1989 Annual Meeting
American College of Trial Lawyers
November 3, 1989
New Orleans, Louisiana
Griffin B. Bell, FACTL
King & Spaulding
Daniel E. Boxer, Esq.
Pierce, Atwood, Scribner, Allen
Smith & Lancaster
Michele B. Corash, Esq.
Morrison & Foerster
San Francisco, California
John Quarles, Esq.
Venable, Baetjer, Howard & Civiletti
Judson W. Starr, Esq.
Venable, Baetjer, Howard & Civiletti
1989 Annual Meeting
American College of Trial Lawyers
November 3, 1989
New Orleans, Louisiana
FEDERAL ENVIRONMENTAL LAW STATUS 1989
Daniel E. Boxer, Esq.
Pierce, Atwood, Scribner, Allen, Smith & Lancaster
The current body of federal environmental law is comprised
of approximately 50 statutes, ranging from the Acid
Precipitation Act of 1980 to the Wood Residue Utilization Act,
also of 1980. Most of these statutes have been regularly
amended since their original enactment date. Also, in addition
to the federal requirements, environmental lawyers must deal
with a massive and growing body of state and local
environmental laws, regulations and ordinances.
Federal environmental-related regulations implementing the
statutes comprise approximately 41,500 pages of the Code of
Federal Regulations. These regulations are often revised, so
that one must proceed with caution before relying on
regulations promulgated within recent months. Attachment A
shows three examples of the revision or amendment history of
just a few of EPA's regulations. Attachment B is a list of
federal environmental statutes taken from the Table of Acts of
West Publishing Company's Federal Environmental Laws (1989).
The voluminous nature of these laws and regulations
requires a similarly massive human resources commitment. The
U.S. EPA alone employs more than 15,000 people.
Attachment C is a nationwide poll conducted this summer,
demonstrating that 80% of registered voters agree that
environmental standards cannot be too high and continuing
environmental improvements must be made regardless of costs.
Attachment D is the introduction to "Blueprint for the
Environment", a document submitted to President Bush by
numerous national environmental groups. This document
highlights much of what could be the potential future
environmental agenda of the Bush Administration.
Attachment E comprises several newspaper articles
illustrating national and international environmental concerns
as well as what the future holds for environmental lawyers.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS FOR OWNERS AND OPERATORS OF
PERMITTED HAZARDOUS WASTE FACILITIES
(40 CFR 264; 45 FR 33221, May 19, 1980, Effective November 19, 1980; Revised
as shown in Volume 40, Code of Federal Regulations, July 1, 1985; Amended by 51 FR
16443, May 2, 1986, Effective October 29, 1986; 51 FR 25354, July 11, 1986, Effective
September 9, 1986; 51 FR 25470, July 14, 1986, Effective January 12, 1987; 51 FR
40636, November 7, 1986; Corrected by 52 FR 21014, June 4, 1987; Amended by 52 FR
25787, July 8, 1987; 52 FR 25946, July 9, 1987; 52 FR 44320, November 18, 1987; 52
FR 45797, December 1, 1987; 52 FR 46963, December 10, 1987; 53 FR 27164, July 19,
1988; 53 FR 31211, August 17, 1988; 53 FR 33950, September 1, 1988; 53 FR 34086,
September 2, 1988; 53 FR 37934, September 28, 1988; 53 FR 39728, October 11, 1988,
Effective April 11, 1989; 54 FR 26647, June 23, 1989; 54 FR 33393, August 14, 1989)
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS
DESIGNATING AREAS FOR AIR QUALITY PLANNING
(40 CFR 81; 35 FR 22421, November 25, 1971; Amended as shown in Code of
Federal Regulations, Volume 40, Revised as of July 1, 1988; Amended by 53 FR 27347,
July 20, 1988; 53 FR 34508, September 7, 1988; 53 FR 38725, October 3, 1988; 53 FR
50212, 50214, December 14, 1988; 53 FR 52174, December 27, 1988; 54 FR 5238,
February 2, 1989; 54 FR 8323, February 28, 1989; 54 FR 13186, March 31, 1989; 54
FR 14959, April 14, 1989; 54 FR 15185, April 17, 1989; 54 FR 18503, May 1, 1989; 54
FR 21063, May 16, 1989; 54 FR 21219, May 17, 1989; 54 FR 21906, May 19, 1989;
Corrected by 54 FR 22054, May 22, 1989; Amended by 54 FR 26377, June 23, 1989;
Corrected by 54 FR 26466, June 23, 1989; Amended by 27343, June 29, 1989; 54 FR
31526, July 31, 1989)
ENVIRONMENTAL PROTECTION AGENCY NATIONAL
PRIMARY DRINKING WATER REGULATIONS
(40 CFR 141; 40 FR 59565, December 24, 1975; Amended by 41 FR 28402, July 9,
1976; 44 FR 68641, November 29, 1979; Corrected by 45 FR 15542, March 11, 1980;
Amended by 45 FR 57342, August 27, 1980; 47 FR 8998, March 3, 1982; Corrected by
47 FR 10998, March 12, 1982; Amended by 50 FR 46900, November 13, 1985; 50 FR
47155, November 14, 1985; 51 FR 11410, April 2, 1986; Corrected by 51 FR 24328,
July 3, 1986; Amended by 52 FR 20674, June 2, 1987; 52 FR 25712, July 8, 1987; 52
FR 41546, October 28, 1987; 53 FR 5146, February 19, 1988; Corrected by 53 FR
25110, July 1, 1988; Amended by 53 FR 37408, September 26, 1988; Corrected by 54
FR 15186, April 17, 1989; Amended by 54 FR 27526, 27562, June 29, 1989; 54 FR
30001, July 17, 1989)
FEDERAL ENVIRONMENTAL STATUTES
Acid Precipitation Act of 1980 [APA ] (42 U.S.C.A. 8901 to 8912)
Act to Prevent Pollution from Ships [APPS 5 -] (33 U.S.C.A. i 1901 to
Agricultural Act of 1970 [AA ] 16 US.CJ.A. 1501 to 1510)
Asbestos Hazard Emergency Response Act of 1986 [ee Toxic Substances
Control Act I 201 to 214 (15 U.S.C.A. i 2641 to 2654)]
Atomic Energy Act of 1954 [AEA -] (42 U.S.C.A. 2014, 2021, 2021a,
2022, 2111, 2113, 2114)
Aviation Safety and Noise Abatement Act of 1979 [ASNAA ] (49 App.
U.S.C.A. 2101 to 2125)
Clean Air Act [CAA ] (42 US.CA. 1 7401 to 7642)
Clean Water Act [see Federal Water Pollution Control Act]
Coastal Zone Management Act of 1972 [CZMA ] (16 U.S.C.A. 1451 to
Comprehensive Environmental Response, Compensation, and Liability Act of
1980 [CERCLA ] (42 US.C.A. 9601 to 9675)
Emergency Planning and Community Right-To-Know Act of 1986 [EPCRTKA
_] (42 U.S.CA. if 11001 to 11050)
Endangered Species Act of 1973 [ESA ] (16 U.C.A. if 1531 to 1544)
Energy Supply and Environmental Coordination Act of 1974 [ESECA ]
(15 U.S.C.A. 791 to 798)
Environmental Quality Improvement Act of 1970 [EQIA I ] (42 U.S.CA.
5 4371 to 4375)
Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA -1] (7 U.S.C.A.
5 136 to 136y)
Federal Land Policy and Management Act of 1976 [FLPMA ] (43
U.S.C.A. i 1701 to 1784)
Federal Water Pollution Control Act [FWPCA ] (33 US.C.A. 1251 to
Forest and Rangeland Renewable Resources Planning Act of 1974 [FRRRPA
o -..] (16 U.S.C.A. i 1600 to 1614)
Forest and Rangeland Renewable Resources Research Act of 1978 [FRRRRA
S_] (16 US.C.A. 1641 to 1647)
Forest Ecosystems and Atmospheric Pollution Research Act of 1988 [see Forest
and Rangeland Renewable Resources Act of 1978 1 3 (16 U.S.C.A. 1641)]
TABLE OF ACTS
Geothermal Energy Research, Development, and Demonstration Act of 1974
[GERDDA ] (30 U.S.C.A. 1101 to 1164)
Global Climate Protection Act of 1987 (15 U.S.C.A. 2901 note)
Hazardous Substance Response Revenue Act of 1980 (see 26 U.S.C.A. 4611,
4612, 4661, 4662)
Lead Contamination Control Act of 1988 [see Public Health Service Act
1461 to 1465 (42 U.S.C.A. 300j-21 to 300j-25)]
Low-Level Radioactive Waste Policy Act [LLRWPA ] (42 U.S.C.A.
2021b to 2021d)
Marine Protection, Research, and Sanctuaries Act of 1972 [MPRSA ] (33
U.S.C.A. 1401 to 1445)
Medical Waste Tracking Act of 1988 [see Solid Waste Disposal Act 11001 to
11012 (42 U.S.C.A. 6992 to 6992k)]
Mining and Mineral Resources Research Institute Act of 1984 [MMRRIA
_] (30 U.S.C.A. 1221 to 1230)
Multiple-Use Sustained-Yield Act of 1960 [MUSYA ] (16 US.C.A 528
National Climate Program Act [NCPA ] (15 US.C.A. 2901 to 2908)
National Environmental Policy Act of 1969 [NEPA ] (42 U.S.C.A.
4321 to 4370a)
National Forest Management Act of 1976 [see Forest and Rangeland Renewa-
ble Resources Planning Act of 1974 2, 13 to 16 (16 U.S.C.A. 1600,
1611 to 1614)]
National Ocean Pollution Planning Act of 1978 [NOPPA ] (33 U.S.C.A.
1701 to 1709)
Noise Control Act of 1972 [NCA ] (42 U.S.C.A. 4901 to 4918)
Nuclear Waste Policy Act of 1982 [NWPA ] (42 US.C.A. 10101 to
Ocean Dumping Ban Act of 1988 [see Marine Protection, Research, and Sanc-
tuaries Act of 1972 104B, 104C (33 US.C.A. 1414b, 1414c)]
Organotin Antifouling Paint Control Act of 1988 [OAPCA --] (33 U.S.C.A.
2401 to 2410)
Outer Continental Shelf Land Act Amendments of 1978 [OCSLAA ] (43
U.S.C.A. 1801 to 1866)
Public Health Service Act [PHSA ] (42 U.S.C.A. 300f to 300j-11)
Renewable Resources Extension Act of 1978 [RREA ] (16 U.S.C.A.
1671 to 1676)
Safe Drinking Water Act [see Public Health Service Act 1401 to 1451 (42
U.S.C.A 300f to 300j-11)]
Shore Protection Act of 1988 [SPA ] (33 US.C.A. 2601 to 2609 & 2621
TABLE OF ACTS
Soil and Water Resources Conservation Act of 1977 [SWRCA .] (16
U.S.C.A. 2001 to 2009)
Solid Waste Disposal Act [SWDA ] (42 U.S.C.A. 6901 to 6991i)
Surface Mining Control and Reclamation Act of 1977 [SMCRA ] (30
U.S.C.A. 1201 to 1328)
Toxic Substances Control Act [TSCA ] (15 U.S.C.A. 2601 to 2654)
United States Public Vessel Medical Waste Anti-Dumping Act of 1988
[USPVMWADA (33 U.S.C.A. 2501 to 2504)
Uranium Mill Tailings Radiation Control Act of 1978 [UMTRCA ] (42
U.S.C.A. 7901 to 7942)
Water Resources Research Act of 1984 [WRRA ] (42 U.S.CA. 10301 to
Wood Residue Utilization Act of 1980 [WRUA ] (16 U.S.C.A. 1681 to
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Advice to the President-Elect from America's
Defenders of Wildlife
Environmental Policy Institute
Friends of the Earth
Global Tomorrow Coalition
Izaak Walton League
National Audubon Society
National Parks and Conservation Association
National Wildlife Federation
Natural Resources Council of America
Natural Resources Defense Council
The Oceanic Society
The Wilderness Society
Union of Concerned Scientists
Zero Population Growth
Kennedy P. Maize
BLUEPRINT FOR THE ENVIRONMENT
1400 16th S N. W
WashNgtEM, LC 236
Second Pinding Fibuwy 1989
Blueprint For The Environment
1400 16th Str4t, NW Washington, D.C. 20036 (202) 797-6650
Dear President-Elect Bush:
Congratulations on your election by the American people to
the nation's highest office. You have attained the most important
leadership position in the world, and have an opportunity to ac-
complish enormous good.
As President, you will be able to provide national and interna-
tional leadership concerning the great issues of our time. We
believe that environmental problems rank with the threat of
nuclear war as the most serious of all the challenges we face. It is
essential that we address and solve problems like global warming
of the atmosphere, loss of tropical forests and the living species they
contain, and the myriad of assaults on our nation's land, air, and
water before they cause irreparable harm. This will happen only if
you provide strong, sustained leadership.
Recognizing this, America's environmental community came
together a year ago to prepare for your consideration a "Blueprint
for the Environment": comprehensive recommendations concern-
ing the actions our federal government should take to address these
problems. The Blueprint, consisting of over 700 specific recom-
mendations, has already been delivered to your representatives.
This report highlights our major themes.
We urge you to give the most serious consideration to these
carefully prepared suggestions. We are eager to meet with you and
your representatives to discuss them. Our groups-with a total of
more than 6,000,000 members-are ready to assist in their im-
We ask you to provide leadership in meeting these challenges
and fashioning a brighter tomorrow. The welfare of this and all fu-
ture generations hangs in the balance.
Thomas B. Stoel, Jr. Cay E. Peters
Chair Executive Director
Our Planet in Peril 6
Our Responsibility 7
ACTIONS TO PROTECT THE ENVIRONMENT 8
Global Warming and Ozone Destruction 9
Protection of the Oceans 15
Environmentally Sustainable Development 17
Conserving the Earth's Plant and Animal Species 19
Our Land 21
Population Growth 27
PREPARING OUR GOVERNMENTFORACTION 29
Appoint the Best People 29
Establish an Effective Presidential Staff 30
Deliver an Environmental Message Early in 1989 30
Propose a Fully Adequate Environmental Budget 30
Provide International Leadership 31
Create a New Department of Environmental Protection 31
Convene a White House Conference on the Environment 32
Ensure Foresight in Federal Decisions 32
Blueprint for the Environment is a cooperative effort by America's
environmental community to develop comprehensive recommendations
to be presented to the President-elect following the 1988 election concern-
ing the actions our federal government should take to solve the environ-
mental problems that confront the United States and the world. The
participants include the organizations listed below, together with staff
members from many other organizations and concerned individuals.
More than 700 detailed recommendations, assembled by cabinet
department or agency, have already been delivered to representatives of
the new administration. This report provides an overview of the major
themes and broad recommendations. Most of the organizations which
assembled the Blueprint do not deal with all the issues discussed in this
report, and cannot endorse every recommendation. However, they all
agree with its overall thrust and the urgent need for additional federal
actions to address environmental problems.
We would like to acknowledge the following people and organizations
for their contributions to the development of the Blueprint:
Thomas B. Stoel Jr, Chair, Natural Rsource Defense Council; Jan Hartke,
Vice Chair, Global Tomorrow Coalion; William Howard, Vice Chair, National
Wldlife Federaion; Tina Hobson, Personnel Chair, Renew America; Elizabeth
Raisbeck, Development Chair,NationalAudubon Socieday, Mike Cark,Enonmen-
tal Policy Instiate; Cynthia Wilson, Aieds of the Ear; Richard Ayres, Naual
Resources Defense Council; Ruth Caplan,Envronm tl Action; Peter Coppelman,
The WJldemss Socey Cifton E. Curtis, The Oceanic Soiey, M. Rupert Cutler,
Defenders of Wildlfe; Christopher Flavi, Wbrldwuach Institute Robert L. Herbst,
7out Unlmited; Jack Loreaz, frhk Waiton League; Michael McCoskey, Sies
Car,; Bob Plard, Union of CnceedScend tr, Paul Pritchard NationalPaor and
Conservation Associaion; Suan Weber, Zoo Fpuation Growh; Andrea Yank,
Natural Resources Cuncil ofAmica.
TASK FORCE CHAIRPERSONS
INERNATIONAL: Thomas B. Stoel Jr, Natural Resources Defense Council;
AGRICULTURAL CONSERVATION: Justin Ward, NaalResources Defense Council;
FOREST SERVICE: Barry Flamm, The Wilderness Society, GENETIC ENGINEERING:
Jane Rissler, PhD, National Wdlife Federation; OCEANS AND COASTAL Clifton E.
Curtis, The Oceanic Society DISARMAMENT Shira Flax, Siera Club; ENVIRONMEN-
TAL EDUCATION: S. Douglas Miller, PhD, National Widlife Federadon; ENERGY:
Ruth Caplan, Environmental Action, Christopher Flavin, Worldwatch Institute;
POPUATION: Patricia Baldi,NationalAudubon Society, Susan Webe, ZeroPopula-
ton Growth; BUREAU OF LAND MANAGEMENr: Johanna Wald, Natural Resources
Defense Council; LAND LAW: Durwood Zaelke, Sierra Club Legal Defense Fund;
CRmcAL ECOSYSTEMS: William Lienesch, National Parks and Conservation As-
sociation; FISH AND WL.DIFE : William C. Reffalt, The Wildeness Society, J. Scott
Feierabend, National Wlddlife Federation; MINERALS POUCY: Philip M. Hocker,
Minerals Policy Center; NATIONAL PARK SERVICE: T Destry Jarvis, National Parks
and Conservation Association; WATER RESOURCES POLICY: David R. Conrad,
Fends oftheEardh, Edward OsanNational WdlifeFederon; WILD AND SCENIC
RIVERS: Kevin Coyie,Amenican Rivers GRAZING POLICY: Maitland Sharpe, Iaak
Walton League; TRANSPORTATION: David G. Burwell, Rails-To-Tails Conservancy;
DEBT FOR CONSERVATION: Barbara J. Bramble, National Wdlife Federation;
MULTILATERAL DEVELOPMENT BANKS: Stewart Hudson, National Widlife
Federation; CLEAN AI: Richard Ayres, Naual ResourcesDefense Counl; CLEAN
WATER: Robert Adler, Naral Resources Defense Council; GROUNDWATER: Erik
Olson, National Wdlife Federaion; PESnCIDE Maureen K Hinkle, National
Audubon Society, Janet S. Hathaway, Ntural Resources Defense Council; SOLID
WASTE: Ruth Lampi, Envionmental Action, Cynthia Pollock-Shea, Wordwatch
Instiate, Jeanne Wirka, Environmental Action; TOXICS: Jacqueline M. Warren,
Natural Resources Defense Council; COUNCIL ON ENVIRONMENTAL QUALITY:
Michael McCloskey, Siera Club; BUDGET Brent Blackwelder, Environmental
Policy Insftiute; FORESIGrr Donald R. Lesh, Global Tmorrow Coaliion; CONSER-
VATION ADMNISRATIVE MATrERS: Joel Thomas, National Wldlife Federation.
Clay E. Peters, Ecuive Directr; Try Kilpatrick, Assint Director, T Allan
Comp, PhD, Managing Editor, Ric Barrick, Talent Bank Coordinator, Edward J.
Barks, Director of Communicaions; Kevin D. Kilpatrick, Project Assisant
Catherine I. Connor, ProjectAssistt.
Finally, the participants wish to express their deep appreciation for the
encouragement and generous financial support of the following donors:
Beldon Fund; Janelia Foundation Jesse Smith Noyes Foundation; Mr. John R.
Harris IV; Otinger Foundation; The Educational foundation of America; The
Schumann Foundation; The W. Alton Jones Foundation, Inc.; Wallace Genetic
Of course, these donors are in no way responsible for the content of
OUR PLANET IN PERIL
Life in this vast, mysterious universe, science tells us, is rare, perhaps
unique. The earth is a sparkling island of life in a dark, inanimate sea.
Today, this fragile island that supports and sustains us is in peril,
threatened by the very life it nurtures.
Humankind, the most highly evolved species of life on earth, has the
power to destroy the earth. Not just in a nuclear holocaust, but in less
cataclysmic, but no less significant, ways. Our small, seemingly insignificant
acts of everyday existence threaten to overwhelm the earth's fragile and
finite life support systems.
The world and our nation face environmental threats of unprece-
Global warming of the atmosphere threatens to devastate agricul-
ture, forests, and coastlines around the world.
Depletion ofthe strtospheric ozone layerwill damage agriculture and
marine life and cause an epidemic of skin cancer.
Oceanpollution is killing sea creatures and littering our coasts with
*Enviromnental degradation in developing nations threatens the
economicwelfare, the health, and the very survival of hundreds of millions
of people and the functioning of ecosystems of worldwide importance.
Loss of tropicalforests and other wildlife habitats threatens to extin-
guish forever one-fourth of all the plant and animal species on the earth
by the end of the century.
SPopulation growth is a major contributor to all these global environ-
US. population pressure threaten the environment all across our
Wasteful and environmentaUy hamnfi use of energy contributes to
many other environmental problems, costs U.S. consumers more than a
hundred billion dollars a year, and reduces our national security.
Add ran and other forms of air pollution are stunting our forests,
sterilizing our lakes, killing our fish and assaulting our lungs.
Water pollution makes drinking water unhealthful, harms aquatic
life, and deprives us of major opportunities for recreation.
Uncontroill taic substance are poisoning our dtizens and the
environment. Solid waste dumped in landfills contaminates groundwater
and emits toxic substances when incinerated.
Soil loss degrades our land base, reducing productivity in agricul-
ture, forestry, and grazing.
Inadequate management offederal lands causes not only environ-
mental degradation but loss of precious recreational opportunities.
Each of these problems represents a profound threat in its own right.
Taken together, they constitute one of the greatest crises ever faced by our
nation and all of humanity.
Our future is at stake. We face critically important choices: whether to
take the actions necessary to ensure the livability of our planet or to stand
by and watch the decline of the natural systems on which all life depends.
Our nation is one of the wealthiest and most powerful on earth. We
have the power and the responsibilities of a leader. If we fail to act,
we can't expect others to do so.
A special responsibility falls on our federal government. Many of the
problems we face are global and national in scope. They require federal
action and federal leadership.
Our new President and his administration must act very quickly if our
nation is to fulfill its responsibilities. We cannot afford to wait. Each week
and month of inaction undercuts a future of comfort and harmony with the
earth, and brings ever closer a future that jeopardizes life itself.
Realizing this, America's environmental community came together a
year ago in a coordinated effort to develop a "Blueprint for the Environ-
ment": recommendations to the President-Elect and his top officials con-
cerning the actions needed to address the full range of environmental
problems we face. Those recommendations more than 700 of them -
have already been delivered to representatives of the new administration.
Our recommendations are directed to our new President, not to the
Congress, the states, or individual citizens. Obviously, all of us need to act
if environmental problems are to be solved. But in many areas the miss-
ing ingredient is Presidential leadership. Most of the actions we recom-
mend can be taken by the President without the need for new legislation.
In others, we recommend that the President make proposals for new laws
and work with the Congress to get them enacted.
This is very much a mainstream document Only two years ago, the Na-
tional Governors Association unanimously adopted major policy positions
concerning the global environment which are very similar to what we
A central theme of our recommendations is the necessity of better
stewardship. Our power to alter the environment is so great today that it
can diminish the capacity of our planet to sustain life. This power carries
with it a solemn obligation to safeguard the earth's natural systems and the
life that depends on them.
A corollary principle is that we must look ahead and take early actions
to prevent environmental harm. We cannot rely, as we have too often in
the past, on tardy efforts to clean up or mitigate damage that has already
occurred. Prevention is wiser and less expensive than cure. Some kinds of
harm the loss of a whole species of life, for example can never be
cured. And every day that we postpone corrective actions increases the
cost and difficulty of the actions we ultimately must take.
The magnitude of the problems we face makes it plain that our nation
has not fulfilled its obligation of responsible stewardship. The central
thrust of our recommendations is that our new President and his ad-
ministration must make sure that we fulfill that obligation from now on.
There is also an important role for education. Public knowledge, un-
derstanding, and support are essential for progress in improvingthe quality
of our environment While the President and the Congress possess the per-
suasive and legal powers to lead the nation, its citizens are not likely to fol-
low willingly if they do not understand and support the directions of their
*44Paa Sond Class Poe Pad
Portland, Maine, Friday 14, Jl14
Los Angl mes
PARIS t is billed as th 19th
annual economic summit of the
leaders of the seven largest lndus-
trial democracies, but this year
session Saturday and Sund is
likely to focus more o environ-
mental issues than the economy.
Although there are plenty at
International economic problems to
grapple wth President Buh and
the leaders o the six other nations
lack both the money and the polio
cal will to do much about them. So
for the record, they are mayig that
the glob economy doing well
and does not eed any tiker
"The truth of the matter i that
economic conditions around the
world are very, very good, taking
the broad view over time," U.
S .c&ta of the Trpaur Nicbolas
Bdy id laNt week. You doal
want to change throttle settings
Instead, this will be the TYea o
the Environment or, at least the
ya of talking about environmea
tal issues according to the
advance blling that oicals of the
even participating countries h
provided over the t few weeks.
William E y, administrator
of the Environmental Protection
Agency, told reporters last week
that tere is even something of a
race ... by some a the economic
summit participants to'be ... the
An advance draft oathe comma-
e that tim leaden rs expect
tossue at the su t's nd Sd
declares that "decive action
urgently needed to understand and
protect the Earth's ecological
With Bush eager to be seen a
the "environmental president,"
U.S. omcitals say that t want he
Paris summit to'ay the ground
work" or further action at net
Clear's economic summt, which will
be held ia the United States.
It is time that summit address
our natural heit, and lt Paris
then be know summit which
accepted the environmental dl.
President Bush leans to ear
Image," ush said n a news confer
peace before e left Washington or
Poland and Hungary late last wk.
"This is basically an agenda-set-
ting summit" aid Robert D. Ho
mats, a former State De
economic strategist and now vice
chairman of Gold SachIs lter
national, the New York investment
. Hie summit rotates every
with ach country th
States, Japan, W Germany, Brt-
Portland, Main, Wednesday, July 19, A89
WDi /Nd.d ..1
Second cksu polom pod
Thornburgh: Polluters beware
Administration to act,
attorney general says
SOUTH PORTLAND U.S. Attorney General
Richard Thornburgh told a district attory group
today that his department will ar vy pro
cute polluters and urpd lodal prioMcutors total tb
Speaking to the National District Attory Asso
elation conference here Tornburgh sad poUution I
"not jut an unfortunate byproduct of an Industrial-
seed America It Is not somthlngthatjut happen
It's a crime.*
Thornburg said President Gerge Bud' pled
to be "the environmental preside would be
backed up by both criminal procutom and other
action against polluter.
"Make no mistake, this Is not retorcal overstate.
Sent. This administration has a s ncere and substan-
Stve commitment to preeving the health of our
environment hrou the actions of every appropri-
ate department d cy, with the Department of
Justice at the foreroot of many of the efforts." ha
In response to ocean dumpi the Justice dart
meant has created what Toburgh called our
environmental SWAT team." The group of lawyers
and regulatory experts is working to better coordi.
ate the efforts of the Envronmental Protection
Agency, the Coast Guard d other state and federal
agencies be said.
The Justice Department also Is pur possible
criminal and civil action In two of the most-recent
environmental disasters, radioactive pollution at the
Rocky Flats nuclear weapons plant near Denver and
the o ll the aExon Vaides In Prince William
A number of federal agend re Investigating
negligence at Rocky Flats. Toburg said, and the
Justice Department s pursuing criminal and civil
Investigations against Exxon and Its employees la
connection with the Valde spilL
Attorney General Richarld Tornbuh calls for tou
proecution of poUuters while displaying a issue
ewsweek with a cover story t env m t.
MONDAY. MAY 22. 1 99
Big business seeks
By .RoU SanuN
so0 MAN tlawyrae m alvolved. a
high aebool udmart had to beo m
vte r to as eouo to at them a
Nearly M attor uy SPrme tLhe e
lin i the defoeae amout I tna
ac oma peaen aga lat a po tibe
ulmos tn elaiom. .ab Oln Co. waoed
lanuanee poll to -vear deaup
momt for a hamaodom wae asit ta
potted mnaufacturia oerMon at
Ne Momma Aramnal nmr De n
A, unusual u the attory' dark-
natted pruem may have bh at
ruoetmor Hih m lhol a e a Mat
ounty. Calt., however, tN owa ly
Ili* rio at a wideepread phm e-
ae about whlc lgal reruitun am
S aoin 4T lawy er are beig nae-
ad by big buldnea- to handle vlirea.
matl law" wark. Aad the dmmaed by
mineyed Imterestu tor r evr
m mtal law at arm to pretet ther
amuet. prttieuary to matthoner tvv-
San haaarwdou wagee. o lkyreei
with no oiling to might.
*Ivy major lanw arm the UVA h
looking to epand Is anviam al
law prate." amoarding to 11i hme.
gai. aoar vim0 preidest a the Wah-
* tota. DC.*baed Marketaoare e.
am ai teruatoual mareuotla aeato
unting far that hao a arom emvBrouw
meatel lasw searinerg remlhs. Amn
auy Mr. Wuaga "f they dent al-
trymsln a e m m d
h ciaratlses me *** by h
me rsm OmI tb he m y. The
hie oarpitr ng envirmm"l law.
yrie haws moreafed m percent to
wpre to the pat U meHme. My"
DoimNe DeaMn at the Angemal-
buad mb Udd., a mearb am Opu
elallalag i law eletnee ad
evronmental health. Many -la
farm ha a lot mue wrk tham they
ke whvat to do wtth right o I.
Amd If flrme mt hav that aor
they wat Ia. aym L ThOrtom of
AttrMey PlaScemets Iatermatlioal
la. Is tLo Angele. Their hope i to
serve oMnent' iwrrming envirmM
Sul anee, uamrding to Ms. Thursm.
Their ter. ao adds. lh that. if thw
mods aren't met. Ct will move to
other -BTra praete frms that -am
Ofr tllervoe evironan al worl.
New Tork's Sbea & Gould i aemm
th many l rm rempoindi n th em-
ettitven a eartrvirmental law.
Yes, Environmental Law Is
This Year's Hottest Practice
Co-t-nrom pe- I
Norman W. RnBa a, trmer amo-
ate counsel of the Ford Motor Co.
rmntly joined 8be & Gould as part
er in charge of a newly rated envi-
roamental law practice group. New
Tork's Willkle Farr & Gallagher
FPeruary announced t had laughed a
new envro-meal practice roup In
Wahlinton. DC. At the mme time.
Chbcago's Katie, Muchin & Zavil a -
mounaed en expeason of its eanvir m
mental law group.
And. on the Wat Coast. Bn Frantc-
co's Hller, Birman, White & McAu-
life ha just added two air polution
apedallt to Its Los Angeles ofce -
partnr Steven A. Broll and special
coumel Charles .Timma Jr. both for-
merly with Lao Angeles' Richard*s
Watson and Gershon. Prom two attar
nay la 319. the firm's environmental
practice frp now U a tornMy
according to partner Peter H Weinar.
To meet the need for Mnramentl
law speciallts, the number of private
attorney i the field bha bMa expand-
Although eIronnetal law as A
specialty essentially wv barn only
about 20 year ago. observers' estimate
today's total number of specallats at
about 20.000. Only about M00 to ,000 of
thee attorneys a thought to be work-
in i the public ateret bar serving
orgaulsatlons ech as the aerra Club
the Audubon Society and the National
Reource Defense CounciL
In New York state altes the bar'
environment law sectoin, established
in 29U. bad 71 lawyers In 1. Today,
2UN attorneys are section member
bSum Islam Demad
But even with all them environmen-
tal attorneys, the supply of trained spe-
clalists is falling tar short of the
private sector's sudden. natens de-
mand. say Sylvia Coulter of Coulter
Kuig Ltd. a Boston-baed legal re-
cruting firm. As a reult, many re-
crulters say there in a lot at movement
between law irm. Some firms aso
are seeking candidates outelde the tra-
dtional law firm path and compensa-
tieo for those with eperiee is high.
Betty-Jane "J.." Kirwan joied IM
Angeles' Lathem & Watkns In March
au a partner. Previouly.e pt five
years as a name partner at an environ-
mental boutique she helped to found.
Ioe Angeles' MClintock, Kirwan. Ben-
aboot Rochfort and Weeton.
There are fantasic opportuntie. It
mane me that there are Still o few
environmental law expert" she ays.
A number of firms have bolstered
their xprtee n virometal law
by hiring attorneys with established
government careers. Philadelphia's
Dechert, Price & Rhoads persuaded
Thomas L Adams Jr. to leave hil post
as altant administrator In the Evi-
rommental Protection Agency' Offie
of Enrernement and Compliance Moal-
toring and in February be became a
partner it the firm's Washinaton DjC.
The relative abortage of experienced
environmental attomey ia much that
Mr. Henegan claim be can place any
good sabth-year aueciate who has a
mixture of environmental litigation
and regulation ounelln experience
at a salary of 0.000 within 30 day.
"In New York. I could probably gt you
125,000 and from there you can name
the price," he add. "lMoney It never
supertad Creted ed
Ask environmental lawyers why cor-
porate America suddenly needs so
many of them and immediately they
A tremendous amount and varetr of
legal work has been gueratd partic-
ularly In the pat two years, by the
1IM law known by the acronym CIR-
CA the Coprehewv Environ-
mental Responee Compensation and
Liability Act. That law created a fd
to clean up waste astes and to ftre,
companies responsible for poltluri to
pay the final Mill
"Superfund took year to crank up
and In IM [by law] It had to be reu-
thorsled." says J. William utrell.
president of .the Washington D.C.-
band Envronmental Law Institute a
non-proft education and research or-
ganizatio. Moreover, not only was u-
perfund r-enmergled in 1. add. Mr.
PutIre aenmeedmnts were paed that
gave the law sharper teeth. In addition
he asys, regulations followed in early
167 that forced corporation to en-
pand their In-house stai and/ar Bir
private firms to keep up with the po-
With mor entarer.s the bPA i dia-
overin additional upernd ite.
and more companies Involved in these
aites' pollution ar being asked to toot
elup bills. (Superfund lingo ident-
fle these companies au "potentially
reponsible part" or PRP1.)
In 1i, there were 3 Superfumd
lawyers with the EPA at its Washlng-
too. D.C, headquarters and in offices
around the country. according to EPA
spokesman David Ryan. Today there
On March ,. the EPA anounmed n-
other 101 new iltes, bringing the
preet total to 1.s. The federal *ov-
ernment claims responsblllty for
leaning only eight of thoe new 101
without the aid of corporate America.
As for the rest, sites can have any-
where from two to 100 PRP, says Mr.
Meanwhile, the federal Supertand
law also ha been aspiring tate legis-
laturee to pas similar laws that will
help them Identify local basardo
waste sites and force respondble com-
pean to ay t he cost of learning the
land of tone chemical.
The net result is an enormous
amount of ltigation and negotiation
over potentially large sum of money.
For not only are the tate and feder
al governments negotiate with and
ltigating against oompante the
federal government alone ha collet-
ed 1.0 billion through 4M actions -
there also to tremendous "private Ba-
pernd" legal work So much o fact,
that three of the 2B lawyers engaged in
environmental law work at New York-
baed Skadden, Arpa. Slate.Meaher &
lnm devote themeelve full time to
such matter, aoarding to partner
GROUP UEAD: Norman W. Berstela
beads bs A Geuld of New Terk' en-
vreammal law rwnma.
Increalngly, PRPs of particular
altes are fighting among themselves to
determine which of them will have to
pay the pper. In fact, so many PRP
need legal oounsel that work s getting
spread around the private -etor to
avoid conflicts of Intarest, sys Mr.
PRP also are busy sung liuranc
companies, claiming their policies
abould cover haarou wase clesaup
eoae. Observer estimate there a be-
tween and 100 such e e pending
acro the country.
And. in each of the dispute. numer-
ou Insurance companies often are
named as defendants because pollution
usually occurred during many years
while companies changed their policy
provider. Shell Oi ned those Iher-
awe companies that had provided cov-
erage for the Rocky Mountain Arenal
operation any time from 17T to 1i2
say Barry stnhaof San FPrancla-
co's Hancock. Rothert and Bunbhott
who served one of three lead attr-
anr or trthe tAs rs
Companies aad their I rers are
ot alane In their conern about labill-
SWEEKE3 C nultant ad reormite
ill Beag aa s demand fr sthe p-
elaty i way up.
ty for the cotly cleanup oes at bha-
ardous waste sites. In 1. a federal
judge l U.. V. MaryleJd BaI 2 rust
Co, Ml F. Supp. M (D.. M), gave
note to all thU inveting in but-
-ass with commercial property that
it is wiar to pay lawyers and en-
er for environmentall audits" be-
ore a deal i made than discover later
that they are liable for the cleanup Of a
The court held the bank financially
respeonibe for eleaaup osts at a farm
ease used as a toe for a trash aad
garbage colleUtion butaa. It did this
eve though the bank had only become
the "eoner" of the property through
orealosure og after cotamina-
tin had taken place. The arinal lo
te Maryland Bank & Trut Co. made
to thin em was $SMI.0. The EPA
oad the bank for about a000 In
Congrem later prload an a"oe-
oent landowner" defense la the 13I
amendment to the Iuperfund Act.
However. "as a practical matter the
Innocent landowner defe doe not
elet," ay Mr. Berntein. The law re-
quire benks to carefully examine
property before they make kloa or
f relos and If they look. they are o-
tng to find the problem, be sy.
Environmental law It therefore now
inextricably bound with banking and
real state as well as merger and ac-
tisqltlo And most lawyer in the
ed would be irresonasble for a
UPEB TAb 8kadda Arp partner
Jame er ys thmre lawyers work
tell tme m Sporertud matter.
company to consider any large com-
mercial traneacutin Ivolvinl proper-
ty without the aid of environmental
Residential property sales alao are
bein afectd making environmental
law the concern even of general practi-
tioners n small town. Four sates -
California. Connecticut. Illinois and
New Jersey have laws requiring ss-
mment of environmental sound
in all property transfers.
While most beadllnes tell of Super-
fund litigation, a great deal of work la
being done under many other environ-
mental law. Passed by the federal
government In the 170s and reaching
their maturity today, these laws in-
elude the Cean Air Act and Clean Wa-
ter Act, as well an the Resource
Conservation and Recovery Act
The complexity and heer volume of
each of these laws' regulations forces
companies to retain lawyers to make
ure they are in compliance and wont
later face fines or even criminal
At San Francisco's McCutchen,
Doyle, Brown & Eneran two-thirds of
the s lawyers in the environmental
practice group devote their time to
counelln and compliance enforce-
ment, and the ret are litigator, says
partner Edward L Strohbehn Jr.
Ter was a time when you would
ay. practice environmental regula-
tory law.' and people would say
"What"" notes Ma. Thorton of Attor-
ney Placements International Inc. But
now, she says, It' outrageous. It's un-
believable...people with a regulatory
background can make a [job] change If
they want and Improve their
And til there are new and unex-
pected area in which environmental
lawyers la the private sector are find-
g their services required. Mr. Bern-
stein of Shea & Gould talks of
representing venture capital firms
that lncreaslngly se ownership of
shrinking landfll space as enormously
proatable but need environmental at-
torneys to avoid hazardous waste
Merm Lel Baime
Indeed, the field I only going to keep
expanding, ay all obervers of the en-
virnmental law industry.
Thing like the xxon spill do noth.
an but create more busn for law
firms," primarily became It helps fuel
the public concern about the environ-
ment. notes Mr. Henean of Market-
Many areas of insurance-etnvron-
mental law are ripe for Intenive i-
ation: ome.*, because important
uaes have yet to be settled, and oth-
era because dispute probably will be
bet solved by intensive discovery. For
example many nurer say their poll-
eia do not cover pollution cleanup
ot. which often far exceed the value
Continued on following poe
'This is the Earth, the Water and the Trees'
mIRONMEntAL LAW'S primal ap-
psal a well s market fre are
wft arne ys -th The dragon-slaying days are mostly over. Most
'We mention thi to law students we
sa N aS G as n ato u"at new attorneys entering the field today will find a
sarys N Glasr, a par-tor at New
sm'e's in lae asrpc. complicated world where it is difficult to identify
matters. "We are not dealing with col-
arend mortgage obuiatios. Thn. the culprits, and the clients are mostly corporate.
is the earth the water and the trw.
This Is real lt"
Some o on to public lnteret legal
work, followag a the footsteps of uch environmental law public ntaerst pep aloe, the ar M attorneys today, up
lawyers a John Bonine oo-director rally a atudent-nm conference on from M In 15 cording to EPA
of the Westrn Natural Reource Law April 14 and S eleabralotg years of spokesmanl David Rya.
Clinic t the University of Oregon environmental law work by Yale Trallblaser have some uncharted
Attorneyetobe set rapt. heads r- graduate. area to explore, mach as the point
astly noddig agreement as Mr. Othbr enlist with the gov ment to where international law and environ-
Boamn spoke recently at Yale Law strce the nation's environmental mental concerns met, accord to
School l o hiscien'setort toprm rve laws. They work for the Justie D- the attorney many call the father of
the old growth fort of the Pacifi prtment or t the Interior Depart- environmental law, David ave t New
Northwet from the greed" ot the ment'sland uMsestla ori t the olo York's 8ve, Paget and Rels
lumber compense. The occslon for a state and federal environment pro- And till others may nvnt private
Mr. Bonine's appearance was a ad ao teotion sagemsc At the federal EPA seta project that address the co-
It's Now the
Cotimed from priecedli page
of the business or poperty they cov.
red. notes Neal Glaer a partner at
New York's D'Amato & Lynch. Thi -
s Is being litigated throughout the
Insurers won both the Shll cae ad
a umat filed by The Diamond Shamrock
Chmicals Co becau they were abl
to demonrate, through extensve dio-
covery, that the manufacturers *x-
pected and intended" to dicharge
ontamiants known to be harmfuL
The Diamoad Shamraek Cea
Meanwhile. In the compliance areu.
many medium and smaller ompanai
are just discoverln their need for
conneling, according to Frank reld-
marn viem president of Health nviron-
ment and Safety at Occidental
Petrotm ain Lma Angels.
And. as the pace ao environmental
risk asesment pickh up. sults by eit-
sans for damage caused by muafe air,
water and sol have ben and promie
to employ many attory.
The Diamond Shamrock Chemicals
Co. wlich produce Agnt Orange for
almost 20 yer at a plant n Newark.
NJ. wated the inrer to Indemnlty
not aoly the comt a eeanin up the
ara surrouaMi the plant. The com-
pany elo wanted liners to pay dam-
age fr ay iauri claimed by the
plaat' n hbor as well a vteras
espsed to the chemical In Vieteam.
Diamond Shamrock hired two law
firms to gate Its am agai tt 1M
furers Marri~town. NJ.'e Pitnby,
Hardim Epp a& eh and New Tork's
Cahill Gordon & RemideL.
State amh as Now Jery. Caldfor-
ala ad Michiga have the great
amoum of enviroammnmal law aouivity
right now because of progreMrive PA-
elated programs and active etfum
proup, says Mr. I Lgan. The Dtrtet
of Columbia i the omter a activity,
became that Is where the federal reg
toleb are promlgated.
But etrnmeta law practice in
all other state are "bout to take of,"
he befes, became "all of the state I
haven't mentioad are going to have to
As a reult, en inmental lawyers
"are going to be th bottt thing for
the nat 10 years" predt Mr. Hme-
ga. Mr. Roger of Skadden Arpa.
alg with many other law frms who
re n the market for additional nvi-
tom ltal attorney agrees. "I don't
m It slowag dowe at alL"
nomic roots of environmental prob-
m as suggested to the Yale law
students by William Drayton. a Yale
Law School graduate who founded
Aaeoka: Innovators for the Public.
Ashoka. a Washington, D.C.-baed In-
ternational non-profit organization
that helps Third-World entrepreneurs
launch public Interest development
programs is attacking problems such
Srglobal warming by helping Brazil's
rubber tappers fight the destruction of
the Amason rain forest.
But the dragon-slaying days of envi-
ronmental law. when a few conerva-
tionists singlehandedly battled
unthinking "monster of progress" to
preserve the nation's splendor, are
largely one, says Mr. Sive.
Most lawyers entering the field to-
day will find a complicated world
where It is difficult to identify the cul-
prits and the clients are usually corpo-
rate, says Mr. ive.
and Their Impact on Toxic Tort Litigation
Michele B. Corash, Tomme R. Young, and Lynne F. Anderson,
Morrison & Foerster, San Francisco, California
Much environmental legislation enacted during the
last decade has been put forward in response to significant
events such as spills and explosions. The events in Bhopal,
India, ignited worldwide fear of the accidental release of
hazardous substances, because the extent of media attention
it received created the perception of a need for well
developed community-wide emergency response plans. Public
concern about these issues has sparked a number of statutes
at the federal and state level requiring a facility to warn
any individual who may be exposed to hazardous substances
from that facility. These provisions are often dubbed
"right-to-know" legislation, and typically require members
of the regulated community to issue warnings or generate
data available to the public concerning the chemicals that
they use, store, dispose of, or emit.
Environmental information may be generated under
many local, state, and federal statutes. This information
could potentially affect future toxic tort litigation. This
paper sets out the basic provisions of several federal
statutes under which such information is obtained, collated,
and used in various ways, as well as one state environmental
statute, California's Proposition 65.
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
("EPCRA")(42 U.S.C. 11001 et seq.)
Enacted in 1986, EPCRA imposes specific reporting
obligations on owners and operators of facilities which use,
emit, or are associated with hazardous or toxic substances.
Some of these requirements are implemented at the local
level by emergency planning committees whose primary
responsibilities center around the collection and use of
hazardous substance information for emergency response plan
development. These local emergency planning committees also
must act as a public clearinghouse for information collected
as a requirement of EPCRA. This information must be
provided by the administrating agency to the public upon
request. EPCRA also specifically states that it does not
preempt other state and local law in this area.
EPCRA consists of two separate, but related
components: (1) "emergency planning" and (2) "community
right-to-know". An entity which fails to provide
information required under EPCRA could be subject to
enforcement action by the EPA, state, or local
administrating agency, or by any person acting on his own
Emergency Planning and Notification
Under EPCRA, owners and operators of facilities
which have extremely hazardous substances present in excess
of specific threshold quantities/ must submit detailed
information regarding any extremely hazardous substances
that are present at their facilities in amounts greater than
the threshold planning quantities. Necessary information
includes the identification of a facility emergency
coordinator, notification of any relevant changes occurring
at the facility, and the submission of any specifically
requested information necessary for developing and
implementing the emergency plan. The local emergency
planning agency will use this data in developing a
comprehensive local emergency plan for dealing with
hazardous chemical releases as well as other emergencies
that may be impacted by extremely hazardous substances.
In the event of an off-site release of more than a
specified amount of an extremely hazardous substance, the
facility owner or operator must notify the appropriate
emergency response personnel and provide follow-up notice as
soon as practicable. Information is generally provided to
enable emergency response personnel to respond to and
mitigate a release of an extremely hazardous substance or a
Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA") hazardous substance. Necessary
information includes: identification of released
chemicalss, quantity released, time and duration of
release, any known or anticipated health risks, advice
regarding medical attention necessary for exposed
individuals, evacuation procedures and/or other recommended
precautions, and identification of a contact person for
After mitigation of a release, follow-up
notification is required, and usually includes a report of
the release response and mitigation actions taken, the known
or anticipated acute or chronic health risks associated with
the release, and advice regarding medical attention
necessary for any exposed individuals.
I/ EPCRA requires EPA to set a "threshold quantity" for
each substance regulated under this section.
Additional Right-To-Know Requirements
There are two additional informational requirements
under EPCRA. These are: the hazardous chemicals inventory
forms and the toxic chemical release forms. The information
obtained and the facilities obligated to comply with these
two separate forms are different.
Owners and operators of facilities that use or
manufacture hazardous chemicals subject to regulations
pursuant to the Occupational Safety and Health Act ("OSHA")
are required by EPCRA to provide specific reports concerning
such chemicals/ at their facility. The reports required
under this provision must include (i) a submittal of the
material safety data sheets ("MSDS") or a summary thereof
for all hazardous materials on-site and (ii) special
Emergency and Hazardous Chemical Inventory Forms ("Inventory
Pursuant to the Inventory Form requirement, the
owner must submit detailed information in two "tiers".
Tier I information is required of all covered facilities,
and must include estimates of the daily average and yearly
maximum amount of hazardous chemicals present at the
facility and specific information about the location of the
chemicals in the facility. In its discretion, the local
agency may request additional information ("Tier II"), such
as the chemical or common name of the substance and a
description of how it is stored at the facility. Or a
facility may voluntarily submit Tier II information. A
member of the public may ask the agency to request Tier II
information from a facility. The agency must consider such
The Toxic Chemical Release Forms2/ are used to
inform the government and the public about releases of toxic
chemicals to the environment and to assist in the study and
compilation of hazardous substance release incidents by
governmental agencies. Under this section, a Toxic Chemical
Release Form is required of any facility within SIC code
categories 21 through 39 (manufacturing industries) which
produces, manufactures, or otherwise uses more than a
specified threshold amount of a toxic chemical on an annual
2/ The definition of "hazardous chemicals" applied here is
that used in OSHA's Hazard Communication Standard, discussed
2/ "Toxic Chemicals" are separately defined in the Statute
and listed by the Agency.
Inventory and Toxic Chemical Release Forms are
available to health professionals and to members of the
public, upon request. Reporting entities are given limited
rights to request that EPA withhold confidential "trade
secret" information from the public, but these provisions
cannot be used to prevent EPA from disseminating such
information to health professionals.
Administrative, civil, and criminal penalties of up
to $25,000 per day of violation can be imposed on owners and
operators for a first time violation of various provisions
of the act. Subsequent violations could result in a penalty
of up $75,000 per day of violation. Persons convicted of
criminal violations may also be sentenced for not more than
two years in prison.
Examples of violations subject to the penalties
include: failure to notify appropriate agencies of the
storage of materials in excess of the threshold planning
quantity, failure to provide information including the
identification of a facility emergency coordinator, changes
in the facility affecting the original report, and
responding to additional requirements for information from
the emergency planning committees.
If the EPA has not initiated administrative or
civil proceedings against an owner or operator in violation
of certain requirements of emergency notification or general
reporting requirements including MSDSs (discussed infra),
inventory forms and toxic chemical release forms, civil
actions may be initiated by "any person". State and local
governments are also given standing to sue owners and
operators of facilities for failure to submit the required
reports and forms described previously.
A prevailing party may recover costs, including
reasonable attorney and expert witness fees, whenever the
court determines such an award to be appropriate.
CERCLA RIGHT-TO-KNOW/DISEASE REGISTRY (42 U.S.C.
9604(i); enacted October 17, 1986).
CERCLA established the Agency for Toxic Substances
and Disease Registry (ATSDR) within the Public Health
Service to coordinate with the heads of the EPA, the Food
and Drug Administration, the National Institute of Medicine,
the National Institute of Environmental Health Sciences, the
National Institute of Occupational Safety and Health, the
Center for Disease Control, OSHA Administration, the Social
Security Administration, the Secretary of Transportation,
and "appropriate state and local health officials" to
implement the "health related authorities" established under
this statute. Under CERCLA, the ATSDR Administrator is
required to develop five critical data bases, in cooperation
with the states and other agencies:
(1) a national registry of serious diseases and
illnesses (presumably limited to diseases suspected
of resulting from exposure to toxic substances);
(2) a national registry of persons exposed to
(3) an inventory of literature, research, and
studies on the health effects of toxic substances;
(4) a complete listing of areas which have been
closed to the public or otherwise restricted in use
because of toxic substance contamination; and
(5) a prioritized list of those substances most
commonly found in SuperFund sites which the agency
believes "are posing the most significant threat to
In addition, the Agency has special obligations
associated with medical care and testing for public health
emergencies caused or believed to be caused by toxic
substances. The Agency is required to conduct periodic
survey and screening programs to determine relationships
between exposure to toxic substances and illness,A/ and must
prepare toxicological profiles for each of the substances
listed in (5) above, including (i) the levels at which human
exposure to the substance is deemed significant and
manifests health effects; (ii) a determination of the
adequacy of current information and inquiry concerning the
health effects of each substance; and (iii) where
appropriate, an identification of toxicological testing
needed to identify the types or levels of exposure that may
4/ The ATSDR is expressly mandated, in performing these
duties, to pay particular attention to chemicals which are
most commonly found at hazardous waste contamination sites
listed on CERCLA's "National Priorities List". The Agency
must use discretion to determine which of these substances
pose the most significant threat to human health, and focus
on those substances.
present significant risk of adverse health effects in
Most significant under the Act is the requirement
that the ATSDR perform a "health assessment" for each
facility listed on the National Priorities List and for
certain other high risk sites, as well. When completed, a
health assessment for the site will be a public document.
It will contain, among other data, a preliminary assessment
of the potential risk to human health posed by the site,
based on such factors as the nature and extent of
contamination, the existence of potential pathways of human
exposure, the comparison of expected human exposure levels
to the short-term and long-term health effects associated
with identified hazardous substances, and a comparison of
existing morbidity and mortality data on diseases that may
be associated with the observed levels of exposure.
The ATSDR must provide this document to the EPA and
each affected state. The EPA will use the information to
determine whether this site should be put on the National
Priorities List, or if it is already listed, whether it
should be accorded a higher priority.
The ATSDR may also order a health surveillance
program based on health assessment data. Such a program
periodic medical testing to screen for diseases
for which the subject population or subgroup is
at significant increased risk; and
a mechanism to refer for treatment those
individuals who are screened positive.
All data obtained by the ATSDR will be summarized
in another public document, the bi-annual ATSDR Status
Report, which is designed to provide an overall assessment
of the correlation of human exposure to individual or
combined hazardous substances and any increased incidents or
prevalence of adverse health effects in humans.
OSHA HAZARD COMMUNICATION (29 C.F.R. 1910.1200)
The OSHA Hazard Communication Standard ("HCS") was
adopted to "ensure that the hazards of all chemicals
produced or imported" are evaluated and that the information
5/ If adequate information does not exist to assess the
health effects of these substances the EPA and ATSDR must
initiate a program of research designed to determine the
health effects of such substance.
concerning these hazards is transmitted to employers and
employees. This information is to be transmitted through a
comprehensive program of hazard communication, data
dissemination, container labeling, warnings, and employee
Material Safety Data Sheets ("MSDS")
A critical element of the HCS requirements is the
MSDS. Chemical manufacturers and importers are obliged to
obtain or develop an MSDS for each chemical that they
produce or import which is determined to be "hazardous"
based on specific scientific criteria, and pass this
document along to all persons who purchase or distribute the
chemical, as well as to distributors who might resell the
chemical to employers. Employers must maintain an up-to-
date MSDS for each chemical they use. MSDSs must be in
English and contain detailed information concerning the
identity, characteristics, physical hazards, and health
risks associated with the substance. The MSDS must also
note the recommended handling precautions, control measures,
and first aid procedures for dealing with the substance.
Employee Hazard Communication
Under OSHA's HCS, employers are required to provide
information concerning the chemicals located in the
workplace and the risks of exposure to those chemicals to
all employees who may be exposed. Employers must develop
written hazard communications programs for their workplaces.
These documents must be accessible to all employees.
A hazard determination must be made for any
chemical that is known to be present in the workplace to
which employees may be exposed. A hazard determination may,
if necessary, be undertaken by the employer, but more often
it will be obtained from the chemical manufacturer in the
MSDS. Laboratories and distribution channels, where
employees only handle chemicals in sealed and labeled
containers, must maintain readily accessible copies of
pertinent MSDS's shipments and provide information and
training for spills or leaks from a sealed container.
Under the labeling component of the HCS, chemical
manufacturers, importers, and distributors must ensure that
each container of hazardous chemicals leaving the workplace
is clearly and legibly labeled, tagged or marked with the
identity of the hazardous chemical; warnings and other
information; and the name and address of the chemical
manufacturer, importer, or other responsible party.
Examples of chemicals exempted from OSHA's labeling
requirements include those chemicals regulated elsewhere
such as hazardous wastes; pesticides; foods, drugs, and
cosmetics; beverage alcohols; tobacco and tobacco products;
wood and wood products; and consumer products. Exemption
from this labeling requirement, however, does not exempt the
employer from other hazard communication and training
In addition to the above-described labeling and
hazard communication requirements, employers must also
properly inform and train their employees concerning
hazardous materials in their work area. A formal training
program must be developed and updated whenever additional
hazardous materials are introduced. This training program
will inform employees of the OSHA statutory and regulatory
requirements regarding the hazard communication and
labeling; the location and use of hazardous chemicals in
their work area; the physical and health hazards of the
chemicals in the work area; the measures employees can take
to protect themselves against those hazards; the details of
the hazard communication program developed by the employer;
and the location and availability of the hazardous
communication information including MSDSs.
Access to Information
A significant amount of the information developed
for purposes of the HCS is available to employees, their
representatives, and the administering agency. In certain
situations, trade secret information may be protected, and
may therefore be withheld from dissemination to employees.
That information must still be provided to health
professionals, employees, and designated representatives if
needed for health purposes where a medical emergency exists.
The courts are grappling with a number of preemption
questions, some of which focus on the states' rights to
impose stricter controls, while others consider the effect
of the HCS on lawsuits alleging failure to warn or employer
CALIFORNIA'S SAFE DRINKING WATER AND TOXIC
ENFORCEMENT ACT OF 1986 ("PROPOSITION 65")
(H&S Code 25249.5 et seq.; Approved November 4,
In 1986, the people of California passed an
initiative measure (Proposition 65) ostensibly intended to
ensure safe drinking water in California, and warn the
public prior to exposure to certain toxic chemicals.
Proposition 65 has two requirements: a discharge prohibition
and a warning provision. Businesses/ cannot knowingly
discharge a carcinogen or reproductive toxin in a manner
that may cause it to enter a source of drinking water and
must give clear and reasonable warning prior to any knowing
or intentional exposure of an individual to a carcinogen or
a reproductive toxin. Exemptions from the requirements may
be available to a party who can demonstrate that the
discharge or exposure is safe according to state
Under Proposition 65, chemicals which are "known"
to cause cancer or reproductive toxicity were required to be
listed by the Governor. After much debate among scientists,
industry, and the public,2/ the so-called "Governor's List"
is nearly complete.8/ There are currently 335 chemicals
known to the state to be either a carcinogen or a
Several terms used in the statute were vague and
have required additional interpretation. The California
Health and Welfare Agency, as the lead agency assigned by
the Governor the task of preparing regulations, has prepared
regulations which offer a framework for determining
compliance with Proposition 65. These regulations provide
definitions and procedures for complying with the discharge
prohibition, determination of exempt exposures, preparation
of clear and reasonable warnings, and determination of risk
Like the other public right-to-know legislation
discussed in this article, this statutes' enforcement powers
are also granted to the public. One issue that has not yet
6/ Proposition 65 applies to all persons or entities
employing 10 or more persons, excluding local, state, or
federal agencies and public water systems operators.
2/ The proposition's first lawsuit was filed because the
Governor initially published a list which only contained
known human carcinogens or reproductive toxins, and not the
list recommended by the proponents of the initiative which
contained, in addition to known carcinogens and reproductive
toxins, substances only suspected to be carcinogens and
reproductive toxins. The California Court of Appeals
recently upheld the lower court's decision granting the
plaintiffs's motion for preliminary injunction.
8/ This list must be reviewed and updated by the Governor
on an annual basis.
are also granted to the public. One issue that has not yet
been decided under Proposition 65 is the degree to which the
statute preempts other legal actions based on failure to
warn of toxic hazards. Proposition 65 is enforced through
actions brought on by the Attorney General, district or city
attorney, or by any person in the public interest. The
maximum penalty is set at $2,500.00 per day for each
violation of the provision.
ALCOHOLIC BEVERAGE LABELING ACT (27 U.S.C. 213
et seq.; enacted November 18, 1988)
The purpose of this act was to inform the American
public about the health hazards that may result from the
consumption or abuse of alcoholic beverages. It requires a
clear and uniform health hazard warning for alcoholic
Starting November 18, 1989, it will be unlawful for
any person to manufacture, import, or bottle for sale or
distribution in the United States or to any person in the
armed forces stationed outside of the United States any
alcoholic beverage unless the container carries the
GOVERNMENT WARNING: (1) According to the
Surgeon General, women should not drink
alcoholic beverages during pregnancy
because of the risk of birth defects.
(2) Consumption of alcoholic beverages
impairs your ability to drive a car or
operate machinery, and may cause health
On February 16, 1989, the Bureau of Alcohol,
Tobacco and Firearms, Department of the Treasury, published
its temporary rules prescribing the type size and other
specifications for warnings to be placed on containers of
alcoholic beverages under the Alcoholic Beverage Labeling
The Act expressly provides that it preempts all
state laws relating to the warning to be placed on
containers of alcoholic beverages. The Act prescribes civil
penalties of $10,000 per day for violations of the statute;
"each day shall constitute a separate offense."
The Attorney General of the United States, acting
through any of its United States attorneys, may apply to the
appropriate district courts for injunctions to "prevent and
restrain" violations of the labeling requirement.
ASBESTOS INFORMATION ACT OF 1988 (P.L. 100-577;
enacted October 31, 1988).
Under this Act, any person who, prior to enactment,
manufactured or processed any "asbestos or asbestos-
containing material for use as surfacing material,
thermal system insulation, or miscellaneous material in
buildings," or any person whose "corporate predecessor
manufactured or processed such asbestos or material" must
submit information to the Administrator of the United States
Environmental Protection Agency ("EPA") concerning the years
of manufacture, the products manufactured, and other
The information developed in these reports will be
organized and collated into a report to be published
shortly. EPA is behind the statutory time schedule in
producing this report.
Unlike the other statutes examined in this paper,
this Act was, at its enactment, specifically intended to
provide information to litigants in toxic tort lawsuits.
The goal of this act was to streamline the discovery portion
of asbestos litigation for all parties and for the courts.
The collated information on former asbestos manufacture was
to be used by plaintiffs to identify potentially liable
manufacturers, and by defendants to secure their dismissal
from cases where there is no reasonable probability that
they are responsible for providing the asbestos product in
the building that is the subject of litigation.
On September 20, 1989, EPA published a notice
stating that it would not accept claims of business
confidentiality concerning these reports, all of which will
be available to the public.
PRESENTATION BY JOHN QUARLES
AMERICAN COLLEGE OF TRIAL LAWYERS
1989 ANNUAL MEETING
NEW ORLEANS, LOUISIANA
NOVEMBER 3, 1989
Note: The enactment of Superfund by Congress in
1980 transformed prior legal relationships
regarding contaminated waste disposal sites. Its
implementation has complicated corporate
transactions and produced a snarl of litigation.
Attached to this outline is an excerpt from the PRP
Organization Handbook, recently published by The
Information Network for Superfund Settlements. The
excerpt explains the chief features of Superfund
which underlie any discussion of private cost
PRIVATE COST RECOVERY ACTIONS UNDER CERCLA
1. Common fact scenarios:
a) Buyer purchases land from Seller without knowledge
that land is contaminated. Seller is responsible for the
contamination and conceals the information from Buyer.
b) Neither Buyer nor Seller is aware of the
contamination, which was caused by a remote owner or by a
c) Buyer is aware of the contamination, but later
discovers that the extent of the contamination is greater
than first believed.
2. CERCLA -- The Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601, et sea., also known as the "Superfund" law, provides
a comprehensive scheme for the clean-up of sites contaminated
by hazardous substances.
- 2 -
3. Liability under 107(a) of CERCLA:
Persons who disposed of, or arranged for the disposal
of, hazardous substances, on their own property or at another
facility, as well as persons who owned the facility at the
time of disposal and the current owners of such property, are
potentially liable for clean-up of the property. Liability
is strict, and is joint and several, although contribution is
available under 113. Any PRP who conducts a clean-up
consistent with the National Contingency Plan may recover
some portion of the costs from other PRPs, subject to the
defenses in 107(b), contractual agreements shifting
liability, and equitable allocation under 113 (f).
4. Defenses to Liability in 4 107(b):
A defendant may be able to avoid liability if the
damages were caused by an act of God or an act of war, or by
the act of a third party other than an employee or agent of
the defendant, or other than one in a contractual
relationship with the defendant, as long as the defendant
exercised due care and took proper precautions. Under 101,
"contractual relationship" includes the conveyance of
property unless the defendant acquired the property after the
disposal and the defendant did not know and had no reason to
know that the substance was disposed of on the property (or
was a government entity under certain circumstances, or
acquired the property by inheritance or bequest). This
requires the buyer to undertake "all appropriate inquiry"
into the prior ownership.
5. Indemnification and Release:
CERCLA permits parties to agree to allocate the risks
and costs of cleanup under the statute. However, the release
must be explicit or the courts will find that liability
remains with the seller. Southland CorD v. Ashland Oil, 696
F. Supp. 994 (D.N.J. 1988) ("as is" and indemnity clauses
insufficient to constitute release); Emhart Industries. Inc.
v. Duracell International Inc., 665 F.Supp. 549 (M.D. Tenn.
1987) (seller's acceptance of full responsibility for PCB
contamination and indemnity sufficient to make seller
6. Consistency with the National Contingency Plan
A plaintiff seeking cost recovery must prove consistency
with the NCP. Recent cases have required strict adherence to
the requirements of the Plan. See, Artesian Water Co. v. New
Castle County, 659 F. Supp. 1269 (D. Del. 1987); Amland
Properties Corp. v. Aluminum Co. of America, (E.D.N.J. 1989).
7. State Law Claims
Many states have statues closely parallelling CERCLA and
providing a similar state cause of action for cost recovery.
See, e.g., Massachusetts Oil and Hazardous Material Release
Prevention and Response Act, Mass. Gen. Laws, Ch. 21E. Also,
there may be common law claims available in some states, such
as nuisance, misrepresentation, or breach of contract.
PRP ORGANIZATION HANDBOOK
A Guide For Potentially
At Superfund Sites
The Information Network For Superfund Settlements
To Obtain Additional Copies
To obtain additional copies of this booklet, please send a written re-
quest, specifying the number of copies desired and enclosing a check
in payment, to The Information Network for Superfund Settlements.
9'o Morgan. Lewis & Bockius, 1800 M Street, N.W.. Washington, D.C.
20036. The price for individual copies is $10.00 each; on orders of
20 copies or more the price is $8.00 each. Please make checks
payable to "The Information Network."
The Key Elements of Superfund
* The Superfund law imposes strict, Joint, and several liability on
owners and operators of a waste site, transporters of waste to a
site, and generators or persons who arranged for disposal of
* Superfund proceedings are complex, and require cooperative
efforts by private parties and the government to achieve
cleanup and minimize transaction costs.
m The process of reconstructing the facts as to whose wastes and
what types of wastes were disposed of at a particular site is
time-consuming and uncertain.
m EPA will identify through information requests, and general and
special notice letters the potentially responsible parties ("PRPs")
for cleanup of a release, or threatened release of hazardous
substances at a site.
* The cleanup is preceded by a Remedial Investigation/Feasibility
Study (RI/FS"). Immediate threats are dealt with in a "removal
* After EPA completes its Record of Decision ("ROD"), the cleanup
proceeds to the Remedial Design/Remedial Action phase
* PRPs may conduct the investigation and cleanup under a
consent agreement or order, or EPA may perform the work and
sue to recover its costs.
* If PRPs can organize as a group, undertake the cleanup, and
agree on a cost allocation scheme, they can minimize the delays
and exorbitant transaction costs that characterize this program.
as well as preclude enforcement action by EPA.
A Guidebook to the Environmental Cleanup Process
Since the federal Superfund program was established by Congress in 1980, it
has been the subject of confusion, criticism, and frustration. It has led to the collec-
tion of billions of dollars in taxes and caused the expenditure of billions of dollars in
public and private funds. It has fostered the growth of a whole new bureaucratic
organization of federal and state employees and government contractors. It has
provoked acrimonious debate over which sites should be cleaned up. which should
be cleaned up first, how clean they should become, and who should pay for the
cleanup. Some critics have charged that the program has entailed staggering waste.
Others have declaimed its lack of progress.
It often appears that no one is satisfied with the Superfund program. Nonethe-
less, when Congress reauthorized the federal law in 1986, it increased the funding of
the program fivefold. Roughly 30.000 sites around the country have been catalogued
under the program. With increasing momentum, those sites are being investigated
and remedial work to clean them up is commencing. A vast apparatus of government
officials, public contractors, and private parties is working kinks out of the system
and establishing operational procedures. Like it or not, the Superfund program is
Retroactive liability N One drastic feature of the Superfund law is retroactive liability.
Superfund concentrates mainly on abandoned hazardous waste dumpsites. In
addition to empowering the government to clean up those sites, the law also imposes
liability on those it holds accountable for them. These parties include owners or
operators of each site, companies that transported waste to the site, and companies
that generated or arranged for disposal or treatment of waste found at the site. That
liability applies even though the actions on which liability is based were entirely legal
and customary when they occurred. Moreover, federal courts have found that
Superfund liability is "Joint and several." This means that a single off-site generator.
which perhaps sent a very small quantity of waste to a site, may be held liable for the
entire cost of cleanup.
The harshness of the retroactive imposition of strict liability has provoked
vigorous protest. After enactment of this severe law, many parties challenged both its
interpretation and its constitutionality. However, federal courts have uniformly ruled
that Congress did intend to impose such liability and that it does not violate the
Complexity of proceedings E These sweeping liability provisions have also engendered
extraordinarily complicated administrative proceedings. It is not uncommon for
several hundred different parties to be identified as potentially liable for the costs of
cleaning up an individual site. The government typically attempts to afford such
groups of private parties the opportunity to assume responsibility for doing the work
THE INFORMATION NETWORK FOR SUPERFUND SETTLEMENTS Morgan, Lewis & Bocdus
1800 M Street, NW Washington, DC 20036 (202) 467-777
at Superfund sites, but the process of organizing such large numbers of parties and
conducting a common work effort poses practical obstacles of Herculean proportions.
Needfor understanding Superfund f The confusion surrounding Superfund and
the complexity of collective efforts by private parties are the reasons for this guide. It
has been widely recognized that one fundamental requirement for private parties to
work together successfully is a common understanding of the legal requirements to
which they are subject. The increasing numbers of companies with substantial
experience in performing work at Superfund sites have generally concluded that it is
advantageous for them to undertake such work. The benefits of this approach, and
the methodology to carry it out, however, are not obvious to those without prior
experience. Moreover, at any site, many parties are new to the process. This Super-
fund Primer is designed to provide a quick introduction to what Superfund is all
about, and how companies can better participate in the process at a particular site.
If you are new to this process, you will discover that Superfund is a tar baby.
Once you touch it or it touches you, there is no painless escape. We hope that this
guide will enable you to deal with the complexities in which you are now ensnared
Summary of the Superfund Program
I. Why Congress Adopted The Law
During the 1970s, an upsurge of public concern about environmental hazards
led to the adoption of numerous new environmental programs. Initial efforts focused
on cleaning up pollution in the air and in our lakes and rivers. Gradually, it became
evident that the past disposal of hazardous wastes at poorly chosen and widely scat-
tered locations had caused serious environmental concerns. In the absence of protec-
tive controls, vast quantities of waste were dumped In swamps, along roadsides, or at
other unattended locations where no person was responsible for managing the facility
or installing controls to prevent hazardous constituents from migrating into the soil,
into the groundwater, into adjacent streams or rivers, or into the air. These disposal
locations became known as "abandoned dumpsites."
Launching a national cleanup effort N In the late 1970s, investigation of many
disposal sites and concern about the potential for adverse health effects and environ-
mental damage produced support for federal legislation. The result was Superfund.
Its purpose was to launch a national effort to investigate and clean up existing
abandoned hazardous waste sites, and to provide a disincentive against any future
disposal of hazardous wastes at uncontrolled locations.
II. The Key Features Of Superfund
The "Superfund" law is actually entitled the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA). It was first enacted in 1980
and substantially amended by the Superfund Amendments and Reauthorization Act
(SARA) in 1986. The three principal elements of Superfund are as follows:
First, the law provides legal authority to the federal government to go onto
property where hazardous substances may be found and clean them up. In this
regard, Superfund is patterned after the previously enacted federal legislation to
clean up oil spills, adopted in 1972 as part of the Clean Water Act.
Second, the law establishes a fund of money to meet the costs of such cleanup
action. That fund was initially set at $1.6 billion to cover the first five years of
operation, and In 1986 the fund was increased to $8.5 billion for the next five years.
Most of that money is raised by special taxes on industry, Including taxes on
petroleum feedstocks and a broad excise tax.
Liability of private parties U Third, the law imposes liability on private parties
identified as having contributed to the particular site requiring cleanup action. Those
parties include present and former owners and operators of the site, transporters
that brought wastes to the site, and off-site entities that generated or arranged for
disposal or treatment of wastes ultimately disposed of at the site.
III. Features Of A Typical Superfund Site
Records may be missing or incomplete U Because the Superfund program is so
complicated, it is helpful to the understanding of its procedures and implementation
if one first has in mind what the program is trying to accomplish. This is best done
by imagining a "typical" Superfund site. Superfund sites arise from a wide range of
circumstances. They may include unwatched wayside locations where no owner or
operator is present, or they may be inactive units on the property of a financially
responsible operating industrial facility. The prototype Superfund site, however,
Involves a disposal facility, most often a landfill, which was operated for a number of
years, perhaps as far back as the 1950s. The operator of that facility commonly may
have been a small company or even a sole proprietor with limited assets and no other
business operations. Over the years of operation, wastes may have been sent to the
site from dozens of different operations-or perhaps hundreds, or even thousands.
Some of those wastes may have been hazardous and others non-hazardous. Usually
no records were kept as to the type of waste material disposed of. Indeed typically,
especially at old sites, even the records of who sent wastes to the site are irregular
and incomplete. Moreover, much of the waste material may have been brought to the
site by transporters-truckers who were also small businesses, maintaining few, if
any, records. Because transporters often collected wastes from many different gener-
ators and took those wastes to a variety of different dumps, additional questions arise
as to which wastes went to which sites. The process of reconstructing the facts as to
whose wastes and what types of wastes were disposed of at a particular site is
tedious, complicated, and uncertain.
IV. The Superfund Pipeline
Over 30,000 Superfund sites E In dealing with Superfund questions, it is also useful
to have a general sense of what this program is addressing from an overall national
perspective. The 1980 federal law contained a requirement that certain parties review
THE INFORMATION NETWORK FOR SUPERFUND SETTLEMENTS Morgan, Lewis & Boddus
1800 M Street NW Washington, DC 20036 (202) 467-7777
their records and notify EPA of all sites known to them where hazardous substances
had been disposed. From those reports, EPA constructed an initial inventory, known
as the CERCLIS' list, of sites presumably subject to Superfund jurisdiction and
potentially requiring remediation. In 1981, there were roughly 17.000 such sites on
the inventory, but as additional investigations have been carried out the list has
grown and now contains over 30,000 sites.
One of EPA's first efforts was to establish a process for sorting through these
sites to identify those requiring action and particularly those of highest priority. As a
first step, EPA began conducting initial reviews called Preliminary Assessments,
which involved a "desktop" analysis of readily available information regarding each
site. In some instances, that preliminary assessment has indicated that further atten-
tion seems unwarranted. In most cases, however, the sites require further study. The
next step is to conduct a Site Investigation, 2 performed by an EPA contractor who
will visit the site, make a visual observation, and probably carry out limited sampling
and laboratory analysis of soils and groundwater. EPA then performs a standardized
evaluation of conditions at the site under the procedures of the Hazard Ranking
System. Those sites with characteristics indicating greatest potential problems are
placed on the National Priorities List (NPL). a designation leading to intensive further
Investigation and cleanup process U As EPA moves into direct action at a site, it
may hire a contractor to review all available records, to identify those parties which
sent and transported wastes to the site and that therefore may be held liable to clean
it up. Such records may be incomplete or nonexistent. The persons identified are
classified as Potentially Responsible Parties, or "PRPs." They presumably will be held
subject to strict, Joint, and several liability for all costs incurred in both investigating
and remediating the site. The formal investigation of the site proceeds in two basic
stages. The first step is to conduct a complete examination of conditions at the site.
This is known as a Remedial Investigation, or "RI." This is followed by an engineering
analysis of remedial action alternatives, referred to as a Feasibility Study ("FS"). The
two steps together are commonly referred to as an "RI/FS." A decision will then be
made by EPA on the actual remedial program in a document called the Record of
Decision or "ROD". The process moves from the investigative phase into the remedial
design and remedial action phase. During this process a great deal of technical or
investigatory work is done by government contractors. Following completion of the
remedial work, maintenance, monitoring, and other post-closure care is likely to be
required for periods in the range of 30 years.
V. The Liability Trigger-Hazardous Substance
Although most discussion of Superfund problems refers generally to hazardous
wastes, the critical provisions in the statute actually focus on the disposal of a
"hazardous substance." That term is defined with sweeping breadth. It includes all
materials defined as hazardous wastes under a companion federal statute, the
Resource Conservation and Recovery Act, or RCRA, which is the law regulating
hazardous waste management. It also covers a wide range of other materials, includ-
ing any substance designated as a taxic pollutant under the Clean Water Act or as a
1 CERCUS standsfor Comprehensve Environmental Response, Compensation and Labiity
2 Sometimes the EPA engages in a removal" action before (or after) the Site Investigation. It is
authorized to remove or arrange for the removal of hazardous substances when they are
released or threaten to be released.
hazardous pollutant under the Clean Air Act. Thus, Superfund liability attaches to a
panoply of acids, caustics, solvents, and heavy metals, In addition to hundreds of
other organic chemical compounds.
Far-reaching consequences E This broad coverage has dramatically expanded the
scope of environmental regulatory jurisdiction. Whereas traditional pollution control
programs under such laws as the federal Clean Air Act or Clean Water Act applied
primarily to the manufacturing or processing facilities of heavy industry--"Smoke-
stack America." if you will-nearly any type of commercial enterprise may be drawn
into Superfund liability. It does not require heavy wastes or large volumes. Small
quantities of solvents, cleaning compounds, or other incidental chemicals may pro-
vide a sufficient nexus to implicate a company at a Superfund site. Indeed, because
mere ownership or operation of property may impose liability, the Superfund program
is of direct concern even to banks or other financial institutions. The potential for
such liability also has been recognized as presenting far-reaching consequences to
any corporate transaction in which the ownership of real estate is being transferred.
VI. PRP Contacts-The Process Of Entanglement
There is no consistent pattern as to the manner in which a company is apt to
learn that it may be subject to liability at a Superfund site. EPA has stated that as a
general policy it will undertake to inform PRPs of their prospective involvement early
during its investigations, but the manner of notification varies.
"General Notice" and "Special Notice" Sometimes a company will receive a
"general notice" in the form of a letter simply announcing that the government is
investigating a particular site and that available information indicates the company
may be a PRP. In other instances, the government may summon all known PRPs to a
meeting to discuss prospective work at the site. Often PRPs will first receive an "infor-
mation request" in the form of interrogatories, commanding the company under the
power of subpoena to provide all information available in its records regarding hazard-
ous wastes shipped to the site. Such interrogatories may be relatively general or
exceedingly detailed, and may demand response as rapidly as within 20 or even 10
days after receipt. Alternatively, the government may choose to send PRPs a statutory
"special notice" stating that the government intends to initiate work at the site unless
the PRPs commit within 60 days to perform the work.
Whatever the first contact may be, the government usually goes through certain
procedures to obtain information from each PRP regarding its waste shipments to the
site. Superfund gives the government broad authority to compel the production of
such information, in addition to authority to enter and inspect the premises and
records of any PRP. The collection of such information, to the extent it is available,
progressively develops a more complete picture as to all identifiable PRPs, as well as
the volumes of waste each sent to the site. This may lead to the creation of a "waste-
in list." a crucial document commonly used among PRPs to divide up liability for
costs at the site.
Early PRP organization U At most sites, the government also encourages the PRPs to
organize themselves into a PRP group and to assume responsibility for performing
work at the site. The leadership for such a group may be provided by those PRPs
which are most clearly linked to the site and have sent the largest quantities of waste
to it. Often a small number of PRPs is responsible for a large percentage of the total
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waste, while huge numbers of other PRPs have sent such small quantities of waste to
the site that they may be classified as "de minimis" contributors.
VII. The PRP Dilemma-Work Now Or Pay Later?
A peculiar feature of the Superfund program is that it is carried forward on two
parallel tracks-at some sites the work is conducted by the government, while at
other sites the work is done by the PRPs. The original expectation for the Superfund
program was that the government would normally investigate and clean up the sites,
and certainly a major part of the public campaign to enact Superfund was a concern
over abandoned sites where no one was present to assume that responsibility. Thus,
the law gives the government broad powers to do whatever work and spend whatever
money is required to address these problems. In that context, the liability provisions
of the law empower the government to obtain reimbursement through cost recovery
actions after the work has been done.
The law also provides an alternative route by which the government can either
issue orders to PRPs requiring that they perform all or certain portions of the work or
negotiate a consent agreement with the PRPs in which they agree to do the work. As
the program has advanced, the government has increasingly emphasized the impor-
tance of achieving consent agreements, and EPA has stated its objective to have more
than half of the work at Superfund sites performed by PRPs under such agreements.
These circumstances present a constant dilemma to PRPs as proceedings
commence at each new Superfund site. With varying degrees of care and timeliness,
the government routinely provides PRPs an opportunity to take over and do the work.
This forces the question of whether the PRPs will individually or collectively seize that
Advantages of performing a cleanup U Most experienced PRPs believe that it
usually is beneficial to assume responsibility for work at the site. Control provides an
opportunity to manage the work more efficiently and to participate directly In the
technical analyses which may govern decisions as to the types of remedial actions
required. The pros and cons affecting this decision are discussed later, but a
threshold point to recognize is that the PRPs cannot elect to assume responsibility for
work at a site unless they first can reach agreement among themselves as a group
and set up an organizational structure to cany out such a decision. Before getting
deeper into these complexities, it is important to have a better understanding of what
really is involved in the work at an individual site.
VIII. The Pipeline Revisited-How Much Work And
How Much Money?
The two principal phases of work at a Superfund site are first, the performance
of the Remedial Investigation/Feasibility Study (RI/FS) and second, the actual
cleanup (or remedial design and remedial action). In actual practice, other
complexities intrude. At some sites, EPA may require certain immediate actions
(removal actions) to address emergency concerns. It may also divide a site into
separate components, called "operable units." One operable unit, for example, might
entail a surface cleanup of drums or other debris which present immediate hazards
and can be removed expeditiously. A separate operable unit might consist of off-site
remediation. For a general description, however, it is appropriate to focus on the
RI/FS and the cleanup as the two major phases of work at every site.
Remedial Investigation The first part of the RI/FS is the remedial investigation (RI).
During the RI, field surveys and other studies will be performed to determine the
real extent of waste deposits and more precisely define the boundaries of and
contaminants at the site. Wells will be installed to provide samples of groundwater for
laboratory analysis, and soil samples will be collected from both the surface and the
subsurface (by core borings) for similar analysis. Geologic and hydrogeologic features
will be determined, including levels of groundwater and the direction of groundwater
flow, as well as the depth and location of bedrock formations which may confine the
migration of contaminants. Completion of a full RI is likely to require 18 months to
Feasibility Study U The second phase of technical investigation is preparation of a
Feasibility Study (FS). This is an engineering analysis of the technologically available
alternative methods which might be employed to clean up the contamination.
Included in this analysis is a determination of the degree of cleanup required for the
site to comply with acceptable risk levels. Those levels will have been developed by a
risk analysis referred to as the "Endangerment Assessment." The costs of various
remedial alternatives are also projected in the FS. Preparation of the FS is a shorter
task, typically completed in three to six months.
After the FS has been finished, thus concluding the RI/FS process, EPA will
prepare a Record of Decision, or "ROD", in which it brings the evaluation of remedial
alternatives to culmination and sets forth the Agency's decision as to the remedial
action that will be required. It then proceeds to develop more specific engineering
plans, referred to as the Remedial Design or "RD". The RD in effect constitutes the
blueprint for the work to be done in cleaning up the site.
Remedial Action U When it comes to the actual remedial action ("RA), there are a
limited number of alternatives. One basic approach employed at a number of sites
has been extraction and removal-waste material containing high levels of contamina-
tion is extracted to prevent migration of waste constituents by "source control". In
earlier years, such material was often sent off-site to regulated landfills. Critics of
that strategy complained that it simply moved waste from one location to another,
and that even newer, regulated landfills might also eventually cause problems. These
views have caused a shift in approach to emphasize treatment at the site. The
Superfund Amendments and Reauthorization Act of 1986 provides a preference for
treatment of waste. Treatment methods may include incineration, solidification,
vapor extraction or other treatment of soils, pumping groundwater from extraction
wells and treating such groundwater in above-ground facilities, or even treating the
groundwater "in situ" by injecting oxygen or chemicals as appropriate.
Cleanup techniques One approach considered at many sites is containment. Under
this approach, a cap usually would be installed over the top of a disposal unit such
as a landfill, the cap consisting of a combination of compacted clay and plastic liners,
to prevent rainwater from penetrating into the site and creating hydraulic pressures
which could cause off-site migration of hazardous constituents. Sometimes such a
cap is also accompanied by the installation of slurry walls surrounding the site,
preferably connected to bedrock, to obstruct the lateral migration of groundwater. In
most cases, such systems would be augmented by the installation of wells at selected
locations to reverse the gradient within the unit (that is, cause any flow of
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1800 M Street, NW Washington. DC 20036 (202) 467-7777
groundwater to be into, rather that out of, the unit, thus preventing the escape of
materials). These wells would also remove and treat any groundwater within the
unit, preserving the integrity of the containment approach. Containment alone may
not be sufficient to satisfy the statutory requirements for cleanup, but the
methodologies of containment often represent at least part of the remedial alterna-
tives which are considered. Such methodologies are also frequently used in
conjunction with a "pump and treat" cleanup alternative.
Staggering costs U The price tag for all of this work runs high. Actual costs vary sub-
stantially from one site to another, and the costs of cleanup, where the most money
is spent, can vary dramatically depending on which remedial alternative is selected.
In average figures, EPA estimates that an RI/FS is apt to cost approximately $1 mil-
lion. Average cleanup costs were estimated a few years ago to run in the range of $7
to $10 million per site, but have been revised upward to a present estimate of
approximately $25 million per site. Additional costs would be incurred in any situa-
tion where a remedy proves insufficient and further work is required, because normal-
ly, PRPs are not released from further liability at a site if the remedy is unsuccessful
or if further work is required. In short, the potential liabilities that PRPs confront rise
to staggering levels. Given the inherent complexities presented by the number of
parties involved, the uncertainties of the evidence, the prohibitive costs of litigation,
and the record of unfavorable court decisions, these high stakes underscore the
critical importance of concerted PRP efforts in negotiating agreements.
Opportunities for PRPs to negotiate consent agreements under which they will do
the work arise at two points in the Superfund process-first with respect to the
RI/FS, and second with respect to the cleanup. The government always performs the
preliminary investigations of a site itself. It will not allow a splitting of the RI/FS, and
thus PRPs either do that whole job or none of it. EPA always prepares its own ROD.
Finally, the program is still too new to have addressed problems where a remedy has
failed and further action is required.
By far the greatest amount of experience exists in negotiating agreements to
perform the RI/FS. That, of course, reflects the evolving character of the Superfund
program and the fact that the RI/FS work comes first. Since the start of 1987, over
300 such agreements have been entered into.
The process of negotiating a consent agreement begins with the establishment of
a PRP group. Usually that group includes most of the PRPs who are high on the list
of contributors by volume of waste sent to the site. A consent agreement will be
feasible only where a consensus exists among PRPs representing a substantial share
of such wastes.
Cost allocation U In order for the PRPs to reach an agreement with the government, they
must first agree to a tentative framework for the allocation of costs. The framework
may consist of a process, such as alternative dispute resolution in the future, or a
method or amount of allocation. The most familiar basis for allocation is the volume
of wastes sent by each PRP. though in a few instances distinctions of waste charac-
teristics have been recognized. Final determinations of respective liability may not
occur at this stage, if the group members agree to finally allocate costs at a later
stage when remedial work at the site is undertaken. What really drives the process of
reaching agreement on allocation, however, is the common recognition among PRPs
that the advantages of entering a settlement with the government will be lost in the
absence of such agreement.
If the PRPs can first organize as a group, establish a technical committee or
retain technical support, and enlist legal support (either from the members or
retained by the group), to handle specific tasks in negotiating a consent agreement
and an allocation procedure, they can go forward with the RI/FS even if the members
do not know what the final allocation will be. Where an RI/FS is to be performed, a
general scope of work. or perhaps a detailed work plan, is usually prepared, so that
the government and the PRPs have similar expectations as to the work which will be
done and the estimated costs to do it.
Uncooperatve parties U A sticking point in many negotiations is the fact that some
PRPs may be unwilling to participate. Since the sites are old and records incomplete,
some PRPs may have gone out of business or cannot be located. Such PRPs collective-
ly represent an "orphan's share* of waste, the liability for which will usually fall on
the shoulders of all other PRPs. In addition, some PRPs Identified by the government
may dispute their actual liability, while others may disagree with the desirability of
entering a settlement agreement or simply refuse to cooperate. The existence of
certain non-participating PRPs is almost guaranteed at every site, but the number
and significance of such non-participants vary greatly.
A question of whether a sufficient number of the PRPs will agree to provide
adequate funding for the work to go forward often arises. Where certain PRPs decide
not to participate while others decide to go forward, a basic question of fairness is
presented as to what steps the PRPs can take-and what steps the government will
take-to impose on non-participating PRPs their reasonable share of responsibility.
The government has increasingly asserted-and in some recent cases, even
demonstrated-its intention to pursue PRPs who without justifiable cause refuse to
participate in agreements, perhaps holding them responsible for a greater share of
work allocation or costs at later stages in the work.
X. Issues For Negotiation
The negotiation of a Superfund consent agreement encompasses a range of
Issues, some of which arise at every site, while others are individual to particular
sites. Ajudgment on whether it is in fact to the advantage of PRPs to enter a consent
agreement obviously depends on the terms and provisions of the proposed agree-
ment. One of the most basic issues, of course, is whether reasonable terms are
offered, defining the actual work to be performed and the schedule for its completion.
A basic problem is that both RI/FS work and cleanup work at Superfund sites
Involve uncertainties, and precisely what work ought to be done at the site cannot be
predicted with assurance until the work is underway and preliminary phases have
been completed. Difficult issues thus arise as to whether penalties should be
imposed for failing to meet predetermined deadlines, when the causes of delay may
be unclear, and as to which provisions should govern the resolution of disputes
during the progress of the work. Underlying a number of specific issues is a more
fundamental question of whether the government can trust the PRPs to proceed in
good faith to perform the work and whether the PRPs can trust the government to be
reasonable in the interpretation and application of its requirements.
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1800 M Street, NW Washington, DC 20036 (202) 467-7777
XI. EPA's Enforcement Options
The difficulties that PRPs confront in resolving the dilemma of whether to enter
into a consent agreement to perform work at a Superfund site are underscored by the
enforcement authorities given to the government. Under the provisions of Superfund,
the government holds all the trump cards.
Administrative Orders U When an Imminent endangerment exists, EPA may issue an
administrative order commanding designated PRPs to perform specific work at a site.
If they then refuse to do so, in the absence of a good faith defense, each PRP may be
fined up to $25,000 per day of violation. If the government has to step in and do the
work, the PRPs may be liable for three times the costs of that work. Similarly, if PRPs
enter into a consent agreement to do the work, they can be penalized, also at the rate
of $25,000 per day, for failure to perform that work or for violating their agreement.
Some risk of incurring a penalty always exists, despite good faith efforts to perform,
because disagreements may arise and unanticipated difficulties may be encountered.
In addition, those PRPs that sign an agreement obviously commit themselves to an
up-front expenditure of the funds required to perform the agreement, including
perhaps a portion of the costs that ought to be assumed by non-participating PRPs.
Moreover, the government now requires that participating PRPs also pay the costs
incurred by the government in performing oversight of the PRPs' work. The cumula-
tive burden of all these risks, costs, and potential liabilities may be so great that the
PRPs will be inclined to turn down a settlement opportunity and let the government
do the work itself.
Risks of "sitting back" U The list of drawbacks to letting the government do the work
begins with a widespread assumption that the work managed by the government may
be performed less efficiently. In addition, if the government performs the RI/FS and
the PRPs have no voice in the decision among remedial alternatives, the remedy
selected may be far more costly, with minimal incremental health or environmental
benefits, to the tremendous disadvantage of the PRPs. That risk is aggravated by the
statutory scheme governing Judicial review. PRPs may be prohibited from challenging
decisions by the government in the course of its work until the end of the process,
when the government seeks reimbursement through a cost recovery action. At that
time, their rights to Judicial review are limited to challenges based on the administra-
tive record. That limitation will make it almost impossible to challenge government
decisions because, without the ability to introduce evidence and cross-examine
witnesses, it will be extremely difficult to prove that the government made mistakes.
Moreover, during the performance of an RI/FS by the government, the PRPs will have
extremely limited access to the technical work product of the government and no
meaningful opportunity to subject that work product to independent technical review.
The bottom line is a Hobson's choice. Most PRPs with extensive experience in
grappling with Superfund liabilities endeavor to negotiate reasonable consent
agreements, first to perform the RI/FS and then to perform the actual cleanup. The
desirability of entering into such agreements obviously depends on the circumstances
of each case. Unfortunately, as one grows older, and wiser, and sadder, those
judgments are not any easier to make.
ENVIRONMENTAL CRIMES AND THE
THE TIME HAS COME .AND IT IS HARD TIME
JUDSON W. STARR, ESQUIRE
THOMAS J. KELLY, JR. ESQUIRE
JUDSON STARR is a partner in the Washington, D.C. office of
Venable, Baetjer, Howard & Civiletti where he focuses on
environmental litigation, corporate accountability assessments
and investigations. Before joining the firm in October 1988,
he served as the first Chief of the Environmental Crimes
Section in the Lands and Natural Resources Division of the
Department of Justice, where he was responsible for the
creation, development and direction of the federal
environmental crimes program. A frequent panelist, lecturer,
and author on environmental enforcement issues, Mr. Starr is a
1975 graduate of Georgetown University Law Center.
THOMAS KELLY is a senior associate in the Washington, D.C.
office of Venable, Baetjer, Howard & Civiletti and practices in
the firm's Investigation & Defense Group. Before joining the
firm, he was an Assistant U.S. Attorney in the District of
Columbia. Mr. Kelly received his law degree in 1980 from the
Catholic University of America.
THIS ARTICLE IS DUE FOR PUBLICATION IN AN UPCOMING ADDITION OF
THE ENVIRONMENTAL LAW REPORTER. IT IS REPRINTED WITH THE
PERMISSION OF THE ENVIRONMENTAL LAW INSTITUTE
II. THE MECHANICS OF THE NEW SENTENCING GUIDELINES: HOW
THE RULES WORK.
III. A LOOK AT HOW THE RULES APPLY TO PAST CASES.
IV. THE ENVIRONMENTAL OFFENDER FACES A GREATER LIKELIHOOD
OF JAIL UNDER THE GUIDELINES.
V. THE GUIDELINES STILL ALLOW FOR SOME FLEXIBILITY.
VI. THE PROSPECT OF INCREASED JAIL TIME DOES NOT DIMINISH
THE POTENTIAL FOR FINES.
VII. THE APPLICATION OF THE SENTENCING GUIDELINES TO
ENVIRONMENTAL CRIMES AND THE SENTENCING GUIDELINES:
THE TIME HAS COME # .. BUT IT IS HARD TIME
People engaged in business activities subject to regulation
under the environmental laws probably took little note of the
recent rules published by the U.S. Sentencing Commission.I/
Some individuals may be doomed, however, to long remember the
far-reaching and serious impact of these rules. For those who
practice law in the environmental field, they too need to
appreciate these new rules and the manner in which they change
the landscape of environmental enforcement. The one thing that
can be said with certainty about these new rules is that they
appreciably up the ante in the manner in which criminal
enforcement of the environmental laws has been perceived -- and
practiced -- up to this point.
When these new rules were published, environmental
crimes quietly attained, if not "big league status" compared
with serious crimes of violence, then certainly some parity
with other so-called white collar or managerial crimes. Judges
will now be required to view environmental crimes far more
seriously than they have in the past and defendants in these
cases are only now just beginning to experience their impact.
The rules are but one more indication of the permanent place
environmental crimes have come to occupy in the law enforcement
community/ and in the federal government's overall
environmental enforcement strategy.-/
In a nutshell, these rules require judges to follow
strict measures within certain guidelines when sentencing for
specifically designated crimes -- including a category
separately identified as environmental offenses. In what used
to be a highly subjective process, the rules remove nearly all
the discretion judges have traditionally enjoyed at the
sentencing stage. Now it is more a matter of making
mathematical computations.A/ Removing unwarranted
disparities and ensuring proportionality in sentencing between
defendants found guilty of similar conduct was one of the goals
of the Sentencing Commission. Ostensibly criminals convicted
of one offense in California now will receive roughly the same
sentence for a similar conviction to the same offense in
Another goal was to remove the uncertainty that has
previously characterized the sentencing process and make it
less of a guessing game. If a defendant pleads guilty or is
convicted of certain charges, it is much less a roll of the
dice as to what sentence will be imposed than under the
previous process. These changes in the rules have also
dramatically altered the role for counsel. New strategies to
deal with these changes are called for at all stages of the
process, but now more than ever, before charges are brought and
after a conviction or plea of guilty.
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Moreover, sentences will now be determinate, meaning
that the convicted individual will serve the entire length of
the sentence subject only to limited "good time" credits.-/
Parole is abolished under these rules. Judges cannot impose a
sentence only to then suspend it in favor of a period of
probation as has happened up to this point with predictable
frequency in environmental cases. Further, for all categories
of crimes the Sentencing Commission has set the ranges for what
these periods of incarceration will be and for environmental
crimes in particular, the incarceration ranges are steep and
harsh.f/ Jail time will become the norm rather than the
exception under the new rules.
No longer can one charged with environmental
wrongdoing take refuge in the relatively light sentences --
generally probation -- typically imposed for environmental
violations. People engaged in business who have typically
capitalized on their first time offender status will now find
their backgrounds less relevant as mitigating factors. Those
who have claimed that the conviction was for mere "technical"
or regulatory violations which caused neither harm to the
environment nor threat to the public's health and safety will
now find little solace in these rules. In fact, a majority of
those who have already been convicted for environmental
offenses and received only probation would now most likely
spend time behind bars under the new sentencing rules. Coupled
with all the other indicia-/ evidencing not less but more
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environmental prosecutions, the new rules are important to
The first two cases to be sentenced under the new
sentencing rules illustrate these points. In those cases, the
defendants were sentenced to 21 months and 27 months in jail,
respectively, upon their convictions. Interestingly, both
their cases involved illegal dredging and filling of wetlands
and to further underscore the point, no one had ever been
sentenced to jail in any other pre-guidelines wetlands case.-
THE MECHANICS OF THE NEW SENTENCING GUIDELINES:
HOW THE RULES WORK
To determine the range of sentences a judge may impose
for an environmental offense, the acts underlying each count of
an indictment must be thoroughly analyzed under the federal
environmental enforcement provisions as encompassed by the
sentencing guidelines.- The first environmental enforcement
provision covers crimes under the Clean Water Act and the
Resource Conservation and Recovery Act.11/ Both provisions
contain versions of the "knowing endangerment" rule which
provides penalties of a fine or imprisonment (or both) for
persons] who knew at the time of the violations that he
placed another person in imminent danger of death or serious
bodily injury .. ."2 The other two guidelines deal
with offenses involving the mishandling of hazardous or toxic
substances or pesticides,/ and with the mishandling of
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"other pollutants."14/ The guidelines ascribe a numerical
base offense level depending on the type of violation.-
Added or subtracted to the base offense level are certain
amounts for "specific offense characteristics."16/ These
amounts are added to the base level to account for such factors
as repeated discharges of pollutants17/ or for discharges
without a permit.8/
Once the specific offense characteristic has been
added to the base number, further adjustments to the total are
made depending on the culpability of the particular defendant.
For example, if the defendant was a ring leader, organizer,
supervisor or manager, the offense level is increased by two to
four levels.12/ Adjustments are also made depending upon the
actual or potential harm that resulted from the offense,
augmented by the presence of certain enumerated factors such as
the nature and quality of the substance involved, the duration
of the offense, and the risk associated with the offense.2'
By the same token, the total offense level could also decrease
if, for example, the defendant provided substantial assistance
to the government.-L A further downward adjustment can
result depending upon the defendant's remorse or whereee the
defendant clearly demonstrates a recognition and affirmative
acceptance of personal responsibility for the criminal
conduct."'22 For multiple count convictions, the above steps
are repeated and the total offense level is calculated pursuant
to the multiple count provisions found at Chapter 3, Part D of
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the guidelines. In general, the multiple count provisions will
increase a sentence only when the offense represents additional
conduct that is not otherwise accounted for by the guidelines.
Thus, in most environmental cases the multiple count provisions
will not result in an increased sentence because the provisions
already provide for repetitive and ongoing misconduct.-'
After the total offense level is calculated and the
defendant's prior criminal history is accounted for, the range
for the particular sentence is derived from the sentencing
table.2' For example, a total offense level of eight
translates to a sentencing range of two to eight months of
incarceration.5/ Lastly, the guidelines establish specific
rules concerning sentencing options. For example, probation
can only be awarded when the minimum term of imprisonment in
the range specified by the sentencing table is zero months,
(offense levels one through six).2/ Similarly, a defendant
may be considered for community confinement (i.e., halfway
house) if the minimum term of imprisonment specified by the
sentencing table is at least one but not more than six months
(offense levels seven through ten).27/ In such a case, the
court has the option of sentencing the defendant to a halfway
house for the minimum term followed by a period of
probation.8/ The guidelines also speak to supervised
release, restitution and fines.
Judges can depart from the sentences prescribed by the
guidelines, but will find it difficult to sentence a defendant
- 6 -
below the suggested minimum sentence. There are two enumerated
instances, however, where the court can depart downward. The
first instance is where the defendant has provided substantial
assistance to the government, and the government moves for a
departure. The guidelines state:
Upon motion of the government stating that
the defendant has made a good faith effort
to provide assistance in the investigation
or prosecution of another person who has
committed an offense, the court may depart
from the guidelines.2./
The second instance where a sentencing court may
impose a sentence outside the established guideline range is
when the court makes a determination "that there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines."-' It
should be noted, however, that judges may also use this section
to depart upward when imposing a sentence. In either of these
two circumstances, the court is required to state on the record
its reasons for departing from the guideline range and either
side may appeal from the decision.
A LOOK AT HOW THE RULES APPLY TO PAST CASES
To better understand how these calculations work in
practice, here is how they would apply to several earlier
cases. These illustrations also serve to demonstrate the
- 7 -
difference between what an individual might have received under
the guidelines compared to what the defendant actually received
before the guidelines were enacted. As will be seen, this
difference is considerable and ominous.
In one of the earliest reported environmental crimes
cases, United States v. Frezzo Brothers. Inc., 602 F.2d 1123
(3d Cir. 1979), the defendants were convicted by a jury on six
counts of willfully and negligently discharging pollutants into
a navigable water of the United States without a permit, in
violation of the Clean Water Act.31/
Frezzo Brothers, Inc. was a family operated
corporation engaged in the mushroom farming business. As a
part of the business, Frezzo Brothers, Inc. produced compost to
provide a growing base for the mushrooms. The compost was
comprised mainly of hay and horse manure mixed with water and
allowed to ferment outside on wharves.
The Frezzo's farm had a 114,000 gallon concrete
holding tank designed to contain water run-off from the compost
wharves and to recycle water back to them. The farm had a
separate storm water run-off system that carried rain water
through a pipe to a channel box located on adjoining property
owned by another mushroom farm. The channel box was connected
by a pipe to a tributary which flowed directly into a navigable
The corporate defendant, Frezzo Brothers, Inc. and
individual defendants, Guido and James Frezzo, were charged and
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convicted of six counts/ of Clean Water Act violations
stemming from repeated unpermitted discharges of contaminated
runoff into the nearby waterway. The corporate defendant was
fined $50,000, and the individual defendants received jail
sentences of thirty days each and fines totalling $50,000.
Analyzing the case under the guidelines, each
defendant would receive a base offense level of six since the
offense involved the mishandling of environmental
pollutants. Moreover, each defendant would receive a six
level upward adjustment under the specific offense
characteristic to account for the repeated discharge of the
pollutant,-/ and an additional four level upward adjustment
for the disposal of the pollutant without a permit./ The
total offense level thus equals sixteen. Under the guidelines
an offense level of sixteen translates to a sentencing range of
twenty-one to twenty-seven months6/ in jail.
Because the six-count indictment was comprised of
closely-related counts involving substantially the same
activity, the defendants' offense level would not increase
because of the additional counts for which they were
convicted.37/ However, the defendants could possibly have
received an upward adjustment for their aggravated role in the
offense in addition to the above adjustments if it was
determined that they were the organizers, leaders, managers or
supervisors in the criminal activity.8/ The offense level
would have increased by two,-/ for a total offense level of
- 9 -
eighteen. Translated under the sentencing guidelines, the
defendants could have been sentenced from twenty-seven to
thirty-three months in jail, clearly more stringent than the
one month sentence actually imposed.
In a more recent case, United States v. Hoflin, 880 F.
2d 1033 (9th Cir. 1989), the defendant was convicted of aiding
and abetting the disposal of hazardous waste during his tenure
as the Director of Public Works for the City of Ocean Shores,
Washington in violation of the Resource Conservation and
Recovery Act (RCRA).0/ He was also convicted of aiding and
abetting the burial of sludge at the city's sewage treatment
plant, contrary to the conditions of the plant's operating
permit in violation of the Clean Water Act.4/
The Public Works Department of Ocean Shores had
purchased 3,500 gallons of paint for road maintenance from 1975
through 1982. As painting jobs were finished 55-gallon drums
containing paint waste were returned to the Public Works
Department's yard. Empty drums were used elsewhere or given
away but evidence produced at trial revealed that the defendant
directed an employee of his department to bury other drums
containing spent paint wastes at the sewage treatment plant.
Almost two years after the disposal, one of the
defendant's former employees reported the incident to state
authorities. After inspecting the plant, the state authorities
referred the matter to the EPA. EPA's criminal investigators
recovered the drums, but because several of the drums had no
- 10 -
lids or had been crushed, paint wastes had already leaked into
the soil. EPA's soil samples tested positive for hazardous
wastes under the RCRA.4' In addition, it was revealed
during the investigation that the defendant had directed
several truck loads of grease which had been collected at a
city owned facility to be buried in the ground in violation of
the Clean Water Act.4
The grand jury indicted the defendant on three
counts. Count One charged Hoflin with conspiracy to dispose of
hazardous waste without having obtained a permit in violation
of 18 U.S.C. 371 and 18 U.S.C. 2. Count Two charged the
defendant with disposing of the paint wastes without a permit
in violation of 18 U.S.C. 2 and the RCRA. Count III charged
the defendant with disposing of the grease in violation of 18
U.S.C. 2 and the Clean Water Act. The jury found the
defendant guilty on Counts II and III, and not guilty on
Count I. The District Court suspended the imposition of
sentence and placed the defendant on two years probation. Had
the offense occurred subsequent to November 1, 1987, the
effective date of the sentencing guidelines, the result would
have been significantly different.
Under the guidelines Hoflin would have received a base
offense level of eight since the offense involved the
mishandling of a hazardous substance.- He would also have
received a four level upward adjustment to account for the
discharge, release, or emission of hazardous substances.5/
- 11 -
Furthermore, he would have received an additional four level
upward adjustment for the disposal of the paint waste without a
permit for a total offense level of sixteen.46/
For the Clean Water Act violations, no additional jail
time would have resulted because only misdemeanor charges were
available at the time. Congress has since upgraded knowing
violations of the Clean Water Act to felony status.47 If
the evidence supported a felony charge Hoflin may have received
an additional upward adjustment.
Moreover, the defendant might have received at least a
two level upward adjustment for being "an organizer, leader,
manager, or supervisor" in the offense conduct.48/ Thus, had
the defendant been sentenced under the federal sentencing
guidelines he probably would have received an offense level of
eighteen, which is equal to a sentencing range of twenty-seven
to thirty-three months in jail.49/ Sentencing the defendant
to his actual sentence of probation would not have been an
option to the district court judge unless the court could have
pointed to some factor which the Sentencing Commission did not
take into consideration when formulating the guidelines,5/ a
result which is highly unlikely.
The above two examples are intended merely to give the
reader a sense of the guidelines. Under the new sentencing
guidelines, it is difficult to predict a jail sentence with
absolute certainty unless you have all the sentencing materials
and facts at your disposal. One fact, however, can be stated
- 12 -
with complete certainty, a large number of people convicted for
environmental offenses are now going to be sentenced to jail
terms. The question is no longer whether a defendant in
environmental cases will go to prison, but rather for how
In addition to the potential jail sentence, the white
collar defendant must also be aware that he could receive a
substantial fine. The guidelines require that except in
certain limited circumstances, "the court shall impose a fine
in all cases."'2/ The exception allows a defendant to
establish either that he is not able to pay all or part of the
fine or that the fine would unduly burden the defendant's
dependents. The court may then impose a lesser fine or waive
the fine altogether.5-/ Depending upon the offense level,
the guidelines provide a minimum and maximum fine. For
example, for an offense level of sixteen, the range of fines is
$5,000 to $50,000.54/
THE ENVIRONMENTAL OFFENDER FACES A GREATER LIKELIHOOD OF JAIL
UNDER THE GUIDELINES
In United States v. Mills. 88 Crim. 03100 (N.D.F1.
Apr. 17, 1989), application of the guidelines was a matter of
first impression in the environmental area. Some of the
offenses occurred prior to the effective date of the guidelines
yet others fell within its jurisdiction. The defendants were
indicted on six counts of knowingly dredging a canal and
- 13 -
discharging fill materials in the wetlands in violation of the
Clean Water Act.
At issue was a tract of land on which a previous owner
had filled wetlands to build a driveway. Soon after the U.S.
Army Corps of Engineers notified the landowner that he needed a
permit in order to place the fill material, the landowner sold
the parcel of land to Ocie Mills and his son for approximately
one-third of its fair market value. The evidence at trial
established that the defendants purchased the property with
full knowledge that a permit was required and with the
intention of ignoring any cease and desist order issued by the
Corps of Engineers. Moreover, the defendants continued to fill
wetlands. Interestingly, the six-count indictment charged the
defendants with three counts that predated the guidelines and
with three counts which were subject to the guidelines. A jury
convicted the defendants on all six counts. The district court
sentenced the defendants on the guideline offenses to
twenty-one month terms of imprisonment.
The jail sentence was derived as follows. A base
offense level of six was assigned because the violations
involved the mishandling of environmental pollutants other than
a toxic waste./ Because the offense resulted in an
"ongoing, continuous or repetitive discharge, release, or
emission of a pollutant into the environment," six more points
were added from the special offense characteristics.6/ In
addition, the offense level was increased an additional four
- 14 -
levels for a total of sixteen because the offense involved
discharging without a permit.57/ The total offense level
translated to a period of incarceration between 21 to 27 months
of real jail time without possibility of parole.58/
Similarly, in United States v. John Pozsgai, 88 Crim.
00450 (E.D.Pa. Jul. 13, 1989), the defendant was charged with
41 counts of systematically filling a 14-acre tract of land
despite repeated warnings by inspectors of the Army Corps of
Engineers that such activity required a permit under the Clean
Water Act. The defendant continued illegal activity even after
receiving a cease and desist order and a temporary restraining
order enjoining him from further unpermitted fill activity.
Counts 16 through 41 of the indictment were subject to the
sentencing guidelines. Upon conviction, the trial court
imposed a twenty-seven month sentence, the maximum within the
applicable range.5-/ Additionally, the judge fined the
defendant $200,000, imposed a special assessment of $2,000, and
ordered the restoration of the wetlands property in accordance
with a plan established by the Corp of Engineers.
At the time of sentencing, the trial judge stated:
I think the sentence has to take into account not only
punishment for that high degree of willfulness but
also [to] serve as a deterrent to others who will
doubtless be tempted by economic pressures which many
people, I suppose most people, show to violate those
laws and the deterrence has to be that if they play
the lottery of the criminal justice system and are
caught that the costs will be high.-L.
- 15 -
In United States v. Bogas, No. 88-282 (N.D.Ohio filed
Oct. 4, 1988), the third environmental case in the country to
be subject to the sentencing guidelines, the government is
seeking a seven-year sentence for William N. Bogas, a former
Commissioner of the Cleveland Hopkins International Airport.
Mr. Bogas pleaded guilty to two felony charges; making
false statements to the EPA in violation of 18 U.S.C. 1001,
and failing to report the release of a hazardous substance into
the environment, a violation of CERCLA.
The charges relate to the March 1988 illegal burial of
148 drums containing various quantities of toluene, xylene,
flammable paint wastes, and an assortment of other materials in
a pit at the Cleveland Hopkins Airport. As part of the burial,
the drums were crushed by a bulldozer, releasing much of their
contents into the environment. Local police and fire officials
discovered the burial as it was occurring. The indictment
reflected Bogas' delivery of conflicting testimony where he
stated that he had no knowledge of any drums being disposed of
in the pits, then represented that only eight to ten empty
drums were disposed of in the pit and that the drums had
previously contained water-based paints.6/
Bogas under the new rules now faces a maximum prison
sentence of three years under CERCLA and a $250,000 fine. For
his false statement to EPA, he now faces the maximum of five
years of imprisonment and a $250,000 fine. (N.B. to the
editor. At the time of publication, the judge had yet to rule
on Bogas' sentence.)
7577f (10/18/89) 16 -
V. THE GUIDELINES STILL ALLOW ROOM FOR SOME FLEXIBILITY
As is readily apparent from the foregoing, attorneys
on both sides of an environmental crimes investigation today
must take the sentencing procedures seriously from the earliest
stages of the case. The practitioner who fails to understand
the impact of the new rules on his or her client will be unable
to effectively represent that client. So too it is for the
prosecutor who will now build a case with one eye on the
guidelines. Yet, although the new rules appear to be
essentially mathematical, they do not entirely handcuff either
side in the sentencing process. Rather, there is room for some
flexibility under the new sentencing guidelines when one is
dealing with environmental offenses.
Whether one is dealing with an environmental crime or
a run of the mill criminal case, there are some fundamental
areas of the guidelines with which the participants must be
thoroughly conversant. One important area with which the
participants must be familiar is the section which defines the
defendant's "relevant conduct". The guidelines state, in part:
The conduct that is relevant to determining
the applicable guideline range
includes all acts and omissions
committed or aided and abetted by the
defendant, or for which the defendant would
be otherwise accountable, that occurred
during the commission of the offense of
conviction, in preparation for that offense,
or in the course of attempting to avoid
detection or responsibility for that
offense, or that otherwise w;r in
furtherance of that offense. /
- 17 -
The above provision goes on to state that the
defendant's "relevant conduct" can be used to determine his
base offense level, specific offense characteristics and
Chapter Three adjustments (e.g., Role of the Offense). To
illustrate the point, if a defendant enters a plea of guilty or
is convicted of mishandling environmental pollutants on
one occasion without further adjustment he would be assigned an
offense level of six. A sentencing judge however, could
increase the offense level an additional six levels pursuant to
the relevant specific offense characteristic if the defendant's
"relevant conduct" resulted in an "ongoing, continuous or
repetitive discharge."4' In the above example, if the
defendant's total offense level remained at six, he would be
eligible for probation. Thus, by examining the defendant's
"relevant conduct", the court will be substantially increasing
the sentencing range and taking away any alternative sentencing
options. In this example without any further adjustments the
defendant's sentence could be increased to sixteen months
incarceration with no chance for probation or community
As one can readily see, the net effect of the
"relevant conduct" provision is to render the number of counts
in the indictment irrelevant because the defendant's "relevant
conduct" could mean the same sentence whether the conviction
was for one or fifteen counts. Furthermore, counsel must be
aware that an admission of incriminating information not known
- 18 -
to the government prior to the imposition of sentence may mean
a potential increase in the offense level.
Another important provision of which the practitioner
must be aware is the two level reduction for a defendant's
"acceptance of responsibility." As previously noted, the
guidelines provide for a two level reduction of the offense
level for a defendant who clearly demonstrates a "recognition
and affirmative acceptance of personal responsibility" for the
offense.-/ Moreover, the availability of a reduction under
this provision is not controlled by whether the conviction was
by trial or plea of guilty. Thus, it is anticipated that the
defendant will always attempt to negotiate this reduction.
Another significant aspect of the sentencing
guidelines deals with the individual who cooperates with the
government. The so called "work-off" provision provides that
upon motion by the government, the court has the ability to
depart from the guidelines when a defendant has provided
"substantial assistance in the investigation or prosecution of
another person who has committed an offense."6/ Assuming
the client is a target of the investigation, he or she must be
apprised by counsel of the fact that by cooperating with the
government there exists the possibility that the court may
depart from the guidelines. This is an extraordinary provision
because it permits the sentencing judge to award probation to a
person who would otherwise be incarcerated. Moreover, the
government is permitted to file a motion pursuant to Federal
- 19 -
Rule of Criminal Procedure 35 for a reduction of sentence based
upon the ongoing cooperation of the defendant for up to one
year after the sentencing date.8/
Another important aspect of the guidelines to which
the participants must adjust is the new role of the probation
officer. Under the guidelines, the probation officer's power
has dramatically changed. The probation officer, serving as
the independent arm of the court, is required to identify and
resolve legal and factual issues and bring the facts of the
real offense conduct to the attention of the court by preparing
the presentence report, a critical document for the creative
advocate. The report will state the relevant facts, any
disputes by the government or defense counsel and the evidence
on which they rely, the factors that argue for aggravation or
mitigation of the sentence or for a departure from the
guideline range, and the sentencing decisions the court must
make to meet the standard of proof for applying or not applying
a specific factor.
Either side can brief areas of disagreement for
argument before the sentencing court. To do so however, it is
important to consult the local rules of the U.S. District Court
in which the client will be appearing. The rules will specify
what a defendant must do in order to preserve the right to
argue his interpretation of the relevant calculations at the
time of sentencing, and to preserve the right of appeal.
- 20 -
Lastly, to be an effective advocate in the
environmental arena, the practitioner must be aware of the
environmental provisions which specifically invite the
opportunity for negotiations. For example, at first look
Section 2Q1.3 Mishandling of Other Environmental Pollutants
appears to be mathematical. The defendant is assigned an
offense level of six which is subject to various adjustments
depending upon which specific offense characteristic applies.
Upon closer inspection however, one quickly sees that the
environmental section is anything but mathematical. The
"Application Notes" found within each of the environmental
provisions provide additional flexibility. To illustrate,
Section 2Q1.3(b) lists the various specific offense
characteristics applicable to the above offense. Subsection
(4) states: "If the offense involved a discharge without a
permit or in violation of a permit, increase by 4 levels."
When you consult the Application Notes which interpret the
offense characteristics, however, you learn that the
defendant's offense level is adjusted up to two levels in
either direction depending upon the nature and quantity of the
substance involved and the risk associated.69/ Thus, in a
typical environmental case this may lead to a mini-trial and a
battle between each side's experts over the risk associated
with a particular hazardous or toxic substances.
This is just a sampling of the mental process the
practitioner must go through and the list goes on. One thing
- 21 -
is clear, however, and that is the fact that all of the demands
these cases place on the practitioner -- who faces the double
duty of knowing the nuances of both criminal and environmental
laws and procedures -- the Sentencing Guidelines require yet
THE PROSPECT OF INCREASED JAIL TIME DOES NOT DIMINISH THE
POTENTIAL FOR FINES.
In addition to the potential jail sentence, the
environmental offender must also be aware that he could be
required to pay a substantial fine. Under the guidelines the
court "shall impose a fine in all cases," with only a few
Depending upon the offense level the guidelines
provide a minimum and maximum range. For example, for an
offense level of twenty-one, such as the one accumulated by
Ocie Mills, supra, the fines range from $7,500 to $75,000.
Again, the probation department will conduct an investigation
and prepare a presentence report which will include a
determination of the defendant's ability to pay a fine.1/
When determining the appropriate fine to impose, the
sentencing judge is not limited to the fine table found within
the guidelines. If the judge determines that the defendant
derived some pecuniary gain from the offense, or if the offense
resulted in a pecuniary loss to someone other than the
defendant, the judge may fine the defendant the greater of
twice the gain or twice the loss, unless imposition of a fine
would unduly complicate or prolong the sentencing
- 22 -
process.2/ In environmental cases, this section has the
potential of resulting in some startling fines.7l/
THE APPLICABILITY OF THE SENTENCING GUIDELINES TO CORPORATIONS
Presently, there are no sentencing guidelines for
corporations similar to those for individuals. However, every
entity regulated by the environmental laws and regulations
should be aware that their turn is coming. It is safe to
assume, based upon the current proposals soon to be published
for public comment, that fines imposed against corporations
which violate the environmental laws will be substantially
increased much as they have been for individuals.
Generally, the drafts currently under discussion by
the Sentencing Commission have one common goal -- to punish the
organization for its criminal conduct and to induce companies
to take reasonable and prudent steps to prevent criminal
conduct through self-policing mechanisms.74/ Although not
stated explicitly as a goal, the proposed guidelines have the
effect of inducing companies to come forward with incriminating
evidence when it is discovered and before the government begins
its investigation. In this way, the proposed guidelines create
their own voluntary disclosure program and encourage companies
to go beyond the typical environmental audit of the type in
current use before the criminal program was manifest, and to
create enhanced in-house environmental compliance mechanisms.
- 23 -
The two proposals presently before the U.S. Sentencing
Commission are based on a detailed structure. One
recommendation is based on a fine calculation determined by the
greater of the pecuniary loss caused by the offense or the
pecuniary gain to the defendant. As proposed, the pecuniary
loss for environmental offenses would include the reasonable
cost for clean-up plus any dimunition in property values.7
This figure would then be modified by aggravating and
mitigating factors defined within the proposed guidelines.
The other proposal, developed by the Criminal Division
of the Department of Justice, suggests a different approach.
Under this proposal, an offense level is calculated in much the
same manner for organizations as it is under the existing
guidelines for individuals. Once the offense level is
calculated, a range of fines from $1,000 to $5,000,000 would be
imposed depending upon the offense level. If, however, these
calculations result in a fine which is less than the actual
gain or loss resulting from the offense, the higher figure
would be imposed.
Lastly, it is important to keep in mind that under the
present sentencing scheme,71/ the alternative fine provisions
of 18 U.S.C. 3571(d) continue to apply to corporations.
Therefore, if a sentencing court determines that the
corporation derived a pecuniary gain from the offense, or if
the offense resulted in pecuniary loss to another, the
corporation may be fined up to twice the gain or twice the
7577f (10/18/89) 24 -
Over the last twenty years American industry has faced
ever increasing environmental regulation. Today, violations of
these regulations may very well lead to criminal convictions
and jail for managers and officers who fail to follow the
rules, or who allow others to break them. The big change has
been in enforcement, not in the law itself -- at least up until
the rules were enacted with regard to sentencing procedures.
Avoiding both the government's tough new approach to
environmental enforcement coupled with the far reaching impact
of the Sentencing Guidelines requires a realistic understanding
of the problem, and a willingness to undertake a full
assessment of the risks now faced by both companies and
individuals. The key to avoiding the harsh result of the
Sentencing Guidelines is first and foremost to recognize the
reality of the threat of criminal prosecution. Thus the
initial step is to come to grips with the reality that in
today's enforcement climate no one involved even remotely with
responsibility for environmental compliance is immune from
criminal prosecution. That same person must also understand
that one does not have to be bad to do bad when it comes to
environmental crimes. A "black heart" commonly associated with
other criminal activity is not required to sustain a conviction.
The second step to avoiding prosecution is to ensure
compliance by implementing procedures that go well beyond the
- 25 -
traditional environmental audit. When most environmental
auditing practices and procedures were developed, little if any
consideration was given to limiting exposure to individual
corporate liability. Criminal enforcement of the environmental
laws had not yet come of age. However, with the development of
the government's criminal program, now the object of increased
respect by virtue of the treatment of environmental crimes have
received under the Sentencing Guidelines, uncovering -- and
correcting -- systematic, institutional and individual
compliance problems has become a top priority. In the final
analysis, prevention comes far cheaper than mounting a criminal
defense. Companies which make environmental compliance a
genuine priority can generally avoid the consequences of the
Sentencing Guidelines, and their officers can spend time in the
boardroom rather than the courtroom.
- 26 -
1I/ These rules, which became effective on November 1,
1987, are contained in the U.S. Sentencing Commission
Guidelines Manual [hereinafter Guidelines Manual]
published by an eight member commission established by
the Comprehensive Crime Control Act of 1984, 28 U.S.C.
991 at _&_. The constitutionality of the Commission
and its guidelines was recently upheld in United
States v. Mistretta, 109 S.Ct. 647 (1989).
2/ In 1987, the Attorney General upgraded the then
Environmental Crimes Unit to a Section. In 1988,
EPA's criminal investigators achieved permanent law
enforcement powers when Congress passed the Powers of
the Environmental Protection Agency, Pub. L. No. 582,
4(a), 102 Stat. 2958 (Nov. 1, 1988)(codified at
18 U.S.C. 3063 (1988)).
-1 See, e.g., Hedges, Enviro-Cops on the Prowl for
Polluters, U.S. News and World Report, Oct. 9, 1989,
4/ One commentator has said that the charts and
commentary that comprise the guidelines "look more
like a tax table than a handbook for dispensing
justice." Applying Formula to Justice. Sentencing
Rules Limit Judge's Discretion, Washington Post,
June 12, 1989, at Al.
51 After the first full year that a sentence has been
served, a defendant is entitled to a reduction of
fifty-four days per year for what formerly was
described as "time off for good behavior."
18 U.S.C. 3624(b) (1987).
l/ Because the Sentencing Commission had less historical
data to draw on for environmental crimes compared to
other crimes, the Commission set the range of
sentences for environmental crimes at a level judged
by the Commission to be "appropriate" when placed in
the context of other white collar crimes for which
data was available. "The Commission was also aware
that Congress has expressed views in favor of tougher
penalties for white collar offenses, a category that
includes many environmental offenders. Environmental
offenses can -- and quite often do -- pose a threat to
society that far outweighs their number." Address by
Judge William A. Wilkins, Chairman, U.S. Sentencing
Commission, National Conference on Local and State
Enforcement of the Environmental Laws (Mar. 30, 1989).
- 27 -
LI Resources dedicated to the investigation and
prosecution of environmental crimes continue to
increase at EPA, the FBI and the Department of Justice
on the federal level as well as on the state and local
levels. See Address by The Honorable Dick Thornburgh,
Attorney General of the United States, The Oceans '88
Conference (Oct. 31, 1988). Congress had given
additional impetus to increased enforcement by
upgrading environmental crimes from misdemeanors to
felonies each time it reauthorized existing
environmental laws (the Clean Water Act in 1987, and
the Resource Conservation and Recovery Act in 1986).
1/ Courts have traditionally suspended imposition of jail
terms and have awarded probation. For example in
United States v. Holland, No. 83 Crim. 891 (S.D.F1.
May 27, 1988), James Holland received a suspended
six-month prison term and was placed on probation.
Similarly, in United States v. Marathon Development
Corp., No. 87 Crim. 129-MC (D.Mass. Apr. 4, 1987),
Terrance Goeghegan, a senior vice president, received
a suspended six-month prison term and was placed on
probation for one year. The court also imposed a
$10,000 fine. Finally, in United States v. The Bill
Walters Companies, No. 88 Crim. 375 (D.Colo. Dec. 22,
1988), Mr. Walters was fined $15,000 and received no
V/ Guidelines Manual, Offenses Involving the Environment,
Ch. 2, Part Q at 147.
10/ 33 U.S.C. 1251-1387 (1977), as amended by Pub. L.
No. 100-688 (1988).
1I/ 42 U.S.C. 6901-6992 (1976), as amended by Pub. L.
No. 100-582 (1988).
12/ See Clean Water Act, 33 U.S.C. 1319(c)(3)(1977)
(amended 1988); Resource Conservation and Recovery
Act, 42 U.S.C. 6928(e)(1976)(amended 1988).
13/ Guidelines Manual, 2Q1.2 Mishandling of Hazardous or
Toxic Substances or Pesticides: Recordkeeping.
Tampering, and Falsification [hereinafter Hazardous
14/ Guidelines Manual, 2Q1.3 Mishandling of Other
Environmental Pollutants: Recordkeeping. Tampering.
and Falsification [hereinafter Other Pollutants].
- 28 -
15/ Guidelines Manual, 2Q1.2 Hazardous Substances,
assigns a base offense level of 8 for any mishandling
of hazardous or toxic substances while 2Q1.3 Other
Pollutants assigns a base offense level of 6 for
mishandling of other pollutants.
16/ See Guidelines Manual, 2Q1.2(b), 2Q1.3(b).
17/ Guidelines Manual, 2Q1.2 Application Notes 5 and 8.
18/ Guidelines Manual, 2Q1.3 Application Notes 4 and 7.
19/ Guidelines Manual, 3B1.1 Aggravating Role.
20/ See generally Guidelines Manual, 2Q1.2(b), 2Q1.3(b).
21/ Guidelines Manual, 5K1.1 Substantial Assistance to
Authorities (Policy Statement).
22/ Guidelines Manual, 3E1.l Acceptance of
21/ SSee Guidelines Manual, 2Q1.-2(b)(l)(A),
24-/ Guidelines Manual, 4A1.1 Criminal History Category.
25/ Guidelines Manual, Sentencing Table, Ch. 5, Part A at
26/ Guidelines Manual, 5Bl.l(a)(l).
27/ Guidelines Manual, 5Bl.l(a)(2). For example, if the
defendant's total offense level equals eight, the
sentencing range would be two to eight months.
Therefore the court must impose a two month period of
community confinement before it can award probation.
See Guidelines Manual, 5C2.1 Imposition of a Term of
28/ Guidelines Manual, 5C2.1(c)(3), (d)(2).
29/ 18 U.S.C. 3553(e).
0/ Guidelines Manual, 5K2.0 Grounds for Departure
31/ 33 U.S.C. 1311(a), 1319(c)(Supp. 1973).
32/ See Frezzo Brothers. Inc., 602 F.2d at 1124.
- 29 -
Guidelines Manual, 2Q1.3(a).
:4-/ Guidelines Manual, 2Q1.3(b)(1)(A).
51 Guidelines Manual, 2Q1.3(b)(4).
36/ Provided that the defendant has no prior criminal
history. Guidelines Manual, Sentencing Table, Ch. 5,
Part A at 216.
37/ Guidelines Manual, 3D1.2 Groups of Closely Related
38/ Guidelines Manual, 3B1.1 Aggravating Role.
39/ Guidelines Manual, 3Bl.l(c).
4/l 42 U.S.C. 6928(d)(2)(a).
41/ 33 U.S.C. 1319(c)(1)(2).
42/ 42 U.S.C. 6928(d)(2)(4).
41/ Supra note 41.
44/ Guidelines Manual, 2Q1.2.
45/ Guidelines Manual, 2Q1.2(b)(l)(B).
46/ Guidelines Manual, 2Q1.2(a). A base offense level
of 6 adjusted upward by another 6 points for the
continuous and ongoing nature of the crime, would be
further increased by 4 more points for the discharge
of pollutants without a permit. Thus, the total
offense level equalled 16 which would translate under
the Guidelines to a 21 to 27 month period of
47/ 33 U.S.C. 1319(c)(2).
48/ Guidelines Manual, 3B1.1(c).
49./ Guidelines Manual, Sentencing Table, Ch, 5, Part A at
5/ Guidelines Manual, 5K2.0 Grounds for Departure.
- 30 -
51/ In another recent case, Robert D. McKiel, who was a
company president, a veteran of the Korean War, and
the former head of the Lowell, Massachusetts Chamber
of Commerce was recently sentenced to four months in
jail after he pleaded.guilty to discharging 48,000
gallons of waste water containing toxic metals into
the Merrimack River from 1984 to 1988 in violation of
the Clean Water Act and the RCRA. Mr. McKiel was
sentenced to prison, in spite of the fact that his
corporation, Astro-Circuit, a now-bankrupt
electroplating company had installed a
state-of-the-art pollution control system which failed
to keep them in compliance with regulations.
52/ Guidelines Manual, 5E4.2 Fines for Individual
Defendants [hereinafter Fines].
53/ Guidelines Manual, 5E4.2 Fines, subsection (f)
allows the defendant to establish either that he is
not able to pay all or part of his fine, or that a
fine would unduly burden the defendant's dependents.
The court may then impose a lesser fine or waive the
i54 See Fine Table, 5E4.2(c)(3).
55/ Guidelines Manual, 2Q1.3 Other Pollutants.
56/ Guidelines Manual, 2Q1.3(b)(l)(A).
57/ Guidelines Manual, 2Q1.3(b)(4).
58/ Guidelines Manual, Sentencing Table, Ch. 5, Part A at
59/ Clearly the trial court took into account the
defendant's apparent scofflaw attitude with respect to
the cease and desist order and the temporary
restraining order when imposing the maximum sentence
allowed under the sentencing guidelines range.
60/ Transcript of sentencing in United States v. Pozsgai,
88 Crim. 450-1 (E.D. Pa. Jul. 13, 1989), before the
Honorable Marvin Katz, District Judge, pp. 66-67.
1/ The record revealed that when employees told Bogas
that he should check with the EPA before undertaking
any action, he reportedly stated that "he was the EPA
at the airport" (emphasis added).
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Guidelines Manual, 1B1.3.
f_./ Guidelines Manual, 2Q1.3.
64/ Guidelines Manual, 2Q1.3(b)(1)(A).
65/ Guidelines Manual, 5C2.1(f).
66/ Guidelines Manual, 3E1.1.
67/ Guidelines Manual, 5K1.1.
68/ 18 U.S.C. 3553(e):
Limited authority to impose a sentence below a
statutory minimum--Upon motion of the government, the
court shall have the authority to impose a sentence
below a level established by statute as minimum
sentence so as to reflect a defendant's substantial
assistance in the investigation or prosecution of
another person who has committed an offense. Such
sentence shall be imposed in accordance with the
guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of Title
28, United States Code.
6S/ Guidelines Manual 2Q1.3, Application Note 7 states:
Subsection (b)(4) applies where the offense
involved violation of a permit, or where there was a
failure to obtain a permit when one was required.
Depending upon the nature and quantity of the
substance involved and the risk associated with the
offense, a departure of up to two levels in either
direction may be warranted.
10/ Guidelines Manual, 5E4.2 Fines for Individual
71/ Guidelines Manual, 5E4.2(f).
17/ 18 U.S.C. 3571(d). The alternative fine provision
is as follows:
Alternative fine based on gain or loss--If any
person derives pecuniary gain from the offense, or if
the offense results in pecuniary loss to a person,
other than the defendant, the defendant may be fined
not more than the greater of twice the gross gain or
twice the gross loss, unless imposition of a fine
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under this subsection would unduly complicate or
prolong the sentencing process.
73/ 18 U.S.C. 3571(d). The applicability of the section
to environmental offenses has yet to be fully
experienced, however, the fine in certain cases would
74/ Section 8 of the proposed Guidelines states: If the
offenses represented an isolated incident of criminal
activity that was committed notwithstanding bona fide
policies and programs of the organization reflecting a
substantial effort to prevent conduct of the type that
constituted the offense, subtract [a percentage not
yet agreed to] of the amount determined pursuant to
the above applicable guideline fine range. Moreover,
there exists the potential to reduce the potential
fine if the organization, upon discovering the
offense, and prior to the commencement of a government
investigation promptly reports the offense to the
government authorities. Thus, by either self-policing
or self-reporting the organization will substantially
reduce its criminal penalty.
75/ Proposed 8C3.5 Offenses Involving the Environment
The gross pecuniary loss, for the purpose of
determining the guidelines fine range, includes the
reasonable cost of clean-up that has or will be made,
plus the diminution in private and public property
value caused by the offense and not rectified by the
77/ See generally 18 U.S.C. 3571 (1987). Fines for
organizations are presently being determined as
(c) Fines for organizations--Except as provided
in subsection (e) of this section, an organization
that has been found guilty of an offense may be fined
not more than the greatest of;
(1) the amount specified in the law setting forth the
(2) the applicable amount under subsection (d) of
(3) for a felony, not more than $50,000;
(4) for a misdemeanor resulting in death, not more
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(5) for a Class A misdemeanor that does not result in
death, not more than $200,000;
(6) for a Class B or C misdemeanor that does not
result in death, not more than $10,000; and
(7) for an infraction, not more than $10,000.
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