Enviro I Outline

Outline: Environmental Law and Policy I Professor Harley
Fall 2010 Kyle Carlson

Administrative Law Principles in Environmental Law and Policy
Administrative Procedures Act (“APA”) –
 90% of environmental law takes place w/out court participation.

 The most important procedural code for environmental law is not the Code of Civil
Procedure.
 Instead, Environmental Law Relies on the Administrative Procedures Act (APA)
o How law turned into technical regulation
o How regulation turned into facility, site, or activity specific rules
 Major Environmental Laws (e.g. Clean Air Act) are broad-mandate blueprints.
o Architecture of General Structure of Rules
o Mandates to the Administrator of the US EPA to do certain things  i.e. turn
goals into technical requirements
Chapter 40 of the Code of Federal Regulations (40 CFR § __ ) –
o US EPA Administrator promulgates mandate-required regulations

 Emission guidelines, compliance time period, penalties, monitoring &
reporting protocols, etc…
o Takes a lawyer or engineer to understand the dictates for the various source
categories of facilities
o 3 reasons CFR important to enviro law practitioners:
 1) Compliance Counseling = Obligation to know the regulations;
ignorance is no legal defense
 2) Practitioner’s Handbook = Violation of regulations incurs same
penalties as prescribed for violation of the main, enabling law
 3) APA Rulemaking Process = Opportunity for notice/public comment
allows atty to advocate for a position and create the record required for
judicial review after final agency action
APA Rulemaking Process –
I. Provision of Adequate Notice: Nearly every day, the US EPA announces intention to
engage in regulatory activity
A. This initiates the rulemaking process
B. Regulations are proposed not imposed.
C. Notice placed in the Federal Register
i. Highly specific legal document
ii. Identifies the federal official responsible for the rulemaking & the
statutory basis for the rule
iii. Announces opportunities for public comment and public hearing info (if
any set up yet)
iv. Explains EPA’s initial take on what final version of proposed regulation
will resemble
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II. Opportunity for Public Comment: Usually hearings around affected region or
nationwide + submission period for written comments
A. Goal for client’s enviro atty representative = Dominate the Record
i. Record is a transcript
ii. Fact-Gathering Exercise, not a referendum, up or down vote, town-hall
meeting, gauge of public sentiment
B. EPA must respond to substantive comments from public hearings when issuing
final rule
i. No requirements on weight of evidence in decision, just that a weighing
and consideration of offered evidence occurred.
III.Judicial Review of Rulemaking: Rulemaking is Administrative Agency process, not
Judicial process
A. Ripeness – No judicial review until “completion of final agency action”
i. Generally, when releasing the final rule w/responses to substantive public
comments
ii. Or when rule already released and agency (dis)approves permits
B. Standard of Review
i. See Chevron below
ii. Not De Novo
iii. Limited to the 4-Corners of the Record == The information the agency
had available at the time of the final agency action.
IV. Adjudication Process – Permitting: Distilling statutory and regulatory reqs to apply to
ONE regulated facility
A. Commonly for construction permits, operation permits, or demolition permits
B. Obligation to know an entity needs a permit and to maintain that permit is
imposed on the regulated entity
C. Notice and Comment
i. Notice in paper of general circulation w/in area of proposed construction
or activity
a. Summarizes the project; lists permits to be issued
ii. Comment = Public Hearings + Period for Accepting Written Comments
iii. Why Notice and Comment for every individual project?
a. Too Many Regs: every citizen can’t monitor every federal reg
b. Prevent Fundamental Mistake: A particular facility could be
extremely dangerous
c. Info-Gathering: Agency may not have local, relevant info
d. Legitimacy  public check on executive branch admin-created
legislation
e. Who speaks for nature? The people who appreciate it in closest
proximity or highest interest
f. Industrial Competitors: Want to ensure uniform application of
costs/standards
V. Judicial Review of Statutory Implementation – see above and Overton below.
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Judicial Review of Administrative Statutory Interpretation (Rulemaking):
Chevron Deference – Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984)
 The Agency Clearly Holds the Advantage on Appeals to the Judiciary.
 NOT De Novo Review – Reviewing Court bound by record in front of agency at the time
of the agency’s decision.
o In very rare circumstances it’s possible to consider new evidence
Two-Step Process – Question of Congressional Intent
1. If intent of congress is explicit delegation of authority to agency to fill in gaps in
law/make regulations, then such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.
a. “the court is not empowered to substitute its judgment for that of the agency”
b. How to determine statutory intent?  Ordinary Rules/Doctrines of Statutory
Construction (Case Footnote 9)
i. FDA v. Brown & Williamson Tobacco Corp. (2000) = S.Ct. says
reviewing court “should not confine itself to examining a particular
statutory provision in isolation. The meaning – or ambiguity – of certain
words or phrases may only become evident when placed in context.”
1. Context  agency’s past interpretations of the scope of its own
authority, adoption of other tobacco-regulating statutes, economic
& political magnitude of the policy decision at issue.
c. See Factors in 5 USCA § 706(2) [Scope of Review]
i. E.g. – Most common agency violation – the agency fails to consider all
factors required by congress, or considers factors other than those in an
exclusive list by congress.
ii. E.g. – Less Common = Procedural Flaws – wrong # of days for
comment/compliance period too short
d. Judicial Remedy under 5 USCA § 706(1) = compel agency action unlawfully
withheld or unreasonably delayed
e. Statistics – in 1990s in cases decided under step 1, EPA lost ~ 60%
i. Interestingly, anti-EPA judges are looking to legislative history to justify
“plain” meaning
2. If legislative delegation of authority to the agency is implicit, then the administrative
agency is permitted any reasonable interpretation.
a. Unreasonable basically = Irrational.
b. Statistics – in 1990s in cases decided under step 2, EPA won > 92%
Scope of Chevron Deference – Sliding Scale, Fallbacks, and Ambiguity
 US v. Mead Corp (2001) = Chevron Deference owed when “it appears that Congress
delegated authority to the agency generally to make rules carrying the force of law, and
that the agency interpretation claiming deference was promulgated in exercise of that
authority.”
o Shown by agency’s power to engage in adjudication or notice-and-comment
rulemaking, or some indication of comparable congressional intent
o Fallback = still some deference
 Depending on “degree of the agency’s care, its consistency, formality, and
relative expertness, and … the persuasiveness of the agency’s position.”
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 Barnhart v. Walton (2002) = S.Ct. (arguably dicta) says Mead stands for “deference
depends in significant part upon the interpretive method used and the nature of the
question at issue.”
o Factors for Chevron Deference here were: interstitial nature of the legal question,
related expertise of Agency, importance of the question to administration of the
statute, complexity of that administration, and the Agency’s careful consideration
of the question over a long period of time
 Gonzales v. Oregon (2006) = may stand for: more limited agency authority to promulgate
rules narrows application of Chevron Deference
Judicial Review of Agency Statutory Implementation (APA “Informal” Agency Actions) –

Citizens to Preserve Overton Park, Inc. v. Volpe (1971)
 Rule (1): Quasi-Legislative, Informal agency decisions can be challenged. Standard of
Review for "informal" agency decisions (i.e. informal rulemaking/N&C rulemaking or
informal adjudication) is
o arbitrary and capricious if based in fact and
 see Rule (2)
 “the court is not empowered to substitute its judgment for that of the
agency”
 A&C Factors from Motor Vehicle Mfrs. Ass’n v. State Farm Mutl. Auto.
Ins. Co. “if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.”
 Sometimes considered to be equivalent to std for formal decisions =
Substantial Evidence Review
 Overlapping, but not considered to be identical to Chevron step-2.
o de novo if question of law.
 Rule (2): Hard Look Review: Courts applying the arbitrary and capricious standard
must engage in a searching and careful inquiry of the full administrative record at the
time of the agency decision. Must make sure the agency has taken a hard look at the
salient issues (used if public interest is at issue).
o Usually avoid requiring testimony for “inquiry into the mental processes of
administrative decisionmakers”
o But affidavits w/ post hoc rationalizations of a decision are and inadequate basis
for review
o Judiciary must ensure balancing of factors/interests occurred, not rebalance them
Exceptions to Judicial Review of Final Agency Action: 5 USCA § 701(a)
1. Statutes preclude judicial review
2. Agency action is committed to agency discretion by law
a. Existence of agency discretion is not enough
b. Congressional intent must be demonstrated by clear and convincing evidence std.
c. Courts rarely have a problem finding “law to apply” that removes full agency
discretion in the delegating statutes or the agency’s own regs or plans
d. Often refuse to reach merits if agency challenged on decision to not enforce rule
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National Environmental Policy Act of 1969

NEPA
Generally; EA/EIS Process; EA/EIS Substantive Requirements
NEPA – Congressional Purpose and Judicial Enforcement

 Passed 1969; “environmental Magna Carta”
NEPA Goals:
 1) Articulate a National Environmental Policy
o see handout of purpose statement
 2) ID Worst environmental entity in America = the Federal Gov’t
o Bipartisan Congressional opinion that Fed Gov’t funding for projects w/ no enviro
standards causing the majority of environmental damage
o NEPA designed to change way gov’t does business/approves contracts or projects
 3) “To insure high quality information is available to public officials and citizens before
decisions are made or actions are taken.”
o Stop and Think Statute or Hard Look Statute
o Agency Action-Forcing statute = binding on every agency of the Fed Gov’t in
terms of their primary activities.
o ALSO a Paper Tiger – mandates gathering of information and considering that
info, but does not mandate action favorable to the environment.
 Characterizations: Huge loop-hole vs. public pressure against polluters
strengthened vs. playing to better angels of Fed. Officials
§ 102(C) – Core Mandate of NEPA
 “all agencies of the federal gov’t shall include in every recommendation or report of
proposals for major federal action significantly affecting the environment”
Does NEPA/102(C) apply? See CEQ section below + flowchart + pg. 238
 1) Threshold Federal Action Requirement
o not just states or private parties acting
o although many states have their own version of NEPA  “SEPAs”
 2) Significantly Affecting the Environment Requirement
 3) If Both Yes, then Detailed Environmental Statement – In Consultation Required
Judicial Enforcement of Agency Duties under NEPA – Calvert Cliffs’ Coordinating Comm.,
Inc. v. US Atomic Energy Comm’n (D.C. Cir. 1971)
 First major NEPA case in courts
 RULE: NEPA does in fact require a good faith balancing of environmental factors
 Reviewing Court just ensures that balancing occurred, cannot rebalance enviro factors
 Most common violations
o 1) Bad Scientific Environmental Data and/or Lies, or
o 2) The Agency Refuses to Listen = “sticks head in sand”
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Administering NEPA’s Requirements: The Council on Environmental Quality (“CEQ”)

 Created to oversee NEPA, guidelines for preparation of EIS.
o See Calvert Cliffs – Agency duties under NEPA become judicially enforceable
 Designed 40 CFR § 1500 = highly specific, legally binding regulations for federal
officials that make NEPA requirements concrete
o See: Nepanet online.
1) Federal Action? – any 1 of below satisfies

 Federal Approval
o Low std; can be minimal
o E.g. permits and approvals even w/ no federal funding after
 Federal Funding
o Extent?
o Funding preliminary studies usually not final enough
 Federal Gov’t Conducting the Project
o Includes contractors under federal control
 EXCEPTED: Categorical Exclusions (“CATX”)
o Automatically skip EA process. Never get EIS.
o CATX can be pretty specific; basically for routine matters.
o Agency deeming an action as CATX = final agency action
 Can be challenged in federal court.
 Defenders of Wildlife v. Andrus (D.C. Cir. 1980): Inaction is not a final agency action
where the agency was not compelled to act.
 Small Handle Problem: private or state actions w/ tenuous Federal link can fall outside
of NEPA – depends on the judge
o E.g. Winnebago Tribe v. Ray (8th Cir. 1980) = EA along w/ federal permit for
power line to cross a river for river crossing area, but not enough connection to
require EIS for the other 65 miles of power line.
 40 CFR §1508.18(b)(2) lists some Federal Actions:
o 1. Adoption of policy, rules, regulations, interpretations.
o 2. Adoption of formal plans prepared or approved by federal agencies, which
guide use of federal resources.
o 3. Adoption of programs
o 4. Approval of Scientific projects
 When do Proposals become actions? – Ambiguous
o How specific must it be before requiring EIS, and when in the agency’s
decisionmaking process did the proposal occur?
o 40 CFR § 1508.23: a proposal == “that stage in the development of an action
when an agency subject to [NEPA] has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal and the
effects can be meaningfully evaluated.”
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 Dept. of Transportation v. Pub. Citizen (2004): Ministerial, Nondiscretionary Actions
do not require NEPA application.
2) Significant Environmental Effects?

 If thru step 1, must conduct an Environmental Assessment
o “EA” = gatekeeper function
o 30,000/yr @ 10-15 pgs each
o usually w/ letter of consultation of agencies from agencies w/ expertise
 EA finds Significance?
o No = FONSI = Finding of No Significant Impact
 Still forced a federal agency to review environmental impacts
 This determination counts as a final agency action
 Can be challenged in federal court.
o Yes, but able to mitigate into insignificant impacts = Mitigated FONSI
 Not provided for by statute or CEQ regs.
 Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v.
Peterson (D.C. Cir. 1982) Generally OK’d by CEQ & courts if the
Mitigated FONSI is detailed and includes enforceable mitigation measures
that makes impacts minor to the environment
o Yes = Need a EIS
 Significance Factors Defined by 40 CFR §1508.27 & NEPA §102: Requires
consideration of
o (1) Context (society as a whole, affected region, affected interests, the locality,
long term v. short term)
o (2) Intensity (severity of the impact / significant effect)
 Impacts may be beneficial and adverse; Degree of effect on public health
and safety; Unique characteristics of the area; Controversial aspects of
effects; Uncertainty of effects; Precedent for future actions; Impact on
historic places or cultural resources; Significance of cumulative impacts;
Impact on endangered species; Potential for violation of state or Fed law
 National Parks & Conservation Ass’n v. Babbit (9th Cir. 2001): “EIS is mandated where
uncertainty may be resolved by further collection of data.”
o CEQ regs say agencies are to consider “the degree to which the effects on the
quality of the human environment are highly uncertain.”
 Endangered Species – It’s possible to trigger NEPA EIS requirements without triggering
separate, Endangered Species Act legislation requirements.
 Hanley v. Mitchell (2d Cir. 1972): Urban Environment includes noise, traffic,
overburdened mass transit, crime, congestion, and even availability of drugs.
o EIS probably not necessary where project complies with local zoning
 40 CFR § 1508.3(b) – Indirect Impacts must be considered, defined as “caused by the
action and are later in time or further removed in distance.”
o Classic Example: New federal highway thru rural town must have EIS that
includes discussion of inevitable industry, commerce, & population increases
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 Metropolitan Edison Co. v. People Against Nuclear Energy (1983) – NEPA limited to
impacts on the physical environment only, ignore abstract risk and psychological stress.
3) Detailed Environmental Statement – In Consultation

 Environmental Impact Statement = EIS
o Hundreds to thousands of pgs
o No time deadlines, usually ~ 1yr.
 EIS – Process
o Must Determine Lead Agency – 40 CFR § 1501.5
 That must request cooperation of other agencies – 40 CFR § 1501.6
o (Optionally) Prepare EA
o NOI = Publish Notice of Intent – in Fed. Reg.
 Briefly: Proposed action, possible alternatives, proposed scoping process,
name of lead agency contact
 40 CFR § 1508.22
o Scoping Process
 To “eliminate from detailed study the issues which are not significant or
which have been covered by prior environmental review.” § 1501.7(a)(3)
o DEIS = Draft EIS
 Circulate DEIS for Review (to basically anyone who requests a copy)
 File DEIS w/ EPA
o Notice-and-Comment including a public hearing
o FEIS = Final EIS
 Circulate FEIS for Review
 File FEIS w/ EPA
 40 CFR 1503.4(a) Must respond to comments on the DEIS by
 1) Modifying the proposed action or alternatives, 2) proposing a
new action or alternatives, 3) develop or evaluate new alternatives,
4) supplement, modify, or improve its analysis, 5) make factual
corrections, or 5) explain why the comments don’t’ warrant further
response.
 #5 must be substantive, not perfunctory
o Adopt FEIS
o Agency Decision
 approving/disapproving the project or picking an alternative
o Prepare Record of Decision
o SEIS = Supplement EIS
 When “significant” new circumstances or info or substantial changes
affect the proposed action or its environmental impact. §1502.9(c)
 Same process except no scoping required.
 EIS – Structure
o Cover Sheet,
o Summary,
o Purpose & Need,
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 Broader goal, e.g. NOT to expand # of runways, but YES to develop the
economy and allow for increased regional transportation
o Alternatives (to Primary Proposal)
 The “Core” of an EIS
 Must assess enviro impact of reasonable alternatives as deeply as main
proposal
 At least two alternatives:
 Primary Proposal being evaluated
 Alternative – No Action (Disapproval of Entire Project)
 Any Other Reasonable Alternatives ID’d
o Affected Environment
 Broad definition, see NEPA Policies and Goals handout
o Environmental Consequences
o List of Preparers
o Appendices
Challenging the Sufficiency of an EIS

 Procedural Flaw – note: NOT the term “Procedural” usually used in NEPA context
o E.g. someone not given opportunity to put (written) testimony into the record
o California v. Block (9th Cir. 1982): failure to amend DEIS w/ subsequent changes
in enough time to allow for comment
o EPA Review from § 309 of the Clean Air Act
 Broadly grants EPA additional enviro review authority over merits of
agency proposals themselves, not just impact statements
 But bad EPA review is referred to CEQ w/ possibly no consequences…
courts seem to say the agency must just come back w/ articulable reasons
for ignoring EPA and going forward
 Normal Commenting usually substitutes for § 309 review, and the EPA
limits itself to most severe environmental cases
o Delegating Preparation of EIS –
 Greene County Planning Bd. v. FPC (2d 1972): may not be prepared by
Applicants for federal permit or other approval.
 Sierra Club v. Lynn (5th Cir. 1974) + 40 CFR § 1506.5(b):
Applicants for federal permit or other approval may submit enviro
info needed for EIS or participate in enviro studies.
 40 CFR § 1506.5(c): Contractors may prepare EIS, but submit disclosure
of lack of conflicts of interest. Also, agency must guide, participate,
evaluate independently, and is responsible for scope & content
 Federal Highways specially authorized to delegate to State
Agencies (NEPA § 102(2)(D))
 Housing & Comm. Develop. Act is also special
 Substantive Flaw
o Generally, alternatives not considered on equal basis w/ main proposal
o See the 3 cases below
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 Std. of Review
o Under § 706 “arbitrary and capricious”
 NOT De Novo – no trial;
 limited to the 4-corners of the record before the agency at time of decision
 Judicial Remedy
o for failure to properly conduct EIS = forced to cure the inadequate EIS
o But that can often de facto kill the agency’s project
 Statistics on Challenges
o 10% = No EA; 22% = Inadequate EA
o 5% = No EIS; 8% = Inadequate EIS
o 5% = No SEIS
o 31% = Other
Scope of an EIS esp. Alternatives –

Vermont Yankee Nuclear Power Corp. v. NRDC, Inc. (1978): Energy Conservation
 Federal Agency = Atomic Energy Commission  Advisory Committee
 Federal Action? = Approval, Licensing for Nuclear Power Plant Construction
 Who Challenged? = NRDC jumped into bed w/ stupid local organization, Saginaw, while
attempting to get impact litigation for energy conservation
o Saginaw was rude, just made “manifesto” list of complaints, and generally just
didn’t play well with the agency.
o Challengers wanted to examine energy conservation as an alternative to the new
nuclear power plant
o The new CEQ regs requiring examination of energy conservation were
promulgated after the FEIS in this case and were explicitly not retroactive
 Threshold Test for EIS Alternatives: To force an agency to consider alternatives, they
must be 1) Reasonably Available and 2) Susceptible to a reasonable degree of proof.
o Burden of Proof: “The showing [of these requirements] should be sufficient to
require reasonable minds to inquire further.”
o Key Phrase: “To make an impact statement something more than an exercise in
frivolous boilerplate the concept of alternatives must be bounded by some notion
of feasibility.”
 In-depth review of fewer, more likely alternatives vs. inch deep review of
thousands of alternatives
o Novel Science Sliding Scale: “We think the facts amply demonstrate that the
concept of “alternatives” is an evolving one, requiring the agency to explore more
or fewer alternatives as they become better known and understood.”
o Arbitrary and Capricious Standard of Review under § 706.
 Limited to 4-corner record.
Sierra Club v. J. Marita (for US Forest Service) (7th Cir. 1995): Conservation Biology
 Federal Agency = USFS
 Federal Action = Conducting planning to develop an area of Forest Management Preserve
 Who Challenged? = Sierra Club
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o Various problems w/ Agency’s scientific theory quality in EIS. Argue need huge
clumps of old-growth forest to ensure old forest biodiversity rather than a
patchwork quilt of the same forest spread around.
 Court points out mandate was for diversity, not just old forest biodiversity,
so under Agency’s discretion
 Court deems the In-use Management Indicator Species methodology as a
partial, realistic gauge of diversity as opposed to new proposed methods
 Factual Uncertainty of Novel Scientific Theory: An Agency’s factual theory of the
“uncertain” science at issue will stand unless it is irrational, (Overton or Chevron?) [and
40 CFR §1502.22’s requirement to issue detailed findings on uncertain science may be
fulfilled constructively from post-hoc review (as long as rational factual theory of novel
science was employed in the actual decisionmaking – i.e. Hard Look see Overton)].
o Sierra employs the then newly-developed science of Conservation Biology
o Court says theory was developed in other habitats, court uses that as an excuse to
say the science is “uncertain” enough that the agency’s position is not irrational
o The statutory demand for “high quality” science is not overcome by uncertainty, it
is a question of balancing probabilities
o Court also deferred to Agency’s interpretation of its own legal obligations
 CEQ – regulations increasingly relied upon; here to show reqs of sci analysis §1500
o Scientific analysis must be 1) professional quality & 2) interdisciplinary in nature.
Grand Canyon Trust v. FAA (D.C. Cir. 2002): Cumulative Impact of Noise
 Federal Agency = FAA; Federal Action = FONSI; Expand airport, Zion Natn’l Park, UT
 Who Challenged? = The Trust challenges the FAA’s EA FONSI on noise grounds;
o argues the cumulative impact will be significant on the environment, compare
new airport to natural quiet rather than the incremental impact of the difference
from the new and old airport; FAA waited 6 yrs to issue FONSI for GOP election
 Cumulative Impacts: “The EA [or EIS] must give a realistic evaluation of the total
impacts and cannot isolate a proposed project, viewing it in a vacuum.”
o Extended Rule: A meaningful cumulative impact analysis must identify…
 1) the area in which the effects of the proposed project will be felt;
 2) the impacts that are expected in that area from the proposed project;
 3) other actions – past, present, and proposed, and reasonably foreseeable
– that have had or are expected to have impacts in the same area,
 4) the impacts or expected impacts from these other actions; and
 5) the overall impact that can be expected if the individual impacts are
allowed to accumulate.
o See 40 CFR § 1508.27(b)(7) & 40 CFR § 1508.7 requiring analysis of
cumulative impacts and defining cumulative impacts
o County of Suffolk v. Secretary of the Interior (2d Cir. 1977) – Extra-Record Evid
may be allowed to review agency failure to raise important enviro issue in EIS.
o Std. of Review = arbitrary & capricious
o Cumulative Impact Rule Rationales:
 each small project/expansion/redo is an opportunity to mitigate the
cumulative impacts of all similar projects.
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 if each small project can get out of viewing the big environmental picture,
we won’t save anything and NEPA is pointless
 Kern v. US Bureau of Land Mgmt. (9th Cir. 2002) = Rule for Adequacy of Cumulative
Impacts Analysis in an EIS; pg. 312
 CEQ – Cumulative Impact + Uncertain Science: Cumulative impacts analysis makes
the sci-uncertainty problem worse. Solution = Adaptive Management provisions allowing
flexible project implementation incorporated into the chosen EIS alternative +
Delineation of Project Impact Zones to gauge cumulative impacts.
Adequacy of an EIS upon Judicial Review –

 Policy Question: Assuming that decisionmakers will seriously read and react to the
information in the impact statement, is the statement likely to further the basic goal of
NEPA, which is the promotion of more environmentally enlightened decisions?
 Agency Duties during EIS
o Procedural Duty = the duty to comply sufficiently with the NEPA procedures, so
that the EIS will contain a reasoned analysis on which the decision maker can
base her decision = hard look. (Not referring to procedural notice/comment reqs.)
 Have all enviro impacts and alternatives been considered?
 Have these impacts and alternatives been adequately discussed/evaluated?
 What rules should the agency apply in discussing and evaluating
alternatives/impacts?
o Substantive Duty = reject or modify a proposal if unsatisfactory EIS
 See Methow Valley below & Other cases
 3 Possible Challenges to an EIS
o 1) EIS needs to be performed.
 Challenging a (mitigated) FONSI from the EA usually
o 2) EIS is Inadequate – Procedural Duty
 EIS Minimum = Legal Full Disclosure Document: environmental impacts
of the proposed action.
o 3) Merits of the EIS decision were Arbitrary and Capricious – Substantive Duty
 SCt: Not Winnable
 i.e. Given the unsatisfactory EIS, an informed decisionmaker could reach
no other conclusion but that the proposed action should be rejected or
modified.
 Remedies to EIS Challenge
o Preparation of initial, new, or supplemental EIS
o Injunctions
 Usually plaintiffs ask for a preliminary injunction to preserve status quo. P
must show
 1) probable success on the merits,
 2) irreparable injury, and
o some tit-for-tat in the courts, but not too high a std here
o basically, some courts presume irreparable injury
 3) that the injunction is in the public interest.
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 Some courts employ “NEPA Exception” for injunctions and just
grant them w/out this showing
 Failure to get preliminary  case and project go forward  if project at
point of no return, then case may become “moot”
 Standard of Review for adequacy of EISs –
o Not entirely standardized, Expanded version of Arbitrary and Capricious Std.
o “Rule of Reason” (enables Hard Look): The EIS must set forth sufficient
information for the general public to make an informed evaluation, . . . and for the
decisionmaker to “consider fully the environmental factors involved and to make
a reasoned decision after balancing the risks of harm to the environment against
the benefits to be derived from the proposed action.” The EIS gives assurance that
stubborn problems or serious criticism has not been “swept under the rug.”
 Baltimore Gas & Elec. Co. v. NRDC, Inc. (1983) = Court must review
under the APA “to ensure that the agency has adequately considered and
disclosed the environmental impact of its actions and that its decision is
not arbitrary and capricious.”
 Sylva v. Linn (1st Cir. 1973) = 3 part test
 1) EIS must allow court to determine if agency made “good faith
effort” to account for enviro values
 2) EIS must provide “environmental full disclosure” to public thru
balance of nontechnical and scientific info. No vague, general, or
conclusory reasoning.
 3) EIS must ensure decision integrity by preventing problems and
criticisms from being “swept under the rug”
Robertson v. Methow Valley Citizens Council (1989): Mitigation of Enviro Impacts; Scope of
Affected Enviro = USFS authorized big recreational ski resort; issued a permit as final action
 Rule (1): SCt clearly established that NEPA has no substantive requirement, only
procedural requirements =
o Although NEPA procedures are “almost certain” to affect substantive
decisions, “it is now well settled that NEPA itself does not mandate particular
results, but simply prescribes the necessary process.”
o Not referring to notice/comment/public hearing “procedural”; see above
 Rule (2): NEPA’s “action-forcing” function, implicit statutory demands [42 USCA §
4332[2](C)(ii)], and CEQ regulations all require an EIS contain a detailed discussion
of possible mitigation measures.
o No substantive requirement: “NEPA does not require a fully developed plan
detailing what steps will be taken to mitigate adverse enviro impacts.”
o just consider options, get some cost estimates for decisionmakers
 Rule (3): An EIS need not contain a “worst case” analysis of potential environmental
harm even if relevant info concerning significant environmental effects is unavailable
or too costly to obtain.
o Apparently confusing CEQ regs were cleared up right before this case.
 Adequacy of Mitigation Measures upon Judicial Review
o Courts usually OK them, but fact-specific
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o Neighbors of Cuddy Mountain v. USFS (9th Cir. 1998) = “broad
generalizations and vague references to mitigation measures in relation to the
streams affected” did not satisfy the “hard look” required by NEPA.
o Laguna Greenbelt, Inc. v. US DOT (9th Cir. 1994) = EIS held OK that
discussed mitigation plans but admitted they might not succeed
 Mitigation + Scientific Uncertainty = also held that no EIS
requirement that scientific uncertainties in mitigation measures be
discussed.  possibly not reconcilable w/ other cases
 Adaptive Management – see pg. 319 note 3.
 Enviro Justice Executive Order – see pg. 320 note 4.
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Endangered Species Act (“ESA”)
Endangered Species Act (1974 Nixon) –

 Focus on biodiversity conservation, mainly individual species extinction, but often
requires habitat conservation
 Similar issues raising obligations under NEPA (i.e. habitat conservation), can raise
obligations under ESA
o Still appealing final agency and now private action = funding/approval/proposal
 16 USC § 1530 and following sections
 Classic Cases:
o Once 60 million buffalo in North America, destroyed mostly for sport and
agriculture and train route development
o Spotted Owl, Heinz Emerald Dragonfly, Snail Darter, California Condor, etc…
 Bruce Babbitt – Sec. of Dept of Interior – famous quote
o Most effective environmental protection law
o Most innovative, aggressive in the world
 Limits private property rights, states rights, sends federal gov’t into
 Why did this law get (almost pure consensus) get passed?
o 1) Undeniable congressional endorsement of national values
 i.e. do we want to have the blood of species on our hands
o 2) Congress had no idea the extent of what it was doing
Precursors –
 Lacy Act of 1900
o Commerce Clause exercise
o Ask then: Who owns wildlife? Answer then: Not the federal gov’t, rather the
states.
o States were trying to create state-based biodiversity protection statutes
o This law made it a Federal crime to violate State species protection laws
 Federally Protected Lands
o Forest, Parks, Monuments = Noah’s Arc approach to species protection
o Didn’t really help migratory or wide-ranging animals that crossed to state land
 Then only state protections mattered – farmers hate bears/wolves, etc…
 Piecemeal Federal Statutory Protection
o Migratory Bird (1913); Seal Treaty; Bald Eagle (1926); (1971); etc…
o Focused on a specific species. Problem – never be able to handle the 1000s of
endangered species
 Convention on International Trade in Endangered Species
o Started in 1960s, finished in 70s. Really pushed by the US.
o Attempted an international Lacy Act – if 1 country protects a species, then illegal
to trade in that species w/ convention signatories unless both countries consented
o Required gov’ts designate a responsible agency to deal with these issues  may
have been final prompt for ESA getting passed
 Fish and Wildlife is in charge in US
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Focus on §§ 4, 7, 9, and 10 – see handout

 § 4 – Listing Authorization
o Authorizes Dept. of Interior (terrestrial animals) or Dept of Commerce (Marine
life/Anadromous Fish) to create list of threatened/endangered species by
rulemaking process  can also De-List
o congress doesn’t need to pass species-specific legislation
o Any citizen may petition for a species to be listed – typically Fed. Agency tho.
 Secretary of Dept. of Interior has nondiscretionary 1 year to respond:
 reject or accept and move to rulemaking
o Federal Register  Notice & Comment  In Consultation w/ States of habitat 
Listing = Final Agency Action
 5 Reasons Species Get Listed as Threatened/Endangered:
 1) Habitat Destruction or Modification – most common
 2) Overutilization – overhunting, overharvesting
 3) Disease or Predation – even non-human extinction protected
 4) Inadequate Protections – population/subspecies w/in a
significant portion of its range threatened by human activity
o e.g. snake hunt in TX or wolf hunt in MT
 5) Other Natural or Manmade Factors – catch-all
o Defines Endangered: Any subspecies of fish, wildlife, or plant that is endanger
of extinction throughout all or a significant portion of its range
 Subspecies = small variations in species gets more protection
 Significant Portion of its Range = e.g. 50,000 grizzlies in Alaska, 20,000
in Canada, but b/c only several hundred left in Yellowstone (compared to
Mississippi to Pacific as previous range)  listed; receive protection
o Defines Threatened: Likely to become endangered in the foreseeable future
 § 7 – Restriction/Limits on Federal Action; seems like NEPA
o Fed. Agencies must not jeopardize continued existence of listed species
(including protecting critical habitat)
o Consult w/ Fish and Wildlife Service (sub-agency in Dept of Interior)
o Differs w/ NEPA dramatically:
 If Fed. Activity will jeopardize continued existence = Agency BARRED
from acting (TVA v. Hill).
 Note – not just a procedural requirement  substantive prohibition!
o Procedural Obligations of Federal Agencies –
 1) In Consultation Requirement – Parallel to NEPA; The federal agency
proposing to take action must inquire to Dept of Interior/Dept of
Commerce to determine if final action would adversely impact
threatened/endangered species
 2) Biological Assessment – must complete if may destroy/adversely effect
(sub)species or critical habitat
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 3) US Fish & Wildlife/Dept of Commerce Issue Biological Opinion –
the biologist’s results can shut down the entire project
 § 9 – Restrictions/Limits on Private Action

o unlike NEPA, ESA regulates private action
o Exponentially grows Fed. Gov’t’s ability to regulate private property
o 70-80% of endangered/threatened species were on private land at ESA passage
o Term of Art – “take” = any activity in which one “harasses, harms, pursues,
hunts, shoots, wounds, kills, traps, captures, or collects, or attempt to engage in
any such conduct.” 16 USC § 1532(19).
 Includes: significant habitat modification or modification where it
actually kills or endangers wildlife by threatening essential behavioral
patterns such as breeding, feeding, or sheltering
 Taking Plants: slightly different, entering a property you do not own
(including Federal Land) for the purpose of taking plant species. However,
the property owner can “take” the plant.
 Obligation to Know: imposed upon the private party – lots of biologist &
atty compliance consultants
 § 10 – Incidental Taking of Species
o Added by amendment in 1982.
o The Sec. may (discretionary) issue a permit for an activity that would otherwise
be a prohibited taking if…
o “An individual member or individual members may be harmed as a result of an
activity, but the activity is done in a context where the overall viability of the
species is not affected, or may in fact be enhanced.”
 E.g. killing more endangered dragonflies through special bridge
construction now, and this special elevated bridge will mean fewer
endangered dragonflies die over long-term = OK!
o When US FWS issues its biological opinion, can say we will approve this project
if these conditions are met  this is an Incidental Taking Statement.
o Private parties obligated to proactively apply for Incidental Taking Permits
 Centerpiece of Application = Habitat Conservation Plan
 On-site + off-site measures that the private developer will commit
to, in perpetuity, that will raise the overall, long-term viability of
the protected (sub)species.
 Decisions on Permits = Final Agency Action  NEPA triggered too!
o § 10 has defused a lot of economic vs. environmentalist tension.
Tennessee Valley Authority v. Hill (1978) – First ESA in SCt; ESA § 7 “Gets Teeth” = ESA
Substantive Requirements!
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 Hill = 2nd year law student at U of TN, suspended from law school, hangs out w/ biologist
students at U of TN – hippy lib scientists. Prof. Platner finds fish. Hill gets back to school
– comes up w/ this case as a seminar paper topic. Petitioned for listing; 1st petition ever!
 Strong regional support for a power generating damn vs. economically dubious
o Initially inadequate EIS, remedied, continual fighting over this dam
o Congress continued to fund the project to the tune of tens of millions of $s.
 Newly discovered Perch: Snail Darter – not listed as endangered/threatened
o Unique to Little Tennessee, requires fast-flowing water, would be adversely
affected by dam and lake creation
 District Ct – found adverse modification or destruction of critical habitat, but we won’t
stop a substantially completed project
 6th Circuit – reversed: we don’t weigh – there are substantive reqs in the ESA
 SCt under Chief Justice Berger (Conservative) –
o Thinks ESA is stupid, but looks at Plain Meaning and Legislative Record of Intent
o Very clear ESA language + uncontested facts + no exceptions = stop the dam!
 Injunctive relief stopping construction
o He was trying to force Congress to ‘clean up its own mess’ rather than the Cts
 1 million lawsuits w/ complex factor weighing is too burdensome
o Gives § 7 of ESA real power and meaning for separation of powers purposes
 Hank Hill becomes a legend!
 Post-Decision –
o TN Senator gets a rider in budget exempting the TVA Teleco Dam from ESA
o Also, turns out snail darters are EVERYWHERE – not a critical habitat!!!
Lecture
 Determining Critical Habitat
o Note – it is much easier to designate a (sub)species as threatened or endangered
than figuring out what is a threatened/endangered species’ “critical habitat.”
o Standard for Designating Critical Habitat = to the extent “prudent and
determinable.”
o Really controversial w/ rural, large area, private property owners.
 Development of a Recovery Plan
o Goal = getting threatened/endangered animals back to unprotected viability
o These are becoming more common b/c habitat designation is so complex that its
scope of protection has become more modest than a robust recovery plan.
 Delisting
o Declaring victory!
o Extremely controversial usually.
o Must show the causes of listing have been removed/ameliorated
o EPA: Still keep a bunch of protections, not just a “hands off” approach
 US FWS does excellent job or chronicling their activity w/ regard to a given species.
Gibbs v. Babbitt (4th Cir. 2000) – ESA § 9 Constitutional under Commerce Clause Analysis
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 Challenge constitutionality of a Fish and Wildlife Service reg that limits the taking of red
wolves on private land.
 Held: The regulation prohibiting taking of endangered species is a valid exercise of
federal power under the Commerce Clause.
 Facts
o FWS was introducing experimental populations of red wolves into new rural areas
and some people there (ranchers) were shooting them and getting generally
pissed.
 Wolves entirely intrastate = North Carolina
o FWS responded by allowing private landowners to kill the red wolves if self-
defense etc… if they notify FWS w/in 24 hours
o N. CA law: the farmers can 1st requested that FWS remove the red wolves from
the private land and if FWS failed to do so in 24 hrs, the farmer can take the wolf.
 We’ll see the feds/states have concurrent regulator Jx, so fed trumps.
o Challenge from 2 counties + farmer who shot wolf that he “feared would”
threaten his cattle
 Reasoning
o Lopez/Morrison framework judicially enforceable outer limits on CC:
 Goes thru Commerce Clause historical jurisprudence, skip ahead…
 Under the 3rd Lopez test, regs have been upheld when the reg’d activities
“arise out of or are connected w/ a commercial transaction, viewed in the
aggregate, substantially affects interstate commerce.”
o How does this reg economic activity substantially affecting interstate commerce?
 Red Wolves = tourism, scientific research, commercial trade in pelts
 Tourism = $30/billion annual national wildlife recreation industry
 $100,000,000s /yr expected for the experimental pop. host states
 Science: “Value of this genetic heritage is, quite literally,
incalculable… potential resources… [undiscovered] cures [for
diseases]…” etc…
 Trade in pelts.  a little bit of a stretch
 May aggregate effects of individual Red Wolves for CC analysis to get to
“substantially affects interstate commerce”
o Also, the regulation is sustainable as “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated.” Lopez; see also Hodel v. Indiana (test applied
to total reg framework, individual regs that are integral to framework also pass)
o More stuff on “area of traditional state concern” CC jurisprudence. Talk about
concurrent state + federal jurisdiction. Historical examples and precedent.
 E.g. Sweet Home below.
 Conclusion: “Of course natural resource conservation is economic and commercial. …
[don’t want to] open the door to standardless judicial rejection of democratic initiatives of
all sorts… [court not weighing the wisdom, just constitutionally allowed + deferring to
separation of powers]… The political, not the judicial, process is the appropriate arena
for the resolution of this particular dispute.”
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Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) – ESA § 10;
Habitat Modification Included in Harm for Concept of ESA “Taking”
 Interior Department/US FWS Regulatory Definition of Harm = Harm in the definition
of “take” in the Act means an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including breading,
feeding, or sheltering. 50 CFR § 17.3 (1994).
o Note US FWS is sub-part of Interior Dept.
 Limitation on § 9 “take” Prohibition: § 10(a)(1)(B) = the Sec. can grant a permit for any
taking otherwise prohibited by § 9(a)(1)(B) “if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.” 16 USC § 1539(a)(1)(B)
 Facts
o A logging company doesn’t want to comply w/ ESA: incidental permits, NEPA
triggered (EA/EIS), etc…
o This challenge is 20 years after the reg definitions have been promulgated.
o US SCt took this case b/c of circuit split over time.
o Basis of argument: interpretation of congressional record/intent + point out 5th
amend authorization for gov’t to buy private land to prevent habitat degradation
o Protected species = red cockaded woodpecker + spotted owl
 Reasoning (Stevens):
o Looks to Webster’s, “harm = to cause hurt or damage to: injure”
o Textual canons.
o Broad purpose of ESA.
o Later Congressional Action: § 10 passage implies Congress intended § 9 to apply
to indirect as well as deliberate takings
o Chevron Deference Applies
Lecture – ESA Practice Exam Question

 Start w/ § 4  7  9  10
 § 4: Exam is not explicit that Black Crown Night Heron is listed for protection
o “the fundamental question is whether… so we must turn to the US FWS public
notice … to determine.”
o Facts contain woman from US FWS  indicates probably listed, so continue
analysis (it’s a freaking exam)
 § 7: Is there federal action that could jeopardize? Yes  Federal Funding
o biological assessment + biological opinion req’d
 § 9: Any “taking” going on? Yes  look at the broad definition; shooting BB guns, HWs
 § 10: Advise the uncle to go for an incidental taking permit.
o make a note about NEPA possibly applying either way, this is safest legal strategy
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Clean Water Act (CWA)

Generally; Point Sources; Non-Point Sources; TMDLs & 401 Certifications; Wetlands/Filling
Clean Water Act Passage

 1972 bipartisan law
 Passed over Nixon’s veto
o Thought that Fed gov’t was shifting too many responsibilities to states w/out
adequate funding
 Reason it passed?
 Not b/c NEPA, CAA, CWA, RCRA, ESA were products of strong national impetus
 Cleveland, OH was the spark
o Lake Erie (shallowest great lake) was regarded as a “dead lake” at the time.
o Nitrogen + Phosphorous in fertilizer and consumer products cause algal blooms
o Decomposing, overgrown plant life sucks the oxygen out of the lake =
putrification.
 Hypoxia still occurs seasonally in the Gulf of Mexico
o Massive fish die offs washed ashore regularly
o Same thing starting to happen in Lake Michigan
o Then the Cuyahoga river (middle of the city) started on fire.
 Nixon was pissed, so hamstrung it’s implementation right off the back
 Note the Safe Drinking Water Act (SDWA) came later, CWA doesn’t really focus on tap
water for drinking.
 CWA intended to protect the quality of the interstate waters already in place
 CWA Ultimate Goal: all waters of the US should be fishable and swimmable.
o Naively thought it would only take 5 years… it’s now 2010, 38 years later
o Fishable – important b/c it requires water ecosystem be intact
o Note, NOT drinkable
 Today CWA Focus: try to get the water to be suitable for the primary purpose for which
it is used
 CWA Scope Open Question: does CWA protect wetlands from filling and transforming
into dry land – Subject of 3 SCt cases and a huge mess.
Constituent Programs – SEE SCANNED DIAGRAM

 CWA Interim Goals
o 1) Permit System. Eliminate discharges of pollution effluent into waterways w/out
a permit,
 Monitoring, recordkeeping, reporting requirements
o 2) Anti-Discharge. Eventually eliminate water discharges of pollution altogether
o 3) Anti-Degradation. Eliminate the degradation of waterways
 Have to keep innovating as economy expands and demands of water
resources increase
o Different programs attempt to achieve each of these goals
 NPDES – National Pollutant Discharge Elimination System
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o Point Source = Very Broad: any discernable confined and discrete conveyance,
including, but not limited to, . . . [long list] . . .
o 4 General Types of Pollutants
 1) Conventional Pollutants. (EPA’s top 5 hit list.)
 Substances which have a high biological oxygen demand,
o E.g. nitrogen & phosphorous
 Suspended solids,
 Fecal Coliform,
o Indicator of pathogens rather than disease carrier itself
 Non-Neutral PH, and
o Bases and acids
 Oil & Petroleum Products.
 2) Toxic Pollutants. (120+)
 Metals, Organics, and Pesticides.
 3) “Unconventional” Pollutants.
 Ammonia,
 Chlorine,
 Iron,
 Byproduct of wastewater treatment, some are just aesthetic
problems, but still regulated
 4) Storm Water Drainage
 Often picks up a lot of other pollutants on its way thru the drains
 5) Thermal Discharge
 usually utilities, can be lethal to temp-sensitive fish
 NPDES Permitting Jurisdiction: 1) Addition 2) of a Pollutant 3) from a Point Source 4)
into a Navigable Water of the US. See CWA § 502(7), (12), (14).
 4 Permitting Categories (Soon to trade Generalized for TMDL): Direct/NPDES,
Indirect/POTW, Generalized Runoff, Filling, TMDL
 #1: Direct Dischargers: NPDES Permitting
o Permits needed for new construction or ongoing use
o Authority to issue permits has been delegated to the states
o Obligation to know placed on regulated entity
o Step 1 – regulated entity must apply for a permit
o Step 2 – circulate draft permit
o Step 3 – notice + comment period
o 40 CFR § 400: NPDES permits require
 The Magic Box: Pollution Controls – e.g. Wastewater treatment unit
between wastewater and discharge, operational standards, best practices.
 Monitoring Unit: must test and keep records of levels of pollutant
concentrations in the discharged wastewater
o New vs. Existing (as of late 1970s) Facilities
 Old facilities get grandfathered in until they all just die out
 New facilities easier to build right that upgrade
 CWA = “technology-forcing”
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 reqs use best available
 w/ moving goal posts
 Common Problem: When does upgrading/refurbishing an existing facility
change it to a new facility?  fact-sensitive determination
 #2: Indirect Dischargers = Sewer Discharge Permit
o Anyone who dumps into the city’s sewer system
o Permits issued by the operator of the Publicly Owned Treatment Works (POTW)
– a unit of local gov’t
 The city itself is still a direct discharger and needs NDPES permits
o 40 CFR § 400
 requires the indirect discharge to engage in categorical pretreatment w/ a
monitoring program
o 3 Categories of Requirements for Indirect Dischargers: BAT; BDT; BCT
 see 40 CFR 400 below.
 #3: Generalized Runoff
o No defined point of discharge; no point source
o Farms, subdivisions, roads, airports, malls, parking lots, etc…
o Currently ~ 70% of US water pollution from nonpoint sources
o 40 CFR § 319 – Best Management Practices Program (BMP)
 Responsibility to develop and implement BMP delegated to states
 BMPs tend to be advisory, educational, outreach – not coercive,
not legally binding
 Dismal Failures
 This is all likely to change during our careers
 #4: Filling-in or Dredging of Rivers
o Where you raise the riverbed by throwing so much crap
o Rivers and Harbors Act of 1899 – Army Corp of Engineers has responsibility to
oversee activities w/ potential to obstruct free navigability of US waters
o CWA just expanded that responsibility
 Except Michigan is special
o Huge (open) legal problem – what if filling occurs in adjacent wetland to water?
 (Soon #5) TMDL – Total Maximum Daily Load Program
o According to primary purpose of a given waterway, Water Quality Standards
(WQS) – waterway must be kept suitable for that primary purpose
 Purposes e.g. fishing, recreation, drinking
o States must survey each body of water and
 do testing on their WQS (nitrogen levels, oxygen levels, etc…)
 determine sources of pollutant loading
o Uses predictive modeling to ID pollutant sources & determine max. daily loading
o The surveys are currently underway across the US
o Likely outcome = Generalized Dischargers will face mandatory, not advisory,
BMP
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US v. Plaza Health Laboratories, Inc. (2d Cir. 1993) – This case does NOT give a
precedential normative rule of law. It is more of an illustration of the Scope of the CWA.
 Owner of blood testing lab in Brooklyn took a bunch of Hepatitis B blood home and set
the blood vials in a below-tide crevice. The tide would come up and ‘take care’ of his
problem.
 Prosecutors chose to bring criminal charges
 Basic CWA Rule: Absent a permit, “the discharge of any pollutant by any person” is
unlawful. 33 USC § 1311(a).
o Definition Pollutant: (in part) “biological materials. . . discharged into water.” §
1362(6).
o Definition Discharge: “any addition of any pollutant to navigable waters from any
point source…” § 1362(12).
 Issue: was this a “discharge”  i.e. is this “from any point source”?
o Definition Point Source: any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or
vessel or other floating craft, from which pollutants are or may be discharged.
This term does not include agricultural stormwater discharges and return flows
from irrigated agriculture. § 1362(14).
 Defense Argument (successful) –
o Congress didn’t intend to criminalize individual acts/human behavior, rather
industrial, municipal, and commercial “point sources”
 Language of CWA and EPA regs in various areas refer to structures and
owners of point sources – not humans as point sources
 Goes through legislative history – point source = legislative history
 Goes through case law basically not having the issue of individual human
acts come up and hewing more closely to the definition of point source
o EPA Regulations – EPA focused on discharges through pipes, sewers, or other
conveyances
o Parade of Horrible Results – Finding against D would criminalize littering, peeing
in water, etc…
 Hole in Reasoning – “container” is w/in the definition of point source.
 Rule of Lenity – Criminal provisions of CWA did not clearly proscribe D’s conduct and
did not accord him fair warning of sanctions  rule of lenity = no crime.
 Takeaway – Courts tend to disfavor the criminalization of environmental law
violations.
40 CFR § 400 et seq. = Point Sources Lecture

 See handout
 Includes: BCT, BAT, BDT, Pretreatment
o BCT: Best Control Tech; BAT: Best Available Tech; BDT: Best Demonstrated
Tech.
 NOTE: Individual Control Strategies – limitations may be altered to reflect the
sensitivity (i.e. level of contamination) of the receiving waters
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 Mandate to US EPA Administrator
o Develop effluent limitations for difference source categories based on the best
available technology for that (sub-)category.
o Impose these effluent limitations and reductions through permitting.
 Important Distinctions
o Existing vs New Sources – cutoff typically March 31, 1989.
 Existing can be so significantly modified as to constitute a new source.
 Cutoff = day US EPA finished new regulatory stds – took much longer
than planned
o Existing Sources
 Much more lenient
 Existing – Conventional Pollutants: EPA may use cost-benefit analysis
o New Source
 Variances = Optional for EPA: Source can show fundamentally different
situation and regulation should not apply. EPA has discretion to issue
variance to requirements.
 DuPont – lack of variance option is not legally inappropriate
o Obligation to know is on new facility owners
 No Cost-Benefit Analysis
E. I. Du Pont De Nemours & Co. v. Train (1977) – Du Pont Assaults EPA’s Effluent
Limitation Authority
 EPA Rule – Effluent limitations standardized for all sources by category
 Du Point Alternative – EPA can’t make categorical rules that apply effluence limits. EPA
must tailor the regulations to each entity.
o Would effectively kill EPA’s ability to mandate effluent limits w/ the extra work.
o Also, each permit would be a rulemaking/final agency action that is subject to
judicial challenge
 Issues: 1) whether EPA has authority under § 301 of CWA to issue industry-wide regs
limiting discharges by existing plants; 2) whether Court of Appeals has Jx under § 509 to
review the regs concerning existing plants; and 3) whether the new-source stds issued
under § 306 must allow variances for individual plants
 Held:
o 1) EPA clearly has the authority and responsibility to issue industry-wide
regulations limiting effluent discharge of specific plants.
o 2) not important to us.
o 3) Variances are optional for new plants – obligation to know is on the new plant
owner.
Association of Pacific Fisheries v. EPA (9th Cir. 1980) – Effluent Limitations: Studies
 Challenge to regs establishing effluent guidelines for Canned and Preserved Seafood
Processing Point Source Category
 Court reviewing EPA’s decision by the record before the agency at time of final agency
action (promulgation) under Arbitrary and Capricious Std.
 Held:
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 1) EPA may base effluent limitation regulations on only 1 study on a given technology
for a given point source category, but the study must demonstrate the effectiveness of the
required technology.
o Most CWA control technologies, including air-floatation units here, are not rocket
science.
 2) EPA cost-benefit analysis based on only 1 model plant must not reflect costs that are
site-specific where other sites may experience significant differences in cost estimates.
o Aerated Lagoons take a lot of land; cost varies by location
o Agency required to determine economic impact, set forth amount of land needed
for various sized plants, avg. cost of land for ID’d facilities, and whether it is
reasonable to assume there is available land for the lagoons
 Note that air-floatation unit vs. Aerated lagoons are very similar. The lawyering here was
really good to get the court to accept distinctions (apparently).
40 CFR § 400 Continued – Indirect Discharger: Pretreatment

 See the handout (separate sheet from BCT, BAT, BDT).
 This applies to water discharged into a sewer system
o Publicly Owned Treatment Works (POTW)
 Units of Local Gov’t may impose/preempt w/ more stringent, specific standards and may
impose additional requirements
South Florida Water Management District v. Miccosukee Tribe of Indians (2004) –
 See scanned diagram.
o Pump (S-9) keeps developed agriculture from flooding by emptying polluted
(phosphorous fertilizer) generalized runoff canal thru 60 feet
 Issue: whether the pumping thru S-9 of the already polluted generalized runoff water
constitutes an addition of pollutants to navigable waters from a point source.
o If a point source  must get NPDES permit that would probably require
controlling the phosphorous (really expensive)
 S. FL Mgmt doesn’t want to have to retrofit their 1000s of pumps.
o S FL says, merely conveying generalized runoff through a pump does not turn it
into a point source.
 Reasoning
o Point Source definition under CWA includes “conveyance” = just like pump S-9.
o All sorts of centralized water treatment/conveyance activities need NPDES
permits and pollution control equipment to meet stds in their source category
o S. FL Mgmt argues non-point source pollution = § 319 best mgmt practices: BMP
o O’Connor response = it can be both a nonpoint and also a point source
 Suggests: nonpoint source pollution that is aggregated becomes a point
o Unitary Waters Approach: Gov’t argues S. FL is scooping up a ladle of soup
and dropping it in the same pot b/c the water systems are united as 1 body. Tribe
argues the gov’t is ladling from 1 pot to another pot b/c 2 water systems.
  Could be a get out of jail free card for a ton of polluting situations
  O’Connor says this would be a fact-intensive, scientific inquiry
 Vacated and remanded for further argument.
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Achieving Water Quality Standards: TMDLs and § 401.
 TMDL = Total Maximum Daily Loads; pg. 663
 States have huge influence in approach called cooperative federalism.
 50 states and 7 territories have authority to be implementing agency through NPDES
permitting program.
o State in charge of issuing permits, monitoring, enforcement
 TMDL Process: Under archaic and modern CWA, it is up to states to…
o 1) inventory all water bodies w/in the state,
o 2) designate the primary purpose of a waterway,
 Each state can create its own classification program.
 E.g. primary vs secondary; general vs secondary; drinking,
recreational, fishing, industrial, agricultural
 Interstate Waters – US EPA intervenes if there is a difference of opinion
o 3) ID water quality stds necessary to sustain the primary use,
o 4) test the waters,
o 5) list all impaired waters (don’t meet WQS) 
o 6) non discretionary duty on states to ID sources of impairment and
 pretty hard to do; have to rely on computer modeling
o 7) ID best mgmt practices to reduce contributions to impairment from each source
Pronsolino v. Nastri (9th Cir. 2002) – TMDL: Nonpoint Source Pollution Politics
 Water Body = Garcia River in CA
 Pollutant = sediment loading from timber industry (Pronsolino), roads, & erosion
 EPA mad at CA – impaired waters list: CA is omitting waters that failed to meet water
quality standards due to nonpoint sources
 EPA to CA: 1) List all the impaired waters and attempt to get control over the nonpoint
sources of impairment or 2) EPA steps in and take control of the aspect of CA’s TMDL
o Pronsolino would have to undertake mitigation and comply w/ timber restrictions,
estimate $750,000.
o Mailliard – Mendocino County Farm Bureau – cost estimate = $10 million.
 Pronsolino & Mailliard says nonpoint source impairment not w/in authority of US EPA
o Have a point: State’s Best Management Practice programs tend to be non-
coercive, more convincing
 Ct: Water Quality Stds reflect a state’s designated use for a water body and are not
dependent in any way upon the source of the pollution – plenty of statutory support
 Held: Nonpoint sources that contribute to water body impairment (of WQS) are w/in
scope of TMDL & EPA’s authority. (Just like point sources).
o Just b/c the EPA now has the judicially-recognized power to regulate nonpoint
sources of impairment, doesn’t mean they’ll be able to politically take on special
interests: farming, construction, chemical mfg, timber, etc…
o But TMDL is mandatory under the act. We’ll see how this plays out soon!
 § 401 Certification
o Apex of state authority under CWA
o When a regulated entity applies to any federal agency for a license or permit: as
part of obtaining the license or permit, the entity must provide proof of § 401
certification from the state in which they will be located.
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o Contents of § 401 Certification:
 State says applicant’s project or activity will not harm the water quality
S.D. Warren Co. v. Maine Board of Environmental Protection (2006) –
 See Harvard Environmental Law Review Article
 SD Warren has hydroelectric dams on the Presumpscot River in Maine since 1935.
 The federal operation licenses are potentially subject to section 401 b/c the dams, mainly
in the impoundment stage, cause changes to the Presumpscot’s rate of flow, temperature
stratification, nutrient content, sedimentation patterns, and oxygen concentration that
contribute to the river’s failure to reach relevant WQSs.
o SD Warren argues, CWA doesn’t apply b/c no “discharge” into river!
 Maine is willing give certification, but needs conditions to meet WQS: 1) must have
minimum stream flow for the bypassed portion 2) must have alternative path for eels and
fish … rather than thru turbines…
 Under CWA, Fed Agency can’t give licenses w/out § 401 certification from Maine.
Inversion of normal Federalism.
 Justice Souter, writing for the Court, held that the meaning of the term “discharge” in §
401 cannot be contained to the bounds of “discharge of a pollutant” as used in § 402,
since “discharge” is deemed separately as merely “includ[ing]” the “discharge of a
pollutant.”
o In lieu of any specific definition of “discharge” itself, Souter interpreted the term
in accordance with its dictionary meaning.
o Define Discharge for § 401: “flowing or issuing out.”
 Effects: Now states may impose certification limitations on such dams that will address
water quality for the next thirty to after years, the usual time-span for FERC licenses.
This is especially important because dams are often cited as one of the largest remaining
contributors to water pollution problems in the United States. A range of measures, from
ash passages to adjustments of water flow patterns, can be employed by dam owners to
improve water quality. On the other side of the scale, the effects of this decision may not
be entirely positive if regulation adversely affects electricity prices.
 Note: This gives the political leaders of a state or state enviro agency a huge club for
good or ill purposes &
 Note: Could be the future of nonpoint source “discharge” regulation!
Dredge and Fill Permits – What Constitutes Navigable Waters of the US?
 This section applies to physical, solid, tangible material that fills in a waterway by
elevating the depth.
 § 404 Command: Thou shall not fill or dredge flowing, navigable waterways (or their
tributaries) of the US unless thou obtain a § 404 permit from the Army Corp of Engineers
o Rivers & Harbors Act of 1899 – prevented construction of physical structures in
water bodies to ensure navigability
 Broad authority given to US Army Corp of Engineers over wetlands
 Notion of Public Interest Review introduced
 Ironic b/c USACE originally charged w/ filling in ½ US’s wetlands…
o Don’t confuse other water dumping permits we’ve studied:
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 NPDES – issued by State; Sewer = unit of local gov’t
 Stage 1: Basis for USACE Denial of a § 404 Permit Request  handout
 § 404 Permitting Triggers
o Permit decisions = Final Agency Action  NEPA trigger: almost always EIS
o Stage 2: Public Interest Review (handout): must consider fish & wildlife  ESA
trigger
o Filling Affects WQS  state § 401 certification trigger
 Filling Affects Impaired Water Body WQS  TMDL trigger
o Public Process: opens up suits by 3rd parties not being paid attention to.
 Stage 3: Mitigation  See handout.
o Feel-good measures: “cement ponds,” Wetland banking credits, etc…
 Army Corp began to think it’s broad mandate extended to wetlands.
o Not necessarily flowing, not necessarily something you could drive a boat thru.
o Not necessarily continuously covered by water – seasonal.
o This expansive view of the Army Corp’s permitting authority scared the absolute
living shit out of land developers. (see triggers above).
 § 404 Statutory Exemptions Examples
o Farmers acting in regular farmer ways
o Temporary sediment basin
o Construction of farm or forest roads
o State approved nonpoint source mgmt programs
 General § 404 Permits Examples
o Typically nationwide, but possibly regional/state
o Developers use at their own risk
 Must defend decision/assessment of the seriousness
 USACE Enforcement or citizen suits
o Minor road activities
o Utility line backfill
o Shoulder or bank repair
 Letters of Permission
o Minor projects w/ no significant or cumulative impact and no appreciable
opposition to them and mitigation undertaken
o Developer can request (alternative to permitting) district ‘engineer’ aka
’superintendent’ who has sole discretion
o Analogize to EA  light review, no public involvement
3 § 404 Cases: See Drawing Summary
US v. Riverside Bayview Homes, Inc. (1985) – § 404 Permitting Scope: Wetlands
 Relic [Aquatic] Vegetation Test for § 404 Jx: Whether there exists a hydrologic or
hydrogeologic connection to a navigable water such that the adjacent wetland can support
aquatic vegetation.
o AKA: Prevalence of aquatic vegetation that could not grow but for, time-to-time,
that ground is inundated.  do NOT use this language: “flooding test”
o Obligation to Know: developer must determine if their site is a “wetland”
 Biologist consulting firms do testing
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 Riverside owned 80 acres of wetland in Michigan. They began dumping fill materials
from housing construction into the wetland. The particular wetland in question was near a
lake, but didn't feed directly into the lake, so Riverside felt that they did not need a
permit.
 The USACE felt that the wetland met the definition of an adjacent wetland.
 The 6th Circuit found that the wetlands were "not subject to flooding by adjacent
navigable waters" and so weren't covered.
o Basically, the Appellate Court said that polluting a body of water is only covered
if that pollution can move into a navigable water. In this case, the pollution
Riverside was dumping would likely stay in the wetland and not seep into the
nearby lake, so it was not covered.
 The US SCt reversed and held that a permit was required.
 Chevron Deference = Arbitrary and Capricious Std.
 The US SCt found that it is difficult to define where "water" begins and "land" ends, so it
is a challenge for the USACE to determine where their authority ends.
o The Court decided to interpret the term "waters of the United States" broadly, and
found that the USACE's ecological judgment about the relationship between
waters and their adjacent wetlands provides an adequate basis for legal judgment
that adjacent wetlands may be defined as waters under the act.
 Basically, the Court said that waters covered under the act include any waters that the
USACE reasonably concludes may affect the water quality of adjacent lakes rivers and
streams, even when the waters of those bodies do not actually inundate the wetlands.
o Basically, the Court said that since it is difficult to define jurisdictional
boundaries with precision, it's best to leave it up to the scientists to use a
functional approach to the jurisdictional reach of the Clean Water Act.
Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corp of
Engineers (2001) – § 404 Permitting Scope: Seasonal Quarry Ponds; Wholly Isolated
 Cook County had an abandoned open pit mine. The mine had flooded with water and
had become a de facto lake. Cook Country decided to fill the pit up with trash. The US
Army Corps of Engineers (USACE) sued for an injunction.
o Cook County argued that they did not need a permit because the de facto lake was
not connected to any other body of water.
 1986 & 1987: USACE assured Cook County it had no Jx b/c waters
isolated, intrastate, seasonal, no hydrogeologic connection
 Senate Majority Leader Hastert had a NIMBY problem w/ the trash
o (Failed) Migratory Bird Theory: USACE argued that even though the lake was
unconnected (and wasn't even a natural lake), it was now home to 100 species of
migratory waterfowl, and since the birds fly across State lines while migrating,
they are interstate commerce and therefore covered under CC Federal jurisdiction.
 The US Supreme Court reversed and found against USACE.
o Chevron Deference not appropriate b/c of plain meaning: violated A & C std.
o The US Supreme Court looked to their previous decision United States v.
Riverside Bayview Homes, Inc. which said that the word "navigable" was of
"limited effect" and found here that "limited" didn't mean "zero."
 Basically, Congress' use of the word "navigable" must be construed to
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mean that they did not intend for the CWA to cover completely isolated,
intrastate bodies of water.
 "Where an administrative interpretation of a Statute invokes the outer
limits of Congress' power, we expect a clear indication that Congress
indented that result."
 Note: States Can Still Regulate Completely Isolated Intrastate Waters!
o The Court further found that permitting the USACE to claim Federal jurisdiction
over ponds and mudflats would result in a significant impingement of the States'
traditional and primary power over land and water use.
 Post Court – the land appreciated in value so much that it got used for other purposes.
Rapanos v. US (2006) – § 404; SCt has a fistfight. – See Handout of USACE reaction
 Rapanos owned some wetlands that were isolated and 20 miles away from the nearest
navigable waterway. Trying to play by the rules, but ‘failed’ the consultant’s relic
vegetation test. Got super pissed and cranky. In open defiance of the law, he filled the
wetlands with sand in order to build a shopping mall without getting a permit.
 The US Army Corps of Engineers (USACE) fined Rapanos for not getting a permit.
 Rapanos was convicted in a criminal trial and was forced to pay millions of dollars in
civil penalties. He appealed the civil penalties.
o Rapanos argued that since the wetlands were not connected to a navigable
waterway, they were not covered under the CWA.
o USACE argued that, based on the ruling in United States v. Riverside Bayview
Homes, Inc., any waters that USACE said were covered were covered.
 The Appellate Court affirmed. Rapanos appealed.
 At the same time, a developer named Carabell had sought a permit to build
condominiums on 19 acres of wetlands, but the request was denied by the USACE.
o Carabell sued, arguing that the Federal government did not have jurisdiction.
 The Trial Court found that the Federal government had jurisdiction. Carabell appealed.
 The Appellate Court affirmed. Carabell appealed.
 The US Supreme Court combined the two cases.
 The US Supreme Court overturned the Appellate Court decisions and ruled that the
USACE did not have jurisdiction.
o The US Supreme Court was extremely sharply split. While they were able to
come to a 5-4 decision about reversing the judgments against Rapanos and
Carabell, they were unable to come to a majority decision on the details of where
the jurisdictional limits should be drawn.
o The plurality of Justices looked to the plain language of the CWA found that the
term "navigable waters" in the CWA could be extended to waters which were
connected to navigable waters, but not isolated bodies of water that were not
directly connected.
 "The only plausible interpretation of the phrase 'the waters of the United
States' includes only those relatively permanent, standing or continuously
flowing bodies of water 'forming geographic features' that are described in
ordinary parlance as 'streams, oceans, rivers, and lakes."
 The plurality looked to their decision in SWANCC and recognized that if
there were a significant nexus between the wetland and a navigable body
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of water, it could be covered under the CWA, but in the present cases, the
wetlands were well isolated.
 A wetland that is adjacent to a navigable water, or connected by a
continuous surface flow would constitute a significant nexus, in
Scalia's opinion.
 In a concurring opinion, Justice Kennedy disagreed with the plurality on what exactly
constitutes a significant nexus.
o Kennedy felt that the USACE should be allowed to go back to the lower courts
and introduce evidence that could establish that there was a significant nexus.
 In a concurring opinion, Justice Roberts suggested that the USACE go back and issued a
regulation clarifying exactly how far they felt that §404 reached. If they did that, then the
courts would have to give USACE deference.
o Since there were no published regulation or guidelines, the courts did not have to
defer to USACE's case by case analysis.
 In a dissent, it was suggested that the Courts go back to the deference they used in
Riverside, which basically said that waters covered under the act include any waters that
the USACE reasonably concludes may affect the water quality of adjacent lakes rivers
and streams, even when the waters of those bodies are not directly connected to a
navigable waterway.
 Modern Test for USACE § 404 [Filling] Jx Under the Clean Water Act: See
Handout from US EPA & USACE w/ “Summary of Key Points” in a big box.
Exam Question Review – Categories of Dischargers + Requirements + Process + Entities

1) Came in Late – discussing NPDES/Direct Dischargers
Falls under conventional pollutants, but Smelco’s “biodegradable” fertilizer also could
run afoul Total Suspended Solids, Pathogens, Fecal Coliform, etc…
New facility vs. existing facility – Under NPDES program, new facility has much more
stringent controls. No variances available. The facts are somewhat ambiguous – old facility vs
new owner = ?. This is a chance to show that you can analyze it both ways.
Main Discussion: Direct point source discharger of regulated pollutants into navigable
waters of US must have NPDES permit.  Key Aspects of Permit Process: Achieve rate of
reduction of concentration of regulated pollutants to meet the regulatory standards for effluent
limitations in 40 CFR 400. Discuss Monitoring/Reporting Requirements. States issue the
[renewal or new] permits (see beautiful table in the book). Operating w/out a permit = violation
of CWA.
2) Indirect Dischargers: Sewers/POTW/Pretreatment
discuss the three categories: BDT, BCT, BAT; and pretreatment
3) § 319 Generalized runoff is probably not a huge issue on these facts.
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4) § 404 filling permitting required. 3 levels of inquiry: basis for denial, public interest review,
mitigation. Issuing permits triggers opportunity for public comment  NEPA, ESA, citizen
suits, etc…
Resource Conservation and Recovery Act
RCRA (AKA the Clean Land Act)
Generally; Subtitle C; Subtitle D; Underground Storage Tanks
Note:
 Air Pollutants = Clean Air Act – Chapter 6 § 1.1
 Water Pollutants = Clean Water Act – Chapter 7 § D
 Hazardous Waste Land Disposal Management = RCRA
o Largely a groundwater protection problem
Pollution Prevention Act (PPA)

 Three Basic Strategies
1. Treatment, Storage, or Disposal;
a. Primary current strategy, worst long-term strategy, least long-term cost efficient
2. Process Changes to Reduce Waste Stream Volume;
3. Resource Recovery (e.g. Recycling)  often energy intensive
4. 4. Recovery Fuel Value (Incineration)  fallen out of favor b/c of air pollution
 Pollution Prevention Act (PPA) = 1990; 42 USC §§ 13101-13109.
o National Policy
 1) Prevent or Reduce Pollution at the Source Whenever Feasible
 2) Recycle Remaining Pollutants in an Environmentally Sound Manner
 3) Dispose of or Release Pollution into the Environment as a Last Resort
o Created EPA Pollution Prevention Office
 Matching grants to states for pollution source reduction by businesses
 Better data collection and source reduction tracking
 EPA published Pollution Prevention Strategy – 1991
o Spread knowledge on how biz can profit by pollution prevention
o Regulation & Enforcement add more incentive
o Impossible to treat dispersed, nonpoint sources, e.g. waterways
o No significant litigation yet
 Monsanto Co. v. EPA (7th Cir. 1994) – EPA granted biz 2-yr extension to
install water-scrubbers. Times up, they don’t work. EPA denies further
extensions for new scrubbers. Judge says give extension, new extension +
good scrubbers better than “quick fix” that transfers pollutants to
air/ground
Summary of RCRA
 Before RCRA – local, state, federal piecemeal HW control methods
o E.g. public nuisance laws, emergency health measures, toxic torts
 1970s = Congress passed Solid Waste Disposal Act, aka RCRA, 42 §§ 6901-6991i
o Prompted by Love Canal Disaster. GAO: 400k-500k other suspect sites. Damn!
o Note: Hazardous Wastes are a subset of solid wastes. § 1004(5).
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 Subtitle D = Non-HWs
o EPA establishes guidelines for reg of non-H solid waste disposal by the states
o Initially envisioned federal and financial assistance to the states, minimum fed reg
 Subtitle C = HWs
o Perhaps furthest developed paradigm for pollution control
o 1000s of pgs of “Cradle to Grave” regs
 E.g. ID (non-listed) HW characteristics, recordkeeping, reporting, labeling
o Waste Transporters = RCRA + Haz Materials Trasptn Uniform Safety Act
o Special focus TSD = treatment, storage, disposal facilities
o Subtitle C is the floor for state regs
 § 1003(a)(4), (6)
o Encourage the recovery of useful materials through process substitution and
properly conducted recycling and reuse = minimize waste generated + properly
manage HWs
o Often conflicts with 1003(b)
 § 1003(b)
o National policy to reduce or eliminate the generation of HWs as expeditiously as
possible, “wherever feasible,” and manage generated HWs to reduce threat to
health and environment
o Often conflicts with 1003(a)(4), (6)
Summary of EPA’s Regulatory Authority under Subtitle C of RCRA

Source of Nature of Regulatory Authority
Regulatory
Authority
§ 3001  Identify and list hazardous wastes (HWs)
§ 3002  Promulgate standards applicable to HW generators “as may be necessary
to protect human health and the environment”
 § 3002(b)(1) – Require HW generators certify in the required shipment
manifest that they have established a program to reduce the volume or
toxicity of their HW to the extent “economically practicable”
§ 3003  Promulgate standards applicable to HW transporters “as may be
necessary to protect human health and the environment”
§ 3004  Promulgate performance standards applicable to facilities that treat, store,
or dispose of HW (TSD facilities) “as may be necessary to protect human
health and the environment”
 Implement land disposal restrictions (LDRs) on particular HWs
 Issue treatment standards for HWs subject to LDRs
 Require corrective action for releases of HWs or their constituents
§ 3005  Require permits for TSD facilities
o TSDs must annually certify that they have established a program to
reduce the volume or toxicity of their HW to the extent
“economically practicable”
 Issue TSD facility permits
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§ 3006 Authorize states to issue TSD facility permits
§ 3007 Inspect and obtain samples from sources that generate, transport, treat,
store, or dispose of hazardous waste
§ 3008  Pursue civil or criminal enforcement of Subtitle C
RCRA Prima Facie Claim: plaintiff must allege …
 (1) that defendant has generated solid or hazardous waste,
 (2) that defendant is contributing to or has contributed to handling of this waste, and
 (3) that this waste may present imminent and substantial danger to health or environment.
o does not require an existing harm, only an ongoing threat of future harm
 Solid Waste Disposal Act, § 7002, as amended, 42 U.S.C.A. § 6972.
RCRA Remedies: RCRA offers a private citizen a choice of two remedies:
 a mandatory injunction, i.e., one that orders a responsible party to ‘take action’ by
attending to the cleanup and proper disposal of toxic waste, or
 a prohibitory injunction, i.e., one that ‘restrains’ a responsible party from further violating
RCRA
Distinguishing Waste vs Useful Materials: Legitimate vs Sham Recycling

 Waste “reuse” can thwart safe HWs mgmt objectives
 Main Questions:
o Is it a (solid) waste? (not a product, commodity, raw material, or ingredient).
o Is it a HW? = Subtitle C
o Is it a non-HW? = Subtitle D
 Note: Neither Subtitle applies unless the waste qualifies as solid waste. § 1004(5).
 Definition of Solid Waste
o RCRA – § 1004(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 402 of the Federal Water Pollution Control Act,
as amended (86 Stat. 880), or source, special nuclear, or byproduct material as defined by
the Atomic Energy Act of 1954, as amended (68 Stat. 923).
o EPA/CEQ – 40 CFR § 261.2  even more complex, pg. 839
Owen Electric Steel Co. of South Carolina, Inc. v. Browner (4th Cir. 1994) –
 QP: Whether the “slag” produced as a byproduct of steel production is
“discarded,” and therefore constitutes a “solid waste” under 42 USC § 6093(27)
o EPA need only find slag = solid waste under § 1004(27), see above
 Std. of Review = Abuse of Discretion (Arbitrary & Capricious)
 Holding: EPA did not abuse discretion by deeming the 6 month cured slag
discarded; hence, RCRA’s TSDF requirements apply (>90 day curing = storage).
 Slag = limestone & dolomite (magnesium carbonate) + trace metal oxides
o Floats to surface of molten metal, skimmed off, cured outside 6 months
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o Reused as construction aggregate – road base material etc…
 Owen got a TSDF permit that ID’d the slag processing area as solid waste mgmt
unit (SWMU), Owen protests, EPA sticks to guns
 Precedent
o American Mining Cong. V. EPA (D.C. Cir. 1987) (“AMC I”) – Defined
“discarded” = disposed of; abandoned (look to intent)
 rather the a broader definition: no longer useful in original capacity
though destined for immediate reuse in another phase of the
industry’s ongoing production process
  see the updated rule below
 Relied on statutory unambiguous plain meaning + legislative
history + policy of RCRA
 But this case subsequently read narrowly…
o American Petroleum Inst. v. EPA (D.C. Cir. 1990) – held: AMC I does
not mean slag delivered to a new plant for metal reclamation can’t be HW.
 Unlike AMC I, this slag is indisputably “discarded” before
reuse/recycling. Consequently, it has “become part of the waste
disposal problem”  discarded, SW, HW subject to RCRA – C.
o American Mining Cong. v. EPA (D.C. Cir. 1990) (“AMC II”) – held:
EPA OK’d for deciding 3 HWs were in fact discarded, solid wastes; not
exempted b/c stored in surface impoundments and may (uncertain) later be
reused/recycled.
 Surface impoundments are part of wastewater treatment, hence
“part of waste disposal problem” and not part of ongoing industrial
process.
o US v. ILCO, Inc. (11th Cir. 1993) – held: spent batteries from various
sources purchased for recycling purposes were discarded, solid waste.
 Somebody has discarded the battery, doesn’t change just b/c a
reclaimer has purchased or finds value in components.
 RULE – Define Discarded (Solid) Waste: Ask whether the byproduct is (1)
immediately (2) recycled (vs. sham recycled) for (3) valuable use (from class) (4)
in the same industry’s (5) ongoing production process. If not = “part of the waste
disposal problem” i.e. discarded, solid waste.
o Association of Battery Recyclers, Inc. v. EPA (D.C. Cir. 2000) –
Immediate does not mean “at once,” rather Immediate = “direct,” as in
“the immediate cause of the accident”
American Petroleum Institute v. EPA (D.C. Cir. 2000) (“API II”) –

 Oil refiners and chem. mfgers challenge EPA’s classification of petroleum
refining wastewater as discarded, HW, solid waste, under RCRA Subtitle C.
 Wastewater has a little oil left over in it, goes thru 3 stages of treatment, 1st stage
= “primary treatment” = skim oil off the top and return it to refinery processes.
o Req’d by CWA
 QP: Is wastewater “discarded” before/during or after primary treatment?
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o EPA – wastewater treatment is main purpose of the primary treatment, oil
recovery way less important/effective; hence, not recycled under
Discarded, Solid Waste rule above.
 Furthermore, CWA requires them to put wastewater byproduct
thru primary treatment.
o Industry – oil recovery in primary treatment is a part of in-process oil
production. Approximately 1000 barrels/day recovered industry-wide.
 Clean Water Act was passed after we employed primary treatment.
 Reasoning: analogize “discard” w/ legal abandonment and looks to industry’s
intent from specific fact pattern. EPA gets deference, but hard look to make sure
EPA engaged in reasoned decisionmaking. EPA needs to show [from the record]
why compliance w/ CWA predominately motivated the industry rather than the
reclamation-recycling motivation. Then EPA needs to show why this motivation
(intent) implies that the wastewater byproduct is “discarded.”
 Rule: EPA’s “discarded”  Solid Waste  Hazardous Waste  RCRA Sub. C
designation is subject to a Hard Look judicial review under the arbitrary and
capricious standard, limited to the 4-corners of the record.
 Rule: Materials used in sham recycling processes may be deemed discarded.
o See the Product Rule sham recycling definition below
 Holding: EPA failed to provide rational explanation for its decision  arbitrary
and capricious. Remanded for EPA to establish reasoned decision in the record.
Safe Food and Fertilizer v. EPA (D.C. Cir. 2003) – Inter-Industry (Sham) Recycling,
EPA Factors for “Discarded” Designation
 Issue: Are secondary materials generated by 1 industry that are destined for
“recycling” into industry 2 “discarded”?
o Legal challenge from group who thinks the recycled materials make their
food dangerous. (They’re wrong in this case.)
 Court + EPA: In this case, No – based on two factors:
o 1) Market Participants treat the recycled industry 1 byproducts as valuable
product/commodities, not negatively valued wastes. (but see Meyer below)
o 2) The “Identity Principle” – Industry 2’s products (fertilizer) derived
from the industry 1’s byproducts are chemically indistinguishable from
analogous commercial products made from ‘virgin’ materials.
 EPA’s carrot & the stick approach –
o Exempted feedstocks from Subtitle C if they were not speculatively
accumulated and met certain storage, recordkeeping, and notice
requirements (showing use as valued commodities rather than discarded
waste).
o Zinc fertilizers from recycled materials exempt from Sub C if met
maximum contaminant concentration requirements.
 The Product Rule – quick version, 40 CFR § 266.20

o Determines Sham vs. Legitimate Recycling for “recyclable materials used in a
manner constituting disposal”
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o [Beneficial Reuse] – Items produced for the general public’s use “that are used in
a manner that constitutes disposal and that contain recyclable materials” are
exempt from some HW regs “if the recyclable materials have undergone a
chemical reaction in the course of producing the products so as to become
inseparable by physical means” and the products meet EPA’s treatment stds.
US v. Marine Shale Processors (5th Cir. 1996) –
o Define Sham Recycling = HW purportedly recycled contributes in no significant
way to the production of the product allegedly resulting from the recycling.
 Focus on the purpose or function of the HW in the production process.
 HW must not be “merely along for the ride”
 Proposed Regulatory Revisions  pg. 845
o In response to Battery Recyclers above – immediate = “direct,” not “at once”
o Would establish 4 criteria for whether hazardous secondary materials are recycled
legitimately.
 1) Secondary Material to be recycled is managed as valuable commodity
 2) 2ndary provides a useful contribution to the recycling process or to a
product of the recycling process – considering the economics of the
recycling transaction
 3) Recycling process yields valuable product or intermediate that is
 i) sold to a 3rd party or
 ii) used by the recycler or the generator as an effective substitute
for a commercial product or as a useful ingredient in an industrial
process
 4) Product of recycling process
 i) does not contain significant amounts of hazardous constituents
not found in analogous products,
 ii) does not contain significantly elevated levels of any hazardous
constituents not found in analogous products, and
 iii) does not exhibit a hazardous characteristic analogous products
do not exhibit
 CA’s Approach to Defining Waste – Economic Value/Valuable Material Doctrine
Waste Mgmt. of the Desert, Inc. v. Palm Springs Recycling Ctr., Inc. (Cal. 1994) –
o State statute’s repeated references to “solid waste” indicate “the Legislature was
concerned w/ just what it said – waste – and not w/ materials of economic value to
their owner.”
o Discard = throw away or abandon, not dispose of
o Dispose is broader = to transfer or part with, as by giving or selling
o Federal statutes are obviously different
Safe Air for Everyone v. Meyer (9th Cir. 2004) – “the issue of monetary value does not
affect the analysis of whether materials are ‘solid waste’ under RCRA”
• Nonindustrial Solid Wastes (Bullets, Pesticides) – Products meant to be discarded

o Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co. (2d Cir. 1993)
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W/out deciding how long generally, lead shot and clay targets had
accumulated long enough after serving their original, intended purpose but
before being discarded to qualify as solid waste.
o Military Toxics Project v. EPA (D.C. Cir. 1998) –
 Ct defers to EPA determination that military bullets hit ground, stay there
= not SW. EPA says not discarded b/c used for their intended purpose.
o No Spray Coalition, Inc. v. City of New York (2d Cir. 2001) –
 City pesticide, anti-West Nile mosquito, campaign OK’d as not discarded.
o Safe Air for Everyone v. Meyer (9th Cir. 2004) –
 SJ in favor of farmers who burn crop stem stubble and debris after harvest.
 Beneficial reuse terminology
 Worry was smoke on air quality
Identification and Listing of Hazardous Wastes

• Listing a material as HW under Sub-C = final agency action
• Statutory Definition of Hazardous Waste = a solid waste that, because of its quantity,
concentration, or characteristics, may cause or significantly contribute to an increase in
mortality or serious illness or pose a substantial hazard to human health or the
environment when improperly managed. 40 CFR § 1004(5).
• § 3001(a) – EPA required to issue criteria for ID’ing HW and for listing HWs
o Factors = (not exclusive) toxicity, persistence, degradability in nature, potential
for accumulation in tissue, flammability, and corrosiveness.
• § 3001(b)(1) – EPA then must issue regs actually ID’ing the characteristics of HW and
list particular HW under subtitle C.
o Exceptions to Subtitle C under 40 CFR § 261.4(b) – household waste,
growing/harvesting crops or raising animal waste, mining overburdened returned
to the mine site, and exploration or production of crude oil/natural gas/geothermal
wastes. See also RCRA §§ 3001(b)(2)-(3).
• 5 Ways Solid Waste May Qualify as HW:
o 1) SW = HW if specifically listed as such by EPA. 40 CFR § 261.3(a)(2)(ii)
 EPA publishes the list for industry to check. 40 CFR § 262.11(b)
 States may use more expansive definitions than RCRA – 42 USC § 6929
o 2) SW = HW if meets any of the 4 HW characteristics: ignitibility, corrosivity,
reactivity, or toxicity. §§ 262.11(b), 261.3(a)(2)(i), 261.20
 Generators of SW must determine if their SW = HW, even if EPA doesn’t
list it by testing the characteristics of their SW using EPA-approved
methods or “applying knowledge of the waste in light of the materials or
the processes used.” Id., § 262.11(c)(2).
 Ignitability: Low flash point for burning; friction may cause fires
 Corrosivity: Low pH; especially if corrosive of steel – container issues
 Reactivity: Reacts violently with water or water vapor
 Toxicity: TCLP – leaching into groundwater concerns.
o 3) Mixture of listed HW and another SW = HW unless EPA specifically
excluded it. Id., § 261.3(a)(2)(iv).
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o 4) Mixture of waste that is hazardous b/c of its characteristics and a
nonhazardous SW = HW if the resulting mixture exhibits any of the
characteristics of HW. Id., § 261.3(a)(2)(iii).
o 5) The “Derived From Rule” provides (with certain exceptions) any SW
generated from the TSD of a HW = HW. Id., § 261.3(c)(2)(i).
 The Derived From Rule was meant to prevent HW generators and owners
of TSD facilities from evading rags by “minimally processing or
managing a HW and claiming that resulting residue was no longer the
listed waste, despite the continued hazards that could be posed by the
residue even though it does not exhibit a [HW] characteristic.” 60 Fed.
Reg. 66,344, 66,346 (1995).
• Listing and Delisting of HWs
o Listing (method 1 above) is most common RCRA control b/c testing by
generators themselves for characteristics (e.g. carcinogenicity, mutagenicity, and
teratogenicity) is expensive, impractical, untrustworthy.
o EPA focuses on constituents of HW streams
 EPA has listed HW streams, typical waste sources, and HW-generating
processes in addition to hundreds of specific hazardous substances.
 See 40 CFR Pat 261, Appendices VII-VIII; §§ 261.31-261.33, 261.35
Dithiocarbamate Task Force v. EPA (D.C. Cir. 1996) –
 Ct invalidated series of listings b/c EPA failed to consider all the regulatory factors in
determining whether waste w/ toxic constituents is capable of posing a substantial threat
to human health or environment when improperly managed.
Environmental Def. Fund v. EPA (D.C. Cir. 2000) – contra to above?
 Ct upheld EPA not listing 14 solvents as HW, rejected argument that EPA need to
examine not only toxicity of the spent solvents, but also toxicity of spent solvents + other
constituents that might mix to form larger waste stream.
 § 261.11(a)(3) – requires EPA to list a waste as hazardous if it contains any of the toxic
constituents listed in an appendix to the regs and if, based on consideration of designated
factors, the waste is capable of posing a substantial present or potential hazard to human
health or the environment when improperly managed.
o American Petroleum Inst. v. EPA (D.C. Cir. 2000) – API challenged EPA listing
of refinery residuals. Listing upheld: EPA properly took position that it would
regulate a waste posing substantial risk to highly exposed individuals, even if
relatively small risk to population at large.
 § 3001(f) – waste generators may petition to EPA to delist wastes. Petitioner must
demonstrate that a specific waste generated by an individual facility is not hazardous b/c
of plant-specific variations in raw materials, processes, or other factors.
Characteristics of Hazardous Wastes

 4 HW characteristics: ignitibility, corrosivity, reactivity, or toxicity.
o §§ 262.11(b), 261.3(a)(2)(i), 261.20
 Toxicity is most difficult to apply.
o 1st testing method: Extraction Procedure (“EP”) leach test.
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 Measured potential for toxic constituents to leach out and contaminate
groundwater at levels creating health or enviro concerns under conditions
of improper mgmt.
 45 Fed. Reg. 33,110 (1980).
o 2nd Test: 1990 = Toxicity Characteristic Leaching Procedure Test (“TCLP”)
 same concern as before, this test also requires the use of limited number of
leaching fluids and eliminates an exception to testing requirement that
large, solid pieces of waste be reduced to particles before testing.
 Edison Elec. Inst. v. EPA (D.C. Cir. 1993)
 Also added 25 organic chemicals to list of toxic constituents of concern.
 Good description of test: Association of Battery Recyclers, Inc. v. EPA
(D.C. Cir. 2000)
 Mixture and “Derived From” Rules –
o The Mixture Rule – any solid waste mixed w/ a listed HW = a HW  subject to
RCRA Sub C.
o “Derived From” Rule – waste derived from the treatment, storage, or disposal of
a listed HW = a HW  subject to RCRA Subtitle C.
o Shell Oil Co. v. EPA (D.C. Cir. 1991) – Court vacated both Mixture and Derived
From rules on procedural grounds. They had been in use 12+ years.
o EPA Response – reissued both rules in 2001. 66 Fed. Reg. 27,266.
 Exceptions from RCRA Subtitle C Regs:
 1) Derivatives of wastes listed solely for the characteristics of
ignitability, reactivity, and/or corrosivity (i.e. not toxicity) when
they no longer exhibit any characteristic of HW.
 2) Mixtures of wastes listed solely for the characteristics of
ignitability, reactivity, and/or corrosivity (i.e. not toxicity) when
they no longer exhibit any characteristic of HW.
 Exception to Exception – wastes that exhibit a HW characteristic at
generation point and then subsequently de-characterized remain subject to
land disposal restrictions.
o American Chemistry Council v. EPA (D.C. Cir. 2003) – 2001 version of the
rules upheld. Reasonable for EPA to assume mixtures/derivatives of HW are HW
until can be shown otherwise. Burden to show safety = on regulated entity.
Note on Municipal Waste Combustion Ash – (this is not coal ash, just illustrative)
 Many local gov’ts burn solid waste, some in Waste-To-Energy (“WTE”) facilities
 Fly Ash/Bottom Ash = ~25% of dry weight remains after burning the SW. ~ 8 million
tons of Municipal Waste Combustor (“MWC”) ash annually.
o Bottom Ash = 75-80% of total ash weight; collects at bottom of combustion unit.
o Fly Ash = 20-25% by weight; collects in [the several] air pollution controls
o ~80% of WTE facilities routinely combine the 2 ashes together
 MWC Ash: Subtitle C vs. Subtitle D
o 1980: EPA had to choose how to regulate MWC ash from WTE facilities
o EPA exempted “household waste” from regs (e.g. cleaning fluids, batteries)
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o EPA exempted from subtitle C: “residues” remaining after treatment/incineration
of household wastes
 WTE burning only household waste could dump MWC ash in Subtitle D
landfill.
 However, even non-Hazardous industrial waste + household waste
deemed HW if incinerated together.
o 1984: Congress = § 3001(i) of RCRA = “Clarification of Household Waste
Exclusion”
o City of Chicago v. EDF (1994) – did EPA correctly interpret § 3001(i) to
continue to exempt MWC ash from HW definition? Ct used ‘plain meaning’
interpretation and overruled EPA.
 “So long as a facility recovers energy by incineration of the appropriate
wastes, [the facility itself] is not subject to Subtitle C [HW] TSDF regs”
 Plain language exemption for Household “Waste Stream” facilities
 See language below from online
 The facility is NOT exempted from Sub C regs as a HW generator.
 Plain language refers to T + S + D + “otherwise managing,” =
everything except generation is excepted!
 However, the ash byproduct, if toxic, is HW. Must use Subtitle C landfills.
 Rule: Ash not categorically HW, must test for HW characteristics.
 Chicago chose to close its municipal garbage incinerators rather than
retrofit w/ enviro controls.
o EPA then announced it would consider the ash to be HW at the point it exits the
combustion building following combustion & air pollution control processes.
 Trigger  that’s when facility must do toxicity characteristic testing
 see 60 Fed. Reg. 6666 (1995)
o Combined WTE combustion ash still routinely passes the TCLP (toxicity) test.
o http://www.law.cornell.edu/supct/search/display.html?
terms=energy&url=/supct/html/92-1639.ZS.html
 Respondent Environmental Defense Fund (EDF) sued petitioners, the city of Chicago and
its Mayor, alleging that they were violating the Resource Conservation and Recovery Act
of 1976 (RCRA) and implementing regulations of the Environmental Protection Agency
(EPA) by using landfills not licensed to accept hazardous wastes as disposal sites for the
toxic municipal waste combustion (MWC) ash that is left as a residue when the city's
resource recovery incinerator burns household waste and nonhazardous industrial waste
to produce energy. Although it was uncontested that, with respect to the ash, petitioners
had not adhered to any of the RCRA Subtitle C requirements addressing hazardous
wastes, the District Court granted them summary judgment on the ground that §3001(i) of
the Solid Waste Disposal Act, a provision within RCRA, excluded the ash from those
requirements. The Court of Appeals disagreed and reversed, but, while certiorari was
pending in this Court, the EPA issued a memorandum directing its personnel, in
accordance with the agency's view of §3001(i), to treat MWC ash as exempt from
Subtitle C regulation. On remand following this Court's vacation of the judgment, the
Court of Appeals reinstated its previous opinion, holding that, because the statute's plain
language is dispositive, the EPA memorandum did not affect its analysis.
 Held: Section 3001(i) does not exempt the MWC ash generated by petitioners' facility
from Subtitle C regulation as hazardous waste. Although a pre-§3001(i) EPA regulation
provided a "waste stream" exemption covering household waste from generation through
treatment to final disposal of residues, petitioners' facility would not have come within
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that exemption because it burned something in addition to household waste; the facility
would have been considered a Subtitle C hazardous waste generator, but not a
(more stringently regulated) Subtitle C hazardous waste treatment, storage, and
disposal facility, since all the waste it took in was nonhazardous. Section 3001(i)
cannot be interpreted as extending the pre-existing waste stream exemption to the product
of a combined household/nonhazardous industrial treatment facility such as petitioners'.
Although the section is entitled "Clarification of household waste exclusion," its plain
language--"A resource recovery facility . . . shall not be deemed to be treating, storing,
disposing of, or otherwise managing hazardous wastes for the purposes of [Subtitle C]
regulation . . . if . . . such facility . . . receives and burns only . . . household waste . . . and
[nonhazardous industrial] waste . . ."--establishes that its exemption is limited to the
facility itself, not the ash that the facility generates. The statutory text's prominent
omission of any reference to generation, not the single reference thereto in the legislative
history, is the authoritative expression of the law. The enacted text requires rejection of
the Government's plea for deference to the EPA's interpretation, which goes beyond the
scope of whatever ambiguity §3001(1) contains. Pp. 3-10.
Note on Contingent Management – see pg. 853.
Regulation of Hazardous Waste Generation and Transportation –

 HW Generation under RCRA
o SW generators are responsible for determining whether its wastes are HWs. §
262.11.
o HW Shipment Manifest – If generator contracts to have its HWs moved off site
for treatment or disposal, generator must originate for each waste shipment a
detailed paper manifest, select responsible transporters, specify a fully permitted
TSD facility for the delivery, and report irregularities if receipt is not confirmed.
 Also, packaging, labeling, and placarding requirements
o On-Site, Temporary Storage of HW – Generally, 90 days or less on-site or must
get a TSD facility permit. § 3002; 40 CFR § 262.
 Small Quantity HW Generators – some are subject to less onerous
requirements.
 HW Exports
o See pg. 854. International dumping laws/treaties. US is a signatory to the
Convention but has not ratified it due to the absence of implementing legislation.
US continues to export HWs under the “environmentally sound mgmt” exception.
 HW Transportation under RCRA and HMTUSA
o Subtitle C & Hazardous Materials Transportation and Uniform Safety Act
o § 3003 aimed at “midnight dumping” by “gypsy haulers”
 recordkeeping and labeling regulations
 must participate in the shipment manifest system
 RCRA Subtitle C § 3003 must be implemented consistently w/ HMTUSA
o HMTUSA purpose = “to provide adequate protection against the risks to life and
property inherent in the transportation of haz- material in commerce.” § 5101.
 § 5103(a) – Sec. of Transportation may designate materials as hazardous if
their transportation may pose an unreasonable risk to health and safety or
property
 Sec. can then regulate for safe transport of those materials
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 DOT Regs = 49 CFR §§ 172-173, 178-179.
 § 5103(g) – Director of the Transportation Security Administration (TSA)
must develop and implement a process for carrying out background checks
for drivers hauling hazardous materials.
 § 5109(a) – Motor carriers may transport hazardous materials in
commerce only if they have a safety permit: safety rules + financial
responsibility requirements.
 § 5112(b) – Sec. must issue stds for states to implement highway routing
reqs for enhanced public safety.
 § 5125(a) – Federal HMTUSA preempts state and local reqs if compliance
w/ both is impossible or if state compliance is an obstacle to federal
compliance.
 § 5125(b)(1) – some local, state laws preempted (packaging, containers for
hazardous material) if “not substantively the same” as HMTUSA’s.
 § 5125(c) – state hazardous highway routes must be in accordance w/
HMTUSA
 § 5125(e) – Sec. may waive preemptive effect if state/local req is at least
as protective as HMTUSA and does not unreasonably burden interstate
commerce.
Regulation of Hazardous Waste Treatment, Storage, and Disposal (TSD) –

 1) TSD Facility Permits and Performance Standards
o Most complicated provisions of RCRA
o 2003: 367 commercial HW facilities in North America, most were waste and
wastewater recycling operations
o § 3005(a) = TSD of HW and construction of TSD HW facility require permits.
 § 3006 = EPA may authorize state to administer TSD facility permit
program
 Permits only issued if §§ 3004 [regs “necessary to protect human health
and the environment”] and 3005(c)(1) being followed
 EPA can revoke permit if noncompliance - § 3005(d)
o Examples of regulations:
 location, design, and construction stds;
 performance stds for groundwater protection + monitoring reqs +, if
necessary, corrective action;
 Liner systems designed to prevent adjacent soil/groundwater
contamination for generally 30 years. Possibly require groundwater
monitoring § 3004(p).
 Facility Closure – 40 CFR § 264.119
o Grandfather Clause/“Interim Status” Facilities – owner/operator of TSD facility
1) on effective date of statutory or regulatory changes that put it under subtitle C,
2) who notifies EPA of its operations, 3) and applies for permit = EPA treats as if
the facility already had a permit until EPA rules on the application. § 3005(e)(1).
o “Standardized Permits” for Generator On-Site Storage of HW
 Authorized by EPA in 2005 to streamline process
 TSDFs that generate and store or non-thermally treat HW on-site.
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 Or receive HW generated off-site by a generator under same
ownership as receiver facility (that stores or non-thermally treats)
 Eligible facilities = ~ 50% of the 11 major types of HW mgmt units.
 Permit Structure = 1) Uniform Portion, required in all cases + 2)
Supplemental Portion required at discretion of EPA or authorized state. 70
Fed. Reg. 53,420 (2005).
 2) Land Disposal Restrictions and Treatment Requirements
o EPA too slow, so Congress adopted Hazardous and Solid Waste Amendments of
1984 (HSWA)
o See pg. 857, but basically a lot of land dumping going on and expensive
corrective action needed. HSWA expanded RCRA objectives, see § 1003(a)(4)-
(6).
o Copied Clean Air & Clean Water Acts technology-forcing approach
 E.g. liner and leachate collection system specifications. § 3004(o)(5)(B) &
§ 3004(o)(1).
o HSWA’s major effects on RCRA = Land Disposal Restrictions (LDRs)
 Land Ban: In effect, HSWA imposes ban on land disposal of untreated
HW; there is a ban on disposing HW on land to the extent that one cannot
scientifically or technically design a landfill that would indefinitely protect
human health & the environment from the HW within.
 § 3004(b)(1) = bans placement of non-containerized or bulk liquid HW in
salt dome formations, salt bed formations, underground mines, and caves
until EPA finds would be protective of health and enviro and issues
performance and permitting stds.
 § 3004(c)(1) = also bans placement of same stuff in landfills.
 Land Disposal = includes landfills, surface impoundments, and injection
wells. § 3004(k).
 LDRs on certain dioxin-containing wastes and halogenated and
nonhalogenated solvents.
 EPA may lift the ban by issuing finding that specific land disposal ban “is
not required in order to protect human health and the environment for as
long as the waste remains hazardous;”
 Must take into account long-term uncertainties associated w/ land
disposal, the goal of managing HW in appropriate manner in the 1st
instance, and the persistence, toxicity, mobility, and
bioaccumulation propensity of the wastes and their hazardous
constituents.
 Heightened std for untreated HWs: EPA must determine “to a
reasonable degree of certainty, that there will be no migration of
hazardous constituents for as long as the waste remains
hazardous.” § 3004(e)(1).
 § 3004(d)(1) = similar LDRs for liquid HWs containing free cyanides,
metals above specified concentrations, PCBs, and halogenated organic
compounds.
o Deep Injection Well LDRs – pg. 857 bottom. Time for study until 1998, then
defaults to basically same as the other LDRs
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o NRDC v. EPA (D.C. Cir. 1990) – Scope of LDRs
 Here HW Deep Injection Disposal
 Held: EPA may ban any method of land disposal of wastes governed by §
3004(g) w/out first determining the method is not protective of human
health and the environment. RCRA commands EPA to impose LDRs on
HW unless affirmative determination of safety is made.
 Upheld: EPA determination that hazardous constituents (defined by
molecular structure, not sample concentration) could migrate out of
storage/disposal area/unit/container w/out violating the no-migration std.
 Whereas a hazardous waste (defined by a variety of factors,
including concentration of hazardous constituents) escaping would
violate the no-migration rule.
 Upheld: deferred to EPA determination that “as long as the wastes remain
hazardous” refers only to the wastes that actually are escaping.
 So if escaping wastes are safe, but waste in middle of container
still hazardous = no violation of no-migration rule.
o § 3004(j) – Prohibits storage of HWs subject to LDRs unless solely for the
purpose of accumulating quantities of the waste necessary to facilitate proper
recovery, treatment, or disposal.
 Edison Elec. Inst. v. EPA (D.C. Cir. 1993) – Rule: storage of HW
pending [technological or tech-application] development of treatment
capacity is not exempt for prohibition of storage of HWs subject to LDRs.
 Loopholes and Caveats to LDRs
o § 3004(h) of RCRA authorizes EPA to defer effective date of LDRs of § 3004(d)-
(g).
o EPA required to issue treatment stds simultaneously w/ the issuance of regs to
implement the LDRs.
 Must specify “those levels or methods of treatment, if any, which
substantially diminish the toxicity of the waste or substantially reduce the
likelihood of migration of hazardous constituents from the waste so that
short-term and long-term threats to human health and the environment are
minimized. § 3004(m)(1).
 Then “treated” (as def above) HW no longer subject to LDRs. § 3004(m)
(2).
Columbia Falls Aluminum Co. v. EPA (D.C. Cir. 1998) –Discussion of TCLP [EPA’s
Toxicity Test]; LDRs must be simultaneous w/ Treatment Stds.
 Small mfg of aluminum challenged EPA regs under § 3004 of RCRA establishing
a treatment std for “spent potliner” and prohibited LD of untreated spent potliner.
o Spent Potliner = byproduct of primary aluminum reduction
o Treatment std didn’t choose a specific technology, but EPA knew only
Reynolds Metals Company was treating spent potliner.
o Treatment std expressed in terms of numerical concentration limits for
hazardous constituents in the waste
 The stds for cyanide and PAHs were based on a “total composition
concentration analysis” (“TCCA”)
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 Stds for Fluoride and hazard-metals expressed in terms of the
TCLP (EPA-approved toxicity test).
 Turns out TCLP was giving really inaccurate modeling for the actual
concentrations leaching out of the disposal area.
o Problem was TCLP assumes “generic mis-mgmt scenario” where HW put
into municipal solid waste landfill. But here, no other wastes acting as
buffer agents – spent potliner put into a monofill and high pH resulted.
 Aluminum Mfgs claimed it was arbitrary and capricious for EPA to continue
using TCLP to measure compliance w/ the treatment std once it knew the test
didn’t accurately predict the mobility of toxic constituents in the actual leachate.
 HELD:
o 1) EPA’s use of the TCLP is arbitrary and capricious.
o 2) Vacate treatment standard itself b/c it’s only expressed in terms of
TCLP.
o 3) Must also vacate prohibition on land disposal b/c Congress intended
treatment standards and LDRs to operate in tandem.
 Statutory: § 3004(m), 42 USC § 6924(m)(1) LDR
“simultaneously” w/ treatment stds. § 6924(m)(2) treatment regs
“become effective on the same date” as any LD prohibition.
 Pragmatic Considerations: § 3004(j) prohibition on untreated
LDR’ed-HW storage + prohibition on LD + lack of treatment
standards = could shut down entire industries.
o 4) EPA may make an interim treatment std w/ file a motion in this court to
delay this ruling in order to allow reasonable time to develop interim std.
 Rules for Scientific Models Underlying Treatment Standards:
o American Iron & Steel Inst. v. EPA (D.C. Cir. 1997) – An agency’s use of
a [math] model is arbitrary if that model “bears no rational relationship to
the reality it purports to represent.”
o Chemical Mfrs. Ass’n v. EPA (D.C. Cir. 1994) – Models need not fit every
application perfectly, nor need an agency “justify the model on an ad hoc
basis for every chemical to which the model is applied.”
o Eagle-Picher Indus., Inc. v. EPA (D.C. Cir. 1985) – If, however, “the
model is challenged, the agency must provide a full analytical defense.”
o Small Refiner Lead Phase-Down Task Force v. EPA (D.C. Cir. 1983) –
EPA’s “duty to examine key assumptions as part of its affirmative burden
of promulgating and explaining a non-arbitrary, non-capricious rule.”
 Risk-Based vs Technology-Based Treatment Standards
o Hazardous Waste Treatment Council v. EPA (D.C. Cir. 1989) – held: § 3004(m)
authorizes EPA to base treatment stds on either risk-based screening levels or best
demonstrated available technology, as long as the effect is to minimize short-term
and long-term threats to health and the environment  EPA must explain choice.
 Land Treatment – putting HW on the ground w/ the expectation that the hazardous
constituents will become less hazardous over time.
o American Petroleum Inst. v. EPA (D.C. Cir. 1990) – held RCRA bards EPA from
authorizing land treatment of petroleum refining HWs under § 3004(m).
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 EPA used § 3004(k) to conclude land treatment = type of land disposal
 Follows that treatment occurs after the HW as been land disposed
 RCRA requires HWs be treated before land disposal.
o Louisiana Envtl. Action Network v. EPA (D.C. Cir. 1999) – upheld EPA regs
allowing variances under § 3004(m) from treatment stds if treatment would likely
discourage aggressive remediation.
 EPA worried applying overly stringent treatment reqs to waste already in a
landfill could discourage excavation and prevent any treatment at all.
 Ct said API case above held that, b/c LD pursuant to § 3004(m)(2) is
dependent on compliance w/ § 3004(m)(1) treatment reqs, LD itself
cannot constitute the “treatment” req’d by § 3004(m)(1).
 API “says nothing,” however, about whether EPA may look
beyond the pre-disposal context in measuring whether treatment
will substantially diminish toxicity or substantially reduce
likelihood of migration.
 Treatment of Characteristic Hazardous Wastes –
o Chemical Waste Mgmt. v. EPA (D.C. Cir. 1992) –
 Industry argued EPA lacked authority to mandate treatment of waste
beyond point where they cease to display hazard-characteristics
 Claimed cease to meet reg def of HW = cease subject to Sub C.
 Held: EPA may bar LD of certain wastes unless they have been treated to
reduce risks beyond those present by the characteristics themselves.
 Enviro Groups challenged EPA’s endorsement of dilution as acceptable
method of treatment.  specifically doesn’t reduce waste toxicity
 Held: RCRA does not require use of best demonstrated available treatment
technology in all situations and that, in principal, dilution can constitute
acceptable form of treatment for ignitable, corrosive, or reactive
characteristic HWs.
 Held: Dilution is appropriate only if it removes the [1 of 4 regulated]
characteristic(s) and reduces hazardous constituents that are present in
sufficient concentrations to pose a threat to human health or enviro.
o RCRA 1996 Amendment – allow SW ID’d as HW solely on basis of its
characteristics to escape RCRA treatment reqs if disposed of at facilities regulated
under Clean Water Act or Safe Drinking Water Act, provided waste no longer
exhibits a hazardous characteristic at the time of disposal.
 EPA keeps authority to impose treatment stds or additional reqs on these
wastes if necessary to protect health and the enviro. § 3004(g)(7)-(11)
Note on Siting TSDFs and Environmental Justice

 Until 70s, Site of TSDFs regulated, if at all, by local zoning law. See 42 USC § 7431.
o Local authorities can address violations w/ traditional theory of public nuisance.
o Zoning can add conditions e.g. fences, transit routes, buffer to residential, etc…
 Originally welcomed for jobs/taxes, but after Love Canal incident, NIMBY and LULU
(locally undesirable land uses).
 Opposition cuts across geographical, political, and social class lines.
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 Fed gov’t has relied on state Siting powers subject to minimal EPA oversight.
 § 3004(o)(7) of RCRA requires EPA promulgate criteria for acceptable TSD location
“necessary to protect human health and the environment,” and
 § 104(c)(3) of CERCLA reqs that by 1989 each state provide EPA w/ assurances that it
has adequate TSD capacity to handle all HWs expected to be generated in the state for the
next 20 years.
o Often states must bribe, threaten, or strong-arm localities w/ LULU/NIMBY
views b/c of this capacity requirement.
o TSD and radioactive waste Siting still has an incredibly high failure rate
 Poor and Minority Neighborhoods often get shit-end of the stick
o 1987 study by United Church of Christ Commission on Racial Justice = race most
significant variable in HW facility location.
o Environmental Justice Racism link is disputed (I assume by racists and capitalists)
 1st Generation of Enviro Justice Lawsuits alleged intentional discrimination and failed
 2nd “ . . . “ used Title VI of the Civil Rights Act of 1964
o prohibits discrimination in the distribution of federal or federally financed
benefits, including regulatory decisions.
o Prez Clinton’s 1994 Executive Order and EPA’s Interim Guidance [blah blah]
allow plaintiffs to infer a disparate impact from permits that result in a net
increase in pollution.
 South Camden Citizens in Action v. NJ Dept of Enviro Protection (3rd Cir. 2001) –
o Issue: Is the presence of disparate impact arising from the location of a TSD or
other adverse enviro impact facility sufficient to maintain a private right of action
for a violation of the Civil Rights Act?
o Held: An administrative regulation cannot create an interest enforceable under §
1983 unless the interest already is implicit in the statute authorizing the reg, and
that inasmuch as Title VI proscribes only intentional discrimination, the Ps do not
have a right enforceable through a 1983 action under the EPA’s disparate impact
discrimination regulations.
Pg. 872-3
Regulation of Nonhazardous Solid Waste (=Subtitle D; here, book refers to RCRA == Sub C)
 RCRA is part of the Solid Waste Disposal Act (SWDA) of 1976
 Applies also to nonhazardous municipal solid waste (non-HSW) under Subtitle D
 § 1002(b) – congressional general findings on the problem of non-HSW disposal issues
 § 1003(a) – Objectives of SWDA (Subtitle D of RCRA)
o technical and financial assistance to state/local gov’ts to develop solid waste
mgmt plans,
o prohibiting future open dumping; requiring upgrades of existing open dumps,
o provide guidelines for SW mgmt practices, and
o establish cooperative effort in all levels of gov’t and private enterprise to recover
valuable materials & energy from SW.
 State & Local Gov’t Retains most power (unlike RCRA Sub C); Feds provide info & $
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 § 1008(a) – EPA must 1) adopt guidelines for non-HSW mgmt that 2) describe attainable
levels of performance and 3) provide min criteria for use by states in defining practices
that constitute the open dumping of SW.
o see § 4004(a) – EPA must distinguish open dumps vs sanitary landfills.
o § 4002(b) – EPA must publish guidelines to aid states in developing/implement
SW mgmt plans. 40 CFR § 256.
 State Non-HSW Mgmt Plans
o Must submit to be approved by EPA. § 4007(a) = EPA must approve if …
 the plan meets § 4003 reqs (see below) and
 provides for plan revisions after notice + public hearings
o If plan approved, state is eligible for Fed assistance. § 4007(b).
o Must at least prohibit new open dumps and require all SW be used for resource
recovery or be disposed in sanitary landfills. – § 4003(a)(2)
o Must provide for closing or upgrading of open dumps and, more generally, for
whatever combination of resource conservation or recovery and SW disposal
practices is necessary for sound waste mgmt. § 4003(a)(3), (6).
o Define Open Dump = solid waste disposal facility that is neither a sanitary landfill
or TSDF. § 1004(14).
o Define Sanitary Landfill = Complies w/ EPA design and performance criteria
under § 4004. § 1004(26).
o Enforcement = Citizen suits to enjoin open dumping, not EPA. § 4005(a).
 See e.g. Parker v. Scrap Metal Processors Inc., (11th Cir. 2004) –
 Found violation of prohibition on open dumping.
 Statistics Note – Recycling (see bottled containers) is not going well at all. 1/3rdish.
40 CFR § 258 – Protection of Environment: Criteria for Municipal Solid Waste Landfills
 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?
c=ecfr&sid=4c59c4934238ee7253e7e97b3460128b&rgn=div5&view=text&node=40:24.
0.1.4.38&idno=40
SDSS, Inc. v. South Dakota (8th Cir. 1995) –

 Issue: § 1983 suit; Does the (negative) referendum of a measure permitting SDSS to
operate a large-scale municipal SW disposal (MSWDF) in South Dakota violate the
dormant commerce clause?
o SD environmentalists & citizens trying to stop plan to import garbage and get $.
o Passed a law by initiative requiring legislature to approve this project (in addition
to regulatory agency process), then send to voters for up/down referenda.
 The permitting process has been thru quite a doozey out of & in court.
 Held: Yes – the referendum was the latest in a serious of protectionist roadblocks in SD.
o “Garbage Market” is part of the economy/commerce.
 Dormant CC = legal doctrine that courts in the United States have inferred from the Commerce Clause
in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power
to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that
this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation
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that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and
applies even in the absence of a conflicting federal statute.
 Std. of Review: Strict Scrutiny = compelling state interest + narrowly tailored means
 Protectionist purpose and effect
o While coached in generalized language, it turns out the law requiring the
referenda only applied to this 1 MSWDF.
o SD Atty General’s voter pamphlet during the referenda had Pro/Con page, Con’s
were all coached in protectionist (& not scientifically informative) language
o Some attempts to sound like an economist – talking about efficient disposal &
negative value blah blah SD harming interstate economy
o Also the double approval process (administrative + legislative) did not further the
goal of better protecting the enviro/health
 Larger MSWDFs are more efficient at protecting the enviro
 SD doesn’t generate enough waste for the larger landfills
Practice Exam Question:  Note, each statute really gets its OWN PARAGRAPH.
EXAM IS CLOSED BOOK = THIS IS PROBABLY THE EXAM QUESTION EXACTLY.
1) Is there a RCRA issue? Yes.
2) How can you tell RCRA is triggered? (Is it solid waste? HW?)
a. Mentions HW… Ez peazy. Also need to discuss – Carl appears to be a TSDF b/c
of storage. RCRA also regulates the HW Generation = SMELCO and Transporter
= may be unID’d, but waste is getting from SMELCO to Carl. SMELCO has to
characterize the waste as HW, need to discuss creating manifest and receiving it
back, talk about requiring to only send HW to permitted disposal facility.
3) What if Old Carl is right? What if he has really figured out a way to change HW into
water?
a. He’s a TSDF b/c he’s treating the waste. We don’t really care if you are doing
something fabulous w/ the HW, you are still treating the HW.
4) What are some of the requirements that Carl should be complying with?
a. This is just an opportunity to list every TSDF requirement b/c he’s not doing
anything.
b. Needs a permit (he’s hiding it from gov’t/public) = 2 part process; Part A = basic
ID info; Part B = comprehensive, legally binding doc detailing all the req of
RCRA in a public process.
c. Create and send back the manifest. BDAT/BAT or whatever applies.
Groundwater monitoring system. Corrective action, closure, post-closure plans.
d. ETC…
5) He probably won’t tell us if the waste is HW vs. non-HW
a. Need to discuss HW listing and HW characteristics
b. Need to discuss subtitle D reqs. But if he’s taking in non-HW garbage and
experimenting w/in his warehouse (therefore open dumping, not operating an
incinerator), then he’s an unregulated garbage playground.
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Comprehensive Environmental Response, Compensation, and Liability Act

CERCLA (AKA Superfund or SARA)
Generally; Liability and Defenses; Cleanup Standards; Cost Recovery and Contribution
Lecture
 Enacted in 1980 by Carter administration.
o One of few Democrat signatures on an enviro law.
 RCRA looks forwards
 CERCLA looks backwards.
o What are we going to do to remediate dangerous pre-RCRA sites?
 Surface, subsurface, groundwater, surface water, sediment, air releases
o Other purposes as well, but that is the basic problem.
o Can cover contemporary & future non-waste, hazardous substance releases w/
substantial and imminent danger to human health.
 CERCLA passed w/ haste b/c Reagan incoming & probably then wouldn’t happen at all
o So anti-gov’t regs it’s ridiculous – Specifically targeting enviro laws.
o The law that was passed was a total mess.
o Courts described CERCLA: inartful, ambiguous, riddled w/ inconsistencies,
redundant.
o Regan employees tried to kill it from w/in as well.
 A single extremely successful feature – Superfund
o Deal w/ petrochemical industry = instead of including petroleum contaminated
sites reg’d under CERCLA, create a small incremental tax on every use of
petroleum in our economy.
o The tax dumps directly into USEPA’s CERCLA fund.
o Peaked at $7 billion or so. Wildly exceeded expectations.
o Petroleum sites/spills still not regulated under CERCLA
 1986 CERCLA Substantially Amended = Superfund Amendments
o Superfund Amendment Reauthorization Act = SARA
o Signed by Reagan
o National Contingency Plan – see handout
 Describes sequence of steps for gov’t response from ID of a historically
contaminated site to its ultimate cleanup.
 Focus of much of the rest of this topic.
How do you know CERCLA is triggered?

1) A release
2) Of a hazardous substance
3) From a facility or vessel
4) Into the environment
 A release
o Broad regulatory definition; not going to be the tricky part of the question
 Hazardous substance
o NOTE: NOT HW, broader.
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o If it’s included under any listing under any federal statute: CWA, CAA, RCRA,
etc…
o Additionally, any substance that may pose a substantial danger in the estimation
of the head of the EPA may be specifically listed. (2000+ to date).
o Petroleum exclusion still applies though.
 From a Facility or vessel
o Any place hazardous substances are stored, … disposed of, or located
 Into the Environment
o Surface, subsurface, surface water, groundwater, drinking water, air
Criticism of CERCLA
 Too broad, stigmatizes sites that aren’t actually dangerous, loses focus on most dangerous
sites.
National Contingency Plan

 See extensive notes on handout for step-by-step description from ID site to remediation.
 3 other HRS and NPL 1 page handouts.
Lecture
 Justifications for current liability scheme
o Old (for orphan sites) = petroleum tax
o Now = Polluter Pays, PRPs
 True Orphan site on Nat’l Priorities List = USEPA (i.e. the taxpayer)
 Who is a PRP?
o Transporters (to the extend the transporter made discretionary disposal location
decisions), Arrangers (= RCRA Generators), present/past operators, present/past
owners
 What costs are RP actually responsible for?
o See typically recoverable cost notes below too.
o 1) Removal Costs ($ EPA already spent by the time it IDs PRPs),
o 2) Remediation Costs (including remediation feasibility and collection studies,
including gov’t employees’ salaries),
o 3) Natural Resource Damages (public waters/lands & flora/fauna/ecosystems – as
determined by USEPA appt’d trustee using regulatory formula; public process),
 How is liability imposed procedurally?
o EPA must exercise diligent efforts to ID the full range of PRP.
 Primarily: USEPA IDs 1 party and then asks them to turn all other PRPs in
 Secondary: Record searches
o PRPs must disclose all relevant information re: their connection the facility
o PRP-Led Cleanup: > 70% of CERCLA Cleanups. Often PRPs will join together
in a PRP committee and divide costs amongst themselves and negotiate w/ the
EPA as a group.
o Otherwise…
o EPA will seek to impose primary liability on 1 or 2 PRPs by § 106 admin. order.
 Usually: who is most likely to be able to pay?
o Primarily RP may then seek contribution actions against other PRPs.
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 What defenses are available (arguing the party is not defined as a PRP)?
o See affirmative defense notes below
o State & Local Gov’ts if they own the site thru virtue of bankruptcy, foreclosure,
tax delinquency, or abandonment.
 But not if they cause, contribute, or operate on a facility w/ a release. E.g.
municipals dumps.
o Secured Interest Owners – e.g. lenders, lien on the property, bank foreclosing on
property.
 But not if they actively participate in the mgmt of the facility – see
Bestfoods.
o Transporter not responsible for choosing dumping site
o Inheritors or bequests
 Cooperating Non-Polluters Special Defense – Property Transactions
o Pre-Purchase Duties: “All Appropriate Inquiry” Handout
o Standard Categories:
 Innocent Purchaser/Landowners,
 Asserting that you looked, and there was no release here.
 Bona Fide Prospective Purchasers,
 Asserting you’ve looked, prior to purchase, and found a release
 Contiguous Landowners – contamination results from adjoining property
o Post-Purchase Duties: 1) Do not cause or contribute to a release from the facility,
2) take reasonable measures to prevent & contain any release, 3) cooperate w/
USEPA and state counterparts in undertaking remediation.
o Failure/Breach = Can be deemed a PRP.
 3 Other Defenses:
o Act of God = “unanticipated, grave, natural disaster. Exceptional, irresistible in
nature. Not predictable or avoidable by the exercise of due care or foresight.”
o Act of War = 2 nations at war; not terrorism.
o Act (or Omission of an Unrelated) 3rd Party = e.g. midnight dumpers don’t
create liability for unsuspecting landowner. Must be a stranger – no contractual
relationship, not an agent, not a renegade employee.
o Same post-purchase duties as All Appropriate Inquiry Defenses
 Petroleum Exclusion – Defense is that “this is not a hazardous substance,” not, “I’m not
a PRP.”
o Very broad: petroleum, crude oil, natural gas, natural gas liquids, sythentic gas,
constituents – benzene, tylene, tolumene (sp?)
Amoco Oil Co. v. Borden, Inc. (5th Cir. 1989) – P’s Burden of Proof in a Prima Facie Case
for a CERCLA § 107 Cost Recovery Action
P Must Show…
1. That the site in question is a “facility”;
2. That the D is a responsible person under § 107(a);
3. That the release or a threatened release of a hazardous substance has occurred;
4. That the release or threatened release has caused P to incur response costs; and
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5. (Many Jx) Also that the response costs were necessary had have been incurred in a
manner consistent w/ the NCP.
a. D can reduce/avoid liability if D shows the failure to comply w/ NCP resulted in
avoidable response costs. – Depends on what type of entity P is.
D may raise affirmative defenses listed in § 107(b); otherwise, P then wins the liability
issue in SJ.
Fertilizer Institute v. EPA (D.C. Cir. 1991) – Elements 3 & 4: Release or Threatened Release
 Parties must notify EPA whenever a reportable quantity (“RQ”) of a hazardous substance
is released. 42 USC § 9603. (First domino – then inspection, studies, remediation, etc…)
 EPA determines RQ of any given hazardous substance. 42 USC § 9602(a).
 Here = radioactive elements (radionuclides) RQ at issue. Many biz orgs objected.
 Challenged Provision: EPA says RQ or greater stockpiling of radionuclides in unenclosed
containment structure or in tanks [or in piles] outside buildings constitutes a [threatened]
release. 54 Fed. Reg. at 22,526. (RCRA doesn’t apply b/c not waste yet.)
o “Unenclosed Containment Structure” = “any surface impoundment, lagoon, tank,
or other holding device that has an open side w/ the contained materials directly
exposed to the ambient environment.”
 Notification of Release Rule: EPA can’t require parties to notify EPA for a stockpiling
of a reportable quantity (“RQ”) of hazardous substances unless the hazardous substance
is actually (not threatened) released into the environment. 42 USC § 9603(a).
o Court notes §§ 9603 and 9606 distinguish between threatened and actual release.
Element 3: Hazardous Substance – § 101(14) Incorporates other Enviro Lists by Reference

 Main Trick: The petroleum exemption in CERCLA.
 Caveat – Petroleum Mixture Rule: Mixture of petroleum and hazardous substance =
hazardous substance, unless the mixture is (un)refined gasoline.
Element 1: Facility –
 Broad Definition = “virtually any place at which hazardous wastes have been dumped, or
otherwise disposed of.”
 E.g. roadsides, shipping containers on boats, fruit-cleaning drenching operation,
 Note – not airplane engines, parts, and containers.
 Big Exemption: “any consumer product in consumer use” is not a facility. § 101(9).
o Caveat: Asbestos from buildings and Lead from shooting ranges = special rules.
 Extent of a Facility: US v. Township of Brighton (6th Cir. 1998) = the entire part
property operated as a dump, not just the contaminated portion of the dump.
o Possible Factors: A single owner, a single manager, contiguous, a single purpose
Elements 4 and 5: Recoverable Response Costs
 P can recover “all costs of removal or remedial action incurred by the US gov’t or a State
or an Indian tribe not inconsistent with the NCP.” § 107(a).
 Removal does NOT = Remedial
o Significant procedural and substantive differences in NCP requirements.
o Plain meaning interpretation does not ID an action as removal or remedial.
o US v. W.R. Grace & Co. (9th Cir. 2005) – removal vs remedial distinction:
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 “boils down to whether the … EPA did not have time to undertake the
procedural steps req’d for a remedial action, and, in responding to a time-
sensitive threat, the EPA sought to minimize and stabilize the harms to
human health and the environment.”
 Removal Action = “interim, partial time-sensitive responses taken to
counter serious threats to public health.”
 Remedial Action = tends to be permanent.
 Typically Recoverable Response Costs At Issue:
o Recoverable:
 Cost of Removal Actions
 Overhead and Oversight Costs (e.g. cleanup by contractors or by PRPs)
 Doesn’t matter if remedial or removal
 US Gov’t Attorney Fees
 Sometimes prejudgment interest in a contribution action against another
PRP under § 113.
 Any Remediation Costs
o Generally Not Recoverable
 Most Jx – (Long-Term) Medical Monitoring Costs
 Private Party Property Losses and Relocation Costs
 Can still seek damages in state court on tort theories.
 Private Plaintiff Attorney’s Fees, UNLESS… (6th Circuit)
 The activities for which the fees are incurred could have been
performed by a non-attorney (e.g. engineer or technician), are
closely tied to an actual cleanup, are not related to litigation, and
are otherwise necessary. Such activities may include, but are not
limited to, ID’ing of PRPs.
 Damage caused by cleanup crews
Standard of Liability – Strict, Retroactive, and Joint & Several Liability

 1) Liability Std. = Strict
o CERCLA doesn’t specify std. for § 107(a) recovery actions.
o § 101(32) defines the std. as = oil spill liability under CWA 33 USC § 1321 =
strict.
 2) Std. of Causation
o Note: P need not demonstrate the causal link between D’s act and P’s harm like
std. torts.
 P need not “fingerprint” the contribution of waste from a specific
PRP/Defendant.
o US v. Monsanto Co. (4th Cir. 1988): Monsanto test for Causation –
 P merely need show evidence that the PRP sent hazardous substances to
the site and that substances like those found in that PRP’s waste were
found at the site.
 Possible Affirmative Defense: The PRP can show that its wastes were
removed from the site before any release occurred.
 Not an Affirmative Defense: An intervening force caused the release.
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 3) Retroactive
o Liability applies to acts taking place before the statute’s adoption in 1980.
o Even if the act was lawful at the time of occurrence.
 Unfair, but Bill of Attainder, ex post facto law, & violation of due process
arguments have failed.
 4) Joint and Several for § 107; Equitable for § 113.
o CERCLA doesn’t mandate joint and several, but permits it where …
 The harm is indivisible, based on “traditional and evolving principles of
federal common law.” Monsanto.
o Affirmative Defense to Joint and Several Liability – if a PRP can do a precise,
scientific volumetric/geographic/substance analysis that proves the harm is
actually divisible.
 Obligation on PRP to prove in evidentiary hearing.
Affirmative Defenses to CERCLA Liability –

 Some listed in § 107(b) [107(a) = cost recovery action provision].
 Also, some Jx add in a couple equitable defenses.
 “Act of God” Defense. US v. Alcan Aluminum Corp. (M.D. Pa.1995) – Very narrow.
o Hurricane held not sole cause of release and resulting response costs.
o Fail if effects could have been mitigated by due care or foresight
o Heavy Rainfall = fail.
o Presence of Asbestos = fail.
 “Act of War” Defense. US v. Shell Oil Co. (9th Cir. 2002) –
o Fail = PRPs argued fed gov’t requisitioning and regulation of production of
aviation fuel during WWII
o Requires either “massive violence” or “natural or man-made catastrophes beyond
the control of any responsible party”
 “Third Party” Defense. § 107(b)(3); succeeds way more often.
o Persons in a contractual relationship can NOT raise!
 E.g. lessors, employees, and independent contractors (transporters)
 Landlords sometimes can raise
o If act or omission occurs after dissolution of contract, then defense available.
o To overcome 3rd party defense: must be a connection between the contractual
relationship and the act or omission resulting in the contamination.
 Proximate Cause Principals apply – if act or omission too indirect and
insubstantial a chain to contamination, then PRP can raise defense.
 E.g. county not responsible for dry cleaner’s dumped pollutants
escaping from leaking sewer lines.
 “Innocent Landowner” Defense. Added in 1986/SARA Amendments; § 101(35).
o Actually a clarification of 3rd Party defense.
o Affirms that, under limited circumstances, landowners who acquire property who
don’t know and don’t have reason to know of contamination may have a defense.
 The title transfer of the property is explicitly not a contractual relationship
related to the act/omission causing contamination.
o To Raise Defense PRP must show…
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 1) at time it acquired the facility
 2) the PRP did not know
 must not have actual knowledge
 3) and had no reason to know
 PRP must make all appropriate inquiries prior to purchase
 Inheritance = more lenient standard than, say, biz purchase
 4) the hazardous substance at issue was disposed of at the facility
o If PRP subsequently discovers contamination, must take reasonable steps to
control the problem.
 Other Statutory – see 2002 Brownfields Revitalization Act re: owner/operator liability
 Equitable Defenses.
o Courts weren’t sure at first, but now these are almost always barred.
US v. Bestfoods (1998) Parent Corporate Liability as an Operator for Response Costs –

 QP: May a parent corporation that actively participated in, and exercised control over, the
operations of a subsidiary (without more) be held liable as an operator of a polluting
facility owned or operated by the subsidiary?
o US Gov’t trying to file § 107(a)(2) recovery action against parent companies
(Bestfood & Aerojet) of now defunct subsidiaries w/ many same officers/mgmt.
o 4 owners: OTT I (actual polluter – extreme pollution here), OTT II (owned by
CPC/Bestfoods), Story (Bankrupt), Cordova (owned by Aerojet).
o Note: EPA going after owners of the owners of the property as operators.
 Held: No, unless the corporate veil may be pierced (under state law).
o If the parent corporation actively participated in, and exercised direct control
over, the operations of the facility itself, then the parent corporation may be held
directly liable as an operator.
 “Direct Operation Test” for Parent Corporation Derivative (Indirect) Liability as
an Operator: “The critical question is whether, in degree and detail, actions directed to
the facility[’s activities] by an agent of the parent alone (not a dual agent w/ subsidiary)
are eccentric under accepted norms of parental oversight of a subsidiary’s facility.”
o Basically, ask was the parent’s control (thru it’s sole agent) so direct as to turn
this from derivative into direct liability? Key language: Piercing Corporate Veil.
o Example Evidence Here: Parent-alone agent “played a conspicuous part in
dealing w/ the toxic risks emanating from the operation” of the facility.
o NOTE – The Court Remanded for further determination of this parent-alone
agent’s role in directly operating the facility re: the haz substance.
 Found that parent-alone-agent’s cleanup ideas not followed = not liable.
 Perverse Consequences: Parent corps now incentivized to no nothing and not help clean!
 Reasoning:
o Interpretation issue = Congressional & dictionary definition of “to operate”
o Parent Corporation == owns subsidiary by a majority of the subsidiary’s stock.
 Generally not liable for acts of subsidiary under US law.
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o Piercing Corporate Veil = shareholder/parent corp may be held liable for conduct
when, inter alia, the corporate form would otherwise be misused to accomplish
certain wrongful acts (mostly fraud) on the shareholder/parent corp’s behalf.
Other Parent Corporation CERCLA Response Liability Situations – (not emphasized)

 Circuit Split for Parent Corporation’s Direct Liability as an Operator:
o 1) Actual Test = Parent Corp only directly liable as an operator when there is
actual evidence of substantial control, in fact, exercised by parent over subsidiary.
o 2) Authority-to-Control Test = Parent corp direct liability is imposed as long as
one corp had the capability to control, even if control was never utilized.
 US v. TIC Inv. Corp. (8th Cir. 1995) – Parent Corp Direct Liability as an Arranger
o For parent to be held directly liable for response costs for subsidiary’s off-site
disposal practices, must be some causal connection or nexus between parent corp
conduct and subsidiary’s arrangement for disposal, or the off-site disposal itself.
 US v. General Battery Corp. (3d Cir. 2005) – (Inherited) Successor Corporation
Liability as an Operator
o Choice-of-Law Issues: Some courts disagree (9th Cir. 1997), but 3rd Cir: federal
common law applies for uniformity of result reasons.
o “Mere Continuation Test” for Corporate Successor Response Liability: Successor
not liable unless,
 1) the successor assumes liability,
 note, successor need NOT know of liability’s existence
 2) the transaction amounts to a consolidation or merger,
 de facto merger if 1] continuation of enterprise of the seller corp,
2] continuity of shareholders, 3] seller corp ceases its ordinary biz
operations and liquidates and dissolves ASAP, and purchasing
corp assumes the obligations of the seller ordinarily necessary for
the uninterrupted continuation of the seller’s normal biz
operations.
 3) the transaction is fraudulent and intended to provide liability escape, or
 4) the purchasing corp is a mere continuation of the selling company
 Canadyne-Georga Corp. v. Cleveland (M.D. Ga. 1999) – Dissolution
o Insofar as dissolution pursuant to state law might affect capacity of a PRP to be
sued under CERCLA, federal CERCLA preempts == can sue after dissolution.
 General Rules for Individual Corporate Managers and Officers
o Not liable, either as operators or arrangers, merely on basis of their position in the
corporate hierarchy.
o May be liable if actively participate in or actually exercise substantial control over
hazardous substance management.
Burlington Northern and Santa Fe Railway Co. et al v United States et al, (U.S. 2009) –
Arranger (Generator) Corporate Liability for Response Costs
 SCt overturned the 9th Circuit and held that Shell Oil Company was not liable under
CERCLA for spills of pesticide. Shell was on the hook for ~$450,000 = 6% of total.
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 Rule: Corporation NOT liable as an arranger for releases of hazardous substances that
occurred “as a peripheral [unintentional] result of the legitimate sale of an unused, useful
product” where the party took numerous steps to reduce the likelihood of those spills.
o Court found (dubiously) Shell arranged for transport rather than disposal.
o The Supreme Court also found that the district court’s “detailed findings”
reasonably supported the district court’s apportionment of liability.
 B&B operated the transport and Burlington & Santa Fe owned the
transport & 20% portion of the B&B disposal property w/ < 10% of spills.
 Criticism: Shell controlled transportation and delivery. Shell knew B&B was a sloppy
operator, knew spills occurred. Shell never stopped sending haz waste.
o Incentive not to look into operator’s mgmt practices or for evidence of spills!
 The case involved a Superfund site in Arvin, California. In 1960, Brown & Bryant began
operating an agricultural chemical distribution business on its four-acre property. In
1975, B&B expanded its operation onto a one-acre parcel that it leased from Burlington
Northern. B&B stored and distributed hazardous substances on the site, including a
pesticide sold by Shell.
 Over years of operation, these hazardous substances including the pesticide sold by Shell
seeped into the soil and upper levels of groundwater at the site. Leaks and spills of one of
the pesticides, which Shell required B&B to purchase in bulk, occurred in part during the
transfer process from delivery tanker trucks to B&B’s bulk storage tank. A plume of
contaminated groundwater located under the site threatened to leach into an adjacent
drinking water supply. B&B became insolvent and ceased all operations in 1989.
Cleanup Standards: How Clean is Clean Enough Under Superfund/CERCLA/SARA?

Case Study – Kress Creek/W. Branch of the DuPage River
 See handout – EPA’s proposed cleanup plan at the beginning of cleanup plan
rulemaking.
 Focuses –
o How EPA determined Cleanup objectives
 After determining nature & extent of contamination
o How EPA determined Cleanup Scope
o How EPA evaluated technologies
o Factors mandated to consider under CERCLA
 Thorium in west branch of Kress Creek/W. Branch of DuPage river.
 Unusually simple b/c just 1 contaminant and just 1 media (sediment and nearby surface
soils) – still extremely complicated.
 Note, after ID’ing the site, it took 13 years for EPA to propose how to clean up the site!!!
 No 3rd party right of appeal until after clean up is executed!!!
o Important for PRP to participate in public clean up plan creation process!!!
o Unique in that final agency action cannot be appealed (until the plan is executed)
in this case.
Lecture – Difference Between § 107, § 106, & § 113 – read w/ Aviall & Atl. Research.
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 § 107 = Cost Recovery
o Traditional recovery method under CERCLA
o USEPA fronts costs, recovers from RPs.
 More useful when superfund had money.
o Two main provisions:
 USEPA, states, tribes can recover costs from RPs for recovery,
remediation, natural resource damage, internal administrative costs IF and
ONLY IF follow national contingency plan
 “Any other person” can seek cost recovery from RPs if and only if follow
national contingency plan.
o Problems
o Congressional Intent? – did “any person” mean any innocent person, or could
PRPs use it against other PRPs? – Atlantic Research resolves = Yes.
o Subsequent Question – If yes, what is judicial authority & appropriate factors to
divide up costs between PRPs?
o PRPs had extremely difficult time parsing out their responsibility under NCP.
o US EPA very much hated fronting costs when sometimes willing PRPs present.
 § 106 = Cost Forcing
o even in absence of spent federal money requires PRP to front costs
 EPA doesn’t have $ to front costs b/c superfund is empty.
o Force thru judicial action or a unilateral administrative order
 For 1 or small # of PRPs at EPA’s choosing: Draconian.
 PRP who pays has after-clean-up remedy to seek repayment for costs by
USEPA.
o Prima Facie: can raise if facing imminent (present/future) threat of substantial
risk to human health or the environment
 § 113 Contribution
o RP vs RP vs RP vs …
o Courts given “broad equitable power” to allocate costs
o 113(f) = The “Gore” Factors
 ability of parties to demonstrate their specific contribution of hazardous
substances to the site
 amount of hazardous substances involved
 degree of toxicity of that substance
 degree of involvement of parties in generation, transportation, or disposal
 degree of care exercised by parties
 degree of cooperation
o Safe Harbor Provision for RPs:
 Affirmative defense to § 113 for RPs who get consent decree or approved
judicial settlements resolving their individual liability
 Creates incentive for each PRP to resolve liability w/ USEPA before other
PRPs
o 3 year statute of limitations!
 § 113(g)
 forces parties who front costs to act promptly to seek contribution.
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 Start on “date of discovery of the loss and discovery of its connection to
…” but Harley isn’t even sure what that means.
Cooper Industries, Inc. v. Aviall Services Inc. (2004) – Contribution and Private Cost
Recovery Actions for Voluntary Cleanup Response Costs = SCt makes a mess.
 CERCLA § 113(f)(1) entitles any person to seek contribution from any other person who
is potentially liable under § 106 or § 107. (Aviall suing Cooper).
 QP: May a party who is not the subject of a prior or pending CERCLA enforcement
action bring a § 113(f)(1) [“during or following any civil action” under 106/107] or a
§113(f)(3)(B) [“after an administrative or judicially approved settlement that resolves
liability to the US or a State”] contribution action against a PRP for voluntarily incurred
response costs?
 BUT § 113 also says: “nothing in this subsection shall diminish the right of any person to
bring an action for contribution in the absence of a civil action under [106 or 107].”
 Held: No. (J. Thomas).
 Nonsense Reasoning – The SCt specifically did not decide whether CERCLA has an
implied right of contribution cause of action that had survived the passage of SARA.
This totally doesn’t make sense w/ the BUT line above…
 This is a conservative ruling. In effect, it discourages parties from incurring voluntary
cleanup response costs (90% of cleanups). Companies will now wait for EPA action.
o Court didn’t address the purpose of CERCLA, took a textualist viewpoint.
US v. Atl. Research Corp (2007) – Contribution and Private Cost Recovery Actions for
Voluntary Cleanup Response Costs = SCt cleans up its mess.
 Federal courts quickly developed a number of responses to the Aviall decision, and within
three years there was a split in the federal circuits regarding whether, in light of Aviall, §
107(a)(4)(B) should be interpreted to provide a[n implied] cause of action for claims by
potentially responsible parties who voluntarily remediate Superfund sites.
 Atlantic = Owner of facility that retrofitted rocket motors for the DOD brought action
against US under CERCLA for partial reimbursement for environmental cleanup costs.
 QP: Does CERCLA § 107(a)(4)(B) create an implied cause of action for claims by PRP
who voluntarily incur response/remediation costs against other PRPs?
o Hence, May a party who is not the subject of a prior or pending CERCLA
enforcement action bring a contribution action against a PRP for voluntarily
incurred response costs under § 107(a)?
 Held: Yes; Yes – but it’s recast as a “cost recovery” action, not “contribution.”
o J. Thomas still couched in “plain terms” reasoning.
o Scope: The Court also indicated that a responsible party which was compelled to
incur cleanup costs as a result of a CERCLA case would be entitled to recover
those costs, pursuant to CERCLA sections 107, 113(f), or both. [See FN6].
 Choosing the Appropriate Cause of Action:
o Terminology: § 107(a) = Cost Recovery Action; § 113(f) = Contribution Action
o “§ 113(f)(1) authorizes a contribution action to PRPs with common liability
stemming from an action instituted under § 106 or § 107(a),
o while § 107(a) permits cost recovery (as distinct from contribution) by a private
party (PRP) that has itself incurred cleanup costs.
 Stupid J. Clarence Thomas Results:
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o Thus, at least in the case of reimbursement, a PRP cannot choose § 107(a)'s
longer statute of limitations for recovery actions over § 113(f)'s shorter one for
contribution claims. Similarly, a PRP could not avoid § 113(f)'s equitable
distribution of reimbursement costs among PRPs by instead choosing to impose
joint and several liability under § 107(a).” Also – 113’s “safe haven” is not in 107
o Trying to Save § 113! – Thomas suggests that PRPs bring a 107 and then use that
as the trigger (a requirement he created in Cooper) to have sued party CC 113…
 Still have difficult statute of limitations issues…
 Open Question: The Atlantic Research Court did not squarely address whether a
responsible party forced to incur cleanup costs pursuant to other authority, such as
RCRA's imminent hazard provisions, would have a claim under CERCLA against other
responsible parties to recover those costs.
Practice Exam Question:

 NEED TO GO STEP-BY-STEP in National Contingency Plan. Don’t miss out on
early notification issue points!
 Do not worry about Cooper and Atlantic that much. Do however notice, that there are
potentially 2 PRPs in the practice exam: Uncle & Ludwig. Hence NCP notifications and
sorting out % responsibility are still relevant.
o Discuss AAI as a way for Uncle to not be PRP, but still have 106/107 options.
 Is CERCLA triggered? Yes

 How do you know?
o 1) Release, 2) hazardous substance, 3) from facility/vessel, 4) into the
environment
o DO NOT SAY: WASTE – it’s a substance!
 Go through step-by-step of NCP!!!
o Notification
 Obligation on ALL previous/present owners and operators to notify EPA
 Here owners & operators abound b/c long term waste facility.
 Check to see if this site is on the USEPA CERCLIS.
 Otherwise, your uncle needs to notify EPA as an owner.
o AAI = bona fide prospective purchaser defense
 Uncle is still the owner, still has to notify
 Innocent purchaser says we’ve looked and no release has happened.
o Preliminary Assessment/Site Inspection
 Either NFRP = No further remediation planned, or
 EPA finds substantial threat to HH or the environment and moves onto
removal
o Removal Action
 Less than 1 year, less than $2 million
 Little advanced notice, EPA moves in and does it.
o ID PRPs and Assign Liability
 Here PRPs = Ludwig, industrial arrangers (generators),
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 PRP = possibly your Uncle if his affirmative defense fails.
 Don’t make the site worse or lose the defense – avoid all
construction! Ludwig has already done digging and has no defense.
 Either, EPA may force PRPs to assume liability
 Std: strict, retroactive, joint & several
 Even if PRP-led clean up, go to Kress-Creek cleanup process
 Or, EPA can choose to expend it’s own funds and seek cost recovery
 What costs can be recovered
o Determine Site Priority [on NPL using Hazard Ranking System (HRS)]
o Kress Creek Process
 Remedial investigation, feasibility study
 9 criteria
 2 mandatory: fully protective of HH and the environment + fully …
whatever… compliant w/ all federal, state, and local law
 most preemptive std.
o Discuss the huge amount of time ahead w/ EPA, and loss of investment, and
maybe Uncle shouldn’t buy the property.
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Brownfields – Will Eventually Replace CERCLA
Lecture: Brownfields History & Basic Features –

 Mid 90s, major city mayors revolted against EPA
 Said CERCLA killing cities.
o Stigmatizing sites w/out providing remediation funds for the vast majority
o Causing urban sprawl to Greenfields on historically non-occupied land
o Most Brownfields just sit there not generating income and not getting fixed.
 “Orphan sites” – city often ended up responsible for them.
o Driving investment dollars away from land redevelopment.
o E.g. 600 acres of Chicago Lakefront property = as big as the loop! Old steel mill.
o Waste of investment in infrastructure, causes duplication of infrastructure.
 EPA Response
o EPA Cleaned up the CERCLIS
o EPA NAFRPd a lot of sites to give investors more certainty.
o EPA entered into state agreements to respect the state’s decision that the site is
clean.
o EPA released the actual tables of clean up standards, so states could just tell you
how clean is clean – as opposed to CERCLA feasibility and cleanup studies.
 Brownfields = State Statutes Enacted.
o Opposed to Greenfield = non polluted site.
 Completely voluntary process; you apply to the state to enter into the program; non-
adversarial  Transactional!
 Can’t escape if you are already being required to clean up by EPA under CERCLA.
 Need only clean up to the standard of use for the next generation’s primary use.
o Not so it’s safe for children to eat the dirt.
o The City decides the primary land use though.
 Don’t have to cleanup entire property, can just do 1 section.
 TACO Stds. = Tiered Approach to Corrective Action Objectives
o 1) Tiered response tables. How clean is clean defined by circumstances.
o 2) Look up equations if circumstances don’t fit pre-calculations/previous
experience.
o 3) Tier 3 Full blown CERCLA risk assessment.
 Brownfields allow Engineered barriers. CERCLA does not.
 Institutional Controls are also acceptable under Brownfields
o Legal restrictions e.g. Most commonly, Prohibitions On Use of Groundwater.
 E.g. can’t use private wells in city of Chicago.
 Huge help b/c don’t have to determine who’s a PRP and who’s responsible
for which sources (of the 1000s out there).
o Criticism = these are fictional programs. We’re not considering the groundwater
as a hydrological unit – the suburbs are going to pay for this later.
 See Download: Risk-Based Corrective Action: Lessons for Brownfields from the
Illinois Rulemaking
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o Harley “helped” develop these rules.
 GOAL OF BROWNFIELDS CLEANUP – No Further Remediation (NFR) Letter
o From the State
o The letter becomes a public record – goes into chain of title for that property.
o 2 Kinds
 1) Comprehensive – clean bill of health for the property
 2) Focused – describes the parts of the property that are still dirty vs those
that have been cleaned to state stds.
 May also have a conditional, e.g. …
o this site is cleaned up to state standards, but only for
industrial use vs commercial use vs residential use, etc…
o this site is cleaned so long as the engineered barrier
described as _______ is not altered or breached by
construction or otherwise.
 May just go into another
 Public Reaction To Brownfields Laws:
o A lot of sites turned out to be just sitting in EPA CERCLA limbo, they weren’t so
nearly as polluted as sometimes thought. It was the stigma more than the actual
pollution.
 Many sites turned their owners huge, unexpected profits.
 Some private companies started going around buying CERCLA sites that
would get NFRPd and then Brownfields them for a HUGE profit.
o Attorney’s who work in this area really like it (especially as opposed to
CERCLA).
o States love it b/c it doesn’t cost taxpayer money. The private cleanup applicants
pays for gov’t oversight w/ a down-payment.
Brownfields Process Step-by-Step: See Handout

 Private Party IDs (section of) site to cleanup.
 Applies to state
o w/ down payment for state oversight.
 ID qualified personnel = usually civil engineers & geologists.
 ID Site Project Manager
 Site Inspection
o Unlike CERCLA, only sample w/in the voluntary perimeter of your cleanup zone.
o Send results to the state.
 ID cleanup stds for the state
o Use the lookup tables,
o Find your contaminants, and
o ID anticipated future use.
 Undertake the remediation
 Confirmation sampling
o Sent to the state.
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 State gives you NFR Letter.
o Record into chain of title.
 Total process takes ~ 1 year usually.
Note These Interesting Features of Brownfields –

 1) Public notification and participation is completely voluntary.
o However, Brownfields documents are FOIA ready!
o State EPAs will also usually respond to public letters. They like the public.
o Assurances to private capital are traded for sacrifice of environmental principals.
 2) No 3rd Party Appeals Process.
o If your neighbor gets an NFR letter, you can’t say, “it’s still not clean enough.”
 3) No Site-by-Site Financing Warfare.
o Party voluntarily takes on Brownfields cleanup.
o Costs are determinable and can be built in to investment/profit expectations.
 4) Who takes advantage of this program?
o EVERYONE!
o When the clean up standards are in a table, you can find sites that are cleaner than
the clean up standards = once-in-a-generation investment.
o Nothing to prevent present owners & operators hiding from CERCLA and/or
RCRA from voluntarily opting for Brownfields
2002 CERCLA Amendments
 Fed gov’t codified promise not to undertake CERCLA clean up unless the state says there
is no possibility/prospect that the site can be cleaned up under Brownfields.
 CERCLA now dying. 90% of clean up sites are being cleaned up under Brownfields.
o States now only send the crappiest of the crap to CERCLA. Also, helps CERCLA
prioritize resources and degree of imminent harm.
Spillane v. Commonwealth Edison Co. (2003) –

 Background:
o Oak Park, Illinois known as Barrie Park
o Citizens initiated action against utilities alleging utilities’ effort to remediate area
of contamination at former site of a manufactured gas plant were insufficient and
caused spread of further contamination, in violation of RCRA.
o Utilities moved to dismiss. DENIED.
o IL EPA nominally overviewed the utilities’ voluntary clean up efforts.
o there was no prosecution or financed cleanup under RCRA or CERCLA
underway, rather, program in which utilities participated was voluntary, self-
funded state program for remediation
o Term = Site Remediation Program = “SRP” under IEPA
 Claim: To make out a prima facie claim under RCRA, plaintiff must allege
o (1) that defendant has generated solid or hazardous waste,
o (2) that D is contributing to or has contributed to handling of this waste, &
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o (3) that this waste may present imminent and substantial danger to health or
environment. Solid Waste Disposal Act, § 7002, as amended, 42 U.S.C.A. § 6972.
 does not require an existing harm, only an ongoing threat of future harm
 RCRA Remedies: RCRA offers a private citizen a choice of two remedies:
o a mandatory injunction, i.e., one that orders a responsible party to ‘take action’ by
attending to the cleanup and proper disposal of toxic waste, or
o a prohibitory injunction, i.e., one that ‘restrains’ a responsible party from further
violating RCRA
 Held: utilities’ [voluntary] participation in remediation program did not preclude
citizens’ showing imminent and substantial danger; and
 Held: utilities’ participation in remediation program did not bar suit for injunctive relief
 Burford Abstention Doctrine
o Defined: difficult questions of state law bearing on policy problems of substantial
public import whose importance transcends the result in the case then at bar’ ” or
where the federal case “ ‘would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial public concern
o 7th Cir. Factors: (1) whether the suit is based on a cause of action which is
exclusively federal; (2) whether difficult or unusual state laws are at issue; (3)
whether there is a need for coherent state doctrine in the area; and (4) whether
stated procedures indicate a desire to create special state forums to adjudicate the
issues presented.
o No Burford application here.
o Short of state legal or other formal agency proceedings against a defendant, the
difficulty of determining just what agency action or overview is sufficient to
cause the court to abstain under Burford is too great, and beyond what Congress
intended when it enacted RCRA
 Colorado River Abstention Doctrine
o Defined: The fundamental purpose of this doctrine is the promotion of “[w]ise
judicial administration” and the avoidance of conflicting and duplicative litigation
o Lots of Factors: basically, consider how complicated and cost-efficient it would
be to litigate in state and federal based on how similar the parallel cases are.
o No Colorado River application here.
 RCRA = exclusively federal jurisdiction, state trespass/tort/nuisance
claims aren’t really close enough to be the same suit
Wed. Nov. 17, 2010 –

1. AAI even if planning on Brownfields! Why?
a. Inoculate from CERCLA Action as Bona Fide Prospective Purchaser
b. Lets you assess level of contamination – biz planning tool
c. Bank will require it: Loan terms & Hate CERCLA complications too!
2. Review Cooper v. Aviall = § 113 and Atl. Research = § 107!
a. 113 = no recovery if voluntarily clean up
3. Criticisms of Brownfields
a. Just pushing enviro problems onto future generations
i. Don’t even require future testing!
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b. “Institutional Controls” endanger groundwater
c. Engineered Barriers not checked or monitored post-NSR (not long-term soln)
d. We have underestimated amount of contaminant bioavailability and migration
i. Esp. “Vapor Intrusion” = leak from ground into air.
e. No Public participation
f. No 3rd party appeals.
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Enforcement of Environmental Law
Lecture
 Skipped b/c he said it was redundant w/ my clinic lectures.
 Note: None of these cases are NEPA enforcement
o 3rd Party Brings APA § 706 Challenge of Final Agency Action
o Key language “cracked foundation” for the final agency action
o P must show final agency action was against “manifest weight of evidence” i.e.
violates A&C Chevron deference review std.
 Note: In all of the following cases, the defendant’s did NOT challenge the assertion that
they had, in fact, violated the law!
Enforcement of Environmental Law 983-92

 Introduction
o Goal of Enforcement = to extent serves as credible deterrent for enviro violations
o Traditional Enforcement (Stick) + “Compliance Assistance/Incentive” (Carrot)
 The 4 Major Actors
o 1) Federal Officials
 Mainly EPA, but also DOI (re: ESA), DOJ, etc…
 EPA = Office of Enforcement and Compliance Assurance (“OECA”)
 Also, Office of Water, Air & Radiation, Solid Waste & Emergency
Response, etc…
 10 Regional Offices – different philosophies and histories; fiefs.
 1) Develop Enforcement Priorities & Policies,
 2) Conduct Inspections, negotiations, administrative enforce actions, and
referrals to DOJ, and
 3) authorize and oversee delegated enforcement authority to states
 Growing: Administrative Adjudication – Mechanisms & Usage
 DOJ = 1. civil enviro enforce, 2. enviro crimes, 3. Enviro defense, 4.
Appellate
 D.C. and state US AGs.
 Sometimes turf wars w/ USEPA
 Other Executive Branch
 Office of Inspector General (“OIG”) gives EPA/states bad enforcement
report cards.
 Office of Information and Regulatory Affairs (OIRA  in OMB)
 Reviews EPA regs.
 OMB grades EPA performance (poor enforce grades)
 Congress/GAO
 Investigative, critical of uneven EPA enforce efforts + limited
success
 Federal Judiciary – every step.
o 2) State Officials
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1970s federal control of enviro law begins
But “cooperative federalism” structure w/ significant authority delegated
 Sometimes EPA “obligated” to delegate to states meeting
guidelines (e.g. state develops ID rules to federal and administers)
 1990s states become primary enviro enforcers
 supported by Clinton and Bush.
 States Subject to federal oversight
 National Environmental Performance Partnership System (NEPPS)
o Very significant state oversight
 State Review Framework (SRF)
 Controversy – state enforcement may be responsible for poor enviro
enforcement grades <vs> states as effective laboratories & preempt slow
feds.
o 3) ENGOs
 “private attorneys general” thru citizen suits
 private compliance monitoring force “good neighbor committees”
 systematic evaluation of government enforcement performance
o 4) Regulated Parties
 consultants and representatives
 Debate methods to achieve: enforcement & compliance
 Encourage regulated parties to be proactive
 Facilitate timely ID of problems
 Promote timely remediation
 Self-Audits & Environmental Management Systems (EMSs)
Harmon Industries Inc. v. Browner (8th Cir. 1999) – Who enforces: delegated-state vs EPA vs
both?  (Note Circuit Split w/ 10th Cir.)
 Procedural History:
o Harmon found out employees had been illegally dumping out back for 14 years
and voluntarily contacted Missouri Dept of Natural Resources (MDNR).
o MDNR & Harmon created cleanup plan and Harmon cleaned up.
o Meanwhile, EPA files suit against Harmon seeking $2.34 million in penalties.
o MDNR released Harmon from penalty liability b/c “self-reported & cooperation”
o Admin. Law Judge (ALJ) allowed EPA civil fine but reduced to $586,000.
Appealed, affirmed.
o Harmon files APA 5 USC § 706 seeking judic review of EPA final agency action
o Fed. District = SJ to Harmon = 0 penalties
 based on RCRA & res judicata,
o EPA appeals. 8th Cir. Affirms for Harmon.
 Duplicate Delegated-State & USEPA Enforcement = “Overfiling”
 Statutory Interpretation
o RCRA: 42 USC § 6926(b) = delegated-state’s program operates “in lieu” of
federal & w/ “same force and effect” as USEPA action.
o EPA points to § 6928 authorizing EPA enforcement action and requiring notice
before enforcement if in a delegated-state Jx. Says “in lieu” limited to which
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regulation (state or federal) not ID of enforcer, and “same force and effect” just
refers to permits.
o Ct looks to plain language in light of entire statute, broader purpose, & Leg.
History.
 Also concerned w/ contradictory results, comity, & federalism.
 Rule: When EPA delegates to a state the authority to administer and enforce RCRA, the
state assumes primacy in enforcement decisions. Hence, Overfiling is not allowed.
o Same as primacy for issuance of permits.
o EPA can enforce if delegated-state declines. State gets first bite at the apple.
o Said EPA’s interpretation was “unreasonable” and accorded “no deference.”
 De Novo Review of Res Judicata Arguments found MDNR dissent decree was precedent.
o Issue was whether parties were identical. Privity found b/c EPA and MDNR
represent the same legal right – not dependent on subjective interests.
o EPA also says sovereign immunity bars res judicata from applying to US unless
US was actual party in prior lawsuit.
 Basically found that MDNR acts for the EPA,
 EPA “had a sufficient laboring oar” at point of delegation authorization
1002-11
The Legal Authorities
 Enforcement provisions of major enviro laws allow 1) gov’t monitoring and 2)
administrative, civil, and/or criminal enforcement
 1. Gov’t’s Information-Gathering Authority
o Investigative/Inspection + Required Self-Reporting
o Best Known = CWA’s Discharge Monitoring Reports (DMRs) – “magic box”
o Reported info essential for citizen suits
o Bounty Provisions = reward individual’s who provide info
o Whistleblower Provisions = protect reporters from reg’d party retribution
o EPA may enter regulated premises, copy records, inspect monitoring equipment,
and take samples
 See table for CWA, CAA, CERCLA, and RCRA pg. 1003.
o States conduct vast majority of inspections; EPA does ~ 20,000/yr.
o 700,000+ regulated facilities.
o Problems: credibility of levels of compliance, numbers of inspections, quality of
data, and truth of self-reporting
o Constitutional Issues re: EPA Inspections –
 4th Amendment: Administrative warrant upon reasonable suspicion of
violation or neutral inspection scheme.
 No need if consent, emergency, or “open field” doctrine.
 5th: Self-Reporting can’t escape thru bar on self-incrimination
 5th: Takings = courts not very responsive to whiners.
 2. Gov’t’s Civil Litigation Authority
o Goal = deter noncompliance in presence of financial disincentives for clean tech
72 of 82
o State Enforcement almost always cooperative w/ companies and then gradually
ramps up to fines
o EPA enforcement much harder-nosed.
o 1) issue administrative compliance orders w/ compliance timetable
 notify violator of specific nature of violation + reasonable/factor timetable
 “as expeditiously as practicable, but …” <= 1 year after order issuance
o 2) impose administrative civil penalties;
 found in later statutes. Sometimes large daily fines w/ upper limits.
 No limit in RCRA for high fines.
 Fines only assessed after formal adjudicatory proceedings.
 EPA gets lots of discretion in exactly how much $ for specific violation
 See guidance docs tho for thought process
 Field citations allowed for minor violations.
o 3) initiate civil litigation for injunctive relief and/or civil penalty assessments
 temporary or permanent injunctive relief
 judge has broad discretion – see Smithfield for weighing process
 EPA may remove operating permits
 General SoL = 5 years. Can be tricky, don’t count on this defense.
o 4) criminal prosecution (next section)
US v. Smithfield Foods (4th Cir. 1999) –

 Smith challenging SJ for CWA violations in amount of $12.6 million civil penalty.
 Contends district court didn’t calculate properly – re: determination of economic benefit
(factor #2) and the denial of “good-faith” credit for Smith’s compliance efforts (#4).
 Smithfield 6 yrs dumping hog-slaughter into a river while building a sanitary canal w/
permits.
 Smith violated effluent limits, submitted false DMR reports, submitted late reports, and
destroyed records = 6,982 days of violations.
 Std. of Review of Civil Penalty Assessments = Abuse of Discretion
 CWA lays out 6 penalty calculation factors to consider: 1) seriousness of the violation(s),
2) economic benefit gained from violation, 3) history of violations, 4) good-faith efforts
to comply w/ requirements, 5) economic impact of penalty on the violator, 6) other such
matters as justice may require.
 Max possible calculation = $174.55 million! Actual = 7.2%.Gov’t asked for $20 million.
 Court found benefit = #2 to be $4.2 million.
o Even if it just tripled that amount, not reversible.
o No std way to calculate “economic benefit” – broad concept, no explicit definition
 Here, judge included costs avoided by violation: “costs-avoided method”
 #4 “good faith” = court here just looked to the period of violations, noting “other than
agreeing to connect the [sanitary dumping canal] … ‘Smithfield apparently believed they
could discharge as much and as frequently as they wanted into the [river].’”
 Note: EPA suggests several computer models that aid in cost avoidance determination.
 Note: This exemplifies only 1 of many methods allowed e.g. “top-up” vs “bottom-down”
73 of 82
1019-21
The Legal Authorities Cont…
 4) Criminal Liability
o Historically focus has gone back and forth; political considerations alleged.
o DOJ has enviro crime unit
o Generally Criminalizes “Ordinary Negligence” rather than “gross or criminal
negligence”
o So-called “knowing endangerment provisions” = recklessness std
 Severe criminal penalty for placing persons at imminent risk of death or
serious bodily injury
 However, need proof D acted knowingly
o Individual Crime std of Mens Rea continues to be difficult to determine and
controversial to apply.
US v Ahmed (5th Cir. 1996) pg. 1021 – Application of the “Knowing” Mens Rea
Requirement under CWA.
 1992: Ahmad ran a gas station, found out an 8,000 gallon tank of gasoline was leaking.
 Water got in tank and gas couldn’t be sold. Ahmad hired CTT [enviro consultant] to
examine the tank in 1993.
 CTT says you need to empty it; we can do that for you. Ahmad says, can I do it myself?
 CTT: dangerous and illegal. Ahmad: “Well, if I don’t get caught, what then?”
 D = Ahmad got a hand held motor pump, told people it was for water in his lawn, and
emptied 4,700 gallons into the street storm drain and manhole in front of the gas station.
 Storm Drain: Emptied into creek and heads to lake eventually. Needed 2+ vacuum trucks.
 Manhole: effed up the city’s sewage treatment plant. Evacuated, firefighters, haz waste
crew, risk of explosion so bad 2 nearby schools evacuated.
o Fire official: hundreds, if not thousands could have died.
 D’s defense (to 2 counts) was that discharge was not “knowing” b/c he didn’t know it
was gas, claims he thought he was discharging water.
 Count I = knowing point source discharge of a pollutant into navigable water w/out
permit
 Count II = prohibit operation of a “source” in manner that contravenes effluent std,
prohibition, or pretreatment standard.
 QP: To which element(s) of the 2 counts does the “knowing” modifier apply?
o i.e. D must know it was a discharge <vs> know the substance was a pollutant.
 Reasoning: In the face of ambiguous statute, must favor scienter presumptions that
reduce burden on the criminal defendant.
 Held: Under the CWA, each element, including the fact that the substance was a
pollutant, must be “knowing.”
Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000) p. 163 –

 Procedural History:
 CWA citizen suit. Injunctive relief found inappropriate b/c D came into compliance
during litigation.
74 of 82
 Court did assess a civil penalty of $400,000 which it thought would provide an adequate
“total deterrent effect” along w/ legal fees for both sides D was required to pay.
o Even though $1,000,000+ in economic benefit from violations
 Appeals vacated penalties b/c it considered case moot once compliance reached & P
failed to appeal denial of equitable relief.
o “Civil penalties payable to the gov’t… would not redress any injury Ps have
suffered.” Citizens alleged their aesthetic and recreational use was harmed.
 SCt REVERSED and held for P = Citizens.
 The defendant polluter also claimed that the case was moot because it had ceased
polluting, and had closed the factory responsible for the pollution complained of. The
Court noted that the polluter still retained its license to operate such a factory, and could
reopen similar operations elsewhere if not deterred by the fine sought. Therefore, the case
was held not to be moot.
 The Supreme Court's majority in Friends ruled that plaintiffs did not need to prove an
actual (particular) harm to residents. Writing for the majority, Ruth Bader Ginsburg held
that injury to the plaintiff came from lessening the "aesthetic and recreational values of
the area" for residents and users of the river because of their knowledge of Laidlaw’s
repeated violations of its clean water permit.
 In addition, the case held that a civil penalty could be enforced against an entity even
though the interests protected were private. The court agreed with Congress in holding
that civil penalties in the Clean Water Act cases "do more than promote immediate
compliance by limiting the defendant's economic incentive to delay its attainment of
permit limits; they also deter future violations."
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (1987) p. 1027

Syllabus
 Section 505(a) of the Clean Water Act authorizes private citizens to commence a civil
action for injunctive relief and/or the imposition of civil penalties in federal district court
against any person "alleged to be in violation" of the conditions of a NPDES permit.
 Between 1981 and 1984, petitioner repeatedly violated the conditions of its NPDES
permit by exceeding authorized effluent limitations. However, due to the installation of
new equipment, petitioner's last reported violation occurred in May 1984.
 Nevertheless, in June 1984, having given notice of their intent to sue to petitioner, to the
Environmental Protection Agency (EPA), and to state authorities, as required by § 505(b)
of the Act, respondents filed a § 505(a) suit alleging that petitioner "has violated . . . [and]
will continue to violate its NPDES permit."
 The District Court denied petitioner's motion for dismissal of the action for want of
subject-matter jurisdiction under the Act, rejecting the contention that § 505(a)'s "alleged
to be in violation" language requires that the defendant be violating the Act at the time of
suit, and holding in the alternative that respondents satisfied § 505(a)'s jurisdictional
requirements because their complaint alleged in good faith that petitioner was continuing
to violate its permit at the time the suit was filed.
 The Court of Appeals affirmed, agreeing with the District Court that § 505(a) authorizes
suits on the basis of wholly past violations, and finding it unnecessary to rule on the
District Court's alternative holding.
75 of 82
Held:
1. Section 505(a) does not confer federal jurisdiction over citizen suits for wholly past violations.
Pp. 56-63.
(a) Although § 505(a)'s "to be in violation" language is not without ambiguity, the most
natural reading of that language 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. The contention that Congress' failure to
choose statutory language that looked to the past is simply the result of a "careless
accident" is unpersuasive, since the citizen suit provisions of several other environmental
statutes that authorize only prospective relief use language identical to § 505(a)'s, while
other statutory provisions demonstrate that Congress knows how to avoid prospective
implications by using language that explicitly targets wholly past violations. Also
untenable is the argument that, since the EPA compliance order provisions in § 309(a) of
the Act use language parallel to the § 505(a) "to be in violation" phrase, since § 309(a) is
incorporated by reference into the EPA civil enforcement provisions of § 309(b), and
since the EPA may bring enforcement actions to recover civil penalties for wholly past
violations, citizens, too, may maintain such actions. Section 309 authorizes equitable
relief and the imposition of civil penalties in separate and distinct provisions, including §
309(d), which provides for civil penalties but does not contain language parallel to §
505(a)'s. In contrast, § 505(a)'s reference to civil penalties and injunctive relief in the
same sentence suggests a connection between the two remedies, and supports the
conclusion that citizens may seek civil penalties only in a suit brought to enjoin or
otherwise abate an ongoing violation. Pp. 56-59.
(b) The language and structure of the rest of § 505's citizen suit provisions make plain
that the harm sought to be addressed by such a suit lies in the present or future rather than
the past, particularly in light of the pervasive and undeviating use of the present tense
throughout § 505. Any other conclusion would render gratuitous § 505(b)'s notice
provision, the purpose of which is to give the alleged violator an opportunity to bring
itself into complete compliance with the Act and thus make a citizen suit unnecessary.
Moreover, § 505(b)(1)(B)'s bar on citizen suits once a governmental enforcement action
is under way suggests that the citizen suit is meant to supplement, not supplant,
governmental action, which supplemental role could be undermined if citizen suits for
wholly past violations were permitted, since such a suit might intrude upon governmental
discretion to enforce the Act in the public interest. Pp. 59-61.
(c) The Act's legislative history indicates that § 505 suits were intended to abate pollution
and to enjoin continuous or intermittent violations, not to remedy wholly past violations.
Pp. 61-63.
2. Section 505 confers citizen suit jurisdiction on federal district courts when plaintiffs make a
good-faith allegation of continuous or intermittent violation. It is not necessary that plaintiffs
prove their allegations of ongoing noncompliance before jurisdiction attaches, since the statute
does not require that a defendant "be in violation" at the commencement of suit, but only that the
defendant be "alleged to be in violation." The good-faith requirement of Federal Rule of Civil
Procedure 11 will adequately protect defendants from frivolous allegations. Moreover,
allegations of injury are sufficient under this Court's standing cases to invoke the jurisdiction of a
court, and the Constitution does not require that the plaintiff offer proof of the allegations as a
threshold matter. Furthermore, longstanding mootness doctrine will protect the defendant from
76 of 82
the continuation of suits after the plaintiff's allegations of ongoing violations become false
because the defendant has begun to comply with the Act. Since the Court of Appeals declined to
decide whether respondents' complaint contained a good-faith allegation of ongoing violation by
petitioner, the case must be remanded for consideration of this question. Pp. 64-67.
791 F.2d 304 (CA4 1986), vacated and remanded.
Enforcement Smithfield Harmon Ahmad Gwaltney Laidlaw

Lecture
Summary
Plaintiff U.S. MO’s DNR, then U.S. Chesapeake Friends of the
U.S. Bay Fdn. Earth
Defendant Swine slaughter Assembles Conv. Store & Meat Packing Haz. Waste Incin.
& on-site water Circuit Boards in Gas Station w/ on-site water
treatment MO Operator treatment
Violation CWA: Direct RCRA – TSDF UST needed to CWA: NPDES, CWA: Direct
Discharger/ Land Ban: be cleaned out. 5 of 7 regs. Discharger;
NPDES – 1. Solvent waste Operator went 1981-84. NPDES. Effluent
Effluent Violat; land disposal. to env- consult, Effluent Limits and Monitoring.
2. False reports; 1973-87. but then did it & Monitoring. 1987-95.
3. Late reports; Allegedly the himself.
4. Destruction maintenance Almost blew
of Records. crew w/out mgmt up POTW
1991-97 knowledge. w/petroleum
Type of Civil Administrative Criminal Citizen Suit Citizen Suit (for
Action (focus = comply) injunct + penalty)
Defense? Penalty State Primacy Mens rea w/in 60 day No standing as to
Excessive @ under delegation applies to every notice achieved penalty portion of
$174.55 million voids EPA element of the compliance = suit. QP: does
Ct set $12.6 mil enforcement crime – not just no SMJ. For Jx penalty standing
using 6 factors. the discharge citizen must survive comply
Economic conduct allege achieved during
benefit from element. Must ‘continuous or litigation? Note –
cheating = $4.2 have known intermittent’ penalty pays to
million. was pollutant. violations. gov’t not citizens.
Result? $12.6 million Court Accepts Accepts Remanded – is Standing survives;
stands Defense. defense. citizen alleging penalty = deter –
ongoing violat? still have NPDES!
Notes – DoJ enforces Mgmt should Jury 1 of 2 common 2 of 2 common
General: until it gets 1) have know waste instructions CSuit defenses: CSuit defenses:
notice how injunctive relief was disappearing were the issue. 60 notice of standing –
long it takes such that b/c of RCRA Reinforces intent to C sue showing of harm.
to get to violations are reporting. US got Plaza Health w/ chance for Note suit filed
enforcement resolved (or involved b/c MO and strong compliance or 1992, compliance
action! will be w/ gave their biz a reluctance to gov’t enforce achieved during
cmpliance sweetheart deal criminalize preemption litigation – so no
schedule) AND of no penalty. (complex) (but can still injunctive relief.
77 of 82
2) Non- Mgmt “cooperate enviro laws. intervene) Citizens here
compliance & self-report” + Prob different alleged general
does not voluntary result if Civil aesthetic &
econom benefit. remediated. case. recreational harm.
78 of 82
(BP/Halliburton/Transocean) Deep Water Horizon Oil Spill

& Underground Storage Tanks
 How did this happen?

 Remember APA § 706 threats against agencies for failure to follow process.
o NEPA –
 Final Agency Action = Getting Permit from Minerals Mgmt Services for
drilling
 Needed to conduct EA and obviously EIS
 Did they have to account for “catastrophic events”?
 NEPA is an information-gathering “hard look” “full environmental
disclosure.” (Some say “paper tiger”). Final agency action not
determined by NEPA – NEPA just procedural check box.
 1st Check 40 CFR 400 CEQ regulations.
o Carter Admin – do a worst case
o Reagan Admin – only “reasonably foreseeable” enviro
impact, including catastrophic, but only if it is supported by
science and more than conjecture
 Vermont Yankee = pure conjecture concerns.
 Methow Valley & = no “worst case” needed.
 April 2007 = Programmatic EIS by Dept of Interior: Minerals Mgmt
 General EIS analysis for outer continental shelf exploration &
production
 Simultaneously, April 2007 = Geographical more specific EIS
 EIS for Western and Central Planning Area drilling leases.
 Eastern = Florida, Central/Western = TX, LA, MS, and Alabama
 October 2007 = Additional (getting more specific) EIS for area 206
 This is the Deep Water Horizon Location
 Regulatory CATX issued for Central/Western Gulf regions 20 yrs ago.
 Remember CATX created in Rulemakings.
 Exempted from EA/EIS unless seismic, untested deep water
(meant 5000 ft at that time, but no one argued it), marine
sanctuary, hazardous natural conditions, new or unusual
technology (and a couple similar).
 BP points out how they fit so well into the CATX
 Worst case 4600 barrels assumed. (280 million gallons and counting…)
 April 9, 2010 – BP American Sr. Federal Affairs Director urged more
CATX where enviro dmg. is likely to be “minimal or non-existence”
o ESA
 § 7 re-read
 1st need consultation for possible threatened species or critical habitat
impact
 2nd = Biological Impact Statement.
79 of 82
 Either prohibition of project, mitigation conditions, or OK’d free
and clear.
 BP Consulted w/ Fish and Wildlife Services and National Marine
Fisheries Service
 Fish and Wildlife = No expected adverse (expected, this dept
focuses on terrestrial animals)
 National Marine Fisheries wanted full BIS; then gave Bio-Opinion:
o Sea turtle, sperm whales, and gulf sturgeon, but not at
threatening level even over 40 years
o Assumed 3 large spills over 40 yrs <= 193,000 gallons each
o Individual threatened/endangered animals killed, but
species and their critical habitat not threatened
o But project OK’d, critics say more mitigation/safety
measures should have been required.
o CWA
 Spill Prevention, Control, and Countermeasure (SPCC) Regulations Apply
 Not in 40 CFR 400 – the Deep Water Facility was not planned to
be discharging at all, so no Direct Discharge Permits
 Yes, is w/in range of US Navigable Waters
 SPCC Regs only require the facility to create an internal document for
spill prevention, control, & countermeasure. – NOT give to USEPA
 CWA amended in 1990 by Oil Pollution Act
 After Exxon Valdez
 Requires Facility Spill Response Plan, but gives a “model rule” in
the appendix = copy & paste.
o Must anticipate “reasonable possibilities” of releases &
assure availability
 Liability Trust Fund also created.
 BP’s liability maxed out at $75 million
 Fed Gov’t had a $1 billion max per incident option
 Obama & BP “agreed” to a $20 billion fund
 Underground Storage Tanks (UST)
o These USTs for petroleum are incredibly common
o Subtitle 1 of RCRA, added in 1984 amendments
o State insurance funds created on UST users
o If you removed a tank and found released substances
 Required assessment of soil/groundwater contamination
o Specific, new UST installation guidelines too
 Materials
 Leak avoidance and detection
o Most older tanks have been closed
 In IL = 65,000 removed; 22,000 active tanks left – almost all new.
 UST Relates to Brownfields
o Old/Current UST sites extremely common.
o Not subject to CERCLA (petro exemption), just RCRA
80 of 82
o Brownfields are the most common ways of cleaning
 Quite inexpensive (relatively).
81 of 82
General Review Notes
 3 Levels of Control for Indirect Dischargers (into POTW) – see handout

o General Prohibitions
 E.g. explosives
o Categorical Limits
 Unique to source category
o Local Limits
 Set by POTW
 How useful are the historical context cases (e.g. TVA, or Gibbs for ESA) to mention on
the exam?
82 of 82

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Outline: Environmental Law and Policy I Professor Harley

Fall 2010 Kyle Carlson

Administrative Procedures Act (“APA”) –

 90% of environmental law takes place w/out court participation.

Chapter 40 of the Code of Federal Regulations (40 CFR § __ ) –

o US EPA Administrator promulgates mandate-required regulations

APA Rulemaking Process –

Judicial Review of Agency Statutory Implementation (APA “Informal” Agency Actions) –

National Environmental Policy Act of 1969

NEPA – Congressional Purpose and Judicial Enforcement

Administering NEPA’s Requirements: The Council on Environmental Quality (“CEQ”)

1) Federal Action? – any 1 of below satisfies

2) Significant Environmental Effects?

3) Detailed Environmental Statement – In Consultation

Challenging the Sufficiency of an EIS

Scope of an EIS esp. Alternatives –

Adequacy of an EIS upon Judicial Review –

Endangered Species Act (“ESA”)

Endangered Species Act (1974 Nixon) –

Focus on §§ 4, 7, 9, and 10 – see handout

 § 9 – Restrictions/Limits on Private Action

Lecture – ESA Practice Exam Question

Clean Water Act (CWA)

Clean Water Act Passage

Constituent Programs – SEE SCANNED DIAGRAM

40 CFR § 400 et seq. = Point Sources Lecture

40 CFR § 400 Continued – Indirect Discharger: Pretreatment

Exam Question Review – Categories of Dischargers + Requirements + Process + Entities

Pollution Prevention Act (PPA)

Summary of EPA’s Regulatory Authority under Subtitle C of RCRA

Distinguishing Waste vs Useful Materials: Legitimate vs Sham Recycling

American Petroleum Institute v. EPA (D.C. Cir. 2000) (“API II”) –

 The Product Rule – quick version, 40 CFR § 266.20

• Nonindustrial Solid Wastes (Bullets, Pesticides) – Products meant to be discarded

Identification and Listing of Hazardous Wastes

Characteristics of Hazardous Wastes

Note on Contingent Management – see pg. 853.

Regulation of Hazardous Waste Generation and Transportation –

Regulation of Hazardous Waste Treatment, Storage, and Disposal (TSD) –

Note on Siting TSDFs and Environmental Justice

SDSS, Inc. v. South Dakota (8th Cir. 1995) –

Comprehensive Environmental Response, Compensation, and Liability Act

How do you know CERCLA is triggered?

National Contingency Plan

Element 3: Hazardous Substance – § 101(14) Incorporates other Enviro Lists by Reference

Standard of Liability – Strict, Retroactive, and Joint & Several Liability

Affirmative Defenses to CERCLA Liability –

US v. Bestfoods (1998) Parent Corporate Liability as an Operator for Response Costs –

Other Parent Corporation CERCLA Response Liability Situations – (not emphasized)

Cleanup Standards: How Clean is Clean Enough Under Superfund/CERCLA/SARA?

Practice Exam Question:

 Is CERCLA triggered? Yes

Brownfields – Will Eventually Replace CERCLA

Lecture: Brownfields History & Basic Features –

Brownfields Process Step-by-Step: See Handout

Note These Interesting Features of Brownfields –

Spillane v. Commonwealth Edison Co. (2003) –

Wed. Nov. 17, 2010 –

Enforcement of Environmental Law

Enforcement of Environmental Law 983-92

US v. Smithfield Foods (4th Cir. 1999) –

Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000) p. 163 –

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (1987) p. 1027

Enforcement Smithfield Harmon Ahmad Gwaltney Laidlaw