Healy Enviro Law Fall 2012.docx

Ii there was a huge problem with land disposal so a

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ii. There was a huge problem with land disposal, so a Land Ban was imposed. iii. Land Ban [hammer provision incentivized EPA action] 1. Land Disposal of hazardous wastes is banned unless ( Land Ban exceptions) : a. Pre-treatment ( Chem Waste Mgmt case), OR i. If below safety standard (below) you can dump. ii. Dilution is sufficient for 3 physical characteristics but not toxics because it doesn’t eliminate toxicity b. EPA makes finding that there will be no migration of the hazardous wastes i. No Migration Variance applies to deep injection wells. ii. The showing is no migration for 10,000 years or until waste is no longer hazardous, whichever is shorter. 40
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2. Standards: a. Trigger requirement: solid waste is hazardous based on characterization (high risk than safety standard) b. Safety standard: §3004(m)(1) – treatment must minimize short and long-term risks to human health. i. Thus, hazardous substances are no longer regulated under RCRA when they are below safety standard. ii. You can dispose on land when BELOW safety std. 3. Land Ban was phased in (3 phases, worst substances to the remaining ones; Hammer Provision – if EPA missed deadline an absolute ban on land disposal would be imposed. iv. Final RCRA permitting also includes corrective action requirement (the issue in Inland Steel ), this was added to force companies to clean up crap that’s sitting on their land. 1. In Inland Steel , EPE says corrective action requirement applies to contiguous property and Inland Steel doesn’t want to clean up their wells. EPA says these wells are TSD facilities and the D needs a permit. 2. D’s A: We fall under the CWA act and are exempt from RCRA. 3. H – wrong. To avoid this loophole, the court sides with EPA. e. Pre-emption i. Basically the lone example where states imposed more stringent requirements that the fed standards (why? Good politics) ii. But, state requirements cannot discourage hazardous waste management across state lines or circumvent health standards. VI. CERCLA (ex post/retrospective; see handout) a. Love Canal was sued under RCRA and it was entirely inadequate. There was a need for a different regulatory authority. i. CERCLA – Comprehensive Environmental Response, Compensation and Liability Act, enacted in 1980 and heavily amended in 1986. b. Generally – imposes liability on past activities (generally ex post ) and cleans up past messes. c. 3 Key Components of CERCLA (this follows the handout) i. Establishes cleanup authority and process 1. Trigger for cleanup (response action) a. §104 authorizes a response action when there is a release or substantial threat of release of hazardous substance (***not a waste, this definition is not an issue like RCRA) into the environment. b. Scope of hazardous substance is substance defined as hazardous under other federal statutes ( need not be a waste ) c. Gov and private parties can pursue recovery actions under §104.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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