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Questions and Answers
What is the purpose of recovery of the economic benefit in environmental law sanctions?
What is the purpose of recovery of the economic benefit in environmental law sanctions?
To ensure the violator does not profit from the noncompliant activity.
How do regulatory agencies publicize enforcement actions related to environmental law?
How do regulatory agencies publicize enforcement actions related to environmental law?
They publish news releases and details about violations on their websites.
What types of information are included in the publicized enforcement actions by regulatory agencies?
What types of information are included in the publicized enforcement actions by regulatory agencies?
Details of alleged violations, activities to return to compliance, and applicable sanctions.
What does the EPA do to maintain awareness of enforcement accomplishments?
What does the EPA do to maintain awareness of enforcement accomplishments?
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What are the legal requirements in the context of environmental law meant to establish?
What are the legal requirements in the context of environmental law meant to establish?
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Why is it important for regulatory agencies to alert others to the risks of noncompliance?
Why is it important for regulatory agencies to alert others to the risks of noncompliance?
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What may the economic-benefit component of sanctions exceed?
What may the economic-benefit component of sanctions exceed?
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At what government levels are agencies engaged in the publication of enforcement actions?
At what government levels are agencies engaged in the publication of enforcement actions?
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What significant financial impact did companies face in 2004 due to EPA enforcement actions?
What significant financial impact did companies face in 2004 due to EPA enforcement actions?
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Which two statutes were involved in the settlements that accounted for a large portion of the cleanup costs?
Which two statutes were involved in the settlements that accounted for a large portion of the cleanup costs?
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What characterizes the majority of penalties yielded by the TSCA statute?
What characterizes the majority of penalties yielded by the TSCA statute?
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What initiative was launched by the DOJ Environmental Crimes Section in 2005?
What initiative was launched by the DOJ Environmental Crimes Section in 2005?
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What role do civil penalties play in enforcement under statutes like TSCA?
What role do civil penalties play in enforcement under statutes like TSCA?
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What should be considered when comparing enforcement between different statutes?
What should be considered when comparing enforcement between different statutes?
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How does injunctive relief factor into the assessment of penalties?
How does injunctive relief factor into the assessment of penalties?
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Which organizations collaborated with the DOJ in the 2005 initiative?
Which organizations collaborated with the DOJ in the 2005 initiative?
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What must a permitting authority require a facility to meet at a minimum?
What must a permitting authority require a facility to meet at a minimum?
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What is the typical first step a facility takes in the permitting process?
What is the typical first step a facility takes in the permitting process?
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How does the permitting process differ from private contractual negotiations?
How does the permitting process differ from private contractual negotiations?
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What does failure to comply with permit terms result in?
What does failure to comply with permit terms result in?
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What factors make it difficult for permittees to defend against enforcement?
What factors make it difficult for permittees to defend against enforcement?
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In the permitting process, who can comment on the draft permit?
In the permitting process, who can comment on the draft permit?
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What does the counter-signing of the permit imply for the permittee?
What does the counter-signing of the permit imply for the permittee?
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What advantage does the permitting authority have in the process?
What advantage does the permitting authority have in the process?
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What challenges are associated with year-to-year comparisons of EPA enforcement data?
What challenges are associated with year-to-year comparisons of EPA enforcement data?
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What did the EPA's inspector general recommend in 2005 concerning compliance tracking?
What did the EPA's inspector general recommend in 2005 concerning compliance tracking?
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According to a 2006 GAO study, how did enforcement actions vary among EPA regions?
According to a 2006 GAO study, how did enforcement actions vary among EPA regions?
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What is the main purpose of periodic monitoring for regulated entities?
What is the main purpose of periodic monitoring for regulated entities?
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What inquiries did the EPA face in early 2008 regarding its enforcement action reporting?
What inquiries did the EPA face in early 2008 regarding its enforcement action reporting?
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Why might the EPA present enforcement data in different formats?
Why might the EPA present enforcement data in different formats?
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Why must self-monitoring not be continuous for regulated entities?
Why must self-monitoring not be continuous for regulated entities?
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What is the significance of the affirmative statement required in reporting?
What is the significance of the affirmative statement required in reporting?
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What implication does the inability to effectively track compliance have?
What implication does the inability to effectively track compliance have?
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What problem related to enforcement was highlighted by the GAO in their 2006 study?
What problem related to enforcement was highlighted by the GAO in their 2006 study?
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How do certifications of accuracy or compliance affect the defense against alleged violations?
How do certifications of accuracy or compliance affect the defense against alleged violations?
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What variations exist in the scope and frequency of required monitoring and reporting?
What variations exist in the scope and frequency of required monitoring and reporting?
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What is the significance of the report on EPA’s relationship with Congress and external agencies?
What is the significance of the report on EPA’s relationship with Congress and external agencies?
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What types of enforcement remedies can agencies pursue against violations?
What types of enforcement remedies can agencies pursue against violations?
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What role do monitoring reports play for government agencies?
What role do monitoring reports play for government agencies?
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What is the consequence of cherry-picking data during self-monitoring?
What is the consequence of cherry-picking data during self-monitoring?
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What was the main legal argument presented by the defendant in the case regarding natural gas condensate?
What was the main legal argument presented by the defendant in the case regarding natural gas condensate?
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What was the outcome of the appeal made by the defendant in the Tenth Circuit?
What was the outcome of the appeal made by the defendant in the Tenth Circuit?
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What are the three circumstances under CERCLA that can absolve a party from liability?
What are the three circumstances under CERCLA that can absolve a party from liability?
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How does the classification of natural gas condensate affect its regulatory status under RCRA?
How does the classification of natural gas condensate affect its regulatory status under RCRA?
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What statutory definitions did the court interpret to reach its decision in the case?
What statutory definitions did the court interpret to reach its decision in the case?
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What is the significance of showing due care in the context of CERCLA liability?
What is the significance of showing due care in the context of CERCLA liability?
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In the context of the court's ruling, what does it mean for a material to be 'burned for energy recovery'?
In the context of the court's ruling, what does it mean for a material to be 'burned for energy recovery'?
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What implications does the court's decision have for the treatment of hazardous waste in similar cases?
What implications does the court's decision have for the treatment of hazardous waste in similar cases?
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Study Notes
Chapter 2: Enforcement and Liability
- Environmental law enforcement trends are constantly changing due to new laws, regulations, judicial decisions, and presidential administrations.
- Different presidential administrations prioritize different aspects of environmental compliance.
- The Bush administration prioritized compliance assistance, while the Obama administration focused on "the most serious water, air, and chemical hazards."
- EPA's Office of Enforcement, Compliance, and Assurance (OECA) sets multiyear national priorities (NECAP) based on noncompliance patterns and potential environmental benefits.
- OECA's goals and priorities are frequently updated.
- Enforcement efforts span various media, including GHG emission reductions, water quality standards, sewage reduction, and contaminated site cleanups.
- EPA refers cases to the Department of Justice (DOJ) for both civil and criminal actions, with a focus on repeat or chronic violators.
- Civil and criminal penalties often exceed $208.7 million annually.
- The Environmental Integrity Project criticized the Bush administration for a decline in environmental enforcement actions.
- Methods of enforcement include settlements, injunctive relief or supplemental environmental projects (SEPs).
- EPA's enforcement efforts involve collaboration with OSHA in efforts to increase the ability to inspect facilities.
- Enforcement remedies include both civil and criminal actions.
- A significant facet of environmental enforcement is the monitoring of compliance, which relies on regular reports and inspections by regulatory agencies.
- There are a variety of available remedies in environmental law, such as civil penalties and injunctions.
- Legal interpretations on environmental enforcement are complex and vary depending on context, leading to enforcement decisions with potential broad impacts.
3.1 Enforcement Purposes
- Environmental laws aim to protect human health and the environment by preventing or minimizing negative impacts from violations.
- These laws aim to secure a prompt return to compliance.
- A secondary purpose is deterring further violations and enforcing appropriate penalties to those who fail to comply.
- Enforcement activities also aim to prevent regulated parties from benefiting economically from noncompliance.
3.2 Applicable Law
- Environmental laws derive from statutes, regulations, permits, licenses, and administrative orders.
- Applicable laws can be complex and multifaceted encompassing both federal and state levels.
- Legal interpretations, policies, and procedures related to environmental enforcement are constantly evolving.
- Oversight and enforcement can be undertaken by different agencies at both federal and state levels.
3.3 Compliance Monitoring
- Agencies monitor compliance to reveal apparent violations in environmental laws.
- Mechanisms for monitoring include inspections of regulated facilities and requesting information from regulated parties.
3.4 Enforcement Remedies
- Environmental enforcement remedies include both civil and criminal actions.
- Criminal actions are usually reserved for significant offenses or repeated violations and involve potential imprisonment.
- Civil actions commonly result in fines or injunctions.
- Environmental violations can be complex and involve intentional or unintentional conduct.
- Specific intent and general intent, and the knowledge of the violation are key elements in criminal prosecutions.
- Statutory defenses, such as “upset” or “bypass,” may mitigate criminal liability.
4.0 Civil Enforcement and Liability
- Civil enforcement under environmental statutes typically invokes "strict liability."
- Strict liability means the regulated party is responsible regardless of intent, negligence, or knowledge.
- Statutory defenses can be available under certain circumstances
- Enforcement activities may involve negotiations, settlements, and litigation
- Some statutes allow citizen suits to enforce environmental laws.
4.5 Agreed-Upon Principles of Enforcement and Defense
- Consent orders are an example of agreed-upon standards.
- These orders establish legal agreements between regulated parties and enforcement agencies.
- Permits are also a key aspect of agreed-upon compliance standards.
- Permits outline specific conditions for regulated activities and violations against the permit terms are deemed noncompliance.
5.0 Private Civil Enforcement by Citizen Suits
- Citizens can bring civil actions against regulated entities or enforcement authorities to ensure compliance.
- Required prerequisites for a citizen suit typically involve notice and are subject to some constraints.
6.0 Criminal Enforcement and Liability
- Criminal enforcement is used in cases involving significant violations of environmental regulations.
- Criminal enforcement actions require proof of a specific intent or knowledge for criminal violations.
- In criminal cases, the “mens rea” or mental state element is crucial.
- Public welfare offenses, for instance, can involve no intent requirement, making them easier to enforce.
7.0 Avoidance and Mitigation of Environmental Enforcement and Liability
- Environmental legal compliance is complex.
- Companies create audit programs to assess compliance.
- Auditing and improvements through auditing are essential aspects of environmental enforcement risk management.
- Understanding liability in acquisitions, mergers, and divestitures enables greater company transparency.
- Private agreements regarding environmental liability reallocate responsibility between parties.
8.0 New Trends in Enforcement and Liability
- The SEC's involvement in the growing scope of environmental enforcement is increasing.
- Financial accounting standards have adapted to consider loss contingencies in the context of environmental liabilities.
- Natural Resource Damages occur when public resources are harmed by environmental accidents and entail significant costs to restoration.
9,0 Final Thoughts
- Environmental enforcement is not static but cyclic, responding to regulatory changes, court cases, and societal concerns.
- Scientific advancement can impact enforcement decisions and legal measures.
- Agency discretion is a factor in environmental enforcement.
- International and cross-border issues in environmental law are increasingly complex.
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