LECTURE NOTES FOR INTRODUCTION TO ENVIRONMENTAL LAW

Brookhaven National Laboratory/Associated Universities, Inc. • Upton, New York 11973
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DISTRIBUTION OF THIS DOCUMENT IS UNLIMITED
ABSTRACT
This four-hour overview course is designed to briefly describe the environmental law system. The course provides an overview that managers and technical people will find useful as a beginning course or a course that puts formerly taken detailed courses in perspective. The course begins by defining environmental law and describing the legal system that establishes compliance obi gations. Then, ali the major Environmental Acts such as The Water Pollution Control Act, The National 2nvironmental Policy
• Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) are briefly described and interrelated. Ali the environmental DOE Orders, selected books, and other source material are referenced. Radioactive pollutants ar,_not
, discussed; however, reference material is provided.
DISCLAIMER
This reportwas prepared as an account of work sponsored by an agency of the United States
Government. Neither the United States Government nor any agency thereof, nor any of their ,, employees, makes any warranty, express of implied, or assumesany legal liability or responsi-
bility for the accuracy, completeness, or usefulnessof any information, apparatus, product, or processdisclosed,or represents that its use would not infringe privately owned rights. Refer- cncc herein to any specific commercial product, process, o, service by trade name, trademark,
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I. WHAT IS ENVIRONMENTAL LAW ........... 1 ' A. Definition .............................. 1
B. The Legal System ........................ 1 C. Compliance Obligations .................... 1
II. LAWS THAT ESTABLISH COMPLIANCE OBLIGATIONS ....................... ..... 3 A, State Statutes and Regulations Implementing the
Federal Statutes ......................... 3 B. Torts ................................. 4 C. Laws That Enforce Permits, Prohibit and Penalize . 6 D. General Purpose Heavy Duty Criminal Laws .... 6 E. Enforcement Options Available .............. 6 F. References ............................. 7
III. WATER POLLUTION CONTROL ............. 8
A. History ................................ 8 B. Required Level of Treatment-Based Limits for
"Existing" Direct Discharges ................ 9 C. Required Level of Treatment-Technology-Based
Limits for "New Source" ................... 9
D, Permitting Under the National Pollutant Discharge Elimination System NPOES ................. 10
E. Permitting Procedures ..................... 10 F. Oil and Hazardous Substances Spills ........... 14 G. Enforcement of CWA ..................... 15
H. Disposal of Dredged or Fill Material is Affected by the CWA ........................... 15
I. Safe Drinking Water Act (SDWA) ............ 15
IV. EMERGENCY PLANNING AND COMMUNITY
• RIGHT-TO-KNOW ACT (EPCRA) ............ 19
V. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 19 " A. NEPA's hnportance ...................... 19
B. Council on Environmental Quality (CEQ) ....... 20
CONTENTS (Cont'd)
Section Titl.._...e page No.
VI ..... TOXIC SUBSTANCES CONTROL ACT (TSCA) . .. 21 A. TSCA of 1976 ........................... 21 B. TSCA Supplements ....................... 21 C. TSCA Requires Notification ................ 21 D. The Asbestos Hazard Emergency Response Act .. 21 E Premature Notification .................... 22
F. Reporting of Health & Safety Studies .......... 22 G. Biotechnology 23 H. Relationship Between TSCA and Other Laws .... 24
VII. FEDERAL REGULATION OF PESTICIDES ..... 25 A. OSHA ................................ 25
VIII. ASBESTOS - A CLOSELY REGULATED SUBSTANCE 25 A. Clean Air Act ........................... 25 B. Clean Water Act 25 C. TSCA ................................. 25
D. Resource Conservation & Recovery Act (RCRA) . 25
IX. ASBESTOS HAZARD EMERGENCY RESPONSE
ACT OF 1986 (AHERA) ........ . ............ 25
X. RESOURCE CONSERVATION AND RECOVERY ACT 26 A. RCRA ................................ 26 B. Definition of Solid and Hazardous Waste ....... 26 C. Hazardous Waste Lists .................... 27 D. Civi! and Criminal Actions ................. 29 E. Civil & Criminal Actions ................... 29
F. Open Dumps ........................... 30
XI. UNDERGROUND STORAGE TANKS .......... 30 A. An Underground Storage Tank .............. 30 B. Relationship of Storage Tank Regulation to
Other Laws ............................. 30
XII. COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA or SUPERFUND) .................. 30 A. CERCLA's Program ...................... 31 B. Key Concepts and Definitions ............... 31
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Section Titl.___e Page No.
C. State Contract or Cooperative Agreement ....... 33 • D. How Clean is Clean ...................... ?,3
XIII. AIR POLLUTION CONTROL ............... ,. 36 ° A. Clean Air Act ........................... 36
B. Stationary Sources ... ..................... 36 C. Establishment of Air Quality Standards ........ 37 D. Air Control Regions ...................... 38 E. New Source Performance Standards (NSPSs) .... 39 F. Prevention of Significant Deterioration ......... 39 G. Defining Hazardous Air Pollutants ............ 39 H. Technology Based Emissions Standards ........ 40
IX. RADIOACTIVE POLLUTANTS ............... 40
Annex B - Industry Categories . .......................... 13
83 Contaminants Required to be Regulated Under the SDWA of 1986 ...................................... 17
Table of Environmental Related DOE Orders ................ 43
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ACRONYMS
AHERA - Asbestos Hazard Emergency Response Act AQCR - Air Quality Control Regions BAT - Best Achievable Technology
• BCT - Best Conventional Technology BPT - Best Practical Technology C,A_. - Clean Air Aet
' CEQ - Council on Environmental Quality CERCLA - Comprehensive Environmental Response, Compensation and
Liability Aet CWA - Clean Water Act DOT - Department of Transportation EA - Environmental Assessment
EIS - Environmental Impact Statements EPCRA - Emergency Planning and Community Right-To-Know Act FEPCA - Federal Environmental Pesticide Control Act
FIFRA - Federal Insecticide, Fungicide, and Rodencide Act FWPCA - Federal Water Pollution Control Act HSWA - Hazardous and Solid Waste Amendments MACT - Maximum Available Control Technology MCL - Maximum Containment Level MPRSA - Marine Protection Research and Sanctuaries
NAAQS - National Ambient Air Quality Standards NEPA - National Environmental Policy Act NESHAP - National Emission Standards for Hazardous Air Pollutants NRDC - Natural Resources Defense Council OPA - Oil Pollution Act
PSD - Prevention of the Significant Deterioration RCRA - Resource Conservation and Recovery Act SARA - Superfund Amendments and Reauthorization Act SDWA - Safe Drinking Water Act TSCA - Toxic Substances Control Act UST - Underground Storage Tank
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INTRODUCTION TO ENVIRONMENTAL LAW*
Environmental law is an area where there is a "system" of statutes, regulations, guidelines, factual conclusions, and case specific interpretations which relate to each other in the context of generally accepted principles established during the short history of environmental law. You really cannot understand environmental law by just reading and
' understanding the specific requirements of specific individual laws and regulations.
I. WHAT IS ENVIRONMENTAL LAW ¢
A. Definition
"The Environmental Law System is an organized way of using all of the laws in our legal system to minimize, prevent, punish, or remedy the consequences of actions which damage or threaten the environment, public health and safety."
B. The Legal System
The environmental law systems refers to the Legal System - the Constitution, Federal and State Statutes, Regulations, rules of evidence, rules of procedure, judicial interpretations, the common law, and criminal law, or restated;
1. U.S. and State Constitutions,
2. Federal and State Statutes and Local Ordinances,
3. Regulations promulgated by Federal, State, and Local Agencies,
4. Court decision interpreting these laws and regulations, k
5. Common law and criminal law.
C. Compliance Obligations
The Environmental Law system has about eight (8) general compliance obligations or regulator approaches. Almost all environmental laws use one or more of these compliance or obligation requirements. The eight are:
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* This is a condensation of the 600 page textbook entitled, "Environmental law Handbook" Eleventh Ed. by Arbuckle, et al., published by Government Institutes, Inc., 1991.
1. Notification requirements
Requires the notification of some government authority, of actual release of some pollutant, or the beginning of some activity (construction) which may have significant environmental impact.
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2. Point of discharge or "waste end" control
To prevent or minimize the release of pollutants, called emission limits- effluent, and maintain exposure limits.
3. Process oriented control and pollution prevention
To reduce the quantities, prevent the release, and minimize the hazardous characteristics of generated wastes. Practice protection by preventing the generation of wastes.
4. Product oriented controls
To assure that products are designed, formulated, packaged, or used so that th!_.ythemselves do not present unreasonable risks to human health or the environment
I_w!_n''_ either..... used or disposed. Examples: Asbestos or PCBs pesticide !/q}' J /
i,!!/ i_i:' 5. Regulation of activities
To protect resources, species, or ecological amenities. Examples: Protect owls in Oregon by stopping the activity of lumbering.
Protect wetlands by prohibiting activities such as building or fill-in. Predicted to be the regulation of choice because it works better than focusing on consequences.
6. Safe transportation requirements
To acceptably minimize the risks inherent in transportation of hazardous wastes or materials, oil or other potehtially harmful substances.
7. Response and remediation requirements
To clean up pollutants which have been released. Prevent the threat of release or pay the costs of clean-up.
8. Compensation requirements
To make responsible parties pay private parties or groups for damages done to their health or environment or to permit self appointed representatives of the public interest to recover for injury done to public assets.
" 9. Sue
If everything else fails, sue them.¢
II. LAWS THAT ESTABLISH COMPLIANCE OBLIGATIONS
The major federal environmental statutes do not work alone. There are other laws that supplement the federal statutes.
A. State Statutes and Re_]ations Implementing the Federal Statutes.
The Clean Air Act or Clean Water Aet established a federal state program where the state is given the opportunity to enact and enforce minimum federal standards.
1. States
Not prevented from setting up standards which are stricter than the federal standard.
2. Some state laws are independent of federal requirements.
California and New Jersey seem to have the most effective state sta_.t,tes.
3. Tax laws
A method of usiag tax to cause incentives to encourage environmentally safe activities. Example: gas guzzler tax on large cars.
4. Business regulatory laws
FTC and the States Attorney police business to regulate environmental claimsa
for products.
6. Environmental law and judicial decisions.
Court decisions on environmental law cases.
7. Common law
a. Theories developed in ancient England and still in use today such as: o
1) nuisance 2) trespass 3) negligence
B. Torts
A common law word used to devote a private wrong or wrongful aet for which a civil action can be brought by the injured party. Injury is a term of art meaning any of several things such as trespass which are not normally thought of as a physical injury.
1. Tort
Arises fror_ the existence of a generalized legal theory that a person (corporation) has a legal duty to conduct its' affairs so as to avoid causing harm to others. This duty is created by acts of commission, as well as omission. A corporation is, for most purposes, regarded as a legal entity-a person.
2. Courts
Say that there exists a duty of care. Each person must exercise this duty of care to avoid injuring someone or something, This duty of care is called the "Reasonable man" test. The duty of care expected, is that duty of care a reasonable man would have exercised under the same or similar circumstances.
3. Failure to Live up to this Standard of Care
May create a law suit (a cause of action). The law suit is a process where the person injured may seek restitution in the form of money, awarded as compensation, for the injury suffered.
4. The duty of care is not a contractual right.
5. Common Law Torts
The three most common environme_,tal law torts are the common law actions of:
a. nuisance
6. Nuisance ¢
A class of wrongs which occur when a person makes an unreasonable, unwarranted, or unlawh_l use of his own property (real or personal).
a. Types of nuisance: smoke, noise, dust, odors, airborne pollutants, water pollutants, and others.
b. Strict liability for nuisance. A process of removing ali the defenses to nuisance. The test is - If you did it you are guilty.
7. Trespass Old definition was - an invasion of another's right. Now a trespass is defined
as an injury to a person, property, or rights of another which is the immediate result of some unlawful act.
a. No intent - required (as far as determining the damages). The requirement of intent is normally limited to criminal actions.
b. Trespass to property- an injury or interference with possession.
e. Trespass to person - an unlawful act committed on the person of another. Mere words are not enough.
d. Trespass to reality - unlawful forcible entry on to property of another. This is the usual trespass used in pollution control cases.
8. Negligence (tort)
Must be 1) an act or omission, 2) a duty, (reasonable man), 3) breach of that duty, 4) an injury recognizable at law, and 5) proper causation.
a. Special negligence consideration - violation of statute or ordinance • negligence must show violation of the statue was the proximate cause of the injury. The
term proximate is a term of art.
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b. Strict liability - Handling dangerous substances. If defendant is engaged in ultra-hazardous activity he should bear the cost of injury.
C. Laws _at Enforce Pe,,_rmits,Prohibit.and Penalize
1. Permits- Allows the general law to be applied or customized to a specific activity.
2. Enforcement provisions of Federal and State
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c. Civil action - injunction.
d. Citizens civil action - someone x_ho can sue to enforce an environmental statute.
e. Criminal sanctions - for knowing or negligent violation of environmental statutes.
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D. General Purpose Heavy Duty Criminal Laws
1. Prcl_ibition Against False Statements to Federal Government 18 USC 1001
2. Mail Fraud Statutes 18 USC 1341 1343
3. Conspiracy Law 18 USC 371
E. Enforcement Optiovs Available
1. Do nothing,
2. Widespread publicity,
3. Revocation of existing permits and refusal to renew expiring permits,
4. Administrative penalty proceedings involving smaller penalties and corrective s,
action
5. Civil actions for monetary penalties and injunctive relief,
6. Criminal prosecution of the violator and sometimes of responsible management, personnel.
F. References
2. Laws
a. Environmental Statutes
b. Environmental Regulatory Glossary e. Code of Federal Regulations Title 40 d. Ali by Government Institutes, Inc., Gathersburg, MD, Tel. (301) 251-
9250
Discussion
The greatest environmental enforcement threat today is from the Federal Government. Of the Federal agencies, the Environmental Protection Agency (EPA) is the major force. Violations found by the EPA are referred to the Justice Department
q (criminal and civil). In FY90 the Justice Dept receiced 65 criminal referrals and 134 indictments. Since 1987 the Environmental Crimes section of the 2ustice Dept has indicted 703 corporations and individuals, and obtained sentences of $56 million in fines and 316 years in jail time.
Except for the National Environmental Policy Act (NEPA) nearly every environmental statute has criminal provisions establishing criminal liability.
An interesting case is United States v. DEC 912 F.2d 741 (4th Cir. 1990). Two high level civil servants at Aberdeen Proving Grounds argued that they, as federal employees, were immune from criminal prosecution under RCRA claiming sovereign immunity of the U.S., and that they were not "the person in charge" referred to in the environmental statue being enforced. The court convicted them and gave both of them two year prison sentences for failing to report the release of hazardous substances caused by the burial of paint cans.
The following is a discussion of each of the major environmental laws.
III. WATER POLLUTION CONTROL
A. History
In 1972 Congress enacted "The Federal Water Pollution Control Act (FWPCA)" and, "The Marine Protection Research and Sanctuaries Aet (MPRSA)."
I. FWPCA
In 1977 FWPCA was renamed "The Clean Water Aet (CWA)." In 1987 the CWA was extensively amended.
2. MPRSA
Amended in 1988 tO prohibit off-shore dumping of industrial wastes and sewage sludge, leaving dredge spoil the only large volume wastes for which ocean dumping is regulated instead of pr9kibited.
3. Oil Pollution Act
In 1990 Congress enacted the Oil Pollution Act. This act revised the CWA and added tight proscriptions on hazardous substances and oil discharges.
4. The Clean Water Act has 5 main elements:
a. A system of minimum national effluent standards for each industry.
b. Water quality standards.
e. A discharge permit program with enforceable limitations.
d. Provisions for special problems such as toxic chemical and oil spills.
e. A revolving construction loan program for publicly owned treatment works.
5. EPA
Historically EPA enforced the CWA by focusing on high volume conventional pollutants, such as bio-chemica1 oxygen demand, suspended solids and acidity and alkality.
6. NRDC
Eventually, in 1976- 1979 the Natural Resources Defense Council (NRDC) an activist environmental organization sued the EPA. The result of the suit was a court ordered settlement requiring the EPA to regulate the discharge of 65 categories of "priority pollutants" (containing at least 126 specific chemical substances).
a. Seventy percent of the nations' industries are affected by the decree.
B. Required Level of Treatment-Based Limits for "Existing" Direct Discharges
The changes to the CWA required that the effluents be limited by the "best available technology economically achievable" in 1983.
1. BPT
This standard has been revised to the "best practical technology (BPT)," however, the 1983 technical standards deadline has passed and the definition of BPT continues to cause problems of interpretation.
2. BAT
Now BPT is "the very best control and treatment measures that have been or are capable of being achieved". BPT is now known as Best Achievable Technology (BAT). Then it was changed to best conventional technology (BCT) as set on an industry-by industry basis. Only "conventional" pollutants are treated with BCT. "Conventional pollutants" biological oxygen demand, suspended solids, fecal coliform bacteria, and PH are now specifically included in the 1977 amendments to the FWPCA which then became the CWA.
3. Pollutants
The regulated pollutants not on the "priority pollutants list" (the everything else category) includes only about ten items.
C. Required Level of Treatment - Technology- Based Limits for "New Source"
1. Direct Discharges ,IL
A new facility or a major modification of a facility, the construction of which began after the publication of the CWA regulations, is dealt with separately.
2. New Source Discharges
Require the e0nsideration of various alternative production processes, operating methods, and in-plant control procedures. A variance is not available for new sources and an Environmental Impact Statement is required for a permit to discharge.
D. Permitting under the National Pollutant Discharge Elimination System NPOES
Any person responsible for a discharge of a pollutant into US waters must have a permit.
1. Definition
The definition of a pollutant is quite broad and has been interpreted to mean any waste material.
2. Discharge
The "addition" of any pollutant to any waters from any "point source."
3. Point Source
Difficult to define it means "any discernible confined and discrete conveyance -- from which pollutants are or may be discharged.
E. Permitting Procedures
EPA issues ali permits until the state takes over the NPDES program. In 1990, 18 states did not yet have l-ermitting programs. EPA can objectto a state permit, and courts can revise the EPA permit.
1. Permit
a) lt establishes levels of performance for discharge, and
b) It requires reports of failures.
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Acenaphthene Acrolein
Acrylonitrile Mdrin/Dieldrin
• Benzene Benzidine
Chlordane (technical mixture and metabolite) Chlorinated benzenes (other than dichlorobenzenes) Chlorinated ethanes (including 1,2-dichiuroethan, 1,1,l-ethane and hexachloroethane) :hlorinated naphthalene Chlorinated phenols (other than those listed elsewhere; includes trichlorophenols and
chlorinated cresols) Chloroalkyl ethers (chloromethyl, chloroethyl, and mixed eth,'rs) Chloroform
2-chloropheno Chromium and compounds Copper and compounds Cyanides DDT and metabolites
Dichlorobenzenes (1,2-, 1,3-, and 1,4-dichlorobenzenes) Dichlorobenzinine
Dichloroethylenes (1,1- and 1,2-dichloroethylkene) 2,4-dichlorophenol Dichloropropane and dichloropropene 2,4-dimethylphenol Dinitr0toluene
Diphenylhydrazine Endosulfan and metabolites Endrin and metabolites
Ethylbenzene Fluoranthene
1a2, The term "compound" shall include organic and inorganic compounds.
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Haloethers (other than those listed elsewhere; includes chlorophenylphenyl ethers, bromophenylphenyl ether, bis (dischloroisopropyl) ether, bis (chloroethoxy) methane and polychlorinated diphenyl ethers)
Halomethanes (other than those listed elsewhere; includes methylenechloride methylchloridc, methylbromide, bromoform, dichlorobromomethane, trichlorofluoromethane, dichlorodifluoromethane) °
Heptachlor and metabolites Hexachlorobutadiene
Nitrophenols (including 2,4-dinitrophenol, dinitrocresol) Nitrosamines
Pentachlorophenol Phenol Phthalate esters
Silver…