Environmental Law: CERCLA Overview

Week 10: Environmental Response, Compensation, and Liability Act (CERCLA), Emergency Planning and Community Right-to-Know Act

• CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) was signed into law by President Jimmy Carter on December 11, 1980
• CERCLA created the Superfund program to clean up sites contaminated with hazardous substances and pollutants
• CERCLA was passed in response to hazardous waste scares and health problems, such as those experienced in Love Canal, New York
• CERCLA covers uncontrolled releases or a "substantial threat" of release of hazardous substances from a facility or vessel
• CERCLA covers corroded drums and pipes
• CERCLA gives the Environmental Protection Agency (EPA) options for responding to releases
• Under CERCLA Section 106, the EPA can issue an abatement order to force a Potentially Responsible Party (PRP) to respond to a release and fine the PRP up to $25,000 per day for noncompliance
• The EPA can clean up the release itself using Superfund money and then sue the PRP(s) to recover the money under CERCLA Section 107
• Hazardous substance covered under CERCLA includes hazardous wastes under RCRA, and hazardous substances under the Clean Water Act (CWA) and Hazardous Air Pollutants (HAPS) under the Clean Air Act (CAA), and Imminently hazardous chemical substances under the Toxic Substances Control Act (TSCA)
• Petroleum products are excluded from CERCLA
• CERCLA hazardous substances are covered under UST, SPCC, and RCRA waste regulations
• National Oil and Hazardous Substances Contingency Plan (NCP) is used to select sites for cleanup
• The National Priorities List (NPL) is created based on hazard ranking system (HRS)
• HRS is a numerically based screening system that uses information from the preliminary assessment and site inspection
• Considerations for HRS include the likelihood that a site has released or has the potential to release hazardous substances, characteristics such as toxicity and quantity of the waste, and people or sensitive environments affected by the release
• Four pathways are considered for released hazardous substances: groundwater migration, surface water migration, soil exposure, and air migration
• Scores from one or more pathways are combined using RMS equation to calculate a site score
• After listing, the first step for the NPL is a Remedial Investigation/Feasibility Study (RI/FS)
• This step collects data to characterize the site and determine the level of cleanup

The Superfund Site Cleanup Process

• Preliminary Assessment/Site Investigation
• National Priorities Listing/Hazard Ranking System
• Remedial Investigation/Feasibility Study
• Record of Decision/Remedial Action
• Construction Completion
• Post Construction Completion (continual monitoring)
• NPL deletion
• Site Reuse/Redevelopment

Potentially Responsible Parties (PRPs) Under CERCLA

• CERCLA Section 107 allows the EPA to recover response costs from four classes of PRPs:
• Current owners or operators
• Owners or operators at the time of disposal
• Persons who arranged for disposal
• Persons who transported hazardous substances to the facility where the release occurred
• CERCLA liability is retroactive, meaning that PRPs can be held liable for the present effects of acts occurring prior to 1980 enactment
• CERCLA liability is joint and several, meaning all parties in a suit are responsible for damages up to the entire amount awarded
• If one party is unable to pay, other parties must pay more than their share

CERCLA Liability

• Strict liability means that PRPs cannot defend their actions based on industry standards or claiming no negligence
• Defenses against CERCLA include act of God, act of war, and act of omissions of a third party
• De minimus parties have minimal amount and toxicity of hazardous substances compared with other hazardous substances at the facility

Innocent Landowner Defense

• A property owner can avoid PRP liability if, at the time of purchase, they did not know of contamination.
• This defense involves implementing all appropriate inquiries (e.g., using the ASTM E1527 process) before purchasing to evaluate the property's conditions and assess potential liability

CERCLA Release Reporting

• Section 103 of CERCLA requires the reporting of releases of a hazardous substance greater than the reportable quantity to the National Response Center

EPCRA (Emergency Planning and Community Right-to-Know Act)

• EPCRA was signed into law on October 17, 1986.
• Certain businesses must submit information about hazardous chemicals used to State and Local authorities upon request.

EPCRA Subchapters

• Subchapter I (Sections 301-305) deals with state and local emergency planning
• Sections 301-303 govern emergency planning, whereas Section 304 deals with emergency release notification
• Subchapter II (Sections 311-313) deals with reporting hazardous chemicals in a facility to federal, state, and local agencies
• Sections 311 and 312 concern hazardous chemical storage and reporting, whereas Section 313 deals with Toxic Chemical Release Inventory
• Subchapter III (Sections 321-330) deals with the public availability of information

Emergency Planning

• The Governor of each state appoints a State Emergency Response Commission (SERC)
• The SERC designates local districts for emergency plans and appoints and arranges local Emergency Planning Commissions (LEPCs)
• EPCRA Subchapter I only applies to extremely hazardous substances (EHSs)

Emergency Planning Requirements

• Facilities must engage in emergency planning based on a substance exceeding its threshold planning quantity (TPQ)
• Facilities must notify SERC and LEPC of chemicals using Tier I or Tier II. Reporting forms.
• Facilities must provide safety data sheets (SDS) to SERC, LEPC and local fire department.

Emergency Response Plans

• Each LEPC is required to create an emergency plan that includes: identification of facilities, routes for transporting EHS, and response methods, designation of a community emergency coordinator, notification procedures, determining release occurrences, and identification of emergency equipment
• Plans should be updated annually

Release Reporting

• Facilities releasing EHS in excess of threshold planning quantity (TPQ) must immediately report to SERC and LEPC
• Facilities releasing CERCLA hazardous substances in excess of reportable quantity (RQ) must report to SERC, LEPC, and the National Response Center

Storage Reporting

• Facilities required to prepare or have available safety data sheets (SDSs) for hazardous chemical present in an amount greater than minimal threshold level must notify SERC, LEPC, and local fire department
• Reporting requirements apply to hazardous chemical exceeding 10,000 pounds or any EHS above 500 pounds or the TPQ, whichever is less.

Storage Reporting Exemptions

• Facilities not covered under OSHA
• Food additives, drugs, and cosmetics regulated by FDA
• Solid substances in manufactured items that are not exposed at normal working conditions
• Consumer products
• Chemicals used in research labs, hospitals, medical facilities
• Substances used in agricultural operations or fertilizers

Storage Reporting: Tier II Report

• Use the Tier II report to specify the chemical's name, form, hazard categories, estimated maximum and average quantities, duration of chemical storage, description on how the chemical was stored, and the location of the chemical.

Toxic Release Reporting (TRI)

• EPA's TRI program helps track and report toxic chemical releases into the environment

Connection to PPA

• Owners of facilities required to file an annual toxic chemical release form under Section 313 of EPCRA must also file for a toxic chemical source reduction and recycling report for the previous calendar year, under the federal Pollution Prevention Act (PPA) of 1990

This quiz covers the key aspects of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), enacted in 1980. It explores the creation of the Superfund program, the EPA's powers under CERCLA, and the implications of hazardous waste management. Test your knowledge on how CERCLA addresses environmental contamination and community safety.