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Environmental Law
University of Dayton School of Law
Watson, Blake Andrew

Class: Environmental Law
Professor: Watson
Book: Environmental Policy Law (Chapters 2, 8, 9, 11, 4)
Authors: Doremus, Lin, Rosenburg, Schoenbaum
Spring 2011
II. Common Law Causes of Action/Remedy
If an upper riparian landowner unreasonably alters the water’s quantity or quality, lower riparian landowners may bring an action of nuisance.
Nuisance – The common law backbone of environmental law.
·         Private – an intentional, or unreasonable, and substantial interference with the use and enjoyment of land.
o   An action is unreasonable if the gravity of the harm outweighs the utility of the conduct.
1.      Extent and character of harm.
2.      Social value of the P use of land and D conduct.
3.      Suitability of the character to the locality.
4.      Burden on the P and the D of avoiding the harm.
§  Remember regard must be had for the P, D, and community.
·         Public – an unreasonable interference with the interest of the community or the rights of the general public.
o   Allows a private citizen with standing to sue.
·         Defenses –
o   Coming to the nuisance defense may limit any P from recovering if they knew, or should have known, of the situation and voluntarily placed themselves in the proximity of the activity they now claim is a nuisance.
o   Hyper-sensitive defendant, one ought not have so delicate a nose.
o   Social Utility, and the house of hogs is necessary for the sustenance of man.
Trespass – Knowing physical invasion of land without the possessor’s permission; protects the right to exclusive possession. 
o   It is a useful tool due to its comparative easiness to enforce.
o   Liable for actual damage done, and for nominal damages.
VIII. RCRA (Solid & Hazardous Waste)
Resource Conservation and Recovery Act (RCRA)
Preventative Statute
Cradle to Grave tracking and management system for Hazardous waste
Goals: designed to close the last remaining loophole of unregulated disposal
Reduce amount of waste disposed
Encourage alternatives to land disposal of hazardous waste
Most states are approved to apply their own RCRA-compliant hazardous waste program
Disposal = discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste.
Municipal solid waste (MSW)  is garbage generated by households, commercial facilities, schools, and other institutions.
·         Management of MSW
1.      Landfills
2.      Incineration
3.      Recycling
4.      Waste Minimization
RCRA Only Applies to (1) Solid Waste (2) defined as Hazardous (only solid wastes can be hazardous wastes, but not all solid wastes are hazardous wastes):
Solid Waste
·         RCRA §1004(27) – “Solid Waste” is:
(1) Garbage, (2) Refuse, (3) Various Sludge’s, or (4) other Discarded Material (solid, liquid or contained gas)
EPA Reg. §261.2 – Solid Waste = Discarded =
Inherently waste-like
RCRA Exceptions – §261.4(a-b):
Medical waste
Radioactive waste
Irrigation Return Flows
Agricultural wastes uses as Fertilizer
Untreated Sewage
Household wastes
i.                    Household waste exception even extends to incinerating facilities provided they burn only household waste and non-hazardous commercial/industrial waste.
·         Abandoned
·         Recycled
·         Inherently waste like
Materials are not discarded until they have fulfilled their intended purpose.
Reuse and Recycle as part of a materials intended purpose (encouraged because it reduces/avoids the waste/disposal problem).
1.      Immediately reused in an ongoing manufacturing/industrial process.
2.      By the generating industry itself.
3.      Has not yet become part of the waste disposal problem.
a.       But what is the real reason for imm. reuse? Is it something they would do on their own anyways, or simply because the reg. req. them to?
i.                    Oil refiners treat wastewater b/c: CWA requires, and to reclaim oil = Wastewaters Not Discarded b/c Arbitrary and Capricious: EPA needed evidence that wastewater treatment Not economically motivated (thus motivated only by CWA)
RCRA Subtitle D:
States Develop solid waste disposal plans, subject to Federal Guidelines and Approval
Discourage Open Dumping
Encourage Sanitary Landfills:
General Standard = No Reasonable Probability of causing Adverse Effects on Health of nearby individuals or Environment
Siting location
Operation – Recordkeeping, Acceptable Materials, Monitoring
Financial Requirements for Landfill Operators
Hazardous Waste
Management of Hazardous Waste
·         RCRA sets up a cradle-to-grave system for regulation of hazardous waste from their generation to their ultimate disposal. RCRA does not deal with the clean-up of inactive hazardous waste disposal sites (that is left to CERCLA).
a.       Principle thrust is oversight of hazardous waste from generation to disposal in order to protect human health and the environment.
b.      Regulates: Generation, Transport, Treatment, Storage, Disposal
RCRA Subtitle C – Applies to:
Generators :
Labeling, storage, recordkeeping, respond to EPA or state info. requests, tracking
Regulated by DOT; similar requirements to Generators
Treatment, Storage, Disposal Facilities (TSDFs)
Strict regulations
Operating methods, Facility design specs., Training, Labeling, EPA Permit
·         The ninety-day rule – generator may accumulate waste on site for 90 days provided if properly stored according to applicable requirements.
Hazardous Waste Definition:
 “Hazardous” Waste:
Hazardous Waste Definition (a waste that could hurt us or the environment):
Characteristic Waste:
Ignitable – burn easily
Corrosive – strong acids/

ction only w/ “Imminent danger to health and environment” – §7003
Specifies Cleanup Guidelines
No Cleanup guidelines
CERCLA Application Requirements:
1. Release or Threat of Release
2. of a Hazardous Substance
3. from a Facility
4. that Justifies Response Cost
Release: §9601(22)
Broad – Any Uncontrolled movement of hazardous material into the Environment
Includes Threat of Release
“Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment …
Including … Discarding of … Closed Receptacles”
Exposure solely in workplace
Motor vehicle emissions
Nuclear material/byproduct from nuclear incident
Normal application of Fertilizer
Hazardous Substance: §9601(14)
Broad – Substance on variety of agency lists
Natural or Synthetic Gas
Facility: §9601(9)
“Any building, structure, installation, equipment, pipe or pipeline … well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, OR (B) any site or area where a hazardous substance … come to be located”
Consumer Product in consumer use
Significant enough to Justify Response Costs:
Release Violates some Regulatory Standard – Applicable Relevant Appropriate Requirement (ARRA)
Main CERCLA Features:
Information Gathering
§9603 – Facilities must Notify EPA if handle hazardous waste
§9604(b),(e) – EPA may Gather information and Investigate facilities
§9611 – authorizes Fund to repay Govt. (sometimes other parties) for response costs
§9612 – authorizes AG to replenish Fund by suing responsible parties
Funded by General Tax Revenues (severely underfunded)
Originally funded by taxing Oil and Chemical companies
Federal Cleanup Authority
§9604(a)(1) – Govt. may respond to Release or Substantial Threat of Release by Removing or Remediating Hazardous Substance consistent w/ NCP
Removal = Temporary (ex. fencing, temporary housing) necessary to prevent, minimize or mitigate damage.
                                    Anywhere a threat is imminent
Remediation =
Long Term permanent remedy to neutralize the threat.