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CONTENTS Introduction CHAPTER ONE: THE ORIGIN AND NATURE OF EVIRONMENTAL CONTAMINATION CHAPTER TWO: THE NATURE AND ASSESSMENT OF THE HARM CHAPTER THREE: ECONOMICS AND THE ENVIRONMENT CHAPTER FOUR: ADDRESSING POLLUTION THROUGH THE TORT SYSTEM CHAPTER FIVE: ADMINISTRATIVE LAW: THE ROLES OF CONGRESS, THE PRESIDENT, THE AGENCIES, AND THE COURTS IN SHAPING ENVIRONMENTAL POLICY CHAPTER SIX: LIMITING EXPOSURE TO OUTDOOR AIR CONTAMINANTS: THE CLEAN AIR ACT PART ONE: STATIONARY SOURCES PART TWO: MOBILE SOURCES CHAPTER SEVEN: PROTECTION OF SURFACE WATERS, WETLANDS, AND DRINKING WATER: THE CLEAN WATER ACT AND SAFE DRINKING WATER ACT CHAPTER EIGHT: REGULATION OF HAZARDOUS WASTES: RCRA, CERCLA, AND HAZARDOUS WASTE FACILITY SITING CHAPTER NINE: THE RIGHT TO KNOW: MANDATORY DISCLOSURE OF INFORMATION REGARDING CHEMICAL RISKS CHAPTER TEN: ENFORCEMENT: ENCOURAGING COMPLIANCE WITH ENVIRONMENTAL LAWS CHAPTER ELEVEN: ALTERNATIVE FORMS OF GOVERNMENT INTERVENTION TO PROMOTE POLLUTION REDUCTION CHAPTER TWELVE: THE DESIGN AND IMPLEMENTATION OF POLICIES TO PROMOTE POLLUTION PREVENTION AND PRIMARY ACCIDENT PREVENTION CHAPTER THIRTEEN: EPILOGUE - BEYOND POLLUTION CONTROL AND PREVENTION: SUSTAINABLE DEVELOPMENT CHAPTER ONE: ORIGIN AND NATURE OF ENVIRONMENTAL POLLUTION CONTENTS 1. The Origin of Pollution and Accidental Releases of Chemicals into the Environment 2. The Causes of Pollution and Accidental Releases Increases In the Production and Use of Chemicals, and Changes in the Nature of Chemical Contamination Public Goods, the Tragedy of the Commons, and Free-rider Problems Pollution as an Economic Problem Limits to Growth 3. Pollution and Accident Control and Mitigation 4. Pollution and Accident Prevention 5. The Focus of Traditional Environmental Law 6. Beyond Pollution and Accident Control and Prevention: Sustainable Production and Products CHAPTER TWO: NATURE AND ASSESSMENT OF THE HARM CONTENTS A. LIFE CYCLE ANALYSIS AND THE BIOLOGICAL IMPACT PATHWAY B. ENVIRONMENTAL/ECOSYSTEM DEGRADATION C. HUMAN HEALTH RISKS 1. Classical Categorization: The Dose Makes the Poison 2. Multi-stage Disease Processes: The Dose Plus the Host Makes the Harm D. THE BASICS (AND LIMITATIONS) OF RISK ASSESSMENT E. SCIENTIFIC UNCERTAINTY, VALUES, AND IMPLICATIONS FOR POLICY: CAN A ¿SAFE¿ LEVEL OF EXPOSURE BE UNIQUELY DETERMINED? CHAPTER THREE: ECONOMICS AND THE ENVIRONMENT CONTENTS A. INTRODUCTION B. THE ECONOMIC VALUE OF ENVIRONMENTAL AMENITIES, RESOURCES, AND QUALITY C. MARKET IMPERFECTIONS AS THE BASIS FOR GOVERNMENT INTERVENTION 1. Externalities 2. Imperfect Information 3. Imperfect Competition 4. Market-related Inequities and Injustices D. ECONOMIC EFFICIENCY AND THE TECHOLOGICAL DYNAMIC E. THE USE OF COST-BENEFIT ANALYSIS AS MEANS OF EVALUATING AND DESIGNING OPTIONS FOR ENVIRONMENTAL REGULATION 1. Problems in Estimating Environmental Policy Benefits a. Valuing Health-Related Benefits b. Valuing Environmental Resources and Amenities 2. Problems in Estimating Environmental Policy Costs: Static vs. Dynamic Assumptions About Technological Responses 3. Problems in Selecting the Discount Rate 4. Problems of Equity and Ethics 5. Misuses and Abuses of Cost-Benefit Analysis 6. Conclusions F. PRIORITIZING ENVIRONMENTAL PROBLEMS WITHIN AND AMONG DIFFERENT PROBLEM AREAS G. LAW AND ECONOMICS AS COMPETING FRAMEWORKS FOR ENVIRONMENTAL DECISION MAKING: THE POLLUTER PAYS PRINCIPLE, TRADE-OFF ANALYSIS, AND THE PRECAUTIONARY PRINCIPLE 1. The Polluter Pays Principle 2. Trade-off Analysis and the Precautionary Principle H. SCHOOLS OF ECONOMIC DISCOURSE References CHAPTER FOUR: ADDRESSING POLLUTION THROUGH THE TORT SYSTEM CONTENTS A. INTRODUCTION 1. The Common Law: Court-Made Law (and Policy) 2. The Relationship Between the Common Law and Statutory Law B. THE TORT SYSTEM 1. The Basic Functions of Tort Law 2. The Available Remedies a. Monetary damages b. Injunctive relief 3. The Central Elements of a Tort Claim a. In general b. Tort suits against the government C. THE FOUR CLASSIC ENVIRONMENTAL TORT CLAIMS 1. Negligence 2. Nuisance a. Private nuisance b. Public nuisance 3. Trespass 4. Strict Liability for Abnormally Dangerous Activity D. PRODUCTS LIABILITY CLAIMS E. THE TECHNOLOGY-FORCING POTENTIAL OF TORT LAW F. DRAWBACKS TO USING THE TORT SYSTEM AS A POLLUTION REDUCTION TOOL 1. The Financial Investment Necessary to Mount a Credible Case 2. The Difficulty in Moving Beyond Current Industry Practice 3. The Difficulty in Proving Proximate Causation 4. The Difficulty in Presenting ¿Novel¿ Scientific or Engineering Testimony 5. The Lengthy Delay Between Causation and Remedy 6. The Difficulty in Securing an Injunction Against Ongoing Industrial Activity CHAPTER FIVE: ADMINISTRATIVE LAW: THE ROLES OF CONGRESS, THE PRESIDENT, THE AGENCIES, AND THE COURTS IN SHAPING ENVIRONMENTAL POLICY CONTENTS A. QUESTIONS TO CONSIDER WHEN ANALYZING A REGULATORY FRAMEWORK B. THE CONSTITUTIONAL BASIS FOR HEALTH, SAFETY, AND ENVIRONMENTAL REGULATION 1. Direction from the Legislative Branch a. The substantive statutory mandate b. The Commerce Clause c. The delegation doctrine d. The procedural mandate e. Interpreting the statutory mandate f. Statutory amendment and informal controls g. Federal Regulatory Authority and the States 2. Direction from the Executive Branch 3. Direction from the Judicial Branch C. ADMINISTRATIVE RULEMAKING 1. The Distinction between Rulemaking, Adjudication, and Enforcement 2. A General Look at Rulemaking under the Administrative Procedure Act 3. Negotiated Rulemaking 4. Strict Liability for Abnormally Dangerous Activity D. CITIZEN AND CORPORATE ACCESS TO THE ADMINISTRATIVE PROCESS 1. Initiation of Rulemaking 2. Access to Agency Proceedings and Records 3. Access to Advisory Committees 4. Access to the Courts 5. Monetary Limitations on the Availability of Review 6. Bypassing the Agency: Citizen Enforcement through the Private Right of Action E. THE ROLE OF THE COURTS IN REVIEWING AGENCY DECISIONMAKING 1. Five Judicial Limitations on Agency Authority 2. The Scope of Factual Review 3. Judicial Review of Agency Decisions Not to Act F. TWO GENERAL ENVIRONMENTAL MANDATES TO AGENCIES: THE NATIONAL ENVIRONMENTAL POLICY ACT AND THE ENDANGERED SPECIES ACT 1. The National Environmental Policy Act a. The Environmental Impact Statement b. The Council on Environmental Quality 2. The Endangered Species Act CHAPTER SIX: LIMITING EXPOSURE TO OUTDOOR AIR CONTAMINANTS: THE CLEAN AIR ACT. PART ONE: REGULATING STATIONARY SOURCES Contents A. Origins and Overview of the Clean Air Act 1. Origins 2. Structure and Overview of the Clean Air Act B. The National Ambient Air Quality Standards for ¿Criteria¿ Pollutants C. State Implementation Plans (SIPs) D. Additional Regulation of Stationary Sources 1. Section 111 Standards a. New Source Performance Standards i. In general ii. What is a ¿new¿ or ¿major modified¿ source? iii. A Technological Basis (A Specification Standard) as an Alternative Means of Emission Limitations b. Designated Pollutants 2. Additional Emission Standards Designed to Achieve or Maintain Ambient Air Quality Standards a. Non-Attainment Policy i. In general ii. Specific Requirements for Ozone, CO, and Particulates b. Non-Degradation Policy i. In general ii. Specific Requirements c. The applicability of the bubble policy in non-attainment and PSD areas 3. Visibility Protections 4. Acid Rain Controls and the SO2 Allowance Trading System 5. Emission Standards for Hazardous Air Pollutants a. Section 112 before the 1990 Amendments b. Section 112 after 1990 6. Enforcement and the Title VI Operating Permits CHAPTER SIX: PART TWO: REGULATING MOBILE SOURCES CONTENTS E. REGULATION OF MOBILE SOURCES 1. Our Ongoing Love Affair With Automotive Transportation 2. The Downside of Automobility 3. The Emergence of Air Pollution Legislation for Mobile Sources 4. The 1970 Clean Air Act Amendments a. Emission Standards For New Motor Vehicles i. Limits Set By Congress ii. Additional Limits Set By EPA iii. Federal Preemption (and the California Exception) b. Regulation of Fuel Content¿Product Ban as Technology-Forcing c. Transportation Controls and Inspection Maintenance Programs 5. The Clean Air Act Amendments of 1990 a. Tier I Standards b. Tier II Standards¿Uniform standards for Light-Duty Cars, Trucks, and SUVs c. New Measures Regulating Gasoline d. Encouraging the Use of Alternative Fuels e. Diesel Sulfur, Heavy-Duty Engine, Heavy-Duty Vehicle Rule f. Non-Road Engine Emissions Rule g. The Air Toxics Program 6. Regulation of Fuel Efficiency 7. Regulation of C02 Emissions 8. Beyond the Traditional Internal Combustion Engine a. The New Breed of ICEs b. Electric-Drive Vehicles 9. The Legacy of the Clean Air Act CHAPTER SEVEN: PROTECTION OF SURFACE WATERS, WETLANDS, AND DRINKING WATER: THE CLEAN WATER ACT AND THE SAFE DRINKING WATER ACT CONTENTS A. THE CLEAN WATER ACT: REGULATION OF POINT SOURCE DISCHARGES OF POLLUTANTS TO SURFACE WATERS, WETLANDS, AND SEWAGE TREATMENT PLANTS 1. The History and Development of the Federal Regulations a. The 1972 Federal Water Pollution Control Act Amendments i. Setting the National Goals ii. The Absolute Prohibition Against Nonconforming Discharges iii. Broad Definition of Navigable Waters iv. The National Pollutant Discharge Elimination System (NPDES) Permit v. National Technology-Based Effluent Limits vi. Health-Based Effluent Limits for Toxic Pollutants, Set On a Pollutant-By-Pollutant Basis vii. Technology-Based Effluent Limitations, and Public Financing, for Public Sewage Treatment Plants viii. Federal Pretreatment Standards for Discharges Into Municipal Sewage Treatment Plants ix. Ambient Water Quality Standards, Set by the States x. Data Generation and Data Disclosure xi. A Strong Emphasis On Public Participation xii. State Involvement in Implementation and Enforcement b. The 1977 Clean Water Act Amendments i. The Division of Pollutants Into Three Categories ii. Technology-Based Effluent Limits For Toxic Pollutants iii. Relaxation of Deadlines c. The 1987 Water Quality Act Amendments i. A Renewed Emphasis on Water Quality-Based Limitations For Toxic Pollutants ii. An Increased Emphasis On Penalties iii. Relaxation of Deadlines 2. The Technology-Based Effluent Limitations in Detail a. First-Tier Limitations for Existing Sources: BPT b. Second-Tier Limitations for Existing Sources: BCT and BAT c. Limitations for New Sources: BADT d. Limitations for Public Sewage Treatment Plants 3. Water Quality-Based Effluent Limitations (a) The State and Federal Roles in Setting and Revising Ambient Water Quality Standards b. The Mechanics of Establishing Water Quality Standards c. Translating Ambient Standards Into Effluent Limitations i. The Total Maximum Daily Load ii. The Section 304(l) Program For ¿Toxic Hot Spots¿ iii. The Mechanics of Establishing Water Quality-Based Effluent Limitations d. Whole Effluent Toxicity Standards 4. The Permitting Process in Detail 5. Regulation of Stormwater Discharges 6. Limitations on Discharges to Public Sewage Treatment Plants 7. Regulation of Toxic Chemicals in Sewage Sludge B. THE CLEAN WATER ACT: PROTECTION OF SURFACE WATERS AND WETLANDS FROM NONPOINT SOURCE POLLUTION C. THE CLEAN WATER ACT: PROTECTION OF SURFACE WATERS AND WETLANDS FROM THE DISCHARGE OF DREDGED AND FILL MATERIAL 1. The Section 404 Permit Program 2. The Application of the Section 404 Program to Wetlands D. THE PROTECTION OF PUBLIC WATER SYSTEMS: THE SAFE DRINKING WATER ACT 1. The City of New Orleans and the Origins of the Safe Drinking Water Act 2. The 1974 Act: Establishing the Framework a. Coverage: Public Water Systems b. Federal Standards: Primary and Secondary Drinking Water Standards c. Notification to Consumers d. State Implementation e. Regulation of Underground Injection Wells 3. The 1986 Amendments: Mandating the Maximum Contaminant Levels 4. The 1996 Amendments: Scaling Back CHAPTER EIGHT: REGULATION OF HAZARDOUS WASTES: RCRA, CERCLA, AND HAZARDOUS WASTE FACILITY SITING CONTENTS A. OVERVIEW 1. Nowhere to Hide: The Relationship Between Hazardous Waste Regulation and Pollution Prevention 2. Activist Suburbs: The Revitalization of the Environmental Movement and the Resulting Difficulty in Siting Hazardous Waste Treatment, Storage, and Disposal Facilities 3. The ¿Breakthrough¿ That Wasn¿t: Constitutional Limitations on Local Control of Hazardous Waste Shipment and Treatment B. THE RESOURCE CONSERVATION AND RECOVERY ACT (SOLID WASTE DISPOSAL ACT) 1. The History and Development of the Federal Regulations 2. The Broad Impact: A Federal ¿Tax¿ on Hazardous Waste Generation 3. The Regulated Materials: Solid and Hazardous Waste a. Solid Waste b. Hazardous Waste i. Characteristic Waste ii. Criteria (Listed) Waste iii. RCRA Definition Waste iv. State Definition Waste v. Ash Generated By Municipal Solid Waste Incinerators 4. The ¿Cradle to Grave¿ System for Hazardous Waste a. Notification and Identification b. The Manifest System c. The Permit Program d. Performance and Monitoring Standards 5. The ¿Land Ban¿ And The Hazardous Waste Treatment Standards a. A Shift in the Burden of Proof b. The BDAT Standards 6. Standards for Hazardous Waste Incinerators 7. Corrective Action and the CAMU 8. Underground Storage Tanks 9. The Regulation of Other Solid Waste 10. The Citizen Suit and Imminent and Substantial Endangerment Provisions C. THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (THE SUPERFUND LAW) 1. Looking Both Ways: The Policy Impact of CERCLA 2. The President¿s Authority to Take, Order, or Contract for the Performance of Cleanup Action under CERCLA a. Section 104 b. Section 106 3. Standardization and Prioritization a. The National Contingency Plan b. The National Priorities List 4. The Nature of Response Actions under CERCLA a. Removal Action b. Remedial Action i. The Steps of a Remedial Action ii. Cleanup Standards 5. The Hazardous Substance Superfund 6. The Liability of Responsible Parties to Pay the Cost of Response Action a. Who Is Liable? b. Defenses to Liability c. The Nature of the Liability 7. The Special Program for Remediating Federal Facilities 8. The Search for Innovative Cleanup Technologies 9. The Liability of Responsible Parties to Pay for Damages to Natural Resources 10. The Citizen¿s Role 11. Money Damages for Personal Injury and Damage to Private Property CHAPTER NINE: THE RIGHT TO KNOW: MANDATORY DISCLOSURE OF INFORMATION REGARDING CHEMICAL RISKS CONTENTS A. INTRODUCTION B. WORKER RIGHT TO KNOW C. COMMUNITY RIGHT TO KNOW 1. EPCRA Reporting Generally 2. Chemical Release Reporting Under the TRI Program D. COMMUNITY RIGHT TO KNOW AS A SPUR TO RISK REDUCTION CHAPTER TEN: ENCOURAGING COMPLIANCE WITH ENVIRONMENTAL STATUTES CONTENTS A. OVERVIEW B. THEORIES OF ENFORCEMENT: COMPLIANCE, DETERENCE, AND RESTITUTION C. THE ENFORCER AND THEIR ROLES D. ENFORCEMENT IN PRACTICE: THE PROVERBIAL NUTS AND BOLTS 1. Monitoring, Reporting, and Recordkeeping Requirements 2. Inspections 3. Injunctions 4. Penalties 5. Settlements 6. Enforcement Actions Against the Government E. THE SPECIAL RULES GOVERNING CITIZEN ENFORCEMENT 1. Article III Principles: Standing and Mootness 2. The Relationship Between Citizen Enforcement and Government Oversight CHAPTER ELEVEN: ALTERNATIVE FORMS OF GOVERNMENT INTERVENTION TO PROMOTE POLLUTION REDUCTION CONTENTS A. INTRODUCTION B. DIRECT CONTROLS C. INDIRECT CONTROLS I: ¿NEGATIVE¿ INCENTIVES 1. Emissions Charges 2. Tradable Emission Permits a. Types of Permit Systems b. Initial Allocation of Permits c. Other Factors That Influence Trading d. History, Evidence, and Analysis of Effectiveness of Emissions Trading D. INDIRECT CONTROLS II: ¿POSITIVE¿ INCENTIVES 1. Economic Subsidies 2. The Coordination of Tax Policy and Environmental Policy 3. Other ¿Positive¿ Instruments: Information Sharing, Technical Assistance, and Government Purchasing Practices E. LIABILITY STANDARDS F. ¿VOLUNTARY¿ INITIATIVES AND NEGOTIATION-BASED APPROACHES 1. Overview of Voluntary Initiatives 2. Public Voluntary Programs: the EPA Experience 3. Unilateral Commitments a. Self-Enforcement, Environmental Management Systems, and Industry Codes b. Industrial Ecology as a Special Example of Unilateral Commitments 4. Negotiated Outcomes REFERENCES Figures 9-1 and 9-2 Figure 9-3 CHAPTER TWELVE: THE DESIGN AND IMPLEMENTATION OF POLICIES TO PROMOTE POLLUTION PREVENTION & PRIMARY ACCIDENT PREVENTION A. INTRODUCTION 1. The Limits of Traditional Pollution Control and the Evolution of Pollution Prevention 2. The Winds of Change: Dissatisfaction with End-of-Pipe Regulatory Approaches 3. Industrial Ecology as a Competing Paradigm to Pollution Prevention B. CHEMICAL ACCIDENT PREVENTION AND ITS RELATIONSHIP TO POLLUTION PREVENTION 1. The Nature of Chemical Accidents 2. Chemical Safety and Accident Prevention: Inherent Safety and Inherently Safer Production 3. The Need to Coordinate Pollution and Accident Prevention so as to Avoid Problem and Media Shifting 4. The Additional Need for Inherent Safety after 9/11 C. THE SHIFT AWAY FROM CHARACTERIZING PROBLEMS AND ASSESSING RISK TOWARDS DEVELOPING TECHNOLOGY-BASED SOLUTIONS: THE US EXPERIENCE D. PARALLEL DEVELOPMENTS IN EUROPE: THE CLEANER TECHNOLOGY MOVEMENT AND ECOLOGICAL MODERNIZATION E. U.S. AND EUROPEAN UNION LEGISLATION FOCUSING ON POLLUTION AND ACCIDENT PREVENTION 1. The Pollution Prevention Act of 1990 2. The Chemical Safety Provisions of the Clean Air Act a. General Provisions b. OSHA¿s Process Management Safety Standard c. EPA¿s Risk Management Plan Regulation 3. The Massachusetts Toxic Use Reduction Act 4. Coordinating Accident Prevention with Pollution Prevention 5. European Union Legislation a. The Integrated Pollution Prevention and Control Directive b. The Seveso Directives F. USING TRADITIONAL ENVIRONMENTAL STATUTES TO ENCOURAGE POLLUTION AND ACCIDENT PREVENTION 1. Stringent Standards 2. Innovation Waivers 3. EPA¿s Supplemental Environmental Project (SEP) Program G. WORKER AND CITIZEN INVOLVEMENT IN POLLUTION PREVENTION AND TECHNOLOGY CHOICES References The Pollution Prevention Act of 1990 (42 U.S.C. §§ 13101-13109) Table 12-1 Table 12-2 Figures 12-1 and 12-2 Figures 12-3, 12-4, 12-5, 12-6 CHAPTER THIRTEEN: BEYOND POLLUTION CONTROL AND PREVENTION: SUSTAINABLE DEVELOPMENT
Library of Congress Subject Headings for this publication:
Environmental law -- United States.
Environmental policy -- United States.