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Investigative Strategies for Lead-Source Attribution at Superfund Sites Associated with Mining Activities (2017)

Chapter: Appendix A: Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts

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Suggested Citation:"Appendix A: Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts." National Academies of Sciences, Engineering, and Medicine. 2017. Investigative Strategies for Lead-Source Attribution at Superfund Sites Associated with Mining Activities. Washington, DC: The National Academies Press. doi: 10.17226/24898.
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A

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

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1 H.R. 7020, 96th Cong., 2d Sess. (1980).

Suggested Citation:"Appendix A: Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts." National Academies of Sciences, Engineering, and Medicine. 2017. Investigative Strategies for Lead-Source Attribution at Superfund Sites Associated with Mining Activities. Washington, DC: The National Academies Press. doi: 10.17226/24898.
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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.

REFERENCES

Allen, D. 2006. Cost Allocations – Apportioning Environmental Response Costs Among Multiple Parties for the Cleanup of Contaminated Property. Montaq, March 23, 2006 [online]. Available: http://www.mondaq.com/unitedstates/x/38572/landlord+tenant+leases/Cost+Allocations+Apportioning+Environmental+Response+Costs+Among+Multiple+Parties+for+the+Cleanup+of+Contaminated+Property [accessed June 29, 2017].

EPA (U.S. Environmental Protection Agency). 1987. Evaluating Mixed Funding Settlements Under Cercla. October 20, 1987 [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/mixfnd-cercla-mem.pdf [accessed June 28, 2017].

EPA. 1988a. Guidance for Conducting Remedial Investigations and Feasibility Studies. EPA540/G–89/004. Office of Emergency and Remedial Response, U.S. Environmental Protection Agency, Washington, DC. October 1988 [online]. Available: https://semspub.epa.gov/work/HQ/128301.pdf [accessed June 28, 2017].

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].

EPA. 2001. Orphan Share Superfund Reform Questions and Answers [online]. Available: https://www.epa.gov/sites/production/files/2013-10/documents/orph-sh-ref-qa.pdf [accessed June 29, 2017].

Suggested Citation:"Appendix A: Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts." National Academies of Sciences, Engineering, and Medicine. 2017. Investigative Strategies for Lead-Source Attribution at Superfund Sites Associated with Mining Activities. Washington, DC: The National Academies Press. doi: 10.17226/24898.
×
Page 93
Suggested Citation:"Appendix A: Challenges to Obtaining Information about Lead Sources at Superfund Sites Associated with Lead-Mining Districts." National Academies of Sciences, Engineering, and Medicine. 2017. Investigative Strategies for Lead-Source Attribution at Superfund Sites Associated with Mining Activities. Washington, DC: The National Academies Press. doi: 10.17226/24898.
×
Page 94
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The Superfund program of the US Environmental Protection Agency (EPA) was created in the 1980s to address human-health and environmental risks posed by abandoned or uncontrolled hazardous-waste sites. Identification of Superfund sites and their remediation is an expensive multistep process. As part of this process, EPA attempts to identify parties that are responsible for the contamination and thus financially responsible for remediation. Identification of potentially responsible parties is complicated because Superfund sites can have a long history of use and involve contaminants that can have many sources. Such is often the case for mining sites that involve metal contamination; metals occur naturally in the environment, they can be contaminants in the wastes generated at or released from the sites, and they can be used in consumer products, which can degrade and release the metals back to the environment.

This report examines the extent to which various sources contribute to environmental lead contamination at Superfund sites that are near lead-mining areas and focuses on sources that contribute to lead contamination at sites near the Southeast Missouri Lead Mining District. It recommends potential improvements in approaches used for assessing sources of lead contamination at or near Superfund sites.

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