Chapter 25: Environmental Law

Wetlands EPA definition

"those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support . . . vegetation typically adapted for life in saturated soil conditions."

Civil Penalties for CWA

$10,000 to $25,000

Federal Water Pollution Control Act

1) 1948, National 2) allowed the Public Health Service, to prepare programs for eliminating or reducing the pollution of interstate waters and tributaries and improving the sanitary conditions of surface and underground waters. proved to be inedaquate in its regulatory system and enforcement powers

Four primary element CERCLA

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

Clean Water Act established the following goals

1. Make waters safe for swimming, 2. Protect fish and wildlife, and 3. eliminate the discharge of pollutants into the water

Elements of NPDES system under CWA

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

An EIS must analyze the following

1. The impact that the action will have on the environment 2. Any adverse effects on the environment and alternative actions that might be taken 3. Any irreversible effects the action might generate

The following persons may be held responsible for cleaning up the site

1. person who generated the wastes disposed of at the site 2. person who transported the wastes to the site 3. person who owned or operated the site at the time of the disposal 4. the current owner or operator of the site

pesticides and herbicides must be

1. registered before they can be sold, 2. certified and used only for approved applications, and 3. used in limited quantities when applied to food crops

Nuisance

A common law doctrine under which persons may be held liable for using their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property

Controlling Climate Change

A federal district in Oregon allowed an unprecedented lawsuit to go forward for government doing too little to control climate change.

Environmental Impact Statements

A formal analysis required for any major federal action that will significantly affect the quality of the environment to determine the action's impact and explore alternatives.

Private Nuisance

A nuisance that affects only a single individual or a very limited number of individuals sometimes to obtain relief from pollution under the nuisance doctrine, a property owner may have to identify a distinct harm separate from that affecting the general public.

Potentially Responsible Party (PRP)

A party liable for the costs of cleaning up a hazardous waste-disposal site under the Comprehensive Environmental Response, Compensation, and Liability Act.

innocent landowner defense

A possible defense to Superfund liability; used when a party purchases a contaminated site without knowledge of the problem, despite having conducted the required site investigation before purchase.

Negligence and Strict Liability

An injured party can sue a business or person who failed to use reasonable care toward a party whose injury was foreseeable and/or caused by the lack of reasonable care.

Wetlands

Areas of land designated by government agencies as protected areas that support wildlife and that therefore cannot be filled in or dredged by private parties. prohibits filling or dredging unless a permit is obtained from the Army Corps of Engineers

Standards for Equipment

Best available control technology (BACT) Existing sources subject to timetables for BACT and must install Best practical control technology (BPCT)

Penalties for violating provision or permits

Civil penalty up to $50,000 Criminal $50,000 fine, imprisonment less than a year may grant injunction to prevent continuing violation

The Resource Conservation and Recovery Act (RCRA)

Congress's response to growing concerns about the effects of hazardous waste materials on the environment

Violations of the Clean Air Act

EPA can assess Civil penalties up to $25,000/day. Intentional violations may involve criminal penalties. To penalize those who find it more cost-effective to violate the act than to comply with it, the EPA is authorized to impose a penalty equal to the violator's economic benefits from noncompliance

Stationary Sources

EPA to establish air-quality standards primary responsibility to implement rests with state and local governments

Joint and Several Liability of PRPs

In other words, a PRP who generated only a fraction of the hazardous waste disposed of at a site may nevertheless be liable for all of the clean-up costs.

Maximum Achievable Control Technology

Instead of establishing specific emissions standards for each hazardous air pollutant, the Clean Air Act requires major new sources to use pollution-control equipment that represents maximum achievable control technology, or MACT, to reduce emissions.

City, county, and other local governments

Local zoning laws to inhibit or regulate the growth of cities and suburbs May impose rules regulating methods of waste removal, at the appearance of buildings, the maximum noise level, and other aspects of the local environment

Exxon Valdez

Oil tanker that crashed in March 1989, considered largest U. S. oil spill, emptied 35,000 tons of oil into Prince William Sound

Environmental Regulatory Agencies

Primary federal agency is the EPA. All federal agencies must take the environmental impact into account when making significant decisions

State Requirements

State Laws to protect the environment ex: laws restricting a business's discharge of chemicals into the air or water. Regulate disposal or recylcling of other wastes Restrict Emissions

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Superfund regulates the clean up of disposal sites in which hazardous waste is leaking into the environment

Strict Liability of PRPs

Superfund imposes strict liability that cannot be avoided through transfer of ownership

Authority to Regulate Greenhouse Gases (Carbon Dioxide)

The courts determined that the Clean Air Act requires the EPA to regulate any air pollutants that might "endanger public health or welfare" so EPA had to determine is CO2 was a pollutant that endangered public health. did conclude they are a public danger

Common Law Actions

Those responsible for operations that created dirt, smoke, noxious odors, noise, or toxic substances were sometimes help liable under nuisance or negligence

Toxic Torts

a civil wrong arising from exposure to a toxic substance, such as asbestos, radiation, or hazardous waste

An action qualifies as "major" if it involves

a substantial commitment of resources (monetary or otherwise)

Hazardous Air Pollutants

air pollutants likely to cause death or a serious irreversible or incapacitating condition Clean Air Act focuses on controlling those requires EPA to list all HAPS on prioritized schedule ex: asbestos, benzene, beryllium, cadmium, mercury, vinyl chloride emitted from stationary by business activities ex: smelting, dry cleaning, house painting, commercial baking

Oil Pollution Act

any oil facility, oil shipper, vessel owner, or vessel operator that discharges oil into navigable waters or onto an adjoining shore may be liable for clean-up costs and damages

National Pollutant Discharge Elimination System (NPDES)

any point source emitting pollutants into water must have a permit pollution not from point sources is not subject to much regulation

Penalty of violating RCRA

based on seriousness, probability of harm, extent to which violation deviates from RCRA requirements Civil penalty: 25k criminal: up to 50k for each day of violation imprisonment up to 2 years or both

Strict Liability for Environmental Law

businesses that engage in ultrahazardous activities that are strictly liable for any injuries the activities cause. injured party does not have to prove that the business failed to exercise reasonable care

NPDES permits

can be issued by EPA, authorized state agencies, and Indian tribes, only if discharge will not violate water-quality standards

EPA Actions

can cancel or suspend registration of substances that it has identified as harmful and can inspect the factories where the chemicals are made

operators of public water systems must

come as close as possible to meeting the EPA's standards by using the best available technology that is economically and technologically feasible

Minimizing liability under superfund

conduct environmental compliance audits of its own operations regularly. That is, the business can investigate its own operations and property to determine whether any environmental hazards exist.

Amendments to the RCRA

decrease the use of land containment in the disposal of hazardous waste and require smaller generators of hazardous waste to comply with the act

In addition, under EPA guidelines, the EPA will waive all fines if a small company corrects environmental violations within 180 days after being notified of the violations (or 360 days if pollution-prevention techniques are involved).

does not apply to criminal or significant threats

Courts have often denied injunctive relief on the ground that the hardships that would be imposed on the polluter and on the community are

greater than the hardships suffered by the plaintiff

Criminal penalties for CWA

if intentinal 2500 imprisonment 1 year 1 million and 15 years injunctive relief and damages

Water Pollution Stems mostly from

industrial, municipal, and agricultural sources

Defenses to liability under CERCLA

innocent landowner defense

Point source water pollution control is based on a permit system, the permits are

key to enforcement states have primary responsibility for enforcing the permit system (EPA monitoring)

Violations and Penalties of FIFRA

no misleading labels commercial dealers: imprisonment up to 1 year, and fine to 25k farmers and other private users: 1,000 fine and incarceration up to 30 days

Ocean Dumping Act prohibits

ocean dumping of any radiological, chemical, and biological warfare agents and high-level radioactive waste established certain areas as marine sanctuaries

Water Pollutants include

organic wastes, heated water, sediments from soil runoff, nutrients, toxic chemicals, etc

State and local regulatory agencies

play a large role in implementing federal environmental legislation fed gov relies on state and local to enforce

Rivers and Harbors Appropriation Act

prohibited ships and manufacturers from discharging or depositing refuse in navigable waterways without a permit (1899)

Clean Air Act

provides the basis for issuing regulations to control multistate air pollution covers both mobile sources (automobiles and other vehicles) and stationary sources of pollution (electric utilities and industrial plants) of pollution

The Toxic Substances Control Act

regulates chemicals and chemical compounds that are known to be toxic—such as asbestos and polychlorinated biphenyls, popularly known as PCBs. The act also controls the introduction of new chemical compounds by requiring investigation of any possible harmful effects from these substances. -For new chemicals first determine their effects on human health and the environment.

Ocean Dumping Act

regulates the transportation and dumping of pollutants into ocean waters

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

regulates the use of pesticides and herbicides

Mobile Sources

regulations specify pollution standards and establish time schedules for meeting the standards

The Safe Drinking Water Act

requires the EPA to set maximum levels for pollutants in public water systems.

The EPA may require

special labeling, limit the use of a substance, set production quotas, or prohibit the use of a substance altogether.

Citizens can sue to enforce environmental regulations if government agencies fail to do so and they can also

sue to limit enforcement actions if agencies go too far in their actions

The Marine Protection, Research, and Sanctuaries Act

the Ocean Dumping Act

CWA sets specific schedules

under these schedules, EPA limits the discharge of various types of pollutants based on the technology available for controlling them

capricuous

whimsical; unpredictable