Clean Water Act

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					Big ideas in environmental law

  I.    Major aspects of current environmental problems:
        a. Collective action
        b. uncertainty of mechanism and effect
                 i. potentially catastrophic effects
                ii. irreversibility
              iii. controllability (i.e. auto emissions, consumer lifestyle)
        c. Problem of determining regulatory target (i.e. corral reefs - is it pollution
           or loss of recreation? Both?)
        d. Legal aspects
                 i. Who should pay?
                ii. So many interests
              iii. Disadvantages of ad hoc system (lots of loopholes)
               iv. System forces us to evaluate human preferences (see standing,
                    cost/benefit analysis)
                v. Competing environmental goals
               vi. What is an “environmental harm”?
        e. Nina’s two conclusions:
                 i. Moral imperative to protect e. beyond economic + h. health
                ii. Need collective action probably through government
              iii. Beyond that, what is ideal?

  II.   Economic perspective on the Environment
        a. Problem of public goods and tragedy of the commons
                i. Public goods: nonrivalrous + nonexcludable
               ii. Public goods undersupplied because of high T costs and free riding
        b. Trying to measure “value” of things not marketable  from that, how can
           you establish, for ex., and “efficient” level of pollution?
                i. Should we even be thinking about “efficiency”?
        c. Internalizing externalities  how do we do that?
                i. Coase Theorum
        d. Cost/benefit analysis
                i. Social cost = social benefit
               ii. Human centered
              iii. Focus on private costs v. private benefits
                       1. Problem: we define collective goals differently than our
                           private goals


Private Law Environmentalism

  I.    Private Nuisance
        a. Basic defn: Nontrespassory invasion of another’s interest in use and
            enjoyment of her land
        b. What future incentives does private nuisance give?
                 i. No incentive for improved technology
                ii. Court not concerned w/traditionally non-economic use of property
       c.   Susquehanna Fertilizer - strict property rights
       d.   Madison v. Ducktown Sulfur - balancing of equities approach
                 i. Although clear case for nuisance, not going to impose injunction
                    because of great harm to business and town
       e.   What’s better for the environment - Susquehanna or Madison?
                 i. Depends on alternative uses of land
                ii. Former forces some internalization of costs - although, court-
                    imposed level picked (“reasonable”)
              iii. Injunction might be best  COASE
               iv. There’s a lot left out here -
                        1. Non-traditional uses
                        2. Whether resources are “irreplaceable”?
                        3. Distributional effects?
                        4. Is pollution reduced? At what cost?
       f.   Carpenter v. Double R Cattle Co. - modern Ducktown Sulfur
                 i. Weighing the loss of enjoining ranching operation to benefit to
                    landowner
                ii. Because ID population low, all state suited for this industry
              iii. NM: Majority suggesting that cost of industry need be born, in
                    part, by unfortunate few who live nearby  overly simplistic and
                    outdated economic thought: internalize the externalities
                        1. But, needs to be done on national level

II.    Trespass
       a. Standard: SL
       b. Remedy: injunction and maybe damages
       c. Problems addressed: liquids, waste disposal, maybe air pollution if visible
       d. Limits:
              i. Aquifer pollution, most air pollution, real estate devaluation, noise

III.   Public Nuisance
       a. Basic defn: unreasonable interference w/right common to general public
          (health, safety, comfort, etc.)
       b. Application:
               i. No balancing test - enough that state has decided that it needs to
                  protect its citizens (AG decides whether case necessary 
                  foreshadows judicial deference to statutory policy decisions)
       c. Missouri v. Illinois (1906)
               i. Missouri cannot bring public nuisance claim against IL for
                  redirecting its sewage toward Missouri because Missouri treats the
                  river in the same way.
                      1. Causation problem
                      2. Not “unreasonable” if P doing it as well (unclean hands)
              ii. Best solution is for St. Louis to filter drinking water
        d. Georgia v. Tennessee Copper Co.
               i. GA can enjoin TN Copper from emitting fumes that are killing
                  forests, orchards, etc. in GA.
              ii. Reasoning:
                      1. Because state is quasi-sovereign, not required to give up its
                          rights for damages (not just liability right)
                      2. Causation shown
                      3. no LCA option for GA
                      4. GA has already done its own utility balancing
        e. Overall thoughts on public nuisance law:
               i. court can make some decisions about misallocation of resources
              ii. can permit a more deliberative process in deciding what the values
                  are that a community wants to protect and what we want to protect
                  them for (i.e. protect sovereign’s decision to come into court)
             iii. but who is left out of the decision making process?
             iv. Judges determine what is “unreasonable”  that can be a problem
              v. There’s nothing “illegal” about Chicago’s conduct unless Missouri
                  wins the suit; if there are problems finding a P (information,
                  resources)  problem for defining law (echoed in Laidlaw)
             vi. Any incentive to develop better technology? Not in MO v. IL; but
                  probably for TN v. GA.



Regulations
  I.    Determining the regulatory target
        a. Protect environment? Human health? Recreation?
        b. Regulate sources that are easily targeted?
                i. Public choice theory - regulation more difficult against few
  II.   Bases for control (all command-and-control)
        a. Health (or environment)
                i. How do you figure out what level of pollution is?
                       1. Allowable effluents (categorized by different industries)
                                a. Could be quantitative or qualitative standard
                       2. Zero emissions
               ii. No incentive to go beyond effluent limit (pollute less)
              iii. Doesn’t do cost/benefit analysis.
              iv. Not flexible in terms of changing standards or adapting to growth
                   (unless qualitative, but then difficult to assess)
               v. Assures environmental protection
        b. Technology (feasibility)
                i. Could be under- or over- protective (little certainty)
               ii. Doesn’t provide incentive for innovation
              iii. Distributional consequences (cheaper for cruise ships than
                   community) at the level of the dischargers
              iv. Not very flexible
               v. Enforcement is easy
               vi. Implementation is easy
         c. Balancing: comparison of gains v. costs
  III.   Types of Regulation
         a. Command and control
         b. Post-activity (not directed at particular target)
                 i. Ambient or harm-based
                        1. Performance standards - good for e. health
                ii. Information disclosure  market incentives
               iii. Marketable allowances (notes on CAA here)
               iv. Liability Rules and Insurance Requirements (strengthen common
                    law)  CERCLA
                        1. Good if regulatee has better info
                        2. Litigation problems
                        3. Cheap for government
         c. Want/Need flexibility


Administrative Law - insert what you know here.

  I.     Big ideas -
         a. Executive Agencies and everything that comes w/that
         b. APA  notice-and-comment rulemaking
                  i. Agency needs to be able to defend rules on record; political
                     pressure fine (Sierra Club v. Costle)
         c. Judicial Review
                  i. Hard look doctrine
                 ii. Court cannot impose more procedure than APA
                iii. Standing and ripeness are big issues for environmental suits
                iv. Chevron
         d. Other forms of review:
                  i. Congressional review (informal, statutory detail)
                 ii. Executive - E.O.s, informal
Major Federal Laws Regarding Waste (p. 202)

Statute          Waste      Wastes                    Regulatory         Basis for
                 Management Covered                   Approach           Controls
                 Objective
                 Protect and        All discharges    Performance        Technology
Clean Water
                 Improve            to surface        Standards          with health-
Act
                 Surface Water      waters            (emissions         based backup
                 Quality            including 126     limits), ambient   (including
                                    priority          standards.         feasibility).
                                    pollutants
Clean Air Act    Protect and        All emissions     Ambient            Health,
                 Improve Air        to air.           Standards,         technology
                 Quality                              performance
                                                      standards
                                                      (emissions
                                                      limits)
RCRA             Control            Hazardous and     Use                Health
                 hazardous and      solid waste       restrictions,
                 solid wastes                         design and
                                                      performance
                                                      standards,
                                                      information
                                                      disclosure
CERCLA           Cleanup of         All hazardous     Performance        Health, with
                 abandoned          wastes found at   and design         cost
                 hazardous          sites             standards          effectiveness
                 waste sites,                                            constraint
                 emergency
                 response


CLEAN WATER ACT
  I.   Water Pollution Problems
       a. Major threats today: non-point source (agriculture, combined sewer
           overflow systems, etc.), habitat modification, resource extraction, forestry
  II.  Statutory Authorities for Protecting Water Quality
       a. History
               i. Prior to 1972, states designated “uses” for water bodies (subject to
                  EPA approval) and then set water-quality criteria based on that use
                  (if designated “industrial,” then raw sewage is fine!)
                       1. Focus: USES
                       2. Failure - race to the bottom
                              a. Practical - EPA wasn’t vigilant
                      b. Science - hard to tell “water quality” in single water
                         body
                      c. Enforcement
b. Purpose/Goals:
        i. Focus: point SOURCES (not water quality)
       ii. Purpose: “restore and maintain the chemical, physical, and
           biological integrity of the Nation’s waters”
     iii. Ex ante prohibition (contrast to common law)
      iv. Standard: technology-based (best control that money can buy)
       v. Nationwide permit system
c. Mini-Overview:
        i. Point Source Pollution
               1. NPDES
                       a. Source based
                       b. Tech-based attempts
               2. Wetlands - dredge/fill § 404
               3. Stat. interpretation questions
                       a. “point source”
                       b. “additional of a pollutant”
                       c. “navigable waters”?
               4. Underlying constitutional question (CC) informs the
                  statutory interpretation question
       ii. Water Quality Standards
               1. Setting (by States, EPA approval)
               2. As affecting NPDES
               3. Toxics
               4. § 401
               5. TMDLs

d. Overview of Structure of CWA
        i. § 101 Goals: elimination (now reduction) of pollution
       ii. § 301 Effluent limitations - prohibits discharge unless in
           compliance with permit requirements
     iii. § 302 Water Quality Related Effluent Limitations: authorizes
           stricter water quality standards as necessary to meet desired quality
      iv. § 303 Water Quality Standards and TMDL’s
       v. § 304 Federal Water Quality Criteria and Guidelines: EPA mus
           adopt water quality criteria and guidelines for effluent limitations,
           pretreatment programs, and administration of the NPDES program
      vi. § 306 New Source Performance Standards: EPA must promulgate
           nsps reflecting best demonstrated control technology
     vii. § 307 Toxic and Pretreatment Effluent Standards
    viii. § 309 Enforcement Authorities: authorizes compliance orders and
           administrative, civil, and criminal penalties
      ix. § 319 Nonpoint Source Management Programs
       x. § 402 NPDES Permit Program
                     1. NPDES: National Pollution Discharge Elimination System
                             a. EPA sets effluent limits designated by industry
                             b. EPA or states implement the permit program
                             c. Violation = enforcement by states, feds, citizens
              xi. § 404 Dredge and Fill Operations
             xii. § 505 Citizen Suits
            xiii. § 509 Judicial Review

       e. Scope of Federal Authority to Regulate Water Pollution
              i. NAVIGABLE WATERS = waters of the US
                     1. Extend to CC authority
             ii. US v. Riverside - wetland adjacent to (probably through
                 groundwater connection) navigable-in-fact water body is
                 “navigable water” for purposes of the Act
                     1. “Dynamic” statutory interpretation: Functional, purpose-
                         based approach: Congress intended to look at whole aquatic
                         system
                             a. “navigable” is of limited import
                             b. HYDROLOGICAL connection (Nina’s fav)
            iii. US v. Wilson - Corps defn. of “waters of US” invalid because it
                 raises constitutional issue (better to avoid).
                     1. Waters which “could affect” might not satisfy Lopez
                     2. Formal interpretation of the language
                     3. Concurrence: need surface connection to navigable waters
                         (narrow reading of Riverside)  but no majority here
            iv. SWANCC - CWA does not extend to intrastate, isolated, non-
                 navigable seasonal ponds which are habitat for Migratory Birds
                     1. Reasoning: Clear Statement Rule  w/out a clear
                         statement from Congress to address the constitutional
                         question raised by the Migratory Bird Rule, assume that
                         Congress didn’t mean to present it. Ask constitutional
                         question before you get to Chevron.
                     2. Dissent: Rivers and Harbors Act addressed “navigability”
                          CWA must go beyond that!
             v. Underlying constitutional question informs the statutory
                 interpretation question

III.   Effluent Limitations on Point Source Discharges
       a. Defining Point Sources Subject to Permit Requirements
               i. Any “point source” discharger must get permit.
                      1. § 502(12) - “discharge of a pollutant”: any addition of any
                          pollutant to navigable waters from any point source
                      2. § 502(14) - “point source”: discerning, confined, discreet
                          conveyance
                              a. Why this defn? Ease of enforcement.
                3. § 502 (7) - “navigable waters”: waters of the US, including
                    the territorial seas
       ii.   Why point sources?
                1. Easier to control both politically and administratively (not
                    infringing on land use controls)
      iii.   § 402(a) - Permits for the discharge of pollutants
                1. NPDES may be administered by EPA or by states
                    w/delegated authority
                         a. EPA can issue permits or approve state plan
                         b. EPA cannot require more permitting requirement
                             than those in the statute (American Forest)
                         c. States can put greater conditions on WQ cert (§401)
      iv.    NRDC v. Costle (1977) (EPA can’t categorically exempt sources)
                1. CWA text, history (and precedent) do not allow EPA to
                    categorically exempt certain point sources from § 402
                    requirements (silvicultural, small CAFO’s, small irrigation
                    return flows, nonfeedlot, etc.)
                2. Why did EPA want this? Some of these “point sources”
                    are actually run off (administratively burdensome)
                3. Court: Just because it is difficult, doesn’t mean that EPA
                    can do nothing: § 402 is flexible - can choose a different
                    kind of permit (i.e. “don’t spread manure w/in 10 ft of
                    stream”)
       v.    Who/What can be a “point source”?
                1. Person is NOT a p.s. - US v. Plaza Health
                         a. Reasoning: text is ambiguous, so apply rule of
                             lenity = D not point source
                         b. Dissent: but person is a “controllable” source - all
                             examples listed in definition have element of
                             controllability  impt: dissent now the rule.
                2. Liquid Manure collected by human effort and channeled
                    through ditches that led to stream IS p.s.
                3. Exemptions (§ 402(l)(1)-(2))
                         a. Agricultural Return Flows
                         b. Stormwater runoff from oil, gas, mining
                4. Contract chicken growers? (see CAFO info in notes)
                         a. To deal w/ Tyson getting out of CWA liability for
                             its subcontracted chicken grower, Clinton suggested
                             defining operator of a facility that needs an NPDES
                             permit as operation that has “substantial operational
                             control”; or, if you own the animal, you are operator
                                  i. Compare w/ CERCLA liability for operators

b. Technology-Based Effluent Limitations
      i. Development of Effluent Limitations:
            1. History:
                a. 1972 - EPA trying to figure out how turn tech-based
                    standards into enforceable limits
                b. Du Pont v. Train - EPA can promulgate effluent
                    limits by industry (doesn’t have to promulgate
                    guidelines and then determine limits on case-by-
                    case basis)
         2. Major problem with t-b effluent limitations - because EPA
            has to go through nac for each industry-wide limit, very
            slow = by time published, out of date
 ii. How does EPA set effluent levels?
         1. Nationally promulgated tech-based regulations for industry
            point-source categories (about 500).
                a. EPA does the research 
                b. Conventional pollutants: best control tech’y (BCT)
                          i. Different for different industries because
                             technology different
                         ii. § 304(b)(4)(B) - things to consider in setting
                             limits (not much)
                                 1. cost/benefit - reasonable relation of
                                     cost of particular effluent standard
                                     compared to its benefits
                                 2. age, facilities, other enviro impact
                c. Toxics standards:
                          i. Congress wanted health-based standards, but
                             didn’t work  Flannery Decree
                         ii. Now toxics are “priority pollutants” (same
                             as for conventional except not supposed to
                             consider cost/benefit)
                                 1. Engineering > Science
                        iii. Criticism: underregulated by CWA
                                 1. Underprotective
                                 2. Less than regulated under RCRA
                                 3. CWA underenforced
         2. Indiv. permit writers have some discretion
                a. Mostly can make more stringent if they think
                    regular won’t be enough to meet water quality goals
                b. A little discretion to make less stringent w/variances
                c. States can set Narrative v. Numeric Criteria
iii. Variances - 1972 Act allows EPA “flexibility”  EPA allows
     individual permit applicants to request variance for factors
     “fundamentally different” than those considered by EPA
         1. Chem Manufacturers Assn.
                a. Background: § 301(l) prohibits modification of any
                    requirements for toxic pollutants
                b. EPA can remedy category not drawn correctly in
                    first place. Congress only intended to bar waivers
                               based on economic capability of dischargers or on
                               water quality considerations.
            iv. Application to Industrial Discharges
             v. POTWs and the Pretreatment Program
                   1. § 301(b)(1)(B) - POTW’s regulated separately
                   2. POTWs accept domestic and industrial discharges
                   3. Treatment Procedure:
                           a. Filter  biological treatment  some POTW’s do
                               a tertiary treatment  separation out [hazardous]
                               sludge (goes to landfills - § 405(d))
                   4. Problem: indirect dischargers (into sewers) avoid NPDES
                           a. Normally, NPDES for POTWS only for nontoxics
                           b. § 307 - (now) - pretreatment for indirect dischargers
                               that cause permit violations at POTWs (failure)
                                    i. POTW supposed to develop own standards
                                   ii. Pretreatment requirements - if you discharge
                                        waste X into POTW and you weren’t
                                        supposed to, only violation if whole POTW
                                        violates the permit
                   5. Is pretreatment program working? Basically, no.
                           a. Causation problems
                                    i. Waste gets diluted by rest of POTW
                           b. Loophole - EPA hasn’t regulated all pollutants
                           c. POTW is the primary enforcer
                   6. Is this good policy?
                           a. Community might not want to self-regulate
                           b. POTW doesn’t have $ to pay fines and when they
                               do pay, industrial discharges’ costs spread over
                               taxpayers
                           c. Removal credit - if POTW is treating waste to level
                               below what would be allowed in direct permit
                               between industry and navigable water, industry gets
                               “credit” and doesn’t have to use pre-treat program
                                may be more efficient/cheaper, but doesn’t help
                               industry internalize costs
                           d. Good - only have to regulate from one spot

IV.   Water Quality Based Controls - Regulatory “Safety Net”?
      a. Water Quality Standards - supplement national effluent limitations for
         indiv point sources. Standards prevent water quality of water bodies from
         falling below acceptable levels as a result of numerous point sources
         discharging into waters (even if all in compliance w/nat’l standards)
              i. § 301(b)(1)(C) - requires that NPDES permits include any more
                 stringent limits that are necessary to ensure compliance w/WQS
                 that states/tribes must adopt (§ 303)
      ii. § 303(d) - states must identify waters w/insufficient controls and
          calculate limits on pollutant loadings necessary for such waters to
          achieve WQS’s w/margin of safety
     iii. § 302 - water quality-based controls may be used to prevent
          discharges from interfering w/ attainment or maintenance of
          desired WQ
     iv. (1) Designated Uses and Antidegradation (subject to EPA
          approval)
              1. Purpose for water use; independently enforceable
              2. States can set designated uses for public health, etc.; but,
              3. EPA has interpreted § 303(c)(2)(A) as requiring all water to
                  meet fishing/swimming goal unless “substantial and
                  widespread economic/social impact”
              4. Antidegradation -
      v. (2) Water Quality Criteria (subject to EPA approval)
              1. Degree of protection necessary to attain use; economics not
                  relevant
              2. § 304(a) - EPA must establish WQ criteria as point of
                  reference for States/Tribes
                      a. 1987 amendments  states must adopt criteria for
                           pollutants; criteria for toxics must be numerical (§
                           303(c)(2)(B))
                      b. NRDC v. EPA - although amendment requires EPA
                           to determine whether state WQS meets
                           requirements of Act, EPA can approve more lenient
                           standards if has rational basis
                                i. Scientific uncertainty about detection/effects
                               ii. different acceptable levels of risk
                              iii. What’s behind this? Industry pressure;
                                   politically / economically costly for EPA
b. Impact of Water Quality Standards on Permit Limits -
       i. (1) Application of WQS to Interstate Pollution
              1. Arkansas v. Oklahoma (1992)
                      a. EPA has discretion to require an upstream state’s
                           discharger to comply w/downstream states’ WQS
                      b. Even if Ark had permit program, still subject to
                           EPA approval (although EPA rarely disapproves)
      ii. (2) § 304(1) - Individual Control Strategies for Toxic Pollutants
              1. Just adjusting effluent limits not working (see above)
     iii. (3) State Water Quality Certification (§ 401) SLEEPING GIANT
              1. § 401 requires states to provide WQ certification before
                  permit may be issued. State can attach provisions through
                  federal permit; EPA doesn’t have authority to say to state
                  that it cannot attach conditions
              2. PUD No. 1 v. Wash Dept of Ecology
                           a. WA can impose condition of minimum stream flow
                               quantity of water related to its quality (court
                              reads CWA w/purpose-based contruction). This is
                              more than the typical pollution criteria.
                           b. This gives states an impt. tool to achieve WQS?
           iv. (4) TMDLs - true SLEEPING GIANT
                   1. This is WQS translated into actual control
                   2. Aimed on non-point source pollution (how to do this?)
                   3. § 303(d)(1)(C) - states must identify waters for which
                      limits for nontoxic pollutants are not stringent enough and
                      est. TMDLs for these at level to reach WQ standards.
                   4. Overview of Program:
                           a. State must determine how much of each pollutant
                              the waterway can withstand and still reach WQS
                           b. TMDL set for each pollutant - max amount
                              (w/margin of safety) that water can handle from all
                              sources
                           c. States develop implementation plan  little
                              guidance from statute on what to do
                                    i. Problem: there’s a deadline for state to
                                       develop plan; no deadline for state to
                                       actually do anything
                                   ii. EPA must write TMDL plan if state plan is
                                       either bad or nonexistent (7 th Circ.)
                   5. Structure of Program:
                           a. TMDL = PS (waste load allocation) + NPS (load
                              allocation)
                           b. 2000 EPA rule made this more comprehensive and
                              demanding of states
                                    i. Good - difficult to regulate federally
                                   ii. Good - not overprotective because aimed at
                                       water-quality; complement to tech-based
                                 iii. Bad - relying on states (see class notes).
                                  iv. Bad - Do states have authority to do this?
                                           1. Paselinos - court reads CWA
                                               broadly to say that TMDL program
                                               can be used on rivers that have no
                                               PSs on them (unclear what text says)
                           c. Currently - Bush trying to w/draw TMDL and use
                              new rule

V.   Wetlands Protection and the § 404 Permit Program
     a. Overview of the § 404 Permit Program
            i. Separate permit for discharges of dredge/fill into “nav. waters”
           ii. Permit from Corps (EPA only involved if state writes permit)
                   1. DREDGE: material excavated/dredged from WOUS
                       2. FILL: material used to replace aquatic area w/dry land
              iii. Effect: Not good - Corps usually grants permits; lots of degrading
                   activities exempted (§ 404(f)(1)(A))
                       1. Except, see § 404(f)(2) - exemption not given to activities
                            whose purpose is the conversion from wetland to other use
              iv. TULLOCH RULE - Corps response to developers strategy to dig
                   out wetlands and then refill when dry  excavation activities
                   producing any incidental redeposition of dredged materials,
                   “however temp. or small” require permits; includes “fallback”.
                       1. Only exception: if no degradation
                       2. Basically requires permit for all mechanized operations in
                            wetlands
               v. National Mining Assn. v. Corps (striking “fallback” provision)
                       1. Because incidental fallback represents a “net withdrawal,”
                            not an “addition,” it cannot be a “discharge”
                       2. Concurrence: need either “geographic” or “temporal”
                            separation  look for difference in discharge from what
                            was scooped up
                       3. RESPONSE: Clinton admin rule: EPA going to look at
                            whether anything “moves” (by humans or currents) - if so,
                            it’s more than incidental fallback
              vi. What about “sidecasting”?
                       1. Narrow view: no addition
                       2. Broad view: harm to water quality?
             vii. What about deep ripping? (Borden Ranch case). Covered.
       b. § 404 Permit Process
                i. Developer bears burden of showing no practicable alternative
VI.    Future Directions in Water Pollution Control
       a. Effluent Trading
                i. Problems:
                       1. Measuring difficulties on both buying and selling end
                       2. Problem of new sources easily entering
                       3. Tradibility - what’s the proxy?
                       4. E-value might not be same for same industry in different
                            places (complication of quality of receiving water +
                            complexity of watershed)
                       5. Not well-functioning market  people are poorly informed
                       6. Compliance? Enforcement?
                       7. Time lag between implementation (i.e. planting trees) and
                            full performance
               ii. Benefits
                       1. Something to deal w/ NPS
                       2. Positive externality  creation of habitat
                       3. Prompt new technology
                       4. Can’t trade PBT’s
VII.   Critique:
           a. ECONOMIC - benefits of control vary geographically (pristine v. dirty
              stream); inefficient allocation of costs among industry
           b. General Wins:
                   i. Pollution from point sources way down
           c. General Loses:
                   i. POTW pretreatment program
                  ii. Non-point source pollution (diffuse run-off)
           d. Technology Based Standards
                   i. Disadvantages
                          1. Over / Under-protective: no correlation between amount of
                              discharge and quality of underlying resource
                          2. Doesn’t consider differences in among indiv. industries
                          3. NAC means takes too long and too weak (outdated)
                          4. Doesn’t encourage new technology
                                  a. Puts onus on agency to figure out
                          5. Can lead to concentrations
                          6. BAT standard has been administratively driven to avoid
                              controversy - may be a rulemaking problem
                          7. Disparate treatment of industries based on political clout
                          8. Doesn’t work for toxics
                  ii. Advantages:
                          1. Enforcement - can tell if people are complying
                          2. Geographic consistency - avoid race to the bottom
   VIII.   Potential Changes:
           a. Clinton/Gore - allow co’s that agree to adopt innovative treatment to take
              more time to comply
           b. Effluent trading


CLEAN AIR ACT
  I.   Background
       A. Common law ineffective at dealing with problem:
              1. Tragedy of the Commons (public good)
              2. Causation difficult
              3. Source?
       B. 1963 Act - regulating interstate pollution problems only with consent of
          affected state’s governor
       C. 1970 CAA Amendments:
              1. Goal - achieve air quality levels throughout the country that protect
                  health and welfare (not a source-based approach)
              2. How? Set NAAQSs and develop implementation plans
              3. Sources:
                      i. Stationary - not “point sources”; doesn’t matter whether it
                          comes out your door or your chimney.
                      ii. Mobile - cars, trucks, aircraft
       D. Overall (including 1990 amendments): incredibly detailed (little
          discretion).
              1. Why? Reflects Congress’ dissatisfaction w/agency

II.    Structure (FEDERAL)
       A. NAAQSs - Nat’l Ambient Air Quality Standards (§ 108-109) (health)
       B. Non-Attainment Areas (§ 171-178)
       C. Prevention of Significant Deterioration (PSD) (BACT)
       D. New Source Performance Standards (§ 111) (BACT)
       E. Hazardous Air Pollutant Standards (tech-based)
       F. Mobile sources

III.   NAAQSs - National, health-based, ambient standards
       A. § 108 - EPA needs to identify air pollutants which endanger health/welfare
          and result from mobile or stationary sources:
             1. 6 Criteria Pollutants: SO2, PM (soot), CO, O3, NOx, lead
                      i. Very difficult to get more pollutants added to list  agency
                          has a lot of discretion
                              a. Spring 2003 - e. groups sue to get CO2 added
                                       i. Legal theory - § 108(a) requires EPA to
                                           revise list
                      ii. Lead added after (see Lead Industries)
             2. What is HEW?
             3. What about CO2? - §108(a) requires EPA to revise list of air
                  pollutants to include those which endanger health and are from
                  numerous/diverse mobile or stationary sources
       B. § 109 - EPA set primary and secondary standards for criteria pollutants
             1. Primary - requisite to protect public health; adequate margin of
                  safety
                      i. Sensitive sub-populations  standards must protect those
                          particularly sensitive to effects of pollution (Lead
                          Industries)
                              a. Might be canary
                              b. What about EJ?  only dealt w/ in E.O.
             2. Secondary - requisite to protect the public welfare from any known
                  or anticipated adverse effects (residual risk standard)
             3. Health based standard:
                      i. Nothing in statute or leg. hist. which suggests that Congress
                          required EPA to consider economic or technological
                          feasibility; actually just the opposite: purposely left out.
                          Lead Industries Assn. v. EPA (D.C. 1980), Whitman v.
                          American Trucking Assn. (US 2001)
                              a. NM says that agencies DO look at costs
             4. Review process
                              Agency has lots of discretion - even though CDC
                         has lowered allowable lead levels since Lead Industries,
                         EPA doesn’t have to do anything, but 
                     ii. When EPA published new study in 1982 on SO and how it
                         contributes to acid rain, triggered duty to respond somehow
                         (EDF v. Thomas)

IV.   Implementation (cooperative federalism)
      A. SIPs - State Implementation Plans
            1. § 110 - state figures out levels of criteria air pollutants in each
                ACQR (air quality control region) and then have discretion to
                allocate
                    i. Can be stricter than NAAQSs (§110(a)(2)(B))
                    ii. About 250 ACQRs (w/in SIPs)
                    iii. State has a lot of discretion in deciding what strategy to use
                         and how to allocate burden among sources (stationary) as
                         long as it meets NAAQSs (Train v. NRDC, 1975)
            2. How does state do it?
                    i. What are existing ambient concentrations?
                    ii. Inventory sources; daily emissions
                    iii. Ration allowances through model that will get you to
                         ambient standard
                             a. decide which sources to target
                    iv. Procedural restraints on state discretion:
                             a. Usually set by state regulation; public hearings -
                                      i. Not subject to APA requirements (not
                                         federal regulation)
                             b. Political process

      B. EPA Review
           1. SIP Subject to EPA review and approval + overlays
                  i. Overlays
                        a. NSPS (§ 111(c)) - the state has to develop
                             procedure for enforcing NSPS; applies to all new
                             stationary sources (BACT)
                        b. NESHAPs (hazardous)
                        c. Non-attainment Areas  new source review
                                  i. Federal law classifies areas in the country
                                     that continue to exceed NAAQSs
                                         1. Impose additional conditions
                                 ii. Prevents the addition of new sources in dirty
                                     areas unless those new sources can be offset
                                     or new facility has lowest achievable
                                     emissions rate (or offsets)
                        d. PSD (prevention of significant deterioration)
                             (§7470-7492) - if the area is clean you have to keep
                   it that way; can be different levels of clean (Sierra
                   Club v. Rucklehaus)
                         i. Must use BACT; distinction between PSD
                            BACT and NSPS BACT is that former done
                            on case-by-case basis
                        ii. Areas designated Class I-III
      ii. EPA review cannot include technological/economic
           feasibility (Union Electric Co, American Trucking)
               a. § 110(a)(2) - states can be stricter than feds
               b. States can select whatever mix of control devices it
                   wants; industries w/particular problems may obtain
                   variances as long as state still meets NAAQSs.
               c. § 116 - state law not preempted by CAA as long as
                   it is as stringent as CAA; feds must enforce even
                   more stringent requirements
                         i. Although this outcome may mean more than
                            what Congress intended (state preferences
                            enforced through federal law), opposite
                            would have been jurisdictional nightmare
                            (deciding what it takes to meet NAAQSs as
                            jurisdictional matter)
      iii. Whitman v. American Trucking
               a. Challengers think EPA secretly paying attention to
                   cost  Although NM says that agencies do look at
                   costs, EPA can’t let anyone know about it as factor
                   in choosing between different levels that all meet
                   statutory criteria
               b. E.O. overlay - unclear, but maybe EPA can do
                   internal c/b review as long as its choice is still
                   defensible on statutory grounds. On other hand,
                   after Whitman, maybe not…
2. Federal Role -
      i. Punishment - if no SIP or bad one, feds can sanction
           w/federal highway $
      ii. SIP Calls (§ 110(k)(5)) - EPA can call for SIP revision
           when not reaching NAAQSs (or other requirements)
               a. Virginia v. EPA (challenging EPA SIP call
                   authority)-
                         i. EPA cannot condition approval of SIP on
                            adoption of particular control measure (CA
                            LEV program)
                        ii. Under § 110, EPA has little power over state
                            discretion; EPA cannot tell state how to
                            meet the NAAQSs
               b. But, see Appalachian Power v. EPA (below)
      iii. If not EPA approval w/in 2 years  FIP
      3. What recourse do people have if unhappy with SIPs
             i. State court, lobby state, lobby national, play states against
                 eachother, ask for variance
C. Incentive-Based Techniques
      1. Offsets and Bubbles
             i. OFFSETS - emissions from one source offset by emissions
                 from a source at another location; requirement for obtaining
                 new construction permit w/in nonattainment areas.
                     a. § 112(g)(1)(A) - offsets codified
                              i. Entities don’t have to comply w/stringent
                                 NSR or hazardous pollutant requirements
                             ii. Creates flexibility, not making things worse
                     b. Critique:
                              i. Haven’t been used that much because old
                                 sources unwilling to reveal info about
                                 emissions (regulator could revise NESHAP)
                             ii. Shouldn’t 2 nd facility, if they can achieve
                                 this, do it regardless of 1st?
                                     1.
                                         But, shifts cost of compliance to 1 st
             ii. BUBBLES - applies if new source in non-attainment area
                 has to comply w/special new source requirements. Define
                 whole plant as a “source,” then only “new source” if whole
                 plant increases emissions. Achieves some cost reductions.
                     a. Compared to command-and-control:
                              i. Bubble: [(10)(20)]
                                     1. Plant manager picks [(5)(15)]
                                     2. EFFICIENCY through flexibility
                                     3. Enforcement more difficult because
                                         have to monitor every stack over
                                         time (more cheaters)
                             ii. C-a-C: [(10)(20)]  techn-based emissions
                                 limits in permits
                                     1. Administrator picks [(8)(12)]
                                     2. (2) ENFORCEMENT easier because
                                         administrator understands the
                                         infrastructure
                            iii. Either way, EPA picks enviro goal (not
                                 market)
      2. Trading Programs
             i. Appalachian Power v. EPA
D. Permit Program (§ 501)
      1. Who gets a permit?
             i. “Major” stationary sources - depends on type and amount
                 of emissions, location (air quality)
             ii. Smaller sources in areas not meeting national standards for
                 particular pollutant
                    iii. Other significant operations subject to overlays
              2. Unlawful to operate w/out permit (analogous to CWA § 301,
                 except here, permit is just a summary of your obligations imposed
                 from elsewhere)
              3. Characteristics:
                    i. Consolidates requirements of CAA in one place -
                             a. Clarifies some of confusion around SIPs (for public
                                and regulatees)
                    ii. State imposed, public participation, EPA and judicial
                         review; info collecting requirements
              4. Enforcement:
                    i. What if there’s a mistake in permit?
                             a. Usually no government estoppel when regulator
                                makes a mistake, but
                             b. § 504 Permit Shield may be used -
                                     i. Depends on how you interpret what is
                                         written in shield and what is left out
                                    ii. Critique -
                                             1. Good because reliance (although
                                                 permit not legally binding)
                                             2. Bad because need flexibility

OVERLAYS:

  V.   Regulation of Individual Emitters of Pollutants (OVERLAYS):
       A. New-Source Performance Standards (1970 CAA)
              1. § 111 - permitting program for new sources
                      i. PERFORMANCE STANDARD: Industry-specific, best
                           available control technology for new source w/in
                           designated industry; cost considered
                               a. Technology - NM says very compromised
              2. Who is a “new source”?
                      i. Lot of deference here
                      ii. Once labeled, everything from that “new source” regulated
                               a. Criteria pollutants
                               b. Other pollutants (but EPA underregulates here)
              3. Philosophy - require as much control as you can get w/in certain
                  bounds of cost
              4. Policy - why have this overlay?
                      i. Allow § 111 to carry burden of getting to NAAQSs.
                      ii. Creates consistency across country, prevents states from
                           weakening SIPs in certain categories to attract industry
                      iii. Problems:
                               a. If SIP is working, new plants should have to
                                   comply.
                               b. Circumventing SIP authority
                              i. But allows them to deflect political flak
                      c. Overcontrol?
                      d. Incentive NOT to build new factories, NOT to
                          develop new technology (EPA lazy, relies on
                          industry for knowledge of advanced tech’y)
                      e. Anti-Competitive: barrier to new industry
               iv. Enviro’s:
                      a. Future of better technology
                      b. Maximum protection
                      c. Doesn’t cost new plants as much to put in new
                          technology (as opposed to requiring this of old
                          factories). NAAQSs not enough

B. Regulation of hazardous pollutants (NESHAPs) (§ 112)
      1. Background: Bhopal
             i. While criteria pollutants are more pervasive; hazardous
                  more toxic
             ii. Majority of lead/PCBs in G. Lakes coming from air
             iii. Not a lot of health data on effects of hazardous chemicals
      2. First Wave (1970) - health based standard (now 2nd tier)
             i. Federal emission limitations - “ample margin of safety” to
                  regulate pollutants that may cause or contribute to an
                  increase in mortality (stronger than “adequate margin”)
             ii. No consideration of cost; can put industry out of business
             iii. Failure - EPA only listed 8; didn’t want to make politically-
                  bad decision. Trouble w/data.
      3. 1990 Amendments - technology-based limits
             i. Congress lists 189 substances
             ii. Technology-based limit
                      a. Maximum achievable control technology
                      b. EPA can take into consideration cost/feasibility in
                          setting standards
                      c. Source-by-source (like NPDES, NSPS  makes
                          sense to break down standards to category basis)
                               i. On other hand, if EPA doesn’t get to your
                                  category, you escape regulation entirely
             iii. Not technology-forcing (§ 112(d)(2) and (3))
                      a. For NEW sources - set at level equal to “best
                          controlled similar source”
                      b. For existing sources - (3)(a) - Administrator must
                          set “BACT” at level equal or greater to “the average
                          emission limitation achieved by the best performing
                          12% of existing sources”
                               i. EPA finds the least efficient user of the BAT
                                  and that sets standard (says NM)
                      c. EPA rarely exercises discretion to require more
       4. Critique - supposed to be here or for tech-based in general?
              i. Assurance of environmental goals? Probably no.
                       a. Underprotection / overprotection of health
                       b. Doesn’t account for cumulative or concentrated
                          exposure
                       c. Doesn’t account for airsheds
              ii. From regulator’s perspective
                       a. Have to rely on spot-check
                       b. Who has better access to info - industry or
                          regulator?
              iii. Fairness
                       a. Doesn’t take account of ability of co’s to change
                          technology (profit margins)
                       b. Different kinds of industries may emit same
                          chemicals but are regulated differently
                       c. EPA has a lot of discretion
       5. Residual Risk Standard (the 2 nd layer of protection)
              i. § 112 (f)(2) - EPA must set standard unless risk less than 1
                   in 1,000,000
                       a. National emissions standard for category of sources
                          (no account of regional differences)
                       b. To date, none have been set
              ii. Non-threshold pollutants
                       a. Very difficult to set (at very low concentrations,
                          difficult to document adverse effects - no
                          conclusions)
                               i. Not Zero - politically/feasibly impossible
                                  (plus, statute doesn’t say “no risk”)
              iii. RISK ASSESSMENT (see Vinyl Chloride (1987) case)
                       a. Regulate based on what people worry about?
                       b. Lots of variables
                       c. What about chemicals that benefit h. health?
                       d. Major problem: Congress hasn’t focused EPA
                          (where to start, when to finish).

C. Regulation of mobile Sources
      1. Problems:
             i. Although PM and SO2 mainly from stationary sources,
                 other 4 criteria pollutants from mobile sources
             ii. Per-vehicle emissions way down, but dramatic increase in #
                 of vehicle miles traveled / car.
      2. Roles:
             i. Federal - tailpipe standards, fuel content requirements
             ii. State - transportation control programs
      3. Emissions standards (federal, except CA)
      i. Goal: Original - 90% reduction in emissions of
           hydrocarbons and carbon monoxide from new vehicles;
           extra year for same for nitrogen oxide
               a. EPA periodically revises goal (see notes)
      ii. Baseline: 1970 model cars (problem in that EPA announces
           this in 1969 so all 1970 cars have super high emissions)
      iii. Today: EPA focuses on prototypes + testing methodology
           narrow = companies cheat
               a. Plus, only 60% of cars tested must pass
      iv. Critique: over/under control based on area; problem
           increased - states cannot add stricter standards (except CA )
               a. “Chicken game”  EPA stuck in bind if GM and
                    Chrysler say they can’t meet standard
                         i. Risk of backlash (concentrated costs)
                        ii. There have been postponements
               b. SIPs designed around new car standards; up to feds
                    to take care of this (postponement is big deal!)
                         i. But states still have to meet SIP even when
                            feds haven’t done their part!
      v. CA - 1967 Congress preempts all state emissions controls,
           except CA because of pioneering efforts. Other states can
           adopt CA’s standards (more strict) and some have.
4. Fuel Content (federal, except CA)
      i. § 211(c) - EPA should restrict additives that endanger
           health/welfare  used to restrict lead
      ii. Clean Fuels Provision (two programs):
               a. Reformulated gas
               b. Oxygenated gas
      iii. Inter-governmental problems w/ clean fuels provision
               a. Information Asymmetry- industry says it can’t do it
                    but then immediately complies
                         i. System weighs in favor of regulated
                            industries (they have positive incentive to
                            use the info to discourage regulation)
               b. Perverse Effects Problem - medium-by-medium
                    regulations means that solution to one problem
                    causes another (MTBE increases O2 content but
                    makes people sick)
      iv. CA LEV program (see notes)
               a. Lead emissions problems w/ electric cars
               b. Reliance on fossil fuels for hydrogen cars
      v. Transportation Control Plans (states)
               a. Take care of old vehicles, improve traffic flows, etc.
               b. Inspection/Maintenance:
                         i. Why? 10% of cars = 50% pollution prob
                        ii. Political problems - lots of waivers available
                              c. Positive v. Negative incentives
                                     i. Positive: tax credits for bikes, mass transit,
                                         better bus fuel, city taxes on cars/gas, traffic
                                         flow
                                    ii. Negative: increased parking costs, lower #
                                         of available parking spaces, close streets,
                                         limit urban sprawl.

        D. Interstate Pollution Abatement (§ 126)
               1. § 126(a) - new source which may significantly contribute to
                  pollution in excess of NAAQSs of down wind state
               2. Under §126(b), downwind states can petition for a finding.
                      i. This is triggered by special findings
                      ii. EPA must make finding, but does not have to revise SIP
               3. This only applies to Stationary Sources.
               4. EPA has authority to step in, make rules on third parties directly.
               5. Appalachian Power v. EPA
                      i. During SIP call, EPA established cap and trade program for
                          NOx (directly implemented on sources). States complain
                          that cooperative federalism requires EPA to give states
                          opportunity to respond to SIP call. Court says no: state’s
                          power to meet the NAAQS “not absolute in the face of §
                          126, which contemplates” some direct regulation by EPA.

VI.     OTHER OVERLAYS:
        A. New Source Review
        B. Attainment: Prevention of Significant Deterioration

VII.    Mobile Sources: technology-forcing venture
        A. What’s the program? Where does this fit in?
        B. Federal program
               1. Fuel content requirements
               2. Emissions limits (except for CA)
        C. State programs
               1. Traffic control/management
               2. Gas taxes

VIII.   Transboundary Air Pollution
        A. Interstate Criteria Pollutants (see notes)
               1. § 110(a)(2)(D) - SIP needs to assure that won’t significantly
                   interfere w/downwind state’s ability to meet NAAQSs
                       i. § 126 - downwind state can petition
               2. Interstate ozone pollution - § 184
                       i. EPA couldn’t use this provision to implement motor
                           vehicle emission standards in Virginia v. EPA because
                   vehicle decisions are left to states (§ 202)  could use for
                   other purpose
              ii. American Trucking - stationary source controls for NOx
                   (ozone) okayed.
B. Interstate Acid Deposition
       1. Background: regional problem - emissions traveling from one area
          of country to another. Caused by sulfates (not criteria pollutant)
          mixing with water and raining and nitrates. Acid rain doesn’t
          directly harm h. health; sulfates do.
              i. Prior to 1990, NAAQSs and SIPs don’t remedy problem
                   because (1) measuring SO2 at ground (no indication of
                   problem), (2) interstate problem, (3) Ambient Air
                   Concentrations not accurate predictor of Acid rain
       2. Goal of program: reduce precursor pollutants (mainly SO2)
       3. Program:
              i. National cap on emissions, trade permits (no property right)
              ii. Regulatory Targets:
                       a. Phase I: 111 “BIG DIRTIES” get max allowable
                           allowances; total ceiling less than previous sum of
                           these utilities
                                i. Penalties: $ and/or have to offset
                       b. Phase II: all power plants in lower 48; initial
                           allocations further reduced.
              iii. Success  overcompliance (big dirties banking allowances
                   for Phase II). 100% compliance.
              iv. Why Successful?
                       a. Economics:
                                i. Acid rain works well in trading regime
                                   because reductions are of relatively constant
                                   value over time and space
                               ii. Nationwide market (already available)
                              iii. Overestimated cost of compliance
                              iv. Low prices for allowances
                       b. Other factors:
                                i. Easy to make initial changes - switch to low-
                                   sulfur coal + scrubbers (not tech-forcing)
                                        1. Transportation costs low
                                        2. Overestimated costs
                               ii. Companies all named in statute - easy to
                                   monitor and co’s knew they were going to
                                   be monitored
                              iii. Required to install “continuous monitoring
                                   equipment” (no cheating)
                              iv. Incentives for overcompliance
              v. 7th says investments to comply w/program trigger NSR
                    vi. Excess emissions penalty (§ 411(a-b)) - $ + offset the
                         following calendar year
                    vii. Interplay w/ SIP:
                             a. CAA not internally consistent; but §403(f) - nothing
                                 in trading program should affect SIP compliance
                             b. Distinct purposes:
                                       i. Acid rain - long distance problem
                                      ii. Ground level air pollution - SIP
                             c. Problem: artificially limiting the market
                    viii.        Critique:
                             a. Increases emissions (3M example) (598)
                             b. Hot spots, EJ
                             c. Localized burdens (see Alliance for Clean Coal v.
                                 Bayh - dormant CC stops Midwest states from
                                 favoring high-sulfur coal over other options for
                                 utilities to reach compliance)
                             d. Not technology forcing
                                       i. Low-sulfur coal option
                                      ii. Allowances are cheap (little incentive for
                                          tech developers to put $ into r/d)
                                     iii. Mixed signals: although possible
                                          economically efficient, industries don’t want
                                          to trigger NSR (similar to offset problem)
                             e. Best case scenario:
                                       i. Limited # of entities in same industry
                                          (monitoring and info about technology easy)
                                      ii. Quality of medium - enviro value of each
                                          allowance is equivalent
IX.   Critique
      A. Criticisms:
             1. Extremely complex
             2. Not accounting for cost (or is EPA actually? See American T.)
             3. Too much agency discretion? (after original statute)
                     i. DELEGATION QUESTION (re: PM and ozone standards):
                            a. American Trucking - D.C. Circ. concerned that
                                there is no “principle” saying how much is too
                                much; worried about the cost and wants EPA to
                                explain itself (why did it choose this line) 
                            b. American T. (S.Ct.) - overruled. An agency cannot
                                cure an unlawful delegation by adopting a limiting
                                construction of the statute, but Congress has
                                provided adequate guidance here and EPA can fill
                                in the blanks w/its discretion
                     ii. But, do we want judicial supervision?
                            a. lack of expertise and political accountability
                                b. small number of parties (as opposed to open
                                   decision)
                                c. Long term effect on agencies  do you want to go
                                   through the work in the future to make a rule when
                                   a court could just strike it down?

                 4. Krier - should be a regional approach
                        i. Because so many variables in different regions (health,
                            technology, weather, aesthetic), to require adherence to
                            same standard everywhere inevitably imposes control costs
                            greater than the benefit from reduced pollution. Only
                            defensible if it’s too costly to set regional standards.
                                a. BUT - states can take into account some of these
                                     differences
          B. Benefits of National Air Program
                 1. States might compete  no race to the bottom
                 2. Air travels
                 3. Do we really want to suggest that the health of some people in
                    some areas of the country is worth more than others?
                 4. Difficult to set standards for each state
                 5. Want freedom of movement - everyone should be able to live
                    everywhere; hard to restrict the use of air
                        i. We can protect everyone!
          C. Why health and not tech- or source- based? Why no consideration of
             cost?
                 1. Concern about health: worth the cost
                        i. How do you calculate the value of lost lives?
                 2. Dealing with scientific uncertainty through adequate margin of
                    safety
                 3. Technology forcing (we just put someone on the moon!)
                 4. Concern about industry pressure on agency
               SIPs can consider cost 
                        i. Cynical view - Congress trying to put accountability on
                            states
                        ii. Positive - Congress letting states make decisions about
                            where to put burden; more efficiently suiting state needs

Questions:
If a client (electric utility) comes to you asking about SO2pollution, what should you
ask them about?
         - NAAQSs
                o See what state law provisions are in the SIP
         - Acid Rain trading program (Title IV)
         - New source standards if they have any new sources
         - New source review for non-attainment areas
                o PSD Areas - prevention of significant deterioration
        -   [only other thing that we looked at was hazardous pollutants  that
            doesn’t apply here]


RCRA
  I.        Important Provisions:
            a. RCRA § 1004(3), (5), (12), (27), § 3002(a), § 3003(a), § 1002(a)(4),
               (c)(2), § 1004(27), (5), § 3001(1)
  II.        Overview:
            a. History:
                     i. Pre-1980’s, most concern about waste focused on litter (aesthetic)
                        and not hazardous (toxic)
                    ii. 1976 RCRA - response to expansion of petrochemical industry and
                        toxic industrial waste  CRADLE-TO-GRAVE (prospective)
                        regulation of hazardous waste. Works in tandem w/CERCLA.
                  iii. CERCLA deals with remediating past contamination by imposing
                        SL for cleanup of releases of hazardous substances
                   iv. 1984 RCRA amendments - detailed statute, strengthen RCRA
                        implementation; use land disposal as last resort
                            1. Outcome: many TSD’s close
                    v. Compare to CWA and CAA (medium-forced); RCRA and
                        CERCLA are “pollutant-forced”
            b. Purpose:
                     i. Protect human health and the environment through focus on waste
                            1. Make land disposal of wastes far safer
                    ii. Technology forcing
                  iii. Waste reduction; encourage recycling
                   iv. Minimize direct regulation of production processes
                    v. Maintain substantial state responsibility
            c. Basics of Structure:
                     i. Two focuses of act: wastes + actors
                    ii. Subtitle C  hazardous wastes
                  iii. Subtitle D  non-hazardous wastes
                   iv. System for identifying and listing hazardous wastes - 502 toxics
                    v. Cradle-to-grave tracking system + regulate the grave
                            1. Everyone gets an ID#
                            2. “Manifest” - generator needs to get this back when toxic
                                gets to grave
                   vi. Prescribed standards for generators, transporters, and operators
                            1. Detailed requirements, get permits
                            2. Very expensive to become a TSD
                  vii. Land Ban - land disposal least approved
                            1. Force development of better treatment technology; must
                                assure EPA for as long as waste is hazardous, it won’t
                                migrate (i.e. in water)
                 viii. Cooperative Federalism - permit program delegated to states
             ix. Backward looking part (§ 7003 - resembles CERCLA)
                    1. “Corrective Action” - permit renewal only if clean up old
                        waste
                    2. If imminent threat, EPA can get injunction
                    3. § 7002 Citizen suits  but can’t force agency to enforce
              x. Three main questions:
                    1. Is it a RCRA waste?
                    2. Who are regulated actors?
                    3. What are specific obligations of RCRA actors?

III.   TRIGGER ONE: RCRA REGULATES “WASTES”:
       a. Solid waste = basically everything except uncontained gases (§ 1004(27))
               i. Subset - HAZARDOUS WASTE
       b. Exclusions: (§ 1004(5))
               i. Why have exclusions? Congress doesn’t want to interfere (here)
                  w/production processes
              ii. Domestic sewage that goes to POTWs- § 1004(27)
                      1. Problem: RCRA covers more chemicals than CWA
                      2. Good: difficult for regulated entities to deal w/overlapping
                          statutes
                      3. Congress wanted this treated differently
             iii. Recycled materials - Depends on subjective intent of person
                  transferring and intrinsic quality of thing. EPA trying to draw
                  distinction between legit and sham recycling
                      1. Whether used as ingredient or substitute to make something
                          for product  not SW
                      2. Whether returned to original processes  not SW
                      3. Whether part of “waste disposal problem”  SW
                      4. Cannot accumulate speculatively (AMC II)  SW
                      5. No “use constituting disposal” (put directly on land or
                          burned)  SW
                              a. Exception: pesticides/fertilizer
                      6. Whether intrinsically waste-like  SW
                      7. Market-price solution? (i.e. if it would cost $ to dispose of,
                          then waste) EPA says too much fluctuation in market
                              a. Plus, just because someone is willing to pay for it
                                   doesn’t mean that it is not a waste.
                      8. Agency view (in regs): certain uses are so much like waste
                          disposal and have same harms, EPA going to treat them as
                          waste disposal to take care of problem.
       c. American Mining v. EPA - EPA’s does NOT have authority to regulate
          secondary materials reused w/in industry ongoing production process as
          “waste”
               i. TEXT: solid waste = discarded material
              ii. PURPOSE: help urban communities deal w/waste
              iii. Waste = materials discarded because facilities have disposed of,
                   abandoned, or thrown them away
              iv. Congress intended “discarded” to have everyday meaning
               v. Dissent: defn. is functional. Congress was concerned about
                   hazardous waste coming into contact w/environment.
              vi. Extreme reading of AMC: if you can reuse byproduct, then not
                   “solid waste”  but, see AMC II.
      d.   AMC II - EPA can regulate sludge from wastewater stored in surface
           impoundment if it may sometime in the future be reprocessed for metals
           recovery.
                i. Potential reuse does not prevent agency from classifying as
                   “discarded”
               ii. Exception only extends to immediate reuse.
      e.   API v. EPA - overrules EPA determination that materials inserted into
           metals reclamation process cease to be solid wastes when arrive at
           reclamation facility because no longer “discarded”
                i. Distinction: when discarded, not whether process extracted
                   valuable products from discarded material
                       1. Compare to other recycling questions…
      f.   But, Assn. of Battery Recyclers v. EPA - distinguishes API and AMC II 
           temporary storage of secondary and residual materials does not constitute
           “discarding”
      g.   Problems of regulatory targets:
                i. Congress worried about enviro risk / waste disposal, but goal to
                   stay out of production and encourage recycling
               ii. Results in enviro discrepancies:
                       1. Ex: battery recycling - used batteries “substitute” for new
                           material as source of metal  not regulated

IV.   TRIGGER TWO: RCRA REGULATES HAZARDOUS WASTES
      a. If hazardous  Subtitle C.
      b. Defined:
               i. § 1004(5) - HW defined
      c. § 3001 - EPA must determine what is “hazardous”:
               i. if it is a listed HW
              ii. if it has the characteristics of a HW
      d. CHARACTERISTIC WASTES
               i. Criteria:
                       1. Ignitability, Corrosivity, Reactivity, Toxicity (is what
                            comes out on list elsewhere)
                       2. Criteria based on measurability and testability (arguably,
                            not as important as health/safety)
                       3. No precautionary principle applied here
              ii. Each regulated entity must test own wastes
             iii. Contrast to CAA where no regulation unless listed
      e. LISTED WASTES:
               i. Agency has discretion whether to list something
              ii. Mixture Rule - non-haz waste + haz waste = hazardous
             iii. Derived-from Rule - wastes derived from treatment, storage, or
                  disposal of listed waste deemed hazardous
             iv. Are mixture and derived-from rules any good?
                      1. Good -
                              a. Still enviro threat
                              b. Prevent co’s from saying X1 + flour isn’t listed
                      2. Bad -
                              a. Overinclusive - some of these are far less toxic than
                                  others excluded from regime
                              b. Underinclusive - majority of haz waste excluded
                                  (mining, household, waste in public sewer, petrol)
              v. 2001 - EPA narrowed scope of mixture/derived-from rule to better
                  match risks
             vi. Exclusions:
                      1. Nuclear byproduct  Atomic Energy Act
                      2. Energy development  Surface Mining and Rec Act
                      3. Agricultural Waste used as fertilizer
                      4. Household waste (§ 3001(i)
V.    Incinerator Ash and Household Waste Exclusion
      a. Background to City of Chicago - Subtitle C exempts incinerators that burn
          non-hazardous and household wastes  generates ash (not listed).
          Presumption was that ash wasn’t characteristic waste  EDF tests and it
          shows characteristics. Incinerators lobby for Congressional protection 
          Congress passes § 3001(i) as “clarification”. First, EPA interprets new §
          3001(i) as including incinerator ash; then changes mind and says that the
          exemption does NOT include an exemption for ash.
      b. City of Chicago v. EDF - the § 3001(i) exception for “resource recovery
          facility” does not extend to the ash generated during incineration.
               i. Although not a C TSDF, incinerator could still be a generator
              ii. Reasoning:
                      1. TEXT: doesn’t mention ash or being “generator”
                      2. Step 1: not too ambiguous (Court doesn’t address EPA flip-
                          flopping)
             iii. Outcome:
                      1. EPA must regulate incinerator ash as hazardous waste
                          whenever it shows characteristics of haz waste.
                      2. Affects both mixed waste and household-only incinerators
             iv. Concern: if we take public choice view of legislation, then doesn’t
                  make sense that Congress did nothing to help incinerators because
                  they’re the ones who lobbied; when read this way, statute does
                  nothing to help incinerators.
                      1. But, should we assume that SIGs always win?

VI.   WHAT ARE REGULATED ENTITIES SUPPOSED TO DO?
        a. For SOLID waste, need to figure out if hazardous or not
                i. If not listed, look for characteristics
               ii. May try and avoid testing (getting out of the rule)
              iii. Subtitle D
        b. For HAZARDOUS waste, need to notify EPA, package, locate a
           transporter, wait for your manifest to come back
                i. Subtitle C
               ii. Generator responsible to make sure waste correctly disposed of
              iii. Generator’s incentives: reduce waste, reduce extent to which it is
                   hazardous, reuse hazardous materials, make sure waste doesn’t
                   exhibit characteristics of hazardous waste
                       1. Bad incentives: ignore characteristics, sham recycling -
                            avoid expense of disposal, organized crime involvement
              iv. Difficult for transporter to figure out whether hazardous
        c. Incredibly detailed regulations for TSDs
        d. Incredibly costly process to become TSD
                i. Permit and facilities very expensive

VII.    Who are regulated actors?
        a. Generators
        b. Transporters
        c. Owners/operators (TSD) (major focus)

VIII.   SUBTITLE D: disposal for non-hazardous waste
        a. Program:
                  i. Much less detailed
                 ii. Financial assistance to municipalities
        b. Problem: still pretty dangerous!
                  i. Groundwater contamination
                 ii. There is hazardous waste in there (households, small generators)
                iii. Wastes that are similar to listed wastes but haven’t been listed yet
        c. Response: EPA addressing facilities that may receive haz wastes (many
            landfills close)
IX.     Critique
        a. Criteria for Characteristic wastes not based on health/safety (under/over
            protective)
        b. Politically motivated exclusions (so how could CERCLA even help this?
            If you are exempted (i.e. through recycling exception of RCRA can you
            still be liable under CERCLA?)
        c. Major Loopholes (see Stoll article)
                  i. Materials disposed into public sewer, industrial discharges subject
                     to CWA, residue from fossil fuel combustion, some mining waste
                 ii. To avoid, can redirect to sewer/point source, change manufacturing
                     process so doesn’t exhibit characteristic, apply for delisting, export
                     to Canada, recycle
        d. Distinction between C and D really should be one of degree
CERCLA
  I.   Important Provisions:
       a. CERCLA § 101(14), (22)-(25) (42 U.S.C. § 9601); CERCLA § 104(a)(1),
          106, 107(a), (b), (j) (42 U.S.C. § 9607); CERCLA § 121(a), (b), (d) (42
          U.S.C. § 9621)

   II.    Overview:
          a. History
                  i. Response to Love Canal (isn’t everything?)
                         1. Adaptation of common law (SL for abnormally dangerous
                             activities) but better
                                 a. Note: when court can’t figure out something under
                                      CERCLA, it looks to common law (see Aceto)
          b. Purpose
                  i. Deterrence  creates “army of quasi-regulators” in lenders,
                     insurers, etc.
                 ii. Theme: Polluter Should Pay.
                iii. Protect human health and the environment, cost-effective
          c. Structure
                  i. Contrast to RCRA 
                         1. RCRA very detailed; prevention oriented
                         2. CERCLA broad; response oriented
                 ii. National Priority List
                iii. Provisions for removal and remediation
                iv. Superfund, Joint and Several SL
          d. What do people really care about?
                   i. Do we make the list and get federal $?
                  ii. What remedy is precisely selected?
                           1. Under § 107, remedy has to be “cost-efficient” (which could
                              be challenged by company that has to pay)
                 iii. If you are liable under the statute - you’re going to have to pay for
                      it (average cost - $30 million)

   III.   STRUCTURE/PROVISIONS:
          a. When does CERCLA apply? (§ 104)
                 i. Release (§ 101(22)) (no de minimis exception)
                ii. Into environment
               iii. of Hazardous Substance = RCRA+
                        1. Excludes things not “disposed of” (i.e. fertilizer) and oil,
                           etc.
                        2. Own list + other statutes’ lists
               iv. You fall into category of responsible folks
                v. Government has incurred “response costs” (p.298)
          b. Who is responsible (§ 107)? (also see “owners” below)
                 i. Owners/Operators of a “facility”
                        1. Current
                        2. Former @ time of disposal
              ii. Transporters
             iii. Generators
      c. What can EPA do?
               i. When state calls EPA (p.318)
                      1. preliminary assessment and inspection
                      2. serious cases scored on haz. ranking system HRS (§ 105)
                      3. if high enough, put on NPL
                      4. RI/FS (remedial investigation or feasibility study)  record
                          of decision (what to do)
              ii. For sites on NPL, EPA can take “response action” (§ 104)
                      1. Short-term: removal
                              a. Capped, established wall under site (in ground)
                      2. Long-term: remedial (standards - § 121)
                              a. Treat groundwater (pumping and treating)
                              b. Dredged out sediments
                              c. Remedial preferred over rek
                      3. Both
                      4. After gov. does cleanup, can seek reimbursement (§ 107)
                              a. But EPA has to front the money  fund from oil
                                   companies hasn’t been renewed
                      5. Alternative: § 106 - EPA orders immediate clean up.
                          §25K/day for every day that you don’t clean it up.
                          UNILATERAL ADMINISTRATIVE ORDERS (UAOs). This
                          is what is used the most. (usually for those on NPL)
                              a. Don’t get right to appeal right away
                              b. Penalties very stiff
      d. What can other people do?
               i. Private parties have a right of action under CERCLA for any site
                  that has a release of a hazardous substance (no threshold
                  amount)
                      1. You can spend your own money to clean up and then sue
                          to get reimbursed (§ 107(a)(4)(B))
                      2. Doesn’t have to be on the list
              ii. Natural resource damages - $ towards restoring damaged
                  resources (and agencies/groups that do this are not EPA)
             iii. Note: § 103(c) - if you are an owner, you need to notify EPA
IV.   LIABILITY REGIME:
      a. Strict
               i. Current owners might be liable even if no involvement
              ii. § 107(b) narrow defenses (God, war, etc.)
             iii. § 107(j) Federal program exemption (but not necessarily for other
                  programs) (if created under federal program)
             iv. § 128 (new) State program - if being cleaned up by state
      b. Joint and Several
               i. Defn of “liable” (§ 101(32))= standard of liability under § 311 of
                  CWA (strict, joint and several)
              ii. O’Neil v. Picillo (1st, 1989)
                      1. Only exception to j/s liability is if D can show that the harm
                          from her stuff is divisible (rarely can show because of
                          characteristics of hazardous wastes)
                    2. Policy: If uncertainty, Congress wanted those who are
                        partly culpable to bear the burden, instead of taxpayers;
                        encourage D’s to keep info throughout disposal process;
                        encourage settlement
     c. Acts retroactively
     d. Relaxed Causation Requirements
             i. All you have to show is release and that you spent money
                cleaning it up
            ii. No finger printing necessary
           iii. D has burden of rebutting presumption of causation
     e. Personal injury - not recoverable under CERCLA (although statute
        extends the SOL until injury “is or should have been” discovered (p. 315)
     f. Contribution claims (if you litigate and lose and there are others
        responsible for your portion) - GORE factors:
             i. Distinguishability of contribution
            ii. Relative fault (culpability)
           iii. Amt. and toxicity of hazardous substances
           iv. Degree of involvement and care exercised
            v. Did you cooperate?

V.   OWNERS
     a. Current and former (at time of disposal) liable
     b. Contrast to NJ Environmental Cleanup Responsibility Act
            i. EA must be performed every time industrial property sold  that
               way, no question about who’s responsible
     c. Problems:
            i. Innocent purchasers (§101(5)) -
                   1. NY v. Shore Realty Corp (1985)
                           a. You are liable as an “owner;” doesn’t require
                              causation (SL)
                           b. Structure - affirmative defenses
                           c. Policy - otherwise, loophole in incentive to quickly
                              sell hazardous site (and no liability); maybe court
                              was motivated by fact that Shore got it cheap?
                   2. Amendment after Shore - “innocent owners” - if you
                       acquire w/out “constructive knowledge” that there were
                       hazardous substances and took foreseeable steps to find
                       out you’re not liable - (§ 107(b)(3))
                           a. Relieves party of liability for 3rd party releases as
                              long as no contractual relationship, due care, took
                              precautions
                           b. “No constructive knowledge” requires landowner to
                              do “all appropriate inquiries”
                                    i. Latter undefined - courts have looked at
                                       different factors; new legislation explains
                                       (§223(2)(B))
                   3. Should we hold innocent owners liable?
                           a. YES -
                                    i. Want prop owners to have strong incentive
                                       to investigate - way of informing gov.
                                   ii. Got deal on price
                                     iii. Expediency (they’re there)
                                    iv. At common law you would still be
                                          considered a nuisance (public nuisance?)
                              b. NO -
                                       i. Unfair - pre-CERCLA, no notice that parties
                                          are buying into this huge liability
               ii. Past Owners
                      1. Controversial whether “owner” “at the time of disposal”
                          covers owners who didn’t do anything except have title
                          when waste was continuing to leak onto land
                              a. Policy incentive - encourage people to clean stuff
                                 up because it could get worse
              iii. Bank foreclosure contaminated land (§101(20))
             iv. Banks as title holder on mortgage
                      1. Exception under new “brownfields” legislation

VI.    OPERATORS
       a. Text: “one that operates”
       b. Policy:
               i. Operator is making decisions at site  internalize cost of choices
              ii. Best positioned to monitor
             iii. Operators usually have “actual control” over decisions that relate
                  to pollution
       c. How much “control” do you need to have?
               i. US v. Bestfoods
                      1. As owner - only when the “corporate veil” may be pierced
                          may a parent corp. be held liable as owner for its
                          subsidiary’s actions
                               a. Piercing the veil - was the form for fraud?
                      2. What about as operator? Parent corps may be liable as
                          operators - issue is what constitutes “direct parental
                          operation”?
                               a. Look at relationship between parent and facility, not
                                  parent and subsidiary (290)
                               b. Has to be more than the “normal” involvement in
                                  the running of the subsidiary even if employee of
                                  parent is in management of subsidiary
              ii. Problems:
                      1. not clear that there is a federal veil piercing standard
                      2. Court motivate by settled expectations of limited liability
                      3. CERCLA liability itself won’t pierce the veil
                      4. Creates incentives to form subsidiaries
       d. Small Business Liability Protection (W)
               i. Businesses that generated less than 110 gallons or 200 pounds of
                  hazardous waste
              ii. Municipal solid waste
                      1. If you’re a small business or household or non-profit
                          dumping your stuff at a municipal waste facility  not liable

VII.   TRANSPORTERS (§ 107(a)(4))
       a. Transporter liable if played some part in site selection (p. 294)
        b. Can be a transporter even if just moving materials around 1 site

VIII.   GENERATORS (§ 107(a)(3)
        a. Includes any person who “arranged for” the treatment or disposal of a
           hazardous substance at the facility
                i. Government has light burden (no fingerprinting): show generator
                   shipped hazardous substances to facility, hazardous substances
                   like those of the generator found at facility + release at facility
                   (p.296).
        b. Note: This is the furthest stretch from common law  creates huge
           incentive for generates to chose transporter/end facility w/care
        c. Two complicated issues:
                i. Subcontracting Production
                       1. US v. Aceto Agricultural (8th, 1989)
                               a. Court guided by common law - company which
                                   contracts out part of its production still liable as a
                                   generator when that subcontractor disposes of
                                   waste while making product
                               b. Although somewhat analogous to “operating,”
                                   “generator” liability dealt with differently at common
                                   law (p.300)
                       2. How do you determine liability?
                               a. Waste-making is inherent in the process (if they
                                   had done this themselves they would have created
                                   waste)
                               b. Aceto maintains ownership of materials while
                                   they are mixed (like Tyson CAFO) - opportunity to
                                   control waste disposal
                               c. Court willing to look beyond what Aceto’s “intent”
                                   was (although other courts have considered
                                   subjective intent - Amcast (p. 303))
                               d. Highly fact intensive inquiry - what did the party
                                   know (or what should they have known) about
                                   disposal?
                       3. Policy: internalize costs of production
               ii. Sale of Recycled Products
                       1. Analogous to RCRA - look at intent of seller
                       2. Criteria to look at codified in § 127

IX.     CONSTITUTIONALITY
        a. US v. Olin (11th Cir., 1997) upholds CERCLA after attack based on
           commerce clause (post-Lopez) and retroactivity (post-Landgraf) grounds
                 i. Substantial effects
                ii. Although no explicit statement in the text re: retroactivity,
                    structure, purpose and legislative history all point that way (p. 274)
        b. 11th Amendment - states have immunity from private suit in federal court
           (if don’t waive sovereign immunity) (p. 294)
                 i. Not big deal because usually suing cities or municipalities

X.      CRITIQUES:
        a. Pressure on CERCLA to water it down
       i. Exemption for banks
b. VERY powerful
       i. Liability triggered by release (not necessarily threat to health)
      ii. Enforcement - government has minimal burden to show liability
     iii. § 106 UAO order
c. PRO-CERCLA:
       i. Deterrent?
              1. People will avoid producing hazardous waste and will be
                   more careful
              2. Arguably more efficient than RCRA  parties can figure
                   out the cheapest way to do it themselves
              3. Less administrative state problems?
      ii. Encourages parties to settle
     iii. Repeal of liability would undermine future environmental laws
          (companies would just lobby for change and keep on pollutin’)
      iv. Prospectively, does it make sense to impose liability going forward
          as opposed to relying exclusively on command-and-control?
              1. Improves info asymmetry - private parties know better
                 what wastes they have and how to deal with them
              2. Because land and soil pollution are often concentrated,
                 CERCLA works w/in this context
              3. Good incentives; allows for flexibility - similar to torts!

d. ANTI-CERCLA:
        i. over-deterrence: joint / several liability means there’s inefficiency -
           people bearing cost of something that they didn’t create
       ii. Administrative and litigation costs  why should those costs be
           carried by industries? Since companies are going to spread costs
           anyways, why not spread through taxpayers?
      iii. Brownfields problem  fear of liability has left land abandoned
      iv. From industry perspective:
               1. P needs up front money to sue (and maybe won’t have it)
               2. How are you going to handle potential CERCLA liability?
                       a. cost of clean up v. risk of getting caught
               3. Move waste disposal abroad
               4. Create subsidiary
               5. All or nothing (for at least NPL)
       v. Clean-up standards:
               1. Cost isn’t necessarily buying cleanup. Infeasibility
                   problems.
               2. EPA has come under attack from both sides - either too
                   conservative w/method or too much money spent compared
                   to cancer deaths avoided (problem of tough decisions being
                   pushed down the bureaucratic chain)
               3. Should consider land uses (pave it over)
                       a. But what if land-use changes?
               4. Problem of unknown health risks
      vi. Transaction costs - too much $ spent on litigating CERCLA!
                      1. But maybe this is an incentive not to dump
          e. ALTERNATIVES?
                i. Publicly funded

   XI.    RESPONSES:
          a. Brownfields Legislation
                   i. Purchasers who knowingly buy contaminated property, if they take
                      reasonable steps to stop future releases, aren’t liable under
                      CERCLA
                          1. You may have to let EPA clean up (and can’t get windfall)
                  ii. Good or bad? Good - people don’t have incentive to hide; bad -
                      ignore health issues? Encourage people to sell dirty property?
          b. Releases Subject to State Program Legislation (§ 128)(W)
                  i. Purpose: parties want closure and states want autonomy
                 ii. Legislation: if you have a release and it’s handles under a state
                     program, total federal liability shield
                        1. Exceptions: state request, interstate or leaking onto federal
                            property, still really bad (they’ll never exercise this one for
                            political reasons, though)
                iii. Problems:
                        1. Race to the bottom (should we trust states?)
                        2. Environmental Justice
                        3. State programs aren’t subject to federal approval (not like
                            CWA)
          c. Innocent Owner Defense (see above)

STANDING AND CITIZEN SUITS
  I.   Standing
  II.  Citizen Suits
       a. Three types:
                i. Citizens acting as private AG’s (“citizen enforcement action”)
                        1. CWA - citizen = any person adversely affected
               ii. Force officials to perform mandatory duties
              iii. Review the legality of agency actions
       b. Basic Requirements:
                i. 60-day notice provision
               ii. Gwaltney - allege that D “be in violation” (no jurisdiction over
                   citizen-suits for wholly past violations)
              iii. Standing
       c. Purpose:
                i. Issues because doesn’t apply to wholly past violations
               ii. What’s the incentive for regulated entities: if no remedy for past
                   violations, incentive is to wait to comply until you get notice
       d. Gwaltney - does the court have jurisdiction over “wholly past violations?”
                i. Burden on P to show continuing violation or likelihood of sporadic
                   violation (when violation ceased)
               ii. Reasoning: Is S. Ct. confused about what citizen suits are for?
                         1. Abate or Deter? (court saying it about abatement)
                iii. Outcome #1: Congress uses different language for citizen suits
                iv. Outcome #2: Companies don’t comply until they get notice.
                     Unclear about whether P can recover economic benefit that
                     company received from non-compliance
          e. Steel Company Case
                  i. No standing because co. came into compliance after notice and
                     before suit.
                 ii. Hook here: redressabiliity. All of money going to treasury so P’s
                     injury can’t be redressed (court only looking at abatement)
          f. Friends of the Earth v. Laidlaw - step back from Steel Company
                  i. Redressability not a problem because fines can be a deterrent (this
                     is what congress though when it passed the CWA); but can it really
                     redress?  need to show that there is potential for future
                     violations
                 ii. Implication: court rejecting implicit assumption that all citizen
                     suits are for is to abate violations. Also abou being a fuller
                     participant in environmental protection by providing deterrence.
                iii. Two major issues:
                         1. Conserve judicial resources
                         2. Treatment of injury-in-fact: majority treats this as being an
                             injury to the P and not an injury to the environment (but
                             allows it to be broader on the merits).
                                  a. Fear, knowledge, etc. = injury
                                  b. Institutional question: who determines injury to the
                                       environment? If court stops people at injury-in-fact
                                       based on personal harm, then it is necessarily
                                       taking away from Congress the ability to protect the
                                       environment in ways which don’t implicate human
                                       harm. But this isn’t what Congress had in mind for
                                       citizen suits. Laidlaw means standing even when
                                       no environmental harm, and sometimes no standing
                                       when actual environmental harm.
          g. Outcome:
                  i. Trend to limit citizen standing halted after Laidlaw.
                 ii. After Laidlaw, probably any neighbor can sue.
                iii. Gwaltney (deterring ability of only applies to some statutes
                     (because of leg. history)
                iv. Steel Company applies to all cases (because it’s about the
                     Constitutional requirements) - no standing for wholly past
                     violations.

REMAINING QUESTIONS:
  (1) if RCRA covered all possible hazardous wastes, and EPA was flawless in its
      enforcement, would we need CERCLA?
  (2) Questions about piercing the corporate veil
(3) Generator CERCLA liability + CERCLA liability problem on 305
(4) Skim 322-330.
(5) Figure out water-quality based controls
(6) Major problem w/ Cooperative Federalism - EPA bows to state pressure
(7) Water Pollution Problem on p. 733
(8) Over and underinclusive statutes (poor fit between goal and regulation)
       a. Ex: Borden Ranch (deep ripping)
(9) Effluent trading v. Air trading (and what about that ESA trading?)