Revitalization-Ready Guide - Appendix B, Local Government Overview of CERCLA, RCRA, PCBs, and Asbestos Regulations

Introduction | Overview of CERCLA | Overview of RCRA | Polychlorinated Biphenyls (PCBs) | Asbestos

Introduction

Local governments may become involved with contaminated properties in several ways, many of which present opportunities to facilitate cleanup or redevelopment. Depending on the type and manner of involvement, the local government may be concerned with potential liability for cleanup costs under various federal, state and local laws. This appendix provides an overview of the key federal laws that may apply to local governments that become involved with contaminated property, with an emphasis on CERCLA and applicable EPA enforcement discretion policies.

Some Potential Avenues for Local Government Involvement at Contaminated Properties:

Promoting redevelopment through municipal incentives such as zoning and use exemptions, tax increment financing, and infrastructure improvements.
Responding to emergencies and potential public health, safety, and environmental hazards.
Foreclosing on and transferring tax-delinquent properties.
Collaborating with a current owner to obtain access, investigate, clean up, and redevelop property.
Acquiring property and “simultaneously” or subsequently transferring it to a third party.
Utilizing a “land bank” or redevelopment agency to acquire, hold, lease, and/or control vacant, abandoned, and tax-delinquent properties.
Acquiring property for short-term and long-term use or redevelopment.
Enforcing zoning and building codes and planning future land use.
Performing demolition, site assessment, investigation, and cleanup activities.
Securing property access and institutional controls such as deed restrictions, environmental covenants, and land use controls.
Participating in public meetings concerning the site property.

Reference:
EPA: Superfund Liability Protections for Local Government Acquisitions after the Brownfields Utilization, Investment, and Local Development Act of 2018

Local governments that are contemplating involvement with potentially contaminated properties should start coordinating with relevant regulatory agencies as early as possible to discuss how the local government may be able to protect itself from being held liable for costs or damages that may be associated with the cleanup and reuse of the property.

EPA encourages the cleanup and revitalization of contaminated properties by addressing potential liability concerns, specifically by clarifying its enforcement intentions by describing circumstances when it may exercise its enforcement discretion to not pursue enforcement actions against certain parties that may fall within a category of liable parties under CERCLA and implementing landowner liability protections provided by law. In addition, many states have created landowner liability protections and voluntary cleanup programs that can coordinate satisfaction of both state and federal legal requirements.

EPA recommends that local governments refer to applicable statutory language, regulations, and EPA guidance documents (referenced throughout this guide) prior to taking any action to acquire ownership or control, or to clean up or redevelop contaminated property. Local governments also should consult with the appropriate state environmental agency and their own legal counsel. EPA’s Regional l offices may be able to provide information and assistance to local governments considering the acquisition of contaminated property.

Prior to acquiring ownership or control of a potentially contaminated property, all parties, including local governments, are strongly encouraged to perform an environmental site assessment, such as “all appropriate inquiries” (AAI)¹, to ensure they make informed decisions regarding the property's environmental conditions. This information can help a local government ensure that its activities do not disturb or exacerbate site contamination. This information also can help to preserve its ability to satisfy certain federal or state liability protections.

Overview of CERCLA

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. §§ 9601 et. seq.) was enacted in 1980 in response to public concern about abandoned hazardous waste sites. CERCLA authorizes the federal government to assess and clean up contaminated sites and provides authority for responding to releases or threatened releases of hazardous substances, pollutants, and contaminants.

CERCLA established a comprehensive liability scheme, which enables EPA to order certain categories of parties to conduct or pay for the cleanup of releases or threatened releases of hazardous substances. EPA may exercise its response authority through removal, remedial, and enforcement actions. The National Oil and Hazardous Substances Contingency Plan (NCP), 40 C.F.R. Part 300, provides the “blueprint” or guidelines for conducting removal and remedial actions under CERCLA.

Many of the properties that local governments may be interested in acquiring may qualify as brownfield sites.

There are different types of contaminated or potentially contaminated properties subject to CERCLA in the United States. Below are two examples of properties subject to CERCLA.

Superfund sites are polluted sites where the federal government is, or plans to be, involved in cleanup efforts. EPA manages these polluted sites through removal (short-term) actions or remedial (long-term) actions. Over 1,300 sites are listed on EPA’s National Priorities List (NPL). Consistent with the NCP, remedial actions financed by the Hazardous Substances Superfund Trust Fund are undertaken only at sites on the NPL.
Brownfield sites are properties where “the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.²” Generally, the cleanup of brownfield sites is less complex than at Superfund sites. States and tribal governments are responsible for establishing and enforcing assessment and cleanup standards for addressing environmental contamination at brownfield sites. States and tribes also oversee cleanup activities at sites enrolled in state and tribal voluntary cleanup programs.

CERCLA Liability Overview

Under CERCLA § 107(a), the following categories of persons may be considered potentially responsible parties (PRPs) and held liable for the costs or performance of a cleanup under CERCLA to address releases or threatened releases of hazardous substances and damages to natural resources:

The owner or operator of the facility;
Any person who owned or operated any facility at the time of disposal of any hazardous substance;
Any person who arranged for the disposal or treatment, or transport for the disposal or treatment, of a hazardous substance at any facility; or
Any person who accepted any hazardous substance for transport to a disposal or treatment facility that such person selected.

CERCLA’s liability scheme helps to ensure that wherever possible, PRPs, rather than the general public, pay for cleanups. Under CERCLA, a PRP’s liability for cleanup is interpreted as:

Strict – A party is liable if it falls within one of the four categories of parties in CERCLA § 107(a) regardless of whether the party was at fault or negligent, or the party’s conduct was in compliance with industry standards;
Joint and Several – If two or more parties are liable for the contamination at a site, any one or more of the parties may be held liable to the government for the entire cost of the cleanup, regardless of its contribution to the site, unless a party can show that the injury or harm at the site is divisible; and
Retroactive – A party may be held liable even if the hazardous substance disposal occurred before CERCLA was enacted in 1980.

Liability Protections under CERCLA

Although a local government may fall into one of the classes of PRPs described above, there are liability protections that may apply to local government acquisitions of contaminated property.

CERCLA provides certain exemptions from liability, as well as defenses to liability. These liability protections are self-implementing. More information on these protections and EPA’s enforcement discretion documents that may apply are addressed in detail in the memo from Director Cynthia Mackey, Superfund Liability Protections for Local Government Acquisitions after the Brownfields Utilization, Investment, and Local Development Act of 2018.

The CERCLA liability protections (exemptions and defenses) that may apply to local government acquisitions of contaminated property include:

CERCLA § 101(20)(D) exempts certain units of local government from the definition of “owner or operator” under specified circumstances.
CERCLA §§ 101(40) and 107(r)(1) offer liability protection from “owner or operator” liability to parties that acquire a contaminated property with knowledge of the contamination and achieve and maintain their status as bona fide prospective purchasers (BFPPs). (See EPA: Bona Fide Prospective Purchasers for additional information.)
CERCLA §§ 107(b)(3) and 101(35)(A) provide liability protection to parties that acquire contaminated property and meet the third-party defense requirements and the innocent landowner (ILO) criteria set forth in those sections.

The method or type of property acquisition by a local government plays a critical role in the application of CERCLA liability protections. If it is unclear whether a particular liability protection may apply, a local government may consider increasing the likelihood that it will not be deemed liable by layering the available CERCLA liability protections. EPA’s enforcement discretion is limited to the unique circumstances of each case and does not protect against third-party suits.³
CERCLA § 101(20)(D), as amended by the 2018 Brownfields Utilization, Investment and Local Development (BUILD) Act, provides liability protections to state and local governments that acquire ownership or control of a contaminated property. However, these protections do not permanently or unconditionally insulate a government entity from potential CERCLA liability.

It is important to note that the exemptions under CERCLA § 101(20)(D) and BFPP liability protection do not shield government entities from any potential liability that they may have as "arrangers" or "transporters" of hazardous substances under CERCLA.

Rather, CERCLA § 101(20)(D) provides a non-exhaustive list of examples of acquisition methods that may exempt local governments from potential liability as an “owner” or “operator” under CERCLA. This includes an exemption from the definition of “owner or operator” for “a unit of State or local government which acquired ownership or control through seizure or otherwise in connection with law enforcement activity, or through bankruptcy, tax delinquency, abandonment or other circumstances in which the government acquires title by virtue of its function as sovereign” if that government entity did not cause or contribute to the release or threatened release.

Overview of RCRA

The Resource Conservation and Recovery Act (RCRA) was enacted in 1976 to address problems from municipal and industrial waste and amended in 1984 to address the prevention, detection and cleanup of releases from petroleum and hazardous substance underground storage tanks.

RCRA establishes the framework for a national system of control for solid waste and underground storage tanks:

Subtitle C focuses on hazardous solid waste.
Subtitle D is dedicated to non-hazardous solid waste requirements.
Subtitle I regulates underground storage tanks (USTs) containing petroleum and hazardous substances.

Most states are authorized by EPA to take the lead in implementing the RCRA program; however, the extent of the authorization may vary from state to state. State authorized programs are required to be no less stringent than the federal requirements. As such, RCRA requirements may vary somewhat from state to state. In general, states regulate underground storage tanks, including cleanup; however, cleanup under RCRA Subtitle C or Subtitle D may be regulated by either EPA or the state. EPA implements the underground storage tank program in Indian Country and provides support to tribal governments.

RCRA Subtitle C

RCRA Subtitle C regulates the generation, transportation, and treatment, storage, and disposal (TSD) of hazardous waste. The RCRA program authorizes EPA to require the investigation and cleanup of hazardous waste disposed of at RCRA Subtitle C facilities. This cleanup process is known as RCRA corrective action. An individual facility can fall into more than one TSD category and have multiple regulated Hazardous Waste Management Units.

Owners/operators of operating RCRA Subtitle C facilities generally must obtain a permit. There are some exceptions to the permit requirement, including generators that store their waste for less than 90 days; however, these exempted facilities still must comply with specific requirements, such as record-keeping, manifesting, and labeling of containers. Hazardous waste transporters must be licensed.

Certain obligations apply to RCRA Subtitle C facilities, including closure/post-closure, corrective action, and financial responsibility requirements. Differences in obligations depend on whether the facility is classified as a permitted TSD facility, interim status TSD facility, or hazardous waste generator.

A local government that acquires or leases a TSD facility that has not completed its closure/post-closure and corrective action requirements may need to conduct those activities. In addition, the local government could potentially assume the responsibility for monitoring and maintaining areas where hazardous waste will remain on-site as part of the permanent cleanup, such as in landfills or other disposal areas. Unlike CERCLA, where the “responsible parties” include previous owners, the RCRA closure/post-closure obligations transfer to the party owning or operating the facility. However, under certain circumstances, EPA does have enforcement authority under RCRA to compel past owners to remediate contamination.

The RCRA Subtitle C financial assurance requirements require owners/operators of TSD facilities (except for states and the federal government) to demonstrate that they can cover the estimated future costs of closure/post-closure. RCRA TSD owners and operators also are required to demonstrate financial responsibility for corrective action that may be necessary to protect human health and the environment. The required financial assurance can be provided via a variety of mechanisms. The Transmittal of Interim Guidance on Financial Responsibility for Facilities Subject to RCRA Corrective Action memo provides a general overview of financial assurance requirements for corrective action.

Before acquiring or leasing a RCRA Subtitle C facility, the local government should contact EPA or the authorized state to discuss the status of closure/post-closure and corrective action activities and financial assurance/liability coverage. If the owner/operator still exists, it may be advisable to meet with them to negotiate the transfer or retention of obligations for conducting closure/post-closure and corrective action activities.

Guidance on RCRA corrective action can be found at RCRA Online. Guidance on RCRA corrective action enforcement can be found at RCRA Corrective Action Cleanup Enforcement.

RCRA Subtitle D

RCRA Subtitle D regulates the disposal of nonhazardous solid waste (such as municipal garbage and industrial waste), as well as hazardous waste exempted from RCRA Subtitle C (such as hazardous waste received from households and conditionally exempt small quantity generators) and disposal of coal combustion residuals (such as in landfills and surface impoundments).

Under RCRA Subtitle D, state and local governments are the primary planning, permitting, regulating, implementing, and enforcement agencies. However, EPA establishes the technical design and operating criteria that states must include in their own regulations to be authorized to implement RCRA.

Some of the types of Subtitle D facilities include municipal solid waste landfill facilities, waste piles, industrial nonhazardous waste landfills, surface impoundments, land application units, and construction and demolition landfills. Solid waste disposal facilities that do not comply with the applicable regulations are considered open dumps and are prohibited. EPA also issued regulations under the Clean Air Act that apply to emissions from large landfills. In addition, certain criteria under the Clean Water Act and other federal statutes may be applicable.

A local government that is considering acquiring or leasing a facility should consider the possibility that past disposal of solid waste may have taken place, particularly if the property has a history of commercial or industrial use. The local government could become responsible for making those facilities compliant with RCRA Subtitle D, including addressing any releases that may have occurred.

Additional information on RCRA (Subtitle D) is available at Resource Conservation and Recovery Act (RCRA) Overview. The standards that apply to municipal solid waste landfill facilities units are discussed further at What is a Municipal Solid Waste Landfill? Information pertinent to the disposal of construction and demolition debris, discussed further at Industrial and Construction and Demolition (C&D) Landfills.

RCRA Subtitle I

The RCRA Subtitle I program regulates the design, construction, installation, operation, testing, release detection, and closure of underground storage tanks (USTs) containing petroleum and hazardous substances. The investigation, remediation and financial responsibility for releases from USTs also are regulated under RCRA Subtitle I.

Not all USTs are regulated under the Subtitle I program. Some of the storage tank facilities that are not regulated under Subtitle I include:

Facilities where less than 10 percent of the combined volume of a tank and associated piping are underground.
Farm and residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes.
Tanks storing heating oil used on the premises where it is stored.
Tanks on or above the floor of underground areas, such as basements or tunnels.
Septic tanks and systems for collecting storm water and wastewater.
Flow-through process tanks.

EPA has approved most state UST programs to operate in lieu of the federal UST program. In states that have not been approved by EPA, both state and federal UST regulations apply. EPA has an enforcement agreement with most of these states that allows the state to lead on enforcement efforts. More information on program approvals for each state is available at State Underground Storage Tank (UST) Programs.

Many of the state UST programs are more stringent or broader in scope than the federal requirements. In some states, for example, tank programs include heating oil and above-ground tanks. While there are no innocent purchaser provisions in RCRA Subtitle I, some state brownfields laws provide relief from state liability for unknown tanks and unknown tank releases for purchasers that conduct appropriate due diligence prior to taking title to a property. The federal UST Lender Liability Rule also provides certain exemptions for lenders and other parties that maintain indicia of ownership in a UST primarily to protect their security interest (40 CFR §§ 280.200-280.230).

Owners or operators of regulated USTs are required to maintain financial responsibility for remediation costs should a release occur. Federal and state governments and their agencies that own USTs are not required to demonstrate financial responsibility; however, local governments must do so. The UST regulations specify several options for demonstrating financial assurance. Additional information on the UST financial responsibility requirements can be found at Resources for UST Owners and Operators.

In addition to Subtitle I requirements, state and local fire and building codes also apply to underground tanks containing petroleum and other flammable and combustible liquids. Tanks containing petroleum located in proximity to navigable waterways of the United States or adjoining coastlines also may be subject to the Spill Prevention Control and Countermeasures (SPCC) requirements, unless they are fully regulated by EPA‘s UST regulations. EPA is the lead federal response agency for oil spills occurring in inland waters, and the U.S. Coast Guard is the lead response agency for spills in coastal waters and deep-water ports. (See Oil Spills Prevention and Preparedness Regulations for more information about the SPCC program.)

Additional information on UST programs is available at Underground Storage Tanks (USTs) or by contacting EPA and state offices. An EPA document, Musts for USTs, describes these requirements. The full text of the laws, regulations, and relevant codes is available at Underground Storage Tanks (USTs) Laws and Regulations. EPA‘s Office of Underground Storage Tanks has additional information and resources relating to corrective action at UST sites at Cleaning Up Underground Storage Tank (UST) Releases and relating to petroleum brownfields at USTs: Petroleum Brownfields.

Polychlorinated Biphenyls (PCBs)

In enacting section 6(e) of the Toxic Substances Control Act (TSCA) Title I, Congress directed EPA to regulate the use and disposal, manufacturing, processing, and distribution in commerce of PCBs. In this regard, TSCA legislated true cradle-to-grave (from manufacturing to disposal) management of PCBs in the United States.

Although TSCA provides the primary regulatory framework for controlling PCBs, these compounds also are regulated to some extent under the Clean Air Act, Clean Water Act, RCRA, and CERCLA.

Section 6(e) of Title I of TSCA cannot be delegated to the states, and therefore jurisdiction remains with EPA. However, several states have established their own laws and regulations concerning PCBs, and in some instances, EPA may coordinate with states.

While PCBs are no longer commercially produced in the United States, local governments that acquire or lease a property may still encounter PCBs in certain equipment or products that were manufactured prior to 1979, such as transformers, capacitors and other electrical equipment, hydraulic fluids, paints, and caulk, and other building materials, or as contamination arising from past use or disposal. Similarly, equipment or property contaminated with PCBs at regulated levels that are not authorized for use, no longer in use or leaking must be properly disposed of or decontaminated.

TSCA is a strict liability statute. Persons responsible for addressing PCB contamination and equipment that contains PCBs under TSCA Title I can potentially include past and new property owners and operators, and other parties that caused or contributed to the PCB contamination.

When considering the acquisition or leasing of property that has undergone a prior PCB cleanup, the local government should consider whether the land use assumptions upon which those cleanups were based are consistent with the intended future use. Certain uses may require more stringent requirements than what was previously acceptable. Such assumptions are often, but not necessarily always, incorporated into deed restrictions on the property.

EPA has published a manual for addressing the cleanup of PCB remediation waste: Polychlorinated Biphenyl (PCB) Site Revitalization Guidance Under the Toxic Substances Control Act (TSCA). A PCB Questions and Answers Manual that responds to a number of specific technical and regulatory issues is available at Revisions to the PCB Q and A Manual. Other information, including an electronic version of the PCB regulations, can be found on EPA‘s PCB website at Polychlorinated Biphenyls (PCBs).

Asbestos

The National Emission Standards for Hazardous Air Pollutants (NESHAP) requirements for asbestos promulgated under Clean Air Act (CAA) §112 establish work practices to minimize the release of asbestos fibers during activities involving the processing, handling, and disposal of asbestos and asbestos-containing material when a regulated facility, such as a building, is being demolished or renovated.
NESHAP also regulates asbestos in active and inactive waste disposal sites. These requirements and standards are described in 40 CFR Part 61, Subpart M. The CAA allows EPA to delegate NESHAP authority to state and local agencies. Even after EPA delegates this responsibility, the Agency retains the authority to oversee delegated programs and enforce NESHAP regulations. Additional information regarding the asbestos NESHAP is available on EPA‘s website at Asbestos.

Besides NESHAP, other federal laws govern how asbestos materials must be handled in schools, public buildings, and commercial or industrial buildings. For example, Title II of TSCA (also called the Asbestos Hazard Emergency Response Act [AHERA]), addresses asbestos in schools. TSCA’s Title II also establishes accreditation requirements for persons conducting asbestos inspections and response actions (abatement activities) in schools, and public and commercial buildings (defined by statute as any non-school building except residential apartment buildings of fewer than 10 units). The Occupational Safety and Health Administration (OSHA) regulates exposure to asbestos in the workplace through the Construction Industry Standards (29 CFR §1926.1101) and General Industry Standards (29 CFR §1910.1001) (see Asbestos). The NESHAP regulations and other relevant laws and regulations are available at Asbestos Laws and Regulations.

A release of asbestos also can cause liability under other federal environmental statutes, including:

Under CERCLA, asbestos is a hazardous substance. Thus, generally, a release or threatened release of asbestos may subject a local government to CERCLA liability. Generally, unless a building or structure is in danger of collapse or could otherwise release asbestos to the environment, EPA‘s Superfund program is not typically involved in asbestos abatement activities. An important exception would be situations where removal of the building or structure is a necessary part of a CERCLA response action (for example, removal of a building or structure is necessary to provide access to the underlying contamination).
While the federal RCRA Subtitle C regulations do not specifically list asbestos as a hazardous waste, EPA does have the authority to require cleanup of asbestos using, for example, section § 7003 of the RCRA statute.

States also may regulate asbestos under their authorized RCRA programs or other laws establishing additional requirements. In addition, requirements governing asbestos are sometimes instituted at the local or county level.

1. All appropriate inquiries (AAI) is a process of evaluating a property's environmental conditions and assessing the likelihood of any contamination. Parties must conduct AAI before acquiring property to obtain certain liability protections discussed below. For more information, see EPA’s Brownfields All Appropriate Inquiries website.
2. Overview of EPA's Brownfields Program, EPA
3. Property transactions with PRPs that EPA deems are intended to interfere with CERCLA’s liability scheme are not eligible for EPA’s enforcement discretion