Eviscerating the longstanding principle of CERCLA: Part 4

Okay, back to EarthJustice letter urging Congress to oppose this Bill.  Let's look at what they say about Title II of the Bill the House passed.

Title II will:

Cause delays in emergency Superfund cleanups by requiring unnecessary consultation prior to initiating urgent, time-sensitive removal actions. 

Allow states to reduce their cost share for cleanup, thereby decreasing the funds available for additional cleanup efforts. 

Establish roadblocks to listing new toxic waste sites on the National Priority List (NPL) by giving states the power to veto such listings. The NPL is the list of the most dangerous toxic waste sites in the nation, and the listing of a site is often a prerequisite to its cleanup. 

Here is what Title II of the Bill the House passed does: (red text is new and line out is removed)

Current: 104(a)(2) REMOVAL ACTION.—Any removal action undertaken by the President under this subsection (or by any other person referred to in section 122) should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened release concerned.

New: 104(a)(2) REMOVAL ACTION. In undertaking a removal action under this subsection, the President (or any other person undertaking a removal action pursuant to section (122) shall consult with the affected State or States. Such removal action should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened release concerned.

This language is consistent with previous language putting the state's interests into the mix when it was not included.

Current: 104(c)(2) The President shall consult with the affected State or States before determining any appropriate remedial action to be taken pursuant to the authority granted under subsection (a) of this section.

New: 104(c)(2) The President shall consult with the affected State or States during the process of selecting, and in selecting, any appropriate remedial action to be taken pursuant to the authority granted under subsection (a) of this section.

Okay, so the states should be kept in the loop the whole time.

Current: 104(c)(4) SELECTION OF REMEDIAL ACTION.—The President shall select remedial actions to carry out this section in accordance with section 121 of this Act (relating to cleanup standards).

New: 104(c)(4) SELECTION OF REMEDIAL ACTION.—The President shall, in consultation with the affected State or States, select remedial actions to carry out this section in accordance with section 121 of this Act (relating to cleanup standards).

Once again, this puts the state's needs and wants into the mix.

Current: 120(f) STATE AND LOCAL PARTICIPATION.—The Administrator and each department, agency, or instrumentality responsible for compliance with this section shall afford to relevant State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State officials, the opportunity to participate shall be provided in accordance with section 121.

New: 120(f) STATE AND LOCAL PARTICIPATION.—The Administrator and each department, agency, or instrumentality responsible for compliance with this section shall consult with relevant State and local officials and shall provide such State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State officials, the opportunity to participate shall be provided in accordance with section 121. If State or local officials make a determination not to participate in the planning and selection of the remedial action, such determination shall be documented in the administrative record regarding the selection of the response action.

Okay, states get input.

So that's Title II. I am not sure how, nor do I see, any of EarthJustice's concerns expressed regarding time delay, roadblocks, or keeping sites off the NPL.  Can a state throw up a roadblock?  You mean like what they did with healthcare?  Sure.  On the other hand, some states would like more input to what goes on in their backyard and not get forced into someone elses determination of imminent, substantial, or harmful.

Here is how the EPA sees the potential for delay:

As required by the NCP, EPA’s current policy and practice is to consult with states prior to undertaking removal actions. During EPA and state consultation and work-planning, it is not unusual for states to request that the agency conduct a removal action. However, if enacted, we are concerned that this provision, which would be required under all circumstances, could potentially have an adverse impact on our emergency removal program by introducing potential delays when EPA needs to conduct time-critical emergency removal actions.

Yes, a state could drag their feet to purposely delay the removal.  My guess is that the EPA does not want the check-box-we consulted-with-you-now-can-we-start to gum up the need to get er' done quickly.

Look, y'all know the reputation we have here in Texas about government, business, and the EPA.  But even in Texas we respond to spills and environmental impact and put public health concerns front and center.  Any change to an existing law that shifts the balance of power is seen as potentially problematic.

Let's move to the next section within Title II: STATE CREDIT FOR OTHER CONTRIBUTIONS

Maybe that's where the opposition lies.


Next Post: Eviscerating the longstanding principle of CERCLA: Part 5

.