Regulatory Framework: CERCLA/MTCA/SMS & the Clean Water Act

1. Regulatory Framework: CERCLA/MTCA/SMS & the Clean Water Act Advanced Sediment Conference April 22,2010 Tom Newlon Stoel Rives LLP tanewlon@stoel.com

2. Common Law Origins: Regulating Behavior the Old Fashioned Way • Tort basis: Liability based on claims such as nuisance, trespass and negligence. “You hurt me, so you’ll pay!” • Based in English common law that developed over time through decisions by judges. • Independent judiciary in U.S. making decisions about reasonableness of actions and remedies for breaches of duties.

3. A Post-Industrialization New Deal • The Legislative and Executive branches begin to regulate commerce and behavior during and after the Industrial Revolution. • Instead of relying on the law to evolve through the judicial system, legislation directs the Executive Branch to enforce certain limitations and directly regulate actions before they happen.

4. Command and Control Regulation • Legislative Branch directs Executive Branch agencies to control activities through permit programs or other means of pre-authorization. • Agencies promulgate rules to give additional shape to Legislative Branch directives. • Judicial Branch limited to ruling in claims brought to enforce the law and on assertions that agencies have overstepped the bounds set for them by the Legislative Branch.

5. Two Strands in Environmental Law • Early federal environmental law based on command and control approach. • Permit programs established • Complex rulemaking efforts on rules to apply in permitting context • Media- and activity-based regulatory programs result. • CAA, CWA, TSCA, RCRA • LOTS of regulations

6. CERCLA Arrives Late • Remedial purpose – response to a problem that cannot be solved through regulating ongoing behavior with new permits and authorizations. • Throwback to tort basis for “regulation.” • Certain parties made liable to remedy certain situations. • Creates mechanism for cleaning up past problems and incentive to avoid creating new ones.

7. MTCA Comes Even Later • MTCA also relies on liability to fulfill remedial purpose of the Act. • Both MTCA itself and first set of regulations reflect attempt to avoid some of CERCLA’s pitfalls. • Reliance on independent cleanups • Attempt to facilitate commercial transactions that provide cleanup benefits • Simplified approach (e.g., Method A exists)

8. Sediments: Both Water and Dirt • Clean Water Act (command and control) views sediments as water (SMS are water quality standards). • MTCA views sediments as one more medium, with associated cleanup standards (and contingent liability when those are not met). • There is no “Clean Dirt Act” – only liability associated with dirty dirt/mud.

9. Clean Water Act Programs • CWA Nonpoint Source Programs • Sections 208 and 319 Grants • NPDES Point Source Permits • Stormwater Permits • Technology and Water Quality Based Effluent Limitations on Permittees • TMDLs

10. MTCA Application to “Sites” • Standards set for protectiveness at sites, with an opportunity for site-specific considerations. • Sites defined as everywhere contamination comes to be located. • Potential liability across very large areas if sites expand when cleanup standards lowered.

11. Issues for CWA Permittees • Command and control license/authorization fails to provide solution for MTCA attribution of liability (liability-based program doesn’t mess with permit program) when recontamination above cleanup standards is a certainty. • CERCLA “federally permitted release” exemption not included in MTCA • CERCLA Technical Impracticability waiver also not included in MTCA

12. Reliance on Source Control • Evolving CERCLA approach for major sediment sites relies on future source control efforts. • Risk-based cleanup levels approximately 10 times lower than MTCA “natural background” for PCBs. • Default to “natural background” produces cleanup level that current source control technology cannot practicably meet. • Liable parties to potentially remain liable for decades (until EPA decides that TI waiver can apply).

13. Brownfields 101 • If it is too difficult, complex, uncertain and costly, it will not be provided voluntarily. • Property turnover and redevelopment efforts fuel vast majority of upland soil and groundwater cleanups and much sediment cleanup. • Risks associated with shoreline properties and parcels “up the pipe” from sediment sites quickly become intolerable when CWA answers arenot satisfactory MTCA answers.

14. Practicable Options for Meshing CWA and MTCA • Liability relief for those who meet CWA requirements. • Use Sediment Impact Zones and other available tools widely. • Allow Area Background as a final cleanup. • Adopt CERCLA risk range.