EarthJustice has 129 public interest groups urging Congress to oppose this Bill:
...because these three bills place the health of our communities and our environment in great danger and increase the cost of hazardous waste cleanup for U.S. taxpayers....and here is what the Bill's authors say about their Bill regarding the need for this legislation:
RCRA and CERCLA both contain deadlines that were enacted over thirty years ago and now either are outdated or unnecessary. Section 2002(b) of RCRA was enacted as part of the 1976 Amendments to the Solid Waste Disposal Act at a time when the complexity and volume of regulations was significantly less. To require EPA to review and, if necessary, revise all current regulations under RCRA every three years would pose an unnecessary regulatory burden on the Agency.
Section 108(b)(1) of CERCLA was enacted in 1980 and contains a deadline by which EPA was to identify the classes for which financial responsibility requirements would first be developed. EPA missed the deadline by almost thirty years, but has since completed the task of identifying the classes of facilities. These deadlines are no longer appropriate.
CERCLA section 108(b) gives EPA authority to establish Federal requirements for financial responsibility for various classes of facilities consistent with the degree and duration of risk associated with the facilities' production, transportation, treatment, storage, or disposal of hazardous substances. The intent of section 108(b) was to reduce future reliance on the Hazardous Substances Superfund and to assure the availability of funds to address the release of hazardous substances.
When CERCLA was enacted in 1980, Congress directed the President to identify the classes of facilities that presented the highest risk of injury no later than three years after the date of enactment, and Congress likely intended that the process of establishing financial responsibility requirements would be done quickly. However, for almost thirty years, EPA did not start the process of establishing requirements under section 108(b), leaving States or other Federal agencies to promulgate financial responsibility requirements.
A significant body of State and other Federal law currently exists that requires facilities to provide evidence of financial responsibility. It is important that EPA understand the existing financial responsibility requirements under State or other Federal law because it is unnecessary for EPA to establish financial responsibility requirements under section 108(b) for facilities or classes of facilities that are already sufficiently covered by State or other Federal law or regulations. It also is important that the existing State or other Federal requirements be protected and that compliance with these requirements be counted towards compliance with any new requirements determined to be necessary by EPA.Interesting bit of backstory there. I did not know this.
Now lets look at the dissenting view on this Bill:
The legislation would amend RCRA to repeal a requirement that regulations be reviewed every three years, with the primary effect of blocking ongoing litigation brought by industry and environmental groups.
The legislation would also complicate the process for establishing federal financial responsibility requirements for the most polluting industries, and prevent those requirements from going into effect in some states, potentially leaving cleanup costs to taxpayers.Here is the opposition's arguments:
Although the majority report states that the requirement to review and, if necessary, revise RCRA regulations every three years ``would pose an unnecessary regulatory burden on the Agency'' that requirement is longstanding and there is no evidence before the Committee that it has imposed a burden on the Agency. Democratic members submitted questions to EPA for the record of the hearing on this bill, seeking information about the time spent by staff carrying out this requirement. According to EPA, no staff time (0 FTEs) is used to carry out this requirement.I'll let you decide on that accuracy of that last sentence. That could be true because it was not being performed. Okay, please continue...:
The primary effect of this provision [remove the three year review requirement under SWDA] appears to be to pick winners and losers in pending litigation. The Subcommittee on Environment and the Economy heard at the May 17, 2013, legislative hearing on this bill that only three lawsuits have ever been brought to enforce this deadline, and all have been brought in the last year because of significant delays in EPA's coal ash rulemaking. An attorney bringing one of those suits, Abigail Dillen of EarthJustice, testified that the discussion draft would threaten that ongoing lawsuit.The plot thickens...
In a decision Tuesday, U.S. District Judge Reggie Walton of the D.C. Circuit Court gave the EPA 60 days to file what he calls “a proposed deadline for its compliance with its obligation to review and revise if necessary … regulations concerning coal ash,” as well as any legal reasoning for the timeline. The memorandum follows an earlier judicial order, issued Sept. 30, partly ruling in favor of Earthjustice and 10 other groups in a lawsuit challenging the EPA over its slow regulatory action. (1)Ahhh. So EarthJustice went after the EPA regarding their slow rulemaking for coal ash under the argument that they had three years to "review and revise if necessary." Here is what The Center for Public Integrity writes about this case:
Debate over federal regulation of coal ash has dragged on for decades. After a disastrous December 2008 spill in eastern Tennessee, the EPA pledged to act. In June 2010, the agency announced a proposal to begin regulating the disposal of coal ash, presenting two alternatives in a 563-page draft. Under the first option, the EPA would classify the ash as “hazardous,” triggering a series of strict controls for its dumping. The second option would deem coal ash “non-hazardous” and subject it to less stringent national standards that amount to guidelines for states.
Three years after unveiling its plan, however, the EPA has delayed the rules, sparking the environmental groups’ legal challenge.
In Tuesday’s decision, Walton sided with the environmental groups in finding that, under federal waste law, the EPA has a duty to review and, if necessary, revise rules every three years. But the agency has not done so for rules governing coal-ash disposal since 2000.
“The language is unambiguous in its command,” the judge wrote, “and contains no limitation ending the EPA’s obligation to undertake such reviews and revisions at least every three years.”"Unambiguous in its command."
So remove the three year requirement under the SWDA for the EPA to "review, and revise, as the Administrator determines appropriate, regulations promulgated under this Act" and that "unambiguous" thingy goes away.
Could this be what this Bill is all about? "Only three lawsuits have ever been brought to enforce this deadline, and all have been brought in the last year because of significant delays in EPA's coal ash rulemaking." The plot thickens again.
Coal ash aside, that's for another post...maybe...on should it be, or should it not be, a hazardous waste. I still want to know how this Bill "eviscerates CERCLA" and "places the health of our communities and our environment in great danger." At this point the Bill seems aimed at taking away that "unambiguous" dealypopper EarthJustice won in their court challenge in order to get the EPA to decide.
No decision is good for the coal ash guys and also keeps the EPA out of the nasty fight that happens when a proposed rule is put out for public comment. I can't blame the EPA for kicking it down the road, but...their job is to regulate regardless of the pain of that fight. It is, or it is not, hazardous waste.
Dang, when I started I thought this would be a three part post. Title one, two and three of the Bill. But this is going down a rabbit hole I need to explore.
Eviscerating the longstanding principle of CERCLA: Part 4
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