United States: A Cleaner's Guide To Environmental Liability

This article was originally published in the North Carolina Association of Launderers and Cleaners' carolina clean magazine, Holiday 2017 issue. To view the original publication, click here.

OK, OK, I get it: your mother didn't raise you to be a lawyer. But the exposure to environmental claims that characterizes many drycleaning operations makes it imperative that cleaners understand something about the legal framework for that liability.

I will deal principally with two federal statutes: the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation & Liability Act ("CERCLA", or "Superfund"). These statutes, the regulations intended to implement them, and the judicial decisions that interpret them, are enormously complicated. Don't worry about that. This is not a scholarly law review article; I will concentrate on the laws' potential impacts upon cleaners.

RCRA was adopted in 1976, an early attempt to regulate the "cradle to grave" movement, storage, and disposal of hazardous wastes. Although it is a federal law, it is administered in our State by the North Carolina Department of Environmental Quality ("DEQ") and, in particular, by DEQ's Division of Waste Management ("DWM").

DWM administers a confusing array of environmental regulatory programs, but let's focus on just two groups of them. These clusters of programs are administered by the Hazardous Waste Section and the Superfund Section.

DWM's Hazardous Waste Section consists of two principal branches, the Facility Management Branch and the Compliance Branch. Facility Management is responsible for issuing necessary RCRA permits and for directing the investigation and remediation of releases of hazardous waste to the environment from RCRA-permitted facilities. The Compliance Branch is responsible for ensuring, well, compliance with applicable regulations and permits by hazardous waste generators, transporters, and treatment, storage, and disposal ("TSD") facilities.

You can read the paragraph just above and file away the information in it, then move on. You need to understand it only because these are the folks with whom your hazardous waste transporter and TSD contractor must deal. But you can help them help you if you understand a little about the programs under which they are regulated.

As a cleaner, on the other hand, your company may well be a RCRA hazardous waste generator but your company is almost certainly a "very small generator" or "conditionally exempt small quantity generator", generating less than 100 kilograms (about 220 pounds) of hazardous waste per month. You are responsible for properly characterizing your company's hazardous waste when it goes out the door, but you are exempt from the other, more detailed, regulations applicable to both large and small quantity generators. You are not required to obtain a unique EPA identification number, for example. You are not required to prepare a formal contingency plan for emergencies. You are allowed to accumulate up to 1,000 kilograms of hazardous waste, and there is no time limit on how long it may accumulate on site (word to the wise on that, however: get it out of your plant on a regular basis).

Thus, on RCRA issues, you will almost certainly deal directly with neither of DWM's Hazardous Waste Section branches but, rather, with the Superfund Section's Dry-cleaning Solvent Cleanup Act ("DSCA", but you knew that already) program and, in particular, with DSCA's Compliance Unit. You already know these folks. They inspect plants principally for DSCA best management practices, but also for such RCRA requirements as the prohibition against open storage containers.

That is what you need to know about RCRA, in a nutshell. Let's move on to CERCLA.

RCRA deals with hazardous wastes. CERCLA deals with hazardous substances. For us, the difference is not important. US EPA lists all hazardous substances in the Code of Federal Regulations, and some of them might surprise you. The silver in those dimes in your pocket, for example, is a hazardous substance. Halogenated solvents, including perchloroethylene, are also hazardous substances. Petroleum products, on the other hand, are not – some say this is a testament to the lobbying power of the petroleum industry.

CERCLA was originally adopted in 1980 and substantially amended in 1986. It is complicated; it has kept judges and lawyers scratching their heads for over three decades now and over the years it has generated quite a number of Supreme Court opinions intended to reconcile contradictory interpretations by the federal courts below.

Here is what CERCLA is not. Despite the nickname "Superfund", it is not a huge pot of federal dollars kept on hand to pay for the correction of environmental problems created by private parties. In fact, perhaps the key words in the statute's title are "Compensation" and "Liability". CERCLA is, as far as cleaners may be concerned, a mechanism for raising money to pay for those cleanups – from the guilty and the innocent alike.

CERCLA facilities may originally have been conceived of by the law's drafters as places where massive quantities of hazardous substances were deliberately disposed of, such as the infamous Love Canal site in Niagara Falls, New York, where elementary schools and a kindergarten playground were built directly over or adjacent to a large burial ground for drums full of hazardous substances. But, under current interpretations of the law, even a small accidental spill can provide the basis for CERCLA liability.

Those who face CERCLA liability are referred to as "potentially responsible parties", or "PRPs". PRPs include, for sure, the party that owned or operated a facility when the release took place there. PRPs include, as well, the current post-spill owner, who is presumed to have conducted a pre-purchase environmental investigation and to have therefore bought the facility at a discount. The current post-spill operator on the property is also a PRP, if the operator is a different company from the owner. And the list of PRPs will include any party that transported the hazardous substances to the site at which they were released into the environment (this is sometimes called "transporter liability").

But CERCLA PRPs also include anyone who arranged, by contract or otherwise, for the transportation of the hazardous substances, or for their treatment or disposal at the property at which they were released ("arranger liability").

Cleaners who deal with hazardous substances are almost inevitably exposed to arranger liability.

What is the nature of PRP liability? Well, first of all, it is what lawyers and judges call "strict liability". The liable party need not have caused the release. It does not need to have done anything wrong. It is simply liable because of its status as an owner, operator, transporter, or arranger. There are virtually no exceptions.

And to what degree is any particular party liable? Liability under CERCLA is "joint and several". That is, each and every PRP at a CERCLA site is theoretically liable for the entire expense of the cleanup.

In the real world, however, a single party is seldom responsible for paying for the entire cost of a CERCLA remediation. US EPA or the DEQ Superfund Branch typically holds one or more of the larger PRPs responsible and forces them to begin the cleanup. Then those initial PRPs, by persuasion, negotiation, or litigation, force other PRPs to cover their costs or contribute to the expense of the cleanup.

Incidentally, CERCLA has two statutory mechanisms for compensating the parties that perform the cleanup; cost recovery and contribution. The difference is not important to us, but you should be aware of both terms.

Superfund cleanups can consume millions of dollars. So what are the bottom lines for cleaners?

First, be extremely careful about the waste transporters with which you do business. Know where your hazardous wastes are going, and who will be responsible for their treatment of disposal. Hiring a company that cuts corners could cost your business a lot of money.

Second, if you have any reason to suspect that the property on which you do business has become contaminated by the release of a hazardous substance, be proactive. Get the property tested, and if the release is confirmed get the property into DSCA. The North Carolina DSCA program is probably the best in the nation, and the costs your business will have to cover directly are minimal when compared to the alternative, the expense of a cleanup for which your company could be held entirely liable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions