CE 529 Hazardous Waste Management
Lecture 3 - Environmental Legislation – CERCLA
S.K. Ong
Instructional Objectives
• Brief Introduction of Problem
• CERCLA/SARA description/objectives
• Overview of CERCLA Response Process
• Discuss aspects of liability
General Description
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RCRA, a system of cradle-to-grave regulation of hazardous waste enacted in 1976, required EPA to regulate the
management of hazardous wastes.
However, it was soon realized that EPA lacked the authority to respond quickly to a release or threatened release
of hazardous substances and EPA lacked the authority to force responsible parties to remediate the
environmental problems caused by releases of hazardous substances.
There were two landmark episodes in the US that dramatized the dangers of hazardous substances which
resulted in the passage of new legislation to deal with uncontrolled releases of hazardous substances:
• Love Canal, New York
• Times Beach, Missouri
On Dec 11, 1980, Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) (P.L. 96-510, 42 USCA 9601-9657). CERCLA is commonly known as "Superfund". This law gives
the Federal Government authority to respond to:
(a) emergencies involving immediate and uncontrolled releases of hazardous substances whether on land or in
navigable waters
(b) identify uncontrolled and abandoned hazardous substances sites and ensure clean-up of the worst hazardous
waste sites and to arrange for restoration of damaged natural resources
(c) compel potentially responsible parties (PRPs) of the problem to clean-up the hazardous waste site at their
own expense or for Federal government to recover the costs of Federal actions.
CERCLA created a tax on specified feedstock chemicals of the chemical and petroleum industries collecting 1.6
billion dollars over 5 years. The monies collected are placed in the so-called "Hazardous Substances Release Trust
Fund" and are used for the above actions. CERCLA regulations are found in 40 CFR 300
(Reminder: RCRA is directed towards current hazardous waste management with a focus on preventing future
contamination. CERCLA addresses emergencies involving uncontrolled releases and contamination form past
actions such as abandoned hazardous waste sites and sites that were closed before Nov. 19, 1980.)
Superfund taxing authority ceased on Oct. 1, 1985. On Oct. 17, 1985, CERCLA was amended by the Superfund
Amendments and Reauthorization Act (SARA). SARA significantly increased the size and scope of CERCLA
program. Some of the features are:
• increased Superfund by an additional $8.5 billion
• implementation of permanent remedies that reduces toxicity, volume and mobility of HW for contamination
cleanup involving more stringent cleanup standards - therefore resulting in an increase in the potential cost of
clean-up.
• provisions for compliance with Applicable or Relevant and Appropriate Requirements (ARARs) from Federal,
State or local laws at Superfund sites
• requires alternative treatment and recycling technologies be considered for cleanup of wastes rather than land
disposal
• encouragement of State and public involvement at Superfund sites
• subjecting Federal facilities to compliance with CERCLA and SARA provisions
• Introduced new and independent regulatory programs such as the Emergency Planning and Community-rightto-know Act (SARA Title III)
• strengthened legal rights of defense involving liability for PRPs and expanded scope of Superfund liability
• Under CERCLA, few regulations have been promulgated. Instead, Congress simply stated the requirements,
with no actions necessarily required by EPA. In addition, EPA has disseminated information pertaining to
Superfund in the form of policies and memos. These policies and memos have been incorporated into OSWER
(Office of Solid Waste and Emergency Response) Directive System. Because of the lack of legal clarification
through the rule making procedure, many legal interpretations were supplied through the courts.
The current funding mechanism for Superfund has expired as of Dec. 31, 1995. Congress is working towards
reauthorization but disagreement has stalled any reauthorization.
Hazardous substance in CERCLA means:
(i) any substance designated as hazardous under Section 102 of CERCLA
(ii) any substance designated as a hazardous pollutant under Section 311 and any toxic pollutants listed under
Section 307 of the Clean Water Act.
(iii) any hazardous waste listed or having hazardous characteristics as defined in RCRA
(iv) any hazardous chemical substance against which EPA has taken action under Section 7 of TSCA
(v) hazardous air pollutants as listed in Section 112 of the Clean Air Act
(vi) The term "hazardous substance" does not include petroleum, including crude oil or any fraction thereof,
natural gas, natural liquids, liquefied natural gas, or synthetic gas usable for fuel (CERCLA Section 101).
Reporting Requirements
• Four separate statues address the reporting of releases that present a potential threat to human health or the
environment:
• CERCLA
• Title III of SARA - designed to address acutely hazardous release
• Hazardous Materials Transportation Act (HMTA) - addresses releases during transportation incidents
• Clean Water Act (CWA) - dealing with emergency notification of releases to water
Regulatory requirements under these statues overlap, but Superfund is considered the focal point for emergency
release notification regulations. Therefore, the requirements under each of these statues have been slowly
modeled and tied into Superfund - alleviating and overlapping requirements.
Reportable Quantities (RQs)
• currently there are 720 Superfund hazardous substances and their RQs are listed in 40 CFR Part 302.
• Section 103 of Superfund requires any person in charge of a facility that has a release of a reportable quantity
to report that release immediately to the National Response Center operated by the National Coast Guard (tel.
no. 800-424-8802). Owner must also notify the potentially affected parties by publication in the local
newspaper. Failure to report a release immediately or submits false information, upon conviction, subject to
fines of not more than $250,000 for individuals ($500,000 for organization) and/or imprisonment for not more
than three years
• RQs are also listed in SARA Title III, HMTA, and CWA.
• Note that Superfund specifically exclude petroleum from the reporting requirements, CWA
specifically requires the reporting of certain oil releases. Oil means petroleum, fuel oil etc.(See 40 CFR 110)
Superfund Liability
Superfund may impose liability on PRPs for all costs of removal or remedial action; any other necessary costs of
response; damages for injury to, destruction of, or loss of natural resources; and the costs of any health assessments
or health effects studies. PRPs are either:
• any current owner(s) and or operator(s) of a facility or vessel,
• any person(s) who at the time of disposal, owned or operated a facility at which hazardous substances were
disposed of,
• any person(s) who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous wastes
(owned or possessed by such person) at a facility
• any generator who disposed of hazardous substances at the site
• any person(s) who accepts or accepted any HW for transportation and also selected the disposal facility.
Liability Defense
A PRP can claim no liability if the act is:
• an act of God
• an act of war
• as provided by the Innocent land owner provisions - i.e., in order for a defendant not to be held liable for HW
contamination that occurred prior to the defendant purchasing the contaminated property under a contractual
relationship - the defendant or purchaser must establish that:
At the time of the purchase, the defendant did not know and had no reasons to know of any hazardous
substances contamination.
To establish the defendant had no reason to know - the defendant must have undertaken, at the time of
acquisition, all appropriate inquiries into the previous ownership and uses of the property consistent
with good commercial or customary practice in an effort to minimize liability and that the previous
owner did not disclose to the current owner that a release had actually occurred.
(Current business practice for a defendant is to conduct an Environmental Site Assessment prior to
purchase)
Superfund Liability Standards
Superfund liability is:
• retroactive - i.e., can be imposed as far back in time as contamination occurs
• strict - means that the Federal Government need not prove any intent or negligence on the part of the PRP (eg.,
as a generator the Federal Government need not prove that you were negligent or what your intentions were at
the time of disposal)
• Joint and Several - refers to the scope of liability in that each and every PRP can be held liable for the entire
cost of cleanup. For example, where several parties are responsible for the release or the threat of release of
hazardous substances such as a landfill used by several manufacturers -- any one party may be held liable for
the entire cost of clean-up, regardless of the party's level of contribution. Purpose is to prevent use of Superfund
resources on extensive litigation to obtain compensation from all involved parties.
CERCLA Response and Remedial Action Process
Superfund requires that all actions taken in response to releases of hazardous substances shall, to the extent possible,
be in accordance with the provisions of the National Oil and Hazardous Substances Pollution Contingency Plan or in
short National Contingency Plan (NCP) (See 40 CFR 300). NCP sets forth procedures which must be followed by
EPA and private parties in selecting and conducting CERCLA response actions.
NCP has the following basic components:
• Methods for discovering sites at which hazardous substances have been disposed
• Methods for evaluating and remedying releases that pose substantial danger to public health and the
environment
• Methods and criteria for determining the appropriate extent of cleanup
• Means assuring that remedial action measures are cost-effective
Remedial Response Action Process (see figure)
Remedial Investigation and Feasibility Study (RI/FS)
The RI/FS process is mandated under CERCLA for the development of remedial actions for uncontrollable
hazardous waste sites. Purpose of RI/FS
• a methodology established by the Superfund program for
¶ collecting data to characterize site conditions
¶ determine the nature of the waste
¶ assess risks posed by the site to human health and environment
¶ conducting treatability testing to evaluate potential remedial options and the cost of remediation information from the feasibility studies will assist in design of selected technologies
¶ development, screening and detailed evaluation of alternative remedial actions
REMOVAL ACTION
• short-term correction of immediate or
imminent public health threat
• may occur anytime during response
process
SITE DISCOVERY
Disclosed by:
• citizens' complaints
• routine reports
• regular inspection
• reports of emergencies
Imminent Threat
SITE
INVENTORY
Nonemergency
Not serious
NO FURTHER FEDERAL
ACTION REQUIRED
Refers site for cleanup by
• state or local government
• businesses
• private citizens
Below cut-off
scores
REMEDIAL
INVESTIGATION
FEASIBILITY
STUDY
REMEDY SELECTION/
RECORD OF DECISION
(ROD)
PRELIMINARY ASSESSMENT
• review of documents
• identification of site contaminants
Appears serious
SITE INSPECTION
On site investigations to identify
• exposure routes
• affected populations
• affected areas
HAZARDS RANKING SYSTEM
• scores threats of sites
• ranks sites by severity of threats
Above cut-off
scores
NATIONAL PRIORITY LIST (NPL)
• sites eligible for Federal Cleanup
funds
REMEDIAL DESIGN
REMEDIAL ACTION
PROJECT CLOSEOUT
the methodology is viewed as a dynamic, flexible process that can and should be tailored to specific
circumstances of individual sites. Note that there are many inherent uncertainties associated with each site such
as site hydrogeology, extent of contamination, performance of treatment technology and engineering controls
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the objective of the RI/FS process is to gather sufficient information to support an informed risk management
decision regarding which remedy appears to be most appropriate for a given site within a designated schedule
RI/FS is not meant to resolve all uncertainties before the cleanup process
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current practices in designing remedies at Superfund sites often divide sites into operable units that address
discrete aspects of the site or different geographic portions of the site.
- RI/FSs may be conducted for the entire site and operable units broken out during or after the FS, or operable
units may be treated individually from the start, with focused RI/FSs conducted for each operable unit
the phased activities within the RI/FS process are illustrated below.
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Scoping of the RI/FS
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evaluate existing data
develop conceptual site model
identify initial project/operable unit, likely response scenarios and remedial action objectives
initiate potential federal/state ARARs identification
identify initial data quality objectives (DQOs)
prepare project plans
Site Characterization
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conduct field investigation
define nature and extent of contamination (waste types, concentrations, distributions)
identify Federal/state contamination and location-specific ARARS
develop baseline risk assessment
Development of Alternatives
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identify potential treatment technologies containment/disposal requirements for residuals or
screen technologies
identify action-specific ARARs
assemble technologies into alternatives
screen alternatives as necessary
Treatability Investigations
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perform bench or pilot scale treatability tests as necessary
Detailed Analysis of Alternatives
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further define alternatives as necessary
analyze alternatives against evaluation criteria
compare alternatives against each other
untreated waste