- Cleaning up hazardous wastes that harm health and the environment—whether the wastes are newly released or historical. Remedies are selected based on risk.
- Paying for cleanups. Broad, no-fault liability for “potentially responsible parties,” with the Superfund as a backup.
- Emphasis on informing and involving the public.
In the 1890s, William T. Love set out to build a model community near Niagara Falls, New York. His vision included a canal intended to provide hydraulic power. By 1910, when the dream failed, Love Canal was just a partial ditch. From the 1920s until after World War II, the ditch was used as a dumpsite for wastes, including over twenty thousand tons of hazardous chemicals.
Much of that came from Hooker Chemical Company, which took over in the 1940s. Hooker was not a fly-by-night dumper. It took protective measures that were standard at the time, including draining the canal, lining it with a thick layer of clay, and placing the wastes in barrels. In the early 1950s, Hooker covered the wastes with twenty feet of soil and warned that the site should be sealed off to protect against contact with people or animals. But the City of Niagara Falls wanted the land and pressured Hooker to hand it over. Within a few years, it became a neighborhood of a hundred homes and two schools.
As early as the 1960s, there were instances of escaping chemical wastes. The big disaster came in 1978, triggered by a record rainfall. Barrels rose to the surface of the saturated ground. There were puddles of leaked chemicals in the streets, schoolyards, and basements of homes. High rates of disease were reported by residents, including cancers and birth defects. The area was evacuated, but too late to prevent significant exposure to toxic chemicals.
Bad as it was, Love Canal was just the tip of the iceberg. Officials estimated there were hundreds, if not thousands, of old dumpsites bad enough to endanger public health. One contemporary article called these old dumpsites “time bombs with burning fuses—their contents slowly leaching out. And the next victim could be a water supply.”1
Congress needed to respond quickly with federal legislation that could deal both with these old dumpsites and with new spills of toxic chemicals—estimated at over three thousand per year. There were three big questions. For the questions of how to “fix” the damage, and how to pay for it, Congress responded with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), enacted in 1980.2 The third big question—how to prevent future contamination of the environment by improper disposal of hazardous wastes—is addressed in the Resource Conservation and Recovery Act (see chapter 7).
CERCLA has two focuses: responding to spills and other releases, and allocating liability for the costs of a response. Basically, the act provides for federal control of the response and private liability for the costs.
One important feature of CERCLA is the Superfund, created to ensure that funds were available for immediate, effective governmental response to emergencies. The Superfund can be used to finance governmental response actions, subject to reimbursement from responsible parties.
CERCLA deals with the release or threatened release of hazardous substances from a vessel or facility into the environment. Those terms, as used in CERCLA, need some explaining.3
What’s a Hazardous Substance?
The term hazardous substance, for purposes of CERCLA, is very broad. The definition incorporates by reference the lists of substances regulated under several other federal environmental acts, such as the Clean Air Act and Clean Water Act. In addition, the EPA can add any substance that “may present substantial danger” if released into the environment. The EPA has designated about two thousand hazardous substances under this authority. In addition, here are some general concepts:
- Mixtures: If a hazardous substance is mixed with a nonhazardous substance, the entire mixture becomes a hazardous substance. For example, if a hazardous substance is spilled on the ground and migrates through the soil, all of the contaminated soil is deemed to be a hazardous substance. This also means that you can’t avoid hazardous waste rules just by diluting the waste.
- Not just waste: The contents of a hazardous waste disposal facility are an obvious example of hazardous substances. But CERCLA is not limited to the release of hazardous wastes. It encompasses the release of any hazardous substance, including commercially useful chemicals—for example, if a tank truck overturns and spills toxic chemicals. Once released, though, even useful chemicals become waste, and the release site is referred to as a hazardous waste site.
- Petroleum exception: In short, CERCLA’s definition of “hazardous substance” encompasses almost anything you might think of, but with one major exception. Petroleum and natural gas are generally excluded (with limited exceptions). Petroleum is addressed by the Oil Pollution Act and the Resource Conservation and Recovery Act.
What’s a Release?
Almost any time a hazardous substance is freed from its normal container into the environment is deemed a release under CERCLA. The statutory definition includes “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.” In fact, the definition is so broad that the hazardous substance does not even have to escape from its container. The term “release” includes “the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant.”4
A release can be instantaneous, such as from an explosion at a chemical factory or from a tank truck overturning. Or it can be a slow drip from a cracked pipe. It can be invisible—such as a leak from an underground storage tank. It can be accidental, such as a spill of valuable chemicals. Or it can be intentional, such as “midnight dumping” of hazardous wastes by somebody knowingly breaking the law.
Volume Is Not a Criterion
A release in any quantity is still a release. Volume is relevant only to reporting requirements (discussed later in this chapter), not to the definition of a release.
Age Is Not a Criterion
CERCLA is not limited to recent releases. A release might have happened long ago, even before CERCLA existed. Nonetheless, if there is hazardous substance contamination, it falls under CERCLA jurisdiction. Both the cleanup requirements and liability provisions apply, even if the release was legal at the time it first occurred. In that sense, there is no statute of limitations for CERCLA.
The threat of release is not defined in the act, but courts give the term its commonsense meaning. Typically, if there is a hazardous substance at a facility, which the owners-operators have shown themselves unwilling or incompetent to control, that will be deemed a threatened release so as to justify EPA’s exercise of its CERCLA powers. An example would be the storage of toxic wastes in an improper container, such as a corroded tank.
What Is Not a Release?
Like most statutory provisions, there are exceptions and exclusions, often because they are covered by other statutes. For example, CERCLA does not apply to motor vehicle exhaust, nuclear material from a nuclear incident, a workplace release that does not migrate beyond the workplace, the normal application of fertilizer, or the application of registered pesticides.
From a Vessel or Facility
CERCLA applies to any release or threatened release from a vessel or facility. A vessel includes watercraft and virtually any makeshift contrivance that will transport something on water. (The rest of this chapter will use the word “facility” to broadly include vessels as well.)
The word “facility” is broadly defined to include almost every source imaginable. It encompasses not just buildings and other structures, but also pipes, storage containers, equipment, ditches, motor vehicles, airplanes, and much more. Lest there be any doubt of its intended breadth, the statutory definition ends with a catch-all: “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” The only potential sources of a release not included are consumer products in consumer use.
Into the Environment
For CERCLA to apply, the release or threatened release must be “into the environment.” This is broadly defined to include surface waters, groundwater, the drinking water supply, soil (surface and substrata), and the ambient air.
Whether a release is new or has lain undiscovered for years, the authorities cannot react until they know about it. Hence, reporting of releases is an important function addressed by the act.
Mandatory Reporting by Facility
Anyone in charge of a facility (or vessel) involved in a release must report to the National Response Center (NRC) as soon as a release occurs or is discovered.5 The releaser’s obligation to report is triggered only if the release is a reportable quantity. How much is a reportable quantity? It varies, depending on the type of hazardous substance involved, and sometimes depending on the medium into which it is released (land, water, and so forth).
The act imposes stiff civil and criminal penalties for failure to report, including up to three years in prison for a first offense.
Discovery by Others
Many releases are discovered by someone other than the releaser, often years or decades after the initial event. For example, federal, state, or local authorities may discover a release in the course of a governmental inspection. As a direct result of CERCLA liability provisions, investigations by expert consultants are becoming more routine in connection with property sales or development. These investigations are specifically looking for evidence of hazardous substance releases.
Reports of all releases go to the National Response Center (NRC). The NRC serves as the clearinghouse for reports of pollution events under multiple environmental laws. CERCLA applies to both new and old releases. New releases should be reported as soon as they occur. Past releases should be reported as soon as discovered.
When a release is reported, the EPA or another federal agency is appointed as lead agency. State and local participation is handled through standing emergency response committees established under the Emergency Planning and Community Right-to-Know Act. The lead agency may conduct the response, or the affected state if it has the capability. Alternatively, a responsible party may do so, usually with persuasion or compulsion from the EPA.
A framework for responding to releases is provided by the National Contingency Plan (NCP), 6 which applies both under CERCLA and the Oil Pollution Act (OPA) (see text box on National Contingency Plan in chapter 8).
Assessment and Ranking
The magnitude, severity, and urgency of the release are key to determining what response measures to take. Typically, there is a rapid initial assessment to determine if there is immediate danger to health or the environment that requires emergency response measures. Subsequently, there may be more thorough inspections and assessments, depending on the circumstances.
Hazard Ranking System
One important assessment tool is the Hazard Ranking System (HRS).7 EPA assigns scores to hazardous waste sites, based on several factors. The scoring helps in comparing different release sites and deciding which need the greatest attention. Some of the key criteria are
- How toxic is the substance?
- How much was released?
- What is the size of the population potentially exposed?
- Could the release contaminate drinking water or otherwise endanger public health?
National Priorities List (NPL)
The National Priorities List (NPL)8 is a list of the worst hazardous waste sites, in terms of danger to human health and the environment. These sites get the most thorough investigation and response. Most sites on the National Priorities List are there because they got a high score on the EPA’s Hazard Ranking System. Some sites get listed even without a high score; for example, each state can designate its own worst site.
The EPA’s decision to add a site to the NPL is a formal agency action subject to public notice and comment requirements. The decision is also subject to judicial review, although court challenges are usually unsuccessful. The people likely to resist listing are the property owners and other responsible parties, because listing requires a more intensive and costly cleanup and affects property values. On the other hand, state and local authorities may support listing because it can give access to Superfund financing (the Superfund is discussed later in this chapter).
Remedial Investigation and Feasibility Study (RI/FS)
Hazardous waste sites are subject to various assessments at various times, and with varying goals, depending on the needs of the situation. The Remedial Investigation and Feasibility Study (RI/FS)9 is the most rigorous type of assessment, and it typically costs $1 million or more. It is conducted for sites that, based on preliminary assessments, merit long-term remediation action. In its remedial investigation (RI), the EPA determines the acceptable long-term exposure levels—essentially, how clean the site needs to be—based on how dangerous the substance is and what populations or resources are exposed. The feasibility study (FS) evaluates various response actions to see which could achieve the level of “cleanness” dictated by the RI. The feasibility study doesn’t select a specific remedy, but essentially identifies and evaluates candidates according to the so-called Nine Criteria for remedy selection, described in the following section.
Response Actions: Removal or Remediation
The term “response” generally connotes containment, cleaning up, and restoring a site to a more or less “safe” condition. There are two alternative types of response, referred to in the act as a removal action and remediation actions.10 These two approaches are not mutually exclusive, in that it’s possible to have removal followed by remediation (but not the reverse).
Essentially, removal is a short-term response intended to quickly protect against acute danger from a release or threatened release, but not intended to provide permanent solutions. The name “removal” is unhelpful. It would be more descriptive to call it a temporary or “limited emergency” action. Circumstances that might trigger a removal action include immediate endangerment of humans, risk to drinking water supplies, bad weather that threatens to worsen the release, and threat of fire or explosion.
Because of the need for speed, the EPA itself often conducts removal actions. An agency-conducted removal is paid for by the Superfund (subject to later reimbursement by the responsible parties). A removal action financed by the Superfund is normally limited to one year and maximum $2 million in expenditure.
The second type of response, remediation, is a long-term, more thorough, and more expensive cleanup approach. Its goal is to permanently eliminate or neutralize the hazard. It might cost a few million dollars, or tens of millions or more; there is no upper limit. Remediation may occur instead of or in addition to removal actions, depending on the circumstances.
Unlike removal actions, there is no uniform limit on the cost and duration of EPA-conducted remediation actions. There are, however, other restrictions. The EPA cannot undertake remedial action (using Superfund money) unless the site is listed on the National Priorities List. Further, the EPA cannot undertake remediation without the involvement of the state where the release site is located. This includes a commitment by the state to pay 10 percent of the remediation costs, and further to assure maintenance of the site after remediation is completed.
What Response Measures Are Available?
There are many possible response measures,11 and the EPA selects one or more to fit the needs of a particular site. The array of response measures includes:
- Fencing the site or posting signs to limit access
- Capping contaminated soil with a clay cover to reduce migration of contaminants
- Drainage controls to reduce migration due to precipitation (such as storm runoff) flowing onto or away from the site
- Excavation and removal of highly contaminated soil
- Removing tanks or other containers that are leaking or pose a threat of release
- Applying chemicals to slow a release or mitigate its effects
- Onsite treatment or incineration
- Providing alternative water supplies
- Evacuating residents