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Questions and Answers

What was the total economic benefit Laidlaw gained from its violations of the mercury discharge limits?

$405,800

$489,000

$1,092,581 (correct)

$950,000

What type of lawsuit can citizens file against the EPA?

Class action lawsuit

Breach of contract lawsuit

Private tort lawsuit

Citizen suit (correct)

In the Laidlaw case, how many times did the company violate its NPDES permit limitations?

250 times

489 times (correct)

300 times

405 times

What does the term 'amicus curiae' refer to in legal terms?

A person providing information to the court who is not a party to the case Signup and view all the answers

Which of the following is NOT mentioned as a potential legal concern in environmental law?

Corporate tax evasion Signup and view all the answers

What action typically follows an inspection that identifies compliance deficiencies?

Issuance of a warning letter Signup and view all the answers

What does an Notice of Violation (NOV) indicate?

Pending administrative action Signup and view all the answers

Which statement best describes injunctive relief?

A court order requiring or prohibiting specific actions Signup and view all the answers

Why might a company request a meeting after receiving an NOV?

To avoid further administrative action Signup and view all the answers

What is a common resolution method for federal actions against businesses for environmental non-compliance?

Settlement agreements Signup and view all the answers

What might a settlement agreement include?

Injunctive relief, fines, or supplemental environmental projects Signup and view all the answers

What triggers enforcement actions like inspections under federal environmental statutes?

Random or routine checks, or based on complaints Signup and view all the answers

Which group is allowed to file lawsuits in federal court to enforce environmental laws?

Any citizen Signup and view all the answers

What is a key characteristic of True Occurrence insurance?

Coverage is provided even if claims are made after the policy has expired. Signup and view all the answers

In an indemnification clause, what does the term 'indemnify' imply?

To promise coverage for losses caused by a third party's actions. Signup and view all the answers

What is generally a concern to check under General Liability Insurance?

The presence of a Pollution Exclusion clause. Signup and view all the answers

What is the primary difference between Claims Made insurance and True Occurrence insurance?

Claims Made insurance requires claims to be made while the policy is in force. Signup and view all the answers

What should be taken into account regarding differing site conditions?

They should be documented as of a specific date. Signup and view all the answers

What does EPA aim to achieve through injunctive relief in enforcement actions?

To return violators to compliance and prevent repeat violations Signup and view all the answers

What is an EMS in the context of environmental compliance?

An environmental management system that outlines the organization's principles Signup and view all the answers

Which of the following is a characteristic of Supplemental Environmental Projects (SEPs)?

SEPs can lead to a reduction in the final settlement penalty Signup and view all the answers

For which type of business are EMSs allowable as SEPs?

Small businesses Signup and view all the answers

What is a primary factor in determining appropriate settlement penalties?

The voluntary agreement to perform a SEP Signup and view all the answers

What role does the root cause of violations play in determining injunctive relief?

It guides the implementation of a systematic compliance approach Signup and view all the answers

Which of the following statements is true regarding EMSs and large businesses?

EMSs are appropriate as part of injunctive relief for large businesses Signup and view all the answers

How does EPA define the effectiveness of an EMS?

Based on the framework it provides for achieving environmental objectives Signup and view all the answers

What must case teams seek before proposing EMSs as SEPs by a large business?

Prior approval Signup and view all the answers

What is the maximum civil monetary penalty amount per day for a violation under most federal statutes?

$25,000 Signup and view all the answers

Which of the following factors does NOT affect the penalty amount imposed for non-compliance?

Total revenue of the company Signup and view all the answers

What are environmental audits a part of?

Environmental Management System process Signup and view all the answers

Which condition is NOT necessary for a company to achieve 100% reduction in gravity-based penalties?

No systematic discovery process Signup and view all the answers

What happens when an agreement cannot be reached in a consent agreement?

It proceeds to litigation Signup and view all the answers

Which act allows citizens to file a suit if a facility is in violation of a water discharge permit?

Clean Water Act (CWA) Signup and view all the answers

Which organization provides audit protocols for environmental audits?

Environmental Protection Agency (EPA) Signup and view all the answers

What is true about internal documents identifying noncompliance during audits?

They are discoverable Signup and view all the answers

Which of the following describes a consent agreement in the enforcement process?

It is submitted to the court for consideration Signup and view all the answers

What does an Environmental Management System (EMS) help an organization achieve?

Achievement of environmental goals Signup and view all the answers

Which of the following is NOT a component needed for an EMS?

Establishing communication channels Signup and view all the answers

What does the 'Check' phase of the Plan-Do-Check-Act cycle involve?

Monitoring and measuring progress Signup and view all the answers

Environmental civil liability is characterized by which of the following?

Strict liability without consideration of knowledge Signup and view all the answers

What can be a consequence of a criminal conviction under environmental law?

Reimbursement for cleanup costs Signup and view all the answers

Which of the following actions falls under cleanup enforcement?

Negotiating for voluntary cleanup Signup and view all the answers

Under the Clean Water Act (CWA), what protects compliant facilities from citations?

Permit shield Signup and view all the answers

Which of the following statements about statutory defenses against CERCLA is accurate?

Innocent landholder defense requires property usage documentation. Signup and view all the answers

What is a primary goal of implementing an effective EMS?

To enhance early detection of noncompliance Signup and view all the answers

What type of evidence is required to establish environmental criminal liability?

Evidence beyond a reasonable doubt Signup and view all the answers

Which of the following is an example of injunctive relief in civil liability cases?

Installation of pollution control equipment Signup and view all the answers

How does an EMS support legal compliance?

By providing a framework for evaluating and improving performance Signup and view all the answers

The responsibility for environmental compliance rests primarily on which group?

Corporate management Signup and view all the answers

Study Notes

Chapter 2 & 17: Enforcement and Liability, Environmental Management Systems and Environmental Law

These chapters cover enforcement and liability related to environmental law.
Environmental Management Systems (EMS) are frameworks that help organizations meet their environmental goals by consistently reviewing, evaluating, and improving their overall environmental performance.
OEH 5262 course description: This course aims to introduce students to the organizational and management principles underlying EHS (Environmental, Health, and Safety) management systems, programs, and practices.
EMS's can help when violations occur, or can be required as a result of a violation.

EMS Basic Process

Review organizational environmental goals.
Analyze environmental impacts and compliance obligations (legal and other).
Set environmental objectives and targets to minimize impacts and ensure compliance.
Establish programs and targets to meet objectives.
Monitor and assess progress toward those objectives.
Ensure employee environmental awareness and competence.
Review EMS progress and make improvements.

Plan-Do-Check-Act Cycle

Plan: Establish environmental goals and processes needed to conform to organization's policy.
Do: Execute the planned processes and procedures.
Check: Monitor and measure to ensure that environmental targets and objectives are met.
Act: Take corrective actions to continually improve the EMS.

Components Needed for an EMS

Top management leadership, participation, and policy setting
Identify environmental issues (risks) and legal requirements.
Establish objectives to successfully manage issues and requirements.
Create programs and procedures to meet objectives (who, when, how).
Train people in their roles and responsibilities.
Monitor, measure, and audit performance.
Take preventive and corrective action.

Effective EMS

Decreases the likelihood but does not guarantee avoiding non-compliance.
Increases the likelihood of early non-compliance detection.
Enables opportunities for prevention, early mitigation, and corrective action.
Could lead to more lenient enforcement responses from regulators.

Legal Liabilities

Environmental Civil Liability: Strict liability, regardless of the responsible party's knowledge of the law or intent behind a violation. A "preponderance of evidence" standard of proof.
Environmental Criminal Liability: Requires proof of intent or some level of negligence. “Beyond a reasonable doubt” standard of proof.

Results of Civil Liability

Monetary penalties
Injunctive relief (correct violation).
Installation of pollution control equipment
Additional actions to improve the environment (Supplemental Environmental Programs – SEPs)

Results of Criminal Liability

Monetary fines
Restitution (reimbursement for cleanup/harm)
Incarceration
EPA criminal enforcement

Cleanup Enforcement

Locate those responsible for contamination.
Negotiate cleanup with them
Order cleanup or have EPA perform and bill responsible party.

Statutory Defenses (Against Different Laws)

CWA: Permit shield. If in compliance with a permit, the facility cannot be cited.
CERCLA: Defenses including acts of God, acts of war, omission of a third party and innocent landholder defenses (all appropriate inquiry).

Enforcement

Violations can be enforced at federal, state, and local levels.
Administrative actions with monetary fines are possible in some cases
Criminal or civil actions by the U.S. Department of Justice or a state's attorney general.
Citizens can file lawsuits in federal court.
Enforcement typically starts with inspection to comply with environmental regulations, could include random inspections, employee/citizen complaints, or part of a national compliance initiative.
A Notice of Violation (NOV) suggests an administrative order may follow.

Settlement Agreements

Most federal actions against businesses/individuals are resolved through settlement agreements.
Injunctions, fines, and/or Supplemental Environmental Projects (SEPs) are components.

Injunctive Relief

A court order to prevent/command a specific action.

EPA's Approach to Injunctive Relief

Aim for compliance, minimize repeat violations by addressing the root causes of non-compliance. Violations include considering size/characteristics, and overall compliance obligations, to identify, understand, and manage the regulated entity's compliance with environmental regulations

Supplemental Environmental Projects (SEPs)

Voluntary projects that provide environmental or public health benefits beyond legal requirements. Factors considered in determining penalties and reductions.

Enforcement and Compliance History Online (ECHO)

Website for enforcement and compliance history.

U.S. EPA Supplemental Environmental Projects Policy

Small businesses have more latitude regarding Environmental Management Systems (EMS) as Supplemental Environmental Projects (SEPs). Larger businesses must seek approval.

Administrative Penalty Amounts

Most federal statutes use $25,000 per day per violation.
Yearly inflation adjustments for civil monetary penalties are published.

Administrative Penalty Factors

Ability to pay
Economic benefits gained from non-compliance
Gravity of the offense
Past compliance history
Gravity based penalty matrix

Environmental Audits

Audits may be part of an EMS or complete with it
Audits assess compliance in relation to established environmental guidelines (e.g. inspections)
Audits frequently require a comparison between a standard and a process

Voluntary Disclosure

Incentivizes compliance through penalties reduction or avoidance.

Voluntary Disclosure Conditions

Several conditions enable reductions in penalty amounts (up to 100%).

Legal Issues of Audits

Internal documents demonstrating non-compliance are discoverable.

When an agreement is reached between parties, a consent agreement can be offered to the court.
An agreement to be considered "final" requires a final order from a court to prevent future issues.
If no agreement can be reached, litigation with an administrative law judge follows.

Citizen Suits

Citizens can initiate lawsuits in environmental violations (CWA, CAA, RCRA).
Suits are possible when federal/state government does not act on enforcement.

Criminal Cases

Cases of environmental violations can be pursued in criminal court.

Contractual Liability

Scope of work, fixed-fee vs. time & materials, differing site conditions are common issues in contracts.

Insurance

General Liability: Covers damages, equipment, and pollution exclusions.
Professional Liability: Errors and omissions (E&O) are for actions during professional activities.
Insurance Types: Occurrence (easier to get) or Claims-made (while policy is enforced)

Indemnification Clause

A clause obligates one party to cover losses the other suffers from actions that cause harm.

Homework

No homework is assigned.

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