Week 10 - CERCLA Law PDF

Week 10: Comprehensive Environmental Response, Compensation, and Liability Act” Chapter 15, “Emergency Planning and Community Right-to-Know Act” CERCLA, SARA and the Alphabet Soup https://www.youtube.com/watch?v=UMoXRF yUCYw&t=106s CERCLA The Comprehensive Environmental Response, Com...

Week 10: Comprehensive Environmental Response, Compensation, and Liability Act” Chapter 15, “Emergency Planning and Community Right-to-Know Act” CERCLA, SARA and the Alphabet Soup https://www.youtube.com/watch?v=UMoXRF yUCYw&t=106s CERCLA The Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) was signed into law by President Jimmy Carter on December 11, 1980 Created the Superfund program for cleanup of sites contaminated with hazardous substances and pollutants Passed by Congress in response to several hazardous waste scares including the health problems exhibited by residents in Love Canal, New York https://www.youtube.com/watch?v=3iSFgZ-SlaU CERCLA Created Hazardous Substance Superfund to clean up contaminated hazardous waste sites CERCLA hazardous substance Hazardous wastes under RCRA Hazardous substances under CWA Hazardous air pollutants (HAPs) under CAA Imminently hazardous chemical substances under TSCA No threshold quantity Petroleum products excluded from CERCLA Covered under UST, SPCC, and RCRA waste regs CERCLA Covers an uncontrolled release, or a “substantial threat” of release of a hazardous substance from a facility or vessel Corroded drums/pipes CERCLA CERCLA provides EPA with the following options for responding to hazardous substance releases: Under CERCLA Section 106 EPA can issue an abatement order to force a Potentially Responsible Party (PRP) to respond to the release and fine the PRP up to $25,000 per day fine for noncompliance EPA can clean up the release itself using Superfund money pursuant to CERCLA Section 104 and then sue one or more PRP(s) to recover the money under CERCLA Section 107 Selection of Sites for Cleanup National Oil and Hazardous Substances Contingency Plan https://www.epa.gov/emergency- response/national-oil-and-hazardous- substances-pollution-contingency-plan-ncp- overview#Key%20Provisions%20of%20the %20NCP National Priorities List https://www.youtube.com/watch?v=56kthJ gkYYo Hazard Ranking System (HRS) HRS is the principal mechanism the EPA uses to place uncontrolled waste sites on the NPL. It is a numerically based screening system that uses information from the preliminary assessment and the site inspection. Factors considered The likelihood that a site has released or has the potential to release hazardous substances into the environment The characteristics of the waste (e.g., toxicity and waste quantity) The people or sensitive environments (targets) affected by the release Hazard Ranking System (HRS) Four pathways are considered by which released hazardous substances can enter the environment: Groundwater migration (drinking water) Surface water migration (drinking water, human food chain) Soil exposure (resident population, nearby population) Air migration (population and sensitive environments) After scores are calculated for one or more pathways, they are combined using a root mean square (RMS) equation to determine the overall site score If all pathway scores are low, the site score is low. However, the site score can be relatively high even if only one pathway score is high Sites with an HRS score of 28.50 or greater are eligible for listing on the NPL NPL First step after listing is the performance of a Remedial Investigation/Feasibility Study (RI/FS) Collect data to characterize the site https://dtsc.ca.gov/brownfields/remedial- investigation-feasibility-study-process/ Determine the level of cleanup Risk-based like UST cleanup (RBCA) The Superfund Site Cleanup Process 1. Preliminary Assessment/Site Investigation 2. National Priorities Listing/Hazard Ranking System 3. Remedial Investigation/Feasibility Study 4. Record of Decision 5. Remedial Design/Remedial Action 6. Construction Completion 7. Post Construction Completion (continual monitoring) 8. NPL deletion 9. Site Reuse/Redevelopment Potentially Responsible Parties (PRPs) Under CERCLA CERCLA Section 107 authorizes EPA to recover its 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 PRPs can be held liable for the present effects of acts which occurred prior to CERCLA’s enactment in 1980 No statute of limitation CERCLA Liability is Joint and Several Joint and several liability is a legal term for a responsibility that is shared by two or more parties to a lawsuit A wronged party may sue any or all of them, and collect the total damages awarded by a court from any or all of them In law, joint and several liability makes all parties in a suit responsible for damages up to the entire amount awarded That is, if one party is unable to pay, the others named must pay more than their share CERCLA Liability is Strict PRPs cannot defend their actions based on acting in accordance with industry standards or claiming no negligence Defenses Against CERCLA (p. 624) An act of God An act of war An act or omission of a third party Someone else dumps something on your property Potentially Responsible Parties (PRPs) Under CERCLA De minimus parties (p. 639) Amount and toxicity of hazardous substances are minimal compared with other hazardous substances at the facility; and The party is the owner of the property but did not conduct or permit the generation, handling, or disposal; contribute to the release; or acquire the facility with knowledge that it had been used to store, handle or dispose of hazardous substances Dumped by someone else Innocent landowner defense Innocent Landowner Defense A property owner may be able to claim the innocent landowner defense and avoid PRP liability if, at the time of purchase, the purchaser did not know or had no reason to know of contamination after performing “All Appropriate Inquiry” before the purchase to evaluate a property’s environmental conditions and assess potential liability for any contamination The ASTM International’s standard for conducting a Phase I environmental site assessment (ESA) (ASTM E1527) meets this “All Appropriate Inquiry” process https://www.youtube.com/watch?v=SMVlIa1hUp0 CERCLA Release Reporting (p. 641) Section 103 of CERCLA requires that the release of a hazardous substance greater than the reportable quantity be reported to the National Response Center https://www.ecfr.gov/current/title- 40/chapter-I/subchapter-J/part-302#302.4 1984 NBC News https://www.youtube.com/watch?v =FHJs3TwgsUQ EPCRA The federal Emergency Planning and Community Right-to-Know Act (EPCRA) was signed into law on October 17, 1986, as part (Title III) of the much broader Superfund Amendments and Reauthorization Act (SARA), which amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Often called SARA Title III Under EPCRA, certain businesses must submit information about hazardous chemicals used in their facilities to state and local authorities and to the public upon request EPCRA Subchapters Subchapter I (Sections 301–305) is for state and local emergency planning Sections 301 to 303 - emergency planning Section 304 - emergency release notification Subchapter II (Sections 311–313) is for reporting the type and quantity of hazardous chemicals maintained at certain facilities to federal, state, and local agencies (for planning purposes) Sections 311 and 312 - hazardous chemical storage and reporting requirements Section 313 - Toxic Chemical Release Inventory Subchapter III (Sections 321–330) addresses public availability of information Emergency Planning Governor of each state must appoint a State Emergency Response Commission (SERC) The SERC must designate local emergency planning districts and appoint and organize the activities of Local Emergency Planning Commissions (LEPCs) Emergency Planning Requirements EPCRA’s Subchapter I requirements apply only to those substances designated as “extremely hazardous substances” (EHSs) https://www.law.cornell.edu/cfr/text/40/appendix-A_to_part_355 Threshold Planning Quantities (TPQ): A facility must engage in emergency planning based on the presence of an EHS only if that substance exists at the facility in an amount exceeding its TPQ Any facility that produces, uses, or stores any of the listed chemicals in a quantity greater than the TPQ must meet all emergency planning criteria Notify SERC of chemicals (using Tier I or Tier II reporting form) Appoint an emergency planner Provide safety data sheets (SDSs) to the SERC, LEPC and the local fire department Comprehensive Emergency Response Plans Each LEPC is required to prepare (and annually update) an emergency plan that contains: identification of facilities covered identification of routes likely to be used to transport EHSs, and identification of methods and procedures to be followed by facility owners and operators and medical personnel in responding to a release of EHSs designation of a community emergency coordinator and facility emergency coordinators procedures for effective and timely notification to responders and the general public when a release has occurred methods for determining the occurrence of a release and the likely affected area or population identification of available emergency equipment and facilities evacuation plans training and exercises of the emergency plan Release Reporting Facilities that release any EHS in excess of the RQ must report immediately to the SERC and the LEPC Facilities that release any CERCLA hazardous substance in excess of the RQ must report to the SERC, the LEPC, and the National Response Center. Storage Reporting Any facility that is required under OSHA to prepare or have available a safety data sheet for a hazardous chemical and that keeps such a chemical present at the facility in an amount greater than the minimum threshold levels must notify the SERC, the LEPC, and the local fire department Hazardous chemical that requires a SDS in excess of 10,000 pounds EHS more than 500 pounds or the TPQ for that chemical, whichever is less Storage Reporting Exemptions/Exclusions: Facilities not covered by OSHA Food additives, drugs, and cosmetics regulated by the Food and Drug Administration Solid substances in manufactured items as long as exposure to the substance does not occur under normal working conditions consumer products chemicals used in research labs, hospitals, and medical facilities substances used routinely in agricultural operations or fertilizer for consumer sale. Storage Reporting Use “Tier II” report form https://www.deq.ok.gov/land-protection-division/chemical- reporting-and-preparedness/tier-ii/ the chemical or common name the form of hazardous chemical (solid, gas, etc.) applicable health and physical hazard categories an estimated maximum and average amount of the chemical present at the facility during the preceding year the number of days the chemical was on-site a description of the manner of storage of the hazardous chemical the location of the chemical at the facility Toxic Release Reporting Community Right-to-Know https://www.youtube.com/watch?v=Fqj h6t6Hx6s&t=13s TRI https://www.epa.gov/toxics- release-inventory-tri-program/look- inside-tri-facility Connection to PPA The federal Pollution Prevention Act (PPA) of 1990 requires each owner or operator of a facility required to file an annual toxic chemical release form under Section 313 of EPCRA to also file a toxic chemical source reduction and recycling report for the preceding calendar year Homework