H. Rept. 113-178 - 113th Congress (2013-2014)
July 30, 2013, As Reported by the Energy and Commerce Committee

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House Report 113-178 - FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013




[House Report 113-178]
[From the U.S. Government Printing Office]


113th Congress }                                        { Rept. 113-178
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                        {        Part 1

======================================================================



 
 FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION 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. 2226]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2226) to amend the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 relating to 
State consultation on removal and remedial actions, State 
concurrence with listing on the National Priorities List, and 
State credit for contributions to the removal or remedial 
action, and for other purposes, 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..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     7
Statement of General Performance Goals and Objectives............     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Earmark, Limited Tax Benefits, and Limited Tariff Benefits.......     7
Committee Cost Estimate..........................................     7
Congressional Budget Office Estimate.............................     7
Federal Mandates Statement.......................................     8
Duplication of Federal Programs..................................     9
Disclosure of Directed Rule Makings..............................     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................     9
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill, as Reported............    11
Dissenting Views.................................................    15
    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 ``Federal and State Partnership for 
Environmental Protection Act of 2013''.

SEC. 2. CONSULTATION WITH STATES.

  (a) Removal.--Section 104(a)(2) of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 
9604(a)(2)) is amended by striking ``Any removal action undertaken by 
the President under this subsection (or by any other person referred to 
in section 122) should'' and inserting ``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''.
  (b) Remedial Action.--Section 104(c)(2) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9604(c)(2)) is amended by striking ``before determining any 
appropriate remedial action'' and inserting ``during the process of 
selecting, and in selecting, any appropriate remedial action''.
  (c) Selection of Remedial Action.--Section 104(c)(4) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (42 U.S.C. 9604(c)(4)) is amended by striking ``shall select 
remedial actions'' and inserting ``shall, in consultation with the 
affected State or States, select remedial actions''.
  (d) Consultation With State and Local Officials.--Section 120(f) of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (42 U.S.C. 9620(f)) is amended--
          (1) by striking ``shall afford to'' and inserting ``shall 
        consult with'';
          (2) by inserting ``and shall provide such State and local 
        officials'' before ``the opportunity to participate in''; and
          (3) by adding at the end the following: ``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.''.

SEC. 3. STATE CREDIT FOR OTHER CONTRIBUTIONS.

  Section 104(c)(5) of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9604(c)(5)) is 
amended--
          (1) in subparagraph (A)--
                  (A) by inserting ``removal at such facility, or for'' 
                before ``remedial action''; and
                  (B) by striking ``non-Federal funds.'' and inserting 
                ``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
          (2) in subparagraph (B), by inserting ``removal or'' after 
        ``under this paragraph shall include expenses for''.

SEC. 4. STATE CONCURRENCE WITH LISTING ON THE NATIONAL PRIORITIES LIST.

  (a) Basis for Recommendation.--Section 105(a)(8)(B) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (42 U.S.C. 9605(a)(8)(B)) is amended--
          (1) by inserting ``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.'' after ``the 
        President shall consider any priorities established by the 
        States.''; and
          (2) by striking ``To the extent practicable, the highest 
        priority facilities shall be designated individually and shall 
        be referred to as'' and all that follows through the semicolon 
        at the end, and inserting ``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;''.
  (b) State Involvement.--Section 121(f)(1)(C) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9621(f)(1)(C)) is amended by striking ``deleting sites from'' 
and inserting ``adding sites to, and deleting sites from,''.

SEC. 5. STATE ENVIRONMENTAL COVENANT LAW.

  Section 121(d)(2)(A)(ii) of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9621(d)(2)(A)(ii)) 
is amended by striking ``State environmental or facility siting law'' 
and inserting ``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,''.

                          Purpose and Summary

    The legislation codifies existing policy and regulations to 
ensure that States have a meaningful role in response actions 
under the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA). It allows States to provide input 
regarding removal actions and the selection of remedial 
actions. The bill also allows States to seek in-kind credit 
toward State cost share requirements for providing goods and 
services that directly benefit removal and remedial actions. 
The legislation also authorizes States to identify a site for 
listing on the National Priorities List (NPL) every five years 
and ensures that States are able to object to the listing of 
sites to the NPL. The legislation also provides that State 
environmental covenant laws and other engineering or land use 
control laws and regulations are properly considered under 
CERCLA.

                  Background and Need for Legislation

    CERCLA is primarily implemented by the Environmental 
Protection Agency (EPA), but a direct and significant State 
role is crucial to getting contaminated facilities cleaned up. 
CERCLA requires that States contribute a portion of the cleanup 
costs for sites that will be listed on the National Priorities 
List (NPL) and requires that States be afforded the opportunity 
for ``substantial and meaningful involvement'' in the 
``initiation, development, and selection of remedial actions to 
be undertaken in that State.''
    The State role in the CERCLA process frequently includes 
conducting a preliminary assessment regarding whether a site 
poses a threat to human health and the environment and whether 
additional investigation is required. As a result of these 
preliminary evaluations, many facilities choose to conduct 
voluntary actions under other authorities, including State 
authorities. The resulting leveraging of Federal funds 
appropriated to implement the CERCLA program leads to more 
cleanups and compliance for the same or lower Federal 
investment. However, this also could lead to certain conflicts 
regarding the administration of CERCLA and State cleanup 
programs with respect to identification and prioritization of 
sites to be cleaned up. In addition, when sites are remediated 
using the Superfund, States must provide 10% of the cost of 
implementation of the remedy and the entire cost of long-term 
operation and maintenance (O&M), which may last for decades or 
longer in the case of heavily contaminated sites. The financial 
burden of the 10% cost-share and the often unknown future cost 
of the long-term O&M may present significant resource issues 
for State environmental budgets and planning. 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. EPA may select remedies that require 
significant long-term O&M instead of remedies that may have 
higher up-front costs, but less expensive O&M costs. This 
shifts a higher percentage of the overall remediation cost from 
the Federal government to the State as an unfunded Federal 
mandate. In order to minimize conflicts and maximize cleanups, 
it is critical that EPA and the States coordinate closely 
regarding the identification of facilities for listing on the 
NPL and the selection of remedies.
    CERCLA currently allows States to receive credit toward 
their 10% cost share requirement for remedial actions at NPL 
sites, but only for the actual expenditure of State funds. 
States contribute to response actions by many means other than 
direct cash contributions. State contributions may consist of 
removal actions prior to the listing of a site on the NPL, 
contribution of recyclable materials from the site, which are 
sold to help offset the cost of the remedy, personnel and 
equipment to conduct site investigation, maintenance, 
monitoring, and oversight activities. States have experienced 
mixed results in the various regions under current EPA policy 
and practice in their attempts to receive credit for these 
activities toward State cost-share requirements. The amendment 
to section 104(c)(5) will ensure that State in-kind 
contributions to CERCLA response actions are evaluated and 
credited consistently toward a State's cost-share requirements.
    CERCLA allows the use of risk-based remedies, which often 
rely on the imposition of administrative, institutional, 
engineering, or other land use controls to prevent exposure to 
contamination. These land use controls may include such 
restrictions as prohibition on the use of groundwater from a 
site, prohibition on future use of a property for residential 
or other purposes, prohibition on subsurface excavations or 
construction, and installation and maintenance of permanent 
barriers to prevent access or contact with residual 
contaminants. Generally, such restrictions are required to be 
maintained in perpetuity or at least for as long as the 
potential for exposure to the contamination exists. In order 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 amendment to section 
121(d)(2)(A)(ii) will ensure that State environmental covenant 
laws and regulations are included as applicable relevant and 
appropriate requirements (ARARs) under CERCLA.

                                Hearings

    The Subcommittee on Environment and the Economy held a 
hearing on a discussion draft entitled ``Federal and State 
Partnership for Environmental Protection Act of 2013'' on May 
17 and 22, 2013. The Subcommittee received testimony from:
          
 Carolyn Hanson, Deputy Executive Director, 
        Environmental Council of the 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 H.R. 2226, 
``Federal and State Partnership for Environmental Protection 
Act of 2013'' for full Committee consideration, without 
amendment, by a record vote of 11 yeas and 7 nays.
    On June 18 and 19, 2013, the full Committee on Energy and 
Commerce met in open markup session and considered H.R. 2226. 
During the markup, one amendment was offered by Mr. Johnson and 
was adopted by voice vote. On June 19, 2013, the Committee 
ordered H.R. 2226 favorably reported to the House, as amended, 
by a recorded vote of 27 ayes and 19 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 was one record vote taken in connection with ordering 
H.R. 2226 reported. A motion by Mr. Upton to order H.R. 2226 
reported to the House, with amendment, was agreed to by a 
record vote of 27 ayes and 19 nays. The following reflects the 
recorded votes taken during the Committee consideration:
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a legislative 
hearing and made findings that are reflected in this report.

         Statement of General Performance Goals and Objectives

    The goals and objectives of H.R. 2226 are to codify 
existing policy and clarify the current text of the statute to 
ensure that States have a meaningful role in the removal and 
remedial process under the Comprehensive Environmental 
Response, Compensation, and Liability Act.

   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. 
2226, ``Federal and State Partnership for Environmental 
Protection Act of 2013,'' would result in no new or increased 
budget authority, entitlement authority, or tax expenditures or 
revenues.

       Earmark, 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. 2226, ``Federal and State Partnership for 
Environmental Protection 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.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 10, 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. 2226, the Federal 
and State Partnership for Environmental Protection Act of 2013.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Maggie 
Morrissey and Susanne S. Mehlman.
            Sincerely,
                                         Robert A. Sunshine
                              (For Douglas W. Elmendorf, Director).
    Enclosure.

H.R. 2226--Federal and State Partnership for Environmental Protection 
        Act of 2013

    H.R. 2226 would amend the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (CERCLA) to 
clarify that the Environmental Protection Agency (EPA) should 
consult with affected states when undertaking actions to remove 
or remediate hazardous waste from the environment. H.R. 2226 
also would expand credits given toward a state's share of 
cleanup costs at remedial sites to include in-kind 
contributions made during removal actions under certain 
conditions. (Under CERCLA, a removal action is defined as a 
short-term or emergency action that may be necessary to address 
a release or threat of a release of a hazardous substance. In 
contrast, a remedial action is less time-critical and instead 
addresses long-term threats to human health and the environment 
at a site.) Under current law, states are responsible for 10 
percent of the cost of remedial actions at a site. Finally, the 
bill would prohibit EPA from listing a site on the National 
Priorities List (NPL) over the objections of the state (with a 
few exceptions) and would give greater deference to state 
priorities in the listing process. (The NPL is the list of 
hazardous waste sites eligible for cleanup under CERCLA.)
    CBO estimates that, in some cases, implementing this 
legislation could affect the pace of discretionary spending if 
priorities for cleanup activities change. However, CBO expects 
that total costs to fulfill federal responsibilities under 
CERCLA would be little changed under this legislation. Giving 
states credit for removal activities that they would have 
performed in any event could increase EPA's remedial costs. 
However, if states perform additional or more extensive removal 
actions because of the availability of the credit, the cost to 
the federal government of subsequent remedial actions could 
decrease. On balance, CBO estimates that expanding the credit 
available to states to include certain removal expenses would 
not have a significant impact on the federal budget.
    Pay-as-you-go procedures do not apply because enacting this 
bill would not affect direct spending or revenues.
    H.R. 2226 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no cost on state, local, or tribal governments.
    The CBO staff contacts for this estimate are Maggie 
Morrissey and Susanne S. Mehlman. The 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. 2226 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. 2226 
specifically directs to be completed 2 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 are 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 ``Federal and State 
Partnership for Environmental Protection Act of 2013.''

Section 2--Consultation with States

    This section amends section 104(a)(2) of CERLCA to require 
the President to consult with States in undertaking a removal 
action. The Committee acknowledges that the National 
Contingency Plan (NCP), specifically, 40 CFR 300.525, requires 
EPA to consult with a State on all removal actions to be 
conducted in the State. The Committee, however, intends to 
codify the existing regulation and policy in the statute. The 
Committee acknowledges that situations may arise in which EPA 
may need to do an emergency removal. The Committee expects that 
because of EPA's existing regulation requiring consultation 
with States on all removal actions, this statutory change will 
not change the Agency's practice of consulting with States and 
will not impede the Agency's ability to do an emergency 
removal.
    This section also amends section 104(c)(2) of CERCLA to 
require that the President consult with the affected State 
during the process of and when selecting a remedial action. The 
Committee acknowledges that current law requires EPA to consult 
with States before selecting a remedial action. The Committee 
intends that EPA consult with States throughout the entire 
process of selecting the appropriate remedial action. In order 
to effectuate that policy, this section also amends section 
104(c)(4) of CERCLA to ensure consultation with the affected 
State or States in selecting a remedial action and section 
120(f) of CERCLA to require consultation with State and local 
officials in the planning and selection of a remedial action 
for Federal facilities.

Section 3--State credit for other contributions

    This section amends section 104(c)(5) of CERCLA to credit 
States toward the 10% cost share under section 104(c)(3) for 
expenditures made for a removal action, for in-kind 
contributions such as real property, equipment, goods, and 
services provided for removal or remedial action at the 
facility, or amounts derived from materials recycled, 
recovered, or reclaimed from the facility that are used to fund 
or offset all or a portion of the cost of a removal or remedial 
action. The Committee acknowledges that CERCLA currently allows 
States credit toward the 10% cost share for direct, out-of-
pocket, non-Federal funds expended by the State. The Committee 
acknowledges that there are many ways States contribute to a 
long-term remedy that are not direct expenditures of non-
Federal funds. The Committee also acknowledges that it is a 
policy of EPA to allow for certain in-kind contributions made 
by the State if they directly benefit the CERCLA-funded 
cleanup. The Committee intends to codify the policy and allow 
States to get credit for in-kind contributions of real 
property, goods, services, equipment, and amounts derived from 
materials recycled or recovered from the facility.
    The Committee acknowledges that CERCLA limits when States 
may receive credit toward the cost share requirement to the 
time when a State expends funds for a remedial action. The 
Committee acknowledges however, that States often conduct 
removal actions that directly benefit the long-term remedial 
action and obviate or reduce a removal action by EPA. The 
Committee acknowledges that there is not a cost share 
requirement for States with respect to removal actions, and no 
such additional cost share requirement is intended by this 
legislation. However, because a State conducting a removal 
action or taking some removal-type action in advance of the 
final remedy selection lessens the potential Federal 
expenditures at the site with respect to the permanent remedy, 
the Committee intends that States receive credit toward the 10% 
cost share for the remedial action.

Section 4--State concurrence with listing on the national priorities 
        list

    This section amends section 105(a)(8)(B) of CERCLA to 
provide (1) that not later than 90 days after any revision to 
the NPL, with respect to any site recommended by a State, but 
not selected for inclusion on the NPL, the President must 
provide, in writing, to the State the basis for not including 
the site. Section 4 also strikes the concept of the ``highest 
priority facilities'' and the ``top priority among known 
response targets;'' and (2) allows States, not more than once 
every 5 years, to designate to the NPL a facility that meets 
the listing criteria. The Committee intends to codify current 
EPA policy to not list a site on the NPL over the objection of 
a State.
    This section also amends section 121(f)(1)(C) of CERCLA by 
acknowledging that EPA should seek State concurrence when 
adding sites to the NPL as well as when deleting sites from the 
NPL.

Section 5--State environmental covenant law

    This section amends section 121(d)(2)(A)(ii) of CERCLA by 
adding ``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. CERCLA 
section 121(d)(2)(A) requires that remedial actions meet any 
Federal standards, requirements, criteria, or limitations that 
are determined to be legally applicable or relevant and 
appropriate. Section 121(d)(2)(A)(ii) requires that such State 
requirements (applicable relevant and appropriate requirements 
(ARARs)) be met if they are more stringent than Federal 
requirements. Concerned that EPA and other Federal agencies 
implementing CERCLA may fail to recognize State environmental 
covenant laws and other land use control laws and regulations 
as ARARs on the purported basis that such laws and requirements 
are not ``environmental laws'' or ``facility siting laws,'' the 
Committee included the amendment to section 121(d)(2)(A)(ii) to 
address this issue. This section clarifies that such State laws 
and requirements are to be considered ARARs under CERCLA.

         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):

 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT 
OF 1980

           *       *       *       *       *       *       *


TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION

           *       *       *       *       *       *       *


                          response authorities

  Sec. 104. (a)(1) * * *
  (2) Removal Action.--[Any removal action undertaken by the 
President under this subsection (or by any other person 
referred to in section 122) should] 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.

           *       *       *       *       *       *       *

  (c)(1) * * *
  (2) The President shall consult with the affected State or 
States [before determining any appropriate remedial action] 
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.

           *       *       *       *       *       *       *

  (4) Selection of Remedial Action.--The President [shall 
select remedial actions] 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).
  (5) State Credits.--
          (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.] 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.
          (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--
                  (i) * * *

           *       *       *       *       *       *       *


                       national contingency plan

  Sec. 105. (a) Revision and Republication.--Within one hundred 
and eighty days after the enactment of this Act, the President 
shall, after notice and opportunity for public comments, revise 
and republish the national contingency plan for the removal of 
oil and hazardous substances, originally prepared and published 
pursuant to section 311 of the Federal Water Pollution Control 
Act, to reflect and effectuate the responsibilities and powers 
created by this Act, in addition to those matters specified in 
section 311(c)(2). Such revision shall include a section of the 
plan to be known as the national hazardous substance response 
plan which shall establish procedures and standards for 
responding to releases of hazardous substances, pollutants, and 
contaminants, which shall include at a minimum:
          (1) * * *

           *       *       *       *       *       *       *

          (8)(A) * * *
          (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;] 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;

           *       *       *       *       *       *       *


SEC. 120. FEDERAL FACILITIES.

  (a) * * *

           *       *       *       *       *       *       *

  (f) State and Local Participation.--The Administrator and 
each department, agency, or instrumentality responsible for 
compliance with this section [shall afford to] 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.

           *       *       *       *       *       *       *


SEC. 121. CLEANUP STANDARDS.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Degree of Cleanup.--(1) * * *
  (2)(A) With respect to any hazardous substance, pollutant or 
contaminant that will remain onsite, if--
          (i) * * *
          (ii) any promulgated standard, requirement, criteria, 
        or limitation under a [State environmental or facility 
        siting law] 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,

           *       *       *       *       *       *       *

  (f) State Involvement.--(1) The President shall promulgate 
regulations providing for substantial and meaningful 
involvement by each State in initiation, development, and 
selection of remedial actions to be undertaken in that State. 
The regulations, at a minimum, shall include each of the 
following:
          (A) * * *

           *       *       *       *       *       *       *

          (C) State concurrence in [deleting sites from] adding 
        sites to, and deleting sites from, the National 
        Priorities List.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    The Federal and State Partnership for Environmental 
Protection Act is not based on an oversight record before the 
Committee and has not been endorsed by stakeholders. It is 
therefore unclear what issue the bill is intended to address. 
According to the majority's report, the bill ``codifies 
existing policy and regulations to ensure that States have a 
meaningful role in response actions'' under Comprehensive 
Environmental Response, Compensation, and Liability Act 
(CERCLA, the Superfund statute). But the Superfund statute 
already explicitly requires a meaningful role for states, and 
in fact, states participate in every stage of Superfund 
cleanups.
    This legislation would make the following significant 
changes to current law:
          
 Shift the balance of cleanup costs between 
        states and the Environmental Protection Agency (EPA) by 
        allowing states to count costs of removal actions, 
        which are calculated separate from response actions, 
        and ``in kind contributions'' towards their 10% 
        contribution to response actions at national priority 
        list (NPL) sites.\1\
---------------------------------------------------------------------------
    \1\H.R. 2226, the ``Federal and State Partnership for Environmental 
Protection Act of 2013'' at Sec. 3.
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 Allow states to force listing of a site on 
        the NPL once every five years, increased from one time 
        over the life of the program under the existing law, 
        potentially significantly increasing the inventory of 
        sites to be cleaned up with federal funds.\2\
---------------------------------------------------------------------------
    \2\Id. at Sec. 4(a)(2).
---------------------------------------------------------------------------
          
 Rewrite established terminology relating to 
        state consultation with undefined terms.\3\
---------------------------------------------------------------------------
    \3\See, e.g., id. at Sec. 2(d).
---------------------------------------------------------------------------
          
 Allow states to collect attorneys' fees and 
        oversight costs from the federal funds designated for 
        cleanups.
          
 Require consultation with states before 
        removal actions, the short-term actions taken to 
        address serious immediate threats, potentially delaying 
        important actions to protect public health.\4\
---------------------------------------------------------------------------
    \4\Id. at Sec. 2(a).
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    This bill has been presented as correcting a problem where 
states are not sufficiently consulted in the decisions to clean 
up contaminated sites through the Superfund program.
    At the May 22, 2013, hearing on this bill, the Subcommittee 
on Environment and the Economy heard that states currently have 
extensive opportunities to be involved in clean up decisions 
under current law.\5\ The Subcommittee also heard that, if a 
state wants complete control over the clean-up of a 
contaminated site, the state can simply conduct its own clean-
up under state law and retain full control of all decisions.\6\ 
The question presented in this bill is how much control should 
be given to states over federal funds that are needed 
nationwide to clean up the highest priority sites first. The 
Superfund program is an essential public health program with a 
national scope. If one state is empowered by this legislation 
to monopolize more of the federal Superfund, by adding more 
sites to the NPL, demanding costlier remedies, and recovering 
attorneys' fees, the result will be delays or postponements of 
needed cleanups in other states.
---------------------------------------------------------------------------
    \5\House Committee on Energy and Commerce, Subcommittee on 
Environment and the Economy, 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 22, 2013).
    \6\Id.
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                              COST SHARING

    Under Superfund, there is a cost-share in place between 
states and the federal government for response actions. The 
federal government pays 90% of the costs and the state pays 
just 10%. For short-term removal actions, the law is even more 
generous to the states. When the federal government carries out 
a removal action, it is paid for completely with federal funds.
    This bill would allow states to get credit towards their 
10% share of response costs for in-kind contributions and funds 
spent on removal actions if the state undertakes those 
actions.\7\ This allowance amounts to a shift in the cost-share 
between the state and the federal government, because EPA is 
not allowed the same credit for the same expenditures. The 
result is likely to be less funding available for cleanups.
---------------------------------------------------------------------------
    \7\H.R. 2226, the ``Federal and State Partnership for Environmental 
Protection Act of 2013'' Sec. 3.
---------------------------------------------------------------------------

                 STATE PARTICIPATION UNDER CURRENT LAW

    Even though Superfund is a federal program, paid for out of 
the general fund, the law provides for significant state 
involvement. Under the statute as it currently stands, EPA is 
required to provide ``substantial and meaningful 
participation'' to states.\8\
---------------------------------------------------------------------------
    \8\Comprehensive Environmental Response, Compensation, and 
Liability Act Sec. 121, 42 U.S.C. Sec. 9 621; Congressional Research 
Service, Comprehensive Environmental Response, Compensation, and 
Liability Act: A summary of Superfund Cleanup Authorities and Related 
provisions of the Act, at 11 (Jun. 14, 2012)(R41039).
---------------------------------------------------------------------------
    Under that provision, states are already involved in 
suggesting sites for cleanup under Superfund. EPA already seeks 
concurrence from states before slating a site for clean up on 
the National Priority List. And states can already block EPA 
from carrying out a selected response action, by not agreeing 
to pay the cost-share for that response action.
    If a state wants to take more of a leadership role at a 
Superfund site, under current law, they already have the 
ability to assume the lead under cooperative agreements with 
EPA.
    This bill would allow states to override potential concerns 
of the federal government, forcing or vetoing the placement of 
a site on the National Priorities List. Because sites on the 
NPL are eligible for funding from public coffers, the result of 
this could be less funding available for cleanups that are 
national priorities in terms of the risk posed to public health 
and the environment.

                           CLEANUP STANDARDS

    As amended during the full Committee markup, this bill now 
says that state engineering and land use control requirements 
should be mandatory cleanup standards under subsection (d) of 
section 121 of Superfund. But those requirements already apply 
under subsection (f), with clear and well-understood processes. 
It is unclear how this new language would interact with the 
existing language, whether it is necessary, or what it is 
trying to achieve.
    Response actions are chosen under Superfund in keeping with 
statutory requirements and the National Contingency Plan (NCP). 
Among other things, the NCP provides that, in situations where 
two response actions provide the same level of protection to 
public health and the environment, the less costly response 
action should be implemented (although the statute and the NCP 
express a preference for permanent removal response actions 
over capping contamination in place). Section 121(f) of 
Superfund therefore provides a waiver process, whereby the 
federal government can decide that a state requirement does not 
provide greater protection to public health and the environment 
and therefore not apply that requirement. It appears that this 
bill would eliminate that waiver, allowing states to force more 
expensive response actions without a greater benefit to public 
health or the environment. The result is likely to be less 
funding available for other cleanups.

                       DELAYS IN REMOVAL ACTIONS

    At the May 17, 2013, hearing on this bill, the Subcommittee 
heard that removal actions are generally short-term actions 
taken to address immediate threats.\9\ These actions are often 
taken at the request of state government officials. When 
Superfund was adopted, removal actions were distinguished from 
the longer-term response actions and given a more streamlined 
process, so that they could be carried out in a timely manner. 
This bill would change that approach, requiring consultation 
before removal actions can occur. The result will likely be 
greater exposure to contamination as necessary actions are 
delayed.
---------------------------------------------------------------------------
    \9\Id.
---------------------------------------------------------------------------

                               CONCLUSION

    Superfund is an essential public health program, and one 
that is intended to protect people nationwide. The National 
Priority List and National Contingency Plan have been carefully 
crafted to balance needs across the country and ensure that 
funds go to clean up the most contaminated sites first. This 
bill would undermine that national priority scheme, allowing 
states to withdraw more federal taxpayer funds than their need 
supports. This bill does not reflect the deliberate and careful 
approach that should be taken in amending a very successful and 
important public health program.
    For the reasons stated above, we dissent from the views 
expressed in the Committee's report.

                                   Henry A. Waxman.
                                   Paul D. Tonko.