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What the Hell Is Superfund?

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What the Hell Is Superfund? WHAT THE HELL IS THE CHEMETCO SUPERFUND SITE AND WHY HAVE I BEEN SUED? An informational program designed to provide PRPs at the Chemetco Superfund Site with enough information to know what they have to do in response to the lawsuit filed by and settlement offers made by the Chemetco Site PRP Group Presented by Scott Horne Law Office of Scott J Horne 202-309-2865 [email protected] SCOTT HORNE • Operated scrap processing plants • Served as ISRI’s Director of State & Local Planning and then as General Counsel and Vice President for Government Affairs for ISRI • Part of the ISRI staff team that worked toward enactment of the Superfund Recycling Equity Act (SREA) • Drafted several provisions of the act as a result of stakeholder negotiations • Helped Lobby Congress to obtain enough co-sponsors to assure passage of SREA • Drafted much of Senator Lott’s legislative history of SREA that was entered into the Congressional Record • Negotiated with EPA to have rational guidance or regulations for SREA DISCLAIMER The information provided herein is not intended to be legal advice. It is provided to members of the Institute of Scrap Recycling Industries with the intent of giving those members a better understanding of what is happening with regard to the Chemetco Superfund Site in Hartford, Illinois. Those in attendance at, and those who may be reading this slide deck without having attended, the informational program on Thursday April 19, 2018 should seek counsel from a qualified attorney before making any decisions or taking any action with regard to either the lawsuit filed against them by the Chemetco Site PRP Group or the Settlement Offers that have been made to many of those who have been sued. Superfund issues are complicated and fact dependent; I advise you to contact your legal counsel about your specific circumstances THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA) Well intentioned act was signed into law by Jimmy Carter in 1980 Enacted in response to o Love Canal in NY, o The Valley of the Drums in Kentucky and o Times Beach in Missouri CERCLA (commonly referred to as Superfund) was meant to hold industries and businesses — such as landfill operators, chemical companies and manufacturers accountable for polluting communities across the country CERCLA Requires that the most contaminated sites be cleaned up under US EPA oversight and the costs of such cleanups should be borne by the people or companies responsible for contaminating the site Strict, joint and several liability for: o Property Owners o Facility Operators o Generators of hazardous waste o Transporters who controlled the destination CERCLA The nickname Superfund comes from taxes CERCLA imposed on petroleum, chemical and some other manufacturing industries that were placed in a dedicated fund that could be used to cleanup of sites where the polluters could not to be found o Taxes expired in 1995 and have not been reinstated o After the Superfund ran out of money, EPA has been using annual funding from Congress to pay for cleanups However, some would say some of the provisions of CERCLA are absolutely insane CERCLA Right of contribution • §113 of CERCLA provides for a right of contribution. This means that: o anyone who pays for the cleanup of a contaminated site can sue other responsible parties to try to collect some of the money that they expended o because Superfund is a strict, joint & several statute there can be absolutely ridiculous outcomes as a result of §113 WHY IS IT IMPORTANT TO THE SCRAP RECYCLING INDUSTRY? In a limited number of instances, some scrap processing facilities have been so contaminated that they have become Superfund sites More importantly, many consumers of scrap materials have been named as superfund sites and the scrap recyclers that sent their processed materials to the consuming facilities have been named as potentially responsible parties (PRPs) for cleaning up the consuming facilities THE CHEMETCO SITE STORY What was Chemetco When did it operate? Why is this important? How did it become contaminated What has EPA done thus far to clean up the site Who is the Chemetco Site PRP Group (the Group) o How did it come about o What have they done so far o Why did they sue you o Why are they proposing a settlement o What are your options WHAT ARE YOUR OPTIONS? De minimis parties can settle for a flat fee and be done with the Chemetco Site (with a few exceptions) Larger parties are being offered the ability to pay a flat fee plus a pro rata share of the prior and future costs. Defend against the lawsuit HOW CAN YOU POSSIBLY FIGHT THE LAWSUIT Limited defenses to a CERCLA action seeking to hold a potentially responsible party liable for helping to pay the costs of cleanup Only one really available to you in this particular case is the Superfund Recycling Equity Act (SREA) (pronounced sir-REE-uh) o History and overview of SREA ▻ Whats i SREA and how did it come about ▻ What does one have to do to take advantage of the SREA defense Realities of undertaking a defense to the current lawsuit SCOTT J HORNE Law Office of Scott J Horne LLC +1 202 309 2865 [email protected].
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