CONGRESSWOMAN ELISE STEFANIK
On Thursday, January 9, 2014, the House will consider H.R. 2279, the Reducing Excessive Deadline Obligations Act of 2013, under a rule. The Rules Committee Print of H.R. 2279 also includes the text of H.R. 2226, the Federal and State Partnership for Environmental Protection Act of 2013 and H.R. 2318, the Federal Facility Accountability Act of 2013.
H.R. 2279 was introduced on June 6, 2013 by Rep. Cory Gardner (R-CO). It was marked up on June 19, 2013 by the Energy and Commerce Committee and was ordered reported, as amended, by a vote of 25-18. H.R. 2226 was introduced on June 3, 2013 by Rep. Bill Johnson (R-OH). It was marked up on June 19, 2013 by the Energy and Commerce Committee and was ordered reported, as amended, by a vote of 27-19. H.R. 2318 was introduced on June 11, 2013 by Rep. Robert Latta (R-OH). It was marked up on June 19, 2013 and was ordered reported, as amended, by a vote of 26-18.
The Rules Committee Print of H.R. 2279 combines the text of the Reducing Excessive Deadline Obligations Act of 2013 with H.R. 2226, the Federal and State Partnership for Environmental Protection Act of 2013, and H.R. 2318, the Federal Facility Accountability Act of 2013.
Title I: The Reducing Excessive Deadline Obligations Act of 2013
The Reducing Excessive Deadline Obligations Act of 2013 amends the Solid Waste Disposal Act to allow the EPA to review regulations on solid waste disposal only when necessary, instead of being required to review them every three years. The bill also removes an unnecessary deadline, which was already met, that required the President to identify classes of facilities associated with hazardous waste for which financial responsibility requirements had to be developed. Current law requires that certain facilities associated with hazardous waste establish and maintain evidence of financial responsibility consistent with the level of risk that the hazardous waste will be released.
The bill requires that the EPA—prior to developing new financial responsibility requirements—evaluate existing state and federal financial responsibility requirements to ensure that new requirements would not preempt other state or federal requirements. The bill requires the EPA to report to Congress on any new financial responsibility requirements it intends to establish under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). In addition, the bill requires facilities containing flammables or explosives to notify state emergency response commissions of the presence and amount of the materials.
Title II: The Federal and State Partnership for Environmental Protection Act of 2013
The Federal and State Partnership for Environmental Protection Act of 2013 amends CERCLA to ensure meaningful state participation in the hazardous waste cleanup process. The bill codifies existing regulation and policy that requires the EPA to consult with states when undertaking a removal action. The bill also requires the EPA to consult with states both before and during the process of selecting an appropriate remedial action. “Although states currently have a role in the investigation and evaluation process leading up to the selection of a remedy, CERCLA does not require EPA to allow states to participate in the actual selection of the remedy.”
The bill allows states to receive credit toward their 10% remedial action cost-sharing requirement for in-kind contributions such as real property, equipment, goods, and services provided for removal or remedial action.
The bill requires the President, within ninety days of revising the National Priorities List (NPL), to issue a written explanation of why a site recommended by a state was not included. The bill acknowledges that the EPA should consult states before adding or removing sites from the NPL, and generally prohibits a site from being added to the NPL over the written objection of a state.
The bill adds “state environmental covenant law” and “state law or regulation requiring the use of engineering or land use controls” to the list of state requirements that can be considered applicable or relevant and appropriate requirements (ARARs) under CERCLA. Cleanup actions permitted under CERCLA often require long-term land use controls to prevent the public’s exposure to contamination. “To ensure the long term permanence and enforceability of these requirements, many states have adopted environmental covenant laws and regulations and similar land use control requirements to enable and enforce such protections as a part of environmental remedies.” The bill prevents the EPA from failing to consider such state requirements.
Title III: The Federal Facility Accountability Act of 2013
The Federal Facility Accountability Act of 2013amends CERCLA to ensure that federal facilities are treated in the same manner as non-federal facilities under the Act. The bill explicitly applies CERCLA to facilities currently or formerly owned by the federal government, making them subject to all the same requirements as a private entity. The bill affirms the applicability of state laws, including those regarding enforcement, to removal and remedial actions at federal facilities. The bill also establishes a process for reviewing response policies created by federal agencies to which the President has delegated authority under CERCLA.
 H.R. 2279 amends the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) to clarify that owners and operators may establish financial responsibility by forms of security, including insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer.
 CERCLA authorizes two types of response actions: “removal” and “remedial.” “Removal actions tend to be shorter term actions that address more immediate risks, whereas remedial actions tend to be longer term actions that offer a more permanent solution. As such, remedial actions often entail more extensive and costly measures.” Id. at 8.
 Committee Report 113-178, Part 1 at 4.
 When a remedial action is taken and funds from the Hazardous Substance Superfund Trust Fund are used, CERCLA requires states to contribute 10% of the cost of the action, as well as all the long-term cost of operation and maintenance. CERCLA currently allows states to receive credit towards the 10% only for direct expenditures of state funds, even though states contribute to removal and remedial actions in many additional ways.
 In order to prioritize cleanup actions, CERCLA directs the EPA to establish and maintain a National Priorities List (NPL) of the most hazardous sites
The Resource Conservation and Recovery Act of 1976 (RCRA) “is the primary federal law governing the management of solid and hazardous waste. . . . EPA has primary authority to implement the federal hazardous waste program, but has developed procedures for states to become authorized to implement that program. Most states have chosen to do so.”
CERCLA was enacted “to authorize the federal government to clean up contaminated sites in the United States and to make the ‘potentially responsible parties’ connected to those sites financially liable for the cleanup costs.” CERCLA authorizes action in response to both actual and threatened releases of hazardous substances. In order to prioritize cleanup actions, CERCLA directs the EPA to establish and maintain a NPL of the most hazardous sites. “The states primarily are responsible for pursuing the cleanup of sites not listed on the NPL, with the federal role at these sites limited mainly to addressing emergency situations.”
“CERCLA established the Hazardous Substance Superfund Trust Fund to pay for the cleanup of sites where the [potentially responsible parties] cannot be found or cannot pay.” The Superfund is comprised mostly of general revenues, which are subject to appropriations. CERCLA authorizes two types of response actions: removal and remedial. “Removal actions tend to be shorter term actions that address more immediate risks, whereas remedial actions tend to be longer term actions that offer a more permanent solution. As such, remedial actions often entail more extensive and costly measures. Because of the typically greater extent and cost of remedial actions, they are subject to more in-depth review in the form of a Remedial Investigation and Feasibility Study (RI/FS). . . . Remedial actions also are subject to public participation requirements under Section 117 of CERCLA. Removal actions are not subject to a similar degree of review or public comment because of the perceived need for swifter response to address more immediate risks.”
The use of Superfund monies is permitted for emergency removal actions, regardless of whether the sites are listed on the NPL; however, such funds are only available for remedial actions when they occur at NPL sites. “[CERCLA] requires the state in which a non-federal NPL site is located to agree to share the costs of remedial actions at that site, as a condition of obligating federal Superfund monies to finance those actions. States are not responsible for sharing the costs of cleanup at sites where the potentially responsible parties pay for the cleanup, including federal facilities that are funded by the federal agencies that administer them. Rather, the federal government and the states are to share the costs of assuming the responsibility for the orphan shares of the cleanup costs, for which there are no viable parties to pursue.”
“At a site where the state must agree to share the costs of remedial actions as a condition of the obligation of federal Superfund monies, the state first must provide certain assurances of its financial commitments, specified in a binding contract or cooperative agreement with the federal government. Absent such contract or agreement, federal Superfund monies are not available to finance remedial actions at that site. To allow the obligation of federal Superfund monies to commence the remedial actions, the state must agree to pay 10% of the costs of those actions. . . .”
 Linda Luther, Background on and Implementation of the Bevill and Bentsen Exclusions in the Resource Conversation and Recovery Act: EPA Authorities to Regulate “Special Wastes,” Congressional Research Service (Aug. 6, 2013) at 2-3 (hereinafter “RCRA Report”).
 David M. Bearden, Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act, Congressional Research Service (June 14, 2012) at 1 (hereinafter “CRCLA Report”).
 This “generally excludes releases of petroleum and certain other materials covered by other federal laws.” CRCLA Report at 6.
 Id. at 7.
 Id. at Summary.
 Id. at 22.
 Id. at 8.
 Id. “This restriction is intended to reserve Superfund monies for costlier remedial actions at NPL sites that are thought to present the greatest risks.” Id.
 Id. at 9. “Notably, CERCLA does not require states to agree to share the costs of removal actions, which typically are less costly as a result of their smaller scope. Consequently, federal Superfund monies may be used to finance the entire costs of removal actions.” Id.
CBO cost estimates for H.R. 2279, H.R. 2226, and H.R. 2318, as the bills were reported by their respective committees, are provided below. According to CBO estimates,
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