29–006 

113TH CONGRESS REPT. 113–178 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

FEDERAL AND STATE PARTNERSHIP FOR 

ENVIRONMENTAL PROTECTION ACT OF 2013 

JULY 30, 2013.—Ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2226] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2226) to amend the Comprehensive Environmental 

Response, Compensation, and Liability Act of 1980 relating to 

State consultation on removal and remedial actions, State concurrence with listing on the National Priorities List, and State credit 

for contributions to the removal or remedial action, and for other 

purposes, having considered the same, report favorably thereon 

with an amendment and recommend that the bill as amended do 

pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 3 

Background and Need for Legislation .................................................................... 3 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 7 

Statement of General Performance Goals and Objectives .................................... 7 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 7 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 7 

Committee Cost Estimate ....................................................................................... 7 

Congressional Budget Office Estimate ................................................................... 7 

Federal Mandates Statement ................................................................................. 8 

Duplication of Federal Programs ............................................................................ 9 


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Disclosure of Directed Rule Makings ..................................................................... 9 

Advisory Committee Statement .............................................................................. 9 

Applicability to Legislative Branch ........................................................................ 9 

Section-by-Section Analysis of the Legislation ...................................................... 9 

Changes in Existing Law Made by the Bill, as Reported ..................................... 11 

Dissenting Views ..................................................................................................... 15 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Federal and State Partnership for Environmental 

Protection Act of 2013’’. 

SEC. 2. CONSULTATION WITH STATES. 

(a) REMOVAL.—Section 104(a)(2) of the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980 (42 U.S.C. 9604(a)(2)) is amended by striking ‘‘Any removal action undertaken by the President under this subsection (or by 

any other person referred to in section 122) should’’ and inserting ‘‘In undertaking 

a removal action under this subsection, the President (or any other person undertaking a removal action pursuant to section 122) shall consult with the affected 

State or States. Such removal action should’’. 

(b) REMEDIAL ACTION.—Section 104(c)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9604(c)(2)) is amended 

by striking ‘‘before determining any appropriate remedial action’’ and inserting ‘‘during the process of selecting, and in selecting, any appropriate remedial action’’. 

(c) SELECTION OF REMEDIAL ACTION.—Section 104(c)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 

9604(c)(4)) is amended by striking ‘‘shall select remedial actions’’ and inserting 

‘‘shall, in consultation with the affected State or States, select remedial actions’’. 

(d) CONSULTATION WITH STATE AND LOCAL OFFICIALS.—Section 120(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 

U.S.C. 9620(f)) is amended— 

(1) by striking ‘‘shall afford to’’ and inserting ‘‘shall consult with’’; 

(2) by inserting ‘‘and shall provide such State and local officials’’ before ‘‘the 

opportunity to participate in’’; and 

(3) by adding at the end the following: ‘‘If State or local officials make a determination not to participate in the planning and selection of the remedial action, 

such determination shall be documented in the administrative record regarding 

the selection of the response action.’’. 

SEC. 3. STATE CREDIT FOR OTHER CONTRIBUTIONS. 

Section 104(c)(5) of the Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980 (42 U.S.C. 9604(c)(5)) is amended— 

(1) in subparagraph (A)— 

(A) by inserting ‘‘removal at such facility, or for’’ before ‘‘remedial action’’; 

and 

(B) by striking ‘‘non-Federal funds.’’ and inserting ‘‘non-Federal funds, including oversight costs and in-kind expenditures. For purposes of this paragraph, in-kind expenditures shall include expenditures for, or contributions 

of, real property, equipment, goods, and services, valued at a fair market 

value, that are provided for the removal or remedial action at the facility, 

and amounts derived from materials recycled, recovered, or reclaimed from 

the facility, valued at a fair market value, that are used to fund or offset 

all or a portion of the cost of the removal or remedial action.’’; and 

(2) in subparagraph (B), by inserting ‘‘removal or’’ after ‘‘under this paragraph 

shall include expenses for’’. 

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

(a) BASIS FOR RECOMMENDATION.—Section 105(a)(8)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 

9605(a)(8)(B)) is amended— 

(1) by inserting ‘‘Not later than 90 days after any revision of the national list, 

with respect to a priority not included on the revised national list, upon request 

of the State that submitted the priority for consideration under this subparagraph, the President shall provide to such State, in writing, the basis for not 

including such priority on such revised national list. The President may not add 

a facility to the national list over the written objection of the State, unless (i) 

the State, as an owner or operator or a significant contributor of hazardous substances to the facility, is a potentially responsible party, (ii) the President determines that the contamination has migrated across a State boundary, resulting 


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in the need for response actions in multiple States, or (iii) the criteria under 

the national contingency plan for issuance of a health advisory have been met.’’ 

after ‘‘the President shall consider any priorities established by the States.’’; 

and 

(2) by striking ‘‘To the extent practicable, the highest priority facilities shall 

be designated individually and shall be referred to as’’ and all that follows 

through the semicolon at the end, and inserting ‘‘Not more frequently than once 

every 5 years, a State may designate a facility that meets the criteria set forth 

in subparagraph (A) of this paragraph, which shall be included on the national 

list;’’. 

(b) STATE INVOLVEMENT.—Section 121(f)(1)(C) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9621(f)(1)(C)) 

is amended by striking ‘‘deleting sites from’’ and inserting ‘‘adding sites to, and deleting sites from,’’. 

SEC. 5. STATE ENVIRONMENTAL COVENANT LAW. 

Section 121(d)(2)(A)(ii) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9621(d)(2)(A)(ii)) is amended by 

striking ‘‘State environmental or facility siting law’’ and inserting ‘‘State environmental, facility siting, or environmental covenant law, or under a State law or regulation requiring the use of engineering controls or land use controls,’’. 

PURPOSE AND SUMMARY

The legislation codifies existing policy and regulations to ensure 

that States have a meaningful role in response actions under the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). It allows States to provide input regarding 

removal actions and the selection of remedial actions. The bill also 

allows States to seek in-kind credit toward State cost share requirements for providing goods and services that directly benefit 

removal and remedial actions. The legislation also authorizes 

States to identify a site for listing on the National Priorities List 

(NPL) every five years and ensures that States are able to object 

to the listing of sites to the NPL. The legislation also provides that 

State environmental covenant laws and other engineering or land 

use control laws and regulations are properly considered under 

CERCLA. 

BACKGROUND AND NEED FOR LEGISLATION

CERCLA is primarily implemented by the Environmental Protection Agency (EPA), but a direct and significant State role is crucial 

to getting contaminated facilities cleaned up. CERCLA requires 

that States contribute a portion of the cleanup costs for sites that 

will be listed on the National Priorities List (NPL) and requires 

that States be afforded the opportunity for ‘‘substantial and meaningful involvement’’ in the ‘‘initiation, development, and selection of 

remedial actions to be undertaken in that State.’’ 

The State role in the CERCLA process frequently includes conducting a preliminary assessment regarding whether a site poses 

a threat to human health and the environment and whether additional investigation is required. As a result of these preliminary 

evaluations, many facilities choose to conduct voluntary actions 

under other authorities, including State authorities. The resulting 

leveraging of Federal funds appropriated to implement the 

CERCLA program leads to more cleanups and compliance for the 

same or lower Federal investment. However, this also could lead to 

certain conflicts regarding the administration of CERCLA and 

State cleanup programs with respect to identification and 

prioritization of sites to be cleaned up. In addition, when sites are 


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remediated using the Superfund, States must provide 10% of the 

cost of implementation of the remedy and the entire cost of longterm operation and maintenance (O&M), which may last for decades or longer in the case of heavily contaminated sites. The financial burden of the 10% cost-share and the often unknown future 

cost of the long-term O&M may present significant resource issues 

for State environmental budgets and planning. Although States 

currently have a role in the investigation and evaluation process 

leading up to the selection of a remedy, CERCLA does not require 

EPA to allow States to participate in the actual selection of the 

remedy. EPA may select remedies that require significant longterm O&M instead of remedies that may have higher up-front 

costs, but less expensive O&M costs. This shifts a higher percentage of the overall remediation cost from the Federal government to 

the State as an unfunded Federal mandate. In order to minimize 

conflicts and maximize cleanups, it is critical that EPA and the 

States coordinate closely regarding the identification of facilities for 

listing on the NPL and the selection of remedies. 

CERCLA currently allows States to receive credit toward their 

10% cost share requirement for remedial actions at NPL sites, but 

only for the actual expenditure of State funds. States contribute to 

response actions by many means other than direct cash contributions. State contributions may consist of removal actions prior to 

the listing of a site on the NPL, contribution of recyclable materials 

from the site, which are sold to help offset the cost of the remedy, 

personnel and equipment to conduct site investigation, maintenance, monitoring, and oversight activities. States have experienced mixed results in the various regions under current EPA policy and practice in their attempts to receive credit for these activities toward State cost-share requirements. The amendment to section 104(c)(5) will ensure that State in-kind contributions to 

CERCLA response actions are evaluated and credited consistently 

toward a State’s cost-share requirements. 

CERCLA allows the use of risk-based remedies, which often rely 

on the imposition of administrative, institutional, engineering, or 

other land use controls to prevent exposure to contamination. 

These land use controls may include such restrictions as prohibition on the use of groundwater from a site, prohibition on future 

use of a property for residential or other purposes, prohibition on 

subsurface excavations or construction, and installation and maintenance of permanent barriers to prevent access or contact with residual contaminants. Generally, such restrictions are required to be 

maintained in perpetuity or at least for as long as the potential for 

exposure to the contamination exists. In order to ensure the long 

term permanence and enforceability of these requirements, many 

States have adopted environmental covenant laws and regulations 

and similar land use control requirements to enable and enforce 

such protections as a part of environmental remedies. The amendment to section 121(d)(2)(A)(ii) will ensure that State environmental covenant laws and regulations are included as applicable 

relevant and appropriate requirements (ARARs) under CERCLA. 

HEARINGS

The Subcommittee on Environment and the Economy held a 

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ship for Environmental Protection Act of 2013’’ on May 17 and 22, 

2013. The Subcommittee received testimony from: • Carolyn Hanson, Deputy Executive Director, Environmental Council of the States; • Jeffery Steers, Director, Central Office Division of Land 

Protection and Revitalization, Virginia Department of Environmental Quality; • Dan Miller, Senior Assistant Attorney General, Natural 

Resources and Environment Division, Colorado Department of 

Law; • Abigail Dillen, Coal Program Director, Earthjustice; • Thomas Duch, City Manager, City of Garfield, New Jersey; • David Bearden, Specialist in Environmental Policy, Congressional Research Service; and, • David Trimble, Director, Natural Resources and Environment, Government Accountability Office. 

COMMITTEE CONSIDERATION

On June 5 and 6, 2013, the Subcommittee on Environment and 

the Economy met in open markup session and approved H.R. 2226, 

‘‘Federal and State Partnership for Environmental Protection Act 

of 2013’’ for full Committee consideration, without amendment, by 

a record vote of 11 yeas and 7 nays. 

On June 18 and 19, 2013, the full Committee on Energy and 

Commerce met in open markup session and considered H.R. 2226. 

During the markup, one amendment was offered by Mr. Johnson 

and was adopted by voice vote. On June 19, 2013, the Committee 

ordered H.R. 2226 favorably reported to the House, as amended, by 

a recorded vote of 27 ayes and 19 nays. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. There was one 

record vote taken in connection with ordering H.R. 2226 reported. 

A motion by Mr. Upton to order H.R. 2226 reported to the House, 

with amendment, was agreed to by a record vote of 27 ayes and 

19 nays. The following reflects the recorded votes taken during the 

Committee consideration: 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 20 

BILL: H.R. 2226, the "Federal and State Partnership for Environmental Protection Act of2013" 

AMENDMENT: A motion by Mr. Upton to order H.R. 2226 favorably reported to the House, as amended. 

(Final Passage) 

DISPOSITION: AGREED TO, by a roll call vote of27 yeas and 19 nays. 

I REPRESENTATIVE YEAS NAYS PRESENT I REPRESENTATIVE YEAS NAYS PRESENT 

Mr. Upton X Mr. Waxman X 

Mr.Hall X Mr. Dingell X 

Mr. Barton X Mr. Markey 

Mr. Whitfield X Mr. Pallone 

Mr. Shimkus X Mr.Rush 

Mr. Pitts X Ms. Eshoo X 

Mr. Walden X Mr.Engel X 

Mr. Terry X Mr. Green 

Mr. Rogers X Ms. DeGette X 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

Mrs. Blackburn Ms. Schakowsky X 

Mr. Gingrey X Mr. Matheson X 

Mr. Scalise X Mr. Butterfield X 

Mr.Latta X Mr. Barrow X 

Mrs. McMorris Rodgers X Ms. Matsui X 

Mr. Harper X Ms. Christensen 

Mr. Lance X Ms. Castor X 

Mr. Cassidy Mr. Sarbanes X 

Mr.Guthrie X Mr. McNerney X 

Mr. Olson X Mr. Braley X 

Mr. McKinley X Mr. Welch X 

Mr. Gardner X Mr. Lujan X 

Mr. Pompeo X Mr. Tonko X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

06119/2013 
7 

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee held a legislative hearing and 

made findings that are reflected in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goals and objectives of H.R. 2226 are to codify existing policy 

and clarify the current text of the statute to ensure that States 

have a meaningful role in the removal and remedial process under 

the Comprehensive Environmental Response, Compensation, and 

Liability Act. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 2226, 

‘‘Federal and State Partnership for Environmental Protection Act 

of 2013,’’ would result in no new or increased budget authority, entitlement authority, or tax expenditures or revenues. 

EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI of the 

Rules of the House of Representatives, the Committee finds that 

H.R. 2226, ‘‘Federal and State Partnership for Environmental Protection Act of 2013,’’ contains no earmarks, limited tax benefits, or 

limited tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974. 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 10, 2013. 

Hon. FRED UPTON, Chairman, Committee on Energy and Commerce, House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2226, the Federal and 

State Partnership for Environmental Protection Act of 2013. 


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If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Maggie Morrissey and 

Susanne S. Mehlman. 

Sincerely, 

ROBERT A. SUNSHINE

(For Douglas W. Elmendorf, Director). 

Enclosure. 

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

H.R. 2226 would amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to clarify that the Environmental Protection Agency (EPA) should consult 

with affected states when undertaking actions to remove or remediate hazardous waste from the environment. H.R. 2226 also would 

expand credits given toward a state’s share of cleanup costs at remedial sites to include in-kind contributions made during removal 

actions under certain conditions. (Under CERCLA, a removal action is defined as a short-term or emergency action that may be 

necessary to address a release or threat of a release of a hazardous 

substance. In contrast, a remedial action is less time-critical and 

instead addresses long-term threats to human health and the environment at a site.) Under current law, states are responsible for 10 

percent of the cost of remedial actions at a site. Finally, the bill 

would prohibit EPA from listing a site on the National Priorities 

List (NPL) over the objections of the state (with a few exceptions) 

and would give greater deference to state priorities in the listing 

process. (The NPL is the list of hazardous waste sites eligible for 

cleanup under CERCLA.) 

CBO estimates that, in some cases, implementing this legislation 

could affect the pace of discretionary spending if priorities for 

cleanup activities change. However, CBO expects that total costs to 

fulfill federal responsibilities under CERCLA would be little 

changed under this legislation. Giving states credit for removal activities that they would have performed in any event could increase 

EPA’s remedial costs. However, if states perform additional or 

more extensive removal actions because of the availability of the 

credit, the cost to the federal government of subsequent remedial 

actions could decrease. On balance, CBO estimates that expanding 

the credit available to states to include certain removal expenses 

would not have a significant impact on the federal budget. 

Pay-as-you-go procedures do not apply because enacting this bill 

would not affect direct spending or revenues. 

H.R. 2226 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no cost on state, local, or tribal governments. 

The CBO staff contacts for this estimate are Maggie Morrissey 

and Susanne S. Mehlman. The estimate was approved by Theresa 

Gullo, Deputy Assistant Director for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 


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DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 2226 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 2226 specifically directs to be completed 2 specific rule makings within the meaning 

of 5 U.S.C. 551. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act are created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1—Short title 

This section entitles the Act the ‘‘Federal and State Partnership 

for Environmental Protection Act of 2013.’’ 

Section 2—Consultation with States 

This section amends section 104(a)(2) of CERLCA to require the 

President to consult with States in undertaking a removal action. 

The Committee acknowledges that the National Contingency Plan 

(NCP), specifically, 40 CFR 300.525, requires EPA to consult with 

a State on all removal actions to be conducted in the State. The 

Committee, however, intends to codify the existing regulation and 

policy in the statute. The Committee acknowledges that situations 

may arise in which EPA may need to do an emergency removal. 

The Committee expects that because of EPA’s existing regulation 

requiring consultation with States on all removal actions, this statutory change will not change the Agency’s practice of consulting 

with States and will not impede the Agency’s ability to do an emergency removal. 

This section also amends section 104(c)(2) of CERCLA to require 

that the President consult with the affected State during the process of and when selecting a remedial action. The Committee acknowledges that current law requires EPA to consult with States 

before selecting a remedial action. The Committee intends that 

EPA consult with States throughout the entire process of selecting 

the appropriate remedial action. In order to effectuate that policy, 

this section also amends section 104(c)(4) of CERCLA to ensure 

consultation with the affected State or States in selecting a remedial action and section 120(f) of CERCLA to require consultation 


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with State and local officials in the planning and selection of a remedial action for Federal facilities. 

Section 3—State credit for other contributions 

This section amends section 104(c)(5) of CERCLA to credit States 

toward the 10% cost share under section 104(c)(3) for expenditures 

made for a removal action, for in-kind contributions such as real 

property, equipment, goods, and services provided for removal or 

remedial action at the facility, or amounts derived from materials 

recycled, recovered, or reclaimed from the facility that are used to 

fund or offset all or a portion of the cost of a removal or remedial 

action. The Committee acknowledges that CERCLA currently allows States credit toward the 10% cost share for direct, out-of-pocket, non-Federal funds expended by the State. The Committee acknowledges that there are many ways States contribute to a longterm remedy that are not direct expenditures of non-Federal funds. 

The Committee also acknowledges that it is a policy of EPA to 

allow for certain in-kind contributions made by the State if they directly benefit the CERCLA-funded cleanup. The Committee intends 

to codify the policy and allow States to get credit for in-kind contributions of real property, goods, services, equipment, and 

amounts derived from materials recycled or recovered from the facility. 

The Committee acknowledges that CERCLA limits when States 

may receive credit toward the cost share requirement to the time 

when a State expends funds for a remedial action. The Committee 

acknowledges however, that States often conduct removal actions 

that directly benefit the long-term remedial action and obviate or 

reduce a removal action by EPA. The Committee acknowledges 

that there is not a cost share requirement for States with respect 

to removal actions, and no such additional cost share requirement 

is intended by this legislation. However, because a State conducting a removal action or taking some removal-type action in advance of the final remedy selection lessens the potential Federal expenditures at the site with respect to the permanent remedy, the 

Committee intends that States receive credit toward the 10% cost 

share for the remedial action. 

Section 4—State concurrence with listing on the national priorities 

list 

This section amends section 105(a)(8)(B) of CERCLA to provide 

(1) that not later than 90 days after any revision to the NPL, with 

respect to any site recommended by a State, but not selected for 

inclusion on the NPL, the President must provide, in writing, to 

the State the basis for not including the site. Section 4 also strikes 

the concept of the ‘‘highest priority facilities’’ and the ‘‘top priority 

among known response targets;’’ and (2) allows States, not more 

than once every 5 years, to designate to the NPL a facility that 

meets the listing criteria. The Committee intends to codify current 

EPA policy to not list a site on the NPL over the objection of a 

State. 

This section also amends section 121(f)(1)(C) of CERCLA by acknowledging that EPA should seek State concurrence when adding 

sites to the NPL as well as when deleting sites from the NPL. 


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Section 5—State environmental covenant law 

This section amends section 121(d)(2)(A)(ii) of CERCLA by adding ‘‘State environmental covenant law’’ and ‘‘State law or regulation requiring the use of engineering or land use controls’’ to the 

list of State requirements that can be considered applicable or relevant and appropriate. CERCLA section 121(d)(2)(A) requires that 

remedial actions meet any Federal standards, requirements, criteria, or limitations that are determined to be legally applicable or 

relevant and appropriate. Section 121(d)(2)(A)(ii) requires that such 

State requirements (applicable relevant and appropriate requirements (ARARs)) be met if they are more stringent than Federal requirements. Concerned that EPA and other Federal agencies implementing CERCLA may fail to recognize State environmental covenant laws and other land use control laws and regulations as 

ARARs on the purported basis that such laws and requirements 

are not ‘‘environmental laws’’ or ‘‘facility siting laws,’’ the Committee included the amendment to section 121(d)(2)(A)(ii) to address this issue. This section clarifies that such State laws and requirements are to be considered ARARs under CERCLA. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

COMPREHENSIVE ENVIRONMENTAL RESPONSE, 

COMPENSATION, AND LIABILITY ACT OF 1980 

* * * * * * * 

TITLE I—HAZARDOUS SUBSTANCES RELEASES, LIABILITY, 

COMPENSATION 

* * * * * * * 

RESPONSE AUTHORITIES

SEC. 104. (a)(1) * * * 

(2) REMOVAL ACTION.—øAny removal action undertaken by the 

President under this subsection (or by any other person referred to 

in section 122) should¿ In undertaking a removal action under this 

subsection, the President (or any other person undertaking a removal action pursuant to section 122) shall consult with the affected 

State or States. Such removal action should, to the extent the 

President deems practicable, contribute to the efficient performance 

of any long term remedial action with respect to the release or 

threatened release concerned. 

* * * * * * * 

(c)(1) * * * 

(2) The President shall consult with the affected State or States 

øbefore determining any appropriate remedial action¿ during the 

process of selecting, and in selecting, any appropriate remedial acVerDate Mar 15 2010 06:15 Aug 01, 2013 Jkt 029006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR178P1.XXX HR178P1

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tion to be taken pursuant to the authority granted under subsection (a) of this section. 

* * * * * * * 

(4) SELECTION OF REMEDIAL ACTION.—The President øshall select 

remedial actions¿ shall, in consultation with the affected State or 

States, select remedial actions to carry out this section in accordance with section 121 of this Act (relating to cleanup standards). 

(5) STATE CREDITS.— (A) GRANTING OF CREDIT.—The President shall grant a State 

a credit against the share of the costs, for which it is responsible under paragraph (3) with respect to a facility listed on 

the National Priorities List under the National Contingency 

Plan, for amounts expended by a State for removal at such facility, or for remedial action at such facility pursuant to a contract or cooperative agreement with the President. The credit 

under this paragraph shall be limited to those State expenses 

which the President determines to be reasonable, documented, 

direct out-of-pocket expenditures of ønon-Federal funds.¿ nonFederal funds, including oversight costs and in-kind expenditures. For purposes of this paragraph, in-kind expenditures 

shall include expenditures for, or contributions of, real property, 

equipment, goods, and services, valued at a fair market value, 

that are provided for the removal or remedial action at the facility, and amounts derived from materials recycled, recovered, 

or reclaimed from the facility, valued at a fair market value, 

that are used to fund or offset all or a portion of the cost of the 

removal or remedial action. 

(B) EXPENSES BEFORE LISTING OR AGREEMENT.—The credit 

under this paragraph shall include expenses for removal or remedial action at a facility incurred before the listing of the facility on the National Priorities List or before a contract or cooperative agreement is entered into under subsection (d) for 

the facility if— 

(i) * * * 

* * * * * * * 

NATIONAL CONTINGENCY PLAN

SEC. 105. (a) REVISION AND REPUBLICATION.—Within one hundred and eighty days after the enactment of this Act, the President 

shall, after notice and opportunity for public comments, revise and 

republish the national contingency plan for the removal of oil and 

hazardous substances, originally prepared and published pursuant 

to section 311 of the Federal Water Pollution Control Act, to reflect 

and effectuate the responsibilities and powers created by this Act, 

in addition to those matters specified in section 311(c)(2). Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish 

procedures and standards for responding to releases of hazardous 

substances, pollutants, and contaminants, which shall include at a 

minimum: 

(1) * * * 

* * * * * * * 

(8)(A) * * * 


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(B) based upon the criteria set forth in subparagraph (A) of 

this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list 

no less often than annually. Within one year after the date of 

enactment of this Act, and annually thereafter, each State 

shall establish and submit for consideration by the President 

priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in 

subparagraph (A) of this paragraph. In assembling or revising 

the national list, the President shall consider any priorities established by the States. øTo the extent practicable, the highest 

priority facilities shall be designated individually and shall be 

referred to as the ‘‘top priority among known response targets’’, 

and, to the extent practicable, shall include among the one 

hundred highest priority facilities one such facility from each 

State which shall be the facility designated by the State as 

presenting the greatest danger to public health or welfare or 

the environment among the known facilities in such State. A 

State shall be allowed to designate its highest priority facility 

only once. Other priority facilities or incidents may be listed 

singly or grouped for response priority purposes;¿ Not later 

than 90 days after any revision of the national list, with respect 

to a priority not included on the revised national list, upon request of the State that submitted the priority for consideration 

under this subparagraph, the President shall provide to such 

State, in writing, the basis for not including such priority on 

such revised national list. The President may not add a facility 

to the national list over the written objection of the State, unless 

(i) the State, as an owner or operator or a significant contributor of hazardous substances to the facility, is a potentially responsible party, (ii) the President determines that the contamination has migrated across a State boundary, resulting in the 

need for response actions in multiple States, or (iii) the criteria 

under the national contingency plan for issuance of a health 

advisory have been met. Not more frequently than once every 5 

years, a State may designate a facility that meets the criteria 

set forth in subparagraph (A) of this paragraph, which shall be 

included on the national list; 

* * * * * * * 

SEC. 120. FEDERAL FACILITIES. 

(a) * * * 

* * * * * * * 

(f) STATE AND LOCAL PARTICIPATION.—The Administrator and 

each department, agency, or instrumentality responsible for compliance with this section øshall afford to¿ shall consult with relevant 

State and local officials and shall provide such State and local officials the opportunity to participate in the planning and selection of 

the remedial action, including but not limited to the review of all 

applicable data as it becomes available and the development of 

studies, reports, and action plans. In the case of State officials, the 

opportunity to participate shall be provided in accordance with section 121. If State or local officials make a determination not to participate in the planning and selection of the remedial action, such 


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determination shall be documented in the administrative record regarding the selection of the response action. 

* * * * * * * 

SEC. 121. CLEANUP STANDARDS. 

(a) * * * 

* * * * * * * 

(d) DEGREE OF CLEANUP.—(1) * * * 

(2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if— 

(i) * * * 

(ii) any promulgated standard, requirement, criteria, or limitation under a øState environmental or facility siting law¿ 

State environmental, facility siting, or environmental covenant 

law, or under a State law or regulation requiring the use of engineering controls or land use controls, that is more stringent 

than any Federal standard, requirement, criteria, or limitation, 

including each such State standard, requirement, criteria, or 

limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the 

State in a timely manner, 

* * * * * * * 

(f) STATE INVOLVEMENT.—(1) The President shall promulgate regulations providing for substantial and meaningful involvement by 

each State in initiation, development, and selection of remedial actions to be undertaken in that State. The regulations, at a minimum, shall include each of the following: 

(A) * * * 

* * * * * * * 

(C) State concurrence in ødeleting sites from¿ adding sites 

to, and deleting sites from, the National Priorities List. 

* * * * * * * 


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1 H.R. 2226, the ‘‘Federal and State Partnership for Environmental Protection Act of 2013’’ at 

§ 3. 2 Id. at § 4(a)(2). 3See, e.g., id. at § 2(d). 4 Id. at § 2(a). 5 House Committee on Energy and Commerce, Subcommittee on Environment and the Economy, Legislative Hearing on H.R.l the ‘‘Federal and State Partnership for Environmental Protection Act of 2013;’’ H.R.l, the ‘‘Reducing Excessive Deadline Obligations Act of 2013;’’ and 

H.R.l, the ‘‘Federal Facility Accountability Act of 2013.’’ 113th Cong. (May 22, 2013). 

DISSENTING VIEWS 

The Federal and State Partnership for Environmental Protection 

Act is not based on an oversight record before the Committee and 

has not been endorsed by stakeholders. It is therefore unclear what 

issue the bill is intended to address. According to the majority’s report, the bill ‘‘codifies existing policy and regulations to ensure that 

States have a meaningful role in response actions’’ under Comprehensive Environmental Response, Compensation, and Liability 

Act (CERCLA, the Superfund statute). But the Superfund statute 

already explicitly requires a meaningful role for states, and in fact, 

states participate in every stage of Superfund cleanups. 

This legislation would make the following significant changes to 

current law: 

• Shift the balance of cleanup costs between states and the 

Environmental Protection Agency (EPA) by allowing states to 

count costs of removal actions, which are calculated separate 

from response actions, and ‘‘in kind contributions’’ towards 

their 10% contribution to response actions at national priority 

list (NPL) sites.1

• Allow states to force listing of a site on the NPL once 

every five years, increased from one time over the life of the 

program under the existing law, potentially significantly increasing the inventory of sites to be cleaned up with federal 

funds.2

• Rewrite established terminology relating to state consultation with undefined terms.3

• Allow states to collect attorneys’ fees and oversight costs 

from the federal funds designated for cleanups. 

• Require consultation with states before removal actions, 

the short-term actions taken to address serious immediate 

threats, potentially delaying important actions to protect public 

health.4

This bill has been presented as correcting a problem where states 

are not sufficiently consulted in the decisions to clean up contaminated sites through the Superfund program. 

At the May 22, 2013, hearing on this bill, the Subcommittee on 

Environment and the Economy heard that states currently have extensive opportunities to be involved in clean up decisions under 

current law.5 The Subcommittee also heard that, if a state wants 


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6 Id. 

7 H.R. 2226, the ‘‘Federal and State Partnership for Environmental Protection Act of 2013’’ § 3. 

8 Comprehensive Environmental Response, Compensation, and Liability Act § 121, 42 U.S.C. 

§ 9 621; Congressional Research Service, Comprehensive Environmental Response, Compensation, and Liability Act: A summary of Superfund Cleanup Authorities and Related provisions of 

the Act, at 11 (Jun. 14, 2012)(R41039). 

complete control over the clean-up of a contaminated site, the state 

can simply conduct its own clean-up under state law and retain full 

control of all decisions.6 The question presented in this bill is how 

much control should be given to states over federal funds that are 

needed nationwide to clean up the highest priority sites first. The 

Superfund program is an essential public health program with a 

national scope. If one state is empowered by this legislation to monopolize more of the federal Superfund, by adding more sites to the 

NPL, demanding costlier remedies, and recovering attorneys’ fees, 

the result will be delays or postponements of needed cleanups in 

other states. 

COST SHARING

Under Superfund, there is a cost-share in place between states 

and the federal government for response actions. The federal government pays 90% of the costs and the state pays just 10%. For 

short-term removal actions, the law is even more generous to the 

states. When the federal government carries out a removal action, 

it is paid for completely with federal funds. 

This bill would allow states to get credit towards their 10% share 

of response costs for in-kind contributions and funds spent on removal actions if the state undertakes those actions.7 This allowance amounts to a shift in the cost-share between the state and the 

federal government, because EPA is not allowed the same credit for 

the same expenditures. The result is likely to be less funding available for cleanups. 

STATE PARTICIPATION UNDER CURRENT LAW

Even though Superfund is a federal program, paid for out of the 

general fund, the law provides for significant state involvement. 

Under the statute as it currently stands, EPA is required to provide ‘‘substantial and meaningful participation’’ to states.8

Under that provision, states are already involved in suggesting 

sites for cleanup under Superfund. EPA already seeks concurrence 

from states before slating a site for clean up on the National Priority List. And states can already block EPA from carrying out a 

selected response action, by not agreeing to pay the cost-share for 

that response action. 

If a state wants to take more of a leadership role at a Superfund 

site, under current law, they already have the ability to assume the 

lead under cooperative agreements with EPA. 

This bill would allow states to override potential concerns of the 

federal government, forcing or vetoing the placement of a site on 

the National Priorities List. Because sites on the NPL are eligible 

for funding from public coffers, the result of this could be less funding available for cleanups that are national priorities in terms of 

the risk posed to public health and the environment. 


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9 Id. 

CLEANUP STANDARDS

As amended during the full Committee markup, this bill now 

says that state engineering and land use control requirements 

should be mandatory cleanup standards under subsection (d) of section 121 of Superfund. But those requirements already apply under 

subsection (f), with clear and well-understood processes. It is unclear how this new language would interact with the existing language, whether it is necessary, or what it is trying to achieve. 

Response actions are chosen under Superfund in keeping with 

statutory requirements and the National Contingency Plan (NCP). 

Among other things, the NCP provides that, in situations where 

two response actions provide the same level of protection to public 

health and the environment, the less costly response action should 

be implemented (although the statute and the NCP express a preference for permanent removal response actions over capping contamination in place). Section 121(f) of Superfund therefore provides 

a waiver process, whereby the federal government can decide that 

a state requirement does not provide greater protection to public 

health and the environment and therefore not apply that requirement. It appears that this bill would eliminate that waiver, allowing states to force more expensive response actions without a greater benefit to public health or the environment. The result is likely 

to be less funding available for other cleanups. 

DELAYS IN REMOVAL ACTIONS

At the May 17, 2013, hearing on this bill, the Subcommittee 

heard that removal actions are generally short-term actions taken 

to address immediate threats.9 These actions are often taken at the 

request of state government officials. When Superfund was adopted, removal actions were distinguished from the longer-term response actions and given a more streamlined process, so that they 

could be carried out in a timely manner. This bill would change 

that approach, requiring consultation before removal actions can 

occur. The result will likely be greater exposure to contamination 

as necessary actions are delayed. 

CONCLUSION

Superfund is an essential public health program, and one that is 

intended to protect people nationwide. The National Priority List 

and National Contingency Plan have been carefully crafted to balance needs across the country and ensure that funds go to clean 

up the most contaminated sites first. This bill would undermine 

that national priority scheme, allowing states to withdraw more 

federal taxpayer funds than their need supports. This bill does not 

reflect the deliberate and careful approach that should be taken in 

amending a very successful and important public health program. 


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For the reasons stated above, we dissent from the views expressed in the Committee’s report. 

HENRY A. WAXMAN. 

PAUL D. TONKO. 

Æ 


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