Deck 47: Environmental Regulation

Question 1

In July, Vanguard Corporation began operating a metal furniture manufacturing plant in Brooklyn, New York. The plant is located in an area that has not attained the national ambient air quality standards for ozone. The plant is a major stationary source (i.e., has the potential to emit more than 100 tons a year) of volatile organic compounds that contribute to the formation of ozone in the atmosphere. The New York State implementation plan (SIP) requires that metal-coating facilities use paint that contains less than 3 pounds of organic solvent (minus water) per gallon at the time of coating. On August 24, the EPA notified Vanguard that it was not in compliance with the SIP provision concerning coatings and issued it a notice of violation. Vanguard sought to defend against the notice of violation on the grounds that it had used its best faith efforts to comply but that it was technologically and economically infeasible. It indicated that it wanted 18 more months to come into compliance. Should Vanguard be held to be in violation of the Clean Air Act?

Answer 1

Clean air act
Clean air act basically refers to federal law in U.S. which is designed to control pollution in air at a national level. Since it requires EPA (environmental protection agency) to enforce and develop the regulation in order to protect the public pertaining to contaminates that are airborne and proves to hazardous to health of humans
In this case, there exists two of set of standards pertaining to ambient air quality such as Primary standards that focuses primarily on public health from harm. However Secondary standards on the other hand are designed in such a way so as to climate, protect, materials, visibility and economic rules.
Since EPA has set standards for ambient air quality pertaining to different property like nitrogen oxide, ozone, lead and sulfur oxide etc. Thus each state is required to obtain an approval from EPA in order to meet national ambient air quality standards. The major emitters of pollutants are required to reduce their emissions to a level that ensures that overall air quality will meet national standards.
Since major urban areas of the nation were not in compliance with the health-based standards for carbon monoxide and ozone. Thus congress introduced amendments pertaining to set of requirements in the areas that do not comply with the same. Since, V did not met with any such new requirements
Hence it is ascertained that V should be held in violation of Clear Air Act

Question 2

Charles Hanson owned land abutting Keith Lake, a freshwater lake that was subject to some tidal flooding as a result of its connection with tidal waters. In order to minimize the detrimental effects from the tidal activities and consequent flooding, Hanson deposited a large quantity of dirt, rock, bricks, sheet metal, and other debris along the shoreline of his property. He did so without obtaining a permit from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act, which controls dumping and filling activities in navigable waters of the United States. Under the law, discharges of pollutants into navigable waters without a permit are forbidden. The term pollutant is defined to include "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal and agricultural waste discharged into water." The EPA brought an enforcement action against Hanson claiming he had violated the Clean Water Act. Should the court find that Hanson violated the act?

Answer 2

Case summary:
Mr. CH owns a land adjacent to KL Lake. This lake is prone to tidal flooding due to its connection with tidal waters. To deter the lake water to enter CH property, it deposited large amount dirt, rocks, sand, bricks, sheet metal and other debris at the shoreline of his property. Before doing this, CH failed to take permission from the concerned government department. As per law, discharge of pollutants into navigable water is prohibited under law. When EPA came to know about CH's actions, it bought an enforcement action against CH claiming for the violation of Clean Water Act.
Clean Water Act stands for the federal law that aims at controlling water pollution in the country.
Solution:
In this case, the court should find that Mr. CH violated the Clean Water Act because the way CH created a boundary of pollutants at the shoreline of his property due to which these pollutants could move towards the water shows that CH has violated the act and should have held liable for the same. CH could have avoided liability, if before creating boundary of pollutants at the shoreline, he could have taken EPA into confidence and informed about his plans, which could have made him aware of the regulation and could have provided with a better option to deal with the problem of water he faced. Thus, on this basis, it could be concluded that the court should find that Mr. CH violated the Clean Water Act.

Question 3

Mall Properties, Inc., was an organization that for many years had sought to develop a shopping mall in the town of North Haven, Connecticut, a suburb of New Haven. Because the proposed development would require the filling of some wetlands, Mall Properties was required to obtain a permit from the Corps of Engineers pursuant to Section 404 of the Clean Water Act. The City of New Haven opposed development of the mall-and the granting of the permit-on the grounds it would jeopardize the fragile economy of New Haven. The Corps of Engineers found the net loss of wetlands would be substantially compensated for by a proposed on-site wetland creation. Relying primarily on the socioeconomic concerns of the City of New Haven, the district engineer rejected the proposed permit. Mall Properties then brought suit against the Corps of Engineers, claiming that the decision was arbitrary and capricious. Should the district engineer have relied on socioeconomic factors unrelated to the project's environmental impacts in making a decision on the permit?

Answer 3

Case summary:
MP Inc. is the business of creating shopping malls in the city of NH. The proposed development requires filling of wetlands for which permission has to be taken under Clean Water Act. The department did not give MP permit for filling wetland because loss of wetland could be compensated with the proposed on-site wetland creation. Over this, MP bought a case against the department stating that the decision taken by the department is arbitrary and capricious.
Clean Water Act stands for the federal law that aims at controlling water pollution in the country.
Solution:
In this case, the water department should not have relied upon socioeconomic factors that are unrelated to the project's environmental impacts in making a decision on the permit because as it is mentioned in this case, the economy of NH is fragile, and creation of malls in the city might increase the fragility of the city's economy which would not be good for the overall existence of the city. Thus, on this basis, it could be said that the water department should not have relied upon socioeconomic factors that are unrelated to the project's environmental impacts in making a decision on the permit, and should stick to its decision not to permit filling of wetlands for the sake of mall construction.

Question 4

Johnson Towers, Inc., is in the business of overhauling large motor vehicles. It uses degreasers and other industrial chemicals that contain chemicals classified as "hazardous wastes" under the Resource Conservation and Recovery Act (RCRA), such as methylene chloride and trichloroethylene. For some period of time, waste chemicals from cleaning operations were drained into a holding tank and, when the tank was full, pumped into a trench. The trench flowed from the plant property into Parker's Creek, a tributary of the Delaware River. Under RCRA, generators of such wastes must obtain a permit for disposal from the Environmental Protection Agency (EPA). The EPA had neither issued nor received an application for a permit for the Johnson Towers operations. Over a three-day period, federal agents saw workers pump waste from the tank into the trench, and on the third day toxic chemicals flowed into the creek. The company and two of its employees, Jack Hopkins, a foreman, and Peter Angel, the service manager, were indicted for unlawfully disposing of hazardous wastes. The company pled guilty. The federal district court dismissed the criminal charges against the two individuals, holding that RCRA's criminal penalty provisions imposing fines and imprisonment did not apply to employees. The government appealed. Can employees of a corporation be held criminally liable if their actions on behalf of the corporation violate the federal hazardous waste law?

Question 5

The Royal McBee Corporation manufactured typewriters at a factory in Springfield, Missouri. As a part of the manufacturing process, Royal McBee generated cyanidebased electroplating wastes, sludge from the bottom of electroplating tanks, and spent plating bath solution. As a part of their duties, Royal McBee employees dumped the wastes onto the surface of the soil on a vacant lot adjoining the factory. This took place between 1959 and 1962. Over time, the waste materials migrated outward and downward from the original dumping site, contaminating a large area. In 1970, the manufacturing facility and lot were sold to General Electric, which operated the plant but did not engage in any dumping of wastes on the vacant lot. In the mid-1980s, General Electric was required by the EPA and the state of Missouri, under the authority of the federal Superfund law, to clean up the contamination at the site. General Electric then brought a lawsuit against the successor corporation of Royal McBee's typewriter business, Litton Business Systems, to recover for the costs it incurred in cleaning up the site. Under the Superfund law, "any person who at the time of disposal of any hazardous substance owned or operated any facilities at which such hazardous substances were disposed of, shall be liable for any other necessary costs of response incurred by any other person" consistent with the Superfund law and regulations. Is General Electric entitled to recover its cleanup costs from Litton?

Question 6

In August 1986, Tzavah Urban Renewal Corporation purchased from the city of Newark a building formerly known as the Old Military Park Hotel. While the buyer was given an opportunity to inspect the building, it was not informed by the city that the building was permeated with asbestos-containing material. At the time of the purchase, the building was in great disrepair and had been uninhabited for many years. Its proposed renovation was to be a major urban renewal project. In June 1987, Tzavah contracted with Greer Industrial Corporation to "gut" the building. While the work was going on, an EPA inspector visited the site and concluded that the hotel was contaminated with asbestos. He observed Greer employees throwing asbestos-laced objects out of the windows of the building and noted an uncovered refuse pile next to the hotel that contained asbestos. The workers were not wetting the debris before heaving it out the windows, and the refuse pile was also dry. As a result, asbestos dust was being released into the air. Although the hotel was located in a commercial district, there were private homes nearby. Renovation of buildings contaminated with asbestos is regulated under the Clean Air Act. The EPA regulations require building owners or operators to notify the EPA before commencing renovation or demolition and prescribe various procedures for storage and removal of the asbestos. Tzavah failed to provide the required notice or to comply with procedures required. After being notified by the EPA of the violation of the law, Tzavah stopped the demolition work, left the building unsecured, and left the waste piles dry and uncovered. The EPA tried informally to get Tzavah to complete the work in accordance with the asbestos regulations; when Tzavah did not take action, the EPA brought a lawsuit against Tzavah to do so. Should the court issue an injunction requiring Tzavah to abate the hazard posed by the dry asbestos remaining in the hotel?