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

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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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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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

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Eviscerating the longstanding principle of CERCLA: Part 3

Looking into the actual Bill that HuffPost wrote about we can find a little bit more about how the majority and minority opinion sees these changes.

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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Eviscerating the longstanding principle of CERCLA: Part 2

The problem with the Bill that HuffPost linked to is that it does not give the reasoning for the Bill.  For that, I had to go to House Report.  Here is what they have to say about the Bill

Here is the Purpose and Summary:

The legislation removes unnecessary and outdated deadlines for certain rulemaking activities to be conducted by the Environmental Protection Agency (EPA) under the Solid Waste Disposal Act (commonly referred to as the Resource Conservation and Recovery Act or RCRA) and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).

The legislation requires EPA, before promulgating financial responsibility requirements under CERCLA, to evaluate existing State or other Federal financial assurance requirements to determine whether additional requirements are necessary.

Should EPA determine that additional financial assurance requirements are necessary to prevent the United States from incurring response costs under section 104 of CERCLA, the legislation protects the existing State or Federal requirements by requiring that EPA accept compliance with the existing requirements in lieu of compliance with the new EPA requirements.

The legislation also requires that the owner or operator of a facility that stores chemicals on the Department of Homeland Security Chemicals of Interest that are flammables or explosives above the identified threshold, to report the presence of such chemicals to the State emergency response commission.

The issue one could make revolves around this:

...by requiring that EPA accept compliance with the existing requirements in lieu of compliance with the new EPA requirements.

My read on that is if financial assurance requirements are found necessary by the EPA, that same EPA must accept compliance with existing requirements already in place.  Whereas before, under CERCLA, EPA (the President) could say we need this amount, this new law says that the only way to get that is to raise the financial assurance requirements in place under other federal, and now state laws.

Basically, it makes it unlikely that any change in the financial assurance requirements in place at this time will change in the future.  Although this gives more certainty for businesses in terms of that particular cost, it also makes it much more difficult - as I read it - to obtain "additional financial assurance requirements are necessary to prevent the United States from incurring response costs under section 104 of CERCLA."

That's not good for the taxpayer - in my opinion - but only if the taxpayer is left cleaning up the mess.  I am not sure how to look at this in terms of that impact to the taxpayer is actually there.  On one hand, it is doubtful that you could ever provide enough financial assurance to cover the response costs possible - look at the BP spill in the gulf.  That is, the taxpayer will always be on the hook because at some point the financial assurance will not be enough no matter how high you set it.

On the other hand, and I think most businesses would agree, you could, because of this financial assurance requirement, price a lot of companies out of business because they could not meet it or find and insurance company to offer them that amount of protection. Like it or not, there is a limit of what can be afforded and what an insurer is able to provide (that's why CERCLA says; "To the maximum extent practicable, the President shall cooperate with and seek the advice of the commercial insurance industry in developing financial responsibility requirements").

There is also something else that may be driving this.  If you want to stop something from taking place, say a pipeline for example, you could make that financial assurance so high as that it cannot be met.  This serves the purpose of an agenda.  This also works in stifling competition, by making it so costly that only the big boys can meet it.  It works both ways.

Other than this one issue, Title One of this Bill gives me no heartburn.  I think the senate could reconcile the possible burden to the taxpayer by requiring a minimum financial assurance equal to the median of what is required in all 50 states.  This way California does not dominate on the high side and Texas on the low.  Businesses would also have an idea of what the top amount they need would be.  This could be looked at every three or five years, giving some measure of certainty.

Eviscerating the longstanding principle of CERCLA: Part 3

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Eviscerating the longstanding principle of CERCLA: Part 1

Well Google News piqued my interest again.

House Republicans Just Quietly Passed A Bill Gutting Hazardous Waste Legislation

HuffPost goes on to say:

The Bill, called the Reducing Excessive Deadline Obligations Act, amends both the Solid Waste Disposal Act and the Comprehensive Environmental Response, Compensation and Liability Act (which is commonly known as Superfund).

...and...:

The environmental group Earthjustice has said the bill would "gut" the Superfund program, 

HuffPost was nice enough to give a link to the Earthjustice letter opposing the Bill.  There I am told:

The three bills that comprise H.R. 2279 weaken the nation’s hazardous waste laws and place American communities at increased risk of toxic exposure and financial liability in the following ways. 

So I read their letter and I read the Bill and I am left with the question of how?  I don't know about y'all, but reading legalize stuff takes a bit of time to get into the ol' noggin.  Plus, I am not a lawyer, though I have stayed at a Holiday Inn (add drum kerplunk here).

I thought that it might be easier to see what changes were made and how those changes actually look.  So here goes a try at the "how."

Earthjustice claims that Tile One of this Bill will:

Eliminate the requirement for EPA to ensure in a timely fashion that its hazardous waste regulations are current, relevant and effective to protect human health and the environment. The bill removes a requirement for periodic review of regulations under RCRA, making the timing of review wholly discretionary. 

Here is the change [Words in red are new.  Words with a line through them were deleted]

Solid Waste Disposal Act 2002

2002(b) REVISION OF REGULATIONS.—Each regulation promulgated under this Act shall be reviewed and, where necessary, revised not less frequently than every three years. 

2002(b) REVIEW OF REGULATIONS.—The Administrator shall review, and revise, as the Administrator determines appropriate, regulations promulgated under this Act.

Basically each regulation under the SWDA will only need to be reviewed and revised when deemed appropriate.  The part dealing with hazardous waste, RCRA, has been on the books since 1980.  This would mean that it has been" reviewed and, where necessary, revised" at least 10 times.  Most of the rule changes we have seen have been to reduce the regulatory burden by removing regulations that no longer serve a purpose.

Earthjustice claims that Tile One of this Bill will:

Eviscerate the longstanding principle of the Superfund law that polluters must pay for cleanup of hazardous waste releases by allowing insufficient existing requirements to block Superfund obligations, thereby leaving communities unprotected and taxpayers at risk of funding expensive cleanups.

CERCLA

108 (b)(1) Beginning not earlier than five years after the date of enactment of this Act, the President shall, promulgate requirements (for facilities in addition to those under subtitle C of the Solid Waste Disposal Act and other Federal law) that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. Not later than three years after the date of enactment of the Act, the President shall, as appropriate, identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register. Priority in the development of such requirements shall be accorded to those classes of facilities, owners, and operators which the President determines present the highest level of risk of injury.

Not sure how that equates to "evisceration" but to each their own.

Earthjustice claims that Tile One of this Bill will:

Fail to ensure full liability for toxic waste cleanup, thus endangering the health of communities, causing significant delays in remediation, and placing a great burden on taxpayers to cover the shortfall, which is often substantial, particularly at hardrock mine sites and large chemical facilities. 

CERCLA 

108(b)(2) The level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. To the maximum extent practicable, the President shall cooperate with and seek the advice of the commercial insurance industry in developing financial responsibility requirements. Financial responsibility may be established Owners and operators may establish financial responsibility by any one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or and qualification as a self-insurer. In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this Act.

The Bill will add this to the end of CERCLA's Section 108:

Source

That's a requirement to send a report to Congress before promulgating any financial responsibility requirement.  Not sure how either of these changes " fail to ensure full liability for toxic waste cleanup."

Earthjustice claims that Tile One of this Bill will:

Place burdensome and unnecessary roadblocks to delay establishment of financial assurance requirements to ensure polluters have bonds or other insurance in place to cover the nation’s most costly and high risk Superfund cleanups. 

CERCLA

114(d) Except as provided in this title, no owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility in accordance with this title shall be required under any State or local law, rule, or regulation to establish or maintain any other evidence of financial responsibility in connection with liability for the release of a hazardous substance from such vessel or facility. Evidence of compliance with the financial responsibility requirements of this title shall be accepted by a State in lieu of any other requirement of financial responsibility imposed by such State in connection with liability for the release of a hazardous substance from such vessel or facility.

114(d) No owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility associated with the production, transportation, treatment, storage, or disposal of hazardous substances pursuant to financial responsibility requirements under any State law or regulation, or any other Federal law or regulation, shall be required to establish or maintain evidence of financial responsibility under this title, unless the President determines, after notice and opportunity for public comment, that in the event of a release of a hazardous substance that is not a federally permitted release or authorized by a State permit, such other Federal or State financial responsibility requirements are insufficient to cover likely response costs under section 104. If the President determines that such other Federal or State financial responsibility requirements are insufficient to cover likely response costs under section 104 in the event of such a release, the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements in lieu of compliance with any portion of the financial responsibility requirements promulgated under this title to which they correspond.

Okay, that's a pretty significant change.

This change to 114(d), as I read it (not a lawyer, blaw, blaw, blaw).  No wait.  This is my dang country and this is my dang Congress writing goshdarn Bills and putting them up for the public to comment.  I am the public and this is how I read the goshdarn thing.  So there!

114(d) removes from the President this ability:

[CERCLA] 108(b)(2) ...The level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction...

What the new language says is this:

If the President determines that such other Federal or State financial responsibility requirements are insufficient to cover likely response costs...the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements...

What this new language appears to do is shift the financial responsibility requirement to what is required under current federal law and allows the states to impose their own requirements.  The old language required the state to accept the same requirements.  This is kind of a role reversal where it is now the President that must except these financial liability responsibilities imposed by others.

Old: Evidence of compliance with the financial responsibility requirements of this title shall be accepted by a State in lieu of any other requirement of financial responsibility imposed by such State in connection with liability for the release of a hazardous substance from such vessel or facility.

New: the President shall accept evidence of compliance with such other Federal or State financial responsibility requirements in lieu of compliance with any portion of the financial responsibility requirements promulgated under this title to which they correspond.

So there you have the Title One changes.  I don't see "evisceration" or "endangering the health of communities"  Businesses will still need to meet established federal financial requirements and must now meet state requirements that can be imposed.

That leaves just one more new section to look at.  Here is what that one says:

SEC. 6. EXPLOSIVE RISKS PLANNING NOTIFICATION.  Not later than 180 days after the date of enactment of this Act, the owner or operator of each facility at which substances listed in Appendix A to part 27 of Title 6, Code of Federal Regulations, as flammables or explosives are present above the screening threshold listed therein shall notify the State emergency response commission for the State in which such facility is located that such substances are present at such facility and of the amount of such substances that are present at such facility.

That seems to be there because of West Texas and some of the other hazardous material problems we have had lately.  I can't see how that section would give Earthjustice heartburn.

Maybe the other titles will have something that gets close to evisceration.

Next post: Eviscerating the longstanding principle of CERCLA: Part 2 

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