Environmental Law
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Environmental Law
Environmental Law
Quimbee Outlines
Table of Contents
Quickline
I.
5
Environmental Regulation
25
A. Risk
25
B. Types of Regulation
27
C. Economics of Regulation
29
D. Environmental Justice
31
II. Federalism
32
A. Federal Authority to Regulate
32
B. Limits on States’ Authority
35
C. Cooperative Federalism
39
III. Administrative Law and the
Environment
39
A. Overview of Agencies
39
B. Administrative Procedure Act
41
IV. Environmental Torts
51
A. Unique Issues
51
B. Nuisance
57
C. Trespass
60
D. Negligence
60
E. Strict Liability
61
F. Toxic Torts
62
V. National Environmental Policy Act
(NEPA)
62
A. Brief History
63
B. Council on Environmental Quality
63
C. Calvert Cliffs
64
D. Complying with NEPA
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E. Environmental Impact Statement
Process and Contents
VI. Air Pollution
72
78
C. Convention on International Trade
in Endangered Species of Wild Fauna
and Flora (CITES)
118
A. Clean Air Act
78
D. Marine Mammal Protection Act
(MMPA)
B. Stationary Sources of Pollution
79
E. Fisheries Management
C. Mobile Sources of Pollution
88
D. Acid Rain Program
89
E. Preventing Ozone Depletion
90
F. Global Climate Change
VII. Water Pollution
A. Clean Water Act
B. Safe Drinking Water Act (SDWA)
VIII. Rights to Water and Coastal
Management
125
93
B. Resource Conservation and
Recovery Act (RCRA)
125
C. Comprehensive Environmental
Response, Compensation, and
Liability Act (CERCLA, aka
Superfund)
133
93
102
103
B. Surface Water
107
C. Littoral Rights
108
D. Zones of the Ocean
108
E. Coastal Zone Management Act
111
B. Endangered Species Act (ESA)
125
91
103
A. Brief History of Wildlife Protection
in the United States
123
A. Difference Between RCRA and
CERCLA
A. Access to Water
IX. Wildlife and the Environment
X. Waste Management, Disposal, and
Clean-Up
119
114
XI. Regulating Toxic Substances
137
A. Toxic Substances Control Act (TSCA) 137
B. Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA)
141
C. Federal Food, Drug, and Cosmetic
Act (FFDCA)
142
XII. International Environmental Law
143
A. Key Principles
143
114
B. Sources of Law
146
115
C. Enforcing International
Environmental Law
149
D. International Trade and the
Environment
151
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F. Toxic Torts
Toxic torts are a broad category of personal-injury torts in which the plaintiff claims that his
or her injury was the result of an exposure to chemicals or other toxic substances. Exposure
to the chemical or hazard in toxic-tort cases typically happens over a longer period of time,
compared to a one-time exposure to harm, and injuries traditionally develop after a latency
period after the exposure. [Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of
Persuasion, and Statistical Evidence, 96 Yale L.J. (1986).]
1. Sources of Toxic Torts
Toxic torts are often class-action lawsuits affecting large groups of people. The most
common forms of toxic torts include cases involving occupational exposure, such as
construction workers exposed to asbestos; home-based product contamination, such as
drywall containing formaldehyde; pharmaceutical exposure, such as contaminated or
defective medicine; or broad environmental exposure to toxins through water or air.
Because of the nature of many toxic-tort claims, toxic torts are not always considered to
be purely environmental-law issues and fall into various niche areas of law, including
employment/workers’ rights, medical malpractice, and consumer product.
a. Federal Authority over Toxic-Tort Litigation
Federal law statutes that pertain to toxic substances and the disposal of toxic waste
establish standards that plaintiffs can use to sue violators of the statutes, including:
• the RCRA, which grants the EPA the authority to control and oversee the storage,
disposal and transportation of hazardous waste materials, [42 U.S.C. § 6901.]
• the TCSA, which grants the EPA the authority to control the testing and record-keeping
requirements for any use of chemical substances, and [15 U.S.C. § 2601.]
• the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
which created a federal “superfund” to clean and maintain hazardous-waste sites or
hazardous-waste materials that may have been released as part of an accident or spill. [42
U.S.C. § 9601.]
V. National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) is one of the most influential pieces of American
environmental law. Beyond its impact in the United States, NEPA has been used as the
inspiration to create similar environmental laws in over 100 countries around the world. The
universal applicability of NEPA stems from the fact that NEPA does not focus on regulation, but
instead emphasizes the importance of information-gathering and creates procedural standards for
the decision-making process. [42 U.S.C. § 4321 et seq. (1969).]
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A. Brief History
During the late 1960s and early 1970s, the attitude toward environmental protection was
changing in the United States, both politically and culturally. In 1970, the first Earth Day
celebration was observed and NEPA was signed into law by President Nixon. NEPA is a
culmination of “recognizing the profound impact of man’s activity on the interrelations of all
components of the natural environment” and the public belief that the government has a
responsibility to protect the environment and prevent any future damage caused by the
actions of federal agencies. [42 U.S.C. § 4331(a).]
1. “Stop-and-Think” Statute
NEPA does not create regulatory standards for the environment in the same way that t he
CAA regulates air pollution or the CWA regulates water pollution. A broad goal of NEPA
is to “declare a national policy which will encourage productive and enjoyable harmony
between man and his environment.” [42 U.S. Code § 4321.] In order to achieve this goal,
NEPA imposes a procedural requirement that all federal agencies must publish
information and research less-harmful alternatives to any proposed actions that could
impact the environment. This emphasis on information instead of regulation is why NEPA
is often called a stop-and-think statute.
B. Council on Environmental Quality
When NEPA was enacted, it created the Council on Environmental Quality (CEQ). The CEQ is
under the Executive Office of the President and is tasked with overseeing the i mplementation
of NEPA.
1. Duties of the Council on Environmental Quality
As outlined in Section 204 of NEPA, some of the most important duties of the CEQ are
to interpret NEPA requirements, help develop an environmental -quality report, and
develop and recommend policies.
a. Interpret NEPA Requirements
The CEQ is responsible for interpreting the requirements of NEPA through regulations
that federal agencies follow when implementing NEPA. The CEQ codifies the
regulations and definitions of NEPA requirements in Parts 1500-1508 of the Code of
Federal Regulations (CFR).
b. Environmental Quality Report
The CEQ is required to assist the President in creating the annual Environmental
Quality Report. [42 U.S.C § 4341(1).]
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c. Develop and Recommend Policies
The CEQ develops and recommends policies to the President “to foster and promote
the improvement of environmental quality,” in order meet conservation and health
goals set for the country. [42 U.S.C § 4341(4).]
C. Calvert Cliffs
A seminal case that provided the first major interpretation of NEPA, and influenced
subsequent NEPA cases, is Calvert Cliffs’ Coordinated Committee v. Atomic Energy Commission.
In Calvert Cliffs, the Calvert Cliffs Coordinating Committee sued the Atomic En ergy
Commission (AEC), claiming that the commission was not adequately following NEPA
requirements and was not taking any of the issues raised in the Environmental Impact
Statement (EIS) into consideration during the decision -making process. The commission
claimed that the NEPA requirements were vague and allowed for agency discretion. The
court found that the commission was required to consider the environmental impacts raised,
and most importantly, the court established that an agency’s responsibility und er NEPA is
judicially enforceable. The court made additional findings about the importance of NEPA,
including the applicability of NEPA to all agencies and the procedural duties that agencies
must follow. [Calvert Cliffs' Coordinated Committee v. Atomic Energy Commission, 449 F.2d
1109 (D.C. Cir. 1971).]
1. Application to All Agencies
NEPA makes environmental protection a priority for all federal agencies and departments
by imposing procedural administrative requirements for any proposed federal action that
might have an impact on the environment.
2. Procedural Duty under Section 102
One of the most important procedures imposed by NEPA includes the r equirement to
create an EIS, a document used in the decision-making process that outlines the
environmental impacts of a proposed action. The court in Calvert Cliffs held that an
agency’s duty under Section 102, including the duty to create an EIS, is a st rict standard
and agencies must comply with this requirement of NEPA. [ Calvert Cliffs' Coordinated
Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971).]
3. Judicial Review under NEPA
Calvert Cliffs broadly raised the issue of the role of judicial review under NEPA. The court
had an active role in ensuring that the AEC complied with NEPA and also established the
ability of a court to compel an agency to fully comply with NEPA requirements. [ Calvert
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Cliffs' Coordinated Committee v. Atomic Energy Commission , 449 F.2d 1109 (D.C. Cir.
1971).]
a. Citizen Suits
The right of judicial review is not built into NEPA, as NEPA has no provision for citizen
suits, but judicial review can still be pursued under the Administrative Procedure Act.
b. Standard of Review
The arbitrary-and-capricious standard is used to evaluate informal agency actions, and
is typically applied by courts when evaluating an agency’s decision under NEPA. The
arbitrary-and-capricious standard is highly deferential and does not allow courts to
evaluate the merits of an agency’s decision, but only to evaluate whether the agency’s
decision was arbitrary and capricious.
Example:
The Army Corps of Engineers (the corps) planned to build multiple dams in Oregon.
The corps prepared an EIS, but after the final EIS was released, two new reports were
released indicating that there could be additional negative environmental impacts if
the dams were constructed. The corps proceeded with the dam project and nonprofit
environmental-interest groups sued, claiming that under NEPA, the corps was required
to create a supplemental EIS that evaluated the impact highlighted in the new reports.
The United States Supreme Court used the arbitrary-and-capricious standard to
review the corps’ decision, and found that under this standard, it could not make a
decision, based on the scientific merit, on whether the new reports warranted the
creation of a supplemental EIS. The Court noted that deference should be given to the
agency to allow the agency to decide whether a supplemental EIS was required under
NEPA. [Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989).]
D. Complying with NEPA
Under NEPA, an EIS is required for any “proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment.” [42 U.S.C. § 4332(C).]
At the outset of a federal action, the threshold issue that an agency must address is whether
an EIS must be created in order to comply with NEPA. Three possibilities in the initial
administrative phase determine whether an EIS must be created:
• the agency’s action is exempt from NEPA requirements and no EIS is required;
• it is unclear whether the agency’s action will require an EIS, so an Environmental Assessment (EA)
is prepared to determine if the creation of an EIS would be appropriate; or
• the agency’s action requires the preparation of an EIS.
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1. Exempt from NEPA
Agency proposals exempt from NEPA requirements include: (1) statutory exem ptions, (2)
statutory conflicts, (3) categorical exclusions, and (4) exemptions for functionally
equivalent actions.
a. Statutory Exemption
When Congress creates an agency, it can create a statutory exemption that relieves
the agency of the responsibility to comply with NEPA. Generally, the EPA is required
to comply with NEPA. However, there are statutory exemptions in Section 511(c) of
the CWA and Section 7(c) of the Energy Supply and Environmental Coordination Act
that exempt the EPA from NEPA requirements by stating that no action taken under
the CWA or CAA, respectively, “shall be deemed a major Federal action significantly
affecting the quality of the human environment within the meaning of” NEPA. [33
U.S.C. § 1371, 15 U.S.C. 793(c)(1).]
b. Statutory Conflicts
If an agency has an obligation under a statute that would make complying with NEPA
requirements impossible or burdensome on the agency, then NEPA requirements
“must yield” to the statutory authority. [Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426
U.S. 776 (Okla. 1976).]
c. Categorical Exclusion
If an agency’s actions will not “individually or cumulatively have a significant effect on
the human environment,” then there is a categorical exclusion to any NEPA
requirement to complete an EIS. [40 C.F.R. § 1508.4.]
d. Functionally Equivalent Actions
If a statute requires actions or duties that are functionally equivalent to NEPA, then
the agency does not have to comply with the specific NEPA requirements, as the
agency will still be performing the actions required under NEPA. This exception exists
in order to prevent redundant actions and analyses. [ Envtl. Def. Fund, Inc. v. EPA, 489
F.2d 1247 (1973).]
2. Actions Requiring Environmental Assessment
If an agency’s action is not exempt from NEPA through any applicable exception, but the
agency is unsure whether a full EIS will be required for their proposed action, the agency
can prepare an EA. There is no exhaustive list of actions requiring an EA; instead, it is at
the agency’s discretion to create an EA in order to determine the next step in the NEPA
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process. An EA is designed to assist the agency in determining whether the action would
cause significant environmental effects, and therefore trigger the need to create a more
detailed EIS. An EA must include brief discussions of:
• the need for the proposal;
• alternatives to the proposal, including alternative uses of the resources used for the proposal;
• the environmental impact of the action and possible alternatives;
• and the agencies and persons consulted in the preparation of the EA.
[40 C.F.R. § 1508.9.]
a. Finding of No Significant Impact
If the outcome of the EA is that there will be no significant environmental impact,
then the agency is not required to complete an EIS. Instead, the age ncy will prepare a
Finding of No Significant Impact (FONSI). A FONSI includes the original EA, or a
summary of the assessment, which details why the agency’s action will not
“significantly [affect] the quality of the human environment” and will not require an
EIS. [40 C.F.R. § 1508.13.]
i. Public Review
The FONSI must be made available for public review 30 days before the final
determination not to prepare an EIS, if:
• the action would typically need an EIS, or
• the action has no precedent and has not been done by the agency before.
[40 C.F.R. § 1501.4(e)(2)(i-ii).]
3. Actions Requiring Environmental Impact Statement
Any “proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment” will require an EIS. [4 2 U.S.C. § 4332(C).] The decision
as to whether an agency must prepare an EIS is much more nuanced than the face value
of this sentence. The key words and phrases of the statement have particular meanings in
this context, and understanding how they are used is necessary to determining when an
EIS is required.
a. Proposal
A proposal is broadly viewed as any federal agency report or plan that details a
decision to take action. An EIS only needs to be prepared at "the time at which [the
agency] makes a recommendation or report on a proposal for federal action."
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[Aberdeen Rockfish R. Co. v. SCRAP, 422 U. S. 289 (1975).] If an agency is only
contemplating an action, the NEPA process will not commence because the
consideration has not crossed the threshold of becoming a proposal.
i. Proposal in Fact
A proposal does not have to be formally created for it to be considered as a
proposal under the definitions set out in NEPA, as a “proposal may exist in fact as
well as by agency declaration that one exists.” [ 40 C.F.R. § 1508.23.] This means
that if an agency has gone beyond a stage of simply contemplating an action, but
has not officially declared a proposal or taken formal steps to create a proposal for
legislation, it still may be required to create an EIS if the agency’s actions could be
considered a de facto proposal.
b. Major Federal Action
In determining whether an agency is proposing a major federal action , the three
elements of major, federal, and action must be evaluated separately. The
determination of whether a proposal is a federal action is typically more
straightforward than determining whether the proposal is considered major, because
the determination of a major action is linked to the determinati on of whether the
action will significantly affect the environment, which is the most contentious
determination in this section of NEPA.
i. Federal
The EIS requirements of NEPA only apply to federal actions. Private actions carried
out by private industries, or any state or local actions, are not subject to NEPA,
and are not required to have an EIS. Any action that a federal agency performs is,
by its nature, a federal action. The CEQ regulations define federal actions as the:
• adoption of official policies, treaties, or formal documents that will alter agency
programs;
• adoption of plans “upon which future agency actions will be based,” including plans
that involve federal resources or alternative uses of federal resources;
• adoption of programs that will implement policies or plans, or agency decisions that
implement statutory programs; or
• approval of projects, including “actions approved by permit or other regulatory
decision as well as federal and federally assisted activities.”
[40 C.F.R. § 1508.18(b)(1-4).]
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1) Federal Involvement
Private actions, or other nonfederal actions, can become “federal actions”
under NEPA if there is a substantial amount of federal involvement, either
through the approval of federal permits or through federal funding. [ See
Sugarloaf Citizens Assn. v. FERC, 959 F.2nd 508 (4th Cir. 1992); Sw. Williamson
County v. Slater, 243 F.3d 270, (6th Cir. 2001); Mineral Policy Center v. Norton,
292 F. Supp.2d 30 (D.D.C. 2003).]
ii. Action
An action is broadly defined as “new and continuing activities, including projects
and programs entirely or partly financed, assisted, conducted, regulated, or
approved by federal agencies” or any “new or revised agency rules, regulations,
plans, policies, or procedures.” [40 C.F.R. § 1508.18(a).]
1) Inaction is Not Action
Courts have typically found that an agency’s inaction is not considered an
action under NEPA.
Example:
The Alaska Department of Fish and Game planned to kill wolves in order to
protect other wildlife. The wolf killings would take place on lands controlled by
the Department of the Interior, but the department did not intervene to stop
the killing. The Defenders of Wildlife believed that the Department of the
Interior had a responsibility to create an EIS on the potential environmental
impact of the wolf killings, because the department’s inaction was considered
an action under NEPA. The Court held that NEPA does not require agencies to
prepare an EIS for a failure to act, because this wide application of the EIS
requirement would “trivialize” NEPA. [Defenders of Wildlife v. Andrus, 627
F.2d 1238 (D.C. Cir. 1980).]
iii. Major
In the CEQ regulations, the term major “reinforces but does not have a meaning
independent of significantly,” in reference to the requirement that an EIS must be
prepared for actions “significantly affecting” the environment. This means that in
order to determine whether an action is major, the significance of the action must
also be determined. [40 C.F.R. § 1508.18.]
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c. Significantly
The term significantly, as used in NEPA, refers to both the context and intensity of an
action. [40 C.F.R. § 1508.27.]
i. Context
Part of the significance of an action is determined by the context of where the
action takes place and who will be affected by the action. Broadly, the effects of
the action should be viewed through different contexts, including “ society as a
whole (human, national), the affected region, the affected interests, and the
locality.” [40 C.F.R. § 1508.27(a).] When conducting context analyses, agencies
should review short-term and long-term effects.
ii. Intensity
The intensity, or severity, of the action is also used as a factor to determine the
significance of the action. Ten factors are used to help agencies evaluate the
intensity of an action, including:
• weighing negative and positive impacts to determine whether there will be a
significant effect on the environment, even if positive effects will outweigh negative
effects;
• assessing the degree that human health and safety will be affected;
• determining whether there are "unique characteristics of the geographic area,"
including historic features, cultural significance, proximity to farmlands, wetlands or
parks, or other areas considered to be "ecologically critical;”
• assessing the extent that negative effects on the "human environment" will be
considered "highly controversial;”
• assessing the extent that negative effects on the "human environment" are uncertain
or present unknown risks;
• determining the influence that this action may have in creating a precedent for other
actions in the future that may pose significant effects;
• determining whether the action and its impacts are independent, or related to other
actions that may have "individually insignificant but cumulatively significant impacts;”
• assessing the degree that the action may adversely affect any structure that is
currently listed, or eligible to be listed, in the National Register of Historic Places, or
may adversely affect any other historical or cultural resources;
• assessing the degree to which an action could adversely affect endangered species,
threatened species, or critical habitat protected under the ESA; or
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• determining whether the action would violate existing federal, state, or local laws that
protect the environment.
[40 C.F.R. § 1508.27(b)(1-10).]
1) Highly Controversial
The requirement to weigh the controversy of an action has been litigated in
many cases due to the unclear nature of when something is considered
controversial. Issues of a disputed controversy can be cultural or scientific, and
courts typically exercise their own discretion in this matter, as th ere is no
formal test to determine whether an issue is highly controversial under NEPA.
Example:
The right of Native American tribes to hunt whales, and the scientific
uncertainty of the impact of the killings, was deemed by the court to be
controversial enough, both socially and scientifically, to require an EIS.
[Anderson v. Evans, 371 F.3d 475 (9 th Cir. 2004).]
Compare:
In Greenpeace Action v. Franklin, the court found that a controversy did not
exist, even though experts disagreed on the outcome of a s cientific study
regarding the reduction of local sea lion populations if excessive harvesting of
pollock was allowed in the Gulf of Alaska [Greenpeace Action v. Franklin, 14
F.3d 1324 (9th Cir. 1982.]
iii. Balancing Test
In contrast to the context and intensity standards put forward by the CEQ in the
CFR, courts have used a two-part balancing test to define “significantly.” The
balancing test considers:
• the extent to which the action would cause greater adverse effects in an area
compared to the existing uses; and
• the quantitative adverse environmental effects of the action, which include the
“cumulative harm” that would occur if the action added to “existing adverse conditions
or uses in the affected area.”
[Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972).]
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d. Effects
Within the regulations for NEPA, the terms “effects” and “impacts” are synonymous,
and include “ecological . . . aesthetic, historic, cultural, economic, social, or health,”
which can either be direct or indirect. Direct effects are effects “caused by the action
and occur at the same time and place,” whereas indirect effects are effects caused by
the action that are foreseeable, but that occur removed from the action, either by
time, location, or both. [40 C.F.R. § 1508.8.]
e. Human Environment
The human environment is defined as “the natural and physical environment and the
relationship of people with that environment.” [ 40 C.F.R. § 1508.14.] This definition of
human environment does not include any reference to economic issues or social
effects, which means that any action that would only impact the economy or social
environment will not be considered and would not require an EIS. However, if
economic or social effects are intertwined with the effects on the human
environment, the effects can be addressed in the EIS.
E. Environmental Impact Statement Process and Contents
Once an agency has determined that its proposed action will require an EIS, the agency must
file a notice of intent, begin the scoping process, and complete a draft EIS before a final EIS is
published.
1. Notice of Intent
The Notice of Intent is the first action required when an agency creates an EIS. The
Notice of Intent is filed by the agency in the Federal Register and provides an overview
of the agency’s proposed action, proposed alternatives, the scoping process that the
agency will undertake in the EIS process, and information for a point of contact at the
agency who can answer public questions about the action and the creation of the EIS. [ 40
C.F.R. § 1508.22.]
2. Scoping
Scoping is a term used in NEPA that refers broadly to the process of “determining the
scope of issues to be addressed and for identifying the significant issues related to a
proposed action.” [40 C.F.R. § 1501.7.] In addition to seeking involvement from federal
agencies and the public during the creation of the EIS, the most substantive requiremen t
placed on the agency by the CEQ regulations is the requirement to determine the scope
of the issues that will be analyzed in the EIS.
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a. Purpose and Need Statement
An EIS must contain a Purpose and Need statement that is featured at the start of the
EIS. The Purpose and Need statement simply explains the agency’s purpose and the
need for the proposed action. [40 C.F.R. § 1502.13.]
b. Scope of EIS
Determining the scope of the EIS is an element of the broader scoping process. The
scope of the EIS specifically refers to the actions, alternatives, and impacts that are
analyzed within the EIS. The agency preparing the EIS must consider and evaluate
three types of actions, three types of alternatives, and three types of impacts related
to the proposed action. [40 C.F.R. § 1508.25.]
i. Actions
The three types of actions that the CEQ regulations put forward for analysis within
an EIS include: (1) connected actions, (2) cumulative actions, and (3) similar actions.
1) Connected Actions
Connected actions are actions so closely related to the proposed action that
the connected actions must also be addressed in the same EIS. Actions are
considered to be connected to the original action if:
• the original action will “automatically trigger” other actions that would require
EISs,
• the original action cannot commence or proceed unless the other actions are
performed before or concurrently with the proposed action, or
• the actions are “interdependent parts of a larger action and depend on the larger
action for their justification.”
[40 C.F.R. § 1508.25(a)(1)(i-iii).]
2) Cumulative Actions
Cumulative actions are actions that have cumulatively significant impacts when
viewed together with the proposed action. Cumulative actions are distinct and
can be differentiated from connected actions because cumulative actions are
viewed only in light of the cumulative effect of their impacts, whereas
connected actions are more significantly related through some type of
triggering effect or interdependence. [40 C.F.R. § 1508.25(a)(2).]
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3) Similar Actions
Similar actions are actions that have some unifying similarities to the proposed
action, such as related geography or proximity, or similar timing. If the actions
are similar, it is efficient for the agency to analyze the actions within th e same
EIS. It may not serve the agency to review similar actions in the same EIS, but
if the actions are similar and can be best analyzed together, it is appropriate to
include similar actions in the EIS. [40 C.F.R. § 1508.25(a)(3).]
ii. Alternatives
The issue of alternatives, and what types of alternatives should be included in an
EIS, has been addressed in case law as well as in regulations codified by the CEQ.
1) Natural Resources Defense Council, Inc. v. Morton
In Natural Resources Defense Council, Inc. v. Morton, the Department of the
Interior had proposed an action to lease sale drilling rights for offshore oil and
gas in light of the American energy and oil crisis in the 1970s. The Department
of the Interior did not address alternatives to the oil crisis a nd believed that
alternatives to the proposed action only needed to be included in the EIS if
the alternatives were actions that the department could adopt and implement.
The court did not agree with the department of the Interior and held that the
requirement to list alternative actions in an EIS was broad and that all
alternatives should be listed and analyzed within the EIS, even if the proposed
alternatives were outside of an agency’s authority. [Natural Resources Defense
Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972).]
2) Post-Morton view of Alternatives
In subsequent decisions, the United States Supreme Court generally agreed
with the standards set forward in Morton, but did lessen the very broad view
of how many alternatives, and what type of alternatives, must be included in
an EIS. Instead, the Court set forth the idea that agencies should use “common
sense” in presenting alternatives rather than evaluating “every alternative
device and thought conceivable by the mind of man.” [ Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978).]
3) CEQ on Alternatives
Under the CEQ regulations, the three types of alternatives that must be
considered by an agency include: (1) a no-action alternative, (2) other
reasonable courses of action, and (3) mitigation. The requirement of
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“reasonable courses of action” can be viewed as the common -sense approach
to analyzing alternatives that the Supreme Court outlined in Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978).
4) Mitigation
Mitigation is one alternative that must be analyzed in an EIS. Although the
elements of mitigation must be addressed within the EIS, NEPA does not
create a substantive duty that the agencies actually implement any of the
mitigation issues outlined in the EIS. The mitigation factors that should be
evaluated within an EIS include the ability to:
• avoid the impacts of the action by not taking that action, or parts of the action;
• minimize the impacts of the action by limiting the extent of the action;
• rectify the impacts of the action by repairing or restoring the environment that
will be affected by the action;
• introduce preservation measures to reduce the impact of the action over time;
and
• replace or substitute environments that will be impacted by the action.
[Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989); 40 C.F.R. §
1508.20.]
iii. Impacts
The three types of impacts that the CEQ regulations require for analysis within an
EIS include: (1) direct, (2) indirect, and (3) cumulative.
1) Direct Impact
A direct impact is “caused by the action and occur[s] at the same time and
place” as the action. [40 C.F.R. § 1508.8(a).]
2) Indirect Impact
An indirect impact is a foreseeable impact that is caused by the action but
occurs at a time or location removed from the original action. [ 40 C.F.R. §
1508.8(b).]
3) Cumulative Impact
A cumulative impact is the impact that results from the incremental impact of
the proposed action, and all other actions that have previous ly been taken or
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will likely occur in the future. When assessing cumulative impacts for an EIS,
the agency must look at all actions, including federal and non-federal
governmental actions, as well as actions from private industry. Actions that
can be considered when assessing a cumulative impact do not have to be
official proposals within the meaning of NEPA, but can include any actions that
are being contemplated. [40 C.F.R. § 1508.7.]
Example:
The Army Corps of Engineers (the corps) wanted a permit to fill wetlands in
Texas. Other actions involving the wetlands were being contemplated, but
were not official proposals that had been submitted to the corps. The court
found that even if actions were not official proposals, the corps still needed to
consider the cumulative impact of all the actions in their EA as long as the
actions were “reasonably foreseeable.” [Fritiofson v. Alexander, 772 F.2d 1225
(5th Cir. 1985).]
iv. Worst-Case Analysis
NEPA previously had a requirement that agencies must include a worst -case
analysis in their EIS, which would detail potential worst -case risks that could occur
as a result of the action. The worst-case regulation was revoked, and the United
States Supreme Court confirmed that NEPA “does not require a ‘worst case
analysis’” in an EIS. [Robertson v. Methow Valley Citizens Council, 490 U.S. 332
(1989).]
3. Draft Environmental Impact Statement
Once the EIS has been created, the draft is distributed to other agencies and the public in
order to commence the comment period.
a. Comment Period
After publishing the draft EIS, the agency is required to obtain comm ents from any
other federal agency that may have jurisdiction or expertise on the subject pertaining
to the proposed action. The agency is also held to a less -formal standard of only
“requesting” comments from state agencies, the public, and, if effects of the action
may occur on a reservation, Native American tribes. [ 40 C.F.R. § 1503.1.]
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i. Responding to Comments
Before publishing the final EIS, the agency must respond to comments made on
the draft EIS. The comments made on the draft EIS must be attached to the final
EIS, and the agency can respond to comments by:
• modifying the alternatives originally discussed in the EIS;
• developing new alternatives not discussed in the EIS;
• supplementing or improving the existing analyses;
• making any factual corrections necessary; or
• taking no action and explaining why the comments given do not require any response
or action by the agency, with supporting sources.
[40 C.F.R. § 1503.4.]
4. Final Environmental Impact Statement
Once the agency has addressed or incorporated comments into the draft EIS, the final EIS
can be published. Once the final EIS is published, a 30 -day waiting period begins, which
requires that an agency wait 30 days before making a final decision on the action. [40
C.F.R. § 1502.9(b).]
a. Environmental Protection Agency Review of Environmental Impact
Statement
The EPA can review EISs prepared by agencies not only to assess the environmental
impact of the proposed action, but also to assess the adequacy of the EIS prepared by
the agency. [42 U.S.C. § 7609(a).]
5. Record of Decision
The final step in the EIS process is the Record of Decision. The Record of Decision
broadly summarizes the EIS and describes the agency’s decision, the alternative actions
that the agency considered, and the mitigation plan. The Record of Decision is typically
published in the Federal Register. [40 C.F.R. § 1505.2 .]
6. Supplemental Environmental Impact Statement
Although the end of the EIS process is publishing the final EIS and the Record of
Decision, a supplemental EIS is an additional step that can occur after the fact. A
supplemental EIS may be necessary if:
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• the agency makes “substantial changes” to the action pertaining to the “environmental
concerns” of the action, or
• there are new circumstances related to the “environmental concerns” of the action or the
potential impacts of the action.
[40 C.F.R. § 1502.9(c).]
VI. Air Pollution
Air pollution is a transboundary issue that has global implications for the well -being of humans.
The negative effects of air pollution can be visible or can result in unseen but catastrophic
destruction. Air-quality standards are regulated by law, through national and international
cooperation, in order to protect the health and welfare of humans and the surrounding
environment.
A. Clean Air Act
The CAA is a robust federal law, administered by the EPA, that regulates air pollution in the
U.S. The EPA and states are responsible for enforcing provisions in the CAA, including
regulating pollution from stationary and mobile sources, protecting the stratospheric ozone
layer, and implementing a market-based plan to reduce acid rain. [42 U.S.C. § 7401.]
1. Brief History
The Air Pollution Act of 1955 was the first federal legislation governing air pollution in
the U.S. and was the precursor to the CAA. Prior to federal regulation, air-quality
standards were the responsibility of state and local governments. The Air Pollution Act of
1955 did not contain a provision for the government to control or regulate air pollution.
Instead, the Act only provided funding for the federal government to research air
pollution.
a. Clean Air Act of 1963
The Clean Air Act of 1963 was the first piece of federal legislation that allowed the
federal government to control air pollution nationally. In 1967, the Air Quality Act was
enacted to grant further authority to the federal government to control air pollution,
including interstate air pollution. [Christopher D. Ahlers, Origins of the Clean Air Act: A
New Interpretation, 45 Envtl. L. 74, 119 (2015).]
b. Clean Air Act of 1970
The foundation of the CAA that still governs air pollution regulation today was
enacted in 1970. The passage of the CAA in 1970 increased the federal government’s
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ability to control and regulate air pollution nationwide. The CAA of 1970 distinguished
between pollution coming from stationary or mobile sources and created unique
regulation standards for each source of pollution, with specific roles for the federal
government and state governments. The CAA of 1970 introduced four regulation
initiatives that dictate how stationary sources of air pollution are regulated:
• National Ambient Air Quality Standards (NAAQS),
• State Implementation Plans (SIP),
• New Source Performance Standards (NSPS), and
• National Emission Standards for Hazardous Air Pollutants (NESHAP).
[Clean Air Act Amendments of 1970, Pub. L. No. 91-604.]
c. 1977 Amendments
In 1977, multiple amendments to the CAA added new regulations and provisions that
refined existing regulations. Most significantly, the 1977 amendments introduced the
Prevention of Significant Deterioration (PSD) program, which defined standards that
apply to existing sources or new major sources of pollutants within attainment areas
of NAAQS. The CAA amendments of 1977 also addressed regulation of nonattainment
areas of NAAQS, adding additional permitting requirements in order to ensure that
NAAQS could be met or maintained. [Clean Air Act Amendments of 1977, Pub. L. No.
95-95.]
d. 1990 Amendments
The most recent major amendments to the CAA were implemented in 1990. These
amendments enhanced the regulations put in place by previous amendments, and
implemented new programs designed to add further environmental protection. The
federal government’s authority to control air pollution also continued to increase. Key
provisions introduced under the 1990 amendments include the Acid Deposition
Control program, plans to reduce or remove the use of ozone-depleting chemicals,
additional controls for National Emission Standards for Hazardous Air Pollutants, and
expanded requirements for attainment areas under NAAQS. [Clean Air Act
Amendments of 1990, Pub. L. No. 101-549.]
B. Stationary Sources of Pollution
The CAA broadly groups sources of air pollutants as either stationary or mobile. Section I of
the CAA regulates stationary sources of pollution, includin g pollution from factories, power
plants, chemical plants, and refineries. Pollution from stationary sources is regulated either
through NAAQS or through regulation of the technology that controls pollution, by setting
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standards or permitting processes for new and existing sources of pollution. This type of
regulation includes New Source Review, New Source Performance Standards, and National
Emission Standards for Hazardous Air Pollutants.
1. National Ambient Air Quality Standards (NAAQS)
NAAQS (pronounced colloquially as “knacks”) are standards set for a list of specific
pollutants, known as criteria pollutants. The permissible levels of the aptly named criteria
pollutants allowed under NAAQS are set according to air-quality criteria based on health
or environmental standards and guidelines. NAAQS set the maximum pollutant
concentration for criteria pollutants rather than setting limitations on pollutant sources.
The EPA must review these limits at least every five years. The six criteria pollutants
regulated by NAAQS are:
• ground-level ozone (O3),
• particulate matter (PM),
• carbon monoxide (CO),
• lead (Pb),
• sulfur dioxide (SO2), and
• nitrogen dioxide (NO2).
[42 U.S.C. § 7408.]
a. Determining Criteria Pollutants
An air pollutant can be added to the list of criteria pollutants if the emissions are
“[reasonably] anticipated to endanger public health or welfare” or if the emissions
“[result] from numerous or diverse mobile or stationary sources.” [42 U.S.C. § 7408(a)(b).]
i. NRDC v. Train
The Natural Resources Defense Council (NRDC) filed a lawsuit against the EPA in
order to have lead listed as a criteria pollutant. NRDC claimed that under Section
108 of the CAA (42 U.S.C. 7408), lead was qualified to be listed as a criteria
pollutant because it met both standards, as it had an adverse effect on public
health or welfare and was emitted from multiple sources. However, the EPA
maintained that even if a pollutant meets the standards of Section 108, it would
still be within the discretion of the EPA administrator whether to list the pollutant
as a criteria pollutant or pursue another form of regulation. In this case, the EPA
had chosen instead to regulate lead by controlling lead content in gasoline. The
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court held that the requirements in Section 108 did not allow for an alternative
form of regulation and that the EPA did not have discretion on whether to list lead
as a criteria pollutant, because both requirements of Section 108 had been met. As
a result of NRDC v. Train, lead is one of the six criteria pollutants sub ject to
NAAQS. [NRDC v. Train, 411 F. Supp. 864 (S.D.N.Y. 1976); NRDC v. Train, 545 F.2d
320 (2d Cir. 1976) (affirming the lower court’s ruling that lead must be listed as a
criteria pollutant).]
b. Setting Standards
NAAQS are set according to two different standards, primary and secondary, designed
to protect different interests with differing levels of acceptable concentrations. The
standards set out by NAAQS are the concentration of the criteria pollutant that the
EPA has determined is acceptable to be present in the ambient air in order to still
meet the goals of either the primary or secondary NAAQS.
i. Primary National Ambient Air Quality Standards
Primary NAAQS are set to allow for an “adequate margin of safety” in order to
“protect the public health” from the effects of the criteria pollutants. [42 U.S.C.
§ 7409 (b)(1).] The specific standards for primary NAAQS for each criteria pollutant
can be found in the CFR. [E.g., 40 C.F.R. § 50.4 (primary NAAQS for sulfur
dioxide); 40 C.F.R. § 50.6, 40 C.F.R. § 50.7, 40 C.F.R. § 50.13 13 (primary NAAQS
for particulate matter 10 and particulate matter 2.5); 40 C.F.R. § 50.8 (primary
NAAQS for carbon monoxide); 40 C.F.R. § 50.9, 40 C.F.R. § 50.10, 40 C.F.R. §
50.19 (primary NAAQS for ozone); 40 C.F.R. § 50.11 (primary NAAQs for nitrogen
dioxide); 40 C.F.R. § 50.12 (primary NAAQS for lead).]
ii. Secondary National Ambient Air Quality Standards
Secondary NAAQS are set to “protect the public welfare” from the adverse effects
that the criteria pollutants can cause when they are present in the ambient air. [42
U.S.C. § 7409 (b)(2).] The specific standards for secondary NAAQS for each criteria
pollutant can be found in the CFR, with the exception of carbon monoxide, which
only has a primary NAAQS. [E.g., 40 C.F.R. § 50.5 (secondary NAAQS for sulfur
dioxide); 40 C.F.R. § 50.6, 40 C.F.R. § 50.7, 40 C.F.R. § 50.13 (secondary NAAQS
for particulate matter 10 and particulate matter 2.5); 40 C.F.R. § 50.9, 40 C.F.R. §
50.10, 40 C.F.R. § 50.19 (secondary NAAQS for ozone); 40 C.F.R. § 50.11
(secondary NAAQs for nitrogen dioxide); 40 C.F.R. § 50.12 (secondary NAAQS for
lead).]
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iii. No Economic Consideration
There cannot be any consideration of economic feasibility in the standards the
EPA sets for primary or secondary NAAQS. In Whitman v. American Trucking
Associations, the EPA conducted a review of NAAQS and found that lower levels of
ozone and particulate matter would be beneficial for public health. The EPA then
set stricter NAAQS for ozone and particulate matter, but industry grou ps sued,
arguing that the EPA did not consider the cost industries would have to pay in
order to comply with the new standards. The Court found that requirements for
primary and second NAAQS in Section 109 of the CAA did not allow the EPA to
consider costs when creating NAAQS, as the only requirement imposed on the
EPA is to “protect the public health with an adequate margin of safety .” [(42 U.S.C.
§ 7409; Whitman v. American Trucking Associations, 531 U.S. 457 (2001).]
iv. Reviewing Standards
The EPA is required to review NAAQS every five years, but may review and update
NAAQS more frequently. When reviewing NAAQS, the EPA must review
information prepared by a scientific committee and make decisions about whether
to change NAAQS based on the findings of the committee and other scientific
recommendations that speak to the health of the public and the environment. [42
U.S.C. § 7409(d)(1)-(2).]
c. State Implementation Plans
NAAQS are set by the federal government but are implemented by the states. S tates
must create state implementation plans to show how NAAQS requirements will be
met, maintained, and enforced in the state within three years of the EPA setting new
NAAQS or revising existing NAAQS. The EPA sets minimum requirements for the
implementation plans, and then states are given the freedom to create and submit
their plans for EPA approval. State implementation plans can be more stringent than
the federal standard, but cannot be more lenient than NAAQS. If a state fails to create
a state implementation plan, or if the state’s plan is not approved by the EPA, the EPA
will create a federal implementation plan (FIP) for the state. [42 U.S.C. § 7410(c)(1).]
i. States’ Discretion in Creating State Implementation Plans
As required by Section 110 of the CAA, states must include information on the
enforcement measures for emission limits, as well as the monitoring methods and
procedures that will be used to ensure NAAQS compliance within the state. As
long as a state meets the requirements for state implementation plans, and is in
compliance with EPA standards, states are given the flexibility and discretion to
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create their own regulations to meet NAAQS. [Train v. National Resources Defense
Council, 421 U.S. 60, 79 (1975).]
ii. Designating Attainment and Nonattainment Areas
States are responsible for designating areas within the state as either attainment
areas, nonattainment areas, or unclassifiable, with respect to NAAQS, within one
year after new NAAQS are set or revised. [42 U.S.C. § 7410(d)(1)(A).]
1) Attainment Areas
An attainment area is any area that “meets the national primary or secondary
ambient air quality standard for the pollutant.” [42 U.S.C. § 7410(d)(1)(A)(ii).]
2) Nonattainment Areas
A nonattainment area is any area “that does not meet (or that contributes to
ambient air quality in a nearby area that does not meet) the national primary or
secondary ambient air quality standard for the pollutant.” [ 42 U.S.C.
§ 7410(d)(1)(A)(i).] “
3) Unclassifiable Areas
An unclassifiable area is any area that “cannot be classified on the basis of
available information as meeting or not meeting the national primary or
secondary ambient air quality standard for the pollutant .” [42 U.S.C.
§ 7410(d)(1)(A)(iii).]
iii. Interstate Pollution
The CAA has a “Good Neighbor” provision that requires state implementation plans
to address interstate transport of pollution that can prevent downwind states from
maintaining NAAQS. If a state implementation plan does not adequately address
interstate pollution, the EPA will create a federal implementation plan fo r the
noncompliant state. [42 U.S.C. § 7410(a)(2)(D)(i)(I).]
2. New Source Review
New Source Review is a process triggered when a new facility is constructed , or an
existing facility undergoes a major modification that will cause a significant increase in
emissions. Because New Source Review permits must be issued before construction
begins on a new or existing facility, New Source Review is often referred to as the
“preconstruction air-permitting program.” The policies of New Source Review are in place
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to ensure that air quality in attainment areas and nonattainment areas is not made worse
after the construction of the new source. [42 U.S.C. § 7475.]
a. New Source Review Definitions
The type of New Source Review requirements that will apply depends on whether the
new or modified facility is located in an attain ment or nonattainment area, whether
the new facility or modified facility will be a major source, and whether the
modification to an existing facility will be considered a major modification .
i. Attainment and Nonattainment Areas
Attainment areas are where the air quality is at or better than NAAQS, whereas
nonattainment areas are where the air quality is below NAAQS. [ 42 U.S.C. § 7407.]
ii. Major Source
A stationary source is designated as a major source if it “em its, or has the potential
to emit, 100 tons per year or more of any regulated New Source Review
pollutant,” or more than 250 tons per year of any pollutant . [42 U.S.C. § 7479(1).]
iii. Major Modification
A modification to an existing stationary source is consi dered to be a major
modification if there is a “physical change in [the stationary source] or change in
the method of operation of a major stationary source that would result in a
significant emissions increase of a regulated New Source Review pollutant,”
including NAAQS-regulated criteria pollutants, or a significant increase in the net
emissions of the stationary source that has been modified. [40 CFR 51.165
(a)(1)(v)(A).]
iv. Technology-Based Standards
Technology-based standards apply to facilities under New Source Review.
1) Lowest Achievable Emission Rate
Lowest achievable emission rate (LAER) is the strictest standard applied to
new major sources or modified sources. Unlike other technology -based
standards, cost cannot be considered when establishing the low est achievable
emission rate. There are two options that reflect the lowest achievable
emission rate, and the polluter must conform to the more stringent of the two
options that apply in any given situation. Lowest achievable emission rate can
be defined as either:
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• the “most stringent emission limitation” within a state’s implementation plan for
the regulated source, unless “the owner or operator of the proposed source
demonstrates that such limitations are not achievable;” or [42 U.S. C. §§ 7501
(3)(a).]
• the “most stringent emission limitation” that is “achieved in practice” for the
regulated source. [42 U.S.C. §§ 7501 (3)(b).]
2) Best Available Control Technology
Best available control technology (BACT) is a moderate-level technology-based
standard that considers “energy, environmental, and economic impacts and
other costs” when determining what emission control is achievable for a given
facility and a particular pollutant. Emissions under the best available control
technology standard cannot be greater than any New Source Performance
Standards or hazardous air pollutants (HAPS) emission standards. Best
available control technology is required for new major sources or modified
major sources in attainment areas. [42 U.S.C. § 7479(3).]
3) Reasonably Available Control Technology
Reasonably available control technology (RACT) is the least strict of the
technology-based standards that apply to criteria pollutants. Reasonably
available control technology applies to any existing sources that are in
nonattainment areas and means any “devices, systems, process modifications,
or other apparatus or techniques that are reasonably available ” for maintaining
or attaining NAAQS. [40 C.F.R. § 51.100(o).]
b. Prevention of Significant Deterioration
Under New Source Review, within an attainment area or unclassifiable area, any new
major source, or an existing source that will undergo a major modification, must
comply with Prevention of Significant Deterioration. A facility subject to Prevention of
Significant Deterioration must use best available control technology for every
pollutant regulated under Prevention of Significant Deterioration. Other
preconstruction requirements imposed during New Source Review include completing
an air-quality analysis that addresses the future impact of the proposed project,
completing an additional impact analysis that assesses the impacts to air, water, and
ground pollution that would result from the new source or modification, and holding
public comment periods during the permit process. [42 U.S.C. § 7475(a)(1)-(8).]
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i. Exemption from Prevention of Significant Deterioration
Multiple exemptions may allow a facility to avoid complying with Prevention of
Significant Deterioration, even if the facility is a new major source or will undergo
a major modification. If the new or modified facility will be emitting pollutants in an
area that is already designated a nonattainment area for a given pollutant, the
facility will be exempt from PSD standards. [40 CFR § 51.166(i)(1)-(5).]
c. Nonattainment New Source Review
Within a nonattainment area, any new major source or existing source that will
undergo a major modification must comply with lowest achievable emission rate
standards, offset new emissions by reducing emissions from existing sources, and
involve the public during the permitting period. [42 U.S.C. § 7502 .]
3. New Source Performance Standards
New Source Performance Standards are technology-based emission standards set by the
EPA for non-criteria pollutants emitted from new or modified stationary sources for more
than 70 categories of emission sources that “may reasonably be anticipated to endanger
public health or welfare.” [42 U.S.C. § 7411(b)(1)(A).] New Source Performance Standards
apply to all new stationary sources or modifications to stationary sources, including those
that are not considered to be major. [42 U.S.C. § 7411(a)(2)-(4).]
a. No Review Needed
Unlike New Source Review, New Source Performance Standards are not a review
process. All sources that are newly constructed or modified after the performance
standard is published are considered “new” and New Source Performance Standards
automatically apply. [42 U.S.C. § 7411(a)(2).]
b. Emission Standard for New Sources
New stationary sources that will emit a pollutant subject to New Source Performance
Standards are required to use the best available control technology emission standard.
The best available control technology standard is the best system of emission
reduction that has taken cost and environmental impacts into account and “has been
adequately demonstrated.” [42 U.S.C. § 7411(a)(1).]
c. Exemptions
Even if a facility has undergone a modification, there are exemptions to New Source
Performance Standards, including routine maintenance, increase in production, and
hours of operation.
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i. Routine Maintenance
Modifications to existing sources can be exempt from New Source Performance
Standards if the modifications are considered “maintenance, repair, and
replacement” that is found to be “routine.” [40 C.F.R. § 60.14(e)(1).]
ii. Increase in Production
An increase in production is not viewed as a modification if the facility can
increase its production without making any physical changes to the existing facility.
[40 C.F.R. § 60.14(e)(2).]
iii. Hours of Operation
A facility can increase its hours of operation without triggering New Source
Performance Standards. [40 C.F.R. § 60.14(e)(3).]
4. National Emission Standards for Hazardous Air Pollutants
The CAA designates 187 listed pollutants known to cause cancer or other adverse human
health effects as hazardous air pollutants. All facilities that produce hazardous air
pollutants are subject to National Emission Standards for Hazardous Air Pollutants, which
are set in order to provide an “ample margin of safety to protect the public health.” [ See
42 U.S.C. § 7412(b)(1) (comprehensive list of hazardous air pollutants); 42 U.S.C. §
7412(d)(4).]
a. Hazardous Air Pollutants
As used in the CAA, hazardous air pollutants is a term of art identifying the specific
pollutants listed within 42 U.S.C. § 7412(b)(1). Hazardous air pollutants are not criteria
pollutants and are therefore not subject to NAAQS. The six listed criteria pollutants
are also not considered to be hazardous air pollutants, even though certain criteria
pollutants also have the ability to cause adverse health effects.
b. Major Source
Under NESHAP, any stationary source or group of stationary sources within the same
control or area that emit or “[have] the potential to emit . . . 10 tons per year or more
of any hazardous air pollutant or 25 tons per year or more of any combinat ion of
hazardous air pollutants” are considered major sources. [42 U.S.C. § 7412(a)(1).]
i. Maximum Achievable Control Technology
Major sources that emit hazardous air pollutants must achieve the “ maximum
degree of reduction in emissions of the hazardous air pollutants ,” but may take the
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cost and the environmental impact of the reduction into account when
implementing this standard, known as maximum achievable control technology
(MACT). [42 U.S.C. § 7412(d)(2).]
c. Area Source
An area source is any non-major stationary source of hazardous air pollutants. A non major source of hazardous air pollutants must emi t less than the threshold of a major
source, as outlined in 42 U.S.C. § 7412(a)(1). Because an area source must be a
stationary source, an area source does not include motor or non -road vehicles. [42
U.S.C. § 7412(a)(2).]
i. Generally Available Control Technology
Non-major area sources that produce hazardous air pollutants are subject to
“generally available control technologies or management practices” , known as
GACT, which is a less stringent standard than maximum achievable control
technology. [42 U.S.C. § 7412(d)(5).]
C. Mobile Sources of Pollution
Section II of the CAA regulates mobile sources of pollution. Mobile sources are divided into
three overarching categories: on-road vehicles, nonroad vehicles, and fuel emission
standards.
1. On-Road Vehicles
The CAA considers on-road vehicles to be any motorcycle, passenger car, or commercial
truck or bus, and emission standards for these vehicles are outlined in Section 202 of the
CAA. Due to the cross-boundary nature of vehicles and the ability to travel between
states, the CAA explicitly preempts any state from creating vehicle standards different
from the standards set in the CAA. This regulation stems from a place of practicality for
both citizens who own cars that may travel between states, as well as fo r manufacturers
that could potentially be forced to create vehicles with different emission standards for
each state. [42 U.S. Code § 7543.]
i. California Exception
Although the CAA preempts states from creating individual emission standards for
vehicles, there is an exception that allows a state to have a waiver in order to
create emission standards that are more restrictive than the federal standards. The
waiver will be granted to a state as long as the decision to deviate from the federal
standards is not arbitrary and capricious, among other requirements. This waiver
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allows California to set emission limits that are more stringent than the
requirements in the CAA, and allows any state to also adopt the more stringent
California standards. [42 U.S.C. § 7543(b)(1); 42 U.S.C. § 7507(1)-(2).]
1) Vehicle Purchase Regulations
Even though the CAA allows California to have more restrictive emission
standards, the CAA will preempt local government regulations that place
restrictions on purchasing vehicles as means to control emissions. [Engine
Manufacturers Association v. South Coast Air Quality Management District , 541
U.S. 246 (2004).]
2. Non-Road Vehicles
Non-road vehicles are a diverse group of vehicles that are not used on roads, including
aircraft, trains, diesel boats and ships, heavy equipment (including agricultural vehicles),
and recreational vehicles. Emission standards for aircraft are outlined in Sections 231 234 of the CAA and regulations for all other non -road vehicles can be found in the CFR.
[E.g., 40 C.F.R. §§ 1039, 1048, 1060, 1065, 1068 (regulations for heavy equipment
emissions); 40 C.F.R. §§ 1033, 1033.501, 1033.601, 1065, 1068 (regulations for
locomotive emissions); 40 C.F.R. §§ 80, 89, 91, 94, 1042, 1043, 1045, 1060, 1065, 1068
(regulations for marine emissions); 40 C.F.R. §§ 86(f), 1051, 1060, 1065, 1068
(regulations for recreational vehicle emissions).]
3. Fuel Standards
Although fuel itself cannot be considered a stationary or a mobile source of emissions,
mobile emissions are caused by fuel, and therefore the EPA regulates the composition of
fuel as a mobile-source regulation. [42 U.S.C. § 7545.]
a. No Lead in Gasoline
The 1990 amendments to the CAA prohibited the sale or use of gasoline that
contained “lead or lead additives,” after 1995. [42 U.S.C. § 7545(n).]
D. Acid Rain Program
The Acid Rain Program (ARP) was created by Section IV of the CAA in the 1990 CAA
Amendments. The main goal of the Acid Rain Program is to reduce emissions of the pollutants
that are the leading cause of acid rain: sulfur dioxid e and nitrogen oxides. [42 U.S. Code
§ 7651(b).]
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1. Implementation
The Acid Rain Program was implemented in two phases. Phase I for sulfur dioxide and
nitrogen oxides took place between 1995 and 1999. During Phase I, regulations were
implemented on 263 of the largest sources of sulfur dioxide and Group 1 Boilers of
nitrogen oxide. Phase II for both pollutants began in 2000. Phase II continued the
progress established by Phase I and imposed further emission restrictions on sulfur
dioxide and nitrogen oxides through the implementation of a cap-and-trade program. [42
U.S.C. §§ 7651c, 7651d, 7651f.]
2. Cap and Trade
The Acid Rain Program introduced a market-based cap-and-trade program to U.S. air
pollution regulation. Instead of regulating individual sources of emissions, the cap -andtrade approach regulates by controlling aggregate emissions of a pollutant. The cap-andtrade system allocates annual allowances to the operators of affected units that emit
sulfur dioxide. The annual allowance permits the emission of one ton of sulfur dioxide. In
order to stay within the one-ton allowance, the facility can either implement new
technology to reduce its overall emissions, or purchase additional allowances from a
facility that has not emitted in excess of its allowance. [42 U.S.C. §§ 7651b(a)(1),
7651a(3).]
E. Preventing Ozone Depletion
Section VI of the CAA was added in the 1990 CAA Amendments with the goal of protecting
the stratospheric ozone layer of the atmosphere. The provisions included in the amendment
addressed some of the responsibilities that the U.S. had in the Montreal Protocol on
Substances that Deplete the Ozone Layer (Montreal Protocol), an international treaty created
to foster international cooperation in protecting the ozone layer.
1. Montreal Protocol
The Montreal Protocol is an international treaty signed by 197 parties, including the U.S.,
that seeks to protect the ozone layer by requiring countries to phase out substances that
cause ozone depletion, including chlorofluorocarbons, hydrochlorofluorocarbons, and
hydrofluorocarbons. [Montreal Protocol on Substances that Deplete the Ozone Layer,
Sept. 16, 1987 26 I.L.M 1541.]
2. Regulating Ozone-Depleting Substances
Within Section 602 of the CAA, ozone-depleting substances were categorized as either
Class I or Class II substances, with phase-out dates provided for each class of substances.
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Substances that were listed were a variety of chlorofluorocarbons and
hydrochlorofluorocarbons, two chemicals that were found to have the greatest effect on
depleting the ozone layer.
a. Class I Phase-Out
After January 1, 2000, it became illegal for any entity to produce any amount o f a
listed Class I substance. [42 U.S.C. § 7671c(b).]
b. Class II Phase-Out
Beginning in January 2015, it became illegal for any entity to produce any Class II
substance at “an annual quantity greater than the quantity of such substance
produced by such [entity] during the baseline year.” [42 U.S.C. § 7671d(b)(1)-(2).]
After January 1, 2030, the phase-out of Class II substances will be complete, and it
will be illegal for any entity to produce any amount of a listed Class II substance.
F. Global Climate Change
Global climate change, or anthropogenic climate change, is the broad term given to the
increase in global temperature caused by the human emission of carbon dioxide and
greenhouse gases. Attempts to regulate greenhouse gases have been made internationally
through multiple treaties, and domestically through case law and national policies, each with
varying levels of success.
1. International Treaties
The Kyoto Protocol and the Paris Agreement are two of the most significant international
treaties on the regulation of greenhouse gas emissions and the need to mitigate global
climate change. Both of these treaties are extensions of the United Nations Framework
Convention on Climate Change (UNFCCC).
a. Kyoto Protocol
The Kyoto Protocol was signed in 1997 and made effective in 2005 after 55 parties
had ratified the Protocol. As of 2019, 192 nations were parties to the Kyoto Protocol.
The U.S. has signed the Protocol but has never ratified it. The Kyoto Protocol was
created in order to have nations agree to reduce their greenhouse gases in an attempt
to reduce the anthropogenic, or human-caused, impact on global warming. The treaty
is based on the international law principle of “common but differentiated
responsibilities,” which means that all parties to the treaty have a common goal and
responsibility to reduce greenhouse gases, but there are different, and more intense,
requirements placed on developed nations that are contributing the most to the
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production of greenhouse gases to reduce their production of greenhouse gases.
[Kyoto Protocol to the United Nations Framework Convention on Climate Change,
Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).]
b. Paris Agreement
The Paris Agreement is another treaty created within the United Nations Framework
Convention on Climate Change that seeks to address current issues of climate change
and greenhouse gas emissions. Within the agreement, Article 2 (1) (a) specifically
outlines global temperature goals that should be met in order to minimize the negative
impacts of global warming, stating that the “increase in the global average temperature
[should be held to] well below 2 °C above pre-industrial levels” and efforts to “limit
the temperature increase to 1.5 °C above pre-industrial levels” should be pursued.
[Conference of the Parties, Adoption of the Paris Agreement, Dec. 12, 2015 U.N. Doc.
FCCC/CP/2015/L.9/Rev/1 (2015).] In 2017, the U.S. announced its intent to
withdraw from the Paris Agreement, which will become effective in November 2020.
2. Domestic Regulation of Greenhouse Gases
In the U.S., there has been an increasing effort to regulate greenhouse gases in an
attempt to combat climate change. Massachusetts v. Environmental Protection Agency is
considered a seminal case due to the Court’s holding on greenhouse-gas regulation and
climate change. In 2014, the Clean Power Plan was the first national plan that would set
carbon limits and address climate change on a national scale. [ Massachusetts v.
Environmental Protection Agency, 549 U.S. 497 (2007).]
a. Massachusetts v. Environmental Protection Agency
The CAA has a provision that requires the EPA commissioner to set emission
standards for any pollutant that "in his judgment, cause or contribute to air pollution
which may reasonably be anticipated to endanger public health or welfare ." [42 U.S.C.
§ 7408(a)(1)(A).] The EPA maintained that it did not have the authority under the C AA
to regulate greenhouse gases or carbon dioxide with respect to climate change, and
even if it did have the authority, it would not exercise its discretion in setting emission
standards for greenhouse gases. A group of states, cities, and environmental advocacy
organizations sued the EPA, claiming that the language of the CAA obligated the EPA
commissioner to create emission standards for greenhouse gases. The Court agreed
with the plaintiffs and held that “greenhouse gases fit well within the Clean Air Act’s
capacious definition of ‘air pollutant,’” and that the “EPA has the statutory authority to
regulate the emission of such gases from new motor vehicles.” [ Massachusetts v.
Environmental Protection Agency, 549 U.S. 497 (2007).]
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VII. Water Pollution
The importance of clean water cannot be overstated: over 70 percent of the Earth is covered by
water, the United Nations considers access to clean water and sanitation a basic human right, and
most importantly, humans rely on water for the subsistence of life. Water quality is regulated in
the U.S. in order to maintain a healthy environment, ensure that water is safe for human
consumption, and preserve waters and the surrounding environment for aesthetic pleasure and
recreational use.
A. Clean Water Act
The CWA is the shorthand name given to the Federal Water Pollution Control Act
Amendments of 1972. The Federal Water Pollution Control Act of 1948 was the first federal
law that addressed water pollution, but substantial amendments to the act were introduced in
1972, and these amendments collectively became known as the CWA. Subsequent
amendments to the CWA include the Clean Water Act of 1977 and the Water Quality Act of
1987. Broadly, the goal of the CWA is to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” [33 U.S.C. § 1251(a).] In order to achieve this
goal, the CWA has various programs and policies that regulate the discharge of pollutants,
provide permits for polluters, and set standards for overall water quali ty.
1. Waters of the United States
The scope of the CWA is limited by the location and type of water that can be regulated
under the act. The CWA regulates pollution discharges into navigable waters, which are
broadly defined as “the waters of the United States” (sometimes referred to as WOTUS)
and the territorial sea of the U.S. [33 U.S.C. § 1362(7).] Although “waters of the United
States” is used to define the term “navigable waters,” a body of water does not have to be
navigable in the literal sense of the word in order to be considered a water of the United
States.
a. Army Corps of Engineers Definition
In addition to the EPA, the Army Corps of Engineers (the corps) has the authority to
enforce the pollution-discharge permitting requirements of the CWA. In th e CFR, the
corps sets forward a large and comprehensive definition of what it defines as waters
of the United States, including “waters which are subject to the ebb and flow of the
tide,” “interstate waters, including interstate wetlands,” the territorial seas, as well as
water adjacent to what the corps defines as “waters of the United States.” [33 CFR
§§ 328.3(a)(1)-(7).]
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b. Supreme Court Definition
Multiple cases regarding the issue of what can be considered a water of the United
States have come before the United States Supreme Court and are important enough
to be referenced only by mononym, including SWANCC (Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers , 531 U.S. 159 (2001)),
colloquially pronounced as “swank,” and Rapanos (Rapanos v. United States, 547 U.S.
715 (2006)).
i. Riverside Bayview Homes
The definition of navigable water within the CWA, as well as the definition used by
the corps, includes waters adjacent to navigable waters, which includes wetlands.
In Riverside Bayview Homes, a property-development company was discharging fill
material into a wetland adjacent to a lake. The company did not get a permit to
dump the fill material into the wetland, because it believed that the wetland was
not a protected type of water that would require a discharge permit. The corps
sued to stop the developer from dumping the fill material into the wetland
because, under the corps’s definition, the wetland was adjacent to a navigable
water, and was therefore considered a water of the United States itself. The
United State Supreme Court held that the broad definition of navigable water was
permitted and that adjacent wetlands can be considered a navigable water under
the CWA. [United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).]
ii. SWANCC
In SWANCC, the Solid Waste Agency of Northern Cook County wanted to fill
isolated ponds that were created by large mining trenches. The corps did not issue
the required permit to the agency to fill the ponds because the corps deemed that
the ponds were navigable waters. The designation of navigable water was under
the control of the corps through the authority of the Migratory Bird Rule, as
migratory birds were found to be using the ponds. The United States Supreme
Court held that the ponds were not navigable waters, and not within the corps’s
jurisdiction under the CWA, because the waters were isolated and there was no
significant nexus from the ponds to other navigable waters, unlike the significant
nexus that the Court found between wetlands and navigable waters in Riverside
Bayview Homes. [Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001).]
iii. Rapanos
In Rapanos, a developer filled 54 acres of wetlands without getting a permit from
the corps. Rapanos believed that he did not need a permit because his land was
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miles away from any navigable water, but the corps maintained that previous case
law affirmed that even if wetlands were only adjacent to navigable waters, the
wetlands would be under the jurisdiction of the corps. The United States Supreme
Court did not resolve the issue with a majority opinion and was split 4 -1-4.
[Rapanos v. United States, 547 U.S. 715 (2006).]
1) Plurality Opinion
Justice Scalia’s plurality opinion held that there should be a stricter
interpretation of the phrase “waters of the United States,” which should only
include “relatively permanent, standing or continuously flowing bodies of
water.” Wetlands and adjacent waters can only be considered to be “waters of
the United States” when there is a “continuous surface connection” to existing
“waters of the United States,” as defined in the opinion. [Rapanos v. United
States, 547 U.S. 715 (2006).]
2) Concurrence
Justice Kennedy’s concurrence held that any water with a significant nexus to
an existing navigable water is under the jurisdiction of the CWA. A significant
nexus can be established if the wetlands in question could “significantly affect
the chemical, physical, and biological integrity ” of a navigable water, with this
determination made on a case-by-case basis. [Rapanos v. United States, 547
U.S. 715 (2006).]
3) Dissent
The dissenting opinion held that the issue was settled by Riverside Bayview
Homes and that any water adjacent to a navigable water is also within the
jurisdiction of the CWA.
c. 2015 Clean Water Rule and Subsequent Changes
In 2015, the Clean Water Rule, also known as the Waters of the United States Rule,
was published by the EPA and the corps, and defined what can be considered adjacent
waters and tributaries, in an attempt to clarify the conflicting case law of Riverside
Bayview Homes, SWANCC, and Rapanos and provide a more consistent application of
the CWA. In 2018 the Clean Water Rule was suspended by the EPA at the direction
of President Trump.
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2. National Pollutant Discharge Elimination System
Under the CWA, sources of pollution are divided into two categories: point source and
non-point source. Sources of point-source pollution are regulated through the National
Pollutant Discharge Elimination System. Section 402 of the Clean Water Act establishes
the National Pollutant Discharge Elimination System (NPDES) permit program. The
NPDES permit program issues permits that adapt the general goa ls of the CWA for the
specific requirements of the situation where the permit will apply, including setting the
allowable level of pollutants that can be discharged.
a. Discharge of a Pollutant
Any “discharge of a pollutant” into a “navigable water” is unlaw ful unless the EPA
issues an NPDES permit for the discharge. [33 U.S.C. § 1311(a).] A “discharge of a
pollutant” is defined as an “addition of any pollutant to navigable waters from any
point source.” [33 U.S.C. § 1362(12)(a).] This broad statement triggers the
requirement for an NPDES permit, and the elements can be further defined to clarify
which situations require an NPDES permit.
i. Addition
The term “addition” is not defined within the CWA. The concept of unitary wa ters
can also complicate the ability to determine if an addition has occurred.
1) Unitary Waters
In South Florida Water Management District. v. Miccosukee Tribe of Indians , the
United States Supreme Court held that under the interpretation of addition
from the CWA, the transfer of water containing pollutants from one area of
water to another (in a connected body of water) can be considered an addition
from a point source. [South Florida Water Management District v. Miccosukee
Tribe, 541 U.S. 95 (2004).] A similar view of unitary waters was established in
Los Angeles County Flood Control District v. NRDC, Inc., which found that when
polluted water travels from one section of a navigable water through a storm
drain system, and then is released from the drain in a different area of the
same navigable water, it is not considered an addition that would require an
NDPES permit. [Los Angeles County Flood Control District v. Natural Resources
Defense Council, Inc., 568 U.S. 78 (2013).]
ii. Pollutant
Pollutant is defined as “dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological materials,
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radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste discharged into water,” [33 U.S.C.
§ 1362(12)(a).] but does not include sewage released from vessels on water, or
materials injected into wells during the production of oil or gas.
iii. Navigable Waters
Navigable water broadly refers to “the waters of the United States” and the
territorial sea of the U.S. [33 U.S.C. § 1362(7).]
iv. Point Source
A point source generally includes any “discernible, confined and discrete
conveyance” of a discharge of a pollutant directly from pipes, tunnels, channels,
animal feeding operations, or vessels. [33 U.S.C. § 1362(14).] Factors that are
important to evaluate in determining whether something is a point source include
whether the conveyance is manmade or naturally occurring, if ditches that carry
pollutants were created by erosion or if the ditches were created by human
interference with the land, if the downward flow is naturally caused by gravity or
created by human interference, and if the waste is collected by a facility before it
settles into a conveyance. [See Sierra Club v. Abston Construction, 620 F.2d 41 (5th
Cir. 1980), Concerned Residents for Envi. v. Southview Farm, 34 F.3d 114 (2d Cir.
1994).]
Example:
A mining company had multiple sediment basins built to collect runoff from spoil
tips, which are large piles of waste material generated during the mining process.
The basins that collected the spoil runoff overflowed during heavy rain, and the
combination of rainwater and spoil flowed into a nearby river through natural
channels created by rain and erosion. An environmental group sued the mining
company for the unlawful discharge into the river. The mining company claimed
that it was not responsible for the discharge because the runoff was a naturally
occurring side-effect of the rain. Even though the mining company did not create
the channels that carried the polluted runoff into the river, the company was
responsible for creating a point-source discharge because it stored the spoil that
eventually made its way into the river. [Sierra Club v. Abston Construction, 620 F.2d
41 (5th Cir. 1980).]
b. Effluent Guidelines for NPDES Permits
The EPA has effluent guidelines set for different categories of industries, and these
custom standards are applied when the NPDES permit is issued. The authority of the
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EPA to set uniform effluent standards for broad categories of industry was upheld by
the United States Supreme Court in E. I. du Pont de Nemours & Co. v. Train, 430 U.S.
112 (1977).
i. Technology-Based Standards
If an NPDES permit is required, the standards enforced f or each permit depend on
the type of pollutant, including conventional pollutants, toxic pollutants, and
nonconventional pollutants. The standards enforced also vary depending on
whether the source of the discharge is an existing or new source.
ii. Conventional Pollutants
The EPA designates Biochemical Oxygen Demand (BOD), Total Suspended Solids
(TSS), pH, fecal coliform, and oil and grease as conventional pollutants. [40 C.F.R. §
401.16.]
1) Existing Point Source
An existing point source discharging a conventional pollutant must conform to
“Best Conventional Pollutant Control Technology” (BCT). [33 U.S.C.
§ 1311(b)(2)(e).] BCT standards must “include consideration of the
reasonableness of the relationship between the costs of attaining a reduction
in effluents and the effluent reduction benefits derived .” [33 U.S.C.
§ 1314(b)(4)(B).]
2) New Point Source
A new point source discharging a conventional pollutant is required to use
“Best Available Demonstrated Control Technology” (BADT). [33 U.S.C.
§ 1316(b)(1)(a).] The BADT standard includes a “consideration [of] the cost of
achieving such effluent reduction, and any non-water quality, environmental
impact and energy requirements.” [33 U.S.C. § 1316(b)(1(B).]
iii. Toxic Pollutants
The CWA designates 65 pollutants, listed within the CFR, as “toxic pollutants.” [40
C.F.R. 401.15.] The act further refines the 65 toxic pollutants, and specifically
designates 126 substances derived from the toxic pollutants that are listed as
“priority pollutants.” [40 C.F.R. 423, Appendix A.]
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1) Existing Point Source
An existing point source discharging toxic pollutants must apply the Best
Available Technology Economically Achievable (BAT), which is the most
stringent control that is applied under the CWA. The standard of what is
considered BAT is determined by currently operating facilities that are
performing at an optimal rate of minimizing discharges. [33 U.S.C.
§ 1311(b)(2)(A).]
2) New Point Source
A new point source that discharges toxic pollutants must use Best Available
Demonstrated Control Technology. [33 U.S.C. § 1316(b)(1)(a).]
iv. Nonconventional Pollutants
Any pollutant that is not specifically listed as a conventional pollutant or a toxic
pollutant is considered a nonconventional pollutant. The standards that apply for
nonconventional pollutants are the same as toxic pollutants —existing point sources
are required to employ Best Available Technology Economically Achievable and
new sources must use Best Available Demonstrated Control Technology.
v. Variances
The EPA can provide a variance, known as a Fundamentally Different Factors
variance, that “modifies the requirements of national effluent limitation guidelines ”
for individual plants, if the facility is “fundamentally different with respect to the
factors (other than cost).” [33 U.S.C. § 1311(n).]
c. Publicly Owned Treatment Works
Publicly owned treatment works (POTWs), or municipal sewage facilities, are subject
to their own set of standards that are less stringent than the standards set for the
three classes of pollutants (conventional, nonconventional, and toxic). Publicly owned
treatment works are considered point sources under the CWA and are required to
meet secondary treatment standards.
i. Secondary Treatment Standards
Publicly owned treatment works are subject to secondary treatment standards,
which are technology-based requirements that set the minimum standards for
treatment of waste produced by wastewater treatment plants. The goal of
secondary treatment standards is to remove total suspended solids and pH. [33
U.S.C. § 1314(d)(4).]
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ii. Pretreatment Standards
Any facility that adds pollutants, through indirect discharges, to a publicly owned
treatment work is required to meet pretreatment standards in order to ensure that
additional pollutants are interfering with the ability of the publicly owned
treatment work to meet its secondary treatment standards. [33 U.S.C. 1317(b).]
3. Non-point Pollution
There is no set definition of non-point sources of pollution in the CWA; however, nonpoint sources are considered to be all sources of pollution that are not from point
sources. The most prevalent forms of non-point pollution are from agricultural runoff,
runoff caused by development of natural lands, and residential pollution from lawn care
and oil from vehicles.
4. Permits to Discharge Dredge and Fill
Section 404 of the CWA creates the permitting program for discharges of dredged and
fill materials in the waters of the U.S., including wetlands. Dredged material is defined as
“material that is excavated or dredged from waters of th e United States.” [33 CFR
323.2(c).] Fill material is defined as “material placed in waters of the United States where
the material has the effect of: (i) replacing any portion of a water of the United States
with dry land; or (ii) changing the bottom elev ation of any portion of a water of the
United States.” [33 CFR 323.2(e).] This type of permit is often granted during the
construction of dams, highways, or mines. A discharge permit is only issued if the
applicant can show that there have been actions taken to lessen the impact on the
wetlands or water. A permit will not be issued if there is any “practicable alternative” that
would be less damaging or if the quality of the waters or wetlands where the discharge
would occur would be significantly degraded. [33 U.S.C. § 1344.]
5. Water-Quality Standards
States are responsible for setting water-quality standards for every body of water in the
state. Water-quality standards must outline designated uses, water-quality criteria to
protect the designated uses, and anti-degradation policies.
a. Designated Uses
States must assign designated uses to each body of water within the state in order to
provide for the “protection and propagation of fish, shellfish, and wildlife and . . .
recreation in and on the water.” [33 U.S.C. § 1251(a)(2).] Classes of designated uses
include “public water supplies, propagation of fish and wildlife, recreational purposes , .
. . agricultural, industrial, and other purposes,” including navigation. [33 U.S.C.
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§ 1313(c)(2)(A).] Recreational uses can be further divided into primary -contact
recreation uses (where direct contact with water, and the possibility of ingesting
water, occurs, such as swimming) or secondary-contact recreation (where direct
contact with water is less likely, such as waters designated only for boating).
b. Water-Quality Criteria
Water-quality criteria are set to “protect the public health or welfare, enhance the
quality of water and serve the purposes of [the CWA].” [40 C.F.R. 131.3(b) .] Once the
categories of designated uses have been established, the states must adopt water quality criteria that “consist of the designated uses of the navigable waters involved
and the water quality criteria for such waters based upon such uses.” [33 U. S.C.
§ 1313(c)(2)(A).] This means that the water-quality criteria standards that states
implement for each body of water will vary depending on the designated use of the
water, with stricter criteria applied to water used for human consumption or
recreation.
i. Numeric Criteria
Numeric criteria for water quality are expressed in a quantitative manner. This type
of criteria sets specific, and measurable, quality standards that states can measure
and monitor.
Example:
Benzene must not exceed 3 µg/l (micrograms per liter) in drinking water.
ii. Narrative Criteria
When a controlled pollutant cannot be measured quantitatively, narrative criteria
are used to express the water quality criteria in a qualitative manner.
Example:
Surface water must be free from radioactive material.
iii. EPA Review
The EPA reviews states’ water-quality criteria and ensures that states have used
“sound scientific rationale” when creating the criteria, that the criteria sufficiently
protects the designated use of the water, and that the cri teria is set to cater to the
most sensitive use for multi-use designated waters. [40 C.F.R. 131.11(a)(1).]
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c. Total Maximum Daily Load
A Total Maximum Daily Load (TMDL) is the maximum amount of a certain pollutant
that can be present in water before violating the water-quality standard. A TMDL is
measured collectively and includes any deposits of pollutants from point sources, non point sources and naturally occurring elements, which provides a comprehensive
overview of the water quality. States must create TMDLs for any waters within the
state that would not be able to meet the required water -quality criteria under the
effluent (NDPES permit) limitations. States should “establish a priority ranking” for the
waters that need TMDLs, based on the current severity of the pollution as well as the
designated uses for the waters. [33 U.S.C. 1313 (d)(1).]
i. EPA Review
States submit their TMDL to the EPA for approval. If the EPA does not approve
the states’ TMDL and water designations, the EPA will create TMDLs for the state.
d. Anti-Degradation
The anti-degradation policy of the water-quality criteria is designed to maintain the
current water-quality level and protect any “existing uses” of the body of water. [40
C.F.R. 131.11(a)(2).] This requirement prevents states from lowering any existing
water-quality criteria or lowering the tier of the designated use of the body of water.
States can remove a designated use from a body of water if that use is not an existing
use and the state conducts a “use attainability analysis.” [40 C.F.R. 131.10(g).]
B. Safe Drinking Water Act (SDWA)
The SDWA was passed in 1974 to regulate the quality of the drinking water in the U.S.,
regardless of its source. The SDWA regulates drinking water once it has been processed for
human consumption, but also regulates the sources of drinking water, including lakes, rivers,
and wells.
a. National Drinking Water Regulations
Within the SDWA, there are two levels of drinking water regulations: primary and
secondary. Each level of water regulation has different standards and different
requirements and levels of enforceability.
i. National Primary Drinking Water Regulations
The SDWA created National Primary Drinking Water Regulations (NPDWRs) which
set mandatory maximum contaminant levels for contaminants that can cause
adverse health effects, are likely to be in the public water supply at a frequency
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allowable catch (TAC) is the limit on how many fish of a certain species can be
caught within a year, and a country has the responsibility to conduct TAC studies
every year. The maximum sustainable yield is the quantity of fish that can be
removed from a population within a year without impacting the renewability or
reproduction of the fish stock, and the creation of the TAC is based in part on the
determination of the maximum sustainable yield. [ Convention on the Law of the Sea,
Dec. 10, 1982, 1833 U.N.T.S. 397.]
1) Distributing the Right to the Total Allowable Catch
Article 62 of UNCLOS allows a country that does not harvest the full TAC for
a given species to provide a license for another country to fish the remaining
portion of the TAC. But, the total catch from the coastal country and any
licensees cannot exceed the TAC. If a country finds a non-licensee fishing
within the country’s exclusive economic zone, it is permitted to use force
against the illegal fishing vessel. [Convention on the Law of the Sea, Dec. 10,
1982, 1833 U.N.T.S. 397.]
X. Waste Management, Disposal, and Clean-Up
The term “waste” can refer to a wide variety of undesirable and discarded products, materials, or
chemicals that must be properly regulated and disposed of in order to protect human health and
the environment. In the U.S., waste regulation is broadly managed by two sources of law: RCRA,
which regulates the production and disposal of solid and hazardous waste, and CERCLA, which
regulates the cleanup process when hazardous wastes have been improperly disposed of and
have caused damage.
A. Difference Between RCRA and CERCLA
Although both acts regulate waste, the difference between RCRA and CERCLA is the time in
the waste-management process at which each act is applied. RCRA is a prospective regulatory
act that manages waste before and during waste production and subsequent treatment,
whereas CERCLA is a retroactive act designed to correct previous mishandling of hazardous
waste.
B. Resource Conservation and Recovery Act (RCRA)
RCRA (colloquially pronounced as “rick-rah”) was enacted in 1976 as a comprehensive
amendment to the Solid Waste Disposal Act of 1965. The objectives of RCRA are broadly to
“promote the protection of [human] health and the environment” by regulating waste disposal
and encouraging a nationwide reduction in the overall production of waste. [42 U.S.C.
§ 6902(a).] RCRA regulations can be simplified by identifying the key triggers, or the “what,
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who, and how,” of waste management, including defining what can be considered waste,
defining who is a hazardous waste generator, and defining how waste is disposed of and
treated.
1. Defining Waste
In order to determine what regulations apply under RCRA, the type of waste in question
must be classified. The two major categories of waste regulated under RCRA are solid
waste and hazardous waste.
a. Solid Waste
RCRA regulations related to solid waste are located in Subtitle B of the act. Solid
waste is defined as “any garbage, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facili ty and other discarded material.”
The term “solid waste” does not refer only to wastes that are physically solid, as solid
waste also includes “liquid, semisolid, or contained gaseous material” that results from
“industrial, commercial, mining, and agricultural operations, ” and “community
activities.” [42 U.S. Code § 6903(27).]
i. Solid Waste Exceptions
Solid waste under RCRA does not include “solid or dissolved material in domestic
sewage, or solid or dissolved materials in irrigation return flows or industrial
discharges which are point sources subject to” the National Pollutant Discharge
Elimination System under the Clean Water Act. [42 U.S. Code § 6903(27).]
ii. Discarded Material
The definition of solid waste includes anything considered “ other discarded
material.” When a dispute over the interpretation of the phrase “discarded
material” arose, the D.C. Circuit Court held that “materials . . . are ‘discarded’ by
virtue of being disposed of, abandoned, or thrown away.” By refining the definition
of the term “discarded material,” the court limited the reach of RCRA and the
EPA’s ability to regulate “‘spent’ materials that are recycled and reused in an
ongoing manufacturing or industrial process.” [American Mining Congress v. EPA,
824 F.2d 1177 (1987).]
b. Hazardous Waste
RCRA regulations related to hazardous waste are located in Subtitle C of the act,
which outlines a comprehensive cradle-to-grave management plan. Hazardous waste
is defined as “a solid waste, or combination of solid wastes, which because o f its
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quantity, concentration, or physical, chemical, or infectious characteristics ” may cause,
or increase the likelihood of developing, serious illnesses or create a threat to human
health or the environment if it is not properly disposed of or managed. [42 U.S. Code
§ 6903(5).] Because the definition of hazardous waste dictates that the waste must
first be considered a solid waste, hazardous wastes are considered to be a subset of
solid wastes. However, under RCRA, hazardous wastes are managed separately and
held to different disposal and treatment standards than general solid wastes.
i. Listed Hazardous Waste
A listed hazardous waste is a solid waste that has been listed as hazardous in the
Code of Federal Regulations (CFR). The hazardous wastes are put o n lists, referred
to as F-List, K-List, P-List, and U-List, depending on the source and type of the
waste.
1) F-List
The F-List of hazardous wastes contains manufacturing and industrial wastes,
including spent solvent wastes, and dioxin-bearing wastes. [40 C.F.R.
§ 261.31.]
2) K-List
The K-List of hazardous wastes contains industry wastes that are source specific, including wood-preservation chemicals, pesticide-manufacturing
chemicals, and explosives manufacturing. [40 C.F.R. § 261.32.]
3) P-List and U-List
The P-List and U-List of hazardous wastes both contain chemicals that are
unused commercial chemical products. [40 C.F.R. § 261.33.]
ii. Characteristic Hazardous Waste
A characteristic hazardous waste is a waste that, due to its chemical characteristics,
is deemed hazardous. The four characteristics used to assess the hazardous nature
of the waste are ignitability, corrosivity, reactivity, and toxicity.
1) Ignitability
Different scientific tests can be run on a waste to determine its level of
ignitability. General benchmarks used to classify a waste as ignitable include
determining whether its flashpoint is below 140 degrees Fahrenheit, or
whether ignitability increases when the waste is compressed. The s cientific
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determinations for ignitable wastes under RCRA are defined in the CFR. [40
C.F.R. § 261.21.]
2) Corrosivity
The pH level of the waste and its capability to corrode steel are used to
determine whether a waste is corrosive, and therefore a characteri stic
hazardous waste. PH levels of wastes must be less than or equal to 2, or equal
to or greater than 12.5, in order to be considered corrosive. [40 C.F.R.
§ 261.22.]
3) Reactivity
The reactivity of a waste, or how it will change and react if introduced to
water or other substances, can make an otherwise nonhazardous waste a
characteristic hazardous waste. [40 C.F.R. § 261.23.]
4) Toxicity
The toxicity of a waste is determined by whether the waste is harmful to
humans if it is ingested or harmful if the waste is absorbed by the ground and
has the ability to contaminate groundwater. Scientifically, the Toxicity
Characteristic Leaching Procedure is used to evaluate the toxicity of the
waste. [40 C.F.R. § 261.24.]
iii. Mixture Rule for Listed and Characteristic Hazardous Wastes
If a nonhazardous material is mixed with a listed hazardous waste, the waste will
always be considered a hazardous waste, no matter how much of the
nonhazardous material is used in an attempt to dilute the waste. However, a
nonhazardous material can be mixed with a characteristic hazardous waste to the
point where the hazardous waste no longer has the characteristics that made it a
hazardous waste. The nonhazardous material mixed with characteristic hazardous
waste cannot itself be classified as a solid waste, or the end result will still be
considered a hazardous waste. [40 C.F.R. § 261.3(a)(2)(iv).]
iv. Mixed Radiological and Hazardous Waste
If a hazardous waste also contains any radioactive material, it is deemed a mixed
waste. Although the hazardous element of the waste is still regulated under RCRA,
the radioactive part of the waste is regulated by the Atomic Energy Act and the
Nuclear Regulatory Commission or Department of Energy, depending on if the
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waste was created by commercial facilities or facilities controlled by the
Department of Energy. [40 C.F.R. §§ 266.210–266.360.]
2. Recycling Hazardous Waste
Hazardous waste can be recycled during the production process, but the purpose and
outcome of the recycling used by a facility must be legitimate, rather than sham recycling,
which can be used to avoid complying with RCRA regulations.
a. Legitimate Recycling
RCRA mandates that a legitimate recycling operation “must involve a hazardous
secondary material that provides a useful contribution to the recycling process or to a
product or intermediate of the recycling process.” [40 C.F.R. § 260.43.] This means
that the recycling process must actually produce a valuable and legitimate product
that serves a purpose beyond simply avoiding RCRA regulations.
3. Cradle-to-Grave Management of Hazardous Waste
An additional step that applies only to hazardous waste is determin ing who is considered
a hazardous-waste generator. This extra step in the process of managing hazardous waste
is in line with the cradle-to-grave management goal that is in place specifically for
hazardous waste, rather than nonhazardous solid waste.
a. Hazardous-Waste Generators
A hazardous-waste generator is any person (broadly defined to include any individual,
corporation, state, or agency of the federal government) that produces or creates a
hazardous waste or “first causes a hazardous waste to become subject to regulation,”
such as through the importation of a hazardous waste. [40 C.F.R. § 260.10.]
Hazardous-waste generators are divided into three categories depending on the
amount of hazardous waste produced by the generator.
i. Very-Small-Quantity Generators
A very-small-quantity generator is a generator that produces less than or equal to
220 pounds of hazardous waste and less than or equal to 2.2 pounds of acute
hazardous wastes (specific hazardous materials listed in the CFR) within a single
calendar month. Very-small-quantity generators cannot accumulate over 2,200
pounds of hazardous waste at any time, are required to identify all hazardous
wastes that are produced, and must properly deliver the hazardous waste
produced to another facility or person that is capable and allowed to receive and
manage the hazardous waste. [40 C.F.R. § 260.10, § 262.14.]
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ii. Small-Quantity Generators
A small-quantity generator is a generator that produces between 200 to 2,200
pounds of hazardous waste and less than or equal to 2.2 pounds of acute
hazardous wastes (specific hazardous materials listed in the CFR) in one calendar
month. Small-quantity generators are allowed to keep generated hazardous waste
onsite for up to 180 days without requiring a permit. If a facilit y is designated as a
small-quantity generator, RCRA regulations mandate that an emergency
coordinator must be present and available to respond to emergencies relating to
the hazardous waste. [40 C.F.R. § 260.10, § 262.16.]
iii. Large-Quantity Generators
A large-quantity generator is a generator that produces over 2,200 pounds of
hazardous waste and less than or equal to 2.2 pounds of acute hazardous wastes
(specific hazardous materials listed in the CFR) in one calendar month. Large quantity generators cannot keep generated hazardous waste onsite longer than 90
days, but there is no limit to how much hazardous waste can be kept onsite. The
specifications for storage requirements and emergency preparedness are more
stringent for large-quantity generators due to the risk and scale of a disaster that
could occur at a facility categorized as a large-quantity generator. [40 C.F.R.
§ 260.10, § 262.17]
b. Hazardous-Waste Transporters
Hazardous-waste transporters move hazardous waste from sites where the waste was
generated to a final destination, where the waste is managed as part of the final stage
in the “cradle-to-grave” process. Under RCRA, a transporter is defined as “a person
engaged in the offsite transportation of hazardous waste by air, rail, highway, or
water.” [40 C.F.R. § 260.10.] Hazardous waste transporters must comply with special
standards created by the Department of Transportation, in addition to all applicable
RCRA requirements.
i. Regulations
Hazardous waste transporters are required to comply with specifi c regulations that
are meant to ensure the safe transport of hazardous waste. To be in compliance
with RCRA requirements, transporters must have an EPA identification number and
comply with the RCRA manifest system, which details the type of hazardous wast e
being transported and documents the change in location of the hazardous waste
listed in the manifest. [40 C.F.R. §§ 263.11, 263.20, 263.21, 263.22.]
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4. Treatment, Storage, and Disposal (TSD) Facilities
Treatment, Storage, and Disposal (TSD) facilities are the final stop for hazardous wastes
under RCRA and act as the “grave” in the cradle-to-grave process.
a. Definitions
Although TSD facilities are referred to collectively under a single name, there are
different regulations and distinct definitions for the treatment, storage, or disposal of
a hazardous waste. A TSD facility can be involved in all three processes or just a single
process of treatment, storage, or disposal and still be considered a TSD facility. The
regulations for TSD facilities are some of the strictest regulations within RCRA, due to
the importance of this phase of the waste-management process.
i. Treatment
Treatment of hazardous waste is defined as “any method, technique, or process,
including neutralization,” designed to alter the composition of a hazardous waste
so that the waste is either neutralized or made less hazardous or nonhazardous.
The goal of hazardous-waste treatment is to make the hazardous waste “safer to
transport, store, or dispose of” or to reduce the volume of the hazardous waste.
[40 C.F.R. § 260.10.]
ii. Storage
Storage of hazardous waste cannot be considered a long-term solution, as storage
is defined as only “the holding of hazardous waste for a temporary period.” [40
C.F.R. § 260.10.] At the end of the storage period, the hazardous waste must
either undergo treatment, disposal, or move to a new storage facility until
treatment or disposal can occur.
iii. Disposal
Disposal is defined as the “discharge, deposit, injection, dumping, s pilling, leaking,
or placing of any” waste, including both solid (nonhazardous) and hazardous waste,
“into or on any land or water so that [the waste] may enter the environment or be
emitted into the air or discharged into any waters, including ground wate rs.” [40
C.F.R. § 260.10.] Disposal facilities are truly the final resting place for hazardous
wastes, as the waste is deposited at a disposal facility with the intent that the
waste will remain in that specific location even if the disposal facility is no longer
operational or eventually closes.
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b. Requirements to Treat, Store, and Dispose of Waste
TSD facilities are subject to very strict regulations that control how the hazardous
waste can be treated, stored, or disposed of. Facilities must comply with all permitting
requirements and also provide adequate plans that demonstrate a facility’s
preparedness for possible emergencies and facility closures.
i. Permits
Any TSD facility must have a permit from the EPA before it can begin operation.
The permits can be issued either directly by the EPA, or by the state where the
facility is located, depending on whether the EPA has given the state authority to
issue permits. [42 U.S.C. § 6924(a)(7).]
ii. Record Keeping
TSD facilities are required to maintain adequate records about the hazardous
wastes treated or stored at the facility, including compliance with the manifest
requirements during the initial receipt of the hazardous waste. [42 U.S.C. §
6924(a)(1)-(2).]
iii. Land-Disposal Restrictions
Land-disposal restrictions, also known as the Land Ban, were established through
the Hazardous and Solid Waste Amendments and dictate that generally any
disposal of hazardous wastes into landfills or other “surface impoundments” is
prohibited. [42 U.S.C. § 6901(b)(7).]
iv. Contingency Plans
TSD facilities must have a contingency plan in place that is an “organized, planned,
and coordinated course of action to be followed in case of a fire, explosion, or
release of hazardous waste or hazardous waste constituents” that could endanger
human health or the environment. [40 C.F.R. § 260.10.]
v. Closures
A TSD facility must submit a detailed closure plan that includes information on
how the facility will close and how the management of the hazardous waste will be
impacted by a closure. The plan must include an estimate of the expected
operating life of the facility and how long hazardous waste can be stored at the
facility during its operation. [40 C.F.R. § 264.112.]
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C. Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, aka Superfund)
The Comprehensive Environmental Response, Compensation, and Liability Act (referred to by
its acronym CERCLA, but also known as the Superfund) was enacted in 1980 with the
purpose of taxing waste-generating industries and giving the EPA the authority to clean up
spills or potential spills, known as releases, of hazardous substances. The tax levied by the act
was combined and used as the source of funding to clean up affected areas, which is why
CERCLA is also known as the Superfund. The main goals of CERCLA are to assign liability to
parties responsible for releases, prioritize and clean up areas impacted by waste releases, and
to recover costs for cleaning up the releases.
1. Definitions
CERCLA has unique definitions for terms that impact how the CERCLA process is
initiated and what materials are controlled under the act. Some terms used within
CERCLA even have unique definitions compared to the definition of the same words in
other legislation addressing hazardous material, including RCRA.
a. Release
The term “release,” as used in CERCLA, refers to many actions including “spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment.” [42 U.S.C. § 9601(22).]
Abandoning barrels or containers filled with hazardous substances or pollutants is also
considered a release under CERCLA. Releases do not include workplace human
exposure to hazardous substances or vehicle emissions.
b. Remove and Removal
The terms “remove” and “removal” are used to denote “the cleanup or removal of
released hazardous substances from the environment.” [42 U.S.C. § 9601(23).]
Although the cleanup process may involve many elements beyond just a physical
removal of the hazardous substance from a location, remove and removal are used as
catch-all terms to refer to the entire cleanup process.
c. Hazardous Substances
The definition of hazardous substances under CERCLA is very expansive, and cross references the definition of hazardous materials used in numerous other
environmental statutes. Under CERCLA, hazardous substances are defined as
“elements, compounds, mixtures, solutions, and substances which, when released into
the environment may present substantial danger to the public health or welfar e or the
environment,” any hazardous substance or toxic pollutant listed in the Federal Water
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Pollution Control Act, any hazardous waste (through characteristics or listed status)
outlined in RCRA, any hazardous air pollutant listed in the CAA, and any “ imminently
hazardous chemical substance or mixture” designated in the TSCA. [42 U.S.C. §
9601(14).]
i. Exclusions
The term “hazardous substance” does not include any type of crude oil, natural
gas, or natural gas liquids. [42 U.S.C. § 9601(14).]
d. Facility
A facility can be a traditional manmade facility or industrial building, but can also be
“any site or area where a hazardous substance has been deposited, stored, disposed
of, or placed, or otherwise come to be located.” Specifically, the term “fa cility” can
mean “any building, structure, installation, equipment, pipe or pipeline (including any
pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor vehicle, rolling stock , or
aircraft.” [42 U.S.C. § 9601(9).]
e. Act of God
In many cases, liable owners will claim that the release of the hazardous substance
was an act of God, in an attempt to absolve their liability. An act of God is considered
to be any “unanticipated grave natural disaster or other natural phenomenon of an
exceptional, inevitable, and irresistible character, the effects of which could not have
been prevented or avoided by the exercise of due care or foresight .” [42 U.S.C. §
9601(1).]
2. Triggering the CERCLA Process
The CERCLA process begins with a release, or a threatened release, of a hazardous
substance. Releases can be recent or actively occurring, but CERCLA also applies to
historical and existing sites where releases of hazardous substances have o ccurred.
a. Notification of a Release
If a person at a facility becomes aware of an unlawful release of hazardous
substances, there is a statutory requirement that the person reports that release to
the EPA National Response Center. Once the notification of the release has been
received by the EPA, then subsequent government agencies and the governor of the
state where the release has occurred are notified in order to begin a remediation
process. [42 U.S.C. § 9603.]
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3. Response Actions
CERCLA has two types of response actions that can be taken as part of the removal
process: short-term removal actions and long-term remedial actions.
a. Short-Term Removal
Short-term removal actions are taken when there is an urgent or actively occurring
release that needs to be addressed to protect human health and prevent
contamination of soil or ground water. Short-term removal actions are used in
situations where immediate intervention would be beneficial to prevent damage or
correct the issue that is the source of the release, such as leaking storage containers.
[40 C.F.R. § 300.415.]
b. Long-Term Remedial Actions
Long-term remedial actions create more permanent solutions to help reduce the
negative impacts of a release of hazardous material. The ability to initiate long -term
remedial actions is controlled by whether the site in question is listed on the National
Priorities List, which is part of the National Oil and Hazardous Substances Pollution
Contingency Plan, known as the National Contingency Plan .
i. National Contingency Plan
The National Contingency Plan establishes the programs and priority system that
determines, among other issues, how much money should be spent on long -term
remedial actions and the roles of the federal and state governments in the removal
process. [42 U.S.C. § 9605.]
ii. National Priorities List
The National Priorities List determines the priority of when a site should undergo
long-term remedial actions. The listing of sites on the National Priorities List is
determined mathematically based on a Hazard Ranking Score, which takes into
consideration the toxicity of the hazards that have been released, as well as the
amount and concentration of the hazardous waste. The mathematical and scientific
equations used to calculate a site’s Hazard Ranking Score are publishe d in the CFR.
[400 C.F.R. § 300, app. A.]
4. Liability
Liability is a key component of CERCLA, and determining who is liable for the release of
hazardous materials determines responsibility for the subsequent cleanup and cost, and
the availability of federal Superfund money to assist in the removal process. Federal and
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state governments, as well as private parties, can sue any responsible party to recover
cleanup costs incurred during the removal process. Liability can attach to the responsible
party during any stage of the waste-management process, including generation,
transportation, or disposal. [42 U.S.C. § 9607(a).]
a. Potentially Responsible Parties
Four categories of potentially responsible parties (PRPs) can be held liable under
CERCLA. Responsible parties can be held subject to joint and several liability and may
be required to pay damages to private parties for damages incurred, as well as to
reimburse the government or private parties for costs incurred during the removal
process.
i. Current Owners and Operators
Current owners and operators of a facility or vessel can be a PRP under CERCLA.
[42 U.S. Code § 9607(a)(1).]
ii. Previous Owners and Operators
Even if a person (as defined in CERCLA to include individuals as well as
corporations and state or federal government agencies) is no longer the current
owner of a facility where the release occurred, but was the owner at the time of
the initial disposal, then the person can be held liable under CERCLA. [ 42 U.S.
Code § 9607(a)(2).]
iii. Arrangers
An arranger is someone who “by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport for disposal or
treatment, of hazardous substances owned or possessed by such person, ” can be
held liable for any releases of hazardous substances, even if the releases occurred
after the transportation. [42 U.S. Code § 9607(a)(3).]
iv. Transporters
Any transporter that “accepts or accepted any hazardous substances for transport
to disposal or treatment facilities” is liable for “all costs of removal or remedial
action incurred” by the federal government or state government during removal.
[42 U.S. Code § 9607(a)(4)(A).]
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