ENVIRONMENTAL LAW NOTES Regulation of Environment (1) Balancing of Cost v. Benefit of regulation in economic terms. (2) One end of spectrum, economics rule, other end, regulate purely passed on health. (3) FEDERAL CIVIL RIGHTS ACT a. Can’t discriminate or intent to discriminate based on racial criteria. b. Thus, when EPA cites hazardous waste landfills only in low income areas that are predominantly ethnic, can use this law. c. 42 USC § 1983 d. Different types of people east different types of foods, so must consider when setting ecological regulations. e. (4) NEPA Process Illustrates Basic Approach a. Administrative Procedure Act (A pre-NEPA law) provides standing for citizens suits. i. When a party is aggrieved by a final agency action, APA allows standing for the aggrieved party. (5) Be sure to provide an adequate forum for discussion a. Have all stakeholders present b. Identify all foreseeable consequences c. Small actions are preferable. d. Unforeseen results almost always occur. Overview of California’s Environmental Regulatory Structure (1) Three tiered enforcement structure: a. Fed, State, Local b. Federal Programs delegated to State Agencies c. State Agencies with parallel programs d. Regional and Local agencies providing additional layer. (2) Federal Jurisdiction a. EPA Region IX i. Delegated to State and Local Agencies: 1. CERCLA 2. Resource Conservation and Recovery Act 3. Clean Water Act 4. Clean Air Act ii. Enforced by EPA directly 1. Toxic Substances, Pesticides, Emergency Planning, and Community Right to Know Act (EPCRA) b. US Dept. of Commerce /Department of Interior (Bureau of Land Management) i. Endangered Species Act ii. US Fish and Wildlife Service c. US Coast Guard i. Spill Prevention and Response Activities d. Occupational Safety and Health Administration (OSHA) (3) California Jurisdiction a. CAL /EPA – An Umbrella Agency consting of: i. Dept. of Toxic Sub. Control ii. State Water Resources Control Board iii. Cal. Air Resources Board. iv. Office of Environmental Health Hazard Assessment v. Integrated Waste Management Board vi. Department of Pesticide Regulation b. Cal OSHA c. Dept. Fish and Game d. Office of Emergency Services e. Dept. of Health Services (4) Regional Agencies a. Air Quality Management /Air Pollution Control Districts. i. 8 AQMDs and 17 APCDs. Source of Environmental Law (1) Common Law Roots a. Nuisance i. Private Nuisance 1. Private cause of action 2. Must be on your property to bring the action. 3. Must be outrageous interference with use and enjoyment of property. 4. Usually has to be intentional, or must be actionable as ultra-hazardous activity. 5. See questions on P. 69 a. Madison v. Ducktown Sulphur ii. Public Nuisance 1. Private Party does an act that affects a large number of people. 2. Burning down the forest. 3. See Slides for Important Cases 4. When a Federal Regulatory Scheme allows a certain amount of pollutants, it becomes an entitlement and defense against nuisance, trespass, negligence and strict liability. 5. CA people have brought nuisance cause of action against Canadian Polluters who are throwing nasties into the air. a. Missouri vs. Illinois. b. Trespass i. No intent required? ii. Violation of Exclusive Right to Possession c. Negligence i. Breach of Duty ii. Damages Proximately Caused by Breach iii. Negligence Per Se 1. No Causation Requirement 2. Must be a violation of a law meant to prevent the kind of harm that resulted. 3. i.e. I’m hacking and coughing and that factory is spewing pollutants in excess of their permit. d. Strict Liability – Ultra Hazardous Activity e. Joint and Several Liability i. Equitable Apportionment (2) Regulatory Legislation a. Environmental Statutes b. Impact of Regulatory Legislation on common law actions c. Environmental Federalism. i. Federal Tort Claims Act: (3) Slide 10 a. Environmental laws are old. b. There is a lot of case law. i. People are still throwing commerce clause arguments at Endangered Species Act and failing. c. Lots of unfunded federal mandates (4) Slide 11: a. When building cities i. Where does runoff go? ii. Where does water come from? iii. Where is waste water treated? (5) Slide 12: a. Safe Drinking Water Act: i. Minimum standards for purveyors of water b. TSCA i. Tells everyone in US, before you make a new chemical we want to know a lot about it, what happens when thrown away, how it impacts people, air, water etc. (6) Slide 14: a. Citizens can sue agencies to act or sue permittees who are in noncompllianc if state agency doesn’t act. (7) Slide 15 a. FEDERALISM AND ENVIRONMENTAL LAW b. City of Milwaukee v. Illinois i. City had major problem with discharges. Was sued by a lot of people. ii. Can a federal common law nuisance be brought against a state. iii. Can you go after a permitte for an injunction when th permitee if complying with a federal permit (no). c. Look for legality of legislation under Commerce Clause and Federal Preemption Doctrine. d. Regulation Litigation i. International Paper v. Oullette 1. Illinous party sues NY party. 2. Removes to Federal Court 3. Feds say can’t rule on it based on plaintiff’s home turf law because that would allow states to reach beyond their boundaries. 4. But State can sue under defendant’s law. ii. If Federal Regulation permits certain activities, that legislation preempts common law actions under Federal Law such as nuisance so long as permittee is in line with the regulations. 1. If falls out of line causes of action become available a. Negligence Per Se, and b. Nuisance iii. However, so long as the defendant states law is applied in the case, then state common law may be available if not federally preempted. iv. States can generally provide for stricter standards or more rights than the federally prescribed minimums. e. Cooperative Federalism i. States take federal standards, make their own and enforce, or even make stricter standards than prescribed by the feds. f. Complete Federal Preemption i. Toxic Substances Control Act 1. We can only have one set of standards for the manufacture of a substance without inhibiting commerce, so feds opted to preempt. ii. FIFRA iii. Clean Air Act 1. Auto Emissions Standards 2. Partially Preempts but gives states certain rights. 3. South Coast Air Quality Management District a. Companies with 15 or more vehicles must have them retooled to run on low emission fuels b. Struck down in Supreme Court after looking at the hearing notes when the law was passed in congress. Congress meant to preempt. iv. Licensing Atomic Power Plants. (8) New York v. Unites States a. 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). b. No Take Title Provisions (you own readioactive crap that stops in yoru borders?/?) (9) Read Chevron USA v. Natural Resources Council (10) Approaches to Regulation a. Regulation and Its Alternatives 1. Market Forces 2. Common Law Liability 3. Government Regulation 4. Insurance 5. Case Study in Book: a. “Oil Pollution Act” b. One way Congress might decide to address a problem (the Exxon Valdez). c. 6. EPA: Clean Water Act. Except in compliance with the terms of a permit, any visible sheen of oil is a “harmful’ quantity of oil. Violation of clean water act. b. Assessing the Options i. Who bears the weight of Compliance? ii. What Factors to Consider in Setting Controls? iii. Ways to Control c. Comparing Regulatory Strategies (11) The Regulatory Process i. Rulemaking Procedures 1. Law Policy and Agency Decision Making a. Almost all federal laws contain provisions that allow agencies to pass regulations. b. This is called a “policy space” ii. Reforming Rulemaking 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) 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. Where specifically authorized by substantive law or APA 2. Must exhaust administrative remedies first 3. 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. 4. Separate and distinct from “Citizen Suit” provisions present in most environmental laws to allow actions. 5. Limitations and Conditions a. Limited to Final Agency Action b. Requirement of Standing c. Requirement of ripe for review (12) RCRA a. Source = Original Thinking was each tail pipe, each basic b. New Rule: EPA Can set standards for Sources, which includes redefining them to allow a source ot be defined as a system, not just each output. c. What Substances are “Solid Wastes” d. Identifying “Hazardous Wastes” e. Avoiding TSD Statutes f. RCRA Introduction (Resource Conservation and Recovery Act) i. Hazardous Waste is increasing. It is impacting environment. ii. RCRA regulates such waste. iii. Previous to RCRA it was regulated by states and a patchwork of laws. 1. Adopted as amendment to Solid Waste Disposal Act of 1965 2. Congress’ response to concerns regarding tracking and managing ‘solid waste’ 3. Definitions: a. Garbage /Refuse – Petressible, will rot. b. Trash – non-organic 4. iv. RCRA (1976 revised 1984 in Hazard & Solid Waste Amendment Act and expanded in enforcement in 1992 Federal Facility Compliance Act). 1. Sets minimum technology requirements 2. Land disposal limitations (no disposal of non-treated waste) 3. Key Provisions a. Subtitle C Program – Hazardous Waste Mgmt i. Identify Hazardous Wastes ii. Implement Standards 1. Transportation 2. Treatment iii. Basic Goals of Subtitle C 1. Reduce environmental threats from land disposal of waste 2. Technology forcing provisions for treatment. 3. Encourage reduction /recycling 4. Minimize Direct regulation of manufacturing processes. iv. Defined: Solid Waste: Any solid, semi-solid, liquid, or contained gaseous material that is: 1. Garbage 2. Refuse 3. Sludge from waste /water treatment or APC facilities 4. Other discarded material from industrial, commercial, mining, and agricultural activities and community activities. 5. Discarded means: a. Abandoned (regulated) i. Disposed of ii. Burned iii. Accumulated in lieu of abandonment b. Recycled (Regulated if solid waste) i. Materials are not solid waste if: ii. Directly used as ingredients or feedstock’s in production processes without being reclaimed. iii. Used as effective substitutes for commercial product without reclamation, iv. Recycled in a closed loop production process c. Inherently waste like. v. Definition of Hazardous Waste 1. 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 2. This is a minimum standard, states are free to adopt more stringent laws, so long as they are not inconsistent. vi. Two general 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) 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) vii. Three Special Rules Involving Hazardous Waste Regulation: 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. b. The Derived From Rule c. The Contained In Rule viii. Regulation Universe Divided into: 1. Generators (40 CFR Part 262 a. If a generator, are you making waste? b. If yes, give notice of hazardous waste activity. c. EPA and State will give ID number for facility. i. Must use a manifest ii. Can’t store for more than 90 days iii. Can’t treat, unless storing less than 90 days 1. Do you need a permit for this??? iv. Otherwise treatment requires a permit. v. Disposal contemplates permanent placement of waste d. If you buy a commercial lot, once you determine you have waste on the property you will be considered a generator. i. You can be on actual or constructive notice (should have known because of the way the land looked). 2. Transporters – 3. Treaters /Storage /Disposal – a. Really regulated. b. Personal Training Standards c. Security Standards d. Financial Assurances (bonds & insurance) e. Disaster Plans f. ix. SUMMARY (See Diagram on Slides) 1. Is it a waste as to owner? 2. If waste meets definition of solid waste then subject to certain regulations. 3. If waste meets definition of Hazardous Waste, then subject to more stringent regulation. x. 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. (13) Case: American Mining Congress v. EPA a. Don’t want EPA jurisdiction over how they recycle material. b. American Mining calls their use, ‘secondary’. c. Rule: Chevron case, agencies have to defer to agencies interpretation of the rule. d. Here, the court looks past the agencies interpretation of the definition by looking to the intent of congress – explicit or implicit. e. Presumptively, if 75% of what you are accumulating isn’t gone in a year, it is waste not product. i. There has to be a readily available market or use. f. P. 356 – Avoiding TSD status i. How to exploit common exclusions in statutory language. ii. 261.6 can treat it so long as holding and reclaiming it in less than 90 days. Can’t do it with other people’s stuff because no one will let a non-permitted company take their hazardous waste. (14) CERLCA – SuperFund a. Basic Principles i. CERCLA -Comprehensive, Environmental, response, Compensation, and Liability Act. ii. SARA – Superfund Amendment Reauthorization Act (1986) 1. Superfund – There was taxing authority from 1980 to 1995 iii. 1980 – 4 yours after RCRA set out a nice road map for identifying, managing, transporting, treating, storing or disposing of waste, still had issues with abandoned sites. iv. Identify “Abandoned” Sites (“facilities” where hazardous substances are present and threaten human health or the environment. 1. Make persons responsible for the releases liable for costs to clean up. 2. Compensate the state and others who incur costs. v. Definitions: 1. “Hazardous Substances” under CERCLA – The whole universe. a. Hazardous Waste is a subset. i. EPA Listed (40 CFR § 302.4) ii. RCRA hazardous wastes – listed and characteristic b. CWA “toxic Pollutants” and “hazardous substances” c. Clean Air Act Hazardous Air Pollutants d. TSCA “imminently hazardous chemicals” e. Term Excludes “petroleum or any fraction thereof” i. If there are enhancers that may be hazardous, it is still exempt 1. i.e. gasoline with enhancers are exempt. ii. 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. 2. 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. i. “Release” or “Threatened Release” 1. No minimum threshold of quantity 2. Statutory Exclusions for workplace, vehicle exhaust, fertilizer application). 3. Exception for permit. b. Other state and federal laws could though. 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” or “Vessel” a. Means any spilling leaking, pumping, pouring, leaching, or disposing into the environment. b. Could be a truck, a part of a river, areas contaminated. 5. “Facility” a. broadly and vaguely defined. 6. “National Priorities List” (the “NPL”) 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. 7. “National Contingency Plan” a. Primary guidance document for CERCLA response activities b. Cam out of clean water act. 8. “Superfund” a. Was the money collected from taxes for remediation. 9. b. Liability Provisions of CERCLA (Responsible Parties) i. Release Reporting and Notification 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. 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 ii. Response Action 1. § 104(a) Authorizes government response action whenever: a. there has been a release of any HAZARDOUS SUBSTANCE. 2. 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 c. Be Cost Effective c. Compensation under CERCLA 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. iv. v. d. Seeking a Litigation 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). iii. Current Owner /Current Operator 1. NY v. North Shore Realty Corp. a. Developer buys land, has provision for environmental study. Had provision to cancel. b. Estimated cleanup cost of $1M. c. Developer gets nailed. d. 4 Classes of people: 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 iii. Acquired by Contract iv. EXCEPT 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. 2. Brownfields Amendment of 2002 a. The term owner will not include anyone who conducts all appropriate inquiry prior to acquiring the property even if don’t find contamination, so long as take reasonable steps to deal with whatever found, not related to the people who caused the problem etc. b. Known as “Bona Fide Prospective Purchaser” c. 40 CFR § 312 precisely defines “All Appropriate Inquiry” before acquiring the property. 3. Term Owner Does not include: a. A Bank or Savings and Loan. v. Who is the Owner at time of disposal? 1. Maj.: You have to either be the owner at the time of the dumping (not gradual move of molecules). vi. Who is the Operator at time of disposal: vii. CERCLA § 107 Liability 1. Current 2. @Time of Disposal 3. Arranger 4. Transporter viii. Corporate Structures 1. Corporate Parent only liable if can pierce the corporate veil. ix. Cases: 1. Shore Realty 2. Norad 3. US v. Bestfoods: a. Whether or not a parent company will have to bail out a subsidiary. b. No. Parent does not. Only liable for the value of the subsidiary unless you can pierce the corporate veil. i. Requires fraud or malpractice. c. Are single asset entities protected from piercing of the corporate veil? Yes. To do otherwise would undermine capitalism. c. Responsible Parties (PRPs) i. Originally: Current Owner Operator See above ii. Innocent Purchaser Problems 1. SARA 1986 a. Superfund Amendment and Reauthorization Act i. Created “Innocent Landowner” ii. A person who conducts all appropriate inquiry and doesn’t find anything. iii. However the only way to qualify is if you were defrauded. iv. Practically this afforded no protection. 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 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. Practical Tip: write EPA a letter saying conducted all appropriate inquiry and get a response saying what all reasonable steps are. iii. Owner or Operator at the Time of Disposal 1. Disposal: the first actual dump made. 2. Release: The consequences of the disposal. 3. If acquire the company that owns the land, then acquire the liabilities too, including CERCLA liabilities. But can do it as a single asset subsidiary to shield the parent. 4. 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. 5. US v. Aceto Agricultural Chemicals Corp a. Blending Operation is the wholesaler in a region for paints. b. Toll blender dumped pesticide, Aceto was the supplier of the chemicals. EPA went after Acedo on theory Aceto arranged for the disposal. c. Rule: When product shipped per manufacturers orders and formulated per manufacturers specs, and manufacturer keeps title, then the wholesale ‘mixer’ is considered a bailee and the manufacturer can be liable for the acts of the wholesaler. d. Will not be held liable if sell to a third party who uses it in a new product. e. If not in the business of disposal, if don’t collect sales tax, then will be considered an arrangement for disposal and liability will attach. iv. Transporters 1. Also liable for disposal and release because knowledge can be inferred that knows where it is going to end up. v. All the above are not mutually exclusive designations, an entity could be a transporter, owner and disposer. 1. See Kaiser Aluminum case on P. 371 2. 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. Strict, Joint and Several Liability i. Strict for Ultra-Hazardous Activities ii. Joint and Several iii. Retro-active. 1. Imposes liability on companies that were doing things that were legal. 2. Argued that it was an ex post facto law and/or a bill of attainder and unconstitutional. a. Not ex post facto because it is not retroactively criminal. Not a ‘punishment’ rather just imposing responsibility. It is a tax. b. US. v. Olin i. Challenge to CERCLA under commerce clause. ii. Saying Congress does not have authority to regulate something that does not substantially regulate interstate commerce. 1. This is post Lopez case, where supreme court changed its opinion. iii. If toxic waste is not in interstate commerce, Congress cannot touch it. iv. But under the substantially effects test then congress can regulate. v. Also, people are affected by toxic waste and people move between states and engage in commerce. iv. Damages: 1. All necessary and NCP consistent Response Costs 2. Interest from the “Date of Demand” 3. e. Liability: Amount and Allocation i. Cost Recovery vs. Contribution a. Contribution 41 USC § 9613(f)(1) 2. When a party pays all or most of a joint and several liability, that party has rights to get contribution against the other liable parties for their joint fair share. ii. Standards and Costs of Removal and Remediation iii. How to Apply the right of contribution among PRP’s 1. Plaintiff’s share = P contribution /(P contribution +all PRP’s). 2. f. Cases: i. O’neil v. Picillo 1. Tried to argue against Joint and Several Liability a. Settling PRP’s vs. Non-Settling PRP’s b. § 107(a) Gov’t or any person can recover from any other person the cost to respond to a Release. c. What are the rights of people who have settled their liability? i. They can seek contribution against all the non-settlers on a volume basis. This is the exclusive remedy. d. See 41 USC § 9613(f)(1) 2. If only contribute a small portion of the spill, can be jointly liable for the whole thing. 3. Actors who are liable may turn around and cross complain against the small contributors, i.e. if it is a landfill all people who dropped toxins there, which causes many settlements by the small guys. 4. if less than 1/10th of 1 % can’t get dragged in. ii. Cooper Industries v. Aviall Services 1. Aviall buys 4 sites from Cooper, so they are now the current owners. 2. The sites are dirty. 3. Aviall cleans it up and sues Cooper for contribution under § 107 4. Cooper says cannot do it because § 113 does not allow contribution in absence of civil litigation, (there was only the threat of civil action from the state). However if there is a contractual right to contribution is stands. 5. However, § 113(f)(3) says if there is an administrative or judicial consent decree then have right to recover contribution. a. It DOES NOT pay to volunteer. 6. Case says you get what the statute says, not what the intent of the legislators was. This is very problematic because the writing is not always precise. g. Government Enforcement Strategy i. PrP’s who fail to settle risk unilateral administrative orders (UAO) directing them to perform work 1. up to 35k a day penalty for bad faith failure to respond, and 2. treble damages as to response costs EPA incurred upon PRP’s failure to implement UAO. 3. Parties who do enter consent orders /decrees receive a. Coventant not to sue b. Contribution protection as to “covered Matters” (15) WATER POLLUTION CONTROL a. Background and History i. 97.5% of water on the planet is salt water. ii. 2.4% is glacial. iii. Federal Water Pollution Control Act of 1972 iv. Flannery Decree and 1977 Amendments 1. Focused on toxic pollutants 2. emphasis on technology forcing effluent limits v. 1987 Amendments 1. Focus on storm water and its impact on receiving water quality. b. Basic Program Elements i. Technology Based & Water Quality Standards 1. Effluent standards based on type of discharge (i.e. steele mill) and when facility built 2. Water quality standards (the safety net) a. Additional discharge restrictions set by EPA and individual states based on quality of “receiving water” b. Basic Premise: No Person may discharge any pollutant to “navigable waters” except in compliance with the terms of a permit c. “Navigable Waters” = waters of the US. 3. Pollutants Regulated: a. Conventional Pollutants i. Anything that reduces available oxygen content in the water. ii. Solids iii. Fecal Matter iv. Oil and Grease v. High PH substances b. Toxic Pollutants i. All pollutants exhibiting acute or chronic toxicity ii. 65 Pollutants have priority for standard setting under 1977 amendment. c. Non-Conventional Pollutants 4. Judicial Review of EPA rule making here is limited. 9Chevron v. NRDC). 5. Technology Based Standards a. 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. b. Best Conventional Pollutant Control Technology i. Can be applied to discharge of conventional pollutants to impose restrictions where “cost reasonable” (generally BCT = BPT) c. Best Available Technology Economically Available. i. Applies to all toxic and non-conventional pollutants ii. Based on ‘best of the best’ performance in category. d. 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 which commenced after promulgation” of final rule setting standards iv. Key to grand fathering – document when construction commenced. e. Best Professional Judgment. ii. The NPDES permit and Pretreatment Programs iii. Regulation of Stormwater Discharges iv. Oil and Hazardous Substance Spills Program v. Dredge and Fill (wetlands) Program vi. Enforcement and Citizen Suit Provisions (16) Environmental Trading Credits a. Offsetting. There are now secondary markets for the purchase of /payment for creation, production or maintenance of green resources to offset pollution. b. Need to destroy 2 acres of wetlands, you can buy 2 or more that have been preserved or created by another company to offset. (17) AIR POLLUTION CONTROL (Enter notes from other computer). a. Definitions: i. NSPS – New Source Performance Standards ii. NSR iii. PSD iv. b. Clean Air Act (See previous notes) c. Title I – National Ambient Air Quality Standards (NAAQS) i. Ozone Non-Attainment. 1. Need until 2020 to meet current standards because too many diesel trucks. 2. Diesal Soot – has PM-10 and PM 2.5 emission issues. a. PM-10 is linkned to cancer, asthma, and other illnesses. b. Regular unleaded gasoline does not have these issues, but is worse on the ozone. ii. EPA has regulatory space to set standards. 1. Lower emission vehicles offset by increased driving. 2. Health based instead of tech based approach. iii. Multi-State Air Quality Problems 1. When CA gives EPA state implementation Plans every 5 years. a. Measurements: i. Sox ii. Nox iii. Co iv. O2 v. PM vi. Lead b. CA still 50% off on particulate matter. c. CARB says look at my geography. i. Agricultural community wants to use open burning. ii. LA and Oakland and SD harbors. iii. CA has 34 Air Quality Control Districts with their own plans to meet air quality standards. iv. States determine health of air quality control reasons within their borders to determine whether, for each criteria pollutant: 1. standard met, or (attainment) 2. standard not met (non attainment) a. 1990 Amend created sub classes for ozone: b. Extreme c. Severe d. Serious e. Moderate f. Marginal g. Sub Classes for Carbon Monoxide and PM h. Serious and moderate. 3. Permits much more stringent in nonattaiinmen areas. d. EPA standards for Non-Attainers as to what constitute a “Major Emitter” changes to be lower (more stringent) when the non-attainment is at a higher (worse) level. e. EPA Holds the bag on Highway funds. i. Lots of multi-state jurisdiction issues. 2. Overview of State Implementation Plan process a. Adopted after reasonable notice and public hearings b. Reviewed for approval /revision and resubmission to EPA c. Can be replaced by Federal Implementation Plans when EPA determines, i. SIP inadequate ii. Or State fails to develop approvable SIPs d. Failure to produce approvable SIP or attin SIP goals has other consequence i. Loss of Fed highway funds ii. Increase in offsets required for new construction. e. Courts have identified limits on EPA approval authority. iv. Whitman vs. American Trucking (P. 486) 1. IMPORTANT CASE 2. AM Trucking saying EPA cannot set standards because it is an unconstitutional delegation. 3. Claimed no intelligible principle and standards could be set arbitrarily. 4. Supreme Court disagreed. Regulations requisite to public health were sufficient, only a very low standard must be met. 5. The idea that an agency can cure an unconstitutional delegation by not exercising the power is circuitous and invalid. d. Control Programs for New Sources i. CAA recognizes existing sources are difficult to retrofit with new emission control tech ii. CaA has two separate programs to address new sources or major modigications of existing sources 1. New Srouce performance Standards (NSPS) applicable to covered sources whatever the attainment status is. 2. ???? iii. NSPS are : 1. Uniform technology based standards of performance applicable to: a. New and modified sources b. That contribute significantly to air pollution. 2. EPA has set NSP for more than 65 source categories (40 CFR Part 60). 3. NSPS triggered by: a. Constructing a new source – where construction is commenced after NSPS proposal is published. b. Making a modification – any change which (significantly) increases the amount of emissions or changes method of operation. 4. NSPS applies regardless of attainment status of a location. iv. 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 Chrevron Deference because there was no ambiguity in the statute (the first prong of analysis under Chrevron Deference). a. Know Chrevron for this Class v. Industry Environmental Petitions Challenged the NSR rule 1. NSR (New Source Review – for Performance Standards) can be PSD NSR or NA NSR. 2. EPA issued a rule in 2002 vi. Major Facilities in areas meeting NAAQS subject to Prevention of Significant Deterioration (PSD) program. 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. Top Down approach limits state flexibility. vii. Alaska v. EPA (P. 504) 1. 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. 2. 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. 3. Issue: Can Alaska determine what is best available control technology? Can EPA overrule that by Administrative order to enforce the PSD program? 4. Hold: EPA wins. EPA can enforce best available tech program because within sphere of regulatory control delegated by congress. 5. This was part of a SIP program, and EPA determined it was not adequate. viii. Exam: 1. Major Source is contemplating replacing or upgrading. 2. Is it a regular repair? a. Take in context of size and scope of what is routine. b. Is it major? c. If major, then modification. . 3. If Modification, then subject to New Source Review 4. Then Performance Standards applies 5. Credits and Best Available Technology Requirements to get to performance standards. 6. Where does PSD come in? ix. Other control programs: 1. Plant Wide Applicability Limits (PAL) – An alternative to NSR. a. 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. b. Bubble only works for sources of the same criteria pollutant. i.e no offsetting sulfer dioxide with carbon oxide. 2. Other Efforts to deal with severity of NSR. a. NSR programs in non-attainment areas may require offsite offsets in same non-attainment area with the same pollutants. 3. Know difference between MACT and BACT x. Accidental Release Requirements e. Title II P. 562 i. Mobile Source Controls 1. Mobile sources contribute hald of oxone causing emissions. 2. Applies to on road and off road sources 3. Regulates certain tailpipe emissions 4. Requires testing and certification 5. Establishes gasoline standards 6. This Where MTBE was developed which helped combustion, but fouled water table. 7. State Implementation PRogram can adopt a CA program, but the fuel content program is mandated by EPA. 8. Exam: a. Client developing a regional shopping center in an area with Ozone non-attainment. b. What may be imposed on you by the lead agency? c. Perhaps a study to see what the net impact on air quality in the area may be? i. If so, may have to implement bike paths, electric buses. f. Title IV i. Acid Rain (NOx and Sox) ii. Goal is to achieve reductions of S)2 and NOx to drop us back to 1980 levels. iii. Applies to 48 Contiguous states and DC iv. Primary Regulated Entities are: 1. Electric Utility 2. Most Fossil Fuel Fired Plants. v. Alliance For Clean Coal v. Bye 1. NOx and SO2 goes into atmosphere, when it encounters rain it turns into acid and descends as acid rain. vi. Two phase cap and trade program for emissions, replacing traditional command and control with market based approach. vii. A fixed number of allowances issued annually to affected sources, sources can use, trade or save allowance each year. viii. Allowance trading is: 1. Nationwide, and 2. Tracked through an electronic record keeping system. 3. Reserve of 300k allowances to encourage energy conservation. ix. CA RECLAIM program. Emissions Trading. 1. Only applicable to South Coas Air Quality Management District. g. Title V – Operating Permits Program i. What you get into after your pre-construction review. ii. Client comes to you and says I’m going to buy a hospital, it’s been shut down for years. 1. It has an HVAC, a fueling station, a power generator, a boiler, a laundry 2. Each source requires a permit, but major sources can have each source folded into one permit. 3. State administered program. One size fits all. Three ring binder applications. 4. Whatever it allows you to emit, that’s what you are entitled to do. 5. So long as the permit has been properly applied for, then no liability for emissions. Permit is a shield. 6. Lots of compliance monitoring. All records kept by permittee can be used as evidence of a violation. 7. h. Title VI Stratospheric Ozone i. 1977 Amendments: i. Expanded regulating emissions from stationary sources. ii. Added programs for prevention of deterioration. j. 1990 Amendments (18) CHAPTER 3: Approaches to Risk Assessment in the face of uncertainty a. Precursors to Modern Regulatory Approaches in the regulation of risk. i. Definition: Criteria Pollutant 1. Old Cases: a. Reserve Mining i. Duluth, Minnesota ii. Mining Being Sued under CWA, CAA, Rivers and Harbors Act, etc. 2. Better to Over-Regulate than to have people suffer consequences of not regulating. Low probability of Harm is enough to give policy space to regulate. b. Modern Approaches i. Risk 1. Assessment – Quantitative Risk Assessment a. Need info regarding the risk of exposure and durations of exposure (See P. 198) b. Look for Acute or Chronic Toxicity and Environmental Effects. 2. Management ii. OSHA Legislation (1971) – Allows OSHA to set standards to adequately assure safety to the means feasible on the basis of reasonable evidence that no employee will suffer impairment on account of regular exposure to a hazard. iii. Standard is reasonably necessary or appropriate. 1. Statute might make such a sweeping delegation of power it might be unconstitutional. c. (19) CHAPTER 8: Environmental Impact Assessment a. NEPA Overview (National Environmental Policy Act 42 USC § 4321 i. Policy Goals: To create and maintain conditions under which man and nature can exist in productive harmony. 1. Always consider anytime an action is taken that would have a substantial environmental affect. ii. Mandate to Federal Agencies: 1. All agencies of the federal government shall include in any activities significantly affecting the quality of the environment a detailed statement analyzing environmental impacts. 2. § 102(c) Look to: a. Short Term vs. Long Term Impact b. What is avoidable vs. Unavoidable c. How iii. Role of Council on Environmental Quality (“CEQ”) 1. Oversee NEPA and set procedural template 2. Promulgate Regulations and Guidelines (40 CFR Parts 1500-1508). iv. Environmental Impact Statement (EIS) Preperation b. Requirement for Environmental Impact Statements i. Threshold for NEPA process – the Environmental Assessment 1. Required to determine if there is Major Federal Action Significantly Affecting the Quality of the Human Environment a. Certain Actions are almost always non-major i. Routine Actions – such as highway surfacing. 2. Consider: Social, Economic, and Psychological impacts and the EIS requirements. ii. Proposals for Legislative Actions by Agencies iii. Other Agency Action – Typically Includes 1. Highways and Transportation Projects 2. Power Plants 3. Public water works 4. Housing projects 5. Public BUIldings c. Preparing the EIS i. Who Prepares: Lead Agency 1. Cooperating Agencies will weigh in. ii. Requirements of Formal Compliance & NEPA equivalency procedures iii. EIS contents – determined in “Scoping Process” 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. 5. Analysis: a. Project proposal b. Environ. Assess. ->:Substantial Impact? c. If Yes, EIS i. Programmatic, or ii. Site Specific iii. d. If No, FONSI (Finding of no significant impact) d. CEQA (State??) i. Project -> IS -> Subst. Impact? 1. Yes, EIR 2. No or mitigated, Negative Declaration. e. Is the EIS adequate – Challenges to the NEPA process 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. 4. f. Calvert Cliff’s Commission Case: Atomic Energy Commission wanted a EIS plan reconsidered by NEPA. g. For the Exam: The environmental assessment would turn up psychological or environmental impacts. h. Kleppe vs. the Sierra Club i. Kleppe is the secretary of the department of interior ii. Department of Interior is going to issue a permit for mining. iii. A number of different approvals have been given. iv. Three studies had been completed. v. Sierra Club says they want a study on leasing the whole area done, not just each segment. They want to know the cumulative effects. vi. This is pre-NEPA so Kleppe Wins. i. Depart. Of Transportation Case i. Narrow reading of what NEPA would mandate ii. In wake of NAFTA, agency laws forth Safety Inspection Requirements, Insurance Requirements for Mexican trucks coming across the border. iii. Action Group challenges based on failure to do a satisfactory EIS (they had done a programmatic EIS). iv. The Agency is mandated to set forth regulations by law, and it is for financial assurance, which is not an environmental issue. It is also a mandate by statute. v. (20) Exam a. Identify where more facts are needed to make an analysis. b. Contemporary Example Cases: (21) a. San Francisco Bay Keeper vs. Cargill Salt Division (9/06) i. SF claims Cargill’s evaporation ponds are either wetlands, waters of the US, etc because they abut the SF bay and the slough. ii. Clean Water Act Case. iii. Hinges on question of fact as to whether water from the ponds is leaking into the slough and then the bay. iv. Tests: Continuous Connection & Significant Nexus Test 1. Riverside v. Bayview Homes standard b. SAFE vs. c. Pacutis v. Tech Cominco Metals Limited. i. CERCLA case ii. Tech is a major mining company. Dumping slag and residues from mining processes into Columbia river in Canada. iii. This slag winds up lining a stretch of the river, creating deposits of bad actor chemicals that threaten humans and wildlife. iv. EPA took notice. v. US statutes don’t normally have an extra-territorial reach. vi. There has been (a) A release (b) of a hazardous substance, (c) from a facility, (d) that is hazardous to human health. vii. EPA issued a unilateral admin order under CERCLA to Tech to clean up. Tech does nothing. 1. EPA has 4 options when aware of a threatened or actual release: a. Clean up themselves b. Order the potentially responsible parties to do it c. Sue the potentially responsible parties for an injunction. d. Sue for cost recovery after clean-up up. 2. Indian Tribe sues EPA to make them act. a. Go After tech as an entity that arranged for disposer. The facility is the banks of the Columbia river, but the disposer is Tech. b. 4 people can be liable: i. Owners Operators ii. Current Owners /Operators iii. Persons who arrange for disposal iv. Transporters. 3. Strikers Bay Neighborhood Council: NEPA case a. Hard look at mitigation measures. b. Major federal action having a significant adverse impact to the environment. c. Then the evaluation the agencies have to take will take into account: i. Physical and mental effects. 4. Cleppy v. Peterson 5. IS EIS Adequate? a. Are alternatives identified? b. Is the analysis comprehensive? 6. How Well does NEPA work? a. In context of NAFTA, WTO ordered US to open up the highways. 7. Exam Question a. Proposed Nuclear Plant i. Major Federal Action…Yes b. EIS identified some bad things. c. During the hearing consumer groups bring up some issues. d. This is Vermont Case. Sup. Ct. said don’t have to consider every possible outcome, but all conceivable. Stakeholders have a duty to bring issues to the attention of the agency. 8. Marsh v. Oregon Nat. Resources (P. 849) a. They’d already done an EIS that had been approved. Took 9 years. b. All of a sudden a state agency pops up and says we think there is some more data. c. 9 years later in Supreme Court. d. Court Holds: No bright line in NEPA that agency has to consider a supplemental EIS every time someone comes up with new data, but it’s a good idea. e. If agency says the book is closed we will defer to agency per Chevron Deference. d. Chapter 10: Environmental Enforcement i. Monitoring and Detecting Violations 1. Feds under funded to do this. 2. Compliance monitoring is part of every permit. 3. There is whistle blower protection 4. Bounty Hunder Provisions (CAA sec. 113 (f) and CERCLA sec. 109(d) and CA prop 65). 5. Inspections, Routine and otherwise. a. Can you refuse based on 5th amendment rights? Corporations don’t have such a privilege, but individuals can refuse to answer questions on the grounds it might incriminate you. ii. Enforcement Authorities and Policies 1. There are 300-400k NPDES permits. With quarterly reporting of 24 hour monitoring. 2. Agencies rely on self reporting and selective audits. 3. Enforcement Options: a. Admin i. Clean Water Act fines up to $135k without trial by jury and no discovery. Con law issue. ii. 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. b. Civil c. Criminal 4. 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. e. Hold: ?? 5. 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. b. There are additional rules and over-filing rules in this case. c. EPA and State can both prosecute?? No bar? 6. Post Harmon Industries decisions regarding “over filing” a. EPA and Justice Department position b. Court decisions. iii. Criminal Enforcement 1. iv. Standing and Citizen Suits to enforce Legislation. 1. Three types of private citizen enforcement: a. Suit to enforce Federal Environmental Laws b. Suit to force agency to act c. Individuals acting as private attorney general’s and suing other private parties licensed by the government. 2. Standing: The Threshold Issue – Sierra Club v. Morton a. US government awarded contract to Disney to develop park in the forrest. b. Sierra Club thought this was a bad idea. c. 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. d. Modernly, under NEPA could challenge the EIS. 3. Post Sierra Club: a. 4-fold Test Arises (Must meet all to have standing) i. Actual or threatened injury in fact to plaintiff ii. Injury traceable to challenged federal agency action. iii. Injury redress-able by judicial action (i.e. justicable) iv. Injured interest is “within the zone of interest” protected by the statute allegedly violated. 1. i.e. raising cattle not within zone of clean water act. b. Lujan v. Defenders of Wildlife (1987) See. P. 996 i. A person who sees an animal or who loves an animal does not have standing to sue on behalf of the animal. Must have a sufficient nexus. 1. Own Property 2. have an investment in the area 3. Infliction of Emotional Distress. a. Must have skin in the game. 4. Or a NEPA claim. ii. Standing is not an ingenious academic exercise in the conceivable. iii. Standing for businesses and the zone of interest test. 1. 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. c. After this case the courts continued to wrestle with issues of standing. Feeling the bar was raised in Lujan. There is a long post case history, Seattle Society, Resource Limited Inc, where the plaintiff did have standing. i. The one commonality is they are all 9th circuit cases. 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. 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 1. EPA may waive this for self reporting. ii. The economic Benefit component. e. Theories of Liability i. Strict Liabiltiy 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 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. f. Exam is comprehensive. Open Book. Open Note. (including power points). No hornbooks. i. 2 Essay Questions (1 hour each) ii. 1 hour multiple guess (cruel and minute). 30 questions. Mini factoids. iii. NEPA will only be a few questions, probably multiple choice. 1. Did they identify alternatives and sufficiently analyze?