The Complexity and Lack of Incentives in the Release Reporting Requirements of CERCLA Section 103
By Valerie Wagner Long
INTRODUCTION
One of the original goals of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” “Superfund,” or “the Act”) was to authorize the federal government to respond swiftly to hazardous substance spills. Section 103 of the statute was designed to further that goal, by requiring the immediate reporting of certain spills to the federal government's National Response Center (the “NRC”). While there are lively discussions about the many problems with the statute as a whole and about problems with individual aspects of the statute, such as the strict joint-and-several liability scheme and the unnecessarily stiff and inflexible cleanup standards, little attention is paid to the problems of Section 103 in terms of how it operates and the level of compliance that it compels.
This lack of attention is unfortunate as Section 103 regulates an enormous amount of activity, and, this paper argues, does so in a way that discourages compliance with its goal. Section 103 regulates an incalculable number of facilities and vessels because of the extremely broad definition the statute gives to the term “facility” and the over 800 substances that it regulates. Section 103 imposes requirements on every manufacturing facility, store, business, or operation which has any reason to use any of the listed hazardous substances. This results in substantial amounts of effort for the facilities and for the government. The Environmental Protection Agency's (the “EPA” or the “Agency”) Emergency Response Program receives an average of twelve reports of hazardous substance releases each day.5 In 1994 alone there were 7,656 CERCLA notifications, but this only accounts for the reported releases; it is impossible to guess the number of releases which go unreported.
Unfortunately, this effort is not utilized as effectively as it could be. Section 103 assumes that a trained government response team can better determine the appropriate response to a spill than the person handling the substance. For the government response team to do so, all facilities must report all releases, even those that could be quickly contained without government action. But, this objective is hindered by unreported releases. If the NRC is unaware of a spill, it cannot determine the proper response. This may, in turn, result in a rash of undetected releases which, if left to migrate through soil or water, could eventually threaten human health and the environment and become tomorrow's Superfund sites. This chain of errors could result despite the fact that the source of the release considered the release unimportant at the time it occurred.
This paper will argue that Section 103 in its current form does not encourage full reporting. It will argue that although statistical evidence on the amount of compliance is difficult to find,8 the inherent problems with the mechanics of Section 103's requirements indicate a substantial number of releases may never be reported to the NRC as required. It will also attempt to explain why this problem has not been addressed, and it will offer ways to repair it. Part I will describe Section 103 and show how it and its enforcement creates incentives not to report. Part II will explore the opportunities for political reform and try to explain why no organization or individual is taking up the issue in the context of comprehensive reform. Finally, Part III will offer suggestions to encourage the timely reporting of all qualifying releases by arguing for the inclusion of more positive incentives.
One of the original goals of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” “Superfund,” or “the Act”) was to authorize the federal government to respond swiftly to hazardous substance spills. Section 103 of the statute was designed to further that goal, by requiring the immediate reporting of certain spills to the federal government's National Response Center (the “NRC”). While there are lively discussions about the many problems with the statute as a whole and about problems with individual aspects of the statute, such as the strict joint-and-several liability scheme and the unnecessarily stiff and inflexible cleanup standards, little attention is paid to the problems of Section 103 in terms of how it operates and the level of compliance that it compels.
This lack of attention is unfortunate as Section 103 regulates an enormous amount of activity, and, this paper argues, does so in a way that discourages compliance with its goal. Section 103 regulates an incalculable number of facilities and vessels because of the extremely broad definition the statute gives to the term “facility” and the over 800 substances that it regulates. Section 103 imposes requirements on every manufacturing facility, store, business, or operation which has any reason to use any of the listed hazardous substances. This results in substantial amounts of effort for the facilities and for the government. The Environmental Protection Agency's (the “EPA” or the “Agency”) Emergency Response Program receives an average of twelve reports of hazardous substance releases each day.5 In 1994 alone there were 7,656 CERCLA notifications, but this only accounts for the reported releases; it is impossible to guess the number of releases which go unreported.
Unfortunately, this effort is not utilized as effectively as it could be. Section 103 assumes that a trained government response team can better determine the appropriate response to a spill than the person handling the substance. For the government response team to do so, all facilities must report all releases, even those that could be quickly contained without government action. But, this objective is hindered by unreported releases. If the NRC is unaware of a spill, it cannot determine the proper response. This may, in turn, result in a rash of undetected releases which, if left to migrate through soil or water, could eventually threaten human health and the environment and become tomorrow's Superfund sites. This chain of errors could result despite the fact that the source of the release considered the release unimportant at the time it occurred.
This paper will argue that Section 103 in its current form does not encourage full reporting. It will argue that although statistical evidence on the amount of compliance is difficult to find,8 the inherent problems with the mechanics of Section 103's requirements indicate a substantial number of releases may never be reported to the NRC as required. It will also attempt to explain why this problem has not been addressed, and it will offer ways to repair it. Part I will describe Section 103 and show how it and its enforcement creates incentives not to report. Part II will explore the opportunities for political reform and try to explain why no organization or individual is taking up the issue in the context of comprehensive reform. Finally, Part III will offer suggestions to encourage the timely reporting of all qualifying releases by arguing for the inclusion of more positive incentives.
