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RCRA and CERCLA both contain deadlines that were enacted over thirty years ago and now either are outdated or unnecessary.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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