Week 10 - CERCLA Management PDF

Chapter 24, “Brownfields” Chapter 25,“Comprehensive Environmental Response, Compensation, and Liability Act” Chapter 26, “Disasters Releasing Hazardous Materials” Chapter 28, “Emergency Preparedness and Response” Chapter 30 “Homeland Security” Chapter 38,“HAZWOPER" CERCLA ◼ The Comprehensive Envi...

Chapter 24, “Brownfields” Chapter 25,“Comprehensive Environmental Response, Compensation, and Liability Act” Chapter 26, “Disasters Releasing Hazardous Materials” Chapter 28, “Emergency Preparedness and Response” Chapter 30 “Homeland Security” Chapter 38,“HAZWOPER" CERCLA ◼ The Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) was signed into law by President Jimmy Carter on December 11, 1980 ◼ Passed by Congress in response to several hazardous waste scares including the health problems exhibited by residents in Love Canal, New York 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 (currently no substances are designated under this authority) ◼ 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 ◼ No threshold quantity Potentially Responsible Parties (PRPs) ◼ Current owner or operator of the site ◼ The person who owned the site at the time any hazardous waste was disposed of there ◼ The person who arranged for the disposal of a hazardous substance ◼ The person who transported the substance to the site No Fault or Negligence Needed ◼ CERCLA applies strict liability, meaning that the government does not need to show fault or negligence on the part of the potentially responsible party ◼ For example, if the PRP had stored hazardous waste in containers that ruptured, it would not matter that the manufacturer of the container assured the PRP that the containers would last indefinitely, the PRP could still be held liable ◼ Or, the PRP shipped to a permitted landfill, but the landfill still leaked https://www.deq.ok.gov/land-protection- division/cleanup-redevelopment/superfund/hardage-criner- superfund-site/ Defenses Against CERCLA ◼ 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 ◼ 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 (ASTM E1527) meets this “All Appropriate Inquiry” process ASTM Environmental Site Assessment ◼ Under this standard, an Environmental Professional (EP) is required to investigate the property and prepare a report regarding the environmental conditions on or around the property and whether there is a possibility of a release or threatened release of hazardous substances ◼ https://www.youtube.com/watch?v=hf210UjlDy8 ◼ The EP must possess certain qualifications: ◼ https://www.epa.gov/system/files/documents/20 24- 05/aai_factsheet_environmental_professional_ep a_560_f_17_191_508.pdf Phase I Environmental Site Assessment ◼ An onsite visit is required and the EP must interview current and past owners, occupants, operators, and facility managers. Various databases and records must also be reviewed in the process ◼ A Phase I evaluation does not include soil and water sampling. ◼ If the Phase I assessment identifies any Recognized Environmental Conditions (RECs) that present significant concerns, a Phase II assessment might be conducted to further characterize potential contamination and liabilities before a decision is made on whether to purchase the property Recognized Environmental Conditions (RECs) ◼ Examples of RECs commonly discovered in Phase I ESAs: ◼ Underground or aboveground fuel or oil storage tanks which may result in surface or subsurface ground water or soil contamination ◼ Buried drums and wastes ◼ The presence or past presence of waste oil; solvent disposal or leakage; heavy metals like mercury, lead, or chromium ◼ The presence of old transformers that may have caused PCB contamination ◼ Stressed vegetation, indicating potential soil contamination Recognized Environmental Conditions (RECs) ◼ Historical maps, photos, databases, and documents can often be used to identify potential site contamination from historical site activities Phase II ◼ Phase II Environmental Assessments https://www.youtube.com/watch?v=s2HJm5OgXfg Brownfields ◼ In 2002, Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act, known as the Brownfields Amendments: ◼ Allowed an individual to purchase property with the knowledge of contamination and to obtain protection from liability for contamination on or at a property if they met the following requirements: ◼ Acquired the property after January 11, 2002 ◼ Established that the disposal of all hazardous substances occurred before they acquired the facility ◼ Made all appropriate inquiries into previous ownership and uses of the property prior to acquiring the property ◼ Are not affiliated with the party responsible for any contamination Brownfields ◼ Once acquired, the owner must: ◼ Exercise appropriate care with respect to the hazardous substances by taking reasonable steps to stop or prevent continuing or threatened future releases and exposures, as well as to prevent or limit human and environmental exposure to previous releases ◼ Perform cleanup using risk-based cleanup criteria ◼ Based on current and future land uses of the brownfield property. These land uses are often are incorporated into the remediation plan appropriate for the level of residual contamination. ◼ Comply with land use restrictions ◼ Often incorporated legally into deed restrictions and other legal agreements. EPCRA ◼ Emergency Planning and Community Right-To-Know Act ◼ https://www.youtube.com/watch?v=lkX TXjXeyHw SARA ◼ CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) on October 17, 1986 ◼ This amendment is also known as the Emergency Planning and Community Right to Know Act (EPCRA) ◼ There are four major provisions of EPCRA: ◼ Sections 301–303, Emergency Response Plans ◼ Section 304, Emergency Release Notification ◼ Sections 311 and 312, Hazardous Chemical Inventory Reporting Requirements ◼ Section 313, Toxic Release Inventory Reporting Sections 302 to 303 – Emergency Planning ◼ Section 302 requires notification when Extremely Hazardous Substances (EHSs) are present at facilities in quantities at or above the Threshold Planning Quantity (TPQ) established in the EPCRA regulations ◼ Section 303 requires LEPCs to develop initial emergency response plans and update them annually Emergency Response Plans ◼ Governor of each state designates a State Emergency Response Commission (SERC) responsible for implementing EPCRA provisions within its state ◼ SERCs review local emergency response plans ◼ Designate local emergency planning districts and Local Emergency Planning Committees (LEPCs) ◼ LEPCs are required to develop an emergency response plan and provide information about chemicals in the community to citizens Emergency Response Plans ◼ Facilities that are subject to emergency planning requirements include any facility with any extremely hazardous substance (EHS) on-site that is greater than the relevant threshold planning quantities (TPQs) and any other facility designated as subject to the emergency planning requirements by the state governor or SERC https://www.ecfr.gov/current/title-40/chapter- I/subchapter-J/part-355/appendix- Appendix%20A%20to%20Part%20355 Emergency Response Plans ◼ Facilities with EHS chemicals subject to reporting must also cooperate in emergency plan preparation (participate in the LEPC) and designate a facility emergency coordinator ◼ Participation in the LEPC may be a part of a consent agreement for violations Section 304 - Emergency Release Notification ◼ Anyone who handles hazardous substances or EHSs is subject to CERCLA spill reporting requirements any time a hazardous substance is released to the environment that exceeds its reportable quantity (RQ) within a 24-hour period: ◼ Hazardous substances and their RQs: https://www.ecfr.gov/current/title-40/chapter- I/subchapter-J/part-302 ◼ EHSs and their RQs: https://www.ecfr.gov/current/title-40/chapter- I/subchapter-J/part-355/appendix- Appendix%20A%20to%20Part%20355 Section 304 - Emergency Release Notification ◼ Table 25.2. (p. 19) Release Reporting Requirements Summary ◼ For release of a sheen (petroleum product) or a CERCLA hazardous substance above the RQ, the person in charge should immediately notify the National Response Center at 1-800-424-8802 ◼ For reporting the releases of extremely hazardous substances or CERCLA hazardous substances above the RQ, the community emergency coordinator for the LEPC and the SERC must also be immediately notified (often through calling 911) ◼ Notification could trigger a response by the EPA or any governmental authority (local, state, or federal) Sections 311-312 - Hazardous Chemical Inventory Reporting Requirements ◼ Required for facilities required under OSHA to maintain SDSs ◼ State and municipal employers do not fall under OSHA ◼ Often asked to provide courtesy reporting 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  Section 312 - Hazardous Chemical Inventory ◼ Any facility required under OSHA to prepare or have available an SDS for a hazardous chemical and 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 (Tier I/Tier II reporting): ◼ EHS more than 500 pounds or the TPQ for that chemical, whichever is less ◼ Gasoline more than 75,000 gallons if in a UST ◼ Diesel more than 100,000 gallons if in a UST ◼ All other hazardous chemicals in excess of https://www.youtube.com /watch?v=IpCELWYI414 10,000 pounds (including gasoline and diesel in ASTs) Section 312 - Hazardous Chemical Inventory ◼ Most states require using a “Tier II” form, which requires basic facility identification information, employee contact information for both emergencies and nonemergencies and information about chemicals stored or used at the facility, including: ◼ Chemical name or the common name as indicated on the SDS ◼ An estimate of the maximum amount of the chemical present at any time during the preceding calendar year and average daily amount ◼ A brief description of the manner of storage of the chemical ◼ Location of the chemical at the facility ◼ These facilities must also submit an SDS to the LEPC, the SERC, and the local fire department annually Tier II Reports ◼ Online reporting at https://www.deq.ok.gov/land-protection- division/chemical-reporting-and- preparedness/tier-ii/ ◼ OUHSC 2015 Tier II Report Section 313 – Toxic Chemical Release Inventory ◼ Facilities must complete TRI reporting for certain chemicals if: ◼ The facility is included in a TRI-covered North American Industry Classification System (NAICS) code; and ◼ The facility has 10 or more full-time employee equivalents; and ◼ The facility manufactures, processes or otherwise uses any EPCRA Section 313 chemical in quantities greater than the established threshold during a calendar year. ◼ Most chemicals on the TRI list trigger reporting if a facility manufactures or processes the chemical in excess of 25,000 pounds or otherwise uses the chemical in excess of 10,000 pounds during the reporting year ◼ Executive Order 13423 extends these reporting requirements to federal facilities, regardless of their SIC or NAICS code Section 313 – Toxic Chemical Release Inventory ◼ The TRI is a publicly available database that contains information on the quantities of certain toxic chemicals released annually to air, water and land, or otherwise managed as waste by industrial and federal facilities throughout the United States ◼ The public has access to this information ◼ This access is coordinated at the state level, for example, Oklahoma provides an interactive map to see where chemicals are stored in your community: https://deq.maps.arcgis.com/apps/LocalPerspective/ind ex.html?appid=671e8f1b8ccd49f7ae6e8824521d435e Oklahoma TRI ◼ https://www.deq.ok.gov/land-protection- division/chemical-reporting-and- preparedness/toxics-release-inventory/ ◼ https://cdx.epa.gov/ Differences between Tier II and TRI Reporting ◼ https://www.rmagreen.com/rma- blog/is-tier-ii-reporting-the-same-as-tri- reporting ◼ https://www.tceq.texas.gov/assistance/ resources/tierIIchart.html Chemical Facility Anti- Terrorism Standards (CFATS) ◼ On December 30, 1999, Chemical Weapons Convention regulations under 15 CFR Parts 710 through 722 were enacted as a final rule in the federal register Vol. 64, No. 250 pp 73744-73811.This regulation requires the declaration and inspection of facilities (including universities) that produce, process or consume certain ‘‘scheduled’’ chemicals and unscheduled discrete organic chemicals, many of which have significant commercial applications. ◼ A. Toxic chemicals (CAS numbers are in parenthesis): (1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78–53–5) (2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (382–21–8) (3) BZ: 3-Quinuclidinyl benzilate (6581–06–2) B. Precursors: (4) Chemicals containing a phosphorus atom to which is bonded one methyl, ethyl or propyl (normal or iso) group but not further carbon atoms, e.g. Methylphosphonyl dichloride (676–97–1) Dimethyl methylphosphonate (756–79–6) Chemical Facility Anti- Terrorism Standards (CFATS) (5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides (6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)- phosphoramidates (7) Arsenic trichloride (7784–34–1) (8) 2,2-Diphenyl-2-hydroxyacetic acid (76–93–7) (9) Quinuclidine-3-ol (1619–34–7) (10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts (11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts Exemptions: N,N-Dimethylaminoethanol and corresponding protonated salts (108–01–0) N,N-Diethylaminoethanol and corresponding protonated salts (100– 37–8) (12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts (13) Thiodiglycol: Bis(2-hydroxyethyl) sulfide (111–48–8) (14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol (464–07–3) Chemical Facility Anti- Terrorism Standards (CFATS) ◼ Terrorist acts on September 11, 2001 resulted in further concerns about chemical and biological terrorism ◼ The Homeland Security Act of 2002 created the Department of Homeland Security (DHS) ◼ On October 4, 2006, President George W. Bush signed the Department of Homeland Security Appropriations Act of 2007, which provided the DHS with the authority to regulate the security of high-risk chemical facilities. Chemical Facility Anti- Terrorism Standards (CFATS) ◼ President Obama signed into law the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, otherwise known as the Chemical Facility Anti-Terrorism Standards (CFATS) Act of 2014. ◼ CFATS covers any chemical facility that possesses a chemical of interest (COI) in an amount at or exceeding the applicable screening threshold quantity (STQ) for that chemical (6 CFR Part 27, Appendix A) ◼ P. 105 - Once a facility possesses a COI at or above the STQ, it must complete a top-screen questionnaire through CSAT within 60 calendar days… Chemical Terrorism ◼ p. 116 – impact on drinking water security and safety ◼ Chlorine (gas) is on the Appendix A list (screening threshold 500 pounds) ◼ p. 116 – impact on DOT transportation of hazardous chemicals ◼ Security threat assessment for drivers with a hazmat endorsement on a CDL ◼ Drivers must receive training and instructions on how to report suspicious activity ◼ p. 118 Security awareness training for hazmat employees ◼ Employer must develop a security plan that addresses personnel screening and security measures, procedures for limiting unauthorized access to hazardous materials, and en route security measures Biological Terrorism Agents Storage ◼ Terrorist acts on September 11, 2001 and the anthrax attacks of 2001 also resulted in biological terrorism concerns ◼ USA PATRIOT Act in 2001 established criteria for those prohibited from having access to “select agents and toxins” ◼ The “Public Health Security and Bioterrorism Preparedness Response Act of 2002” (Public Law 107-188) signed into law on June 12, 2002, requires that the United States improve its ability to prevent, prepare for, and respond to bioterrorism and other public health emergencies. ◼ Survey of universities and research facilities for “select agents and biological toxins” published in the Federal Register July 12, 2002, with results required by September 10, 2002 Biological Terrorism Agents Storage ◼ Terrorist acts on September 11, 2001 also resulted in biological terrorism ◼ A second survey called the “U.S. national wild poliovirus inventory” of all biomedical laboratories began October 2002. Inventory forms were mailed to academic institutions, biotechnology and pharmaceutical companies, and clinical, hospital and government facilities. Even if no wild poliovirus materials were retained, all institutions/ laboratories had to respond by December 31, 2002. Chemical and Biological Terrorism Agents Storage ◼ The Federal Select Agent Program regulates the possession, use, and transfer of select agents and toxins. The program allows laboratories to conduct research on these materials while ensuring safety and security. ◼ Jointly managed by CDC (human pathogens and toxins) and USDA (plant and animal pathogens and toxins) Select Agents ◼ https://www.selectagents.gov/sat/list.htm ◼ Training ◼ Inventory ◼ Security and emergency response plans ◼ Registration with CDC/USDA ◼ Recordkeeping and documentation of any transport ◼ Inspections Emergency Preparedness Phases (Chapter 26) ◼ Mitigation ◼ actions and activities taken to reduce or eliminate the chance of occurrence or the effects of a disaster (restricting development in flood plains, requiring building codes that will increase the likelihood of surviving a given wind load, providing secondary containment) ◼ Preparedness ◼ preparing people to respond appropriately when an emergency is imminent (training, supplies, plans) ◼ Response ◼ Recovery 29 CFR § 1910.120 HAZWOPER ◼ The HAZWOPER regulations outline five specific situations to which the requirements apply: 1. Cleanup operations required by government mandate 2. Corrective actions required under RCRA 3. Voluntary cleanup at uncontrolled hazardous waste sites 4. Facilities operating as a treatment, storage, and disposal facilities (TSDF) under RCRA 5. Emergency response to releases of hazardous wastes or substances HAZWOPER Requirements ◼ Site Characterization and Analysis ◼ Site Safety and Health Plan ◼ Site Control (Work Zones) HAZWOPER Requirements ◼ Training (for cleanup activities) ◼ Site Worker, Management, and Supervisors – 40 hours of instruction off the site, and minimum of three days actual field experience under the direct supervision of a trained, experienced supervisor ◼ Specialists (workers on site only for a specific limited task (e.g., ground water monitoring, land surveying, or geo-physical surveying) and who are unlikely to be exposed over exposure limits) – 24 hours of instruction off the site, and minimum of one day actual field experience under the direct supervision of a trained, experienced supervisor ◼ 8 hour refresher training annually Emergency Response ◼ 1910.120(a)(2)(iv) Emergency response operations for releases of, or substantial threats of releases of, hazardous substances which are not (clean-up operations at uncontrolled hazardous waste sites) must only comply with the requirements of paragraph (q) of this section. 1910.120(q) Emergency Response ◼ “This paragraph covers employers whose employees are engaged in emergency response no matter where it occurs except that it does not cover employees engaged in operations specified in paragraphs (a)(1)(i) through (a)(1)(iv) of this section.” ◼ (those are clean-up required by a government, cleanup under RCRA, voluntary clean-up of an uncontrolled hazardous waste site, and TSDF facilities). First Responder Training ◼ First responder awareness level - individuals who are likely to witness or discover a hazardous substance release and who have been trained to initiate an emergency response sequence by notifying the proper authorities of the release ◼ They would take no further action beyond notifying the authorities of the release ◼ First responder operations level - individuals who respond to releases or potential releases of hazardous substances as part of the initial response to the site for the purpose of protecting nearby persons, property, or the environment from the effects of the release ◼ Trained to respond in a defensive fashion without actually trying to stop the release ◼ Function is to contain the release from a safe distance, keep it from spreading, and prevent exposures First Responder Training ◼ Hazardous materials technician - individuals who respond to releases or potential releases for the purpose of stopping the release ◼ Assume a more aggressive role than a first responder at the operations level in that they will approach the point of release in order to plug, patch or otherwise stop the release of a hazardous substance ◼ 24 hours of training ◼ Hazardous materials specialist - individuals who respond with and provide support to hazardous materials technicians such as a site liaison with Federal, state, local and other government authorities in regards to site activities ◼ 24 hours of training 1910.120(q)(1) Emergency Response Plan ◼ Emergency response plan. An emergency response plan shall be developed and implemented to handle anticipated emergencies prior to the commencement of emergency response operations. The plan shall be in writing and available for inspection and copying by employees, their representatives and OSHA personnel. Employers who will evacuate their employees from the danger area when an emergency occurs, and who do not permit any of their employees to assist in handling the emergency, are exempt from the requirements of this paragraph if they provide an emergency action plan in accordance with 29 CFR 1910.38. Elements of an Emergency Response Plan ◼ Pre-emergency planning and coordination with outside parties ◼ Personnel roles, lines of authority, and communication ◼ Emergency recognition and prevention ◼ Safe distances and places of refuge ◼ Site security and control ◼ Evacuation routes and procedures ◼ Decontamination procedures ◼ Emergency medical treatment and first aid ◼ Emergency alerting and response procedures ◼ Critique of response and follow-up ◼ PPE and emergency equipment Post-emergency response operations 1910.120(q)(11) ◼ “Upon completion of the emergency response, if it is determined that it is necessary to remove hazardous substances, health hazards, and materials contaminated with them (such as contaminated soil or other elements of the natural environment) from the site of the incident, the employer conducting the clean- up shall comply with one of the following: ◼ Meet all of the requirements of paragraphs (b) through (o) of this section; or ◼ Where the clean-up is done on plant property using plant or workplace employees, such employees shall have completed the training requirements of the following: 29 CFR 1910.38, 1910.134, 1910.1200, and other appropriate safety and health training made necessary by the tasks they are expected to perform such as personal protective equipment and decontamination procedures. All equipment to be used in the performance of the clean-up work shall be in serviceable condition and shall have been inspected prior to use.” Homework