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Environmental Law
University of Wyoming School of Law
Kalen, Sam

Kalen_Environmental_Law_Spring_2010.docx
Common law actions (Bonus Points)
Strict Liability
·         Generally associated with inherently dangerous activities—abnormally dangerous conduct.
·         This comes up in the handling of certain hazardous waste.
·         Nuclear material would be strict liability prior to there being intense regulation
·         There’s a split on whether something like gasoline would belong here, or under negligence. How dangerous must it be?
Negligence
·         Fault-based system. Breach of legal duty that is the actual and proximate cause of injury.
·         Most commonly toxic torts.
Trespass
·         Intentional physical invasion of someone else’s real property.
·         Physical invasion is the disputable part. What qualifies as physical?
·         Odors are generally not enough, but dust, ashes, water pollution, and hazardous waste that seeps into soil might be.
Nuisance
·         Does not require a physical invasion and is usually defined as an unreasonable interference with another’s use and enjoyment of his or her real property.
·         Private nuisance is limited.
·         Public nuisance is fairly limited, but is an invasion of the public’s rights in general so it must be a large problem. (AEP case from Pace)
·         Some states, as a private citizen, you must show special damages to have standing to sue.
Limitations on nuisance
·         Wide open factor-based balancing test
·         Burden is on the plaintiff, not on the actor. Statutes later reverse the burden of proof.
·         Plaintiff must prove actual or imminent harm to the environment; actor needn’t prove safety
·         Plaintiffs often must wait until harm occurs (isn’t proactive)
·         Balancing test can be unpredictable. No one knows what the law may or may not require (AEP case from Pace again)
 
Oregon Dep’t. of Env. Qual. v. Chem. Waste Storage and Disposition, Inc.
·         6000 acres o alkali lake bed used to deposit pesticide waste. Legal at the time. P alleges nuisance—if so, has to clean up and go away.
·         Gov wants site declared public nuisance because of harm to human comfort, safety, or health.
·         State allegations: 1) human or animal harm; 2) contamination of water; 3) odor.
·         Violation of environmental statute is not the same thing as a public nuisance. Only acts as evidence of one.
·         Holding: 1) contrary to lower court, storage of waste material does not constitute a public nuisance; and 2) the defendant is currently operating a disposal site, which is subject to the statutory provisions with which he must comply.
Fraudulent concealment
·         Used when polluter fraudulently conceals pollutants. Lies about it, for example. This can be used to toll the statute of limitations for another action.
 
 
RCRA – Resource Conservation and Recovery Act
 
Overview
·         Trigger #1: Is there solid waste?
o   NO: RCRA does not apply.
o   YES: Trigger #2: is the waste hazardous waste?
§ NO: Subtitle D applies – mostly state regulation (probably not on test)
§ YES: subtitle C applies
·         Requirements for Generators
·         Requirements for Transporters
·         Requirements for TSD facilities
First trigger – solid waste
·         There exists “solid waste.”
·         Definition of solid waste: (RCRA regulations)
o   “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.”
o   Note: Can be semisolid, liquid, and even gaseous. Does not have to be discarded material.
·         Any “discarded material” is solid waste.
o   Abandoned material
§ Common law definition of abandonment
·         Intent to abandon, and some over act to show you abandoned.
·         RCRA has incorporated this definition through case law.
o   Recycled material
o   Material considered “inherently waste like”
o   EPA says three major ways to abandon material:
§ Dispose of it
§ Burn it
§ Accumulate, store, or treat stuff before you dispose of it, then it becomes solid waste at the moment you accumulate it.
·         Whether material is abandoned is fact-specific.
·         No Spray Coalition, Inc. v. City of New York: Discarded material is material that must have served its intended purpose. Citing Connecticut Coastal, where skeet club allows lead munitions to accumulate in a water body for a long time. No bright-line rule.
·         Intended purpose: Water Keeper Alliance v. Us Dept of Defense (2001): Fired munitions, P said the munitions were discarded as soon as they were fired, but gov said served purpose when it fell. Court deferred a lot to the military.
o   Bottom line: in at least the case of insecticide and munitions, cannot be considered discarded until some indefinite period of time has elapsed after they served their intended purpose
 
Recycling (and sham recycling)
·         Intended purpose can be a sham.
·         Sham recycling is recycling for the purpose of avoiding RCRA’s trigger.
·         American Mining Congress v. US EPA (AMC I)
o   Materials which have not yet become part of the waste disposal system, and
o   That are destined for beneficial reuse or recycling in a continuous process by the generating industry itself
o   Is not going to trigger RCRA
o   “Closed loop system.” Must have immediate reuse of the byproducts (secondary materia

ber
o   Accumulating and storing in compliance with regulations
o   Preparing for transportation
o   Keeping records and reporting/starting the hazardous waste manifest
o   Types of generators
§ Fully regulated: more than 1000kg per month. Subject to all regulations.
§ Small quantity generators: 100-1000kg per month. Subject to most regulations.
§ Conditionally exempt generators: less than 100kg per month. Exempt from most of the onerous generator requirements.
·         Don’t need to send hazardous waste to RCRA licensed TSD facilities.
o   Key issue:
§ If it’s not listed then you must test it.
§ Make sure they test whatever product they produce to determine whether or not is a hazardous waste.
§ Obviously, if listed, they should know this. If not, need to test to see if it meets the criteria.
§ Must create a manifest if it is hazardous. Manifest is a report log of the situation.
o   If the generator holds the waste for too long (90 days), they may be considered a storage facility.
§ Except for small quantity generator: gets to store on site for 180 days, or 270 days if the nearest TSD facility is over 200 miles away.
o   If the generator starts messing with the material, they may be considered a treatment facility.
·         Transporters (moves stuff from generator to TSD facility)
o   If you hold it too long you could be considered a TSD facility.
o   REQUIREMENTS FOR TRANSPORTERS:
§ Obtain EPA Id number
§ Comply with manifest system
§ Properly handle hazardous waste discharge
·         TSD facilities (treatment, storage, disposal)(you want your client to avoid this)
o   Six common types of TSD facilities
§ Incinerators
§ Surface impoundments
§ Land treatment facilities
§ Underground injection wells
§ Containers/Tanks/Waste piles
§ Landfills
o   REQUIREMENTS: (this stuff costs a lot of money, could bankrupt a company)
o   Maintain records about the waste
o   Comply with reporting, monitoring, inspection requirements
o   Complete the manifest
o   Treat, store, and dispose of hazardous waste according to regulations
o   Comply with location, design, and construction requirements for the facility
o   Generate contingency plans
o   Comply with financial responsibility requirements