Comprehensive Emergency Response and Compensation Act 1980 42 U.S.C. § 9601 et seq. (1980)

Comprehensive Emergency Comprehensive Emergency Response and Compensation Response and Compensation

Act 1980Act 198042 U.S.C. § 9601 et seq. 42 U.S.C. § 9601 et seq.

(1980)(1980)

July 2002 Environmental Law 2

Love CanalLove Canal


Midnight DumpingMidnight Dumping


Recycle HorrorsRecycle Horrors

• A Recycler accepted waste when his A Recycler accepted waste when his incinerator wasn’t working and piled incinerator wasn’t working and piled up the wastes that later leaked.up the wastes that later leaked.


Times Beach, MOTimes Beach, MO

• 1983, oil contaminated with 1983, oil contaminated with polychlorinated biphenyls (PCBs) was polychlorinated biphenyls (PCBs) was spread on roads to keep dust down; spread on roads to keep dust down; thus, residents were exposed to high thus, residents were exposed to high levels of PCBslevels of PCBs

• Area was on flood plane and annually Area was on flood plane and annually was floodedwas flooded

• Poor communityPoor community


Sometimes your friends do you Sometimes your friends do you no favorsno favors

• CERCLA would not have passed when CERCLA would not have passed when it did, unless the incoming it did, unless the incoming Republicans pushed it through so Republicans pushed it through so they would not have to deal with it in they would not have to deal with it in their administration.their administration.

• Dropping Victims’ Compensation was Dropping Victims’ Compensation was the compromise that passed the bill.the compromise that passed the bill.


Pressure for SuperfundPressure for Superfund

• Love CanalLove Canal• Times BeachTimes Beach• ““Midnight” DumpingMidnight” Dumping• ““50,000” sites survey50,000” sites survey• Anti-Administration PressureAnti-Administration Pressure• Need for off budget financingNeed for off budget financing


Contractor’s DreamContractor’s Dream

• Superfund created Superfund created a $1.6 billion fund a $1.6 billion fund to remediate to remediate priority sites. priority sites.

• Estimates of Estimates of 30,000 to 50,000 30,000 to 50,000 sites in the United sites in the United StatesStates


ProvisionsProvisions

• The chemical industry was required The chemical industry was required to pay a feedstock fee to cover to pay a feedstock fee to cover “orphan sites” where no owner could “orphan sites” where no owner could be found.be found.

• Where owners could be identified, Where owners could be identified, the “Polluter Paid.”the “Polluter Paid.”


Legal PrinciplesLegal Principles

• Joint, Strict and SeveralJoint, Strict and Several– Overzealous enforcementOverzealous enforcement– Poorly constructed Risk Assessments Poorly constructed Risk Assessments

(Barbara Blum memorandum of a quick (Barbara Blum memorandum of a quick and dirty study)and dirty study)

– Over-interpretationOver-interpretation

• Embodied direct extension of Embodied direct extension of common law principles common law principles


Created New IndustriesCreated New Industries

• Remediation ContractorsRemediation Contractors• Risk Management Experts to Risk Management Experts to

evaluate sites before purchaseevaluate sites before purchase• Legal bonanza – the full employment Legal bonanza – the full employment

act for lawyers.act for lawyers.


From Mortgage Agreement for From Mortgage Agreement for a Housea House

• 21. Hazardous Substances. As used in this 21. Hazardous Substances. As used in this Section 21: (a) “Hazardous Substances” Section 21: (a) “Hazardous Substances” are those substances defined as toxic or are those substances defined as toxic or hazardous substances, pollutants, or hazardous substances, pollutants, or wastes by Environmental law and the wastes by Environmental law and the following substances: gasoline, kerosene, following substances: gasoline, kerosene, other flammable or toxic petroleum other flammable or toxic petroleum products, toxic pesticides, and herbicides, products, toxic pesticides, and herbicides, volatile solvents, materials containing volatile solvents, materials containing asbestos or formaldehyde, and radioactive asbestos or formaldehyde, and radioactive materials; materials;


Cont. from Mortgage Cont. from Mortgage AgreementAgreement

(b) “Environmental Law means federal (b) “Environmental Law means federal laws and laws of the jurisdiction laws and laws of the jurisdiction where the property is located that where the property is located that relate to health, safety or relate to health, safety or environmental protection; (c) environmental protection; (c) “Environmental Cleanup” includes “Environmental Cleanup” includes any response action, remedial action, any response action, remedial action, or removal action, as defined in or removal action, as defined in Environmental Law; and Environmental Law; and


Mortgage ContinuedMortgage Continued

(d) An “Environmental Condition” means a (d) An “Environmental Condition” means a condition that can cause, contribute to, or condition that can cause, contribute to, or otherwise trigger and environmental otherwise trigger and environmental cleanup.cleanup.

Borrower shall not cause or permit the Borrower shall not cause or permit the presence, use, disposal, storage, or presence, use, disposal, storage, or release of any Hazardous Substances, or release of any Hazardous Substances, or threaten to release and Hazardous threaten to release and Hazardous Substances on the property. (Cont.)Substances on the property. (Cont.)


Mortgage Cont.Mortgage Cont.

Borrower shall not do, nor allow anyone else Borrower shall not do, nor allow anyone else to do, anything affecting the Property (a) to do, anything affecting the Property (a) that is in violation of any Environmental that is in violation of any Environmental Law, (b) which creates an Environmental Law, (b) which creates an Environmental condition, or (c) which, due to the condition, or (c) which, due to the presence, use, or release of a Hazardous presence, use, or release of a Hazardous Substance, creates a condition that Substance, creates a condition that adversely affect the value of the adversely affect the value of the property. . . . property. . . .


National Contingency PlanNational Contingency Plan

• A plan to respond to oil, hazardous A plan to respond to oil, hazardous materials releasesmaterials releases

• Method to investigate facilitiesMethod to investigate facilities• Cost estimate methodologyCost estimate methodology• Risk Assessment methodologyRisk Assessment methodology• Authorities for state, federal and local Authorities for state, federal and local

officialsofficials• Equipment storageEquipment storage• Assignment for cleanup responsibilityAssignment for cleanup responsibility


What is Different?What is Different?

• SUPERFUND legislation differs from SUPERFUND legislation differs from other environmental statutes other environmental statutes – Principal intent is to remediate Principal intent is to remediate

contamination that has already occurredcontamination that has already occurred– Other statutes impose standards on Other statutes impose standards on

current activities to prevent release of current activities to prevent release of contaminationcontamination

– Is not delegated to the statesIs not delegated to the states


Principle ProvisionsPrinciple Provisions

• §101. §101. DefinitionsDefinitions• §103. §103. Notification Notification

RequirementsRequirements• §104. §104. Response Response

AuthoritiesAuthorities• § 105. § 105. National National

Contingency PlanContingency Plan• §106. §106. Abatement Abatement

OrdersOrders• §107. §107. LiabilityLiability

• §111.§111. Superfund Superfund• §113. §113. Judicial Judicial

Review and Review and ContributionContribution

• §116. §116. Cleanup Cleanup SchedulesSchedules

• §121. §121. Cleanup Cleanup StandardsStandards

• §122. §122. SettlementsSettlements


National Priority ListNational Priority List

• Develop a Hazard Ranking System Develop a Hazard Ranking System that is applied to determine the that is applied to determine the National Priority List for site cleanupNational Priority List for site cleanup

• Allows petition to the President to Allows petition to the President to have an initial risk assessment made have an initial risk assessment made at siteat site


Remedial Investigation(Assess extent & nature of contamination)

Feasibility Study(Examine & Evaluate alternatives)

Risk Assessment(Provide Quantitative Evaluation)

Remedial Design(Develop Remedial Action)

Remedial Action(Correct Deficiency)


Over-riding questionOver-riding question

• How Clean is Clean?How Clean is Clean?– Is it return to pristine?Is it return to pristine?– Reasonable Risk?Reasonable Risk?– Insignificant Risk?Insignificant Risk?– Acceptable Risk?Acceptable Risk?


Legal IssuesLegal Issues• Stingfellow Site >250 lawyers were Stingfellow Site >250 lawyers were

forced to meet in a school forced to meet in a school gymnasium to mediate issue of gymnasium to mediate issue of proportional share of cleanupproportional share of cleanup

• Constitutionality of paying for past Constitutionality of paying for past actions that were legal at the time actions that were legal at the time

• Transaction costsTransaction costs


Has Superfund Worked?Has Superfund Worked?

• Joint and several liability results in unfair Joint and several liability results in unfair allocations of financial responsibility.allocations of financial responsibility.

• Cleanup standards are too stringent: one-size-fits-Cleanup standards are too stringent: one-size-fits-all health-based standards are inappropriate and all health-based standards are inappropriate and impair productive uses of land.impair productive uses of land.

• A litigation-driven system funnels too much A litigation-driven system funnels too much CERCLA money into transactions costs and too CERCLA money into transactions costs and too little into site cleanuplittle into site cleanup

• Where EPA does have discretion, remedies are Where EPA does have discretion, remedies are uneven from site to site, often driven by the uneven from site to site, often driven by the effectiveness of community lobbies.effectiveness of community lobbies.


Superfund Amendments and Superfund Amendments and Reauthorization Act 1986 Reauthorization Act 1986 (SARA)(SARA)

• Increased the trust fund to $8.5 Increased the trust fund to $8.5 billion over five years.billion over five years.

• Expanded to include Title III, Expanded to include Title III, Emergency Planning and Emergency Planning and Community Right-to-Know ActCommunity Right-to-Know Act


SARA Title III or EPCRASARA Title III or EPCRA

• Title III of the Superfund Title III of the Superfund Amendments Act of 1986 us the Amendments Act of 1986 us the Emergency Planning and Community Emergency Planning and Community Right-to-Know ActRight-to-Know Act

• Government response to the Government response to the chemical sabotage in Bhopal, India chemical sabotage in Bhopal, India 3,800 died as a result of the leak of 3,800 died as a result of the leak of methyl isocyanatemethyl isocyanate


Union Carbide Facility, Bhopal, Union Carbide Facility, Bhopal, IndiaIndia


Frequencies of Chemical-Source Illnesses and Injuries by Industry Groups.

5.5

3.1

1.7

1.4

1.1

0.9

0.5

Agriculture, Forestry and Fisheries

Manufacturing

Construction

Traportation and Public Utilities

Services

Mining

Wholesale and Retail Trade

Illnesses and Injuries per 1,000 Workers


Industrial Lost Time Injury Incidence

0

1

2

3

4

1977 1978 1979 1980 1981 1982 1983 1984

Year

Lost

tim

e In

ury/

100

wor

kers

Chemical Industry All Industry


Industrial Injury Severity Rate

0

20

40

60

80

100

1977 1978 1979 1980 1981 1982 1983 1984

Year

Da

ys A

wa

r fr

pm

Wo

rk/1

00

F

ull

time

em

plo

yee

s

Chemical Industry All-Industry Average


How the Law Happened—How the Law Happened—Not the Usual WayNot the Usual Way

• The Chemical Manufacturers developed The Chemical Manufacturers developed CAER® and announced in about one CAER® and announced in about one month after the Bhopal release. (Jan. month after the Bhopal release. (Jan. 1985) The EPA used the CMA framework to 1985) The EPA used the CMA framework to develop their own regulations (March develop their own regulations (March 1985)1985)

• Congress enacted SARA Title III (1986)Congress enacted SARA Title III (1986)• The UNEP issued APPELL a few years laterThe UNEP issued APPELL a few years later


EPCRA SubtitlesEPCRA Subtitles

• Subtitle A—Subtitle A—– Requires Development of Requires Development of

comprehensive local emergency comprehensive local emergency response plans for chemical releases response plans for chemical releases and reporting requirements for and reporting requirements for materialsmaterials

• Subtitle B—Subtitle B—– Community Right-to-Know making Community Right-to-Know making

information available to the publicinformation available to the public


Subtitle ASubtitle A

• Mandates State Emergency Mandates State Emergency Response Commissions (SERCs) Response Commissions (SERCs) – SERCs designate “emergency planning SERCs designate “emergency planning

districts” districts” – Local Emergency Planning Committees, Local Emergency Planning Committees,

e.g., e.g., Arlington, VA LEPCArlington, VA LEPC


LEPC Plans LEPC Plans

• Must include:Must include:– Covered facilities and transportation routesCovered facilities and transportation routes– Responsible personnelResponsible personnel– Notification proceduresNotification procedures– Methods for estimating released and areas like Methods for estimating released and areas like

to be affectedto be affected– Emergency equipment and facilitiesEmergency equipment and facilities– Evacuation plansEvacuation plans– TrainingTraining– ExercisesExercises


What went wrong and right on What went wrong and right on 9/119/11

• Medical plan just put in place saved Medical plan just put in place saved liveslives

• Communications between Communications between government agencies horridgovernment agencies horrid

• Evacuation and emergency routes Evacuation and emergency routes were a problemwere a problem

• Response appropriate, coordinated, Response appropriate, coordinated, and effectiveand effective


Substances and Facilities Substances and Facilities CoveredCovered

• If it contains a quantity of an If it contains a quantity of an extremely hazardous substance extremely hazardous substance which exceeds threshold quantities which exceeds threshold quantities established by EPAestablished by EPA

• LEPCs may add chemicals to the list LEPCs may add chemicals to the list for their areafor their area


Notification of ReleasesNotification of Releases

• Once LEPC is established, facilities Once LEPC is established, facilities within that jurisdiction must notify it within that jurisdiction must notify it of most releases of Reportable of most releases of Reportable Quantities (RQ)Quantities (RQ)

• Water was a reportable incident in Water was a reportable incident in MarylandMaryland


Hazardous Substance Lists for Hazardous Substance Lists for MSDSsMSDSs

• Owner must maintain or submit Owner must maintain or submit copies of MSDSs for all hazardous copies of MSDSs for all hazardous materials on the sitematerials on the site

• They may submit the MSDSs or a list They may submit the MSDSs or a list of MSDSs to the LEPC, the state of MSDSs to the LEPC, the state commission and their Local Fire commission and their Local Fire DepartmentDepartment

• The LEPC may request specific The LEPC may request specific MSDSs if a list is providedMSDSs if a list is provided


Hazardous Chemicals Hazardous Chemicals Inventory Inventory

• Facility owners who must submit Facility owners who must submit MSDSs or hazardous chemicals lists MSDSs or hazardous chemicals lists must also supply an inventory form must also supply an inventory form covering those chemical for which covering those chemical for which MSDSs are maintained and which are MSDSs are maintained and which are present in excess of specified present in excess of specified threshold reporting quantities.threshold reporting quantities.


TiersTiers

• Tier I information is submitted to the Tier I information is submitted to the LEPC, state commission and local fire LEPC, state commission and local fire department annuallydepartment annually– Estimated daily and maximum Estimated daily and maximum

quantities of hazardous chemicals quantities of hazardous chemicals present during the preceding year and present during the preceding year and general locationgeneral location

• Tier II — specific information to be Tier II — specific information to be provided upon request. provided upon request.


General PublicGeneral Public

• The general public may request The general public may request specific information through state or specific information through state or local officials and must be generally local officials and must be generally granted but may be denied if the granted but may be denied if the facility stored less than 10,000 facility stored less than 10,000 pounds of the material in the pounds of the material in the previous year.previous year.


Toxic Chemical Release Toxic Chemical Release Inventory FormsInventory Forms

• Owners/operators of facilities with ≥ 10 Owners/operators of facilities with ≥ 10 employees must submit annual form employees must submit annual form including:including:– Name, location, and principal business Name, location, and principal business

activities at the locationactivities at the location– An appropriate certificationAn appropriate certification– Whether each toxic chemical is manufactured, Whether each toxic chemical is manufactured,

processed or otherwise usedprocessed or otherwise used– General category of use for each chemicalGeneral category of use for each chemical


Toxic Chemical Release Toxic Chemical Release Inventory Forms (cont.)Inventory Forms (cont.)

• Estimate of the maximum amounts of Estimate of the maximum amounts of each toxic chemical present at the facility each toxic chemical present at the facility at the any time during the preceding yearat the any time during the preceding year

• Waste treatment or disposal methods Waste treatment or disposal methods employed for each waste stream and an employed for each waste stream and an estimate o the treatment efficiency estimate o the treatment efficiency typically achievedtypically achieved

• Annual quantity of each toxic chemical Annual quantity of each toxic chemical entering each environmental mediumentering each environmental medium


Public Data BasesPublic Data Bases

• Emergency Response Plans, MSDSs or Emergency Response Plans, MSDSs or hazardous substance lists, and Tier I hazardous substance lists, and Tier I inventory forms must be made available inventory forms must be made available by LEPCs for public inspection at a by LEPCs for public inspection at a designated location during normal designated location during normal business hours.business hours.

• EPA must make TRI data available through EPA must make TRI data available through a national database on a cost a national database on a cost reimbursement basis.reimbursement basis.


Trade Secret ProtectionTrade Secret Protection

• Facility owners may withhold a Facility owners may withhold a specific information if it is a specific information if it is a protected trade secretprotected trade secret

• Specific chemical identities must be Specific chemical identities must be provided to health professionals, provided to health professionals, nurses, and doctors to provide nurses, and doctors to provide medical diagnosis or treatment or for medical diagnosis or treatment or for preventative purposes under this titlepreventative purposes under this title


EnforcementEnforcement

• EPA can enforce facilities to comply EPA can enforce facilities to comply provisions, after federal district provisions, after federal district court order with up to $25,000 per court order with up to $25,000 per day finesday fines

• A civil fine of up to $25,000 per A civil fine of up to $25,000 per violation for failure to report spills violation for failure to report spills after a court order after a court order

• Repeated violations for reporting Repeated violations for reporting failures can be $75,000failures can be $75,000


E.O. 12856 3 August 1993E.O. 12856 3 August 1993

• Requires federal facilities within the Requires federal facilities within the territorial United States to comply territorial United States to comply with:with:– The Pollution prevent Act of 1990 The Pollution prevent Act of 1990 – Emergency Planning and Community Emergency Planning and Community

Right-to-Know Act (EPCRA) of 1986Right-to-Know Act (EPCRA) of 1986


QuestionQuestion

• In light of homeland security issues, In light of homeland security issues, how much information on emergency how much information on emergency response plans, drill results and response plans, drill results and worst case scenario analyses should worst case scenario analyses should be publicly available?be publicly available?

Documents

Comprehensive Emergency Response and Compensation Act 1980 42 U.S.C. § 9601 et seq. (1980)