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FAQ - Environmental Law

Environmental Law

What is the National Environmental Policy Act?

The National Environmental Policy Act of 1969 (NEPA) was a revolutionary piece of legislation when it was enacted. For the first time, national policies and goals for the protection of the environment were established. Under NEPA federal agencies are required to consider environmental factors when making decisions. Most states have enacted similar laws that require environmental study before major state actions.

NEPA requires every federal agency to submit an environmental impact statement (EIS) when it is considering a major action that may affect the environment. An EIS may be required for such projects as rerouting an interstate highway, building a new dam, or expanding a ski resort on federally owned land. Legislative proposals also may require EISs.

The general public, federal and state agencies, and Native American tribes may comment on the proposal before the EIS is written and again after a draft EIS is written. At the conclusion of the comment period the federal agency writes a final EIS that responds to comments received during the public review. The agency then issues its record of decision, which discusses the decision, identifies alternatives, and indicates whether all practicable means to avoid or minimize environmental harm were adopted.

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What are some common-law doctrines to obtain recovery for environmental harm?

Before environmental laws were enacted by Congress and state legislatures, people harmed by environmental contamination could resort to a number of common-law doctrines to recover damages from those responsible. These doctrines are in use today, but are less necessary due to0 the enforcement provisions of modern environmental laws. The theories most commonly applied to environmental harms are nuisance, trespass, and negligence.

Under the nuisance doctrine, when a landowner unreasonably uses his or her land in a way that substantially interferes with the rights of others in the area, a landowner may be held liable for damages. A public nuisance is one that causes a broad, general harm to the public, such as contaminating the public water supply. A private nuisance causes an unreasonable interference with the right or interest of a private individual, usually an adjoining landowner. A nuisance can be both public and private. For example, factory smoke that diminishes the value of neighboring property is a private nuisance and a public nuisance if it endangers public health. A government department or agency usually will bring a public nuisance action and a private citizen will bring a private nuisance action.

Trespass involves an intentional interference with the property rights of a landowner. A trespass is the result of deliberate misconduct, such as dumping hazardous waste on another's property.

Negligence occurs when a defendant fails to exercise the amount of care that a reasonably careful person would exercise. The result is an accident. If a person accidentally spills hazardous waste on another's property, he or she may be liable under a negligence theory.

An additional consideration is whether the landowner will be held strictly liable. Strict liability is applied to abnormally dangerous activities. Many common activities have been determined to be abnormally dangerous, including collecting large quantities of water in hydraulic water mains, storing gasoline in large amounts, and transmitting high-voltage electricity under city streets. If an accident occurs involving an abnormally dangerous activity, the person who caused the accident is liable even if he or she did not act recklessly.

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What is indoor air pollution?

Most people are aware of the health dangers of outdoor air pollution, but may not realize that air pollution in their homes, offices, and schools also can have significant health effects. Recent studies have shown that people are exposed to higher concentrations of air pollution for longer periods of time inside buildings that outside. Air pollutant levels may be two to five times, and occasionally up to one hundred times, higher indoors than outdoors. These indoor air pollution levels are of concern to regulatory agencies because most people spend the majority of their time indoors. Indoor air pollution can cause immediate health effects, including headaches, dizziness, fatigue, asthma, hypersensitivity to particular substances, and irritation of the ears, nose, and throat. In the long term, people exposed to indoor air pollution may develop cancer, respiratory diseases, or heart disease.

Exposure to indoor air pollutants has increased over the past several decades due to construction of more tightly sealed buildings; reduced ventilation rates for energy efficiency; use of synthetic building materials and furnishings; and use of chemically formulated personal care products, pesticides, and household cleaners. Sources of indoor air pollution include:

  • combustion sources such as oil, gas, and wood;
  • tobacco smoke;
  • building materials, including asbestos-containing insulation;
  • furnishings, including flooring, wet or damp carpets, and cabinets or furniture made from certain processed wood products;
  • household cleaning and personal care products;
  • central heating and air conditioning equipment that contains microbes and dust;
  • office equipment such as printers and copy machines;
  • underground contaminants such as radon and pesticides; and
  • outdoor air pollution, including pollen, dust, industrial emissions, and vehicle exhaust.

Usually the most effective way to improve indoor air quality is to eliminate pollution sources or reduce their emissions. Some sources, such as those containing asbestos, can be sealed or enclosed. Other sources, like gas stoves and furnaces, can be adjusted to decrease the amount of emissions. Banning smoking and substituting less toxic cleaning supplies, art materials, and paints also can reduce indoor air pollution.

Improving ventilation is another approach to lowering concentrations of indoor air pollutants. Fans that exhaust to the outdoors can be used in bathrooms, kitchens, laboratories, copy and print rooms, and cleaning-supply storage rooms. Some buildings need additional outdoor air brought in by way of fans, open windows, or improved ventilation systems.

Air cleaners also can improve indoor air quality. Furnaces and portable air cleaners can filter particles out of the air in homes. Gaseous contaminants can be removed by more sophisticated filtering.

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What are "Brownfields?"

Brownfields are industrial and commercial sites that are abandoned or unused because of actual or perceived environmental contamination. Often these sites are in urban areas that could be redeveloped, but due to potential liability, developers seek out unused property, or "greenfields," on which to build. Because an owner of land contaminated with hazardous waste can be held liable for the cost to clean up the land under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), potential purchasers are reluctant to buy brownfield sites. The EPA has determined, however, that over ninety percent of brownfields are not on the National Priorities List, which will not require federal Superfund action.

Federal and state programs have created incentives to encourage voluntary clean up and reuse of brownfields by state and local governments and private parties. The incentives include grants, waivers of liability, and tax incentives.

Prospective buyers, lenders, insurers, and developers can employ private mechanisms to manage environmental liability risks associated with brownfields. Indemnification provisions, which are contractual mechanisms in which one party promises to shield another from liability, can be used to assign responsibility for cleanup costs among the various parties. Private parties also can purchase environmental insurance policies to decrease the financial risk of getting involved with brownfields.

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What is the Community Right-to-Know Act?

The Emergency Planning and Community Right-to-Know Act, commonly known as the Community Right-to-Know Act, was enacted by Congress to help local communities protect public health, safety, and the environment from chemical hazards. It was enacted in reaction to the 1984 disaster in Bhopal, India, in which a toxic chemical cloud was released from a manufacturing plant resulting in thousands of deaths and injuries. The act has four major provisions:

Emergency planning. Every community in the United States must be part of a comprehensive plan to handle chemical emergencies. Each plan lays out potential local hazards, response capabilities, and procedures to follow in an emergency situation.

Emergency release notification. If a chemical accident occurs at a commercial, municipal, or other facility, or on a transportation route, and the accident results in the release of a hazardous substance, the facility must notify the local community and the state immediately.

Hazardous chemical reporting. Facilities must report the amounts, location, and potential effects of hazardous chemicals they are using or storing to the local community and state, and the information must be made public. As many as 500,000 different products may fit the definition of "hazardous chemical."

Toxic chemical release reporting. Facilities that manufacture, process, or use toxic chemicals must report to states and the EPA the total amount of these chemicals that they release into the environment, accidentally or as a result of routine plant operations, or transport as waste to other locations.

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What is solid waste?

Solid waste is defined broadly by EPA regulations, and includes some substances that are not even solid. Solid waste includes:

  • garbage, for example milk cartons and coffee grounds;
  • refuse, including material such as scrap metal, wall board, and empty containers;
  • household hazardous waste, like batteries and fluorescent bulbs;
  • sludges (semi-solid materials) from waste treatment plants, water supply treatment plants, or pollution control facilities;
  • non-hazardous industrial wastes, such as manufacturing process wastewater and non-wastewater sludges and solids; and
  • other discarded materials, including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations, and community activities.

Regulation of solid waste disposal occurs mainly at the state level, although the EPA has developed criteria regarding landfill construction, operation, and closure.

Municipal solid waste is a subset of solid waste that includes:

  • durable goods, such as appliances, tires and batteries;
  • nondurable goods, such as newspapers, books, and magazines;
  • containers and packaging;
  • food wastes;
  • yard trimmings; and
  • miscellaneous organic wastes from residential, commercial, and industrial non-process sources.

Most municipal solid waste is disposed of in municipal landfills. Many communities are having difficulty developing sites for new landfills as a result of citizen concern about potential risks to human health and the environment. The EPA has developed criteria that landfills must meet to operate, and it encourages alternative methods of waste disposal.

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What is hazardous waste?

Waste is considered hazardous if:

  • it is ignitable (burns readily);
  • it is corrosive or reactive (explosive); or
  • it contains certain amounts of toxic chemicals.

The EPA has developed a list of some 500 specific hazardous waste. Hazardous waste may be solids, sludges, or liquids. Businesses that produce hazardous waste include dry cleaners, auto repair shops, hospitals, exterminators, and photo processing centers. Larger hazardous waste generators include chemical manufacturers, electroplating companies and petroleum refineries.

The Resource Conservation and Recovery Act specifies strict documentation procedures for hazardous waste. Hazardous waste treatment, storage, and disposal facilities need permits to operate.

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Does the public have a say in whether a hazardous waste facility receives an operating permit?

Hazardous waste treatment, storage, and disposal facilities need permits to operate under the federal Resource Conservation and Recovery Act (RCRA). Public participation in the permitting process must be allowed at each step of the permitting process. The public must be informed of the types of waste and management methods a facility owner and operator intend to employ, and allowed an opportunity to voice concerns. Public participation also can help avoid delays and future litigation by addressing public concerns before the facility begins operation or handling hazardous waste.

Pre-application meeting. Before submitting an application for a RCRA permit, a prospective applicant must hold an informal public meeting. At the meeting the owner and operator describe the facility operations and potential impacts on human health and the environment, and attendees may ask questions and make comments. When submitting the permit application, the applicant also must provide a mailing list of people who attended the meeting. The permitting agency then notifies attendees as to where they may examine the application.

Draft permit, public comment period, and public hearing. The permitting agency will decide whether to issue a draft permit or a notice of intent to deny the permit. In either case, the agency notifies the public of its decision and opens a public comment period of at least forty-five days. During the public comment period for a draft permit, any person can submit a written notice of opposition to the draft permit and request a public hearing. The permitting agency may hold a hearing if there is significant public interest in the draft permit, or at its own discretion. During the public comment period, people can submit written concerns and suggestions to the permitting agency. The agency will describe and respond to all significant comments raised during the comment period. After the public comment period closes, the permitting agency will review and evaluate all comments and make a final decision. The agency sends a notice of its decision to anyone who submitted comments or requested notice.

Permit modification. The amount of public participation required for a proposed permit modification depends on who initiated the modification and the degree to which the modification would change the permit. Public involvement requirements range from notification of the modification to the same amount of participation required during the original permit decision.

Permit renewal. If a facility owner and operator make a significant change during the renewal of the permit, the same pre-application meeting and notice requirements listed above must be met.

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What is an NPDES permit and who needs one?

The Clean Water Act (CWA) prohibits anyone from discharging pollutants from a point source into surface water unless that person or facility has a National Pollutant Discharge Elimination System (NPDES) permit. "Pollutant" is defined very broadly by the CWA, and includes sewage, garbage, chemical wastes, biological materials, radioactive materials, heat, sand, and industrial, municipal, and agricultural wastes. Sources that discharge into municipal sanitary sewer systems do not need NPDES permits, but may need permits from municipal authorities. Discharges to municipal storm sewers may need NPDES permits. In general, any industrial plant, municipal facility, animal feedlot, or ship that discharges wastewater into a river, stream, lake, or coastal waters must have an NPDES permit.

In most states, the state environmental protection office issues NPDES permits. In the few states that do not have EPA approval to issue permits, an EPA regional office issues permits. The public is allowed to comment on NPDES permit applications. When a company has applied for a permit, the permitting authority or the company must provide notice in a major local newspaper or in an official publication such as the Federal Register, and explain how the public may comment.

There are various methods used to monitor NPDES permit conditions. Permits require the holders to sample their discharges and notify the EPA and state regulatory agencies of the results. Permitted facilities also must notify the EPA and state regulatory agencies when they are not in compliance with permit requirements. These reports are public documents, so the public can review them. If a facility is not complying with its permit, the EPA, state regulatory agency, or a member of the general public can bring a lawsuit to enforce the permit. Government agencies also can issue administrative orders for enforcement.

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When is a permit required to deposit material in a wetland?

A permit is required under Section 404 of the Clean Water Act to deposit dredged or fill material into the nation's waters, including wetlands. Activities in wetlands for which permits may be required include:

  • placement of fill material;
  • ditching;
  • levee and dike construction;
  • mechanized land clearing;
  • land leveling;
  • most road construction;
  • dam construction; and
  • conversion of wetlands to uplands for farming and forestry.

Before beginning any of these projects, a landowner should determine whether the land contains a wetland, and if it does, apply to the U.S. Army Corps of Engineers for a permit. The permit application process includes public notice and comment requirements. Some activities are exempted from the permit requirement, including many ongoing farming, ranching, and silviculture (forestry) practices.

The Section 404 program provides that no discharge of dredged or fill material into a wetland can be permitted if a practicable alternative exists, or if significant water quality degradation would result. Therefore, a permit applicant must show that he or she has:

  • taken steps to avoid wetland impacts where practicable;
  • minimized potential impacts to wetlands; and
  • restored or created other wetlands, to compensate for any remaining, unavoidable impacts.

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Learn More: Environmental Law

Almost every aspect of life in the United States is touched by environmental law. Drinking water must meet state and federal quality standards before it may be consumed by the public. Car manufacturers must comply with emissions standards to protect air quality. State and federal regulations govern the manufacture, storage, transportation, and disposal of the hazardous chemicals used in producing many consumer products.

The federal government has enacted many environmental laws and regulations since the National Environmental Policy Act was passed, in 1969. The Environmental Protection Agency (EPA) is the main federal agency that enforces environmental laws, but other agencies also have roles. States have their own environmental protection agencies and have established programs to enforce the federal laws, and may impose stricter standards than the federal government in some cases. Local units of government can regulate environmental effects on a local scale with tools such as zoning ordinances, which may require industrial plants to be located in places where they cause the least environmental damage, or require land developers to prevent erosion at construction sites.

Environmental laws apply to many business activities on the federal, state, and local levels and many of the requirements change often. Because penalties for violating environmental laws can be severe, including large fines, costly cleanup requirements, and even prison terms, it is important for a business owner to consult with an environmental lawyer before doing anything that may affect the environment.

Clean air practice is governed by the Clean Air Act, which requires that major sources of air pollution obtain permits that specify the volume of various pollutants they can emit. The EPA has developed standards for some common pollutants and requires states to attempt to meet those standards. Toxic air pollutants are subject to the strictest standards.

Cleanup and Superfund refer to hazardous waste sites. There are many places across the country where hazardous waste was improperly stored or disposed of and have contaminated the soil and groundwater. The EPA attempts to track down those responsible and require them to clean up the contamination. If no financially solvent responsible party can be found, the government pays for cleanup from a trust fund.

Hazardous waste is tracked from "cradle to grave" under federal regulations. Generators and transporters of hazardous wastes must comply with record keeping, reporting, and labeling requirements. Facilities that treat, store, or dispose of hazardous wastes must have permits to operate. Permits impose conditions to protect the public and the environment.

Government agencies use permits to track the quantity and kinds of pollutants being discharged into the environment, and to impose operating conditions on permit holders. Concerned citizens generally are allowed to participate in the government decision-making process for issuing, modifying, and renewing permits.

Regulatory compliance and auditing are areas in which a business can work with the EPA and state regulatory agencies to comply with environmental laws. By discovering and reporting violations voluntarily and receiving compliance training in regard to specific regulations, companies can receive favorable treatment from the government agencies.

Solid waste consists of many different kinds of waste, most of which ends up in landfills. States and local governments are the primary regulators of solid waste disposal. The EPA encourages consumers and businesses to use source reduction and recycling to reduce the amount of solid waste generated.

Water pollution is controlled by the use of permits that require discharging facilities to reduce levels of pollutants to acceptable levels. Drinking water must meet strict requirements to protect human health.

The federal government has a large role in protecting wetlands and wild lands. It administers and regulates national parks, forests, wildlife refuges, and wilderness areas. It also encourages farmers and other landowners to preserve and restore wetlands.

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