Mortgage Agreement, India by lbg52283


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									Comprehensive Emergency
     Response and
 Compensation Act 1980
   42 U.S.C. § 9601 et seq.
            Love Canal

July 2002       Environmental Law   2
            Midnight Dumping

July 2002        Environmental Law   3
            Recycle Horrors
• A Recycler accepted waste when
  his incinerator wasn’t working
  and piled up the wastes that later

July 2002        Environmental Law     4
            Times Beach, MO
• 1983, oil contaminated with
  polychlorinated biphenyls (PCBs)
  was spread on roads to keep dust
  down; thus, residents were
  exposed to high levels of PCBs
• Area was on flood plane and
  annually was flooded
• Poor community

July 2002        Environmental Law   5
Sometimes your friends do
 you no favors
• CERCLA would not have passed
  when it did, unless the incoming
  Republicans pushed it through so
  they would not have to deal with
  it in their administration.
• Dropping Victims’ Compensation
  was the compromise that passed
  the bill.
July 2002     Environmental Law      6
      Pressure for Superfund
•   Love Canal
•   Times Beach
•   ―Midnight‖ Dumping
•   ―50,000‖ sites survey
•   Anti-Administration Pressure
•   Need for off budget financing

July 2002        Environmental Law   7
            Contractor’s Dream
• Superfund
  created a $1.6
  billion fund to
  remediate priority
• Estimates of
  30,000 to 50,000
  sites in the
  United States

July 2002         Environmental Law   8
• The chemical industry was
  required to pay a feedstock fee to
  cover ―orphan sites‖ where no
  owner could be found.
• Where owners could be identified,
  the ―Polluter Paid.‖

July 2002     Environmental Law        9
            Legal Principles
• Joint, Strict and Several
     – Overzealous enforcement
     – Poorly constructed Risk
       Assessments (Barbara Blum
       memorandum of a quick and dirty
     – Over-interpretation
• Embodied direct extension of
  common law principles
July 2002         Environmental Law      10
    Created New Industries
• Remediation Contractors
• Risk Management Experts to
  evaluate sites before purchase
• Legal bonanza – the full
  employment act for lawyers.

July 2002     Environmental Law    11
   From Mortgage Agreement
         for a House
• 21. Hazardous Substances. As used in
  this Section 21: (a) ―Hazardous
  Substances‖ are those substances
  defined as toxic or hazardous
  substances, pollutants, or wastes by
  Environmental law and the following
  substances: gasoline, kerosene, other
  flammable or toxic petroleum products,
  toxic pesticides, and herbicides,
  volatile solvents, materials containing
  asbestos or formaldehyde, and
  radioactive materials;

July 2002       Environmental Law       12
            Cont. from Mortgage
(b) ―Environmental Law means
  federal laws and laws of the
  jurisdiction where the property is
  located that relate to health,
  safety or environmental
  protection; (c) ―Environmental
  Cleanup‖ includes any response
  action, remedial action, or
  removal action, as defined in
  Environmental Law; and
July 2002         Environmental Law    13
            Mortgage Continued
(d) An ―Environmental Condition‖ means
  a condition that can cause, contribute
  to, or otherwise trigger and
  environmental cleanup.

Borrower shall not cause or permit the
 presence, use, disposal, storage, or
 release of any Hazardous Substances,
 or threaten to release and Hazardous
 Substances on the property. (Cont.)

July 2002         Environmental Law        14
            Mortgage Cont.
Borrower shall not do, nor allow anyone
 else to do, anything affecting the
 Property (a) that is in violation of any
 Environmental Law, (b) which creates
 an Environmental condition, or (c)
 which, due to the presence, use, or
 release of a Hazardous Substance,
 creates a condition that adversely
 affect the value of the property. . . .

July 2002        Environmental Law          15
    National Contingency Plan
• A plan to respond to oil, hazardous
  materials releases
• Method to investigate facilities
• Cost estimate methodology
• Risk Assessment methodology
• Authorities for state, federal and local
• Equipment storage
• Assignment for cleanup responsibility
July 2002        Environmental Law           16
            What is Different?
• SUPERFUND legislation differs
  from other environmental statutes
     – Principal intent is to remediate
       contamination that has already
     – Other statutes impose standards on
       current activities to prevent release
       of contamination
     – Is not delegated to the states
July 2002          Environmental Law           17
            Principle Provisions
• §101. Definitions          • §111. Superfund
• §103. Notification         • §113. Judicial
    Requirements               Review and
•   §104. Response             Contribution
    Authorities              • §116. Cleanup
•   § 105. National            Schedules
    Contingency Plan         • §121. Cleanup
•   §106. Abatement            Standards
    Orders                   • §122.
•   §107. Liability              Settlements
July 2002          Environmental Law             18
            National Priority List
• Develop a Hazard Ranking System
  that is applied to determine the
  National Priority List for site
• Allows petition to the President to
  have an initial risk assessment
  made at site

July 2002           Environmental Law   19
            Remedial Investigation
            (Assess extent & nature of contamination)

                 Feasibility Study
                (Examine & Evaluate alternatives)

                 Risk Assessment
                (Provide Quantitative Evaluation)

                 Remedial Design
                   (Develop Remedial Action)

                  Remedial Action
                      (Correct Deficiency)

July 2002               Environmental Law               20
            Over-riding question
• How Clean is Clean?
     –   Is it return to pristine?
     –   Reasonable Risk?
     –   Insignificant Risk?
     –   Acceptable Risk?

July 2002              Environmental Law   21
            Legal Issues
• Stingfellow Site >250 lawyers
  were forced to meet in a school
  gymnasium to mediate issue of
  proportional share of cleanup
• Constitutionality of paying for
  past actions that were legal at
  the time
• Transaction costs

July 2002      Environmental Law    22
    Has Superfund Worked?
• Joint and several liability results in unfair
  allocations of financial responsibility.
• Cleanup standards are too stringent: one-size-
  fits-all health-based standards are
  inappropriate and impair productive uses of
• A litigation-driven system funnels too much
  CERCLA money into transactions costs and
  too little into site cleanup
• Where EPA does have discretion, remedies
  are uneven from site to site, often driven by
  the effectiveness of community lobbies.

July 2002          Environmental Law          23
 Superfund Amendments and
  Reauthorization Act 1986

• Increased the trust fund to $8.5
  billion over five years.
• Expanded to include Title III,
  Emergency Planning and
  Community Right-to-Know Act

July 2002     Environmental Law      24
    SARA Title III or EPCRA
• Title III of the Superfund
  Amendments Act of 1986 us the
  Emergency Planning and
  Community Right-to-Know Act
• Government response to the
  chemical sabotage in Bhopal,
  India 3,800 died as a result of the
  leak of methyl isocyanate

July 2002      Environmental Law        25
            Union Carbide Facility,
                Bhopal, India

July 2002           Environmental Law   26
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July 2002   Environmental Law   28
July 2002   Environmental Law   29
     How the Law Happened—
       Not the Usual Way
• The Chemical Manufacturers
  developed CAER® and announced in
  about one month after the Bhopal
  release. (Jan. 1985) The EPA used the
  CMA framework to develop their own
  regulations (March 1985)
• Congress enacted SARA Title III (1986)
• The UNEP issued APPELL a few years

July 2002       Environmental Law      30
            EPCRA Subtitles
• Subtitle A—
     – Requires Development of
       comprehensive local emergency
       response plans for chemical releases
       and reporting requirements for
• Subtitle B—
     – Community Right-to-Know making
       information available to the public
July 2002          Environmental Law         31
               Subtitle A
• Mandates State Emergency
  Response Commissions (SERCs)
     – SERCs designate ―emergency
       planning districts‖
     – Local Emergency Planning
       Committees, e.g., Arlington, VA LEPC

July 2002          Environmental Law      32
                  LEPC Plans
• Must include:
     –   Covered facilities and transportation routes
     –   Responsible personnel
     –   Notification procedures
     –   Methods for estimating released and areas
         like to be affected
     –   Emergency equipment and facilities
     –   Evacuation plans
     –   Training
     –   Exercises
July 2002               Environmental Law          33
   What went wrong and right
           on 9/11
• Medical plan just put in place
  saved lives
• Communications between
  government agencies horrid
• Evacuation and emergency routes
  were a problem
• Response appropriate,
  coordinated, and effective
July 2002    Environmental Law   34
     Substances and Facilities
• If it contains a quantity of an
  extremely hazardous substance
  which exceeds threshold
  quantities established by EPA
• LEPCs may add chemicals to the
  list for their area

July 2002     Environmental Law     35
   Notification of Releases
• Once LEPC is established,
  facilities within that jurisdiction
  must notify it of most releases of
  Reportable Quantities (RQ)
• Water was a reportable incident in

July 2002      Environmental Law    36
  Hazardous Substance Lists
         for MSDSs
• Owner must maintain or submit
  copies of MSDSs for all hazardous
  materials on the site
• They may submit the MSDSs or a
  list of MSDSs to the LEPC, the
  state commission and their Local
  Fire Department
• The LEPC may request specific
  MSDSs if a list is provided
July 2002     Environmental Law   37
            Hazardous Chemicals
• Facility owners who must submit
  MSDSs or hazardous chemicals
  lists must also supply an
  inventory form covering those
  chemical for which MSDSs are
  maintained and which are present
  in excess of specified threshold
  reporting quantities.

July 2002          Environmental Law   38
• Tier I information is submitted to
  the LEPC, state commission and
  local fire department annually
     – Estimated daily and maximum
       quantities of hazardous chemicals
       present during the preceding year
       and general location
• Tier II — specific information to
  be provided upon request.
July 2002          Environmental Law       39
            General Public
• The general public may request
  specific information through state
  or local officials and must be
  generally granted but may be
  denied if the facility stored less
  than 10,000 pounds of the
  material in the previous year.

July 2002       Environmental Law   40
       Toxic Chemical Release
          Inventory Forms
• Owners/operators of facilities with ≥ 10
  employees must submit annual form
     – Name, location, and principal business
       activities at the location
     – An appropriate certification
     – Whether each toxic chemical is
       manufactured, processed or otherwise
     – General category of use for each chemical

July 2002            Environmental Law             41
       Toxic Chemical Release
       Inventory Forms (cont.)
• Estimate of the maximum amounts of
  each toxic chemical present at the
  facility at the any time during the
  preceding year
• Waste treatment or disposal methods
  employed for each waste stream and
  an estimate o the treatment efficiency
  typically achieved
• Annual quantity of each toxic chemical
  entering each environmental medium

July 2002       Environmental Law      42
            Public Data Bases
• Emergency Response Plans, MSDSs or
  hazardous substance lists, and Tier I
  inventory forms must be made
  available by LEPCs for public
  inspection at a designated location
  during normal business hours.
• EPA must make TRI data available
  through a national database on a cost
  reimbursement basis.

July 2002         Environmental Law       43
   Trade Secret Protection
• Facility owners may withhold a
  specific information if it is a
  protected trade secret
• Specific chemical identities must
  be provided to health
  professionals, nurses, and doctors
  to provide medical diagnosis or
  treatment or for preventative
  purposes under this title

July 2002     Environmental Law    44
• EPA can enforce facilities to
  comply provisions, after federal
  district court order with up to
  $25,000 per day fines
• A civil fine of up to $25,000 per
  violation for failure to report spills
  after a court order
• Repeated violations for reporting
  failures can be $75,000
July 2002       Environmental Law      45
 E.O. 12856 3 August 1993
• Requires federal facilities within
  the territorial United States to
  comply with:
     – The Pollution prevent Act of 1990
     – Emergency Planning and Community
       Right-to-Know Act (EPCRA) of 1986

July 2002         Environmental Law        46
• In light of homeland security
  issues, how much information on
  emergency response plans, drill
  results and worst case scenario
  analyses should be publicly

July 2002     Environmental Law     47

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