The Comprehensive Environmental Response, Compensation and Liability Act, aka: Superfund or CERCLA, accomplished the following:

• Provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.
• Enabled revision of the National Contingency Plan, which provides the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants.
• Directed the USEPA to establish reporting quantities for all hazardous substances.

The term “hazardous substance” is defined in CERCLA Section 101(14) and are listed at 40 CFR 302.4.  The hazardous substance list does not contain any previously unlisted substances, instead it includes substances that are listed or designated under other environmental statutes.  They include:

• All hazardous air pollutants (HAPs) listed under Section 112(b) of the Clean Air Act (CAA).  Radionuclides are hazardous substances because EPA designated them generically as hazardous air pollutants under Section 112(b) of the Clean Air Act.
  • Even though the source of their listing is the Clean Air Act, releases of radionuclides to all media, not just to air, are covered by CERCLA’s reporting requirements.
• Toxic pollutants that are subject to pretreatment standards under Section 307(a) of the Clean Water Act (CWA) and toxic pollutants that present an imminent danger to public health when discharged to waters of the United States as designated under Section 311(b)(2)(A) of the Clean Water Act.
  • All Clean Water Act hazardous substances are CERCLA hazardous substances, but only some CERCLA hazardous substances are Clean Water Act hazardous substances.
• Wastes that are regulated as listed and/or characteristic hazardous wastes under the Resource Conservation and Recovery Act (RCRA).  This includes thousands of hazardous wastes that are not specifically listed but that exhibit one or more of the characteristics of ignitability, reactivity, corrosivity or toxicity.  A material is considered to be a release of a CERCLA hazardous substance if the material was a waste prior to release, or if the substance is not cleaned up for reuse and thus must be disposed of as a RCRA hazardous waste after release.
• Any element, compound, mixture solution or substance designated under Section 102 of CERCLA that may present substantial danger to public health or welfare or the environment.
• Any imminently hazardous chemical substance or mixture that EPA has taken action against under Section 7 of the Toxic Substances Control Act (TSCA).  Any hazardous chemical substance or mixture that EPA has taken action against under this Act would automatically become a hazardous substance.  To date, EPA hasn’t designated any hazardous substances under the Toxic Substances Control Act.

What’s interesting is that under the Hazardous Material Regulations, PHMSA/USDOT has its definition of a Hazardous Substance (read:  The PHMSA Definition of a Hazardous Substance).  The PHMSA definition refers to the Hazardous Substance list maintained by the USEPA at 40 CFR 302.4 (see above).

The PHMSA/USDOT definition of a hazardous material (HazMat) at 49 CFR 171.8 indicates that the term includes a Hazardous Substance.  In other words, if a material meets the definition of a hazardous substance, then it is also a hazardous material and subject to the regulations of the PHMSA/USDOT when in transportation or offered for transportation.  It is therefore important to understand what, exactly, a hazardous substance is. (more…)

A release of a Hazardous Substance above the RQ at your facility or during transportation must be reported to the applicable Federal, State, and local emergency response agencies.  To perform the required reporting it is necessary to understand the two separate Acts/regulations that created them and their inter-relation.

The Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA) also known as Superfund, passed in 1980 created a list of Hazardous Substances along with threshold amounts in lbs/kg that triggered reporting if released into the environment in a 24 hour period.  EPCRA (The Emergency Planning and Community Right to Know Act) was passed in 1986 in the wake of the release of a toxic pesticide in Bhopal, India that killed thousands of people.  The purpose of EPCRA was to increase the public’s access to information about the hazardous substances that are or had the potential to be released to the environment.  It also created a list of Extremely Hazardous Substances with their own reporting thresholds and expanded the notification process in the event of a release of a Hazardous Substance (which continued to be regulated under CERCLA as well).

This 1-2 punch of legislation created two sets of regulations that, at times, overlap in their reporting responsibilities.  In the event of a spill or release – either on your property or off – you must be aware of your reporting responsibilities under the applicable regulations.

The table below outlines and summarizes the regulations of CERCLA found at 40 CFR 302 and EPCRA found at 40 CFR 355.

So, in the event of a release of a substance above the RQ in a 24 hour period…

• If it appears only on the CERCLA list (aka:  Hazardous Substance), you must complete the reporting requirements of both CERCLA and EPCRA.
• If it appears on both the CERCLA list (aka:  Hazardous Substance) and the EPCRA list (aka:  Extremely Hazardous Substance), you must complete the reporting requirements of both CERCLA and EPCRA.
• If it appears only on the EPCRA list (aka:  Extremely Hazardous Substance), you must complete the reporting requirements of EPCRA only.

RCRA – the Resource Conservation and Recovery Act – was passed in 1976 to amend the Solid Waste Disposal Act of 1965 and to address a growing national concern over the improper management and disposal of both hazardous and non-hazardous waste.  Subtitle C of RCRA established a system to manage by regulation a hazardous waste from its moment of generation through transportation to its treatment, storage, and finally, disposal.  The name for this comprehensive management system is:  Cradle to Grave.

• Point of Generation = “Cradle”
• Transportation to Treatment, Storage, or Disposal = “to”
• Treatment, Storage, and Final Disposal = “Grave”

While RCRA regulates the generation, transportation, and disposal of hazardous waste, it also has the authority to clean up hazardous waste from active facilities.  RCRA does not, however, have the authority to address the problem of hazardous waste at inactive or abandoned sites or those resulting from emergency response to spills.  Enter CERCLA.

CERCLA – the Comprehensive Environmental Response, Compensation and Liability Act of 1980 – aka:  Superfund, was created to address the problem of hazardous waste and hazardous substances at inactive or abandoned sites or those resulting from emergency response to spills.  It was amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.  Upon a site becoming subject to its regulations (ie. a Superfund Site), CERCLA imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site.  In other words, if you had anything to do with a hazardous substance ending up at a Superfund Site, either by transporting it their yourself or by contracting with others to do it for you, you have the potential to be identified as a Potentially Responsible Party (PRP) and be held responsible for the entire cost of cleaning up the site.  CERCLA’s authority in these matters is broad and has been upheld by the courts.

A generator of hazardous waste must know about CERCLA/SARA as well as RCRA because CERCLA has the authority to force a generator to clean-up a polluted site or scene of an emergency response spill if that generator ever sent any of its hazardous waste to that site.  But it goes further.  CERCLA regulates hazardous substances, not just hazardous waste.  The definition of a hazardous substance includes a hazardous waste, but it also includes 800 other hazardous substances listed in 40 CFR 302.4.  Many non-hazardous wastes, recycled materials, and de-regulated hazardous wastes (Universal Waste, Used Oil, etc.) contain hazardous substances, which includes:

• Copper and Copper Compounds
• Lead and Lead Compounds
• Mercury and Mercury Compounds
• Zinc and Zinc Compounds
• And many more

So, every time you arrange for disposal of a hazardous waste by recycling, treatment, or disposal, you are opening up the potential for clean-up of a site under CERCLA or RCRA.  Every time you dispose of a non-hazardous or de-regulated hazardous waste – even scrap metal for recycling – you are opening up the potential for clean-up of a site under CERCLA if it contains a hazardous substance.  This responsibility exists even if your waste has been re-manifested by a third party prior to its disposal.  You can read more about the Superfund Program here.

What can you do?

1. Accept that some risk is the cost of doing business.
2. Do everything you can to eliminate the generation of waste.
3. Ensure you are familiar with the regulations that apply to your operations and adhere to them.
4. Perform “due diligence” of any facility to which you ship your waste for disposal, treatment, or recycling to ensure they are in compliance with the regulations and that they have measures in place to protect you from future liability such as a large cash reserve or sufficient insurance coverage.

At my training events I address all of the above while meeting the RCRA training requirements for Large and Small Quantity Generators of hazardous waste.  Contact me to discuss your training needs or review my training schedule to find a date and location near you.