Law of Hazardous Waste

Spring 2002

Monday 6:00.

Professor Victor Flatt

Office #425, Office Hours: Monday 4:30 - 5:30; weds. 2:30 -3:30

E-mail: vflatt@gsu.edu

This syllabus can be accessed on the internet through GSU College of Law's web site or by the following address: http://law.gsu.edu/vflatt/hazsyl.htm

This class will explore the laws and regulations governing hazardous waste storage, transport, disposal and clean-up. This area of environmental law is one of the most criticized, but also one of the most pervasive and important. Most attorneys should have some familiarity with the concepts that govern hazardous waste law because of the wide net of liability and damages provisions which may snag the unwary client.

Environmental Law and/or Administrative Law may be helpful for this class but is not required.

Course Objectives:

Although the main laws of hazardous waste are touched on briefly in the environmental law class, this course seeks to explore the laws and regulations in a more in-depth manner (particularly the liability and damages provisions which are somewhat unique in environmental law), look at their connections with other areas of practice, and discuss some of the real life situations that will face an attorney in practice. By the end of this class, you should be able to recognize hazardous waste issues, understand how administrative agencies handle liability, and know the step-by-step administrative/legal process of cleaning a hazardous waste site. You should also understand the policy reasons behind statutory hazardous waste laws and how they interact.

Prerequisites:

Although environmental law is not a prerequisite to this class due to scheduling issues, if you have not had environmental law, you should review the table of contents and some of the concepts governing environmental law and hazardous waste in Environmental Law in a Nutshell

Grading:

Your grade will be based on meaningful classroom participation (20%), and an 24 hour take-home final (80%). Obviously, if you miss many classes, your participation grade will suffer. To get an "A" in participation, you need not talk all of the time. You just need to be prepared and alert and willing to discuss the materials with me and with each other. I will assign participation grades at three times during the semester, usually in increments of 70, 80, or 90 and above. You may inquire as to your participation grade at any time.

Assignments:

The readings are generally short, but important. We are using a "practice-oriented" book called "Superfund Law and Practice" by Bradford Whitman, materials on "e-reserve" in the library, and there will be several supplementary handouts. Although the readings themselves are short, you may have to do some independent reading of statutory provisions (I suggest a handy copy of CERCLA) and do a lot of thinking to get your mind around these concepts. Please put in the independent thinking and work necessary! Otherwise the class will not be very beneficial. The assignments for one class may be broken up into sections for easier understandings, so make sure you pay attention and prepare the whole assignment for that day.

January 7

The Problems with Hazardous Waste

I. Introduction and Overview of CERCLA

-Need for controlling hazardous waste

-Toxicity and harm (what is a hazardous waste?)

-The unique provision of damage liability

Assignment: Whitman, pp. 1-14, 251-255

42 U.S.C. Secs. 9601-9606

U.S. v. Monsanto Co., 858 F.2d 160 (4^th Cir. 1988) (reserve)

-The EPA and the power of administrative interpretation

-The role of courts and case law (and our use of case law in class)

Assignment:

Kelley v. E.P.A., 15 F.3d 1100 (D.C. Cir. 1994)(reserve)

Reheis v. AZS Corporation, 503 S.E.2d 36 (Ga. App. 1998) (reserve)

Jan. 14

II. Basic Liability

III. Liability Issues and Defenses

-federal liens

-bankruptcy

-trustee liability(?)

Assignment: Whitman 109-120, 142 U.S.C. secs 9604, 9606, and 9607; 28-132, 159-176; In re Jensen, 995 F.2d 925 (9^th Cir. 1993)(reserve); Canadyne-Georgia Corp. v. NationsBank, N.A., 183 F.3d 1269 (11^th Cir. 1999) (reserve)

Jan.21 Martin Luther King Jr. Holiday - NO Class

Jan. 28

III. Liability Issues and Defenses, cont.

-business entity liability

-successor liability

-lender security interest/ lender liability

-innocent third party defense and consequent pre-purchase investigation (def. of contractual relationship)

An aside:

***"The Science of hazardous waste contamination - what goes wrong, water movement, and what can be done"***

Assignment: Whitman, pp. 133-159, 177-185;Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d. 1489 (11^th Cir. 1996) (this is long but a good review)(reserve); Kelley v. E.P.A,, 15 F.3d. 1100 (D.C. Cir. 1994)(reserve); U.S. v. Bestfoods , 118 S.Ct. 1876(reserve); Read 42 U.S.C. Secs. 9607-9608; handout on hydrogeology; (NY Times article - nulear Site Battling Water)

Feb. 4

IV. The sequence of events in determination and regulation of hazardous waste sites

-discovery

-investigation

-hazard ranking system

-1st Contact

V. What happens when your client is associated with an identified site?

-Determining and limiting the scope of the damage

-the Burden of Proof

-Litigation and Negotiation with EPA as a Potentially Responsible Party (PRP)

Assignment: Whitman, pp. 15-40, 45-73

February 11

- selection of remedy (RI/FS)

- Administrative Provisions

VI. Direct Enforcement Actions and Cost Recovery

-Private Actions and Citizen Suits

Assignment: Whitman, pp. 97-109, 187-206; Read 42 U.S.C. Secs. 9659

Feb. 18

VII. Settlements

-Required Parties and notice thereto

-Allocation of responsibility and releases for responsibility

-limitations of indemnification and hold harmless clauses

-contract defenses and court enforcement generally

-signoffs and covenants not to sue

-De Minimis Settlements

-Challenging a settlement as a non-settling party

-CERCLA clean-up as bar to other environmental laws

-New EPA approaches to settlement

-ADR and settlements

Assignment: Whitman 207-219, 238-247, 222-238; 42 U.S.C. Sec. 9622; EPA Guidance Documents on Settling at "http://es.epa.gov/oeca/osre/970930-3.html" and on "premium settlements" at "http://es.epa.gov/oeca/osre/881117.html" ; The Benefits and Caveats . . . through ADR (handout); skim Brian Pinkowski, "Facilitative Gov't: An Experiment in Federal Restraint", 38 N. Res. J. 1 (1998)

Feb. 25

VIII. What about damages in addition to clean-up liability

-toxic tort damages

- "stigma" damages

-natural resources damages

-actual administrative assessments and problems therewith

-the use of contingent valuation methodology

-implications for client

Assignment:

In re Paoli, 916 F.2d 829 (3rd Cir. 1990) (reserve); In re Tutu Wells Contamination Litigation, 909 F. Supp. 991 (D.V.I. 1995);GAO Report, Superfund: Outlook for and Experience in Natural Resource Damage Settlements (find at "http://frwebgate.access.gpo.gov/cgi-bin/multidb.cgi") - browse related reports if interested

March 4 Spring Break

March 11

IX. So you aren't a PRP, yet - avoiding future liability (the preventive approach)

A. Avoiding liability due to contamination on newly purchased property

(Trying to fit under the exception of acts or omissions of an unrelated third party)

-requirement of investigation

-doing a pre-purchase investigation

-phase 1 and phase 2

-contracts limiting liability (remaining liability)

B. Avoiding liability due to contamination caused by your own actions

-total quality environmental management (TQEM)

*-What about insurance?* - major issues in hazardous waste litigation

C. Reality Check - When do you investigate, report, and move forward

-What is your duty to investigate and report

-ethical issues

Assignment: Dixon article (handout); Mack article (handout); Henderson article "Send me a copy of your phase I" (handout); See if you can find the EPA's policy on disclosure of information from voluntary audits on the internet (www.epa.gov/)

March 18

*The evolution of a hazardous waste case: The Fort Valley Litigation and Settlement*

guest lecture, GSU law alumna William A. Pannell, P.C.

Assignment: to be announced

March 25

X. State Equivalents to CERCLA - the New Jersey Model and Georgia HSRA

-differences with the National Model

-concurrent agreements

X. Particular Issues; The Future of CERCLA

A. Brownfields

-Relation to urban decay and re-development

-the Brownfields model

-agency and state responses

Assignment: Whitman, pp. 263-284; Read Georgia Code Sec. 12-8-90 to 12-8-97 (note supplement and amendments); "Proposals to remove Barriers to Brownfield redevelopment", GAO report -March 1997(handout); Georgia Hazardous Site Re-use and re-development act,Georgia Code Secs. 12-8-200 - 12-8-208

Also, go to "http://www.epa.gov/brownfields/" and be prepared to discuss at least one "pilot project" and your critique of said project (what is good and what is bad).

April 1

B. Future of CERCLA - political changes?

-How dangerous are hazardous waste sites?

-How clean is clean?

-Politics - potential changes

Assignment: "Superfund - information on current health risks", GAO report - July 1995(handout); "Superfund - Half the Sites Have all Clean-up remedies in place," GAO report - July 1999 (handout)

XI. RCRA

- "cradle to grave" regulation

-compliance work

-relation to CERCLA

-state plans and changes

-"ban" on ground disposal

Assignment: Whitman, pp. 40-43; Read 42 U.S.C. Secs. 6921-6925, 6928, 6947, 6943, 6973; (also read table of contents of entire RCRA legislation); 42 U.S.C. Sec. 9607(k); "EPA's Guidance on he Use of Sec. 7003 (section III) at "http://es.epa.gov/oeca/osre/971020.html"

April 8

XI. RCRA cont.

-the power of EPA rulemaking and interpretation revisited

-what is a hazardous waste, extent of administrative determination

-The special case of underground storage tanks and their regulation

-the technology of underground storage tanks

XII. EPCRA

Assignment: E.D.F. v. City of Chicago, 114 S.Ct. 1588 (1994) (reserve); Read 42 U.S.C. Secs. 6991-6991e.; 42 U.S.C. 11001 et seq.; Read Georgia Code Secs. 12-13-1 et seq.; "Georgia UST Regulations Update" (handout); "Straight Talk on Tanks" - EPA, July 1995 (handout);

Look up hazardous waste inventory web site (http://www.scorecard.org/) (be able to identify a hazardous waste site in Atlanta)

April 15

XIII. Siting Hazardous Waste Facilities and "non-hazardous" landfills

-state and local attempts to control siting and transport

-Nimbyism

-environmental equity/justice and EPA permitting of sites

-what about landfills and landfill siting

Assignment: Shortlidge and White, "The Use of Zoning . . . for siting . . . hazardous waste Facilities" (handout);Toft, "Site Selection for Hazardous Waste Facilities" (handout); Read Georgia Code 12-8-100 through 12-8-103; Read Massachusetts Code Annotated 21D, Secs. 1-19; Read 42 U.S.C. Sec. 6942; Robert Jackson excerpt from research paper on "Landfill Siting in Georgia" (handout); look up current EPA policy on environmental justice (particularly as it relates to Title VI) at: http://www.epa.gov/swerosps/ej/index.html

April 22

Other current issues, Summary, Questions, and brief review session

Assignment: Please bring in a relevant newspaper or other article for discussion and questions in class. Be prepared to discuss the article.