Chapter 1. Introduction 44 results (showing 5 best matches)
- As the title of this book suggests, the law governing dangerous substances distinguishes broadly between
- The terminology in this area is far from uniform and, as discussed below, each statute typically describes its regulated substances differently (e.g., “toxic pollutants,” “toxic materials,” “extremely hazardous substances,” “hazardous substances,” and “hazardous wastes”). Broadly speaking, however,
- In contrast,
- hazardous wastes
- Role for State Law:
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Chapter 13. Common Law Approaches to Hazardous Wastes and Toxic Substances 128 results (showing 5 best matches)
- The common law has not yet developed unique claims for relief for injuries caused by hazardous wastes and toxic substances. Rather, it simply applies the classic common law grounds for liability to the hazardous wastes and toxic substances context. The following discussion highlights the most frequently litigated claims and some of the principal defenses.
- This chapter briefly introduces students to the principal common law liability issues presented by hazardous wastes and toxic substances. It assumes some familiarity with basic tort concepts of fault, causation, remedies, and judicial procedure. It focuses on the unique problems for the tort system caused by claims of injury allegedly resulting from contamination by hazardous wastes and exposure to toxic substances.
- Despite the contemporary importance of such statutes as TSCA, FIFRA, EPCRTKA, CWA, CAA, SDWA, RCRA and CERCLA, and the perceived limitations of the common law system, the common law continues to play an important role in responding to harms created by hazardous wastes and toxic substances. Indeed, for the most part, in enacting its statutes, Congress did not supplant the common law liability system. Rather, Congress built upon it. Where, despite the regulatory schemes, a person suffers injury from the use or improper disposal of hazardous substances, common law liability for personal injury or property damage remains an important legal remedy. For example, while CERCLA provides property decontamination help, only the common law will reimburse the land owner either for a decline in property value or for personal injuries caused by the contamination. Similarly, while OSHA limits work place exposure to toxic substances, only the common law provides a worker
- In addition to the complexities hazardous wastes and toxic substances present for tort law, they pose substantial challenges to the courts’ ability to process the complicated lawsuits. In particular, the number of parties and the complexity of the proof process have led courts to experiment with different approaches to managing a lawsuit.
- In response to these inadequacies, Congress has largely placed EPA in charge of the legal efforts to clean up hazardous wastes and prevent harm from exposure to toxic substances. In theory, drawing on its technical expertise, EPA can promptly and efficiently create and apply uniform standards. Of course, the statutory and regulatory responses to the problems of hazardous substances raise their own technical, legal, and policy questions. Nevertheless, they represent a qualitatively different approach to the problems than possible under the common law.
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Chapter 6. Regulating Disposal of Hazardous Wastes: The Resource Conservation and Recovery Act (RCRA) 250 results (showing 5 best matches)
- EPA has promulgated regulations that specifically list hundreds of materials as hazardous wastes. §§ 261.30 to 261.33. A substance can become listed for any of three reasons: (1) it exhibits one of the four characteristics of hazardous waste, described below; (2) it has a low lethal dose; or (3) it contains a listed toxic constituent and is capable of causing human health or environmental harm. § 261.11. Substances with a low lethal dose are labeled “acute hazardous wastes.” § 261.11(a)(2). Substances listed because of their toxic constituents are known as “toxic wastes.” § 261.11(a)(3). The EPA maintains a list of these constituents in Appendix VIII to Part 261. (This list is also used for the “Land Disposal Restrictions” discussed later in this chapter.)
- Since Subtitle C applies only to those “hazardous wastes” that are also “solid wastes,” the analysis begins with the regulatory definition of “solid waste.” Only if a substance meets the definition of “solid waste” will it then become necessary to ask if it is also a “hazardous waste.” In simplest terms, the identification of a substance as a Subtitle C “hazardous waste” involves seven steps:
- If a substance is not a “solid waste,” as defined in the Subtitle C regulations, it will ordinarily not be a hazardous waste. (Special attention must be given to some materials that are treated as hazardous wastes, even if not technically solid wastes, under what are known as the “contained in” policy. This policy is considered below, under the “Hazardous Wastes” subheading.) A substance may not meet the regulatory definition of “solid waste” either because a specific exclusion applies, or because the substance has not been “discarded” within the meaning of the regulations.
- The fourth characteristic—toxicity—is more complicated. The student or practitioner must first distinguish “ ” toxic wastes from the ” toxic wastes described above. The latter wastes are those that contain harmful concentrations of a specific “hazardous waste constituent” listed in Appendix VIII to Part 261. In contrast, to establish that a waste shares the of toxic waste, a person must employ the “toxicity characteristic leaching procedure” (TCLP). See § 261.24 (external reference). Under this procedure, extraction liquids are poured over samples of the waste in a laboratory and the resulting extract, known as “leachate,” is analyzed. If the leachate contains one or more of forty materials in amounts that exceed specified concentrations, the waste demonstrates the toxicity characteristic.
- • Even if the substance is neither specifically listed nor exhibits a characteristic of hazardous wastes, is it nevertheless considered a hazardous waste by virtue of its combination with another waste, its derivation from another hazardous waste, or its containment in another waste?
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Chapter 2. Risk and Scientific Uncertainty 60 results (showing 5 best matches)
- Yet the unique risks posed by hazardous wastes and toxic substances have generated extraordinary public fear. Why? Part of the answer, of course, is the severity of the harm which these substances can cause: death or serious injury to humans (and the environment) on a large scale. A single release of toxic gas, for example, killed thousands of people in Bhopal, India. Similarly, these substances cause innumerable cancer cases throughout the world each year. The rest of the answer is found in factors which affect the public’s perception of this risk. In general, people tend to overestimate the likelihood that hazardous wastes and toxic substances will actually harm them. This is because: (1) the risk is unfamiliar to them; (2) they have not voluntarily
- Nuisance and other common law doctrines failed to protect the public from the dangers of hazardous wastes and toxic substances. As a result, this area is now dominated by federal statutes; common law doctrines play only a supporting role, as discussed in Chapter 13. In part, the common law failed because of its simplistic approach to risk.
- In contrast to the common law view, the regulatory approach to risk focuses on preventing potential harm from occurring. Thus, Congress addressed the risk posed by hazardous wastes and toxic substances by empowering EPA and other federal agencies to regulate them without conclusive evidence of proven harm to human health or to the environment. The typical federal statute in this area vests broad discretion in the responsible agency to determine both: (1) which substances to regulate; and (2) which regulatory tools to use. For example, suppose that EPA is concerned about the health risks of “exomine,” a hypothetical chemical used in maintaining bakery equipment. Using the standards contained in the Toxic Substances Control Act (see Chapter 3) or other applicable federal statutes, EPA could decide whether to regulate exomine and, if so, how.
- The foundational assumption of the common law system—that information existed to determine truth—did not apply in the special case of the risks posed by hazardous wastes and toxic substances. These substances presented the problem of scientific uncertainty. In many cases, the data necessary to evaluate the health and environmental risks of a particular substance simply ; they lay beyond the frontiers of human knowledge. Moreover, when information was available it was often incomplete and inconsistent. Yet the common law system largely ignored this dilemma, taking refuge in familiar concepts such as the burden of proof.
- The common law approach focused almost exclusively on proving the
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Chapter 12. Additional Hazardous Waste Cleanup Options Under RCRA and CERCLA 55 results (showing 5 best matches)
- At first glance, the most meaningful distinction between the respective jurisdictional definitions appears to be that between CERCLA’s “hazardous substances” and RCRA’s “hazardous wastes.” The CERCLA term seems to cover a broader range of substances than the RCRA term. Indeed, CERCLA “hazardous substances” expressly include RCRA Subtitle C regulated hazardous wastes. In addition, they include other substances regulated under the Clean Air, Clean Water, and Toxic Substances Control Acts. CERCLA § 101(14). Thus, materials excluded from RCRA’s definitions of solid and hazardous waste, or simply not within those definitions because they have not been discarded, may still be subject to CERCLA. Finally, in theory anyway, CERCLA applies to hazardous substances regardless of their concentration in contaminated environmental media; a substantial portion of RCRA hazardous wastes, however, are regulated under Subtitle C only because they exist in specific concentrations that are dangerous.
- Except for the areas where CERCLA or RCRA exclusions apply, the practical differences between a CERCLA “hazardous substance” and a RCRA Subtitle C “hazardous waste” are not very meaningful. The realm of RCRA Subtitle C regulated substances has grown through the addition of the “hazardous constituents” added under the TCLP and LDRs discussed in Chapter 6. Similarly, the RCRA corrective action program also extends beyond “hazardous waste” to “hazardous constituents.” Moreover, while CERCLA theoretically authorizes cleanup of hazardous substances regardless of their concentrations, at least some courts have been willing to require proof that the substances existed in sufficient concentrations to require EPA or another responsible party to incur response costs. See, e.g., Amoco Oil Co. v. Borden, Inc. (5th Cir.1989); contra, United States v. Alcan Aluminum Corp. (N.D.N.Y.1991).
- The few cases that have construed these elements have made a plaintiff’s case relatively easy. As to the first element, courts have concluded generously that “imminent and substantial endangerment” includes cases where harm is merely threatened, even if as yet unrealized. See, e.g., United States v. Conservation Chemical Co. (W.D.Mo.1985). Thus, plaintiff need not show that an “emergency” exists. United States v. Waste Industries, Inc. (4th Cir.1984). As to the second element, the actionable wastes are not restricted to the hazardous wastes regulated under RCRA Subtitle C. (For a discussion of the definition of “hazardous waste” under the Subtitle C regulations, see Chapter 6.) Section 7003 is not part of Subtitle C (“Hazardous Waste Management”); rather, it is found in Subtitle G (“Miscellaneous Provisions”). Thus, when determining the scope of EPA’s authority under § 7003, courts apply the broad, general
- In several areas, however, RCRA can authorize a cleanup where CERCLA cannot. Most prominently, CERCLA excludes “petroleum” from its “hazardous substance” jurisdiction; no such exclusion, however, applies under RCRA. Moreover, RCRA § 7003 authorizes cleanup of “solid waste” that poses an “imminent and substantial endangerment;” in theory, it could require cleanup of waste that, while “dangerous,” was neither “hazardous” under RCRA, nor a “hazardous substance” under CERCLA.
- The statute addresses a release of “hazardous waste or constituents.” “Hazardous waste” is defined according to the complicated Subtitle C regulations addressed at length in Chapter 6. As discussed in that chapter, that definition, in turn, depends on the regulatory definition of “solid waste.”
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Preface 4 results
- The “law of hazardous wastes and toxic substances” has only emerged recently as a subject of law school courses and as a field of specialization for attorneys. The law in this area is extraordinarily complex and rapidly evolving. Part of its attraction undoubtedly lies in the overlap of law, science, economics, and public policy which it presents. In addition, its rapid development has generated a growing demand for attorneys who are able to navigate its perils.
- This book is primarily designed to provide law students with a concise and coherent overview of the subject. It may also be useful to attorneys seeking an introduction to the area. As with any book which attempts to simplify a complex subject, much has necessarily been summarized. The text of the principal federal statutes addressed in this book occupy over 1,000 single-spaced pages in West’s
- Consistent with the custom among courts and attorneys in the field, this book generally uses the popular names of the key federal statutes rather than their more formal names (e.g., the “Clean Water Act” rather than the “Federal Water Pollution Control Act”). Also, it generally cites to sections of the uncodified bills rather than to the codified versions (e.g., “Clean Water Act § 311” rather than “33 U.S.C. § 1321”). Finally, as used in the book “EPA” refers to the federal Environmental Protection Agency, not to a state agency with a similar name.
- Many people helped make this book possible. We particularly wish to thank Dean Elizabeth Rindskopf Parker and Associate Dean Christine Manolakas for their constant support. Most importantly, we thank our families for their encouragement and patience.
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Chapter 7. Introduction to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 79 results (showing 5 best matches)
- Moreover, CERCLA extends to mixtures of hazardous and nonhazardous materials. As the Second Circuit observed in B.F. Goodrich Co. v. Murtha (2d Cir.1992): “When a mixture or waste solution contains hazardous substances, that mixture is itself hazardous for purposes of determining CERCLA liability.” In the early decision of United States v. Wade (E.D.Pa.1983), for example, the court suggested that a penny might be considered a hazardous substance because it is a mixture which includes copper, a toxic pollutant regulated under the CWA and thus a CERCLA hazardous substance.
- The universe of CERCLA “hazardous substances” is extremely broad; it includes RCRA hazardous wastes and much more. It exceeds the RCRA universe in two key respects. First, the scope of CERCLA is not limited to wastes. As the term “substance” suggests, CERCLA potentially extends to virgin materials, consumer products, manufacturing byproducts, wastes, and everything in between.
- One of the most controversial aspects of CERCLA is the apparent judicial consensus that any amount of hazardous substance, however minute, is enough to trigger liability. In other words, CERCLA is concerned only with the of a hazardous substance, not with its . Appearing as a defendant in a pair of notable cases—City of New York v. Exxon Corp. (S.D.N.Y.1990), and United States v. Alcan Aluminum Corp. (N.D.N.Y.1991)—Alcan Aluminum Corporation pointed out that the concentration of hazardous substances in its wastes was lower than those found in milk, breakfast cereal, or even the paper and ink which comprised the government’s own brief. Although
- CERCLA also extends to potential future releases, described variously as a “threat of release” (§ 104) or “threatened release” (§§ 106, 107). These phrases are not defined by CERCLA and their meanings are thus less clear. The leading case on the point is New York v. Shore Realty Corp. (2d Cir.1985), where the Second Circuit noted that the storage of toxic substances in corroding and deteriorating tanks, the owner’s lack of expertise in handling hazardous wastes, and even the failure to license the facility, amounted to a “threat of release.” Similarly, in United States v. Northernaire Plating Co. (W.D.Mich.1987), the court found a threat of release based on the presence of hazardous substances at the site, combined with the “unwillingness of any party to assert control over the substances.”
- Second, § 101(14) defines “hazardous substance” mainly by incorporating lists of substances regulated either under RCRA or three other federal environmental statutes. Any substance which has already been designated as hazardous or toxic under specified provisions of the CAA, CWA, RCRA, or TSCA is automatically designated a hazardous substance under CERCLA. In addition, if a substance “may present substantial danger to the public health or welfare” when released into the environment, EPA may specially designate it as a hazardous substance under § 102(a). The § 102(a) list, containing almost 2,000 hazardous substances, is located at 40 C.F.R. § 302.4, Table 302.4. Substances regulated under CERCLA range from the familiar (e.g., arsenic, lead, mercury, and silver) to the esoteric (e.g., isopropanolamine dodecylbenzenesulfonate, toluene diisocyanate, and 2,3,7,8–tetrachlorodibenzo-p-dioxin).
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Chapter 4. Regulating the Use of Toxic Substances 54 results (showing 5 best matches)
- The Federal Hazardous Substances Act, 15 U.S.C.A. § 1261 et seq., authorizes the Consumer Products Safety Commission to regulate a wide range of consumer products. As a prerequisite to regulation, the Commission must designate the product a “hazardous substance.” The definition of “hazardous substance” under the Act has two components. First, the substance must be toxic, corrosive, flammable, combustible, an irritant, a strong sensitizer, or generate pressure through decomposition, heat, or other means. In this context, “toxic” means a substance which “has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface.” § 1261(g). Second, the substance must have the ability to cause “substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use.” § 1261(f)(1)(A). The process for designating a hazardous substance is quite formal; the Act...
- The Act applies to the transportation in “commerce” (by railroad, highway, air, water, pipeline, or otherwise) of any “hazardous material.” If transporting a particular material “in a particular amount and form may pose an unreasonable risk to health and safety or property,” DOT may designate it as a hazardous material under § 5103(a). Over 2,000 substances (including toxic, explosive, radioactive, flammable, combustible, and corrosive materials) have been so designated; the current list appears at 49 C.F.R. § 172.101. In particular, all RCRA “hazardous wastes” and all CERCLA “hazardous substances” are also deemed “hazardous materials” under HMTA.
- Transportation and handling increase the risks posed by toxic substances and hazardous wastes. The truck carrying hazardous wastes may become involved in a traffic accident; the railroad car containing chlorine may derail. The Hazardous Materials Transportation Act, 49 U.S.C.A. § 5101 et seq., administered by the Department of Transportation (DOT), is the most important federal statute regulating the transportation of “hazardous materials.” Other federal agencies also empowered to regulate aspects of such transportation (e.g., EPA and OSHA) have typically deferred to DOT’s broader authority.
- After a toxic substance is allowed to enter the stream of commerce, how does federal law regulate its use? Certainly use restrictions may be imposed by EPA under FIFRA or TSCA as a condition of market access, as discussed in Chapter 3. Beyond this gateway, however, the use of toxic substances is governed by a bewildering array of federal statutes, each oriented toward a different aspect of the issue. Moreover, adding to the confusion, each is typically administered by a different federal agency, and thus affected by that agency’s agenda, priorities, and constituencies.
- The main regulatory tool authorized by the Act is product labeling. All hazardous substances intended for “use in the household or by children” must bear a label which includes: (1) appropriate warning words (e.g., “DANGER” on highly toxic substances); (2) description of the principal hazards (e.g., “Vapor Harmful”); (3) precautionary measures describing actions to be taken or avoided; (4) first aid instructions if appropriate; and (5) handling and storage instructions. § 1261(p). For example, after animal bioassays demonstrated that methylene chloride could cause cancer, the Commission designated it a hazardous substance and mandated labeling for household cleaning fluids, detergents, and various other products which contained it. Much like FIFRA, the Act preempts any state cause of action that challenges the adequacy of product labeling, such as negligent failure to warn, unless the labeling itself violates FHSA. See Richards v. Home Depot, Inc. (2d Cir.2006).
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Chapter 3. Regulating the Production and Sale of Toxic Substances 131 results (showing 5 best matches)
- Most federal environmental law is oriented toward dealing with toxic substances as wastes (e.g, under RCRA, CERCLA, the Clean Water Act, and the Clean Air Act). Market access control statutes such as FIFRA and TSCA focus instead on . This focus offers several advantages as a strategy for regulating toxic substances. In many instances, it is the most effective means to prevent irreparable “downstream” injury such as loss of human life or major environmental degradation; if a product never reaches the market, it cannot cause harm. This approach also reduces the burden of hazardous waste cleanup; if a product never reaches the market, it cannot become a waste. Enforcement is facilitated because the number of producers is small; and local political opposition is minimized because this technique does not involve land use restrictions. Finally, because market access is inextricably linked to interstate commerce, the constitutional basis for federal regulation is well-established. Despite...
- Two key federal statutes regulate the entry of toxic substances into the market: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), dealing with pesticides, and the Toxic Substances Control Act (TSCA), covering most other chemical substances. Despite significant differences, these “gatekeeper” statutes share certain features:
- The foundation of toxic substance regulation is market access control. Pesticides and many other toxic substances are manufactured as valuable products. Consider lemdipyle, a hypothetical pesticide that is successfully used to eradicate aphids, beetles, moths, and similar insects from almost one hundred food crops. Yet lemdipyle is so toxic to humans and other mammals that even a comparatively low dose can cause death; it is a leading cause of farm worker poisoning. Under what circumstances should we allow the manufacture and sale of deadly products like lemdipyle?
- Pesticide regulation presents a classic paradox: to what extent should we the environment against substances designed to the environment? Pesticides are specialized toxic substances which are intentionally introduced into the environment in order to kill or otherwise affect particular plant or animal species. Most pesticides, however, are toxic to both the “target pests” and a wide spectrum of non-target species, sometimes including humans. Over
- To what extent can state or local governments regulate chemical substances? TSCA § 18 permits such non-federal regulation in three contexts. First, if EPA has already issued a TSCA rule or regulation concerning a particular substance, a state still may prohibit the use of that substance within its borders. Next, even if EPA is actively regulating a substance under TSCA, it has the power to adopt a rule that allows state or local governments to adopt standards that provide a “significantly higher degree of protection” than TSCA. Finally, if EPA is not currently regulating a substance, state and local governments are free to do so. In fact, given the weakness of TSCA, states are increasingly asserting their authority to regulate a variety of substances, including toxic substances such as mercury.
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Chapter 9. CERCLA: Cost Recovery Actions Brought by Government 183 results (showing 5 best matches)
- Section 122(g) encourages prompt “de minimis settlements,” that is, settlements with PRPs whose involvement in the site is minimal based on both the volume and toxicity of the wastes. For example, a generator PRP who contributed only a small volume of hazardous substances to the site (e.g., 20 barrels) in relation to the contributions of other PRPs (e.g., 20,000 barrels) will usually qualify for a de minimis settlement. The line between de minimis and non-de minimis parties is determined on a site-by-site basis. Although this cutoff point has varied over time, the most commonly used standard allows a de minimis settlement where the defendant has contributed no more than 1% of the total volume of hazardous substances at the site. Thus, any PRP who contributed 200 or fewer barrels to a 20,000 barrel site would probably be eligible for a de minimis settlement. In addition to these volume standards, a PRP will qualify for de minimis treatment only if its wastes are not significantly...
- One of the most troublesome “arranger” issues is distinguishing between the
- Conversely, the defense failed in where the court found reasonable precautions had not been taken. There, the defendant sewer authority actually knew that: (a) the dry cleaner was pouring hazardous substances into the sewer; and (b) “cracks were present in its sewer.” Nonetheless, as the court noted, it “took no precautions— such as mending the pipes or banning the discharge of toxic organics—against the foreseeable result that hazardous substances such as PCE would be discharged into the sewer.”
- The most common pattern of arranger liability involves the “generator” defendant—the factory, refinery, smelter, or other industrial complex which generates wastes containing hazardous substances. The generator who hires a transporter to haul its wastes acquires PRP status as an arranger. Similarly, when a generator contracts with a treatment or disposal facility to dispose of its wastes, it also becomes an “arranger.” If such hazardous substances are later released—even due to unforeseeable events—the generator who has exercised all due care will still be held strictly liable.
- A generator may be liable for a release even absent proof that its own wastes were released. In the leading case of United States v. Monsanto Co. (4th Cir.1988), Monsanto and other generator defendants argued that the plaintiff United States had failed to establish their wastes were still present at the facility when the release occurred. Noting the “technological infeasibility of tracing improperly disposed of waste to its source,” however, the Fourth Circuit recognized that such a burden would cripple the prosecution of CERCLA cases involving multiple generators; it rejected the proposed “proof of ownership” standard. The court held instead that a plaintiff need only prove that: (1) the generator defendant’s waste was shipped to the site; and (2) “hazardous substances similar to those contained in the defendant’s waste remained present at the time of the release.” In theory, the defendant can avoid liability by proving that its wastes were not actually released; in practice,...
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Title Page 4 results
Outline 225 results (showing 5 best matches)
- Chapter 13. Common Law Approaches to Hazardous Wastes and Toxic Substances
- C. Regulation of Hazardous Wastes and Toxic Substances
- B. Defining “Hazardous Wastes” and “Toxic Substances”
- 1. Hazardous Substances and Consumer Products: The Federal Hazardous Substances Act (FHSA)
- ii. Does the Waste Exhibit a “Characteristic” of Hazardous Waste?
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Chapter 8. CERCLA: Cleanup Performed by Government 75 results (showing 5 best matches)
- The definition is qualified by essentially the same list of exclusions which apply to “hazardous substance,” discussed in Chapter 7. Accordingly, in many instances, the same substance can be characterized both as a “hazardous substance” and a “pollutant or contaminant,” allowing the government entity to proceed under either approach. But the distinction between the two concepts is critical for purposes of a later cost recovery action. Under § 107(a), only response costs stemming from a “hazardous substance” can be recovered. As the D.C. Circuit noted in Eagle–Picher Industries, Inc. v. EPA (D.C.Cir.1985), “the owner of a facility may be liable for cleanup of a release of a ‘hazardous substance,’ but not for the cleanup of a release of a ‘pollutant or contaminant.’ ” Accordingly, given the option, government entities have uniformly proceeded under the “hazardous substance” approach.
- If a hazardous substance is released in sufficient quantity from a facility or vessel, § 103(a) requires the “person in charge” to report the release immediately. As the Second Circuit observed in United States v. Carr (2d Cir.1989), this provision ensures “that the government, once timely notified, will be able to move quickly to check the spread of a hazardous release.” The threshold “reportable quantity” varies from one to 5,000 pounds, depending upon the hazardous substance involved. EPA has established reportable quantities for many hazardous substances at 40 C.F.R. § 302.4; if a hazardous substance is not included in this list, § 102(b)
- Removal action may be undertaken where EPA or another agency finds a “threat to the public health or welfare of the United States or the environment.” 40 C.F.R. § 300.415(b). This decision is based on factors including: (1) actual or potential exposure of human populations, animals, or the food chain to hazardous substances; (2) actual or potential contamination of drinking water supplies or sensitive ecosystems; (3) hazardous substances in bulk storage containers which may pose a threat of release; (4) high levels of hazardous substances in soils which may migrate; (5) weather conditions that may cause such migration; and (6) the threat of fire or explosion. 40 C.F.R. § 300.415(b)(2). Once the agency determines that removal action is appropriate, action shall “begin as soon as possible to abate, prevent, minimize, stabilize, mitigate, or eliminate the threat * * *.” 40 C.F.R § 300.415(b)(3).
- The “blueprint” for cleanup action under § 104 is the National Oil and Hazardous Substances Pollution Contingency Plan, commonly called the “National Contingency Plan” or “NCP.” It is a set of federal regulations located at 40 C.F.R. Part 300 “that identifies the methods for investigating contamination and the criteria for determining appropriate cleanup actions.” Arc Ecology v. United States (9th Cir.2005). An earlier version of the NCP existed before CERCLA was enacted; it established procedures to facilitate cleanups of oil and hazardous substance spills into navigable waters, pursuant to CWA § 311. Once CERCLA became effective, its § 105(a) directed EPA to revise the NCP. In particular, EPA was required to add a new section to the NCP which established “procedures and standards” for CERCLA response actions, known as the “National Hazardous Substance Response Plan;” this section may be found at 40 C.F.R. §§ 300.400 et seq.
- If these conditions are met, the government is authorized to take removal action or remedial action in a manner “consistent with” the NCP. The first two elements above—“hazardous substance” and “release” or threat of release—are discussed in Chapter 7. The requirement of NPL listing, together with the other limitations imposed by the NCP, are discussed in this chapter.
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Chapter 5. Regulating Toxic Pollution Under the Clean Water, Clean Air and Safe Drinking Water Acts 158 results (showing 5 best matches)
- Despite decades of regulation under the Clean Water, Clean Air, and Safe Drinking Water Acts, Americans continue to release staggeringly large amounts of toxic pollutants into the ambient water and air. For example, according to EPA’s 2004 TRI, in that year, 1.55 pounds of hazardous pollutants were emitted into the atmosphere alone in the United States. (In contrast, surface waters received a substantially smaller 241 pounds of toxic pollutants.) These figures reflect both substantial progress and substantial challenges remaining in the control of harmful releases of toxic substances into the ambient environment.
- Understanding the regulation of toxic substances under the three statutes explored in this chapter develops in three steps. The first step considers the specific provisions addressing toxic substances within each Act. For the Safe Drinking Water Act, 42 U.S.C.A. § 300f et seq., identification of these provisions is easy, as virtually the entire Act addresses such substances. For the Clean Water Act, 33 U.S.C.A. § 1251 et seq., and the Clean Air Act, 42 U.S.C.A. § 7401 et seq., however, that task is more complicated, as provisions governing toxic substances are enmeshed in legislation that addresses a broader range of pollutants. Because of this, for these two Acts a second step must be taken. Understanding their approaches to toxic substances requires some appreciation of the two overall statutory schemes. Accordingly, the following discussion
- It is not enough, however, to understand each Act in isolation. Rather, for all three Acts, a third step must occur. This entails consideration of the relationship of the particular Acts to other laws governing toxics. In particular, it involves the relationship between these Acts and the two main laws governing cleanup of hazardous wastes: the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Thus, this last step requires consideration of the materials in Chapters 6 through 12.
- Like the Clean Water Act, the Clean Air Act’s toxic provisions: (1) identify specific substances that must be regulated as toxic; (2) require categorization of sources into various classes and categories; (3) impose technology based standards for emitters of those substances; and (4) contemplate enforcement through a state run permit system.
- Categorization of a pollutant as a toxic pollutant may occur in three ways. First, the Act identifies 65 substances that must be regulated as toxics. § 307(a)(1); 40 C.F.R. § 401.15. Second, it specifies six factors that EPA must consider when revising the list to add or remove particular substances. In such revisions, EPA must “take into account [the] toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms.” § 307(a)(1). This second provision interacts with the third: a broad definition of toxic pollutants as those that “will, on the basis of information available to the [EPA] cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in [any] organisms or their offspring.” §...
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Chapter 14. Avoiding Liability for Hazardous Substance Cleanup Costs 28 results (showing 5 best matches)
- In general, liability for hazardous substance cleanup can be discharged in bankruptcy. The landmark Supreme Court decision recognizing this rule is Ohio v. Kovacs (S.Ct.1985). involved a hazardous waste disposal site operated in violation of state environmental laws. The state of Ohio obtained an injunction directing the corporate owner and respondent Kovacs, its chief executive officer, to clean up the contaminated site. When Kovacs filed bankruptcy instead, the state argued that his obligation under the injunction was not a “debt” subject to discharge under the Bankruptcy Code. However, emphasizing that a receiver now controlled the property, such that in effect the only performance sought from Kovacs was the payment of money to defray cleanup costs, the
- Ultimately, the only sure strategy for avoiding liability is to avoid any link, direct or indirect, with hazardous substances. Indeed, one of CERCLA’s implicit purposes is to discourage the generation of such substances. The risk of multimillion dollar liability, for example, might provide a waste generator with a financial incentive to alter its operating procedures to minimize or eliminate hazardous wastes. Ironically, however, this avoidance strategy may impair cleanup efforts in some instances. As the growing “brownfields” program suggests, the basic CERCLA liability structure deters the purchase, cleanup, and redevelopment of contaminated facilities.
- Can a liable party recover cleanup costs from its insurance carrier? The sweeping new liability created by RCRA and CERCLA prompted a wave of insurance claims which stunned the insurance industry. Over the years, insurers had issued millions of standard form policies without contemplating liability for hazardous substance cleanup costs. As a result, most existing policies did not either clearly cover or clearly exclude such claims. The resulting deluge of litigation has produced a substantial (if somewhat inconsistent) body of state law on the subject. Some insured parties have been successful in recovering cleanup costs; most have failed. Litigation based on these early policy forms will continue in the future. However, during the 1980s, standard insurance policy forms were amended to expressly exclude coverage for hazardous substance cleanup costs, effectively barring such claims.
- It is now well-settled that hazardous substance cleanup costs are not covered by standard title insurance policies. The leading case is Chicago Title Insurance Co. v. Kumar (Mass.App.1987). It held that the release of hazardous substances on the insured’s land was not covered by the insuring clauses of his policy as a “defect in or lien or encumbrance on” his title. The court observed that the protection under this standard policy clause extended only to title defects, liens, or encumbrances which existed on the date the policy was issued, not to “the mere possibility that the Commonwealth may attach a future lien.” Similarly, the court reasoned that the mere contamination of the insured’s property did not trigger the policy clause insuring against unmarketability of title; it noted that this clause insures only title, not the physical condition of the land. Standard title insurance policies issued after the early 1990s normally contain a provision embodying this non-liability rule;...
- The Supreme Court explored this issue in Midlantic National Bank v. New Jersey Department of Environmental Protection (S.Ct.1986). There, Quanta Resources Corporation accepted toxic PCB-laden oil at its New Jersey and New York waste oil processing facilities in violation of state environmental laws. Stored in deteriorating containers, this waste oil contaminated the subsoil, presenting risks which included “genetic damage or death through personal contact.” After Quanta filed bankruptcy, the trustee abandoned the facilities despite the protests of the affected states that abandonment would endanger the public. Reasoning that Congress did not intend for the abandonment power to abrogate state and local laws designed to protect public health and safety, the Supreme Court held that the abandonment was improper. It warned, however, that the “abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and...
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Chapter 10. CERCLA: Cleanup Mandated by Government 36 results (showing 5 best matches)
- The permissible scope of § 106(a) orders is quite broad. Employers Insurance of Wausau v. Clinton (N.D.Ill.1994) illustrates the point. There, EPA ordered Employers Insurance of Wausau (EIW) and others to clean up a site contaminated with PCBs and various volatile organic compounds (VOCs). Although EIW arguably was a responsible party as to the PCB-contaminated areas (having arranged for the transportation of PCB wastes to the site), it had no connection to the VOCs problem. EPA’s order directed EIW to clean up hazardous substances at the facility, not merely the PCB contamination. In ensuing litigation, EIW asserted that EPA could not order a party to clean up waste for which it is not even potentially responsible. But the court rejected this argument, observing that “it is not inconsistent with the broad goals of the statute to require a party who is potentially liable for some contamination at a particular site to clean up the entire site, and then petition the government for
- This section was partly derived from RCRA § 7003 (discussed in Chapter 12), which authorizes the federal government to order responsible persons to clean up hazardous waste contamination if an “imminent and substantial endangerment to health or the environment” may occur. The early case law interpreting § 7003 indicated that it applied only to spill emergencies at active, RCRA-regulated facilities. The initial § 106 decisions seemed to suggest a similar limitation. Most courts, however, quickly recognized that the language of § 106 encompassed both active and inactive sites.
- Section 106 provides the federal government with an alternative method for meeting CERCLA’s remediation goal:
- The first sentence of § 106(a) uses familiar CERCLA terms in describing the conditions which trigger liability: “an actual or threatened release” of a “hazardous substance” from a “facility.” But the language of the section is silent on two key issues: (1) ? and (2)
- • that members of the public or the environment “may be exposed to a risk of harm by virtue of a release or threatened release of hazardous substances”
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Chapter 11. CERCLA: Actions Brought by Private Parties 124 results (showing 5 best matches)
- • “the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste;”
- The specific elements of a private cost recovery action under § 107 and a contribution action under § 113 are described in more detail below. For the most part, the distinctions between the two are rather inconsequential. Thus, in both cases, liability depends upon: (1) plaintiff’s proof that the defendant is a responsible party under the CERCLA liability schemes; (2) plaintiff’s proof that there was a release or threat of a release of a CERCLA regulated hazardous substance from a facility that caused the incurrence of response costs, and (3) the defendant’s inability to establish any of the statutory defenses. See, e.g., United States v. Taylor (M.D.N.C.1995).
- A private party will only be able to recover under § 107 if the basic elements of CERCLA liability have been met. Thus, as described in Chapters 7 through 10: (1) there must have been a release or threat of a release of a CERCLA regulated hazardous substance from a facility that caused the incurrence of response costs by plaintiff; and (2) the defendant must be a PRP. In addition, the defendant must be unable to fit within any of the statutory defenses to CERCLA liability. If these circumstances are met, for the class of “persons” specified, § 107(a)(4)(B) authorizes recovery of the “necessary costs of response” incurred that are “consistent with the national contingency plan.”
- • “the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;”
- • “the ability of the parties to demonstrate that their contribution to a discharge release or disposal of a hazardous waste can be distinguished;”
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Cover Page Part 2 143 results (showing 5 best matches)
Copyright Page 4 results
- Nutshell Series, In a Nutshell
- Thomson/West have created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson/West is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Table of Acronyms 28 results (showing 5 best matches)
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Dean and Professor of Law, Stanford Law School
- Professor of Law, University of San Diego Professor of Law, University of Michigan
- Professor of Law, Yale Law School
- Professor of Law, University of California, Berkeley
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- Publication Date: July 20th, 2007
- ISBN: 9780314167309
- Subject: Toxic Torts/Hazardous Materials
- Series: Nutshells
- Type: Overviews
- Description: The law of hazardous wastes and toxic substances is complex and constantly changing. It is a specialized field involving the overlap of law, science, economics, and the public policy it presents. This text covers the risks involved with and the regulation of the production, sale, use, and disposal of toxic substances. In addition, it briefly explores the special problems of nuclear materials.