Chapter 19 – Environmental Regulation
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Disposed Of,” Wall Street Journal, December 15, 1988.
H. Toxic and Hazardous Substances
Emphasize:
That the control of toxic substances ranks first on the public’s list on where the
government’s regulation of industry is needed.
That the control of toxic chemicals may be divided into regulation of their use,
regulation of their disposal, and regulation of their cleanup.
The Problem
Discuss:
The most dangerous threat to human welfare: toxic substances.
That there are more than 70,000 industrial agricultural chemical compounds are in
commercial use already, and new chemicals, a significant percentage of which are
toxic, are being introduced in the marketplace at the rate of over 1,000 substances
annually.
of potentially toxic chemicals before they become economically important.
That manufacturers must report to the EPA any information they possess indicating
that a chemical substance presents a “substantial risk” of injury to health or the
environment. The EPA must also be given advance notice before the manufacture of
new chemical substances.
nation’s environment.
That the Resource Conservation and Recovery Act attempts to regulate the disposal
of toxic wastes through the manifest system.
Chapter 19 – Environmental Regulation
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The Superfund
substances into the environment to notify the government.
Refusal to obey can lead to a suit for reimbursement for any cleanup monies spent
from the Superfund plus punitive damages of up to triple the cleanup costs.
Liability under Superfund
Explain:
Case 19.3—“Burlington Northern and Santa Fe Railway Co. v. United States”
Reforms to Superfund
Discuss:
The three possible reforms to the superfund laws.
And take note that both the Clean Air Act and the Clean Water Act also contain
provisions related to government suits to recover costs for the cleanup of toxic
chemicals.
Radiation
Discuss:
The potential hazards of radiation pollution.
That the EPA, however, does have general authority to conduct testing and provide
technical assistance in the area of radiation pollution control.
Additional Matters for Discussion:
In 2002 the EPA estimated that the amount of toxic chemicals released in the United
States dropped 9 percent between 1988 and 2000. The total released was 7.1 billion
Chapter 19 – Environmental Regulation
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pounds, 27 percent into the air, 4 percent in water, and 69 percent on the land.
According to the General Accounting Office in 2000 the government has been
spending approximately $1.4 billion annually on Superfund cleanups and private
parties have been spending about $1 billion annually. A 2001 government estimate
for toxic cleanup nationwide was $700 billion.
A 1992 Rand Institute for Civil Justice study of Superfund insurance-related payouts
showed that 79 percent of the spending of 4 insurance companies went to paying
legal bills, 9 percent went to internal administrative costs, and only 12 percent went
to covering policyholders’ environmental cleanup liabilities. See Moses, “Insurance
Payouts Over Superfund Flow to Lawyers,” Wall Street Journal, 4/24/92, p. B1.
The number of Superfund cleanups completed in fiscal years 2001 and 2002 fell 41
percent compared with the annual average from the previous eight years. It has
continued to fall since then.
Cases for Discussion:
1. Alcan Aluminum Ltd. was one of twenty alleged polluters of a certain site. Only
Alcan refused to settle with the government. Under joint and several liability the
government ordered Alcan to pay the remaining $474,000 of the $1.3 million it
would take to clean up the site. Alcan went to court.
2. Upon finding that a 16-acre site in Norwood, Massachusetts owned by Paul and John
Reardon was polluted with polychlorinated biphenyls, the EPA filed a lien on the
Reardons’ property with the appropriate registry of deeds. Lien filing is permitted
under CERCLA. The Reardons went to court.
on the lien filing. Reardon v. United States, 90-1390 (CA 1).
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3. In 1992 CA2 decided that municipalities that contributed to toxic dumpsites could be
assessed cleanup costs under the Superfund. The EPA has estimated that
municipalities are potentially liable in at least 25 percent of its 1,200 priority cleanup
sites.
4. The owners of Vineland Chemical Co. improperly disposed of water containing
arsenic.
5. Steel manufacturers producing ammonia and other hazardous wastes injected it into
deep wells from 2,500 to over 4,000 feet into the ground. The manufacturers argued
that the injections were “discharges” handled under the Clean Water Act’s state
pollution permitting rather than “disposals” regulated under RERA.
6. The chemical supplier of a wood processing plant helped build part of the plant and
furnished the plant with a toxic chemical used in wood processing. When the EPA
forced the plant owner to clean up its plant site under Superfund, the owner sued the
chemical supplier for contribution.
security interest in a fabric printing firm was not an owner or operator even though
customers of the firm made payments directly to the lender. U.S. v. Aceto
Agriculture Chemicals Corp. ruled that pesticide manufacturers that hired a pesticide
formulation facility to process their pesticides were liable for clean up costs because
they “arranged for” and “contributed to” handling and disposal of hazardous wastes.
(CA8, 4/25/89).
IV. Suits by Private Individuals
Chapter 19 – Environmental Regulation
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Discuss:
The two principal areas for the private control of private actions.
A. Citizen Enforcement
Emphasize:
Than in many instances, private citizens can sue polluters directly to force them to cease
violating the law.
On the citizen enforcement provisions of the environmental law.
Additional Matter for Discussion:
An older but interesting short handout on citizen enforcement is “Group’s Influence on
U.S. Environmental Laws Earns It a Reputation as a Shadow EPA,” Wall Street Journal,
Jan. 13, 1986, p. 50.
Cases for Discussion:
1. The plaintiff Friends of the Earth sued defendant incinerator company for allegedly
discharging illegal mercury discharge into the North Tyger River.
2. A manufacturer delayed construction of a waste water treatment facility. It was sued by
a Nader student group.
3. In Gwaltney v. Chesapeake Bay Foundation, Inc. the U.S. Supreme Court ruled that the
citizen enforcement provision of the Clean Water Act conferred no jurisdiction over
19-16
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
interpreting that case. See, e.g, Public Interest Research Group v. Carter-Wallace, Inc.,
56 LW 2621 (1988).
B. Tort Theories
Emphasize:
The various common law tort theories and how they apply to environmental harms.
Large private tort suits over alleged pollution-related harms can take a long time to
litigate and cause much community ill-will. See Harlan, “Hundreds of Businesses
Wait and Run Up Bills as Tort Case Drags On,” Wall Street Journal, 2/6/92, p. A1.
Another contentious tort suit over pollution involved Ashland Oil Co. Four residents
9/17/90, p. 1.
by 1993 see Felsenthal, “Risk-of-Illness Cases Are Getting Unsympathetic Ear from
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Courts,” Wall Street Journal, July 7, 1993, p. B8.
Cases for Discussion:
1. T & E Industries sued Safety Light Corp., a successor corporation to United States
Radium Corporation for damages arising from contamination of its property by
2. Plaintiffs sued a lead company to recover for damage to their agricultural property
from accumulations of lead particulates and sulfur oxide deposits. The circuit court
rendered judgment for the lead company, and the land owners appealed to the
Alabama Supreme Court.
3. Plaintiff Webb, a developer of a retirement village, brought suit to enjoin as a
nuisance Spur Industries’ operation of a cattle farm and feed lots. When Webb’s
initial development began, the feed lots were already in existence 3 miles away. At