Control of Toxic and Hazardous Substances

Control of Toxic and Control of Toxic and Hazardous SubstancesHazardous Substances

Love Canal Love Canal

In August 1978 President Carter In August 1978 President Carter declared a federal emergency at the declared a federal emergency at the Love Canal due to contamination by Love Canal due to contamination by toxic chemicals in the area.toxic chemicals in the area.

Love Canal focused attention on Love Canal focused attention on hazardous waste issues and led to hazardous waste issues and led to the passage of the federal Superfund the passage of the federal Superfund Act.Act.

Love Canal -- BackgroundLove Canal -- Background

The Love Canal neighborhood is in The Love Canal neighborhood is in the city of Niagara Falls, New York. the city of Niagara Falls, New York.

In 1978 the neighborhood included In 1978 the neighborhood included about 800 homes, 240 low-income about 800 homes, 240 low-income apartments, and the 99apartments, and the 99thth Street Street Elementary School.Elementary School.

The neighborhood was located over The neighborhood was located over and around a landfill that had been and around a landfill that had been active in earlier decades.active in earlier decades.

Love Canal – some historyLove Canal – some history The canal was to be built in the 1890s The canal was to be built in the 1890s

for ship navigation, but it was never for ship navigation, but it was never completed.completed.

Early 1900s: the unfinished canal was Early 1900s: the unfinished canal was used for swimming and boating.used for swimming and boating.

The land was sold in 1920 and The land was sold in 1920 and became a municipal and industrial became a municipal and industrial dump site.dump site.

From 1942 to 1953, Hooker Chemical From 1942 to 1953, Hooker Chemical dumped about 21,000 tons of ‘toxic dumped about 21,000 tons of ‘toxic chemicals” at the site. chemicals” at the site.

The Love The Love Canal area in Canal area in 1927. The 1927. The arrow points arrow points to the canal.to the canal.

Love Canal – some historyLove Canal – some history

In 1953 the landfill was covered with In 1953 the landfill was covered with layers of dirt.layers of dirt.

The Niagara Falls Board of Education The Niagara Falls Board of Education bought the site from Hooker bought the site from Hooker Chemical.Chemical.

As the city started to grow into the As the city started to grow into the area, the 99area, the 99thth Street Elementary Street Elementary School was built over the landfill, and School was built over the landfill, and homes were built around the site.homes were built around the site.

Love Canal – some historyLove Canal – some history

From the late 1950s into the 1970s, From the late 1950s into the 1970s, residents reported foul odors and residents reported foul odors and complained that “substances” were complained that “substances” were seeping into their basements, yards, seeping into their basements, yards, and the school playground.and the school playground.

The city assisted by covering up the The city assisted by covering up the seeping “substances.”seeping “substances.”

Tests found high levels of PCB’s in storm Tests found high levels of PCB’s in storm sewers and toxic chemicals in wells.sewers and toxic chemicals in wells.

Love CanalLove Canal

LoveLove

Canal Canal

in in 19801980

Love Canal: Love Canal: Environmental DamagesEnvironmental Damages

Reports suggested that there was an Reports suggested that there was an unusually high rate of birth defects and unusually high rate of birth defects and miscarriages among Love Canal families.miscarriages among Love Canal families.

In 1980 the EPA announced that In 1980 the EPA announced that chromosome damage had been found in chromosome damage had been found in 11 out of 36 residents tested in the area.11 out of 36 residents tested in the area.

There has not been conclusive proof of a There has not been conclusive proof of a link between Love Canal and any illness.link between Love Canal and any illness.

The health of residents of the Love The health of residents of the Love Canal area is being monitored in a Canal area is being monitored in a number of ongoing studies.number of ongoing studies.

Love Canal todayLove Canal today

The canal itself has been fenced, and The canal itself has been fenced, and groundwater flow from it has been blocked.groundwater flow from it has been blocked.

The surrounding area, now called Black Creek The surrounding area, now called Black Creek Village, is home to hundreds of families.Village, is home to hundreds of families.

About 260 homes abandoned in the late About 260 homes abandoned in the late 1970s have been renovated and resold.1970s have been renovated and resold.

Chemical wastes were left in a 70-acre site, Chemical wastes were left in a 70-acre site, but it was capped and fenced.but it was capped and fenced.

Love Canal – Regulatory Love Canal – Regulatory ImpactImpact

The Love Canal disaster spurred the The Love Canal disaster spurred the passage of the passage of the Comprehensive Comprehensive Environmental Response, Environmental Response, Compensation, and Liability Act Compensation, and Liability Act (CERCLA) – The Superfund Act – (CERCLA) – The Superfund Act – by by Congress in 1980.Congress in 1980.

Remediation efforts at Love canal took Remediation efforts at Love canal took more than twenty years, with a large share more than twenty years, with a large share of the costs being paid by the chemical of the costs being paid by the chemical company that bought Hooker Chemical.company that bought Hooker Chemical.

Love Canal was removed from the federal Love Canal was removed from the federal government’s Superfund list in 2004.government’s Superfund list in 2004.

SourcesSources

http://ublib.buffalo.edu/libraries/http://ublib.buffalo.edu/libraries/projects/lovecanal/introduction.htmlprojects/lovecanal/introduction.htmlHistory of the site from the local History of the site from the local perspective.perspective.

http://www.epa.gov/region02/http://www.epa.gov/region02/superfnd/site_sum/0201290c.htmsuperfnd/site_sum/0201290c.htm

An overview from the EPA.An overview from the EPA.

Toxic waste problems like Love Toxic waste problems like Love Canal are especially hard to Canal are especially hard to

handle:handle: It may be hard to identify the polluter.It may be hard to identify the polluter. Pollution might be the result of an improbable Pollution might be the result of an improbable

accident rather than an on-going activity.accident rather than an on-going activity. It might be unclear how liability should be It might be unclear how liability should be

shared between two or more possible shared between two or more possible polluters.polluters.

Remediation must be completed quickly, but Remediation must be completed quickly, but it might take a long time to decide who it might take a long time to decide who should pay.should pay.

It’s hard to measure the amount of pollution It’s hard to measure the amount of pollution or the likely damages.or the likely damages.

Health problems might have a long latency Health problems might have a long latency period.period.

Federal responses:Federal responses:Resource Conservation and Resource Conservation and

Recovery Act (1976)Recovery Act (1976) “ “Cradle to grave” management of Cradle to grave” management of

hazardous wasteshazardous wastes Established standards for storage and Established standards for storage and

transport of hazardous materials.transport of hazardous materials. Required hazardous waste handlers to Required hazardous waste handlers to

track and report all movements of wastes.track and report all movements of wastes. Established tough standards for Established tough standards for

landfills.landfills.

Federal responses:Federal responses:Resource Conservation and Resource Conservation and

Recovery Act (1976)Recovery Act (1976)Efficiency and cost-effectiveness of Efficiency and cost-effectiveness of the RCRA approachthe RCRA approach

Efficiency: Rules (such as the Efficiency: Rules (such as the designation of certain wastes as designation of certain wastes as hazardous) are based on factors such as hazardous) are based on factors such as toxicity, with no consideration of the toxicity, with no consideration of the costs of control. costs of control.

Cost-effectiveness: RCRA is an another Cost-effectiveness: RCRA is an another example of the use of uniform standards example of the use of uniform standards to control pollution. to control pollution.

Federal responses:Federal responses:CERCLA – the Superfund Act CERCLA – the Superfund Act

(1980)(1980) Comprehensive Environmental Comprehensive Environmental

Response, Compensation, and Liability Response, Compensation, and Liability Act Act established a fund – Superfund – to established a fund – Superfund – to facilitate cleanup of hazardous waste sites.facilitate cleanup of hazardous waste sites.

Authorized the federal government to Authorized the federal government to clean up hazardous waste sites and clean up hazardous waste sites and recover damages from responsible parties.recover damages from responsible parties.

Established a tax on oil and chemical Established a tax on oil and chemical companies to fund cleanup costs at companies to fund cleanup costs at abandoned sites; but this funding ended abandoned sites; but this funding ended long ago.long ago.

Tightened legal liability standards for Tightened legal liability standards for hazardous waste problems.hazardous waste problems.

SuperfundSuperfund

The The National Priorities List (NPL)National Priorities List (NPL) includes sites that pose the greatest includes sites that pose the greatest threats to human health; these are threats to human health; these are supposed to get immediate attention.supposed to get immediate attention.

NPL Sites in the US, NPL, Superfund, US EPANPL Sites in the US, NPL, Superfund, US EPA Construction Completions at National Priorities List Construction Completions at National Priorities List

(NPL) Sites - by State, NPL, Superfund, US EPA(NPL) Sites - by State, NPL, Superfund, US EPA Deleted National Priorities List (NPL) Sites - by Deleted National Priorities List (NPL) Sites - by

State, NPL, Superfund, US EPAState, NPL, Superfund, US EPA

Progress under SuperfundProgress under Superfund

Progress under SuperfundProgress under SuperfundSummary of Superfund Program Summary of Superfund Program Accomplishments (End of 2006)Accomplishments (End of 2006)

1006 Superfund sites have had all cleanup construction 1006 Superfund sites have had all cleanup construction completed. completed.

There were 1557 final NPL sites, so construction has been There were 1557 final NPL sites, so construction has been completed at 65% of them.completed at 65% of them.

The EPA was conducting 653 cleanup projects at 414 The EPA was conducting 653 cleanup projects at 414 sites.sites.

In 2006 the EPA obtained commitments from “potentially In 2006 the EPA obtained commitments from “potentially responsible parties” in the private sector to provide $391 responsible parties” in the private sector to provide $391 million for future remediation work and $164 million to million for future remediation work and $164 million to reimburse the EPA for past costs.reimburse the EPA for past costs.

What legal standard should What legal standard should apply?apply?

The choice of a legal standard can determine:The choice of a legal standard can determine: Who pays for remediation?Who pays for remediation?

Whenever possible, we want it to be the case that Whenever possible, we want it to be the case that “The polluter pays.”“The polluter pays.”

What level of precaution will be chosen by What level of precaution will be chosen by waste handlers and other possible hazardous waste handlers and other possible hazardous waste “sources”?waste “sources”? Waste handlers will choose a higher level of Waste handlers will choose a higher level of

precaution if that reduces the risk of a lawsuit precaution if that reduces the risk of a lawsuit later.later.

Therefore the threat of legal action can provide Therefore the threat of legal action can provide significant incentives.significant incentives.

Possible standards:Possible standards: Negligence standard: Negligence standard:

Waste handler has a duty to exercise “due care.”Waste handler has a duty to exercise “due care.” If it can be proved that damages were caused by If it can be proved that damages were caused by

the waste handler’s negligence (or lack of “due the waste handler’s negligence (or lack of “due care”), then the waste handler can be forced to care”), then the waste handler can be forced to pay compensation.pay compensation.

An example: One rule that’s sometimes applied An example: One rule that’s sometimes applied in the courts is that the defendant is guilty of in the courts is that the defendant is guilty of negligence ifnegligence if(damages) × (probability of contamination) > cost of preventing (damages) × (probability of contamination) > cost of preventing contaminationcontamination


Possible standards:Possible standards: Negligence standard (cont.)Negligence standard (cont.)

Who pays?Who pays? If negligence can be proved, then the If negligence can be proved, then the

polluter pays.polluter pays. But it can be hard to prove negligence!But it can be hard to prove negligence!

Incentives?Incentives?


Strict liabilityStrict liability Courts have determined that this can be Courts have determined that this can be

applied in Superfund casesapplied in Superfund cases Definition: if an activity causes damage, Definition: if an activity causes damage,

the defendant is liable for damages, the defendant is liable for damages, even if the defendant was not negligent even if the defendant was not negligent and was not breaking any laws.and was not breaking any laws.

Who pays?Who pays? Incentives?Incentives?


Joint and several liabilityJoint and several liability Courts have determined that this standard Courts have determined that this standard

also can be applied in Superfund casesalso can be applied in Superfund cases Definition: if several parties are Definition: if several parties are

responsible for damages, each of them responsible for damages, each of them individually is potentially liable for all the individually is potentially liable for all the damages.damages.

Who pays?Who pays? The government can choose to sue only a few The government can choose to sue only a few

parties who might be responsible.parties who might be responsible.


Joint and several liability (cont.)Joint and several liability (cont.) Incentives?Incentives?

In principle, each responsible party has an In principle, each responsible party has an incentive to turn in other responsible parties.incentive to turn in other responsible parties.

But this also provides an incentive for But this also provides an incentive for defendants to appeal decisions, leading to defendants to appeal decisions, leading to lengthy and costly court battles.lengthy and costly court battles.

In the 1980s, legal costs accounted for more than 50% In the 1980s, legal costs accounted for more than 50% (and perhaps as much as 90%) of remediation costs.(and perhaps as much as 90%) of remediation costs.

The government tends to sue larger firms, so:The government tends to sue larger firms, so: Smaller firms have little incentive to take precautions.Smaller firms have little incentive to take precautions. Larger firms have an incentive to choose a higher level Larger firms have an incentive to choose a higher level

of precaution than would be economically efficient.of precaution than would be economically efficient.


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Control of Toxic and Hazardous Substances