Summary of Environmental Law in the United States

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13 Responding to Environmental Contamination

 

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See also Section 14: Environmental Emergencies

The primary federal legislation for responding to environmental contamination caused by the release of hazardous substances is the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, or Superfund). "Hazardous substances" include all Resource Conservation and Recovery Act (RCRA) hazardous wastes and a long list of other substances. 40 C.F.R. sec. 302.4. CERCLA does not cover releases of oil, which are covered by the Clean Water Act (CWA) and the Oil Pollution Act of 1990 (OPA).

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13.1 Identification, Assessment and Prioritization of Sites

 

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National Contingency Plan

The National Oil and Hazardous Substances Contingency Plan (NCP) establishes the procedures and standards for responding to releases of hazardous substances under CERCLA, discharges of oil under the OPA, and discharges of oil and hazardous substances under the CWA. The NCP: identifies acceptable methods for discovering, investigating, evaluating, and remediating contamination; establishes the responsibilities of federal, state, and local response authorities; sets criteria for prioritizing federal responses; and, sets standards for testing alternative technologies for remediating releases of hazardous substances. Under the NCP, EPA also requires regional and local contingency plans, both of which are designed to ensure effective and efficient response to environmental contamination. See 40 C.F.R. pt. 300. See also Section 14.2: Emergency Response and Preparedness.

National Priorities List

As part of the NCP, the Environmental Protection Agency (EPA) is required to prepare a national list of top priority sites. Only those sites placed on the National Priorities List (NPL) are eligible for federal Superfund-financed remediation. Three methods are used for placing a site on the NPL. 42 U.S.C. sec. 9605(b). Most sites are placed on the NPL based on their evaluation according to the Hazard Ranking System (HRS). The HRS is a comprehensive methodology for assessing and comparing the relative degree of risk to human health and the environment posed by specific sites and facilities. 42 U.S.C. sec. 9605(c); 40 C.F.R. pt. 300, App. A. States are also entitled to select one top priority site to be automatically placed on the NPL. Finally, in some circumstances where a release poses a "significant threat to public health," EPA can list a site on the NPL that would otherwise not qualify.

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13.2 Response and Cleanup Requirements

 

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The National Response Unit (NRU), located at the U.S. Coast Guard Headquarters, is the national communications center for coordinating response activities under CERCLA, 42 U.S.C. sec. 9603, and the Clean Water Act. 33 U.S.C. sec. 1321(j)(2). The NRU receives notice of spills, discharges, or releases and relays the information to the appropriate federal, state, and/or local response teams. See 40 C.F.R. pt. 300.

National and Regional Response Teams

According to the NCP, national planning and coordination is the responsibility of a National Response Team (NRT), consisting of representatives from all relevant federal agencies. The NRT is responsible for maintaining the nation's ability to respond to major oil discharges and releases of hazardous substances, for monitoring and reviewing regional responses, and for coordinating regional, state, local, and private response actions. A Regional Response Team is responsible for regional planning and preparation for responses. An On-Scene Coordinator (OSC) or Remedial Project Manager (RPM) supervises federally-funded response efforts at particular sites. Both the OSC and RPM are designated in advance by the appropriate agency (EPA, the Coast Guard, or Department of Defense, depending on where the site is located). The OSC is also responsible for developing federal local contingency plans. 40 C.F.R. sec. 300.120(d).

CERCLA Cleanup Authorities

CERCLA provides the federal government with broad authority to clean up contaminated sites. In cases where a release of a hazardous substance poses an "imminent and substantial endangerment" to the public health or welfare, the EPA, Department of Agriculture, Department of Commerce, Department of Defense, Department of Energy, and Department of Interior can issue an order, enforceable in the federal courts, to take all measures to respond to the site, 42 U.S.C. sec. 9606, as well as enter into settlements, 42 U.S.C. sec. 9622

Oil Pollution Act Cleanup Authorities

The OPA does not create any new cleanup authorities for EPA, but it does allow EPA to recover costs that it incurs in cleaning up oil discharges under authority granted by CERCLA or the CWA. 33 U.S.C. secs. 1321, 2715. See also Section 9.8: Liability and Enforcement.

RCRA Cleanup Authorities

Under RCRA, EPA has specific powers to issue an administrative order or bring a civil suit to compel past or present hazardous waste operators to respond to any "imminent and substantial endangerment" to health or the environment. 42 U.S.C. sec. 6973. Notice must be given to the state, and the public must be notified and given an opportunity to comment on any proposed settlement. 42 U.S.C. sec. 6973(d). Violators of any order can be fined up to US$5000 for each day of violation. 42 U.S.C. sec. 6973(b). Under RCRA, EPA can require an owner or operator of any hazardous waste treatment, storage or disposal facility to clean up a release of hazardous waste or waste constituents at any solid waste management unit at the facility, even if the unit was used by a prior operator and contains no hazardous wastes. 42 U.S.C. sec. 6924(u), 6928(l). EPA can also issue orders requiring corrective actions at facilities operating under interim permits. 42 U.S.C. sec. 6928(h). All RCRA hazardous wastes are also hazardous substances under CERCLA. See also Section 12.2: Hazardous Wastes.

Furthermore, EPA can order an abatement action where an actual or threatened release of a hazardous waste might be potentially harmful to the public health and the environment. In addition to the authority of the EPA, cleanup authority over natural resource damages is shared by the following federal agencies: Department of Agriculture, Department of Commerce, Department of Interior, Department of Defense, and the Department of Energy. The authority granted to the DOE and the DOD is limited to releases occurring on their properties. See also Section 12.2: Hazardous Wastes.

Other Specific Cleanup Authorities

Under Subtitle I of RCRA, owners and operators of certain underground storage tanks (UST's) must also notify government officials of the tanks' existence. They must also: institute a release detection program; report releases over certain sizes; investigate releases; submit a site characterization report; and, in some cases, take corrective action. 40 C.F.R. pt. 280. To close a UST permanently, owners and operators must notify the implementing agency and empty and clean the UST and site. 40 C.F.R. pt. 280, subpt. G.

Under the Clean Air Act (CAA), EPA has broad authority to respond to any accidental releases of hazardous air emissions that create an imminent and substantial endangerment to public health, public welfare, or the environment. 42 U.S.C. sec. 7412(r).

There also exists, in addition to coverage under CERCLA, a specific spill cleanup policy covering spills of polychlorinated biphenyls (PCB's). 40 C.F.R. pt. 761.

State Authorities

Most state environmental agencies have the authority to clean up hazardous sites, or to order them cleaned up. State laws can set their own cleanup criteria and policies. Typical state cleanup criteria will depend on one or more of the following: specified maximum contaminant levels, EPA-issued guidelines, water quality criteria, background levels of pollutants, or some measurement of risk. Only a few states have issued separate hazardous materials remediation standards.

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13.3 Government Funds for Cleanup

 

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There are several government trust funds earmarked for responding to environmental contamination. These include the Hazardous Substances Superfund, the Leaking Underground Storage Tank Trust Fund, the Oil Spill Liability Trust Fund, and numerous state funds.

The Hazardous Substances Superfund

The Hazardous Substances Superfund, 26 U.S.C. sec. 9507, includes funds appropriated by Congress, revenue from taxes imposed on petroleum or certain chemicals (see Section 24.5), as well as penalties or punitive damages received under CERCLA. 26 U.S.C. sec. 9507(a)(4), (5). Under CERCLA, the fund can be used for: government response costs; necessary response costs incurred by other persons in carrying out the National Contingency Plan (NCP), assuming that they have been certified by the appropriate federal official; certain response costs under the Clean Water Act; and, some technical assistance grants. In paying a claim from the Superfund, the federal government assumes all rights against other parties. 42 U.S.C. secs. 9611, 9612. Private Superfund suits, asserting violations of CERCLA, are not permitted to be brought against states in federal court.

The Oil Spill Liability Trust Fund

The OPA established an Oil Spill Liability Trust Fund, 26 U.S.C. sec. 9509. The fund will reimburse: the payment of certain removal costs consistent with the NCP; the payment of costs incurred by federal, state, or tribal authorities for assessing natural resource damages and implementing plans for the restoration or replacement of equivalent resources, as long as it is consistent with the NCP; and, payment of certain federal administrative, operational, and personnel costs reasonably necessary for implementing the OPA. 33 U.S.C. sec. 2712. Parties who cause the oil discharge through their willful misconduct or gross negligence cannot obtain reimbursement from the fund. 33 U.S.C. sec. 2712(b).

The Leaking Underground Storage Tank Trust Fund (LUST)

The LUST Fund is comprised of response costs recovered by the federal government and the proceeds from taxes on motor fuels, gasoline, diesel and aviation fuel, and marine fuels used for commercial transport. The LUST Fund can be used to reimburse costs of remediating release from underground storage tanks. It otherwise operates much the same as the Superfund under CERCLA. 26 U.S.C. sec. 9508.

State Superfunds

Every state or territory, except Nebraska and the District of Colombia, has established some kind of "superfund" for responding to environmental contamination, although the authorities and scope of the funds vary.

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13.4 Liability

 

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Liability Under CERCLA

CERCLA imposes liability for cleaning up contamination caused by hazardous substances on four categories of responsible parties: (1) the owner or operator of a vessel or a facility; (2) the owner or operator of a vessel or facility at the time of disposal of any hazardous substance; (3) the persons who arranged for disposal of any hazardous substances located on the site; and (4) any transporter of hazardous substances to a site the transporter selected. 42 U.S.C. sec. 9607(a)(1)- (4). Although agreements can be made to apportion liability between responsible parties, no agreement will shield any responsible party from CERCLA liability. CERCLA may also impose liability retroactively for contamination predating the Act's passage in 1980.

Defenses to Liability Under CERCLA

CERCLA is a strict liability statute. The only defenses allowed are: act of god, act of war, or, in some limited circumstances, an act of a third party. 42 U.S.C. sec. 9607(b). The third party defense includes protection for innocent landowners, provided they had no reason to know of the existence of hazardous substances and made all "appropriate inquiry into the previous owner and uses of the property consistent with good commercial or customary practice." 42 U.S.C. sec. 9601(35).

Recoverable Costs Under CERCLA

Responsible parties under CERCLA are liable for: all cleanup costs incurred by federal, state, or tribal governments that are not inconsistent with the NCP; any other necessary response cost incurred by any other person, consistent with the NCP; natural resource damages; and, the costs of any health assessment or health effects study. To recover response costs under CERCLA, the response activities must be conducted consistent with the NCP. 42 U.S.C. sec. 9605; 33 U.S.C. sec. 1321(c); 40 C.F.R. pt. 300. Response costs may be recovered from other parties or from the Superfund. See Section 13.2: Response and Cleanup Requirements.

The Oil Pollution Act of 1990

The OPA establishes a comprehensive liability scheme similar to CERCLA, but applicable to discharges of oil. Any owner or operator (or other responsible party) of a vessel or facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon navigable waters adjoining shorelines or the exclusive economic zone is liable for certain specified removal costs and damages. 33 U.S.C. sec. 2702(a). "Removal costs" mean any costs incurred by the federal, state, or tribal government under the CWA's oil spill response provisions, 33 U.S.C. sec. 1321, or under state law, and any removal costs incurred by any person consistent with the NCP. "Damages" include: damages to natural resources; economic losses to real or personal property; loss of subsistence use of natural resources; the net loss of taxes, royalties, or fees; loss of profits; and, any increased costs of providing public services. 33 U.S.C. sec. 2702(b)(2). Any third party found to be the sole cause of a discharge can be held liable as a responsible party. 33 U.S.C. 2702(d). There are specific statutory limits on liability, depending on the size and nature of the vessel or facility. 33 U.S.C. sec. 2704.

Financial Responsibility Requirements

Financial assurance requirements are part of the liability systems under CERCLA, RCRA, and the OPA. CERCLA requires all owners or operators of vessels over 300 gross tons or offshore facilities to establish evidence of financial responsibility equal to the limits of liability to which they could be subjected for a discharge of oil. 42 U.S.C. sec. 9609(a)(1)(C).

State Cleanup Laws

Most state cleanup statutes hold responsible parties strictly liable; that is, the states do not require proof of negligence or deliberate misconduct in holding a responsible party liable for cleanup costs. More than half of the states impose both strict liability and joint and several liability. A few impose joint and several liability, but not strict liability. All but a few states can impose civil penalty provisions for failure to comply with their cleanup statutes. Punitive damages, typically double or triple the state's response costs, are available in approximately half of the states. Under state common law, actions based on nuisance, negligence, or strict liability could also form the basis for liability. See Section 4.2: General Environmental Rights and Responsibilities.

Brownfields

Brownfields are abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. There are an estimated 450,000 brownfield sites in the United States. More than 35 states have voluntary cleanup programs (VCPs) which allow private parties some protection from future State enforcement action at a site if the party voluntarily cleans up the contaminated site. These assurances usually come in the form of "no further action" letters and covenants not to sue. Nearly all states took some action in 1997 to advance the reuse of brownfields. Some of the assistance offered to those who cleanup brownfields are grants and revolving loan funds. The Taxpayer Relief Act of 1997, Pub. L. No. 105-34, title IX, subtitle E, 111 Stat. 788 (codified in scattered sections of U.S.C. 26 and 31), enables businesses wishing to redevelop brownfields to apply for a tax break for recovery of redevelopment and cleanup costs. The 106th Congress extended the brownfields cleanup tax incentive to December 31, 2003, and expanded it to make all brownfields certified by a state environmental agency eligible for the tax break. On January 11, 2002, the President created Small Business Liability Relief and Brownsfields Revitaliation Act (P.L. 107-118), which formally established EPA's brownfields program, and provided relief from Superfund liability for small businesses.

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13.5 Transfer Restrictions or Requirements

 

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There is no federal restriction on the transfer of contaminated property (except for property transferred from .the federal government, see 42 U.S.C. sec. 9620), although the "innocent landowner defense" under CERCLA does provide an important incentive for thorough pre-transaction investigations. 42 U.S.C. secs. 9607(b); 9601(35). Several states do restrict the transfer of contaminated sites. Two states, New Jersey and Connecticut, require cleanup of a site before transfer. N.J. Stat. sec. 13:1K-7 (1993); Conn. Gen. Stat. secs. 22a-134a to -134d (1994). Some states require the seller to disclose information about contamination on the property before it can be sold, some place a priority lien on properties that have been cleaned up with state funds, and others place a record on the deed of any contamination. A few states maintain databases that identify all contaminated sites in their states.

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13.6 Public Notification

 

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CERCLA

Cleaning up contaminated sites under CERCLA involves substantial efforts to notify and involve the public in the process. For example, before adopting a plan, CERCLA requires publication of a notice and a brief description of the remediation plan. The complete proposed plan must be made available for public review at or near the site and there must be a public hearing and an opportunity to submit written comments on the proposed plan. 42 U.S.C. sec. 9617. Owners and operators of sites from which there has been a release of hazardous substances must notify any potentially injured parties. 42 U.S.C. sec. 9611(g).

RCRA

Under RCRA, when EPA learns that a hazardous waste at any site has presented an imminent and substantial danger to human health or the environment, EPA must immediately notify local government agencies and require notice of the danger to be posted at the site where the waste is located. 42 U.S.C. sec. 6973(c). See Section 14.1: Emergency Notification and Reporting and Requirements, Section 12.2: Hazardous Wastes.

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2003