These are hardly the images one associates with ski areas, nestled as they are amidst beautiful, alpine settings and providing healthy, outdoor recreation. Nevertheless, ski areas, like virtually all other sectors of our economy, frequently handle substances that have been designated as “hazardous” and, by virtue of that designation, are subject to special requirements. These requirements can range from employee training, to government notification, to site clean-up.
Although complying with these requirements can be costly and time-consuming, the risk of ignoring them is worse: violators face crushing civil liabilities and criminal penalties. Corporate managers have been held personally responsible for violations, and courts have even pinned liability on the likes of corporate officers, directors, shareholders and employees as “owners” or “operators.” Adverse publicity, whether deserved or not, can have disastrous consequences. Consequently, today’s ski area managers must stay abreast of this evolving area of law.
The scope of hazardous substance regulation is so broad that it encompasses many common substances and routine activities and circumstances found at ski areas. For example, federal laws define the following substances as hazardous or regulated substances or hazardous waste:
- gasoline and diesel in underground storage tanks;
- waste oil containing certain hazardous waste constituents;
- industrial cleaning solvents with certain flashpoints or which contain toluene, xylene, benzene and similar compounds;
- fertilizers and herbicides applied non-routinely (e.g., in too heavy a concentration);
- mine tailings that contain metals.
The mere presence or storage of these materials in a shop or maintenance area may necessitate special employee education and management programs.
Activities and occurrences that may trigger hazardous substance requirements include:
- Installing, maintaining, or removing underground or above-ground storage tanks for gasoline or diesel fuel or waste oil;
- Burning waste oil for energy recovery;
- Using waste oil or other regulated substances for vegetation control;
- Discharging wastewater, washwater, or used solvents and oils into a treatment system, basin or stream;
- Spilling fuels, oils, solvents or other hazardous substances, whether accidentally or intentionally.
Even seemingly innocent activity such as excavation may result in a regulated release of hazardous substances. For example, a particular area may have been used in the distant past as a dump for mine tailings or other waste, but is now overgrown with vegetation. If excavation disturbs the tailings, this could constitute a “disposal” or a “release” of hazardous waste under federal and state law.
Another innocent activity that can raise hazardous substance concerns is the purchase or sale of land. If the land contains hazardous waste (such as an old land fill or mine tailings) the purchaser may become financially responsible for cleaning up the site. An innocent seller may likewise incur liability for a site clean-up, even though no longer owner of the property and innocent of depositing the waste itself.
Major Federal Laws
In an article of this size, it is impossible to discuss all federal laws that govern hazardous substances. However, ski area managers should be familiar with the following laws at minimum: the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Clean Water Act (CWA), the Occupational Safety and Health Act (OSHA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). These are among the most important federal laws governing hazardous substances (see box), and are potentially applicable to ski area operations.
Ski area managers should anticipate that similar laws may also apply at the state level, as a number of states have enacted their own counterparts to RCRA and CERCLA. In addition, where a ski area inadvertently contaminates nearby land owned by another, it may incur civil liability under traditional common law theories such as trespass, nuisance, or negligence.
The manner in which these regulatory tentacles can ensnare a ski area may be illustrated through the following, admittedly exaggerated, scenario. Assume that a ski area has several aboveground and underground storage tanks containing diesel fuel and gasoline for its vehicles and heavy machinery; in its maintenance area, it stores chemicals and solvents for use in maintaining and cleaning equipment; under the maintenance area is a catch basin for used solvents, washdowns, and spills, which drains into a ditch some distance away; it also has a boiler which burns, among other fuel, used oil obtained from its vehicles and machinery; and it owns private land dotted with old mine tailings.
This ski area should be prepared to deal with the requirements of all of the major federal laws noted above: RCRA may apply to the underground storage tanks and burning of used oil; CERCLA may govern any leakage from the storage tanks, discharges from the catch basin and environmental contamination resulting from the mine tailings; CWA may regulate discharges from the catch basin if they find their way into a stream; OSHA would probably govern the presence and handling of solvents and other hazardous chemicals in the maintenance area; and EPCRA might apply to spills from the above-ground tanks that flow onto another’s property. As you can see, hazardous substance regulation is very pertinent to ski areas today, and a failure to anticipate and address these issues can be hazardous not just to the environment, but to your own pocketbook and career.
Some Suggestions
In coping with the numerous, complex, and often confusing laws regulating hazardous substances, ski area managers must take a pro-active approach to ensure compliance and avoid potential problems. To this end, a few guiding principles are useful:
1. As in other areas of environmental regulation, use experienced, competent attorneys and technical consultants to provide general guidance and assist you with specific problems when they arise. Familiarity with agency policies and interpretations, as well as the laws and regulations themselves, is vitally important because of the many “gray areas” under the laws and regulations.
2. Ensure that your area currently complies with all pertinent requirements, including those imposed by RCRA, CERCLA, and OSHA. This means ensuring that any hazardous waste (including waste oil) is properly disposed of, that underground storage tanks are properly maintained or decommissioned, that CERCLA hazardous substances have not been deposited on site, and that the pertinent OSHA requirements are satisfied. This can be accomplished by conducting an environmental audit that reviews all potential hazardous substances that are located on site and any corresponding requirements under federal and state law.
3. If your area leases property to other parties, you should ensure that such parties do not dispose of hazardous waste or release hazardous substances on the property. Otherwise, you may incur liability for any resulting contamination. Depending on the type of tenant involved, specific lease restrictions and periodic inspections may be advisable.
4. If a hazardous substance is released into the environment, you must determine whether it exceeds allowable limits, and, if so, whether governmental notification and/or remediation is necessary. Unnecessarily raising the attention of state and local officials has obvious costs, while failing to notify when legally required risks civil or criminal prosecution. If, as is often the case, the contamination approaches or, perhaps, narrowly exceeds such limits, it may be possible to approach the appropriate regulatory agency and obtain a “no-action” determination, or perhaps a low-cost remediation program.
5. Before acquiring land, a site assessment and investigation should be performed. This may include a site history, an environmental audit to determine potential on- and off-site sources of contamination, a study of the groundwater hydrogeology, and further environmental assessment if conditions so indicate. If contamination is found, it is usually advisable to require the seller to comply with all applicable notification and remediation requirements before title is passed, as well as receiving appropriate contractual protection (see following paragraph). It may also be possible to meet with the appropriate governmental agencies and negotiate a “no action” determination.
6. You should include specific warranties and representations regarding hazardous substances in all contracts involving the sale or lease of land, the construction of improvements, or any excavation work. Courts will enforce specific contractual provisions which expressly allocate liability for environmental costs and damages among private parties to a transaction. Of course, such indemnification is only as good as the other party’s financial solvency.
7. When another party has contaminated ski area land, you should approach them prior to the initiation of any major investigation, in order to enlist their cooperation and, most importantly, their financial participation. If they are uncooperative, it may be possible to sue them and recover damages under one or more of the statutes and common-law theories discussed above. However, filing a lawsuit may lead to adverse publicity and government oversight of any environmental testing or site clean-up. Therefore, you should proceed extremely carefully in the situation.
Alphabet Soup for Hazardous Wastes
Like the New Deal generations earlier, concerns over hazardous substances, water quality, and employee safety have spawned a multitude of federal laws best known by their acronyms:
RCRA. Regulates “hazardous waste,” which includes hundreds of specific substances listed in the Code of Federal Regulations, as well as substances which are ignitable, corrosive, toxic, or reactive under prescribed conditions, and gasoline. Notification and recordkeeping requirements apply to facilities that generate, treat, transport, or dispose of such waste. Specific regulations govern underground storage tanks and require registration; monitoring of operational tanks; closure of inactive tanks (including testing and removal or filling); and, if leaks have occurred, corrective action (including soil or groundwater cleanup). In addition, regulations issued earlier this year address the burning of waste oil in boilers and industrial furnaces. If the waste oil is hazardous under RCRA, burning is regulated, although most ski areas would probably qualify for a “small quantity” or other exception.
CERCLA. Regulates “hazardous substances,” including many substances regulated under RCRA and CWA, as well as additional chemicals listed in the Code of Federal Regulations (but generally not gasoline). It requires notice to EPA when such a substance is “released” at a designated rate, and, in this context, “released” means virtually any escape or emission into the environment. In addition, the owner or operator of a site where a hazardous substance has been disposed of, as well as the generator and transporter of such substances, may be liable to the government and other landowners for clean-up costs and damage to natural resources. This liability applies even where the hazardous substance was left on the property by a prior owner years ago. Although an “innocent landowner” defense is theoretically available, it has provided little protection in practice.
CWA. Regulates, among other things, oil and several hundred “hazardous substances” listed in the Code of Federal Regulations. Where a specified quantity of such substances is spilled or otherwise discharged into “waters of the United States,” EPA must be notified. With respect to oil, any discharge which causes an iridescent sheen must be reported.
OSHA. Regulates “hazardous chemicals,” which include virtually every chemical substance that poses a hazard to the physical health of a worker. Where hazardous chemicals are used or stored in the workplace, OSHA may require employers to: develop a hazard communication program; maintain material safety data sheets (MSDSs) for all such chemicals; provide special training to workers who could be exposed to such chemicals; implement special work practices, engineering controls, and personal protective equipment; include certain workers in a medical surveillance program; and ensure that all such chemicals are properly labeled.
EPCRA. Expands CERCLA’s release reporting requirement to include state and local emergency response committees, as well as a National Response Center. These notification requirements apply to the release of any CERCLA “hazardous substance,” except that EPCRA exempts any release “which results in exposure to persons solely within the site or sites on which a facility is located.” EPCRA also requires employers who are required by OSHA to maintain MSDSs to submit copies to their local government.
Note: this article is not intended to supply legal advice or solutions to individual problems.
