- TXT
-
PDF
(PDF provides a complete and accurate display of this text.)
Tip
?
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.
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.
---------------------------------------------------------------------------
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.
