The Law of Hazardous Wastes and Toxic Substances in a Nutshell
Authors:
Sprankling, John G. / Salcido, Rachael E.
Edition:
3rd
Copyright Date:
2018
25 chapters
have results for hazardous waste in a nutshell
Chapter 6 Regulating Disposal of Hazardous Wastes: The Resource Conservation and Recovery Act (RCRA) 252 results (showing 5 best matches)
- Under the “mixture” rule, EPA treats an entire mixture of a solid waste and a hazardous waste as a hazardous waste, even if the solid waste standing alone would not be a Subtitle C hazardous waste. § 261.3(a)(2)(iv). If, however, the mixture does not demonstrate any characteristics of hazardous wastes, it is not treated as a hazardous waste.
- In three instances, EPA considers solid wastes or other materials to be hazardous wastes even if the solid waste considered alone would not meet either of the hazardous waste requirements. These circumstances apply to: (1) mixtures of solid and hazardous waste; (2) materials derived from hazardous waste; and (3) hazardous waste that is “contained in” contaminated soil or water.
- Under Part 260, a person can petition EPA to exclude wastes produced at a particular facility from regulation as a hazardous waste. § 260.22. This is known as a “delisting” petition. In effect, it asks EPA to determine that the particular waste produced by a particular facility is hazardous, even though it would otherwise meet the definition. The exclusion applies only to a waste specifically listed by EPA as a hazardous waste, or a mixture containing such a listed hazardous waste; it does not apply to a waste that is regulated as hazardous because it exhibits a characteristic of a hazardous waste. See § 260.22(a)(2), (b). (These two classes of hazardous wastes are discussed immediately below.) Such a petition must demonstrate that relevant waste “does not meet any of the criteria under which the waste was listed as a hazardous * * * waste * * *.” § 260.22(a)(1).
- Under the “derived from” rule, “any solid waste generated from the treatment, storage or disposal of a hazardous waste * * * is a hazardous waste.” § 261.3(c)(2)(i). This rule, known as the “derived from” rule, is part of EPA’s “continuing jurisdiction” provisions. § 261.3(c)(1). In effect, these provisions say, “once a hazardous waste, always a hazardous waste.” Thus, sludges, dusts, spill residues, ash, and leachate from hazardous wastes are automatically considered hazardous wastes. As noted above, the “derived from” rule excepts from the definitions of both solid and hazardous waste “materials that are reclaimed from solid wastes and that are used beneficially * * * [provided that] the reclaimed material is [not] burned for energy recovery or [applied to the land].” § 261.3(c)(2)(i). Otherwise, if not within the exemption for reclaimed materials, a waste “derived from a hazardous waste” will remain a “hazardous waste” until it either no longer exhibits the characteristic of a...
- 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:
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Chapter 1 Introduction 39 results (showing 5 best matches)
- In contrast,
- 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,
- hazardous wastes
- hazardous wastes
- Like pieces of a jigsaw puzzle fitting together, the various federal statutes regulating toxic substances and hazardous wastes make more sense if they are viewed as efforts to regulate different stages in a chemical’s life cycle. Accordingly, the chapters in this book are organized around this life cycle approach.
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Chapter 12 Additional Hazardous Waste Cleanup Options Under RCRA and CERCLA 50 results (showing 5 best matches)
- 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.”
- 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) 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.
- As described in detail in Chapters 7 through 11, many hazardous waste sites are cleaned up under the CERCLA remediation and cost shifting provisions. While CERCLA frequently provides EPA and others with their preferred cleanup option, two RCRA provisions also provide substantial hazardous waste cleanup authority.
- 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 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., . Thus, plaintiff need not show that an “emergency” exists.
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Chapter 7 Introduction to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 70 results (showing 5 best matches)
- 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.
- For decades, American factories, refineries, mines, and other business enterprises disposed of hazardous wastes in the cheapest possible manner, with little or no concern for human health or the environment. Before CERCLA was enacted, EPA estimated that more than 2,000 dump sites across the nation—most of them abandoned—contained hazardous wastes which threatened human health. EPA concluded that over 90% of the hazardous wastes generated in the United States each year were being disposed of improperly. In addition, spills and other accidental releases of hazardous substances into the environment were common. EPA estimated that about 3,500 chemical spills capable of causing environmental harm occurred each year.
- 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— —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 Alcan’s wastes were “hazardous substances” under CERCLA. Under this standard, the book which you are now reading could be considered a “hazardous substance” because its paper and ink contain minute amounts of hazardous substances.
- Love Canal and similar events revealed a major regulatory gap: existing law was inadequate to ensure cleanup of sites contaminated by hazardous substances. State law virtually ignored the issue. Federal law, while somewhat more developed, was still fragmentary. For example, as discussed in Chapter 12, RCRA § 7003 empowered EPA to clean up hazardous waste sites which posed an “imminent and substantial endangerment to health or the environment.” But at the time, this section was understood to apply only to hazardous waste sites like Love Canal. Similarly, a 1978 amendment to CWA § 311 extended the existing comprehensive regulatory framework for oil spill cleanup to cover the cleanup of 300 hazardous substances discharged into “navigable waters” (see Chapter 5). But this provision did not extend to most land-based contamination.
- Each year millions of tons of municipal solid waste (MSW) are generated in the United States, most of which is deposited in municipal landfills. A small fraction of MSW consists of hazardous substances (e.g., discarded paint, cleaning supplies, and pesticides). In the early years of CERCLA, it was unclear whether MSW would be considered a hazardous substance. The issue was important because all local governmental entities which collected and disposed of MSW faced billions of dollars in potential liability as site operators, owners, or arrangers.
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Chapter 9 CERCLA: Cost Recovery Actions Brought by Government 154 results (showing 5 best matches)
- the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
- 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.
- 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 more toxic or
- A generator may be liable for a release even absent proof that its own wastes were released. In the leading case of , 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, however, this burden is usually impossible to meet.
- Accordingly, M can avoid joint and several liability in the example above only if he can prove that: (1) his waste caused a separate, distinct harm; or (2) there is a reasonable basis for determining his contribution to a single harm. It is highly unlikely that M will be able to meet this burden. Most CERCLA sites are contaminated by numerous, commingled hazardous substances. Typically the volume, nature, migratory potential, actual migration, synergistic capacities, and toxicity of the contributions of each PRP cannot be determined. For example, in , Rhode Island brought a cost recovery action against 35 PRPs whose wastes were discovered in trenches and pits “filled with free-flowing, multi-colored, pungent liquid wastes.” The First Circuit affirmed the trial court’s judgment holding the defendants jointly and severally liable. In so doing, it explained:
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Chapter 4 Regulating the Use of Toxic Substances 46 results (showing 5 best matches)
- 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,
- 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) . In particular, all RCRA “hazardous wastes” and all CERCLA “hazardous substances” are also deemed “hazardous materials” under HMTA.
- Labeling alone may not afford adequate protection. Under certain conditions, the Commission may ban from interstate commerce certain hazardous substances intended for household use or use by children. , 1274. In order to designate a “banned hazardous substance,” the Commission must first find that the degree or nature of the hazard involved in the presence or use of the substance in households is such that public health and safety can be adequately protected only by a product ban. For example, the Second Circuit upheld the Commission’s decision to classify children’s foam finger paint as a banned hazardous substance in
- The Federal Hazardous Substances Act,
- hazardous materials in intrastate, interstate, and foreign commerce. Spanning over 1,000 pages in the Code of Federal Regulations, these regulations impose standards for all aspects of transportation, including shipping documents, containers, packaging, labeling, placarding, packing, handling, loading, routing, unloading, temporary storage, inspections, employee training, and emergency preparedness. 49 C.F.R. Parts 171–180. The DOT harmonized these hazardous materials regulations with international standards in 2017. . In addition to actual transporters, persons who “cause” hazardous materials to be transported or who manufacture or maintain shipping containers are also subject to these requirements. § 5103(b). The Act also mandates that transporters of certain hazardous materials (and persons who “cause” such transportation) file registration statements with DOT. § 5108(a).
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Chapter 13 Common Law Approaches to Hazardous Wastes and Toxic Substances 108 results (showing 5 best matches)
- 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.
- 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.
- 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 compensation for injuries...
- 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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Index 35 results (showing 5 best matches)
Chapter 11 CERCLA: Actions Brought by Private Parties 115 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 ability of the parties to demonstrate that their contribution to a discharge release or disposal of a hazardous waste can be distinguished;”
- “the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;”
- “the amount of the hazardous waste involved;”
- “the degree of toxicity of the hazardous waste involved;”
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Chapter 2 Risk and Scientific Uncertainty 50 results (showing 5 best matches)
- 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.
- 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 chosen to encounter it; and (3) they have little ability to control it.
- Regulation of hazardous wastes and toxic substances steers a middle course between these two options. On the one hand, it is generally . The principal goal of the federal regulatory framework is to prevent harm from occurring, not to remediate past harm. Even CERCLA, the key federal statute governing hazardous waste cleanup, is premised on the need to avoid future injury to humans and the environment. Thus, almost by definition, regulatory decisions must often be based on incomplete, ambiguous, and imprecise information. On the other hand, it is . In general, federal authorities determine whether to regulate chemicals on a case-by-case basis, considering the existing scientific data and other information. Moreover, once the decision is made to regulate a particular chemical, the manner of regulation varies according to
- Risk management examines how the legal system should respond to a known risk. Even assuming that exomine will cause 1 death every 5 years, is this risk significant enough to merit regulation? If so, what regulatory tool is appropriate to reduce the exomine risk to an acceptable level? Alternatively, one might ask: (1) is the substance “safe”?; and (2) if not, how can we make it “safe”? Both questions raise a fundamental policy issue: “how safe is ‘safe’ ”? Or, in the context of hazardous waste cleanup, “how clean is ‘clean’ ”?
- . Thus, the plaintiff seeking to prevent risk from hazardous wastes or toxic substances was bound by the normal evidentiary standard applicable to all by a preponderance of the evidence that harm actually occur in the future. In contrast, this approach largely ignored the which the risk posed. The law provided no protection against low probability/high severity risks. Thus, conduct proven to have a 51% probability of causing temporary disease in a few people might be enjoined. Yet a 10% probability that a toxic substance would kill hundreds of people would not justify relief.
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Outline 104 results (showing 5 best matches)
- i.Is the Waste a “Listed” Hazardous Waste?
- d.Is the Waste Excluded from the Hazardous Waste Regulations Because It Is Being Recycled?
- c.Is the Waste Hazardous Underthe “Derived from” or “Mixture”Rules, or the “Contained In”Policy?
- a.Is the Material Excluded from the Hazardous Waste Definition?
- a.“Hazardous Waste orConstituents”
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Chapter 14 Avoiding Liability for Hazardous Substance Cleanup Costs 24 results (showing 5 best matches)
- 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
- In addition, only damages caused by an “occurrence” are covered under a CGL policy. Until the mid-1980s, “occurrence” was typically defined as “an accident, including continuous or repeated exposure to conditions, resulting in bodily injury or property damage neither expected nor intended from the standpoint of the named insured.” For example, in a chemical company continued dumping hazardous waste materials into its unlined lagoon in the regular course of business, despite repeated notice that its wastes had contaminated nearby wells. In later litigation, the court found that the ensuing damage was “expected” by the company, and thus not a covered occurrence. But see, e.g., (finding that the migration of contaminants from an unlined county landfill was an “occurrence” because, based on the limited scientific knowledge concerning leachate migration at the time of the landfill’s design and operation, there was not a “substantial probability” that damage would occur).
- In general, liability for hazardous substance cleanup can be discharged in bankruptcy. The landmark Supreme Court decision recognizing this rule is 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 Court concluded that this obligation constituted a dischargeable debt. See also
- 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.
- Finally, insurance companies have routinely invoked the pre-1986 “pollution exclusion” in response to hazardous substance cleanup claims. The version of this exclusion involved in most cases provides that the policy does not apply:
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Preface 3 results
- The “law of hazardous wastes and toxic substances” has now emerged 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 that 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 In turn, these statutes are interpreted by thousands of pages of regulations, judicial opinions, administrative decisions, and guidance documents. Although this book addresses the basic legal components in the area, many details have been omitted and some topics (e.g., the special problems of nuclear materials) are mentioned only briefly.
- 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.
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Chapter 8 CERCLA: Cleanup Performed by Government 53 results (showing 5 best matches)
- The entire PA/SI is performed by the “lead agency” selected for the site. The lead agency is normally EPA, but under some circumstances it can be another federal agency, a state or one of its political subdivisions (most commonly, the state agency concerned with regulating hazardous waste), or an Indian tribe. § 104(d) . As a practical matter, the PA/SI—and ensuing steps in the process of removal action or remedial action—are normally performed by a private contractor retained by the lead agency. For simplicity, the discussion below assumes that the lead agency is EPA.
- The first step in the cleanup process is locating a contaminated site which requires response action. EPA discovers sites through methods including: (1) required reporting of certain releases by facilities; (2) “whistleblowing” by employees; and (3) reports from the public. EPA maintains a computerized inventory known as the Superfund Enterprise Management System (SEMS), which includes active hazardous waste sites as well as those being considered for inclusion on the NPL. Only a small percentage of such sites however, ultimately require action.
- 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 , “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 , 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 ; if a hazardous substance is not included in this list, § 102(b) . The CERCLA release reporting program overlaps somewhat with the various reporting requirements contained in EPCRTKA (Chapter 4) and RCRA (Chapters 6 and 12).
- 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.” . 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.
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Chapter 3 Regulating the Production and Sale of Toxic Substances 121 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...
- In emergency situations, EPA can seek immediate judicial relief. Section 7 authorizes EPA action against “imminently hazardous” chemical substances and mixtures—those that present “an imminent and unreasonable risk of serious or widespread injury to health or the environment, notwithstanding costs or other nonrisk factors.” § 7(f) . By revising the definition of “imminently hazardous” substances, the 2016 amendments clarified that costs or nonrisk factors play no role in defining an imminent hazard. If the manufacture, processing, distribution, use or disposal of such a substance or mixture is likely to result in such injury before a rule can be issued under § 6 , then EPA may bring a civil action, seeking relief that may include seizure, notice to purchasers, notice to the public, and recall, replacement or repurchase of the article. Section 7(b)(1)
- : FIFRA regulates the use of pesticides in several ways. First, use of a pesticide in a manner inconsistent with the label directions is illegal. Second, particularly hazardous pesticides are registered for “restricted use” only; they may be applied only by “certified applicators.” Finally, regulations promulgated under FIFRA mandate procedures to protect farm workers from pesticide exposure.
- “Imminently Hazardous” Substances
- The two main categories of actors regulated by TSCA are “manufacturers” and “processors.” A “manufacturer” is a person who produces or manufactures a chemical substance in, or imports such a substance into, the United States. The definition of “processor” is much broader, extending to a wide range of non-chemical manufacturers and other businesses. Under § 3(13) , “process” includes the “preparation” of a chemical substance or mixture for “distribution in commerce” either in “the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture,” or as “part of an article containing” the substance or mixture. Thus, for example, a paper towel manufacturer which incorporates formaldehyde into its product would be considered a “processor.” Some sections of TSCA also apply to persons who “distribute” chemical substances in commerce.
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Chapter 10 CERCLA: Cleanup Mandated by Government 34 results (showing 5 best matches)
- (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 decisions seemed to suggest a similar limitation. Most courts, however, quickly recognized that the language of § 106
- The permissible scope of § 106(a) 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 reimbursement of those costs attributable to any portion of the contamination...
- 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) § 107(a) liability standards into § 106(a) . It is now generally acknowledged that the four PRP categories listed in § 107(a) are also liable under § 106(a). Further, most courts interpret § 106(a) as imposing strict liability, like its counterpart § 107(a).
- 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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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher 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.
- Printed in the United States of America
- © West, a Thomson business, 1997
- © 2018 LEG, Inc. d/b/a West Academic
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Table of Acronyms 8 results (showing 5 best matches)
Table of Cases 28 results (showing 5 best matches)
- Hazardous Waste Treatment Council v. EPA, 212, 253
- Hazardous Waste Treatment Council v. Reilly, 258
- Articles of Banned Hazardous Substances Consisting of an Undetermined Number of Cans of Rainbow Foam Paint, United States v., 92
- Chemical Waste Management, Inc. v. Armstrong World Industries, Inc., 480, 481
- Chemical Waste Management, Inc. v. EPA, 217, 223, 253, 267, 268, 269
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Chapter 5 Regulating Toxic Pollution Under the Clean Water, Clean Air and Safe Drinking Water Acts 135 results (showing 5 best matches)
- 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.
- In addition to the general provisions, the Act contains several provisions addressing specific drinking water problems. Special provisions govern the regulation of arsenic, sulfate, and radon. §§ 1412(b)(12) (13). Portions of the Act address underground drinking water supplies. Of particular concern in this area are the underground injection wells used to dispose of hazardous wastes. §§ 1421–1428 . Standards developed under these provisions interact with the RCRA requirements for such disposal. Additional provisions ban the use of lead in drinking water pipes, § 1417
- The Act hinges its technology based emissions restrictions on the volume of hazardous pollutants emitted by a particular source. It defines “major sources” as a “stationary source or group of * * * sources located within a contiguous area and under common control” that can emit at least “10 tons per year * * * of any hazardous air pollutant or 25 tons per year * * * of any combination of hazardous air pollutants.” § 112(a)(1). To place some perspective on this volume, large dry cleaning businesses may well fall within the major source definition. In general, emitters of lower volumes fall within the residual definition of “area sources.” Area sources include any other source of hazardous air pollutants, other than motor vehicles. ...(a)(2). They include wood stoves and such businesses as smaller dry cleaners and gasoline service stations. EPA, however, may reduce the volume of emissions necessary to trigger “major source” treatment below the 10/25 ton levels because of “potency * *...a
- Recognizing that even MACT might not eliminate all risks to health from hazardous air pollutants, Congress also established a harm based backup system. Eight years after promulgating MACT, EPA can require additional emissions reductions to avoid any unacceptable residual risks. § 112(f)(2)(A) . Before proposing any such additional restrictions, EPA, in consultation with the Surgeon General, must report to Congress on the health risks remaining from hazardous air pollutants. § 112(f)(1). Congress set a 1996 deadline for the initial report. Using 1996 data, EPA released an initial National Scale Air Toxics Assessment in 2002. Using 1999 data, it released a second assessment in 2006. Each assessment considers estimated emissions, concentrations, and risks.
- In terms that allow for no exception, the Act bans the discharge of any “radiological, chemical or biological warfare agent, any high-level radioactive waste, or any medical waste * * *.” § 301(f). The Act separately defines “medical waste.” § 502(20)
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Table of Statutes 203 results (showing 5 best matches)
Table of Regulations 33 results (showing 5 best matches)
- Publication Date: March 28th, 2018
- ISBN: 9781683282105
- Subject: Toxic Torts/Hazardous Materials
- Series: Nutshells
- Type: Overviews
- Description: The law of hazardous wastes and toxic substances is a specialized field involving the overlap of federal and state statutes, science, economics, and public policy. This text covers the regulation of the production, sale, use, and disposal of toxic substances, ranging from pesticides to chemicals to genetically-engineered animals. It also addresses the “cradle-to-grave” regulation of hazardous wastes under RCRA and the cleanup of these wastes under CERCLA, the Superfund law.
