Understanding Environmental Law

by Weinberg, Philip; Reilly, Kevin

• ISBN13: 9780820528922
• ISBN10: 0820528927
• Format: Paperback
• Copyright: 1998-11-01
• Publisher: Lexis Nexis Matthew Bender

Table of Contents

Administrative, Judicial, and Constitutional Aspects of Environmental Law

Administrative Decision-Making and Judicial Review

Decision-Making

Judicial Review

Rule-Making

Standing and Related Issues

Standing

Introduction

Economic Injury Not Required

Actual Injury Required

Standing Is Determined on Case-by-Case Basis

Exhaustion of Administrative Remedies

Ripeness

Citizen Suit Provisions

Constitutional Basis for Environmental Law

Commerce Power

Other Congressional Powers

The Treaty Power

The States' Police Power

Constitutional Restrictions

Preemption

Burden on Interstate Commerce

``Dormant Commerce Clause''

When State Is a Market Participant

De Facto Takings

Excessive Regulation of Property Deemed a ``De Facto Taking'' Requiring Just Compensation

There Are Two Categories of De Facto Takings

Factors Used in Determining Whether a Taking Has Occurred

No Taking If Owner Retains Reasonable Value

Landmark Preservation Laws and the Free Exercise Clause

No Taking If Regulation Tantamount to Abating a Nuisance

Reasonable Expectations Measured as of Date of Purchase

Regulation Must Have Nexus with Intended Purpose

Need for ``Rough Proportionality'' Between Regulation and Purpose

Parcel Viewed as a Unitary Tract; Partial Restriction Not a Taking

Physical Invasion May Be a Taking

States' Reserved Powers

Sovereign Immunity and the Eleventh Amendment

Federal Sovereign Immunity Is Limited by Congress

States' Sovereign Immunity and the Eleventh Amendment's Limits on Suits Against States in Federal Courts

Policy Issues

Costs and Benefits: Balancing Environmental Economic Factors; Risk Assessment

Weighing Economic and Environmental Costs

Risk Assessment: Pro and Con

Cost-Benefit Analysis

Environmental Regulation Adopts Risk Assessment

Technology: Conflict Between Setting High Technological Standards and the Availability of the Technology to Meet Those Standards

Mandating Technological Improvements

Cost-Benefit Approach to Hazardous Waste Cleanup

The Carrot or the Stick? ``Command and Control'' Regulation versus Incentives to Foster Voluntary Compliance

Criminal and Civil Sanctions

Both Criminal and Civil Penalties Employed

Criminal Penalties Raise Constitutional Issues

Criteria for Civil Penalties and Abatement Orders

Federal versus State and Local Enforcement

Congress Generally Has Not Preempted State Regulation

Factors Governing Federal or State Enforcement

Land Use Regulation Chiefly Local

Environmental Justice

SLAPP Suits (Strategic Lawsuits Against Public Participation)

Suits Aimed at Deterring Opponents of Projects

First Amendment Protection for Project Opponents

State Statutes Restricting SLAPP Suits

Common Law Remedies

Nuisance

Introduction

Public and Private Nuisance

Liability

Nuisance Is an Unreasonable Interference with Rights in Land

Private Nuisance and the Requirement of Fault

Nuisance Must Reach the Property

Defenses

Objective Standard

Limitations and Laches

Coming to the Nuisance

Effect of Regulatory Statutes

Remedies

Damages for Permanent or Temporary Nuisance

Punitive Damages and Their Limits

Injunction Available to Abate Nuisance

Courts Balance the Equities in Issuing Injunctions

Federal Nuisance

Federal Nuisance Approved in 1972 Supreme Court Decision

Supreme Court Later Held Federal Nuisance Preempted

Trespass

Strict Liability in Tort

Negligence

Riparian Rights

Common Law Riparian Rights

Riparian Right to Reasonable Flow

No Riparian Right to Pollute

Prior Appropriation

Rights to Groundwater

Public Trust Doctrine

Public Has Right to Underwater Lands

Any Citizen of State Has Standing

Statutes Codify Public Trust Doctrine

Regulation under Public Trust Not a Taking

Environmental Quality Review

National Environmental Policy Act (NEPA)

Importance and Origins

Act Requires Federal Agencies to Weigh Impacts

Origins of Act in Earlier Court Decisions

Environmental Impact Statement (EIS)

Draft and Final EIS

Environmental Assessment to Decide Need for EIS

Context and Intensity of Impacts Determine Whether EIS Is Necessary

Some Actions Fall Outside NEPA

Programmatic and Site-Specific EISs

EIS Limited to Reasonably Forseeable Impacts

Lead Agency Responsible for EIS

Preparation of EISs

Timing of EISs

Procedures in Preparing EIS

Publication of Notice of Intent

Scoping

Draft EIS; Time Limits; Other Requirements

Record of Decision

Alternatives

Mitigation Measures

Agency Must Discuss, But Need Not Adopt, Mitigation Measures

Criticism of Act's Limitation to Procedural Requirements

Judicial Review

Available Under Administrative Procedure Act; Standing

Standard of Review

Injunctive Relief

State Environmental Quality Review Statutes

Broad Adoption of Statutes Patterned on NEPA

Examples

New York

California

Environmental Audits

Purpose of Audits

Common Law Privileges Inapplicable

State Privilege Statutes and EPA Ruling

Air Quality

The Clean Air Act: Standards

Overview of Act

Reasons for Federal Legislation

Federal and State Tandem Regulation

Federal Criteria and Standards

State Implementation Plans

Requirement to Prepare Plans

Contents of State Plans

Submission of Plans

Time for Attaining Primary Standard

Revisions of State Plans

Stationary Sources

New Source Regulation

New Sources Subject to Stringent Controls

Permit Requirements

Performance Standards

Prevention of Significant Deterioration of Air Quality

Existing Sources and the Bubble Concept

Acid Rain

Origins of Acid Rain

Effects of Acid Rain; Causes

Attempts to Reduce Acid Rain

Hazardous Air Pollutants

Background

Act's Current Approach

Work Practice Standards

Accidental Releases

Mobile Sources

Introduction

Emission Standards for New Vehicles and Engines

Requirements Generally Applicable

Vehicle Categories

Pollutants Regulated

Averaging of Emissions Among a Manufacturer's Vehicle Classes

Time Period Before Revised Standards Apply

Temporary Waiver of Standards

Light-Duty Vehicles

Heavy-Duty Vehicles and Engines

Manufacturers Have a Four Year Lead Time to Comply with New Standards

Ensuring Manufacturers' Compliance

Testing and Certification for New Vehicles and Engines

Testing and Certification for Older Vehicles and Resales

Hearing Requirement for Vehicles or Engines That Fail to Comply

Testing of Emission Control Systems

Recall of Noncomplying Vehicles

Warranties and Certifications by Industry

Manufacturer Is Required to Provide Information

Site Inspections

State Standards

Regulation of Fuel

Regulation of Fuels by EPA

EPA May Prohibit Commerce in Harmful Fuels

Lead

Reformulated Gasoline in Ozone Nonattainment Areas

Carbon Monoxide Nonattainment Areas

New Fuels

Preemption of State Regulation

Urban Buses

Clean Fuel Vehicles

Types of Clean Fuels; Standards

California's Pilot Program

Conversion of Vehicle Fleets

Enforcement

Air Quality and Emission Limitations

Prevention of Significant Deterioration

Mobile Sources

Violations, Generally

Violations for Vehicles Imported and Exported

Exemptions

Injunctive Relief

Civil Penalties

Emergency Powers

Citizen Suits

Introduction

Types of Citizen Suits

Disposition of Penalties

Notice Requirements

Costs and Fees

No Preemption of Other Statutory or Common Law Claims

Water Pollution

Overview of Provisions Regulating Water Pollution

Legislative History of Federal Water Pollution Statutes

Early Federal Attempts to Control Water Pollution

Historical Background

Rivers and Harbors Act

Overview of the Act

Supreme Court Cases Construing the Rivers and Harbors Act: Antecedents to Enactment of Federal Water Pollution Policy

Permitting Scheme

Congressional Preferences for State Regulation of Water Pollution

Water Pollution Control Act

Water Quality Improvement Act of 1965

Early State Attempts to Control Water Pollution---Promulgation of Water Quality Standards for Different Classifications of Water Bodies

Delay in Enacting National Policy Can Have Serious Consequences

Federal Water Pollution Control Act of 1977---Modern Clean Water Act (CWA)

Clean Water Act (CWA)

Scope and Legislative Background of Clean Water Act

Clean Water Act Regulates Discharges of Pollutants into Surface Waters

Legislative Purposes of the Clean Water Act

International Aspirations of the Clean Water Act

The EPA's Authority Under the Clean Water Act

Basic Terms Defined

Terms Triggering Applicability of the CWA

Terms Interlock and Are Interpreted Broadly

Discharge

Pollutant

Point Source

Non-Point Source Pollution/Stormwater Runoff

Navigable Waters of the United States

Permit

Source, Outfall and New Source

Water Quality Standards vs. Effluent Limitations

Water Quality Standards

Effluent Limitations or Technology-Based Standards

National Pollutant Discharge Elimination System (NPDES) Program

NPDES Permits Are Required for Discharges of Pollutants, and Are Subject to Other Environmental Laws

Obtaining Permits for Toxic Wastes

Discharges from Publicly Owned Treatment Works (POTWs)

Direct Discharges

Indirect Discharges

Secondary Treatment

Sludge Is Regulated as an End-Product of POTW Wastewater Treatment

State Certification of Compliance with Water Quality Standards Is Required

Persons and Conduct Covered by NPDES

Permit Application: Contents and Procedures

Filing the Application

Contents of Application

Specific Types of Applications

Concentrated Animal Feeding Operation and Concentrated Aquatic Animal Production Facility

Publicly Owned Treatment Works (POTWs)

NPDES Permits: Terms and Conditions

Overview

Effluent Limitations May Be Set Out in the Permit in Different Ways

Standard of Performance for Dischargers Requires Use of Best Available Demonstrated Control Technology

Other Conditions Apply to Different Classes of Discharges and Categories of Pollutants

Monitoring and Reporting Requirements

Primary Monitoring Responsibilities Are Imposed on Permittee

Public Disclosure Is Required with Limited Protection for Trade Secrets

General Record Keeping Requirements and Reporting Obligations

Additional Reporting Obligations for Publicly Owned Treatment Works (POTWs)

State Pollutant Discharge Elimination System (SPDES) Programs

Overview of State Permitting Programs

State Program Requires EPA Approval: Process and Requirements

SPDES Programs May Be Revised by the State or the EPA

EPA Approval of SPDES Programs May Be Withdrawn

Enforcement

Overview

Enforcement Goals

How Violations Occur

Discharge of Pollutants into a Treatment Works May Place Treatment Works in Violation

Enforcement Authority

State Has Enforcement Authority Under SPDES Program; Otherwise, the EPA Enforces

State Has Limited Time Period to Undertake Enforcement

Systematic Nonenforcement by the State; EPA's Resumption of Enforcement Authority

Enforcement Options

Compliance Order; Notice of Violation

Administrative Enforcement

Public Notice; Public's Opportunity to Comment

Public Hearing; Witnesses May Be Subpoenaed

Penalties

Civil Remedies

Criminal Enforcement

Overview

Criminal Negligence

Knowing Violations

Knowing Endangerment

Citizen Suits

Overview; Purpose Is to Ensure Compliance with the CWA

Enforcement Goals: Violations of Permit, Effluent Limitations, Water Quality Standards, Compliance Orders

Citizen Suits May Address Only Present Violations

Statutory and Common-Law Remedies May Still Be Pursued

The EPA May Be Sued for Its Failure to Enforce CWA

Standing

Target of Suit; Suit Subject to Eleventh Amendment

Bar to Commencement of Suit: 60 Days Notice; Contents of Notice; EPA Diligently Prosecuting Enforcement Action

Intervention

``Substantially'' Prevailing Plaintiff May Recover Attorney and Expert Witness Fees

Penalties Are Paid to U.S. Treasury; Some Courts Allow Earmarking for Environmental Projects

Water Resources

Background

What Are the Sources of Ground Water Contamination?

How Does the Hydrologic Cycle Affect Ground Water Contamination?

Ground Water Contamination Is Regulated by Several Statutes

Safe Drinking Water Act

Background and Jurisdiction

Regulation of Public Water Systems: Water Quality Requirements

Maximum Contaminant Levels

Drinking Water Regulations

Primary Drinking Water Regulations

Secondary Drinking Water Regulations

What Is a Public Water System?

Variances

Exemptions

Regulation of Ground Water Sources of Drinking Water

Restrictive Land Use Regulation

Protection of Sole Source Aquifers

Injection Wells

Wellhead Protection

Underground Storage Tanks

Marine Protection

Generally

Point Source Discharges

Relationship Between Section 403 and Other Provisions of the Clean Water Act

Where NPDES Permits Under Section 403 Operate

Criteria Governing Issuance of Marine Discharge Permits

Congress' Concerns

How the EPA Evaluates the Permit Application

If There Is an Unreasonable Degradation of the Marine Environment, the Permit Will Be Denied

Factors Considered by the EPA in Determining Whether There Is an Unreasonable Degradation

Ocean Dumping

Background

Jurisdiction

Purpose and Prohibitions

What Did Congress Intend the Act to Accomplish?

What is ``Dumping''?

Geographic Jurisdiction

Regulatory and Enforcement Jurisdiction

Scope of Coverage

Materials Subject to Permitting Requirements

Materials for Which No Permit May be Granted

Dumping of Sewage Sludge and Industrial Waste: Forbidden by the Statute

Permitting Criteria

Dumping May Not Unreasonably Degrade Marine Environment or Endanger Human Health

General Criteria

Dump Site Designation in Permit

Issuance of Permit

Public Notice

Permit Conditions

Public Record

Enforcement and Penalties

Generally

Emergency Dumping: No Enforcement Sanctions

Citizen Plaintiffs

Oil Discharge and Liability

Background

Regulation under the Clean Water Act

``Discharges'' Covered by Section 311

Liable Parties Include Owners and Operators of Vessels and Facilities

``Person in Charge'' Must Immediately Notify Coast Guard of Discharge of Oil

Penalties for Discharge or Failure to Comply with Cleanup Order

Boarding Vessels, Entry of Facilities; Inspections

Removal and Mitigation

Third Party Liability; Defenses; Cost Recovery by Innocent Owner or Operator

National Response System Facilitates Prevention and Speedy Cleanups

Oil Pollution Act of 1990

Introduction

Responsible Parties Include Owners and Operators of Vessels, Facilities, and Pipelines

Third Party Liability; Defenses

Indemnification Agreements Are Enforceable, But Are Not a Statutory Defense

Responsible Party Is Liable For Removal Costs and Damages

Recoverable Costs Include Natural Resource Damages; Subsistence Use of Natural Resources

Additional Recoverable Costs: Lost Tax Revenues; Lost Profits; Cost of Public Services

Monetary Limitations on Damages

Oil and Gas Drilling on the Outer Continental Shelf: Outer Continental Shelf Lands Act

Congressional Purpose

Federal vs. State Roles

Lease Program

Development and Production Plans

Citizen Suits

Enforcement

Tanker Design and Operation

The Ports and Waterways Safety Act

Preempts State Laws on Tanker Design

Double Hulls Required by 1990 Amendment

Proof of Compliance and Penalties

State Laws on Deballasting and Tanker Performance

Pilotage

International Agreements

Dredge and Fill Operations

Introduction

``Dredge'' and ``Fill'' Definitions

Dredge and Fill Activities Are Governed by Section 404 of the Clean Water Act

Army Corps of Engineers Is Primary Regulatory and Enforcement Agency

Overlapping Jurisdiction with Rivers and Harbors Act

Overlapping Jurisdiction with EPA

State Jurisdiction vs. Army Corps Jurisdiction

Statutory Criteria Triggering Need for a Permit

Basic Requirements: Discharge into Waters of the United States

``Discharge'' of Dredged or Fill Materials: How Construed

Addition Required

Dredging Itself Not Covered

Incidental Fallback During Dredging

Activities Traditionally Not Treated as Discharges

Landclearing

Draining of Water Bodies or Wetlands

Pilings

Specification of Disposal Sites

General Policies for Evaluating Permit Applications

Public Interest Review

Effect on Wetlands

Effect on Fish and Wildlife

Water Quality

Historic, Cultural, Scenic, and Recreational Values

Effect on Property Interests

Activities in Coastal Zone, Marine Sanctuary

Bases Upon Which Permit Will Be Denied

Generally

Practicable Alternative Has Less Impact

Degradation of Waters of the United States

State Water Quality Standards

Toxic and Pretreatment Effluent Standards

Adverse Effect on Regulated Species or Habitat

Marine Sanctuaries

Discharges of Dredge or Fill Materials Exempted From § 404 Permitting

Generally

Statutory Exempt Activities

Agriculture/Silviculture

``Normal'' Farming, Silvicultural, or Ranching Use

Farming, Silvicultural, or Ranching Use Must Be ``Ongoing''

Ponds or Ditches Relating to Agriculture

Farm, Forest, and Mining Roads

Structures in the Water: Maintenance and Repair

Sedimentation Basins at Construction Sites

When Statutory Exemptions Are Inapplicable

New Use of Water Body

Activity Impairs Flow or Circulation

Certain Government Projects Are Exempted

Nationwide or ``General'' Permits

Solid and Hazardous Wastes

Introduction to Solid and Hazardous Wastes

Background

Definitions

RCRA and CERCLA Complement Each Other

Regulatory Structure of RCRA and CERCLA

Federal Regulation of Solid Waste

Basic Terms

How Solid Is ``Solid'' Waste?

Disposal Activities and Facilities

Wastes Excluded from Federal Regulation of Solid Waste Disposal

Sanitary Landfills

Open Dumping Is Prohibited

Criteria Governing Sanitary Landfills

Sanitary Landfill Defined

Flood Plains

Wildlife Habitat

Water

Surface Water

Groundwater

Wetlands

Agricultural Use of Sewage Sludge

Toxic Substances

Pathogens

Open Burning

General Safety Hazards

Groundwater Monitoring and Corrective Action

Municipal Solid Waste Disposal Facilities

Governing Rules

Facilities Included

What Is ``Municipal'' Solid Waste?

Municipal Solid Waste Management Units: Definition and Requirements

Exclusion of Small Landfills

Municipal Incineration of Solid Waste

Limitations that Apply to a Municipal Landfill's Siting and Location

Wetlands

Flood Plains

Seismic Zones

Airports

Unstable Areas

Design and Operating Requirements

Design Criteria

Operating Restrictions

Recordkeeping

Groundwater Monitoring

Closure and Post-Closure Requirements

Purpose of Requirements

Cover System

Closure Plan and Other Requirements

Post-Closure Care

Financial Assurances

General Requirements

Estimates

Financing Mechanisms

State and Local Control of Solid Waste Disposal

State Plans

Federal Encouragement of State Plans

Minimum Requirements of State Plans

Additional Components of State Plans

Open Dumps

Used Oil

Implementation of State Plans

Restrictions on State and Local Solid Waste Disposal

Commerce Clause Considerations

Flow Control Ordinances: Local Attempts to Control Solid Waste Disposal

Market Participation by the State

Hazardous Waste Management: The Resource Conservation Recovery Act (RCRA)

RCRA Goals

Wastes Subject to RCRA Regulation

Defining Hazardous Wastes

Hazardous Waste Criteria

Materials ``Mixed With'' Hazardous Wastes

Exclusions

Generators

Requirements

Generators that Act as Treatment, Storage, and Disposal Facilities

Small Generators

Transporters

Custody and Tracking of Hazardous Waste Shipments

Spills During Transport

Treatment, Storage, and Disposal (TSD) Facilities

Definitions

``Facility''

``Storage''

``Disposal''

``Treatment''

TSD Permits

TSD Facility Standards

Tracking and Identification

Safety

The ``Land Ban''

Groundwater Protection, Monitoring, and Corrective Action

Groundwater Protection Obligations

Detection Monitoring

Compliance Monitoring

Corrective Action

Financial Assurance

Closure and Post-Closure Requirements

Inspections, Reporting, and Monitoring

Delegation to States

Enforcement

Administrative and Civil Enforcement

Criminal Penalties

Abatement Orders for Imminent Hazards

Citizen Suits

Bases for Suits; Remedies

Notice Requirements

When Suits Are Barred

Fees to Prevailing Party

Hazardous Waste Sites: Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

Remediation under CERCLA

Introduction

Facility Defined

Release, Threatened Release, or Disposal; Exclusions

Section 106 Orders

Use of CERCLIS, Preliminary Assessments, the Hazard Ranking System, and the NPL

Remediation: Response Actions, Removal, Monitoring, and Mitigation

Definitions

Remedial Investigation, Feasibility Study, and Record of Decision

What Remediation Entails

EPA vs. Private Party Cleanups

National Contingency Plan Requirements

Recovering Costs of Cleanup

Notice and Record Keeping Requirements

Responsibility for Cleanup

Statutory Categories of Responsible Parties

Generators

Owners and Operators of Disposal Sites

Owners and Operators Subject to Liability

Joint and Several Liability

Owner and Operator Defined

Partnerships and Corporate ``Owners'' and Operators

U.S. Government May Be an Owner or Operator

Liability of State and Local Governments

Liability of Past and Present Owners and Operators

Successor Liability

Secured Creditor Exemption

Fiduciary Exemption

Parties Who Arrange for Disposal

Transporters

Strict, Joint, and Several Liability

Cleanup Costs: Who Pays Whom?

Cost Recovery Actions vs. Contribution Actions

Cost Recovery Actions

Contribution Actions

Defenses

Three Defenses, Generally

Acts of God and War

Act or Omission of Third Party

Innocent Purchaser Defense

Settlement and Protection from Contribution

Insurance

Pollution Exclusion Clauses

``Sudden and Accidental'' Releases

``Absolute'' Pollution Exclusion

State Cleanup Statutes

Effect of Responsible Party's Bankruptcy

Bankruptcy Petition Stays Actions for Money Judgments, But Not Governmental Enforcement Actions

Discharging Environmental Claim in Bankruptcy

The Brownfields Issue: The Amount of Cleanup Required

Of ``Brownfields'' and ``Greenfields''

The Awakening Federal Interest

Proposed Solutions to Brownfields Dilemma

Limitation of Ownership-Derived Liability

Purchaser Liability

Lender Liability

Restrictions on Future Use

Voluntary Cleanups

Financial Incentives

Emergency Planning and Community Right to Know Act

Requirements and Purposes of Act

Emergency Planning

Local Responsibilities for Emergency Planning

Emergency Response Plan

Emergency Notification

Reporting Requirements

Material Safety Data Sheets

Inventory Forms

Toxic Chemical Release Forms

Medical Emergencies

EPA as a Data Clearinghouse

EPA Must Maintain Records on National Movement of Chemicals

EPA Must Maintain List of Toxic Chemicals

Citizens May Petition to Add a Chemical to EPA's List

Enforcement

Compliance Orders and Penalties

Citizen Suits

Grounds for Suit

Notice; Suits for Past Violations

Standing

Costs and Fees; Intervention

Suits by State or Local Authorities

Toxic Substances

Pesticides

Regulation of Pesticides

Registration

Registration Requirements, Generally

Information Required to Achieve Registration

Registration Is for General or Restricted Use

Original Registration Is for Exclusive Use

State Registration

Suspension and Cancellation

Experimental Use Permits and Variances

Public Access to Information

Labeling

General Labeling Requirements

Preemption

Pesticide Residues in Foods

Enforcement

Regulating Toxic Substances: The Toxic Substances Control Act (TSCA)

Purposes of Act

Chemicals Included in and Excluded from TSCA

Testing Requirements

When Testing Is Required

Standards Used for Testing

Actions to Prevent or Reduce Risk

Manufacturing and Processing Notices for New Chemicals or New Uses

Ninety Day Notice Requirement; Exemptions

Required Contents of Notice

Issuance of Interim Order; Injunctive Relief

Regulation of Hazardous Chemicals

EPA's Promulgation of Rules

Balancing of Risks

Emergency Rule-Making Power

Regulation of Polychlorinated Biphenyls (PCBs)

Imminent Hazards

Compilation of Information

Reporting and Record Keeping by Regulated Parties

EPA's Inventory of Toxic Chemicals

Inspections

Confidential Data

Exports and Imports

Enforcement

Criminal and Civil Penalties

Other Civil Remedies

Citizen Suits

Toxic Tort Litigation

Liability

Background

Standards of Liability

Strict Liability

Negligence; Interference with Commercial Expectations; Emotional Distress

Product Liability and Failure to Warn

Causation

Duty of Care

Burden of Proof

Multiple Defendants

Suits Against Government Bodies

Damages

Defenses

Statute of Limitations

Government Contractor Defense

Workplace Toxic Torts

Bankruptcy

Procedure and Evidence

Class Actions

Jurisdiction

Discovery

Expert Testimony

Liability Insurance

``Sudden and Accidental'' Limitation

Duty to Defend

Liability of Insurer at Time of Exposure

Radon

Health Risks

Regulation of Radon as a Toxic Substance

EPA's Responsibility to Provide Information

Construction Standards

Asbestos

Background of Problem; Regulation Under State and Federal Law

Regulation Under Toxic Substances Control Act

Asbestos in Schools

Asbestos Abatement

Occupational Safety and Health Act Regulation

Clean Air Act

Chlorofluorocarbons (CFCs) and Other Ozone Depleting Chemicals

Background of Problem

Regulation Under Clean Air Act

CFC Listing

Labeling

CFC Ban

Environmental Tax on CFCs

Lead

Background of Problem; Regulations

Lead Exposure Reduction Under Toxic Substances Control Act

Residential Lead-Based Paint Hazard Reduction Act

Purposes of Act

Disclosure of Lead Hazards Prior to Conveyance of Residential Target Housing

Accreditation

Occupational Exposure to Lead Hazards

Regulation of Lead Emissions Under Clean Air Act

Noise

Noise Control Act

Background of Act

Congressional Finding; General Requirements of Act

Maximum Ambient Standards for Noise

Warranty Requirement and State Regulation of Noise

Labeling Requirements

Remedies

State and Local Laws

Aircraft Noise

Inverse Condemnation Suits

Nuisance Actions

Aircraft Noise: FAA Regulations

Aircraft Noise: State and Local Airport Controls

Occupational Noise

Fish and Wildlife

Hunting and Fishing Laws

Deep Sea Fishing

Background

License Requirements

International Treaties

Drift Nets

Endangered Species Act and Related Statutes

Background of Endangered Species Act

Tennessee Valley Authority v. Hill and the Creation of Endangered Species Committee

``Taking'' of Endangered Species Is Prohibited

Lesser Protection Exists for Threatened Species

Preemption Issues

Enforcement, Standing, and ESA's Citizen Suit Provision

Other Wildlife Protection Statutes

State Statutes

International Controls

Voluntary Creation of Wildlife Habitat

Land Use

Overview

Critical Areas: Wetlands, Coastal Zones, Shorelands, and Submerged Lands and Floodplains

Wetlands

Coastal Zones, Shorelands, and Submerged Lands

State and Local Statutes

Coastal Zone Management Act

Underwater Lands

Floodplains

State and Regional Planning

Local Zoning and Its Environmental Implications

Need to Protect Environmentally Critical Areas

State Planning and Land Use Statutes

Historic Preservation

Municipal Controls Protecting Landmarks

Landmarks and De Facto Taking Claims

Religious Buildings and Free Exercise Claims

Maintenance and Rehabilitation

National Register of Historic Places

Wilderness Areas and Public Lands

National Forests

Bureau of Land Management Property

National Parks and Wildlife Refuges

Wilderness Protection

Power Plant Siting

In General

Hydroelectric Power Plants

Nuclear Power Plants

State Power Plant Siting Statutes

Esthetic Controls

Agricultural Lands

Conservation Easements and Land Trusts

Energy Production and Mineral Extraction

Solar Energy and Wind Power

Background

Solar Energy

Wind Power

Nuclear Energy

Atomic Energy Act

Licensing Power Plants

Evacuation Plans

Radioactive Waste Disposal

Nuclear Waste Policy Act

Low Level Radioactive Waste Policy Act

Transporting Radioactive Waste

State Controls and Preemption Issues

Liability Issues

Geothermal Energy

Coal and Mineral Surface Mining

Surface Mining Control and Reclamation Act

Act Needed to Supplement State Controls

Act Works in Tandem with State Regulation

Act Requires Reclamation and Restoring of Land

Act Upheld as Valid Exercise of Congressional Power

Laws to Prevent Subsidence of Surface Lands

Synthetic Fuels

Government Sponsorship of Synthetic Fuel Research

Federal Subsidies for Biomass Energy and Gasohol

Compressed Natural Gas, Electric, and Hydrogen Powered Vehicles

Energy Conservation

Automotive Fuel Efficiency

Appliance Efficiency

Electricity Conservation

Public Utility Regulatory Policies Act

Fostering Small Power Producers

International Aspects of Environmental Protection

Basic Principles

Treaties Governing Environmental Issues

Applicable Principles of International Law

Sustainable Development and Population Increase

Conflicting Interests of Developed and Developing Countries

War and the Environment

Global Climate Change

Causes and Effects of Global Warming

The Climate Change Convention

Ozone Layer Protection

Basel Convention on Hazardous Waste Shipment

The Environment and Free Trade

Biodiversity

Importance of Maintaining Biodiversity

Convention on Biological Diversity

Use of Genetic Resources: Who Profits?

Debt-for-Nature Swaps

Innovations and Trends

Introduction

The ``XL'' Program

Background and Description of Program

The ``Reinventing Government'' Initiative

Pilot Projects

Role of Local Agencies

Review Groups and the Final Project Agreement

Goals

Types of XL Projects

Facility-based

Industry-wide

Government Agencies

Community-based

Other Community-Based Programs

Code of Environmental Management Principles for Federal Agencies

Purpose of the Code

Code Principles

Incentives for Self-Policing

Public Performance-Based Permitting

ISO 14000 and Environmental Management

International Organization for Standardization (``ISO'')

Background and Environmental Goals

Standards Are Voluntary

International Trade Aspects of ISO 14000

Industry Response to ISO Standards

Environmental Management Systems

Goal of System

No Performance Standards for ISO 14000

Features of ISO 14000

Certification of Compliance with ISO Standards

Glossary

Table of Cases

Table of Statutes

Index