Chapter 1
Overview and History
I.
HISTORY: WHAT’S NEXT ARTICLE
Rachel Carson, The Cuyahoga and the Santa Barbara Channel
History
*1400 AD on: The Common Law: (a) trespass; (b) nuisance; (c) strict
liability(Rylands v. Fletcher)
*English Common Law adopted wholesale throughout the colonies (exc
Louisiana)
*Labor Movement led to workplace protection laws – inside and outside
environment
*Property Laws :Trespass and Nuisance Modified to meet the needs of the
Industrial Revolution
*1899 Rivers & Harbors Act: Corps of Engineers has permit authority
over any
construction in “navigable waters of the US”. Permit authority
largely ignored until the 60”s but the act was used to regulate
hazards to navigation.
*Safe Drinking Water: Prime concern spawned early regulation of water
systems
*Smoke Ordinances: Backyard Barbeques and Big V-8’s: Southern
California in the 60’s. Dr. Haagen-Smit 1969 Clean Air Act - local
efforts such as those in LA led to state and federal enabling legislation
that defined intergovernmental relationships (eg, pre-emption)
* 1969 Santa Barbara Oil Spill
* 1971 Clean Air act amended gave California power to require pollution
control on cars
* NEPA National environmental policy Act(state environmental policy
act)
* May 1971 Ruckleshaus said life style change if want better environment
 1971 Lloyds’ of London no longer insure heads of companies
 The Cuyahoga River Burns: The Clean Water Act revised in 1972
2.
SCOPE OF ENVIRONMENTAL LAW
1.
A.
Web Materials: Environmental Law Research Module
Disclosure
1.
2.
3.
B.
Gateway
1.
2.
C.
Toxic Substances Control Act (TSCA)
Federal Insecticide Rodenticide and Fungicide Act (FIFRA)
Media Specific
1.
2.
3.
4.
5.
D.
Emergency Planning and Community Right to Know Act (EPCRA)
National Environmental Policy Act (NEPA)
The Freedom of Information Act (FOIA)
Clean Air Act
Clean Water Act
Rivers and Harbors Act of 1899
Safe Drinking Water Act
Noise Abatement
Waste Stream
1.
2.
3.
The Resource Conservation and Recovery Act
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA or Superfund)
The Emergency Planning & Community Right-To-Know Act (EPCRA)
E. Resource Management
•
Coastal Zone Management Act of 1972
•
Endangered Species Act
•
Surface Mining Control and Reclamation Act of 1977
•
Multiple Use Sustained Yield Act of 1960
•
Federal Land Policy Management Act
•
Marine Mammal Protection Act
•
Reclamation of Irrigation of Lands by Federal Government
F. Consumer Protection:
1. Advertising
2. Packaging
G. Workplace Safety:
1.General Environmental Conditions
2.Indoor Air Pollution
H. Consumer Product Safety: Kids’ Playground Equipment
3.
WHAT POLICIES SHOULD BE IMPLEMENTED? :
A.
PHILOSOPHICAL BASES:Rachel Carson and a Safe Environment (p5):
Pesticides only a small part of chemical inventory: 2000 new chemicals EVERY
YEAR – totally outside limits of biological experience;
Babbitt: Biodiversity and Spirituality: Noah and The case against, “Deep Ecology”
B. Who Should Speak for the Environment: Standing in Litigation
E. Policy Bases of Environmental Law:
1.
Science-Based Regulation: Do we Know Enough? Business
and Environmentalists want more data
a.
EPA Scientists Priorities (’95 survey)
b. Funding Research: Toxics materials, Fuel
cells and Solar Tax Credits…
c. Secondary Impacts: Sprawl and Growthinducing
d. Politicization: Union of Concerned Scientists
http://www.uncw.edu/evs/bio485coursemat.html/
2.
Economics:
a. Classical Economics: Internalize or the Market Fails
(Dale, Et Al)
1.
2.
3.
4.
Externalities
The Economy of Nature v. Transformative Economy
Public Goods (Williams p14) eg, Public Trust Property
Market Based Mechanisms v. “Command and Control”
(vehicle code = command and control)
b. Cost-Benefits:
(1)
Consideration of Cost: Lead in Gasoline
(2)
Quantification of Costs/Benefits: Risk
Assessment/Analysis: RFF Paper
c. No Right to Pollute: Case (Driscoll v. Adams)
3. Political Considerations:
a. The Election Process and the Environment (campaign finance,
voting rights, key issues) (Buckley - Valeo)
b. Changes of Party: 1994 and 2003; 2000 and 2002 elections:
Arsenic, Global Warming, ANWR
c. Federalism: Local, State and Federal Power Sharing eg, CZMA,
CAA, CWA
d.
Environmental Justice Considerations:
e.
Regulatory v. Legislative Approaches: Political
Appointees
Spillover No NOx SIP CALL
f.
4. Mechanisms of Environmental Law
a. The Agency
b. “Command and Control”, “Market-Based”
“Pollution Charges”
c. Levels of Government Involved
d. Enforcement: State/Federal
e. Education and Assistance
(technical and financial)
Chapter 2
The American Legal System
A. Roots: The Common Law and the Civil
Law Models
1.
Philosophical and Religious Bases:
Jefferson,Thoreau,
“Deep Ecology” (logging case),
Ducks Unlimited and the Blue
Laws
2. Anglo-American Common Law
a. Basic Concepts: Freedom of Contract & Property Rights: Rights
and Remedies; Civil Law: The Law of the World, and Louisiana:
b. The Courts and Precedent
(1) Precedent: The Prerogative of the Courts
(a) McPherson- Greenman
(b) Nuisance/Trespass: Evolution after the Industrial
Revolution; Borland v. Sanders Lead
(c) Borrowing: If no p
(2) Interpreting Statutes: Lead Industries, Industrial Dept. &
Whitman (“ample margin”)
(3) Options: Sustain, Modify, Reverse, Reverse in Part,
Return for Proceedings consistent, (S.Ct. reversal
website)
B. The Constitutional Model: What it Means
1. The Articles of Confederation, the Constitution and the
Bill of Rights
2. Key Constitutional Concepts:
a.The Concept of Delegation: Whitman ATA
b.The Police Power and Health & Safety: The Breadth
of Nuisance
c. Due Process: Procedural Due Process (Kettleman
City) and “Takings” (Lucas, et. al.)
d. Equal Protection: Drawing Legislative Lines;
Economic Regulation v. “Suspect Class”
e. First Amendment Issues:
f. Criminal Procedure:
g. Enforcement of court decrees
1.Executive Branch: President and Governors
a. “Bully Pulpit”
b. Presentation of Legislation and Budgets
c. The Veto: Complete, Line and Pocket
d. Management of Agencies: “Creative
Tension”
2. Legislative Branch: Congress and the State
Legislatures
a. Law Making: Policy, Committees, and Partisanship
b. The Budget Process: Underpinning All
c. Investigation and Oversight Functions
d. Reapportionment: The importance of reapportionment
of congressional seats (which occurs once a decade)
cannot be understated. With the precision of lasers of
G.I.S., legislative maps are cast in concrete for ten
years (although recently federal courts have re-drawn
legislative maps and shifted the balance of power.
North Carolina cases)
Federal Courts
(1) Constitutional Powers: Marbury v. Madison. Enforcement
(2) Organization
District Courts, where trials occur and
(a) findings of fact are made (by Judge or Jury)
(b) the law is applied.
Circuit Courts of Appeal, where cases from the district courts are
reviewed to ensure that the law has been applied correctly, and the
US Supreme Court, which hears only cases involving constitutional
issues or federal questions. A case is heard only when four Justices (of
the nine) vote to grant a hearing.
Specialty Courts: Bankruptcy, Patent, Tax, Environment?
(3)
Jurisdiction: Tricky tests for multi-party
legislation
(a) Federal question
(b) Diversity (> $100K)
(4)
Functions: Trial v. Appellate
(a) findings of fact (by Judge or Jury
--the “trier-of-fact”)
(b) the law is applied.
(1) Constitutional Powers: State Constitutional Issues and the United
States Supreme Court
(2) Organization: Varied: Learn it.
(3) Jurisdiction
Dispute Resolution
1.
Alternative Dispute Resolution
a. Contract v. Statutory/Voluntary v. Accidental
b. Methods: Arbitration, Mediation; “Stakeholders” (NC
75 ft buffer rule); Private Judges
c. Limitations: Tactical and Practical
2.
Extra Judicial: The Press and Political Process
3.
Litigation: Civil Procedure
a. The Case: Rights, Remedies and Defenses
b. Jurisdiction: Long-arm statutes
c. Procedure
2. Litigation Process
a. Initiation of Action: Plaintiff
(1) Rights: Theory of Case
(2) Remedies: Money, Injunction;
Declaration of rights;
(3) Strategy of Jurisdiction/Venue
(4) Remedies during litigation:
preliminary injunction; receiver
b. Response:
(1) Challenge Legal Theory: Motion
to Dismiss (“So what?”) assumes
that the facts are true: eg Clean
Water Act Civil Suit
(a) Challenge Jurisdiction/Venue
(b) Direct Appeal from Dismissal
(2)
Challenge Facts: DENY key facts
Sets stage for Trial of Disputed Facts
c. Pre-Trial Process:
(1)
Discovery
(2)
ADR: Mediation or Arbitration
c. Pre-Trial Process: 70-80% resolved
(1)
Discovery:
(a) Interrogatories
(b) Depositions: lay witness
or Expert
(c) Motions to Inspect/Produce
(d) Request for Admissions
(2)
ADR: Mediation or Arbitration
(3) Motions
(a) To Dismiss
(b) Summary Judgment: No real
factual dispute
(c) Motions to exclude Evidence
d. Trial:
(1) Order
(2)
(3)
(4)
(5)
Trier-of-Fact: Judge or Jury
Evidence:
(a) Examination/Cross-Examination
(b) Non-Testimonial Evidence
Instructions to Jury
Argument
e. Appeal:
(1)
(2)
(3)
Effect: Vacate Trial Court
Remedies Pending Appeal
Remedies on Appeal:
(a) Reversal: whole or partial
(b) Return to court: factual determinations
(c) Remand with instructions to
apply law
Substantive and Procedural Law
Substantive (Policy) Administrative Law
Agency
Bailments
Commercial Paper
Constitutional Law
Contracts
Corporation Law
Criminal Law
Insurance
Partnerships
Personal Property
Real Property
Sales
Taxation
Torts
Trusts and Wills
Procedural (Method of Enforcement)
Administrative Procedure
Appellate Procedure
Civil Procedure
Criminal Procedure
Evidence
http://www.uncwil.edu/evs/module/classification.html
Substantive and Procedural Law
Substantive (Policy) Administrative Law
Agency
Bailments
Commercial Paper
Constitutional Law
Contracts
Corporation Law
Criminal Law
Insurance
Partnerships
Personal Property
Real Property
Sales
Taxation
Torts
Trusts and Wills
Procedural (Method of Enforcement)
Administrative Procedure
Appellate Procedure
Civil Procedure
Criminal Procedure
Evidence
http://www.uncwil.edu/evs/module/classification.html
LEGAL RESEARCH
A. Legal Research Sources
1.
Primary Sources: Laws and Cases: eg, THOMAS, States Web
2.
Secondary Legal Encsc: WASHLAW, FINDLAW, Legal Library of
Congress
B. General Research Tools:
1.
Government:
a.
FOIA/Government in the Sunshine/Public Records Acts
b.
Property Records
c.
Environmental Sources, (EPA Extensive Site, Agencies,
Permits, Records)
d.
Financial Records: Private and Public, including Campaign
2.
Private: EDF Scorecard, Industry Sites, NGO’s, Mapcruzin’
3.Legal Method:
a Precedent: The Prerogative of the Courts
(1) McPherson Buick- Greenman v.
Yuba Power Tools
(2) Nuisance/Trespass: Evolution
through and after the Industrial
Revolution
(3) Options: Sustain, Modify, Reverse,
Reverse in Part, Return for
Proceedings consistent, (S.Ct.
reversal website)
b.Interpreting Statutes: Lead Industries,
Industrial Dept. & Whitman (“ample
margin”) and Section 109 of the Clean Air
Act; Retroactivity: NEPACCO; Wetlands
Jurisdiction: 30 years of practice reversed:
Swannc
(1) Declarations of Policy: 33 USC 1251
(Clean Water Act)
(2) Definitions
Sec. 1251. - Congressional declaration of goals and policy(a)
Restoration and maintenance of chemical, physical and
biological integrity of Nation's waters; national goals for
achievement of objective The objective of this chapter is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. In order to achieve this
objective it is hereby declared that, consistent with the
provisions of this chapter –
(1) it is the national goal that the discharge of pollutants into
the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an interim
goal of water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for
recreation in and on the water be achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited;
Sec. 1251. - Congressional declaration of goals and policy (a)
Restoration and maintenance of chemical, physical and
biological integrity of Nation's waters; national goals for
achievement of objective The objective of this chapter is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. In order to achieve this
objective it is hereby declared that, consistent with the
provisions of this chapter –
(1) it is the national goal that the discharge of pollutants into
the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an interim
goal of water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for
recreation in and on the water be achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited;
Sec. 6903. - Definitions As used in this chapter: (1) The term
''Administrator'' means the Administrator of the Environmental
Protection Agency…..
(27) The term “solid waste” means any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but 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 permits under
section 1342 of title 33, or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954, as
amended (68 Stat. 923)
Sec. 6903. - Definitions As used in this chapter: (1) The term
''Administrator'' means the Administrator of the Environmental
Protection Agency…..
(27) The term “solid waste” means any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but 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 permits under
section 1342 of title 33, or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954, as
amended (68 Stat. 923)
Discretion and Agency Responsibility:
Corps of Engineers interpretation of Section 407 Rivers & Harbors
Sec. 407. - Deposit of refuse in navigable waters generally
It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be
thrown, discharged, or deposited either from or out of any ship, barge, or other floating
craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any
kind, any refuse matter of any kind or description whatever other than that flowing from
streets and sewers and passing therefrom in a liquid state, into any navigable water of the
United States, or into any tributary of any navigable water from which the same shall float
or be washed into such navigable water; and it shall not be lawful to deposit, or cause,
suffer, or procure to be deposited material of any kind in any place on the bank of any
navigable water, or on the bank of any tributary of any navigable water, where the same
shall be liable to be washed into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or may be impeded or
obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit
the operations in connection with the improvement of navigable waters or construction of
public works, considered necessary and proper by the United States officers supervising
such improvement or public work:
And provided further, That the Secretary of the Army, whenever in the judgment of the
Chief of Engineers anchorage and navigation will not be injured thereby, may permit the
deposit of any material above mentioned in navigable waters, within limits to be defined
and under conditions to be prescribed by him, provided application is made to him prior to
depositing such material; and whenever any permit is so granted the conditions thereof
shall be strictly complied with, and any violation thereof shall be unlawful.
Discretion: Implementation of Congressional Policy:
109 (a)(1)
The Administrator (A) within 30 days after the date of enactment of the
Clean Air Amendments of 1970, shall publish proposed regulations
prescribing a national primary ambient air quality standard and a
national secondary ambient air quality standard for each air
pollutant for which air quality criteria have been issued prior to such
date of enactment; and....
"(b)(1) National primary ambient air quality standards,
prescribed, under subsection (a) shall be ambient air quality
standards the attainment and maintenance of which in the judgment of
the Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the public
health. Such primary standards may be revised in the same manner
as promulgated."
See Whitman v. ATA
Chapter 3
Property Law Concepts
A.
Property Law: Real and Personal
1. Personal Property:
Equipment/chemicals/Vehicles;
Title Issues
2. Real Property:
Real Property
A.
Quality of Interest:
(1) Ownership Interests:
(a) Fee Simple
(b) Limited Interest: Life Estate,
remainder
(c) Multiple Ownership Interests:
(1) Tenancy in common (default);
(2) Joint tenancy -death-transferred to
other tenant;
(3) Marital-Community-tenancy by
entirety;
(4) Condo/PUD/Cooperative
www.thevillageatmayfaire.com/residences/condoFloors.cfm/
(3)
Possessory Interests
(a)
Easements:
(b)
1)
Appurtenant (Access) v. Easements in
Gross (utility)
2)
Conservation Easements: Statutory
enhancements via tax policy. Coastal
Land Trust; NH County Soil & Water
Conservation District
License To Hunt / Fish Use Property (Timber,
Crops)
(c) Leaseholds
(1)
Residential:
(a) Fixed/Periodic;
(b) Consumer Protection Issues:
Covenant of Quiet Enjoyment
and Habitability; Asbestos,
Toxics and Mold; Repairs
(c) Joint & Several Liabilities
(2)
Commercial:
(a) NNN (Triple net): Taxes,
Insurance, Repairs
(b) Disclosure; Liability for
Environmental Hazards
(c) ……
b. Classifications:
(1)
Public/ Private:
*Res Publicum,
*The Public Trust,
*The Commons;
*Navigable waters and
submerged lands;
* Wildlife
(2) Surface Rights
(a)
Alteration: construction/drainage
(b)
Water: Public Trust,
(c)
Minerals/Crops/Animals/Forests
(3) Subsurface Rights: Mahon v. PA Coal;
Sanderson
(4) Rights in Airspace: “to the Heavens”
(5) Private Planning Devices: subdivisions,
planned unit development (PUD), condo
(a)
Contract: Conditions, Covenants &
Restrictions
(b)
Common Areas
(c)
Non-Profit Owners’ Associations
c. Transfer:
RESEARCH TOOLS: Property Identifiers and Chain of
Title Exercises
(1) Contract/Deed:
(a) grant deeds (warranties) *
Quitclaim (red flag) as is condition
/divorce;
(b) Contract, escrow:
(2) Inherit- will or not? Probate
(3) Adverse possession
(4) Accretion/Avulsion
(5) Acquisition by state:
Condemnation/Eminent Domain* Public right
to condemn (Boomer)
Chapter 4
Torts: Adjusting Risks in
Society
Torts
Torts: Adjusting Risk in Society
1. General Concepts:
* Joint and Several Liability;
*
Sovereign Immunity;
* Common Examples: Industrial Accident, Auto
Accident, Nuisance (Boomer)
*
Enterprise Liability;
*
Class Actions;
*
Toxic Torts: ……
*FIRRAC
Facts
Issue
Rule
Rationale
Analysis
Conclusion
2.
Crossover Torts: Trespass, Nuisance and Strict
Liability for Environmental Hazards (blasting, UST’s
etc.)
Intent: Can be Intentional, Negligent or Strict
Liability
a.
Trespass and Protection of the Legal Estate:
b.
Nuisance as a Balancing Process: Boomer
And the Post-Industrial Action
c.
Nuisance and Trespass in the Atomic Age:
» Martin v. Reynolds Aluminum
» Bradles v. Am. Smelter
» …… v.Sanders
d.
Legislature Protection:
1. Liability Limits
2. Limiting Actions:
Bormanna v. Board of Supervis……
3.Types of Torts:
a. Intentional: Rare: Act is intended even if
harm is not
b. Negligence: Elements:
1. Duty: How to Establish? Mrs. Palsraf; law,
company policy, industry standards, contract,
reasonable person;
http://www.environmentaldefense.org/documents/37_May01%2Epdf
2. Breach of Duty;
3. Causation[use PALSGRAF, O’leary’s cow
(a) Legal (Proximate); Is the Harm Reasonably
Forseeable?
(b) Factual “But for….”;
4. Damages
(4) Damages
a. Economic
1. Personal Injuries
*Loss of Income
*Medical: meds, rehab, disability (PCB, Lead, arsenic); monitoring
Psychological: the human factor
2. Property Damage
*Loss of Profit
*Repairs & Cleanup Costs
*Value
*Analysis
*Professional Consultation
*Disruption
*Long-Short-Term Value impacts (stigma)
b. Non-Economic: Reputation, Pain and Suffering & Punitive
c. Caps on Damages:
1. Type of Tort: malpractice; nuclear
2. Type of Damages: Punitive
c.
Strict Liability
1. Ultra hazardous/Abnormally
Dangerous:
(a) Blasting
(b) UST
2. Products Liability: the Unreasonably Dangerous
Product: Section 402A Torts Restatement (2d)
(1) The product must be in a defective condition
when the defendant sells it.
(2) The defendant must normally be engaged in the
business of selling (or otherwise distributing) that product.
(3) The product must be unreasonably dangerous to the user or
consumer because of its defective condition (in most
states).
(4) The plaintiff must incur physical harm to self or property
by use or consumption of the product.
(5) The defective condition must be the proximate cause of
the injury or damage.
(6) The goods must not have been substantially changed from
the time the product was sold to the time the injury was
sustained.
4.
Defenses:
a.
The Non-Identical Twins:
(1) Comparative Negligence
(2) Contributory Negligence
b. Assumption of the Risk: No
Writing Required! Waivers often
used
c.
*Superceding Intervening Cause/
Break Chain of Causation
d. Unforeseeable Product Misuse:
modification, repair, maintenance
Chapter 5
Contract Law
1.General Principles:
A. The Basics: Freedom of contract, breach
& remedy; UCC
B. Addressing Liability Issues:
1. Business Forms (corp, LLC)
2. Contract Provisions (disclosure, etc)
3. Indemnity (insurance)
4. Statutory Requirements (disclosure)
2 Business Forms:
a. Joint & Several Liability,
(1) Default: Partnership: all general
partners
(2)
Limited P’ship: Manager liable as
General Partner;
Limited Partner’s liability = capital
contribution; BUT restrictions on
participation in management
b. Limited Liability:
(1) Corporation: e.g. Enron, M.
Stewart
Board of Directors: Overall Mgmt
Officers: Pres, CEO, CFO
Shareholders:
(2)
LLP (limited liabilty
Partnership) and
LLC:(limited liabilty
Company)
* Taxed as Partnership
* Managed by Operating
Agreement: manager
and Members
3.Contractual Risk Allocation: Environmental
Liability in Purchasing and Leasing Real
Property
a. Purchasing: Contract of Sale
1. Residential:
*Implied Warranties
and Express Warranties,
*Statutory Protections and
Disclosures (water supply, land
use, flood plain, past damage,
UST, radon, lead);
subdivision/PUD
*Indemnity
2. Commercial: Fewer Protections
a.
Disclosures,
b. Warranties And Indemnity
3. Rights & Remedies: loss of use, eg.
4. Disclaimers: AS_IS
5. Dispute Resolution Process
b. Leasing:
1. Residential: Covenant of Quiet
Enjoyment; statutory protections re
repairs/disclosures
2. Commercial: Negotiated
STATE OF NORTH CAROLINA
RESIDENTIAL PROPERTY DISCLOSURE STATEMENT
INSTRUCTIONS TO PROPERTY OWNERS
1. G.S. 47E requires owners of residential real estate (single-family homes and buildings with up to four dwelling units) to
Furnish purchasers a property disclosure statement. This form is the only one approved for this purpose. A disclosure
statement must be furnished in connection with the sale, exchange, option and sale under a lease with option to purchase
(unless the tenant is already occupying or intends to occupy the dwelling). A disclosure statement is not required for some
transactions, including the first sale of a dwelling which has never been inhabited and transactions of residential property
made pursuant to a lease with option to purchase where the lessee occupies or intends to occupy the dwelling. For a
complete list of exemptions, see G.S. 47E-2.
2. You must check one of the boxes for each of the 20 questions on the reverse side of this form.
a. If you check “Yes” for any question, you must describe the problem or attach a report from an engineer, contractor,
pest control operator or other expert or public agency describing it. If you attach a report, you will not be liable for any
inaccurate or incomplete information contained in it so long as you were not grossly negligent in obtaining or
transmitting the information.
b. If you check “No”, you are stating that you have no actual knowledge of any problem. If you check “No” and you
know there is a problem, you may be liable for making an intentional misstatement.
c. If you check “No Representation”, you have no duty to disclose the conditions or characteristics of the property,
even if you should have known of them.
* If you check “Yes” or “No” and something happens to the property to make your Statement incorrect or inaccurate (for
example, the roof begins to leak), you must promptly give the purchaser a corrected Statement or correct the problem.
3. If you are assisted in the sale of your property by a licensed real estate broker or salesperson, you are still responsible for
completing and delivering the Statement to the purchasers; and the broker or salesperson must disclose any material
facts about your property which they know or reasonably should know, regardless of your responses on the Statement.
4. You must give the completed Statement to the purchaser no later than the time the purchaser makes an offer to purchase
Your property. If you do not, the purchaser can, under certain conditions, cancel any resulting contract (See “Note to
Purchasers” below). You should give the purchaser a copy of the Statement containing your signature and keep a copy
signed by the purchaser for your records.
Note to Purchasers: If the owner does not give you a Residential Property Disclosure Statement by the time you make
your offer to purchase the property, you may under certain conditions cancel any resulting contract and be entitled to
a refund of any deposit monies you may have paid. To cancel the contract, you must personally deliver or mail
Written notice of your decision to cancel to the owner or the owner’s agent within three calendar days following your
receipt of theStatement, or three calendar days following the date of the contract, whichever occurs first. However, in
no event doesnthe Disclosure Act permit you to cancel a contract after settlement of the transaction or (in the case of
a sale or exchange) after you have occupied the property, whichever occurs first.
5. In the space below, type or print in ink the address of the property (sufficient to identify it) and your name. Then sign and
date.
Property Address:
Owner’s Name(s):
Owner(s) acknowledge having examined this Statement before signing and that all information is true and correct as of
the date signed.
Owner Signature: Date
Owner Signature: Date
Purchaser(s) acknowledge receipt of a copy of this disclosure statement; that they have examined it before signing; that they
understand the representations are made by the owner and not the owner’s agent(s) or subagent(s). Purchaser(s) are
encouraged to obtain their own
inspection from a licensed home inspector or other professional.
Purchaser Signature: Date
Purchaser Signature: Date
Regarding the property identified above, do you know of any problem (malfunction or defect) with any of the
following:
No
Yes*
No Representation
1. FOUNDATION, SLAB, FIREPLACES/CHIMNEYS, FLOORS, WINDOWS (INCLUDING STORM WINDOWS
AND SCREENS), DOORS, CEILINGS, INTERIOR AND EXTERIOR WALLS, ATTACHED GARAGE,
PATIO, DECK OR OTHER STRUCTURAL COMPONENTS including any modifications to them?
a. Siding is Masonry Wood Composition/Hardboard Vinyl Synthetic Stucco Other ________
b. Approximate age of structure? _______________
2. ROOF (leakage or other problem)?
a. Approximate age of roof covering? ____________
3. WATER SEEPAGE, LEAKAGE, DAMPNESS OR STANDING WATER in the basement, crawl space or slab?
NOTE: Mold Issues
4. ELECTRICAL SYSTEM (outlets, wiring, panel, switches, fixtures etc.)?
5. PLUMBING SYSTEM (pipes, fixtures, water heater, etc.)?
6. HEATING AND/OR AIR CONDITIONING?
a. Heat Source is: Furnace Heat Pump Baseboard Other__________
b. Cooling Source is: Central Forced Air Wall/Window Unit(s) Other__________
c. Fuel Source is: Electricity Natural Gas Propane Oil Other ________
7. WATER SUPPLY (including water quality, quantity and water pressure)?
a. Water supply is: City/County Community System Private Well Other _______________
b. Water pipes are: Copper Galvanized Plastic Other ________ Unknown
8. SEWER AND/OR SEPTIC SYSTEM?
a. Sewage disposal system is: Septic Tank Septic Tank with Pump Community System Connected to
City/County System City/County System available Straight pipe (wastewater does not go into a septic or other
sewer system [note: use of this type of system violates state law]) Other ___________
9. BUILT-IN APPLIANCES (RANGE/OVEN, ATTACHED MICROWAVE, HOOD/FAN, DISWASHER, DISPOSAL,
etc.)?
Also regarding the property identified above, including the lot, other improvements, and fixtures located thereon, do
you know of any:
10. PROBLEMS WITH PRESENT INFESTATION, OR DAMAGE FROM PAST INFESTATION OF WOOD
DESTROYING
INSECTS OR ORGANISMS which has not been repaired?
11. PROBLEMS WITH DRAINAGE, GRADING OR SOIL STABILITY OF LOT?
12. PROBLEMS WITH OTHER SYSTEMS AND FIXTURES: CENTRAL VACUUM, POOL, HOT TUB, SPA,
ATTIC FAN, EXHAUST FAN, CEILING FAN, SUMP PUMP, IRRIGATION SYSTEM, TV CABLE WIRING
OR SATELLITE DISH, OR OTHER SYSTEMS?
13. ROOM ADDITIONS OR OTHER STRUCTURAL CHANGES ?
14. ENVIRONMENTAL HAZARDS (substances, materials or products) including asbestos, formaldehyde, radon gas,
methane gas, lead-based paint, underground storage tank, or other hazardous or toxic material (whether buried or covered),
contaminated soil or water, or other environmental contamination)?
15. COMMERCIAL OR INDUSTRIAL NUISANCES (noise, odor, smoke, etc.) affecting the property?
16. VIOLATIONS OF BUILDING CODES, ZONING ORDINANCES, RESTRICTIVE COVENANTS OR OTHER
LAND-USE RESTRICTIONS?
17. UTILITY OR OTHER EASEMENTS, SHARED DRIVEWAYS, PARTY WALLS OR ENCROACHMENTS
FROM OR ON ADJACENT PROPERTY?
18. LAWSUITS, FORECLOSURES, BANKRUPTCY, TENANCIES, JUDGMENTS, TAX LIENS, PROPOSED
ASSESSMENTS,
MECHANICS’ LIENS, MATERIALMENS’ LIENS, OR NOTICE FROM ANY GOVERNMENTAL
AGENCY that could affect title to the property?
19. OWNERS’ ASSOCIATION OR “COMMON AREA” EXPENSES OR ASSESSMENTS?
20. FLOOD HAZARD or that the property is in a FEDERALLY-DESIGNATED FLOOD PLAIN?
* If you answered “Yes” to any of the above questions, please explain (Attach additional sheets, if necessary):
4.Indemnity: Shift responsibility: Private =
solvency issues
Insurance as Preventive;
a. Coverage issues: Definitions (same as
statutes!)
b. Types of Insurance: CGL; title
insurance; Enviro Prop
Ins
c. Insurability-Who can buy?
d. Indemnification-Pay for someone
else; INS or private (solvency!)
e. Exception/Exclusion to policy-Flood,
Nuclear attack, War
5. Basic Financing Concepts
a.Secured Transactions
1. Personal Property: Art. 9 UCC
2. Real Property: Deed of Trust/Mortgage
3. Remedies: Foreclosure; “Repo Man”
b. Bankruptcy
1. Chapter 7; dischargeability
2. Chapter 11 Workouts
Chapter 7
Federal/State Interaction
I. Commerce Clause: 2 questions: (1) what can the federal
government regulate? and (2) what can states regulate?
A. Interstate Commerce Clause: part of Constitution to
foster trade between states (continental free trade zone)
(1)
If interstate commerce, federal government
can get involved. School Gun case; US v.
Lopez 514 US 549
(2)
Most environmental legislation complies with
commerce clause because of the transitory
nature of pollutants. What might not?
USACE, “isolated wetlands” cases
B.
“Dormant Commerce Clause”: How far can states
go? Cannot unreasonably interefere with interstate
commerce
(1)
Mud Flaps cases from the 50’s
(2)
Environmental Cases: City of Philadelphia v.
NJ (ban)
-taxes, fees that discriminate also violate DCC
-Chem Waste Mgmt v. Hunt
(3)
The ‘balancing test”: Proctor & Gamble v.
Chicago (phosphate ban):
“Where the statute regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.”
C.
Congress May Authorize States to Act: Compactsagreements set by congress, etc. between states. eg,
Southeast Regional Compact: Solid Waste Cases
NB: NC as been expelled and is facing litigation to
recover over $100 million lost because of delays
Tahoe Regional Planning Agency
Water Agreements
II.
The Supremacy Clause:
Preemption-Laws of US Supreme Court under cases where state law conflicts
with federal law (p.169). Can be sword or shield: federal products liability
law
A. Express preemption by Congress: More common of late: Clean Air Act
Kinley Corp. v. Iowa Utilities (p 170) HLPSA; Clean Air Act and Clean
Water Act ANTI-pre-emption language CA motor vehicle exemption
B. Implied Preemption: Silkwood v. Kerr-McGee 464 US 238 (1984) (pp
172-173): pre-emption of common law or state statutory actions
C. Cases Where Dual Compliance’s Is Impossible: FAA cases (airport
hours); RCRA (p 173): hazewasst prohibition invalid, but SITING regs
which are “evenhanded” are upheld (but see Nuclear Regulatory Act)
D.
Cases Where State Law Interferes With Policy Objectives Of Federal
Law:
Fed Power Act (CA v. FERC, 495 US 490 (1990) CA stream
flow laws “would disturb and conflict with the balance embodied in that
federal agency determination.” (p 174)
III.
Federal Public Lands Laws: Property Clause: Article IV, Section 3 (p 175)
A.
The Power to Regulate Federal Lands:
Kleppe v. New Mexico (p 175): jurisdiction over wild animals on
federal land
B.
Basic Management Acts:
(1) Federal Land Management Act:
(2) National Forest Management Act
(3) NEPA
(4) ESA
(5) Surface Mining and Reclamation Act of 1977
(6) Coastal Zone Management Act
(7) Federal Wildlife Protection Acts
(8) Wilderness Protection Laws, eg, Wild and Scenic Rivers Act
Chapter 8
Agencies
Agencies: The Executive Touch
1. History and Nature of Agencies : What Powers do
Agencies Have? See the Statute and Definitions:
a. Agency formed by LEGISLATIVE BRANCH,
although often assisted by EXECUTIVE, then
managed by EXECUTIVE with oversight by judicial
branch and legislature
b. Professional staff –Key part of agency
c. Examples: *NC DENR ORGANIZATION CHART
Title Case
http://www.enr.state.nc.us/files/DENRochart.pdf California
Organization Chart;
*EPA ORGANIZATIONAL CHART:
http://www.epa.gov/epahome/organization.htm
EPA ORGANIZATIONAL CHART
http://www.epa.gov/epahome/organization.htm
2. Agency Functions: Discretion
a.
Programmatic Functions: Statute Specific:
(1)
Rule Making/Regulatory GuidanceProspective; (post war)* Rule making under
APA (pg. 188); Agency Philosophy
(a)
Types of Rules/Regulations:
1) Substantive rules- prescribed
law or policy legally
enforceable: Lead in gasoline;
airbags
2) Procedural rule- Forms,
Fees, Appeals.
3) Interpretive rules- agency
interpretation of regulation;
ways to get interpretive rule authority
general of state; Deference- to agency
(courts are not experts: agency is)
Discretion: Implementation of Congressional Policy:
109 (a)(1)
The Administrator (A) within 30 days after the date of enactment of the
Clean Air Amendments of 1970, shall publish proposed regulations
prescribing a national primary ambient air quality standard and a
national secondary ambient air quality standard for each air
pollutant for which air quality criteria have been issued prior to such
date of enactment; and....
"(b)(1) National primary ambient air quality standards,
prescribed, under subsection (a) shall be ambient air quality
standards the attainment and maintenance of which in the judgment of
the Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the public
health. Such primary standards may be revised in the same manner
as promulgated."
See Whitman v. ATA
JUDICIAL REVIEW: Wide playing field limited by: “arbitrary and capricious”,
(“arbitrary and capricious” means unreasonable or against law
(Balt G & E v. NRC p205)
Chevron v. NRDC (189): “Bubble Concept”:
Kelley v. EPA (192): Lender Liability exemption VOIDED
**WHITMAN v ATA: “ample margin of safety (Sec. 109(b)”
*Delegation Doctrine
*Cost as a Consideration in Environmental Regulations
Section 706 of the APA
It provides:
-all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning of the
terms of the agency.
The reviewing court staff shall:
1.
Compel agency action unlawfully withheld or unreasonably delayed
2.
Hold unlawful and set aside agency action, findings, and
conclusions found to be:
1.
2.
3.
4.
5.
6.
Not in accordance with law
Contrary to constitutional right
In excess of statutory jurisdiction
Without observance of procedure
Unsupported by substantial evidence
Unwarranted by the facts to the extent
(b) Process:
(1)
Formal Rule Making: published in
the federal register (or state equivalent);
interested people submit written data;
concise general statement of the bases and
purpose of the final rule; publication of
the rule not less than_____days before
rule becomes effective; Special interest
groups look at rules (pg. 195)
(2)
Rulemaking/Opinions/Guidance
Informal
(2)
Research and Education: “Bully
Pulpit”…..
(a)
Research, EPA and the Budget
Riders
(b)
Environmental Education: Trickle
Down
(c)
Technical Assistance
(1) Consumers/Public
(2) The Regulated Community
(3) Administration
(a)
Permit Process:
1. Types
a) General permits
b) Individual Devices
c) Exemptions
d) Conditions: time, climate,
cumulative effects
2.
Methodology:
(a) denial (conditional/partial),
(b) approval(conditional/partial);
(c) suspension, probation,
revocation, sanctions; TIME
LIMITS;
(d) Appeals and the Admin Law Judge
(c)
Issues in Enforcement
1) Objectives: Behavior
Modification:Consumers,Polluters,
Receptors
a) Political Context
b) Resource Issues
(2)
Civil Remedies
a) Objectives: Behavior Modification
b) Methodology: Outside Counsel?
c) Remedy: Injunction, Forfeiture,
specific performance, civil
penalties
d) Specialized Causes of Action:
Unfair competition; RICO (CA
Env. Law Sec. Article)
NORTH CAROLINA DENR
ENFORCEMENT
PYRAMID
RE
VP
OC
AT
T
R
CRIMINAL
CIVIL
ADMINISTRATIVE PENALTY
(NOV)
WARNING
(3)
Criminal Law & Procedure
a)
b)
c)
d)
e)
Introduction
1)
Exclusionary Rule
2)
Corporate Defendants (inc. officers)
3)
Parallel Prosecution
4)
Substantive Crimes: Property Crimes,
Viol. Of Environmental Statutes;
Government Integrity Statutes (Filing
False Documents)
Investigative Stages: warrants, wiretaps
Charging Process: Grand Jury/information
Trial Procedure: Proof
Sentencing Issues: Jail, Files, Creative
Probation: The “White Collar” Phenomenon
Chapter 9
NEPA/ESA/EPCRA
Informational Based Regulation: Public Vehicles And Private Data
Sources
A. NEPA’s and the SEPA’s
1.
Introduction: NEPA and the SEPA’s: contrast with
Phase 1 Review and other environmental data sources
a.
NEPA- 1970 [1]* Applies to any MAJOR
federal action, “significantly affecting the
human environment”.
(1)
Congressional response IN 1970
context – first response; Informational
statute-Prevent uninformed, not
unwise actions
(2)
Advisory: Does not require any
specific decision; provides
information not action
(3)
Policy Advisors: Council of
Environmental Quality: EPA
Director not cabinet level
b.Parallel State Universe: May be triggered
by public or private and may trigger
mitigation requirements, such as CA’s
CEQA
2. Purpose: Section 101:
“1.
2.
3.
4.
5.
6.
Fulfill the responsibilities of each generation as trustee of the
environment for succeeding generations.
Assure for all Americans safe, healthful, productive, and
aesthetically and culturally pleasing surroundings.
attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable
and unintended consequences.
Preserve important historic, cultural and natural aspects of our
national heritage, and maintain whenever possible, an
environment which supports diversity and variety of individual
choice.
Achieve a balance between population and resource use which
will permit high standards of living and a wide sharing of
lives amenities. (EPA ADMIN in 1972 said “lifestyle must be
altered”)
Enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources. “
3. Mechanism:
a. Triggers (Section 102): Calvert Cliffs Coord
Comm v. AEC: AEC must comply with NEPA):
(1) If legislation has environmental
impact
(2) If MAJOR Federal activity, or the
Federal Government funds or
plans an activity which
SIGNIFICANTLY effects the HUMAN
environment
Examples: Federal Roads and
Mason’s Inlet
See Page 245
b.
Methodology: Initial Review:
(1) Designation of Lead Agency,
(2) The ROD,
(3) EA Environmental Assessment (preliminary
assessment) if full EIS needed;
(4) FONSI- Mitigation Finding of no significant
impact conditions (most actions);
(5) Scope/Timing of the EIS (environmental impact
statement); if effects of all events are cumulative
(may need EIS)
(6) Revisions to EIS/EIR: More Mesa species
c. Contents of Environmental Impact statement: Key Issue: Were
All Environmental Impacts Considered Thoroughly?
(1) Alternatives that require discussion:
(2) Range of alternatives- (must be reasonable) (no project
alternatives)
(3) All environmental effects (all effects) (runoff, water quality,
air quality)
(4) Mitigation- mitigation measures; regulation to dedication of
fee (Nollan v. California Coastal Commission; and Dolan v.
Tigard Or)
(5) Cost/Benefit analysis (formal/informal): Relationship
between short term local uses and environment /
Maintenance and enhancement of long term productivity.
3.Standard of Review- was agency action
supported by substantial evidence or was it
“arbitrary and capricious”?
a. Purposes:
(1) Litigation directed at triggers by
applicant
(2) Scope and contents (by opponents)
b. Remedies: return to agency (delay)
B.
EPCRA: The Community Right to
Know Act: Problem: Materials
moving throughout the system were
unknown to Fire/Safety personnel;
Terrorism concerns after 9/11
1. Public Web Access: EPA
Resources: *TRI & Envirofacts
*National Security Issues
Links to Forms
2. *ED’s Scorecard
EPA ENVIROFACTS:
http://www.epa.gov/enviro/index_java.html
EPA TOXIC RELEASE INVENTORY:
http://www.epa.gov/tri
ENVIRONMENTAL DEFENSE
SCORECARD:
http://www.scorecard.org
C.
D.
E.
Freedom of Information Act &
Sunshine Laws
Data Exercise
Labeling Laws: Food, Pesticides. Is
information adequate? Do Users
Comply?
Links to Forms
Real Estate Disclosure Laws:
Hazwaste, violations, Hazards, Utility
Issues
ENDANGERED SPECIES ACT
(applies to all actions public or private)
• Who owns species? Who should live? Is
extinction part of the process?
• Historical Basis: 1916 National Park
Service Act; 1966 and 1969 authorization to
purchase habitat
• Passed initially in 1973
• Some see as “veto” over any action
• TVA v. Hill (USSCt 1978):
• snail darter and Tellico dam– first major
interpretation:
• (1) federally funded or authorized projects must
“insure” species protection;
• (2) project in “pipeline” is covered
• “’…to insure that actions authorized, funded, or
carried out by them do not jeopardize the
continued existence’ of and endangered species or
result in the destruction or modification or habitat
of such species….This language admits of no
exception.”
GOALS OF USDA ESA PROGRAM¦
1. Preventing extinction.¦
2. Recovering species that are listed.¦
3. Making listing species unnecessary.
4. ¦ Providing quality customer service to Federal,
State, and local governments and private
individuals to assist them in conserving
endangered species while meeting their social
and economic objectives.
http://endangered.fws.gov/landowner/landown.pdf
• Listing/Delisting: Key provisions of section 4
Secretary of Interior shall determine if species is in
danger or threatened of species [NOTE: another
agency besides EPA is involved]. TEST:
a. Present or threatened distraction/modification of
habitat/range
b. Over utilization for commercial, recreation, science,
and education purposes
c. Disease or perdition may or may not have to do with
human activity.
d. Inadequacy or existing regulatory mechanisms
e. Other natural/man made factors effecting its
existence
• Debate over listing/delisting
• US Fish and Wildlife Service administers
Decisionmaking:
(1) Secretary of Interior, “solely on the basis
(2)
of the best scientific and commercial data
available to him after conducting a review of
the status of the species.” (Sec. 7)
Review and Override: 1978 Amendments
(after TVA) created, “God Committee”;
Exemptions:
(a) the federal project is of regional or
national significance;
(b) there is no, “reasonable and prudent”
alternative; and
(c) the proposed project clearly outweighs the
alternatives.
NOTE: Tellico NOT overridden
Section 7: Federal Agencies
• “’…to insure that actions authorized, funded, or carried
out by them do not jeopardize the continued existence’ of
and endangered species or result in the destruction or
modification or habitat of such species, which is
determined by the Secretary, after consultation as
appropriate with the affected states’….This language
admits of no exception.”
Section 9: The “Takings” Prohibition
16 U.S.C. Sec. 1532(19):
“The term ''take'' means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.”
50 CFR Sec. 17.3
“Harm in the definition of "take" in the Act means an act which actually kills
or injures wildlife. Such act may include significant habitat modification or
degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or
sheltering.”
* Babbitt Vs. Sweet Home (225):
Red Cockaded Woodpecker
*USSCt upheld Sec. 17.3 definition, on three grounds: (a) dictionary
definition of harm to wildlife, “harm” could be indirect as well as “direct”,
(b) furthers purposes of Sec. 2 of the Act, “ecosystems upon which
endangered species and threatened specides depend may be conserved.”
(Sec. 2), and (c) Congress in 1982 requires permits for, “incidental taking”
QUERY: Would a more limited interpretation also have been found,
“reasonable”?
“The Endangered Species Act, with some exceptions, prohibits activities
affecting threatened and endangered species unless authorized by a permit from
the U.S. Fish and Wildlife Service (Service) or the National Oceanic and
Atmospheric Administrations—Fisheries. “
“Your proposed activity may also require a state permit. You should contact your
state wildlife agencies for additional information. Getting a Service permit is
contingent upon obtaining any required state permit.”
“Types of permits
Permits for native endangered or threatened species, issued by the Endangered
Species program, are of three basic types:
enhancement of survival permits, associated with Safe Harbor agreements and
Candidate Conservation Agreements with Assurances,
recovery and interstate commerce permits, associated with activities such as
captive breeding and research to further the recovery of a species, and
incidental take permits, associated with Habitat Conservation plans. “
http://endangered.fws.gov/permits/index.html
COOPERATIVE PROGRAMS WITH
LANDOWNERS:
http://endangered.fws.gov/landowner/landown.pdf
Enhancing Wildlife “Before entering into a Safe Harbor
Agreement, we must make a finding that the covered
endangered or threatened species will receive a “net
conservation benefit” from the Agreement’s management
actions. Examples of such benefits include: ¦
*
*
*
*
*
*
*
reduction of habitat fragmentation;
maintenance, restoration, or enhancement of existing
habitats;
increase in habitat connectivity;
maintenance or increase of population numbers or
distribution;
reduction of the effects of catastrophic events;
establishment of buffers for protected areas; and ¦
areas to test and develop new management
http://endangered.fws.gov/recovery/harborqa.pdf
PARTNERSHIPS SAVE
SPECIES
http://www.backfromthebrink.org/inthespotlight.cfm?subnav=meetthelandowners
Chapter 10
Air Resources
Ozone non-attainment Areas
Ozone Non-Attainment: 1 hour
“
“Changes in air quality concentrations do not always match changes in
nationwide emissions. There are several reasons for this. First, most monitors
are located in urban areas so air quality is most likely to track changes in
urban air emissions rather than in total emissions. Second, not all of the
principal pollutants are emitted directly to the air. Ozone and many particles
are formed after directly emitted gases react chemically to form them. Third,
the amount of some pollutants measured at monitoring locations depends
on the chemical reactions that occur in the atmosphere during the time it
takes the pollutant to travel from its source to the monitoring station.
Fourth, emissions from some sources are estimated rather than measured.
Finally, weather conditions often contribute to the formation and buildup
of pollutants in the ambient air. For example, peak ozone concentrations
typically occur during hot, dry, stagnant summertime conditions.”
1. Federal Role:
A.
Setting Air Quality and Emissions Standards: EPA sets national
standards in several categories, including:
(1)
National Ambient Air Quality Standards: EPA set healthbased National Ambient Air Quality Standards, starting in 1972, per
Section 109 of the Clean Air Act:
“(b)(1) National primary ambient air quality standards,
prescribed,under subsection (a) shall be ambient air quality standards
the attainment and maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an adequate
margin of safety, are requisite to protect the public health. Such
primary standards may be revised in the same manner as
promulgated.”[i]
Secondary standards must also be set to protective of plants and animals.
((Sec. 109 (b)(2)). The standards must be reviewed and adjusted to meet goals
every five years.
CRITERIA POLLUTANT STANDARD
Carbon Monoxide (CO) 8-hour Average 9 ppm(10
mg/m3)Primary 1-hour Average35 ppm(40 mg/m3)Primary
Nitrogen Dioxide (NO2) Annual Arithmetic Mean 0.053 ppm(100
µg/m3)Primary & Secondary
Ozone (O3) 1-hour Average0.12 ppm(235 µg/m3)Primary &
Secondary 8-hour Average 0.08 ppm(157 µg/m3)Primary &
Secondary
Lead (Pb) Quarterly Average 1.5 µg/m3 Primary & Secondary
Particulate (PM 10)
Particles with diameters of 10 micrometers or
less Annual Arithmetic Mean50 µg/m3 Primary &
Secondary 24-hour Average150 µg/m3 Primary & Secondary
Particulate (PM 2.5)
Particles with diameters of 2.5 micrometers or
less Annual Arithmetic Mean 15 µg/m3 Primary &
Secondary 24-hour Average65 µg/m3 Primary & Secondary
Sulfur Dioxide (SO2) Annual Arithmetic Mean0.030 ppm(80
µg/m3)Primary 24-hour Average0.14 ppm(365
µg/m3)Primary 3-hour Average0.50 ppm(1300
µg/m3)Secondary
Ozone: Non-attainment areas for ozone are
widespread. Because of health concerns, EPA and
others proposed a change from a 1-hour standard
to and 8 hour standard to better manage longerterm exposure. This change meant more areas
would be in non-compliance and a pitched battle
over the standard spilled over from the Clinton
Administration to the Bush Administration.
Supreme Court heard ATA v. Whitman in 2001;
the Bush Administration did adopt the Clinton 8hour standard. (68 Fed Reg 614 Jan 6 2003)
Fine Particulates: At one time environmental
engineers elected to concentrate on large
particulates (PM10) because it was thought in the
70’s that health concerns were minimal for smaller
particles and the energy crisis made diesel engines
(a major source of fine particulates) attractive.
However, a nearly accidental study occasioned by
a college student’s incomplete term paper led to an
epidemiological discovery of the harm of fine
particulates (PM2.5) and EPA began the regulatory
process which led to the second standard upheld
in Whitman v. ATA. The standard now has been
finalized__ [Wall St. Journal 11/25/96 Page___)
(2)
National Emissions Standards for
Hazardous Air Pollutants (NESHAPS)
technology-based emissions standards for
hazardous/toxic air pollutants.
WHAT HAS EPA DONE TO REDUCE AIR TOXICS?
The Pre-1990 “Risk-Only” Approach Prior to 1990, the Clean Air Act
directed EPA to regulate toxic air pollutants based on the risks each
pollutant posed to human health. Specifically, the Act directed EPA
to:[(1)] Identify all pollutants that caused “serious and irreversible illness
or death.” [and](2) Develop standards to reduce emissions of these
pollutants to levels that provided an “ample margin of safety” for the
public. While attempting to control air toxics during the 1970s and
1980s, EPA became involved in many legal, scientific, and policy
debates over which pollutants to regulate and how stringently to regulate
them. Debates focused on risk assessment methods and assumptions, the
amount of health risk data needed to justify regulation, analyses of the
costs to industry and benefits to human health and the environment, and
decisions.
The 1990 Clean Air Act Amendments:
A “Technology First, Then Risk” Approach Realizing the limitations of a
chemical-by-chemical decision framework based solely on risk, and
acknowledging the gaps in scientific and analytical information, Congress
adopted a new strategy in 1990, when the Clean Air Act was amended.
Specifically, Congress revised Section 112 of the Clean Air Act to mandate a
more practical approach to reducing emissions of toxic air pollutants.
This approach has two components. In the first phase, EPA develops
regulations—MACT standards—requiring sources to meet specific emissions
limits that are based on emissions levels already being achieved by many similar
sources in the country. Even in its earliest stages, this new “technology-based”
approach clearly produced real, measurable reductions. In the second phase, EPA
applies a risk-based approach to assess how these technology-based emissions
limits are reducing health and environmental risks. Based on this assessment,
EPA may implement additional standards to address any significant remaining, or
residual, health or environmental risks. EPA completed development of its
strategy for addressing residual risks from air toxics in March of 1999
http://www.epa.gov/oar/oaqps/takingtoxics/p1.html#8
(3)
New Source Performance Standards
(NSPS): Emissions standards for all
categories of stationary sources
“Section 111 of the Clean Air Act, "Standards of Performance of New Stationary Sources," requires EPA to
establish federal emission standards for source categories which cause or contribute significantly to air
pollution. These standards are intended to promote use of the best air pollution control technologies, taking
into account the cost of such technology and any other non-air quality, health, and environmental impact and
energy requirements. These standards apply to sources which have been constructed or modified since the
proposal of the standard. Since December 23, 1971, the Administrator has promulgated nearly 75 standards.
These standards can be found in the Code of Federal Regulations at Title 40 (Protection of Environment),
Part 60 (Standards of Performance for New Stationary Sources). For an electronic compilation of the
standards, check out the Government Printing Office's e-CFR Database.
Generally, state and local air pollution control agencies are responsible for implementation, compliance
assistance, and enforcement of the new source performance standards (NSPS). EPA retains concurrent
enforcement authority and is also available to provide technical assistance when a state or local agency seeks
help. EPA also retains a few of the NSPS responsibilities -- such as the ability to approve alternative test
methods -- to maintain a minimum level of national consistency.”
http://www.epa.gov/region07/programs/artd/air/nsps/nsps.htm/
(4) Mobile Source Emissions Standards:
Motor Vehicles, trucks, busses, off-road
vehicles and equipment, marine and
aircraft sources.
B. Research: Budget Issues; Technical
Assistance, Subventions
C. Oversight of State Administration:
Carrot/Stick Approach: Sanctions
D. EPA Referee Function:
(1)
The NOx-SIP Call:
(2)
APCD of Jefferson County,
Kentucky v. EPA, [739 F.2d 1071
(6th Cir. 1984)]
F. Enforcement:
(1)
(2)
(3)
(4)
(5)
(6)
Permit Systems:
Administrative Orders:
Inspections:
Civil Remedies:
Criminal Penalties:
Citizens Suits:
II. States:
A. Administer programs;
B. Create SIP
C. Set emissions standards and adopt
control measures to meet SIP;
D. Review new and existing sources;
provide enforcement mechanisms;
REQUIREMENTS FOR SIP’S
The SIP’s must have, for each air quality control region (or part thereof):
(1) Specified control measures, such as, “enforceable emission
limitations and other control measures, means, or techniques
(including economic incentives such as fees, marketable permits,
and auctions of emissions rights), as well as schedules and
timetables for compliance, including specific additional requirements
for non-attainment areas
(2) Monitoring, Sampling and Data Analysis adequate to the job, and
must share it all with EPA
(3) Enforcement Mechanisms “necessary to assure that national ambient
air quality standards are achieved”, such as [fee based] permit
systems which prohibit emissions in such quantities that would
jeopardize another state’s ability to meet standards (and certain
international standards);
(4) Adequate Personnel and Funding, including any required to supervise
regional or local air pollution authorities;
(5) Contingency Plans and ongoing revisions to the SIP
(6) Requirements for consultation with local and regional political
subdivisions. Clean Air Act, Section 110
III. Multi-Jurisdictional Efforts
A. Intrastate: BAAPCD/South Coast
Air Quality Monitoring District
B.
Interstate: New Jersey-New York –
Connecticut http://www.iec-nynjct.org/aboutus.htm/
IV. Management of Air Quality
A. Managing Stationary Sources
(1) CONCEPTS
*
Quantifying Cumulative Emissions:
*
*
*
*
*
Bubble Concept and “netting”,
“Banking”
Offsets:
Fugitive Emissions: dust
Indirect Sources: shopping centers, etc.
Attainment Areas (PSD)
Permits
Technology:
MACT
LAER
RACT
BACT
Offsets
Existing
Sources
x(NSR)
New
Sources
x
Non-Attainment Areas)
NESHAPS (toxics)
Existing New
Sources
Sources
x (NSR)
x
x
x
x
x
x(NSR)
x
x (NSR)
x
(2) States Must Now Require Permits For
New And Significantly Modified
Sources Of Air Emissions:
*
New or modified Sources subject to
PSD Rules
*
New Major Sources (>100 tons)
*
New or Modified Sources in NonAttainment Areas
*
Sources of Hazardous Air
Pollutants
*
Power Plants
*
EPA Determination
(a)
Pre-1990 Sources: To Retrofit or not? NSR Rules
(b)
NOx/SIP Call:
North Carolina position: Powerplants and Neighbors
(c)
“Clear Skies” and New Source Review:
(1)
(2)
(3)
Standards: Attainment/Non-Attainment; Class of Pollutant;
Baseline Actual Emissions; Class of Source: Incinerators,
plants; fugitive emissions; agricultural operations (lagoons,
spraying; burning); PALS (10-yr w/ re-opener: 1 pollutant);
“Clean Units” (BACT/LAER)
Techniques: Permit Conditions, including
variation in production and meteorological
conditions, in-stack monitoring; equipment
specs; upset-breakdown rules; inspections
Standards for SO2, mercury plus market
mechanisms extend compliance years
Critique of Clear Skies:
http://www.sierraclub.org/cleanair/clear_skies.asp
http://nrdc.org/air/pollution/qbushplan.asp
http://nrdc.org/media/pressreleases/040227.asp
(d)
(e)
Indirect Source Review: Interface with
land-use issues
Regulatory and Enforcement
Mechanisms:
(1) Permit Procedure/review
(2) Enforcement programs (BAAPCD
(civil) v SCAQMD (crim))
(3) EPA Review of States: NOx-SIP;
Jefferson Co. APCD
(4) Emissions Trading: SO2 and
“Clear Skies”
Non-Attainment Area Permit Process
Attainment Area Permit Process
SCAQMD PERMIT PROCESS
A. Description of the business and industrial process, including the types of all material
used and the products manufactured, as well as wastes generated. This description
should also include the type of air pollution control equipment by design, size, or its
anticipated degree of control. Applicants should also describe the types of fuels to be
used, their rates of use, and the sulfur and nitrogen content of the fuels;
B. Detailed description of the equipment to be used, including the size and type for the entire
unit or major part of each unit. This description should include all auxiliary equipment
and the location, size, and shape of all features which may influence the production,
collection, or control of air contaminants. If the equipment uses burners, the description
should specificy the type, size, and maximum capacity of each burner;
C. Identification numbers of existing air district permits, if any;
D. Operating schedule for emission sources by hours per day, days per week, and weeks per
year, including preventive maintenance schedules; and
E. Description of how the developer-applicant intends to comply with the requirements of
the California Environmental Quality Act (CEQA). Typically, a final Environmental
Impact Report (EIR) is needed before the air district can determine application
completeness.
Procedures.
Each air district has adopted specific procedures for evaluating permit applications. In general, the local air district
staff first reviewed the application to determine whether it contains complete and accurate information. If not, the staff
returns it to the developer-applicant specifying what additional information must be provided. When the air district
accepts the application as complete, the staff evaluates it for conformance with the New Source Review Rule, district,
state and national emissions limitations, and national and state ambient air quality standards.
The staff calculates the emissions from the new source and any offsetting source using the maximum design capacity of
the new source and the actual operating conditions averaged over three years preceding the date of the application to
determing the existing source’s emissions. The air district requires applicants to calculate maximum expected quarterly
emissions from the new source. For modified sources, the air districts compare the emissions of the proposed source
after modification to the emissions of the existing source to determine the net increases. The air district credits all
banked reductions in emissions associated with the existing source to the new source and determines the net increase in
emissions from the modifications.
In addition to evaluating criteria pollutant emissions from the proposed source, the air districts will also evaluate
whether there exists potential to emit non-criteria pollutant emissions or toxic air contaminants from the proposed
facility.
The air districts’ evaluation of non-criteria pollutants will include estimating the amount and composition of
identifiable toxic compound emissions that originate from the source. These estimates are used to predict public
exposure to specified toxic compounds. When these predictions are used along with population density and health data,
they can serve as the basis for an assessment of risk to public health. The determination of what is an acceptable public
health risk from exposure to non-criteria air pollutants is normally made at the local government level.
In addition to air districts’ evaluation of non-criteria pollutants, the ARB has established a process under state law for
identifying toxic air contaminants and developing control measures. Toxic air contaminant regulations developed
pursuant to this process are adopted and enforced by air districts. These regulations must be as effective as control
measures developed by the ARB.
After completing the evaluation, the air pollution control officer (APCO) decides whether to approve, conditionally
approve, or disapprove an Authority to Construct. The APCO writes a preliminary decision and publishes a notice
providing 30 days for the ARB, the U.S. EPA, and the public to submit written comments about the preliminary
decision. The APCO must consider all written comments and make a final decision within 180 days after accepting an
application as complete.
The air district may take about four to six months to review an application for an Authority to Construct.
MOBILE EMISSIONS
SOURCES
Honda 600 meets Calif. ’75-’76
Standards
“Each of today's cars produces 60 to 80 percent less pollution than cars in the 1960s.
More people are using mass transit. Leaded gas is being phased out, resulting in
dramatic declines in air levels of lead, a very toxic chemical. Despite this progress,
most types of air pollution from mobile sources have not improved significantly.
At
present the United States:
Motor vehicles are responsible for up to half of the smog-forming VOCs and
nitrogen oxides (NOx).
Motor vehicles release more than 50 percent of the hazardous air pollutants.
Motor vehicles release up to 90 percent of the carbon monoxide found in urban
air.
What went wrong? More people are driving more cars more miles on more trips. In
1970, Americans traveled 1 trillion miles in motor vehicles, and we are expected to
drive 4 trillion miles each year by 2000. Many people live far from where they work; in
many areas, buses, subways, and commuter trains are not available. Also, most people
still drive to work alone, even when van pools, HOV (high-occupancy vehicle) lanes and
other alternatives to one-person-per-car commuting are available. Buses and trucks,
which produce a lot of pollution, haven't had to clean up their engines and exhaust
systems as much as cars. Auto fuel has become more polluting. As lead was being
phased out, gasoline refiners changed gasoline formulas to make up for octane loss, and
the changes made gasoline more likely to release smog-forming VOC vapors into the
air.
Although cars have had pollution control devices since the 1970s, the devices only had
to work for 50,000 miles, while a car in the United States is usually driven for 100,000
miles. ‘
Source: EPA http://www.epa.gov/oar/oaqps/peg_caa/pegcaa04.html
Mobile Sources:
(1) Design: California Exception
(2) Techniques:
(a)
Emissions Standards & Equipment
Specifications: SUV’s, ZEV’s and
LEV’s;
(b)
Energy Sources: more fossil fuels and
the implications, DOE funding for fuel
cell research; gasohol and the MTBE
debacle;
(c)
Systemic Transportation Issues: Land
use patterns, highway funding, people
moving, incentives, diamond lanes and
carpools, block vans & cabs
STRAT0SPHERIC OZONE:
MONTREAL PROTOCOL
Most ozone-depleting substances have been
banned (REGS), and the black-market in Freon
and pre-ban refrigerants is declining. The U.S.
regulations include an outright ban because of the
effects. The latest reviews by the Treaty
organization verify positive results: see the
Unep/Wmo, "Scientific Assessment Of Ozone
Depletion: 2002" prepared by The Scientific
Assessment Panel Of The Montreal Protocol On
Substances That Deplete The Ozone Layer,
http://www.epa.gov/ozone/science/execsummsaod2002.pdf
GLOBAL WARMING
“Greenhouse gases are accumulating in Earth’s atmosphere as a result of human
activities, causing surface air temperatures and subsurface ocean temperatures to rise.
Temperatures are, in fact, rising. The changes observed over the last several decades are
likely mostly due to human activities, but we cannot rule out that some significant part of
these changes is also a reflection of natural variability. Human-induced warming and
associated sea level rises are expected to continue through the 21st century…Because
there is considerable uncertainty in current understanding of how the climate system
varies naturally and reacts to emissions of greenhouse gases and aerosols, current
estimates of the magnitude of future warming should be regarded as tentative and subject
to future adjustments (either upward or downward)…
“Making progress in reducing the large uncertainties in projections of future climate will
require addressing a number of fundamental scientific questions relating to the buildup of
greenhouse gases in the atmosphere and the behavior of the climate system…In addition,
the research enterprise dealing with environmental change and the interactions of human
society with the environment must be enhanced…An effective strategy for advancing the
understanding of climate change also will require (1) a global observing system in
support of long-term climate monitoring and prediction, (2) concentration on large-scale
modeling through increased, dedicated supercomputing and human resources, and (3)
efforts to ensure that climate research is supported and managed to ensure innovation,
effectiveness, and efficiency.”
http://www.climatescience.gov/Library/stratplan2003/vision/actions.htm
:
Indoor Air Pollution
“There are many sources of indoor air pollution in any
home. These include combustion sources such as oil, gas,
kerosene, coal, wood, and tobacco products; building
materials and furnishings as diverse as deteriorated,
asbestos-containing insulation, wet or damp carpet, and
cabinetry or furniture made of certain pressed wood
products; products for household cleaning and
maintenance, personal care, or hobbies; central heating and
cooling systems and humidification devices; and outdoor
sources such as radon, pesticides, and outdoor air
pollution…..The relative importance of any single source
depends on how much of a given pollutant it emits and
how hazardous those emissions are.”
http://www.epa.gov/iaq/ia-intro.html
"Twenty-two thousand people die from lung
cancer each year in the United States from
exposure to indoor radon". "Yet Americans
could help prevent these deaths and protect
their families by testing their homes for
radon as soon as possible."
Christine
Todd Whitman, Former EPA Administrator
http://www.epa.gov/radon/
Chapter 11
REGULATING WATER RESOURCES
History:
Public Trust and Surface Water Concepts
(Cadillac Desert).
Groundwater rules.
1899 Rivers & Harbors Act
State Action: CA Model, NC Model.
National Water Supplies
Sec. 1251. - Congressional declaration of goals and policy
(a) Restoration and maintenance of chemical, physical and
biological integrity of Nation's waters; national goals
for achievement of objective The objective of this
chapter is to restore and maintain the chemical,
physical, and biological integrity of the Nation's
waters. In order to achieve this objective it is hereby
declared that, consistent with the provisions of this
chapter – (1) it is the national goal that the discharge
of pollutants into the navigable waters be eliminated
by 1985; (2) it is the national goal that wherever
attainable, an interim goal of water quality which
provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in
and on the water be achieved by July 1, 1983; (3) it is
the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited;
Sec. 1362. - Definitions
Except as otherwise specifically provided, when used in this chapter:
(1) ….
(4) The term ''municipality'' means a city, town, borough, county, parish, district, association, or other
public body created by or pursuant to State law and having jurisdiction over disposal of sewage,
industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a
designated and approved management agency under section 1288 of this title.
(5) The term ''person'' means an individual, corporation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any interstate body.
(6) The term ''pollutant'' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water. This term does not mean
(A)''sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed
Forces'' within the meaning of section 1322 of this title; or
(B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or
water derived in association with oil or gas production and disposed of in a well, if the well used
either to facilitate production or for disposal purposes is approved by authority of the State in which
the well is located, and if such State determines that such injection or disposal will not result in the
degradation of ground or surface water resources.
(7) The term ''navigable waters'' means the waters of the United States, including the territorial seas.
(8) The term ''territorial seas'' means the belt of the seas measured from the line of ordinary low water
along that portion of the coast which is in direct contact with the open sea and the line marking the
seaward limit of inland waters, and extending seaward a distance of three miles.
(9) The term ''contiguous zone'' means the entire zone established or to be established by the United States
under article 24 of the Convention of the Territorial Sea and the Contiguous Zone.
(10)
(11)
(12)
(13)
(11)
(12)
(13)
(14)
(15)
(16)
(19)
(14)
(15)
(16)
(19)
The term ''ocean'' means any portion of the high seas beyond the contiguous zone.
The term ''effluent limitation'' means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including
schedules of compliance.
The term “discharge of pollutants” each means
(A) any addition of any pollutant to navigable waters from any point source,
(B) any addition of any pollutant to the waters of the continguous zone or the ocean from any point source other than a vessel or other floating craft.
The term ''toxic pollutant'' means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure,
ingestion, inhalation or assimilation into any organism, either directly from the (10) The term ''ocean'' means any portion of the high seas beyond the
contiguous zone.
The term ''effluent limitation'' means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including
schedules of compliance.
The term “discharge of pollutants” each means
(A) any addition of any pollutant to navigable waters from any point source,
(B) any addition of any pollutant to the waters of the continguous zone or the ocean from any point source other than a vessel or other floating craft.
The term ''toxic pollutant'' means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure,
ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of
information available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including
malfunctions in reproduction) or physical deformations, in such organisms or their offspring.
The term ''point source'' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be
discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
The term ''biological monitoring'' shall mean the determination of the effects on aquatic life, including accumulation of pollutants in tissue, in receiving waters
due to the discharge of pollutants
(A) by techniques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the
physical, chemical, and biological characteristics of the effluent, and
(B) at appropriate frequencies and locations.
The term “discharge” when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.
The term “pollution” means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.
environment or indirectly by ingestion through food chains, will, on the basis of information available to the Administrator, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or
their offspring.
The term ''point source'' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be
discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
The term ''biological monitoring'' shall mean the determination of the effects on aquatic life, including accumulation of pollutants in tissue, in receiving waters
due to the discharge of pollutants
(A) by techniques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the
physical, chemical, and biological characteristics of the effluent, and
(B) at appropriate frequencies and locations.
The term “discharge” when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.
The term “pollution” means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.
1. Design of the Clean Water Act:
A. Key Concepts:
– Non-Degradation;
– Section 303/TMDL Carrying Capacity;
– Inter Basin Transfer: state and interstate
issues;
– Watersheds and Aquifers [CHART]
– No Right to Pollute (Driscoll v. Adams)
B. Federal-state Partnerships:
(federalism/creativity)
(1) Feds:
a. Set (1) technology-based discharge
standards for point sources; and (2)
standards to address non-point sources;
b. Research Funding and technical assistance,
c. Review of State programs and enforcement
issues; criteria for state plans:
d. Resolve disputes among jurisdictions
(Ark. v. Ok.)Virginia and North Carolina
(Roanoke River)(Contrast CA vs. Nevada
& Arizona)
(2) States:
(a) Administer programs through combinations of
government mechanisms (permits, etc);
(b) Set water quality classifications: Water supply,
recreation, etc.;
(c) Review new and existing sources. Permit
mechanisms and techniques (including offsets and
new trading policies [68 Fed Reg 1608 Jan 13,
2003]);
(d) Provide enforcement mechanisms, e.g. Sec. 303
TMDL Rules [American Farm Bureau Federation
v. Whitman; rule withdrawn in 2003 after
criticism]
(e) Technical assistance (e.g., NC-DENR site
material)
(3) Point Sources: Concerned Area Residents etc. v.
Southview Farm (276) What is a “point source”? Can be
traced to source (industry) * NPDES: CAFO’s [68 Fed Reg
7176 Apr. 14, 2003]
* Pollutant defined broadly: can be anything added to
water, including heat
* Point source program is working
* Any discharge (point source) must comply
* Monitoring and Reporting requirements on page
282;
* Ground to Surface Regulation (proof issue);
1. Administration of Program by states;
2. POTW Issues: Pre-Treatment Standards, Waivers,
Funding, and Secondary Issues
3. Regulatory and Enforcement Issues:
Self-reporting, Inspections and enforcement
(4) National Discharge Standards
a. Source Category
b. Technology based standards* BPT (best practicable
technology) BAT (best available technology) BCT
(best conventional technology)
c. Exemptions: “Fundamentally Different Factors”
d. Carrying Capacity is Not Considered* TMDL (water
discharge) total maximum daily loading
e. Three standards:
1. Conventional pollutants BOD, ISF, Oil, Greas, PH,
Fecal coliform (BCT/OPT)
2. Non conventional (ammonia, colors, dyes, iron) best
available (BAT applies)
3. Toxicants (BAT) 100 on list silver, heavy metal
Chart of Regulation Categories
400 [Reserved]
401--General provisions
402 [Reserved]
403--General pretreatment regulations for existing and new sources of pollution
405--Dairy products processing point source category
406--Grain mills point source category
407-- Canned and preserved fruits and vegetables processing point source category
408-- Canned and preserved seafood processing point source category
409--Sugar processing point source category
410--Textile mills point source category
411--Cement manufacturing point source category
412--Feedlots point source category
413--Electroplating point source category
414--Organic chemicals, plastics, and synthetic fibers point source category
415--Inorganic chemicals manufacturing point source category
416 [Reserved]
417--Soap and detergent manufacturing point source category
418--Fertilizer manufacturing point source category
419--Petroleum refining point source category
420--Iron and steel manufacturing point source category
421--Nonferrous metals manufacturing point source category
422--Phosphate manufacturing point source category
423--Steam electric power generating point source category
424--Ferroalloy manufacturing point source category
425--Leather tanning and finishing point source category
426--Glass manufacturing point source category
427--Asbestos manufacturing point source category
428--Rubber manufacturing point source category
429--Timber products processing point source category
430--The pulp, paper, and paperboard point source category
431--The builder's paper and board mills point source category
432--Meat products point source category
433--Metal finishing point source category
434--Coal mining point source category BPT, BAT, BCT limitations and new source performance standards
435--Oil and gas extraction point source category
436--Mineral mining and processing point source category
439--Pharmaceutical manufacturing point source category
440--Ore mining and dressing point source category
443--Effluent limitations guidelines for existing sources and standards of performance and pretreatment standards for new sources for the paving
and roofing materials (tars and asphalt) point source category
446--Paint formulating point source category
447--Ink formulating point source category
454--Gum and wood chemicals manufacturing point source category
455--Pesticide chemicals
457--Explosives manufacturing point source category
458--Carbon black manufacturing point source category
459--Photographic point source category
460--Hospital point source category
461--Battery manufacturing point source category
463--Plastics molding and forming point source category
464--Metal molding and casting point source category
465--Coil coating point source category
466--Porcelain enameling point source category
467--Aluminum forming point source category
468--Copper forming point source category
469--Electrical and electronic components point source category
471--Nonferrous metals forming and metal powders point source category
D. NC WATER QUALITY MODEL:
1. Non-Degradation Policy/Designate
Water Quality Classifications (0100
Rules)application To Watersheds: Cape
Fear
http://h2o.enr.state.nc.us/bims/Reports/basinmapHydro.html
http://cfpub.epa.gov/surf/huc.cfm?huc_code=03030005
North Carolina Watersheds
& Water Quality Designations
http://h2o.enr.state.nc.us/bims/Reports/basinmapHydro.html/
NC Basinwide Data
http://h2o.enr.state.nc.us/bims/Poster/poster.html/
Permit Information and Application Tracking
Find Permits helps businesses, citizens and consultants identify the permits they may need
from DENR for a particular project or activity. This is a self-guided interactive database.
Permits for Coastal Counties provides guidance on permits that might be needed for
activities in any of the 20 coastal counties.
Permit Coordination offers customers the option of working with a permit assistance
coordinator to answer questions, address concerns, and help identify and solve potential
problems related to permits. Permit Assistance Coordinators provide front-end assistance
and guide the applicant through the permitting process.
State Environmental Policy Act (SEPA) contains information about SEPA and related
links.
DENR Permits, Licenses, and Certification contains links to information about
applications, fees, rules and more.
Atlas of Freshwater Mussels and Endangered Fish The Nongame and Endangered
Wildlife Program of the Wildlife Resources Commission has developed the North Carolina
Atlas of Freshwater Mussels and endangered freshwater fish. This atlas provides detailed
iformation on the freshwater mussels and endangered fish in our state and provides
management recommendations to help reduce the impacts on sensitive aquatic habitats.
Application Tracking System enables one to check the status of most permit applications
submitted to DENR. Please note that this tool only tracks the permit until it is issued or
denied. Once the permit decision has been made, you will need to contact the appropriate
division for information.
Zoning Determination for Air Quality provides templates to follow for requesting a
determination of zoning consistency from a local municipality and for the municipality to
convey the results back to DAQ. This is a critical part of the air quality application process
and the number one reason your application may be deemed incomplete.
Small Business Assistance Programs assists small businesses with air quality and other
regulatory requirements, encouraging environmental compliance and stewardship.
Technical Assistance Information contains links to sites with technical help on
environmental issues.
2. Point Sources
a. Permits: Agencies have 3 options:
1. Grant permit (with conditions)
2. Deny permit
3. Grant with proviso other sources must adjust (“ratchet down”)
EPA trading system
b. Pretreatment/ Indirect Discharges (standard)
POTW (public owned treatment works) Problem with making
comply because don’t have to control (federal money available)
1. Pretreatment set by EPA, protect POTW
2. Prevent discharges without treatment (POTW violator)
* regulations- Categorical
c.
Sec. 303 Listing Approach For Non-compliance
http://h2o.enr.state.nc.us/nps/uwacolor.gif/
d.Enforcement Issues:
*EPA and state enforcement: cooperation
(eg 2001 Southeast NC ditching)
*Variation of policies between states and
between states and EPA/feds
*Citizens’ suits: American Canoe v.
Murphy Farms and standing; attorneys’
fees
3. Non Point Sources- Tracing to source is primary issue
(farms, street run off) * largest single source of water
pollution at this stage
* Large Industrial Facilities: Phase 1 Stormwater
* Farm point source Regs.* Cost share 75% in
north Carolina
*1991 Legislation re nuisance & zoning
*1994-1997 legislation
http://www.environmentaldefense.org/documents/37_May01%2Epdf
*
*
Coastal area/ coastal zone program – Phase 2
Stormwater: local government responsible
* 60-70% live near coast 50 miles
Multi-Media Issues: Mobile Source Petrochemicals
largest single source (eg,
closing of NH Creeks)
“Nonpoint source (NPS) pollution, unlike pollution from industrial and sewage
treatment plants, comes from many diffuse sources. NPS pollution is caused by rainfall
or snowmelt moving over and through the ground. As the runoff moves, it picks up and
carries away natural and human-made pollutants, finally depositing them into lakes,
rivers, wetlands, coastal waters, and even our underground sources of drinking water.
These pollutants include:
Excess fertilizers, herbicides, and insecticides from agricultural lands and residential
areas;
Oil, grease, and toxic chemicals from urban runoff and energy production;
Sediment from improperly managed construction sites, crop and forest lands, and
eroding streambanks;
Salt from irrigation practices and acid drainage from abandoned mines;
Bacteria and nutrients from livestock, pet wastes, and faulty septicsystems;
Atmospheric deposition and hydromodification are also sources of nonpoint source
pollution.”
http://www.epa.gov/owow/nps/qa.html/
a. Rules Issues: Large Industrial
(NPDES Stormwater) 64
Fed Reg. 68722 Dec. 8, 1999];
b. Coastal Non-Point Rules: jurisdictional issues
and stakeholders
c. Techniques: land-use overlap;
transportation issues; NC 75 ft.
buffers, greenspace; NRCS; Sec.
303
d. INFORMATIONAL: Beaches BILL (1999)
Beach Water Quality Data
http://yosemite.epa.gov/water/beach2002.nsf
e. EPA “TMDL” PROGRAM
http://www.epa.gov/owow/tmdl/tptmdl/
http://www.epa.gov/owow/tmdl/
North Carolina Approved TMDL standards (2001)
STREAM/CREEK/RIVER 312
ESTUARY 49
OCEAN 16
LAKE/RESERVOIR/POND 13
NOT REPORTED 4
Total Number of Impaired Waters Reported: 383
http://oaspub.epa.gov/waters/state_rept.control?p_state=NC/
E. Other Surface Water Issues
(1) Inter Basin vs. Intra Basin Transfers: The
Colorado and the Roanoke River Cases:
Seepage into systems; Coors Beer trading
(2) Stream Flow Regulations [CA case]
(3) Allocation Systems: California Allocations
(see Dellapenna article and new Model Codes;
regulated riparianism)
(4) Water Quality Trading Policy (Jan 13 200368 Federal Regulation 1608) Extends formal
trading concept to surface waters
(5) Effluent Charges: J.H. Dales
Safe Drinking Water Act:
a.
Key Concepts: Procedure and
Liability:
1. Public Systems
2. Private Systems
b. Administration
Major U.S. Aquifers
http://www-atlas.usgs.gov/Images/20maquifer.gif
Gateway Statutes
Introduction: Gateway Product Cannot Be Marketed
Without Review; Three Approaches to Chemistry:
1. Food Drug and Cosmetic Act (Food Quality Protection Act
of 1996). Dept. of Health and Human Services
a. Safe + Effective. Any food additive (Delaney)
b. Labeling Rules and Issues- “organic”
2. 1972: FIFRA- (Not included in TSCA definition of toxics)
Federal insecticide, fungicide, rodenticide Originally
designed to stop false advertising; Congress armored
following Silent Spring
3. 1976 TSCA: Congress saw media-specific laws alone
would not be sufficient. Chemistry approved/PMN and sale
4. Comparison with other Statutes: CERCLA and CAA and
CWA: What to do once out into waste stream or
environment in general?
The Toxic Substances Control Act (TSCA) was enacted in
1976 as a “gateway” so that more would be known about
toxic materials before they were used and disposed of.
1.
EPA Authority: The Act authorizes EPA to
a.
Review new chemicals and significant new
uses of existing chemicals (Section 5),
b.
Require testing of chemicals that may present
a significant risk to human health or the
environment (Section 4), (Interagency Testing
Comm)
c.
To study the effects of existing chemicals
(Section 8)
d.
To limit the manufacture, use, distribution
and/or disposal of chemicals that present an
“unreasonable risk.” (Section 6).
(1) Asbestos Hazard Emergency Response
Act (1986) [Corrosion Proof Fittings v.
EPA 947 F.2d 1201 (1991):
“We conclude that EPA has presented insufficient
evidence to justify its asbestos ban. We base this conclusion upon two
grounds: the failure of the EPA to consider all necessary evidence and
its failure to give adequate weight to statutory language requiring it to
promulgate the least burdensome, reasonable regulation required to
protect the environment adequately. Because the EPA failed to address
these concerns, and because the EPA is required to articulate a
“reasonable basis” for its rules, we are compelled to return the
regulation to the agency for reconsideration.” [proceedings begain in
1979]
(2)
Regulating PCB’s (Sec. 6):
*Presumption of Unreasonable Risk, therefore: Ban on
manufacture, processing or distributing PCB’s in commerce in the US
unless in completely enclosed container or as specified.
(3)
Radon: Title III, directs EPA to develop model construction
standards and techniques to control radon in NEW buildings. Creates
clearinghouse and authorizes state grants
(4) Lead-Based Paint Exposure Reduction
Act: 1992: Requires EPA and OSHA to identify lead paint hazards,
including safe levels, and to develop training and certification
programs for contractors who do abatement. Also includes REAL
ESTATE disclosure linkages.
(5)
Biotechnology:
http://www.epa.gov/opptintr/biotech/fs-001.htmFinal
Regulations Under the Toxic Substances Control Act Summary: EPA is publishing final rules which fully
implement its screening program for new microorganisms under Section 5 of the Toxic Substances Control Act
(TSCA). These regulations tailor to microorganisms the screening program that has been in place since 1986 for
microbial products of biotechnology. They establish a separate part in the Code of Federal Regulations for microbial
products of biotechnology subject to TSCA, 40 C.F.R. Part 725; create a number of exemptions; and codify EPA's
approach to research and development (R&D) for microbial products of biotechnology. These rules provide
significant regulatory relief to those wishing to use certain products of microbial biotechnology. At the same time,
these rules are designed to ensure that EPA can adequately identify and regulate risk associated with microbial
products of biotechnology without unnecessarily hampering this important new industry.This fact sheet summarizes
the key components of the final rules, "Microbial Products of Biotechnology; Final Regulations Under the Toxic
Substances Control Act". For more details, please refer to the accompanying Federal Register Notice.
Microorganisms Subject to These Rules
Microorganisms subject to this rule are "new" microorganisms
used commercially for such purposes as production of industrial enzymes and other specialty chemicals; agricultural
practices (e.g., biofertilizers); and break-down of chemical pollutants in the environment.These rules continue the
interpretation of "new" microorganism first put forth by EPA in 1986. New microorganisms are those microorganisms
formed by combining genetic material from organisms in different genera (intergeneric). A genus (pl. genera) is a
level in a classification system based on the relatedness of organisms. EPA believes that intergeneric microorganisms
have a sufficiently high likelihood of expressing new traits or new combinations of traits to be termed "new" and
warrant review. Microorganisms that are not intergeneric would not be "new", and thus would not be subject to
reporting under Section 5 of TSCA.
Microbial Products of Biotechnology:
Reporting Requirements These regulations create a reporting vehicle specifically designed for microorganisms, the
Microbial Commercial Activity Notice (MCAN). Persons intending to use intergeneric microorganisms for
commercial purposes in the United States would submit an MCAN to EPA at least 90 days before such use. EPA has
90 days to review the submission in order to determine whether the intergeneric microorganism may present an
unreasonable risk to human health or the environment.The rules also address intergeneric microorganisms used in
R&D for commercial purposes and creates a vehicle for reporting on testing of new microorganisms in the
environment, a TSCA Experimental Release Application (TERA). A TERA would be submitted to EPA at least 60
days prior to initiating such field trials. The TERA is designed, in recognition of the needs of researchers, to provide a
high measure of flexibility and a shorter review period (60 days). R&D for commercial purposes are those activities
which are funded directly, in whole or in part, by a commercial entity regardless of who is actually conducting the
research; or which will obtain for the researcher an immediate or eventual commercial advantage.
Exemptions Certain intergeneric microorganisms would be exempt from the requirement to submit a MCAN if the
manufacturer meets criteria defining eligible microorganisms and specified use conditions. This exemption is most
applicable to the manufacture of specialty and commodity chemicals, particularly industrial enzymes.Intergeneric
microorganisms used at R&D in contained structures are exempt from EPA reporting requirements, if researchers
maintain records demonstrating eligibility. Researchers are exempt from this record keeping requirement when the
researcher or institution is in mandatory compliance with the National Institutes of Health (NIH) "Guidelines for
Research InvolvingRecombinant DNA Molecules". Those researchers voluntarily following the NIH Guidelines can,
by documenting their use of the NIH Guidelines, satisfy EPA's requirements for testing in contained structures.
Alternatively, researchers can take the exemption by documenting that they meet eligibility criteria laid out by EPA in
these rulemakings.Certain intergeneric microorganisms in R&D field testing are also exempt. Testing on ten acres or
less involving Bradyrhizobium japonicum and Rhizobium meliloti is exempt when certain exemption criteria specified
by these rules are met.
2. TCSA Methodology:
a. Risk Quantification: Factors: (P321) effect;
magnitude of Exposure; Benefits and Availability
of alternatives
RISK: Corrosion Proof Fittings - Asbestos
Ban: TSCA is NOT zero risk
Risk Assessment – Resources for the Future
critique; Methodology: (p328) Hazard
Identification; Dose-response Assessment;
Exposure Assessment; Risk Characterization.
Value Judgments. 10 –6
b. Least Burdensome Approach: Substitutes;
“Reasonably ascertainable economic
consequences”
c. TCSA Review Of New Chemistry:
(1)
(2)
(3)
Pre-Manufacture Notice: The burden/expense is on EPA to review the
Premanufacture; P2 Methodology[1] and to require further documentation and
testing or to limit market access by rule because the substance presents an,
“unreasonable risk of injury to health or the environment” (Section 5). If EPA
does nothing, the product may be marketed. Products Liability issues affect
availability of data.
Test RULE Human Exposure Chemical Manufacturers Association v. USEPA
(1988)EHA in manufacturing process
Regulatory Options: Specifications and restrictions
[1] Pollution Prevention Framework (P2)
“Screening Chemicals in the Absence of Data developed by: Office of Pollution Prevention
and Toxics U.S. Environmental Protection Agency. The P2 Framework is an approach to risk
screening that incorporates pollution prevention principles in the design and development of
chemicals. The objective of the P2 Framework approach is to inform decision making at early
stages of development and promote the selection and application of safer chemicals and
processes. This approach is implemented by means of a set of computer models that predict
risk-related properties of chemicals using structure activity relationships (SARs) and standard
(default) scenarios. These models have been developed by EPA's Office of Pollution and
Toxics (OPPT) to screen new chemicals in the absence of data. Annually EPA evaluates
~2,000 chemicals submitted as Premanufacture Notices (PMNs) by industry under the New
Chemicals Program of the Toxic Substances Control Act (TSCA) of 1976. TSCA requires EPA
evaluate the chemicals within 90 days, however the law does not require that the submitter
conduct laboratory tests to evaluate potential hazard and risk of the chemicals. Operating
under this time limitation and often a lack of data, EPA developed methods to quickly screen
chemicals in the absence of data”
d.Existing Chemicals: May also be regulated
by rule if the EPA has found an,
“unreasonable risk,” in which case the EPA
must adopt the “least burdensome
restrictions” on manufacture and use of the
product. EPA resources are Limited:
Environmental Defense and the Chemical
Manufacturers’ Association joint program to
test the 3000 chemicals (ED/Chem Industry
Association efforts).
Environmental Defense Comment on TSCA:
“Almost everyone agrees we should know whether the chemicals in widespread use in the U.S. pose
hazards to human health or to the environment. But, very surprisingly, the most basic hazard
information about the most common chemicals used in industry and consumer products often can't be
found in the public record, as pointed out in our groundbreaking 1997 report, Toxic Ignorance.
Environmental Defense has played a major role in a new initiative -- known as the High Production
Volume (HPV) Chemical Challenge -- to make sure that quality information exists and is available to
the public.
“Under the initiative, more than 450 chemical companies have voluntarily signed up to review more
than 2,200 high-volume chemicals that they produce, and to generate information where basic hazard
data about the chemical don't exist. (If data aren't made available voluntarily, the Environmental
Protection Agency is to mandate their development.)
“Where information about a chemical doesn't already exist, additional testing may need to be
conducted using laboratory rodents and laboratory fish. To minimize testing on animals (see below),
extensive steps are being taken to use other kinds of approaches (such as structure-activity
relationships, where data on one chemical is extrapolated to a similar one) and to speed up
development of cell-based and other non-animal test methods.
“In March 2003, Environmental Defense released a detailed status report, Facing the Challenge, that
examines the significant progress made to date on implementing this vital chemical assessment
program and evaluates how well or poorly companies are doing in honoring their commitments. The
report also identifies several disturbing trends, however, including the fact that there are more than 500
chemicals that are not yet sponsored, called orphan chemicals. Get more detailed information and
search by company or by chemical by going to our new HPV Chemical Tracker.
“Environmental Defense has also been supportive of the European Union's proposal for a major
overhaul of its chemicals policy, called REACH (for Registration, Evaluation, and Authorization of
CHemicals).” http://www.environmentaldefense.org/system/templates/page/subissue.cfm?subissue=14
e. Inventory Update Rule (68 Federal Reg.
848, January 7, 2003)
(1) Threshold
(2) Exposure- Related Data
(3) Processing and Use Information
(4) Exemptions
(5) Confidentiality
3.New Approaches
a. EPA: Partnerships, such as
http://www.epa.gov/opptintr/dfe/projects/proje
cts.htm
b. Education/Cooperative Programs:
http://www.epa.gov/opptintr/opptprg.htm
RISK MANAGEMENT: INSURANCE &
PRODUCTS LIABILITY
Review:
1. Products Liability = Strict Liability
*
Enterprise Liability for drugs, chemicals
*
Toxic Tort and Class Actions
2. Insurers’ Response:
*
Insurability: Review of Product, net worth
*
Exemptions: If exempt, the question is whether the manufacturer
is bankrupt or otherwise judgment-proof?
*
Law Reform:
*
Products Liability Reform: National Legislation and Preemption
*
(eg. Statute of Repose for aircraft)
*
Punitive and General Damage Limitations
*
Limitations on the right to sue: mandatory ADR
*
Attorneys Fees Restrictions
Exercise: Students Bring Pesticide Label
C. FIFRA: Registration & Restricted Access:
1. Key Concepts:
(a) 2 types : Consumer and
Licensed Applicator;
(b) General laws like products
liability still apply;
(c) Standard labels;
(d) Consumer Instructions &
Compliance;
(e) Two types of chemistry: before
1972 after 1972;
(f)
Cost-benefit analysis (305)
2. Requirements of FIFRA: Pesticide must be
registered if it meets criteria:
a. New Chemicals: Its composition is such to
warrant the proposed claim for it; Its labeling
and other materials comply with the
requirements of the act; it performs intended
function without reasonable adverse effects on
the environment; when used in accordance
with the widespread and commonly recognized
practice, it will not generally cause
UNREASONABLE adverse effects on the
environment (thus Cost-Benefit important
consideration); General v. Restricted
b. Pesticides in Use (Pre ‘72 and registered):
Cancellation/ Suspension (“imminent hazard”)
3. Administration of FIFRA
4. Limitations on FIFRA
a. Difficult for EPA to cancel pesticides
b. Trade Secrets and use of data (p 306)
c. Health Effects studies emerging: Pop’s
d. Crossover: Effect to Surface and Ground
Waters
e. Issues with Aerial Application NPDES Permit
f. Issues related to Organic Foods (eg.
“organics”
D.
Food Quality Protection Act of 1996: Repeal
of the Delaney Clause:
1.
Key Concepts: “Safe” and “Effective,”
“Additives”
2.
Procedures:
a.
Drugs: Independent Testing
b.
Foods: New law requires both
FDA and EPA to establish health-based
standards for pesticides residues in all
foods*Repealed Delaney Clause which
was a Zero tolerance standard
“reasonable certainty of no harm;”
labeling
3.
Hot Issues: What are you Eating?
The Waste Stream
Resource Conservation & Recovery Act
1. Key Concepts:
●
Landfills and Waste Stream.
●
Hazardous Waste Manifest Tracking follows
hazardous material from cradle to grave):
Based on Manifest system from trade (Mining
Congress v. USEPA p336);
●
Definitions: “Solid Waste” does not include
materials that are recycled in the
manufacturing process; “Solid Waste”
includes solid, liquid and gaseous;
●
“Reduce, Reuse, Recycle”
Sec. 6903. - Definitions As used in this chapter: (1) The term
''Administrator'' means the Administrator of the
Environmental Protection Agency…..
(27) The term “solid waste” means any garbage, refuse,
sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility and other discarded
material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community
activities, but 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 permits under section 1342 of title
33, or source, special nuclear, or byproduct material as
defined by the Atomic Energy Act of 1954, as amended (68
Stat. 923)
2. Administration: Federal – State Roles
3.Solid Waste: Design and Methodology
a) Retrofit and New Landfills:
1) Liners
2) Safety Plans
b) Existing Landfills:
1) Remediation
FLEMINGTON LANDFILL
NC Hwy. 421
Wilmington, New Hanover Co.
PD: Cape Fear SoccerPlex, LLCSite of a closed (1979),
privately operated domestic and industrial solid waste
landfill with VOC-impacted soil and groundwater. Intended
reuse is for a soccer complex. This is the first former
landfill property proposed for redevelopment under the NC
brownfields statute, and the project’s feasibility and
technical challenges are being carefully evaluated.
United States v. Waste Industries
– Flemington Landfill
“RCRA employed a regulatory approach designed to manage the
problem of hazardous waste disposal. By providing penalties against
generators, transporters, and disposers of hazardous waste who violate
standards or permit requirements, the statute oversees waste from
"cradle to grave." 45 Fed. Reg. 33,066 (1980). See 42 U.S.C. §§ 69216949; 40 C.F.R. §§ 262-267 (1982).One particular area of concern,
abandoned or inactive hazardous waste sites,5 received no specific
consideration in the RCRA. Congress failed to anticipate the
magnitude of the problem created by orphan dump sites, and threats to
the environment engendered by existing disposal sites remained. See
Comment, Hazardous Waste Liability and Compensation: Old
Solutions, New Solutions, No Solutions, 14 CONN. L. REV. 307, 316
(1982); Superfund: Conscripting Industry's Support for Environmental
Cleanup, 9 ECOLOGY L.Q. 524, 538 (1981).”
13 ELR 20286 | Environmental Law Reporter | copyright © 1983 | All rights reserved
“Notice of Lodging of Settlement Pursuant to RCRA In accordance with Department policy, 28 C.F.R. 50.7, and
42 U.S.C. 6973(d), notice is hereby given that on January 19, 1996, a proposed Final Consent Decree in United
States versus Waste Industries, Inc., et al., (E.D. N.C.) (Civil No. 80-4-CIV-7), was lodged with the Federal District
Court for the Eastern District of North Carolina. The United States filed its complaint in this action on January 11,
1980, on behalf of the Environmental Protection Agency (``EPA'') pursuant to Section 7003 of the Resource
Conservation and Recovery Act (``RCRA''), 42 U.S.C. 6973. The complaint sought injunctive relief to abate an
imminent and substantial endangerment resulting from the disposal of solid or hazardous waste at the Flemington
Landfill site (``site'') in New Hanover County, North Carolina. On August 5, 1987, a Partial Consent Decree was
entered by the District Court, requiring a Settling Defendants to conduct a complete assessment of groundwater
contamination in and around the site and to make a [[Page 3465]]
recommendation to EPA regarding the necessity for groundwater remediation. The Settling Defendants completed their
study on May 2, 1989, and submitted supplementary data in 1990 and 1991 and EPA has reviewed the results and
issued a Final Decisional Document, dated June 29, 1995, concurring with their recommendation that no further
groundwater remediation is necessary. The Final Consent Decree requires the Settling Defendants to monitor
groundwater at the site for a period of three years secure and maintain the site and maintain institutional controls. The
Settling Defendants will also reimburse the United States for past costs in the amount of $175,000. The Department of
Justice will receive for a period of thirty (30) days from the date of this publication comments concerning the proposed
Final Consent Decree. Comments should be addressed to the Assistant Attorney General of the Environment and
Natural Resources Division, U.S. Department of Justice, Washington, D.C. 20530, and should refer to United States
versus Waste Industries, Inc., et al., D.J. ref. 90-7-1- 2. Commenters may request a public meeting in the affected area
in accordance with Section 7003(d) of RCRA, 42 U.S.C. 6973(d). The proposed Final Consent Decree may be
examined at the Office of the United States Attorney for the Eastern District of North Carolina, Suite 800 Federal
Building, 310 New Bern Avenue, Raleigh, N.C. 27611 and at the Consent Decree Library, 1120 G. Street, N.W., 4th
Floor, Washington, D.C. 20005. A copy of the proposed Decree may be obtained in person or by mail from the Consent
Decree Library, 1120 G Street, N.W., Washington, D.C. 20005. In requesting a copy, please enclose a check in the
amount of $8.75 ($.25 per page for reproduction costs) payable to Consent Decree Library.“
4.
Hazardous Waste: Subtitle C
a.
Land Ban On Disposal Of Most Hazardous
Waste Except Highly Regulated Facilities –
Injection Wells
b.
Key Concepts and Definitions
(1) Characteristic v. Listed: Ignitability (poses a
fire hazard); Corrosivity (has the ability to
corrode standard containers or devolve toxic
components of other wastes); Reactivity (has
the tendency to explode under normal
conditions); Toxicity (exhibits the presence of
one or more specified toxic materials)
(2) “Listed” by EPA
(3) Special Rules:
(a)
Mixture Rule- mixture of a hazardous
waste and a solid waste is called a
hazardous waste unless it qualifies for an
exemption;
(b)
Derived-from Rule a waste that is
generated from the treatment, storage, or
disposal of a hazardous waste is also a
hazardous waste, unless exempted;
(c)
Contained-in Rule, soil, groundwater,
surface water, and debris contaminated
with hazardous waste are also regulated
under Subtitle C;
NOTE: Recycling eliminates the mixing of hazardous
waste.
(4) Generator- any person by site whose act or process
produces hazardous waste:
(a) Classification: Small Quantity Generators: of
between100-1,000 kilograms of hazardous waste per
month 1 kilogram of extreme hazardous waste per
month (small generators allowed to store waste on
site for 180 days or more if more than 200 miles from
storage facility) and are governed by reduced
requirements for planning for emergencies and
training employees); Large Quantity Generators
produce more than 1000 kilograms of hazardous waste
and 100 kilograms of extreme hazardous waste (may
store waste for 90 days then becomes TSD);
Conditionally Exempt Small quantify generator- Less
than 100 kilograms per month and 0 extreme
hazardous waste (may store indefinitely or until reach
100 kilograms then becomes small quantity generator.
(b) Requirements: Manifest, Emergency Plans
(5) Transporter: HazMet Transportation Act (1975)
(6) TSD Facilities: TSD Facilities (p341) Responsibilities:
(a) Analyze wastes entering the facility to ensure identity
as specified on the manifest;
(b)Provide security at the site and undertake inspections,
monitoring safety, security, operating, and structural
equipment: trucks road worthy, stack device
monitoring;
(c) Train employees to handle emergencies and take
precautions to prevent reactions between wastes;
(d) Maintain emergency equipment and inform police, fire,
and emergency response teams about the layout and
hazards of the facility;
(e)Written plan for responding to emergencies.
d. Enforcement Mechanisms:
(1) Public: (344) Sec. 3007/3008 authorize
civic penalties up to $25,000/day for a
KNOWING violation
Case Notes: US v. NEPACCO (1986 – 8th
Cir) p345 - Company produced hazmet, incl.
2,4,5T, doioxin, toluene. Arranged with Farmer
Denney to dispose on farmland in 55gal drums
1984 RCRA amendments: (a) strict liability, and
(b) Retroactive
(2) Citizen Suits: 7002 “imminent or
substantial endangerment” difficult trigger;
e. Issues in Hazardous Waste
(1) Waste Stream (Constitutional and political)
a) Interstate Compacts & NC Three,
Recycling
b) Constitutionality: Hunt v. Alabama
c) Political: Pro: Pro-Growth Against: Siting
“Nimby”
(2) Brownfields Issues: Crossover to Land Use
and CERCLA:
Bush Administration Regulations (2003)
f. UST’s – estimates of >2 million at 700,000
sites –
* Estimates at $41 billion over 30 years
* State programs such as NC plan for
commercial LST’s and now residential
(disclosure issues)
40 High-Priority Superfund Sites Cleaned Up
FOR RELEASE: TUESDAY NOVEMBER 4, 2003
Dave Ryan, 202-564-7827 / ryan.dave@epa.gov
Forty high-priority hazardous waste sites across the country were cleaned up in
fiscal year 2003 (Oct. 2002 - Oct. 2003), EPA announced today. To date, EPA
has cleaned up 886 sites on the Superfund National Priorities List (NPL). These
sites are considered some of the highest health threats in the nation.
"The cleanup of contamination at these 40 sites is indicative of the continued
"We still face serious challenges because we still have much work to do at our
remaining sites," she continued. "Although we currently have 699 construction
projects underway at 436 sites, many of these sites tend to be large, expensive,
and complex."
To help meet these challenges posed by the large, complex sites, the President
requested a $150 million increase in the Superfund budget for Fiscal Year 2004.
The NPL now contains 1,243 final sites
“The majority of Superfund site clean-ups are conducted by
private parties responsible for the contamination, under EPA
control and pursuant to EPA enforcement actions.
Historically those have represented about 70 percent of all
clean-up activity. As of last year, EPA has secured more than
$20 billion in cleanup commitments from polluters. “
http://www.epa.gov/superfund/news/pr_110403.htm
C.
CERCLA (SUPERFUND) (1980)
1.
Key Concepts:
a.
Responsibility for Existing
Pollution: Three Main Options:
Landowner, RP, and/or
Taxpayers: Provides methods to
remedy and recover costs for
release from facilities; EPA can
clean up and recover cost or
EPA can order responsible party
to clean up the waste
b
Definitions: Broader definition of Release; exclusions, e.g., Petroleum not under
CERCLA/RCRA: Regulated under Oil Pollution Act;
Release- Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing any quantity of hazardous substance.
Facility- Any site or area where a hazardous substances has come to be located (building, structure,
institutions, wells, pipes, or equipment.
Response Under superfund there are two categories of responses: Removal action- Emergency
Intervention to diminish the threat, serious risk; Remedial Action- long term response.
Responsible Parties: a. Owners and operators of a vessel or facility. b. Any person who at the time of
disposal of any hazardous substances owned or operated any facility at which such substances were
disposed. c. Any person who by contract, agreement, or otherwise arranged for the transport of
hazardous substances owned or possessed by such person to another’s vessel or facility. d. Any person
who accepts or has accepted hazardous substances for transport once such hazardous substances
causes the incurrence of response costs.
Person (any individual, firm, corporation, association, partnership, consortium, joint venture,
commercial enmity, US Government, state, municipality, commission, political subdivision of a state,
or interstate body.
National Priorities List-(NPL) ranks sites
National Contingency Plan- primary document generated in response to National Priorities List
2. CERCLA Liability: Broad-Based
a. Characteristics:
(1)
Strict liability
(2)
Joint and several: Monsamto; Bush
Administration takes opposite view
(3)
CERCLA is retroactive. – NEPACCO
(4)
CERCLA provides two different
theories for a party to recover some or
all of the costs incurred: Section 107(a)
permits a party to sue PRP’s; Section;
113(f) permits an action among parties
for a division of the payment (Recent
Cases)
b. “Recoverable Response Costs” Include:
(1) Sampling/monitoring costs
(2) Disposal of hazardous substances
(3) Temporary Housing/Relocation (Love
Canal and Times Beach)
(4) Attorney/consultant fees 50% of Fund!
(5) Not covered: psychological impactW.R. Grace
c. Administration:
(1)
Management issues, EPA attempts
to convince PRP’s to clean site;
(2)
EPA provides small parties a
covenant not to sue, which releases
them from joint and several
liability: NC;
(3)
3106 Cleanup Orders
(4)
State as defendant: NC Battery
case
d. Defenses to CERCLA liability: Law and Strategy
(1) Act of God
(2) An act of War
(3) Act or omission of a third party as long as
defendant exercised due care and took
precautions against actions of third party
(4) Innocent Landowner Defense; In 1986 SARA
amendments innocent landowner defense
which is generally not available in commercial
settings unless a Phase l has been done
(5) Lenders Exemption: foreclosures; case law
attempt
3. Brownfields: Small business liability relief and
Brownfields Revitalization Act (P.L. 107-118)
a. Intent and Purpose
b. Process Rules: Federal; 68 Federal Regulation
10675 (March 6, 2003)
(1) Liability: No Superfund sites or PRP’s
(2) Tools: Deed Restrictions, Risk
Management
c. State Administration
4. Legislative Issues: Consensus or Contentious? Joint
and Several Liability
D.
EPCRA* Community Right to Know
Act- plan developed in coordination
with community groups for response to
chemical emergencies.
Chapter 6
Land Use
Land Use and the Development Process www.co.newhanover.nc.us/PLN/menu.htm, www.silcom.com/~sbcplan/
a. Key Concepts:
(1)
Local Government Power;
(2)
Wide Latitude Of Govt (San Marino, City of
Industry);
(3)
Significant Economic issues: tax base
and jobs. Land owners would rather
deal with local government not
state/federal government;
(4)
Candidates and Ballot Measures (eg,
Wrightsville Beach, Santa Barbara,
UNCW grad); initiative/referendum
b. Definitions:
(1)
(2)
(3)
(4)
grandfathering,
non-conforming,
special use,
overlay
c. Planning Process:
http://www.nhcgov.com/PLN/PLNsteercomm.asp
California Environmental Documents.htm
(1) General Plans: State and Local Option
Contents: Elements: Land use- Map; Circulation;
Economic; Stormwater Runoff plan
(2) Specialty Plans: Geographic/Use/Character (Historic)
(3) Consistency: Does plan have to match zoning
ordinances? (NC no/ CA yes)
(4) Current Problem: (NCCF State of the Coast (2002):
“As bad as the planning process has been, the
implementation has been worse….”)
City of Wilmington Community Development
http://www.ci.wilmington.nc.us/development/Planning.htm
Zoning Ordinance
http://library8.municode.com/gateway.dll/NC/north%20carolina/3604?f=templates&fn=defa
ult.htm&npusername=11506&nppassword=MCC&npac_credentialspresent=true&vid=d
efault
New Hanover County CAMA Land Use Plan Update
http://www.nhcgov.com/PLN/PLNcama.asp
c. Zoning- Process by which use of land in many dimensions can be
regulated: Political Board assigns Zones through Zoning Map
(1) Key Terms: Permitted - Special Uses – Overlay Zones –
Coastal- Development Lines.
(2)
Purposes: Table of Uses, Area and Height Table
(a) Use, e.g., blacksmith or a funeral home?
(b) Physical Characteristics: Height- How tall; Bulk- How
massive/Footprint; Set back- How far from the
boundaries of the property?
(c) Density: Current raging debate in environmental
community: Mixed-use Ordinances
(d) Economics
(e) Traffic
(f) Aesthetics
(g) Historical Preservation: Penn Central
(h) Environmental: Indirect air sources; wetlands;
secondary impacts
City of Wilmington Zoning Ordinance Outline
Art. I. In General, §§ 19-1--19-4
Art. II. Definitions,
§§ 19-5--19-9
Art. III. Zoning Districts and Map,
§§ 19-10--19-15
Art. IV. Zoning District Regulations, §§ 19-16--19-40
Art. V. Off-Street Parking and Loading,
§§ 19-41--19-48
Art. VI. General Regulations,
§§ 19-49--19-80 Art.
VII. Nonconforming Situations,
§§ 19-81--19-90
Art. VIII. Special Use Prerequisites, §§ 19-91--19-94
Art. IX. Special Use Permit Approval Process, §§ 19-95--19-108 Art.
X. Ordinance Amendments, §§ 19-109--19-119 Art.
XI. Special Use Districts,
§§ 19-120--19-129 Art.
XII. Historic District Commission,
§§ 19-130--19-144 Art.
XIII. Board of Adjustment, §§ 19-145--19-154
Art. XIV. Administration and Enforcement,
§§ 19-155--19-169 Art.
XV. Landscaping and Buffering,
§§ 19-170--19-180 Art.
XVI. Establishment of Vested Rights, §§ 19-181--19-190
d. ZONING- …continued…
(3) Specialized Situations: (Development Standards)
(a) Subdivision Regulations- response to fraud
* Subdivision- parcel of land divided into two or more units
(Definition;Cumulative?)
* Requirements to look at when making a subdivision Roads, Drainage,
compaction (role of civil engineer)
(b) Condominiums and PUD’s
(c) Mixed-Use Zones
(d) Historic Preservation
(e) Overlay Zones
(4) Adjustment
(a) Variance- exception to restrictions
(b) Special use permits- allows layer of discussion by local
government (vote of planning commission)(may be restrictions)
(c) Seek rezoning- spot zoning (not legal in most cases)(change just
one parcel)
(d) Brown fields- contaminated areas
(e) Non Conforming Situations (use, physical characteristics)
1. Time limit(non conforming use can be restricted by time)
2. Can not expand non conforming use
(5)
Enforcement: Zoning Enforcement Process
(informal and formal)
II. ADDITIONAL LAYERS OF REGULATION
A.
B.
Local: Building, Fire, Health Department, etc.
State:
(1)
Coastal * Coastal* DCM (division of coastal
management)
*Example: Vegetation Line Regulation Change: Small
Lots
(2)
Wetlands: States often follow federal model: Post
Tulloch
www.envhelp.org/html/permitsinfo.asp?permitid=128
(3)
Enviro Review: Coastal Water Quality/Air Quality
Solid Waste Facilities
C. Federal
*Wetlands Regulation: RULES Section 404 Clean Water
Act* s
1) Model regulation/ permits- General Permits: Issue and ReIssue
www.usace.army.mil/inet/functions/cw/hot_topics/proposal_reissue.htm
2) No net loss of wet lands- Replacement
www.usace.army.mil/inet/functions/cw/cecwo/reg/oceover.htm
www.usace.army.mil/inet/functions/cw/cecwo/reg/nwpcond.htm
3) Jurisdiction:
*US v. Riverside Bayview Homes (takings still
possible)
*Solid Waste Agency of Northern Cook County v.
USACE
*Tulloch: SE NC case study: tate wetlands under
same political regulation
SMART GROWTH:
http://www.smartgrowth.org/default.asp
JUDICIAL REVIEW:
Constitutionality:
Euclid v. Ambler Realty * Reasonable zoning
classifications are an economic regulation that will be upheld
(presumed constitutional unless. “Arbitrary and Unreasonable”
Examples:
1. Limits of Zoning: ordinance based on “public sentiment”
2. No Zoning Without Planning: CA, not NC!
3. Procedural Issues: Delay and Political Shift
4. “Spot Zoning”
5.
Regulatory Takings: Question arises if economic regulation
eliminates ALL economic use, is it an unconstitutional Taking?
Yes and No!
II. TOTAL REGULATORY TAKINGS: LUCAS AND PROGENY
A. Origin of Law: Mahon v. Penn Coal
B. First Lutheran, Nollan and Lucas:
*Total Taking – Except Background Principles of Property Law
*Temporary Taking
* Nexus between Extraction and Regulatory Scheme (Dolan)
*Procedural Issues: Jury (City of Monterey)
C. Other Examples
Seawalls in Oregon: Good and the Public Trust
Temporary Takings: Current Term
TDR’s: Tahoe RPA
Standing to Challenge: City of Monterey
D. Legislative Response: Property Rights Legislation
*Temp takings
* Partial Takings
*Procedural Access
J
U
D
I
C
I
A
L
R
E
V
I
Chapter 14
ENFORCEMENT OF ENVIRONMENTAL LAWS
1.
Introduction: Issues in Enforcement
a.
Objectives
b.
Political Context
c.
Resource Issues
NORTH CAROLINA DENR
ENFORCEMENT
PYRAMID
RE
VP
OC
AT
T
R
CRIMINAL
CIVIL
ADMINISTRATIVE PENALTY
(NOV)
WARNING
2. C riminal Law & Procedure
a.
b.
c.
d.
e.
Intro including
(1)
Exclusionary Rule
(2)
Corporate Defendants (inc. officers)
(3)
Parallel Prosecution
Investigative Stages: warrants, wiretaps
Charging Process: grand jury/information
Trial Procedure
Sentencing Issues
3.
4.
Civil Remedies
a.
Objectives
b.
Methodology:
(1)
Remedy: Injunction, Forfeiture, specific
performance
(2)
Specialized Causes of Action: Unfair
competition;
RICO (CA Env. Law Sec. Article)
Regulatory Process (permit revocation, conditions): NC Enforcement Pyramid
a.
Objectives
b.
Methodology: denial (conditional/partial), approval
(conditional/partial); probation, revocation, sanctions
Civil/Criminal Comparison (Legal subject indices can be
found at Find law and Wash law.)
An important feature
distinguishing criminal and civil law is the sanction
imposed on the wrongdoer. Criminal sanctions may include
imprisonment while civil sanctions emphasize payment of
money.
Criminal Law
Administrative Law
Antitrust
Constitutional Law
Criminal Law
Environmental Law
Labor Law
Securities Law
Criminal and Civil Law
Civil Law
Agency
Bailments
Bankruptcy
Business Organization
Commercial Paper
Contracts
Insurance
Property
Sales
Secured Transactions
Torts
Trust and Wills
Issue
Criminal Law
Civil Law
Who initiates the legal action?
The government, on
behalf of the people.
The plaintiff of petitioner
Reason for the legal action
Punishment, deterrence,
rehabilitation.
Compensation for wrongful
act and /or deterrence.
Burden of proof
Beyond a reasonable
doubt.
Preponderance of the
evidence
Major sanctions available.
Fines, incarceration,
capital punishment
Various equitable remedies
(injunction, specific
performance, etc.)and/or
monetary damages.
Result of trial
Conviction/acquittal.
Judgment or
decree/dismissal.
Trial by jury.
Yes
Yes, in action at law. No for
actions in equity.
I.
CRIMINAL PROSECUTION OF ENVIRONMENTAL CASES
A.
Jurisdiction
1.
Federal
2.
State
B.
Classification of Crimes: Key is Punishment
1.
Malum Prohibitum v. Malum in Se
2.
Felony, Misdemeanors and Infractions
(a)
Jail Time
(b)
Wobblers
3.
Person v. Property Crimes
C.
Prosecutorial Discretion
1.
Agencies: NC Enforcement “Pyramid”
2.
Law Enforcement/Investigative
3.
Immunity and Plea Bargaining: The Turncoat
D.
Elements of Crime
1.
Requirement of Physical Act
2.
Mental State (whatever required for crime)
(a)
Malum Prohibitum: Strict Liability
(b)
Malum in Se
(1) General Intent: Knowing, Reckless,
Intentional, Negligent
(2) Malice
(c)
Enterprise Liability (Business Enterprise)
*Scope of Duty
*”Authorized, requested, performed or recklessly
tolerated by board or high managerial agent” MPC
*Individuals still liable, eg, NC city Wastewater
Treatment employees
E.
Parties to Crime: Accomplice Liability
1.
Principals; Accomplices: Before or During; Accessory after
the Fact: escape, aid;
2.
Withdrawal
F. Specific Offenses:
1.
Conspiracy, Solicitation and Attempt: Universals
2.
Regulatory Offenses: Malum Prohibitum, Conspiracy
RCRA, “knowing” requirement
3.
Traditional Crimes (Allied Chemical Kepone cases)
4.
White Collar Crimes:
Filing False Docs/Tax
5.
Combination Offenses
a.
Unfair Competition
b.
Regulatory Offenses
c.
RICO
II.
CRIMINAL PROCEDURE: CONCEPT SUMMARY
A. Pretrial Procedures
1. Investigative Procedures: Surveillance, Wires,
Photos (“Plain View”), Public Records
2. Searches: Administrative S/W
3. Charging Proceedure
a. Complaint Or Information
(1) Preliminary Hearing To Determine
Probable Cause To Detain (“Gerstein
Hearings)
(2) Pretrial Detention
(3) Preliminary Hearing To Determine
Probable Cause To Prosecute
b. Indictment
(1) Special Or Investigative Grand Juries
(2) Grand Jury Proceedings
4. Prosecutorial Duty To Disclose Exculpatory Information
And Notice Of Defenses
B. TRIAL
1.
2.
3.
4.
Basic Right To A Fair Trial
Right To Trial By Jury
RIGHT TO Counsel—amendment VI
Burden Of Proof And Sufficiency Of Evidence
a. Burden of Proof
b. Presumptions
c.. Sufficiency of Evidence
C. Constitutional Issues
1. Exclusionary Rule
a. Scope Of The Rule
(1) Fruit of the Poisonous Tree
(2) Exception – Breaking the Causal Chain
(a) Independent Source
(b) Intervening Act of Free Will
(c) Inevitable Discovery
(d) Live Witness Testimony
(e) In-Court Identification
b. Limitations On The Rule
1. Inapplicable to Grand Juries
2. Inapplicable to Civil Proceedings
3. Inapplicable to Internal Agency Rules
4. Good Faith Reliance on Existing Law or Defective Search
Warrant
5. Use Of Excluded Evidence For Impeachment Purposes
c. Harmless Error Test
2. FOURTH AMENDMENT
a. Arrests And Other Detentions
(1). What Constitutes a Seizure of the Person?
(2) Arrests
(a) Probable Cause Requirement
(b) Warrant Generally Not Required
(3) Other Detentions
(a) Investigatory Detentions (Stop and Frisk)
(b) Automobile Stops
(c) Occupants of Premises Being Searched May Be
Detained
b. EVIDENTIARY SEARCH AND SEIZURE
(1) Government Conduct Required
(2) Reasonable Expectation of Privacy
(a) Standing
(b) Things Held Out to the Public
Generally – No Expectation of Privacy
“Open Fields” Doctrine
Fly-Overs
(3) Searches Conducted Pursuant to a Warrant
(a) Requirements of a Warrant
(b )Showing of Probable Cause
(c) Use of Informers
(d) Warrant Must Be Precise on Its Face
(e)Execution of a Warrant Must Be Executed by the Police
4. Exceptions to Warrant Requirement
(a) Search Incident to a Lawful Arrest
(b)“Automobile” Exception
(c)Plain View
(d)Consent
(e)Stop and Frisk
(f)Hot Pursuit, Evanescent Evidence, and Other
Emergencies
5. Administrative Inspections and Searches
(a)Warrant Required for Searches of Private Residences and
Businesses: Proof much lower than regular S/W
(b) Exceptions Permitting Warrantless Searches
1. Contaminated Food
2. Highly Regulated Industries
(c) Inventory Searches
6. Wiretapping and Eavesdropping
3. Privilege Against Compelled Self-incrimination
a. Who May Assert The Privilege?
b. When May Privilege Be Asserted?
c. Method For Invoking The Privilege
d. Scope Of Protection
(1) Testimonial But Not Physical Evidence
(2) Compulsory Production of Documents
Corporate Records
(3) Seizure and Use of Incriminating Documents
e. Grant Of Immunity
(1) “Use and Derivative Use” Immunity Sufficient
(2) Immunized Testimony Involuntary
(3) Use of Testimony by Another Sovereign Prohibited
(4) NO POSSIBILITY OF INCRIMINATION
(5) WAIVER OF PRIVILEGE
4. Confessions
5. Pretrial Identification
6. Double Jeopardy
III.
IV.
Civil Remedies
a.
Objectives
b.
Methodology:
(1)
Remedy: Injunction, Forfeiture, specific
performance
(2)
Specialized Causes of Action: Unfair
competition; RICO (CA Env. Law Sec.
Article)
Regulatory Process (permit revocation, conditions): NC
Enforcement Pyramid
a.
Objectives
b.
Methodology: denial (conditional/partial), approval
(conditional/partial); probation, revocation, sanctions
V.
(I)
EVIDENCE: CONCEPT SUMMARY
GENERAL
A. DEFINING EVIDENCE
B. SOURCES OF EVIDENCE LAW
C. FEDERAL RULES OF EVIDENCE
D. THRESHOLD ADMISSIBILITY ISSUES
1. Materiality: The Proposition to Be Proved
2. Relevance: Probativeness—The Link Between Proof an Proposition
3. Federal Rules—Materiality and Probativeness Combined
4. Competence
a. Policies Related to Truth Seeking
E. EVIDENCE CLASSIFICATIONS
1. Direct or Circumstantial
a. Direct Evidence Relies on Actual Knowledge
b. Circumstantial Evidence Relies on Inference
2. Testimonial, Documentary, or Real
a. Testimonial Evidence
b. Documentary Evidence
c. Real Evidence
F. LIMITED ADMISSIBILITY
1. Admissible for One Purpose But Not Another
2. Admissible Against One Party But Not Another
3. Jury Must Be Properly Instructed
(2) RELEVANCE
A. DETERMINING RELEVANCE
1. General Rule—Must Relate to Time, Event or Person in
Controversy
2. Exceptions—Certain Similar Occurrences Are Relevant
a. Causation
b. Similar Accidents or Injuries Caused by Same Event or Condition
c. Previous Similar Acts Admissible to Prove Intent
d. Rebutting Claim of Impossibility
e. Habit
f. Evidence of Industrial or Business Routine
g. Industrial Custom as Evidence of Standard of Care
Industrial Custom Distinguished from Business
Routine Relevant to Standard of Care But Not Conclusive
B. EXCLUSION OF RELEVANT EVIDENCE AS A MATTER OF PUBLIC
POLICY
a. Insurance
b. Remedial Measures
c. Sec. 452 Prejudicial Material
d. Settlement Negotiations
III. JUDICIAL NOTICE
A. JUDICIAL NOTICE OF FACT: Matters of common
basic or common scientific principles
B. JUDICIAL NOTICE OF LAW
IV. TYPES OF EVIDENCE
A. REAL EVIDENCE
1. Types of real evidence
a. Direct
b. Circumstantial
c. Original
d.
Prepared
2. General conditions of assembly
a. Authentication
(1) Recognition Testimony
(2) Chain of Custody
b. Condition of Object; Useful Probativeness
c. Legal Relevance
knowledge,
3. Particular types of real proof
a. Reproductions and Explanatory Real Evidence
b. Maps, Charts, Models, Etc.
c. Exhibition of Child in Paternity Suits
d. Exhibition of Injuries
e. Jury View of Scene
f. Demonstrations
(1) Demonstrations Showing Effect of Bodily Injury Usually Excluded
(2) Demonstrations Under Sole Control of Witness Excluded
(3) Scientific Experiments
B. DOCUMENTARY EVIDENCE
1. Authentication
a. Quantum of Proof of Authenticity
b. Authentication by Pleadings or Stipulation
c. Evidence of Authenticity
(1) Admissions
(2) Testimony of Eyewitness
(3) Handwriting Verifications
(4) Ancient Documents
(5) Reply Letter Doctrine
(6) Circumstantial Evidence in General
(7) Photographs
(8) X-Ray Pictures, Electrocardiograms, Etc.
2. Best Evidence Rule
C. TESTIMONIAL EVIDENCE
1. Competency Of Witnesses
a. Basic Testimonial Qualifications
(1) Ability to Observe – Perception
(2) Ability to Remember – Memory
(3) Ability to Relate – Communication
(4) Appreciation of Obligation of Oath
b. Federal Rules of Competency
c. Modern Modifications of Common Law Disqualifications
2. Form Of Examination Of WitnesS
a. Leading Questions
b. Improper Questions
c. Use of Memoranda by Witness
(1) Present Recollection Revived – Refreshing
(2) Past Recollection Recorded – Recorded Recollection
(3) Inspection and Use in Cross-Examination
(4) North Carolina Law
3. OPINION TESTIMONY
a. Opinion Testimony by Lay Witnesses
(1) General Rule of Inadmissibility
(2) When Admissible
(3) Procedure
(
(4) Situations Where Opinions of Lay Witnesses Are Admissible
General Appearance or Condition of a Person
State of Emotion
Matters Involving Sense Recognition
Identity and Likeness of Appearance, Voice, or Handwriting
Speed of Moving Vehicle
Value of Own Services
Rational or Irrational Nature of Another’s Conduct (Sanity)
North Carolina Law
Intoxication
Value of Property or Services – North Carolina Law
(5) Situations Where Opinions of Lay Witnesses Are Not Admissible
Agency of Authorization
Contract of Agreement
b. Opinion Testimony by Expert Witnesses
(1) Requirements of Expert Testimony
(a) Subject Matter Appropriate for Expert Testimony
(b) Witness Qualified as Expert
North Carolina Law
North Carolina Medical Malpractice Cases
(c) Expert Must Possess Reasonable Probability Regarding
Opinion
(d) Opinion Must Be Supported by Proper Factual Basis
Personal Observation
Facts Made Known to Expert at Trial
Facts Made Known to Expert Outside Court
(2) Opinion May Embrace Ultimate Issue
(3) Scientific Evidence
(4) Authoritative Texts and Treatises
4. CROSS-EXAMINATION
5. CREDIBILITY – IMPEACHMENT
a. Methods of Impeachment – Cross-Examination and Extrinsic
Evidence
(1) Prior Inconsistent Statements
(2) Bias, Interest, or Hostility
(3) Conviction of Crime
(4) Opinion or Reputation Evidence for Truth
(5) Sensory Deficiencies
b. Rehabilitation
6. OBJECTIONS, EXCEPTIONS, OFFERS OR PROOF
7. TESTIMONIAL PRIVILEGES
a. Privilege Against Self-Incrimination
(
b. Governmental Privileges
(1) Identity of Informer
Privilege Claimed by Government
No Privilege If Identity Otherwise Voluntarily
Disclosed
c. Policy Privileges: Attorney-client, physician-patient,
psychotherapist
V. THE HEARSAY RULE
A.
B.
1.
2.
3.
4.
C.
1.
2.
3.
4.
5.
a.
b.
(1
Statements That Are Nonhearsay Under The Federal Rules
Hearsay Exceptions – Declarant Unavailable
Former Testimony
Statement Against Interest
Dying Declarations – Statement Under Belief of Impending Death
Statements of Personal or Family History
Hearsay Exceptions – Declarant’s Availability Immaterial
Present State of Mind
Excited Utterances
Present Sense Impression
Declarations of Physical Condition
Business Records
Business
Entry Made in Regular Course of Business
Business Activity
Example – Hospital Records
(2) Entrant Under Duty to Record
c. Personal Knowledge
(1) Recorder Need Not Have Personal Knowledge of Event
(2) Informant Must Be Under Business Duty to Convey Information
(3) Recorded Statement May Be Admissible Under Other Exceptions
d.
Entry Made Near Time of Event
e.
Authentication
f.
Trustworthiness
6.
Past Recollection Recorded
7.
Official Records and Other Official Writings
a.
Public Records and Reports
(1
Requirements for Admissiblity
b.
Records of Vital Statistics
c.
Statement of Absence of Public Record
8.
Ancient Documents and Documents Affecting Property Interests
9.
Learned Treatises
10. Reputation
11. Family Records
12. Market Reports
13. Residual “Catch-All” Exception of Federal Rules
VI. PROCEDURAL CONSIDERATIONS
A.
1.
2.
3.
a.
b.
c.
d.
BURDEN OF PROOF
Burden of Producing or Going Forward with Evidence
Burden of Persuasion (Proof)
Quantum or Measure of Proof
Clear and Convincing Proof
Beyond a Reasonable Doubt
Preponderance
B. PRESUMPTIONS
Chapter 15
International Topics
I.
BASICS
A.
No Overall Law, No World Government and No World Court
B.
International Law Evolved From Need To Stabilize Trade
***Manifest System (RCRA!);
Currency;
Financing of Goods, Contracts;
Conflict Resolution/ADR/Conflict of Laws (renvoi)
* Trade Agreements : GATT (WTO) , NAFTA
Hope to keep peace because nations would rather trade than fight (Marshall plan with Japan
and Germany included in world economic system)/Nixon’s Normalization Policy, Current 100
Nation Talks on Economic Issues
C.
Treaties Based On Politics – Foreign Policy of Nation-State: e.g., Sino-US
relations on Taiwan, ABM Treaty
1.
Map changed since 1989 (Berlin Wall - Russia) and will change regularly;. Many
governments don’t exist anymore; hard to fine for hazardous waste.
D.
2.
Treaties Must be analyzed for Enforcement Mechanisms: self-enforcing
(formulae, etc), or dispute resolution/enforcement procedures because politics
will regularly override
3.
Even UN and World Court decisions may be disregarded (and regularly are)
NGO’s Play Important Roles
1.
Technical: Environmental Defense and the Kyoto Protocol
2.
Political – Raising awareness internationally and domestically, e.g., Greenpeace,
Sierra Club lobbying
II. SOURCES OF INTERNATIONAL LAW
A.
Customary international law: general principles every one
accepts, e.g. the Trail SmelterCases - Trans Boundary Pollution“polluter pays” concept
B.
Resolutions and Declarations Of International Organizations
* UN, WTO, 1972 Stockholm Conference on the environment
(First Earth Summit).
*World health organization,
*EEU ban on genetically altered food,
*Economic weapons (e.g. sanctions or tariffs) most effective must
have voluntary support from other countries or NGO’s
*Ceres Principles and ISO 14000
C. International Treaties and Conventions
1.
Stockholm Conference 1972 on the environment first earth summit, feel
good conference but didn’t accomplish much except sustainable development
UN teaches sustainable development
2.
Montreal Protocol 1989- addresses ozone layer- freeze consumption levels
at 80’s Levels cut consumption in half by 1999 (freeon produced and sold on
the black market)
3. Vienna Accord: Safeguarding Resources from Transboundary Pollution
4.
Basel Convention- (barge of hazardous waste spent a year trying to find a
place to dump) * Requires government to be informed and receive consent for
hazardous waste.
5. * International Convention on the Law of the Sea
6. * Law of Outer Space
7. * 1992 Earth Summit UNCED another feel good conference
a.
UN Convention On Climate Change - Kyoto
b.
Rio Declaration (Appendix C p 434) Says people entitiled to safe
clean environment
c.
Statement Of Forest Principles
d.
Agenda 21
* None had any effect on international law nothing in them for
enforcement
8.
Maastricht and the EEU: Ban on Genetically Engineered, BGH
III. EMERGING ISSUES:
A. Overarching Issue: What Is Nation’s Foreign
Policy?
B. Who pays for Transboundary pollution?
Chernobyl, Rhine,US/Canada
* The Maquiladora phenomenon
C. How will Trade Treaties Affect Domestic Environmental (and Labor)
Laws? Montreal Meeting: Pledge to Trade as Method to Raise All Boats--perhaps an apt analogy given the warnings of Global Warming which the US is
playing
1.
Tuna-Dolphin: Environmental Policies of Producer Countries v.
Environmental Policies of the Consumer Nation: the Substance Itself
* Eg, Ban of CFC’s clear, but ban of CFC’s produced in factories that
emit in excess of certain limits SUSPECT
*US Steel tariffs held unlawful: 2003
2.
Mexican Trucks?
3.
Maquiladora
4.
World Trade Organization
*Formed as Dispute Resolution Organization
* Demonstrations (eg, Seattle, FLA) involve:
1. Environment- WTO change environmental laws for other
countries
2. Labor- Worker Safety including Child Labor
5.
World Bank ($20 bil annually)– Global Environment
Facility - $5 bil
D. How Will Existing Treaties Play Out? Nuclear Test Ban (ABM) to Montreal
Protocol, Iran
1. Kyoto Protocol: Case Study -Last Year the G8 pledged ratification
-The Bush campaign pledged to move forward with Kyoto
-The Bush administration says, “PASS”
*Features: Emissions Trading (sub-issues: carbon sinks)
*US v. EEU; Target Reduction: -7% below 1990 levels by
2008-2012.
*Developing Nations not subject to reduction
quotas (including India and China).
*Emissions Trading Issues: Carbon Sinks and Credits
E. How will Private Sector Efforts Play Out?
1. Industrial: ISO 14000
2. Consumer: Databases, Consumer Product Packaging,
Labeling, Product Regulation (see p 412 Disposable
Beer Cans v. Denmark); eco-taxes; product
limitations/bans (OK if neutral)
3.
4.
5.
6.
7.
Cooperative: NGO place at the international table;
Corporate Alliances, eg, BP, Shell, Dupont, Suncor,
Ontario Power, Alcan
re: global warming
Emissions Trading: carbon sinks, credits
Land Conservation: debt for land swaps
The Ceres Principles p 433
Environmental Audits: multi-national corporations
Chapter 6
Land Use
II. ENDANGERED SPECIES ACT (applies to all actions public or
private)
* Who owns species? TVA v. Hill (USSCt 1978): snail darter
* Listing/Delisting: Key provisions of section 4 secretary of interior
shall determine if species is in danger or threatened of species
a. Present or threatened distraction/modification of habitat/range
b. Over utilization for commercial, recreation, science, and education
purposes
c. Disease or perdition may or may not have to do with human activity.
d. Inadequacy or existing regulatory mechanisms
e. Other natural/man made factors effecting its existence
* Debate over listing/delisting

www.co.new-hanover.nc.us/PLN/menu.htm

www.silcom.com/~sbcplan/
I.
LAND USE- ONE OF THE FEW AREAS LOCAL GOVERNMENT
HAS POWER; Power To Zone Is Perfect Example Of Wide Latitude Of
Govt (San Marino, City of Industry)
*Significant Economic issues: tax base and jobs.
* Land owners would rather deal with local government not state/federal
government
*“Localism” also a reason regional and statewide land use acts have been
passed and proposed
Many Battles Wind up at Ballot Box: Candidates and Ballot
Measures (eg, Wrightsville Beach and UNCW grad)
•
A.
PLANNING PROCESS:
http://www.nhcgov.com/PLN/PLNsteercomm.asp
California Environmental Documents.htm
(1) General Plans: State and Local Option
Contents: Elements
* Land use- Map
* Circulation
* Economic
* Storm water run off plan
(2)Specialty Plans: Geographic
(3) (3) Consistency: Does plan have to match zoning ordinances some
do some don’t (NC no Ca yes) INTERFACE
Current Problem: (NCCF State of the Coast: “As bad as the
planning process has been, the implementation has been worse….”
EVIDENCE CONCEPTS