Document 0qwaDX75GM5pY9Ln6jqK51XjM

AGENDA CMA EXECUTIVE COMMITTEE MEETING 10:00 a.m., Tuesday, February 12, 1980 CMA Headquarters (Room 407) Washington, D. C. Call to order - Chairman Morley Administrative Matters: a. Approval of Minutes of January 7, 1980 meeting b. Approval for membership: American Chrome & Chemicals, Inc., and West Design Chemical Group, West Chemical Products, Inc. Introduction of Issue: Superfund - L. Fernandez a. Legislative Update - W. M. Stover and J. T. Estes b. New inventory data on sites - C. Sercu c. Scope of Legislative Proposals - E. B. Frost (1) Release concept (2) Degree of cleanup (3) Natural resources repair (4) Spills (5) Pre and post RCRA (6) Third party damages d. Liability issues; - C. Kent (1) Causation (2) Joint and several (3) Strict liability (4) Defenses (5) Limits on Liability (6) Conrad Kent/CMA Proposals e. Funding Concepts - R. A. Roland New Business Adjourn CMA 062672 MINUTES OF MEETING CMA EXECUTIVE COMMITTEE CMA Headquarters, Washington, D. C. February IZ, 1980 1. The meeting was called to order at 10:00 a. m. by the chairman. There were present: H. Barclay Morley, Chairman J. Earl Burrell Louis Fernandez Vincent L. Gregory, Jr. John M. Henske L. John Polite, Jr. Robert A. Roland William G. Simeral Raymond C. Tower Bruce M. Barackman, Secretary Edmund B. Frost, General Counsel By Invitation: Timothy F. Burns, CMA Geraldine V. Cox, CMA John T. Estes, Allied Chemical Corporation Donald D. Evans, CMA Richard F. Gold, Stauffer Chemical Company Stephen L. Goldstein, Olin Corporation Carl A. Gosline, CMA Juliane B. Harvey, CMA Conrad S. Kent, Stauffer Chemical Company Keith R. McKennon, The Dow Chemical Company Victor H. Peterson, CMA James C. Rowland, Union Carbide Corporation Charles L. Sercu, Dow Chemical U.S. A. 2. Minutes of the Last Meeting The minutes of the January 7, 1980 meeting, as distributed, were approved. 2. Membership Applications On the recommendation of the Membership Committee, West Design Chemical Group, Division of West Agro-Chemical, Inc. ; and American Chrome & Chemicals, Inc. were elected to membership in the Association. Report on Conseil Europeen des Federations de l'Industrie Chimique (CEFIC) Mr. Henske described a recent meeting at Brussels involving 2- - himself, Mr. Morley and Messrs. Solvay and Lanz, president designate and president, respectively, of CEFIC, to explore how our International Advisory Group could better relate to CEFIC on issues concerning health and environmental regulations on both sides of the Atlantic. CEFIC in tends some organizational modifications so that they can better interface with us. Informal meetings will continue at periodic intervals to ensure that the two organizations don't work at cross purposes, 5. Superfund Mr. Morley introduced the subject by emphasizing the importance of Superfund to the chemical industry, stressing the necessity for everyone to understand the issues involved, and suggesting the desirability of considering a special committee to respond to day-to-day developments, possibly along the lines of the Association's committee established at the time TSCA was before the Congress. Dr. Fernandez, concurring, described recent meetings of the Super fund Steering Committee to discuss strategy regarding the three major issues ~- scope, liability, and funding. Up front throughout the delibera tions was the offical position of CMA which remains unchanged. Mr. Burns reported on the present status of proposed legislation, Exhibit A. Mr. Estes observed that while a bill may be reported out of subcommittee this congressional session, it is too early to judge the prob ability of its enactment. He noted that the legislation proposed is so un acceptable that it is almost unamendable. By means of a VuGraph presentation, Mr. Sercu provided estimates, derived from various surveys, of the size of the problem relating to hazard ous substances spills and disposal sites. He noted that, based on available data, it is estimated that it could cost up to $300 million to clean up orphan disposal sites. Mr. Frost addressed the scope of S. 1480, inviting attention to the "Staff Working Paper" on the bill distributed to those present, and discussed certain of its provisions comparing them to the CMA position on Superfund, Exhibit B. For a better understanding of his comments on liability issues re lating to S. 1480 which were to follow, Mr. Kent presented a Glossary of Terms, Exhibit C. He then commented on the onerous concepts contained in S. 1480 concerning causation, joint and several, strict liability, defenses, and limits on liability. He concluded with a review of Liability Principles, Exhibit D, proposed for CMA's endorsement. It was received without ob jection. A background paper discussing in depth the liability/causation issues in Superfund was distributed to those present. CMA 062674 -3- After excusing invitees and staff, except for Messrs. Barackman, Frost, Gold, and Goldstein, the committee convened in executive session to consider further the implications of pending Superfund legislation. The previously established Association position in regard to Superfund concern ing scope, liability and funding was reviewed and reaffirmed. Reflecting the importance of the Superfund issue, it was agreed to establish an ad hoc Superfund Policy Group reporting to the Executive Committee. It would be composed of about six members, two of whom would be from the Executive Committee. Dr. Fernandez was appointed group chairman with authority to speak for CMA on Superfund policy matters within policy limi tations to be determined. The need for a charter and mode of operation was recognized. The committee then adjourned for lunch, after which it continued in regular session. Mr. Morley reviewed the establishment of the Executive Committee Superfund Policy Group and the appointment of Dr. Louis Fernandez as the * group chairman. Other members of the group would include Messrs. Robert A. Roland, John T. Estes, Allied Chemical Corporation, Conrad S. Kent, Stauffer Chemical Company, and Charles L. Sercu, Dow Chemical U. S.A. (Mr. W. C. Krumrei was named subsequently to complete the group. ) Discussion then followed relating to policy guidance for the group. The sense of the discussion was that the group, working with the CMA struc tures already in place, could speak for the Association through the group's chairman in regard to Superfund policy matters as circumstances may re quire. It was understood that any posture taken would reflect the established official position of CMA and that contemplated changes in strategy and actions considered to be appropriate and in the Association's best interest could be directed subject to prior consultation with the Executive Committee. A concern was then expressed regarding CMA's posture vis-a-vis initiatives at the state level in connection with disposal sites. The Executive Committee was advised that the mechanism is being developed for CMA to interface with states in regard to hazardous waste matters. Certified correct: chairman CMA Executive Committee Bruce M. Barackman Secretary exhibit A SUPERFUND: LEGISLATIVE STATUS UPDATE Congressional activity on Superfund proposals have moved into the legislative stage of Subcommittee markups. The Senate Environment and Public Works' Subcommittees on Environmental Pollution and Resource Protection released. January 31, 1980 a "Staff Working Paper" on S. 1480, The "Staff Working Paper" was the focus of the Subcommittees markups held February 5, 6, 7, and 8, 1980. The Subcommittees are scheduled to continue markup February 19, 20, 21, 1980. In the House The Interstate and Foreign Commerce Subcommittee on Trans portation and Commerce still has the Superfund issue listed as a top priority for 1980, but no action is scheduled at this time. Representative James Florio (D-NJ), Subcommittee Chair man, has initiated meetings with CMA and other industry groups to study possible solutions to the Superfund issue. Representative Bob Eckhardt (D-TX), Chairman of the Sub committee on Oversight and Investigations, is about to release a third draft of his Superfund-proposal. Representative Eckhardt is not on the Subcommittee with jurisdiction, thus he will wait for full Committee consideration before he advances his Superfund concept. The House Public Works and Transportation Sub commit: tee on Water Resources has taken no further action to date on H.R. 85. the oil spill Superfund Bill. Key questions before the Subcom mittee will be the creation of a Superfund for hazardous sub stances spills, and whether or not to meld such a fund with the ocean oil spills bill. The Merchant Marine and Fisheries Committee, which originated H.R. 85, is thought to prefer enactment of a separate oil spill Superfund. The Administration and the Environmental Protection Agency (EPA) continue to pursue a Superfund that would include coverage of oil spills, hazardous substances spills and abandoned and inactive waste disposal sites. EPA continues to come under attack for its failure to provide concrete figures to justify its complex and massive approach. EPA still views Superfund as a top priority issue. CMA EC - 2/12/80 CMA 062676 : o r. DIMENSIONS OF THE 3 >-j ^ j-oS> ::i the su?erftJHD_de3a.te ioccnioc - Any Release# Zero Risk# S Permitted Air I Emissions T U Air Spills A T U02 Effluent I 0 Water Spills N S Land Spills Oil Spills C 0 Any RCRA V Landfill E R Any Non RCRA E Landfill D Orphan* Dumpsite H A Z A R D Marginal Risk P R E S E N T Substantial E Risk 0 Imminent * Risk A u R E 0 F M A T E R I A L SCOPE OP THE PROBLEM SUBJECT MATTER COVERAGE Toxic Under* a r. y C i r c urn s t an c e Marginal .cxiciiy Chronically* 1CX1G j , j | | Acutely*" Toxic Ultra*" Hazardous I Ecology* N In General T E 5 E S T Aestetie Interests P R Natural 0 Resources T E Lost Income* C T Property* E Damage D 1 CMA Hunan * Health EC-2/12/80 i T Retribution*Y Punisbment P E Restoration 0 F Personal Injury Compensation Third Party Economic Damages R E Cleanup M E Containment * D Y Emergency* Response SCOPE OF RESPONSE EXTENT OF RELIEF | T I E P A R A M E T E R S Perpetual# Care Anticipate Pel ieve * Past Problems 1 CMA 062677 Glossary of Terms Exhibit C I. Responsible vs. Liable A. Responsible - May be accountable as the primary cause, motive or agent; moral, legal or mental accountability B. Liable - obligated according to law; compelled or answerable to satisfaction, compensation or restitution. II. Tort - a private or civil wrong or injury; there must be a breach or viola tion by one party of a legal duty imposed by general law (not by contract) which is owed to another party. III. Causation - The conduct in question was a factor in bringing about the harm A. Proximate Cause - defendant's conduct was a substantial factor In causing the injury B. Direct Cause - Generally a component of proximate cause; defendant's conduct sets into motion a chain of events leading to the injury, without any intervening cause C. Intervening Cause - Unanticipated or unforeseeable event or conduct of another which interrupts the chain of events between defendant's conduct and the injury. IV. Negligence vs. Strict Liability A. Negligence - requires proof of 3 elements: (i) Lack of reasonable care by defendant, (ii) which creates a foreseeable unreasonable risk of injury, and (iii) defendant's breach of due care was the proximate cause of injury. B. Strict Liability - does not involve fault, lack of care or state of mind of defendant (1) For produce liability cases -- requires unreasonable hazard by virtue of a defective "condition" in product (including design, hazard warnings, labeling and packaging) and injury proximately caused by the defective condition (2) For other cases -- the activity itself is abnormally dangerous and such activity was the proximate cause of the injury; since no question of "defect" or standard of care arises,, the liability is said to be "absolute". CMA EC - 2/12/80 CMA 062678 Superfund Liability Principles Exhibi: D 1- The imposition of a federal tort law system is unwarranted for private injuries 2. Joint and several liability is unacceptable as a principle for apportionment of responsibility 3. Strict liability for one's conduct in an area involving "hazardous substances" is acceptable as basis for governmental recovery, provided that: ` (a) "Hazardous Substance" definition is reasonable (b) Causation principle is adopted based on a liable party's conduct being a substantial factor in creating the harm ("tight" causation! (c) Adequate defenses, as close to Sec. 311 of the Clean Water Act as may be achievable (d) Limited to emergency containment and essential clean-up * Liability limits would be desirable -- although not likely to be set at a level which can be expected to apply very often -- if no significant "trade-off" is required. CMA EC - 2/12/80 CMA 062679