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Reducing Excessive Deadline Obligations Act

Floor Speech

Date: Jan. 9, 2014
Location: Washington, DC

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Mr. Chairman, I am pleased to rise in support of the amendment to H.R. 2279, the Reducing Excessive Deadline Obligations, or REDO, Act of 2013, which also includes my legislation, H.R. 2226, the Federal and State Partnership for Environmental Protection Act, and Mr. Latta's bill, H.R. 2318, the Federal Facility Accountability Act of 2013.

Our goal with all three of these bills is to modernize some of the environmental laws that we oversee and make sure that the States are playing a significant role in implementing them. To do that, we began this Congress with a hearing on the role of the States in protecting the environment. State environmental protection officials shared their experience and expertise with us and helped us better understand the complex partnership between the States and the Federal Government as States implement Federal laws, such as the Solid Waste Disposal Act, and the EPA implements the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA or Superfund law, and the relation to State environmental protection laws.

Today we consider three bills that are a logical outgrowth of that discussion. The Reducing Excessive Deadline Obligations, or REDO, Act of 2013 would give EPA flexibility by correcting two arbitrary action deadlines that were written into the Solid Waste Disposal Act and CERCLA many years ago.

RCRA contains a mandate that EPA review and, if necessary, revise all RCRA regulations every 3 years. This deadline is unnecessary and unworkable in the face of the significant number of regulations that currently exist under RCRA.

The bill would allow the Administrator to review and, if necessary, revise regulations as she thinks appropriate. The bill would also lift an action deadline in CERCLA requiring EPA to identify, prior to 1984, classes of facilities for which to develop financial assurance regulations.

More than 30 years passed without action from the EPA to promulgate regulations regarding financial assurance. A lawsuit and court order finally prompted the EPA action just a few years ago.

In the meantime the States and other Federal agencies have long since acted, putting in place strong financial assurance requirements of their own. That is why the bill also provides that if EPA does get around to establishing Federal financial assurance regulations, the States requirements would not be preempted.

The bill also requires the EPA to gather information regarding the financial assurance programs of States and other Federal agencies and report to Congress regarding whether there is a need for additional regulations by the EPA.

Should the EPA determine there is a need for additional requirements, the bill ensures compliance with existing State or Federal requirements will count towards compliance with EPA's requirements.

The Federal Facility Accountability Act would bring the CERCLA waiver of sovereign immunity into conformity with the Solid Waste Disposal Act, and for that matter the Clean Air Act, by requiring that all Federal Superfund sites comply with the same State laws and regulations as a private entity. This is not a new concept.

Legislation has been introduced previously by my friends across the aisle to ensure that Federal agencies comply with all Federal and State environmental laws, including CERCLA.

In fact, the Federal Facilities Compliance Act of 1991 had the same goal: to make Federal facilities subject to all the same substantive and procedural requirements, including enforcement requirements and sanctions that State and local governments and private companies meet.

The Federal Facility Accountability Act applies the same policy to Federal facilities under CERCLA that already applies to Federal facilities under the Solid Waste Disposal Act. Some argue that if this bill becomes law it will change Federal agencies' spending by forcing them to comply with State laws and that CERCLA is different because it is retroactive and applies to prior actions of the Federal Government.

The Solid Waste Disposal Act often applies to past conduct. That's why there is a provision for "corrective measures.'' In fact, the EPA has issued multiple guidance documents that describe how Federal agencies should harmonize RCRA and CERCLA with respect to cleanups of hazardous waste.

Past conduct, future conduct--the fairness principle is the same. The basic question is whether Federal agencies should comply with State environmental protection laws just as private companies and State and local agencies must do.

My bill, the Federal and State Partnership for Environment Protection Act, does exactly what the title implies and would go a long way toward making the States partners with the EPA in cleaning up hazardous waste sites.

CERCLA is implemented by the EPA, but often States are in the best position to understand the sites in their State. This bill would allow States to play a larger role in the CERCLA process in several ways. The bill would allow States to list a site that it believes needs to be on the National Priorities List every 5 years and would provide transparency to the States if they suggest a site for listing.

The bill would also allow States to be consulted before the EPA selects a remedial action.

States are on the front lines and understand at the ground level how to prioritize environmental actions within their States.

They often come up with innovative solutions that better fit the local problem. We heard examples of that in our hearing on the Role of the States in Protecting the Environment.

CERCLA is a key example of a statute passed more than 30 years ago that we can now update and strengthen the Federal-State partnership to get sites cleaned up.

Removing barriers to job creation imposed by Federal Government is a cornerstone in our governing philosophy. Cory Gardner, Bob Latta and I produced bills to ensure that the Federal Government reduces unnecessary red tape, the barriers to job creation, while still keeping our environment healthy. These important bills aim to improve the Federal and State relationship when dealing with hazardous waste.

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Mr. Chairman, I have to respond, I think, briefly. I appreciate the ranking member's passion in addressing these issues, but we need to clear up what some of the facts actually are.

CBO has scored these bills and has come back and said that there are no significant cost increases associated with these. Furthermore, in regards to meeting with the Department of Justice and the Department of Defense, that meeting did occur, and the concerns that they raised were mainly around criminal liabilities for Federal employees, and that was addressed in the final legislation. So I'm not sure why we are still debating those issues.

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Mr. Chairman, just a couple of quick points of clarification.

My friend and colleague Mr. Tonko and I agree on many things, and we have a history of having worked together to hold the EPA to commonsense rules, and I appreciate that, but I need to clarify just a couple of quick things that my colleague mentioned.

From the Environmental Council of the States, I have before me a letter that I would like to enter into the Record stating that the Environmental Council of the States is writing to support many of the concepts included in this legislation, on all three pieces of this legislation.

And the other organization, the Association of State and Territorial Solid Waste Management Officials, they don't take positions on legislation; so no matter what the piece of legislation would be, if you call them, they are not going to take a position on it one way or another. That does not mean that they do not support this, but they simply don't take positions.

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In closing, I want to go back and revisit just briefly some of the cost implications or the allegations of cost implications of today's legislation that we are considering.

CBO carefully analyzed all three of the bills that we are considering as part of H.R. 2279 today, and here is what they said:

CBO estimates that, in some cases, implementing this legislation could affect the pace of discretionary spending if priorities for cleanup activities change. However, CBO expects that total costs to fulfill Federal responsibilities under CERCLA would be little changed under this legislation.

That was directly from the CBO score for H.R. 2226.

Based on information from EPA, CBO expects that removing the current requirement to review certain recommendations every 3 years would reduce administrative costs. However, some of those savings in administrative expenses would be offset by spending on the new requirement to report to the Congress any financial responsibility requirements. CBO estimates that, on balance, implementing this legislation would not have a significant net impact on spending that is subject to appropriation over the 2014-2018 period. Enacting H.R. 2279 would not affect direct spending or revenues.

That was directly from the CBO score for H.R. 2279.

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 the 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. CBO estimates that any additional direct spending over the 2014-2023 period would be insignificant.

CBO goes on to say:

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, but the total long-term cost of compliance would not change substantially.

I just wanted to make that point for the record.

Finally, I want to urge my colleagues not to be misled by my colleague's argument that this bill somehow prevents the EPA from enacting financial assurance requirements. It simply does not. More than 30 years passed before EPA complied with the requirements of CERCLA and started the process of developing financial assurance requirements. All this bill does is require the EPA to acknowledge the body of law developed by the States and other Federal agencies in the more than 30 years since the EPA has failed to act.

This legislation does not limit EPA from establishing Federal CERCLA financial responsibility requirements or from setting a minimum level of financial assurance that is required. H.R. 2279 merely ensures that existing State and Federal requirements can be used to meet those requirements where appropriate and ensures that existing State protections that may already exceed a new Federal minimum requirement will not be automatically voided.

The purpose of the provision in the bill requiring the EPA to report to Congress before new CERCLA financial responsibility requirements are enacted is to make sure that there is a legitimate need for new requirements. It does not prevent the EPA from promulgating new requirements if they are necessary.

My colleague argues that the bill is based on a false premise that States are implementing adequate financial assurance requirements. The bill does not prejudge State financial assurance requirements. What the bill does is require the EPA to analyze the existing financial assurance requirements, and it directs the EPA to ``fill the gap'' left by financial assurance regulations developed by the States or other Federal agencies. But make no mistake, if there is a regulatory gap and the EPA believes that gap needs to be filled, the EPA is free to enact regulations.

The purpose of financial assurance under 108(b) of CERCLA was to prevent the creation of new Superfund sites. The bill provides a mechanism for gathering information to decide whether the existing State and Federal financial assurance requirements are adequate to protect the Federal Government from incurring response costs under CERCLA.

The bill directs the EPA to gather information and report back to us before it promulgates any additional requirements. It does not otherwise preclude the EPA from enacting rules that the EPA determines are necessary. In fact, we understand that the EPA has already been gathering this information from the States and other Federal agencies like the Bureau of Land Management and the Forest Service.

The bill simply sets out a process for us to learn what State and other agency requirements are out there and whether there is a need for more regulation before the EPA creates yet another layer of regulation. Contrary to what my colleagues are saying, the bill does not cut off any rulemaking by the EPA.

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Mr. Chairman, I rise in opposition to the amendment.

Mr. JOHNSON of Ohio. Mr. Chairman, this amendment strikes the provision that would allow States to list a site on the National Priorities List once every 5 years.

States have a great deal of experience and expertise in cleaning up sites contaminated by hazardous wastes, and States are often in a better position to understand the realities of site cleanup in their States and to understand the local or regional issues affecting the cleanup, but there are times when it would be better addressed by the EPA under CERCLA, and there would be a significant delay in the listing process. As a result, the bill also allows a State to designate a site that meets the criteria for listing to the National Priorities List once every 5 years.

CERCLA currently permits States to list a site on the National Priorities List only once. States have taken to calling this their ``silver bullet.'' Using the silver bullet fast-tracks the listing of a site on the NPL and allows States to avoid the often lengthy listing process. Some States have already used their silver bullet, while others hold onto it and wait for a site that it believes would be better addressed by the EPA under CERCLA.

My colleague indicated in a Dear Colleague letter she circulated earlier today that the bill could result in the EPA's placing silver bullet projects at the bottom of the priorities list while still remaining in statutory compliance. While I appreciate my colleague's concern, this statement is both misleading and incorrect. The reality is that the EPA can place a silver bullet site--or any other site for that matter--at the bottom of its priority list at any time. This bill does not change the EPA's ability to prioritize sites for cleanup.

CERCLA is very process heavy, and States are often reluctant to wade into the drawn-out CERCLA process. They would rather clean up the sites themselves and avoid the stigma associated with having a Superfund site in their States. However, there are times when the only way to get a site cleaned up is to get it on the Superfund list. It is not an easy conclusion for States to come to, and States are not clamoring to list on the National Priorities List. So any argument that this bill would somehow result in an onslaught of new listings by the States would simply not play out.

One of the arguments against allowing States to list a site on the NPL is that it will somehow change the EPA's prioritization of how to spend its cleanup dollars. Just because a site is listed on the NPL does not mean that it will automatically receive funding or will somehow jump to the front of the line to receive cleanup dollars. Nothing in this bill changes the fact that the EPA sets the priority for sites to be cleaned up, and the EPA decides how to spend its cleanup dollars.

Furthermore, if a site is listed and is being cleaned up using Federal dollars, States are financially invested in making sure the cleanup is done right. States must contribute 10 percent of the overall remedial cost and all of the long-term operation and maintenance costs. With that, I urge my colleagues to oppose this amendment.

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Mr. Chairman, ironically, the EPA often pushes States to identify more sites that the EPA can put on the list so that the EPA can argue for more cleanup funding. The EPA incentivizes States to identify sites that meet the listing criteria by giving the States that identify sites more funds to do initial site assessments.

So the long and short of it is that the EPA wants more sites on the NPL, and the EPA wants the States to assist with identifying NPL sites, but the EPA does not want to relinquish control over the actual selection of the appropriate sites. We are trying to help fix that. Again, I urge a "no'' vote from my colleagues on the Sinema amendment.

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Mr. Chairman, I rise in opposition to the amendment.

Mr. Chairman, I am sure my colleague's amendment is well-intentioned, and in fact, I agree with him. I do not want to see an increase in litigation or a slowdown in the cleanup process or a decrease in funds available to clean up Superfund sites, but this amendment is not necessary because H.R. 2279 will not do any of those things.

CERCLA has been implemented for over 30 years, and the EPA has developed many practices and policies during that time. Some of the policies work and are consistently implemented, but many of the policies or practices are ineffective or are not consistently applied across the EPA regions. The EPA has done a good job of getting contaminated sites cleaned up under CERCLA, but that doesn't mean that we can't do better.

States are often in a better position to understand the local and regional issues affecting the cleanup, and States are well positioned to assist the EPA with all aspects of a response action. By ensuring that the States have a meaningful role in the Federal-State partnership under CERCLA and by making sure that Federal entities are on a level playing field with private entities engaged in CERCLA cleanups, we can do better and get more sites cleaned up faster.

My colleague's amendment implies that the purpose of this bill is to thwart cleanup efforts. On the contrary, the purpose of this legislation is to make sure sites get cleaned up in a timely fashion by enhancing the existing role of the States, which are in the best position to assess the conditions at the site. The bill adjusts a top-down culture of CERCLA cleanups, but the bill does not alter the EPA's lead role in implementing CERCLA. States are already involved in the CERCLA process. Ensuring that States have a meaningful and substantial role will not slow down the cleanup process.

My colleague's amendment also implies that H.R. 2279 will reduce the number of funds available for cleanup. This is simply not the case. Congress decides on the amount of money to be appropriated to the EPA or to other Federal agencies for cleanups, and that is not changed by this legislation. It is up to the Federal agencies to prioritize how they spend the appropriated cleanup funds, and nothing in this bill changes the way money appropriated for cleanups is spent.

With that, I reserve the balance of my time.

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Mr. Chairman, once again, I want to say how much I respect my colleague, Mr. Tonko. We continue to work together, have worked together, and have had some successes in holding the EPA accountable to the law. I appreciate working with him.

But this amendment, although well-intentioned, is drafted in such a way that makes it impossibly vague. It is indeterminable whether a provision of the bill would increase the potential for litigation, and I continue to urge my colleagues to vote "no'' on the Tonko amendment.

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Mr. Speaker, I rise in opposition to the motion.

Mr. Speaker, our goal with this legislation is clear and straightforward. We want to modernize outdated environmental laws. The part of the bill that the gentleman from Colorado (Mr. Gardner) wrote makes modest, but important, improvements in environmental law. It allows the EPA to review and revise its solid waste disposal regulations as necessary.

In a hearing that we had, we asked a mayor from New Jersey, Would you rather clean up the trash or revise regulations? The mayor made it clear he would rather focus on getting the real work done instead of getting bogged down in governmental red tape.

The part of the bill written by the gentleman from Ohio (Mr. Latta) says that Federal facilities should behave like anyone else in the State and meet the same natural resource protection requirements. Now, go figure: requiring the Federal Government to live under the same laws that the American people, the States and private-sector businesses have to live under. This is not a new concept. It is already the case under the Clean Air Act and RCRA. Let's just narrow the gap for the Superfund.

Finally, the portion that I wrote ensures that States have a place at the discussion table throughout the process that the EPA set for developing remediation plans.

I urge a ``no'' vote on the motion to recommit and a ``yes'' on final passage. With that, I yield back the balance of my time.

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