[House Report 113-179]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-179
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013
_______
July 30, 2013.--Ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2279]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2279) to amend the Solid Waste Disposal Act
relating to review of regulations under such Act and to amend
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 relating to financial responsibility for
classes of facilities, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 9
Statement of General Performance Goals and Objectives............ 9
New Budget Authority, Entitlement Authority, and Tax Expenditures 9
Earmarks, Limited Tax Benefits, and Limited Tariff Benefits...... 9
Committee Cost Estimate.......................................... 9
Congressional Budget Office Estimate............................. 9
Federal Mandates Statement....................................... 10
Duplication of Federal Programs.................................. 11
Disclosure of Directed Rule Makings.............................. 11
Advisory Committee Statement..................................... 11
Applicability to Legislative Branch.............................. 11
Section-by-Section Analysis of the Legislation................... 11
Changes in Existing Law Made by the Bill, as Reported............ 13
Dissenting Views................................................. 16
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reducing Excessive Deadline
Obligations Act of 2013''.
SEC. 2. REVIEW OF REGULATIONS UNDER THE SOLID WASTE DISPOSAL ACT.
Section 2002(b) of the Solid Waste Disposal Act (42 U.S.C. 6912(b))
is amended to read as follows:
``(b) Review of Regulations.--The Administrator shall review, and
revise, as the Administrator determines appropriate, regulations
promulgated under this Act.''.
SEC. 3. FINANCIAL RESPONSIBILITY FOR CLASSES OF FACILITIES UNDER
CERCLA.
Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9608(b)) is
amended--
(1) in paragraph (1)--
(A) by striking ``Not later than three years after
the date of enactment of the Act, the President shall''
and inserting ``The President shall, as appropriate,'';
and
(B) by striking ``first'' after ``for which
requirements will be''; and
(2) in paragraph (2)--
(A) by striking ``Financial responsibility may be
established'' and inserting ``Owners and operators may
establish financial responsibility'';
(B) by striking ``any one, or any combination, of the
following:'' and inserting ``forms of security,
including''; and
(C) by striking ``or qualification'' and inserting
``and qualification''.
SEC. 4. REPORT TO CONGRESS REGARDING FINANCIAL RESPONSIBILITY
REQUIREMENTS.
Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9608(b)) is further
amended by adding at the end the following:
``(6) The President may not promulgate any financial responsibility
requirement under this subsection without first submitting to Congress
a report--
``(A) describing each facility or class of facilities to be
covered by such requirement;
``(B) describing the development of such requirement, why the
facility or class of facilities proposed to be covered by such
requirement present the highest level of risk of injury, and
why the facility or class of facilities is not already covered
by adequate financial responsibility requirements;
``(C) describing the financial responsibility requirements
promulgated by States or other Federal agencies for the
facility or class of facilities to be covered by the financial
responsibility requirement proposed under this subsection and
explaining why the requirement proposed under this subsection
is necessary;
``(D) describing the exposure to the Fund for response costs
resulting from the facility or class of facilities proposed to
be covered; and
``(E) describing the capacity of the financial and credit
markets to provide instruments of financial responsibility
necessary to meet such requirement.
The President shall update any report submitted under this paragraph to
reflect any revision of the facilities or classes of facilities to be
covered by a financial responsibility requirement that is the subject
of such report.''.
SEC. 5. PREEMPTION OF FINANCIAL RESPONSIBILITY REQUIREMENTS.
Section 114(d) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9614(d)) is amended
to read as follows:
``(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.''.
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.
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.
Background and Need for 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.
Hearings
The Subcommittee on Environment and the Economy held a
hearing entitled ``Discussion Draft, the Reducing Excessive
Deadline Obligations Act of 2013'' on May 17 and 22, 2013. The
Subcommittee received testimony from:
Carolyn Hanson, Deputy Executive Director,
Environmental Council of States;
Jeffery Steers, Director Central Office
Division of Land Protection and Revitalization Virginia
Department of Environmental Quality;
Dan Miller, Senior Assistant Attorney
General, Natural Resources and Environment Division,
Colorado Department of Law;
Abigail Dillen, Coal Program Director,
Earthjustice;
Thomas Duch, City Manager, City of Garfield,
New Jersey;
David Bearden, Specialist in Environmental
Policy, Congressional Research Service; and,
David Trimble, Director, Natural Resources
and Environment, Government Accountability Office.
Committee Consideration
On June 5 and 6, 2013, the Subcommittee on Environment and
the Economy met in open markup session and approved the
Committee Print entitled ``Reducing Excessive Deadline
Obligations Act of 2013'' for full Committee consideration,
without amendment, by a voice vote.
On June 18 and 19, 2013, the full Committee on Energy and
Commerce met in open markup session and considered H.R. 2279.
During the markup, four amendments were offered and two were
adopted. An amendment offered by Mr. Gardner was adopted by
voice vote, and an amendment offered by Mr. Waxman was adopted
by voice vote. On June 19, 2013, the Committee ordered H.R.
2279 favorably reported to the House, as amended, by a recorded
vote of 25 ayes and 18 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were three record votes taken in connection with ordering
H.R. 2279 reported. A motion by Mr. Upton to order H.R. 2279
reported to the House, as amended, was agreed to by a recorded
vote of 25 ayes and 18 nays. The following reflects the
recorded votes taken during the Committee consideration:
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a hearing and made
findings that are reflected in this report.
Statement of General Performance Goals and Objectives
The goals and objectives of H.R. 2279 are to remove
unnecessary deadlines from the Solid Waste Disposal Act and the
Comprehensive Environmental Response Compensation and Liability
Act and to preserve existing financial responsibility
requirements.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2279, the ``Reducing Excessive Deadline Obligations Act of
2013,'' would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmarks, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 2279, the ``Reducing Excessive Deadline
Obligations Act of 2013,'' contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
June 26, 2013.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2279, the Reducing
Excessive Deadline Obligations Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2279--Reducing Excessive Deadline Obligations Act of 2013
H.R. 2279 would amend laws concerning the Environmental
Protection Agency's (EPA's) oversight of hazardous substances.
The bill would authorize EPA to review regulations related to
solid waste disposal only when necessary instead of every three
years as required under current law. The legislation also would
remove a long-expired deadline, which EPA has already met,
regarding regulations for the owners and operators of certain
types of facilities that produce, transport, treat, store, and
dispose of hazardous substances. In addition, the bill would
direct that any financial requirements established by EPA for
such owners and operators do not preempt state or other federal
agency requirements.
The bill also would require EPA to report to the Congress
any financial responsibility requirements it intends to
establish under the Comprehensive Environmental Response,
Compensation, and Liability Act. Finally, H.R. 2279 would
require certain facilities holding flammable or explosive
materials to report on those holdings to state and local
officials.
Based on information from EPA, CBO expects that removing
the current requirement to review certain regulations every
three years would reduce administrative costs. However, some of
those savings in administrative expenses would be offset by
spending on the new requirement to report to the Congress any
financial responsibility requirements. CBO estimates that, on
balance, implementing this legislation would not have a
significant net impact on spending that is subject to
appropriation over the 2014-2018 period. Enacting H.R. 2279
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
H.R. 2279 contains an intergovernmental and private-sector
mandate as defined in the Unfunded Mandates Reform Act (UMRA).
The bill would require some owners or operators of facilities
that store flammable or explosive substances to provide
information about the amount of such substances at the facility
to state emergency response commissions. Because those owners
and operators submit similar information to federal agencies,
CBO estimates that the cost to submit information to state
commissions would be minimal. Consequently, CBO estimates that
the costs of the mandate would fall well below the annual
thresholds established in UMRA for intergovernmental and
private-sector mandates ($75 million and $150 million in 2013,
respectively, adjusted annually for inflation).
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), J'nell Blanco (for the state and
local impact), and Amy Petz (for the private-sector impact).
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 2279 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 2279 does not
specifically direct to be completed any specific rule makings
within the meaning of 5 U.S.C. 551.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1--Short title
This section entitles the Act the ``Reducing Excessive
Deadline Obligations Act of 2013.''
Section 2--Review of regulations under the Solid Waste Disposal Act
This section amends section 2002(b) of the Solid Waste
Disposal Act to allow EPA to review and revise regulations
promulgated under the Solid Waste Disposal Act as the
Administrator determines to be appropriate. The Committee
intends that this section reduce the regulatory and resource
burden on EPA, while preserving the Agency's ability to review
and revise regulations as necessary.
Section 3--Financial responsibility for classes of facilities under
CERCLA
Paragraph (1) of this section amends section 108(b)(1) of
CERCLA by striking the deadline that three years after the date
of enactment the President identify classes of facilities for
which to develop financial assurance regulations.
Paragraph (2) of this section amends section 108(b)(2) of
CERCLA by adding the provision that owners or operators may
establish financial responsibility through the forms of
security identified in the statute: insurance, guarantee,
surety bond, letter of credit, and qualification as a self-
insurer. The Committee intends that the owner or operator of a
facility, rather than EPA, identify the appropriate mechanism
to establish evidence of financial responsibility for
requirements promulgated under section 108(b). The Committee
also intends that insurance, guarantee, surety bond, letter of
credit, and qualification as a self-insurer all be accepted as
evidence of financial responsibility.
Section 4--Report to Congress regarding financial responsibility
requirements
This section amends section 108(b) of CERCLA by adding a
new paragraph (6), which requires that the President, prior to
promulgating any financial responsibility requirement under
this subsection, submit a report to Congress describing: (1)
the facilities or classes of facilities for which financial
responsibility requirements are being developed; (2) the
development of the financial responsibility requirement and why
the facility or class of facility is not already covered by
adequate financial responsibility requirements; (3) the
financial responsibility requirements promulgated by States or
other Federal agencies for the facility or class of facilities
and explaining why the regulations by EPA are necessary; (4)
the exposure to the United States for response costs resulting
from the facility or class of facilities; and (5) the capacity
of the financial markets to provide instruments of financial
responsibility necessary to meet the new EPA requirement. The
Committee acknowledges that the purpose of section 108(b) of
CERCLA was to prevent the United States from incurring response
costs under section 104 of CERCLA for the cleanup of hazardous
substances. The Committee recognizes that the President has not
yet promulgated financial responsibility requirements under
section 108(b), and in the more than thirty years since CERCLA
was enacted, States and other Federal agencies have developed
financial responsibility requirements for many of the
facilities or classes of facilities that the President has
identified as the priorities for development of financial
responsibility requirements. The Committee intends that prior
to promulgating requirements under section 108(b), EPA must
determine whether additional financial responsibility
requirements are necessary. The Committee expects EPA to make
the determination based on the existing financial
responsibility requirements for a facility or class of
facilities and an assessment of whether there is likely to be a
cost to the Federal government for remediation despite the
existing financial responsibility requirements.
Section 5--Preemption of financial responsibility requirements
This section amends section 114(d) of CERCLA by replacing
the existing language with language that provides that if an
owner or operator of a facility or vessel already has
established evidence of financial responsibility under State
law or under any other Federal law, they are not required to
establish evidence of financial responsibility under this title
unless the President determines that, in the event of a non-
permitted release of hazardous substances, the existing
financial responsibility requirements will not be sufficient to
cover likely response costs under section 104 of CERCLA. This
section also provides that if the President determines that
such other Federal or State financial responsibility
requirements are sufficient to cover likely response costs
under section 104 then the President shall accept evidence of
compliance with such other Federal or State financial
responsibility requirements in lieu of compliance with the
financial responsibility requirements. The Committee expects
that requirements promulgated by EPA under section 108(b) will
not duplicate existing financial responsibility requirements.
The Committee intends that, to the extent that existing State
or other Federal financial responsibility requirements protect
the United States from incurring response costs under section
104, that evidence of compliance with the State or other
Federal agency financial responsibility requirements be
sufficient to establish compliance with requirements
promulgated under section 108(b).
Section 6--Explosive risks planning notification
This section requires that, not later than 180 days after
the date of enactment, owners or operators of facilities that
store substances listed in Appendix A to part 27 of title 6,
Code of Federal Regulations that are flammables or explosives
and stored in amounts above the screening threshold, must
notify the State emergency response commission in the State in
which the facility is located.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SOLID WASTE DISPOSAL ACT
* * * * * * *
TITLE II--SOLID WASTE DISPOSAL
* * * * * * *
Subtitle B--Office of Solid Waste; Authorities of the Administrator
* * * * * * *
authorities of administrator
Sec. 2002. (a) * * *
[(b) Revision of Regulations.--Each regulation promulgated
under this Act shall be reviewed and, where necessary, revised
not less frequently than every three years.]
(b) Review of Regulations.--The Administrator shall review,
and revise, as the Administrator determines appropriate,
regulations promulgated under this Act.
* * * * * * *
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980
* * * * * * *
TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
* * * * * * *
financial responsibility
Sec. 108. (a) * * *
(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] 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.
(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:] forms of security, including
insurance, guarantee, surety bond, letter of credit, [or
qualification] 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.
* * * * * * *
(6) The President may not promulgate any financial
responsibility requirement under this subsection without first
submitting to Congress a report--
(A) describing each facility or class of facilities
to be covered by such requirement;
(B) describing the development of such requirement,
why the facility or class of facilities proposed to be
covered by such requirement present the highest level
of risk of injury, and why the facility or class of
facilities is not already covered by adequate financial
responsibility requirements;
(C) describing the financial responsibility
requirements promulgated by States or other Federal
agencies for the facility or class of facilities to be
covered by the financial responsibility requirement
proposed under this subsection and explaining why the
requirement proposed under this subsection is
necessary;
(D) describing the exposure to the Fund for response
costs resulting from the facility or class of
facilities proposed to be covered; and
(E) describing the capacity of the financial and
credit markets to provide instruments of financial
responsibility necessary to meet such requirement.
The President shall update any report submitted under this
paragraph to reflect any revision of the facilities or classes
of facilities to be covered by a financial responsibility
requirement that is the subject of such report.
* * * * * * *
relationship to other law
Sec. 114. (a) * * *
* * * * * * *
[(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.]
(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.
* * * * * * *
DISSENTING VIEWS
As introduced, H.R. 2279 was comprised of unrelated
amendments to the Resource Conservation and Recovery Act (RCRA)
and the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA). The legislation is not based on an
oversight record before the Committee, and has not been
publicly endorsed by any stakeholders. 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. H.R. 2279 was amended during Committee
consideration to require facilities holding dangerous
quantities of flammable and explosive chemicals to report those
holdings to state emergency planners within 180 days of the
bill's enactment into law. These provisions are described more
fully below.
THE RCRA AMENDMENT
RCRA requires the Environmental Protection Agency (EPA) to
review, and where necessary, revise, regulations promulgated
under RCRA every three years.\1\ H.R. 2279 would repeal this
requirement and replace it with discretionary authority to
review regulations.
---------------------------------------------------------------------------
\1\Resource Conservation and Recovery Act Sec. 2002(b), 42 U.S.C.
Sec. 6912(b).
---------------------------------------------------------------------------
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.\2\
---------------------------------------------------------------------------
\2\E-mail from U.S. Environmental Protection Agency staff to
Committee on Energy and Commerce, Democratic Staff (Jul. 3, 2013).
---------------------------------------------------------------------------
The majority report also says that the review requirement
was put in place in 1976, ``when the complexity and volume of
regulations was significantly less.'' This suggests that recent
increases in the complexity or volume of regulations under RCRA
have made this legislation necessary. However, the Committee
has received no evidence to support this claim. According to
the Congressional Research Service, EPA has only finalized two
actions designated as major under RCRA since 2000, and both
reduced regulatory requirements.\3\
---------------------------------------------------------------------------
\3\Congressional Research Service, Correspondence with Committee
Democratic Staff, (Jul. 8, 2013).
---------------------------------------------------------------------------
The primary effect of this provision 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.\4\ At the request of
Democratic staff, the American Law Division of the
Congressional Research Service (CRS) examined the ongoing
proceedings and court precedent and determined that the bill as
proposed would likely lead to the dismissal of the lawsuits.
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\4\House Committee on Energy and Commerce, Subcommittee on
Environment and the Economy, Testimony of Abigail Dillen, Coal Program
Director, EarthJustice, Legislative Hearing on H.R. __ the ``Federal
and State Partnership for Environmental Protection Act of 2013;'' H.R.
__, the ``Reducing Excessive Deadline Obligations Act of 2013;'' and
H.R. __, the ``Federal Facility Accountability Act of 2013.'' 113th
Cong. (May 17, 2013).
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EPA has been engaged in a rulemaking process to regulate
disposal of coal ash for several years.\5\ EPA held eight
public hearings on the proposed rule and received more than
450,000 public comments.\6\ EPA is in the process of reviewing
those comments and has not finalized the rule. Coal ash
therefore remains unregulated at the federal level. It has now
been three years since the new rule was proposed.
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\5\U.S. Environmental Protection Agency, Hazardous and Solid Waste
Management System; Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals From Electric Utilities, 75 Fed.
Reg. 35127 (June 21, 2010) (proposed rule).
\6\U.S. Environmental Protection Agency, Docket EPA-HQ-RCRA-2009-
0640.
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According to motions filed with the Court by Headwaters,
the firm has ``experienced a significant adverse market
downturn as a result of the uncertainty and stigma created by
EPA's failure to comply with Section 2002(b)'' and ``an order
requiring completion of its section 2002(b) review will redress
that injury.''\7\ These cases do not suggest that the deadline
is excessive or outdated--instead, they suggest that it is
necessary.
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\7\Case 1:12-cv-005230RBW, Appalachian Voices et al. v. Lisa P.
Jackson, Plaintiffs Headwaters Resources, Inc. and Boral Material
Technologies Inc.'s Combined Opposition to Defendant EPA's and
Intervenor-Defendants' Motion for Summary Judgment and Reply, Filed
Nov. 20, 2012.
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This bill would likely prevent the issuance of such a court
order, delaying resolution of this issue and extending this
economic injury. It would also extend the status quo of coal
ash regulation, which has proven insufficient to protect human
health and the environment.\8\
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\8\For more information on the inadequacies of current coal ash
regulation, see past memoranda prepared by the Democratic Staff of the
Committee, including the memorandum prepared for the Apr. 11, 2013
hearing entitled, H.R. __, the ``Coal Ash Recycling and Oversight Act
of 2013.''
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THE CERCLA AMENDMENT
The CERCLA deadline
H.R. 2279 amends CERCLA section 108(b) to repeal a deadline
that EPA has already satisfied. CERCLA requires EPA to
identify, by December 11, 1983, those classes of facilities for
which financial responsibility requirements should first be
developed.\9\ The requirement was put in place as part of the
1980 amendments to Superfund in response to significant
taxpayer cleanup costs.
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\9\Comprehensive Environmental Response, Compensation, and
Liability Act Sec. 108(b).
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EPA satisfied this requirement in July 2009. EPA published
a notice in the Federal Register designating hardrock mining as
the first class of facilities to be the subject of financial
responsibility requirements.\10\ The issuance of the actual
requirements is still pending and is not affected by the
deadline in section 108(b). In January 2010, EPA published an
additional notice identifying the next classes of facilities
that should be subject to such requirements. These classes were
the chemical manufacturing industry, the petroleum and coal
products manufacturing industry, and the electric power
generation, transmission, and distribution industry.
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\10\U.S. Environmental Protection Agency, Identification of
Priority Classes of Facilities for Development of CERCLA Section 108(b)
Financial Responsibility Requirements, 74 Fed. Reg. 37213 (Jul. 28,
2009) (notice).
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Hardrock mining refers to the process of extracting,
beneficiating, or processing metals and non-metallic, non-fuel
minerals. In 2011, the metal mining sector reported releasing
or disposing of 1.89 billion pounds of toxic chemicals, more
than any other industry sector and representing 46% the total
disposal or other releases for all industries.\11\ EPA
estimates that releases from hardrock mining have contaminated
at least 3,400 miles of streams and 440,000 acres of land.\12\
According to the U.S. Forest Service, acid mine drainage from
metal mining has contaminated 10,000 miles of rivers and
streams.\13\
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\11\U.S. Environmental Protection Agency, 2011 Toxic Release
Inventory National Analysis Overview (Jan. 16, 2013).
\12\U.S. Environmental Protection Agency, Identification of
Priority Classes of Facilities for Development of CERCLA Section 108(b)
Financial Responsibility Requirements, 74 Fed. Reg. 37213 (Jul. 28,
2009).
\13\Id. at 32715.
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Many hardrock mining sites are listed under CERCLA, with
many on the National Priority List (NPL). As of August 2012,
over 130 hardrock mining sites had been listed or proposed for
listing on the NPL, or designated for cleanups under Superfund
Alternative Approaches.\14\ That number will continue to grow,
as the Government Accountability Office (GAO) estimates that
there are 161,000 abandoned hardrock mines in the western
United States, of which 33,000 have degraded the
environment.\15\
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\14\U.S. Environmental Protection Agency, NPL Mining Sites (online
at www.epa.gov/aml/amlsite/npl.htm).
\15\U.S. Government Accountability Office, Hardrock Mining:
Information on Abandoned Mines and Value and Coverage of Financial
Assurances on BLM Land (Mar. 12, 2008)(GAO-08-574T).
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Because many of these sites have been abandoned, much of
the cleanup cost has been borne by the government. According to
the GAO, in the 10 fiscal years between 1998 and 2007, the
federal government spent at least $2.6 billion (in 2008
dollars) to clean up these hardrock sites. The largest portion
of that spending came from the Superfund program.\16\ GAO also
examined financial assurance requirements in place for hardrock
mines on public lands. GAO found that bond requirements imposed
by the Bureau of Land Management were insufficient to cover
expected cleanup costs, identifying an expected shortfall of
$61 million for 52 mining operations.\17\ Similarly, the EPA
Inspector General predicts that cleanup costs for the evaluated
hardrock mining sites are likely to reach $24 billion, far
exceeding appropriations for the Superfund program.\18\ These
costs are likely to fall on the taxpayer unless EPA
successfully pursues repayment from the responsible parties.
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\16\Id.
\17\Id.
\18\U.S. Environmental Protection Agency, Office of the Inspector
General, Nationwide Identification of Hardrock Mining Sites (Mar. 31,
2004).
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Based on those costs, and recommendations from GAO, EPA
began the process in 2009 of establishing financial assurance
requirements for the hardrock mining sector. EPA identified
hardrock mining as the class of facilities for which it would
develop regulations and published notice in the Federal
Register on July 28, 2009.\19\ The agency has received public
comment on the notice and is working on a proposed regulation.
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\19\U.S. Environmental Protection Agency, Identification of
Priority Classes of Facilities for Development of CERCLA Section 108(b)
Financial Responsibility Requirements, 74 Fed. Reg. 37213 (July 28,
2009).
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Now that the CERCLA deadline in section 108(b) has been
satisfied and has no legal effect, it is unclear why the
provision is being repealed. The majority report states that
this deadline is now outdated and ``no longer appropriate.''
However, CERCLA contains numerous deadlines that have been
satisfied, and yet the majority is not proposing to repeal
them. For example, section 102 of CERCLA contains three
deadlines that have all been met and are no longer in
effect.\20\
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\20\Comprehensive Environmental Response, Compensation, and
Liability Act Sec. 102, 42 U.S.C. Sec. 9602. Those requirements were
satisfied with the publication of reportable released quantities of
hazardous substances on September 29, 1986 and May 24, 1989 (51 Fed.
Reg. 34547; 54 Fed. Reg. 22538).
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The CERCLA Preemption Amendment
The question of preemption of state requirements was raised
by EPA in the Federal Register notice listing hardrock mining
as the class of facilities for which requirements would first
be established. EPA is still reviewing comments submitted on
that question, with a focus on the sufficiency of state
requirements. It is important to distinguish financial
responsibility requirements for reclamation of mining sites,
which cover the costs to restore vegetation and reshape the
land, and requirements for potential releases of contaminants
from mining activities. The most significant costs associated
with hardrock mining relate to contaminant releases from waste
piles, and are not covered by reclamation cost bonds. H.R. 2279
does not distinguish between these types of requirements.
The majority report claims that a ``significant body of
State and other Federal law currently exists that requires
facilities to provide evidence of financial responsibility.''
There is no information about that body of laws in the record
before the Committee. At the May 17, 2013, legislative hearing,
the Subcommittee heard from Carolyn Hanson, the Deputy
Executive Director of the Environmental Council of the States
(ECOS). In order to understand the need for and impact of this
amendment, Democratic members asked for information on what
requirements states have in place relating to financial
responsibility. Democratic members again requested detailed
information on those financial responsibility requirements by
letter on May 28, 2013. In response, ECOS informed Committee
staff that they do not have the requested information.
After several additional weeks, ECOS provided the Committee
with a list of states that have adopted financial
responsibility requirements, but no information about what
costs those requirements cover. The letter cites Colorado as an
example of a state with existing financial responsibility
requirements. In a letter sent to EPA to provide preliminary
input into the process of proposing financial responsibility
requirements for hardrock mining, the Colorado Attorney
General's office wrote that the state's requirements under its
Mined Land Reclamation Act ``can co-exist with CERCLA financial
assurance requirements and are not the type of financial
assurances that require preemption.''\21\
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\21\Letter from Steven M. Nagy, on behalf of the Attorney General
of Colorado, to Jim Berlow, U.S. Environmental Protection Agency (Feb.
28, 2011) U.S. Environmental Protection Agency Docket EPA-HQ-SFUND-
2009-0834-0136.
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The letter also cites Alaska as an example of a state with
existing financial responsibility requirements. According to a
letter sent to EPA by the Alaska Attorney General to provide
preliminary input on the financial responsibility requirements,
Alaska's Department of Natural Resources ``does not require
financial assurance (often referred to colloquially as
`bonding') to cover unplanned releases, or `worst-case'
scenarios.''\22\ The requirements therefore do not cover the
cleanup costs that would be covered by federal requirements
under Superfund.
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\22\Letter from Cameron M. Leonard, on behalf of the Attorney
General of Alaska, to Jim Berlow, U.S. Environmental Protection Agency
(Feb. 11, 2011) U.S. Environmental Protection Agency Docket EPA-HQ-
SFUND-2009-0834-0134.
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Despite the lack of a record before the Committee, this
bill would erect barriers to EPA issuing financial
responsibility requirements under CERCLA for the hardrock
mining industry, the chemical manufacturing industry, the
petroleum and coal products manufacturing industry, and the
electric power generation, transmission, and distribution
industry and prohibit the application of any federal financial
responsibility requirement when an owner or operator is
satisfying a state financial responsibility requirement.
The reporting requirement for explosive chemicals
An amendment to H.R. 2279 offered by Mr. Waxman during full
Committee consideration was adopted by voice vote. This
amendment addresses the serious problem of chemical facilities
failing to adequately inform emergency responders about the
flammable and explosive chemicals stored at facilities
throughout the United States. This amendment requires that
owners or operators of facilities storing flammable and
explosive chemicals over threshold amounts inform state
emergency response personnel about the types and amounts of
chemicals being stored. This amendment was informed by the
recent tragic explosion in West, Texas.
On April 17, 2013, the West Fertilizer Company storage and
distribution facility exploded. In a community of 2,600 people,
nearly 200 were injured and 15 killed. The nearby nursing home,
a school, and several hundred houses were badly damaged. The
chemical that caused the explosion, ammonium nitrate, is the
same substance that was used in the Oklahoma City bombing in
1995. Although this chemical may be safe when stored and
handled correctly, its risks are undeniable.
Twelve first responders and volunteer firefighters died in
the West, Texas explosion. The U.S. Chemical Safety Board
reported in the preliminary findings from their investigation
of the explosion that ``the volunteer firefighters were not
made aware of the explosion hazard from the [ammonium nitrate]
stored at West Fertilizer, and were caught in harm's way when
the blast occurred.''\23\
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\23\Senate Committee on Environment and Public Works, Testimony of
the Honorable Rafael Moure-Eraso, Chairperson of the U.S. Chemical
Safety Board, Hearing on Oversight of Federal Risk Management and
Emergency Planning Programs to Prevent and Address Chemical Threats,
Including the Events Leading Up to the Explosions in West, TX and
Geismar, LA, 113th Cong. (Jun. 27, 2013) (online at www.epw.senate.gov/
public/index.cfm?FuseAction=Files.View
&FileStore_id=b3617917-9853-4128-ad83-7f305f58fcb1).
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Rafael Moure-Eraso, Chairperson of the U.S. Chemical Safety
Board, stated in his testimony before the Senate Committee on
Environment and Public Works on June 27, 2013, that the storage
of ammonium nitrate fertilizer ``falls under a patchwork of
U.S. safety standards and guidance--a patchwork that has many
large holes.''\24\ This provision will address one of those
holes, and provide important information to emergency
responders.
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\24\Id.
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For the reasons stated above, we dissent from the views
expressed in the Committee's report.
Henry A. Waxman.
Paul D. Tonko.