Congressional cleanup for waste site mess?

Motor, Sep 2003 by Nash, Tom

For years, hundreds of automotive repair centers in the Northeast acted responsibly with their waste oil, following the letter of the law and doing what was legally correct. So why is the EPA hassling them?

You may have heard that hundreds of repair shops, service stations, dealerships, municipalities and fleet centers in the New England area are being held financially liable by the EPA for waste oil stored at a New Hampshire site they properly handled and paid to have removed from their facilities over the past several years.

How can this be, if these businesses followed the letter of the law? The answer is: because of another law. It's true. A contradictory but "legal" law, passed by Congress in 1980, now holds these businesses responsible for cleaning up a mess they didn't create.

A History Lesson

Back in 1929, the Beede Waste Oil Corp. in Plaistow, New Hampshire, began accepting for disposal used engine oil, fuel oil, industrial waste oil, recycled antifreeze and other liquid and semiliquid waste. By 1994, the owners abandoned the 39-acre site, leaving it overloaded with waste and creating one huge bowl of "toxic soup." The owners were fined to the extent the law allowed, but those dollars were only a tiny portion of what would be needed to clean up the site. The burden then fell upon the federal government to move in and clean up the mess. The Environmental Protection Agency assessed the site and placed it on the Superfund National Priority List, making it eligible for EPA-controlled action.

In 1980, when the need arose for the federal government to step in and help the states oversee the cleanup of environmental problems, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or "The Superfund Act," as it is more commonly known. The law provides the mechanism that allows the government to clean up those hazardous waste sites and recover the cost by seeking out and fining those responsible and all liable parties. The intention was to place the cost of site cleanup not on the taxpayers as a whole, but only on those who had contributed to the waste problem. This is a legal-but somewhat flawed-stance, under CERCLA.

The initial government funds allocated by the law as seed money to run the system proved grossly inadequate when the number of identified sites doubled and tripled each year. The Superfund proved to be anything but, and the EPA turned to vigorous pursuit of lesser-involved parties. In order to do that, the EPA had to identify each Potential Responsible Party (PRP) and categorize them according to the amount of waste they generated.

Parties who generated 40,000 gallons or more of waste oil sent to the Beede site are considered to be "major generators"-about 50 parties who are responsible for around half the overall known waste transported to the site.

Parties who generated between 1000 and 40,000 gallons of waste oil sent to the site were originally identified as "large de minimis generators." This group comprises about 1400 parties, and they account for almost half the waste oil sent to the site.

Parties who generated between 275 and 1000 gallons of waste oil sent to the site were originally identified as "small de minimis generators." This group of roughly a thousand account for about 5% of the waste.

Parties who generated less than 275 gallons of waste oil sent to the site are considered to be "de micromis generators." This group includes almost one-fourth of all the parties located, yet the total group volume represents less than 1% of the total waste oil sent to the site. The cutoff for de micromis classification of 275 gallons applied at Beede is more than double the 110-gallon cutoff legally required under CERCLA.

The EPA says these de micromis generators of minuscule amounts of hazardous waste are not being sent letters of liability and are not being pursued for cleanup costs or reimbursement in accordance with the EPA de micromis policy, which was recently passed into law by the Small Business Liability Relief and the Brownfields Revitalization Act.

By keeping almost 25% of the parties out of the enforcement process, the EPA minimizes transaction and other enforcement-related costs for all parties involved.

The EPA further states that it will seek to protect the de micromis parties in the Beede case from lawsuits that might be threatened or filed by other PRPs in an attempt to recover costs.

While this policy is designed to let the "little fish" off the hook, it still places much of the responsibility on the average family-owned repair shop or gas station, which complied with state and federal waste laws, but sent a small, steady flow of waste oil to the Beede site over several years.

There is a clause that exempts service stations from responsibility. The Service Station Dealer's Exemption (SSDE) was enacted by Congress as part of the 1986 Superfund Amendments and Reauthorization Act (SARA), but the enforcement policy and implementing regulations were not clear and precise. Corrections and clarification for implementing SSDE became part of the Solid Waste Disposal Act (SWDA), which became law on March 8, 1993, and absolves from responsibility service stations that generated waste on that day and later, when they acted in accordance with the mandates of SWDA. Unfortunately, the law is not retroactive, and therefore does not protect the companies involved with the Beede site, which stopped receiving waste in September of 1992.