Header graphic for print
Science, Law & the Environment Emerging Topics in Environmental Law

Manufacturers: A New Class of Liability for Cleanup Statutory Schemes?

Posted in Clean Water Act, Cleanup & Superfund, Emerging Policy, Uncategorized, Water Quality

Most people familiar with state cleanup laws or the federal counterpart, CERCLA, are familiar with four general classes of liable parties:

1) Owners or operators of contaminated facilities;

2) Past owners or operators of facilities at the time of release or disposal of hazardous substances;

3) Parties that arranged for disposal of hazardous substances at the site being remediated; and

4) Under certain circumstances, parties that transported hazardous substances to a site being remediated.

There are some differences and nuances between different statutory schemes, but this basic framework of liability has been with us since CERCLA was first enacted in 1980.

Is it time to add to or modify this basic framework? In Washington State, the answer may be yes.

By way of context, Washington’s Department of Ecology has been wrestling with the changing nature of toxics in the environment. Forty years ago, toxics were introduced to the environment in a variety of non-point and end-of-pipe ways. Release reduction strategies first focused on end-of-pipe or point sources as low hanging fruit–but have shifted over time to address non-point and diffuse sources. The flip side of this preventative scheme is the above remedial framework, which focuses liability either on status (as a current landowner, for instance) or some demonstrable link between a release of a hazardous substance and the remediation of that release–essentially providing a mechanism to address historic releases to the environment.

But, what about diffuse sources such as phthalates leaching from plastics, or perfluorinated compounds used in fire-retardant foams and polishes? In the case of phthalates, Washington is already seeing recontamination of waterways that have undergone significant remedial activities to address historic releases. Prevention of releases from offgassing of plastics and foam is difficult. Banning these compounds is likewise a complex process, but is being done (the deca-BDE ban is an example).

But what about addressing the presence of these compounds in the environment? The sources of these new classes of compounds don’t easily fall into the four traditional liability categories. Do we want to pursue the car owner who has plastic undercarriage components as an operator of a facility that is releasing phthalates? Likewise, what about the homeowner washing a carpet treated with scotchguard that ends up in the sewer system?

Even the “all consuming tornado” of cleanup liability may not reach these parties for a variety of reasons. But, what about the manufacturers? Is there a way to shift the costs of remediating phthalate contamination back onto the parties manufacturing plastics?

The Washington Toxics Reduction Strategies Workgroup released a white paper recently that contains a series of recommendations aimed at such a shift.

The entire white paper contains 12 recommendations, including phasing out products containing toxic materials, and evaluating tax schemes. Recommendation number 7 is aimed specifically at the issue of how to account for the external costs imposed on society by a manufacturer of a toxic product that ends up in the environment. The Workgroup cites the troubles Washington has had with sediment sites being recontaminated by phthalates as an example. As cleanup standards are driven lower and lower by increased fish consumption rates, the “need” to address these toxics in the environment will become more acute as more of Washington is defined as dirty. So, the issue of toxics in sediments–despite the great successes in reducing end-of-pipe releases–may be an increasing issue in Washington, driving greater pressure to remediate those sediments, and resulting in the need to come up with more money to fund those remedial activities.

The Workgroup has been wrestling with this convergence of factors. To address the need to remediate toxics from diffuse sources, the Workgroup recommends legislative exploration of “whether there is a more efficient and effective way to more equitably and predictably require some or all of the entities in a product’s supply chain (producers, manufacturers and retailers, to assume responsibility for harm caused by toxic chemicals in products they produce and sell,” noting that the study would include “review of potential combinations of both statutory liability and reforms to the current tort system.”

The reference to “statutory liability” makes me believe adding a category of liable parties to Washington’s cleanup law, the Model Toxics Control Act, could someday be on the table. The reality is that, even if there is an aggressive effort to phase out toxics like phthalates and PFCs in consumer products–as we’ve seen with things like PCB and leaded gasoline phase-out–the societal cost of addressing past releases of such compounds can be enormous, and can persist for decades. While a tax on new products could be large enough to fund remedial efforts aimed at past releases, the reality of such a tax is that it likely won’t end up being applied to those purposes (Washington’s existing Hazardous Substance Tax is a good example of how the legislature can raid such funds).

The pitfalls and nuances of trying to create a new class of responsible parties under the state cleanup law are numerous and beyond this blog post (I’m already beyond my self-imposed 600 word limit). How do you deal with retroactivity? How do you address useful products off-gassing to the environment during normal use? How do you approach allocation of remedial costs among potentially hundreds of manufacturers? Stay tuned, I’ll update if these recommendations gain any traction with the legislature.