H. Rept. 113-179 - 113th Congress (2013-2014)
July 30, 2013, As Reported by the Energy and Commerce Committee

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House Report 113-179 - REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013




[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:
<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 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\
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    \2\E-mail from U.S. Environmental Protection Agency staff to 
Committee on Energy and Commerce, Democratic Staff (Jul. 3, 2013).
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    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\
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    \3\Congressional Research Service, Correspondence with Committee 
Democratic Staff, (Jul. 8, 2013).
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    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.