CHAPTER 13 CONSIDERATIONS IN RESPONDING TO HAZARDOUS WASTE REMEDIATION OBLIGATIONS
| Jurisdiction | United States |
(May 1991)
CONSIDERATIONS IN RESPONDING TO HAZARDOUS WASTE REMEDIATION OBLIGATIONS
Downey, Brand, Seymour & Rohwer
Sacramento, California
The threat of liability imposed in the 1980's by the plethora of federal and state environmental statutes sent shock waves throughout the business and real estate communities and heightened the public's general awareness of liabilities associated with hazardous substances. From the ominous acronyms of CERCLA1 and RCRA2 to the more generic underground storage tank laws, the impact of environmental statutes and the liabilities associated therewith have resulted in dramatic changes in the ways in which businesses conduct their operations and real estate is purchased and sold.
Much has been written on the impact of the federal superfund law (CERCLA) and its state counterparts and the imposition of strict liability on owners and operators of real property and on generators and transporters of hazardous waste. However, the more critical questions often do not concern whether a party is liable, but rather the extent to which a party must remediate a contaminated site and how the party saddled with the cleanup obligation can recover damages resulting from the contamination.
This paper addresses the practical issues raised in the evaluation of contaminated sites and the ability of a responsible party to exercise discretion in the investigation and remediation of the site. Further, the paper focuses on some of the key factors to be examined in determining damages resulting from contaminated sites and on the ability of a responsible party to recover its damages from other responsible parties.
HOW MUCH DO I HAVE TO DO AND WHEN DO I HAVE TO DO IT?
The typical reaction of a property owner or other responsible party faced with hazardous waste contamination is to ignore the problem with the hope that it will go away. Landowner liability and cleanup obligations are primarily driven by regulatory agencies such as EPA or their state counterparts.
[Page 13-2]
Absent some triggering event, most responsible parties do nothing or as little as possible3 . The last decade of enforcement of environmental laws has demonstrated that such a strategy is usually ill-conceived, ineffective and counter-productive. Failure to take swift remedial steps may exacerbate the responsible party's exposure to cleanup costs, third party claims and punitive damages.4 Thus, the prevention or mitigation of resulting harm provides a compelling reason to undertake prompt cleanup of potentially harmful releases of hazardous waste.
An effective strategy to handle a contaminated site must go beyond the issue of government enforcement. The strategy should utilize a cost-benefit approach and should examine a whole host of factors, such as the severity of the contamination, the degree of involvement of regulatory agencies, the responsible party's own economic position and goals, and the existence of other potentially responsible parties.
The specific actions taken to address a contaminated site vary from site to site. Sites placed on the National Priorities List (NPL) or those proposed for placement on the NPL will be treated differently than a leaking underground tank site. Sites involving groundwater contamination may also be treated differently than sites that pose no threat to groundwater. This paper attempts to identify those issues common to a wide variety of contaminated sites and does not focus on any site specific process.
Severity of Contamination
The most significant factor determining the level of response activity is the severity of the contamination. Severity of the contamination is based on the type, quantity and toxicity of the material present, the lateral and vertical extent of the contamination, the impact or threat of impact on surface or groundwater, the beneficial uses of the impacted or potentially impacted groundwater, geology and the proximity of human habitation and threat of exposure.5
[Page 13-3]
Regardless of the severity of the contamination, similar basic activities will be conducted at virtually every contaminated site. First, an investigation must be conducted to determine the existence, nature and scope of the problem. During the investigation process and upon confirmation of the contamination, the vertical and lateral extent of the contamination must be defined. Once the extent of the contamination is known, a plan of remedial action is developed and implemented.6
The severity of the contamination will ultimately determine the scope and the timing of any required investigation and/or remediation. The more severe the contamination, the less discretion a responsible party has in investigating the site, selecting a remedy and determining the time-frame in which the remediation is to be conducted.
The primary factor in determining the severity of contamination is its immediate threat to human health and safety. If contamination presents concerns of human exposure either through immediate contact, airborne exposure or through impact on sources of drinking water, the urgency of corrective action is heightened. Contamination which is not an immediate threat to health and safety, but which creates a future threat, such as the risk of migration of the contaminant or, more importantly, its potential impact on groundwater or drinking water sources, will also heighten the attention to the contamination problem. In California, any subsurface contamination is deemed a threat to the groundwater of the state, regardless of its proximity to the groundwater.7 However, the attention that regulators give to a site involving subsurface contamination will vary greatly and often depend on the proximity of the contamination to the groundwater and the "real" threat posed to the groundwater.
Role of Regulatory Agencies
The governmental regulatory agencies exercising jurisdiction over the contaminated site will also impact the scope of investigation and remediation and ultimately the discretion afforded the responsible party. Throughout the country and within a state or region, agencies and even officials within the same agency may view the urgency or the threat of contamination in different ways. Thus, the general philosophy of the
[Page 13-4]
particular regulatory agency and the responsible official, their own priorities, budgets and staffing needs all impact the level of attention given and ultimately the types of action that will be required.
The "how clean is clean?" debate is a prime example of the varying attitudes existing among regulators. Many agencies embrace strict compliance with published cleanup standards. Others take a more pragmatic approach and are more accepting of risk-based alternatives dependent on the location of the contamination, the ultimate use of the contaminated site and that of the surrounding area, the threat of exposure and the health risks associated with exposure. If the agency embraces a policy that views no benefit to accepting risk-based solutions, it may adopt an unbending application of published cleanup levels. For similar reasons, agency staff less experienced with contaminated sites may also be less willing to exercise discretion and simply point to the published standards as the required cleanup level regardless of risk.8
Agencies may also be less willing to adopt risk-based standards or grant extensions of time in which to conduct investigations or remedial measures if the responsible party has a history of being less than cooperative with an agency or not responsive to its directives. Vigorous negotiation of acceptable cleanup levels and time frames is recommended, but a combative approach to the negotiations usually does little more than alienate the agency and provide an incentive for the agency to develop and follow its own agenda.
The most "successful" cleanups are those that allow the responsible party flexibility in the nature and timing of the cleanup and minimize the involvement of the agencies by keeping them satisfied with respect to the activities being conducted at the site. By assuming responsibility for the site, developing a positive working relationship and making good faith efforts to comply with the requirements of the agency, the responsible party can often find itself with a "sympathetic" agency willing to exhibit a certain degree of flexibility. The sympathetic agency may also be more willing to assuage community concerns and involve other responsible parties.
Local agencies with jurisdiction over development of contaminated areas can add to the level of scrutiny of a cleanup due to the potential of future changes in property use. What may be an acceptable level of risk for a lead agency based on present or proposed use, may not be acceptable to a local agency saddled with responsibility for exposures resulting from a change in use
[Page 13-5]
in the next century. The Southern Pacific Railyard (SP) located in Sacramento, California, is a recent example of the problems that may arise upon the increased scrutiny of an agency not involved at the early stages of investigation. The SP yard is a California State Superfund site for which SP and the California Department of Health Services (DHS) have entered into an enforceable agreement for remediation. The agreement allows SP to conduct partial cleanup by leaving some potentially hazardous substances at the site and imposes constraints on future use of the site. The site, adjacent to the City's downtown business district, has recently been "discovered" for its redevelopment potential and is viewed as a planner's dream. Although the investigation activities conducted by SP to date have been satisfactory in the view of the California DHS (renowned for its ability to strangle most projects) independent consultants retained by the City have raised serious questions as to the adequacy of the investigation and...
To continue reading
Request your trial