Environmental Law

The canal under the school

Between 1942 and 1953 the Hooker Electrochemical Company buried more than 21,000 tons of chemical waste in an unfinished canal on the eastern edge of Niagara Falls, New York. The drums went into a makeshift sixteen-acre landfill. In 1953 the company covered it with soil and transferred the land to the Niagara Falls Board of Education. An elementary school went up, and about a hundred homes went up around it. Then the drums began to leak, and the waste moved into the soil and the groundwater. Residents reported odors and residues in the 1960s, and by the late 1970s the contaminated groundwater was reaching the surface (opens in a new tab).

In 1978 President Carter declared a federal emergency and sent money to contain the waste and relocate the residents. He had to, because no statute paid for this. Congress wrote one two years later, and it reached back to conduct that had broken no federal hazardous waste law when it happened, because no such law existed yet. That is the question sitting underneath this whole field: who pays, and on what showing? This reading follows how four federal statutes split the work between cleaning up the past and licensing the present, and how a company gets in front of both. In Part 2 you read a real enforcement action, and in Part 3 you write the controls that would have stopped it.

Four statutes, sorted by time

Start with who acts. The Environmental Protection Agency writes the regulations under each of these statutes and then enforces them, which means the same body that defines the duty also inspects for it. Congress sets the framework in general terms. The agency fills in what a facility actually has to do.

Two of the four statutes license day-to-day operations. The Clean Air Act covers emissions to the air, from factories and from vehicles, and it authorizes the EPA to set national ambient air quality standards. A facility whose emissions cross the statutory thresholds needs an operating permit before it runs. The Clean Water Act covers discharges to water. Its central provision makes it unlawful to discharge any pollutant from a point source into navigable waters without a permit, issued under the National Pollutant Discharge Elimination System.

Read that structure again, because it is unusual. The statute does not forbid pollution. It forbids discharging without a permit, and the permit then says how much of what you may release. For your facility, the permit is the law.

That is why a company’s environmental exposure lives in its files. A permit carries numbers, sampling schedules, and reporting deadlines. Miss a required sampling date and you have violated the permit, whether or not anything unusual left the pipe that day. The penalty provision (opens in a new tab) runs per day and per violation, so a reporting lapse that nobody catches for a year is not one violation. It is a year of them.

Then comes the waste. The Resource Conservation and Recovery Act follows hazardous waste from cradle to grave, through generation, transport, treatment, storage, and disposal. Picture a shop that degreases metal parts and fills a drum with spent solvent. Someone has to decide whether that drum is hazardous waste, and that decision is itself a legal duty rather than a judgment the shop can postpone. If the answer is yes, the drum has to be labeled and stored properly, handed to a licensed transporter, and sent only to a permitted facility. The shop that generated it stays on the paperwork the whole way.

Notice what RCRA does not do. It says nothing about the solvent a previous tenant poured onto the ground behind the building in 1968. That is CERCLA’s work, and CERCLA is a different kind of statute.

Who pays for the past

CERCLA does not regulate an operation. It assigns a bill. Congress enacted it on December 11, 1980, funded it with a tax on the chemical and petroleum industries, and built a trust fund (opens in a new tab) for cleaning up sites where no responsible party could be identified.

Where one can be identified, section 107 finds it. The liability section (opens in a new tab) reaches four groups: whoever owns or operates the facility now, whoever owned or operated it when the disposal happened, whoever arranged for the disposal, and whoever transported the waste there. Read the first group again. A company that bought the land last month sits on the same list as the company that buried the drums.

The liability is strict. The government does not have to show that anyone was careless, and a company that met every standard of its day still owes cleanup costs when the site starts leaking. The burial at Love Canal broke no federal hazardous waste law, because RCRA was still twenty-three years away. That did not matter.

It is usually joint and several as well, which is the part that surprises people. Where several parties contribute to one indivisible harm, each can be charged with the whole cleanup. A defendant who wants less than the whole carries the burden of proving a reasonable basis for dividing the harm. In 2009 the Supreme Court upheld such a division, capping two railroads at nine percent of a site’s cleanup (Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009) (opens in a new tab)). The trial court had built that figure from the size of their parcel, the years it was leased, and the chemicals traced to it. Where that kind of proof is missing, courts refuse to apportion by guesswork.

The defenses are few. Subsection (b) allows an act of God, an act of war, an act or omission of an unrelated third party, or some combination of those. Notice what is absent. Not knowing is not on the list. That absence, rather than anything the statute affirmatively requires, is why environmental due diligence happens before a closing instead of after one.

How a violation becomes a penalty

A case usually starts with an inspection, a report the company filed itself, or a tip. The EPA can then proceed civilly or refer the matter to the Department of Justice for criminal prosecution (opens in a new tab), which the statutes reserve for violations involving a culpable state of mind. Most cases end in a settlement rather than a trial, which is why the documents you read in Part 2 are consent decrees and consent agreements rather than opinions.

A civil penalty has two parts, and telling them apart shows you how a company’s own conduct moves the number. One part reflects the gravity of the violation: how serious it was, how long it ran, what it put at risk. The other recaptures the economic benefit the company gained by not complying, the money it saved by skipping the control equipment, the permit, or the disposal cost. That second part is not really a punishment. It is a refund of an advantage, and the agency is reluctant to give it up.

The statute tells the court what to weigh. Under the Clean Water Act, a court setting a penalty weighs six things: the seriousness of the violation, the economic benefit, and any history of such violations. It also weighs the violator’s good-faith efforts to comply, the economic impact of the penalty, and whatever else justice requires. Four of those six describe the company rather than the violation. A company with a working compliance program arrives with evidence for them. A company without one arrives with nothing to say.

Which brings up the Audit Policy (opens in a new tab), the most direct incentive in the field. An entity that discovers a violation on its own, promptly discloses it, corrects it, and prevents it from recurring can have the entire gravity-based portion of its penalty waived. Meet every condition except discovery through a systematic process and the reduction is 75 percent. The economic-benefit portion stays, which follows from what it is.

The checklist

An environmental compliance program is not a binder. It is the set of arrangements that make a company notice its own problems first. One is an inventory of what the facility generates and releases. Another names a person answerable for each permit condition, and another puts a calendar in place that fires before a deadline rather than after it. The workers who handle the waste get training, and an internal audit goes to someone outside the operation.

Each of those has a reason in this reading. The inventory exists because the hazardous waste determination is a duty. The named owner exists because the permit is the law for that facility, and every term in it needs someone answerable for it. The calendar exists because the penalty runs per day. The training exists because the workers holding the drum are the ones who decide, in practice, where it goes. The audit exists because the Audit Policy pays for finding your own violation, and because a court weighing good-faith efforts wants to see something.

That is the logic you are about to run backwards. In Part 2 you pick a real enforcement action out of ECHO (opens in a new tab) or the EPA’s settlement summaries and work out what the company’s program was missing. In Part 3 you write the five to seven controls that would have caught it. Begin with the Environmental Law Foundation Builder on the activity page, and hold what it tells you against the statutes themselves, because a model asked about four environmental regimes at once will blur them together.

One test separates a real checklist from a list of good intentions. Read each item and ask who would have had to do what, and on what day, for the violation to surface. An item that cannot answer that is a slogan.