Environmental Law Lecture Notes Vocabulary

Flashcards covering key vocabulary and concepts from the lecture notes.

Clean Water Act (CWA) point source discharges

Under the Clean Water Act, all discharges to U.S. waters are prohibited without a National Pollutant Discharge Elimination System permit. There are both direct and indirect point sources, but a point source is any “pipe, ditch, well, container, or vessel”. Direct point sources include Industrial/Commercial facilities, storm sewers, and sewage treatment plants, which all discharge into waterways. Indirect point sources include industrial/commercial facilities and stormsewer runoff that is sent to sewage treatment plants (POTWs) and ends up in waterways.

Nonpoint source discharges

Under the Clean Water Act, all discharges to U.S. waters are prohibited without a National Pollutant Discharge Elimination System permit – these discharges are referred to as point source discharges. However, runoff discharges from places like farms, mines, construction sites, and parking lots are regulated as “nonpoint sources. There is extreme ambiguity of responsibility for nonpoint sources, but as they have become an increasing issue since the 80s, some steps have been taken for regulation by EPA; however, any provisions have no consequences for a state that does not do anything about nonpoint sources.

National Pollutant Discharge Elimination System (NPDES) permit

Under the Clean Water Act (CWA), the National Pollutant Discharge Elimination System (NPDES) is the permit program employed to regulate the discharge of pollutants from “point sources” into United States waterways. The permit will contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or people's health. The permit translates the general requirements of the Clean Water Act into specific provisions tailored to the operations of each person discharging pollutants.

Publicly Owned Treatment Work (POTW)

Publicly Owned Treatment Works (POTWs) are sewage treatment plants designed for the receiving and treatment of “sanitary” (non-industrial) wastewater. POTWs use 3-stage technology to clean water, allowing them to remove any numerical limitations. Primary treatment: liquids separated from solids using filters, screens, and settlement tanks. Secondary Treatment: breakdown of organic matter with microorganisms. Tertiary treatment: “Polishing” out remaining contamination using microfiltration and UV light. Cities like DC are building projects like tunnels to the Blue Plains POTW, which is the largest advanced wastewater treatment plant in the world – the main con is high costs.

Water quality standards

Section 303 of the Clean Water Act outlines specific requirements for each State to integrate and uphold the CWA. Within Section 303, the EPA requires each State to issue water quality standards, which are quantitative amounts to support the waters' designated uses. These waterquality standards are set based on the EPA’s water quality criteria (created based on scientific data gathered on water pollution).

Total Maximum Daily Limit (TMDL)

Section 303 of the Clean Water Act outlines specific requirements for each State to integrate and uphold the CWA. Within Section 303, the EPA requires each State to not only identify “impaired waterways” but also set total daily maximum loads (TMDLs) for eachimpairing pollutant. Over time, the court has enforced States’ obligations to prepare TMDLs and EPA’s obligation to issue appropriate TMDLs if States do not. Ex. Chesapeake Bay TMDL.

Hazardous waste generator

The Resource Conservation and Recovery Act imposes “cradle to grave”regulation of hazardous waste disposal to minimize the risk of potential mismanagement. The first step in this process are the generators of hazardous waste who must identify that they are in possession of hazardous waste, obtain an identification number for the waste from the EPA, and fill out a “manifest” aka proper storage, containment, and labeling that is under 90 days time without being considered a treatment, storage, and disposal facility. They must keep accurate records and submit an annual report to the EPA.

Wetlands (or “Jurisdictional” Wetlands)

Wetlands are protected under the CWA, but have long been disputed in the courts about their definition. In Sackett v. EPA (2023), SCOTUS rejected EPA’s initial expansive definition of a wetland and held that a wetland must have a continuous surface connection to a navigable waterway so that the two are indistinguishable. Wetlands filter pollution from runoff, reduce floods, provide habitats, and serve recreational purposes. Under Sackett, up to ½ of wetlands are no longer federally protected – now up to states.

Resource Conservation and Recovery Act (RCRA) solid waste

Under the Resource Conservation and Recovery Act (RCRA) solid waste includes solid, liquid, or semi-solid materials that have neen used or abandoned, including materials that are reused or recycled (ex. Storing for later use in production, sent to a recycling facility, sold for use by another company in its production, etc. UNLESS the material is being stored for immediate use in the same process that generated the material.

RCRA hazardous waste

Under the Resource Conservation and Recovery Act (RCRA) hazardous waste refers to solid waste which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause death or serious illness, or pose a substantial illness or pose a substantial hazard to human health or the environment.

Listed hazardous waste

Section 3001 of the Resource Conservation and Recovery Act requires the EPA to list specific hazardous wastes subject to particular regulations. These include hazardous wastes from non-specific sources (28 wastes), specific sources (148 wastes from 13 industries), and commercial chemical products (several hundred chemicals). Any waste mixed with a listed waste (mixture rule) or derived from the treatment of a listed waste (derived from rule) also qualifies as a listed waste.

Characteristic hazardous waste

Section 3001 of the Resource Conservation and Recovery Act requires the EPA to identify the specific of hazardous wastes in order to promulgate regulations. The characteristics of hazardous waste are an ignitability flashpoint less than 140°F, corrosivity of pH greater than 2 and less than 12.5, reactivity that is normally unstable/reacts violently with water, and a toxicity above the concentration established by the EPA.

Treatment, storage, and disposal facility (TSD or TSDF)

The Resource Conservation and Recovery Act imposes “cradle to grave” regulation of hazardous waste disposal to minimize the risk of potential mismanagement. The final step in this process is Treatment, storage, and disposal facilities (TSDFs),which require various specific standards under the EPA for the facility to operate legally, like increased security, recordkeeping, and personnel training measures. Each facility needs to obtain a permit from the EPA and must take other environmental precautions like groundwater monitoring and technical facility requirements like having pre-treated wastes before disposing of them in a landfill, and said landfill must have 2 or more impermeable layers. The ultimate goal of these sites is corrective action and promoting safe disposal of hazardous wastes, which is why there are also comprehensive closure plans for all RCRA units and plans for corrective action for all site contamination.

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”), potentially responsible parties (PRPs)

The Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA) requires the EPA to identify and prioritize the remediation of

hazardous waste sites across the United States on a National Priorities List. When the EPA or an

individual State takes action to clean up a hazardous waste site, they use “Superfund” monies allocated by

the government for these projects and sue the Potentially Responsible Parties for reimbursement for the

costs of the cleanup. The potentially responsible parties are the owner/operator of the facility, any person

who owned or operated the facility at the time of disposal of hazardous substances, any person who

arranged for the disposal or treatment of hazardous substances, and any person who selected the site for

transportation.

Joint and several liability

Under CERCLA, when deciding which Potentially Responsible Parties

should be held responsible for their role in the disposal of hazardous waste, joint and several liability is

used as an alternative to strict liability for situations when indivisible harm is not capable of

apportionment. Each party is subject to contribution actions against the other potentially responsible

parties for their fair share while considering “equitable factors” like their assets, role in the disposal of

waste, etc

Divisibility

Potentially Responsible Parties (PRPs) can defeat joint and several liability by showing that

there is a “rational basis for apportionment”

. The parties argue that the harm caused by each can be

separated and attributed to each party individually, overall limiting contributions. The courts have rejected

this defense until Santa Fe Railway vs. United States (2009), when SCOTUS upheld a district court

decision only to hold the railroad liable for 9% of a contamination concern, even though they owned 19%

of the site. When the divisibility defense is successful, the liable party is only responsible for its divisible

share; the government has to pay the remainder (under joint and several, the government will not pay

anything, no matter what).

Equitable allocation

Under Joint and Several Liability, the Potentially Responsible Parties (PRPs) will

have liability for hazardous waste cleanup equitably allocated among the liable parties in a contribution

action. The equitable allocation depends upon the PRP's role in the hazardous waste disposal, like the

direct role of the generator/transporter, the amount of waste, the degree of toxicity of the waste, the degree

of involvement of those in the manufacture, etc

Endangered Species Act (ESA) listing

listing: The listing of endangered species means any species that is in

danger of extinction throughout all or a significant portion of its range. The Fish and Wildlife Service can

determine that a species is endangered because of A) present or threatened destruction/modification of

habitat, B) overutilization for commercial/recreational/scientific/educational purposes, C)

disease/predation, D) other natural or manmade factors. The FWS must use the “best scientific and

commercial data available” and cannot consider the potential economic consequences of listing the

species. To support the scientific basis for its decisions, the FWS has also adopted a peer review policy of

seeking the expert opinions of outside specialists before making a listing determination.

ESA section 7 consultation

The ESA Section 7 Consultation states that each federal agency, in

consultation with the FWS, shall not take action likely to jeopardize the continued existence of any

endangered species or threatened species or result in the destruction or adverse modification of critical

habitat of such species. In TVA v. Hill (1977), the Tennessee Valley Authority began construction of the

Tellico dam on the Little Tennessee River, but a biologist discovered snail darters (a new fish species)

downstream from the dam site. FWS then listed snail darters as endangered and the river as a critical

habitat; SCOTUS stopped dam construction because TV A (federal authority) would jeopardize the

continued existence of an endangered species. This resulted in Congress creating an Endangered Species

Committee in 1978, which has the authority to exempt federal action from the ESA if there are no

reasonable alternatives and the project benefits clearly outweigh environmental costs

ESA section 9 prohibition on “takes”

Section 9 of the Endangered Species Act holds that you cannot

import, export, sell, deliver, receive, carry, transport, or ship any species on the endangered species list. In

addition to this, it is also unlawful to take any such species within the United States: taking can be defined

as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such

conduct. In 1981, FWS issued a regulation that defines harm to include habitat modification, meaning

both public and private parties could be charged with “taking” an endangered species merely by

modifying its habitat and causing injury or death – upheld in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon (1995). The Trump administration plans to amend the takings

prohibition to no longer include habitat modification.

Critical habitat

When the Fish and Wildlife Service creates a listing for an endangered species, they

also concurrently create a listing to designate any habitat of that species that is considered a “critical

habitat” that needs to be protected. Critical habitat includes the specific areas within the geographical area

occupied by the species with physical/biological features essential to the conservation of the species.

Critical habitats are designated based on the best scientific data available and take economic impact into

consideration.

Incidental take permit

The Secretary of the Interior/FWS permits taking that would otherwise be

prohibited if taking is incidental to (not the purpose of) carrying out an otherwise lawful activity. The

permit authorizing any taking must contain “a conservation plan” which specifies which steps the

applicant will take to minimize and mitigate the impacts on the endangered species and the funding to

support those efforts. Over 1000 ITPs that contain habitat conservation plans have been issued, mostly to

property owners who wish to develop their lan