Abandoned Mines Land Program

The Abandoned Mine Reclamation Fund was established to provide money to states to eliminate the hazards to public health and safety and the environment created by coal mine sites that have not been restored. It is funded by reclamation fees collected from coal mine operators. Contributions made to this trust fund are appropriated by Congress to states with reclamation plans approved by the Office of Surface Mining Reclamation and Enforcement (OSM)-.  Funds may be spent on the reclamation and restoration of land and water resources and related expenses.

In order to insure the stability of the program and to build on its accomplishments, the National Conference of State Legislatures urges Congress to appropriate the entire amount of money annually deposited in the Abandoned Mine Reclamation Fund.

August 2009

Air Quality

The Clean Air Act Implementation

The National Conference of State Legislatures (NCSL) supports the goals embodied in the Clean Air Act Amendments of 1990 (CAAA). The CAAA represent a major step toward addressing important environmental, air quality, and public health issues. NCSL fully supports CAAA goals and urges the U.S. Environmental Protection Agency (EPA) to proceed diligently with full implementation of the law to achieve clean air for our citizens. It is essential that Congress and the EPA fulfill their responsibilities to facilitate implementation by the states.

NCSL makes the following recommendations:

• Implementation of the CAAA is the responsibility of the states, who have a wealth of experience in implementing control programs. NCSL encourages Congress and the EPA to pay particular attention to the voices of that state expertise and experience.
• Communication with state legislators is of utmost importance because only state legislators can enact enabling legislation for state programs and appropriate state funds. Congress and the EPA should regularly and directly work with state legislators during federal action on air quality issues.
• EPA should work closely with states to ensure states have all regulations, technical assistance and funding necessary for compliance.
• Federal grants authorized under the CAAA provide financial resources to the states for development and implementation of air quality programs and other clean air responsibilities. Congress and the EPA must ensure that states continue to receive adequate funding to cover all costs of program management including monitoring.
• Because the states have existing air pollution control programs to administer with current federal funding, any new air quality programs or responsibilities mandated by Congress or EPA should be accompanied by additional federal funding.
• The CAAA contain many sweeping and general mandates which will involve the exercise of broad discretion and interpretation by the EPA for their implementation. NCSL urges EPA to provide as much administrative flexibility as the law allows in order to achieve clean air goals in the most cost effective and efficient manner.
• Cost-effectiveness should be permitted as a factor in state selection of transportation control measures and emissions control strategies.
• Numerous sections of the CAAA require the EPA to develop regulations and technical guidance for the states to follow in their implementation process. The regulations and guidance are essential to state efforts to implement complete and adequate state programs that fully comply with the CAAA. Often the EPA is very late in publishing regulations and technical guidance for state programs and responsibilities. Such delays leave little or no time between the publication of the documents and the statutory deadlines for state compliance. NCSL urges EPA to meet all deadlines for publication of documents required under the CAAA. NCSL urges Congress to amend the law to replace statutory deadlines for state action with language that provides a specific time period for state compliance after document publication.
• NCSL urges EPA to act expeditiously to enact the required regulations necessary to reduce emissions from federally preempted sources.  Failure to act to require emission reductions from federally preempted sources can impede a state’s ability to achieve attainment in some areas despite any and all actions available to a state in development of their state implementation plans.
• EPA should provide training opportunities for states to help develop the skills and understanding needed to properly implement the CAAA. In addition, EPA should provide informational resources to help the public understand its role in achieving CAAA goals.
• To address ozone nonattainment problems, the CAAA require significant nitrogen oxide (NOx) and volatile organic compound (VOC) emission reductions to be obtained from both stationary and mobile sources. Since any reductions that are not obtained from mobile sources must be obtained from stationary sources, Congress and EPA should take maximum advantage of tools and strategies to reduce emissions from mobile sources including but not limited to promoting alternative fuels and encouraging strict exhaust standards for light duty vehicles.
• Federal highway legislation should be made consistent with CAAA objectives. The EPA and the Department of Transportation (DOT) should work together to ensure coordination of federal policy.
• NCSL urges the adoption of national energy, transportation and other policy that emphasizes energy conservation in order to help achieve the goals of the CAAA. This should include strengthening of emission standards for automobiles as technologies improve, more energy-efficient lighting, buildings, and transportation, and more research and use of alternative forms of energy.
• NCSL urges the federal government to expeditiously apply the same CAAA requirements to federal facilities and motor vehicle fleets that are required for state facilities and fleets.

Sanctions

• States should not be sanctioned for non-compliance if state's failure to comply was the result of EPA's failure to adhere to CAAA deadlines for promulgation of regulations or technical guidance that provide details and requirements of state programs.
• EPA should have the authority to waive sanctions on states that EPA determines are making reasonable good faith efforts to comply with CAAA requirements and deadlines.

Motor Vehicle Inspection and Maintenance

• States should be granted flexibility to design inspection and maintenance (I/M) programs that achieve air quality targets and should receive full credit for emissions reductions those programs achieve.
• Congress and EPA should not require the states to use specific I/M technologies. Such rigid federal requirements may fail to account for technological advances in emissions testing programs and equipment.  

Low Emission Vehicles and Zero Emission Vehicles

• EPA should maintain national Low Emission Vehicle (LEV) standards, referred to as the 49-state car, that are stricter than the law requires. States should be allowed, but not required, to adopt Zero Emission Vehicles (ZEV) requirements.  

Transportation Conformity with State Air Quality Plans

• NCSL supports the principles underlying transportation conformity provisions of the Clean Air Act that requires new or revised state transportation implementation plans (TIPs) to conform to the purpose of state air quality plans, also referred to as state implementation plans (SIPs).
• Adequate funding should be made available to cover the cost of the resource-intensive requirements for development, revision and implementation of conforming TIPs.
• In evaluating the emissions budgets submitted by states, EPA should ensure state flexibility in balancing the burden of reduction among all air pollution sources.
• Conformity requirements should be limited to nonattainment areas and areas at risk of becoming nonattainment.

August 2009

Alternative Fuels and Alternatively Fueled Vehicles (Joint with Agriculture and Energy Committee)

The National Conference of State Legislatures urges the federal government to encourage an increase in the research, development and promotion of alternative fuels derived from domestic sources and alternatively fueled vehicles, including their commercial production and use, and to devote federal funds to evaluate the environmental and economic impacts of alternative fuels and alternatively fueled vehicles. Alternative fuels and alternatively fueled vehicles can reduce the level of toxic and other emissions from vehicular use, reduce our dependence on imported oil, improve our national security, help to balance our trade deficit and help cities, counties and local governments comply with the Clean Air Act Amendments and other legislative mandates. This research, development and promotion of alternative fuels and alternatively fueled vehicles should have as its primary purposes reducing the level of air pollutants and other emissions, reducing U.S. dependence on foreign oil, and providing a low cost, reliable energy source.

The Clean Air Act Amendments (CAAA) attempt to address the issue of air quality by requiring states and regional authorities to develop comprehensive plans to control air pollution. A significant number of metropolitan areas in the United States have been identified by the U.S. Environmental Protection Agency (EPA) as not meeting health based standards for carbon monoxide, nitrous oxides, ozone and sulfur oxides, particulates and other pollutants. According to the EPA, much of the pollution in these nonattainment areas can be directly traced to mobile source emissions. By themselves, traditional methods apparently are no longer capable of effectively ameliorating the increasingly negative impact of these emissions. As a result, NCSL recommends the exploration and evaluation of all forms of alternative domestic fuels and alternatively fueled vehicles in order to reduce the incidence of toxic air emissions. NCSL recommends caution in   promoting the replacement of traditional fuels  with alternative fuels that could result in other pollution problems.

NCSL supports a federal Clean Alternative Fuels program that includes but is not necessarily limited to methanol, ethanol, or other alcohols, reformulated gasoline, ultra-low sulfur diesel, biodiesel, natural gas, liquefied petroleum gas, and hydrogen or other power source (including electricity).  However, NCSL recommends that this program take into account other uses of source products, i.e. grains, when making recommendations for fuel usage or setting new national standards.

NCSL is concerned that the further development of alternative domestic fuels, alternatively fueled vehicles and conservation devices will depend, at least in the near future, upon the continued availability of tax credits designed to encourage investment in these technologies.

While tax credits and exemptions are important to the creation of an alternative fuels market, NCSL recognizes their negative fiscal impact on the overall federal budget, as well as inequities in the Highway Trust Fund. Consequently, NCSL urges Congress to encourage the use of alternative fuels through incentives that will increase the production and development of new vehicles with alternative fuels capability and vehicle conversion, in lieu of alternative fuels tax exemptions. Federal tax credits available to alternative fuel production facilities should be extended for a limited time. Congress is urged to phase out the tax credits for the research and development of alternative domestic fuels and alternatively fueled vehicles when the technology or changing policies relating to petroleum-based fuels makes the product competitive in the market place. In an effort to mitigate the state-specific impact of these and other federal policy changes, states should retain taxing authority to ensure that alternative fuels are competitively priced.

NCSL believes that the development, promotion and use of alternative fuels derived from domestic sources and alternatively fueled vehicles is consistent with the primary goals of a national energy policy that calls for the most efficient use of energy, a comprehensive energy conservation strategy and the development and promotion of alternative renewable energy sources.

NCSL believes that there should be no warranty invalidation incurred by a provider if ASTM standards are met for the fuel and the vehicle is approved for that fuel.

In areas required under CAAA to utilize reformulated oxygenated fuels, selection of alternative fuel additives should be left to the discretion of the affected state, where costs, safety, and economic and environmental impacts can be considered.

With regards to fuel additives, NCSL recommends the following:

• Prior to approval of fuel additives, U.S. EPA should examine public health benefits and cross-media implications.
• Any fuel requirements should be in the form of performance-based goals. No specific chemicals or other additives should be prescribed in order to maximize state flexibility to achieve the goals.
• Any fuel requirement should be based on anticipated air quality benefits.

August 2009

Aquatic Nuisance Species

One of the most significant threats to biodiversity in the nations coastal and estuarine habitats as well as inland navigable waters is the introduction of nonindigenous aquatic invasive species (AIS) into the ecosystem. The introduction of AIS, also know as aquatic nuisance species (ANS), through intentional or accidental means establishes a stress on ecosystems that can result in the decline of native species population, serve as a impediment to species recovery and pose a long-term economic and ecological health of the area.  The control and management of these AIS in such areas as the Great Lakes, Mississippi River Watershed, Everglades, and San Francisco Bay/Inland Delta costs the economy billions of dollars annually.

NCSL commends Congress and the federal government’s recognition of this problem and efforts to address it through enactment of the Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990 (P.L. 101-646) and the National Invasive Species Act of 1996 (P.L. 104-332).  The establishment of the Aquatic Nuisance Species Task Force is in accordance with NCSL’s belief that federal water policy should make use of a coordinating body to improve efforts to administer the government’s responsibilities as carried out by the U.S. Fish and Wildlife Service, U.S. Coast Guard, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, and the National Oceanic and National Oceanic and Atmospheric Administration.

As a part of their authority and responsibility for water resources management individual states have moved forward with state based programs to combat aquatic nuisance species and their introduction into state waters. These programs supplement the national activity and are indicative of an ongoing need for resources and action to reduce the threat and minimize the impacts of aquatic nuisance species on U.S. waters.

To that end, NCSL calls on Congress to:

• reauthorize the Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990;
• provide for improved means for controlling the introduction of aquatic nuisance species;
• increased the support for national efforts to control and manage aquatic nuisance species; and
• increase research and technical assistance resources available to federal, state, and local officials.

August 2009

Brownfields Redevelopment

Brownfields programs are intended to revitalize former industrial and commercial sites that may be contaminated, unused and often abandoned, when the contamination is determined to be a substantial obstacle to the redevelopment of the sites. There are thousands of domestic brownfields sites, many of which have housed thriving industrial enterprises located in areas that are now economically disadvantaged. Today, many of these sites are a burden on the local economy and can be a threat to public health.

Expansion or redevelopment of brownfield sites is often complicated because of the actual or perceived presence of a hazardous substance or petroleum released into the surface or subsurface soil or ground water that poses a risk to human health and the environment. Often these sites are not developed because new users fear the potential liability associated with residual hazardous substances or petroleum contamination. To avoid potential liability, new industrial and commercial projects often are located in "greenfields" sites.

Brownfields redevelopment can revitalize communities and businesses while discouraging urban sprawl. Redevelopment of brownfields sites provides real opportunities to revitalize communities, create new jobs, increase the tax base and facilitate managed growth.

NCSL believes that federal legislation, statutes and regulations should:

• Define brownfields so as to separate them from those Superfund sites or sites with sufficient contamination to be concerned about potential future off-site impacts or potential future use.
• Allow states to determine whether or not a site is a brownfield against a Federal statutory definition and, if a state determines that a brownfield site is free of contamination or can be cleaned enough for a designated, deed restricted use, a state should be authorized to immunize a property owner or developer from liability or a future cleanup responsibility. That state action should immunize the developer from future federal cleanup liability if that party did not contribute to contamination.
• Acknowledge that States have primary responsibility for brownfields redevelopment programs. States should be allowed flexibility to determine all aspects of the state brownfields programs in order to tailor programs to meet their unique needs. For example, some states may set flexible cleanup standards tailored to the future use of the redeveloped property.
•  Grandfather existing state programs. In addition, federal legislation should maintain the memorandums of agreement relating to brownfields between states and the U.S. Environmental Protection Agency (EPA).
•  Provide states with federal financial assistance, including funds that may be used as grants or as capitalization money for state revolving loan funds, for brownfields and brownfields redevelopment programs. To the extent federal financial assistance is provided for brownfields programs, states should be allowed flexibility regarding expenditure of these funds.
• NCSL opposes efforts to incorporate brownfields legislation with other substantive changes to the Federal Superfund law.  Brownfields legislation should be free standing and relate only to the narrow purpose of allowing states to redevelop abandoned, underutilized industrial and commercial property for which there is minimum likelihood of off-site contamination or endangerment of health and welfare of subsequent users and not used as a means to achieve other Superfund related agendas.

August 2009

Children's Environmental Health

NCSL recognizes that children are uniquely vulnerable to environmental exposures because they are in a dynamic state of growth, with many vital systems not fully developed upon birth. As these systems develop through childhood, environmental toxicants can disrupt this process.

Children may have greater exposures to environmental toxicants than adults because children drink more water, eat more food and breathe more air than adults on a pound-for-pound basis, thus experiencing greater exposures to environmental toxicants if they are present.

Normal developmental behaviors such as hand-to-mouth activity and crawling on the ground or floor increase the exposures of children through ingestion and contact with dusts and residues.

The inability of children to metabolize, detoxify and excrete certain toxicants often leaves their bodies less able than adults to cope with environmental toxicants and thus more likely to be adversely or permanently injured.

Federal environmental health regulations are largely based on data from research on adult humans or animals. NCSL believes these regulations require more and better data about the unique exposure patterns and sensitivities of children. There are many chemicals in commercial and residential use, whose toxicity, especially in children, is poorly understood at best.

Recognizing the need to develop environmental protection programs for children, especially those in the most vulnerable populations such as low income and racial/ethnic communities, NCSL supports consideration of the sensitivity of children to environmental contamination in all federal environmental policy, legislation and regulation and supports policies that will result in reducing the exposure of children to environmental hazards.

NCSL supports federal funding for health research on the effects of exposure of children to environmental toxicants, and consistent reporting and tracking of birth defects, cancer, and other relevant diseases in children.

August 2009

Clean Diesel

Over the past decade, progress has been made with curbing diesel fuel emissions. The U.S. Environmental Protection Agency’s (EPA) Clean Air Non-road Diesel Rule and a 2000 rule requiring the reduction of sulfur levels in highway diesel fuel stand as two significant examples. State anti-idling and state diesel inspection and maintenance programs,  EPA’s National Clean Diesel Campaign and Clean School Bus USA program, as well as various private sector initiatives further serve as critical examples of efforts that are of enormous benefit to the public health, the economy and the environment and assist states with meeting Clean Air Act ambient air quality standards.

To produce even greater environmental and health benefits and to assist states with managing local nonattainment problems, the National Conference of State Legislatures supports the priority given to diesel retrofit projects under the Congestion Mitigation and Air Quality Program.  NCSL believes that, due to the cost-effectiveness of diesel retrofit projects, funding should be substantially increased and provided for the Diesel Emissions Reduction Program administered by the EPA and that this funding should not jeopardize the availability of retrofit funding through federal supplemental environmental projects. NCSL further believes that the EPA should maximize efforts to ensure that diesel-fueled vehicles entering the United States from bordering and other foreign countries should meet or exceed U.S. and state environmental standards.

August 2011

Cradle to Grave Electronics Management (Joint with Communications, Financial Services and Interstate Commerce)

NCSL has long recognized that technology and technology equipment are important and essential to US participation in the global economy.  NCSL has long recognized the need to manage solid waste in an environmentally, economically, and politically acceptable manner.  As outlined in its Solid Waste Management policy, NCSL believes that source reduction and recycling offer the most economically and environmentally sound methods for dealing with a significant percentage of the solid waste stream.

August 2009

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Environmental Federalism

The National Conference of State Legislatures (NCSL) urges the federal government to renew its commitment to environmental protection and the state-federal partnership for environmental protection.

State governments, acting in partnership with the federal government, play an indispensable role in our mutual effort to protect natural resources and combat environmental degradation and pollution. State implementation of federal law is the cornerstone of our current system of environmental protection. States are particularly dependent upon federal pollution control laws to address the interstate migration and affects of pollutants. Given the increasing trend of delegating more authority to the states, it is essential that the federal government not abandon its commitment to uniform minimum federal standards, the state-federal partnership and the very laws and agencies that guarantee the success of our partnership.

In furtherance of the above, the following principles should guide NCSL's federal lobbying efforts with respect to the state-federal environmental partnership:

• The present level of commitment and funding for natural resource and environmental protection efforts should be enhanced; specifically, the federal government should prevent efforts to further erode its commitment to provide technical support, research and financial assistance to states and avoid further cost shifts to the states;
• The federal government should provide funding to the states in the form of block grants that provide for maximum state flexibility to use federal monies in the manner which they deem proper and in a manner which is consistent with their intended purpose;
• Uniform minimum federal standards for environmental protection should be preserved and strengthened;
• Statutory authority for states to enact state environmental standards that are more stringent than their minimum federal counterparts should be maintained and renewed;
• Within the framework of uniform minimum federal standards, states should have maximum flexibility in devising approaches and methods for obtaining compliance with such standards. The federal government should adopt performance-based standards which prescribe the end to be accomplished and leave the means of obtaining the end up to individual states. In return for this new level of autonomy, the federal government should adopt a system of performance audits and objectively quantifiable benchmarks that would allow the federal government to certify state performance results in meeting uniform minimum federal standards;
• There should be consistent, uniform and vigorous federal enforcement of environmental laws to deter non-compliant behavior and to reward those who are acting in compliance with such laws. The federal government should continue its present role of overseeing the efficacy of state efforts to enforce uniform minimal federal environmental protection standards. States have a compelling interest in the uniform application and enforcement of federal laws in order to prevent pollution havens and to prevent states with lax enforcement from obtaining unfair economic advantages;
• In light of the Supreme Court rulings in Seminole Tribe of Florida v. Florida and Alden v. Maine, which suggest that citizens will no longer be able to sue states in federal court for violations of federal environmental protection laws, the federal government needs to allocate adequate resources to ensure compliance among the states.
• Cost-benefit analysis should be performed in environmental decision making. Sound public policy decision making demands that benefits should be proportionate to costs, after factoring in the totality of the circumstances. However, cost-benefit analysis should not be the only determinative factor in any environmental decision making process. Rather, such an analysis should be one of the many tools that inform decision makers in formulating sound public policy. In the face of uncertainty in devising analytical methods, any default assumptions that are employed should favor enhanced environmental protection.
• In order to finance environmental protection efforts, Congress should create funding mechanisms that consistently generate revenue solely for such uses. All monies from such funds should be fully appropriated for their intended uses. The Land and Water Conservation Fund (LWCF) provides an example of how a specifically earmarked environmental protection fund could operate. In 1965, Congress created the LWCF to finance America's investment in its public lands. The LWCF works by using a percentage of offshore-oil-lease money from federally owned lands to fund conservation efforts. The idea is simple: use money generated from resource extraction for resource protection. Without using any general public taxpayer monies, LWCF monies have financed forty years of resource protection. This type of funding model should receive greater application;
• NCSL supports a citizen's right to access public information. In an open democracy, the public should have access to publicly held information. NCSL supports "right-to-know" laws and other statutory and regulatory mechanisms that readily provide public access to public information while acknowledging the need to balance this right with security concerns relating to the distribution of sensitive material such as water security information regarding water infrastructure and sources of supply; finally,
• NCSL opposes any attempt to preempt or circumvent the authority of state courts and local administrative bodies. Proposed federal legislation that would centralize decision-making in the Federal courts for compensation for land use and other regulatory actions represents a major threat to our Constitutional system of federalism. Improving the efficiency of the state and local judicial process is an issue for state legislatures, not Congress. Land use and regulatory policy must remain a primary responsibility of the states. The authority of state courts must be preserved.

August 2010

Federal Facilities Cleanup (Joint with Agriculture and Energy Committee)

Federal and state governments are together faced with managing large quantities of hazardous, radioactive, and mixed (a combination of hazardous and radioactive materials) waste and materials that are located at numerous federal facilities throughout the United States. Some of these wastes and materials have been improperly handled over the years, necessitating both waste management and environmental restoration at these facilities. These facilities were crucial to the nation's production of nuclear weapons and overall defense strategy, and while significant progress has been made, there is a continuing need for conscientious and thorough environmental reclamation. These facilities, which belong to the U.S. Department of Energy and the U.S. Department of Defense, each have specific environmental needs that must be addressed.

Radioactive and hazardous wastes have been generated since 1942 by the development, production, and maintenance of nuclear warheads by the Department of Energy's network of nuclear weapons production facilities, including its national research labs. Even as waste minimization activities are pursued, substantial amounts of waste continue to be generated, as the environmental restoration effort progresses. This includes transuranic waste (TRU), which the Department of Energy  is currently disposing of at the Waste Isolation Pilot Project (WIPP) near Carlsbad, New Mexico, as well as the high-level radioactive waste generated by the production of nuclear weapons. This high-level waste will be disposed of in the same repository that the Department of Energy will operate for the disposal of spent fuel from commercial nuclear power plants. Significant amounts of low-level radioactive waste and mixed wastes were also generated from nuclear weapons production, as well as general maintenance activities, at military bases. This waste also requires disposal.

Some wastes continue to be stored in inadequate interim storage facilities and pose potentially serious long-term threats to public health and the environment. There are also safety and equity concerns surrounding the transportation and ultimate disposal of these wastes. The states insist that the cleanup and disposal programs advance in a safe, cost-effective and expeditious manner.

Other federal facilities that have generated waste and may remain unsafe for humans include military bases and formerly used defense sites operated by the Department of Defense. States are also committed to the cleanup and conversion of closed military bases to other beneficial uses as soon as possible. NCSL encourages the Department of Defense to lessen the impacts of closing these facilities by entering into partnerships with business and other private interests in order to turn them into sites of commerce and development.

In 1992, Congress enacted the Federal Facilities Compliance Act (FFCA) which waived the doctrine of sovereign immunity and allowed partial state environmental regulation at federal facilities.

NCSL firmly supports the principles of the FFCA. Furthermore, NCSL believes that:

• Federal, state and local environmental laws have been enacted to protect health and the environment.  Federal facilities must comply with and be held to the same standards established by these laws.  Lower standards for federal facilities are unjustified.
• The federal government should be responsible for the cleanup of federal facilities. There should be coordination among the Department of Energy, Department of Defense, and the U.S. Environmental Protection Agency with state regulatory agencies to insure that the cleanup of these facilities is properly and efficiently managed.
• The federal government should be subject to all state laws governing the cleanup of hazardous and radioactive waste materials.
• Department of Energy facility sites should continue to be incorporated into the National Priority List according to the severity of the risk they pose, but cleanup should be independent of Superfund monies.
• The Department of Energy should continue to use the contract review process to provide effective oversight and to evaluate integrated contracts for cost accountability
• Congress should provide for sufficient long-term funding for the effective and timely cleanup and disposal of existing and future wastes. Cost -effective solutions must be developed and implemented by federal agencies to meet cleanup standards that protect human health and the environment. Congress must fund and federal agencies must implement an aggressive research and development program to develop and to put into place the technology necessary to address the cleanup situation at all federal facilities.
• Cleanup work must be accomplished in strict compliance with federal facility agreements, federal laws and regulations. Congress should give state and federal regulators complete enforcement authority necessary to ensure such compliance. For those sites that do not require extensive cleanup, a future use and owner should be identified as quickly as possible in order to return the affected land to productive use.
• States, Indian tribes and affected units of local government must have a continuing, substantive role in the planning and oversight activities of the waste-management effort. The Department of Energy must recognize that cultural resources and artifacts may be present on DOE sites, and must partner with affected Indian tribes to identify and mitigate impacts to those resources. Additionally, the general public must also be given the opportunity to be involved in the decision-making process.
• Whenever possible, pollution prevention practices should be followed and recovered materials should be recycled or reused.
• As it will be necessary for waste to be transported across state-lines to waste storage and disposal facilities, all transportation must be done in compliance with state and federal safety procedures for the shipping of hazardous, radioactive, and mixed wastes. States must play an integral role in evaluating the safety of a particular method of transportation and must be continually informed about the status of waste movement and storage.

U.S. Department of Energy

Furthermore, NCSL recognizes the work of the Department of Energy's Office of Environment Management in developing the Five Year Strategic Plan, that includes comprehensive, strategic plans to characterize and prioritize the long-term cleanup and management of wastes at all Department of Energy facilities. NCSL urges the continued implementation of these accelerated cleanup plans, and supports the following:

• A firm commitment to a cleanup schedule, including aggressive, but realistic milestones for all activities.  Action should be taken to manage federal radioactive, hazardous, and mixed waste sites as soon as possible, but safety and quality cleanup must remain the priority.
• Federal cleanup efforts must be conducted in full consultation with the affected states, Indian tribes and units of local government. Cleanup efforts should begin with site-specific plans which can then be used to develop a national plan for future cleanups. An ongoing dialogue with the states should be maintained and institutionalized to ensure effective state involvement in critical cleanup related decisions. 
• Federal cleanup efforts should enforce priorities and meet milestones set forth in federal-state consent orders regarding the cleanup of specific sites.
• A fully funded and comprehensive long-term stewardship program for all of the Department of Energy sites must be developed to ensure that communities are protected in perpetuity.
• Funding designated to cleaned and closed “accelerated site cleanups” must be reallocated to other sites for cleanup.

NCSL acknowledges the Department of Energy’s Performance Based Project Management with the goal of expeditiously and significantly improving program performance.  NCSL supports improving program performance and risk reduction activities and supports the following:

• The need for performance standards that are both consistent and effectively applied.
• The creation of a comprehensive risk-based cleanup strategy that reduces risk to human health and the environment.  This strategy should be both clear and technically defensible.
• Department of Energy adherence to all National Environmental Policy Act processes, specifically the public involvement requirements.

Waste Isolation Pilot Plant

In accordance with Public Law 96-164, the Department of Energy designed the Waste Isolation Pilot Plant (WIPP) as the first permanent repository for defense generated transuranic (TRU) waste.

The Waste Isolation Pilot Plant Land Withdrawal Act (PL 102-579), passed by Congress in 1992, allows for further testing and experiments to determine the viability of radioactive waste disposal in deep geologic salt formations as recommended by the National Academy of Sciences in 1955.

NCSL urges Congress and DOE to:

• Appropriate adequate funds and direct the Department of Energy and the Environmental Protection Agency to expedite their respective responsibilities under Public Laws 96-164 and 102-579.
• Implement through DOE, a compensation program that recognizes equity considerations for state and local governments hosting a TRU waste repository and the federal government's obligation to provide such compensation.
• Provide assistance to the host community to subsidize and maintain an independent environmental monitoring and analytical laboratory to ensure public confidence and safety (i.e., Carlsbad Environmental Monitoring and Research Center).
• Provide assistance to the state of New Mexico and other affected states for highway maintenance and improvements, emergency response training and equipment, and public education.
• Provide assistance to corridor states for transportation-related impacts.

U.S. Department of Defense

NCSL will continue to work with the federal government in the development of site-specific cleanup plans. State legislators are interested in the timely cleanup and conversion of bases subject to closure to lessen the financial impact on the states and local communities from the closure of military facilities. The Department of Defense should establish an aggressive cleanup schedule for military facilities or develop options for the transfer of land to new owners who agree to cleanup the site before developing it for future use. The Department of Defense and any future owners should be subject to all state laws governing the cleanup of hazardous and radioactive waste materials. All cleanup efforts should be conducted in full consultation with affected states and local communities.

August 2010

Federal Chemical Policy Reform

Citizens expect to be protected from toxic chemicals in their homes, workplaces and schools. Unfortunately, the federal system for regulating chemicals is outdated. The Toxic Substances Control Act (TSCA) signed into law over three decades ago, has not kept up with current scientific knowledge on toxic chemical impacts, particularly impacts to vulnerable populations such as children.   State legislatures have become more active, debating and enacting chemical policy legislation.  As a first step toward implementing a national modern, comprehensive chemicals policy that is in line with current scientific knowledge, the National Conference of State Legislatures calls on Congress to hold oversight hearings on TSCA to identify how it can better help states and federal agencies assess human and environmental hazards of industrial chemicals and reduce threats.

August 2009

Hazardous Waste Management

Over the past two decades, the adage "out of sight, out of mind" has given way to a national program that seeks to encourage source reduction, high-technology treatment, and secure disposal of hazardous wastes. Congress enacted the Resource Conservation and Recovery Act of 1976 (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), and subsequent amendments and reauthorizations of this initial legislation to implement its national program. Such legislation requires the treatment, storage and disposal of hazardous wastes and cleanup at contaminated sites so as to minimize the present and future threat to human health and the environment. Despite this national program, hazardous waste continues to be a significant environmental problem.

The National Conference of State Legislatures (NCSL) believes that the following principles must be accommodated in crafting a national solution to hazardous waste management:

• The federal government has an appropriate role to play in crafting coherent solutions to abandoned and inactive hazardous waste sites. Congress should continue to finance hazardous waste site cleanup efforts through national, broad based financing mechanisms that uniformly spread the costs of such cleanup efforts over a national revenue base. Congress must recognize that states acting alone do not possess the ability of the federal government to impose such costs nationally.
• Because publicly owned natural resources are victims of improper hazardous waste disposal, these valuable assets must be safeguarded and in many cases restored.
• Because the current system discourages recycling by regulating many byproducts as hazardous waste, a system for regulating hazardous materials destined for recycling should be established.
• Other methods for dealing with hazardous waste such as source reduction, pollution prevention, reuse and recycling should be encouraged and developed.

The federal government must promote measures that will expedite actual site cleanups and site construction activities. Consequently, NCSL believes that any solution to our hazardous waste problems must include the following:

• The U.S. Environmental Protection Agency (U.S. EPA) should be required to adopt policies that encourage both the hazardous waste content of products and industrial hazardous waste by-products be kept to a minimum, and that hazardous waste materials be reused, recycled or made non-hazardous whenever possible.
• The U. S. EPA should continue to fund, develop and improve hazardous waste risk assessments, toxicological profiles of priority pollutants found at Superfund sites, and consequent long term health and environmental impacts data. The work of the Agency for Toxic Substances and Disease Registry (ATSDR) should be supported and expanded. Such studies and work should be funded through disbursements from the Superfund Trust Fund or through appropriations from the general revenue fund. Any information gathered from either federal or private sources should be subject to peer review and made available as needed.
• The federal government should be required to adopt hazardous waste reduction policies applicable to federal activities and facilities to reduce waste and develop new and improved waste elimination technologies. Such policies should include federal procurement guidelines that permit suppliers to modify their manufacturing processes to accommodate pollution prevention practices.
• Congress should adopt policies that promote the availability of affordable environmental liability insurance, including economic incentives for industry to establish its own voluntary insurance pool or insurance fund.
• States should be allowed flexibility in devising their hazardous waste management plans and regulations, including the setting of priorities.
• The federal government must collect and disseminate to the public information on chemical storage, use and disposal practices by government and industry.
• Federal hazardous waste management laws should be vigorously enforced.
• The importation of hazardous waste from foreign countries should be controlled through treaties and other agreements.
• Federal policies and agreements that decrease the dumping of hazardous waste in developing countries should be established.
• Health effects studies conducted by the federal government should be comprehensive and based on established exposure standards and measurements and monitoring methodology to be admissible as evidence in victims' compensation court cases.

August 2011 

Management of Federal Lands

In 1976, Congress passed the Federal Land Policy Management Act (FLPMA) reversing the 200-year national policy of conveying public lands to private ownership; the Act provides for perpetual federal retention unless it is in the national interest to dispose of a particular parcel. Federal agencies are currently reviewing the uses of lands under federal jurisdiction.

Ninety-three percent of all lands under federal jurisdiction in the United States are located in the West, and over sixty-three percent of the land area in the twelve western states is federally controlled. Further, many federal and non-federal lands are intermingled. This limits the western states' prerogatives in managing the uses of their own land and further limits the potential base of the states' economies. Units of governments whose property tax revenue bases have been reduced by large federal land holdings also require adequate funds to help make up the shortfall. With perpetual federal retention, Congress must assure state payments in lieu of taxes in perpetuity.

Federal agencies are seeking to designate wilderness areas under the Federal Wilderness Act. The decisions on the potential inclusion of lands in the National Wilderness Preservation System or other designated use may affect the potential for state growth, energy development, recreation opportunities, revenue, and other state concerns.

Federal-state relations regarding federal agency land planning vary widely and suffer from a lack of specificity on how and when cooperation should take place. No meaningful mechanism currently exists in the wilderness review process for the involvement of legislatures as the state policymaking bodies.

The National Conference of State Legislatures urges all federal agencies involved in the management of public lands to incorporate within their policies and regulations provisions for a continuous and cooperative involvement of state governments in public lands policy and public lands management. Furthermore, NCSL supports remedial legislation which will guarantee a state role in public lands management and establish procedures for designations, disposition, or use of certain public lands found to be excess property.

Among the many functions of the federal agencies which have public lands management responsibilities are wildlife management, endangered species protection, wetlands protection, meeting the open space requirements of growing population, environmentally sound forest and rangeland management, payments-in-lieu-of-taxes to local governments, and the administration of mineral development impact loans. Increasing pressures on rangeland have made better management imperative. Federal agencies managing federal land should assure that uses both on-site and off-site do not cause adverse environmental impacts on the federal land or other adjacent lands or waters and provide special protection for wetland resources in light of the goal of no loss of wetlands.

Increasing energy development will impose heavy burdens on federal agencies to process lease applications properly and expeditiously and provide for protection of the environment. As Congress considers funding for federal agencies with public land management responsibilities, NCSL recommends that Congress assure appropriations sufficient for the full and proper execution of the agencies' legislative mandates.

If a federal wilderness designation occurs, state "inholdings" in wilderness areas should be purchased, or exchanged with lands of equal or greater value outside of these areas as designated by FLPMA.

August 2010

National Water Resources Policy

The national water policy, which has evolved over the past 30 years, exists today as a cumbersome and poorly coordinated effort to manage our nation's water resources. Jurisdiction for federal water projects is scattered throughout agencies of the federal government and committees of Congress. The National Conference of State Legislatures sees a need for clearer, more coordinated and more consistent federal policies. These policies, however, should recognize and build upon the constitutions, statutes, policies and programs of the states as the fundamental basis for a truly national effort toward better water resources management. The federal government should recognize that water resources policy can and must be developed at the state level. The appropriate role for the federal government should be to provide technical, research and financial assistance to the states at their request.

Historically, the states have developed water resources management programs through legislative action, judicial deliberations and financial contributions. Therefore, the primacy of the states' role deserves special recognition in federal policy and the states should have the policymaking prerogative. An effective state-federal partnership cannot be expected to result from a revision of federal policies unless states are given the opportunity to review and develop their own.

However, the nature of federal activities in water resources management, involving direct actions by federal agencies, an array of narrow categorical grant programs for specific management purposes, and a similar range of regulatory programs has been a major barrier to comprehensive management and appropriate action at the state, local and interstate levels.

NCSL believes that there must be more concerted attention to the need for water conservation, both within and between federal and state governments, to the planning and implementation of water resources development and to water quality improvement. If adequate supplies of this precious resource are to be ensured for future generations, there is much in current practice and policy that must be improved.

NCSL endorses the following principles:

• The states have the primary authority and responsibility for water resources management. Primary authority and responsibility for water resources management functions, including planning, development and regulation, rest with the states and their delegated interstate agencies. Water resources management, wetland protection, coastal zone management, and soil conservation projects should be clearly delineated by Congress as the primary responsibility of the states and their delegated interstate agencies, with federal oversight.
• A national water conservation initiative should be undertaken to encourage water conservation at the federal, state and local levels. Functions such as navigation and flood control and other issues at the prerogative of the state should continue to be shared with the federal government to the degree appropriate. Federal policy must recognize and respect the rights of the states to administer their individual water laws and to manage their water resources.
• The role of the federal government is four-fold: (1) to establish a framework of national objectives developed in cooperation with the states; (2) to provide assistance to the states in the development of programs to meet state needs within such a framework; (3) to be consistent with such state programs to the maximum extent possible when undertaking direct federal actions pursuant to the national interest; and (4) to coordinate agency activities through a national coordinating entity reporting directly to the President and with provision for adequate state and public input.
• The responsibility of the federal government is to establish, in full cooperation with states and other appropriate interests, national objectives for the protection, management, restoration, development, and use of water and related resources to meet national economic, environmental and social objectives and to assist in implementing such policies in federal actions and through assistance and support for state actions.
• The essential steps toward orderly, efficient and balanced water resources management are to recognize the primary responsibility of the state and to put each state in the position to secure, in cooperation with local governments, coherent water management strategies.

Federal policy should be directed toward strengthening the capacity of the state to act as the integrator and manager of all programs affecting the water resources of the state. To do so effectively, states need:

• Realistic and dependable financial support to integrate management activities through expansion of provisions for state assistance;
• Full funding of authorized programs consistent with congressional intent;
• Capable technical assistance, at state request, from federal agencies such as the U.S. Environmental Protection Agency, Soil Conservation Service (SCS), the Bureau of Land Management, the Corps of Engineers, or the Bureau of Reclamation, possessing extensively developed expertise;
• Additional research assistance, at state request, (for example, the water resources research centers established under the Water Resources Act of 1964, or similar legislation) and information on water conserving devices; and
• Assurance that direct federal actions will be consistent with state programs, responsive to national policy, and carefully evaluated against mutually agreed upon standards.

There must be continuity in federal support for water management programs. Effective scheduling of local and state government appropriation processes and personnel recruitment is made extremely difficult by sharp variations in federal funding levels and by the failure to fully fund authorized programs.

Federal actions must be consistent with adopted state and interstate water and related resources plans and programs. A major frustration among regional, state and local water resources decision makers is the problem of securing consistency of federal projects with federally-assisted water planning programs.

• There must be greater flexibility in the entire federal support system for water resource planning and management.
• Federal project evaluation, planning, financing, cost sharing, and cost recovery policies should be reviewed and simplified.
• Project evaluation should promote equal consideration of both structural and non-structural solutions.

Existing federal policies present a bewildering array of planning, evaluation, financing, cost sharing, and cost recovery options for direct federal and federally-assisted water projects and programs. Inequities exist among those who pay for and those who benefit from such projects and programs. Moreover, many existing programs create inherent financial biases which favor certain solutions to water problems over others, sometimes resulting in the approval of programs of only marginal utility. Accordingly, NCSL urges that:

• Cost-sharing policies should be consistent among alternative means for achieving the same purpose. This means uniformity among cost sharing policies for both structural and non-structural alternative solutions to a problem under existing agency authorities and broadening some agency authorities to permit consideration of more alternatives.
• Cost sharing policies should be consistent among federal agencies for the same purposes. There should be no financial grounds for non-federal participants to "shop around" for the best deal.
• The public participation requirements of project planning and evaluation criteria should be aggressively carried out.
• Water conservation must be a fundamental consideration in all future water management programs.

A national water conservation initiative reflecting regional variations, as defined below, must be the cornerstone of national water policy. Water conservation involves the more efficient use of water in: (1) day-to-day uses; (2) resources allocation including conjunctive uses; (3) drought management and response activities; and (4) effective use of seasonal water including storage where necessary. National policy must be flexible enough to accommodate both environmental and economic differences which may vary region by region.

Accordingly, NCSL recommends:

• A national water conservation initiative implemented by the states as a part of their total water management programs with federal financial and technical assistance including a component for evaluation of the true benefits and costs of conservation;
• Encouraging comprehensive management of intermittently available freshwater resources to maximize the availability of surface and groundwater supplies;
• Examining closely the incentives and disincentives for encouraging conservation, recycling and reuse of water such as the practice of “use or lose” water rights; and
• Examining and promoting where feasible the practices of conjunctive use of water supplies.

The federal government currently supports a wide variety of water research programs, both through the individual federal water agencies and through the state water resources research centers created under the Water Resources Research Act of 1964 and coordinated by the Bureau of Reclamation in the Department of Interior. Through those vehicles, important research has been conducted in all phases of water management. However, little coordination exists among these programs and no specific mechanism exists which can focus the water research establishment on the planning and management concerns of the nation's principal water managers---the states.

NCSL recommends that:

At the federal levels, there should be greater coordination among the many mission oriented federal agency research programs by tying them more closely to a national coordination entity; and

• At the state and regional level, require that the research agenda of both the federal agencies and the federally-supported water resources research centers be developed in conjunction with the expressed research needs of the state.
• Congress should recognize state primacy over all water rights within each state's boundaries and bring to closure the debate on the Federal Reserve Water Rights Policy.

August 2010

Native American Water and Fishing Rights 

In a growing number of states, tribes have begun to claim water and fishing rights after these resources have been appropriated for other uses under state law or federal reclamation projects. Because access to water and the fishery resource is vitally important in these states, policy and procedures for determining how to allocate these resources among the competing claims is crucial.

The National Conference of State Legislatures feels the following principles should guide any policy or actions regarding Native American water and fishing rights:

• Disputes over Native American water and fishing rights should be settled through negotiation.
• Resolution of disputes between tribal and non-tribal users should be as fair and equitable as possible. The terms of settlement should consider the legitimate claims and the economic hardships that will be imposed on those who have obtained their rights legally, and also on those who have been denied their rights.
• Procedures should be flexible, to account for the variety of local needs, resources, claims, and relationships among users and claimants.
• Clarification of the extent of Native American rights to water and the fishery resource is necessary for sound water management, for allocation of these resources among competing uses, and for planning future growth and development.
• Procedures for resolving Native American water and fishing rights disputes should encourage communication and cooperation among various users and seek to avoid further destructive confrontations.

Therefore, NCSL recommends that:

• Appropriate agencies and officials should quantify the extent and nature of Native American water and fishing rights.  Only after such quantification can effective resolution of competing claims proceed.
• Where conflicting claims to these resources occur because Native Americans’ claim prior rights to water or fish already appropriated, tribes, states and non-Native American users should seek to resolve the dispute through mediation, and with federal participation as necessary to ensure that states and tribes arrive at an enforceable agreement. Procedures should be implemented, however, to coordinate the process of obtaining approval from Congress of such agreements.
• Congress should enact legislation to provide compensation by the federal government to all owners of legally established water or fishing rights, if those rights are later altered or taken by the United States or Native American tribes, or if the exercise of those rights is precluded by action of the United States courts.
• Tribal governments, which have unabrogated treaty rights to water and fishing resources, should be directly represented on national, state, regional, and interstate water and fishing planning and regulation bodies such as the Interstate Compact Commissions, Interbasin Commissions, River Basin Commissions, and others.
• The federal government should immediately and fully fund authorized projects, where negotiated settlements have been signed among Native Americans, state, local and federal governments.

August 2010

New Source Review (NSR) Program (Joint with Agriculture and Energy Committee)

The National Conference of State Legislatures (NCSL) urges the Environmental Protection Agency (EPA) to reform the NSR program to achieve improvements that enhance the environment and increase production capacity, while encouraging efficiency, fuel diversity and the use of resources without weakening the requirements intended to reduce emissions from new or modified sources of air pollution. Routine maintenance, repair or replacement activities which are not major modifications should not trigger NSR requirements.

August 2011

Oil Spill Prevention, Response and Cleanup

On August 18, 1990 the Oil Pollution Act of 1990 was signed into law. NCSL strongly supports this legislation which maintains a major role for states and does not preempt state oil spill cleanup programs, taxing and enforcement authority, and response funds. NCSL encourages the continuation of this policy during the considerations of future laws or amendments regarding oil spill prevention, response and cleanup.

NCSL supports the full implementation of all provisions of the Oil Pollution Act, particularly provisions dealing with prevention under Title IV, Subtitle A and the development of the national planning and response system. Prevention must be emphasized to assure the avoidance of oil spills. In addition, a comprehensive, adequately funded planning and response system must be implemented to assure the timely and effective containment and clean-up of spills to minimize environmental damage.

NCSL recommends the following:

• Continued efforts toward full implementation of Title IV, Subtitle A of the Act dealing with prevention including, but not limited to, staffing standards, vessel traffic service systems, alcohol and drug policy, double hulls, equipping and inspection of vessels, pilotage requirements, and provisions for navigational safety.
• Adequate funding of the U.S. Coast Guard to assure full implementation of their responsibility under the Act such as periodic inspections of vessels and implementation of the national planning and response system, including, but not limited to, contingency plans, response units and local area communities.
• Full implementation of the preparation of response plans by tank vessels and onshore and offshore facilities, and also of the requirement for bulk vessels to carry clean-up equipment.
• Full implementation of the research and development provisions of Title VII of the Act including the Coast Guard's conduct of oil pollution minimization projects. To prevent duplication, NCSL calls on the federal agencies with research funding to coordinate research projects with the states.
• Continued preservation of states' authority to impose additional liability or other requirements with respect to oil spills and removal activities and to establish state oil spill funds and penalties.
• That safety and operational requirements for vessels apply, where appropriate, to barges as well.
• Support for the federal responder immunity standard as contained in the Oil Pollution Act of 1990.
• Clarification of jurisdiction of federal and state natural resources trustees in areas pertaining to oil spill prevention, response and cleanup.

August 2010

Pollution Prevention

In an effort to protect public health and the environment, and because it has been shown to be more cost effective than removing pollution from the environment after it has been introduced, the National Conference of State Legislatures supports the prevention of pollution at its source. To that end, NCSL believes federal legislation and regulation should:

• Encourage the implementation of activities designed to minimize both the use of hazardous materials and the generation of hazardous pollution by businesses and industry and regulated entities; and
• Require pollution prevention by businesses and industry, and the federal enforcement of these requirements;
• NCSL further supports federal funding of pollution prevention research and development, training, technical assistance, and regulatory guidance for states.

August 2009