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Superfund Handbook 1987
$9.00 A Guide to Managing Response to Toxic Releases Under the Superfund Amendments and Reauthorization Act SUPERFUND Hanabook sR Second Edition, April 1987 Alaska Power Authority LIBRARY COPY ERT. SIDLEY & AUSTIN A RESOURCE ENGINEERING COMPANY LAW OFFICES LEGAL NOTICE This Handbook is intended to be an information document that generally outlines the broad elements of the legal, regulatory, and technical framework of CERCLA/SARA and the Superfund program in effect in January 1987. As such, it is not within the scope of this Handbook to analyze specific legal, policy, or technical issues that may arise in the Superfund program. Rather, it is the purpose of the authors to identify significant issues that may be faced in the Superfund area. Specific questions about particular matters should be addressed in the context of the facts that underlie them and the policies and law in effect at the time. In furnishing this Handbook, ERT and Sidley & Austin do not make any warranty or representation, either express or implied, with respect to the accuracy, completeness, or utility of the information contained in this document; nor do ERT or Sidley & Austin assume any liability of any kind whatsoever resulting from the use of or reliance upon any information, procedure, conclusion, or opinion contained in this Handbook. COPYRIGHT © 1987 ERT, Inc. Sidley & Austin 696 Virginia Road One First National Plaza Concord, MA 01742 Chicago, IL 60603 All rights reserved. No part of this work may be reproduced in any form or by any means without permission in writing from ERT, Inc. and Sidley & Austin. All inquiries should be addressed to ERT, Inc., A Resource Engineering Company, 696 Virginia Road, Concord, Massachusetts 01742 (617) 369-8910 and Sidley & Austin, One First National Plaza, Chicago, Illinois 60603 (312) 853-7000. PREFACE Unlike most other environmental protection programs, Superfund basi- cally affects your past actions rather than your ongoing activities. This fact, coupled with stringent liability provisions, exaggerated perceptions of risk, and burdensome corrective action requirements makes Superfund the most troublesome and potentially emotional regulatory program facing industry today. In 1986, Congress set out to improve the Superfund cleanup program and passed into law on October 17 the Superfund Amendments and Reauthorization Act (SARA). This Handbook was written to help you gen- erally understand your responsibilities and responses under SARA and CERCLA. More than any other environmental program, Superfund is a process that affects diverse groups, industries, and individuals. To effectively manage your response to CERCLA/SARA you must understand the political, finan- cial, legal, and technical issues that drive the process of identifying and cleaning up sites. The outcome of your Superfund ‘‘problem’’ will hinge upon your legal knowledge and ability to deal with complex enforcement and settlement policies under SARA and your grasp of the technical require- ments and the array of alternatives open to you. Your decisions will ultimately depend on your specific site, the agencies you are dealing with, and your own business priorities. Expert legal and technical assistance will usually be required to determine the best course of action for your site. To assist you in gaining a basic understanding of these critical legal and technical aspects of the Superfund program, Sidley & Austin and ERT jointly prepared this Handbook. In it, Sidley & Austin, one of the nation’s largest law firms, brings to the Handbook their experience with litigation and negotiations for several hundred hazardous waste sites. ERT, a leading environmental consulting and engineering firm, is sharing insights and ex- pertise gained through the successful completion of more than 1000 hazard- ous waste projects for industry. Together, the firms offer a wealth of knowl- edge and expertise on the full range of Superfund issues. The second edition of the Superfund Handbook has been completely re- written and expanded to detail the ‘‘new’’ Superfund process as it affects industry and to focus on SARA requirements. The 1985 edition of this Handbook, published as a variety of reauthorization bills were being consid- ered, devoted more space to the National Contingency Plan and to EPA’s evolving policies. This second edition has a wider scope and focuses on the new layer of structure and procedure SARA imposes. Part I, ‘‘What is CERCLA/SARA?,”’ describes the regulatory framework and protocols of the entire Superfund program. Part II, ‘‘Managing Your Response to Superfund,” interprets the program and provides practical information on responding to Superfund. Part III, ‘‘Emergency Planning and Community Right-to-Know,”’’ details the key requirements of Title III of SARA and what they mean to industry. Although the impact and implementation of various SARA provisions are still being debated as we go to press, certain developments are practically guaranteed. The Superfund program will continue with a significantly ex- panded budget, more aggressive enforcement actions, and greater public and state involvement. We sincerely hope this Handbook will help to answer your general ques- tions about Superfund. SOA DA Lb Zk. Thomas McMahon Robert och, Jr. Partner Chief Executive Officer Sidley & Austin ERT, Inc. ii ACKNOWLEDGEMENTS The principal authors of this Handbook are Sam Nott and Caren Arnstein of ERT, and Stephen Ramsey and Maureen Crough of Sidley & Austin. Sam Nott, Manager of ERT’s Dallas Operations, directs RI/FS and other Superfund projects and is especially qualified in regulatory interpretation and agency liaison as a former EPA branch chief responsible for Superfund and industry PRP negotiations. Stephen Ramsey, Partner with Sidley & Austin, was formerly Chief of the Environmental Enforcement Section of the United States Department of Justice, which supervises all federal civil and criminal enforcement action in the environmental area. Maureen Crough, an Associate with Sidley & Austin, specializes in environmental law. Caren Arnstein, ERT’s Manager of Marketing Communications, has 9 years of experience writing on environmental issues and is also a principal author of ERT’s RCRA Handbook. We wish to acknowledge the contribution of all our staff from offices across the country who worked on this project. Key contributors at Sidley & Austin include Robert Olian, James Cahan, and Thomas McMahon. At ERT, contributors include Peter Shanahan, Sally Fitch, Coby Scher, Kathleen Reppucci, Robert Weber, Chris Keyworth, Roberta Fine, William Duvel, Gary Caylor, and Robert Sanz. iii TABLE OF CONTENTS PART I WHAT IS CERCLA/SARA? Sections 1, Framework — The ‘‘New’’ Superfund Program ............... 11 OVELVIOW oe. eeeeeceeeeeceeeeeeeeeeeaeeeeeeeeeceeeeeeesseeeeeesaeeeens 11 Reporting and Recordkeeping Requirements ................. 14 Petroleum Exclusion .............::sseeeeeeeeeee 19 Government Inspections 20 Government Response Authorities 21 Superfund Liability ...................00.. 27 Natural Resource Damage Assessments . w 31 Employee Protection .............sssseeeseeeeeeeeececeeeeeeeeaeees 33 2. Site Characterization and Remedy Selection 34 National Contingency Plan ...... 34 Preliminary Assessment/Site Investigation ww. 35 Hazard Ranking System .............ccccseeceseceeeceeeeeeeecseeees 36 National Priorities List 22.20.00... .ccceececeeeeceteeeceeueeeeeeaeeeee 36 Remedial Investigation/Feasibility Study «. 38 Remediation ...........ccccccseecseeeeseeeneeeeeceeeeeeeeeeeeeeeeeeaeees 39 Post-Remedy Requirements ..............ccccsecceeeeeeeceeeeeewees 41 Removals Under the NCP. ..........:cccceeeceeeeeeeeeeeeeeeeeaeeees 41 PART IL MANAGING YOUR RESPONSE TO SUPERFUND Sections 1. EPA’s Enforcement and Settlement Policy ................02..0088 44 Enforcement Provisions ............cceccceeeceeeeeeseeeeeceeeeeeeees 44 Administrative Record .......ccceceeeeeeeceeeeeeceeeeeeeeeueeeeeees 47 Citizen Suits 49 Settlement Provisions ... 50 NBARs and Mixed Funding Agreements .. 51 De Minimis and Cost Recovery Settlements . a. 52 Consent Decrees ........ccceecseceseccneccueeeneeeeeeeeeeeeeeeeeeeeees 53 56 State’s Role oo... 56 Natural Resource Damages . 57 2. Key Management Questions 58 Policy ISSUCS .......cccecceeceec eee eee ese eeeeeeeneeneee eee eeeeseeeeeeees 58 Non-NPL Sites 60 NPL Sites .......... 62 Multiple-Party Situations . 63 Insurance ...........e0eeee 64 Government Inspections ..........ccceseceeeeeeeeeeeeeeeeeeeeeeeeees 65 Managing the RI/FS ...............seceeeseceeceeeeeeeeeeeeseeeenees 66 Cleanup Standards . 71 Remedy Selection ............. 74 Technical and Treatment Issues 74 3. CERCLA/RCRA Interface ..........ccecceceec eee eeceeceeeeeseeneenee 80 Background ............. . 80 Evolution ..... . 81 Corrective Action) oto te tee etaleteseressertescon se 82 RCRA Land Ban ......cecccee cee cecs eee eee eee eeeeeeeeeeeeeneeneenees 83 Remedy Selection ... 83 Alternate Concentration Limits . 84 Underground Storage Tanks .. 85 OSHA’S Role ject ise ete ntandercobdetcavteodorsercecasetansesdonaesae 87 4. Superfund’s Impact on Business Transactions ..............0006+ 89 Real Estate and Business Transactions .............:seeeeeeeeeee 89 Fender's aD ity) i eee eee dd tdelehaeeateet tetas 90 Impact of State Laws . 91 Superlien and Lien Provisions . 91 Bankruptcy ..........s.ceeeeeeeeee eens - 92 Environmental Site Assessments 93 PART III EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW Key Questions About Title II] ............ccceeceeeeeeeeeeeeeeeeeeeeneee 95 Overview .........ceeceeeeee 95 Emergency Planning Notification 97 Emergency Release Notification 98 Community Right-to-Know Reporting ...........cscceeeeeseeeeeeee 100 Trade Secrets vs. Health and Public Information . 106 Citizen and Government Suits ...........ccsseeeeeeeeeeeeeeeeeeneee . 107 vi PART IV Sections [yj About sidleyacrAustin totter ices riveuu centres etemiuan 109 2) ADOUE BR ere ceccee eesetececet coset ee ceeteee tee 110 TABLES AND BOXES Page Exclusions from Federal Spill Reporting Requirements ...................06 15 Exclusions from Facility Notification Requirements ................eeeeeeeeee 17, Schedules SARA Imposes on EPA .........seccseeeeeeeeeees 23 Employee Health and Safety Regulatory Requirements . 33 Final-and Proposed NPE sites -...°..7.... 37 Developing the Record for Remedial Action .............:sseeeeeeeeeeeeeeneees 48 Elements of Consent Decrees 54 Public Interest Considerations for a Covenant .. 55 Pros and Cons of Implementing Cleanup Yourself .. 62 Information Not Entitled to Trade Secret Protection 66 States’ Role in Selecting Remedial Actions 75 Comparison of RCRA and CERCLA Corrective Action Provisions ...... 88 Immediate Notice Requirements tet tel 99) ‘Hier TTformation ee eee taut a a LO2 Information for a Toxic Chemical Release Form Timeline for Facility Actions vii INTRODUCTION This Handbook is a brief guide and general overview of the CERCLA/ SARA (‘‘Superfund’’) program and the separate but related Emergency Planning and Community Right-to-Know Act. The Handbook focuses on federal Superfund legislation and its potential impacts on those potentially responsible for sites where releases of hazardous substances have occurred, or may occur. In addition to the federal requirements covered in this volume, many states have (or are in the process of implementing) Superfund programs that impose additional liabilities on Potentially Responsible Parties (PRPs). These state Superfund laws may be even more stringent than the federal law. For example, some states have lists (separate from the federal National Pri- orities List (NPL)) of sites scheduled for state action. In short, even if you are not subject to federal Superfund enforcement, you may be subject to State action under state Superfund initiatives. The information in this Handbook represents the vast experience of ERT and Sidley & Austin in CERCLA and SARA applications. Based on our col- lective expertise with the Superfund program, we have tried to anticipate key questions of concern to PRPs and provide practical and clear answers. Therefore, we have used the question and answer format throughout the Superfund Handbook to present information in a meaningful, yet easy-to- read, fashion. So that you need read only the portions that apply to your own situation and level of CERCLA expertise, the Handbook moves from basic to more complex information. Part I begins with a broad summary of CERCLA/ SARA (Section 1), followed by an explanation of the process EPA uses to identify NPL sites and select a remedy (Section 2). Part II is the more inter- pretive portion of the Handbook. It starts with a review of EPA’s evolving enforcement and settlement policy and underlying legal issues of interest to PRPs (Section 1). Part II then deals with some of the complex technical, financial, policy, and political issues PRPs must address (Sections 2, 3, and 4). Following is a quick profile of the specific sections: © Glossary of Key Terms defines selected acronyms and terminology related to Superfund which you should scan as background. ¢ Part I — What is CERCLA/SARA? - Section 1, Framework, is a brief primer for readers relatively unfa- miliar with CERCLA and the new SARA program. - Section 2, Site Characterization and Remedy Selection, quickly pro- files the National Contingency Plan (NCP), the Hazard Ranking System (HRS), the NPL, and remedy selection procedures. ¢ Part II — Managing Your Response to Superfund Section 1, EPA’s Enforcement and Settlement Policy, addresses key legal issues to consider in responding to Superfund actions. Section 2, Key Management Issues, focuses on the complex technical issues PRPs must factor into their Superfund response strategies. Section 3, CERCLA/RCRA Interface, summarizes the similarities and differences between the two hazardous waste programs. Section 4, Superfund’s Impact on Business Transactions, provides an overview of the major impacts of the program on a variety of busi- ness transactions. ¢ Part III — Emergency Planning and Community Right-to-Know Key Questions About Title III, describes new recordkeeping and reporting requirements industry faces. To answer questions on CERCLA and RCRA, EPA has set up a hotline that you can call toll-free at 800-424-9346. ACL ARAR ATSDR CAA CERCLA CFR CWA FIFRA HRS HSWA MCL MCLG NBAR NCP NPL NRC OSC OSH Act OSHA PRP RCRA RI/FS ROD RPM RQ SARA SCAP SWDA TSCA Title 11 UST GLOSSARY OF KEY TERMS Abbreviations/Acronyms Alternate Concentration Limit Applicable or Relevant and Appropriate Requirement (Cleanup Standard) Agency for Toxic Substances and Disease Registry Clean Air Act Comprehensive Environmental Response, Compensation, and Liability Act Code of Federal Regulations Clean Water Act Federal Insecticide, Fungicide, and Rodenticide Act Hazard Ranking System Hazardous and Solid Waste Amendments Maximum Contaminant Level Maximum Contaminant Level Goal Nonbinding Preliminary Allocation of Responsibility National Contingency Plan National Priorities List National Response Center On-Scene Coordinator Occupational Safety and Health Act Occupational Safety and Health Administration Potentially Responsible Party Resource Conservation and Recovery Act Remedial Investigation/Feasibility Study Record of Decision Remedial Project Manager Reportable Quantity Superfund Amendments and Reauthorization Act Superfund Comprehensive Accomplishments Plan Solid Waste Disposal Act (RCRA predecessor) Toxic Substances Control Act Emergency Planning and Community Right-to-Know Act Underground Storage Tank Listed below are definitions of selected terms associated with CERCLA and SARA. Terms Administrative Record All documents containing information the govern- ment uses to (1) select response actions, and (2) impose administrative sanc- tions for violations of CERCLA and Title III of SARA, the Emergency Planning and Community Right-to-Know Act. This paper trail includes the RI/FS, the Record of Decision, and public comments. SARA appears to limit judicial review of the adequacy of a response action to the administra- tive record (CERCLA § 113(j)). ARAR A federal standard, or state standard that is more stringent, is legally applicable to the substance, or relevant and appropriate under the circumstances, that the cleanup must at least achieve (CERCLA § 121(d)). Consent Decree A legal document that specifies your obligations when you enter into a settlement with the government. A consent decree is mandatory in settlements about remedial action. The decree must be filed with and ap- proved by a court. Either a consent decree or an administrative order may be used in settlements about RI/FSs (CERCLA § 122(d)). De Minimis Settlement A settlement EPA may reach with a PRP if EPA determines that either (1) both the amount and the toxic or hazardous ef- fects of the substances the PRP contributed are minimal in comparison to other hazardous substances at the facility; or (2) the PRP is the owner of the facility, did not allow generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility, did not contribute to the release or threat of release at the facility, and did not purchase the property knowing that it was used for the generation, transportation, storage, treat- ment, or disposal of any hazardous substances (CERCLA § 122(g)). Emergency Plan Required under Title III of SARA, the Emergency Plan- ning and Community Right-to-Know Act (Section 303(a)), for each emer- gency planning district. Local emergency planning committees (see also Lo- cal Emergency Planning Committees) will prepare the plans, which will include: ¢ identification of facilities, and routes likely to be used for the transpor- tation of extremely hazardous substances; ¢ methods and procedures for responding to any release of extremely haz- ardous substances; ¢ designation of community and facility emergency coordinators to help implement the plan; ¢ procedures providing reliable, effective, and timely notification; © methods for determining the occurrence of a release, and the area or population likely to be affected by it; ¢ a description of emergency equipment and facilities in the community and at each facility, and list of the persons responsible for such equip- ment and facilities; © evacuation plans; * training programs for local emergency response and medical personnel; and © methods and schedules for exercising the emergency plan. Extremely Hazardous Substance A substance on a list EPA published in November 1985 in Appendix A of the ‘‘Chemical Emergency Preparedness Program Interim Guidance,”’ Title III Section 302(a). This list was also pub- lished in November 1986 (51 Federal Register 41,570) as an interim final rule under 40 CFR Part 300. EPA will revise the list from time to time. Facility Under CERCLA § 101(9), (1) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, land- fill, storage container, motor vehicle, rolling stock, or aircraft; or (2) any site or area where a hazardous substance has been deposited, stored, dis- posed of or placed, or otherwise come to be located. Does not include any consumer product in consumer use or any vessel. Facility Notification Notice to EPA under CERCLA § 103(c) of certain facilities where hazardous substances are or have been stored, treated, or disposed of. To provide a facility notification, you must complete and sub- mit an EPA form identifying the facility; the amount and type of hazardous waste to be found there; and any known, suspected, or likely releases of such substances from the facility. Unless exempted (e.g., hazardous waste management facilities with permits or interim status under RCRA), you must file notice if you (1) presently own/operate such a facility; (2) owned/operated such a facility at the time of disposal; or (3) accepted haz- ardous substances for transport and selected such a facility for treatment, storage, or disposal. Note that giving facility notification is different from reporting a specific release. Hazard Ranking System (HRS) The method EPA uses to determine which sites should be listed on the National Priorities List (NPL) under CERCLA. The HRS ranks sites by means of a mathematical rating scheme that com- bines the potential of a release to cause hazardous situations and the severity/magnitude of these potential impacts and the number of people who may be affected. Using the numerical scores from this scheme, EPA and the states list sites by priority and allocate resources for site investigation, en- forcement, and cleanup. Sites receiving high HRS scores appear on the Na- tional Priorities List. Under SARA, the HRS must be revised by EPA to determine whether it is adequately identifying sites for the NPL (CERCLA § 105(c)). Citizens may now petition EPA to conduct a preliminary assess- ment of a site near them. If the assessment indicates that a release may pose a threat to health or the environment, EPA will do an HRS scoring. (See also National Priorities List) Hazardous Chemical Under Title III Section 311(e), any chemical which is a physical hazard or a health hazard, except: ¢ any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration; ¢ any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use; ¢ any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public; ¢ any substance to the extent it is used in a research laboratory or a hos- pital or other medical facility under the direct supervision of a techni- cally qualified individual; and ¢ any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer. Hazardous Substance Superfund The fund, largely financed by taxes on petroleum and chemicals, and a new ‘‘environmental tax’’ on corporations, that provides operating money for government-financed actions under CERCLA. The fund is a revolving fund in the sense that it enables the gov- ernment to take action and then seek reimbursement later, or to clean up sites where responsible parties with sufficient cleanup funds cannot be found. Money recovered from PRPs is returned to the fund rather than to the U.S. Treasury. Hazardous Substances Under CERCLA § 101(14), any element, com- pound, mixture, solution, or substance which, when released to the environ- ment, may present substantial danger to public health/welfare or the envi- ronment. Also includes (1) any substance designated under Section 311(b)(2)(A) or any toxic pollutant listed under Section 307(a) of the Federal Water Pollution Control Act; (2) any hazardous waste having the character- istics identified under or listed pursuant to RCRA § 3001 (excluding any waste suspended from regulation under the Solid Waste Disposal Act by Congress); (3) any hazardous air pollutant listed under Section 112 of the Clean Air Act; and (4) any imminently hazardous chemical substance or mixture for which the government has taken action under Section 7 of the Toxic Substances Control Act. Excludes petroleum (including crude oil not otherwise specifically listed or designated as a hazardous substance under any of the above laws), natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). The definition in CERCLA is broader than the definition of hazardous wastes under RCRA. 6 Hazardous Wastes Those wastes that are regulated or ‘‘listed’’ under RCRA (40 CFR Part 261) or wastes that are ignitable, corrosive, reactive, or toxic. Local Emergency Planning Committee Under Title III Section 301(c), a committee to include local and state officials; health, environmental, and transportation personnel; and industry representatives, among others, will be appointed by the state emergency response commission for each emergency planning district. The local committee will prepare an emergency plan for the district. (See also Emergency Plan and State Emergency Response Commission.) Lead Agency The federal or state agency providing the On-Scene Coordi- nator (OSC) or the responsible official for a CERCLA response action. (See also On-Scene Coordinator.) Mixed Funding Agreement Allows EPA to reimburse parties for certain costs (with interest) of actions parties have agreed to perform, but EPA has agreed to finance. A mixed funding agreement can be used when some PRPs cannot currently pay for response costs, and other PRPs want to per- form response action and be reimbursed for the nonparticipating PRPs’ share (CERCLA § 122(b)). National Contingency Plan (NCP) The basic policy directive for federal response actions under CERCLA (§ 105). It sets forth the Hazard Ranking System and procedures and standards for responding to releases of hazard- ous substances, pollutants, and contaminants. The plan is a regulation (40 CFR Part 300) subject to regular revision. (See also Hazard Ranking System.) National Priorities List (NPL) A list of sites across the country slated for EPA enforcement action or cleanup (CERCLA § 105). EPA intends to revise the NPL three times a year, in April, September, and December. SARA’s schedules for EPA to evaluate sites are likely to cause sites to be added to the NPL. Note that many elements of the CERCLA/SARA program apply to sites regardless of whether they are on the NPL. (See also Hazard Rank- ing System.) National Response Center (NRC) The national communications center for activities related to response actions. Individuals must notify the NRC if their facilities or vessels release hazardous substances (other than federally permitted releases) in quantities considered reportable under CERCLA. Af- fected parties must notify NRC regardless of whether they have notified the appropriate state or local agency. Natural Resources Land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, or otherwise controlled by the U.S., any state or local gov- ernment, any foreign government, or any Indian tribe (CERCLA § 101(16)). Nonbinding Preliminary Allocation of Responsibility (NBAR) Determina- tion EPA may make of each PRP’s share of responsibility for cleanup. Part of SARA, the NBAR is an attempt to require EPA to provide more infor- mation to PRPs to encourage settlement (CERCLA § 122). Notice Letter EPA’s formal notice to PRPs that CERCLA-related action is to be undertaken at a site for which those PRPs are considered responsible. Notice letters are generally sent at least 60 days prior to scheduled obligation of funds for an RI/FS at a designated site. The intent is to give PRPs suffi- cient time to organize and to contact the government. A notice letter is sent again prior to implementing the remedy. On-Scene Coordinator (OSC) An individual, designated within an EPA region, who directs federal fund-financed response efforts and coordinates all other federal actions at the scene of a release. The OSC is responsible for developing contingency plans for federal response in the OSC’s area. Operable Unit A discrete response measure, consistent with a permanent remedy, but not the permanent remedy itself. Hence actions formerly con- sidered initial remedial measures might now be preliminary operable units. The main thrust of operable units is to facilitate faster action at sites; for example, by encouraging responsible parties to take some action, without having to agree to an entire remediation effort all at once. Potentially Responsible Parties (PRPs) Those identified by EPA as poten- tially liable under CERCLA for cleanup costs. PRPs may include generators and present or former owners/operators of certain facilities or real property where hazardous wastes have been stored, treated, or disposed of, as well as those who accepted hazardous waste for transport and selected the facility. Reauthorization The Superfund Amendments and Reauthorization Act (SARA) expanded the scope of CERCLA. Signed by the President on Octo- ber 17, 1986, SARA is a 5-year extension of the program to clean up toxic releases at uncontrolled or abandoned hazardous waste sites. Record of Decision (ROD) Written record deciding on the appropriate remedy selected for the cleanup at a site relying generally on the Remedial Investigation/Feasibility Study (RI/FS). Published by the government after completion of an RI/FS, the ROD identifies the remedial alternative chosen for implementation at a Superfund site. The ROD is part of the administra- tive record. Judicial review of EPA cleanup decisions may be limited to the administrative record. Release Any spilling, leaking, pumping, pouring, emitting, emptying, dis- charging, injecting, escaping, leaching, dumping, or disposing into the envi- ronment (CERCLA § 101(22)). Includes the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance, pollutant, or contaminant. Exclusions include (1) releases solely exposing workers in a workplace, with respect to a claim they may bring against the employer; (2) engine exhaust emissions from motor vehicles, roll- ing stock, aircraft, vessels, or pipeline pumping station engines; (3) nuclear releases subject to the Atomic Energy Act and financial requirements of the Nuclear Regulatory Commission (also excludes any release of source, by- product, or special nuclear material from any processing site designated un- der Section 102(a) or 302(a) of the Uranium Mill Tailings Radiation Control Act); and (4) the normal application of fertilizer. Release also means sub- stantial threat of release. Remedial Investigation/Feasibility Study (RI/FS) Extensive technical studies conducted by the government or by PRPs to investigate the scope of contamination (RI) and determine the remedial alternatives (FS) which, consistent with the NCP, may be implemented at a Superfund site. Govern- ment-funded RI/FSs do not recommend a specific alternative for implemen- tation. RI/FSs conducted by PRPs usually do recommend and technically support a remedial alternative. An RI/FS may include a variety of on- and off-site activities such as monitoring, sampling, and analysis. Remedial Project Manager An individual, designated within an EPA re- gion, who directs federal fund-financed remedial actions and coordinates all other federal actions at the scene. The counterpart of the On-Scene Coordi- nator for removal actions. (See also On-Scene Coordinator.) Remedy or Remedial Action Under CERCLA § 101(24), actions consistent with permanent remedy taken instead of, or in addition to, removal action to prevent or minimize the release or threat of release so that hazardous substances will not migrate to cause substantial danger to present/future public health, welfare, or the environment. Includes a variety of on-site mea- sures (storage, perimeter protection, recycling or reuse, dredging, excava- tion, etc.), and required monitoring, and the costs of permanent relocation of affected populations when deemed necessary. Includes off-site measures such as transport, storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials. Removal, Remove, or Removal Action Under CERCLA § 101(23), actions taken to respond promptly to an urgent need. With regard to hazardous substances, the cleanup or removal of released substances from the environ- ment; actions in response to the threat of release; actions that may be neces- sary to monitor, assess, and evaluate the release or threat; disposal of re- moved material; or other actions needed to prevent, minimize, or mitigate damage to public health or welfare or to the environment. Removal also in- cludes, without being limited to, security fencing or other measures to limit access; provision of alternative water supplies; temporary evacuation and housing of threatened individuals not otherwise provided for; and any emer- gency assistance provided under the Disaster Relief Act. Reportable Quantity (RQ) Quantity of a hazardous substance considered reportable under CERCLA in the event of a release. Reportable quantities are identified in 40 CFR § 302.5 and may be 1, 10, 100, 1000, or 5000 pounds. Quantities are to be measured over a 24-hour period. Response Action Action taken to remove, remedy, or clean up the contami- nation at a site under CERCLA § 101(25). Includes enforcement-related activities. State Emergency Response Commission A commission state governors will appoint as required by Title III Section 301(a). The commission will appoint local emergency planning committees, supervise and coordinate their activi- ties, and designate emergency planning districts. Special Notice Procedures The government may use these procedures under SARA’s settlement provisions (Section 122) to attempt to reach agreement with PRPs to conduct RI/FS and other remedial actions. When it wants to begin such negotiations, the government must notify the PRP, and provide the following information: (1) names and addresses of other PRPs, (2) vol- ume and nature of substances each PRP contributed, and (3) a ranking of the substances by volume. Superfund Comprehensive Accomplishments Plan (SCAP) Document EPA uses as a central planning and management tool for budgeting expenditures and technical support of enforcement actions at Superfund sites. The SCAP, maintained at federal and regional EPA offices, indicates planned expendi- tures for Superfund sites on a quarter-by-quarter basis for each fiscal year. Toxic Chemicals Listed in Committee Print Number 99-169 of the Senate Committee on Environment and Public Works (‘‘Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986’). This list of 329 chemicals was published by EPA on February 4, 1987 (52 Federal Register 3479). EPA may add or delete chemicals from the list. In addition, Title III establishes a procedure citizens and governors can use to petition EPA to add or delete a chemical. 10 Part I, Section 1 What is CERCLA/SARA? FRAMEWORK — THE “NEW”? SUPERFUND PROGRAM About this Section of the Handbook This section is intended as a primer for those relatively unfamiliar with CERCLA and SARA, Its purpose is to assist you in understanding your responsibilities and responses under Superfund. Readers more versed in Superfund may want to skim this section as a quick review or skip to more detailed discussions on managing response to CERCLA. Overview What is CERCLA? The Comprehensive Environmental Response, Compensation, and Liabil- ity Act (CERCLA) — commonly known as Superfund — was passed into law in December 1980 in the wake of such incidents as Love Canal and the Valley of the Drums. Superfund established a program to identify sites from which releases of hazardous substances into the environment might occur or have occurred, to ensure that they are cleaned up by responsible parties or the government, to evaluate damages to natural resources, and to create a claims procedure for parties who have cleaned up sites or spent money to restore natural resources. The first 5 years of CERCLA were characterized by litigation concerning the implementation and constitutionality of the statute. Although not to anyone’s complete satisfaction, the first 5 years of Superfund saw approxi- mately $600 million in private party cleanups agreed to, 580 removal actions started at NPL and non-NPL sites, 470 completed Remedial Investigations/ Feasibility Studies (RI/FSs), and 200 lawsuits filed by the government. As of early 1985, EPA considered 10 sites to be cleaned up. Despite this record, Congress demanded more and faster action at sites. The 1986 reauthorization is Congress’s attempt to put more money to work at more sites. What is SARA? The Superfund Amendments and Reauthorization Act (SARA), was signed into law on October 17, 1986. SARA is a 5-year extension of the pro- gram to clean up hazardous releases at uncontrolled or abandoned hazard- ous waste sites. SARA is funded at $8.5 billion, a five-fold increase over the initial CERCLA program. SARA creates a separate half billion dollar fund for the cleanup of leaking underground storage tanks containing petroleum. The amendments are actually longer than the original law. The new Superfund sets much more stringent remedial standards which will increase the potential cost of cleanup. It codifies much existing U.S. Environmental 11 Protection Agency (EPA) policy and court decisions interpreting the old law. For Potentially Responsible Parties (PRPs), the most important additions of SARA to the CERCLA program include: © codification of former EPA ‘‘policy’’ with respect to (1) CERCLA com- pliance with other environmental laws, (2) the off-site disposal policy, (3) applicable or relevant and appropriate requirements (ARARs), and (4) the emerging settlement policy; stringent cleanup standards with a preference for permanent solutions such as incineration that significantly reduce waste volume, toxicity, or mobility, encouraging an alternative to land disposal; e limits on the use of Alternate Concentration Limits (ACLs) for contam- inated groundwater for any receptor beyond the facility boundary; ¢ more consideration of state standards, including provisions for state challenges of remedial actions; © a review every 5 years of remedial action if any hazardous substances remain on site to assure continued protection of human health and the environment, with any necessary remedial actions reported to Congress; ¢ mandatory schedules for commencing RI/FS activities and new remedial actions over the next 5 years, with ‘‘goals’’ established for ranking ad- ditional sites; © new and independent regulatory programs, such as the Emergency Plan- ning and Community Right-to-Know Act; © potential for citizen suits against anyone violating any Superfund re- quirement or against any government officer for failure to perform a duty under SARA; and ¢ guarantee of greater citizen input and involvement in remedy selection and cleanup activities. What SARA means to you is that: ¢ The Superfund program is continuing, with a significantly expanded budget aimed at accelerating enforcement actions. ¢ There is added structure and procedure within the new program, with deadlines attached to the more important Superfund activities. ¢ Remedial action at Superfund sites will be established through the ad- ministrative record. e There will be significantly more public and state involvement in the Superfund process. What are the major provisions of Superfund? The goal of the Superfund program is to clean up sites where releases have occurred or may occur. Two mechanisms are used to accomplish this goal: enforcement and fund-financed cleanup. Superfund requires owners/ 12 operators and other specified individuals to identify facilities where hazard- ous substances were deposited in the past, and to notify EPA of those facili- ties (Section 103(c)). Superfund also requires you to report spills at a facility or vessel (Section 103(a)). In addition, Congress has set up requirements for EPA action including: ¢ EPA must revise the National Priorities List (NPL), a list of all the sites that may need cleanup where the Superfund program should be used. EPA must revise and update the Hazard Ranking System (HRS) to de- termine which sites on the list require further investigation, and which should receive priority attention from the government, whether through enforcement or cleanup (Section 105). ¢ EPA must revise the National Contingency Plan (NCP) which is a le- gally binding regulation that sets out the process for investigating sites and cleaning them up (Section 105). The NCP establishes the rules of the road for how EPA will use its authority and spend its money. ¢ EPA is authorized to investigate, obtain documents and information, inspect sites (Section 104), and subpoena documents and witnesses (Section 122(e)(3)(B)). ¢ EPA may spend money (consistent with the NCP) at sites to investigate site conditions, and then design and implement a remedy. Superfund allows, but does not require, EPA to permit private parties to conduct cleanup (Section 104(a)). ¢ EPA has broad enforcement authority to require private parties to un- dertake cleanups (Section 106) or to recover money it spent from PRPs (Section 107). Courts have interpreted the statute to be retroactive in its application, to provide for strict liability without regard to fault, and in appropriate circumstances to impose joint and several liability. e EPA must impose federal standards, or state standards that are more stringent, that are legally applicable or relevant and appropriate (ARAR). If EPA does not use an ARAR, it must explain why (Section 121). ¢ EPA may now settle more easily with de minimis parties and use Superfund money in ‘‘mixed funding’’ settlements. Section 113 also provides protection for PRPs who settle with EPA from suits by non- settlers (contribution protection). e EPA is to develop an administrative record (Section 113(j)); any review of decisions regarding the remedy appears to be limited to the record. The timing of challenges to the remedy seems to be limited to the cost recovery phase, and ‘‘pre-enforcement review’’ of cleanup decisions may not be allowed (Section 113(h)). How is government response under Superfund financed? Operating money for the government to execute response actions under both CERCLA and SARA is provided by a trust fund. Now known as the 13 Hazardous Substance Superfund under SARA, it (1) allows the government to take action now and seek reimbursement later, and (2) provides nonreimbursable money for cleaning up sites where no responsible party with sufficient funds can be found. SARA has increased the size of the fund to about $8.5 billion for 5 years. The original Superfund law was passed in 1980 and was funded at $1.6 bil- lion for 5 years. The major source of revenue under the original law was a tax on petroleum and 42 listed chemicals. Sources for the fund under reauthorization are: © taxes on petroleum and chemicals (similar to taxes under the original Superfund), © anew ‘‘environmental tax’’ on corporations, ¢ $1.25 billion from general appropriations, © costs recovered from responsible parties, © punitive damages and penalties under Superfund, and © earned interest. Reporting and Recordkeeping Requirements What are the various types of reports? There are two types of reporting requirements under Superfund: spill re- porting and facility notification requirements. The first reporting require- ment under CERCLA § 103(a) relates to actual releases (including spills) of hazardous substances; the second, under CERCLA § 103(c), relates to facili- ties where hazardous wastes have been disposed of and where such releases might potentially occur. Separate reporting requirements were created under Title III of SARA, known as the Emergency Planning and Community Right-to-Know Act of 1986, requiring you to provide (1) immediate notice for accidental releases of hazardous substances and extremely hazardous substances; (2) information to local emergency planning committees for the development of emergency plans; and (3) Material Safety Data Sheets, emergency and hazardous chem- ical inventory forms, and toxic chemical release forms. Title III of SARA is a freestanding act that is not part of Superfund. (See Part III.) What are the spill reporting requirements? Under the spill reporting requirements of CERCLA § 103(a), if you are in charge of a vessel or an offshore/onshore facility, you must immediately notify the National Response Center at U.S. Coast Guard headquarters in Washington, D.C. (toll-free: 800-424-8802), when your facility or vessel re- leases a hazardous substance (other than a federally permitted release) if the release is greater than or equal to the reportable quantity (RQ) for that sub- stance. A reportable quantity may be 1, 10, 100, 1000, or 5000 pounds per day (40 CFR § 302.5). The federal time period for measuring the amount 14 released is 24 hours. In addition to the spill reporting requirement under Superfund, you may have to report under Section 304 of Title III. (See Part III.) In most instances you will also have to notify the appropriate state agency because most states have notification requirements similar to the federal re- quirements. You should be sure to determine the specific state release re- quirements that apply to your facility. Some states require notification of a release of any quantity of a pollutant that may be harmful to human health or the environment. Even though you give immediate notification to a state agency, you also have an independent obligation to immediately notify the National Response Center. Your obligation to report to the National Response Center cannot be satisfied by notifying anyone else. Federal and state agencies strictly enforce the immediate reporting require- ment. During the 5-year history of Superfund and state release reporting requirements, penalties have been imposed for delays of only 1 or 2 hours. The government reviews your ‘‘notice’’ to determine whether you are tak- ing appropriate action to handle a release, and whether any additional ac- tion is required. Generally, spill reporting requirements do not apply to past disposal or releases, unless they result in a current release to the environ- ment. Exclusions from Federal Spill Reporting Requirements federally permitted releases consumer products in consumer use workplace exposures engine exhaust emissions releases of source, by-product, or special nuclear material normal application of fertilizer application of a pesticide registered under FIFRA, or the handling and storage of such a pesticide by an agricultural producer © any release required to be reported under RCRA, and which has been reported to the National Response Center © any release exempted from reporting under RCRA © continuous releases, stable in quantity and rate: (1) for which facility notice was given, or (2) for which notice of release was given, for a long enough period to establish the regularity of the release (Note: ‘‘Continuous release’’ notice must be given at least annually and whenever there is a statistically significant increase.) * natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel © petroleum, crude oil, or any fraction thereof unless otherwise listed (See detailed discussion of Petroleum Exclusion.) 15 Who must report? The obligation to report may fall on both individuals and corporations. More than one person may be in charge of a facility or vessel and be obli- gated to report. Each facility should clearly designate an individual responsi- ble for complying with the spill reporting requirements. What are the facility notification requirements? SARA has not changed the facility notification requirements of CERCLA § 103(c), the second type of reporting under Superfund. Under the facility notification provisions of Section 103(c) you must notify EPA of a facility where hazardous wastes have been treated, stored, or disposed of unless already identified through the Resource Conservation and Recovery Act (RCRA) notification procedures. EPA will use this information to learn the location of old disposal sites and conduct HRS scoring to determine whether each site should be added to the NPL. To file facility notification, you must complete and submit EPA’s form, ‘‘Notification of Hazardous Waste Site’’ (OMB No. 2000 0138), identifying the facility; the amount(s) and type(s) of hazardous waste(s) to be found there; and any known, suspected, or likely releases of such waste(s) from the facility. Unlike spill reporting, which applies to both hazardous substances and wastes, facility notification applies only to hazardous wastes as defined un- der RCRA § 3001. You need not file facility notification for all hazardous substances under Superfund. Note, too, that EPA is implementing this re- quirement by seeking a good faith effort on your part to provide the speci- fied information. The agency’s main concern is site location, types of sub- stances present, and layout. Who must file? Unless exempted, you must file facility notification if: © you presently own or operate such a facility; © you owned or operated such a facility at the time of disposal; or © you accepted hazardous waste for transport and selected such a facility for treatment, storage, or disposal. If you suspect you need to file a facility notification but are not certain you have to do so, as might be the case if you are the owner of a facility with incomplete records, you may choose to make a precautionary filing. In the filing you can tell EPA that you are not certain you have to report, but that you are doing so anyway. 16 Exclusions from Facility Notification Requirements ¢ hazardous waste management facilities under a RCRA permit or interim status * facilities containing less than 55 gallons of hazardous waste ¢ sites where hazardous waste management was limited to minor leakage/spillage, unless it poses significant risk to human health or the environment ¢ municipal landfills, town dumps, and other facilities receiving only household wastes © treatment/storage facilities from which all hazardous wastes have been removed © consumer products in consumer use * application of a registered pesticide, or its handling/storage by an agricultural producer What is the deadline for facility notification? If you are responsible for facility notification, you should already have filed by now. The deadline was June 1981. What if you have missed the notification deadline? The agency’s policy in practice has generally been to accept late notifica- tion without penalty as long as you demonstrate good faith and have a rea- sonable explanation of your situation. EPA treats the facility reporting obli- gations as ongoing, so you should report new evidence of past disposal. If you have discovered a facility which you should have reported, but did not, you should discuss your case with an attorney or consultant familiar with EPA requirements under Superfund. He or she can help you determine your potential liability and the most appropriate path for you to take. You should take action as soon as prudently possible. What records does CERCLA require you to retain? Under both CERCLA and SARA, you must give facility notice. You must retain (generally for 50 years) records of: ¢ the location, title, and condition of your facility/facilities; and ¢ the identity, characteristics, quantity, origin, and condition of any haz- ardous substances contained or deposited there. EPA, at its discretion, may shorten or lengthen the retention period on a case-by-case basis. During that period, it is illegal to destroy, mutilate, erase, dispose of, conceal, or otherwise render unavailable or unreadable such records. 17 What are the penalties for failure to notify or retain records? SARA has added civil sanctions and increased the criminal sanctions for violating the spill reporting and recordkeeping requirements. SARA has not altered the penalties for violating the facility notification requirements. If you knowingly fail to give facility notification, you personally may be sub- ject to the following criminal sanctions, upon conviction: ¢ a fine of not more than $10,000, and/or ¢ imprisonment for not more than | year. In addition, you will forfeit your right to limitations on liability and to any defense to liability under Superfund (Section 107). There are no civil penal- ties for violating the facility notification requirements. The criminal penalties for violating the spill reporting and record retention requirements are more stringent. It is considered a violation of the spill re- porting requirement if you (1) fail to report a release you know of, or (2) report false or misleading information. If convicted of violating spill report- ing or record retention requirements, you may face: ¢ imprisonment for up to 3 years for a first conviction and up to 5 years for a subsequent conviction (under the original Act the maximum prison sentence was | year); and/or © as an individual, a maximum fine of $250,000; or * as a corporation, a maximum fine of $500,000. To help enforce these sanctions, SARA has added a new provision allow- ing a reward of up to $10,000 to anyone providing information leading to the arrest and conviction of a person for a criminal violation of CERCLA. In addition to the criminal sanctions for violating the spill reporting and record retention requirements, you face civil sanctions in administrative or judicial proceedings. PRPs can expect EPA to use the administrative pro- ceedings more often for its own convenience. The civil penalties are a maxi- mum of $25,000 per violation or per day for each day during which the vio- lation continues, with a maximum penalty of $75,000 for a second or subsequent violation. You can appeal an administrative penalty in federal court. The court is likely to limit its review to the administrative record, so it is important for you to participate in developing the record. The administrative record con- sists of the information EPA uses to reach its decision and to assess a pen- alty against you. 18 Petroleum Exclusion What is the petroleum exclusion? Superfund excludes petroleum, including crude oil or any fraction thereof that CERCLA/SARA does not list as a hazardous substance, from the defi- nition of hazardous substance, pollutant, or contaminant. Thus, substances within the petroleum exclusion are not covered by CERCLA requirements. EPA has not clearly defined the scope of the petroleum exclusion, creating substantial uncertainty in the spill reporting requirements under CERCLA. A major problem in interpreting the exclusion is that some listed hazardous substances, such as benzene and toluene, are present in most, if not all, pe- troleum products. EPA has interpreted the petroleum exclusion to exclude in their entirety pure petroleum and pure petroleum fractions that occur natu- rally, even though they contain substances that are otherwise listed hazard- ous substances. Thus, EPA interprets the term ‘‘petroleum’’ to encompass crude oil and crude oil fractions, including any indigenous hazardous substances. Determining whether the exclusion applies to you is more difficult when you have a material consisting of petroleum and nonindigenous or elevated levels of hazardous substances. EPA decides whether the exclusion applies to the hazardous substances, not to the material, because the petroleum in the material will always be within the exclusion. Although EPA has not established clear rules governing petroleum addi- tives, the agency’s position is that hazardous substances added during refin- ing are within the exclusion, if they are added to a substantial amount of all petroleum products during refining. For example, gasoline including the in- creased level of benzene due to refining is within the exclusion. There is no published EPA guidance about the exact meaning of ‘‘substantial amount.’’ EPA maintains that hazardous substances added to petroleum beyond the normal course of refining are not excluded. Is waste oil excluded? EPA has specifically stated that hazardous substances added to waste oil are not within the exclusion, although waste oil itself is excluded from regulation. Are pesticides excluded? EPA has stated that there is no exclusion for pesticides, even though their active ingredients may be contained in a petroleum distillate. Will EPA take response action for a material consisting of a petroleum product and inseparable hazardous substances? EPA has indicated that it may not take a response action if only a small amount of nonindigenous hazardous substances is present. EPA justifies the response action on the basis of the hazardous substances, or pollutants, or contaminants present — not the oil, even though it inherently contains haz- 19 ardous components. However, if a substantial amount of nonindigenous sub- stances is present, EPA may take response actions, including the cleanup of any oil which is so intermingled with the hazardous substances that the cleanup could not otherwise occur. When does the petroleum exclusion apply? EPA appears to be dealing on a case-by-case basis with difficult questions about when the exclusion applies. If you are uncertain about whether a sub- stance is excluded, you can call EPA. EPA guidance on the petroleum exclu- sion is published in 50 Federal Register 13,460 (Apr. 4, 1985), and 51 Fed- eral Register 8206 (Mar. 10, 1986). Internal EPA guidance that many rely on includes a December 2, 1982, General Counsel letter about diesel oil spills, and an August 12, 1983, General Counsel letter about gasoline spills. Government Inspections When can the government obtain information from you? According to the original Superfund Act the government could obtain in- formation from you to determine the need for response to a release or to enforce provisions of the Act. In response to some court decisions and per- ceived inadequacies in the original Act, Superfund reauthorization has ex- panded the government’s authority by adding the ability to obtain informa- tion from you to take response action (CERCLA § 104(e)(1)). In addition, SARA has added a broad catch-all provision stating that EPA can use any lawful means to obtain information. Congress, though, has tried to limit that by stating that the government may obtain information under Section 104(e) only for determining the need for response, or choosing or taking re- sponse action, or otherwise enforcing the Act. The original Act broadly defined the information you had to give the gov- ernment by stating that you had to ‘“‘furnish information relating to (hazard- ous) substances.’’ SARA is more specific about the information you must provide: © the identity, nature, and quantity of materials generated, treated, stored, or disposed of at, or transported to, a facility or vessel; ¢ the nature or extent of a release or threatened release of a hazardous substance, pollutant, or contaminant at or from a facility or vessel; and ¢ the ability to pay for or perform a cleanup. In addition, upon reasonable notice, you may have to allow a government employee to inspect and copy documents relating to the above matters, or you can choose to copy the documents for the government at your own expense. 20 When can EPA enter and inspect your property? Under the original Act, EPA could enter and inspect your property to de- termine the need for response to a release or enforce other provisions of the Act. One court found that the original Act did not give EPA authority to enter property for response planning operations. In response to that deci- sion, Congress has amended Superfund so that it clearly allows EPA to enter and inspect your property to choose or take any response action (Section 104(e)(1)). SARA also explicitly gives EPA authority to enter and inspect property adjacent to a facility. Although SARA has expanded EPA’s authority to enter and inspect your property, it also appears to have put two limits on it. First, EPA can enter and inspect only for determining the need for response, choosing or taking response action, or otherwise enforcing the Act. Second, EPA can enter and inspect your facility or property only if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pol- lutant or contaminant. When can you withhold information from the government because it is confidential? EPA cannot obtain from you information that the attorney-client privilege and the work-product doctrine protect as confidential. Sampling and analy- sis, though, are not protected and therefore must be disclosed to EPA. Gen- erally speaking, factual data cannot be protected. Government Response Authorities When can the government take action under Superfund? Under CERCLA/SARA, the President has broad freedom to respond to actual or threatened releases of hazardous materials. It is important to re- member that threatened, not actual, releases are enough to give rise to au- thority to act under CERCLA. Authority to abate the risk of harm from even threatened releases lies at the heart of the statute. The President has delegated this authority principally to EPA for land, groundwater, and sur- face water and to the Coast Guard for navigable waters (Executive Order No. 12,580). Note that ‘‘pollutant or contaminant’’ is defined very broadly: it includes just about any substance that, upon release into the environment, may cause death, disease, behavioral abnormalities, cancer, genetic muta- tion, physiological malfunctions, or physical deformities in an organism. 21 The government’s first response upon identifying an actual or threatened release is to take action to prevent public contact or exposure to potentially hazardous materials on the site. Has SARA changed this? SARA has placed some restrictions on the government’s ability to respond to actual or threatened releases. The government cannot take removal or remedial action under CERCLA in response to a release or threat of release: ¢ of a naturally occurring substance from a location where it is naturally found; ¢ from products (e.g., asbestos) that are part of the structure of, and re- sult in exposure within, residential buildings or businesses or commu- nity structures; or into public or private drinking water supplies due to deterioration of the system through ordinary use. The limitations do not apply if the government determines that a release or threat of release is a public health or environmental emergency and no other qualified person will respond to the emergency quickly. This exception al- lows EPA to act in an emergency. A new provision of SARA directs the gov- ernment to give primary attention to releases that may present a public health threat. 22 Schedules SARA Imposes on EPA Date Activity January 1, 1988 EPA must complete a preliminary assessment of all facilities contained on the Comprehensive En- vironmental Response, Compensation, and Lia- bility Information System (CERCLIS) as of Oc- tober 17, 1986, including a statement of whether a site inspection is necessary and by whom it should be carried out. January 1, 1989 All those site inspections must be completed. October 17, 1990 Each facility contained on CERCLIS as of Octo- ber 17, 1986, must be evaluated using the NCP’s criteria to determine priorities for inclusion on the NPL, if warranted based on a site inspection or preliminary assessment. Within 4 years Facilities listed in CERCLIS after October 17, 1986, must be evaluated. October 17, 1989 EPA must begin RI/FSs for 275 facilities listed on the NPL, in addition to those commenced before October 17, 1986. If that schedule is not met, additional RI/FSs must be started at the following rate: October 17, 1990 175 RI/FSs; October 17, 1991 200 RI/FSs; and October 17, 1991 A total of 650 RI/FSs must be started. October 17, 1989 EPA must begin on-site remedial action at 175 facilities on the NPL, in addition to those facili- ties at which remedial action has commenced before October 17, 1986. October 17, 1989 to Remedial action must begin at 200 additional October 17, 1991 facilities. Does the government have to give PRPs an opportunity to perform removal or remedial actions? No. SARA modified the old law to give the government discretion to al- low responsible parties to conduct RI/FSs and response actions. When a responsible party will perform response action properly and promptly, the government may allow the party to carry out the action and/or conduct the RI/FS. Here SARA codifies EPA’s practice, and implementation of the NCP, of refusing to find that the government must let responsible parties conduct response actions if they can do so properly. 23 If the government determines that you are qualified to conduct an RI/FS, you will be able to do so only if: ¢ the government arranges for a qualified person to oversee and review the RI/FS, and ¢ you agree to reimburse the fund for any costs the government incurs for the oversight arrangement. (Note: EPA has some discretion in negotiat- ing the amount of oversight costs.) What government response to a hazardous release is authorized? Under both the original Act and reauthorization, the government is au- thorized to: © remove or arrange for removal of the substance, including removal from any contaminated natural resource; © provide for remedial action; and ¢ take any other response measure needed to protect public health or wel- fare, including the grant of emergency assistance under the Disaster Re- lief Act. Such activity must be consistent with the NCP. “Removal’’ and ‘‘remedial action’’ can include a sweeping array of activi- ties, which you as a responsible party (e.g., generator, owner, operator) may be asked to finance. Removal actions, although considered to be short-term remedies, can include total surface cleanup. Remedial actions are generally longer-term solutions and can include groundwater remediation. When the government does the cleanup using Superfund monies, it will sue PRPs for reimbursement of ail costs (including emergency aid, such as temporary housing assistance, litigation, experts, studies, etc.). (See Part I, Section 2 for detailed discussion of removal/remedial actions.) Can EPA acquire property to conduct remedial action? Yes. Under Section 104(j) of Superfund the government can acquire by purchase, lease, condemnation, donation, or otherwise, any real property it has determined is necessary to conduct a remedial action. The Act specifies that no one can sue the government to compel it to acquire property. Before EPA can use its discretion to acquire property to conduct a remedial action, the state in which the property is located must assure EPA that it will accept responsibility for the property after the remedial action is completed. Under SARA, a federal, state, or local government agency will not be liable under CERCLA solely because it acquired an interest in real estate. Even if EPA does not use its authority under Section 104(j), individuals who believe their property has been taken by response action may seek compensation under the Tucker Act, 28 USC § 1491. 24 What are the limitations on government response? Normally, federal removal actions may not continue after: ¢ $2 million has been spent (changed from $1 million under the original Act), or ¢ 12 months have elapsed since response began (changed from 6 months under the original Act). What must states do before the federal government will take remedial ac- tion? The federal government will not take remedial (as opposed to removal) action unless the state agrees to: ¢ assure all future maintenance of response actions; ¢ assure the availability of a hazardous waste disposal facility for neces- sary off-site handling; and © pay or assure payment of: - 10 percent of all costs of remedial action; or - 50 percent, or a greater amount if the government deems appropri- ate, of the response costs if the facility was operated by the state or a political subdivision at the time hazardous substances were dis- posed there. (Note: For this provision, ‘‘facility’’ does not include navigable waters or the sediments underlying them.) SARA has changed some of the conditions to which a state must agree before the federal government will take remedial action. SARA has expanded the requirement that a state must pay or assure payment of 10 per- cent of all remedial action costs by expanding the definition of a completed remedial action. This now includes on-site or off-site treatment to restore groundwater and surface water quality to a level that protects human health and the environment. SARA has also changed the conditions triggering a state’s payment of 50 percent or more of response costs. CERCLA origi- nally made states liable for at least 50 percent of the response costs of facili- ties they owned. SARA has expanded states’ liabilities to sites they merely operated. States can be liable for facilities they passively operated through contracts with other parties to perform the actual operations. Effective October 17, 1989, the government will not take remedial action unless the state will assure the availability of hazardous waste treatment or disposal facilities that: © have adequate capacity for the destruction, treatment, or secure dis- posal of a// hazardous wastes (not just Superfund wastes) reasonably expected to be generated within the state during the 20 years following the assurance; © are within the state or outside the state under an interstate agreement; 25 © are acceptable to the government; and © are in compliance with RCRA regulations. What is the Agency for Toxic Substances and Disease Registry? Superfund created the Agency for Toxic Substances and Disease Registry (ATSDR) as an agency within the Public Health Service to work with other government agencies to implement Superfund’s health-related authorities and to: ¢ establish and maintain a national registry of serious diseases and ill- nesses and a national registry of persons exposed to toxic substances; ¢ maintain literature, research, and studies on the health effects of toxic substances; ¢ maintain a listing of areas closed to the public or restricted in use be- cause of toxic substance contamination; ¢ provide medical care and testing to individuals exposed to toxic sub- stances; and © conduct periodic survey and screening programs to determine relation- ships between exposure to toxic substances and illness. SARA has greatly expanded ATSDR’s role. Some of ATSDR’s new re- sponsibilities are to: ¢ perform a health assessment for each facility on the NPL; ¢ work with EPA to compile and periodically revise a list of hazardous substances most commonly found at facilities on the NPL that pose sig- nificant threats to human health; © prepare toxicological profiles of the substances on the list; and ¢ initiate research to determine the health effects of substances on the list, if existing information about a substance’s health effects is inadequate. What enforcement authority does the government have under CERCLA? Under CERCLA/SARA, if federal regulatory authorities (i.e., EPA or the Coast Guard) determine that there may be imminent and substantial danger to public health and welfare or the environment because of an actual or threatened release of a hazardous substance from your facility, CERCLA authorizes the government to sue you in U.S. district court or take other actions, including issuing administrative orders, to require you to undertake a cleanup. SARA has increased the civil penalty for willful violation of an order without sufficient cause from a maximum of $5,000 to $25,000 a day. Today, the government frequently prefers to undertake the cleanup itself, without having to prove imminent and substantial endangerment, and then sue PRPs in cost recovery actions. 26 When can you challenge the government’s cleanup decisions? SARA appears to have codified judicial decisions under the original Superfund which held that courts would not review the government’s deci- sions about cleanups until PRPs challenged them in cost recovery suits. In addition, SARA appears to direct that government’s decisions should be up- held unless, based on review of the administrative record, they were arbi- trary and capricious or otherwise not in accordance with law. The adminis- trative record is the group of documents that records the information the government relies upon to make its decisions about response actions. SARA’s apparent limit of judicial review to the administrative record makes it important for you to participate in the record’s development. (See discus- sion of enforcement in Part II, Section 1.) Superfund Liability Who may be responsible for the financial liabilities Superfund imposes? Superfund imposes substantial financial liabilities on those considered re- sponsible for Superfund sites: © current owners or operators of a vessel or facility, © owners or operators of a facility at the time of disposal or release of hazardous substances, © those who arranged for treatment or disposal of hazardous substances at a facility (in most cases, the generators of the hazardous substances), and © those who accept/accepted hazardous substances for transport to a fa- cility they themselves selected. Reauthorization has not changed the categories of entities who may be liable. Courts have held individuals directly liable under Superfund for their ac- tive participation in hazardous waste management, such as arranging for disposal and transport of hazardous substances. Courts have held corporate employees directly liable for their hazardous waste management activities. (See, e.g., U.S. v. NEPACCO, No. 84-1837 (8th Cir. 1986).) Secured credi- tors who take a security interest in hazardous waste sites may face potential Superfund liability if they foreclose on the sites or exercise operational con- trol. (See U.S. v. Mirabile, 15 ELR 20914 (E.D. Pa. 1985); U.S. v. Mary- land Bank & Trust Co., 632 F. Supp. 573 (D. Md. 1986).) What financial liability does Superfund impose? Superfund initially imposed liability for most costs of response incurred by the federal/state government that were consistent with the NCP. These might include, for example, consultants’ and attorneys’ fees, or damages for injury to natural resources, including the cost of assessing the injury. (See U.S. v. NEPACCO, 579 F. Supp. 823 (W.D. Mo. 1984).) 27 SARA adds two other important sources of liability. One is the cost of any health assessment or health effects study done for ATSDR. The other is for interest on all recoverable amounts, from the date payment of a speci- fied amount is demanded in writing, or the date of the expenditure, which- ever is later. Are there financial limits to liability? Under CERCLA and SARA, liability for a single incident is generally lim- ited to $50 million plus all costs of response. However, there are no limits to liability when: © there was willful misconduct or negligence; ¢ the primary cause of the incident was a violation of safety, construction, or operating standards or regulations; or ¢ the responsible party fails to provide assistance requested by a public official under the NCP. What is liability for treble damages? If you are liable under Superfund, and you fail without sufficient cause to properly provide response action under a formal administrative order, you may be liable for punitive damages up to triple the costs incurred by the fund. Liability for punitive damages is in addition to the liability for actual cleanup costs. If you comply with an order to provide a response action or pay for it, you can make a claim to the agency for reimbursement from the fund for the reasonable costs for the required action (plus interest). SARA’s reimbursement provisions allow parties to challenge orders by claiming either they were issued to parties who were not PRPs, or that all or part of the action ordered was arbitrary and capricious. If you establish on the administrative record that you are not liable for response costs, and that the reimbursement you seek is reasonable in light of the order, then you will be reimbursed. Even if you are liable, you may recover response costs to the extent that you can demonstrate that the government’s selection of response action was arbitrary and capricious. If EPA does not reimburse you, you can sue in federal district court for the cost of the response action and fees and other expenses. What is strict, joint, and several liability? To recognize the substantial liabilities that CERCLA may impose on you, it is crucial to understand ‘‘strict, joint, and several’’ liability. SARA has not changed this liability. Basically, joint and several liability refers to the scope of liability. It means each and every PRP at a site where the injury is indivisible can be held liable individually for the entire cost of site cleanup. For example, if you generated hazardous wastes that were disposed of at a site now designated a Superfund site, you can be held liable for all cleanup costs. Although the government does not sue all parties responsible for a particular site, it believes each one may be considered financially liable. 28 Strict liability refers to the standard of liability. It means the government need not prove any intent or negligence. Thus, even if there was no negli- gence or intent on your part, the law holds you liable without regard to fault. If you owned a site from which a release is threatened or you gener- ated or transported waste to that site, you may be jointly liable along with all other parties for all costs of cleanup. Under current court decisions, the government need not prove that the waste you sent caused the release, only that somebody’s hazardous substance was, or threatens to be, released. The government could, if it desired, sue and collect the entire judgment from only one or a few parties. Typically, the government sues some but not all parties based on the volume and toxicity of the wastes those PRPs sent to the site. It is then up to the defendants in the suit to discover other parties and bring them into the action. Does Superfund allow you to sue other PRPs for ‘‘contribution’’ of cleanup costs? Yes. Superfund did not originally address contribution, but SARA ex- pressly allows you to seek contribution from any other person who is liable or potentially liable under Section 107. To resolve contribution claims, the court may allocate response costs among the parties by using equitable fac- tors. If you have resolved your liability in a settlement with a federal or state government agency (see settlement discussion in Part II, Section 1), you re- ceive contribution protection. This means you will not be liable to nonset- tlers for costs regarding matters the settlement addresses. To preserve your rights against nonsettlers, you may want to file a contribution action against other PRPs before settling. What about liability for personal injury? Superfund does not impose liability for damages — such as medical costs or property damage — to injured private parties. However, states may im- pose additional liabilities connected with the release of hazardous sub- stances. Thus, as a PRP for a Superfund site, you might well be subject to suit under not only Superfund for cleanup costs, but also under state laws for personal injury and property damage. Although SARA did not amend CERCLA to impose liability on PRPs for personal injury, it has made it easier for citizens to bring personal injury suits against PRPs for two reasons. First, the information ATSDR will now generate, such as health assessments and health effects studies, may be use- ful to plaintiffs. Second, SARA has increased the amount of time an indi- vidual has to bring an action in state court for personal injury or property damage caused or contributed to by exposure to a hazardous substance. The federally required commencement date is the date the plaintiff knew that the personal injury or property damages were caused or contributed to by the hazardous substance. Under SARA, if a state statute of limitations has a 29 commencement date earlier than the federal date, the federal date shall ap- ply. SARA’s state statute of limitation provision applies to actions brought after December 11, 1980. Does Superfund itself provide any viable defenses against liability? Even if you fit the definition of responsible party under Superfund, you are not held liable if you can establish that a release or threat of release and its consequences are due solely to an act of God, an act of war, a result of the actions of a third party, or any combination of these three. These de- fenses have been narrowly construed by courts and are difficult to assert with success. What is the innocent landowner defense? New SARA provisions allow release from liability under a so-called ‘‘in- nocent landowner’’ defense. This defense shields you from liability for re- leases from property you acquired after a hazardous substance came to be located at the facility. The defense applies if you exercised due care with re- spect to the hazardous substance, you took precautions against foreseeable acts or omissions of third parties, and you can establish at least one of the following: ¢ You acquired the facility without knowing that any hazardous substance was disposed of at the facility. ¢ You are a government entity that acquired the facility involuntarily, or through eminent domain. ¢ You inherited the facility. For you to establish you had no reason to know of the hazardous substance at the time of acquisition, you must have made appropriate inquiry into the property’s previous ownership and use. A successful innocent landowner defense will be difficult, because you must prove that you made such an in- quiry without discovering the hazardous substance. The innocent landowner defense does not apply if you caused or contrib- uted to the release of a hazardous substance from your facility. In addition, you cannot claim the defense if you knew of a release when you owned the property, and then transferred ownership without telling the new owner. (For more information on property transfer issues, see Part II, Section 4.) What is the statute of limitations for recovery of response costs? Superfund did not initially have statutes of limitations for cost recovery actions. SARA has added statutes of limitations for the government to re- cover costs from you. An initial action for cost recovery must begin: ¢ for a removal action, within 3 years after the action is completed; and © for a remedial action, within 6 years after initiation of physical on-site construction of the action. 30 A subsequent action for further response costs may be maintained any time during the response action, but must be commenced no later than 3 years after the completion of all response actions. What is the statute of limitations for contribution? Under SARA, a court action for contribution for response costs or dam- ages cannot begin more than 3 years after: ¢ the date of judgment in any action under Superfund for recovery of such costs or damages; or ¢ the date of an administrative order relating to de minimis settlements or cost recovery settlements (see discussion in Part II, Section 1), or the entry of a judicially approved settlement with respect to such costs or damages. What is the ‘‘good Samaritan’’ provision? Originally, under Superfund, if you provided assistance consistent with the NCP, or at the direction of an On-Scene Coordinator under the NCP, you were not liable for damages resulting from your efforts — unless your con- duct was found to be gross negligence or intentional misconduct. SARA has amended the good Samaritan provision so that you can be liable for ordi- nary negligence. In addition, SARA expands the good Samaritan provision to protect states and local governments unless their conduct is found to be gross negligence or intentional misconduct. What was post-closure liability? Under the original Superfund law, post-closure liability was a mechanism whereby certain hazardous waste disposal facilities permitted under RCRA could transfer their liability under CERCLA and other laws to a Post- Closure Liability Trust Fund. However, this mechanism was never imple- mented, and SARA repealed it. Natural Resource Damage Assessments What are the natural resource damage rules? These rules authorize federal and state natural resource ‘‘trustees’’ for public lands to determine monetary damages due from injury, destruction, or loss of natural resources. The damage assessment, including the cost of assessing the injury, is levied against the party responsible for injury to the resource. Under CERCLA, natural resources are defined as land, terrestrial and aquatic biota, air, water, groundwater, drinking water supplies, and other such resources controlled by the federal, or any state, local, or foreign government, or any Indian tribe. Two different rules for assessing natural resource damage have been issued under CERCLA. Type A assessments are a simplified assessment procedure involving only coastal areas, whereas Type B assessments are more complex 31 and involve inland areas. Under a rule published in August 1986 (43 CFR Part 11), Type B assessments involve field work to identify injury to natural resources and assess a specific monetary value, or ‘“‘damage.’’ For example, the state of Colorado has brought 10 separate natural resource damage suits against mining companies for continuing releases. Type A final rules are an- ticipated in February 1987; draft rules were proposed in May 1986 (51 Fed- eral Register 16,636). Not one Type A assessment has yet been done. Under anticipated Type A rules, a natural resource ‘‘trustee’’ will use a formula to assess damage, and prepare a standard and simplified ‘‘cookbook’’ assess- ment. No field work will be required. For example, in the event of an oil spill, the ‘‘trustee’’ will compute ‘‘x’’ acres of wetlands, contaminated by “*y’? gallons of oil, equals ‘‘z’’ dollars in damages. Natural resource damage assessments are likely to be hotly contested and take years to implement. A biological survey may be part of an endangerment assessment to identify species and possible impacts on aquatic biota at a Superfund site. Are there any limits to liability for natural resource damage? Yes. Natural resource damages may be recovered only by federal or state governments or Indian tribes for damage to resources controlled by federal, state, or local governments or Indian tribes. There is no liability for the fol- lowing damages: e if they were identified as ‘‘an irreversible and irretrievable commitment of natural resources’’ in an environmental impact statement (or other comparable environmental analysis); e if the government authorized adverse environmental impacts; or ¢ if the facility/project was otherwise operating within the terms of its permit or license. There is no recovery for natural resource damages if they, and the release that caused the damage, occurred before the enactment of CERCLA in De- cember 1980. 32 What is the statute of limitations for natural resource damages? Under SARA, court actions for natural resource damages must begin within 3 years after the later of: ¢ the date of discovery of the loss and its connection with the release, or © the date on which the government promulgates regulations for the as- sessment of natural resource damages. However, for a facility on the NPL, a federal facility, or any facility or ves- sel at which a remedial action is scheduled, an action must begin within 3 years after the remedial action is completed (excluding operation and main- tenance). Actions after October 17, 1986, may not begin: ¢ prior to 60 days after the federal or state natural resource trustee gives the government and PRP notice of intent to file suit, or © before selection of the remedial action if the government is diligently proceeding with an RI/FS. Employee Protection Does Superfund provide for employee protection? Yes. The original Superfund law provided employees at facilities with pro- tection from retaliatory firing or discrimination. SARA has maintained that protection and provided workers at both RCRA and CERCLA hazardous waste facilities with new health and safety protection. (See Part II, Section 3.) An interim final rule was promulgated on December 19, 1986 (51 Fed- eral Register 45,654) under Section 6 of the Occupational Safety and Health Act (OSH Act) that includes the provisions in the box below. Employee Health and Safety Regulatory Requirements ° formal hazard analyses of the site and development of a site- specific plan for worker protection * training of general site workers, on-site managers and supervi- sors, and emergency response personnel ¢ regular medical surveillance of workers © appropriate personal protective equipment, clothing, and respirators © engineering controls and work practices ¢ maximum exposure limits ¢ informing workers of the nature and degree of toxic exposure likely as a result of hazardous waste operations * requirements for handling, transporting, labeling, and disposing of hazardous wastes © decontamination procedures © special provisions for emergency responders ¢ air monitoring to identify and quantify airborne contaminants 33 Part I, Section 2 SITE CHARACTERIZATION AND REMEDY SELECTION About this Section of the Handbook This section discusses the evolution of a Superfund site from the time it is identified until remediation is complete. In the late 1970s, EPA established a data base of sites characterized as ‘‘uncontrolled hazardous waste sites’’ and orphan sites. Following CERCLA’s authorization in 1980, potential Superfund sites were added. This data base was greatly expanded by the notification requirement under CERCLA § 103(c). EPA has an established protocol which it follows in evaluating these sites. National Contingency Plan What is the National Contingency Plan? The National Contingency Plan (NCP) sets forth procedures and stan- dards for the cleanup of hazardous waste sites. The NCP establishes the framework for the preliminary assessment, site investigation, the Hazard Ranking System, the National Priorities List (NPL), and requirements for remediation and removal. On September 16, 1985, EPA amended the NCP to provide additional criteria for listing sites on the NPL. Under 40 CFR § 300.66(b)(4), a site can now be included on the NPL if it meets one of three requirements: © The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Department of Health and Human Services has issued a health advisory recommending that people stay off the site. ¢ EPA determines that the site poses a significant threat to public health. ¢ EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the site. CERCLA restricts EPA’s authority to respond to certain sites by expressly excluding some substances from the definition of ‘‘release.’’ In addition, EPA may choose not to use CERCLA because other regulatory authority, such as RCRA, can be used to clean up these releases. However, if EPA later determines that sites not listed on the NPL under CERCLA are not being properly responded to, it may consider placing them on the NPL. Sites owned by the federal government now can be included on the NPL. What is EPA protocol for evaluating potential Superfund sites? EPA, using its contractors and funding assistance to state agencies, con- ducts preliminary assessments and site investigations as appropriate at each of these sites to evaluate them for placement on the NPL. Once on the NPL, a Remedial Investigation/Feasibility Study (RI/FS) is conducted to 34 determine the appropriate remedial alternatives and objectives. Next, a re- medial action is selected and cleanup begins. Preliminary Assessment/Site Investigation What is a preliminary assessment? The lead agency (generally EPA for hazardous releases) initiates a prelimi- nary assessment (PA) as the first step in the protocol. This study is often a quick analysis based on readily available information such as site manage- ment practices, information from generators, photographs, literature, and personnel interviews. If more information is needed, a site visit may be in- cluded. The goal of the preliminary assessment is to determine the urgency of the situation and to identify any non-federal parties ready, willing, and able to undertake proper response. If the release potentially requires a re- moval action, the PA is done as promptly as possible. If, during the preliminary assessment, an On-Scene Coordinator (OSC) determines a removal action is appropriate, that action may proceed concur- rently with consideration of the site for placement on the NPL. As part of the site investigation, drums are sampled to determine chemical contents. What is a site investigation? The information generated in a preliminary assessment very often is in- conclusive for purposes of evaluating the site for placement on the NPL. As a result, EPA will conduct an investigation of a site using contractors funded by a state. This site investigation (SI) may involve limited sampling to better assess the potential for release or threat of release. In addition, these sam- pling results will expand the data base to evaluate the appropriateness of placing a site on the NPL. Citizens can petition EPA to do a preliminary assessment of a site. If the PA indicates the site may pose a threat to human health or the environment, EPA will do HRS scoring of the site. 35 Where in this process is a site placed on the NPL? To be placed on the NPL, a site must either be given a Hazard Ranking System (HRS) score above 28.5 or be considered the highest priority prob- lem in a state. Data for listing (or not listing) a site is collected during the discovery and preliminary assessment/site inspection phases of the process. Hazard Ranking System What is the Hazard Ranking System? The HRS is a mathematical approach that attempts to objectively evaluate sources, pathways, and receptors to determine if a site should be placed on the NPL. The HRS evaluates five pathways: air, groundwater, surface wa- ter, fire and explosion, and direct contact. However, only the air, groundwa- ter, and surface water pathways compose the numerical score used to deter- mine placement on the NPL. The fire and explosion and direct contact scores may be used as a screening mechanism for needed removal actions. Previously, for a site to be placed on the NPL, the HRS score had to be greater than 28.5. With the revisions to the HRS required by the Superfund Amendments and Reauthorization Act (SARA), this number may be lowered to accommodate more sites on the NPL. EPA is required to change the HRS by April 17, 1988, taking into consid- eration specific risks including surface water contamination, air pollution, and damage to natural resources that may affect the human food chain. The revised HRS is to go into effect on October 17, 1988. A draft revision has been prepared and is now being reviewed by EPA. Sites put on the NPL be- fore the new HRS goes into effect would not have to be re-evaluated. National Priorities List How is a site placed on the NPL and what happens next? Placing a site on the NPL is a two-step process. Initially, the site must be proposed for inclusion on the NPL and time allowed for comment. Follow- ing the comment period, the site may be placed on the NPL, remain on the proposed list for additional review, or be removed from consideration based on information generated during the comment period. Once a site is proposed for the NPL, EPA is authorized to begin the re- medial planning process and can spend Superfund money. Activities may include RI/FSs and remedial design. EPA may not begin actual site remedia- tion using Hazardous Substances Superfund monies until the site has been placed on the NPL. However, Potentially Responsible Parties (PRPs) may enter into agreements with EPA to conduct the required remediation before a site is actually placed on the NPL. 36 LE Final and Proposed NPL Sites (952) January 1987 28 Ek Washington \ Gees Fk Montane if North \ Se ¥ 9 i Dakota \ G 6 2 i i 1 \ Minnesota Oregon : : pose ae os & tes, ee v 1 Je Nelle 2d Soe South \ \ Wisconsin Af oe, 1 fe ey 4 ; ; oss a ae ! Wyoming t Pe eee | cn pare? 1 Ee Bui, , I ! ey oat lowa K-07 ‘Nevada i a Nebraska ‘ 13 is i ' eee cee \ « 1 \ ° fat | Sa 5 ‘ ee \ | Utah I s Wee ae i Miinois | Indiana, 1 Mich- igan 69 =" \ Ohio Puerto Rico Abandoned drums of leaking waste may be cause to have a site placed on the NPL. Remedial Investigation/Feasibility Study What is an RI/FS? An RI/FS is a detailed investigation of a Superfund site. The Remedial Investigation is designed to provide the necessary data base to characterize the site. The data base is used during the Feasibility Study to screen and evaluate appropriate remedial alternatives. In conjunction with the site in- vestigation, remedial objectives are established so that remedial alternatives to meet those objectives may be evaluated. (See Part II, Section 2 for more detail.) Who conducts the RI/FS? A PRP may conduct the RI/FS if it meets certain requirements. For ex- ample, PRPs must agree to follow the government scope of work for the RI/FS at the site, although there may be limited negotiation on the scope of the plan. SARA provides for a 90-day moratorium after notice to PRPs and prior to the government starting the RI/FS. You, as a PRP, should quickly initiate discussions with the government if you wish to perform the RI/FS. If you do not take action, the RI/FS will be handled by the lead agency using Superfund money. The government will then sue some or all PRPs to re- cover the cost. If no responsible parties are found, Superfund bears the cost. Do PRPs and the public have the opportunity to comment on the selected remedy? Yes. Once the RI/FS is completed, EPA is required to conduct a commu- nity relations process allowing the public (including PRPs) to comment on the alternatives considered and the remedial action selected. This is a crucial time in the process of selecting a remedy because it is the administrative record that is established during and before this comment period upon 38 which the agency must defend any subsequent decision. It is imperative that PRPs express their views during this comment period. Otherwise, an impor- tant opportunity may be lost. Subsequent proceedings and court actions may be based exclusively on what appears in the administrative record. Appropriate points of comment may include any and all of the criteria specified by the NCP for conduct of RI/FSs. Specifically, items such as cost-effectiveness and proper interpretation of technical data generated by the RI/FS are appropriate for comment. (See also Part II, Section 1.) One way the government may help the public comment on the alternatives considered and remedial action selected is by providing technical assistance grants. Under SARA, the government may make grants to any groups of individuals that might be affected by a release or threatened release at a fa- cility on the NPL. The grants may be used for technical assistance in inter- preting information about the nature of the hazard, RI/FS, Record of Deci- sion (ROD), remedial action, operation and maintenance, or removal action at the facility. The maximum amount a single grant recipient may receive is $50,000, unless the government decides a greater amount is necessary. Once the comment period has closed, the agency will then — based on the RI/FS, comments received, and other applicable guidance and regulations — prepare an ROD. The ROD document will summarize the decision made and provide responses to comments received during the comment period. The ROD also becomes part of the record subject to review. What is the next step following the agency’s remedy selection? Once the ROD is signed by the appropriate decision-maker within EPA, the agency must notify the PRPs and allow them the opportunity to con- sider undertaking the remedial response. At that point, if you as a PRP choose to undertake the response, you would then enter into a consent de- cree to prepare the detailed design documents for the selected remedy and its subsequent implementation. Should the PRPs decide not to participate at this point, EPA would proceed using Superfund monies and later seek to recover these monies from the PRPs. This is a turning point for PRPs; it is your final opportunity to enter the process and conduct the remedial pro- gram. Only in rare instances has the agency allowed PRPs into the process after this point. Remediation What are the most common types of site remediation? Superfund site remediation has two major components: source control and residual contamination management. Source control alternatives are sig- nificantly limited by Superfund reauthorization. Prior to reauthorization, in-situ source containment was a fairly common remedy. However, SARA requires that EPA select permanent remedies using alternative treatment or resource recovery technologies to the maximum extent practicable. If any 39 hazardous substances exist at a site after cleanup, EPA must review the site every 5 years to ensure that human health and the environment are being protected. Source containment remedies under reauthorization, therefore, are highly unlikely without significant reduction of waste volume, toxicity, or mobility. The residual contamination management component of site remediation deals with those hazardous substances that have migrated from the source. These require further remediation to comply with legally applicable or rele- vant and appropriate requirements (ARARs) from all other federal environ- mental laws as well as more stringent state environmental or facility-siting laws. Relevant federal laws include the Clean Air Act, Resource Conserva- tion and Recovery Act, Safe Drinking Water Act, Clean Water Act, Toxic Substances Control Act, and Marine Protection, Research and Sanctuaries Act. SARA specifically requires cleanups to meet Maximum Contaminant Level Goals (MCLGs) issued under the Safe Drinking Water Act and water quality criteria issued under the Clean Water Act. Alternate Concentration Limits (ACLs) for groundwater cleanup at Superfund sites may be approved by EPA only if certain conditions are met. However, state standards for groundwater cleanup may be more stringent. Groundwater requirements es- tablished under RCRA are used to determine the acceptability of ACLs. (See Part II, Section 3 or ERT’s RCRA Handbook for more details.) Source control and waste migration remedies must meet ARARs unless one or more of the following conditions for waiver can be established: © the remedial action is only one operable unit of the total cleanup that will attain the standard; © compliance with the standard will present a greater risk to health and the environment; © compliance is technically impracticable; © the state has not consistently applied a state standard; ¢ an equivalent standard will be reached through another approach; or © compliance will not provide a balance between protection of public health, welfare, and the environment and the availability of Superfund money to remediate other NPL sites. This waiver is not available to PRP cleanups. What are a state’s rights if it disagrees with EPA? A state may appeal in court EPA’s waiver if it does not concur. A state may ask the court to require cleanup to meet an ARAR where cleanups are conducted by PRPs and at federally owned or operated facilities. If EPA chooses a remedial action involving land disposal for the Superfund waste, a statewide ban on land disposal of hazardous waste generally would not ap- ply. However, the land disposal ban could apply if (1) the ban is generally applicable and was formally adopted, (2) the state demonstrates that hydrogeology or other relevant considerations precluded land disposal op- 40 tions, and (3) the state will arrange and pay for the cost of out-of-state disposal. When does remedial design begin? Once a decision is made as to whether the PRPs will conduct the remedy or EPA will proceed using the Hazardous Substances Superfund, remedial design will follow. In the remedial design phase, all technical drawings, spec- ifications, and other supporting documents are prepared as the basis for bids for site remediation work. Also in this phase, remedial cost estimates are refined beyond those provided in the Feasibility Study phase. Does cleanup involve total site remediation? Not necessarily. Because of the nature of Superfund sites, it is usually possible to divide the site into operable units for purposes of remediation. For example, a remedy may involve a surface cleanup, partial surface cleanup, a drum removal, or similar discrete portions of a remedy. Typically, operable units will be limited to waste source remediation. Groundwater remediation usually requires a total remedy. Easily identifiable operable units should be segregated as early in the remedial planning process as possible. Post-Remedy Requirements Once a total remedial action is complete, are there any post-remedy requirements? In many cases, the answer is yes. Post-remedy requirements are dictated by the amount of hazardous substances remaining at the site after closure. The standards established for land disposal closures under RCRA also apply under Superfund. If hazardous substances remain at the site, post-closure groundwater monitoring is required. Only in those instances of a ‘‘clean clo- sure’? — where no hazardous substances remain at the site and no residual groundwater contamination is present — is it possible to avoid post-closure groundwater monitoring. RCRA post-closure requirements specify a mini- mum of 30 years of groundwater monitoring and may be extended at the discretion of EPA. Removals Under the NCP What are ‘‘removal actions’’? “Removal actions’ in the original Superfund legislation were a legal alter- native to ‘‘remedial action’’ for cleanup response. EPA has expanded the definition (Section 104) of ‘‘removal action.’’ Now part of the remedial pro- gram, removal actions are often your first response when a hazardous waste site is discovered. EPA encourages you to perform removal actions to pre- vent releases or potential releases. This would include repairs to a dike or 41 measures to extend an impoundment wall to prevent overflow. However, re- moval actions can occur during any step of the process, from initial listing through the preliminary investigation, or even during site remediation (al- though this is rare). You have the latitude to respond with a removal action to stabilize a site anytime there is a release or the threat of a release. Re- moval actions cover emergencies and accidental releases during transport or at operating facilities as well as releases at abandoned sites. Removal of contaminated wastes for ultimate disposal. What about ‘‘planned removals’’? Initially, under Superfund there were great discrepancies between removal actions and remedial actions (more permanent, long-term remedies). As a result, EPA developed the concept of ‘‘planned’’ removals, designed to be more extensive than a removal (emergency action) and less extensive than a remedial action requiring several years of advance planning prior to actual implementation of the remedy. EPA has moved away from the planned re- moval concept by simply expanding the definition of removal actions and allowing operable units in the remedial program. An operable unit is a dis- crete response measure, consistent with the permanent remedy, but not the permanent remedy itself. The action taken is only part of the total remedial action that will attain EPA’s cleanup standard when completed. EPA must approve operable units before you can proceed. (See Glossary for more on operable units.) Does removal action involve just the removal of contaminants from the site? No. Removal action is far broader. It may include actual removal, but it can also include an array of other activities, if necessary, to protect human health and the environment from potential damage associated with a release or the threat of a release. Removal action can encompass such activities as monitoring, site evaluation, temporary evacuation of threatened populations, _ and emergency assistance. 42 What are the limits on removal actions? Removal actions may be taken in response to any release or substantial threat of release of any hazardous substance or any pollutant or contami- nant which may present an imminent and substantial danger to public health and welfare. Removal actions do not require cost-sharing by the states. The original Superfund statute imposed a limit of $1 million or 6 months from the date of initial response to the release. SARA has increased these limits to $2 million or 12 months from the initial response action. Un- der certain conditions, these limitations may not apply. For instance, the monetary limits do not apply to activities undertaken and financed by PRPs. 43 Part II, Section 1 Managing Your Response to Superfund EPA’S ENFORCEMENT AND SETTLEMENT POLICY About this Section of the Handbook This section addresses key legal issues you should consider in responding to Superfund. The focus of this section is on EPA’s evolving enforcement and settlement policies, and the effect SARA is likely to have on them. Enforcement Provisions How important is the use of EPA’s enforcement and settlement authority to the success of the Superfund program? During Superfund’s first 5 years, EPA obtained approximately $600 mil- lion worth of private party cleanups agreed to through the use of its settle- ment policy. Since 1981, Potentially Responsible Parties (PRPs) have agreed to conduct remedial action at 372 sites. The government has filed suit seek- ing to recover $172 million in response costs. EPA and the Justice Depart- ment have filed approximately 200 enforcement actions seeking cleanup and response costs. Because the Superfund statute was new and subject to judi- cial interpretation, many PRPs chose to litigate rather than settle cases. However, the government has been extremely successful in establishing legal precedent which, in large part, upheld EPA’s policies and interpretations. The courts generally upheld the government’s theories on strict, joint, and several liability; the retroactive application of CERCLA; the lack of pre- enforcement review; the types of costs which are recoverable as response costs; and many more legal theories. Many of the ‘‘new’’ provisions of the Superfund Amendments and Reauthorization Act (SARA) are nothing more than codification of EPA policy and court decisions upholding EPA’s legal theories. With the law more settled in the government’s favor, PRPs are looking for ways to settle cases without incurring the enormous transaction costs that litigation can entail. The government also wants to settle cases. Even with court decisions on its side, and its staff increasing, EPA cannot take each Superfund case to court. EPA will continue to follow a policy which is best summarized as: ¢ Negotiate settlements whenever possible. e Litigate whenever necessary. What was EPA’s early Superfund enforcement policy? In the early days of the program, many court cases were brought seeking to force parties to clean up sites. These cases, while generally resulting in good settlements for EPA, required substantial resource commitments, took several years to move through the courts, and required the government to 44 prove that an imminent and substantial endangerment existed at a site. As the cleanup program began to get organized, program managers preferred to spend money on cleanup rather than wait for court cases. Public pressure to produce results and the easier burden of proof in cost recovery cases un- der Section 107 pushed EPA away from using court actions for cleanups. Since 1984 there have been very few major cases filed primarily seeking in- junctive relief under Section 106 to force cleanup. Since 1984, EPA has increasingly used Section 106 administrative orders as its primary enforcement tool. An administrative order is quicker to issue than a court case and is not subject to challenge in court. It is unlikely that EPA intended to enforce 106 orders in lawsuits. Instead, EPA probably planned to use them to set up a claim for treble damages under Section 107 or as a means of obtaining settlements. If parties wanted to settle, they could do so without going to court. If they did not settle, EPA could spend the money on a cleanup and seek treble damages. EPA’s use of administrative orders had some drawbacks. First, since it is not filed in court, there was no way to resolve a dispute. The government would not submit to arbitration and successfully opposed attempts to take disputes about administrative orders to court. Thus, a dispute led to an im- passe. Second, EPA attempted to require PRPs to admit that site conditions constituted an imminent and substantial endangerment and to make other admissions that could affect them adversely in litigation by private parties. Third, there was no effective way to involve the public, although EPA’s community relations policy attempted to do so. Nevertheless, the adminis- trative order became the main vehicle for embodying cleanup agreements. Has SARA changed the enforcement provisions of Superfund? Not really. The basic enforcement provisions in Sections 106 and 107 have not changed very much. The government may still seek injunctive relief un- der Section 106 for an imminent and substantial endangerment and may also seek cost recovery under Section 107. SARA retains the four requirements for government action under Section 107: ¢ release or threat of release into the environment ¢ of a hazardous substance (it need not be the hazardous substance related to the person) ¢ from a facility © causing the government to incur response costs. In addition to other response costs, SARA allows the government to recover the cost of Agency for Toxic Substances and Disease Registry (ATSDR) health assessments, health effects studies, and prejudgment interest. A re- cent court decision, U.S. v. NEPACCO, 579 F. Supp. 823 (W.D. Mo. 1984), held that the government could recover for the salaries of its attorneys and other personnel as well as pure cleanup costs. 45 Will SARA result in more enforcement? Yes and no. It is unlikely that the government will increase its use of in- junctive court actions under Section 106. However, as more RI/FSs and re- medial designs are completed, EPA anticipates it will use court actions to seek remedial action: Even the $8.5 billion in Superfund will not pay for all sites to be cleaned up. SARA will probably result in more cost recovery liti- gation under Section 107 because the expense of meeting the cleanup stan- dards in Section 121 may justify challenging EPA’s selection of remedy. PRPs face two major unknowns in EPA’s enforcement philosophy: how seri- ous EPA will be in suing recalcitrants to encourage them to join settlement groups; and how many major cost recovery cases EPA will bring. The key increase in enforcement will be in prelitigation settlement of cases under the new settlement provisions of CERCLA § 122. What sites are currently targeted for enforcement or cleanup? To discover EPA’s plans for a particular NPL site, you should consult the agency’s Superfund Comprehensive Accomplishments Plan (see Glossary) which is maintained by EPA in its regional and headquarters offices. EPA and the Justice Department have filed about 200 enforcement actions seeking cleanup and response costs for Superfund sites. How does the government choose target defendants for litigation? EPA generally attempts to sue the owner/operators, major transporters, and major generators. EPA has refused to sue all parties at sites, contending that it need not do so under joint and several liability and that it is difficult to sue large numbers of parties. Increasingly, the PRPs are joining third- party defendants to try to get as many PRPs as possible involved in settlements. 46 The government has stated that it intends to begin suing recalcitrant par- ties who refuse to participate in settlements. However, to date EPA has fol- lowed through on its threat at only a few sites. This failure is one that dis- courages small parties and recalcitrants from participating in settlements and is frustrating to PRPs who voluntarily settle at most sites. What is EPA’s position on PRPs going to court to dispute EPA’s selection of a remedy (judicial review)? EPA has been successful in convincing courts that Superfund did not au- thorize a court to review government cleanup decisions before the govern- ment brought suit to enforce them. Courts held that parties could raise chal- lenges to EPA action after-the-fact in a cost recovery action. Thus, PRPs were forced to choose between letting EPA clean up sites and sue the PRPs for costs, or the PRPs agreeing to a cleanup the PRPs felt was too expen- sive and not required to protect public health and the environment. More- over, the government was also successful in limiting judicial review of its cleanup decisions to an administrative record that it creates. The government argued that its action should be upheld unless it was ‘‘arbitrary and capri- cious’’ or not otherwise in accordance with the law (standard of judicial re- view). What this means is that EPA’s decision need not be the best one, but only one which is supported by a record and has some rational basis. In short, it is very difficult for PRPs to successfully challenge cleanup decisions. SARA appears to have codified these court decisions. Thus, PRPs need to place increased emphasis on participating in the development of the adminis- trative record since courts may base their review of cleanup decisions on that record. Can PRPs ever get money back if they obey a cleanup order but believe they are not liable? Yes. A new provision in Section 106 allows a PRP to get money spent on cleanup back in either of two circumstances: © where the PRP can prove it is not liable under Section 107 (i.e., not a generator, transporter, owner, or operator); or ¢ where the PRP who is the liable party under Section 107(a) can prove that the cleanup decision was arbitrary and capricious or not in accord- ance with the law. Administrative Record What is the administrative record and why is it so important? EPA uses the administrative record as the basis of decision in two situa- tions: (1) when conducting an administrative hearing, and (2) when taking or ordering response action. The record for the administrative hearing will be used to determine whether you have violated Superfund or Title III. The record applicable to the response action is used to select a remedial action 47 for your facility. Therefore, your participation in developing the record in either situation is crucial. A court may decide to uphold the administrative imposition of a penalty on you by looking only at the record. SARA ap- pears to require a court to look only at the record to determine whether EPA’s selected response actions are rational. By helping to develop the record, you strengthen your position to challenge an adverse decision. If you do not contribute to the record, a court may not consider your evidence or arguments when it reviews EPA’s decision. How can you help develop the record for decisions about response action? At the first sign of interest in your facility, you should immediately be- come involved in developing the record relating to response action decisions. You should use every opportunity you have to develop a record that is favor- able to you. Continuously monitor and add to the record any information that helps you. Obtain all the favorable evidence you can from EPA, and be sure it becomes part of the record. Sometimes you may have to use the Free- dom of Information Act to obtain information from the government. Be sure to document in writing all favorable communications you have with EPA, state and local government officials, health professionals, and the pub- lic. In addition to your evidence and arguments, be sure the record includes your objections to the government’s evidence and arguments. You can add to the record by writing to EPA; be sure that the informa- tion you submit is in an understandable form. Your technical consultant and attorney are able to assist you in proper wording and submitting information in proper technical and legal form. SARA directs EPA to provide guidance and regulations to help interested parties create the record. (See box.) Developing the Record for Remedial Action* ¢ notice to PRPs and the public, accompanied by analysis of the plan and alternative plans considered © opportunity to comment and provide information about the plan © opportunity for a public meeting © response to significant comments and data submitted © statement of the basis and purpose of the selected action *Minimum requirements under SARA. You should try to comment on preliminary assessment/site investigations, National Priorities List (NPL) proposals, and RI/FSs. If EPA does not re- spond to your comments, document the failure because it may be the basis for a later challenge. 48 As EPA develops the record, monitor it for possible bias and prejudg- ment, especially during site listing and remedy selection. Look for govern- ment failure to document contacts with outside interested parties. Remem- ber, EPA is often under pressure to tell the public what it will do, and this pressure to make a decision may cause EPA to overlook necessary steps in the decision-making process. Citizen Suits Can individuals bring citizen suits under Superfund? Yes. SARA has added a provision (Section 310) to Superfund that allows for citizen suits. Any person may bring a civil action: © against any person (including any governmental agency, to the extent permitted by the eleventh amendment) who is allegedly in violation of a requirement or order that has become effective pursuant to Superfund; and © against the government officials who have allegedly failed to perform a nondiscretionary act or duty under Superfund (except for any act or duty under Section 311, relating to research, development, and demonstration). To bring the first type of action, a person must give notice of the violation to the President, the state in which the alleged violation occurs, and any al- leged violator. To bring the second type of action, a person must give notice to EPA or other involved government agency that the person will commence the action. Neither action can be started until 60 days after the notice is given. In addition, a person cannot bring the first type of action if the gov- ernment has begun and is diligently prosecuting an action under Superfund or RCRA to require compliance with the requirement or order. The relief the court can give in the first type of citizen suit is to enforce the requirement or order, to order action necessary to correct the violation, and to impose any civil penalty provided for the violation. For the second type of suit, the court can order the official to perform the act or duty. For both types of suits the court has discretion to award costs of litigation (in- cluding reasonable attorney and expert witness fees) to the prevailing party. For citizen suits, SARA allows judicial review of challenges to removal or remedial action alleging that the action was in violation of any of Super- fund’s requirements. The citizen suit provision allows judicial review of dis- tinct and separate stages of cleanup. A citizen suit, though, may not be brought for review of a removal if a subsequent or related remedial action will be taken. 49 Settlement Provisions What are Superfund’s new settlement provisions? Section 122 of SARA has added new settlement provisions to Superfund that are expected to expedite settlements in the public interest and to mini- mize litigation. If the government decides not to use the settlement proce- dures, it must notify the PRPs in writing, and explain to them why not. If EPA determines that a period of negotiation would speed an agreement with PRPs to take response action and would expedite remedial action, EPA can call a moratorium on response actions. PRPs will be notified of the moratorium so that they have an opportunity to propose a settlement (Sec- tion 122(e)). According to the special notice procedures, when EPA notifies the PRPs of a moratorium it must give them the following information, when available: © the names and addresses of PRPs, ¢ the volume and nature of substances contributed by each PRP, and e aranking of substances by volume at the facility. If a PRP requests the above information before EPA notifies the PRPs, the information will be provided. EPA’s failure to provide this information routinely has been a serious point of controversy between the government and PRPs since the program began. This new settlement authority is basically a congressional ratification of existing EPA policy and procedure. The provision also strikes a balance be- tween EPA’s formidable enforcement authority and a flexible approach to settlement. EPA can exercise its authority to settle cases with willing PRPs or to conduct enforcement litigation against recalcitrants. The degree to which EPA shows creativity and flexibility may well determine whether the program succeeds or is stalled in a Superfund ‘‘grid lock.”’ What is the timetable for government action during negotiations? After EPA notifies you under the special notice procedures, you have 60 days to make a proposal to undertake or finance an RI/FS or response ac- tion. In negotiations about an RI/FS, the government may not start an RI/FS during the 60 days, but may begin other studies, such as those re- lated to remedial design. During the 60-day period, EPA may not order you to take response action under Section 106(a), or begin the response action itself under Section 104(a). However, in negotiations for either an RI/FS or response action, during the 60 days EPA may respond to a significant threat to public health or the environment. If you do not make a good faith proposal within the 60 days, EPA may begin the RI/FS, or take response action or order it to be taken. If you pro- pose an RI/FS, the government is barred from starting it for another 30 days. If you propose to perform or finance response action, the government is barred from acting for another 60 days. 50 What is a ‘‘good faith proposal’’? There is not yet enough experience to tell what EPA will consider a ‘‘good faith proposal’’ to undertake an RI/FS or remedial action. However, it seems likely that proposals that substantially follow the RI/FS guidance or address all remedial elements in a Record of Decision (ROD) would qualify. Clearly, something more than a ‘‘bare bones”’ proposal will be required. Is it really in the interest of a PRP to settle? There is no clearcut answer. Conventional wisdom says yes. The points most often cited in favor of settlement are: ¢ You can have greater input into the process. ¢ You have quality control. ¢ You can do the work less expensively than the government. ¢ You will avoid litigation and transaction costs. ¢ You create the opportunity for favorable public relations. NBARs and Mixed Funding Agreements What is a nonbinding preliminary allocation of responsibility? To expedite settlements and remedial action after an RI/FS, EPA may provide a nonbinding preliminary allocation of responsibility (NBAR) that allocates percentages of the total response cost among the PRPs. This NBAR is intended simply to promote settlement, and does not bind EPA in any subsequent negotiation or litigation against PRPs; in fact, it is not ad- missible evidence in any lawsuit. Under SARA, EPA will develop guidelines for preparing NBARs. In developing the NBAR guidelines EPA may include these factors: volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequi- ties and aggravating factors. EPA has subpoena power to collect information necessary to make a pre- liminary allocation. EPA believes it can expand this subpoena power to in- clude virtually all information it can obtain under CERCLA. PRPs should ask EPA to allow them to be present and participate in questioning potential witnesses to assist in obtaining information that will advance settlement. EPA’s costs of making the allocation will be reimbursed by the PRPs who accept a settlement offer. If PRPs do not accept, the costs will be response costs. If EPA provides an NBAR and rejects the PRPs’ offer providing for response, EPA must explain the reasons for the rejection in writing. EPA’s decision to reject the offer will not be subject to judicial review. Many PRPs and EPA are concerned that this section could cause havoc in settling some multiple-party PRP sites. EPA plans to use NBARs sparingly and usually only if requested by PRPs. 51 What is a mixed funding agreement? New settlement procedures under SARA allow the government to enter into mixed funding agreements (Section 122(b)). This is an important tool Congress gave EPA to lessen the sting of joint and several liability and allow settlement even where recalcitrants may exist. Under these agreements, EPA can reimburse parties for certain costs (with interest) of actions the parties have agreed to perform but EPA has agreed to finance. Mixed funding can be used if some of the PRPs cannot currently pay for response costs (for example, they cannot be found or they are insolvent), and other PRPs want to perform response action and then be reimbursed for the nonparticipating PRPs’ share. The government will try to recover the nonparticipating PRPs’ share through cost recovery action or other relevant means. Government officials have indicated that they will be cautious in using mixed funding. However, they acknowledge that mixed funding is appropri- ate at sites where there is a large ‘‘orphan’’ share (unidentified or insolvent parties), where some parties are solvent but recalcitrant, and where it may be appropriate for Superfund money to be used for some of the cleanup costs. A good example of the last case would be a municipal landfill where hazardous wastes were a small amount of the total waste in the landfill and cost of cleanup would disproportionately fall on a small number of persons. Once a mixed funding agreement is reached, the fund’s allocated share is fixed for future costs as well. The government’s policy is still evolving in this area. Parties should begin to seek ‘‘preauthorization’’ for mixed funding at an early stage of negotiations. De Minimis and Cost Recovery Settlements What is a de minimis settlement? EPA will be receptive to reaching a final settlement at an early date with a PRP if the PRP’s involvement at a site is considered ‘‘de minimis.’’ To do this, EPA must first determine that either: ¢ both the amount and the toxic or hazardous effects of the substances the PRP contributed are minimal in comparison to other hazardous substances at the facility (this raises a difficult question concerning toxicity); or © the PRP: - is the owner of the real property where the facility is located; -— did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; - did not contribute to the release or threat of release at the facility; and 52 - did not purchase the property with knowledge that it was used for the generation, transportation, storage, treatment, or disposal of any hazardous substances. A de minimis settlement may be entered as a consent decree or as an ad- ministrative order. If your total response costs exceed $500,000 (excluding interest), an administrative order may be issued only if the Attorney General gives prior written approval. The Attorney General has 30 days to approve the order, or it will be automatically approved unless the Attorney General and the EPA Administrator have agreed to an extension. A federal court may enforce the order. What are cost recovery settlements? Any department or agency with authority to undertake Superfund response action may settle a claim (Section 107) for the government’s re- sponse costs if the claim has not been referred to the Department of Justice. For a facility where the total response costs exceed $500,000 (excluding in- terest), the claim can be settled only if the Attorney General gives prior writ- ten approval. Arbitration may be used to settle claims if the total response costs do not exceed $500,000 (excluding interest). If you do not pay a claim settled in a cost recovery settlement, the government may sue you to recover the claim, costs, attorneys’ fees, and interest from the date of the settlement. The terms of the settlement will not be subject to judicial review. What are the procedures for de minimis settlements by administrative order and cost recovery settlements? At least 30 days before a de minimis settlement by administrative order or a cost recovery settlement may become final, the proposed settlement must be published in the Federal Register. The notice must identify the facility and the parties to the proposed settlement. For 30 days from the date of the Federal Register notice, outside parties will have an opportunity to file writ- ten comments about the proposed settlement. The head of the department or agency will consider the comments when deciding whether to consent to your proposed settlement. Your proposal may not be approved if the comments disclose facts or considerations that indicate the proposed settlement is inappropriate. Consent Decrees When must the government enter into a consent decree? The original Superfund did not have provisions on judicial consent de- crees, but SARA does. Under Section 122 of SARA, you can enter into either a consent decree or an administrative order on consent when an RI/FS or other study begins. The consent decree or order specifies your ob- ligations, which are enforceable in a federal district court. In a break from 53 current policy and practice, EPA stated in its ‘‘Implementation Strategy for Reauthorized Superfund: Short-Term Priorities for Action’’ (‘‘Implementa- tion Strategy’’) that a settlement agreement for an RI/FS does not have to contain a finding of imminent and substantial endangerment. Under SARA, EPA must enter into a consent decree when it reaches an agreement with you regarding remedial action. First, the Attorney General must approve the agreement; then a consent decree must be entered in fed- eral district court. A decree may not be considered an admission of liability and it does not have to be based on a finding of imminent and substantial endangerment to the public health or the environment. Outside parties must have an opportunity to comment on a proposed con- sent decree. The Attorney General will consider written comments, views, or allegations relating to the agreement, and file them with the court. The Attorney General may withdraw or withhold its consent to the agreement if the comments disclose facts or considerations indicating the agreement is inappropriate. Elements of Consent Decrees site history intentions of parties jurisdiction parties bound unequivocal obligation to do work schedules, timetables, site representatives force majeure stipulated penalties dispute resolution document retention and housekeeping details covenant not to sue work plan as attachment What is a covenant not to sue? A covenant not to sue is the vehicle EPA can use in a consent decree to grant a release from liability. Section 122 confirms EPA’s authority to give covenants not to sue to settling parties (codifying EPA’s Interim Settlement Policy). The covenant includes future liability resulting from a hazardous release addressed by on-site or off-site remedial action if: ¢ The covenant is in the public interest (see box). © The covenant would expedite response action consistent with the NCP. e You are in full compliance with a consent decree under Section 106 for response to the release or threatened release. © The government has approved the response action. 54 Public Interest Considerations for a Covenant ¢ effectiveness and reliability of the remedy, compared to other remedies ¢ risks remaining at the facility © extent to which performance standards are contained in the or- der or decree * extent to which the response action provides a complete remedy for the facility, including treatment of hazardous substances ¢ demonstrated effectiveness of technology used in the response action © whether the fund or other sources of funding would be avail- able for any additional remedial actions ¢ whether the PRPs will carry out the remedial action in whole or significant part Your covenant will not take effect until EPA certifies that your remedial action has met Superfund’s requirements. Covenants must include a “reopener’’ provision that allows you to be sued for future liability. The liability would be for a release or threatened release that occurs due to un- known conditions when EPA certified that the remedial action had been completed. In a significant break with past practice, EPA stated in its ‘‘Implementa- tion Strategy’’ that the reopener provision will not be tied to imminent and substantial endangerment. Exceptions to the reopener requirement include a special covenant not to sue or a de minimis settlement. A special covenant not to sue is a covenant EPA must grant (1) when a permanent remedy is undertaken by PRPs, or (2) if the PRPs have proposed an on-site remedy and EPA rejects that remedy in favor of off-site disposal of hazardous sub- stances. In extraordinary circumstances, a reopener provision may not be included if EPA determines that the terms of the settlement agreement will protect public health and the environment from future releases. In choosing not to include a reopener provision because of extraordinary circumstances, EPA will assess relevant factors such as: * public interest considerations (see box), © volume of waste, © toxicity and mobility of waste constituents, © strength of evidence, ability of PRP to pay remedial action costs, © litigative risks, © precedential value, and © inequities and aggravating factors. 55 What are the requirements for dispute resolution provisions in consent decrees? SARA specifies that consent decrees must require the parties to try to re- solve disputes about the implementation of remedial action informally with the appropriate federal and state agencies. If the parties agree, the consent decree may allow for administrative enforcement. What are the penalties for violating a consent decree? SARA requires that consent decrees contain stipulated penalties for viola- tions. The maximum stipulated penalty is $25,000 per day. Either the federal government or the state can enforce the penalties, and the penalties should not be construed to affect a court’s ability to order compliance with the terms of any decree. The ‘‘Implementation Strategy’’ claims that the stipu- lated penalties are in addition to the civil penalties under Section 109 for failure to comply with any condition of the decree. The civil penalties are identical to the civil penalties for a violation of Superfund’s spill reporting (Section 103(a)) or record retention requirements (Section 103(d)(2)). (See discussion of those penalties in Part I, Section 1.) Contribution Protection What is contribution protection? Under SARA, if you enter into a settlement in the form of either an ad- ministrative order or consent decree, you will not be liable for claims from nonsettlers (claims for contribution). To protect your right to contribution you may want to file an action for contribution against other PRPs before settling with the government. State’s Role What is a state’s role in settlements? The government will issue regulations specifying that the federal govern- ment must give states (1) notice of negotiations with PRPs about the scope of response action, (2) an opportunity to participate in the negotiations, and (3) an opportunity to be a party to the settlement in some circumstances. For remedial actions by settlement that do not attain an applicable or rele- vant and appropriate requirement (ARAR), EPA must allow the state to re- view the selected remedy at least 30 days before entering a consent decree. If the state concurs, it may sign the consent decree. If the state does not con- cur, it can intervene in the legal action before the decree is entered. If the court determines that your remedial action need not conform to an ARAR, and the state will pay the additional costs of meeting the ARAR, your reme- dial action will be modified to meet the standard. However, if the state es- tablishes on the administrative record that the government’s selection of re- medial action was not supported by substantial evidence, the action must be 56 modified to meet the ARAR. Thus, a settlement can be undone if a state contests it, creating the potential for expensive litigation even after the par- ties think they have settled. Natural Resource Damages What do SARA’s settlement provisions say about natural resource damages? If your hazardous release may have damaged natural resources under the federal government’s trusteeship, the federal natural resources trustee will be notified of the negotiations and encouraged to participate in them. A settle- ment may contain a covenant not to sue for damages to natural resources only if the federal trustee has agreed to the covenant in writing. The trustee may approve the covenant if you agree to take actions necessary to protect and restore the damaged natural resources. Although the settlement provi- sions require notification of only the federal trustee, state trustees are usu- ally on notice as well. 57 Part II, Section 2 KEY MANAGEMENT QUESTIONS About this Section of the Handbook This section addresses some of the key issues — political, financial, legal, and technical — you should consider in planning your response to a Superfund action. The approach is intentionally broad and general to give you a feel for the sweeping array and complexity of issues you must address. Your decisions will ultimately depend on your specific site, the agencies you are dealing with, and your own needs and business priorities. Policy Issues Should you be concerned about managing response to Superfund? You should be seriously concerned with CERCLA and its potential legal, financial, and political impacts on your company if you are, or may be, a Potentially Responsible Party (PRP) for: © a site listed on the NPL; © a site subject to Section 104 response actions; or ¢ a site posing serious potential for future listing on the NPL; for exam- ple, a closed facility you own(ed) or operated that now poses contami- nation problems, or a ‘‘problem’’ disposal site containing wastes from your present or past operations. Once a site for which you are considered responsible is listed on the Na- tional Priorities List (NPL), it will probably be subject to millions of dollars worth of remedial — and perhaps removal — actions. In 1985, EPA esti- mated that the average NPL site cost about $6 to $9 million to clean up. These remedial costs will substantially increase as a result of the 1986 Superfund Amendments and Reauthorization Act (SARA) requirements with their strong bias toward permanent remedies and the use of technological alternatives to land disposal. Cost increases will occur in the remedial plan- ning phase (for pilot studies of each alternate technology) as well as in ac- tual remediation cost. You, in turn, could be liable for these and other (e.g., litigation) costs, whether you or the government actually implements cleanup. When should your management decision-making begin? If you fit into any of the.categories mentioned above, you should already have a strategic response plan for Superfund, at least at the policy level. Much like a strategic business plan, this Superfund response plan should include cost/benefit analyses, ‘‘what if’’ scenarios, your potential liabilities and strategies, and other analytical data. The goal is to make early, well- informed, prudent decisions geared to limiting your potential liabilities 58 should you become embroiled in a Superfund action. You should remember that there are other potential consequences (e.g., Securities and Exchange Commission 10-K reporting requirements) of being listed on the NPL or be- ing involved in a cleanup. Should you consider self-auditing? Self-auditing — investigating your own properties for possible Superfund- related problems — is an especially useful strategy if you are concerned about a number of sites. Although it can entail a considerable financial in- vestment, the dividends (for example, avoiding the NPL by cleaning up a potential Superfund site) may far outweigh your initial investment. Some decision-makers conduct their own internal ranking of sites, set priorities, and take action as needed to remedy particularly problematic sites. These parties mirror EPA’s own process, but maintain full control — technically and financially. What factors outside your control will most influence your decision-making? Although you will have to make numerous strategic, legal, political, tech- nical, and economic decisions throughout your response process, all of your choices will ultimately depend on: © whether your site is on the NPL or under other government scrutiny; and ¢ whether you are the sole responsible party (e.g., sole owner and opera- tor of a manufacturing facility) or part of a multiple-contributor action (e.g., disposal site with wastes from varied sources). If your site is not yet on the NPL or under government scrutiny, should you independently investigate and remedy it, or should you risk enforcement action by the government? If your site is on the NPL or under government scrutiny, should you voluntarily implement cleanup yourself or let the gov- ernment do the work and sue you for reimbursement of costs? If you’re not the only responsible party, do you work with other PRPs as a group or go your own separate way? These are just a few of the difficult strategic choices you must make depending upon where you fall under the two cate- gories above. How much flexibility do you have in negotiating with regulatory agencies? Your negotiating latitude will depend on a number of factors, but two of the more significant are (1) the specific agency or agencies with which you are dealing, and (2) where you are in the entire CERCLA process. Sites that appear identical (similar problems, layouts, etc.) may be dealt with quite differently, for instance, depending upon the interests, history, and priorities of a particular local or state agency. If the agency itself is subject to local citizen pressure, regulators may feel a sense of urgency in remedying a site, to the extent of taking action immediately and suing PRPs later for cost re- 59 covery. Conversely, another local agency might be attuned to quite different signals. Local reaction to a hazardous waste disposal site which has tradi- tionally benefited a community economically might favor negotiation and cooperation with the owners in cleaning up the site. Your position within the Superfund system will also greatly influence the negotiating process. Obviously, you’re in a much stronger position with a non-NPL site than with a listed site. In the case of an NPL site, whether you are involved in a single- or multiple-party action will significantly affect your negotiating power. As the sole PRP in a Superfund action, you may be wholly liable for cleanup costs, but you also may be able to negotiate han- dling the cleanup yourself in a manner you consider cost-effective. In con- trast, as one of many PRPs, you share liability, but you also bear the bur- den of a potentially complex negotiating battle in which your voice may be lost. In short, as in most CERCLA-related issues, few generalities apply, ex- cept that the more you know about the specific agency or agencies you’re dealing with — including local history and politics — and the more you un- derstand the baseline data about your site, the better you can anticipate and prepare for key variables otherwise beyond your control. Non-NPL Sites What about a site not sufficiently hazardous to make the NPL? The long arm of CERCLA — and serious potential impacts on you — can extend beyond sites on the NPL. You can face serious financial liabili- ties under CERCLA even if your site is not likely to make the NPL, but poses risks of hazardous releases. While your site would not be subject to the most costly type of Superfund response — remedial action — it might well be subject to government-ordered removal action. And you could be legally liable for substantial cleanup and litigation costs, whether you or the government handles the cleanup. In addition to the threat of a government-ordered removal action, you should consider the following two important points. First, SARA charges EPA with revising the Hazard Ranking System (HRS), which may reduce the standard for placing a site on the NPL. And, by October 17, 1990, EPA must review all known (as of October 17, 1986), uncontrolled hazardous waste sites to determine if sufficient hazard exists to place those sites on the NPL. As a result, sites not previously ranked high enough for inclusion on the NPL may now be proposed for the NPL. Second, even if a site does not make the NPL, many states have established programs similar to the federal Superfund program and maintain a state ‘‘Superfund List.’’ These state programs often track closely the federal program. 60 Should you independently investigate/remedy a site if you’re not on the NPL? Having a site slated for the NPL should not necessarily take you by sur- prise. Frequently, actual nomination of sites for NPL listing is preceded by activity (political, regulatory) at the state level for as long as 2 years. If your site is a likely candidate but not yet on the NPL, you face a major policy decision: whether to investigate the site yourself (and perhaps take action to avoid listing). The alternative is to risk government action — and possible NPL status — later. Both strategies have advantages and disadvantages. (See box.) For example, if you independently remedy the site yourself, you may avoid the NPL — and substantially reduce your costs. If you do the work yourself, you may realize significant cost savings compared to what a government response action would cost you (not to mention the time and money associated with litigation should you dispute a government action). Beyond such cost savings, you would have the added advantage of control- ling what happens at the site technically. And you might avoid the adverse publicity a government action could bring. (You might well generate favor- able notice as a good corporate citizen by independent cleanup action.) If your site is proposed for the NPL, can you avoid listing without actually cleaning up the site? Perhaps, but you must take action before proposed NPL changes (includ- ing listing your site) become final. Once a final score has been calculated for a site, and it is listed on the NPL, EPA will not recalculate the score. If you have a site proposed for listing, you should follow these basic steps: © Obtain for review a copy of the HRS score sheet and documentation for your site (available from your regional EPA office). ¢ Familiarize yourself with EPA’s positions regarding the HRS model. Read the model instructions. e If you question the scoring for your site, focus your comments on fac- tual and judgmental issues in the rating of various factors (as opposed to questioning overall policy aspects of the HRS model’s use and design). ¢ Submit your comments to EPA. While such an effort can be successful, the odds of sufficiently lowering your site’s score are not especially favorable. What are your chances of having a site delisted from the NPL? Delisting, unless a cleanup is completed or deemed unnecessary, is im- probable, if not impossible, to achieve. EPA has stated that it will not recal- culate the HRS score once a final score is in for a site and the site is on the NPL. However, EPA may delete a proposed or final NPL site from the NPL if it determines that no further response is required to protect public health or the environment. A November 20, 1985, amendment to the NCP estab- 61 lishes criteria for deleting sites under Section 300.66(c)(7). Sites that have been deleted remain eligible for further fund-financed remedial actions if warranted by future conditions. On March 7, 1986, EPA deleted eight sites from the NPL. Pros and Cons of Implementing Cleanup Yourself Possible Benefits © Cost savings. Government studies indicate that the cost of pri- vately implemented cleanup is generally significantly lower — as little as one-third the cost of government cleanup. ¢ Time savings. Similarly, private cleanup can be done on a faster track (less red tape, etc.). If wastes are migrating, source con- trol can be implemented sooner, thereby mitigating damages. © Control. Those implementing cleanup have better control over front-end studies that determine costs and the actions to be taken, and also over follow-through. © Negotiating leverage. Active participation in the cleanup tends to broaden one’s negotiating powers and foster improved com- munication with government authorities. © Avoidance of adverse publicity. Those ‘‘voluntarily’’ handling cleanup may avoid adverse publicity associated with government enforcement action, and generate favorable reviews as good corporate citizens. © Avoidance of ‘‘toxic tort’’ liability. Generally, any ‘‘toxic tort’’ liability (e.g., personal injury) increases as cleanup is delayed. Possible Disadvantages © Unfair burden. Those willing to undertake cleanup in a multi- party case may bear more than their fair share of cleanup re- sponsibilities and costs. © Ongoing liability. The government may accept your cleanup offer, but not release you from liability (for example, for poten- tial groundwater contamination). NPL Sites What should you do if your site is listed on the NPL? If you are designated a PRP for a site on the NPL, you will receive for- mal notification and a deadline for submitting your reply. If you haven’t already, you may want to seek outside legal and consulting assistance to help you formulate a response or implement a predetermined strategy. If you are the only PRP (or among a few PRPs), you will have more control over events than if you are involved in a multiple-party situation. 62 Should you agree to implement cleanup yourself, or let the government clean up and sue you for reimbursement? Major advantages of handling cleanup, as already mentioned, may be: significant cost-savings; potential influence on remedy selection; control of the cleanup; time savings; avoidance of litigation; and avoidance of adverse publicity. By controlling the remedial response activities, the PRPs maintain an ongoing understanding of the progress and information flow of the Re- medial Investigation/Feasibility Study (RI/FS). As a result, the PRPs have the maximum opportunity to anticipate EPA decisions and respond effec- tively. Otherwise, the only opportunity PRPs may have is the brief period following completion of the Feasibility Study by the lead agency and prior to EPA’s final Record of Decision. Multiple-Party Situations What if you’re not the only responsible party? Obviously, your control over the whole decision-making process will be stronger if you need to weigh only your own needs and liabilities. In a multiple-contributor situation, your decision-making will be much more complex and time-consuming. Should you and other contributors negotiate as a group — with one another as well as with the government? When and how do you form a ‘‘generators’ committee’’ or a ‘“‘site committee’? How do you apportion responsibility — for example, by weight/volume or by tox- icity of the substances contributed by each party? : Whatever your strategies, remember the government’s goal for NPL sites: to move as quickly as possible with enforcement and cleanup — financed by PRPs, not by Superfund. In multiple-generator cases, this frequently trans- lates into the following: © The government notifies, pursues, and (if necessary) sues the most “obvious’’ PRPs — those most vulnerable legally and/or most solvent financially. ¢ Those PRPs must themselves then pursue other responsible parties. If you are likely to be designated a PRP, you will probably need three ne- gotiating strategies: for EPA, for other designated PRPs, and for other re- sponsible parties not named by the government. What is EPA’s role in multiple-contributor situations? EPA has named dozens, even hundreds, of PRPs in single Superfund cases. EPA has helped organize initial interactions among PRPs, but gener- ally the burden has been on the PRPs to organize themselves, including ap- portioning liabilities and cost for cleanup. When EPA decides to negotiate, SARA directs EPA to use special notice procedures (see Glossary) to provide PRPs with names and addresses of all others involved and the volume of pollutants contributed by each. In addition, EPA is authorized to prepare a 63 nonbinding preliminary allocation of responsibility (NBAR), a document used to determine each PRP’s share of responsibility for cleanup. (See Part II, Section 1.) Insurance Is it still difficult to get insurance against Superfund liabilities? For a variety of reasons, the insurance industry continues to be cautious about underwriting insurance policies that cover pollution-related incidents and liabilities. While it may still be possible to obtain coverage for ‘‘sudden and accidental’’ pollution occurrences under a Comprehensive General Lia- bility (CGL) policy, many companies are finding that this coverage is no longer available, that the coverage limit will be considerably reduced, or that the premium will be significantly increased. The same is true for Environ- mental Impairment Liability policies. These were used in the past to cover liabilities associated with gradual seepage and leaks. You should be aware that there are many lawsuits underway concerning whether policies written in the past provide coverage for Superfund and related liabilities. If you are concerned about liabilities under CERCLA, you should review your past and present insurance to determine the extent of your pollution liability cover- age. If your CGL policy has been renewed recently, you may find that there is an exception for all pollution liability, even sudden and accidental occur- rences. Obviously, whether or not you have coverage for pollution liability will affect the response strategy you adopt for CERCLA, and you should be certain about the extent of your coverage. Even if you have insurance cover- ing pollution liability, many CERCLA-related costs, such as government- mandated remediation of your own property, may not be indemnifiable. There are certain actions with respect to potential insurance coverage you can take: ¢ Consult your insurance manager to identify potential coverage during time of disposal and time of ‘‘releases.’’ ¢ Notify carriers at the earliest time possible of a claim or potential claim. Certainly a notice letter, being listed on the NPL, the filing of a suit, or receipt of an administrative order would be a reason to notify your carrier at once. Failure to give timely notice may invalidate your coverage. e Attempt to involve your carrier in negotiations regarding the RI/FS and remedy selection and implementation. If you admit liability or commit to expenditures without notifying your carrier, you endanger any cover- age you may have. 64 Government Inspections How do you respond to a government request for information? Before you respond to an EPA request for information, be sure it relates to one of the three categories of information SARA allows the government to obtain. (See also Part I, Section 1). EPA used the original Act’s provision for ‘‘information relating to’’ to send out very broad requests. In at least one case, United States v. Charles George Trucking Co., Inc. (624 F. Supp. 1185 (D. Mass. 1986)), a court ruled that individuals did not have to respond to EPA information requests that were broader than the requests Superfund and RCRA allowed. You should be aware that the government has made some requests in the form of interrogatories typically used for a civil, judicial action. The govern- ment has also requested interviews with employees and sought to have the employees’ responses made under oath and notarized. If you receive either type of request, you might consider a challenge on the grounds that Superfund does not specifically authorize such requests. What can you do during and after an inspection to protect your interests? EPA is likely to try to limit review of all of its actions to the administra- tive record (see Part II, Section 1). You can help develop the record by not- ing your objections to government action during every step of the cleanup process. It is important for you to pay attention to government action as soon as possible. In the first years of Superfund litigation, PRPs frequently made the mistake of failing to get involved with early work at sites and ne- glecting to challenge it when it was done improperly. You should not make the same mistake. One way for you to monitor government action is to accompany those who inspect your land and observe what they do. Be sure the inspectors fol- low appropriate procedures. For example, if they take samples be sure they follow proper sampling techniques, field quality assurance/quality control (QA/QC), and chain-of-custody procedures. You should let EPA know when its employees or agents have not followed appropriate procedures. Under CERCLA/SARA, government employees are supposed to give you receipts describing the samples they take. Be sure you get the receipts. Gov- ernment employees are also supposed to give you a split sample if you re- quest it. You should always request and analyze a split sample because re- sults may help you challenge or later refute agency action. If the government analyzes the sample, it should send you a copy of the analysis, but your re- quest will ensure you get it. The analysis is another piece of evidence you may be able to use to challenge agency action. When can you withhold information from the government because it is confidential? EPA cannot obtain from you information that the attorney-client privilege and the work-product doctrine protect as confidential. Sampling and analy- 65 sis, though, are not protected and therefore must be disclosed to EPA. Gen- erally speaking, factual data cannot be protected. What can you do to ensure that information the government obtains from you will not be disclosed to the public? Under CERCLA/SARA, any information the government obtains will be available to the public, unless you can show that the information is confidential. When you submit information you believe is confidential to the govern- ment, you should label the information confidential and tell the government you are asserting a confidentiality claim. You should make your claim of confidentiality in accordance with EPA’s general procedures governing the submission of confidential information (40 CFR Part 2). Information Not Entitled to Trade Secret Protection © the trade name, common name, or generic class or category of the hazardous substance ¢ the physical properties of the substance including its boiling point, melting point, flash point, specific gravity, vapor den- sity, solubility in water, and vapor pressure at 20 degrees Celsius © the hazards to health and the environment posed by the sub- stance, including physical hazards (such as explosion) and potential acute and chronic health hazards © the potential routes of human exposure to the substance at the facility, establishment, place, or property being investigated, entered, or inspected ¢ the location of disposal of any waste stream © any monitoring data or analysis of monitoring data pertaining to disposal activities e any hydrogeologic or geologic data © any groundwater monitoring data Managing the RI/FS What impact does SARA have on the RI/FS and risk assessment procedure? SARA introduces some uncertainty as to the RI/FS process. Over recent years the trend has been for more formal and standardized RI/FS proce- dures and increasing reliance on hazard assessment using quantitative risk assessment. The clear preference in reauthorization is for on-site remedies utilizing alternate technologies (rather than land disposal). This is a strong signal that future government decisions may be technology-based rather than risk-based. This approach will push state-of-the-art technology for site 66 remediation and pilot studies for treatment and destruction of waste in the alternatives evaluation phase of the RI/FS. This may add to the cost and time necessary to complete the RI/FS process, but new technology may ulti- mately reduce cleanup costs for some sites. The challenge for the government — and the resulting complexity for you — is making the proper, cost-effective remedial decision. This means balanc- ing between the remedy that may be appropriate based on risk and a technology-based remedy that may be substantially more costly. The ability to predict potential migration of contaminants is a central fac- tor in quantitative risk assessment. Often the data base to support models and other predictive tools for this purpose is inadequate or nonexistent. The time and expense to gather sufficient data are often prohibitive. As a result, the methodology used for risk assessment will continue to be highly depen- dent on the specific site involved. What impact does SARA have on an ongoing RI/FS? EPA will review RI/FS work plans to determine if they meet the new stan- dards in SARA. A review of the remedial alternative development, screen- ing, and evaluation conducted as part of the FS will be required to ensure that the new standards in SARA are met. Who plans the RI/FS? A detailed work plan must be prepared and approved by the lead agency before work starts on an RI/FS. If a PRP gets involved in the Superfund process early on and indicates willingness to perform the RI/FS, then it will probably be given the opportunity to draft the work plan for agency review and approval. Otherwise, the agency, usually through one of its contractors, will write a work plan that the PRP will be given the option to carry out. While there is some room to negotiate on the work plans, a PRP is far bet- ter off to write the work plan draft for the agency to respond to than to be in the position of responding to the agency’s plan. What does the RI/FS work plan include? RI/FS work plans include four main parts: © the site management plan — a detailed description of the work to be done, * the quality assurance project plan — a description of the specific proce- dures to be followed in field data collection and laboratory analysis to assure quality data, ¢ the health and safety plan — a description of the protection measures and field procedures to be followed by workers at the site, and ¢ the community relations plan — the agency’s plan for informing the public of site activities and results. 67 PRPs, if they enter an agreement with EPA, may be given the option to write all documents except the community relations plan, health assessment, risk assessment, and ROD. These documents are always written by the agency. EPA has prepared a number of guidance documents and policy memo- randa describing the specific content and format for RI/FS plans. Although these documents are only guidance, agency officials usually apply them as if they were regulations. It is very difficult to secure agency approval for work plans that deviate significantly in content or form from the guidance. In a recent experience, an EPA region would not even review a submittal until it was reorganized according to the table of contents specified in the guidance document. Sampling the contents of a tank is one of the first steps in a site investigation. What are the steps in an RI/FS? Once work plans are approved, the RI/FS may begin. The RI, or Reme- dial Investigation, is the first part of the site remedial process. During the RI, basic information on the site and potential remedial actions is collected. This information will be required by the Feasibility Study to evaluate alter- native remedial actions. At most sites, the emphasis of the RI is on charac- terizing the nature and extent of contamination. The RI may also include bench and pilot testing of potential remedial technologies. A written report concludes the RI. The FS uses the data generated by the RI to evaluate alternative remedial actions. The FS typically starts after the RI is entirely or substantially com- pleted. The FS follows a structured process of: 68 ¢ first, identifying a list of potential remedial alternatives; * second, screening the alternatives for their ability to meet technical, public health, environmental, and cost-effectiveness requirements and eliminating inferior alternatives from further evaluation; and ¢ third, completing a detailed analysis of the screened alternatives with respect to the factors listed above. This process and its results are described in the FS report. An RI/FS typi- cally requires a year or more to complete and generally costs several hun- dred thousand dollars or more. A single NPL site may be the subject of multiple RI/FSs, each dealing with a different operable unit. What factors contribute to a successful RI/FS? A good RI/FS sets the stage for the cleanup decision and can often work to the PRP’s advantage. The PRP should keep his ultimate goal in mind — usually, this is to remediate the site in a way that is effective, economic, and best manages the PRP’s long-term liabilities at the site. To achieve this goal it is necessary right from the start that you and/or your consultant under- stand the key issues at your site (volume, toxicity, migration, etc.) and plan your RI/FS accordingly. Attention to the ultimate cleanup goals is important in planning as well as completing the RI/FS. A common error in planning the RI is failing to de- sign the RI to meet the needs of the FS. Technical personnel (including re- viewers from regulatory agencies) often view the RI as a scientific investiga- tion that is an end in itself. This is incorrect! The purpose of the RI is to collect the data needed in the FS to evaluate remedial alternatives. Avoid collecting spurious additional information, and don’t be afraid to ‘‘pull the trigger’’ on the RI and decide that enough data has been collected to pro- ceed with the FS. Too often, the investigation phase falls into the expensive spiral of continuing to collect ‘‘just a little more data.’’ Be sure that such data is truly required to make the remedial action decision. Continued focus on the key issues and collection of high-quality data related to those issues are of utmost importance to a useful RI. On the other hand, the RI can fail to develop enough of the right kinds of data. On many sites, it becomes apparent as the FS proceeds that the RI has collected a lot of data of little use, but missed other kinds of important in- formation that are needed. To avoid this outcome, try to anticipate your FS information requirements so that you collect targeted and high-quality data in the RI. It’s essential to be thinking about potential remedial alternatives from the very start of the RI planning process so that necessary data will be available to the FS. A good FS will lead to a site remedy that is economic and effective. Un- der the National Contingency Plan (NCP), the government must select a cost-effective, permanent remedy. The emphasis under Superfund has been on the effective rather than the cost side of this selection. The agency will 69 select the least-cost alternative of equally effective alternatives, rather than alternatives in which lesser effectiveness is compensated by reduced cost. This places a clear burden on the FS: if you wish to implement a lower-cost remedial alternative, you must demonstrate its effectiveness in the FS. You can best demonstrate effectiveness through convincing technical analyses and a public-health risk assessment. How are site remedial actions selected? Completed RI/FS reports are the basis for cleanup decisions by EPA. The RI/FS does not result in the decision per se. In fact, EPA-contracted RI/FSs do not even make a recommendation on cleanup. Rather, the Feasibility Study evaluates feasible alternative remedies on the basis of cost, engineer- ing praticality, and effectiveness. The RI/FS is then used by EPA to select the site remedy. These selections, which are made only by a government agency, are documented in a Record of Decision. A caution to the PRP completing an RI/FS is the importance of the ad- ministrative record under SARA. This record is key in the decision on a re- medial alternative and possibly in future litigation. Therefore, PRPs should pay substantial attention and take care to establish a favorable administra- tive record while completing the RI/FS. Parties should make formal com- ments at each stage of the process, from site listing to remedy selection. You should also comment on each aspect of EPA’s work performance at the site. Send your comments to EPA, documenting your points of disagreement. In all likelihood, you may require technical assistance to formulate the comments. How do EPA policies and guidance affect an RI/FS carried out by the PRP? As Superfund has evolved, there has been a trend to more rigid structure and formal procedure in the program. Many guidance documents and poli- cies now govern the RI/FS process. Conformance with these requirements is essential to expeditious agency acceptance of your RI and FS reports. The requirements for Feasibility Studies have been particularly tight. EPA policy documents require the specific inclusion of: alternatives meeting vari- ous levels of conformance with applicable and relevant environmental laws; alternatives with varying reliance on off-site disposal; and a no-action alter- native. The consistency of alternatives with the EPA Groundwater Protection Strategy must also be addressed. These requirements are often specified in internal EPA policy memoranda which are not readily known or available to PRPs. These policy requirements will be somewhat modified by SARA, but details are yet to be worked out by EPA. 70 Strict adherence to specific protocols is required for obtaining and preparing samples under Superfund. How should you respond when EPA conducts the RI/FS? It is important to stay aware and involved in the RI/FS even if you don’t conduct it. Keep track of site activities, obtain and read all RI/FS reports, attend all public meetings, and generally stay on top of the agency’s pro- gram. Moreover, if you disagree with procedures or conclusions, be sure your views are formally included in the administrative record. It is also worth considering conducting your own studies, as a supplement to the RI/FS. For example, the lead agency has been very willing at some sites to accept and seriously consider PRP studies and data on innovative technologies. Overseeing selected field activities, splitting samples, and other involvement in the RI/FS will allow you to make timely and accurate entries in the administrative record and put the lead agency on notice that your con- cerns and interests can’t be ignored. Cleanup Standards Did SARA significantly change the cleanup requirements to be considered in an RI/FS? Yes. Although SARA codifies much of prior EPA policy, there are several key changes. EPA will now prefer methods of treatment that permanently reduce the volume, toxicity, or mobility of hazardous substances, such as incineration. EPA’s least favored alternative will be off-site transport and disposal of hazardous substances without treatment. EPA may choose an unconventional method even though it may not have been proven in similar circumstances. EPA is required to choose a remedy that is adequate to pro- tect human health and the environment. In addition, EPA is required to consider: © the goals and requirements of RCRA; © the uncertainties of land disposal; the substances’ persistence, toxicity, mobility, and tendency to bioaccumulate; 71 ¢ the short- and long-term threats to human health; ¢ long-term maintenance costs; ¢ the potential for future cleanup costs if the remedy were to fail; and the potential threat to health and the environment associated with exca- vation, transportation, redisposal, or containment. These new cleanup standards do not apply to any cases settled before en- actment (October 17, 1986). In cases settled by November 17, 1986 (within 30 days after enactment), EPA must have certified that the settlements com- ply as much as practicable with the new requirements. These standards may have a substantial impact on parties involved in an RI/FS. Most certainly, the proper evaluation of all of these standards will greatly expand the RI/FS process. What is the impact of the SARA 5-year review provision? If any hazardous substances remain on site following remedial action, there is a requirement to review the site status at least every 5 years to as- sure continued protection of human health and the environment. This ex- tends the post-closure care requirements indefinitely, and will continue to test the viability of on-site remedial measures that do not destroy all hazard- ous substances. There is also a requirement that any actions that must be taken to further remediate the site be implemented, with a report to Con- gress describing the need for such action and its effectiveness. What triggers the review requirement? Currently, there is no guidance for triggering the review provision except that it applies on at least a 5-year frequency for sites at which any hazard- ous substances remain. There are, therefore, no de minimis exclusion provi- sions. Under this interpretation, the review requirement would apply even to sites where incineration had destroyed more than 99 percent of the hazard- ous substances. What are Superfund’s cleanup standards? Superfund did not initially contain cleanup standards. It simply provided general guidance for EPA, such as directing it to select remedial actions in accordance with the NCP that were cost-effective and balanced the need for protection of public health, welfare, and the environment against the avail- ability of money from the fund to respond to other sites. SARA has amended Section 104 to require that removal action (to the extent practicable) contribute to the efficient performance of long-term re- medial action. The new provision codifies EPA’s practice under the NCP of allowing response to be done on operable units, provided they are consistent with achieving a permanent remedy. Operable unit actions can be conducted as remedial or removal actions. In addition, SARA has amended Section 104 72 to require that remedial action be in accordance with Superfund’s new cleanup standards in Section 121. SARA explicitly addresses the issue of ‘‘how clean is clean’’ under Section 121. In particular, it provides that if a federal standard under another envi- ronmental law, or a state standard more stringent than a federal one, is a legally applicable or relevant and appropriate requirement (ARAR), the cleanup must meet that standard. SARA lists the following federal statutes that might contain applicable, or relevant and appropriate, standards: TSCA, Safe Drinking Water Act, CAA, CWA, Marine Protection, Research and Sanctuaries Act, and RCRA. Note that standards from any environ- mental statute, not just those listed, may be used as cleanup standards. Un- der the NCP, EPA has increasingly been using the standards of other envi- ronmental statutes, especially RCRA, as Superfund’s standards. Can EPA choose an on-site cleanup that does not comply with other environmental laws? Yes, in certain instances. EPA may choose an on-site cleanup method that does not meet an ARAR, only if one of the following conditions is met: ¢ the action is part of a larger one that will ultimately meet such require- ments (operable unit); ¢ compliance will threaten human health and the environment more than the alternatives; * compliance is technically impractical from an engineering perspective; ¢ the chosen method will achieve the same results; * a state has not applied its requirements consistently; or © a remedy would be so costly as to drain the fund of money needed to protect public health at other sites; this option applies only to fund- financed remedies and is not available for PRP-financed remedies. What are the water quality cleanup standards? Under Section 121, remedial actions must at least attain for groundwater and surface water the Maximum Contaminant Level Goals established under the Safe Drinking Water Act and water quality criteria under the Clean Wa- ter Act. In determining whether any water quality criterion under the Clean Water Act is relevant and appropriate, EPA must consider (1) the designated or potential use of the surface or groundwater, (2) the environmental media affected, (3) the purposes for which such criteria were developed, and (4) the latest information available. SARA also allows you to set Alternate Concentration Limits (ACLs) for groundwater quality when the ACLs are based on a point of human expo- sure within your facility’s boundary. ACLs can be established for a point of human exposure beyond the boundary only under certain conditions. (See Part II, Section 2.) 73 What is EPA’s off-site disposal policy? The off-site standards are straightforward but very stringent. Pollutants transported off site must be taken to a facility operating in compliance with RCRA and other applicable state and federal laws, including the Toxic Sub- stances Control Act (TSCA). More importantly, the individual unit (surface impoundment, cell, etc.) must not be releasing or leaking pollutants; in ad- dition, other regulated units at the same facility must be controlling all re- leases in accordance with RCRA. In summary, for a disposal facility to re- ceive material from a Superfund site, it must have at least one disposal unit with no releases occurring and other units must be in compliance and per- mitted under other applicable laws. This formally codifies an EPA policy that has been in effect for some time. Remedy Selection Can a state, through a statewide ban on land disposal, prohibit EPA from choosing an on-site land disposal remedy? Yes, but only if both of the following conditions are met: ¢ The state standard must be formally adopted and generally applied. ¢ The standard must have been adopted for hydrogeologic reasons and not to prevent on-site cleanups or other land disposal, and the state must guarantee payment of extra cost for an alternative remedy. What role will the states have in the selection of remedial actions? New federal regulations will provide for states’ involvement in the selec- tion of remedial actions taken within their borders. At a minimum, the regu- lations shall include the items listed in the box below. Does on-site remediation require a permit? No. SARA specifically provides that no state, federal, or local permit will be required for an on-site cleanup. Technical and Treatment Issues Is landfill disposal still an option? RCRA has limited planned removals under CERCLA for certain hazard- ous substances. Provisions of the Hazardous and Solid Waste Amendments of 1984 (HSWA) have severely restricted the disposal of hazardous wastes in landfills. Dioxins and solvents have been banned from landfills, but are sub- ject to a 2-year variance. EPA regulations (51 Federal Register 40,572 (Nov. 7, 1986)) allow landfilling of some wastes if they are first treated. ‘‘Califor- nia wastes’’ such as corrosive wastes, waste containing metals and cyanides, 74 and halogenated organics are not yet banned, and are likely to be subject to a variance. Banned, however, are the landfilling of bulk uncontained liquids, containerized liquids, and liquids absorbed in materials that biodegrade or release liquids when compressed. States’ Role in Selecting Remedial Actions ¢ state involvement in decisions whether to perform a preliminary assessment and site inspection * allocation of responsibility for HRS scoring © state concurrence in deleting sites from the NPL * state participation in the long-term planning process for all remedial sites within the state © a reasonable opportunity for states to review and comment on each of the following: - the RI/FS and all related data and technical documents - the planned remedial action identified in the RI/FS - the engineering design following selection of the final remedial action - other technical data and reports relating to implementation of the remedy - any proposed finding or decision by the government not to utilize an applicable or relevant and appropriate cleanup standard * notice to the state of negotiations with PRPs regarding the scope of any response action at a facility in the state and an opportunity to participate in such negotiations and, for some remedial actions secured under Section 106, be a party to a settlement © notice to the state and an opportunity to comment on the government’s proposed plan for remedial action as well as on alternative plans under consideration * prompt notice and explanation of each proposed action to the state New regulations that will further reduce the ability of landfills to receive material removed from Superfund sites will be enacted from 1986 to 1988. Therefore, you must at a minimum process wastes containing liquids prior to their removal. The definitive test for what is or is not liquid under the landfill ban is the rigorous ‘‘Paint Filter Test.’’ This test usually causes rain- affected contaminated soils to be classified as ‘‘liquid’’ wastes. 75 Further, the limitations on solidification of liquid wastes are intended to prevent the use of absorbing admix agents. These limitations also serve to require generators to use admix agents that will chemically react with the liquid component and convert it to a biologically stable, pressure-resistant solid. What technologies can achieve permanent remediation of Superfund sites? Remedial actions must to the extent possible provide a permanent remedy at the site. At sites where materials will be removed to a secure landfill, the materials will first need to be solidified or stabilized on site. This will re- quire on-site solidification/stabilization facilities. A number of proprietary systems for solidification and stabilization are available. The majority of these are inorganic polymer systems based upon cement technology. Many of the proprietary systems use cement kiln dust as a low-cost alternative to portland cement. Other proprietary systems employ various accelerating or retarding agents to enhance the cement characteristics of fly ash. One class of solidification systems uses sodium silicate to form a gel that retains with high efficiency a number of heavy metal contaminants within the gel. In general, these inorganic polymer solidification systems have a limited capac- ity to stabilize wastes containing a high percentage of organics. Therefore, the continued landfill disposal of such wastes will be severely restrained by HSWA. Permanent remediation of Superfund sites will be increasingly achieved by newly developed technologies that either remove the contaminant from the site or decompose the toxic or hazardous material into environmentally harmless and nontoxic constituents. What are the technologies for groundwater treatment? There is an ever-expanding array of treatment technologies applicable to contaminated groundwater. Traditional treatment techniques employ “‘pump-and-treat’’ systems: contaminated groundwater is removed from the aquifer by pumping from groundwater wells or trench drains, treated to re- move contaminants, and discharged to surface waters or sewers or reinjected back into the aquifer. Emerging technologies include a variety of in-situ treatment methods using biodegradation. Pump-and-treat systems frequently include commercial air stripping or activated carbon treatment systems. Air stripping is very effective in remov- ing common solvent contaminants, for example, trichloroethylene (TCE). Carbon absorption works well on many of the less volatile organic com- pounds, such as polynuclear aromatic hydrocarbons (PAH). Both technol- ogies are well established and readily available from commercial suppliers. 76 Air stripping is very effective in removing common solvent contaminants, such as trichloro- ethylene, and is the technol- ogy of choice for a wide range of volatile contaminants. Variations on air stripping and carbon technologies further broaden their range of application. In recent years, there have been several advances in air stripping technology, making the technology feasible for some compounds previously considered unstrippable due to low volatility. Air stripping instal- lations have also sometimes been limited by air emission regulations that control the amount of volatiles than can be discharged in the stripper ex- haust air. Carbon treatment of the exhaust or alternative air stripping tech- nologies, such as static stripping, usually achieve acceptable air emissions in these circumstances. Air stripping and carbon treatment are the technologies of choice for a wide range of contaminants. Nonetheless, there may be low-cost alternatives for a specific set of contaminants. For example, ultraviolet treatment of wood-treating wastewaters is an emerging technology with considerably lower costs than possible alternatives. At many sites, contaminated ground- water is perfectly acceptable as industrial process feedwater without treat- ment. These and other site-specific alternatives should always be considered. The newest technology alternatives are those based on in-situ biological treatment processes. These processes utilize indigenous or introduced micro- biological organisms to reduce contaminants to innocuous breakdown prod- 77 ucts. Often, an injection system is used to introduce nutrients, oxygen, seed organisms, or other feed streams into the groundwater to enhance the speed and efficiency of the biodegradation processes. Although these in-situ treat- ment processes are often considered new and unproven, they may be vastly less expensive than pump-and-treat options. Thus, it often pays to consider an investment in demonstrating these technologies in order to eventually use them at your site. What will be the preferred technologies for source (waste material) remediation under SARA? The preliminary EPA interpretation of SARA requirements is that inciner- ation becomes the preferred alternative. In view of the high cost of incinera- tion, however, alternatives such as bio-remediation appear to be acceptable alternatives for consideration. Conventional liquid incineration technologies typically do not apply to Superfund sites unless the primary waste source is containerized (i.e., in tanks, drums, etc.). Because the predominant waste form at Superfund sites is contaminated soils, rotary kiln incineration technology or in some cases moving grate infrared technology are the most practical alternatives. Several types of bio-remediation are feasible for Superfund site applica- tion. Depending upon site-specific conditions, liquid phase or solid phase biological degradation of organic constituents may be appropriate, either in-situ or in specially designed bio-reactors. Advanced technologies including various forms of chemical treatment and even electrochemical destruction of toxic contaminants are being developed for commercial application. What are the treatment technologies for contaminated soils? The thermal destruction technologies used to treat solid wastes are usually applicable to contaminated soils as well. But, these technologies require that soil be excavated, run through a treatment system, and then replaced. The volume of soils to be treated at a site is often too great to make this a prac- tical process. For these sites, in-situ treatment processes offer alternatives. There are a variety of in-situ soil treatment processes. Soils contaminated by acids or caustics may be treated by adding pH-adjusting materials. In other circumstances, when the geology is right, in-situ air stripping or soil venting techniques may be used to treat contaminated soils. Treatment by soil venting is appropriate for sandy soils when the contamination is in the unsaturated zone, above the water table. However, it is not useful for re- moving contaminants from clay-type soils. The application of extraction technologies to remove and concentrate contaminants from soils may be a feasible intermediate to reduce the cost of ultimate incineration. Heavy metal recovery in secondary smelters is also under consideration, pending resolution of potential RCRA barriers. 78 Organic waste at a Superfund site is removed from a surface impoundment for incineration. Which remedial actions are no longer applicable or favored under SARA? In-place closure will no longer exist as a remedial alternative except as a last resort. This form of on-site remediation is not considered technically feasible in reducing waste volume, toxicity, or mobility. On-site landfill in a RCRA designed vault, although not excluded from consideration, is not in favor under SARA, especially in view of the 5-year review provision. This alternative is technically still available, but must be scrutinized in view of potential future liability. 79 Part II, Section 3 CERCLA/RCRA INTERFACE About this Section of the Handbook The principal concern of CERCLA is cleanup of toxic releases at uncontrolled or abandoned hazardous waste sites. The triggering mechanism is the release itself. In contrast, RCRA aims at regulating the management of active hazardous waste treatment, storage, and disposal facilities in order to avoid new Superfund sites in the future. However, CERCLA and RCRA are fast becoming more closely aligned. This section traces the background, evolution, and confluence of CERCLA and RCRA. Background When the Resource Conservation and Recovery Act (RCRA) was origi- nally passed in 1976, it was conceived as a tool to effectively regulate the ongoing disposal of hazardous waste. RCRA governs disposal from active facilities and became final on November 19, 1980, as an amendment to the Solid Waste Disposal Act. Any hazardous waste disposal unit (surface im- poundment, landfill, land treatment unit, etc.) in existence after November 19, 1980, must comply with RCRA regulations. These disposal units are re- ferred to as regulated units. As a result of RCRA, many generators, treat- ers, and disposers of hazardous waste closed their waste disposal units be- fore November 19, 1980, to avoid regulation by RCRA. On December 11, 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or ‘‘Superfund’’) was signed into law. The CERCLA program was essentially a congressional attempt to address some of the weaknesses of both the RCRA regulatory program and the tort liability process. Specifically, CERCLA attempted to deal with the definition of responsible parties and their duties, a mechanism to fix costs, and a clear liability standard. For a time following enactment of Superfund, all of the pre-November 19, 1980, disposal facilities were handled as Superfund matters. This included closed disposal units at facilities that might otherwise be regulated as a RCRA TSD (treatment, storage, or dis- posal) facility. In the Hazardous and Solid Waste Amendments (HSWA) of 1984, Congress required that RCRA TSD facilities be assessed and remedi- ated as part of the RCRA permitting process. Thus, the facilities previously handled as Superfund sites now are dealt with under RCRA. (See corrective action discussion.) In the early days of Superfund implementation, many questions were raised regarding the interface between Superfund and RCRA. For instance, EPA tried to apply statutes and regulations designed for the ongoing dis- posal of hazardous waste to the remediation of past disposal actions. After a time, EPA’s policy in the National Contingency Plan (NCP) specified that, 80 although it would not be necessary to acquire a permit for on-site disposal actions, it would be necessary to comply with the applicable RCRA require- ments. As a result, whenever a remedial action selected for a Superfund site met the definition of disposal under RCRA, those disposal facilities were required to meet the technical standards of 40 CFR Part 264 under RCRA. As part of Superfund reauthorization, Congress has now codified that policy into law. Evolution How is CERCLA related to RCRA? A hazardous waste under RCRA is a hazardous substance under CERCLA. Wastes transported from Superfund sites must be disposed of in RCRA-permitted or authorized facilities. But the evolving coalescence be- tween the two pieces of waste management legislation goes far beyond these obvious links, particularly with the promulgation in November 1984 of HSWA. For instance, HSWA gave EPA broad new authority to issue correc- tive action orders as a prerequisite to granting RCRA Part B permits. That means that you can be ordered under RCRA to implement cleanup (on site and off site) to remedy problems at your site before you can obtain a RCRA permit. EPA will use RCRA rather than CERCLA to enforce such cleanup initiatives. Basically, the current policy of regulatory authorities is that once you re- move hazardous wastes at a Superfund site (whether or not you transport them off site), you become a generator under RCRA. If you dispose of ma terials on site (e.g., in a landfill, surface impoundment, lagoon), and/or must close that site, you may be required to comply with the substantive requirements of RCRA. These commitments are often long-term, rigorous, and costly. Therefore, if you are responsible for a Superfund site (or a site likely to become a Superfund site), it is not enough that you study and un- derstand your liabilities under CERCLA. It is crucial that you (and your legal and technical advisors) have a strong working knowledge of RCRA as well. In fact, your potential RCRA responsibilities, both technical and fi- nancial, may well be a significant determinant in scoping your response to CERCLA. For instance, the remedial action you recommend for implemen- tation, should you handle site cleanup yourself, may be the preferred alter- native because it enables you to limit your long-term liabilities, risks, and costs under RCRA. (See ERT companion volume, the RCRA Handbook.) Can RCRA sites be listed on the NPL? In establishing the first National Priorities List (NPL) in September 1983, EPA placed on the NPL only sites where RCRA provided no comprehensive authorities for correcting contamination problems. Interim Status RCRA facilities were often listed on the NPL, and past disposal units not regulated by RCRA were handled as a Superfund matter. In November 1984, HSWA 81 was enacted, expanding EPA’s authority to require corrective measures un- der RCRA. As a result, RCRA has full authority to deal with prior releases at RCRA facilities, and RCRA facilities no longer need be placed on the NPL. However, EPA will continue to consider eligible for the NPL those RCRA facilities to which RCRA corrective action authorities do not apply. In addi- tion, certain sites subject to corrective action requirements are eligible for listing on the NPL if: ¢ The facility owners are bankrupt. ¢ The facilities have lost RCRA Interim Status and there are additional indications that the owner or operator will be unwilling to undertake corrective action. ¢ Based on a case-by-case analysis, EPA has determined that the facilities’ owners or operators appear unwilling to undertake corrective action. Corrective Action What are the differences between the corrective action provisions of RCRA and the requirements of Superfund? With HSWA’s new authorities for permitting (Section 3004(u) and (v)) and enforcement (Section 3008(h)), RCRA can now require corrective action to remediate sources of continuing release. For instance, you must identify and assess all sources of continuing releases of hazardous wastes or constitu- ents into the environment from your facility. Once identified, RCRA requires you to implement a corrective action program to eliminate continu- ing releases. Corrective action is also required if you choose to seek a permit for closure of your active facilities. (See Table — Comparison of RCRA and CERCLA Corrective Action Provisions.) However, there are some differences between RCRA and Superfund cleanup requirements that could be important to you. Some SARA require- _ ments that are not part of RCRA include: a strong bias for permanent treat- ment and on-site treatment, health assessments, and natural resource dam- ages. In addition, the cost of Superfund cleanups can be spread among virtually all parties connected with a contaminated site; whereas RCRA cor- rective action assumes that only one party is responsible for cleanup. How- ever, Superfund includes cost-effectiveness considerations not included under RCRA. Although both RCRA and Superfund include public participation provisions, public awareness and adverse publicity is much greater for the cleanup of a Superfund site than for a RCRA corrective action order. These differences should be understood and carefully considered in your cleanup decision-making. In many cases, RCRA corrective action guidance will be used as cleanup standards for Superfund sites. However, every requirement of RCRA is not automatically appropriate for Superfund sites. EPA has negotiated standards 82 less stringent than RCRA for cleanup of Superfund sites. Therefore, it may be in your best interest to avoid use of RCRA corrective action guidance as the standard for your Superfund remedial action. For example, RCRA re- quirements for groundwater monitoring, frequency rates for sampling, and use of non-permanent remedies could be more costly than Superfund solutions. Before the Superfund Amendments and Reauthorization Act (SARA), RCRA corrective action implied a more continuing, long-term cleanup pro- gram than CERCLA. The 5-year review under SARA largely eliminates this difference, however. In addition, RCRA is more likely to involve (interfere with) active manufacturing operations than CERCLA due to the permitting requirements and operating constraints it imposes. Under some circumstances, you may have the option of remedying your site under either RCRA or CERCLA. In general, there is no clear-cut ad- vantage to either RCRA or CERCLA, however the particular circumstances of your site may make it better to work under one rather than the other. RCRA Land Ban What impact does the RCRA land ban have on CERCLA facilities? HSWA has severely restricted the disposal of hazardous waste in landfills. Superfund sites were given a 2-year national variance for compliance with the RCRA ban of certain wastes from land disposal under HSWA. However, the provisions of SARA that make land disposal the least favored alternative for Superfund site remediation and a stated preference for permanent reme- dies have, in effect, created a Superfund ‘‘land ban.’’ As a result of these new provisions under SARA, the significance of the RCRA land ban on Superfund seems minimal. However, the RCRA land ban requirements could potentially have significant impacts on cleanup levels, treatment tech- nologies, and the decision-making processes Superfund uses in remediating sites. Remedy Selection What if your site is regulated under both CERCLA and RCRA? A relatively small number of NPL sites are active operations with an on- going RCRA program. The overlap between the two laws creates the oppor- tunity to satisfy the requirements of the NCP and RCRA corrective action in a single program, but also raises the risk of performing two separate, but very similar, investigations and cleanups. Your response under this situation must be carefully considered. Regulatory agencies are ill prepared to mesh the two programs — negotiating and completing a combined effort may sub- stantially increase your cost and red-tape, and lengthen your schedule. Keep- ing the programs separate will simplify your regulatory situation, but you may find yourself having completed a Remedial Investigation/Feasibility 83 Study (RI/FS) but facing additional requirements under RCRA. If your site is on the NPL and is an active RCRA TSD facility, you should discuss the matter with the regulatory agencies. Assess the agencies’ ability and flexibil- ity in working with you to meet the requirements of both Acts and then de- cide the course of action that is best for your situation. Alternate Concentration Limits What differences exist between RCRA and CERCLA Alternate Concentra- tion Limit determinations? Proposing an Alternate Concentration Limit (ACL) is a way of introduc- ing site-specific considerations to the cleanup process. You must provide supporting information to show that the ACL will not have adverse effects on human health or the environment at any future time. In addition, the ACL proposal must include an analysis showing that concentrations of con- taminants moving between the source of contamination and receptors would present an acceptable level of risk to any person coming in contact with the water, soil, or air. Few, if any, ACLs have been allowed under RCRA. EPA is currently debating the acceptable cancer risk rates for approval of ACLs. Groundwater monitoring wells supply valuable hydrogeologi- cal and chemical information to support an ACL proposal. 84 Under RCRA, you may reduce your corrective action requirements for groundwater by proposing an alternative to the concentration limit set by EPA for the wastes involved at your site. Groundwater ACLs may be allowed in those instances where background levels cannot be reached. SARA has provided even more stringent requirements when establishing ACLs at Superfund sites. SARA does not allow use of RCRA-type receptor analysis to establish ACLs if you assume a point of human exposure beyond the boundary of the facility. This means that you must use the facility boundary as the farthest point at which a contaminant could have an ad- verse impact on a person. The only exception to this rule under SARA is when groundwater discharges into nearby surface water. Where this occurs, you must prove that there will not be a significant increase or accumulation of hazardous constituents in the receiving water body. In addition, your re- medial action must include enforceable measures that will prevent human exposure to the contaminated groundwater at any point between the facility boundary and all points where groundwater flows into the surface water. Only when these conditions are met, may the point of human exposure be beyond the facility boundary to establish an ACL under SARA. Underground Storage Tanks Are the RCRA and SARA underground storage tank programs interrelated? Under RCRA, EPA has issued regulations establishing two separate pro- grams for underground storage tanks: (1) to control underground tanks con- taining hazardous waste, under Subtitle C of RCRA; and (2) to deal with underground storage of ‘‘regulated substances’’ as defined by CERCLA, under Subtitle I of RCRA. The latter is known as the underground storage tank (UST) program and regulates over 300 hazardous materials and prod- ucts, not wastes. A notification schedule has also been set up for non-waste underground tank operations, whereby tank owners were to notify the desig- nated state agency by May 8, 1986. SARA requires owners and operators of USTs to clean up releases from subsurface fuel systems. If a UST owner is unable or unwilling to comply, EPA will direct the cleanup and recover associated costs from the responsi- ble party. If the leaking tank requires an emergency response to protect pub- lic health and safety, EPA is authorized to step in immediately. 85 For existing tanks, forthcoming RCRA regulations will include require- ments for: e leak detection or inventory control system, and tank testing, ¢ recordkeeping and reporting, © corrective action, ¢ financial responsibility for corrective action/third-party liability, and ¢ closure. For new tanks, regulations will include requirements for design, construc- tion, installation, release detection, and compatibility standards. Section 205 of SARA is designed to address environmental and health threats posed by leaking underground tanks containing petroleum products, without repeating or modifying CERCLA’s petroleum exclusion in any way. Instead, Section 205 amends the leaking underground storage tank program established under RCRA in several respects. First, EPA must set financial responsibility standards for owners and operators of USTS in the May 1987 tank standards EPA is required to issue under RCRA. EPA will require owners of large-volume tanks to produce evidence of financial responsibility in an amount sufficient to cover cleanup and third-party liability claims, a minimum of $1,000,000 per occurrence. Section 205(c) of SARA will be codified as revisions to RCRA. Second, SARA creates a $500 million Leaking Underground Storage Tank Trust Fund to be financed by taxes on motor fuels. This fund can be used to clean up petroleum releases from tanks under certain limited conditions, primarily those where no solvent owner or operator can be found to do the cleanup or where the cost of cleanup exceeds available resources of the owner or operator. The cleanup of petroleum releases is not otherwise cov- ered by CERCLA because petroleum products are excluded from the defini- tion of hazardous substance. Third, SARA authorizes EPA and/or states operating under cooperative agreements with EPA to take corrective action and sue the owner or opera- tor to recover the costs of cleanup or to require the owner or operator to conduct the cleanup themselves. 86 OSHA’s Role What is OSHA’s role in RCRA and CERCLA activities? Section 126 of SARA requires the Occupational Safety and Health Ad- ministration (OSHA) to issue regulations specifically designed to protect workers engaged in hazardous waste operations. These regulations required by SARA are in addition to the present coverage under OSHA’s General Industry and Construction standards. On December 19, 1986, in response to SARA, OSHA issued an interim final rule (51 Federal Register 45,654), which is fully effective on March 16, 1987. OSHA’s Hazardous Waste Oper- ations and Emergency Response standard applies to most RCRA treatment, storage, and disposal hazardous waste operations as well as to Superfund sites and emergency response activities. To a large extent, the OSHA stan- dard prompted by SARA converts EPA’s guidelines for health and safety at hazardous waste sites into regulations and broadens their application to haz- ardous waste operations under RCRA and to non-NPL sites. Included in the OSHA interim final rule are requirements for hazard communication, medi- cal surveillance, health and safety programs, air monitoring, decontamina- tion, and training. The training requirements specify minimum hours of initial and annual safety and health training for workers in hazardous waste operations (RCRA as well as CERCLA). For example, workers on CERCLA sites and RCRA cleanup operations must have an initial 40 hours of safety and health train- ing off site plus a minimum of 3 days of actual field experience under direct supervision of a trained, experienced supervisor. 87 Comparison of RCRA and CERCLA Corrective Action Provisions RCRA Superfund Cleanup Standard protect human health and ° environment protect human health and environment permanent remedy cost-effective on-site treatment requires ARARs (see Glossary) Judicial Review provides for general judicial ° review of permitting decisions potential for judicial review ° under the Administrative Procedure Act appears to prevent judicial review prior to the completion of a cleanup plan citizen suits Timing no schedule for investigations e and/or cleanups 30-year post-closure monitoring requirement . EPA must initiate 275 RI/FSs within 3 years and initiate on-site remedial action at 175 sites within 3 years 5-year review if any hazardous substances remain on site Health Assessments health assessment not required ° for corrective action cleanups health assessment may be com- ° pleted for facility that is a po- ° tential risk to human health costs borne by government mandates completion of a health assessment for all NPL sites must be completed by the ATSDR response costs recoverable from PRP \ Natural Resource Damages no liability associated with ° RCRA cleanups, unless sued under Section 7003 e natural resource trustee assigned to each NPL site must identify damages to natural resources PRPs responsible for cost of damages Other Responsible Parties does not extend liability to f © other parties, unless sued under Section 7003 ° extends liability to all parties associated with a site sets forth settlement procedures Recoverable Costs no statutory or regulatory . authority to recover costs associated with the cleanup program costs incurred by governmental agen- cies to oversee the cleanup program, evaluate the remedial alternatives, and initiate enforcement actions may be recovered from PRPs 88 Part II, Section 4 SUPERFUND’S IMPACT ON BUSINESS TRANSACTIONS About this Section of the Handbook This section discusses the major impact CERCLA/SARA has on business transactions, including mergers, acquisitions, financing, and buying and selling of real estate. Real Estate and Business Transactions How does Superfund affect transactions? Superfund imposes primarily two types of liability on buyers and sellers in business and real estate transactions for (1) sale of contaminated property, and (2) off-site disposal. First, for the sale of property contaminated by haz- ardous substances, the current property owner/operator as well as the owner/operator at the time of disposal or release of hazardous substances can be held liable. If the seller was the owner/operator at the time of dis- posal or release of a hazardous substance to the property, then the seller faces potential Superfund liability regardless of any private indemnifications from the buyer. These indemnifications, however, may give the seller a pri- vate cause of action to recover some of its liability from the buyer. The buyer of a contaminated site also faces potential Superfund liability, even if disposal or release of a hazardous substance did not occur during its tenure, unless the buyer can meet the fairly rigorous standards to qualify as an ‘‘in- nocent landowner.”’ You can assert the Superfund Amendments and Reauthorization Act’s (SARA’s) innocent landowner defense only if you made an appropriate inquiry about the land before you bought it and did not discover the hazardous substances. Second, for the sale of a business that generated hazardous substances that were disposed of off site, the seller can have Superfund liability for the off-site facility. Furthermore, depending on the structure and terms of the acquisition of that business, the buyer may have contractually assumed the liabilities for past practices, as well as face direct Superfund liability for fu- ture off-site disposal under its ownership. In addition, buyers and sellers may also face liability from private lawsuits for personal injury or property damage arising out of the environmental contamination. Early in negotiations the parties may want to consider an environmental site assessment to attempt to determine whether the property or business presents potential Superfund liabilities. Environmental site assessments are factual investigations that include an examination of the land to determine whether hazardous substances are present. This can serve not only to iden- tify the potential risks involved, but also allows for a more informed negoti- ation over such issues. 89 What are the potential consequences of Superfund liability? Under CERCLA, if you purchase real estate contaminated by hazardous substances you may have to perform or pay for a cleanup. At a minimum, the investor or buyer may lose the return on his investment. In some cases, the costs of cleanup can exceed the value of the property. For a smaller business, the cleanup costs may even exceed the revenue- generating ability or value of the business. If the company cannot afford to pay for the cleanup, its assets and property may be subject to a government lien. Until the cleanup is completed, as a practical matter the property may not be sold, redeveloped, or otherwise improved. In addition, deed restric- tions may be placed on future use of the property, even if the site has been cleaned up. In some situations, banks and investors may be called upon to share in or assume all of the cleanup costs. Landlords can also be held liable for their tenants’ activities if they contaminate the land. Lender’s Liability What risks does CERCLA present for lenders? A lender should be concerned about a borrower’s potential CERCLA lia- bilities because a borrower may not be able to repay a loan, and the value and marketability of collateral subject to a cleanup may decline greatly. In addition, a state with a superlien statute may even create a lien on the col- lateral with priority over the lender if the state cleans up the collateral. To protect its interests, a lender should investigate whether the borrower may have Superfund liabilities and whether the property featured in the transac- tion may be contaminated with hazardous substances before it makes a loan. Depending on factors such as the nature of the borrower’s business and the amount and term of the loan, investigations can range from a questionnaire to an environmental site assessment. In addition to performing factual re- search, lenders should determine whether a state superlien may affect the collateral. To keep informed about how CERCLA or state legislation may be affect- ing a loan, lenders should insist that loan documents contain detailed notice provisions. The provisions should require the borrower to inform the lender of state or federal action under CERCLA or a comparable state law, as well as the imposition of a federal lien or a state superlien. Can lenders be held liable? At least one recent court decision has held that a lender may be held re- sponsible under Superfund for cleanup costs at sites on which it had fore- closed. The court reasoned that when the bank forecloses on a property, it becomes the owner of the property. In the decision, the exemption from the definition of owner/operator for individuals who merely hold mortgages to protect their loan was not applicable. 90 Also, when a lender increases its participation in the management of a company it also increases its chances of liability under Superfund. Another recent court decision has indicated that some degree of active management may be enough to make the bank an owner/operator for Superfund pur- poses even without foreclosure. Therefore, ongoing legal developments in- cluding court cases should be carefully reviewed to evaluate your own poten- tial liability. Impact of State Laws How do state laws affect the transfer of contaminated land? Different types of state statutes may affect the transfer of contaminated land. One type is modeled on New Jersey’s landmark legislation, the Envi- ronmental Cleanup Responsibility Act, or ““ECRA.’’ ECRA-type statutes require a state-approved environmental site evaluation and a commitment to property cleanup before it can be transferred, sold, or closed. ECRA stat- utes can affect not only the economics of a transaction, but the timing as well. Sometimes it can take months or longer for ECRA issues to be resolved before the transaction will be allowed to proceed. As of December 1986, only New Jersey and Connecticut have adopted ECRA statutes. How- ever, other states are likely to consider legislation modeled on the New Jer- sey ECRA law. Also, most states have enacted their own Superfund law, some of which contain ‘‘superlien’’ provisions. Superlien and Lien Provisions What are superliens? Superlien provisions vary from state to state, but are basically liens in fa- vor of a state against a responsible party’s property to secure the state’s costs of cleanup. Some states use superliens to pay for response costs they incur under state statutes similar to Superfund. The most important point about superliens is that they normally have priority over earlier liens on the property in question. Although only a handful of states (Arkansas, Connect- icut, Massachusetts, Minnesota, New Hampshire, New Jersey, and Tennes- see) have superlien provisions as of December 1986, more states are likely to adopt them. Most superliens provide for super-priority status over most preexisting liens, including bank mortgages, on the property that was cleaned up. A few state provisions even may be interpreted to give such priority status over pre- existing liens on the responsible party’s other personal or real property not affected by the cleanup. Finally, title insurance companies in many states with superlien provisions have begun to exempt environmental liabilities from their policy coverage unless you obtain environmental certification for the land. Recognizing that other states may eventually adopt the superlien-type pro- vision, some banks are requiring a prepurchase evaluation of sites that are 91 located in states without regulations. These banks do not want to hold the mortgage on property which may have hazardous materials at the time new superlien laws come into effect in other states. Is there a federal lien provision? Under SARA the federal government can now obtain a lien on certain property to satisfy a party’s Superfund liability. The real properties and rights to the property that may be subject to this lien are properties which (1) belong to the person, and (2) are subject to or affected by a removal or remedial action. (Costs and damages for which the owner/operator of a ves- sel is liable will be a maritime lien in favor of the United States on the ves- sel.) The federal lien does not apply to (1) property that is not affected by response action, and (2) property affected by response action but not owned by a responsible party. The lien arises when the federal government first incurs costs with respect to a response action and the property’s owner is provided with written notice (by registered or certified mail) of potential liability. The lien will continue until the liability is satisfied, or becomes un- enforceable when the statute of limitations runs out. The federal lien is not normally considered a priority lien or ‘‘superlien,”” as found in some state Superfund statutes. Priority liens give states a super- priority lien on the property of a responsible party over all other claims against the property. The federal lien is normally junior to the rights of any purchaser, holder of a security interest, or judgment lien creditor who has priority under state law. However, the federal lien may affect future advances, including those under revolving loans. The lien may not exceed the value of the property; however, the federal lien provision does not bar action against a Potentially Responsible Party (PRP) to recover costs and damages greater than the value of the property. Bankruptcy What is Superfund’s impact on bankruptcy proceedings? The effect Superfund will have on bankruptcy proceedings is hard to pre- dict. Much of the uncertainty results from the conflicting policies of Superfund and bankruptcy law. One of Superfund’s objectives is to have responsible parties pay for cleanups to protect public health and the environ- ment. Bankruptcy law tries to preserve bankrupt debtors’ assets for their creditors while helping bankrupt debtors recover. Courts will be deciding cases that will force them to address the tensions between the two laws. Some of the issues courts have and will have to examine are (1) the dischargeability of CERCLA liabilities, (2) whether a bankruptcy trustee can abandon a hazardous waste site, (3) the priority of the government’s CERCLA claims, (4) the effect of the automatic stay on the government’s attempts to enforce responsible parties’ obligations under CERCLA, (5) whether a creditor’s participation in a bankruptcy proceeding makes the creditor an owner/operator, (6) protection for post-petition financing, and (7) surcharging collateral. 92 Environmental Site Assessments How can a buyer find ‘‘hidden’’ risks and liabilities? An environmental site assessment is the best method for determining any “‘hidden”’ risks and liabilities associated with a site. Specifically, through an environmental site assessment a buyer can attempt to quantify the probabil- ity of a site problem, extent of the problem, potential financial liability, and cost of cleanup. With this information, the buyer can determine and negotiate the condi- tions of the acquisition or investment. Buyers may opt for an asset acquisi- tion rather than a stock acquisition, or may negotiate purchase money holdbacks or cost-sharing arrangements for cleanup. Or a buyer may seek insurance, and incorporate indemnification provisions in the transaction documents. How can a seller protect himself? The seller also benefits from an environmental site assessment of the property before a sales deal is structured or before a buyer has been identi- fied. Advance knowledge of site problems improves the seller’s negotiating position. The seller may wish to redefine the property boundaries to leave out problem areas, or negotiate with the buyer for some type of cost-sharing arrangement for the cleanup. As for the buyer, the seller’s knowledge of problems associated with the site can aid in determining purchase holdbacks, indemnification, and cost- sharing provisions. Of particular importance to the seller is reducing long- term liability and providing protection against future claims. By document- ing site conditions at the time of sale, the seller protects against the buyer coming back at some future time requesting cleanup of a newly discovered problem on the site. An environmental site inspection of this 32-acre site revealed 45 sludge pits requiring cleanup. Advance knowledge of such hidden liabilities can be a real advantage to both buyers and sellers. 93 What is an environmental site assessment? An environmental site assessment is an investigative program that identi- fies soil, groundwater, surface water, or building contamination as a result of site activities. The environmental site assessment is typically done in three phases, so you can stop the work when you have enough information to make a decision. Both parties should be aware of three points about environmental site as- sessments. First, they may be difficult to keep confidential, especially during the course of negotiations. Second, identification of environmental problems makes the problems hard to ignore and may trigger reporting and compli- ance requirements. Third, no matter how well an assessment is conducted, there will always be some degree of uncertainty with respect to evaluating problems identified and the possibility that other problems will be discov- ered in the future. What does the environmental site assessment involve? Phase 1, preliminary evaluation of the property, includes developing an understanding of past activities, reviewing information about the site geol- ogy and hydrogeology, and conducting a site inspection. Based on this infor- mation, you can make an informed judgment about the potential for signifi- cant site contamination. This phase also includes recommendations for additional work, if necessary. Phase 2, problem definition, is designed to confirm or deny the prelimi- nary findings (Phase 1) and to quantify the extent and significance of prob- lems associated with the site. This can involve installing test pits and/or groundwater observation wells; analyzing samples of groundwater, surface water, soil, or other media; analyzing unknown residues or wastes; and eval- uating underground storage tanks. Phases | and 2 are usually accomplished prior to the closing of the trans- action. Phase 3 (if required) involves more detailed site evaluation to prop- erly design and implement any needed remedial action. This typically in- cludes more comprehensive sampling and analysis of waste, soils, or water. Are there different requirements for active industrial operations? For ongoing industrial manufacturing operations, it is often appropriate for the buyer to conduct an ‘‘environmental compliance audit’’ in conjunc- tion with the environmental site assessment. The audit examines whether or not the seller’s facility is in compliance with applicable environmental regu- lations. If the facility is not in compliance, the audit also determines the cost to bring it into compliance. Environmental compliance audits also as- sess the general conditions of your environmental control equipment and procedures. Being in compliance does not eliminate all potential liabilities and many audits of industrial operations also address the risks of all poten- tial environmental liabilities. These cover both risks of chronic situations and acute risks of sudden releases of hazardous or toxic substances. 94 Part III Emergency Planning and Community Right-to-Know KEY QUESTIONS ABOUT TITLE III About this Section of the Handbook This section describes the new comprehensive emergency planning and community right-to-know provisions under Title III of SARA. These provisions will subject the chemical industry, manufacturers, and operating businesses that handle hazardous materials to new recordkeeping and reporting requirements. Overview What is Title III? Title II of the Superfund Amendments and Reauthorization Act (SARA) is an entirely new and freestanding legislative program known as the Emer- gency Planning and Community Right-to-Know Act of 1986. Thus, Title III is separate from, though closely related to, CERCLA. Title III was passed in the wake of the Bhopal, India disaster that focused public attention on the fact that toxic chemicals present at chemical manufacturing and other facilities in the U.S. may be a hazard to communities. Title III establishes three major requirements relating to (1) emergency planning notification, (2) emergency release notification, and (3) reporting on chemicals and releases for community right-to-know. Many of Title III’s requirements will be incorporated into the existing National Contingency Plan (NCP). This law does not preempt state and local right-to-know laws. Title III’s emergency planning and community right-to-know provisions re- quire communities to gather and provide public access to information on hazardous materials that can affect them through either accidental releases or routine emissions. New organizations must be established at the state and local level to han- dle these issues. The law requires that a state emergency response commis- sion (see Glossary) be appointed by each state governor by April 17, 1987. The state commission in turn must designate emergency planning districts and local emergency planning committees shortly thereafter. In addition to complying with Superfund’s spill reporting and facility no- tification requirements, you may have to comply with the Title III emer- gency notification and reporting requirements. The information you provide will be used to help local emergency planning committees prepare for situa- tions where hazardous materials are released and provide the public with information on the hazardous materials in their communities. Furthermore, you may be required to disclose information about chemicals present at your facility and all routine emissions and releases from your facility. Title III is an ambitious piece of legislation that may have dramatic implications for many of the industries handling toxic and hazardous materials. 95 What kinds of plans will these state commissions and local committees develop? How are companies involved in that process? State emergency response commissions and local emergency planning com- mittees are responsible for organizing the planning process for extremely hazardous substances (see Glossary). Commissions and committees will es- tablish and update emergency plans (see Glossary) for responding to chem- ical accidents that can damage human health and the environment. The pri- mary responsibility for emergency planning is at the local level, within the local emergency planning committee. The state emergency response commis- sion has oversight responsibility, however, and even has authority to change members on the local committee. This planning process imposes new requirements on industry. Companies will be spending more time compiling reports and responding to public and governmental requests for information. Facility owners/operators must in- form state and local officials about extremely hazardous substances present at the facility and reveal a great deal more about the nature of their opera- tions. Facilities must also designate a facility representative as an emergency coordinator who will participate in the local emergency planning effort. Title IIl embodies into law initiatives by EPA, industry, and institutions to promote community response planning and industry-community interaction to achieve this goal. These initiatives include EPA’s Community Emergency Preparedness Program guidelines, issued in November 1985; the Community Awareness and Emergency Response (CAER) program launched by the Chemical Manufacturers Association; and the policy issued by the American Institute of Chemical Engineers. On a local level, many Hazardous Materi- als Advisory Councils have been set up through the voluntary participation of industry and local communities, and a number of states have set up programs. Are companies required to do internal emergency planning under Title III? No. Industry is not directly required to plan for emergencies, but the Title III requirements almost necessitate a coordinated planning effort. The ap- pointment of a facility emergency coordinator, the need to identify acciden- tal releases and provide communities and state agencies with detailed infor- mation related to the release, and the requirement to provide communities with information requested for developing and implementing an emergency plan, all point to the prudence of an effective emergency response system in a facility. In addition, related requirements are contained in state legislation passed in New Jersey, California, Illinois, and elsewhere. Also, some municipalities may have certain planning requirements for granting town permits. For ex- ample, in one case, a town fire official required a dispersion modeling study for a worst-case fire before granting an occupancy permit for a chemical storage warehouse. You may also be required by other federal and state laws, such as RCRA, to prepare emergency plans. 96 Facility operators can now use computer-based systems for emer- gency response planning and risk assessment, as a training tool to prepare personnel for an emergency situation, or during emergency response to toxic spills. Emergency Planning Notification What are the emergency planning notification requirements? Under the planning notification requirements (Section 302(c)) you must notify the state emergency response commission by May 17, 1987, if your facility contains an extremely hazardous substance in excess of the threshold planning quantity. In an interim final rule, EPA published a list of ex- tremely hazardous substances and threshold planning quantities on Novem- ber 17, 1986 (51 Federal Register 41,510). After May 17, 1987, you must no- tify the state emergency response commission and local emergency planning committee within 60 days of the time you have an extremely hazardous sub- stance at your facility in excess of the threshold planning quantity. If your facility has an extremely hazardous substance in excess of the threshold, or if your governor or state emergency response commission has notified you that your facility is subject to Title III’s requirements, under Section 303(d), you must: © notify the emergency planning committee (or the governor if there is no committee) of a facility representative who will participate in the emer- gency planning process as a facility emergency coordinator (notification must occur within 30 days after a local emergency planning committee is established or by September 17, 1987, whichever comes first); © promptly notify the committee of any relevant changes at your facility as they occur or are expected to occur; and © provide information the committee requests for developing and imple- menting the emergency plan. The extent of the information you must reveal will depend on the position taken by the local committees. Committees might ask for full details of your 97 facility emergency response plan, measures in place to minimize the poten- tial for releases or to mitigate their consequences, or other details of facility operations. The limits on information these committees may demand are as yet untested. Note that the emergency planning notification requirements do not apply to the transportation, or related storage, of substances that are otherwise subject to Title III requirements. Can you withhold the specific chemical identity of a substance from an emergency planning committee? Yes. If you can establish that a specific chemical identity is entitled to trade secret protection, you will not have to report it to an emergency plan- ning committee. (See later discussion of trade secrets.) What are the penalties for violations of emergency planning notification requirements? If your facility contains an extremely hazardous substance in an amount greater than the threshold planning quantity, EPA may order you to comply with the planning notification requirements. A federal district court can en- force the order, and if you violate the order or fail to comply with it, you may be liable for a maximum civil penalty of $25,000 for each day the viola- tion occurs or the failure to comply continues. Emergency Release Notification What are the emergency release notification requirements? Under Section 304 you must immediately report the following releases from facilities where a hazardous chemical (see Glossary) is produced, used, or stored, if the release results in exposure to persons off site: © a release of a hazardous substance which requires notification under CERCLA’s spill reporting requirements (Section 103(a)); and * a release of a reportable quantity of an extremely hazardous substance (see Glossary), unless it is a federally permitted release. EPA published regulations, a list of extremely hazardous substances, and reportable quantities of extremely hazardous substances as an amendment to the NCP on November 17, 1986 (51 Federal Register 41,570). How do you give emergency release notification? Until April 30, 1988, for nonextremely hazardous substances that do not have a reportable quantity (RQ) under CERCLA § 102(a), you must report releases of 1 pound or more to the community emergency coordinator for the local emergency planning committee. Your report must be made at the same time and in the same form as notice to the National Response Center under CERCLA’s spill reporting requirements (Section 103(a)). 98 For releases of all other substances subject to Section 304 requirements, and after April 30, 1988, for releases of 1 pound or more of hazardous sub- stances for which EPA has not established an RQ, you must give immediate notice. Notice must be by phone, radio, or in person to (1) the community emergency coordinator, and (2) the state emergency planning commission for any local area or state likely to be affected by the release. If there is no committee or commission, you should provide notification to relevant local or state emergency response personnel. You must comply with these require- ments now. They became effective on November 17, 1986. As soon as practicable, you should provide a written follow-up emergency notice (or notices, as you get more information). Your written notice should include and update the information you already reported, and provide de- tails of your actions to respond to and contain the release, as well as any known or anticipated health risks associated with the release, and where ap- propriate, advice about medical attention for exposed individuals. Your writ- ten notices will be made available to the public. For a release during transportation or related storage of a substance sub- ject to the emergency notification requirements, you give notice by dialing a 911 emergency telephone number. If there is no 911 number, you must call the operator. Immediate Notice Requirements* © the chemical name or identity of any substance involved in the release ¢ an indication of whether the substance is on the list of extremely hazardous substances an estimate of the quantity released the time and duration of the release the medium or media into which the release occurred any known or anticipated acute or chronic health risks associ- ated with the emergency and, where appropriate, advice regard- ing medical attention necessary for exposed individuals © proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator in the emergency plan) ¢ the name and telephone number of the person(s) to be contacted for further information *To the extent known at the time and as long as no delay in responding to the emergency results. 99 What are the penalties for failure to comply? You may be subject to criminal or civil sanctions for failing to comply with the emergency release notification requirements. The criminal sanctions for knowingly and willfully failing to comply with Section 304’s emergency release notification requirements are: © a maximum fine of $25,000 ($50,000 for a second or subsequent convic- tion), and/or © a maximum of 2 years’ imprisonment (5 years for a second or subse- quent conviction). The civil penalties are a maximum of $25,000 per violation or $25,000 per day for each day during which the violation continues. For a second or sub- sequent violation, the maximum penalty is $75,000 for each day the viola- tion continues. Penalties may be assessed by administrative or judicial proce- dures. You may appeal the administrative assessment of a penalty in federal district court. The court will probably base its decision on information con- tained in the administrative record, so you should participate in developing the record. Community Right-to-Know Reporting What are the community right-to-know reporting requirements? The community right-to-know reporting provisions incorporate and build upon many of the requirements of the Hazard Communication Standard issued by the Occupational Safety and Health Administration (OSHA) of the Department of Labor. However, the Title III program goes far beyond OSHA requirements and establishes three broad reporting requirements. These are: © a Material Safety Data Sheet (MSDS) — a chemical information sheet; ¢ an Emergency and Hazardous Chemical Inventory Form — a report of the amount of certain hazardous chemicals present at a facility; and © a Toxic Chemical Release Form — a report of the amount of routine emissions into the environment from the facility. With these requirements, SARA responds to the public demand for more information on the handling of hazardous materials. These requirements affect chemical manufacturers, importers, and employers in virtually all manufacturing industries. The reporting requirements do not apply to the transport, and related storage, of substances that are otherwise subject to Title III requirements. Transport requirements for hazardous waste are covered under Department of Transportation or RCRA regulations. 100 What are the MSDS reporting requirements? Owners/operators must provide information on the manufacture, use, and storage of chemicals present at their facilities. If you are required to prepare or have available an MSDS for a hazardous chemical under the Occupa- tional Safety and Health Act (OSH Act), then under Section 311 of Title II, you must submit an MSDS for each hazardous chemical, or a list of the hazardous chemicals, to: ¢ the local emergency planning committee, © the state emergency response commission, and ¢ the local fire department. You have the option of submitting either the MSDS or the list. EPA has pro- posed regulations for implementing the MSDS reporting requirements (52 Federal Register 2836 (Jan. 27, 1987)). To meet the MSDS reporting requirement for a hazardous chemical that is a mixture, you can (1) submit an MSDS for, or identify on a list, each ele- ment or compound in the mixture which is a hazardous chemical; or (2) sub- mit an MSDS for, or identify on a list, the mixture itself. If more than one mixture has the same element or compound, only one MSDS, or one listing, of the element or compound is necessary. What are the deadlines for submitting MSDSs or lists? You must make your initial submission before: * October 17, 1987, or ¢ 3 months after you are required to prepare or have available an MSDS for the chemical under the OSH Act, whichever is later. Within 3 months after you discover significant new infor- mation about an aspect of a hazardous chemical, you must submit a revised MSDS to the local emergency planning committee. Who will have access to MSDSs? The public can request MSDSs from the local emergency planning com- mittee. If a person requests an MSDS the committee does not have, the committee will ask you for it. Even if no member of the public has requested an MSDS, the committee can ask you for it if you have submitted only a list. You may be able to withhold a specific chemical identity from the local emergency planning committee and the public if you can establish that it is a trade secret. What are the emergency and hazardous chemical inventory reporting requirements? If you are required to prepare an MSDS for a hazardous chemical under the OSH Act, you must also prepare an emergency and hazardous chemical inventory form under Section 312 of Title III. You must provide this infor- 101 mation to the local emergency planning committee, the state commission, and the local fire department. The hazardous chemicals that must be listed on the inventory form are those for which an MSDS is required (Section 311). The inventory forms are to report information in two ‘‘tiers.”’ Tier I information involves an estimate of the amount and general locations of hazardous chemicals by category. You must submit Tier I information by March 1, 1988, and annually thereafter. Tier I Information ¢ estimate of the maximum amount of hazardous chemicals in each category* present at the facility at any time during the preceding calendar year © estimate of the average daily amount of hazardous chemicals in each category* during the preceding calendar year © the general location of hazardous chemicals in each category *Categories of health and physical hazards under the OSH Act. EPA may modify the OSH Act’s categories by requiring information to be reported by groups of hazardous chemicals that present similar hazards in an emergency. In addition, EPA may require reporting on individual hazard- ous chemicals of special concern to emergency response personnel. If requested, you must also submit Tier II information. Tier I] informa- tion includes the quantities, locations, and storage of individual chemicals (as opposed to the information on categories of chemicals required in Tier I). When you submit Tier II information, you may indicate whether you wish to withhold information about the location of a specific hazardous chemical from disclosure to the public. You can withhold the specific chemical iden- tity if you can demonstrate that it is a trade secret. EPA published a pro- posed format for inventory forms (52 Federal Register 2836 (Jan. 27, 1987)). To meet the reporting requirements for a hazardous chemical that is a mixture, you can (1) provide information on each element or compound that is a hazardous chemical, or (2) provide information about the mixture. If more than one mixture has the same element or compound, only one listing on the inventory form for the element or compound at the facility is necessary. Will the public have access to your inventory forms? Chemical inventory forms containing Tier I information will generally be available to the public. However, there are special provisions for public ac- cess to Tier II information. A person can request Tier II information from a state emergency response commission or local emergency planning commit- 102 tee. The commission or committee must provide the information if it has it. If the commission or committee does not have the requested information, it must obtain the information from you for any hazardous chemical your fa- cility has stored in amounts greater than 10,000 pounds at anytime during the preceding calendar year. The committee or commission must then give the Tier II information to the person who requested it. For Tier II informa- tion not in the possession of the committee or commission, and for a haz- ardous chemical that your facility has stored less than 10,000 pounds of at anytime during the preceding calendar year, the committee or commission has discretion whether or not to obtain it from you. Will the fire department have access to your property? If you file an inventory form and the local fire department asks to inspect your facility, you must allow the on-site inspection. In addition, if the fire department asks where hazardous chemicals are located at your facility, you must provide that information. What are the toxic chemical release reporting requirements? You must submit a toxic chemical release form under Section 313 of Title IIL if your facility: e has 10 or more full-time employees; e is in Standard Industrial Classification Codes 20-39 (as in effect on July 1, 1985) (EPA may add or delete SIC codes for these reporting re- quirements); and e manufactured, processed, or otherwise used a toxic chemical (see Glos- sary) in excess of its threshold reporting quantity during the calendar year for which a release form is required. Your facility may also be subject to the reporting requirements if it manu- factures, processes, or otherwise uses a toxic chemical. EPA may determine you must report because of the toxicity of the chemical, your facility’s prox- imity to population centers or other facilities that release the chemical, the history of releases of the chemical at your facility, or other factors. The threshold amount for reporting toxic chemicals present at your facil- ity is: * for a toxic chemical used at a facility, 10,000 pounds of the chemical per year; and ¢ for a toxic chemical manufactured or processed at a facility: - for the toxic chemical release form submitted on or before July 1, 1988, 75,000 pounds of the toxic chemical per year; - for the form submitted on or before July 1, 1989, 50,000 pounds of the toxic chemical per year; and 103 - for the form submitted on or before July 1, 1990, and each form thereafter, 25,000 pounds of the chemical per year. EPA may revise the threshold amounts. Information for a Toxic Chemical Release Form* © the name and location of, and principal business activities at, the facility ¢ an appropriate certification, signed by a senior official with management responsibility for the report, regarding the accu- racy and completeness of the report © for each listed toxic chemical known to be present at the facility: - whether the toxic chemical is manufactured, processed, or other- wise used, and the general category or categories of use of the chemical - an estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year - for each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream - the annual quantity of the toxic chemical entering the air, water, and soil *You may withhold a substance’s specific chemical identity if you can establish that it is a trade secret. How and when do you submit a toxic chemical release form? If EPA does not publish a uniform toxic chemical release form, you should provide the information by letter postmarked on or before the date the form is due. To provide the information, you can use readily available data (including monitoring data). If you do not have readily available data, you can use reasonable estimates. Calculating or even estimating annual quantities of toxic chemicals released may not be particularly straightfor- ward in some instances, and additional emission inventories, mass balance studies, or other systems may be needed in order to avoid the possibility of an EPA investigation revealing higher release rates than you have reported. On or before July 1, 1988, and annually on July 1 after that, you should submit a form to EPA and to a state official designated by the governor. EPA can change the reporting frequency, but cannot require reporting more often than annually. 104 EPA will compile this information and make it readily available to the public. EPA must establish a national toxic chemical inventory in a comput- erized data base. The data will be accessible by computer telecommunication and other means to any person on a cost-reimbursable basis. You should consider the potential reaction by local communities once data on releases is made public. The possibility of adverse publicity may encour- age facilities to take additional steps to minimize routine or episodic emis- sions or releases. What are the penalties for violating the community right-to-know reporting requirements? If you violate the MSDS reporting requirements, you may face a maxi- mum civil penalty of $10,000 for each violation. If you violate the emergency and hazardous chemical inventory or toxic chemical release reporting requirements, you may be liable for a maximum civil penalty of $25,000 for each violation. Each day a violation continues is a separate violation. You may face a civil penalty in an administrative or judicial proceeding. You can appeal the penalty in federal district court, where review is likely to be based on the administrative record. Thus, it is important for you to participate in the record’s development. Do these reporting requirements imply other activities companies should consider to manage risks associated with hazardous and toxic substances at operating facilities? Although not explicitly called for under Title III, companies may want to estimate, through release and dispersion modeling, the magnitude, extent, and duration of off-site impacts associated with toxic chemical releases. In this way a company will, in the event of a release, be able to inform officials about the anticipated health risks and required precautions for the popula- tion. Both of these types of information are required under the emergency notification requirements. The modeling can also be used to identify those releases for which mitigation measures should be developed. You may also wish to consider the use of a computerized emergency response system to streamline this notification process and aid in the training of plant emer- gency response personnel. The making public of a great deal of information about facility operations will force companies to consider public opinion in their planning. Compa- nies will recognize the importance of working with local communities to promote understanding of the large amount of information received. The need for good community relations may encourage programs to reduce the potential for both accidental and routine releases to an absolute minimum, and also to actively participate with local communities in establishing plans to minimize potential consequences of such releases. 105 Trade Secrets vs. Health and Public Information How can you withhold information as trade secrets? Companies subject to Title III requirements may withhold information on the specific chemical identity of a substance, but must report its generic cat- egory under Title III’s trade secret provisions. These provisions apply to hazardous chemicals, extremely hazardous substances, or toxic chemicals for which you are required to submit emergency planning notification, MSDSs, emergency and hazardous chemical inventory forms, or toxic chemical re- lease forms. EPA will issue trade secret regulations under Title III that will entitle you to withhold a specific chemical identity if you: ¢ claim the information is a trade secret when you submit the rest of the information, ¢ include an explanation of the reasons why the information is claimed to be a trade secret, and ¢ send EPA a copy of both the information you are submitting and the information you wish to withhold as a trade secret. To claim that the information is a trade secret you must show (1) you have not already disclosed the information, (2) that it is not required to be dis- closed under any other law, (3) that disclosure is likely to cause substantial harm to your competitive position, and (4) that competitors cannot deter- mine the chemical identity for themselves through reverse engineering. Whenever you claim the identity of a hazardous chemical or extremely hazardous substance as a trade secret, the governor or state emergency re- sponse commission will identify the adverse health effects associated with it and be sure that such information is provided to anyone who requests it. When you claim the identity of a toxic chemical as a trade secret, EPA will identify the adverse health and environmental effects associated with it and include the information in the national toxic chemical inventory data base and provide it to anyone who requests it. The law provides for penalties if your trade secret claim is found to be frivolous. You may be liable for a civil penalty of $25,000 per claim, which can be assessed in administrative or judicial procedure. When can you be required to provide a substance’s chemical identity to a health professional? Under Section 323 of Title III, if you have to submit MSDSs/lists, emer- gency and hazardous chemical inventory forms, and/or toxic chemical re- lease forms, under certain circumstances you must provide a substance’s chemical identity to health professionals. A health professional who requests in writing a chemical identity from you must include a statement of need and a confidentiality agreement specifying that the information will be used only for health needs. The reasonable basis of a health professional’s need would be for diagnosis or treatment, preventive measures, or a medical 106 emergency. A health professional who requests a chemical identity from you for preventive measures must be a local government employee under contract with the local government. For medical emergencies, you have to give health professionals the chemical identity even if they do not have time to give you a written confidentiality agreement and statement of need. You may require those documents, though, as soon as the circumstances permit. What are the penalties for failure to provide a chemical identity to a health professional? If you fail to provide a chemical identity to a health professional, the pro- fessional may sue you in federal district court to require you to provide the information. In addition, if you fail to provide a chemical identity requested by a health professional because of a medical emergency, you may be subject to a maximum civil penalty of $10,000 per violation. Each day the violation continues will be a separate violation. EPA may assess the penalty by admin- istrative order or may sue in federal district court to assess and collect the penalty. Citizen and Government Suits Are you subject to citizen and government suits? Yes. Any citizen may sue facility owners or operators for failure to meet community right-to-know reporting requirements of Title III and sue federal and state officals for failure to carry out Title III provisions. If you fail to submit a follow-up emergency notice, an MSDS or list, an inventory form, and/or a toxic chemical release form, any person may sue you. In addition, a state or local government can sue you for failure to notify the state emer- gency response commission and local emergency planning committee that your facility contains an extremely hazardous substance in excess of the threshold planning quantity, and for failure to submit an MSDS or list or chemical inventory form containing Tier I information. A state emergency response commission or local emergency planning commission can sue you for failure to provide emergency planning notification under Section 303(d) and for failure to submit Tier II information. A citizen cannot start a suit against you until 60 days after the citizen has notified you, EPA, and the state of the alleged violation. Neither the govern- ment nor a citizen can sue you if EPA is diligently pursuing an administra- tive order or civil action to enforce the requirement or impose a civil penalty. The court may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing party. 107 November 17, 1986: May 17, 1987: September 17, 1987, October 17, 1987: March 1, 1988, July 1, 1988, Timeline for Facility Actions Emergency release notification requirements effective Notification of presence of extremely hazard- ous substances in excess of threshold planning quantity or within 30 days after establishment of a local emergency planning committee: Designation of facility emergency coordinator Submission of MSDSs or list of chemicals and annually thereafter: Submission of emer- gency and hazardous chemical inventory forms and annually thereafter: Submission of toxic chemical release forms 108 Part IV, Section 1 ABOUT SIDLEY & AUSTIN Sidley & Austin is one of the nation’s largest law firms, with more than 500 attorneys in offices located in Chicago, Los Angeles, Washington, and New York, and in three cities overseas. Because we have a nationally coordi- nated environmental practice, environmental law is one of Sidley & Austin’s more visible areas of expertise. Over the past 17 years, the firm has devel- oped a core group of highly specialized practitioners, complemented by at- torneys in other areas who have environmental subspecialties. The firm’s environmental practice currently focuses primarily on hazard- ous waste issues. The firm has represented clients in connection with hun- dreds of Superfund, RCRA, and similar sites. The firm also defends toxic tort cases that are spawned by Superfund-type sites. Of course, as environ- mental matters have become more pervasive, overlapping with corporate, real estate, bankruptcy, product liability, labor, and legislative areas, the firm’s environmental group has handled those matters as well. For example, the firm has extensive experience in advising buyers, sellers, and lenders in connection with the environmental risks associated with business or financ- ing transactions. The firm’s environmental attorneys bring many years of experience as en- vironmental lawyers in private practice to the effort. Moreover, several of the group’s lawyers have held senior positions with environmental agencies, including the U.S. Environmental Protection Agency, the U.S. Department of Justice, state environmental agencies, and state attorneys general. Members of the group are regular lecturers at professional and legal edu- cation seminars and have authored numerous articles on environmental law and litigation. For additional information on hazardous waste or other environmental matters, please call: In Washington, D.C., Stephen Ramsey (202/429-4146) or Angus Macbeth (202/429-6171). In Chicago, Robert Olian (312/853-7208) or James Cahan (312/853-7750). In Los Angeles, Charles Vogel (213/556-6430). 109 Part IV, Section 2 ABOUT ERT ERT is a leading full-service environmental consulting and engineering firm. With over 5,500 consulting assignments completed over the past 19 years, ERT has earned national recognition for cost-effective solutions to our clients’ problems. ERT’s multidisciplinary staff of over 525 scientists and engineers has ‘‘hands-on’”’ experience assisting the largest corporations in the country. To minimize client costs, provide rapid response to client needs, and ensure quality control, ERT maintains offices and laboratories nationwide. One-half of ERT’s business involves waste management remedi- ation services; the other half involves air and water quality permitting and compliance and other environmental management issues. : CERCLA/SARA Services ERT offers you a very successful track record negotiating solutions to Superfund problems with most EPA regional offices and state agencies. We provide start-to-finish services — from initial strategic planning through re- medial construction management. ERT is one of the largest firms working solely for the regulated community. Our experience includes over 40 National Priorities List (NPL) sites and more than 1000 other industrial haz- ardous waste sites throughout the country. ERT’s approach to Superfund problems is to focus on the critical technical, engineering, and communica- tion issues at the site. We then apply high-quality technical data and analysis to negotiate technically defensible and cost-effective solutions. Our staff members are experienced in working with attorneys to support litigation in- cluding acting as expert witnesses. Project Management ¢ Superfund sites require unusually skilled project managers. ERT project managers understand, from years of experience, how to communicate and work effectively with attorneys, single industrial parties, Potentially Responsible Party (PRP) groups, PRP steering and technical commit- tees, agencies, and community groups. ¢ ERT project managers are practical yet innovative technical leaders. Many have 10 to 20 years’ experience as industrial managers, and have served on PRP committees themselves. ¢ Strong project management can help you negotiate work plans and the use of alternate treatment technology. Negotiations have saved ERT cli- ents as much as $10 million in cleanup costs. Regulatory and Strategic Consulting e ERT staff with in-depth regulatory understanding and knowledge of the implications and interrelations of RCRA, CERCLA, SARA, and other 110 environmental laws, regulations, and policies can be your key to suc- cessful solutions. © Our staff includes former EPA Superfund and RCRA managers who have unique insight to the meaning of the regulations, policies, and guidance documents. ENVIRONET, The Compliance and Audit Information Service from ERT ENVIRONET is a set of seven integrated services which include: an environmental profile of your facility, customized Compliance Handbooks, customized handbook updates every 2 months, audit instructions for each compliance requirement, auditing checklists and worksheets, a weekly bulletin of enacted legislation and promulgated regulations, and a toll-free hotline you can call to discuss new requirements. Remedial Investigations/Feasibility Studies e ERT has performed RI/FS studies for all major industries nationwide and at all types of sites — landfills, manufacturing facilities, and waste- handling facilities — which have included underground storage tanks, buried drums, lagoons and spills, that resulted in soil, groundwater, and other contamination. e ERT can implement an RI/FS controlled by you or can act as your rep- resentative overseeing EPA or EPA contractors to assure the baseline data is accurate and appropriate. © Our multidisciplinary staff conducts virtually every RI/FS task in-house — from site and contaminant characterization including laboratory analysis to bench and pilot testing of alternatives to detailed analysis of the screened alternatives. ¢ ERT’s senior staff includes national and international experts in inciner- ation, biological treatment, solidification and stabilization, and a variety of groundwater remediation techniques. These experts work closely with you to determine what alternative is most cost-effective and feasible for your site. Risk and Endangerment Assessments e ERT toxicologists, chemists, and engineers have completed risk assess- ments for hundreds of hazardous waste sites involving many geologic settings and chemical contaminants. Carefully prepared risk assessments can show that the hazards attributed to a site are overestimated, and thus reduce the cost of remediation. 111 © We can help you compare risks with decontamination standards and evaluate ‘‘how clean is clean’’ for a particular situation, whether you are concerned with individual chemicals or groups of chemicals. ¢ ERT’s engineering and natural resource specialists provide an exception- ally strong combination to evaluate the complex multi-media waste problems required to identify pollutant pathways and document the ex- tent and duration of resource damage. ERT’s unique approach to sampling waste sludge at the bottom of a 20-foot-deep lagoon — using a barge-mounted drilling rig. Groundwater e ERT’s experts evaluate hydrogeologic settings to determine possible pol- lutant pathways and practical treatment alternatives. We can help you determine what contaminants exist in groundwater and what type of monitoring is needed; assist you in locating, installing, and operating your monitoring system; and then recommend and implement cost- effective, engineered remediations. e Authoritative technical information provided by ERT groundwater ex- perts at public hearings and adjudicatory proceedings has been crucial in many situations. ¢ ERT toxicologists, groundwater modelers, geologists, and hydrogeolo- gists are leaders in the preparation, demonstration, and presentation to EPA of Alternate Concentration Limits (ACLs). Remedial Design and Implementation ¢ ERT engineers and construction managers apply in-depth engineering and economic analysis to develop detailed designs and bid specifications to implement the remedy in your Record of Decision (ROD). 112 We evaluate, specify, and manage construction and start-up of both conventional and state-of-the-art treatment systems. Incineration ERT’s in-house staff of air quality and permitting experts offers strong experience in all aspects of incineration evaluation and permitting. ERT’s incineration technology expertise includes evaluation of commer- cial feasibility, engineering design, permitting, siting, waste character- ization, combustion chemistry, emissions characterization, and source sampling and analysis. ERT has extensive experience securing Part B permits for incinerators. We have particularly strong skills in the planning, design, and perform- ance of trial burn programs. Property Transfer, Acquisition, and Divestiture Assessments ERT has performed assessments relating to active manufacturing opera- tions, commercial or industrial real estate developments, plant closure and sale, refinancing of commercial property, restructuring of major corporations, bankruptcy, and foreclosure proceedings. ERT senior technical staff direct site assessments to ensure you get timely, accurate results. Phased work plans minimize expenditures by stopping work when there is sufficient information. We routinely mobilize ERT teams for concurrent site evaluations at many locations. National experience and first-hand knowledge of state requirements allow us to quickly evaluate the environmental liabilities associated with transactions. Underground Storage Tanks ERT has helped clients with tank problems at both inactive sites and operating facilities. Services include screening large numbers of tanks to identify those with problems; investigating problem tanks; designing and installing leak de- tection and/or groundwater monitoring systems; and remedial action, such as tank removal or repair. Emergency Planning and Community Right-to-Know ERT is experienced in providing the broad range of services needed in responding to the requirements of SARA Title III. Services include emission inventories, design and installation of air mon- itoring and detection systems, and process emission control. 113 e ERT has conducted impact assessments for a wide variety of accidental releases, and HASTE — ERT’s computerized Hazard Assessment Sys- tem for Toxic Emissions — provides a state-of-the-art emergency plan- ning and response tool. Air Quality Services ¢ ERT offers you unmatched experience and resources, developed over the last 19 years, for any air quality need related to Superfund or Title III. ERT staff have developed the methods and models used to measure and assess toxic air pollutants. ¢ Services include risk and hazard evaluation, emergency planning, health and safety site monitoring, modeling, source measurement, and ambient perimeter monitoring of your site or facility for toxic pollutants. ERT’s six in-house laboratories are fully equipped to analyze waste, water, soil, sediment, tissue, and air samples. ERT profes- sionals have broad experience in sampling, analysis, program de- sign, method selection and evaluation, and data interpretation. Other ERT Services e Laboratory sampling and analysis ¢ RCRA permitting, compliance, and closure ¢ CAA permitting, compliance, and variances ¢ CWA permitting and compliance ¢ NEPA and state permitting, EIA/EIS reports e Environmental auditing of facilities ¢ Facility closure and decommissioning For additional information on ERT services or fast action on your Superfund problems, call 1-800-722-2440 or the ERT office nearest you. 114 BUSINESS REPLY MAIL FIRSTCLASS PERMITNO.200 CONCORD, MA 01742 POSTAGE WILL BE PAID BY ADDRESSEE A RESOURCE ENGINEERING COMPANY 696 Virginia Road Concord, MA 01742-9990 Attn: Caren Arnstein WDvvuvselEDovsbateatoatallateatoloteladtostsbel NO POSTAGE NECESSARY IF MAILED IN THE UNITED STATES ERT Superfund Reply Card (Please print or attach business card) Name: Title: Company: Address: City: State: ZIP: Telephone: Et: Your Area(s) of Interest O CERCLA Strategy, RI/FSs, and Negotiation OO Property Transfer, Due Diligence © Remedial Design and Implementation OO Risk and Natural Resource Damage Assessments OO Groundwater and Hydrogeological Services OO Emergency Response Planning (HASTE) O Facility Closure and Decommissioning O Laboratory Services CO. Incineration O Air Toxics O Underground StorageTanks OO RCRA Handbook O Compliance Information Service (ENVIRONET) O Air Quality Handbook (Clean Air Act) Comments or Questions Or call ERT at 1-800-722-2440 environmental and engineering excellence SIDLEY & AUSTIN LAW OFFICES Chicago, IL (312) 853-7000 Washington, DC (202) 429-4000 Los Angeles, CA (213) 553-8100 New York, NY (212) 418-2100 ERT. A RESOURCE ENGINEERING COMPANY Los Angeles, CA Orange County (714) 552-3114 Ventura County (805) 499-1922 Fort Collins, CO (303) 493-8878 Washington, DC (202) 463-6378 Chicago, IL (312) 620-5900 Boston, MA (617) 369-8910 Minneapolis, MN (612) 541-1642 Pittsburgh, PA (412) 261-2910 San Juan, PR (809) 769-9509 Houston, TX (713) 520-9900 Dallas, TX (214) 960-6855 Seattle, WA (206) 454-9244 Call Toll Free 1-800-722-2440