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, 1998

7000 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

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?

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?