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Comprehensive Emergency Response and Compensation Act 1980 42 U.S.C. § 9601 et seq. (1980) Love Canal July 2002 Environmental Law 2 Midnight Dumping July 2002 Environmental Law 3 Recycle Horrors • A Recycler accepted waste when his incinerator wasn’t working and piled up the wastes that later leaked. July 2002 Environmental Law 4 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 July 2002 Environmental Law 5 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. July 2002 Environmental Law 6 Pressure for Superfund • • • • • • Love Canal Times Beach “Midnight” Dumping “50,000” sites survey Anti-Administration Pressure Need for off budget financing July 2002 Environmental Law 7 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 July 2002 Environmental Law 8 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.” July 2002 Environmental Law 9 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 July 2002 Environmental Law 10 Created New Industries • Remediation Contractors • Risk Management Experts to evaluate sites before purchase • Legal bonanza – the full employment act for lawyers. July 2002 Environmental Law 11 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; July 2002 Environmental Law 12 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 July 2002 Environmental Law 13 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.) July 2002 Environmental Law 14 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. . . . July 2002 Environmental Law 15 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 July 2002 Environmental Law 16 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 July 2002 Environmental Law 17 Principle Provisions • §101. Definitions • §103. Notification • • • • Requirements §104. Response Authorities § 105. National Contingency Plan §106. Abatement Orders §107. Liability July 2002 • §111. Superfund • §113. Judicial Review and Contribution • §116. Cleanup Schedules • §121. Cleanup Standards • §122. Settlements Environmental Law 18 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 July 2002 Environmental Law 19 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) July 2002 Environmental Law 20 Over-riding question • How Clean is Clean? – – – – Is it return to pristine? Reasonable Risk? Insignificant Risk? Acceptable Risk? July 2002 Environmental Law 21 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 July 2002 Environmental Law 22 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. July 2002 Environmental Law 23 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 July 2002 Environmental Law 24 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 July 2002 Environmental Law 25 Union Carbide Facility, Bhopal, India July 2002 Environmental Law 26 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 July 2002 Environmental Law 27 Lost time Inury/100 workers Industrial Lost Time Injury Incidence 4 3 2 1 0 1977 1978 Chemical Industry July 2002 1979 All Industry 1980 1981 1982 1983 1984 Year Environmental Law 28 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 July 2002 Environmental Law All-Industry Average 29 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 July 2002 Environmental Law 30 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 July 2002 Environmental Law 31 Subtitle A • Mandates State Emergency Response Commissions (SERCs) – SERCs designate “emergency planning districts” – Local Emergency Planning Committees, e.g., Arlington, VA LEPC July 2002 Environmental Law 32 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 July 2002 Environmental Law 33 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 July 2002 Environmental Law 34 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 July 2002 Environmental Law 35 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 July 2002 Environmental Law 36 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 July 2002 Environmental Law 37 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. July 2002 Environmental Law 38 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. July 2002 Environmental Law 39 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. July 2002 Environmental Law 40 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 July 2002 Environmental Law 41 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 July 2002 Environmental Law 42 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. July 2002 Environmental Law 43 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 July 2002 Environmental Law 44 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 July 2002 Environmental Law 45 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 July 2002 Environmental Law 46 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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