Eviscerating the longstanding principle of CERCLA: Part 1

Well Google News piqued my interest again.

House Republicans Just Quietly Passed A Bill Gutting Hazardous Waste Legislation

HuffPost goes on to say:

The Bill, called the Reducing Excessive Deadline Obligations Act, amends both the Solid Waste Disposal Act and the Comprehensive Environmental Response, Compensation and Liability Act (which is commonly known as Superfund).

...and...:

The environmental group Earthjustice has said the bill would "gut" the Superfund program, 

HuffPost was nice enough to give a link to the Earthjustice letter opposing the Bill.  There I am told:

The three bills that comprise H.R. 2279 weaken the nation’s hazardous waste laws and place American communities at increased risk of toxic exposure and financial liability in the following ways. 

So I read their letter and I read the Bill and I am left with the question of how?  I don't know about y'all, but reading legalize stuff takes a bit of time to get into the ol' noggin.  Plus, I am not a lawyer, though I have stayed at a Holiday Inn (add drum kerplunk here).

I thought that it might be easier to see what changes were made and how those changes actually look.  So here goes a try at the "how."

Earthjustice claims that Tile One of this Bill will:

Eliminate the requirement for EPA to ensure in a timely fashion that its hazardous waste regulations are current, relevant and effective to protect human health and the environment. The bill removes a requirement for periodic review of regulations under RCRA, making the timing of review wholly discretionary. 

Here is the change [Words in red are new.  Words with a line through them were deleted]

Solid Waste Disposal Act 2002

2002(b) REVISION OF REGULATIONS.—Each regulation promulgated under this Act shall be reviewed and, where necessary, revised not less frequently than every three years. 

2002(b) REVIEW OF REGULATIONS.—The Administrator shall review, and revise, as the Administrator determines appropriate, regulations promulgated under this Act.

Basically each regulation under the SWDA will only need to be reviewed and revised when deemed appropriate.  The part dealing with hazardous waste, RCRA, has been on the books since 1980.  This would mean that it has been" reviewed and, where necessary, revised" at least 10 times.  Most of the rule changes we have seen have been to reduce the regulatory burden by removing regulations that no longer serve a purpose.

Earthjustice claims that Tile One of this Bill will:

Eviscerate the longstanding principle of the Superfund law that polluters must pay for cleanup of hazardous waste releases by allowing insufficient existing requirements to block Superfund obligations, thereby leaving communities unprotected and taxpayers at risk of funding expensive cleanups.

CERCLA

108 (b)(1) Beginning not earlier than five years after the date of enactment of this Act, the President shall, promulgate requirements (for facilities in addition to those under subtitle C of the Solid Waste Disposal Act and other Federal law) that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. Not later than three years after the date of enactment of the Act, the President shall, as appropriate, identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register. Priority in the development of such requirements shall be accorded to those classes of facilities, owners, and operators which the President determines present the highest level of risk of injury.

Not sure how that equates to "evisceration" but to each their own.

Earthjustice claims that Tile One of this Bill will:

Fail to ensure full liability for toxic waste cleanup, thus endangering the health of communities, causing significant delays in remediation, and placing a great burden on taxpayers to cover the shortfall, which is often substantial, particularly at hardrock mine sites and large chemical facilities. 

CERCLA 

108(b)(2) The level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. To the maximum extent practicable, the President shall cooperate with and seek the advice of the commercial insurance industry in developing financial responsibility requirements. Financial responsibility may be established Owners and operators may establish financial responsibility by any one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or and qualification as a self-insurer. In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this Act.

The Bill will add this to the end of CERCLA's Section 108:

Source

That's a requirement to send a report to Congress before promulgating any financial responsibility requirement.  Not sure how either of these changes " fail to ensure full liability for toxic waste cleanup."

Earthjustice claims that Tile One of this Bill will:

Place burdensome and unnecessary roadblocks to delay establishment of financial assurance requirements to ensure polluters have bonds or other insurance in place to cover the nation’s most costly and high risk Superfund cleanups. 

CERCLA

114(d) Except as provided in this title, no owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility in accordance with this title shall be required under any State or local law, rule, or regulation to establish or maintain any other evidence of financial responsibility in connection with liability for the release of a hazardous substance from such vessel or facility. Evidence of compliance with the financial responsibility requirements of this title shall be accepted by a State in lieu of any other requirement of financial responsibility imposed by such State in connection with liability for the release of a hazardous substance from such vessel or facility.

114(d) No owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility associated with the production, transportation, treatment, storage, or disposal of hazardous substances pursuant to financial responsibility requirements under any State law or regulation, or any other Federal law or regulation, shall be required to establish or maintain evidence of financial responsibility under this title, unless the President determines, after notice and opportunity for public comment, that in the event of a release of a hazardous substance that is not a federally permitted release or authorized by a State permit, such other Federal or State financial responsibility requirements are insufficient to cover likely response costs under section 104. If the President determines that such other Federal or State financial responsibility requirements are insufficient to cover likely response costs under section 104 in the event of such a release, the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements in lieu of compliance with any portion of the financial responsibility requirements promulgated under this title to which they correspond.

Okay, that's a pretty significant change.

This change to 114(d), as I read it (not a lawyer, blaw, blaw, blaw).  No wait.  This is my dang country and this is my dang Congress writing goshdarn Bills and putting them up for the public to comment.  I am the public and this is how I read the goshdarn thing.  So there!

114(d) removes from the President this ability:

[CERCLA] 108(b)(2) ...The level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction...

What the new language says is this:

If the President determines that such other Federal or State financial responsibility requirements are insufficient to cover likely response costs...the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements...

What this new language appears to do is shift the financial responsibility requirement to what is required under current federal law and allows the states to impose their own requirements.  The old language required the state to accept the same requirements.  This is kind of a role reversal where it is now the President that must except these financial liability responsibilities imposed by others.

Old: Evidence of compliance with the financial responsibility requirements of this title shall be accepted by a State in lieu of any other requirement of financial responsibility imposed by such State in connection with liability for the release of a hazardous substance from such vessel or facility.

New: the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements in lieu of compliance with any portion of the financial responsibility requirements promulgated under this title to which they correspond.

So there you have the Title One changes.  I don't see "evisceration" or "endangering the health of communities"  Businesses will still need to meet established federal financial requirements and must now meet state requirements that can be imposed.

That leaves just one more new section to look at.  Here is what that one says:

SEC. 6. EXPLOSIVE RISKS PLANNING NOTIFICATION.  Not later than 180 days after the date of enactment of this Act, the owner or operator of each facility at which substances listed in Appendix A to part 27 of Title 6, Code of Federal Regulations, as flammables or explosives are present above the screening threshold listed therein shall notify the State emergency response commission for the State in which such facility is located that such substances are present at such facility and of the amount of such substances that are present at such facility.

That seems to be there because of West Texas and some of the other hazardous material problems we have had lately.  I can't see how that section would give Earthjustice heartburn.

Maybe the other titles will have something that gets close to evisceration.

Next post: Eviscerating the longstanding principle of CERCLA: Part 2 

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