Introduction to CERCLA: A Legal Perspective

Transcription

1 Introduction to CERCLA: A Legal Perspective Tribal Lands & Environment Forum August 16, 2017 Tulsa, OK 1319 F Street, NW, Suite 300 Washington, DC

2 2 Background

3 3 A Little History Love Canal, Niagara Falls, NY, 1975 CERCLA, 1980 Superfund Amendments and Reauthorization Act (SARA), 1986 Expiration of Superfund tax on petroleum and chemical companies, 1995

4 4 Main Provisions Hazardous substances, 101 & 40 CFR Appx B, and pollutant or contaminant, 104 Liable parties ( PRPs ), 107 Response actions, 104 National Contingency Plan, 105 and 40 CFR Part 300 National Priorities List, 105 and 40 CFR Natural resource damages, 107(a)(4)(C) & (f) Brownfields & voluntary response, 104(k), 128

5 5 CERCLA Cleanup Process Response action: removal or remedial RSE or Remedial Investigation (RI) Engineering Evaluation/Cost Analysis (EE/CA) or Feasibility Study (FS) Selection of Removal or Remedial Action Interim action or final action Response by EPA or by PRP Consistent with NCP Public information and participation

6 6 Tribal Involvement

7 7 Treatment as a State Definition of state in CERCLA 101 does not include tribes CERCLA 126 provides for TAS for the following provisions: 103(a) - notification of releases 104(c)(2) - consultation on remedial actions 104(e) - access to information, including entry and inspection 104(i) consultation on health issues, conducting health assessments, and roles and responsibilities under the NCP and submittal of priorities for remedial action (but not the listing of at least one facility per state on the NPL)

8 8 Factors Affecting Tribal Role Tribe as lead agency, co-lead with EPA, or supporting agency What are the terms of the settlement agreement, if any? What are the terms of the cooperative agreement, if any? NCP provides for SMOA and cooperative agreements (NCP Subpart F) Is facility on- or off-reservation? Is facility on private or trust land? Is facility owned by non-indian? These factors determine the extent to which a tribe s input will be considered by EPA

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10 10 Eastern Michaud Flats Superfund Site American Falls Reservoir Fort Hall Bottoms Portneuf River FMC-OU Simplot-OU To Pocatello

11 11 Other Tribal Participation Site access issues and notification of nearby residents Cultural resource surveys Native American risk assessments Community involvement plans

12 12 Legal and Practical Issues

13 13 Owner/Operator/Arranger/ Transporter Owner or Operator: currently or when disposal occurred Owner: title and possibly indicia of ownership U.S. v. Newmont USA Ltd., 504 F. Supp. 2d 1050 (E.D. Wash. 2007) Operator: active involvement or control of operations, U.S. v. Bestfoods, 524 U.S. 51 (1998) Arranger: intentionally arrange for disposal Burlington N. & Santa Fe Railway Co. v. U.S., 556 U.S. 599 (2009) Transporter: accept hazardous substances for transport to a disposal or treatment facility selected by the transporter

14 14 Off-Reservation/Disposal No direct tribal role, but consultation Must be impact on the reservation/tribal land Most commonly through surface or ground water Also through air, but see Pakootas v. Teck Cominco Metals, LTD, 830 F.3d 975 (9 th Cir. 2016) Impact on tribal treaty rights to hunt, fish, or gather also could trigger consultation for NRD claim

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17 17 ARARs CERCLA 121(d) Degree of cleanup (2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if. (ii) any promulgated standard, requirement, criteria, or limitation under State environmental or facility sitting law that is more stringent than any Federal standard, requirement, criteria, or limitation,. and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release, the remedial action selected under section 9604 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation.

18 18 ARARs, cont d CERCLA 126 (TAS provision) does not include 121 However, 126 includes 105 (the NCP), and the NCP contains provisions on ARARs NCP allows for tribal ARARs and has been in effect for over 20 years EPA policy provides for tribal ARARs Interim remedies do not need to comply with ARARs, CERCLA 121(d)(4)(A) SBT Soil Cleanup Standards Other exceptions listed in 121(d)(4)(A) include: Human health risk Technically impracticable Inconsistent application by state/tribe

19 19 CERCLA Timing Provision 113(h) Timing of review No Federal court shall have jurisdiction under Federal law. to review any challenges to removal or remedial action selected under section 9604 of this title, in any action except one of the following:. (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title... was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

20 20 CERCLA Timing, cont d Prohibition on challenging remedy prior to its completion However, possibility of challenges at different stages of completion, Frey v. EPA, 270 F.3d 1129 (7 Cir. 2001) (Frey I); Frey v. EPA, 403 F.3d 828 (7 Cir. 2005) (Frey II); Frey v. EPA, 751 F.3d 461 (7th Cir. 2014) (Frey III). Use your attorney to raise issues along the way Use the tribal consultation process Public opinion, PR campaigns, lobbying

21 21 Preemption of Permits CERCLA 121(e)(1) prohibits any federal, state, or local permit from being required for work under a removal or remedial action that is conducted entirely onsite Permit includes all ( administrative ) procedural requirements, per EPA interpretation, 55 Fed. Reg (March 8, 1990) (preamble to NCP) Rhode Island Res. Recovery Corp. v. Rhode Island Dep t of Environmental Mgmt., 2006 WL (D.R.I. 2006). May impact tribal requirements such as tribal business licenses, tribal employment preference laws

22 22 Response Costs & Cost Accounting Tribes can seek response costs, CERCLA 107(a)(4)(A) all costs of removal or remedial action... not inconsistent with the NCP Response costs include cleanup costs, oversight costs, attorney costs Overseeing site activities, reviewing reports Payroll, contractors, attorneys Must have segregated accounts and good cost accounting system