CHAPTER 2 THE REGULATORY PROCESS

Transcription

1 CHAPTER 2 THE REGULATORY PROCESS Supplemental Questions: In the opening quote, who is Mr. Bumble, and why is he upset with the law? Mr. Bumble is a character in Oliver Twist, the workhouse master to whom Oliver appealed for more gruel: "please sir, I want some more." The quote is from the end of the book, wherein Mr. Bronlow, Oliver's benefactor, informs Mr. Bumble that "... the law supposes that your wife acts under your direction. `If the law suppose that,' said Mr. Bumble, `the law is a ass -a idiot"' What are the three branches of government in the United States? 1. The Legislative Branch (U.S. House and Senate) which passes laws; 2. The Executive Branch (The President and all federal departments and agencies) which carry out the day to day running of the country; and 3. The Judicial Branch (The Supreme Court and other Federal Courts) who interpret laws. [Note to instructors: do not work under the illusion that all of your students know this!] What alternative title has been given to the 1980 CERCLA (Superfund) law? The Lawyers Retirement Act of 1980 or The Hydrogeologists Full-Employment Act. Note that due to the nature of the some of the topics presented as homework problems, there may be more than one "right" answer. Some solutions have not been included due to the nature of the question Contrast the definition of hazardous waste included in RCRA law (Sec. 2-2) with that included in EPA regulations (Sec. 2-3). What are the differences, and why is there any difference at all? The basic answer to this question has to do with the different roles of legislative bodies and regulatory agencies. Legislative bodies, such as the U. S. Congress, are elected by the people to enact laws. They generally are able to set broad policy goals, but historically have left the details of implementing the laws through regulations issued by agencies of the executive branch, which generally have more detailed technical expertise. In the U. S., the Environmental Protection Agency (EPA), is the Federal agency charged with promulgating environmental regulations and enforcing environmental laws. Congress, in the Resource Conservation and Recovery Act, defined hazardous waste in a general form as any waste which produces an increase in mortality or illness or poses a threat when improperly managed. Subsequently, EPA promulgated regulations providing specific listing of wastes which are hazardous, and detailed testing characteristics for determining if a waste should be classified as a hazardous waste. 2-2 Contact your congressional representative or U.S. senator and obtain a copy of one federal hazardous waste bill currently being considered. Prepare a brief synopsis of the bill, indicating your opinion as to whether it should be passed. Note to instructors: Legislative staff at the Federal and state level can provide a computer print out of proposed legislation dealing with "hazardous waste". Proposed Federal laws may also be found on the Page 1 of 14

2 World Wide Web (Internet) at: It may be appropriate for the instructor to review this and ask students to write their legislator for a specific law. One of the objectives in this assignment is to introduce students to the legislative system. 2-3 Contact your local state legislator and obtain a copy of one hazardous waste bill currently being considered in your state. Prepare a brief synopsis of the bill, indicating your opinion as to whether it should be passed. 2-4 Review recent copies of the Federal register in the library and select a recently promulgated hazardous waste regulation for review. Prepare a brief synopsis of the regulation. Pay particular attention to the preamble and summarize the EPA s estimate of the impact of the regulation. 2-5 Repeat Problem 2-4 for a recent regulation promulgated in your state. 2-6 Provide a synopsis of a recent court decisions involving hazardous waste, based on review of a case in Environmental Reporter Cases What is the National Contingency Plan? Where would you obtain a copy of the Plan? The National Contingency Plan (NCP) is the blueprint for implementing Superfund. It was created by the EPA and provides a framework for the process and specified criteria for which sites are eligible for financial backing from Superfund. The EPA has published a revision of the plan in the Federal Register on March 8,1990 [55 FR 8666]. A copy should be available in the government documents section of your library Explain what is meant by the term Applicable or Relevant and Appropriate Requirements (ARARs). Applicable or Relevant Appropriate Requirements (ARARs) are regulations which come from environmental regulatory programs other than Superfund that may be applied to remedial activities at Superfund sites. The EPA has the authority to decide that a requirement is relevant and appropriate to a given situation. [See p. 58] 2-9. Explain the different types of Applicable or Relevant and Appropriate Requirements (ARARs). Provide an example for each. There are three types of ARARs: (a) Chemical specific -- e.g. PCB level in soil must be less than 50 mg/kg. (b) Action specific -- e.g. If a landfill were to be proposed, it must meet RCRA landfill design requirements. (c) Location specific -- e.g. The restriction of land disposal in a wetlands area Provide an example of how each of the six defenses to an action for negligence cited in Sec. 2-1 might arise. The definitions of each of the six defenses are from p. 38. Specific examples will vary among students. Note these defenses are not mutually exclusive and there is considerable overlap. Page 2 of 14

3 (a) Contributory negligence - the injured plaintiff was partially responsible for his/her injury and, therefore, should not benefit because he/she contributed to causing his/her injury. [See solution to problem 2-15f] (b) Comparative negligence - Where both parties bear some responsibility for the plaintiffs injury, there is an apportionment of responsibility between both the plaintiff and the defendant. [See solution to problem 2-15g] (c) Assumption of risk - A person who knowingly assumes a risk may not be permitted to recover damages if injured as a result of such risk. e.g. An individual who enters a burning building to rescue an occupant and is injured during the rescue cannot recover from the manufacturer of the faulty furnace which caused the fire. Failure to take precaution against injury - If an employee has the option to protect himself/herself from injury, yet does not choose to do so, this may reduce the ability of the injured employee to recover for negligence. e.g. A worker failing to wear safety equipment that has been provided. (e) Statute of limitations - A law specifying that a claim for negligence must be filed in a specified time period. [See solution to problem 2-15i] (f) Immunity - Under the concept of sovereign immunity, tort suits against the U.S. government have been barred for most of history. The Federal Tort Claims Act now permits limited suits against the U.S. government for damages caused by federal actions One of the three ways for a solid waste to be classified as a hazardous waste is for a company to declare the waste hazardous. Because this will dramatically increase the cost of transportation and disposal, what is the incentive for industries to make such a declaration? If the company knows the waste is hazardous, one incentive for the company to declare its hazardous waste is that the company will save money by avoiding the cost of chemical analyses. For example, if a single drum of organic waste needs to be analyzed to determine if it passes the TCLP test (see pp ), the cost of analysis might exceed the cost of disposal as a hazardous waste. Another reason has to do with reducing future liabilities. By treating a waste as if it were hazardous, and sending it to a hazardous waste disposal facility where it will be destroyed, rather than a municipal landfill where it will be buried, future liabilities for the waste may be reduced Using the Federal Register -- Cumulative List of CFR Sections Affected in the library, determine the most recent changes in regulations for: (a) Generators (40 CFR 262) (b) Determining which wastes are hazardous (40 CFR 261) (c) Landfills (40 CFR ) (a) As of 3/20/01, the most recent changes for Generators (40 CFR 262) were found on April 8, 2000 in section Accumulation Time. (b) As of 3/20/01, the most recent changes for Determining which wastes are hazardous were found on July 10, 2000 in section Comparable/Syngas Fuel Exclusion. (c) As of 3/20/01, the most recent changes for Landfills (40 CFR ) were found on July 11, 1995 in section Special Requirements for Bulk and Containerized Liquids Determine what federal regulations would apply to (a) Insurance for hazardous waste landfills Page 3 of 14

4 (b) Disposal of batteries in landfills (c) Design and operation of land disposal facilities (d) Export of wastes containing PCB s (e) Disposal of PCB s in landfills (f) A list of extremely hazardous substances (a) The following Federal regulations can be found in 40 CFR & (e), Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities Liability Requirements: (b) Section ,.230,.282,.313, Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities & ,.230,.282,.313 Interim Status Standards For Owners and Operators of Hazardous Waste, Treatment, Storage and Disposal Facilities, of Title 40 apply to Special requirements for incompatible waste. Further inspection of Appendix A of the same section lists alkaline corrosive battery fluid, and battery acid as incompatible wastes because they can produce harmful effects which are harmful to human health and the environment when mixed with other wastes. (c) Section , Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, and Section , Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, of Title 40 apply to the design and operation of land disposal facilities. In these sections, requirements are set regarding construction, contingency plan, closure, financial assurance, air emissions, leakage rates, monitoring, etc. (d) Section of Title 40 places specific requirements on the Export for disposal of Polychlorinated Biphenyls (PCB s). (e) Section and of Title 40 specifically deal with Polychlorinated Biphenyls Prohibition. They include disposal, remediation waste, and PCB bulk product waste requirements and chemical waste landfill restrictions. (f) Section of Title 40 is titled Identification and Listing of Hazardous Waste. This section deals with the definition of hazardous waste, exclusions, PCB regulated wastes, criteria of identifying the characteristics of hazardous waste and listing hazardous waste, as well as the characteristics of ignitability, corrosivity, reactivity and toxicity Define the following legal terms (use a law dictionary) and indicate their relevance to hazardous waste management: (a) Res ispa loquitur (b) Strict Liability (c) Joint and several liability (d) Sovereign immunity (e) Negligence (f) Contributory negligence (g) Comparative negligence (h) Ex post facto law (i) Statute of limitations Page 4 of 14

5 (a) "The thing speaks for itself'; this permits the jury to infer both negligent conduct and causation. e.g. Soil contaminated with arsenic is located directly below an abandoned plastic manufacturing plant which uses large quantities of arsenic. The responsible party is obvious. (b) A concept applied by the courts in product liability cases in which a seller is liable for any and all defective or hazardous products which unduly threaten a consumers personal safety even if the seller employed the most rigorous standard to prevent harm or injury to the consumer, liability regardless of fault. e.g. The generator of toxic waste is strictly liable for remediation costs under Superfund, even if there is no negligence in the selection of the disposal site. (c) Liability in which all liable parties are each 100% liable for the harm or injury regardless of their individual contribution to the harm or injury e.g. A residential water supply has been contaminated by a local landfill which received wastes from many companies. The group of companies are potentially responsible parties (PRPs). The PRPs must resolve among themselves what proportion of the total cost each must bear. Under Superfund, the PRPs are each 100% liable for the cleanup of the water supply. (d) This doctrine precludes a plaintiff from suing the government (sovereign), unless the government consents to be sued. e.g. Tort actions against the U. S. federal government are permitted only under the conditions specified in the Federal Tort Claims Act. (e) The omission to do something which a reasonable and prudent person, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent person would not do to prevent harm or injury to another. e.g. Careless disposal from a waste producing industry. (f) The act or omission amounting to want of ordinary care on part of complaining party, which, concurring with defendant's negligence, is proximate cause of injury. The defense of contributory negligence is an absolute bar to any recovery in some states; because of this, it has been replaced by the doctrine of comparative negligence in many other states.e.g. A worker at a remediation site fails to wear a respirator, even though she has been instructed to do so. She perceives that she has been injured by breathing toxic fumes. A court might decide that she cannot recover damages because she contributed to the injury. (g) Under comparative negligence statutes or doctrines, negligence is measured in terms of percentage, and any damages allowed shall.be diminished in proportion to amount of negligence attributable to the person for whose injury; damage, or death recovery is sought. e.g. Under the example in f, the court may decide that both the site safety engineer and worker are equally liable and award the worker fifty percent of the damages. (h) A law passed after the occurrence of a proscribed activity, which declares the activity illegal. Ex post facto laws are specifically prohibited under Article I 10 of the U. S. Constitution. (i) Statutes establishing limitations to the right of action on certain described causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued.e.g. Many states have statutes of limitations on suits against engineers for design errors. Under these provisions, a suit must be brought within a specified period of time (e.g. 4 years) from the time alleged negligence was discovered Review the article Summary and Analysis of the Hazardous and Solid Waste Amendments of 1984 by Beveridge and Diamond (Ref. 10) and prepare a one page summary of the changes in the 1984 HSWA law that affect land disposal. Page 5 of 14

6 Summary and Analysis of the Hazardous and Solid Waste Amendments of 1984, by Beveridge and Diamond summarized amendments to the Resource Conservation and Recover Act (RCRA) enacted in A critical part of the amendments was the definition of the term land disposal, which means to include (without limitation) any placement of such hazardous wastes in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt some, formation, salt bed formation or underground mine or cave. Regulations were enacted, in particular, that bulk liquid hazardous waste and non-containerized hazardous waste was no longer allowed to be placed in salt dome formations or salt bed formations, underground mines or caves. These standards may be amended if the EPA determines that the placement of the waste is protective of human health and the environment, through means of a RCRA permit. Likewise, liquid hazardous waste was prohibited in landfills unless the owner demonstrated that the only viable alternative is to place the waste in a non-permitted landfill and that the liquids will not pose a threat to underground drinking water sources. Dioxin-containing hazardous wastes were also prohibited in landfills, with the exception of underground injection. With this amendment also came a modification that the EPA must determine if the disposal of dioxins and solvents into deep injection wells is protective of human health and the environment. Generators of hazardous wastes are only allowed to place waste in a landfill if they can prove that they have investigated alternative treatment of the waste and that landfill is the only practicable alternative and the landfill meets the minimum the technological requirements for new facilities. Among the minimum requirements for new landfills and extension of existing landfills, and surface impoundments, are the double liner requirement and the leachate collection system. All landfills must have two or more liners and a leakage collection system about and between such liners unless an alternative design will prevent ground and surface water contamination as effectively. Another new requirement is ground water monitoring of a facility regardless of the location of the water table, the number and condition of liners or leachate collection systems installed. Regarding the logistics of the landfill business, each permit for a facility must be reviewed five years after issuance and modified to comply with current RCRA requirements. However, the EPA reserves the right to review a permit at any time during its term. These permits and any other information regarding a facilities treatment, storage or disposal of hazardous waste obtained by the respective state must be made available to the public. One of the shortest, but most important sections of this article is Section 702 Extending the Useful Life of Sanitary Landfills, which directs the EPA to conduct studies on methods to extend the useful life of landfills in order to make better use of both operating and closed landfills Suggest reasons why (or why not) each of the following might be considered hazardous under EPA regulations: a) A railroad tank car of fuming sulfuric acid b) Solvents, after use as a cleaning agent c) Radioactive tracers after use in a university lab d) Mercury e) Soil that has had gasoline spilled on it (a) 49 CFR List of Hazardous Substances and Reportable Quantities identifies sulfuric acid as a hazardous waste due to its low ph. Page 6 of 14

7 (b) 40 CFR Definition of hazardous wastes specifically list organic spent solvents as hazardous waste. (c) 49 CFR List of Hazardous Substances and Reportable Quantities Table 2 to Appendix A- Radionuclides lists many radioactive substances used for tracer studies as hazardous waste. (d) 49 CFR List of Hazardous Substances and Reportable Quantities identifies mercury as a hazardous waste. (e) 49 CFR List of Hazardous Substances and Reportable Quantities lists benzene and toluene as hazardous wastes. These are two of the constituents found in gasoline, therefore, soil with gasoline spilled on it would be considered hazardous waste, ( ) 2-18 Review Section 3004(d) of RCRA (42 USC 6924), and prepare a brief synopsis summarizing your understanding of which wastes Congress intended to preclude from land disposal. Section d deals with Prohibitions on land disposal of specified wastes. These wastes include Liquid Hazardous wastes meeting one or more of the following criteria: 1) Free liquids associated with any solid or sludge containing free cyanides with concentration greater than or equal to 1,000 mg/l 2) Free liquids associated with any solid or sludge containing, Arsenic in concentrations greater than 500 mg/l Cadmium in concentrations greater than 100 mg/l Chromium in concentrations greater than 500 mg/l Lead in concentrations greater than 500 mg/l Mercury in concentrations greater than 20 mg/l Nickel in concentrations greater than 124 mg/l Selenium in concentrations greater than 100 mg/l Thallium in concentrations greater than 130 mg/l PCB s in concentrations greater than 50 ppm Or any compound of these substances. 3) Liquids with a ph less than or equal to 2 4) Hazardous wastes containing halogenated organic compounds in total concentration greater that or equal to 1,000 mg/kg (www4.law.cornell.edu) Review OSHA regulations [29 CFR (b)-(p)], and determine what health and safety considerations are required at Superfund sites. (b) Safety and Health Program. A written safety and health program for the employees involved in hazardous operations is required. The program shall be designed to identify, evaluate, and control safety and health hazards, and provide for emergency response for hazardous waste operations. (c) Site Characterization and Analysis. Identify specific site hazards and to determine the appropriate safety and health control procedures needed to protect the employees from the identified hazards. Page 7 of 14

8 (d) Site Control. Appropriate site control procedures shall be implemented to control employees exposure to hazardous substances before clean-up work begins. (e) Training. All employees working on site exposed to hazardous substances, health hazards, and safety hazards, and their supervisors and management responsible for the site shall receive training meeting the requirements of this paragraph before they are permitted to engage in hazardous waste operations that could expose them to hazardous substances, safety, or health hazards, and they shall receive review training as specified in this paragraph. (f) Medical Surveillance. Employees engaged in operations specified shall institute a medical surveillance program in accordance with this paragraph. (g) Engineering Controls, Work Practices, and Personal Protective Equipment for Employee Protection. Engineering controls, work practices, personal protective equipment, or a combination of these shall be implemented in accordance with this paragraph to protect employees from exposure to hazardous substances and safety and health hazards. (h) Monitoring. Monitoring shall be performed in accordance with this paragraph where there may be a question of employee exposure to hazardous concentrations of hazardous substances in order to assure proper selection of engineering controls, work practices, and personal protective equipment so that employees are not exposed to levels which exceed permissible exposure limited, or published exposure levels if there are no permissible exposure limits, for hazardous substances. (i) Informational Programs. Employers shall develop and implement a program, which is part of the employers safety and health program required in paragraph (b) of this section, to inform employees, contractors, and subcontractors actually engaged in hazardous waste operations of the nature, level, and degree of exposure likely as a result of participation in such hazardous waste operations. Employees, contractors, and subcontractors working outside of the operations part of a site are not covered in this standard. (j) Handling Drums and Containers. Hazardous substances and contaminated soils, liquids, and other residues shall be handled, transported, labeled, and disposed of in accordance with this paragraph. (k) Decontamination. Procedures for all phases of decontamination shall be developed and implemented in accordance with this paragraph. (1) Emergency Response by Employees at Uncontrolled Hazardous Waste Sites. An emergency response plan shall be developed and implemented by all employees within the scope of paragraphs (a)(1)(i)-(ii) of this section to handle anticipated emergencies prior to the commencement of hazardous waste operations. The plan shall be in writing and available for inspection and copying by employees, their representatives, OSHA personnel and other governmental agencies with relevant responsibilities. (m) Illumination. Areas accessible to employees shall be lighted to not less than the minimum illumination intensities listed in the following Table H while any work is in progress: (n) Sanitation at Temporary Workplaces. This section provides for sanitation and clear labeling of the following: potable water, nonpotable water, toilet facilities, food handling, temporary sleeping quarters, washing facilities, and showers and change rooms. (o) New Technology programs. The employer shall develop and implement procedures for the introduction of effective new technologies and equipment developed for the improved protection of employees wrong with hazardous waste clean-up operations, and the same shall be implemented as part of the site safety and health program to assure that employee protection is being maintained. Page 8 of 14

9 (p) Certain Operations Conducted Under the Resource Conservation and Recovery Act of 1976 (RCRA). Employers conducting operations at treatment, storage, and disposal (TSD) facilities specified in paragraph (a)(1)(iv) of this section shall provide and-implement the programs specified in this paragraph. See the "Notes and Exceptions" to paragraph (a)(2)(iii) of this section for employers not covered Write a one page summary of Section 112 of the Clean Air Act. Answers will vary, however, an acceptable summary is as follows: Section 112 of the Clean Air act focuses on regulations for Hazardous air pollutants. The first part of the section consists of a list of hazardous air pollutants established by Congress, including such chemicals as Asbestos, Benzene, Phosphorus, Styrene, etc. It also provides the Administrator with the power to review the list and add pollutants which present a threat to human health. Any regulations set forth through this act are effective upon issue. With respect to changing the list, any person may petition, anytime after six months of enactment, to have the list modified. The Administrator is then responsible to provide a written explanation of the reasons the Administrators decision within 18 months. A contaminant may be removed only if the substance may not reasonably be anticipated to cause any adverse effects to human health or the environment. This threat may be evaluated by standard testing procedures as directed by the Administrator. Due to the process of amending the hazardous pollutant list, the Administrator must revise or list of all categories and subcategories of major sources and area sources of air pollutants at least every eight years. These standards must be met by new and existing sources through measures such as; 1) reducing the volume of or eliminating emissions of pollutants through processes changes, substitution of materials or other modifications, 2) Enclosing systems or processes to eliminate emissions, 3) Collecting, capturing or treating such pollutants when released for a process, stack, storage or fugitive emissions point, etc. With these measures, the maximum degree of emissions for new sources in a category or subcategory must be as stringent or more stringent than the emission control that is achieved in practice by the best controlled similar source. Also, no modification may be made to a major pollutant source unless the State or Administrator determines that the emission limitation for the existing sources will be met. None of these standards may be used to replace requirements of a more strict emission limitation or requirement as issued under another Federal, State or Local law. However, the standards may be waived for a brief period of time, not to exceed two years, by either the Administrator or the President. Clearly, Section 112 is a vital part of the Clean Air Act as it regulates hazardous waste through air pollution regulation In the paragraphs discussing negligence (Sec. 2-1, Common Law and Liability), the concept of a "reasonable prudent person" is mentioned. Are there any instances in which a court might determine a person to be exempt from this standard and therefore not negligent, even if a supposedly negligent event occurred? There are many instances in which a court might determine a person to be exempt from the standard of a "reasonable prudent person" and therefore not negligent even if an apparently negligent event occurred. Some of these instances include the following: physical sickness, mental or emotional illness. On the other hand, people with technical training may be held to a higher standard: A professional engineer is required to exercise that degree of care and skill for the prevention of harm or injury to others ordinarily exercised by other members of his/her profession performing the same service; i.e. a professional is held up to the standard exercised by other professionals rather than that of a reasonable prudent nonprofessional person. Page 9 of 14

10 2-22. In the discussion on negligence the following statement is made: "Where negligence can be established, it is no defense that the negligent action was in full compliance with all government regulations and permit conditions." Explain why this defense may not be valid. This defense is not valid because, due to the large number of factors involved in the hazardous waste field, it is not possible to have a government regulation for every factor. Simply because there is not a specific law against acting in a careless manner, such action is not necessarily acceptable. Ordinarily people are expected to behave according to the standard of a "reasonable prudent person" and professionals to the professional standard of care for the prevention of harm to others Suppose that you are an OSHA inspector sent to inspect an industry located in an extremely impoverished area. The industry also employs a large number of local people. In your inspection of the plant, you find a violation of OSHA regulations that could be potentially dangerous to the employees. You are told by the plant manager that correcting the flaw would require the plant to be shut down for several months. This would result in almost all of the company's employees being out of work. What factors should be considered in your response to this information. An OSHA inspector would be legally required to report the violation. OSHA management, as with any regulatory agency, has considerable discretion in regard to how best to remedy a violation. In response to the information given, certain factors should be considered to arrive at a conclusion to the plant's violations of OSHA regulations. These factors include: Assess the relative danger to the employees of the violation. Work with plant management to ascertain what mitigation measures could be taken (e.g. new safety equipment or special training) that could reduce the risks to employees while major corrections are planned and executed. Reach a decision as to the danger involved and discuss alternatives to shutting down the entire plant. For example, close down one part of the plant at a time so as to decrease the number of people out of work Under the subsection entitled Generators and Transporters, in Section 2-3, the regulatory requirement is discussed: Generators producing less than 100 kilograms per month are exempt form most RCRA regulations but still required to meet minimum standards. Do you agree with this exemption? Why or why not? This is an opinion question and there is no single correct answer to this question Explain why the statement "CERCLA specifically applies this liability to wastes produced prior to the enactment of CERCLA" does not violate the Constitutional prohibition against ex post facto laws? CERCLA is not an ex post facto law because, as noted in the case of United States v. Mosanto Co., the statute does not exact punishment. The court explained that CERCLA instead "creates a reimbursement obligation on any person judicially determined responsible for costs of remedying hazardous conditions at a waste facility." The court stated that the payment of cleanup costs was not intended to, and as a factual matter did not, operate as a criminal penalty or a punitive deterrent. [Note: this information is not in the textbook] Page 10 of 14

11 2-26 Obtain a manifest form for hazardous waste from your own state regulatory ageny. Fill it out for a waste from a local industry. [See Figure 2.5] Explain how the principle of joint and several liability would apply to potentially responsible parties (PRPs) at a Superfund site. The principle of joint and several liability applies to potentially responsible parties (PRPs) at a Superfund site in that each and every PRP that contributed to the contamination may be held responsible for the entire cost of cleanup. Often only a few of the many PRPs at a site can be found, (e.g. some are corporations that went out of existence years ago) What is the Federal Administrative Procedures Act? The Federal Administrative Procedures Act governs practices and proceedings before agencies of the Unites States Government Explain what is meant by "citizen suits." A citizen suit is a suit brought by any private citizen against another person for violations of any governmental permit, regulation, standard, requirement, or order. Congress has specifically permitted citizen suits against both the United States Government as well as individuals and corporations for failure to perform any duty under several federal environmental laws through 2-35 [Note: these questions involve library work and there is not a single correct answer] Review the article by K. E. Aaron and A. J. Slap. Explain how CERCLA may be in conflict with federal bankruptcy laws. The bankruptcy laws state that prior to filing a Chapter 11 petition, the corporate debtor is liable for all of its actions. Thus, it is subject to total enforcement powers by the government for response costs, civil and criminal penalties, and cleanup orders. After the filing of the petition, the corporate debtor can, through a reorganization plan, be released from liability from these debts and obligations. Obligations and liabilities incurred by the corporate debtor after filing the petition, but before the date of confirmation for the plan of reorganization are called "administrative priority expenses. If not paid during the course of business in this time period, these are paid in full by the reorganization plan. A Bar Date Order establishes a date by which all creditors must file their proofs of claims or else be denied treatment in the reorganization plan and forever be denied from enforcing their claim. The decision by the courts found that the environmental agencies still had to comply with these time constraints. However, in actuality the ruling allows the Agencies to sue the reorganized corporation for response costs, and it is the reorganized debtor that would have to prove that the release took place pre-petition. This could be very difficult to do. Also, the court ruled that in addition to being able to force corporations to repay the cost of cleanups, governmental agencies can obtain injunctive relief under a variety of environmental laws to compel the cleanup of a prepetition release. The court also deemed that if the debtor still owned or controlled the site and the environmental statutes did not provide for optional payment in lieu of compulsion, then the equitable remedy was not a pre-petition claim and could not be discharged. Also, post-petition/pre-confirmation payments for cleanup costs and response costs were entitled to the status of an administrative priority expense. Page 11 of 14

12 2-32. Review the article by J. Bartels, et al. 48 How does the European system differ from the manifest system n the United States? Answers will vary Review the article by M. E. Doyle and C. Sweet. Identify the various methods used in different states to establish cleanup -goals. Eight states, located in the U.S. EPA Region 4 have established different soil cleanup levels, using various rationales, for petroleum release sites. The eight states are Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Alabama -- In Alabama cleanup levels are only used for underground storage tank sites. For the rest of the sites, cleanup is determined on a case-by-case basis. Factors evaluated are background concentrations, surrounding site conditions, and applicable or relevant and appropriate requirements (ARARs). The goal of the state is to develop a reasonable program using specific circumstances and potential risks for each site. Florida -- In Florida field screening techniques are used as a major determining factor in cleanup levels. State regulations are supplemented by more stringent criteria in different counties of Florida due to local aquifer protection plans. Georgia -- The main factor used to determine cleanup goals in Georgia is distance from well supplies. Kentucky -- Cleanup standards for Kentucky are to background levels. This means that a site needs to be cleaned up to nondetectable levels. The actual constituents monitored depend on the material spilled. Kentucky requires sampling of soil, groundwater, surface water and sediment potentially affected by contaminant migration from the site. Mississippi -- For the state of Mississippi there are no documents to explain the technical basis for the criteria of groundwater prevention cleanup. Instead, groundwater cleanup goals ale the same as soil cleanup goals that are based on preventing migration into groundwater. Land use is also considered for cleanup goals and can raise the cleanup standards. Carolina -- State guidelines state "...soil remediation shall be conducted in order to eliminate potential threats to human health and/or welfare resulting from exposure to contaminated materials and prevent further environmental degradation resulting from leaching of contaminants into the groundwater." For each site a sensitivity analysis is performed. This analysis is based on soil ph, grain size, contaminant class, distance from seasonal high water table and bedrock, presence of a confining layer, time since the release occurred, presence of sedimentary structures and textures and presence of artificial conduits within the zone of contamination. Site-specific conditions and risk assessment are also considered. South Carolina -- Cleanup levels in South Carolina are not legal regulations but rather guidelines. The criteria used were developed by other states in the southeast. Site cleanup standards also take into consideration other factors, such as groundwater use in the area, depth to the water table, and soil conditions. Tennessee -- The main criteria for cleanup levels in Tennessee are proximity to drinking water or nondrinking water and the permeability of the soil in the vicinity of the site. These criteria can be modified based on other site-specific data Explain what is meant by "cradle-to-grave" control for hazardous waste. Page 12 of 14

13 "Cradle-to grave" responsibility for hazardous waste pertains to the potential liability. If the hazardous waste is contracted to a third party and is not disposed of properly, the original generator will remain liable for any damage or clean up costs. It should be noted, however, that if the third party (e.g. a transporter or treatment facility) is a viable corporate entity, the generator could, in turn, sue them to recover costs. [See also solution to problem 1-11] Review the article by J. Nikmanesh, et al. 52 Explain what is meant by a de minimis PRP. A de minimis Potentially Responsible Party is a party that is only responsible for a minor portion of the response costs at a hazardous waste site. An example of a de minimis party would be a landowner who did not contribute to the waste at a site nor have knowledge of or permit the hazardous release. The EPA can enter into a settlement with de minimis parties and release them from liability in connection with the site Review the article by D.C. Wilson and W.S. Forester, 53 noting the differences between European a Answers will vary Explain why the American definition of hazardous waste (and the chemical tests derived from that definition) would not be appropriate in Great Britain The American definition was established under RCRA, in part, to identify wastes that should not be placed in municipal landfills. The specific testing (EPTOX & TCLP), were established to simulate conditions in a sanitary landfill, to determine if the waste would create toxic leachate. Present policy in Great Britain is to encourage the co-disposal of organic hazardous waste with municipal waste under controlled conditions that present minimal threats to public health Contact your state environmental agency and find out what steps are required to obtain a permit for a hazardous waste land disposal facility. [Note: there is not a single correct answer to these problems] Explain the Hazard Ranking System. What is the lowest score a site can have and be included on the NPL? The Hazard Ranking System is a method to estimate the degree of risk each suspect site poses to human health and the environment. The lowest score a site may have and still be included on the National Priority List (NPL) is a Find out from your state s regulatory agency where the nearest Superfund site is located and ascertain the status of cleanup. Answers will vary, however, searchable information about location and clean-up efforts is available at the Environmental Protection Agency's Superfund Website ( The following is a list of potential hazardous waste generators. Explain the possible hazardous wastes generated from each and how each waste is classified as hazardous. (a) Dry cleaners (b) Automobile service stations (c) "Do-it-yourself" garage mechanics stations Page 13 of 14

14 (d) Users of household pesticides (RAID, etc.) (e) Metal finishers (e.g., ball bearing manufacturer (f) Hospitals (g) Doctors' offices (a) Perchlorethylene (dry cleaning fluid) is extremely toxic (b) Used oil may be toxic, used batteries contain lead, a toxic metal (c) Used oil may be toxic, used batteries contain lead, a toxic metal (d) These materials are generally very toxic (e) Toxicity due to solvents and heavy metals (f) While the common term "hospital wastes" generally denotes infectious wastes that are by definition not hazardous wastes and regulated under a separate program, hospitals utilize solvents and toxic materials that are hazardous wastes when no longer useful. Additionally, laboratories produce hazardous wastes. (g) Same answer as f. Page 14 of 14