Environmental Law (ESC4100) Final Exam

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50 Terms

1
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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”

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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

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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

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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

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Prevention of Significant Deterioration Program (PSD)

areas cleaner then NAAQS

must preserve air quality of the area

all national parks

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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

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MACT + Residual Risk

residual risk assessment by EPA 10 years after MACT adopted

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

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CAA Permits

emissions standards applied to stationary air pollution sources through permits

  • title v operating permit for major sources

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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

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Mass v EPA Follow Up

EPA assessed whether ghg endangered public health

EPA adopted mobile source carbon regulation (2014)

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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

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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

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Exemptions to Hazardous Waste

domestic sewage (NPDES)

irrigation return flows

industrial NPDES discharges (pretreated)

nuclear materials (nuclear laws)

household wastes

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Types of people that handle HW

generators

transporters

TSDs

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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

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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

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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

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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

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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

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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

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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

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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

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4 Categories of Partially Responsible Parties (PRPs)

generators

transporters

current owners/operators

past owners/operators

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Partially Responsible Parties (PRPs)

liable for cleanup even if “no fault”

  • strict liability

no pre enforcement judicial review

government can be a PRP

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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

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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

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General Defenses to Liability

act of God

act of war

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

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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

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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

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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

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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

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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

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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

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Common Sections of Comprehensive Plans

housing

  • high/low density, rural

econ development

  • industrial, commercial

transportation

water/sewer

env/conservation

recreation

intergovernmental coordination

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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

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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

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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

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Examples of Environmental Zoning Ordinances

riparian/wetland buffers

landscaping/greenspace

stormwater

wetlands

aquifer recharge/protection

wellhead protection

septic tanks

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Tennessee Growth Policy Act

overview

  • TN statute

  • adopted 1998

  • requires development of local growth plans

    • mando/optional?

  • ID sensitive areas