Environmental Law for Engineers and Geoscientists

Robert Lee Aston

• Publisher: CRC Press
• Year: 2018
• eBook ISBN: 9781351989725
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Today's engineering and geoscience student needs to know more than how to design a new or remedial project or facility. Questions of law and ambiguities of terms often occur in contracts for mining, landfills, site reclamation, waste depositories, clean up sites, land leases, operating agreements, joint ventures, and other projects. Work place situations arise where environmental compliance methods are challenged by enforcement agencies. Although the statutes, rules, and regulations may seem to be worded clearly and specifically, there are often questions in application and sometimes varied interpretations.

Environmental Law for Engineers and Geoscientists introduces simplified American jurisprudence focusing on the legal system, its courts, terms, phrases, administrative law, and regulation by the agencies that administer environmental law. The book comprehensively covers the "big five" environmental statutes: NEPA, CAA, CWA, CERCLA, and RCRA. With the basic law chapter as a foundation, the book covers the practical applications of environmental law for geo-engineers. It concludes with a chapter on the growing area of expert witnessing and admissible evidence in environmental litigation — an area of law where success or failure increasingly depends on the exacting preparation and presentation of expert scientific evidence.

Written by a professional mining and geological engineer and a practicing attorney, Environmental Law for Engineers and Geoscientists prepares students for the numerous environmental regulatory encounters they can expect when dealing with various statutes, laws, regulations, and agency rules that govern, affect, and apply to environmental engineering projects. It provides a working knowledge of how to judge whether or not a project is in compliance with regulations, and how to ensure that it is.

CHAPTER 1

Introduction to Environmental Law

 

 

 

1.1 NEED FOR A NATIONAL ENVIRONMENTAL PROTECTION POLICY

After more than two centuries of unbridled, carefree development and free-swinging exploitation of the natural resources over hundreds of millions of acres in the new land of America, one that had lain relatively untouched by an inconsequential number of native inhabitants since God and nature had so richly endowed it, a dawning of concern for the environment settled on Americans. In retrospect, the rich land was being squandered and allowed to waste. A program of control for environmental concern and protection was needed, and for some aspects, overdue.

The United States was born of English parentage in 1776. As an Anglo-offspring, it lived with and under parental rule for nearly two centuries before setting up its own housekeeping and home rules. In claiming its inheritance of Crown lands after the war for separation, it found itself a very wealthy young nation in terms of space, natural beauty, and richly endowed resources with a moderate clime in which to grow.

In formulating its own mode of home rule or government it threw off the regulatory paraphernalia and trappings of the Crown. Instead of holding lands in the name of the United States or Sovereign, whereby reservations were made in title, interest, and use of the land, as is done to a greater extent by our British cousins for Crown lands in British Commonwealth nations, the new government, being one “of the people, by the people and for the people,” sought to distribute its lands to the people for their benefit, enjoyment, and development. Self-enterprise was greatly fostered, which hastened to make the new nation prosperous and greatly accelerated its development.

The young government embarked on its new enterprise of nation building with a typical flare of American enthusiasm and ingenuity for developing an enterprise. In its rush to attract settlers and develop its newly acquired wealth of land and resources, it made few reservations in the land it was willing to deed away or grant to private ownership Immediately after the cessation of the rebellion against its parents, the infant federal government began giving away parcels of “western” lands (still east of the Mississippi River) to its soldiers of the American Revolution in payment and gratitude for services rendered in the war. Public lands just west of the Appalachian Mountains were easily available for pioneering settlers to push back the eastern frontier. As the young nation acquired more lands in the Far West, it became even more eager to develop them by rapid settlement.

After initial development of the United States extending from the Atlantic to the Pacific shores had become a reality, subsequent governmental land programs were devised and enacted to fill in the sparsely settled areas of the Great Plains and the Rocky Mountains that lay between the two coasts. Before 1841, large blocks of public lands were sold to private land companies to split up and sell. In 1841, the General Preemption Law was passed to open up public lands for settlers and secure patents for the land. The Department of the Interior was created in 1849 to manage the vast public domain The Homestead Act of 1862 hastened development by allowing settlers to take a quarter-section (160 acres/64.75 ha) for a small fee, build a home on it, and cultivate the land as conditions for obtaining title. The railroads were playing an important part in settling the West by transporting settlers from the East. Land grants were made to railroads for building new lines and for helping in western development. Railroad grants varied from right-of-ways to fee ownership of alternating land lots long the lines. Over 94,000,000 acres (38,041,278.8 ha) in the West are estimated to have been granted to the railroads by various acts (e.g., the Northern Pacific Railway Act of 1864, and the Railroad Right of Way Act of 1875).

Thus, during the period from the end of the British Colonial period to the present, the federal government succeeded in giving away nearly half of the original and acquired land area of the United States. Today, the federal government still owns, or holds title to one third of the land area of the nation.

Somewhat concurrently with the rapid giveaway schemes of land, around 1864, the progenitors of environmentalism, termed conservationists and preservationists, sowed their seeds of concern for modern environmentalism. The seeds grew at a slower pace than did the more exciting development of the lands. One of the progenitors was a lawyer and diplomat by name of George Perkins Marsh. In his travels over Europe and the Middle East, he had noted massive deforestation with resultant soil erosion, and man‘s interference with the balance of nature. Marsh published a book, titled Man and Nature, in which he not only described his observations of the results of man’s poor stewardship of nature through wasteful practices in forestry and agriculture but also advocated restorative measures.

This early environmental concern and advocacy of measures to conserve our natural resources did not take hold until the 1890s when Congress authorized the President by the General Revision Act of 1891 to establish forest reserves on the public lands. A few of the early federal laws of conservation that were enacted illustrate a beginning of environmental concern, though under the name of conservation and preservation at that time:

 

1. 1872: Yellowstone National Park was created.

2. 1902: The Reclamation Act for water resources in the West was enacted.

3. 1906: The Congress-authorized mineral lands were withdrawn from entry until valuations could be made by the Department of Interior.

4. 1906: Land-grant colleges were established to promote improved farming practices in the states.

5. 1908: Theodore Roosevelt “fathered” a conservation spirit for planning of natural resources and national parks under a conference producing a “Declaration of Principles on Conservation.”

6. 1909: Theodore Roosevelt hosted a North American conference for advocating natural resources conservation.

7. 1916: The National Park Service was created, although 16 national parks and about 18 national monument sites had already been created by that time.

 

Along with concerns for preservation and conservation in the early twentieth century, the advanced state of development and higher standard of living of the industrial nation brought with it environmental problems. Deterioration of water and air quality over the past century steadily mounted in intensity and volume until the American society would no longer tolerate uncontrolled pollution by industry and public waters contamination by government waste disposal services. High living standards in this deteriorating environment triggered society to cry out for quick relief, which in turn brought stern corrective measures for the allegedly culpable industrial segment of our society. The higher standard of living with its superfluous amenities for an easier lifestyle also brought with it massive volumes of liquid, gaseous, and solid waste resulting in the problem of how to dispose of it without further deterioration of the environment. Advanced technology of the developed nations, in response to the general public’s demand and craving to make a utopian dream of luxury a reality for every individual, resulted in increased production to meet the continuous demand of higher living standards for all persons without regard to societal costs. Consequently, the pursuit of such luxury and abundance ideals generated at the same time tremendous volumes of hazardous and toxic wastes. Simultaneously, there was a demand for immense amounts of energy supplied by fossil fuels, or alternatively by radioactive minerals, to meet the power requirements for the increased production. The developed societies, having lived in the lap of luxury for decades since the turn of the twentieth century, without great concern for the deterioration of the environment, had come to realize that the time has come “to pay the piper” and make amends to the environment.

Mining, as a basic industry, produces the essential raw materials necessary for the manufacturing of society’s necessities and luxuries for its well-being. This is well stated by the mining industry’s maxim; and although it may be defensive, it states a nudem veritas (a naked truth), “If it can’t be grown, it has to be mined.” Those professing a deep concern for the environment would do well to keep this basic tenet in mind. The advanced or developed society is unwilling to revert to a lesser way of life. Unfortunately, for society to continue in the manner of life to which it has become accustomed, it is caught between the demands of cleaning up its deteriorating environment, and having a continuing supply of basic raw materials for its mode of good living, or continuing exploitation without concern for the environment. An advanced society must have “clean living” conditions at the same time with “good living,” neither of which is expendable. The price tag for this combination must be paid by society. The price is, indeed, high and becoming higher every year with increasing environmental constraints placed on the raw materials providers and manufacturing industries, and now on the newer waste disposal industry.

As indicated, a part of the problem of restoring the standard of clean living has resulted from the volumes of waste generated in the manufacturing of products from the raw materials taken from the earth. In addition, society generates tremendous volumes of disposable waste from its consumption of products that have a short-term life, such as plastic and paper products. The resulting problem is disposal of the waste without degrading the environment, or at least minimizing the degradation.

Unclassified and unrestricted landfills, dumping in the oceans, rivers, and large lakes have been earlier solutions for disposing of society’s waste. In a few decades those methods boomeranged to haunt society. The current trends for waste disposal are toward incineration of bulk waste, controlled and classified landfills, and recycling of reusable materials. Although incineration greatly reduces the bulk of waste, incineration has not been readily accepted. Recycling does not adequately resolve the necessary volume reduction for disposal of society’s waste. Thus, large amounts of waste for disposal continue to be a problem. Placing the waste in controlled landfills appears to be the most accepted and logical solution for disposal of the bulk volume. The waste disposal industry has mushroomed as a result. New excavations of pits, either for the placing waste or for excavating clay cover and lining material for surface mounding of waste, must be made. With the enormous volumes of waste, larger numbers of increased size landfills are needed. Along with this need comes the problem of location, siting, and permitting for landfills.

From the early decades of the twentieth century, natural resources concern has gradually grown and a considerable number of federal laws have been enacted in an effort to conserve and to preserve. With the advent of, and pressures from, the environmental “green” movement of the 1960s, Congress responded by passage of the National Environmental Policy Act of 1969 (NEPA), effective January 1, 1970, which was followed shortly by Earth Day, April 22, 1970.

Since the enactment of NEPA, a plethora of environmental acts, laws, and regulations have been created to carry out the national crusade for a cleaner environment. The professions of law and engineering have been deluged, swamped, and inundated by environmental regulations and paperwork, starting with a staggering number of application forms, environmental assessments, impact studies, and comprehensive reporting, all from the start of a project through monitoring years after the project has ceased to function The regulations and environmental controls for all phases of industry, including waste disposal, continue to increase yearly in number and become more pervasive of nearly every facet of American life and livelihood.

Punishment for environmental violations is no longer limited to fines, but violations have become environmental crimes in some cases, subject to imprisonment for the responsible party or corporate officer. Thus, a critical need is established for engineers to have some insight into environmental law and its workings to cope with and properly dispense their engineering duties and problems.

CHAPTER 2

Basic Law for Engineers and Geoscientists

2.1 GENERAL ORIENTATION TO AMERICAN JURISPRUDENCE

To study various laws and regulations affecting the practice of engineering and engineering projects, the case study method as normally employed in American law schools is used in this text. The case study method examines how the law in a litigated action with a particular issue, or issues, is argued, interpreted, and applied by the hearing court or hearing board in the case of a regulatory agency review. Environmental case studies generally review the environmental issue being litigated from its inception at the agency level, to hearing board appeals, and through the appeal to the trial court. From the case study, the purpose and parameters of a regulation at issue are examined, defined, and construed by the court for implementation as intended by the enacting legislative body. Case studies offer the opportunity to learn from the misinterpretations, mistakes, and challenges of others; and to know what is expected in performance to comply with environmental regulations and laws.

It is important to stress to the engineer when reading a court’s decision of a legal question in a case, to avoid becoming entangled in the legal procedures involved. For example, in a case where reviewability of an Environmental Protection Agency (EPA) action or decision is the question of law before the court, the written decision may involve civil or legal procedure in law, or procedure for administrative regulations. That procedure should be left to attorneys to study, and glossed over by the engineer. The part of the court’s written decision that is of interest and enlightening to the engineer is often given in the recitation of background information and facts that led to the controversy and brought the action into court. The allegations, interpretations, claims, and arguments put forth by the parties to the suit, similarly, are enlightening to the engineer and should be noted. The court will consider and normally treat the parties’ arguments in the decision, pointing out the merits and the flaws. These should be read by the engineer. Finally, the court conclusions of law and findings are of greatest interest to both engineer and attorney.

In reading court decisions, environmental agency procedures are often described and the engineering reader should take note of the details given because they often will apply to environmental engineering procedures that may be encountered. For example, agency rules frequently contain time limits for filing information, environmental data, reports, and various other submissions in obtaining extensions and permitting, all of which are important to the engineer. However, the engineer must learn to discern between agency requirements of administrative regulatory procedure and those of environmental curative procedure, that is, to discern information that is of interest as an engineer, not as an attorney. Again, use caution. Do not become entangled in the details of legal procedure while studying a court’s decision.

2.2 DIVISIONS OF LAW

Law, as with branches of engineering, is divided into different subject areas, or categories of practice. For example, divisions of law ar...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Abstract
• Preface
• Acknowledgments
• Table of Contents
• List of Cases
• List of Figures
• List of Commonly Used Abbreviations and Acronyms
• Chapter 1 Introduction to Environmental Law
• Chapter 2 Basic Law for Engineers and Geoscientists
• Chapter 3 National Environmental Policy Act (NEPA)
• Chapter 4 Air Pollution and the Clean Air Act (CAA)
• Chapter 5 Water Pollution and the Clean Water Act
• Chapter 6 Other Important and Miscellaneous Enviornmental Statutes in a “Nutshell”
• Chapter 7 Water Pollution by Abandoned Mine Sites; Acid Mine Drainage; Mined Land Reclamation
• Chapter 8 Geoscientific and Engineering Expert Witnessing and Admissible Scientific Evidence
• Appendix A Iron Mountain Mine Site, Further Detailed Description
• Appendix B A Very Simplified Environmental Guide for Starting a Mining Operation, or for a Takeover of a Mining Operation
• References
• Index