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1. Match the following statements with its corresponding environmental theory:
A. The environment has rights
1. Economic Approach
B. The current rate of growth is
not sustainable because there is
exponential growth but only
limited resources
2. Environmentalist Ethic
C. The current rate of growth will 3. Optimist view
be sustainable because advances in
technology will remove limits to
growth
D. Environmental law should
maximize the benefits to society
while minimizing the costs
4. Pessimist View
1. A-2; B-4; C-3, D-1
2. Explain the concept of the “tragedy of the commons”.
2. When many users share a common resource, none of them has the incentive to conserve the
resource by cutting back on their own use because if they do, then all of the other users will
merely consume his share. Furthermore, the one individual’s action at conservation will not
have much effect on conserving the whole because others presumably will continue their
behavior. Thus, the common resource will be depleted due to the difficulty in conserving it.
3. What is are some significant criticisms of the Economic Approach to environmental
regulation?
3. The Economic Approach is only as good as the information that is used to make the choices.
In the environmental area, much of the critical information is too difficult to measure accurately.
Thus, the lack of accurate information introduces biases and artificialities in the decision-making
process. Furthermore, it operates on certain assumptions that are not entirely valid. For
example, to measure the value of clean air by comparing the property values of a clean air city
with a dirty air city, one must assume that the value of clean air to a person is reflected in the
price he is willing to pay for a house. This ignores the fact that the willingness to pay for clean
air depends on how much money a person has overall. This tends to introduce a bias against
poor people.
4. What is the Chevron “two-step” test, and what are the argument for and against this
deferential standard?
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4. Under the Chevron two-step test, first the court inquires whether Congress has spoken
directly on the issue. If so, then the agency must follow Congress’ explicit intention. If,
however, Congress has not unambiguously spoken to the issue, then the agency has the power to
interpret the statute in any “reasonable” way. The arguments for this deferential standard
include: 1) courts are not experts and so should not be required to decide complex technical
issues, 2) many environmental law issues are policy issues, not legal issues, and thus not
justiciable, and 3) we don't want all agency decisions being tied up in litigation.
5. What are the arguments for finding the NEPA has substantive “bite”, i.e. that an EIS
must actually be given some substantial weight in the decision making process of an
agency?
5. Under NEPA 101(a), the intent of Congress is that the federal gov’t use “all practicable
means and measures...to create and maintain conditions under which man and nature can exist
in productive harmony.” Also, in 101(b), NEPA places a duty on the agencies that they have
the “continuing responsibility” to “use all practicable means” to take various steps to protect
and conserve the environment. Furthermore, in 102(1) there is the affirmative statement that
“the policies, regulations, and public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in this chapter.” Together, these
statements provide some basis for substantive bite of NEPA. However, the Supreme Court in
Strycker’s Bay has explicitly found that these clauses are precatory in nature, and too vague to
create a substantive duty to give any particular weight to the EIS.
6. What are the content requirements of an EIS?
6. Under NEPA 102(C), the report must contain a “detailed statement” on the environmental
impact of the action, adverse environmental effects that can not be avoided, proposed
alternatives, and any irreversible commitments of resources which would be involved.
7. Even though NEPA has been held to place no substantive requirements on a federal
agency, in what ways might it still provide substantive benefit to the environment?
7. NEPA requires that the agency collect data on the environmental impact, and prepare a
detailed report in the form of an EIS. The natural result of this procedure is to heighten
government awareness of environmental considerations, and mitigate the “government failure”
of lack of information. The fact that the EIS is made public provides an opportunity for the
public to put pressure on the preparing agency to provide an adequate report, as well as to give
the report some weight in the decision making process. Finally, the expense of EIS preparation
serves as some minimum deterrence of unnecessary actions by federal agencies.
8. Describe the process by which a previously unregulated air pollutant obtains a
primary National Ambient Air Quality Standard (NAAQS).
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8. First, the EPA decides to “list” the pollutant under 108(1). In order to list the air pollutant,
it must 1) “in his judgment...endanger the public health or welfare” and 2) “result[] from
numerous or diverse...sources.”
If the pollutant meets these two criteria, then the
Administrator of the EPA has the non-discretionary duty (as held by NDRC v. Train) to list the
pollutant. Once the pollutant is listed under 108(1), the EPA issues a “criteria” under 108(2)
concerning that pollutant. The criteria is a collection of the latest scientific data on the effects of
exposure to the pollutant. Then, the EPA is required to issue a primary NAAQS under 109(b)
for that pollutant.
9. What is the EPA required to consider when setting the level for a primary NAAQS?
Explain the significance or interpretation of any statutory terms used.
9. Under 109(b)(1), the EPA is required to issue a NAAQS which, in his “judgment,” and
based on the “criteria”, protects the “public health” with an “adequate margin of safety.” The
word “judgment” in the statute provides discretion for the EPA in determining the actual level
at which to set the NAAQS. For example, if there is some uncertainty in the criteria data which
causes a corresponding uncertainty in the required level, the EPA has the discretion to pick a
level based on its own judgment. The term “public health”, although it does not require
protection of every single person, has been interpreted by the EPA to allow consideration of the
particular exposure limits of sensitive populations in the general public, for example, children.
Lastly, the requirement for an “adequate margin of safety” indicates Congress’ intent that the
NAAQS be set at a precautionary level, and that the EPA does not require clear proof or a
medical consensus that a particular exposure level is harmful.
10. Is EPA required to consider the costs to a particular industry of setting the NAAQS
for a particular pollutant at a given level? Why or why not?
10. No. According to the DC Circuit court in Lead Industries v. EPA, the EPA is not required
to consider costs of its decision to fix the NAAQS at a given level. There is no statutory
language in the NAAQS provision (109(b)(1)) that directs the EPA to take costs into account.
Where Congress has wanted EPA to take costs into account, it has expressly provided so in the
statute. As a result, the EPA could have totally eliminated lead emissions (set the NAAQS to
zero) without regard to the cost to the lead industries because there was enough uncertainty in
the exposure data for lead to support such a decision as not being “arbitrary or capricious.”
11. What limitations, if any, does the Clean Air Act put on how stringent a state may
set its emission standards for motor vehicles?
11. According to 177, the state may implement a standard that is “identical to the California
standards,” but it may not take any action which would limit the manufacture or sale of an
engine that was certified as meeting California standards. This prevents the creation of more
than two nationwide standards - the federal standard and the California standard.
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12. (T/F) The Clean Air Act sets retroactive motor vehicle emissions limitations for
existing cars.
12. False. It only sets prospective standards for new vehicles.
standard that they already had.
Older vehicles retain the
13. What level of emission control technology is required for all new stationary
sources, regardless of their location? What is the purpose of this standard?
13. The New Source Performance Standard (NSPS) of 111 requires that the new source
implement the “best” system, taking costs into account, that has been “adequately
demonstrated.” The purpose of this standard is to provide a uniform national emission standard
for new sources that prevents the “race to the bottom” caused by new factories deciding to locate
in clean-air areas so that they could pollute more without violating the ambient air quality
standards (NAAQS).
14. In what way did the NSPS for coal-fired electric plants which was adopted in 1977
(and later repealed in 1990) illustrate a “government failure” in environmental
regulation?
14. In the 1977 amendments to the CAA, a new NSPS for coal-fired electric plants was added.
Special interest groups, including an alliance of Eastern coal mining interests and the Sierra
Club, lobbied the drafters of the bill to insert an added requirement into the legislative history of
the amendments. This added requirement was that the coal-fired plants must achieve a
percentage reduction below what would have been accomplishable by the use of clean-burning
coal, which was only available in the western states. The result was that all coal-fired plants
had to install costly scrubbers, even though those burning the western low-sulfur coal were able
to meet the NSPS without scrubbers. The “government failure” illustrated here is that
concentrated and organized special interest groups can exert pressure on elected officials and
agencies which motivates them to make decisions that are not the most cost efficient.
15. (T/F) Once the EPA has reviewed a SIP and determined that it meets the criteria
set forth in 110, it must approve the SIP regardless of whether it is so stringent that it
puts a severe economic burden on electricity producing plant in that state.
15. True. Union Electric v. EPA.
16. What is the difference between monitoring and modeling in a SIP, and what are
the purpose, benefits, and drawbacks of each?
16. Monitoring is the measurement of ambient air quality using measuring devices. The
purpose of monitoring is to determine whether the actual air quality has exceeded the NAAQS.
The benefit is that it reflects the “bottom line” of whether the NAAQS has been attained. The
drawbacks are that it is limited by technology (how sensitive the equipment is) and by
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measurement methods (how effectively the equipment is used). Modeling is the mathematical
prediction of the relationship between variations in emission levels and corresponding variations
in ambient air quality standards. The purpose of modeling is to predict the results of various
changes in emissions levels. For example, many states’ SIPs include modeling of ozone levels
based on hydrocarbon emissions from cars. The benefit of modeling is that it is predictive and so
it can be used to determine the anticipated effects of changes before they are made. The
drawback is that it is limited by the validity of the model chosen, and the accuracy and
availability of supporting data.
17. What is a Federal Implementation Plan (FIP)?
17. 110(c)(1) provides that if the EPA finds that a state has failed to submit a SIP, or if the
submitted SIP does not satisfy the minimum criteria for a SIP as set forth in the statute, that the
EPA may promulgate a FIP. The FIP is a mandate to the delinquent state of the
implementation plan that they must adopt. As a side note, this provision does not have much
bite because the expense and burden on the EPA of coming up with a FIP is so great that it is not
often done.
18. What limitations does the CAA put on achieving NAAQS by use of dispersion
techniques such as tall stacks and intermittent controls? Why are these methods
disfavored by the statute?
18. 123 provides limitations (but not prohibitions) for dispersion techniques. With regard to
tall stacks, no credit is given for any reduction in ambient pollutant levels that was achieved by
the amount of the stack height in excess of good engineering practice. That is to say that
building a stack taller than what is required by good engineering practice, although it may cause
a reduction in ambient pollutant levels due to high-level dispersion, does not count towards
attainment of the NAAQS any more than a stack that was built in accordance with the height
limits of good engineering practice. Tall stacks are disfavored because they do not result in less
pollution, only more scattered pollution which tends to cause acid rain and exporting of
pollution to other states. With regard to intermittent controls, no credit towards achievement of
NAAQS is given for the use of intermittent controls which vary according to atmospheric
conditions (i.e. polluting more on clean days and less on dirty days). Intermittent controls are
disfavored because they are unreliable due to the unpredictability of the weather.
19. Under the Comprehensive Permit Program enacted by the 1990 amendments to the
CAA, what is the purpose and effect of a “permit shield.”
19. The permit program provides a single permit to be issued to a pollution source which lists
emission levels for each pollutant that the source is allowed to emit. As long as the source is in
compliance with that permit, it can not be in violation of any provision of the CAA that is
directly addressed in the permit. In effect, this shields the sources from being sued by the EPA
should the EPA interpret the CAA in a way that is inconsistent with the issued permit that the
source is relying upon.
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20. What additional requirements are placed on existing sources, new sources, and
major modifications to stationary sources in a designated “non-attainment” area?
20. Existing sources are required to install Reasonably Available Control Technology (RACT),
and new sources are required to attain the Lowest Achievable Emission Rate (LAER).
Furthermore, for new sources and major modifications to stationary sources, the source is
required to comply with an “offset” requirement which mandates that for every unit of pollution
that the new or modified source emits, it obtain a corresponding unit of decrease in the emissions
of an existing source. Lastly, the state as a whole is required to show Reasonable Further
Progress (RFP) from year to year in achieving attainment in these non-attainment areas.
21. What are the limitations where the “offset” in emissions may come from when
building a new or modified major stationary source in non-attainment areas?
21. Under 173(c)(1), the owner or operator of a new or modified major stationary source must
obtain the offset emission reduction from either: 1) from the same source; 2) another source in the
same non-attainment area; 3) a source in a different non-attainment area if: a) the other area has
an equal or higher non-attainment classification, and b) the emissions from that other area
contribute to non-attainment in the area where the source is located (i.e. the pollution from the
other area migrates into the new source’s area).
22. Answer the following questions with respect to an ozone non-attainment area:
a) What are the ozone non-attainment categories?
a) Extreme, Severe, Serious, Moderate, and Marginal
b) How long does an area which is designated as “severe” have to reduce its ambient
ozone level to .12?
b) 20 years
c) What additional requirements are put on the offset program in an ozone
non-attainment area?
c) The offset in emissions must be more than the total new emissions by a ratio which is
determined by the classification. Thus, the offset will result in a net reduction in total pollution.
d) Under the enhanced smog check system, how much would a person have to spend
in engine repairs before an emissions waiver can be granted?
d) $450
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23. Assume that a particular coal-fired electric generating plant generates more than
100 tons per year of both NOx and SO2. Further assume that the plant operates in an
area that is designated as “attainment” of the NAAQS for NOx, but “non-attainment”
for SO2. If the plant wished to make a significant modification to its facilities which
would affect the amount of SO2 it emitted, what emission control technology would the
plant be required to use for the SO2? For the NOx? What would be the emission
control requirements for each if the plant did not wish to make any modifications to its
emissions?
23. A stationary source is a “major stationary source” for a pollutant under 169(1) if it emits
more than 100 tons per year of that pollutant. Under the non-attainment provisions of
172(c)(5), the permit for new construction on a modified major stationary source would require
the Lowest Achievable Emissions Rate (LAER) for the non-attainment pollutant, here SO2 (it
would also have to get an offset from somewhere if the emission level of SO2 increased). Since
the NOx has attained the NAAQS, it is required under the Prevention of Significant
Deterioration (PSD) provisions of 165(a)(4), to install the Best Available Control Technology
(BACT) for the NOx. If on the other hand, the plant did not make any modifications, it would
still be required to install BACT for the NOx, and also install BACT for the SO2 under
165(a)(4), even though the non-attainment provisions for existing sources generally only
requires Reasonable Available Control Technology (RACT). This is because 165(a)(4) explicitly
states that if a major source is PSD for any pollutant, then it must install BACT for “each
pollutant...emitted from, or which results from such facility.”
24. In the comprehensive Acid Raid allowance trading program, who may buy the
allowances that are available on the allowance trading market?
24. Almost anyone, including environmental groups. For example, a group of college students
could get together to buy one allowance and “retire” it by not trading it or banking it.
25. After the year 2000, what will a new source that emits sulfur dioxide be required to
do?
25. Under the Acid Rain allowance trading program, Phase II begins in the year 2000. Under
Phase II, no more allowances to new sources will be given out, and there will be a fixed number
of total allowances granted. Thus, a new source will have to purchase one of the existing
allowances from one of the existing sources.
26. In emissions trading, what are “bubbles?” What is netting?
26. Bubbles in emission trading is the technique of treating an entire facility that has many
emitters (such as multiple stacks) as a single emitter. Netting is the method of treating internal
offsets within a “bubble” as a net change in a single emitter. By treating an entire factory as a
“bubble”, the owner can increase emissions by constructing a new emitter within one part of the
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factory, and net out any offsets from reductions in other parts of the factory, in order to avoid the
stricter standards that would otherwise be applicable to the construction of a new emitter. Such
were the facts in Chevron.
27. Why has the allowance trading program in the Acid Rain program of the CAA
resulted in less trades than originally expected?
27. The Phase II deadline in 2000 will limit the total number of permits to 8.9 million tons per
year of emissions. Most plants are speculating that this limit will cause the price of allowances
to rise sharply. Thus, most plants have had an incentive to make major reductions in the short
term by using low-sulfur coal, etc. so that they can bank their excess allowances while the cost of
compliance is still low. Furthermore, the profit motivation of most regulated utilities is lower
than that of a normal business because they are limited by the government in how much profit
they can make. Thus, it is unclear to these regulated utilities whether they will be able to
actually realize profits from allowance trading.
28. (T/F) Under the Clean Water Act, agricultural runoff is defined as a “point source”
for purposes of effluent limitation regulation.
28. False. Agricultural runoff is specifically excepted from the definition of a “point source” in
502(14).
29. In what general ways is the Clean Water Act similar to the Clean Air Act? How is
it different?
29. The CWA is similar to the CAA in that it regulates “effluents” from point sources, which is
analogous to regulating “emissions” from air pollution sources. Both have a comprehensive
permit program which requires permits to pollute. Both use technology based standards such a
BACT. Both are national and uniform in application. Both rely on state implementation of
plans for compliance. However, the CWA differs from the CAA in that it also regulates
discharges from “non-point sources.” Furthermore, the CWA relies much less on ambient
standards than does the CAA. The CWA also has a broader impact than just water pollution
regulation because it also has been interpreted to regulate wetland development.
30. In what way does the Clean Water Act provide statutory authority for the
regulation of wetlands?
30. Section 404 of the CWA provides that a permit is required to “discharge dredged or fill
material into the navigable waters.” Section 502(7) defines “navigable waters” as “waters of
the United States.” Because these sections appear on their face to apply to navigation safety, the
Army Corps of Engineers promulgated regulations which defined “waters of the United States”
to include “adjacent wetlands” due to the strong interdependency on the wetlands and rivers
and streams (i.e. flood control, filtering, etc.). The Corps further defined “wetlands” as places
where there is sufficient saturation to support wetland-type vegetation. The Supreme Court
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validated these definitions as a reasonable interpretation of the CWA in Riverside Bayview
Homes.
31. Explain the term “sequencing” as it relates to wetland regulation.
31. “Sequencing” is a reference to the hierarchy of options that a developer must follow with
regard to wetlands. First, a developer may not develop (will not be issued a permit to fill) a
wetland if a “practicable alternative” was available at the time of market entry, regardless of the
time at which the permit was applied for. Such was the court’s holding in Bersani. Second, if
there is no practicable alternative, the regulations provide that the developer still must minimize
the impact of his development on the wetland. Lastly, the developer is required to perform
“compensatory mitigation” by creating as much wetland as he destroys.
32.
How does the concept of “mitigation banking” differ from ordinary
“compensatory mitigation” of wetlands. What are its advantages? What are its
significant criticisms?
32. Mitigation banking is the creation beforehand of wetlands by a third party for credit which
is sellable to a developer when he needs to perform compensatory mitigation. The advantages of
mitigation banking are that it is done beforehand, so we know it is done. Also, due to economies
of scale, it may be more cost effective for one party to develop a big wetland and sell credits to
many different developers. A criticism is that we don’t really understand what an “equivalent”
wetland would be, or how much to credit the created wetland. Wetlands are complex and thus
trading them straight out is probably inaccurate due to uniqueness.
33. How do the common law concepts of nuisance and strict liability compare with the
Clean Air Act with respect to deterrence, compensation, and procedural ability to
effectively regulate environmental harms?
33. With respect to deterrence, since nuisance law deters only unreasonable activities, and
whether an act is reasonable is dependent on a cost/benefit analysis, it deters efficiently. Strict
liability also deters efficiently because the actor will only pay for prevention measures that cost
less than his expected liability payments. The Clean Air Act, however, over-deters from an
economic viewpoint because it deters all harms to health, without regard to cost. With respect
to compensation, nuisance law potentially under-compensates victims because it only
compensates when the actor was unreasonable. Strict liability compensates all victims without
regard to the reasonableness of the actor. However, the Clean Air Act provides no
compensation. But it also allows no harms. With respect to procedural aspects, the Clean Air
Act is better suited to the large number problems and technically complex issues associated with
environmental regulation. Nuisance law and strict liability both are only effective for small
numbers of victims and small numbers of tortfeasors. Furthermore, standing may be a bar to a
person bringing an action under traditional tort principles, whereas the CAA expressly grants
standing to “any person” under its citizen suit provision.
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34. Match the following common law theories with their respective standards:
A) Market Share Liability
1) benefit of the nuisance must
significantly outweigh the harm
B) Increased Risk of Disease
2) each defendant is liable in
proportion to their probability
of causing the harm.
C) Injunction of prospective
nuisance
3) unquantifiable increase is not
presently compensable
D) Monetary Damages
4) requires high probability of
significant future harm
34. A-2; B-3; C-4; D-1.
35. List and explain the components of risk assessment with regard to toxics.
35. 1. hazard identification - the step of determining which substances may be hazardous, and
thus candidates for further investigation. 2. dose response assessment - determining what
dosage level of the substance is dangerous. Typically includes performing high-dose tests on lab
rats, and then fitting the resulting data to a dose response curve to extrapolate to lower dosage
levels. 3. Exposure assessment - determining what level of exposure is expected for the
maximum exposed human, and whether this level of exposure is dangerous based on the dose
response data. 4. Characterization - final determination of the nature of the risk based on the
modeled data.
36. What are the significant biases in the risk assessment process that tend to introduce
systematic over-estimation of the risk of a substance?
36. According to the OMB report, the risk assessment process systematically chooses the most
conservative option at every step of the analysis. This includes: 1. using very sensitive animals,
2. counting benign tumors as positive, 3. giving greater weight to studies that show positive
correlations rather than no correlation, 4. using the linear dosage response curve rather than the
threshold dose response curve in every case, and 5. assuming that everyone is the “maximum
exposed person”.
37. What is the potential danger of banning synthetic pesticides that pose a minimal
risk of cancer?
37. According to Ames, fruits and vegetables contain natural cancer-preventing agents. Thus,
a pesticide that preserves them, making them more readily available at a lower cost to the public,
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is desirable because it helps fight the leading cause of cancer - poor diet. The insignificant
increase in risk posed by the use of a synthetic pesticide such as Alar is far outweighed by the
benefits of eating more healthy fruits and vegetables.
38. According to Justice Breyer, what is the “vicious circle” that results in inefficient
regulation of toxics?
38. The vicious circle has three elements/causes: 1. the general public focuses their attention on
the most “visible” harms presented in the media, even though the might not be the most
dangerous. 2. Congress responds reactively to the concern of the public by enacting statutes
that regulate the visible harms. This “random agenda selection” prevents resources from going
to their highest value use. 3. Agencies, acting pursuant to the statutes, adopt regulations and
procedures that attempt to eliminate the harms completely, regardless of the cost, and
inconsistently with each other. Going after the “last 10%” like this causes the marginal costs to
far exceed the marginal benefits. Also, the inconsistencies among agencies cause economic
inefficiency.
39. What is Justice Breyer’s proposal for ending this inefficiency?
39. Justice Breyer proposes the formation of a central government agency that oversees the
regulatory procedures of each federal agency. The characteristics of this agency are that they
would have expertise, authority and prestige. Due to their expertise and prestige, the public
would trust their judgment, and stop reacting to the latest sensationalized danger presented in
the media. Due to their authority, they would be able to set the priorities of the agencies,
preventing inconsistencies and costly activities.
40. What major criticisms are generally forwarded regarding Justice Breyer’s analysis
and proposal?
40. As to his analysis, the major criticism is that he has used the wrong measurement of what is
economically efficient. Breyer states that we should maximize the number of lives saved per
dollar spent. However, this assumes that all deaths are equal. In reality, all deaths might not
be equal because the public would be more willing to tolerate voluntary risks as opposed to
involuntary risks, death of old persons rather than death of young persons, and death by benign
causes, rather that death by painful causes (i.e. dread disease). As to his proposal for a
centralized overseeing agency, the major criticisms are that it is undemocratic, and that it would
merely be an ineffective reshuffling of the existing beurocracy.
41. How does RCRA define “hazardous waste”?
41. Under 1004(5), hazardous waste is a “solid waste” which causes or significantly
contributes to serious illness, or poses a substantial threat to human health or the environment if
improperly handled. 1004(27) further defines “solid waste” as just about everything which is
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discarded, including liquids, semisolids and contained gasses, except for domestic sewage and
agricultural runoff.
42. How does the EPA determine whether to “list” a hazardous waste under RCRA?
42. There are two basic approaches, the “characteristic” approach in which a waste will be listed
if it meets certain characteristics of toxicity, ignitability, corrosivity, reactivity or other
hazardous characteristics. There is also the “listing” approach whereby a hazardous waste
becomes listed either because it is acutely hazardous, or because it contains other listed
substances.
43. Under RCRA, what will happen to a hazardous waste “generator” who holds
hazardous waste for more than 90 days?
43. The “generator” will become subject to the more stringent requirements of a Treatment,
Storage, and Disposal (TSD) facility. These include obtaining an operating permit as a TSD,
being designed to minimize releases of hazardous material, not being located in floodplain or
earthquake fault, installation of groundwater monitoring system, and preparing spill response
plans.
44. What options are available under RCRA to a TSD upon closure?
44. The TSD may either execute a “clean closure”, meaning that they remove all hazardous
wastes, and clean up the site to as good as new, or they may monitor the site for 30 years to
detect any leakage. These options are generally referred to as regulation “beyond the grave”.
45. Why is RCRA generally referred to as providing a “land ban” for disposal of
hazardous wastes on land?
45. RCRA provides that a TSD may not dispose of hazardous wastes on land unless they either
substantially reduce the possibility of migration of the hazardous waste, or they substantially
diminish the toxicity of the wastes so that it poses a minimal threat to human health or the
environment.
46. What penalties or remedies may be sought for a person who violates RCRA?
46. The EPA is granted the power to impose civil penalties of up to $25,000 per day, or bring
civil suits in federal court seeking either temporary or permanent injunction. Furthermore, the
EPA may withdraw the person’s operating permit. Additionally, the EPA may seek criminal
penalties for persons who “knowingly” violate the statute. Lastly, private citizens are granted
the standing to bring civil suits to enforce the statute.
47. What is the purpose of the “manifest” system of RCRA?
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47. Manifests are a document that contains the identification of each batch of hazardous waste.
The generator is required to create the manifest, and it is required to accompany the waste from
the “cradle to the grave.” The transporter is required to ensure that the manifest and the waste
are delivered to the TSD. The manifest provides tracking and identification of the waste in case
of confusion or loss.
44. What three ways are there to clean up a hazardous waste site under CERCLA?
44. The government can mandate an abatement action, forcing the private party to clean up the
site under 106. For this to occur, there must be a finding that there is substantial
endangerment of health or the environment. The government can clean up the site themselves
under 104, and pay for the cleanup out of the superfund (as long as the site is on the NPL), and
then seek reimbursement of the fund under 107 from the PRPs. Lastly, a party may institute a
voluntary cleanup under 104 and seek contribution under 107 from other PRPs.
45. What are the two kinds of response actions, and what is the difference between the
two?
45. There are “removal” actions and “remedial” actions. Under 101(23), the removal action
includes the cleanup and removal of released hazardous substances. They are usually short term
in nature. Under 101(24), remedial actions include actions consistent with a permanent
remedy. They are usually long-term in nature.
46. What are the two major parts of the National Contingency Plan, and what is the
purpose of each?
46. The NCP consists of a National Hazardous Substance Response Plan, and a National
Priorities List. The NHSRP is the methods and procedures that are to be used for guidelines in
cleaning up a site. This plan ensures that all clean ups are done consistently and properly. The
NPL is a list of the most hazardous releases or threatened releases in the U.S., ranked according
to priority. Sites on this list may be cleaned up using funds from the Superfund.
47. (T/F) If a private party dumped toxic wastes into a toxic dump site in 1967 in
accordance with then-existing law, he may still be held liable under CERCLA for its
clean-up even though he did nothing illegal.
47. True. CERCLA liability is both strict and retroactive. Thus, it does not require any level
of fault.
48. What does the government need to show to make out a prima facie case of liability
under CERCLA?
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48. The government must show 1) that the site is a “facility”, 2) that there was a release or a
threatened release, 3) that the government incurred clean-up costs, and 4) that the defendant is a
PRP.
49. What are the four classes or PRPs?
49. 1). Current owners or operators of the facility, 2) owners or operators at the time of the
disposal, 3) persons who arranged for transport (generator liability), and 4) persons who
transported substances to the site (transport liability).
50. Under CERCLA, what are the defenses to liability for the present owner of a
facility at which there was a release before he purchased the facility?
50. Under 107(b), there are three standard defenses : 1) act of god, 2) act of war, and 3) third
party intervention. For third party intervention, the owner must show that he did not have a
contractual relationship with the third party, and that he exercised due care and took precautions
against foreseeable acts. Under 101(35), a “contractual relationship” does not include
purchases of land where the buyer did not have reason to know that any hazardous substance
was released or disposed of on the facility. This requires that the new owner at least conduct a
title search, but depending on the sophistication of the party, it may require more affirmative
inquiries.
51. Suppose both Generator A arranged for the transportation of mercury to a
hazardous waste site. Further suppose that B arranged for transportation of beryllium
to the same hazardous waste site. A release of mercury is found in the soil of the site
during clean up efforts by the government under CERCLA. The government is able to
determine that the source of the mercury was Generator A because of slight traces of
another element that was characteristic of the mercury produced by Generator A.
However, Generator A has since gone out of business. May the government still hold
Generator B liable for the clean up even though there was no evidence release of B’s
beryllium?
51. Yes. Under 107(a)(3), the government only need to show that the generator arranged for
transport of a hazardous substance to a facility containing “such” substances, where there was
release of any substance. The court in Monsanto interpreted the word “such” to mean “like” or
“similar to”. Thus, the substance released does not have to be shown to have originated at
Generator B, it only needs to be like the substance that Generator B arranged for transport. It is
likely that the court would find that beryllium and mercury are similar enough to hold B liable
for the clean up.
52. (T/F) After a PRP settles with the government, the remaining PRPs liability is
reduced by the amount of the settlement.
52. True. Under 113(f)(2), the settlement reduces the potential liability of other PRPs.
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53. (T/F) A private party may seek and injunction against the owner of a hazardous
waste site to enjoin a threatened release of a hazardous substance.
53. False. As interpreted by the court in Cadillac Fairview, CERCLA 106 only provides for
abatement injunctions by the President, and not by private parties.
54. What are the CERCLA standards for how much a site must be cleaned up?
54. Under 121(d) a site must be cleaned up to a point which “assures protection of human
health and the environment.” To this end, hazardous substances must be cleaned up until they
comply with all legally Applicable or Relevant and Appropriate Requirements (ARARs). A
standard is applicable if it directly regulates the substance, and is relevant and appropriate if it is
nevertheless analogous and should be followed.
55. Upon petition to list an species on the endangered species list, how long does the
Secretary of the Interior have to make a determination as to whether to list the species?
55. One Year.
56. If the Secretary determines that it is not appropriate to list a given species after
citizen petition, under what standard of judicial review will that decision be
scrutinized?
56. The arbitrary and capricious standard for failure to perform a discretionary duty under the
Administrative Procedures Act. See Northern Spotted Owl.
57. (T/F) An agency may not consider cost when determining whether to stop an
action which otherwise beneficial if it jeopardizes an endangered species.
57. True. See TVA v. Hill.
58. Farmer Fred owns a sheep herd. Farmer Fred lets the sheep herd freely graze on a
hillside which is his private property. A local scientist discovers a new species of
sparrow which lives only in these steep hillsides where it can eat the seeds of a
particular tree that grows only on these hillsides. Fred’s sheep, as they are grazing,
tend to eat the young saplings of this special tree. A citizen’s group brings an action to
enjoin Fred from using this particular hillside for grazing. Do the citizens have
standing to bring this suit? What section of the ESA would the citizens allege that he is
violating? How would the citizens interpret this section in their claim?
58. First, the citizens are granted standing expressly under the citizen suit provision of 11(g) to
“enjoin any person...who is alleged to be in violation” of the ESA. The citizens would likely
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bring the action as a violation of §9’s prohibition on “taking” an endangered species. Their
interpretation of the statute would be based on the definition of “take” in §3(19) which includes
to “harm”. The Supreme Court in Babbitt held that the Secretary’s interpretation in his
regulations that the word “harm” included “habitat modification” was a reasonable
interpretation of the statute. Thus, the citizens would argue that Fred’s grazing use of his own
land modifies the habitat of the new species of sparrow because it results in fewer of the special
trees reaching maturity.
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