Eviscerating the longstanding principle of CERCLA: Part 6

Back for more.  EarthJustice letter urging Congress to oppose Title II of the Bill the House passed.  EarthJustice claims

• Cause delays in emergency Superfund cleanups... 
• Allow states to reduce their cost share for cleanup... 
• Establish roadblocks to listing new toxic waste sites on the National Priority List... 

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

Current: 105(a)(8)(B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list no less often than annually. Within one year after the date of enactment of this Act, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities established by the States. To the extent practicable, the highest priority facilities shall be designated individually and shall be referred to as the ‘‘top priority among known response targets’’, and, to the extent practicable, shall include among the one hundred highest priority facilities one such facility from each State which shall be the facility designated by the State as presenting the greatest danger to public health or welfare or the environment among the known facilities in such State. A State shall be allowed to designate its highest priority facility only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes; and

New: 105(a)(8)(B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list no less often than annually. Within one year after the date of enactment of this Act, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities established by the States. Not later than 90 days after any revision of the national list, with respect to a priority not included on the revised national list, upon request of the State that submitted the priority for consideration under this subparagraph, the President shall provide to such State, in writing, the basis for not including such priority on such revised national list. The President may not add a facility to the national list over the written objection of the State, unless (i) the State, as an owner or operator or a significant contributor of hazardous substances to the facility, is a potentially responsible party, (ii) the President determines that the contamination has migrated across a State boundary, resulting in the need for response actions in multiple States, or (iii) the criteria under the national contingency plan for issuance of a health advisory have been met. Not more frequently than once every 5 years, a State may designate a facility that meets the criteria set forth in subparagraph (A) of this paragraph, which shall be included on the national list; and

 Here is what the EPA says about this change:

The proposal amends CERCLA Section 105 by adding a statutory requirement that EPA cannot list a site on the NPL if a state objects to listing. EPA’s current policy and practice is to not list a site without state concurrence, therefore, this legislative proposal is unnecessary. In addition, there are important policy caveats to EPA’s policy that are not addressed in the legislative proposal. Under current policy, EPA reserves its right to exercise its statutory listing authority when a state is a liable party under CERCLA, when a release of hazardous substances or pollutants and contaminants have crossed state lines, or where the Agency for Toxic Substances and Disease Registry has issued a public health advisory.

I think this language meets EPA's concerns.

The last change in Title II for this section is this:

Current: 121(f)(1)(C) State concurrence in deleting sites from the National Priorities List.

New: 121(f)(1)(C) State concurrence in adding sites to, and deleting sites from, the National Priorities List.

The EPA does not seem to say anything about this, though they did say that it is "EPA’s current policy and practice is to not list a site without state concurrence" so that change does not really change anything.

So there you have it.  That's Title II all laid out with the changes and with EPA's comments.  Like I said previously.  When there is a change in power, it makes people uncomfortable.  That being said, I cannot see any devious underhanded things that can come out of this.  Giving power to the states is not unprecedented, in fact, its pretty much the way our federal laws are designed.  CERCLA is old thinking from way, way back in the lats 70's and early 80's.  States have good environmental programs now that they did not back then.

So for Title II, I don't think EarthJustice's concerns rise to the level of evisceration or "place the health of our communities and our environment in great danger."  I'll give them the possibility that it might "increase the cost of hazardous waste cleanup for U.S. taxpayers."

Last one to go.  Let's look at Title III of the House Bill.


Eviscerating the longstanding principle of CERCLA: Part 7

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