Wednesday, January 29, 2014

S 1951 Introduced – CERCLA Response

As I mentioned almost two weeks ago Sen. Schatz (D,HI) introduced S 1951, a bill dealing with CERCLA liability costs. The bill would extend the financial liability for the consequences of chemical spills under 42 USC 9607.

The bill makes two changes. First it expands the liability provisions to include more than just the defined hazardous substances found in Table 1 to Appendix A in 49 CFR 172.101. It does this by adding the phrase “(or pollutant or contaminant if the President takes any response measure under section 104(a) [42 USC §9604(a)] with respect to the pollutant or contaminant)” {§1(1)}after every mention of ‘hazardous substance’ in 42 USC §9607(a). This mirrors the language in other CERCLA sections that include coverage of pollutants and contaminants.

It then revises §9607(a)(4)(C) to limit the new liability coverage to just owner and operators of facilities. It limits the current CERCLA coverage of liability of others (including waste facility owner/operators and transporters) to the current hazardous substance language.

The timing of this bill, coming just a week after the Freedom spill, makes it look like it is targeted against that type of situation. The Crude MCHM that was spilled into the Elk River would certainly seem to fall under the pollutant category rather than the current hazardous substance rule. The President’s emergency declaration in this particular case would not seem to fit the ‘response measure under section 104(a)’ portion of the pollutant coverage. That section provision could probably have been addressed by adding a reference to that section in the disaster declaration.

I suspect, however, that this bill was already in the works as Sen. Schatz does not represent the affected area (the one co-sponser, Sen. Rockefeller (D,WV), does however) and neither Schatz or Rockefeller made a floor speech about the introduction of the bill. The if the bill would have been specifically targeted at this type of spill, they missed a great press moment by not giving such a speech.

Unless there is some major objection to this bill by the chemical industry (and I don’t really see that happening) this bill could probably pass in the Senate in one of those unanimous consent procedures that relatively minor legislation is addressed by that body. It would be more appropriate, however, if this language were added to EPA authorization legislation.

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