HW3

Question 1

1. You work as a hydrogeologist for an environmental consulting firm. Your firm has been retained by a mining company to prepare a surface mining permit to mine coal from 500 acres in Clearfield County, Pennsylvania. You have conducted analysis of the geology and groundwater on the site and have found that 50 acres of the northwest corner of the site contains hydrogeological conditions favorable for producing acid mine drainage. The remainder of the site is of different hydrogeological composition and is not prone to produced acid mine drainage. Given this information, what is your advice to the mining company regarding its proposed mining activity and the permit for which you are applying?

Answer 1

I am looking for an answer that provides some sort of advice to the company that it should avoid proposing mining activities in the 50 acres prone to acid mine drainage (AMD). This could be either a recommendation that the company revise its proposed active mining area to avoid the 50 acres, or advice that the proposed mining plan as currently submitted will not be permitted by DEP because of its likelihood to produce AMD. Any answer along these lines would be sufficient.

Question 2

2. Name and describe the liability scheme established by CERCLA. Include all three major elements of the scheme.

Answer 2

CERCLA establishes a (1) strict liability scheme that is (2) joint and several and is (3) retroactive. Strict liability means there is no need to find fault or intent in order to hold a party liable. Joint and several means that any responsible party is held liable for 100% of clean up costs even though its contribution may be less than 100%. CERCLA’s liability is also retroactive, which means it reaches back in time and holds liable any responsible party regardless of how long ago the release occurred.

Question 3

1. Name two categories of potentially responsible parties (PRPs) that can be held liable for response action costs under CERCLA.

Answer 3

Any two of the following would be acceptable:
• Current owner of facility
• Owner of facility at the time of release
• Generators of the waste
• Anyone who arranged for disposal, treatment, or transport of the waste (these also fit the broad definition of “Generator”)
• Transporters of the waste

Question 4

2. What type of plan covering the post-surface mining process must be submitted to the regulatory agency in order to obtain a surface mining permit pursuant to SMCRA?

Answer 4

a reclamation plan

Question 5

3. Under the Endangered Species Act, what must be developed and submitted before an incidental take permit can be granted?

Answer 5

A Habitat Conservation Plan

Question 6

Assume you are working for an environmental nonprofit organization devoted to protecting and preserving natural resources. A new housing development is proposed on a 200 acre property which includes habitat for a warbler species lists as endangered under the ESA. The warbler’s habitat includes mature forest. The housing development will result in 150 acres of earth disturbance during construction, which will include cutting down 120 acres of mature forest. No wetlands or other surface waters will be filled or encroached upon during the construction.

Based on this fact scenario, state whether or not Section 7 of the Endangered Species Act is applicable and explain why or why not Section 7 is triggered.

Answer 6

Section 7 of the ESA would be applicable. Section 7 is triggered when a federal agency action has the potential to jeopardize a listed species. Here, habitat for a listed species is located on the site and will be destroyed by the construction activity. Thus the activity has the potential to jeopardize the species. In addition, a federal agency action is involved, specifically the issuance of a federal permit. The construction activity is greater than 1 acre, and thus requires an NPDES construction stormwater permit under the federal Clean Water Act, which constitutes a federal agency action. Thus Section 7 consultation under the ESA is required.