Federal and State Environmental Relations Wikipedia Article

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Nov 9, 2013 (3 years and 8 months ago)

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Federal and State Environmental
Relations Wikipedia Article

By: Karin Dunne, Sean
Giambattista

and Andrew Cheung

Generally:

Environmental regulation is done piecemeal, by
type of pollution.

States have concurrent authority to impose state
laws that meet or exceed federal standards.


Federal environmental laws often require or grant
regulatory authority to states.

State enforcement agencies work with Federal
regulators to create and enforce these rules.

State and Federal regulators often disagree over
the rules or their interpretation

Outline


Water pollution


Clean Water Act


Safe Drinking Act


Coastal Zone Management Act


Air Pollution


Clean Air Act


New Source Review


Climate Change Cases


Solid Waste Pollution


Resource Conservation & Recovery Act (RCRA)


Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)


Other Issues


Endangered Species Act


Emergency Planning and Community Right
-
to
-
Know Act


Federal Insecticide, Fungicide, and Rodenticide Act


Questions of Enforcement


Notes


Bibliography

Water Pollution

Water Pollution


Clean Water Act of 1972


Establishes basic structure for regulating discharges of
pollutants into waters and regulating quality standards for
surface waters


Predecessor: Federal Water Pollution Control Act of 1948


Reorganized and expanded in 1972





Water Pollution (continued)


Clean Water Act of 1972 Cases


Controversy over “significant nexus” to “navigable waters”


S. D. Warren Co. v. Maine Board of Environmental Protection


Ruled that hydroelectric dams were subject to Act


United States v. Riverside
Bayview


Established that intrastate wetlands are regulated under Act


Water Pollution (continued)


Safe Drinking Water Act of 1974


Ensures safe drinking water for
public


EPA sets standards and oversees states, localities and water
suppliers


Originally passed in 1974 and was amended in 1986 and 1996


Protects drinking water and sources


Rivers, lakes, reservoirs, springs and ground water wells


Does not apply to bottled water (FDA)


Water Pollution (continued)


Coastal Zone Management Act of
1972


Administered by NOAA’s Office of Ocean and Coastal
Resource Management


Requires states to develop State Coastal Zone Management
Plan or program


Federal actions in coastal areas must comply with state plans


Provides grants to be used in maintenance


Balances economic development with environmental
conservation


Two national programs


National Coastal Zone Management Program


National Estuarine Research Reserve System



Clean Air Act

The CAA requires the EPA to set national ambient air
quality
standards.

Primary
responsibility for attainment and maintenance of
these standards rests with state and local
agencies.

These agencies are authorized to achieve these standards
through state
-
specific permitting and enforcement
programs.

Clean Air Act

New Source Review is a permitting process
requiring
EPA
review for environmental controls prior to construction
of any "new pollution source
."

Clean Air Act


New Source Review

Nonattainment Areas


states must establish plans and
make reasonable progress towards attainment as
“expeditiously as possible”

Prevention of Significant Deterioration


new sources can
never reduce ambient air quality below federal ambient
air quality standards


Clean Air Act


New Source Review


States have disagreed with EPA over national
standards


EPA authority to change and revise rules has been
upheld


EPA has disagreed with
state permitting
decisions


EPA has established authority to countermand state permitting
decisions

Clean Air Act Continued

States have
brought
suit
against the EPA for failing to
regulate carbon
emissions

In Mass. v. EPA states
succeeded in compelling EPA to
promulgate rules to regulate C02 emissions under the
clean air act

Climate Change

Solid Waste
Pollution

§

261.2

Definition of solid waste.

(a)(1) A
solid waste
is any discarded material that is not excluded under
§
261.4(a) or that is not excluded by a variance granted under
§§
260.30 and 260.31 or that is not excluded by a non
-
waste determination under
§§
260.30 and 260.34.

(2)(i) A
discarded material
is any material which is:

(A) Abandoned, as explained in paragraph (b) of this section; or

(B) Recycled, as explained in paragraph (c) of this section; or

(C) Considered inherently waste
-
like, as explained in paragraph (d) of this section; or

(D) A military
munition

identified as a solid waste in
§
266.202.

(ii) A hazardous secondary material is not discarded if it is generated and reclaimed under the control of the generator as d
efi
ned in
§
260.10, it is not speculatively accumulated as defined in
§
261.1(c)(8), it is handled only in non
-
land
-
based units and is contained in such
units, it is generated and reclaimed within the United States and its territories, it is not otherwise subject to material
-
speci
fic management
conditions under
§
261.4(a) when reclaimed, it is not a spent lead acid battery (see
§
266.80 and
§
273.2), it does not meet the listing
description for K171 or K172 in
§
261.32, and the reclamation of the material is legitimate, as specified under
§
260.43. (See also the
notification requirements of
§
260.42). (For hazardous secondary materials managed in land
-
based units, see
§
261.4(a)(23)).

(b) Materials are solid waste if they are
abandoned
by being:

(1) Disposed of; or

(2) Burned or incinerated; or

(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or
inc
inerated.

(c) Materials are solid wastes if they are
recycled

or accumulated, stored, or treated before recycling

as specified in paragraphs (c)(1)
through (4) of this section.

(1)
Used in a manner constituting disposal.
(i) Materials noted with a “*” in Column 1 of Table 1 are solid wastes when they are:

(A) Applied to or placed on the land in a manner that constitutes disposal; or

(B) Used to produce products that are applied to or placed on the land or are otherwise contained in products that are applie
d t
o or
placed on the land (in which cases the product itself remains a solid waste).

(ii) However, commercial chemical products listed in
§
261.33 are not solid wastes if they are applied to the land and that is their ordinary
manner of use.

(2)
Burning for energy recovery.
(i) Materials noted with a “*” in column 2 of Table 1 are solid wastes when they are:

(A) Burned to recover energy;

(B) Used to produce a fuel or are otherwise contained in fuels (in which cases the fuel itself remains a solid waste).

(ii) However, commercial chemical products listed in
§
261.33 are not solid wastes if they are themselves fuels.

(3)
Reclaimed.
Materials noted with a “

” in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with an “*” in
column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements of
§§
261.2(a)(2)(ii), or 261.4(a)(17), or
261.4(a)(23), or 261.4(a)(24) or 261.4(a)(25).

(4)
Accumulated speculatively.
Materials noted with a “*” in column 4 of Table 1 are solid wastes when accumulated speculatively.

What is solid waste?

Solid waste means any garbage, refuse, sludge from a wastewater treatment plant, water
supply treatment plant, or air pollution control facility and other discarded materials
including solid, liquid, semi
-
solid, or contained gaseous material, resulting from industrial,
commercial, mining and agricultural operations, and from community activities, but does
not include solid or dissolved materials in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges that are point sources subject
to permit under 33 USC 1342, as amended (86 Stat. 880), or source, special nuclear or
by
-
product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat.
923) except as may be provided by existing agreements between the State of New York
and the government of the United States (see section 360
-
1.3 of this Part).

In Simple Words

-

Solid wastes are any discarded (abandoned or considered waste
-
like) materials. Solid wastes can be solid, liquid, semi
-
solid or containerized gaseous
material.

NY Department of
Environmental Conservation
Definition

(d)
Inherently waste
-
like materials.
The following materials are solid wastes when they are recycled in any manner:

(1) Hazardous Waste Nos. F020, F021 (unless used as an ingredient to make a product at the site of generation), F022, F023, F
026
, and F028.

(2) Secondary materials fed to a halogen acid furnace that exhibit a characteristic of a hazardous waste or are listed as a h
aza
rdous waste as defined in subparts C or
D of this part, except for brominated material that meets the following criteria:

(i) The material must contain a bromine concentration of at least 45%; and

(ii) The material must contain less than a total of 1% of toxic organic compounds listed in appendix VIII; and

(iii) The material is processed continually on
-
site in the halogen acid furnace via direct conveyance (hard piping).

(3) The Administrator will use the following criteria to add wastes to that list:

(i)(A) The materials are ordinarily disposed of, burned, or incinerated; or

(B) The materials contain toxic constituents listed in appendix VIII of part 261 and these constituents are not ordinarily fo
und

in raw materials or products for
which the materials substitute (or are found in raw materials or products in smaller concentrations) and are not used or reus
ed
during the recycling process; and

(ii) The material may pose a substantial hazard to human health and the environment when recycled.

(e)
Materials that are not solid waste when recycled.
(1) Materials are not solid wastes when they can be shown to be recycled by being:

(i) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed;

or

(ii) Used or reused as effective substitutes for commercial products; or

(iii) Returned to the original process from which they are generated, without first being reclaimed or land disposed. The mat
eri
al must be returned as a substitute
for feedstock materials. In cases where the original process to which the material is returned is a secondary process, the ma
ter
ials must be managed such that there
is no placement on the land. In cases where the materials are generated and reclaimed within the primary mineral processing i
ndu
stry, the conditions of the
exclusion found at
§
261.4(a)(17) apply rather than this paragraph.

(2) The following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process (d
esc
ribed in paragraphs (e)(1) (i) through (iii)
of this section):

(i) Materials used in a manner constituting disposal, or used to produce products that are applied to the land; or

(ii) Materials burned for energy recovery, used to produce a fuel, or contained in fuels; or

(iii) Materials accumulated speculatively; or

(iv) Materials listed in paragraphs (d)(1) and (d)(2) of this section.

(f)
Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation.
Respondents in actions to enforce regulations implementing
subtitle C of RCRA who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation
, m
ust demonstrate that there is a known
market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must pr
ovi
de appropriate documentation
(such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate th
at
the material is not a waste, or is
exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials mu
st
show that they have the necessary
equipment to do so.

[50 FR 664, Jan. 4, 1985, as amended at 50 FR 33542, Aug. 20, 1985; 56 FR 7206, Feb. 21, 1991; 56 FR 32688, July 17, 1991; 56

FR

42512, Aug. 27, 1991; 57 FR
38564, Aug. 25, 1992; 59 FR 48042, Sept. 19, 1994; 62 FR 6651, Feb. 12, 1997; 62 FR 26019, May 12, 1997; 63 FR 28636, May 26,

19
98; 64 FR 24513, May 11, 1999;
67 FR 11253, Mar. 13, 2002; 71 FR 40258, July 14, 2006; 73 FR 64760, Oct. 30, 2008; 75 FR 13001, Mar. 18, 2010]

EPA Definition



Use constituting
disposal

(
§
261.2(c)(1))

Energy recovery/ fuel

(
§
261.2(c)(2))

Reclamation
(261.2(c)(3)),

except as

provided in
§§
261.2(a)(2)(ii),
261.4(a)(17),
261.4(a)(23),
261.4(a)(24), or
261.4(a)(25)

Speculative

accumulation
(
§
261.2(c)(4))



1

2

3

4

Spent Materials

(*)

(*)

(*)

(*)

Sludges (listed in 40
CFR Part 261.31 or
261.32)

(*)

(*)

(*)

(*)

Sludges exhibiting a
characteristic of
hazardous waste

(*)

(*)



(*)

By
-
products (listed in
40 CFR 261.31 or
261.32)

(*)

(*)

(*)

(*)

By
-
products exhibiting a
characteristic of
hazardous waste

(*)

(*)



(*)

Commercial chemical
products listed in 40
CFR 261.33

(*)

(*)





Scrap metal that is not
excluded under
§
261.4(a)(13)

(*)

(*)

(*)

(*)

EPA Tool

Examples


waste tires


septage


scrap metal


latex paints


furniture and toys


domestic refuse (garbage)


discarded appliances and vehicles


uncontaminated used oil and anti
-
freeze


empty aerosol cans, paint cans and compressed gas
cylinders


construction and demolition debris, asbestos


Handling Definitions


A material is discarded if it is abandoned by being:


disposed of;


burned or incinerated, including being burned as a fuel for the
purpose of recovering usable energy; or


accumulated, stored or physically, chemically or biologically
treated (other than burned or incinerated) instead of or
before being disposed of.


A material is disposed of if it is
: Discharged,
deposited, injected, dumped, spilled, leaked or placed into
or on any land or water so that such material or any
constituent thereof may enter the environment or be
emitted into the air or discharged into groundwater or
surface water.


Source: http://www.dec.ny.gov/chemical/8732.html

Setting the Stage


WWII


1950s and 1960s


1956: the Federal Highway Act increased US road mileage
by 40000 miles while rails and bus systems remain
unsubsidized


Solid Waste Disposal Act (1965)

R² = 0.889

0
2000000
4000000
6000000
8000000
10000000
12000000
1890
1900
1910
1920
1930
1940
1950
1960
1970
1980
1990
US Car Production

Year

US Car Production by Year

SDWA 1965


Unregulated Waste Disposal

Resources Conservation and Recovery
Act (RCRA)


EPA formed in 1970s had been monitoring solid wastes


Amendment to SWDA


So powerful that SWDA is referred to as RCRA


Congress established RCRA’s goals, which are to:


Ensure
that wastes are managed in a
manner that
protects
human health and the
environment


Reduce
or eliminate, as expeditiously as
possible, the
amount
of waste generated,
including hazardous waste


Conserve
energy and natural
resources through
waste
recycling and recovery.

to as RCRA

http://www.epa.gov/wastes/inforesources/pubs/k02027.pdf

RCRA States vs. Federal


Federal Standards


State Standards ≥ Federal Standards


Federal Enforcement still maintains authority even if state
is granted permission


CERCLA


Superfund Sites


abandoned hazardous waste locations
that must be cleaned up


Bankruptcy and Polluter Fees


EPA must involve states when concerning:


Negotiations with potentially responsible parties


The National Priorities List listing and deleting process


Study of the site to determine cleanup options


Selection and implementation of the remedy.

http://www.resistinc.org/newsletters/articles/superfund
-
faces
-
super
-
challenges

CERCLA State Coercion


CERCLA, as amended, prohibits EPA from providing for a remedial action unless the State
makes the following assurances or guarantees:


Pay part of the cleanup.
A State is required to pay 10 percent of the cost of actual cleanup
only if the site was privately operated at the time of the hazardous substance release. A State
is required to pay 50 percent or more of the total response costs incurred by Superfund if the
State or locality operated the site at the time hazardous wastes were disposed there. For
States example, if an old municipal landfill is found leaking hazardous chemicals, the State
would be required to provide at least half the cost of an entire Superfund response. Political
subdivisions may provide the cost share, but the State must assure payment in case of default.


Ensure the availability of a facility(s) for disposal of hazardous materials removed from a site
during cleanup.
Disposal facilities must comply with all Federal and State requirements, and
must not threaten the quality of human health and the environment.


Ensure that the State’s disposal capacity can adequately handle all wastes generated within the
State over 20 years (effective starting in 1989).


Operate and maintain the selected remedy once the cleanup is completed and is proven to be
operational and functional.
The State assumes full responsibility for future operation and
maintenance. Although a political subdivision may manage the actual operation and in
maintenance of the selected remedy, the State maintains ultimate responsibility

CERCLA


Money


Superfund State Contracts


Federal leadership


Cooperative Agreements


State leadership


ISRA


New Jersey’s Industrial Site Recovery Act


State level regulation


Property transfer law; environmental condition of property
mandatory before transfer

Federal Motor Carrier Safety Regulations


Department Of Transportation (Oct 1, 1998)


Governs


the manufacture, fabrication, marking, maintenance,
reconditioning, repair, testing, or distribution of packages or
containers for use by any "person" in the transportation of
hazardous materials in commerce, or


the transportation or shipment by any "person" of hazardous
materials in "commerce”


Controls packaging, labeling, handling & record keeping

Cases


U.S. v. Power Engineering Co., No. 01
-
1217 (Sept. 4, 2002)


RCRA


Players: Colorado Department of Public Health and
Environment, EPA, Power Engineering Co.


Decision: EPA can enforce their regulations even after a state
has already enforced its own regulations

Source: http://www.epa.gov/compliance/resources/cases/civil/rcra/power090402.html

Cases (Continued)


Litgo

New Jersey, Inc. v. Jackson


CERCLA


States can waive immunity from being sued in Federal Court by
private citizens


Essentially, states that pollute a lot can leave private citizens to
foot the bill under CERCLA


If site is on NPL, then state will have to pay for pollution
however. (possible gaming?)

http://www.martenlaw.com/newsletter/20080213
-
immunity
-
not
-
waived

Cases (Continued)



Bob
Graveley

Ranch and Trucking
, Docket No. FMCSA


2007
-
0101
-
USO436


Federal Motor Carrier Safety Regulations


Interstate commerce is regulated by FMCSA


Cattle trucked to outskirts of Montana, then trucked to North
Dakota by different company


Jurisdiction of act is expanded to interstate commerce because
this implies transportation

http://www.fmcsa.dot.gov/documents/Chief
-
Counsel/2009/civil
-
penalty/101309%20CP%20Robert%20Gravely%20dba%20Bob%20Gravely%20Ranch%20and%20Trucking%202007
-
0101
-
508.pdf

http://www.google.com/url?sa=t&source=web&cd=3&ved=0CCoQFjAC&url=http%3A%2F%2Fwww.concorde2000.com%
2Fart%2Fdocuments%2FGravelyCaseStudyDocument.doc&rct=j&q=Federal%20Motor%20Carrier%20Safety%20court%20
case%20state%20federal&ei=4d6tTdm4Osfn0QGmpbzKCw&usg=AFQjCNHawbSgAATT
-
q
-
MK9q2VYHxSEB6fg&sig2=FkLcGO9se7S8GAHN7D4f1A&cad=rja

Other Issues

Other Issues


Endangered Species Act of 1973


“Provides a program for the conservation of threatened and
endangered plants and animals and the habitats in which they
are found”


Managed overall by USFWS and NOAA Fisheries Service


Section 6 provides funding for state level programs


Some plants or animals may be threatened within a state, but not
throughout the country

Other Issues (continued)


Emergency Planning and Community Right
-
to
-
Know Act
of 1986


Created by Superfund Amendments and Reauthorization Act of
1986


Required establishment of state and tribe emergency response
commissions


Section 302 requires facilities to notify local commissions of
presence of any “extremely hazardous substance”


Other Issues (continued)


Federal Insecticide, Fungicide, and
Rodenticide

Act of
1996


Created to regulate pesticides in the US


All pesticides distributed or sold in US must be registered by
the EPA


EPA works with states to develop pesticide programs, monitor
procedures and encourage regulatory activities within states
and tribes


Questions?