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
