NORTHERN KENTUCKY LAW REVMV Volume 25 Fall 1997 Number 1
Natural Resource and Environmental Law Issue
ARTICLES Smog, Science & the EPA ...... Kevin D. Hill 1
Overview of Brownfield Redevelopment Initiatives: A Renaissance in the Traditional Command and Control Approach to Environmental Protection ...... Philip J. Schworer 29
American Mining Congress v. Army Corps of Engineers:Ignoring Chevron and the Clean Water Act's Broad Purposes ...... BradfordC. Mank 51
SPECIAL ESSAY Comparative Risk Assessment and Environmental Priorities Projects: A Forum, Not a Formula ...... John S. Applegate 71
PRACTITIONER'S GUIDE The Use of Experts in Environmental Litigation: A Practitioner's Guide ...... Kim K Burke 111
NOTE United States v. Ahmad: What You Don't Know Won't Hurt You. Or Will It? ...... MichaelE.M. Fielman 141
Special Feature Introduction to the Best Petitioner and Respondent Briefs from the Fifth Annual Salmon P. Chase College of Law Environmental Law Moot Court Competition ...... M. PatiaR. Tabar 163
M oot Court Problem ...... 165
Best Brief, Petitioner ...... University of Cincinnati 181
Best Brief, Respondent ...... University of Wisconsin 209
ARTICLES
SMOG, SCIENCE & THE EPA
by Kevin D. Hill' The yellow fog that rubs its back upon the window-panes The yellow smoke that rubs its muzzle on the window-panes, Licked its tongue into corners of the evening, Lingered upon pools that stand in drains, Let fall upon its back the soot that falls from chimneys, Slipped by the terrace, made a sudden leap, And seeing that it was a soft October night, Curled about the house and fell asleep.2
I. INTRODUCTION On July 18, 1997, the Environmental Protection Agency (EPA) issued the new National Ambient Air Quality Standards ("NAAQS") for ground-level ozone.' The new standards, which amount to a tightening of previous regulations, have provoked a furious response from industrial trade groups, politicians and conservative think-tanks and have re-ignited the debate over the role of science in setting environmental policy.4 The new stan-
1. Associate Dean for Academic Affairs & Professor of Law, Ohio Northern University. 2. T.S. ELIOT, The Love Song of J. Alfred Prufrock, in THE COMPLETE POEMS AND PLAYS: 1909-1950, at 3-4 (1962). 3. 62 Fed. Reg. 38,856 (1997) (to be codified at 40 C.F.R. pt. 50). The EPA is phasing out and replacing the previous one hour primary ozone standard with a new eight hour standard designed to protect against longer exposure periods. Under the previous standard, an area was required to control certain pollutant emissions if the daily, maximum, one hour averaged ozone concentration exceeded 0.12 parts per million (ppm) more than three times in three years. The new standard requires that the third highest eight hour averaged ozone concentration, averaged over three years, not exceed 0.08 ppm. Id. Even though the new rule will allow four exceedances of the standard before an area is deemed out of compliance and includes an implemen- tation package that gives states time to gear up to meet the new standards, the new rule has been strongly criticized by industry groups and some politicians. See infra note 4. 4. See, e.g., Kenneth W. Chilton & Stephen B. Huebner, Editorial, Ozone 2 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 dard, like its predecessor, was based on an exhaustive review of the scientific literature concerning the effects of ozone on human health. In theory, this review should have determined a threshold concentration, above which there are genuine adverse health effects and below which there are none, to allow the stan- dard to be set. The question of whether such a threshold has been found (or can be found) is the key to understanding the controversy swirling around the new standards. Ozone is the primary constituent of the photochemical smog that has plagued cities since the dawn of the automobile age.5 Produced indirectly by internal combustion engines, power plants and various industrial processes, ozone can be fatal at high lev- els and can cause significant health effects including asthma at- tacks, breathing and respiratory problems, loss of lung function and possible long-term lung damage, and lowered immunity to disease when even trace levels are inhaled.6 The new standard has radical implications for pollution con- trol strategies in the United States. When implemented, it will add some two-hundred-thirty counties, mostly suburban or rural, to the list of 110 counties presently designated as having un- healthful ozone levels.7 In effect, the new standard shifts the focus of ozone control strategies from purely urban efforts to include rural and suburban areas. Because current ozone control efforts have concentrated on emission controls in urban areas, addressing rural non-attainment will necessitate a major shift in the nation's pollution control strategies. Because ozone levels at any given rural location are usually affected by emissions from multiple urban areas as well as from local and distant rural
Health Risks Don't Justify EPA's Stricter Standards, SACRAMENTO BEE, Nov. 29, 1996, at B7; Editorial, Whiter than White, WALL ST. J., Feb. 14, 1997, at A14; Angela Antonelli, Can No One Stop the EPA?, BACKGROUNDER 1129 (July 8, 1997)
II. URBAN POLLUTION Air pollution is not a recent phenomenon; nor is it solely a product of the industrial age. Historically, it is the product of urbanization and the need to burn fuel for heating and cooking. The thousands of homes in a pre-industrial city spewed forth an amazing amount of coal and wood smoke from thousands of cook-
8. The EPA has estimated that the cost of attainment will be between $600 million and $2.5 billion, but other estimates have gone as high as $83 billion. Antonelli, supra note 4, at nn.42-43. 4 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
ing and heating fires.9 With pottery kilns, blacksmiths furnaces and tanneries making contributions, cities were noxious and smoke filled."° As the use of wood declined and coal use in- creased the air became less breathable and posed even more of a threat to health." By the nineteenth and early twentieth centu- ries, coal smoke poisoned the air in almost every city on any day. Occasionally, a climatological condition known as a temperature inversion would occur in the tightly packed cities of Europe or North America and the sulfur dioxide (SO2) and soot particles spewed forth from thousands of chimneys would hang over the cities in a dense, deadly cloud. It was a series of such episodes in the Meuse Valley of Belgium, 12 Donora, Pennsylvania,"2 and London, England 4 that resulted in thousands of deaths and focused attention on air pollution as a medical problem for the first time. The killer fogs of London in the nineteenth and twentieth centuries can be an instructive introduction to the complex inter- actions of climate and pollution that can combine to create a health hazard. Any child who has read Arthur Conan Doyle's tales of Sherlock Holmes or heard stories of Jack the Ripper is familiar with the image of the streets of London swirling with a dense yellow fog. However, this fog was to prove far more dan- gerous than Doyle's fictional villains or the famous "Ripper". For centuries, Londoners used bituminous coal 5 that was high in
9. JEAN GIMPEL, THE MEDIEVAL MACHINE 75-92 (1976) (discussing the envi- ronment and pollution in medieval Europe). 10. Id. 11. Id. at 92-93. 12. In December, 1930, the highly industrialized Meuse Valley experienced climactic conditions permitting the buildup of various pollutants, particularly sulfur dioxide. Over a five day period, approximately 6,000 people became ill and as many as sixty died because of the pollution. W.F. Ashe, Exposures to High Concentrations of Air Pollution Pt. 1: Health Effects of Acute Episodes, in PROCEEDINGS OF THE NA- TIONAL CONFERENCE ON POLLUTION, WASHINGTON D.C., Nov. 18-20, 1958 (U.S. Public Health Service, no. 654). 13. In October, 1948, an acute air pollution incident took place in Donora that was similar to the Meuse Valley incident. Over forty percent of the population became ill with twenty deaths associated with the air pollution. See Bascomb et al., supra note 6, at 7 (citing H.H. Schrenket et al., Air Pollution in Donora, Pennsylva- nia: Epidemiology of Unusual Smog Episode of October 1948, 306 Public Health Bul- letin (1948)). 14. For a fascinating but somewhat sensational description of the London episodes, see WILLIAM WISE, KILLER SMOG: THE WORLD'S WORST AIR POLLUTION DISASTER (1968). 15. Coal is categorized by its heating value (measured in British Thermal 1997] SMOG, SCIENCE & THE EPA sulphur. Preferring individual fires to central heating for resi- dential warmth, millions of chimneys sent coal smoke into an atmosphere already polluted with the smoke from smelters, breweries, gasworks and eventually railroad yards and power plants."6 The result was a city bathed in smoke that suffered from occasional episodes of extreme pollution that became known as "peasoupers". 17 Between 1880 and 1892 at least four such episodes occurred, each killing hundreds of people."i For the most part, victims were the elderly, particularly those with a history of respiratory complaints. 9 These deaths excited little attention since they were viewed as a harvest that shifted the time of death for marginally viable people."0 Even less attention was paid to the incidental problems caused by the pollution, such as the increase in asthmatic and bronchial complaints and the possible overall decline in life expectancy because of the regular exposure to the smoke.2' Periodic parliamentary reports, regal complaints and worried treatises from reformers fell prey to a combination of deference to laissez faire economics and sheer in- ertia that allowed the problem to get steadily worse.22 During the first week of December, 1952, a high-pressure system with calm weather allowed a layer of relatively warm air to form over the English capital, trapping colder air beneath the blanket of warm air.23 Becalmed because of a lack of wind and
Units or BTUs), which is a product of its density. It ranges from the hardest coal anthracite (15,000 BTUs) to bituminous coal (10,500-15,500 BTUs) to subbituminous coal (8,300-11,500 BTUs) to lignite (4,000-8,300 BTUs). CELIA CAMPBELL-MOHN ET AL., ENVIRONMENTAL LAW: FROM RESOURCES TO RECOVERY § 14.1, at 638 (1993). 16. WISE, supra note 14, at 33. 17. Id. at 36-37. 18. Id. at 40. 19. See generally WISE, supra note 14, at 42-50; COMMITTEE ON AIR POLLU- TION, INTERIM REPORT, 1953, cmd. 9011, at 17. 20. See generally WISE, supra note 14, at 32-42. 21. Id. at 163. 22. Royal complaints about air pollution date to at least the year 1257 when Eleanor of Provence, the wife and queen of Edward I (made notorious by the recent movie 'BRAVEHEART") was driven from Nottingham castle by coal pollution rising from the city of Nottingham. GIMPEL, supra note 9, at 82. In 1307, the year of Ed- ward I's death, a royal proclamation was issued forbidding the use of "sea coal" in kilns in certain cities. Id. The first English anti-pollution statute, covering both air and water pollution was enacted by Richard II and Parliament in 1388. Id. at 87. For an interesting discussion of post-medieval reactions to pollution in London, see WISE, supra note 14, at 32-37 & 42-50. 23. WISE, supra note 14, at 15. 6 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
unable to rise because of the blanket of warm air, the soot from the chimneys had no escape route. Because the water in the river Thames was slightly warmer than the cold December air, water vapor rising from the river mingled with the smoke creat- ing a ghastly mixture of soot and fog that covered the city. In- fants and the elderly were the first affected and the first to die but even healthy men and women became ill and in some cases died.24 Over a four day period, London suffered more than four thousand deaths directly attributable to the fog.25 Thousands more became sick and incapacitated. 6 Due to the agitation following the 1952 killer fog, Parliament passed the 1956 Clean Air Act which systematically regulated the use of coal as a home fuel together with other sources of air pollution.27 Instructively, it took a major crisis to obtain regula- tion of air pollution. For decades, perhaps centuries, Londoners had been killed by the pollution. But because they were the old, the very young or the infirm, their deaths were mixed into a general morbidity background and became lost. It is relatively easy to recognize the effects that severe air pollution episodes have on health status in general and on mortality in particular. However these occurrences suggest that episodes of lesser severi- ty or a lesser but general background level of pollution may have important effects on health and mortality. Yet, the London epi- sodes remained a model for what air pollution laws were intend- ed to prevent. At about the same time when belated action was being taken to control pollution from coal smoke, medical investigators were linking a new kind of pollution, photochemical smog, with respi- ratory illnesses in the Los Angeles basin and other urban ar- 2 eas. 1 On September 13, 1955, ozone levels reached a remark-
24. WISE, supra note 14, at 128. More than ninety percent of the deaths at- tributed to the fog were people over the age of forty-five with the majority being over sixty-five. The death rate of infants under one year doubled. Id. at 42. The Committee on Air Pollution report emphasizes deaths of individuals already suffering from chronic respiratory or heart disease, but Wise provides anecdotal evidence of healthy men and women succumbing because of the fog. Id. at 128. 25. WISE, supra note 14, at 163; see also INTERIM REPORT, supra note 19, at 16. 26. WISE, supra note 14, at 27-32. 27. Clean Air Act, 1956, 4 & 5 Eliz. 2, Ch. 52. 28. See H.E. Stokinger, Ozone Toxicology, A Review of Research and Indus- trial Experience: 1954-1964, 10 ARCHIVE ENVTL. HEALTH 719 (1965) (discussing re- 1997] SMOG, SCIENCE & THE EPA able .85 parts per million in downtown Los Angeles.2 9 Los An- geles is particularly susceptible to pollution problems because of its reliance on the automobile combined with its location in a basin, which tends to trap air and has a tendency to suffer from thermal inversions similar to the one that caused the killer fog in London, but, of course, warmer. ° A thermal inversion occurs when a layer of warm air settles over a layer of relatively cooler air that lies near the ground."1 The warmer air acts as a roof, preventing the polluted air from rising and scattering. If the villain in the killer fogs of London was the soft coal that Londoners burned in their homes, its counterpart in the photo- chemical smog found in Los Angeles is the internal combustion engine. During high temperature combustion, oxygen reacts with nitrogen to generate nitric oxide (NO), nitrogen dioxide (NO2) and other nitrogen oxides (NOx). While nitrogen dioxide is a pollutant in its own right with its own risks quite apart from its tendency to produce ozone, its principal pollution threat is as a precursor of ozone. Exposed to sunlight (thus the "photo" in pho- tochemical), NO2 engages in a complicated reaction with hydro- carbons known as "volatile organic compounds" (VOCs) and oxy- gen (0) that produces ozone (0.).2 sults of numerous studies on the biological effects of exposure to ozone). 29. L.A. TIMES, April 28, 1991, at Al, available in 1991 WL 2291871. Typi- cally background ozone levels in the United States during the summer run between 0.03 to 0.05 ppm. OAQPS Staff Paper, supra note 7, at 20. 30. Technically, the London and Los Angeles inversions are of different types. The London type of inversion is caused by the rapid cooling of the earth at night which cools the ground level air while the air immediately above the ground level air is heated by the setting sun and traps the cooler air. A Los Angeles type inversion results from a warmer air mass moving over a cooler air mass. BARBARA FINLAYSON-PITTS & JAMES N. PrrS, ATMOSPHERIC CHEMISTRY: FUNDAMENTALS AND EXPERIMENTAL TECHNIQUES 25-28 (1986). In Los Angeles, inversions are caused by a high-pressure system stalling off the coast of Southern California during the summer and fall. These high pressure systems send warm air into the Los Angeles basin on top of surface air cooled by the ocean. The warm air blankets the cooler air prevent- ing any vertical mixing. Since Los Angeles is a basin with mountains limiting hori- zontal movement, an inversion that limits vertical movement has serious stagnating effects. GEORGE HAGEVIK, DECISION-MAKING IN AIR POLLUTION CONTROL 81 (1970). 31. FINLAYSON-PriTS ET AL., supra note 30, at 25. 32. For a comprehensive description of ozone chemistry in the atmosphere, see I. COLBECK & A.R. MACKENZIE, AIR POLLUTION BY PHOTOCHEMICAL OXIDANTS (1994). Ozone as a ground level pollutant should not be confused with stratospheric ozone and the ozone depletion caused by CFCs. Id. While ozone is stable enough to create a ground level pollution problem, it is too unstable, unlike CFCs, to survive long enough to migrate to the stratosphere. Id. 8 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
III. THE CHEMISTRY OF OZONE PRODUCTION Ozone is not emitted directly into the air by motor vehicles or power plants. Rather, it is formed by a series of chemical reac- tions involving chemicals that are produced by motor vehicles and power plants. All internal combustion engines, power plants and many industrial processes emit nitrogen oxides (NOx)3" and volatile organic compounds (VOCs) into the air. Once in the at- mosphere, they react with other chemicals under the influence of sunlight.34 The lower atmosphere, usually referred to as the tro- posphere, is a vast chemistry lab with hundreds of chemicals being mixed by the wind and rain while being heated and cooled by changing temperatures during the day. Ozone is not just an artificial pollutant produced by modern industrial society; it is produced naturally as well. It is virtually inescapable and a certain background level is commonly pres- ent. 5 Anyone who has sniffed the pungent air after a thunder- storm has smelled ozone. The high temperature produced by a lightning strike converts the abundant nitrogen (N) and oxygen (02) in the air to nitric oxide (NO). 6 The NO, in turn, is con- verted to nitrogen dioxide (NO2) through reactions with oxygen, pre-existing ozone or volatile organic compounds. Drawing ener-
33. The two nitric oxides that are important in ozone formation are nitrogen dioxide (NO2) and nitrogen oxide (NO). Together they are referred to as NOx. 34. It is important to remember that any description of a chemical process in the atmosphere is bound to be oversimplified. Models of chemical reactions drawn from laboratories are useful only as long as one understands that the atmosphere is not a controlled setting-it is a vessel of vast proportions and countless variables. Because trace gases such as NOx are not spread evenly, either spatially or temporal- ly, they do not invariably come into immediate contact with oxidizing agents. Tem- perature, wind velocity and direction, and air pressure all influence atmospheric pro- cesses. COLBECK & MACKENZIE, supra note 32, at 108. 35. The background levels of naturally produced ozone vary widely depending on factors such as the amount and type of vegetation producing ozone precursor emissions, lightening, wildfires and the amount of sunlight available. Calculations of background ozone have to be estimates because of the ubiquitous presence of anthro- pogenic ozone. Measurements conducted in pre-industrial France found 10 to 15 parts per billion. Measurements done today in remote, non-industrial areas find 30 to 40 parts per billion. See generally Barbra J. Finlayson-Pitts et al., Tropospheric Air Pol- lution: Ozone, Airborne Toxics, Polycyclic, Aromatic Hydrocarbons, and Particles, 276 SCI. 1045 (1997) (providing an overview of the chemistry of tropospheric air pollu- tion). 36. M.L. KOWALCzYK & E. BAUER, LIGHTENING AS A SOURCE OF NITROGEN OXIDES IN THE TROPOSPHERE, FEDERAL AVIATION ADMINISTRATION (1982) (FAA-EE-82- 4). 1997] SMOG, SCIENCE & THE EPA
gy from sunlight, the NO2, which is highly reactive, participates with hydrocarbons and oxygen in complex reactions that produce ozone (0').17 In addition to lightning, other natural sources of nitrogen oxides (NOx) that can lead to the formation of ozone include microbes in soil, emissions due to reactions in nitrogen rich soil and wildfires."5 However, the principal sources of nitro- gen oxides in the lower atmosphere come from motor vehicle emissions, power plants and fossil-fuel burning factories. 9 The production of ozone by motor vehicles and industrial sources is not much different from the natural production of ozone through lightning. Just as in the natural production of 4 ° ozone, NO and NO2 are the principal actors. While NO is an important precursor of ozone, it also, oddly enough, destroys ozone.41 During photolysis, the process by which NO2 absorbs energy from sunlight, NO2 splits into NO and oxygen atoms.4 2 The oxygen atoms then combine with 02 to pro- duce ozone. If no other chemical actors come on stage, a photostationary state is reached because the ozone reacts with any NO present, splitting off the third oxygen atom to create 02 and NO2 and the cycle repeats. As long as sunlight is available for the photolysis, and no other chemicals interfere, the cycle continues to repeat." It is a little like a minuet in a Jane Austen novel. Partners begin together, dance an elegant pattern with others, and return to their original partners at the end of the dance. A photostationary state involves much movement and interaction but little change. At night, the cycle ends. The NO continues to react with ozone, destroying the ozone and produc-
37. Id. at 42-45. For a detailed description of the photolytic processes that change NOx to ozone, see COLBECK & MACKENZIE, supra note 32, at 107-109. 38. KOWALCZYK, supra note 36, at S-2; COLBECK & MACKENZIE, supra note 32, at 15-79. 39. COLBECK & MACKENZIE, supra note 32, at 18.
40. While a small amount of NO 2 is emitted directly into the atmosphere by combustion, most of the NO2 that is a precursor to ozone is formed by the oxidation of NO, a product of combustion, after the NO is emitted into the atmosphere and diluted by air. 41. COLBECK & MACKENZIE, supra note 32, at 121. 42. Id. 43. The reaction cycle may be shown this way: NO2 ho ->NO O(3P) O)P 02 M -> 0 M 0%NO -> 02. Id. 10 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
ing NO, but without sunlight and photolysis the NO 2 descends to Earth. Because of the key role sunlight plays in the produc- tion of ozone, levels vary during the course of a day in urban areas. Typically, they rise sharply during the daylight hours, peaking in mid-afternoon, but drop to near zero at night.44 Unfortunately, certain hydrocarbons known as VOCs disrupt the photostationary equilibrium and turn ozone into a major pollution problem. VOCs are produced naturally by vegetation, but human sources such as automobiles,45 industrial processes and the evaporation of various liquid fuels,46 solvents and or- ganic chemicals emit VOCs into the atmosphere as well. Through a complex series of chemical reactions, VOCs are able to react with NO to form NO2 without a net destruction of ozone.47 When VOC levels are high, NO is more likely to react with a VOC molecule than with ozone. The careful symmetry of the ozone minuet is disrupted and ozone begins to build up. Without the limiting effect of NO, ozone levels increase signifi- cantly. The extent to which VOC will disrupt the photostationary state and allow the ozone to increase depends on the VOC/NOx ratio. The more VOCs relative to NOx, the less NO will be avail- able to destroy ozone. Because of the complex chemistry of VOCs and NOx, the ques- tion of controlling ozone production through the regulation of VOCs or NOx has been a center of controversy for almost three decades.48 The initial strategy for controlling photochemical
44. W.L. Chameides et al., Ozone Pollution in the Rural United States and the New NAAQS, 276 Sci. 916 (1997). 45. During normal combustion in an automobile, not all of the fuel is con- sumed. The unburned carbon compounds that are emitted in the exhaust are VOCs. J.G. Calvert et al., Achieving Acceptable Air Quality: Some Reflections on Controlling Vehicle Emissions, 261 SCI. 37, at 38 (1993). 46. Calvert, supra note 45, at 38. As the fuel tank of a parked vehicle cools down at night and heats up during the day it "breathes" gasoline vapors into the air. Id. Vapors also escape while refueling and while the vehicle is running. Id. 47. VOCs vary widely as to reactivity. For example, methane is not very reactive and has little effect on ozone formation, while isoprene is very reactive and may contribute a great deal to ozone formation. FINALYSON-PrrTS ET AL., supra note 30, at 973-993. 48. See, e.g., Paul J. Miller, Cutting Through the Smog: The 1990 Clean Air Act Amendments and a New Direction Towards Reducing Ozone Pollution, 12 STAN. ENVTL. L.J. 124, 125-26 (1993); NATIONAL RESEARCH COUNCIL, RETHINKING THE OZONE PROBLEM IN URBAN AND REGIONAL AIR POLLUTION 351-77 (1992). 1997] SMOG, SCIENCE & THE EPA smog focused on reducing VOC emissions.49 Unfortunately, de- spite its appeal, a strategy based exclusively on VOCs cannot effectively control ozone. First, it turned out to be very difficult to determine the amount of VOCs and other pollutants emitted into the air. Cal- culating the amount of a particular pollutant in the air requires the creation of a very complicated model.5" For example, to cal- culate the VOCs emitted into the atmosphere in a given geo- graphical area, amounts contributed by vehicles, stationary sources and natural sources must be estimated. To calculate the total emissions for all vehicles, one must consider the age and distribution of the vehicles, the number of miles per year that vehicles of different ages are driven, the emissions from cars of a given age, the rate of deterioration of emission controls, the ef- fects of tampering with catalytic converters, average tempera- tures, average driving speeds and driving patterns.5' In addi- tion, one must not only include stationary sources such as large powerplants, but also innumerable smaller sources such as dry cleaners, auto body shops, restaurants, home furnaces, lawn mowers, landfills and even outdoor barbecues.52 Further compli- cating VOC models is the unfortunate fact that different com- pounds have different ozone generating ability depending on the structure of the organic compound.53 As one might expect, given the complexity of the task, VOC models were not particularly accurate. In fact, the models that were used appear to have seriously understated the amount of VOCs emitted into the atmosphere. Studies conducted in Califor- nia, Maryland and Pennsylvania suggest that the models under- stated VOC concentrations by anywhere from one-third to three- fourths.54 Because of this inaccurate estimate, the control strat- egies overestimated the effectiveness of VOC strategies and were ineffective.
49. Miller, supra note 48, at 126. 50. See generally John H. Seinfeld, Ozone Air Quality Models: A Critical Review, 38 J. AIR POLLUTION CONTROL ASS'N 616 (1988) (highlighting advances and continuing problem areas in photochemical air quality modeling). 51. Calvert, supra note 45, at 38-39. 52. Id. 53. Finlayson-Pitts et al., supra note 35, at 1047. 54. Calvert, supra note 45, at 38. 55. Miller, supra note 48, at 134. 12 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Second, VOC strategies are particularly ineffective in rural areas due to natural VOC emissions. A successful ozone control strategy depends on the NOx/VOC ratio. Unfortunately, urban and rural NOx/VOC ratios differ markedly. As air masses move downwind from urban centers, the NOx/VOC ratios change.5" In an urban area, both VOCs and NOx are produced by combustion in automobiles and power plants. As the air mass drifts away from typically urban sources of pollution, NOx rates usually de- cline but VOC rates do not decline as much because emissions from natural sources increase as the air mass moves into rural areas.57 At the same time NOx, which has a larger deposition velocity than VOCs, is removed from the air mass more rapidly than VOCs.5 Decreasing NO in an urban, high NOx/VOC ratio region, can actually result in an increase in ozone.59 In such areas, control- ling VOCs may be the most effective strategy. On the other hand, in a rural, high VOC/NOx region, the creation of ozone is limited by the °amount of NO available to be oxidized to NO2 and subsequently photolyzed into ozone. Because such areas usually have high levels of naturally produced VOCs, the most effective strategy is to control NOx. As noted earlier, the new EPA standard for ozone will expand the number of counties out of compliance to include suburban and rural counties.6 ° As a result, complex regional plans will have to take into account a range of VOC/NOx ratios involving VOC controls in urban areas, NOx controls in rural areas and specific mixes in suburban areas. In effect, the new standards will mandate a new, regional based approach to ozone.
IV. THE NAAQS REVIEW PROCESS The Clean Air Act directs the EPA to identify and set National Ambient Air Quality Standards ("NAAQS") for air pollutants that cause adverse effects to public health and the environ- ment.6 These numerical standards represent the highest con-
56. Finlayson-Pitts et al., supra note 35, at 1047. 57. Id. 58. Id. 59. Id. 60. See supra note 7 and accompanying text. 61. 42 U.S.C. § 7408 (1997). 1997] SMOG, SCIENCE & THE EPA centrations of certain air born pollutants that are consistent with public health and welfare.62 In setting a primary NAAQS, the EPA may base its decision only on the pollutants' effects on hu- man health and may not consider the cost or feasibility of at- taining the standards. 3 Once established, a NAAQS must be reassessed every five years. 4 Once the EPA promulgates a NAAQS, each state is required to prepare a "state implementa- tion plan" ("SIP") to ensure timely attainment of the NAAQS.65 The SIPs are then submitted to the EPA for approval and once approved cannot be modified or repealed without EPA's approv- 66 al. The agency has established standards for six ubiquitous air pollutants: ground-level ozone, particulate matter, carbon monox- ide, lead, sulfur dioxide and nitrogen dioxide.67 These pollutants are sometimes referred to as "criteria pollutants" because the EPA must prepare an elaborate scientific paper known as a Cri- teria Document before the NAAQS is established.68 To a certain extent, the science contained in the Criteria Document frames the entire debate over a NAAQS. To assist the EPA in reviewing NAAQSs, the 1977 amend- ments created a new committee, the Clean Air Scientific Adviso- ry Committee ("CASAC"), to provide an independent voice on
62. There are two types of NAAQS: primary and secondary. A primary NAAQS is a maximum allowable concentration, "the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria and allowing an adequate margin of safety [is] requisite to protect the public health." 42 U.S.C. § 7409(b)(1). Secondary NAAQS are designed to address effects on public welfare including effects on soil, water, crops, wildlife, climate and visibility. 42 U.S.C. § 7602(h). In practice, secondary NAAQS are relativley unimportant. Sulfur dioxide is the only pollutant that has a secondary NAAQS stricter than its primary NAAQS. Compare 40 C.F.R. § 50.4 (primary standard for sulfur dioxide) with 40 C.F.R. § 50.5 (secondary standard for sulfur dioxide). 63. See, e.g., Natural Resources Defense Council v. EPA, 902 F.2d 962, 972 (D.C. Cir. 1990); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1186 (D.C. Cir. 1981), cert. denied, 445 U.S. 1034 (1982); Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert. denied, 442 U.S. 1042 (1980). 64. 42 U.S.C. § 7409(d) (1997). 65. 42 U.S.C. § 7410 (1997). 66. Id. 67. 40 C.F.R. §§ 50.4-.12 (1997). 68. An air quality criteria document is a comprehensive survey of all "the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air." 42 U.S.C. § 7408(a)(2) (1997). 14 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 scientific and technical aspects of the reviews.69 CASAC is one of ten standing committees of the EPA's Science Advisory Board ("SAB").7 ° CASAC is a prime actor in the process of establishing the new ozone NAAQS, and to understand the controversy about the new standards it is necessary to examine its role in detail. CASAC consists of seven members appointed by the EPA Ad- ministrator.71 The members must include one member of the National Academy of Sciences, one physician, and one person representing state air pollution control agencies.72 A CASAC panel is then constituted to conduct the ozone review. The panel consists of the seven regular members plus additional experts in health, economics, plant biology, and atmospheric chemistry.7" The first step in reviewing a NAAQS is the preparation by the EPA of the Criteria Document summarizing the relevant scientif- ic and medical studies of a pollutant.74 Reviewing all of the sci- entific and medical literature on ozone is a complex and daunt- ing undertaking. The first ozone criteria document published in 1970 summarized the relevant science in 200 pages. 7 The cur- rent document, begun in 1993 and completed in late 1995, is a three volume set containing over 1,500 pages.76 The Criteria Document is subject to review and criticism by CASAC while still in draft form. In effect, drafting the criteria document is an interactive process between CASAC and the EPA Office of Re- search and Development. After a number of drafts and com- ments, a final Criteria Document is published and CASAC re- leases a closure report on the criteria document.77 In the normal
69. 42 U.S.C. § 7409(d)(2) (1997). 70. See Standard Operating Procedures for the U.S. Environmental Protection Agency's Science Advisory Board, 52 Fed. Reg. 46,834 (1987). 71. 42 U.S.C. § 7409(d)(2). 72. Id. 73. George T. Wolff, The Scientific Basis for a New Ozone Standard, ENVTL. MGMT., Sept. 1996 at 27. 74. See supra note 68 and accompanying text. 75. NATIONAL AIR POLLUTION CONTROL ADMIN., U.S. DEPT. OF HEALTH, EDUC., AND WELFARE, AIR QUALITY CRITERIA FOR PHOTOCHEMICAL OXIDANTS (1970). 76. OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S. EPA, REVIEW OF NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE AND RELATED PHOTOCHEMI- CAL OXIDANTS (1995). 77. Letter from Dr. George T. Wolff, Chair, Clean Air Scientific Advisory Comittee, U.S.- EPA, to Carol M. Browner, Administrator, U.S. EPA (Nov. 28, 1995), regarding CASAC closure on the Air Quality Criteria for Ozone and Related Photo- chemical Oxidants; OAQPS Staff Paper, supra note 7, app. G at 451. 19971 SMOG, SCIENCE & THE EPA course of events, the EPA would then produce a Staff Paper that contains the Agency's recommendations for the NAAQS, along with justifications for the recommendations that are drawn from material contained in the criteria document. CASAC would then review the Staff Paper. Because the Staff Paper is a policy docu- ment based on the science contained in the criteria document, it is contemplated that the CASAC review of the criteria document be completed prior to the drafting of the Staff Paper. In the case of the ozone standard, the review process of the ozone NAAQS was placed on an accelerated schedule because of a lawsuit filed by the American Lung Association.7" As a result of the lawsuit, the Staff Paper was drafted simultaneously with parts of the Criteria Document rather than after the Criteria Document was subjected to comments and completed.79 Similarly, CASAC's review of the Staff Paper overlapped its review of the Criteria Document. °
78. In 1991, the American Lung Association filed suit in the United States District Court for the Eastern District of New York against the EPA to compel the EPA to complete its review of the ozone NAAQS. See American Lung Ass'n v. Reilly, 141 F.R.D. 19 (E.D.N.Y.), affd, 962 F.2d 258 (2d Cir. 1992). The court subsequently issued an order requiring the EPA to issue a proposed decision by August 1, 1992 and a final decision by March 1, 1993. In response to this order, the EPA retained the existing one hour standard of 0.12 ppm but noted that since there were many potentially important new studies, they would complete the next review of the ozone standard as quickly as possible. The American Lung Association entered into an agreement with the EPA to suspend any further litigation over the standard while the new review was conducted. See Wolff, supra note 73, at 28-29. 79. Wolff, supra note 73, at 29. 80. Id. 16 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Ozone NAAQS Review & Publication Process
CASAC review of the Criteria Document June 1994 to September 1995
CASAC closure on Criteria Document November 28, 1995 CASAC review of Staff Paper February 1995 to September 1995
CASAC closure on Staff Paper November 30, 1995
EPA publishes proposed NAAQS November 29, 1996
EPA promulgates final NAAQS July 18, 1997
The more than three hundred health studies reviewed for the new NAAQS can be broken down into four classifications: animal studies,81 controlled human exposure studies,82 field studies of ambient exposures, 3 and epidemiological studies of hospital admission.84 These, in turn, can be broken down into studies of acute and chronic health effects. Acute health effects of ozone are
81. The main use of animal studies was to gain insight into the mechanisms by which ozone produces biological responses and damage to the respiratory system. See Bascom et al., supra note 6, at 13-27. 82. In these controlled studies, individuals were exposed to ozone concentra- tions of various levels for a number of hours while engaged in light to heavy exer- cise on a treadmill or stationary bicycle. Before, during and after the exposure, lung functions were monitored and symptoms, such as coughing or shortness of breath were noted. Studies conducted in the early eighties indicated a clear relation between decreased lung functions and increased ozone levels depending on the intensity of the physical exertion by the subjects. Bascom et al., supra note 6, at 16-17. 83. The field studies consisted of summer camp and adult exercise studies. In the summer camp studies, children engaged in normal recreational activities and then participated in lung function tests and their results were compared to ambient ozone concentrations. In adult exercise studies, lung function tests were administered to runners before and after they ran outdoors and the test results were compared to ambient ozone concentrations. Both types of studies indicated a significant relation- ship between decreased performance on the lung function tests and increased ozone concentrations. Bascom et al., supra note 6, at 18-19. 84. The hospital admission studies examined the relationship between daily ozone concentrations and daily hospital admissions for respiratory causes. These stud- ies have consistently shown an apparent linear relationship between ozone and ad- missions. Bascom et al., supra note 6, at 19-20. 1997] SMOG, SCIENCE & THE EPA those produced by short-term and prolonged exposure to ozone.8" Chronic health effects are those effects induced by long- term exposure that is either intermittent or continuous. Field studies, human control studies and even hospital admission studies are limited to acute effects. The only source of informa- tion on chronic effects of ozone come from animal studies and are inconclusive.86 The studies of acute effects found that most healthy adults exposed to ozone levels while exercising experience shortness of breath, coughing and painful breathing. Typically, such symp- toms last a few hours. The more physically active people are when working outside during high ozone levels, the more likely they are to experience symptoms. The real health concern is not for the average adult but for groups of people especially vulnera- ble to ozone effects such as asthmatics, children and outdoor workers. However, CASAC noted that the differences in the percentage of children playing outdoors responding to ozone levels under the 0.12 ppm standard and the new standard were too small to be significant. Similarly, the EPA Staff Paper esti- mated that ozone asthma attacks prevented by the tightest stan- dard considered by the EPA would cut asthma admissions to
85. A review of controlled human exposure studies over the last fifteen years reveals three types of respiratory response to acute ozone exposure: irritative cough and chest pain on inspiration; reduced ability to take a deep breath; and inflamation of the airways. Thomas J. Kule et al., Ozone Response Relationships in Healthy Non- smokers, 132 AM. REV. OF RESPIRATORY DISEASE 36 (1985) (finding cough, nose and throat irritation and chest discomfort); W.F. McDonnell et al., Pulmonary Effects of Ozone Exposure During Exercise: Dose Response Characteristics, 54 J. OF APPLIED PHYSIOLOGY 1345 (1983) (observing increased coughing in test subjects). The effects of prolonged ozone exposure in humans have been addressed primarily in epidemiologi- cal studies. Bascom et al., supra note 6, at 26. The findings from this type of study are often inconclusive because of the lack of precise information on exposure and the difficulty of controlling confounding factors. Id. However, UCLA sponsored a series of studies on respiratory diseases that employed strategies to limit such potential bias- es. Id. Children and adults living in two communities in the Los Angeles area with divergent air quality were evaluated at two points in time, five years apart. Id. The study found significant deterioration of lung function associated with ozone exposure. Id. Unfortunately, these studies are not particularly helpful in setting a standard since they couldn't identify a threshold level of ozone exposure that was not un- healthy. 86. Animal studies of chronic exposure to ozone have shown permanent dam- age to the respiratory tract and the possibility of reduced resistance to disease. See Bascom et al., supra note 6, at 25. 18 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 hospitals in the New York City area by only about 0.5%." After reviewing the medical literature, it was the consensus of the CASAC Panel that an eight hour standard was more appro- priate for a human health based standard than a one hour stan- dard." However, the Panel felt that the weight of the health effects evidence failed to indicate a threshold concentration for the onset of biological responses due to exposure to ozone above background concentrations.'9 Because the information available suggests that ozone may elicit a continuum of biological respons- es down to background levels, there was no level that did not necessarily imply a biological effect.9" Even though the panel could not find a "bright line" for select- ing a standard, some members did express a "personal prefer- ence."'" Three members of CASAC recommended the 0.08 ppm standard, three other members recommended- 0.09 ppm and one member recommended a range of 0.09 to 0.10 ppm.92 Two other members, including the chair, thought it was a policy decision because science had not shown that any of the alternatives con- sidered are more protective of public health than any other.93 Because no CASAC panel member advocated a standard of 0.08 ppm or below, the EPA focused on 0.08 to 0.09 ppm, and selected 0.08 ppm after engaging in a multi-step risk assessment. The assessment focused, in part, on "the importance of increased protection for those sensitive individuals who may experience respiratory symptomatic and functional effects at lower 03 con- centrations than the population as a whole; and the uncertainty surrounding chronic effects."'94 This is not the first time the EPA has had a difficult time
87. OAQPS Staff Paper, supra note 7, at 122-29. 88. Letter from Dr. George T. Wolff, Chair, Clean Air Scientific Advisory Committee, U.S. EPA, to Carol M. Browner, Administrator, U.S. EPA (Nov. 30, 1995), regarding CASAC Closure on the Primary Standard Portion of the Staff Paper for Ozone; OAQPS Staff Paper, supra note 7, app. G at 453. 89. OAQPS Staff Paper, supra note 7, app. G at 454. 90. In CASAC's closure letter, Dr. Wolff indicated that "the panel concluded that there is no 'bright line' which distinguishes any of the proposed standards (ei- ther the level or the number of allowable exceedences) as being significantly more protective of public health." OAQPS Staff Paper, supra note 7, app. G at 455. 91. Id. 92. Id. 93. Id. 94. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38,856, 38,865 (1997). 1997] SMOG, SCIENCE & THE EPA finding the appropriate standard for ozone. According to one scholar, when the 0.12 ppm ozone NAAQS was established in 19789' the scientific evidence would have supported a standard anywhere between 0.08 ppm and 0.25 ppm.96 In his view, the EPA's decision to set the standard at 0.12 ppm must be under- stood within the context of political pressure, economic consider- ations and fear of lawsuits. Pressures for a relaxed standard included the possibility of legal action and concerns by econo- mists about the economic consequences of a strict standard.97 The controversy split the EPA into two camps: the "strict con- structionists," who argued that the standard would be set on the basis of health risks alone, and those favoring a more flexible construction.98 In the end, the agency opted for a moderate strategy that would allow it to ignore rural areas and direct its enforcement efforts toward urban pollution.9 Because the CASAC review mechanism was not yet officially in place for the 1978 review, the "Science Advisory Board created a Subcommittee on Scientific Criteria for Photochemical Oxi- dants."1" Relations between the subcommittee and the EPA were bedeviled about disputes as to the timing and scope of the subcommittee's review as well as the methodology of studies the EPA was relying upon. 1' Professor Jassanoff, probably the leading expert on the relationship between science and policymaking in the United States, observed about this dispute: With no previously shared understandings about what constitutes an 'adverse health effect' of ozone-let alone how to measure such effects-the agency and its advisers naturally fell to arguing over particular features of experimental design, such as the selection of
95. The NAAQS set in 1971 was set at an hourly average of 0.08 ppm for total photochemical oxidants not to be exceeded more than one hour a year. See National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8,186 (1971) (recodified at 40 C.F.R. pt. 410). When the NAAQS was revised in 1978 to 0.12 ppm, the chemical designation was changed from total photochemical oxidants to ozone. 44 Fed. Reg. 8,202 (1979). 96. R. SHEP MELNICK, REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT 281-298 (1983) (discussing legal, political and economic forces behind EPA's revision of its ozone standard). 97. Id. at 289. 98. Id. 99. Id. at 289-90. 100. SHEILA JAANOFF, THE FIFTH BRANCH: SCIENCE ADVISORS AS POLICYMAKERS 106 (1990). 101. Id. at 106-09. 20 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
subjects. Any attempt to resolve the debate was complicated by the fact that it was embedded in a political context that permitted disputes over evidence to be redefined as disputes over turf and territory.0 2 CASAC's concern that no threshold concentration could be scientifically determined for guidance in setting the standard is not a minor technical quibble but, instead, raises serious ques- tions about a presumption that underlies the entire regulatory structure of the Clean Air Act. Underlying this dispute is the unfortunate fact that the Clean Air Act does not clearly articu- late what constitutes adverse health effects. Does it include symptoms that are arguably subjective like chest pain and symp- toms difficult to measure like coughing and congestion? Or, is it limited to serious, physiological damage such as respiratory lesions? Second, without a clear understanding of what consti- tutes an adverse health effect the science cannot provide any guidance. It is unfortunate that the more serious the symptoms, the easier it is for scientific studies to provide the "bright lines" CASAC so desperately desired.
V. SCIENCE, THRESHOLDS AND OZONE It may be helpful to pause and assess the situation in which the EPA found itself during the ozone reassessment. First, the EPA had a legislative mandate to set the ozone standard at a level necessary to protect human health.' Second, the statute required the EPA to rely on scientific evidence in establishing the standard." 4 Third, CASAC, the EPA's independent science advisory committee, concluded that there may not be a threshold level of concentration below which ozone is not a threat to hu- man health.0 5 Finally, the agency was under pressure to move quickly due to litigation.' In effect, the statute mandated a result that its own procedures made impossible while the agency was under pressure for a new NAAQS and hostile scrutiny. Faced with this quandary, the agency muddled through and established a standard based on its best judgment but hid be-
102. Id. at 108. 103. See supra notes 61-63 and accompanying text. 104. Id. 105. See supra notes 89-90 and accompanying text. 106. See supra notes 96-97 and accompanying text. 1997] SMOG, SCIENCE & THE EPA hind what Professor Wendy Wagner has called the "science cha- rade. ,0 7 Science, as Professor Wagner and others have pointed out, "has been the thorn in the side of environmental policy-makers since the dawn of environmental law."' 5 It is impossible to imagine environmental regulation without a solid scientific foun- dation, but there is a basic conflict between the quantitative rigor of science and the qualitative and flexible nature of policy making. Congress has been regularly drawn to the vision of sci- ence eliminating the gray areas of policy making and hard choic- es by providing clear, irrefutable support for regulations. Unfor- tunately, science and policy-making have not meshed well. As Professor Peter Schuck has pointed out, C.P. Snow's famous concern for "two cultures" and the conflict between science and literature was misplaced: "Science's clashes with two other cul- tures, law and politics, seem far more consequential ....""' It would be difficult to argue that science is not important in regulating pollution and I do not intend to do that. Science pro- vides the most accurate information by which we can assess risk. When regulations err on the side of strictness because of un- founded or exaggerated fears, there are undoubted social and economic costs. Similarly, when regulations are too lax, there are health costs as well as social and economic costs. There are two possible, but mutually exclusive, explanations for why the mate- rial reviewed by the EPA and CASAC could not find a threshold level at which the standard could be set. First, regulatory sci- ence, because of its structure, is limited in its precision and, when operating at its best, could only give guidance as precise as is demanded by the Clean Air Act. In contrast, the second posi-
107. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REv. 1613 (1995). Of course, there is support that the new air quality standards are based on sound science. See EPA's Rulemaking on National Ambient Air Quality Standard for ParticulateMatter and Ozone: Hearings Before the Subcom- mittee on Commercial and Administrative Law of the House Committee on the Judi- ciary, 105th Cong., July 29, 1997 (testimony of Dr. George D. Thurston, Assoc. Pro- fessor of Environmental Medicine, N.Y.U. School of Medicine), available in WESTLAW USTESTIMONY database, 1997 WL 454450 (F.D.C.H.). However, CASAC's lukewarm, at best, support for the standards indicates the problems in describing the standards as scientifically based. 108. Wagner, supra note 107, at 1614. 109. Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 YALE L. & POL. REV. 1, 12 (1993). 22 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 tion is that the science has been precise, but ozone is harmful to human health at any measurable level and there is no point at which a standard may be more rationally set than another.
VI. THE LIMITATIONS OF REGULATORY SCIENCE The scientific study or published scientific article that provides the scientific information that is the basis for pollution regula- tion is the product of three hundred years of evolution within a 11 ° unique social institution - the science journal. The role of the science journal within the institution of science is a complex melange of competing goals. First and foremost, science journals are the accepted mechanism for communicating results to fellow scientists in the communal effort of advancing scientific knowl- edge. Secondly, journals are the primary vehicle for establishing priority of discovery for individual scientists or groups of scien- tists which is the primary way for scientists to raise their status and prestige. Finally, journals provide a mechanism to screen out crackpot information, weak science and sometimes, unfortu- nately, novel science. Because science has evolved a method where individuals and small groups publish articles on discrete issues, there have developed thousands of specialized science journals. Because scientific knowledge is advanced through com- petition for status and prestige as much as cooperation, there is no single voice of science. Instead there are a multitude of arti- cles describing results of narrow experiments or studies. Despite Congress' occasional efforts to invest the National Academy of Sciences with such a role, there is no final authority equivalent to the French Academy's role in French language and culture or the Pope's role in the Roman Catholic Church. Science is decid- edly protestant in its structure. Without a single, authoritative voice for policy makers to follow, regulation making inevitably drifts into gray areas where hard decisions must be made with- out any scientific certainty."1
110. See generally Robert Merton, Institutionalized Patterns of Evaluation in Science, in THE SOCIOLOGY OF SCIENCE 460-96 (1973) (examining the referee system in scientific and scholarly journal publishing). 111. In fact, from the existence of CASAC and the role Congress created for it in the reassessment process, we can infer a hunger for a single voice of scientific knowledge. It is then with sweet irony that CASAC could not come up with a recom- mended standard and could only provide the personal preferences of individual mem- bers of the committee. 1997] SMOG, SCIENCE & THE EPA
In addition to being faced with a multitude of scientific re- search and writing on discrete but related topics, the EPA must also contend with the limitations of the type of science that can be conducted about human health. The EPA had three types of studies to rely upon: animal studies, epidemiological studies, and human lab and field studies."' Each of these has important limitations. In an ideal animal study, there are multiple groups, with as many as fifty animals each, that are studied. One group is a control group not exposed to ozone at all, while each of the other groups are exposed at different levels for different lengths of time. The animals are exposed to far more ozone than most hu- mans would ever be exposed to in order to mimic prolonged or chronic exposure to humans."' These studies have their short- comings. Estimating risks for humans based on animal studies requires a number of inferences."1 Intense but short term ex- posure to ozone may be very different from long-term exposure. Animals may have a very different response to ozone than hu- mans. These inferential gaps may be bridged by mathematical models, but uncertainties remain."' Similar uncertainties plague epidemiological studies. The most important epidemiological studies in the ozone reassessment were the hospital admission studies. These studies, like all epi- demiological studies require the jump from association to causa- tion. Confounding factors, like other pollutants and lack of con- trols, make such studies extremely difficult."' This is a prob- lem that has plagued epidemiology from the beginning of this young science.1 ' Indeed, one noted epidemiologist has argued that causal inference in epidemiology is part of policy making and is not scientific."18
112. See supra notes 81-84 and accompanying text. 113. Bascom et al., supra note 6, at 13. 114. Id. 115. See Carl F. Cranor, REGULATING TOXIC SUBSTANCES 17-25 (1993). 116. One striking example of confounding factors and the difficulty in control- ling them can be found in a recent study associating the frequency of asthma among inner city children with exposure to cockroaches. Another factor to be considered in interpreting the New York hospital admissions study discussed is the OAQPS Staff Paper. See David Rosestrich et al., The Role of Cockroach Allergy and Exposure to Cockroach Allergen in Causing Morbidity Among Inner City Children with Asthma, 336 NEW ENG. J. MED. 1356 (1997). 117. See Kenneth J. Rothman, MODERN EPIDEMIOLOGY 16-21 (1986). 118. S. Lanes, Causal Inference Is Not a Matter of Science, 122 AM. J. OF 24 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
The final type of study is the field and laboratory studies of humans. While these studies are scientifically very rigorous, they give the least assistance to policy makers because they are limit- ed to acute responses in healthy individuals."' In addition, these studies showed the smallest effects of ozone on health. Thus, the argument would go that because of the inherent limitations of these types of studies, policy makers are only given very vague guidance. It is obvious that ozone is a health risk. It is similarly obvious that the greater the concentration of ozone the greater the health risk. Yet, it appears that there is no threshold because of the imprecise studies. VII. THERE IS NO OZONE THRESHOLD Even without a single authoritative voice and the use of such imprecise measures, it would seem that reasonable, educated people could read through the three hundred plus science articles that deal with the health effects of ozone and come to a conclu- sion and recommend a standard. That would be so unless no such standard were possible. In fact, this is what one commenta- tor has argued for years. In a very thoughtful article about air quality standards written in 1994, Professor Joseph Feller fore- saw the EPA's dilemma about air quality standards."0 Profes- sor Feller, who has the advantage of having been both a success- ful scientist12' and an attorney, pointed out that the premise underlying the Clean Air Act was that there existed thresholds beneath which a pollutant is not a threat to health or welfare, although no such threshold exists for many pollutants.122 Ac- cording to Professor Feller, "Apparent thresholds sometimes reflect nothing more than the limits of experimental or epidemio- logical methods in detecting minor or infrequent effects. As sci- entific methods improve, apparent thresholds fall."'23
EPIDEMIOLOGY 550 (1985) (abstract from a symposium on the philosophic basis for epidemioligic inference). 119. Bascom et al., supra note 6, at 14. 120. Joseph M. Feller, Non-Threshold Pollutants and Air Quality Standards, 24 ENVTL. L. 821 (1994). 121. Professor Feller received his Ph.D. in Physics from Harvard University and was an Assistant Professor of Physics at Columbia University before studying law and practicing with the EPA. 122. Feller, supra note 120, at 823-24. 123. Id. at 824-25. 1997] SMOG, SCIENCE & THE EPA
The obvious issue raised by the weakness of the measured health effects of ozone and the inability to find a threshold for health effects is whether the EPA should have conducted a cost/benefit analysis. As indicated earlier, courts have uniformly supported the EPA in its interpretation of the Clean Air Act as precluding consideration of economic costs or technical feasibility in setting a NAAQS.' 4 However, one commenter to the pro- posed regulation raised a particularly interesting argument that was nevertheless rejected by the EPA.'25 While conceding that the Clean Air Act normally precludes consideration of economic costs, the commenter argued that this was so only when the scientific basis for an NAAQS is "clear and compelling" or "un- ambiguous."'26 Because of the ambiguous nature of the scientif- ic evidence in setting the ozone standard some cost/benefit analy- sis should have been conducted. While the EPA rejected this argument, cost/benefit arguments have been continuously raised by opponents to the ozone standard."' Using the EPA's own figures, the annual costs of partial attainment would be $600 million to $2.5 billion.' 8 This would be compared to annual benefits ranging from $100 million to $1.5 billion.'" Such a dis- parity of costs when compared to benefits would normally be compelling, but cost/benefit analysis is no more precise than the regulatory science discussed earlier. The option of using cost/benefit analysis in an environmental context is not new and has been met with severe criticism on ethical grounds by a number of environmental advocates." ° However, in addition to possible ethical problems, cost/benefit analysis has some very practical difficulties and potential ambi-
124. See cases cited supra note 63. 125. 62 Fed. Reg. 38,856, 38,880 (1997). 126. Id. 127. See, e.g., Antonelli, supra note 4. 128. Proposed Ozone and Particulate Matter NAAQS Revisions: Hearings Be- fore the Subcommittees on Health and Environment and Oversight and Investigation of the House Committee on Commerce, 105th Cong. (visited Apr. 17, 1997)
VIII. CONCLUSION The new ozone standard amounts to an almost paradigmatic change in our approach to air pollution. It shifts emphasis from an urban focus to include rural and suburban areas. By adding 230 counties to areas that will be deemed as having unhealthy ozone levels, the new standard will subject roughly half the pop- ulation of the United States to ozone control regulations. Fur- ther, it does all of this in order to prevent relatively minor incon- venience to the heathy and to provide marginal additional protections to groups at risk. In the forty-five years since the killer fogs in London, air pollution concerns have moved from controlling episodes of mass death in cities because of industrial soot to protecting healthy individuals from uncomfortable conges- tion and chest pain and a small number of asthmatics from seri- ous harm. It is a big shift to be made on ambiguous scientific grounds. In the rush of position papers, editorials and political speeches responding to the new ozone NAAQS, the Heritage Foundation
131. In her testimony before Congress, Assistant Administrator Mary Nichols gave the example that: during the 1990 debates on the Clean Air Act's acid rain program, indus- try initially projected the costs of an emission allowance (the authoriza- tion to emit one ton of sulfur dioxide) to be approximately $1,500, while EPA projected those same costs to be $450 to $600. Today those allow- ances are selling for approximately $100. Nichol's Testimony, supra note 128. 1997] SMOG, SCIENCE & THE EPA issued a paper entitled "Can No One Stop the EPA?"' 32 The pa- per, surprising no one who is familiar with the Foundation, was extremely critical of the new standard. While the paper was too shrill and polemical to be helpful in understanding the issue, it raises, perhaps unintentionally, an interesting question. If, as CASAC's closure letter implies, the Clean Air Act's health-cen- tered mandate to the EPA is unworkable, 3 who does control the EPA when it sets a NAAQS? The intent of the Clean Air Act in this regard seems clear. Scientific knowledge should drive the regulatory process and CASAC was chartered to make sure of this. To the extent that the regulatory process is seen merely as a scientific enterprise, public input is irrelevant. But, if the science behind the process is suspect or ambiguous, the risk assessment decisions must be made in a public way with a full and open discussion of all ramifications. Decisions as costly and important as the ozone standard should not hide behind a charade of sci- ence but should be part of the public debate.' Cost/benefit analysis cannot repair this. It has its own ambiguities that could be u'ed to hide policy making. For a regulatory decision to have legitimacy in a democracy, and thus have the support of citizen- ry, public input must be allowed where science does not have a clear answer. Where science cannot provide the answer, new procedures must be found to make changes as major as the new ozone standards.
132. Antonelli, supra note 4. 133. See id. 134. Professor Wagner makes this point in more detail in her article. Wagner, supra note 107, at 1674-77.
OVERVIEW OF BROWNFIELD REDEVELOPMENT INITIATIVES: A RENAISSANCE IN THE TRADITIONAL COMMAND AND CONTROL APPROACH TO ENVIRONMENTAL PROTECTION
by Philip J. Schworer'
I. INTRODUCTION As we move toward the new millennium, the mantra of "re- claim, reuse, and recycle" will continue to be heard in the context of environmental protection. This attitude will be especially prev- alent in the area of land use. The popular press is replete with stories of former industrial property revitalization efforts, often called "Brownfield redevelopment,"2 being greeted with great enthusiasm by all.3 Further, in no other environmental regulato- ry area has the traditional concept of "command and control" been abandoned in favor of a cooperative partnership among the stakeholders: regulator, regulatee and community/public.4
1. Philip J. Schworer is a partner in the law firm of Dinsmore & Shohl with offices in Northern Kentucky; Louisville and Lexington, Kentucky; and Cincinnati, Columbus, Dayton and Hamilton, Ohio. Mr. Schworer is a graduate of the University of Cincinnati (B.S. 1977, M.S. 1980) and Salmon P. Chase College of Law (J.D. 1986). The author acknowledges the invaluable editorial and research contribution from Steve N. Siegel who practices law with the Dinsmore & Shohl Environmental Practice Group. 2. In addition to 'Brownfield redevelopment," recycling of land is known as a "voluntary cleanup of contaminated property" in Ohio. OHIO REV. CODE ANN. § 3746 (Banks-Baldwin 1997). 3. See Mike Brown, Local Issues-FDA to Get $34 Million to Curb Teen Smok- ing, THE COURIER-JOURNAL (LOUISVILLE), Feb. 7, 1997, at 4A; Monica Dias, Aban- doned Business a Hazardous Waste, KENTUCKY POST, Aug. 24, 1996, at 1K; Mary Dieter, Chemical Cleanup a Success Story; Clarksville Site Called a Model, THE COU- RIER-JOURNAL (LouISVILLE), Dec. 5, 1995, at 1A; Editorial, Reseeding the Brown, THE COURIER-JOURNAL (LOUISVILLE), July 6, 1995, at 6A; Andrew Melnykovych, Using City's Wastelands Seen as Vital to Renewal, THE COURIER-JOuRNAL (LouISVILLE), July 5, 1995, at 1A; Monica Dias, New Environmental Chief Vows to Simplify Rules, Not Gut Them, KENTUCKY POST, June 3, 1996, at 1K; Nina Walfoort, Old Industrial Sites in City Are Prime for New Use, Study Says, THE.COURIER-JOURNAL (LouIsVILLE), Feb. 9, 1996, at 1B; and Karen Merk, Neighborhoods Rebuild Money, Ideas Forge New Life in Old Areas, THE COURIER-JOURNAL (LouISVILLE), Dec. 28, 1996, at 1A. 4. See Stephen M. Johnson, The Brownfield Action Agenda: A Model for Future Federal/State Corporation in the Quest for Environmental Justices? 37 SANTA 30 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
The Kentucky legislature has made preliminary steps in estab- lishing the legal framework for Brownfield redevelopment.5 The emerging Kentucky Brownfield redevelopment program is out- lined below. Additionally, many of the states surrounding Ken- tucky have fully established programs that are successfully recy- cling used industrial property. An analysis of the programs from states surrounding Kentucky6 is presented to aid those interest- ed in formulating a complete program in Kentucky. Finally, pre- liminary efforts on Brownfield redevelopment legislation at the federal level are reported.
II. KENTUCKY The legislative initiative for Brownfield redevelopment in Kentucky commenced in 1996 with the passage of S.B. 219.' The stated purpose of the law was to "encourage economic develop- ment by allowing the issuance of a No Further Remediation Letter to a public entity for a site when the remediation plan has been successfully completed."8 The program is limited to partici- pation by a public entity, which is defined as "the Common- wealth of Kentucky, a county, city, urban-county government, charter county government, or any of their agencies, depart- ments, or any Kentucky Revised Statutes Section 58.180 non- profit nonstock corporation."9 The process of attaining a No Fur- ther Remediation Letter is commenced when the public entity submits an application" to the Cabinet". Expansion of the program to permit private entities to participate would greatly enhance flexibility and usefulness.
CLARA L. REV. 85 (1997). 5. Ky. REv. STAT. ANN. §§ 224.01-450 to -465 (Banks-Baldwin 1996). 6. Ohio, Indiana, Tennessee, West Virginia, and Pennsylvania. 7. See 1996 Ky. Acts 194. 8. KY. REV. STAT. ANN. § 224.01-450 (Banks-Baldwin 1996). 9. Id. § 224.01-455(2). 10. The application must contain: a) A legal description of the property; b) A copy of the deed for the property; c) An environmental site assessment of the site sufficient to characterize the extent of any contamination of the site; d) A proposed plan to remediate the environmental contamination upon the site; and e) The proposed use of the property intended by the public entity after obtaining the No Further Remediation Letter. Id. § 224.01-460(1). 11. Kentucky Natural Resources and Environmental Protection Cabinet. 1997] BROWNFIELD OPPORTUNITIES
Following an opportunity for public comment, the Cabinet may approve, deny or negotiate revisions to the application.12 Follow- ing "satisfactory completion of the approved remediation plan[,] the Cabinet shall issue the No Further Remediation Letter" to the public entity.'" The law is silent on the evaluation criteria that would form the bases for the Cabinet's review of an applica- tion and determination that a remediation plan has been satis- factorily completed. Therein lies an area that must be fixed in order for Kentucky to have a fully viable program. The No Further Remediation Letter 4 signifies a release from further responsibilities for an approved remediation plan 5 and any further responsibilities under the statute 6 to undertake any other remedial action on the site. 7 Additionally, the issu- ance of a No Further Remediation Letter shall be considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require addi- tional remediation under KRS 224.01-400, if the site is utilized
12. Ky. REV. STAT. ANN. § 224.01-460(2) (Banks-Baldwin 1996). 13. Id. § 224.01-460(4). 14. The No Further Remediation Letter: [S]hall be limited to and include all of the following: (a) An acknowledgment that the requirements of the remediation plan were satisfied or are being sat- isfied; (b) A description of the location of the property by reference to a legal description or a plat showing the property's boundaries; (c) The remediation objectives, specifying, as appropriate, any monitoring requirements or any land use limitations imposed as'a result of the remediation efforts; (d) A statement that the cabinet's issuance of the No Further Remediation Letter signifies that the performance of the approved remediation plan has secured release from further responsibilities under KRS 224.01-400 and is considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require further remediation under KRS 224.01-400, if the site is utilized in accordance with the terms of the No Further Remediation Letter; (e) A prohibition against the use by the public entity of the property in a manner inconsistent with any land use limitation imposed as a result of the remediation efforts without additional appropriate remedial activities and a requirement that if the public entity conveys the property to a third party the deed contains binding land use limitations in accordance with the remediation plan; and (f) A description of any preventive, engineering, and institutional controls required in the remediation plan and notification that failure to manage and maintain the controls in full compliance with the terms of the remediation plan may result in voidance of the No Further Remediation Letter. Id. § 224.01-465(2). 15. Id. § 224.01-465(1). 16. Id. § 224.01-400 (Banks-Baldwin 1996). 17. KY. REV. STAT. ANN. § 224.01-465(1) (Banks-Baldwin 1996). 32 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 in accordance with the terms of the No Further Remediation Letter.18 The No Further Remediation Letter shall apply to the proper- ty in favor of present and subsequent title holders19 and shall be recorded with the county clerk of the county in which the property is located.2 ° Consequently, following receipt of the No Further Remediation Letter, the public entity would be free to transfer title of the subject property to the private entity that would complete the development. 21 In that way, the private en- tity would benefit from the findings of the No Further Remediation Letter. The City of Louisville has taken advantage of the No Further Remediation Letter process for a parcel of land located on Gar- field Avenue in the Portland neighborhood.2 2 The city acquired title to the site of a former plating company. Remediation is complete and the site awaits approval by the Cabinet and issu- ance of the No Further Remediation Letter.
18. Id. 19. See KY. REV. STAT. ANN. § 223.01-465(3) (Banks-Baldwin 1996) which pro- vides: The No Further Remediation Letter shall apply to the property in favor of the fol- lowing persons: (a) The public entity to which the No Further Remediation Letter was is- sued; (b) Any mortgagee or trustee, or their assignee, transferee, or any successor in interest, of a deed of trust of the public entity property; (c) Any successor in interest of the public entity; (d) Any transferee of the public entity whether the transfer was by sale, bankruptcy proceeding, partition, settlement, or adjudication of any civil action, charitable gift, or bequest; and (e) Any financial institution, or their successor in interest, that after the date the No Further remediation Letter was issued acquire the ownership, operation, management, or control of the property through foreclosure, or under the terms of a security interest held by the financial institution, or under the terms of an extension of credit made by the financial institution. 20. KY. REV. STAT. ANN. § 224.01-465(5) (Banks-Baldwin 1996). 21. Under this type of hypothetical scenario, the private owner would have en- tered into an agreement with the public entity. This agreement would spell out the private owner's responsibility to fund the remediation that the public entity must complete in order to obtain the No Further Remediation Letter. 22. Contact Bonnie Biermer with the City of Louisville Office of Health and Envi- ronment. 1997] BROWNFIELD OPPORTUNITIES
III. OHIO In 1994, the Ohio legislature addressed the issue of Brownfield redevelopment by passing a law entitled the "Voluntary Cleanup of Contaminated Property"2 that created a Voluntary Action Program. Participation in the Voluntary Action Program ("Pro- gram") is open to public and private entities for any property, provided the clean-up is not mandated by: 1) federal law or regu- lation;24 2) closure requirements for hazardous waste and solid waste facilities;25 3) the fire marshal in the Department of Com- merce program for regulated underground storage tanks; 2 4) section 1509;27 or 5) a letter issued by the director of environ- mental protection "notifying the owner or operator of the proper- ty that he will issue an enforcement order under Chapter 3704, 3734, or 6111 of the Revised Code" because a: [r]elease or threatened release of a hazardous substance or petro- leum from or at the property poses a substantial threat to public health or safety on the environment, and the person subject to the order does not present sufficient evidence to the director that he has entered into the voluntary action program under this chapter and is proceeding expeditiously to address that threat." The law called for the creation of regulations that would pre- scribe the rights and duties of a volunteer entering the Program and the professionals that provide the support services.29 A multidisciplinary council advised the director on the formation of rules.3 0 The council was comprised of members: [f]rom the departments of commerce, development, and health; representatives of the banking, manufacturing, utility, and real estate development industries, the regulated community, certified
23. OHIO REv. CODE ANN. § 3746 (Banks-Baldwin 1997). 24. Id. § 3746.02(A)(1). Applicable federal laws include the Federal Water Pollu- tion Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1387 (1994 & Supp.I 1995)); the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992 (1994 & Supp.I 1995); the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692 (1994 & Supp.I 1995); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (1994); and the Safe Drinking Water Act, 42 U.S.C. §§ 300(f) to 300 (j-l) (1994 & Supp. 1997). 25. See OHIO REV. CODE ANN. § 3734 and rules adopted thereunder. 26. OHIO REV. CODE ANN. § 3737.88 (Banks-Baldwin 1993). 27. OHIO REV. CODE ANN. § 1509 is entitled "Oil and Gas." 28. OHIO REV. CODE ANN. § 3746'02(A)(5) (Banks-Baldwin 1994). 29. OHIO ADMIN. CODE §§ 3745-300 to -300-99 (1997). 30. OHIO REV. CODE ANN. § 3746.03 (Banks-Baldwin 1994). 34 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
professionals, professions whose members have practical expe- rience in the investigation or remediation of releases of hazardous substances or petroleum into the environment, municipal corpora- tions, counties, townships, environmental advocacy organizations, and citizens organizations whose members are knowledgeable about the cleanup of sites." Upon satisfactory completion of a cleanup, as determined by a certified environmental professional, a No Further Action Letter shall be issued by the certified professional. 2 Upon receipt of a No Further Action Letter the person may apply to the director of environmental protection for a covenant not to sue."3 The cove- nant not to sue shall contain a provision releasing the person who undertook the Program from all civil liability to the State of Ohio for performance of additional investigational and remedial activities in order to address a release of hazardous substances or petroleum when the property has undergone a phase I or phase II property assessment in compliance with the Program, or has been the subject of remedial activities consistent with the Program. 4 The covenant not to sue shall exclude liability for "natural resource damages the state may have pursuant to... the 'Comprehensive Environmental Response, Compensation, and Liability Act of 1980."'' The No Further Action Letter and the covenant not to sue "shall be filed in the office of the county recorder of the county in which the property is located by the person to whom the covenant not to sue was issued,"" and "may be transferred by the recipient to any other person by as- signment or in conjunction with the acquisition of title to the property to which the document applies."37 The Program law also authorizes the volunteer to recover costs
31. Id. 32. See OHIO REV. CODE ANN. § 3746.10. A "certified professional" is defined as a "person certified by the director pursuant to rule 3745-300-05 of the Administrative Code, or deemed to be certified under division (E) of section 3746.07 of the Revised Code to issue no further action letters under section 3746.11 of the Revised Code." OHIO ADMIN. CODE § 3745-300-01(8) (1997). OHIO REv. CODE ANN. § 3746.07(D) provided interim certification requirements that were in effect until the Program rules were finally promulgated. 33. OHIO REV. CODE ANN. § 3746.12 (Banks-Baldwin 1994). 34. Id. § 3746.12(A)(1). 35. Id. § 3746.12(A)(1)(b). 36. Id. § 3746.14(A). 37. Id. § 3746.14(C). 1997] BROWNFIELD OPPORTUNITIES associated with the cleanup from the person who "was the owner or operator of the property, and any other person who caused or contributed to a release of hazardous substances at or. upon the property.""8 To bring the cost recovery claim, the volunteer must not have caused or contributed to any release of hazardous sub- stances at or upon the property that was identified and ad- dressed by the voluntary action.3 9 Parties that hold indicia of ownership in a property primarily to protect a security interest, or as a fiduciary or trustee, shall have no liability provided they did not participate in the contamination.4 ° The Program procedure is commenced by the performance of a Phase I Property Assessment4' by a certified professional. The purpose of this initial assessment is to: determine whether there is any reason to believe that a release of hazardous substances or petroleum has or may have occurred on, underlying, or is emanating from a property including any release from management, handling, treatment, storage, or disposal activ- ities from on or off-property activities."2 The volunteer's minimum duty is to "perform a review of the historic and current uses of the property, review the environmen- tal history of the property, and review the property hazardous substance or petroleum release history, and must conduct a prop- erty inspection."'3 From this work, the volunteer "must identify all areas located on or underlying the property which are or may contain hazardous substance or petroleum and all areas where hazardous substances or petroleum are or may be emanating from the property."" Then, "[t]he volunteer must complete a written 'Phase I Property Assessment' report."'" At this point it can be determined whether a "Phase II Proper-
38. Id. § 3746.23(B). 39. OHIO REV. CODE ANN. § 3746.23(B) (Banks-Baldwin 1994). The civil action may be commenced at any time after the volunteer commences the conduct of the voluntary action in the court of common pleas of the county in which is located the property at which the voluntary action is conducted. Id. § 3746.23(C). The civil action shall be commenced under this section within three years after the applicable No Further Action letter was submitted to the director of environmental protection. Id. 40. Id. §§ 3746.26, 3746.27. 41. OHIO ADMiN. CODE § 3745-300-06 (1997). 42. Id. § 3745-300-06(B). 43. Id. § 3745-300-06(D). 44. Id. § 3745-300-06(F)(1). 45. Id. § 3745-300-06(I). 36 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ty Assessment" is necessary. A Phase II Assessment "must be conducted ... if a 'Phase I Property Assessment'... reveals any information that establishes any reason to believe that a release of hazardous substances or petroleum has or may have occurred on, underlying or is emanating from the property."'46 However, the Phase II Property Assessment is not required "when a re- lease within an identified area is demonstrated to be de mini- mis"47 The purpose of a Phase II Property Assessment is to "con- duct an investigation sufficient to determine whether applicable standards are met in all identified areas and affected media or to determine that remedial activities conducted in accordance with rule 3745-300-15 of the Administrative Code at the property have or will achieve applicable standards. 48 The Program has established "applicable standards" that are directed by the existing/proposed use of the property.49 The standards take the form of acceptable concentration limits for the "chemical(s) of concern"5 ° in soil and groundwater.51 As an alternative to the generic numbers for each chemical constituent, a volunteer may choose a property-specific risk assessment pro- cedure.52 For a chemical of concern that is a carcinogen, the cu- mulative carcinogenic risk for a residential exposure must be no greater than one in 100,000 (1 x 10-5)."3 For an industrial expo- sure, on the other hand, the cumulative carcinogenic risk must be no greater than one in 10,000 (1 x 10-4), provided the cumula- tive cancer risk to off-property receptors does not exceed one in 100,000 (1 x 10-5)."'
46. OHIO ADMIN. CODE § 3745-300-07(A)(1) (1997). 47. Id. 48. Id. § 3745-300-07(C). 49. See OHIO REV. CODE ANN. § 3746 (Banks-Baldwin 1994). 50. A "chemical of concern" is a hazardous substance or petroleum identified at the property which does not meet the applicable standards established for back- ground at OAC § 3745-300-07 or does not constitute de minimis contamination estab- lished in OAC § 3745-300-06. OHIO ADMIN. CODE § 3745-300-09(D)(3)(a) (1997). 51. Id. § 3745-300-08. 52. Id. § 3745-300-09(B)(1). 53. Id. § 3745-300-09(C)(1)(a). 54. Id. § 3745-300-09(C)(1)(b). 1997] BROWNFIELD OPPORTUNITIES
IV. INDIANA In 1996, the Indiana legislature addressed Brownfield redevel- opment by passing the "Voluntary Remediation of Hazardous Substances and Petroleum" law.55 Participation in the voluntary program is open to any person," and is commenced by the sub- mittal of an application and a fee to the department. 7 Informa- tion contained in the application58 shall remain confidential be- tween the applicant and the department unless the department rejects the application.59 The application must include an envi- ronmental assessment of the property. 0 "Not more than thirty (30) days after receiving: (1) an application; and (2) an applica- tion fee;.. ., the department shall determine if the applicant is eligible to participate in the voluntary remediation program."' An application may be rejected if: (1) [a] state or federal enforcement action that concerns the remediation of the hazardous substance or petroleum described in the application is pending[;] (2) [a] federal grant 2 requires an enforcement action at the site[;] (3) [tlhe condition of the hazard- ous substances or petroleum described in the application consti- tutes an imminent and substantial threat to human health or the
55. IND. CODE §§ 13-25-5-1 to -23 (1997). 56. Id. § 13-25-5-2. 57. Id. The term "department" refers to the Indiana Department of Environmen- tal Management. 58. The application must be on a form provided by the department and must contain the following information: 1) general information concerning the person, the site, and other background information as requested by the department; 2) "an en- vironmental assessment of the actual or threatened release of the hazardous sub- stance or petroleum at the site,"; and 3) the application must "be accompanied by an application fee of one thousand dollars." IND. CODE § 13-25-5-2(c) (1997). 59. Id. § 13-25-5-2(b). 60. The environmental assessment must include the following: 1) a legal description of the site; 2) the physical characteristics of the site;, 3) the operational history of the site to the extent the history is known by the applicant; 4) information that the applicant is aware of concerning: (A) the nature and extent of any relevant contamination; and (B) relevant releases at the site and immediately contiguous to the site[;] and 5) relevant information the applicant is aware of concerning the potential for human exposure to con- tamination at the site. Id. § 13-25-5-3. 61. Id. § 13-25-5-4. 62. States receive federal grants to carry out primary enforcement authority to a number of federal programs. 38 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
environment[; or] (4) [t]he application is incomplete. 3 When the application is determined to be eligible for the pro- gram, the applicant may submit a proposed voluntary remediation work plan (hereinafter "work plan") to the depart- ment.64 The department will evaluate the work plan after the applicant has entered into a voluntary remediation agreement "that sets forth the terms and conditions of the evaluation and the implementation of the work plan."65 The timing requirement of signing onto the remediation agreement before reaching agree- ment on the scope of the work plan creates the practical problem that the volunteer is committing to a project without knowing precisely what the project will entail. Approval of the voluntary remediation work plan will not be granted until after the com- missioner has made a copy of the work plan available to the pub- lic, and offered a thirty day comment period.66 A public hearing must be held before acting on the work plan if at least one writ-
63. IND. CODE § 13-25-5-5(a) (1997). 64. A proposed voluntary remediation work plan must include the following: (1) [dletailed documentation of the investigation conducted by the applicant in preparing the proposed voluntary remediation work plan and a description of the work to be performed by the applicant to determine the nature and extent of the actual or threatened release[;] (2) [a] proposed statement of work to accomplish the remediation in accordance with guidelines established by the department[;] (3) [pllans concerning the following: (A) [q]uality assurance for the implementation of the proposed remediation project[;] (B) [d]escriptions of sampling and analysis[;] (C) [h]ealth and safety considerations[;] (D) [c]ommunity relations ... (E) [d]ata management and record keeping; and (F) [a] proposed schedule concerning the implementation of all tasks set forth in the proposed statement of work. Id. § 13-25-5-7(b). 65. The voluntary remediation agreement must include the following: (1) provisions for the department to recover reasonable costs that are incurred by the department in the review and oversight of the work plan exceeding the fees previously submitted to the department; (2) a mechanism to resolve dis- putes arising from the evaluation, analysis, and oversight of the implementa- tion of the work plan based on arbitration, adjudication, or dispute resolution procedures provided under the Indiana Rules of Court; (3) indemnification of the parties; (4) a timetable for the department to reasonably review and evalu- ate the adequacy of the work plan and make a determination concerning the approval or rejection of the work plan; and (5) other provisions deemed neces- sary by the commissioner. Id. § 13-25-5-8(a). 66. Id. §§ 13-25-5-11(a) and (b). A copy of the work plan must be placed at the county library in the county where the site is located. Additionally, the commissioner must publish a notice requesting comments concerning the proposed work plan. Id. 1997] BROWNFIELD OPPORTUNITIES ten request for a public hearing is timely received.67 The com- missioner shall consider all written comments and public tes- timony.68 Rejection of the work plan by the commissioner may be appealed by the volunteer.69 If the work plan is approved and the volunteer intends to go through with the remediation, the volunteer must notify the commissioner of its intent within sixty days of the approval.7° During implementation of the work plan, the volunteer is insulated from litigation arising under state law claims, includ- ing administrative actions, arising from "release of hazardous substances or petroleum that was the subject of the voluntary remediation work plan. 71 The department will oversee and re- view the implementation of the work plan and make regular reports to the commissioner concerning the remediation.72 Upon successful completion of the work plan, the commissioner will "certify that the work plan has been completed by issuing the applicant a certificate of completion. '73 The issuance of a certifi- cate of completion is a final agency action for purposes of admin- istrative appeal.74 A copy of the certificate of completion shall be attached to the recorded deed that concerns the property on which the remediation took place.75 In addition to the certificate of completion, the volunteer is eligible to receive a covenant not to sue from the state for any liability, including future liability, or a claim arising from the release of a hazardous substance or petroleum that is the subject of the work plan successfully conducted by the volunteer. 7 The covenant not to sue will inure to the benefit of the volunteer that performed the work plan, any other person who receives the certificate of completion through a legal transfer of the certificate
67. IND. CODE § 13-25-5-11(c) (1997). 68. Id. 69. Id. § 13-25-5-12. 70. Id. § 13-25-5-14. The notice must state that the volunteer intends to proceed with the implementation of the work plan and the volunteer agrees to the starting and completion dates set forth by the commissioner. Id. 71. IND. CODE § 13-25-5-18 (1997). 72. Id. § 13-25-5-15. 73. Id. § 13-25-5-16(a). 74. Id. § 13-25-5-16(b). See IND. CODE § 4-21.5 for the administrative appeal procedure. 75. IND. CODE § 13-25-5-16(b). 76. Id. § 13-25-5-18(a). 40 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 of completion, or to those acquiring property to which the certifi- cate of completion applies." Protection from liability also ex- tends to potential third party contribution claims arising from 7 8 state law.
V. TENNESSEE In Tennessee, voluntary remediation of Brownfield is handled through the state "Superfund" law enacted in 1984."7 Titled the "Voluntary Cleanup Oversight and Assistance Program," it is available to any party willing and able to conduct an investiga- tion and cleanup of an inactive hazardous substance site.' The volunteer must enter into a consent order8 ' and pay a fee of five thousand dollars.8 2 'The criteria for selecting containment and cleanup actions ... shall be those specified in" the state Superfund program.83 Upon satisfactory completion of the con- sent order, the commissioner shall issue a letter to the volunteer indicating that the obligations under the consent order have been completed and, "if appropriate," that no further action will
77. Id. § 13-25-5-18(b). 78. Id. § 13-25-5-20. 79. TENN. CODE ANN. § 68-212-224 (1997). 80. Id. § 68-212-224(a). 81. The consent order must outline the steps to be taken for investigation, clean- up, monitoring, maintenance and oversight cost reimbursement. Id. 82. TENN. CODE. ANN. § 68-212-224(b). 83. Id. § 68-212-224(e). Section 68-212-206(d) provides the state Superfund criteria for containment and clean up actions: In selecting containment and clean-up actions, 'including monitoring and main- tenance, under this section, the commissioner shall evaluate reasonable alterna- tives and select those actions which the commissioner determines are necessary to protect public health, safety, and the environment. The goal of any such ac- tion shall be clean up and containment of the site through the elimination of the threat to the public health, safety, and the environment posed by the haz- ardous substance. In choosing the necessary actions at each site, the commis- sioner shall consider the following factors: (1) The technological feasibility of each alternative; (2) The cost-effectiveness of each alternative; (3) The nature of the danger to the public health, safety, and the environ- ment posed by the hazardous substance at the site; and (4) The extent to which each alternative would achieve the goal of this sub- section. To the extent practicable, any such containment and clean up, including moni- toring and maintenance, shall be consistent with the national contingency plan promulgated pursuant to § 105 of Public Law 96-510. TENN. CODE ANN. § 68-212-206(d) (1997). 1997] BROWNFIELD OPPORTUNITIES be required of the participating party.84
VI. WEST VIRGINIA Enacted in 1996, the "Voluntary Remediation and Redevelop- ment Act" was passed by the West Virginia legislature to put property to its highest productive use." The Act requires that the director of the West Virginia Division of Environmental Pro- tection promulgate regulations to implement Brownfield revital- ization and voluntary remediation."6 The program will be avail- able to sites except those subject to a federal Environmental Pro- tection Agency unilateral enforcement order, under Section 104 through Section 106 of the Comprehensive Environmental Re- sponse, Compensation and Liability Act (CERCLA),s7 those list- ed or proposed to be listed by the U.S. EPA on the priorities list of Title I of CERCLA, those subject to a unilateral enforcement order under Section 3008 and Section 7003 of the Resource Con- servation and Recovery Act (RCRA),ss or those subject to any unilateral enforcement order for corrective action under the West Virginia environmental protection chapter.89 Additionally, the release which is subject to remediation must not have been cre-
84. TENN. CODE ANN. § 68-212-224(g). 85. W. VA. CODE § 22-22-1 (1996). The Legislature also found "that abandonment or under use of contaminated or potentially contaminated industrial sites results in inefficient use of public facilities and services and increases the pressure for develop- ment of uncontaminated pristine land." Id. § 22-22-1(b). Further, the Legislature found that the existing legal structure brought about uncertainties "regarding the legal effect of remediation upon liability", and that an administrative program should be established "to encourage persons to voluntarily develop and implement remedial plans without the need for enforcement action by the division of environmental pro- tection". Id. § 22-22-1(c). 86. W. VA. CODE § 22-22-3. The director must: (a) [e]stablish an administrative program for both Brownfield revitalization and voluntary remediation, including application procedures; (b) [e]stablish proce- dures for the licensure of remediation specialists, including, but not limited to establishing licensing fees, testing procedures, disciplinary procedures and methods for revocation of licenses; (c)[e]stablish procedures for community notification and involvement; (d) [e]stablish risk-based standards for remediation; (e) [e]stablish standards for the remediation of property; and (f) [establish a risk protocol for conducting risk assessments and establishing risk-based standards. 87. 42 U.S.C. § 9601 (1997). 88. 42 U.S.C. § 6901 (1997). 89. W. VA. CODE § 22-22-4(a) (1996). 42 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ated through gross negligence or willful misconduct.9" Participation in the program is commenced with an applica- tion9 and an application fee to be determined by the director.92 Information submitted to the director "shall be available to the public, unless the director certifies such information to be confi- dential."93 The division must publish an acknowledgment noting the receipt of notification in a division publication of general cir- culation.94 Notice shall also be given "to the municipality and the county in which the site is located, and a summary of the notice of intent shall be published in a newspaper of general circulation serving the area in which the site is located."95 The notice "shall include a thirty-day public, county and municipal comment period during which the public, county and municipali- ty can request to be involved in the development of the remediation and reuse plans for the site. 96 Following acceptance of an application, the director and appli- cant shall enter into an agreement for the remediation of the site. 7 If an agreement is reached, the applicant must then sub- mit a work plan.9" The applicant is free to terminate the agree- ment at any time by giving a fifteen day advance written notice of termination.99 Upon completion of the work in the voluntary
90. Id. 91. Id. § 22-22-4(b). The application must contain the "applicant's name, address, financial and technical capability to perform the voluntary remediation, a general description of the site, a site assessment of the actual or potential contaminants made by a licensed remediation specialist and all other information required by the director." Id. 92. W. VA. CODE § 22-22-4(b). 93. Id. § 22-22-4(d). 94. Id. § 22-22-17(a). 95. Id. 96. Id. § 22-22-17(b). "If requested by the public, county, municipality or the director, the person undertaking the remediation shall develop and implement a public involvement program plan" set forth by the director. Id. 97. W. VA. CODE § 22-22-7. The agreement must: (a) include "the terms and conditions of the evaluation of the reports and the implementation of work plans"; (b) "provide for the services of a licensed remediation specialist for supervision of all activities described in the agreement"; (c) "provide for cost recovery of all reasonable costs incurred by the division in review and oversight of the person's work plan and reports as a result of field activities or attributable to the voluntary remediation agreement"; and (d) provide that all amendments or modifications be "reduced to writing and mutually agreed upon by the parties to the agreement". Id. 98. W. VA. CODE § 22-22-8. 99. Id. § 22-22-9. The applicant remains liable for "costs incurred or obligated by the director before notice of termination of the agreement." Id. 19971 BROWNFIELD OPPORTUNITIES 43 remediation agreement and a determination that the property meets the applicable standards, the licensed remediation spe- cialist shall issue a final report to the volunteer.0 0 "Upon re- ceipt of the final report, the person may seek- a certificate of completion from the director." '' The certificate will contain a provision relieving a volunteer from all liability to the state under defined conditions.0 2 "Con- tamination identified in the remediation agreement submitted to and approved by the division shall not be subject to citizen suits or contribution actions."'' The protections from liability will extend to the current owner or operator of the site, including: (1) ...development authorities and fiduciaries who participate in the remediation of the site; (2) a person who develops or otherwise occupies the site; (3) a successor or assign of any person to whom the liability protection applies; (4) a public utility... ; (5) a remediation contractor; (6) a licensed remediation specialist; and (7) a lender or developer who engages in the routine practices of commercial lending ....4 The certificate will be subject to reopener provisions0 5 and
100. W. VA. CODE § 22-22-13. 101. Id. The director may delegate the responsibility of issuing certificates to a licensed remediation specialist under certain circumstances. Id. § 22-22-13(b). 102. W. VA. CODE § 22-22-13(c). 103. Id. § 22-22-18(a). 104. Id. 105. Reopeners will occur in instances when the director demonstrates that: (a) [firaud was committed in demonstrating attainment of a standard at the site that resulted in avoiding the need for further remediation of the site; (b) [n]ew information confirms the existence of an area of a previously un- known contamination which contains contaminants that have been shown to exceed the standards applied to the previous remediation at the site; (c) [the level of risk is increased significantly beyond the established level of protection at the site due to substantial changes in exposure conditions, such as, a change in land use, or new information is obtained about a contaminant associated with the site which revises exposure assumptions beyond the ac- ceptable range. Any person who changes the use of the property causing the level of risk to increase beyond established protection levels shall be required by the division to undertake additional remediation measures under the provi- sions of this article; (d) [tihe release occurred after the effective date of this article on a site not used for industrial activity prior to the effective date of this article; the reme- dy relied, in whole or in part, upon institutional or engineering controls in- stead of treatment or removal of contamination; and treatment, removal or destruction has become technically and economically practicable; or (e) Itihe remediation method failed to meet the remediation standard or com- 44 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 land-use covenants. "If institutional and engineering controls are used, in whole or in part, to achieve a remediation standard, the'l° director shall direct that a land-use covenant be applied.)' The land-use covenants shall appear in the chain of title by deed, and "be properly recorded in the office of the county clerk where the remediation site is located."'' 7 Specifically, the covenant must: contain a provision relieving the person who undertook the remediation and subsequent successors and assigns from all civil liability to the state.., and shall remain effective as long as the property complies with the applicable standards in effect at the time the covenant was issued."8 The penalty for violating a covenant is quite severe: "[w]hoever knowingly violates a land-use covenant by converting nonresi- dential property to residential property is guilty of a felony, and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars, imprisoned for not more than five years, or both.,,109
VII. PENNSYLVANIA In 1995, the Pennsylvania legislature passed the "Land Recy- cling and Environmental Remediation Standards Act""0 to ad- dress a number of related development and liability issues."' The law called for the formation of an Environmental Quality
bination of standards. W. VA. CODE § 22-22-15. 106. W. VA. CODE § 22-22-14. 'The covenant shall include whether residential or nonresidential exposure factors were used to comply with the site-specific standard." Id. 107. Id. 108. Id. 109. Id. § 22-22-14(b). 110. 35 PA. CONS. STAT. § 6026.101-6026.908 (1996). 111. The title of the Act is as follows: An Act providing for the recycling of existing industrial and commercial sites; further defining the cleanup liability of new industries and tenants; establish- ing the Voluntary Cleanup Loan Fund, the Industrial Land Recycling Fund and the Industrial Sites Cleanup Fund to aid industrial site cleanups; assign- ing powers and duties to the Environmental Quality Board and the Depart- ment of Environmental Resources; and making repeals. Land Recycling and Environmental Remediation Standards Act of May 19, 1995, P. L. 4, No. 2, § 101 (codified at 35 PA. CONS. STAT. § 6026.101-.908). 1997] BROWNFIELD OPPORTUNITIES
Board for the purposes of, among other things, adopting and amending statewide health standards and appropriating "mathe- matically valid statistical tests to define compliance with" the law.' Next, the law authorized the formation of a Cleanup Standards Scientific Advisory Board for the purpose of assisting the department and the Environmental Quality Board in developing Statewide health standards, determining the appropri- ate statistically and scientifically valid procedures to be used, determining the appropriate risk factors and providing other tech- nical and scientific advice as needed to implement the provisions of this act."' These remediation standards "shall be used whenever site remediation is voluntarily conducted or is required under" the 4 Pennsylvania Environmental Statutes." Remediation standards for voluntary cleanups must conform to one of three standards: (1) a background standard;"' (2) a statewide health standard;"' or (3) a site-specific standard which achieves remediation levels based on a site-specific risk assessment."7 Volunteers performing a site cleanup may em- ploy a combination of the standards." 8 Volunteers demonstrat- ing compliance with the background standard for all regulated
112. 35 PA. CONS. STAT. § 6026.104(a). 113. Id. § 6026.105(a). 114. Id. § 6026.106(a). The Pennsylvania Environmental Statutes include: The Clean Streams Law, 35 PA. CONS. STAT. § § 691.1-691.1001 (1996); The Air Pollution Control Act, 35 PA. CONS. STAT. § 4001-4015 (1996); The Solid Waste Management Act, 35 PA. CONS. STAT. §§ 6018.101-6018.1003 (1996); The Infectious and Chemother- apeutic Waste Law, 35 PA. CONS. STAT. §§ 6019.1-6019.6 (1996); The Hazardous Sites Cleanup Act, 35 PA. CONS. STAT. §§ 6020.101-6020.1305 (1996); and The Storage Tank and Spill Prevention Act, 35 PA. CONS. STAT. §§ 6021.101-6021.2104 (1996). Additionally, the environmental remediation standards shall be considered as applica- ble, relevant and appropriate requirements (ARARs) for Pennsylvania under the Com- prehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.A. § 9601-9675 (1995). 115. 35 PA. CONS. STAT. § 6026.301(a) (1996). 116. Id. § 6026-301(a)(2). The standard must achieve "a uniform statewide health- based level so that any substantial present or probable future risk to human health and the environment is eliminated." Id. Section 303 of the Act prescribes the ap- proach to establishing the statewide health-based levels. 117. 35 PA. CONS. STAT. § 6026.301(a)(3). The site-specific risk assessment must insure "that any substantial present or probable future risk to human health and the environment is eliminated or reduced to protective levels based upon the present or currently planned future use of the property." Id. Section 304 of the Act prescribes the approach to performing a site-specific risk assessment. 118. 35 PA. CONS. STAT. § 6026.301(b). 46 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 substances need not provide notice in the property deed' re- quired by the Solid Waste Management Act" ° or the Hazard- ous Sites Cleanup Act 21 . The background standard shall never be less than the practical quantitation limit for the regulated substance as determined by the United States Environmental Protection Agency (U.S. EPA). The public and the depart- ment must be notified of any planned remediation activities by a notice of intent. 3 The notice of intent must be provided to the department and the municipality, while "a summary of the no- tice of intent shall be published in a newspaper of general circu- lation serving the area in which the site is located."'24 "A final report that documents attainment of the background standard shall be submitted to the department."'25 Notice that the final report has been submitted to the department must "be given to the municipality in which the remediation site is located and published in a newspaper of general circulation serving the area and in the Pennsylvania Bulletin."'28 Within sixty days the de- partment shall notify the volunteer of deficiencies in the re- port.'27 "If the department does not respond with deficiencies within the sixty days, the final report shall be deemed approved."" Institutional controls 29 may not be used to at-
119. 35 PA. CONS. STAT. § 6026.302(d). 120. 35 PA. CONS. STAT. §§ 6018.101-6018.1003. 121. 35 PA. CONS. STAT. §§ 6020.101-6020.1305. 122. Id. § 6026.301(c). The practical quantitation limit is the lowest level above which quantitative results may be obtained with an acceptable degree of confidence. See § 6026.103. 123. 35 PA. CONS. STAT. § 6026.302(e). The notice shall provide "a brief description of the location of the site, a listing of the contaminant or contaminants involved, a description of the intended future use of the property for employment opportunities, housing, open space, recreation or other uses and the proposed remediation mea- sures." Id. § 6026.302(e)(1)(i). 124. 35 PA. CONS. STAT. § 6026.302(e)(1)(ii). 125. Id. § 6026.302(b)(2). The report must contain: (i) [tihe descriptions of procedures and conclusions of the site investigation to characterize the nature, extent, direction, volume and composition of regulated substances [; and] (ii) [tihe basis for selecting environmental media of concern, descriptions of removal or decontamination procedures performed in remediation, summaries of sampling methodology and analytical results which demonstrate that remediation has attained the background standard. Id. 126. 35 PA. CONS. STAT. § 6026.302(e)(2). 127. Id. § 6026.302(e)(3). 128. Id. 129. Institutional controls can include such things as fencing and future land use 1997] BROWNFIELD OPPORTUNITIES tain the background standard; however, "[ilnstitutional controls may be used to maintain the background standard after remediation occurs. 13 ° 'The Environmental Quality Board shall promulgate State- wide health standards for regulated substances for each environ- mental medium ... Standards adopted under this section shall be no more stringent than those standards adopted by the Feder- al Government."'31 Standards shall be promulgated for each en- vironmental medium." 2 A final report that documents attain- ment of the statewide health standard shall be submitted to the department."= Institutional controls may not be used to attain the statewide standard; however, "[i]nstitutional controls may be used to maintain the Statewide health standard after remediation occurs."'3 4 Deed acknowledgments are required "where nonresidential exposure factors were used to comply with the Statewide health standard."'" Notice of intent to remediate and notice of the submission of the final report track the require- ments for remediation to background standards." Site-specific standards shall be developed where background or statewide health standards are not achieved. 37 For carcino- gens, the site-specific "standards shall be established at expo- sures which represent an excess upper-bound lifetime risk of 1 between 1 in 10,000 and 1 in 1,000,000. 3
restrictions. Id. § 6026.302(b)(4). 130. Id. 131. 35 PA. CONS. STAT. § 6026.303(a). 132. Id. The environmental media are air, water, and land. 133. 35 PA. CONS. STAT. § 6026.303(e). The report shall: include[] the descriptions of procedures and conclusions of the site investigation to characterize the nature, extent, direction, rate of movement of the site [sic] and cumulative effects, if any, volume, composition and concentration of con- taminants in environmental media, the basis for selecting environmental media of concern, documentation supporting the selection of residential or nonresiden- tial exposure factors, descriptions of removal or treatment procedures per- formed in remediation, summaries of sampling methodology and analytical results which demonstrate that contaminants have been removed or treated to applicable levels and documentation of compliance with postremediation care requirements if they are needed to maintain the Statewide health standard. Id. § 6026.303(a)(2). 134. 35 PA. CONS. STAT. § 6026.303(e)(3). 135. Id. § 602 6 .3 03 (g). 136. See supra notes 123-128 and accompanying text. 137. 35 PA. CONS. STAT. § 6026.304(a) (1996). 138. Id. § 6026.304(b). 48 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
VIII. FEDERAL Because the state programs described above would be uniform- ly ineffective at providing protection from a claim of liability under the federal environmental laws and regulations, there has been an effort to have Congress recognize Brownfield cleanups and liability protections as being free from liability. In the inter- im until federal legislation has been put in place, the U.S. EPA has issued "Comfort Letters" for some of the state-led Brownfield programs. For example, Indiana has a "Comfort Letter" for its program from U.S. EPA with Region V."39 U.S. EPA published guidance on the issuance of comfort/status letters."4 The Guid- ance addressed the issuance of a Memoranda of Agreement ("MOA") between the U.S. EPA regional office ("Regions") and the state EPA."' For sites included within the scope of the MOA, Regions and states could agree that U.S. EPA would not exercise cost recovery authority and would not generally antici- pate taking a removal or remedial action on condition that the site is being addressed by a state-led voluntary cleanup pro- gram."2 The Guidance was short-lived; U.S. EPA withdrew it in November, 1997, citing a lack of consensus on "critical as- pects" of the guidance or on the appropriate course of action for U.S. EPA." The memorandum writers suggested that U.S. EPA continue to look to an interim guidance memo issued by
139. Superfund Memorandum of Agreement (visited May 30, 1997)
U.S. EPA on November 14, 1996.144 The interim memorandum established six baseline criteria for approvable voluntary cleanup programs"4 and provided the model language that would be included in any MOA.'" Finally, U.S. EPA has developed a program to provide econom- ic assistance to Brownfield redevelopment projects. 147 Guidance on submittal of assistance applications was provided in the Fed- sixty-four eral Register." As of September, 1997, there149 were national and fifty-one regional pilot projects. Unfortunately, even the "Comfort Letter" does not offer iron- clad protection from liability. Thus, federal legislation is still necessary. One initiative to amend CERCLA would expand the "innocent purchaser" defense to include persons who have com-
144. Id. 145. Interim Approaches for Regional Relations With State Voluntary Cleanup Pro- grams (visited January 26, 1998)
IX. CONCLUSION Kentucky's entry into the arena of Brownfield redevelopment legislation falls short of many surrounding state programs. Par- ticipation is not available for a private party. Acceptable remediation/cleanup levels have not been established. Finally, comfort that a state-approved study and remediation would gar- ner approval from the U.S. EPA has not been established. The purpose of this article was to highlight the Brownfield redevelop- ment programs in the states surrounding Kentucky. When the Kentucky legislature considers expanding the program, the suc- cesses and failures of programs from these surrounding states should prove to be helpful information.
150. 143 CONG. REC. 5234-01, 5346 (1997). AMERICAN MINING CONGRESS v. ARMY CORPS OF ENGINEERS:
IGNORING CHEVRON AND THE CLEAN WATER ACT'S BROAD PURPOSES
by Bradford C. Mank' In 1993, the United States Army Corps of Engineers ("Corps") and the Environmental Protection Agency (EPA) (hereinafter "agencies") used their shared authority to protect wetlands under section 404 of the Clean Water Act ("Act") to jointly promulgate the so-called Tulloch rule to regulate the harmful environmental effects of incidental fallback from dredging operations.2 In Amer- ican Mining Congress v. Army Corps of Engineers, the United States District Court for the District of Columbia concluded that Congress did not intend that incidental fallback from excavation or dredging should be considered the discharge of dredge or fill material into navigable waters under the Act and, accordingly, that the agencies did not have the authority to require a permit for this activity.4 Under the principles of Chevron U.S.A., Inc. v. Natural Re- sources Defense Council, Inc.,' Judge Harris should have de- ferred to the agencies' interpretation of section 404(a). While there is little specific support in the Act's text or legislative his- tory for the agencies' interpretation, Judge Harris overstated the extent to which Congress had indicated that it did not want the agencies to regulate incidental fallback. As long as a statute is ambiguous, Chevron requires a court to defer to an agency's interpretation even if a different interpretation may have some- what stronger support in the statute or better fit the judge's
1. Professor of Law, University of Cincinnati College of Law. A.B., Harvard, 1983; J.D., Yale Law School, 1987. 2. Army Corps of Engineers & EPA, Clean Water Act Regulatory Programs, 58 Fed. Reg. 45008, 45009-13 (1993) (codified at various C.F.R. sections, including 33 C.F.R. Pts. 323 & 328); Federal Water Pollution Control Act Amendments of 1972, § 404(a), 33 U.S.C. § 1344(a) (1997). 3. 951 F. Supp. 267 (D.D.C. 1997). 4. Id. at 272-78. 5. 467 U.S. 837 (1984). 52 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 policy views.6 Because section 404(a) is ambiguous regarding the agencies' authority to regulate incidental fallback material from dredging and the agencies' interpretation plausibly serves the Act's broad purposes in protecting wetlands, the district court erred in striking down the Tulloch rule. On appeal, the Court of Appeals for the District of Columbia Circuit ought to reverse the district court and reinstate the Tulloch rule. Part I of this article will provide a brief introduction to section 404 of the Clean Water Act. Part II will examine the Tulloch rule. Part III will examine the district court's opinion. Finally, part IV will demonstrate that section 404(a) is ambiguous re- garding whether incidental fallback from dredging may in some circumstances constitute disposal under the statute and, accord- ingly, that under the Chevron doctrine the district court erred in failing to defer to the agencies' Tulloch rule.
I. SECTION 404 REQUIRES PERMITS FOR DISCHARGING DREDGE OR FILL The Rivers and Harbors Appropriations Act of 1899' requires a permit for dredging or filling activities that may obstruct navi- gation in navigable waters8 suitable for commercial transportation, and applies to waters or tidal wetlands located below mean high water.? Section 10 of the Rivers and Harbors Appropriations Act of 1899 defines the Corps' jurisdiction over excavation activities."° In 1972, Congress enacted the Federal Water Pollution Con- trol Act (Clean Water Act)." Section 404 of the Act seeks to pro-
6. Id. at 842-43. 7. See 33 U.S.C. § 401, 403, 407 (1986). 8. See 33 C.F.R. § 329.4 (1998) which defines navigable waters as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or for- eign commerce." 9. See 33 U.S.C. §§ 401, 403, 407; 33 C.F.R. § 329.4 (1997); Bayou des Families Dev. Corp. v. United States Corps of Eng'rs, 541 F. Supp. 1025, 1034 (E.D. La. 1982); See generally Carol E. Dinkins et al., Regulatory Obstacles to Development and Redevelopment: Wetlands and Other Essential Issues, in THE IMPACT OF ENviRONMENTAL LAw ON REAL ESTATE AND OTHER COMMERCIAL TRANsACTIONS, SB18 ALI-ABA 731, 734 (Oct. 10, 1996). 10. 33 U.S.C. § 403 (1997) (Stating that the Corps must authorize excavation or filling of navigable waters). 11. 33 U.S.C. §§ 1251-1387 (1997). 1i997] AMC v. ARMY CORPS OF ENGINEERS tect wetlands by requiring any person who "discharge[s] dredge or fill material into the navigable waters at specified disposal sites" to obtain a permit from the Corps.'2 The term "pollutant" encompasses "dredged spoil."'" Section 502(12) defines a "dis- charge" as "any addition of any pollutant to navigable waters from any point source."" While the Corps has primary responsi- bility for issuing permits, 5 subject to the EPA's veto authori- ty,'6 both agencies have authority to issue binding regulations and guidance documents 7 to regulate the disposal of dredged ma- terials in waters.1
II. THE TULLOCH RULE The Corps defines "discharge of dredged material" as the addi- tion of material excavated or dredged from waters of the United States, including runoff from a dredged material disposal area. 8 From 1972 until 1993, the agencies did not regulate un- der section 404 incidental fallback or movement from dredging or excavation of materials from navigable waters, including, landclearing, ditching, or channelization, unless the agency could establish substantial environmental impacts or the relocation of the dredged materials. 9 In North Carolina Wildlife Federation v. Tulloch," environ- mental organizations sued the Corps, the EPA and two landown- ers alleging that landclearing and excavation activities involving 700 acres of wetlands caused significant environmental damage and, therefore, should be subject to regulation under section 404.21 In 1992, the agencies settled the case by agreeing to
12. Federal Water Pollution Control Act Amendments of 1972 § 404(a), 33 U.S.C. § 1344(a) (1997). 13. Id. § 1362(6). 14. Id. § 1362(12). 15. Id. § 1344(a). 16. Id. § 1344(c). 17. Id. § 1344(b)(1). 18. 33 C.F.R. §§ 323.2(2), 323.2(c), 323.2(d) (1997); see also Dinkins, supra note 9, at 735. 19. See 51 Fed. Reg. 41206, 41210 (1986); American Mining Congress v. Army Corps of Eng'rs, 951 F. Supp. 267, 269 (D.D.C. 1997); United States v. Lambert, 589 F. Supp. 366 (M.D. Fla. 1984); Dinkins, supra note 9, at 735-36. 20. Civil No. C90-713-CIV-5-BO (E.D.N.C. filed Nov. 30, 1990). The case is noted in Current Developments, 24 Env't Rep. (BNA) 1681 (Jan. 21, 1994). 21. See 58 Fed. Reg. at 45016 (noting the Tulloch case involved excavation causing extensive destruction of hundreds of acres of wetlands). 54 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 propose a rule regulating the addition or redeposit of dredged materials, including excavated materials, into wetlands.22 After providing a sixty-day public comment period, on August 25, 1993, the agencies issued a final rule that essentially incorporat- ed the terms of the settlement agreement." The Tulloch rule redefines the term "discharge of dredged material" to include small-volume incidental fallback unless the party conducting the activity can establish that it will not harm or degrade wetlands or waters of the United States.24 Incidental fallback includes any soil that is disturbed when a shovel exca- vates dirt, or any back-spill that falls from a shovel or bucket and falls back into the same place from which it was removed.25 Incidental fallback does not include soil moved or deposited away from the original site. 6 Under section 404, the agencies have from the beginning regulated so-called "sidecasting," which in- volves depositing removed soil alongside a ditch, and careless disposal practices involving significant discharges into waters.27 The Tulloch rule significantly increased the scope of the agencies' section 404 jurisdiction because any mechanized landclearing or dredging activities will result in some incidental fallback, and, accordingly, the rule brings mechanized landclearing, ditching, channelization, or other excavation opera- tions within the section 404 permit program. Previously, the agencies only regulated incidental fallback if it caused substan-
22. 58 Fed. Reg. 45008 (1993). 23. 58 Fed. Reg. 45008, 45009-13, 45035-38 (1993) (codified at various C.F.R. sections, including 33 C.F.R. Pts. 323 & 328). 24. See 33 C.F.R. § 323.2(d)(1)(iii), (d)(3)(i), (d)(4) (1998) (Corps regulations); 40 C.F.R. § 232.2(1)(iii), 232.2(3)(i), (4) (1998) (EPA regulations); 58 Fed. Reg. at 45019- 21 (1993) (defining "destroy" and "degrade," 45035-38); see also American Mining Con- gress, 951 F. Supp. at 270 & n.3; Dinkins, supra note 9, at 735. 25. 33 C.F.R. § 323.2(d)(1)(iii) (1998) (Corps regulations); 40 C.F.R. § 232.2(1)(iii) (1998) (EPA regulations); 58 Fed. Reg. at 45009-13 (1993); see also American Mining Congress, 951 F. Supp. at 270 & n.4. 26. 33 C.F.R. § 323.2(d)(1)(iii) (1998) (Corps regulations); 40 C.F.R. § 232.2(1)(iii) (1998) (EPA regulations); 58 Fed. Reg. at 45009-13 (1993); see also American Mining Congress, 951 F. Supp. at 270 & n.4. 27. 33 C.F.R. § 323.2(d)(1)(iii) (1998) (Corps regulations); 40 C.F.R. § 232.2(1)(iii) (1998) (EPA regulations); 58 Fed. Reg. at 45014 (1993); see also American Mining Congress, 951 F. Supp. at 270 & n.4; Dinkins, supra note 9, at 736. 28. See 33 C.F.R. § 323.2(d)(1)(iii) (1998) (Corps regulations); 40 C.F.R. § 232.2(1)(iii) (1998) (EPA regulations); 58 Fed. Reg. at 45017-19 (1993) (describing mechanized landclearing, ditching, channelization and other excavation activities); see also American Mining Congress, 951 F. Supp. at 270 & n.3. 1997] AMC v. ARMY CORPS OF ENGINEERS tial environmental impacts, and the presumption was against regulation of incidental fallback even if large discharges were involved, unless the agencies could establish environmental ef- fects.29 The Tulloch rule creates a rebuttable presumption that shifts the burden to the regulated party to demonstrate, before beginning a project, that the federal government does not have jurisdiction over the activity. ° To rebut this presumption, the regulated party must show that the activity will have de minimis environmental impacts and not harm or degrade wetlands or waters of the United States. 1 The agencies announced in the Tulloch rule that they would apply a very low threshold for what constitutes an environmental effect and, accordingly, there is a significant burden on regulated parties to show that their activi- ties will cause no harm." In determining what constitutes an environmental impact that may harm or degrade waters of the United States, the agencies not only examine the direct environ- mental impacts of the incidental fallback, but also claim the authority to regulate indirect or secondary environmental effects associated with dredging, mechanized landclearing, ditching, channelization or excavation activities as long as there is a dis- charge of dredged or fill material, including incidental fallback." Because a discharge to navigable waters of the United States is "an absolute prerequisite" to the exercise of government au- thority under section 404, the Tulloch rule does not apply to mere removal activities.34 Furthermore, the rule excludes de minimis soil movement incidental to any activity that does not or
29. 33 C.F.R. § 323.2(d)(1)(iii) (1998) (Corps regulations); 40 C.F.R. § 232.2(l)(iii) (1998) (EPA regulations); 58 Fed. Reg. at 45009-13, 45035-38 (1993); see also Ameri- can Mining Congress, 951 F. Supp. at 270 & n.3. 30. See 33 C.F.R. §§ 323.2(c)(2), 323.2(d)(3)(i) (1998) (Corps regulations); 40 C.F.R. 99 232.2(2), 232.2(3)(i) (1998) (EPA regulations); 58 Fed. Reg. at 45021-22 (1993) (creating presumption that dredging and excavation activities destroy or degrade); see also American Mining Congress, 951 F. Supp. at 270 & n.3. 31. See 33 C.F.R. §§ 323.2(d)(1)(iii), (d)(3)(i), (d)(4) (1998) (Corps regulations); 40 C.F.R. §§ 232.2(1)(iii), 232.2(3)(i), (4) (1998) (EPA regulations); 58 Fed. Reg. at 45019- 22, 45035-38 (1993) (defining "destroy" and "degrade" and "de minimis" and creating presumption that dredging and excavation activities destroy or degrade); American Mining Congress, 951 F. Supp. at 270 & n.3; Dinkins, supra note 9, at 735. 32. See 58 Fed. Reg. at 45020-21 (1993). 33. See 58 Fed. Reg. at 45011-13 (1993); see supra note 28 and accompanying text. 34. 58 Fed. Reg. at 45011 (1993). 56 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 would not have the effect of destroying or degrading wetlands or waters, which means that the activity alters an area so it would no longer be a water of the United States. 5 Conveniently, the agencies exempted incidental movement of dredged material resulting from dredging designed to improve navigation in navi- gable waters, an exemption that applies as a practical matter only to the Corps."6
III. THE DISTRICT COURTS DECISION A. The Parties'Arguments The American Mining Congress and other development inter- ests filed suit challenging the Tulloch rule as exceeding the agencies' authority under section 404 of the Act because Con- gress never intended for incidental fallback to be within the statute's jurisdiction. 7 They contended that the Tulloch rule used the concept of "incidental fallback" as a justification for expanding the agencies' jurisdiction to regulate excavating and landclearing activities that are not otherwise within the scope of the section 404 permit program.3" By contrast, the agencies maintained that they were autho- rized to regulate incidental fallback, and that Chevron required the district court to defer to their expertise in interpreting the Act.39 They argued that incidental falback was always regulat- ed by them, but that they had created a narrow exception from the permit requirement for de minimis discharges. 40 The agen- cies contended that the Tulloch rule merely closes a loophole in the Act by tightening a de minimis exception within their discre-
35. See 33 C.F.R. § 323.2(d)(1)(iii), (d)(3)(i), (d)(4) (1998) (Corps regulations); 40 C.F.R. §§ 232.2(l)(iii), 232.2(e)(3)(i), (4) (1998) (EPA regulations); 58 Fed. Reg. at 45019-21, 45026, 45035-38 (1993) (defining "destroy" and "degrade" and excluding incidental soil movement during "normal" dredging operations); see also American Mining Congress, 951 F. Supp. at 270 & n.3; Dinkins, supra note 9, at 735. 36. See American Mining Congress, 951 F. Supp. at 270 n.3; 58 Fed. Reg. at 45009-13, 45035-38 (1993). 37. See American Mining Congress, 951 F. Supp. at 268-71. 38. See id. at 271. 39. Id. 40. See 33 C.F.R. § 323.2(d)(1)(iii), (d)(3)(i), (d)(4) (1998) (Corps regulations); 40 C.F.R. §8 232.2(1)(iii), 232.2(3)(i), (4) (1998) (EPA regulations); 58 Fed. Reg. at 45019- 21, 45035-38 (1993) (defining "destroy" and "degrade" and "de minimis"); see also American Mining Congress, 951 F. Supp. at 270 & n.3; Dinkins, supra note 9, at 735. 1997] AMC v. ARMY CORPS OF ENGINEERS
tion, and that the rule effectuates the statute's goals in protect- ing wetlands from degradation.4
B. The District Court's Decision 1. Incidental Fallback Is Not the "Addition of a Pollutant." The district court concluded that incidental fallback is not the "addition of a pollutant" to navigable waters and, therefore, does not constitute a "discharge" within the agencies' section 404(a) authority. 42 Because section 404(a) only authorizes the agencies to regulate "discharge[s]" of "dredge or fill material,' 43 it is cru- cial to determine whether incidental fallback constitutes a dis- charge. The American Mining Congress and other plaintiffs argued that by defining a "discharge" to require the "addition" of a "pol- lutant," Congress intended to regulate only the introduction or placement of dredged material into water, and not the incidental fallback that accompanies the removal of material from naviga- ble waters. 44 Instead, section 10 of the Rivers and Harbors Ap- propriations Act of 1899 defines the Corps' jurisdiction over exca- vation activities. 45 The defendant agencies argued that the term "addition of pollutants" is ambiguous and that the district court should defer to its interpretation under the Chevron doctrine.46 While the district court properly concluded that Congress did not want the agencies to regulate de minimis amounts of incidental fallback, the court should have given the agencies more latitude in deter- mining when incidental fallback may constitute an "addition of
41. Compare 33 C.F.R. §§ 323.2(d)(1)(iii), (d)(4) (1998) (Corps regulations) and 40 C.F.R. §§ 232.2(l)(iii), 232.2(4) (1998) (EPA regulations) and 58 Fed. Reg. at 45019- 21, 45035-38 (1993) (defining "destroy" and "degrade" and "de minimis" very broadly to protect the environment from effects of dredging and excavation activities) with American Mining Congress, 951 F. Supp. at 271 (criticizing the agencies' broad defini- tion of degradation and the agencies' rule placing the burden on the regulated party to prove its activities are de minimis). 42. American Mining Congress, 951 F. Supp. at 272-78. 43. See Federal Water Pollution Control Act Amendments of 1972 § 404(a), 33 U.S.C. § 1344(a) (1997). 44. American Mining Congress, 951 F. Supp. at 272. 45. See 33 U.S.C. § 403 (1997) (Corps must authorize excavation or filling of navigable waters). 46. American Mining Congress, 951 F. Supp. at 272. 58 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 pollutants" and "discharge" under the Act. a. Under section 404(a), excavation or dredging activities do not constitute a "discharge." The district court correctly concluded that under section 404(a) excavation or dredging activities do not constitute a "discharge," but erroneously inferred as a result that incidental fallback may never constitute an "addition of pollutant" and "discharge." Be- cause section 10 of the Rivers and Appropriations Act of 1899 explicitly defines the Corps' jurisdiction over excavation activi- ties47 and section 404 does not expressly refer to such matters, the district court argued that Congress intended to regulate removal activities only under the former statute and the disposal of material only undei the latter.48 Even if section 404(a)'s juris- diction does not reach removal activities, that does not resolve whether incidental fallback constitutes an "addition of pollutant" or "discharge" under the Act. b. Under the Act, the term "discharge" does not include incidental fallback. While acknowledging that neither the Act's 1972 or 1977 legis- lative history specifically refers to "incidental fallback," the dis- trict court argued that Congress had a very definite view regard- ing the meaning of the term "discharge" under section 404(a) and that its intent was that incidental fallback does not constitute disposal under the statute.49 According to the district court, Congress intended the term "discharge of dredged material to mean open water disposal of material removed during the dig- ging or deepening of navigable waterways," and that this pur- pose "excludes the small-volume incidental discharge that accom- panies excavation and landclearing activities."5 ° In 1977, Sena- tor Muskie, a leading force in writing the Act, stated that the statute was not intended to regulate "de minimis" activities.51
47. See 33 U.S.C. § 403 (1997) (Corps must authorize excavation or filling of navigable waters). 48. American Mining Congress, 951 F. Supp. at 272-73. 49. Id. at 273-74. 50. Id. at 273. 51. Id. (quoting Senate Report on section 1952, 95th Cong., reprinted in 1977 Legis. Hist. at 645). 1997] AMC v. ARMY CORPS OF ENGINEERS
Furthermore, in 1977, Senator Domenici indicated that Congress did not intend the Act to regulate someone who merely "mov[es] a little bit of earth .. . ."" Because landclearing or dredging activities routinely result in some incidental fallback, the district court maintained that the remarks of Senators Muskie and Domenici suggest that Congress did not intend the statute to reach such small and routine movements of soil as disposal ac- tivities." Neither Senator Muskie nor Domenici's statements, however, clearly address whether the agencies may regulate incidental fallback that causes environmental degradation. The district court also argued that Congress intended that the term "disposal" refers to the movement of dredged material from one place to another, and that incidental fallback is not an "addi- tion" of soil because "some material simply falls back in the same general location from which most of it was removed."54 In sup- port, the district court quoted Senator Ellender's statement dur- ing the 1972 debates on the Act: "The disposal of dredged materi- al does not involve the introduction of new pollutants; it merely moves the material from one location to another."5 Senator Ellender's remarks, however, could be interpreted to provide an even narrower definition of disposal than the district court's, that dredge material is never the addition of a pollutant, but merely involves moving it from one place to another. Because Senator Ellender did not specifically address the issue of inciden- tal fallback and his statement represents only his views rather than that of an entire committee or the Senate as a whole, his remarks cannot be considered conclusive. c. Congress implicitly ratified the agencies' earlier interpretation that excluded incidental fallback from section 404. The district court also contended that Congress implicitly ratified "through its lack of amendment" the agencies' and courts' earlier interpretation that excluded incidental fallback
52. Id. at 273 (quoting Senate Report on section 1952, 95th Cong., reprinted in 1977 Legis. Hist. at 924). 53. Id. at 273. 54. Id. at 273-74. 55. See id. at 273 (quoting Senate Debate on section 2770, reprinted in 1972 Legis. Hist. at 1386). 60 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 from section 404.56 The failure of Congress to amend a statute, however, is of only very limited value in determining the intent of the original enacting Congress in 1972. Furthermore, the failure of Congress to amend a statute can result from a number of causes other than agreement with an agencies' interpretation, including internal congressional divisions or lack of interest.57 Because congressional inaction may stem from many different reasons, courts only apply the principle of de facto ratification in those rare cases where there is clear evidence that Congress knew about an agency interpretation and relied on that interpre- tation as a primary reason not to take legislative action. There is no clear evidence that Congress explicitly relied on the agencies' pre-Tulloch interpretation of section 404.58 The court's related argument that Congress implicitly ratified the agencies' prior interpretation that dredging and incidental fallback are not disposal activities because Congress amended other subsections of 404 several times without disturbing the prior interpretation of subsection 404(a) regarding incidental fallback," suffers from the same flaw. There is no evidence cited by the plaintiffs or the district court that Congress explicitly considered the incidental fallback issue or extensively debated it when it periodically amended the Act. Similarly, the fact that there have been several proposals in recent years to expand the scope of section 404 and that Con- gress has not enacted any of them ° does not prove the intent of the 1972 statute. Legislative failure often results from complex causes involving the building of coalitions, legislative inertia, overlapping environmental jurisdiction among committees, espe- cially in the House of Representatives, and lobbying by interest groups.6' Furthermore, members of Congress who sought to
56. Id. at 274-75. 57. See National Petroleum Refiners Assoc. v. F.T.C., 482 F.2d 672, 695-96 (D.C. Cir. 1973) (observing that there are many causes for congressional inaction), cert. denied, 415 U.S. 951 (1974); see generally Bradford C. Mank, The EPA's Regulatory Reform Initiatives: The Need for Legislative Action, 24 EcoLOy L.Q. (forthcoming 1998) (addressing reasons for congressional gridlock and fragmentation in addressing envi- ronmental legislation). 58. See National Petroleum Refiners, 482 F.2d at 695-97. 59. See Public Citizen v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993) ("Congress is presumed to be aware of an administrative or judicial interpretation when it re-en- acts a statute without change.") (citation omitted). 60. American Mining Congress, 951 F. Supp. at 276. 61. See National Petroleum Refiners Assoc. v. F.T.C., 482 F.2d 672, 695-96 (D.C. 1997] AMC v. ARMY CORPS OF ENGINEERS broaden section 404 may have been attempting to clarify what they consider an ambiguous statute or to avoid litigation rather than repealing a restrictive statute that clearly did not allow the agencies to regulate incidental fallback from excavation." Anal- ogously, the fact that a White House press release announcing the Tulloch rule stated that Congress should amend the Act63 does not prove that the Act clearly forbids that rule's interpreta- tion, but it may merely suggest that section 404 is ambiguous regarding whether incidental fallback may be regulated or that officials were seeking to avoid potentially lengthy litigation. The district court drew far too many inferences from mere legislative inaction or proposals when there were many other interpreta- tions, including the possibility that leaders in Congress or the White House thought that section 404 was ambiguous regarding the regulation of incidental fallback.
2. Excavation Sites Are Not "Specified Disposal Sites" According to the district court, "Even if the term 'addition of a pollutant' were broad enough to cover incidental fallback, the court would still hold that the Tulloch rule departs from Congress' intent that the material must be discharged at a 'spec- ified disposal site'."64 The court argued that the language "speci- fied disposal site" indicated that the "site must have been affir- matively selected as a disposal site by the agencies," and "also conveys Congress' understanding that 'discharges' would result in the relocation of material from one site to another. '65 The court contended, "The Tulloch rule makes the term 'specified disposal site' superfluous; under the rule, all excavation sites are considered 'specified disposal sites'."66 As a result, according to Judge Harris, the Tulloch rule misreads the statute by treating
Cir. 1973) (observing that there are many causes for congressional inaction), cert. denied, 415 U.S. 951 (1974); see generally Mank, supra note 57. 62. See National Petroleum Refiners, 482 F.2d at 696 (observing that Congress may amend a statute "out of uncertainty, understandable caution, and a desire to avoid litigation"). 63. See American Mining Congress, 951 F. Supp. at 276 & n.20 (citing White House Office on Environmental Policy, Protecting America's Wetlands: A Fair, Flexi- ble, and Effective Approach 23 (Aug. 24,. 1993)). 64. American Mining Congress, 951 F. Supp. at 278. 65. Id. 66. Id. 62 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 excavation sites as disposal sites when the plain language of the statute means that "specified disposal sites" are "the place[s] where the dredged material is disposed of" rather than where it is excavated. 7 In addition, the court invoked the statutory can- on noscitur a sociis,6" to maintain that its interpretation of "dis- posal" as referring to the movement of soil was reinforced by Congress' use of the term "specified disposal sites" in section 404(a)9.69 IV. UNDER CHEVRON, THE DISTRICT COURT SHOULD HAVE DEFERRED TO THE TULLOCH RULE A. The Chevron Doctrine Under Chevron, a court first examines "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously ex- pressed intent of Congress."7 If a statute is ambiguous or con- tains a gap, however, the court in the second level of analysis must defer to the agency's interpretation if it is "permissible," or in other words, if it is reasonable. 1 If a statute contains a "gap" or is ambiguous, the Chevron doctrine creates a presumption that Congress implicitly delegated the resolution of this issue to the agencies."
67. Id. 68. "It is known from its associates." Under the canon of noscitur a sociis, the meaning of an uncertain or questionable word is gathered from the words surround- ing it. See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995) (resolving statutory question with noscitur a sociis); Babbitt v. Sweet Home Chapter of Commu- nities for a Great Oregon, 515 U.S. 687, 702 (1995) (discussing application of the doctrine to a regulation promulgated under the Endangered Species Act). 69. American Mining Congress, 951 F. Supp. at 273-74. 70. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). 71. See id. at 840, 843-45; Bradford C. Mank, Is a Textualist Approach to Statu- tory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REv. 1231, 1242 (1996); Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ONREo. 283, 284 (1986). 72. See Chevron, 467 U.S. at 843-44 (finding that Congress sometimes implicitly delegates to the agency the authority to fill in the gaps in the statute); Mank, supra note 71, at 1244 (explaining that "Chevron appeared to presume that whenever Con- gress delegated authority to administer a statute, it also delegated authority to the agency to fill in any gaps present in the statute, rather than leaving that role to the judiciary"); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE 1997] AMC v. ARMY CORPS OF ENGINEERS
Chevron does not require judicial acquiescence to all agency interpretations. A court makes an independent judgment in deciding whether the statute has directly spoken to a question, and does not defer to the agency in determining whether the legislation is ambiguous.73 In making its independent assess- ment of a statute's meaning and congressional intent, a court may "employ[] traditional tools of statutory construction,"74 and may examine particular statutory language, the language and structure of the statute as a whole, and, where appropriate, legislative history.75 Nevertheless, the Chevron principle does not require an agency's interpretation to be the most likely or popular, but merely a permissible interpretation of an ambiguous statute.76 Indeed, Justice Scalia has argued that "Chevron becomes virtual- ly meaningless, it seems to me, if ambiguity exists only when the arguments for and against various interpretations are in abso- lute equipose, 77 and that judges must defer to an agency inter- pretation "when two or more reasonable, though not equally valid, interpretations exist. '7 Judge Harris failed to recognize that the agencies' interpretation that incidental fallback can be a form of disposal under section 404 was a plausible interpretation of an ambiguous statutory provision, even if his own interpreta- tion may be a better reading of the Act.
B. The District Court's Argument for Not Following Chevron The district court rebuffed all of the agencies' arguments about the importance of deferring to agency expertise under the Chev- ron doctrine because the court was firmly convinced that Con- gress did not intend for the agencies to regulate under section
L.J. 969, 979 (1992) (stating that "Chevron in effect adopted a fiction that assimilat- ed all cases involving statutory ambiguities or gaps into the express delegation or 'legislative rule' model"); Antonin Scalia, Judicial Deference to Administrative Interpre- tations of Law, 1989 DuKE L.J. 511, 516-17 (suggesting that Chevron presumes that ambiguities entail delegation of interpretative power). 73. See Cajun Elec. Power Coop. v. FERC, 924 F.2d 1132, 1136 (D.C. Cir. 1991). 74. Chevron, 467 U.S. at 843 n.9. 75. See Chemical Mfrs. Ass'n. v. United States Envtl. Protection Agency, 919 F.2d 158, 162 (D.C. Cir. 1990). 76. See Chevron, 467 U.S. 837, 842-43 (1984). 77. See Scalia, supra note 70, at 520. 78. Scalia, supra note 70, at 521. 64 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
404 either dredging or the incidental fallback that inevitably accompanies such operations, but intended that provision to govern only the disposal of dredged material in another loca- tion.79 The district court cited both prior agency pronounce- ments and caselaw to demonstrate that both excavation activi- ties and incidental fallback from such operations were beyond the scope of the statute." According to the district court, only one prior case had considered incidental fallback to be a regu- lated discharge, Reid v. Marsh,"' a 1984 decision by a federal district court in Northern Ohio. The Reid court, however, held that the Corps was limited to considering the effects of the dis- charge itself, and that the Corps could not address the overall effects of the entire dredging activity. 2 Because incidental fallback is a normal byproduct of dredging and Congress did not intend to regulate removal activities under section 404, the dis- trict court concluded that Congress could not have intended to regulate incidental fallback pursuant to that statutory provi- sion." In addition, Judge Harris argued that dredging or removal activities are outside the Act's jurisdiction because such opera- tions are exclusively within the domain of section 10 of the 1899 Rivers and Harbors Appropriations Act. 4 Even the Reid court acknowledged that dredging in itself is regulated by section 10, and is not within the scope of section 404 unless there is a dis- charge of fill or dredged material that causes direct environmen- tal effects. 8 While the act of dredging or excavation in itself is probably exclusively within the reach of the 1899 statute, howev- er, that does not directly answer whether incidental fallback
79. American Mining Congress v. Army Corps of Eng'rs, 951 F. Supp. 267, 274 (D.D.C. 1997). 80. Id. (citing Salt Pond Assocs. v. United States Army Corps of Eng'rs, 815 F. Supp. 766, 778, 782 (D. Del. 1993); United States v. Lambert, 18 Env't Rep. Cas. (BNA) 1294, aff'd, 695 F.2d 535 (11th Cir. 1983); 51 Fed. Reg. at 41210. 81. Reid v. Marsh, 20 Env't Rep. Cas. (BNA) 1337, 1342 (N.D. Ohio 1984) (hold- ing that even de minimis incidental fallback from dredging activities may constitute disposal under section 404 of the Clean Water Act). 82. See id.; 58 Fed. Reg. at 45012 (arguing Reid improperly limited Corps juris- diction to environmental effects of discharge and that Corps actually has authority to regulate indirect effects associated with dredging). 83. American Mining Congress, 951 F. Supp. at 274-75. 84. See id. at 272-73; 33 U.S.C. § 403 (Corps must authorize excavation or filling of navigable waters). 85. See Reid, 20 Env't Rep. Cas. (BNA) at 1342. 1997] AMC v. ARMY CORPS OF ENGINEERS from such activities is outside section 404. In addition, the agen- cies also claimed the authority to regulate indirect or secondary environmental degradation associated with dredging, mechanized landclearing, ditching, channelization or excavation activities as long as there is a discharge of dredged or fill material, including incidental fallback. 86 Furthermore, the district court contended that the Tulloch rule impermissibly focuses on the "environmental effects of [landclearing or excavation] activit[ies] resulting in the dis- charge, rather than on the discharge itself. 87 The district court is absolutely correct that a discharge is a prerequisite for section 404 jurisdiction and that the agencies simply do not have the authority under the Act to regulate environmental impacts in the absence of a discharge but, again, this point does not resolve whether incidental fallback can ever be a form of discharge.88 The court also argued that the agencies' reinterpretation was entitled to less weight because of its inconsistency with their prior interpretations. 9 The court acknowledged that "[algencies are, of course, permitted to revise their interpretations" of an ambiguous statute, but maintained that the statute was not ambiguous.90 The agencies had contended that their increased experience with the harmful environmental effects of excavation and landclearing activities provided a "reasoned analysis for the change."91 The district court rejected this argument, however, because "it is not apparent to the Court how this experience would alter the agencies' interpretation of congressional in- tent. 92
86. See 58 Fed. Reg. at 45011-13; see also supra part III.A. 87. American Mining Congress, 951 F. Supp. at 275 n.18. 88. Id. 89. Id. at 274 n.13 (citing Immigration and Naturalization Service v. Cardoza- Fonseca, 480 U.S. 421, 446 n.30 (1987)). 90. Id. (citing Rust v. Sullivan, 500 U.S. 173, 184-88 (1991)). 91. Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 690 (D.C. Cir. 1991) (holding that agency may change policy if it provides reasoned analysis for change); see 58 Fed. Reg. at 45015 (stating agencies' belief that change in agency policy in Tulloch rule "is warranted in light of our increased understanding of the severe environmental effects often associated with the activities covered by the rule" and is based on "reasoned analysis"); see also Motor Vehicle Mfrs. Ass'n. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983) (observing that change in agency policy must be based on "reasoned analysis"). 92. American Mining Congress, 951 F. Supp. at 274 n.13. 66 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
C. Why Chevron Is Applicable Section 404 is ambiguous regarding whether incidental fallback from dredging, landclearing or excavation operations constitutes "disposal" under section 404, and, accordingly, the district court erred in failing to defer to the agencies' plausible interpretation of the Act. While the available legislative history suggests that Congress in 1972 or 1977 did not intend to regu- late de minimis incidental fallback from dredging or excavation activities that do not cause environmental degradation, 9 Con- gress did not clearly address the possibility that incidental fallback might be significant in volume or environmental effects. Accordingly, there is an ambiguity or gap in the statute regard- ing whether the agencies may regulate incidental fallback that causes environmental degradation. Because Congress did not specifically address whether incidental fallback is a form of "dis- posal" or the "addition of a pollutant," the Chevron doctrine cre- ates a presumption that Congress implicitly delegated the resolu- tion of this issue to the agencies. 4 Even if the agencies' interpretation is not the most likely one, the Tulloch rule is a permissible interpretation of an ambiguous statute. While the agencies in 1986 and many prior judicial deci- sions had rejected that interpretation, 95 the Reid decision in 1984 had read the term "discharge" to include the direct environ- mental impacts of even de minimis incidental fallback.9" In ad- dition, the agencies have plausibly suggested that Congress did not address whether the agencies should have the authority to regulate indirect or secondary environmental degradation associ- ated with dredging, mechanized landclearing, ditching, channel- ization or excavation activities as long as there is a discharge of dredged or fill material, including incidental fallback and, ac- cordingly, have suggested that their interpretation to include such secondary effects is entitled to deference under the Chevron doctrine.97 Because section 404 is ambiguous regarding whether incidental fallback causing environmental degradation consti-
93. See supra Part III.B.1. 94. See Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 843-44 (1984). 95. See American Mining Congress, 951 F. Supp. at 275 n.17. 96. Reid v. Marsh, 20 Env't Rep. Cas. (BNA) 1337, 1342 (N.D. Ohio 1984). 97. See 58 Fed. Reg. at 45011-13. 1997] AMC v. ARMY CORPS OF ENGINEERS tutes the "addition of a pollutant" and "disposal," then, contrary to the district court's assertion, the agencies' experience that incidental fallback has important environmental effects consti- tutes reasonable grounds for changing their interpretation of the statute and issuing the Tulloch rule.9" Furthermore, the Tulloch rule serves the Act's broad purposes, which are to "restore and maintain the chemical, physical and biological integrity of the Nation's waters."99 While the district court properly observed that such broad purposes are relevant only if a statute is ambiguous and does not demonstrate that Congress intended to delegate "unrestricted authority" to an agency, °0 the Supreme Court has sometimes given an agency the benefit of the doubt in deciding whether a complex regulato- ry statute is ambiguous if its interpretation advances a statute's broad purposes."' While the district court is probably right that a distinction ought to be made between an excavation site and a "specified disposal site," the court again fails to consider the possibility that the statute is ambiguous when incidental fallback causes environmental degradation at the excavation site. If that is so, then the Tulloch rule appropriately recognizes that excavation sites also can be, under some circumstances, disposal sites as well.
98. Compare Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 690 (D.C. Cir. 1991) (observing that agency experience is grounds for altering its inter- pretation of a statute) and 58 Fed. Reg. at 45015 (stating agencies' belief that change in agency policy in Tulloch rule "is warranted in light of our increased un- derstanding of the severe environmental effects often associated with the activities covered by the rule" and is based on "reasoned analysis") with American Mining Con- gress, 951 F. Supp. at 274 n.13 (arguing that agency experience is irrelevant if statute's original intent contradicts agency interpretation). 99. See 33 U.S.C. § 1251(a). 100. American Mining Congress, 951 F. Supp. at 277. 101. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703-08 (1995) (invoking Chevron deference principle and statute's broad purposes as grounds for deferring to Secretary of Interior's interpretation of term "harm" in Endangered Species Act); Mank, supra note 71, at 1265, 1278-90 (arguing that courts should give considerable deference to agency interpretations of complex regulatory statutes). 68 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
V. CONCLUSION While Chevron was supposed to increase judicial deference to agency interpretations, some empirical evidence suggests that courts are no more, or even less, likely to defer to such interpre- tations than before the Supreme Court unanimously decided that case. 10 2 Courts too frequently are unwilling to defer to an agen- cy interpretation that a judge believes is less plausible than her own explication of statutory meaning.' There are significant costs when a court fails in appropriate circumstances to defer to an agency's interpretation because: (1) agencies are closer to the political branches than courts, and hence more likely to provide an interpretation consistent with popular values; (2) agencies normally possess greater scientific and technical expertise than courts; (3) agencies can provide greater flexibility by changing a statutory interpretation when experience demonstrates the need for a change; and (4) agencies can provide greater uniformity than lower courts by providing a consistent interpretation that does not vary from circuit to circuit.0 4 For all these reasons, agencies are often more capable of interpreting complex "intran- sitive" regulatory statutes that have no clear meaning than
102. See Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, 67 LAw & CONTEMP. PROBS. 65, 103 (1994) (concluding that affirmance rates in federal appellate courts dropped from mid-70% range in 1983-1987 to mid-60% range in 1988-1990); Mank, supra note 71, at 1245-47 (citing sources); Merrill, supra note 72, at 982 (explaining that during the late 1980s and early 1990s, Supreme Court ap- plied Chevron in only one-third of applicable cases); Richard J. Pierce, The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 750-52, 762-63 & passim (1995) (explain- ing that during 1990-1994, the Supreme Court frequently invoked the "plain mean- ing" principle to avoid invoking Chevron deference); Peter H. Shuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duvi L.J. 984, 1038 (finding that although Chevron initially increased -deference by federal appellate courts, most of this effect had weakened by 1988). 103. See generally Mank, supra note 71, at 1278-92 (arguing that textualist judges frequently ignore the spirit of Chevron by arguing that statute's text has a plain meaning); Pierce, supra note 102, at 750-52. 104. See generally Mank, supra note 71, at 1278-90 (arguing that agencies provide greater political sensitivity, expertise and flexibility than courts); Peter Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 CoLum. L. REv. 1093 (1987) (con- tending that judicial deference to agency interpretations enhances regulatory unifor- mity because the Supreme Court can review so few cases, and, therefore, agency interpretations provide more uniformity than potentially conflicting lower court deci- sions). 1997] AMC v. ARMY CORPS OF ENGINEERS generalist Article III judges.° 5 Judge Harris makes a number of reasonable arguments in contending that Congress did not intend section 404 to regulate dredging activities or the inevitable incidental fallback from such operations. He failed to demonstrate, however, that Congress in 1972, 1977 or any time since, specifically addressed the issue of incidental fallback. Accordingly, there is a gap, silence or ambi- guity in what Congress' intent was regarding this issue and Chevron compels judicial deference to the agencies' plausible interpretation of the statute. In addition, Judge Harris' decision would undermine the broad purposes of the Act by preventing the agencies from regulating incidental fallback that causes environmental degradation. The Tulloch rule appropriately exempted incidental fallback that had only de minimis environmental impact, although it placed a significant burden on regulated parties to demonstrate that their activities would not cause environmental degradation.0 6 While reasonable people might disagree with whether the burden should be on the agencies or on the regulated to establish that their dredging operations will cause only de minimis effects, courts should defer to the agencies' experience regarding where 10 7 to place that burden. Judge Harris would have required the agencies to rescind the Tulloch rule on a nationwide basis.' 8 Fortunately, the Court of Appeals has stayed Judge Harris' decision pending the outcome
105. See Mank, supra note 71, at 1280-81; see also Edward L. Rubin, Modern Statutes, Loose Canons, and the Limits of Practical Reason: A Response to Farber and Ross, 45 VAND. L. REv. 579, 580-87 (1992) (explaining that most federal statutes are addressed to specialized audiences). 106. See 33 C.F.R. §§ 323.2(d)(1)(iii), (d)(4) (Corps regulations); 40 C.F.R. §§ 232.2(1)(iii), 232.2(4) (EPA regulations); 58 Fed. Reg. at 45019-21, 45035-38 (defin- ing "destroy" and "degrade" and "de minimis"); American Mining Congress v. Army Corps of Eng'rs, 951 F. Supp. 267, 270 & n.3 (D.D.C. 1997); Dinkins, supra note 9, at 735. 107. See 58 Fed. Reg. at 45015 (stating agencies' belief that change in agency policy in Tulloch rule "is warranted in light of our increased understanding of the severe environmental effects often associated with the activities covered by the rule" and is based on "reasoned analysis"); Fed. Reg. at 45021-22 (creating a presumption that dredging and excavation activities destroy or degrade). 108. American Mining Congress v. Army Corps of Eng'rs, 962 F. Supp. 2 (D.D.C. 1997). On defendants' motion to alter or amend judgment, the District Court, Judge Stanley Harris, held that injunctive relief would not be restricted to plaintiffs, but would apply nationwide. Id. 70 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 of the agencies' appeal."0 9 Following Chevron, the Court of Ap- peals for the District of Columbia Circuit should reverse the district court and reinstate the Tulloch rule.
109. See Wetlands: Corps Again to Require Excavation Permits as Appeals Court Stays Lower Court Ruling, 28 Env't Rep. (BNA) 596 (1997) (reporting that court of appeals stayed Judge Harris' injunction pending appeal). SPECIAL ESSAY
COMPARATIVE RISK ASSESSMENT AND ENVIRONMENTAL PRIORITIES PROJECTS: A FORUM, NOT A FORMULA
by John S. Applegate'
I. INTRODUCTION Over the last decade, states and cities across the United States have established environmental priorities projects to iden- tify and to rank their environmental problems.2 Some of the projects are private organizations, some are part of a state or local environmental or public health authority, and some have other sponsorship.3 Nearly all are financially supported by the
1. James B. Helmer, Jr., Professor of Law, University of Cincinnati College of Law. I wish to express my deep appreciation to Hon. Robert Black, Jerry Lawson, and Pat Timm, my colleagues at the Hamilton County Environmental Priorities Project, for many valuable discussions of the theory and practice of environmental priorities projects. They did not know that I was making mental notes of our conver- sations for future use, so they must be held blameless for this essay. Also for the record, while I serve as vice-chair of the Project's board of directors, the views expressed herein do not necessarily reflect those of the Project or any of its participants. 2. As of October 1995, thirty-three states and tribes, and thirteen cities and counties had begun or completed environmental priorities projects. Project News 5, THE COMPARATIVE RISK BULLETIN (newsletter of the Northeast Center for Compara- tive Risk, Vermont Law School) Sept./Oct. 1995 at 9-11. EPA's Office of Policy, Plan- ning, and Evaluation reports that it has supported forty-five projects. Project Summa- ries (last modified Mar. 7, 1997)
United States Environmental Protection Agency (EPA) to repli- cate, on a state or local scale, its own internal efforts of about a decade ago to determine whether it was using its resources wise- ly.4 Environmental priorities projects seek to engage government officials, industry representatives, environmentalists, and non- aligned citizens - environmental experts and lay persons - in organizations that allow them to collect data about the environ- mental threats to the health and welfare of the area under study, to deliberate over the findings, and then to evaluate the problems in terms of their severity. Most of the projects also con- sider and rank actions to address the identified problems. The analytical framework for evaluating severity is almost always a type of comparative risk assessment. That is, the project at- tempts to determine the "worst" of the identified problems in terms of the risks that they pose to human health and the envi- ronment. Within this framework, they also seek to reach consen- sus results that are supported by citizens, industry, and govern- ment officials. The hope is that the results will guide the allo- cation of environmental protection resources to the most urgent problems, where the effort will do the most good. Environmental priorities projects have been controversial. State and local regulators see themselves confronting a range of problems that far exceeds their ability to handle them, so they are inclined to welcome risk comparison projects as a way to help make difficult resource allocation decisions. Industry often sees itself as the victim of irrational public fear, so it is drawn to risk comparison as a way to place industrial environmental risks in a more favorable perspective. However, environmental advoca- cy groups often oppose priorities projects vigorously.5 The oppo- sition is sometimes attributed to turf battles and this is undoubt- edly sometimes the case, but in fact the opposition is far more substantial and more fundamental. Environmentalists challenge the use of risk as a common metric against which direct compari- sons among environmental threats can validly be made, and they strongly oppose any implication that problems which do not score high on a risk scale are unworthy of governmental attention. In addition, they question whether environmental priorities projects
4. See infra Part I.A. 5. The environmentalist critique of comparative risk assessment is set out in Part LB, infra. 1997] PRIORITIES PROJECTS
- or the public generally, or regulatory agencies - have enough information about environmental threats to make credible judg- ments about the relative seriousness of various environmental threats. This essay posits a role for environmental priorities projects that responds to the need to address forthrightly the consequenc- es of limited environmental protection resources, yet accounts for the inadequacies of risk as the metric for allocation decisions. The key is recognizing that the process of deciding how to ap- proach an area's environmental problems can be separated from the analytical tools used to make the decision. Great value can be derived from a good decision making process, even if the spe- cific results are quite limited. Environmental priorities projects can be understood as the product of two developments in environmental law and policy. The first is the growth of comparative risk assessment as an analytical tool. Comparison of risks is the extension of the adop- tion of quantitative risk assessment as the justification for and measure of environmental regulation. Consequently, comparative risk is the logical methodology for setting priorities among envi- ronmental problems. The second development is the renewal of interest in developing deliberative democratic institutions. Delib- erative democratic theory' is a reaction to the perceived poor quality of current public debate. It asserts that public decisions should reflect a common vision of the public good, which can best (or only) be reached by an inclusive, consensus-based process of thoughtful debate or deliberation. The decisionmaking processes of environmental priorities projects tend to be structured along these lines. Comparative risk and deliberative democracy are not inexora- bly paired, however. Comparative risk does not imply any partic- ular decisionmaking process at all.7 Indeed, comparative risk is
6. This essay uses the term "deliberative democratic theory" loosely to encom- pass communitarian, republican, and civic republican approaches to public decisionmaking. The competing approach is interest group pluralism, or adversarial (in the sense of competing interests, not in the narrow sense of the common law judicial system) decisionmaking. See infra Part II.A. 7. U.S. EPA, A Guidebook to Comparing Risks and Setting Environmental Priori- ties [hereinafter Guidebook] (last modified Mar. 7, 1997)
8. Cf. THOMAS 0. McGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULA- TORY ANALYSIS IN THE FEDERAL BUREAUCRACY (1991) (describing the incentives for regulatory analysis and its weaknesses). Justice Breyer's proposals for an elite corps of civil servants exemplify the technocratic approach. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 59-68 (1993). 9. In addition to participation in the Hamilton County Environmental Priorities Project, I chair the Fernald Citizens Advisory Board (nde Task Force), which advises the U.S. Department of Energy on the environmental remediation of a former nuclear weapons production facility. One of the board's charges was to recommend clean-up priorities for the site. From these vantage points, I have had the opportunity to observe a number of other priority-setting efforts as well. 10. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Cri- tique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 633 (1992). "The better answer to the question 'how safe is safe?' may be the improved question: 'how good is the social dialogue on safety?"' Id. 19971 PRIORITIES PROJECTS
lent opportunity to study these fundamental issues of environ- mental decisionmaking in a concrete setting."
II. EPA, COMPARATIVE RISK, AND ENVIRONMENTAL PRIORITIES PROJECTS A. From Risk to Priorities The early pollution control statutes were aimed primarily at acute health effects that would be avoided in most people by reducing their exposure to pollutants below a scientifically deter- minable level. To provide a margin of safety for uncertainties, unusually sensitive persons, or unforeseen circumstances, the "safe" level could be further reduced by a scientifically deter- mined numerical factor. Thus the Clean Air Act, 2 promulgated in its modern version in 1970, required air pollution controls to be set at the level that "is requisite to protect the public welfare from any known or anticipated adverse effects."'3 However, some diseases, such as cancer, do not behave like the overt health effects of conventional air and water pollutants. Carcino- gens have long latency periods, may have effects at extremely low doses, and affect a relatively small number of persons cata- strophically. 4 Nevertheless, the same "safe" or "margin of safe- ty" approach dominated the original enactments for carcinogens. The Clean Air Act required hazardous air pollutants (mainly carcinogens) to be regulated to a level that "provides an ample margin of safety to protect the public health."'" As understanding of the mechanism of carcinogenesis in-
11. I plan to continue this exploration in a project tentatively entitled, Acting Locally: The Deliberative Democratic Ideal and Environmental Decisionmaking. 12. 42 U.S.C. § 7410(b)(2) (1970). 13. Id. 14. John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REv. 261, 264-65 (1991). See generally JOSEPH V. RODRICKS, CALCULATED RISKS: UNDERSTANDING THE TOXICITY AND HUMAN HEALTH RISKS OF CHEMICALS IN OUR ENVIRONMENT 38-144 (1992) (de- scribing the characteristics of fast poisons, slow poisons, and carcinogens). 15. 42 U.S.C. § 7412(b)(1)(B) (1988) (amended 1990). In the Vinyl Chloride case, the D.C. Circuit interpreted the statute to require EPA to establish an emissions limitation that would result in an "adequate" level of safety and then, if feasible, to reduce the emissions limitation still further to achieve an extra margin of safety. See Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 1164-65 (D.C. Cir. 1987) (en banc). 76 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
creased, however, confidence in the idea of a "safe" level of a carcinogen eroded."6 The dominant supposition (it is not a cer- tainty) that cancer is triggered by one chance "hit" of a molecule of a carcinogen on one receptive target cell suggests that there is theoretically no level of exposure above zero - no "threshold" - below which a carcinogen has no effect. 7 Lacking the ability to identify a safe/unsafe cut-off for regulation, regulators began to speak in terms of "unreasonable risk" to describe a greater-than- zero level of risk that would be permitted by regulation. In other words, EPA would not try to eliminate all risk from exposure to a chemical, because that would require eliminating all exposure to the chemical, which would usually require discontinuing its use. Elimination is possible (often desirable), but more expensive than EPA or Congress was willing to impose. Further, in the case of chemicals already in the environment, such as hazardous wastes, elimination of exposure is simply impossible to achieve. Thus, the later environmental statutes that focus primarily on toxic substances use various formulations to impose a greater- than-zero, "unreasonable" risk standard. The problem with the unreasonable risk standard is that it defies precise ex ante definition in two respects. First, the idea of risk means potential, not actual harm; therefore, the regulation is based on preventing, not actual illness, but the chance of the illness occurring. As the basis for imposing thousands or millions of dollars of costs on the economy, this is not the firmest of .grounds. Second, it is indefinite as to the level of risk that it denotes. Assuming that risk is expressed as the excess lifetime risk of death from cancer caused by the chemical,"8 the term
16. The developments traced in this and in the following paragraphs are de- scribed in greater detail in Applegate, supra note 14, at 264-84. See Al Alm, Why We Didn't Use "Risk" Before, 17 EPA J. 13, 13-14 (Mar.-Apr. 1991) (describing growing importance of risk from the perspective of a former Deputy Administrator of EPA); Paul A. Locke, The Limitations of Comparative Risk Assessment, 2(1) SHEPHARD'S EX- PERT AND SCIENTIFIC EVIDENCE 75, 77-81 (1994). 17. See RODRICKS, supra note 14, at 145-157 (discussing theories of the mecha- nism of carcinogenesis). 18. Each one of these qualifications is a choice: we tend to focus on fatalities instead of all illnesses, cancer instead of non-cancer effects, individual risk instead of expected number of deaths, etc. See generally J. Clarence Davies, Ranking Risks: Some Key Choices, in COMPARING ENVIRONMENTAL RISKS, supra note 3, at 14-21. Finkel dismisses this kind of risk comparison as "fatality comparison." Adam M. Finkel, Comparing Risks Thoughtfully, 7 RISK: HEALTH, SAFETY & ENVIRONMENT 325, 330 (1996); Locke, supra note 16, at 83-90. 1997] PRIORITIES PROJECTS
"unreasonable" does not tell us whether a one in ten risk is ac- ceptably low, or whether a one in one hundred thousand is unac- ceptably high. Nor, indeed, does it tell us how to make that judg- ment. Generally speaking, however, "unreasonable" is taken to mean that a number of non-health factors may be considered, notably cost and technical feasibility in determining the risk level.'9 Paradoxically, the indefiniteness of the unreasonable risk formulation resulted, not in a tendency to rely on narrative or qualitative descriptions of the hazard and the residual risk level, but rather in a great deal of pressure to quantify the risk before regulation and the residual risk after controls were imposed." This was the result of several overlapping developments: a gen- eral effort to rationalize disparate approaches to toxic substanc- es, a demand for more rigorous justification of regulatory restric- tions, and a repeated judicial demand for justification through quantification."' The upshot was that courts and regulators, and ultimately Congress, settled on a technique known as quantita- tive risk assessment to be the primary measure of environmental harm and of remedial efforts.22 Quantitative risk assessment responded to the uncertainties of the unreasonable risk standard with apparently scientific, objective, and precise numbers reached through a well-defined and rational methodology.2"
19. Applegate, supra note 14, at 268-277. 20. The distinction between "before" and "after" risk levels is developed in John S. Applegate, Worst Things First: Risk, Information, and Regulatory Structure in Toxic Substances Control, 9 YALE J. ON REG. 277, 305-306 (1992). The Supreme Court's "Benzene" decision exemplifies the difference. The Court required OSHA to demonstrate a definite and unacceptably high level of existing risk as the prerequi- site to taking any regulatory action. Once restrictions were justified by a finding of the unacceptable risk, OSHA was permitted to require the lowering of the risk to the lowest "feasible" level. See generally Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1979). 21. See Applegate, supra note 14, at 281-284 (criticizing the demand for quantification and expressing concern about the data demands of quantitative risk assessment); Hornstein, supra note 10, at 569-75; Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REv. 1613 (1995). 22. Congress was, interestingly, the last to fall in line. Its initial foray into toxic substances regulation, the Delaney Clause, which banned any carcinogen at any level in food additives, required only a qualitative assessment that a substance was a carcinogen. By 1990, however, the Clean Air Act Amendments expressly regulated air toxics to a residual risk level of one in one million. 42 U.S.C. § 7412(f)(2)(A) (1989). 23. The uses and methods of risk assessment were authoritatively described in the 1983 Red Book, NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL 78 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Quantitative risk assessment also responded to a broader interest in regulatory rationality, that is, the desire to make regulatory actions consistent with each other and efficient in objective, quantifiable terms. Rationality is a bulwark against judicial challenge and also against political dissatisfaction with the costs that regulation imposes on the constituents of elected officials. If quantitative risk assessment held out, in Donald Hornstein's words, the "allure of science" for courts reviewing agency action under indefinite legal standards, it also held out the "allure of rationality" and the "allure of synopticism" for EPA's own policy analysis.24 Quantitative risk assessment pro- vides one of the numerical inputs to cost-benefit analysis, some version of which is the overarching analytical structure of regu- latory rationality and the implicit counterweight to human health in making the "unreasonableness" determination. Because risk appears to be a common characteristic of many different environmental programs in different areas, it provides a way to make comparisons across those programs to evaluate the consis- tency and relative cost-effectiveness of regulatory interventions. Risk was thus attractive to regulators as a powerful tool for internal management as well as external justification." In roughly this way risk became established as the principal measure of EPA's activities. At that point, risk took on a life of its own, and it came to be perceived as the raison d'etre for the agency. By the end of William Ruckelshaus' second stint as Ad- ministrator of EPA, risk reduction defined EPA's mission.2" If
GOVERNMENT: MANAGING THE PROCESS (1983). Subsequent NRC publications have refined but not replaced the underlying paradigm. See NATIONAL RESEARCH COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT (1994); NATIONAL RESEARCH COUNCIL, UNDERSTANDING RISK: INFORMING DECISIONS IN A DEMOCRATIC SOCIETY (1996) [here- inafter UNDERSTANDING RISK]. 24. Hornstein, supra note 10, at 565-584. 25. Frederick R. Anderson, CRA and Its Stakeholders: Advice to the Executive Office, in COMPARING ENVIRONMENTAL RISKS, supra note 3, at 66-68. 26. Hornstein, supra note 10, at 585-586; Gilbert S. Omenn, Making Use of Can- cer Risk Assessment, 12:4 ISSUES IN SCIENCE AND TECHNOLOGY 29, 29 (Summer 1996) ("Risk is the coin of the realm in environmental, health, and safety regula- tion .... "); F. Henry Habicht II, EPA's Vision for Setting Environmental Priorities, in WORST THINGS FIRST, at 33-38 (Adam M. Finkel & Dominic Goldings eds., 1994); Charles W. Kent & Frederick W. Allen, An Overview of Risk-Based Priority Setting at EPA, in WORST THINGS FIRST, supra at 47-50. A small but telling example of this can be found on EPA's web page. The link on the page entitled "Risk Reduction", Browse EPA Topics (last modified Jan. 21,1998) 1997] PRIORITIES PROJECTS
risk reduction in the various media for which EPA is responsible (air, water, solid waste, industrial chemicals, etc.) is the goal, then the logic of making risk comparisons across EPA's programs is well nigh irresistible. EPA wanted to know if it was applying the same standards to air, water, and radiation, for example. EPA also wanted to know whether it was targeting the most serious threats and whether its efforts in various programs were equally effective in reducing risk. Given the chronic and substan- tial gap between EPA's actual resources and the number of envi- ronmental threats that EPA might usefully address, these ques- tions are not just interesting, they are essential to responsible management. 7 The acceptance of the basic risk metric, in other words, opened up whole new vistas of useful analysis within and across EPA's many programmatic areas, and it was not long before EPA vigorously pursued these possibilities." Ruckelshaus' successor, Lee Thomas, began an aggressive program of comparative risk assessment.' 9 The initial effort, entitled Unfinished Business,0 gathered EPA officials from across the agency's programs to identify and rank the environ- mental problems that each faced, and then to make comparisons across programs. The results were necessarily tentative (EPA was explicit about this),' but some were striking. For example, it appeared that EPA allocated relatively large amounts of its resources to hazardous waste in comparison to their relatively modest risks, and allocated little in relation to indoor air pollu- tion, pesticides, and worker risks.32 Subsequently, three EPA regions undertook comparative anal-
33. U.S. EPA, COMPARING RISKS AND SETTING ENVIRONMENTAL PRIORITIES: OVER- VIEW OF THREE REGIONAL PROJECTS (1989). 34. The opening sentence of UNFINISHED BUSINESS had declared, 'The fundamen- tal mission of the Environmental Protection Agency is to reduce risks to health, ecosystems and welfare," supra note 30, at 1. 35. Jonathan Bender, Societal Risk Reduction: Promise and Pitfalls, 3 N.Y.U. ENVTL. L. J. 255, 259-62 (1995). 36. SCIENCE ADVISORY BOARD (SAB), U.S. EPA, REDUCING RISK: SETTING PRIORI- TIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION app. B at 32-34 (1990) [here- inafter REDUCING RISK]. 37. See GUIDEBOOK, supra note 7. 38. See Bender, supra note 35, at 259-62. 39. See Minard, supra note 3, at 33. 40. See MINARD ET AL., FORCE FOR CHANGE, supra note 3, at 10-12. The excep- 1997] PRIORITIES PROJECTS
The relatively early California Comparative Risk Project in- volved three expert ranking committees for human health, social welfare, and ecological health; public committees on environmen- tal justice and education; and a statewide community advisory committee on policy questions.4 The later Ohio project used a technical assessment group to provide information and a public advisory group to take the lead in risk ranking.42 It was in the state rather than the federal projects, then, that the democratic decisionmaking element of environmental priorities projects really took shape.
B. The Comparative Risk Debate Commentators have distinguished two versions of comparative risk assessment.4" The "hard" version emphasizes quantitative comparisons of risk, ideally resulting in a unified ranking of risks from highest to lowest. This usually includes a large ele- ment of technical or expert assessment of risk, and it requires a very substantial amount of information to be successful. The "soft" version is less quantitative, and its environmental data and results are more narrative (i.e., conveyed in words and de- scriptions rather than in numbers). In practice, most priorities projects use a soft methodology. The EPA and California projects not only distinguished among human risk, social welfare effects, and ecological effects (Unfinished Business even distinguished between cancer and non-cancer health risks), but they also avoided direct comparisons across the types of risks." More- over, they grouped problems into high, medium, and low catego- ries to describe the seriousness of the risks (though Unfinished
tion is the Michigan project, which was comprised of government officials only. Id. 41. CALIFORNIA COMPARATIVE RISK PROJECT, CALIFORNIA EPA, TOWARD THE 21ST CENTURY: PLANNING FOR THE PROTECTION OF CALIFORNIA'S ENVIRONMENT (May 1994). [hereinafter TOWARD THE 21ST CENTURY]. 42. OHIO COMPARATIVE RISK PROJECT, OHIO EPA, OHIO: STATE OF THE ENVIRON- MENT REPORT 8-13 (Dec. 1995) [hereinafter OHIO: STATE OF THE ENVIRONMENT RE- PORT]. 43. See Hornstein, supra note 10, at 585; Finkel, supra note 26 at 7-8; Jonathan Lash, Integrating Science, Values, and Democracy Through Comparative Risk Assess- ment, in WORST THINGS FIRST, supra note 26, at 74-76. See also A NEW DIRECTION FOR EPA, supra note 32, at 141-42 (using the terms "narrow" and "broad," respec- tively, for "hard" and "soft"). 44. UNFINISHED BUSINESS, supra note 30, at 5-8; REDUCING RISK, supra note 36, at 8; TOWARD THE 21ST CENTURY, supra note 41, at 5. 82 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Business ranked within the categories), instead of developing specific numerical risk designations.45 Ohio took a similar ap- proach, but developed a system for rough comparisons across areas.4" Actual priorities projects chose the soft approach for two reasons. First, they did not have nearly enough firm data available to make credible quantitative evaluations of risks across all of the programmatic areas or environmental media that were being compared.47 Second, narrative description avoided the problem of comparing unlike problems, such as drinking water and workplace safety, or radon and hazardous waste sites.48 The logic of comparative risk and quantitative risk assess- ment, however, treats soft comparisons as a second-best to quan- titative comparison.49 If one is serious about determining which problems are worst and which solutions are most cost-effective, the thinking goes, one should attempt to understand exactly how the hazards and remedial programs rank. ° Given limited re-
45. UNFINISHED BUSINESS, supra note 30, at 26, 42, 55; REDUCING RISK, supra note 36, at 13-14; TOWARD THE 21ST CENTURY, supra note 41, at 83-84. 46. OHIO: STATE OF THE ENVIRONMENT REPORT, supra note 42, at 15-21; A NEW DIRECTION FOR EPA, supra note 32, at 142. The Ohio system for comparing across risk types involved an implicit ranking of human health and ecosystem risk higher than quality-of-life risks. Items that scored high in more than one risk category would risk highest overall. Id. A more elaborate, but still primarily narrative ap- proach is described in CHRISTINA CHOCIOLKO & W.G.B. SMITH, SETTING ENVIRONMEN- TAL MANAGEMENT PRIORITIES: RETHINKING RISK ANALYSIS (Working Paper Series 96- 3, 1996). 47. E.g., UNFINISHED BUSINESS, supra note 30, at 535-41; REDUCING RISK, supra note 36, at 8; TOWARD THE 21ST CENTURY, supra note 41; OHIO: STATE OF THE ENVI- RONIvIENT REPORT, supra note 42, at 8-13. 48. E.g., UNFINISHED BUSINESS, supra note 30, at 5; REDUCING RISK, supra note 36, app. B at 32; TOWARD THE 21ST CENTURY, supra note 41; OHIO: STATE OF THE ENVIRONMENT REPORT, supra note 42, at 8-13. 49. As Hornstein points out, the hard version is no straw man; it has plenty of adherents. Hornstein, supra note 10, at 584-87. Moreover, despite frequent disclaim- ers of reliance on a hard version, the institutional pressures to quantify, described above, remain. A good example of these mixed signals can be found in the NAPA report. On one hand, NAPA recommends that EPA "[make risk analysis and com- parisons of risk-reduction approaches a central feature of EPA regulation and priority setting." On the other hand, it warns (in smaller type) that EPA should "use a broad definition of risks, costs, and benefits, consistent with public values." A NEW DIREC- TION FOR EPA, supra note 32, at 67. 50. Howard Latin has criticized the whole idea of "fine-tuning' environmental law. While his criticisms are directed to a different type of fine-tuning (using market mechanisms to allocate pollution restrictions more efficiently), they are relevant here. See Howard A. Latin, Ideal Versus Real Regulatory Efficiency: Implementation of 1997] PRIORITIES PROJECTS 83 sources and a goal of risk reduction, such an analysis would re- veal definitively how best to allocate the resources. Hence, the existence of a hard version exerts a constant pressure to make more definitive quantitative comparisons across greater numbers of activities.5' Ironically, though, it is in the hard, quantitative version of risk comparison that the weaknesses of the technique are most apparent and most serious." Despite the apparently ineluctable logic of setting environmental priorities and of uti-
Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267 (1985) (arguing that overemphasis on precision in regulation results in overly timid responses to environmental problems). 51. The environmental priorities projects make risk comparisons across several programs or environmental media. However, there is a different kind of comparative risk analysis which compares the risk consequences of choices within a particular program or environmental activity. For example, the decision to clean-up a hazardous waste site may reduce risk to the site's neighbors over the long term, but it will also increase the risk to remediation workers in the short term. See John S. Applegate & Steven M. Wesloh, Short Changing Short-Term Risk: A Study of Superfund Remedy Selection, 15 YALE J. ON REG. (1998). Some risk scholars have developed very elabo- rate analytical systems for making such comparisons, and they are invariably quanti- tative or aspire to quantification. See, e.g., Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851, 900-906 (1996); RISK VERSUS RISK: TRADE-OFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 16-17 (John D. Graham & Jonathan Baert Wiener eds., 1995) [hereinafter RISK VERSUS RISK]; W. Kip Viscusi, Risk-Risk Analysis, 8 J. RISK UNCERTAINTY 5, 12-13 (1995); W. KIP VISCUSI, FATAL TRADE-OFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK (1992); STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULA- TION (1993). In some ways, these intraprogram comparisons are more analytically sound and useful in policymaking, but they also suffer from some of the same limita- tions that interprogram comparisons do. See John S. Applegate, When the Cure is Worse Than the Disease (abstract of presentation at Symposium on Risk, Science & Law, Society for Risk Analysis Annual Meeting (Dec. 10, 1996)) (describing Superfund remediation risk as a problem in comparative risk analysis). In any event, this essay does not address such analysis. 52. It should be noted, however, that the soft version of comparative risk assess- ment is not immune from criticism by environmentalists. See Finkel, supra note 18, at 347-50. The environmentalist critique of comparative risk assessment appears in several of the chapters in COMPARING ENVIRONMENTAL RISKS, supra note 3, and WORST THINGS FIRST, supra note 26; Hornstein, supra note 10; Finkel, supra note 18; Symposium, Setting Environmental Priorities: The Debate About Risk, 17 EPA J. 13 (Mar.-Apr. 1991); Ellen K. Silbergeld, The Risks of Comparing Risks, 3 N.Y.U. ENVTL. L.J. 405 (1994); Adam M. Finkel, A Second Opinion on an Environmental Misdiagnosis: The Risky Prescriptions of Breaking the Vicious Circle, 3 N.Y.U. ENVTL. L.J. 295 (1994) [hereinafter A Second Opinion]; David A. Wirth & Ellen K. Silbergeld, Risky Reform, 95 COLUM. L. REV. 1857 (1995) (book review); Locke, supra note 16, at 84-98; Richard N.L. Andrews, Long-Range Planning in Environmental and Health Regulatory Agencies, 20 ECOLOGY L.Q. 515, 550-58 (1993); Anderson, supra note 25, at 72-75. This section is a very brief synopsis of the main points made in this voluminous literature. 84 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 lizing comparative risk to set them, comparative risk has sub- stantial and fundamental limitations which are suggested by many projects' choice of a soft version of comparative risk. At the most practical level, the problem is information. The data to support credible quantitative descriptions of a broad range of environmental problems simply does not exist.53 This "data gap" could be remedied to some extent by massive spend- ing on data generation and gathering, though this begs the question whether comparative risk is where that money should be spent.54 However, that spending would still leave a substan- tial area of uncertainty that results from our incomplete scientif- ic understanding of the effects of pollutants in the environ- ment.55 Filling these gaps and uncertainties with assumptions and default values is antithetical to the kind of rigorous quanti- tative conclusions to which the hard version of comparative risk aspires.56 Moreover, the existing information is not uniformly distributed or available to all. Many commentators have noted that industry holds much of the relevant data, especially on its
53. On the lack of data generally, see Applegate, supra note 14, at 284-98; Mary L. Lyndon, Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data, 87 MICH. L. REv. 1795 (1989). EPA was acutely aware of the problem in its comparative risk studies, UNFINISHED BUSINESS, supra note 30, at 14, 35-41, REDUCING RISK, supra note 35, at 8, and it is a persistent theme of comparative risk critics. See Bender, supra note 36, at 259-62; Robin Shifrin, Note, Not by Risk Alone: Reforming EPA Research Priorities, 102 YALE L.J. 547, 559-65 (1992); Locke, supra note 16, at 84-90. EPA's Science Advisory Board (SAB), for example, recently conclud- ed that it could not properly measure environmental performance by various sectors of industry, because it had no meaningful data on exposure, and without exposure data it was impossible to "say anything definitive about the risk." See Enforcement: Lack of Exposure Information in SFIP Hinders Risk Assessment, SAB Panel Says, 28 ENVT. REP. 999 (Sept. 26, 1997). The board went on to suggest that toxicity or haz- ard information alone might be useful for setting priorities. Id. Although that sugges- tion is probably correct, it is a far cry from the hard version of comparative risk. 54. In comparative risk terms, it is almost certain that the risk reduction achieved by spending limited resources on analysis would be less than spending that money, even inefficiently, on attacking environmental problems themselves. See John S. Applegate, A Beginning and Not an End in Itself- The Role of Risk Assessment in Environmental Decision-Making, 63 U. CIN. L. REv. 1643, 1648-51 (1995) (criticizing regulatory reform legislation for itself imposing inefficient costs); Shifrin, supra note 53, at 559-65, 569-75 (expressing concern that risk-based priority setting will take on a costly life of its own). 55. See Applegate, supra note 14, at 285-89. 56. Adam Finkel argues that risks due to uncertainty and variability can only be described as ranges, noting that once the risk range is considered, rankings are like- ly to be less definite and even reversed. Finkel, supra note 18, at 335-38. 1997] PRIORITIES PROJECTS
processes and the hazards of its activities and products.57 This is to be expected, of course, but environmentalists are justifiably concerned that priority setting based on selectively revealed information will be not only inaccurate, but skewed. Risk itself has a distinct technical and political "allure" to beleaguered regulators and industries. It offers an apparently scientific justification for regulatory action (or inaction) that considers other dangers and, through cost-benefit analysis, the benefits of a particular activity.58 The choice of quantified risk as the measure of environmental danger is itself a policy choice and a value judgment. To some degree, risk is problematic be- cause it has its own potential for inaccuracy - where informa- tion is scarce and judgment must fill the gaps, 9 misperception or biased perception undermine claims to objectivity. More im- portant, quantification distracts attention from the underlying value choices,6 ° and it obscures fundamental changes that might avoid the trade-offs altogether.61 Also, by focusing on ad- justing risk consequences, we may be discouraged from examin- ing underlying causes. Fundamentally, risk is a grossly incomplete way of looking at environmental problems. It does not, without more, describe the distribution of risk (is it fairly uniform across the population or is it focused on a small geographic or demographic group?), nor
57. See, e.g., Lyndon, supra note 53 (generally arguing that environmental policies should be designed to encourage the development of toxicity information by industry). Alternatively, they "choose ignorance" of toxic hazards. See Wendy Wagner, Choosing Ignorance in the Manufacturing of Toxic Products, 82 CORN. L. REV. 733 (1997). 58. In fairness, regulators and industry are not the only outcome-based users of science, as Wendy Wagner has recently reminded us. Wagner, supra note 21, at 1650-73. 59. UNFINISHED BUSINESS, supra note 30, at 2-4; NATIONAL RESEARCH COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT 80-84 (1994). 60. This is a universal concern about comparative risk assessment. See, e.g., M. Granger Morgan, Quantitative Risk Ranking: More Promise than the Critics Suggest, in WORST THINGS FIRST, supra note 26, at 116-42; Finkel, A Second Opinion, supra note 52, at 330 ('The gulf is not between facts and values, but between value-laden facts and fact-laden values."); Wirth & Silbergeld, supra note 52, at 1875-77; Michael S. Baram, Use of Comparative Risk Methods in Regulatory and Common Law, 13 COLUM. J. ENVTL. L. 1, 12 (1987); Bender, supra note 36, at 259-62. 61. Donald T. Hornstein, Lessons from Federal Pesticide Regulation on the Para- digms and Politics of Environmental Law Reform, 10 YALE J. ON REG. 369 (1993); Finkel, A Second Opinion, supra note 52, at 323-24; Shifrin, supra note 53, at 559- 62, 569-75; see also Wirth & Silbergeld, supra note 52, at 1871 (describing such trade-offs as "Sophie's choice"). 86 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 the source of the risk (is it a well-operated steel mill or a mid- night dumper?). In both cases, the distribution of the risk and its source raise the question of the "equity" or fairness of the risky activity. Voluntarily assumed risks or risks over which the ex- posed persons exercise some control are understood differently from those imposed involuntarily, especially if they are wrongful- ly imposed. Risk also does not consider the relative ease or diffi- culty of reducing or eliminating the risk. In deciding which envi- ronmental problem is "worst," one might well find a highly avoidable but numerically low risk less justifiable than a numer- ically high but difficult to control risk. Likewise, a risk reduction activity that brings with it collateral benefits (for example, re- ducing car travel also reduces our dependency on foreign oil)62 might well be preferred to an action that more substantially reduces health risks. Finally, a small risk of a catastrophic result is mathematically the same as a larger risk of a less dire out- come. But people are justifiably more concerned with the possi- bility of a catastrophe to themselves through a fatal illness like cancer or a catastrophe to the population generally through an environmental disaster like Chernobyl. The underlying problem with risk as the metric for comparison is that there are many kinds of risks, and they affect many dif- ferent groups of people and the environment in different ways. The first question must be: risk of what? For toxic substances, EPA uses risk of death from cancer as the primary endpoint, but as noted above that is really very narrow." Cancer is not the only disease of concern to us. Other health effects about which science understands very little, such as endocrine disruption and genetic mutation, may seem equally sinister. Moreover, since environmental priorities projects are not limited to toxic chemi- cals or to human health, the cancer death measure seems even more constraining. As one commentator on a cost-benefit analy- sis of smog reduction said, "how do you put a value on an asth-
62. Some comparative risk advocates, for example, John D. Graham, Saving Gas- oline and Lives, in RISK VERSUS RISK, supra note 51, at 87-103, would treat depen- dency on foreign oil as a "risk" as well, to be compared to the risks of pollution. But the risks associated with dependency on foreign oil, such as constraints on foreign policy, high costs of manufacturing and higher commuting costs, are so different from health and environmental risks that this use of the term stretches it to meaninglessness. In that sense, every bad consequence is a "risk." 63. See Finkel, supra note 18, at 330-31. 1997] PRIORITIES PROJECTS
ma attack?"64 In the occupational setting, serious and debili- tating injuries are far more common than fatalities, and are thus arguably the more serious concern. Occupational injury also raises the question whether risks to workers, which we to some extent voluntarily assumed and compensated, should be treated the same or differently from risks to the general populace.65 Should risks to children be evaluated on a par with population risks? What about risks to the elderly? And how are harms to the natural or physical environment to be measured against human health risk? Unless it can place a numerical value on the distinction (for example twenty-five dollars for an asthma attack, or a fifty percent discount of voluntary workplace injuries), quan- titative analysis alone cannot reflect these differences. The foregoing is often referred to as the "apples and oranges" problem with comparing risks. As Adam Finkel has pointed out, however, there is no difficulty in comparing apples and oranges, as long as the criteria for comparison are clearly understood and are material to the decision to be made.6 The problem is that risk per se does not constitute an all-inclusive basis for compari- son among environmental problems. Yet such comparisons are at the heart of the comparative risk assessment enterprise, which, by its own terms, treats all human health risks as interchangable with each other and with effects on the natural environment and social welfare. General comparisons cannot be avoided in environmental priorities projects because they are the purpose of the projects, but precise risk rankings that emerge from environmental priorities projects should be viewed with skepticism and used with caution.
C. More Modest Claims for Risk Comparison
Even if one could find or generate adequate data to give com- parative risk assessment some semblance of precision, there are too many non-numerical considerations, such as public values,
64. See James M. Lents, Letter to the Editor, 253 SCI. 607, 608 (1991) (rejecting the valuation of an asthma attack at twenty-five dollars in Alan J. Krupnick & Paul R. Portney, Controlling Urban Air Pollution: A Benefit-Cost Assessment, 252 SCI. 522 (1991)). 65. See RISK VERSUS RISK, supra note 51, at 16-17 (noting that occupational risks are voluntarily undertaken and so may be evaluated differently from other risks). 66. See Finkel, supra note 18, at 332-35. 88 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 risk distribution, differing characteristics of different risks, and the like, to permit a fair analysis of environmental problems in quantitative terms. Does this mean that comparing environmen- tal hazards and setting priorities is impossible or pointless? No - it means that the claims for comparative risk and environ- mental priority setting need to be more modest ("softer") than its strongest proponents allow, and, interestingly, closer to the actu- al practice of comparative risk projects. As an initial matter, we must recognize that priority setting itself is not an obscure, arcane process with nefarious aims. The concern is often expressed that environmental priority setting is simply an excuse to take some problems off the table because low-ranked problems will be ignored. Based on this concern, many environmental organizations have eschewed involvement in environmental priorities projects. But priority setting is some- thing we all do every day, because none or very few of us have the resources that allow us to live our lives as if we can do ev- erything now, as much as we want. We have to decide what we need, and then what we want most. The same thing also hap- pens every day in every regulator's office: what are the most pressing out of the whole universe of problems that they would like to be able to deal with? Without setting priorities, they sim- ply react to momentary crises, wasting resources and ignoring important long-range problems. 7 The extremely serious threats of global warming and ozone depletion, for example, are ignored for this reason. Priority setting even happens in environmental organizations. Environmental organizations cannot possibly file every lawsuit or fund every research project that they would like to; they make hard choices about what they regard as the greatest needs. A recent Nature Conservancy newsletter, for example, reported on its priority-setting efforts with the United States Agency for International Development as follows: In late 1993 the U.S. Agency for International Development (USAID) realized it could no longer give equal attention to biodiversity in all parts of the world. It needed a methodology for determining those areas where proportionately greater investment in conservation should be made. USAID requested that the
67. See Applegate, supra note 20, at 287-89, 319-24; DANIEL FIORINO, MAKING ENVIRONMENTAL POLICY 3-7 (1995). 1997] PRIORITIES PROJECTS
Biodiversity Support Program, a consortium consisting of The Nature Conservancy, World Wildlife Fund, and the World Re- sources Institute, provide this methodology. The program invited five other leading conservation organizations to serve on a non- governmental organization working group to assist in developing an approach to determining biodiversity conservation priorities in Latin America and the Caribbean. The principles developed at the Miami workshop are already yielding some important and surprising results .... The investment methodology [that resulted] included three levels of analysis: biological importance; conservation threat and opportunity; and policy and institutional capacity for conservation. These three levels of analysis were then integrated to determine investment priorities. And the results were profound. 8 These organizations could have simply told USAID that biodiversity is too important to put a price tag on it, and so USAID should simply do better in coming up with resources. But instead of spurning the offer to get involved, the organizations not only made a decisive difference in what was funded, they also shed important new light on the problems facing them. The article goes on to note, in fact, that "[n]umerous new priority areas emerged that have not received significant attention in the past."69 Instead of asking simply which problems are worst or which pose the greatest risk, they asked where investment would be most effective. Thus the organizations' conclusion, that certain areas ought to receive "proportionately greater investment, 70 was hardly an endorsement of abandoning the rest. The USAID process set priorities on actions, not problems.7 But there is priority setting and priority setting, so to speak, and claims for it must be modified accordingly. First, a priorities project should beware of, which is not to say that it should com- pletely abjure, specific risk rankings and comparisons across risk endpoints. The hard version that relies on quantified risk clearly asks too much of extant risk data and of technical rationality. It is simply misleading to suggest that the data are available that
68. NATURE CONSERVANCY, INTERNATIONAL UPDATE, SETTING PRIORITIES FOR CON- SERVATION INVESTMENTS: GETING THE MOST FOR THE MONEY (Spring 1995). 69. Id. 70. Id. 71. This strategy is recommended in MINARD, FORCE FOR CHANGE, supra note 3, at 4-5. It was also adopted by the Hamilton County Environmental Priorities Project. 90 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 would support a precisely calibrated hierarchy of environmental problems or actions. Moreover, scientifically defensible methods for comparing risk types do not yet exist.72 General categories of severity have provided useful and sometimes surprising results in several projects, and narrative categories avoid the excesses of overquantification. The maintenance of separate risk types, even if they are ultimately combined (as in Ohio)7", reinforces the idea that different risks implicate different distributional and ethical concerns. In other words, there is also risk and risk, so to speak, and priorities projects must not obscure the distinctions. Second, a broader conception of the basis of priority setting means that the relevant considerations cannot be limited to items that are quantifiable, even in theory.74 Values and policy choices are not only an inescapable part of environmental decisionmaking, they may in fact dominate it. To turn the pro- cess into a technocratic exercise misses the ethical basis of envi- ronmental regulation, and it certainly undercuts the political viability of the results. The chair of the Presiden- tial/Congressional Commission on Risk Management has ob- served: [The] descriptive and evaluative features are more important than the quantitative estimate of the magnitude of the risk or probabil- ity of occurrence. Likewise, description of the sources and signifi- cance of the assumptions and uncertainties is at least as impor- tant as any quantitative modeling of those uncertainties.75 This requires not only the addition of values and other non- quantitative criteria to. the analysis of each problem, but it makes comparison among problems a complex, imprecise under- taking. Again, this does not render comparisons useless. It sim- ply means that our way of describing the comparisons must be more narrative and detailed: the "x > y" model will not do the
72. Locke, supra note 16, at 98. 73. See supra note 42 and accompanying text. 74. See generally ENVIRONMENTAL RISK, ENVIRONMENTAL VALUES, AND POLITICAL CHOICES: BEYOND EFFICIENCY TRADE-OFFS IN PUBLIC POLICY ANALYSIS (John Martin Gillroy ed., 1993) (a series of essays defining environmental values in other than quantitative, cost-benefit terms); MARK SAGOFF, THE ECONOMY OF THE EARTH: PHI- LOSOPHY, LAW, AND THE ENVIRONMENT (1988) (arguing that environmental regulation is and should be the expression of principles and public values, not technocratic cal- culation). 75. See Omenn, supra note 26, at 31. 1997] PRIORITIES PROJECTS job. Not only is risk one of several factors, but risk descriptions themselves must take account of the different qualities of differ- ent risks. "The unmet challenge of [comparative risk assessment] is to describe disparate risks in rich, informative and non-ma- nipulative ways."78 Another way of stating this is, since not ev- ery relevant consideration can be characterized - and certainly not quantified - as a version of risk, risk assessment is but one of several analytical tools for making good environmental 77 policy. Third, the priority setting process must involve and be under- standable to the people who are affected by the problems being ranked." Except perhaps as an internal analytical exercise, en- vironmental priority setting cannot be a technical project run ex- clusively by environmental policy experts. In part, this is a corol- lary of the mandate to include public values in the analysis. Who better to identify and apply public values than the public itself? The public is also an important source of information on the sources and effects of environmental problems with which they live on a daily basis.79 While public perceptions of the nature, source, and degree of risk can certainly be erroneous or distort- ed, o they have a direct contact and concern that experts ignore at their peril.8' Finally, under the heading of enlightened self-
76. Finkel, supra note 18, at 335 (italics omitted). For a description of several dimensions of risk and an insistence that they be fully considered, see id. at 338-47. 77. NATIONAL RESEARCH COUNCIL, BUILDING CONSENSUS THROUGH RISK ASSESS- MENT AND MANAGEMENT OF THE DEPARTMENT OF ENERGY'S ENVIRONMENTAL REMEDIATION PROGRAM 3, 12-17, 35-37 (1994) [hereinafter BUILDING CONSENSUS]; OFFICE OF ENVTL. MANAGEMENT, DEPARTMENT OF ENERGY, RISKS AND THE RISK DE- BATE: SEARCHING FOR COMMON GROUND 7 (1995); Applegate, supra note 54, at 1658- 64; Daniel C. Esty, What's the Risk in Risk?, 13 YALE J. ON REG. 603, 605-06 (1996) (book review) (reviewing RISK VERSUS RISK, supra note 50); CARNEGIE COMM'N ON SCIENCE,TECHNOLOGY, AND GOVERNMENT, RISK AND THE ENVIRONMENT: IMPROVING REGULATORY DECISION-MAKING 81 (1993) [hereinafter RISK AND THE ENVIRONMENT]. 78. Applegate, supra note 54, at 1654-56; Department of Energy, Risk Assess- ment, Management, and Communication and Priority Setting (1995) [hereinafter DOE Risk Principles]. For the text of DOE Risk Principles, see Applegate, supra note 54 app. at 1675. This is generally consistent with the USAID process, which necessarily involved international environmental organizations as surrogates for affected persons in remote parts of the world. 79. Andrews, supra note 52, at 552-58. 80. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman et al. eds., 1982) (identifying several sources of distortion in public perception of risk). 81. Wagner, supra note 21, at 1650-73. 92 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 interest, public involvement builds the political support that any priority setting effort will eventually require if it is to be imple- mented. As many commentators on EPA priorities have noted (usually with chagrin), technical evaluations of risk make little headway against popular evaluations communicated to the agen- cy through Congress.82 A closed process involving only designat- ed experts is unlikely to garner much public enthusiasm. With these more modest claims and aspirations, environmen- tal priority setting can be a useful, transparent, politically sup- portable enterprise. The soft version does not resolve all of the problems of comparative risk assessment, but it facilitates a plausible effort at the essential task of allocating environmental resources as wisely as possible. We now turn to the second major element of environmental priorities projects, a democratic decisionmaking process.
III. DELIBERATIVE DEMOCRACY There are good instrumental reasons, described above, for involving the public in environmental priority setting. Funda- mentally, however, public participation should be based on the belief that it is the way that a democracy ought to resolve public problems. We are in this together, and we depend on each other for solutions. Moreover, we need to understand that while we come to environmental priorities from different perspectives and with different goals, those perspectives and goals overlap to a greater degree than perhaps we realize. The managers and em- ployees of industries that create risks to a community are also citizens of the community, just as the citizens of that community patronize and are employed by those businesses. The great ma- jority of people have good intentions and high aspirations: they want to do the right thing, even though they have very different views of what the right thing is. If environmental and economic goals can be mutually reinforcing, and if business and communi- ty overlap, then we ought to be able to recognize that we have common problems, that we have common goals, and then per-
82. Justice Stephen Breyer is the leading example of the chagrined observer. See BREYER, supra note 8 at 33-51. He identifies a self-perpetuating cycle of public misperceptions (aided and abetted by sensational press accounts), Congressional reac- tion, and the inherent uncertainties in the regulatory process to account for the tech- nically unjustifiable EPA priorities. Id. 1997] PRIORITIES PROJECTS haps we can find common solutions. In a democratic society we reach common solutions by decisionmaking processes that in- clude as many of the affected or potentially affected persons as are willing to participate.
A. Theory and Process
If the foregoing justification for public participation sounds quixotic, it is probably because there is a growing dissatisfaction with the poor quality of public discourse in this country. Many concerns have been identified, but central among them is the ad- versarial nature of public debate. We are encouraged to think of ourselves as representing specific interests, which are different to a greater or lesser degree than others' interests. Public decisionmakers make choices and compromises among the vari- ous interests - helping some, hurting others - in response to each group's special pleas. As a result, people are encouraged to treat each other as adversaries who need to be defeated or held at bay. This interest group pluralism is the dominant view of modern politics, and it has an increasing number of critics who believe that it encourages the taking of extreme and selfish posi- tions, obscures areas of agreement and common ground, and entirely misses the possibility that there is a common good that could be determined by working together thoughtfully to solve common problems.83 This is not the place to develop deliberative democratic theory
83. The academic proponents of this view include a remarkably broad range of scholarly disciplines, including lawyers, sociologists, historians, and political theorists. For a sampling of wide variety of this literature, see Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Cass R. Sunstein, Democratizing Amer- ica Through Law, 25 SUFFOLK U. L. REV. 949 (1991); Frank Michelman, The Su- preme Court, 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); ROBERT REICH, THE POWER OF PUBLIC IDEAS (1988); Robert Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 YALE L.J. 1617 (1985). See also SAGOFF, THE ECONOMY OF THE EARTH, supra note 71; CHRISTOPHER LASCH, THE TRUE AND ONLY HEAVEN: PROGRESS AND ITS CRITICS 170-225, 530-32 (1991); MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996); ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDI- VIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); ROBERT N. BELLAH ET AL., THE GOOD SOCIETY (1992); JAMES C. CRIMMINS, THE AMERICAN PROMISE: ADVEN- TURES IN GRASS-ROOTS DEMOCRACY (1995); JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY (1983); DANIEL YANKELOVICH, COMING TO PUBLIC JUDGMENT: MAKING DEMOCRACY WORK IN A COMPLEX WORLD (1991). 94 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 in any length. However, deliberative democratic theory has some important implications for the character of the decisionmaking processes that have been adopted by environmental priorities projects. First, it demands a decisionmaking process that is broadly inclusive of affected and potentially affected persons. A process that is built on respect for others' views, a willingness to listen to and consider them, and a desire to reach consensus cannot systematically exclude certain points of view.8 4 In formal procedures, this is what "democratic" means. If simple voting of ballots is not the system, then the alternative process must at least permit that breadth of representation. Moreover, environ- mental priorities projects are advisory in nature, are not elected, and are not formally delegated governmental power. Their only authority is their ability to include a broad spectrum of views and to express them with as much agreement as possible. A five- to-four vote makes constitutional law in the Supreme Court," but such a close vote means that an advisory board is deeply divided. Inclusion requires a transparent process. Both participants and observers should be able to see the process by which deci- sions are reached. Voting for elected leaders is transparent. For an environmental priorities project, transparency applies not only to procedural decisions like membership in the project, but also to substantive decisions like the criteria for ranking risks. Secrecy may have a place in some forms of negotiation," but the participants in an environmental priorities project do not represent, in any formal sense, groups that can negotiate about priorities. A process that gains its legitimacy from the breadth of
84. It is inevitable, especially in view of the controversy over environmental prior- ity setting and comparative risk assessment, that some groups will refuse to partici- pate in the project. Participation cannot be compelled, so inclusiveness means in ef- fect an open door to all points of view. It would be unwise to require full participa- tion, because that would give opt-out groups a de facto veto on the results. Obvious- ly, in some communities, the inability to involve one or a number of groups, despite sincere entreaties, will render the results not politically viable, but that is the nature of any political activity. Environmental priorities projects should focus on developing a process that is attractive to as wide a spectrum of views as possible. 85. Justice Brennan is said to have admonished his law clerks that the most important rule of constitutional law is the "Rule of Five" in Supreme Court voting. 86. Regulatory negotiation has sometimes been carried on in secrecy. As I have described elsewhere, there are good reasons to distrust such a process. John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Ad- ministrative Decisionmaking, 73 IND. L.J. (forthcoming 1998). 1997] PRIORITIES PROJECTS its inclusiveness cannot rely on secrecy to reach decisions. Second, a deliberative discussion is an informed discussion. Thoughtful consideration of the issues offers little added value if it is based on poor or inaccurate information. Information for these purposes includes, for example, quantifiable facts about environmental effects and the costs of pollution. Uncertainty and variability are also facts that need to be fully presented and considered. Values and principles are also relevant information for the participants. Values can be discussed and evaluated, and their relationship to other values can be explored. For example, one cannot sensibly compare a serious widespread problem like air pollution with a less risky (in a quantitative sense) but high- ly localized problem, like hazardous waste sites, without discuss- ing the distributional issues and the values that each problem implicates. Relevant information also includes the consequences of environmental action or inaction, because, without that knowl- edge, choices cannot be evaluated."7 A deliberative democratic process must educate and inform its participants, in addition to providing a forum for their discussions.88 This requires devel- oping information and sharing information: meaningful dialogue requires a common information base, so that participants can operate on an equal footing.89 Third, deliberative discussion and debate is more than simply registering or expressing views in the presence of others. It is a dialogue, a willingness to listen to and consider the available information and other points of view, and to respond to other views candidly. Participants must be willing to change their minds on the basis of the what they learn and what they hear. Deliberative democracy seeks a genuine engagement among the participants. Adversarial decisionmaking, on the other hand, encourages position-taking before a third-party decider (judicial, legislative, or administrative). The logic of the adversarial model forces participants to take extreme positions, and to counter extreme positions with extreme positions, in order to sway the
87. Finkel, A Second Opinion, supra note 52, at 330-31; WILLIAM LEISS & CHRISTINA CHOCIOLKO, RISK AND RESPONSIBILITY 4-6 (1994). 88. REICH, THE POWER OF PUBLIC IDEAS, supra note 83, at 5-7, 124, 137-50. 89. The playing field must be level, but it need not be set at a high degree of detail. In other words, the information necessary to make an individualized risk assessment of the output of a particular factory is not necessary to a priorities pro- ject, as long as none of the participants is operating at that level of detail. 96 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 decisionmaker toward one side or the other. It also discourages participants from taking responsibility for decisions, as their task is to persuade someone else. The acid test of a deliberative process is its ability to confront hard questions. A careful, imaginative investigation of the sources of environmental problems can sometimes reveal under- lying solutions that are simple or that improve everyone's lot. For example, it makes no sense to poison the environment with pesticides to improve the yield on a crop that we have too much of. Likewise, careful planning can sometimes accommodate both an endangered species and its new neighbors. An open dialogue among affected persons is the best way to discover such solu- tions. However, hard questions will remain in the form of choices that implicate the limits on what we can have, either in the sense of restricted amounts of something or of conflicts with other desires." Limits, as Christopher Lasch observed, are the "forbidden topic" in modern political discourse.9' Environmental law is full of such choices, and priority setting highlights them by asking: 'With limited resources, what should we do less of?" Skirting around hard choices by offering appealingly simple solu- tions is a frequent strategy in adversarial situations (for exam- ple, "the smelter's emissions are nothing to worry about" versus "the smelter owner can easily adopt pollution prevention mea- sures"), and in environmental position-taking in general. Deliber- ation is a way to find solutions that all or most can live with, even if it does not resolve the problem simply or to everyone's advantage. Such solutions cannot be reached if the affected per- sons do not frankly acknowledge the difficulties of the problem and work with each other to find a solution. Facing up to hard choices is also important because it involves taking personal responsibility for common problems and for the consequences of the solutions we choose.92 In EPA's public delib-
90. We may want, for example, to return hazardous waste sites to their pre-in- dustrial condition, but we are limited in our ability to do this by technology (certain contaminants cannot be effectively removed from groundwater with today's technolo- gy), by expense (the Treasury could afford this for a few sites, but not all), and by other goals (such a massive public works project that would undoubtedly result in many occupational deaths and fatalities). 91. LASCH, supra note 83, at 22-23. 92. LEISS & CHOCIOLKO, supra note 87, at 4-6; YANKELOVICH, supra note 83, at 24-31; BELLAH, THE GOOD SOCIETY, supra note 83, at 283-86. 1997] PRIORITIES PROJECTS erative process to decide how to handle the outdated smelter in Tacoma, Washington, the difficulty was "to get people to take responsibility, to educate themselves and one another about such a difficult issue.""3 Administrator Ruckelshaus believed that EPA should not decide the fate of the smelter of the citizens of Tacoma who are collectively employed, supported, and harmed by the smelter. Rather, he believed that the citizens must "decide what they want[] for their community ... [and] determine their own future."94 The vice of avoiding hard choices by taking unre- alistic or uninformed positions is not only the instrumental prob- lem of poor decisions. It goes to the heart of citizenship and the recognition of mutual rights and responsibilities. Fourth, for deliberative democratic theorists, the democratic process is transformative. It moves citizens from fixation on their own interests to an understanding of the common good and ulti- mately, to a willingness to accept the common good for themselves. This is not simply surrendering to the will of others, because the common good must take account of each participant's individual interests. Moreover, the common good is not an a fixed position, but can only be known by the kind of deliberative process just described. In operational terms, this means that the participants in a deliberative process should attempt to reach consensus, that is, a resolution that everyone can live with. It is important, however, that perfection not be- come the enemy of the possible. A consensus may be infeasible, in which case the best that an advisory deliberative process can do is to achieve a thorough understanding of relevant informa- tion and the participants' differing views. Such an understanding is not only valuable in itself as part of a democratic dialogue, but it assists the regularly constituted authorities in reaching a final decision. An environmental priorities project that seeks, as most of them do, consensus results among a broad spectrum of persons interested in the environment, is implicitly drawing on the fore- going elements of a deliberative democratic process. The more attention is paid to these elements in the structuring of the pro- cess, the more useful the project will be in stimulating public dialogue on environmental issues.
93. REICH, THE POWER OF PUBLIC IDEAS, supra note 83, at 149. 94. Id. at 149 (quoting former EPA Administrator Ruckelshaus). 98 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
A separate aspect of deliberative democratic theory is a ten- dency to take local as opposed to national decisionmaking as its model.95 Some of this can be attributed to nostalgia for the town meeting of yesteryear, and there is clearly a danger in basing theory on virtues that are to some extent mythological (town meetings tend, for example, not to be very inclusive). 6 But it also has to do with the relative ease with which local decisions can be reached cooperatively and deliberatively, and, conversely, the ease with which deliberative democratic processes can be applied to local decisionmaking. This feature, too, is of direct relevance to the conduct and success of state and local environmental priorities projects. Local problems are, generally speaking, relatively focused. The issues are limited in scope, the sources of the problems are determina- ble, and the solutions correspondingly apparent. The affected public can be readily identified, and those who choose can partic- ipate without undue inconvenience. The participants know each other or know about each other, and they share much common background information about the community itself. Moreover, they have a clear common goal - in this context, a more envi- ronmentally pleasing community - even if they disagree about the means for achieving the goal and about the extent to which it should be pursued in derogation of other goals like industrial development.97 Participants in local decisions also have a clear incentive to cooperate, deriving from the fact that they will have to live with the consequences of their decisions and with each other. This in itself imparts a sense of responsibility for the decision and for the decisionmaking process. The participants will suffer from bad decisions and their future relationships with their neighbors will be strengthened or poisoned by the process they used for reaching those decisions. 8
95. See, e.g., BELLAH, HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE, supra note 83, at 168-86; CRIMMINS, supra note 83; Carol M. Rose, The Ancient Constitution vs. the Federalist Empire: Anti-Federalism from the Attack on "Monarchism"to Modern Localism, 84 Nw. U. L. REV. 74, 94-100 (1989). 96. MANSBRIDGE, supra note 83; BELLAH, HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE, supra note 83, at 205. 97. I do not want to overstate the commonalities within diverse communities, especially where the diversity includes an element of "haves" and "have-nots", or of inclusion and exclusion. Recognizing and acknowledging divisions is a necessary first step to any realistic effort to find common ground. 98. SANDEL, supra note 83, at 314-15, 333-38. 1997] PRIORITIES PROJECTS
In sum, deliberative democratic theory implies a public decisionmaking process that is open and inclusive, transparent to participants and observers alike, educative and informed, deliberative in the sense of promoting a genuine dialogue among the participants, and aimed at reaching consensus or, at a mini- mum, a thorough understanding of issues and positions. The best prospects for implementing a deliberative process are at the local decisionmaking level, where participants are more likely to share information, goals, and a common future.
B. Deliberative Democracy and Risk Assessment Many of the elements of deliberative democratic process have already found their way into the newest thinking on risk assess- ment and management. The recent reports of the National Acad- emy of Sciences and of the Presidential/Congressional Commis- sion on Risk Assessment and Management emphasize the impor- tance of communicating the results and the limitations of risk analysis to the public (i.e., transparency), and of involving the public throughout the process.99 The public also needs to help in defining the problems, developing options for responding to them, and choosing the response actions to be taken. As previ- ously described, the California,"' Ohio,1"' and other state and local environmental priorities projects have made public involve- ment a central element, as does EPA's comparative risk guid- 10 2 ance. All the same, deliberative democratic theory has little intrinsi- cally in common with the technocratic impulses of comparative risk assessment, especially the hard version.' It therefore
99. The most recent authoritative pronouncements on risk assessment, however, insist on the value of public involvement in the risk assessment and management processes. 1 PRESIDENTIAL/CONGRESSIONAL COMMISSION ON RISK ASSESSMENT AND MANAGEMENT, RISK ASSESSMENT AND RISK MANAGEMENT IN REGULATORY DECISION- MAKING 39 (1997). See also UNDERSTANDING RISK, supra note 23; U.S. DEPT. OF ENERGY, RISK ASSESSMENT, MANAGEMENT, AND COMMUNICATION AND PRIORITY SET- TING (January 6, 1995), reprinted in John S. Applegate, A Beginning and Not an End in Itself The Role of Risk Assessment in Environmental Decision-Making, 63 U. CIN. L. REV. 1643, 1675-77 (1995); BUILDING CONSENSUS, supra note 77. 100. See supra note 41 and accompanying text. 101. See supra note 42 and accompanying text. 102. GUIDEBOOK, supra note 7, at 2-6. 103. For example, EPA's guidance views a "negotiated consensus" as the expected way to reach ranking conclusions, but it does not reject voting or even pre-set formu- NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 may seem odd that they should come together in environmental priorities projects and improbable that such a mixture could be successful. One response is that comparative risk assessment and deliberative democracy have a dialectical relationship: they react together and create the projects as a synthesis, and there is no a priori reason that such a synthesis will not be produc- tive.1 °4 Another response is that there is no real conflict be- tween them: good risk assessment requires good public involve- ment. 1°5 Both of these responses are accurate. Deliberative de- mocracy modifies technocratic comparative risk assessment by injecting values and other public-regarding considerations. Con- versely, comparative risk assessment is an analytical tool that highlights unavoidable choices in environmental policy, and good deliberation requires the consideration of such information. It is also the case that the public has much to offer the analytical techniques of risk assessment and risk management, so a method that ignores public input is analytically unsound as well as politically unwise. Another reason for the confluence of comparative risk assess- ment and deliberative democracy is that the practical conse- quence of deliberative democratic theory - a dialogic, nonadversarial approach to public decisionmaking - parallels a current interest in collaborative decisionmaking that arises from entirely different sources. Many observers of current environ- mental regulation have come to the conclusion that the ad- versarial approach is unduly cumbersome and produces ineffi- cient results. One reaction is to develop market-based strategies that give regulated entities more flexibility in complying with environmental restrictions.0 6 Another reaction is collaborative
las. See GUIDEBOOK, supra note 7, at 17-18. 104. The connection between environmental priorities projects and deliberative democratic processes is stressed in Minard, CRA and the States: History, Politics, and Results, supra note 3; Lash, supra note 43, at 69-86; Alice M. Rivlin, Rationalization and Redemocratization: Time for a Truce, in WORST THINGS FIRST, supra note 26, at 21-29; Jim Wilkins, Public Outreach, Feedback & Integration: A Comparative Risk Dialogue -(National Comparative Risk Conference, New Orleans, 1994)
1 7 environmental decisionmaking. 1 By working together, the agency and industry can arrive at protective but more realistic and flexible regulatory requirements, and can do it more quickly. Collaborative decisionmaking has been discussed most exten- sively in connection with proposals for regulatory negotia- tion.08 Regulatory negotiation proponents identify many of the same defects of adversarial decisionmaking that deliberative democratic theorists do, but the collaborative decisionmaking advocates see the problem in instrumental terms. That is, the problem with adversarial regulation is not a democratic deficit, but regulations that are unduly rigid or unnecessarily costly or ineffective because each side was unwilling to listen to the in- formation provided and points of view of the others. Win-win solutions are lost to the struggle for victory by one side or the other. While the goal of dialogue is the same, one of the real weaknesses of regulatory negotiation is its failure to involve a broad cross-section of affected persons.0 9 Such negotiations re- main largely the preserve of the environmental cognoscenti - persons with technical expertise who-regularly deal with each other on these issues. This excludes ordinary citizens who are affected by the decisions or who are simply interested in them. Therefore, while this version of collaborative decisionmaking fails as a device for democratic decisionmaking, it reinforces, on technocratic grounds, the case for deliberative processes. Environmental priorities projects combine technocratic and democratic elements of environmental decisionmaking. Priority setting itself is an essential management tool, and it also reveals underlying values and goals by forcing the recognition of choices among them. Comparative risk assessment is a part of priority setting, but its technocratic, hard version must be moderated by the introduction of narrative, non-quantitative considerations. The deliberative process that most environmental priorities pro-
level, in part on civic republican grounds. See generally Richard H. Pildes & Cass' R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1 (1995). 107. See generally Jody Freeman, Collaborative Government in the Administrative State, 45 UCLA L. REv. 1 (1997). 108. These are reviewed in Applegate, supra note 86 (identifying tle negotiation model as a precursor of the deliberative democracy model of cooperative administra- tive decisionmaking). Other collaborative efforts, such as EPA's Project XL, are dis- cussed in Freeman, supra note 107. 109. See Applegate, supra note 86. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 jects use has both utilitarian and democratic advantages over adversarial decisionmaking.
IV. ENVIRONMENTAL PRIORITIES PROJECTS AS A DELIBERATIVE FORUM The establishment of environmental priorities projects is usu- ally justified by the need to make resource allocation decisions and by the preference for seeking broad public participation in those decisions. As we have seen, however, comparative risk analysis, the method of choice for making priority decisions, has serious limitations that can undermine the credibility of the projects based on it. Because comparative risk analysis and de- liberative democratic theory are separate developments, the weaknesses of comparative risk analysis as a formula for priority setting do not necessarily translate into weaknesses in priorities projects as a deliberative forum for considering environmental issues. In other words, environmental priorities projects have value as a democratic process, whether or not one is willing to credit fully the substantive results of its exercise in comparative risk assessment. The remainder of this essay considers the democratic values of environmental priorities projects, of which there are at least four: they focus attention on environmental issues across a wide spectrum of the population; they provide an occasion for assess- ing and inventorying a state or community's environmental prob- lems; they provide a forum for dialogue and deliberation among interested parties who communicate with each other too rarely; and they can form the basis for building long-term cooperative relationships among persons interested in resolving our shared environmental problems. While the substantive result of a project's deliberations (i.e., its actual list) is not, in this view, of critical importance, the fact that it is a prioritiesproject greatly enhances its value as a deliberative forum.
A. Inclusion Most of the time, the environment per se does not spark broad public activism. As with many public issues, it takes a crisis. Without a crisis, the range of participants shrinks to the "usual suspects," persons sufficiently invested in environmental issues, by ideology and/or employment, to maintain a long-term pres- 1997] PRIORITIES PROJECTS 103 ence. The problem with environmental management as crisis management (wholly apart from the usual criticism that it re- sults in skewed priorities, which is one reason for establishing environmental priorities projects in the first place) is that it places decisions in a heated, urgent, and often polarized context that is hardly conducive to deliberation or thorough consider- ation of other perspectives. Environmental priorities projects are not crises, obviously, but they do constitute a specific event with a specific product. If they are established under the auspices of governmental entities who are seeking priorities advice, they offer in addition a concrete opportunity to influence official decisionmaking. As such, they provide an attractive opportunity to consider environmental problems under less fraught condi- tions than a crisis. If the bad thing about a crisis is the "crisis atmosphere," the good thing about a crisis is that people who would not otherwise do so get involved in public decisionmaking.11 ° Otherwise pas- sive citizens get involved because they feel threatened in some way, and so they see a need and an opportunity to affect envi- ronmental decisions. Again, an environmental priorities project is not a crisis and will not arouse the truly apathetic. But it is a more unique event than routine rules, permits or even legisla- tion, and by its nature it requires a more limited time commit- ment. Environmental priorities projects can also make environ- mental decisionmaking more transparent by gathering facts, discussing values and consequences, and reaching decisions in an open, well-explained process. An environmental priorities project can, in these ways, attract the interest of people or groups who do not ordinarily participate in environmental decisionmaking, those who are disenchanted with the adversarial or "backroom" nature of public debate and decisions, and those who are inter- ested in environmental issues generally but have no clear outlets for their interest. In this way, environmental priorities projects serve the democratic function of inclusion, by expanding the discussion of public issues as broadly as possible.
110. See Donald T. Hornstein, Paradigms, Process, and Politics: Risk and Regulato- ry Design, in WORST THINGS FIRST, supra note 26, at 155-57 (also arguing that the passion and "irrationality" of the reaction to crises are necessary to the continuing political viability of the environmental movement). 104 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
B. Assessment Deliberative decisions need to be informed decisions, and so one of the basic obligations of an environmental priorities project is to develop the information on which priority setting is based. A first step in virtually all environmental priorities projects is to inventory and evaluate the environmental problems in the area under study. The assessment phase often commands a great deal of an environmental priorities project's time and resources, be- cause the inventory represents the universe of environmental problems that the project will consider, and the descriptive mate- rial provides the raw data for setting priorities.'11 The assessment should give participants a clear sense of the breadth of the problems that the state or locality faces, and it should candidly report on the sources, nature, extent, and possi- ble remedies. This enables participants to evaluate priorities in the context of other problems, which is essential to understand- ing the characteristics and seriousness of any single problem." 2 The Carnegie Commission observed that priority setting can be used to "learn the public's 'informed judgment,' rather than to make the relative risk analysis process more responsive to cur- rent crises.""' If public expectations are unrealistic, perhaps it is because people are unaware of the consequences of their posi- tions. Experience with deliberative processes shows that the public is capable of and prepared to take responsible action when it knows what the real choices are.' An assessment or inventory may be particularly informative because such documents had not previously existed. It is the rare state or municipality that has integrated its consideration of environmental problems. More often, the problems are divided among agencies (e.g., pollution abatement versus wildlife and conservation) or among bureaus within agencies (e.g., air versus water versus solid waste). Moreover, if the inventory is the prod-
111. See, e.g., MINARD ET AL., FORCE FOR CHANGE, supra note 3, at 13-14, 68-72; GUIDEBOOK, supra note 7, at ch.3. 112. Omenn, supra note 26, at 31; Finkel, A Second Opinion, supra note 52, at 330. 113. RISK AND THE ENVIRONMENT, supra note 77, at 89. 114. Applegate, supra note 54, at 1653-54 (recounting the experience of a citizens advisory board for a former nuclear weapons facility); JOHN DOBLE & JEAN JOHNSON, 1 SCIENCE AND THE PUBLIC: A REPORT IN THREE VOLUMES 5-18 (Kettering 1990). 1997] PRIORITIES PROJECTS
uct of an inclusive process, as it should be, it will reflect the concerns and observations of groups who do not ordinarily partic- ipate in environmental decisionmaking. Disenfranchised groups often feel that their problems are ignored - which is a central motivation for the environmental justice movement - and so the inventorying process offers both an opportunity and an incentive to become involved. As a collateral effect, the inventory may also stimulate interest in the project by highlighting conditions that are not generally known, or by revealing the sheer number and range of environmental problems that face a state or community. Finally, given its audience, the assessment should be present- ed in a form suitable for non-experts. It should explain technical concepts, like risk, that are often impenetrable to lay people. In this sense, too, information reinforces inclusion by reducing the barriers to entry into a technocratic regime.115 The level of de- tail should correspond to the importance of the issue, the uncer- tainty and variability of the data should be clearly described, and alternative expressions of risk (for example, individual risk versus population fatalities) should be presented.1 '6 In this way, environmental priorities projects, because they require information gathering as a first step, make informed decisionmaking possible. They can help to level the playing field between lay and expert participants by providing a common base of knowledge, which in turn becomes the foundation for genuine dialogue.
C. Dialogue and Deliberation As the title of this essay suggests, environmental priorities projects literally create a forum. They provide a place where a wide range of interested persons can come together to work through environmental issues. In this forum, the casually inter-
' ested person can work with the regular advocate, government officials can work with private citizens, experts can work with non-experts117 (or experts in other fields), and elected officials can work with their constituents. Further, this can all take place outside the usual channels dominated by invested actors, ad-
115. Wagner, supra note 21, at 1674-77. 116. Finkel, supra note 18, at 350-53. 117. See RISK AND THE ENVIRONMENT, supra note 77, at 89-90. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 versarial proceedings, and crises. Existing institutions tend to be limited to technical or political insiders, so environmental priori- ties projects expand access to a wider group. It works in reverse, as well. Technical experts, regulators, and even elected officials often feel isolated from the general public by the nature of their jobs or by the need to render decisions." 8 Environmental priori- ties projects can be an opportunity for them to work with the public toward a common purpose rather than in an adversarial setting. Priorities projects encourage deliberation in several ways. Priority setting forces the recognition of choices, but avoids the adversarial nature of a particular dispute. A deliberative or dia- logue process is easy to advocate in a contested situation, and it can be successful, but it is far easier when the consequences for any individual are less immediate. People can more easily step back and look at problems in new ways without fearing that they are weakening their positions in a particular dispute. The under- lying question posed by comparative risk assessment - "What should we do to make our lives safer, given limited governmental resources to accomplish this?" - is a critical one for society, and environmental priorities projects can provide a framework and forum for answering it.' Most important, priority setting gives shape and structure to discussions. A brainstorming session on environmental problems may be a pleasant enough way to pass a few hours, but without a product it is unlikely either to garner much interest or to reach any useful conclusions. The requirement to produce a set of pri- orities imposes a structure on discussions - assessing informa- tion, ranking results, etc. - and it uniquely forces actual en- gagement with the issues. Without forcing choices, none will be made and all sides will resort either to disagreement or to agree- ment on platitudes. Priority setting "rubs our noses in the choic- es we must make to solve one problem or another,"'12 and thus forces us to confront our value choices. As this essay has suggest- ed, a soft or modest version of comparative risk assessment does this better than the doctrinaire quantitative version, but the
118. See Michael P. Healy, The Effectiveness and Fairness of Superfund's Judicial Review Preclusion Provision, 15 VA. ENVTL. L.J. 271, 343-44 (1995-96). 119. Finkel, supra note 18, at 347-50. 120. Anderson, supra note 25, at 78. 1997] PRIORITIES PROJECTS 107 utility of priorities as a way to get to the hard questions is clear. The existence of a common pool of information demands that participants make arguments based on that information instead of simply positioning themselves on an issue. Participants can explain why they take the position they do, and those reasons are subject to challenge. As Mark Sagoff has said, citizens are not simply collections of wants; they should act on principles, and principles (unlike mere preferences) are capable of being challenged and supported.'21 The challenge and response is the essence of dialogue. One study of environmental priorities pro- jects reported, "[vlirtually everyone we interviewed said that the effort of ranking risks (or risk management priorities) forced the participants to deal with the data and their values in a powerful and productive way."122'
D. Consensus The willingness to confront hard questions makes reaching consensus harder, of course. But, just as a priorities project chal- lenges participants to work with the available information, seek- ing consensus challenges participants to look for common ground and areas of agreement. The search for agreement is a good way to test the limits of positions and the role of values. Even if con- sensus is not reached, areas of agreement and disagreement can be identified and reasons given. A project in which the partici- pants simply "talk[] their way through the ranking[,] debating the reasons for calling a given problem a higher or lower risk""' improves the deliberative process and helps governmen- tal decisionmakers to make more informed decisions. As with all of the elements of deliberative democracy, the process for reach- ing results can be of greater long-term importance than the par- 124 ticular outcome. [W]hat is needed most is simply gathering people together to
121. SAGOFF, THE ECONOMY OF THE EARTH: PHILOSOPHY, LAW, AND THE ENVIRON- MENT, supra note 74, at 51. 122. MINARD ET AL., A FORCE FOR CHANGE, supra note 3, at 4. 123. Minard, CRA and the States: History, Politics, and Results, supra note 3, at 53. 124. The director of the California Comparative Risk observed, 'The primary lesson I learned as Project Director is that the end result is not as important as the means." TOWARD THE 21ST CENTURY, supra note 41, at 91. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
make the choices and talk about their conclusions, exposing their assumptions and their wishes to public scrutiny. Even if such a process produced conflicting results, EPA, the public, and Con- gress would learn from the experience.'25 In sum, the real value of an environmental priorities project is in "working through" the issues,"' even if the result is limited by lack of consensus or by the nature of comparative risk assess- ment. The process of information gathering, followed by dialogue and guided by the effort to find common ground, will have its great- est value if it creates the groundwork for collaborative environ- mental decisionmaking in the long term. Acquaintances and relationships outside one's own group, formed in the course of a collaborative decisionmaking exercise, make it possible when a particular issue arises in the future to know where to turn and what one will find there. The Maine Environmental Priorities Project began as an effort to find a better way to make environmental decisions. Six years and one comparative risk project later, many of these same leaders are seeking to institutionalize information-based-consensus-driven processes for environmental management in Maine. Along the way, they have built relationships that have spawned a variety of other actions and opportunities for, as one project participant states it, "building a vital center" among business, environmental, and government communities. 2 ' Government officials and industry should know that their envi- ronmentalist critics are thoughtful and concerned with the good of the community as a whole, and environmentalists should know that government officials are genuinely trying to do their best under often difficult circumstances. When we only engage with people who already have our own perspective, we tend to demonize others, and that is only rarely fair. Building trust and a habit of cooperative environmental decisionmaking takes a long time and repeated interactions, but an environmental prior- ities project can be the first step down that road.
125. A NEW DIRECTION FOR EPA, supra note 32, at 144. 126. YANKELOVICH, supra note 83, at 91. 127. Green Mountain Institute for Environmental Democracy, Lessons from the Tor- toise and the Hare: MEPP Crosses Another Finish Line, 2(3) SYNERGY 1 (Green Mountain Inst. for Envtl. Democracy, May/June 1997). 1997] PRIORITIES PROJECTS
V. CONCLUSION Environmental priorities projects have their origins in two very different impulses: a technocratic desire to establish priori- ties among environmental problems by quantitatively assessing the relative risks that they pose, and a democratic desire to achieve more inclusive, more informed, and more deliberative environmental decisionmaking. These impulses have no organic connection, but combined they can improve each other. The tech- nocratic element is enhanced by introducing a wider range of considerations than comparative risk assessment demands, and the democratic element is enhanced by using priorities to inform and structure the dialogue. Public involvement is not, as the traditional justification for environmental priorities projects suggests, just an element (albeit an important one) in what is essentially a comparative risk exercise.'28 Rather, priorities projects are public involvement, and, given the difficulties of comparing risks, public involvement is indeed their one entirely reliable outcome. Environmental priorities projects can productively address the real problem of allocating scarce environmental protection resources, they can promote informed, deliberative discussion of environmental issues, and they can build a foundation of cooperative long-term relation- ships. Regardless, therefore, of the limitations of the comparative risk assessment formula in producing a definitive list of priori- ties, environmental priorities projects provide an invaluable democratic forum for deliberating public policy.
128. See, e.g., MINARD ET AL., FORCE FOR CHANGE, supra note 3, at 10 (suggesting that public involvement is important, but also "extremely difficult, time consuming, expensive, and problematic"); Wilkins, supra note 104, at 2-7 (recognizing need for dialogue, but treating it as one element of a comparative risk project).
PRACTITIONER'S GUIDE
THE USE OF EXPERTS IN ENVIRONMENTAL LITIGATION: A PRACTITIONER'S GUIDE
by Kim K Burke'
I. INTRODUCTION
The effective use of experts in environmental litigation has perplexed trial lawyers since environmental litigation became popular in the 1970s. Because the substantive issues in environ- mental litigation are often highly technical and involve a compli- cated series of federal and state statutes, traditional trial law- yers have found themselves confounded with the task of distill- ing these complicated subjects to simple terms and conveying them in an effective manner to either judge or jury. This article is not intended to represent the only or necessarily the best approach to the effective use of experts in environmen- tal litigation. This article has a practical focus. It is not a hypo- thetical dissertation, nor is it a scholarly case law analysis. It is an environmental litigator's "To Do" checklist that is intended to evoke thoughtful reflection by trial lawyers during the pretrial phase, stimulate discussion about the role of experts, and be helpful in advancing the level of competency of trial lawyers who use experts in environmental litigation. The article will assist an environmental litigator in coordinat-
1. Mr. Burke is a partner in the Cincinnati office of Taft, Stettinius & Hollister. He practices in the Litigation Department and concentrates in environmental law and the regulation of hazardous substances. He has represented clients in hundreds of Superfund, RCRA and environmental cleanup/enforcement matters in more than twenty-six states. He obtained his J.D. degree from the University of Pittsburgh School of Law in 1980, and his B.S. degree in Education from Indiana University of Pennsylvania in 1977. The author acknowledges and appreciates the assistance provided by Charles H. Pangburn, III, Robert A. Bilott and J. Steven Justice, colleagues in the environmental litigation practice group at Taft, Stettinius & Hollister. 112 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ing strategic planning, tactical implementation, and trial skills with client objectives. While this article is directed primarily at those members of the legal profession responsible for the trial of environmental cases, it also has obvious application in non-envi- ronmental contexts. As will be apparent from the emphasis on the pretrial prepa- ration of experts, the reader will undoubtedly conclude that this author's approach to successful environmental litigation focuses upon thorough and well-planned trial preparation. In fact, thor- ough preparation for trial, whether it be in the context of prepa- ration of either expert or factual witnesses, is ninety-five percent of the battle toward securing the best result for your client. The trial itself, often cause for great anticipatory anxiety among law- yers, will become anti-climatic. If you adequately prepare your case, both from a factual and expert's standpoint, and are pre- pared to handle unusual circumstances on your feet (which un- doubtedly will arise during trial), you can provide no better ser- vice to your client. This article is not intended to provide gimmicks or tricks for winning environmental lawsuits with fancy experts. Much of what will be covered in this article will be intuitive to the sea- soned trial lawyer. But, surprisingly, many trial lawyers do not take the time to adequately plan the effective use of experts in environmental litigation. The expert can be one of the most po- tent weapons in the trial lawyer's arsenal. Ineffective or incom- petent use of the expert can lead to disaster. Preparation for trial includes not only a thorough command of the statutory principles to be applied, but also an understanding of the playing field which will govern the trial of the case. Exem- plary pretrial preparation of the case is a talent usually not lost on opposing counsel or his client. For that reason, a trial lawyer can best serve his client through dedicated and effective trial preparation because it may very well lead to a favorable settle- ment of the action short of trial. I wish to emphasize, however, one common thread that runs through my trial preparation in every case: I always assume that the case will be tried to judg- ment. I therefore subscribe to the philosophy of "keeping my eyes on the prize." The prize in each case needs to be defined early on, in consultation with the client, as the primary objective at trial. Neither settlement negotiations nor other distractions should derail a trial lawyer's preparation for trial. He or she 1997] EXPERTS IN LITIGATION must be ready to try the case when the judge is ready, and not when the attorney is. The introduction of experts into the trial preparation process as early as possible is recommended. The reader will find that the effective use of experts from early in the discovery process (including at times even before a complaint is filed), will guide the focused development of the claims to be asserted or the de- fenses to be raised and the shaping of the evidence in a format that most effectively conveys your position to the trier of fact.
II. TYPES OF ENVIRONMENTAL LITIGATION
Environmental litigation can include enforcement actions, citizens' suits, cost recovery actions,2 toxic tort claims,' criminal prosecutions, administrative hearings, challenges to rules and regulations, and claims for emergency or injunctive relief. The use of experts in each of these areas is beyond the scope of this article. Therefore, this article will concentrate upon the use of experts in cost recovery litigation, because many lawyers find themselves (whether they are typically counsel for the plaintiff or the defense) serving in the role as both the defender of a claim for cost recovery and as a plaintiff seeking to spread the pain when the client has incurred response costs or has been sued in a cost recovery action. Cost recovery litigation involves the assertion of claims by a party that has expended money to investigate or clean up an environmental problem.4 Cost recovery litigation inherently in-
2. CERCLA authorizes private parties who have incurred cleanup costs to bring private "cost recovery actions" against other liable parties to recover cleanup costs. Richard G. Stoll & Karen M. Wardzinski, A "CERCLA-Quality Cleanup". The New Path to Righteousness (And Recovery) for Volunteers, in RCRA VERSUS CERCLA - CHOICE AND OVERLAP 1992, at 141, 202-03 (ALI-ABA Course of Study: Hazardous Wastes, Superfund, & Toxic Substances No. C778, 1992). Specifically, section 107(a) of CERCLA provides that parties may be liable not only for governmental response costs but also for "any other necessary costs of response incurred by any other per- son . . .This language has been interpreted by numerous federal courts to create a private cause of action for cleanup cost recovery". Id. (footnotes omitted). Section 113 of CERCLA, 42 U.S.C. § 9613 (1994), authorizes responsible parties to bring contribu- tion actions against other responsible parties. 3. The term "toxic tort" or "environmental tort" refers to "situations involving allegations of injury to persons or property caused by exposure to environmental contaminants." 4 SUSAN M. COOKE, THE LAW OF HAZARDOUS WASTE § 17.01 (1997). 4. "A private party frequently performs a waste site cleanup with an eye to 114 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 volves complex scientific issues that bear upon causation of the environmental damage. Traditionally, the scope of a court's equi- table powers, depending upon the state in which the claim is asserted, the court (state or federal), and the style of the claim for relief, includes the ability to apportion costs and damages among those responsible for the contamination, based upon such factors as the court deems "equitable and just."'
III. THE ROLE OF THE TRIAL LAWYER IN EXPERT SELECTION
In this age of downsizing corporations and the greater use of in-house corporate counsel to serve as trial attorneys, friction is more likely to develop between in-house and outside counsel concerning the way in which a case is prepared for trial. If you are the trial lawyer selected as outside counsel to handle a cost recovery case, you, not the client, not the in-house counsel, and definitely not the environmental consultant, are ultimately re- sponsible for the selection and preparation of the experts for trial. This does not mean that the expert selection process should go forward without any input from the client. In fact, the selec- tion of an expert should not occur without the client's involve-
recovering part or all of the costs from other liable parties. Where the performer is unable to convince others to pay voluntarily, the performer may bring 'private cost recovery' litigation under CERCLA'. Stoll et al., supra note 2, at 141. Private cost recovery actions arise in two basic contexts: The first involves EPA-directed cleanup actions. EPA often targets a limited number of companies for negotiations and/or litigation even though many other companies may have liability at the site. The targeted companies, unhappy with the prospect of absorbing the full cost of multimillion-dollar cleanups, often seek recovery from the remaining liable parties. The second context involves cleanups performed without EPA's supervision. Many companies, recognizing the broad reach and cost of CERCLA cleanups, are choosing voluntarily to clean up sites themselves - before EPA steps in. Other companies are cleaning up sites because a state government is demand- ing or encouraging it. Id. This type of "voluntary" cleanup has resulted in the rapid proliferation of cost re- covery litigation throughout the United States. Id. 5. Although CERCLA § 113 (0(1), 42 U.S.C. § 9613 (f)(1) (1994), requires courts to allocate costs of cleanup between responsible parties "using such equitable factors as the court determines are appropriate," this section does not limit courts to any particular list of factors, nor does the section direct the courts to employ a particular test. Environmental Transp. Systems, Inc. v. ENSCO, Inc., 969 F.2d 503, 507-08 (7th Cir. 1992). 1997] EXPERTS IN LITIGATION ment in the selection process. Therefore, I highly recommend that outside counsel keep the client involved in and informed of the process for selecting experts. The client will better under- stand why a particular approach has been taken, and should at least understand why it is paying significant fees for the engage- ment of the expert.
IV. THE DIFFERING RESPONSIBILITIES OF THE TRIAL LAWYER FOR THE PLAINTIFF OR DEFENDANT
Your responsibilities as a trial lawyer in selecting experts depend upon whether you are representing the plaintiff or the defendant in a cost recovery action. In some cases, you will be called upon to represent both, that is, represent the defendant in a cost recovery case and, shortly thereafter, represent the same party as plaintiff in bringing a third-party complaint for contri- bution or indemnification against another party. It is particu- larly important that trial attorneys, serving as both defense and third-party plaintiffs counsel in the same case, not take inconsis- tent legal positions that may. return to haunt the client at trial. The trial attorney handling the cost recovery litigation must have a thorough grasp of the statutes, regulations, and the cases interpreting the law before asserting affirmative defenses and otherwise responding to a complaint, or before framing a com- plaint. For purposes of this article and for ease of uniformity and application, we will concentrate upon cost recovery actions that are initiated in federal district courts. Typical cost recovery ac- tions are initiated under the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA").' Trial counsel immediately face perplexing legal issues when they are called upon to represent a defendant in a CERCLA cost recovery action. For example, if the plaintiff (who is also a responsible party) has pled that the defendant (whom you represent) is liable under CERCLA Sections 107(a)7 and 113(f),8 defense counsel may be faced with the dilemma of deter- mining, in the context of targeting third-party defendants
6. 42 U.S.C. §§ 9601-9675 (1994). 7. Id. § 9607(a). 8. Id. § 9613(f). NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 against whom the defendant may have claims, whether it is bet- ter to move to dismiss the section 107 claim on the basis that potentially responsible parties may not assert claims under sec- tion 107(a), and may only assert claims for contribution under section 113(f)(1). Of course, moving to dismiss a section 107 claim on these grounds limits trial counsel in cost recovery cases to asserting against third-party defendants a contribution claim under section 113(f)(1),' and the ability (if it ever existed) to impose joint and several liability upon the third-party defen- dants may be lost forever."° Trial counsel for the defendant must immediately determine, however, upon receipt of the complaint, whether his client may have an option to move to dismiss certain claims under Federal Rule of Civil Procedure 12(b)(6)." The trial counsel must thor- oughly consider the impact of moving to dismiss. Will the motion to dismiss affect the ability of the client to assert a third-party claim? Will trial counsel for the defendant be viewed as taking inconsistent positions? Will defense counsel effectively be able to spread the pain to other potentially responsible parties through third-party practice? Does defense counsel forfeit the ability to obtain a complete dismissal of the case by not aggressively mov- ing under Rule 12(b)(6) to dismiss all of the claims in the com- plaint? Again, the responsibilities of the trial attorney are altered depending upon the trial attorney's role in a defensive or prose- cutorial position. Trial planning begins on the day trial counsel is first engaged.
V. THE TRIAL LAWYER'S DUTY TO OUTLINE CASE PREPARATION
Many environmental trial lawyers fail to understand the im- portance of outlining the preparation of the case from the time
9. Id. § 9613(f)(1). 10. See, e.g., United States v. Kramer, 757 F. Supp. 397, 414 (D.N.J. 1991) (hold- ing that "the liability of initial defendants sued by the Government under § 107(a) is .. . joint and several, but . .. the liability of third-party defendants is several only"). 11. Under Federal Rule of Civil Procedure 12(b)(6), a defendant may, by motion or in its responsive pleading, assert that the plaintiff's cause of action against it "fails to state a claim upon which relief can be granted". FED. R. Civ. P. 12(b)(6). 1997] EXPERTS IN LITIGATION 117
they are first engaged. Before any responsive pleadings are filed, the trial lawyer must have a command of the facts. In many cases, collection of the facts will take several months. Therefore, the trial lawyer must do whatever is possible to assure that re- sponsive pleadings will give the client the flexibility to alter its position as the facts become known. Immediately after an initial briefing of the facts by the client and some preliminary inter- views of witnesses, the trial lawyer should develop a preliminary plan for navigating the case from responsive pleadings, through selection of the experts, to interrogatories and document re- quests, through the maze of depositions of both fact and expert witnesses, through the filing of dispositive motions on summary judgment, and into the actual trial. Trial lawyers must have vision. That vision must develop from the first few weeks of the engagement. In short, trial attorneys must be able to see beyond the last-filed pleading.
VI. TIMING OF RETENTION OF EXPERTS
The engagement of experts should occur as early as possible in the case. Often, I will engage experts before any responsive pleading is filed and before any complaint is filed on behalf of a client. Why? As trial lawyers, we have not cornered the market on creative ideas, and well-seasoned experts often see that which we do not. Trial lawyers must give the expert a sense of ownership in the case. Experts who are engaged at the last minute to render opin- ions not only view themselves as hired guns, but often appear as such to the court. On the other hand, experts who are hired ear- ly in the case, who become intimately familiar with the facts as the case develops through discovery, develop a vested interest in the client's cause that leads the expert to explore and develop creative ways of presenting evidence. The trial lawyer, in consul- tation with the client, retains the ultimate responsibility for making the decisions as to which investigative leads to pursue. The experts, on the other hand, if involved early in the game, have greater opportunity to reflect upon the best way to present the evidence. Experts are professionals who have burdensome schedules, like trial lawyers, and appreciate the opportunity to l ave time NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 for adequate preparation. As will be covered below, this should not be viewed as a license for the expert to "run the meter" throughout the entire litigation. Rather, it gives the expert an opportunity to understand the issues in the case and, as the discovery process proceeds over a six to eighteen month period, to offer suggestions for improving the collection of information, impeaching the credibility of opposing witnesses and developing a true sense of membership on a winning team. While experts should be retained as early as possible, the need may arise in many cases to change the structure of the expert team as the case proceeds to trial. Theories change, claims are dismissed, facts are learned which torpedo certain approaches, and experts may be released from their engagement. Trial coun- sel, who present a coherent plan to the client concerning the manner in which the expert will be utilized and who demon- strate to the client the value added by the expert's participation early in discovery, are more likely to achieve a favorable result for the client.
VII. DIFFERENCES BETWEEN EXPERT WITNESSES AT TRIAL AND EXPERT ADVISORS TO TRIAL COUNSEL
Trial counsel should not initially retain any expert with a commitment that the expert will be called to testify at trial. This is a frequent tactical error. Quite simply, trial counsel will not know until fairly late in the discovery process which experts he will call during his case-in-chief at trial. This decision also avoids the problem of being required to disclose, in response to interrogatories, the names of trial experts early in discovery. Under Federal Rule of Civil Procedure 26,12 opposing counsel may not discover the opinions of experts who are retained by
12. Federal Rule of Civil Procedure 26(b)(4)(B) provides that: A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be 'called as a witness at trial only as provided in rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other-means. FED. R. CIV. P. 26(b)(4)(B). 1997] EXPERTS IN LITIGATION 119 trial counsel in anticipation of litigation, but are not to testify at trial, except under exceptional circumstances. Therefore, trial counsel should carefully monitor communications to assure that experts are not referred to as "testifying experts" or "trial ex- perts". Rather, trial counsel should initially retain experts for the purpose of advising trial counsel on the best way to prepare the case. As trial preparation proceeds, trial counsel can evaluate further how the expert fits into the overall trial plan and wheth- er this expert should eventually be named as an expert who will testify at trial. Once that determination is made, and consistent with any case management order or standing orders of the court, disclosure of the expert's identity, opinions, curriculum vitae, and publications may be required. 3 Trial counsel should hold as extremely confidential the identity of its experts until such time as it becomes tactically advantageous to designate trial experts and release the identities. This typically does not occur until the opposition is ready to negotiate seriously about settlement (usu- ally at the end of factual discovery). Sometimes settlement nego- tiations will not take place until following the depositions of the expert witnesses, and for that reason, trial counsel should keep the expert's identity confidential and not disclose it until re- quired under the rules of court or the case management order. Unless necessary, other experts who are held in reserve to serve as advisors to trial counsel should never be identified to opposing counsel. An example of this necessity would be where an expert is engaged for the sole purpose of advising the environ- mental trial lawyer on the technical deficiencies of a laboratory analysis of environmental samples, and trial counsel wants to have the expert present at the deposition of the laboratory direc-
13. Federal Rule of Civil Procedure 26(a)(2)(B) provides that: Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to. a witness who is retained or specially employed to provide expert testimony in the case . .. be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhib- its to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. FED. R. Civ. P. 26(a)(2)(B). 120 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 tor to assist in framing questions for the opposing ex- pert/witness. This is the perfect example of an expert engaged for the purpose of advising trial counsel, but who will not be called as an expert at trial. Nevertheless, opposing counsel will be able to obtain significant information concerning your advisor once his/her identity is known. Therefore, trial counsel who is preparing for depositions has some available options, as set forth below, to consider when deciding to have advisor experts present at depositions.
VIII. THE EXPERT SELECTION PROCESS
The trial counsel's selection of the experts that he intends to call as trial witnesses is probably one of the most important decisions impacting the probability of winning the case at trial. Experts can make your case; experts can kill your case. By the time you get to the point of selecting experts, some of whom may be used at trial as witnesses, you should have a fairly good com- mand of the manner in which you intend to present your case-in- chief at trial. The following is a suggested framework for the process of selecting experts in environmental cost recovery litiga- tion.
A. Visualizing the Trial
From the time trial counsel is first engaged to represent a client in a cost recovery case, counsel must begin the process of visualizing the trial of the case. Trial attorneys are tempted to think simply about the next step in the process (interrogatories or document requests) and not to think about how the evidence is going to be presented at trial. While I have stated this recom- mendation before in this article, it is worth repeating again: the trial attorney should keep his or her "eyes on the prize," namely, the primary objective at trial. In order to focus upon the prize, trial counsel must consider how the evidence will be presented at trial. The attorney should already have an idea of the fact wit- nesses counsel intends to call, the experts who will be called to testify, and the way in which the evidence will be presented. Trial counsel may already have ideas concerning demonstrative evidence that will assist in the presentation of the complicated 1997] EXPERTS IN LITIGATION concepts to the judge or jury, or both. Bear in mind that some legal issues are reserved for determination by the judge, while others will remain for the jury, and the trial attorney should be prepared to marshal forward evidence that is tailored to the particular trier of fact. psychologyThe psychology of visualizing the trial is not unlike the sports used when Olympic and professional athletes are urged by sports psychologists to visualize, with their eyes closed, the particular athletic event and how they will be performing at each stage in the event. For example, in the area of professional cycling, sports psychologists recommend that the athlete visual- ize a strategy at each point in the competition, how the athlete will feel (physically and mentally), and the options the athlete will have for placing himself or herself in the best position to win or place high in the standings. This same psychology applies to trial lawyers. Trials are competition. You are trying to win. You have identified your primary objective. You need to attain it. Therefore, you should spend time visualizing how the evidence will play, who will testify, in what order, and the complications that could result from the presentation of certain testimony. The weaknesses in your case, the effectiveness of cross-examination, and the manner in which your experts testify must be visualized. Once you have visualized the presentation of the evidence, memorialize it in a written trial outline. I typically use charts that show the witnesses, the claims for relief, the elements of each claim for relief, and how each and every element of the claim for relief or defense is going to be established by witnesses. I do not wait until discovery is complete to initiate this exercise. I begin this process as soon as I am engaged as trial counsel in the case. After preparing your written trial outline of how your case, including cross-examination of the opponent's witnesses, is to be presented, it is time to test the waters. Confer with your trusted legal colleagues (of course, only those with whom you practice law to assure protection of the privilege) concerning the way in which you are going to present the case. Test your theories. Test them early. 122 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
B. Identifying Areas Where Experts Can Fill in Factual Gaps
Often the trial attorney's initial investigation will determine significant factual gaps in the presentation of the evidence dur- ing the case-in-chief. For example, trial counsel may lack evi- dence concerning how or when releases of hazardous substances or contaminants occurred. Counsel may only know that the con- taminants are located in environmental media (soil, sediments, ground water), and counsel may have no admissible evidence concerning the source of the contamination or the time frame of its release. This represents a perfect opportunity for experts to fill in the factual gaps in the presentation of the case. Assume that you face a situation in which multiple owners of the same chemical facility have made claims against each other regarding the cleanup of contaminants found on the property. Several of the owners may be successive owners; others may own different portions of the site. No reliable factual evidence, howev- er, has been developed to date from eyewitnesses who saw re- leases, observed the dumping of chemicals, or otherwise can establish when contaminants were released. This is the proper place for an expert. First, you may be interested in identifying a particular chemi- cal fingerprint in the contaminated media. 4 Therefore, you be- gin searching for an expert who has considerable expertise in the area of chemistry. There is no question that analytical chemistry is a very fine science, where the more learned experts can distin- guish between the chemical signatures of certain compounds and, in some cases, even give approximate dating as to the age of the chemicals in question. Experts derive some of this informa- tion from the known degradation products of the chemicals in the environment, the availability of aerobic or anaerobic condi- tions that may be conducive to degradation of the chemical, and peer reviewed studies that have documented the amount of time
14. "Chemical fingerprinting" refers to "the identification of unique properties intrinsic to a chemical substance by a combination of analytic techniques". Rosalyn K. Myers, Advanced Chemical Fingerprinting in Hazardous Waste Liability Under CERCLA, 6 FORDHAM ENVTL. L.J. 253, 286-87 (1995) (footnotes omitted). 'The term 'fingerprint', often used interchangeably with the term 'signature', has also been used to refer to petrochemical characteristics expressed in graphs, underground chemical migration patterns called plumes, and the "tracers" left behind in the plumes". Id. 1997] EXPERTS IN LITIGATION that it takes for degradation to occur. 5 It would not be unusual for a very well-respected chemist to testify that the presence of certain "daughter" compounds, which represent degradation products of the principle contaminant,16 indicate that the con- taminants had been in the ground for a specific range of years. Although successive owners of the property may have used the same compound, the expert may be able to testify that the chem- icals that caused the contamination could only have originated with the owner of the property during a certain time period. Thus, an expert who can offer such an opinion can "fill in the factual gaps" left open by the factual witnesses. Similarly, an expert in aerial imagery and remote sensing may be able, from a review of stereographic aerial photo pairs taken over a series of years, to identify the visual signature of disposal activities on a particular piece of property. Aerial photo- graphs provide extremely precise dating of the activities in ques- tion, and they challenge with great success the often faded recol- lections of factual witnesses. 7 Counsel can also use aerial imag- ery in a very persuasive manner to impeach the testimony of witnesses who claim that they specifically remember a disposal
15. See, e.g., Daniel Nachman, Natural Remediation: A Smart Approach to Clean- up, in MOVING AWAY FROM PUMP-AND-TREAT, 3-4 (13 No. 2 Envtl. Compliance & Litig. Strategy No. 3, 1997). The author explains that: Natural degradation has been shown to be influenced by a number of biologi- cal, chemical and biological factors, such as whether the groundwater is oxidiz- ing or reducing, whether dissolved electron acceptors (such as iron, sulfate and nitrate) are available, whether other carbon sources the bacteria can use as food are present and whether nutrients (such as potassium, nitrogen and phos- phorous) are available. By measuring changes in electron acceptors, nutrients and degradation by-products (such as carbon dioxide, hydrogen sulfide and methane) at different locations relative to a contaminated plume, investigators can gather evidence to determine if biodegradation is occurring. Id. 16. For more information about daughter compounds, see George M. Newcombe, Trial Strategy in Litigating Contaminated Property Disputes: Use of Experts and Demonstrative Evidence, in STRATEGIES FOR LITIGATING CONTAMINATED PROPERTY DISPUTES, at 315, 334 (PLI Litig. & Admin. Practice Course Handbook Series No. 425, 1991). 17. Joseph E. Lees, Technological Breakthroughs May Usher in Era of Change, in ADVANCED MEASUREMENT TECHNIQUE, 1-2 (13 Envtl. Compliance & Litig. Strategy No. 3, 1997) ("Aerial photographs are used routinely in the Superfund program and for baseline environmental studies to determine historical land use, such as the loca- tion of old impoundments or processing units, to guide sampling and site character- ization."). 124 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 activity occurring during a certain time period. The imagery interpretation expert can show the absence of disposal activity at the time remembered by the now-embarrassed fact witness. Op- posing counsel is often sent scrambling for a way to resurrect the credibility of his witness, but the persuasive value of the visual medium is often the winner when compared with the vagaries of the human memory. Here again, the expert can fill in the factual gaps and assist trial counsel in presenting his client's version of when certain activities occurred on the site. A final example of how experts can fill in the factual gaps occurs in the discipline of fate and transport of environmental contaminants. Fate and transport involves the determination of how chemicals have migrated into the environment and how the contaminants have been transported to a particular environmen- tal medium or receptor." Sophisticated hydrogeologic experts and engineers can sometimes take a simple statement (e.g., the fact witness testified that chemicals were poured into the floor drain which drains to the sewers leading to the off-site municipal wastewater treatment plant) and, by investigating the construc- tion of the sewers and ground water flow, determine that a pref- erential pathway for contaminant transport exists in the pea gravel backfill of the sewers. Because of the age of the sewers, the expert may testify that he has identified, through remote miniature camera investigation of the sewers, that cracks and fissures were present in the sewers allowing contaminants in the sewers to escape into the pea gravel backfill. The expert may then conclude that the contaminants placed in the sewer drain migrated by a preferential pathway (the very porous pea gravel backfill) to another environmental medium. Thus, once again, the expert can assist in filling in the factual gaps and establish- ing the causal relationship between what appeared to be a fairly innocuous disposal of chemicals to the local sewer district into contamination of a public drinking water supply.
18. See Hatco Corp. v. W.R. Grace & Co.-Conn., 836 F. Supp. 1049, 1060-61 (D.N.J. 1993) (citations omitted) (stating that an analysis of fate and transport "is crucial to determining which of a number of activities contributed to the contamina- tion at the site. If the activities of either party transport a contaminant from the location in which the other party placed it to a different location ... the party re- sponsible for the transport caused the contamination"). 1997] EXPERTS IN LITIGATION
C. Validation of Fact Witness Testimony With Experts
Expert witnesses, as mentioned in the preceding section, can recreate history. In addition, they can validate (or impeach) the testimony of factual witnesses. For example, in your case-in- chief, if your fact witnesses testify that releases occurred during a certain time period from a certain discharge pipe, your expert may be able, through environmental data collected in the field, to plot the movement of the contaminant plume in ground water, calculate the speed with which the contaminants moved, and validate the time period during which the releases occurred (in this case, during the time period stated by your fact witness). Likewise, aerial imagery or remote sensing experts can validate that dumping occurred during a particular time frame by show- ing a worn path to a remote site area where discolored and dis- turbed soils are observed, which later turned out to be a burial ground for chemical waste. Finally, experts can be used to successfully impeach the testi- mony of fact witnesses. When your opponent's case rests upon the testimony of one or two key witnesses who claim to remem- ber specifically (but have no written corroborative evidence) that a particular act occurred at a certain time, aerial imagery and expert testimony about fate and transport can demonstrate to the judge or jury that your opponent's witnesses were simply mistaken about the time frame in which the acts occurred, or are simply not believable.
D. Anticipating Objections and Motions in Limine
The admissibility of expert testimony under Federal Rule of Evidence 70219 has been significantly altered since the United States Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals,Inc. 2" While a review of Daubert and its proge-
19. Federal Rule of Evidence 702 provides that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. FED. R. EVID. 702. 20. 509 U.S. 579 (1993). The court in Daubert held that the adoption of the Fed- 126 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ny is beyond the scope of this article, trial counsel must be famil- iar with the fact that any expert engaged to testify at trial must meet the Daubert criteria.21 More specifically, the opinions of the expert should be consistent with those generally accepted within the scientific community and should be based upon an accepted scientific methodology and not mere speculation.2 Opinions which are outside the mainstream of modern scientific environmental knowledge are subject to dismissal on a Daubert motion,23 and should be viewed with concern by attorneys re- taining experts in cost recovery cases. Most Daubert objections arise in the context of bodily injury claims and toxic tort cases, where aggressive plaintiffs have engaged junk science experts to support theories of causation that plaintiffs have been harmed as a result of exposure to contaminants. In cost recovery cases, while the Daubert principles must be observed, the risk of hav- ing expert opinions excluded depends upon whether they are consistent with generally accepted principles and data, including peer review studies within that discipline. 4
eral Rules of Evidence superseded the Frye test, under which the admissibility of expert scientific evidence was based exclusively upon whether it was generally ac- cepted within the particular scientific community. Id. at 587. 21. Daubert, 509 U.S. at 592-595; see also General Electric Co. v. Joiner, 118 S. Ct. 512, 517'(1997). 22. However, note that whether the expert's opinion is generally accepted within the scientific community is only one of four factors set forth by the Daubert Court to determine whether the expert opinion is admissible evidence. Specifically, the Court in Daubert outlined the four factors that a trial court should consider in determining whether the opinion or theory is scientifically valid and admissible. Daubert, 509 U.S. at 592-295. These factors include: (1) whether the theory has been or could be tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error with a particular technique or methodology; and (4) whether the theory enjoys general acceptance in the relevant scientific communi- ty. Id. 23. See, e.g., Daubert, 509 U.S. at 589 (explaining that the trial judge has a "gatekeeper role of screening [scientific] testimony to ensure that it is not only rele- vant, but reliable", and must exclude or admit such evidence based upon its find- ings); United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (citing Benedi v. McNeil- P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995) (holding that "Daubert clearly vests the district courts with discretion to determine the admissibility of expert testimo- ny"). 24. See supra notes 21-23 and accompanying text. 1997] EXPERTS IN LITIGATION
E. The Different Subdisciplines of Experts in Environmental Litigation
The number of subdisciplines of experts in environmental litigation has grown exponentially in the last fifteen years. Many may be subject to a Daubert motion to exclude the testimony because they represent areas that have not been generally ac- cepted in the scientific community.25 Among the more accepted disciplines are geology, hydrogeology (the movement of water and contaminants in the subsurface), biology, chemistry, statis- tics, modeling (with some exceptions), toxicology, medical science (physicians), real estate appraisers (but beware of the concerns associated with real estate appraisers who testify concerning stigma), compliance with the National Contingency Plan26, remediation technologies, professional engineers, civil engineers, and mechanical engineers." If you are planning to use an expert at trial, do not allow your expert to go beyond his or her area of expertise. Such a move is an invitation for impeachment of the credibility of the expert in the areas in which the witness truly has expertise, and it sub- jects the witness to a possible Daubert motion with respect to all opinions.28 How to determine the type of expert needed flows from the trial attorney's development of the case strategy when first engaged. Trial counsel must keep an open mind that the experts may bring plausible theories to the attention of trial counsel that should be investigated, even if those theories appear farfetched at first.
25. See supra notes 22-23 and accompanying text. 26. 40 C.F.R. pt. 300 (1997). 27. See, e.g., Becker v. Nat'l Health Products, Inc., 896 F. Supp. 100 (N.D.N.Y. 1995) (medical science); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995) (medical science); David B. McConnell, The Sevin Made Me Do It: Mental Non- Responsibility and the Neurotoxic Damage Defense, VA. ENVTL. L.J. 151, 173 (1994) (toxicology is accepted science). But see generally Daniel A. Klein, J.D., Annotation, Reliability of Scientific Technique and its Acceptance Within Scientific Community as Affecting Admissibility, at Federal Trial, of Expert Testimony as to Result of Test or Study Based on Such Technique-Modern Cases, 105 A.L.R. Fed. 299 (1991) (discuss- ing examples of scientific techniques which have not passed the Daubert test). 28. See supra note 23 and accompanying text. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
F. 'Screening Final Areas of Need. Testifying Versus Non-Testifying Experts It may be appropriate to engage certain experts for the sole purpose of assisting trial counsel in preparing for trial. In that context, I find it helpful to have non-testifying experts assist in the evaluation of opposing experts' reports and to prepare for and critique the depositions of opposing experts. In most cases, you may wish to maintain the confidentiality of the identity of the non-testifying expert, and, for that reason, simply have the expert available to assist in preparing you for the taking of the opposing expert's deposition. Counsel may possess several reasons for the engagement of non-testifying experts. For example, the non-testifying expert may be technically excellent, but for strategic reasons, is not the best person to put on the stand. The non-testifying expert may be more available to trial counsel when counsel needs technical support, and the testifying expert may be one whose credentials make the expert more desirable as a live witness. In most situa- tions, you will want to keep the identity of the non-testifying expert confidential. If trial counsel feels uncomfortable, however, with his or her preparation for a deposition, it may be necessary to have the expert present to pass notes to the attorney taking the deposition, to confer during breaks in the deposition, and to otherwise let the deponent know that his/her opinions are being carefully scrutinized. On the other hand, the presence of a non-testifying expert during a deposition you are taking of the opposing party's expert may cause the witness to be extremely careful in the wording of his or her answers. It may be better to take the deposition with- out the deponent having any knowledge that the attorney has been well instructed in the technical area of the expert, thus allowing the deponent to set forth his or her opinions at length during the first part of the deposition, leading to eventual dissec- tion of those opinions one by one in the second part of the depo- sition. This approach is effective (and usually to the chagrin of the deponent who had assumed that the attorney was clueless concerning the technical area). As pointed out above, the benefit of using a non-testifying expert during depositions is that you can continue to protect the confidentiality of the identity of testi- fying experts until such time as the case management order or 1997] EXPERTS IN LITIGATION 129 the rules of court require their disclosure.29
G. Doing Your Homework Concerning the Trier of Fact One of the first tasks of an attorney assigned to an environ- mental litigation case is to get to know the judge assigned to the case. Counsel should attempt to obtain every opinion written by the judge that bears upon the issues that may come up in the case and, with respect to experts, the judge's view toward ex- perts. This also requires trial counsel to confer with other trial attorneys in the community who have tried cases before the judge. Counsel can usually accomplish this information gathering through the effective use of local counsel or contacts within the legal community. Of course, it is imperative that the confidenti- ality of those communications be preserved. The homework done on the background of the judge can lead to information concerning the best expert to choose. For example, judges have been known to make comments that all experts were "prostitutes." Similarly, judges have also been known to com- ment on the paucity of female experts being called to the stand. Again, information like this is power to assist the trial counsel in preparing the case. Because judges are human, knowing how the judge tends to view certain circumstances and issues is extreme- ly helpful in selecting your expert witnesses. Likewise, obtaining information on how the district court and the court of appeals have ruled upon issues concerning experts is extremely important. Because opinions rendered by other judges in the same district, or in the court of appeals, may have precedential or binding effect, counsel must conduct research concerning any other legal issues that may bear upon the selec- tion of the expert. Finally, counsel must gather information con- cerning opposing counsel: counsel's experience, types of cases tried, background, areas of expertise, and the ways opposing counsel has used experts in the past. The use of experts and disciplines not familiar to opposing counsel may be a factor that assists you in making a tactical decision concerning engagement of an expert.
29. See supra notes 12-13 and accompanying text. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
H. The Search for the Expert 1. How to Locate Suitable Candidates The best way to identify suitable candidates for experts in environmental litigation is through prior experience of the trial attorney. There is no substitute for personal experience. Once an attorney has developed a relationship with an expert, the attor- ney is able to assess the strengths and weaknesses of the expert, and determine whether the expert would be a good fit for the particular case. But assuming that trial counsel has not had any prior experi- ence with experts in the particular discipline at issue, how can trial counsel locate candidates to interview? The first and best mechanism is to speak with other environmental litigators who have handled similar issues. Sometimes this involves a search of all cases involving similar issues, the identification of experts (including some specifically mentioned by judges in their opinions) who have been held in high regard, and simply asking for references from attorneys who litigate these types of cases on a regular basis. A thorough search for candidates usually leads to a number of experts whose names constantly appear. A pre- liminary screening can occur while trial counsel is interviewing other attorneys concerning their prior experiences with these experts. On the other hand, a less effective way of finding experts is for counsel to approach the commercial services that provide litiga- tion experts in various disciplines. Because trial counsel must be mindful of the fact that his expert may be painted by the opposi- tion as a professional hired gun, it is important to ensure that experts recommended by professional referral services (which derive income from the engagement of the expert) do not compro- mise your case. I cannot emphasize enough that the candidates you select should be of the highest quality and caliber, have some experience at testifying (but not be "professional" witnesses hopping from courtroom to courtroom), be well respected by their peers and in the legal community, and not charge outrageous rates, which may offend some judges, many jurors, and your client. After you have whittled down your list of candidates to a manageable number, you are ready to begin the interview pro- cess. 1997] EXPERTS IN LITIGATION 131
2. The Interview Process The interview process should include the client so that the client develops ownership in the work product that is going to be created. By now you should have completed your intelligence gathering concerning the judge, the court, the court of appeals and opposing counsel, and you should have identified the neces- sary expert disciplines. By now you should also have evaluated the expert's reputation and be satisfied, or you should not be going forward with the interview. If the expert has previously testified in other cases, you should have asked the expert to forward to you all depositions and trial testimony, as well as affidavits and reports (sanitized if necessary), that can be re- leased to you so that you can see the work product that has previously been generated, as well as the manner in which the expert presents his or her opinions. While in many cases it is beneficial to have an expert who is local and less likely to be per- ceived as a hired gun, it is frequently impossible to find all of your experts in the local community. Do not limit your search to the immediate community in which the case is being tried. The interview process itself should focus upon the ability of the expert to work as a member of a team, to present complex technical arguments in a simple fashion to a judge and jury, to be creative and willing to make recommendations for different approaches, to be flexible to consider other views, but most im- portantly, to be an expert who will not simply say whatever it is you want to hear. The work product must be defensible. If it is not, you will lose.
3. Developing a Budget The interview should also include a candid discussion of the fees for testifying and the fees for preparing to testify. You should feel free to ask the expert for the total fees charged in prior cases. You should ask the expert to provide you with sani- tized bills showing the number of hours spent in preparing for a case so that you can determine whether the expert is a "churn- er," or someone who effectively uses his or her time to prepare the case. Trial attorneys in environmental cases should be wary of ex- perts who charge outrageous hourly rates for testifying. This can 132 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 be used effectively by opposing counsel to shock a jury into be- lieving that the expert is simply prostituting himself for the hourly fee. Finally, you should ask the expert, based upon your discussion of the parameters of the case, to prepare and submit to you a budget. All of these discussions must take place within the confines of a written confidentiality agreement. You will necessarily have revealed to the expert some of your confidential approaches to the case, and you need to take measures to assure that opposing counsel does not have access to that information. A letter agree- ment is acceptable, because if the expert is not retained, you want assurances that the expert will not be engaged by opposing counsel. Because consultants are not subject to the Code of Pro- fessional Responsibility or the Rules of Professional Conduct concerning conflicts of interest, ° you should also discuss with the expert past work done on behalf of the opposing party or its counsel and your client.
4. Selection of the Expert Once the expert has been selected, and the fees that will be charged have been clearly established, the agreement engaging the expert should be between the trial attorney and the expert (and not between the client and the expert) in order to preserve, to the greatest extent possible, any work product privilege."1
30. Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct impose mandates upon licensed attorneys regarding conflicts of interest. In the Model Code, see Disciplinary Rule 5-101. MODEL CODE OF PROFES- SIONAL RESPONSIBILITY (1980). In the Model Rules, see Rule 1.7. MODEL RULES OF PROFESSIONAL CONDUCT (1983). 31. FED. R. CwV. PROC. 26(b)(3) states as follows: a party may obtain discovery of documents and tangible things otherwise dis- coverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's ... consultant .. . ) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impres- sions, conclusions opinions or legal theories of an attorney or other representa- tive of a party concerning the litigations. Id. The leading case discussing the work product privilege is Hickman v. Taylor, 329 U.S. 495 (1947). 1997] EXPERTS IN LITIGATION
The letter should set forth the fees to be charged in a simple statement to the effect that the expert has been engaged for the purpose of assisting trial counsel in preparing for trial, but that no decision has been made whether this expert will be called upon to testify at trial. Bear in mind a principle I always follow: despite the work product doctrine, any communications with experts may be discoverable. 2
IX. PRETRIAL USE OF EXPERTS A. Communications-Oraland Written Because of legitimate questions concerning the protection of communications between trial counsel and experts engaged as trial witnesses, it is recommended that written communications with trial experts be kept to a minimum. Again, trial attorneys in environmental cases should assume that any communications with experts may be discoverable. Therefore, background infor- mation and documents that are provided to experts should be prepared with the view that these documents may be discover- able, particularly if they are relied upon in preparation for a deposition, 3 or in preparation for trial. In addition, should the expert rely upon any documentation or work product provided by the trial attorney as a basis for his or her opinion, that informa- tion may be discoverable. 4 Therefore, it is important to keep an accurate record of the documents that are provided to the expert so that the expert can list all documents made available to him or her when preparing the expert opinion. Communications con-
32. Under Federal Rule of Civil Procedure 26(b)(3), an attorney's communication with an expert witness is potentially discoverable if opposing counsel can demon- strate a substantial need for the material in preparing his/her client's case, and that he/she is unable to obtain the substantial equivalent of the material from any other source without undue burden. FED. R. CIV. P. 26(b)(3). 33. Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying either- (1) while testifying, or (2) before testifying, if the court in its discretion determines it is neces- sary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. FED. R. EvrlD. 612. 34. See supra note 12 and accompanying text. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 cerning the strategic plan for presentation of the case should never be in writing to the expert.3 5 As discussed below, I recom- mend a different approach to bringing the experts to a consensus on a trial approach.
B. Preparationfor Depositions Experts must be thoroughly prepared for depositions. Typical- ly, a case management order will call for a fact discovery period (including depositions of fact witnesses), followed by the release of the reports of plaintiff's experts, followed shortly thereafter by the release of the defendant's experts' reports, and the com- mencement of expert deposition discovery. This all typically pre- cedes dispositive motion filing. This is a time-intensive period for the parties because the expert must be thoroughly prepared to defend the opinions of- fered in the expert's report that has been disclosed to opposing counsel. Federal courts require written expert reports, 6 but some state courts do not. While some trial attorneys do not favor the preparation of any written expert's report, I do. The prepara- tion of the expert's report not only assists the proponent of the report to be better prepared to articulate and defend his opin- ions, but also establishes for the benefit of opposing parties the strength of the expert opinions that will be rendered at trial. To that extent, expert reports can be extremely conducive to settle- ment negotiations. Experts should be thoroughly cross-examined by the attorney engaging the expert as part of the deposition preparation. The expert must have taken the time to have reviewed all of the documents, which formed the basis for his or her deposition, and to deal with the difficult questions which will undoubtedly arise during the deposition.
35. Under Federal Rule of Civil Procedure 26(b)(3), this material would be poten- tially discoverable if opposing counsel could show a substantial need for the materials to prepare his/her client's case and that he/she would be unable to obtain the sub- stantial equivalent of the materials by other means without undue hardship. FED. R. Civ. P. 26(b)(3). 36. See supra note 13 for text of Federal Rule of Civil Procedure 26(a)(2)(B). 1997] EXPERTS IN LITIGATION
C. Authorization of Work by Experts As experts go about the process of preparing their opinions and, eventually, their written reports, the cost of the experts can get out of hand if not carefully monitored. Thus, trial counsel must make clear to the experts that they are not to do any work unless specifically authorized. If the expert determines that work needs to be performed, the expert should request authorization. At times, differences of opinion arise between trial counsel and the client as to whether the expert ought to be doing a particular task. The trial attorney must be sensitive to the cost issues asso- ciated with the engagement of the experts, but at the same time must not compromise the ability to present his or her client's case in the most effective manner. For that reason, a close work- ing relationship by telephone between the expert and trial coun- sel is important to assure that expert billings do not get out of hand. I also recommend monthly billings so that the client is not shocked with an enormous bill that is submitted at the end of the case.
D. Draft and Final Reports: The Role of Lawyer as Editor Unlike many lawyers who believe that without their guidance, experts cannot write an intelligible report, I firmly believe in avoiding draft reports in environmental litigation, when possible. This may appear to be heresy to many seasoned trial lawyers, but the technique has worked effectively for me. By working closely with experts during the discovery process, the trial attor- ney can assure that the expert does not generate a report that either contains opinions and conclusions creating substantial problems for the client or that the expert was insensitive to the legal implications of certain terminology. For that reason, I typi- cally recommend that all experts in environmental litigation gather with trial counsel prior to the time that reports are writ- ten to talk about the respective opinions reached by the different experts, to assure that there is a clear flow between the opinions of the experts, to avoid inconsistent opinions, and to assure that an expert limits his or her opinion to the subject matter for which the expert has been tasked and is qualified. These "expert conferences" require a great deal of coordination to get all of the experts in one place at one time, but if managed effectively, can be done in one day. The conferences also have the added benefit NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
of letting all of the experts involved in the case feel a part of the team preparing the final work product. This approach tends to boost the confidence of the individual experts because each will now be able to see the strength of the testimony that will be offered in other areas. Prior to this conference, I encourage the experts to confer by telephone on issues that overlap. While this information is discoverable, it is entirely consistent with the scientific process of gathering information necessary to render an opinion. The format of the final report for each expert can be covered during this "expert conference." Each expert should be prepared to come to the meeting with an outline of how the report is to be formatted, and to go through in detail each of the separate sec- tions, including findings of fact and opinions. The attorney must take this opportunity to act as advisor and counselor. Trial attorneys face significant risks when they alter draft expert reports. The first risk is obvious: trial counsel for the other side will ask for all drafts of the report, will focus upon any differences in the text, and will ask why those changes were made. When the testimony is elicited that the attorney was re- sponsible for the change in the document, this will seriously affect the credibility of the expert witness, and his/her indepen- dent opinion concerning technical matters. Typically, opposing counsel is baffled when no draft report has been prepared and that counsel would have enough confidence in his or her experts to allow a report to go directly to final. The final reports typically look less lawyer-like, and more like the product of a consultant, which they are. Again, the ability to follow this approach de- pends upon the trust that the trial attorney has in the experts, and the experts in each other. I am always delighted to have opposing counsel take the op- portunity to carefully mark up every draft prepared by an expert so that I can show that the opinions rendered by the expert are not those of the expert, but rather the expert acting as the mouthpiece for the lawyer. The simple question to be posed here is as follows: Do you have enough confidence in your experts to do that which you hired them to do? If counseled properly, I believe that the experts will perform in fine fashion. 1997] EXPERTS IN LITIGATION
E. The Development of DemonstrativeEvidence
In environmental litigation, some issues, such as strict mat- ters of law, will be tried to the court, and not to the jury. 7 Oth- ers will be tried to the jury, and the development of demonstra- tive evidence is critical to the judge's and the jury's understand- ing of the story your client is presenting. The evidence must flow smoothly, and the expert must engage the judge and jury in a way that the information is interesting, relevant, and even at- tractive. There are various ways of presenting demonstrative evidence, and there is no need to spend tens of thousands of dollars on computer simulations when a drawing of the site or an aerial photograph will suffice. By the time the trial attorney holds his "expert conference," the experts should have already submitted ideas to the trial attorney for demonstrative evidence. Decisions will likely be made during the "expert conference" regarding whether the dem- onstrative evidence should be included as part of the expert's report. Tactical reasons may dictate holding back certain demon- strative evidence, while others should be included in the written report to clearly support the expert's opinion.
X. THE ANTI-CLIMAX: TRIAL As you can see from the above discussion, ninety-five percent of the work associated with a successful cost recovery action or defense is in the pretrial preparation. The trial should flow very smoothly because counsel has prepared each of the witnesses and has all of the exhibits ready for the court and his presenta- tion. Counsel must focus upon the testimony that is being pre- sented so that objections can be made without hesitation and questions can be prepared for effective cross-examination of wit- nesses.
37. See, e.g., Louisiana-Pacific Corp. v. Asarco, Inc., 24 F.3d 1565, 1571 (9th Cir. 1994) (state law claims tried to jury; CERCLA claims tried to court; Hatco Corp. v. W.R. Grace & Co.-Conn., 859 F. Supp. 769, 773 (D.N.J. 1994) (CERCLA & Spill Act claims tried to court); Folino v. Hampden Color & Chemical Co., 832 F. Supp. 757, 760, 762 (D. Vt. 1993) (lease claims, with exception of attorney's fees, tried to jury; statutory claims tried to court); In re Acushnet River & New Bedford Harbor: Pro- ceedings re Alleged PCB Pollution, 712 F. Supp. 994, 1000 (D. Mass. 1989) (claims for natural resource damages must be tried to jury as matter of right). 138 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
A. Trial Notebook A trial notebook is necessary. A notebook should include a separate heading for each witness, including the proposed direct examination and cross-examination of each witness. Exhibits that are to be used with each witness should be included in a trial notebook. In addition, the margins should set forth the record references, including deposition pages, where witnesses have testified on a particular point. In the event that impeach- ment of a witness is necessary, counsel will have ready access to the appropriate deposition or exhibit citations so that the court clerk can pull that particular deposition or document and it can be presented to the witness.
B. Introducing the Expert to the Courtroom Even if the expert has had considerable prior experience testi- fying in court, the expert must get comfortable with this court- room. I recommend that trial counsel take the experts into the courtroom during the month prior to trial to show them the lay- out of the courtroom, and to review the seating arrangements of the various parties and the location of exhibits. This exercise gives the experts an opportunity to become comfortable with the courtroom. This approach also applies to fact witnesses. This field trip to the courtroom is also helpful in determining how the trial attorney can effectively use the demonstrative evi- dence. I recommend that the trial attorney go over each large exhibit with each expert sitting on the stand. This is all done in an empty courtroom with just the trial attorney and his experts present. If possible, have the lighting and microphone system turned on so that the witnesses can get accustomed to speaking into the microphone. In addition, the client, a paralegal or an associate working on the case can sit in the jury box to give the expert a feel for the presence of the jury. Finally, trial counsel must emphasize that there will be distractions while the witness gives his/her testimony, such as the rustling of papers, people walking in and out of the courtroom, and the judge speaking with his or her law clerk. Trial counsel should offer advice to the witnesses for dealing with those distractions. 1997] EXPERTS IN LITIGATION 139
XI. CONCLUSION Effective preparation for trial can significantly enhance the effective use of experts in environmental litigation. If effort is directed at the planning phase, competent experts can be en- gaged to give your client a significant edge. Even the best ex- perts, however, cannot overcome a simple case of bad facts.
NOTE
UNITED STATES v. AHMAD: WHAT YOU DON'T KNOW WON'T HURT YOU. OR WILL IT? by Michael E. M. Fielman
I. INTRODUCTION:
A BRIEF HISTORY In 1972, amendments to the Federal Water Pollution Control Act, originally enacted in 1948, were passed.' These amend- ments, in conjunction with the existing Act, brought into being what is more commonly known as the Clean Water Act ("CWA").2 The statute, originally providing misdemeanor penal- ties for first time offenders, was amended in 1987 to provide fel- ony penalties for first time offenders who knowingly violated the statute.' In 1972, Attique Ahmad was twenty years away from purchas- ing the Spin-N-Market No.12 combination gas station and conve- nience store in Conroe, Texas. Two decades later, he became the owner of that station.4 Less than two years after that, in 1994, the CWA became an integral part of Ahmad's life. As a result of his alleged violations of that Act, Ahmad became responsible, at least in part, for one of the most broadly interpreted legal issues confronting the federal circuit courts today.
1. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92- 500, § 309(c), 86 Stat. 816, 860 (codified at 33 U.S.C. § 1251, (West 1997)). 2. Id. 3. See Jane F. Barrett, "Green Collar" Criminals: Why Should They Receive Spe- cial Treatment?, 8 MD. J. CONTEMP. LEGAL ISSUES 107, 108 (1997). 4. United States v. Ahmad, 101 F.3d 386, 387 (5th Cir. 1996), reh'g denied, 108 F.3d 335 (5th Cir. 1997).
141 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
II. FACTS OF THE CASE: TRYING TO SAVE SOME MONEY The Defendant, Attique Ahmad, decided to pursue a small part of the American dream in 1992 by going into business for himself. He purchased the "Spin-N-Market No. 12", a combina- tion convenience store and gas station in Conroe, Texas.5 The store had two gasoline pumps, each connected to its own 8,000 gallon underground gasoline storage tank.' Sometime after Ahmad purchased the store, he discovered a leak in one of the tanks.7 The leak was located near the top of the tank; thus, while no gasoline could escape, water could flow freely into the tank and mix with the gasoline.8 As a result, the pump connect- ed to the underground storage tank could not be used since the gas was pumped from the bottom of the tank, and the water, being heavier than gasoline, had settled in the bottom of the tank.9 In October, 1993, Ahmad hired CTT Environmental Services ("C'1T"), an environmental consulting company, to examine the leaking tank."0 CTT found that there were approximately 800 gallons of water in the storage tank." A CTT employee testified that she told Ahmad that the tank would have to be entirely drained in order to repair the leak. 2 CTT offered to perform this service for Ahmad at a cost of sixty-five cents per gallon plus sixty five dollars per hour labor.' The CTT employee testified that Ahmad then inquired as to whether he could empty the tank on his own."' The employee responded that to do so would be very dangerous, as well as illegal. 5 Nevertheless, three months after the environmental assess- ment by CTT and the discussion regarding the illegality of pumping the tank himself, Ahmad rented a handheld motorized
5. Id. 6. Id. 7. I . 8. Id. 9. Id. 10. Id. at 388. 11. Id. 12. Id. 13. Id. 14. Id. 15. Id. 1997] UNITED STATES v. AHMAD 143 water pump from a local hardware store.16 Ahmad began emp- tying the tank that same evening, on January 25, 1994.17 By the time the pumping had stopped, Ahmad had emptied 5,220 gallons of fluid from the tank. 8 Of that 5,220 gallons, approxi- mately 4,690 gallons of gasoline had been pumped into the street in front of the Spin-N-Market.9 The gas/water mixture took two different routes into the city of Conroe." Some of it ran along the street until it flowed into a storm drain leading to the storm sewer system, and eventually drained into a local creek.2' As a result, the creek, which fed into a larger river and eventually into Lake Houston, had to be decontaminated by several vacuum trucks.22 Some of the gasoline, on the other hand, ran off into a manhole cover in front of the store. It eventually ended up in the city sewage treatment plant where, on January 26, employ- ees discovered a 1,000 gallon pool of gasoline in one of the intake ponds.24 Before the contamination was brought under control, the plant supervisor had to evacuate all non-essential personnel from the plant.25 When firefighters and a hazardous materials team were called to the scene, the Conroe fire department deter- mined that the gasoline had created a risk of explosion.26 As a result, two nearby schools were evacuated. 27 Fire officials testi- fied that the pooled gas had created a "tremendous explosion hazard" which could have led to "hundreds, if not thousands, of deaths and injuries" and property damage in the millions of dollars.28 By early morning on January 26, investigators had followed the gasoline back to its source: the manhole cover in front of Ahmad's Spin-N-Market. When the investigators first con-
16. Id. 17. Id. at 389. 18. Id. at 388. 19. Id. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. Id. 28. Id. 29. Id. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 fronted him, Ahmad denied having pumped out the gasoline the night before. 0 He later changed his story and admitted that he used the pump, but he continued to deny having pumped any- thing from his tanks.3' Two witnesses later testified that they had seen Ahmad and another person pumping gasoline into the street."2 A third witness testified that he had questioned Ahmad as to what he was doing, to which the Defendant replied that he was removing only the water from the tank.33 As a result of his actions, Ahmad was charged with three violations of the CWA: (1) knowingly discharging a pollutant from a point source into a navigable water of the United States without a permit, in violation of 33 U.S.C. sections 1311(a) 4 and 1319(c)(2)(A)15; (2) knowingly operating a source in viola- tion of a pretreatment standard, in violation of 33 U.S.C. sec- tions 1317(d) and 1319(c)(2)(A)S; and (3) knowingly placing an- other person in imminent danger of death or serious bodily inju- ry by discharging a pollutant, in violation of 33 U.S.C. section 1319(c)(3).37 Ahmad was convicted of the charges in the United States District Court for the Southern District of Texas." At trial,
30. Id. 31. Id. 32. Id. 33. Id. 34. Entitled "Illegality of pollutant discharges except in compliance with law", states that "[except as in compliance with this section" or several other specified sec- tions "of this title, the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a) (1997). 35. Pertaining to criminal penalties for knowing violations, states in part that "any person who knowingly violates" several specified sections "of this title . .. shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both." 33 U.S.C. § 1319(c)(2)(A) (1997). 36. Id. 37. Entitled "Knowing endangerment", states in part that "any person who know- ingly violates" several specified sections of this title: or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a state, or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprison- ment of not more than 15 years, or both. 33 U.S.C. § 1319(c)(3) (1997). 38. United States v. Ahmad, 101 F.3d 386, 389 (5th Cir. 1996). 1997].- UNITED STATES v. AHMAD
Ahmad did not deny the fact that he had pumped gasoline from the underground storage tank into the creek and the city sewage system. 9 Instead, he argued that he did not "knowingly" dis- charge any gasoline because he believed that he was only pump- ing water out of the tank.4" Counsel for the Defendant attempt- ed to introduce into evidence the testimony of Mohammed Abassi and Shahid Latif, employees of Ahmad, who were prepared to state that Ahmad was at the Spin-N-Market only until about 7:30 or 8:00 p.m. on the evening the gasoline was discharged, rather than the entire evening.41 This testimony was intended to show that Ahmad only negligently left the operation of the pump in the hands of his employees and did not knowingly dis- charge the gasoline himself.42 However, the court excluded this testimony as irrelevant and the jury found Ahmad guilty of counts one and two. The jury was deadlocked as to the third count.44 On appeal, Ahmad argued that the instructions given by the district court to the jury were improper as to the requisite mens rea for counts one and two.45 He contended that the phrase "knowingly violates," which appears in different sections of the CWA other than the section defining the elements of the offens- es, should apply to each of the elements of the offenses rather
39. Id. 40. Id. 41. Id. 42. Id. 43. Id 44. Id. 45. The jury instructions for count one read, in relevant part: For you to find Mr. Abmad guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: (1) That on or about the date set forth in the indictment, (2) the defendant knowingly discharged (3) a pollutant (4) from a point source (5) into the navi- gable waters of the United States (6) without a permit to do so. As to count two, the instructions read: In order to prove the defendant guilty of the offense charged in count 2 of the indictment, the government must prove beyond a reasonable doubt each of the following elements: (1) That on or about the date set forth in the indictment (2) the defendant, (3) who was the owner or operator of a source, (4) knowing- ly operated that source by discharging into a public sewer system or publicly owned treatment works (5) a pollutant that created a fire or explosion hazard in that public sewer system or publicly owned treatment works. Id. 146 NORTHERN KENTUCKY LAW REVIEW (Vol. 25:1 than just the element of discharge or operation of a source.48 In contrast, the government argued that "knowingly violates" ap- plies only to the nature of Ahmad's acts and whether he per- formed them intentionally. 4 Specifically, the issue before the United States Court of Appeals for the Fifth Circuit in this case was whether "knowingly" applied to the element of discharging a pollutant, since Ahmad's primary argument was that he thought he was discharging only water and not gasoline."
III. BACKGROUND: CASES AND ARGUMENTS PRESENTED In an attempt to clarify the application of the term "knowing- ly," the court first turned to the Supreme Court of the United States to see if it had spoken on the issue.49 The court found two analogous cases dealing with the issue at hand: Staples v. United States,5" and United States v.X-Citement Video, Inc.51 In X-Citement Video, the issue before the court52 was the ap- plication of the scienter element of the Protection of Children Against Sexual Exploitation Act ('PCASEA") of 1977, as amend- ed.5" The defendant owned a video store that sold pornographic movies.54 As part of an undercover sting, police posed as pornog- raphy retailers and asked the defendant about acquiring tapes featuring Traci Lords, an actress under the age of eighteen." After the defendant sold the tapes in question to the undercover officer, he was arrested, charged with violating sections 2252(a)(1) and (a)(2) of the PCASEA," and convicted.57 The Court of Appeals, the Ninth Circuit, reversed the decision on the ground that the Act violated the First Amendment.58
46. Id. at 389-90. 47. Id. at 390. 48. Id. 49. Id. 50. 511 U.S. 600 (1994). 51. 513 U.S. 64 (1994). 52. 18 U.S.C. §§ 2251-2256 (1994). 53. 513 U.S. 64 (1994). 54. Id. 55. Id. 56. Id. 57. See United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992). 58. Id. 1997] UNITED STATES v. AHMAD
On writ of certiorari, the defendant argued that the Act was unconstitutional because it lacked the necessary scienter require- ment that the defendant possess knowledge of the fact that one performer had not reached the age of majority at the time of the making of the films.59 The problem before the Court was whether the use of the term "knowingly" in 18 U.S.C. sections 2252 (1) and (2) also applied to subsections (1)(A) and (2)(A) where the term was not used."° In reversing the Ninth Circuit's decision, the Court declined to use the "most natural grammati- cal" reading of the section in question, which would suggest that "knowingly" would only modify the verbs surrounding it, and not all other subsections as well.6' The Court stated that, if "know- ingly" were to apply only to the relevant verbs in section 2252, "we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit mate- rial. 62 To clarify it's position, the Court proceeded to give several examples of the effect of the statute if the word "knowingly" did not apply to all sections. "For instance, a retail druggist who returns an uninspected roll of developed film to a customer 'knowingly distributes' a visual depiction and would be criminal- ly liable if it were later discovered that the visual depiction con- tained images of children engaged in sexually explicit con- duct."'6 Furthermore, the Court cited previous cases where it interpreted criminal statutes to include broadly applicable scien- ter requirements, even where the statute by its terms did not contain such requirements.64 Based on the presumption of broadly applicable scienter requirements and the rejection of the most naturally grammatical reading, the Court held that the
59. United States v. X-Citement Video, 513 U.S. 64, 67 (1994). 60. Id. 61. Id. 62. Id. at 69. 63. Id. 64. See Morissette v. United States, 342 U.S. 246 (1952) (recognizing that a nat- ural grammatical reading of the federal embezzlement statute at issue would attach "knowingly" only to the act of converting and not embezzling, stealing or purloining; however, the Court proceeded to use a broad presumption of scienter to apply "know- ingly" to all elements). See also United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) (stating that far more than an omission of the appropriate phrase from a statutory definition is required to justify disposing of an intent re- quirement). 148 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 term "knowingly" in section 2252 applied to the subsections not containing the word as well as those sections that did. 5 The Fifth Circuit also reviewed Staples, a Supreme Court case involving a violation of the National Firearms Act ("NFA")5 , to shed more light on the issue at hand.67 Under the NFA, all "firearms" as defined by the statute were to be registered in the National Firearms Registration and Transfer Record." The de- fendant was arrested when the police executed a search warrant at his home and found an unregistered rifle that fell under the statutorily defined category of a "firearm".69 The weapon had apparently been altered so as to allow it to fire automatically, as opposed to semi-automatically, thus bringing it under the defi- nition of a "firearm."7 ° The defendant claimed he had no knowl- edge of this change and requested the district court to instruct the jury that, in order to establish a violation of 26 U.S.C. sec- tion 5861(d) of the NFA, the government must prove beyond a reasonable doubt that he knew that the gun would fire fully automatically.71 The district court, however, rejected this pro- posed instruction and convicted the defendant.72 The court of appeals affirmed the decision.7" The Supreme Court, after granting certiorari, began its analysis of the case by noting that section 5861(d) is silent as to the mens rea required for a viola- tion.74 However, citing previous case history,7" the Court pro- ceeded to state that "silence on this point by itself does not nec-
65. X-Citement, 513 U.S. at 78. 66. 26 U.S.C. §§ 5801-5872 (1968). 67. Staples v. United States, 511 U.S. 600 (1994). 68. See 26 U.S.C. § 5841. 69. Staples, 511 U.S. at 603. 70. Id. 71. Id. at 603-04. 72. Id. at 600. 73. United States v. Staples, 971 F.2d 608 (10th Cir. 1992). 74. 26 U.S.C. § 5861(d) states that "[i]t shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 75. See United States v. Balint, 258 U.S. 250, 302 (1922) (recognizing that tradi- tionally, scienter was a requisite element of every crime). See also United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978) (explaining that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo- American criminal jurisprudence'); Liparota v. United States, 471 U.S. 419, 426 (1985) (relying on the traditional rule, the Court said that offenses requiring no mens rea are generally disfavored). 1997] UNITED STATES v. AHMAD
essarily suggest that Congress intended to dispense with a con- ventional mens rea element, which would require the defendant to know the facts that make this conduct illegal."76 In reversing the decision of the court of appeals, the Supreme Court summa- rized its view, stating "we conclude that the background rule of the common law favoring mens rea should govern the interpreta- tion of § 5861(d) in this case. Silence does not suggest that Con- gress dispensed with mens rea for the element of section 5861(d) at issue here."" After reviewing the Supreme Court cases most on point with the issue at hand, the Ahmad court then turned its attention to its own precedents. In United States v. Baytank (Houston) Inc.,7" the defendant, a liquid chemical transfer and storage fa- cility, was found guilty of improper storage of hazardous waste under 42 U.S.C. section 6928(d)(2)(A).79 The defendant argued, inter alia, that it did not know that what was being stored was hazardous and that the knowledge requirement should apply to the entire section of the statute.80 The court required that "the defendant know factually what he is doing - storing, what is being stored, and that what is being stored factually has the potential for harm to others or the environment. . . Finally, the court proceeded to examine the cases and argu- ments set forth by the government in favor of its interpretation of the CWA.82 The government submitted two cases in support of its position that "knowingly violates" does not apply to the statute as a Whole: United States v. Weitzenhoff3 and United States v. Hopkins. 4 In addition to these cases, the government also argued that violations of the CWA constitute "public welfare offenses" which obviate the requirement of mens rea.85 In Hopkins, the defendant was the vice president of manufac-
76. Staples, 511 U.S. at 605. 77. Id. at 619. 78. 934 F.2d 599 (5th Cir. 1991). 79. Id. at 602. 80. Id. at 611. 81. Id. at 613. 82. United States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996). 83. 35 F.3d 1275 (9th Cir. 1993), cert. denied sub nor. Mariani v. United States, 513 U.S. 1128 (1995). 84. 53 F.3d 533 (2d Cir. 1995), cert. denied, 116 S.Ct. 773 (1996). 85. Ahmad, 101 F.3d at 391. 150 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 turing for a metal manufacturer." Under authority of the Envi- ronmental Protection Agency ("EPA") and provisions of the CWA, the company was required to sample its water discharge to in- sure acceptable levels of chemicals in the wastewater. 7 The de- fendant was convicted of "falsifying, tampering with, or render- ing inaccurate a monitoring device pursuant to the Clean Water Act.""8 On appeal, the defendant argued that the district court issued an improper jury instruction as to the knowledge element of the indictment.89 He contended that the jury instruction should have stated that he could not be found guilty unless the jury found that he knew he was acting in violation of the Clean Water Act.9" The court of appeals affirmed the decision of the district court.9 The court determined that there was a pre- sumption of awareness as to the regulation which precluded the application of mens rea to the entire statute.92 The Hopkins court proceeded to state that the legislative history of the CWA, specifically section 1319(c)(2)(A), supports the conclusion that the government does not need to prove that the defendant knew his conduct was unlawful. 93 Likewise, the defendants in Weitzenhoff alleged that the court erred in its interpretation of "knowingly" under section 1319(c)(2) of the CWA.94 In this case, the defendant was convicted of per- mitting discharge of sludge directly into the ocean without treat- ment.9" As in the Hopkins case, the court turned to an analysis of legislative history in light of the finding that the controlling statute offered no clear answer.96 The court found that because reports accompanying bills from the House and Senate:
86. Hopkins, 53 F.3d at 535. 87. Id. 88. Id. at 534. 89. Id. at 537. 90. Id. 91. Id. 92. Id. (citing United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 565 (1971)). The court stated that "where . . . dangerous or deleterious devices or prod- ucts or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." Id. 93. Hopkins, 53 F.3d at 539. 94. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), cert. denied sub nom. Mariani v. United States, 513 U.S. 1128 (1995). 95. Id. at 1282. 96. Id. at 1283. 1997] UNITED STATES v. AHMAD
speak in terms of 'causing' a violation, the congressional explana- tions of the new penalty provisions strongly suggest that criminal sanctions are to be imposed on any individual who knowingly engages in conduct that results in permit violations, regardless of whether the polluter is cognizant of the requirements or even the existence of the permit.97 The court cited United States v. International Minerals and Chemical Corp.9" in support of its position. The final argument that the government made against Ahmad was that his violations of the CWA fell into the category of pub- lic welfare offenses.99 As such, the government argued that there is no required showing of mens rea." Although there is no statutory definition of a "public welfare offense," the court in Ahmad cited to and accepted the Supreme Court's interpretation of the term in Staples.'01 The term "public welfare offenses" refers to cases in which Congress intends to impose strict criminal liability through stat- utes that do not require the defendant to know the facts that make his conduct illegal."°2 In such cases, the Court has inter- preted Congressional silence to mean that no proof of mens rea is required to establish the offense.'13 The Staples Court proceed- ed to state that such public welfare offenses have been created by Congress and recognized by the Court in limited circumstanc- es."°4 The Court stated that public welfare offenses should in- volve statutes that regulate potentially harmful or injurious items.' O Public welfare offenses require that the defendant knows he is dealing with something that puts him "in a responsi- ble relation to a public danger."' 6 As a result, he should be
97. Id. at 1284. 98. United States v. International Minerals and Chemical Corp., 402 U.S. 558, 560-62 (1971) (holding that the term "knowingly" referred to the acts made criminal rather than a violation of the regulation and that regulation was a shorthand des- ignation for the specific acts or omissions contemplated by the Act). 99. United States v. Ahmad, 101 F.3d 386, 391 (5th Cir. 1996). 100. Id. 101. Id. 102. Staples v. United States, 511 U.S. 600, 606 (1994). 103. Id. 104. Id. at 607. 105. Id. 106. Id. (citing United States v. Dotterwiech, 320 U.S. 277, 281 (1943)). NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 alerted to the possibility of strict regulation."7 In helping to interpret what is and is not a public welfare offense, the Court said the severity of the penalty imposed by the statute should be examined." 8 Small penalties logically accompany the absence of a mens rea requirement, whereas larger penalties imply the requirement of mens rea' °9 In Ahmad, the court was presented with several seemingly conflicting cases as well as a policy argument, all debating which verb or verbs the single adverb "knowingly" modified. Since the CWA itself provides little or no guidance, the court had to set about the task of analyzing and interpreting these arguments for itself.
IV. THE COURT'S REASONING: A STRICT APPLICATION Ultimately, the court determined that the appropriate applica- tion of the phrase "knowingly violates" rested with the Supreme Court line of cases rather than with the government's cases or its public welfare offense argument. To reach this conclusion, the court first had to search for precedent as to how to rule in find- ing for or against the defendant. The court stated "we will affirm if the charge, viewed in its entirety, is a correct statement of the law that plainly instructs jurors on the relevant principles of law."'10 Conversely, it found that "w]e will reverse a convic- tion ... if the instructions do not correctly state the law.""' From its reading of X-Citement Video and Staples, the court found that the Supreme Court has plainly stated that "statutory crimes carrying severe penalties are presumed to require that a defendant know the facts that make his conduct illegal.""' 2 The mens rea of knowledge should apply to each element of the crime."3 Furthermore, the court held that United States v. Baytank
107. Id. 108. Id. 109. Id. at 617. 110. United States v. Ahmad, 101 F.3d 386, 391 (5th Cir. 1996) (citing United States v. Allibhai, 939 F.2d 244, 251 (5th Cir. 1991)). 111. Id. (citing United States v. Gray, 96 F.3d 769, 775 (5th Cir. 1996)); United States v. Townsend, 31 F.3d 262, 270 (5th Cir. 1994)). 112. Id. at 390. 113. Id. at 391. 1997] UNITED STATES v. AHMAD
(Houston) Inc. was directly analogous to Ahmad's interpretation of the CWA." 4 Speaking to the analogy between Baytank and the case at bar, the court stated that "we find it eminently sensi- ble that the phrase 'knowingly violates' in section 1319(c)(2)(A), when referring to other provisions that define the elements of the offenses section 1319 creates, should uniformly require knowledge as to each of those elements rather than only one or two.""' 5 If "knowingly violates" were not so applied, an explana- tion would be required as to why some elements should be given different treatment than others." 6 The court found no such ex- planation in either the cases examined or in the evidence pro- duced by either party."7 The next step for the court was to distinguish the government's cases, United States v. Hopkins and United States v. Weitzenhoff, from its decision. The court dispensed with both of these cases in a terse fashion, finding them easily distinguish- able from the case at bar.' The Hopkins court found that the government did not have to demonstrate that the defendant knew that his acts were illegal.' In that case, however, the illegality of the defendant's actions was not an element of the offense. 2 ' Likewise, in Weitzenhoff, the court was concerned almost entirely with whether or not the CWA created a mistake of law defense.12" ' Ahmad's defense, however, was predicated on mistake of fact and statutory construction issues, neither of which were directly addressed in either Hopkins or Weitzenhoff.'22 Because the Staples case was based on a mis- take of fact defense, the court found more credibility in the Su- preme Court's reasoning."' The final issue the court had to deal with was the government's argument that violations of the Clean Water Act
114. Id. at 390. 115. Id. 116. Id. 117. Id. 118. Id. 119. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995), cert. denied, 116 S.Ct. 773 (1996). 120. Id. 121. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), cert denied sub norn. Mariani v. United States, 513 U.S. 1128 (1995). 122. Ahmad, 101 F.3d at 390-91. 123. Id. 154 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 should constitute public welfare offenses and, therefore, preclude a mens rea requirement as to the elements of the crime. Again, the court relied heavily on the reasoning in Staples, emphasizing that the public welfare offense exception to mens rea require- ments is a narrow one. 24 The Staples Court found that "the statute prohibiting the possession of machine-guns fell outside the exception, notwithstanding the fact that '[t]ypically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items"'. 2 The Court in Staples held that the primary factor in determining if a crime falls with- in the public welfare offense exception is whether "dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct."'26 The Ahmad court found that the CWA offenses Ahmad was charged with had this exact characteristic.'27 If knowledge was not required as to the na- ture of the substance Ahmad pumped out of his tank, and if he honestly and reasonably believed it was just water, he may still have been found guilty since the substance turned out to be something else.2 By reason of comparison, the court also assert- ed that even though gasoline may be a "potentially harmful or injurious substance" it is no more so than machine-guns, which were found to fall outside the public welfare offense exception in Staples.2 9 In further support of its finding, the court pointed out that public welfare offenses have almost always been punish- able by relatively small fines or short jail terms, whereas viola- tions of section 1319(c)(2)(A) are punishable by several years in jail. i ° This only served to strengthen the court's resolve in find- ing that Ahmad's actions fell outside the narrowly defined bounds of public welfare offenses. On the basis of this evidence, the court found that the instruc- tions misled the Ahmad jury as to the elements of the of- fense.131 There was at least a reasonable likelihood that the ju- ry could infer that knowledge was required only as to the fact
124. Id. at 391. 125. Id. (citing Staples v. United States, 511 U.S. 600, 607 (1994)). 126. Id. (citing Staples, 511 U.S. at 618). 127. Id. 128. Id. 129. Id. 130. Id. 131. Id. 1997] UNITED STATES v. AHMAD 155 that something was discharged, and not to any other elements in question."2 As a result, the convictions against Ahmad were reversed."' V. ANALYSIS: WHERE DOES AHMAD STAND TODAY? The holding of the Ahmad case is by no means the definitive, universally applied answer on the issue of the mens rea require- ment and the application of the public welfare offense doctrine regarding statutory regulations. Both cases that the court relied upon in forming their decision contain strong dissents by mem- bers of the Supreme Court.' In Staples, the majority stated that "[t]he holding here is a narrow one that depends on a common sense evaluation of the nature of the particular device Congress has subjected to regula- tion . .. ."' The Staples Court proceeded to say that the hold- ing does not set forth comprehensive criteria for distinguishing between crimes that do not require a mens rea element and those that do.' 6 Justice Stevens, joined by Justice Blackmun, went even further in examining the history and language of the Act, and harshly criticized the majority's decision. Justice Stevens argued that the statute in question did in fact provide explicit guidance as to how "knowingly" should be applied.1 ' He stated that the Act intentionally does not contain a knowl- edge requirement nor does it describe a common law crime.' Justice Stevens proposed that this absence suggested that Con- gress did not intend for there to be a requirement of proof that the defendant knew all of the facts making his conduct ille- gal.' 9 He also noted that when the Act was created, it was in- tentionally modeled after the Anti-Narcotic Act, which did not require proof of knowledge of all of the facts constituting the
132. Id. 133. Id. 134. See Staples v. United States, 511 U.S. 600, 624 (1994) (Stevens, J., dissent- ing). See also United States v. X-Citement Video, Inc., 513 U.S. 64, 80 (1994) (Scalia, J., dissenting). 135. Staples, 511 U.S. at 601. 136. Id. 137. Id. at 625 (Stevens, J., dissenting). 138. Id. 139. Id. at 626. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 offense. 4 ° He proceeded to contend that the Act shared all the characteristics of a public welfare offense as outlined in previous cases, 141 and that this statute was a "regulatory 42 measure in the interest of public safety.'; Similarly, Justice Scalia, joined by Justice Thomas, authored a critical dissent to the holding in the X-Citement Video case.1" He stated that "[nIone of the decisions cited as authority support interpreting an explicit statutory scienter requirement in a man- ner that its language simply will not bear."'" Justice Scalia ar- gued that the majority, in citing Staples and United States v. United States Gypsum Co. as authority, "applied the background common law rule of scienter to a statute that said nothing about the matter."'" He further contended that in United States v. Thomas,1" the Ninth Circuit interpreted the statute in ques- tion to "require knowledge of neither the fact that the visual depiction portrays sexually explicit conduct nor the fact that a participant in that conduct was a minor.''"4 Continuing his dis- sent, Justice Stevens proposed that the "most natural grammati- cal reading" by the majority is the only reading that can be made, not unlike saying "that the ordinarily preferred total for 2 plus 2 is 4."'" In his opinion, it would be impossible to con- struct a sentence in the statute that more clearly conveyed the idea that "knowingly" applies only to part of the statute and not the whole, since the term is contained in an entirely separate clause from the one that the majority would have it apply to.'49 Based on this reading of the statute, Justice Scalia found that there was no doubt or ambiguity as to the application of "know-
140. Id. at 627. 141. See United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 565 (1971); Morissette v. United States, 342 U.S. 246, 252-254 (1952). 142. Staples, 511 U.S. at 630 (Stevens, J., dissenting) (citing United States v. Freed 401 U.S. 601 (1971)). 143. United States v. X-Citement Video, Inc., 513 U.S. 64, 80 (1994) (Scalia, J., dissenting). 144. Id. 145. Id. See Staples, 511 U.S. 600 (1971); United States v. United States Gypsum Co., 438 U.S. 422 (1978). 146. 893 F.2d 1066 (9th Cir. 1990). In Thomas, the defendant was convicted on three counts of violating statutory child pornography laws. 147. United States v. X-Citement Video, Inc., 513 U.S. 64, 81 (citing Thomas, 893 F.2d 1066, 1070 (9th Cir. 1990)). 148. 513 U.S. 64, 81. 149. Id. 1997] UNITED STATES v. AHMAD
ingly" in the statute."W While not accepted in the Ahmad case, the holdings in the Hopkins and Weitzenhoff cases have been followed in other juris- dictions. After considering the language of the statute, its legisla- tive history and the nature of the Clean Water Act, the Ninth and Second Circuits "have expressly held that under the criminal provision of the CWA, 33 U.S.C. section 1319(c)(2)(A), a defen- dant need only be aware of his acts; he need not have knowledge of the statute or regulations or that his conduct was unlaw- ful."'' The decision of the Second Circuit in Hopkins is reflec- tive of most other circuits, which have concluded that "under the environmental laws, 'knowledge' as defined in the statute, is not a burden the government must meet."'52 In United States v. Dee"5 , the Fourth Circuit interpreted the Resource Conserva- tion and Recovery Act (RCRA), an environmental act similar to the CWA, and held that "the government was only required to prove that the defendants knowingly committed the acts charged in the indictment and that they knew the general nature of the wastes involved.' 54 The Fourth Circuit decision in Dee is consistent with the ma- jority of circuits that have interpreted the mens rea requirement of the RCRA.1 Proponents of a strict mens rea requirement in the CWA and other environmental acts have overlooked public policy goals that justify a less strict intent standard: namely that crimes violating these acts have potentially significant adverse effects on public health and safety.' By enacting environmen- tal laws such as the CWA, Congress has stated that harm to the environment is a public policy of the greatest concern.'57 Cases such as Liparota, X-Citement Video and Staples, which have all applied a strict mens rea requirement, have been expressly dis-
150. Id. 151. Barrett, supra note 3, at 114 (citing United States v. Weitzenhoff, 35 F.3d 1275, 1292 (9th Cir. 1993) and United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995), cert. denied, 116 S.Ct. 773 (1996)). 152. Stanley A. Twardy, Jr. & Michael G. Considine, What Must One "Know" to be Convicted Under the Environmental Laws?, 11-SPG NAT. RESOURCES & ENV'T 48, 50 (1997). 153. 912 F.2d 741 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991). 154. Barrett, supra note 3, at 115-16 (citing Dee, 912 F.2d at 745-46). 155. Id. 156. Id. at 117-18. 157. Id. at 118. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 tinguished from public welfare offenses pertaining to environ- mental concerns such as the type addressed in International Minerals."8 Ahmad directly challenges a history of cases, be- ginning with International Minerals in 1971 and continuing through the Weitzenhoff decision in 1995, in which courts have held that "because environmental statutes protected human health and the environment, they were public welfare statutes for which the government need prove only that defendants pos- sessed a general intent in committing a violation."'5 9
VI. CONCLUSION: THE FUTURE OF MENS REA AND THE CLEAN WATER ACT Perhaps the most clearly defined conclusion that can be drawn from the Ahmad case is that the future of the mens rea require- ment and the application of the public welfare offense doctrine to environmental acts such as the CWA are decidedly unclear. There is no statutory definition of a public welfare offense. However, starting with Morissette, the Supreme Court has at- tempted to enumerate characteristics common to public welfare offenses: Intent is not a necessary element of a violation; there is no direct- ly analogous common-law offense; penalties are relatively small, and conviction does no grave damage to an offender's reputation; many involve neglect where the law requires care, or inaction where the law imposes a duty, as opposed to common law offens- es, which pertain to positive aggressions or invasions; many in- volve the mere threat of injury to individuals or property; they are offenses against the authority of the state; and the violation can be prevented by exercising a reasonable level of care.' Ahmad is a paradox since many of the facts of the case bring it directly within these characteristics while others tend to pre- clude labeling it as a public welfare offense. It is clear that Ahmad's actions involved more than a mere threat of injury to individuals and property. The lives of school children and city employees were placed directly in harm's way
158. Id. at 120-21. 159. Robert W. Tarun & Kyle L Harvey, Ahmad: Erosion of the Public Welfare Offense Doctrine, 4 NO.5 Bus. CRIMES BULL.: COMPLIANCE & LITIO. 7 (1997). 160. Id. (citing Morissette v. United States, 342 U.S. 246, 252-54 (1952)). 1997] UNITED STATES v. AHMAD when a portion of the discharged gasoline ended up in the city sewage treatment plant.16' A threat of damage to the local, and perhaps even the national environment, loomed when gasoline was discovered in Possum Creek, which eventually drains into Lake Houston.'62 Fire officials testified that the possibility of property 16damage3 ranging in the millions 'of dollars was also a concern. Furthermore, the alleged violation could arguably have been prevented through the exercise of a reasonable level of care. Ahmad was told that in order to repair the leak, the tank would 6 have to be completely emptied. 1 CTT offered to perform this task and provided Ahmad with an estimate." An employee of CTT testified that she told Ahmad it would be illegal and dan- gerous for him to empty the tank on his own, yet he proceeded to do so.'66 Had Ahmad exercised a reasonable level of care by allowing a company such as CTT to properly and safely drain the tank, the subsequent threat and alleged violation could have been avoided. Based on these facts, a strong argument can be made that Ahmad's actions constituted a public welfare offense. Conversely, a consideration of the penalties imposed for viola- tions of the CWA lends credence to the argument that Ahmad's actions should not be considered a public welfare offense. Viola- tion of 33 U.S.C. sections 1319(c)(2)(A) and 1319(c)(3) imposes fines of $5,000 to $50,000 and three years imprisonment, and up to $250,000 and fifteen years imprisonment, respectively.'67 Since public welfare offenses apply, presumably, only to those offenses which otherwise carry relatively small penalties, it would be difficult to classify Ahmad's actions as a public welfare offense considering the severity of the punishment already im- posed by the statute. The Fifth Circuit, by holding that the CWA requires a strict application of "knowingly" to all elements of the Act, has put in jeopardy the effectiveness of that Act as a deterrent to alleged violators. The Ahmad Court, even though it attempted to distin-
161. United States v. Ahmad, 101 F.3d 386, 388 (5th Cir. 1996). 162. Id. 163. Id. 164. Id. 165. Id. 166. Id. 167. 33 U.S.C. §§ 1319(c)(2)(A) and (c)(3) (1997). NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 guish Hopkins and Weitzenhoff, nonetheless now represents opposition to the line of cases in which courts have held that violations of the CWA constitute a public welfare offense. A de- fendant on trial in the Fifth Circuit for violations of the CWA now has precedent with which to support a mens rea require- ment. Outside of the Fifth Circuit, that defendant at least has persuasive authority with which he can attempt to refute the Hopkins and Weitzenhoff lines of reasoning. The Ahmad holding could potentially have similar repercus- sions on other environmental acts such as the Resource Conser- vation and Recovery Act ("RCRA") of 1976168 and the Compre- hensive Environmental Response, Compensation and Liability Act ("CERCLA") of 1980169. These acts have a purpose similar to the CWA; protection of the environment. Although other cir- cuit court cases 170 have treated violations of these acts as pub- lic welfare offenses, Ahmad has opened the door to the argument that these similar environmental acts should also require an application of mens rea to every element of the act. As a result, the Fifth Circuit has weakened the ability of the CWA, and pos- sibly the RCRA, CERCLA and other environmental acts, to func- tion as deterrents for alleged violators such as Ahmad, and to provide protection for the public health, safety and welfare. The Supreme Court can resolve much of the disagreement over mens rea as it applies to environmental acts by speaking directly to the issue. In Staples, the Court discussed the requirement as it applies to the NFA. 17 1 In X-Citement Video, the mens rea re- quirement was analyzed as it applied to the PCASEA. 172 But one of the flaws in applying these cases to those such as Ahmad is that neither the NFA nor the PCASEA are environmental acts. Possessing an unregistered firearm and selling pornograph- ic videos of an underage actress do not speak to the same threat to the public safety as emptying a gasoline storage tank into a city sewer system. As a result, the circuit courts have been bur- dened with the task of trying to interpret which parts of holdings
168. 42 U.S.C. §§ 6901-6992k (1994). 169. 42 U.S.C. §§ 9601-9675 (1994). 170. See United States v. Dee, 912 F.2d 741 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); United States v. Laughlin, 10 F.3d 961 (2d Cir. 1993), cert. denied sub nom. Goldman v. United States, 511 U.S. 1071 (1994). 171. Staples v. United States, 511 U.S. 600 (1994). 172. United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). 19971 UNITED STATES v. AHMAD such as Staples and X-Citement Video should be applied to the CWA. Instead of resolution, the result has been conflicting cir- cuit court opinions. Congress, in vaguely wording its statutes (or not vaguely wording them according to Justice Scalia), and the Supreme Court by remaining silent on the issue, have spurred a difference of interpretations among the federal circuit courts. Perhaps it was the intent of Congress to allow the courts to interpret the acts as they see fit, or perhaps it was an oversight in need of correction and clarification. While the holdings of cases such as Hopkins and Weitzenhoff currently appear to constitute the ma- jority opinion of the circuit courts, it has yet to be seen if the holding in Ahmad will be applied outside of the Fifth Circuit. The Fifth Circuit has, however, carved out a niche for future defendants such as Attique Ahmad to cling to in the face of a pending public welfare offense claim. While the Supreme Court has spoken broadly as to the public welfare offense and the req- uisite mens rea issues as applied to certain Congressional acts and the elements of crimes therein, it has yet to speak directly on point concerning an environmental act. Until the Court does so, it is clear that differences in statutory interpretation will continue to exist.
SPECIAL FEATURE
INTRODUCTION TO THE BEST PETITIONER AND RESPONDENT BRIEFS FROM THE FIFTH ANNUAL SALMON P. CHASE COLLEGE OF LAW ENVIRONMENTAL LAW MOOT COURT COMPETITION The Salmon P. Chase College of Law Moot Court Board hosted its Fifth Annual National Environmental Law Moot Court Com- petition on February 28-March 1, 1997. This year's event attract- ed teams from various schools east of the Mississippi. The law schools that participated this year included: University of Akron, University of Cincinnati, University of Dayton (two teams), Ohio Northern University-Claude W. Pettit College of Law (two teams), University of Toledo (two teams), Widener University, and the University of Wisconsin (two teams). Each team submitted an appellate brief and argued a mini- mum of four rounds. The fictitious case between Van deLay Industries, Inc., and Costanza Development, revolved around the hotly debated topic of innocent landowner liability. The case explored whether constructive knowledge was enough to deny a landowner the right to use the innocent landowner defense. Apparently Constanza Development, Inc. had purchased an industrial site from Kramer Enterprises, Inc. which had spilled high concentrations of trichloroethylene (TCE) on the ground, and had failed to report the spill to either the authorities or Costanza Development. The TCE had migrated into the ground- water, causing contamination that Van deLay subsequently had to clean up. When Van deLay went looking for contribution from other PRPs, Costanza Development was the only owner of the property between Kramer and Van deLay. Costanza denied ever having knowledge of a spill; yet, the week of the purchase, Kramer hid the spill, which was on the main access road into the property, by covering it with a layer of fresh topsoil. The main issue was whether Costanza, who hired a fledgling environmen- tal consulting firm to do a site inspection, should have seen the disturbed land, and should be held responsible for the fledgling consulting firm's lack of expertise in the situation. Both CERCLA and RCRA issues were thoroughly argued. Seven of the area's finest environmental law practitioners and
163 164 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 members of the judiciary presided over the final round. This prestigious bench included: Judge Sara Walter Combs, Common- wealth of Kentucky Court of Appeals, Stanton, Kentucky; Dean David C. Short, Dean and Professor of Law at Salmon P. Chase College of Law, Highland Heights, Kentucky, and former Direc- tor of the Mineral Law Center at the University of Kentucky, Lexington, Kentucky; James M. Ellerbe, environmental law prac- titioner with Ashland, Inc., Lexington, Kentucky; Philip J. Schworer, Esq., Partner, Environmental Law Department, Dinsmore & Shohl, Cincinnati, Ohio; David A. Owen, Esq., envi- ronmental law practitioner, Greenebaum, Doll & McDonald, Lexington, Kentucky; A. Christian Worrell, III, Partner, Graydon, Head & Ritchey, Cincinnati, Ohio; and Henry L. Stephens, Jr., Professor of Law and former Dean of the Salmon P. Chase College of Law, Highland Heights, Kentucky. The winners of the Competition were Chris Butz and Deirdre Sheehan of Ohio Northern University-Claude W. Pettit College of Law with Tara Grause and John Hatcher of the University of Cincinnati as runners-up. Tara and John were also judged Best Brief Winners for their Petitioner brief. Best Respondent's Brief was submitted by the University of Wisconsin Team consisting of Kimberly D. Maney and Thomas E. Carter. Best Oralist honors went to Chris Gronin of the University of Toledo. The Salmon P. Chase Moot Court Board was organized in 1971 by professors Frederick Schneider and Frederic Gray. Pro- fessor Kamilla Mazanec currently serves as the Faculty Advisor. The student-run board for the 1996-97 year was led by R. Shannon Morgan. The 1997 Chase National Environmental Law Competition was chaired by Renee Chinn with Mark Kenyon and Brad Kraemer acting as problem writers. Both the Chase National Environmental Law Moot Court Competition and the Natural Resource and Environmental Law Issue of the Northern Kentucky Law Review are funded by a gift from Greenebaum, Doll & McDonald, PLLC, of Louisville, Lexington, and Covington, Kentucky. Salmon P. Chase College of Law expresses its thanks to the firm for its support.
M. Patia R. Tabar Moot Court Board Chief Justice 1997-98 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MANZERIA ) VAN DELAY INDUSTRIES, INC. ) ) Plaintiff, ) v. ) Docket No. ) 96-NK-1645 ) ) COSTANZA DEVELOPMENT, INC. ) ) Defendant.
MEMORANDUM OPINION
INTRODUCTION AND PROCEDURAL HISTORY
J.S. Poppy, District Judge:
Plaintiff Van deLay Industries, Inc. ('Van deLay') has institut- ed this action against Defendant Costanza Development, Inc. ("Costanza"), seeking injunctive relief and damages for alleged disposal of hazardous substances in violation of the Comprehen- sive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a)(2). Additionally, Van deLay claims in Count II of his complaint that Costanza is in violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), due to the presence of haz- ardous waste which was illegally disposed of on Van deLay's property. Van deLay asks for injunctive relief and damages against Costanza for the clean up of Van deLay's property and cost of alternative water supplies. Defendant Costanza filed a motion to dismiss both Counts of the complaint for lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1). Both parties have submitted 166 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 deposition excerpts, declarations, exhibits and briefs which sum- marize the evidence and their respective positions. While the motions are made as motions on the pleadings, the court may consider matters outside of the pleadings on a motion to dismiss. In doing so, the motion may be treated as one for summary judg- ment under Fed. R. Civ. P. 56, and the court will do so here. See Fed. R. Civ. P. 12. The facts, as summarized below, are undis- puted by the parties, though they disagree as to their signifi- cance. The application of law to these facts and the Court's con- clusions of law are set forth below.
FINDINGS OF FACT Van deLay Industries, Inc.:
Plaintiff Van deLay is a Manzeria corporation with its princi- pal place of business in Seinfeld, Manzeria. Van deLay is a cata- log distribution company for J. Peterman Fashions. In March, 1995, seeking a central site for a new distribution and office center, Van deLay inquired about the purchase of a sixty acre site in Seinfeld, owned by Costanza Development. The site had many advantages desired by Van deLay; it was pristine and inhabited with old growth forests on its eastern forty acres.' Van deLay opened its campus and distribution center in July, 1995, and supplied the complex with water by drilling a well which tapped into an underground aquifer approximately eighty feet below the surface. Van deLay's operations were successful, with a boom in cata- log industries occurring in late 1995. Van deLay decided to ex- pand its current operations on the sixty acre Seinfeld site by refurbishing an old factory left from a previous owner, Kramer Enterprises, Inc. ("Kramer"), located on the west twenty acres of its property. Existing on the old Kramer site was a water well previously used in Kramer's operations. Van deLay thought it could use the old well as the water source for its new expansion and, as a precaution, had the water tested for purity. The Manzeria Department of Health and Environment ("MIDHE")
1. Van deLay Industries, Inc. is known for its promotion of "green" industry, using recycled paper in all its catalogs and construction of "natural" office campuses secluded within pastoral settings. 19971 MOOT COURT PROBLEM 167 performed a test on the well and results showed high concentra- tions of trichloroethylene ("TCE") in the well. As a result of the test on the well, the MDHE performed an environmental audit of the area, finding not only TCE in the well, but also contamination within the surrounding soil existing down to the level of a slow moving aquifer located approximately eighty feet below the surface. Levels found to exist in soil were consistent with an upper bound lifetime risk of an additional cancer of 10-6.2 The aquifer was the same that supplied Van deLay's well at its east side operations. After learning of the contamination from MDHE, Van deLay ceased using its east side well. Further testing on this well showed no indication of any contamination. To be safe, Van de- Lay built a water storage facility and had all its water "trucked" in to the site. Van deLay then filed this action in an attempt to effectuate a clean up of the area, so it would have a safe and healthy work environment.'
Kramer Enterprises, Inc.: Kramer was a Manzeria corporation located at the present Van deLay site. In the mid 1970's, its founder, Cosmos Kramer, started operations to pursue his life's dream-the production of ' The Beach" cologne and various latex products. Kramer built a factory on the west twenty acres of the sixty acre site and began production. In the production and shipping processes, Kramer used many chemicals, among them TCE. The chemicals were stored in barrels located outside the factory. In the late 1970's the bottom fell out of the market for Kramer products. 'The Beach" sales were slumping, receiving poor re- views in trade publications.' Latex usage was down as there was a push for all-natural, cotton-like fabrics within the fashion in- dustry. Kramer decided to sell the property (Cosmos Kramer planned to join the Nike Pro Golf Tour). Kramer was approached by Defendant Costanza about purchase of the property and nego-
2. The risk associated with an upper bound lifetime risk of an additional can- cer of 10-6 is very minimal-virtually the same risk associated with a "clean" site. 3. All parties involved have stipulated that Van deLay is in "substantial com- pliance" with 42 U.S.C. §§ 9607 (a)(4)(B), incurring its costs as a "necessary" re- sponse consistent with the national emergency plan. 4. Fragrance Today called 'The Beach,".. surpassed only by the odor of rotting fish on the New Jersey shoreline." 168 NORTHERN KENTUCKY LAW REVoEW [Vol. 25:1
tiations progressed well. Negotiations were concluded on Novem- ber 15, 1980, at which time Kramer agreed to Costanza's request to remove all barrels located on the property prior to closing. The sale of the property became final December 1, 1980.
Costanza Development: Defendant Costanza is a Manzeria corporation with its princi- pal place of business in Seinfeld, Manzeria. Costanza was found- ed by George Costanza, with an eye toward developing prize real estate in the Seinfeld area. Costanza desired the Kramer site for use in developing a fantasy baseball, health spa complex. On November 22, 1980, Kramer started to remove the barrels of chemicals surrounding the factory. For this purpose, Cosmos Kramer borrowed the use of an old mail truck from his friend, Newman, and began hauling the barrels away. During the pro- cess, the wheels on one side of the truck sunk and became em- bedded in sandy soil predominating the site. The barrels within the truck became dislodged and rolled out the back, spilling the contents of eighteen of the barrels onto surrounding soil. Cosmos Kramer retrieved the barrels (which had contained TCE) and left their contents to seep into the soil (after putting a thin coat of topsoil over this previously undisturbed area). On November 23, 1980, Costanza hired Drake Engineering, a geotechnical firm that had just started consulting in issues relat- ed to CERCLA and RCRA, to do a site assessment. Drake Engineering's report made no mention of the discovery of the disturbed soil. No soil or water samples were taken and there was no mention of Kramer's prior business or use of the proper- ty. Shortly after removal, funding for the Costanza development fell through and Costanza was unable to immediately effectuate its plans. Costanza retained the site as an investment property, and it remained in that status until 1995. In March 1995, Costanza was contacted by Elaine Bennis, President of Van de- Lay Industries, Inc. about the availability of the property. The parties quickly concluded a deal for the property and the sale was completed in late March 1995. 1997] MOOT COURT PROBLEM
CONCLUSIONS OF LAW L "Passive"Disposer Liability under CERCLA Costanza seeks a dismissal of Van deLay's CERCLA claim by contention that it is not a disposer as covered within the statute. CERCLA employs a bifurcated mechanism to effectuate the cleanup of hazardous cites through federal government response under the Superfund, and through private actions to recover cleanup costs from those responsible for their creation. 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990). To establish a prima facie private action under CERCLA, a party must show that (1) the site is a "facility" with- in the definition of CERCLA, Section 101(9), 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of a hazardous substance has occurred, 42 U.S.C. § 9607(a)(4); (3) the "release" or "threat- ened release" caused the party to incur "necessary" response costs "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and, (a)(4)(B); and (4) the defendant is within one of the classes of persons subject to liability provisions of Section 107(a). Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989). While admitting Van deLay has satisfied the first three re- quirements of a prima facie private action, Costanza contends that the final requirement (that Costanza is within a class of persons subject to liability), as a matter of law has not been shown. CERCLA defines sudch "potentially responsible parties" by stating, in relevant part: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section-
(2) any person who at the time of disposal of any hazardous sub- stance owned or operated any facility at which such hazardous substances were disposed of,
(4) ...shall be liable for-
(C) damages for injury to, destruction of, or loss of natural re- sources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and (D) the costs of any health assessment or safety effects study carried out under section 9604(i) of this title. 170 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
42 U.S.C. §9607(a), ELR Stat. CERCLA §107(a). Costanza argues that the migration of the hazardous waste within the property should not incur liability absent his affirma- tive act or omission in causing the substance to enter the envi- ronment. While this is an issue of first impression for this court, persuasive authority for this proposition is found in other juris- dictions and is instructive. See United States v. CDMG Realty Co., 96 F.3d 706 (3rd Cir. 1996). The core question is whether "passive" disposers, never engag- ing in actual acts or omissions resulting in leaking, spilling or leaching of hazardous substances, should be liable. A reading of the text of CERCLA within its plain meaning, and the liability structure employed by the Act, necessitate this court to agree with the Third CirCuit's analysis that passive migration of con- taminants does not constitute disposal under CERCLA. Id. Such judicial expansion of CERCLA liability should not be established absent clear Congressional intent. This court declines to do so and accordingly finds as a matter of law that Costanza is not a potential responsible party as defined within 42 U.S.C. § 9607(a), ELR Stat. CERCLA §107(a). The motion to dismiss on Count I (CERCLA) is granted in favor of Defendant Costanza.
II. Innocent Landowner Defense Alternatively, Defendant Costanza asserts that he should not be held liable under CERCLA, as the Act's "innocent landowner" exemption protects him from liability. However, in order to assert the defense under 42 U.S.C. § 9607(b)(3), an "innocent landowner" must fulfill all four prongs defined by the statutes as follows: (1) The release or threat of release of a hazardous substance and the resulting damages was caused solely by an act or omission of a third party; (2) The third party's act or omission did not occur in connection with a con- tractual relationship with the defendant; (3) The defendant exer- cised due care with the hazardous substance; and (4) The defen- dant took precautions against the third party's foreseeable acts or omissions or the foreseeable consequences resulting therefrom. United States v. Pacific Hide and Fur Depot, Inc., 716 F.Supp. 1341, 1346-1347 (D. Idaho 1989). The first element of the defense needed to be satisfied is that 19971 MOOT COURT PROBLEM there must be a "release" or "threat of release" caused by acts or omissions of a third party. CERCLA, in defining "release" states that "release includes a disposal." 42 U.S.C.A. § 9601(22). The record shows that the hazardous substance in the ground at the site was not caused by any action of Defendant Costanza. It was not involved in the handling of the drums of TCE in question. The action bringing about the "release" was the faulty disposal of the drums by Kramer, a third party. Additionally, the third party's actions must not take place in a contractual relationship with the defendant. The record reveals that Costanza had no such contractual relationship with Kramer, thus meeting the CERCLA requirement. The Act's definition of a "contractual relationship" states that: [It] includes, but is not limited to, land contracts, deeds or other instruments transferring title or possession unless the real prop- erty on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous sub- stance on, in, or at the facility and one or more of the circum- stances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence: (i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous sub- stance which is the subject of the release or threatened release was disposed of on, in or at the facility ... (emphasis added). 42 U.S.C. § 9601(35)(A).
Costanza can thus avoid the contractual bar if he shows by a preponderance of the evidence that he did not know or should not have known of the existence of the hazardous substance in the ground or well. See United States v. Pacific Hide and Fur Depot, Inc., 716 F. Supp. 1341, 1347 (D. Idaho 1989). Costanza was not informed by Cosmos Kramer of the spill of TCE. The site assessment performed before purchase of the site reported no contamination and provided no notice to Costanza of any hazard- ous substance disposed on the property. Van deLay asserts in briefing that Costanza should be found to be in a contractual relationship with Kramer as he knew the barrels were to be re- moved, giving notice of a "threat of release." The court finds this argument unavailing, as Costanza had no reason to suspect that Kramer would be negligent in his handling of the TCE at the site. 172 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
In satisfying the third element, the defendant must exercise due care with the hazardous substance. The instant case is inap- posite of cases finding a lack of due care. See Wickland Oil Ter- minals v. Asarco, Inc., No. C-83-5906-SC, 1988 WL 167247 (N.D. Cal. Feb. 23, 1988) (finding innocent owner defense inapplicable where there was an obvious presence of slag piles containing lead and other metals on the property). There was no obvious presence of contamination to the site in question. Costanza fur- ther attempted to insure that its property was free from contami- nation by having a site assessment performed (producing no evi- dence of TCE). The audit sufficiently fulfills Costanza's due care requirement. Additionally, the audit serves to fulfill the final requirement that the defendant take precaution against the third party's foreseeable acts and the consequences resulting therefrom. Defendant Costanza has sufficiently satisfied the requirements of the innocent landowner defense. This court finds it should be protected from CERCLA liability as an innocent landowner of the site in question.
III. RCRA Liability A motion to dismiss is further sought against Count II of Van deLay's RCRA claim under 42 U.S.C. § 6972(a)(1)(B).' In treat- ing this motion as one for summary judgment under Fed. R. Civ. P. 56, the court will grant the motion "if the pleadings, deposi- tions, answers to interrogatories, and admissions on file, togeth- er with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The thresh- old inquiry is whether "there are any factual issues that properly can be resolved only by a finder of fact because they may reason- ably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). RCRA authorizes a citizen suit, stating in relevant part: any person may commence a civil action on his own behalf -
5. RCRA provides forinjunctive relief as requested here, allowing the court ". * to order such person to take such other action as may be necessary... ". 42 U.S.C. § 6972 (a)(2). 1997] MOOT COURT PROBLEM
(1)(B) against any person, including.., any past or present gen- erator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment... 42 U.S.C. § 6972(a)(1)(B). To grant an injunction compelling the defendant to act requires a showing of imminent and substantial endangerment. The hazardous waste must threaten immediate endangerment and excludes waste that no longer presents this type of danger. Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1255 (1996). In defining the issue, courts have applied require- ments of (1) a population at risk; and (2) a pathway to exposure. Price v. U.S. Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992). The risk that exists to Van deLay is not of an imminent and substantial nature. While there is existing contamination, the risk of exposure to the contamination is exceedingly low. The record reveals that Van deLay is aware of the contamination and has stopped use of the contaminated well, substantially lowering any risks to its population. Any pathway to exposure has been removed by knowledge of its existence and future avoidance of the well. To extend the use of RCRA for such speculative harm would be inharmonious with its intent. This Court therefore finds that Van deLay has not established that an imminent and substantial endangerment exists. Accordingly, Costanza's motion to dismiss is granted. Dated: September 23, 1996 /s/ J.S. Poppy United States District Judge 174 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
UNITED STATES COURT OF APPEALS FOR THE EIGHTEENTH CIRCUIT
VAN DELAY INDUSTRIES, INC. ) ) Plaintiff-Appellant, ) v. ) Docket No. ) 96-1021 ) ) COSTANZA DEVELOPMENT, INC.) ) Defendant-Appellee. )
Before SCHIFF, MCVEY and BRYSON, Circuit Judges. SCHIFF, Circuit Judge:
Appellant, Van deLay Industries, Inc. ("Van deLay") appeals from a judgment entered in the United States District Court for the Western District of Manzeria, granting motions to dismiss for appellee Costanza Development, Inc. ("Costanza") of Count I of the complaint for violation of the Comprehensive Environmen- tal Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a)(2), and Count II of the com- plaint for violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). Van deLay asks this court to reverse the findings of the District Court and find the following: (1) Damages as requested for remedial costs under CERCLA against appellee Costanza; and (2) Injunctive relief ordering appellee Costanza to effectuate clean up of the Van deLay site under RCRA. Upon review of the record below, we find the District Court erred in dismissing the CERCLA and RCRA claims against De- fendant Costanza. The decision of the District Court is reversed and remanded with instructions to award damages to Van deLay as further determined by the District Court and to order Costanza to effectuate a clean up of the Van deLay site. 1997] MOOT COURT PROBLEM 175
I. COSTANZA IS LIABLE UNDER CERCLA AS A "PASSIVE" DISPOSER WHERE THERE HAS BEEN MIGRATION OF A HAZARDOUS SUBSTANCE DURING ITS OWNERSHIP OF THE SITE. To show liability under CERCLA in a private action a Plaintiff must establish that; (1) the site is a "facility" for purposes of CERCLA, Section 101(9), 42 U.S.C. § 9601(9); (2) there has been a "release" or "threatened release" of a hazardous substance, 42 U.S.C. § 9607(a)(4); (3) the "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) the defendant is within one of four classes of persons subject to liability provisions of Section 107(a). 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir. 1990), cert. denied, 500 U.S. 917 (1991). Among the subjected classes is "any person, who at the time of disposal of any hazardous substance, owned or operated any facility at which such hazardous substances were disposed of; ...." 42 U.S.C. § 9607(a)(2), ELR Stat. CERCLA §107(a)(2). We feel that CERCLA imposes liability on a party where mi- gration of a hazardous substance is occurring on the premises. We adopt the view held in other jurisdictions that to encourage any other result would "substantially undermine CERCLA's goal of encouraging voluntary cleanup on the part of those in a posi- tion to do so." Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 22 ELR 20936 (4th Cir.) cert. denied, 113 S. Ct. 377 (1992). When read under the plain meaning of the statute (42 U.S.C. §9601(29)) terms incorporated from a definition of "disposal" under the Resource Conservation and Recovery Act (RCRA) are clearly passive and are needless of any human action. To require human action would be to render an arbitrary textual analysis without regard to the plain meaning and Congressional intent.
II. DEFENDANT COSTANZA IS LIABLE UNDER CERCLA WHERE IT IS UNABLE TO SUFFICIENTLY SHOW ELIGI- BILITY FOR AN "INNOCENT LANDOWNER" DEFENSE. The District Court found Defendant Costanza eligible to in- voke an "innocent landowner" defense available under 42 U.S.C. § 9607(b)(3) of CERCLA. We find this conclusion to be clearly erroneous for the reasons stated below. 176 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Congressional intent under CERCLA was to prevent innocent purchasers of land from being held liable for unknown hazardous substance disposal by previous owners. Westwood Pharmaceuticalsv. National Fuel Gas Dist. Corp., 767 F. Supp 456, 459 (W.D.N.Y. 1991). Van deLay asserts that Costanza was in a contractual relationship with Kramer at the time of the purchase. We find Plaintiff's argument persuasive. Where a purchaser discovers, after purchase, that the property is contaminated with hazardous waste, he may be absolved from liability if he proves by a preponderance of the evidence that he did not know the property was contaminated and there was no reason to know of such contamination. See 42 U.S.C. § 9601(35)(A). Satisfaction of this requirement under the SARA Amendments to CERCLA require that the landowner must have made "all appropriate inquiry" at the time of purchase. See 42 U.S.C. § 9601(35)(B). "All appropriate inquiry" necessitates that the landowner must have made inquiries to the previous owner- ship, and uses the property consistent with good commercial or customary practice in an effort to minimize liability. Hemingway Transport, Inc. v. Kahn, 174 B.R. 148, 165 (D. Mass. 1994). Costanza did not meet the "all appropriate inquiry" demands of CERCLA. He was fully aware of the presence of TCE on the land; the chemical was necessary for the conduct of business by the previous owner, Kramer Enterprises, Inc. Costanza ordered Kramer to remove the barrels of TCE from the lot prior to the sale. Although Costanza did have an environmental assessment performed, he did not participate (even in a supervisory capacity) in the removal of the barrels of TCE. Where a purchaser subse- quently learns of a "release" or "threatened release," then a duty arises to disclose the information to a new owner if the property is transferred. See 42 U.S.C. § 9607(a)(1). Costanza, at a mini- mum, knew there was the threat of a release, as he ordered Kramer to remove the barrels of TCE from the site. Yet, this information was never disclosed to the Plaintiff. For the purpose of evaluating "all appropriate inquiry," the court shall take into account any "reasonably ascertainable infor- mation about the property, the obviousness of the presence or likely presence of contamination of the property, and the ability to detect such contamination by appropriate inspection." 42 U.S.C. § 9601(35)(B). Costanza was also under a duty to take ''precautions against foreseeable acts or omissions of any third 1997] MOOT COURT PROBLEM party and the consequences that could result from such acts or omissions." 42 U.S.C. § 9607(B)(3). Willful ignorance of a release or threat of release cannot ex- cuse Costanza from compliance with either the due care or pre- cautionary requirements of CERCLA. CERCLA was intended to provide incentive for private parties to investigate potential sources of contamination, not to ignore them. See 42 U.S.C. §§ 9601(35)(a), 9607(b). Costanza may not now simply choose to forget that the barrels of chemicals ever existed on his property. To allow it to do so would completely undermine the effective- ness of CERCLA. Costanza took no precautions against possible contamination due to the acts of Kramer. He knew of the pres- ence of the barrels containing TCE, yet did nothing to supervise their removal from the property. He also did not disclose the information to the Plaintiff. For the above reasons, we hold that Defendant Costanza is unable to sustain an "innocent landowner" defense.
III. DEFENDANT COSTANZA IS SUBJECT TO LIABILITY UNDER RCRA WHERE THERE IS A POTENTIAL FOR FUTURE HARM, CONSTITUTING IMMINENT AND SUBSTANTIAL ENDANGERMENT. The court reviews de novo an order granting summary judg- ment. City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244, 250 (6th Cir. 1994). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admis- sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). We conclude that the District Court was similarly clearly erro- neous in finding an imminent and substantial endangerment non existent at the Van deLay site. While waste which no longer presents a danger is not included as "imminent and substantial," waste which threatens only a later impact is clearly included. See Meghrig v. KFC Western Inc., 116 S. Ct. 1251, 1255 (1996). While there is no present threat to persons on the Van deLay site, the threat still exists for future impact. Although no con- tamination has been detected at the newer well on the east side of the site, contamination within the ground water aquifer sup- plying both wells has the potential for future harm. We further NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 feel that the District Court's reliance upon Price v. U.S. Navy, 818 F. Supp. 1323 (S.D. Cal 1992), is misplaced. The Price court found no pathway to exposure contributing to an imminent and substantial endangerment as there was a concrete barrier which physically blocked exposure to contamination. In the instant case, no such physical barrier exists. While Price suggests that the risk of exposure is part of the equation in determining immi- nent and substantial endangerment, knowledge of the endanger- ment does not sufficiently ameliorate its potential effect, certain- ly not as completely as physical barriers to harm. Accordingly, a clear application of Price and Meghrig to the facts at hand, pre- vents a finding that there is no imminent and substantial endan- germent.
REVERSED on all counts.
The Court shall enter an Order of even date herewith in accor- dance with this Opinion. IN THE SUPREME COURT OF THE UNITED STATES ) COSTANZA DEVELOPMENT, INC. ) ) Petitioner, ) ) v. ) Docket No. 96-112 ) ) VAN DELAY INDUSTRIES, INC. ) ) Respondent. )
ORDER GRANTING CERTIORARI The petition herein for a writ of certiorari to the United States Court of Appeals for the Eighteenth Circuit is granted, in order that this Court may consider the following questions raised by the record:
I. Whether Defendant Constanza should incur liability under CERCLA (42 U.S.C. § 9607(a)(2)) as a disposer of a hazard- ous substance.
II. A. Whether Defendant Costanza is entitled to an "Innocent Landowner" defense under CERCLA (42 U.S.C. § 9607(b)(3)), and
B. Whether Defendant Costanza should incur RCRA liability under 42 U.S.C. § 6972(a)(1)(B).
Dated: December 28, 1996
IN THE SUPREME COURT OF THE UNITED STATES FEBRUARY, 1997
Case No. NK-112
COSTANZA DEVELOPMENT, INC., Petitioner, -v-
VAN DELAY INDUSTRIES, INC., Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE EIGHTEENTH CIRCUIT
BRIEF FOR THE PETITIONERS
John Hatcher Tara Grause Counsel for Petitioner University of Cincinnati School of Law NORTHERN KENTUCKY LAW REVIEW (Vol. 25:1
QUESTIONS PRESENTED
I. Under CERCLA § 9607(2) can a party incur liability under an active definition of disposal when the chemicals were spilled on the property by a third party?
II. Under CERCLA § 9607(b)(3) is a defendant entitled to the innocent landowner defense, despite the existence of a contractu- al relationship, when the date of purchase is nine days after TCE was spilled on the property, when the party commissioned a professional site assessment, when the party had a lack of spe- cialized knowledge about the TCE, when there was no negative information available about the site, and when the contamina- tion was hidden under a layer of soil?
III. Under RCRA § 6972(a)(1)(B), is a party liable for damages when they did not own the TCE or provide specifications for the handling or disposal of the TCE, and when the amounts of TCE present at the site are so minuscule that it is virtually a clean site?
TABLE OF CONTENTS
QUESTIONS PRESENTED ...... 182 TABLE OF CONTENTS ...... 182 TABLE OF AUTHORITIES ...... 185 OPINIONS OF THE COURTS BELOW ...... 186 STATUTES ...... 186 STATEMENT OF THE CASE ...... 190 SUMMARY OF THE ARGUMENT ...... 192 ARGUM ENT ...... 194
I. COSTANZA IS NOT LIABLE UNDER CERCLA BECAUSE VAN DELAY FAILS TO SATISFY THE FOURTH ELEMENT REQUIRED TO SUSTAIN CERCLA LIABILITY. THE FOURTH PRONG, REQUIRING COSTANZA TO BE A RE- SPONSIBLE PARTY, IS NOT MET BECAUSE COSTANZA DID NOT ACTIVELY DISPOSE OF A HAZARDOUS SUB- STAN CE ...... 194 1997] BEST BRIEF - PETITIONER
A. A review of the consequences of defining disposal pas- sively and an examination of the structure and policies of CERCLA make it clear that Congress intended an active interpretation of disposal. Costanza is not liable under CERCLA because it is not an active disposer of TCE ...... 195
1. The innocent landowner defense is destroyed if the definition of disposal is read to include the passive migration of hazardous substances ...... 196
2. The statutory language of CERCLA supports an ac- tive reading of the term disposal ...... 197
3. An active interpretation of disposal does not frustrate CERCLA's policy goal of encouragingprivate parties to cleanup environmental hazards ...... 198
II. COSTANZA IS ENTITLED TO THE INNOCENT LANDOWNER DEFENSE ...... 200
A. The land sales contract is not within CERCLA's defi- nition of a contractual relationshipbecause Costanza purchased the property after the disposal of TCE on the property and because Costanza did not know and had no reason to know of the disposal of TCE on the property ...... 201
1. Costanza bought the property after the disposal of the TCE occurred ...... 202
2. Costanza did not know of the disposal of TCE on the property ...... 202
3. Costanza conducted all appropriateinquiry into the past uses of the property and therefore had no reason to know of the disposal of TCE on the property because it hired a professional site as- sessment, because it had a lack of specialized knowledge about TCE, because no negative infor- mation existed 'about the site and because the 184 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
contamination was hidden under a layer of top soil and not obviously present on the site . 203
III. COSTANZA CANNOT INCUR LIABILITY UNDER RCRA BECAUSE COSTANZA NEVER CONTRIBUTED TO THE HANDLING OR DISPOSAL OF THE TCE, AND BECAUSE THERE IS NO IMMINENT AND SUBSTANTIAL HARM ASSOCIATED WITH THE LEVELS OF TCE AT THE SIT E ...... 205
A. The third element required for RCRA liability is not met because Costanza never contributed to the han- dling, storage, treatment, transportationor disposal of the TCE ...... 206
B. The first element required for RCRA liability is not met because conditions at the site do not present an imminent and substantial danger to humans or the environment ...... 207
CONCLUSION ...... 208 1997] BEST BRIEF - PETITIONER 185
TABLE OF AUTHORITIES COURTS:
United States Supreme Court
Dole v. United Steelworkers, 494 U.S. 26, 36 (1990) ...... 197 Jarecki v. G.D. Searle & Co., 367 U.S. 303, 306-307 (1961) ...... 197
Federal Courts
CPC International,Inc. v. Aerojet-General Corp., 759 F. Supp. 1269, 1278 (W.D. Mich. 1991) ...... 197 Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. Cal. 1989) ...... 197, 198 Foster v. United States, 922 F. Supp. 642, 660 (D.C.1996) ...... 206 Hemingway Transport,Inc. v. Kahn, 174 B.R. 148, 169 (U.S. Bankr. Ct. D. Mass. 1994) .. 203, 204 H.R.W. Systems v. Washington Gas Light Co., 823 F. Supp. 318, 348 (D. Md. 1993) ...... 197 In re Diamond Reo Trucks, Inc., 115 B.R. 559 (Bankr. W.D. Mich. 1990) ...... 195, 197 Nurad v. William E. Hooper & Sons, Co., 966 F.2d 837 (4th Cir. 1992) ...... 195, 198 Price v. United States Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992) ...... 207 Snediker Developers v. Evans, 773 F. Supp. 984, 989 (E.D. Mich. 1991) ...... 196 United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373 (8th Cir. 1989) ...... 206, 207 United States v. CDMG Realty Co., 96 F.3d 706 (3rd Cir. 1996) ...... 194, 195, 196, 197, 199 United States v. Pacific Hide & Fur Depot, Inc., 716 F. Supp. 1341, 1346 (D. Idaho 1989) ...... 200, 201, 202, 203, 204 United States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346 (N.D. Ill. 1992) ...... 195, 199 Westwood Pharm., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85,90 (2d Cir. 1992) ...... 200 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
STATUTES:
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 6903(3) (1980 & Supp. 1988) ...... 195, 197, 199.
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601(35)(A) (1986 & Supp. 1988) ...... 196, 200, 201, 202
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601(35)(B) (1986 & Supp. 1988) ...... 199, 200, 203, 204
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §. 9601(35)(C) (1986 & Supp. 1988) ...... 198, 200
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a)(1) (1980) ...... 194, 199
SECONDARY AUTHORITY:
Robert Bronston, The Case Against Intermediate Owner Liability Under CERCLA for Passive Migration of Hazardous Waste, 93 MICH. L. REV. 609 (1994) ...... 194, 195, 196, 198, 199
Shane Clanton, Passive Disposal of the Innocent Landowner Defense, 9 J. ENERGY NAT. RESOURCES & ENVTL. L. 255 (1993) ...... 196
OPINIONS OF THE COURTS BELOW
Van deLay Indus., Inc. v. Costanza Dev., Inc., Docket No. 96-CV-1645 (W.D. Manzeria 1996) Van deLay Indus., Inc. v. Costanza Dev., Inc., Docket No. 96-1201 (18th Cir. 1996) 1997] BEST BRIEF - PETITIONER
STATUTES
42 U.S.C. § 6903(3) (1988)
(3) The term "disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or haz- ardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. §§ 9601(35)(A),(B),(C) (1988)
(35)(A) The term "contractual relationship", for the purpose of section 9607(b)(3) of this title, includes, but is not limited to, land contracts, deeds or other instruments transferring title or possession, unless the real property on which the facility con- cerned is located was acquired by the defendant after the dispos- al or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a prepon- derance of the evidence:
(i) At the time the defendant acquired the facility the defen- dant did not know and had no reason to know that any haz- ardous substance which is the subject of the release or threat- ened release was disposed of on, in, or at the facility.
(ii) The defendant is a government entity which acquired the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by inheritance or be- quest.
In addition to establishing the foregoing, the defendant must establish that he has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title. 188 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
(B) To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowl- edge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontami- nated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.
(C) Nothing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or opera- tor of such facility who would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant ob- tained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowl- edge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such defendant.
(D) Nothing in this paragraph shall affect the liability under this chapter of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazard- ous substance which is the subject of the action relating to the facility.
42 U.S.C. § 9607(a) (1988)
(a) Covered persons; scope; recoverable costs and damages; inter- est rate; "comparable maturity" date Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section-
(1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous 1997] BEST BRIEF - PETITIONER 189
substance owned or operated any facility at which such haz- ardous substances were disposed of, (3) any person who by contract, agreement, or otherwise ar- ranged for disposal or treatment, or arranged with a trans- porter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration Vessel owned or operated by another party or entity and containing such haz- ardous substances, and (4) any person who accepts or accepted any hazardous sub- stances for transport to disposal or treatment facilities, incin- eration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance shall be liable ....
42 U.S.C. § 9607(b)(3) (1988)
(b) Defenses There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponder- ance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by ...
(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual.relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establish- es by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous sub- stance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions .... NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
STATEMENT OF THE CASE This is a civil action between Costanza Development, Inc. [hereinafter "Costanza"] and Van deLay Industries, Inc. [herein- after "Van deLay"]. Costanza brings this appeal, challenging the Eighteenth Circuit Court finding that Costanza is liable for dam- ages under the Comprehensive Environmental Response, Com- pensation, and Liability Act [hereinafter "CERCLA"], and under the Resource Conservation and Recovery Act [hereinafter "RCRA"], and is required to effectuate a clean up of the site lo- cated in Seinfeld, Manzeria. (Record at 10). Cosmos Kramer [hereinafter "Kramer"] originally owned the sixty acre Seinfeld, Manzeria site in the mid 1970s. (R. at 3). Kramer operated a factory on the west twenty acres of the prop- erty, where it manufactured cologne and various latex products. (R. at 3). In his manufacturing operations Kramer used many chemicals, including trichloroethylene [hereinafter 'TCE"], which were stored in barrels outside the factory. (R. at 3). In the mid 1980s, Costanza made Kramer an offer to purchase the sixty acre lot. (R. at 4). However, Costanza conditioned the purchase on Kramer's removal of the chemical filled barrels. (R. at 4). On November 22, 1980, Kramer removed the barrels of chemi- cals from the site. (R. at 4). During the removal, eighteen barrels of TCE were accidentally spilled. (R. at 4). Kramer retrieved the empty barrels, but allowed the chemicals to remain on the soil. (R. at 4). Kramer also hid the evidence of the spill from Costanza by placing a layer of top soil over the spilled chemicals. (R. at 4). On November 23, 1980, before closing the deal and without knowledge of the spill, Costanza hired a geotechnical firm to do a site assessment. (R. at 4). On December 1, 1980, after receiving a positive report from the assessment firm, Costanza closed the deal with Kramer for the sixty acre lot. (R. at 4). Ultimately, Costanza's plans for developing the property fell through and the property laid vacant for the fourteen years of Costanza's owner- ship. (R. at 4). In March 1995, Van deLay Industries purchased the sixty acre lot from Costanza in order to build an office and distribution cen- ter for its catalog company. (R. at 2). In July 1995, Van deLay drilled a well on the eastern portion of its property in order to reach an underground aquifer. (R. at 2). In late 1995, Van deLay decided to expand its current opera- 1997] BEST BRIEF - PETITIONER , tions onto the western twenty acres of the site. (R. at 2). Van deLay planned to utilize the factory and the water well which were left by Kramer. (R. at 2). As a precaution, Van deLay had the well water tested for purity, and the test results showed high concentrations of TCE in the well. (R. at 3). A subsequent envi- ronmental audit of the area showed that TCE was also present in the surrounding soil and at the level of the aquifer that sup- plies water to the east side of the property. (R. at 3). However, the study revealed that the level of TCE in the soil down to the level of the aquifer was very minimal. (R. at 3). So minimal in fact, that the levels in the soil had the same risk associated with a clean site. (R. at 3). After learning of the west well contamination on its property, Van deLay ceased using its east side well, even though further testing on the eastern well showed no indication of any contami- nation. (R. at 3). Van deLay then insisted on building a water storage facility and had all its water delivered to the site. (R. at 3). In response to the findings of contamination, Van deLay filed suit in the United States District Court for the Western District of Manzeria against Costanza seeking damages for the alleged disposal of hazardous substances in violation of CERCLA, 42 U.S.C. § 9607(a)(2), and seeking injunctive relief under RCRA, 42 U.S.C. § 6972(a)(1)(B), for the cleanup of Van deLay's proper- ty due to the presence of hazardous wastes and for the cost of the alternative water supply. (R. at 1). On September 23, 1996, the District Court granted defendant Costanza's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on Count I of the complaint for violation of CERCLA and Count II of the complaint for violation of RCRA. (R. at 1, 9). Van deLay appealed the District Court's decision and the United States Court of Appeals for the Eighteenth Circuit found that the District Court erred in dismissing the CERCLA and RCRA claims against Costanza. (R. at 10). Therefore, the Court reversed and remanded with instructions to award damages to Van deLay as further determined by the District Court and or- dered Costanza to effectuate a clean up of the Van deLay site. (R. at 10). This Court granted certiorari on December 28, 1996 in order to consider the following issues: 1) whether Defendant Costanza NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 should incur liability under CERCLA (42 U.S.C. § 9607(a)(2)) as a disposer of a hazardous substance; 2) whether Defendant Costanza is entitled to an "innocent landowner" defense under CERCLA (42 U.S.C. § 9607(b)(3)); and 3) whether Defendant Costanza should incur RCRA liability under 42 U.S.C. § 6972(a)(1)(B). (R. at 15).
SUMMARY OF THE ARGUMENT This case presents three issues to the Court. Under the first issue, respondent Van deLay claims that petitioner Costanza is a responsible party and is therefore liable under CERCLA for cleanup costs. In order to sustain a cause of action under CERCLA, Van deLay must prove Costanza is a responsible par- ty. Van deLay fails to satisfy this requirement. Van deLay contends that Costanza is liable as a responsible party because Costanza allegedly owned the facility at the time of the disposal of TCE. Courts are in debate regarding the inter- pretation of the disposal requirement for prior owners. While Van deLay relies on the passive definition of disposal in order to place liability on Costanza, many courts require an active or intentional form of disposal before liability arises. A discussion of the resulting consequences of defining disposal passively and a thorough examination of the structure and poli- cies of CERCLA make it clear that an active definition of dispos- al was intended by Congress. Therefore, Costanza is not liable under CERCLA for cleanup costs because Costanza is not a re- sponsible party. The second issue presented to the Court is whether Costanza is protected from CERCLA liability by the innocent landowner defense. The release of TCE on the property was caused solely by the actions of Kramer, a third party. Furthermore, Costanza acted with due care with respect to the TCE by requesting that it be disposed of by a company experienced in the proper han- dling of TCE. Kramer's experience in the disposal of TCE led to Costanza's reasonable assumption that Kramer would properly dispose of the TCE, thereby removing the need for precautions against Kramer's actions. Costanza, therefore, fulfills three out of the four requirements for the innocent landowner defense. The fourth requirement of the innocent landowner defense pro- hibits a contractual relationship between Costanza and Kramer. Costanza's land sale contract is considered a contractual rela- 1997] BEST BRIEF - PETITIONER 193 tionship under CERCLA unless the land is purchased after the disposal took place and the defendant did not know or had no reason to know of the disposal of hazardous substances on the property at the time of purchase. Costanza purchased the proper- ty after the date of the spill. Also, Costanza did not know and had no reason to know of the disposal of TCE on the property because it was not informed of the spill and because it made all appropriate inquiries into the past uses of the property. There- fore, Costanza is not in a contractual relationship with Kramer as defined under CERCLA and has met all four requirements of the innocent landowner defense. The third issue presented to the Court is whether Van deLay fails to establish a prima facie case for liability under RCRA. Van deLay satisfies the second element of a prima facie case by showing that TCE, a hazardous substance under RCRA, exists on the site. However, Van deLay fails to show that Costanza is a contributor as is required by the first element of RCRA liability. Costanza did not own the TCE or prescribe guidelines for Kramer to follow in disposing of the TCE and therefore cannot be a contributor under CERCLA. Van deLay also fails to demon- strate the third element necessary for RCRA liability because conditions on the site do not present an imminent and substan- tial endangerment to health or the environment. TCE is either confined to an unused and isolated well, or is present in such small quantities that the levels are the same as those at a clean site. Van deLay's failure to satisfy all three elements immunizes Costanza from RCRA liability. NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
ARGUMENT I. COSTANZA IS NOT LIABLE UNDER CERCLA BECAUSE VAN DELAY FAILS TO SATISFY THE FOURTH ELEMENT REQUIRED TO SUSTAIN CERCLA LIABILITY. THE FOURTH PRONG, REQUIRING COSTANZA TO BE A RESPONSIBLE PARTY, IS NOT MET BECAUSE COSTANZA DID NOT ACTIVELY DISPOSE OF A HAZARDOUS SUBSTANCE. Congress enacted CERCLA to address and remedy the dangers posed by inactive hazardous waste sites. Robert Bronston, The Case Against Intermediate Owner Liability Under CERCLA for Passive Migration of Hazardous Waste, 93 MICH. L. REV.. 609 (1994). To promote this objective, "CERCLA provides a cause of action to recover 'response costs' incurred in remedying an envi- ronmental hazard and allows those liable for response costs to seek contribution from other liable parties." United States v. CDMG Realty Co., 96 F.3d 706, 712 (3rd Cir. 1996) (citations omitted). Van deLay must meet the following four elements to impose CERCLA liability on Costanza: (1) that hazardous sub- stances were disposed of at the facility; (2) that there was a re- lease or threatened release of hazardous substances from the facility into the environment; (3) that the release or threatened release has required or will require the expenditure of response costs; and (4) that the defendant falls within one of four catego- ries of responsible parties subject to CERCLA liability. Id. (em- phasis added). Costanza concedes that the first three elements are met. How- ever, Van deLay fails to satisfy the fourth element because Costanza is not a responsible party. Van deLay contends that Costanza satisfies the fourth element as a responsible party who owned the facility at the time of disposal of the hazardous sub- stance under CERCLA § 9607(a)(2).' 42 U.S.C. § 9607(a)(2) (1988). Liability clearly rests both on the person or corporation who dumped the hazardous material and also usually on the current property owner. Bronston, supra, at 610. However, the liability of prior owners is .more problematic. Id. As stated above, the prior
1. CERCLA imposes liability on four classes of people including present and prior owners, generators and transporters. 42 U.S.C. § 9607(a) (1988). However, the only class of people at issue in this case are prior owners. 1997] BEST BRIEF - PETITIONER owner provision imposes liability on those who owned the land at the time of the disposal. Id. However, there is debate within the lower courts over whether the term disposal requires affirmative human conduct or if passive activity alone is sufficient. During his ownership, Costanza did not place any hazardous substances on the site. The property even laid vacant for the entire duration of his ownership. In fact, the only active disposal of TCE at the site was the spill caused by Kramer before Costanza owned the property. Therefore, in order to hold Costanza liable as a respon- sible party, and to satisfy the fourth element under CERCLA, this Court would have to interpret the term disposal to include the passive leaching or migration of TCE which Kramer previ- ously spilled.
A. A review of the consequences of defining disposal passively and an examination of the structure and policies of CERCLA makes it clear that Congress intended an active interpretationof disposal. Costanza is not liable under CERCLA because it is not an active disposer of TCE. CERCLA defines the term "disposal" to mean, the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any con- stituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3) (1988). Several circuit, district, and bankruptcy courts have applied an active definition of disposal. See CDMG Realty Co., 96 F.3d at 711; United States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346 (N.D. Ill. 1992); In re Diamond Reo Trucks, Inc., 115 B.R. 559 (Bankr. W.D. Mich. 1990). Under this line of cases, a prior owner who did not actively contribute to the contamination of the site should not face liability because the migration of the hazardous waste did not result from any of his/her affirmative actions. Bronston, supra, at 611. In contrast, other courts have employed a passive definition, which holds that even the passive migration of hazardous wastes may trigger CERCLA liability. See Nurad, Inc. v. William E. Hooper & Sons, Co., 966 F.2d 837 (4th Cir. 1992). The following three arguments make it clear that an active definition of disposal was intended by Congress. 196 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
1. The innocent landowner defense is destroyed if the definition of disposal is read to include the passive migration of hazardous substances. A consequence of interpreting the definition of disposal pas- *sively is the resulting destruction of the innocent landowner defense. If Congress had wanted to impose liability on every intervening owner in the chain of title, they would have explicit- ly written that into the statute, but they did not. Snediker Devel- opers v. Evans, 773 F. Supp. 984, 989 (E.D. Mich. 1991); Shane Clanton, Passive Disposal of the Innocent Landowner Defense, 9 J. ENERGY NAT. RESOURCES & ENVTL. L. 255, 263 (1993). In- stead, Congress enacted the innocent landowner defense in CERCLA § 9601(35)(A). 42 U.S.C. § 9601(35)(A) (1988). The innocent landowner defense is a modification to the CERCLA liability scheme. This defense exempts from liability those land- owners who did not produce any waste and who in good faith had no knowledge that a previous landowner had buried waste on the land. Id. Congress clearly intended the innocent landown- er defense "to exempt from liability purchasers who acquired the land after the relevant polluting activity had taken place." Bronston, supra, at 627. "Congress expressed [that] intention, however, by requiring that the exemption apply only to innocent purchasers who receive the land after 'disposal' of the hazardous waste." 42 U.S.C. § 9601(35)(A). A previous owner cannot qualify for the innocent landowner defense if disposal occurred while that person owned the property in question. Id. However, "[i]f disposal incorporates passive migration, virtually no one could qualify for this defense since passive migration could well occur or continue to occur during the innocent purchaser's ownership." Id. For example, in CDMG Realty, the court stated: [b]ecause CERCLA conditions the innocent landowner defense on the defendant's having purchased the property "after the disposal" of hazardous waste at the property, "disposal" cannot constitute the allegedly constant spreading of contaminants. Otherwise, the defense would almost never apply, as there would generally be no point "after disposal . .." We think it unlikely that Congress would create a basically useless defense. CDMG Realty Co., 96 F.3d at 716. See also H.R.W. Systems v. 1997] BEST BRIEF - PETITIONER 197
Washington Gas Light Co., 823 F. Supp. 318, 348 (D. Md. 1993); In re Diamond Trucks, Inc., 115 B.R. at 566. The negative consequence of interpreting disposal to include passive activities results in the destruction of Cost~nza's ability to utilize the innocent landowner defense. If disposal includes the passive migration of TCE deposited by the previous owner, Kramer, then Costanza as a prior owner cannot qualify for the innocent landowner defense. This illogical result ensues merely because passive migration could possibly have occurred during Costanza's innocent ownership of the property.
2. The statutory language of CERCLA supports an active reading of the term disposal. An examination of CERCLA's structure reveals that it requires a showing of affirmative human conduct before liability can at- tach to prior owners.' CDMG Realty, 96 F.3d at 714. The defini- tion of disposal includes the "discharge, deposit, injection, dump- ing, spilling, leaking, or placing of any hazardous waste into or on any land ... ." 42 U.S.C. § 6903(3). A few courts, in holding that passive migration can constitute disposal, have focused on the words "leaking" and "spilling" contained within the disposal definition. See, e.g., CPC Int'l, Inc. v. Aerojet-General Corp., 759 F. Supp. 1269, 1278 (W.D. Mich. 1991). These courts claim that "leak" and "spill" do not denote active conduct and therefore a passive definition of disposal was intended by Congress. Id. How- ever, in order to render these words consistent with the other words in the disposal definition one must apply the canon of noscitur a sociis. CDMG Realty, 96 F.3d at 714. The canon noscitur a sociis, relied upon in the past by this Court, maintains that one may infer the meaning of a word by examining the meanings of the surrounding words. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 306-307 (1961); Dole v. United Steelworkers, 494 U.S. 26, 36 (1990). For instance, in order to illustrate Congress' intent, the court in Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. Cal. 1989), used noscitur a sociis in interpreting disposal. In examin- ing all of the components of the disposal definition, the court in Ecodyne observed that all the verbs are transitive and appear to envision a human actor. Id. Thus, the "principle of noscitur a sociis indicates that by including leak and spill among this group 198 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 of words, Congress likely intended the active version of these verbs to apply. Concluding otherwise would make leak and spill anomalous in the context of the definition." Bronston, supra, at 616. Thus, if one focuses on the structure of CERCLA, it is obvious that an active definition of disposal was intended by Congress. Therefore prior owners, like Costanza, are not liable for the passive migration of hazardous wastes.
3. An active interpretation of disposal does not frustrate CERCLA's policy goal of encouragingprivate parties to cleanup environmental hazards. Reading disposal to require affirmative action does not frus- trate CERCLA's policy goal of encouraging private parties to voluntarily cleanup environmental hazards. The Eighteenth Circuit, in finding Costanza liable as a passive disposer, relied on the Nurad court's decision that an active definition of disposal would "frustrate the statutory policy of encouraging voluntary private action to remedy environmental hazards." Nurad, Inc. v. William E. Hooper, 966 F.2d 837, 845 (4th Cir. 1992). The court in Nurad theorized that an owner could avoid liability by doing nothing "while an environmental hazard fester[ed] on his property" and then could transfer the property before any re- sponse costs were incurred. Id. This argument postulated by the court in Nurad, and applied to Costanza by the Eighteenth Cir- cuit, makes the following three false assumptions. First, the argument presumes that without a passive definition of disposal, CERCLA does not adequately deter sellers from attempting to evade liability through fraudulent transfers of land. Id.; Bronston, supra, at 638. This assumption however, is patently incorrect. CERCLA finds such landowners liable under section 101(35). 42 U.S.C. § 9601(35)(C) (1988). Section 101(35) specifi- cally states: [I]f the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such defendant. 1997] BEST BRIEF - PETITIONER 199
Id. In other words, section 101(35) of CERCIA delineates that a landowner, with knowledge of the presence or threat of a hazard- ous substance, faces mandatory liability as a present owner even if the property is transferred. Furthermore, CERCLA also pro- vides for criminal penalties of fines and imprisonment for land- owners who refuse to report releases on their property. See 42 U.S.C. § 6903; United States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346, 1353 (N.D. Ill. 1992). These penalties remove a landowner's economic incentive to transfer ownership in such a situation. United States v. CDMG Realty Co., 96 F.3d 706, 718 (3rd Cir. 1996). Second, the argument assumes that the seller of contaminated property will be able to easily find a buyer for the property be- fore incurring cleanup costs. Bronston, supra, at 639. CERCLA, however, provides many incentives for potential buyers to inspect carefully any potential land purchase in order to guard against liability. See 42 U.S.C. § 9601(35)(B) (1988). For example, CERCLA imposes strict liability without fault on present land- owners regardless of the time of release. 42 U.S.C. § 9607(a)(1) (1988). "In addition, the innocent landowner defense encourages potential buyers to investigate the possibility of contamination before a purchase... [since] in order to claim the innocent owner defense, a defendant must have undertaken all appropriate in- quiry." CDMG Realty, 96 F.3d at 718. Therefore, it would not be as easy to sell off a contaminated piece of property to an unsus- pecting buyer as the court in Nurad and the Eighteenth Circuit asserts. Finally, the argument infers that "federal law must provide the solution to the problem of the deceptive seller." Bronston, supra, at 638. This assumption is clearly erroneous because state law already provides a solution. The court in Petersen Sand & Gravel emphasized that state common law "protects land pur- chasers from the [seller's] intentional failure to disclose hidden defects." Petersen Sand & Gravel, 806 F. Supp. at 1353. Most states provide "a rescission remedy for buyers who have been victimized by sellers who misrepresent or who fail to disclose dangerous latent defects in their real estate." Bronston, supra, at 639. Therefore, federal law is not needed to remedy the problem of the deceptive seller. 200 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
Based on the above three arguments, it is apparent that this Court should interpret disposal to require affirmative human conduct before imposing liability on prior owners. Under an ac- tive interpretation of disposal, the fourth element required for CERCLA liability is not met. Therefore, Costanza is not liable as a responsible party under CERCLA because Costanza is not an active disposer of a hazardous substance.
II. COSTANZA IS ENTITLED TO THE INNOCENT LANDOWNER DEFENSE While Costanza is not liable as an active disposer of a hazard- ous substance, liability could still attach under CERCLA § 9601(35)(C). 42 U.S.C. § 9601(35)(c) (1988). This section pro- vides that a previous owner who transfers property with knowl- edge of contamination of the property without disclosing that the property is contaminated is liable for damages under § 9607(a)(1). Id. Therefore, while Costanza did not actively con- tribute to the disposal of TCE on the property, it could still be liable under § 9601(35)(C) unless it can prove that it is entitled to the innocent landowner defense. CERCLA allows innocent landowners to escape liability as a present or past owner of property if a third person committed the act or omission that is the cause of the environmental hazard. 42 U.S.C. §§ 9601(35)(A) and (B); United States v. Pacific Hide & Fur Depot, Inc., 716 F. Supp. 1341, 1346 (D. Idaho 1989); Westwood Pharm. Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 90 (2d Cir. 1992). In order to invoke the protection of the innocent landowner defense the defendant must prove each of the following four requirements by a preponderance of the evi- dence: (1)[t]he release or threat of release of a hazardous substance and the resulting damages were caused solely by the act or omission of a third party; (2) [t]he third party's act or omission did not occur in connection with a contractual relationship (either direct or indirect) with the defendants; (3) [t]he defendants exercised due care with respect to the hazardous substance; and (4) [t]he defen- dants took precautions against the third party's foreseeable acts or omissions and the foreseeable consequences resulting there- from. 42 U.S.C. § 9607(b)(3) (1988); Pacific Hide, 716 F. Supp. at 1346. 1997] BEST BRIEF - PETITIONER
The release at issue in this case was caused solely by the faulty disposal techniques employed by Kramer, thereby satisfy- ing the first requirement that the release be caused by the act or omission of a third party. Costanza acted with due care with respect to the hazardous substance by requesting that the barrels containing TCE be removed by Kramer, a company experienced in the proper han- dling of TCE. Therefore, Costanza satisfies the third require- ment. Costanza also took every conceivable precaution against the foreseeable acts or omissions of the third party and the conse- quences that could foreseeably result from such acts or omis- sions. Kramer was experienced in the handling and disposal of TCE as a part of the every day operations of its business; there- fore, it was perfectly reasonable for Costanza to assume that Kramer would dispose of the TCE properly. Because of the rea- sonable assumption that Kramer would dispose of the TCE prop- erly, there were no foreseeable acts or omissions which would require precautions to be taken. Furthermore, Costanza attempt- ed to assure that the job had been performed correctly by com- missioning a professional site assessment. Therefore, Costanza took every conceivable precaution against foreseeable acts or omissions of a third party in satisfaction of the fourth require- ment. While Costanza satisfies the first, third and fourth require- ments for invoking the innocent landowner defense, he must still show that the land sale contract with Kramer does not qualify as a contractual agreement under CERCLA.
A. The land sales contract is not within CERCLA's definition of a contractual relationship because Costanza purchased the property after the disposal of TCE on the property and because Costanza did not know and had no reason to know of the disposal of TCE on the property. Section 9601(35)(A) of CERCLA includes land sale contracts within its definition of a contractual relationship. 42 U.S.C' § 9601(35)(A) (1988). However, CERCLA exempts from liability those defendants who acquired the contaminated property after the disposal of the hazardous substance occurred, if one of three circumstances is also present. The only circumstance relevant to NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
this case requires that "[a]t the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in or at the facility."2 Id. § 9601(35)(A)(i); Pacific Hide, 716 F. Supp. at 1347. There- fore, Costanza can assert the innocent landowner defense if it can prove that it purchased the property after the disposal of the TCE, that it did not know of the disposal of TCE on the property and that it had no reason to know of the disposal of TCE on the property.
1. Costanza bought the property after the disposal of the TCE occurred. Costanza must first prove that it purchased the property after the disposal occurred. The spill occurred on November 22, 1980, and Costanza did not purchase the property until December 1, 1980. Therefore, Costanza purchased the land after the disposal of the TCE occurred. 3
2. Costanza did not know of the disposal of TCE on the property. Costanza must also prove that at the time it acquired the facility it did not know that the TCE was disposed of at the site. 42 U.S.C. § 9601(35)(A); Pacific Hide, 716 F. Supp. at 1347. Costanza did not know of the disposal of TCE at the site. It was not informed of the spill by Kramer and evidence of the spill was not discovered until after Costanza sold the property. Because Costanza did not know TCE was disposed of on the property, the appropriate inquiry in this case is whether Costanza had reason to know of the disposal of the TCE on the property.
2. The other two circumstances require the defendant to be a government entity or to have acquired the facility by inheritance or bequest. 42 U.S.C. §§ 9601(35)(A). Neither of these circumstances apply to the present case. 3. As discussed in part one, Congress intended an active definition of disposal for liability under CERCLA. The only active disposal of TCE at the site was the spill caused by Kramer on November 22, 1980. 1997] BEST BRIEF - PETITIONER 203
3. Costanza conducted all appropriate inquiry into the past uses of the property and therefore had no reason to know of the disposal of TCE on the property. CERCLA section 9601(35)(B) lists the elements Costanza must demonstrate in order to prove that it had no reason to know of the disposal of TCE at the site. 42 U.S.C. § 9601(35)(B). The section requires that "the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good com- mercial or customary practice in an effort to minimize liability." Id. In order to establish that Costanza undertook all appropriate inquiry at the time of acquisition, it is necessary to examine the type of inquiry which would satisfy the standards of good com- mercial or customary practice with regards to the purchase of land in 1980. Id.; Pacific Hide, 716 F. Supp. at 1347; Hemingway Transp., Inc. v. Kahn, 174 B.R. 148, 169 (Bankr. D. Mass. 1994). Testimony in the Hemingway case indicated that in 1983 the customary practice among the real estate community in order to limit liability was for a party to "inspect the property by walking as much of it as possible." Hemingway Transp., Inc., 174 B.R. at 169. The Hemingway court also found that in 1983 it was "not yet common or customary" for a party to a real estate deal to attempt to limit their liability by commissioning a professional environmental site assessment. Id. Rather than simply walking the site and performing a visual inspection, as was the custom- ary procedure at the time, Costanza went beyond the normal procedures of the real estate profession and employed a geotechnical firm specializing in issues related to CERCLA and RCRA to perform a site assessment. Therefore, Costanza's inqui- ry exceeded the level of inquiry required by the customary prac- tice of the real estate profession in 1980. Van deLay argues that Costanza should have walked the site in addition to commissioning the site assessment. This argu- ment, however, requires the court to ignore CERCLA § 9601(35)(B) which outlines factors which should be used in determining whether Costanza should have inquired further than it did before purchasing the land. Section 9601(35)(B) re- quires the court to "take into account any specialized knowledge or experience on the part of the defendant ... commonly known or reasonably ascertainable information about the property, the 204 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 obviousness of the presence or likely presence of the contamina- tion at the property and the ability to detect such contamination by appropriate inspection." 42 U.S.C. § 9601(35)(B); Pacific Hide, 716 F. Supp. at 1347. An examination of Costanza's actions, with relation to these factors, shows that Costanza undertook all reasonable inquiry into the past use of the property and there- fore had no reason to know of the contamination. Costanza's lack of any specialized knowledge concerning the proper handling and disposal of TCE demonstrates that the inquiry undertaken was reasonable. Costanza's operations are limited to real estate development. Therefore, its sole expertise is in finding locations suitable for development. Costanza has no expertise in the disposal of hazardous substances, nor does it have any expertise in determining whether a property itself is contaminated. Therefore, Costanza satisfies the appropriate inquiry requirement, despite the fact that it did not walk the site, because a professional firm performing a site assessment had a much higher likelihood of detecting any contamination on the site. Costanza also acquired all commonly known or reasonably ascertainable information about the property. In Hemingway, the court assigned liability to the defendants because numerous newspaper articles had been written about the dumping of haz- ardous wastes in the area. Hemingway Transp., Inc., 174 B.R. at 170-71. Also, a simple telephone call to city hall would have revealed a number of city officials and agencies who had been investigating the area for hazardous waste dumping. Id. In con- trast, the Kramer site had never been the subject of a news media story chronicling dumping at the site, nor had it ever been investigated by any agencies as a disposal site for hazardous ma- terials. Therefore, neither a thorough search of media sources nor telephone calls to relevant agencies would have informed Costanza of the possibility of contamination at the site. The differences between the information available to Costanza and the information available to the defendant in the Hemingway case demonstrate that further inquiry on the part of Costanza would have been futile. The contamination at the Kramer site was not obvious to the naked eye nor would it have been detected if Costanza had walked the site. Courts have imposed liability on landowners when the contamination on the site is so readily apparent that 1997] BEST BRIEF - PETITIONER the landowner should have known of its existence. See id. at 169 (holding that the presence of numerous visible barrels leaking material on the property constituted an obvious contamination such that the defendant had reason to know of the contamina- tion). In contrast, the contamination at issue in this case was hidden and not obviously present at the site. Kramer disguised the spill under soil and did not inform anyone about it. Further- more, the spill was not detected by a professional assessment conducted one day after the spill occurred. Because TCE was not apparent, further inquiry by Costanza was not required. Costanza's lack of knowledge concerning TCE disposal, the commissioning of a professional site assessment, the lack of negative information concerning the site, and the lack of obvious contamination at the site all demonstrate that Costanza's inqui- ry went beyond the customary practices of the real estate profes- sion in 1980. Therefore, Costanza undertook all appropriate inquiry into the property in an effort to minimize liability, and had no reason to know of the disposal of TCE on the property. Because Costanza purchased the property after the disposal of TCE on the property, and because it did not know and had no reason to know of the disposal of TCE on the property, the land sale contract with Kramer is not considered a contractual rela- tionship under CERCLA. Therefore, Costanza satisfies the sec- ond element of the innocent landowner defense which requires that the defendant is not in a contractual relationship with the third party. Costanza has, therefore, satisfied all four require- ments of the innocent landowner defense, and cannot be subject- ed to liability under CERCLA.
III. COSTANZA CANNOT INCUR LIABILITY UNDER RCRA BECAUSE COSTANZA NEVER CONTRIBUTED TO THE HANDLING OR DISPOSAL OF THE TCE, AND BECAUSE THERE IS NO IMMINENT AND SUBSTANTIAL HARM AS- SOCIATED WITH THE LEVELS OF TCE AT THE SITE. RCRA allows a private citizen to commence a civil action on his or her own behalf. In order to establish a prima facie case under RCRA, courts require a plaintiff to demonstrate each of the following three elements: "(1) conditions that may present an imminent and substantial endangerment to health or the envi- ronment; (2) that the endangerment stems from a solid or haz- 206 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ardous waste as defined by RCRA; and (3) that the defendants have contributed to or are contributing to such ... disposal." Foster v. United States, 922 F. Supp. 642, 660 (D.C. 1996). Van deLay fails to demonstrate a prima facie case under RCRA because it doesn't satisfy all three of the elements re- quired by the statute. Van deLay satisfies the second element because TCE, a solid or hazardous waste under RCRA, is present on the site. However, the third element required for RCRA liabil- ity is not met because Costanza did not contribute to the han- dling, storage, treatment, transportation or disposal of TCE. The first element required for RCRA liability is also not met because the levels and locations of the TCE at the site present no immi- nent and substantial endangerment to human health or the envi- ronment.
A. The third element required for RCRA liability is not met because Costanza never contributed to the handling, storage, treatment, transportationor disposal of the TCE. The Eighth Circuit addressed the issue of whether a person contributed to the disposal of hazardous materials in United States v. Aceto Agric. Chem., 872 F.2d 1373 (8th Cir. 1989). The court in Aceto was faced with determining whether a group of pesticide manufacturers was liable for contamination found at the site of a pesticide formulation facility. Id. at 1375. These Aidex manufacturers retained ownership of the pesticides they sent to the formulation facility and also sent specifications for the formulation facility to follow in handling the pesticides. Id. The Aceto court held that RCRA requires a defendant to do more than just passively arrange for the disposal and handling of haz- ardous waste; the person must contribute to the disposal and handling of such waste. Id. at 1383. The court then concluded that since the defendants retained ownership of the chemicals and since they gave instructions for the handling of the chemi- cals they were precluded from being considered mere arrangers; rather the court found that the defendants had contributed to the handling and disposal of the materials. Id. Costanza's relationship with Kramer distinguishes this case from the Aceto case. Unlike the Aceto defendants, Costanza never had any ownership interest in any of the chemicals used by the Kramer corporation in its manufacturing processes, nor was 1997] BEST BRIEF - PETITIONER 207
Kramer acting in accordance with any specifications provided by Costanza when it disposed of the chemicals. Costanza and Kramer agreed that Kramer would dispose of the barrels before the closing of the land sale. This agreement, without any owner- ship interest or involvement in the disposal process on the part of Costanza, demonstrates that Costanza is merely an arranger of the disposal of hazardous materials rather than a contributor. Therefore, Costanza does not meet the RCRA requirement that one must contribute to the handling or disposal of TCE before liability can attach.
B. The first element required for RCRA liability is not met because conditions at the site do not present an imminent and substantialdanger to humans or the environment. Even if the court finds that Costanza was a contributor to the handling or disposal of the TCE, liability cannot attach in this case because the site does not present an imminent and substan- tial danger to humans or the environment. Courts have em- ployed a four prong test to determine whether an imminent and substantial endangerment exists at a site. The site must (1) put a population at risk; (2) contain contaminants which are listed as hazardous under the RCRA, (3) have a level of contaminants above the levels that are considered acceptable by the state, and (4) there must be a pathway of exposure. Price v. United States Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992). There is no imminent danger present at this site. TCE is listed as hazardous by RCRA and there is a high concentration of TCE in the west well. However, the high concentration is confined to this isolated and unused well. Knowledge of the contamination will prevent the well from ever being put into use, thereby effec- tively eliminating any pathway of exposure which would put a population at risk. Tests conducted at the site showed that the soil surrounding the east well also contains TCE. However, the quantities of TCE in the soil are of such minuscule quantities that the risk is virtu- ally the same as that associated with a clean site. Courts require that the risk of potential harm be great in order to find that a population is in imminent and substantial danger. Aceto, 872 F.2d at 1383. Clearly a risk of harm which is virtually the same as that associated with a clean site does not constitute a great 208 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 harm. Therefore, no population is in imminent danger due to the levels of TCE in the soil surrounding the well. Similarly, there is no population at risk from the presence of TCE at the level of the aquifer which supplies the water for Van deLay's well on the east side of its property. While this aquifer could present a pathway of exposure to the well used by Van deLay, the level of contamination at the aquifer level is also virtually the same as that associated with a clean site. There- fore, even if TCE is carried from the west side of the property, through the aquifer and into the well, the risk of harm from this occurrence is so small that it precludes a finding of a substantial or imminent risk. RCRA liability cannot attach to Costanza because Costanza merely arranged for the handling and disposal of TCE and be- cause the site does not present an imminent and substantial danger to humans or the environment.
CONCLUSION For the foregoing reasons, the petitioner Costanza respectfully requests that this Court reverse the decision of the Eighteenth Circuit Court of Appeals, and reinstate the decision of the Dis- trict Court for the Western District of Manzeria, granting peti- tioner Costanza's motion to dismiss with regard to respondent's counts I and II. DOCKET NO. 96-112
IN THE SUPREME COURT OF THE UNITED STATES FEBRUARY TERM 1997 Costanza Development, Inc., Petitioner/Defendant,
-against-
Van deLay Industries, Inc., Respondent/Plaintiff.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTEENTH CIRCUIT
Brief for Respondent Van deLay Industries, Inc. Kimberly D. Maney Thomas E. Carter Counsel for Respondent University of Wisconsin School of Law Oral Argument Requested
209 210 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
QUESTIONS PRESENTED I. Whether Congress intended the Comprehensive Environmen- tal Response, Compensation and Liability Act ("CERCLA") to in- clude, within its broad compass of remedial liability, past property owners who make no efforts to detect or prevent the seepage of hazardous waste on their property during their ten- ure?
,II. Whether Petitioner fails to satisfy the "appropriate inquiry" element of CERCLA's "innocent landowner" defense when it was fully aware of barrels of toxic chemicals on the site and their removal, but failed to verify that these chemicals were handled properly, either by performing an adequate site assessment or by simply inquiring of the previous owner?
III. Whether Petitioner fails to demonstrate the absence of an "imminent and substantial endangerment" to health or environ- ment under the Resource Conservation and Recovery Act ("RCRA") when a source of drinking water on the contaminated site contains high levels of a carcinogen and the Respondent's procurement of an alternate water source is a necessary response to this threat under the National Contingency Plan? 1997] BEST BRIEF - RESPONDENTS
TABLE OF CONTENTS
QUESTIONS PRESENTED ...... 210 TABLE OF AUTHORITIES ...... 215 STATEMENT OF THE CASE ...... 219 SUMMARY OF THE ARGUMENT ...... 221 ARGUMENT ...... 223
I. DISPOSAL ENCOMPASSES THE UNCHECKED SEEPAGE OF HAZARDOUS WASTE BECAUSE IT IS THE SOLE READING WHICH VINDICATES CERCLA'S PLAIN MEAN- ING, LIABILITY STRUCTURE, AND UNDISPUTED CON- GRESSIONAL INTENT ...... 223
A. The statutory definition of "disposal"alone provides sub- stantial support for the inclusion of hazardous waste seepage in its m eaning ...... 224
B. Disposal must encompass the unchecked seepage of hazard- ous waste because it is the sole construction which vindicates the undisputed Congressional intent of CERCLA: imposing strict liability to enlist the aid of the private secotr and to re- quire the participationof responsible parties in the clean-up of the Nation's widespread contaminationproblem ...... 226
1. The passive construction alone advances Congress'intent to energize the private sector to investigate and remediate hazardous sites ...... 226
2. Because a past owner's knowledge does not independently trigger CERCLA liability, restricting disposal to its active meaning creates perverse incentives for owners to conceal contamination both during their tenure and from subsequent buyers...... 227
3. The proper construction promotes the Congressional in- tent that parties responsible for contaminationparticipate in clean-up efforts ...... 228 212 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
C. Never has causation been a prerequisite to initialCERCLA liability; yet, a reading of disposal restricted to active conduct would importjust such a requirement ...... 229
D. Recognizing that disposal includes unchecked seepage poses no threat to the ability of current owners to assert the "innocent landowner" defense ...... 230
E. "Disposal"must encompass the unchecked seepage of haz- ardous waste because it is the sole construction which avoids the inequity of establishig an arbitrarydouble-standard which treats similarly situated past and current owners differently under CERCLA ...... 231
1. By its terms, the "innocent landowner" defense equally protects from strict liability both past and current owners who are truly innocent ...... 231
2. Recognizing the passive component of disposal preserves equity; it ensures that past owners and current owners, simi- larly situated in all respects but the timing of response costs, share equal footing under law ...... 232
II. PETITIONER FAILED TO PROVE AN INNOCENT LAND- OWNER DEFENSE BECAUSE THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PETI- TIONER HAD REASON TO KNOW OF THE CONTAMI- NATION AND WHETHER IT MADE ALL APPROPRIATE INQUIRY CONSISTENT WITH GOOD COMMERCIAL PRACTICE ...... 233
A. CERCLA imposes strict requirements on Petitioner when it attempts to avoid liability by using the innocent landowner de- fense ...... 233
B. Petitionerfailed to meet the high burden of proof demanded on summary judgment to establish the standard of all appro- priate inquiry at the time of purchase; thus, Petitionerfailed to prove it met that standard ...... 235 1997] BEST BRIEF - RESPONDENTS 213
C. Plain application of the staturily mandated appropriate inquiry facts, together with the required inferences under sum- mary judgment, preclude the Court from finding that Petitioner made appropriateinquiry ...... 236
1. Petitioner's specialized knowledge and experience as a commercial real estate developer prevents it from demon- strating that it made appropriateinquiry ...... 236
2. Because Petitionerfailed to establish that the price of the property did not reflect a discount for contamination, it can- not demonstrate that it made all appropriateinquiry . 237
3. Petitioner'sfailure to pursue sources of reasonably ascer- tainable information and lack of response to obvious signs of the likely presence of contamination at the site prevent Peti- tioner from demonstratingthat it made appropriateinquiry ...... 237
4. Petitioner'sfailure to use its ability to detect contamina- tion by appropriate inspection prevents it from demonstrat- ing that it made appropriateinquiry ...... 239
III. PETITIONER IS NOT ENTITLED TO SUMMARY JUDGMENT ON THE RCRA CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND BECAUSE RESPONDENTS AVOIDANCE OF THE THREAT DOES NOT ABATE ITS IMMINENCE AS A MATTER OF LAW ...... 240
A. A genuine issue of fact as to whether the contamination may pose an imminent and substantial endangerment pre- cludes Petitionerfrom prevailing on summary judgment 241
B. As a matter of law, Responsdent's mere knowledge of the contamination and procurement of an alternate clean water source does not abate the "imminent"nature of the threatposed by the existing contaminationon the site ...... 243
1. Abatement requires clean-up or containment; because nei- ther have occurred here, the threat is still "imminent" . 243 214 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
2. Consideringavoidance of hazardous contamination as an abatement of an "imminent" threat defeats RCRA's legisla- tive intent ...... 244
CONCLUSION ...... 245
APPENDIX ...... 246 1997] BEST BRIEF - RESPONDENTS 215
TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...... 237 Griffin v. Oceanic Contractors,Inc., 458 U.S. 564 (1982) ...... 231 McNary v. HaitianRefugee Ctr., 498 U.S. 479 (1991) ...... 223 Meghrig v. KFC Western, Inc., 116 S.Ct. 1251 (1996) ...... 243, 244 United Sav. Ass'n of Texas v. Timbers of Inwood ForestAssocs., 484 U.S. 365 (1988) ...... 225 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) ...... 225, 230
FEDERAL APPELLATE COURT CASES
City Management Corp. v. United States Chemical Co., 43 F.3d 234 (6th cir. 1994) ...... 235 In re Japanese Elec. Prod. Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds sub nom ...... 235, 240 Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir.), cert. denied sub nom ...... 224, 226, 233 Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994) ...... 241, 243, 244, 240 Solid State Circuits, Inc. v. EPA, 812 F.2d 383 (8th Cir. 1987) ...... 223, 235 State of New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985) ...... 223 United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373 (8th Cir. 1989) ...... 244 United States v. CDMG Realty Co., 96 F.3d 706 (3d Cir. 1996) ...... 225, 226, 230, 231, 232 United States v. Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984) ...... 224, 225 Westwood Pharmaceuticals,Inc. v. Nat'l Fuel Gas Distrib. Corp, 964 F.2d 85 (2d Cir. 1992) ...... 232 216 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
FEDERAL DISTRICT COURT CASES
Acme PrintingInk Co. v. Menard, Inc., 870 F. Supp. 1465 (E.D. Wis. 1994) ...... 240 BCWAssocs., Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL 102641 (E.D. Pa. Sept. 29, 1988) . 239 Chem. Waste Mgmt., Inc. v. Armstrong World Indus., Inc., 669 F. Supp. 1285 (E.D. Pa. 1987) ...... 228 Chesapeake & Potomac Tel. Co. of Virginia v. Peck Iron & Metal Co., 814 F. Supp. 1269 (E.D. Va. 1992) ...... 238 City of New York v. Exxon Corp., 633 F. Supp. 609 (S.D.N.Y. 1986) ...... 223 Davies v. Nat'l Coop. Refinery Ass'n, No. 96-1124-WEB, 1996 WL 529208 (D. Kan. July 12, 1996) ...... 244 Ecodyne Corp. v. Shah, 718 F. Supp. 1454 (N.D. Cal. 1989) ...... 225 Foster v. United States, 922 F. Supp. 642 (D.D.C. 1996) ...... 236, 237 Gache v. Town of Harrison, 813 F. Supp. 1037 (S.D.N.Y. 1993) ...... 241 In re Hemingway Transp., Inc., 174 B.R. 148 (Bankr. D. Mass. 1994) ...... 234 Interstate Power Co. v. Kansas City Power & Light Co., 909 F. Supp. 1224 (N.D. Iowa 1991) ...... 227, 228 Int'l Clinical Labs., Inc. v. Stevens, No. CV 87-3472, 1990 WL 43971 (E.D.N.Y. Jan. 11, 1990) 234 Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659 (E.D. Cal. 1990) ...... 225 United States v. Petersen Sand and Gravel, Inc., 806 F. Supp. 1346 (N.D. Ill. 1992) ...... 226, 227, 230 United States v. Waste Indus., Inc., 556 F. Supp. 1301 (E.D.N.C. 1982), rev'd, 734 F.2d 159 (4th Cir. 1984) ...... 224, 229 United States v. Conservation Chem. Co., 619 F. Supp. 162 (W.D. Mo. 1985) ...... 241, 240, 242, 243 United States v. A & N Cleaners and Launderers,Inc., 854 F. Supp. 229 (S.D.N.Y. 1994) ...... 238 United States v. Pac. Hide and Fur Depot, Inc., 716 F. Supp. 1341 (D. Idaho 1989) ...... 233, 234 1997] BEST BRIEF - RESPONDENTS
United States v. Serafini, 706 F. Supp. 346 (M.D. Pa. 1988) ...... 235,236 United States v. Price, 523 F. Supp. 1055 (D.N.J. 1981), aff'd, 688 F.2d 204 (3d Cir. 1982) ...... 225, 229 Wickland Oil Terminals v. Asarco, Inc., No. C-83-5906-SC, 1988 WL 167247 (N.D. Cal. Feb. 23, 1988) ...... 239
FEDERAL STATUTES AND RULES
42 U.S.C. § 6902(b) ...... 244, 245 42 U.S.C. § 6903(3) ...... 224, 229, 231 42 U.S.C. § 6972(a)(1)(B) ...... 229,241, 242, 244 42 U.S.C. § 6973 ...... • 229 42 U.S.C. § 9601(29) ...... 224, 229 42 U.S.C. § 9601(35) ...... 229,231, 233 42 U.S.C. § 9601(35)(A) ...... 228,230, 233 42 U.S.C. § 9601(35)(B) ...... passim 42 U.S.C. § 9601(35)(C) ...... 227, 232 42 U.S.C. § 9605(a)(2) ...... 242 42 U.S.C. § 9607(a) ...... 223,229 42 U.S.C. § 9607(a)(1) ...... 228,229 42 U.S.C. § 9607(a)(2) ...... 223, 229 42 U.S.C. § 9607(a)(3) ...... 228 42 U.S.C. § 9607(a)(4) ...... 228 42 U.S.C. § 9607(b) ...... 228, 229,233 42 U.S.C. § 9607(b)(3) ...... 229, 231,233 FED. R. CIV. P. 56(c) ...... 235, 250,241
LEGISLATIVE MATERIALS
H.R. REP. No. 1016, 96th Cong., 2d Sess., pt.1, (1980), reprinted in 1980 U.S.C.C.A.N. 6119 ...... 223, 224, 234
130 CONG. REC. 20815 (July 25, 1984) (floor speech of Senator M itchell) ...... 245 218 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
MISCELLANEOUS MATERIALS
William B. Johnson, Annotation, Third-PartyDefense To Liabili- ty Under § 107 of Comprehensive Environmental Response, Com- pensation, and Liability Act (42 USCS § 9607), 105 A.L.R. FED. 21 (1991) ...... 234 1997] BEST BRIEF - RESPONDENTS 219
STATEMENT OF THE CASE Petitioner Costanza Development, Inc. is a developer of real estate in Seinfeld, Manzeria. (R. at 4). Costanza, wanting to build a fantasy baseball and health spa complex, approached Kramer Enterprises, Inc., which was going out of business, and negotiated the acquisition of its sixty acre factory site in 1980. (R. at 4). Kramer, a manufacturer of various latex products, used many chemicals in its production processes. (R. at 3). Among these chemicals was trichloroethylene ("TCE"), a cancer causing agent. (R. at 3). Kramer stored the chemicals in barrels outside of the factory. (R. at 3). Costanza was aware of the chemicals and requested that Kramer remove the barrels. (R. at 4). Negotiations concluded on November 15, 1980, at which time Kramer agreed to remove the chemicals. (R. at 4). During the removal process the wheels on one side of the truck became stuck, dislodging the barrels inside. (R. at 4). Eighteen barrels of TCE toppled from the truck, spill- ing their contents onto the surrounding sandy soil. (R. at 4). Kramer removed the empty barrels but left the TCE to seep into the earth. (R. at 4). Kramer placed a thin layer of topsoil over the area, which had previously been undisturbed. (R. at 4). The day after the chemical spill, Costanza hired Drake Engi- neering, a fledgling geotechnical firm which had just begun con- sulting in RCRA and CERCLA issues, to provide an assessment of the site. (R. at 4). Despite the newness of the spill and the topsoil disturbance, Drake's report made no mention of the dis- turbed soil or the spill. (R. at 4). In its site assessment Drake Engineering took no soil or water samples. (R. at 4). Also, its report made no mention of Kramer's manufacturing activities or storage of chemicals on the site. (R. at 4). Costanza closed the deal on the Kramer property on December 1, 1980, a week after the chemical spill. (R. at 4). After purchase, Costanza did not develop the site, but kept it as an investment property. (R. at 4). He sold it in 1995 to Re- spondent Van deLay Industries, Inc., a catalog distribution com- pany known for its promotion of "green" industry, exclusive use of recycled paper and desire to place its offices in pastoral set- tings. (R. at 2). The Costanza site appealed to Van deLay, as the eastern forty acres were pristine and covered with old growth forests. (R. at 2). Van deLay purchased the property unaware of any potential contamination. (R. at 3). Van deLay tapped an 220 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 aquifer eighty feet under the eastern portion of the site to supply its new office center with water. (R. at 2). Subsequently, Van deLay decided to expand its operations by refurbishing the old Kramer factory on the western twenty acres. (R. at 2). Van deLay wanted to use the well located on the site to provide water for its expanded operations. (R. at 2). As a precau- tion, Van deLay had the water well at the old factory tested for purity by the Manzeria Department of Health and Environment ("MDHE"). (R. at 2). During testing the MDHE discovered high concentrations of TCE in the well. (R. at 2). After finding the contamination, MDHE then performed a more extensive environ- mental audit of the area, including both soil and water. (R. at 2). While the additional cancer risk in the soil itself was relatively low, TCE contamination was permeating the soil down to the level of the aquifer, eighty feet below. (R. at 3). This is the same aquifer that supplies water to Van deLay's east side operations. (R. at 3). As a precaution, Van deLay stopped using the east side well, although further testing showed no current presence of contami- nation. (R. at 3). Concerned with safety, Van deLay paid for construction of a water storage facility and clean water delivery to the site. (R. at 3). All parties have stipulated that Van deLay's costs are part of a necessary response consistent with the Na- tional Contingency Plan for contaminated sites. (R. at 3). Van deLay, concerned with providing a safe and healthy work envi- ronment for its employees, has filed this action in an attempt to remove the contamination. (R. at 3). Costanza filed a motion to dismiss all counts of the complaint for lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1). (R. at 1). The United States District Court for the Western District of Manzeria, treating this as a motion for summary judgment, ruled that Costanza was not liable under CERCLA, 42 U.S.C. § 9607(a)(2), as a passive disposer of hazard- ous waste and that it was not liable under RCRA's citizen suit provision, 42 U.S.C. § 6972(a)(1)(B), because the hazardous waste did not pose an imminent endangerment. (R. at 6, 9). On appeal, the United States Court of Appeals for the Eigh- teenth Circuit reversed on all counts, entering judgment in favor of Van deLay. (R. at 10). 1997] BEST BRIEF - RESPONDENTS
SUMMARY OF THE ARGUMENT
I. PETITIONER IS LIABLE UNDER CERCLA AS A PASSIVE PAST DISPOSER. As the owner of contaminated property when pollution was spreading through its soil and groundwater, Petitioner falls squarely within the broad sweep of strict liability that Congress intended under CERCLA. While the statutory words are not a model of clarity, CERCLA's overall liability structure and the intent of Congress speak dispositively in favor of passive past disposer liability. Indeed, to insulate Petitioner and the many parties like it from all responsibility for their contaminated for- mer property would defeat the very aims of CERCLA. Not only would it create perverse disincentives for current owners to in- vestigate, disclose and remediate hazardous waste sites, it would guarantee palpable inequity between similarly situated current and past owners. This Court must recognize that Congress did not intend such absurd results.
II. PETITIONER IS NOT AN "INNOCENT"PURCHASER OF CONTAMINATED LAND UNDER CERCLA. Respondent certainly does not contend that CERCLA's "inno- cent landowner" defense is unavailable to all passive past dispos- ers. Rather, in this specific case, Petitioner has simply failed to establish it. Petitioner has not proven a vital element of the de- fense: that it made "all appropriate inquiry" which was "consis- tent with good commercial or customary practice." Both the case law and straightforward application of statutory factors, which the Court must use to examine "appropriate inquiry," illustrate Petitioner's failure to exercise due diligence. CERCLA simply does not excuse commercial purchasers such as Petitioner from willful ignorance of environmental hazards on land they acquire. 222 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
III. PETITIONER HAS NOT DISPROVEN THE EXISTENCE OF AN "IMMINENT AND SUBSTANTIAL ENDANGERMENT" UNDER RCRA. Petitioner's inability to establish the absence of an "imminent and substantial endangerment to health or the environment" precludes the entry of summary judgment in its favor. Endanger- ment to the environment is self-evident: the contamination is present at "high levels" and is moving unfettered through the environment. Endangerment to health is "imminent" because a human population is at risk (Respondent's employees) through a pathway of exposure (the contaminated well and aquifer). That this risk is "substantial" is evident from the MDHE's finding of high levels of contamination in the well and because Respondent's purchase of clean water from elsewhere is a neces- sary response under CERCLA's National Contingency Plan. Respondent's understandable refusal to expose its workers to the contamination hazard does nothing to remove the endangerment. For this Court to hold otherwise would require citizens to harm themselves as a precondition to bringing a RCRA citizen suit to abate the very harm that threatens them. Congress could not have intended that RCRA's citizen suit be so twisted, beyond both recognition and practical use. 1997] BEST BRIEF - RESPONDENTS 223
ARGUMENT I. "DISPOSAL"ENCOMPASSES THE UNCHECKED SEEPAGE OF HAZARDOUS WASTE BECAUSE IT IS THE SOLE READING WHICH VINDICATES CERCLA'S PLAIN MEANING, LIABILITY STRUCTURE AND UNDISPUTED CONGRESSIONAL INTENT. The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), the Nation's primary vehicle for reclaiming land poisoned by hazardous waste, imposes strict liability for owning or operating a contaminated site "at the time of disposal." 42 U.S.C. § 9607(a)(2) (1994); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985) (CERCLA imposes strict liability). The Court must decide if Congress in- tended this remedial statute's definition of "disposal" to exclude the unchecked movement of hazardous wastes through soil or groundwater, thereby excusing from all liability past property owners who took no steps to detect or prevent the further spread of contamination on their land. The Court reviews such a ques- tion of law de novo. McNary v. Haitian Refugee Ctr., 498 U.S. 479, 480 (1991). While the circuits are divided on the issue, care- ful scrutiny of the text, structure and Congressional intent of CERCLA warrants but one conclusion: "disposal" does include unchecked migration of hazardous waste through the environ- ment. Galvanized by'the Nation's growing hazardous waste crisis, Congress enacted CERCLA in 1980 to "[e]stablish a program for appropriate environmental response action to protect public health and the environment. .. ." H.R. REP. No. 1016, 96th Cong., 2d Sess., pt.1, at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119. To achieve its monumental objective, Con- gress sought the aid of private parties in voluntarily investigat- ing and remediating hazardous sites. See, e.g., Solid State Cir- cuits, Inc. v. EPA, 812 F.2d 383, 388 (8th Cir. 1987) ("Since superfund money is limited, Congress clearly intended private parties to assume clean-up responsibility."). The statute thus provides any private party with a federal cause of action against a responsible party to recover the costs of responding to a haz- ardous site. See 42 U.S.C. § 9607(a); City of New York v.Exxon Corp., 633 F. Supp. 609, 616-17 (S.D.N.Y. 1986) ("[CERCLA's private recovery provisions] assure an incentive for private par- ties ... to take a leading role in cleaning up hazardous waste 224 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 facilities as rapidly and completely as possible."). Moreover, Con- gress imposed strict liability on responsible parties to ensure that CERCLA created incentives powerful enough to succeed. H.R. REP. No. 1016, 96th Cong., 2d Sess., pt.1, at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120. The sole issue raised here is a narrow one: Whether Congress intended to undermine CERCLA's success by depriving it of the power to reach the only responsible parties in a position to inves- tigate and remediate hazardous waste on their land during their tenure. Respondent respectfully submits that Congress intended no such result.
A. The statutory definition of "disposal" alone provides substantial support for the inclusion of hazardous waste seepage in its meaning. CERCLA defines "disposal" by adopting the definition in the Resource Conservation and Recovery Act ("RCRA"). See 42 U.S.C. §§ 6903(3), 9601(29). RCRA, in turn, defines "disposal" as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on -any land or water so that such solid waste or any constituent thereof may enter the environment. .. ." 42 U.S.C. § 6903(3) (emphasis supplied). The plain meaning of these terms substantially sup- ports both the passive migration and the active placement of hazardous waste at a site. As a leading authority explained, "[slome of the words in this definition appear to be primarily of an active voice .... Others of the words, however, readily admit to a passive component: haz- ardous waste may leak or spill without any active human partic- ipation." Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 845 (4th Cir. 1992), cert. denied sub nom. Mumaw v. Nurad, Inc., 506 U.S. 940 (1992) (citation omitted). The diversity of terms shows that "Congress intended ... disposal 'to have a range of meanings,' including not only active conduct, but al- so... its subsequent movement through the environment." Id. (quoting United States v. Waste Indus. Inc., 734 F.2d 159, 164 (4th Cir. 1984)). Courts construing disposal in RCRA provisions analogous to CERCLA hold that it embraces passive movement as well as active conduct. United States v. Waste Indus. Inc., 734 F.2d 159, 1997] BEST BRIEF - RESPONDENTS 225
164 (4th Cir. 1984); United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), affd, 688 F.2d 204 (3d Cir. 1982). Because CERCLA adopts RCRA's definition and has a broader remedial focus, "disposal" must be at least as broad in the CERCLA con- text. See Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659, 663 (E.D. Cal. 1990) (CERCLA's provisions must be con- strued broadly absent express contrary Congressional intent). Indeed, to restrict "spilling" and "leaking" to their active com- ponents creates redundancy with such terms as "discharge" and "dumping," violating the canon of statutory construction that all statutory words must be given effect. See e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). While other courts have invoked the canons noscitur a sociis, Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. Cal. 1989) (deriving mean- ing from surrounding words), and ejusdem generis, United States v. Waste Indus., Inc., 556 F. Supp. 1301, 1305-06 (E.D.N.C. 1982), rev'd, 734 F.2d 159 (4th Cir. 1984) (general terms follow- ing specific terms construed specifically), to support an active construction, the most that can be said of these approaches is that they raise the specter of ambiguity. Even opponents of the passive aspect of disposal concede this by examining the broader framework of CERCLA in reaching their conclusions. See, e.g., United States v. CDMG Realty Co., 96 F.3d 706, 714-18 (3d Cir. 1996). While CERCLA is not a model of clarity, the literal wording of the definition lends substantial support for a passive construc- tion. When statiitory ambiguity exists, however, it is necessary to examine the statute as a whole. See United Say. Ass'n of Tex- as v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). A hard look at CERCLA's structure, language, and intent confirms beyond doubt that disposal does include waste migra- tion. 226 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
B. "Disposal" must encompass the unchecked seepage of hazardous waste because it is the sole construction which vindicates the undisputed Congressional intent of CERCLA imposing strict liability to enlist the aid of the private sector and to require the participationof responsibleparties in the clean-up of the Nation's widespread contaminationproblem. 1. The passive construction alone advances Congress' intent to energize the private sector to investigate and remediate hazardous sites. There is no dispute that passive disposer liability would pro- mote a vital aspect of Congressional intent under CERCLA. Courts on both sides of the passive disposal issue agree that Congress intended to create incentives for voluntary remediation efforts by members of the private sector. See e.g., Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 845 (4th Cir. 1992), cert. denied sub nom. Mumaw v. Nurad, Inc., 506 U.S. 940 (1992) (citation omitted); United States v. Petersen Sand and Gravel, Inc., 806 F. Supp. 1346, 1352-53 (N.D. Ill. 1992) (reject- ing passive disposal). It is plain that passive past disposer liabili- ty will produce these incentives. However, failure to recognize passive disposer liability flips the prevailing incentive structure on its head, stifling both inves- tigation and remediation. Restricting disposal to its active mean- ing guarantees that many property owners will simply choose to remain ignorant of contamination or, more perversely, to actively conceal the known fact of contamination from subsequent buyers and the EPA. As the Fourth Circuit summarized, "[ulnder the [active disposal] view, an owner could avoid liability simply by standing idle while an environmental hazard festers on his prop- erty." Nurad, 966 F.2d at 845. Likewise failing muster is the suggestion that restricting dis- posal to an active meaning will not create a perverse set of disincentives. Proponents of this view make a critical error. Their error is the assumption that owners with knowledge of contamination are prevented from concealing it by a threat of CERCLA liability. See Petersen, 806 F. Supp. at 1353; United States v. CDMG Realty Co., 96 F.3d 706, 718. However, this supposed deterrent cannot withstand scrutiny. 1997] BEST BRIEF - RESPONDENTS
2. Because a past owner's knowledge of contamination does not independently trigger CERCLA liability, restrictingdisposal to its active meaning creates perverse incentives for owners to conceal contamination both during their tenure and from subsequent buyers. The assumption that past owner knowledge of contamination independently triggers liability under CERCLA is typically made after cursory analysis. See Petersen, 806 F. Supp. at 1352 (a one- sentence discussion). However, close scrutiny of the language and placement of the paragraph discloses that it is neither an ef- fective deterrent nor a "font of independent liability." Interstate Power Co. v. Kansas City Power & Light Co., 909 F. Supp. 1224, 1235 (N.D. Iowa 1991) (42 U.S.C. § 9601(35)(C) is no basis for liability). A plain reading of section 9601(35)(C) reveals that it*relates only to those who try to use the "innocent landowner" defense; that is, those who are already potentially liable under section 9607(a). The use of "defendant" and "who would otherwise be liable" confirms this reading. Thus, defendants cannot use the defense if they obtained actual knowledge during tenure but failed to disclose upon transfer. However, if passive disposal does not give rise to section 9607(a)(2) liability, then passive past owners have no need of the defense, because they are not liable in the first instance. Knowledgeable owners would then be free to "dump" blighted property on unsuspecting buyers, escaping liability instead of reporting to the EPA and allowing remediation to begin. The very placement of the section supports this as the proper reading. Its appearance in the definition section which creates the "innocent landowner" defense confirms that it applies only in conjunction with that defense. Moreover, CERCLA's substantive liability provisions appear exclusively in section 9607(a). It would be curious for Congress to make such a significant alter- ation in the substance of the law, yet, rather than to logically place this new source of liability with those already enumerated, to submerge it within the definitions. Finally, regarding section 9601(35)(C) as a basis for liability contradicts CERCLA's overall liability scheme. The plaintiff would have to prove a defendant owner's knowledge, whereas it is uniformlythe defendant who bears the burden of proof in the 228 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 rest of the statute. 42 U.S.C. §§ 9607(b), 9601(35)(A). Given CERCLA's overall remedial purpose and strict liability emphasis, it would be an anomaly for Congress to switch the burden of proof in this one isolated instance. This confirms that the section merely strips a defense; it does not create liability. Interstate Power, 909 F. Supp. at 1235. As such, it has absolutely no effect on owners who wish to conceal contamination on their property.
3. The proper construction promotes the Congressional intent that parties responsible for contaminationparticipate in clean-up efforts. CERCLA was intended in part to assure that parties responsi- ble for releases of hazardous substances participate in clean-up. See e.g., Chem. Waste Mgmt., Inc. v. Armstrong World Indus., Inc, 669 F. Supp. 1285, 1290 n.6 (E.D. Pa. 1987). Under the proper view of CERCLA responsibilty, the passive disposal con- struction advances this important objective of CERCLA, which the active reading would frustrate. The common thread joining CERCLA's responsible classes is simply occupying a position to control the contamination at some time before or after it is caused. To confirm this, one need go no further than the liability provisions of the statute itself. Current property owners are responsible if they merely own contaminat- ed sites. 42 U.S.C. § 9607(a)(1). Those possessing hazardous waste are responsible if they simply- arrange for its disposal, treatment or transport. 42 U.S.C. § 9607(a)(3). Finally, trans- porters of hazardous waste are responsible solely for selecting its destination for disposal or treatment. 42 U.S.C. § 9607(a)(4). In none of these cases does a party's responsibility depend on it actually causing site contamination, either actively or through negligence. CERCLA's remedial framework thus holds responsible those in a position to control the harm. Like the other three categories of responsible parties, passive past owners are squarely positioned to halt the unchecked seepage of contamination on their land. In- deed, they are the only parties so situated. To read into the stat- ute a different standard for just one of the four responsible classes introduces a fundamental inconsistency into an otherwise uniform law. 1997] BEST BRIEF - RESPONDENTS 229
C. Never has causation been a prerequisite to initial CERCLA liability; yet, a reading of disposal restricted to active conduct would importjust such a requirement. Under CERCLA, both current owners and past owners "at the time of disposal" are strictly liable for response costs, regardless of who actually caused the contamination. 42 U.S.C. §§ 9607(a)(1), (2). While the initial liability determination under CERCLA disregards causation, the statute provides limited affir- mative defenses in another section based, in part, on a defendant's lack of causation. 42 U.S.C. § 9607(b)(1)-(4). This demonstrates an unequivocal Congressional intent to sever the issue of initial liability from the issue of innocence, the latter of which must be established by the defendant through a third party or innocent owner defense. 42 U.S.C. §§ 9607(a), 9607(b), 9601(35). An examination of RCRA, from which CERCLA expressly draws its definition of disposal, confirms that disposal and cau- sation are unrelated principles. 42 U.S.C. §§ 6903(3), 9601(29). Sections 7002 and 7003 'of RCRA are the only provisions of the statute dealing, like CERCLA, with the remediation of hazard- ous sites. 42 U.S.C. §§ 6972, 6973. A private party or the EPA, respectively, may take remedial action against past or present owners who contributed to the disposal when it endangers health or the environment. 42 U.S.C. §§ 6972(a), 6973(a). Thus, liability under these sections hinges upon: (i) the occurrence of a disposal; and (ii) the owner's contribution to the disposal. Id. The scheme of liability quite literally separates the cause of the environmen- tal injury - the contribution - from the injury itself - the disposal. Under RCRA, a disposal occurs whenever hazardous chemicals leak on disposal sites. 42 U.S.C. § 6903(3); See United States v. Waste Indus., Inc., 734 F.2d 159, 164-65 (4th Cir. 1984); United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), affd, 688 F.2d 204 (3d Cir. 1982). An owner may contribute to disposal by allowing the burying of waste in a manner which results in leak- ing. Price, 523 F. Supp at 1073. While the act of chemicals leak- ing in the ground is not possible without someone placing them there, the actual leaking takes place without human interaction. It is precisely this separation between the disposal and its 230 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 human cause, whether malfeasance or nonfeasance, that is criti- cal to a proper understanding of disposal in CERCLA. Unlike in RCRA, Congress did not limit CERCLA section 9607(a)(2) liabili- ty to past owners who "contributed to" disposal. Rather, it de- cided that liability is triggered by mere ownership "at the time of disposal"; that is, at the time of leaking. Requiring an active human component to disposal, however, incorporates a causation requirement that Congress omitted. It would premise a past owner's liability on his/her affirmative creation or failure to pre- vent another's affirmative creation of the disposal. It would be odd for Congress to carry over the causation requirement from RCRA when CERCLA was enacted to deal with RCRA's inability to fully address the inactive waste site problem. It would be even more curious for Congress to do it without clearly saying so, when RCRA makes clear Congress knew precisely how.
D. Recognizing that disposal includes unchecked seepage poses no threat to the ability of current owners to assert the "innocent landowner" defense. One requirement of the "innocent laridowner" defense is that the owner acquire the property "after the disposal or placement" of hazardous waste. 42 U.S.C. § 9601(35)(A) (emphasis supplied). A plain reading of this provision, which honors its use of the disjunctive, is that a current owner is eligible for the defense in two situations. The first is if the property was acquired after "disposal" - ie. when all active dumping or passive migration has ceased. Secondly, if the migration is ongoing, the owner may still assert the defense as long as the property was acquired after the waste's "placement," a term which unambiguously re- fers to a discrete act with a definite stopping point in time. Thus, the defense remains available to a wide range of current owners, including those with sites where waste is presently migrating. IAny reading of the provision which deprives the phrase "or placement" of all meaning violates two important principles. See, e.g., United States v. CDMG Realty Co., 96 F.3d 706, 716 n.7 (3d Cir. 1996); United States v. Petersen Sand and Gravel, Inc., 806 F. Supp. 1346, 1352-53 (N.D. Ill. 1992). First, courts are bound to give all words in the statute operative effect. United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) (reciting "the settled rule that a statute must, if possible, be construed in such fashion 1997] BEST BRIEF - RESPONDENTS that every word has some operative effect."). Second, statutes must be read to avoid absurd results. Griffin v. Oceanic Contrac- tors, Inc., 458 U.S. 564, 575 (1982). The absurdity here would be that current owners could assert the defense only when waste is contained and nonmigratory. Congress could not have meant the defense to be unavailable to such a large number of landowners. Several courts, however, violate these principles to support the erroneous conclusion that disposal cannot include migration. See, e.g., CDMG Realty, 96 F.3d at 716. Nor does the fact that the definition of "disposal" includes "placing" require a different conclusion. See 42 U.S.C. § 6903(3). "Placement," like the gerund "placing," is narrower than "dispos- al" and denotes an event with a discrete endpoint in time. '"Dis- posal," on the other hand, includes both ongoing occurrences ("leaking) and discrete occurrences ("injection"). If migration prevents a defendant's use of the "after the disposal" trigger, Congress included the word "placement" as an alternative defen- sive trigger. This avoids the very result that Petersen and CDMG Realty rely on as an erroneous basis for insulating passive past disposers from liability.
E. "Disposal" must encompass the unchecked seepage of hazardous waste because it is the sole construction which avoids the inequity of establishing an arbitrary double-standard which treats similarly situated past and current owners differently under CERCLA. 1. By its terms, the "innocent landowner"defense equally protects from strict liability both past and current owners who are truly innocent. The "innocent landowner" defense allows landowners who have done all that can be expected with regard to contaminated property to avoid CERCLA's broad net of strict liability. 42 U.S.C. §§ 9601(35), 9607(b)(3). As long as an owner duly investi- gates the property before purchase, 42 U.S.C. § 9601(35)(B) ("ap- propriate inquiry"), acts with "due care" once contamination is discovered, 42 U.S.C. § 9607(b)(3)(a), and takes precautions against foreseeable third party acts, 42 U.S.C. § 9607(b)(3)(b), he/she will not be subjected to liability. Because the language and structure of the statutory "innocent landowner" defense shows it is available to past and current owners alike, there is 232 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
no inequity created by passive disposer liability; past and cur- rent owners share a level playing field. The only provision which may raise the remotest doubt about this is section 9601(35)(C). This provision has been erroneously construed by proponents of the active construction to eliminate the defense for all prior owners. See, e.g., CDMG Realty, 94 F.3d at 716-17. The reasoning goes that, because Congress could not have intended such inequity between prior and current owners, Congress could not have intended passive disposer liability. Id. However, the first conclusion is typically reached in cursory fashion or in dicta. Id. at 717 n.8 ("We need not decide that issue in this case."). Any studied reading of the section and its broader context reveals that "[it does not mean that] a party who would otherwise qualify for the innocent-landowner exception forfeits that exemption by selling the property and thereby becoming a 'previous' owner of the property." Westwood Pharmaceuticals, Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 91 (2d Cir. 1992). The same standards for the defense thus apply to past and present owners, and passive disposer liability creates no inequity.
2. Recognizing the passive component of disposal preserves equity; it ensures that past owners and current owners, similarly situated in all respects but the timing of response costs, share equal footing under law. The passive construction of "disposal" alone ensures that CERCLA's strict liability is applied equitably to similarly situat- ed past and current property owners. Owners of property at the time disposal occurred are liable without any regard to whether they actively participated in the disposal; the current owner is liable without any regard to the state of knowledge or fault. It is far more consistent with this legislative scheme to include within the sweep of liability past owners who owned the property dur- ing a period in which the property was actively discharging toxic waste into the environment. The inequity of the active construc- tion, however, is palpable: A past owner] could insulate himself from liability by virtue of his passivity, so long as he transfers the property before any response costs are incurred. A more conscientious owner who undertakes the task of cleaning up the environmental hazard would, on the other hand, be liable as the current owner ... [the active con- 1997] BEST BRIEF - RESPONDENTS 233
struction] thus introduces the anomalous situation where a cur- rent owner ... could bear a substantial share of the cleanup costs, while a former owner who was similarly situated would face no liability at all. ...A CERCLA regime which rewards indifference to environmental hazards and discourages voluntary efforts at waste cleanup-cannot be what Congress had in mind. Nurad, 966 F.2d at 845-46.
II. PETITIONER FAILED TO PROVE AN "INNOCENT LANDOWNER" DEFENSE BECAUSE THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PETITIONER HAD REASON TO KNOW OF THE CONTAMINATION AND WHETHER IT MADE ALL APPROPRIATE INQUIRY CONSISTENT WITH GOOD COMMERCIAL PRACTICE A. CERCLA imposes strict requirements on Petitioner when it attempts to avoid liability by using the "innocent landowner" defense. A responsible party can avoid CERCLA liability only by estab- lishing one of the statute's narrow affirmative defenses. 42 U.S.C. §§ 9607(b)(1)-(4). Costanza asserts the "innocent landown- er" defense in order to avoid contributing to the clean-up of long present contamination on its former property. Costanza bears the ultimate burden of proving all elements of the defense by a preponderance of evidence. 42 U.S.C. §§ 9601(35), 9607(b)(3). The key element Costanza must prove is that Kramer's negligent dumping of the TCE did not occur in connection with a "contrac- tual relationship" with Costanza. 42 U.S.C. § 9607(b)(3). In defining this element, "Congress set down a strict rule that any instrument transferring title or possession of the facility would be a 'contractual relationship' barring the use of the de- fense unless certain enumerated conditions were met." United States v. Pac. Hide and Fur Depot, Inc., 716 F. Supp. 1341, 1347 (D. Idaho 1989). Accordingly, Costanza can avoid the contractual bar to the defense only by demonstrating that it neither knew nor had reason to know of the contamination. 42 U.S.C. § 9601(35)(A). In order for Costanza to establish that it had "no reason to know," it must prove it undertook, "at the time of ac- quisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability." 42 U.S.C. 234 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
§ 9601(35)(B) (emphasis supplied). While CERCLA does not define "appropriate inquiry" or "good commercial or customary practice," its legislative history reveals that "a reasonable inquiry must have been made in all circum- stances, in light of best business and land transfer principles." H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. 187 (1986). The statute also specifies five factors that courts "shall"consider in deciding whether Costanza has made "all appropriate inquiry:" [1] [Any specialized knowledge or experience on the part of the defendant, [2] the relationship of the purchase price to the value of the property if uncontaminated, [3] commonly known or reason- ably ascertainable information about the property, [4] the obvious- ness of the presence or likely presence of contamination at the property, and [5] the ability to detect such contamination by ap- propriate inspection. 42 U.S.C. § 9601(35)(B). The standard of inquiry is applied on a case-by-case basis and with reference to practices at the time of acquisition. In re Hemingway Transp., Inc., 174 B.R. 148, 166 (Bankr. D. Mass. 1994). Furthermore, the standard was intended to evolve such that defendants, "shall be held to higher stan- dards as public awareness of the hazards associated with haz- ardous substance release [grows] .... ." Id. at 166 (quoting H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. 187 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 3280). Costanza's appropriate inquiry standard is further heightened by the commercial nature of the transaction in which it was involved. Congress intended that commercial transactions bear the strictest standard of appropriate inquiry. United States v. Pac. Hide and Fur Depot, Inc., 716 F. Supp. 1341, 1348 (D. Idaho 1989) (citing 1986 U.S.C.C.A.N. 2835, 3279-80). Accordingly, courts seldom grant summary judgment to commercial defen- dants asserting the "innocent landowner" defense. See generally William B. Johnson, Annotation, Third-PartyDefense To Liabili- ty Under § 107 of Comprehensive Environmental Response, Com- pensation and Liability Act (42 USCS § 9607), 105 A.L.R. FED. 21 (1991). This is not to suggest, however, that it is unheard of for a commercial defendant to prevail on an "innocent landown- er" defense at trial. See, e.g., Int'l Clinical Labs., Inc. v. Stevens, No. CV 87-3472, 1990 WL 43971 *2 -*4 (E.D.N.Y. Jan. 11, 1990) (commercial defendant had no reason to know of contamination). The standard simply achieves the unmistakable Congressional 1997] BEST BRIEF - RESPONDENTS 235 goal of providing broad liability and narrow defenses to force responsible private parties to participate in remediating the nation's hazardous waste sites. See Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 386 (8th Cir. 1987). Furthermore, this result is consistent with the high evidentiary burden borne by a party seeking summary judgment.
B. Petitioner failed to meet the high burden of proof demanded on summary judgment to establish the standard of all appropriate inquiry at the time of purchase; thus, Petitioner failed to prove it met that standard. To obtain summary judgment, Costanza must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The Court reviews a summary judgment motion de novo. City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244, 250 (6th Cir. 1994). In considering whether Costanza has met its burden, "[i]f... there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment.... ." In re Japanese Elec. Prod. Antitrust Litigation, 723 F.2d 238, 258 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Courts have been understandably reluctant to grant summary judgment in the CERCLA context due to the difficulty of estab- lishing "good customary and commercial" practice. In light of often conflicting expert testimony, courts are not often able to find that no genuine issue of material fact exists on this issue. Illustrating this principle is United States v. Serafini, 706 F. Supp. 346 (M.D. Pa. 1988), where the court denied the government's summary judgment motion against a defendant real estate developer asserting the "innocent landowner" defense. Evidence demonstrated that hundreds of abandoned metal drums visibly littered the 225 acre site at the time of purchase, and that the landowner did not even conduct an on-site inspec- tion before buying. Id. at 352-53. However, because the govern- ment "presented no evidence from which the court [could] con- clude that the defendants' failure to inspect or inquire was incon- sistent with good commercial or customary practices,' the court 236 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 found "unresolved questions of fact as to the propriety of the defendants' conduct at the time of the purchase," and therefore denied summary judgment. Id. at 353. The court noted, however, that the government could have met its burden by submitting affidavits from real estate developers that it was good commer- cial or customary practice at the time to inspect such a site be- fore purchase. Id. at 353 n.8. Summary judgment is appropriate only where the record unequivocally establishes what "good cus- tomary and commercial" practice was at the time of purchase. Serafini and settled standards for summary judgment dictate that Costanza's summary judgment motion be denied. Costanza has failed to establish the standard for customary or commercial practice at the time of purchase. The evidence that it has pre- sented does not compel the Court to conclude that it was "good customary and commercial practice" for Costanza neither to have soil and water samples taken when it knew the barrels of liquid chemicals were stored and recently moved on the site, nor to make a simple inquiry to Kramer regarding the handling of the TCE. Indeed, on summary judgment the opposite inference must be drawn. Costanza simply cannot prevail on summary judgment because it did not produce conclusive evidence on an essential element of its affirmative defense.
C. Plain application of the statutorily mandated appropriate inquiry factors, together with the required inferences under summary judgment, preclude the Court from finding that Petitionermade appropriateinquiry. 1. Petitioner's specialized knowledge and experience as a commercial real estate developer prevents it from demonstrating that it made appropriateinquiry. In deciding if Costanza has made "appropriate inquiry" the Court must take into account any specialized knowledge or expe- rience that Costanza possesses. 42 U.S.C. § 9601(35)(B). As a real estate developer, Costanza has specialized knowledge of the kinds of inquiries that a land transaction requires, as well as the experience to recognize "red flags" that should alert it to the presence of possible contamination. No less should be required of Costanza than was required of the real estate developers in Foster v. United States, 922 F. Supp. 642, 655-56 (D.D.C. 1996). While the developers had nb actual knowledge of the presence of 1997] BEST BRIEF - RESPONDENTS 237 hazardous chemicals prior to purchase, id. at 652, they failed to make simple inquiries of the prior owner as to their possible presence. Id. at 654. Furthermore, as a result of their cursory visual inspection of the property, the developers failed to detect contamination visible as soil discoloration. Id. at 655. The court rejected the developers claim of "appropriate inquiry," and was unwilling to excuse their carelessness in part because of their specialized experience as real estate developers. Id. at 657. Nor can Costanza be excused from its carelessness. Just as in Foster, Costanza neglected to ask the prior owner about the possible presence of contamination. But it had even more reason to ask. Unlike the developers in Foster, Costanza was fully aware of Kramer's chemical processing operations, the barrels of chemicals on the Kramer property and their hasty removal. (R. at 3,4). Accordingly, Costanza's attempt to prove it made "appro- priate inquiry," like the Foster developers, must fail.
2. Because Petitioner failed to establish that the price of the property did not reflect a discount for contamination, it cannot demonstrate that it made all appropriateinquiry. Under CERCLA, the Court must consider the "relationship of the purchase price to the value of the property if uncontaminat- ed" when examining Costanza's "appropriate inquiry." 42 U.S.C. § 9601(35)(B). If a disparity exists between the two, this "sup- ports the conclusion that [the purchaser] had reason to know or at least cause to investigate the reasons for such disparity." Foster, 922 F. Supp. at 656. The record does not disclose either the purchase price or the land's uncontaminated value. Thus, this Court is unable to determine the relationship between the two, and can therefore reach no conclusion on an essential part of the "appropriate inquiry" question. As a result, Costanza has failed to make a sufficient showing on an essential element of its affirmative defense, and cannot prevail on summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3. Petitioner's failure to pursue sources of reasonably ascertainableinformation and lack of response to obvious signs of the likely presence of contamination at the site prevent Petitioner from demonstrating that it made appropriateinquiry. In examining "appropriate inquiry," the Court is obligated to 238 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 consider whether Costanza has failed to take advantage of "com- monly known or reasonably ascertainable information about the property" and whether there were obvious signs of the "presence or likely presence of contamination" at the Kramer factory site. The record reveals that Costanza fails on both counts. When defendants fail to take advantage of obvious sources of information about the property, they cannot rely on the "inno- cent landowner" defense to protect them. For example, where several brothers had actual knowledge of site contamination, and their defendant wives failed to simply ask them about possible environmental problems with the land, the court found the wives' inquiry inadequate. Chesapeake and Potomac Tel. Co. of Virginia v. Peck Iron and Metal Co., 814 F. Supp. 1269, 1281 (E.D. Va. 1992). Similarly, a landlord was aware that its tenant used hazardous chemicals in its laundry business, and was aware of contamination under investigation in the area, yet failed to ask the tenant about its disposal practices. United States v. A & N Cleaners and Launderers, Inc., 854 F. Supp. 229, 235 (S.D.N.Y. 1994). His failure of inquiry was not excused; he was not an "innocent landowner." Id. at 244-45. Like the defendant wives in Chesapeake, Costanza's failure to ask Kramer simple questions, such as whether the site was con- taminated or the TCE barrels properly removed, is a fundamen- tal failure to take advantage of an obvious source of information. Just like the landlord in A & N Cleaners, Costanza should have asked Kramer about his disposal practices in order to be consid- ered an "innocent landowner." Costanza's "appropriate inquiry" also fails because it ignored the obvious signs of potential contamination at the factory site. Respondent does not contend that Costanza was required to prevent or have actual knowledge of the spill. However, Costanza was required to be alert to "red flags" suggesting possi- ble contamination and adjust its inquiry accordingly. There was no shortage of "red flags" waving on Kramer's property. Barrels of liquid chemicals surrounded Kramer's chemically intensive manufacturing plant. (R. at 4). They were rapidly removed. Moreover, Costanza was aware that Kramer was going out of business. (R. at 3-4) As a commercial developer, Costanza knows the economic realities of business. Costanza should have known that Kramer might feel pressured to conceal contamination to avoid any further financial hardship. 1997] BEST BRIEF - RESPONDENTS 239
4. Petitioner'sfailure to use its ability to detect contamination by appropriate inspection prevents it from demonstrating that it made appropriateinquiry. Costanza's reliance on an inadequate site assessment to satis- fy the "appropriate inquiry" element of the "innocent landowner" defense is misplaced. Courts have been unforgiving of defendants whose site assessments failed to uncover fairly detectable con- tamination. For example, a buyer and a lessee hired two engi- neering consultants to perform an environmental assessment of a warehouse which they knew contained dust from the prior owner's industrial operations. BCW Assocs., Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL 102641, at *3 (E.D. Pa. Sept. 29, 1988). Neither investigation tested the dust, which was later found to contain hazardous lead. Id. Despite the performance of two separate site assessments, the court denied defendants the benefit of the "innocent landowner" defense. Id. at *22. This result is not unique. Where a commercial buyer knew of the presence of slag piles containing heavy metals on the site, and had a site assessment performed, his site assessment was inade- quate. Wickland Oil Terminals v. Asarco, Inc., No. C-83-5906-SC, 1988 WL 167247, at *4 (N.D. Cal. Feb. 23, 1988). Despite his awareness of potential contamination, the buyer did not direct that test borings be taken, limiting the effectiveness of the as- sessment. Just like the commercial defendants in BCW Associates and Wickland Oil, Costanza attempts to insulate itself from CERCLA liability through an inadequate site assessment. Like these de- fendants, Costanza's attempt must fail. When it came to the site assessment, Costanza chose an inexperienced consulting firm. (R. at 4). While "appropriate inquiry" is meant to focus on "the pre- vious ownership and uses of the property," 42 U.S.C. § 9601(35)(B), the report of Costanza's consultant had no such focus, since it made no mention of the prior use of the property. (R. at 4). Additionally, Costanza knew of liquid chemicals on the site, and should have known that a visual inspection alone might not detect a spill. Despite this knowledge, no soil or water test- ing was done by Costanza's consultant. (R. at 4). Finally, there exists a genuine issue of fact whether the spill itself should have been noticed because of the soil disturbance. 240 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
While the record does not reveal the exact size, location, or other visual characteristics of the spill area itself, the required infer- ence on summary judgment is that the patch of disturbed soil should not have escaped the notice of properly trained engineer- ing consultants. A trial is necessary. Straightforward application of the statutorily mandated "ap- propriate inquiry" factors, together with the required inferences under summary judgment, preclude the Court from finding that Costanza made "appropriate inquiry." Thus, Costanza has failed to establish that it is an "innocent landowner" under CERCLA.
III. PETITIONER IS NOT ENTITLED TO SUMMARY JUDGMENT ON THE RCRA CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND BECAUSE RESPONDENT'S AVOIDANCE OF THE THREAT DOES NOT ABATE ITS IMMINENCE AS A MATTER OF LAW. The Resource Conservation and Recovery Act ("RCRA") pro- vides for citizens suits against any responsible party "contribut- ing to the past or present ... disposal of any solid or hazardous waste which may present an imminent and substantial endan- germent to health or the environment .... ." 42 U.S.C. § 6972(a)(1)(B) (1994). Costanza must prove that under no rea- sonable view of the record may the contamination on the Van deLay site present such an "imminent and substantial endanger- ment." See FED. R. CIV. P. 56(c); In re JapaneseElec. Prod. Anti- trust Litigation, 723 F.2d 238, 258 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). This, however, Costanza fails to do. While RCRA does not define "imminent and substantial en- dangerment," courts have explained the broad meaning of the phrase. An "imminent and substantial endangerment" exists when there is "reasonable cause for concern that someone or something may be exposed to a risk of harm.., if remedial ac- tion is not taken." United States v. Conservation Chem. Co., 619 F. Supp. 162, 194 (W.D. Mo. 1985). The standard does not re- quire the present existence of a "true emergency." Acme Printing Ink Co. v.Menard, Inc., 870 F. Supp. 1465, 1479 (E.D. Wis. 1994). Nor does imminent endangerment require that any actual harm be present now or occur immediately. Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994). It requires only 1997] BEST BRIEF - RESPONDENTS 241 that a risk of threatened harm is present on the site. Id. Fur- thermore, for endangerment to be substantial, it need not be quantified; it does not demand "proof that a certain number of persons will be exposed, that 'excess deaths' will occur, or that a water supply will be contaminated to a specific degree." Conser- vation Chemical, 619 F. Supp. at 194. One court announced a more specific test to evaluate when an "imminent and substantial endangerment" exists. The criteria relevant on appeal are that: "(1) there must be a population at risk..., (3) the level of contaminants must be above levels that are considered acceptable by the State, and (4) there must be a pathway of exposure." Price v. United States Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992), affid, 39 F.3d 1011 (9th Cir. 1994). Although Costanza demands summary judgment on this issue, he has failed to prove the absence of a genuine issue of fact as to each of these criteria. To earn summary judgment, Costanza must demonstrate the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. FED. R. CIv. P. 56(c). To determine if Costanza has met its burden, the Court must "scrutinize the evidence ... in the light most favorable to the non-moving party ... according the non-movant the benefit of every reasonable factual inference.., and resolv- ing all doubts as to the facts or the existence of any material fact against the moving party." Conservation Chemical, 619 F. Supp. at 179 (citations omitted).
A. A genuine issue of fact as to whether the contamination may pose an imminent and substantial endangerment precludes Petitionerfrom prevailing on summary judgment. Costanza is not entitled to summary judgment on the RCRA claim because it has not disproven that the Van deLay site "may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). Even on the merits of this case, Van deLay would not have to show incontrovertible evidence to establish the endangerment. See Gache v. Town of Harrison, 813 F. Supp. 1037, 1044 (S.D.N.Y. 1993) ('To the ex- tent defendants contend that plaintiff must show an incontro- vertible 'imminent and substantial' harm to health and the envi- ronment defendant misreads the statute."). Furthermore, the 242 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 plain language of the statute requires only a showing that the conditions on a contaminated site "may present" an imminent and substantial endangerment. 42 U.S.C. § 6972(a)(1)(B). Under a reasonable view of the record, the continuing threat at the Van deLay site satisfies all elements of the Price test for "imminent and substantial endangerment." The facts first reveal a population at risk, in the form of Van deLay's employees who would otherwise depend on the well or aquifer for their drinking water. (R. at 2-3). Second, a pathway to contamination is pres- ent: The Kramer well and aquifer on the west side of the site have already been contaminated, and this same aquifer supplies the east side of the property where Van deLay's employees work. (R. at 3). Finally, the TCE contamination is "substantial" for two rea- sons. First, despite the relatively low additional cancer risk in the contaminated soil, the MDHE tests showed "high levels" of the carcinogen in the Kramer well itself. (R. at 3). Second, Van deLay's reaction to this level of contamination, procurement of an alternative water source, conforms to the National Contingen- cy Plan. Id. The National Contingency Plan, found in CERCLA, prescribes "procedures and standards for responding to releases of hazardous substances," including those which "pose substan- tial danger to the public health or the environment." 42 U.S.C. §§ 9605(a), (a)(2). Van deLay's conformity with this plan demon- strates that the site poses substantial danger under CERCLA, which is substantially similar to the RCRA provision at issue. This permits the reasonable inference, which must be made in Van deLay's favor as a nonmovant on summary judgment, that there is also a substantial danger under RCRA. Costanza has presented evidence to show the contamination does not pose "imminent and substantial endangerment." Howev- er, its assertions do no more than create genuine issues of fact for resolution at trial. When conflicting reasonable factual inter- pretations exist, the Court must deny summary judgment. Unit- ed States v. Conservation Chem. Co., 619 F. Supp. 162, 179 (W.D. Mo. 1985). As one court explained, 1997] BEST BRIEF - RESPONDENTS 243
[i]f the evidence presented to support or oppose the motion is sub- ject to conflicting interpretation ... summary judgment is improp- er, and should likewise be denied where [the facts] require an evaluative judgment between two rationally possible conclusions, even if the court is convinced that the evidence makes it unlikely that a party can prevail at trial. Id. at 179 (citations omitted). In light of the competing factual inferences presented by this record, summary judgment is im- proper.
B. As a matter of law, Respondent's mere knowledge of the contamination and procurement of an alternate clean water source does not abate the "imminent" nature of the threat posed by the existing contamination on the site. A party may avoid liability under RCRA by showing that the contamination on a site has been abated, by clean-up or other means. See, e.g., Meghrig v. KFC Western, Inc., 116 S. Ct. 1251 (1996); Price v. United States Navy, 818 F. Supp. 1323 (S.D. Cal. 1992). However, as a matter of law, Van deLay's reasonable avoidance of the hazard cannot be considered abatement of an "imminent and substantial endangerment to health or the envi- ronment." Van deLay's actions have in no way removed the threat from the site; they have simply side stepped it. And al- though Van deLay has temporarily staved off the risk of ingest- ing the carcinogen, the greater threat to the environment re- mains. For this Court to hold otherwise would defeat the very intent of RCRA.
1. Abatement requires clean-up or containment; because neither have occurred here, the threat is still "imminent" The threat to the employees on the Van deLay site is still "imminent" because the TCE contamination is still present. No abatement efforts in the form of clean-up or containment have reduced the "imminent" nature of the threat. When abatement has been found, clean-up of some type has commonly occurred on the property. See, e.g., Price v. United States Navy, 818 F. Supp 1323 (S.D. Cal. 1992). In Price, an "imminent and substantial endangerment" from a lead spill was abated by clean-up efforts which involved the installation of a substantial concrete barrier 244 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 that protected the population. Id. at 1325. Furthermore, this Court has found that the "imminent" threat of petroleum prod- ucts had been removed because plaintiffs had engaged in signifi- cant clean-up efforts. Meghrig, 116 S. Ct. at 1255. In both cases, it was controlling that clean-up efforts were already complete. Here, however, there is no concrete barrier on the Van deLay site, nor has any clean-up taken place. While there is precedent finding that knowledge of contamina- tion and procurement of an alternate water supply abates an en- dangerment, it is unpersuasive. Davies v. Nat'l Coop. Refinery Ass'n, No. 96-1124-WEB, 1996 WL 529208 at *3 (D. Kan. July 12, 1996). Davies purports to rely on the Meghrig and Price deci- sions for its holding. However, these cases stand merely for the proposition that a threat is no longer "imminent" or "substantial" when it has been cleaned up to the maximum extent feasible. Meghrig, 116 S. Ct. at 1255; Price, 818 F. Supp. at 1325. Both courts recognized that when the source of the threat has been neutralized by clean-up or physical containment, then and only then has both the present and future threat been abated. Davies misapplies these cases by failing to recognize that there cannot be abatement where the threat has not been neutralized. More- over, the reasoning displayed in the Davies decision, if widely adopted, would defeat the fundamental intent of RCRA.
2. Considering avoidance of hazardous contamination as an abatement of an "imminent" threat defeats RCRA's legislative intent. RCRA's remedial nature demands that it be broadly construed to ensure its purposes are fulfilled. United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989). The national policy of RCRA is to reduce the generation of hazardous waste and to ensure the proper treatment, storage and disposal of that waste so as to "minimize the present and future threat to human health and the environment." 42 U.S.C. § 6902(b). When its broader regulatory scheme fails to prevent hazardous waste from entering the environment, RCRA provides a citizen suit provision to minimize the threat posed. 42 U.S.C. § 6972(a)(1)(B). How- ever, for this Court to hold that Van deLay's avoidance of the threat through the purchase of clean water effectively abates the imminent endangerment at the Van deLay site would effectively 1997] BEST BRIEF - RESPONDENTS 245 strip RCRA of its citizen suit provision. Equating the avoidance of contamination with abatement of the threat would require that parties like Van deLay ignore chemical hazards and expose themselves and their employees to harm as a prerequisite to bringing a RCRA citizen suit. Congress could not have meant for citizens to expose themselves to a threat to their health in order to satisfy a provision of a law de- signed to "minimize the present and future threat to human health." 42 U.S.C. § 6902(b). For example, in a speech on the Senate floor, Senator George Mitchell, author of the 1984 amend- ments to the RCRA citizen suit provision, emphasized the im- portance of finally giving citizens the power to abate imminent and substantial endangerment when the EPA was too overbur- dened to act. Without this provision, "[ilf the EPA does not act the endangerment continues .... The [EPA] clearly does not have the resources to deal with all of these sites, nor do the States. Citizen suits to abate imminent hazards expand the na- tional effort to minimize these very real threats to our well be- ing." 130 CONG. REc. 20815 (July 25, 1984) (floor speech of Sen- ator Mitchell). As a practical matter, equating avoidance of a threat with abatement of the threat would emasculate the citizen suit provi- sion. Under this interpretation few, if any, parties would be eligible or willing to bring this suit. Once they gained knowledge of the contamination and sought to avoid the harm they would lose their right to sue. It is difficult to imagine how this arrange- ment would reduce EPA's caseload or facilitate the abatement of hazardous waste sites. CONCLUSION For the foregoing reasons, Respondent Van deLay Industries respectfully requests that the holding of the appellate court be- low be affirmed. 246 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
STATUTORY APPENDIX
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6987 (1994)
42 U.S.C. § 6902. Objectives and national policy (b) National policy. The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditious- ly as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment.
42 U.S.C. § 6903. Definitions As used in this chapter: (3) The term "disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. § 6972. Citizen suits (a) In general Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf- (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treat- ment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, 1997] BEST BRIEF - RESPONDENTS 247
treatment, transportation, or disposal of any solid or haz- ardous waste which may present an imminent and substan- tial endangerment to health or the environment; or
(2) against the Administrator where there is alleged a fail- ure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administra- tor. Any action under paragraph (a)(1) of this subsection shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur. Any action brought under paragraph (a)(2) of this subsection may be brought in the district court for the district in which the alleged violation occurred or in the District Court of the District of Co- lumbia. The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condition, requirement, prohibition, or'order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Administrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under section 6928(a) and (g) of this title.
42 U.S.C. § 6973. Imminent hazard (a) Authority of Administrator Notwithstanding any other provision of this chapter, upon re- ceipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administra- tor may bring suit on behalf of the United States in the appro- priate district court against any person (including any past or present generator, past or present transporter, or past or pres- ent owner or operator of a treatment, storage, or disposal fa- cility) who has contributed or who is contributing to such han- dling, storage, treatment, transportation or disposal to re- strain such person from such handling, storage, treatment, 248 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
transportation, or disposal, to order such person to take such other action as may be necessary, or both. A transporter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment, or disposal taking place after such solid waste or hazardous waste has left the posses- sion or control of such transporter if the transportation of such waste was under a sole contractural [FN1] arrangement aris- ing from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, trans- portation and disposal of such waste. The Administrator shall provide notice to the affected State of any such suit. The Ad- ministrator may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (1994)
42 U.S.C. § 9601. Definitions For purpose of this subchapter: (29) The terms "disposal", "hazardous waste", and "treatment" shall have the meaning provided in section 1004 of the Solid Waste Disposal Act. (35)(A) The term "contractual relationship", for the purpose of section 9607(b)(3) of this title, includes, but is not limited to, land contracts, deeds or other instruments transferring title or possession, unless the real property on which the facility con- cerned is located was acquired by the defendant after the dis- posal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence:
(i) At the time the defendant acquired the facility the defen- dant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility.
(ii) The defendant is a government entity which acquired 1997] BEST BRIEF - RESPONDENTS 249
the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by inheritance or be- quest.
In addition to establishing the foregoing, the defendant must establish that he has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title. (B) To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisi- tion, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or cus- tomary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defen- dant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by ap- propriate inspection.
(C) Nothing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or oper- ator of such facility who would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such de- fendant.
(D) Nothing in this paragraph shall affect the liability under this chapter of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a 250 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
hazardous substance which is the subject of the action relating to the facility.
42 U.S.C. § 9603. Notification requirements respecting released substances (b) Penalties for failure to notify; use of notice or information pursuant to notice in criminal case Any person- (3) in charge of a facility from which a hazardous substance is released, other than a federally permitted release, in a quanti- ty equal to or greater than that determined pursuant to sec- tion 9602 of this title who fails to notify immediately the ap- propriate agency of the United States Government as soon as he has knowledge of such release or who submits in such a notification any information which he knows to be false or misleading shall, upon conviction, be fined in accordance with the applicable provisions of Title 18 or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. Notification received pursuant to this subsection or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.
42 U.S.C. § 9605. National contingency plan (a) Revision and republication Within one hundred and eighty days after December 11, 1980, the President shall, after notice and opportunity for public comments, revise and republish the national contingency plan for the removal of oil and hazardous substances, originally prepared and published pursuant to section 1321 of Title 33, to reflect and effectuate the responsibilities and powers creat- ed by this chapter, in addition to those matters specified in section 1321(c)(2) of Title 33. Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants, which shall include at a mini- mum: 1997] BEST BRIEF - RESPONDENTS
(1) methods for discovering and investigating facilities at which hazardous substances have been disposed of or other- wise come to be located;
(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;
(3) methods and criteria for determining the appropriate ex- tent of removal, remedy, and other measures authorized by this chapter;
(4) appropriate roles and responsibilities for the Federal, State, and local governments and for interstate and nongov- ernmental entities in effectuating the plan;
(5) provision for identification, procurement, maintenance, and storage of response equipment and supplies;
(6) a method for and assignment of responsibility for report- ing the existence of such facilities which may be located on federally owned or controlled properties and any releases of hazardous substances from such facilities;
(7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous substances or contaminated materials;
(8)(A) criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practi- cable taking into account the potential urgency of such ac- tion, for the purpose of taking removal action. Criteria and priorities under this paragraph shall be based upon relative risk or danger to public health or welfare or the environ- ment, in the judgment of the President, taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at such facilities, the potential for contamination of drinking water supplies, the potential for direct human contact, the potential for de- 252 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
struction of sensitive ecosystems, the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibili- ties, and other appropriate factors;
(B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list no less often than annually. Within one year after De- cember 11, 1980, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities established by the States. To the extent prac- ticable, the highest priority facilities shall be designated individually and shall be referred to as the "top priority among known response targets", and, to the extent practica- ble, shall include among the one hundred highest priority facilities one such facility from each State which shall be the facility designated by the State as presenting the great- est danger to public health or welfare or the environment among the known facilities in such State. A State shall be allowed to designate its highest priority facility only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes;
(9) specified roles for private organizations and entities in preparation for response and in responding to releases of hazardous substances, including identification of appropri- ate qualifications and capacity therefor and including con- sideration of minority firms in accordance with subsection (f) of this section; and
(10) standards and testing procedures by which alternative or innovative treatment technologies can be determined to 1997] BEST BRIEF - RESPONDENTS 253
be appropriate for utilization in response actions authorized by this chapter. The plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances comparable to those required under section 1321(c)(2)(F) and (G) and (j)(1) of Title 33. Following publication of the revised national contingency plan, the response to and ac- tions to minimize damage from hazardous substances re- leases shall, to the greatest extent possible, be in accordance with the provisions of the plan. The President may, from time to time, revise and republish the national contingency plan.
42 U.S.C. § 9607. Liability (a) Covered persons; scope; recoverable costs and damages; interest rate; "comparable maturity" date Notwithstanding any other provision or rule of law, and sub- ject only to the defenses set forth in subsection (b) of this sec- tion- (1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such haz- ardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise ar- ranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of haz- ardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous sub- stances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which caus- es the incurrence of response costs, of a hazardous sub- stance, shall be liable for- 254 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.
The amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26. For purposes of ap- plying such amendments to interest under this subsection, the term "comparable maturity" shall be determined with reference to the date on which interest accruing under this subsection commences.
(b) Defenses There shall be no liability under subsection (a) of this sec- tion for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by--
(1) an act of God;
(2) an act of war; 1997] BEST BRIEF - RESPONDENTS 255
(3) an act or omission of a third party other than an em- ployee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relation- ship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such haz- ardous substance, in light of all relevant facts and circum- stances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the conse- quences that could foreseeably result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.