envtl law ol - appel - uga 2011

8/2/2019 Envtl Law OL - Appel - UGA 2011

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I. Common Law (PA not obsolete... LIM each have their own unique probs NOT great for things as amorphous as climatechange)

A. Nuisance (LIMs (1) NOT where dumping on own land (2) requires proof of legal injury)i. ELEMENTS

a) unrzble interferenceb) use/enjoymt of landc) (NOT trespass)

d) LIM - Standing (1) causation (2) dist, public v. private nuisanceii. Public v. Private Nuisance

a) public nuisance either GOVT or individual IF special damage (i.e., more severe/distinct than the public harm)

MO v. IL FACTS Chicago dumping sewage into Lake Michigan cholera dumped instead into

Mississippi Typhoid

CT - NO injunction: (1) in equity here, unclean hands b/c dumping too (2) causation germ theory just

developing (3) hghtd STD to enjoin state actions

dist, TN Copper State may obtain injunction to prevent damage to its residents in public nuisance action

(even if private right wouldn't be available)

FACTS sulfuric fumes destruction of forests/crops

CT (1) state sovereignty (parens patriae quasi-sovereign capacity) CT has less latitude in

balancing equities (i.e., some deference) where action agst a private entity (s.Dist decided by S.Ct less pressure to find for TN)

s.Dist unlike MO v. IL, NO unclean hands + still had political accountability b/c GA citizens also

worked in the plants

Public nuisance and Climate change CT v. America Elec Power (2011) CT held CAA + EPA actns

displace any federal common law rights NO nuisance

b) private nuisance private citizens who have individual claims

(1) Walsh (1999) unreasonableness and utility

D's ARG - ureasonable is dependent on the context, P must show not outweighed by plant's utility...

Ct more concerned with impact of the activity than its utility i.e., utility analysis concerned aboutboth the general activity and its consequences not just about whether it cannot be reduced/removed,also about whether those harmed are being compensated

(2)Petsey (2002) reasonableness should be measured agst the impact

seems to spell out Walsh more clearly..

private r2d ELEMENTS : (1) invasion of use/enjoymt (2) D's conduct a proximate cause (3) (a)invasion was intentional/reckless OR (b) invasion unintentional + conduct negligent/reckless

private P+K ELEMENTS : (1) intent to interfere w P's use/enjoymt (2) interference suffered was kind

intended (3) intereference was substantial (4) unreasonable

...unrzbl [analyisi] should be made in light of the fact that some level of interference is inherent in

modern society

Petsey FACTORS: (1) nature of BOTH interference and use/enjoymt invaded (2) nature, extent, duration

of interference (3) suitability for the locality of both the interference + enjoymt/use (4) whether D takingall feasible precautions to avoid (5) and other factors...

iii. REMEDYa) TRAD (FILL)

B. Trespass :i. ELEMENTS

a) intentionalb) unlawful intrusionc) onto property

ii. LIM (1) requires proof of actual and substantial damages (2) historically particles were not reachable (i.e., NOTsufficient for physical intrusion) (3) requires intent

C. Strict Liability

i. PA foreseeability/proximate cause reqt for S/L? SPLIT whether to require it or not...i i. ELEMENTS

a) unusually or inherently dangerous (materials) (in the location)iii. NOTES

a) Ventron (1983) S/L on purchasers of 40 acre farm w/ mercury seeping into ground


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b) post-Ventron SOME impose foreseeability reqt (moving back toward negligence)iv. RECALLRylands v. Fletcher non-natural v. natural use of the land?

a) non-natural no matter how careful could be S/L

v. Branch v. Western Petroleum more MOD - (FILL)a) INT nuisance P may have claim for both

Nuisance more concerned about nature and relative importance of interests

(NOT nature of the conduct)

S/L concerned with nature.. unnatural use? Ultrahazardous?

b) Two grounds for S/L : (1) toxic pond was a abnormally dangerous/innappropriate use given proximity to Branches' property OR

(2) unduly dangerous to Branches' use of their waterc) Rat in (effect) appropriating neighbor's property to one's own use polluter can and should assume the costs of

the pollution as a cost of doing business rather than charge the loss to a wholly innocent party

vi.NOTES who was there first? Not dispositive.. Economics - Ct making Ds internalize the cost... Punitive damages available where proof of recklessness or willfulness

D. Remediesi. Injunctions

a) LIM only where the cost of the environmental damage > the benefit of the polluting activitiesii. (FILL?)

E. Common Law in Statutory Era

i.Oullette (CT 1987) - CWA preempts states common law actions agst polluters (INT GA v. TN Copper, MO v. IL)

a) FACTS VT landowner alleged nuisance by NY paper mill due to mill's stench.ii. LIM (INT) most statutes have savings clause preserving CL actions BUT some elements do not survive

F. Environmental Justice -i. PROB envtl probs often disproportionately visited on disadvantaged cmties

a) BOTH polluted sites and access to envtl facilities (e.g., natl parks, recreational)b) How many areas can these types of claims be forwarded?

EX, Atlanta Olympics reduced driving and reduced reports of asthma...II. CL LIMs Legislative remedies: OVERVIEW

i. Hx,a) used to be that envtl considered a local problemb) but federal laws go back pretty far smoke + sootc) but also lack of early scientific data linking exposure and disease... (still a problem to some degree in drawing

lines)

d) late 60s 90s surge in federal regulations (bi-partisan support for) strong economy can afford to do this stuff

B. Who should regulate ?i. States? i.e., local...

a) PRO they're on the frontline, know the problems, can be more flexible w industryb) CON race to bottom don't want to set higher bar for industry b/c might relocate

ii. Fed ?a) PRO uniformity (i.e., fight one battle instead of 50) more even playing field re race to bottom concerns

predictability industry better able to calculate costs/tailor their activitiesb) CON still have race to bottom just intl scale LIM commerce clause/federalism

C. What regulatory methods?

i. Command and control ?ii. free market environmentalism ? i.e., some govt involvement bu market-like incentives to encourage environmental

protectiona) Assumption efficient mkt creates an optimal amt of resourcesb) PROB tragedy of the commons individuals can get a lot of benefit by externalizing costs on envrt/society

REGS to force internalization

Where are regs most appropriate? Mkt failure considerations...

(1) asymmetric info

(2) common pool resource probs

(3) public goods

Options for dealing w mkt failure ?

(1) incentives - (e.g., tax breaks, grants, pollution taxes, prizes, reputational)

Crit run risk of giving money TO polluters ( negative + positive?)


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(2) public reporting community reporting act community activitism e.g., protests, boycotts etc

(3) tradable permits cap and trade systems e.g., SO2

(4) barrier to entry make sure ppl who enter the mkt can handle the probs

D. How should the statute be designed ?i. NOW separate one for water, air, contamination, mgmt...

a) Crit not much flexibility where regulated entity is REALLY good in one area, but not so much in another

E. How do you determine the statutory criteria ?i. (FILL)ii. Duty to future generations?iii. How do you value a natural resource?

F. How should it be enforced ?i. Who ?

a) Should fed or state enforce?b) Can private citizens? standing?

ii. What remedies ?a) Injunctionsb) civil penaltiesc) criminal

iii. Alternatives ?a) (see regulatory control methods)

iv. (FILL)III.Contamination - CERCLA - Polluter Pays

A. Introduction Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 42 USC 9601-9662(1980).

i. Hx : Passed quickly at end of Carter => notorious drafting problems.ii. PURPOSE tort-like, backward look statute to enable clean up of hazardous waste sites and respond to releases/spills.

Provides a means of reaching a wide range of liable parties, to account for risk of bankruptcy or abandonment, forcleanup costs or financing govt cleanup in the case of orphan sites.

iii. Two types of response: Remedial v. Removal Act is remedial i.e., focuses on past activities => imposes liabilityfor past and future cleanup costs

a) CONTRAST, RCRA's cradle-to-grave mgmt of present hazardous wasteb) APP cts typically are deferential to agency characterization at remedial v. removal

c) Where it makes a difference : 113(g)(2) when SOL triggered (1) removal at completion (2) remediation at initiation

RECALL Hearthside triggering of SOL detns the pertinent ownership under107(a)(2)

iv. Creates the Superfund - used to finance the govt's reponse actions, pay claims from the responses of private partieswho are not liable and compensate the federal and state govts for damage to natl resources.

v. ELEMENTS:

a) is the site a facility 101(9)?b) responsible party under 107(a)?c) release or threatened release 107(a), 101(22)?d) Caused P to incur response costs?e) LIMs

NOT for petroleum-related (101(14))

de micromis exemption (107(o)) (1) applies only to arrangers/transporters

(2) who can demonstrate that total amt of material containing hazardous substances

(3) that the person arranged/transported disposal of

(4) is LESS THAN 110 gallons (liquid) OR 200 lbs of solid materials

LIM - (subject to Admin modification)

vi. Liability -a) Strict/NO causation reqt (LIM - arrangers judicially created LIMs)

liability 101(32) = same as CWA (INT) INTERP as S/L subject to LIM defenses (i.e., act of God, act

of war, act/omission of 3d party) ( 107(b))


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NO causation reqt.... (whether D caused the harm is material only when allocating...)

c.f., CWA etc Need not show a nexus or IC hook

Rat given (1) synergistic and migratory capacities of leaking chemicals (2) infeasibility of tracing to a

source requiring would undermine the statutory goals of facilitating prompt cleanup

NO need to worry about foreseeability/proximate causation reqts...

intervening force relieve? (2d Cir) Ct said still LIABLE

b) Retroactive i.e., applies to activities that pre-date statute's 1980 enactmentc) Standing - fed govt, states and private (??)d) Recover cleanup closts from parties responsible for generation, transportation or disposal of hazardous wastes

( 107(a))

e) Jt/several how do you allocate?

Divisible ?

Favored IF: (1) confined? (C-A: reason to think (a) migrated.., or (b) synergistic) (2) different types of

technologies to cleanup? e.g., much easier to determine cost of cleaning up based on the tech necessaryfor the pollution the D is actually responsible for (C-A: amalgumated)

If YES rzbl basis for apportionment?

ARG based on: (1) amt of time (2) percent of property used (3) how much volume contributed (4)types of chemicals

s.Dist might matter what kind of PRP? (i.e., passive v. direct contributor)

Burlington more passive (RR) but also arguably didn't provide rzbl basis for apportionment

since scorched earth theory

Burlington Northern TEST is the harm divisible? If YES apportion

PHx trial ct found Shell liable as arranger, apportioned the amt due to RR based on % of: land, time,

chemicals involved

on review from trial ct's apprtnmt (finding of fact) clearly erroneous STD

s.Dist not all harms divisible, D's burden to prove rzbl basis for aprtnmt

Reasonable basis CT willing to apportion despite RR's scorched earth all or nothing liability theory

in ct did not enable ct to have rzbl basis (BUT as much was discernable)

D's burden to show reasonable basis for apportionment...

Burlington - equitable consideration - Crit if RR doesn't foot the bill then taxpayer will..

s.Dist ONLY appropriate at contribution phase RECALL - polluter pays purpose of statute...

Post-Burlington (only 2 yrs ago, so not clear) BUT creates incentive to litigate now that there seems

to be more room for allocation/reduced liabilityvii. Response costs

a) NOT (private) medical monitoring (e.g. cancer clusters)b) YES enforcement costs (including cost of oversight/overhead indirect cost of administering ( Govt atty's fees

covered?))

c) Attys fees ?

Keytronic depends on whether the enforcement activities in 101(25)'s defn of response were intended

to include atty's fees

Gen Ru : cts will not award private litigatns attys fees absent explicit statutory authorization

HLDG private atty's fees not generally available under CERCLA

BUT activities closely tied to the actual cleanup - e.g., ID'g PRPs that constitute a necessarycost of response may be

Rat since that type of work might also be performed by others e.g., engineers, privateinvestigators

viii. Provision breakdown:

a) 42 USC 1 01: DEFINITIONS

(1) facility - 1 01(9)(B) : any site or area where a hazardous substance has been deposited, stored,

disposed of, or placed, or otherwise come to be located

APP - interpretted broadly NEPACCO (8th Cir 1986) - virtually any place at which hazardous wastes

have been dumped, or otherwise disposed of.


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LIM NOT a consumer product in consumer use or any vessel

(2) hazardous substance - 101(14) INT anything designated as such under CWA, CAA, SWDA,

CERCLA, TSCA

(3) release - 101(22) any spilling, leaking, pumping, pouring, emitting, emptying, discharging,

injecting, escaping, leaching, dumping, or disposing into the environment including abandonment ordiscarding of barrels, containers and other closed receptacles

LIM NOT workplace exposures, emissions from engines, nuclear incidents, fertilizer

Shore Realty includes seeping, leaking from previous releases

Fertilizer Institute (DC Cir) held that EPA failed to demonstrate that there was actual contact betn the

hazardous materials in open containers and the surrounding environment

release reportable qty only relevant for103 reporting reqt NOT for107 liability

PA s.Dist EPA failed to characterize it as a threat

(4) liability 101(32) = same as CWA (INT) INTERP as S/L

(5) disposal - 101(29) INT - incorporates by reference RCRA's defn (103(?))

(6) contractual relationship - 101(35) includes but not limited to land contracts

UNLESS acquired after disposal and one of the following

(1) did not know or have reason to know (of disposal/release/threat)

INT 101(35)(B) - reason to know AND 101(40) - bona fide purchaser

(2) govt entity acqd by escheat, or involuntary transfer, ED

(3) D acquired by inheritance or bequest

(7) bona fide purchaser - 101(40) to be excluded must show by preponderance: (1) disposal was before

acquisition (2) no reason to know/inquiries/reasonable steps to prevent/avoid (INT if residential ornoncommercial inspection + title search w/ no basis to reveal OK)

b) 42 USC 1 02: designation of hazardous substances

102: Admin shall promulgate such addl designations of hazardous substances (in addition to 101(14)

RECALL defn incorporates substances designated as hazardouse under other environmental statutes) AND setreportable quantities

c) 42 USC 1 03: notification reqts for releases (INT violation criminal penalties)

103(a): Any person in charge of a vessel... shall, as soon as he has knowledge of any release... equal to or

greater than those determined pursuant to [102], immediately notify the National Reponse Center establishedunder the CWA

LIM/INT - (other than a federally permitted release)

Fertilizer Institute - release reportable qty only relevant for103 reporting reqt NOT for107 liability

NO reqt for reporting when there is mere threat of release

Crit CERCLA's defn of release includes abandoning/discarding of closed receptacles containinghazardous waste

d) 42 USC 1 04: removal/remediation by fed govt

104 allows govt to undertake cleanups

INT PRPs now often the ones to do the cleanup since might end up saving money ultimately can seekcontribution from others..

e) 42 USC 1 05: NPL and hazard ranking system promulgation (PA didn't really get into....)

105 authorization for EPA to establish NCP (National Contingency Plan) part of which is the NPL

(National Priority Plan

designates Superfund Sites (i.e., most dangerous) and ranks according to priorities

NCP overall plan for cleanup activities

NPL list prioritizing sites to be cleaned

f) 42 USC 1 06: addl abatement actions and cleanup orders

106 EPA has power to order anyone to cleanup, even if not a PRP

Party can then sue to get $ back...

g) 42 USC 1 07: PRPs scope of liability/defense

107(a) covered persons; scope...

PRPs Who are they ?:


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(1) (current) o/o

DEFENSES (gen) 107(b) OR (specific) contiguous 107(q) criteria met by

preponderance

Shore Realty doesn't matter that they didn't release b/c S/L

Rat otherwise there'd be sham conveyances to avoid

LIM prior o/os ONLY liable if had at time of disposal (ATTN NOT release)

operators - is a parent corporation liable for the acts of its subsidiary?

Bestfood - 2 ways derivative OR direct liability

derivative (i.e., PCV) very hard usually only if a sham

MUST show - corporate form was abused (i.e., not merely that the structurewas used to limit liability)

direct (alt route need not PCV)

BestfoodTEST:

(1) actively participates in AND

(2) exercises control over

(C-A: NOT just the site, must also be some aspect of waste disposal)

YES where parent corp officer specifically handling waste disposaloperations

NOT merely wearing multiple hats, dealing with budget/contracts

APP - spending too much on waste disposal prob YES

spending too much NO

Corporate Successor Liability

mere continuation test successor is not liable for activities of an acquired corp

UNLESS:

(1) assumes liability

(2) trxn amts to consolidation/merger

(3) trxn is fraudulent/intended to provide escape from liability

(4) purchasing corp is mere continuation of the selling co

101(20)(A) - secured creditor exemption: owner or operator does not include a

person who, without participating in the mgmt of a vessel or facility, holds indicia ofownership primarily to protect his security interest in the vessel or facility.

Purpose to prevent banks from being liable, merely as a result of lien on mortgage

etc

SPLIT on scope of this exemption:

US v. Fleet Factors (11th Cir 1990) liable where participating in financial mgmt to

a degree indicating a capacity to influence corp's treatment of hazardous wastes i.e., could affect (and NOT actual mgmt of hazardous waste or involvement withday to day)

In re Bergsoe Metal Corp (9th cir 1990) mere capacity or unexercised right to

control facility operations does not take creditor out of scope of exemption

(2) o/o at time of disposal

Heathside (9th cir) - intermediary owner - when is time of ownership determined for

statute's purposes? costs accrued

Ct 107(a)(2) - disposed no defn... (huh? 101(29) incorporates RCRA's...)

INTERP - release is more passive disposed is a release, opposite not necessarily

true...

s.Dist Hearthside knew about contamination when they bought, they're only worried

about avoiding costs for contiguous contamination

(107(q) those owners are exempt someone has to pay)

two choices for determining time:

(1) when liability costs accrued

(2) when recovery action filed

Ct when costs accrued...


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Structural 113(g)(2) - SOL triggered by (1) completion of removal OR (2) initiation

of remedial

Rat best aligns with CERCLA's purposes (1) encourage cleanup without delay (2) early

settlement

NOTES: intermediary owner SPLIT turns on disposal - 101(29) incorporates RCRA

defn (103(?))

SOME defn does not require human participation 107(a)(2) even where seeping

from past disposal OTHERS distinguishes release v. disposal disposal not passive migration (rat -

innocent owner defenses...)

(3) arranger (PA perhaps largest group/deepest pockets)

107(a)(3): persons who by contract, agreement, or otherwise arranged for disposal or

treatment, or arranged with a transporter for transport for disposal or treatment of thosehazardous substances

Originally NO causation, negligence, minimum reqt...

BUT judicially created LIMs...

Monsanto (4th Cir) govt need NOT prove causal nexus betn waste sent and resulting harm to

render arranger liable

Montalvo - (11th Cir 1996) arrangers requires MORE than mere contractual relationship

FACTS airstrip contaminated by pesticides landowners liable? TEST requires some kind of affirmative action (C-A: possible to infer exercised some

control)

FACTORS

(1) if SALE was transfer useful v. waste product? (APP - useful favors NO

liability)

(2) intention did D intend to dispose of at time of transaction?

(3) crucial decision - to place HS in hands of particular facility?

NOTES physical control? Actual knowledge? Duty?

APP landowners must have done something more than contracting for aerial spray to bearrangers

s.Dist not even implicit indication they agreed to disposal

C.f.Aceto (8th Cir) chemical manufacturers arranged for when spills generated due to

formulation process

Possible to infer exercised some control - i.e., retained ownership throughout,

provided the specifications for formulation and formulation itself inherently involvedcreation of hazardous waste

dist,Aceto spraying pesticides NOT obviously the creation and disposal of hazardouse

waste. NO allegation Landowners knew about this incidental by-product of their service

Rat CERCLA liability not boundless not going to allow Sprayers to escape liability

for a situation they created. Defn of arranged for sought too broad.

LIM depends on the facts of each case. Here, Sprayers failed to allege sufficient

knowledge or control...

NOTES:

GenCorp (6th Cir) NOT arranger by mere inadvertence. Must have some intent to

make preparations to dispose of waste even if only by inference. LIM tho active involvement not prereq

2. DistAceto - exercised some control ( inference)

Inferring knowledge of creation of hazardous substances necessary in the formulation

process inAceto, ct says not so inMontalvo. In Aceto the manufacturers argued Aidexhired to formulate, not to dispose, - s.Dist - ct found it significant that Aidexperformed a process on products owned by the manufacturers for the manufacturer's

benefit and at their direction.

Compare US v. Hercules (8th Cir) liable as an arranger even though they lacked control

over the process by which Vertac mfgd.

What is ownership or possession under107(a)(3)?


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US v. Vertac (8th Cir) proof of authority to control the handling and disposal might be

sufficient for liability, even absent proof of actual ownership or possession

American Cyanamid(1st Cir) broker who arranges for the disposal may be deemed to

be in constructive possession of the waste

GenCorp (6th Cir) found constructive possession (w/ no hx of title) b/c had an 'active

interest' through option to buy plant, AND had representation on committee that oversawconstruction, operation and mgmt of the plant

Burlington Northern (US 2009) mere knowledge that spills occur after sale of a chemical NOT enough for arranged for the disposal

arranged for - NOT defn ordinary meaning

implies action directed to a specific purpose

TEST did the party take intentional steps to dispose of?

APP - must be intent to dispose of at least a portion

s.Dist seemed to matter that they took steps to prevent spills

CLEAR v. OPEN :

YES if entity enters into trxn for the sole purpose of discarding a used and no longeruseful hazardous substance

NO merely selling a new and useful product if the purchaser later, and unbenknownstto seller, disposed of in a way that led to contamination

OPEN - (1) SOME knowledge of seller's planned disposal (2) seller's motives less thanclear (i.e., useful v. beneficial)

TEST (fact inense) did Congress intend the arrangement to fall within CERCLA???

Post-Burlington not clear yet.. (just 1 yr)

OPEN what effect on products that are not useful?

YES - WSDOT(W.D. Wash 2010) state agency liable as arranger for highway

stormwater runoff design that contributed to contamination. The runoff system wasdirected to a specific purpose to discharge runoff into the environment and agencyknoew runoff contained hazardous substances.

NO- Others P's failure to prove intent defeated arranger

Bonnieview Homeowner's Assn developer not liable b/c not aware soil was

contaminated when it developed residential lots

Celanese Corp held thatBurlington Northern precludes argument that pipeline

installer's conscious disregard of a duty to investigate amounted to intentional steps

(4) transporter (PA don't worry about...)

What for ?

(1) facility

(2) release or threatened release

(3) of a hazardous substance

(4) that causes the incurrence of response costs

Liability for what ? (Shore Realty - S/L)

(A) GOVT's costs for removal/remediation

LIM Shore Realty remediation ( has to be on NCP list); removal ( need not be on

NLP Rat more immediate/short-term)

(chk also said that states/?? can also sue for remediation as long as not inconsistent with

NLP) (B) any other necessary costs by another person

(C) damages for injury.... natural resources

(D) costs of any health assessment or healths effects

107(b) DEFENSES where D shows by preponderance of the evidence that the release/threatened release

was caused by:

(1) act of God

101(1): exceptional, inevitable, and irresistable character...the effects of which could NOT have

been prevented or avoided by the exercise of due care or foresight

APP hurricane NOT sole cause AND could have been avoided by due care or foresight


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(2) act of war

NOT merely the Govt recquisitioning and regulating

HYP - 9/11? maybe matters whether negligent to have certain substances on hand? Policy

considerations better for the public to pay?

(3) act or omission 3d party (NOT agent/employee/contractual relationship)

LIM only if he (#3)

(a) exercised due care (given substance's characteristics and relevant facts/circumstances)

(b) took precautions agst foreseeable acts/omissions of 3d party

purpose prevent liability for midnight dumpers

Lincoln Properties (Cal) ONLY if caused solely by the 3d party

contractual relationship EXCEPTION :

SOME defense unavailable ONLY if there is a connection between the contractualrelationship and the act or omission

101(35) - defines contractual reln includes but NOT limited to land contracts, transfers of

title/possession, leases etc.

UNLESS acquired after disposal + one of the following:

(1) did not know or have reason to know (of disposal/release/threat)

101(35)(B) - (i) All appropriate inquiries (I) on or before acquiring (II) rzbl

steps to stop continuing release, prevent threatened future, prevent human

exposure EPA Reg prospective landowners who do not conduct inquiries (i.e., audits)

prior to purchase may lose their ability to claim this defense

APP retrospective just need to show rzbl at the time?

(2) govt entity acqd by escheat, or involuntary transfer, ED

(3) D acquired by inheritance or bequest

APP NO defense for actual knowledge if audits show contamination then disincentivizesbuying such property

(4) any combination of the above

107(0): de micromis exemption

(1) applies only to arrangers/transporters

(2) who can demonstrate that total amt of material containing hazardous substances

(3) that the person arranged/transported disposal of

(4) is LESS THAN 110 gallons (liquid) OR 200 lbs of solid materials LIM - (subject to Admin modification)

107(q)(1)(A): contiguous property owner

NOT considered to be o/o solely by reason of contamination IF:

(1) did not cause/contribute to release/threatened release

(2) not liable or potentially liable through any relationships

(3) reasonable steps to stop/prevent any release/human exposure

(4) full cooperation/access to facility/vessel

(5) in compliance with land use restrictions + does not impede effectiveness of the response action

(6) provides all legally required notices (INT 103)

INT even if reason to know (by stds set under regs) might still be OK if meets 101(40) - bona fide

purchaser - i.e., residential and inspection/title search no basis

Hearthside went after source rather than contiguous owners

BUT 107(r)(2/3): allows US to place lien on property for unrecovered response costs if the response

action increased the fair mkt value

107(p) - Municipal Solid Waste Exemptions (INT - RCRA)

CERCLA exempts from response cost liability certain persons who sent municipal solid waste to an NPLsite

Cases:

Shore Realty

dist, CERCLA (pollution abating) v. CAA (regulatory std-setting)

107 S/L for PRPs present o/os only relief is if they fit within defenses... (c.f., past o/o)

release - continuing leaching, seeping from earlier releases ARE ok


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removal v. remediation - Being on the NPL is not a general reqt NOT a limit for removal

LIM NPL reqd for remedial (i.e., long-term) b/c NPL criteria and listing appear to limit

what fed can spend money on

BUT states NOT limited to NPL as long as not inconsistent

Fed v. State State does NOT have to seek fed authorization Congress envisioned states using

their own resources to do cleanups and then being able to recover the costs from PRPs

Lim Kalman Abrams Metals - (8th Cir) refused to allow state to collect under NCP since it

insisted in using an untried, high risk and high cost remedy

Affirmative defense

(1) the D was aware of the nature of the tenant's activities before closing could haveforeseen they would continue to dump, NOT caused solely by the tenants, NOR did D takeprecautions agst these foreseeable acts or omissions

(2) only acts or omissions (b)(3) concerned about are those that occurred during the D'sownership

h) 42 USC 1 09: imposing civil administrative penaltiesi) 42 USC 111: the use of Hazardous Substances Superfundj) 42 USC 112: claims agst Superfund for response costsk) 42 USC 113: stds of judicial review for civil proceedings

113(g)(2) - SOL triggered by (1) completion of removal OR (2) initiation of remedial (Hearthside)

113(f) contribution

113(f)(1): Any person may seek contribution from any other person who is liable or potentially liable

under [107(a)], during or following any civil action [under107(a) or106]. Such claims shall be broughtin accordance with this section and the FRCPS...

Aviall INTERP narrowly plain reading party can seek contribution after it has been sued under

106 (govt...) or107(a) (PRPs..)

Post-Aviall OPEN 113(f) exclusive COA to obtain contribution?

Incentivizes party waiting to get sued inconsistent w/ CERCLA's purpose...

Atlantic Research Corp - CERCLA, 107(a)(4)(B)provides COA to PRPs to obtain voluntarily

incurred cleanup costs from other PRPs.

How does suing under107 v. 113 differ ? Benefits of each?

(still figuring out to some degree)

STD 107 P must show the costs were consistent with NCP

Jt + several liability... (RECALLBurlington Northern)

113 contribution equitable allocation (i.e., NO Jt, just several liability)

Gore factors : (1) relatively small amt (2) not that toxic (3) care better position to be

allocated less of the costs

APP once there is a 107 action, the other PRP can file a 113 contribution action in response

(Atlantic Research)

SOL difft cost recovery v. contribution (both within 3 yrs...)

(1) cost recovery - 113(g)(2)

RECALL Hearthside triggered by (1) initiation of remedial OR (2) completion of

removal

(2) contribution - 113(g)(3)

based on date of judgment -

Effects of settlement w/ EPA ?

113(f)(2) another PRP may no longer seek contribution from them

Rat don't wait...

l) 42 USC 122: settlement agrtmts

settlements

m) 127 recycling transactions (LIM on arranger/transporter liability) (INT RCRA's recycling analysis??)

127(a) - a person who arranged for recycling of recyclable material shall NOT be liable under [107's


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arranger/transporter]

127(b) - recyclable material means scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other

than whole tires), scrap metal, or scrap spent lead-acid, spent nickel cadmium, and other spent batteries, aswell as minor material incident to or adhering to the scrap material as a result of its normal and customary use

prior to becoming scrap..

But NOT - ...[shipping containers..] or [PCBs > 50 ppm]

127(c) reqts for recyclying exception must be shown by preponderance:

(1) met commercial spec grade

(2) mkt existed for the recycled materials

(3) a substantial portion of the recycled material was used as feedstock for a new saleable product

(4) could have been replacement or substitute for virgin raw material, or something made from it

(5) rzbl care to assure the facility was in compliance with fed/state law

(6) rzbl care criteria include:

(A) price paid for recycling transaction

(B) ability of person to detect the nature of the recycling facility's operations

(C) inquiries made to appropriate regulatory authorities

127(f) Exclusions

(A) where person has objectively reasonable basis for concluding:

(i) would not be recycled

(ii) would be burned as fuel, or energy recovery, or incineration

(iii) trxns after 11/99 that facility was not in compliance with laws

(B) reason to believe that hazardous substances had been added to the recyclable material for purposesother than processing for recycling OR

(C) person failed to exercise reaosnable care with respect to the mgmt or handling of the recyclablematerial

(e.g., industry/customary practice to minimize contamination through source control)

n) 42 USC 159: jurisdiction for citizen suits (INT enforcements) (a) authority to bring:

(1) agst any person allegedly in violation of any std, regulation, condition, reqt under CERCLA

(2) agst Prez or any other officer for alleged failure to perform non-discretionary duty associated w...

(c) Relief - District court shall have jurisdiction to grant:

under(a)(1):

orders to enforce the std, regulation, condition reqt

e.g., such action as is necessary to correct

impose civil penalties under(a)(2):

order Prez or other officer to perform the duty concerned

LIM 159(d)(2) - diligent prosecution - by Prez NO action

Attys Costs 159(f) ct may award to the prevailing or susbtantially prevailing party where appropriate

IV. Hazardous Waste

A. INT - Pollution Prevention Act (PPA) (42 USC 13101-13109)i. National Policy - declared to be:

a) whenever feasible prevent or reduce pollution at sourceb) if NOT recycle in environmentally sound manner

c) last resort dispose into envtB. INT - with other statutes

i. Rat - prevention should be ultimate goal, otherwise risk cross-media shell gameii. APP used to interpet other statutesiii. CAAMonsanto v. EPA (7th Cir) ct found EPA's denial of extension request to be contrary to the Act since it would

induce industry to adopt quick fix solutions

a) if company has a choice betn 2 control strategies, EPA may grant a waiver for a pollution strategy even if thatstrategy would take slightly longer to implement

iv. dist, CERCLA petroleum products NOT excluded under RCRAC. RCRA/Intro enacted in 1976 in response to growing concerns about health and envtl probs associated with waste

i. Hx, before - local, state and fed laws regulated in piecemeal fashion (stop gap)ii. technically an amt to Solid Waste Disposal Act (SWDA)

iii. gap-filler - regulates both active and inactive waste disposal sites


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iv. cradle to grave approach for dealing with hazardouse wastev. largely a problem of groundwater contamination (INT NB, CWA does not cover GW? Check.. FILL)

vi. three stages to minimize risk : many now feel that the latter 2 provide best opportunities for long-terma) treatment, storage, disposalb) process changes (to reduce volume)c) resource recovery (i.e., recycling)

D. Purpose -

i.Goals conservation, reducing waste disposal, and minimizing present and future threats to human health and envt

ii. Objectives and Natl Policy - 1003: to promote health/envt and conserve valuable material and energy resourcesa) (then lists means...)

b) 1003(a)(4): assure that hazardous waste mgmt is conducted in a manner which protects human health and the envtc) 1003(a)(6): minimizing the generation... by encouraging process substitution, materials recovery, properly

conducted recycling and reuse, and treatment

d) 1003(b): reducing eliminating generatin of HW wherever feasible AND managing waste nevertheless generatedin way that minimizes threats to health/envt

(APP source of tension)E. Structural Overview

i. Four (PA: 3?) programs govern :a) Subtitle C: hazardouse wastes (HW) - (FOCUS, here)

CB: paradigm for pollution control - subject of thousands of pages at EPA

crit too much emph on HW, not enough on nonhazardous

b) Subtitle D: nonhazardous waste org, going to provide merely technical and financial asstnc to states w/o much federal presence

now? (FILL)

c) Subtitle I: underground storage tanks LUST INT CERCLA excludes petroleum BUT leaking gas tanks come under RCRA

d) ...used oil...F. Hazardous Waste Subtitle C

i. cradle to grave - 3001-3013 regulates: generation, transportation, and treatment, storage, and disposal ofhazardous wastes

a) mgmt system (a) classification of waste materials, (b) written manifests to track waste shipments - generation disposal, (c) certification of disposal facilities via permitting

ii.Manifest system - 3002(a)(5) accompanies the waste through out

a) Generator, transportor and disposal facility must EACH sign signed copy back to org generator

b) and any other reasonable means necessary to assure that all such HW generated is designated for treatment,storage or disposal...

iii. Disposal Facility Permits - (3005(a))a) CB: requires permit compliance for: performance stds for location, design, construction, operation, closure and

post-closure care

b) 3005(a): treatment, storage, and disposal of any such hazardous waste and the construction of any new facilityfor the treatment, storage or disposal of any such hazardous waste is prohibited except in accordance with such a

permit.

treatment, storage, and disposal facility (TSDF)

c) federal permit reqd for TSDFs before they may dispose of HW

CONTR, no auth for states (CHK)

iv. Identifying Hazardous Wastea) defn of hazardous waste - 1004(5): means a solid waste, or combination of solid wastes, which because if its

quantity, concentration, or physical, chemical or infectious characteristics may -

(A) cause or significantly contribute to incrs in mortality or serious illness

(B) substantial present or potential hazard to human health or envt when improper TSDF

b) TEST Step 1 solid waste? (INT - same test for Subt D) Step 2 hazardous?

Step 1: within defn of solid waste? (scope - hardest part per PA)

ELEMENTS: (1) regulated waste group? (2) discarded? LIM recycled?

1004(27): Solid waste - means any garbage, refuse, sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid,


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or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, andfrom community activities,

[LIM] - BUT does NOT include solid or dissolved materials in irrigation return flows or industrialdischarges which are point sources subject to permits under section 1342 of Title 33, or source, specialnuclear by product material as defined by the Atomic Energy Act of 1954

APP - (really BROAD defn including nonsolids)

EPA's burden/discretion show rational explanation for its decision; has discretion in determining

deference (NOT HERE)

Interpretation achieved in light of RCRA's dueling objectives encourage legitimate recycling v. preventactivities that pose health/envtl threats influences the SCOPE of solid waste (s.Tens)

#1 - EPA Regs 3 waste groups: (40 CR 261.2 defn of solid waste)

(1) garbage, refuse, or sludge ALWAYS covered by RCRA

(2) solid, liquid, semisolid, or contained gaseous material

covered UNLESS excluded by the Act

(3) ALWAYS excluded:

domestic sewage (even where otherwise 'hazardous')

industrial and waste water discharges subject to CWA (INT)

irrigation return flows

otherwise regulate nuclear waste

certain mining waste

#2 Discarded? (jurisdictional... RCRA only has jurisdiction for discarded EPA has discretion needs to

be abuse to reverse)

discarded defn - Act does not define discarded

discarded per EPA Regs - (40 CFR 261.2(a)(2)) any material:

(1) abandoned

(2) recycled OR

(3) considered inherently wastelike [APP - listed in regs]

abandoned - disposed of, burned or incinerated, OR accumulated, stored or treated (but not recycled)

before or in lieu of disposal, burning, or incineration (40 CFR 261.2(b))

disposal - 1004(3) - means the discharge, deposit, injection, dumping, spilling, leaking, or

placing of any solid waste or hazardous waste into or on any land or water so that such solid wasteor hazardous wate or any constituent thereof may enter the environment or be emitted into the air ordischarged into any waters, including ground waters.

(INT CERCLA per sup, gasoline tank has been found to be covered due to abandonment CONTR, excluded under CERCLA)

#3 Recycled? (1003(a)(6) objective of Act is to enourage recycling)

Recycled solid waste IF:

40 CFR 261.2(c)(1-4):

(1) used in a manner consituting disposal..

(2) Burning for energy recovery..

(3) Reclaimed..

(4) Accumulated speculatively...

Recycled NOT solid waste IF:

40 CFR 261.2(e)(1)(i-iii)

(i) Used or reused as ingredients in an industrial process to make a product, provided the materials

are not being reclaimed; or

(ii) used or reused as effective substitutes for commercial products; or

(iii) returned to the original process from which they were generated without first being reclaimed

or land disposed. The material must be returned as a substitute for feedstock materials. In caseswhere the original process to which the material is returned is a secondary process, the materialsmust be managed such that there is no placement on the land...

UNLESS they still meet first part, OR are applied to the land

recycled, reclaimed, or are still useful RCRA does NOT apply (RTN)

C-A : LIM - NOT excluded = used in a manner constituting disposal, burned for energy recovery,

reclaimed, or accumulated speculatively solid waste and subject to RCRA. (261.2(c))

TEST: recycled v. discarded


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Tension incentivize real recycling v. discouraging sham recycling

Typ substitute for commercial/feedstock excluded

sham v. legitimate recycling -Marine Shale (5th Cir 1996) (RTN to PA's case)

TEST function that HW allegedly serves

LIM legitimate ONLY IF HW not simply along for the ride

Value -

(ATTN - Ca i.e., merely State defn) Waste Mgmt of Desert(Cal 1994) - 'waste' is something

discarded 'as worthless or useless' (from CB notes)

Analysis (1) discarded? (2) economic value?

if property sold, not worthless in economic sense

value of property related to the manner in which it is disposed

discard (i.e., throw away) =/= dispose (i.e., transfer or part with by giving or selling)

broader

OPEN but how much value? (RTN to)

CONTR,ILCO (11th Cir 1993) no doubt that lead plates from used batteries valuable as feedstock

Nevertheless, subject to RCRA b/c EPA classified as discarded solid waste

discarded not changed merely b/c reclaimer finds value in

ALSO,Safe Air for Everyone (9th Cir 2004) monetary value does not affect solid waste

analysis in RCRA

Safe Food and Fertilizer(DC Cir 2003) whether secondary materials used to make zinc fertilizer

were solid waste?

Ct accept EPA's arg (s.Dist.) NOT subject to RCRA b/c:

(1) mkt participants treated the recycled feedstocks as valuable ( inconsistent wdiscarded)

(2) final product made w the feedstocks is chemically indistinguishable from analogouscommercial products

Immediacy of use/ongoing mfg process -

Owen Elec Steel(4th Cir 1994) aggregate crushed limestone

(goes through precedents )

TEST - Was the byproduct immediately recycled for use in the same industry?

If YES excluded

If NO justifiably seen as part of the disposal problem and therefore solid waste APP EPA did NOT abuse its discretion in determining that subject to RCRA

s.Dist- where slag sits untouched for six months cannot be said never disposed of,

abandoned, or thrown away

American Petroleum API II (DC Cir 2000) co was putting through cycle multiple times b/c

gunk at end still had value

closed loop recycling not subject to RCRA b/c not disposed

s.Dist - API argued secondary treatment was (1) INT - consistent w CWA reqt to remove

excess oil from wastewater (2) permitted co to obtain oil which had value thus not discarded

s.Dist - EPA failed to show why compliance goal should predominate over reclamation one

CB/Ctxt: EPA was worried that extra chemicals were being added during the secondary

process - act of discard under guise of recycling

AMC I(DC Cir 1987) held that EPA could not treat secondary materials used in ongoing mfg

process as subject to RCRA

not yet become part of the disposal problem...b/c destined for beneficial resuse or recycling in

a continuous process by generating industry itself (OPEN extent of immediacy)

AMC II(DC Cir 1990) EPA ok treating sludges stored in surface impoundments as part of the

disposal problem

AMC I (gloss) - concerned only materials destined for immediate reuse in another phase of

the industry's ongoing process

Ass'n of Battery Recyclers (DC Cir 2000) Ct held that immediate means direct as in

immediate cause of.. (rather than at once as urged by EPA).


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in-process secondary products NOT subject to RCRA (i.e., destined for reuse as part of a

continuous industrial process)

FACTS EPA reg said regulable if HW characteristics and stored by means other than tanks,containers, bldgs.

AMC IIgloss stands only for EPA's ability to regulate materials that may at some future time

be reclaimed

nonindustrial solid wastes

CT Coastal Fishermen (2d Cir 1993) lead shot and clay targets discharged by patrons of gun club YES solid waste

had accumulated long enough to qualify

CONTR, Cordiano (2d Cir 2009) ct deferred to EPA's view that lead shot put to its ordinary use

NOT discarded

ALSO,Military Toxics Project(DC Cir 1998) also deferred to EPA that fired munitions left on

ground are NOT discarded because they were used for their intended purpose

OPEN Qs insecticide application come under? open burning for farmers?

LIM

variances - 40 CFR 260.30 Administrator may detn case by case that following materials are not

solid wastes:

(a) accumulated in amts insufficient to recycle

(b) reclaimed and then reused in org production process

(c) reclaimed but must be reclaimed further before completely recoverd

(d) hazardous secondary materials that are reclaimed in a continuous industrial process AND

(e) hazardous secondary materials that are indistinguishable in all relevant aspects from a product orintermediate...

standards and criteria for non-waste determinations - 40 CFR 260.34

in a continuous industrial process if.. hazardous secondary material.. part of production

process..not discarded..legitimately recycled [based on above regs] and on following criteria: (RTNto p818)

Step 2: is it hazardous?

hazardous - 1004(5): (CB:) solid waste that, because of its quantity, concentration, or characteristics,

may cause or significantly contribute to an increase in mortality or serious illness or pose a substantialhazard to human health or the envt when improperly managed

why would EPA regulate if no risks? Owen Elec Steel(4

th

Cir 1994) limestone aggregate forconstruction

better to presume risks where they may be unknown

uniformity

(lack of risks on individual basis better handled by variances)

3001(a): criteria for identification or listing EPA reqd to develop and promulgate criteria for

identifying the characteristics of hazardous waste, and for listing hazardous waste... taking into accounttoxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other relatedfactors such as flammability, corrosiveness, and other hazardous characteristics. Such criteria shall berevised from time to time as may be appropriate.

EPA may ID 2 ways :

1. by LISTING as a hazardous waste

emph, primary means since testing for carcinogenicity, etc tough for generators

EPA has listed hazardous waste streams, typical waste sources, hazardous wastegenerating processes as well as specific hazardous waste substances

2. determining a waste is hazardous due to CHARACTERISTICS

Listed - may be placed on list, after RM proc'g, IF:

(1) exhibits one of the characteristics (i.e., ignitability, corrosivity, reactivity, or toxicity) 40 CFR

261.11(a)(1)

(2) acutely toxic based on studies showing even low doses may be fatal 40 CFR 261.11(a)(2)

(3) contains certain toxic constituents AND agency detns capable of posing substantial harm if

managed improperly 40 CFR 261.11(a)(3)

IF unlisted detn whether hazardous by:


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1. Meets any of the characteristics - (i.e., ignitability, corrosivity, reactivity, or toxicity)?

APP by using EPA-approved methods to test OR applying knowledge of the waste in light

of the materials or the process used 40 CFR 261.11(c)(2)

2. Mixtures -

IF listed + another solid waste hazardous

UNLESS specifically excluded 40 CFR 261.3(a)(2)(iv)

IF characteristic + nonhazardous solid waste

IF exhibits characteristic hazardous

If NOT NO 40 CFR 261.3(a)(2)(iii)

3. derived from -

with certain exceptions, any solid waste generated from the treatment, storage, or disposal of a

hazardous waste hazardous 40 CFR 261.3(c)(2)(i)

Rat prevent generators/owners from avoiding regs by minimally proc'g or managing a

hazardous waste and claiming that resulting residue was no longer the listed waste, despitscontinued hazards that could be posed by the residue even though it does not exhibit[hazardous waste] characteristic

Characteristic

toxicity - most difft to apply

Org, extraction procedure (EP) leach test toxicity detnd by measuring its constituents' potential to

leach out and contaminate groundwater at levels that would create health/envtl concerns ifimproperly managed

Then, toxicity characteristic leaching procedure (TCLP) still trying to detn if threat to health via

mismgmt BUT added list of 25 constituents of concern

Note Cases

Dithiocarbamate Task Force (D.C. Cir 2000) court invalidated EPA listings where the agency failed

to consider all of the regulatory factors in determining whether they were capable of posing a substantialhealth threat

CONTR,Envtl Defense Fund(D.C. Cir 2000) upheld EPA decision to not list certain solvents

dispute not looking at the toxicity of the solvent's constituents

Shell Oil(DC Cir 1991) ct invalidated both the mixture and derived from rule on procedural

grounds

EPA reissued the rules in 2001

American Chemistry Council(D.C. Cir 2003) Ct upheld the 2001 versions rzbl for EPA to

assume hazardous until proven otherwise burden on the regulated entity

Rat avoids putting EPA in impossible situation of anticipating the hazardousness or

nonhazardousness of every possible mixture/derivative

LIM - Delisting - plant specific petition

3001(f): generators may petition the agency to delist their waste must show that the specific waste

generated by an individual facility is not hazardous b/c of plant specific variations in the raw materials,processes, or other factors

LIM - household waste exclusion

Municipal waste combustion household waste is exempted under RCRA facilities that receive only

household waste may not be regulated BUT chemical composition of the waste that exits fundamentally

difft chemically from what went in 1980, EPA faced with Q of whether or not to treat MWC ash as a hazardous waste

3001(i) (Congr enacted in 1984 to clarify the exlcusion)

City of Chicago v. EDF(US 1994) CT refused to defer to EPA's interpretation that the exclusion

continued to exempt MWC ash.

while resource recovery facility's mgmt activities are excluded from Substitle C regulation, its

generation of toxic ash is not

OPEN CT did not indicate exact pt at which ash becomes hazardous waste

EPA announced interpetation that ash first subject to Subtitle C when it exits the

combustion bldg following combustion and air poll'n control processes


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Rat promotes Congr's intent of removing impediments to commercial operation of resource

recovery facilities

ALT, resulting ash inside bldg might need to sample and analyze the ash at multiplepts

c) LIM/ALT crits contingent mgmt approach risk depends not only on chemical composition, but also themanner in which it is managed

APP should exempt if managed in a manner that mitigates the health and envtl risks it poses

EX, EPA interpreted 3004(y) as exempting nonchemical military munitions tranported or stored incompliance with waste mgmt regulations issued by Dept of Defense (s.Dist)

Military Toxics Project(DC Cir 1998) upheld as rzbl

N: does not extend to general condl exemption without oversight by another agency

B: Ct's Rat that 3001(a), 3002(a), 3003(a) and 3004(a) authorized EPA to detn whether Subtitle

C applies based on whether need to protect health/envt

v. Permitting (3005)a) RCRA requires that operator of a TSD obtain a permit from EPA or authorized stateb) May also require transporters and even some generators to obtain a permit

vi. Land Ban before you can dispose on land you need (1) pretreatment AND (2) BADT best available demonstratedtechnology

a) Columbia Falls PROS/CONS of technology forcing Ct held the stds to be arbitrary + capricious since they bore no relationship to the reality it purported to

represent i.e., the TCLP test on which EPA relied was not a true indicator of the substances capacity to leach

s.Dist the pretreatment std it established also happened to create a monopoly for Reynolds

FACTS after Reynold was unable to get delisted - used the evidence from their petition to establish whatthe pretreatment should be only their pretreatment would meet the std

V. Water Protection CWAA. OVERVIEW

i. point v. nonpoint sources the former are permit-controlled, the latter have produced little controlii. direct v. indirect discharger -

a) direct discharger => NPDES strict stds for primary permits and less strict stds for publicly owned treatmentworks (POTW) technology stds, variances, effluent limitations

b) indirect dischargers => pretreatment program stds and sewage sludge stds for indirect dischargers operating thru

POTWiii. Water Quality Standards (WQAs)

a) State promulgated stds include designated use, total maximum daily loads (TMDL), and effluentlimitations

B. The ACT

i. Framework system of nationally uniform technology-based stds implemented via a permitting programii. Goals of FWPCA -

a) (originally) 33 USC 101(a)(1-2) 1983- fishable and swimmable waters by...

1985 eliminate the discharge of pollutants into navigable waters by 1985...iii. NPDES Permits

a) 301(a) Effluent Limitations - Except as in compliance with this section...the discharge of any pollutant by anyperson shall be unlawful.

b) 402 Compliance with a NPDES permit authorizing the discharge is one of the most significant exceptions under301

LANGUAGE:

301(a)(1): discharge of any pollutant

502(12): discharge of a pollutant(s)

(A) addition of any pollutant to navigable waters from any point source

(B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point

source other than a vessel or other floating craft

ELEMENTS:

(1) addition


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(2) of a pollutant

(3) from a point source

(4) into navigable waterc) Is there an addition?

(comes from defn of discharge of any pollutant 502(12))

d) Is it a pollutant?

502(6): 'pollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded eqt, rock,sand, cellar dirt and industrial, municipal and agricultural waste discharged into water

NOT vessel discharge or incidental to Armed Forces or oil/gas/water in reln to well etc.

INT line betn 404 + 402 Permits-

turns on whether the discharge is of pollutant v. dredged or fill material

APP same analysis applies for404 on at least 4, and mayybe #3 (+1?) per (FILL? - but CT case

(FILL) suggests that 404 program could also apply to nonpt sources)

e) Is it a point source?

502(14): any discernible, confined and discrete conveyance from which pollutants are...discharged (look

to full section for specific EXs)

C-A: NO definition for NON-point source => derived from above

APP Courts generally define broadly but some notable exceptions

US v. Plaza Health (2d Cir 1993) does NOT include human beings (where a corporate officer disposed ofhepatitis-contaminated blood into the Hudson and was found to not be criminally liable)

CT's A:

(1) Language and Structure of Act generally targets industrial and municipal - human beings notamong enumerated

(2) Leg Hx intended to function as a means of Iding industrial polluters

(3) Caselaw (S.Dist.) past cases permitting broadest possible reading to further remedial

legislative purpose dont apply here B/C criminal (not civil) and thus rule of lenity applies

(4) Regulatory Structure not even the EPA's regulations support they stress through pipes,sewers or other conveyances

DISS:

man-induced gathering mechanism plainly is the essential characteristic of a point source.. put

simply...is an identifiable conveyance of pollutants

NONPOINT - generally, runoff from roads/agriculture - diffuse patterns..difficult to

ID...difficult to control...would require radical change

Congress chose to regulate points sources b/c easy to ID pt sources/ppl and left NONPOINT tostates under s 208 for the above reasons

Not necessary to determine whether it was Villegas himself (v. his car or whatever) just that therewas a discrete conveyance

MAJ is reading technical exception into the statute that isnt actually theref) Is it into navigable water? (jurisdiction)

502(7): navigable waters - means the waters of the United States, including the territorial seas

Hx - Navigable

TRAD - navigable in fact - i.e., subject to ebb and flow of tides, capable of supporting commerce

CWA waters of the US intended to extend beyond TRAD but how far?

APP POST-Rapanos

lots of uncertainty for CORPS/developers whats the law?

1. surface cxn (Sc) + significant nexus (K) clearly YES

APP - You can also count the votes...

2. significant nexus good enough (5 votes)

3. surface cxn + deference (St) prob ok (b/c 8 votes) i.e., then CT doesn't need to inquire intosignificant nexus...

Restating APP above :

(1) Protected waters or wetlands adjacent?

If YES OK (Riverside Bayview)


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If NO continue...

(2) visible surface connection? (Sc +St (deference) at least 8 votes)

If YES OK

If NO continue...

(3) significant nexus? (i.e., significantly affect chemical, physical, bio integrity... (from Act's

purpose 101(a))

if YES prob OK (K + St (deference) at least 5)

APP mere migratory bird rule NOT enough

Riverside Bayview - Wetlands adjacent to protected waters (i.e., navigable) are waters of the United States

under the CWA.

SWANCC NOT extend to non-navigable wetlands (e.g., abandoned gravel pits)

Rapanos - UnderCWA, waters of the United States includes

ONLY those relatively permanent or continuously flowing bodies of water forming geographic features

such as streames, oceans, rivers and lakes

NOT intermittent - i.e., channels through which water intermittently flows or channels that provide

periodic drainage for rainfall

g) States v. Fed -

cooperative federalism

empowers states to be able to assume primary responsibility for the day to day implementation ofNPDES

states have primary role in establishing water quality stds

402(a) Federal

(a)(3) permits issued by EPA are subject to the same terms and conditions as those issued by the states

i.e., have to look the same

cannot last longer than 5 yrs under402(b)(1)(B)

402(d) procedures for what EPA can do

EPA cannot disapprove a state program b/c it is too strict

402(b) State permit program

403(b)(5) if state is going to issue a permit that affects waters in another state affected state can

issue a written recommendation saying they don't think it is a good idea

EPA still has to approve the state std BUT as long as not crazy they probably will

h) Technology-based Effluent Limitations (301) CWA makes 3 crucial distinctions:

(1) difft TBS for difft types of dischargers

(a) industry facilities - discharge directly into h2o

(b) sewage treatment plants (POTWs)

(c) pretreaters - i.e., discharge into a sewage treatment system

(2) existing v. new - direct industry dischargers (like CAA)

(3) Conventional v. Toxic

(a) conventional i.e., those that are biodegradable

(b) toxic NOT biodegradable AND create risk of substantial human health impairment

(c) non-convnentional, non-toxic

(d) heat - (b/c more site specific than others) Once EPA sets must be incorporated into all NPDES permits (floor NOT ceiling)

May specify (among other things):

(1) numerical limits on discharge from individual on units of production

(2) max daily and 30 day permissible concentration limits

(3) specific treatment and process modification designs

304(a) Directed Admin to develop and publish within 1 yr criteria for water quality that accurately

reflected the most current scientific knowledge and technical information on factors necessary to restrore andmaintain water quality

Industry-wide limitations under 301 ?


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YES -E.I. Dupont v. Train (US 1977) - wide discretion for EPA to set limitations based on

categories and classes

LIM relief may be available through variances

Relevant factors in setting ?

304(b) Effluent limitation guidelines (contents of regs..)

Must ID degree of effluent reductions attainable through use of BPT or BAT for classes of plant

FACTORS (according to BPT, BAT, BCT see chart)

Weyerhaeuser

BPT Ru : Congress mandated a limited balancing test under304(b)(1)(B) i.e., BPT b/c

distinguises between factors (i.e., total cost in reln to benefit is elevated AND other factors e.g.,age of eqt should also be considerations) EPA left to decide how to weigh each individual factor

BAT Ru2 : in contrast, NO limited balancing test for 304(b)(2)(B) since there are only

consideration factors EPA not reqd to use any specific structure in assessing

APP EPA doesn't have to do incremental cost analysis for the Ps

Rat valuing natural resources is hard easier if done on industry-basis e.g., value of waterto Coca Cola

LIM where an analysis has been performed it is subject to scrutiny

BAT?

Pacific Fisheries -

APP (1) is the technology available? (2) Is it economically achievable?

(1) available?

Leg hx can be based on just one plant

transfer technology OK

Rat supposed to be technology forcing..

(NOTES even where a techonology is not in use, it is not per se unavailable just

means agency's burden in justifying..)

(2) economically achievable?

SPLIT but agrees wit Weyerhaeuser EPA must consider economic consequences along

with other factors

Congress did NOT intend Ct/EPA to engage in marginal cost-benefit analyses

TEST just whether EPA considered the cost of technology along with other statutory factors

Burden shifting -

EPA just needs to put enough on the record to show feasible + deference

then D's burden to show it wouldn't work

Variances? (Purpose provide flexibility in otherwise rigid system.. - cheaper to do exceptions on case by

case basis - certainty)

301(c): provides for modification of BATs for individual pt sources upon a showing that: such modified

reqts:

(1) will represent a maximum use of techonology within the economic capability of the o/o AND

(2) will result in rzbl further progress toward the elimination of the discharge of pollutants

301(g) - special exception - for certain pollutants that won't affect water supply

301(l) NOT for toxics (BUT 307(a)(1) special program)

301(n) Fundamentally Different Factors (FDFs) for variances that couldn't have been accoutned for

when the effluent limitations were settlement very rarely granted

Natl Crushed Stone TBS variances

Ru:

BAT EPA can grant variance under certain circumstances (301(c))

BPT EPA doesn't have explicit authority to grant variances

BUT RECALLDupont might be able to create separate categories of pt sources that

have the same effect

Ct no variances for BPTs would undercut the purpose and function of BPTS (they are already atthe lowest level statutory level)


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LIM still can go throughDupont..

i) Permit violations and shields

Violations

discharge in excess of that allowed in the permit is a violation (INT - enforcement)

Permit shields (INT citizen suits) - 402(k)

Eastman Kodak- NO citizen suits where entity is complying with permit

EPA Interp even if entity is adding something not mentioned in the permit NO citizen suit

Piney Run held that INTERP is OK

Crit seems to contradict express language of the statute that all discharges EXCEPT those

permitted by permit are unlawful.. 301iv. Water Quality Standards

a) OVERVIEW

303 up to the states to first establish quality or ambient stds for waters in their area

303(b), (c)(3) EPA must approve the State's stds, may promulgate its own if it thinks they are deficient

STEP ONE: designate the use 303(c)(2)(A) -

e.g., public water, fish + wildlife, recreational, agricultural, industrial etc

EPA limits

(1) limits State's ability to reduce designation (40 CFR 131.10(g))

(2) states have to set their stds so that they do not undermine the ability of downstream states tomeet their own stds (40 CFR 131.10(b))

STEP TWO water criteria (EPA's role more pronounced than with designation...)

40 CFR 131.11(a)(1) - Must establish water criteria sufficient to meet the designated use

304(a)(1) EPA must come up with its own water quality stds to help states

antidegradation policy 40 CFR 131.12(a)(1) ensures that existing water quality is maintained and

protected

Tier I minimum

Tier II exceeds necessary to support fish + wildlife

Tier III outstanding Natl Resource

b) spillover effects -AR v. OK(US 1991) RJs categorical approach to denying permits have to showcausation..

Ru:

EPA does not have to impose affected state's stds but has discretion to

EPA's regs can incorporate the affected state's stds e.g., numerical STDs (narrative?)

LIM violation of affected state's std NOT merely theoretical (rat otherwise they'd have an effectiveveto)

must be actual, detectable violation

APP how to show detectable actual violation?

Bolster causation...

Maybe just try to suggest changes that would actually improve via 402(b)(5) written recommendation

c) 303 - TMDLs (Total Maximum Daily Loads) APP where WQAs not stringent enough

INT way for CWA to regulate non-point sources

Three key components :

STEP ONE: 303(d) priority ranking of waters where quality stds are not stringent enough based on

severity of the pollution and the uses...

STEP TWO: 303(d)(1)(C) set TMDLs for each pollutant for the waters

(1) taking into account seasonal variation

(2) add margin of safety AND

(3) account for any lack of knowledge concerning the relationship between effluent limitations andwater quality

APP maybe be narrative

STEP THREE: 304(l) allocate the limitations among sources

WLA (waste load allocation) - for point sources


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LA (load allocations) for nonpoint sources

SLOW... progress... States dragging their heels.

Prosolino EPA can regulate river even where it is only polluted by point sources i.e., allocation 100%

LA (0% WLA)

APP once EPA allocates between WLA/LA might encourage negotiation between pt and nonpt sources

(e.g., industry with low discharge, but can't get that last bit buys farm and tells EPA won't use forlogging)

v. 404 - CORPs Permits ELEMENTS: (1) fill OR dredged (2) discharge i.e., (same as 401) (3) waters of the USa) discharge?

Redeposits of dredged material YES

LIM de minimis exceptin under404

NOT mere 'incidental fallback'

Nat'l Mining Ass'n (DC Cir 1998) overruling CORP's Tulloch Rule, which defined discharge as

any redeposit

BUT deep ripping to convert a pasture to a vineyard (by using ?? to break up clay cap and drain) was OK

Borden Ranch P'ship (9th Cir 2001)

b) dredged or fill material (v. pollutant NPDES 402)?

Coeur Alaska - slurry is fill - both EPA + CORPs agree

CT finds the interpretation reasonable (Chevron) and hence lawful

c) nonpt sources ? Could make argument that it should apply BUT both EPA + CORPS have INTERP as applying onlyto pt sources

d) Substantive criteria (p670)

Coeur NSPS 306 review (applicable under402) NOT applicable under404

Substantive Criteria:

(1) in the public interest? (33 CFR pt 320)

(2) adequate proposed discharge site? (40 CFR 230.12(a)(3)(i)-(iv))

NOT if practicable alternative with less adverse effect

NOT if will result in significant degradation

MUST include all appropriate/practicable measures to minimize the harm

MUST be enough info to make a reasoned judgment

(3) water dependent activity?

If non-water dependent presumed practicable alternative that would cause less damage towetlands... applicant's burden to show otherwise

practicable = available and capable of being done after taking into consideration cost,

existing technology, and logistics in light of overall project purposes

mitigation banking -

Northwest Envtl Defense CORPS were validly within their discretion in awarding a 404

permit to Mitsubishi despite the fact that the project was not water-dependent

STEP ONE - overall project purpose? Necessary to perform the practicable alternatives..

STEP TWO alternatives ? Hyundai considered 7 other industrial sites

(s.Dist wanted to be in Oregon and for most part ppl wanted them there, 10.4 acres

likely to have minimal effect)

Public interest analaysis : account for projects benefits and detriments

(1) public and private need for the project (2) practicability of using reasonable alternative locations and methods

(3) extent and permanence of the beneficial and/or detrimental effects

ii. 401 - Permitsa) 401 certain types of projects that may cause discharge of pollutants

also gives states a seat at the table

S.D. Warren Co (US 2006) CT held that States have authority under 401 to water flowing through dams to

meet their reqts

INT dams are nonpoint implicitly CT recognized that 401 is applicable to nonpt sources

INT - dist 401 mere discharges, from 402 discharge of a pollutant


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b) PUD 1 - In granting CWA 401 certification, states may condition the certification on any limitations necessary toassure compliance with state water quality stds.

Ru: 401 triggered by federal license process requires state certification

State can say no to the project fed barred from granting

FACTS WA had designated as Tier III (i.e., natural resource) 303 antidegradation policy

OPEN how close does the State's basis have to be to the purpose of the Act? HERE, very close....

c) Can nonpt sources be regulated under401?

S.D. Warren (2006) - implies CT recognizes that 401 is applicable to nonpt

But...

Oregon Natl (1998) 401 is only for pt sources does not apply to cows

FACTs cows.. ct holds they are nonpt sources

RECALL Plaza Health if human hand NOT cows pooping NOT

RECALL - nonpoint comes from definition of point source (502(16))

iii. MISC

a) CAFOs included in pt source defn - 502(14) EPA's probs -

what is a concentrated feeding operation?

and what should NPDES permit limits be?

envtl prob = runoff

grass v. corn fed

Silviculture - excepted s ?? (ADD)

BUT question about whether roadbldg activities covered (FILL)

b) Municipal treatment ops (RTN to CB notes..)

RECALL - MO v. IL nuisance -

cities have little incentive to improve overflow probs b/c high costs to help ppl downstream...

fed stepped in w/ grant program,

CWA also recognizes that cities on frontline of enforcement - most discharges are made into local sewersystems

tension between encouraging biz and not violating CWA

not sexy but important

p649 - pass through or interference (FLESH)

into sewer system NOT navigable H2O (but covered CHK) (INT)

application of sewage sludge on land - pt source? more like Oregon Natl v. ???

c) Stormwater

402(p) requires NPDES permit for

(1) stormwater discharges associated with industrial activities

(2) discharges from large and medium sizd municipal storm sewer systems

(3) other discharges that the permitting authority determines contribute to a violation of a WQA or asignificant contributor of pollutants to waters of the US

EPA Ids as leading cause of impairment

very difficult to regulate - can't predict weather/pollutants

EX - pavement - oil/grease, maybe BOD i.e., conventional, ???

EPA phased in MS4 - final 2007

2000 Amts CSOs in NPDES (402 - INT)

(1) only for wet weather

(2) bring all wet weather discharge pts into compliance with TBS and WQA reqts in the CWA

(3) minimize water qulity, aquatic biota and human health impactsiv. Ways to get at nonpoint

a) 208 + 319 neither have been very successful

208 states submit arewide treatment mgmt plans never really used

319 tried to provide incentives to states to induce regulating non-pt

Reqd submission of a report (see p658) due in 1988

states got approval, lots of study, but little cleanup

b) 303 TMDLs are seen as good way to get to nonpt


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c) 401 certification is potentially another wayvi. Enforcement

a) Smithfield-

309(d): 6 factors to detn the appropriate remedy

Ct all intended to give cts discretion shaping the award

vii. Statutory Provision Breakdown :a) 101: Congressional findings and goal

b) 208: (i) designating areas with substantial water quality control problems and (ii) establishes mechanisms forstates to obtain federal funding for nonpoint source pollution programs

c) 301: (i) prohibits effluent discharge without a permit (NPDES) (ii) establishes technological standards fordischargers

d) 303: designation of water quality stdse) 304: guidelines and factors to be considered in the development of techonoligical standardsf) 307: (i) designation of toxic pollutants and promulgation of toxic effluent stds (ii) promulgation of pretreatment

stds

g) 309: range and scope of federal enforcementh) 311: designation of hazardous substancesi) 319: development of state nonpoint source pollution mgmt programsj) 401: state certification of effluent discharge permitsk) 402: NPDES permitsl) 404: dredged or fill material permitsm) 405: permitting discharge of sewage sludgen) 502: Definitionso) 505: citizen suitsp) 509: judicial review

VI. Air Protection CAAA. Hx, Air Pollution Regs Pre1970

i. Before 1955 completely in the control of state and local govtii. 1955 Air Pollution Control Act research and technical assistance to states, who maintained control regulatingiii. 1967 Air Quality Act federal program based on ambient air quality standards but states were ones to promulgate

stds

iv. 1970 Clean Air Act expanded federal role in air regulationB. Air Quality Standards

i. Goal Nationwide attainment and maintenance of NAAQSii. Regulatory Controls

a) Health-based - safe level of ambient pollutantb) Technology-based amt of pollutant reduction an industry is technically and economically capable of achieving

iii. Pollutant sources Altho the CAA regulates both stationary and mobile sources, permits are only reqd for stationarya) LIM -

iv. NAAQS - Primary v. Secondary - (109) EPA is required to establish primary and secondary NAAQS forcriteria pollutants

a) primary - 109(b)(1) shall be ambient air quality standards the attainment and maintenance of which in thejudgment of the Administrator, based on such criteria and allowing an (1) adequate margin of safety, (2) arerequisite to protect the public health.

b) secondary - 109(b)(2) - ..requisite to protect the public welfare from any known or anticipated adverse effectsassociated with the presence of such air pollutant in the ambient air.

c) criteria - 108(a)(1) - ...publish, and shall from time to time thereafter revise, a list which includes each airpollutant -

(A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare;

(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;

and

(C) for which the air quality had not been issued before 12/31/70, but for which he plans to issue air qualitycriteria under this section.


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40 CFR 50: currently: sulfur dioxide, carbon monoxide, nitrogen dioxide, ozone, particulates, and lead

d) 108 SUM - If EPA finds: (a) the pollutant endangers the public health or welfare AND

(b) pollutant results from numerous or diverse mobile or stationary sources

=> EPA compelled (i.e., non-discretionary duty) to promulgate NAAQS and list as a criteria pollutante) Promulgation REQTs:

108(a)(2) must issue air quality criteria and proposed primary and secondary NAAQS within 12 months of

including on the criteria pollutant list. Must submit for public comment. 307(d) - subject to CAA's rulemaking provisions

EPA's Air Modelling Techniques to set emissions upheld a number of times but also successfully challenged.(ADD?)

f) Economic/Technologic Feasibility

Lead Industry Ass'n v. EPA (DC Cir 1980) EPA may not consider economic and technologic infeasibility

b/c Act is tecnnology forcing.

Whitman v. American Trucking(US 2001) plain reading of109(b) unequivally bars considering costs in

the setting of primary and secondary NAAQS

g) EPA and Judicial Review EPA's 5 Yr Review

109(d)(1) - EPA has nondiscretionary duty to review NAAQS every five years (Sc: this is Chevron step

1!)

Whitman v. ATA EPA's duty to review is mandatory, cannot consider costs and was a proper delegation

by Congress

Judicial Review

American Lung Ass'n v. Browner parties may challenge EPA's final decision with regard to standards

review and revision (to require regulation of SO2 consistent w EPA's finding that it posed a serioushealth threat (CHK and REVISE))

v. SIPS State Implementation Plans: States take EPA's NAAQS and translate them into emission limitations for difftsources. The SIP reqts vary according to a region's attainment classification. (110 SIPs direct states to submit plan federalism achieved by making transportation funding contingent on compliance)

a) Air Quality Control Regions

states must classify - 107(d)(1)(A):

areas as attainment, nonattainment, or unclassifiable

within one year of EPA NAAQS

Classification -

attainment - 107(d)(1)(A)(ii) meet primary and secondary NAAQS for a given criteria pollutant

nonattainment - 107(d)(1)(A)(i) does not meet

unclassifiable - cannot be determined based on current information

b) EPA must -

107(d)(1)(B) promulgate each state's classification designation within 1 yr

110(k)(1) determine completeness of SIP w/in 6 months

110(k)(2-4) determine whether the SIP meets reqts w/in 12 months

may approve, disapprove, partially approve, or conditionally approve

approval based solely on criteria from 110(a)(2) and may NOT consider economic/technological

feasibility (Union Electric Co v. EPA) states are permitted to set standards that are stricter than those required under the CAA (Union Electric

Co v. EPA) and EPA cannot RJ on the basis that reqts are infeasible (CHK)

(from sup CHK) EPA may, however, consider technological/economic feasibility and/or disapprove as

insufficiently stringent, where state waits to end of 3 yrs to meet (Duquesne Light Co v. EPA)

conditional approval - 110(k)(4) State must meet EPA's conditions w/in 1 yr or the SIP is deemed

disapproved

GM SIP is only effective upon EPA approval

c) EPA may:

110(f)(1) waive compliance deadline for stationary sources where sufficient control measures are


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unavailable + continued operation is essential to public health or welfare

d) SIP Reqts -

110(a)(1) -

after reasonable notice and public hearings and

within 3 yrs (or such shorter period as Administrator may prescribe) [of NAAQS promulgation OR

redesignation as nonattainment] (INT EPA's 5 yr review)

plan which provides for implementation, maintenance, and enforcement of such [primary/secondary]

standard in each air quality control region (or portion thereof) within such State

110(a)(2) More Specific Content Reqts - SUM - enforceable emission limitations, monitoring, permit

program for new/mod construction, prohibitions to prevent deterioration/ensure compliance, adequatepersonnel/funding/authority

(A): include enforceable emission limitations and other control measures, means or techniques

(including economic incentives such as fees, marketable permits, and auctions of emission rights), aswell as schedules and timetables for compliance, as may be necessary or appropriate to meet theapplicable requirements of this Chapter;

(B) provide for establishment and operation of appropriate devices, methods, systems and procedures

necessary to -

(i) monitor, compile, and analyze data on ambient air quality and

(ii) upon request, make such data available to the Administrator;

(C)permit program for modification and contruction of any stationary source

(D)(i)[prohibit] any source or other type of emissions activity... which will (I) contribute significantly to

nonattainment in or interfere with maintenance.. (II) prevent significant deterioration of air qualit

envtl law ol - appel - uga 2011

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