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Table of Contents

Table of Contents..................................1
INTRO TO ENVIRON LAW.........................................................................1 OVERVIEW OF ADMINISTRATIVE LAW INCLUDING STANDING.....................2 NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)....................................10 CLEAN WATER ACT .............................................................................19

WETLANDS, ENFORCEMENT, AND CITIZEN SUITS.....................................26 RESOURCE CONSERVATIONS AND RECOVERY ACT (RCRA)........................37 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT.......................................................................................42 CERCLA/RCRA PROBLEM, TOXIC SUBSTANCES CONTROL ACT (TSCA)........54 CLEAN AIR ACT.....................................................................................55 CLEAN AIR ACT, CAA MOBILE SOURCES, CLIMATE CHANGE, CLEAN AIR ACT PROBLEM.............................................................................................64



January 25 Introduction. Introductory Problem to be posted and discussed in class. Assignment: Casebook 1-60. I = PAT Impact is the result of population size, affluence, technologies. Three key issues that give rise to environmental impact illustrates factors, it is not a math equation Five Characteristics of modern environmental concerns: 1. Uncertainty of mechanism and effect we may know that there is pollution and people are sick, but still question of mech and effect.

2. Severe Consequences potential for huge oil spills, living near superfund sites, air pollution that causes asthma in broad swaths of people. This affects how we look at envron law. 3. Collective Risks 4. Irreversibility 5. Controllability A framework of problems! Tensions of environmental law: Cost/benefit analysis Local or national approach? Look aross media (land/air/water) or medium by medium (look at air, water, land separately, as US usually does). ENVIRONMENTAL VALUES 1. Environmental Values: Human Centered; Focus on living things; focus on ecosystem as a whole. 2. 3. 4. 5. Econ considerations Ecological perspectives Scientific info Issue of common pool resources


Overview of Administrative Law including standing.

Assignment: Administrative Law Statutory Materials; Casebook 115-119; 125-134; 139-150; 152-180; 1070-1101. CB 104-15 FILL IN INFO; cases and holdings TWO MAJOR GROUPS OF LITIGATION 1. Enforcement 2. Administrative Procedure Relevant statutes for AP litigation 1. Substantive Statute ex. CAA. Says what agency can do, procedure, promulgated rules 2. APA note: implementing legislation may change these a bit QUESTION ONE: Is there an intelligible principle? AMERICAN TRUCKING

Regulation said EPA must make a regulation to protect public health with an adequate margin of safety. D.C. Cir. remanded to EPA to determine an articulate level. SCOTUS reversed. Upheld statute as giving enough direction and not exceeding So long as intelligible principle, then statute will be upheld. The delegation was well within the outer limits of what SCOTUS has approved in prior cases. This theory has mostly been put to rest. HOWEVER DC Cir. still mentioned this. Be aware this could be an issue, although unlikely. QUESTION TWO: Was the APA statute followed for the needed procedure? INFORMAL RULEMAKING Sect. 553, APA Sect. 4; 1. PUBLIC NOTICE Fed Reg. Notice publication = notice 2. OPPORTUNITY FOR COMMENT Comments collected, agency reviews, agency responds in the final rule! There is an idea that agency is supposed to listen to this. 3. PUBLICATION WITH STMT OF BASIS AND PURPOSE final rule, respond to comments. Used to be very short, but now the stmt tends to be very long can be dozens or hundreds of pages. Extensive review of science, many responses to comments. 4. RULEAMAKING DOCKET -- whatever the agency relied on to come up with the final rule. Some statutes require that these are kept as an ongoing document. In other cases, isnt required. But if there is a challenge, then have to put together after the fact. So EPA generally puts these together. 5. JUDICIAL REVIEW: on the rulemaking record/mainly the docket; ACAD review 6. Additional statutes and regulations may impose additional obligations on the agency REGULATORY FLEXIBILITY ACT: The act was designed to make sure the agency at least looked at small business concerns and considered alternatives to achieve better impact on small business. Doesnt require a particular outcome, but gives courts another opportunity to review for ACAD. UNFUNDED MANDATES ACT: Requires consideration for whether the rule will effect state and local government. Goal: to ensure RM wasnt imposing lots of costs on local govt. EXEC ORDER 12866: Requires all the proposed reg be submitted to OMB Office of something and regulatory affairs. Cost bene analysis. Sounds good, but forces agency to look at non-economic things. Section 553(e) right of interested parties to petition to issue, amend or repeal a rule. Sets up a decision that the agency has to make. INFORMAL ADJUDICATION: Sect 555 Permits and Licenses FORMAL ADJUDICATION: Sect 554, 556, 557 Rule of discovery, evidence, ALJ, adversarial; agency judge and the agency

prosecutor. Includes penalty actions, injunctions. Agency can also have an appellate procedure. ALJ -> appellate body in the agency. ALJ follow sim outline to a fed court trial. Pretrial discovery, depositions, can request evidence, put on the record. NOTE rules of procedure are usually similar to FRCP, but may be differences. Each agency has its own. NOTE all of these things are also appealable to the art III courts. FREEDOM OF INFORMATION ACT Sect 552: You can request the docs, and unless otherwise exempt from production for some reason, they have to give them to you. Exceptions are in 522(b): ex. national security, records for law enforcement, some trade secrets, Be aware of this! QUESTION THREE: PROPER DELEGATION OF AUTHORITY? A. Is statute Constitutional? Usually under Commerce Clause LOPEZ Guns at school are not interstate commerce, too local. Cant have federal law re this! part of issue was the court will often look to findings when Congress made the statute and Congress had not done any findings re: commerce. MORRISON Re; VAWA. Congress created private cause of action authority was commerce clause. Not an economic activity! Even though Congress made findings! But Court said more likely to uphold fed laws that reg economic activity. GDF v. NORTON 5th Cir invertebrates in TX. Court upheld commerce auth cos the reasoning was that even if individual species didnt satisfy, you can aggregate the acts and the cumulative effects can show comm clause is satisfied. Not every specific instance of something regulated has to be of significance to interstate comm as long as agg effects are. SWANCC CWA issue many wetlands are very near bodies of water that cross state lines. BUT in SWANCC isolated wetlands that dont flow. Issue: is this permissible comm clause exercise. Here, the court ducked the Const. question! They looked at the statute and concluded that CWA did not mean to go to fullest extent of comm clause authority. Congress didnt mean to regulated isolated wetlands so struck the reg on that. Const. constraint is a real constraint at least in the theoretical level. PAY ATTENTION just in case even if SCOTUS hasnt addressed.

QUESTION FOUR: JUDICIAL REVIEW APA JUDICIAL REVIEW SECT 700s 702 RIGHT OF REVIEW: waiver of sov immunity; can sue govt under APA 703 VENUE: Look to the statute sometimes may be D.C. Cir.; other times where action occurred. ALSO many environmental statutes have deadlines. Standard statute of limitations 6 months 704 only final agency action is reviewable. Related to Exhaustion. For resource reasons and to ensure action has fully ripened into a conflict. 706 SCOPE OF REVIEW: Sect 2A: Can set aside for ACAD or otherwise not in accordance with law. Q1: Is there law to apply? Some agency decisions are at its discretion ex. prosecution. Can be reviewed under Constitutional concerns, but not APA. Q2: How searching is the review? OVERTON PARK 1971 the Hard Look Doctrine. Issue DOT building road in TN. Court decided that alternatives had not been examined. Court said was procedural issue, but overturned the substantive decision. Hard Look Doctrine did agency have adequate support for its decision? Not just were the procedures followed. Agency review is on the record! Administrative cases usually require submission of the record. Then MSJs. No basis on the record! Agency says look, here it is. Also questions about what needs to be on the record. Court will sometimes open up a bit of discovery to ensure everything is on the record but courts are loath to do this! VERMONT YANKEE Challenges to licenses from NRC. Argument P challenged issuance cos NRC didnt consider alternatives to nuclear power in terms of conservation, etc. Much more deferential standard! FILL IN! Both cases are still good law cases will cite to either. CHEVRON Issue: definition of single source Rule created a bubble to include all smoke stacks at a facility rather than separately.

1. Clear or ambiguous? Here, they didnt. 2. If Ambiguous, was the agencys interpretation reasonable? A permissible interpretation. Fill in the gaps delegated to the agency. And there is a bit of a sliding scale courts may look a little harder if the stmt of basis and purpose is lame, or if the reasoning seems off. They may look for a procedural defect. If POLICY STMT: CHRISTIANSON v. HARRIS CTY Overtime pay case in Houston. Rule about employees scheduling comp time instead of cash payment for unused vaca time. SCOTUS said this was not a policy document, it had effect of regulation. APPALACHIAN Question about how oftn you have to monitor your emissions. So you have a stack. EPA said you have to check the emissions x times. And since youre self-monitored, you could just adjusted how you operate so CAA emissions look great! So EPA says, ok. Here is a problem. So EPA tells agents to continuously monitor so will register when you go above the level. Business hated. Others thought essential. Cir says you should have had a regulatory process, this is not a guidance document. Regulators were treating it as a rule, had impact of a rule. STD OF REVIEW FOR ADJUDICATION (formal and informal) Substantial Evidence but is essentially the same as ACAD. Applies to the fact-finding done. But court will say has to be based on substantial evidence on the record as a whole. So if you have two studies one says good for environment, other says bad. Agency can say bad. Just needs to have subst evide on record doesnt have to include everything. Court is not supposed to make its own findings. QUESTION FIVE: STANDING Constitutional Stding courts can adj cases and controversies CONSTITUTIONAL STANDING THREE PART TEST 1. Injury in Fact Must be concrete and actual/imminent Ps often lose cos ISSUE OF AESTHEIC INJURY It just looks bad! Doesnt make you sick. Doesnt cost you money. Just ugly! SIERRA CLUB v. MORTON

CB 105 FILL IN Ski resort near Sequioa national park Injury alleged ski resort will ruin the park and aesthetic experience for them. Court says this is OK. But Court says we like econ injury better. BUT court threw it out anyway cos Ps didnt show they used the area themselves. Other very famous part Douglas dissent: Trees should have standing! And just a note, there are federal agencies that are trustees for trees and birds and such. LUJAN v. DEFENDERS OF WILDLIFE P concerned about overseas species The P didnt have specific plans to revisit the land, so Scalia throws it out. Dissent kind of makes fun of this. Like as long as you have a plane ticket you can sue. LUJAN v. ??? FILL IN Going to lift mining regulations Again, did they plead specifically enough? This was a general policy not permission to build a mine. Only one member of NWF used the land and he didnt specify what part. FN 7 procedural rights are different from final agency action. MASS v. EPA The state of MA challenged EPAs decision not to regulate GHG. Several levels of complexities, but court upheld the challenge. Two basic grounds: 1. Massachusetts was seeking to protect a procedural right to have its petition heard. See FN7 in NWF. There was standing to protect the proc right if there is some possibility that the requested relief will prompt the injury causing party to address the alleged harm. Softening of the standing requirements when challenging a procedural rights. 2. State was a plaintiff. Court said it would give special solicitude to states cos have a broader set of interests. State was alleging that global warming was ruining its beaches! Suggestion that these is a looser std for states that individuals. A bit of a stepping back from the Lujan cases but an open question if Mass will be a fairly narrow exception. 2. Causation/Fairly Traceable Least litigated. Whether P can show his injury is fairly traceable to the injury. Can P show that injury is occurring OR likely to occur? Not a high bar to reach thats why not often litigated.

3. Redressibility Can the court do anything to fix the injury? LUJAN v. DEFENDERS OF WILDLIFE (Species Overseas case) Came up cos case brought against the dept of the interior. Req under ESA that agency proposing to take the action has to consult with the DOI and they sued DOI rather than the agency that was supposed to consult with the DOI. Wrong agency, so couldnt do anything. The injunction was not really against DOI against other agency. ORGANIZATIONAL STANDING Two prong test. 1. Whether the members themselves would have stding. At least one member has to have stding. 2. Whether the interests the agency is seeking to protect are germane to the organization. Ex. environmental agency protecting environment. An econ organization with nothing in the charter re: environment cannot sue. Standing evolves through the course of the case - follows same level of proof for the rest of the case Must make a good faith allegation re: standing have to submit affidavits and be able to satisfy MSJ, dont yet need preponderance of the evidence At trial, if issue still not resolved, have to put on enough evidence to show standing by preponderance of the evidence. Parallels all other factual issues in a federal case. PRUDENTIAL STANDING Idea that Court/Congress can limit standing more narrowly than the Const. Most well known is... ZONE OF INTERESTS TEST P should have stding under a statute if raising issues related to the statute. BUT BENNET v. SPEAR ESA case re: water being released from dams. Farmers suing re: harm to farming SCOTUS ESAs citizen suit provision allowed it. It said that ANY person can sue. So that means any person, not just in zone of interests of the statute. Also found that the ESA requires that agency consider best available data and economic impacts within the statute. Despite the many decisions that say econ considerations should not allow. OTHER PARTS OF CONST STANDING RIPENESS Dont have standing yet but might later. Could be not final agency action or action is not sufficiently concrete.

OHIO FORESTRY Forest laws allow for forest service makes broad stmts about the forest i.e. support more or less cutting. Then there are individual hearings about individual forests. So court said no immediate on the ground impact on specific trees. So have to wait until there is a specific group that will be cut down. Not ripe yet. Wasnt about to have an immediate impact on the ground. MOOTNESS Where you have standing, but it goes away. Injury disappears cos eliminated. LAIDLAW FILL IN: relates FOUR MAJOR APPROACHES FOR ENVIRON STATUTES TO IMPACT BEHAVIOR Statutes may combine approaches. 1. Market Approaches Idea of better information disclosures. EPCRA have to disclose what you discharge, then environmental groups can shame polluters. 2. Common Law liability Nuisance, trespass, etc. 3. Government Regulation This is focus of class 4. Liability Insurance Idea that people will be more careful to keep insurance rates lowers. Ex. to handle hazardous waste. Three Models of Federal Involvement 1. Federal Financial Assistance If you do particular things (esp directed at states), you get money. The biggest fed program was the one to convert all the wastewater discharge built plants to use wastewater treatment plants. But if you dont do it, you dont get the money. 2. Federal Control Feds just issue rules and thats the law! Fed govt passes reg, forces, etc. no involvement of local government and this will prempt state and local law. Most common one well study mobile source rules for cars and trucks under CAA 3. Cooperative Federalism DOMINATES ENVIRON LAW. A system where fed pass certain basic threshold requirements and allows states to figure out how to achieve those limits. Usually when it lets the states do this, there will be requirements on all aspects. Ex. CAA.

Fed government has a check list enforcement agency, RM is notice and comment, have enforcement authority, have a crim laws, civ laws, etc. If you get through the whole checklist, feds say, OK, go ahead and enforce. BUT Fed still retains full enforcement authority as well. So feds are constantly looking over the shoulder of the state and can take over if states screws up or bring own enforcement action.

National Environmental Policy Act (NEPA).

Assignment: Casebook 857-934. NEPA Statutory Readings (including Council on Environmental Qualitys NEPA regulations in Statutory Supplement); Statutory Supplement 1165-1176. NOTE: Sect 309 of CAA of 1970. Permits EPA to refer a matter if based on an EIS, EPA thinks an agencys action will have serious adverse environmental effects, can refer the matter to the CEQ. The Section 309 process its in the CAA, but applies to NEPA stuff! CB 858 FILL IN IF NEED FILL IN EXACT LANGUAGE FROM STATUTES Section 101: Big, broad sweeping terms. It is the continuing policy of the Federal Government the use of all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. Section 102(2)(C): Requires all federal agencies to prepare an environmental impact statement on major federal actions significantly affecting the quality of the environment. Must include a detailed stmt of environmental impacts, alternatives to the proposed action, and any irretrievable commitments of resources involved. DEFINITIONS Look to Council CEQ regs! Focus on these for our class! HOW TO SUE: After agency makes decision, can sue under APA if ACAD/procedural defect. If something wrong with review process then can take to court a NEPA procedural problem. Cant just sue cos a crummy EIS comes out. Section 102(2)(C)(i) Agency has to come up with a piece of paper for an environmental review that describes the action, shows some choices, adverse impact, etc. Doesnt mean it has to be bound by it, or has to make the more environmentally

friendly choice, but has to do the review. CALVERT CLIFFS D.C. Cir. 1971 FILL IN Environ group challenging procedures of NRC to comply NEPA Proposal for action issuance of the regs, not the permit Court emphasizes the Fullest extent possible language means agency has to consider environmental concerns at every important stage. Balancing must be done! Also need detailed statement! Serves as evidence that things were considered! Cant just accompany agency has to read and consider it! Cant just be written either. Has to be written by the person in charge of the action. Important cos later agency thought EPA should do it. No. Can talk to EPA, but must do it themselves Alternative measures 102(2)(E). But not as much attention has been paid to this in later times. Calvert Cliffs kind of leaves open the possibility that NEPA could be a substantive statute. Doesnt evolve this way, but could have been read that way. Calvert Cliffs Congress passed this law, and were going to back this up. We mean it! This is across the board and it will affect how agency works READ IT AGAIN! STRYKERS BAY SCOTUS 1980 NEPA is procedural not substantive. Only role for court is to make sure HUD did the studies. Agency doesnt have to tilt to environmental concerns, just consider. MARSHAL DISSENT hard look, did they consider the environmental aspects? Every brief from government now says procedural, only have to look at environmentally preferably decision, not necessarily chose it. NEPA has still changed actions, but the push to make agencies chose more environmentally friendly options is not applicable. Section 102(2)(C) Cases really turn on the words! Legislative EIS cant really require cos courts hardly ever find standing. There was an argument that appropriations needed an EIS but SCOTUS said no. Sort of last nail in the coffin for legislative EIS.

1. IS IT A FEDERAL AGENCY? Every Federal Agency Sect. 1508.12 of CEQ Regs All Agencies of the Federal Government. Tells you what is out, but what is in? Basically all executive agencies. Independent agencies usually say they are not a part but will do it out of the goodness of our hearts! 2. IS IT A MAJOR FEDERAL ACTION? CEQ Reg. 1508.18 Four Categories 1. Policy formal policy 2. Plans formal plan 3. Programs 4. Projects specific projects Also can be a failure to act, but hard to get standing here again. The Reg includes that it must be reviewable by a court. As a practical matter, hasnt stuck that well. Proposal - Sect. 1508.23 Need to look at timing and scope. Goal and action will be taken, but not there yet. Needs to be far enough along. Agency has a goal and actively preparing Not a lot of law passed the CEQ regs, cos agencies dont get sued til after the decision. But if advising an agency, would want them to do the EA before the decision made. Before an irretrievable act, before alternatives are closed. SIERRA CLUB v. PETERSON Forest service does oil and gas leasing. Some leases have no surface occupancy stipulations Needed further permission from the agency for the leases to go forward, but in the meantime, agency allowed roads and etc. Agency said too early to do an EIS. But the agencys decision to grant leases w/o NSO stuff, you are still having an impact. There were potential effects. Court is not going to just look at what agency says going to look at what is actually happening. There were disturbances on the land! The decision to allow surface disturbing activities has been made at the leasing stage and under NEPA, this is the point at which the environmental impacts of such activities must be evaluated. Need to eval at the point of commitment.

The Department made an irrevocable commitment to allow some surface disturbing activities, including drilling and roadbuilding.. You can delay if the agency reserves the authority to preclude all activities til EIS AND prevent if environ consequences are unacceptable. CONNER have to eval both the road building and the tree cutting cos wouldnt to either without the other. (FILL IN HERE is this a case or dissent?) 3. WHAT IS THE SCOPE OF THE ACTION QUESTIONS OF TIMING AND SCOPE Cannot sue unless agency has decided on an action SCOPE: Is it narrow or broad? KLEPPE v. SIERRA CLUB 1976 SCOTUS Government has studied the effects of a nationwide coal leasing program. Said would evaluate regionally when we have a proposal for regional or local lease. Sierra Club says want a statement about the North Great Plains region. Court held Agency can define the scope of its program. Deference to agency about the scope of the action. But need to know that when agency says we have a national wide look, and then gonna lease site X in UT. Part of looking at site X, may need to look at effects on region. But agency can pick the scope of the study. Again, from time to time people will go to agency and say you need to look at this in a wider/narrower way. Courts have very consistently said lots of deference to the agency. SCOPE: 1508.25 FILL IN TIMING: 1502.5 FILL IN Deference to agencies re: scope, but it matters that agency takes certain IMPACTS into account. AGENCY MUST LOOK AT: Have to look at connected actions like the road and timber. 1508.1 Cumulative actions if reasonably foreseeable that there will be multiple leases, have to consider this! 1508.7 Other related actions FILL IN Since govt has to look at cumulative, etc. impacts, if govt gonna use site X,

may have to do a regional assessment anyway if reasonably foreseeable that multiple leases will be granted. METCALF CB 896 FILL IN Agency cannot make decision about the action before the review/EA Major piece of this Have to figure out what you want to do and how. And outside group you can challenge if they didnt look at cum, collect, etc. MAJOR v. SIGNIFICANT CEG regs tests are interrelated Major 1508.18 Significant 1508.27: need to consider context (ex. society, LT, etc) and the intensity (ex. toxicity). Ten factors of intensity! FILL IN Major re-enforces significant, but does not have an independent meaning CASE LAW look at these together. If one, courts generally find the other. NOTE: Federal Handle Issue If you need a small piece of fed land to build a mall the action is the small piece of land! Court generally says it will look at FEDERAL ACTION not private action. Size and impact matter about whether need an EIS agencies tend to have regs re: what is a major project. FOR OUR CLASS know major and significant go hand in hand and re: small handle issue SIGNIFICANCE HANLEY prob not good law anymore, but still cited? FILL IN For significance -- controversy must be over impact, not the project. SENDIMENTATION Ex. Cannot break up a 40 mile hwy into one mile pieces to avoid EIS. But if the one miler has independent utility, then could look at alone and do EA. MITIGATION Mitigated FONSI If a project is major and significant, but you mitigate the impact until not significant, then just need EA. There was a finding of significant impact, but now FONSI. Changed the project essentially. HUMAN ENVIRONMENT

CEQ 1508.14 FILL IN Direct and indirect effects lots of impacts because environment is broad Not a lot of Qs re: how broad METROPOLITAN EDISON Three Mile Island re-opening case SCOTUS can include psychological impact BUT must have physical impact first to get there. RISK there is case law, but just know if there is a physical effect/impact, have to look at it POSITIVE EFFECTS: still need a review. Sometimes EPA does not need to do a NEPA review, but otherwise yes! EFFECTS CEQ has guidance on Environmental Justice DOT v. PUBLIC CITIZEN NAFTA/Mexico trucking case 2004 SCOTUS Effects: include (a) Direct effects, which are caused by the action and occur at the same time and place and (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Sect 1508.8 Then case narrows if have a concern, must bring it to the agency. Cant take it to court post action by the agency. Also FMCSA had no authority to prevent cross border trucking. CENTER FOR BIOLOGICAL DIVERSITY v. NHTSA 9th Cir. 2008 Final rule was ACAD because did not include an analysis of the benefit from carbon emission reduction where there was evidence that this could be quanitified, despite differences in the exact number. EPCA does not limit NHTASs duty under NEPA to asses the environmental impacts including impact of climate change. Goals of statutes are complementary EA insufficient! Did not evaluate the incremental impact emissions will have on climate change; does not discuss the actual environmental effects; global phenomenon does not release the agency from its duty to asses the effects of its actions on global warming. Must provide contextual info regardless of what agency or person undertakes other actions. Also insufficient cos did not consider a range of alternatives. NHTSA must make a new EA or an EIS. Petitioners raised a substantial

question about whether CAFE stds MAY cause significant degradation of some human environmental factor. In light ot the record NOT self-evident that .2% decrease is no significant. EA does not provide a stmt of reasons. An improvement over a prior rule does not mean that it will not have a significant effect on the environment. Record insufficient. ENVIRONMENTAL ASSESSMENTS If agency not sure if action will be significant can do EA. In general, a shorter EIS. Not a lot of info in CEQ re: this. Can be 6 pages to full blown EIS, depending on agencys procedures. May or may not requiring scoping (allowing input). Can put out final EA and take comments before doing the action. Not review by EPA MUST STILL TAKE FEEDBACK but not as formal as EIS CATEGORICAL EXCLUSIONS Corps of Engineers ex. there is an exclusive that if you are putting a personal dock in water, dont need a permit/NEPA. No connected impact, no cumulative effect. If you set up an exclusion, people can comment on the reg, just like any other reg. MUST EXCLUDE EXTRAORDINARY CIRCUMSTANCES. ex. a senstitive area SO: Step 1 agency looks to see if action fits a categorical exclusion. If no Step 2 choose EA or EIS If sign impact and major action => EIS if not or not sure => can do EA. If find sign impact, then EIS. If not significant => FONSI Also Record of Determination: ROD: says did EIS, these are the alternatives, and were doing X. HEART OF EIS = ALTERNATIVES ANALYSIS ADEQUACY Sect. 1502 Must include 1. Summary to facilitate public review 2. An explanation of the purpose and need of the action 3. Alternatives description and comparative assessment of the alternatives. Must look at feasible and reasonable alternatives 4. Description of the environment that will be affected 5. An analysis of the environmental consequences of the proposal and alternatives

LITIGATION centers around adequacy of the agencys assessment of alternatives and the scope and detail of the analysis of environmental consequences. VERMONT YANKEE Will set aside agency decision only for susbtantial procedural or substantive reasons mandated by statute, not simply cos court is unhappy with the result. The detailed stmt of alternatives cannot be foudn wanting simply cos the agency failed to consider every alternative device ad thought concievable by the mind of man. Concept of alternatives is an evolving one agency will have to look at more or less depending on how well they are known or understood. A couple wrinkles! 1. Youre the forest service. Studying how much land to designate as wilderness. Do we have to go acre by acre? No. But you have to pick a few places along the spectrum 100%, 75%, 50%, 25%, etc. You dont need to have 65 million alternatives. EAs often dont look at as many alternatives as EIS. Usually EAs just look at one other alternative and the no action alternative. No action is not always clear. If trees are generally cut then is no action no cutting, or same cutting? Schiffer why not look at both? The law is have to look at no action and reasonable and feasible alternatives. SIERRA CLUB v. U.S. ARMY CORPS OF ENGINEERS They said no fish, even though everyone agreed there were fish. Court says no dice army corps! Your analysis must be related to the facts, and have to make some effort to get the facts. Not a lot of cases, cos most agencies dont do this Again big msg its an important statute, easy to get caught up in the weeds. But keep in mind we want effective environmental analysis and opportunity to comment. FILL IN 903 908 (This is done above but its emphasized so look again?) EIS 1. have to be ADEQUATE

2. Consider ALTERNATIVES 3. Have adequate ANALYSIS Supplemental Environmental Reviews MARCH v. OR NATL RES COUNCIL Agency released stmt re: resources; P sues new study shows greater impact to environment. -- need to use rule of reasonableness and must be some agency action left to be done. 1. Is the new data significant? 2. Does the agency have anything left to do? I.e. if there remains a major federal action and the new info shows this will affect the human environment ALSO must present new data to agency BEFORE you go to court. Also if there is a dispute re: question of fact about which doc is correct, court will defer to agencys expertise TIERING agency first looks nationwide, then on a site specific basis CEQ 1058.9-.13 FILL IN EMERGENCY PROJECT ex. Hurricane Katerina Fill in? INJUNCTIONS For NEPA cases, P often wants the action stopped need temp restraining order or prelim injunction WINTER v. DEPT OF NAVY SCOTUS Have to show certainty of harm, not just probability of harm somewhat heightened the std. Public interest must also be furthered here, its in favor of the Navy. BUT military interests will not always trump other considerations. PRELIMINARY INJUNCTION TEST P must establish 1. Likely to succeed on the merits of the claim 2. Likely to suffer irreparable harm in the absence of relief 3. Balance of the equities tips in his favor 4. Injunction is in public interest An extraordinary remedy! o NEPA claims are based on the administrative record (and remember, most agencies put together the record AFTER they get sued) o Look at the CEQ guidance o Categorical exclusions A way for agencies to avoid env. reviews

o Climate change Plaintiffs say that when an agency is preparing the env. statement, they need to consider climate change Last week, CEQ published draft NEPA guidance on considering climate change/greenhouse emissions. These basically say that if the project creates 25,000 pounds of greenhouse gases, it needs to be considered o International Impacts Its a misnomer because its about whether the agency has to consider if an international action will have effects outside the US. The state department says that gathering that kind of information is sensitive and could upset other countries. The Carter statement says that if an action done outside the US but has effects IN the US, then it has to be considered

Clean Water Act

Assignment: Casebook 643-702; 707-748; 762-768. CWA Statutory Readings. 1. Set technology based discharge limits to facilitate enforcement 2. Imposed a nationwide permit system while retaining water quality stds 3. Expanded Fed role in financing construction of municipal trmt facilities Ocean Dumping Act: prohibits all dumping of waters in the ocean unless have a permit from EPA (nondredged materials) or USACE (dredged materials) Coastal Zone Management Act: financial assistance to encourage states to adopt federally approved coastal management plans Safe Drinking Water Act: regulates drinking water from public water systems. KINDS OF WATER 1. Surface Waters: waters that flow over land 2. Ground Water: many towns drill into wells for drinking water 3. Wetlands: halfway surface water, halfway land POINT SOURCES Pipes, tubes, ditches, discrete conveyances NONPOINT SOURCES Surface waters that move pollution POLLUTANTS

Conventional nutrients most problems caused by ag pollution are nutrient issues. Fertilizers flow into rivers and results in distorted algae growth hyper growth causes algae blooms that suck up all the nutrients and kill the entire ecosystem creates toxic dead zone. Non-conventional usually developed by technology not natural WASTEWATER TREATMENT Publicly Owned Treatment Works: collection area for some sort of municipal entity and the treatment plant that discharges treated sewage into surface water Sewer Systems: 1. Storm Sewers: collects water as it hits the street and flows into larger bodies of water 2. Combined Sewers: Raw sewage also goes through these 3. Raw Sewage Sewers Rivers and Harbors Act of 1899 Focus: people can travel via rivers Barred unpermitted discharges of refuse into navigable waters. CWA Section 301: Effluent Limitations Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. 1. Discharge of a pollutant: Section 502(12) (a) any addition of any pollutant to navigable waters from any point source (b) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. (a) Point source Why focus on point sources? Easier to identify who is responsible, easier to measure the amount of pollution coming from a factory and fix it, when statute passed ppl thought industrial pollution was the problem. (b) Navigable waters Why focus on this? Commerce clause issues Navigable Waters: section 502(7) the waters of the United States, including the territorial seas Courts are SPLIT re: whether authority extends to discharges to

groundwater or deepwell injections. US v. RIVERSIDE BAYVIEW HOMES SCOTUS, 1985 ADJACENT WATERS: court looked to legislative history agreed with Corps of Engineers that wetlands are part of an overall ecosystem that connects to navigable waters. If property is part of a wetland that actually abuts on a navigable waterway, need a permit. SWANCC Land only seasonally filled with water, migratory bird would come, but not constantly filled or near a body of water. Nexus Issue: water not connected to other waters Birds = Commerce? Court says NO. Refuses to Chevron II to the agency even if people travel to see the birds. COURT SAYS will NOT go to the very limit of what the Commerce Clause allows unless Congress explicitly says we mean to go to the fullest extent. NOTE: Congress could overrule court on this cos SCOTUS didnt rule out that comm clause could reach this body of water. RAPANOS Dude filling wetland near manmade ditches that flowed into tributaries into streams into rivers, even though state and EPA said dont do that. EPA sues for injunction. COURT: Makes distinction b/w WATER v. WATERS. Water fleeting and not fixed. Waters something more permanent, like a body of water. TEST OF NAVIGABLE WATERS POST RAPANOS AND RIVERSIDE -- SCALIA TEST 1. Adjacent channel must contain a water of the US relatively permanent body of H2O connected to trad interstate nav waters. 2. Continuous surface connection so hard to tell where wetland ends and water begins -- KENNEDY TEST Whether there is a significant nexus b/w the wetland and the navigable because the point of CWA is to protect navigable waters. If navigable water is being impacted then wetlands fall under regulation. Wetlands must alone or in combination with similarly situated lands in the region significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable. -- STEVENS TEST The army corps determination that wetlands adjacent to tributaries of navigable waters preserve the quality of our Nations waters is reasonable and should be upheld under Chevron.

POLLUTANT ADDITION OF ANY POLLUTANT NATIONAL MINING ASSOCIATION v. ARMY CORPS OF ENGINEERS D.C. Cir. 1998 Rule that regulates all fallback is over broad. Incidental fallback is a net withdrawal not an addition, so cannot be an addition. Can regulate some re-deposits but not any redeposit. SOUTH FLA WATER MANAGEMENT DIST. v. MICCOSUKEE TRIBE OF INDIANS SCOTUS, 2004 South Florida pumps phosphorus water from a canal into a reservoir a short distance away only separate cos of man made barriers. Micosukee says need a discharge permit NPDES National Pollutant Discharge Elimination System. ISSUE 1: South Florida says not adding anything. Only a point source if pollutant originates there. COURT SAYS NO. Point source is defined as a conveyance. Need only convey pollutant to navigable water doesnt need to be the original source. ISSUE 2: Is this a navigable water? South Florida: Waters should be viewed as unitary for purpose of NPDES. Basically, you can pump water from one place to another and as long as you dont change the water, its okay. NOTE: This leads to bad results (you could pump dirty river water into another river) COURT SAYS not gonna address, govt raised this argument too late! Can argue on remand. CWA Section 402 Permit system any discharge to navigable waters needs a permit! Permits for individual dischargers that comply with regulations. For point sources! Cooperative Federalism Approach: EPA starts as permitting authority. But can delegate enforcement and regulatory authority to the states. State submits a big application to EPA to say it has comparable state enforcement, regulations, etc. under state law. EPA goes through checklist if state meets all requirements, EPA can approve, and state is the administering agency. EPA and Feds retain concurrent authorization of enforcement and maintain review authority over state actions. EPA can review and enforce the state law cos it is incorporated into fed law.

PERMIT REQUIREMENTS 1. Specific Effluent Limits 2. Monitoring and Reporting Requirements that Depend on the Pollutant. 3. Once you gather the info and submit to the state/fed, they upload it. They have the right to look at it, and the right to bring an action. These are admissions, so cannot challenge your own admission in court. Cases often decided on MSJ cos D cant challenge. 4. Qualitative Requirements: ex. you cannot put a sheen on the water (*Narrative Requirements*) 5. Some have Procedures for Certain Chemicals 6. Requirements about Emergency Procedures CWA has a lot of specific stds for certain industries. Mostly technology based stds, but are including more water quality stds over time. Tech based still more prevalent. Why tech based? Why water quality based? Tech easier to enforce, can be hard to tell whos contributing to what pollution down stream, easier to reg industry than individuals, simpler for companies with multiple plants in multiple locations, across the board std, Water Quality: Might be easier to game the system, can target resources/improvements where its needed, What about in terms of equity, which is better? Water quality seems like a better driver to get to the point where everyone has the same quality of water. Also More difficult to adjudicate plant by plant. Easier to use one rule for all. TOXIC POLLUTANTS Idea these should be reduced regardless of costs -- priority pollutants Special effluent levels tech side and H2O quality side. BIGGEST ISSUE: Sewage Collectors POTWs have different levels of treatment different set of regulatory and statutory provisions. Three levels of Effluent Levels 1. Primary settling. Some kind of chem to pull all solid material into sludge. Reg re: this and how to dispose of it. 2. Secondary process of microbial digestion. Microbes convert the dissolved pollution in the settling into solids. Further settling. 3. Tertiary Filtering process, bubble water through a sand layer to get rid of almost all remaining pollution. WHY IMPORTANT?

Two overriding concerns related to indirect dischargers: 1. POTWs gets NPDES permit cos directly discharging. POTW is set up to collect sewage 2. Factories that discharge into the POTW. (a) Pass Through when factory discharges something into the POTW that it cannot filter out/handle. Just ends up in the navigable water untreated. FOR THIS CLAIM: discharge must pass through POTW and cause POTW to violate the NPDES (b) Interference when the factory discharges something that interferes with POTW usually something that kills the microbes. PRETREATMENT PROGRAM Section 307 Requires pretreatment of indirect discharges to control pollutants that are not susceptible to treatment by POTWs. EPA regulations prohibit the discharge of pollutants that might interfere with or pass through POTWs and require local pretreatment programs. NOTE: Can have a claim against indirect discharger brought by POTW/State/Feds for pass through or interference even if not violating the pretreatment permit! Problems POTW and factories are often colluding, state may be slow to respond if discharger is an important source of employment. WATER QUALITY STDS Section 303 Complicated what, how, when to measure? What is clean? Set by the state with some fed guidelines. Stds based on the use of the water supply. State designates the use, then comes up with the limits. EPA STD: swimmable/fishable (section 101(a)(2)) Requires at a minimum that water quality stds meet the fishable/swimmable goal of Sect 101(a)(2) unless that would result in substantial and widespread economic and social impact. States also must establish antidegradation policies to protect existing uses of water and prevent deterioration of waters that exceed the f/s std unless necessary to accomodate important economic or social development. Act provides that you come up with std, the total pollutant load the receiving water can take for the use, then the total load (TMDL total maximum daily load), then take that load and divide it by all the folks putting the pollutant, this is the max amount each can put in and this goes in the NPDES. NOTE: Toxins are treated a bit differently states have to designate which bodies of water have toxins. A bit different, but incorporated into NPDES to control it. Section 303 list

State makes list of water quality stds, sends EPA a list of who is not meeting the stds. If NOT meeting TMDLs, factories get stricter stds ISSUES: how to allocate the TMDLs among dischargers, often not meeting TMDLs cos of nonpoint sources Water quality stds can force states to look at nonpoint sources, cos even if no point sources may not meet TMDLs. States have authority to go after nonpoint sources. 303(d)(1)(A) requires states to identify those waters for which effluent limitations for nontoxic pollutants are not stringent enough to achieve water quality standards 303(d)(1)(C) requires states to establish TMDLs of these pollutants at a level necessary to implement the applicable water quality standards subject to EPA review and approval 303(d) EPA has a duty to establish TMDLs for states that fail to meet their obligations under this section. PRONSOLINO v. NASTRI 9th Cir. 2002 CWA is best read to include in the 303(d)(1) listing and TMDLs requirements waters impaired only by nonpoint sources of pollution. SECTION 319 States are req to look at stds for nonpoint source pollution. If states come up with a plan, there is a sometimes theoretical promise of feds giving them money. CONCENTRATED ANIMAL FEEDING OPERATIONS Has teeth unlike other nonpoint statutes. SECTION 401 Req applicants for a permit that may discharge into navigable waters to get a certification from the state that this will comply with state law or contain safeguards to prevent it. PUD NO 1 v. WASH DEPT OF ECOLOGY SCOTUS 1994 Upheld 401 as a flow requirement to protect fish species in the water. Wasnt about the content, just the amount of water flowing through. 401 regulates the activities not just the discharge. BROADER READING than generally given to 402.

401 ANY discharge 402 CONTENTS of the discharge/pipe ANTIBACKSLIDING Section 402(O): Act and regulations prohibit permits from being issued that are less stringent than prior permits. ANTIDEGRADATION Section 303(D)(4)(b): Cannot permit use that will degrade the water

Wetlands, Enforcement, and Citizen Suits.

Assignment: Casebook 749-762; review CWA 404. Casebook 1011-1070; 1101-1116. March 1 Finish CWA and Enforcement. CWA Problem. Assignment: Problem to be posted. WETLANDS Unlike 402 where almost all states have a program there are only 2 states that currently have a 404 program but interest in protecting wetlands is increasing. ISSUES IN WETLANDS definition of what a wetland is; have to undevelop things; a lot of this is private property; people like being near water. Regs for wetlands in CWA have to go back to 301, then 402, then 404. REMEMBER SECTION 301: illegality of pollution unless 402 or 404. START WITH 301! Section 404: discharge of dredge and fill material. Watch for words like wetlands, swamp, etc. STEP 1: Are the Elements of 301 met? Is there a discharge of any pollutant into navigable waters by a person... FILL IN Special features in wetlands a lot more attention to whether there is a navigable water. Discuss Rapanos and SWANCC GO THRU ALL THE TESTS! Basically asking if there is a commerce clause problem STEP 2: What is a wetland? There is an EPA and a Army Corps. definition. FOR OUR CLASS: Has to have certain kinds of that is in the regulation and

determined as such by a knowledgeable person/engineer. This is the idea WE NEED TO KNOW that if a wetland-like thing, you have to get a specialist to look at it to delineate. There are cases on the edges ex. western cases of areas that look dry sometimes and wetlands other times. STEP 3: Is there a pollutant? Section 506(6): FILL IN includes dredge, soil, rocks, sand, etc. STEP 4: Where is the point source? Someone building in a wetland or someone dredging its not fallback Bulldozer, machinery, etc. Digging = dredge! Case law says this is a point source. MACHINERY IS ACTING SO IT IS THE POINT SOURCE! STEP 5: What is the discharge? Fall back from digging is not enough to be discharge of a pollutant. Draining a wetland also not discharge. NOTE: SCOTUS suggests in some cases that incidental fallback COULD be under rivers and habors act of 1899 problem: have to show the incidental fallback would need to hinder navigation seems unlikely. BORDEN RANCH SCOTUS 2002 Affd by equally divided court 9th Cir deep ripping can be a discharge of a pollutant under CWA cos it causes soil to be wrenched up, moved around, and redeposited somewhere else. Distinguished Natl Mining as incidental fall back. If 301 is satisfied, and have a wetland, then need a 404 permit STEP 6: Is it dredge or fill? DEFINITIONS OF DREDGE AND FILL From Regulations! Dredge: Material that is excavated or dredged from the waters of the United States Fill: material used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a water body (Army Corps.) OR any pollutant with such effect. (EPA) IF satisfied need 404 permit! Usually from Army Corps of Engineers except in two states. EXEMPTIONS Section 405 Normal farming, forestry, or ranching, unless changing something that was

always a wetland into dry land Maintenance of dykes, dams, bridges Construction/maintenance of farms Most farming stuff is exempt SECTION 404(e): Permit by Regulation If an activity individually and collectively has no effect, Army Corps can make a rule that the use is permitted. Ex. building a dock outside your house. No environmental impact, so as long as you comply with the regs, you have your permit. Must give prior notice and then comply. INDIVIDUAL PERMITS Steps to get an individual permit: 1. Avoid going into wetland if there is a practicable alternative that is capable of being done given available technology. If there is an alternative, no permit. BIG QUESTION: How do you define the purpose of the project? FACTORS: A. Is the use water dependent? Pier yes. Shopping mall - prob not. B. How much impact? ex. Developer wanted to build a shopping mall. There was an alternative. But by the time the developer applied for permit, that site was gone. 2d cir said this appropriate time is when developer got the idea! And what was important was the project was not water dependant. 2. Reduce the adverse impacts 3. If cant find alternative or reduce the adverse impacts, then the Corps must provide mitigation. 4. To get the permit, have informal hearing about it notice and comment. 5. NEPA compliance is required for 404 permit Federal agency is awarding the permit so need NEPA analysis! 404 is not an exception from CWA Section 1371(c) of NEPA Action of the administrator is deemed a major Federal action. Act of giving permit is thus under NEPA. But 404e Secretary can issue permits so long as environmental effects are minimal individually and cumulatively (the permit by regulation rule). REMEMBER 309 in CAA! If EPA reviews the EIS and finds a problem then can refer the project to CEQ. SECTION 404(c): EPA Power to Veto a Permit

Used very rarely but know it exists! Famous Example: Two Forks dam; shopping mall in the wetland. PURPOSE: existence of this possibility may deter the Army Corps from awarding permits erroneously. TEST: Whether project would have an unacceptable adverse effect on certain things FILL IN? BE AWARE this exists 6. If you do not get your permit, can challenge under APA You have been injured after a final action. If you are an environmental group that participated in the process you too can bring claim if have standing and injury. STEPS FOR ANALYSIS! 1. Does it meet 301? 2. Is it 402 point source? 3. Is it 404 Wetland? COEUR ALASKA INC v. SOUTHEAST ALASKA CONSERVATION COUNCIL SCOTUS 2009 Company makes crushed rock is this more like a waste or a product? More like filling or discharge? More like fill raises the bottom of the lake. Some feeling that company was getting around 402 through 404. Company is not construction in the normal 404 way more like a waste under 402. COURT SAYS: If Army Corps gives 404 permit, no need for 402 permit. Looks at plain language of statute SEACC wanted to look at purpose. 404 refers to all fill material. Army Corps has authority to issue permits for this under 404, so EPA lacks authority under 402 according to Sect. 402. EPAs performance standards under 306(e) also do not apply per EPA memo. Reasonable interpretation of ambiguous language in 404 (which does not speak to this.) DISSENT: The statutes test, structure and purpose all mandate adherence to EPA pollution control requirements. That the Army Corps MAY issue permits does not create an exception to Sect 306(e). Discharges that are under 306(e) need a NPDES permit, NOT 404. Courts reading creates an unintended loop hole for industries that raise water levels. ENFORCMENT Here context of CWA, but other statutes are similar.

Approaches to Enforcement 1. Voluntary Companies are trying to do the right thing, just need assistance in complying with complicated statutes. 2. Solid Toughest enforcement states tend to have better compliance. ISSUE: To be enforceable, have to have clear standards. GE v. EPA 1995 If the agencys interpretation of a law isnt clear and the law isnt clear on its face, you cant hold someone liable for it. However, if agency makes clear what the law is (Sends a letter to company), then law can become clear. The court would consider this to be clear enough. Courts tend to be stricter about this in the criminal context. 1. Monitoring and Reporting SECTION 308 CWA 308(a) EPA can require Monitoring. Ex. Put a meter on your effluent to monitor compliance or for any other reason to carryout the act. Biggest ex. of reason that is not compliance to gauge normal discharges to develop new regulations. Records: contained in discharge monitoring reports (DMRS) or monthly operating reports (MORs). Put on public record/EPA website. These are considered ADMISSIONS for evidence purposes company cannot dispute the submissions. Companies can withhold business secrets but this is fairly strict and not typical. 308(c): Requires states to have comparable monitoring and reporting requirements to have delegated authority. 507: Whistle blower protection for CWA 308: Gives EPA the right to inspect ANY facility at ANY time. Rarely used though EPA usually sends a letter beforehand. But a lot of permitees are found to be in violation anyway. States have similar laws also have document request systems for EPA to request docs without discovery/agency ruling stuff and can interview employees. 2. Government Enforcement Section 309 CWA

A. Criminal Enforcement KEY: Level of Intent. CWA provides for criminal enforcement of negligence. Knowing and intentional violations: penalties in the act. Bigger fines and longer sentences for repeat violations. Provisions for increased punishment for knowingly causing endangerment or injury to a person but often hard to prove For violations of the statute including states statutes. FALSE STATEMENTS: most common. There is a general federal law about lying to the government but CWA 309(C)(4) has a specific provision about this. If a company is TRYING to comply, will probably only face civil enforcement. BUT if you lie, then easier to show a felony/knowingly violating the law. ISSUE: Level of Intent/Mens Rea General Intent: intended to do the act Specific Intent: Knew it was against the law and you did it. WEITZENHOFF 9th Cir. 1994 Looks to leg history and cases involving public welfare. ...the congressional explanations of the penalty provisions strongly suggest that criminal sanctions are to be imposed on an individual who knowingly engages in conduct that results in a permit violation, regardless of whether the polluter is cognizant of the requirements or even the existence of the permit. There... dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. HOLDING: Government did not need to prove that Weitzenhoff and Mariani knew that their acts violated the permit or CWA. Subsequent Cases: Knowing applies to EVERY ELEMENT of the cases. Not knowing that you are breaking the law, but knowing you are dumping into the ocean. Need a jury to determine these elements. Some courts more comfortable with environ regs than others. B. Civil enforcement SECTION 309(b) and (d) STRICT LIABILITY! No intent needed, idea is to prevent things from happening. Intent comes into play for the penalty assessment, but not for liability. Civil and injunctive relief penalties are per violation per day.

Courts generally start at the make then look for reasons to drop the amount. 309(D) Factors In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. A. Economic Benefit Important part! Calculation of the gain permitee got for not complying with the law. Two Methods 1. If did not violate, how much would plant have spent to fix this in present value (predominant method) 2. Economic benefit profit the plant made (cos could have just shut the plant down in the alternative.) Courts usually look at economic benefit and then gravity of the violation. Some economist argue to add in how likely the plant was to be prosecuted e.g. if only 1/10 chance of being caught, multiply the risk times the damages. EPA has a very developed penalty process computes a settlement range for violations. DOJ brings cases to court for EPA. C. Administrative Enforcement Prosecuted by agency/ALJ Strict Liability but lower penalties than what can get in civil court (there is a cap in the statute) Agencies like this quicker, no DOJ involvement Reasons to Go to Civil Court: serious violation, case of national significance and you want to set precedent, if you want the contempt power of the court if you think D wont comply may want to go to court. If D doesnt pay ALJ agency can go to court to enforce the judgment. If penalty is final and D did not appeal govt can go to court (judgment is final at this point). Only issue in court at this point is whether D paid. Cannot argue liability anymore. Also, in civil context, EPA can offset a settlement amount with requiring more environmental acts from D. Extra clean up, reduce levels of pollution, etc.

Can also offset some of criminal fines with supplemental environmental projects. Courts are not supposed to order these (though sometimes do), but can be used as a settlement tool. This is usually for above and beyond the econ benefit agency is usually trying to get the econ benefit recovered and into the treasury. STATE v. FED ENFORCMENT Overfiling Feds can enforce state law when they think state has not adequately addressed certain violations. Usually just a threat allows states to say they cannot accept smaller settlement amounts from important companies because the feds will then step in. Also, better for state to get the money in its own treasury. Has been some litigation over whether feds can bring a case after company has settled with the state Courts usually say this is OK. HARMON 8th Cir. 1999 Harmon dumping for a long time, but claimed did not know what its employees were doing. State said just fix it, no penalty. Feds said no, need to get economic benefit. Got about 500K, went to court! NOTE: This is a RCRA case language says in lieu of in all respects. Other statutes do NOT have this language, other circuits have NOT followed this case, and the 8th Cir. has NOT followed this for other statutes. COURT SAYS EPA can only bring a case if state has not enforced, and gives notice. If state is settling and EPA doesnt like it, EPA can revoke the delegation. PRACTICAL NOTE: revoking delegation is UNLIKELY. Has happened rarely. Its a big burden for EPA to take it over and causes some political problems. SECTION 504(a) CWA: Emergency Powers Provision Other statutes have this as well. Notwithstanding any other provision of this chapter, the Administrator upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment is to the livelihood of such persons, such as inability to market shellfish, may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge of pollutants causing or contributing to such pollution or to take such other action as may be necessary.

This is basically anything the agency says it is a LOT of deference. Does not have to be a violation of ANY specific statutory provision. EX Miami shipped all its sewage to an island via an enormous pipe below Biscayne Bay. Pipe was not maintained and in danger of collapsing and leaking tons of raw sewage into the bay. No violation at the moment but severe risk. EPA brought 504 action. EPA can also ban new hook ups on POTWs. Until the POTW is back in compliance, no new sewer hook ups. Not often used, but a powerful threat means no new houses, businesses, etc. SECTION 508: Debarment Again, not used often but a powerful threat. In a civil or criminal action, govt can say that the company is in violation, so no more Ks with the fed govt. EASY to do in CRIMINAL cases; NOT HARD in CIVIL. Also delisting similar to disbarment enables company to be cut off of govt Ks until back in compliance. 3. Citizen Suits Section 505 Can bring for violations of the act or to get EPA to carry out a mandatory duty (part of admin law ex. meeting statutory deadline to make a regulation) ALSO there is an emergency powers provision type part under 505. Relief can be injunctive, civil damages (money goes to govt but same dollar amounts/fee schedule) Requirements: A. 505(a) Jurisdiction Sue in Dist. Ct., any citizen Except as provided in subsection (b) of this section and section 1319 (g)(6) of this title, any citizen may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in

controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319 (d) of this title. B. 505(b) Notice Have to notify the Administrator, Defendent, State where violation occurred 60 days in advance of filing. Cannot initiate if EPA has commenced a suit and is diligently pursuing BUT can still intervene. C. Litigation Costs If prevail or substantially prevail, then citizens get atty fees dont have to win, just prompt company to do the right thing, even if short of a settlement or court decision. STANDING NOTE: general five year statute of limitations on violations. GWALTNEY OF SMITHFIELD v. CHESAPEAKE BAY FOUNDATION SCOTUS 1987 Q: Whether 505 confers fed JD over citizen suits for wholly past violations The most natural reading of to be in violation is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation that is, a reasonable likelihood that a past polluter will continue to pollute in the future. Pervasive use of present tense in the statute. If they come into compliance b/w letter sent and action or before you send notice, no more standing nothing the court can do. CITIZENS FOR BETTER ENVIRONMENT Sued for not filing a form, but then company filed. Constitutional Issue: no redressability no standing. LAIDLAW FRIENDS OF THE EARTH v. LAIDLAW ENVIRONMENTAL SERVICES SCOTUS 2000 Two years into the litigation, D came into compliance. Here question of MOOTNESS. Only moot if ABSOLUTELY clear that wrongful behavior is unlikely to recur. High standard! A defendants voluntary cessation of allegedly unlawful conduct ordinarily

does not suffice to moot a case. [Civil] penalties may serve, as an alternative to an injunction, to deter future violations and thereby redress the injuries that prompted a citizen suitor to commence litigation. SELF-AUDITING How to encourage companies to do this, especially when reports are considered admissions for litigation? States have come up with two kinds of laws! 1. Privileges Law make all self-audited documents privileged 2. Immunity Statutes any violation in the report is immune from prosecution, but have to correct and self-report. About 25 states have some form of one or both of these. Feds uncomfortable with these cos could hamstring their ability to prosecute. So some states changed the language and EPA came out with a self audit policy. POLICY provides that if a company finds the violation on its own and is not otherwise required to disclose the information, can get a reduction in penalties IF: 1. Promptly discloses (usually 21 days) 2. Remediates the violation (60 days) 3. It is not causing imminent and substantial danger 4. The company does not have a history of violations. Result eligible for up to 75% reduction to gravity part of penalty. 5. If this is part of REGULAR AUDIT procedure then can get 100% of gravity penalty waived and EPA will not bring criminal charges. 11th AMENDMENT: Citizen Suits Barred against states This only applies to citizen suits against states. FEDERAL GOVERNMENT can bring enforcement actions against states. And this ONLY applies to STATES not municipalities, POTWs, etc. NOTE: Sometimes states waive immunity. And does not apply to injunctive relief against states. FEDERAL SOVEREIGN IMMUNITY Same issue as state immunity. NOTE: WAIVED UNDER RCRA under federal facility compliance act requires federal facilities to comply with RCRA and allows people or states to sue. EPA can also issue orders against other agencies in the government. FOR ALL POLLUTION statutes federal government must comply and get permits from state if delegated.

Resource Conservations and Recovery Act (RCRA)

March 15 Resource Conservation and Recovery Act (RCRA). Assignment: RCRA Statutory Readings; Casebook 338-393.

FOCUS: hazardous waste land disposal is primary focus, also some discussion of hazardous waste in the air. Hierarchy of Dealing with Waste 1. Prevent or reduce changing the production process 2. Recycle in an environmentally safe manner 3. Treat it in an environmentally safe manner 4. Release into the environment (but still treated) Difference b/w RCRA and CERCLA: In general, RCRA focuses on regulating someone who is currently operating a factory (going forward provisions) while CERCLA focuses on cleaning up past waste (though this is not entirely true). THEMES IN RCRA Congress goals were to make land disposal safer, protect groundwater, soil and RCRA can also be applied to air emissions Technology Forcing set the stds, then someone will have to invent the equipment to meet them. Requires technology to protect human health instead of best available technology. Focus on waste reduction if its expensive to dispose of waste, people may change their manufacturing processes. Allows them to determine how to do this, rather than Congress giving instruction. Goal increased recycling but avoid sham recycling. Substantial state responsibility for municipal waste cos has little hazardous waste in it. Cradle to grave regulation: starts with creation of waste and continues until it is put in the ground. GOAL make sure there is no leakage, nothing bad happens, limit the facilities permanently storing hazardous waste, ensure the storage facilities are properly permitted. 1984 Amendments Clarified that land disposal should be the option of last resort; expressed unhappiness with the slowness in the implementation of RCRA; Congress wanted to find new technologies; Corrective Action; added deadlines for storage facilities to get permits and show groundwater monitoring. Section 6902(b) US policy to reduce hazardous waster as quickly as possible; waste that is

generated anyways should be treated to minimize the impact on human health environment. Section 6905 If RCRA is inconsistent with other statutes, the other statutes prevail! SUBTITLE C: Regulating Hazardous Waste State Programs States can take over RCRA program IF they have standards that are at least as strict. BUT tends to be a bit piecemeal because when EPA makes a new RCRA regulation, the state has to adjust. NOTE: State program in RCRA ousts Fed program SEE HARMON. In general, the state can assume enforcement. LISTED HAZARDOUS WASTES Subject to RCRA regulation; other substances on the list can also be regarded as hazardous waste. WHO IS REGULATED? 1. Generators of hazardous waste 2. Transporters of hazardous waste 3. Owners or operators of facilities that treat, store, or dispose of hazardous waste TSD facilities. WHAT IS HAZARDOUS WASTE? Section 1104: HAZARDOUS WASTE (5) The term hazardous waste means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. SOLID WASTE (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) [42 U.S.C. 2011 et seq.]. DISCARDED Could argue that something that is recycled is not discarded. If something is not discarded or solid waste, we are not under the definition of hazardous waste!!! AMERICAN MINING I Q: If secondary materials are re-incorporated into production process at different stages, do they fall under RCRA? COURT SAYS: Discarded means thrown away, no longer useful. Thus, these materials are NOT discarded cos will be used again. Even if the materials could have a deleterious effect on the environment while hanging around, they are not under RCRA. DISSENT: Should read statute functionally Q is whether environmental harm, not whether technically discarded. EPA makes new reg closed loop recycling that doesnt really come in contact with the environment is exempt, but everything else is not. FACTORS: 1. Are the materials typically discarded in the industry? 2. Does the material substitute for a normal raw material or just being added into the mix? 3. Is the material just left lying around or is it contained? AMERICAN MINING II ISSUE: waste water sludge COURT SAYS: Upheld EPAs determination that this was covered by RCRA. American Mining I only applies to materials reused right away. Oil Bearing Waste Water EPA said was discarded solid waste, American Mining challenged it, administration changed and EPA said would not regulated COURT UPHELD. 2008 EPA Regulations for Recycling GOAL: avoid sham recycling. 1. Generator Control Test: if the person who generates the waste is using it himself OR somehow ties himself to the waste (if he sends it to another facility you still have responsibility 2. Transfer Based Exclusion test: Factors material is a useful addition to the production. FILL IN FROM CB

WHAT IS HAZARDOUS? 1. Listed Hazardous Waste listed by EPA as hazardous waste. Regulations are slightly more restrictive for these wastes. 2. Unlisted Hazardous Waste possess one of four CRIT characteristics: a. Corrosive b. Reactive c. Ignitability d. Toxicity If you have a technically hazardous waste, can petition to get the waste delisted. Mixture Rule: if you put a tiny amount of listed hazardous waste into a huge pile of stuff, the entire pile becomes hazardous. Does NOT apply to the characteristic test just test pile for CRIT. Derived From Rule: If you take the big pile of dirt with a small amount of hazardous waste and burn it out incinerator ash is hazardous waste. CITY OF CHICAGO v. EDF Turned on meaning of discarded FILL IN FROM CB Hazardous: means it causes an increase in mortality, illness, poses potential hazard to human health/environment when improperly stored or managed (see above statute). WHAT IS A GENERATOR? Regulations say: the act of producing waste Any person whose act or process produces hazardous waste or first causes hazardous waste to be subject to regulation. Obligations of a Generator: - Recordkeeping - Labeling practices - Certain containers must be used - Obligations to furnish information to EPA or the state - Participate in manifest system - Submit reports to EPA every two years - Waste minimization provision every generator must certify that to the extent they can, then minimized the waste (economically practicable standard) TRANSPORTERS Must make it to a permitted facility, have the manifest TSDs

Treatment process the waste and make it non-hazardous or to reduce its hazardousness or make it safer for handling or putting it in the ground Storage temporary storing of hazardous waste before disposal or treatment. It has to be stored in such a manner so not to constitute disposal. A generator that stores it long enough (usually 90 days), becomes a storage facility. All subject to same requirements as the treatment facility. Disposal when you put it into the ground as disposal you have to meet a substantial list of requirements to make sure it wont leach into the ground. CORRECTIVE ACTION In theory, its supposed to be like superfund but corrective action is conducted by state. SUBTITLE D: Municipal Waste (Trash/garbage) Generally state run program ENFORCEMENT OF RCRA Civil and administrative Imminent Hazard Provisions CB 391 FILL IN SECTION 7003 -- the administrator may sue any person who has contributed or is contributing to TSD of any solid waste or hazardous waste that meets the imminent and substantial endangerment requirement Courts have interpreted imminent and substantial quite broadly so this is a very effective statute to address ongoing or past harms 7003 SHOWS UP IN EXAMS!! SECTION 7002 If a citizen is suing. Operates similarly to citizen suits, if administrator is pursuing the matter, he co-opts the citizen suit. Eligible Ds any past or present generators, transporter, or owner or operator of a facility that treats, stores or disposes of waste. (Section 7002(a)(1)(b) Sections 7003 and 7002(a)(1)(b) authorize lawsuits to require the clean up of wastes that may present an imminent and substantial endangerment to health or the environment. Contributing knowing about the contamination, but failing to act. BUT the mere sale of an industrial property with asbestos insulation is not enough. Does not need to be an emergency situation may present. Ps can show risk of harm rather than actual or immediate harm. Also language is ANY solid waste so can be non-hazardous waste or substances that do not fall under CERCLA but see Megrig!

MEGRIG v. WESTERN SCOTUS 1966 Section 7002(a) does not authorize a private cause of action under RCRA to recover costs of past efforts to clean up a petroleum leak because the may present and imminent language clearly exclude waste that already has been cleaned up. Ps trying to use RCRA cos petroleum is excluded from CERCLA. RCRA ENFORCEMENT Designed to hit ongoing hazardous and solid waste facilities and management. Some provisions to address clean up SECTION 3008(h): Allowed govt to require facilities to clean up releases of substances at a RCRA site SECTION 3008(u) & (v): when agencies issue permits, can require clean up for sites SECTION 7003 General catch all part allowed for/provided for clean ups at facilities any time there is an imminent and substantial endangerment. Courts generally defer to agency about what meets this standard. SECTION 7002 allows citizens to bring similar suits. PROBLEMS using RCRA for Clean up time consuming litigation, have to identify who to sue, doesnt allow govt to clean up first and figure out D later. SO ENTER CERCLA!

Comprehensive Environmental Response, Compensation, and Liability Act

March 22 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Assignment: CERCLA Statutory Readings; Casebook 393-466.

NOTE: most of what you need is in the statute regulations less important than other statutes BROAD GOALS OF CERCLA 1. Make sure government is not left with the bill for clean ups 2. Forward looking companies know they will be held liable so will be more careful Generally much more expensive to undo pollution, and if parties dont change their behavior, government ends up doing to the clean up cheaper for parties to do it themselves (and generally they are aware of this.)

Also REMEDIAL STATUTE. Courts will read CERCLA more broadly because of the remedial nature of the statute. General jurisprudence bring MORE people in and charge them more. SECTION 103: CERCLA Definitions SECTION 103: Goal: get at scope and location of the problem. 103(a) notice of release of hazardous substance Required to notify the government of reportable quantity of each substance. HAZARDOUS SUBSTANCE Basically, anything that would be a hazardous substance under statutes, CWA, CAA, TSCA, etc. and anything else that is imminently dangerous EXCEPTION oil pollution other than used motor oil, or non-pure oil. RELEASE Pretty broad anything that gets out into the environment. EXCEPTION fertilizer Penalties for failure to notify! NOTE: CERCLA not really about enforcement, so penalties are scattered throughout statute. SECTION 103(c) Inventory of all sites out there people have to report areas where there are potential releases. SECTION 103(D) Companies must keep records for 50 years. Section 103 Goal get an inventory, try to understand what happened in the past and what may happen in the future. SECTION 105: National Contingency Plan Fancy name for regulations under CERCLA Rules on investigations are in the regulations; sets out how to attack the problem through a National priorities list to say what will be acted on first PROCESS: EPA works through 103 list: preliminary assessment to see what gets on NPL; full agency process to get on NPL a final agency action. EPA uses a scoring system that looks at threats to environment, health, etc. If above a certain number then on NPL. ALSO can get on list by contaminating the groundwater.

RESULT: if on list, heightened procedures, clean up is more expensive cos more rules, federal or state oversight increases (this also increases costs cos have to pay for their work), recognized in Fed. Reg. and bad publicity! Sometimes can defer listing if state is doing clean up and requests a deferral. Sometimes agencies will defer to RCRA clean up authority. 1. HOW CAN GOVERNMENT ADDRESS CONTAMINATION? A. Section 104 Gives government authority to do the clean up new power, didnt exist under RCRA. Money from Superfund created under Section 11, but 104 gives govt the authority. Clean up must be consistent with national contingency plan. Superfund funded through appropriations, recovery stuff, etc. LIMITS ON 104 Section 104(a)(3)(1): Cannot clean up naturally occurring substances (background contamination). Does not extend to inside of buildings (Lead is the biggest potential concern here). CERCLA can clean aquafers but drinking water itself is under Safe Drinking Water Act. LIMITS ON LIMITS Section 104(a)(4): If government thinks something is important enough, can make an exception to the exception. LIMITS ON HOW TO SPEND MONEY Section 104 limits EPA to $2 million per site UNLESS site is on NPL. EPA can get private party to spend money, but limits on EPAs own fund. Section 104(j) Allows government to acquire property to conduct clean up activities. Ex. If government needs to put a pumping well on the property, govt can condemn part of the land as an easement or ownership to do so. B. SECTION 106 Allows government to issue an administrative order that party is potentially responsible party and may need to do things under CERCLA C. SECTION 106 Allows EPA to get court order basically a civil action against the party to do the work. Power of judicial contempt. There are provisions in CERCLA that say what the fines will be if you disobey.

Section 107: allows treble damages Section 106(b) action: Can petition for reimbursement from government if it turns out that PRP was not responsible and get money back. BUT Burden is on the party! Can also challenge decision as ACAD. Timing of the Review of the Remedy Other than waiting til the end, if there is an enforcement action against you, 106, 107, 106(b) can challenge. STANDARD OF REVIEW ACAD. Chances of winning are not great. Bar on Preenforcement Activity: give agency a phenomenal power to get industry to act. Challenges follow APA 133(a) on record, ACAD burden on proof on challenging party not the govt. D. SETTLEMENTS Section 122: Usually judicial, but can be administrative. Spells out how clean up will proceed, government oversight costs, etc. 2. WHO IS LIABLE FOR CONTAMINIATION? SECTION 107: meant to sweep broadly! Language: notwithstanding any other provision or rule of law and subject only to defenses set forth in 107(b)! ONLY specific defenses A. CURRENT OWNER/OPERATORS A. SECTION 107(a)(1) Owner or Operator! No requirement that there were any releases while you were owner/operator. For most part if you are owner or operate the property, you are potentially liable. SHORE REALTY Corporate Officer Liability: just a corporate officer doesnt matter, can be held individually liable if they have any management responsibility Non-Managing Owner: if just owner and no management responsibility, not liable

Why? Govt wants buyers to be careful. Also, govt doesnt want buyers to be unfairly enriched by not having to clean stuff up. unjustly enriched by increase in prop values due to clean up pay for by government. US v. BEST FOODS

1999 Subsidiary polluting, govt wants to go after parent cos parent has more money. COURT SAYS: can only do this if you pierce the corporate veil! OR if the owner is directing things. Ex. if parent controlling subsidiaries operation running site on its own outside the relationships parent companies usually have with subsidiaries. ALSO a carve out for federally permitted releases. If you have a CWA permit or whatever, and all the releases are in compliance with the permit you will not be held liable. BUT this basically means you have to have a perfect compliance record. B. OWNER/OPERATORS AT TIME OF DISPOSAL SECTION 107(a)(2) Courts are split a bit about what it means to dispose of haz substs.! If prior owner puts out drums and they leak, is prior owner liable? Hard to tell if you have contamination in the ground which spreads underground during your ownership. Not as clear/obvious as a drum. Some courts says there much be some act by a human, others, not so much. C. ARRANGER/GENERATOR SECTION 107(a)(3) ACETO 1989, 8th Cir. Issue: Pesticide companies that sent pollution to place that formulated pesticides to send off. Were the companies that sent the pesticides to the site liable as arrangers. Companies said: not disposing! COURT SAYS Liable 1. Companies were in control of the process 2. Pesticide companies owned the components the whole time during the process 3. They knew spills and leaks were inevitable. Also Courts will look beyond how companies characterise their activities! ANOTHER PART even though waste is purchased from an entity, can still be liable. If you are selling a useful product, cleaning spray you dump in the law, manufacturer not liable. BUT if product has been used, some kind of solvent, and you send the solvent to a reclaiming factory (which often pays for it and recycles it to resell), this is not a useful product still waste.

BURLINGTON NORTHERN SCOTUS 2009 B&B bought bulk pesticides and would transfer to smaller containers to distribute to farmers. Spilling occurred at site and Shell knew about it. B&B went out of business, so EPA went after Shell. Q: Should Shell be Liable? Different from ACETO: Shell didnt own the pesticide the whole time. COURT SAYS: not liable. Shell needed to intend that a portion of the product would be disposed. Issue: intent of disposal, even if Shell knew disposal was inevitable. ROLLBACK on CERCLA liability need to look at intent of disposal ESPECIALLY when you no longer have title/ownership of the substance. 4. TRANSPORTERS A little different from RCRA added requirement that transporter has participated in the selection of the site. A LOW threshold, but not nonexistent. Transport does NOT need to be to a DIFFERENT site. Liable for all costs of removal or remedial action incurred by the government not inconsistant with the NCP. BURDEN on PRP to show action was inconsistent. Not uncommon for a private party to sue another private party. If a nongovernmental party = BURDEN on P to show consistent with NCP. Liable also for natural resource damages as well. SECTION 107(l) US government can take out a lien on a piece of property up to the costs of the clean up so money will be recouped when property sold. FOR P TO RECOVER: 1. Hazardous substance (?) CHECK THIS FILL IN 2. Release of a Hazardous Substance 3. Which results in costs to the government (107 only cost recovery) 4. One of these parties. 3. WHAT IS THE NATURE OF LIABILITY? SECTION 101(32): Liability will be construed consistently with Section 311. Legislative history says in accordance with common law. FROM THESE HINTS: A. STRICT LIABILITY Dont need to show negligence or intent just that you did the act. Polluter

pays principle Section 311 oil spill stuff. B. JOINT AND SEVERAL LIABILITY Where harm is indivisible, cannot legally split, then damages can be assessed against any individual D for the entire amount. BURDEN on D to show harm is divisible if he thinks he can show it. Ex. Giant landfill where multiple parties dumped hazardous substances. Individual company can be held liable for the entire site unless can show harm is divisible. Normally, this is VERY hard at superfund sites everything is mixed together and cannot selectively clean up. IDEA government shouldnt have ot bear the costs if cannot show which D is liable for which part. Let the government collect its money and let the PRPs sort out liability amongst themselves. ALSO threat of enormous liability is supposed to encourage parties to settle. BURLINGTON NORTHERN SCOTUS 2009 Site had two pieces one owned by B&B and another owned by RRs and leased to B&B. ISSUE: how much liability for RR? FILL IN!! Dist Ct divided based on size of lots, length of lease, the volume/number of chemicals/connected to how much harm. Came up with 9%. Ct of App not divisible! SCOTUS: Dist. Ct. had enough basis to come to legal conclusion it did. SARA Amendments Congress added specific statutory provisions about contributory actions. SECTION 113(f) affirmation that Congress intent was to have JSL cos otherwise would not need to allow contribution actions (PRP actions to sort out liability). Also makes contribution actions Federal Actions so parties can get their money and mitigate impact of JSL. GORE FACTORS TO APPORTION HARM 1. Ability of parties to demonstrate that their contribution to a discharge, release, or disposal of hazardous waste can be distinguished; 2. Amount of the hazardous waste involved; 3. Degree of toxicity of the hazardous waste; 4. The degree of involvement of the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; 5. Degree of care exercised by the parties with respect to the hazardous

waste concerned, taking into account the characteristics of such hazardous waste; and 6. Degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or environment 7. Anything else these have included economic benefits to the parties, value of clean up to the property value, which particular substances drove more or less of the response costs. ISSUE: Private parties have started clean ups under voluntary state clean up plans without federal involvement. How do they collect their moneys? OPTIONS SECTION 107 or 113? PROBABLY 107! COOPER INDUSTRIES SCOTUS 2004 113 did NOT provide a cause of action only came into effect if you had already been sued by the government AND had to pay money. THEN can sue the other parties to get money. ATLANTIC RESEARCH CORP. ATL research leased property from the United States. ATL cleaned up, sued US. SCOTUS: 107 DOES allow a PRP to sue another PRP. Have a cause of action EVEN if had NOT paid the US government. SECTION 122: Settlement Provisions In some cases, there can be many small contributors to the contamination. Section 122(g) allows government to enter de minimus settlements. Allows a small party to cash out of the liability. Usually an amount based on EPAs clean up cost and a multiplier. ADVANTAGE: You get out now, avoid litigation, have covered your bases EPA wont come after you again and cannot be sued later by other PRPs. D. Retroactive Liability Q: Whether CERCLA should apply to actions done before the statute existed? Early cases YES! OLIN Challenged commerce clause and retroactivity COMMERCE CLAUSE: post-LOPEZ, intrastate activities that substantially affect interstate commerce. Have to look and see whether it is a CLASS of ACTIVITIES that generally affect interstate commerce NOT specific instances a CLASS.

11th Cir. yes, Constitutional under Commerce Clause RETROACTIVITY OK, Congress made intent clear Congress purpose could not be effective if statute not retroactive and statute was foreseeable. 4. DEFENSES TO LIABILITY VERY limited pretty tough. A. Act of God Must be COMPLETELY unforeseen weather events DO NOT usually qualify nowadays. B. Act of War This is not war related manufacturing this is a bomb drops on your factory C. The Third Party Defense Where a third party causes the harm. Limited to say that you are only entitled to this IF you took due care and precautions with the third party. Ex. You investigated the property thoroughly. SHORE does NOT apply if owner had reason to know about the contamination. SECTION 101(35) requires land purchasers to make reasonable inquiry visual, records, unusually low purchase price. Indemnification NOT a defense. These only apply b/w parties to the K. Does NOT PREVENT government from collecting JSL. 5. WHO IS EXEMPT? A. People Holding Title to Protect a Security Interest Like how a bank holds title to property to protect their interest until loan is paid off. SECTION 101(20) long! KEY PIECE: if youre holding title, not liable as long as not participating in the management of the property. Most of definition is re: what is participation in management. EX Foreclosure is this participating? There is a line b/w protecting security interest (maintaining the property) and where youre operating/running the factory (hiring people, etc.). B. SECTION 107(o): de micromis parties De Minimus contributed a small amount to contamination of a site De Micromus even less. Less than 110 gallons (2 55 gallon drums) OR less than 200 lbs of solid waste, owners of residences, small businesses, or small NGOs (less than 100 workers) of municipal waste. Some of this only applies BEFORE April 1, 2001. Does NOT apply if EPA finds that the type of waste contributed significantly to the response, e.g. waste was very hazardous.

BURDEN is on P to show the D was NOT entitle to the exception. BARS contribution actions against residents for municipal waste. If P not successful, D gets atty fees GOAL in some cases, big companies stir up political opposition to CERCLA by suing mom and pop stores. Congress made exception to address this. C. SECTION 107(q): Adjacent Property No liability for owners of land next to a dumpsite where waste moved underground to their land IF they took appropriate inquiry at time of purchase, cooperated with government, and took appropriate steps to stop the spread/not make it worse. D. SECTION 107(r): O/O that Acquire Property After Disposal Occurred Only protects IF they cooperated with the government, do not impede response actions, take steps to not encourage spread or future releases, and not affiliated with another PRP. NOTE: If a clean up causes your property value to increase, and govt has not recouped all its costs, can get a windfall lien on your property. GOAL encourage property purchases rather than preventing, avoid abandoned land. 6. ELEMENTS OF A CLEAN UP Two Broad Classes 1. SECTION 101(22?): Removal designed to address more emergency situations, focused on addressing temporary, quick issues at a site. Ex. a bunch of leaking drums removal would be to get the drums and take to a RCRA site. Can be done at non-NPL sites. EPA can just write an action memo and do it BUT remember there is a $2 million dollar limit on Superfund money AND supposed to be completed in 12 months or less. 2. SECTION 101 (24): Remedial - designed to be more permanent actions to address issues. Ex. Groundwater remedy pump and treat. EPA identifies amount of contamination, pumps water, sends to treatment facility. Long term could take 100s of years to clean, some say only thing you can really do is stop the spread. Can ONLY be done at NPL sites. Have to go through scoring process on NPL, then clean up process can happen. A lot of actions fall in between! Superfund/NPL clean up process can be done by EPA or EPA can order a private party to do it under EPA supervision or a settlement agreement. A. SECTION 121: NCP: Remedial Investigation Most are in 121. Figure out what contamination is. Involves lots of soil

tests, wells drilled, mapping, full investigation of contamination. Can be very expensive and long process. B. Feasibility Study Looks kind of like a NEPA study sets forth alternatives about how to address the contamination. RIFS first half! Then decision by agency about which to pick in the Record of Decision (Section 121(b) RODs): Standards are that it will provide a permanent solution to the contamination. How clean is clean? ARARS! Applicable standards or Relevant and Appropriate Standards. STATES may have standards this is an applicable std and clean up is supposed to achieve this. If NO applicable standard then state or fed rules may provide something. EX. Drinking water should only have x amount of y contaminant. So relevant and appropriate, so can use as guidance. Sometimes may be a technical/practicability standard that applies to ARARs. May be that there is some contamination that you cannot get to the ARAR. ROD gets notice and comment, but only way to challenge is ways we talked about (?? APA?) C. Remedial Design Design of the remedy. The engineering drawings, structures at facilities, etc. There are different points in time where you have to submit plans to EPA. D. Remedial Action The clean up undertaken at the site in accordance with the design. In some cases, the action goes on indefinitely etc. pump and treat. Pumps working indefinitely some view this as operation and maintenance. CERCLA Provides for five-year reviews of remedial actions make sure plan still makes sense 7. Miscellaneous Other Statutory Provisions SECTION 120(h): issues with Government as PRP Requires federal agencies to notify purchasers of possible hazardous releases when transferring property. These do NOT have to be only those that happened while government owned the property. Government must certify that the property is clean AND agree to pay for future clean up costs. Special responsibilities for government. DOD and DOE mostly. Property can transfer before clean up is completed IF the contamination is not a threat AND government still responsible for finishing the clean up.

Cities and Counties SEMINOLE protects states If state is sending garbage somewhere, private party CANNOT sue BUT FEDS can sue. Not a big issue under CERCLA most action is at city, municipal level, so no 11th Amendment problems. Local Government protections: Waste policy for municipalities looks a lot like de minimus protection. Settles with them and removes liability. BE AWARE there are also protections for small towns. A. Brownfields SECTION 104(k): money for brownfield assessments. Money for private parties to look at contamination on a site and try to eliminate doubts about the site. Did NOT include NPL sites, RCRA sites, or sites slated for remedial/removal actions. B. Voluntary Clean Up Programs Section 120(a): state programs where if youre an owner of a site and allow state to supervise, investigate and clean up and in the end state gives a letter saying site is cleaned up. NOT available for NPL sites or where there may be an imminent or substantial endangerment. Also, these sites will NOT be under Fed Superfund actions. C. Natural Resource Damages LARGE topic. SECTION 107(f): this is for land, water, animals, fish, birds, plants, etc. Each has a natural resource trustee govt agency responsible for standing up for the resource. Sometimes fed agency, sometimes state. Ex. Bed of river state, water fed. EPA must notify trustees if superfund action may affect natural resources, and trustee can bring suit for damages on benefit of natural resource. EX. if Superfund contamination has killed birds in commerce, put dollar amount on the loss, and trustee brings action. PRESUMPTION damages assessed by agency are reasonable ACAD review of trustees damage calculation. NOT common. But where there are claims they can be enormous ex. $100 million. D. Emergency Planning and Community Right to Know Act Also in the steel company case! (? FILL IN) EPCRA added to CERCLA in 1986 SARA Amendments. A free standing part of CERCLA like its own statute. AIM to give local and state emergency responders the information to

appropriately respond to accidents, information about what chemicals are at a site. Makes sure facilities have numbers for emergency services. ALSO requires annual reports on specific releases of any kind federally permitted or not. GOAL let EPA create a national inventory about the cumulative emission of gases. And reports are public so individuals can know, shame company. Impact on Companies have to tally loses and when companies saw this, strived to become more efficient. Has helped EPA prioritize certain chemicals or facilities. ALSO minimal amounts before you have to report a leak.

CERCLA/RCRA Problem, Toxic Substances Control Act (TSCA)

April 5 TSCA! THREE OPERATIVE IMPORTANT FACTORS 1. General Testing Requirement Administrator of EPA can by regulation require testing of new or existing chemicals that provide a risk to health 2. Pre-manufacturing Notice Requirement If you are going to make a new chemical or new use for an old chemical have to notify EPA and EPA has 90 days to determine if it wants additional testing or additional controls. Not a lot of time! Manufacturer must provide any info it has but not required to develop the info. 3. Hierarchy of actions EPA can take if it finds there is a reasonable basis to conclude the manufacture, use in commerce, disposal, etc. presents or will present an unreasonable risk of injury to health or the environment. Can use one or more of the following to protect adequately that risk using least burdensome requirement: 1. Quality Controls 2. Downstream notice requirement (on bottle or bag) 3. Impose disposal requirements 4. Recordkeeping Requirements 5. Limits or prohibitions on particular uses or concentrations 6. Limits or prohibitions of manufacturing, processing, or distribution Action is taken by Rulemaking with complicated procedures in the statute. CERCLA/RCRA problem. Toxic Substances Control Act (TSCA). Assignment: Skim TSCA Statutory Readings; Casebook 246-264.

ASBESTOS CASE No deference! RM case RM lists hazards that EPA is concerned with lays out risk/benefits. Did lots and lots of findings, explained why ban was least burdensome. COURT: sets a standard to interpret TSCA that makes it pretty much impossible to use the statute. EPA and Congress making some action but generally, quite limited regulations under TSCA. NOTE: TSCA also has a little RCRA for PCBs. Looks like RCRA, not TSCA. In generally, TSCA not a particularly effective statute. ON EXAM just say this might trigger TSCA if a new chem or new use, but dont need to know the statute provision.

Clean Air Act

April 12 Clean Air Act (CAA). Assignment: Casebook 499-517; 551-635; Statutory readings.

INTRODUCTION HISTORY NAAQS ATTAINMENT/NONATTAINMENT Open Q: re: NAAQS for GHGs STATE IMPLEMENTATION PLANS How states will achieve NAAQS, Attainment/NA areas. NAAQS are NOT directly enforceable they apply through SIPS that states are obligated to implement. SIPS MUST PROVIDE FOR: 1. Maintenance 2. Enforcement 3. FILL IN State can delegate responsibility to other entities but we will just take re: the state. Courts have said this is the states job NOT EPAs job. SIPS must include HAPs and New Source Reviews but otherwise BROAD discretion about how to achieve and maintain the NAAQs.

HOW TO COME UP WITH A SIP 1. Evaluate current sources and predict future sources. EPA has mathematical models to do this. 2. Allocate among the different sources difficult trade offs! Determines who has what obligations. States have some discretion BUT must use EPA models to show the NAAQs will be obtained with in the timeframe. Improvements must come from somewhere to get to reasonable progress towards attainment. 3. If achieve the NAAQ have obligations to maintain within the realm of the NAAQs. 4. Submit SIP to EPA to approve. CAA has deadlines about EPA review and approval. If SIP meets requirements EPA must approve. SECTION 166: Stricter Standards Reserves states ability to have stricter standards. UNION ELECTRIC MO had aggressive plan; industry said infeasible! COURT SAYS EPA cannot reject something because industry thinks it is economically or technologically feasible. Infeasibility can be considered if will interfere with prompt attainment of the NAAQ, otherwise it is for the state to decide. UPHELD SIP. Q: Would this be different if state or EPA said was infeasible? Case emphasized that states can make the hard choices. If everyone agrees there is NO available technology, then perhaps EPA could reject. Otherwise, company must work with the state. ADDITIONAL FEATURES VIRGINIA v. UNITED STATES EPA cannot condition approval of a SIP on a states adoption of a particular control measure, e.g. to use CA cars. EPA set up a group of states to address ozones mobility; states said if we require CA cars, we can get the NAAQ. COURT SAYS: No. Can make states get to the std, but cannot prescribe how they will achieve. FEDERAL IMPLEMENTATION PLANS If a SIP is not up to par, EPA is required to make a FIP. EPA usually reluctant to do this. Balancing state probably wants control but may not want to make hard choices. WHAT TECHNOLOGY IS BEST AVAILABLE

ALASKA DEPT OF ENVIRONMENTAL QUALITY v. EPA SCOTUS 2004 EPA can require state to give reasons for one technology over another and can reject if ACAD, but CANNOT just reject. Important decision but unclear if ruling would be the same today (5-4 decision). TOOLS FOR STATES SIPS TO ACHIEVE NAAQS 1. Emissions Averaging/Bubbles CHEVRON definition of stationary source. Can average all three smoke stacks to some level instead of regulating each smoke stack. 2. Trading for Emissions Set a cap, give out certificates. Companies that can more efficiently reduce emissions will and then sell surplus to other companies. Only system in CAA Is for SO2 but states can implement their own plans w/in the state. BUT states need to monitor, companies must have faith in the market, etc. BENEFIT - efficiency POSS PROBLEMS: people living by the more polluting plants may not like it pollution can continue or maybe increase. Environmental Justice concerns. Ex. GHW Bush wanted to trade Hg but (1) its a HAP, and (2) very localized impact. 3. New Source Reviews/New Source Performance Standards CAA tilts towards when you build a new facility should include good pollution controls. NSPS not as important any more because of other regulations but are still out there. Controversy applies to not just new sources, but also major modifications. Line b/w maintenance and major modification is not clear! BUT this line is what triggers NSR. 1988/89 WEPCO 7th Cir. Standards are clear enough and WEPCO has to be viewed as making a major modification. EPA had put out a memo re: what was a major mod included WEPCO. New source review is a very important tool, but it is expensive so contentious tool. HOW DOES THIS WORK? If you are in a PSD area under New Source Review you must 1. Notify State before making the modification

2. Get Permission from the state 3. Pollution controls must meet Best Available Control Technology. (For many industries, rulemaking determine this performance standard) States are required to implement and enforce new source stds in SIPS!! States can determine what is a major modification in the first instance EPA can also overfile. A state might say something is appropriate pollution control based on how the state divides the burden also may not want to kick out the power plant has to get the power from some place. DUKE ENERGY SCOTUS Q: what is an increase in emission? DUKE: emission per hour EPA: Annual emissions if repair means you can operate longer then total may be more! DUKE modification must have same meaning in each place in CAA. COURT SAYS: No! Can mean different things depending on the context. Here, annual rate of emission is the only way that makes sense. ATTAINMENT v. NONATTAINMENT AREAS NA areas much of the same applies, but the standard for pollution controls is stricter. Need to drop not just maintain. 4. HAZARDOUS AIR POLLUTANTS Cause adverse health effects e.g. Hg. Not standard air pollutants similar to hazardous under RCRA. SECTION 112 New air toxic regulations program 198 substances and categories of substances that EPA must regulate. EPA is supposed to periodically review and add substances. Statute is health driven people can petition to add/remove substances, EPA has time limits in which it must act. EPA must publish categories and subcategories of sources of HAPS. MAJOR SOURCE: defined in tonnage per year. AREA SOURCES: also defined EPA has a strict timetable to establish minimum standards for each source. STANDARD: maximum achievable control technology (MACT) EPA can include costs and non-air pollution effects in determining the MACT.

MACT applies to NEW and OLD source. Standards MUST apply to all major sources. For PSD state has some flexibility but NOT for HAPS! Existing facilities must comply with any new MACT within three years. New Sources must demonstrate compliance before beginning production. PERMIT REQUIREMENT under TITLE V. Enforceable by states and EPA. Just like other statutes states are primary enforcers, but EPA can too. 5. AIR CONFORMITY PROJECT/TRANSPORTATION CONFORMITY REQUIREMENTS All federal activities must conform to the SIP. Feds must be in compliance with states rules. MAJOR ISSUE: transportation projects with federal money projects must conform to SIP. This applies to federal activities BROADLY- defined. HOW DOES IT WORK? Feds must ask state whether an idea interferes with the SIP before undertakes it. There are specific requirement just know the general idea. If feds are going to fund/permit a highway, this approach has to apply. FOR NA AREAS EPA can cut off hwy funding in certain circumstances. States dont like this! Happens if state is not making progress under SIP. 6. Recordkeeping Requirements 7. Monitoring Requirements 8. Major Sources MUST have Compliance Reports Facilities are required to use monitoring equipment. For a long time lots of questions about frequency of monitoring/site checks, what equipments is, etc. State can be more stringent. EPA and the States have authority to enter to inspect monitoring equipment, records, sample things, etc. EPA must notify state, but state agency is NOT allowed to notify facility. Information must be made public unless would disclose trade secrets. NOTE: Ozone has federal standards not state standards due to Montreal protocol. MULTISTATE AIR QUALITY PROBLEMS Complicated provisions from EPA to deal with amended statute

CB 616 FILL IN 1. EPA can set up a group of states to get them to solve the problem. EPA came up with technologies that EPA thought were feasible but recall VA v. US! MICHIGAN v. EPA Federalism argument EPA is forcing us to do this! COURT SAYS This is OK! VA different because EPA specifically set the measure. HERE State gets an O3 budget, but still has a choice about what control measures to use. D.C. Cir. upheld interstate O3 rule that EPA implemented. ALSO 1990 amendments have a way for states to petition EPA to make other states do things so petitioning state can meet standards. 2. Clean Air Interstate Rule CB 628 FILL IN Rule where EPA set up a trading regime for NOx and SO2 for non-power plants. Pretty much everyone was cool with it but court VACATED because not in the statute. SULFUR DIOXIDE TRADING PROGRAM Cap and trade for SO2 from power plants in 1990 amendments Ten year trajectory reduce by ten million tons per year? Trading potential created through allocations made to companies based on past emissions and fuel consumption govt had a lot of historical data Buy and sell on CHI Commodities Exchange P determined by market Enforcement is essential to make this work! Buyers and sellers have to believe something will happen if they dont follow rules! Continuous monitoring! Easy to see. Strict penalties so companies had greater incentive to buy chips. Some say worked so well didnt need enforcement! Not true! Needed very strict enforcement provisions to make the risk too costly! Have achieved the level from the statute! But acid rain still a problem States also can impose stricter controls if they want. IMPORTANT because this may effect how a GHG program would look DIFFERENCES: may be national, not just power plants, may not have similar historical data, would CHI market work? TITLE V PERMIT PROGRAMS 1990 Amendments required states to have permits for specific facilities usually intersects with other sections of the act HAP, New Sources, etc.

Permit system is now required as part of CAA. ENFORCEMENT Usually enforceable by STATE or EPA. Statute defines PERSONS, includes fed agencies, etc. FILL IN 1990 clarified that owner/operators of a source and senior management can be liable. STRICT LIABILITY STATUTE! NOTE: be aware there is a rule re: how long a violation lasts. 1. Federal Enforcement A few extra features in CAA. Notices of Violations before EPA can bring an enforcement action, must issue NOV to source and to state for violation of a permit or SIP (NOT a federal rule). Can bring on two tracks: NOV and Federal Rule. NOTE: Unlike RCRA, CAA has this extra step to enforce! 2. Administrative Compliance Orders Can be issued to different people violating CAA Similar to Administrative Actions in RCRA/CWA 3. Administrative Penalties/Beal Citations (CHECK THIS FILL IN) Civil penalties in court Amounts have gone up! If EPA seeks more than $200,000 in damages or conduct that went on for more than 12 months, must get DOJ approval. EPA can do the suit but needs to get DOJ approval! 4. Administrative Hearing Process Subject to judicial review under ACAD/Substantial Evidence test. 5. Field Citations Parking tickets of CAA up to $5000/violation. Used for minor violations can be given to govt agencies. 6. Civil Enforcement UP to $3200/violation/day Can issue injunctive relief Court has discretion to set .... FILL IN 7. Criminal Penalties SECTION 133(c)(1): FILL IN Knowing violations, knowingly making false statements. 8. Rest just know they exist!

Criminal penalties for failure to notify, tampering with control devices, releasing air pollution that causes a knowing endagerment, etc. Lower level employees and someone else (FILL IN) can be liable. SECTION 303 CAA: imminent and substantial endangerment provision! 9. SECTION 304(a)(1) ANY person can bring suit against ANYONE, including federal agency that is in violation of an emission standard or an administrative order. NOTE: this is NOT wide open to every situation in the statute! Have to notify EPA and the state; if EPA starts an action citizen can intervene as a matter of right. Private citizens can request injunctive relief and civil penalties. Money generally goes to treasury but can also go to fund to clean things up. STATE ENFORCMENT General Standard must have reasonable enforcement programs. Most states have things similar to federal actions BUT enforcement is ONLY UNDER SIP, not CAA> Also have usual issues with overfiling. MOBILE SOURCES TITLE II Lots of stuff here cars, trucks, off road vehicles, lawn mowers, cranes. etc. Emit VOC, NOx, CO2, CO, GHG (NOTE CO2/GHG not regulated yet) Emissions are down, but number of sources is up! INTERNATIONAL HARVESTER Risks of erroneous denial were greater than erroneous grant of an extension! FILL IN MASSACHUSETTS v. EPA GHG is a pollutant under CAA so EPA must determine if harms health or public welfare, and if so, regulate it! Current Mobile Source Standards! SECTION 202 emissions standards for the useful life of a motor vehicle 1. Administrator sets standards for model year vehicle. Rule about how this happens lead time, percent reduction/level of emissions, etc. Standards set as needed to protect public health and welfare taking costs, safety, and health into accoutn. MUST be a reduction from previous standards. Separate requirements for each type of mobile source! Think EXPANSIVELY about what is a mobile source (note exception for model airplanes)

2. Manufacturer makes a model to see if it meets EPAs stds. If yes, gets certificate. There are rules and requirements re: diagnostics in the vehicle. EPEPA has authority to continue to make standards more strigent. DEFEAT DEVICES: where manufacturer gets certificate, but then adds technology to the care so when certain things ran, it would emit more. ILLEGAL. CALIFORNIA CARS Can have regular car or CA car in your state. TWO WAYS CARS POLLUTE 1. Emissions 2. Fuel FUEL STANDARDS SECTION 211 EPA can regulate fuel additives Reduction of O3 from volatility, standards for reformulated gas, oxygenated fuel. Lead phase out big and effective regulation! KNOW FUEL STANDARDS ARE THERE ETHYL v. EPA Cost benefit analysis Recall that costs were higher than actually turned out, and benefits estimated were less than actually turned out to be FILL IN! ALSO standards about how much sulfur is in gasoline to control for SO2 S also coats catalytic converters and makes them less effective. WHAT HAS TO HAPPEN IN THE FUELS? Requirements about what goes in Requirements for conventional gasoline Antibacksliding provision Toxic standard for conventional gasoline Antibacksliding provision Differences in what gas can be sold in the summer or winter cos of different volatilities VOCs more volatile in summer Certain locations have a oxygenated fuel requirement to address O3 problems Exclusive fuels for NA CO areas at peak CO times usually winter, must be at least four months long.

FEDERAL STDS states must comply! Oxygenate have to blend gas with something else like ethanol. Reformulated requirements also used to reduce O3. Formula tends to be tailored to the area. 9 smoggiest areas have to use reformulated gasoline listed in the statute but other areas have opted in to reduce pollution. Also reduces emissions for VOCs and toxics like benzene. Specific areas have specific regulations CALIFORNIA CARS More complicated requirements Specific requirements to phase in low emissions vehicles, ultra low, and zero. Some requirements dropped cos didnt think CA could meet them. TECHNIQUES AVAILABLE TO STATES FOR MOBILE SOURCES 1. Can require centralized maintenance and repair/emissions inspections. 2. Can discourage unnecessary auto uses. Surcharges for parking fees, HOV lanes, vanpooling, etc. Taxes on parking. Pretty much anything to encourage transit oriented development.

Clean Air Act, CAA Mobile Sources, Climate Change, Clean Air Act Problem
April 19 CAA (continued). CAA Mobile Sources. Climate Change. Clean Air Act Problem. Assignment: Casebook 517-551. Optional: 1129-1161.