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FAQ - Environmental Law

Spill and Contamination Liability

Spill and Contamination Liability

Introduction

Both state and federal environmental laws impose liability for cleanup on owners, buyers, and operators of property that has been contaminated by hazardous material, as well as on parties who generate and ship hazardous waste to someone else's property for disposal. Two of the most notable of these laws are the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Recovery and Conservation Act (RCRA). Both of these laws are discussed in more detail below.

If you own, operate, or plan to buy property that may be contaminated by a hazardous substance, or if you are engaged in a business that involves transporting hazardous waste to the property of another, you should consult with legal counsel to determine your rights and responsibilities. An attorney experienced in environmental law can answer your questions and zealously represent your interests.

CERCLA

In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, in response to several well-publicized hazardous waste disposal disasters. CERCLA authorizes the Environmental Protection Agency (EPA) to respond to environmental emergencies involving hazardous wastes and contaminants, initiate investigations and cleanups, and take enforcement action against responsible parties. To provide money for these activities, CERCLA established a trust fund financed by federal appropriations and taxes on the manufacture and import of chemicals and petroleum.

CERCLA gives the EPA authority to determine which waste sites should have priority in cleanup efforts. The EPA is required to designate chemicals that would be harmful to the public if released into the environment. Owners and operators of hazardous waste treatment, storage, and disposal facilities must notify the EPA of the amount and types of hazardous substances on site and of any known, suspected, or likely releases into the environment. Based on this information, the EPA has established a "National Priorities List" that ranks the nation's hazardous waste sites in order of priority for cleanup efforts. The EPA maintains information about Superfund sites on its Web site. Interested persons can search for sites in their areas, read descriptions of the sites, and determine the status of cleanup activities.

CERCLA is designed to ensure that those who caused the pollution, rather than the general public, pay for cleanup. In order to be held liable for the costs or performance of cleanup, a party must be a "potentially responsible party." Potentially responsible parties include generators and transporters of hazardous materials, and current and past owners or operators of disposal or treatment facilities. The EPA cleans up "orphan" sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, the EPA obtains private-party cleanup and repayment of government cleanup costs.

CERCLA imposes strict liability on the responsible party, which means that even if the party was not reckless or acting intentionally when the discharge occurred, he or she is responsible for the cleanup costs. Superfund liability is also "joint and several," which means that if two or more parties are responsible for contaminating a site, any one or more of them can be held responsible for the entire cost of cleanup unless a party can show that the injury or harm to the site is divisible. Innocent landowners, or those landowners that had no reason to know of hazardous waste on the property, generally will not be found liable for cleanup costs. Lending institutions often fall into the innocent-landowner category.

Because of the potential for enormous cleanup costs associated with Superfund actions, businesses that own, have owned, or are considering owning contaminated property should seek expert advice. Attorneys who specialize in Superfund issues can advise businesses how to operate to avoid Superfund liability, help them make decisions about purchasing contaminated property, oversee technical consultants, represent them in lawsuits, and help them recover costs from other potentially responsible parties.

RCRA

Hazardous waste traditionally was disposed of on the land of the person or facility that generated the waste. Occasionally, however, the generator would transport the waste to an off-site disposal area. In either case, there often was little or no record keeping, so subsequent landowners were unaware of risks on their property and of waste that was stored improperly, which led to land and water contamination. Before federal regulation of hazardous waste disposal began, the EPA estimates that 290 million tons of hazardous waste was produced in the United States annually, ninety percent of which was disposed of improperly.

In 1976, Congress passed the Resource Recovery and Conservation Act (RCRA) in response to growing public awareness of problems related to hazardous waste disposal. RCRA also deals with solid waste and underground storage tanks. RCRA created a "cradle to grave" system to ensure that hazardous substances are handled safely at every step. Regulations apply to businesses and government facilities that generate, transport, treat, store, and dispose of hazardous materials. The EPA has identified about 500 materials it considers hazardous. A business that thinks it may be dealing with hazardous waste should consult an attorney for guidance.

Hazardous waste treatment, storage, and disposal facilities must obtain permits before they are allowed to operate. Permits typically require facilities to develop emergency plans, find insurance and financial backing, and train employees in handling the hazardous waste. Permits also can include facility-specific requirements such as groundwater monitoring. Separate RCRA provisions address underground storage of hazardous products, including tank design, installation, and operation; monitoring for leaks; and cleanup procedures and funding.

In 1984, Congress amended RCRA, shifting the focus of hazardous waste management from safe land disposal to treatment alternatives. Land disposal is now the last alternative, and is permitted only when the waste is pretreated to meet EPA standards or when the EPA determines that the waste will not migrate from the disposal site. If land disposal is allowed, new landfills must use double liners and groundwater monitoring systems or other systems that are equally effective in preventing the hazardous waste from leaking out of the landfill.

The EPA, or the state environmental agency authorized by EPA, carries out periodic inspections of hazardous waste sites to determine if they comply with their permits and to check on monitoring, operating, and maintenance systems. If it finds violations, the EPA or the state can take administrative action, such as sending a warning letter and ordering testing, or bring a civil or criminal lawsuit. The result of a lawsuit may be a court order for the facility to comply with regulations and to pay a fine. A facility operator who knowingly violates a permit is committing a crime, and may be subject to a penalty and a jail sentence. In addition, the corporate owner may be fined. Citizens also are allowed to bring lawsuits under RCRA against hazardous substance handlers that are creating a danger or violating permits, regulations, or orders.

Conclusion

Hazardous material spills and contamination are costly not only to the environment, but in many cases to the person or entity responsible for the contamination. Attorneys experienced in environmental law can advise clients on how to safeguard the environment and thereby avoid liability for spills and contamination. When looking for an attorney to represent you, be sure to ask questions about his or her training, track record, and experience. When you find the right match, together you and your attorney can work as a team to best meet your legal needs.

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