Environmental Issues in Land Development: Legal Requirements and Recent Enforcement Cases
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Environmental Issues in Land Development: Legal Requirements and Recent Enforcement Cases

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Presented to Environmental Law Committee of Chicago Bar Association Young Lawyers Section on March 24, 2011

Presented to Environmental Law Committee of Chicago Bar Association Young Lawyers Section on March 24, 2011

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  • Speak for about 20 minutes   Look at some of the legal requirements that face companies involved in construction projects.   Then look at some recent enforcement cases brought nationally involving noncompliance at construction sites.
  • BEWARE Walter Peck from EPA (Ghostbusters)   Results of Noncompliance:   (1) Civil Penalties (per day per violation)   (2) Criminal Penalties (fines and/or prison time   (3) Superfund Liability   (4) Citizen Lawsuits   (5) Project Delays

Environmental Issues in Land Development: Legal Requirements and Recent Enforcement Cases Environmental Issues in Land Development: Legal Requirements and Recent Enforcement Cases Presentation Transcript

  • Environmental Issues in Land Development: Legal Requirements and Recent Enforcement Cases Dave Scriven-Young Peckar & Abramson, P.C. 208 S. LaSalle Street Suite 1356 Chicago, IL 60604 (312) 239-9722 [email_address]
  • Legal Requirements: Why Comply?
    • Civil Penalties
    • Criminal Penalties (fines and/or jail time)
    • Superfund Liability
    • Citizen Lawsuits
    • Project Delays
    • Injured Workers
  • Storm Water Runoff  
      • Construction activities that disturb one or more acres of land
    •  
      • Obtain Clean Water Act permit coverage for discharge of storm water runoff from the construction site
    •  
        • General permits issued through National Pollutant Discharge Elimination System (NPDES) program
      •  
      • Develop and implement Storm Water Pollution Prevention Plan
    •  
        • Describes physical characteristics of the site, lists potential sources of pollutants, and identifies erosion prevention, sediment control, and storm water management practices to be implemented
  • Discharges to Waters of the United States
    • Clean Water Act Section 404 permits needed for discharge of
    •  
      • Dredged material ( i.e. , excavated materials from waters of the United States)
    •  
      • Fill material ( i.e. , material that replaces an aquatic area with dry land or changes the bottom elevation of a water body)
  • Solid and Hazardous Wastes
      • Spent cleaners ( e.g. , organic solvents)
    •  
      • Used oil
    •  
      • Wastes that contain ignitable and corrosive materials
      • Paints, including lead-based paints
    •  
      • Paint thinners
    •  
      • Polychlorinated biphenol wastes ( e.g. , fluorescent light ballasts, transformers)
    •  
      • Wastes that contain certain toxic pollutants
  • Solid and Hazardous Wastes
    • Resource Conservation and Recovery Act (RCRA) imposes requirements for managing, treating, and disposing of hazardous wastes.  For example:
    •  
      • RCRA specifies the time hazardous wastes can be stored at a site.  If the storage time is exceeded, a RCRA permit is required.
    •  
      • The generator is responsible for ensuring that a tranporter is a registered hazardous waste transporter and that the hazardous waste is delivered to a RCRA-permitted treatment or disposal facility.
  • Solid and Hazardous Wastes
    • Renovation, Repair and Painting (RRP) Rule
    •  
      • Contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination.
  • Solid and Hazardous Wastes
    • Residential Property Renovation Rule
    •  
      • Requires persons who renovate "target housing" (built prior to 1978) to provide a lead hazard information pamphlet to the owner and occupant prior to the renovation.
  • Solid and Hazardous Wastes
    • Storage tanks (above ground or underground tanks) for petroleum products, such as gas or diesel fuel
    •  
      • Environmental requirements under RCRA and other statutes dictate how you store, label, and dispose of these materials, and plan for spill prevention.
    •  
    •  
  • Spill Reporting
    • Emergency Planning and Community Right-to-Know Act (EPCRA) contains emergency planning and reporting requirements.
    •  
      • If more than the reportable quantity of a hazardous chemical is spilled or released, the spill or release must be reported to the proper authorities.
    •  
      • Material safety data sheets (MSDS) for all materials containing hazardous chemicals must be maintained onsite.
  • Asbestos
    • National Emission Standard for Hazardous Air Pollutants (NESHAP) for asbestos, established under the Clean Air Act
    •  
      • Submit written notice of intent to renovate or demolish 10 working days prior to starting any construction activities.  Notifications must include the scheduled starting and completion dates of the work, the location of the site, the names of operators or asbestos removal contractors, methods of removal and the amount of asbestos, and whether the operation is a demolition or a renovation.
  • Asbestos
      • Asbestos NESHAP mandates zero visible air emissions from construction activities: Specific work practices include sufficiently wet any asbestos-containing materials to prevent release of fibers prior to, during, and after renovation/demolition activities and until disposal.
  • Other Considerations
      • National Environmental Policy Act ( e.g. , Environmental Impact Statements)
    •  
      • National Historic Preservation Act
      • Endangered Species Act
  • Enforcement
    • Improper removal and disposal of asbestos
    •  
      • Russell Coco (construction supervisor) pled guilty in U.S. District Court for the Southern District of Iowa to one count of conspiracy to violate the Clean Air Act and one count of failing to remove all regulated asbestos-containing material before commencement of the renovation project.
    •  
      • Coco agreed to face up to one year in prison and a fine up to $250,000.
  • Enforcement
    • Clean Water Act
    •  
      • Highway Construction Company agrees to pay $60,000 civil penalty for performing unpermitted fill activities that impacted a section of a nearby stream and three acres of adjacent wetlands.
    •  
      • EPA assesses $15,000 penalty against Sharp Homes-Hunter's Ridge Development.  Construction on land being developed for homes allegedly caused discharges of storm water through sewers, surface runoff and discharge pipes to a tributary to the Illinois River.
  • Enforcement
    • Clean Water Act
    •  
      • Beazer Homes USA, Inc. agrees to pay $925,000 civil penalty to resolve violations at construction sites in 21 states.   Beazer will also implement a company-wide stormwater program to improve compliance with storm water runoff requirements.
  • Enforcement
    • Residential Property Renovation Rule
    •  
      • US EPA files against Hanson's Window and Construction, Inc. 542-count complaint requesting $784,380 in civil penalties. 
  • Thank You! Dave Scriven-Young Peckar & Abramson, P.C. 208 S. LaSalle Street Suite 1356 Chicago, IL 60604 (312) 239-9722 [email_address]