§3.2 - EPA Enforcement

• Jurisdiction: Washington

§3.2 EPA ENFORCEMENT

CERCLA gives the EPA a variety of enforcement options and tools. CERCLA §104, 42 U.S.C. §9604, grants the EPA broad authority to gather information about a potential release of hazardous substances. (See §3.3(1), below, for the definition of release under CERCLA.) For example, the EPA may require individuals to furnish information about any materials treated, stored, or disposed of at a facility; the nature of a release of hazardous substances from a facility; and/or information concerning a persons ability to pay for cleanup of hazardous substances. 42 U.S.C. §9604(e)(2). (See §3.3(2), below, for the definition of a facility under CERCLA.) Moreover, the EPA is permitted to enter any property where hazardous substances have been stored, treated, or disposed of, or any location where a release or threatened release of hazardous substances has occurred. 42 U.S.C. §9604(e)(3). CERCLA §103, 42 U.S.C. §9603, outlines the notification requirements pertaining to a release of hazardous substances. According to this provision, any person in charge of a vessel or an offshore or an onshore facility with knowledge of a release must immediately notify the National Response Center of such a release. 42 U.S.C. §9603(a). Failure to notify the appropriate agency may result in a fine, imprisonment, or both. 42 U.S.C. §9603(b).

Ultimately, the EPA is authorized to select a remedy to abate contamination at any site where a hazardous substance has been or is threatened to be released, or where there is a release or substantial threat of a release into the environment of any pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare.

Comment: As with other statutes allowing suit where either the government or a private citizen must prove there may be an imminent or substantial endangerment, the actual harm caused by such an endangerment need not be imminentonly the risk or threat of such endangerment need be imminent. United States v. Conserv. Chem. Co., 619 F. Supp. 162, 192 (W.D Miss. 1985) (holding in a CERCLA §106 action that the United States established an imminent endangerment). In addition, [a]n endangerment is substantial if it is serious. Cordiano v Metacon Gun Club, Inc., 575 F.3d 199, 210 (2d Cir. 2009) (granting summary judgment to defendant on RCRA citizen suit claim when plaintiff could not show that the endangerment was imminent and substantial).

If the EPA finds...