EPA’s “Anti-Environment” Regulation and CERCLA issues.

 

“The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. ” EPA, Superfund: CERCLA Overview, https://www.epa.gov/superfund/superfund-cercla-overview While the space allotted to this comment does not permit a thorough discussion of CERCLA’s history, EPA discusses the many chemical spills that led to CERCLA and includes computerized graphics at this address: https://www.epa.gov/superfund/superfund-history

The EPA’s numerous CERCLA regulations are in print in the CFR. Electronic versions can be found at https://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR (official) or https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=d5cf8817453753f37820f1e458cfd52a&ty=HTML&h=L&mc=true&n=pt40.30.307&r=PART (unofficial, but more current).

The adoption or amendment of numerous EPA regulations require good scientific data including private medical data protected by privacy laws such as HIPAA, as well as data that is private and or difficult to reproduce for other reasons (for example, endangered wildlife surveys that may not be able to be repeated without impermissibly harming the wildlife or studies that require access to private land).

Examples of such good data and studies that led to CERCLA and/or the related regulations include: https://www.health.ny.gov/environmental/investigations/love_canal/lcreport.htm
https://www.health.ny.gov/environmental/investigations/love_canal/docs/report_public_comment_final.pdf
https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html
http://www.gendisasters.com/new-jersey/13273/logan-township-nj-chemical-explosion-dec-1977

As an example of a regulation that may not have been adopted if the proposed regulation was in effect, 40 CFR Part 355 Sub Part C Section 355.33 provides:

§355.33   What release quantities of EHSs and CERCLA hazardous substances trigger the emergency release notification requirements of this subpart?
The release of a reportable quantity (RQ) of an EHS or CERCLA hazardous substance within any 24-hour period triggers the emergency release notification requirements. RQs for EHSs are listed in Appendices A and B of this part in the column labeled “reportable quantity.” RQs for CERCLA hazardous substances are listed in Table 302.4 of 40 CFR 302.4 in the column labeled “final RQ.”
Obviously, any revision of the rule or of the RQs listed in “Table 302.4 of 40 CFR 302.4 in the column labeled ‘final RQ’” would require a good scientific basis. That would include data protected by privacy laws such as HIPAA.

By forcing EPA to ignore such private (and appropriately non-public) data, the proposed anti-environment rule is fiendishly calculated to block the EPA staff from considering the best data available.   As is true with respect to FIFRA, as regards CERCLA, this scheme has at least two devastating flaws.

First, the proposed rule will nonsensically bar EPA from considering the best scientific data available disabling EPA rulemaking. This rule would violate the agency’s common sense and statutory duty to consider the sound scientific data. Put simply, the proposed regulation turns the statutory scheme of CERCLA upside down by forcing to ignore data that EPA can use to prevent Love Canal type disasters in the future.

Second, before EPA approves its proposed regulation, NEPA requires that EPA prepare an EIS. That EIS must include a detailed analysis of each chemical listed in “Table 302.4 of 40 CFR 302.4 in the column labeled ‘final RQ’” Such analysis of each chemical should include: the quantity of the chemical that was stored, used or released on each and every CERCLA site, the number of people living, playing or working near each site, the human toxicity of the chemical, the non-human affect of the chemical on the flora and fauna within wind’s reach of the site, and the the site’s impact on groundwater underlying every site.

Taken alone, each legal flaw is sufficient to compel the conclusion that EPA should reject its proposed “Anti-Environment” Regulation.

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