Enviro Law Flashcards

Question

HARM BASED STANDARD

Answer 1

• 1) correlates concentrations of pollutants in the receiving body with undesirable human health and environmental effects; • 2) selecting a target level (ex: ambient quality standard) for concentrations the regulator deems safe • 3) prescribing the amount of pollution that individual polluters whose pollution affects the receiving body may emit or discharge in such a way that if each polluter complies, the ambient standard will be attained. o Both the CAA and CWA illustrates the harm-based technique.

Answer 2

set performance levels for pollution control based on available technologies. o Do not require any specific way of achieving that level of performance, leaving room for innovation and cost savings if more efficient ways to meet standard are available. • example: o Regs of Hazardous Air Pollutants (HAPs) under the Clean Air Act. o Technology Based Effluent Limitations (TBELs) under Clean Water Act o MATS Standards

Answer 3

when the legislature desires to achieve a pollution reduction result that cannot be met by any existing in-use tech. Legislature picks a time which it thinks a new, more effective pollution control technology can be brought on line. o Ex statutes include vehicle tailpipe emissions and elimination of certain types of CFCs.

Answer 4

o disclosure requires a full inventory of environmental impacts of a proposed action during the planning process so alternatives can be studied to reduce environmental impacts.  Ex statute is NEPA;  Ex: Toxic Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA)

Answer 5

• a flat prohibition on environmentally damaging behavior (Endangered Species Act)

Answer 6

* market-enlisting techniques try to influence polluter behavior by aligning the marketplace economic incentives with the behaviors that will result in the desired environmental outcome (subsidies and pollution taxes are examples, as well as emissions trading programs such as the acid rain program under the Clean Air Act). * Achieved desired reduction in pollutants by gradually reducing the number of allowances/permit.

Answer 7

* Cap and trade reduces reliance cost. | * TEQ (Tradable Energy Quotas ) provides more flexibility.

Answer 8

!• Agencies decide whether to act through a rulemaking or adjudicatory process Advantages of rulemaking: • a notice and comment period, idea is you’re going to get input through the comment process of all the stakeholders (politicians, private interest groups, etc.) o Adjudication is just parties/litigants in front of you so not as broad participation. • wider applicability; applies prospectively basically to everybody (Adjudications on the other hand apply retroactively). Rulemaking provides much more flexibility in the process: it’s basically a notice and comment, analyzing the comments, and explains that based on the comments this is how we will proceed; • Adjudication requires all the cross-examination, discovery, etc., much more tedious.

Answer 9

• formal rulemaking: hearing on the record; formal trial-type process. (right to discovery, motions, production of evidence, cross examination). o Usually factual issues, not legal questions.

Answer 10

* “supportable by the record” Suggests substantial evidence test which suggests a formal rulemaking process; * Substantial evidence test = formal rulemaking EPA decision upheld

Answer 11

• standard of review: the arbitrary, capricious (easier than substantial evidence)

Answer 12

: the arbitrary, capricious, or abuse of discretion test

Answer 13

substantial evidence requirement

Answer 14

contrary to law

Answer 15

standard of review is a “narrow” one, will not sub their review for that of the Agency; it’s a messy opinion and standard of review isn’t explicitly identified. • Court sent it back due to inadequate record (admin record was not before teh court); the agency didn’t tell the story

Answer 16

* justiciability/reviewability * if discretionary act of Agency is not subject to judicial review, although there is the arbitrary and capricious standard * standing, injury in fact, can your injury be redressable * Causation * exhaustion of remedies (“weve delegated authority to this particular agency with expertize in the area....”) * and ripeness (must be a dispute; can’t be advisory opinion).

Answer 17

). Court can’t step in and tell an agency it must do more than what the APA requires.

Answer 18

when congress has set a statutory standard for agencies to apply, courts must see enough evidence on the record to be satisfied that the agency itself took a “hard look” at all relevant facts and the statutory standards that applied to them.” The determination is subjective. (• It does not appear this was applied in Vermont Yankee, the court focused on the issue and error of the Appellate court applying additional procedural requirements on the Agency.)

Answer 19

Chevron Two-Step: * Step One: Given the statutory language, is the intent of Congress (in the eyes of the reviewing court) clear? If so, the court will itself declare that interpretation, whether the agency agrees or not. * Step Two: If the court decides the meaning is not clear, then the court must review the agency’s interpretation deferentially, upholding it if the court thinks the agency’s answer is based on “a permissible construction of the statute.” HERE: Congress hadn’t spoke precisely to the question at issue so the Court proceeded to step 2 to conclude that EPA’s interpretation was permissible and reasonable. o Prof: if chevron applies it’s pretty much over, very deferential to agency.

Answer 20

NEPA is a broad stop and think, disclose to the public, administrative law. • NEPA Section 101 references public trust doctrine; it’s a “motherhood” statute • Agencies must produce a publicly reviewable physical document reflecting the required internal project analysis. • Enforcement Mechanism: None • Section 102, specifically 102c is the guts of NEPA; o disclose the environmental impact and evaluate the alternatives.

Answer 21

tactic to avoid NEPA analysis; entire project is divided into smaller segments and the least destructive segment is built first so the impact statement is limited to that segment.

Answer 22

* Doing same thing in # of diff locations, don’t need EIS for each site; this activity has same impact at all locations so you get a programmatic EIS; * Ex: mountain top removal: it’s exact same at each site/location so programmatic EIS applies to all locations.

Answer 23

include in an environmental impact statement (EIS)? • A discussion of significant environmental impacts, and • Alternatives to the proposed action

Answer 24

when the failure to file an impact statement is challenged, it is the court (that decides) that must construe the statutory standards of ‘major federal action’ • Standard of Review for agency determination not to prepare an EIS: usually informal process, factual = arbitrary and capricious standard under Administrative Procedure Act. Court decides whether an EIS is adequate; standard of review does a court apply when it is reviewing the adequacy of an agency’s EIS: arbitrary and caprcious standard;

Answer 25

o EA (Enviro Assessment) before EIS. o EA: prelim step to det. whether action may sign. affect environ and trigger requirement for EIS. EIS: contains a discussion of significant environmental impacts and alternatives to the proposed action Court here: you need to consider full range of alteratives; did your analysis really consider the incremental benfits of reducing greenhouse gases associated with more stringent CAFÉ standards. the EA did not evaluate the incremental impact thate emissions will have on climate change or on the environmnent more generally. The agency considered a very narrow range of alternatives

Answer 26

* Government board had to issue a license so an environmental impact statement is required. * The EIS did not examine the effects that may occur (increased pollutants associated with coal burning that aren’t capped) as a result of the reasonably foreseeable increase in coal consumption due to increased accessibility of coal in the Powder River Basin.

Answer 27

* If a transaction or project involving private entities utilizes federal land or requires a permit from a federal agency then NEPA applies; federal funding, state/local gov actions, legislative, * Use small role of fed gov to get NEPA review on a project

Answer 28

Section 313 establishes the Toxic Release Inventory (TRI) which requires facilities that “manufacture, process, or otherwise use, listed toxic chemicals in amounts above designated thresholds and that employ ten or more FTEs to file annual reports with the EPA. facilities must file reports detailing: o Whether chemical manufactured, processed, or used o Estimate of maximum amounts of chemicals on site o Treatment methods o Quantities of chemicals released to environment.

Answer 29

carbon monoxide; lead; nitrogen dioxide; particulate matter 10 and 2.5; Ozone; and Sulfur Dioxide. • They are referred to harm based standards based on scientific evidence of potential harm to human health and welfare. They are the most ubiquitous and best understood air pollutants in the U.S.

Answer 30

* Harm based: Set based on level of harms trying to avoid. Harm based does vary based on whether your’re on attainment or non attainment area; they are variable. * Technology based: Set based on best available technology (can consider cost when establishing a tech based standard). Tech doesn’t vary by state, standard across U.S. ***o Industry prefers harm based, implemented at state level

Answer 31

• scientific evidence of potential harm to human health and welfare. dangers of public health or welfare

Answer 32

• Once you determines something is danger to public health then you’ve got to develop a national ambient air quality standard for it. Setting NAAQS: - costs not considered; cnanot consider costs. - scientific certainty not required.

Answer 33

* SIP could be subpar if it looks like it won’t be effective. SIP must demonstrate commitment to meet Federal Air Quality Standard . * WV with existing plant emission rules: we aren’t doing a SIP, EPA go ahead and do your FIP, but we’re not going to play. Consequence for State is that they lose control. o It needs to appear from SIP plan that it will be achieved and maintained. o Lots of flexibility using fees, marketable permits, auctions of emission rights (states own cap and trade program). Try to use market based approach if possible.

Answer 34

Consideration of implementation costs when determining NAAQS forbidden • Breyer, Dissent: consideration of costs permitted o Trucking association arguing about separation of powers: improper delegtion of authority, violates non-delegation doctrine; no guidance or standard for agency to comply with.  DC circuit bought this argument and remanded to EPA to establish a determinate standard. • Supreme Court: can’t consider costs for determining NAAQS. o Industry would side with Breyer dissent that consideration of costs are permitted.

Answer 35

scientific certainty NOT required when EPA establishes a NAAQS. all that is required by the statutory scheme is evidence in the record which substantiates his conclusions about the health effects on which the standards were based.

Answer 36

* Deferential standard of review; its okay for EPA to now resolve all these disputes. * More of a hands off approach (case was 1984) * Court says it was a reasonable course of action Outconme may seem unfair to KY, downwind from IN pollution. BUT This avoids the pitfalls of some vague equity based approach that would inevitably embroil EPA in bitter interstate disputes involving protracted evidentiary matters concerning the precise extent of interstate pollution. * NOTE Diff. result under Tech Based Standard: - - Tech Based Standard advantage is that it applies equally across the country so it would minimize the downwind impacts. * Now: good neighbor provision: cant do things in one state that significantly contribute to non-attainment in a down wind state.

Answer 37

• LAER is the lowest achievable emission rate • applies to NEW SOURCES IN non attainment areas. • Technology based standard o b/c new source in non attaintment so its high standard to apply beforeEPA allows another source in there. o LAER also requires deals with other polluters so overall you achieve overall progress.

Answer 38

• Reasonably Available Control Technology (RACT) * applies in EXISTING non attainment areas (existing stationary sources). * Technology based standard.

Answer 39

- Issue is the good neighbor provision; shouldn’t be doing something in on estate that signficinatly contributes to pollution in another state. o The current State of law on trans boundary pollution:  EPA’s cost effect allocation of emissions reductions among upwind States is a permissible, workable, and equitable interpretation of the Good Neighbor Provision  States don’t have to have a 2nd opportunity to provide a SIP.  LOT OF DEFERENCE. “Chevron Deference” Congress spoke to extent it laid out good neighbor decision, EPA interpretated it, SCOTUS says CASPR upheld.

Answer 40

broad term “air pollutant” – fairly broad scope; air pollutant turns out to be basis for decision. o Endangers public health or welfare o Endangerment finding triggers the courts holding (Section 202 requires endangerment finding before EPA can regulate something as pollutant).

Answer 41

• Findings EPA made in Dec 2000 order that it was “appropriate and necessary to regulate coal and oil fired EGUs under Section 112 because mercury emissions from EGUs, which are the largest domestic source of mercury emissions, present significant hazards to public health and the environment. CAMR Approach: • Plant specific standards, but also established the ability to do a cap and trade (national mercury emissions cap, allocated each state a mercury emissions budget, supplemented by a voluntary cap and trade program). o Issues with regulating mercury under cap and trade program:  Mercury has a unique set of impacts; Mercury has more localized impacts so if you allow cap and trade then some utility’s can continue to ignore mercury emissions so regions around those coal plants become hot spots (allowing polluters to continue to pollute; others control their emissions more cost effectively).

Answer 42

• EPA failed to make findings required by Section 112c9 in delisting the EGUs; o Epa had to make finding via 112c9, that it was adequate to protect public health. Had to Undo the appropriate and necessary finding from 2000, but didn’t do that. o Error of law under Chevron step 1, EPA not following process violated plain text of the statute (what congress clearly directed).

Answer 43

• Maximum Achievable Control Technology (MACT) Standards. o 2 step process:  the MACT floor is established based on what is currently achieved by sources – costs may not be considered.  EPA may regulate beyond the floor • Technology based approach.

Answer 44

proposed facility in Attainment or unclassifiable area for So2, CO, ozone, PM, and NOx (accordingly, PSD compliance is required under federal law for an attainment or unclassifiable area; PSD program is N/A in nonattainment area). University sought a PSD permit, which included BACT (Best Available Control Tech) • Standard of review: clearly erroneous standard. court points out that there ate least 2 coal fired, lower sulfer polluting facilities, both employing low sulfur coal or other low sulfur emission technological features apparently achievable but inexplicably rejected for the NMU facility. (Why limit coal supply to high sulfur stuff when low sulfur coal is readily available) • MDEQ offers few connecting threads of logic or date to sustain these fuel choices, justify them as enabling NMU to ahieve emissions limitations clean enough to be BACT, or support the redefining the source claim. Decision lacks a coherent, clearly ascertainable basis, or careful and detailed look, and we are unable to conclude that it meets the requirement of rationality

Answer 45

Clean Air Act standard a technology-forcing standard b/c it forces the industry to broaden the scope of its research, to study new types of technologies and control systems. Legislation had a 1 year escape hatch, but EPA wouldn't grant it. EPA had no clear basis for denying extension, National Academy of Science report was in there saying it wasn’t achievable, so the auto industry ultimately got an extension. This is example of technology forcing; like 111b for carbon dioxide; is CCS technology adequately demonstrated for coal? One of the motives for EPA is to force industry to invest in CCS. Some argue it still kills new coal plants and its just like this case b/c the standard can’t be met. Counter by EPA is Kemper plant in MS, so its feasible but not widespread EPA technique: be aggressive to force technological standards as long as standards reasonably attainable.

Answer 46

a. The permit authorizing you to release a certain designated pollutant from a point source; authority to pollute.

Answer 47

a. BAT does not have to compare cost and benefit it’s a reasonable standard. b. You use BAT to set the standard and industry is free to use any tech they want to in order to get there; EPA doesn’t prescribe the technology. c. For TOXIC pollutants

Answer 48

a. For conventional pollutants

Answer 49

a. When you have a new source performance standard then you use BADT.

Answer 50

Water treatment faciliites

Answer 51

New Sources

Answer 52

* 402 establishes the NPDES permit program to regulate point source discharges of pollutants into waters of the United States. * Under 402, States issues the permit SPDES but EPA will do it if State doesn’t with NPDES. • 404 CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. Responsibility for administering and enforcing Section 404 is shared by the U.S. Army Corps of Engineers (USACE) and EPA. Must not violate water quality standards.

Answer 53

* Have to have NPDES permit to authorize discharge; unlike CAA, requires a permit for every discharge within scope of CWA. * Discharge, pollutant, point source, waters of united states, w/o permit.

Answer 54

any discernible, confined and discrete conveyance. . . from which pollutants are or may be discharged. • Examples: pipe, ditch, tunnel, channel, tunnel, conduit, well

Answer 55

• most courts will use Kennedy’s nexus test from Rapanos case: wetland’s come within the term navigable waters if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.

Answer 56

• Discharge is defined as an addition • It doesn’t include pollutants already present; • So if a dam is taking water behind the dam and putting it on the other side; we don’t include dam as discharging a pollutant. • Conventional pollutants: o Total suspended solids o Biochemical oxygen demand o Fecal coliform o pH o oil and grease • it’s a higher standard for toxic pollutants, lower standard for conventional pollutants.

Answer 57

* Ex: a backhoe can be a point source; if the wetland is a water of the U.S. * Ex: if transferring one body of water to another via a tunnel. Yes: ****Its whether you are changing character of the water. If you change quality of water then it’s a point source. • Ex: fishing boat taking fish out of water and dumping excess scales oil into the ocean IS a point source; biological matter is covered as a pollutant. mountaintop removal, mountaintop mining is point source IF runoff is channeled, can become a point source (def: discrete conveyance). helicopter spraying pesticides trap and skeet shooting ranges over a wetland point source b/c lead is a pollutant concentrated animal feeding operations is a point source : placer mining is a point source (see Rybacheck case)

Answer 58

EPA must consider cost of meeting BAT limitations, but need not compare such cost with the benefits of effluent reduction; agency measures cost on reasonable standard; Chevron Deference Set BAT by reference to particular tech. but once that reference is set then industry can use whatever tech they want to to achieve that standard.

Answer 59

EPA decision upheld in Rybacheck

Answer 60

* MCLGs are Maximum Contaminant Level Goals (MCLGs) which are nonenforcable health goals for public water systems. * MCLGs are set at levels at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety; then after setting MCLS (unenforceable) they set MCLs (Max Containment Level which are enforceable) are set as close to MCLGs as feasible.

Answer 61

Atlantic went after Kodak b/c we are n’t looking at pollutants in SPDES we are looking at pollutants that aren’t addressed in the permit, going after them under CAA. Kodak argues permit shield; the chemicals are defined in SPDES permit. Kodak wins. Policy: you can still sue under common law so not without remedy; you are allocating scarce resources (ability to enforce pollution); idea is to address real toxic pollutants under SPDIS and if you limit those, then you may limit some of the others; can’t go after them all but go after the most toxic ones;

Answer 62

states can regulate more stringently than the federal floor set by the CWA (thus the SPDES can be more stringent than the NPDES.

Answer 63

• Court: nothing in CWA that precludes judicial review of the compliance order` but court doesnt resolve “waters of the U.S.”

Answer 64

• Significant nexus test: J Kennedy o Rule takes a shot at defining “significant nexus” • “hydrological connection” test • Groundwater is excluded.

Answer 65

* Issue here: scope of agricultural stormwater exemption. | * Oct 2013 ruling: in favor of Alt (farmowner).

Answer 66

water quality based (states required: if technology standards not stringent enough on bodies of water then state applies water quality approach and does the TMDLs (Total Maximum Daily Load).

Answer 67

calculates the maximum amount of a pollutant allowed to enter a waterbody so that the waterbody will meet and continue to meet water quality standards for that particular pollutant and allocates that load to point sources, (Wasteload Allocation or WLA), and nonpoint sources(Load Allocation or LA), which include both anthropogenic and natural background sources of the pollutant

Answer 68

a. sum of load allocations (non point sources and background); used to calculate TMDL

Answer 69

a. sum of wasteload allocations (point sources) used in TMDL allocation.

Answer 70

reason epa got involved in setting TMDL for Garcia river: EPA disapproved of CA’s list b/c it omitted seventeen water segments that did not meet the water quality standards set by CA for those segments. 16 of the 17 were impaired only by nonpoint sources of pollution. After CA rejected opportunity to amend its 303d1 list to include the 17 segments, EPA established a new list for CA to include those segments.EPA establishing a TMDL standard of review: reasonable interpretation of the statute for epa to come in and set TMDL **EPA has the authority to impose TMDLs on a river polluted only by nonpoint sources of pollution** they can come in and do this.

Answer 71

• states are required to set water quality standards for all waters within their boundaries states develop plans

Answer 72

Maybe. No if fully used, but compliance schedules may give you enough headroom (due to compliance schedule with other polluters) to allow you to pollut down the road.

Answer 73

o Allow polluters to trade among themselves to take advantage of fact that those that have high pollution control costs can pay a lower polluter to pollute. o Policy: encourages interstate agencies to think creatively to facilitate voluntary trading programs. Same as cap and trade. Allowances for pollution, by trading them, you will have reduced pollution and incentives for voluntary reduction.

Answer 74

states do have some leverage b/c of water quality certificates under 401; • Cuomo (NY) going to deny 401 permit for Indian Point b/c kills billion fish per year and radiological plumes getting into Hudson due to leaking spent fuel rods.

Answer 75

* the higher value of human life the more admin burdens yo can put; * regulatory review process that pretty much does do a cost benefit analysis.

Answer 76

Factors to put value on human life: • What they earn, how much are they making; • Age, how many more years of life, years of producing income; • State of their health • Discount rate (big variable)

Answer 77

• "Discounting" or Discount rate has a huge effect. , future costs and benefits are discounted or treated as equivalent to smaller amounts of money in today’s dollars. • If a higher discount rate is used then the effect on present value is smaller o Value of $100 twenty years from now: discount rate of 3% = $55; discount rate of 5% = $38.

Answer 78

• EPA can prohibit, label the product, etc.

Answer 79

EPA only looked at 13 years and court was concerned with that. • Issue 1) EPA didn’t really look at the present valuing of death versus the cost • Issue 2) only look out 13 years, after 13 years unquantified and they tipped the scales • Issue 3) and just the #s of value of human life didn’t add up, wasn’t justified. • EPA tried to say unqauntified benefits beyond the 13 years looked at tips the scale; Court here: can’t use the unquant benefits after year 13.

Answer 80

: unquantified benefits can at times permissibly tip the balance in close cases. They cannot be used to effect a wholesale shift on the balance beam. • Unquantified benefits can play a rolse in close cases, but cannot be used to effect a wholesale shift on the balance beam

Answer 81

* FIFRA is like a driver’s licence (have to get pre clearance of a pesticide before you can sell it, you have to show safe for intended use), TOSCA is not like a drivers license, TOSCA is assumed safe and EPA has to show otherwise. * TOSCA is a presumption that your chemical is safe; burden is on EPA to show otherwise.

Answer 82

* EPA has burden to show chemical isn’t safe. * Standard: EPA has burden to demo need for additional testing (beyond what manufacturer has done before bringing chemical to market). EPA has to make case that it may create unreasonable risk of injury to health or environment. Section 5 applies to new chemicals and Sectoin 4 applies to existing chemicals.

Answer 83

• standard: presents or will present an unreasonable risk of injury to health or environment. (present or will present, no “may” so heavier burden). IF EPA determines regulation necessary under Section 6 of TOSCA then • EPA must use least burdensome requirements: prohibit, limit it, mark it, require manufacturer to retain records, regulate manner or commercial use of substance.

Answer 84

• EPA wins. Rejecting chemical man argument that it needs to be more likely than not, just needs to be more than a theoretical basis standard under Section 6 of TOSCA. High burden for EPA to exercise regulatory restrictions; makes it difficult for EPA to do anything under TOSCA.

Answer 85

* MCLG: No, no cost benefit analysis for MCLG. The Goal, we don’t look at benefits. * EPA is required to conduct an analysis of the cost and benefits of varying MCLs. When we set max containment level we do perform a cost benefit analysis. • Both quantifiable and nonquantifiable benefits are used for the cost benefit analysis. Quantitated and non-monetized benefits used. • Focus on MCL, not MCLG

Answer 86

hydraulic fracturing included within the SDWA’s Underground Injection Control Program • Class VI, new class of well developed by the EPA under the SDWA for geologic sequestration of CO2

Answer 87

• create a scarcity over time (ex 35 years go from 100M to 20M); you must have an allowance over time in order to pollute.

Answer 88

. Pollutants are the same, replacing one molecule with another. Not fair to equate 2 different types of pollutants that aren’t the same. You don’t want a pollutant with localized impacts (like mercury). Cap and trade doesn’t work with mercy, localized impacts which leads to hot spots and disproprionate impacts on EJ.

Answer 89

an allowance authorizes a utility or industrial source to emit one ton of pollutant during a given year or any year thereafter. You must have allowance in your pocket to cover each ton of CO2 over a given year.

Answer 90

The aggregate level of emission capped.

Answer 91

: method is required to distribute the initial allowance; allowances can be distributes to participants based on historical info (grandfathering) or on basis of updated information (Updating) as well as an auction.

Answer 92

a program to measure and track compliance of allowances, trades, etc. being albe to measure level of pollutants.

Answer 93

p. 613 a means of determining whether sources are in compliance and enforcing the program if sources are out of compliance; enforcing fines.

Answer 94

reducing emissions more than required in a given year and “banking” the surplus for future internal use or sale. If you allow banking then if you achieve more reductions in year one, gives polluters incentive to reduce sooner rather than later, use it in future periods.

Answer 95

emissions shift to another geographical area; good ex: CA now has a carbon market and coal mines in WV are thinking of developing means of methane capture to sell into CA carbon market. It’s allowing something outside CA to be used as a compliance option even though CA’s interests are reducing pollution in CA. allowing trading outside the region where it occurs and where it wants to be reduced.

Answer 96

a safety valve. When price of credits go way up. If model was way off and price of allowances are higher than anticipated, there needs to be a price signal but not one so great that it causes hardships. This provision says if prices above X then we pull the plug on this program.

Answer 97

allows large new sources and major modifications of existing sources to be exempted from otherwise applicable review procedures if existing emissions elsewhere in the same facility are reduced by a sufficient amount. Ex: if 4 coal plants, reduction at one plant will allow you to continue operating the other 3 plants.

Answer 98

If you want to site a new source and allocations are all used up you need to find a non attainment area with lowest achievable emissions rates plus offsets; like getting another polluter elsewhere to back down so you can pollute more. CA offset: rather than reducing our emissions in CA we will pay a coal mine in WV to reduce methane; something done outside jurisdiction that can be applied. REGGI in NY has restrictive provisions on offsets, can’t do stuff outside the 9 state region. You can have very generous policies on offsets so it gives you a whole lot of options.

Answer 99

bubble policy allows a firm to combine the limits for several different sources into one combined limit and to determine compliance based on that aggregate limit instead of from each source individually. The name alludes to an imaginary bubble places over the several sources.

Answer 100

Under banking, firms that take actions to reduce emissions below the relevant standard can accumulate credits for future internal use or sale. You can have very generous policies on banking so it gives you a whole lot of options.

Answer 101

• Adv. Of cap and trade: o Recession = fewer allowances = price of allowances go down, so it smooth’s out impact of recession. o Booming economy = prices of allowances will be higher. o Downside: just keep buying allowances and polluting o Disadvantage: harder to understand; ability for market manipulation with phantom reductions, reductions only on paper but not actual reductions. Cap and trade got a bad name after wall street meltdown b/c you would have traders involve din buying and selling these allowances, potential to be gamed. o Disadvantage: another bureaucracy, need oversight, market monitoring, enforcement; tougher to administer than a tax. o Cap and trade: moving $ within industry, not out of it like a tax. o BIG Advantage: you can land right on the % of emissions reduction you want, whereas with a carbon tax you are guessing, regulator is estimating a price signal that needs to be sent instead of the market sending the price.

Answer 102

NO. * This is the scrap old cars program. Rather reduce levels of pollution just go out and buy old cars. * SCAQMD’s pollution trading progrms resulted in the creation of toxic hot spots by concentrating pollution in communities surrounding major sources of pollution. A rule to crush old cars for the pollution credits resulted in heavily concentrated pollution where it used to be spread out by the use of automobiles. Pollution in the EJ communities. o Here, companies did measure pollution but actual measurements compared to reported emissions varied widely and SCAQMD overlooked the issue. Here, car scarappers abused the system. Enginges were sold for reuse before the body o fthe car was crushed.

Answer 103

during first commitment period, from 2008 to 2012, the required reductions average about 5% and range as high as 8% for particular countries. • European trading scheme not working bc not enough allowances.

Answer 104

**. Don’t pay for something that was going to happen anyway. ** * Fundamental to emissions trading programs, market based options. * Additionally is the idea of providing an incentive for something that wasn’t going to happen anyway or an incentive for something you were going to do anyway. Criticism of CDM mechanism is incentive for coal plant in china to be super critical coal plant which is an offset in EU ETS. Additionally would say wouldn’t that make sense for China to do that anyway so your not accomplishing anything: if youre going to do it anyway due to regulations or economics then that incentive is not achieving any additionally. Pay somebody in brazil not to cut down trees, were they going to cut down trees anyway? Does your incentive really provide any incentive?.

Answer 105

Emitters included: • fossil fuel fired electric power generators with a capacity of 25 MW or greater within the RGGI states (9 NE mid-ATL states); 10% reduction in green house gas emissions between 2015 and 2020; reduction of 2.5% per year. how are allowances allocated? • through quarterly, regional CO2 allowance auctions • they have raised $700M since RGGI was started. • When deciding program you must decide how to allocate (grandfather, auction off/give away) How are the proceeds from the sale of allowances spent? • Invested in consumer benefit programs to improve EE and accelerate the deployment of renewable energy technologies • Design Issues: o Use of allowance proceeds  Nexus of price on carbon and using proceeds to invest in carbon reducing measures  Clean tech. development and R&D

Answer 106

• Revised Regional Cap: lower the regional CO2 emissions cap to align the cap with current emisions levels while accounting for allowances held by market participants in excess of the quantity needed to demonstrate compliance o Started with 188 million tons o Reset baseline to 91 million tons • Offsets: more generous you are with offsets the lower the compliance costs are. • Lessons leranred: o RGGI vewed as success o Importance of setting baseline correctly (based on actual most recent emission levels; mechanism to adjust cap level in enve to lower than expected emission prices)

Answer 107

* Right to pollute * The allocation problem * Use of proceeds from sale of allowances * Avoiding hot spots

Answer 108

• Because it’s a road block; it’s an absolute prohibition if it involves harm or a taking. • Designation of endangered or threatened species, designation of critical habitat (section 4) • Section 7 applies to federal agencies; gov actions – GOD COMMITTEE comes in on section 7 o Making sure fed agencies don’t contribute, jeopardize, or threaten species or modify their habitat. • Section 9: take or kill; private actions o (Section 10 is incidental take permit)

Answer 109

o 1) a commercial ban limiting the importation and domestic sale of endangered species and their parts o 2) a provision forbidding fed agencies (section 7) from harming species o 3) a provision forbidding the killing or taking (section 9) of endangered species

Answer 110

unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet (p. 432). Ex: possible cure for cancer. • Unintended consequences in the chain of things if one species disappears (ex: bats eating insects which help farmers grow food; if bats die, more insects, less crops) • Precautionary principle, don’t know what impact animal has on environment so don’t mess with that.

Answer 111

• Fish and Wildlife Agency lists particular species as endangered.

Answer 112

* The court said they would not weigh the costs b/c congress had already spoken, pointed out that Congress declared the costs as an “incalculable value” * Statutory terms couldn’t be plainer. * Commitment to sep of power is too fundamental for us to preempt congressional actions. • the snail darter was saved in the God Committee deliberations (but still decimated when funding to complete the TVA dam was snuck into a spending bill so the TEllco dam was eventually completed). A rider was slipped into bill right before being passed; Carter threatened veto but then signed it.

Answer 113

Forest Service not protecting the spotted owl here. * You can get some relief form absolute prohibition via God Squad and takings, BUT that’s about it (not here) * Here: is forest service acting consistent with Forest Service Management Act?

Answer 114

Harm defined in the Interior Dept. regulations that implement the statute. See page 443. “Harm” is included as part of “take.” • Sec defined harm to include significant habitat modification or degradation that actually kills or injures wildlife. • Congress had not defined so then the question is it a reasonable interpretation of the definition “harm.” The interpretation was upheld. • Standard of Review: Chevron deference o Consistent with dictionary def of harm • Standard of Review in Scalia’s Dissent: o Indirect v. deliberate takings; if you didn’t intend to kill o Scalia focuses on intent, did we intend to include these incidental harms within a Section 9 “take.” • Circuit Split on Migratory Bird Treaty: Did you have to intend to kill or are you liable for incidental killings (your actions lead to death of animal)

Answer 115

• Section 10, Incidental Take exemption: You’re not trying to injure or harm wildlife but it happens incidentally. Section 9 allows permits to e issued means an incidental/indirect take was within the scope of Section 9 in addition to deliberate takings. SEction 10, it’s a bypass, it is a retrenchment from the roadblock of Section 9. * Most activities you can say are “incidental to” * Must have a habitat conservation plan showing you considered alt and will take actions to mitigate impacts. * Section 7 applies to gov agencies; section 9 applies to private takings. • Other roadblock bypasses (see slides) o No surprise agreements (like a permit shield); no further liability under ESA so long as terms of HCP fulfilled. o Safe harbor agreeements (establishes a baseline for animals on your prop, as long as animals stay above baseline you’re okay) o Candidate conservation agreements: contracts with dept of interior committing to take certain measures.

Answer 116

: God Committee review considered so embarrassing and rigorous that agencies will only rarely considering difficulties of obtaining one. Once you have referred something to God Committee, prohibition on spending money (making whatever God Committee decides moot by continuing construction to near completion).

Answer 117

sunset provision: every 5 years the ESA requires congressional reauthorization or by its terms it would expire.

Answer 118

* ESA section 7 applies only to actions in which there is discretionary Federal involvement or control. If nondiscretionary then Section 7 does not apply. * Applied chevron, defer to agency reasonable interpretation. * Dissent: nothing in there makes distinction between discretionary and non discretionary they should have to go through the section 7 analysis. * Prof can see point of dissent, nothing in language of statute makes distinction between discretionary and non discretionary. Can’t just declne to exercise consultation process b/c non discretionary duty, can still do the non consultation process

Answer 119

* Def argue no past, current, or continuing take. Nothing has been taken yet and Section 9 is all about takes. * P. 13; the ESA's citizen-suit provision provides for injunctive relief which by design prevents future actions that will take listed species. Congress explained that citizen-suit actions allow any person "to seek remedies involving injunctive relief for violations or potential violations of the Act, Court holds that in an action brought under § 9 of the ESA, a plaintiff must establish, by a prepon- derance of the evidence, that the challenged activity is reasonably certain to imminently harm, kill, or wound the listed species. • To require absolute certainty, as proposed by Defendants, would frustrate the purpose of the ESA to protect endangered species before they are injured and would effectively raise the evidentiary standard above a preponderance of the evidence. 30 The reasonable certainty standard, in combination with the temporal component, is consistent with the purpose of the Act, its legislative history, the implementing regula- tions, and Supreme Court precedent. 31 •Court found bats are present, during spring, summer, and fall, in caves that are close proximity to the wind turbines. RELIEF GRANTED: • enjoined from: o (1) constructing any additional turbines at the Beech Ridge Project site beyond the forty turbines that they have already be-gun to construct; and o (2) operating any turbines at the Beech Ridge Project site between April 1 and November 15 in any calendar year; and it is further

Answer 120

* It’s a very different record in front of the PSC (2 witnesses) compared to the record before this tribunal. * Also: it’s not the PSC’s jurisdiction to enforce the ESA; way outside its area of expertise to way this sort of scientific testimony.

Answer 121

o You get deference as long as you go through the motions; but deciding you are not even going to consider something is where agencies get hung up. o (AS long as agency does EA well to say EIS not needed, should be okay)

Answer 122

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a United States federal law that set up the basic U.S. system of pesticide regulation to protect applicators, consumers, and the environment.

Answer 123

FIRFA and TOSCA go hand in hand); Good Ex: of Back-End is CIRCLA super fund site (already have a mess that needs cleaned up). • P. 647: operating at the front end of the regulatory continuum, these strategies emphasize precautionary control of market access and pollution prevention.

Answer 124

* FIFRA places burden of going forwards, colleting data, establishing testing protocols, testing and proving safety on the manufactures (under threat of potentially sever legal sanctions). * TOSCA places burden of going forward on the EPA (to establish substantial evidence that chemical testing is necessary and then to set testing protocols); presumption that it is safe.

Answer 125

FIFRA has a true licensing scheme; before pesticides are sold they must be registered with the EPA and burden to determine they do not present an unreasonable risk; like a person obtaining a drivers license to drive from the state. • Also has an expiration date: 5 years under FIFRA. An agreement applicant will follow the rules. Demonstrated to be safe and knowledge of the rules of the road.

Answer 126

o 1) its composition is such as to warrant the proposed claim for it; o 2) its labeling and other materials required to be submitted comply with the requirements of this act o 3) it will perform its intended function ""without unreasonable adverse effects on the environment;"" and o 4) when used in accordance with widespread and commonly recognized practice it ""will not generally cause unreasonable adverse effects on the environment."" o ^^highlighted portion pointed out by prof as “the standard.” Must HAVE : A complete formula, labeling, what are you saying about, what is the intended use, directions for use, formula, classified for general use or restricted use. You have to do tests. • Unlike TOSCA you have burden to show the tests substantiate your claims. Will not pose undue risk to the environment

Answer 127

– used to initiate review of a substance suspected of posing a substantial question of safety to man or the environment; cancellation not a great remedy b/c it takes a long time and while proceeding going on, the product is still out there.

Answer 128

like a temporary restraining order, you have a hearing. Prevent product from being manufactured or released. Imminent hazard is standard for ordinary suspension.

Answer 129

strongest action EPA can take under FIFRA, ex parte; registrant is not given notice or opportunity for expedited hearing. Thisi is he most serious. If unreasonable harm would likely materialize while ordinary suspension hearings are pending is standard for emergency suspension.

Answer 130

* EPA assumed benefits and didn’t really identify the costs. Ultimately, it was an incomplete analysis by the EPA. * When EPA defines 'unreasonable adverse effect' it must take into account the economic social and enviro costs and benefits of use of any pesticides; EPA fell short on that here. * “the mere recitation of a pesticide’s uses does not suffice as an analysis of benefits. The analysis of benefit requires some consideration of whether such proposed alternatives are available or feasible, or whether such availability is in doubt.” * Here: the Admin’s mere mention of these products major uses, emphasized by the EPA, cannot suffice as a discussion of the benefits. FIFRA standards not pure safety criteria, economic benefits and costs of regulations are weighed at the registration, cancellation, and suspension stages.

Answer 131

• No. You still have your common law tort suits in state court. Preemption only applies that states cannot wade into FIFRA

Answer 132

• No. Section 136v(b): prohibits state from playing in the sandbox;

Answer 133

Court ruled that farmers state common law claims against a herbicide manufacturer for defective design, defective manufacture, negligent testing, and breach of express warranty did NOT impose requirements for labeling and packaging and thus were NOT PREEMPTED by FIFRA; however... • State law fraud and negligent failure ot warn May be preempted if the common law duties imposed by state law are equivalent to FIFRA’s misbrandaing standards. • P. 657: """"FIFRA 136b preempts any statutory or common law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not preempt a state law requirement that is equivalent to and fully consistent with FIFRA’s labeling standards. """""

Answer 134

* EPA gets data from manufacturers and they have no way to verify that info. * Prof: compared to TOSCA, FIRFRA is working well. * “Thus FIFRA, although it facially requires a manufacturer to bear a more demanding burden of proof than TOSCA, has failed b/c in practice, political pressures have caused the same information bias in FIFRA that has virtually disabled TOSCA.

Answer 135

RCRA: cradle to grave, goal is to prevent the CRCLA superfund sites; Regulation of haz waste from time its transported to its time of disposal, if anything bad happens trace it back to its origins so you can never escape responsibility for the haz. Waste you have created.

Answer 136

Step 1) is it a solid waste | • Exclusions: listed in statute. If reg as point sources in CWA then not a solid waste under RCRA

Answer 137

* “cause or sig. contribute to...” | * “pose a substantial present or potential hazard to human health or the environment.”

Answer 138

4 criteria for characteristic: ignitability, corrosively, reactivity, toxicity

Answer 139

household waste, fertizilers, mining overburden, ash waste from combustion of coal, drilling fluids.

Answer 140

* Once it’s listed, you can’t make it go away by diluting it, can’t make it not hazardous any more. You’re just making more of it * Important distinction with listed and characteristic waste • Listed waste doesn’t go away, so mixture rule says if you’re mixing things with a listed waste, you are just creating more hazardous waste. Characteristic waste are not covered by the mixture rule b/c you can maybe remove it if its characteristic.

Answer 141

any waste derived from the treatment, storage, or disposal of a listed waste is deemed to be a hazardous waste (Ex: ash residue from the burning of a listed waste). It always retains haz. Characteristic, can’t make it go away like characteristic waste; you’re creating more haz. Waste.

Answer 142

Examples: • Use acetone solvent in auto repair shop: it is a listed haz waste so yes. • Auto repair shop has contaminated gasoline: is gas listed or characteristic: its characteristic b/c its ignitability. You can make it go away by diluting the characteristic of ignitibility (cannot make listed waste go away). • Cloth soaked with acetone: “derived from” – acetone is listed waste and the hazardous nature of acetone is still on the clothe; mixture rule could also apply here • Rag soaked with gasoline: must go back to ignitability standard, if it doesn’t meet that standard then fine –point is you can eliminate the characteristic standard by changing its form. Depends on how much the gas is diluted.

Answer 143

Treatment Storage and Disposal Facility

Answer 144

TCLP: Toxicity Characteristic Leaching Procedure (how do wastes go from solid to hazardous...)

Answer 145

: paper trail (b/c the manifest always follows the waste around) linking the generator, the transporter, and the TSDF for every shipment of hazardous waste from the point of its generation to the point of its ultimate treatment, storage, or disposal. Cradle to Grave.

Answer 146

• Generators are subject tto obligations that begin with recordkeeping practices; must use specific types of containers for haz. Waste, lavel them a certain way, provide info on wastes characteristics, and track their whereabouts until delivered to TSDF. Administrative burden of proper functioning of manifest system is largely on the generator.

Answer 147

• Transporters: least heavily regulated under RCRA; facilitate the operation of manifest system; in eent of spill, can come under additional obligations to minimize effects. Can become liable as generators for RCRA purposes if mix dissimilar wastes or accept waste from outside country. Can become TSDF if store waste beyond regulatory limits (90 days) or alter characteristics of the waste.

Answer 148

• TSDF: most extensively regulated parties. They try to neutralize waste. Have three components: treatment, storage, and disposal, which are all defined broadly. Obligations of TSDFs are predictable. Have to meet obgliations of financial resp., past record of reg. compliance, freedom from crim. Activity. TSDF lifecycle: operations, closure, and postclosure (30 yrs)

Answer 149

• To clarify between above ground and below ground the difference is 10%. If 10% underground then subject to UST regs under RCRA.

Answer 150

* Wanted to minimize land disposal of hazardous materials. * Hammer clause: if EPA failed to act in a timely manner, then congress would regulate. * This forced EPA to develop regs. * (if using BDAT then trading air disposal problem for land disposal problem b/c the best demonstrated available tech. is usually incineration).

Answer 151

• Takeaway: Court: EPA could have gone either harm based or tech. based, either approach reasonable, but these 11 members of congress weighed in against the harm based = reasonable interpretation; but this explanation is inadequate, can’t have post hoc explanations by Congress. • EPA’s justification of its choice was so fatally flawed that the Court could not affirm it, so they remanded it to the agency for a fuller explanation. • P. 765: members of congress have no power once a statute is passed to alter its interpretction by post hoc explanations of what it means. • Post enactment statements are not be considered by an agency or a court as leg. History. • Must have a more sufficient justification, so sent back on remand;

Answer 152

Private party can bring a suit only upon a showing that the solid or haz. Waste at issue may present an imminent and substantial endangerment to health or the environment – an endangerment can only be imminent if it threatens to occur immediately. KFC brought action under RCRA b/c Petroleum was exempt under CERCLA, so they used RCRA. KFC cleaned it up then wanted payment for it. * Court: there is no remedy under RCRA to clean something up and demand payment; only remedy is to file an injunction so somebody else can clean it up but no way to get damages. RCRA In context of injunctive relief not damages. * Clearly cant recover under RCRA by incurring clean up costs then going against the polluter. RCRA: Objective is avoiding CERCLA superfund site. RCRA is forward looking to track the waste as its generated, transported, and disposed of; CERCLA is basic polluter pays.

Answer 153

Lot of corporate issues: piercing corporate veil, going after individuals; Courts and EPA get very creative about peeling back the corporate veil to make those pay, includes brokers, lenders, insurers, etc.

Answer 154

* Pretty much anything that is hazardous waste under any other environmental statute; CAA, CWA, TOSCA, FIFRA – very broad definition. If hazardous in any other enviro statute then its hazardous here. * CERCLA does not include petroleum. NG, NG liquids, LNG, synthetic gas

Answer 155

• Owner operator at time or if you arranged for treatment or transport, if you accepted it. There has to be a release of the hazardous materials for CIRCLA to apply. Must always figure out who owned at time the release occurred.

Answer 156

* governmental response costs, private response costs, and damages to natural resources, also costs to health assessment or health effects study carried out * In sum: any costs incurred by US/State Gov as long as consistent with National Contingency Plan (the operating procedures for cleaning up CERCLA sites)

Answer 157

Defenses established by a preponderance of the evidence include: act of God, act of war, or an act or omission of a 3P that led to the release or threat of release of a hazardous substance.

Answer 158

language was deleted from act before passage. but federal courts construing liability have uniformly held that CERCLA permits but does not mandate, joint and several liability. Therefore, it is within the discretion of the court to impose joint and several liability. * Joint and several liability most likely when causation, burden of proof, traceability difficult to determine. You don’t want to be last person left EPA has to settle with b/c you could be left footing larger bill if clean up still going on. * U.s. Monsanto is leading case: see slides: who has the deep pockets is a way to get at it; even if it is divisible, you may share larger portion of cost if you have deeper pockets.

Answer 159

CERCLA Def bears the burden of proof to show that a reasonable basis for apportionment exists. • Burden of proof on polluters to try and show it is divisible so its only stuck with a portion rather than 100% of cleanup costs.

Answer 160

Basis for apportionment assigned by District Ct: : 1) railroad parcel surface area; 2) length of railroad lease to polluting entity (45% of the time the entity operated at the facility); 3) volume of hazardous substance releasing activities on the property which contributed to 2/3rds of the overall site contamination. * Railroad was stuck with 6% rounded up 50% to 9% liability due to district courts elaborate analysis. * Appeals court didn’t approve of this analysis wanted to try and get 100% to Burlington Northern. * Supreme Ct: analysis by district reasonable so Burlington northern only stuck with the 9% found by the district cour

Answer 161

• When the primary liable party is bankrupt and cannot pay. Fed. Gov. picks up the orphan share.

Answer 162

not liable as an arranger, they can’t be held responsible for irresponsible handling by others. • “specific intent required by “arrange” shows that congress sought to apply arranger liability only to entities that expressly intended to dispose of hazardous substances.” • Knowledge that a disposal may occur may be evidence of the requisite intent, but it is not alone sufficient.

Answer 163

• U.S. cleaning up this site. Def: Wade is person that owns prop and various entities that transported and disposed of materials there. • To nail you: If you owned or operate facility, owned/operate at time haz facility disposed then arranger liability, transporter liability, liability for release. o Court rejects fingerprint notion: required nexus • Burden of proof on gov to recover costs: Only required nexus between defendant and the site is that the defendant has dumped his waste there and that the hazardous substances found in the defendant’s waste are also found at the site. Don’t actually need to trace it back to the defendant. • Try to get as much as we can from polluters so gov has superfund $ to spread it around at as many sites as possible. Fingerprint requirement would be a heavy burden on government.

Answer 164

* Strict liability on any person who arranged for the disposal of haz waste * Lee and Michaels (company management) can be held individually liable if they were personally involved in or directly responsible for corporate acts in violation of CERCLA. * Corp. President, major shareholder, here, • Not liable under CIRCLA, but liable under RCRA b/c he had ability to prevent improper disposals, he could have done something to stop it from happening. * Corp President was not personally involved but b/c he had ultimate authority to control disposal of and ability to stop bad things from happening we can hold him responsible even though he is acting within scope of his corporate employment. VP and plant supervisor liable b/c he had personal knowledge, not b/c of his status in co (VP) but b/c he personally arranged for the transportation and disposal of hazardous waste

Answer 165

• Distinction between derive. Liability versus direct liability. You have to pierce the corp veil to get to derive liability, but you have case here due to direct liability of the individuals that participated. Important distinction here.

Answer 166

•1) Pierce the corporate veil o Small, closely held corp (holding individuals liable for activity under the corp) •2) Officers held liable for own wrongful personal actions o Dumping toxic waste • 3) Individuals liable due to role as managerial officers, responsible for directing the particular corporate activity leading to violations. ^^Methods to keep Gov from being left holding the bag

Answer 167

Don’t actively participate.  Your rights to protect your collateral doesn’t actively involve you in making management decisions.  NOT Participating in Management is key concept.to keep you out of liability; CERCLA 101 20E Exclusion of lenders not participants in management defines what is not participating in management.

Answer 168

exercising due care, due diligence, took precautions as seller, undertake reasonable investigation (burden to avoid liability); nothing that would have given you anything to think something was going on that could mean haz waste on prop.  Were the actions you took to investigate in accordance with typical commercial practices: making appropriate inquiries, etc.

Answer 169

 Key: what was the language of the policy in place at the time the releases occurred?  Typically they have a general exclusion. Don’t have coverage for discharging waste, but usually do for sudden and accidental. It all depends on language in policy at time the release of the pollution occurred.

Answer 170

• Continuity of business operation approach, even if you’re not merging/acquiring the entire business, if you are buying enough assets to continue operation of business then we will be able to go after you for the cleanup costs.

Answer 171

* Here: all employees of CPC are directors/officers of Otto II. Can hold CPC liable for actions of Otto II. * If the parent is controlling the facility of the subsidiary then don’t need to pierce corp veil b/c you’ve got direct liability of operator of the facility. (General R in corp law: can’t hold parent responsible for actions of subsidiary even though pretty much have both people wearing same hats; unless you pierce corp veil). • Same employees here. Just b/c you have same employees, doesn’t mean you can hold parent responsible for actions of subsidiary. Question is whether actions directed to the facility by an agent of the parent alone are “eccentric under accepted norms of parental oversight of a subsidiary’s facility.” **o If you have control of facility (as parent) even though owned by subsidiary = factor for liability • To avoid liability for Williams actions just make him an employee of Otto II. But here he was an employee of CPC and not an employee of Otto II. • Same board of directors: interlocking directors is not enough to hold CPC liable for actions of Otto. • Employees wearing 2 hats: that is not enough for going after parent for actios of sub • If you have general corp policies from parent to all subs = not enough to hold parent liable for actions of subsidiary.

Answer 172

a potentially responsible party (PRP) that voluntarily cleans up a site CAN bring an action against other PRPs under § 107(a) of CERCLA for recovery of cleanup costs. - Atlantic Research here goes after U.S. under 107 (3). * Section 113 is about liability not cost incurred. * Predicate to proceed under 113f, has to be following an action where you’re held liable and you’re trying to go after other PRPs for their share. o Voluntary cleanup here; its not subject of an action so it CAN take advantage of 107. o US arguing that Atlantic Research can’t do this: choose between 113 and 107. o Court: the requirement under 113 to have it follow a civil action is a different circumstance, it isn’t a matter of being able to choose yor remedies (p. 716: choice of remedies simply does not exist). • 113f is an equitable allocation, a way around joint and several liability under 107, slightly lighter burden under equitable allocation approach. There is also a shorter of statute of limitations under 113.

Answer 173

: judge ultimately decides what if any peantly to impose thus that’s the safeguard; allows PRP several opporutnities to comment and challenge the action. • unilateral admin. process under 106 does not violate the due process clause

Answer 174

CERCLA Information Database

Answer 175

Hazard Ranking Sytsem | det order that they will clean up sites; clean up must be done consistent with NCP

Answer 176

National Priorities List.

Answer 177

National Contingency Plan

Answer 178

remedial investigation/feasibility study

Answer 179

Record of Decision (Afer APA goes through everything, equiv of judicial ruling except its administrative decision)

Answer 180

Remedial Design

Answer 181

applicable, relevant, and appropriate requirements

Answer 182

* Hazard ranking system informs process of NPL (nat priority list) then RIFS to det. Alternatives (criteria EPA considers to choose among remedies) then decision, then remdieal design, remedial action, work complete and delisted. * Very lengthy process, lots of $.

Answer 183

cost is specifically considered during the final balancing process, as the Agency attempts to satisfy 2 statutory mandates of 121b1 by identifying the remedial alternative that utilities permanent solutions and treatment to the max extent possible while being cost effective. • Polluters will argue “it has to be a cost effective response” from Section 121. Enviro’s argue cost is given too much emphasis.

Answer 184

* Specific provision for loss of natural resources; book mentions how you measure damages: * DOI regulation for how to recover for natural resource damages: restoration/replacement cost or lost use value (reg challenged but upheld). Issues: restoration might not be feasible or disproportionate to lost use value (Prof: challenge to figure out how to price natural resource damages).

Answer 185

• Burden on appellants to provide basis other than default joint and several liability. Since most of waste cannot be identified, stuck with joint and several liability. • Consequence of not settling with Gov: Liable for all past costs and costs that can arise in the future......early settlements to D responsible for a small portion of harm (de minimis settlements) • contribution causation (133f1) allows you to seek contribution o stuck with join and several under 107 but can proceed under 113f under this lower burden, equitable factors deemed appropriate to allocate liability for the costs. Court said: “if the D’s in that action also cannot demo that they were limited contirubtors, it is not apparent why all of the parties could not be held jointly and severally liable.” Issue with that is: if they settle then they are immune – second part of 113f: if you already settle with gov you can’t go back and get them for more contributions. "CONTRIBUTION PROTECTION" o Thus all that’s left is the 2 defendan’ts here since 30 out of 35 others settled; cant go back on those 30 to recover. o Seems as an incentive to get there first to settle so others can’t come after you.

Answer 186

• Pro rata: take number of PRPs and divide by the costs.