Selecting A Remedy For Site Cleanups

As previously defined, a removal action is a short-term control measure implemented to contain the release of a hazardous substance before a remedial action is implemented. A removal action begins with a preliminary assessment and, if necessary, a site inspection, all based on readily available information. According to the NCP, removal actions may also require compliance with any legally applicable or relevant and appropriate standard, requirement, criteria, or limitation (ARARs), depending on the urgency and the scope of the situation.

Remedial actions also begin with a preliminary assessment and a site inspection. The NCP then requires the EPA to develop a plan assessing the remedial alternatives for site cleanup. The CERCLA (§121, 42 USC §9621) establishes cleanup standards containing criteria applicable to remedial actions. The standards typically require that re medial actions comply with ARARs, are cost effective, and use permanent solutions and treatment technologies to the maximum extent practicable.

Following the remedy selection process, the EPA publishes its selected remedy in a record of decision. The selection must be supported by site-specific facts, analysis, and policy determinations. Finally, the EPA develops a remedial design used to implement the remedial action.

Liability, Enforcement, and Settlement

Most superfund cases are resolved through settlements between the potentially responsible parties (PRPs) and the government. Settlements are common because CERCLA's liability scheme imposes substantial penalties on such a broad group of persons. The group of PRPs who can be liable includes:

Both current and past owners of a site Generators of waste who arranged for treatment or disposal of waste at a site Persons who transported waste to a site (CERCLA §107[a], 42 USC 9607[a])

In addition, courts have interpreted the CERCLA to impose strict liability on any and all PRPs. This interpretation means that persons are liable for releases of hazardous substances irrespective of fault. CERCLA liability is also both joint and several. This concept means that any or all PRPs can be accountable for the entire cost of cleanup. Generally, a PRP's liability is unlimited for response costs (CERCLA §107[c], 42 USC 9607[c]).

The CERCLA provides several narrow defenses to its liability scheme. A PRP can avoid liability upon a showing that the release and resulting damages were solely caused by:

An act of God An act of war

An act or omission of a third party who had no contractual relation to the PRP, and the PRP exercised due care and took adequate precautions against any foreseeable acts or omissions (CERCLA§107[b], 42 USC9607[b]).

The limited defenses provided for PRPs combined with the CERCLA's stringent liability scheme make it difficult for PRPs to avoid liability. Therefore, a PRP, once identified, usually enters negotiations for settlement with the EPA.

Settlements are authorized under CERCLA section 122. The most common types of CERCLA settlements involve response actions and result in either the PRP performing the removal or remedial action (CERCLA §104[a], 42 USC 9604[a]) or covering a portion of the cleanup costs. When a PRP negotiates to perform the response action, its duties are explicitly stated in a consent order or decree (CERCLA §122[d], 42 USC 9622[d]). The EPA can also authorize a PRP to perform investigations or studies related to a response action (CERCLA §104[b], 42 USC 9604[b]). These duties are also described in a consent order or decree.

A PRP is bound by any settlement agreement into which it enters. If a PRP fails to comply with a settlement agreement, administrative order, or consent decree, it is subject to civil penalties of up to $25,000 per day for each violation for as long as the violation continues (CERCLA §122[1], 42 USC 9622[1]).

Superfund Use and Financing

The SARA amendments provided for $8.5 billion to be used over a five year period. The Omnibus Budget Reconciliation Act of 1990 appropriated an additional $5.1 billion for the period commencing October 1, 1991, and ending September 30, 1994. These resources can finance site investigation and cleanup costs for hazardous substance releases but are generally not used without attempting to cover the costs through the liabilities of private parties. If insufficient funds are derived from private parties, the EPA uses the superfund monies.

The CERCLA designates several uses for the fund which include:

Covering the cost of government response costs Covering the cost of injury, destruction, or loss of natural resources including damage assessment Providing grants for technical assistance (CERCLA §111, 42 USC §9611)

Use of the fund for natural resource damage,23 however, is contingent upon exhausting all administrative and judicial claims to recover the damage cost from persons who may be liable (CERCLA §111[2], 42 USC §9611[2]).

The superfund generates its monies largely from a network of environmental taxes. These taxes include an excise tax on crude oil and petroleum products, an excise tax on feedstock chemicals, and an environmental tax on corporate profits. Superfund revenues are also generated through appropriations from general revenues, interest, cost recovery actions, and penalties obtained from lawsuits.

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