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ENVIRONMENTAL
AND HEALTH &
SAFETY MANAGEMENT
A Guide to Compliance

Nicholas P. Cheremisinoff, Ph.D.
Madelyn L. Graffa
National Association of Safety & Health Professionals

NOYES PUBLICATIONS
Park Ridge, New Jersey, U.S.A.

Copyright 0 1995 by Nicholas P. Chermisinoff and Madelyn L Graffia
No part of this book may be reproduced or utilized in
any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and retrieval system, without permission
in writing from the Publisher.
Library of Congress Catalog Card Number: 95-24875
ISBN 0-8155-1390-9
Printed in the United States
Published in the United States of America by
Noyes Publications
Mill Road, Park Ridge, New Jersey 07656

10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data
Cheremisinoff, Nicholas P.
Ehvironmental and health & safety management : a guide to
compliance / by Nicholas P. Cheremisinoff and Madelyn L. Cnaffia.
p.
an.
Includes index.
ISBN 0-8155-1390-9
1. Environmental law--United States. 2 Industrial safety--Law
and legislation--United States. 3. Industrial hygiene-law and
legislation--United States. I. Graffia, Madelyn, 1962II. Title

KF3775C47 1995
344.73'046--&20
[347.30446]

95-24875

CIP

To the best of our knowledge the information in this publication is accurate; however, the Publisher does not assume
any responsibility or liability for the accuracy or completeness
of, or consequences arising from, such information. This book
is intended for informational purposes only. Mention of trade
names or commercial products does not constitute endorsement
or recommendation for use by the Publisher. Final determination of the suitability of any information or product for use
contemplated by any user, and the manner of that use, is the
sole responsibility of the user. We recommend that anyone intending to rely on any recommendation of materials or procedures mentioned in this publication should satisfy himself as
to such suitability, and that he can meet all applicable safety
and health standards.

...

Vlll

PREFACE
This volume has been prepared for the Environmental and Health &
Safety Manager. The EH&S manager is a new breed of corporate
professionals that are faced with the responsibility of handling both
environmental policy/issues and occupational safety issues within
organizations. Throughout the 1980s there was a proliferation of health
and safety departments, environmental compliance personnel, and
technical people associated with handling pollution control and waste
management. American industry has been over the last several years
contracting and downsizing their operations. In doing so, many
corporations, large and small, are demanding greater responsibilities be
delegated to middle and line function management. In this regard, many
corporations today are moving towards a single management entity, the
EH&S manager, who’s responsibilities require extensive knowledge of
both the environmental statutes and OSHA standards.
This desk reference has been written as a compliance source for the
EH&S manager. The authors prefer to call the EH&S manager an
Occupational Safety Professional and use this designation interchangeably
throughout the text. This individual, as stated above, has a dual
responsibility that requires both technical and managerial skills in two
arenas. In this regard, this book provides the working professional a
reference on both the environmental regulations and industry safety
standards. Additionally, it covers management practices for on-site
hazard materials handling operations and constitutes an important
reference for establishing hazard communication and training programs
for employees.
Nicholas P. Cheremisinoff
Madelyn L. Graffia
vii

CONTENTS

.

1 MANAGING THE ENVIRONMENTAL
1
REGULATIONS AND SAFETY . . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Managing Federal Regulations and Toxic Substances . . . . 3
Occupational Safety Issues . . . . . . . . . . . . . . . . . . . . . . .
4
Environmental Protection Issues . . . . . . . . . . . . . . . . . . . 7
Regulations Affecting Chemical Manufacturing
andUse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
Transportation of Hazardous Materials . . . . . . . . . . . . . . 13
Cleanup of Hazardous Wastes . . . . . . . . . . . . . . . . . . . 14
The Need for Compliance . . . . . . . . . . . . . . . . . . . . . . . 15

.

2 MANAGING FACILITIES. DUE DILIGENCE AND
FACILITY TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . .
Regulatory Overview . . . . . . . . . . . . . . . . . . . . . . . . . .
Principle Federal Regulations . . . . . . . . . . . . . . . . . . . .
Objectives of Property Transaction-Environmental
Site Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . .
Laws Directly Affecting Property Transfers . . . . . . . . . .
What is CERCLA. SARA. Superfund? . . . . . . . . . . . . .
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Superfund . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Comprehensive Environmental Response. Compensation.
and Liability Act . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

31
31
31
33
34
35
35
36
36

x

Contents
38
Notification Requirements . . . . . . . . . . . . . . . . . . . . . .
What Happens if There is a Release? . . . . . . . . . . . . . . . 38
What About Cleanup? . . . . . . . . . . . . . . . . . . . . . . . . .
39
What Are Removal and Remedial Actions? . . . . . . . . . . 40
40
What is Remedial Action? . . . . . . . . . . . . . . . . . . . . . .
What Do Site Evaluation. Remedial Action Selection.
and Cleanup Standards Mean? . . . . . . . . . . . . . . . . . . 41
Where Does the Term "Superfund" Come From? . . . . . . 43
Who Are Responsible Parties and What Are Their
Liabilities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44
45
What Are the Liabilities . . . . . . . . . . . . . . . . . . . . . . .
Lender Liability and the Security Interest
Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
47
The Lender Liability Rule . . . . . . . . . . . . . . . . . . . . . .
What Are Defenses Against Liabilities? . . . . . . . . . . . . . 50
State "Superfund" Programs and Property Transfer
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51
The New Jersey Spill Compensation and Control Act . . . 51
New York State Toxic Cleanup Law . . . . . . . . . . . . . . . 53
The 'Super Lien" Laws . . . . . . . . . . . . . . . . . . . . . . . .
55
The (New Jersey) Industrial Site Recovery Act . . . . . . . . 59
Summary of Federal Regulations . . . . . . . . . . . . . . . . . . 67
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
67
SARA Title 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
67
The Resource Conservation Recovery Act . . . . . . . . . . . 70
A Comparison of RCRA and CERCLA . . . . . . . . . . . . . 71
Underground Storage Tanks . . . . . . . . . . . . . . . . . . . . .
72
Liability and Enforcement Actions Under RCRA . . . . . . 75
Clean Water Act (Federal Water Pollution Control
Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76
NPDES Permit for Storm Water Discharges . . . . . . . . . . 78
Industrial Storm Water Dischargers . . . . . . . . . . . . . . . . 80
Industry-Specific Minimum National Effluent
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80
Publicly-Owned Treatment Works (POTWs) . . . . . . . . . 81
Requirements for Indirect Discharges (National Pretreatment Standards for Industrial Users of POTWs) . . . . . 81
82
Asbestos Regulations . . . . . . . . . . . . . . . . . . . . . . . . .
Federal Regulations Controlling Asbestos (Non-School
87
Setting) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contents

xi

Polychlorinated Biphenyls (PCBs) . . . . . . . . . . . . . . . . 89
EPA’s PCB Regulations . . . . . . . . . . . . . . . . . . . . . . . .
89
Radon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
Toxic Substances Control Act . . . . . . . . . . . . . . . . . . . 91
Federal Insecticide. Fungicide. and Rodenticide Act . . . . 92
92
Safe Drinking Water Act . . . . . . . . . . . . . . . . . . . . . . .
Federal Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . .
93
National Ambient Air Quality Standards . . . . . . . . . . . . 93
The Importance of Due Diligence Audits . . . . . . . . . . . . 95
Consultant Issues and Stafing Considerations . . . . . . . 105
General Staffing Considerations . . . . . . . . . . . . . . . . . 105
Aspects of Cost and Cost Control . . . . . . . . . . . . . . . . 109
Affect of Audit Types on Staffing Requirements . . . . . . 110
Contracting Issues . . . . . . . . . . . . . . . . . . . . . . . . . . .
114
Consultant Liabilities . . . . . . . . . . . . . . . . . . . . . . . . .
124
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
124
124
Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Elements of the Contract . . . . . . . . . . . . . . . . . . . . . .
125
Contract Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
126
127
Report Preparation . . . . . . . . . . . . . . . . . . . . . . . . . .
Third Party Use Disclaimers . . . . . . . . . . . . . . . . . . . .
128
Contract Terminology . . . . . . . . . . . . . . . . . . . . . . . .
128
Hold Harmless and Indemnity Provisions . . . . . . . . . . . 129
Warranties and Guarantees . . . . . . . . . . . . . . . . . . . . .
129
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
130
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
130
130
Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exposure to Client and Third Party Claims . . . . . . . . . 131
Liability for Breach of Contract . . . . . . . . . . . . . . . . . 131
Liability for Breach of Warranty and Fraud . . . . . . . . . 131
Liability for Negligent Acts or Omissions . . . . . . . . . . 132
Liability for Willful Misconduct . . . . . . . . . . . . . . . . . 132
Extent of a Consultant’s Duty . . . . . . . . . . . . . . . . . . . 132
Defining the Duty . . . . . . . . . . . . . . . . . . . . . . . . . . .
133
Liability for Breach of Duty . . . . . . . . . . . . . . . . . . . .
133
Contract Negotiations . . . . . . . . . . . . . . . . . . . . . . . .
133
Insurance Industry’s Liability Issues . . . . . . . . . . . . . . 134
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
134
Insurance Coverage Litigation . . . . . . . . . . . . . . . . . . 135
Insurance Coverage Issues . . . . . . . . . . . . . . . . . . . . .
136
Pollution Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 136

xii

Contents
Expected and Intended Damages . . . . . . . . . . . . . . . . .
Trigger of Coverage . . . . . . . . . . . . . . . . . . . . . . . . .
Covered Damages . . . . . . . . . . . . . . . . . . . . . . . . . . .
Duty to Defend . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Multiple Occurrences . . . . . . . . . . . . . . . . . . . . . . . .
Care. Custody and Control Exclusion . . . . . . . . . . . . .

138
139
141
142
143
144

3 THE CHEMISTRY OF HAZARDOUS MATERIALS . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chemical Properties and Characteristics . . . . . . . . . . .
Corrosive Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . .
Properties of Organic Chemicals . . . . . . . . . . . . . . . . .
Flammables and the Chemistry of Fires . . . . . . . . . . . .
Water Reactive Chemicals . . . . . . . . . . . . . . . . . . . . . .
Substances That Produce Alkaline Aqueous Solutions . .
Substances That Produce Acidic Aqueous Solutions . . .
Oxidation/Reduction Reactions . . . . . . . . . . . . . . . . . .
Poisons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chemical Compatibility . . . . . . . . . . . . . . . . . . . . . . .
Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

145
145
145
152
156
162
169
171
171
172
173
175
177

.

.

4 SAFETY MANAGEMENT PRACTICES FOR
LABORATORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Review of Hazardous Materials Properties . . . . . . . . . .
Flammability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Flammable Solvents . . . . . . . . . . . . . . . . . . . . . . . . .
Purchasing and Receiving Chemicals . . . . . . . . . . . . . .
Inventory and Control . . . . . . . . . . . . . . . . . . . . . . . .
Container Requirements . . . . . . . . . . . . . . . . . . . . . . .
Separation. Segregation and Isolation . . . . . . . . . . . . .
Safe Storage Methods . . . . . . . . . . . . . . . . . . . . . . . .
Housekeeping and Hazard Control . . . . . . . . . . . . . . .
Ventilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hazard Warning Labels . . . . . . . . . . . . . . . . . . . . . . .
Safe Handling Practices . . . . . . . . . . . . . . . . . . . . . . .
General Safety Precautions . . . . . . . . . . . . . . . . . . . . .
Responding to Spills . . . . . . . . . . . . . . . . . . . . . . . . . .
Contingency Plans . . . . . . . . . . . . . . . . . . . . . . . . . . .
Personal Protection Equipment . . . . . . . . . . . . . . . . . .

183
183
184
189
191
191
192
196
200
204
204
207
208
208
209
209
210
212
214

Contents
Handling Wastes

............................

xiii
216

.

5 RESOURCE CONSERVATION AND RECOVERY ACT
AND WASTE ANALYSIS PLANS . . . . . . . . . . . . . . . . . 219
219
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hazardous Waste Classification . . . . . . . . . . . . . . . . . . 220
Ignitability-EPA Hazardous Waste Number DO01 . . . . 221
Corrosivity-EPA Hazardous Waste Number DO02 . . . . 221
Reactivity-EPA Hazardous Waste Number DO03 . . . . 222
EP Toxicity-EPA Hazardous Waste Numbers D004DO17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
222
Hazardous Waste Generators . . . . . . . . . . . . . . . . . . . 225
Waste Accumulation . . . . . . . . . . . . . . . . . . . . . . . . . .
227
RCRA Regulations Pertaining to Laboratories . . . . . . . 229
231
Waste Determinations . . . . . . . . . . . . . . . . . . . . . . . . .
The Waste Analysis Plan . . . . . . . . . . . . . . . . . . . . . .
235

.

6 HAZARD COMMUNICATION . . . . . . . . . . . . . . . . . . . 239
239
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Summary of the Right-to-Know Law . . . . . . . . . . . . . 240
Listing of Hazardous Chemicals . . . . . . . . . . . . . . . . . 241
242
Labeling Requirements . . . . . . . . . . . . . . . . . . . . . . . .
Training Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . .
242
Elements of Right-to-Know Training . . . . . . . . . . . . . 243
Labels and Labeling . . . . . . . . . . . . . . . . . . . . . . . . . .
245
246
Trade Secrets and Labels . . . . . . . . . . . . . . . . . . . . . .
What the Label Should Look Like . . . . . . . . . . . . . . . 247
When Must Containers be Labeled? . . . . . . . . . . . . . . 247
Special Circumstances . . . . . . . . . . . . . . . . . . . . . . . .
247
Containers That Do Not Need to be Labeled . . . . . . . . 248
Products and Substances That Do Not Require
Additional Labeling . . . . . . . . . . . . . . . . . . . . . . . .
249
Understanding Hazardous Substance Fact Sheets . . . . . 251
OSHA 200 Log of Injuries and Illnesses . . . . . . . . . . . 253
Forms of the Chemical . . . . . . . . . . . . . . . . . . . . . . . .
253
Signs and Symptoms of Occupational Hazards . . . . . . 254
Common Methods Used to Recognize. Measure.
Evaluate. and Control Employee Exposure to
256
Hazardous Substances . . . . . . . . . . . . . . . . . . . . . .
Evaluation of Hazard Seriousness . . . . . . . . . . . . . . . . 257
Toxicology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
258

xiv

Contents
Dose-Response Relationships . . . . . . . . . . . . . . . . . . 258
Chemical Safety for General Service Workers . . . . . . . 260
Measurement and Evaluation of Exposure . . . . . . . . . . 266
Industrial Hygiene Monitoring . . . . . . . . . . . . . . . . . . 266
Air Samples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
266
Other Sampling Methods . . . . . . . . . . . . . . . . . . . . . .
267
267
Sampling Devices . . . . . . . . . . . . . . . . . . . . . . . . . . .
268
Planning Sampling . . . . . . . . . . . . . . . . . . . . . . . . . .
Laboratories and Analytical Methods . . . . . . . . . . . . . 268
Interpretation of Industrial Hygiene Monitoring . . . . . . 269
Prevention and Control of Exposure . . . . . . . . . . . . . . 273
What is Substitution? . . . . . . . . . . . . . . . . . . . . . . . .
273
274
What is Isolation? . . . . . . . . . . . . . . . . . . . . . . . . . . .
274
Ventilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Calculating Dilution Airflow . . . . . . . . . . . . . . . . . . . 278
278
Administrative Measures . . . . . . . . . . . . . . . . . . . . . .
Job Rotation vs. Frequent Breaks . . . . . . . . . . . . . . . . 278
Radiation Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . .
279

.

7 PROCESS TECHNOLOGY SAFETY AND

HAZARD ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . .
283
283
Process Safety Information . . . . . . . . . . . . . . . . . . . . .
Hazards of Chemicals . . . . . . . . . . . . . . . . . . . . . . . . .
284
Process Technology . . . . . . . . . . . . . . . . . . . . . . . . . . .
289
Process Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . .
292
297
Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
298
Process Hazard Analysis . . . . . . . . . . . . . . . . . . . . . . .
Types of Analyses . . . . . . . . . . . . . . . . . . . . . . . . . .
299
Analysis Teams . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
302
Conducting A Process Hazard Analysis . . . . . . . . . . . . 303
Analysis Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . .
304
Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
306
Pre-Startup Safety Reviews . . . . . . . . . . . . . . . . . . . .
307
Hazard Evaluation Techniques . . . . . . . . . . . . . . . . . . 308
The Need for Hazard Evaluation . . . . . . . . . . . . . . . . . 310
Safety Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
314
316
Checklist Analysis . . . . . . . . . . . . . . . . . . . . . . . . . .
Relative Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . .
318
Preliminary Hazard Analysis . . . . . . . . . . . . . . . . . . . 320
What-If Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . .
321
322
What-If/Checklist Analysis . . . . . . . . . . . . . . . . . . . .

Contents

xv

Hazard and Operability Study . . . . . . . . . . . . . . . . . . .
Failure Modes and Effects Analysis . . . . . . . . . . . . . .
Fault Tree Analysis . . . . . . . . . . . . . . . . . . . . . . . . . .
Event Tree Analysis . . . . . . . . . . . . . . . . . . . . . . . . .
Cause-Consequence Analysis . . . . . . . . . . . . . . . . . . .
Human Reliability Analysis . . . . . . . . . . . . . . . . . . . .
Technique Selection . . . . . . . . . . . . . . . . . . . . . . . . .

323
326
329
330
331
331
332

8 HAZARDOUS WASTE TRANSPORTATION . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transporter Requirements . . . . . . . . . . . . . . . . . . . . .
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hazardous Waste Regulations . . . . . . . . . . . . . . . . . . .
TSD Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transportation of Hazardous Waste Samples . . . . . . . .
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

337
337
337
340
345
345
349
350
351

.

.

9 TREATMENT. DISPOSAL AND WASTE MINIMIZATION MANAGEMENT PRACTICES . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regulatory Framework . . . . . . . . . . . . . . . . . . . . . . . .
Waste Minimization and Onsite Treatment . . . . . . . . .
Commercial Facilities . . . . . . . . . . . . . . . . . . . . . . . . .
Waste Minimization Practices . . . . . . . . . . . . . . . . . . .
Waste Storage Practices . . . . . . . . . . . . . . . . . . . . . . .

.

10 MANAGING UNDERGROUND STORAGE TANKS . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Measure to PreventDetect Releases . . . . . . . . . . . . . . .
General Operating Requirements . . . . . . . . . . . . . . . .
Responses to Leaks or Spills . . . . . . . . . . . . . . . . . . . .
Closure and Postclosure Requirements . . . . . . . . . . . .

.

11 FEDERAL INSECTICIDE. FUNGICIDE AND
RODENTICIDE ACT . . . . . . . . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pesticide Registration . . . . . . . . . . . . . . . . . . . . . . . . .
Use of Restricted Use Pesticides . . . . . . . . . . . . . . . . . .
Experimental Use Permits . . . . . . . . . . . . . . . . . . . . . .
Administrative Review; Suspension . . . . . . . . . . . . . . .

353
353
353
355
357
360
367
369
369
371
372
373
373
387
387
388
389
389
389

xvi

Contents

Registration of Establishments . . . . . . . . . . . . . . . . . .
Recordkeeping and Inspections . . . . . . . . . . . . . . . . . .
Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other Major Issues of HFRA . . . . . . . . . . . . . . . . . . .
Disposal. Storage. and Transportation . . . . . . . . . . . . .

.

390
390
391
391
393

12 MANAGING WORKER PERSONAL PROTECTIVE
EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
397
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
397
Developing A PPE Program . . . . . . . . . . . . . . . . . . . .
398
Program Review and Evaluation . . . . . . . . . . . . . . . . . 399
Selection of Respiratory Equipment . . . . . . . . . . . . . . . 400
Protection Factor . . . . . . . . . . . . . . . . . . . . . . . . . . .
405
Self-contained Breathing Apparatus (SCBA) . . . . . . . . 406
Supplied-Air Respirators (SARs) . . . . . . . . . . . . . . . . 409
Combination SCBNSAR . . . . . . . . . . . . . . . . . . . . . .
411
Air-Purifying Respirators . . . . . . . . . . . . . . . . . . . . .
411
Selection of Protective Clothing . . . . . . . . . . . . . . . . . . 414
Selection of Chemical-Protective Clothing (CPC) . . . . . 414
Permeation and Degradation . . . . . . . . . . . . . . . . . . . .
415
Heat Transfer Characteristics . . . . . . . . . . . . . . . . . . . 425
Other Considerations . . . . . . . . . . . . . . . . . . . . . . . . .
425
Special Conditions . . . . . . . . . . . . . . . . . . . . . . . . . .
426
Selection of Ensembles . . . . . . . . . . . . . . . . . . . . . . . .
426
Level of Protection . . . . . . . . . . . . . . . . . . . . . . . . . .
426
PPEUse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
432
Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Work Mission Duration . . . . . . . . . . . . . . . . . . . . . . .
433
433
Air Supply Consumption . . . . . . . . . . . . . . . . . . . . . .
SuitEnsemble Permeation and Penetration . . . . . . . . . . 434
434
Ambient Temperature . . . . . . . . . . . . . . . . . . . . . . . .
Coolant Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . .
435
Personal Use Factors . . . . . . . . . . . . . . . . . . . . . . . . .
435
436
Donning an Ensemble . . . . . . . . . . . . . . . . . . . . . . . .
Respirator Fit Testing . . . . . . . . . . . . . . . . . . . . . . . .
436
In-Use Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . .
439
439
Doffing an Ensemble . . . . . . . . . . . . . . . . . . . . . . . . .
Clothing Reuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
440
Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
441
Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
445
Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
445

Contents

Heat Stress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Physical Condition . . . . . . . . . . . . . . . . . . . . . . . . . .
Level of Acclimatization . . . . . . . . . . . . . . . . . . . . . .
Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Weight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xvii

Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

446
447
448
451
452
452
453
453
453
454

......................

455

GLOSSARY OF EH&S TERMS

ABBREVIATIONS COMMONLY USED BY EH&S

....................................

489

........................................

495

MANAGERS
INDEX

1 MANAGING THE ENVIRONMENTAL
REGULATIONS AND SAFETY

INTRODUCTION
Managing environmental and safety issues is challenging, timeconsuming, and expensive. Being responsible for these matters is more
than just saving money and protecting the company. The environmental
and health and safety (EH&S) manager must also protect him or herself
because the current laws make the individual personally liable for any
wrongdoing, even if there is no malicious intent.
Pollution control generally involves preventing the facility from
harming people or the environment and mitigating the effects of any
pollutant emissions. Harm to people or the environment is difficult to
prove so regulations are increasingly designed to eliminate
contamination. Effluent standards are based on health effects studies but
because of factors such as cancer’s long latency period, and the lack of
human exposure data, standards generally include a large safety factor.
The environmental manager must recognize that there is little margin for
error when it comes to contamination issues.
It is also important to recognize that erring on the side of safety is
usually the least expensive and most legally defensible position in the
long run. Taking that position can lead an organization or company to
more efficient use of raw materials, recycling, and other waste
minimization tactics. However, such a program requires balance. Risks
cannot be eliminated and too much error on the side of safety can result
in costly overkill. The safety manager is called upon to manage both
risk and resources.
Managing hazardous materials generally involves the following four
major issues: identification (air and water emissions, rinsewaters, spent
1

2

Environmental and Health

raw materials, etc.), storage and handling, disposal and shipping, and
recordkeeping. An industrial facility that does not have programs
addressing all four of these issues should essentially not be handling
hazardous materials.
The environmental and health-safety manager, referred to in this
textbook as an Occupational Safety Professional (OSP), must know what
his or her facility is purchasing, generating, storing, treating and
disposing of in order to effectively satisfy the "cradle to grave"
provisions of RCRA (Resource Conservation and Recovery Act). Good
recordkeeping and communication are essential to several key elements
of any pollution control and prevention program: emergency procedures,
contingency planning, and employee training. For example, if a caustic
line from a plating operation building breaks, how is the waste material
kept out of the storm sewer in order to prevent a NPDES (National
Pollutant Discharge Elimination System) violation and how large can the
spill be before it constitutes a reportable quantity (RQ) under CERCLA
(Comprehensive Environmental Response Compensation and Liability
Act)? Contingency plans must describe actions the facility will take to
minimize hazards in the event of a release and employees must be trained
to respond appropriately.
Well run organizations are those which have established formal
Safety and Hazardous Materials Management Programs. These programs
establish corporate policy, which addresses pertinent aspects of OSHA
(Occupational Safety and Health Act), TSCA (Toxic Substances Control
Act), CERCLA, SARA (Superfund Amendments and Reauthorization
Act), RCRA, the Hazardous Materials Transportation Act (HMTA), and
other applicable regulations. The need for an integrated program and
policy uniting everything from purchasing through use and disposal can
be demonstrated by considering what happens if a hazardous material is
purchased or generated without knowledge of the regulations. OSHA
regulations could be violated because precautions for employee exposure
are not taken, SARA could be violated because the requirement for
notification of the presence of listed material has not been met, and
RCRA regulations could be violated if waste from the material is not
stored or disposed of properly. There are also potential violations of
other acts such as the Clean Air Act and Clean Water Act.
The OSP must become integrated into all aspects of a facility's
operations. A properly informed OSP helps limit the amount of a
hazardous material stored onsite, monitors the use of the material so that

Managing the Environmental Regulations and Safety

3

right-to-know regulations are not violated, and assesses the rate at which
a waste is generated to minimize spill potential and storage and disposal
difficulties.
Disposal issues are increasingly important because federal regulations
are dynamic, or changing. Waste minimization requirements and the
land disposal ban are making waste production more expensive. RCRA
requires that storage locations be specific. There must be spill
containment, supplies for cleanup, controlled access, and segregation of
incompatible materials. In addition, RCRA holds that a hazardous waste
storage data area cannot be subject to a 100-year flood. Both on-the-job
training and a written training program are necessary. Fines may result
if the training is not properly documented and employees are not tested
for competency.
The OSP must also be concerned with problems of acquisition and
divestiture. A company cannot control pollution or its hazardous wastes
by selling contaminated properties or assets, however, it can certainly
add to its liabilities by purchasing contaminated property. Unfortunately,
many companies already own contaminated property with projected
remedial actions that may cost millions of dollars. The OSP may be
called upon to plan, negotiate, and manage these expensive, and
complicated hazardous waste cleanups. Too often, remedial action
contracts permit a consultant to design and build with little or no
oversight. If such contracts are not managed properly cost overruns and
disputes can be expected. Bidders must be prequalified. Contract
documents must be precise and accurate. There must be a management
plan that includes numerous inspections and thorough documentation.
There must also be emergency plans in the event that something goes
wrong such as a spill, a fire, or explosion.

MANAGING FEDERAL REGULATIONS AND
TOXIC SUBSTANCES
Toxic substances can create pervasive environmental and public health
problems. The sheer volume of toxic materials manufactured and the
many avenues of exposure (occupational, consumer use, and
environmental residues), greatly increase the unacceptable health and
environmental risks from many of these substances. Public policy has
traditionally been aimed at protecting the public from toxic substances.

4

Environmental and Health

For example, during the latter half of the nineteenth century, federal laws
were passed to prohibit the adulteration of patent medicines, to require
the contents of certain consumer products to be truthfully labeled, and to
regulate the transportation of explosives. While there were early
attempts at federal protection of the environment, it was not until the
1970s that environmental protection became a priority. A labyrinth of
federal laws were enacted to control the public’s exposure to toxic
substances, thereby minimizing potential risks to public health and the
environment.
These federal statutes cover five broad areas: (1) occupational
protection statutes; (2) laws on transporting chemicals and hazardous
substances; (3) chemical use and assessment laws; (4) environmental
protection statutes and ( 5 ) laws regulating cleanup of unintentional
disposal of chemicals. There are a number of federal statutes that
address toxic substances; however, the major laws are the:
Federal Food, Drug and Cosmetic Act (FFDCA)
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
Clean Air Act (CAA)
Clean Water Act (CWA)
Occupational Safety and Health Act (OSH Act)
Safe Drinking Water Act (SDWA)
Hazardous Materials Transportation Act (HMTA)
Toxic Substances Control Act (TSCA)
Resource Conservation and Recovery Act (RCRA)
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA)
Superfund Amendments and Reauthorization Act (SARA)
These laws and the broad areas they cover are summarized in Table 1

Occupational Safety Issues
The Occupational Safety and Health Act is the primary federal law
regulating toxic substances to protect workers in the workplace. The
federal law was passed as the result of increased public concern about
workplace hazards and the effects of exposure to hazardous chemicals.
Before passage of the law, worker safety was the responsibility of state
agencies and labor groups. Federal safety requirements were confined

Managing the Environmental Regulations and Safety

5

to specific industries (e.g., mining, railroading, longshoring). The
Occupational Safety and Health Administration (OSHA) was established
within the Labor Department to administer the Act.

TABLE 1
AREAS OF CONCERN ADDRESSED BY FEDERAL
TOXIC SUBSTANCES STATUTES
Area of Concern
Occupational Protection

Federal Statute
0
0

Environmental Protection

0
0

0

Chemical Manufacture
and Use

0
0

Transportat ion

0

0

Cleanup Actions

0

Occupational Safety and Health Act
Superfund Amendments and
Reauthorization Act
Clean Air Act
Clean Water Act
Safe Drinking Water Act
Resource Conservation and Recdvery
Act
Federal Food, Drug, and Cosmetic
Act
Federal Insecticide, Fungicide, and
Rodenticide Act
Toxic Substance Control Act
Superfund Amendments and
Reauthorization Act
Hazardous Materials Transportation
.
Act
Resource Conservation and Recovery
Act
Comprehensive Environmental
Response, Compensation, and
Liability Act (as amended by
SARA)

6

Environmental and Health

The main provisions of the Act dealing with toxic substances include:

0

Establishing and enforcing standards to limit exposure to various
chemical substances that could induce acute or chronic health
effects.
Regulating substances that may cause cancer.
Informing employees of the dangers posed by toxics substances
through the use of Material Safety Data Sheets (MSDSs).
Requiring employers to maintain medical, training, and other
records to track the development and incidence of occupationally
induced disease.

OSHA has established standards for 22 toxic or hazardous substances
and 402 toxic air contaminants. In setting standards, OSHA evaluates
three types of health effects: acute (immediate), chronic (long-term), and
carcinogenicity (ability to cause cancer). Pursuant to the United States
Supreme Court ruling in Industrial Union Department. AFL-CIO vs.
American Petroleum Institute [448 US 607, 8 OSHC 1586 (1980)],
OSHA must show that a "significant risk" exists before it issues a health
standard. Also under the Supreme Court's ruling in American Textile
Manufacturers Institute vs. Donovan [452 US 490,9 OSHC 1913 (1981),
a standard must be feasible, i.e., must adequately assure that no
employee will suffer material impairment to their health to the extent that
this is "capable of being done." OSHA standards include a Permissible
Exposure Limit (PEL), labeling, protection equipment, control
procedures, and monitoring requirements.
SARA establishes specific training requirements, funds training
programs, and delegates responsibilities to OSHA and the National
Institute of Environmental Health Sciences. SARA requires 40 hours of
classroom and 24 hours of site specific training for nearly all workers on
hazardous waste site cleanups, at commercial hazardous waste treatment,
storage, and disposal facilities, and for industrial workers who will act
as hazardous materials first responders. OSHA has promulgated draft
regulations to cover the SARA training and working condition
requirements.

Managing the Environmental Regulations and Safety

7

Environmental Protection Issues
In the 1970s, Congress passed several environmental protection statutes
beginning with the Clean Air Act and amendments to the Federal Water
Pollution Control Act (renamed the Clean Water Act). While most of
these initiatives were actually amendments to existing federal
environmental statutes dating back 70 years, the changes were so
extensive in both philosophy and scope that they are commonly thought
of as new laws. These laws focused primarily on cleaning up
"conventional" pollutants--smoke and sulfur oxides in the air, oxygendepleting discharges into surface waters, and solid wastes into the land.
As the 1970s ended, these laws began to focus on toxic substances that
could threaten human health at even low concentrations. These statutes
were amended, or new regulations and policies to handle toxics were
adopted by the administering agency.
Unlike the Occupational Safety and Health Act, environmental laws
address by-product discharges of toxic and hazardous substances that are
released into the environment. Standards to reduce risks to public health
are established in a similar manner to the OSH Act. All of the
environmental laws are administered by the United States Environmental
Protection Agency (EPA).
The Clean Air Act originally addressed smoky, dirty air that plagued
many industrial cities. It was subsequently amended to add provisions
about the effects of sources of pollution.
The 1977 amendments (PL 95-217) focused the statute on toxic air
emissions. The Clean Air Act gives the EPA the responsibility to set
three different kinds of air standards:
1. National Ambient Air Quality Standards (NAAQS) defining the
maximum concentration of air pollutants allowable.
2. New Source Performance Standards (NSPS) establishing the
allowable emission levels for different stationary sources.

3. National Emissions Standards for Hazardous Air Pollutants
(NESHAPS) setting emission limitations for which no ambient
air quality standards exist.

8

Environmental and Health

National Ambient Air Quality Standards authorized under
Section 109 include both primary and secondary standards. Primary
standards reflect the concentration level necessary to protect public
health. Secondary standards are designed to protect public welfare from
any known or anticipated adverse effect of air emissions on vegetation,
soil, water, wildlife, visibility, or climate.
The Clean Air Act established emission standards for specific air
pollutants that are particularly hazardous to health. Emission limits
based on the Best Available Control Technology (BACT) are imposed on
both existing and new sources. In setting hazardous air pollutant
standards, EPA must consider both the beneficial and adverse economic,
environmental and energy impacts associated with the standard.
The Clean Water Act (CWA) controls the discharge of toxic
discharges into surface streams. The first national effort to control water
pollutants was through the Rivers and Harbors Act, which prohibited
discharges into navigable waterways that could interfere with
transportation. Discharge permits, as part of the National Pollutant
Discharge Elimination System (NPDES), set enforceable limitations on
the types and quantities of pollutants which may be discharged.
The 1972 Act required the EPA to establish effluent standards for
toxic pollutants. EPA was slow to develop these standards and
environmental groups sued to force their promulgation. A consent
decree in the case of NRDC vs. Train (8 ERC 2120, D.D.C., 1976)
imposed a schedule for the EPA to develop such effluent limitations.
The consent decree was subsequently adopted in the 1977 amendments
to the law.
The EPA is required to promulgate toxic discharge requirements for
34 industrial categories covering 129 toxic pollutants. The 129 toxics
include metals, volatile compounds, corrosives and pesticides.
Dischargers of these pollutants are required to use Best Available
Technology Economically Achievable (BATEA).
Toxic and hazardous wastes are generated primarily from industries
and farmlands. Industries discharging directly into surface streams are
regulated by a so-called NPDES permit. Discharges into municipal
sewer plants are required to meet pretreatment standards. Nonpoint
sources, such as farmlands, are controlled through the encouragement of
erosion control.
While the CWA focused on surface water quality, the Safe Drinking
Water Act (SDWA) was passed in 1975 (amended in 1986), to protect

Managing the Environmental Regulations and Safety

9

groundwater and drinking water sources. The law requires EPA to
establish recommended maximum contaminant goals (RMCG) for each
contaminant which may have an adverse effect on the health of an
individual. Two types of drinking water standards were established to
limit the amount of contamination that may be in drinking water:
primary standards with a maximum contaminant level (MCL) to protect
human health and secondary standards that involve the color, taste, smell
or other physical characteristics of drinking water sources. The SDWA
regulates 83 different contaminants, which include:
0

0

0

14 volatile organic compounds.
29 synthetic organic compounds.
13 inorganic chemicals.
4 microbiological contaminants.
2 radiological contaminants.

A second major provision of the SDWA for the purpose of protecting
groundwater is the regulation of underground injection of toxic
chemicals. Injection of liquid wastes into underground wells is used as
a means of disposal. Controls were needed to assure that this means of
disposal did not damage the quality of aquifers. Five classes of
underground injection wells were established. Class IV wells where
hazardous wastes are injected into or above a formation within onequarter mile of an underground source of drinking water were phased
out. Under the 1986 amendments, states adopted a program for wellhead
protection. A program addresses the surface and subsurface surrounding
a well or well field through which contaminants are reasonably likely to
move toward a well.
Perhaps one of the most controversial and sometimes misunderstood
environmental statute passed is the Resource Conservation and Recovery
Act (RCRA). RCRA completed the circle of environmental laws enacted
in the 1970s, focusing on the recycling and disposal of solid wastes. The
law is divided into eight subsections. The three subsections of primary
importance include provisions to regulate solid waste (Subtitle D),
hazardous waste (Subtitle C), and underground storage tanks (Subtitle I).
The law originally was drafted as a solid waste recycling and disposal
law to eliminate open dumps, however, its implementation has focused
heavily on regulating hazardous wastes. In 1978, chemicals abandoned
at Love Canal in New York and Valley-of-the-Drums in Kentucky

10

Environmental and Health

received national attention. Studies during that timeframe suggested that
there may be an additional 50,000 similar abandoned hazardous waste
dumps around the country. The State of Illinois and environmental
groups sued EPA to issue final hazardous waste regulations (Illinois vs.
Costle, 12 ERC 1597 DC DC 1978). Congress appropriated increased
funding for regulatory programs. The regulations promulgated by the
EPA established, a cradle-to-nrave system of controlling hazardous
wastes, meaning that manifests for all hazardous wastes transported
offsite are required. Hazardous wastes are defined under the law as
those waste materials exhibiting certain characteristics (i.e., ignitability,
corrosivity, reactivity, and EP toxicity) or are specifically listed by EPA.
An exception to this is polychlorinated biphenyls which are regulated by
the Toxic Substances Control Act and are not defined under RCRA as a
hazardous waste. Standards have been promulgated to regulate the
generation, storage, transportation, treatment and disposal of hazardous
wastes. A major revision to RCRA came in the 1984 amendments,
where the owners of underground storage tanks containing petroleum
products and regulated substances were required to notify the states of
the existence, size, age, type, and uses of all underground tanks. These
amendments also developed regulations concerning leak detection and
prevention, and corrective actions that are required in the event of a leak.

Regulations Affecting Chemical Manufacturing and Use
The general public often view environmental laws as having their focus
on the effects of toxic and hazardous substances being emitted into the
workplace and/or the environment at the point of manufacture.
However, both the public and the environment can also be exposed to
toxic substances during the use and application of chemicals. To reduce
the risk of exposure through the use of a chemical, a number of federal
laws were enacted aimed at regulating what specific chemicals can be
manufactured and sold.
One of the earliest federal legislation aimed at regulating the
manufacture of chemicals is the Federal Food. Drug & Cosmetic Act
JFFDCA). The Act provides the regulatory authority for the Food and
Drug Administration (FDA) to assure the safety of foods, drugs, medical
devices and cosmetics. Adulteration or misbranding of any of these
consumer products is strictly prohibited. The FDA establishes standards
that must be met by manufacturers before certain products may be sold.

Managing the Environmental Regulations and Safety

11

Premarketing clearances are based on scientific data submitted by
manufacturers to demonstrate that the proposed product will not have an
adverse effect on human health.
Major provisions of the law include the following:
0

0
0

The banning of the intentional addition of substances known to
cause cancer in animals to food products (the so-called Delaney
Clause).
The establishment of procedures for setting safety limits for
pesticide residues on raw agriculture products.
The required pre-use of safety assessments and approvals of all
food additives.

Another consumer-oriented federal legislation is the Federal

4
which
,
established
a regulatory program to control the manufacture and use of pesticides
and related products whose purpose is to kill, repel or control insects,
rodents, plants, trees, algae, fungi, bacteria, or other living organisms.
The first federal legislation to control chemical pesticides was passed in
1910. Like the FFDCA, the early law was aimed against adulterating or
misbranding chemical pesticides to protect consumers against false
advertising. Increased awareness of the health and environmental risks
posed by new pesticides and by their persistent characteristics (e.g.,
DDD & DDT), prompted Congress to pass FIFRA. The chief thrust of
the law was to prevent unreasonably adverse effects on the environment
and public health. Under FIFRA, manufacturers must register all new
pesticides with EPA. The EPA sets tolerance levels for residues before
the substance can be used on food crops. EPA sets residue safety limits
for raw (unprocessed ) meat and agricultural products, while the Food
and Drug Administration, under FFDCA, sets pesticide residue limits for
processed foods. In considering registration of a pesticide, EPA must
evaluate not only its environmental effects, but also its economic, social
and health impacts. EPA may refuse to register pesticidesjudged unduly
hazardous, or they may impose use restrictions. All restrictions must be
printed on the label and enforcement action can be taken against pesticide
users who do not comply with the printed restrictions. EPA can
condition the registration for general use or restricted use, i.e., that the
pesticide may only be applied by trained and certified applicators. EPA
has the authority to cancel the registration of a pesticide deemed to pose

12

Environmental and Health

an unreasonable risk. When EPA determines that an unreasonable risk
exists, it issues a "rebuttable presumption against registration" (WAR),
and provides the opportunity for the registrant to provide evidence before
a final decision is made. Examples of canceled registrations include
DDT, aldriddieldrin, 2,4,5-T/silvex, kepone, mirex, and ethylene
dibromide.
The Toxic Substances Control Act was designed to close all the
loopholes in the environmental protection and chemical manufacture and
use laws. It gives EPA broad authority to regulate chemical substances
without regard to specific use (e.g., food, drug cosmetic) or area of
application (e.g., food crops) if they present a hazard to health or the
environment. The law controls the chemical at its source before it is
distributed into the environment and public. Excluded from coverage
under TSCA are food, food additives, drugs, or cosmetics regulated
under the FFDCA; pesticides regulated under FIFRA; and nuclear
materials regulated by the Atomic Energy Act.
Other federal laws control the release of pollutants into the
environment or workplace. However, it is very difficult to monitor and
set emission standards on substances that only enter the environment in
very small quantities. A need was seen to control some substances
before they are dispersed into the environment. Chlorofluorocarbons,
(CFC) used as a propellant in spray cans illustrate this need. When
released, CFCs are so stable that they do not react with anything until
they diffuse upward to the stratosphere. There they are decomposed by
ultraviolet radiation and enter into a chain reaction to destroy ozone
molecules. Ozone depletion enables more solar ultraviolet light to reach
the earth, thereby increasing the incidence of skin cancer as well as
influencing climatic changes. Since chlorofluorocarbons are not
classified as air pollutants and pose no hazard in the workplace, there
was for many years no means of regulating their use. The need to
control toxic substances at the point of manufacture was therefore
identified by congress in the passage of TSCA.
TSCA also specifically bans the manufacture of polychlorinated
biphenyls (PCB). In addition, chemical manufacturers and importers
must provide EPA with a Premanufacture Notice (PMN) which provides
available health and environmental effects data at least 90 days prior to
the manufacture and sale of any chemical. EPA can approve the
chemical, request further testing, condition the manufacture and sale of
the chemical, or prohibit its manufacture. The law is often thought of

Managing the Environmental Regulations and Safety

13

as a risk/benefit type legislation similar to FIFRA. That is, the EPA is
required to consider the benefits of a substance to society’s economic and
social well being, the risks posed by alternative substances, and the
possible health or ecanomic problems that could result from the
regulation of the substance. TSCA is unique in that it is designed as a
gap-filling law. EPA defers to other agencies for action if those agencies
having statutory authority under another law are dealing with identified
problems. When EPA has sufficient authority under another law (e.g.
CAA, CWA, RCRA, etc.), EPA is directed to use the other law rather
than the gap-filling TSCA.
A final legislation worth noting at this point is SARA Title Ill-Emergency Planning and Community Right-To-Know, which regulates
chemicals storage by requiring notification of Local Emergency Planning
Committees (LEPC) of the storage of hazardous and extremely hazardous
materials in excess of threshold planning quantities. Reportable releases,
location of chemicals in-plant and safety information on the chemicals is
required under this legislation.

Transportation of Hazardous Materials
The transportation of hazardous substances represents another potential
route of exposure to the environment and the general public. In fact it
may be argued that transportation of chemicals poses a higher risk of
exposure than manufacturing, storage or disposal because of the potential
risk to the general public.
The Hazardous Materials Transportation Act (HMTA) gives the
Department of Transportation (DOT) authority to regulate the shipment
of substances that pose a threat to health, safety, property, or the
environment when transported by air, water, rail, or highway. DOT
regulations require special packaging, placarding and routing for
hazardous materials. The transportation of hazardous materials was
originally regulated by the federal government in 1965 to protect
railroads from poorly identified and packaged explosives and
ammunition. The list of hazardous substances was expanded through the
years to include additional substances, e.g., flammable liquids and gases,
and transportation modes, e.g., air, and highways. The HMTA
consolidated a variety of agencies and laws regulating different
substances and transportation modes. Enforcement of materials traveling
by a single mode of transport falls to the DOT branch with jurisdiction

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Environmental and Health

over that type of transport, Le., Federal Railroad Administration or the
United States Coast Guard. The most recent revisions to the HMTA
came in the 1990s with new hazard materials regulations aimed at
packaging requirements, labeling, marking of shipments, placarding,
manifesting, and training requirements. The regulations are embodied
in Title 49 of the Code of Federal Regulations (CFR).
The Resource Conservation and Recovery Act also addresses
transportation issues but only for hazardous wastes. Transporters of
hazardous waste must register with the EPA and carry hazardous waste
manifests required under RCRA. They must also comply with all DOT
rules concerning labeling, packaging, and placarding. If bulk shipments
are traveling by rail or water, DOT shipping papers rather than EPA
hazardous waste manifests are required.

Cleanup of Hazardous Wastes
Despite strict federal laws which prohibit intentional releases of toxic and
hazardous substances, it is impossible to completely eliminate
accidentally released mishaps. In addition there are an estimated
50,000 sites where toxic and hazardous substances have been disposed
in the past that are now posing significant health and environmental
risks.
It was with these problems in mind that Congress passed the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) in 1980 (amended by SARA in 1986). Unlike the other
laws, it does not regulate toxic substances. Instead it provides a system
for identifying and cleaning up chemical and hazardous substances
released into the air, water, groundwater and on land. It defines
"hazardous substance" by incorporating into its language those substances
listed in the Clean Water Act, Resource Conservation and Recovery Act,
Clean Air Act, and the Toxic Substances Control Act. CERCLA
established a $1.6 billion trust fund, commonly called "Superfund"
($8.5 billion in 1986), to pay for cleaning up environmental
contamination where no responsible party can be found. The need for
such a trust fund clearly became evident at Love Canal when the state of
New York spent in excess of $35 million for remedial measures and the
relocation of 200 families. The trust fund is provided through a tax on
crude oil, petroleum products, and 40 feedstock chemicals.

Managing the Environmental Regulations and Safety

15

CERCLA also requires that spills or discharges of over 700 substances in excess of 1 to 5000 pounds (depending on the substance) be
reported immediately to the National Response Center (NRC) originally
established under the Clean Water Act. The Center is inspected by the
United States Coast Guard who will contact EPA and other federal
agencies to initiate an emergency response.
CERCLA and the Clean Water Act authorize three types of
emergency responses:
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0
0

Immediate removal of spills during emergency situations.
Planned removal of releases where immediate response is not
needed.
Remedial actions to permanently remove toxic and hazardous
substances.

In the event of a release of a hazardous substance the procedures and
methods to be followed are set forth in the National Contingency Plan
(NCP). The Plan was originally prepared under the Clean Water Act
and includes procedures and standards for responding to hazardous
releases. These procedures include discovery, investigation, evaluation
and removal activities. As part of the plan, EPA is directed to list
national priorities (National Priorities List - NPL) for cleanup of known
or threatened releases. Sites which fall on the NPL are referred to as
Superfund Sites.
A summary of the environmental regulations overviewed in this
chapter are provided in Table 2. The reader should review this table to
become familiar with the major objectives of each legislation.

THE NEED FOR COMPLIANCE
The need for strict compliance of the environmental and safety
legislations can be reduced to one word: liability. When it comes to this
subject, the reader should bear in mind the old saying--"He who would
be his own lawyer has a fool for a client." Even competent attorneys
hire another lawyer to represent themselves, and this is especially true
when dealing with the environmental statutes.
To understand the legal system in this country, we must separate the
subject into two categories: common law and statutory law. Common

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Environmental and Health

h

Managing the Environmental Regulations and Safety
17

18

Environmental and Health

Managing the Environmental Regulations and Safety

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20

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Environmental and Health

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m a .
0

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Managing the Environmental Regulations and Safety

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Environmental and Health

Managing the Environmental Regulations and Safety

23

law is a body of rules and procedures designed to govern and protect
persons and properties. It originated in the customs and practices of the
Anglo-Saxon people of England. These practices and traditions evolved
into a set of laws affirmed by the courts through judicial decisions.
Common law is flexible and adapts to change. It is sometimes referred
to as "court-made law" or "case law," but it is just as real as any law
passed by the United States Congress or any other legislative body.
Since state court systems operate independently and are subject to federal
review only on constitutional issues and in certain prescribed situations,
the common law may differ in its interpretation from state to state. If a
person is involved in litigation under the common law, he should
obviously retain an attorney familiar with common law practices in that
state. There is also a federal common law, though this is invoked much
less frequently. Some states have codified parts of the common law,
making it very important to seek the advice of an attorney familiar with
the laws of the jurisdiction where one is involved. Statutory law is the
result of enactments by a legislative body, and it forms the basic part of
the jurisprudence of most of the states.
The class of common law actions encountered in environmental cases
is called Tort Law. Torts are civil actions as distinguished from criminal
procedures, though in some cases there can be both civil and criminal
causes of action deriving from the same set of circumstances. A tort is
a civil wrong that does not arise from a specific and explicit agreement
between parties such as in a contract, but from a generalized duty of any
citizen to avoid harming his neighbor. Court actions can arise from
injury or damage to property and from injury to a person including not
only his body, but also his reputation or sensibilities.
Violations of these private rights can be abated by award of monetary
damages or injunctive relief. Monetary damages can be actual, punitive
or exemplary. An injunction is an order of the court to do or refrain
from doing a certain act. Injunctions can be temporary or permanent.
Generally, temporary injections are issued to provide time for a case to
be litigated. Permanent injunctions are intended to provide permanent
relief, and are normally issued as the outcome of a trial. Courts have
great flexibility in determining whether to issue injunctions, but they
generally follow certain rules. First, does the plaintiff appear to have a
complaint that would prevail when and if the case came to trial? Second,
is the alleged injury of such a nature to be irreparable and especially to
be incapable of abatement by later award of monetary damages? Third,

24

Environmental and Health

would granting the injunction be an unreasonable present burden to the
defendant? And, fourth, wherein lies the public interest? For example,
would granting an injunction provide relief to a few, while throwing
many out of work? There are other rules as well, but again the practices
in a local jurisdiction must be studies in an actual case.
The types of torts encountered in the environmental field are:
(1) nuisance, (2) trespass, (3) negligence, and (4) strict liability. Long
before the enactment of current environmental statutes, tort actions have
afforded remedies to private individuals harmed by exposure to
hazardous wastes.
The most common of the environmental torts is nuisance. According
to Black's Law Dictionarv, nuisance is "the class of wrongs that arise
from the unreasonable, unwarrantable, or unlawful use by a person of his
own property, either real or personal, or from his own lawful personal
conduct working an obstruction or injury to the right of another, or of
the public and producing material annoyance, inconvenience, discomfort,
or hurt." By and large, a person may act as he sees fit or use his
property as he sees fit. The limitation is that the person must act in a
reasonable manner avoiding material injury or annoyance to another.
The injury or annoyance must be material, such that it tangibly affects
the physical comfort of ordinary people under normal circumstances.
There are generally four elements of proof in an environmental tort
case. These apply to negligence, but they are effective standards for any
environmental tort. First, the defendant did or failed to do an act which,
second, he owed to the plaintiff by virtue of a legal duty. Third, this act
caused material injury to the plaintiff or his property. And, fourth, the
act was the proximate cause of the injury. Proximate cause is that which
forms a natural and continuous sequence and which, if unbroken by an
intervening act, produces the injury and without which the injury would
not have occurred.
Nuisances may be private or public. A private nuisance affects a
limited number of people while a public nuisance affects the community
as a whole. Private citizens bring private nuisance suits, but a public
official normally abates a public nuisance. Public nuisances are
generally defined by statute or ordinance and are customarily criminal
acts. A public nuisance, though a crime, may also be a tort and a
private nuisance if the plaintiff can show that he has suffered special
damages. The damages must be individual to the plaintiff and not those
which he shares with the rest of the public.

Managing the Environmental Regulations and Safety

25

Nuisances can arise from noise, smoke, dust, odors, and exposure
to hazardous substances. For example, the Earthline Corporation was
licensed and began to operate a hazardous waste recovery, treatment,
storage, and disposal site, near the town of Wilsonville, Illinois.
Wilsonville sued Earthline to stop the operation and remove all
hazardous wastes and toxic substances from the site. The Court ruled
that the site was a publidprivate nuisance and issued an injunction not
only against further operation of the site but also requiring Earthline to
remove all wastes and contaminated soil. This case raises a critical
issue. Possession of a Droperlv issued permit in full compliance with all
government regulations is not a defense against a common law tort
action. Negligence is not a material element in a cause of action for
nuisance. Negligence and nuisance are separate torts. Nuisance is a
condition and not a negligent act or failure to act.
Trespass is wrongful interference with the plaintiff's possessory
interest in land, personal property, or his or her own person.
Traditionally, the cause of action for trespass arises when the defendant
unlawfully enters upon another's land. Trespass may also occur when
the plaintiff's land is invaded by some instrumentality or object under
defendant's control. An owner of land may recover where the intrusion
of hazardous waste on or under his property impairs his or her legal
interests.
Negligence is conduct that "falls below the standard established by
law for the protection of others against unreasonable risk or harm. The
standard of care required by law is that degree which would be exercised
by a person of ordinary prudence under the same circumstances. This
is often related to the famous "reasonable man" rule; namely, what a
reasonable person would have done. Persons harmed as a result of
careless and improper disposal or handling of hazardous waste can
recover for their losses under a negligence cause of action. Both state
and federal courts have long recognized recovery against defendants who
engage in the negligent disposal of pollutants such as hazardous wastes.
While havinp an amromiate uermit and being in full comuliance with all
government regulations is not a defense against negligence,
noncomdiance with regulations or uermit conditions may be prima facie
evidence (proof without any more evidence) of liability under a
negligence cause of action.
Strict liability differs from negligence in that the defendant may be
liable even though he may have exercised reasonable care. Not all states
I'

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Environmental and Health

have applied the doctrine of strict liability to hazardous waste disposal
actions, but the trend is toward broadening of this application. Certain
courts have already ruled that a person who keeps a potentiallv
dangerous substance which, if Dermitted to escape. is certain to iniure
others, must make good the damage caused bv the escape of the
substance regardless of negligence on the defendant's Dart. The theory
is that a person engaged in an ultra-hazardous or dangerous activity for
profit should bear the burden of compensating others who are harmed by
his activities.
Regarding hazardous wastes, there has been a judicial expansion of
the common law concerning liability in recent years. Plaintiffs injured
by hazardous wastes have often found it difficult to establish common
law liability against individuals and companies who may have managed
or disposed of those wastes. At abandoned disposal sites, records are
scanty or nonexistent. Many different generators may have used a
particular disposal site, and the plaintiff generally has the burden of
proving which of the multiple defendants caused his injury in order to
establish liability. Damage to human health from exposure of hazardous
wastes often involves long latency periods which make it difficult for a
plaintiff to prove his case.
Recently, courts and legislatures have taken steps to ease these
burdens. Most states now delay commencement of the statute of
limitations until the injury has been discovered. Several alternative
theories of liability have also been developed to alleviate the plaintiff's
burden of proof on identifying a proper defendant. At least four theories
have evolved: concert of action, enterprise liability, alternative liability,
and market share liability.
Under the concert of action theory, a defendant may be held liable
if he negligently or intentionally harms someone in concert with others
who all have a common design. There need not have been an express
agreement. All defendants properly joined in such a case are held jointly
and severally liable for injuries to plaintiffs. Thus, each defendant is
potentially liable for the damage caused by all the defendants.
Under the enterprise liability theory, a similar rationale is applied on
an industrywide level. A plaintiff must establish that his injuries were
caused by members of a class of defendants engaged in a particular
enterprise or industry. Once this showing has been made, enterprise
liability shifts the burden of proof to the individual class members to
show that they did not cause the plaintiff's injury.

Managing the Environmental Regulations and Safety

27

Alternative liability allows a plaintiff to recover against several
nonconcerting defendants where only one committed the wrongful act,
but where it is extremely difficult to ascertain which defendant was
responsible. The plaintiff must prove that he or she suffered injury and
that he or she has joined in the lawsuit all potential defendants. The
burden then shifts to the defendants who must each prove that they did
not harm the plaintiff.
Market share liability relieves the plaintiff's burden of having to join
all potential defendants in the lawsuit as a prerequisite to shifting the
burden of proving causation; joinder of all defendants is not necessary
as liability is apportioned by the court on an industrywide basis in
accordance with the market share held by each manufacturer. This
theory of apportionment has not yet been specifically applied in the
context of hazardous waste management, but it does represent a mood of
judicial expression in the broad field of toxic tort litigation.
Common law is still evolving with regard to toxic and hazardous
waste management. Many courts appear to be easing the burden of proof
for plaintiffs and imposing broader liability on those who handle
hazardous wastes. Expanded common law tort liability poses added risks
and costs of doing business for any company handling hazardous
substances. A major consideration for individuals and corporations is the
matter of insurance protection. Hazardous substance liability insurance
it disappearing or becoming prohibitively expensive. Liability faced by
owners and operators of hazardous waste facilities under current law is
too uncertain for traditional underwriting practices. It is extremely
difficult to assess the potential risks when liability is so strict that even
careful hazardous waste management practices will not prevent liability.
Liability may be "joint and several" resulting in the need for duplicative
and wasteful insurance coverage. Liability may also be retroactive in
that past practices may cause harm at some indefinite time in the future,
further complicating and overlapping statutes and common law liabilities.
With regard to criminal liability of corporate officials, the
environmental laws and regulations provide for a wide range of civil and
criminal penalties for failure to comply. The courts are no longer
holding only a corporation liable under the statutes for a fine, but are
holding individuals personally liable, even for imprisonment, in their
corporate roles. The Supreme Court provided a landmark case in the
United State vs. Park. In this case, the court held that a corporate
official could be criminally liable under the Food, Drug, and Cosmetic

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Environmental and Health

Act if he had the corporate authority and responsibility for preventing
violations of the statute but failed to do so.
Park was president of Acme Markets. He was convicted of violating
the Federal Food, Drug, and Cosmetic Act which states that "any person
who violates a provision . . . shall be imprisoned for not more than one
year or fined but not more than $1000, or both." Park was aware that
certain foods held in a warehouse had become adulterated by exposure
to rat poison. He had delegated responsibility for remedying the
situation to some employees. The Trial Court held that because he knew
of a previous violation that had been ineffectively remedied and had
delegated responsibility to the same people, his delegation in the second
case was not a sufficient attempt to remedy the problem. The judge held
that Park could be found guilty "even if he did not consciously do
wrong" and even is he had not "personally participated in the situation,"
if it were proved beyond a reasonable doubt that he "had a responsible
relationship" to the situation.
In general, criminal violation requires some element of scienter or
conscious criminal intent. In this case, the Supreme Court upheld Parks'
conviction based only on his being the responsible corporate official.
The court noted that a finding cannot be based solely on the officer's
position in the company.
There must be some measure of
"blameworthiness." The test which the Supreme Court used was that the
official could be held criminally liable if he had "by reason of his
position in the corporation, responsibility and authority to either prevent
in the first instance, or to promptly correct the violation complained of,
and that he failed to do so."
It is clear that the government's position is strict criminal
enforcement against corporate officials in the environmental field.
Individuals who would be tempted to violate the pollution control laws
are professional and business people with positions to uphold in the
community. These are people for whom an indictment alone, even
without conviction or imprisonment, could be a catastrophe. Therefore,
vigorous criminal enforcement is a truly effective deterrent to such
persons and results in better pollution control. There is an apparent
trend toward increasing severity in dealing with violations of statutory
law in matters relating to pollution control and to include imposition of
criminal liability upon individuals in positions of corporate authority.
This situation makes responsible corporate officers more aware and
thoughtful about their actions.

Managing the Environmental Regulations and Safety

29

With regard to statutory provisions of liability and compliance, there
is a vast and bewildering array of paragraphs and sections of the
numerous acts. In discussing liability and compliance in the statutory
sense, it is essential to broaden these considerations to include inspection,
reports and enforcement. It is under all of these subject headings that
one must study the provisions of any particular enactment such as RCRA
and CERCLA. There are similarities between the separate provisions of
the various environmental statutes, but one needs to study each act to be
certain.
Environmental violations may result in reactions by more than one
governmental body under more than one provision of more than one
statute. Since the environmental laws, generally, are framed for
delegation to the states, there may be concurrent violations of both state
and federal law. Some states are more diligent even than the federal
government in enforcing environmental requirements. This means that
differences in enforcement practices from one state to another can be
substantial. It is important to study the enforcement attitudes and the
abilities of a state as well as the written laws on the state’s books.
One must also recognize that the federal government is not a
monolithic structure. Though the enforcement scheme for federal laws
is intended to be set by the EPA, that agency itself is made up of a
number of different offices in its own headquarters and ten regional
offices across the country. Attitudes and interpretation of policy may
differ substantially between offices and between regions. EPA has stated
that it encourages the use of persuasion, administrative action and other
alternatives before going to court for judicial action. The practice and
the announced policy may not always coincide.
Cases referred for trial in federal court by the EPA are actually
handled by the United States Department of Justice. This provides
another possibility for differences in interpretation and action. Program
offices within the EPA, legal offices in the EPA, the headquarters of the
Department of Justice, and the various United States Attorneys (who are
the local representatives of the Department of Justice) may all have
vastly different ideas of appropriate measures to force compliance. One
must be aware of all these potential variations.
Even beyond the environmental statutes, one must also be aware of
possible violations of such laws as those covering mail fraud. Liability
may be established simply by mailing a false report to EPA. Other

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Environmental and Health

statutes, for example, address making false official statements to federal
officials.
Most environmental statutes permit citizen suits. Citizens may act
even as “Private Attorney Generals” to allege violations of federal law
and go to court even if EPA does not agree. Some state laws also permit
citizen suits. In some cases, the government may investigate a situation
and decide to pursue some alternative correction mechanism instead of
a law suit. Private citizens, can gain access to the government’s reports
(when the investigations might not even have been within their financial
means or authority) and go directly to a judge rather than having to wait
for the government’s action.
The complexities of common law liability added to the incredible
array of statutory laws and regulations existing through multiple
government agencies at federal and state levels, plus the complications
of possible citizen suits under statutory law, should make any individual
dealing with hazardous substances take a realistic look not only at his or
her company’s liabilities, but also at their own personal concerns. What
is your company’s policy on defense of individuals and what is the extent
of the company’s insurance coverage for damage actions? To protect
your company and yourself, one must be familiar with the legal requirements and never knowingly violate them.

2 MANAGING FACILITIES, DUE DILIGENCE

AND FACILITY TRANSFERS

REGULATORY OVERVIEW
Principle Federal Regulations
In 1986, the Superfund Amendments Reauthorization Act (SARA) was
signed into law to provide important corollaries to CERCLA. SARA
significantly broadened the definition of parties potentially responsible for
a property's cleanup. For example, SARA 8 107 provides for financial
liability for environmental cleanup regardless of "ownership. Under
SARA, liability extends to owners, operators, and legal entities holding
title to the property, regardless of whether such ownership was
transferred through bankruptcy, foreclosure, abandonment, or payment
of delinquent taxes.
Together, CERCLA (Comprehensive Environmental Response and
Cleanup Liability Act) and SARA define "strict, joint, several, and
retroactive liability" for hazardous waste cleanups. Strict liability
indicates that contributory negligence is not a prerequisite for
determining responsibility under the statute. The purchaser, current
owner, or operator on the property, may be liable for cleanup costs even
if the property was contaminated prior to purchase. The original owner
can be held liable for all or part of the cleanup costs despite compliance
with all regulations in effect at the time of property transfer. Joint and
several liability suggests that one or several parties may be responsible
for cleanup costs. Furthermore, corporate lenders, creditors and
shareholders can be named potentially responsible parties (PW's) and
may have to assume some, or all, of a property's cleanup costs. Only
when the financial resources of identified responsible parties have been
It

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Environmental and Health

exhausted do the federal Superfund moneys (and/or the state
" superfunds ") become available.
Costs associated with environmental impairment of real property
resulting from releases of hazardous substances are eligible for cost
recovery under Superfund. The original intent of SARA (the 1986
amendments to CERCLA) was to provide potential defense against
liability for "innocent" purchasers of property affected by listed
hazardous substances. The environmental site assessment process,
developed to respond to the need to perform due diligence under SARA,
has expanded to include evaluations of environmental issues such as
wetlands and degradation of property by petroleum product releases,
asbestos, radon, and lead, for instance, all directly affecting the collateral
value, though not necessarily a liability under Superfund, to potential
owners and parties to the transaction process. How these related issues
will be evaluated and the corresponding level of risk assessed should be
carefully and completely discussed by all parties to the transaction prior
to commencement of the environmental assessment process. The
purchase price and ability of the purchaser to obtain financing are
directly affected by actual cleanup costs and perceived risks associated
with the presence of toxic and hazardous substances in site buildings, soil
and groundwater.
Following CERCLA, several states adopted hazardous waste liability
laws. Some states, including Massachusetts, New Jersey, Connecticut,
and New Hampshire, have enacted so-called super lien laws which
provides states the authority to impose a lien on any property requiring
cleanup that involves state expense. The super lien law takes precedence
over all other encumbrances, including first mortgages.
While various states passed super lien legislation, New Jersey
enacted the Environmental Cleanup Responsibility Act (ECRA). Under
ECRA, the New Jersey government has become aggressively involved
in regulating property transfers by requiring proof that commercial and
industrial properties are "clean" prior to a change in ownership. In
effect, New Jersey has the authority to void property transactions if an
environmental site assessment and cleanup of hazardous materials present
on the property have not been completed. New Jersey's ECRA, has
been amended and retitled ISRA (discussed later). It is important to
understand both the ECRA and ISRA legislation, because many aspects
of ECRA still apply and are under enforcement.

Managing Facilities, Due Diligence and Facility Transfers

33

Other states require disclosure of known environmental impacts
during transfer of residential property under civil codes. In California,
sellers must disclose knowledge of the presence of substances which may
be an environmental hazard such as asbestos, formaldehyde, radon gas,
lead-based paint, fuel or chemical storage tanks, and contaminated soil
or water on the property.
CERCLA, SARA, ECRA (or I S M ) and similar federal and state
environmental acts have established the legal boundaries within which
liability can be assigned. Buyers and lenders are now sensitized to the
costs associated with encountering and resolving environmental problems.
Indeed, hazardous waste cleanup costs can potentially exceed the value
of the property itself.
It is not uncommon for regulatory agencies to impose fines up to
$25,000 per day for environmental violations: for instance ten to hundreds of thousands of dollars in fines can be imposed for ongoing
noncompliance with air quality regulations. Environmental issues have
affected all aspects of property transactions. Because of the potential
magnitude if financial liabilities, property transfers are now subject to
unprecedented scrutiny by borrowers, lenders, and other potentially
responsible parties (PRPs) financially involved in the transaction.
Identifying and evaluating environmental liabilities and risks is essential
in limiting liabilities to parties to the transaction.

Objectives of Property Transaction
Environmental Site Assessments
A standard for performing real property transaction environmental site
assessments involve independent investigation of key issues or facts
related to potential environmental liabilities associated with the property
transaction. A complete site assessment includes independent verification
of historical documents and facts about the property’s use.
Objectives of the environmental site assessment include identification
Of
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0

Onsite liabilities associated with past or current practices
involving the use, storage, treatment, or disposal of hazardous
materials (hazmat) or substances.
Offsite contingent liabilities involving past or current offsite
hazmat storage or disposal practices.

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Environmental and Health

Regulatory compliance and permit status of the site operations may also
be evaluated, depending on specifics of the transaction.
The property value is typically a significant factor in establishing the
extent and content of the site assessment. Real estate transactions on
lower value properties generally require a lower level of effort than
transactions involving high-risk industrial properties, higher value
properties or transactions with larger loan-to-value ratios. Some lenders
impose assessment requirements that remain standard, regardless of the
size of the transaction involved.

Laws Directly Affecting Property Transfers
In response to public outcry following the discovery of dangerous
contamination at Love Canal, New York, and thousands of other sites
around the country, the U.S. Congress and state legislatures enacted laws
intended to identify and ensure the cleanup of contaminated sites. Some
contamination has resulted from disposal site practices that were
previously accepted as adequate by the responsible government agencies.
Other contaminated sites are associated with leaking underground storage
tanks (USTs), or with leaks or spills that occurred during chemical use
at industrial sites or in transit. Additional contamination results from
conscious illegal disposal: in remote areas, along roadsides, into sewers
and ditches.
To fund cleanup of contaminated sites, Congress enacted the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA--also known as “Superfund”)and its subsequent
amendments. New Jersey’s Spill Compensation and Control Act (N.J.
Stat. Ann. 5 58: 10-23.11) served as the model for the federal legislation.
The Contamination at Love Canal drew national public attention to toxic
contamination and helped solidify action to pass Superfund. Love Canal
was such a dramatic incident that it gained a reputation throughout the
nation and galvanized efforts at the federal and state levels to pass
cleanup legislation. It signaled the beginning of an era of heightened
political and public awareness and recognition of the threat chemicals
pose to land and water.
The Love Canal incident continues to draw attention. Many
residents had to be relocated and their properties purchased; part of
Superfund’s purpose was to compensate victims for their losses.

Managing Facilities, Due Diligence and Facility Transfers

35

Another high profile example is Times Beach, Missouri, where waste
oil laced with dioxin was spread on the town's dirt roads to suppress the
dust. There, too, residents had to be evacuated and millions have been
spent to relocate them.

WHAT IS CERCLA, SARA, SUPERFUND?

Overview
The basic premise of Superfund is that the polluter pays. Like no other
environmental legislation, however, Superfund has invoked extreme
emotional criticism. Industry representatives argue that society shares
the blame for contamination because modern lifestyles are dependent on
the chemical industry, which simply responds to what society demands.
Moreover, many caught in the Superfund net are troubled by the fact that
the practices that led to contamination often conformed to standards
accepted at that time. From this standpoint it seems highly unfair to
apply present-day standards to the results of disposal methods that were
practiced only a few decades ago. On the other hand, advocates of
Superfund argue that although there may be some inequities in the
system, it if fairer for the responsible parties to pay than for the taxpayer
to bear the financial burden of environmental remediation. Moreover,
Superfund acts as a deterrent to prevent irresponsible practices that might
lead to contamination.
There are numerous other criticisms of the Superfund process. May
proponents claim that the process is ineffective, too slow, and hindered
by litigation. Litigation is a particularly sore spot for many critics of
Superfund since it is claimed that the only real winners are the lawyers
who reap huge profits from the litigation process, thereby diverting
money away from cleanups.
There is also the long-debated question of "how clean is clean,"
amidst allegations that the program's cleanup standards are too rigid or
stringent given the relative risks, and that the risks associated with sites
slated for cleanup are inflated. Lending institutions also assail the
program as too far-reaching and perhaps too altruistic.
Some suggestions for changing the Superfund process include altering
the strict liability standard of the law and restructuring the funding
mechanism to force localities to bear some of the cleanup costs. The

36

Environmental and Health

latter idea is based on the premise that, because communities are not
faced with remediation costs themselves, they don't appreciate the cost
of cleanup in proportion to the risks of a particular site. If communities
had to pay directly for part of the cleanup, they would be less likely to
demand that stringent standards be met when less compre!iensive cleanup
methods would suffice. Conversely, many argue that a purely economic
analysis ignores certain aspects of fairness. Lower cleanup standards or
cost-sharing may make some sense when limited federal funds are being
used for cleanup and responsible parties cannot be identified or made
liable for reimbursement. However, when responsible parties can be
identified, it seems only equitable to force those parties to restore
contaminated property to its original state since their actions were the
direct cause of the contamination. Many see it as especially fair and
necessary if large corporations with "deep pockets" had profited from
activities that resulted in contamination.

State Superfund
Many states have created programs similar to Superfund. Generally,
these state laws are intended to help finance the state's share for cleanup
of sites under the federal Superfund program, and to finance cleanups at
state sites that are not considered a priority or slated for cleanup under
the federal program. While some contaminated sites are considered
extremely important to a particular state, or are in fact a threat to public
health and the environment, federal resources are spread thin, and
cleanup under the federal program is unlikely unless a site poses a
tremendous danger to public health and the environment. Consequently,
only the most pervasively contaminated sites are addressed under the
federal program.

Comprehensive Environmental Response,
Compensation, and Liability Act
CERCLA created national policy and procedures for containing and
removing releases of hazardous substances, and for identifying and
cleaning up sites contaminated with hazardous substances. It was
amended and strengthened by the Superfund Amendments and
Reauthorization Act of 1986 (SARA). SARA left the objectives and the
basic structure of CERCLA intact, but substantially expanded the scope


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