“Cradle to Grave Responsibility” and “Long-Tail Liability” are terms that greatly affect anyone who purchases, handles or manages hazardous substances. Cradle to Grave Responsibility refers to the fact that any person who generates a hazardous waste material is responsible for that waste from the time it is generated until the end of time. With that being said, some hazardous substances tend to stick around for longer periods of times than others, including chlorinated solvents (solvents commonly used in dry cleaning and manufacturing operations such as PCE and TCE). Because there is no statute of limitations that relieves someone of this long-term responsibility, the management of hazardous substances is a Long-Tail Liability.
The responsible party (RP) in these situations is any individual, or business entity, who owns or operates a facility that is impacted with hazardous substances, or anyone who accepts any hazardous substances for transport to a facility if the transporter selected the facility. When the RP is no longer physically, financially or administratively present the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, which is commonly known as Superfund) applies to determine liability. CERCLA may require that the Federal or State government cleans the contamination at the site and later approaches other RPs to reimburse those costs, or RPs may have the chance to offer their own cleanup approach beforehand.
An RP has different options when a settlement demand or lawsuit is filed for contribution by the government. Ignoring the suit or demand is not recommended, since the government can be very tough on those who choose to do so. The best option for an RP is to hire a consultant to help evaluate their liability and then investigate and remediate the contamination, if necessary. If active remediation is actually needed, it is possible that an RP can use historic insurance policies as a source of funding the environmental work.
In his article from the September 2013 issue of Cleaner and Launderer entitled “Cradle to Grave Responsibility and Long-Tail Liability,” Stephen Henshaw, President and CEO of EnviroForensics, discusses these options and offers his expert advice. He also suggests ways to deal with Long-Tail Liability to help protect individuals and companies managing hazardous substances.