Literary Resources

Vol. 28 No. 3

Reviewed by

JoAnne L. Dunec is a real estate and land use transactional attorney who is a shareholder in Miller Starr Regalia’s Walnut Creekoffice.

BOOKS

The RCRA Practice Manual

Theodore L. Garrett, ed. American Bar Association, Third Edition, 2013.

The federal Resource Conservation and Recovery Act (RCRA) regulates the management of hazardous wastes from cradle to grave—from the inception, through the life, and to the disposal of hazardous waste. RCRA is administered by the U.S. Environmental Protection Agency (EPA), but is largely implemented by the states. As noted in the introduction, “[t]he RCRA program identifies a broad universe of waste materials as hazardous and regulates the handling of these wastes by generators, transporters, and treatment, storage, and disposal facilities.” RCRA also “imposes corrective action requirements and provides standards for cleanup under the Superfund statute [(Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)) and] addresses the ongoing management of hazardous wastes at manufacturing plants and other facilities, thus affecting a large segment of businesses engaged in manufacturing.”

According to the editor, since publication of the first edition of The RCRA Practice Manual in 1993, the RCRA regulations have increased from 200 pages in the Code of Federal Regulations to more than 1,000 pages. The editor continues, “[t]his vigorous program of RCRA regulation resulted from increased public and congressional concern with hazardous waste beginning with the Love Canal episode, which also led to the passage of the Superfund law in 1980.

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The RCRA Practice Manual
The RCRA Practice Manual

As part of the introductory overview, the editor notes,

In 1984 Congress amended RCRA extensively in the Hazardous and Solid Waste Amendments of 1984 (HSWA). The HSWA authorized the regulation of underground tanks, the cleanup of contaminated areas of industrial sites not covered by the original law, and increased restrictions on the disposal of wastes on land. The amendments contain detailed provisions and establish strict guidelines.

As previously mentioned, RCRA is primarily implemented by the states, however notes the editor, “some states are not fully authorized to implement RCRA, and EPA has reserved the (controversial) right to overfile enforcement actions even where an authorized state has taken enforcement action.”

Following the introductory overview of RCRA in Chapter 1, the balance of The RCRA Practice Manual, written by twenty-eight practitioners, provides a comprehensive overview of RCRA. Chapter 2 outlines the relationship of RCRA with other laws, such as the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Toxic Substances Control Act, Hazardous Materials Transportation Act, RCRA’s overlap with CERCLA and a RCRA Corrective Action versus a CERCLA Response Action.

Recycling and the definitions of solid and hazardous wastes are addressed in Chapters 3 and 4. The obligations of generators and transporters of hazardous waste are examined in Chapters 5 and 6. Chapter 7 describes RCRA permits, their applicability and procedure for processing, as well as both standard and case-by-case conditions, special permits, permit modifications, permit duration, renewal and termination, interim status, and postclosure permits. Operating and design standards for treatment, storage, and disposal facilities and closure, post-closure and financial responsibility are addressed in Chapters 8 and 9.

Chapters 10 through 13 examine the regulation by RCRA of containers, tanks, incinerators, boilers, and furnaces; land disposal facilities; and land disposal restrictions. RCRA Corrective Action requirements are addressed in Chapter 13. RCRA’s regulation of underground storage tanks and nonhazardous waste is covered in Chapters 14 and 15. The final chapters address civil and criminal enforcement and the federal-state relationship under RCRA.


The Endangered Species Act

Sam Kalen and Murray Feldman, American Bar Association (ABA), Second Edition, 2012.

The Endangered Species Act (ESA), as noted by the authors, “is perhaps the ‘most comprehensive legislation for the preservation of endangered species ever enacted by any nation.’” As noted in the overview,

Congress’s “plain intent” when enacting the ESA “was to halt and reverse the trend toward species extinction, at whatever the cost.” Lately the Act has offered the polar bear as the iconic symbol of the efforts to address the Act’s conservation mandates.

As part of the Basic Practice Series published by the ABA, Endangered Species Act is “designed to introduce the reader to a particular statute and its regulatory program—in this case the ESA—and then offer citations and references that further inform the reader of how the Act and its regulations have been implemented.” The second edition has been updated by new authors, Sam Kalen, an Associate Professor of Law, and Murray Feldman, a private practitioner. The initial version, published in 2001 was written by Tony A. Sullins, an attorney-advisor for the U.S. Department of the Interior Solicitor’s Office. Abbreviations and acronyms are helpfully provided at the outset, rather than as an appendix.

The book begins with an Executive Summary, which provides an overview and the purposes of the ESA, as well as its basic structure. The listing of endangered species and critical habitat designation is addressed in Chapter 2, which now includes sections on listing criteria and best scientific and commercial data available, as well as sections on candidate species and economic analysis, which were not included in Chapter 2 of the initial version.

Chapters 3 through 5 address Section 7(a)(1) conservation obligations and recovery planning, Sections 9 and 11 cover prohibited actions and penalties, and Section 7(a)(2) consultation, including biological assessments, incidental take, and challenges to biological opinions. Chapter 6 (“Incidental Take Permits and Other Allowable Take”) has new sections addressing transferability, conservation banks, and the intra-agency Section 7 consultation requirement and the National Environmental Policy Act (NEPA).

The exemption process is addressed in Chapter 7. Federal interaction with states and tribes is examined in Chapter 8, with a new section covering the role of tribal governments, an important factor in many western alternative energy projects. Chapter 10 (“International Applications of the ESA”) also has two new sections covering the limits on ESA’s applicability and prohibited acts. Finally, Chapters 10 and 11 address experimental populations, including special rules with respect to such populations, and citizen suits, standing, and procedure.


Braiding Sweetgrass

Robin Wall Kimmerer. Milkweed Editions, 2013.

Braiding Sweetgrass is an exploration of scientific principles and indigenous thinking. The author, a trained botanist, is an enrolled member of the Citizen Potawatomi Nation and a SUNY Distinguished Teaching Professor of Environmental Biology. She introduces us to sweetgrass, Hierorochloe odorata, which, according to the author, means “the fragrant holy grass.” In the language of the Potawatomi, she continues, “it is called wiingaashk, the sweet-smelling hair of Mother Earth.” She describes Braiding Sweetgrassas

[A] braid of stories . . . woven from three strands: indigenous ways of knowing, scientific knowledge, and the story of an Anishinabeckwe scientist trying to bring them together in service to what matters most. It is an intertwining of science, spirit, and story—old stories and new ones that can be medicine for our broken relationship with the earth, a pharmacopoeia of healing stories that allow us to imagine a different relationship, in which people and land are good medicine for each other.

The book is organized in five parts, planting, tending, picking, braiding, and burning sweetgrass, through which the author not only takes us exploring through stories of sweetgrass and other plants from a scientific perspective and an indigenous viewpoint—describing similarities, as well as differences—but also accompanying her on her internal journey as she rigorously trains to become a botanist and eventually a professor, then returns to indigenous ways of thinking. Not only does she research through literature and experience but she also leads her ecology students to think both scientifically and more expansively and provides examples of scientific research regarding indigenous practices with respect to the relationship between plants and human activities.


For Future Environmental, Energy, and Resource Attorneys

The following is an illustrated children's book illuminating a momentous camping trip in what is now, perhaps as a result of the trip, Yosemite National Park.

The Camping Trip that Changed America: Theodore Roosevelt, John Muir, and our National Parks

Barb Rosenstock, illustrated by Mordicai Gerstein. Dial Books for Young Readers, a division of Penguin Young Readers Group, 2012.

Any fool can destroy trees. They cannot run away, and even if they could, they would still be destroyed—chased and hunted down as long as fun or a dollar could be got . . . It took more than three thousand years to make some of the trees in these Western woods—God has cared for these trees, saved them from drought, disease, avalanche . . . but he cannot save them from fools—only Uncle Sam can do that!

—John Muir, Our National Parks, 1901 Theodore Roosevelt, May 19, 1903

Lying out at night under those giant Sequoias was lying in . . . a temple grander than any human architect could by any possibility build, and I hope for the preservation of the groves of giant trees simply because it would be a shame to our civilization to let them disappear . . . We are not building this country of ours for a day. It is to last through the ages.

—Theodore Roosevelt, May 19, 1903

On March 14, 1903, President Theodore Roosevelt, an avid outdoorsman, wrote a letter to John Muir, the famous naturalist, and asked Muir to take him camping in California’s Yosemite wilderness. “I do not want anyone with me but you, and I want to drop politics absolutely for four days and just be out in the open with you,” the President wrote. Muir accepted the invitation and The Camping Trip that Changed America tells the story of the trip. According to the story, the President had become interested in Muir’s plea to save the wilderness, which was written at the conclusion of one of Muir’s books about his travels in California’s Sierra Nevada Mountains.

In mid-May, 1903, the President arrived and he and Muir journeyed on horseback to the Mariposa Grove of giant sequoias and camped under blankets at the foot of a mighty sequoia known as the Grizzly Giant, talking all the while. The following day they rode to a high overlook called Glacier Point, which provides a magnificent view of Yosemite Valley. That night’s campsite was high above the valley floor, and they awoke to “five inches of fresh snow” covering their blankets. The next day, they rode down into Yosemite Valley, surrounded by granite cliffs, including El Capitan, and the sheer face of Half Dome. The two camped one more night together. According to the story, Muir “talked to the President about life in the wilderness” and his concern about the destruction of the wilderness by ranchers, miners, and development, and said “Keep it wild and protect it forever.” They both “imagined a different future for America.”

The book concludes with an Author’s Note, which provides historical background about the camping trip. According to the author,

[T]here is little historical record of exactly what happened between the two men during the time they spent in camp. Except for three men who went along as packers and cooks, and brief encounters with reporters, Theodore Roosevelt and John Muir rode or hiked on their own for much of the time. . . . Roosevelt returned to Washington passionate about protecting wilderness.

The President used the Antiquities Act to declare “the first 18 Monuments, including Devil’s Tower, the Petrified Forest, Mount Olympus, and the Grand Canyon.” During his administration, “the government founded the first 55 bird sanctuaries and game preserves, added 148 million acres to the National Forest[s] and doubled the number of National Parks.” Although Muir and Roosevelt never met again, they exchanged letters for the rest of their lives.

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