ENVIRONMENTAL LAW PRIVATE REMEDIES
Civil Law * written codes which rely on statutory material, traditions * Judges has small role
Common Law * Based on customs of the areas, precedents * Judge made law – cases decided by judge

US * Mostly statutory, but judges are important * Interpret statues * Judge decides if not codified * Criminal – against State * Civil – all other

Environmental Law not very effective if using private remedies

PRIVATE REMEDIES | GOOD | BAD | Develop theory and needs | After the fact | Push legislation | Disorganized | Day in court | Costly | Money damages | Only personal damages |
Tort Law - wrongful acts vs. contract law 1. Negligence a. Duty owned b. Unreasonable act c. Personal Injury d. Ex: pesticides

2. Trespass e. Tied to property rights f. Property invasion g. Ex: dam building (H2O invasion)

3. Nuisance h. Tied to unreasonable use interfering with another’s use i. Property use damaged j. Loss of livability k. Can’t move TO a nuisance l. Standing question i. cannot sue unless suffer special damage ii. different in kind, not just degree m. Ex: smoke, sewage treatment, hog farm, airport

CIVIL REMEDIES 1. Monetary damages – personal things $ can fix

2. Injunctive relief – environmental, $ can’t replace, make do something a. Negative – DON’T do something b. Mandatory / Positive – Require to DO something c. Declaratory Judgment – do BEFORE; doesn’t work b/c US legal system adversarial

3. Strict Liability – Special cases d. e. Liability without fault in very dangerous activity i. Was it done? ii. Was plaintiff harmed iii. NOT whether harm done iv. Requires highest care f.
To win v. Prove duty owed vi. Lack of reasonable care vii. Damage results g.

h. Examples: caged wild animals, water impoundments, viii. Reynolds metals – HFl acid by-product kill animals, cause property damage ix. Chalk Point Power Plant – Benedict, MD – Coat fire fly ash damage barn paint

4. Burden of Proof = preponderant of evidence (not beyond reasonable doubt)

5. Negligence i. res ipsa loquitor: the things speaks for itself j. defendant knew the danger k. must be guilty if harm caused l. wouldn’t have happened if handled properly m. ex: useful if evidence unavailable/personal injury x. sometimes, direct evidence of negligence is not needed xi. circumstances surrounding accident constitute sufficient circumstantial evidence of defendant’s negligence 1) accident would not have ordinarily occurred in the absence of negligence 2) cause of injury was under the management and control of defendant 3) ex: Mobil Chemical Co vs. Bell

6. Public Nuisance – a crime against the order and economy of the state n. Statutory o. Every act unlawfully done and every omission to perform a duty, which act or omission shall unlawfully interfere with, befoul, a lake, navigable river, bay, stream, canal or basin p. Public Prosecutor abates xii. Ex: state of MD vs. farmers – leased crops and Ches Bay BMPs

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) - 1969 1. Purpose a. To declare a national environmental policy b. To establish the Council on Environmental Quality (CEQ)

2. Policy will: c. Stimulate health and welfare of man d. Encourage productive harmony btwn man and environment e. Enrich understanding of ecological systems and natural resources f. Promote efforts to prevent or eliminate damage to environment and biosphere

3. Enforcement and Effectiveness g. No power but enormous room for interpretation h. Nonspecific language gives lawyers standing to argue points and get injunctions to stop projects i. Some agencies see EIS as ends in itself rather than tool to aid decision making j. Substantive? – reasoned decision making and adequate EIA – More so in the past k. Procedural? – allows project to go - currently i. Gulf Oil/New Horizons Scandal 1) Mineral Management Services Bribery? 2) Center for Public Integrity – NEPA permits for energy et al using federal lands and money rushed thru without public oversight and in areas where severe env’l impacts 3) Will we begin to see more substantive again?

Title I: Declaration of National Environmental Policy 1. Section 101 a. Recognizes profound impact of man on all components of natural environment 1) 2) Population 3)
Industry
4)
Urbanization
5)
Resources
i.

b. Declares that it is the continuing policy of Fed Gov. in coop with state and local and concerned public and private organizations to use all practicable means – financial and technical – 6) to foster and promote general welfare 7) to create & maintain conditions where man and nature can exist in productive harmony 8) To protect human health and the environment

c. Recognizes that we are trustee of the future d. Will promote health and safety e. Use the environment without degradation f. Encourage preservation g. Balance population and resources to improve standard of living h. Encourage recycling i.

2. Section 102 - Environmental Impact Statement (EIS) a. Fed Gov. will use i. Systematic interdisciplinary approach to planning ii. Develop quantitation and accounting for amenities iii. In every recommendation or report of federal actions or legislation with significant impact on quality of environment must include EIS, including: 1) Statement of environmental impact 2) Adverse effects that are unavoidable 3) Alternatives 4) Short-term and long-term uses 5) Irreversible resource commitments 6) Provided to a) President b) CEQ c) Public

Title II – Reporting and CEQ 1. Section 201: President will submit RTC on: a. status and conditions of environment – air, water, marine, terrestrial (urban and rural) b. Trends in environmental quality c. Adequacy of natural resources d. Review of environmental programs e. Program for remedying deficiencies f. Last in 1997 due to 1995 Federal Reports Elimination and Sunset Act 2. Section 202: Creates CEQ g. 3 member council h. Appointed by president i. Qualified and serve at pleasure of president 3. Section 203 – other CEQ employees as appropriate 4. Section 204: Duties of CEQ j. Advise president k. Gather data l. Review programs m. Develop policies n. Document changes o. Report at least once per year p. Current chair = Nancy Sutley 5. Budget q. Originally $1 million/year

Enforcement and Decisions – Courts defined and redefined what NEPA actually means 1. EG Calvert Cliffs VS AEC a. established Cost Benefit Analysis b. EPA must fine tune balance btwn social and economic issues c. Very powerful, substantive decision 2. EDF vs. AEC d. NEPA more than procedural; more than just its words e. Dam building on Columbia River f. Holding interpreted as proposer must choose plan with greatest benefits vs. costs g. Must consider cumulative effects (e.g. multiple dams) h. Must propose alternatives i. Stop project if cost exceeds benefits (ex: Jordan Dam case) 3. As of late 1970’s – 2-3 page act generated many reports measured in pounds, spawned many law suits and jobs for lawyers and activists j. Alaska Oil Pipeline case 4. Three Mile Island – Metropolitan Edison Co v People Against Nuclear Energy 1983 k. DO NOT have to consider the psychological health damage from the risk of a nuclear accident to residents near the nuclear plant that restarting the plant would cause. i. Only have to assess impact on the physical environment. ii. Don’t have to evaluate the effects of risk. The risk of an accident is not an effect on the physical environment 5. Southern Oregon Citizens Against Toxic Spray vs. James Watt l. 2,4,5-T herbicide unknown effects m. Worst case analysis must be included 6. Foundation on Economic Trends (Jeremy Rifkin) vs. Walter Heckler (NIH) n. Recombinant DNA/Genetically Engineered materials released into the environment o. Ice- p. 1978: NIH RAC >> EPA (FIFRA, TSCA) q. 1988: Don’t need worst case but need include bad case (low probability & high consequences)

* NEPA amended 1977/79 to simplify EIS - Carter Executive Order – tie to decision making * Limit 150 pages * More analysis, less description

* ~100-150 NEPA cases annually

Environmental protection intent/focus in all Federal environmental laws but they are usually focused on human health (~90%). Only CWA has environment as important focus (~10%).

CLEAN AIR ACT – 1970 + ’77 & ‘90 1. Intent: to protect and enhance air quality a. Public health protection – Primary b. Welfare/Environmental protection – secondary

2. Considers two source classes c. Stationary d. Mobile

Title 1: Stationary Sources 1. National Ambient Air Quality Standards (NAAQS) - Criteria Air Pollutants in Outdoor Air | Primary Standards – HEALTH 1) No safety factor built in. If get to these # you are at risk 2) Reviewed every 5 years | Secondary Standards-Amenities (e.g. visibility) | Pollutant | Notes | Level | Av'ing Time | Level | Aving Time | Carbon Monoxide | * Acutely toxic * Mostly from auto combustion | 9 ppm
(10 mg/m3) | 8-hour (1) | None | | | 35 ppm
(40 mg/m3) | 1-hour (1) | | Lead | * Not acutely toxic * Used to be in gas * Lead-free in most countries now | 0.15 µg/m3 (2) | Rolling 3-Month Average | Same as Primary | Nitrogen Dioxide | * Not related to health directly but in chemical chain in production of O3 * Hi T/P combustion * Stationary and mobile (auto combustion) sources | 53 ppb (3) | Annual
(Arithmetic Average) | Same as Primary | | | 100 ppb | 1-hour (4) | None | Particulate Matter (PM10) | * < 10 microns * Cement plants, diesel | 150 µg/m3 | 24-hour (5) | Same as Primary | Particulate Matter (PM2.5) | * < 2.5 microns (1~bacteria) * Inhale deeply into lungs * PM 2.5, more risky than ever thought it was | 15.0 µg/m3 | Annual (6)
(Arithmetic Average) | Same as Primary | | | 35 µg/m3 | 24-hour (7) | Same as Primary | Ozone | * No direct source * By-product of NO2 + VOx in sunlight * Single highest threat right now | 0.075 ppm
(2008 std) | 8-hour (8) | Same as Primary | | | 0.08 ppm
(1997 std) | 8-hour (9) | Same as Primary | | | 0.12 ppm | 1-hour (10) | Same as Primary | Sulfur Dioxide | * Coal burning, some autos * Acutely toxic and chronic effects * Better now | 0.03 ppm | Annual
(Arithmetic Average) | 0.5 ppm | 3-hour (1) | | | 0.14 ppm | 24-hour (1) | | | | | 75 ppb (11) | 1-hour | None | 2. NAAQS a. Can do better testing since 1970 i. Survey methods ii. Epidemiology b. Attainment iii. Area considered to have air quality as good as or better than the NAAQS. Area may be an attainment area for one pollutant and a non-attainment area for others. iv. standard metropolitan statistical area (geographic/county) v. Ambient air not what coming out of stacks c. Implementation vi. State Implementation Plans (SIPs) define how NAAQS will be achieved within a state 1) Approved by EPA or EPA will implement 2) Attainment areas and tall stacks issue >> solution to pollution is dilution

3. New Source Performance Standards (NSPS) a. Same type of emitter, but new source b. New diesel standards – ultra low sulfur fuel

3. National Emission Standards for Hazardous Air Pollutants (NESHAPs) c. At smoke stack/effluent gases d. up to $50k/day/violation e. difficult for business to keep up with changes

Title 2: Mobile Sources 1. Manufacturing Standards >> catalytic converters (help complete combustion ∴ less CO) federal requirement for use and durability

2. Performance standards a. tailpipe emissions b. MPG requirements for average for fleet in class by one company i. 27 mpg by 1984 ii. 27.3 mpg achieved by 1982 iii. Better now iv. 2007 – 35 mpg in 2020

3. Gasoline standards – Pb in gas out (originally to get knocks out and lubricate valves)

Approaches to achieve goals 4. Command and Control c. Sanctions v. No new highway construction funds vi. No sewer funds – controls development ∴ industrial growth vii. No air quality planning grants d. Market approaches: Theory – less pollution at less cost viii. 1976 offsets for new construction ix. Bubbles – whole plant vs. each stack (1993 regional and intraplant) x. Banking – national emission trading credits (e.g. SO2 emissions) 1) Federal gov't created market in emission credits 2) Market didn’t last b/c everybody fixed own problems so not beholden to other companies (bad for business) xi. Netting: reduce emissions in one plant, increase in other attainment area only xii. Offsets: trade in overall emissions between areas >1:1 reduction in non-attainment. May have to buy plant and close it to get overall/net reduction

1990 CAA Amendments
Title I 1. There are still air quality problems. 40% live in non-attainment. Big Three in order a. Ozone (tropospheric) – 135 million live in non-attainment b. PM10 50 million live in non-attainment for PM 2.5 c. Carbon Monoxide 2. Increase time to achieve NAAQS, but show progress. d. EPA defines classification of non-attainment e. More narrowly cast boundaries f. Ex: regulation of fuel and additives: reformulated gas reqs for former severe nonattain under 1-hr O3 stnd were redesgn’d to attain for 1-hr stnd prior to its revocation, which are current nonattain area for 8-hr O3 stnd ∴ DC no longer severe nonattain b/c changed terms – dropped 1-hr stnd and now call it “moderate” nonattainment but with same reqs for cleanup Problem | Classification | Response | EX | Ozone.Proposed Revisions to Primary Ozone Standard a. Set in range of 0.070 – 0.075 ppm to protect public health with adequate margin of safety based on strong body of clinical evidence of adverse health effects in healthy people at exposure levels of 0.080 ppm (current) b. Currently not technically attainable | Marginal | Permit and progress | | | Moderate | | | | Serious | Varying response | DC 2002 | | Severe | | DC 2003 | | Extreme | Greatest response | | CO – More reduced than CO2 from incomplete combustion, not getting as much energy as can | Moderate | | | | Serious | | | PM 10 | RACM - Reasonably achievable control measures-$ OK | | BACM - Best available control measures - $ |
Title II: Mobile 1. Reduce HCs, CO, NO (1990) 2. Reduce VOC at refuel (gas pumps) 3. Reformulated fuel in 1995 for 9 worst cities (others could opt in) 4. Oxygenated fuel additives provide O2 for more complete combustion a. Alcohol - add ethanol to all gas b. MBTE (methyl tertiary butyl ether) – more soluble in water (LUST). Not really sure if bad for human health 5. Clean Fuel Car Program – CA – 1996 – 2001 (150 – 300,000 cars)

Title III – Air Toxics (AT) 1. Never got around to do anything previously b/c unfunded 2. Pre-1990: only 7 air toxics 3. Estimate 1-3,000 deaths per year due to AT (cancer) 4. Post-1990: 188 AT listed and to be reduced 5. Source categories (from equipment leaks, when materials are transferred from one location to another, or during discharge through emission stacks or vents)

a. Major sources emit: i. 10+ tons/year of any of the listed toxic air pollutants, or ii. 25+ tons/ year of a mixture of air toxics

b. Area sources are smaller-size facilities that emit in less populated areas.

6. Maximum Available Control Technology (MACT) a. Emission standard for sources of air pollution requiring maximum reduction of hazardous emissions, taking cost and feasibility into account. b. Start 1992 to be completed by 2002 c. EPA reassesses risk to determine if greater controls are needed

7. Sierra Club vs. EPA 2006 a. EPA grossly delinquent in protecting public from air toxics b. Issues i. Benzene in gas reduction (leukemia) ii. Lower standard iii. Down by 80% in next 20 years iv. Use trading program v. Is this good for air toxics?

Title IV: Acid Deposition 1. New in 1990 2. Regan required study – National Acid Deposition Program 3. Decade long study >> Bush regulated all coal powered power plants 4. Emissions Trading Allowances a. SO2 reduce by 10 million ton/year vs. 1980 i. 1995: 110 plants 2.5 lbs. SO2/mm BTU x av. fuel use (1986) ii. 2000: 2,000 plants 1.2 lbs. SO2/mm BTU x av. fuel use (1986) iii. All achieved standards before due date! b. Monitoring program for missions c. Trade allowances – buy or sell but must have enough to cover all emissions 5. NOx - start 1992 b/c more difficult issue (mobile sources) not trading allowances

Title V: Permits 1. Modeled on NPDES in CWA >> consolidated for industry, makes easier to comply 2. States grant permits 3. EPA approves state program and provides oversight

Title VI: Ozone and Global Climate 1. Commits US to Montreal-like Protocol for reduction of ozone depleting chemicals. Sped up b/c found out worse problem than originally thought 2. 1994: no non-essential CFC 3. 2000: non CFC, halon, CC14 4. 2030: no HCFC

CLEAN WATER ACT - 1972
1948: Federal Water Pollution Control Act (FWPCA) 1. Basis of act - Reason why feds can regular water quality since watersheds are wholly contained within a state= Commerce Clause of Constitution regarding Navigation Servitude = waters of the US (surface water) a. Rivers and Tributaries b. Lakes & Estuaries c. Coastal waters & Wetlands d. Inter-/intra-state waters

2. GOAL – e. Fishable/Swimmable – only act with focus on environment f. 1983: To restore & maintain the chemical, physical, biological integrity of the nation’s waters so that they can support i. protection and propagation of fish, shellfish, and wildlife ii. Recreation in and on the water g. 1985 Goal: Zero discharge of pollution not creating harm iii. Contamination = not natural iv. Pollution = harmful or detrimental

Title I Section 102: Water Quality Standards - 3 major components: 1. Designated Use (DU): Uses that society, through state and federal governments, determines should be attained in the water body. Set by states. Economic factors can be considered when setting the DU for a water body. In contrast, economics cannot be factored in when developing the WQC to protect a DU. i. a. Drinking water - Treated/untreated b. Water-based recreation - Noncontact/short-term/long-term c. Fishing/eating d. Aquatic life ii. iii. Warm water species/habitat iv. Cold water species/habitat e. f. Agriculture water supply g. Industrial water supply water quality criteria,

2. Antidegradation provisions - three components, or "tiers" of protection >> Don’t make worse b. protection and maintenance of existing uses of waters, c. protection of high quality waters, and d. outstanding national resource waters.

3. Water Quality Criteria (WQC) = levels of individual pollutants or water quality characteristics, or descriptions of conditions of a water body that, if met, will generally protect the designated use of the water. a. | Causes of Impairment for 303(d) Listed WatersTotal: 71,309 Causes of Impairment | National Cumulative TMDLs by Pollutant. This chart includes TMDLs since October 1, 1995. Total: 44,519 TMDLs; 46,993 Causes of Impairment Addressed | | Cause of Impairment Group Name | # Causes Impairment Reported | # TMDLs | #Causes Impairment Addressed | | Pathogens = Coliforms | 10,858 | 9137 | 9370 | | Metals (other than Mercury) | 7,459 | 7976 | 8154 | | Nutrients | 7,028 | 4816(4) | 5748 | | Organic Enrichment/Oxygen Depletion = BOD | 6,502 | 1921 (6) | 2028 | | Sediment | 6,267 | 3553 | 4102 | | Polychlorinated Biphenyls (PCBs) | 6,190 | 419(13) | 439 | | Mercury | 3,769 | 6946 (3) | 6978 | | pH/Acidity/Caustic Conditions | 3,724 | 1798(8) | 1854 | | Others | Turbidity, T, Pesticides | | |

b. Impaired ~ CAA non-attainment c. By 2000 developing better criteria and standards program d. 40% of waters not in compliance (impaired) e. State set standards based on DU and devise a program to achieve quality. Consistent scientifically with protecting all DU

f. Types WQC i. Numeric ii. Water column/sediment/fish iii. Acute/chronic

g. Categories WQC iv. Aquatic life v. Human health (drink/eat fish) vi. Wildlife (semi-aquative/food chain effects)

h.

e. New Criteria - Nutrients - Nitrogen and Phosphorus - consistently ranked as one of the top causes of degradation in some U.S. waters for more than a decade. Excess nitrogen and phosphorus lead to significant water quality problems including harmful algal blooms, hypoxia and declines in wildlife and wildlife habitat. Excesses have also been linked to higher amounts of chemicals that make people sick. f. New - Biocriteria to Evaluate Aquatic Life Use Support. Watershed health. Determining which water bodies are impaired by sources of pollution, hydrological modifications or other stressors. Ideal for revealing the cumulative impacts of all stressors within a water body and should be integrated with traditional chemical and toxicity assessments. g. New – Microbial Pathogen Criteria – Human Health. Concerns about future increases in microbial contamination and potential for emergence of new threats. Address all important sources of contamination; anticipate emerging problems, and use program and research activities efficiently to protect public health.

Title I Section 104: EPA and states monitor quality

Title I Section 105: Research grants program

Title I Section 106: Grants to states to prevent, reduce, and eliminate pollution. Supplements state funds for planning, etc.

Title II: Construction Grants 1. POTW for wastewater treatment – planning, design, construction – POTWs make $ for municipality. Also attract business, industry, residents. 2. Federal share was 75% in 1972 3. 55% in 1984 4. Now Reserve Capacity

Title III: Sets Standards and Enforcement Powers 1. Violations a. Civil = $25,000/day b. Criminal = $50,000/day + 5 years in prison

2.

3. Section 303d: Threatened and Impaired Waters List - Total Maximum Daily Load (TMDL) c. There in 1972 but never used until 1990 d. Pollutant budget for stream or segment which, if not exceeded, would result in achieving WQS e. Maximum amount of a pollutant that a water body can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. f. TMDLs developed only for waters affected by pollutants where implementation of the technology-based controls imposed upon point sources by the CWA and EPA regulations would not result in achievement of WQS.

4. Urban Stormwater – g. 1000’s of waters listed for impairments from stormwater sources. i. sediment, ii. pathogens, iii. nutrients, and iv. metals. h. Need TMDL which identifies the total pollutant loading that water body can receive and still meet water quality standards, and specifies a pollutant allocation to specific point and nonpoint sources. i. NPDES stormwater permitting system. More detailed quantification of stormwater allocations in TMDLs that are more useful for implementation in NDPES permits.

5. Section 319: Nonpoint Source (NPS) Program j. Over half contamination from NPS k. Best Management Practices (BMP) – not legally enforceable, mostly incentivized programs l. nutrients (phosphorus and nitrogen), m. pathogens, n. clean sediments, o. oil and grease, p. salt, and q. pesticides.

Title IV Section 402: NPDES Permits. Point source – pipe, effluent streams. Sets limits on amt of various pollutants that source can discharge in given time 1. Effluent (discharge) limits – end of pipe performance standards 2. Best Management Practices (BMP) for industrial waste streams. Technology-based stnds a. Best Practicable Technology (BPT): average b. Best Available Technology (BAT): Cadillac 3. Compliance schedules c. Self-Monitoring / Reporting requirements: Facilities req’d to gather/report on rep data samples d. Federal regs specify reqs; each permit describes/specifies conditions. e. EPA inspects and can enforce permit reqs 5. Mandate >> All POTW include secondary treatment a. Primary = get rid of stuff that sinks and/or floats b. Secondary = treat dissolved organic. In aerobic, metabolize organic matter ∴ no food for bacteria (use O2 >> anoxic) 4. Combined Sewer System Overflow (CSO) f. Sanitary sewage + storm water g. Dry weather - carry sanitary to WWT>treat to levels in NPDES permit. (EPA regs prohibit untreated discharges from combined sewer systems during dry weather.) h. Wet (rain/snow melt) carrying capacity ↑>> combined sewer overflow (CSO) discharges contain stormH2O + untreat human/indus waste, oil/grease, metals, sediments, floating debris. Untreat CSO discharge>> beach close, fishing restrict-avoid spread human pathogens/resulting illness.

5. 1977 Amendments – Industrial Classes of Pollutants (NRDC suit) i. Conventional – BCT - Best Conventional Technology 1984 (replaces BAT for these pollutants) i. ii. Oil & grease iii. Solids/TSS iv. coliforms – indicator org of fecal contam v. BOD – biochemical/logical oxygen demand >> food bacteria eat vi. pH = negative log of H+ activity per liter

j. k. Toxic Priority Pollutants– BAT – Best Available Technology 1984 vii. viii. Metals ix. Pesticides x. PCBs xi. PAH l.

m. Non-conventional xii. xiii. N & P >> algae bloom, bacteria eat > anoxic xiv. COD = Chemical Oxygen Demand xv. Ammonia (NH3) Hi pH, toxic, sucks out O2 xvi. TOC = Total Organic Carbon xvii. Chlorine 6. 7.

6. NPDES Enforcement a. Primary responsibility – states b. Increased emphasis on compliance assistance c. Focused on “majors” i. POTWs serving 10,000+ ii. Industries – look at flows, toxics, etc. iii. Penalties 1) Fines 2) Imprisonment 3) Supplemental environmental projects (SEPs) 7. Citizen suits directed against discharge

State Revolving Loan Funds * 1972 - $25 billion – Nixon vetoed and overridden * 1987 - $18 billion – Reagan vetoed and overridden * 1991 - $75 billion * 2001 - $93 billion * 2004 - $202 billion

SAFE DRINKING WATER ACT – 1974 + 1996
Intent: To establish and enforce national drinking water standards
Overview
1. EPA sets and enforces standards for Public Water Suppliers (20+ connections) 2. Primary Standards – health, legally enforceable a. Maximum Contaminant Levels (MCL): max permissible level of contaminant in water delivered to any user of a public system. MCLs are enforceable standards. Safety factors built in. i. Metals. Eg: Lead/copper are regulated by Treatment Technique that reqs systems to control corrosiveness of water. If 10%+ of tap water samples > action level, water systems must take additional steps. Copper action level + 1.3 mg/L, lead = 0.015 mg/L. ii. iii. Inorganic chemicals iv. Pesticides v. Industrial chemicals vi. Microbiological vii. Radiological viii. ix. Tested at the tap x. Report required to send to customers once/year or if violation b. Maximum Contaminant Level Goal (MCLG): Non-enforceable concentration of drinking water contaminant, set at level no known or anticipated adverse effects on human health occur and which allows an adequate safety margin. Starting point for determining the regulated MCL. 3. Secondary Standards– Guidelines, not legally enforceable List of National Secondary Drinking Water Regulations | Contaminant | Secondary Standard | Aluminum | 0.05 to 0.2 mg/L | Chloride | 250 mg/L | Color | 15 (color units) | Copper1 | 1.0 mg/L | Corrosivity | noncorrosive | Fluoride | 2.0 mg/L | Foaming Agents | 0.5 mg/L | Iron2 | 0.3 mg/L | Manganese | 0.05 mg/L | Odor | 3 threshold odor number | pH | 6.5-8.5 | Silver | 0.10 mg/L | Sulfate | 250 mg/L | Total Dissolved Solids | 500 mg/L | Zinc | 5 mg/L |
Taste Odor Appearance 4. Exemptions possible if BEST water cannot be “cleaned “ 5. States can gain primacy

1 Corrosive well water will dissolve copper pipes
2 Ferric (Fe2+) more O2 than Ferrous (Fe3+) which is more reduced and more soluble in water, esp. anoxic. Turnover/thermocline.

Contaminant | MCLG (mg/L) | MCL or TT (mg/L) | Potential Health Effects from Long-Term Exposure Above MCL (unless specified as short-term) | Sources of Contaminant in Drinking Water | Arsenic | 0 | 0.010 (01/23/06) | Skin damage or problems with circulatory systems, and may have increased risk of getting cancer | Erosion of natural deposits; runoff from orchards, runoff from glass & electronics production wastes | Nitrate (NO3-) as N | 10 | 10 | Infants below the age of six months who drink water containing nitrate in excess of the MCL could become seriously ill and, if untreated, may die. Symptoms include shortness of breath and blue-baby syndrome. | Runoff from fertilizer use; leaking from septic tanks, sewage; erosion of natural deposits | Nitrite (NO2-) as N | 1 | 1 | | | Total Trihalomethanes (TTHMs) = chloroform | --> n/a | --> 0.080 | Liver, kidney, central nervous system problems; increased risk of cancer | Byproduct of DW disinfection |

Microorganism Contaminant | MCLG (mg/L) | MCL or TT (mg/L) | Potential Health Effects from Long-Term Exposure Above the MCL (unless specified as short-term) | Sources of Contaminant in Drinking Water | Giardia lamblia | zero | TT | Gastrointestinal illness (e.g., diarrhea, vomiting, cramps) | Human and animal fecal waste | Heterotrophic plate count | n/a | TT | No health effects; analytic method to measure variety of bacteria common in water. Lower concentration of bacteria in drinking water, better maintained the water system is. | HPC measures a range of bacteria that are naturally present in the environment | LegionellaIndicator of potential fecal contamination. Allow certain % b/c not all coliform is fecal | zero | TT | Legionnaire's Disease, a type of pneumonia | Found naturally in water; multiplies in heating systems | Total Coliforms (including fecal coliform and E. Coli) | zero | 5.0% | Not a health threat in itself; it is used to indicate whether other potentially harmful bacteria may be present5 | Coliforms are naturally present in the environment; as well as feces; fecal coliforms and E. coli only come from human and animal fecal waste. | Turbidity | n/a | TT | Cloudiness of water; used to indicate H2O quality, filtration effectiveness (whether disease-causing organisms present). Hier turbidity levels > hier levels disease-causing microorgs (viruses, parasites, some bacteria). Orgs can cause nausea, cramps, diarrhea, associated headaches. | Soil runoff | Viruses (enteric) | zero | TT | Gastrointestinal illness (diarrhea, vomiting, cramps) | Human and animal fecal waste |

FEDERAL INSECTICIDE, FUNGICIDE and RODENTICIDE ACT (FIFRA) 1947 +79 + 88 + 96

1. Registration and Labeling Law a. 20,000 + registered b. Hold manufacturers responsible for labeling and safety c. Can be liable if used against label instructions

2. Goal: d. To prohibit the introduction of compounds as pesticides that pose an unreasonable risk of adverse effects on human health or the environment e. Balance benefits and risks of overt toxins

3. 1996 - Food Quality Act f. Infants and children - aggregate risk g. Juveniles most susceptible to toxics h. Amends FIFRA and FDC (1938 FDA set food tolerance limits)

4. Approaches i. Premarket Registration – to assure that pesticides are safe, effective, claims warranted i. Give EPA data before sell new product ii. May be very limited uses j. Industry proves product is safe and effective based on chemical and toxicological testing data k. EPA sets Food Tolerances (Non-Zero), under FDC with FDA iii. Very low iv. Growing, processing, purchase v. Incoming food inspection minimal due to volume and cost

5. Other provisions l. Review of “old” pesticides (previously registered). Remove from commerce if “unreasonably risky” by 2006 vi. All chlorinated hydrocarbon pesticides registrations cancelled vii. Review registrations every 15 years or when new use or new location viii. DDT removed by Congress m. Classification: General vs. Restricted Use (everyone vs. trained, farmers, licensed pest control; usually more toxic) n. Experimental and Emergency Use Permit ix. Special, local needs x. Trials for new/proposed o. State Programs – training of certified applicators p. Economic Loss analysis xi. When there is a change from old xii. Can petition to use older, less safe pesticide after Economic Impact Analysis (ex: farmers) xiii. Benefit vs. Cost

6. Endocrine Disruptor Screening Program q. Various synthetic organic chemicals r. Diethylstilbestrol – pharmaceutical for miscarriages/morning sickness >> uterine cancer & micro phallus s. Biphenyl A – plastic water bottles t. DDT: soft egg shells of predatory birds

8. Enforcement a. Stop sale b. Stop use c. Remove from commerce d. Seize e. Cancel registration and/or modify registered uses f. 1 -- DDT
1 -- DDT
Suspend sale and use immediately i. Economic Impact Analysis by EPA ii. Rarely used iii. Emergencies when people will fall over dead

9. Examples g. DDT – 1972 legislation – “eco systems have rights” – raptor egg shells. Not very toxic to people; very long life (persistent)

h. 2 -- ALAR
2 -- ALAR
ALAR – 1985 – Uniroyal Chemical Co. iv. Daminozide v. Apples for crop growth control vi. Fruit ripening vii. Cancer risk 1) Standard = 1 in 1 million 2) EPA = 1.8 in 1 million 3) NRDC = 2-3 in 1 million 4) Kids eat more apples than adults

i. Chlorpyrofos – 2000 viii. Organophosphate ix. Regulated 2000 FQPA x. Large use pesticide in many things. EPA estimates that about 20 million pounds applied in US/year – ½ agriculture & ½ residential uses 5) Termites 6) Insecticide corn and cotton 7) 3 -- Chlorpyrifos
3 -- Chlorpyrifos lawn pests. xi. Food risk on apples xii. Known health effects 8) Neurotoxicity 9) Suspected hormone disruption xiii. Cancel on tomatoes, all indoor and outdoor residential use, in schools, parks j. Organophosphate pesticides xiv. Sarin xv. VX nerve agent xvi. Irreversibly inactivate acetylcholinesterase, which is essential to nerve function in insects, humans, and many other animals. Acetylcholine inhibitor causing continued firing of nerve. Affect this enzyme in varied ways, and thus in their potential for poisoning. xvii. Degrade in sun xviii. Symptoms, inc. CNS Problems 10) Headache 11) Dizziness 12) Nausea 13) Cramping 14) Blurred vision 15) Tightness of chest 16) Labored breathing 17) Excessive sweating 18) Frothing of the mouth 19) Convulsions 20) Coma 21) Death

k. Bacillus thuringiensis xix. Bacterium (similar to anthrax) xx. Spores xxi. Makes a ”delta” endotoxin (crystal) xxii. Released in digestive tract of insects 22) Gypsy moths 23) Tent caterpillars 24) Moths 25) Beetles xxiii. Genetically inserted into other bacterium xxiv. Serves as incubator that produces Bt proteins xxv. Gene for Bt protein inserted in P. florescens. xxvi. As P. fluorescens grows, the imported gene codes for desired Bt toxin xxvii. Bt corn: GMO protein that kills European corn borer alternative to spraying insecticides for control 26) Corn producing its own insecticide 27) Not a problem so far for human health and the environment

TOXIC SUBSTANCES CONTROL ACT (tsca) – 1976 1. Goal a. To identify and control chemical hazards to human health and the environment b. Comprehensive, regulates potentially dangerous – anything of commercial nature c. Production of chemicals that might be risky and their use in commerce

2. Covered compounds d. e. News and existing f. Organic g.
Inorganic
h. Artificial i.
Natural (in commerce) j. Mixtures

3. Control points k. Introduction, Production, Distribution, Use – of any chemical which presents an unreasonable risk of injury to human health or the environment l. Reporting, recordkeeping, handling, testing m. Disposal i. ii. PCBs iii.
Asbestos
iv.
Radon
v.
Pb-based paint n. o. Unreasonable = depend on chemical and its use p. Exclusions vi. vii. Pesticides (FIFRA) viii.
Radionuclides (NRC) ix.
Food, Drugs, Cosmetics (FDA)

4. Enforcement q. Prohibit – can’t make or use chemical r. Limit/Control the production and use s. Citizen suits

5. Balances Benefits and Risks t. Effects on health – exposure x. Health risks: toxicity, birth defects, cancer, mutation xi. Don’t need proof, but need to show linkage btwn exposure and negative effect; study to determine causal relation u. Effects on environment – exposure xii. Environmental Risks: persistence (biodegrade), bioaccumulation, biogeochemical cycling, toxicity, mutation, transformation (to something as bad or worse than parent compound) v. Benefits and possible substitutes w. Economic consequences x. Regulate if direct serious threat y. Test if may be threat (lower threshold) – e.g. if produced or enter environment in substantial quantity to pose significant human exposure

6. Approach a. Premarket Notification (PMN) – like FIFRA but no registration i. Contains 1) Data on health and environmental effects (from chemical company) 2) Uses 3) quantities ii. 90 days prior iii. All new chemicals – not on chemical substances Inventory iv. SNUs - Significant New Uses v. Low risk chemicals and mixtures are exempt

b. Existing Chemicals – Identify and determine if testing needed vi. Interagency Testing Committee (ITC) – review and set priorities 4) Not able to complete task 5) Law suit by NRDC 6) Court set schedule of 3 years 7) By 1986 only had 100 recommended by ITC 8) Meets every 6 months 9) Revises priority testing list annually

6. Inventory Update Rule (IUR) – 2003 and 2005 c. Collecting facility and chemical identity d. Chemical production volume, etc. from manufacturer and importers of certain chemicals listed on chemical substances inventory e. Companies record keeping and reporting and make available to public vii. Test results viii. Quantities ix. By-products f. Increased trigger amount – 10 to 25,000 lbs. of chemical at single site

7.

Examples 4 -- PCB
4 -- PCB

8. PCBs –Statutory (congressional toxicology?) a. Ubiquitous – many applications b. Sorb and bind and don’t move in environment c. Bi phenyl 2 benzene rings bio-accumulate and bio-concentrate d. Fish advisories for PCBs in Potomac e. Transformers contain PCBs – blow up f. Microscope immersion oils g. submarines

9. 5 -- MBTE
5 -- MBTE
Asbestos
h. Found in old buildings i. ban certain types and uses j. mesothelioma

10. Radon k. Assessment and control l. Naturally occurring >> build up in basements

11. MTBE – methyl tertiary-butyl ether m. Gas additive for better combustion (now ethanol to oxygenate and improve combustion) n. Very soluble in GW o. Low Henry’s Law coefficient >> dissolved in water has low volatility p. Does not sorb (bind to) well in aquifer system q. Doesn’t combine w materials in aquifer >> moves, stays in water >> hard to clean up r. Not sure how harmful it is

12. Nano-technology s. Toxic socks with nano-silver for odor control t. Nanoparticles shed and can be inhaled u. Silver most toxic heavy metal to bacteria

13. Perfluoro-octanoic Acid (PFOA) v. Non-stick cookware w. Breathable, all-weather clothing x. Very persistent in environment y. Found at very low levels in env’t and human blood z. Caused developmental and other adverse effects in lab animals {. PFOA enforceable consent agreement (ECA) |. Provisional Health Advisories }. 2005 DuPont paid $10.25 million for violating federal env’l statutes – using new product

i.
RESOURCE CONSERVATION and RECOVERY ACT (RCRA) 1976 +

1. Background a. Origin: Solid Waste Resource Recovery – certain % of waste stream must be recycled b. Now – Hazardous waste control – how to handle risky materials when they become wastes

2. Intent c. Cradle to grave control of hazardous waste d. Solid waste control –BMPs i. No open burning ii. Sanitary landfills

3. Goal e. Protect public health and environment f. Conserve resources and energy

4. Title I – Defines HW g. Four criteria – Generic for unlisted wastes iii. Ignitable iv. Corrosive v. Reactive vi. Toxic (E(xtraction) P(rocedure) toxic, persistent, bioaccumulates) 1) How potent of a poison 2) What kind of exposure would you get h. Listed Process Wastes(P-wastes) – approx. 100 i. Chemical List (K-wastes) – approx. 600- j. Includes vii. Sludges viii. Liquids ix. Solids x. Semisolids xi. Contained gasses k.

4. Title II – Sets standards of Performance, Labeling, Record keeping, for a. Generators i. Records and reports ii. Containers and labeling iii. Info on contents to hauler/treater iv. Manifest system v. Exemptions for <100 kg/mo – GMU is HW generator b. Transporters vi. Manifest 1) New HW manifesting in 2005 to become consistent with DOT vii. Placard system viii. Chain of custody c. TSD = Treatment, Storage and Disposal Facility ix. Permits x. Training xi. Operating standards 2) Process 3) Technical. HW LF = 2x impervious liners, leachate collection system, GW monitoring xii. Financial requirements xiii. Closure standards 4. States generally run their own programs

5. Listing and delisting issues – usually related to process wastes

6. Enforcement d. Compliance orders when found in violation and required to do something e. Law suits f. Civil penalties - $50,000/day/violation g. Criminal penalties – Chatam Co, NC tanker dropping PCBs all over roads xiv. Jail – 5 years for violation of HW provisions xv. $250,000 + 15 years if endanger human life

COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION and LIABILITY ACT (CERCLA) – 1980
SUPERFUND AMENDMENTS and REAUTHORIZATION ACT (SARA) - 1986

1. Intent: clean up & protect human health & the environment from hazardous waste dumps & spills a. HW disposed of in ways that cause risk b. Not necessarily illegal c. 1000’s of abandoned HW sites – cost so high, no one could clean up >> needed federal money

1. Goal d. To clean up previous damage e. To compensate victims f. To assign liability

2. Title I – Define hazardous waste as per RCRA, CWA, CAA, TSCA or as EPA designates

3. Title II – Funding g. $1.6 billion initial funding - Originally environmental tax on petrochemical industry >> Hazardous Substance Response Trust Fund. Went broke. h. SARA - 1986 – $8.5 billion from wider array of taxes, including petro and chem industries i. 1995 – end of tax i. general revenue ii. interest iii. recovery $ j. 2009 - $600 million - American Recovery and Reinvestment Act of 2009 (“Recovery Act”) to help clean up specific sites across nation. To accelerate ongoing cleanup or initiate new construction projects at 51 Superfund sites (“make work”) k. RCRA Post-Closure iv. Operator tax v. Post-closure liability trust fund

4. Notification Requirements l. Any spill >> National Response Center (NRC) m. Site existence n. Nature and volume of waste

5.

6. National Contingency Plan (NCP) a. EPA to develop National Priority List (NPL) – at least one /state, -- based on b. Discover CERCLIS 6/6/11 | Non NPL sites | ~11,500 | Currently on NPL | 1703 | Deleted from NPL | 348 | c. Investigate d. Evaluate e. Remediate i. Remove ii. Immediate (short-term emergency) iii. Planned iv. Long-term remedial action NPL Status as of 6/3/11 | General | Federal | Total | Proposed Sites | 61 | 5 | 66 | Final Sites | 1131 | 158 | 1289 | Deleted Sites | 333 | 15 | 348 | Milestone | General | Federal | Total | Partial Deletions | 40 | 17 | 57* | Construction Completions | 1032 | 69 | 1101 | Sites that have achieved these milestones included in one of the three NPL status categories. * 70 partial deletions have occurred at these 57 sites. |

7. Clean up by (Potentially) Responsible Party (PRP) or EPA f. Liability v. Get PRP to pay for cleanup whenever can vi. Joint and several – all equally liable and liable for everything 1) Innocent landowner issue vii. Strict – doesn’t matter if legal and industry standards viii. Retroactive g. Compensation for clean-up an damaged resources

8. History h. 1982 - Hazard Ranking System (HRS) - principal mechanism for evaluating environmental hazards at site. Numerically-based screening system; uses info from prelim investigations to assess potential threats to human health or the environment. i. 1983 – First NPL j. 1986 – SARA ix. Title III – Emergency Planning and Community Right to Know x. Federal Facilities k. 1988 – Preliminary assessment l. 1989 – Site inspections – EPA required to begin FI/FS m. 1990 xi. Oil Pollution Control Act and Pollution Prevention Act xii. Revises the Hazard Ranking System in accordance with SARA to help ensure the HRS accurately assesses the relative degree of risk to human health and the environment posed by uncontrolled hazardous waste sites that may be placed on the NPL. n. 1992 – xiii. EPA required to begin physical cleanup of 175 sites xiv. Superfund Accelerated Cleanup Model (SACM) to streamline the traditional Superfund response process by providing prompt reduction in risk and an earlier initiation of enforcement and public participation activities. o. 1993 – xv. Construction Completions - to more accurately reflect work. All construction is complete and site is awaiting official deletion from NPL. xvi. Brownfields Initiative - to redevelop abandoned, idle, underused industrial/commercial sites when expansion/redevelopment complicated by real/perceived env’l contamination. p. 1996 - Cumulative Superfund cost recovery settlements > $2 billion. 20%+ secured in 96 alone. q. 1998 - EPA completes its 5,000th emergency removal action. r. 1999 - Superfund Redevelopment Initiative. Coordinated national program providing communities with tools & info needed to turn cleaned up Superfund sites into productive assets (office parks, playing fields, wetlands, and residential areas). s. 2000 - EPA achieves 700th Construction Completion. t. 2002 - CERCLA Amended-Brownfields Law - 1/11/02. Small Business Liability Relief and Brownfields Revitalization. Expanded EPA's Brownfields Program, boost funding for assessment & cleanup of brownfields, enhanced roles for state & tribal response programs, clarified SF liability. Law changed liability landscape by providing important protections from SF liability to landowners who meet certain statutory criteria for landowners who qualify as bona fide prospective purchasers, contiguous property owners, or innocent landowners. u. 2006 - 1,000th Construction Completion Achieved. Remedy has been designed and built that prevents contaminants from spreading through the soil, surface water or ground water. v. 2008 - 40,000th Final Assessment Decision (FAD). Indicates completion of all Superfund remedial assessment work at site; key measure tracked by EPA under Gov’t Performance & Results Act.

ACRONYMS 1969 | NEPA | National Environmental Policy Act | 1974 | SDWA | Safe Drinking Water Act | 1977 | CEQ | Council on Environmental Quality | 1996 | MCL | Maximum Contaminant Levels | 1979 | EIS | Environmental Impact Statement | | MCLG | Maximum Contaminant Level Goals | | FONSI | Finding of No Significant Impact | 1947 | FIFRA | Federal Insecticide, Fungicide & Rodenticide Act | 1970 | CAA | Clean Air Act | 1976 | TSCA | Toxic Substances Control Act | 1977 | NAAQS | National Ambient Air Quality Standards | 1979 | PMN | Premarket Notification | 1990 | NSPS | New Source Performance Standards | 1988 | SNU | Significant New Uses | | NESHAPs | National Emission Standards for Hazardous Air Pollutants | 1996 | ITC | Interagency Testing Committee | | SIPs | State Implementation Plans | 1976 | RCRA | Resource Conservation and Recovery Act | | AT | Air Toxics | 1984 | BMP | Best Management Practices | | MACT | Maximum Available Control Technology | 1986 | TSD(F) | Treatment, Storage and Disposal Facility | 1972 | CWA | Clean Water Act | 1980 | CERCLA | Comprehensive Environmental Response Compensation & Liability Act | 1977 | FWPCA | Federal Water Pollution Control Act (48) | 1990 | SARA | Superfund Amendments and Reauthorization Act | | WQC | Water Quality Criteria | | NRC | National Response Center | | DU | Designated Use | | NCP | National Contingency Plan | | NPDES | National Pollution discharge Elimination System | | NPL | National Priorities List | | POTW | Publically Owned Treatment Works | | (P)RP | (Potentially) Responsible Party | | TMDL | Total Maximum Daily Load | | CERCLIS | CERCL Information System | | BMP | Best Management Practices | | EPCRA | Emergency Planning & Community Right to Know Act | | BAT | Best Available Technology | | HRS | Hazard Ranking System | | BPT | Best Practicable Technology | | FAD | Final Assessment Decision | | BCT | Best Conventional Technology | | | | | NSPS | New Source Performance Standards | | | | | CSO | Combined Sewer Overflow | | | | | NPS | Nonpoint Source | | | |