Environmental Law (ESC4100) Final Exam

Clean Air Act (CAA) Overview

purpose: control air pollution

titles

• stationary sources

• mobile sources

• acid rain

• permitting program for major sources

• stratospheric ozone depletion

established criteria air pollutants (6 identified)

• SO2 (sulfur dioxide)

• CO (carbon monoxide)

• PM (particulate matter)

• NOX (nitrogen oxides)

• Pb (lead)

• O3 (ozone)

*main focus of CAA from 1970 - late 1990’s

Resource Conservation and Recovery Act (RCRA) (1976)

what are hazardous wastes?

3 criteria

• must be solid waste as defined by RCRA

  • garbage, refuse, ash, liquids, gas

• must be waste

  • any material that is abandoned/discarded

  • any inherently waste-like material that should be discarded

• must be hazardous waste as defined by RCRA

  • listed in EPA regulations or

  • hazardous characteristics

    • ignitability, corrosive, reactive, toxic

  • mixture rule

  • derived from rule

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

response to love canal

first major law addressing leaking/inactive/abandoned sites

• short term emergency response

• long term cleanup

remedial, not regulatory

• applies to things that happened in past

applies to improper releases of hazardous substances (not just waste)

cleanup and liability focus

• contrast w RCRA

Econlockhatchee River Characteristics

characteristics

little sub-basin:

• originates in developed portion of Orlando

• impacted water quality from channelization, sewage plants, urban stormwater

big sub-basin:

• originates in large headwater swamp

• 38 miles long, 25 miles wide

• flows north from east

in 1990, faced intense development pressure from CF population boom

Riparian Areas

land area that borders a body of water/is influenced by that water body

options to protect riparian areas

• voluntary

  • incentives

• land acquisition

  • full ownership, conservation easement, but very $$

• Gov Regulation

  • local, state, fed, or some combo

Riparian Buffer

space separating a body of water from a land mass/area

purposes:

• protect both water quality and quantity

• protect aesthetics

• protect wildlife habitat

*width of buffer dependent upon scientific, socioeconomic, legal and political factors such as function, cost/benefit, and legal limitations

Econlockhatchee River Case

who was involved?

• south john river water management district

• consultants

• stakeholders

• friends of the econ - home builders - realtors association

• property owners

consultant findings/recommendation

• riparian areas provide habitat for aquatic and wetland dependent wildlife

• existing local, state, and federal laws did not protect riparian areas and wildlife

econ river protection zone

• protect habitat of wetland and wetland dependent species in preservation zone

• prohibit most land clearing and structures in preservation zone

• a 2nd conservation zone to buffer 1st zone and protect more habitat

units of gov

• 3 counties, 3 cities

state and regional agency authority

• permits for construction/alteration require they “will not be harmful to the districts water resources”

local regional authority

• broad authority to adopt local laws to promote health, safety, and welfare of community

  • riparian buffer regulations generally interpreted as valid purpose

Outcomes of Econlackhatchee River Case

wmd adopted regulation establishing a 550’ buffer zone

counties adopted ordinances establishing protection zone

buffer zones still in place

lawsuits challenging legality of buffer zones

• did WMD exceed statutory authority?

• do buffer zones cause 5th amendment regulatory takings of private property?

*highlights the ongoing battle between legal and environmental battles as it emphasizes the struggles between human activity and the preservation of critical ecosystems

Types of Air Pollution

troposphere

• ozone

  • lungs, corrosive

• nox/sox compounds

  • acid rain

• pm

  • respiratory damage

• lead

  • neuro damage

• other hazardous substances like benzene

  • carcinogenic, mutagenic, etc

• co2 buildup in atmosphere

  • enhanced greenhouse effect/global warming

stratosphere

• 03 depletion

  • harmful radiation

Pre-Clean Air Act (CAA)

common law

• wrong against person/property

  • public nuisance action

    • duty: unreasonable interference w a right common to the public

    • breach of duty

    • causation of injury

    • injury

GA v TN Copper Company

f - GA common law public nuisance against TN Copper Co alleging copper smelter further destroyed forests, orchards, crops

• seeking damages/injunction

i - whether court should order an injunction when evidence of causation/injury & plaintiff is a state seeking to protect citizen interests

h - yes, injunction

r - court found that the interests of GA citizens outweighed benefits of TN Copper Co

*TN Copper settled w GA

*early example of emission limitations/standards

Clean Air Act (CAA) Cont’d

toxic/hazardous materials not regulated til 1990’s

• benzene, asbestos, mercury, pcb’s

carbon emissions

• mobile sources - 2010’s

• stationary sources - not yet

air pollution standards

• ambient (background air quality)

• primary NAAQS for criteria pollutants

  • levels set to protect human health whilst allowing an adequate margin of safety

• secondary NAAQS

  • levels set to protect public welfare

    • environment, visibility, climate, property, etc

NAAQS (National Ambient Air Quality Standards)

• health based

• EPA must periodically review/revise criteria and standards to protect

emission standards

• technology based

Whitman v American Trucking Association (1997)

f - EPA proposed stricter ozone/particulate NAAQS, which require reduced emissions from buses and trucks

i - whether EPA may consider costs when implementing NAAQS

h - EPA may not

• EPA must set standards at level “to protect public health with an adequate measure of safety”

State Implementation of NAAQS

adopt SIPs (State Implementation Plans)

monitor ambient air and report to EPA

require permit for stationary sources (title v permits)

apply emissions standards

• tech based standards to control pollution from stationary sources

EPA designates areas of country according to whether they meet NAAQS as:

attainment areas

non-attainment areas

• areas that dont meet NAAQS

• SIPs in NA areas must include

  • transportation control plans

  • offset required for new/modified sources

  • more stringent emission standards

  • other actions like burning bans

insufficient data areas

Criteria Pollutant Emission Standards

to control pollution released from stationary sources

tech based standards

existing sources (power plants)

• fossil fuel burning power plants release massive amounts of pollution

existing source exemption

• CAA exempts existing sources from NSPS - “grandfathered”

• unless major mods resulting in

  • more pollution

  • new pollutants

• if major mods, then NSPS apply

Prevention of Significant Deterioration Program (PSD)

areas cleaner then NAAQS

must preserve air quality of the area

all national parks

National Emissions Standards for Hazardous Air Pollutants Program (NESHAPS)

HAPs

• no ambient standards

• no systematic monitoring of ambient air for HAPs

emission standards

• originally based on protecting human health

  • abandoned in 1990

• today: MACT

  • maximum achievable control technology

    • 1990 CAA amendments

    • tech based

    • specific types of industries/HAPs

MACT + Residual Risk

residual risk assessment by EPA 10 years after MACT adopted

• adopt additional emission standards if risk reduction needed/protect human health

CAA Permits

emissions standards applied to stationary air pollution sources through permits

• title v operating permit for major sources

NC v TVA

f - TVA coal powered power plants in TN/AL releasing air pollutants causing public nuisance that harms citizens in NC

i1 - whether TVA plants are public nuisance

i2 - whether CAA displaces public nuisance suit by NC

h - TVA plants = nuisance; CAA can not displace public nuisance suits

r - harm to NC residents > benefits from TVA plants. TVA failure to install readily available control tech is not reasonable conduct

Mass v EPA Follow Up

EPA assessed whether ghg endangered public health

EPA adopted mobile source carbon regulation (2014)

American Electric Power v Connecticut

f - 8 states + some sue alleging power plant

• C emissions are public nuisance. after suit filed, Mass v EPA decided; EPA initiated rulemaking to regulate C emissions from coal power plants

i - whether CAA displaces federal common law

h - CAA displaces federal common law nuisance suits to abate C

r - CAA “speaks directly” to emissions of C

*common law suits to control C no longer allowed

WV v EPA

f - new regulation requiring existing coal fired power plants to reduce C by subsidizing more generation by gas/wind/solar sources or reduce production of electricity

i - whether CAA granted EPA authority to devise emissions caps based on “generation shifting” approach

h - no, EPA regulation is invalid

r - EPA exceeded statutory authority

*court created/applied “major questions doctrine”

*CAA does not provide EPA authority to regulate carbon from stationary sources

Exemptions to Hazardous Waste

domestic sewage (NPDES)

irrigation return flows

industrial NPDES discharges (pretreated)

nuclear materials (nuclear laws)

household wastes

Types of people that handle HW

generators

transporters

TSDs

Requirements for Generators

notify EPA/get ID number

label wastes

fill out uniform HW manifest

keep records

90 day storage limit; otherwise need TSD limit

Requirements for Transporters

notify EPA/get ID number

uniform HW manifest

• accept waste only if in manifest

• make sure TSD signs manifest

• sign, date, return copy to generator

10 day limit at transfer facility

• if > 10 day, TSD permit required

if they mix wastes, can become generators

Treatment/Storage/Disposal Facilities (TSD) Requirements

EPA permit required (10yr)/get ID num

sign/date/return manifest to generator within 30 days

test/analyze waste composition

treat/store/dispose of wastes properly

security systems

emergency planning for spills

if HW migrates, cleanup part of permit

closure plan

• financial responsibility

• 30 year monitoring/maintenance

Land Ban

RCRA enforcement

• shared by EPA, DOT, states

• cleanups

  • gen, trans, TSD causing spill

  • EPA if imminent/substantial endangerment to health/environment

  • may become CERCLA site

    • most EPA cleanups are CERCLA cleanups

Underground Storage Tanks

problem:

• steel tanks corrode/leak

existing UST systems

• register w EPA

• Due Diligence review

  • env audits (phase I,II)

    • buyers of industrial/commercial property

    • do env hazards exist?

  • if audits find no hazard

    • buyer can claim innocent purchaser defense to avoid potential CERCLA liability

  • if audit finds hazards

    • helps establish value of land

new UST

• notify EPA

• no new unprotected tanks

• new tank performance standards

  • double lined, leak detection system, non-corrosive

• exemptions

  • tanks holding < 110 gallons

  • heating oil tanks if oil used on premises where tank stored

Solid Waste Management

solid waste

• garbage, trash

• open dumps prohibited

• sanitary standards for landfills

  • siting, construction, operation, closure plan

construction/operation standards

• liners required

• leachate required

• methane venting or capture

• cover daily

CERCLA Procedures

site listing

• National Priorities List (NPL)

• based on risks to health/environment

National Contingency Plan (NCP)

• procedures for CERCLA response actions

establishes “superfund”

• funding history

  • pre 1995

    • 82% petroleum/chemical industry tax

    • 18% gen revenue tax

  • today

    • 100% revenue tax

  • fewer cleanups

CERCLA Triggers

release/substantial threat of release

• leaking, leaching, dumping, disposing, abandoned drums/containers

hazardous substance

• listed as toxic/hazardous by another statute; any amount

• any pollutant/contaminant which EPA determines presents imminent/substantial danger

from vessel/facility

• buildings, structures, pipe, well

• any site/area where hazardous substance released

by responsible party

4 Categories of Partially Responsible Parties (PRPs)

generators

transporters

current owners/operators

past owners/operators

Partially Responsible Parties (PRPs)

liable for cleanup even if “no fault”

• strict liability

no pre enforcement judicial review

government can be a PRP

Defenses to PRP Liability

generators

• exact fingerprint not required

transporters

• must have selected facility

current owner/operator

• regardless whether caused/contributed

  • “no fault” required

defenses

• innocent purchaser

  • only if inquire

• state/local government

  • if did not cause

• banking industry

  • if no role in management

• inheritance

past owners/operators

• retroactive

• if owned/operated at time of release, regardless whether they caused it or not

Liability Standards

strict liability

• no fault required

divisible/apportionable liability

• used when EPA can determine PRPs contribution

• costs divided/assigned to each PRP

joint/several liability

• used when EPA can determine PRPs contribution

• EPA can hold any PRP 100% liable (or some other portion)

no pre enforcement judicial review

• PRP must cleanup first, then can challenge

contribution suits allowed

• PRP sues PRP

corporate liability

individual liability may be possible

• pierce corporate veil

• if pattern of behavior that endangers others

General Defenses to Liability

act of God

act of war

act/omission by 3rd party (unless contractual relationship)

Response Options at Superfund Site

removal action

• emergency response

  • short term to protect public health

  • 12 month limit

  • limit on expidentures

  • listing not necessary

• remedial action

  • long term cleanup

  • site must be on NPL if superfund $ used

  • done for Chattanooga Creek

  • how clean is clean?

who pays for emergency response/cleanup?

• PRPs

• superfund

• EPA prefers that responsible party pays

  • may not pay because unidentified/bankrupt

Recoverable Costs from PRPs

response costs

• removal/remedial

  • all costs consistent w NCP

  • costs of investigating, testing, assessment, cleanup, etc

natural response damages

• land, fish, wildlife, biota, etc

real estate transactions

• “Due Diligence”

• environmental audits (phase I,II,III)

  • done by buyers

  • do environmental hazards exist?

  • help establish value of land

  • allow purchaser to claim “innocent purchaser” defense/avoid potential CERCLA liability

CERCLA Evaluation

strict liability

• harsh but effective

• many sites need cleanup but

  • not listed yet

  • not severe enough to make NPL

• many sites on NPL remain to be cleaned

• polluter pays abandoned

Tennessee Products Site (Coke Plant)

coal gasification/coking

unknown waste management for 70 years

• on/off site

• ditches ran into Chat creek

citizens living in Chat creek area

• 6k area

• several residential neighborhoods

• 98% african american

• 60% below poverty

• CERCLA removal/remediation cleanups

relocation of residents to the area

• interstate construction displaced several minority communities

• 3 large public housing units

• schools

*env justice community

Chattanooga Lead (Pb) Superfund Site

foundry sands used when forging metals

• sands absorb heavy metals

sands used as fill when homes built

foundry sands contain lead

residences impacted in numerous neighborhoods

remediation ongoing

TN DOH May 2023 Health Consultation

• for SE Chat lead site

• site includes several contaminants of concern

  • lead, copper, etc

• data gaps because of sampling permission not provided from multiple landowners

Land Use Planning/Regulation

local government controls how land used

• town, city, county, municipality

state government adopts statutes that create some requirements for local government

• federal gov not directly involved

comprehensive planning

• local gov adopts 10-30 year comprehensive plan to guide future growth

  • future oriented

  • rational

  • determines present/projected conditions

    • data/analysis

  • comprehensive

Common Sections of Comprehensive Plans

housing

• high/low density, rural

econ development

• industrial, commercial

transportation

water/sewer

env/conservation

recreation

intergovernmental coordination

Land Use Maps (Comp Plan Common Sections Cont’d)

existing land use

• inventory

future land use

• zoning categories

infrastructure to support land uses

• roads, schools, law enforcement, sewer, water, etc

infrastructure issues

• timing

  • available at same time as new development

  • if not

    • inadequate for new residents

  • who pays?

    • local gov, company, etc

concurrency

• infrastructure available at same time as new development

Issue - Legal Status of Comp Plan and Relationship to Land Use Ordinances/Development Approvals

optional/advisory policy document

• mandatory document

  • require consistency

    • ordinances/dev approvals must be consistent w comp plan

  • require concurrency

• *incompatible uses

Types of Zoning and Local Ordinances

land use

• residential, commercial, recreation, etc

building codes

safety, morals

overlay zones

• ex: aquifer recharge over residential area

performance zones

• set goals but allow property owner to decide how to meet goal

Examples of Environmental Zoning Ordinances

riparian/wetland buffers

landscaping/greenspace

stormwater

wetlands

aquifer recharge/protection

wellhead protection

septic tanks

Tennessee Growth Policy Act

overview

• TN statute

• adopted 1998

• requires development of local growth plans

  • mando/optional?

• ID sensitive areas