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ENVIRONMENTAL LAW UPDATE JANUARY 2002
On January 11, 2002 President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (the "Act"), often referred to as the CERCLA "Brownfields Amendments". EPA Administrator Christine Whitman described the passage of this legislation as a top environmental priority for the Bush Administration and believes the new law will make the cleanup of brownfields sites a more effective and cooperative effort.
The Act is designed to facilitate the cleanup and revitalization of abandoned brownfield sites. It has several key provisions. First, the Act contains small business and municipal solid waste liability exemptions to federal Superfund liability. Businesses may be shielded from Superfund liability if they did not contribute a significant amount of non-hazardous waste to the site, and did not add any hazardous wastes.
Second, the Act increases funding to state and local governments and provides some regulatory flexibility. $200 million will be provided annually over the next five years to states to clean and revitalize brownfields properties. States will receive additional assurances that the federal government will not later override brownfields cleanup decisions under state programs.
Third, protections are afforded to innocent parties, such as the owners of property adjacent to contaminated sites, prospective site purchasers, and landowners who did not contribute to the contamination of their property.
Title I of the Act, the Small Business Liability Protection Act, provides some liability relief for certain categories of PRPs at CERCLA sites.
De Micromis PRP Exemption. The new de micromis PRP exemption applies to generators or transporters who arranged for the disposal, treatment or transportation of less than 110 gallons of liquid waste or 200 pounds of solid waste before April 1, 2001. The exemption does not apply if the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the response action or natural resource damages, if the person is impeding a response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply. EPA's decision to withdraw the de micromis exemption will not be subject to judicial review.
Municipal Solid Waste ("MSW") Exemption. The new MSW exemption applies to MSW that was generated prior to April 1, 2001. The exemption does not apply to transporters of municipalities that own or operate an MSW landfill. MSW is defined as waste material generated by a household (including a single or multifamily residence); and generated by a commercial, industrial, or institutional entity, to the extent the waste material is essentially the same as waste normally generated by a household. The waste must be collected and disposed with other MSW as part of normal MSW collection services and contain a relative quantity of hazardous substances similar to that contained in waste generated by a typical single-family household.
The MSW exemption applies to an owner, operator, or lessee of residential property that generated municipal solid waste. Also exempt are businesses generating MSW that employed 100 or fewer workers during the three taxable years preceding receipt of a PRP notice and qualify as a small business concern under the Small Business Act; and 501(c)(3) non-profit organizations that employed fewer than 100 paid individuals during the taxable year preceding the PRP notice at the location that generated all of the MSW attributable to the organization.
The MSW exemption will not apply if EPA determines that the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the cleanup or natural resource damages, if the person is impeding the response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply.
Inability To Pay Settlements. The Brownfield Amendments essentially codify the EPA policy on ability to pay determinations. A PRP that can demonstrate an inability or a limited ability to pay response costs may enter into an expedited settlement to resolve its CERCLA liability. EPA must take into account the ability of the person to pay response costs and still maintain its basic business operations. The PRP requesting the settlement must promptly provide EPA with all relevant information needed to determine the ability to pay response costs. The PRP will be required to waive all claims against other PRPs unless EPA determines that requiring a waiver would be unjust. The settlement does not relieve the responsibility to provide any information or access requested in accordance with the settlement or a CERCLA section 104(e) request for information. EPA's decision to enter or refuse to enter into a limited ability to pay settlement will not be subject to judicial review.
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