Environmental Law Test 2

Critical Habitat- Final Rule 8/19

Critical Habitat- Final Rule 8/19 Q: When FWS may designate unoccupied areas as critical habitat. A: Unoccupied areas must be essential to the conservation of the species to be critical habitat. To be essential: the Secretary must find that the occupied habitat of the species at the time of listing is inadequate to ensure the conservation of the species. It is reasonably certain the area will contribute to the conservation of the species The area contains at least one physical or biological feature essential to the conservation of the species Weyerhaeuser Co. v. FWS (to be critical habitat, an area must first be habitat)

Current Events (RCRA)

Current Events Case: Cmty. Ass'n for Restoration of the Env't, Inc. v. Spring Canyon Ranch, LLC, No. 1:19-cv-03264 (E.D. Wash. filed 11/07/19) Citizen suit Case summary: Plaintiff alleges defendant has violated and continues to violate RCRA by "contributing to the past and present handling, storage, treatment, transportation, and/or disposal of solid and hazardous waste" in a way that poses and possible risk of injury to health and the environment. Allegation: improperly storing manure waste causing it to leach into soil and groundwater. Allegation: manure improperly applied to fields in amounts that exceed the amount that the field can effectively utilize. Allegation: the improper application of manure is also causing the manure to leach into groundwater in violation of RCRA. Request for both declaratory and injunctive relief establishing that the defendant has violated RCRA and directing the defendant to come into RCRA compliance and to remedy the environmental contamination it has already caused.

Definitions ESA

Definitions Endangered species In danger of becoming extinct over all or part of its range Threatened species Likely to become endangered in the foreseeable future

ESA Enforcement

ESA Enforcement Trafficking & knowingly "taking" Criminal= < $50,000 and/or 1 yr Civil= <$25,000 per violation Affirmative defenses The act was in self-defense. Preponderance of the evidence standard Accidental killing of listed species during farming and ranching activities No criminal penalties

Effect of Definition

Effect of Definition For landowners and farmers Jurisdiction opens up more landowners to enforcement actions There is debate on how much more land would be jurisdictional Wider definition= more jurisdiction, more narrow definition= less jurisdiction Consequences?

Emission Standards for Mobile Sources

Emission Standards for Mobile Sources Emission standards for automobiles first put into place in 1968 Stronger "Tier 1" standards put into place in 1990: Requires oxygenated gasoline (designed to reduce emissions of carbon monoxide) be sold in the worst CO nonattainment areas Requires "reformulated" gasoline (designed to reduce emissions of volatile organic compounds and toxic air pollutants) be sold in the worst ozone nonattainment areas Los Angeles, San Diego, Houston, Baltimore, Philadelphia, New York, Hartford, Chicago, Milwaukee, and metropolitan Washington, D.C., Stronger "Tier 2" standards put into place in 2000: Emission reductions of 77% to 95% More than 90% reduction in the sulfur content of gasoline

End of Story?

End of Story? Several on-going court cases Some seeking to overturn the 2015 rule Some challenging EPA's 2019 repeal of the 2015 rule Likely that the Navigable Waters Protection rule itself will face litigation. Group of D attorney generals have already indicated intent Election year Science advisory board: EPA's advisors criticized the new rule as "in conflict with established science" https://bit.ly/2QaDWna

ESA

Endangered Species Act

Guidance Doc Examples

Examples Under the guidance document: 1. What waters are subject to CWA jurisdiction? 2. What waters are outside of jurisdiction? 3. What waters are on a case by case basis?

FIFRA Overview

FIFRA Overview The sale of pesticide products in the U.S. is prohibited unless that product is registered and labeled It is a violation of FIFRA to use a pesticide in a manner that is inconsistent with the label instructions. EPA registers each pesticide product for each approved use. Example: "Product X" may be registered for use on green beans to control mites, as a seed treatment for cotton, and as a treatment for structural cracks. FIFRA is carried out primarily on the state level. EPA provides grants to fund state pesticide programs EPA can retake enforcement responsibility if the state program is deemed to be inadequate

Factors for Evaluating Risk FIFRA

Factors for Evaluating Risk In deciding whether to register a pesticide, EPA will consider: Carcinogenicity Reproductive effects Immunological effects Neurological effects Impacts on groundwater Impact on wildlife and fish Toxicity; and the availability of effective alternatives.

FIFRA

Federal Insecticide, Fungicide, and Rodenticide Act of 1972 Requires pesticide registration, modified by the Food Quality Protection Act

Federal and State Responsibility

Federal and State Responsibility Divides responsibility for enforcement between the EPA and the states General divisions: EPA (federal) Standard setting Research Providing financial and technical assistance to the states States Monitoring air quality Controlling and preventing air pollution.

Guidance Memorandum

Guidance Memorandum The agencies assert jurisdiction over the following waters: " Traditional navigable waters " Wetlands adjacent to traditional navigable waters (Bayview) " Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g ., typically three months) " Wetlands that directly abut such tributaries

Guidance Memorandum, continued 2

Guidance Memorandum, continued Questionable Jurisdiction (case by case): Non-navigable tributaries that are not relatively permanent " Wetlands adjacent to non-navigable tributaries that are not relatively permanent " Wetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary

Guidance Memorandum, continued

Guidance Memorandum, continued The agencies generally will not assert jurisdiction over the following features : " Swales or erosional features (e .g., gullies, small washes characterized by low volume, infrequent, or short duration flow) " Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water

Hazardous Waste Generators

Hazardous Waste Generators Hazardous waste generation is divided into separate categories Large quantity generators >100 kg/month Small quantity generators <100 kg/month ---- Can only hold waste for 90 days before it must be disposed of Permits required: Need permit to generate hazardous waste Transporters, permit required TSD facilities, permit required No permit required: If you're a small quantity generator, no permit is required

Hazardous Waste Manifests

Hazardous Waste Manifests To track waste, EPA requires generators to prepare a Uniform Hazardous Waste Manifest Manifests must accompany waste where ever it travels This form, and its multiple copies, ties generator, all transporters, storage facilities, and disposal facilities with the waste Each individual handler must sign and mail copies of the manifest to EPA or authorized state authority

CERCLA Process

Hazardous materials are released: • The responsible party must notify the National Response Center if the release amount exceeds the regulatory limit. • State or local officials, or members of the public, who observe or suspect a release of a hazardous substance also may report. The National Response Center's responsibilities:• Notify the appropriate fed. agency responsible for the cleanup • Beginning federal enforcement actions against the parties responsible for the release. Response actions begin: • Most often involve cleanup activities, including • Containment, removal, or treatment of environmental contamination to prevent potentially harmful exposure • May also include the temporary or permanent relocation of potentially exposed individuals

Identifying Species

Identifying species for possible designation as "endangered" or "threatened" • Citizen may "petition" the Fish and Wildlife Service, or • Fish and Wildlife Service may identify species through internal studies and discussion with States, academia, and other experts in the scientific community

Import/Export (FIFRA)

Import/Export Import (into US) Must comply with standards set with the U.S. pesticide law Must be registered with the EPA Cannot be adulterated Must be labeled correctly Must have been produced in an EPA registered establishment Export (produced in US, exported to another country) Does not have to comply with FIFRA standards Must contain a label that "Not Registered for Use in the United States" Labeled in English and the language of the receiving country Must comply with all FIFRA record keeping requirements Ex: DDT, Chlordane

Incidental Take Permits

Incidental Take Permits Private, non-federal entities can apply for "incidental take" permits before they begin a project that might result in the take of an endangered or threatened species. Protects the person/company in cases of accidental harm or death of a listed species Ex: construction, logging etc. Permit may be revoked at any time Even while valid, can be granted for varying amounts of time.

Incidental Take Permits: Application

Incidental Take Permits: Application Permit applicants submit a plan to minimize and mitigate harm to the impacted species during the proposed project. Called the "Wildlife Conservation Plan" Incentives to protect listed and unlisted species, while allowing economic development that may harm ("take")a species.

Types of Liability (Cercla)

Liability under CERCLA can happen in many different ways: Strict liability A party can be held liable whether or not the party was negligent. Joint and several liability One or more of the liable parties can be held responsible for the full cost of the cleanup at a site, no matter how much they were involved in the contamination. Retroactive liability Parties are liable for the cleanup of hazardous substances released prior to the enactment of CERCLA on December 11, 1980.

Limitation on Agency Actions

Limitation on Agency Actions Another section of the ESA prohibits any federal agency from taking an action unless it insures that its action will neither jeopardize a species nor adversely affect its designated critical habitat. Jeopardize = "to engage in an action that reasonably may be expected, directly or indirectly, to reduce the reproduction, numbers, or distribution of the species" What effect might this have on agency action?

Limits of the Clean Water Act Cont.

Limits of the Clean Water Act The term "navigable waters" means the waters of the United States, including the territorial seas. 33 U.S.C.A. § 1362(7) The legislative history on the CWA from the House stated that the term should be given the "broadest possible constitutional interpretation unencumbered by agency determinations..." How broad is the interpretation of "navigable?" Courts have spent the past 40+ years trying to determine what "waters of the United States" means

Limits of the Clean Water Act

Limits of the Clean Water Act Goal: Restoration and maintenance of chemical, physical and biological integrity of Nation's waters...and it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985.

Listing Consideration Then/Now

Listing Consideration Then/Now Previously: During the listing process, economic factors cannot be considered, but must be " based solely on the best scientific and commercial data available." No balancing test between protection and economic use/benefit. Change under current admin: Remove "without reference to possible economic or other impacts of such determination" language FWS will collect/compile economic info and present it to the public, without it influencing the listing determination

Listing Criteria

Listing Criteria Species must meet one the following criteria: There is the present or threatened destruction, modification, or curtailment of its habitat or range. An over utilization for commercial, recreational, scientific, or educational purposes. The species is declining due to disease or predation. There is an inadequacy of existing regulatory mechanisms. There are other natural or manmade factors affecting its continued existence.

Listing Process

Listing Process FWS receives a petition to list a species. FWS can either create the petition themselves, or concerned citizens/organizations may submit one If the information is substantial, a status review is started. Assessment of a species' biological status and threats If warranted, the agency will publish a proposed rule within one year of the date of the petition, proposing to list the species as threatened or endangered. Notice & comment rulemaking Must meet one of the listing criteria Within another year, a final determination (a final rule) must be made on whether to list the species.

Major CAA Goals

Major CAA Goals National Ambient Air Quality Standards (NAAQSs) for certain pollutants State Implementation Plans (SIPs) Special requirements, including permitting, for larger industrial and commercial sources Emission standards for mobile sources

Medical Waste

Medical Waste RCRA used to regulate medical waste in four states. The program expired in 1991. Medical waste= Any solid material generated in the diagnosis, treatment, or immunization of human beings or animals, in related research, biologicals production, or testing However, if the medical waste is determined to be hazardous, it is still covered by RCRA.

Methods ESA

Methods Identify and "list" species that are endangered or threatened. Including critical habitat Take actions to protect the species that are listed Limitations on actions of federal agencies

More Operating Permit Information

More Operating Permit Information Emissions reports provided to permitting authorities at least semiannually Must certify compliance status annually. Notice/comment must be provided during: Permit review process for every new permit When permits are renewed or significantly revised. EPA is responsible for overseeing the implementation of permit programs and may object to a permit that fails to comply with program requirements. EPA must establish federal permit program in any area where the permitting authority does not develop and maintain an adequate program State and local governments can implement separate requirements appropriate for unique local conditions.

More Recent Timeline

More Recent Timeline March 2017- EPA/Corps announced its intention to review and rescind or revise WOTUS. February 2018- EPA/Corps finalized a rule postponing the effective date of WOTUS until 2020. October 2019- EPA/Corps withdrew 2015 rule January 2020- EPA/Corps proposed new rule Final rule

NAAQS Pollutants

NAAQS Pollutants Pollutants: Carbon monoxide Sulfur dioxide Particulate matter Solids and liquid droplets suspended in air Accumulates in respiratory systems and aggravate existing conditions like asthma Nitrogen dioxide Ozone Created when pollutants chemically react with air in the presence of sunlight. Reacts with tissue (primarily lung tissue) and can cause injury Can cause significant crop damage Lead Requirements EPA must review the scientific data upon which the standards are based, and revise the standards, if necessary, every five years.

NAAQS Standards

NAAQS Standards Two standards for each pollutant Primary standard- protect human health. Secondary standard- protect public welfare. The standards coupled with direction to the states to develop state implementation plans (SIPs) in order to achieve standards Process: For monitoring, enforcement and prevention, the nation is divided into air quality regions Currently, there are 247 air quality regions in the US A region that doesn't meet a NAAQS is called a "nonattainment area" EPA has tools/consequences to bring the nonattainment area into attainment.

NEPA

National Environmental Policy Act that acknowledges that the Federal government must consider the environmental impact of a proposed federal action. Provided the basis for EISs.

No Surprises Rule

No Surprises Rule For landowners who have applied for and received an incidental take permit, this rule provides protection if the Wildlife Conservation Plan doesn't work as anticipated. If this situation occurs, the landowner will not be required to set aside additional land or pay more in conservation money. Instead, the fed gov. pays for additional protection measures.

Operating Permit Information

Operating Permit Information Information included: Information on which pollutants are being released, How much may be released Types of steps that must be taken to reduce the pollution. Plans to measure and report the air pollution emitted. Compliance plan and certification of compliance Method: States and tribes typically issue operating permits. The term of permits is limited to no more than five years Businesses seeking permits have to pay permit fees. Fees pay for the air pollution control activities related to operating permits. Fees based on the amount of air pollutants that a source may emit.

Other Provisions

Other Provisions Incidental Take Habitat Conservation Plans No Surprises Rule Safe Harbor

Outline CWA

Outline What is Jurisdiction & why does it matter? Where are we at with the Clean Water Act? EPA's 2015 WOTUS Rule Current Events

FEDERAL FOOD, DRUG, AND COSMETIC ACT (FFDCA)

Overview Establishes tolerances for pesticides and their residues in food and feed. Foods that have residue amounts higher than allowable tolerances or where no tolerance has been specified are deemed to be adulterated and cannot be sold.

Permit Benefits

Permit Benefits Holding a permit helps shield a source from enforcement actions A source cannot be held in violation if it is complying with explicit requirements addressed in a permit

Permitting Requirements

Permitting Requirements Title V of the Clean Air Act Amendments of 1990 creates an operating permit program for larger industrial and commercial sources that release pollutants into the air. Includes both major sources and synthetic minor sources. In nonattainment areas, the permit requirements also include sources which emit as little as 50, 25, or 10 tons per year of VOCs, depending on the severity of the region's nonattainment status (serious, severe, or extreme).

Pesticide Classification

Pesticide Classifications General use Safer for humans/environment May be purchased by the public without restriction Restricted use May only be purchased and used by "certified applicators" Record keeping required by everyone who handles it.

Pesticide Registration Requirements

Pesticide Registration Requirements The registrant must prove to EPA that the pesticide will perform its intended function without unreasonable risks to people and the environment; and Taking into account economic, social, and environmental costs and benefits of the pesticide When used in accordance with commonly used practice, the pesticide will not cause unreasonable risk to the environment.

Pollution Control & Emissions

Pollution Control & Emissions Some stationary sources must install pollution control equipment and meet specific emissions limitations. Major Sources - facilities that can emit pollutants on an annual basis at a rate greater than thresholds established by CAA regulations. Example: a facility that can emit greater than 100 tons per year of any pollutant other than greenhouse gases is major Synthetic Minor Sources - facilities that would be major but have federally enforceable permit limits to restrict their emissions below major source thresholds

Process: State Implementation Plans

Process: State Implementation Plans Must be developed with public input, be formally adopted by the state, and submitted by the Governor's designee to EPA. Contain a plan to reach attainment status as soon as possible but in no more than five years. Must include inventory of all pollutants permits control measures, means, and techniques to reach standard qualifications contingency measures After review of SIPs, EPA proposes to approve or disapprove all or part of each plan. The public has an opportunity to comment on EPA's proposed action. If EPA approves all or part of a SIP, the control measures are enforceable in federal court. If a state fails to submit an approvable plan or if EPA disapproves a plan, EPA is required to develop a federal implementation plan (FIP).

Prohibition on "Taking" an Endangered Species

Prohibition on "Taking" an Endangered Species Definitions: Take - "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" Harm- "an act which actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering. Includes nesting and reproduction What does this affect?

EIS Threshold Question: "Significantly affect"

Q: Will the action significantly affect the human environment? First, a preliminary analysis (shorter, more basic than an EIS) is completed. Called an "environmental assessment" If that analysis finds that there is a significant effect, then the full EIS must be completed. If the analysis finds that there is no significant effect, a "finding of no significant impact" is completed.

RCRA Responsibilities For Hazardous Waste

RCRA Responsibilities For Hazardous Waste The "generator" is responsible for the material from cradle to grave The "generator" is the person/business who created the waste. The waste is tracked using a uniform hazardous waste manifest It is monitored by the EPA using generator ID numbers and permits Restricted from land disposal (under HSWA)

Rapanos v. United States, 547 U.S. 715 (2006)

Rapanos v. United States, 547 U.S. 715 (2006) Issue was whether the CWA applied to filled wetlands (just like in Bayview) Case started in 1989 Meant to clarify SWANCC

Rapanos v. United States, 547 U.S. 715 (2006) Cont.

Rapanos v. United States, 547 U.S. 715 (2006) Plurality: "navigable waters," under CWA, includes only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water (4) to constitute " 'navigable waters' " under the Act, a water or wetland must possess a "significant nexus" to waters that are or were navigable in fact or that could reasonably be so made (Kennedy) It is adjacent to tributaries of navigable waters and has a cumulative ecological effect on navigable waters (Dissent) (4)

Registration Specifics FIFRA

Registration Specifics Registrations are for 15 years. The pesticide is reviewed every time it comes up for renewal to make sure that it still meets the health and safety standards. Conditional registration Granted when there is substantial similarity and uses to existing products, and there is no significant risk of harm or other adverse effects EPA may suspend registrations of any registered pesticide on an emergency basis and cancel the registration for unreasonable risk to humans or the environment

Registration Specifics (continued)

Registration Specifics (continued) If registration is granted, EPA specifies: The approved uses of the pesticide; The approved conditions of use of the pesticide; and The safe methods of pesticide storage and disposal All of this information must be explained on the product label

RCRA

Resource Conservation and Recovery Act. Enacted in 1976 to give EPA "Cradle to Grave" authority on hazardous waste.

Safe Harbor Agreement

Safe Harbor Agreement Voluntary agreement between private landowner and FWS. The landowner will alter the property to benefit or even attract a listed or proposed species in exchange for assurances that the FWS will permit future "takes" above a pre-determined level. A landowner can have a "Safe Harbor" agreement, an Incidental Take Permit, or both

Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001)

Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) Issue was whether there was jurisdiction over an abandoned sand & gravel pit "Migratory Bird Rule" Can a duck land there? "[t]he term 'navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the CWA

Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) Cont.

Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) There was no "significant nexus" between isolated wetlands and navigable waters. Hydological connection between bodies of water become important "Where an administrative interpretation of a statute invokes the outer limits of Congress' power, agency must establish a clear indication that Congress intended that result." What's not clear about "waters of the United States?"

RCRA Programs

Solid waste management Hazardous waste management Underground tank management Medical waste (expired)

State Enforcement of CAA

State Enforcement of CAA CAA recognizes that states should take the lead in carrying out the Clean Air Act Why? Pollution control problems often require special understanding of local industries, geography, housing patterns, etc. States are not REQUIRED to enforce CAA provisions or create SIPS If they do not, EPA will be responsible for its enforcement. Why would a state choose to enforce/not enforce? Standards: States are not allowed to have weaker pollution controls than the national minimum criteria set by EPA. EPA must approve each SIP, and if a SIP isn't acceptable, EPA can take over CAA enforcement in that state.

FIFRA Responsibility: States

State responsibilities: State registrations under state laws Additional or new uses of federally registered products for special local needs §24(c) State-Specific Registrations Reviews and oversees emergency exemptions §18 Emergency Exemptions Primary enforcement of pesticide use laws Pesticide applicator/certification laws How states obtain authority: Meet three requirements Have state pesticide regulations that are at least at stringent as federal regulations Have adopted procedures allowing enforcement responsibilities to be carried out Keep adequate records detailing enforcement actions EPA provides grants to fund state pesticide programs EPA can retake responsibility if state program is inadequate

Tennessee Valley Authority v. Hill

Tennessee Valley Authority v. Hill Facts: The Tennessee Valley Authority wanted to build a dam in a river, where a listed endangered species (the snail darter, a small fish) had recently been discovered 100 million had already been spent on the project. Plaintiffs filed a lawsuit arguing that construction of the dam would destroy critical habitat and endanger the population of the fish. In response, TVA argued that an exception to the ESA should be made that ESA goals and economic realities should be balanced and both considered. Issue: How strict is the ESA limit on federal actions? Ruling: USSC found that building the dam would be a violation of the ESA, and that the plain language of the law didn't allow for exceptions. Eventually the dam was build (6 years later) after Congress specifically exempted its construction from the ESA

CERCLA Priority List of Hazardous Substances

The Agency for Toxic Substances and Disease Registry (ATSDR) has identified a list of rank-ordered hazardous substances, known as the CERCLA Priority List of Hazardous Substances. This list is revised and published on a 2-year basis, with a yearly informal review and revision.

The Background FIFRA

The Background Federal Insecticide, Fungicide, and Rodenticide Act "FIFRA" Establishes the general system of federal pesticide regulation First enacted in 1947, but updated/broadened in 1972, 1988, 1996, and 2012. About 18,000 pesticides regulated under FIFRA are in use Federal Food, Drug, and Cosmetic Act "FFDCA" Establishes the system to govern pesticide levels in food and feed. First enacted in 1938, updated/amended in 1954, 1958, 1970, 1996 About 5,800 pesticide products used in food productions regulated under FFDCA are in use.

The Endangered Species Act

The Endangered Species Act Passed in 1973 Goals: Prevent the extinction of plant and animal life To recover and maintain populations by removing or lessening threats to their survival Focus on preservation of the ecosystem that they live in Administered by: National Oceanic & Atmospheric Administration Handles all marine species US Fish and Wildlife Service Handles freshwater fish and all other species Species that occur in both habitats are jointly managed

The Worker Protection Standard (Agriculture Only)

The Worker Protection Standard (Agriculture Only) Regulations written based on authority granted by FIFRA Overview: Employers must provide protections against possible harm from pesticides Reduces pesticide risks to: agricultural workers pesticide handlers Applies to owners and operators who apply pesticides on agricultural lands, as well as consultants

The takeaway...(Jurisdiction)

The takeaway... If an agency, court, or law enforcement have jurisdiction over you (or your property) than they can enforce the "law" against you. If there's no jurisdiction...

Timeline: State Implementation Plans

Timeline: State Implementation Plans Initial event: EPA creates or revises a national ambient air quality standards Within two years: EPA must identify or "designate" areas as meeting (attainment areas) or not meeting (nonattainment areas), the standards. Within three years: All states must submit state implementation plans to show they have the basic air quality management program components in place to implement the standards Within 18-36 months: Nonattainment SIPs are due that outline the strategies and emissions control measures that show how the area will improve air quality and meet the NAAQS.

FFDCA Tolerance Setting

Tolerance Setting Definition of "safe" EPA has determined there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information. EPA must consider: The impact of pesticides in food, drinking water, air, and consumer products Information on dietary exposure among infants and children

Tolerance Setting: Enforcemen

Tolerance Setting: Enforcement FDA/USDA must monitor pesticide residue levels in food in interstate commerce USDA is responsible for meat and poultry FDA is responsible for all other foods Analyzes over 12,000 food samples annually to monitor compliance. FDA/USDA must also enforce tolerances through their food inspection programs

Underground Tank Management

Underground Tank Management Regulations: Cover tanks storing petroleum or listed hazardous substances Define the types of tanks permitted. Establish a tank notification system to keep track of UST status. The regulations set standards for: Groundwater monitoring Double liners Release detection, prevention and correction Spill control Overfill control (for petroleum products) Restrictions on land disposal of untreatable hazardous waste products.

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) Issue was whether the CWA applied to wetlands adjacent to navigable waters. The court held that the Corps' regulation properly extended their authority. Protection of adjacent wetlands, even if "not inundated or frequently flooded by the navigable water", was reasonable under the statutory authority. Refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction

CERCLA Requirements Part 2

WHAT HAPPENS IF THE POLLUTER CAN'T PAY TO CLEAN IT UP?

CERCLA Requirements

WHO IS RESPONSIBLE WHEN HAZARDOUS WASTE IS RELEASED?

Why? (Cercla)

1942 - '53: Hooker Chemical Company disposed of 21,000 tons of hazardous and toxic waste in a New York canal that had been drained and lined with clay. Company later changed its name to Occidental Petroleum Corporation After 1953, the canal was filled in with dirt, and Hooker/Occidental sold the land to a school board They didn't want to sell the land, but finally gave in after the board threatened them with eminent domain proceedings. Two schools were built on the property and neighborhoods grew up around them. In the next 20 years, very bad things happened to the neighborhood residents. Birth defects, sickness, cancer, death... The dumping of chemicals in "Love Canal" was discovered by the press and became the subject of national and international attention. Result: Government relocated more than 800 families and reimbursed them for their homes Congress passed CERCLA Occidental Petroleum was sued by the EPA and agreed to pay $129 million in restitution. Many residents' lawsuits were also settled

WOTUS 2020 Exclusions

WOTUS 2020 Exclusions Groundwater, including groundwater drained through subsurface drainage systems Ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools; Diffuse stormwater runoff and directional sheet flow over upland; Ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations; Prior converted cropland; Artificially irrigated areas that would revert to upland if artificial irrigation ceases; Artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters; Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel; Stormwater control features constructed or excavated in upland or in non- jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off; Groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and Waste treatment systems.

WOTUS Under the 2015 Rule

WOTUS Under the 2015 Rule All waters previously included in WOTUS/court rulings (non controversial) Tributaries: "a water that contributes flow, either directly or through another water . . . to a water... that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark." A tributary can be natural, man-altered, or man-made and includes rivers, streams, lakes, impoundments, canals, and ditches (unless excluded). Adjacent waters: those waters that are "bordering, contiguous or neighboring" a jurisdictional water (including any tributary). "Neighboring" waters include: All waters located within 100 feet of the ordinary high water mark of jurisdictional water; All waters located within the 100-year floodplain of a jurisdictional water and not more than 1,500 feet from the ordinary high water mark of such water; and All waters located within 1,500 feet of the high tide line of a jurisdictional water. Significant Nexus "water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water."

WOTUS, 2020 Version

WOTUS, 2020 Version Called "Navigable Waters Protection Rule More narrow than 2015 version Similar to Rapanos Includes the following: Territorial seas and traditional navigable waters Waterways with physical capacity to support commercial navigation Perennial and intermittent tributaries of such waters Rivers, streams, or similar naturally occurring surface waters that contribute surface water flow to territorial seas or traditional navigable waterways either directly or through another tributary, lake, pond, or adjacent wetland. Must either 1) have water flowing through it year-round or 2) if water only flows through it during certain times of the year it must not be only because of rain or snowfall. Specifically excludes all surface waters that flow only in direct response to precipitation.

WOTUS, 2020 Version (cont.)

WOTUS, 2020 Version (cont.) Certain lakes, ponds, and impoundments of jurisdictional waters Must meet one: (1) if the waterway would meet the definition of a traditional navigable water; (2) if the waterway contributes surface water flow to a territorial sea or a traditional navigable waterway; or (3) if the waterway is regularly flooded with water from a water of the United States. AKA- Any enclosed waterbody that is not itself a traditional navigable waterway must share a surface connection with a jurisdictional water. Wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). Wetlands that touch a territorial sea, traditional navigable water, tributary, lake, pond, or impoundment of a jurisdictional water. Must have a direct hydrologic surface connection with another jurisdictional water.

WOTUS: Obama Administration

WOTUS: Obama Administration Several cases went to the USSC- providing limited (and sometimes contradictory) definition. EPA decided to resolve the issue by drafting regulations defining the term. Goal: Phrase is "more precisely defined, more predictably determined, and easier for businesses and industry to understand" Timeline April 2014: Proposal was made public Oct 2014: Comment deadline for proposed rule May 2015: Final rule released August 2015: Final rule became effective October 2015: Rule implementation stayed by the 6th Circuit

WPS Information Requirements

WPS Information Requirements Pesticide safety training for workers and handlers. Access to specific information for workers and handlers, including: Pesticide applications on the establishment; Safety data sheets for pesticides applied on the establishment; and Pesticide safety information (poster) that includes emergency information. Labeling information for pesticide handlers and early-entry workers. Information exchange between agricultural employers and commercial pesticide handler employers.

WPS Mitigation Requirements

WPS Mitigation Requirements Decontamination supplies available: Routine washing- a sufficient supply of water, soap and towels Emergency- decontamination and eyewash systems if applicable. Emergency assistance by making transportation available to a medical care facility in case of a pesticide injury or poisoning, and providing information about the pesticide(s) to which the person may have been exposed.

WPS Protection Requirements:

WPS Protection Requirements: Keep workers and other people away from Areas being treated with pesticides. Pesticide application equipment during applications. Areas that are under a restricted-entry interval (REI), with a few narrow exceptions. Suspend applications if workers or people are near pesticide application equipment (in the application exclusion zone) during applications. Equipment: Protect workers who are doing permitted tasks in pesticide-treated areas during an REI, including special instructions and duties related to correct use of personal protective equipment. Provide and maintain required personal protective equipment to handlers. If a respirator is required by a pesticide label, provide the handler with a medical evaluation, fit test and respirator training. Monitor handlers using highly toxic pesticides.

What about threatened species?

What about threatened species? Previously: Typically, most of the same protections as endangered species "blanket 4(d) rule" Under new rule (8/19) For newly listed/reclassified species, will have protections only when FWS creates a species-specific rule

What is Jurisdiction?

What is Jurisdiction? Definition of Jurisdiction? Authority given to the courts, governmental agencies, or law enforcement to enforce the law. May be limited by location, the type of law to be enforced, constitutionally, etc...

Where are we at with the Clean Water Act? part 2

Where are we at with the Clean Water Act? Supreme Court Case Law: United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) Rapanos v. United States, 547 U.S. 715 (2006)

Where are we at with the Clean Water Act?

Where are we at with the Clean Water Act? Summary of Supreme Court Precedent: The scope is broader than the traditional meaning of the word "navigable" Waters with no connection to "navigable waters" are not protected (Migratory Bird Rule) Water must have a "significant nexus," a relatively permanent connection to navigable waters, or perhaps both of them

Where are we at with the Clean Water Act?

Where are we at with the Clean Water Act? The Clean Water Act - 33 U.S.C. §§ 1251 - 1387 Primary federal law governing water quality Passed in 1972 with major amendments in 1977 & 1987 Point v. Nonpoint Sources Jurisdictional limits are a major issue

Citizen Suits - Policy

Why allow citizen suits? Citizen suits may not be brought if there is a pending regulatory action (EPA is doing something that would affect the suit). Why wouldn't the suit be allowed in that circumstance? Interference Waste of judicial resources

Why does it matter? - CWA Consequences

Why does it matter? - CWA Consequences Permits Civil Primary enforcement tool EPA may issue a compliance order or bring a civil suit against persons who violate the terms of a NPDES permit. <$25,000/day Criminal For negligent or knowing violations: $50,000 per day, and/or <3 years For "knowing endangerment" (violations that knowingly place another person in imminent danger of death or serious bodily injury): <$250,000, and/or <15 years in prison Administrative Civil penalties for certain well-documented violations of the law.

Defense to Liability (Cercla)

A "defense to liability" is a reason why a certain party should not be held responsible for the contamination In CERCLA, a party cannot be held liable for contamination if the release was caused by An act of God; An act of war; An act or omission of a third party with whom the defendant has no contractual relationship, if the defendant was not negligent. Typically applies to property owners who had no involvement in the actions that led to the contamination.

EIS Threshold Question: "Federal Activity"

Activities undertaken by a federal agency directly are federal. - The Fish and Wildlife Service building a road to a fish hatchery. - Army Corps of Engineers building a dam on a river. Activities engaged in indirectly through contractors, or through grants to states, local governments, and private parties. - - Arkansas building a road with federal funds. Private projects that require a permit, regulatory decision or funding from a federal agency

Liability under CERCLA

All parties that may have had some involvement in the actions that resulted in contamination of the environment can be held liable. The purpose is to spread the costs to those who caused, the damage, in order to minimize the burden of the costs of cleanup on the general taxpayer. This is based on the legal principle that polluters should be required to pay for the environmental damage that they cause Called "polluter pays principle."

Definition of Pesticides

Broadly defined as "chemicals and other products used to kill, repel, or control pests." Includes "herbicides" and "insecticides" Also includes Substances used to control mold, mildew, algae, and other nuisance growths on equipment, in surface water, or on stored grains. Disinfectants and sterilizing agents Animal repellents Rat poison

CERCLA vs RCRA

CERCLA Focuses on abandoned hazardous waste Purpose - "remediation" Fixing environmental damages that have already occurred RCRA Current hazardous waste production Purpose - "management" Preventing environmental damages before they occur

Cercla National Priorities List

CERCLA directed the EPA to establish and maintain a National Priorities List (NPL) of the most contaminated sites in the United States which present the greatest risks to human health and the environment. The list is put together though the use of the Hazard Ranking System, which determines the importance of the contaminated site. Scores each site based on factors including: Quantity and nature of hazardous substances; The likelihood of the migration of contamination in groundwater, surface water, and air; Proximity to human populations and sensitive environments. EPA has listed over 1,600 sites on the NPL since it began. EPA has deleted over 300 of these sites once it determined that the long-term cleanup objectives had been met.

Exceptions to CERCLA

CERCLA does have specific exceptions- some in definitions, and some in other parts of the law. Exclusions from CERCLA: Releases of petroleum, including crude oil Release of "source, byproduct or special" nuclear material All other nuclear material is covered A release that would result in exposure solely within the workplace Emissions from engine exhaust of a motor vehicle, train, aircraft, vessel, or power pumping station The "normal" application of fertilizer.

Superfund Trust Fund (Cercla)

CERCLA established the Hazardous Substance Superfund Trust Fund to finance cleanup actions at contaminated sites where the responsible parties cannot pay or cannot be found . The fund was initially financed by a combination of special taxes on industry and revenues from the U.S. Treasury ----- Special taxes were on petroleum, chemical feedstocks (and imported chemical derivatives), and corporate income ----- The authority to collect taxes for the fund expired in 1995 Currently, the fund is primarily financed by the Treasury ----- Money from general taxes ----- Subject to appropriation by Congress.

Environmental Laws that Allow Citizen Suits

Clean Water Act Safe Drinking Water Act Clean Air Act 1970 Resource Conservation and Recovery Act Comprehensive Environmental Response, Compensation, and Liability Act Surface Mining Control and Reclamation Act of 1977 Endangered Species Act of 1973 Emergency Planning and Community Right To Know Act of 1986- SARA Title III

Background (Cercla)

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Commonly known as "Superfund" Enacted by Congress in 1980 Purpose: Established prohibitions and requirements concerning closed and abandoned hazardous waste sites; Provided for liability of persons responsible for releases of hazardous waste at these sites; and Established a trust fund to provide for cleanup when no responsible party could be identified.

How it relates to Agriculture (RCRA)

Consistently, judges have found that RCRA does not apply to agricultural waste (i.e., manure) Why? "Solid waste" is "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from . . . agricultural operations."

Exclusions to NEPA

Decisions under Clean Air Act, many Clean Water Act and decisions by the secretary of homeland security are exempted from NEPA requirements. Ex: On a US/Mexico border fence project, the Secretary of Homeland Security decided that an EIS wasn't needed.

What are adverse environmental impacts? (NEPA)

Direct impacts: Those that are caused by the federal action and occur at the same time and in the same place as the action, Ex: Filling in a wetland to build a roadway. Indirect impacts: Impacts that are caused by the federal action, but are further removed in both time and distance from the action Ex: Altered changes in traffic patterns as the result of building a new roadway. Cumulative impacts: Impacts on the environment which results when the incremental impact of the federal action is added to the impact all other past, present, and reasonably foreseeable future actions.

Methods of Disposal

Disposal methods Landfill Incineration Recycling What are some advantages? What are some disadvantages? Are there any other options?

Procedures for EIS (NEPA)

Draft published in the Federal Register Other agency and public comments received Final draft published in the Federal Register

Money, Money, Money (Cercla)

EPA may require the potentially responsible parties to directly perform or pay for cleanup actions themselves. Alternatively, EPA may clean a contaminated site with money from the Superfund, and later recover those funds from the responsible parties If the responsible parties cannot pay or cannot be found, appropriated Superfund monies may be used to pay a share of cleanup costs at a site, under a costsharing agreement with the state in which the site is located.

Settlement Funds (Cercla)

If a responsible party wants to resolve its liability voluntarily, EPA may enter into a settlement agreement. ----- Typically an agreement that EPA will drop the case if the company pays a fine. When parties enter into the agreements, EPA puts those funds into the Superfund Trust Fund. ----- The money is available for use, and is not subject to appropriations. EPA has received nearly $4 billion in private settlement funds

What Happens If Something Changes? (NEPA)

If the proposed action is "substantially changed" or there are "significant new circumstances" to the project, a supplemental EIS must be prepared.

Citizen Suits Cont.

In order to bring a citizen suit, a person must have standing Elements of standing Must have suffered an injury Must be a cause/effect relationship between the injury and the conduct complained of Must be fixable by the courts If a plaintiff wins the citizen suit, s/he can recover attorney fees and court costs, in addition to damages. Before bringing suit, plaintiff must provide notice to: EPA State Alleged violator

Proposed Regulations Overhauling NEPA (1/2020)

Major changes- Specifically exclude from NEPA review: Projects that were only minimally funded by the federal government Proposal requests input on definition Projects that the agency has a non-discretionary duty to carry out and lacks the authority to consider the environmental effects of during the rulemaking process Ex: where Congress has specifically ordered an agency to complete a certain action Projects where compliance with the NEPA process would clearly conflict with the requirements of another statute. Ex: are there other statutory process that provide the functional equivalent of the NEPA process? Major changes, cont: Limit the types of environmental effects considered during NEPA process. Only those which are "reasonably foreseeable and have a reasonably close relationship to the proposed action or the alternatives" • Previously direct, indirect & cumulative Page limits: 75 pages for an EA 150 pages for an EIS 300 for an EIS that is of unusual complexity. Time limit 1 year for EA 2 year for EIS (previous from 2010 to 2017: average NEPA process 4.5 years to complete, average EIS close to 600 pages) Comments accepted until March 10

EIS Threshold Question: "Major Activity"

Must look at project as a whole Can't divide it into parts- i.e. the road is one project, the building at the end of the road is a separate project --General rule: The larger the project (resources involved and scope of impact), the more likely it will be considered major.

Solid Waste program

Our per capita waste generation is over double that of any other country Current methods of managing and disposing are not expected to be adequate for anticipated future volumes Throw-away economy. Things are built to become obsolete Packaging amounts to half of all household waste We generate about 4-5 pounds of solid waste a day

Responsible Parties (Cercla

Parties who are potentially responsible for costs of response actions, natural resource damages, and public health assessments associated with the release or threatened release of a hazardous substance: Any person who currently owns or operates a facility or vessel from which a hazardous substance was released; Why? Any person who at the time of disposal of a hazardous substance owned or operated the facility at which such disposal occurred; Why? Any person who arranged for the disposal or treatment of a hazardous substance and any person who arranged for the transport of a hazardous substance for disposal or treatment; and Why? Any person who accepts or accepted a hazardous substance for transport to a disposal or treatment facility, incineration vessel, or site selected by such person. Why?

How RCRA Works

RCRA was passed by Congress The law itself After its passage, EPA created the basic regulations that implement the statute. Filling in the gaps- creating the specific programs to fulfill the intent of the law For this and many other environmental programs, EPA allows states to operate their own programs, as long as they are at least equal to and consistent with the federal regulations that EPA creates. So, after creating the basic regulations, EPA focuses on authorizing states to implement the RCRA hazardous waste program. As of today, 48 states, one territory, and the District of Columbia are authorized to operate

Types of Actions Cercla

Removal actions: Short-term response actions Generally used to address localized risks Ex: Abandoned drums containing hazardous substances Ex: Contaminated surface soils posing severe risks to human health or the environment. Remedial actions. Long-term response actions. Used to permanently and significantly reduce the risks associated with releases or threats of releases of hazardous substances Generally, these are larger and more expensive actions. May include such measures as preventing the migration of pollutants with containment, or removing and/or treating and/or neutralizing toxic substances.

The Background RCRA

Resource Conservation Recovery Act (RCRA) Enacted by Congress in 1976 Purpose: Protect human health and the natural environment from the potential hazards of waste disposal. Reduce the amount of waste generated Ensure the management of waste in an environmentally sound manner.

Cercla Info

Some sites have lower risks, so they're not placed on the National Priorities List, but cleanup is wanted to encourage economic development of the property. Properties typically abandoned Contamination is preventing redevelopment. Initially used Superfund appropriations for grants/loans aiding communities in financing cleanup actions. Problem b/c Superfund has specific requirements for how it can be used. Currently, Congress has set aside separate funding for brownfields cleanup assistance within the Superfund account.

Contents of an EIS (NEPA)

Statement of environmental impacts Unavoidable adverse environmental impacts Direct, indirect and cumulative Explanation of all "reasonable" alternatives An alternative of not doing anything must be considered Must include discussion of why those alternatives are not preferable Relationship between the short-term uses of the environment and enhancement of long-range productivity Any irreversible commitments of resources

Background of NEPA

The National Environmental Policy Act (NEPA) was enacted by Congress in 1969. It was the first attempt to address the environmental impact of the actions of federal agencies. When would this apply? The constitutional basis of NEPA is the federal spending power. Different than later federal environmental law, which claims constitutional authority in the commerce clause.

What happens if you disagree? (NEPA)

When a third party disagrees as to whether the threshold requirements were met, they can appeal the decision. a.k.a.- more time, money, legal fees! No appeal to a court system Instead, it's appealed within the agency/administrative system

Current Ruling of Cow Palace

Why is this important? Animal waste found to be a solid waste under RCRA In several previous cases, it was considered a "beneficial by-product" Potential consequences of decision: Environmental groups, relying on this decision, may bring a RCRA citizen suit against a dairy or livestock operation Prevailing plaintiff may recover attorneys' fees RCRA requires violators to not only stop polluting, but also to clean up any damage caused Ultimately One hand: District court decision, limited precedential value. Other hand: Always easier to obtain a second ruling!

When is an EIS required? ("Threshold questions") (NEPA Slides0

Will the action significantly affect the human environment? Is the activity major? Is the activity federal?

Certified Applicators

"Certified Applicators" All applicators of restricted use pesticides must be certified. Basic categories of certification Private Cannot apply pesticides for hire Generally restricted to property that they own or lease Commercial. Commercial applicators may apply pesticides for hire. The person who physically applies the pesticide need not be certified; however, that person must be working under the supervision of a certified applicator. Applicator certification requirements are managed by the states under delegation from EPA. Most are operated by state departments of agriculture. In Arkansas, responsibility is given to the Plant Board.

"Cradle to Grave"

"Cradle to Grave" EPA regulations address: Generation Transportation Treatment* Storage* Disposal* Lumped together and called "TSD"

FFDCA Tolerance

"Tolerance" After a pesticide is registered (under FIFRA), an applicant can petition EPA to create a "tolerance" for the pesticide. A tolerance is a maximum amount of pesticide that may be used on a specific crop A tolerance may only be established if EPA determines it is safe. FFDCA requires that pesticides used on food-related crops have an established tolerance

"Waters of the United States" Rule

"Waters of the United States" Rule Clean Water Act language: "it is the national goal that the discharge of pollutants into the navigable waters be eliminated" 33 U.S.C.A. § 1251 "The term "navigable waters" means the waters of the United States, including the territorial seas." 33 U.S.C.A. § 1362(7)

Citizen Suits (Cercla)

-A citizen suit is a lawsuit brought by a private citizen to enforce a statute. When can a citizen suit be brought? Against a citizen, corporation, or government body for engaging in conduct prohibited by the statute. Example: A citizen can sue a corporation under the Clean Water Act (CWA) for illegally polluting a waterway. Against a government body for failing to perform a duty. Example: A private citizen could sue the EPA for failing to draft regulations that RCRA required it write.

Penalties for FIFRA Violations: Criminal Penalties

-Misdemeanor Private Applicators: up to $1000 and/or 30 days in prison Commercial Applicators: up to $25,000 and/or up to 1 year in prison Producers: up to $50,000 and/or up to 1 year in prison

Purpose and Administration (NEPA)

-When is action required? When a major federal action may significantly affect the quality of the human environmental -What is required? NEPA requires agencies to prepare an Environmental Impact Statement (EIS) prior to agency action

What is Hazardous Waste?

A subset of solid waste Often generated by industrial processes Must be hazardous Ignitability Corrosivity Reactivity Toxicity OR must be a listed chemical (e.g., asbestos) What is "Hazardous Waste"? Examples: Used solvents Battery acid Chemical wastes Pharmaceutical wastes Exclusions: Sewage Nuclear materials Waste from mining Agricultural waste Household waste

After the Listing

After the Listing After a creature/plant has been listed, it is given the following protections: No one may import/export the species to/from the United States No one may "take" any such species No one may "possess, sell, deliver, carry, transport, or ship" any species taken in violation of the ESA No one may "sell or offer for sale" any such species

Aftermath of SWANCC and Rapanos

Aftermath of SWANCC and Rapanos Split in the Circuits about jurisdiction under the Clean Water Act EPA and Corps forced to look at jurisdiction after Rapanos spurred them to issue a guidance memorandum

Arkansas Certified Applicators

Arkansas Certified Applicators Both "users" and "applicators" of restricted use pesticides are trained and licensed by the Plant Board Commercial applicators must also pass a test Approximate numbers (yearly): 6,000 Private Applicator Licenses Total of about 19,400 active licenses 1000 Commercial Applicator Licenses 600 Non-Commercial Applicator Licenses 400 Commercial Firm Licenses (ground and air) 200 Custom Applicator Licenses

Arkansas Example ESA

Arkansas Example The Neosho mucket and rabbitsfoot (mussels) were listed under the ESA on 11/13/13 Proposed critical habitat included approximately 2,000 river miles in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee. Activities that may affect critical habitat include, but are not limited to, the following: Coal and gravel mining Natural gas and oil exploration activities Timber harvest Agricultural activities (row crops and livestock) Construction and maintenance of roadways Nonpoint source pollution Loss of river bank buffers Gas, water, electrical power-line, and sewer easements and/or pipelines Water diversion and/or withdrawal from streams and springs Off-road vehicle use

CAA Background

Background Federal legislation addressing air pollution can be traced back to the 1950s, Air Pollution Control Act of 1955 Clean Air Act of 1963 Air Quality Act of 1967 Clean Air Act of 1970 1990 Clean Air Act Amendments The Clean Act (CAA) and its amendments form the basis of federal regulation of air quality today.

Citizen Suits - Current Events

Backlog of unfunded projects: 2016: 12 2019: 34 Funding Proposed 30% cut in recent president's budget Along same lines as previous budgets/Congress overrode request Rescinded proposed regulation Bonding of companies

By the Numbers

By the Numbers Major sources: Entire US: 14,795 sources (as of 3/10) Arkansas: 207 sources (as of FY 2009) Synthetic minor/minor sources: Entire US: 145,236 sources (as of 3/10) Arkansas: 930 sources (as of FY 2009)

CAA Current Events

CAA Current Events Current administration withdrew the CO2 standards of previous administration, freezing standard at 2020 level. CA threatened to use its 2013 CAA preemption waiver to use market forces to increase fuel economy Waiver allowed CA to set its own air quality standards and thus fuel economy standards Some automakers sided with CA, others with Trump in determining standards to follow. On Sept. 19, 2019, EPA and U.S. Dep't of Transportation issued final One National Program Rule Goal: Provide nationwide uniform fuel economy and greenhouse gas emission standards for cars and trucks Federal law preempts state tailpipe greenhouse gas emissions standards and zero emissions vehicle mandates Specifically withdraws CAA preemption waiver issued to California by EPA in 2013 relating to California's GHG and ZEV programs One National Program Rule has been challenged in court Uncertain whether federal government has authority to withdraw 2013 waiver Cases are still pending

CAA: Greenhouse Gases

CAA: Greenhouse Gases In December, 2009, EPA Administrator Lisa Jackson made two findings under §202(a) of the CAA Six greenhouse gases in the atmosphere - CO2, CH4, N2O, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride - may reasonably be anticipated to endanger both public health and public welfare; and that GHG emissions from mobile sources covered under CAA §202(a) contribute to the total greenhouse gas air pollution, and thus to the problem of climate change. Findings were prerequisite for establishing GHG regs from mobile sources under CAA §202 The resulting sets CO2 standards that apply to a manufacturer's fleet of vehicles Will increase fuel economy to the equivalent of 54.5 mpg for cars and light- duty trucks by Model Year 2025 Emission standard is based on the footprints of the vehicles in its fleet and the number of vehicles produced by the manufacturer at each footprint.

Penalties for FIFRA Violations: Civil Penalties

Civil Penalties Private Applicators: 1st time, warning; other offenses, up to $1000 Most applicators and dealer managers: up to $5,000 per offense Size of operation, impact and gravity of violation all considered in deciding the penalty amount

CWA

Civil Works Adminstration: emergency work relief program, put more than four million people to work during the winter of 1933-34

CAA

Clean Air Act

Clean Air Act Overview

Clean Air Act Overview Requires EPA to develop and enforce regulations to protect the public from airborne contaminants known to be hazardous to human health. Regulations addressing both stationary (industrial) pollution sources and mobile sources. Permitting program for stationary sources For mobile sources, it includes gasoline reformulation requirements and standards to control emissions from gasoline Air quality standards

CERCLA

Comprehensive Environmental Response, Compensation, and Liability Act

Consequences for Violations

Consequences for Violations Civil penalties Commercial applicators, wholesalers, dealers, and retailers Up to $5,000 for each offense. Private applicators Warning for the first offense, Fine up to $1000 for each subsequent violation. Federal/criminal penalties A private applicator: $1000 and/or 30 days A commercial applicator: $25,000 and/or up to one year A manufacturer or producer: $50,000 and/or up to one year

Consequences: Citizen Suits under the CAA

Consequences: Citizen Suits under the CAA May be brought if against someone who is alleged to have repeatedly violated, or is in violation of an emission standard or limitation, Potential penalties Injunction Costs of litigation (including attorney and expert witness fees) Civil penalties The civil penalties are typically given to the US Treasury, but may instead be "used in beneficial mitigation projects which are consistent with this chapter and enhance the public health or the environment." Maximum amount of $100,000.

Consequences: Gov. Enforcement Authority

Consequences: Gov. Enforcement Authority Enforced primarily by states or local governmentsthey issue most permits, monitor compliance, and conduct the majority of inspections. EPA has authority to review state actions. May act independently or may file its own enforcement action in cases where it believes that a state's response was inadequate. Penalties: Civil and criminal liabilities <15 years for knowingly endangering the public On-the-spot citations of up to $5,000 Penalty orders of up to $200,000 Compliance orders Compliance schedules

Cow Palace

Cow Palace Background: Four large dairy operations in eastern Washington High levels of nitrates found in ground water surrounding the area. Plaintiff brought a citizen suit against defendant/dairy Argued, in part, that dairy manure was "discarded" when (1) "overapplied" to fields as fertilizer, and (2) leaked from lagoons Community Association for the Restoration of the Environment (CARE) and Center for Food Safety, Inc., v. Cow Palace, LLC

Cow Palace Results

Cow Palace Results In a preliminary motion, the judge ruled against the dairy After the ruling, the case was settled Settlement terms: Significantly limited application of manure Use double liners in storage lagoons/concrete pads surrounding lagoons Provide clean drinking water to area residents until the contamination is eradicated

Critical Habitat

Critical Habitat When listed, FWS will designate the creature or plant's "critical habitat" Geographic areas occupied by the species at the time of listing Areas outside that geographic area if the Secretary determines that such additional areas are essential for the conservation of the species. Includes: Space for individual and population growth and for normal behavior; Cover or shelter; Food, water, air, light, minerals, or other nutritional or physiological requirements; Sites for breeding and rearing offspring; and Habitats that are protected from disturbances or are representative of the historic geographical and ecological distributions of a species.

Critical Habitat & Landowners

Critical Habitat & Landowners A designation of critical habitat on federally-owned or controlled land means that federal agencies must consult with FWS before undertaking action on that land. What does that mean for privately owned land? FWS must be consulted before actions that have a "federal nexus" are begun. In other words, if you are engaged in an action that requires a federal approval, permit, or funding: federal action agencies must complete a biological assessment. Examples: A CWA permit to dam the stream EQIP funding for conservation actions Young farmer loans to purchase the property

Critical Habitat, continued

Critical Habitat, continued Determination is based on both scientific & economic data May exclude essential areas if they determine that economic or other costs exceed the benefit. Designation To extent prudent & determinable at the time of the listing A very controversial aspect of the ESA May include both public and private lands