H. Rept. 113-180 - 113th Congress (2013-2014)
July 30, 2013, As Reported by the Energy and Commerce Committee

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House Report 113-180 - FEDERAL FACILITY ACCOUNTABILITY ACT OF 2013




[House Report 113-180]
[From the U.S. Government Publishing Office]


113th Congress                                            Rept. 113-180
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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



 
              FEDERAL FACILITY ACCOUNTABILITY 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. 2318]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2318) to amend the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 with respect 
to the applicability of the Act to Federal facilities, 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.........................................................     5
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
Earmarks, Limited Tax Benefits, and Limited Tariff Benefits......     7
Committee Cost Estimate..........................................     7
Congressional Budget Office Estimate.............................     7
Federal Mandates Statement.......................................    10
Duplication of Federal Programs..................................    10
Disclosure of Directed Rule Makings..............................    10
Advisory Committee Statement.....................................    10
Applicability to Legislative Branch..............................    10
Section-by-Section Analysis of the Legislation...................    10
Changes in Existing Law Made by the Bill, as Reported............    12
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 Facility Accountability Act of 
2013''.

SEC. 2. FEDERAL FACILITIES.

  (a) Application to Federal Government.--Section 120(a) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (42 U.S.C. 9620(a)) is amended in the heading by striking ``of 
Act''.
  (b) Application of Requirements to Federal Facilities.--Section 
120(a)(2) of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (42 U.S.C. 9620(a)(2)) is amended--
          (1) by striking ``preliminary assessments'' and inserting 
        ``response actions'';
          (2) by inserting ``or'' after ``National Contingency Plan,'';
          (3) by striking ``, or applicable to remedial actions at such 
        facilities''; and
          (4) by inserting ``or have been'' before ``owned or 
        operated''.
  (c) Applicability of Laws.--Section 120(a)(4) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9620(a)(4)) is amended to read as follows:
          ``(4) Applicability of laws.--
                  ``(A) In general.--Each department, agency, and 
                instrumentality of the United States shall be subject 
                to, and comply with, at facilities that are or have 
                been owned or operated by any such department, agency, 
                or instrumentality, State substantive and procedural 
                requirements regarding response relating to hazardous 
                substances or pollutants or contaminants, including 
                State hazardous waste requirements, in the same manner 
                and to the same extent as any nongovernmental entity.
                  ``(B) Compliance.--
                          ``(i) In general.--The United States hereby 
                        expressly waives any immunity otherwise 
                        applicable to the United States with respect to 
                        any State substantive or procedural requirement 
                        referred to in subparagraph (A).
                          ``(ii) Injunctive relief.--Neither the United 
                        States, nor any agent, employee, nor officer 
                        thereof, shall be immune or exempt from any 
                        process or sanction of any State or Federal 
                        Court with respect to the enforcement of any 
                        injunctive relief under subparagraph (C)(ii).
                          ``(iii) Civil penalties.--No agent, employee, 
                        or officer of the United States shall be 
                        personally liable for any civil penalty under 
                        any State substantive or procedural requirement 
                        referred to in subparagraph (A), or this Act, 
                        with respect to any act or omission within the 
                        scope of the official duties of the agent, 
                        employee, or officer.
                  ``(C) Substantive and procedural requirements.--The 
                State substantive and procedural requirements referred 
                to in subparagraph (A) include--
                          ``(i) administrative orders;
                          ``(ii) injunctive relief;
                          ``(iii) civil and administrative penalties 
                        and fines, regardless of whether such penalties 
                        or fines are punitive or coercive in nature or 
                        are imposed for isolated, intermittent, or 
                        continuing violations;
                          ``(iv) reasonable service charges or 
                        oversight costs; and
                          ``(v) laws or regulations requiring the 
                        imposition and maintenance of engineering or 
                        land use controls.
                  ``(D) Reasonable service charges or oversight 
                costs.--The reasonable service charges or oversight 
                costs referred to in subparagraph (C) include fees or 
                charges assessed in connection with--
                          ``(i) the processing, issuance, renewal, or 
                        modification of permits;
                          ``(ii) the review of plans, reports, studies, 
                        and other documents;
                          ``(iii) attorney's fees;
                          ``(iv) inspection and monitoring of 
                        facilities or vessels; and
                          ``(v) any other nondiscriminatory charges 
                        that are assessed in connection with a State 
                        requirement regarding response relating to 
                        hazardous substances or pollutants or 
                        contaminants.''.

SEC. 3. AUTHORITY TO DELEGATE, ISSUE REGULATIONS.

  Section 115 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9615) is amended by 
adding at the end the following new sentence: ``If the President 
delegates or assigns any duties or powers under this section to a 
department, agency, or instrumentality of the United States other than 
the Administrator, the Administrator may review, as the Administrator 
determines necessary or upon request of any State, actions taken, or 
regulations promulgated, pursuant to such delegation or assignment, for 
purposes of ensuring consistency with the guidelines, rules, 
regulations, or criteria established by the Administrator under this 
title.''.

                          Purpose and Summary

    This legislation is intended to ensure greater compliance 
by Federal facilities with requirements of the Comprehensive 
Environmental Response Compensation and Liability Act (CERCLA) 
for addressing releases of hazardous substances. The bill 
accomplishes this by reaffirming the original intent of CERCLA 
that: (1) each department, agency, and instrumentality of the 
United States shall be subject to and comply with the Act in 
the same manner and to the same extent, both procedurally and 
substantively, as any nongovernmental entity, and (2) that 
State laws concerning removal and remedial action, including 
State laws regarding enforcement, shall apply to removal or 
remedial action at facilities owned or operated by a 
department, agency, instrumentality of the United States. To 
further reaffirm the original intent of CERCLA, which applies 
to current and former private owners and operators, the 
legislation explicitly provides that all Federal facilities, 
currently or formerly owned by the United States, are subject 
to all the same substantive and procedural requirements, 
including enforcement requirements and sanctions, as any 
private entity. The legislation also provides for review of the 
response policies, guidance, and procedures established by 
Federal agencies that are operating pursuant to the 
Presidential delegation of response authority under CERCLA.

                  Background and Need for Legislation

    Federal facilities should be held to the same environmental 
standards that apply to non-Federal facilities. Federal 
Government facilities comprise a significant number of the 
sites being cleaned up under CERCLA and include some of the 
most contaminated sites in the country.
    Legal responsibility for cleanup of Federal facilities 
stems from a variety of sources, including section 120 of 
CERCLA. Section 120 of CERCLA requires that Federal agencies be 
subject to, and comply with, CERCLA in the same manner and to 
the same extent, both procedurally and substantively, as any 
nongovernmental entity. Section 120 further specifies that 
State laws concerning removal and remedial action, including 
State laws regarding enforcement, shall apply to removal and 
remedial action at facilities owned or operated by a 
department, agency, or instrumentality of the United States. It 
is clear that Congress intended Federal facilities conducting 
response actions under CERCLA to be on an equal footing with 
non-Federal entities. However, waivers of sovereign immunity 
are strictly construed by Courts, and ambiguities are resolved 
in favor of the sovereign. The Federal Government has asserted 
that it should not be subject to administrative and civil fines 
and penalties under solid and hazardous waste law because of 
the doctrine of ``sovereign immunity.'' In several district 
court cases, the Justice Department, representing Federal 
agencies, successfully opposed State hazardous waste 
enforcement actions seeking civil penalties against Federal 
facilities because section 6001 did not clearly and 
unambiguously waive United States' sovereign immunity.\1\ The 
State of Ohio challenged the Federal Government's claim of 
sovereign immunity in Ohio v. The Department of Energy (DOE). 
In this case, the U.S. Circuit Court of Appeals found in favor 
of the State of Ohio (June 11, 1990), stating that the Federal 
Government's sovereign immunity was waived under both the Clean 
Water Act's (CWA's) sovereign immunity provision and the 
Resource Conservation and Recovery Act's (RCRA's) citizen suit 
provision (although not RCRA's sovereign immunity provision). 
The Circuit Court's decision was overturned by the U.S. Supreme 
Court on April 21, 1992. The Supreme Court held that the waiver 
of sovereign immunity in RCRA and CWA was not clear enough to 
allow states to impose civil penalties directly. After the 
Supreme Court's decision, the consensus among lawmakers was 
that there was a double standard in the United States by which 
the same government that developed laws to protect human health 
and the environment, and required compliance in the private 
sector, was itself not assuming the burden of compliance. In 
response, Congress passed the Federal Facilities Compliance Act 
in 1992, which amended the waiver of sovereign immunity in the 
Solid Waste Disposal Act to specifically identify the State 
substantive and procedural requirements applicable to Federal 
facilities.
---------------------------------------------------------------------------
    \1\See M.E.S.S. v. Navy, 655 F. Supp. 601 (E.D. Cal. 1986); Myer v. 
Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986); United States v. State 
of Washington, (E.D. Wash. Jan 22, 1988), aff'd 872 F.2d 874 (9th Cir. 
1989); California v. United States, Civ. No. S-86-190 (E.D. Cal. April 
18m 1988); California v. Walters, 751 F.2d 977 (9th Cir. 1984).
---------------------------------------------------------------------------
    Similarly, the waiver of sovereign immunity in section 120 
of CERCLA has been narrowly interpreted by Courts. 
Specifically, courts have found that the waiver only applies to 
facilities currently owned by the Federal Government.\2\ The 
Committee recognizes that there is no such limitation on 
liability for non-Federal parties and that such a distinction 
is contrary to Congress' intent that requirements under CERCLA 
and State law apply to the Federal government in the same 
manner as non-Federal facilities. H.R. 2318 is necessary to 
clarify the existing statutory language and to reaffirm the 
original intent of Congress that CERCLA waived the sovereign 
immunity of the United States with respect to State substantive 
and procedural requirements relating to hazardous substances, 
pollutants, or contaminants, including State hazardous waste 
requirements.
---------------------------------------------------------------------------
    \2\See Miami-Dade County v. United States, 345 F.Supp. 2d 1319 
(S.D. Fla. 2004) (holding that under section 120(a) the United States 
is not a current owner or operator of the facility and therefore, the 
United States has not waived sovereign immunity to suit under state law 
or the County Code); State of Maine v. Department of Navy, 973 F.2d 
1007 (1st Cir. 1992) (holding that the waiver of sovereign immunity 
under CERCLA, in particular the phrase ``state laws regarding 
enforcement,'' was ambiguous so sovereign immunity was not waived with 
respect to civil penalties); Redland Soccer Club, Inc. v. Army, 801 
F.Supp. 1432 (M.D. Pa. 1992) (finding that CERCLA section 120(a)(4) is 
written in the present tense signifying that facilities must be 
currently owned or operated for the waiver to apply).
---------------------------------------------------------------------------
    The principle laws governing hazardous waste cleanup at 
Federal facilities are RCRA and CERCLA. RCRA regulates the day-
to-day management of hazardous wastes, as well as the cleanup 
of contamination at facilities where such wastes are or were 
treated, stored, or disposed of. CERCLA also requires cleanup 
of hazardous substances at contaminated facilities. The 
language of H.R. 2318 is almost identical to that of the 
Federal Facilities Compliance Act of 1992, which amended RCRA, 
because the Committee acknowledges the similarity between the 
two cleanup programs and intends to ensure legislative 
consistency in addressing similar issues related to the waiver 
of sovereign immunity. The Committee believes that the 
authority to properly enforce Federal facility compliance with 
State substantive and procedural requirements regarding 
response relating to hazardous substances or pollutants or 
contaminants, including State hazardous waste requirements, is 
essential to the CERCLA cleanup process. State program 
officials in all areas of the country have underscored the need 
for this legislation.

                                Hearings

    The Subcommittee on Environment and the Economy held a 
hearing entitled ``Discussion Draft, the Federal Facility 
Accountability 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 H.R. 2318 
for full Committee for consideration, without amendment, by 
voice vote.
    On June 18 and 19, 2013, the full Committee on Energy and 
Commerce met in open markup session and considered H.R. 2318. 
During the markup, one amendment was offered by Mr. Latta and 
was adopted by voice vote. On June 19, 2013, the Committee 
ordered H.R. 2318 favorably reported to the House, as amended, 
by a record vote of 26 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 was one record vote taken in connection with ordering 
H.R. 2318 reported. A motion made by Mr. Upton to order H.R. 
2318 reported to the House, as amended, was agreed to by a 
record vote of 26 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 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. 2318 are to clarify that 
the waiver of sovereign immunity in CERCLA applies to both 
current and formerly owned Federal facilities and that Federal 
facilities must comply with substantive and procedural 
requirements of State law relating to hazardous substances or 
pollutants or contaminants, including State hazardous waste 
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. 
2318, the Federal Facilities Accountability Act, 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. 2318, the Federal Facilities Accountability 
Act, 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.

                                                     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. 2318, the Federal 
Facility Accountability 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. 2318--Federal Facility Accountability Act of 2013

    Summary: H.R. 2318 would amend the Comprehensive 
Environmental Response, Compensation, and Liability Act 
(CERCLA) as it relates to federal facilities. Under the bill, 
federal agencies would be required to comply with state 
requirements when conducting response actions under CERCLA at 
federal facilities or facilities formerly owned by the federal 
government. H.R. 2318 also would explicitly waive the federal 
government's sovereign immunity from administrative orders, 
injunctive relief, and civil and administrative penalties 
issued by states under CERCLA. In addition, the bill would 
permit states to charge federal agencies for costs associated 
with permitting, document review, inspections, and other 
activities related to a state's response actions at hazardous 
sites. Finally, H.R. 2318 would authorize the Environmental 
Protection Agency (EPA) to review actions taken by other 
federal agencies under CERCLA.
    CBO estimates that enacting this legislation could increase 
the pace of discretionary spending to the extent that federal 
agencies accelerate spending related to cleanup activities or 
pay additional fines and penalties imposed by states. However, 
CBO expects that aggregate, long-term costs to fulfill federal 
responsibilities under CERCLA would be little changed under the 
legislation.
    In addition, H.R. 2318 could increase direct spending to 
the extent that fines and penalties were paid from the 
Treasury's Judgment Fund. However, CBO expects that any 
incremental spending from that fund would probably be 
insignificant. Because the bill would affect direct spending, 
pay-as-you-go procedures apply; however, CBO estimates that any 
additional direct spending over the 2014-2023 period would be 
insignificant.
    H.R. 2318 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: For this 
estimate, CBO assumes that the legislation will be enacted near 
the end of 2013.

Direct spending

    According to information from federal agencies and state 
representatives, federal agencies are not usually assessed 
penalties and fines by states under CERCLA. Enacting this 
legislation would explicitly waive any federal immunity from 
administrative orders or civil or administrative penalties 
assessed by states under that act. This waiver also would 
include former federal facilities and federal facilities that 
are on the National Priorities List (NPL). (The NPL is the list 
of hazardous waste sites eligible for cleanup under CERCLA.) 
Thus, CBO anticipates that states could use this new authority 
to prompt more rapid federal action at certain sites, and 
federal agencies could increase the pace of compliance spending 
to avoid fines and penalties.
    It is also possible that fines and penalties would be paid 
from the government's Judgment Fund if payment was not 
otherwise provided for in appropriated funds. This fund has a 
permanent, open-ended appropriation that may be used under 
certain conditions without further appropriation. Historically, 
though, most fines related to environmental violations for 
which the federal agency agrees to pay the fine or penalty as 
an administrative matter have been paid from appropriated 
funds. CBO estimates that any incremental spending from the 
Judgment Fund resulting from enactment of H.R. 2318 would be 
insignificant.

Spending subject to appropriation

    Enacting this legislation would not fundamentally change 
the federal government's responsibility to comply with CERCLA. 
According to the latest Financial Report of the United States, 
the federal government's current environmental remediation and 
waste disposal liabilities exceed $300 billion (under all 
environmental laws). Under current law, federal agencies, in 
particular the Departments of Defense and Energy, currently 
spend billions of dollars each year conducting cleanup 
activities under CERCLA, including reimbursements to state 
agencies for related services they provide. Based on 
information from federal agencies and industry representatives, 
CBO expects that enacting this legislation could induce federal 
agencies to accelerate their compliance activities at some 
facilities possibly changing the timing of funding requests for 
certain projects. As a result, H.R. 2318 might lead to greater 
compliance costs for federal facilities for the years 
immediately following enactment (if the necessary 
appropriations were provided for those years), but the total 
long-term cost of compliance would not change substantially.
    CBO estimates that any additional penalties and fines 
imposed on federal agencies under H.R. 2318 would not be 
significant. Limited historical data suggest that such 
penalties are small. For example, according to a recent report 
from the Department of Defense (DoD), over the 2006-2010 
period, DoD paid an average of $1 million a year in penalties 
and fines assessed by states under several federal 
environmental laws.
    Enacting this legislation also would clarify that federal 
facilities are subject to reasonable service charges assessed 
in connection with state programs. Because most federal 
agencies already pay administrative service charges and fees to 
states, CBO does not expect that this provision would 
significantly increase costs. Based on information from EPA, 
CBO estimates that EPA would spend less than $500,000 annually 
over the 2014-2018 period to review additional actions taken by 
other federal agencies under CERCLA.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. CBO estimates that this legislation would not have a 
significant impact on direct spending and would have no effect 
on revenues.
    Intergovernmental and private-sector impact: H.R. 2318 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal spending: Susanne S. Mehlman; 
Impact on state, local, and tribal governments: J'nell Blanco; 
Impact on the private sector: Amy Petz.
    Estimate 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. 2318 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. 2318 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 ``Federal Facility 
Accountability Act of 2013.''

Section 2--Federal facilities

    This section amends section 120(a) of CERCLA to strike 
``the Act'' and indicate that requirements other than those in 
CERCLA apply to the Federal government.
    This section also amends section 120(a)(2) of CERCLA by 
making the guidelines, rules, regulations, and criteria 
applicable to response actions for facilities at which 
hazardous substances are located applicable to facilities 
currently or formerly owned or operated by the United States in 
the same manner and to the extent that they are applicable to 
other facilities. The Committee acknowledges that CERCLA 
applies to current and formerly owned or operated non-Federal 
facilities. The Committee intends that CERCLA apply to Federal 
facilities in the same manner and that formerly owned 
facilities also be subject to the waiver of sovereign immunity.
    This section amends section 120(a)(4) of CERCLA by adding 
the requirement that Federal facilities comply with State 
substantive and procedural requirements regarding response, 
containment, and remediation relating to hazardous substances 
in the same manner as any nongovernmental entity. This section 
also amends 120(a)(4) by adding an express waiver of sovereign 
immunity with respect to State substantive or procedural 
requirements and provides that neither the United States nor 
any agent, employee, or officer shall be immune or exempt from 
injunctive relief. This section specifies that no agent, 
employee, or officer of the United States shall be personally 
liable for any civil penalties under any State substantive or 
procedural requirements or CERCLA with respect to any act or 
omission within the scope of the official duties. This section 
also provides that Federal facilities are subject to State 
substantive and procedural requirements, including 
administrative orders, injunctive relief, civil fines and 
penalties, reasonable service charges or oversight costs, and 
laws or regulations requiring the imposition and maintenance of 
engineering or land use controls. Reasonable service charges or 
oversight costs are defined by this section to include fees or 
charges assessed in connection with (i) processing/issuing/
renewing/modifying permits; (ii) review of plans, reports, 
studies, and other documents; (iii) attorney's fees; (iv) 
inspection and monitoring of facilities or vessels; and (v) any 
other nondiscriminatory charges that are assessed in connection 
with a State requirement regarding response, containment, and 
remediation related to hazardous substances. The Committee 
intends that Federal facilities comply with the specified list 
of State substantive and procedural requirements in the same 
manner as private entities engaged in a CERCLA cleanup. In 
providing for the payment by Federal facilities of ``reasonable 
service charges'' or ``oversight costs,'' the Committee intends 
that Federal agencies pay the fees and charges that other 
persons are subject to under State law regarding response 
relating to hazardous substances, pollutants, or contaminants, 
including State hazardous waste requirements. By limiting fees 
and charges to those which are ``nondiscriminatory,'' the 
Committee intends that Federal facilities not be singled out 
for payment on the basis of their status as Federal entities. 
The Committee does not, however, intend that each fee or 
assessment be scrutinized to determine whether the Federal 
government is treated in exactly the same manner as non-Federal 
entities. The Committee recognizes that unique features of 
Federal facilities may make a direct comparison inapplicable. 
The Committee intends that the Federal government pay the fees, 
charges, and oversight costs that are regularly assessed in 
connection with State law regarding response relating to 
hazardous substances or pollutants or contaminants, including 
State hazardous waste requirements.

Section 3--Authority to delegate, issue regulations

    This section amends section 115 of CERCLA to allow EPA to 
review (or a State to request review by EPA) actions taken 
pursuant to any duties or powers delegated or assigned by the 
President to a department, agency, or instrumentality of the 
United States other than EPA, to ensure consistency of the 
action with the guidelines, rules, regulations, or criteria 
established by EPA under Title I of CERCLA. The Committee 
acknowledges that under section 115 of CERCLA, the President 
may delegate authority to carry out CERCLA and acknowledges 
that the President has done so through Executive Order 12580. 
The Committee intends that with respect to authority delegated 
to Federal entities under Executive Order 12580, that EPA be 
authorized to review such actions to ensure that they are 
consistent with EPA guidelines, rules, regulations, or 
criteria.

         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

           *       *       *       *       *       *       *


                authority to delegate, issue regulations

  Sec. 115. The President is authorized to delegate and assign 
any duties or powers imposed upon or assigned to him and to 
promulgate any regulations necessary to carry out the 
provisions of this title. If the President delegates or assigns 
any duties or powers under this section to a department, 
agency, or instrumentality of the United States other than the 
Administrator, the Administrator may review, as the 
Administrator determines necessary or upon request of any 
State, actions taken, or regulations promulgated, pursuant to 
such delegation or assignment, for purposes of ensuring 
consistency with the guidelines, rules, regulations, or 
criteria established by the Administrator under this title.

           *       *       *       *       *       *       *


SEC. 120. FEDERAL FACILITIES.

  (a) Application [of Act] to Federal Government.--
          (1) * * *
          (2) Application of requirements to federal 
        facilities.--All guidelines, rules, regulations, and 
        criteria which are applicable to [preliminary 
        assessments] response actions carried out under this 
        Act for facilities at which hazardous substances are 
        located, applicable to evaluations of such facilities 
        under the National Contingency Plan, or applicable to 
        inclusion on the National Priorities List[, or 
        applicable to remedial actions at such facilities] 
        shall also be applicable to facilities which are or 
        have been owned or operated by a department, agency, or 
        instrumentality of the United States in the same manner 
        and to the extent as such guidelines, rules, 
        regulations, and criteria are applicable to other 
        facilities. No department, agency, or instrumentality 
        of the United States may adopt or utilize any such 
        guidelines, rules, regulations, or criteria which are 
        inconsistent with the guidelines, rules, regulations, 
        and criteria established by the Administrator under 
        this Act.

           *       *       *       *       *       *       *

          [(4) State laws.--State laws concerning removal and 
        remedial action, including State laws regarding 
        enforcement, shall apply to removal and remedial action 
        at facilities owned or operated by a department, 
        agency, or instrumentality of the United States or 
        facilities that are the subject of a deferral under 
        subsection (h)(3)(C) when such facilities are not 
        included on the National Priorities List. The preceding 
        sentence shall not apply to the extent a State law 
        would apply any standard or requirement to such 
        facilities which is more stringent than the standards 
        and requirements applicable to facilities which are not 
        owned or operated by any such department, agency, or 
        instrumentality.]
          (4) Applicability of laws.--
                  (A) In general.--Each department, agency, and 
                instrumentality of the United States shall be 
                subject to, and comply with, at facilities that 
                are or have been owned or operated by any such 
                department, agency, or instrumentality, State 
                substantive and procedural requirements 
                regarding response relating to hazardous 
                substances or pollutants or contaminants, 
                including State hazardous waste requirements, 
                in the same manner and to the same extent as 
                any nongovernmental entity.
                  (B) Compliance.--
                          (i) In general.--The United States 
                        hereby expressly waives any immunity 
                        otherwise applicable to the United 
                        States with respect to any State 
                        substantive or procedural requirement 
                        referred to in subparagraph (A).
                          (ii) Injunctive relief.--Neither the 
                        United States, nor any agent, employee, 
                        nor officer thereof, shall be immune or 
                        exempt from any process or sanction of 
                        any State or Federal Court with respect 
                        to the enforcement of any injunctive 
                        relief under subparagraph (C)(ii).
                          (iii) Civil penalties.--No agent, 
                        employee, or officer of the United 
                        States shall be personally liable for 
                        any civil penalty under any State 
                        substantive or procedural requirement 
                        referred to in subparagraph (A), or 
                        this Act, with respect to any act or 
                        omission within the scope of the 
                        official duties of the agent, employee, 
                        or officer.
                  (C) Substantive and procedural 
                requirements.--The State substantive and 
                procedural requirements referred to in 
                subparagraph (A) include--
                          (i) administrative orders;
                          (ii) injunctive relief;
                          (iii) civil and administrative 
                        penalties and fines, regardless of 
                        whether such penalties or fines are 
                        punitive or coercive in nature or are 
                        imposed for isolated, intermittent, or 
                        continuing violations;
                          (iv) reasonable service charges or 
                        oversight costs; and
                          (v) laws or regulations requiring the 
                        imposition and maintenance of 
                        engineering or land use controls.
                  (D) Reasonable service charges or oversight 
                costs.--The reasonable service charges or 
                oversight costs referred to in subparagraph (C) 
                include fees or charges assessed in connection 
                with--
                          (i) the processing, issuance, 
                        renewal, or modification of permits;
                          (ii) the review of plans, reports, 
                        studies, and other documents;
                          (iii) attorney's fees;
                          (iv) inspection and monitoring of 
                        facilities or vessels; and
                          (v) any other nondiscriminatory 
                        charges that are assessed in connection 
                        with a State requirement regarding 
                        response relating to hazardous 
                        substances or pollutants or 
                        contaminants.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    A stated purpose of H.R. 2318 is to ensure that 
contaminated federal facilities are cleaned up to state 
standards that are more demanding than federal standards where 
such standards exist. Democratic members of the Committee were 
receptive to this concept. However, once a minimal amount of 
examination of this issue had occurred, it was obvious that the 
assumptions underlying the bill's stated purposes are flawed. 
Moreover, the legislative text of H.R. 2318 appears to have 
developed without any foundational understanding of the 
underlying law or facts. Additional information was readily 
available, but it appears that many obvious experts and 
affected stakeholders were neither contacted nor consulted 
during the drafting of this legislation. No organization or 
stakeholder has publicly endorsed H.R. 2318.
    The majority of federal Superfund sites are owned or 
operated by the Department of Defense.\1\ Therefore, H.R. 2318 
would impose new obligations on any federal agency that owns or 
operates a Superfund site, but especially the Department of 
Defense. However, the majority did not consult them or the 
Department of Justice during the development of this 
legislation. This legislation would have benefited by being 
crafted with an understanding of the current application of 
Superfund requirements at federal facilities, and the cleanup 
needs at those facilities. As a result, several arguments made 
in the majority's Committee report about the need for this 
legislation are unsupported, or contradicted, by the limited 
record before the Committee.
---------------------------------------------------------------------------
    \1\Congressional Research Service, Comprehensive Environmental 
Response, Compensation, and Liability Act: A summary of Superfund 
Cleanup Authorities and Related provisions of the Act, at 5 (Jun. 14, 
2012)(R41039).
---------------------------------------------------------------------------
    Since 1986, the requirements of the Comprehensive 
Environmental Response, Compensation, and Liability Act 
(CERCLA, the Superfund statute) have applied to contaminated 
federal facilities. That change was adopted through a careful 
and lengthy legislative process.
    Contamination at federal facilities is significant and 
complex. As the Subcommittee on Environment and the Economy 
heard during the May 22, 2013, hearing on this bill, the 
Government Accountability Office (GAO) has estimated 
significant cleanup costs at federal facilities, and found some 
difficulties in tracking and completing federal facility 
cleanups.\2\
---------------------------------------------------------------------------
    \2\House Committee on Energy and Commerce, Subcommittee on 
Environment and the Economy, Testimony of David Trimble, Director, 
Natural Resources and the Environment, U.S. Government Accountability 
Office, 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).
---------------------------------------------------------------------------
    Although the majority's Committee report suggests that 
federal facilities have not complied with the requirements of 
Superfund, GAO has found that the Department of Defense is 
currently working to clean up 129 sites on the National 
Priority List (NPL) and spent almost $30 billion on cleanups 
between 1986 and 2008. Additionally, although GAO noted 
difficulty establishing interagency agreements between the 
Department of Defense and the Environmental Protection Agency 
(EPA) in 2009, at the hearing on H.R. 2318 the Committee heard 
that significant progress has been made to address that 
issue.\3\
---------------------------------------------------------------------------
    \3\Id.
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        EQUAL TREATMENT FOR FEDERAL FACILITIES UNDER CURRENT LAW

    The majority's Committee report says that ``Federal 
facilities should be held to the same environmental standards 
that apply to non-Federal facilities'' and that ``Congress 
intended Federal facilities conducting response actions under 
CERCLA to be on equal footing with non-Federal entities.'' 
However, it does not appear that in a general sense, federal 
facilities are held to a lesser standard than non-federal 
facilities. In fact, the language of the existing statute 
subjects federal facilities to greater requirements under 
Superfund than non-federal facilities.\4\
---------------------------------------------------------------------------
    \4\Comprehensive Environmental Response, Compensation, and 
Liability Act Sec. 120.
---------------------------------------------------------------------------
    In response to questions for the record from the May 22, 
2013, hearing, GAO confirmed that the requirements placed on 
federal facilities under Superfund go above and beyond those 
placed on non-federal facilities. According to the GAO, section 
120 places reporting requirements and specific procedural 
requirements on federal facilities that apply in addition to 
the requirements that apply to non-federal facilities. These 
requirements lead to agency-led cleanups, wherein agencies take 
responsibility for the execution of a cleanup, not just its 
funding.\5\ In contrast, private parties are only responsible 
for cleanup funding.
---------------------------------------------------------------------------
    \5\Letter from David Trimble, Director, Natural Resources and the 
Environment, U.S. Government Accountability Office, to Chairman John 
Shimkus (Jun. 26, 2013).
---------------------------------------------------------------------------
    While there may be areas where federal facilities should be 
doing more, the majority has failed to identify these areas 
with sufficient specificity to understand the problem that this 
legislation is seeking to address.

                 FORMERLY OWNED SITES UNDER CURRENT LAW

    The majority's report also suggests that federal agencies 
are not liable for the costs of cleanups at formerly owned 
sites, ``contrary to Congress' intent that requirements under 
CERCLA and State law apply to the Federal government in the 
same manner as non-Federal facilities.'' However, testimony at 
the hearing on this bill made clear that federal agencies are 
liable for the costs of cleanup at former sites in the same way 
as non-federal entities.\6\
---------------------------------------------------------------------------
    \6\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).
---------------------------------------------------------------------------
    The Department of Defense is responsible for more formerly 
owned sites than any other agency. In response to questions for 
the record from the May 22, 2013, hearing, the Congressional 
Research Service (CRS) said that formerly owned defense sites 
are subject to specific cleanup requirements under the Defense 
Environmental Restoration Program adopted as part of the 
Superfund Amendments and Reauthorization Act (SARA) of 1986.\7\ 
The Defense Environmental Restoration Account for Formerly Used 
Defense Sites funds cleanups at the largest number of former 
federal facilities cleaned up by the federal government. The 
liability of other federal agencies for cleanup costs at 
formerly owned or operated sites is covered by the Department 
of Justice's settlement fund, not agency appropriations. The 
differences between how the law treats the Department of 
Defense and other agencies would be worthy of understanding 
before further action on this legislation.
---------------------------------------------------------------------------
    \7\Letter from David Bearden, Specialist in Environmental Policy, 
Congressional Research Service, to Chairman John Shimkus (Jun. 26, 
2013); the Superfund Amendments and Reauthorization Act of 1986, Pub. 
L. No. 99-499.
---------------------------------------------------------------------------
    The primary difference between federal responsibility at 
former and currently owned sites is the application of the 
additional section 120 procedural requirements described above 
that increase the responsibility of federal agencies beyond 
what private parties bear. The effect of this legislation with 
regard to formerly owned federal facilities would be to apply 
the additional procedural requirements to federal agencies at 
those sites, enhancing federal obligations over the obligations 
of non-federal parties.
    The record before the Committee does not elucidate the 
myriad effects this change could have, or obstacles to its 
execution. However, a briefing with the Department of Defense 
and the Department of Justice have suggested that applying the 
additional procedural requirements discussed above to sites 
that the federal government no longer operates or owns could 
create significant conflict or perhaps be unworkable.\8\ For 
example, in order to lead a cleanup effort, federal agencies 
could be required to enter and exercise control of land that 
they do not have the right to enter or exercise control of.
---------------------------------------------------------------------------
    \8\Briefing by the Department of Defense and the Department of 
Justice Staff, to House Committee on Energy and Commerce Majority and 
Minority Staff (Jun. 17, 2013).
---------------------------------------------------------------------------
    Another important example is the limits on the permissible 
use of funds from the Department of Justice settlement fund. 
This legislation would subject federal agencies to state court 
injunctions. However, according to the Department of Justice, 
federal agencies will not have the ability to comply with state 
court injunctions regarding formerly owned sites, because 
injunctive relief cannot be covered under the settlement fund. 
An amendment during Committee consideration eliminated criminal 
liability for federal employees caught in potential conflicts 
between state requirements and federal restrictions on use of 
funds, but did not address the conflict itself.

  APPLICATION OF STATE PROCEDURAL REQUIREMENTS TO FEDERAL FACILITIES 
                            UNDER H.R. 2318

    This bill will require federal facilities to comply with 
state substantive and procedural requirements, without 
exception or waiver, regardless of whether those requirements 
conflict with federal requirements. This change could allow 
states to impose costlier cleanup actions on federal facilities 
than are supported by the National Contingency Plan.
    The effect of the bill, according to the Department of 
Defense, would be to disrupt the national priority scheme in 
which the most contaminated federal sites are cleaned up first, 
increase litigation, delay cleanups and waste limited 
resources. The majority has not rebutted these concerns.

                               CONCLUSION

    Both the Department of Defense and the Department of 
Justice have offered to assist the Committee in the development 
of legislation in order to ensure that any legislation passed 
by the House is workable and on sound public policy grounds. It 
is unfortunate that the majority has not accepted this offer. 
However, without a clear articulation of the legislation's 
policy goals and a concentrated effort to address real issues 
in achieving those goals, this legislation is not ready for 
serious consideration. Should the majority decide to devote 
adequate effort to this issue, we'd be happy to work with them.
    For the reasons stated above, we dissent from the views 
expressed in the Committee's report, and urge the majority to 
undertake serious bipartisan oversight of the Superfund program 
and federal facility cleanup in place of this legislation.

                                   Henry A. Waxman.
                                   Paul D. Tonko.