Harvey Hits Superfund Sites

By: Lisa Allen, L’18

Hurricane season brings some predictable images to the nightly news: stern state governors requesting compliance with evacuation orders, empty grocery shelves, wind-blown, water-soaked meteorologists, and after the storm, always shocked victims surveying the wreckage of their homes. We see perhaps one or two more days of cleanup reported, piles of debris, and FEMA assurances that people’s needs will be addressed.

In most years, that has been the full news cycle for a hurricane. With Hurricane Harvey, however, some ominous new elements have been added to the news. The Houston area is noted for being a powerful economic center for the petrochemical industry, with numerous chemical manufacturing facilities.[1] While the modern petrochemical industry is, we hope, responsible in managing their waste stream and storage, this was not always the case. The region impacted by Hurricane Harvey is home to many Superfund cleanup sites.[2]

Superfund sites are locations that have been designated, in accordance with the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as being so polluted that they require federal intervention to ensure their cleanup. [3] Under CERCLA, the EPA identifies a site with hazardous contamination, attempts to identify the Potentially Responsible Party (PRP), and then remediates the problem. The PRP is strictly liable (no proof of negligence is required), and may be jointly or severally liable (any PRP may be held liable for the entire cleanup, even if it was only responsible for part of the pollution). [4] A company that dumped toxic compounds before 1980, in accordance with the industry standards of the day, is today still responsible for the cost of containment, cleanup, and damages resulting from their release of wastes.[5]

One example of such a site is the San Jacinto Waste Pit in Harris County, Texas, directly in the path of Hurricane Harvey. The PRPs for this Superfund site are International Paper and McGinnes Industrial Maintenance Corporation. The San Jacinto Waste Pit is contaminated with dioxins, a group of carcinogenic compounds produced in various chemical processes, including the bleaching of pulp and paper.[6] An armored berm was constructed on the site, designed to prevent the dioxin from leaching into the nearby San Jacinto River, while longer term plans were made to remove the dioxin from the site. According to the PRPs, the berm was designed to withstand a 500-year flood.[7] Full remediation costs including removal of the dioxin are anticipated to approach $97M, fully borne by the PRPs.[8]

Hurricane Harvey soaked Houston and surrounding Harris County with a 1000-year flood.[9] News reports have not yet clarified the stability of the berm, although reports from the PRPs say that preliminary visual inspections indicate that, while some material was displaced, the berm has held.[10] There are no reports yet of chemical analyses of potential leaching, or the effects of the hurricane on the long-term cleanup plan.

One defense a PRP may make to superfund liability is in cases where an “act of God” is solely responsible for the release of a contaminant.[11] The inclusion of the word “solely” restricts this exception to situations where every part of the contamination was attributable to a natural disaster. Even though a PRP could argue that a hurricane is an “act of God,” the original release of dioxin was not. In the case of San Jacinto, if dioxin escaped the waste pit during the recent flood, the PRPs will be responsible for the expanded cost of cleanup. It is not yet clear whether the dioxin has been contained in the original area of the waste pits, whether these toxic and persistent compounds have leached into the surrounding soil or the watershed, or what effect the storm may have on the final costs to the PRPs.

The San Jacinto Waste Pit Superfund site is only one environmentally precarious location among many that were in the path of Harvey.[12] As the news cycle moves on from one hurricane to the next, sadly, the effects of Harvey may put that storm in the news for months or years to come.

 

[1] Tom DiChristopher, Harvey Threatens to Choke Off Supply of Critical Chemicals, Plastics to US Manufacturers, CNBC (Aug. 29, 2017, 7:38 P.M.) https://www.cnbc.com/2017/08/29/harvey-threatens-to-choke-off-chemical-supplies-to-us-manufacturers.html.

[2] Environmental Protection Agency, Superfund National Priorities List by State, https://www.epa.gov/superfund/national-priorities-list-npl-sites-state#TX, (last visited Sep. 14, 2017).

[3] 42 U.S.C. § 9601 et. seq., see also Mintz, Joel A., EPA Enforcement of CERCLA: Historical Overview and Recent Trends (September 13, 2012). Southwestern University Law Review, Vol. 41,9. 640, 650, 2012; NSU Shepard Broad Law Center Research Paper No. 12-003. Available at SSRN: https://ssrn.com/abstract=2145372.

[4] Id., see also Environmental Protection Agency, Superfund Liability, https://www.epa.gov/enforcement/superfund-liability (last visited Sep. 14, 2017).

 

[5] Id.

[6] EPA Learn About Dioxin, https://www.epa.gov/dioxin/learn-about-dioxin (last visited Sep. 14, 2017).

[7] E-mail from David Moriera, Sr. Dist. Manager McGinnes, Industrial Maintenance Corp., to Gary Miller Remedial Project Manager, U.S. EPA, (June 20, 2014) (on file with author) (supporting the PRP’s view that the cap is an adequate remedy, and that removal of dioxin is a less environmentally desirable option).

[8] Kim McGuire, EPA Want to Remove Toxic Waste from San Jacinto River Superfund Site, Houston Chronicle (Sep. 30, 2016, 12:27 PM) http://www.houstonchronicle.com/news/houston-texas/houston/article/EPA-wants-to-remove-toxic-waste-from-San-Jacinto-9395540.php .

[9] Jason Samenow, Harvey is a 1000-year Flood Event Unprecedented in Scale, Washington Post, Aug. 31, 2017.

[10] San Jacinto Facts (Sep. 4, 2017) International Paper and MIMC informational website, http://www.sanjacintofacts.com (last visited Sep. 14, 2017).

[11] 42 U.S.C.A. § 9607.   See also EPA Defenses and Exemptions to Superfund Liability, https://www.epa.gov/enforcement/defenses-and-exemptions-superfund-liability.

[12] See supra note 2.

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