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Manufacturing Cycle. Reduced Materials. By-products TSCA. Raw Material TSCA Resource Acquisition Mining Acts Timber Acts Clean Water Act. Products. Air Emissions Clean Air Act. Worker Safety OSHA. Waste. Storm Water. Recycled. Liquids. Hazardous (Subtitle C). Solid Waste

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Manufacturing cycle
Manufacturing Cycle

Reduced

Materials

By-products

TSCA

Raw Material

TSCA

Resource Acquisition

Mining Acts

Timber Acts

Clean Water Act

Products

Air Emissions

Clean Air Act

Worker Safety

OSHA

Waste

Storm

Water

Recycled

Liquids

Hazardous

(Subtitle C)

Solid

Waste

RCRA

Surface Water

Discharge

Clean Water Act

Direct or POTW

Land Disposal

Incinerator

Released

CERCLA


Manufacturing cycle1
Manufacturing Cycle

Reduced

Materials

By-products

TSCA

Raw Material

TSCA

Resource Acquisition

Mining Acts

Timber Acts

Clean Water Act

Products

Air Emissions

Clean Air Act

Worker Safety

OSHA

Waste

Storm

Water

Recycled

Liquids

Hazardous

(Subtitle C)

Solid

Waste

RCRA

Surface Water

Discharge

Clean Water Act

Direct or POTW

Land Disposal

Incinerator

Released

CERCLA


Waste stream
Waste Stream

Manufacturing

RELEASE = CERCLA

Product/ Packaging

Consumption/Use

RCRA

Air Emissions

Business

Consumer

Disposal

Solid Waste

Solid Waste

Recycling

HazWaste

Discharge to Surface Waters

RCRA

RELEASE = CERCLA

LAND DISPOSAL


Waste stream cont d
Waste Stream Cont’d

Solid Waste (RCRA)

EPCRA

Hazardous Waste

Including Household Items

Hazardous Material Trans. Act

Landfills

Incinerator

RCRA

Clean Air Act

Treatment

Storage

Disposal

Ocean

Export

Prohibited

Incinerator

Landfills

Basel Convention

Export


History what s next article
History: What’s Next Article

  • Rachel Carson, The Cuyahoga and the Santa Barbara Channel History

  • 1400 AD on: The Common Law: (a) trespass; (b) nuisance; (c) strict liability(Rylands v. Fletcher)

  • English Common Law adopted wholesale throughout the colonies (exc Louisiana)

  • Labor Movement led to workplace protection laws – inside and outside environment

  • Property Laws :Trespass and Nuisance Modified to meet the needs of the Industrial Revolution

  • 1899 Rivers & Harbors Act: Corps of Engineers has permit authority over any construction in “navigable waters of the US”. Permit authority largely ignored until the 60”s but the act was used to regulate hazards to navigation.


History continued
History Continued

  • Safe Drinking Water: Prime concern spawned early regulation of water systems

  • Smoke Ordinances: Backyard Barbeques and Big V-8’s: Southern California in the 60’s. Dr. Haagen-Smit

  • 1969 Clean Air Act - local efforts such as those in LA led to state and federal enabling legislation that defined intergovernmental relationships (eg, pre-emption)

  • 1969 Santa Barbara Oil Spill

  • 1971 Clean Air act amended gave California power to require pollution control on cars

  • NEPA National environmental policy Act(state environmental policy act)

  • May 1971 Ruckleshaus said life style change if want better environment

    • 1971 Lloyds’ of London no longer insure heads of companies

    • The Cuyahoga River Burns: The Clean Water Act revised in 1972


Criminal and civil law

Criminal Law

Administrative Law

Antitrust

Constitutional Law

Criminal Law

Environmental Law

Labor Law

Securities Law

Civil Law

Agency

Bailments

Bankruptcy

Business Organization

Commercial Paper

Contracts

Insurance

Property

Sales

Secured Transactions

Torts

Trust and Wills

Criminal and Civil Law

Civil/Criminal Comparison(Legal subject indices can be found at Find law and Wash law.) An important feature distinguishing criminal and civil law is the sanction imposed on the wrongdoer. Criminal sanctions may include imprisonment while civil sanctions emphasize payment of money.


Legislative branch
Legislative Branch

Legislative Branch: Congress and the State Legislatures

  • Law Making: Policy, Committees, and Partisanship

  • The Budget Process: Underpinning All

  • Investigation and Oversight Functions

  • Reapportionment:The importance of reapportionment of congressional seats (which occurs once a decade) cannot be understated. With the precision of lasers of G.I.S., legislative maps are cast in concrete for ten years (although recently federal courts have re-drawn legislative maps and shifted the balance of power. North Carolina cases)


Executive branch
Executive Branch

Executive Branch: President and Governors

  • “Bully Pulpit”

  • Presentation of Legislation and Budgets

  • The Veto: Complete, Line and Pocket

  • Management of Agencies: “Creative Tension”


Federal courts
Federal Courts

  • Constitutional Powers:Marbury v. Madison. Enforcement

  • Organization

  • District Courts, where trials occur and

    • findings of fact are made (by Judge or Jury)

    • the law is applied.

  • Circuit Courts of Appeal, where cases from the district courts are reviewed to ensure that the law has been applied correctly.

  • US Supreme Court, which hears only cases involving constitutional issues or federal questions. A case is heard only when four Justices (of the nine) vote to grant a hearing.

  • Specialty Courts: Bankruptcy, Patent, Tax, Environment?


Criminal law procedure
Criminal Law & Procedure

  • Intro including

    • Exclusionary Rule

    • Corporate Defendants (inc. officers)

    • Parallel Prosecution

  • Investigative Stages: warrants, wiretaps

  • Charging Process: grand jury/information

  • Trial Procedure

  • Sentencing Issues



The supremacy clause
The Supremacy Clause

  • Preemption- Lawsof US Supreme Court under cases where state law conflicts with federal law (p.169). Can be sword or shield: federal products liability law

  • Express preemption by Congress:More common of late: Clean Air Act Kinley Corp. v. Iowa Utilities (p 170) HLPSA; Clean Air Act and Clean Water Act ANTI-pre-emption language CA motor vehicle exemption

  • Implied Preemption:Silkwood v. Kerr-McGee 464 US 238 (1984) (pp 172-173): pre-emption of common law or state statutory actions

  • Cases Where Dual Compliance’s Is Impossible:FAA cases (airport hours); RCRA (p 173): hazewaste prohibition invalid, but SITING regs which are “evenhanded” are upheld (but see Nuclear Regulatory Act)

  • Cases Where State Law Interferes With Policy Objectives Of Federal Law:Fed Power Act (CA v. FERC, 495 US 490 (1990) CA stream flow laws “would disturb and conflict with the balance embodied in that federal agency determination.” (p 174)


Manufacturing cycle

Commerce Clause: 2 questions: (1) what can the federal government regulate? and (2) what can states regulate?

Interstate Commerce Clause: part of Constitution to foster trade between states (continental free trade zone)

If interstate commerce, federal government can get involved. School Gun case; US v. Lopez 514 US 549

Most environmental legislation complies with commerce clause because of the transitory nature of pollutants. What might not? USACE, “isolated wetlands” cases


Manufacturing cycle

  • “Dormant Commerce Clause”:How far can states go? Cannot unreasonably interfere with interstate commerce

    • Mud Flaps cases from the 50’s

    • Environmental Cases: City of Philadelphia v. NJ (ban)

      • taxes, fees that discriminate also violate DCC

      • Chem Waste Mgmt v. Hunt

    • The ‘balancing test”: Proctor & Gamble v. Chicago (phosphate ban):

  • “Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”


Manufacturing cycle

  • Congress May Authorize States to Act:Compacts-agreements set by congress, etc. between states. eg,

    • Southeast Regional Compact:Solid Waste Cases NB: NC as been expelled and is facing litigation to recover over $100 million lost because of delays

    • Tahoe Regional Planning Agency

    • Water Agreements


Evidentiary search and seizure
Evidentiary Search And Seizure

  • Government Conduct Required

  • Reasonable Expectation of Privacy

    • Standing

    • Things Held Out to the Public

      • Generally – No Expectation of Privacy

      • “Open Fields” Doctrine

      • Fly-Overs

  • Searches Conducted Pursuant to a Warrant

    • Requirements of a Warrant

    • Showing of Probable Cause

    • Use of Informers

    • Warrant Must Be Precise on Its Face

    • Execution of a Warrant Must Be Executed by the Police


Evidentiary search and seizure continued
Evidentiary Search And Seizure Continued

  • Exceptions to Warrant Requirement

    • Search Incident to a Lawful Arrest

    • “Automobile” Exception

    • Plain View

    • Consent

    • Stop and Frisk

    • Hot Pursuit, Evanescent Evidence, and Other Emergencies

  • Administrative Inspections and Searches

    • Warrant Required for Searches of Private Residences and Businesses: Proof much lower than regular S/W

    • Exceptions Permitting Warrantless Searches

      • Contaminated Food

      • Highly Regulated Industries

    • Inventory Searches

  • Wiretapping and Eavesdropping


Manufacturing cycle

  • Privilege Against Compelled Self-incrimination

    • Who May Assert The Privilege?

    • When May Privilege Be Asserted?

    • Method For Invoking The Privilege

    • Scope Of Protection

      • Testimonial But Not Physical Evidence

      • Compulsory Production of Documents Corporate Records

      • Seizure and Use of Incriminating Documents

    • Grant Of Immunity

      • “Use and Derivative Use” Immunity Sufficient

      • Immunized Testimony Involuntary

      • Use of Testimony by Another Sovereign Prohibited

      • NO POSSIBILITY OF INCRIMINATION

      • WAIVER OF PRIVILEGE

  • Confessions

  • Pretrial Identification

  • Double Jeopardy


Dispute resolution
Dispute Resolution

  • Alternative Dispute Resolution

    • Contract v. Statutory/Voluntary v. Accidental

    • Methods: Arbitration, Mediation; “Stakeholders” (NC 75 ft buffer rule); Private Judges

    • Limitations: Tactical and Practical

  • Extra Judicial: The Press and Political Process

  • Litigation:Civil Procedure

    • The Case: Rights, Remedies and Defenses

    • Jurisdiction: Long-arm statutes

    • Procedure


Manufacturing cycle

Answer

Challenges Facts

“Not True”

Motion to

Dismiss

(Challenges

Legal Theory)

Appeal

Complaint

(Plaintiff selects

Forum)

  • Discovery

  • Interrogatories

  • Requests to

  • Produce/Inspect

  • Depositions

  • Requests to Admit

Trial

(Court or Jury)

Response

  • ADR

  • Mediation

  • Arbitration

  • Special Procedures

  • Temporary

  • Injunction

  • Receivers


Litigation process
Litigation Process

  • Litigation Process

    • Initiation of Action: Plaintiff

      • Rights: Theory of Case

      • Remedies: Money, Injunction; Declaration of rights;

      • Strategy of Jurisdiction/Venue

      • Remedies during litigation: preliminary injunction; receiver


Litigation process continued
Litigation Process Continued

  • Response:

    • Challenge Legal Theory:Motion to Dismiss (“So what?”) assumes that the facts are true: eg Clean Water Act Civil Suit

      • Challenge Jurisdiction/Venue

      • Direct Appeal from Dismissal

    • Challenge Facts:DENY key facts

    • Sets stage for Trial of Disputed Facts


Litigation process continued1
Litigation Process Continued

  • Pre-Trial Process: 70-80% resolved

    • Discovery:

      • Interrogatories

      • Depositions: lay witness or Expert

      • Motions to Inspect/Produce

      • Request for Admissions

    • ADR: Mediation or Arbitration

    • Motions

      • To Dismiss

      • Summary Judgment: No real factual dispute

      • Motions to exclude Evidence


Litigation process continued2
Litigation Process Continued

  • Trial:

    • Order

    • Trier-of-Fact: Judge or Jury

    • Evidence:

      • Examination/Cross-Examination

      • Non-Testimonial Evidence

    • Instructions to Jury

    • Argument


Litigation process continued3
Litigation Process Continued

  • Appeal:

    • Effect: Vacate Trial Court

    • Remedies Pending Appeal

    • Remedies on Appeal:

      • Reversal: whole or partial

      • Return to court: factual determinations

      • Remand with instructions to apply law


Manufacturing cycle

C

A

B


Manufacturing cycle

  • Agency Components:

  • A. Political Appointees: Staff and Policy Board

    • Planning & Policy Directives

    • Review of Regulations

    • Review of Appeals

  • B. Professional Staff

    • Administrative

    • Technical

    • Enforcement


  • Manufacturing cycle

    Agency Components

    • Administrative & Fiscal

    • Planning & Policy (Regulations)

    • Permit and Implementation

    • Research

    • Enforcement

    • Compliance Assistance

    • Environmental Education


    Manufacturing cycle

    EPA ORGANIZATIONAL CHART

    http://www.epa.gov/epahome/organization.htm



    North carolina proposed nonattainment 2009 map for ozone 2008 standard
    North Carolina Proposed Nonattainment (2009) Map for Ozone 2008 Standard

    http://www.ncair.org/planning/ozone/o3boundary/NC_Proposed_Boundaries_2009.pdf


    North carolina nonattainment map for pm2 5
    North Carolina Nonattainment Map for PM2.5 2008 Standard

    http://www.ncair.org/planning/pm2dot5/pm2.5_final_nonattainment_areas.pdf


    Ambient co concentration since 1980
    Ambient CO Concentration Since 1980 2008 Standard

    http://www.epa.gov/roe/


    Ambient lead concentration
    Ambient Lead Concentration 2008 Standard

    http://www.epa.gov/roe/


    Ambient no 2 concentration
    Ambient NO 2008 Standard2 Concentration

    http://www.epa.gov/roe/


    Ambient ozone concentration since 1978
    Ambient Ozone Concentration Since 1978 2008 Standard

    http://www.epa.gov/roe/


    Lead emission sources
    Lead Emission Sources 2008 Standard

    http://www.epa.gov/roe


    No x emission sources
    NO 2008 Standardx Emission Sources

    http://www.epa.gov/roe/


    Mercury emission sources
    Mercury Emission Sources 2008 Standard

    http://www.epa.gov/roe/


    So 4 deposition acid rain
    SO 2008 Standard4 Deposition (Acid rain)

    http://www.epa.gov/roe/


    Manufacturing cycle

    • Federal Role: 2008 Standard

      • Setting Air Quality and Emissions Standards:EPA sets national standards in several categories, including:

        • National Ambient Air Quality Standards:EPA set health-based National Ambient Air Quality Standards, starting in 1972, per Section 109 of the Clean Air Act:

          • National primary ambient air qualitystandards, prescribed, under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated. [i]

          • Secondary standards must also be set to protective of plants and animals. ((Sec. 109 (b)(2)). The standards must be reviewed and adjusted to meet goals every five years.


    Criteria pollutant standard
    Criteria Pollutant Standard 2008 Standard

    Carbon Monoxide (CO) 8-hour Average 9 ppm. (10 mg/m3) Primary 1-hour Average 35 ppm. (40 mg/m3) Primary

    Nitrogen Dioxide (NO2) Annual Arithmetic Mean 0.053 ppm (100 µg/m3) Primary & Secondary

    Ozone (O3)1-hour Average 0.12 ppm. (235 µg/m3) Primary & Secondary 8-hour Average 0.08 ppm. (157 µg/m3) Primary & Secondary

    Lead (Pb)Quarterly Average 1.5 µg/m3 Primary & Secondary

    Particulate (PM 10)Particles with diameters of 10 micrometers or less Annual Arithmetic Mean 50 µg/m3 Primary & Secondary 24-hour Average150 µg/m3 Primary & Secondary

    Particulate (PM 2.5)Particles with diameters of 2.5 micrometers or less  Annual Arithmetic Mean 15 µg/m3 Primary & Secondary 24-hour Average 65 µg/m3 Primary & Secondary

    Sulfur Dioxide (SO2)Annual Arithmetic Mean 0.030 ppm. (80 µg/m3) Primary 24-hour Average 0.14 ppm. (365 µg/m3) Primary 3-hour Average 0.50 ppm. (1300 µg/m3) Secondary


    Criteria pollutant standard continued
    Criteria Pollutant Standard 2008 StandardContinued

    Ozone:Non-attainment areas for ozone are widespread. Because of health concerns, EPA and others proposed a change from a 1-hour standard to and 8 hour standard to better manage longer-term exposure. This change meant more areas would be in non-compliance and a pitched battle over the standard spilled over from the Clinton Administration to the Bush Administration. Supreme Court heard ATA v. Whitman in 2001; the Bush Administration did adopt the Clinton 8-hour standard. (68 Fed Reg 614 Jan 6 2003)


    Criteria pollutant standard continued1
    Criteria Pollutant Standard Continued 2008 Standard

    Fine Particulates:At one time environmental engineers elected to concentrate on large particulates (PM10) because it was thought in the 70’s that health concerns were minimal for smaller particles and the energy crisis made diesel engines (a major source of fine particulates) attractive. However, a nearly accidental study occasioned by a college student’s incomplete term paper led to an epidemiological discovery of the harm of fine particulates (PM2.5) and EPA began the regulatory process which led to the second standard upheld inWhitman v. ATA. The standard now has been finalized. [Wall St. Journal 11/25/96)


    State federal air quality management model
    State - Federal Air Quality Management Model 2008 Standard

    • State Air Quality Agency

    • SIP’s

      • Reviewed by EPA

    • Permits

    • Enforcement

    • State Standards

      • Enhanced Air Quality Standards

      • Emissions Standards

      • Equipment Specification

    • Reporting to EPA

    • EPA

    • Sets Ambient Air Quality Standards

    • Emissions Standards:

      • Hazardous Air Pollutants

      • New Source Performance Standard

      • Mobile Source Emissions Standard

    • Oversight of SIP’s

    • Research and Funding

    Policy Board

    Hearing Board


    Manufacturing cycle

    State Air Quality Agency 2008 Standard

    Air Quality District

    Regional Air Quality District

    Policy Board

    Policy Board

    Hearing Board

    Hearing Board


    Non attainment area permit process
    Non-Attainment Area Permit Process 2008 Standard

    Existing Major Source

    N

    Y

    Emissions Above Major Modification Significant Level

    Emissions Above Major Source Threshold

    Y

    Y

    NSR: Limit Emissions: e.g. limit operating hours, Install control equipment, emissions trading, process changes

    N

    N

    Y

    N

    Y

    Minor Construction Permit

    Major Construction (Employ LAER technologies and Offsets)

    Permit to Operate


    Manufacturing cycle

    NON-ATTAINMENT AREAS 2008 Standard

    • NSR: New Source Review: Triggers

    • LAER: Lowest Available Emission Reduction

    • OFFSETS


    Attainment area permit process
    Attainment Area Permit Process 2008 Standard

    Existing Major Source

    N

    Y

    Emissions Above Major Modification Significant Level

    Emissions Above Major Source Threshold

    Y

    Y

    NSR: Limit Emissions: e.g. limit operating hours, Install control equipment, emissions trading, process changes

    N

    N

    Y

    N

    Y

    Minor Construction Permit

    Major Construction Permit for PSD (Employ BACT technologies and Offsets)

    Permit to Operate


    Manufacturing cycle

    BACT: 2008 Standard“an emission limitation based on the maximum degree of [pollutant] reduction…which the [state] permitting authority, on a case-by-case basis, taking into account energy, environmental and economic impacts and other costs, determines is achievable for [the] facility.”

    ADEC v. EPA (2004)


    Manufacturing cycle

    EPA OVERSIGHT OF PERMITTING 2008 Standard

    Alaska Dept. of Env. Conservation v. EPA (2004)

    *FACTS: Zinc mine had permit in attainment area. Proposed to add generators by reducing emissions from first set, but no BACT for new generators. Alaska permitted based on economic impact, but with no findings because company did

    not submit. EPA voided the approval.

    * Supreme Court said that EPA properly exercised its

    discretion because the CAA requires BACT and ADEC did not have an adequate factual basis to avoid BACT on each

    generator.

    COMPARE:The Bubble Concept [cube]


    National emissions standards for hazardous air pollutants neshaps
    National Emissions Standards for Hazardous Air Pollutants 2008 Standard (NESHAPS)

    • technology-based emissions standards for hazardous/toxic air pollutants.

    • WHAT HAS EPA DONE TO REDUCE AIR TOXICS?

    • The Pre-1990 “Risk-Only” Approach Prior to 1990, the Clean Air Act directed EPA to regulate toxic air pollutants based on the risks each pollutant posed to human health. Specifically, the Act directed EPA to:[(1)] Identify all pollutants that caused “serious and irreversible illness or death.” [and](2) Develop standards to reduce emissions of these pollutants to levels that provided an “ample margin of safety” for the public. While attempting to control air toxics during the 1970s and 1980s, EPA became involved in many legal, scientific, and policy debates over which pollutants to regulate and how stringently to regulate them. Debates focused on risk assessment methods and assumptions, the amount of health risk data needed to justify regulation, analyses of the costs to industry and benefits to human health and the environment, and decisions.


    The 1990 clean air act amendments
    The 1990 Clean Air Act Amendments 2008 Standard

    • A “Technology First, Then Risk” Approach Realizing the limitations of a chemical-by-chemical decision framework based solely on risk, and acknowledging the gaps in scientific and analytical information, Congress adopted a new strategy in 1990, when the Clean Air Act was amended. Specifically, Congress revised Section 112 of the Clean Air Act to mandate a more practical approach to reducing emissions of toxic air pollutants.

    • This approach has two components. In the first phase, EPA develops regulations—MACTstandards—requiring sources to meet specific emissions limits that are based on emissions levels already being achieved by many similar sources in the country. Even in its earliest stages, this new “technology-based” approach clearly produced real, measurable reductions. In the second phase, EPA applies a risk-based approach to assess how these technology-based emissions limits are reducing health and environmental risks. Based on this assessment, EPA may implement additional standards to address any significant remaining, or residual, health or environmental risks. EPA completed development of its strategy foraddressing residual risks from air toxics in March of 1999http://www.epa.gov/oar/oaqps/takingtoxics/p1.html#8



    Manufacturing cycle

    • “Each of today's cars produces 60 to 80 percent less pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    • Motor vehicles are responsible for up to half of the smog-forming VOCs and nitrogen oxides (NOx). Motor vehicles release more than 50 percent of the hazardous air pollutants. Motor vehicles release up to 90 percent of the carbon monoxide found in urban air.

    • What went wrong?More people are driving more cars more miles on more trips. In 1970, Americans traveled 1 trillion miles in motor vehicles, and we are expected to drive 4 trillion miles each year by 2000. Many people live far from where they work; in many areas, buses, subways, and commuter trains are not available. Also, most people still drive to work alone, even when van pools, HOV (high-occupancy vehicle) lanes and other alternatives to one-person-per-car commuting are available. Buses and trucks, which produce a lot of pollution, haven't had to clean up their engines and exhaust systems as much as cars. Auto fuel has become more polluting. As lead was being phased out, gasoline refiners changed gasoline formulas to make up for octane loss, and the changes made gasoline more likely to release smog-forming VOC vapors into the air.

    • Although cars have had pollution control devices since the 1970s, the devices only had to work for 50,000 miles, while a car in the United States is usually driven for 100,000 miles. ‘

      Source: EPAhttp://www.epa.gov/oar/oaqps/peg_caa/pegcaa04.html


    Mobile sources
    Mobile Sources pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    • Design:California Exception

      • Techniques:

        • Emissions Standards & Equipment Specifications:SUV’s, ZEV’s and LEV’s;

        • Energy Sources:more fossil fuels and the implications, DOE funding for fuel cell research; gasohol and the MTBE debacle; BIOFUELS

        • Systemic Transportation Issues:Land use patterns, highway funding, people moving, incentives, diamond lanes and carpools, block vans & cabs


    Manufacturing cycle

    MA v. EPA (2007) pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    • A group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating the emissions of four …[greenhouse] gases, including carbon dioxide, under §202(a)(1) of the Clean Air Act, which requires that the EPA .shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . .which in [the EPA Administrator.s] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endangerpublic health or welfare,. 42 U. S. C. §7521(a)(1).

    • The Act defines air pollutant. to include .any air pollution agent . . . , including any physical, chemical . . . substance . . . emitted into . . . the ambient air.. §7602(g).

    • EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time because a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established.


    Global warming
    Global Warming pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    • “Greenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise.Temperatures are, in fact, rising. The changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability. Human-induced warming and associated sea level rises are expected to continue through the 21st century…Because there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of greenhouse gases and aerosols, current estimates of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward)…

    • “Making progress in reducing the large uncertainties in projections of future climate will require addressing a number of fundamental scientific questions relating to the buildup of greenhouse gases in the atmosphere and the behavior of the climatesystem…In addition, the research enterprise dealing with environmental change and the interactions of human society with the environment must be enhanced…An effective strategy for advancing the understanding of climate change also will require (1) a global observing system in support of long-term climate monitoring and prediction, (2) concentration on large-scale modeling through increased, dedicated supercomputing and human resources, and (3) efforts to ensure that climate research is supported and managed to ensure innovation, effectiveness, and efficiency.”http://www.climatescience.gov/Library/stratplan2003/vision/actions.htm


    Manufacturing cycle

    CALIFORNIA’S GREENHOUSE GAS PLAN pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    California Legislature and Gov. Schwarznegger agree on legislation which:

    1. Sets stricter emissions standards


    Indoor air pollution
    Indoor Air Pollution pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    “There are many sources of indoor air pollution in any home. These include combustion sources such as oil, gas, kerosene, coal, wood, and tobacco products; building materials and furnishings as diverse as deteriorated, asbestos-containing insulation, wet or damp carpet, and cabinetry or furniture made of certain pressed wood products; products for household cleaning and maintenance, personal care, or hobbies; central heating and cooling systems and humidification devices; and outdoor sources such as radon, pesticides, and outdoor air pollution…..The relative importance of any single source depends on how much of a given pollutant it emits and how hazardous those emissions are.” http://www.epa.gov/iaq/ia-intro.html


    Indoor air pollution1
    Indoor Air Pollution pollution than cars in the 1960s. More people are using mass transit. Leaded gas is being phased out, resulting in dramatic declines in air levels of lead, a very toxic chemical. Despite this progress, most types of air pollution from mobile sources have not improved significantly. At present the United States:

    "Twenty-two thousand people die from lung cancer each year in the United States from exposure to indoor radon". "Yet Americans could help prevent these deaths and protect their families by testing their homes for radon as soon as possible."Christine Todd Whitman, Former EPA Administratorhttp://www.epa.gov/radon/


    Manufacturing cycle

    • Sec. 1251. - Congressional declaration of goals and policy (a) Restoration and maintenance of chemical, physical and biological integrity of Nation's waters; national goals for achievement of objective

    • In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter – (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;


    Manufacturing cycle

    Federal-state Partnerships: (a) (federalism/creativity)

    • Feds:

      • Set(1) technology-based discharge standards for point sources; and (2) standards to address non-point sources;

      • Research Funding and technical assistance,

      • Review of State programsand enforcement issues; criteria for state plans:

      • Resolve disputes among jurisdictions (Ark. v. Ok.)Virginia and North Carolina (Roanoke River)(Contrast CA vs. Nevada & Arizona)


    National discharge standards
    National Discharge Standards (a)

    • Source Category

    • Technology based standards* BPT (best practicable technology) BAT (best available technology) BCT (best conventional technology)

    • Exemptions: “Fundamentally Different Factors”

    • Carrying Capacity is Not Considered* TMDL (water discharge) total maximum daily loading

    • Three standards:

      • Conventional pollutantsBOD, ISF, Oil, Greas, PH, Fecal coliform (BCT/OPT)

      • Non conventional(ammonia, colors, dyes, iron) best available (BAT applies)

      • Toxicants(BAT) 100 on list silver, heavy metal


    Chart of regulation categories

    400 [Reserved] (a)

    401--General provisions

    402 [Reserved]

    403--General pretreatment regulations for existing and new sources of pollution

    405--Dairy products processing point source category

    406--Grain mills point source category

    407-- Canned and preserved fruits and vegetables processing point source category

    408-- Canned and preserved seafood processing point source category

    409--Sugar processing point source category

    410--Textile mills point source category

    411--Cement manufacturing point source category

    412--Feedlots point source category

    413--Electroplating point source category

    414--Organic chemicals, plastics, and synthetic fibers point source category

    415--Inorganic chemicals  manufacturing point source category

    416 [Reserved]

    417--Soap and detergent manufacturing point source category

    418--Fertilizer manufacturing point source category

    419--Petroleum refining  point source category

    420--Iron and steel manufacturing point source category

    421--Nonferrous metals manufacturing point source category

    422--Phosphate manufacturing point source category

    423--Steam electric power generating point source category

    424--Ferroalloy manufacturing point source category

    425--Leather tanning and finishing point source category

    426--Glass manufacturing point source category

    Chart of Regulation Categories


    Chart of regulation categories continued

    427 (a) --Asbestos manufacturing point source category

    428--Rubber manufacturing point source category

    429--Timber products processing point source category

    430--The pulp, paper, and paperboard point source category

    431--The builder's paper and board mills point source category

    432--Meat products point source category

    433--Metal finishing point source category

    434--Coal mining point source category BPT, BAT, BCT limitations and new source performance standards

    435--Oil and gas extraction point source category

    436--Mineral mining and processing point source category

    439--Pharmaceutical manufacturing point source category

    440--Ore mining and dressing point source category

    443--Effluent limitations guidelines for existing sources and standards of performance and pretreatment standards for new sources for the paving and roofing materials (tars and asphalt) point source category

    446--Paint formulating point source category

    447--Ink formulating point source category

    454--Gum and wood chemicals manufacturing point source category

    455--Pesticide chemicals

    457--Explosives manufacturing point source category

    458--Carbon black manufacturing point source category

    459--Photographic point source category

    460--Hospital point source category

    461--Battery manufacturing point source category

    463--Plastics molding and forming point source category

    464--Metal molding and casting point source category

    465--Coil coating point source category

    466--Porcelain enameling point source category

    467--Aluminum forming point source category

    468--Copper forming point source category

    469--Electrical and electronic components point source category

    471--Nonferrous metals forming and metal powders  point source category

    Chart of Regulation Categories Continued


    Manufacturing cycle
    North Carolina Watersheds (a) & Water Quality Designationshttp://h2o.enr.state.nc.us/bims/Reports/basinmapHydro.html/


    Nc primary classifications
    NC Primary Classifications (a)

    NC Water Quality Assessment and Impaired Waters List 2002 305(b) and 303(d) Report


    Epa tmdl program
    EPA “TMDL” Program (a)

    http://www.epa.gov/owow/tmdl/tptmdl/

    http://www.epa.gov/owow/tmdl/


    Water
    Water (a)

    http://www.specialdistricts.org/2/update/water/services/ccr/ccr.htm


    Cwa section 303
    CWA Section 303 (a)

    • Section 303(d) requires states to develop TMDL’s for water bodies that are impaired (can’t meet their intended use).

      • The TMDL calculates the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards.

    • What is the TMDL Program?

      • Development of a Section 303(d) list for all waters not meeting uses or where standards are violated (impaired).

      • TMDL’s or management plans are developed as a resource guide to restore impaired waters.

      • The State Environmental Agency (NC DWQ) is responsible for development of the 303(d) list and with EPA guidance the development of TMDLs.

      • New sources of pollution /discharge are prohibited until a TMDL is developed.


    Tmdl and monitoring priority ranking scheme
    TMDL and Monitoring Priority Ranking Scheme (a)

    NC Water Quality Assessment and Impaired Waters List 2002 305(b) and 303(d) Report


    North carolina approved tmdl standards 2001
    North Carolina Approved TMDL standards (2001) (a)

    • STREAM/CREEK/RIVER 312

    • ESTUARY 49

    • OCEAN 16

    • LAKE/RESERVOIR/POND 13

    • NOT REPORTED 4

    • Total Number of Impaired Waters Reported: 383http://oaspub.epa.gov/waters/state_rept.control?p_state=NC/


    Manufacturing cycle

    • Other Surface Water Issues (a)

      • Inter Basin vs. Intra Basin Transfers:The Colorado and the Roanoke River Cases: Seepage into systems; Coors Beer trading

      • Stream Flow Regulations[CA case]

      • Allocation Systems: California Allocations (see Dellapenna article and new Model Codes; regulated riparianism)

      • Water Quality Trading Policy(Jan13 2003-68 Federal Regulation 1608) Extends formal trading concept to surface waters

      • Effluent Charges:J.H. Dales


    Beach water quality data http yosemite epa gov water beach2002 nsf
    Beach Water Quality Data (a) http://yosemite.epa.gov/water/beach2002.nsf

    INFORMATIONAL: Beaches BILL (1999)


    Safe drinking water act
    Safe Drinking Water Act (a)

    • Key Concepts: Procedure and Liability:

      • Public Systems

      • Private Systems

    • Administration


    Major u s aquifers http www atlas usgs gov images 20maquifer gif
    Major U.S. Aquifers (a) http://www-atlas.usgs.gov/Images/20maquifer.gif


    Wetlands
    Wetlands (a)

    Source: EPA Final Report on Environment 2008


    Manufacturing cycle

    Introduction: Gateway Product Cannot Be Marketed Without Review; Three Approaches to Chemistry:

    • Food Drug and Cosmetic Act (Food Quality Protection Act of 1996). Dept. of Health and Human Services

      • Safe + Effective. Any food additive (Delaney)

      • Labeling Rules and Issues- “organic”

    • 1972: FIFRA- (Not included in TSCA definition of toxics) Federal insecticide, fungicide, rodenticide Originally designed to stop false advertising; Congress armored following Silent Spring

    • 1976 TSCA: Congress saw media-specific laws alone would not be sufficient. Chemistry approved/PMN and sale

    • Comparison with other Statutes: CERCLA and CAA and CWA: What to do once out into waste stream or environment in general?


    Manufacturing cycle

    • Exercise: Students Bring Pesticide Label Review; Three Approaches to Chemistry:

    • FIFRA: Registration & Restricted Access:

      • Key Concepts:

        • 2 types : Consumer and Licensed Applicator;

        • General laws like products liability still apply;

        • Standard labels;

        • Consumer Instructions & Compliance;

        • Two types of chemistry: before 1972 after 1972;

        • Cost-benefit analysis (305)


    Manufacturing cycle

    • Requirements of FIFRA Review; Three Approaches to Chemistry:: Pesticide must be registered if it meets criteria:

      • New Chemicals:Its composition is such to warrant the proposed claim for it; Its labeling and other materials comply with the requirements of the act; it performs intended function without reasonable adverse effects on the environment; when used in accordance with the widespread and commonly recognized practice, it will not generally cause UNREASONABLE adverse effects on the environment (thus Cost-Benefit important consideration); General v. Restricted

      • Pesticides in Use (Pre ‘72 and registered): Cancellation/ Suspension (“imminent hazard”)


    Manufacturing cycle

    • Administration of FIFRA Review; Three Approaches to Chemistry:

    • Limitations on FIFRA

      • Difficult for EPA to cancel pesticides

      • Trade Secrets and use of data

      • Health Effects studies emerging: Pop’s

      • Crossover: Effect to Surface and Ground Waters

      • Issues with Aerial Application NPDES Permit

      • Issues related to Organic Foods (eg. “organics”)

        (see handout)


    Manufacturing cycle

    • Food Quality Protection Act of 1996: Repeal of the Delaney Clause:

      • Key Concepts: “Safe” and “Effective,” “Additives”

      • Procedures:

        • Drugs: Independent Testing

        • Foods: New law requires both FDA and EPA to establish health-based standards for pesticides residues in all foods*Repealed Delaney Clause which was a Zero tolerance standard “reasonable certainty of no harm;” labeling

      • Hot Issues: What are you Eating? Labelling for Organics;

        Labelling of Food products


    Manufacturing cycle

    The Toxic Substances Control Act (TSCA) Clausewas enacted in 1976 as a “gateway” so that more would be known about toxic materials before they were used and disposed of.

    • EPA Authority:The Act authorizes EPA to

      • Review new chemicals and significant new uses of existing chemicals (Section 5),

      • Require testing of chemicals that may present a significant risk to human health or the environment (Section 4), (Interagency Testing Comm)

      • To study the effects of existing chemicals (Section 8)

      • To limit the manufacture, use, distribution and/or disposal of chemicals that present an “unreasonable risk.” (Section 6).


    Manufacturing cycle

    • Asbestos Hazard Emergency Response Act (1986) Clause[Corrosion Proof Fittings v. EPA 947 F.2d 1201 (1991):

      • “We conclude that EPA has presented insufficient evidence to justify its asbestos ban. We base this conclusion upon two grounds:the failure of the EPA to consider all necessary evidence and its failure to give adequate weight to statutory language requiring it to promulgate the least burdensome, reasonable regulation required to protect the environment adequately. Because the EPA failed to address these concerns, and because the EPA is required to articulate a “reasonable basis” for its rules,we are compelled to return the regulation to the agency for reconsideration.”[proceedings began in 1979]


    Manufacturing cycle

    • Regulating PCB’s (Sec. 6): Clause

      • Presumption of Unreasonable Risk, therefore: Ban on manufacture, processing or distributing PCB’s incommerce in the USunless in completely enclosed container or as specified.

    • Radon: Title III, directs EPA to develop model construction standards and techniques to control radon inNEW buildings. Creates clearinghouse and authorizes state grants

    • Lead-Based Paint Exposure Reduction Act:1992: Requires EPA and OSHA to identify lead paint hazards, including safe levels, and to develop training and certification programs for contractors who do abatement.Also includes REAL ESTATE disclosure linkages.


    Manufacturing cycle

    • (5) Biotechnology: Clausehttp://www.epa.gov/opptintr/biotech/fs-001.htmFinal

    • Regulations Under the Toxic Substances Control ActSummary: EPA is publishing final rules which fully implement its screening program for new microorganisms under Section 5 of the Toxic Substances Control Act (TSCA). These regulations tailor to microorganisms the screening program that has been in place since 1986 for microbial products of biotechnology. They establish a separate part in the Code of Federal Regulations for microbial products of biotechnology subject to TSCA, 40 C.F.R. Part 725; create a number of exemptions; and codify EPA's approach to research and development (R&D) for microbial products of biotechnology. These rules provide significant regulatory relief to those wishing to use certain products of microbial biotechnology. At the same time, these rules are designed to ensure that EPA can adequately identify and regulate risk associated with microbial products of biotechnology without unnecessarily hampering this important new industry.This fact sheet summarizes the key components of the final rules, "Microbial Products of Biotechnology; Final Regulations Under the Toxic Substances Control Act". For more details, please refer to the accompanying Federal Register Notice.

    • Microorganisms Subject to These Rules Microorganisms subject to this rule are "new" microorganisms used commercially for such purposes as production of industrial enzymes and other specialty chemicals; agricultural practices (e.g., biofertilizers); and break-down of chemical pollutants in the environment. These rules continue the interpretation of "new" microorganism first put forth by EPA in 1986. New microorganisms are those microorganisms formed by combining genetic material from organisms in different genera (intergeneric). A genus (pl. genera) is a level in a classification system based on the relatedness of organisms. EPA believes that intergeneric microorganisms have a sufficiently high likelihood of expressing new traits or new combinations of traits to be termed "new" and warrant review. Microorganisms that are not intergeneric would not be "new", and thus would not be subject to reporting under Section 5 of TSCA.


    Manufacturing cycle

    • Microbial Products of Biotechnology Clause

      Reporting RequirementsThese regulations create a reporting vehicle specifically designed for microorganisms, the Microbial Commercial Activity Notice (MCAN). Persons intending to use intergeneric microorganisms for commercial purposes in the United States would submit an MCAN to EPA at least 90 days before such use. EPA has 90 days to review the submission in order to determine whether the intergeneric microorganism may present an unreasonable risk to human health or the environment.The rules also address intergeneric microorganisms used in R&D for commercial purposes and creates a vehicle for reporting on testing of new microorganisms in the environment, a TSCA Experimental Release Application (TERA). A TERA would be submitted to EPA at least 60 days prior to initiating such field trials. The TERA is designed, in recognition of the needs of researchers, to provide a high measure of flexibility and a shorter review period (60 days). R&D for commercial purposes are those activities which are funded directly, in whole or in part, by a commercial entity regardless of who is actually conducting the research; or which will obtain for the researcher an immediate or eventual commercial advantage.

      ExemptionsCertain intergeneric microorganisms would be exempt from the requirement to submit a MCAN if the manufacturer meets criteria defining eligible microorganisms and specified use conditions. This exemption is most applicable to the manufacture of specialty and commodity chemicals, particularly industrial enzymes.Intergeneric microorganisms used at R&D in contained structures are exempt from EPA reporting requirements, if researchers maintain records demonstrating eligibility. Researchers are exempt from this record keeping requirement when the researcher or institution is in mandatory compliance with the National Institutes of Health (NIH) "Guidelines for Research InvolvingRecombinant DNA Molecules". Those researchers voluntarily following the NIH Guidelines can, by documenting their use of the NIH Guidelines, satisfy EPA's requirements for testing in contained structures. Alternatively, researchers can take the exemption by documenting that they meet eligibility criteria laid out by EPA in these rulemakings.Certain intergeneric microorganisms in R&D field testing are also exempt. Testing on ten acres or less involving Bradyrhizobium japonicum and Rhizobium meliloti is exempt when certain exemption criteria specified by these rules are met.


    Manufacturing cycle

    • Hot Issue: Nanotechnology Clause

      • Arizona State Clearinghouse:

        • http://nanotech.law.asu.edu/?rgn=cus

        • "There's going to be a lot of activity in this area, and it's very important for people to be able to keep up," he said. "Every country is in the same place, going through the same steps, starting to put into place regulatory programs. We need to promote harmonization among these countries, and one way to do that is to have access in other jurisdictions, and to see what other people are doing." http://www.nanowerk.com/news/newsid=13817.php

      • U.S. EPA


    Manufacturing cycle

    • Science Daily Clause

      • Health Risks Of Nanotechnology: How Nanoparticles Can Cause Lung Damage, And How The Damage Can Be Blocked

        • “ScienceDaily (June 11, 2009) — Scientists have identified for the first time a mechanism by which nanoparticles cause lung damage and have demonstrated that it can be combated by blocking the process involved, taking a step toward addressing the growing concerns over the safety of nanotechnology.”

        • http://www.sciencedaily.com/releases/2009/06/090610192431.htm


    Manufacturing cycle

    United Nations Environment Program Clause

    • United Nations Environment Program Summary: This report summarizes the largely unknown environmental impacts of nanotechnology, noting that at the time of publication, the United States and European Union were only spending an estimated $39 million on research on the effects of nanoparticles on human health and the environment. It notes that policy makers need to develop science-based frameworks to manage the uncertainties and risks associated with development of nanotechnologies. Although there have been several initiatives international initiatives undertaken, the report notes that more can be done at an international level to address transboundry issues involved in nanotechnologies. Put succinctly, more resources need to be directed at investigating the impacts of nanomaterials, minimizing health and environmental risks, and supporting sustainable development. http://nanotech.law.asu.edu/?rgn=e1


    Manufacturing cycle

    • TCSA Methodology: Clause

      • Risk Quantification: Factors: (P321) effect; magnitude of Exposure; Benefits and Availability of alternatives

        • RISK: Corrosion Proof Fittings - Asbestos Ban: TSCA is NOT zero risk

        • Risk Assessment – Resources for the Future critique; Methodology: (p328) Hazard Identification; Dose-response Assessment; Exposure Assessment; Risk Characterization. Value Judgments. 10-6

      • Least Burdensome Approach: Substitutes; “Reasonably ascertainable economic consequences”


    Manufacturing cycle

    • TCSA Review Of New Chemistry: Clause

      • Pre-Manufacture Notice: The burden/expense is on EPA to review the Pre-manufacture; P2 Methodology [1] and to require further documentation and testing or to limit market access by rule because the substance presents an, “unreasonable risk of injury to health or the environment” (Section 5). If EPA does nothing, the product may be marketed. Products Liability issues affect availability of data.

      • Test RULE Human Exposure Chemical Manufacturers Association v. USEPA (1988) EHA in manufacturing process

      • Regulatory Options: Specifications and restrictions

        [1] Pollution Prevention Framework (P2)

        “Screening Chemicals in the Absence of Data developed by: Office of Pollution Prevention and Toxics U.S. Environmental Protection Agency. The P2 Framework is an approach to risk screening that incorporates pollution prevention principles in the design and development of chemicals. The objective of the P2 Framework approach is to inform decision making at early stages of development and promote the selection and application of safer chemicals and processes. This approach is implemented by means of a set of computer models that predict risk-related properties of chemicals using structure activity relationships (SARs) and standard (default) scenarios. These models have been developed by EPA's Office of Pollution and Toxics (OPPT) to screen new chemicals in the absence of data. Annually EPA evaluates ~2,000 chemicals submitted as Pre-manufacture Notices (PMNs) by industry under the New Chemicals Program of the Toxic Substances Control Act (TSCA) of 1976. TSCA requires EPA evaluate the chemicals within 90 days, however the law does not require that the submitter conduct laboratory tests to evaluate potential hazard and risk of the chemicals.Operating under this time limitation and often a lack of data, EPA developed methods to quickly screen chemicals in the absence of data”


    Manufacturing cycle

    • Existing Chemicals Clause: May also be regulated by rule if the EPA has found an, “unreasonable risk,” in which case the EPA must adopt the “least burdensome restrictions” on manufacture and use of the product. EPA resources are Limited: Environmental Defense and the Chemical Manufacturers’ Association joint program to test the 3000 chemicals (ED/Chem Industry Association efforts).


    Manufacturing cycle

    “Old Chemicals”: Clause

    • 48,000 chemicals (REACH says 100,000)

    • No info on toxic affects of almost 80%;

      <20% tested for short-term effects

      <10% tested for long-term carcinogenic, reproductive or mutagenic effects

    • EPA tests no more than 50 “high priority chemicals” per year


    Manufacturing cycle

    “Almost everyone agrees we should know whether the chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, Toxic Ignorance. Environmental Defense has played a major role in a new initiative -- known as the High Production Volume (HPV) Chemical Challenge -- to make sure that quality information exists and is available to the public.

    “Under the initiative, more than 450 chemical companies have voluntarily signed up to review more than 2,200 high-volume chemicals that they produce, and to generate information where basic hazard data about the chemical don't exist. (If data aren't made available voluntarily, the Environmental Protection Agency is to mandate their development.)

    “Where information about a chemical doesn't already exist, additional testing may need to be conducted using laboratory rodents and laboratory fish. To minimize testing on animals (see below), extensive steps are being taken to use other kinds of approaches (such as structure-activity relationships, where data on one chemical is extrapolated to a similar one) and to speed up development of cell-based and other non-animal test methods.

    In March 2003, Environmental Defense released a detailed status report, Facing the Challenge, that examines the significant progress made to date on implementing this vital chemical assessment program and evaluates how well or poorly companies are doing in honoring their commitments. The report also identifies several disturbing trends, however, including the fact that there are more than 500 chemicals that are not yet sponsored, called orphan chemicals. Get more detailed information and search by company or by chemical by going to our new HPV Chemical Tracker.

    “Environmental Defense has also been supportive of the European Union's proposal for a major overhaul of its chemicals policy, called REACH (for Registration, Evaluation, and Authorization of CHemicals).” http://www.environmentaldefense.org/system/templates/page/subissue.cfm?subissue=14

    Environmental Defense Comment on TSCA:


    Manufacturing cycle

    • Inventory Update Rule chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, (68 Federal Reg. 848, January 7, 2003)

      • Threshold

      • Exposure- Related Data

      • Processing and Use Information

      • Exemptions

      • Confidentiality


    Manufacturing cycle

    • New Approaches chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    • EPA: Partnerships, such as http://www.epa.gov/opptintr/dfe/projects/projects.htm

    • Education/Cooperative Programs: http://www.epa.gov/opptintr/opptprg.htm


    Manufacturing cycle

    • European Union REACH Proposals chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Coverage: 30,000 chemicals (est.) produced in quantities of >1

      • Registration: European Chemical Agency

      • Information Requirements: Test Data more extensive than TSCA:

        • Safety Data Sheets (SDS) with Exposure Scenarios (EC): no threshold

        • Chemical Safety Reports (CSR) for chemicals >10 T

        • Flow Chart of Process:http://europa.eu.int/comm/enterprise/reach/docs/reach/flowchart-2004_04_04.pdf

      • http://europa.eu.int/comm/enterprise/reach/docs/reach/qa_reach_part2_2004_11_22_en.pdf


    Risk management insurance products liability
    Risk Management: Insurance & Products Liability chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    Review:

    • Products Liability = Strict Liability

      • Enterprise Liability for drugs, chemicals

      • Toxic Tort and Class Actions

    • Insurers’ Response:

      • Insurability: Review of Product, net worth

      • Exemptions: If exempt, the question is whether the manufacturer is bankrupt or otherwise judgment-proof?

      • Law Reform:

        • Products Liability Reform: National Legislation and Preemption (eg. Statute of Repose for aircraft)

        • Punitive and General Damage Limitations

        • Limitations on the right to sue: mandatory ADR

        • Attorneys Fees Restrictions


    Waste stream1
    Waste Stream chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    Manufacturing

    RELEASE = CERCLA

    Product/ Packaging

    Consumption/Use

    RCRA

    Air Emissions

    Business

    Consumer

    Disposal

    Solid Waste

    Solid Waste

    Recycling

    HazWaste

    Discharge to Surface Waters

    RCRA

    RELEASE = CERCLA

    LAND DISPOSAL


    Waste stream cont d1
    Waste Stream Cont’d chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    Solid Waste (RCRA)

    EPCRA

    Hazardous Waste

    Including Household Items

    Hazardous Material Trans. Act

    Landfills

    Incinerator

    RCRA

    Clean Air Act

    Treatment

    Storage

    Disposal

    Ocean

    Export

    Prohibited

    Incinerator

    Landfills

    Basel Convention

    Export


    Rcra definitions of solid waste
    RCRA Definitions of Solid Waste chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    • Sec. 6903. - Definitions As used in this chapter: (1) The term ''Administrator'' means the Administrator of the Environmental Protection Agency

    • (27) The term“solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material,including solid, liquid, semisolid, or contained gaseous materialresulting from industrial, commercial, mining, and agricultural operations, and from community activities,but does not includesolid or dissolved material in domesticsewage or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923)


    Manufacturing cycle

    • Hazardous Waste: Subtitle C chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Land BanOn Disposal Of Most Hazardous Waste Except Highly Regulated Facilities – Injection Wells

      • Key Concepts and Definitions

        • Characteristic v. Listed:

          • Ignitability (poses a fire hazard);

          • Corrosivity (has the ability to corrode standard containers or devolve toxic components of other wastes);

          • Reactivity (has the tendency to explode under normal conditions);

          • Toxicity (exhibits the presence of one or more specified toxic materials)

        • “Listed” by EPA: see Regulations


    Manufacturing cycle

    • Special Rules: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Mixture Rule - mixture of a hazardous waste and a solid waste is called a hazardous waste unless it qualifies for an exemption;

      • Derived-from Rulea waste that is generated from the treatment, storage, or disposal of a hazardous waste is also a hazardous waste, unless exempted;

      • Contained-in Rule,soil, groundwater, surface water, and debris contaminated with hazardous waste are also regulated under Subtitle C;

    • NOTE: Recycling eliminates the mixing of hazardous waste.


    Manufacturing cycle

    • Generator chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, - any person by site whose act or process produces hazardous waste:

      • Classification:Small Quantity Generators: of between100-1,000 kilograms of hazardous waste per month 1 kilogram of extreme hazardous waste per month (small generators allowed to store waste on site for 180 days or more if more than 200 miles from storage facility) and are governed by reduced requirements for planning for emergencies and training employees);Large Quantity Generatorsproduce more than 1000 kilograms of hazardous waste and 100 kilograms of extreme hazardous waste (may store waste for 90 days then becomes TSD); Conditionally Exempt Small quantify generator-Less than 100 kilograms per month and 0 extreme hazardous waste (may store indefinitely or until reach 100 kilograms then becomes small quantity generator.

      • Requirements:Manifest, Emergency Plans


    Manufacturing cycle

    • Transporter: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, HazMet Transportation Act (1975)

    • TSD Facilities: Treatment Storage Disposal Facilities

      Responsibilities:

      • Analyze wastes entering the facility to ensure identity as specified on the manifest;

      • Provide security at the site and undertake inspections, monitoring safety, security, operating, and structural equipment: trucks road worthy, stack device monitoring;

      • Train employees to handle emergencies and take precautions to prevent reactions between wastes;

      • Maintain emergency equipment and inform police, fire, and emergency response teams about the layout and hazards of the facility;

      • Written plan for responding to emergencies.


    Manufacturing cycle

    CERCLA chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

    “The majority of Superfund site clean-ups are conducted by private parties responsible for the contamination, under EPA control and pursuant to EPA enforcement actions. Historically those have represented about 70 percent of all clean-up activity. As of last year, EPA has secured more than $20 billion in cleanup commitments from polluters. “http://www.epa.gov/superfund/news/pr_110403.htm


    Manufacturing cycle

    • Definitions chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, : Broader definition of Release; exclusions, e.g.,Petroleumnot under CERCLA/RCRA: Regulated under Oil Pollution Act (after Exxon Valdez);

    • Release - Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing any quantity of hazardous substance.

    • Facility - Any site or area where a hazardous substances has come to be located (building, structure, institutions, wells, pipes, or equipment.

    • ResponseUnder superfund there are two categories of responses:

      • Removal action - Emergency Intervention to diminish the threat, serious risk;

      • Remedial Action - long term response.

    • Responsible Parties: a. Owners and operators of a vessel or facility. b. Any person who at the time of disposal of any hazardous substances owned or operated any facility at which such substances were disposed. c. Any person who by contract, agreement, or otherwise arranged for the transport of hazardous substances owned or possessed by such person to another’s vessel or facility. d. Any person who accepts or has accepted hazardous substances for transport once such hazardous substances causes the incurrence of response costs.

    • Person(any individual, firm, corporation, association, partnership, consortium, joint venture, commercial enmity, US Government, state, municipality, commission, political subdivision of a state, or interstate body.

    • National Priorities List - (NPL)ranks sites

    • National Contingency Plan - primary document generated in response to National Priorities List


    Manufacturing cycle

    • CERCLA Liability: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, Broad-Based

      • Characteristics:

        • Strict liability

        • Joint and several: Monsanto; Bush Administration takes opposite view

        • CERCLA is retroactive – NEPACCO

        • CERCLA provides two different theoriesfor a party to recover some or all of the costs incurred: Section 107 (a) permits a party to sue PRP’s; Section; 113 (f) permits an action among parties for a division of the payment (Recent Cases)


    Manufacturing cycle

    • “Recoverable Response Costs” Include: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Sampling/monitoring costs

      • Disposal of hazardous substances

      • Temporary Housing/Relocation (Love Canal and Times Beach)

      • Attorney/consultant fees 50% of Fund!

      • Not covered: psychological impact - W.R. Grace


    Manufacturing cycle

    • Administration: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Management issues, EPA attempts to convince PRP’s to clean site;

      • EPA compiles the Record of Decision (ROD)

      • EPA provides small parties a covenant not to sue, which releases them from joint and several liability: NC;

      • 3106 Cleanup Orders

      • State as defendant: NC Battery case (Highway 301 Bypass)


    Manufacturing cycle

    • Defenses to CERCLA liability: Law and Strategy chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report,

      • Act of God

      • An act of War

      • Act or omission of a third partyas long as defendant exercised due care and took precautions against actions of third party

      • Innocent Landowner Defense; In 1986 SARA amendments innocent landowner defense which is generally not available in commercial settings unless a Phase l has been done

      • Lenders Exemption: foreclosures; case law attempt


    Manufacturing cycle

    • Brownfields: chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, Small business liability relief and Brownfields Revitalization Act (P.L. 107-118)

      • Intent and Purpose

      • Process Rules: Federal; 68 Federal Regulation 10675 (March 6, 2003)

        • Liability: No Superfund sites or PRP’s

        • Tools: Deed Restrictions, Risk Management

      • State Administration

    • Legislative Issues:Consensus or Contentious? Joint and Several Liability


    Manufacturing cycle

    • About Brownfields chemicals in widespread use in the U.S. pose hazards to human health or to the environment. But, very surprisingly, the most basic hazard information about the most common chemicals used in industry and consumer products often can't be found in the public record, as pointed out in our groundbreaking 1997 report, Brownfields LawEPA 500-F-02-134[PDF (141K) 2 Pages]October 2002 Since its inception in 1995, EPA’s Brownfields Program has grown into a proven, results-oriented program that has changed the way contaminated property is perceived, addressed, and managed. EPA's Brownfields Program is designed to empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields. A brownfield is a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. It is estimated that there are more than 450,000 brownfields in the U.S. Cleaning up and reinvesting in these properties increases local tax bases, facilitates job growth, utilizes existing infrastructure, takes development pressures off of undeveloped, open land, and both improves and protects the environment. Initially, EPA provided small amounts of seed money to local governments that launched hundreds of two-year brownfield "pilot" projects. Through passage of the Small Business Liability Relief and Brownfields Revitalization Act, effective polices that EPA had developed over the years were passed into law. The Brownfields Law expanded EPA's assistance by providing new tools for the public and private sectors to promote sustainable brownfields cleanup and reuse.


    Manufacturing cycle

    • Brownfields grants continue to serve as the foundation of EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. Brownfields Assessment Grants provide funding for brownfield inventories, planning, environmental assessments, and community outreach. Brownfields Revolving Loan Fund Grants provide funding to capitalize loans that are used to clean up brownfields. Brownfields Job Training Grants provide environmental training for residents of brownfields communities. Brownfields Cleanup Grants provide direct funding for cleanup activities at certain properties with planned greenspace, recreational, or other nonprofit uses

    • EPA’s investment in the Brownfields Program has resulted in many accomplishments, including leveraging more than $6.5 billion in brownfields cleanup and redevelopment funding from the private and public sectors and creating approximately 25,000 new jobshttp://www.epa.gov/swerosps/bf/about.htm


    Epcra
    EPCRA EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • EPCRA* Community Right to KnowAct- plan developed in coordination with community groups for response to chemical emergencies. TRI available

      on EPA website and Toxmap (NIH). Also forms the basis for ED’s Scorecard


    Manufacturing cycle

    • ENDANGERED SPECIES ACT EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • Applies to all actions public or private

    • Who owns species? Who should live? Is extinction part of the process?

    • Historical Basis: 1916 National Park Service Act; 1966 and 1969 authorization to purchase habitat

    • Passed initially in 1973

    • Some see as “veto” over any action


    Manufacturing cycle

    TVA v. Hill (USSCt 1978): EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • snail darter and Tellico dam– first major interpretation:

    • (1) federally funded or authorized projects must “insure” species protection;

    • (2) project in “pipeline” is covered

    • “’…to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of and endangered species or result in the destruction or modification or habitat of such species….This language admits of no exception.”


    Manufacturing cycle

    GOALS OF USDA ESA PROGRAM EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. ¦

    • Preventing extinction.¦

    • Recovering species that are listed.¦

    • Making listing species unnecessary.

    • ¦ Providing quality customer service toFederal, State, and local governments and private individuals to assist them in conserving endangered species while meeting their social and economic objectives.

    • http://endangered.fws.gov/landowner/landown.pdf


    Manufacturing cycle

    Listing/Delisting: EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    Key provisions of section 4 Secretary of Interior shall determine if species is in danger or threatened of species [NOTE: FWS and EPA involved]. TEST:

    • a. Present or threatened distraction/modification of habitat/range

    • b. Over utilization for commercial, recreation, science, and education purposes

    • c. Disease or perdition may or may not have to do with human activity.

    • d. Inadequacy or existing regulatory mechanisms

    • e. Other natural/man made factors effecting its existence

  • Debate over listing/delisting

  • US Fish and Wildlife Service administers


  • Manufacturing cycle

    ESA Decisionmaking: EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • (1) Secretary of Interior,“solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species.” (Sec. 7)

    • (2) Review and Override:1978 Amendments (after TVA) created, “God Committee”; Exemptions:

    • (a) the federal project is of regional or national significance;

    • (b) there is no, “reasonable and prudent” alternative; and

    • (c) the proposed project clearly outweighs the alternatives.

    • NOTE: Tellico NOT overridden


    Manufacturing cycle

    • Section 7: Federal Agencies EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • “’…to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of and endangered species or result in the destruction or modification or habitat of such species, which is determined by the Secretary, after consultation as appropriate with the affected states’….This language admits of no exception.”


    Manufacturing cycle

    • Section 9: The “Takings” Prohibition EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • 16 U.S.C. Sec. 1532(19):

    • “The term ''take'' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

    • 50 CFR Sec. 17.3

      “Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife.Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

    • * Babbitt Vs. Sweet Home (225): Red Cockaded Woodpecker

    • *USSCt upheld Sec. 17.3 definition, on three grounds: (a) dictionary definition of harm to wildlife, “harm” could be indirect as well as “direct”, (b) furthers purposes of Sec. 2 of the Act, “ecosystems upon which endangered species and threatened specides depend may be conserved.” (Sec. 2), and (c) Congress in 1982 requires permits for, “incidental taking”

    • QUERY:Would a more limited interpretation also have been found, “reasonable”?


    Manufacturing cycle

    • “The EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. Endangered Species Act, with some exceptions, prohibits activities affecting threatened and endangered species unless authorized by a permit from the U.S. Fish and Wildlife Service (Service) or the National Oceanic and Atmospheric Administrations—Fisheries. “

    • “Your proposed activity may also require a state permit. You should contact your state wildlife agencies for additional information. Getting a Service permit is contingent upon obtaining any required state permit.”

      “Types of permits

    • Permits for native endangered or threatened species, issued by the Endangered Species program, are of three basic types:

    • Enhancement Of Survival Permits, associated with Safe Harbor agreements and Candidate Conservation Agreements with Assurances,

    • Recovery And Interstate Commerce Permits, associated with activities such as captive breeding and research to further the recovery of a species, and

    • Incidental Take Permits, associated with Habitat Conservation plans. “

    • http://endangered.fws.gov/permits/index.html


    Manufacturing cycle

    • COOPERATIVE PROGRAMS WITH LANDOWNERS: EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    http://endangered.fws.gov/landowner/landown.pdf


    Manufacturing cycle

    • Enhancing Wildlife EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. “Before entering into a Safe Harbor Agreement, we must make a finding that the covered endangered or threatened species will receive a “net conservation benefit” from the Agreement’s management actions. Examples of such benefits include: ¦

      • reduction of habitat fragmentation;

      • maintenance, restoration, or enhancement of existing habitats;

      • increase in habitat connectivity;

      • maintenance or increase of population numbers or distribution;

      • reduction of the effects of catastrophic events;

      • establishment of buffers for protected areas; and ¦

      • areas to test and develop new management

    • http://endangered.fws.gov/recovery/harborqa.pdf


    Partnerships save species http www backfromthebrink org inthespotlight cfm subnav meetthelandowners
    PARTNERSHIPS SAVE SPECIES EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. http://www.backfromthebrink.org/inthespotlight.cfm?subnav=meetthelandowners


    International topics

    International Topics EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.


    Manufacturing cycle

    • I. BASICS EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • A. No Overall Law, No World Government and No World Court

    • B. International Law Evolved From Need To Stabilize Trade

    • *Manifest System (RCRA!);

    • Currency; Financing of Goods, Contracts;Conflict Resolution/ADR/Conflict of Laws

    • * Trade Agreements : GATT (WTO) , NAFTA, CAFTA


    Manufacturing cycle

    • C. EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. Treaties Based On Politics – Foreign Policy of Nation-State: e.g., Sino-US relations on Taiwan, ABM Treaty

    • 1. Map changed since 1989 (Berlin Wall - Russia) and will change regularly;. Many governments don’t exist anymore; hard to fine for hazardous waste.

    • 2. Treaties Must be analyzed for Enforcement Mechanisms: self-enforcing (formulae, etc), or dispute resolution/enforcement procedures because politics will regularly override

    • 3. Even UN and World Court decisions may be disregarded (and regularly are)


    Manufacturing cycle

    • D. NGO’s Play Important Roles EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • 1. Technical: Environmental Defense and the Kyoto Protocol

    • 2. Political – Raising awareness internationally and domestically, e.g., Greenpeace, Sierra Club lobbying


    Manufacturing cycle

    • II. SOURCES OF INTERNATIONAL LAW EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • A.     Customary international law:general principles every one accepts, e.g. the Trail SmelterCases - Trans Boundary Pollution-”polluter pays” concept

    • B. Resolutions and Declarations Of International Organizations

    • * UN, WTO, 1972 Stockholm Conference on the environment (First Earth Summit).

    • *World Health Organization,

    • *EEU ban on genetically altered food,

    • *Economic weapons (e.g. sanctions or tariffs) most effective must have voluntary support from other countries or NGO’s

    • *Ceres Principles and ISO 14000


    Manufacturing cycle

    • C. International Treaties and Conventions EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • 1   Stockholm Conference 1972on the environment first earth summit, feel good conference but didn’t accomplish much except sustainable development UN teaches sustainable development

    • 2.   Montreal Protocol 1989-addresses ozone layer- freeze consumption levels at 80’s Levels cut consumption in half by 1999 (freon produced and sold on the black market)

    • 3. Vienna Accord:Safeguarding Resources from Transboundary Pollution

    • 4. Basel Convention-(barge of hazardous waste spent a year trying to find a place to dump) * Requires government to be informed and receive consent for hazardous waste.

    • 5.International Convention on the Law of the Sea

    • 6. Law of Outer Space: Outer Space Ads; Private Spaceflite;

      Space Junk


    Manufacturing cycle

    • 7. * EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. 1992 Earth SummitUNCED another feel good conference

    • a. UN Convention On Climate Change - Kyoto

    • b. Rio Declaration (Appendix C p 434) Says people entitiled to safe clean environment

    • c. Statement Of Forest Principles

    • d. Agenda 21

    • * None had any effect on international law nothing in them for enforcement

    • 8. Maastricht and the EEU: Banon Genetically Engineered, BGH


    Manufacturing cycle

    • III. EMERGING ISSUES: EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • A. Overarching Issue: What Is Nation’s Foreign Policy?

    • B. Who pays for Transboundary Pollution? Chernobyl, Rhine, US/Canada

      C. The Maquiladora phenomenon


    Manufacturing cycle

    Basic Principles EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    Polluter Pays: Recent interpretation: Principle 16 of the Rio Declaration: “ Internalization of environmental costs…with due regard to the public interest and without distorting international trade and investment.” ??

    Precautionary Principle: “…when serious environmental harm is threatened, positive action to protect the environment should not be delayed until irrefutable scientific proof of harm is available”

    Sustainable Development: “ 1987 Brundtland Committee Report: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”


    Manufacturing cycle

    • C. EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. How will Trade Treaties Affect Domestic Environmental (and Labor)Laws?Montreal Meeting: Pledge to Trade as Method to Raise All Boats--- perhaps an apt analogy given the warnings of Global Warming which the US is playing

    •   1. World Trade Organization*Formed as Dispute Resolution Organization

    • Demonstrations (eg, Seattle, FLA) involve:

    • a. Environment- WTO change environmental laws for other countries

    • b. Labor- Worker Safety including Child Labor

      • Tuna-Dolphin:Environmental Policies of ProducerCountries v. Environmental Policies of the Consumer Nation: the Substance Itself, e.g., Ban of CFC’s

        clearly permissible, but ban of CFC’s produced in factories that emit in excess of certain limits is SUSPECT

        *US Steel tariffs held unlawful: 2003

        Mexican Trucks?

  • *Maquiladora

    2. World Bank ($20 bil annually)–

    3. Global Environment Facility - $5 bil


  • Manufacturing cycle

    • D. EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. How Will Existing Treaties Play Out? Nuclear Test Ban (ABM) to Montreal Protocol, Iran

    • 1. Kyoto Protocol: Case Study -

    • -Last Year the G8 pledged ratification

    • -The Bush campaign pledged to move forward with Kyoto

    • -The Bush administration says, “PASS”

    • *Features: Emissions Trading (sub-issues: carbon sinks)

    • *US v. EEU; Target Reduction: -7% below 1990 levels by 2008-2012.

    • *Developing Nations not subject to reduction

    • quotas (including India and China).

    • *Emissions Trading Issues: Carbon Sinks and Credits


    Manufacturing cycle

    • E. How will Private Sector Efforts Play Out? EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

    • 1. Industrial: ISO 14000

    • 2. Consumer:Databases, Consumer Product Packaging,Labeling, Product Regulation (see Disposable Beer Cans v. Denmark); eco-taxes; product limitations/bans (OK if neutral)

    • 3. Cooperative:NGO place at the international table; Corporate Alliances, eg, BP, Shell, Dupont, Suncor, Ontario Power, Alcan re: global warming

    • 4. Emissions Trading: carbon sinks, credits

    • 5. Land Conservation: debt for land swaps

    • 6. The Ceres Principles

    • 7. Environmental Audits: multi-national corporations


    Land use

    Land Use EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.


    Manufacturing cycle

    • Land Use and the Development Process EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. www.co.new-hanover.nc.us/PLN/menu.htm, www.silcom.com/~sbcplan/

    • a. Key Concepts:

    • (1) Local Government Power;

    • (2) Wide Latitude Of Govt (San Marino, City of Industry);

    • (3) Significant Economic issues: tax base and jobs. Land owners would rather deal with local government not state/federal government;

    • (4) Election Process: Candidates and Ballot Measures (eg, Wrightsville Beach, Santa Barbara) initiative/referendum


    Manufacturing cycle

    • Definitions: EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities.

      • Grandfathering,

      • Non-conforming

        (a) Structure

        (b) Use

        (3) Special use:

        (4) Overlay: Wrightsville Avenue


    Manufacturing cycle

    • c. EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. Planning Process:http://www.nhcgov.com/PLN/PLNsteercomm.asp

    • California Environmental Documents.htm

      (1) General Plans: State and Local Option

      Contents: Elements: Land use- Map; Circulation; Economic; Stormwater Runoff plan

      (2) SpecialtyPlans:Geographic/Use/Character (e.g., Historic, Open Space)

      (3) Consistency: Does plan have to match zoning ordinances? (NC no/ CA yes)

      (4) Current Problem: (NCCF State of the Coast (2002): “As bad as the planning process has been, the implementation has been worse….”)


    Manufacturing cycle

    • c EPA’s Brownfields Program. These grants support revitalization efforts by funding environmental assessment, cleanup, and job training activities. . Zoning- Process by which use of land in many dimensions can be regulated: Political Board assigns Zones through Zoning Map

      (1) Key Terms: Permitted - Special Uses – Overlay Zones –Coastal- Development Lines.

      (2) Purposes:Table of Uses, Area and Height Table

      (a) Use, e.g., blacksmith or a funeral home?

      (b) Physical Characteristics: Height- How tall; Bulk- How massive/Footprint; Set back- How far from the boundaries of the property?

    • (c) Density: E.g., units per acre: Current raging debate in environmental community: Mixed-use Ordinances, e.g. Mayfaire

    • (d) Economics

    • (e) Traffic

    • (f) Aesthetics

    • (g) Historical Preservation: Penn Central

    • (h) Environmental: Indirect air sources; wetlands;

    • secondary impacts, open space


    Manufacturing cycle

    http://www.municode.com/resources/gateway.asp?sid=33&pid=14101http://www.municode.com/resources/gateway.asp?sid=33&pid=14101


    Manufacturing cycle

    • d. ZONING-http://www.municode.com/resources/gateway.asp?sid=33&pid=14101 …continued…

    • (3) Specialized Situations:

    • * Subdivision Regulations- response to fraud

    • * Subdivision- parcel of land divided into two or more units (Definition; Cumulative?)

      • * Requirements to look at when making a subdivision Roads, Drainage, compaction (role of civil engineer)

    • * Condominiums and PUD’s

    • *Mixed-Use Zones


    Manufacturing cycle

    • (4) Adjustmenthttp://www.municode.com/resources/gateway.asp?sid=33&pid=14101

    • a) Variance- exception to restrictions

    • b) Special use permits- allows layer of discussion by local government (vote of planning commission)(may be restrictions)

    • c) Seek rezoning- spot zoning (not legal in most cases)(change just one parcel)

    • d) Brown fields- contaminated areas

    • e) Non Conforming Situations (use, physical characteristics)

    • 1. Time limit(non conforming use can be restricted by time)

    • 2. Can not expand non conforming use

    • (5) Enforcement: Zoning Enforcement Process (informal and formal)


    Manufacturing cycle

    • II. ADDITIONAL LAYERS OF REGULATIONhttp://www.municode.com/resources/gateway.asp?sid=33&pid=14101

    • A. Local: Building, Fire, Health Department, etc.

    • B. State: Coastal/Wetlands/Coastal Non-Point

    • *Wetlands: States often follow federal model: Post Tulloch

    • www.envhelp.org/html/permitsinfo.asp?permitid=128

    • * Coastal* DCM (division of coastal management)http://www.countyofsb.org/plandev/devrev/default.htm

    • www.ceres.ca.gov/planning/counties/Santa_Barbara/plans.html

    • *Example: Vegetation Line Regulation Change: Small Lots


    Manufacturing cycle

    • C. http://www.municode.com/resources/gateway.asp?sid=33&pid=14101Federal

      • *Wetlands Regulation: RULES Section 404 Clean Water Act

      • 1) Model regulation/ permits- Nationwide General Permit2) No net loss of wet lands- Replacement

  • www.usace.army.mil/inet/functions/cw/cecwo/reg/oceover.htm

  • www.usace.army.mil/inet/functions/cw/cecwo/reg/nwpcond.htm

    • 3) Jurisdiction: Corps of Engineers: General and Spec Permits

    • *US v. Riverside Bayview Homes (takings still possible)

  • *Solid Waste Agency of Northern Cook County v. USACE

  • *Tulloch: Between 1-3 acres can be drained for development* State wetlands under same political regulation

  • * When Corps of engineers law thrown out (contractor take advantage and build ), now EPA issues fines and restoration orders

  • *Isolated: SWANCC v. USACE


  • Manufacturing cycle

    • SMART GROWTH:http://www.municode.com/resources/gateway.asp?sid=33&pid=14101

    http://www.smartgrowth.org/default.asp


    Manufacturing cycle

    JUDICIAL REVIEW:http://www.municode.com/resources/gateway.asp?sid=33&pid=14101

    • Constitutionality: Euclid v. Ambler Realty * Reasonable zoning classifications are an economic regulation that will be upheld (presumed constitutional unless. “Arbitrary and Unreasonable”

    • Examples:

    • 1. Limits of Zoning: ordinance based on “public sentiment”

    • 2. No Zoning Without Planning: CA, not NC!

    • 3. Procedural Issues: Delay and Political Shift

    • 4. “Spot Zoning”

    • 5. Regulatory Takings: Question arises if economic regulation eliminates ALL economic use, is it an unconstitutional Taking?

    • Yes and No!


    Manufacturing cycle

    • II. http://www.municode.com/resources/gateway.asp?sid=33&pid=14101TOTAL REGULATORY TAKINGS: LUCAS AND PROGENY

    • A. Origin of Law: Mahon v. Penn Coal

    • B. First Lutheran, Nollan and Lucas:

    • *Total Taking – Except Background Principles of Property Law

    • *Temporary Taking

    • * Nexus between Extraction and Regulatory Scheme (Dolan)

    • *Procedural Issues: Jury (City of Monterey)

    • C. Other Examples

    • Seawalls in Oregon: Good and the Public Trust

    • Temporary Takings: Current Term

    •   TDR’s: Tahoe RPA

    •   Standing to Challenge: City of Monterey

    • D. Legislative Response: Property Rights Legislation

    • *Temp takings

    • * Partial Takings

    • *Procedural Access