Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts
Source identification is not typically problematic for sites that have concentrated waste materials, but challenges arise when sites have large volumes of low-concentration wastes, such as large municipal landfills and mining sites. Such sites are sometimes referred to as special sites, and the US Environmental Protection Agency (EPA) remedial investigation and feasibility study (RI/FS) guidance “does not specifically state how… such sites should be addressed” (EPA 1988a, Section 1.5).
Lack of clear RI/FS guidance creates later challenges for assigning response costs at special sites among responsible parties and challenges to obtaining information about lead-source identification. Response costs at Superfund sites are divided among responsible parties by apportionment or allocation. Apportionment applies only when the liability of responsible parties can be separated; it would apply, for example, at a site where two parties are responsible for separate types of pollution that can be clearly distinguished qualitatively and quantitatively. Allocation applies at most Superfund sites because it is the default process and because separate liability is difficult to establish. At sites where allocation is used, equitable factors are used to assign liability for response costs. Although the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, Superfund) does not prescribe the equitable factors to be used, Gore factors1 are often applied and include the following:
- Ability of the parties to demonstrate that their contributions to a discharge, release, or disposal of a hazardous waste can be distinguished.
- Amount of hazardous waste involved.
- Degree of toxicity of hazardous waste involved.
- Degree of involvement by the parties in generation, transportation, treatment, storage, or disposal.
- Degree of care exercised by the parties with respect to the hazardous wastes concerned.
- Degree of cooperation with public officials to prevent harm to public health or to the environment.
Other equitable factors that have been used include contractual provisions, years of and economic benefit from ownership or operation, knowledge of and responsibility for waste handling and disposal practices, ability to pay, and strength of evidence that identifies responsible parties (Allen 2006).
EPA’s orphan-share policies and guidance (EPA 1996a,b, 1997) and mixed-funding guidance (EPA 1987, 1988b) create additional challenges to identifying the sources of lead associated with Superfund sites. Orphan-share policies, such as the work policy (EPA 1996a) and the cost-recovery policy (EPA 1997), attempt to address the liability for a Superfund site that is attributed to insolvent or defunct parties that cannot pay their share of a site’s cleanup cost. Here, EPA agrees to pay a portion of the orphan share allocated to insolvent or defunct parties; this can accelerate settlement with the viable responsible parties (EPA 2001). Mixed-funding is another mechanism whereby the federal government can accept settlement offers for less than the full response cost at a site. Mixed funding is appropriate under two circumstances: when pursuit of a fully funded settlement might cost the federal government more than accepting a mixed-fund settlement and when a substantial portion of the waste at a site cannot be attributed to known and financially viable parties. By creating opportunities to shift responsibility for response costs, the orphan-share policies and mixed-funding guidance create disincentives to objective disclosure of information about sources of lead at Superfund sites that are associated with lead-mining districts.
Liability for response costs at special sites, including Superfund sites associated with lead-mining districts, can range from hundreds of millions to billions of dollars. A party’s ability or inability to demonstrate its contributions to a discharge, release, or disposal of a hazardous waste can substantially alter the outcome of the allocation process, orphan-share settlement, and mixed-fund settlement. The magnitude of the costs that are subject to allocation creates powerful incentives for potentially responsible parties and the federal government to think and
1 H.R. 7020, 96th Cong., 2d Sess. (1980).
act strategically when it comes to gathering and sharing information about the sources of contamination at Superfund sites, particularly special sites. That situation creates impediments to open development and sharing of source-identification methods and results.
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EPA. 1988b. Interim Policy on Mixed Funding Settlements Involving the Preauthorization of States or Political Subdivision [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/mixfund-preau-mem.pdf [accessed June 29, 2017].
EPA. 1996a. Interim Guidance on Orphan Share Compensation for Settlors of Remedial Action and Non-Time-Critical Removals [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/orphan-share-rpt.pdf [accessed June 28, 2017].
EPA. 1996b. Orphan Share Reform: EPA Increasing Fairness in the Enforcement Process. Fact Sheet, June 4, 1996 [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/orphan-shrref-rpt.pdf [accessed July 11, 2017].
EPA. 1997. Addendum to the “Interim CERCLA Settlement Policy Issued on December 5, 1984” [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/adden-settle-mem.pdf [accessed June 29, 2017].
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