Transcript Slide 1

Comprehensive Emergency
Response and
Compensation Act 1980
42 U.S.C. § 9601 et seq.
(1980)
Love Canal
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Midnight Dumping
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Recycle Horrors
• A Recycler accepted waste when
his incinerator wasn’t working and
piled up the wastes that later
leaked.
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Times Beach, MO
• 1983, oil contaminated with
polychlorinated biphenyls (PCBs)
was spread on roads to keep dust
down; thus, residents were
exposed to high levels of PCBs
• Area was on flood plane and
annually was flooded
• Poor community
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Sometimes your friends do
you no favors
• CERCLA would not have passed
when it did, unless the incoming
Republicans pushed it through so
they would not have to deal with it
in their administration.
• Dropping Victims’ Compensation
was the compromise that passed
the bill.
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Pressure for Superfund
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Love Canal
Times Beach
“Midnight” Dumping
“50,000” sites survey
Anti-Administration Pressure
Need for off budget financing
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Contractor’s Dream
• Superfund
created a $1.6
billion fund to
remediate priority
sites.
• Estimates of
30,000 to 50,000
sites in the
United States
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Provisions
• The chemical industry was
required to pay a feedstock fee to
cover “orphan sites” where no
owner could be found.
• Where owners could be identified,
the “Polluter Paid.”
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Legal Principles
• Joint, Strict and Several
– Overzealous enforcement
– Poorly constructed Risk
Assessments (Barbara Blum
memorandum of a quick and dirty
study)
– Over-interpretation
• Embodied direct extension of
common law principles
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Created New Industries
• Remediation Contractors
• Risk Management Experts to
evaluate sites before purchase
• Legal bonanza – the full
employment act for lawyers.
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From Mortgage Agreement
for a House
• 21. Hazardous Substances. As used in
this Section 21: (a) “Hazardous
Substances” are those substances
defined as toxic or hazardous
substances, pollutants, or wastes by
Environmental law and the following
substances: gasoline, kerosene, other
flammable or toxic petroleum products,
toxic pesticides, and herbicides,
volatile solvents, materials containing
asbestos or formaldehyde, and
radioactive materials;
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Cont. from Mortgage
Agreement
(b) “Environmental Law means
federal laws and laws of the
jurisdiction where the property is
located that relate to health,
safety or environmental
protection; (c) “Environmental
Cleanup” includes any response
action, remedial action, or
removal action, as defined in
Environmental Law; and
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Mortgage Continued
(d) An “Environmental Condition” means
a condition that can cause, contribute
to, or otherwise trigger and
environmental cleanup.
Borrower shall not cause or permit the
presence, use, disposal, storage, or
release of any Hazardous Substances,
or threaten to release and Hazardous
Substances on the property. (Cont.)
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Mortgage Cont.
Borrower shall not do, nor allow anyone
else to do, anything affecting the
Property (a) that is in violation of any
Environmental Law, (b) which creates
an Environmental condition, or (c)
which, due to the presence, use, or
release of a Hazardous Substance,
creates a condition that adversely
affect the value of the property. . . .
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National Contingency Plan
• A plan to respond to oil, hazardous
materials releases
• Method to investigate facilities
• Cost estimate methodology
• Risk Assessment methodology
• Authorities for state, federal and local
officials
• Equipment storage
• Assignment for cleanup responsibility
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What is Different?
• SUPERFUND legislation differs
from other environmental statutes
– Principal intent is to remediate
contamination that has already
occurred
– Other statutes impose standards on
current activities to prevent release
of contamination
– Is not delegated to the states
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Principle Provisions
• §101. Definitions
• §103. Notification
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Requirements
§104. Response
Authorities
§ 105. National
Contingency Plan
§106. Abatement
Orders
§107. Liability
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• §111. Superfund
• §113. Judicial
Review and
Contribution
• §116. Cleanup
Schedules
• §121. Cleanup
Standards
• §122.
Settlements
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National Priority List
• Develop a Hazard Ranking System
that is applied to determine the
National Priority List for site
cleanup
• Allows petition to the President to
have an initial risk assessment
made at site
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Remedial Investigation
(Assess extent & nature of contamination)
Feasibility Study
(Examine & Evaluate alternatives)
Risk Assessment
(Provide Quantitative Evaluation)
Remedial Design
(Develop Remedial Action)
Remedial Action
(Correct Deficiency)
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Over-riding question
• How Clean is Clean?
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Is it return to pristine?
Reasonable Risk?
Insignificant Risk?
Acceptable Risk?
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Legal Issues
• Stingfellow Site >250 lawyers
were forced to meet in a school
gymnasium to mediate issue of
proportional share of cleanup
• Constitutionality of paying for
past actions that were legal at the
time
• Transaction costs
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Has Superfund Worked?
• Joint and several liability results in unfair
allocations of financial responsibility.
• Cleanup standards are too stringent: one-sizefits-all health-based standards are
inappropriate and impair productive uses of
land.
• A litigation-driven system funnels too much
CERCLA money into transactions costs and
too little into site cleanup
• Where EPA does have discretion, remedies
are uneven from site to site, often driven by
the effectiveness of community lobbies.
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Superfund Amendments and
Reauthorization Act 1986
(SARA)
• Increased the trust fund to $8.5
billion over five years.
• Expanded to include Title III,
Emergency Planning and
Community Right-to-Know Act
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SARA Title III or EPCRA
• Title III of the Superfund
Amendments Act of 1986 us the
Emergency Planning and
Community Right-to-Know Act
• Government response to the
chemical sabotage in Bhopal,
India 3,800 died as a result of the
leak of methyl isocyanate
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Union Carbide Facility,
Bhopal, India
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Frequencies of Chemical-Source Illnesses
and Injuries by Industry Groups.
Wholesale and Retail Trade
Mining
Services
Traportation and Public Utilities
Construction
0.5
0.9
1.1
1.4
1.7
3.1
Manufacturing
5.5
Agriculture, Forestry and Fisheries
Illnesses and Injuries per 1,000 Workers
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Lost time Inury/100
workers
Industrial Lost Time Injury Incidence
4
3
2
1
0
1977
1978
Chemical Industry
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1979
All Industry
1980
1981
1982
1983
1984
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Days Awar frpm Work/100
Full time employees
Industrial Injury Severity Rate
100
80
60
40
20
0
1977 1978 1979 1980 1981 1982 1983 1984
Year
Chemical Industry
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All-Industry Average
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How the Law Happened—
Not the Usual Way
• The Chemical Manufacturers
developed CAER® and announced in
about one month after the Bhopal
release. (Jan. 1985) The EPA used the
CMA framework to develop their own
regulations (March 1985)
• Congress enacted SARA Title III (1986)
• The UNEP issued APPELL a few years
later
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EPCRA Subtitles
• Subtitle A—
– Requires Development of
comprehensive local emergency
response plans for chemical releases
and reporting requirements for
materials
• Subtitle B—
– Community Right-to-Know making
information available to the public
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Subtitle A
• Mandates State Emergency
Response Commissions (SERCs)
– SERCs designate “emergency
planning districts”
– Local Emergency Planning
Committees, e.g., Arlington, VA LEPC
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LEPC Plans
• Must include:
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Covered facilities and transportation routes
Responsible personnel
Notification procedures
Methods for estimating released and areas
like to be affected
Emergency equipment and facilities
Evacuation plans
Training
Exercises
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What went wrong and right
on 9/11
• Medical plan just put in place
saved lives
• Communications between
government agencies horrid
• Evacuation and emergency routes
were a problem
• Response appropriate,
coordinated, and effective
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Substances and Facilities
Covered
• If it contains a quantity of an
extremely hazardous substance
which exceeds threshold
quantities established by EPA
• LEPCs may add chemicals to the
list for their area
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Notification of Releases
• Once LEPC is established,
facilities within that jurisdiction
must notify it of most releases of
Reportable Quantities (RQ)
• Water was a reportable incident in
Maryland
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Hazardous Substance Lists
for MSDSs
• Owner must maintain or submit
copies of MSDSs for all hazardous
materials on the site
• They may submit the MSDSs or a
list of MSDSs to the LEPC, the
state commission and their Local
Fire Department
• The LEPC may request specific
MSDSs if a list is provided
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Hazardous Chemicals
Inventory
• Facility owners who must submit
MSDSs or hazardous chemicals
lists must also supply an
inventory form covering those
chemical for which MSDSs are
maintained and which are present
in excess of specified threshold
reporting quantities.
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Tiers
• Tier I information is submitted to
the LEPC, state commission and
local fire department annually
– Estimated daily and maximum
quantities of hazardous chemicals
present during the preceding year
and general location
• Tier II — specific information to
be provided upon request.
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General Public
• The general public may request
specific information through state
or local officials and must be
generally granted but may be
denied if the facility stored less
than 10,000 pounds of the
material in the previous year.
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Toxic Chemical Release
Inventory Forms
• Owners/operators of facilities with ≥
10 employees must submit annual form
including:
– Name, location, and principal business
activities at the location
– An appropriate certification
– Whether each toxic chemical is
manufactured, processed or otherwise
used
– General category of use for each chemical
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Toxic Chemical Release
Inventory Forms (cont.)
• Estimate of the maximum amounts of
each toxic chemical present at the
facility at the any time during the
preceding year
• Waste treatment or disposal methods
employed for each waste stream and
an estimate o the treatment efficiency
typically achieved
• Annual quantity of each toxic chemical
entering each environmental medium
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Public Data Bases
• Emergency Response Plans, MSDSs or
hazardous substance lists, and Tier I
inventory forms must be made
available by LEPCs for public
inspection at a designated location
during normal business hours.
• EPA must make TRI data available
through a national database on a cost
reimbursement basis.
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Trade Secret Protection
• Facility owners may withhold a
specific information if it is a
protected trade secret
• Specific chemical identities must
be provided to health
professionals, nurses, and doctors
to provide medical diagnosis or
treatment or for preventative
purposes under this title
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Enforcement
• EPA can enforce facilities to
comply provisions, after federal
district court order with up to
$25,000 per day fines
• A civil fine of up to $25,000 per
violation for failure to report spills
after a court order
• Repeated violations for reporting
failures can be $75,000
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E.O. 12856 3 August 1993
• Requires federal facilities within
the territorial United States to
comply with:
– The Pollution prevent Act of 1990
– Emergency Planning and Community
Right-to-Know Act (EPCRA) of 1986
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Question
• In light of homeland security
issues, how much information on
emergency response plans, drill
results and worst case scenario
analyses should be publicly
available?
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