Slide 6- 1 CERCLA Chapter 6 Comprehensive Environmental Response Compensation and Liability Act “CERCLA”

Slide 6- 2 CERCLA CERCLA Commonly Called l Superfund

Slide 6- 3 CERCLA CERCLA or Superfund l The federal remediation statute Clean Up

Slide 6- 4 CERCLA Remediation of What ? l Past l Spills or Releases l Hazardous Substances l Into The Environment

Slide 6- 5 CERCLA Who Pays For Remediation ? l Parties Responsible For the Release –If they Can Be Found –Called Potentially Responsible Party (“PRP”) l Federal Government –Using a special fund of money –Raised by a tax on chemicals & oil

Slide 6- 6 CERCLA How is CERCLA Different ? From Other Environmental Laws l Retrospective & Retroactive l Multi-pollutant l Multi-media l Regulates Places Not People l Creates Private Right of Action

Slide 6- 7 CERCLA Retrospective & Retroactive l Addresses current environmental releases from past practices –CAA, CWA & SDWA regulate pollutants before they are released to the environment l Those practices may have occurred before the law was enacted (1980)

Slide 6- 8 CERCLA Multi-Pollutant l Addresses pollutants listed in all the other environmental statutes –Clean Air Act –Clean Water Act –RCRA

Slide 6- 9 CERCLA Multi -Media Where the pollutant comes to be located l Addresses pollutants regardless of location in –Air –Water –Land

Slide CERCLA Private Right of Action l Private parties l May sue in federal court to recover l Clean-up costs –But NOT for PERSONAL INJURY

Slide CERCLA Focus on Places Rather Than Persons l CERCLA regulates the particular location (site) where a hazardous substance has been released l CAA, CWA typically regulate the facility operators

Slide CERCLA Basic Structure of CERCLA Four Fundamental Program Elements l Information Gathering (Reporting) l Federal Response & Cleanup of Releases (Cleanup) l Pay For Cleanup (Funding) l Pursue Responsible Parties (Liability)

Slide CERCLA CERCLA in A Nutshell 1. Identifies the site of 2. Release or potential release of 3. Hazardous Substances

Slide CERCLA CERCLA Nutshell (Continued) 4. Identify parties responsible for those sites 5. Authorizes cleanup up those sites to national standards –By EPA or responsible party 6. Pays or allows payment for the cleanup –With “Superfund $ (No responsible party) –By Court action (Against responsible parties)

Slide CERCLA So How Many Sites Need Cleanup ? l EPA has 40,000 reported sites in their inventory

Slide CERCLA The Lawyers More environmental lawyers are probably involved in Superfund cases than any other single environmental statute.

Slide CERCLA The Main Parts of CERCLA l Site & Release Reporting l Cleanup l Liability

Slide CERCLA 1. Site & Release Reporting l Old Site Notification (Section 103(c)) l Spills (Section 103(a))

Slide CERCLA Old Site Notification l WHAT: Any unpermitted facility where hazardous waste is or has been treated stored or disposed l ACTION: Notify EPA of existence, amount & type of waste l TIME: By June 9, 1981 and ? l WHO: »Present owner »Prior owner/operator »Transporter who selected the site

Slide CERCLA Spill Reporting l Person in charge of a vessel or facility l Release l Hazardous Substance l Equal to greater than reportable quantity l Into the environment Immediately Notify the National Response Center

Slide CERCLA Failure To Report A Spill l Criminal: –3 years in prison –Fines l Civil –$27,500 per day

Slide CERCLA Hazardous Substances & Reportable Quantities l About 1200 named substances l RQ from 1 pound to 5000 pounds l Listed in 40 CFR Part 302, Table 302.4

Slide CERCLA Petroleum Exclusion l Petroleum, including crude oil or any fraction thereof l Excluded from definition of “hazardous substance” l Normal BTX components in gasoline also excluded l Reason why UST are RCRA not CERCLA

Slide CERCLA 2. Cleanup Triggers For Action l The release or substantial threat of a release of a “hazardous substance” from a facility into the environment l The release or substantial threat of a release of any pollutant or contaminant from a facility into the environment which may present an imminent and substantial danger to the public health or welfare CERCLA Section 104(a)(1)

Slide CERCLA Two Types of Cleanups l Removal –Short term emergency action –examples: fencing, alternative water l Remedial Actions –Long term –Permanent solution –$$$$$$$$$$

Slide CERCLA Two EPA Cleanup Options l Conduct cleanup & seek costs recovery – from “potentially responsible parties” (PRP’s) l Compel PRP’s to perform cleanup –voluntarily (Judicial Consent Order) –involuntarily (Section 106 Administrative Order)

Slide CERCLA Blueprint For CERCLA Cleanups l National Contingency Plan (“NCP”)

Slide CERCLA 8 Steps In The Remedial Process l Site Identification l Preliminary Assessment l Hazardous Ranking & NPL Listing l Remedial Investigation/Feasibility Study (RI/FS)

Slide CERCLA Steps l Remedy Selection l Record of Decision (ROD) l Remedial Design (RD) l Remedial Action (RA)

Slide CERCLA 3. CERCLA Liability l Strict –fault is not considered l Joint and Several –any one of multiple parties may be liable for all l Retroactive –Includes pre-enactment (1980) actions

Slide CERCLA Liable For What ? l Response Costs l Incurred by –EPA or Private Party l Consistent with the NCP l In responding to a release or a threatened release of a l Hazardous substance

Slide CERCLA Who Is Liable ? l Current owner/operator l Former owner/operator l Person who “arranged for disposal” l Transporter who selected site

Slide CERCLA Two Private Party Options l Private cost recovery action –§ 107 action l Contribution action –§ 113 action

Slide CERCLA Defenses To Liability l Act of God l Act of War l Act or Omission of Third Party l Innocent Landowner

Slide CERCLA Innocent Purchaser Defense l Current owner or operator l Who acquired property post-disposal l Did not know or have reason to know about contamination l Made appropriate inquiry (Due diligence)

Slide CERCLA Innocent Banker Defense l Parties who have title to property l But do not participate in management l Hold title only to protect a security interest