear that the federal government may be penalized for any violation of federal, state, interstate, or local law whether a single or repeated occurrence, notwithstanding the holding of the Supreme Court in Gwaltney of Smithfield, Ltd. Chesapeake Bay Foundation. Inc., 484 U.S. 49 (1987).

The waiver for civil fines and penalties as added by tho Federal Facility Compliance Act of 1992 takes effect on the date of enactment and is not intended to have retroactive effect.

Criminal sanctions under any solid or hazardous waste law are specifically precluded by this section against any branch of the federal government; however, agents, employees or officers of the United States are subject to criminal sanctions. However, no agent, employee, or officer of the United States shall be personally liable for any civil penalty with respect to any act of omission within the scope of his or her official duties.

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Administrative Enforcement Actions

Senate Amendment

The Senate bill (section 103(c)) provides that the Administrator of the Environmental Protection Agency (EPA) may commence an administrative enforcement action against federal agencies and requires that any such action be initiated in the same manner and under the same circumstances as it would be initiated against other persons. The section also requires that any voluntary resolution or settlement of an enforcement activities be embodied in a consent order. The provision further provides that no administrative order issued to a federal agency shall become final until the federal agency has had the opportunity to confer with the Environmental Protection Agency.

House Amendment

The House bill contains the identical provisions.

Conference Substitute

In adopting the provision (section 102(b)), the conferees intend to reaffirm the original intent of the Solid Waste Disposal Act authorizing administrative enforcement actions against federal facilities. The conferees also intend that where EPA uses an administrative complaint pursuant to section 3008(a) to address particular types of violations detected at a private company or municipality the Administrator must use an administrative complaint to address the same types of violations at a federal facility.

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Limitation on State Use of Funds

Senate Amendment

The Senate bill contains no comparable provision.

House Amendment

Section 2(c) of the House bill provides that funds collected by a state from the federal government from fines and penalties imposed for violation of any requirement referred to in subsection (a), may only be used for projects designed to improve or protect the environment or to defray the costs of environmental protection or enforcement, unless the state's constitution requires that these funds be used in a different manner.

Conference Substitute

The conference substitute (section 102(b)) provides that funds collected by a state from the federal government from fines and penalties imposed for violation of any requirement referred to in subsection (a) may only be used for environmental projects designed to improve or protect the environment or to defray the costs of environmental protection or enforcement, unless tho state's constitution requires that these funds be used in a different manner, or the state has a statute in effect on tho date of enactment of the Federal Facility Compliance Act requiring that the funds be used in a different manner. requirement of a state constitution or a state law that the fund. be used in a different manner includes a prohibition on earmarking of funds.

The conferees intend that when states impose fines or penalties on the federal government, those monies should be used for projects designed to improve or protect the environment, or to defray the costs of environmental protection or enforcement. However, the conferees are aware that this limitation would be in direct conflict with certain state statutes and constitutional provisions. Therefore, the conferees determined that when a state statute in effect on the date of enactment of the Federal Facility Compliance Act, or a state constitution, requires that funds collected from fines and penalties be used in a different manner, including a prohibition on earmarking of such funds, the limitation contained in this section shall not apply.

Senate Amendment

The Senate bill (section 103), applies the amended waiver of sovereign immunity immediately. However, section 105 of the Senate bill modifies the requirements of section 3004(j) of the Solid Waste Disposal Act as they apply to those mixed waste streams at federal facilities for which technologies do not exist or sufficient treatment capacity is not yet available, so as to not require compliance with the storage requirements of section 3004(j) until December 31, 1993. The Administrator is authorized to grant case-by-case extensions, but no such extension could be granted beyond July 1, 1997.

House Amendment

The House bill (section 2) makes the amended waiver of sovereign immunity applicable upon the date of enactment.

Conference Substitute

The conference substitute (section 102 (c)) specifies the effective dates for the amendments to section 6001 of the Solid Waste Disposal Act made by subsection 102(a) of the Federal Facility Compliance Act as follows:

Paragraph 102(c)(1) of the conference substitute provides that, except as provided in paragraphs (2) and (3) , the amendments made by subsection 102(a) shall take effect on tho date of enactment of the Federal Facility Compliance Act. Thus, for all violations other than the violations of section 3004(j) of the, Solid Waste Disposal Act involving storage of mixed waste as specified in paragraphs (2) and (3), the waiver of sovereign immunity contained in subsection (a) (that is in addition to tho existing waiver of sovereign immunity in section 6001 of tho Solid Waste Disposal Act which was in effect prior to the date of enactment of the Federal Facility Compliance Act) shall take effect on the date of enactment of the Federal Facility Compliance Act.

With respect to violations of the requirements of section 3004(j) of the Solid Waste-Disposal Act involving the storage of mixed waste, the conference substitute delays for three years the effective date of the waiver of sovereign immunity added by the Federal Facility Compliance Act for fines and penalties, in order to provide the Department of Energy (DOE) with sufficient time to submit and obtain approval for plans for the development of treatment capacity and technologies for its facilities that generate and store mixed waste.

The Department of Energy has stated that three years is both necessary and adequate to develop these plans. After the three-year period, for plans that have been approved and where a compliance order has been issued and is in effect, the DOE would be subject to fines and penalties for violations of such plans, but not for violations of section 3004(j) involving the storage of mixed waste.

Paragraph (c)(2) provides that, for three years after the date of enactment of the Federal Facility Compliance Act, the waiver of sovereign immunity in subsection (a) (that is in addition to the existing waiver of sovereign immunity in section 6001 which was in effect prior to the date of enactment of the Federal Facility Compliance Act) shall not apply to the federal government for violations of section 3004(j) of the Solid Waste Disposal Act involving storage of mixed waste that is not subject to an existing agreement, permit, or administrative or judicial order, so long as such waste is managed in compliance with all other applicable requirements. However, such waiver of sovereign immunity shall apply to violations of section 3004(j) at any time prior to the date three years after the date of enactment of the Federal Facility Compliance Act if such waste is not managed in compliance with all applicable requirements other than section 3004(j).

The phrase "(as added by the amendments made by subsection (a))" in this paragraph makes it clear that the specified delay in the effective date of the waiver of sovereign immunity in section 6001(a) of the Solid Waste Disposal Act for violations of section 3004(j) involving mixed waste applies only to that portion of the waiver in the Solid Waste Disposal Act that is substantively added by the Federal Facility Compliance Act. Tho waiver of sovereign immunity that was in effect prior to the date of enactment of the Federal Facility Compliance Act will continue to be effective, in full, after the date of enactment, and its applicability is not affected by this Act. Thus, for example, and not by limitation, injunctive relief, which has been available for violations of the requirements of the Solid Waste Disposal Act under section 6001 as it existed prior to the enactment of this Act, continues to be available for violations of the Solid Waste Disposal Act, including violations of section 3004(j) involving mixed waste, after the date of enactment of this Act, within or beyond the three year period following the date of enactment.

Subparagraph 102(c)(3)(A) provides that, except as provided in subparagraph (B), after three years after the date of enactment of the Federal Facility Compliance Act, the waiver of sovereign immunity in subsection (a) (that is in addition to the existing waiver of sovereign immunity in section 6001 which was in effect prior to the date of enactment of the Federal Facility Compliance Act) shall apply to the federal government for violations of section 3004(j) involving storage of mixed waste.

Subparagraph (B) provides that the waiver referred to in subparagraph (A) shall not apply for violations by the Department of Energy of section 3004(j) of the Solid Waste Disposal Act involving the storage of mixed waste, provided that the DOE is in compliance with an approved plan for the development of treatment capacities and technologies under section 3021(b) and is in compliance with an order requiring compliance with such plan.

Paragraph 102(c)(4) provides that the existing waiver of sovereign immunity in subsection (a) (that is in addition to the waiver of sovereign immunity in section 6001 which was in effect prior to the date of enactment of the Federal Facility Compliance Act) shall take effect on the date of enactment of this Act with respect to any agreement, permit, or administrative or judicial order existing on such date of enactment. This paragraph does not affect the applicability of the existing waiver of sovereign immunity in the Solid Waste Disposal Act that was in effect prior to the date of enactment of this Act. This paragraph ensures that the existing waiver contained in section 6001 of the Solid Waste Disposal Act as well as the additional waiver for all administrative orders and all administrative penalties and fines is fully applicable to Department of Energy agreements or orders at the Hanford, Washington; Rocky Flats, Colorado; and Savannah River, South Carolina facilities of the Department of Energy.

The Administrator of the Environmental Protection Agency is currently reviewing a Department of Energy petition for a one-year, case-by-case variance under section 3004(h) for mixed waste. In delaying the effective date for fines and penalties for violations of section 3004(j) involving storage of mixed waste, and in adopting the inventory reports and plan provisions of section 105, the conferees have obviated the need for EPA to pursue the case-by-case petition. Further, the conferees do not agree that a "binding contractual commitment the term is used in section 3004(h) of the Solid Waste Disposal Act includes an agreement between two or more federal departments, agencies, or instrumentalities.

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Definition of Person

Senate Amendment

Section 104 of the Senate bill amends the existing definition of, "person" contained in section 1004(15) of the Solid Waste Disposal Act to include each department, agency, and instrumentality of the United States.

House Amendment

The House bill (section 3) provides that for the purposes of the Solid Waste Disposal Act the term "person be treated as including each department, agency, and instrumentality of the United States.

Conference Substitute

The conference substitute (section 103) adopts the Senate provision.

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Facility Environmental Assessments

Senate Amendment

Section 102 of the Senate bill requires the Administrator of EPA to undertake an annual inspection of each facility owned or operated by the United States that is subject to the Solid Waste Disposal Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Toxic Substances Control Act, to enforce compliance with these acts. Each annual inspection is to include an analysis of comprehensive groundwater monitoring. The records of such inspections are to b. available to the public. The department, agency, or instrumentality owning or operating each such facility shall reimburse the EPA for the costs of the inspection.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (section 104) modifies the Senate provision and amends existing section 3007(c) of the Solid Waste Disposal Act, which requires annual inspections of federal facilities by the Administrator of EPA. The conference agreement provides that states with an authorized hazardous waste program under section 3006 may also conduct inspections for the purpose of enforcing the facilities' compliance with the state hazardous waste program. The EPA is to be reimbursed by the department, agency, or instrumentality owning or operating the facility for the costs of the inspection. With respect to the first inspection occurring after the date of enactment of the Federal Facility Compliance Act of 1992, EPA is to conduct a comprehensive groundwater monitoring evaluation at the facility, unless such an evaluation was conducted during the 12-month period preceding the date of enactment.

Nothing in section 104 requires the comprehensive groundwater evaluation to address compliance with the Clean Water Act, the Oil Pollution Act or the Comprehensive Environmental Response, Compensation, and Liability Act.

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Mixed Waste Storage and Treatment

Senate Amendment

The Senate bill (section 105) amends section 3004(j) of the Solid Waste Disposal Act to provide relief to federal entities for mixed waste storage violations under existing section 3004(j). The Solid Waste Disposal Act requires that wastes subject to the ban on land disposal, such as mixed waste, be stored only in anticipation of treatment. EPA regulations limit the time of such storage to one year.

Under the Senate bill, until December 31, 1993, where technologies do not exist or sufficient treatment capacity is not yet available for treatment of mixed waste generated at federal facilities, mixed waste is required to be stored in compliance with all applicable requirements except existing section 3004(j). The Senate bill further provides that EPA may grant a one-year renewable variance from existing section 3004(j) requirements to any federal entity in cases where there is inadequate treatment capacity available or technologies do not exist.

Such a variant may be granted after notice and comment and after consultation with appropriate state agencies in all affected states. EPA i 8 prohibited from granting such extensions beyond July 1, 1997.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

Inventories

The conference substitute requires the Secretary of Energy to submit to the Administrator and the governor of each stat. in which the Department of Energy (DOE) stores or generates mixed wastes a national inventory, on a state-by-state basis, of mixed waste. 180 days after enactment of the Federal Facility Compliance Act The inventory is required to be submitted not later than of 1992.

The inventory is to include, among other items: a description of each type of mixed waste at each Department of Energy facility in each state (including the name of the waste stream); the amount of each type of mixed waste that is stored at each DOE facility; an estimate of the amount of each type of mixed waste DOE expects to generate in the next five years; an inventory of waste that has not been characterized by sampling and analysis; technologies specified for the treatment of the hazardous waste component of the mixed waste, and a statement of whether and how the radionuclide content. of the waste alters or affects the use of treatment technologies.

In addition, the inventory prepared by DOE is to include an estimate of the available treatment capacity for each identified mixed waste, a description of the treatment facilities (including those not considered in calculating treatment capacity and proposed treatment facilities), and information to support DOE's determination that no treatment technology exists for a particular waste stream.

Not later than ninety days after DOE has submitted the inventories, the Administrator and each state which receives the report shall submit any comments they may have to DOE. Nothing limits or restricts the authority of the states or the Administrator to request additional information from the Secretary of Energy.

Facility - Specific Plan for Development of Treatment Capacities and Technologies

For each DOE facility at which mixed waste is stored or generated, DOE is required to develop a plan, under a new section 3021(b) of the Solid Waste Disposal Act, for developing treatment capacity and technologies for such mixed waste regardless of when it was generated. No plan is required for any facility subject to any permit establishing a schedule for treatment of mixed wastes, or to any existing agreement or administrative or judicial order governing the treatment of such wastes, to which the state is a party.

The plan covering mixed waste for which treatment technologies exist is to contain a schedule for submitting permit applications, entering into contracts, initiating construction, conducting systems testing, commencing operations, and processing backlogged and currently generated mixed wastes. For mixed wastes for which no treatment technologies exist, each plan submitted by DOE is to provide a schedule for: (1) identifying and developing such technologies, (2) identifying the funding requirements for the identification and development of such technologies, (3) submitting treatability study exemptions, and (4) submitting research and development permit applications.

For all cases where DOE proposes radionuclide separation of mixed waste, or materials derived from mixed wastes, DOE is to provide an estimate of the volume of waste generated by each case of radionuclide separation, the volume of waste that would exist or be generated without radionuclide separation, the estimated costs of waste treatment and disposal if radionuclide separation is used compared to the estimated costs if it is not used, and the assumptions underlying such waste volume and cost estimates.

Each plan may provide for centralized, regional, or on-site treatment of mixed wastes, or any combination thereof.

Review, Approval, Revisions and Waiver of Plan

DOE is required to submit each plan to the state in which a DOE facility that generates or stores mixed waste is located if such state has (1) authority under state law to prohibit land disposal of mixed waste until the waste has been treated and (2) authority under state law to regulate the hazardous components of mixed waste and authorization from the Environmental Protection Agency under section 3006 of the Solid Waste Disposal Act to regulate the hazardous components of mixed waste. EPA has authorized 32 states to regulate the hazardous components of mixed waste, starting with Colorado in 1986, and most recently adding California in 1992.

DOE has provided information to the conferees indicating that the department has approximately 33 facilities in 15 states not including the Hanford, Rocky Flats, and Savannah River facilities, that have mixed waste subject to the section 3004 (j) storage prohibition. The conferees are aware that the vast majority of states in which these facilities are located currently meet both criteria set forth in section 3021(b) for becoming the approving authority for the plans required by that section. These include but are not limited to the following states: California, Colorado, Idaho, Illinois, Indiana, Kentucky, Novada, New Mexico, New York, Ohio, Tennessee, and Texas.

Each state with current authority that meets the above requirements as well each state that obtains such authority in the future is qualified to approve DOE plans for DOE facilities that generate or store mixed waste in such state.

In reviewing each plan submitted to the state by DOE, each state shall consider the need for regional treatment facilities. In addition, the state shall consult with the Administrator and any other state in which a facility affected by a plan is located and consider public comments in making its determination on each plan. The state shall approve, approve with modifications, or disapprove each plan within 6 months after receipt of such plan.

Where a state in which a DOE facility that generates or stores mixed waste does not have the authority described in new section 3021(b)(2)(A) of the Solid Waste Disposal Act, DOE is to submit each plan to the Administrator of EPA and the state in which the facility is located. In reviewing the plan, the Administrator shall consider the need for regional treatment facilities. In addition, the Administrator shall consult with the state or states in which any facility affected by a plan is located and consider public comments in making a determination on a plan. The Administrator shall approve, approve with modifications, or disapprove the plan within 6 months after receipt of each plan.

Upon approval of each plan by the Administrator or the state, the Administrator shall issue an order under section 3008(a) of the Solid Waste Disposal Act, or the state shall issue an order under appropriate state authority, requiring compliance with each plan.

Once DOE has submitted a plan to the state or EPA, and before approval by the state or EPA, the state or EPA shall publish a notice of the availability of each submitted plan and make each plan available to the public upon request. Revisions to any plan are subject to the same process and requirements as each original plan. A state may waive the requirement for DOE to submit a plan for a facility located in such state if the state (1) enters into an agreement with DOE that addresses compliance at that facility with section 3004(j) of the Solid Waste Disposal Act with respect to mixed waste and (2) issues an order which requires compliance with such agreement and which is in effect. Any violation of such agreement or order is subject to the waiver of sovereign immunity contained in section 6001(a).

Schedule and Progress Reports

The requirement for DOE to publish a schedule and submit three annual progress reports will allow Congress to follow the Department's progress in developing the plans and entering into the orders necessary to bring it into compliance with section 3004(j).

The schedule and progress reports consist of information that DOE would be expected to develop independently for its own use in order to effectively and responsibly manage its activities to achieve compliance with section 3004(j). Not later than 18 months after the date of enactment of the Federal Facility Compliance Act the GAO is required to submit to the Congress a report on DOE'S progress in complying with section 302l(b) of theSolid Waste Disposal Act.

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Definition of Mixed Waste

Senate Amendment

Section 108 of the Senate bill defines the term "mixed waste" as waste that contains both hazardous waste and source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (section 105(b)) adopts the Senate provision. This definition reflects the meaning of the term as used in current Nuclear Regulatory Commission and Environmental Protection Agency guidance, practice, and policy.

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Mixed Waste Treatment Regulations

Senate Amendment

Section 105(b) of the Senate bill provides that, not later than December 31, 1992, the Administrator of the Environmental Protection Agency is to promulgate regulations for mixed waste specifying those levels or methods of treatment which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized and exposure to radioactivity during treatment is minimized.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute deletes the Senate amendment.

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Public Vessels

Senate Amendment

Section 111 of the Senate bill provides that any solid or hazardous waste generated on a public vessel shall not be subject to storage, manifest, inspection, or record keeping requirements.

under the Solid Waste Disposal Act, until such waste is removed from the public vessel on which it was generated.

The section provides that waste transferred directly from one public vessel to another shall not be considered to have been "removed from the public vessel on which it was generated" so long as it remains on a public vessel.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (section 106) provides that any hazardous waste generated on a public vessel shall not be subject to the storage, manifest, inspection, or record keeping requirements of the Solid Waste Disposal Act, until such waste is transferred to a share facility, unless: 1) the waste is stored on the public vessel for more than 90 days after the public vessel is placed in reserve or is otherwise no longer in service; or 2) the waste is transferred to another public vessel within the territorial waters of the United States and is stored on such vessel or another public vessel for more than 90 days after the date of transfer.

This section of the conference report is intended to address the concern of the Department of Defense that military vessels that generate and store hazardous wastes during the performance Of their duties not be considered Solid Waste Disposal Act regulated entities until the hazardous waste is be off-loaded at a port. It is not the intent of the conferees, however, that public vessels become floating, unregulated hazardous waste storage facilities; hazardous waste that is generated on any public vessel should be removed to a permitted treatment, storage, or disposal facility on shore as soon as that removal may be safely and feasibly accomplished.

The use of the terms "in reserve" and "otherwise no longer in service" thus is not intended to require that a vessel be formally decommissioned, or that some official act need take place to formally remove a vessel from service before the allowable 90-day storage period begins to run. Rather, the conferees intend that these terms apply to a vessel that becomes inactive for what is to be any significant period of time, and that the allowable 90-day storage period begins to run as soon as the vessel becomes inactive.

In addition, the section provides that the allowable 90- This provision is designed to prevent the avoidance of storage period begins to run as soon as the hazardous waste is transferred from the vessel on which it wad generated to another public vessel, within the territorial waters of the United States.

Solid Waste Disposal Act regulation through "continual transfer" or perpetual storage, by off-loading waste from the vessel of generation to, for example, another vessel anchored at harbor, rather than to a shore facility.

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Munitions

Senate Amendment

Section 113 of the Senate bill adds a new subsection (d) to section 1006 of the Solid Waste Disposal Act, which requires that the Secretary of Defense have responsibility for carrying out any requirement of Subtitle C of such Act related to the safe development, handling, use, transportation, and disposal of military munitions. Section 113 requires that the Secretary, with the concurrence of the Administrator of the Environmental Protection Agency, promulgate such regulations as may be necessary to carry out the purposes of new subsection (d).

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (section 107) provides that, not later than six months after the date of enactment of the Federal Facility Compliance Act, the Administrator, after consulting with the Secretary of Defense and appropriate state officials, shall propose regulations to: 1) identify when military munitions become hazardous wastes for the purposes of Subtitle C, and 2) provide for the safe transportation and storage of such waste. The section further provides that the Administrator shall promulgate such regulations, after public notice and comment, not later than 24 months after the date of enactment of tho Federal Facility Compliance act. Such regulations shall assure protection of human health and the environment. The term "military munitions is defined to include, for purposes of this subsection (how section 3004(y) of the Solid Waste Disposal Act, added by the conference substitute), chemical and conventional munitions.

The Department of Defense has indicated that having a regulatory determination identifying when military munition. become a hazardous waste for the purpose of regulation under Subtitle C would eliminate potential confusion in this area. amendment adopted requires EPA to propose and issue regulations for all military munitions including those of the Department of Army. The conferees intend that EPA consult with tho Department of Defense and appropriate state regulatory agencies in proposing the regulations and that all interested parties participate during the notice and comment period prior to promulgations of the final regulations. The conferees intend that all parties work within the regulatory process.

Without this regulation, the issue of when the Solid Wast Disposal Act jurisdiction attaches to military munitions will likely be left to the courts. The conferees intend that this potential litigation be avoided, and that all the interested parties use the regulatory process to develop a fair and coherent approach to identifying when military munitions become a hazardous waste under the Solid Waste Disposal Act.

The conferees intend for EPA to also review possible conflicts in applicable treatment and disposal regulations between DoD and EPA. In doing so, EPA should examine DoD safety requirements and take them into account in promulgating any regulation necessary to protect human health and the environment.

The conferees also intend that the Administrator should make this determination for both conventional and chemical munitions. As passed by the Senate, the military munitions provision covered only the safe handling and disposal of conventional munitions, because a regulatory regime for the ultimate destruction of chemical munitions already exists. Since the focus of the military munitions provision has shifted from a requirement for new regulations for the disposal of munitions to a determination of when munitions become waste, and their safe transportation and storage, the conferees believe it is necessary to include chemical weapons within the scope of the provision. The expansion of the definition of military munitions to include chemical munitions does not affect any existing requirements for the destruction and disposal of chemical munitions imposed on the Department of Defense by either EPA or any state governmental agency.

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Federally Owned Treatment Works

Senate Amendment

Section 112 of the Senate bill provides generally that any wastewater treatment works owned by a department, agency, or instrumentality of the federal government shall be considered to be managing a solid waste, but not a hazardous waste, if: 1) such wastewater treatment works receives and treats wastewater, the majority of which is domestic sewage; 2) no solid waste in any unit that is part of the wastewater treatment works exhibits any hazardous waste characteristic as determined pursuant to the test methods and criteria established by the Administrator of EPA under Subtitle C of the Solid Waste Disposal Act unless such waste is removed from the treatment works and is managed as a hazardous waste; 3) the wastewater treatment works has a permit issued pursuant to section 402 of the Federal Water Pollution Control Act (FWPCA) and such permit includes conditions requiring that any industrial Wastewater received by the treatment works is pretreated in accordance with national pretreatment standards established by the Administrator under section 307 of the FWPCA or, in the absence of an applicable pretreatment standard, in accordance with limits established under section 402(b)(8) of the FWPCA, and any solid waste rendered hazardous by any pretreated or non-compliant wastewater is removed to the extent practicable; and 4) the treatment works complies with any other permit conditions the Administrator or an authorized state may establish under section 402 of the FWPCA. The section also provides that, notwithstanding the above, the owner of a wastewater treatment works is required to: remove and manage as a hazardous waste solid waste present in any unit of the treatment works that exhibits a hazardous characteristic; and 2) take corrective action with respect to any release or threatened release of a hazardous waste or hazardous constituent from the treatment works. Finally, the section clarifies that its provisions do not constitute a waiver of any requirement under Subtitle C of the Solid Waste Disposal Act with respect to any unit that is part of a wastewater treatment works that pretreats industrial waste prior to discharge to a treatment works.

House Amendment

The House bill contains no comparable provision

Conference Substitute

The conference substitute (section 108) provides that, for purposes of section 1004(27) of the Solid Waste Disposal Act, the phrase "but does not include solid or dissolved material in domestic sewage" shall apply to any solid or dissolved material introduced by a source into a federally owned treatment works if: 1) such solid dissolved material is subject to a pretreatment standard under section 307 of the Federal Water Pollution Control Act (FWPCA) and the source is in compliance with such standard; 2) for solid or dissolved material for which pretreatment standards have not been promulgated pursuant to section 307 of the FWPCA, Administrator has promulgated a schedule for establishing a pretreatment standard pursuant to section 307 which would be applicable such solid or dissolved material not later than seven years after enactment of this section, such standard is promulgated on or before the date established in the schedule, and after the effective date of such standard the source is in compliance with the standard; 3) for solid or dissolved materials not covered by (1) or (2), such solid or dissolved material is not prohibited from land disposal under subsections (d), (e), (f) or (9) of section 3004 of the Solid Waste Disposal Act because such material has been treated in accordance with section 3004(m); or (4) notwithstanding paragraphs (l), (2) or (3) , such solid or dissolved material is generated by a household or person which generates less than 100 kilograms of hazardous waste per month unless such solid or dissolved material would otherwise be an acutely hazardous waste and subject to standards, regulations, or other requirements of the Solid Waste Disposal Act notwithstanding the quantity generated.

The conference substitute provides that it is unlawful to introduce into a federally owned treatment works any pollutant that is a hazardous waste.

The conference substitute provides that actions taken to enforce this section shall not require closure of a treatment works if the hazardous waste is removed or decontaminated and such removal or decontamination is adequate, in the discretion of the Administrator or an authorized state, to protect human health and the environment. However, the conference substitute also provides that nothing in this subsection shall be construed to prevent the Administrator or an authorized state from ordering the closure of a treatment works if the Administrator or state determines that such closure is necessary for the protection of human health and the environment, and that nothing in this subsection shall be construed to affect any other enforcement authorities available to the Administrator or a state under Subtitle C.

The conference substitute defines the term "federally owned treatment works" as a facility that is owned and operated by department, agency or instrumentality of the federal government and that treats wastewater, a majority of which is domestic sewage, prior to discharge in accordance with a permit issued under section 402 of the Federal Water Pollution Control Act.

Finally, the conference substitute provides that nothing in this section shall be construed as affecting any agreement, permit, or administrative or judicial order, or any condition or requirement contained in such an agreement, permit, or order, that is in existence on the date of the enactment of this section and requires corrective action or closure at a federally owned treatment works or solid waste management unit or facility related to such a treatment works.

Municipally- or state-owned sewage treatment plants, as publicly owned treatment works, or "POTWS, operate under a policy called the "domestic sewage exclusion," which excludes domestic sewage from the definition of solid waste found in section 1004(27) of the Solid Waste Disposal Act. This policy excludes hazardous waste which may enter a POTW from coverage under the Solid Waste Disposal Act and prevents many POTWs from being treated hazardous waste facilities. The domestic sewage exclusion does not currently apply to federally-owned treatment works.

The conference substitute has the effect of expanding the domestic sewage exclusion to federally owned treatment works, under certain conditions, to address the concerns of the Department of Defense.

However, the domestic sewage exclusion itself is considered by some to be poor public policy, resulting in the transfer of large amounts of hazardous materials to municipal sewage systems which are not prepared to deal with it. Accordingly, the conferees do not intend that the conference substitute regarding federally owned treatment works be interpreted as an endorsement of the domestic sewage exclusion. It is expected that in the future the Congress will address the issue of the domestic sewage exclusion and its applicability to both FOTWs and POTWs, including equitable treatment under the law taking into account their individual circumstances.

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Small Town Environmental Planning

Senate Amendment

Section 108 of the Senate bill directs the EPA Administrator to establish a Small Town Environmental Planning Program to assist small towns with a population of less than 2,500 individuals with environmental regulation compliance. The program includes identification of environmental requirements applicable to small towns, a Small Town Ombudsman, and a study of the feasibility of multi-media permitting for small towns.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (Section 109) adopts the Senate provision with the additions of an authorization limit of $500,000 for the appropriation of the Small Town Environmental Planning Program and a requirement that the Administrator terminate the Task Force not later than 2 years after its establishment.

The conference substitute requires the Administrator, under subsection (a), to establish a Small Town Environmental Planning (STEP) Program. Subsection (b) directs the Administrator to establish the STEP Task Force. At the Administrator's discretion, the Task Force is to be composed of representatives of small towns, state agencies, public interest groups and small town residents. Task force is to identify means to improve the working relationship between the EPA and small towns, identify the environmental regulations which pose significant compliance difficulties for small towns, review proposed regulations, and submit comments to improve the ability of small towns to comply with such proposed regulations. The Task Force is to identify means to regionalize environmental treatment systems and infrastructures between small towns to improve economic conditions, and provide any other assistance to the Administrator that the Administrator deems appropriate.

Subsection (c) requires the Administrator to identify and annually publish a compilation of regulations applicable to small towns and to develop effective means to timely notify small towns of proposed regulations.

Subsection (d) directs the Administrator to establish and staff an office of the Small Town Ombudsman as an advocate for small towns, and each Regional Office of EPA shall identify a small town contact within that office, to provide assistance to small towns to facilitate the goals of the STEP Program.

Subsection (e) directs the Administrator to conduct a study, and report to Congress within 3 years after enactment of the Federal Facility Compliance Act, of the feasibility of a multi-media permitting program for small towns as a vehicle to balance full environmental regulatory compliance with the small town's available resources. This study is to consider a compliance schedule as a part of a permit, if a small town cannot fully comply with the law.

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Chief Financial Officer Report

Senate Amendment

Section 110 of the Senate bill requires the Chief Financial Officers of the affected agencies to submit an annual report to Congress: (1) detailing the estimated time and cost required for the development of adequate storage, treatment and disposal capacity for mixed wastes subject to the Solid Waste Disposal Act, (2) including a detailed description of any compliance activities expected to be accomplished during the reporting period, and 3) providing an accounting of any fines and penalties collected pursuant to the Solid Waste Disposal Act.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute (section 110) modifies the Senate provision to require the Chief Financial Officers of the affected agencies to submit to Congress an annual report containing a description of the compliance activities undertaken by the agency for each mixed waste stream, and an accounting of any fines and penalties imposed on the agency for violations involving mixed waste.

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Metropolitan Washington Waste Management Study Act

Senate Amendment

Section 304 of the Senate bill prohibits expansion of the Lorton landfill ("Lorton"), located on federally-owned land in Fairfax County, Virginia, unless (1) an environmental impact statement (EIS) has been completed and approved by the EPA Administrator, and (2) the costs of conducting the EIS shall be paid from a fund established by the jurisdictions using Lorton. Notwithstanding the prohibition on expansion, Lorton may be expanded through construction of the planned ash monofill.

Unless an EIS is completed, the section provides that, after December 31, 1995, Lorton and any expansions thereof may only be used for the disposal of incinerator ash. the shutdown of the incinerator unless the EIS is completed as provided in the section.

House Amendment

The House bill contains no comparable provision

Conference Substitute

The conference substitute (sections 201 through 204) prohibits expansion of Lorton unless (1) an environmental impact statement has been completed and approved by the EPA Administrator, and (2) the costs of conducting the EIS are paid from a fund established by the jurisdictions using Lorton. Notwithstanding the prohibition on expansion, Lorton may be expanded through construction of the planned ash monofill. The ash monofill may be used only for the disposal of incinerator ash, except that such monofill maybe used for the disposal of waste for a maximum of 30 days if any of the jurisdictions using Lorton experience an emergency shutdown of (1) a resource recovery facility, or (2) a resource recovery facility and an incinerator.

After December 31, 1995, Lorton shall be available only for the disposal of incinerator ash, unless the EIS is completed as provided in the section.

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Representation and Reimbursement of Federal Employees in Criminal Proceedings

Senate Amendment

Section 103(b) of the Senate bill authorizes the head of a federal department, agency, or instrumentality to provide legal representation for an employee in state criminal proceedings, provided that the actions for which the representation is requested reasonably appear to have been performed within the scope of the employee's employment, and providing representation would otherwise be in the interest of the United States.

Section 103(b) also authorizes the head of a federal department, agency, or instrumentality to reimburse an employee for reasonable defense costs in federal criminal proceedings, provided such employee is not indicted, for actions performed within the scope of his or her employment.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute deletes the Senate provision.

It is the intent of the conferees that any federal employee who is sued, subpoenaed or charged in his or her individual capacity in a state criminal proceeding be entitled to the same protection that they now receive under the guidelines of the United States Department of Justice at 28 C.F.R. 50.15 (1990). Under those guidelines, the Department of Justice is authorized to provide representation for an employee in any state criminal proceeding, provided that the actions for which the representation is requested reasonably appear to have been performed within the scope of the employee's employment and that providing representation would otherwise be in the interest of the United States.

The Department of Justice guidelines do not currently address the question of whether the Federal government should exercise its authority to reimburse a federal employee, provided such employee is not indicted, for reasonable defense costs in a federal criminal proceeding. The conferees believe that such reimbursement would provide needed protection to employees who are now forced to utilize limited personal assets to defend against charges that are later found insufficient to support an indictment.

Therefore, the conferees strongly encourage the Department of Justice to use its existing authority to develop and issue guidelines providing for the reimbursement of a federal employee for reasonable defense costs in a federal criminal proceeding, in cases in which (1) such employee is not indicted, (2) the actions for which reasonable defense costs are incurred reasonably appear to have been performed within the scope of the employee's employment, and (3) providing reimbursement would otherwise be in the interest of the United States.

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Surety Bonds

Senate Amendment

With respect to federal facilities not included on the Superfund National Priorities List, section 109 of the Senate bill clarifies the liabilities and access to indemnification of sureties providing bonds for cleanup work. This provision is based on a comparable provision in section 119 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute deletes the Senate amendment

Senate Amendment

Section 114 of the Senate bill authorizes Administrator of the Environmental Protection Agency to utilize the mine waste treatment capabilities at the Department of Energy's Pittsburgh Energy Technology Center to help carry out the facility environmental assessments required by the Federal Facility Compliance Act.

House Amendment

The House bill contains no comparable provision

Conference Substitute

The conference substitute deletes the Senate provision.

Senate Amendment

Section 202 of the Senate requires the Administrator of the Environmental Protection Agency to establish a program requiring all federal agencies to separate materials from solid waste for recycling. The provision would allow each agency to use the proceeds from its recycling program for any authorized activities of that agency. Section 202 also requires the Administrator to submit an annual report to Congress concerning compliance by federal agencies with recycling guidelines issued under section 6907 of the Solid Waste Disposal Act.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute deletes the Senate provision.

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Energy Management

Senate Amendment

Section 401 of the Senate bill requires the Architect of the Capitol to undertake a program of analysis and retrofit of the Capitol buildings' lighting systems to replace incandescent lighting with efficient fluorescent lighting.

House Amendment

The House bill contains no comparable provision.

Conference Substitute

The conference substitute deletes the Senate provision.

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