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Policy Library

Hold Big Polluters Accountable with State Superfund Laws

Too often, big polluters do not pay the costs for the pollution they dumped into communities. Illegal pollutants in groundwater and soil creates major health hazards and makes polluted land unavailable for development. Environmental cleanup creates jobs, improves health and generates long-term growth by allowing formerly polluted sites to re-enter the economy. Creating and strengthening state Superfund laws through the “Hold Big Polluters Accountable Act” will give states and localities the tools they need to support environmental cleanup, thereby creating jobs and protecting their communities.

The National Landscape

Passed in:

Massachusetts, New Jersey, Pennsylvania

In The News

“'Don't tell me these fumes aren't traveling,' said Jane Hoffman, who has lived next door to Quanta [superfund site]...for almost two years. 'Every day it smells here. It's overwhelming, because I'm basically living next to a tar pit.'”
“In Florida...people living in counties containing Superfund sites were 6% more likely to be diagnosed with cancer than people living in counties without the sites.”
“'Our little village, our name has been forever tainted with a cancer causing toxin,' said resident Michele Baker...'How are we supposed to pick ourselves up by the bootstraps and move on when this is pennies on the dollar?'”

Partners

  • Environmental advocates
  • Families
  • Community development advocates

Opposition

  • Major polluters
  • Insurance companies
Call us for real-time support using this library, problem-solving tips, and follow-up from our team of national experts:
The State Line
1-833-
STATES-1

FAQ

Who does this help?
It’s a crucial step that states can take now to clean up contaminated local sites, with the tools to clean up and hold big polluters accountable for the costs. State- and local-led clean up will protect local residents and drinking water, create jobs, and help make rehabilitated sites newly available for redevelopment.
Is this high-cost to the state?
No. This helps ensure those responsible for devastating pollution are rightfully handed the bill. This proposal gives states and localities more tools to pay for local environmental cleanup by holding big polluters accountable.
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Model Policy

SECTION 1 (TITLE):
This act shall be known as the Hold Big Polluters Accountable Act.

SECTION 2 (PURPOSE):
This act gives states and localities the tools they need to support environmental cleanup, thereby creating jobs and protecting communities.

SECTION 3 (PROVISIONS):

(a) Except as otherwise provided in this section,
  • (1) the owner or operator of a vessel or a site from or at which there is or has been a release or threat of release of oil or hazardous material;
  • (2) any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material;
  • (3) any person who by contract, agreement, or otherwise, directly or indirectly, arranged for the transport, disposal, storage or treatment of hazardous material to or in a site or vessel from or at which there is or has been a release or threat of release of hazardous material;
  • (4) any person who, directly, or indirectly, transported any hazardous material to transport, disposal, storage or treatment vessels or sites from or at which there is or has been a release or threat of release of such material; and
  • (5) any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a vessel or site, shall be liable, without regard to fault,
  • (i) to the state and any subdivisions (such as counties, other appropriate localities) for all costs of assessment, containment, removal and remediation incurred by the state or subdivision
  • (ii) to the state and any subdivisions for all damages for injury to and for destruction or loss of natural resources, including the costs of assessing and evaluating such injury, destruction or loss, incurred or suffered as a result of such release or threat of release,
  • (iii) and to any person for damage to his real or personal property incurred or suffered as a result of such release or threat of release, and
  • (iv) Except as provided in paragraphs (b) and (k), such liability shall be joint and several.

(b) Any person otherwise liable for any costs or damages under section (a) above who establishes by a preponderance of the evidence that only a portion of such costs or damages is attributable to a release or threat of release of such oil or hazardous material for which he is included as a party shall be required to pay only for such portion.

No person who is liable solely pursuant to clause (1) of paragraph (a) and who did not own or operate the site at the time of the release or threat of release in question and did not cause or contribute to such release or threat of release shall be liable to any person who is liable pursuant to clauses (2), (3), (4), or (5) .

(c) Subject to the limitation provided in paragraph (d), there shall be no liability under paragraph (a) for a person otherwise liable who can establish by a preponderance of the evidence,
  • (A) that the release or threat of release of oil or hazardous material and the damages resulting therefrom were caused by:
  • (1) an act of God;
  • (2) an act of war;
  • (3) an act or omission of a third party other than an employee or agent of the person, or than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly, with the person, except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the person establishes by a preponderance of the evidence that he exercised due care with respect to the oil or hazardous material, that he took precautions against foreseeable acts or omissions of any third party and the consequences that could foreseeably result from such acts or omissions, and that he complied with all notification requirements of section seven; or
  • (4) any combination of the foregoing paragraphs, or
  • (B) with respect to liabilities under subclauses (i) and (ii) of paragraph (a), that the substance or amount thereof released or threatened to be released does not represent a long or short term danger to the public health, safety, welfare or the environment.

(d) Any person whose property has been the site of a release of hazardous material for which the department has incurred costs for assessment, containment or removal pursuant to state law, and who can establish by a preponderance of the evidence that he is otherwise eligible for the defenses set forth in paragraph (c) shall be liable to the state and subdivisions only to the extent of the value of the property following state or subdivisions’ assessment, containment, response and remediation actions, less the total amount of costs reasonably paid by said person for carrying out assessment, containment, response and remediation actions in compliance with regulations promulgated under this section.

(e) All persons liable pursuant to this section who are liable for a release or threat of release for which the state or subdivisions incur costs for assessment, containment, removal and remediation shall be liable, jointly and severally, to the state and/or subdivision for their liability as set forth in this section.

In an action for recovery by the state and/or subdivisions of the costs it incurs for assessment, containment and removal, for the purpose of inducing the party in question and others to voluntarily and without delay participate in carrying out and paying for response actions, and not for the purpose of imposing a penalty, the commonwealth shall have the right to seek and recover more than the actual costs it incurs for assessment, containment and removal, subject to the following provisions.

In cases where a person liable pursuant to this chapter has unreasonably or in bad faith failed or refused to comply with an assessment, containment, removal or remediation order, the court shall award the state or subdivisions not less than two times nor more than three times the full amount of its response costs, plus litigation costs and reasonable attorneys' fees, against such liable person. In such an action, the burden of proof shall be on such person to persuade the court by a preponderance of the evidence that it acted reasonably and in good faith in failing or refusing to comply with the order. If such person so persuades the court, such person's liability to the state for response action costs in that action shall be only the state and/or subdivisions’ actual recoverable response costs, plus litigation costs and reasonable attorneys' fees.

In all cases not provided for in the preceding paragraph, the court may award the state and/or subdivision up to three times the full amount of its response costs, plus litigation costs and reasonable attorneys' fees, against a person liable pursuant to this chapter. In such an action, the burden of proof shall be on the state and/or subdivision to persuade the court by a preponderance of the evidence that such person acted unreasonably or in bad faith in not carrying out a response action or actions for which the state and/or subdivision is seeking recovery of more than its actual response costs, aside from litigation costs and reasonable attorneys' fees. If the state and/or subdivision so persuades the court, the court shall use its equitable discretion to determine the appropriate multiple of response costs, not to exceed three times the response costs, which shall be awarded to the stae and/or subdivision against such liable person, plus litigation costs and reasonable attorneys' fees. If the state and/or subdivision does not so persuade the court, such person's liability to the commonwealth for response costs in that action shall be only the department's actual recoverable response costs, plus litigation costs and reasonable attorneys' fees.

(f) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or site or from any person who may be liable for a release or threat of release of oil or hazardous material under this section, to any other person the liability imposed under this section. Nothing in this paragraph shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.

(g) If a person is not otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter, such person shall not become liable solely by the mere act of either retaining or paying for the retention of a waste site cleanup professional licensed pursuant to state law to conduct a response action or portion of a response action at or for a site or vessel; provided, the response action or portion of a response action is conducted in compliance with this section and state law.

(h) Any person who owns a one- to four-family residence that is a site at which the state and/or subdivision has incurred costs for response actions shall not be liable to the state and/or subdivision for those costs, if:
  • (1) he is not a person described in clauses (2), (3), (4), or (5) of paragraph five (a);
  • (2) the site was being used exclusively as a one- to four-family residence throughout his ownership and he claimed permanent residency at the site; and
  • (3) he immediately notified the state or other relevant agency of the release of the oil or hazardous material upon the site as soon as he had knowledge of it.

(i) Notwithstanding any other provision of this chapter, no person who is otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter shall avoid, reduce or postpone such liability or such person's ability to pay for such liability, or be allowed to avoid, reduce or postpone such liability or such person's ability to pay for such liability, by:
  • (1) establishing any form of estate or trust;
  • (2) by establishing indicia of ownership to protect what purports to be a bona fide security interest;
  • (3) by any conveyance or transfer of ownership or control of property or assets of any kind that purports to be bona fide transaction but that is intended to avoid, reduce or postpone such liability or such person's ability to pay for such liability; or
  • (4) by any other means that purport to be bona fide but that are intended to avoid, reduce, or postpone such liability or such person's ability to pay for such liability.

(j) An agency of STATE or a public utility company that owns a right of way that is a site at which the department has incurred costs for response actions shall not be liable to STATE for those costs if the agency or public utility company, respectively, can establish by a preponderance of the evidence that
  • (1) it is not a person described in paragraph (a);
  • (2) no act of the agency or public utility company, or of the agency's or public utility company's employee or agent, caused or contributed to the release or threat of release or caused the release or threat of release to become worse than it otherwise would have been;
  • (3) it notified the department immediately upon obtaining knowledge of a release or threat of release for which notification is required pursuant to, and in compliance with STATE LAW AND REGULATIONS;
  • (4) it provided reasonable access to conduct response actions, and to other persons intending to conduct necessary response actions;
  • (5) it has undertaken a response action or portion of a response action at the site in compliance with STATE LAW AND REGULATIONS; and
  • (6) it did not know or have reason to know of the presence of oil or hazardous material on the site when it came into possession of the right of way.

(k) In any action under this chapter, the liability of a locality when sponsoring and conducting a household hazardous waste collection for injury or loss of property or personal injury or death shall be limited to acts or omissions of the municipality or its agents or employees, during the course of the household hazardous waste collection which are shown to have been the result of negligence or of reckless, wanton or intentional conduct; provided, however, that persons conducting a household hazardous waste collection for a municipality on a volunteer basis shall not incur any personal liability except for acts or omissions which are shown to have been the result of reckless, wanton or intentional conduct.

(l) DEPARTMENT shall be responsible, as provided in this section, for hazardous material remedial programs. The department shall have the authority to require the development and implementation of a DEPARTMENT-approved hazardous material remedial program.

(m) DEPARTMENT shall have the authority to delegate such responsibility for a specific site to the subdivision in which such site is located and to contract with any other person to perform necessary work in connection with such sites. A subdivision also has the authority to impose orders and conduct assessment, containment, and removal and remediation under this section, to be undertaken in accordance with the DEPARTMENT-approved remedial program.

(n)
  • (i) Whenever the DEPARTMENT or a subdivision finds that hazardous material constitutes a significant threat to the environment, it may order any responsible party under section (a) above to develop a hazardous material remedial program providing for assessment, containment, removal and remediation , subject to the approval of the department or subdivision, at such site, and to implement such program within reasonable time limits specified in the order.
  • (ii) Whenever the DEPARTMENT, after investigation, finds:
  • (A) that hazardous wastes at an inactive hazardous waste disposal site constitutes a significant threat to the environment; and
  • (B) that such threat is causing or presents an imminent danger of causing irreversible or irreparable damage to the environment;  and
  • (C) the threat makes it prejudicial to the public interest to delay action until a hearing can be held pursuant to this law, the department may, pursuant to paragraph (iii) of subsection (e) of this section and within the funds available to the department, develop and implement an inactive hazardous waste disposal site remedial program for such site. Findings required pursuant to this paragraph shall be in writing and may be made by the commissioner on an ex parte basis subject to judicial review.

(o) Any order issued pursuant to subsection (n) of this section shall be issued only after notice and the opportunity for a hearing is provided to persons who may be the subject of such order.

(p)
  • (i) Whenever a person ordered to undertake assessment, containment, removal and/or remediation pursuant to paragraph (n) has failed to do so within the time limits specified in the order, the DEPARTMENT or subdivision may develop and implement a hazardous material remedial program providing for assessment, containment, removal and/or remediation of such site. The reasonable expenses of developing and implementing such remedial program by the department shall be paid by the person to whom the order was issued.
  • (ii) In the event that the DEPARTMENT or subdivision has found that hazardous material at a site constitute a significant threat to the environment, but after a reasonable attempt to determine who may be responsible is either unable to determine who may be responsible, or is unable to locate a person who may be responsible, it may develop and implement an hazardous material remedial program for such site. It shall make every effort, in accordance with the requirements for notice, hearing and review provided for in this title, to secure appropriate relief from any person subsequently identified or located who is responsible for the disposal of hazardous waste at such site.
  • (iii) Notwithstanding the above, the DEPARTMENT or state subdivision shall be authorized to develop and implement a hazardous material remedial program if, in its discretion, it is cost-effective to do so.
  • (v) Whenever STATE HEALTH OFFICIAL makes a declaration and finding pursuant to STATE PUBLIC HEALTH LAW, the department may implement a hazardous material remedial program in the same manner as above.
  • (vi) When a subdivision develops and implements pursuant to an agreement with the DEPARTMENT a hazardous material remedial program as approved by the DEPARTMENT for a site which is owned or has been operated by such subdivision or when the DEPARTMENT, pursuant to an agreement with a subdivision, develops and implements such a remedial program, the DEPARTMENT HEAD shall, in the name of the state, agree in such agreement to provide seventy-five percent of the eligible costs of such remedial program for which such subdivision is liable solely because of its ownership and/or operation of such site and which are not recoverable from or reimbursed or paid by a responsible party or the federal government.

(q) Nothing contained within this section shall be construed as impairing or in any manner affecting the right or jurisdiction of the attorney general to seek appropriate relief pursuant to statutory or common law authority.

(r) Any duly designated officer or employee of the DEPARTMENT or subdivision or any other state agency, and any agent, consultant, contractor, or other person, including an employee, agent, consultant, or contractor of a responsible person acting at the direction of the DEPARTMENT or subdivision, so authorized in writing by the DEPARTMENT HEAD or subdivision, may enter any hazardous material site and areas near such site to implement a remedial program for such site, provided the commissioner has sent a written notice to the owners of record or any known occupants of such site or nearby areas of the intended entry and work at least three days prior to such initial entry.