PRIOR PRINTER'S NO. 3008 PRINTER'S NO. 3925
No. 2206 Session of 1986
INTRODUCED BY FREEMAN, GEORGE, MANDERINO, LEVDANSKY, MICHLOVIC,
SCHULER, MORRIS, RYBAK, FEE, LUCYK, JOSEPHS, KOSINSKI,
SERAFINI, ARGALL, TIGUE, McHALE, KUKOVICH, D. W. SNYDER,
J. TAYLOR AND ITKIN, FEBRUARY 19, 1986
AS REPORTED FROM COMMITTEE ON CONSERVATION, HOUSE OF
REPRESENTATIVES, AS AMENDED, SEPTEMBER 22, 1986
AN ACT
1 Amending the act of July 7, 1980 (P.L.380, No.97), entitled "An
2 act providing for the planning and regulation of solid waste
3 storage, collection, transportation, processing, treatment,
4 and disposal; requiring municipalities to submit plans for
5 municipal waste management systems in their jurisdictions;
6 authorizing grants to municipalities; providing regulation of
7 the management of municipal, residual and hazardous waste;
8 requiring permits for operating hazardous waste and solid
9 waste storage, processing, treatment, and disposal
10 facilities; and licenses for transportation of hazardous
11 waste; imposing duties on persons and municipalities;
12 granting powers to municipalities; authorizing the
13 Environmental Quality Board and the Department of
14 Environmental Resources to adopt rules, regulations,
15 standards and procedures; granting powers to and imposing
16 duties upon county health departments; providing remedies;
17 prescribing penalties; and establishing a fund," providing
18 for the cleanup of hazardous waste sites and for compensation
19 therefor; establishing the Hazardous Waste Abandoned Site
20 Cleanup and Compensation Fund; providing for a surcharge on
21 hazardous waste and for claims and awards; and providing
22 penalties.
23 The General Assembly of the Commonwealth of Pennsylvania
24 hereby enacts as follows:
25 Section 1. The act of July 7, 1980 (P.L.380, No.97), known
26 as the Solid Waste Management Act, is amended by adding an
1 article to read:
2 ARTICLE VII-A
3 HAZARDOUS WASTE CLEANUP AND
4 COMPENSATION
5 Section 701-A. Hazardous Waste Abandoned Site Cleanup and
6 Compensation Fund.
7 (a) There is hereby established within the Treasury of the
8 Commonwealth a separate account to be known as the Hazardous
9 Waste Abandoned Site Cleanup and Compensation Fund, hereafter
10 known as the fund. This fund is established as a nonlapsing
11 revolving fund to be administered by the department to provide
12 for the assessment, inspection and cleanup of abandoned
13 hazardous waste sites and for the compensation for damages to
14 persons or property from the improper handling, treating,
15 storing and transportation of hazardous waste and the improper
16 operation or closure of hazardous waste disposal facilities.
17 (b) Surcharge fees charged to generators of hazardous waste
18 and owners or operators of hazardous waste disposal facilities
19 in this Commonwealth shall be deposited in the fund for the
20 purposes specified in this section and in a manner to be
21 prescribed by the department. All interest received on moneys in
22 the fund shall be credited to the fund.
23 Section 702-A. Hazardous waste surcharge.
24 (a) Effective January 1, 1986, there is hereby levied on all
25 hazardous waste generated in this Commonwealth a surcharge fee
26 in the amount of $10 per ton to be paid to the fund. In the
27 event that any hazardous waste is measured by other than
28 tonnage, the surcharge shall be levied on the equivalent thereof
29 as shall be determined by the department. Each generator of
30 hazardous waste shall, on or before the twentieth day of the
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1 month following the close of each tax period, render an
2 accounting and record of the total waste generated in that
3 period on such forms as the department may require and make full
4 payment of the surcharge in a manner to be prescribed by the
5 department.
6 (b) Effective January 1, 1986, there is hereby levied on all
7 owners or operators of hazardous waste disposal facilities in
8 this Commonwealth a surcharge fee in the amount of $5 per ton of
9 waste accepted, to be paid to the fund. In the event that any
10 hazardous waste is measured upon acceptance at the disposal
11 facility by other than tonnage, the surcharge shall be levied on
12 the equivalent thereof as shall be determined by the department.
13 Each owner or operator of a hazardous waste disposal facility
14 shall, on or before the twentieth day of the month following the
15 close of each tax period, render an accounting and record of the
16 total waste accepted at its facility in that period on such
17 forms as the department may require and make full payment of the
18 surcharge in a manner to be prescribed by the department.
19 (C) TO CARRY OUT THE PURPOSES OF THIS ACT AND IN ORDER TO <--
20 CARRY OUT THE NATIONAL AND STATE POLICIES TO MINIMIZE LAND
21 DISPOSAL OF HAZARDOUS WASTE BY ENCOURAGING PROPERLY CONDUCTED
22 RECYCLING AND REUSE, THE SURCHARGE FEE LEVIED UNDER SUBSECTION
23 (A) OF THIS SECTION SHALL BE $5 PER TON FOR HAZARDOUS WASTE
24 WHICH IS RECYCLABLE MATERIAL UNDER 40 CFR § 261.6 AND SUCCESSOR
25 FEDERAL AND STATE REGULATIONS AND WHICH IS SENT BY THE GENERATOR
26 TO A VERIFIED RECYCLING FACILITY FOR RECYCLING OR REUSE; AND THE
27 SURCHARGE LEVIED UNDER SUBSECTION (A) SHALL NOT APPLY TO WASTE
28 GENERATED IN THE PROCESS OF RECYCLING RECYCLABLE MATERIALS
29 LISTED IN 40 CFR § 261.6(A)(2) AND (3) AND ITS SUCCESSOR FEDERAL
30 AND STATE REGULATIONS, AND SO VERIFIED BY THE DEPARTMENT:
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1 PROVIDED, THAT ANY HAZARDOUS WASTE GENERATED IN THE RECYCLING
2 PROCESS IS DISPOSED OF AT A PERMITTED DISPOSAL FACILITY. ALL
3 VERIFICATIONS REFERRED TO IN THIS SUBSECTION SHALL BE IN WRITING
4 AND APPROVED BY THE DEPARTMENT.
5 Section 703-A. Escrow accounts.
6 (a) All surcharge fees collected and deposited in the fund
7 shall be placed in two escrow accounts for the following
8 purposes:
9 (1) Seventy-five percent of the moneys collected from
10 the surcharge fee shall be placed in an Abandoned Site Escrow
11 Account within the fund to be used solely for the following:
12 (i) To identify, assess and inspect all abandoned
13 sites in this Commonwealth where it is suspected
14 hazardous waste exists which may pose a potential threat
15 to human health or the environment. This shall be
16 performed by the department and be completed within two
17 years of the effective date of this article. To perform
18 this duty, the department shall establish an abandoned
19 site investigative unit within the department, and the
20 required inspection shall be conducted by this unit
21 within two years of the effective date of this article.
22 (ii) As Commonwealth matching funds for Federal
23 funds received under the Comprehensive Environmental
24 Response, Compensation and Liability Act of 1980 (Public
25 Law 96-510, 94 Stat. 2767, 42 U.S.C. § 9601 et seq.).
26 (iii) To cover the cost to the Commonwealth for
27 operation and maintenance and post-closure care of sites
28 where remedial action has been completed under the
29 Comprehensive Environmental Response Compensation and
30 Liability Act of 1980.
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1 (iv) To finance all necessary remedial action at
2 abandoned hazardous waste sites in this Commonwealth
3 which pose a threat to human health or the environment.
4 (v) For administrative costs incurred by the
5 department directly related to the administration of the
6 fund. NO MORE THAN 2% MAY BE EXPENDED FOR THE COLLECTION <--
7 AND ADMINISTRATION OF THE FUND.
8 (2) Twenty-five percent of the moneys collected from the
9 surcharge fees and deposited in the fund shall be placed in a
10 Compensation Escrow Account within the fund to be used solely
11 for:
12 (i) Compensation to parties for certain damages, no
13 matter by whom sustained, proximately resulting from the
14 handling, transportation, treatment, storage and disposal
15 of hazardous waste and the improper operation or closure
16 of hazardous waste disposal facilities.
17 (ii) Administrative costs incurred by the department
18 directly related to the administration of the fund,
19 including legal costs associated with the Office of
20 Protector General in exercising any subrogation rights
21 under section 709-A.
22 (b) The determination by the department of priority sites
23 for remedial action, using money from the Abandoned Site Escrow
24 Account, shall be based on selection criteria to be developed in
25 the form of regulations which shall consider, but not be limited
26 to, the following:
27 (1) Possible risk to the population.
28 (2) Hazard potential of substances at the site.
29 (3) Potential for contaminating drinking water supplies
30 and other pathways that affect human health.
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1 (4) Potential for destruction of sensitive or important
2 ecosystems.
3 Section 704-A. Payments from the fund.
4 (a) Upon submittal of claims as provided for in section 705-
5 A, the fund shall make payments for certain costs and expenses,
6 no matter by whom sustained, proximately resulting from the
7 handling, treatment, transportation, storage and disposal of
8 hazardous waste and the improper operation and closure of
9 hazardous waste disposal facilities. These costs and expenses
10 shall be limited to the following:
11 (1) The actual total cost of restoring, repairing or
12 replacing any real or personal property damaged or destroyed
13 to a condition equivalent to what existed prior to the damage
14 or destruction, but only to its predamaged state, provided
15 that payment for any single claim shall not exceed $30,000.
16 (2) The actual total cost of restoration and
17 replacement, where possible, of any natural resources damaged
18 or destroyed, including any public or private potable water
19 supply, but only to its predamaged state, provided that
20 payment for any single claim shall not exceed $30,000.
21 (3) The actual total cost of immediate medical expenses
22 reasonably necessary for treatment of personal injuries
23 proximately related to hazardous waste handling, treatment,
24 transportation, storage and disposal, provided that payment
25 for any single claim shall not exceed $15,000. The fund shall
26 be considered as secondary coverage to any other medical or
27 health insurance which covers the claimant, and the fund
28 shall not pay for immediate medical expenses paid by any
29 other form of insurance. The fund shall not cover, for the
30 purposes of this section, any person whose exposure is
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1 related to his employment and who is eligible for
2 compensation under the act of June 2, 1915 (P.L.736, No.338),
3 known as "The Pennsylvania Workmen's Compensation Act." For
4 the purposes of this paragraph, "immediate medical expenses"
5 shall mean medical, dental or other health care expenses
6 directly related to an acute episode of illness.
7 (4) An allowance for wages and salary lost as a result
8 of personal injuries proximately related to hazardous waste
9 handling, treatment, transportation, storage and disposal.
10 The fund shall not cover, for the purposes of this section,
11 any person whose exposure is related to his employment and
12 who is eligible for compensation under "The Pennsylvania
13 Workmen's Compensation Act." The amount of said allowance
14 shall be calculated in the same way and to provide the same
15 amount per week as compensation for lost wages under "The
16 Pennsylvania Workmen's Compensation Act," except that said
17 allowance under this section shall not be paid for a period
18 of time in excess of 26 weeks for any single claim.
19 (5) The actual total costs of the design, construction,
20 installation, operation and maintenance of any device or
21 action deemed necessary by the department to clean up,
22 remedy, mitigate, monitor or analyze any threat to the public
23 health, safety or welfare of the citizens of this State,
24 including the installation and maintenance of monitoring
25 wells and the sampling and analysis of any public or private
26 potable water supply.
27 (b) The fund shall not pay and shall not be liable for
28 damages for pain and suffering, mental anguish, emotional
29 distress, or any other type of damages not involving the direct
30 costs and expenses enumerated in subsection (a).
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1 Section 705-A. Claims.
2 (a) Claims for damages made under section 704-A(1), (2) or
3 (5) shall be filed with the department not later than one year
4 after the date of discovery of damage, or not later than six
5 years after the date of the incident which caused the damage.
6 Claims for damages made under section 704-A(3) or (4) shall be
7 filed with the department within one year of the date that
8 claimant possessed, or reasonably should have possessed:
9 knowledge of the injury, knowledge of the operative cause of the
10 injury, and knowledge of the causative relationship between the
11 injury and the operative conduct. All claims for damages shall
12 be filed in a manner to be prescribed by regulation. The
13 department shall prescribe appropriate forms and procedures for
14 such claims, which shall include a provision requiring the
15 claimant to make a sworn verification of the claim to the best
16 of his knowledge. The department shall not fail to process a
17 claim because the claimant is unable, to the best of his
18 knowledge, to demonstrate fault or identify a responsible party.
19 For the purposes of this section, the date of the incident shall
20 be deemed to be the date of the first official notice given by
21 the department to the operator of the waste site.
22 (b) Any person who knowingly gives or causes to be given any
23 false information as a part of any such claim, in addition to
24 any other penalties herein or elsewhere prescribed, commits a
25 misdemeanor of the third degree.
26 (c) Upon receipt of any claim, the department shall as soon
27 as practicable inform all affected parties of the claim.
28 (d) (1) The department shall attempt to promote and arrange
29 a settlement between the claimant and the person responsible
30 for the damage. If the source of the damage can be determined
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1 and liability is conceded, the claimant and the alleged
2 responsible party may agree to a settlement, which shall be
3 final and binding upon the parties and which will waive all
4 recourse against the fund.
5 (2) If the responsible party is unknown or cannot be
6 determined, the claimant and the department shall attempt to
7 arrange a settlement of any claim against the fund, following
8 procedures to be prescribed by regulation. The department is
9 authorized to enter and certify payment of such settlement,
10 subject to such proof and procedures contained in regulations
11 to be promulgated by the Environmental Quality Board.
12 Section 706-A. Fund balance and awards.
13 (a) In the event that the total of claims awarded exceeds
14 the current balance of the fund, the immediate award shall be
15 paid on a prorated basis, and all claimants paid on a prorated
16 basis shall be paid, as determined by the department, on a pro
17 rata share of all moneys received by the fund until the total
18 amount of the proven damages is paid to the claimants. The
19 Environmental Quality Board shall also establish, by regulation,
20 priorities for the payment of claims based on extreme hardship
21 or extreme existing or imminent hazard.
22 (b) In each fiscal year following any year in which the
23 balance in the fund equals or exceeds $50,000,000, no surcharge
24 shall be levied unless either of the following occurs:
25 (1) The current balance in the fund is less than
26 $25,000,000.
27 (2) Pending claims against the fund and the cost of
28 planned remedial actions exceed 50% of the existing balance.
29 Section 707-A. Limit on awards.
30 The damages which may be recovered by the fund without regard
19860H2206B3925 - 9 -
1 to fault, subject to the defenses enumerated in section 708-A
2 against a generator or owner or operator of a facility, shall
3 not exceed $10,000,000 for each facility, except that such
4 maximum limitation shall not apply, and the generator or owner
5 or operator shall be liable, jointly and severally, for the full
6 amount of such damages, if it can be shown that such discharge
7 was the result of either of the following:
8 (1) Gross negligence or willful misconduct within the
9 knowledge and privity of the owner, operator or person in
10 charge.
11 (2) A grossly negligent or willful violation of
12 applicable safety, construction or operating standards or
13 regulations.
14 Damages which may be recovered from, or by, any other person
15 shall be limited to those authorized by common or statutory law.
16 Section 708-A. Defenses.
17 An act of God or occurrence caused solely by war or sabotage,
18 or a combination thereof, shall be the only defenses which may
19 be raised by any owner or operator of a facility or generator
20 responsible for any damage arising under the provisions of this
21 article, but said defense shall not be available if it can be
22 shown that the damage would not have occurred but for the
23 negligence of the owner or operator.
24 Section 709-A. Subrogation.
25 Payment of any damages by the fund shall give the department
26 all rights of the claimant to recovery against the responsible
27 party of those particular costs or damages actually paid by the
28 fund. The department, through the Office of the Protector
29 General, shall then seek satisfaction from the responsible party
30 in a court of law if the responsible party does not voluntarily
19860H2206B3925 - 10 -
1 reimburse the fund, provided that the department shall first
2 give reasonable written advance notice to the claimant of its
3 intention to file suit against the responsible party and provide
4 the claimant a reasonable period of time to join in the
5 commencement of said suit or to institute a separate suit
6 against the responsible party. In any such suit, the department
7 need prove only that an unlawful act occurred which was the
8 responsibility of the generator, owner, operator or responsible
9 party. The department may compromise and settle the amount
10 sought for cost and damages from the responsible party and any
11 person accused under this article, but only to the extent of its
12 actual subrogation interest. Nothing in this section shall limit
13 or preclude a claimant, after receipt of payment of costs or
14 damages from the fund, from seeking any other civil or
15 injunctive remedies provided by existing law against the
16 responsible party, except that the subrogation rights of the
17 fund shall be protected by the claimant from any money damages
18 received.
19 Section 710-A. Penalty.
20 Any owner or operator of a hazardous waste disposal facility
21 or generator who fails to file required forms or fails to pay
22 the surcharge, as required by this article, or who makes or
23 causes to be made, or who gives or causes to be given, any
24 return, certificate, affidavit, representation, information,
25 testimony or statement required or authorized by this act, or
26 rules or regulations adopted hereunder, which is willfully
27 false, or who fails to keep any records required by this
28 article, or rules and regulations adopted hereunder, in addition
29 to any other penalties herein or elsewhere prescribed, commits a
30 misdemeanor of the second degree.
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1 Section 711-A. Remedies cumulative.
2 (a) Nothing in this article shall in any way relieve any
3 person, corporation, partnership, business or other entity from
4 liability with regard to the health and safety of any other
5 person exposed to or affected by hazardous waste, nor shall it
6 relieve any person, corporation, partnership, business or other
7 entity from any other duty or responsibility under any other
8 provision of law.
9 (b) Nothing in this article shall be deemed to preclude the
10 pursuit of any other civil or injunctive remedy by any person,
11 including, but not limited to, civil claims and suits for money
12 damages. The remedies provided and damages recoverable in this
13 article are in addition to those provided by existing law, but
14 no person who receives compensation for damages or cleanup costs
15 pursuant to any other Commonwealth or Federal law shall be
16 permitted to receive compensation for the same damages or
17 cleanup costs under this article.
18 Section 712-A. Annual report.
19 The secretary shall make an annual report to the Governor and
20 the General Assembly which shall describe the costs and damages
21 paid by and recovered for the fund, and the economic and
22 environmental impact on this Commonwealth as a result of the
23 administration of this article.
24 Section 2. This act shall take effect in 60 days.
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