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