Chapter 38: Environmental Law
A person who violates the Clean Water Act may be subject to A. Civil liability, but only for the actual harm caused by the violations. B. Criminal liability, but only if the person knowingly violated the CWA. C. Civil and criminal liability. D. No liability because the CWA, like the NEPA, pertains only to the actions of federal governmental agencies.
C. Civil and criminal liability. Answer (C) is correct. Persons who violate the CWA are subject to civil and criminal liability, e.g., damages, civil penalties and cleanup costs. Fines of as much as $50,000 a day and prison terms of up to 3 years are possible sanctions for "knowing violations."
Part D of a state implementation plan (SIP) is required to be submitted by a state that has not attained the NAAQS for any listed pollutant in one or more air quality control regions located within its borders. Which of the following is a provision that a Part D SIP must contain? A. A system for issuing permits to allow new or modified major stationary sources to emit air pollutants. B. A mechanism for closing highways located in residential areas where the actual levels of pollution exceed primary and secondary NAAQSs. C. Provision for the implementation of all reasonably available control measures (RACM) as expeditiously as possible. D. Before full implementation of RACM, a requirement to use the best available control technology (BACT).
A. A system for issuing permits to allow new or modified major stationary sources to emit air pollutants. Answer (A) is correct. The CAA prescribes many requirements for Part D. One is the permit requirement for new or modified major stationary sources.
Which of the following actions should a business take to qualify for leniency if an environmental violation has been committed? I. Conduct Environmental Audits II. Report Environmental Violations to the Government A. I and II B. I only C. II Only D. Neither
A. I and II Answer (A) is correct. Congress has enacted a wide variety of laws to protect and improve the nation's environment. The EPA has the primary responsibility for administering these laws. The emphasis of national environmental policy is to prevent harm through education as well as regulation and enforcement. In evaluating the appropriate civil or criminal penalty for an environmental law violation, courts and the EPA consider certain factors that may justify leniency. These include a business conducting periodic audits to determine compliance, self-reporting of possible violations to the EPA or other government agencies, and the violator's compliance history.
Under the federal statutes governing water pollution, which of the following areas is regulated? I. Dredging of Coastal or Freshwater Wetlands II. Drinking Water Standards A. I and II B. I only C. II only D. Neither
A. I and II Answer (A) is correct. Under the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, standards have been established regulating discharges of pollutants into navigable waters. The term "navigable waters" is interpreted to include wetlands. Thus, dredging of coastal or freshwater wetlands falls within the statute. The Safe Drinking Water Act provides national standards for public water systems. Private wells are not regulated.
Which of the following remedies is available against a real property owner to enforce the provisions of federal acts regulating air and water pollution? I. Citizen Suits against the Environmental Protection Agency to Enforce Compliance with the Laws II. State Suits Against Violators III. Citizen Suits Against Violators A. I, II, and III B. I and II C. II and III D. I and III
A. I, II, and III Answer (A) is correct. Most environmental statutes permit some form of citizen suit. These statutes grant citizens the right to participate in or initiate civil enforcement actions. The citizens must, however, notify the EPA and Department of Justice. The primary responsibility for enforcing air quality standards lies with the states, but the federal government has the right to step in and enforce the standards when the states fail to.
The Resource Conservation and Recovery Act (RCRA) defines hazardous waste broadly. The act generally applies to which of the following? A. Solid waste. B. Liquid waste. C. Corrosive ash buried in an inactive waste site. D. Airborne particulate matter.
A. Solid waste. Answer (A) is correct. The policy of RCRA is reduction or elimination of hazardous waste as soon as possible. The act defines hazardous waste as solid waste that may cause or significantly contribute to an increase in mortality or serious illness or pose a hazard to human health or the environment if improperly managed. RCRA applies primarily to operating facilities and to new waste, rather than to abandoned or inactive sites.
Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), if land is found to be contaminated, which of the following parties would be least likely to be liable for cleanup costs? A. A bank that foreclosed a mortgage on the land and purchased the land at the foreclosure sale. B. A parent corporation of the corporation that owned the land. C. A minority shareholder of the public corporation that owned the land. D. A trustee appointed by the owner of the land to manage the land.
C. A minority shareholder of the public corporation that owned the land. Answer (C) is correct. The CERCLA imposes liability for site remediation costs. These costs may be allocated to any one or all of the following potentially responsible parties (PRPs): (1) current and past owners, including trustees and operators of the site; (2) parties who transported wastes to the site; and (3) parties who arranged for wastes to be disposed of or treated, either directly with an owner/operator or indirectly with a transporter. Moreover, corporate officers who were responsible for disposing of hazardous waste and secured creditors who participate in management of a waste site have been held to be PRPs. However a minority shareholder of a public company is not a PRP. Such a party has at risk only the investment in the entity.
The environmental impact statement (EIS) lies at the heart of the NEPA. Which of the following states a condition that must be present before a federal agency is required to prepare an EIS? A. There must be a recommendation or report on a proposal for legislation or certain other "major" federal action. B. If a "major" federal action is involved, all that is needed is a slight chance that a small amount of irreparable environmental damage may result. C. An embryonic discussion of a legislative proposal is all that is necessary to trigger the requirement for an EIS. D. Congress must specifically direct a federal agency to begin preparing an EIS.
A. There must be a recommendation or report on a proposal for legislation or certain other "major" federal action. Answer (A) is correct. The NEPA directs federal agencies to prepare an EIS for inclusion in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment.
Under the Clean Air Act, a major stationary source is A. A facility whose emissions will cause an air quality control region of a state to exceed the primary NAAQS. B. A source that directly emits 10 tons per year or more of sulphur dioxide. C. Any stationary facility or source of air pollutants that emits 2 tons per year or more of any air pollutant. D. Any source of air pollutants that indirectly emits 10 tons per year or more of an air pollutant for which an NAAQS has been promulgated.
B. A source that directly emits 10 tons per year or more of sulphur dioxide. Answer (B) is correct. A major stationary source is any stationary facility or source of air pollutants that directly emits, or has the potential to emit, 10 tons per year or more of any hazardous air pollutant or 25 tons per year of any combination of hazardous pollutants. The NAAQSs cover six pollutant categories: lead, carbon monoxide, sulphur dioxide, nitrogen oxides, ozone, and particulates.
Portions of the requirements under the Clean Water Act (CWA) can be viewed as technology forcing, i.e., requirements that force industry to implement or design new or innovative techniques for reducing pollutant discharges. This concept is best reflected in the CWA's requirement that certain point sources use the best A. Practicable control technology currently available (BPT). B. Available technology economically achievable (BAT). C. Conventional pollutant control technology (BCT). D. Generic technology overall achievable (BGT).
B. Available technology economically achievable (BAT). Answer (B) is correct. As the name suggests, BAT is the most stringent of the technology requirements under the CWA. Unlike BPT and BCT, BAT does not require the EPA to take into account prevailing industry practices or cost-benefit analyses when establishing BAT requirements. Thus, BAT best reflects the concept of technology-forcing requirements.
Before actually preparing an EIS, a federal agency is required under the NEPA to A. Obtain local approval for its proposed actions through an official referendum presented to the people of the locality that will be affected by the agency's actions. B. Consult with any federal agency that has special expertise with respect to any environmental impact involved. C. Disregard any comments made by any federal agency with special expertise because, in effect, the NEPA requires that each federal agency become its own expert in any environmental area. D. Obtain approval for its proposed actions from the highest official in each affected locality.
B. Consult with any federal agency that has special expertise with respect to any environmental impact involved. Answer (B) is correct. Prior to preparing an EIS, the federal agency preparing the action must consult with any federal agency that has jurisdiction over the proposal or special expertise with respect to any environmental impact involved. This is consistent with another broad NEPA requirement of a systematic, interdisciplinary approach to decision making.
Which of the following statements about the National Environmental Policy Act (NEPA) is most likely to be false? A. The NEPA requires federal agencies to consider environmental consequences in their decision-making process. B. The NEPA allows the federal government to bring suit against any private person who violates NEPA's provisions. C. Under the NEPA, federal agencies do not have to give environmental considerations priority over other concerns in their decision-making processes. D. The NEPA augments the power of existing agencies with respect to considering environmental consequences of proposed actions.
B. The NEPA allows the federal government to bring suit against any private person who violates NEPA's provisions. Answer (B) is correct. The provisions of NEPA focus on federal governmental actions. Federal agencies are specifically directed to incorporate an analysis of environment consequences in their decision-making processes. Actions of private persons are affected by the NEPA only when federal involvement (approval, funding, etc.) is necessary before such persons may act (e.g., federal approval before drilling for oil in ocean waters within U.S. jurisdiction). Otherwise, NEPA does not directly concern activities of private persons.
The most widely used regulatory approach to pollution control in the United States is A. Pollution charges and fees. B. Private markets in which pollution rights can be bought and sold. C. Environmental standards and penalties for noncompliance. D. Total deregulation of pollution control resulting in state regulation with no federal involvement. Answer (D) is incorrect. The environment is subject to federal, state, and municipal regulations.
C. Environmental standards and penalties for noncompliance. Answer (C) is correct. Congress passed the National Environmental Policy Act and formed the Environmental Protection Agency to control the pollution of air, water, and land in the United States. Other legislation, such as the Clean Air Act, Water Pollution Control Act, Noise Control Act, and Solid Waste Disposal Act, has been passed by Congress. Many states have enacted environmental laws that in some instances are more stringent than the federal standards. Violation of federal and state environmental regulations are subject to civil and criminal penalties stated in the written legislation.
Under CERCLA, proof by a preponderance of the evidence of which of the following is not a defense to liability? A. Release of hazardous substances was caused solely by a force majeure. B. Release of hazardous substances was caused solely by an act of war. C. Payment of cleanup costs will result in personal or business financial ruin. D. The release was caused by an act or omission of an unrelated third party, and the owner or operator exercised reasonable care and took reasonable precautions.
C. Payment of cleanup costs will result in personal or business financial ruin. Answer (C) is correct. Liability under CERCLA is retroactive, strict, and joint and several. Thus, exercise of due care or the inability to pay damages is not an absolute bar to liability under CERCLA.
Under the NEPA, if a federal agency determines that an EIS is not necessary, it must nonetheless A. Inform the governor of each state that will be affected by its actions of the decision not to prepare an EIS. B. Prepare and circulate for public comment a statement of nonassessment of environmental consequences (NEC). C. Prepare a finding of no significant impact (FONSI) setting forth the reasons why the proposed action does not require an EIS. D. Inform the Director of the EPA, via certified mail, why an EIS is not required.
C. Prepare a finding of no significant impact (FONSI) setting forth the reasons why the proposed action does not require an EIS. Answer (C) is correct. An agency must consider environmental issues at the earliest stage of planning. The threshold decision is whether to prepare an EIS. If the proposed action is on an agency list of actions that do or do not require an EIS, the appropriate step is taken automatically. Otherwise, an environmental assessment is prepared. If the decision is that an EIS is not needed, regulations promulgated by the Council on Environmental Quality that interpret the NEPA require the federal agency to prepare a FONSI setting forth the reasons.
The Resource Conservation and Recovery Act of 1976 (RCRA) imposes requirements on generators, transporters, and owners of waste. A generator may include A. A person the law recognizes as holding title to waste with high uranium content. B. A person engaged in off-site transportation by water of hazardous waste. C. A person whose process produces hazardous waste. D. All of the answers are correct.
D. All of the answers are correct. Answer (D) is correct. The RCRA is designed to provide comprehensive control of hazardous waste. A generator must, for example, prepare a Uniform Hazardous Waste Manifest to identify and accompany the hazardous waste at all times. A generator is any person whose act or process produces hazardous waste. A transporter may be a generator as well if (s)he also fits the above definition. For example, a transporter might generate hazardous waste by allowing two wastes to mix in transit.
An EIS need not contain A. The environmental impact of the proposed action. B. Alternatives to the proposed action. C. Any adverse environmental effects that cannot be avoided. D. An independent opinion on the proposed action prepared by the Council on Environmental Quality.
D. An independent opinion on the proposed action prepared by the Council on Environmental Quality. Answer (D) is correct. An EIS must contain, in detail, the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided should the proposal be implemented, alternatives to the proposed action, the effects on maintaining the long-term productivity of the environment affected by the proposal, and the irreparable commitment of resources as a result of the action. The NEPA established the Council on Environmental Quality in the Executive Office of the President. It has an advisory function but has also promulgated regulations. It does not render opinions.
Which of the following is most likely not covered by the Clean Water Act? A. Boston Harbor. B. The Mississippi River. C. A tributary of the Mississippi capable of sustaining barge traffic through several states. D. Sawyer's Ditch, a small creek feeding into a farm pond, both of which are located wholly within the same parcel of land in South Carolina and never achieve a depth of more than 1 ft.
D. Sawyer's Ditch, a small creek feeding into a farm pond, both of which are located wholly within the same parcel of land in South Carolina and never achieve a depth of more than 1 ft. Answer (D) is correct. The concept of a sovereign's ownership of its navigable waterways can be traced to early common law in England. This concept, in much the same form, is carried forward and permeates the CWA's definition of navigable waters, the jurisdictional basis of the act. In its most general sense, waters subject to the federal jurisdiction of the United States must be capable of providing navigation in the aid of interstate commerce and be located within 3 miles of the U.S. shoreline.
Which of the following statements regarding the Clean Water Act (CWA) is true? A. It allows persons to discharge pollutants into waters subject to its jurisdiction as long as navigation thereon will not be permanently obstructed. B. The CWA subjects all bodies of water located in the United States, whether flowing or not, to its protection. C. The notion of protecting waters within the jurisdiction of the United States began with the CWA. D. The CWA seeks to restore and maintain the physical and biological integrity of the waters of the United States.
D. The CWA seeks to restore and maintain the physical and biological integrity of the waters of the United States. Answer (D) is correct. The CWA (1972) substantially amended the Federal Water Pollution Control Act of 1948. It seeks to restore and maintain the physical and biological integrity of the waters of the United States. Its objectives are to render water suitable for recreation and propagation of fish and other wildlife and to eliminate discharges of pollutants.
Under the Clean Air Act, a state must submit a state implementation plan (SIP) after the promulgation of a national ambient air quality standard (NAAQS). The Environmental Protection Agency must approve the SIP if all the statutorily prescribed SIP requirements are contained therein. Which of the following is not a general SIP requirement? A. The SIP must contain a plan for attaining primary NAAQSs as expeditiously as practicable. B. The SIP must contain a plan for attaining secondary NAAQSs within a reasonable time. C. The SIP must include an enforcement program regarding emission limitations for modifying, constructing, or operating any stationary source. D. The SIP must provide for a so-called pollution tax, which the CAA stipulates must be no less than $500 per stationary source.
D. The SIP must provide for a so-called pollution tax, which the CAA stipulates must be no less than $500 per stationary source. Answer (D) is correct. Nowhere in the CAA is a SIP required to contain a pollution tax. However, the CAA does provide for civil and criminal sanctions. The primary NAAQSs are public health oriented, and the secondary standards are directed toward protection of vegetation, climate, economic values, etc. Also, point sources are defined as stationary (e.g., power plants and factories) and moving (automobiles, etc.), and standards have been issued for each category.
A person who desires to build a new major stationary source must first obtain a permit. Which of the following will not be a condition of obtaining such a permit in a state that must submit Part D of a state implementation plan? A. The proposed new source must comply with the lowest achievable emission rate. B. The owner or operator of the proposed new source must demonstrate that all other major stationary sources owned or operated by the person in the state are in compliance (or on schedule for compliance) with all applicable emissions limitations. C. The new source will not impede the attainment of reasonable further progress toward NAAQS compliance otherwise required of a state under a Part D SIP. D. The new source cannot be constructed in a "dirty air area."
D. The new source cannot be constructed in a "dirty air area." Answer (D) is correct. The Part D SIP requirements established by the 1977 amendments to the CAA departed from the path taken by Congress in the original CAA's SIP requirements. Originally, states were given significant leeway in deciding how to achieve the NAAQSs. Part D of the CAA now imposes specific restrictions on persons who desire to construct new, or modify old, major stationary sources. Under Part D, states are required to impose certain uniform restrictions. One restriction is on construction in "dirty air areas." New sources are permitted if they have the lowest achievable emission rates and if other sources under the operator's control are in compliance with applicable standards.
Dan bought a vacation home in the mountains of North Carolina. One day as he was sitting on the porch of his vacation home, Dan saw a stream of gray liquid bubbling up from an opening in his front yard. Dan immediately notified the EPA, which, after extensive examination, informed him that hazardous substances (within the meaning of CERCLA) had been previously buried deep beneath his house and a shift in the rock formation underlying his house caused a barrel to rupture, releasing its contents. Under CERCLA, Dan A. Will be liable for the actions of the previous owner B. Is released from all liability simply because he immediately notified the EPA of the release. C. Will not be liable because he did not own the land at the time when the substances were buried. D. Will not be liable, if he is able to avail himself of the so-called innocent landowner's defense.
D. Will not be liable, despite the act's broad liability, if he is able to avail himself of the so-called innocent landowner's defense. Answer (D) is correct. Liability under CERCLA is broadly applied to all owners or operators of "facilities" where releases of hazardous substances occur. Thus, all owners of land where such releases occur are subject to liability under CERCLA. However, the so-called innocent landowner's defense is available under CERCLA. For the exception to apply, the owner must have purchased the land after the placement of the hazardous substances occurred. Moreover, the owner must prove that (s)he did not know or have any reason to know that such substances were on the land. Finally, the owner must show that someone else, or a force majeure, caused the release or threat of release of the substances and that (s)he exercised reasonable care and took reasonable precautions in preventing the release of such substances. If Dan proves the foregoing, he will not be subject to CERCLA liability.