Soil and Groundwater Contamination

Some environmental statutes require responsible parties to remediate or remove contamination that has leaked or was otherwise released into the environment. The best known federal law is the Superfund ("CERCLA") program, which establishes a system for designating the most contaminated sites and financing the cleanup of those sites.

Superfund provides a system for:

• administrative designation of responsibility for cleanup costs
• identifying who may be required to fund the Superfund cleanups, by legal action against them in court if necessary

In connection with the Superfund program, the federal Environmental Protection Agency ("EPA"), as the responsible administrative agency:

• Prepares lists of sites to be targeted for remediation.
• Establishes cleanup priorities and standards.
• Identifies potentially responsible parties and seeks to have them pay their respective share of cleanup costs.

In addition to payments by responsible parties, Superfund is supported by taxes assessed on particular industries.

States generally have their own systems for environmental cleanup programs. While many state programs follow the pattern of the federal Superfund system, other effective state remedies have developed. The most effective programs are those tying the requirements for cleanup to transactions involving the contaminated properties. For example, if a company seeks to transfer a property that is contaminated, the transaction may be delayed until cleanup measures have been put into place. Because of the financial pressures associated with these business transactions, buyers and sellers are more willing to address pollution problems in order to close the deal.

Permitting

Environmental permitting programs regulate activities deemed to have potentially harmful effects on the physical environment in which we live.

For example, federal and state statutes require permits for:

• discharges to the air of criteria (HC, NOx, SOx, CO, and PM) and non-criteria air contaminants (referred to as air toxics, e.g., ammonia)
• liquid discharges to bodies of water
• solid waste disposal such as landfills for industrial or municipal waste or facilities for the safe disposal of nuclear waste products

In addition State and Federal statutes set standards or emission limits for automobiles and other mobile sources. These regulations are enforced using periodic inspection schemes (“smog check”)

Federal, State and Local Statutes

• Several federal statutes regulate discharges to air, water, wetlands, and coastal areas. For example, the Clean Air Act, the Water Pollution Control Act, and the Resource Conservation Recovery Act regulate air, water, and land activities at the federal level.
• Most states have their own water, air, and land regulation permitting programs.
• Local municipalities will, primarily through zoning and similar statutes and ordinances, regulate the activities permitted in various areas and thereby regulating the impact of such activities on the local environment.

Permitting programs don’t just focus on activities harmful to the environment. Some federal, state, and local programs focus on designated types of locales or specific geographic areas for heightened environmental protection. These designated areas sharply limit the kinds of activities which may occur within their boundaries.

For example, federal and state programs for protection of "wetlands" define what constitutes "wetlands" and require landowners or developers of properties to identify "wetlands" areas on their property. An area that meets the definition of a wetland will be subject to special requirements including the requirement to offset or maintain the land area effectively prohibiting the use of wetlands.