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**Restatement (Second) of Torts - Private Nuisance** [- § 821D] **-** A ***private nuisance*** is a non-trespassory invasion of another\'s interest in the private use and enjoyment of land[.§ 822. General Rule] **-** One is subject to **liability** for a *private nuisance* if his conduct is a legal...

**Restatement (Second) of Torts - Private Nuisance** [- § 821D] **-** A ***private nuisance*** is a non-trespassory invasion of another\'s interest in the private use and enjoyment of land[.§ 822. General Rule] **-** One is subject to **liability** for a *private nuisance* if his conduct is a legal cause of an invasion of another\'s interest in the private use and enjoyment of land, and the invasion is either(a) **intentional** and **unreasonable**, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities, or strict liability on those engaging in abnormally dangerous activities [§ 825] **1 Intentional Invasion -** "Intention does not mean purpose." is [intentional] if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. [§ 826.] **2 Unreasonableness Of Intentional Invasion ("Balancing")** - if (a) the gravity of the harm outweighs the utility of the actor\'s conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. [§ 827.] **Gravity Of Harm\--Factors Involved** (a) The extent of the harm involved; (b) the character of the harm involved; (c) the social value that the law attaches to the type of use or enjoyment invaded; (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and (e) the burden on the person harmed of avoiding the harm[.§ 828]**. Utility Of Conduct\--Factors Involved** - (a) the social value that the law attaches to the primary purpose of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion. [§ 829] **-- unreasonable if harm is greater than P should be required to bear without compensation. CASES** **Madison v. Ducktown Sulphur -** copper smelter creates harmful emissions - Ct decides remedy via balancing - damages instead of injunction**. McKiver v. Murphy-Brown LLC -** Nuisance from odor, pests, and noises related to hog CAFO - The operations, "substantially" and "unreasonably" interfered with the community's enjoyment of their land. Damages. **Restatement (Second) of Torts - § 821B Public Nuisance** - A public [nuisance](https://matthewminer.name/law/outlines/1L/1st+Semester/LAW+511-002+%E2%80%93+Torts+I/Nuisance) is an **1 unreasonable interference** with a right common to the general public, such as a significant interference with the public health, the public safety, whether the conduct is proscribed by a statute, ordinance or administrative regulation, or whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. **Balancing can be used to determine unreasonableness**. [§ 840E] **Others Contributing to the Nuisance** Except as it may affect the character of the locality, the fact that other persons contribute to a nuisance is not a bar to the defendant\'s liability for his own contribution. (this rule applies to both public and private nuisances). **CASES** - **Missouri v. Illinois (causation, reverse golden rule)** -- MO sues IL for dumping sewage - Causation issue (must demonstrate nuisance directly caused the injury). MO was also putting their own sewage in the water. This raises the causal bar. Ct declines to grant relief. **Georgia v. Tennessee Copper Co. (remedy selection)** -- GA sued TN for noxious gas from TN State's copper company. GA got injunctive relief. injunction available when you have the quasi-sovereign right of a state. Cited regularly in climate nuisance cases. **International Paper Co. v. Ouellette (common law v. statutes) --** states can adopt more stringent standards (common law & statutory law) if they want; common law causes of action have been deemed to be not preempted to the extent that the plaintiffs apply the law of the source state. CWA preempts common law actions brought in another state. **American Electric Power Co. v. Connecticut** - πs sue energy companies and ask for emissions reductions (fed climate nuisance). Ct \> Clean Air Act displaced federal common-law right to seek abatement of out-of-state carbon-dioxide emissions from fossil-fuel fired power plants. Displacement happens when authority is delegated to agency (here EPA). **Standing:** The plaintiff must have suffered an **1** **\"injury in fact**,\" meaning that the injury is of a legally protected interest which is **2 (a) concrete and particularized and 3 (b) actual or imminent**. There must be a **4 causal connection** between the injury and the conduct brought before the court. It must be likely, rather than speculative, that a favorable decision by the court will **5** redress the injury. **Massachusetts v. EPA (standing established)** - The State of Massachusetts is suing EPA for denial of their rulemaking petition in connection to regulation of greenhouse gases. Massachusetts, due to its \"stake in protecting its quasi-sovereign interests\" as a state, had standing to sue the EPA over potential damage caused to its territory by global warming. Injury: Loss of coastline. Causation: EPA not making a rule is contributing to injury. Redressability: regulating motor-vehicle emissions can help to reduce it. OSHA: sets standards for workplace safety, the regulations they set must be reasonably necessary and appropriate to remedy a significant risk of material health impairment in the workplace. **Informal Rulemaking process in theory:** Congress (passes law but can't spell out details of implementation) -- President (Signs law & delegates to agency to implement) -- Agency (promulgates regulation, APA for informal rulemaking requires public notice, comment period, and publication in fed reg) Precautionary Principle (Ethyl -- when a statute is precautionary in nature to protect public health + evidence uncertain, rigorous cause and effect not needed): The greater the potential harm, the more likely it is that public policy will take precautions to avoid it even in the face of considerable scientific uncertainty. a federal agency must make some threshold finding about a toxic substance before regulation is appropriate (Reserve Mining), Industrial Union -- OSHA has burden of proving through best evidence that current level contamination in workplace is unsafe, Michigan -- CAA must consider costs before deciding whether a regulation is appropriate and necessary **Toxic Substances Control Act (TSCA)(pesticides not included) New TSCA --** EPA is required to review the safety of all existing chemicals in active commerce in the US and to regulate them as necessary to prevent unreasonable risk. [Sec. 4] authorizes the EPA administrator to **require the testing** of any chemical substance or mixture on finding that such testing is **necessary** because there are **insufficient data** from which the chemical's effects can be predicted and the chemical either "may present an **unreasonable risk** of injury to **health** or the **environment**" or the chemical is produced in substantial quantities or may result in substantial **human exposure**. Agency can issue unilateral orders requiring "the development of new information relating to a chemical substance if the Administrator determines that the information is necessary." [Sec. 5] - **prohibits** any person from **manufacturing** any **new chemical** substance or from processing any existing chemical substance for a significant **new use** **unless** **1** the person **notifies** the **EPA** administrator at least 90 days in advance and **submits** any **data** that the person believes show that the chemical will not present an unreasonable risk. **Before** the new chemical can be marketed or significant new use can be made **EPA** **must** make an **2** **affirmative risk determination** concerning the chemical. The EPA administrator may **3** prohibit or limit the manufacturing, processing, distribution, use, or disposal of any chemical if he determines that the information is insufficient to permit a reasoned evaluation of the effects of the chemical and that it either may present an unreasonable risk or that it may result in significant human exposure. [Sec. 6] - requires the EPA administrator to **prohibit** the manufacture, processing, or distribution in commerce of a chemical substance; to limit the amounts, concentrations, or uses of it; to require labeling or record-keeping concerning it; or to prohibit or otherwise regulate any manner or method of disposal of it, **upon a finding** that the chemical "**presents or will present an unreasonable risk of injury to health or the environment**." The Lautenberg Act specifies that the administrator's risk evaluation is to be made "**without consideration of costs** or other nonrisk factors." **Safe Drinking Water Act (SDWA)** [- Section 300g-1] requires **EPA** to **promulgate** national drinking water regulations **(Maximum contaminant level goal (MCTLG) and Maximum Contaminant Level (MCL))** for public water systems. **1** Regulations are to be issued for each contaminant that may have any adverse effect on health and that is known or anticipated to occur in such systems. **2** **MCLGs** are to be **set** "at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." **3** **MCLs** are to be **set** as close to the MCLGs "as is feasible," **unless** after **weighing** the "quantifiable and nonquantifiable costs and benefits," the EPA determines that the benefits of that level would **not justify the costs**, in which case the **MCL** is to be **set** to "maximize health risk reduction benefits at a cost that is justified by the benefits." [Section 300g-3] requires **EPA** to **notify** **states** of **violations** of national primary drinking water **regulations** **and** to take **enforcement** action against public water systems if the **states fail** to do so. **Owners or operators** of public water systems are required to **notify customers** of **violations**. [Section 300g-6:] **Prohibits** the use of **lead** in pipes, solder, or flux in public water systems and plumbing connected to systems providing water for human consumption. **CASES** **American Water Works Association v. EPA** - EPA set MCLG at 0 for lead, but then decided not to set MCL bc public water systems would be responsible & congress didn't foresee this. Environmental groups sued for MCL. They disagreed about meaning of feasible. EPA's interpretation of the term "feasible" so as to require **a treatment technique** instead of an MCL for lead is **reasonable if it is infeasible to determine the level of a particular contaminant**. Problems with emerging contaminants is that if something does not fall in the scope of the regulation then not protected against it **(PFAS)**. **Clean Water Act (CWA)** [- §101] Goals: declares national **goals of fishable/swimmable** **waters** by 1983 and the **elimination of pollutant discharges into navigable waters** by 1985. [§301] Effluent Limitations: **prohibits "the discharge of any pollutant"** (defined in §502(12) as the addition of any pollutant to **navigable waters** from any **point source** or to the waters of the ocean or contiguous zone from any point source other than a vessel) **except** those made in compliance with the terms of the Act, including the **permit** requirements of section 402. Imposes multi-tiered effluent limitations on existing sources whose stringency and timing depends on the nature of the pollutant discharged and whether the out-fall is directed to a water body or a publicly owned treatment works (POTW). [Sec. 502- (6)] The term **"pollutant" means** dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge. (7) The **term "navigable waters"** means the waters of the United States, including the territorial seas.(12) The **term "discharge of a pollutant"** means any addition of any pollutant to navigable waters from any point source.... (14) The term **"point source"** means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, from which pollutants are or may be discharged. This term **does not include** agricultural stormwater discharges and return flows from irrigated agriculture. [§302] **Water Quality Related Effluent Limitations**: **authorizes** the **imposition** of more **stringent** effluent limitations when **necessary** to **prevent** interference with the **attainment** or maintenance of desired water **quality**. [§303] **Water Quality Standards & (TMDLs)**: requires **states** and tribes to **adopt** and to review triennially **water quality** criteria and **standards** subject to EPA approval, to identify waters where effluent limits are **insufficient** to achieve such standards, and to **establish** total maximum daily loads **(TMDLs -- total max amount of a pollutant that can be discharged in a water segment without violating WQS)** of pollutants for such waters.[§304] **Federal Water Quality Criteria and Guidelines**: requires EPA to adopt water quality criteria and guidelines for effluent limitations, pretreatment programs, and administration of the NPDES permit program. [§306] **New Source Performance Standards**: requires EPA to promulgate new source performance standards reflecting **best demonstrated control technology**. [§307] **(Those who discharge to POTWs don't need a NPDES permit)** **Toxic and Pretreatment Effluent Standards: requires dischargers** of **toxic** pollutants to meet **effluent limits** reflecting the **best available technology economically achievable**. Requires EPA to establish pretreatment standards to prevent discharges from interfering with POTWs. [§319] **Nonpoint Source Management Programs**: requires **states** and tribes to **identify** waters that cannot meet water quality standards **due** to **nonpoint sources**, identify the activities responsible for the problem, and **prepare management** plans identifying controls and programs for specific sources. [§401] **State Water Quality Certification**: **requires applicants** for federal licenses or permits that may result in a discharge into navigable water to obtain a **certification** from the **state** in which the discharge will occur that it will comply with various provisions of the Act. [§402] **NPDES Permit Program**: establishes a national permit program, the **national pollution discharge elimination system (NPDES),** that may be administered by EPA or by states. May issue a permit for the **discharge of any pollutant**. -- Holders must comply with **technology-based standards**. [§404] **Dredge and Fill Operations**: requires a permit from the **Army Corps of Engineers** for the disposal of **dredged or fill** material into **navigable waters** with the concurrence of EPA unless associated with "normal" farming. The section 404 Permit Process **Must demonstrate** that: there is **no "practicable alternative** to the proposed discharge" which would be less damaging to the aquatic environment, the proposed activity **will not "cause** or contribute to significant **degradation** of the **waters** of the United States," "**appropriate** and practicable **steps** have been taken which will **minimize** potential adverse **impacts** of the discharge on the aquatic ecosystem," and the proposed discharge will **not violate** state **water** quality **standards**, toxic effluent standards, the Endangered Species Act or regulations to protect marine sanctuaries under the Marine Mammal Protection Act. [§ 405] requires EPA to develop **standards** for disposal of sewage sludge to be implemented through the NPDES permits issued to **POTWs**. EXPL. **National Pollutant Discharge Elimination System (NPDES)** - permit program addresses water pollution by regulating point sources that discharge pollutants to waters of the United States. **Technology-based standards:** Technology-based effluent limits - Minimum standard for each industrial category: BPT (best practicable control technology currently available). Conventional (traditional) pollutants: BCT (best conventional pollution control technology). Toxic and nonconventional pollutants: BAT (best available technology economically achievable). New sources: NSPS = BACT (best available demonstrated control technology)(PSES for existing source into POTWs for nonconventional and toxic pollutants, PSNS is for new sources, same pollutants). **Any waters within the state that wouldn't be able to meet the required WQS under the effluent NPDES permit must have a TMDL.** If the EPA does not approve the state's TMDL or water designations, then the EPA will create TMDLs for the state. **Individual control strategies** for toxic pollutants: **States** must compile **lists** of water segments that **don't meet WQS** because of toxic pollutants AND lists of all **point sources** discharges of toxics contributing to the impairment. **Individual control strategies** must then be **developed** for those point source toxic discharges and incorporated into the NPDES. CASES **United States v. Riverside Bayview Homes, Inc. (significant nexus)** -- wanted to fill wetland to build development. Wetlands adjacent to/abuts a navigable water are in! (covered by CWA) **SWANCC v. U.S. Army Corps of Engineers** -- Small, intrastate, old gravel pits. Solid waste agency wants to fill these and convert it to landfill. Army corps wants them to get 404 permit, they're saying they don't need one. Non-navigable waters are not covered by CWA. WOTUS regulatory definition has Migratory bird rule in preamble. Ct \> Migratory Bird Rule," exceeds the authority granted to respondents under §404(a) of the CW(Note: WOTUS includes intrastate waters that the destruction or degradation of which could affect interstate commerce)**.** **Sackett v. EPA** - Petitioners purchased property in Idaho and backfilled the lot with dirt to build a home - A **wetland (wetlands that are seasonal or temporary interruptions still qualify) must** have a **continuous surface connection** to a relatively permanent **body** of water connected to traditional **interstate** navigable waters and the surface connection must make it **difficult** to **determine** where the water ends and the wetland begins. **County of Maui v. Hawaii Wildlife Fund** - Petitioner County of Maui\'s **wastewater** reclamation facility collects sewage from the surrounding area, partially treats it, and pumps treated water into the ground through four wells - effluent travels through **groundwater** to the Pacific Ocean- CT \> permitting requirement, §301, applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional **equivalent** of a direct discharge from the point source into navigable waters. **National Mining Ass'n v. Army Corps of Engineers** (**If something is destroying wetland)** -- challenge to regulation that said discharge of dredge material included incidental fallback. Redeposit (regulable, need 404) v incidental fallback (not regulable). **Incidental fallback** is not an addition, so it can't be a discharge of a pollutant and it **can't** be **regulated** under CWA. **United States v. Plaza Health Laboratories, Inc.** -- A person can't be a point source when applying criminal provision. **Los Angeles County Flood Control District v. NRDC** - Petitioner was operating a "municipal separate storm sewer system" (MS4), a drainage system that collects, transports, and discharges storm water. Ct \> the **flow** of **water** from an improved **portion** of a navigable waterway into an **unimproved portion** of the very **same** waterway **does not** qualify as a **discharge** of pollutants under the CWA. Note: one WOTUS to another is okay if no intermediary use or new pollutant. **Arkansas v. Oklahoma** - Ok argued against permitting discharges from an Arkansas wastewater treatment plant that had a permit from EPA, and they would degrade the upper Illinois River\'s water quality in Oklahoma. Ct. \> **EPA** regulations require an **NPDES** permit to **comply** "with the applicable water quality requirements of **all** affected **States**." 40 CFR §122.4(d) (1991). This regulation effectively incorporates into federal law those state law standards the Agency reasonably determines to be applicable**. PUD No. 1 of Jefferson County v. Washington Department of Ecology** - The project involved diverting water from a portion of the river, running it through turbines to generate electricity, and returning the water to the river. - The state ecology department issued a 401 water quality certification **imposing** on the project **conditions** that included a minimum stream flow requirement -- CT \> **State may** include minimum stream flow **requirements** in a certification issued pursuant to §401 insofar as **necessary** to enforce a designated use contained in a state water quality **standard**. **American Farm Bureau Federation v. U.S.** - The Environmental Protection Agency ("EPA") published in 2010 the "total maximum daily load" ("TMDL") of nitrogen, phosphorous, and sediment that can be released into the Chesapeake Bay - Because **TMDLs** only relate to bodies of water for which point source limitations are insufficient, they must consider **pollution** from **both point and nonpoint sources. Endangered Species Act -** [Section 3: Definitions §3(6)] defines **"endangered species"** as "any species which is in **danger of extinction** throughout all or a significant portion of its range." [§3(20)] defines **"threatened species"** as "any **species** which is **likely** to **become** an **endangered** species within the foreseeable future throughout all or a significant portion of its range." [Section 4: Listing Endangered and Threatened Species §4(a)] requires the **secretary** to **determine** whether any **species is "endangered" or "threatened"** and to designate **critical habitat** of such species. [§4(b)] provides that the **listing** determination is to be **based solely** on "**best scientific and commercial data available**" and that the designation of **critical habitat** is to be based on the "**best scientific data available**... taking into consideration the **economic impact**, and any other relevant impact, of specifying any particular area as critical habitat." [§4(b)(3)] provides that **citizens** may **petition** to **force listing** determination. [§4(c)] requires the **secretary** to **publish** in the Federal Register a **list** of all endangered and threatened species and to **review** the list every **five years** to determine whether any species should be removed from the list or changed in status. [Section 7: Review of Federal Actions §7(a)(1)] requires all federal agencies to carry out programs to conserve endangered and threatened species**.** [§7(a)(2**)**] **federal agencies** must ensure that their **actions** are "**not likely to jeopardize** the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of such species' critical habitat. [§7(c)] **requires** federal agencies to conduct a **biological assessment** of any **endangered or threatened** species likely to be affected by an **agency action** if the secretary advises the agency that such species may be present in the area of the proposed action. [§§7(e)-(h)] provide that if action is barred by a "jeopardy" determination, its proponent may seek exemption from the Cabinet-level **"Endangered Species Committee."** [Section 9: Prohibitions §9(a)] **prohibits sale, import, export, or transport of any species listed as endangered**. [§§9(a)(1)(B) & (C)] make it **unlawful to "take"** (broadly defined by section 3(19) to cover harassing, harming, killing, capturing, or collecting) **any endangered** animal species. Section 10 Permit incidental taking: must submit a habitat conservation plan to be considered by EPA. CASES **TVA v. Hill** - The case involved the Tennessee Valley Authority\'s controversial construction of the Tellico Dam, which temporarily halted due to environmental concerns - Ct \> the plain language, legislative history, and structure of the Endangered Species Act made it clear that Congress intended to prioritize the **protection** of **endangered** species - **could not** be **overridden** based on a utilitarian **balancing of costs** and benefits or the value of the project. **Weyerhaeuser Co v. USFWA (Fish and Wildlife Service)** - A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat -- Ct. \> even if endangered species doesn't live in a spot rn (**unoccupied area**), it can still be designated critical habitat provided that the sec finds it **essential** to the **conservation** of the **species**. [84 Fed. Reg. 45,020 (2019)] - **areas** outside of the current range of a species should **only** be designated as **critical habitat** if it is first determined that the areas currently occupied by the species are i**nsufficient** to provide for the **conservation** of the species. **Thomas v. Peterson** - Forest Service **failed to comply** with **ESA procedure**. If an agency fails to require with procedure, it's grounds for injunctive relief -- **they have to go back and do this** **(1)** An agency proposing to take an action must inquire of the Fish & Wild- life Service (F & WS) whether any threatened or endangered species "may be present" in the area of the proposed action. See 16 U.S.C. §1536(c)(1). **(2)** If the answer is affirmative, the agency must prepare a **"biological assessment"** to determine whether such species "is likely to be affected" by the action. The biological assessment may be part of an EIS or EA. **(3)** If the assessment determines that a threatened or endangered species "**is likely to be affected**," the agency must formally **4 consult** with the **F & WS**. Id. §1536(a)(2). The formal consultation results in a **5** "**biological opinion**" issued by the F & WS. See id. §1536(b). If the biological opinion concludes that the proposed action would **jeopardize** the species or destroy or adversely modify critical habitat, see id. §1536(a)(2), then the action **may not go forward** unless the F & WS can suggest an **alternative** that avoids such jeopardization, destruction, or adverse modification. Id. §1536(b)(3)(A). If the opinion concludes that the action will not violate the Act, the F & WS may still require measures to minimize its impact. **Babbitt v. Sweet Home** - challenge the statutory validity of the Secretary's regulation defining "harm - The Court upheld the Secretary of Interior's definition of "harm" prohibited by section 9 as including "significant habitat modification or degradation where it actually kills or injures wildlife. **Resource Conservation and Recovery Act (RCRA)** [Subtitle C: Hazardous Waste Management (§§3001-3020) §3001:] **1** **Identification and Listing of Hazardous Waste:** requires **EPA** to **develop** criteria for determining what is a **hazardous waste** and to **list** wastes determined to be hazardous. [§3002:]  **2** **Regulation of Generators of Hazardous Waste**: requires **EPA** to **establish** recordkeeping requirements and a manifest system to be used to track shipments of hazardous waste from **point of generation**. [§3003:] **2**  **Regulation of Transporters of Hazardous Waste**: requires transporters of hazardous waste to **use the manifest system**. [§3004:] **3** **Regulation of Facilities that Treat, Store, or Dispose of Hazardous Waste (TSDs):** requires **EPA** to set **standards** for **TSDs** to ensure safe handling of hazardous waste, sets minimum requirements for such standards, **prohibits** the land **disposal** of untreated wastes **unless** **EPA** specifically **determines** that such disposal is protective of human health and the environment, establishes minimum technology requirements for certain facilities, and requires corrective action for all releases of hazardous wastes or constituents. **§3005:**  **Permit Requirements for TSDs**: requires TSDs to obtain a permit from EPA or states that incorporate the requirements of section 3004. **§7002:**  authorizes citizen suits. **§7003:**  authorizes **suits** by **EPA** to **restrain** anyone who has contributed or is contributing to the past or present handling of any **solid or hazardous waste** that may present an imminent and substantial **endangerment** to health or the environment. [Section 1004(27)] - defines **"solid waste" as including "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, semi- solid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities." 42 U.S.C. §6903(27). [section 1004(5)] **defines Hazardous waste" as (a) solid waste**, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious **characteristics may** --- (A) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. EPA established **two** principal avenues for **solid waste** to be deemed **"hazardous"**: by exhibiting one of **four** hazardous **characteristics** ("characteristic wastes") (Ignitability, Corrosivity, Reactivity, Toxicity) **or** by being **listed** as a hazardous waste in EPA's regulations ("listed wastes["). 40 C.F.R. § 261.10] - (a) The **Administrator** shall identify and define a characteristic of hazardous waste in Subpart C only **upon determining** that:(2) The **characteristic can be**:(i) **Measured** by an available standardized test method which is reasonably within the capability of generators of solid waste or private sector laboratories that are available to serve generators of solid waste; or (ii) **Reasonably detected** by generators of solid waste through their knowledge of their waste. 40 C.F.R. § 262.11 - \[**T\]he generator must determine** whether the waste is **identified** in subpart C of 40 CFR part 261 by either: (1) **Testing** the waste according to the methods set forth in Subpart C of 40 CFR part 261, or according to an equivalent **method approved** by the **Administrator** under [40 CFR 260.21](http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000547&DocName=40CFRS260%2E21&FindType=VP&AP=&fn=_top&rs=WLW8.02&mt=LawSchoolPractitioner&vr=2.0&sv=Split); or (2) **EPA two important rules**: The **mixture rule** provides that any mixture of a listed waste with another solid waste is itself considered to be a hazardous waste. The **derived-from rule** provides that wastes derived from the treatment, storage, or disposal of a listed waste (such as the ash residue from incineration of a listed waste) are deemed to be hazardous wastes. **Characteristic wastes are not subject to the mixture or derived-from rules**. Section 3001(i), 42 U.S.C. §6921(i), entitled **"Clarification of household waste exclusion**," provides: A resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subchapter, if --- (1) such facility --- (A) receives and burns only --- (i) household waste (from single and multiple dwellings, hotels, motels and other residential sources), and (ii) solid waste from commercial or industrial sources that does not contain hazardous waste identified or listed under this section, and (B) does not accept hazardous wastes identified or listed under this section, and (2) the owner or operator of such facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility. Generator Controlled exclusion: recyclable materials are excluded if they are legitimately recycled under control of the generator. Transfer based exclusion: Recyclable materials are excluded if they are legitimately recycled after transfer to a 3^rd^ party CASES **American Mining Congress v. EPA** - mining and petroleum industries argued that EPA's jurisdiction under RCRA could not extend to materials that eventually would be reused because such materials were not wastes. - Ct \> Congress clearly and unambiguously expressed its intent that "solid waste" (and therefore EPA's regulatory authority) be limited to materials that are "discarded" by virtue of being disposed of, abandoned, or thrown away. By **regulating in-process** secondary materials, **EPA** has acted in **contravention** of Congress' intent. **City of Chicago v. Environmental Defense Fund** -- CT \> If a municipal waste incinerator burns anything other than household waste, or solid nonhazardous waste from commercial or industrial sources, its ash will be treated as hazardous if it meets a hazardous waste definition. **Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)** [§103.] **Notification Requirements:** requires reporting of releases of **1** hazardous substances to the National Response Center. [§106.] **Abatement Orders:** authorizes issuance of administrative orders requiring the abatement of actual or potential releases that may create imminent and substantial endangerment to health, welfare, or the environment and to issue such orders as may be necessary to protect public health and welfare and the environment. **Any person** who **fails** without sufficient cause to properly **provide removal** or remedial action pursuant to a §106 order can **be held liable** under **§107(c)** for punitive damages in an amount at least equal to, and not more than three times, the amount of costs incurred by the Fund as a result of the failure to take proper action. [§107] ** Liability:** imposes liability on (1) **current owners** and operators of facilities where hazardous substances are released or threatened to be released, (2) **owners and operators** of facilities **at the time** substances were disposed, (3) persons **who arranged** for disposal or treatment of such substances, and (4) persons **who accepted** such substances **for transport** for disposal or treatment. (must have played a role in selecting transporting site, can be liable for moving substances to another uncontaminated part on site). These parties are liable for: (a) **all costs of removal** or remedial action incurred by the federal government not inconsistent with the NCP, (b) **any other** necessary costs of response incurred by any person consistent with the NCP, (c) **damages** for injury to natural resources, and (d) costs of health assessments. Creates **3** **exemptions for innocent purchasers, bona fide prospective purchasers, and de micromis contributors**. **Innocent Purchaser Defense** [-] to make it available to innocent purchasers of contaminated property who can establish **(1) they did not have actual or constructive knowledge** of the presence of hazardous substances at the time the land was acquired, (2) they are government entities acquiring the property through involuntary transfer, or (3) they acquired the land by inheritance or bequest - purchaser "must **have undertaken** at the time of acquisition, all appropriate **inquiry** into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. Including consulting an environmental professional" **Protection of Bona Fide Prospective Purchasers**[.] someone who does all appropriate inquiry, discovers there is contamination, but purchases the site anyway. Disposal occurred prior to acquisition; **All appropriate inquiry**; \"appropriate care" inc. \"reasonable steps\" to stop continuing releases; prevent threatened future releases; prevent or limit exposure to previously released hazardous substances; full cooperation and access to the facility; **De Micromis liability exception**: (1) the party must be an **arranger or transporter**; (2) the total amount of the party's material containing hazardous substances is **less than 110 gallons** of liquid materials or less than 200 pounds of solid materials. not potentially liable for response costs at the facility or \"affiliated\" with any such. §111. **Superfund:** creates a Superfund which can be used to finance governmental response actions and to reimburse private parties for costs incurred in carrying out the National Contingency Plan. [§121.] **(Remedies)** §**107(a) (B) (found in Atlantic Research case)** permits **cost recovery** (as distinct from contribution) by a private party that has itself incurred cleanup costs. (**joint and several liability**[)]. **§ 113(f) (1) (found in Atlantic Research case) -** Any person may seek **contribution** from any other person who is liable or potentially liable under section 9607(a) of this title, **during or following any civil action** under section 9606 of this title or under section 9607(a) of this title. (**Several equitable apportionments**).**Section 122(g)**-prompt settlements between the government and PRPs that contributed small amounts of substances whose toxic or other hazardous effects are minimal in comparison with the contributions of others. UCFA: Proportionate share approach; burden on cts to determine shares; protects late-arriving PRPs from bad bargains (total portion being divvied up -- what was the % responsibility of prior settling party) UCATA: Pro tanto approach; easier for cts to administer; late arriving PRPs take the risk of bad prior settlements (total portion being divvied up -- amount of prior settlements \* proportionate liability). **CASES. (Strict liability) New York v. Shore Realty Corp.** - State of New York brought suit against Shore Realty Corp. ("Shore") and Donald LeoGrande - At the time of the acquisition, LeoGrande knew that hazardous waste was stored on the site and that cleanup would be expensive -- didn't participate in the generation or transportation -- section 107(a)(1) unequivocally **imposes** **strict liability** on the **current owner** of a facility from which there is a release or threat of release, without regard to causation. **United States v. Bestfoods** - parent corporation that actively participated in, and exercised control over, the operations of a subsidiary may, without more, be held liable as an operator of a polluting facility owned or operated by the subsidiary - We answer no, unless the corporate veil may be pierced. But a **corporate parent** that actively participated in, and **exercised control over**, the operations of the facility itself may be held **directly liable** in its own right as an operator of the facility. **Burlington Northern & Santa Fe Railway Co. v. United States** - Shell sold D-D to B&B, and the product was shipped to B&B by common carrier, resulting in transfers with leaks and spills. Shell knew that these spills were common and took steps to encourage safety improvements among its distributors. **Knowledge alone is insufficient** to **prove** that an entity \"**planned for**\" the disposal of hazardous substances. Shell's knowledge of minor, accidental spills at the site was insufficient to establish that Shell arranged for the disposal of hazardous substances within the meaning of CERCLA. **Burlington Northern & Santa Fe Railway Co. v. United States** - Govt brought recovery action against a nearby railroad who leased a piece of their property to pesticide facility. They're considered owner at time of disposal/current owner, even though they weren't an operator. SCOTUS permits reliance on volumetric approximation (based on size of property, years of ownership/duration of the lease, etc) for "owner". **Apportionment of cleanup costs, rather than joint and several liability**, is appropriate when there is a reasonable basis for determining the contribution of each cause to a single harm. Not jointly and severally liable, only liable for 9% of costs. **Atlantic Richfield Company v. Christian** - **landowners** who qualify as potentially responsible parties under CERCLA\'s section 122(e)(6) **must obtain EPA approval** for their **remediation plan in order to receive compensation for remedial action**. They can potentially still recover under common law (nuisance, trespass). **United States v. Vertac Chemical Corp.** (legal analysis of apportionment; how do you know what percentage to assign PRPs) -- 113(f) action between PRPs. The ct is using equitable factors to establish responsibility:(1)ability of parties to demonstrate that their contribution to a discharge, release, or disposal of hazardous waste can be distinguished; (2)amount of hazardous waste involved; (3)degree of toxicity of the hazardous waste; (4)degree of involvement of the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (5)degree of care exercised by the parties of the hazardous waste; and (6) degree of cooperation by the parties with Federal, State, or local officials to prevent any harm. Allocating Orphan Shares. PRPs who have gone out of business, been declared insolvent, or cannot be located leave behind "orphan shares" of liability. Superfund liability is joint and several, so that any or all of the remaining PRPs can be held liable for 100 percent of response costs, **including the orphan shares**. **Clean Air Act** [TITLE I Section 108] requires **EPA** to **identify** **"air pollutants"** anticipated to **endanger** public health or welfare and to publish air quality criteria. [Section 109] requires **EPA** to **adopt** nationally uniform ambient air quality standards **(NAAQSs)** for criteria air pollutants. (must be based on most recent scientific knowledge, at a level requisite to prevent adverse health effects (need not be conclusive, sufficient is fine)). [Section 110] requires **states** to **develop** and submit to EPA for approval **state implementation plans (SIPs)** specifying measures to assure that air quality within each state **meets** the **NAAQSs**. (If not adequate, EPA prepared a fed implementation plan (FIP)) [§110(a)(2)(D)(i)] **(good neighbor provision)**: **SIP** has to **prevent** emissions that "contribute significantly to nonattainment in, or **interfere** with maintenance by, any **other State** with respect to any such national primary or secondary ambient air quality standard." [Section 111] - requires EPA to establish nationally uniform, technology-based standards for **major** **new stationary sources** of air pollution --- **New Source Performance Standards (NSPSs)** - dictate the level of pollution that a new stationary source may produce/regulate sources of "air pollution which may reasonably be anticipated to endanger public health or welfare. - [**New or modified sources in identified industry categories** + **Best system of emission reduction (BSER)**.] [Section 112]. [Section 116] of the Act expressly preserves the authority of **states** to **adopt** emissions **standards** that are **stricter** than the national standards. [Part C (Sections 160-169A)] specifies requirements to prevent significant deterioration of air quality **(PSD) -- Note: PSD Increments: the amount of pollution that can be increased within a type of attainment area while staying in attainment. 3 classes: Class1: National Parks and national wilderness areas (lowest increase in pollution), Class2: All other areas, Class3: Areas selected by state for development (greatest increase in pollution))**, which applies to new [major sources](https://iaspub.epa.gov/sor_internet/registry/termreg/searchandretrieve/termsandacronyms/search.do) or [major modifications](https://iaspub.epa.gov/sor_internet/registry/termreg/searchandretrieve/termsandacronyms/search.do) at existing sources for pollutants where the area the source is located is in attainment or unclassifiable with the NAAQSs. 40 CFR §51.166(b)(2)(i). **[Major new or modified sources in attainment AQCRs + Best Available Control Technology (BACT).]** [Section 165] - **New Source Review** **(NSR)**- requires anyone **planning on building** a **major new** **stationary** source of air pollution to obtain a permit **before commencing** construction of the source. **[Major new or modified sources in nonattainment AQCRs + lowest achievable emissions rate (LAER) +offsets. (RACT for existing sources in NA areas).]** [TITLE II (Sections 202-216)] requires EPA to establish nationally uniform emissions standards **for automobiles** and light trucks that manufacturers must meet by strict deadlines. [42 USC § 7521 (§ 202)] The Administrator shall by regulation prescribe... standards applicable to the emission of any air pollutant from any class or classes of **new motor vehicles** or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. [302(g)] -- the **term "air pollutant"** means any "physical, chemical, biological, radioactive... substance or matter which is emitted into or otherwise enters the ambient air". [42 USC 7411 (NSPS):] **The term "modification" means** any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. The **term "major emitting facility" means** any of the following stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant from the following types of stationary sources. [75 Fed. Reg. 31,514 (2010) -] **Tailoring Rule** - This rule applied the **new permit** requirements only to the very **largest stationary sources of GHGs** --- those that meet or exceed a threshold of 75,000 or 100,000 tons per year. [TITLE III Section 304] - authorizes citizen suits. [TITLE IV (Sections 401-416)] creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acid precipitation. **[TITLE V (Sections 501-507)]** requires **permits** for all **major industrial sources** with state administration and federal oversight. **CASES** **Lead Industries Association v. EPA** -- CT \> the statute and its legislative history make clear that **economic** considerations play **no** part in the promulgation of ambient air quality **standards** under Section 109. Note: Union Electric: States can impose stricter standards than NAAQS, need not consider tech or econ. Feasibility. **Whitman v. American Trucking Ass'ns** -- CT \> Under § 109 of the Clean Air Act, the EPA Administrator may **not consider** implementation **cost** in setting NAAQS. **Environmental Defense v. Duke Energy Corp.** -- CT \> EPA's 1975 regulations implementing NSPS provided generally that "any physical or operational change to an existing facility which results in an increase in the annual emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of \[S\]ection 111." **Massachusetts v. EPA** - Whether §202(a)(1) of CAA authorized EPA to **regulate GHG emissions** from **new motor** vehicles if EPA makes a finding of endangerment (to public health and welfare), the Clean Air Act requires the agency to **regulate emissions** of the deleterious pollutant from new motor vehicles." **Utility Air Regulatory Group v. EPA** - whether regulation of GHG emissions from new mobile sources triggered permitting requirements for stationary sources that emit greenhouse gases - **EPA exceeded** its statutory authority when it interpreted CAA to require **PSD and Title V** permitting for stationary sources based on their **greenhouse-gas emissions**. Specifically, the Agency may not treat greenhouse gases **as a pollutant** for purposes of defining a **"major emitting facility"**. **EPA may**, however, continue to treat greenhouse gases as a "pollutant subject to regulation under this chapter" for purposes of requiring **BACT** for "anyway" sources -- new or modified stat. sources that are already regulated under PSD program that emit GHGs. **West Virginia v. EPA** -- EPA included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources -- Ct \>The **CAA does not give** **EPA** the **authority** to require generation **shifting** (transition from fossil fuel power to renewable) - That issue presents a "major question" and Congress must clearly give EPA that type of authority. **EPA v. EME Homer City Generation** -- Ct. \> The statute does not require EPA to provide specific metrics to states before they fulfill their Good Neighbor obligations - upwind states for downwind pollution. **EPA\'s cost-based approach** (it considers: magnitude of contributions and the cost of eliminating emissions) is a reasonable way to address this challenge. Note: fed gov can implement FIP for state before state submits revised SIP. **National Environmental Policy Act** [- §101] establishes as the continuing policy of the federal government the use of all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. [§102(2)(C)] **requires** all **federal agencies** to prepare an **environmental impact statement (EIS)** on **major federal actions** significantly affecting the quality of the environment. The EIS must include a detailed statement of environmental impacts, alternatives to the proposed action and any irretrievable commitments of resources involved. [40 CFR § 1508.18 -] **2** **Major Federal action Actions include** new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies. [§102(2)(E)] requires all federal agencies to study alternatives to actions involving unresolved resource conflicts. EXP. **NEPA may apply to private projects** when a **smal**l but integral **part of the project** requires **federal approval**, particularly in cases involving \"segmentation\" of a larger project.**1** **NEPA process** **- Categorical Exclusion (CE):** A CE is a category of actions established in the department or agency procedures for implementing NEPA, or established in legislation, that are expected to not have individually or cumulatively significant environmental impacts. Typically, a CE is concluded with the determination that a proposed action is included in the category of actions and there are no extraordinary circumstances that indicate environmental concerns merit further environmental review. **Environmental Assessment (EA):** When a CE is not appropriate and the agency has not determined whether the proposed action will cause significant environmental effects, then an environmental assessment is prepared. If, as a result of the EA, a finding of no significant impact **(FONSI)** is appropriate, then the NEPA review process is completed with the FONSI, otherwise an EIS is prepared. Environmental Impact Statements **(EIS):** The most intensive level of analysis is the environmental impact statement which is typically reserved for the analysis of proposed actions that are expected to result in significant environmental impacts. When an EIS is prepared, the NEPA review process is concluded when a record of decision **(ROD)** is issued. CASES **Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission** - whether it is enough that environmental data and evaluations merely **"accompany"** an application through the **review process** but receive no consideration whatever from the hearing board. - NEPA requires that an **agency must**, to the fullest extent possible under its other statutory obligations, **consider alternatives** to its actions which would reduce environmental damage. Technical and economic considerations must be balanced. **Strycker's Bay Neighborhood Council, Inc. v. Karlen** -- CT \> Under NEPA, the courts role is to ensure that the agency has considered the environmental consequences of its actions. **Kleppe v. Sierra Club** - NEPA does not require a comprehensive EIS for the entire Northern Great Plains region. The requirement for an **EIS is tied to \"major federal actions**,\" and in this case, there was no evidence of such a proposal for the region. **Thomas v. Peterson** - whether the road and the timber sales are sufficiently related to require combined treatment in a single EIS that covers the cumulative effects of the road and the sales before the road is approved. -- CT \>The CEQ regulations require **"connected actions"** to be considered together in a single EIS. See 40 C.F.R. §1508.25(a)(1) (1984). "Connected actions" are defined as actions that "(i) Automatically trigger other actions which may require environmental impact statements, (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously, (iii) Are interdependent parts of a larger action and depend on the larger action for their justification. **Sierra Club v. Peterson** - Ct \> Therefore, the appropriate time for preparing an **EIS** is **prior** to a decision, when the decision-maker retains a maximum range of options. EIS BEFORE granting oil and gas leases. **Hanly v. Kleindienst** -- CT \> before a preliminary or threshold determination of significance is made the responsible agency must give **notice to the public** of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision. **Department of Transportation v. Public Citizen** - FMCSA was not required to evaluate the environmental effects of increased cross-border operations because it lacked discretion to prevent such operations. **Sierra Club v. Federal Energy Regulation Commission** -- CT \> An agency conducting a NEPA review **must consider** not only the direct effects, but also the **indirect environmental effects**, of the project under consideration, such as **EJ**. [See 40 C.F.R. §1502.16(b).] **"Indirect effects"** are those that "are caused by the project and are later in time or farther removed in distance but are still reasonably foreseeable. **Vermont Yankee Nuclear Power Corp. v. NRDC** - **Alternatives analysis** - Reasonable alternatives must be analyzed. Reasonable = practical and feasible from the technical and economic standpoint and using common sense with respect to achieving the defined purpose and need of the project. **Sierra Club v. United States Army Corps of Engineers** -- **Substance and quality** - Agency must: compile relevant information; analyze the information reasonably; cognize pertinent data; make appropriate public disclosures -- Ct \> decision made in reliance on false information cannot be accepted as a "reasoned" decision. **Marsh v. Oregon Natural Resources Council** -- **Supplemental EIS** - An agency need not supplement an EIS every time new information comes to light after the EIS is finalized - if **the new information** is sufficient to show that the remaining action will "**affect** the quality of the human environment" in a significant manner or to significant extent not already considered, a supplemental **EIS** must be prepared. (EPCRKA -- producers of toxic listed substances must notify emergency response coordinators of releases of these substances and report annual production info)