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Everything You Always Wanted to Know about CERCLA: Superfund 101

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Everything You Always Wanted to Know about CERCLA: Superfund 101

Everything You Always Wanted to Know about CERCLA: Superfund 101

The Comprehensive Environmental Response, Compensation, and Liability Act -- otherwise known as CERCLA or Superfund – is the federal statute that provides a funding mechanism to clean up uncontrolled or abandoned hazardous waste and accident sites. In this course, Connie Sue Martin will lead you through the CERCLA liability framework, contribution and cost recovery, and the roles of key players such as EPA, states, and Indian tribes.

Presenters

Connie Sue Martin
Partner, Industry Group Leader
Schwabe, Williamson & Wyatt PC

Transcript

- Everything you always wanted to know about CERCLA, Superfund 101. This is Connie Sue Martin of the law firm, Schwabe Williamson and Wyatt in Seattle, Washington. The learning objectives for this CLE are first to understand what CERCLA is. Second, to understand CERCLA's liability framework. Third, to differentiate between the remedy side of CERCLA and the national resource damages side. Fourth, to understand the roles of EPA states and Indian tribes under CERCLA. Fifth to distinguish between contribution and cost recovery. And sixth, to gain an understanding of the private allocation process that is used at certain Superfund sites. So let's try an overview of CERCLA. CERCLA is a federal statute intended to address the serious environmental and health risks posed by industrial pollution. CERCLA seeks to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanups efforts are born by those responsible for the contamination. CERCLA was enacted on December 11th, 1980 at the close of the Jimmy Carter Administration in response to serious threats across the country posed by toxic waste sites such as the Love Canal landfill in Niagara Falls, New York. For 33 years, Hooker Chemical Company dumped 22,000 tons of hazardous waste into a dry canal in upstate New York, including byproducts from dyes, perfumes, rubber production and cleaning fluids. The waste was stored in 55 gallon drums. The city of Niagara, New York and the US Army also dumped garbage at the site. The company placed an impermeable, so waterproof, clay cap on top of the drums, but there was nothing underneath them to prevent the toxic materials at the bottom from leaching into nearby waterways and the Niagara River. Eventually Hooker Chemical companies sold the Love Canal property to the local school board for a dollar in 1953. The sale included a Hooker clause under which Hooker chemical would not be responsible if anyone became sick or died because of the waste buried in the canal. Over time, 82 different compounds, 11 of them suspected carcinogens percolated upward through the soil into the backyards and basements of a hundred homes and a public school that had been built on top of the buried waist. Over the years, residents had noticed a foul smell coming from the canal. Children's shoes melted to the pavement. Dogs burned their noses when they touched the ground and people started getting very, very sick. Because of the Hooker clause in the purchase and sale agreement, the chemical company refused to take responsibility. Local community activists made this a national issue, ultimately leading in part to the enactment of the Superfund statute and $20 million from the Superfund was used to permanently relocate Love Canal residents into safer neighborhoods. CERCLA is intended to clean up leaking, inactive or abandoned hazardous waste sites and provide emergency responses to spills. EPA may compel responsible parties to perform the cleanup or perform the cleanup itself and then recover its costs from those responsible parties. Let's talk about some key concepts of CERCLA. First, liability under CERCLA is strict. That means it is not based on fault. A party does not have to be negligent in order to have CERCLA liability. Liability is retroactive. Parties can be liable for acts that happened before CERCLA and enactment in 1980, so long as hazardous materials are remaining in the environment and causing a threat to human health of the environment. Liability attaches notwithstanding the fact that operations that led to the contamination may have been legal or even standard industry practice at the time. Liability is based on a party's status, so among the liable parties are the current owner or operator of a site, even if they had nothing to do with the operations that led to the release of hazardous substances in the environment. The owner or operator of the site at the time of a release of hazardous substances, generators, and parties that arranged for the disposal or transport of the hazardous substances and transporters of hazardous waste who selected the site where the hazardous substances were brought? CERCLA liability is joint and several. That means that when two or more PRP, potentially responsible persons, release hazardous substances regardless of the amount each of them released, each PRP is responsible for the entire liability, and EPA need only pursue one PRP for the entire cost of the remediation. PRPs have the burden of proving that the harm is divisible and that liability, the cleanup costs should be several only, rather than joint and several. This is apportionment, so liability should be apportioned among the PRP. A PRP that has paid more than its share of the cleanup costs has a right of contribution from other responsible parties. Liability reflects CERCLA's primary objective to hold those who are actively involved in hazardous substance disposal, financially accountable for the resulting harm. This is known as the Polluter Pays Principle. Statutory defenses to CERCLA liability are limited and only available in cases when the release was caused by an act of God, acts of war or acts or omissions of a third party with whom a PRP has no contractual relationship. In 1986, amendments to the Superfund statute provided an innocent landowner defense. This defense provides that landowners who obtain property and have no knowledge of contamination at the time of the purchase are not liable for Superfund cleanups if the landowner conducted all appropriate inquiries, AAI, prior to their purchase. Typically a phase one environmental site assessment, ESA. And the innocent landowner complies with several other requirements after they purchase the property. Largely measures to ensure the protectiveness of any remedy that is or has been implemented. So not interfering with a remedy, allowing access to the site to conduct remedial activities and ensuring that institutional controls continue to be implemented. States and tribes are involved in virtually every phase of CERCLA cleanups, even though it is a federal statute and EPA is the implementing agency. EPA is required to coordinate with states and tribes when the federal government leads cleanup operations within their jurisdiction. States and tribes may assume enforcement responsibility for part or all of a CERCLA site through agreements with EPA and states and tribes are Natural Resource Trustees. Another key concept is that of natural resource damages. In addition to the remedial side of CERCLA, CERCLA also provides for the assessment and restoration of injury to natural resources that is not otherwise addressed by remediation. PRP are liable for damages for harm to natural resources that are owned by, managed by and pertain to or in the case of Indian tribes held in trust for a Natural Resource Trustee. The United States, states and Indian tribes are Natural Resource Trustees. If you struggle to understand CERCLA's liability framework or its statutory language or even its very complicated and problematic legislative history, you are not alone. Courts have also taken a fairly dim view of CERCLA over the years. The ninth circuit in 1994 referred to it as a black hole that indiscriminately devours all who come near it. The District of Connecticut said that, waiting through CERCLA's morass of statutory provisions can often seem as daunting as cleaning up one of the sites the statute is designed to cover. The district of Massachusetts said in Ray Acushnet River, which is one of the seminal cases in CERCLA jurisprudence, "Like many a court before it, "this court cannot for bear remarking "on the difficulty of being left compass list "on the trackless wastes of CERCLA. "This court has previously noted "the statute's incomprehensible nature." The District of New Hampshire noted that CERCLA has acquired a well-deserved notoriety for vaguely drafted provisions and an indefinite, if not contradictory legislative history. And finally, the district of Maryland noted the legislative history of CERCLA gives more insight into the Alice in Wonderland like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature. We have already used a number of these key terms in our discussion of key concepts, so let's go ahead and define them. CERCLA is the Comprehensive Environmental Response Compensation and Liability Act of 1980, found at 42 USC section 9601 et Sec. In 1986, the Superfund statute was amended and the Superfund was reauthorized and that is known as SARA, the Superfund Amendments and Reauthorization Act of 1986. Superfund was a trust fund created by the CERCLA statute with approximately $1.6 billion initially funded to pay for the cleanup of any site where a polluter could not be identified, was bankrupt or refused to take action. The Superfund was financed by a direct tax on sales of petroleum and certain chemical feed stocks, but by 1995 when the authorization to collect these fees expired, the Superfund had accumulated nearly 4 billion. The authorization to collect these fees, these taxes was not reauthorized by Congress after 1995 and in 2003 that 4 billion ran out of money and the entire financial burden of paying for the cleanup of the worst orphan sites, meaning sites where there's not a viable potentially responsible party to pay fell to the taxpayers through annual appropriations by Congress to the Superfund program. The Infrastructure and Jobs Act enacted this year in 2022 reinstated the Superfund excise tax. Effective July 1st, 2022, the list of chemical substances to be taxed was expanded from the original authorization and the applicable tax was increased almost 100%. CERCLA is often referred to informally as the Superfund statute and sites being addressed under CERCLA are referred to as Superfund sites. Some states and Indian tribes have state or tribal Superfund statutes. A PRP is a Potentially Responsible Party. This is defined as any individual or company including owners, operators, transporters or generators potentially responsible for, or contributing to a spill or other contamination at a Superfund site. Whenever possible through administrative and legal actions, EPA requires PRP to clean up hazardous sites they have contaminated. An owner or operator is defined topologically as any person owning or operating a facility. It does not include a person that is a lender that holds indicia of ownership primarily to protect a security interest in the facility. This is the lender liability exclusion, where the lender has not participated in the management of the facility. A person under CERCLA is an individual firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, state, municipality, commission, political subdivision of a state or any interstate body. Person under CERCLA does not include Indian tribes. Because a tribe is not a person, it cannot be a PRP and thus it cannot be liable under CERCLA. This was decided in Pakootas et al versus Teck Cominco Metals, a decision outta the Western District of Washington in 2004. A facility includes any site or area where a hazardous substance has been deposited, stored, disposed of, or placed or otherwise come to be located. You should note that a facility doesn't necessarily mean it's all within a property boundary if you are following where a hazardous substance has come to be located, it may cross many property lines and end up far away from where it originally was deposited, stored, disposed of or placed. A release includes any means by which a hazardous substance is released into the surface or subsurface water, land or ambient air. Hazardous substance. This includes a comprehensive list of substances defined as hazardous or toxic under four other environmental statutes identified in CERCLA, as well as those that EPA has specifically identified under CERCLA. Petroleum, including crude oil or any fraction thereof is not a hazardous substance under CERCLA, unless it is specifically listed or designated, for example, because it's contaminated by something that is specifically listed or designated as hazardous under CERCLA. This petroleum exclusion was the result of pressure exerted on Congress during CERCLA's enactment by the oil industries very, very strong lobby at the time. Some state Superfund statutes, the Washington Model Toxics Control Act comes to mind, do specifically include petroleum as a hazardous substance. The NPL, the National Priorities List. This guides the EPA in determining which site's warrant further investigation. So when you talk about a site being a listed site, that means it's on the National Priorities List. EPA uses a ranking system called the Hazard Ranking System, the HRS to assess the potential of a site to pose a threat to human health or the environment. Any site that scores at least a 28.5 on the HRS is eligible for listing on the NPL, but it doesn't automatically get listed on the NPL. NRD, these are Natural Resource Damages, which we've talked a little bit about already. And the NCP, the National Contingency Plan, This is CERCLA's implementing regulation. COCs, these are Contaminants of Concern. The chemicals identified during in-depth site studies referred to as remedial investigation feasibility studies that need to be addressed by a cleanup action because these COCs pose a potential threat to human health or the environment. And RI/FS a Remedial Investigation or Feasibility Study. And RI is an investigation intended to gather the data necessary to determine the nature and extent of contamination so that the problems at the site, establish cleanup criteria for the site, identify preliminary alternative remedial actions and support the technical and cost analyses of the alternatives. And FS is a study of a hazardous waste site that is intended to evaluate the alternative remedial actions that were identified during the RI from a technical, environmental and cost effectiveness perspective. Recommend the cost effective remedial action to be selected for the site and prepare a conceptual design, a cost estimate for budgetary purposes and a preliminary construction schedule. The ROD is the record of decision. This is the EPA document that explains which cleanup alternatives will be used at NPL sites. Apportionment is the process of deciding, who should pay how much when the parties are not jointly and severally liable, when each party is liable for only part of the cleanup. This is several only liability as opposed to joint and several liability. And remember, the PRP bears the burden of establishing that a site's liabilities may be apportioned. In contrast allocation is an equitable doctrine intended to determine who among the jointly and several liable parties should pay how much. A consent decree under CERCLA is the judicial agreement between the federal government and the potentially responsible parties that fully or partially settles a claim under CERCLA? A consent decree may settle litigation entirely following, the initiation of a lawsuit and civil litigation or it may be presented concurrently with the complaint so it's achieved through negotiations before any lawsuit is filed. Consent decree may be for response work cost recovery or both. You can find an example of a consent decree in your supplemental materials. The consent decree for the Anaconda Smelter NPL site. Contribution. A PRP that has been required to pay response costs to someone else can assert a contribution claim against other PRP to compel them to bear an equitable share of those costs. Contribution actions under CERCLA Section 113F are subject to a three year statute of limitations, which begins on the date of judgment in any action under CERCLA for recovery of response costs or the entry of a judicially approved settlement with respect to such costs. So if you are a PRP who has negotiated a consent decree with EPA, you have three years from the date of entry of that consent decree to file a contribution action against a PRP at the site who has not settled out its liability to the EPA through a consent decree. In contrast is a cost recovery action. Any person may sue a PRP to recover any other necessary costs of response that that person has voluntarily incurred. Cost recovery actions under CERCLA section 107A are subject to a six year statute of limitations, which begins upon the initiation of the remedial action. Cost recovery is not available to a PRP that has been compelled to incur costs through a lawsuit or administrative proceeding. Typically, a tribal state or federal government is the entity seeking cost recovery and in order to recover those costs, they must be not inconsistent with the National Contingency Plan, the NCP, so the CERCLA implementing regulations, any other person, another PRP or a private party who has not been compelled to clean up but has nonetheless incurred necessary costs of response. They can also use Section 107A and the six year statute of limitations, but they must affirmatively demonstrate that their cleanup is consistent with the NCP, so a less stringent burden on governmental agencies seeking cost recovery, but nonetheless, any person is entitled to seek cost recovery. Institutional controls is another term that you will hear in CERCLA rubric. These are non-engineered mechanisms such as administrative or legal controls that help minimize the potential for human exposure to contamination and/or protect the integrity of a remedy by limiting land or resource use. Some examples include fishing restrictions, fences, deed restrictions about what you can and cannot use the property for or whether or not you can use groundwater for drinking water and the posting of warning signs outside of the contaminated site. These are all examples of institutional controls. A five year review. This is required by CERCLA or the Superfund program policy when the remedy provides that hazardous substances remain on site above levels which permit unrestricted use of the property and unlimited exposure to the property. For example, a remedy may have been selected by the EPA, which leaves in place soil that's contaminated with wood treating chemicals under an impermeable surface, a cap, and then on top of that something else like concrete or other pavement. So the contamination is capped to prevent exposure by humans or other ecological resources, but nonetheless the contamination is on site and you cannot use your property for anything that would cause an impact to the cap. So long as there is hazardous material on site which prohibit unrestricted use and unlimited exposure, EPA needs to review that site every five years, forever, and assess the protectiveness of the remedy. If upon a five year review conclusion that the remedy is no longer protective, EPA can require the PRP to perform additional remedial action at the site. An example of a five year review report can be found in your supplemental materials for the Better Bright Plating company Chrome and Zinc Shops Superfund sites. Key sections of the statute for quick reference, 42 USC 9601, which is CERCLA Section 101, contains the definitions. 42 USC 9604, which is CERCLA Section 104 contains EPAs response authorities. 42 USC 9606, which is CERCLA Section 106 authorizes abatement actions for imminent and substantial endangerment 42 USC 9607, which is CERCLA Section 107 contains the liability and cost recovery provisions. 42 USC 9613, which is CERCLA Section 113 is the civil proceedings contribution actions, jurisdiction and venue provisions and limitations. 42 USC 9620, which is CERCLA Section 120, covers federal facilities. 42 USC 9621, which is CERCLA Section 121 contains the cleanup standards. 42 USC 9622, which is CERCLA Section 122 provides for settlements. 42 USC 9626, which is CERCLA Section 126 is the provision addressing provisions unique to Indian tribes. This was added by the SARA Amendments in 1996. And finally 42 USC 9659, which is CERCLA Section 310 provides for citizen suits. The CERCLA remedial process starts with a site identification and then a preliminary investigation or site assessment. And following that preliminary investigation and site assessment, EPA generates a hazard ranking system score to determine priorities for proceeding. The next step is a remedial investigation and the results of the RI may lead to a removal action if there's an imminent threat to human health of the environment requiring immediate action or more short term action taken to address releases that require a prompt response. The next step is a feasibility study, then a proposed plan for the remedial action for public comment. EPA gathers the public comments and then issues a record of decision selecting its preferred alternative remedial action. The next step is remedial design, which may include engineering, additional investigation to establish more realistic costs of the remedy. The next step is the implementation of the remedial action. After the remedial action has been completed, there is long term operation and monitoring activities to ensure the success of the implementation of the remedy and ensure its long term protectiveness. And then if there are hazardous substances remaining on site as part of the remedy, there are five year reviews. The CERCLA of remedial process can take multiple decades to complete. It is not a quick process. The federal government may take two types of actions under CERCLA. There are removal actions which are short term taken to address releases or threatened releases that require a prompt response and remedial actions. These are long-term actions which permanently and significantly reduce the risk of the release of hazardous substances. CERCLA allows for citizen suits in two limited circumstances. It allows any person to commence a civil action against any person including the United States for a violation of any standard, regulation, condition, requirement or order including Federal Facility Agreements, which we'll talk about shortly. Or against the United States for failure to perform any non-discretionary duty. CERCLA contains a pre enforcement review bar, so you cannot challenge judicially, CERCLA's selection of a remedy before the remedy is implemented or if EPA, before EPA institutes an enforcement action. The courts have recognized that although judicial review is an important element in the enforcement of laws such as RCRA and the Clean Water Act and may have constitutional implications, Congress has determined that the need for swift execution of CERCLA cleanup plans outweighs this concern. Congress's thought was that they didn't want non-environmental expert judges second guessing EPAs enforcement and remedial decisions and the selection of remedies at sites that fall within EPAs expertise. Natural resource damages. So in addition to response and remediation activities under CERCLA, PRP are also responsible for loss or damage to natural resources. Actions for loss or damage to natural resources may be brought by federal, state and tribal Natural Resource Trustees. This is not within EPAs duties, under CERCLA. EPA is not a Natural Resource Trustee. Natural Resource Trustees at the federal level include the president acting through executive agencies. The Department of Interior includes the US Fish and Wildlife Service, the US Geological Survey, the National Park Service, the Bureau of Ocean and Energy Management, the Bureau of Reclamation, the Bureau of Land Management, and the Bureau of Indian Affairs. Within the Department of Commerce, there's the National Marine Fisheries Service and the National Oceanic and Atmospheric Administration. And then within the Department of Agriculture, there's the US Forest Service, and then the Departments of Energy and Defense are also Natural Resource Trustees. Energy and defense are also frequently potentially responsible parties, which makes for an interesting scenario. At the state level, the state trustee is the governor acting through agency or agencies to which the governor delegates his or her authority. And Indian tribes are trustees also. Their trustee is the tribal chairman, also acting through departments or divisions or agencies to which he has delegated his authority or her authority. Natural resource damage liability is different from CERCLA's, strict joint and several liability for remedial costs. Trustees have to establish a causal relationship between the PRP and the particular contaminant that has led to natural resource damage for which the trustees seek recovery. Natural Resource Trusteeship may be overlapping. For example, picture a salmon entering the Columbia River from the Pacific Ocean and moving up river. It is a resource under the trusteeship at various times of the US Fish and Wildlife Service, the Oregon Department of Fish and Wildlife, the Washington Department of Fish and Wildlife, and the Warm Springs Umatilla, Yakima, and Nez Perce tribes, depending upon where the fish happens to be in the Columbia River. As a consequence of this overlapping trustee ship, Natural Resource Trustees typically work cooperatively to pursue natural resource damage claims. And they are often governed by memorandum of agreement that talk about everybody's rights and responsibilities and roles. An example in your supplemental materials is the Natural Resource Trustee memorandum of agreement for the Portland Harbor Superfund site. Natural resource damages include the costs of restoring, replacing, or acquiring the equivalent of injured natural resources. And CERCLA requires that NRD recovery be used only for those purposes by state and federal Natural Resource Trustees. Natural resource damages also include lost or diminished use values for the resource including market and non-market values. Use values under the statute seeks to capture values for the public's use of the natural resources. Again, the trustees are acting as trustees for resources that benefit their residents and citizens and members. But the values of public resources, public natural resources won't be traded. They're not actually traded in the marketplace, but you can still assign a dollar value to them for what would you pay to use in a national park that had otherwise been injured by contamination. Natural resources can also have an intrinsic value just for existing. For example, picture Niagara Falls. What is the value to you of this international resource just existing? Natural resource damage claims also include the costs to assess the injury to the natural resources and interest. Natural resources are land, air, water, groundwater, drinking supplies, fish, wildlife habitats, and other resources belonging to, managed by, held in trust by or appertaining to any state, local, tribal or foreign government. EPA is required under CERCLA to notify Natural Resource Trustees of key events. EPA has to coordinate and consult with Natural Resource Trustees to determine the adequacy of its ecological investigation, evaluate actual or potential injury to trust resources, and select appropriate remedial action. Having Natural Resource Trustees involved in the CERCLA process early on permits the trustees to shape their own NRD assessment activities as well as EPAs CERCLA response actions, work plans and remedies selection. It also increases the opportunity for resource protection. For example, there may be remedial alternatives that are being considered by EPA for injury to property that includes a wetland. One remedy might be to just fill the wetland and cap it so you're essentially destroying the wetland, but you are capping contamination in place, or you could have another remedy that would excavate the contamination and restore the wetland. Natural Resource Trustees obviously would prefer wetland restoration because it's a remedy that would cause less resource damage and increased resource protection. Having Natural Resource Trustees involved in the CERCLA process early on also provides increased opportunities by trustees to participate in negotiations with PRP to obtain a global settlement and a combined remedy and RD consent decree. Remember, EPA is not a Natural Resource Trustee, so a settlement with EPA and the PRP does not and cannot address the natural resource damage claims unless there is participation by the Natural Resource Trustees. What are they settling, when you settle a natural resource damage claim? EPAs job is to determine what is clean. And I say clean with air quotes, because clean is protective of human health in the environment. Clean does not mean being restored to pre-release conditions. The difference between clean and pre-release conditions, that delta is a natural resource damage claim. So let's talk about different types of CERCLA sites. These are not all of them, but these are some that you will frequently see references to. Mega sites, sediment sites, federal facilities and deferral sites. A mega site is a Superfund site with actual or expected total cleanup costs of 50 million or greater. These are typically larger and more complex sites that involve sediment and groundwater contamination that is geographically dispersed over a large area. The wide geographic dispersal of contaminants means that compared to smaller, less complicated sites, mega sites have many more sources of contamination and many more PRP. If you have water, then you may have a sediment site. Water bodies including rivers, lakes, and harbors may contain contaminated material that has settled on the bottom, which is called sediment that poses risks to ecosystems and human health. Sediment sites may involve contamination that is distributed over large areas, often encompassing many miles of a waterway. For example, the Lower Duwamish waterway Superfund site in Seattle, Washington is five miles long. Sediment sites are frequently located within older urban areas, but they can also occur in remote areas. For example, the St. Lawrence waterway on the border between New York and Canada. That is not an urban area, but it was an industrialized area and it resulted in contamination that qualified it for listing as actually three separate Superfund sites. Superfund sediment sites can be complicated to clean up because of multiple sources of contamination, and you could have one or more of those multiple sources that are difficult to control. Contaminants can persist for years or decades either because it doesn't degrade in an aquatic environment or it degrades very slowly. Contaminated sediment can be buried by successive layers of sediments. For example, if you have an active riverine environment, you may have sediment washing down from upstream that is not contaminated or is contaminated at levels that are below remedial action levels. But if you disturb the sediments, the contaminated sediments that underlie the new layer can be resuspended in the water and can either move around in the aquatic environment or they can settle back on the top of the sediment surface resulting in recontamination. Exposure to contaminants and sediment can occur by several routes. And remember, one of EPAs criteria is to make sure that the remedy is protective of human health, so humans can be exposed to contaminated sediment by direct contact. So walking along the tide lands or walking along the edge of a river in bare feet. Through indirect contact, by consuming organisms that have accumulated contaminants from sediments. So resident fish, bottom dwelling like clams and oysters and other mollusks that filter water through their gills to feed they assemble and store contaminated sediments and contamination in their bodies. Their bodies are then eaten either by people or by larger critters that people then later eat and that causes indirect contact with the contamination in the sediments. Finally, fisher people or clam diggers can have skin exposures to sediment when their sediment nets or the equipment they use during fishing and clam digging activities. Cleaning up contamination in an aquatic environment is often more difficult from an engineering perspective than land-based sites because of the dynamic nature of water bodies. So resuspended sediment can be carried by the water and contaminate or recontaminate an area that's otherwise clean. Upland sources of contamination have to be controlled to prevent recontamination of remediated sediments. If you think about it, it makes absolutely no sense to dredge a waterway and put down clean sand on top of it if you still have uncontrolled sheet flow of contaminated materials into the water or discharges from an uncontrolled sewer system or storm water system that's re-contaminating what you have just cleaned. At sediment sites, EPA can enter into a memorandum of agreement with the appropriate state agency or agencies under which EPA controls the in water remedial action. And the state controls the upland contaminated sites and the upland source control under the appropriate state cleanup authority. An example in your supplemental materials is the lower Duwamish Waterway Superfund site memorandum of agreement between EPA and the Washington Department of Ecology. Federal Facility sites are sites with buildings, installations, structures, land, public works, equipment, aircraft, vessels, other vehicles and property owned, constructed or manufactured for leasing to the federal government. An easy shortcut is to just think about old air force spaces or old army depots or chemical weapons depots or nuclear reservations. These are federal facilities. In 1986, SARA added Section 120 to CERCLA to clarify that federal departments and agencies are subject to the requirements of CERCLA to the same extent as other entities, other PRP, including the liability and enforcement provisions of the law. However, while EPA has broad administrative enforcement authority, it does not have civil judicial enforcement authority to address environmental violations by a federal facility. This is based on the Department of Justices interpretation of the unitary executive theory, which says that one federal agency can't sue another federal agency in federal court, the president can't sue himself. So a PRP agency is responsible for performing and paying for the cleanup of contamination out of its own budget subject to appropriations by Congress. The PRP agency is barred from adopting any guidelines that are contrary to EPA rules or guidelines. So they can't come up with a remedy that's not protective of human health or the environment, and they have to commence the remedial investigation feasibility study process within six months of listing on the NPL. They can't wait and wait and wait and wait and wait, and they also have to provide for state and local participation in the planning and selection of the remedy. Federal facilities that are listed on the NPL are required to enter into an interagency agreement called a Federal Facilities Agreement with the EPA. And Federal Facilities Agreements contain a schedule for completing the remedial actions and the arrangement for any long term operation and maintenance activities that may be necessary to ensure the performance of those actions over time. Remember that a violation of a Federal Facilities Agreement may be subject to a citizen's suit to enforce so long as the 11th Amendment is satisfied. An example of a Federal Facility Agreement in your supplemental materials is the one for the Savannah River site. Deferral sites, a site that would otherwise qualify for listing on the NPL or has been proposed for listing may be deferred and not listed, and instead, a state or Indian tribe may control of the enforcement for the remediation under the terms of a deferral agreement with the EPA. Remember when we were talking about the hazard ranking score of 28.5, qualifying a site for listing but not automatically resulting in a listing? This is a circumstance when a site that has scored high enough to qualify for listing does not get listed on the NPL under a deferral agreement with the EPA. The state or tribe uses its own cleanup authority to compel and oversee PRP response actions or it can implement its own response action using its own resources and then seek cost recovery. Deferral agreements typically contain requirements imposed by EPA in order to satisfy its criteria for deferral. There was guidance promulgated in 1995. You can find this in your supplemental materials, the guidance on deferral of NPL listing determinations. Some examples of deferral agreements, which also may be found in your supplemental materials are a deferral agreement for the Rainier Mill site. This one is interesting because it's a deferral agreement involving EPA, the Washington Department of Ecology and the Lower Elwha Klallam tribe and the national priorities list deferral agreement for the Astoria Marine Construction Company site, which is in agreement between EPA and the Oregon Department of Environmental Quality. Let's talk about the role of Indian tribes under CERCLA. Under the 1986 SARA legislation, the role of Indian tribes was expanded in both cleanup and natural resource damage actions. Generally, the governing body of an Indian tribe is afforded substantially the same treatment as states with respect to many but not all provisions of CERCLA. SARA specifically recognized tribes to have state-like status with respect to being notified of releases of hazardous substances being consulted on remedial actions, having access to information gathered by EPA with respect to health authorities and with roles and responsibilities under the NCP and submittal of priorities for remedial action to be taken by EPA. Tribes like states may have their own Superfund statute or code with cleanup standards that may be more protective than standards applicable under CERCLA or for example, as I noted earlier, which include petroleum as a hazardous substance when it's not included as a hazardous substance under CERCLA. Allocation at some complex Superfund sites, PRP engage in a private allocation process to help manage their potential liabilities and to coordinate the investigation and remediation activities with the EPA. So rather than waiting for EPA to sue them and determine their liability, they initiate a process to figure out an allocation that is appropriate from their perspective and submit that to the EPA. It's a confidential non-judicial process, it involves an expert allocator hired by all the participating PRP who split the costs of the all allocator and the allocation. The allocator uses technical reports and information gathered by the EPA through its 104E, information request process expert reports, and then advocacy and briefing, arguments and briefing by the PRP to allocate all of the liability at a site among the PRP. Under allocation agreements, typically the participating PRP can accept the allocator's allocation or not, but if they do accept it, the allocation can be included in a settlement agreement proposed to EPA, which if accepted, can be memorialized in a consent decree. The consent decree remember provides the PRP who have participated with protection against cost recovery by state and federal and tribal governments that have incurred costs and contribution actions by other PRP. PRP who have not participated in the allocation process and therefore are not included in a consent decree adopting the allocator's allocation are thereafter pursued by the participating PRP for contribution. The District of Connecticut said it best in distinguishing between apportionment and allocation and the importance of equitable considerations. Equitable considerations play no role in apportionment. So convincing a court or EPA that liability should be several only not joint several, but equitable considerations are central to an allocation. The court said to a portion is to request separate checks with each party paying only for his own meal. To allocate is to take an unitemized bill and ask everyone to pay what is fair. There have been numerous challenges to CERCLA as being unconstitutional, all of them have been rejected. In 1983 in State ex Rel. Brown versus Georgeoff the court said, CERCLA and its legislative history demonstrate clear and unequivocal congressional intent to make the liability of provisions of CERCLA apply retroactively. And that intent overrides the presumption against the retroactivity of statutes. The eighth circuit held in United States versus Northeastern Pharmaceutical and Chemical Company Inc, that the retroactive application of CERCLA does not violate due process. In United States versus Olin Corporation, the 11th circuit held that CERCLA does not violate the commerce clause of the US Constitution. Courts have held that CERCLA liability is joint and several, even though that phrase was eliminated from the statute during its enactment. In the same court that initially confirmed that the court also held that when a PRP seeks to limit its liability on the ground, that the entire harm is capable of apportionment, the burden of proof as to apportionment is upon each PRP. CERCLA operator liability may attach to a parent corporation for its subsidiaries actions both directly and indirectly not withstanding corporate law provisions for limited liability of corporations, this is the United States versus Bestfoods, Supreme Court decision. Indirectly, a derivative liability can arise when the corporate veil may be pierced. And directly, corporate liability may arise when a corporate parent actively participates in and exercises control over the operations of its subsidiaries facility. CERCLA Section 113 gives US district courts exclusive jurisdiction over CERCLA controversies and it precludes challenges to removal or remedial actions selected by EPA under section 104 or orders issued under section 106 except in limited circumstances. This is the Preen Enforcement Judicial Review bar. However, state courts may hear state common law claims that seek to compel remediation beyond what EPA has required. That was a decision of the US Supreme Court in its 2020 term in Atlantic Richfield Company versus Christian, a case arising in Montana. However, the Atlantic Richfield company case also held that additional remediation can be compelled through a state court action only against PRP that EPA has approved the additional remedial action. So if you have a non PRP seeking to compel or seeking to perform additional remedial action, that's fine. But if the entity seeking to compel further action is a PRP, then it can only happen if EPA approves it. So to wrap up our learning objectives, we had six of them. Let's see what we have done. Our first was to understand what CERCLA is and we now understand that CERCLA is a comprehensive federal statute that addresses leaking, inactive or abandoned hazardous waste sites and provides emergency responses to spills that are paid for by the parties responsible for the hazardous waste. We understand that CERCLA liability is strict, retroactive, joint and several and based on status and that there are very limited defenses to liability, which include an act of God, an act of war, acts or omissions of a third party with which a party has no contractual relationship and innocent landowner. We can differentiate between the remedy side of CERCLA and the natural resource damages side. EPA determines what is clean, protective of human health in the environment, but clean does not mean restored to pre-release conditions. The difference between clean and pre-release conditions is the measure of a natural resource damage claim, and natural resource damage claim is asserted by state, tribal and federal Natural Resource Trustees, but not EPA. We understand that EPA implements CERCLA and drives the remedial process, but that states and tribes can participate in remedial actions and recover their costs and also natural resource damage claims as Natural Resource Trustees. States and tribes can also assume primary responsibility for part of a site. For example, the uplands at a sediment site through a MOA with EPA or all of a site through a deferral agreement. Contribution under CERCLA Section 113 is the exclusive means by which a PRP that has incurred response costs under an administrative order or consent decree can recover from another PRP and the statute of limitations is three years. In contrast, a cost recovery action under CERCLA Section 107 is available to anyone that voluntarily incurs response costs. This can be a private party or a federal, state or tribal government. But CERCLA 107 contribution, or excuse me, cost recovery actions are not available to PRP who have been compelled to incur costs. The statute of limitations for cost recovery is six years. And finally, we understand that allocation is a confidential non-judicial process involving PRP and an allocator they have hired to divide all of the liability at a site. This is typically done in parallel with the EPA CERCLA process. And the district court said it best when they said, to a portion is to request separate checks with each party paying only for his own meal, to allocate is to take an unitemized bill and ask everyone to pay what is fair. This has been everything you always wanted to know about CERCLA Superfund 101. And I am Connie Sue Martin of the law firm, Schwabe Williamson and Wyatt in Seattle, Washington.
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1h 6m 46s

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