This next installment of the series on the Superfund program will describe the methods of enforcement utilized by the EPA to ensure that the proper parties pay for the damage. The types of contamination will be detailed and explained, the role of community involvement in the Superfund process will be explored, and the important steps regarding spill response will also be covered.
The EPA has a number of viable avenues for enforcing the proper cleanup of a particular Superfund site. The EPA begins the process by finding the companies or the people that are responsible for the contamination or spill in order to determine whether the cleanup will be conducted by the EPA, a state government agency, or another party.
In some cases, the party responsible may not agree on the decision of the EPA regarding their role in the cleanup process. The EPA response would be to issue an order to get the work done. The EPA can, at the same time, coordinate with the Department of Justice to pursue the responsible party through the federal court system.
In the event that the responsible party handles the cleanup themselves, or contracts out for a company to handle the site cleanup, and the EPA finds that company to be out of compliance they can take action. In that circumstance the EPA can refer to the Department of Justice for enforcement, to assess penalties, and/or take over the work of remediating the site.
The term used by the Superfund to define those involved with a hazardous site is Potentially Responsible Parties (PRP). The EPA utilizes a variety of methods to gather evidence regarding PRPs and their connection to a particular site. They use evidence to match the waste at a site to potential contributors (www.epa.gov).
The EPA also uses the following steps, according to their web site when dealing with PRP:
- Review documents
- Site investigation and sampling
- Title searches
When the appropriate PRP is identified, then the EPA takes the following steps:
- Nature of involvement
- Party’s potential defense
- Applicable exemption
- Amount of waste contributed
- How much the party can pay (www.epa.gov)
In the case that a PRP has gone through bankruptcy proceedings or is in the process of declaring bankruptcy, the EPA would file paperwork through legal channels to be listed as a creditor. The EPA would receive money based on the bankruptcy settlement, or would receive money from the company should it emerge from bankruptcy protection until the remediation costs have been reconciled.
In recent years, corporations, especially larger corporations, have been increasingly resistant to paying for the environmental cleanup costs based on their industrial or business activity on specific sites throughout the United States. These corporate PRPs have been more diligent in their legal defenses trying to find a third party avenue, or some other pathway legally to circumvent payment for the damages their corporate activity potentially caused to the environment.
The EPA, has continued to pursue these PRP corporations and challenged their various legal actions to force them to meet the burden of proof regarding the potential for environmental damage caused by their business activity. The EPA has stated in various materials available to the public that they are compelled by a legal obligation to the American taxpayer to ensure that these corporations pay or reimburse the EPA for the damages caused by the pollution to the environment.
Types of contamination
The Superfund website has an entire section to reference on what the EPA would term as “Environmental Media Contamination” and that can include the following:
- Ground water
- Adverse effect on humans, animals, and plants
- Vapor Intrusions – volatile chemicals from buried waste/ contaminated ground water emit vapors into the air space of office buildings or homes
Superfund treats each of these circumstances under specific protocols for contaminated sediments, ground water, and soil. In NPL sites where the land will usually have a residential use in the future, an intensive amount of soil screening takes place during the remediation and cleanup process.
The EPA has numerous ways in which it provides the community with the opportunity to provide feedback and input to the cleanup efforts on a respective project site.
In fact, community involvement is valued at the EPA and encouraged by their representatives throughout the process (www.epa.gov). During the remediation phase of a cleanup project, the agency appoints a Community Involvement Coordinator. This individual becomes the key person for the gathering and utilization of the input from the surrounding community.
The most influential use of community involvement is handling the input involving the future uses of a site. The residents of the respective community generally have very strong feelings about this issue, and the EPA is very sensitive to those feelings.
If the community wishes to have the land used for recreational functions for example, then the EPA will look to incorporate that feedback into the future plans for the site.
The Community Involvement Coordinator will also provide the details for informational meetings which are open to the members of the residential area surrounding the site. These meetings are an additional way for the community and the EPA to share ideas and gather feedback to move forward on the rehabilitation of a hazardous site.
Another function of the Superfund is to potentially respond to an oil or fuel spill or hazardous substance spill or accidental release.
In all of these scenarios the Superfund will use the National Contingency Plan (NCP) protocols for containing and remediating the spill or accidental release of the potentially dangerous substance.
This role of the EPA via the Superfund legislation is a critical component of the agency and Congress has broadened the scope of the EPA beyond the Clean Water Act to include the response to oil, fuel, chemicals, and other materials designated as hazardous substances.
The NCP also has a Product Schedule which maintains rigorous standards. The products listed on this document are the only products which the EPA can use in response to an incident of this type.
It is important to note that the EPA, through the Superfund spill response mandate has responded to several major spills involving hazardous contaminants since Congress expanded their role in this area. The involvement of the Superfund response protocols have been integral in the protection of our natural resources in these scenarios.
The next part in this series will focus on my home state, New Jersey, which has the dubious distinction of having the most Superfund sites of any state. The current status involving some of the sites located there, the involvement of a new state-funded site cleanup program, and the controversy surrounding some areas which have not been listed on the Superfund program will be examined.