AEB4123 Exam 2

Intent of RCRA

"Cradle to Grave" management of hazardous wastes, solid wastes and regulation of underground storage tanks

how to address phase 1

"No contamination found in samples taken"

FL RCRA

"Resource Recovery and Management" -mirrors RCRA -DEP admin

problem with CERCLA security interest

"capacity to influence" is vague circuit courts would rule different things

all appropriate inquiry establishes

"due diligence"

Nondiscretionary

"shall"

Endangered Species protection: Administration (2)

-US FWS -National Marine Fisheries Service

CERCLA statutory defenses

-act of God -unanticipated natural disaster that could not have been prevented or avoided by car or foresight -act of war -act of 'non-contractual' third party --defendant should take precautions of third partiers

Export of hazardous waste prohibited unless

-administration notified -receiving country consent -us and receiving country agree

Env audit can locate

-asbestos -abandoned dumps -contaminated waste-water discharge -underground storage tanks

phase 2 Consists of

-background info of the site from phase 1 -collection and analysis of air, soil and water samples

env audits are conducted when real estate assets... (6)

-bought or sold -refinance homes -collateral is reassessed -bank foreclosure -merger or acquisition of company -transfer or change in ownership of real estate

Disposal of pesticides and pesticide containers into nations waters is in violation of (4)

-clean water act -safe drinking water act -Florida water regulations -common law

Endangered Species protection: Impact (4)

-debate between env and producer communities -excessively broad -US competitiveness in global ag -long term funding to develop alternative pest control strategies and education for their implementation +Citizen's suit provision raises unknowns

Transaction screen questioning designed to...

-disclose pest history -determine if property complies with regulations

RCRA Citizen suit

-district court -past or present handling- present danger to health or env -nondiscretionary

Love Canal

-end of Carter (D) and beginning of Reagan (R) admin -chem comp dumped wasted and sold it to school district without telling them about contamination -built school on toxic waste site --people & businesses came to area -black goo comes out of ground and people get cancer --govt didnt do anything so they protested -congress passes CERCLA bc Reagan isnt big on env protection (thrown together) *left it up to courts to decide laws

Hazardous waste subject to RCRA (5 entities)

-generation -transport -treatment -storage -disposal

Parties responsible for waste

-generators -transporters -"owners or operators" --if past owner cant pay you're sol

phase 1 special attention

-groundwater contamination -surface water contamination -wellheads (uncapped) --storage or chemicals near wells, strong odors near wells

SDWA implemented by (2 methods)

-monitoring public water systems -guarding against groundwater contamination

Phase 1: Investigation State

-review of docs related to history of property -visual site inspection -map physical property *reveals history of pesticide use

liability for response costs established when

-site is a facility -a release or threatened release -a release or threatened release has caused US to incur response costs -defendant one of parties designated as liable for costs

What constitutes all appropriate inquiry?

-special knowledge or experience -imbalance between purchase prince and value of property -common info about property -obviousness of presence of contamination -ability to detect appropriate inspection

Phase 1 docs include

-title transfers for past 50 years -site plans and maps -interviews with old owners, neighbors & tenants -pollution evidence (ex. dumped pesticide containers) -public records

container is empty if (3)

-tripled rinsed -cleaned by another scientifically approved method -inner liner removed

Two tests for involvement

1. actual management 2. capacity to influence

3 categories of env audit

1. transaction screen 2. phase 1: Investigation phase 3. sampling phase 2 or 3: env site assessment

Innocent landowner defense

@ time of acquisition landowner must -no reason to know of property contamination -make "all appropriate inquiries" into previous ownership

RCRA regulates underground storage tanks of

Chemical and petroleum products

CERCLA

Comprehensive Environmental Response Compensation and Liability Act

State programs under RCRA

EPA authorized

CERCLA key provisions: EPA can act whenever...

EPA can act whenever -haz substance release or THREAT of pollutant release to env -release of threat of release presents danger to health or welfare

small quantity generators of haz waste/ farm and ranch tanks/ septic tanks are ______ to RCRA

EXCEPTIONS!

Endangered Species protection: Enforcement (3)

FIFRA: Misbranding FIFRA: UIWL ESA's unlawful taking provision

FIFRA basis for regulatory framework

Federal Insecticide fungicide and rodenticide act -pesticide use -labeling

US v Fleet Factors Corp

Fleet did not foreclose but hired a liquidator. carry out hiring, restricting shipping, pricing -fleet found liabls as am "owner/ operator" by participating to a degree indicating capacity to influence

"empty" is/is not subect to disposal instructions within the labeling of the product

IS

NPDES

National Pollutant Discharge Elimination System

FL RCRA Tank regs

New- strictest standards Old- brought into compliance "retrofitting" above ground- less restricted

US v Maryland Bank and Trust Co

Ownership through foreclosure -kid lets company dump on property -after foreclosure, bank takes care of plot -Ag bankers division- scared bc they don't know what other props are conataminated

US v Mirabile

Paint store cited for contamination went bankrupt and had no money to gain in suing defendant joined two banks -the banks lent to previous owner who contributed to contamination -involvement: sales strategy & employment benefits -American: not liable- trying to protect money they lent -Mellon: liable- loan officer within compant

step 3 of env audit

Phase 2!

Exemptions to FIFRA

Public health emergencies -an emergency condition requires -pesticide not available or economically or environmentally feasible -significant risk to human health

Resource Conservation and Recovery Act

RCRA October 21, 1976

FL authorized to admin all aspects of

RCRA's "Base Program" before 1986

CERCLA aka

Superfund

SARA

Superfund amendments and re authorization act

Definition of hazardous waste

a solid waste or combo of solid wastes which bc of its quantity, concentration or physical, chemical, or infectious characteristics may a) cause to increase in mortality, serious illness b) post a substantial present or potential hazard to human health or the env when improperly handled

Envi audits can write that the person is responsible for contamination even

after signing

Waters defined

all waters subject to tidal movements, reaching between all states or used in interstate or foreign commerce, discharges into wetlands

Wickard V Filborn

allows feds to overrule state states deal w non-point feds deal w point source

NPDES permits

amount and concentration of pollutants the holder can discharge

FL SDWA intent

assure availability of safe drinking water (mirrors fed laws)

Denver vs Adolph

case associated with CERCLA

CERCLA intent

cleanup inactive hazrdous waste sites that threaten human health or the env

phase 1 does NOT garuntee

contamination free property

EPA has veto power over

corps

ESA does/does not have a private right of action citizen suit

does not

solid waste excludes

domestic sewage, irrigation return flow, material defined by (atomic energy act and NPDES)

phase 1 indicates that the lender/buyer exercised

due diligence to discover contamination

pesticide containers, residues and inner liners are subject to hazardous waste unless

empty

FL SDWA overseen by

overseen by DEP -1996 amendment addressed requirements for states *EPA steps in after 30 days

site assessment doc is a combo of

phase 1 and 2

if trans screen indicates possible haz waste then

phase 1 investigation

if contamination in phase 1 is suspected,....

phase 2!

NPDES permits needed for

point source and NOT needed for non-point source

Transaction screen

presale or preloan screen administered by officer, attorney or consultant disclose history of the property

CERCLA purpose

prompt cleanup of haz waste sites and impose cost of cleanup for responsible party *someone will cleanup but not the taxpayer*

intent of SDWA (federal safe drinking water act)

protect drinking water systems by establishing max contaminant levels (MCS) for drinking water

"Catalyst behind the law" RCRA

public concern about the problems related to disposal of hazardous waste

RCRA state authority

requirements must be at least as stringent as fed to get $

CERCLA Liability is imposed (3)

retroactive strict joint and severally (1 responsible for fault of many)

Ag byproducts are

solid waste!

most industrial and commercial byproducts qualify as

solid waste!

'non-contractual' third party

someone other than an employee or special agent of the defendant -no contractual relationship directly or indirectly *problem- any engagement you have in contractual

commercial generators under RCRA are subject to

special regulations

RCRA state inventory

state must submit an inventory describing hazardous waste sites

EPA def of env audit

systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting environmental regs

Dedham Water Co V Cumberland Farms Dairy

threat that water could be contaminated from dairy farm *threat of release*

problems with 3rd party defense

usually worthless unless you argue contractional relationship

Crucial part of phase 1

visual inspection AKA walk about

Transaction screen could be as simple as

a questionnaire

strict liabilit

not absolute

CERCLA Short term removal

not on National Priorities list (NPL) -prioritized

CERCLA long term remedial

on NPL to permanently solve and enforcement against solvent PRP (potentially responsible party)

Dredge and fill permits issued by

US Army corps of engineers

Laws that control Feral cats

endangered species act migratory bird act

Solid waste includes

garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material from industrial, commercial, mining and ag operation, and from community activities *doesn't have to be physically solid)

Objective of env audit

gather info on past and present business practices -full compliance with env regulations

retroactive

getting nailed for something you did a while ago be a new law was passed -draconian

most registered pesticides, containers and residues come from within the

hazardous waste category

Human Waste!

heavy metals when they build up to a reportable quantity

Foundation of env Audit

history of chemical use on and chemical abuse of the facility

Waste excluded from RCRA definition

household, crop or animal, flyash, slagwastes, domestic sewage

Joint and severally

if one person gets caught in doing bad stuff, that person is in charge of cleaning up the whole thing "one may be responsible for the fault of many"

CERCLA security interest exemption

individual with any investment in the facility is exempt from liability as an owner or operator is person does not participate in management

CERCLA Environmental Audit

institutions are in a position to investigate and discover potential problems CERCLA will not absolve from responsibility for judgement mistakes

Clean Water Act: Intent

maintaining and restoring the quality of waters of the US

define above ground

no more than 10% volume burried -includes piping