Everyone's Backyard
Legal Corner: Hold Your State Responsible
In January 1990, the State of California was found liable for the cost of cleanup at the notorious Stringfellow Acid Pits, a toxic dump site near Riverside California. Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), popularly known as "Superfund," persons or companies that generate to)dc waste, own or operate a site where to)dc waste poses a threat to the environment or public health and safety, and/or arrange for the disposal of toxic waste at such a site, are responsible for the costs of cleanup -costs that, in the case of Stringfellow, can easily total hundreds of millions of dollars.
What is remarkable about the Stringfellow decision is that the state of California neither owned nor operated Stringfellow, never generated waste disposed there, nor transported waste to the site. (Over thirty corporations that did so have already been found liable for cleanup costs.) The State licensed the facility, inspected it periodically, and took emergency action once it had determined that the site threatened human health and the environment. Although the State argued strenuously that its actions at Stringfellow were part of its traditional regulatory role, a jury found, and the Court confirmed, that the state is liable for an as yet undetermined percentage of the cleanup costs.
To be sure, the extent of the State's role at Stringfellow was unprecedented, but so was the liability decision. Although state regulatory decisions are often challenged at the time they are made, particularly when they impact the environment, states are rarely found liable for the consequences of their regulatory decisions when, twenty years after the fact, environmental damage occurs.
The impact of the Stringfellow decision is already being felt, particularly in California. Indeed, in a context that is likely to have profound national implications, at least one agency of the State is objecting to the licensing of a low-level nuclear waste disposal site because of concerns that the State may there, too, be found liable for subsequent environmental damage. The project, known as Ward Valley, demonstrates how the Stringfellow decision is likely to
The State of California solicited applications for the construction and operation of a Low-level Radioactive
Waste (LLRW) disposal site at Ward Valley. The Ward Valley site is owned by the federal government, which has agreed to transfer ownership of the site to the State for the purpose of constructing a LLRW disposal facility. Four companies submitted applications to the State, but three of the four applicants withdrew, citing potential liability problems. The fourth applicant, US Ecology, was ranked last by the State Department of Health Services (DHS), the agency responsible for licensing the facility.
Despite its own concerns about the company, DHS is recommending that the Ward Valley site be licensed to US Ecology. However, the question of the State's potential liability has been raised by State Controller Gray Davis and others, and threatens to derail the licensing.
Potential state liability in connection with Ward Valley could come from a variety of sources. First, the State will actually own the site. Second, the State is licensing and regulating the facility, and many questions have been raised about the location of the site -- a mere twelve miles from the Colorado River, a major source of drinking water for Southern California -- and the site design -- essentially an unlined ditch that could leak. Third, under the terms of the proposed agreement with US Ecology, after 30 years of operation, the State would be responsible for the closure of the site and for post-closure monitoring activities. Fourth, the State, notably through the University of California, is a generator of some low-level nuclear waste. Finally, very serious questions have been raised about the licensee, US Ecology. Two of the three low-level waste sites operated by U.S. Ecology have leaked. At one, in Maxey Flats, Kentucky, US Ecology is arguing that the State of Kentucky should be solely liable for the site (See Legacy For More).
Prior to the Stringfellow decision, it was unlikely these liability issues would ever have been considered and even less likely that they would have been raised by a State officer, such as the Controller. After Stringfellow, states simply cannot afford to ignore their potential liability.
For environmentalists, the Stringfellow decision can be a potent new tool. Most significantly, the Stringfellow decision should force states to take licensing and regulatory decisions more seriously States will need to more closely scrutinize applicants and project designs and demand additional safety features because if something goes wrong, the state may well find itself defending against costly litigation -- and paying enormous claims. As in the case of Ward Valley, the pressure to consider liability is not likely to come from the environmental regulatory agencies but from those charged with ensuring the fiscal health of the state. Controllers, treasurers, governors, and legislators, who may not have been environmental allies in the past, may be swayed by hard 'dollars. The result may well be to build greater accountability into the regulatory process.
Editor Note: This special Legal Corner was written by guest writer Lisa Foster who is Executive Director of California Common Cause and is an attorney for the Concerned Neighbors in action group of Riverside. Foster explains how in a 1990 court decision may be used as a precedent to hold state regulations which fail to protect the health and safety of the public.
