Comprehensive Emergency Response and Compensation Act 1980

1. Comprehensive Emergency Response and Compensation Act 1980 42 U.S.C. § 9601 et seq. (1980)

2. Love Canal Environmental Law

3. Midnight Dumping Environmental Law

4. Recycle Horrors • A Recycler accepted waste when his incinerator wasn’t working and piled up the wastes that later leaked. Environmental Law

5. 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 Environmental Law

6. 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. Environmental Law

7. Pressure for Superfund • Love Canal • Times Beach • “Midnight” Dumping • “50,000” sites survey • Anti-Administration Pressure • Need for off budget financing Environmental Law

8. 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 Environmental Law

9. 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.” Environmental Law

10. 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 Environmental Law

11. Created New Industries • Remediation Contractors • Risk Management Experts to evaluate sites before purchase • Legal bonanza – the full employment act for lawyers. Environmental Law

12. 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; Environmental Law

13. 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 Environmental Law

14. 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.) Environmental Law

15. 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. . . . Environmental Law

16. 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 Environmental Law

17. 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 Environmental Law

18. §101. Definitions §103. Notification Requirements §104. Response Authorities § 105. National Contingency Plan §106. Abatement Orders §107. Liability §111. Superfund §113. Judicial Review and Contribution §116. Cleanup Schedules §121. Cleanup Standards §122. Settlements Principle Provisions Environmental Law

19. 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 Environmental Law

20. 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) Environmental Law

21. Over-riding question • How Clean is Clean? • Is it return to pristine? • Reasonable Risk? • Insignificant Risk? • Acceptable Risk? Environmental Law

22. 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 Environmental Law

23. Has Superfund Worked? • Joint and several liability results in unfair allocations of financial responsibility. • Cleanup standards are too stringent: one-size-fits-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. Environmental Law

24. 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 Environmental Law

25. 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 Environmental Law

26. Union Carbide Facility, Bhopal, India Environmental Law

27. Environmental Law

28. Environmental Law

29. Environmental Law

30. 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 Environmental Law

31. 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 Environmental Law

32. Subtitle A • Mandates State Emergency Response Commissions (SERCs) • SERCs designate “emergency planning districts” • Local Emergency Planning Committees, e.g., Arlington, VA LEPC Environmental Law

33. LEPC Plans • Must include: • 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 Environmental Law

34. 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 Environmental Law

35. 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 Environmental Law

36. 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 Environmental Law

37. 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 Environmental Law

38. 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. Environmental Law

39. 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. Environmental Law

40. 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. Environmental Law

41. 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 Environmental Law

42. 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 Environmental Law

43. 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. Environmental Law

44. 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 Environmental Law

45. 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 Environmental Law

46. 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 Environmental Law

47. 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? Environmental Law