Eviscerating the longstanding principle of CERCLA: Part 7

I want to now look at EarthJustice letter urging Congress to oppose Title III of the Bill the House passed called the "Federal Facility Accountability Act of 2013."  Here is what EarthJustice claims will result:

Potentially increase costs and delay cleanups at hazardous waste sites owned by federal facilities, some of the largest and most dangerous Superfund sites in the nation. 

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

Current: 120(a)(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES.— All guidelines, rules, regulations, and criteria which are applicable to preliminary assessments carried out under this Act for facilities at which hazardous substances are located, applicable to evaluations of such facilities under the National Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial actions at such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this Act.

New: 120(a)(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES.— All guidelines, rules, regulations, and criteria which are applicable to response actions carried out under this Act for facilities at which hazardous substances are located, applicable to evaluations of such facilities under the National Contingency Plan, or applicable to inclusion on the National Priorities List, shall also be applicable to facilities which are, or have been owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this Act.

The next change is this:

 Current: 120(a)(4) STATE LAWS.—State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States or facilities that are the subject of a deferral under subsection (h)(3)(C) when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality.

New: 

Source

And finally, the last change to CERCLA they make is:

Current: SEC. 115. The President is authorized to delegate and assign any duties or powers imposed upon or assigned to him and to promulgate any regulations necessary to carry out the provisions of this title.

New: SEC. 115. The President is authorized to delegate and assign any duties or powers imposed upon or assigned to him and to promulgate any regulations necessary to carry out the provisions of this title. If the President delegates or assigns any duties or powers under this section to a department, agency, or instrumentality of the United States other than the Administrator, the Administrator may review, as the Administrator determines necessary or upon request of any State, actions taken, or regulations promulgated, pursuant to such delegation or assignment, for purposes of ensuring consistency with the guidelines, rules, regulations, or criteria established by the Administrator under this title.

All of this is beyond my scope to comment on, so I'll let the pro and con already out there do it for me.

Background and Need for Legislation

...It is clear that Congress intended Federal facilities conducting response actions under CERCLA to be on an equal footing with non-Federal entities. However, waivers of sovereign immunity are strictly construed by Courts, and ambiguities are resolved in favor of the sovereign. 

...After the Supreme Court's decision [RCRA & CWA soverign immunity], the consensus among lawmakers was that there was a double standard in the United States by which the same government that developed laws to protect human health and the environment, and required compliance in the private sector, was itself not assuming the burden of compliance. In response, Congress passed the Federal Facilities Compliance Act in 1992, which amended the waiver of sovereign immunity in the Solid Waste Disposal Act to specifically identify the State substantive and procedural requirements applicable to Federal facilities.

...The [Bill's] Committee recognizes that there is no such limitation on liability for non-Federal parties and that such a distinction is contrary to Congress' intent that requirements under CERCLA and State law apply to the Federal government in the same manner as non-Federal facilities.

Here is what the EPA says about this:

...we note that the extension of Section 120 to facilities that were owned by federal entities at any time in the past could present a significant unfunded burden on federal agencies. In addition, there is no definition currently in CERCLA or in the legislative proposal that defines the meaning of state “containment” requirements.

...The amendment would allow a State to issue a federal agency an administrative order under state law, and require the federal agency to comply with the State’s order, even if the State’s response action conflicts with a response action selected by the federal agency in accordance with other provisions of CERCLA.

...In addition, the legislative proposal would make federal Departments and Agencies subject to state injunctive actions, federal employees subject to state civil penalties, and make federal employees subject to state criminal actions for any act or omission related to state procedural or substantive requirements. 

...Further, the proposal provides for states to charge federal Departments and Agencies service fees and oversight costs for permitting, document review, inspections and monitoring, or any other assessed charges related to state response, containment, or hazardous substance activities. 

What's good for the goose is good for the gander?

So there you have it.  The whole House Bill laid out in seven easy to read insomnia guaranteed posts.

Does this Bill, as EarthJustice claims:

 "Eviscerate the longstanding principle of the Superfund law that polluters must pay for cleanup of hazardous waste releases" and/or "place the health of our communities and our environment in great danger?"

Not that I can see.

Does it work to overturn EarthJustice's win in the courts to get the EPA to make a decision on Coal Ash as a hazardous waste?  Yes.

Does it shift a lot of the costs for cleanup and removal back to the federal government?  Yes.

"Eviscerate" and "great danger" do not apply here.

Thanks for reading.

End