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Atlanta Environmental Law Blog

Pursuing a Superfund citizen suit

In a previous post, we commented that private citizens have the ability to play a role in making cleanup of contaminated sites possible through the EPA’s Superfund program. Here we want to talk a bit about what we meant.

First of all, private citizens can help in alerting authorities to site contamination. This is important, because it is often private parties who first become aware of site contamination rather than the EPA or some other authority. By being informed about the Superfund program and reporting suspected contamination, private citizens can have an active role in EPA enforcement. 

Negotiating Superfund cleanup agreements: work with an attorney

We’ve been speaking in recent posts about the Environmental Protection Agency’s Superfund program, which has the goal of identifying and cleaning up sites contaminated with toxic waste, and then holding responsible parties responsible for that cleanup. In our last post, we spoke briefly about how the EPA generally approaches Superfund cleanup liability.

It is important to point out for readers that the EPA, in handling the issue of liability for toxic waste contamination, always aims to reach a settlement agreement with potentially liable parties rather than to issue an order for payment. For this reason, negotiation is usually part of the process of resolving these cases. Taking an active role in Superfund negotiation is important not only because there may be special circumstances which impact a party’s liability for site cleanup, but also because it can help a party to reach a form of settlement which takes their interests into account. 

Liability for cleanup of Superfund sites, P.2

In previous posts, we’ve been discussing the Environmental Protection Agency’s Superfund Program, and how liability is assigned to parties for the cleanup of sites contaminated with hazardous waste. As we noted, there are various parties that may be potentially responsible for funding a site cleanup effort. Not all parties will face the same liability, though.

Parties which are faced with potential liability for Superfund cleanup efforts should not necessarily assume that they will automatically be on the hook for the entire cost of the cleanup. Some potentially responsible parties have unique circumstances impacting their liability for Superfund cleanup costs. For example, some potentially responsible parties are simply unable to pay for the cleanup, in which case the EPA tries to make special payment arrangements or to reduce the settlement amount. 

Liability for cleanup of Superfund sites

In our last post, we mentioned that there has been opposition to the Environmental Protection Agency’s proposal cleanup of a contaminated site in Brunswick, Georgia. As we noted, the area has already been designated as a Superfund site, meaning that it will be subjected to cleanup by the EPA.

Superfund cleanup efforts, for those not familiar with them, are not ultimately the public’s financial responsibility. Rather, the parties responsible for the contamination are held responsible. According to the EPA, Superfund liability is both strict as well as joint and several. This means that a potentially responsible party may be held responsible for the entire cost of the cleanup when the harm caused by each party cannot be distinguished. 

Brunswick EPA cleanup proposal is too little, too late

A total of 801 acres in Brunswick, Georgia is currently the subject of an environmental dispute involving the question of how ambitious the government should be in cleaning up contaminated grounds. While the site involves extensive contamination involving a number of chemicals, there is a particular concern about dangerous levels of PCBs, lead, mercury, and so-called polynuclear aromatic hydrocarbons.

On the positive side, the Environmental Protection Agency has proposed to clean up the grounds, which is currently designated as a Superfund site. The cleanup proposal, however, has sparked criticism from both environmental activists and local residents for its lack of ambition. While the EPA’s current proposal is to clean up only about 24 acres on the site, one environmental group is saying that at least 81 acres needs to be addressed. 

How does the EPA enforce the Clean Water Act, and how can I help?

Having already looked briefly at the topic of enforcement of the Clean Water Act in our last post, we would like to briefly discuss the issue of how private citizens and organizations may become involved in enforcement of the law.

Private citizens and organizations are able to take legal action for violations of the Clean Water Act standards governing the discharge of liquid waste or sewage or to hold the EPA Administrator accountable for failing to enforce such standards or a specific order. We have previously spoken briefly about the issue of standing in connection with citizen suits, but here we want to mention the issue of notice. 

How does the EPA enforce the Clean Water Act, and how can I help?

The federal Clean Water Act is an important law which establishes the standards that must be followed in discharging pollutants into bodies of water, as well as the standards regulating surface water quality. The federal agency charged with enforcing the Clean Water Act is the Environmental Protection Agency, and the agency has put into place various pollution control programs and established water quality standards for surface water contaminants.

When persons or entities fail to abide by their duties under the Clean Water Act, the EPA is responsible for stepping in and addressing those violations. The manner of enforcement can be either civil or criminal in nature. In civil administrative enforcement, the approach is to bring the offending party into compliance with the law, either by a notice of violation or an order that the individual or entity come into compliance with the law or clean up a site that has been polluted (or pay for cleanup already performed). 

Conservation groups pushing for power company to build cooling tower

Under the federal Clean Water Act, the EPA has the authority to publish regulations which reflect the statute's goals of reinstating and maintaining the integrity of waters. This includes not only preventing pollution, but also ensuring that public facilities don't go unchecked in disturbing the biological integrity of waters.

Last May, the U.S. Environmental Protection Agency put into place new standards which require large power plants to take steps to reduce the destruction of marine life in waters from which they operate. In addition, the rules require that new units at existing facilities which are being built to increase the generating capacity of the facility cut back on the amount of water they draw from rivers for use in cooling water intake. Specifically, the intake flow for these new units is to match the flow level of a closed cycle, recirculation system. Closed-cycle systems are known to be most effective in reducing the destruction of marine life.

Internet communication increasingly impacting toxic tort claims

Toxic tort litigation, as readers may know, can involve a variety of types of injury. Some claims in toxic tort litigation stem from chemical exposure to dangerous pharmaceutical drugs or medical devices. Others involve exposure to toxins in the workplace.

Toxic tort litigation can be based on legal theories of negligence and strict liability. It can also be based on violation of government regulations which require businesses to warn the public of risks regarding their products, to maintain the workplace in a safe condition, and to abide by environmental regulations. In addition to these avenues of litigation, toxic tort claims may also be based on intentional misrepresentation or fraud, such as in instances where the defendant business was aware of the dangerous nature of a substance but marketed a product without in a misleading way. 

Supreme Court to decide on salt water marsh buffer issue

Earlier this week, the state Supreme Court heard arguments in a case involving the question of how large salt water marsh buffers must be under state law, and whether they are even required at all. What gave rise to the legal tangle is a Grady County fishing lake project. We’ve previously written about this issue, which involves a state law prescribing a 25-foot buffer zone around certain types of waters statewide. Salt water marshes had, until recently, been required to have such buffers, but the Georgia Environmental Protection Division removed the requirement earlier this year.

Environmentalists reacted negatively to the change in policy on the basis that the thousands of acres of salt water marshland across the state of Georgia would risk increased pollution without the buffers. The Georgia Court of Appeals struck down the Georgia EPD’s directive and reinstated the buffer requirement. That is the decision that is now on appeal to the Supreme Court. 

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