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Title: CERCLAs Place Filling in the Gap


1
CERCLAs Place Filling in the Gap
  • CWA and CAA took pollutants out of the air and
    water created solid waste.
  • RCRA regulated on-going disposal of hazardous
    wastes and, to lesser extent, other wastes.
  • TSCA regulated new chemicals.
  • Old waste disposal sites posed problems CERCLA

2
Basic Structure of CERCLA
  • Tax on petrochemicals and hazardous waste
    generation to fund Superfund.
  • Superfund may be used to pay for response
    actions by EPA or states under section 104.
  • Clean-up must be consistent with National
    Contingency Plan NCP.
  • Clean up standards in section 121
  • Superfund is replenished by liability actions
    against responsible parties under Section 107

3
Liability Scheme Section 107
  • Liability under Section 107(a) and defenses under
    Section 107(b).
  • Review text on West pages 1678-1679.
  • What are the elements?
  • For what are responsible parties liable?
  • Who are the responsible parties?
  • What are important definitions?
  • Section 101

4
Elements of CERCLA Liability
  • Must be one of four responsible parties.
  • Must have a facility.
  • Release or threatened release of hazardous
    substances.
  • Release must cause incurrence of response costs

5
Damages
  • All costs of removal or remedial action by United
    States or State not inconsistent with NCP.
  • Any other necessary costs of response
    consistent with NCP.
  • Natural resources damages.
  • Costs of health assessment.
  • Prejudgment interest and litigation costs.

6
Responsible Parties PRPs
  • Current owners and operators of a facility.
  • Past owners and operators who owned facility at
    the time of disposal of any hazardous substance.
  • Persons who arranged for disposal of a hazardous
    substance at a facility generators.
  • Persons who transported a hazardous substance to
    a facility for disposal.

7
Hazardous Substance
  • Section 101(14) West pp. 1651-1652.
  • Hazardous waste under RCRA vs. hazardous
    substance under CERCLA.
  • Question of Minimum Quantity
  • City of Philadelphia vs. Stepan Chemical even a
    single penny could be enough
  • Does not include petroleum or its fractions
    Enron wasnt the first in the petroleum industry
    with good lobbyists

8
Hazardous Waste The Wonderful World of RCRA
Thomas Aquinas lives
  • Hazardous Wastes defined in 40 C.F.R. Part 260.
  • Only regulated after defined in 1980.
  • Listed Hazardous Waste and Characteristic
    Hazardous Wastes.
  • Many exceptions
  • Minimum concentration or characteristic
  • Small amounts normally in household waste exempt.
  • Large quantity mining wastes excluded.

9
Hazardous waste vs. hazardous substance
treatment of exemptions.
  • Cases involving mining sites first. Hazardous
    air pollutants, hazardous water pollutants, etc.
    mining waste exclusion inapplicable.
  • Petroleum exclusion cases.
  • Household hazardous waste
  • Murtha opinion.
  • Did Congress intend pizza store owners?
  • Is it fair to include municipal waste?
  • Is it fair to exclude municipal waste?
  • What about industrial generators like MM Mars or
    Campbell Soup, or the water company in Kramer?

10
Introduction to Kramer
  • Initial suit brought against original defendants.
  • Additional third party defendants brought in in
    two waves.
  • Four liaison groups established (assignments)
  • Original defendants
  • Third party defendant generators
  • Third party defendant transporters (all
    transporters ended up here)
  • Municipalities.

11
Facility
  • Text at Section 101(9) West page 1651.
  • Any site where any hazardous waste has been
    deposited, stored, disposed or come to be
    located.
  • Definition of disposal section 101(29) p.
    1655 refers us to RCRA.
  • RCRA section 1004(3) West p. 1219
  • Bottom line any place a hazardous substance has
    been located except in a consumer product
  • Includes landfills, lagoons and any place
    hazardous substances have been released. Some
    examples

12
A Facility.
A remedy for that facility
13
Apparently pristine sites can require remediation.
14
More of the Same Site
15
Release
  • Section 101(22) pp. 1654-1655.
  • Any leaking, spilling etc. includes disposal in
    barrels
  • Excludes
  • In workplace
  • Car emissions can include dirt by highway but
    not emissions
  • Certain nuclear releases TMI
  • Fertilizer application. Agriculture also has
    good lobbyists.

16
The CERCLA Cleanup Process Defined in NCP, 40
C.F.R. Part 300
  • PA, SSI and ranking using HRS (preliminary
    assessment, screening site assessment, hazard
    ranking system)
  • Listing
  • RI/FS (remedial investigation and feasibility
    study)
  • Remedy Selection PRAP and ROD (preliminary
    remedial action plan and record of decision)
  • RD remedial design
  • RA remedial action
  • OM operation and maintenance

17
Contribution
  • Section 113(f) pp. 1699-1700.
  • Added by SARA Amendments to clarify.
  • Such standards as judges deem appropriate.
  • Gore factors used Legislative history part of
    an amendment that did not become part of the law.
  • Great opportunity for creativity anything that
    is fair.

18
The CERCLA Cleanup Process Defined in NCP, 40
C.F.R. Part 300
  • PA, SSI and ranking using HRS (preliminary
    assessment, screening site assessment, hazard
    ranking system) Evaluation for removal action
  • Listing
  • RI/FS (remedial investigation and feasibility
    study)
  • Remedy Selection PRAP and ROD (preliminary
    remedial action plan and record of decision)
    selection standards section 121
  • RD remedial design
  • RA remedial action
  • OM operation and maintenance

19
Litigation/Negotiation Process
  • First step issuance of section 104(e) letters
    information of liability and history
  • May be follow up letter
  • Usually before RI/FS may allow private parties
    conduct RI/FS
  • Must conduct PRP search and give opportunity for
    PRPs to clean up before undertake remedial design
    and remedial action
  • Often will exercise authority under section 106
    to order PRPs to conduct remedy must comply
    unless good faith defense, at risk of treble
    damages.

20
Section 122 Settlement Provisions
  • Settlement authorities mixed funding,
    administrative agreement
  • Contribution protection very important
    section 122(c)
  • Effect reduces damages by the amount of the
    settlement
  • Incentive to settle with government
  • Covenant not to sue 122(f)
  • Procedures 122(e)
  • Special notice and moratorium
  • NBARs section 122(e)(3)
  • Factors volume, toxicity, mobility, strength of
    evidence, ability to pay, litigative risks,
    public interest considerations, prececedential
    value, and inequities and aggravating factors.

21
Contribution
  • Section 113(f) pp. 1699-1700.
  • Added by SARA Amendments to clarify.
  • Such standards as judges deem appropriate.
  • Gore factors used Legislative history part of
    an amendment that did not become part of the law.
  • Great opportunity for creativity anything that
    is fair.

22
Gore Factors
  • Articulated in cases, see Envtl.Trans. Sys., Inc.
    v. ENSCO, Inc., 969 F.2d 503 (7th Cir. 1992).
  • Ability to demonstrate that contribution to
    discharge, release or disposal of hazardous
    material can be distinguished
  • Amount of hw
  • Toxicity of waste
  • Degree of a partys involvement in generation,
    transportation, treatment, storage or disposal
  • Degree of care, taking account of waste
    characteristics
  • Degree of cooperation with federal, state of
    local officials to prevent harm to health or
    environment

23
Other Articulation of Standards
  • Another court (U.S. v. Davis, 31 F. Supp. 2d 45
    (D.R.I. 1998).
  • Extent to which cleanup costs are attributable to
    wastes for which a party is responsible
  • Partys culpability
  • Degree to which party benefited
  • Ability to pay
  • Consideration of Standards in CERCLA Section 122
    settlement provisions
  • Severability analysis Alcan decisions of 3rd
    and 2nd Circuits and Bell Petroleum (5th Circuit)
  • Practical consideration- likelihood of success

24
Kramer Operating History from ROD
  • 1974-1975
  • Tom Gola and Vincent Scially sign napkin
    agreement with Helen Kramer
  • Hire Fungaroli to do engineering design
  • GS Agreement with Philadelphia
  • Expansions and 24 hour a day operations
  • 1981- shut down by order of Gloucester County
    Court. Series of Helen Kramer fires
  • Sand and gravel operation followed by municipal
    waste landfilling
  • 1970 Marvin Jonas given one year registration
    right to receive chemical waste
  • Trench method used MSW to absorb liquid
    chemical waste
  • 1974 revoked chemical waste disposal permit
  • Sludge and septage sprayed on fields and placed
    in landfill

25
Kramer Regulatory History
  • 1981-82 Information requests
  • 1983 notice letter to conduct RI/FS to eight
    parties
  • 1985 Draft RI/FS
  • 9/6/85 letters to PRPs offering to have them
    conduct RD/RA sent September 6, 1986
  • September 25, 1985 ROD
  • 1986 revised and final RI/FS
  • Value Engineering Study
  • RD
  • Lawsuits filed 1988 and on-site remedy begun
    afterward.

26
Environmental Issues at Kramer
  • Landfill fires
  • Leachate seeps into Edwards Run
  • Leachate lagoons and sludge lagoons
  • Unstable steep slopes
  • Landfill gas posing threat of explosion and
    containing hazardous air pollutants
  • Leachate threatening Englishtown Aquifer

27
Kramer RI/FS Process
  • 1985 Draft RI/FS
  • Deferred alternative selection until after
    treatability study
  • Recommended
  • Groundwater/leachate collection and treatment
  • Active gas venting and treatment
  • Dewatering, excavation, and filling of the
    lagoons
  • Surface water controls
  • Security fence
  • Monitoring
  • In question upgradient slurry wall and capping
    material
  • Range of cost between 30 MM and 38 MM

28
ROD Remedy Selection
  • Based on staff draft RI/FS, staff summaries and
    recommendations, responsiveness summary
  • Elements
  • Construction of a groundwater/leachate collection
    trench
  • Construction of a clay cap over the site
  • Construction of an upgradient slurry wall
  • Construction of an active gas collection and
    treatment system
  • Dewatering, excavation and filling of the
    leachate ponds and lagoons
  • Security fence
  • Surface water controls
  • Monitoring program
  • Collection and treatment of leachate from trench
  • OM
  • Estimated cost

29
Elements Changed During RD and Value Engineering
  • Slurry wall surrounded landfill
  • Consolidated lagoon under cap
  • Multi-layer cap rather than clay cap
  • Moved landfill to protect wetlands and prevent
    rechannelization of Edwards Run constructed
    roller-compacted concrete wall

30
Remedy Implemented at Kramer
  • Empty lagoons and reconsolidate waste
  • Multi-layer RCRA cap
  • Slurry wall
  • Roller compacted concrete wall
  • Pump and treat leachate
  • Gas recovery, treatment and flaring
  • Fencing, site control and OM
  • Problems arose destruction of gas and electric
    system by lightening strike

31
Elements of Damages/Demands at Kramer
  • Interim removal action costs
  • RI/FS costs removal action
  • Costs of remedy implementation
  • Natural resource damages for loss of wetlands and
    loss of groundwater
  • State wanted mitigation open space
  • Could be offered by municipality
  • Undertake OM estimated at 20 years, but could
    take forever
  • Prejudgment interest and enforcement costs
  • Estimated cost - 180 million

32
Elements at Issue
  • Transporter vs. generator responsibility
  • Third party defendant vs. direct defendant
    joint and several vs. several only
  • Orphan share responsibility
  • Litigation risks
  • Culpability
  • Cooperation chance to take over
  • Municipal waste vs. industrial waste
  • Cost drivers
  • Toxicity vs volume Atlas
  • Causation

33
Municipal TR Method
  • Compare cost of closing municipal only vs
    industrial landfill
  • What are the problems with this approach?
  • TR Method initially
  • Based on basis document for municipal waste
    regulation
  • TR
  • Determine quality of typical municipal waste
    leachate
  • Look at Kramer leachate actually diluted
    groundwater
  • Normalize values to a toxicity factor
  • Divide MSW by Kramer total
  • What are the issues with this?

34
Rovers Response to TR - Issues
  • Response to Rovers
  • Calculate gas system costs based on toxicity of
    gases in MSW gas vs. Kramer
  • Expand leachate data and recalculate, examine
    representativeness of the data
  • analyze variety of landfills and find log
    normal distribution
  • Claim that it does not address cap or landfill
    gas
  • Challenges to representativeness of leachate
    data alternative calculation
  • Challenges to toxicity factors
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