Transcript Legal Developments in Hazardous Waste and Hazardous

Legal Developments
Hazardous Waste &
Hazardous Materials
April 25, 2013
John E. Price
Carnahan, Evans, Cantwell & Brown, P.C.
417-447-4400
[email protected]
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Fertilizer and CFATS
• West Fertilizer, whose plant exploded April
17, did not self-report to DHS under
CFATS.
• Reporting threshold for ammonium nitrate
is 400 lbs.
• West Fertilizer had 270 tons.
• No DHS inspections had occurred.
• 4,000 sites in U.S. are subject to CFTAS.
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CFTAS Summary
• Chemical Facility Anti-Terrorism Standards Act (CFATS);
6 CFR § 27.
• Regulates the highest-risk chemical facilities.
• Six phases to regulatory scheme:
1) Submission of a Top–Screen,
2) Notification of a preliminary risk-tier,
3) Submission of a Security Vulnerability Assessment
(SVA),
4) DHS notification of its final tier determination,
5) Submission of a Site Security Plan (SSP), and
6) Ongoing compliance.
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CFATS Top-Screen
• Facilities that possess any of the chemicals
at the quantities and concentrations listed in
Appendix A must submit facility and
facility-related information to DHS via a
secure web portal called the Chemical
Security Assessment Tool (CSAT)(9/2010).
• DHS is currently evaluating 1,200+
agricultural facilities via its Agricultural
Survey.
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Appendix A – Chemicals of Interest
• Published 11/20/2007 in Federal Register
• 3 security issues:
1) Risk of release (toxic, flammable,
explosive)
2) Theft or Diversion (easily used in
weapons)
3) Sabotage or Contamination (pose risk
if mixed with readily available materials)
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Preliminary Designation
• After reviewing the Top-Screen, DHS
notifies each facility by letter.
• Facilities that do not "present a high level of
security risk" are not subject to CFATS.
• Facilities that do "present a high level of
security risk" must complete a Security
Vulnerability Assessment (SVA).
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Security Vulnerability Assessment
(SVA)
• DHS notified 7,000 facilities they were
assigned to one of four risk tiers.
• Tiers 1 (greatest risk) to 4 (least risk).
• Each preliminarily tiered facility must
complete an SVA.
• SVA is a comprehensive assessment of the
facility and risks posed.
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Final Tier Determination
• Decided by DHS.
• May classify as not high-risk and exit CFATS
system, or move facility to higher risk category.
• 115 Tier 1 facilities
• 464 Tier 2 facilities
• 1,096 Tier 3 facilities
• 2,070 Tier 4 facilities
• 677 facilities still preliminarily tiered
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Site Security Plan (SSP)
• Due within 120 days of notice of tiering.
• Submit via Chemical Security Assessment Tool
(CSAT).
• Identify and describe how each security measure
will meet, as applicable, the eighteen Risk-Based
Performance Standards (RBPSs).
• CFATS RBPS Guidance Document (5/2009).
• Enforcement actions began mid-2010.
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BOX STORES and RCRA
• Since 2010, 3 major box store chains have faced RCRA
claims in California.
• Wal-Mart, May 2010: $27.6 M fine settlement.
• Target, March, 2011: $22.5 M fine settlement.
• CVS, April, 2012: $13.75 M fine settlement.
• Improper storage and disposal of Hazardous Wastes.
• Returns and damaged products (bleach, paints, pesticides,
batteries, aerosols, fertilizer, motor oils) placed in regular
trash and went to non-RCRA landfills, or down the drain.
• Shipped materials to central location – illegal transport of
Hazardous Wastes.
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CERCLA Refresher
• Any current or past O/O, arranger or transporter is liable.
• Any amount of contamination is sufficient to trigger liability if a
“release” occurred.
• Strict, joint and several liability unless PRP can prove a
“reasonable basis” for apportionment. Divisibility may be
established by volumetric, chronological, or other types of evidence,
including appropriate geographic considerations.
• Essentially unlimited liability.
• To be liable, PRP must take intentional steps to dispose of a
hazardous substance, or sell a product with the intent (not just
knowledge) that a portion of it will be disposed of during the
transfer process.
• Economically viable products may not be hazardous substances
under CERCLA’s “useful product” doctrine.
• SOL on remediation cost recovery by government is 6 years after
remedy construction starts. 3 years from completion of removal
actions.
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CERCLA Cost Recovery
Developments
• §107(a) - permits a private party who has voluntarily
incurred costs cleaning up a site for which it may be held
liable to recover necessary response costs from another
liable party through a direct recovery action.
• §113(f) – allows a person to seek contribution from any
other person who is liable or potentially liable under
§107(a) during or following a civil action under §§ 106 or
107, and allows a person who has resolved its liability to
the government for some or all of a response action or for
some or all of the costs of such action in an administrative
or judicially approved settlement” to seek contribution
from any person who has not so resolved its liability.
Parties who settle with the government are not liable for
contribution claims.
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CERCLA Cases
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•
•
Cooper Industries, Inc., v. Aviall Services, Inc., 125 S. Ct. 577 (2004). Court used
a strict construction of CERCLA’s “clear meaning,” ruling that a party that
performs cleanup may seek CERCLA §113(f)(1) contribution only if it was a
defendant in a CERCLA §§ 106 or 107(a) “civil action,” or if it had previously
resolved its liability to federal regulators in “an administrative or judicially
approved settlement.” Absent a settlement agreement, costs incurred by a
private party under threat of enforcement, or in performing a voluntary
cleanup, may no longer be recovered through a CERCLA §113 contribution
action.
United States v. Atlantic Research Corp., 551 U.S. 128 (2007). Maintained the
first part of Aviall's holding that PRPs can bring contribution claims under
§113 only after a §106 or §107(a) action has been brought against them. But
ruled that a party who had voluntarily incurred response costs but had not
been sued could bring a recovery cost action against other PRPs under section
§107(a).
Morrison Enterprises, LLC v. Dravo Corp., No. 10-1468 (8th Cir. 2011) and
Solutia, Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir. 2012). A party with a
viable Section §113 contribution claim may not also seek recovery under
section §107, even when that party has incurred costs voluntarily under a
consent decree (a unilateral EPA order that may or may not release a PRP
from liability).
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PRP Considerations
• A PRP may: (1) clean up the site voluntarily and then try to sue other
PRPs for cost recovery (§107a), or (2) wait for EPA to bring a §106 or
§107(a) enforcement action against it and then seek contribution under
§113(f) from other PRPs.
• After Avail, a PRP could no longer incur voluntary cleanup costs and
sue other PRPs for recovery under §107(a). It could only sue for
contribution after EPA brought a civil action against it.
• After Atlantic, a PRP can again incur voluntary cleanup costs and sue
PRPs for §107 recovery, but only if a §106 or §107 action has not been
brought against it.
• So a PRP that immediately addresses a site and voluntarily remediates
before government enforcement has a better chance to obtain
reimbursement from other PRPs.
• Delaying a settlement with EPA/MDNR may better preserve cost
recovery rights, but EPA’s new settlement guidance suggests it may
issue UAOs if a PRP delays settlement.
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Vehicles as CERCLA Facilities
• Emergency Services Billing Corporation v. Vitran
Express, Inc., 2011 U.S. Dist. LEXIS 140891
(12/2011) – truck carrying school books and 300
gallons of a hazardous substance in large plastic
container that leaked, causing local government to
incur response costs, was a CERCLA facility.
• Owner of equipment or vehicle that releases HS at a
cleanup site can be liable even though it owns no
interest in the contaminated real property.
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NJDEP v. Dimant (2012)
• PCE contamination in groundwater.
• DEP inspectors saw pipe dripping PCE onto
blacktop at Dimant’s facility. No evidence of
cracks, frequency or duration of drips, fate of
drips, or GW gradients. Other sources nearby.
• Ruling: “there must be shown a reasonable link
between the discharge, the putative discharger
and the contamination at the specifically damaged
site.” DEP failed to show the “requisite
connection” between the dripping pipe and the
GW contamination.
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OSHA HCS Litigation Update
• 12/1/2013 DEADLINE TO TRAIN WORKERS
ON NEW LABELLING AND SAFETY DATA
SHEET (SDS) REQTS
• Challenges to Final Rule are pending in DC Cir.
Ct. of Appeals.
• Preemption Issue: Final Rule preempts all state
laws and regulations, but does not preempt
litigation.
• Would allow suits in state court for failure-towarn even where company was in compliance with
HCS requirements. Being challenged by NAM and
American Tort Reform Ass’n.
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New RBCA Guidance and Rule
• Missouri Risk-Based Corrective Action Process for
Petroleum Storage Tanks guidance document, January
1, 2013 for all newly discovered releases.
• Can continue to use 2005 RBCA Guidance for prior
releases if O/O implements a work plan previously
approved by MDNR within 1 year of plan approval.
• New DTL Table 3-1.
• New Rule published; comment period runs until May 1,
2013.
• New Rule changes CAP requirements for maps, photos,
sampling, boring logs.
• Removes landowner “veto” of RAFU determination;
now MDNR decides RAFU.
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