UNIVERSITY OF KENTUCKY
COLLEGE OF LAW

Examination No.

Environmental Law (898-001 ) Prof. M.P. Healy
April 29, 1994 Room 110

FINAL EXAMINATION

INSTRUCTIONS

The final examination consists of five essay questions, all of which have
subparts. You will have 180 minutes to prepare responses to these questions. The
examination is worth a total of 180 points. For each question, I have indicated the
potential points and a suggested time to allow for completion of the examination within
three hours.

The examination is open text, open statute, open notes, and open outline
(provided that you wrote or contributed significantly to writing the outline). You are not
permitted to refer to treatises, horn books, commercial outlines, or other secondary
materials.

You must write vour examination number on the front of each blue book that
you use. Please write your examination number on this question sheet as well.
Number sequentially the blue books that you use. Turn in all materials -- this
examination packet and all blue books, including blue books used for scrap paper -- at
the end of the examination period or when you have completed the examination,
whichever is earlier.

PLEASE READ EACH QUESTION COMPLETELY BEFORE BEGINNING TO
OUTLINE OR WRITE YOUR ANSWER. ANSWER EACH PARTICULAR PART OF
EACH QUESTION BEING ASKED. WRITE YOUR ANSWERS LEGIBLY: WRITE
ONLY ON EVERY OTHER LINE AND WRITE ONLY ON ONE SIDE OF THE BLUE
BOOK PAGE. DO NOT WASTE YOUR TIME WITH WILD SPECULATIONS FOR
WHICH NEITHER THE QUESTION NOR THE ANSWER CALLS. Your work on this
examination is subject to the College of Law's Honor Code.

If you have any questions, ask me.

DO NOT TURN THIS PAGE
OR BEGIN THIS EXAMINATION
UNTIL YOU ARE TOLD YOU MAY DO SO

GOOD LUCK!

QUESTION I (50 POINTS -- 50 MINUTES)

New City is planning to build a new underground highway system to improve
traffic conditions in its inner city. The underground highway will handle a large volume
of traffic.. In order to maintain breathable air inside the tunnel, the city will equip the
tunnel with several venting structures. Each of these structures will make use of fans
and vents to bring fresh air into the tunnel and to emit into the city's air the pollutants
emitted by automobiles using the underground highway. The city is located in an air
quality control region (AQCR) that is nonattainment for carbon monoxide. The AQCR
is attainment for all other criteria pollutants. The pollutants and the relevant amounts
that will be emitted from the venting structures are as follows:

Pollutant Amount (tons Der vear)

Carbon Monoxide (CO) 260
Volatile Organic Compounds (VOCs) 75
(precursors to ozone)
Sulfur Dioxide (S02) 35
Benzene (CH6) 15
(a hazardous air pollutant)

You have been contacted by an environmental group that is opposed to the
city's plans for a new underground highway and seeks your advice. Please prepare a
response to the following inquiries.

A. The city has not yet obtained a permit for a new source under the Clean Air
Act. The environmental group wants to know whether any new source permitting
requirement(s) applies(y) to the proposed underground highway. Please evaluate
whether any such requirement would apply to the city's proposed project. There is no
need to discuss the substantive requirements that the source would have to meet if
new source Permittinq were required.

B. Regardless of your views about whether any new source permitting
requirement applies, you are to assume (1) that all Clean Air Act requirements for new
sources apply fully to this source and (2) that the source is among a class or category
of sources defined for each type of pollutant that it emits. Your research on emissions
standards has yielded the attached provision from the Code of Federal Regulations,
which identifies the amount of each of the listed pollutants that is defined to be a
significant emission. Please identify the emissions standard that would apply to each
pollutant being emitted from the underground highway. Please briefly explain your
reason for concluding that each such standard will apply.

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C. You are to assume again that all Clean Air Act requirements for new
sources apply fully to this source. The environmental group that has contacted you
has significant concerns about carbon monoxide emissions the underground highway
and has asked you to describe briefly any Clean Air Act requirements, other than the
applicable emissions limitation, that apply to this new source and its plan to emit
carbon monoxide. Please provide this brief description.

D. Assuming that your client wishes to assert a claim that New City is violating
the Clean Air Act, what type of claim would your client assert, in which court would the
action be brought, and why would that court arguably have jurisdiction to adjudicate
the claim.

EXCERPT FROM EPA REGULATIONS DEFINING WHEN
THE EMISSION OF A POLLUTANT IS SIGNIFICANT
(40 C.F.R. 51.166(b)(23))

(23)(1) Significant means, in refer-
ence to a net emissions Increase or the
potential of a source to emit any of
the following pollutants, a rate of
emissions that would equal or exceed
any of the followlng rates:

Pollutant and Emission Rate

Carbon monoxide: IO0 tons per year (tpy
Nitroeen oxides 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate
matter emissions. 15 tpy of PM,. emis-
sions,
Ozone: 40 tpy of volatile organic Compounds
Lead: 0.6 tpy
Asbestos: 0.007 tpy
Beryllium: O.OO04 tpy
Mercury: 0.1 tpy
Vinyl chloride: I tpy
Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H,S): 10 tpy
Total reduced sulfur (including H.S): 1O tpy
Reduced sulfur compounds (including H.S):
10 tpy
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QUESTION 11 (30 POINTS -- 30 MINUTES)

The Old Mine property is the site of an abandoned copper and zinc mine that
operated intermittently from the 1860's through the 1950's. The companies that mined
the site left behind reactive mine tailings, waste rock, and excavated ores. When
exposed to oxygen and water, these materials form "acid mine drainage" (AMD),
which contains high concentrations of the following toxic pollutants: aluminum,
cadmium, copper, zinc, iron, and sulfuric acid. The concentration of these pollutants
increases as the period of exposure to oxygen and water increases. Unless impeded,
rain water falling on the site carries this AMD downhill, in the form of surface runoff,
into the Blue River -- a river that flows interstate. Indeed, such toxic runoff had
caused several large fish kills in Blue Resevoir and had necessitated additional
purification of drinking water.

In the 1960's, the Blue River Water District (the District) acquired a portion of
the Old Mine property to build the Blue Reservoir. Both Blue Resevoir and River are
used for drinking water. In 1985, the District constructed the Old Mine Facility (the
facility) in an attempt to reduce the threat of continued toxic runoff from the site. The
facility consists of Mine Run Dam and the Mine Run Dam Reservoir surface
impoundment, along with a series of other impoundments, pipes, valves, and
channels. The facility was designed to capture contaminated surface water flowing
through the site, and to contain and evaporate the water through a ponding system
that would prevent the contamination from reaching the resevoir and river below.

The facility operates by establishing an impoundment system where runoff into
Blue River and Reservoir had previously been unimpeded and uncontrolled: Water
contaminated with toxic pollutants runs off the mine site and collects in the series of
impoundments and eventually collects in the Mine Run Dam Resevoir. As part of the
facility's ongoing operation, various pipes and channels carry polluted runoff from the
mine tailings and dikes into the Mine Run Dam Reservoir and other facility
impoundments. In addition, from time to time, water and drainage collected in the
Mine Run Dam Resevoir and containing toxic pollutants have passed over the
spillway or through the dam's discharge valve into the Blue River and Blue Reservoir.

You are a law clerk for a federal district judge, which is reviewing a citizens suit
claim alleging that the company is violating the Clean Water Act by discharging
pollutants into waters of the United States without a National Pollution Discharge
Elimination System (NPDES) permit. The U.S. Environmental Protection Agency
(EPA) has taken the position that a permit is not required in the circumstances of this
case.

A. Please analyze whether a permit is required in this case and explain why
the judge should affirm or reverse EPA's decision that a permit is not required.

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B. Assuming that the NPDES permit requirement does apply to the discharges
from the dam, (1) what technology-based standard would be applied to the discharge
of toxics from the dam, (2) how would EPA generally identify the discharge limitations
to be included in the permit given that standard, and (3) briefly describe the type of
variance, if any, that would be available if a standard for a relevant category of
sources has been set by EPA.

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QUESTION 111 (40 POINTS -- 40 MINUTES)

The Little River Hunting and Fishing Club (The Little River Club) owns 3500
acres of land in East Texas. This property contains a very substantial amount of
high-quality wetlands and wildlife habitat essential to migratory waterfowl. Some
studies have rated the vegetation on The Little River Club's land as among the most
pristine wetland areas in the state of Texas and have documented that its wetlands
play host to such dwellers as mallards and wood ducks. The Little River Club, which
hopes to guarantee that this property will be preserved in its pristine state without the
corrupting effect of development, has decided to donate a nondevelopment easement
on this property to the United States Fish and Wildlife Service (FWS), an agency in
the United States Department of the Interior.

As you are aware from our discussions in this course, our nation's wetlands are
threatened by development. Because wetlands are critical to flood control, water
supply, water quality, and wildlife, concerns have been raised about the long-term
effects of the rapid disappearance of wetlands. The FWS has the statutory
responsibility to protect and maintain the population of migratory waterfowl, other
wildlife resources, and endangered species. Consistent with this responsibility, the
FWS established the National Wildlife Refuge System. Through this Refuge System,
the FWS has acquired millions of acres of environmentally rich lands in order to
preserve them in their natural state. These lands provide a winter home to many
thousands of migratory birds and waterfowl using the "Central Flyway." The FWS
acquires some Refuge land in fee simple; much land, however, is obtained in the
form of leases and easements precluding development of the land, because the FWS
is seeking only to prohibit environmentally destructive activity on the land. The
purchase of leases and easements is a far more economical way to promote the goal
of preventing adulteration to the lands, because the government need not buy the
property and take title outright; it purchases only a promise by the owner to refrain
from developing the property in a manner inconsistent with wetland preservation.

The FWS is now planning to add to the National Wildlife Refuge System by
accepting from the Little River Club a donation of a non-development easement on the
Club's property. You are an associate who practices environmental law for a small
firm. Your firm has been contacted by the Little River Authority, which has raised
concerns about the planned donation of the conservation easement. The Authority
has preliminary plans to develop the Little River Reservoir. The planned $175 million
reservoir would satisfy the anticipated need of three counties for additional water over
the next forty years. The resevoir would, however, flood about fifty thousand acres,
including the property owned by The Little River Club. One important consequence of
including the Club's property in the National Wildlife Refuge System would be that
Texas would be foreclosed from taking the property by means of eminent domain.
The Little River Reservoir could not be constructed without the ability to flood these
lands.

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You have been assigned to work on this project and the partner has asked you
to prepare responses to the following questions.

A. Please describe briefly the procedure that the FWS would follow, if the
National Environmental Policy Act (NEPA) applied to its decision to accept the
conservation easement. Do not analyze the substantive decisions that the FWS would
make, given the facts, in following these procedures.

B. Based on the facts that are outlined above, analyze whether the FWS must
prepare an Environmental Impact Statement (EIS) prior to deciding whether to accept
the Club's donation of a conservation easement.

C. Assume that Little River Authority wishes to bring a lawsuit alleging that the
FWS acted illegally when it failed to comply with NEPA prior to deciding whether to
accept the conservation easement. Briefly define the cause of action that you would
pursue to assert that claim and analyze whether Little River Authority would have a
right to assert such a claim.
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QUESTION IV (30 POINTS -- 30 MINUTES)

In the mid-1970's approximately 50 secondary lead smelters in the United
States were engaged in the business of reclaiming the lead from about 90% of all
spent batteries. These smelters were themselves a major source of several kinds of
pollution: water discharged by the smelters contained large amounts of toxics;
hazardous materials were contained in process wastes, which were subject to on-site
and off-site storage or disposal; and hazardous air pollutants were emitted by the
smelters.

New environmental laws and regulations that became applicable to secondary
lead smelters placed such a financial burden on their operation that about 60% of the
smelters operating in 1976 were out of business by 1986, and the 20 or so smelters
that remained were reclaiming only about 70% of all spent batteries. In 1986 only 55
million of the available 70 million spent batteries were reclaimed. This meant that the
15 million unreclaimed, spent batteries endangered the health of all persons working
or residing near where they were disposed. Meanwhile, recycling of the 55 million
reclaimed batteries produced about 60% of all lead used in the United States.
Without recycling by secondary lead smelters, about 55 million additional spent
batteries would be scattered throughout our country annually and a new source of
lead would have to be found.

Smelter, Inc., owns and operates a secondary lead smelting facility in Mining
Town and is thus one of the 20 smelters remaining in the country which reclaim spent
batteries. Each year, Smelter reclaims more than 2.5 million batteries, or about 5% of
those reclaimed in the United States. Smelter purchases batteries from various
suppliers and places them in a reclamation process. Incoming batteries are cracked
open and drained of sulfuric acid. The sulfuric acid is then collected in drums and
stored on the site for future reclamation and sale. The lead battery components,
known as "plates and groups," are then removed from the broken batteries and run
through Smelter's smelting process to produce lead ingots for sale.

Assume that you are a lawyer at the U.S. EPA, which is deciding whether the
Resource Conservation and Recovery Act (RCRA) applies to the operations of
Smelter, Inc. You have been informed by agency scientists that, based on the
applicable EPA tests, the lead contained in the plates and groups is toxic and the
sulfuric acid is corrosive.

A. Analyze whether RCRA compels EPA to regulate either or both of the
following aspects of Smelter's operations: (1) its collection and storage of sulfuric
acid; and (2) its process of handling and smelting the Uplates and groups" (i.e., the
lead components of the batteries).

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B. Regardless of your response to Part A, assume that your supervisor at EPA
has told you that the Administrator believes that RCRA does not dictate that the
operations of Smelter, Inc., must be regulated. (You are not to argue this point.)
Please discuss the extent to which, as a policy matter, EPA should interpret RCRA to
apply to the plant's operations. Based on the purposes of RCRA and the effects of
regulation, should EPA reach a decision to regulate either or both of the operations
identified in Part A? (For purposes of Part B, do not discuss whether or not RCRA's
terms compel a decision to regulate.)

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QUESTION V (30 POINTS -- 30 MINUTES)

The City of Fairview operates a publicly-owned treatment works for treating
sewage, wastewater, and the pretreated effluent of indirect dischargers. This sewage
treatment system includes a network of combined sewage and stormwater pipes.
Under ideal conditions, the effluent flowing in the system is transported to the Fairview
Treatment Plant where it is treated and then discharged through two discharge points
into West River, a river that flows interstate. This system, however, is capable of
carrying to the treatment plant only three times the average flow of effluent on a dry-
weather day. When the flow exceeds this capacity, as can occur during periods of
precipitation, the effluent is released untreated through one of 25 combined sewer
overflow (CSO) discharge points in what is termed a CSO event. There are between
50 and 80 CSO events in Fairview each year.

Fairview's 25 CSO discharge points, like the two discharge points from the
Treatment Plant, drain into West River. This waterway is used by Fairview residents
for recreation, including water contact activities such as boating. The release of
untreated sewage as part of a CSO into the river can present health risks.
Environmental Group (EG) has developed both anecdotal and scientific evidence of
the polluted nature of West River, especially during and immediately after CSO
events.

Fairview has a NPDES permit, which includes specific limits on the amount of
pollutants that can be discharged from the two discharge points leading from the
Treatment Plant. The permit was granted by the U.S. EPA, which has authority to
administer the NPDES program in Fairview's state. The federal permit also states that
Fairview may occasionally discharge effluent from the other 25 CSO discharge points,
but does not define any specific limits on the amount of pollutants that can be
discharged from those points. The permit does, however, include a general condition
that prohibits any discharges that would violate the state's water quality standards.
The permit provides that, "[n]otwithstanding the effluent limitations established by this
permit, no wastes shall be discharged and no activities shall be conducted which will
violate State Water Quality Standards (WQSs)." The State has developed narrative
water quality standards for the maximum level of fecal coliform in West River. EG has
offered declarations and scientific reports that it believes demonstrate continuing
violations of those narrative WQSs for fecal coliform in the waters surrounding the 25
CSO discharge points after CSO events.

Abatement of CSO events is not easy. It has been estimated that to solve the
problem in Fairview will cost between $500 million and $1.2 billion dollars.

You are employed in the Environment and Natural Resources Section of
Fairview's City Attorney's Office. Your office has received communications from EG
indicating that the group may bring an action alleging a violation of the Clean Water

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Act. In considering such an action, your supervisor has asked you to prepare
responses to the following three inquiries.

A. Please describe briefly how WQSs supplement NPDES national standards
under the Clean Water Act.

B. Please analyze whether EG would be likely to prevail if it were to bring a
citizens suit in federal district court alleging a violation of the WQS for fecal coliform

C. Assume that a citizens suit will be unsuccessful, describe whether the group
would have any alternative avenues of relief to seek control of the effects of CSOs on
pollution of West River.