United States: A Cleaner's Guide To Environmental Liability

This article was originally published in the North Carolina Association of Launderers and Cleaners' carolina clean magazine, Holiday 2017 issue. To view the original publication, click here.

OK, OK, I get it: your mother didn't raise you to be a lawyer. But the exposure to environmental claims that characterizes many drycleaning operations makes it imperative that cleaners understand something about the legal framework for that liability.

I will deal principally with two federal statutes: the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation & Liability Act ("CERCLA", or "Superfund"). These statutes, the regulations intended to implement them, and the judicial decisions that interpret them, are enormously complicated. Don't worry about that. This is not a scholarly law review article; I will concentrate on the laws' potential impacts upon cleaners.

RCRA was adopted in 1976, an early attempt to regulate the "cradle to grave" movement, storage, and disposal of hazardous wastes. Although it is a federal law, it is administered in our State by the North Carolina Department of Environmental Quality ("DEQ") and, in particular, by DEQ's Division of Waste Management ("DWM").

DWM administers a confusing array of environmental regulatory programs, but let's focus on just two groups of them. These clusters of programs are administered by the Hazardous Waste Section and the Superfund Section.

DWM's Hazardous Waste Section consists of two principal branches, the Facility Management Branch and the Compliance Branch. Facility Management is responsible for issuing necessary RCRA permits and for directing the investigation and remediation of releases of hazardous waste to the environment from RCRA-permitted facilities. The Compliance Branch is responsible for ensuring, well, compliance with applicable regulations and permits by hazardous waste generators, transporters, and treatment, storage, and disposal ("TSD") facilities.

You can read the paragraph just above and file away the information in it, then move on. You need to understand it only because these are the folks with whom your hazardous waste transporter and TSD contractor must deal. But you can help them help you if you understand a little about the programs under which they are regulated.

As a cleaner, on the other hand, your company may well be a RCRA hazardous waste generator but your company is almost certainly a "very small generator" or "conditionally exempt small quantity generator", generating less than 100 kilograms (about 220 pounds) of hazardous waste per month. You are responsible for properly characterizing your company's hazardous waste when it goes out the door, but you are exempt from the other, more detailed, regulations applicable to both large and small quantity generators. You are not required to obtain a unique EPA identification number, for example. You are not required to prepare a formal contingency plan for emergencies. You are allowed to accumulate up to 1,000 kilograms of hazardous waste, and there is no time limit on how long it may accumulate on site (word to the wise on that, however: get it out of your plant on a regular basis).

Thus, on RCRA issues, you will almost certainly deal directly with neither of DWM's Hazardous Waste Section branches but, rather, with the Superfund Section's Dry-cleaning Solvent Cleanup Act ("DSCA", but you knew that already) program and, in particular, with DSCA's Compliance Unit. You already know these folks. They inspect plants principally for DSCA best management practices, but also for such RCRA requirements as the prohibition against open storage containers.

That is what you need to know about RCRA, in a nutshell. Let's move on to CERCLA.

RCRA deals with hazardous wastes. CERCLA deals with hazardous substances. For us, the difference is not important. US EPA lists all hazardous substances in the Code of Federal Regulations, and some of them might surprise you. The silver in those dimes in your pocket, for example, is a hazardous substance. Halogenated solvents, including perchloroethylene, are also hazardous substances. Petroleum products, on the other hand, are not – some say this is a testament to the lobbying power of the petroleum industry.

CERCLA was originally adopted in 1980 and substantially amended in 1986. It is complicated; it has kept judges and lawyers scratching their heads for over three decades now and over the years it has generated quite a number of Supreme Court opinions intended to reconcile contradictory interpretations by the federal courts below.

Here is what CERCLA is not. Despite the nickname "Superfund", it is not a huge pot of federal dollars kept on hand to pay for the correction of environmental problems created by private parties. In fact, perhaps the key words in the statute's title are "Compensation" and "Liability". CERCLA is, as far as cleaners may be concerned, a mechanism for raising money to pay for those cleanups – from the guilty and the innocent alike.

CERCLA facilities may originally have been conceived of by the law's drafters as places where massive quantities of hazardous substances were deliberately disposed of, such as the infamous Love Canal site in Niagara Falls, New York, where elementary schools and a kindergarten playground were built directly over or adjacent to a large burial ground for drums full of hazardous substances. But, under current interpretations of the law, even a small accidental spill can provide the basis for CERCLA liability.

Those who face CERCLA liability are referred to as "potentially responsible parties", or "PRPs". PRPs include, for sure, the party that owned or operated a facility when the release took place there. PRPs include, as well, the current post-spill owner, who is presumed to have conducted a pre-purchase environmental investigation and to have therefore bought the facility at a discount. The current post-spill operator on the property is also a PRP, if the operator is a different company from the owner. And the list of PRPs will include any party that transported the hazardous substances to the site at which they were released into the environment (this is sometimes called "transporter liability").

But CERCLA PRPs also include anyone who arranged, by contract or otherwise, for the transportation of the hazardous substances, or for their treatment or disposal at the property at which they were released ("arranger liability").

Cleaners who deal with hazardous substances are almost inevitably exposed to arranger liability.

What is the nature of PRP liability? Well, first of all, it is what lawyers and judges call "strict liability". The liable party need not have caused the release. It does not need to have done anything wrong. It is simply liable because of its status as an owner, operator, transporter, or arranger. There are virtually no exceptions.

And to what degree is any particular party liable? Liability under CERCLA is "joint and several". That is, each and every PRP at a CERCLA site is theoretically liable for the entire expense of the cleanup.

In the real world, however, a single party is seldom responsible for paying for the entire cost of a CERCLA remediation. US EPA or the DEQ Superfund Branch typically holds one or more of the larger PRPs responsible and forces them to begin the cleanup. Then those initial PRPs, by persuasion, negotiation, or litigation, force other PRPs to cover their costs or contribute to the expense of the cleanup.

Incidentally, CERCLA has two statutory mechanisms for compensating the parties that perform the cleanup; cost recovery and contribution. The difference is not important to us, but you should be aware of both terms.

Superfund cleanups can consume millions of dollars. So what are the bottom lines for cleaners?

First, be extremely careful about the waste transporters with which you do business. Know where your hazardous wastes are going, and who will be responsible for their treatment of disposal. Hiring a company that cuts corners could cost your business a lot of money.

Second, if you have any reason to suspect that the property on which you do business has become contaminated by the release of a hazardous substance, be proactive. Get the property tested, and if the release is confirmed get the property into DSCA. The North Carolina DSCA program is probably the best in the nation, and the costs your business will have to cover directly are minimal when compared to the alternative, the expense of a cleanup for which your company could be held entirely liable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions