Environmental Law

Toxic Substances Control Act (TSCA or TOSCA) 

• Controls manufacture, use, disposal of toxic substances 

Resource Conservation and Recovery Act (RCRA) 

• Regulates disposal of potentially hazardous substances w permitting system 

• Creates grants to encourage cleanup 

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

• Creates a fund, held & administered by gov, to cleanup former dumping sites for hazardous wastes 

• Creates categories of potentially responsible parties (PRPs) to identify and hold accountable those responsible for hazardous waste 

• Primarily funded by tazes on petroleum and chemical industries 

The Superfund Amendment and Reauthorization Act permits EPA to bring suit against PRPs for cleanup costs 

--> Who can be a PRP? 

• Includes current and former site owners, tenants, operators, & transporters of hazardous waste 

• Companies that acquire or merge w PRP buy into CERCLA liability 

  • However, parent companies are not automatically liable for subsidiary's CERCLA exposure (US v. Bestfoods, 525 US 51 (1998)) 

• Default rule: PRPs are held liable for cleanup costs (joint and several liability) 

  • In other cases, PRPs may be held liable according to fault 

  • PRP must show reasonable basis for apportioning harm – if it can prove it didn't pollute, it can be not held liable 

   

For example: 

Burlington Northern Railway/Shell Oil Co. v. U.S., 556 U.S. 599 (2009) 

• CERCLA self-audit: voluntarily inspecting your own site and reporting to the government 

  • Can minimize liability if a company is able to meet a strict list of requirements including; 

    • Self-audit was voluntary 

    • Agreement to cleanup timeframe 

    • Proof that no one was seriously harmed by the contamination 

• Liability can be civil (cost of cleanup, damage to natural resources, etc.) and criminal 

Exceptions to Liability (to get out of PRP status): 

1. Innocent landowner (ILO) status 

   1. Current owners can seek ILO status and apply for grants for cleanup costs 

   2. In order to get this status, company must: 

      1. Make all appropriate inquiries (AAIs) prior to purchase 

      2. Cannot know or have reason to know of contamination prior to purchase 

   3. Once deemed ILO, company must: 

      1. Cooperate w EPA 

      2. Take reasonable steps w regard to hazardous materials 

      3. Comply w land use regulations 

       

2. Bona fide prospective purchase (BFPP) status 

   1. Even if they knew property was contaminated at time of purchase, current owners can seek BFPP status if: 

      1. Acquired property after 1/11/2002 

      2. Made AAIs 

      3. All material disposal took place before purchase & BFPP has no affiliation w polluter 

      4. Do not impede restoration efforts & cooperate w EPA on cleanup 

• Tenants of BFPPs can also seek BFPP status 

Clean Water Act 

1. Establishes effluent guidelines(I.e. tech based standards for discharges into waterways) organized by industry 

2. Regulates discharges of pollutants into navigable waterways (defined as "waters of the US") 

• Sackett v EPA, 598 US (2023) 

  • Limits reach of CWA by requiring that wetlands have a "continuous surface connection" w stream, ocean, river, or lake in order to be regulated 

  • Even the placement of dirt from adjoining property into a stream can be a CWA violation 

    • I.e. a plant that releases hot water from steam generator must have permit to release hot water into the stream near plant 

   

• National Pollutant Discharge Elimination System (NPDES) 

  • Requires permits for any point source discharge directly into waterways 

    • Effluent guidelines are incorporate into NPDES permits 

  • Pollutants are broadly defined – can include dirt, rocks, heat 

    • Pilgrim Nuclear Power Plant example 

   

• Boston Harbor Cleanup success story because of the CWA 

  • Represents one of the largest public works projects taken on by New England 

  • EPA sued Boston to comply w CWA 

Clean Air Act 

• Authorizes EPA to set air quality standards and oversee state implementation of those standards 

• Nonattainment areas: areas that do not meet standards 

  • Subject to emissions offset policy, which requires new factory to show: 

    1. Greatest possible emissions controls 

    2. Company has all other factories in compliance 

    3. New emissions will be offset by reduction in emissions in area 

     

• Emissions permits are transferable 

  • There is a market for them 

  • Significant portion held by environmental groups