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Trustee

" for government body brings suit. o Is person who brings the lawsuit such as National Park Service

who are PRPS

- Current Owners and Operators - Former Owners and Operators - Generators or Arrangers - Transporters

What releases are not regulated?

- Motor vehicle exhaust emissions homeowners - Aircraft emissions - Emissions from boats and vessels - Certain nuclear releases - Normal fertilizer application - Many of these types of releases are regulated elsewhere (non‐CERCLA)

o CERCLA allows for lawsuit to brought to recover money for damage for natural resources only on Public land

- Only covers Fed, State or Tribal resources (not damage to private property

- Two part test to see if qualify for PRP

- Owns the hazardous substance, and - Arranges for disposal.

Two types of CERCLA Response Actions

- Removal - Remediation

What releases are regulated?

- The spill or release of any hazardous substance in excess of its RQ - Historic or long‐term environmental contamination involving a hazardous substance in excess of an RQ:

statuate of limitations for removal action

3 years

statuate of limitations for remediation action

6 years

Hazardous Substance

: a material listed in the statute that requires release notification requirements.

National Priorities List

A list that prioritizes the releases or threats of release of hazardous materials in the US for purpose of allocating financial and administrative assistance.

ARARs

Applicable or Relevant and Appropriate Requirements the highest clean up requirements under Fed or State/Local law‐ necessary if the hazardous substance is left onsite). goal is to remove all hazardous substance on site but sometimes this won't be feasible to clean land 100% and if some substance is left behind, they must comply with ARAR

National Contingency Plan

Designed by federal government to address responses to releases of hazardous substances. Sets forth procedural aspects of handling a superfund cleanup decides what groups are involved at site *Specifies the format of EPA's administrative record for CERCLA actions.*

remedial action

EPA's implementation of the Remedial Design project - Often costs tens of millions of dollars - Often takes decades or more to complete

Superfund

Is a fund of money, large, held by federal government, and all this money go into bank account and they use the money to clean up containment sites

Remediation

Lengthy response operation to obtain a permanent cleanup of the contaminated site and restore it to sufficient quality. o Ex/Excavation, construction of dikes, trenches, or clay covers, treatment of contaminants to neutralize their effects. o Major action to get it to permanently clean it up o More than 2 years, and more than 2 million then REMEDIAL ACTION

- Potentially Responsible Parties (PRPs

Potentially Responsible Parties (PRPs - are the ones who pay for the remediation. - Ultimately pay for remediation, potentially responsible parties pay for remediation, even if superfund pays, PRP must pay them back

steps for CERCLA remedial process

Preliminary assessment, then the RI/FS study if needed next, then the record of decision, then we going to have the remedial design, then remedial action

CERCLA nickname

SUPERFUND

o Joint and Severable Liability

Severable any one PRP could be on hook for 100% of cost cleanup even though they must not be responsible. Former owner that spilled substance and they sell property and never knew or used substance, and EPA finds it's a CERCLA site an forcing you to clean up because of PRP because you are current owner. However so is former owner PRP, but you can't go back because they don't exist so can't sue so you are on the hook for 100%, if you can't find any PRP former that don't exist or have money then you liable af

Potentially Responsible Parties" (PRPs)

These people have ownership over the contamination at that site

RI/FS Remedies are evaluated using 9 Criteria

Threshold Criteria: Primary Balancing Criteria: Modifying Criteria:

- Facility

a building, structure, installation, equipment, pipe or pipeline, well, or any site or area where a hazardous waste has come to be located.

o Innocent Purchaser Defense:

a very limited defense to PRP status under SARA.- raw land, no roads, no facility manufactured, no human step, = then they would have no reason to know of hazardous material forests

- EPA may seek a judicial order requiring a liable party to

abate any danger to human health or the environment. 42 U.S.C. 9606. o There is danger because of substance that can hurt people/environment at risk of harm o Abate means to stop danger or to correct the danger

- Administrative Orders

allow EPA to address imminent or substantial endangerment from a release without judicial involvement or notice and comment FROM AGENCY ITSELF, issue out of order of agency itself o A challenge is done after the fact and under an "arbitrary and capricious" standard, which is difficult to meet

Release

any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandoning or disposing of any hazardous chemical, extremely hazardous substance, or other hazardous substance into the environment. o Anything that put hazardous chemical, substance, out into environment then its considered release to get into the environment

- Abatement actions

brought by EPA only, not private parties, to compel a PRP to pay for an abatement directly, rather than using the Superfund. o Abatements may be more limited than full scale removal/remediation, because abatement is for imminent endangerment o They go into court without iffs because of harm so bad to human/environment

if you exceed reportable quantity

call national response center 1800-424-8802 tell them what you released, how much, what you are going to do

Strict Liability

don't have to show no intent, misconduct, not on purpose, reckless, no mental state does not have to be proven the fact that is released is enough to hold you responsible

o Retroactive Liability

even if property containment long ago then it is retroactive because it goes back forever to before you even you owned property

- Liability

exists for ALL releases of a hazardous substance, even if below the RQ

- Release reporting

is only required for releases in excess of the RQ. Reports are made by calling the National Response Center at 1‐800‐424‐8802 if it is exceeded, reported only if released excess amount quantity

Secured Creditor Exemption

no PRP liability for creditors by virtue of their ownership interest in the security for the debt. Secured creditor like a mortgage or bank they do have security deed that says you own property until mortgage paid off

What is included in the definition of CERCLA "hazardous substances" (what categories of chemicals/wastes/pollutants are included)

o All hazardous waste are CERCLA substances o CWA hazardous substance or toxic pollutant; o RCRA hazardous wastes ; o TSCA imminently hazardous chemical substance or mixture; o CAA hazardous pollutants; o Other chemicals and substances listed under CERCLA at 40 CFR 302.

Removal

o An action in response to an environmental emergency to contain the problem and reduce immediate risk to human health and the environment. o CERCLA substance released into environment and you do have to take action to reduce it o Ex/ Cleaning up a spill or putting a fence or barrier around the release site, monitoring wells, secondary containment, etc. - Rule of thumb: < 2 years, <$2 million

major Amendment modification in CERCLA

o Superfund Amendments Reauthorization Act (SARA) in 1986.

- Transporters are liable under limited circumstances:

o The transporter accepts the hazardous substance for transport to a TSDF; o The transporter selects the facility; normally the generator selects the TSDF because you have to do audit, inspection, agreement, research financials o There is a release of the hazardous substance at the facility.

- Under CERCLA, the EPA can respond if:

o There is a release or substantial threat of release into the environment of a hazardous substance; o There is a release or substantial threat of a release into the environment of a pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare

CERCLA purpose

o To address the hazards to human health and the environment presented by inactive or closed hazardous waste sites

- Control Test

ownership interest or participation in management (captures parent companies) Reason is trying to caught parent companies who were trying to get out of this through subsidiary parties

- Petroleum Exclusion

refined petroleum products are excluded from CERCLA regulation, but are regulated under RCRA (are hazaroudous waste if put into ground)

- Consent Decree/Consent Orders

result from settlement of CERCLA cases. Includes agreements for payment of orphan shares and final agreements for de minimus contributors. o SARA imposes conditions on EPA's settlement of CERCLA claims.

- Cost recovery actions

result in EPA or a private party being able to recover costs of remediation from the Superfund

- Failure to Comply

results in CMPs of $25,000 per day per violation and punitive damages

- Environment

surface water, ground water, drinking water supplies, land surface, subsurface strata, and ambient air.

- Reportable Quantity

the amount of hazardous substance released in an environment that triggers a reporting requirement under CERCLA if released into the environment. the reportable quantity of any chemical has to be reported CERCLA will hold you accountable even if RQ is below

remedial design

the plans and specifications (engineering design) for the remediation proje

record of decision

which outlines EPA's investigation and the chosen remedy. - EPA's investigation and the background information - The chosen remedy for the remediation - How CERCLA is satisfied by the remedy - Which ARARs are applicable & how met - Cost effectiveness of the remedy - EPA's response to public comments - State agreement (if Superfund is to be utilized)

- Joint and Several Liability

will hold any PRP 100% liable for the entire remediation costs.

Primary Balancing Criteria:

• Long‐term effectiveness, including permanence; • Reduction of volume, toxicity, or mobility through treatment; • Short term effectiveness; • Implementability; • Cost

Threshold Criteria:

• Overall protection of human health and the environment; • Compliance with ARARs (Applicable or Relevant and Appropriate Requirements‐ the highest clean up requirements under Fed or State/Local law‐ necessary if the hazardous substance is left onsite).

modifying Criteria:

• State acceptance; • Community acceptance