Superfund

Introduction – passed in 1980 after Love Canal – reauthorized and amended in 1986 (SARA)

“Rules” of CERCLA it isn’t fair the government almost always wins most cases settle private parties can usually do the work for less $ courts do not like to get in the way of superfund clean- ups

Two purposes emergency response and removal EPA must be notified if a reportable quantity of a hazardous substance is released long term remediation National Priorities List hazard ranking system > 28.5 For Thursday: find a site on the NPL and describe it

Fox Listing Proposal… Score: 100 possible 28.5 needed to list Site score: 50 Public comment July 28 to September 27, comments

EPA support Polling data: 70% want Superfund

Hazardous Substance Response Trust Fund – funding mechanism to pay for clean up of abandoned hazardous waste sites (Superfund) – based on environmental tax on corporations, tax on petroleum and chemical feedstocks, general revenues – What do we know about the trust fund?

How is CERCLA triggered? – release or substantial threat of release – of a hazardous substance – from a facility – that causes the occurrence of response costs

Hazardous substance – defined by reference to other environmental laws – EPA may add additional substances – petroleum exclusion: unless benzene, toluene and/or xylene found in unexpected levels (petroleum fraction)

Release or threat of release – no requirement for quantity released – “any spilling, leaking, pumping, pouring, emitting, discharging...” – Point A to Point B through the environment – Exclusions: workplace; emissions from motor vehicles

Facility – release from a facility or vessel – “any site where a hazardous substance has come to be located” – exclusions: consumer products in consumer use Sum: CERCLA has very broad application, can easily be triggered

Examples Joe brings home molecules of mercury from his work. As he washes his clothes, it gets into the water. Release of a hazardous substance? Sue’s foreman notes that some workers have been dumping solvent in back of the building. Sue says not to worry, because the company is not a TSD facility and, therefore, not a facility under CERCLA. Is she right? What about RCRA?

How is CERCLA triggered? – release or substantial threat of release – of a hazardous substance – from a facility – that causes the occurrence of response costs

WHO is liable? current owners and operators former owners and operators arrangers for disposal transporters who choose the site

Liability is strict joint and several retroactive Potentially responsible parties (PRPs)

Another example ABC company contracts with a transporter to haul its hazardous waste to a TSD facility. Instead, the hauler dumps the wastewater down a borehole that ends up in a river. The river becomes a superfund site. Who is liable?

Defenses to liability Act of God Act of War Solely due to an act of a third party (no contractual relationship)

Some exceptions to designation as a PRP (SARA) innocent landowner’s defense – “all appropriate inquiry” and exercise due diligence standard is much higher for commercial property prove that you did not contribute to the contamination state/local governments that acquire the property involuntarily banks, with only a fiduciary interest Hand-out

What about local governments that are arrangers for disposal? Municipal Settlement Policy (1989): – local governments that arrange to dispose of waste can be held liable, but the EPA generally will not identify them as PRPs unless the agency has reason to believe that solid waste was more hazardous than normal – However, does not protect local governments from contribution suits

What about homeowners? Homeowner Policy (1991) – EPA will not seek to recover costs of the clean-up from owners of residential property within Superfund sites, provided that the owner is not responsible for the contamination

EPA actions and PRP response Spend and sue (Sec. 107) cost recovery action Order and sue (Sec. 106) unilateral administrative order EPA orders PRPs to clean up; may impose penalties up to $25,000 per day Order, spend and sue (Sec. 107) EPA orders PRP to clean up site, if refuses, then spends $ to clean up and sues for treble damages

Most PRPs settle Voluntary clean-ups are possible prior to an EPA action PRPs often settle and then sue non-settling PRPs for contribution little success in arguing for divisibility prior to settling with EPA

Questions How is CERCLA different from other environmental laws? Why is the law so often criticized? Given what you now know, would you have passed the law?

Problem of “Orphan Shares” Most sites have bankrupt PRPs settling PRPs don’t want to pay for 100 % of removal costs CERCLA provides for use of Superfund, but EPA has seldom used this authority

Settled cases may not be final EPA has the right to “reopen” the settlement with a PRP should it need to respond to unknown conditions

Natural Resource Damage Assessments PRPs may be held liable for damage to natural resources in addition to clean up costs must be held in public trust by state, national or tribal government Does clean up correct injury to resource?