Coalition Letter Supporting CERCLA 108(b) Appropriations Language in the FY12 Omnibus Package

The Honorable Jack Reed
Chairman
Senate Appropriations Subcommittee on Interior, Environment and Related Agencies
728 Hart SOB
Washington, DC 20510

The Honorable Lisa Murkowski
Ranking Member
Senate Appropriations Subcommittee on Interior, Environment and Related Agencies
709 Hart SOB
Washington, DC 20510

The Honorable Mike Simpson
Chairman
House Appropriations Subcommittee on Interior, Environment and Related Agencies
2313 Rayburn HOB
Washington, DC 20515

The Honorable James Moran
Ranking Member
House Appropriations Subcommittee on Interior, Environment and Related Agencies
Rayburn HOB 2239
Washington, DC 20515

The undersigned organizations urge you to support Section 455 of the House FY 2012 Interior, Environment, and  elated Agencies Appropriations Bill that would prohibit the U.S. Environmental Protection Agency (EPA) from  eveloping, proposing or implementing new financial responsibility requirements under Section 108(b) of the  omprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This provision is necessary to  rotect the global competitiveness of industries that power the U.S. economy, deliver affordable energy, manufacture and supply critical products, and provide high-paying jobs.

EPA is poised to impose these requirements despite its failure to accurately assess whether the facilities within the  argeted industries actually pose a risk of becoming future Superfund sites that would require expenditure of public  unds for cleanup costs. Instead, EPA’s analyses rely on mischaracterization of data regarding legacy Superfund  ites, as well as vague, anecdotal and irrelevant information that exaggerates the risks posed by currently operating facilities in our industries. Additionally, EPA completely disregards that our industries operate under a comprehensive framework of state and federal environmental laws and regulations designed to prevent releases of hazardous substances or control them at levels that are protective of the environment and human health.

The vast majority, and in some cases all of the facilities, in our industry sectors are already subject to robust financial assurance requirements under federal and/or state laws. In targeting our industries, however, EPA failed to examine these laws and their role in protecting the American taxpayer from funding future Superfund sites. In these cases, CERCLA 108(b) financial assurance requirements would only duplicate other successful federal financial assurance programs, as well as potentially preempt mature state financial assurance programs.

The Western Governors Association and several western states, including Alaska, Arizona, Colorado, Nevada and New Mexico have already lodged serious concerns regarding the preemption of their programs covering reclamation of hardrock mining operations. Similarly, the Association of State and Territorial Solid Waste Management Officials, which represents state and territory agencies that implement financial assurance requirements under their solid and hazardous waste regulatory programs, CERCLA remediation projects, and underground storage tank programs, has voiced concerns with preemption and duplication.

Finally, and contrary to CERCLA’s requirements, EPA has failed to thoroughly analyze the capacity of the financial and credit markets to provide the necessary instruments for meeting any new requirements. It is unlikely that the market can supply the financial assurance that EPA would require under the worst case scenarios the agency is contemplating. As such, companies will be forced to use cash to meet financial assurance obligations, which can have significant anti-competitive effects including putting companies with less liquid cash positions out of business and posing an insurmountable market barrier for new firms. Simply put, these requirements remove capital from the economy.

EPA itself has argued in court that it does not have a mandatory duty to pursue these requirements under CERCLA 108(b). EPA has not shown that under today’s modern environmental regulations our industries present a risk of becoming future Superfund sites. Furthermore, risks our industries may pose are adequately addressed through the existing framework of federal and state environmental laws and regulations and associated financial assurance requirements. We urge you to support Section 455 of the House FY 2012 Interior, Environment and Related Agencies Appropriations Bill that would prevent the EPA from moving forward with an unnecessary and unwise rulemaking that will dramatically impact the competitiveness of critical U.S. industries.

Sincerely,

American Coke & Coal Chemicals Institute
American Iron and Steel Institute
American Petroleum Institute
National Association of Manufacturers
National Mining Association
Northwest Mining Association
Society of Chemical Manufacturers and Affiliates
The Fertilizer Institute
United States Chamber of Commerce