The Section’s work to address contamination of the nation’s lands, groundwater, waterways and their sediments, and natural resources are governed principally by two statutes -- the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Passed in 1976, RCRA -- intended as a "cradle-to-grave" regulatory scheme -- was to control the handling of hazardous waste from its creation through any storage, treatment, transportation, and ultimate disposal. RCRA imposes both “affirmative regulatory obligations” and “information-gathering requirements” on entities that are handling solid and hazardous wastes.
Many of the early RCRA cases the Section brought focused on entities that were operating without permits. This was important because, in order for the Environmental Protection Agency (EPA) to properly oversee the regulated community, it needed to know what was being generated by whom, and where; e.g. see U.S. v. Marine Shale Processors, Inc. (W.D. La.). In addition, the Section brought enforcement actions against facilities that were operating in violation of permit conditions or regulatory requirements.
In 1994, for the first time, EES used RCRA to address facility-wide releases of hazardous materials, negotiating with the company even prior to filing the case, in order to craft comprehensive and facility-specific injunctive relief. [(See U.S. v. Eastman Kodak Co. (W.D.N.Y.)] The Section has also brought actions to ensure that entities operating under limited or temporary exemptions to RCRA hazardous waste regulations adhere to the requirements for such operation. [See U.S. v. FMC Corp. (D. Idaho)]. Although less frequent, EES has used RCRA’s endangerment provision to compel parties to clean up a waste site. [See U.S. v. Apex Oil Company (S.D. Ill.) and U.S. v. Valentine (D. WY.)]
RCRA has been a relatively smaller, albeit important, component of EES’ docket because EPA (and states) handle the vast majority of cases administratively. One reason for this is that, unlike some other pollution control statutes, RCRA has no cap on EPA’s ability to collect penalties administratively. Still, the government’s ability to bring civil judicial actions to collect penalties and secure injunctive relief has remained an important backstop to the states’ and EPA’s administrative programs.
CERCLA, enacted several years after RCRA in 1980, is a remedial statute specifically aimed at the remediation of abandoned, contaminated sites, like the infamous Love Canal and Times Beach Superfund sites. [See U.S. v. Occidental Chemical Corp. (Love Canal) (W.D.N.Y.) and U.S. v. Bliss (Times Beach) (E.D. Mo.)]. The following categories of parties (commonly referred to as a “potentially responsible party” or “PRP”) are liable for cleanup or costs of cleanup under
- CERCLA: current owners and operators of sites contaminated with hazardous substances;
- “past” owners and operators who owned or operated at the time of disposal of hazardous substances;
- parties that arranged for disposal or treatment of hazardous substances; and
- parties that transported hazardous substances for disposal or treatment.
CERCLA provides the federal government with a source of funds -- the Hazardous Substance Superfund (the "Superfund") -- to use for cleanup and the ability to cost recover against those responsible for the contamination. Alternatively, CERCLA gives EPA the ability to order parties to clean up a site where conditions may present an imminent and substantial endangerment. The “Superfund” was initially financed primarily through a tax on crude oil and commercially used chemicals. In 1996, the taxing authority expired. Since then, the “Superfund” has received monies through Congressional appropriations and federal cost recovery actions brought by EES.
Since CERCLA’s passage, EES has brought hundreds of actions for cost recovery and/or cleanup, as well as numerous actions for penalties from parties that fail to comply with cleanup orders issued by the Environmental Protection Agency. The sites covered by these actions vary widely and have touched communities across the nation. The types of sites addressed include:
- the classic “toxic soup” landfill site where numerous parties sent their waste for disposal, as well as,
- industrial sites where historic manufacturing/industrial operations resulted in the contamination of the land, surface and or/groundwater in and around the facility.
Unfortunately, many of these sites have become notorious because of the widespread human health impacts the contamination has caused, like the site that became the subject of the well-known book and later movie, “A Civil Action” [see U.S. v. Wildwood Conservation Corp. (Wells G & H) (D. Mass.)], and the asbestos contamination of the town of Libby Montana from vermiculite ore mined by W.R. Grace & Co. EES has also used CERCLA’s authorities in other circumstances, including for example to address the spraying of pesticides on crops in a manner that allowed harmful quantities of the substances to drift into the neighboring community. [see U.S. v. Tropical Fruit Company (D. P.R.)]
Our CERCLA practice has addressed some:
Increasingly, our practice also has involved filing claims in bankruptcy proceedings in order to ensure that an appropriate share of debtors’ available funds address their environmental liabilities [see U.S. v. ASARCO LLC (S.D. Tex.); U.S. v. Raymark Industries (D. Conn.) and U.S. v. W.R. Grace & Co. (Libby Asbestos Site) (D. Mont.)]
In addition to protecting the environment through cleanup actions, CERCLA authorizes federal and state “trustee” agencies and Indian tribes to recover damages for “injury to, destruction of, or loss of” natural resources. Natural resources include land, water, fish, wildlife, and biota. Trusteeship is often shared by federal and state trustees and may also be shared with tribes, and many natural resource damages (NRD) cases are brought jointly.
The legal standard for recovering NRD differs from that for cost recovery and cleanup work, because it requires some causal link between the release of hazardous substances and the injury, and the trustees must quantify the damages (measured either by the cost of restoration or by economic valuation). Both of these are fact-intensive and usually expert-intensive inquiries.
At most sites, NRD is one of the last issues addressed, after the cleanup plan has been selected and/or implemented. Not every CERCLA case has an NRD component, but especially where contamination has reached a river or other substantial water body, NRD can be a very significant part of the case. Refer to: