Eviscerating the longstanding principle of CERCLA: Part 5

Still on the 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, 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: 104(c)(5)(A) GRANTING OF CREDIT.—The President shall grant a State a credit against the share of the costs, for which it is responsible under paragraph (3) with respect to a facility listed on the National Priorities List under the National Contingency Plan, for amounts expended by a State for remedial action at such facility pursuant to a contract or cooperative agreement with the President. The credit under this paragraph shall be limited to those State expenses which the President determines to be reasonable, documented, direct out-of-pocket expenditures of non-Federal funds.

 New: 104(c)(5)(A) GRANTING OF CREDIT.—The President shall grant a State a credit against the share of the costs, for which it is responsible under paragraph (3) with respect to a facility listed on the National Priorities List under the National Contingency Plan, for amounts expended by a State for removal at such facility, or for remedial action at such facility pursuant to a contract or cooperative agreement with the President. The credit under this paragraph shall be limited to those State expenses which the President determines to be reasonable, documented, direct out-of-pocket expenditures of non-Federal funds, including oversight costs and in-kind expenditures. For purposes of this paragraph, in-kind expenditures shall include expenditures for, or contributions of, real property, equipment, goods, and services, valued at a fair market value, that are provided for the removal or remedial action at the facility, and amounts derived from materials recycled, recovered, or reclaimed from the facility, valued at a fair market value, that are used to fund or offset all or a portion of the cost of the removal or remedial action.

And...

Current: 104(c)(5)(B) EXPENSES BEFORE LISTING OR AGREEMENT.—The credit under this paragraph shall include expenses for remedial action at a facility incurred before the listing of the facility on the National Priorities List or before a contract or cooperative agreement is entered into under subsection (d) for the facility if—

New: 104(c)(5)(B) EXPENSES BEFORE LISTING OR AGREEMENT.—The credit under this paragraph shall include expenses for removal or remedial action at a facility incurred before the listing of the facility on the National Priorities List or before a contract or cooperative agreement is entered into under subsection (d) for the facility if—

Not too much here.  They added "removal" along with remedial action.

Not sure the basis behind that one.  I would guess it was a legal challenge to reimbursement when the remedy was removal only.  Here is what EPA says about this section:

It should be noted that there is currently no state cost-share requirement under CERCLA for EPA funded removal actions, so there is no cost share against which to apply such a credit. In addition, the proposal would also significantly broaden the state services eligible for this credit and would place an additional burden on EPA appropriated remedial cleanup funding by potentially diminishing state cost-share funding and increasing EPA’s administrative costs. 

As I suspected, that's why "removal" is being added.  Looks like what else this does is shifts costs to the EPA.  What the EPA proposes is this:

To help address remedial cleanup funding challenges, the FY 2014 President’s budget request once again supports reinstatement of lapsed Superfund taxes to provide a stable, dedicated revenue source for the Superfund program.

So in a roundabout way, EarthJustice isn't being misleading when they claim:

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

That could be remedied with reinstatement of the Superfund tax.

Under the title: STATE ENVIRONMENTAL COVENANT LAW, CERCLA gets amended as follows:

Current: 121(d)(2)(A)(ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. 

New: 121(d)(2)(A)(ii) any promulgated standard, requirement, criteria, or limitation under a State environmental, facility siting, or environmental covenant law, or under a State law or regulation requiring the use of engineering controls or land use controls that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. 

Boy, talk about a run on sentence!  I don't see any comments from EPA on this one.  Looks like they added additional things that are now in place, such as land use controls recorded on deeds restricting what the property can be used for.

So that leaves one more section to look at under Title II;

STATE CONCURRENCE WITH LISTING ON THE NATIONAL PRIORITIES LIST

Eviscerating the longstanding principle of CERCLA: Part 6

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