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Flashcards in Chapter 25 - Environmental Law Deck (47):

environmental impact statement (EIS)

- a statement required by the National Environmental Policy Act for any major federal action that will significantly affect the quality of the environment
- the statement must analyze the action's impacts on the environment and explore alternative actions that might be taken


environmental law

- the body of statutory, regulatory, and common law relating to the protection of the environment



- a common law doctrine under which persons may be held liable for using their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property
- courts typically balance the harm caused by the pollution against the costs of stopping it
- to obtain relief from pollution under the nuisance doctrine, a property owner may have to identify a distinct harm separate from that affecting the general public


potentially responsible party (PRP)

- a potentially reliable party under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
- any person who generated the hazardous waste, transported the waste, owned or operated the site at the time of disposal, or currently owns or operates the site may be responsible for some or all of the cleanup costs involved


toxic tort

- a personal injury caused by exposure to a toxic substance, such as asbestos or hazardous waste
- victims can sue for medical expenses, lost wages, and pain and suffering



- areas of land designated by government agencies (such as the Army Corps of Engineers or the Environmental Protection Agency) as protected areas that support wildlife and that therefore cannot be filled in or dredged by private contractors or parties
- wetlands are thought to be vital to the ecosystem because they filter streams and provide habitat for wildlife


1. Plywood & Particleboard Mill, Inc., does not use proper filters on its stacks, which consequently pollute the air. Quinn, a Plywood & Particleboard employee, suffers respiratory illness. To succeed in a suit against the company on the ground of negligence, Quinn must show that he suffers from :
a. a distinct harm separate from that affecting the general public
b. a lesser harm that an injunction would impose on Plywood & Particleboard
c. Plywood & Particleboard's failure to use reasonable care to avert harm to Quinn
d. the same harm as that affecting the general public

(C) Plywood & Particleboard's failure to use reasonable care to avert harm to Quinn


2. Ultrahazard Removal & Disposal Corporation transports radioactive materials. Vincent, an Ultrahazard employee, is diagnosed with radiation sickness after exposure to the materials. Vincent's suit against Ultrahazard to recover for the injury is known as :
a. an environmental impact statement
b. a nuisance
c. a toxic tort
d. a hazardous substance response

(C) a toxic tort


Open Pit Excavation, Inc., operates a rock quarry next to Robyn's vineyard and winery. Robyn files a suit against Open Pit, alleging that the quarry us a nuisance and unreasonably interferes with Robyn's enjoyment of her property.



3. Refer to Fact Pattern 25-1B. The court is most likely to award Robyn an injunction :
a. if letting the pollution continue is equally as harmful as stopping it
b. if letting the pollution continue is less harmful than by stopping it
c. if letting the pollution continue is more harmful that stopping it
d. under no circumstances

(C) if letting the pollution continue is more harmful than stopping it


4. Refer to Fact Pattern 25-1B. The court is most likely to award Robyn damages :
a. if letting the pollution continue is equally as harmful as stopping it
b. if letting the pollution continue is less harmful than stopping it
c. if letting the pollution continue is more harmful than stopping it
d. under no circumstances

(B) if letting the pollution is less than harmful than stopping it


5. Nashville, Tennessee, passes an ordinance to regulate waste disposal. The disposal of waste may also be regulated by :
a. all other levels of government
b. no other levels of government
c. the federal government only
d. the Tennessee state government only

(A) all other levels of government


6. Clean n' Green. Inc., operates a chain of car washes throughout the United States. The government entity that is most likely to be involved in regulating the chain's environmental impact is :
a. Congress
b. federal and state regulatory agencies
c. local chambers of commerce
d. local police departments

(B) federal and state regulatory agencies


7. Energy Market Corporation wants to build a wind power plant on private land, for which a federal permit is required. For this action, an environmental impact statement is :
a. prohibited
b. required
c. unnecessary
d. voluntary

(B) required


8. Ski Resorts Inc., wants to add a new run to its facility in a national park on federal land. For this action, an environmental impact statement is :
a. prohibited
b. required
c. unnecessary
d. voluntary

(B) required


9. The National Park Service hires Outdoor Play, Inc., to replace outdated playground equipment in a handful of national parks. For this action, an environmental impact statement is most likely :
a. prohibited because the action does not affect the environment
b. required because the action is "federal"
c. unnecessary because the action is not "major"
d. voluntary because the action does not affect the environment

(C)unnecessary because the action is not "major"


10. Loaf & Biscuit Company operates a commercial dough making and packaging plant - a "major source" - that emits hazardous air pollutants for which the Environmental Protection Agency has set maximum levels of emission. The plant does not use any equipment to reduce its emissions. Under the Clean Air Act, this is most likely :
a. a violation
b. not a violation because dough is not considered a pollutant
c. not a violation because the plant does not use any equipment
d. not a violation because the plant is not a mobile source

(A) a violation


11. The operations of Commercial Concrete, Inc., are major sources of air pollution. These operations must use :
a. the absolutely cleanest air technology
b. the best available filter technology
c. the maximum achievable control technology
d. the most affordable scrubbing technology

(C) the maximum achievable control technology


12. Industrial Solvents, Inc., averages $15,000 profit per day before deciding to ignore air pollution standards, after which the average is $30,000. Industrial Solvents is subject to a fine of :
a. $0
b. $15,000 per day
c. $30,000 per day
d. $30,000 total

(C) $30,000 per day


13. Fried Food, Inc., operates a commercial frying plant, discharging pollutants into the air. Greg reports the violations to the Environmental Protection Agency. Greg :
a. is not entitled to a payment
b. may be paid up to any amount
c. may be paid up to $1,000
d. may be paid up to $10,000

(D) may be paid up to $10,000


14. Condos & Course Development, Inc., fills a wetlands area that it owns without a permit from the U.S. Army Corps of Engineers. Condos & Course Development plan to build a golf course and residences on the site. Under the Clean Water Act, this is most likely :
a. a violation
b. not a violation because a permit is not needed to fill wetlands
c. not a violation because the area was filled before construction
d. not a violation because there was no discharge of pollution

(A) a violation


15. Energy Resources, Inc., operates an oil refinery near Forest River, which flows into Grove Lake. Discharging oil from the refinery unto the river can result in :
a. penalties and damages
b. penalties only
c. damages only
d. no penalties or damages

(A) penalties and damages


16. Grease & Lubricants, Inc., makes its products without required pollution control technology, causing a discharge of oily waste into the nearby Holly Lake. This activity can result in:
a. a criminal fine or imprisonment only
b. a criminal fine, imprisonment, or an injunction only
c. a criminal fine, imprisonment, an injunction, or damages
d. an injunction only

(C) a criminal fine, imprisonment, an injunction, or damages


17. County Water & Sewer operates a public water supply system. County Water must send to every household that is supplies with water an annual statement describing :
a. County Water's financial situation and material facts that might affect it
b. other operations, such as irrigation and water conservation, in which County Water is involved and yo what extent
c. parties who might be liable if pollution problems arise
d. the source of the water, and any contaminants and health concerns

(D) the source of the water, and any contaminants or health concerns


18. Pest Eradication, Inc., makes a pesticide with a one-in-a-million risk to people of developing cancer from exposure. This substance must be :
a. disposed of before anyone develops cancer
b. registered before it is sold
c. taken off the market and placed in temporary storage
d. used only in a way that avoids exposure to people

(B) registered before it is sold


19. HazMat Waste Corporation operates a hazardous waste storage facility. Concerned that there may be a release of chemicals from the site, HazMat sells the property to Investment Holdings, Inc. HazMat is most likely :
a. liable
b. not liable because the site was sold before the release
c. not liable because HazMat was concerned about the release
d. not liable because HazMat no longer operates the facility

(A) liable


20. BioChemical Disposal Corporation operates a hazardous waste storage facility. ChemCo Inc. buys BioChemical before it is discovered that the firm's disposal practices violated CERCLA. With respect to these violations, Superfund imposes on ChemCo :
a. strict liability
b. liability under the nuisance doctrine
c. liability in a negligence theory
d. no liability

(A) strict liability


City, county, and local government involvement

- for instance, local zoning laws may be designed to inhibit or regulate the grow of cities and suburbs or to protect the natural environment
- in the interest of safeguarding the environment, such laws may prohibit certain land uses
- even when zoning laws permit a business's proposed development, the plans may have to be altered to lessen the development's impact on the environment
- cities and counties may impose rules regulating methods of waste removal, the appearance of the buildings, the maximum noise level, and other aspects of the local environment


State and local regulatory agencies involvement

- also play a significant role in implementing federal environmental legislation
- typically, the federal government relies on state and local governments to enforce federal environmental statutes and regulations such as those regulating air quality


Major Federal Environmental Statutes

- Rivers and Harbors Appropriation Act (1899)
- to prohibit ships and manufacturers from discharging and depositing refuse in navigable waterways (33 U.S.C Sections 401-418)
- Federal Insecticide, Fungicide, and Rodenticide Act (1947)
- to control the use of pesticides and herbicides (7 U.S.C. Sections 136-136y)
- Federal Water Pollution Control Act
- to eliminate the discharge of pollutants from major sources into navigable waters (33 U.S.C. Sections 1251-1387)


Environmental Regulatory Agencies (Federal)

- the primary federal agency regulating environmental law is the Environmental Protection Agency (EPA) which was created in 1970 to coordinate federal environment responsibilities
- other federal agencies with authority for regulating specific environmental matters include the Department of the Interior, the Department of Defense, the Department of Labor, the Food and Drug Administration, and the Nuclear Regulatory Commission
- most federal environmental laws provide that citizens can sue to enforce environmental regulations if the government agencies fail to do - or to limit enforcement actions is agencies go too far in their actions
- typically, a threshold hurdle in such suits is meeting the requirements for standing to sue


National Environmental Policy Act of 1969

- requires that an environmental impact statement be prepared for every major federal action that significantly affects the quality of the environment
- an environmental impact statement must analyze :
1. The impact on the environment that the action will have.
2. Any adverse effects on the environment and alternative actions that might be taken.
3. Any irreversible effects the action might generate
- an action qualifies as "major" if it involves a substantial commitment of resources (monetary or otherwise)
- an action is "federal" if a federal agency has the power to control it
- if an agency decides that an EIS is unnecessary, it must issue a statement supporting this conclusion
- private individuals, consumer interest groups, businesses, and others who believe that a federal agency's activities threaten the environment often use EIS's as a means to challenge those activities


Clean Air Act

- enacted in 1959s-1960s by Congress that authorized funds for air-pollution research
- the Clean Air Act, as amended, provides the basis for issuing regulations to control multistate air pollution
- it covers both mobile sources (such as automobiles and other vehicles) and stationary sources (such as electric utilities and industrial plants) of pollution


Mobile Sources Regulations

- regulations governing air pollution from automobiles and other mobile sources specify pollution standards and establish time schedules for meeting the standards
- the EPA periodically updates the pollution standards in light of new developments and data, usually reducing the amount of emissions allowed
- reducing emissions on medium to heavy duty trucks
- greenhouse gases (CO2 emissions)


Stationary Sources Regulations

- Clean Air Act authorizes EPA to establish air quality standards for stationary sources (such as manufacturing plants) but recognizes that the primary responsibility for implementing these standards rests with state and local governments
- standards are aimed at controlling hazardous air pollutants - those likely to chase death or a serious, irreversible, or incapacitating condition, such as cancer or neurological or reproductive damage
- EPA sets primary and secondary levels of ambient standards - that is, maximum permissible levels of certain pollutants - and the states formulate plans to achieve those standards
- Clean Air Act requires the EPA to list all hazardous air pollutants (HAPs) on a prioritized schedule
- nearly two hundred substances - including asbestos, benzene, beryllium, cadmium, Mercury, and vinyl chloride - have been classified as hazardous
- they are emitted from stationary sources by a variety of business activities, including smelting (melting ore to produce metal), dry cleaning, house painting, and commercial baking
- instead of establishing specific emissions standards for each hazardous air pollutant, the Clean Air Act requires major new sources to use pollution-control equipment that represents the maximum achievable control technology (MACT) to reduce emissions


Violations of the Clean Air Act

- the EPA can assess civil penalties of up to $25,000 per day.
- additional fines of up to $5,000 per dat can be assessed for other violations, such as failure to maintain the required records
- to penalize those who find it more cost effective to violate the act than to comply with it, the EPA is authorized to impose a penalty equal to the violator's economic benefits from noncompliance
- persons who provide information about violators may be paid up to $10,000 and private citizens can sue violators
- those who knowingly violate the act may be subject to criminal penalties, including fines of up to $1 million and imprisonment for up to two years (for false statements or failure to report violations); corporate officers are among those who may be subject to these penalties


Clean Water Act (CWA)

- in 1972, amendments to CWA established the following goals :
1. Make waters safe for swimming
2. Protect fish and wildlife
3. Eliminate the discharge of pollutants into the water
- established a permit system called the National Pollutant Discharge Elimination System (NPDES) for regulating discharges from "point sources" of pollution, which include industrial, municipal (such as pipes and sewage treatment plants), and agricultural facilities
- regulations generally specify that the best a viable control technology (BACT) be installed
- new sources must install BACT equipment before beginning operations; existing sources are subject to timetables for the installation of BACT equipment and must immediately install equipment that utilizes the best practical control technology (BPCT)
- EPA must take into account many factor when issuing and updating its rules
- some provisions of the CWA instruct the EPA to weigh the cost of the technology required relative to the benefits achieved
- the provision that covers power plants, however, neither requires nor prohibits a cost-benefit analysis
- prohibits filling or dredging of wetlands unless a permit is obtained from the Army Corps of Engineers


National Pollutant Discharge Elimination System (NPDES)

- Permit system established by the Clean Water Act for regulating discharges from "point sources" of pollution, which include industrial, municipal (such as pipes and sewage treatment plants), and agricultural facilities
- any point source emitting pollutants into water must have a permit
- pollution not from point sources, such as runoff from small farms, is not subject to much regulation
- permits can be issued by the EPA and authorized state agencies and Indian tribes, but only if the discharge will not violate water quality standards
- permits must be reissued every five years
- initially only focused on industrial wastewater, it was later expanded to cover storm water discharges
- permit system include the following elements :
1. National effluent (pollution) standards set by the EPA for each industry.
2. Water-quality standards set by the states under EPA supervision
3. A discharge permit program that sets water-quality standards to limit pollution.
4. Special provisions for toxic chemicals and for oil spills.
5. Construction grants and loans from the federal governments for publicly owned treatment works, primarily sewage treatment plants.


Violations of the Clean Water Act

- be used point-source water pollution control is based on a permit system, the permits are the key to enforcement
- states have the primary responsibility for enforcing the permit system, subject to EPA monitoring
- discharging emissions into navigable waters without a permit, or in violation of pollution limits under a permit, violates CWA
- depending on the violation, civil penalties range from $10,000 to $25,000 per day, but not more than $25,000 per violation
- lying about a violation is more serious than admitting the truth about improper discharges
- criminal penalties, which apply only if a violation was intentional, range from a fine of $2,500 per day and imprisonment for up to one year to a fine of $1 million and fifteen years' imprisonment
- injunctive relief and damages can also be imposed
- the polluting party can be required to clean yo the pollution or pay for the cost of doing so


Safe Drinking Water Act

- requires the EPA to set maximum levels for pollutants in public water systems
- the act, as amended, also requires each supplier of drinking water to send every household it supplies with water an annual statement describing the source of its water and must also disclose the level of any contaminants contained in the water, and any possible health concerns associated with the contaminants


Marine Protection, Research, and Sanctuaries Act of 1972 (also known as the Ocean Dumping Act)

- regulates the transportation and dumping of materials (pollutants) into ocean waters
- prohibits the ocean dumping of any radiological, chemical, and biological warfare agency's and high-level radioactive waste
- established a permit program for transporting and dumping other materials and designated certain areas as marine sanctuaries
- each violation of any provision or permit requirement may result in a civil penalty of up to $50,000
- a knowing violation is a criminal offense that may result in a $50,000 fine, imprisonment for not more than a year, or both
- a court may also grant an injunction to prevent an imminent or continuing violation


Oil Pollution Act

- any oil facility, oil shipper, vessel owner, or vessel operator that discharges oil into navigable waters or onto an adjoining shore may be liable for clean-up costs, as well as damages
- the polluter can be ordered to pay for damage to natural resources, private property, and the local economy, including the increased cost of providing public services
- the party held responsible for the cleanup costs can bring a civil suit for contribution from other potentially liable parties


Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1947

- regulates pesticides and herbicides
- pesticides and herbicides must be :
1. Registered before they can be sold
2. Certified and used only for approved applications
3. Used in limited quantities when applied to food crops
- EPA can cancel or suspend registration of substances that are identified as harmful
- EPA can also inspect factories where the chemicals are made
- a substance is deemed harmful if human exposure to the substance, including exposure through eating food, results in a risk of one in a million (or higher) of developing cancer


Violations and Penalties of the Federal Insecticide, Fungicide, and Rodenticide Act

- it is a violation to sell a pesticide or herbicide that is either unregistered or has had its registration canceled or suspended
- it is also a violation to sell a pesticide or herbicide with a false or misleading label, or to destroy or deface any labeling required under the act
- penalties for commercial dealers include imprisonment for up to one year and a fine of up to $25,000 (producers can be fined up to $50,000)
- farmers and other private users of pesticides or herbicides who violate the act are subject to a $1,000 fine and incarceration for up to thirty days
- note that a state can also regulate the sale and use of federally registered pesticides


Toxic Substances Control Act

- regulates chemicals and chemical compounds that are known to be toxic - such as asbestos and polychlorinated biphenyls, popularly known as PCBs
- the act also controls the introduction of new chemical compounds by requiring investigation of any possible harmful effects from theses substances
- regulations authorize the EPA to require that manufacturers, processors, and other entities planning to use chemicals first determine their effects on human health and the environment
- EPA can regulate substances that may pose an imminent hazard ot an unreasonable risk of injury to health or the environment
- EPA may require special labeling, limit the use of a substance, set production quotas, or prohibit the use of a substance altogether


Resource Conservation and Recovery Act (RCRA)

- was passed in response to growing concern about the effects of hazardous waste materials on the environment
- required the EPA to establish regulations to determine which forms of solid waste should be considered hazardous and to establish regulations to monitor and control hazardous waste disposal
- requires producers of hazardous waste materials to label and package properly any hazardous waste to be transported
- a company may be assessed a civil penalty of up to $25,000 for each violation
- penalty is based on seriousness of violation, probability of harm, and the extent to which the violation deviates from RCRA requirements
- criminal penalties include fines of up to $50,000 for each day of violation, imprisonment for up to two years (in most instances), or both
- criminal fines and the time of imprisonment can be doubled for certain repeat offenders


Comprehensive Environmental Response, Compensation, and Liability Act (CERCLE) (also known as Superfund)

- basic purpose of Superfund is to regulate the cleanup of disposal sites in which hazardous waste is leaking into the environment
- CERCLE, as amended, has four primary elements :
1. It established an information-gathering and analysis system that enables the government to identify chemical dump sites and determine the appropriate action.
2. It authorized the EPA to respond to hazardous substance emergencies and to arrange for the cleanup of a leaking site directly if the persons responsible for the problem fail to clean up the site.
3. It created a Hazardous Substance Response Trust Fund (also called Superfund) to pay for the cleanup of hazardous sites using funds obtained through taxes on certain businesses
4. It allowed the government to recover the cost of cleanup from the persons who were (even remotely) responsible for hazardous substance releases
- Superfund provides that when a release or a threatened release of hazardous chemicals from a site occurs, the following persons may be held responsible for cleaning up the site :
1. The person who generated the wastes disposed of at the site.
2. The person who transported the waste to the site.
3. The person who owned or operated the site at the time of the disposal.
4. The current owner or operator
- Superfund imposes strict liability on potentially responsible parties, and that liability cannot be avoided through transfer of ownership
- selling a site where hazardous wastes were disposed of does not relieve the seller of liability, and the buyer also becomes liable for cleanup
- liability also extends to businesses that merge with or buy corporations that have violated CERCLA
- although a parent corporation is not automatically liable for the violations of its subsidiary, it can be held liable if the subsidiary was merely a shell company of if the parent corporation participated in or controlled the facility
- a PRP who generated only a fraction of the hazardous waste disposed of at a site may nevertheless be liable for all of the cleanup costs
- CERCLA authorizes a party who has incurred cleanup costs to bring a "contribution action" against any other person who is liable or potentially liable for a percentage of the costs
- ways for a business to minimize its potential liability under Superfund is to :
- conduct environmental compliance audits of its own operations regularly
- perform internal investigations of its own property to determine whether any environmental hazards exist
- EPA encourages companies to conduct self audits and promptly detect, disclose, and correct wrongdoing (companies that do are subject to lighter penalties)
- under EPA guidelines, EPA will waive all fines if a small company corrects environmental violations within 180 days after being notified of the violations (or 360 days if pollution prevention techniques are involved
- innocent landowner defense : an innocent property owner may be able to avoid liability by showing that he or she had no contractual or employment relationship with the person who released the hazardous substance on the land
- to assert the defense, the landowner must be able to show that at the time the property was acquired, she or he had no reason to know that hazardous substances had been disposed of on it
- landowner must show that at the time of the purchase, he or she undertook all appropriate investigation into the previous ownership and uses of the property to determine whether there was a reason to be concerned about hazardous substances