ALI-ABA Course of Study Environmental Litigation

At and sponsored with the cooperation of the University of Colorado School of Law

June 21 - 24, 2006 Boulder, Colorado

TABLE OF CONTENTS Page PROGRAM xi FACULTY PARTICIPANTS xiii FACULTY BIOGRAPHIES xv STUDY MATERIAL 1. Standing and Rights of Action in Environmental Litigation 1

By Roger Beers Table of Contents 3 Study Outline 5 2. Ripeness and Exhaustion in Environmental Litigation 57

By Roger Beers Table of Contents 58 Study Outline 59 3. The Nature of the Administrative Record 73

By William M. Cohen 4. Litigating the Environmental Administrative Law Case 95

By Daniel Riesel 5. Use and Misuse of Technical Data: Telling the Scientific Story to Scientific 117 Virgins By Elaine L. Spencer 6. Legal Strategy, Storytelling, and Complex Litigation 129

By Allan Kanner and Tibor Nagy Table of Contents 130 Study Outline 131 7. Release Reporting 161

By James A. Bruen 2006 Summary of Major Federal Release Reporting Requirements 163 2006 Summary of Major California Release Reporting Requirements 172 8. Current Issues in Discovery in Environmental Litigation - 2006 189

By Allen Kezsbom

vii Table of Contents 190 Study Outline 191 9. Discovery of Digital Information 257

By Ronald J. Hedges Notice Regarding Rule-Making Process 258 Table of Contents 260 Study Outline 261 Attachments 394 10. Complex Case Management 419

By Ronald J. Hedges Notice 421 Table of Contents 422 Study Outline 423 11. Preliminary Injunctions, and Stays Pending Appeal in Environmental 523 Litigation By Daniel Riesel Guide to Article 525 Study Outline 526 Endnotes 557 Order to Show Cause (Concord Village Owners, Inc. v. Barram (E.D. N.Y.,

CV-972607 (ADS/VVP))) 583 12. Litigating in the Bankruptcy Court 589

By Jack M. Zackin 13. Scientific Proof and Examination of Experts in Environmental Litigation 607

By Daniel Riesel Scope of Article 609 Study Outline 612 Endnotes 690 14. Embrace Tiger – Return to Mountain 701

By Anthony Z. Roisman Study Outline 703 Presentation Slides 716 15. General Advice for Experts Testifying at Deposition 721

By Stephen T. Washburn 16. New Developments and Trends in Clean Air Act Litigation and 727 Enforcement:

New Source Review By Peter Hsiao, Max Sloves and Kristin Kellet

viii 17. Private Party Hazardous Substances Litigation 739

By Peter Hsiao 18. Determining Liability and Allocation of Response Costs in Hazardous 747 Materials Litigation By Daniel Riesel and Ashley Miller Table of Contents 749 Study Outline 750 19. Trespass by Pollution: Remedy by Mandatory Injunction 807

By Anthony Z. Roisman 20. The Manual and CERCLA 815

By Ronald J. Hedges 21. Citizen Suits and Defenses Against Them 823

By Edward Lloyd Table of Contents 825 Study Outline 828 Appendix A: Federal Statutory Citizen Suit Provisions 858 Appendix B: State Citizen Suit Statutes 859 22. The Public Trust Doctrine, Parens Patriae, 861 and the Attorney General as the Guardian of the State's Natural Resources By Allan Kanner 23. Federal and State Hazardous Substance Litigation 923

By John C. Cruden John C. Cruden, CERCLA Overview 925 Table of Contents 925 Study Outline 929 John C. Cruden and Bruce S. Gelber, Federal Civil Environmental

Enforcement: Process, Actors and Trends 984 U.S. Department of Justice, Environment and Natural Resources Division,

Summary of Litigation Accomplishments – Fiscal Year 2005 1010 Selected 2006 Environment and Natural Resources Division Press Releases 1037 24. NEPA in the Courts 1051

By William M. Cohen Table of Contents 1052 Study Outline 1055 25. House & CEQ NEPA Task Forces 1131

By William M. Cohen 26. "Little NEPAs" and Their Environmental Impact Assessment Procedures 1139

By David Sive and Mark A. Chertok Study Outline 1141

ix Endnotes 1157 Appendix: Little NEPA Citations 1167 27. Federal Regulation of Wetlands 1169

By Mark A. Chertok and Katherine Sinding Scope of Article 1171 Study Outline 1173 28. Settlement Issues in Federal Enforcement Actions 1283

By Carol E. Dinkins 29. Ethics Considerations for the Environmental Lawyer 1301

By Carol E. Dinkins 30. Particular Ethical Problems in Environmental Litigation 1311

By David Sive Study Outline 1313 Study Outline 1313 Appendix: Retatement of the Law Third: The Law Governing Lawyers

(excerpts) 1332 Appendix: RESTATEMEMT OF THE LAW THIRD: THE LAW

GOVERNING LAWYERS (excerpts) 1332 §63: Using or Disclosing Information When Required by Law 1332 §66: Using or Disclosing Information to Prevent Death or Serious Bodily

Harm 1334 §66: Using of Disclosing Information to Prevent Death or Serious Bodily

Harm 1334 §67 Using or Disclosing Information to Prevent, Rectify, or Mitigate

Substantial Financial Loss 1341 §67: Using or Disclosing Information to Prevent, Rectify, or Mitigate

Substantial Financial Loss 1341 §109: An Advocate's Public Comment on Pending Litigation 1354 §109: An Advocate's Public Comment on Pending Litigation 1354 §128: Representing Clients with Conflicting Interests in Civil Litigation 1363 §128: Representing Clients with Conflicting Interests in Civil Litigation 1363 31. Proposed Federal Rule of Evidence 502: Attorney-Client Privilege and 1375 Work Product: Limitations on Waiver (April 26, 2006) By Kenneth J. Withers 32. U.S. EPA Glossary of Environmental Abbreviations and Acronyms 1387

x ALI-ABA Course of Study ENVIRONMENTAL LITIGATION Sponsored with the cooperation of the University of Colorado School of Law June 21-24, 2006 Boulder, Colorado

PROGRAM

Tuesday, June 20, 2006 3:00 p.m. Early Registration, Fleming Law Building

Wednesday, June 21, 2006 8:00 a.m. Registration and Continental Breakfast, Fleming Law Building 9:00 a.m. Introductory Remarks and Course Overview – Mr. Riesel 9:15 a.m. Jurisdiction, Standing, Ripeness, the Record, and Deference to Administrative Agencies – Messrs. Beers, Cohen, and Riesel 10:15 a.m. Coffee Break 10:30 a.m. Use and Misuse of Technical Data – Dr. Morrison, Ms. Spencer, and Mr. Withers Use of technical data and demonstrative exhibits at trial 12:15 p.m. Lunch Break 1:45 p.m. Effective Advocacy in Environmental Litigation – Mr. Kanner (the Plaintiff's View) and Mr. Bruen (the Defendant's View); Commentator: Mr. Kezsbom Setting the theme and implementing it; Use of technical data before lay and technical triers of fact; Use of demonstrative exhibits 2:45 p.m. Coffee Break 3:00 p.m. Discovery in Environmental Litigation – Messrs. Kezsbom, Riesel, and Withers; Commentator: Judge Hedges New rules relating to electronic discovery; Data preservation and the "litigation hold"; Spoliation (electronic and otherwise); Obligations under Rule 30(b)(6); Establishing and maintaining privileged status of environmental audits; Discovery of experts 4:15 p.m. Faculty Demonstration: Applications for a Temporary Restraining Order, Preliminary Injunction, and Discovery – Judge Hedges, Mr. Kezsbom, and Ms. Spencer 5:00 p.m. Adjournment for the Day; Reception for Registrants and Faculty

Thursday, June 22, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. The Resolution of Environmental Disputes in Bankruptcy Court – Mr. Zackin; Commentator: Mr. Hsiao 9:45 a.m. Coffee Break 10:00 a.m. Examination of Experts and Scientific Proof – Messrs. Hsiao, Kanner,

xi 10:00 a.m. Examination of Experts and Scientific Proof – Messrs. Hsiao, Kanner, Kezsbom, Riesel, Roisman, and Zackin; Professor Lloyd; and Ms. Spencer Finding and Selecting Experts - Ms. Spencer and Professor Lloyd Daubert and its Progeny - Messrs. Roisman and Hsiao Direct Examination - Mr. Kanner; Commentator: Mr. Zackin Cross-Examination - Mr. Kezsbom 12:00 noon Lunch Break 1:30 p.m. Faculty Demonstration: Deposition of an Expert – Messrs. Beers, Bruen, and Kezsbom and Dr. Morrison 2:30 p.m. Coffee Break 2:45 p.m. Federal and State Hazardous Substance Litigation – Mr. Gold; Commentators: Messrs. Hsiao and Riesel 3:45 p.m. Private Multi-Party Hazardous Substance Litigation: Aviall and its Progeny; Allocation and Defenses; Management of Complex Litigation – Judge Hedges and Messrs. Riesel and Hsiao 5:15 p.m. Adjournment for the Day

Friday, June 23, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. Relationship Between Statutory and Tort Litigation – Messrs. Roisman and Riesel 9:45 a.m. Coffee Break 10:00 a.m. Faculty Demonstration: Trial of an Environmental Case – Judge Hedges, Presiding; Messrs. Kanner, Beers, Roisman, and Washburn 12:15 p.m. Lunch Break 1:45 p.m. Citizen Suits and Defenses Against Them – Mr. Chertok and Professor Lloyd 3:00 p.m. Coffee Break 3:15 p.m. Enforcement Litigation: New lnitiatives: Criminalization of Enforcement; Defensive Strategies – Ms. Dinkins and Mr. Gold; Commentator: Mr. Lloyd 4:15 p.m. National Resource Damage Litigation – Messrs. Kanner and Cruden and Ms. Dinkins 5:15 p.m. Adjournment for the Day

Saturday, June 24, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. NEPA Litigation; "Little NEPAs"; Interaction with Wetlands and Similar Litigation – Messrs. Beers, Chertok, and Cohen 9:45 a.m. Coffee Break 10:00 a.m. Negotiation and Settlement – Judge Hedges, Ms. Dinkins, Mr. Cruden, and Professor Lloyd 11:15 a.m. Ethics and Professional Responsibility in Environmental Litigation – Ms. Dinkins, Messrs. Cruden and Withers, and Professor Lloyd 12:15 p.m. Adjournment

xii ALI-ABA Course of Study Environmental Litigation

At and sponsored with the cooperation of the University of Colorado School of Law June 21 - 24, 2006 Boulder, Colorado PLANNING CHAIR

Daniel Riesel, Esquire Sive, Paget & Riesel, P.C. 10th Floor 460 Park Avenue , NY 10022

PLANNING CHAIR EMERITUS

David Sive, Esquire Sive, Paget & Riesel, P.C. 10th Floor 460 Park Avenue New York, NY 10022

FACULTY

Roger Beers, Esquire John C. Cruden, Esquire 202 Glenwood Avenue Room 2143 New London, CT 06320-3029 950 Pennsylvania Avenue, NW James A. Bruen, Esquire Washington, DC 20530 Farella Braun + Martel LLP Carol E. Dinkins, Esquire Russ Building, 30th Floor Vinson & Elkins L.L.P. 235 Montgomery Street 2300 First City Tower San Francisco, CA 94104 1001 Fannin

Mark A. Chertok, Esquire Houston, TX 77002 Sive Paget & Riesel, P.C. Steve C. Gold 10th Floor P.O. Box 7611 460 Park Avenue Ben Franklin Station New York, NY 10022 Washington, DC 20044 William M. Cohen, Esquire The Honorable Ronald J. Hedges 607 14th Street, NW 50 Walnut Street Washington, DC 20005 Newark, NJ 07101

xiii Peter Hsiao, Esquire Anthony Z. Roisman, Esquire Morrison & Foerster LLP National Legal Scholars Law Firm, P.C. Suite 3500 Stonewall Farm 555 West Fifth Street 84 East Thetford Road Los Angeles, CA 90013 Lyme, NH 03768 Allan Kanner, Esquire Elaine L. Spencer, Esquire Kanner & Whiteley L.L.C. Graham & Dunn, PC 701 Camp Street Pier 70 New Orleans, LA 70130 Suite 300 Allen Kezsbom, Esquire 2801 Alaskan Way Fried, Frank, Harris, Shriver & Jacobson LLP Seattle, WA 98121 One New York Plaza Mr. Stephen T. Washburn New York, NY 10004 Suite 700 Edward Lloyd 6001 Shellmound Street Room 831 Emeryville, CA 94608 435 West 116h Street Kenneth J. Withers, Esquire New York, NY 10027 Suite 1430 Robert D. Morrison, Ph.D. 201 Washington Street DPRA Incorporated Phoenix, AZ 85004 Suite 308 Jack M. Zackin, Esquire 100 E San Marcos Boulevard Sills Cummis Epstein & Gross, P.C. San Marcos, CA 92069 One Riverfront Plaza Newark, NJ 07102

xiv FACULTY BIOGRAPHIES Planning Chair

Daniel Riesel, New York, New York Sive, Paget & Riesel, P.C. A.B., Union College; LL.B., Columbia University Lecturer in Law, (1994- ); Adjunct Professor of Law, Benjamin N. Cardozo School of Law (1986-92) Government and Public Service: Assistant United States Attorney, Southern District of New York (1967-73; Chief Environment Protection Unit, 1972-73); Special Counsel, Village of Croton-on-Hudson Planning Board (1989-92); New York State Study Advisory Committee (1979-81); United States Air Force (Judge Advocate General's Department, 1962-66) Memberships: American Bar Association; New York State Bar Association (Chair, Environmental Law Section); Association of the Bar of the City of New York (Chair, Committee on Environmental Law, 1984-87) Publications Include: ENVIRONMENTAL ENFORCEMENT, CIVIL AND CRIMINAL (Law Journal Press, 1997); NATIONAL LAW JOURNAL (Environmental Columnist, 1993-); ENVIRONMENTAL LAW AND PRACTICE GUIDE (Contributing Author) (Matthew Bender 1992); A PRACTICAL GUIDE TO ENVIRONMENTAL LAW (Contributing Author) (ALI-ABA 1987); INDUSTRY GUIDE TO ENVIRONMENTAL COMPLIANCE (Contributing Author) (Harrison Publications 1984); HAZARDOUS WASTE AND TOXIC TORTS REPORTER (Contributing Editor, 1987- )

Planning Chair Emeritus

David Sive, New York, New York Sive, Paget & Riesel, P.C. Professor, Pace University School of Law A.B., College; LL.B., Columbia University Lecturer on Environmental Litigation, Columbia Law School (1977- ); Visiting Adjunct Professor of Law, Cornell Law School (1991), University of Hawaii School of Law (1988), Indiana University School of Law (1981), University of Washington School of Law (1979), University of Wisconsin Law School (1977), University of Utah College of Law (1976) University of Colorado School of Law (1975); Adjunct Associate Professor on New York and Federal Practice, New York University School of Law(1964-76) Honors: Senior Fulbright Scholar and Lecturer, Australia (1994); Environmental Law Institute Award, In Recognition of Outstanding Contributions to the Improvement of Environmental Law and Policy (1984); ALI-ABA Award of Merit for Contributions to Continuing Legal Education in the Field of Environmental Law (1983); Sierra Club William Douglas Award for Outstanding Service in the Field of Environmental Law (1981); New York State Bar Association Root/Stimson Award for Outstanding Public Service (1977) Public Service: Administrative Conference of the United States (1971-75); New York State

xv Energy Research and Development Authority (1976-96); Legal Advisory Committee, Presidential Council on Environmental Quality (1970-74); Committee on Natural Resources and Agriculture, New York State Constitutional Convention (Executive Director, 1967); New York Court of Appeals Task Force on Women in the Courts (1984-86); Natural Resources Defense Council (Trustee and Executive Committee Member, 1971- ) Memberships: American Law Institute; Environmental Law Institute (Chairman, 1973-83); American Bar Association; New York State Bar Association; Association of the Bar of the City of New York (Chairman, Committee on Environmental Law, 1968-71; Executive Committee, 1972-76) Publications Include: A PRACTICAL GUIDE TO ENVIRONMENTAL LAW (ALI-ABA 1987) (Contributing Author); ROWLEY ON PARTNERSHIP (2d Edition 1958) (Co-Author)

Faculty Roger Beers, New London, Connecticut B.A., Baylor University; LL.B., Harvard University Adjunct Professor, University of San Francisco Law School (1987-90) Government and Public Service: Staff Attorney, Natural Resources Defense Council, Inc. (1973-80) Honors: William O. Douglas Award (Sierra Club, 2004) Memberships: California State Bar Association (Advisor to Environmental Law Section); San Francisco Bar Association; The Utility Reform Network (Trustee, 1990- ) Publications Include: CHLORINATED SOLVENTS: TECHNICAL AND LEGAL CONSIDERATIONS (Co-Author) (Argent Communications Group 1999); PETROLEUM HYDROCARBONS: TECHNICAL AND LEGAL CONSIDERATIONS (Co-Author) (Argent Communications Group 1998); Preliminary Litigation Issues, in 1 CALIFORNIA ENVIRONMENTAL LAW AND LAND USE PRACTICE (Matthew Bender 1996); CHOOSING AN ELECTRICAL ENERGY FUTURE FOR THE PACIFIC NORTHWEST (Co-Author) (Energy Research and Development Administration 1977); WHO'S MINDING THE SHORE: A CITIZEN'S GUIDE TO COASTAL MANAGEMENT (Co-Author) (National Oceanic and Atmospheric Administration 1976)

James A. Bruen, San Francisco, California Farella Braun + Martel LLP B.A., Claremont Men's College; J.D. Stanford University Government Service: Assistant U.S. Attorney (N.D. Cal.) (1970-77; Chief, Civil Division, 1975-77); Attorney, Federal Communications Commission (1968-70) Memberships: American Bar Association (Vice Chairman, Environmental Quality Committee, Section of Natural Resources, Energy and Environmental Law, 1989-93; Co-Chairman, Enforcement Litigation Subcommittee, Environmental Litigation Committee, Section of Litigation 1990-92); American Inn of Court (Master-at-Large, San Francisco Chapter); International Society for Environmental Epidemiology; United States Technical Advisory Group to International Standards Organization (ISO) Technical Committee 207 on Environmental Management Publications Include: Strategy for Complying with United States Environmental Laws, in INTERNATIONAL LEGAL STRATEGY (Co-Author) (Special Japanese Language

xvi Edition on United States Environmental Law 1993); Trial Preparation: A 9-Step Organization and Management System, in PHARMACEUTICAL PRODUCT LIABILITY (Shepard's/McGraw-Hill, Inc. 1989); HAZARDOUS WASTE AND TOXIC TORTS: LAW AND STRATEGY NEWSLETTER (Contributing Editor, 1987-92); THE ROLLING TRIAL PREPARATION AGENDA: AN EFFECTIVE TOOL FOR ORGANIZING AND MANAGING COMPLEX ENVIRONMENTAL LITIGATION (Defense Research Institute 1985); TOXIC TORTS, HEALTH STUDIES AND SUPERFUND -- SYMBIOSIS GONE AMOK (Prentice Hall Law & Business 1987); DEMETER, AN EARTH RESOURCES SATELLITE (Stanford University 1968) (Co-Author); JURY PERSUASIONS: TRIAL TECHNIQUES AND PSYCHOLOGICAL STRATEGIES (Contributor) (Prentice Hall Law and Business 1993)

Mark A. Chertok, New York, New York Sive Paget & Riesel, P.C. B.A., State University of New York at Buffalo; J.D., Harvard University Adjunct Professor, Cardozo Law School (1996- ); Adjunct Professor, Pace University School of Law (1992-95); Adjunct Associate Professor, Real Estate Development Program of the Columbia University Graduate School of Architecture, Planning and Preservation (1990-94) Memberships: American Bar Association (Section of Natural Resources, Energy and Environmental Law); New York State Bar Association (Section on Environmental Law Executive Committee, 1994- ; Co-Chair, Environmental Impact Committee, 1994- ); Association of the Bar of the City of New York (Committee on Environmental Law, 1988-91; Committee on Civil Rights, 1976-78) Publications Include: NEW YORK ENVIRONMENTAL LAW, A LEGAL TREATISE (New York State Bar Association 1992 & 1995 Supp.) (Contributing Author); NEW YORK ENVIRONMENTAL LAW HANDBOOK (New York State Bar Association 1988) (Contributing Author)

William M. Cohen, Washington, D.C. Adjunct Professor, American University, Washington College of Law Of Counsel, Perkins Coie LLP B.A., Michigan State University; J.D., George Washington University Honors: National Environmental Quality Award (Natural Resources Council of America, 2000); Attorney General's Distinguished Service Award; Special Achievement Awards, Award for Meritorious Service, and Special Commendation Award (U.S. Department of Justice) Government and Public Service: Environment and Natural Resources Division (and predecessors, U.S. Department of Justice (1966-2000; Chief, General Litigation Section, 1985-2000; Trial Attorney, 1971-86; Attorney, Appellate Section, 1965-70) Publications Include: Chapter, Litigating NEPA Cases, THE NEPA LITIGATION GUIDE (Co-Author) (ABA 1999); Chapter, Highlights of NEPA in the Courts, in ENVIRONMENTAL POLICY AND NEPA (Co-Author) (St. Lucie Press 1997); NEPA Chapter in A P RACTICAL GUIDE TO ENVIRONMENTAL LAW (Co-Author) (ALI-ABA 1987)

John C. Cruden, Washington, D.C.

xvii John C. Cruden, Washington, D.C. Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice B.S., United States Military Academy; M.A. (Government and Foreign Relations), University of Virginia; J.D., Santa Clara University Other Government Service: Chief, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice (1991-95); Chief Legislative Counsel, U.S. Army (1988-91); Special Counsel to the Assistant Attorney General, Civil Division, U.S. Department of Justice (1987-88); United States Army Memberships: American Law Institute (ex officio); American Bar Association (Council, (Section of Natural Resources, Energy and Environmental Law); District of Columbia Bar Association (President, 2005- ; Board of Governors): National Council of Bar Presidents Publications Include: Chapter, Environmental Law and National Security, in NATIONAL SECURITY LAW (Carolina Academic Press 1990

Carol E. Dinkins, Houston, Texas Vinson & Elkins L.L.P. B.S., University of Texas; J.D., University of Houston Adjunct Assistant Professor of Law, University of Houston College of Law (1971-73) Government and Public Service: U.S. Department of Justice: Deputy Attorney General of the United States (1984-85); Assistant Attorney General, Environment and Natural Resources Division (1981-83); Chair, Privacy and Civil Liberties Oversight Board (Presidential Appointment) (2005- ); Texas Parks and Wildlife Commission (1997-2001); Chair, Texas Governor Bush's Task Force on Conservation (1999-2000); Federal Judicial Advisory Group to Senators Gramm and Hutchison (1985-96; 2000-01); University of Houston Vision Commission (1996); Texas Legislature Task Force on Judicial Selection (1990); Texas Legislature Joint Select Committee on the Judiciary (1987-89); Native Hawaiians Study Commission (1981-83); Chair, President's Task Force on Legal Equity for Women (1981-83); National Consumer Cooperative Bank Board (1981); Policy Committee of the Galveston Bay National Estuary Program Management Conference (1988-92); Texas Governor's Flood Control Action Group (1980-81); Chair, Texas Governor's Task Force on Coastal Zone Management (1979); Texas Environmental Protection Committee of the Interstate Oil Compact Commission (1979-81); Environmental Law Institute (Director, 1985-91) Honors: Margaret Brent Women Lawyers of Achievement Award (1999); Kate Stoneman Award (Albany Law School, 2003) Fellowships: American Bar Foundation; Texas Bar Foundation; Houston Bar Foundation Memberships: American Law Institute (Adviser, RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS); American Bar Association (Board of Governors, 2005- ;House of Delegates: 1992- ; Chair, Rules and Calendar Committee, 2000-02; Nominating Committee, 1994-97 and 1999- ; Standing Committee on the Federal Judiciary, 1997-98) (Section of State and Local Government Law: Chair, 1991-92) (Section of Environment, Energy and Resources: Chair, 1997-98; Council, 1992-95; Chair, Environmental Quality Committee, 1985-88) (Section of Litigation: Chair, Environmental Litigation Committee, 1989-92) (Special Committee on Energy Law,

xviii 1983-84); State Bar of Texas (Environmental Law Advisory Committee); Federal Bar Association; International Bar Association; Inter-American Bar Association; Houston Bar Association (Chair, Environmental Law Section 1990-92; Chair, Committee on the Environment, 1990-92); Environmental and Energy Study Institute (Director, 1986- ); The Nature Conservancy (Board of Governors, 1996- ; Chair, Texas Chapter, 1996- ; Trustee, Texas Chapter, 1987-96); Association of Former U.S. Attorneys Publications Include: ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS (Contributing Author) (BNA Books 1995); BUSINESS AND COMMERCIAL LITIGATION (Contributing Author) (West Group 1998); New Solutions for Old Problems in Newark Bay, 29 SETON HALL L.REV. 60 (1998); Impact of the Environmental Justice Movement on American Industry and Local Government, 47 ADMIN. L.REV. 337 (1995); ABA JOURNAL (Board of Editors, 1998- )

Steve C. Gold, Washington, D.C. Senior Attorney, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice A.B. Harvard University; J.D., Yale University Other Government and Public Service: Law Clerk to Hon. Raymond J. Dearie (E.D.N.Y.) (1987-88)

The Honorable Ronald J. Hedges, Newark, United States Magistrate Judge for the District of New Jersey (Appointed 1986) B.A., University of Maryland; J.D., Georgetown University Adjunct Professor, Georgetown University Law Center (2006- ); Adjunct Professor, Seton Hall University School of Law (1993- ) Government and Public Service: Law Clerk to Hon. Richard J. Hughes (N.J.) (1977-78); Advisory Group of Magistrate Judges (Member, 2001-05); Civil Justice Reform Act Advisory Committee, U.S. District Court for the District of New Jersey (Member, 1991-94; Reporter, 1994- ); Lawyers Advisory Committee, U.S. District Court for the District of New Jersey (1993- ); Compliance Judge, Court Mediation Program, U.S. District Court for the District of New Jersey (1992- ) Memberships: American Law Institute (Members Consultative Group, Principles of the Law of Aggregate Litigation, 2005- ); American Bar Association; Federal Bar Association; Historical Society of the United States District Court for the District of New Jersey (Advisor, Board of Directors); Association of the Federal Bar of the United States District Court for the District of New Jersey (Advisor, Board of Directors); Sedona Conference Advisory Board (2004- ); Sedona Conference Working Group on Protective Orders, Confidentiality, and Public Access (Member, 2003- ; Steering Committee, 2004- ); Sedona Conference Working Group on Best Practices for Electronic Document Retention & Production (Observer, 2004- ); Georgetown University Law Center National Law Alumni Board (2004- ); Georgetown University Law Center E-Discovery Advisory Board (2004- ) Publications Include: The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality and Public Access in Civil Cases (Co-Editor) (rev. Apr.2005 public comment draft) ; A View from the Bench and the Trenches: A Critical

xix public comment draft) ; A View from the Bench and the Trenches: A Critical Appraisal of Some Proposed Amendments to the Federal Rules of Civil Procedure, 227 F.R.D. 123 (2005); A Critical Appraisal of Proposed Amendment to Federal Rule of Civil Procedure 26(b)(5)(B), DIGITAL DISCOVERY & E-EVIDENCE (Mar. 2005); Striving for Judicial Balance During the War on Terrorism, 32 N.J. RPTR. 52 (Dec. 2002/Jan. 2003); REPORT OF CIVIL JUSTICE EXPENSE AND DELAY REDUCTION ADVISORY COMMITTEE, PLAN FOR IMPLEMENTATION, AND ANNUAL ASSESSMENTS OF PLAN, DISTRICT OF NEW JERSEY (Principal Author) (1991-97)

Peter Hsiao, Los Angeles, California Morrison & Foerster LLP B.A., University of Utah; J.D., University of California at Berkeley (Boalt Hall) Adjunct Professor, Southwestern University School of Law (1995-2000) Honors: Special Achievement Award, Unites States Attorney's Office (1993); Golden Eagle Award, United States Fish and Wildlife Service (1993); Special Commendation Award, Environment and Natural Resources Division, U.S. Department of Justice (1992) Government and Public Service: Assistant U.S. Attorney (C.D. Cal.) (1990-94); Judge Pro Tem, Municipal Court for the State of California (1991-96); Advisory Committee, California Integrated Waste Management Board (1998-2000); Commission on Judicial Nominees Evaluation (2001-02) Memberships: American Bar Association (Chair, Marine Resources Committee, 1996-98; Vice-Chair, Solid and Hazardous Waste Committee, 1997-99); State Bar of California (Chair, Environmental Law Section, 1999-2000; Chair, Standing Committee on Legal Services to the Poor, 1993-94); Los Angeles County Bar Association (Environmental Law Section, 1988-2005); American Institute of Chemical Engineers (1984-90) Publications Include: CALIFORNIA ENVIRONMENTAL LAW AND NATURAL RESOURCES HANDBOOK (Government Institutes 12th Ed. 2004) (Co-Editor and Author)

Allan Kanner, New Orleans, Louisiana Kanner & Whiteley L.L.C. B.A., University of Pennsylvania; M.A., J.D., Harvard University Adjunct Professor of Law, Tulane Law School (1990-2004); Visiting Lecturer in Law, University of California, Berkeley, School of Law (2004); Visiting Lecturer in Law, Yale Law School (2002); Visiting Senior Lecturer, Duke Law School (2001) Government and Public Service: Law Clerk to Hon. Robert S. Vance (5th Cir.) (1979-80) Fellowships: Louisiana Bar Foundation; New Jersey Bar Foundation Memberships: Association of Trial Lawyers of America (Chair, Environmental and Toxic Tort Litigation Section, 1986-87); Louisiana Trial Lawyers Association (Board of Governors, 1995-98) Publications: ENVIRONMENTAL AND TOXIC TORT TRIALS (Michie Co. 1991; 2d Ed., Lexis-Nexis, 2004); Tribal Sovereignty and Natural Resource Damages, PUBLIC LAND & RESOURCE L.REV. ((Spring 2004); The Use of Contingent Fees in Natural Resource Damage and Other Parens Patriae Cases, BNA TOXICS L. RPTR. (Aug. 23, 2004); Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor, L. & POLICY ( Apr. 2004); LOUISIANA JUDGES COMPLEX LITIGATION BENCH BOOK

xx (principal author) (1998); CIVIL RICO (Co-Author) (Center for Continuing Legal Education 1988); TOXICS LAW REPORTER (BNA) (Board of Advisors, 1987- ); T ULANE ENVIRONMENTAL LAW JOURNAL (Board of Contributors, 1988- ); ELI ENVIRONMENTAL LAW REPORTER (Advisory Board, 1996- )

Allen Kezsbom, New York, New York Fried, Frank, Harris, Shriver & Jacobson LLP B.A., ; LL.B., Harvard University Visiting Lecturer, Yale Law School (1991-92) Honors: Knox Fellowship (1965-66) Memberships: American Bar Association (Sections of Antitrust Law; Intellectual Property Law; Litigation; and Environment, Energy, and Resources); New York State Bar Association (Antitrust, Environmental, and Litigation Sections); Association of the Bar of the City of New York; Federal Bar Council; Environmental Law Institute; BNA Environmental Law Advisory Board Publications Include: Parent and Successor Liability: A Few Thoughts on the Eve of Cordova, TOXICS L. RPTR. (Apr. 8, 1998); No Need to Redefine Orphan Shares, CHEM. WASTE LIT. RPTR. (Nov. 1997); The Debate over Orphan Share Allocation, CHEM WASTE LIT. RPTR. (Aug. 1997); Environmental Crimes: The Indirect Applicability of the Guidelines, chapter in CORPORATE SENTENCING GUIDELINES, COMPLIANCE AND MITIGATION (Law Journal Seminars Press 1996); The Long and Winding Road of Corporate Parent and Successor Liability under CERCLA (Co-Author), in ENVIRONMENTAL DUE DILIGENCE GUIDE (BNA 1996); Corporate "Successor" Liability for CERCLA Cleanup Costs: Recent Developments, TOXICS L. RPTR. (Mar. 3, 1993)

Edward Lloyd, New York, New York Evan M. Frankel Clinical Professor in Environmental Law, Columbia Law School B.A., Princeton University; J.D., University of Wisconsin Government and Public Service: New Jersey Public Interest Research Group ( General Counsel, 1983- ; Staff Attorney and Executive Director, 1974-83); Eastern Environmental Law Center (Co-founder and Co-Director); New Jersey Pinelands Commission (2002- ); Founding Director, Law School Environmental Law Clinic (1985-2000); New Jersey Supreme Court Committee on Environmental Litigation; Environmental Defense Fund Litigation Review Committee (1991- );Conferee, New Jersey Governor's Conference on Electricity Policy, Planning and Regulation; Lecturer on environmental legal issues, Judicial College for New Jersey Judges; Trustee, Fund for New Jersey (2004- ) Honors: Environmental Legacy Award (New Jersey Environmental Lobby, 2006); Outstanding Environmental Achievement Award (Sierra Club, 2005); Ogden Award (Association of New Jersey Environmental Commissions, 2000); New York/New Jersey Baykeeper Award (2000) Memberships: New Jersey Environmental Voters' Alliance (Chair, Board of Directors, 1983-87) Publications Include: Supplemental Environmental Projects or SEPs Have Been Effectively Used in Citizen Suits to Deter Future Violations as Well as to Achieve Significant Supplemental Environmental Benefits, 10 WIDENER L.REV. 413 (2004)

xxi Robert D. Morrison, Ph.D., San Marcos, California DPRA Incorporated B.S. (Geology), University of Redlands; M.S. (Environmental Studies), California State University at Fullerton; M.S. (Environmental Engineering), University of Southern California; Ph.D. (Soil Physics), University of Wisconsin Specialty: Forensic review and interpretation of scientific data involving soil and groundwater contamination for cost allocation, source identification, and contaminant age dating Membership: Association of Groundwater Scientists and Engineers (Chair, Education Committee, 1992-96); American Statistical Association; Association for the Environmental Health of Soils; United States Science Advisory Board Publications Include: Over 100 peer-reviewed articles; INTRODUCTION TO ENVIRONMENTAL FORENSICS (Academic Press, 2001); ENVIRONMENTAL FORENSICS: A GLOSSARY OF TERMS (CRC Press 1999); ENVIRONMENTAL FORENSICS: PRINCIPLES AND APPLICATIONS(CRC Press 1999); CHLORINATED SOLVENTS: TECHNICAL AND LEGAL CONSIDERATIONS (Co-Author) (Argent Communications Group 1999); PETROLEUM HYDROCARBONS: TECHNICAL AND LEGAL CONSIDERATIONS (Co-Author) (Argent Communications Group 1998); ENVIRONMENTAL REPORTS AND REMEDIATION PLANS; FORENSIC AND LEGAL REVIEW (John Wiley & Sons 1995-97); GROUNDWATER MONITORING TECHNOLOGY: PROCEDURES, EQUIPMENT AND APPLICATIONS (Timco Mfg. Co. 1983); GROUND WATER (Editorial Board); GROUNDWATER MONITORING AND REMEDIATION (Editorial Board); INTERNATIONAL JOURNAL OF ENVIRONMENTAL FORENSICS (Editorial Board)

Anthony Z. Roisman, Lyme, New Hampshire National Legal Scholars Law Firm, P.C. A.B., Dartmouth College; LL.B., Harvard University Adjunct Professor/Research Fellow in Environmental Studies (1995- ), Luce Visiting Professor of Environmental Studies (1982), Dartmouth College; Adjunct Professor, George Washington University National Law Center (1981) Government and Public Service: Trial Lawyers for Public Justice (Executive Director, 1982-87); U.S. Department of Justice (Land and Natural Resources Division: Special Litigator for Hazardous Waste, 1981-82; Chief, Hazardous Waste Section, 1979-81) (Appellate Section, Tax Division, 1974-77); Natural Resources Defense Council (Senior Staff Attorney, 1977-79); Nuclear Regulatory Commission Advisory Panel on Atomic Safety and Licensing Board Nominations (1980-85); Nuclear Regulatory Commission Ad Hoc Committee for Review of Nuclear Reactor Licensing Reform Proposals (1982-83); Committee on Nuclear Safety Research, Commission on Physical Sciences, Mathematics and Resources, National Research Council, National Academy of Sciences/Engineering (1985-86); Brookings Task Force on Civil Justice Reform (1989); Memberships: District of Columbia Bar (Nominating Committee, 1977); Association of Trial Lawyers of America (Chair, Expert Witness Admissibility Litigation Group, 2003- ; Chair, Section on Toxic, Environmental & Pharmaceutical Torts, 1992; Environmental Law Committee, 1990- ; Co-Chair, Academic Liaison Committee,

xxii Environmental Law Committee, 1990- ; Co-Chair, Academic Liaison Committee, 1995- ); Environmental Policy Institute (Litigation Advisory Committee, 1984- ); Environmental Action Foundation (Advisory Board, 1982-88); Environmental Law Center, Vermont Law School (Advisory Board, 1994-2004); Environmental Law Clinic, Vermont Law School (Advisory Board, 2005- ) Publications Include: Preserving Justice: Defending Toxic Tort Litigation (Co-Author), FORDHAM ENVTL. L.REV. (Winter 2004); The Implications of G.E. v. Joiner for Admissibility of Expert Testimony, RES COMMUNES: VERMONT'S JOURNAL OF THE ENVIRONMENT (1998); The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors, PACE ENVTL. L.REV. (Fall 1997); Nuisance and the Recovery of "Stigma" Damages: Eliminating the Confusion (Co-Author), ENVTL. L. RPTR. (February 1996); Conflict Resolution in the Courts: The Role of Science, CARDOZO L. REV. (April 1994)

Elaine L. Spencer, Seattle, Washington Graham & Dunn, PC B.S., Iowa State University; J.D., Yale University Memberships: American Bar Association; Washington State Bar; Seattle-King County Bar Association; Building Industry Legal Trust Fund (Board of Trustees) Publications Include: Common Sense Trial Preparation in a High-Tech World, PRAC. LITIGATOR (2004); Good Forestry Practice: A Standard of Performance?, PROP & PROBATE (1998); Regulatory Takings and Inverse Condemnation, Chapter 110 of WASHINGTON REAL PROPERTY DESK BOOK (3d Ed., 1996); Dashed Investment-Backed Expectations: Will the Constitution Protect Property Owners from Excesses in Implementation of the Growth Management Act, U. PUGET SOUND L.REV.(1993); WSBA Environmental and Land Use Section Newsletter (Editor-in-Chief, 1987-89)

Stephen T. Washburn, Emeryville, California Managing Principal, ENVIRON International Corporation B.S.E., Princeton University; M.S. (Chemical Engineering), Massachusetts Institute of Technology Designated Subject Matter Expert (SME) in risk assessment and decision analysis (U.S. Army Educational Center) Government and Public Service: U.S. Environmental Protection Agency External Expert Peer Review Panels for Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities and for the multimedia, multi-pathway, and multiple receptor risk assessment (3MRA) model development for the Hazardous Waste Identification Rule (HWIR); selected by the American Society for Testing and Materials (ASTM) to provide training to state regulatory agencies on Risk-Based Corrective Action (RCBA); Risk Assessment Subcommittee of the Pennsylvania Science Advisory Board Publications Include: Risk of Vapor Migration from Subsurface Contamination into Indoor Air (Co-Author), in RISK ANALYSIS II (WIT Press, 2000); Development of Risk-Based Remediation Strategies (Co-Author), PRAC. PER. OF HAZARDOUS, TOXIC, AND RADIOACTIVE WASTE MANAGEMENT (April 1999); Potential Risks Associated with Vapor Migration from Ground Water into Buildings (Co-Author), in

xxiii Associated with Vapor Migration from Ground Water into Buildings (Co-Author), in RISK, RESOURCE AND REGULATION ISSUES) Batelle Press, 1998); Applying USEPA Risk Assessment Guidance in the 90s (Co-Author), HUMAN AND ECOLOGICAL RISK ASSESSMENT (June 1998)

Kenneth J. Withers, Phoenix, Arizona Managing Director, The Sedona Conference A.B., J.D., Northwestern University; M. Lib. Sci., Simmons College Government and Public Service: Senior Judicial Education Attorney, Federal Judicial Center ( - 2006); Director of Education, Social Law Library (Boston, Massachusetts) Honors: Excellence in Technology Award (Glasser LegalWorks, 2004); Electronic Evidence Thought Leadership Award (Kroll Ontrack, 2003); Lord Lloyd Kilgerran Award for best post-graduate essay in law and technology (British-Irish Legal Education Technology Association, 1999); Best Use of Technology Award (American Association of Law Librarians, 1998) Publications Include: ELECTRONIC DISCOVERY: THE CHALLENGES AND OPPORTUNITIES OF ELECTRONIC EVIDENCE (Federal Bar Association, 2001); Computer-Based Disclosure and Discovery in Civil Litigation, 2000 FED. CTS. L.REV. 2 and 2001 J. INFO L. & TECH. (UK) 1; Self-Deleting E-Mail: A Self-Delusion?, DISCOVERY EDGE (Fall 2000); THE INTERNET GUIDE FOR MASSACHUSETTS LAWYERS (Contributor and Editor, 1999)

Jack M. Zackin, Newark, New Jersey Sills Cummis Epstein & Gross, P.C. B.A., J.D., University of Virginia Fellow, American College of Bankruptcy Member, New Jersey State Bar Association (Past Chair, Bankruptcy Law Section)

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