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D.Rebuilding Non-Conforming Uses
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- E.Environmental Issues
- 1.Superfund Sites
- 2.Human Health Risks
- 3.Liability for Oil Spills
- 4.Solid and Hazardous Waste Disposal
- 5.Mold Issues
- 6.Water Pollution Issues
- 7.Air Pollution Issues
D.Rebuilding Non-Conforming UsesMost cities have buildings that do not conform to current zoning and other land use regulations because they were constructed before the land use regulation in question was adopted. This situation occurs most frequently in older towns and cities; New Orleans provides a good example. After such buildings have been damaged or destroyed in a natural disaster or fire, the issue arises whether the non-conforming buildings can be reconstructed. The question often is answered by local ordinances. For example, after the 1991 Oakland, Calif. fires, emergency orders permitted reconstruction of all non-conforming uses, even if the building had been completely destroyed.94 And after the 1994 Northridge Earthquake, the Santa Monica, Calif. City Council adopted the Earthquake Recovery Act95 to facilitate a streamlined building permit process for the repair and reconstruction of buildings damaged during the earthquake. The Earthquake Recovery Act allows reconstruction of nonconforming structures damaged by the earthquake, allows for an expedited review process, waives most development related fees and further exempts these projects from the environmental review process.96 Other ordinances permit reconstruction in the event of partial destruction of a nonconforming structure, but do not permit repair if the nonconforming building has been totally destroyed. In other jurisdictions, the issue has been the subject of litigation. Some courts have reasoned that when the building is lost, the owner is not penalized by losing a destroyed nonconforming use; therefore, the owner may not reconstruct the building. Other courts have allowed reconstruction if the expense of doing so does not exceed a certain percentage of the value of the structure, sometimes 50%.97 Two cases involving billboards provide examples. Clear Channel Communications had a non-conforming billboard in Myrtle Beach, S.C. that was completely destroyed by a hurricane; the court upheld a zoning requirement that prevented its reconstruction.98 The outcome was different when the cost of repair was smaller. In a similar situation in Minnesota, the local ordinance granted Clear Channel a right to repair a billboard when less than 51% of the replacement cost of the entire structure had been damaged.99
E.Environmental IssuesHurricanes Katrina and Rita and the flooding they caused provide numerous examples of environmental issues that arise from a disaster. The U.S. Environmental Protection Agency (“EPA”), the Louisiana Department of Environmental Quality (“LDEQ”) and the environmental agencies of other affected states conducted numerous investigations and waived a variety of requirements to assist residents, businesses and governmental agencies cope with the disaster. These included monitoring Superfund sites, assessing human health risks, responding to a major petroleum release, providing for disposal of solid waste and debris, dealing with mold, and responding to water and air pollution issues, as discussed more fully below. Waivers of various federal laws and regulations, permitted by existing laws, facilitated the response to environmental issues arising after the hurricanes. A report prepared for Congress by the Congressional Research Service of The Library of Congress, “Emergency Waiver of EPA Regulations: Authorities and Legislative Proposals in the Aftermath of Hurricane Katrina” (“Waiver Report”), discussed the authority for many of the waivers.100 As the report noted, the Stafford Act includes an exemption from the National Environmental Policy Act for various actions taken or assistance given under the sections of the Act providing for federal assistance, repair and replacement of damaged facilities and debris removal.101 The Stafford Act also permits federal agencies administering federal assistance programs to modify or waive administrative conditions for the assistance after a disaster.102 1.Superfund SitesThe EPA reviewed fifty-six Superfund sites in Alabama, Louisiana, Mississippi and Texas affected by Katrina and Rita to assess conditions at the sites. As of December 28, 2005, according to materials on the EPA’s website, the review found minimal problems with the treatment systems and other conditions at these sites.103 The EPA reviewed six Superfund sites in Alabama, and found no impact from Katrina. It reviewed seventeen sites in Louisiana affected by Katrina and Rita. In thirteen, it found no impact from the hurricanes or flooding; on four sites it is continuing testing but the impact on the sites appears minimal. It reviewed three sites in Mississippi effected by Katrina, and found no impact from the hurricane. Twenty-eight Texas sites affected by Hurricane Rita were reviewed. Sixteen sites had no visual impact from the hurricane and no further sampling was conducted. In eleven sites, sampling was conducted but results have not yet been posted on the EPA website as of this writing. One site was sampled and found not to be affected adversely by the hurricane. 2.Human Health RisksThe EPA and LDEQ and other state and federal agencies conducted extensive testing in New Orleans and Jefferson, Plaquemines and St. Bernard Parishes to determine the extent of risk to human health from the environmental contamination of air, land and water from Hurricanes Katrina and Rita and the flooding caused by breach of levees. A summary of the assessment, discussing risks from flood waters, air pollution and sediment, was released by the EPA and the LDEQ and is available on the LDEQ website.104 The EPA/LDEQ report concluded that exposure to flood waters and ambient air after the disaster did not raise environmental health concerns. While flood water samples contained elevated bacteria levels associated with untreated sewage, the sampling results for water pumped from New Orleans into Lake Pontchartrain were similar to results from samples of discharged storm waters from Orleans and Jefferson Parishes taken from 2001 through 2004. Because flood waters were removed by October 11, 2005, exposure even to the samples with high bacterial counts did not raise a concern. The results of ambient air quality sampling were typical for the region and were below levels of health concern. Hurricanes Katrina and Rita left approximately three million cubic yards of flood water sediment in New Orleans, the surrounding parishes and elsewhere along the Gulf Coast. Questions regarding risks to human health from the sediment were raised in news reports, particularly given that the dried sediment turns to dust when disturbed, making airborne dust an exposure pathway of concern. The EPA/LDEQ summary stated: “In general, the sediments . . . are not expected to cause adverse health effects provided people use common sense and good personal hygiene and safety practices.”105 Initially-high levels of fecal coliform bacteria and petroleum hydrocarbons were expected to naturally decrease over time. The report said that samples with levels of arsenic and a polynuclear aromatic hydrocarbon (a potential carcinogen that is a common product of combustion) above accepted background levels would be monitored. Newspaper accounts after the release of the report reflected concerns expressed by many residents and environmental organizations that the lead, dioxin, chromium, arsenic, polynuclear aromatic hydrocarbons and various petroleum hydrocarbons disclosed by the testing did pose a significant risk to human health. Much of the debate regarding the extent of risk to human health involved interpreting testing data, particularly whether the risk of chemicals of concern in the sediment was different from the risk from the “background levels” of the same chemicals in soil before Katrina, particularly arsenic and lead.106 3.Liability for Oil SpillsKatrina caused at least seven serious petroleum spills in Louisiana, releasing approximately 178,000 barrels, or about 7.5 million gallons, of oil. Several of the releases were kept within secondary containment structures (usually berms), but a few may have caused natural resources damage. However, Katrina did cause one major oil spill affecting residences when it dislodged a 250,000 barrel above-ground storage tank at the Murphy Oil facility in St. Bernard Parish, La.107 The tank at the time contained 65,000 barrels of mixed crude oil, of which 25,110 barrels, or 1,050,000 gallons, were released. The release affected approximately 1,800 homes in the vicinity, as well as canals and, probably, natural resources. Response actions taken by the EPA, the U.S. Coast Guard, the LDEQ and Murphy Oil recovered 18,000 barrels of oil as of December 7, 2005. Soil analyses found, in addition to various petroleum hydrocarbons, found polycyclic aromatic hydrocarbons (a possible carcinogen) and arsenic above background levels.108 Murphy Oil began settling claims of affected homeowners in late 2005. As of January, 2006, according to news reports, the spill had not been cleaned up in the affected residential neighborhood. By that time, several class action lawsuits had been filed on behalf of affected homeowners.109 It was also reported that Murphy Oil intended to defend against the lawsuits by asserting that the spill was an “act of God.”110 Several environmental statutes include a defense to liability for spills and other releases of hazardous substances caused by an “act of God.” For example, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA,” also known as “Superfund”) includes such a defense. To the extent that the release contained hazardous substances not within the petroleum exclusion, Murphy Oil faces liability under CERCLA Section 107(a) for response costs and damages. However, the “act of God” defense may exonerate Murphy Oil from liability under that provision. CERCLA Section 107(b) provides: “There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by – (1) an act of God; . . .” [emphasis added]. An “act of God” is defined to mean: “an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.”111 Hurricane Katrina may qualify as such an act of God if Murphy Oil can show that the hurricane was the sole cause of the dislocation of the oil tank and the resulting release, and that it did not fail to exercise due care. Several decisions interpreting the “act of God” defense show the difficulty in successfully asserting the defense, because the “act of God” must be the sole cause of the release and the damage. In one of the opinions regarding the Stringfellow Superfund site, the contention that heavy rainfall in 1969 and 1979 was a natural disaster constituting an act of God was rejected by the District Court, which found that the rains were “not the kind of ‘exceptional’ natural phenomenon to which the act of God exception applies,” were foreseeable, and any harm caused by the rain could have been prevented through the design and installation of proper drainage channels.112 A similar result was reached in U.S. v. Alcan Aluminum Corporation, which rejected a defense that the release in question was caused by Hurricane Gloria in 1985. Alcan had dumped approximately two million gallons of oily wastes containing hazardous substances down an air shaft leading to a network of mines and tunnels that drained into the Susquehanna River, and at least 100,000 gallons of the waste reached the river. In addition to noting that the hurricane was not the sole cause of the release because it could have been prevented had waste not been dumped into a tunnel system leading to the river, the court also found that the heavy rainfall caused by the hurricane was not the kind of “exceptional” event to which the defense applies, quoting the above language from the Stringfellow opinion.113 In another case, an Atlantic storm that was predicted by the National Weather Service and was known to the crew was not an act of God providing a defense to claims arising from loss of hazardous materials from a ship during the storm.114 Other federal statutes may impose liability on Murphy Oil, including liability for releases under Clean Water Act Section 311115 and liability as the owner of an “onshore facility” under Oil Pollution Act of 1990 Section 1002.116 Both statutes include an “act of God” defense. Clean Water Act Section 311(f)(1) includes a defense where the discharger “can prove that a discharge was caused solely by (A) an act of God, . . . ” and provides in Section 311(i) that a discharger who removes discharged oil or hazardous substances is entitled to recover removal costs if the “discharge was caused solely by (A) an act of God, . . . .”117 Decisions considering the Clean Water Act defense have found that spring runoff of melted snow, an underwater object struck by a vessel, thunderstorms, and soil settlement did not constitute acts of God supporting the defense.118 The Oil Pollution Act defense for costs of removal or damages under Section 1002 solely based on an “act of God” is a verbatim quotation of the CERCLA defense. The author has not found any reported decisions regarding the defense under the Oil Pollution Act.
In addition to collecting the huge quantity of debris, the major task facing those removing, transporting, sorting and ultimately receiving the waste is separating the waste stream into its components so that hazardous waste is sent to an appropriate facility, the various types of waste can be recycled to the extent possible, and in general the regulations on solid waste disposal are followed. Hurricane debris includes Freon, mercury and oil from appliances, furnaces and space heaters, asbestos, electronic equipment, PCBs and lead-acid batteries, all of which must be disposed of in proper facilities. Some of the debris (such as kitchen appliances) can be recycled. After Governor Blanco declared a state of emergency, the LDEQ provided detailed guidance on dealing with solid waste and other environmental matters in a Declaration of Emergency and Administrative Order (“Declaration”) issued on August 30, 2005 (the day after Hurricane Katrina struck), and amended by an Amended Declaration on September 3, a Second Amended Declaration on November 2, and a Third Amended Declaration on November 17, 2005. As of this writing, the amended Declaration was in effect through January 16, 2006. The Declaration, amendments and the LDEQ’s “Hurricane Katrina Debris Management Plan” are available on the LDEQ’s web site.122 The initial Declaration waived a number of regulatory requirements affecting solid waste disposal: (i) it permitted repairs to solid waste management facilities without prior notification to the LDEQ; (ii) construction and demolition debris that was mixed with other hurricane generated debris did not have to be segregated; and (iii) trees and other vegetative debris could be disposed of in either Type II or Type III (non-hazardous waste) landfills. The Declaration did require that hazardous waste, white goods (such as refrigerators, stoves, etc.) and rotting food be segregated, with the white goods to be recycled and the rotting food disposed of at a Type II landfill. The Declaration permitted authorized landfills, transfer stations, and staging areas to accept all types of waste. Finally, in addition to other matters, the Declaration waived the requirement of prior notification for emergency demolition and clean up of asbestos-containing materials. The Third Amended Declaration contained additional waivers. It allowed disposal and processing of solid waste at unpermitted sites, as approved by the LDEQ on a case- by-case basis. It permitted the disposal of construction and demolition debris in a Type III landfill, even if the debris contained trace amounts of hazardous waste or incidental amounts of asbestos-containing materials. It relaxed the training regulations regarding asbestos abatement contractors. The Third Amended Declaration gave detailed guidance on waste that should be separated and not placed in landfills. The Debris Management Plan included particular requirements for construction and demolition debris, vegetation, debris contaminated with oil or hazardous waste, vehicles, boats, large appliances, household hazardous waste, liquefied petroleum gas tanks, flood water sediment, and asbestos. Mississippi’s Department of Environmental Quality adopted similar provisions in Emergency Order No. 5062 05, issued pursuant to authority granted by Governor Barbour on September 13, 2005,123 and in addition allowed hazardous waste generators affected by the hurricane to store their hazardous waste for an additional ninety days. The EPA offered general guidance on dealing with solid waste after the 2005 hurricanes, which focuses on planning for dealing with debris after disasters.124 In addition, an EPA paper, “Planning for Disaster Debris,” offers helpful examples from the 1994 Northridge earthquake that occurred near Los Angeles, California; the 1993 floods in Lincoln County, Missouri; and the devastation from hurricanes Andrew and Hugo in the Southeastern United States and Iniki in Hawaii.125 One notable lesson cited in the paper: Los Angeles was able to recycle almost fifty-six percent of all materials collected, starting with the day of the Northridge earthquake, for less than the cost of disposal in a land fill. 5.Mold IssuesThe flooding caused by Hurricanes Katrina and Rita left thousands of buildings subject to mold infestation. The problems involved in dealing with mold have been widely discussed. Although exposure to mold is associated with various adverse effects on human health, there are no federal or state standards for indoor mold exposures. In October, 2005, the Centers for Disease Control and Prevention (“CDC”) published a report titled, “Mold: Prevention Strategies and Possible Health Effects in the Aftermath of Hurricanes Katrina and Rita,” available on the CDC web site.126 After noting that widespread exposure to mold in New Orleans and other affected communities was expected, the executive summary of the report made these points:
The report went on to state: “If left undisturbed, mold is generally not a significant health hazard for most people, and moderate exposure to mold will not adversely affect them. To prevent exposure that could result in adverse health effects from disturbed mold, it is good practice to implement environmental controls (e.g. isolating the contaminated area, ventilating the area, suppressing dust), use personal protective equipment, or both. How to protect individuals from exposure to mold depends on the extent of mold contamination in the building’s fabric or materials, the duration and type of activity undertaken in the mold-contaminated area, and the susceptibility of the individual entering the area to the various health effects.” The report discusses in some detail ways of preventing excessive exposure to mold, and cleaning homes and buildings. Cleaning heating, ventilating and air conditioning systems in homes and buildings affected by mold is a key part of such a task. The National Institute for Occupational Health and Safety (part of the CDC) published “NIOSH Interim Recommendations for the Cleaning and Remediation of Flood-Contaminated HVAC Systems: A Guide for Building Owners and Managers,” which is available on its website.127 Much of the debris created by Hurricanes Katrina and Rita is affected by mold, but that has not been an issue in connection with disposing of the debris because mold and moldy debris is not subject to regulation as a hazardous substance or waste. The Louisiana DEQ’s “Hurricane Katrina Debris Management Plan” does not treat construction and demolition debris infested with mold as an issue. In California, moldy demolition debris can be disposed of as a non-hazardous waste. 6.Water Pollution IssuesOne of the most pressing issues after Hurricane Katrina in New Orleans was removing the flood waters that covered as much as 80% of the City. As noted above, the flood waters were contaminated with a variety of wastes, sewage and chemicals. The obvious (and implemented) solution for submerged New Orleans was to pump the water into nearby Lake Pontchartrain. Of course, discharging contaminated water to other waters of the United States ordinarily would require a permit pursuant to the National Pollution Discharge Elimination System (“NPDES”) regulations under the Clean Water Act.128 According to the Waiver Report,129 the EPA determined that it had the authority to conduct a “removal action” under Section 311(c) of the Clean Water Act130 in accordance with the National Contingency Plan, which does not require a Clean Water Act permit.131 Even after the flood waters were removed, normal rainfall would raise issues regarding storm water discharges, which also are regulated under the Clean Water Act. The LDEQ’s Third Amended Declaration authorized the U.S. Army Corps of Engineers to discharge stormwater runoff from construction activity related to hurricane response without filing for a permit. It also relaxed stormwater permit rules regarding construction of temporary housing. The hurricanes undoubtedly had an effect on numerous NPDES permits. The EPA’s regulations provide that if an “upset” causes non-compliance with permit requirements, the “upset” is a defense to any action brought for non-compliance. An “upset” is defined as a temporary and unintentional noncompliance with permit effluent limitations arising from factors beyond the permittee’s control, such as an authorized discharge resulting from a power failure.132 As is noted in the Waiver Report, both the Louisiana and Mississippi Departments of Environmental Quality issued orders advising NPDES permit holders of the upset provisions under the regulations. Louisiana waived its requirement for notification of an upset within 24 hours after occurrence; the Mississippi order waived the notification requirement entirely.133 Another waiver noted in the Waiver Report concerns permits for placing dredged and fill material into wetlands and other waters of the United States under Section 404 of the Clean Water Act.134 Acting under its authority to approve special processing procedures in emergencies,135 the U.S. Army Corps of Engineers adopted emergency permit procedures for Louisiana and Mississippi within the Mississippi Valley Division of the Corps. These procedures allowed work that otherwise would require a Section 404 permit to be done without a permit if the party doing the work notified the Corps of the work before it started, gave the Corps a description of the work after it was complete, and consented to determination by the Corps if an After-the-Fact Permit would be required.136 The authorized work included work done for local, state and federal agencies, work on road and railroad transportation projects, and work by utility, electrical, telephone, pipeline and natural gas distribution companies.
In November, 2005, an environmental group criticized the EPA’s waiver of Clean Air Act rules, claming that the waivers contributed to high levels of benzene detected by the EPA in samples taken between September 15 and October 15, and in particular referring to a sample taken near a Shell Oil refinery on October 4, 2005 that contained ten times the Louisiana DEQ standard for air samples of benzene.139 As noted above, the EPA and LDEQ concluded that air sampling showed that air quality after Katrina did not pose a human health risk. Directory: resource -> collection collection -> Application for candidacy status collection -> A chapter of the kappa beta delta international honor society collection -> Example of a Letter of Application for Candidacy for Business and Separate Accounting* Program Accreditation collection -> Northeastern Council of Business Schools & Programs (October 14-15, 2016) collection -> Defense of Investment Professionals: Securities Litigation in the finra arbitration Setting By collection -> Airborne Topographic Lidar collection -> Jurisdiction over the Parties or Their Property (jop) collection -> Riparian Water Boundaries Titles and Rights Download 262.64 Kb. Share with your friends:
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