Healy Enviro Law Fall 2012.docx

2 epa may pursuant to 106 issue an administrative

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2. EPA may (pursuant to §106) issue an Administrative order or seek court order to compel a private party to pursue a response action at the site. a. To take this action, the release of significant threat of release must cause “ an imminent and substantial endangerment .” b. The substantial endangerment finding is given lots of deference. c. Failure to comply with order subjects party to penalties d. Industry hates 106 because it gives EPA tons of power and they can always threaten one of these to get compliance. 3. EPA may pursue settlement with private party under which private party agrees to conduct response action (including remedial action). a. PRP led cleanups constitute ~75% of all CERCLA response actions. b. Private cleanups cost 20% less than gov work c. Huge incentives to settle if you are a PRP d. Private party in response party may recover costs expended in compliance with NCP—burden on P to show compliance. ii. Recovery/Sharing of response costs by/among PRPs. 1. Contribution action under §113(f) a. 113(f) is not permitted by PRPs in absence of pending or completed action under §106 or §107 ( Aviall ). 2. Cost Recovery Action under §107 (resolved in Atlanta Research ) a. Threshold requirement of cost recover action: you must have spent response/cleanup costs; and spent in line w/ NCP. b. PRP that has expended response costs MAY bring cost recover action under §107 against other PRPs. i. PRP D’s in cost recovery action may seek 113(f) contribution against PRP seeking recovery and seek contribution from additional PRPs. 46
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1. Because now we have a pending §107 action, which follows the Aviall holding. ii. §107 claimant (the private party) must prove response costs are consistent with NCP. VII. NEPA; National Environmental Policy Act (see outline) a. Regulatory approach of NEPA: Informational Based Approach i. NEPA merely requires the disclosure of information 1. NEPA also requires consideration of environmental factors and imposes procedural requirements upon Federal Agents. ii. Rationale: more informed consumer will make better decisions with their money which will cause manufacturers to change. Also, the risk of disclosure should cause industry to self police; inexpensive, etc. b. NEPA criticisms i. Environmental Justice – those that can organize (e.g. the wealthy) are less likely to be encumbered by the government. Ex: Overton Park. ii. Incorporates the NIMBY attitude. iii. NEPA is premised on the hope that Agencies will make good faith decisions. iv. Also, the Agencies are the ones doing the environmental studies. Who watches the watchdogs? c. NEPA was passed in 1969, enacted in 1970 and one of the first major environmental statutes. i. Only §101 and §102 matter; they are the cores of the statute and very brief d. NEPA Statute i. §101 Substantive Goals 1. These goals are SO broad that they impose no substantive requirement to minimize environmental impacts ( Strycker’s Bay court which cited Vermont Yankee—no substantive requirements, only procedural).
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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