Chapter 22 BL 240

Authority to Regulate Greenhouse Gases

A growing concern is that greenhouse gases, such as carbon dioxide , contribute to global climate change. The Clean Air Act, however, does not specifically mention emissions. Therefore, for years, the EPA did not regulate emissions from motor vehicles. The EPA went on to conclude that greenhouse gases, including emissions, do constitute a public danger. The agency began regulating greenhouse gases in 2011.

Nuisance

Under the common law doctrine of nuisance, persons may be held liable if they use their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property. In these situations, the courts commonly balance the harm caused by the pollution against the costs of stopping it. To obtain relief from pollution under the nuisance doctrine, a property owner may have to identify a distinct harm separate from that affecting the general public. This harm is referred to as a "private" nuisance. Under the common law, individuals were denied standing (access to the courts) unless they suffered a harm distinct from the harm suffered by the public at large. Some states still require this. A public authority (such as a state's attorney general), though, can sue to stop or reduce a "public" nuisance.

CERCLA, as amended, has four primary elements:

1. It established an information-gathering and analysis system that enables the government to identify chemical dump sites and determine the appropriate action. 2. It authorized the EPA to respond to emergencies and to arrange for the clean-up of a leaking site directly if the persons responsible fail to clean up the site. 3. It created a Hazardous Substance Response Trust Fund (also called Superfund) to pay for the clean-up of hazardous sites using funds obtained through taxes on certain businesses. 4. It allowed the government to recover the cost of clean-up from the persons who were responsible (even remotely) for the hazardous substance releases.

Elements of Permit System

1. National effluent (pollution) standards set by the EPA for each industry. 2. Water-quality standards set by the states under EPA supervision. 3. A discharge permit program that sets water-quality standards to limit pollution. 4. Special provisions for toxic chemicals and for oil spills. 5. Construction grants and loans from the federal government for publicly owned treatment works, primarily sewage treatment plants.

Environmental Impact Statements

All federal agencies must take environmental factors into consideration when making significant decisions. The National Environmental Policy Act requires that an environmental impact statement (EIS) be prepared for every major federal action that significantly affects the quality of the environment. An EIS must analyze the following: 1. The impact on the environment that the action will have. 2. Any adverse effects on the environment and alternative actions that might be taken. 3. Any irreversible effects the action might generate. An action qualifies as "major" if it involves a substantial commitment of resources (monetary or otherwise). An action is "federal" if a federal agency has the power to control it. If an agency decides that an EIS is unnecessary, it must issue a statement supporting this conclusion. Private individuals, consumer interest groups, businesses, and others who believe that a federal agency's activities threaten the environment often use EISs as a means to challenge those activities.

Negligence and Strict Liability

An injured party may sue a business polluter in tort under the theories of negligence and strict liability. The basis for a negligence action is the business's failure to use reasonable care toward a party whose injury was foreseeable and caused by the lack of reasonable care. For instance, employees might sue an employer whose failure to use proper pollution controls contaminated the air and caused the employees to suffer respiratory illnesses. In addition, there is a growing number of lawsuits for what is known as a toxic tort, which is a civil wrong caused by exposure to a toxic substance, such as asbestos, radiation, or hazardous waste. Businesses that engage in ultrahazardous activities—such as the transportation of radioactive materials—are strictly liable for any injuries the activities cause. In a strict liability action, the injured party does not need to prove that the business failed to exercise reasonable care.

Water Pollution

Federal regulations governing the pollution of water can be traced back to the 1899 Rivers and Harbors Appropriations Act. These regulations prohibited ships and manufacturers from discharging or depositing refuse in navigable waterways without a permit. In 1948, Congress passed the Federal Water Pollution Control Act (FWPCA), but its regulatory system and enforcement powers proved to be inadequate.

Violations of the Clean Air Act

For violations of emission limits under the Clean Air Act, the EPA can assess civil penalties of up to as much as $101,000 per day. Additional fines of up to $7,500 per day can be assessed for other violations, such as failing to maintain the required records. To penalize those who find it more cost-effective to violate the act than to comply with it, the EPA is authorized to obtain a penalty equal to the violator's economic benefits from noncompliance. Persons who provide information about violators may be paid up to $10,000. Private individuals can also sue violators. Those who knowingly violate the act may be subject to criminal penalties, including fines of up to $1 million and imprisonment for up to two years (for false statements or failures to report violations). Corporate officers are among those who may be subject to these penalties. The phrase "knowingly violate" was at the center of the dispute in the following case.

The Clean Water Act

In 1972, Congress enacted amendments to the FWPCA, and the amended act became known as the Clean Water Act (CWA). The CWA established the following goals: 1. make waters safe for swimming, 2. protect fish and wildlife, and 3. eliminate the discharge of pollutants into the water. The CWA also set specific time schedules to meet its goals, which were later extended by amendment and by the Water Quality Act.Footnote Under these schedules, the EPA limits the discharge of various types of pollutants based on the technology available for controlling them.

State and Local Regulations

In addition to the federal regulations to be discussed shortly, many states have enacted laws to protect the environment. State laws may restrict a business's discharge of chemicals into the air or water, or regulate its disposal of toxic wastes. States may also regulate the disposal or recycling of other wastes, including glass, metal, plastic containers, and paper. Additionally, states may restrict emissions from motor vehicles. City, county, and other local governments also regulate some aspects of the environment. For instance, local zoning laws may be designed to regulate the growth of cities and suburbs or to protect the natural environment. In the interest of safeguarding the environment, such laws may prohibit certain land uses. In addition, cities and counties may impose rules regulating methods of waste removal, the appearance of buildings, the maximum noise level, and other aspects of the local environment. State and local regulatory agencies also play a significant role in implementing federal environmental legislation. Typically, the federal government relies on state and local governments to enforce federal environmental statutes and regulations such as those regulating air quality.

Violations and Penalties

It is a violation of FIFRA to sell a pesticide or herbicide that is unregistered or has had its registration canceled or suspended. It is also a violation to sell a pesticide or herbicide with a false or misleading label or to destroy or deface any labeling required under the act. Penalties for commercial dealers include imprisonment for up to one year and a fine of up to $50,000. Farmers and other private users of pesticides or herbicides who violate the act are subject to a $1,000 fine and incarceration for up to thirty days. Note that a state can also regulate the sale and use of federally registered pesticides.

Joint and Several Liability of PRPs

Liability under Superfund is usually joint and several. In other words, a person who generated only a fraction of the hazardous waste disposed of at the site may nevertheless be liable for all of the clean-up costs. CERCLA authorizes a party who has incurred clean-up costs to bring a "contribution action" against any other person who is liable or potentially liable for a percentage of the costs.

Mobile Sources

Mobile sources of pollution include automobiles and other vehicles. Regulations governing air pollution from mobile sources specify pollution standards and establish time schedules for meeting the standards. The EPA periodically updates the pollution standards in light of new developments and data, usually reducing the amount of emissions allowed.

Minimizing Liability

One way for a business to minimize its potential liability under Superfund is to conduct environmental compliance audits of its own operations regularly. That is, the business can investigate its own operations and property to determine whether any environmental hazards exist. The EPA encourages companies to conduct self-audits and promptly detect, disclose, and correct wrongdoing. Companies that do so are subject to lighter penalties for violations of environmental laws. (Fines may be reduced by as much as 75 percent.) In addition, under EPA guidelines, the EPA will waive all fines if a small company corrects environmental violations within 180 days after being notified of the violations (or 360 days if pollution-prevention techniques are involved). The policy does not apply to criminal violations of environmental laws, though, or to violations that pose a significant threat to public health, safety, or the environment.

Standards for Equipment

Regulations generally specify that the best available control technology, or BACT, be installed. The EPA issues guidelines as to what equipment meets this standard. Essentially, the guidelines require the most effective pollution-control equipment available. New sources must install BACT equipment before beginning operations. Existing sources are subject to timetables for the installation of BACT equipment and must immediately install equipment that utilizes the best practical control technology, or BPCT. The EPA also issues guidelines as to what equipment meets this standard. The EPA must take into account many factors when issuing and updating its rules. Some provisions of the CWA instruct the EPA to weigh the cost of the technology required relative to the benefits achieved. Even when it is not required to do so, the EPA may engage in a cost-benefit analysis when adopting new rules and standards.

Potentially Responsible Parties

Superfund provides that when a release or a threatened release of hazardous materials from a site occurs, the following persons may be held responsible for cleaning up the site: 1. A person who generated wastes disposed of at the site. 2. A person who transported wastes to the site. 3. The person who owned or operated the site at the time of the disposal. 4. The current owner or operator. A person falling within one of these categories is referred to as a potentially responsible party (PRP). If the PRPs do not clean up the site, the EPA can clean up the site and recover the clean-up costs from the PRPs. Superfund imposes strict liability on PRPs, and that liability cannot be avoided through transfer of ownership. Thus, selling a site where hazardous wastes were disposed of does not relieve the seller of liability, and the buyer also becomes liable for the clean-up. Liability also extends to businesses that merge with or buy corporations that have violated CERCLA.

Permit System for Point Source Emissions

The CWA established a permit system, called the National Pollutant Discharge Elimination System (NPDES), for regulating discharges from "point sources" of pollution. Point sources include industrial, municipal, and agricultural facilities. Under this system, industrial, municipal, and agricultural polluters must apply for permits before discharging wastes into surface waters. NPDES permits can be issued by the EPA and authorized state agencies and Indian tribes, but only if the discharge will not violate water-quality standards. Special requirements must be met to discharge toxic chemicals and residue from oil spills. NPDES permits must be renewed every five years.

Wetlands

The CWA prohibits the filling or dredging of wetlands unless a permit is obtained from the Army Corps of Engineers. The EPA defines wetlands as "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support . . . vegetation typically adapted for life in saturated soil conditions." Therefore, the government allows landowners to seek a jurisdictional determination (JD) from the U.S. Army Corps of Engineers as to whether the CWA applies. If the CWA does apply, the landowner will be required to obtain a permit before filling or dredging the property. If it does not apply, no permit is required.

Stationary Sources

The Clean Air Act authorizes the EPA to establish air-quality standards for stationary sources, such as manufacturing plants. Nonetheless, the act recognizes that the primary responsibility for implementing these standards rests with state and local governments. The EPA sets primary and secondary levels of ambient standards—that is, the maximum permissible levels of certain pollutants. The states then formulate plans to achieve those standards. Different standards apply depending on whether the sources of pollution are located in clean areas or polluted areas and whether they are existing sources or major new sources.

Maximum Achievable Control Technology

The Clean Air Act does not establish specific emissions standards for each hazardous air pollutant. Instead, the act requires major new sources of pollutants to use pollution-control equipment that represents the maximum achievable control technology, or MACT, to reduce emissions. The EPA issues guidelines as to what equipment meets this standard.

Air Pollution

The Clean Air Act provides the basis for issuing regulations to control multistate air pollution. It covers both mobile sources and stationary sources of pollution.

Superfund

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, regulates the clean-up of disposal sites where hazardous waste is leaking into the environment. A special federal fund was created for that purpose.

EPA Actions

The EPA can cancel or suspend registration of substances that are identified as harmful and can inspect the factories where the chemicals are made. A substance is deemed harmful if human exposure to the substance, including exposure through eating food, results in a risk of one in a million (or higher) of developing cancer.

Hazardous Air Pollutants

The EPA standards are aimed at controlling hazardous air pollutants—those likely to cause death or a serious irreversible or incapacitating condition, such as cancer or neurological or reproductive damage. The Clean Air Act requires the EPA to list all regulated hazardous air pollutants on a prioritized schedule.

Pesticides and Herbicides

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the use of pesticides and herbicides. These substances must be: 1. registered before they can be sold, 2. certified and used only for approved applications, and 3. used in limited quantities when applied to food crops.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) was Congress's response to growing concerns over the effects of hazardous waste materials on the environment. The RCRA required the EPA to determine which forms of solid waste should be considered hazardous and to establish regulations to monitor and control hazardous waste disposal. Among other things, the act requires all producers of hazardous waste materials to label and package properly any hazardous waste to be transported. Amendments to the RCRA decrease the use of land containment in the disposal of hazardous waste and require smaller generators of hazardous waste to comply with the act.

Drinking Water

The Safe Drinking Water Act requires the EPA to set maximum levels for pollutants in public water systems. The EPA is particularly concerned about pollutants from underground sources, such as toxic substances and wastes leaked from landfills or disposed of in underground injection wells. Public water system operators must come as close as possible to meeting the EPA's standards by using the best available technology that is economically and technologically feasible. Under the act, each supplier of drinking water is required to send every household that it supplies with water an annual statement describing the source of its water. Suppliers must also disclose the level of any contaminants in the water and any possible health concerns associated with the contaminants. In addition, suppliers must notify the public of any other problems with the water they supply, such as when the water fails to meet established standards.

Toxic Substances

The Toxic Substances Control Act regulates chemicals and chemical compounds that are known to be toxic, such as asbestos and polychlorinated biphenyls (PCBs). The act also controls the introduction of new chemical compounds by requiring an investigation of any possible harmful effects from these substances. The act authorizes the EPA to require that manufacturers, processors, and other organizations planning to use chemicals first determine their effects on human health and the environment. The EPA can regulate substances that could pose an imminent hazard or an unreasonable risk of injury to health or the environment. The EPA can also require special labeling, limit the use of a substance, set production quotas, or prohibit the use of a substance altogether.

Environmental Regulatory Agencies

The primary federal agency regulating environmental law is the Environmental Protection Agency (EPA), which was created in 1970 to coordinate federal environmental responsibilities. Other federal agencies with authority for regulating specific environmental matters include the Department of the Interior, the Department of Defense, the Department of Labor, the Food and Drug Administration, and the Nuclear Regulatory Commission. Most federal environmental laws provide that citizens can sue to enforce environmental regulations if government agencies fail to do so—or to limit enforcement actions if agencies go too far. Typically, a threshold hurdle in such suits is meeting the requirements for standing to sue.

Defenses

There are a few defenses to liability under CERCLA. The most important is the innocent landowner defense, which may protect a landowner who acquired the property after it was used for hazardous waste disposal. To succeed, the landowners must show that at the time the property was acquired, they had no reason to know that it had been used for hazardous waste disposal. The landowners must also show that at the time of the purchase, they undertook "all appropriate inquiries." That is, they investigated the previous ownership and uses of the property to determine whether there was reason for concern about hazardous substances. In effect, then, this defense protects only property owners who took precautions and investigated the possibility of environmental hazards before buying the property.

Common Law Actions

Those responsible for operations that created dirt, smoke, noxious odors, noise, or toxic substances were sometimes held liable under common law theories of nuisance or negligence. Today, injured individuals continue to rely on the common law to obtain damages and injunctions against business polluters.

Violations of the Clean Water Act

Under the CWA, violators are subject to a variety of civil and criminal penalties. Civil penalties range from $10,000 per day to $25,000 per day, with a limit of $25,000 per violation. Criminal penalties apply only if a violation was intentional. These penalties range from a fine of $2,500 per day and imprisonment for up to one year to a fine of $1 million and fifteen years' imprisonment. Injunctive relief and damages can also be imposed. The polluting party can be required to clean up the pollution or pay the cost of doing so.