1 ENVIRONMENTAL LAW OUTLINE (II) SOURCES OF ENVIRONMENTAL LAW 2 a. COMMON LAW 2 b. MAJOR LEGISLATION 3 c. REGULATORY STRUCTURE IN CALIFORNIA 4 d. JURISDICTIONAL ISSUES 5 e. THE REGULATORY PROCESS 5 (III) REGULATION OF HAZARDOUS WASTE 7 (IV) WATER POLLUTION CONTROL 17 a. Legislation 17 b. Basic Program Rules and Standards 17 c. Permitting 20 iii. Oil and Hazardous Substance Prevention & Response and Reporting Permit Program 22 iv. Dredge and Fill Wetlands Permit Program 22 d. How Standards are set and Reviewed 23 (V) CLEAN AIR ACT 23 b. Analysis 23 a. Title I: National Ambient Air Quality Standards 24 iii. National emission standards for hazardous air pollutants 24 iv. Non-Attainment of Air Quality Standards 24 v. Performance Standards for New and Modified emission sources 25 vi. Control Programs for New Stationary Sources 25 c. Title II: Regulation of Mobile Sources 28 a. Title III: Hazardous Air Pollutants 28 c. Title V Operating Permits Program 28 (VI) REGULATION OF RISK 29 (VII) ENVIRONMENTAL IMPACT ASSESSMENT 29 (VIII) ENFORCEMENT 30 a. Inspections, Routine and otherwise 30 b. Enforcement Options 31 c. Standing and Citizens Suits 31 d. A Permit is a Shield 32 e. Theories of Liability 32 2 ANALYSIS OF A DEVELOPMENT a. Water Issues: i. Where does the run-off go? ii. Where does the water come from? iii. Where is waste water treated? iv. Permit? b. Hazardous Waste Issues i. Generator Permit ii. Transporter Permit iii. Treater Permit iv. CERCLA Liability c. Clean Air Issues i. Stationary Source ii. Mobile Source iii. All Need Permits d. Federal Actors: NEPA Compliance /EIS e. Standard Legal Issues i. Nuisance ii. Negligence iii. Strict Liability (II) SOURCES OF ENVIRONMENTAL LAW a. COMMON LAW i. Nuisance 1. Private Nuisance a. Private cause of action b. Must be on your property to bring the action. c. Must be outrageous interference with use and enjoyment of property. d. Usually has to be intentional, or must be actionable as ultra-hazardous activity. i. Madison v. Ducktown Sulphur ii. Rule: An environmental injury will not be declared a nuisance unless it outweighs the utility of the activity. 2. Public Nuisance a. Private Party does an act that affects a large number of people. b. Burning down the forest. c. See Slides for Important Cases d. When a Federal Regulatory Scheme allows a certain amount of pollutants, it becomes an entitlement and defense against nuisance, trespass, negligence and strict liability. e. CA people have brought nuisance cause of action against Canadian Polluters who are throwing nasties into the air. i. Missouri vs. Illinois. 1. Facts: Missouri challenged Chicago’s practice of dumping 3 sewage into Lake Michigan, which emptied into the Mississippi River, the source of drinking water for St. Louis. About 200 people died in St. Louis each year from typhoid. 2. Rule: Federal Courts have Jurisdiction over interstate claims. ii. Trespass 1. No intent required? 2. Violation of Exclusive Right to Possession iii. Negligence 1. Breach of Duty 2. Damages Proximately Caused by Breach 3. Negligence Per Se a. No Causation Requirement b. Must be a violation of a law meant to prevent the kind of harm that resulted. c. i.e. I’m hacking and coughing and that factory is spewing pollutants in excess of their permit. iv. Strict Liability – Ultra Hazardous Activity v. Joint and Several Liability 1. Equitable Apportionment vi. b. MAJOR LEGISLATION: i. SAFE DRINKING WATER ACT 1. Minimum Standards for Purveyors of Water ii. TOXIC SUBSTANCES CONTROL ACT iii. FEDERAL CIVIL RIGHTS ACT 42 USC § 1983 1. No Discrimination based on race 2. Thus when EPA cites hazardous waste landfills only in low income areas that are predominantly ethnic, can use this law. 3. Different types of people eat different foods, so consider when setting ecological regulations. iv. NEPA PROCESS (National Environmental Policy Act) 1. Requires federal agencies to integrate environmental values into their decision making processes by: a. Considering the environmental impacts of their proposed actions and, b. Rx alternatives to those actions. 2. To meet this requirement, federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS). a. EPA reviews and comments on EISs prepared by other federal agencies, maintains a national filing system for all EISs, and assures that its own actions comply with NEPA. 3. EIS Process: Be sure to provide adequate forum for discussion a. All stakeholders present 4 b. identify all foreseeable consequences c. Small actions are preferable. d. Unforeseen results almost always occur. c. REGULATORY STRUCTURE IN CALIFORNIA i. Thee Tiers of Enforcement: 1. Feds 2. State a. Feds Delegate Programs to State b. States have parallel programs 3. Local ii. Federal Agencies 1. EPA Region IX a. Direct Enforcement: i. Toxic Substances ii. Pesticides iii. Emergency Planning iv. Community Right to Know Act 2. US Dept of Commerce /Bureau of Land Management a. Endangered Species Act b. US Fish and Wildlife Service 3. US Coast Guard a. Spill Prevention and Response 4. Occupational Safety and Health Admin (OSHA) iii. California Jurisdiction 1. CAL /EPA – An Umbrella Agency consting of: a. Dept. of Toxic Sub. Control b. State Water Resources Control Board c. Cal. Air Resources Board. d. Office of Environmental Health Hazard Assessment e. Integrated Waste Management Board f. Department of Pesticide Regulation 2. State Water Resource Control Board a. Enforces Water Rights and Quality under Clean Water Act and State Water Quality Act b. Oversees 9 regional Water Quality Control Boards. 3. Cal. Air Review Board (CARB) a. Prepares State Implementation Plans to fall in line with Clean Air Act. b. Oversees Air Quality Management Districts 4. CAL OSHA 5. Dept. Fish and Game 6. Office of Emergency Services 7. Dept. of Health Services iv. Regional Agencies 1. Air Quality Management /Air Pollution Control Districts. a. 8 AQMDs and 17 APCDs. b. Responsible for mobile source regulations c. Reformulated fuels program 5 d. Toxic Air Contaminants e. Consumer Product Regulations. 2. Regional Water Control Boards (9). a. Enforce through permits and fines b. Exercises appellate review and oversight. 3. Sewer and Sanitation Districts a. Manage collection and treatment of waste water. b. Permit and regulate industrial users based on: i. Clean Water Act ii. State Water Quality Standards c. Regulated in Turn by Feds and State on discharge standards. d. JURISDICTIONAL ISSUES i. Can a federal common law nuisance be brought against a state? (Milwaukee v. Illinois) ii. States suing each other in Federal Court: Defendant’s law must be applied. iii. Enforceability of State Regulations: 1. Take Principles of Cooperative Federalism, Commerce Clause and Equal Protections 2. States can make stricter standards than Feds. iv. Federal Preemption: a. Toxic Substances Control Act b. FIFRA (Federal Insecticide, Fungicide and Rodenticide Act) c. Clean Air Act i. Auto Emissions Standards 1. Partially Pre-empts but gives states certain rights. d. Licensing Atomic Power Plants. e. Feds can Compel States: i. Congress may not simply commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program (Hodel v. Virginia Surface Mining). v. Judicial Deference to Regulatory Control (Chevron v. NRDC). e. THE REGULATORY PROCESS i. Agency Policy Space 1. Almost all federal laws contain provisions that allow agencies to pass regulations interpreting the legislation. 2. This is called a “policy space” ii. Rulemaking Procedure 1. 5th Amendment provides for due process a. Due Process = Notice & Opportunity to Be Heard b. Notice may be constructive – such as a public hearing or publication or public recording. 2. Administrative Procedure Act, “Informal Rulemaking” Elements (5 USC § 553) 6 a. Public Notice b. Opportunity to be heard c. Publication of final rules and statement of reasons 3. Additional process provisions and special requirements a. Advanced notice of proposed rulemaking i. All stakeholders lobby and give their statistics to the agency and tell their story. ii. The agency is then fairly well informed, even before they publish the draft rule. b. Publication of draft rules c. Interagency Consultations d. Special rulemaking docket provisions 4. Additional Limits on Rulemaking a. Contained in Substantive Environmental Law b. Negotiated Rulemaking Act c. Freedom of Information Act (5 USC 552) d. Regulatory Flexibility Act (5 USC 601) i. For small regulations creates more flexibility. e. Small Business Regulatory Enforcement Fairness Act /Congressional Review Act i. Enacted during 104th Congress ii. Congress under appropriate circumstances may stop rulemaking if it is sufficiently antismmal business in intent or enactment. iii. Constitutional and separation of powers issue. iv. Must be a super-majority. f. Executive Order No 12,866. i. Directs agencies to cooperate and participate more. 5. Negotiated Rulemaking (NRA 1990) a. Used only in small scale scenarios 6. Generic Approaches to Rulemaking a. AFL CIO v. OSHA 965 F.2d 962 i. Court can tell an agency how to deal with rulemaking. iii. Presidential Oversight of Rulemaking 1. Now formalized by Executive Order 2. E.g. Executive Order No 12,866 a. Limits OMB review of regulatory action b. Requires public disclosure of review process 3. Sierra Club v. Costle 657 F.2d 298 a. Issue: When and to what extent presidential communication with agency must be made public or appear on the public record. iv. Judicial Review of Regulatory Process 1. Chevron Deference, but 2. Where specifically authorized by substantive law 3. Must exhaust administrative remedies first 7 4. Can’t do it when actions are left to agency discretion, such as setting standards that have been ordered to be set by congress. a. i.e. “set standards for vehicle air pollution” b. Generally challenges are held to those made in the administrative record. If you don’t bring the point up in the lawmaking phase, probably can’t litigate. 5. Separate and distinct from “Citizen Suit” provisions present in most environmental laws to allow actions. 6. Limitations and Conditions a. Limited to Final Agency Action b. Requirement of Standing c. Requirement of ripe for review 7. No Chevron Deference when Agencies definitions exceeds powers under the constitution or legislative intent. 8. Ambiguities in the Statute will be resolved in the defendant’s favor (US v. Plaza Health Laboratories) v. (III) REGULATION OF HAZARDOUS WASTE a. RCRA – Resource Conservation and Recovery Act 1. Passed: 1976, amended 1984 and 1992 2. RCRA Sets our a road map for identifying, managing, transporting, treating, storing or disposing of waste. 3. Sets Hazardous Waste Pollution Standards: a. Regulates: Sources of Hazardous Waste b. Sets Standards & Minimum Tech Requirements. b. SUMMARY (See Diagram on Slides) i. Is it a waste as to owner? ii. If waste meets definition of solid waste then subject to certain regulations. (Need into on this) iii. If waste meets definition of Hazardous Waste, then subject to more stringent regulation. c. WHAT is Regulated by RCRA: Hazardous Waste Pollution Control from Sources Definitions: i. Sources: that emit 1. Old: each pipe 2. Modern: EPA defines source, can be pipe or system. ii. Solid Waste, or waste that is 1. Any solid, semi-solid, liquid, or contained gaseous material that is: a. Garbage b. Refuse c. Sludge from waste /water treatment or APC facilities d. Other discarded material from industrial, commercial, mining, and agricultural activities and community activities. 8 e. Discarded means: i. Abandoned (regulated) 1. Disposed of 2. Burned 3. Accumulated in lieu of abandonment ii. Recycled (Regulated if solid waste) 1. Materials are not solid waste if: 2. Directly used as ingredients or feedstock’s in production processes without being reclaimed. 3. Used as effective substitutes for commercial product without reclamation, 4. Recycled in a closed loop production process 5. Inherently waste like. 2. If what you are accumulating isn’t gone in a year, presumably it is waste not product. (American Mining Congress v. EPA). a. There has to be a readily available market or use. iii. Hazardous Waste: 1. Solid Waste that: 2. Causes /Contributes to Death or irreparable harm. i. Regulatory Exceptions: 1. Household Waste 2. Agricultural Waste returned to the ground as fertilizer 3. Minimg overburden returned to the mine site 4. Utility waste from coal combustions 5. Oil and Natural gas E&P waste 6. Wastes from Ore and Mineral Extraction and processing. ii. Universal Waste Exception 1. NiCad Batteries, Flourescnet Lamps 3. This is a minimum standard, states are free to adopt more stringent laws, so long as they are not inconsistent. 4. TYPES OF HAZARDOUS WASTE: a. Listed Wastes i. If not from a listed reservoir, then have to do homework to find out what it is. ii. You can’t dispose of listed waste at a facility not authorized to take that listing. iii. F Code – haxardous wastes from nonspeccifi sources iv. D-Code – Materials with certain characteristics 1. Ignitability – 40 CFR § 261.21 (Code D0001) 9 a. Flash at 100 degrees Censius. 2. Corrosivity 3. Reactivity 4. Toxicity v. K Code –Haxardous Waste from specific sources (very specific) vi. P Code – Acute Hazardous Waste 1. Virgin Chemicals vii. U Code – Other Hazardous Wastes b. Non-Listed Wastes i. i.e. Characteristic Wastes?? ii. D-Code wastes? (See above) 5. Special Rules Involving designation as Hazardous Waste: a. The Mixture Rule i. Any mixture of a solid waste and a listed hazardous waste is the listed waste in the weight of the combined elements. ii. The solution to pollution is not dilution. iii. Listed waste + nonhazardous waste = listed waste b. The Derived From Rule 40 CFR 261.3 i. Wastewaters derived from the treatment of one or more listed wastes or characteristic wastes. c. The Contained In Rule i. Environmental media that contain hazardous waste must be managed as hazardous waste until the med ii. Debris contaminated with a RCRA listed waste must be managed as a hazardous waste until it no longer contains the hazardous waste 1. The definition of debris found in §268.2(g) includes a. Solid material b. Particles that exceed 60 mm in size c. Materials that are intended for disposal iii. Media do not contain a characteristic waste when the media no longer exhibit a character iv. Media do not contain a waste listed for a characteristic when the media no longer exhibit a characteristic v. Determination that media no longer contain listed waste is made by states or EPA regions 10 b. WHO is Regulated by RCRA i. Generators (40 CFR Part 262) 1. If a generator, are you making waste? 2. If yes, give notice of hazardous waste activity. 3. EPA and State will give ID number for facility. a. Must use a manifest b. Can’t store for more than 90 days c. Can’t treat, unless storing less than 90 days i. Do you need a permit for this??? d. Otherwise treatment requires a permit. e. Disposal contemplates permanent placement of waste 4. If you buy a commercial lot, once you determine you have waste on the property you will be considered a generator. a. You can be on actual or constructive notice (should have known because of the way the land looked). ii. Transporters – 40 CFR 263 1. Regulated by EPA and DOT 2. All transporters must have an EPA number. 3. Must Keep a manifest 4. Must take immediate action to control spills 5. These regulations do not apply to on-site transportation of hazardous waste by generators or by owners or operators of permitted hazardous waste management facilities. iii. Treaters /Storage /Disposal – (TSDF’s) 1. Really regulated. 2. Personal Training Standards 3. Security Standards 4. General Inspection Standards 5. Financial Assurances (bonds & insurance) 6. Construction Quality Assurance Program 7. Testing and Maintenance of Equipment 8. Use of Manifest System as Operating Record 9. Ground Water Protection Systems 10. Compliance Monitoring System 11. Corrective Action Program 12. Closure performance standard 13. Decontamination Program 14. Disaster Plans a. Appointment of emergency coordinator c. HOW is Regulation Enforced: i. Subtitle C Program – Hazardous Waste Management 1. Violation of subtitle C provisions are subject to civil penalties of $27,500 per day. 2. No requirement of notice before per diem penalties accrue 3. Knowing Violations: Criminal Penalties. ii. d. CERCLA – Comprehensive Environmental Response Compensation and Liability Act. (1980) 11 i. Modified by SARA: Superfund Amendment Reauthorization Act (1986) ii. Agency with Jurisdiction: EPA iii. WHAT is CERCLA Deals with “Abandoned Sites” that contain “Hazardous Substances”. 1. Identify “Abandoned” Sites, a. “Facilities” where hazardous substances are present and threaten human health or the environment. 2. Makes owners and operators liable for the cleaning up Hazardous Substances at such sites. iv. Definitions: 1. “Hazardous Substances” = The Whole Universe 2. “Hazardous Waste” = Subset of Hazardous Substances. a. Hazardous Waste is either: i. EPA Listed in 40 CFR § 302.4) or ii. EPA Characteristic 1. Ignitable 2. Corrosive 3. Reactive a. Violent change when mixed with water b. Creates toxic gases when mixed with water. c. Capable of detonation at room temperative. iii. CWA “toxic Pollutants” and “hazardous substances” iv. Clean Air Act Hazardous Air Pollutants v. TSCA “imminently hazardous chemicals” vi. Term Excludes “petroleum or any fraction thereof” 1. If there are enhancers that may be hazardous, it is still exempt a. i.e. gasoline with enhancers are exempt. 2. However, a super-mixture rule applies to it once it is used if it took any new compounds to it in use it becomes a Hazardous Substance. 3. “Release” or “Threatened Release” a. No minimum thresholod quantity needed to trigger response /liability b. Statutory Exclusions (workplace, vehicle exhaust, fertilizer application) c. Exception: Federally permitted release. (eg pursuant to a permit from National Permit System) 4. “Facility” a. broadly and vaguely defined. 5. “National Priorities List” (the “NPL”) 12 a. A list of facilities eligible for long term remedial action financed by the superfund taxes. b. NPL sites are listed on Appendix B to 40 CFR Part 300. c. Just because a property is not on the NPL does not mean EPA /others cannot respond and act under CERCLA. d. Being on the NPl does not mean Facility will be cleaned up using superfund dollars. e. Not much left in superfund because there has been on Tax in a long time. f. Communities can participate in this designation process. 6. “National Contingency Plan” a. Primary guidance document for CERCLA response activities b. Cam out of clean water act. 7. “Superfund” a. Was the money collected from taxes for remediation. v. WHO is liable: 1. Current Owner /Operator a. Liable Time: (§ 107) i. Current ii. @Time of Disposal iii. Arranger iv. Transporter b. 4 Classes of Owners may be Liable: i. Owner /Operator of Vessel (regardless of fault). 1. This nails people! 2. Reason is: a. Provides someone to clean up b. Encourages due diligence c. Doesn’t give owners or operators a free ride. ii. Any Person who owned it at the time substances disposed of: 1. Manufacturer is still liable when product in the hands of a bailee (i.e. still owns title). (US v. Aceto). 2. If not in the business of disposal, still can be liable for arranging for disposal. iii. Owner /Operator during Transport: 1. Also liable for disposal and release because knowledge can be inferred 13 that knows where it is going to end up. iv. Acquired by Contract 1. Acquire a company with CERCLA liability acquire the liability. 2. Mere Continuation Doctrine: Don’t look like a mere continuation, i.e. take assets, same name, same employees and keep operating in same manner. This is a means of attaching liability. v. EXCEPT (SARA created safe harbors) 1. Innocent Purchaser Rule: a. “You are not an owner if you perform all appropriate inquiry before acquiring ownership or control and do not find contamination” is not an owner according to the definition. b. “All Appropriate Inquiry” is everything a trained engineer would do – the state of the art. (40 CFR § 312 ) c. Only way to really be afforded protection is if defrauded. 2. Brownfields Amendment of 2002 a. Kept “innocent landowner” b. Added “Bona Fide Prospective Purchaser”, someone who does all appropriate inquiry, and takes all reasonable measures and finds toxins. This is the catch all. Makes buying a free ride. But current owners stuck. c. “Contiguous Property Owner” i. Anyone who has a continguous property or is in the chain of title of a contiguous property, that becomes contaminated due to movement of the toxins, and who engages in all 14 appropriate inquiry takes reasonable steps, and does not find toxins has no liability. ii. Issue is, these people were never liable, so it actually created liability in a class that wasn’t liable then relieved it for people who follow the proper steps. d. Redefines the term owner to a person who has not conducted all appropriate inquiry and who has not interfered with any other actor working at the site, and who takes reasonable steps to keep from spreading e. Term Owner Does not include A Bank or Savings and Loan f. Practical Tip: write EPA a letter saying conducted all appropriate inquiry and get a response saying what all reasonable steps are. c. Designations not mutually exclusive, an entity could be a transporter, owner and disposer. i. See Kaiser Aluminum case on P. 371 1. Contractor liable as a PRP because he was the only person present on the site, so he was the current operator, and in picking up the goo in his backhoe and dropping it on a different place on the site, he is a disposer. d. vi. WHEN does liability arise: 1. Section 103(a) requires “person in charge” of “vessel” or “facility” to immediately notify National Response Center regarding any release of any “Hazardous Substance” at/above “Reportable Quantity” for that substance. 2. Penalty for failure to report: Fine or Imprisonment. 3. “Person in charge” is someone with ability to control the situation. a. Therefore, doing research in escrow does not arise to a duty to report. 15 4. “Reportable Quantity” is the amount released in 24 hours. 5. Listed Hazardous Substances: 40 CFR § 302.4 has two appendices, A (by name) and B (by ID number) that identify reportable quantity next to each substance. 6. Un-listed Hazardous Substances: Where there are not reportable quantities, such as under clean water act, report as soon as meet qualitative level, i.e. visible sheen. 7. § 103(c) reporting historic disposal activity at non-RCRA permitted facilities (by 5/11/81). 8. § 103(f) continuous release reporting a. where releases are stable in quantity and rate b. allows for annual reporting until stability ends 9. Exclusions – no reporting required for: a. Normal application of pesticides b. Statutory exclusions notes above 10. vii. HOW is liability Enforced: 1. Strict, Joint and Several Liability a. Strict for Ultra-Hazardous Activities b. Joint and Several c. Retro-active. i. Imposes liability on companies that were doing things that were legal. ii. Argued that it was an ex post facto law and/or a bill of attainder and unconstitutional. 1. Not ex post facto because it is not retroactively criminal. Not a ‘punishment’ rather just imposing responsibility. It is a tax. 2. US. v. Olin a. Challenge to CERCLA under commerce clause. b. Saying Congress does not have authority to regulate something that does not substantially regulate interstate commerce. i. This is post Lopez case, where supreme court changed its opinion. c. If toxic waste is not in interstate commerce, Congress cannot touch it. d. But under the substantially effects test then congress can regulate. e. Also, people are affected by toxic waste and people move 16 between states and engage in commerce. 2. EPA ENFORCEMENT: 3. Government response action authorized whenever there has been a release of any HAZARDOUS SUBSTANCE (§ 104(a)) 4. EPA can “Respond” to a “Pollutant or Contaminant” to prevent imminent and substantial danger to public health. a. However cannot impose liability under CERCLA to recover costs incurred in responding to a release or threatened release. 5. Response Action can be: a. Removal Action i. Short Term action taken to deal with an emergency 1. i.e. truck tipped over on highway. 2. Anyone can take remedial actions. a. Put berms around, keep people away, notify people. ii. Limited in duration to a year of less and $2m or less, generally. iii. Must play by the rules to not be liable. b. Remedial Action i. This is the long term solution to the problem designed to eliminate, reduce or control the risk. ii. EPA takes or requires remedial action at NPL sites. iii. Private parties and others can take remedial action wherever CERCLA preconditions exist (i.e., release or threatened release of…) iv. Overview of remedy Selection Process for NPL sites 1. Investigation /feasibility study 2. Record of Decision 3. Remedial Design 4. Remedial Action 5. Operation of maintenance. 6. De-Listing /Construction Completion. 7. Public Participation Key Element In remedy Selection. v. Principle Requirements for Remedial Action 1. CERCLA Sec. 121 a. Protect Human Health and the Environment b. Comply with Applicable Relevant and Appropriate Requirements of other federal /state law 17 c. Be Cost Effective 6. Damages under CERCLA a. Damages: i. All necessary and NCP consistent Response Costs ii. Interest from the “Date of Demand” b. Seeking Recompense for Cleanup i. § 106 permits person who complies with government ordered cleanup to file claim against superfund for reimbursement. ii. Must show not the liable party under § 107 (CONUNDRUM)., iii. Or made to do a capricious act. c. Litigation as Recompense Remedy for prior contaminator i. CERCLA does not provide for an award of attorney’s fees. ii. You can get all costs of response to show you complied with National Contingency Plan (including public participation). (IV) WATER POLLUTION CONTROL a. Legislation: i. Federal Water Pollution Control Act of 1972 ii. Flannery Decree and 1977 Amendments 1. Focused on toxic pollutants 2. emphasis on technology forcing effluent limits iii. 1987 Amendments 1. Focus on storm water and its impact on receiving water quality. b. Basic Program Rules and Standards i. Rule: No Person to discharge any pollutant to “Navigable Waters” except in compliance with the terms of a permit. (all waters of the US) 1. CWA 301 General Requirements: No Person can discharge any pollutant to navigable waters of the US from any point source except in compliance with permit. a. Person = any discharger or its acting agents b. Discharge = any addition of the pollutant to navigable waters from any point source i. National Mining Assoc. US Army Corps of Engineers 1. Controlled their delegated policy space: 2. Hold: Struck Down 1993 regulation of the U.S. Army Corps of Engineers that removed a de minimis exception to § 404 of the Clean Water Act, and expanded the definition of dredged discharge to include redeposit of 18 dredged materials, including fallback, under the statute. c. Pollutant = i. Conventional Pollutants 1. Anything that reduces available oxygen content in the water. a. Solids b. Fecal Matter c. Oil and Grease d. High PH substances ii. Toxic Pollutants 1. All pollutants exhibiting acute or chronic toxicity 2. 65 Pollutants have priority for standard setting under 1977 amendment. 3. Non-Conventional Pollutants d. Point Source = broadly defined to include any “discrete conveyance” from which pollutants may be discharged i. Moving water from one body to another with no net effect is still a discharge from a point source (S. Fl Water Mgmt Dist. Miccosukee Tribe). e. Navigable waters (of the US) = includes any surface water body with impacts or has relationship to interstate commerce (generally, not groundwater). i. Waters” Includes adjacent wetlands defined as: 1. “Those areas which are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions.” 2. Significant Nexus Test to see if “Water” a. Significant nexus between the wetlands in question and the navigable waters in the traditional sense. b. Nexus is defined in terms of restoring and maintaining the chemical, physical and biological integrity of the nations waters. c. (Solid Waste Agency v. Swank) 19 3. Rapanos Rule: Only included relatively permanent bodies or streams of waters. Not intermittent or ephemeral channels. a. If can see it all year long it is clearly a stream bed, and b. has continuous surface connection to bodies of water. c. However, a set channel like LA river, even though largely dry, is clearly a channel. ii. Scope of Federal Authority under Clean Water Act 1. Policy Space: Chevron Deference to Agency Interpretation (Riverside Bay View Case) unless exceeds constitutional power or legislative intent (US v. Plaza Health Laboratories) iii. Standards: 1. Technology Based a. Effluent standards based on type of discharge (i.e. steele mill) and when facility built. Standards: b. Best Practicable Technology Currently Available i. Applies to all conventional pollutants as a baseline ii. Based on “avg of the best” performance in an industrial category iii. Typically, EPA identifies a model treatment technology and sets limits based on capabilities of that technology. c. Best Conventional Pollutant Control Technology i. Can be applied to discharge of conventional pollutants to impose restrictions where “cost reasonable” (generally BCT = BPT) d. Best Available Technology Economically Available. i. Applies to all toxic and non-conventional pollutants ii. Based on ‘best of the best’ performance in category. e. New Source Performance Standards i. Requires “greatest decree of effluent reduction achievable through best available demonstrated control technologies, operating methods or other alternatives. ii. Cost is no object iii. New Source means “Building, structure, facility, or installation, construction of 20 which commenced after promulgation” of final rule setting standards iv. Key to grand fathering – document when construction commenced. f. Best Professional Judgment. (When no standard set yet). i. Established by Permit writer. ii. Anti-Back sliding rule locks in BPJ regardless of subsequent categorical standards established in later rule making. You get what you settle for. g. The description for each of these standards is translated wherever possible into numeric effluent limits. h. 2. Water Quality Standards a. Water quality standards (the safety net) i. Additional discharge restrictions set by EPA and individual states based on quality of “receiving water” ii. Basic Premise: No Person may discharge any pollutant to “navigable waters” except in compliance with the terms of a permit iii. “Navigable Waters” = waters of the US. iv. Variances: 1. Fundamentally Different Factors Test (CWA 301(n)) a. Application must be submitted within 180 days after guideline in question was established b. Cannot be based on cost of controlling pollutants. 2. Economic Incapability (CWA 301(c)) 3. Generally not applicable for “priority” toxic pollutant a. Except Chemical Manufacturers Association v. NRDC 4. Document proposed standard should not apply to your facility early in rule making. 5. c. Permitting: i. National Pollutant Discharge Elimination System (NPDES) and Pretreatment Permits 1. Direct to River is one standard a. Standard? 2. Direct to treatment facility different standard. a. Standard? b. Total Maximum Daily Load Requirement 3. NPDES permit process a. Permit Application (file 180 days before commencing discharge or expiration of existing permit) i. Certification by responsible corporate officer 21 ii. Liaison with permit writer is essential b. Draft Permit and Comment Period i. Regional Boards c. Final Permit i. Normally issues for 5 year term. 4. Stopping a Permitee already licensed: a. Can only do so if there is can get a federal court to overturn for undue impact. ii. Stormwater Pretreatment Program (§ 307) 1. Administered by: publicly owned treatment works to regulate industrial users discharging effluent via sanitary sewers to their treatment systems 2. Rule: No Industrial User may put stuff in the system that will pass through without being treated, interfere with treatment mechanisms, and biosolids management. a. Because if the above happened it may meet the definition of Hazardous Waste. 3. 1987 CWA Amendments establish framework to regulate municipal and industrial storm-water discharges under NPDES Permit Program. 4. Nov. 1990 EPA publishes regulations establishing application requirements for storm-water permits. 5. Current program targets storm-water discharges a. Associated with Industrial Activity i. Run off directly related to manufacturing processing or materials storage ii. Regulations define what type of facilities have “industrial activity” iii. If you have run off, goal is to eliminate any non-storm water contribution to the water. iv. Covered Facilities: (40 CFR Sec. 122.26(b)(14)). 1. Facilities that do more than one activity are covered by this law if the majority of their income is derived from the covered activity. 2. Essay Question: If the interpretation of a. above which was made in a comment in the rule making stage is effective law. b. From certain construction activity (1 acres or more) c. From municipal separate storm sewer systems. d. MS4s = Municipal Separate Stormwater Sewer Systems i. Applicability: Local Sewer systems in municipalities with populations 1. Over 250k 2. 100k-250k 3. Less than 100K 22 ii. Focus is on controlling unauthorized discharges to storm sewers 1. No one can get a building permit until they can demonstrate a run off plan. 2. Standard Urban Stormwater Management Plan iii. Oil and Hazardous Substance Prevention & Response and Reporting Permit Program 1. Pre-CERCLA 2. Definition: Owner or Operator of any non-transportation related onshore and offshore facility that is: a. Involved in producing…must have a plan. b. Person in charge must make reports if there is a so much as a visible sheen within a 24 hour period. c. Strict Liability for penalties, clean up costs, damages to natural resources. i. Defenses: 1. Act of God 2. Act of War 3. Act of Third Party iv. Dredge and Fill Wetlands Permit Program 1. Separate from the NPDES program CWA 404 prohibits any discharge or placement of material from point source into surface water except with permit issued by US Army Corps of Engineers. 2. “Waters” Includes adjacent wetlands defined as: a. “Those areas which are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions.” b. Significant Nexus Test to see if “Water” i. See Page 18 (Solid Waste Agency v. Swank) c. Chevron Deference to Agency Interpretation (Riverside Bay View Case) 3. Covered Activities include any discharge or placement or dredged and fill materials a. Exempted activities include maintaining dams, dikes, constructing temporary farm, forest and mining roads, some agricultural activities. 4. Clean water act does not regulate ground water unless it is coming to the surface. 5. Steps to Get a Permit: a. No practicable alternatives available with less adverse impact. Practicable means an alternative that is available and capable of being done after taking into consideration , cost, existing technology, and logistics in light of overall project purpose, b. No statutory violations will occur, 23 c. No significant adverse impacts, d. All reasonable mitigation measures must be employed. d. How Standards are set and Reviewed i. States primarily responsible for developing water quality standards for their waters. ii. EPA reviews and approves state standards and control strategies iii. State required to review and update their standards every three years. iv. EPA may set water quality based limits where state fails to set standards to attain /maintain beneficial use (CWA 302 Program) v. CWA 303(d) /Total Maximum Daily Load Program: Requires EPA or delegated state to determine total capacity of a water body to assimilate a specific pollutant and set discharge individual discharges limits accordingly. vi. CWA 304(l) Individual Control Strategies 1. Applies to Impaired Waters and Generally Requires States to: designate impaired waters. (V) CLEAN AIR ACT i. Comprehensive measures to control outdoor air pollution ii. Nationwide standards and control measures iii. Program delegated to EPA who re-delegates to state agencies b. Analysis: i. Do we have a Stationary Source? (Needs a permit) 1. Does it qualify as a Major Source? i. Each emission point is a source. b. Attainment Area: 100 Tons /Year c. Non-Attainment Area: 250 Tons /Year d. May change depending on level of non-attainment. 2. Is it a new facility or is it existing contemplating replacing or upgrading? 3. Is it a regular repair? a. Take in context of size and scope of what is routine. b. Is it a major? c. If major, then it is a “Modification.” 4. If Modification, then it is subject to New Source Review 5. Then New Source Performance Standards applies to get a permit to emit: a. Best Available Control Technologies b. Credits 6. Alternative to NSPS is Plaint Wide Applicability Limits a. Lump all Source’s together and come up with an aggregate pollution number so you have some room to move between individual sources. 7. Has there been a violation of the allowable emissions? a. So long as permit has been properly applied for, then no liability for emissions. Permit is a shield. 24 b. Permits require compliance monitoring, and such records can be used as evidence of a violation. ii. Do we have a Mobile Source? 1. Examples include developments that create more traffic. 2. May mean that Air Quality Control District says a study must be done to ascertain increase in mobile air pollution and steps taken to offset this. a. Title I: National Ambient Air Quality Standards (NAAQS) 3. Health Based approach rather than tech based. 4. Focus: Mobile and Stationary Sources iii. National emission standards for hazardous air pollutants. 1. EPA sets and adjusts a. 5 year review as to standards and list of pollutants b. Economics and technical feasibility are generally not relevant. 2. States determine “health” of air quality control regions within their borders to determine whether, for each criteria pollutant: a. If standard is met (i.e. Attainment) b. If Standard no met (non-attainment) 3. State Implementation Plans (SIPS) a. Unfunded federal mandate – state’s obligation to determine whether or not they meet the standards set by EPA above. b. Cal Air Review Board (CARB) Produces SIP i. Adopted after Rx notice and public hearings ii. Reviewed for approval by EPA iii. Measures: SoX, NoX, Co, 02, PM, Lead. c. Can be replaced by Federal Implementation Plans (FIPS) when EPA determines i. State SIP inadequate ii. Where states fail to develop approvable SIPs. iii. Failure to produce approvable SIP or attain SIP goals has other consequence 1. Loss of Fed highway funds 2. Increase in offsets required for new construction. iv. Courts have identified limits on EPA approval authority. iv. Non-Attainment of Air Quality Standards: 1. States determine health of air quality control reasons within their borders to determine whether, for each criteria pollutant: a. standard met, or (attainment) b. standard not met (non attainment) i. 1990 Amend created sub classes for ozone: 25 ii. Extreme iii. Severe iv. Serious v. Moderate vi. Marginal vii. Sub Classes for Carbon Monoxide and PM viii. Serious and moderate. c. Permits much more stringent in non-attainment areas. 2. Levels of Non-Attainment (1990 amend) a. Ozone non-attainment sub-classifications: extreme, severe, moderate. b. If Moderate: i. Reasonable further progress ii. Permits issued to require reasonable available control tech 1. Smog checks. iii. Gasoline vapor recovery reqs iv. Mandatory vehicular inspection and maintenance v. Offset requirement: Increase the emission offset requirements to 1.15 to 1 for new source review. c. If Severe i. Everything plus ii. 1.3 to 1 offset d. Extreme i. Everything above plus ii. 1.5 to 1 offset. iii. Major source defined as facility with 10. tons a year iv. Limitations on stationary source fuels that can be used. 3. The EPA changes the definition of a “Major Source Emitter” when the non-attainment level is worse. v. Performance Standards for New and Modified emission sources. 1. Major facilities in areas meeting NAAQS are subject to Prevention of Significant Deterioration (PSD) program. a. New or modified major facilities must employ Best Available Control Technology (“BACT”). 2. Facilities in areas designated non-attainment subject to more rigorous emission controls 3. Alternative to New Source Review = Plant wide Applicability Limits vi. Control Programs for New Stationary Sources a. CAA recognizes existing sources are difficult to retrofit with new emission control tech 26 b. CAA has two separate programs to address new sources or major modifications of existing sources 2. New Source Performance Standards (NSPS) are : a. Uniform technology based standards of performance applicable to: i. New and modified sources ii. That contribute significantly to air pollution. b. EPA has set NSP for more than 65 source categories (40 CFR Part 60). c. NSPS triggered by: i. Constructing a new source – where construction is commenced after NSPS proposal is published. ii. Making a modification – any change which (significantly) increases the amount of emissions or changes method of operation. d. NSPS applies regardless of attainment status of a location. i. Duke Energy Corporation Case (P. 513) 1. Operated Power Plants 2. Replaced Certain Parts Overtime – didn’t change emissions. 3. EPA said now subject to new source review. 4. Court disagreed, because EPA had defined modification as an increase in emissions and here they defined it another (and there was actually no increase in emissions). 5. No Chevron Deference because there was no ambiguity in the statute (the first prong of analysis under Chevron Deference). e. New Source Review for NSPS Permitting (as of 2002) i. Prevention of Significant Deterioration (PSD NSR) are required for new major sources or major sources making a major modification in an attainment area, or 1. New or Modified major facilities must employ best available control technology. (BACT) 2. BACT set with reference to existing controls technically and economically feasible. 3. BACT -Best Available Control Technology: An emission limitation based on the maximum degree of emission reduction (considering energy, environmental, and 27 economic impacts) achievable through application of production processes and available methods, systems, and techniques. BACT does not permit emissions in excess of those allowed under any applicable Clean Air Act provisions. Use of the BACT concept is allowable on a case by case basis for major new or modified emissions sources in attainment areas and applies to each regulated pollutant. 4. Maximum Available Control Technology (MACT): The emission standard for sources of air pollution requiring the maximum reduction of hazardous emissions, taking cost and feasibility into account. Under the Clean Air Act Amendments of 1990, the MACT must not be less than the average emission level achieved by controls on the best performing 12 percent of existing sources, by category of industrial and utility sources. 5. Top Down approach limits state flexibility. ii. Non-Attainment (NA NSR) permits are required for new major sources or major sources making a major modification in a non-attainment area. iii. Issued by state or local air pollution control agencies as approved by EPA in the State SIP plan. 3. Plant Wide Applicability Limits (PAL) a. An alternative to NSR b. EPA created a different definition of the word source that included the entire plant, not each individual boiler etc. Basically, just call the entire refinery a source and play within those limits. c. Bubble only works for sources of the same criteria pollutant. i.e no offsetting sulfer dioxide with carbon oxide. vii. CAA Judicial History 1. AM Trucking Case a. Hold: EPA may make regulations as required by public health and it is not an unconstitutional delegation of authority. 2. Alaska v. EPA 28 a. Alaska and EPA have disagreement over how to deal with a new source under PSD program and if Alaska’s program compliant with clean air act. b. Red Dog mine had generators, and wanted to add more generators. Alaska approved this plan so long as Red Dog used lo-NOx technology under their PSD program. c. Issue: Can Alaska determine what is best available control technology? Can EPA overrule that by Administrative order to enforce the PSD program? d. Hold: EPA wins. EPA can enforce best available tech program because within sphere of regulatory control delegated by congress. e. This was part of a SIP program, and EPA determined it was not adequate. c. Title II: Regulation of Mobile Sources i. Applies to: 1. On road and off road sources 2. Regulates tailpipe emissions 3. Requires testing and certification 4. Establishes gasoline standards a. Use of Oxygenated Gasoline ii. TWO sets of standards: 1. EPA national standards 2. CA standards (more strict) 3. States can choose which to adopt. iii. Mobile sources contribute half of ozone causing emissions iv. a. Title III: Hazardous Air Pollutants i. Regulates S0x and Nox. And 187 other compounds emitted. 1. List not finalized yet. 2. No judicial review until finalized. ii. Regulates by Industrial Source Category 1. Primary Regulated Entities Are: a. Electric Utilities b. Most Fossil Fuel Fired Plants iii. EPA to determine the Maximum Achievable Control Technology for hear Industrial Source Category. iv. No Existing Source may be modified unless it complies with the MACT standard. v. Hazardous Air Pollution Sources subject to Title V permitting. vi. Permit Requirements: 1. Perform Hazard Assessment 2. Develop Risk Management Plan b. -Title IV Acid Rain i. c. Title V Operating Permits Program i. Single Permit Consolidates federally enforceable regulatory provisions (including SIP provisions) into a single facility wide permit. 29 ii. Permit Required for: 1. Construction or Operation of: a. Major Sources of: i. Criteria Pollutants ii. Hazardous Air Pollutants b. New Sources subject to NSPS c. “Affected Sources” under Acid Rain Program. iii. Permit Process: 1. First Draft a. Disclose Facility, production processes, products, emissions, emissions points, control and monitoring. b. Identify all regulatory requirements c. Propose i. Monitoring methods and ii. Compliance plan and schedule. 2. Public Notice 3. EPA and State Review. 4. Certification Requirements a. Semi-Annual certification of compliance. b. Personal Liability for falsifying. c. It is the burden of the source to demonstrate it remains in compliance. iv. Permit as Shield 1. Precludes the enforcement of requirements not identified in the permit. d. Title VI Stratospheric Ozone (VI) REGULATION OF RISK (VII) ENVIRONMENTAL IMPACT ASSESSMENT a. Put in place by National Environmental Policy Act (42 USC § 4321) b. EIS used anytime an action taken that will have a significant environmental impact. 2. Highways and Transportation Projects 3. Power Plants 4. Public water works 5. Housing projects 1. Public Buildings c. CA Equivalent Legislation in CEQA i. Analysis: 1. Is there a substantial impact? 2. If yes, Environmental Impact Report (EIR) 3. If No, Negative Declaration. d. FEDERAL ANALYSIS i. Determine if there is Major Federal Action Significantly Affecting the Quality of the Human Environment 1. Certain Actions are almost always non-major a. Routine Actions – such as highway surfacing. 2. Consider: Social, Economic, and Psychological impacts and the EIS requirements. 30 ii. If No, then FONSI (Finding of no significant impact). iii. If Yes, then you need an EIS: 1. Programmatic, or 2. Site Specific iv. EIS Contents: 1. Deed for detail a. Alternatives Section b. Consequences Section 2. Balanced Eval 3. Evaluating the indirect effects and cumulative impacts a. What could happen once initial steps are taken. 4. Public agency consultation and public participation. a. Opportunity to be heard from all stakeholders. b. Time limit to challenge is 180 days after published. e. Challenging an EIS i. Substantive Challenges to NEPA 1. Not much. If NEPA made a bad decision it can’t be challenged effectively. ii. Procedural Challenges 1. Effective. 2. Challenge on basis of standing to sue. 3. Remedies: Remand of the decision to have the EIS reconsidered by the agency. (VIII) ENFORCEMENT a. Inspections, Routine and otherwise. i. Can refuse based on 5th amendment rights. ii. Corporations don’t have such a privilege, but individuals can refuse to answer questions on the grounds it might incriminate you. iii. There are 300-400k NPDES permits. With quarterly reporting of 24 hour monitoring. iv. Agencies rely on self reporting and selective audits. 1. Bounty Hunder Provisions (CAA sec. 113 (f) and CERCLA sec. 109(d) and CA prop 65). v. Monitoring and Detecting Violations 1. Self Audits – Numerous states have adopted statutes to encourage self audits. BE ABLE TO DISTINGUISH BETWEEN: a. Privilege Only Model – (State model) Protects self audit from disclosure. Doesn’t stop independent evidence. b. Privilege and Immunity Model – (State model) protect Audit and Immunizes “self reporting” violator from all civil and criminal penalties. c. EPA model (P. 941) – We will reduce a portion of the penalty, but will not reduce the benefit of noncompllianc part and may not make a criminal referral. d. Two components of an settlement: i. The gravity of harm component 31 1. EPA may waive this for self reporting. ii. The economic Benefit component. b. Enforcement Options: i. Admin 1. Clean Water Act fines up to $135k without trial by jury and no discovery. Con law issue. 2. There are cases that say that no fine without jury trial. This is wrong, but they do it. You’d have to go to court about it on a writ standard. Arbitrary or capricious. ii. Civil 1. Sierra Club v. Cedar Point Oil Company a. 809 Days of unpermitted discharge into Galveston Bay b. Water from an oil operation. c. $25k a day. = 20M. d. Only have to pay $187k. It was the economic benefit received from doing that. 2. Harmon Industries v. Browner – the problem of Over-Filing. a. Rule: “Overfilling” is not permissible. Overfiling = a second suit over same incident by the EPA once sate agency has already prosecuted. EPA can’t enforce second suit if the state agency has already sued (under res judicata), however: EPA can tell agency it is coming after the defendant and then cut in line. iii. Criminal c. Standing and Citizens Suits i. Three types of private citizen enforcement: 1. Suit to enforce Federal Environmental Laws 2. Suit to force agency to act 3. Individuals acting as private attorney general’s and suing other private parties licensed by the government. ii. Standing: The Threshold Issue – Sierra Club v. Morton 1. US government awarded contract to Disney to develop park in the forrest. 2. Sierra Club thought this was a bad idea. 3. Hold: Admin Procedure Act gives citizens with standing against an agency who are injured by a final agency action. Non-economic injury is enough, i.e. injury to use and enjoyment.. Sierra Club didn’t allege a personal injury so didn’t have standing. 4. Modernly, under NEPA could challenge the EIS. iii. Post Sierra Club: 1. 4-fold Test Arises (Must meet all to have standing) a. Actual or threatened injury in fact to plaintiff b. Injury traceable to challenged federal agency action. c. Injury redress-able by judicial action (i.e. justicable) 32 d. Injured interest is “within the zone of interest” protected by the statute allegedly violated. i. i.e. raising cattle not within zone of clean water act. 2. Lujan v. Defenders of Wildlife (1987) See. P. 996 a. Zone of Interest = Must have a sufficient nexus. i. Own Property ii. have an investment in the area iii. Infliction of Emotional Distress. 1. Must have skin in the game. iv. Or a NEPA claim. b. Standing is not an ingenious academic exercise in the conceivable. c. Standing for businesses and the zone of interest test. i. A business using the admin proc act, cannot make that zone of interest hurdle readily, as most zones meant to be protected are not economic, they are environmental and health oriented. d. A Permit is a Shield. i. IF a permit has limits, and applies those limits to certain chemicals and not certain other chemicals, so long as they were all disclosed, the EPA or any agency operating under its authority gets deference from the courts. ii. A permit is an affirmative defense to a lawsuit about effluents. e. Theories of Liability i. Strict Liability ii. Criminal Negligence – US v. Park 1. RULE: Involves grocery store rodent infestation. A corporate officer in charge of compliance with public welfare laws can be personally liable. iii. Knowing Violations –US v. Weitzenhoff (Important Case, know fact pattern). 1. Facts: 2. Rule: Knowing = Conscious. a. The captain liable for the ship iv. Prosecutorial Policy – EPA and DOJ 1. Military Tactical Support Equipment is exempt from Clean Air Act. But issue with a private contractor bringing in generators for longer than 12 months to train and service military equipment as the equipment brought in by the civilians is not exempt. See Camp Pendleton Hovercraft issue. v. Knowing Endangerment P . 963 1. Durex Industries a. Plant manager 27 months in jail when put toxic waste in dumpster that killed two boys who climbed inside. vi. Responsible Corporate Officer 33 vii. EPA and DOJ prosecutorial policies. 1. Increasing resort to criminal prosecution. a. Corporate Entities b. Individual Employees – Managers and CEO’s. 2. All environmental laws include “criminal penalties” 3. Clean Air and Clean Water Acts include Negligent criminal penalties.