LaGrange, Town of and Civil Service Employees Association, Inc.

In the matter of the fact-finding between the Town of LaGrange, employer, and the Civil Service Employees Association, Inc., union. PERB case no. M2010-241. Before: Richard M. Gaba, Esq., Fact Finder

Generally Illegal: NPDES General Permits under the Clean Water Act

Under the Clean Water Act, it is unlawful for a point source to discharge pollutants without a National Pollutant Discharge Elimination System (“NPDES”) permit. Most NPDES permits are issued to individual facilities, but since 1979, EPA and States have had a process of issuing “General Permits” to satisfy the requirements of the Clean Water Act. These General Permits may contain enforceable effluent limitations and other requirements, but, unlike individual permit, they may apply to large numbers of sources discharging into many different bodies of water. The conditions of a General Permit are developed through a “notice and comment” process similar to development of a regulation, but the application of the General Permit to an individual source differs dramatically from the process of issuing an individual NPDES permit. Sources seeking coverage under a General Permit generally need only submit a “Notice of Intent” to the permit authority, and they are then authorized to discharge under the terms of the General Permit without either government review or public participation. EPA has stated over 300 General Permits have been issued by EPA and states, and that “thousands” of point sources have been covered through General Permits. The Clean Water Act provides no special provisions applicable to the issuance or content of General Permits; they are subject to the same substantive and procedural obligations that are applicable to all NPDES permits. The use of General Permits to satisfy the otherwise applicable requirements of the Clean Water Act, however, raises significant issues.This article assesses the legality of the use of General Permits to satisfy the NPDES requirement of the Clean Water Act. After discussing the history of and regulatory provisions applicable to General Permits, it discusses a series of issues raised by the use of General Permits. These include issues associated with: 1) discharges into “impaired waters,” 2) discharges into “high quality” waters under EPA’s anti-degradation policy, 3) the use of unreviewed pollution prevention plans developed by the permittee, 4) the absence of public participation in permit issuance, and 5) the requirements under other statutes including NEPA and the Endangered Species Act. The article suggests that many of EPA policies and procedures for use of General Permits violate the requirements of the Clean Water Act and suggests a variety of revisions to the General Permit program that address some of the existing infirmities

Federal Supervision of State Water Quality Standards Under the Clean Water Act

Renewed interest in an expanded role for water quality standards in the regulatory scheme has developed recently. This inter-est is due in part to the perception that the use of water quality standards is a particularly cost-effective approach to pollution control. At least in theory, water quality standards are set no higher than necessary to achieve the desired environmental goal.Further, as more and more industrial facilities achieve compliance with technology based requirements, attention has begun to focus on additional techniques including water quality standards, for imposing more stringent limitations. Finally, since states set water quality standards a regulatory scheme centered upon water quality standards may be more responsive to the concerns of the new federalism ... Part II of this Article will review the role of water quality standards in pollution control under the Clean Water Act. Part III will examine the history of federal involvement in water quality standards. Part IV will focus on three major questions relating to minimum federal water quality standards requirements under the Act: (1) the scope of an antidegradation requirement under the Act, (2) the propriety of a federally mandated minimum designated use, and (3) the standards for federal review of state established pollutant levels. This Article argues, based on the provisions and history of the Clean Water Act and the problems of federal implementation of minimum requirements, that states essentially should have a freehand in the designation of uses and that the federal role in water quality standards should be limited to enforcing a stringent antidegradation requirement and supervising the states\u27 scientific judgments in establishing pollutant levels. This policy does not mean abandonment of an effective federal program of pollution control; to the contrary, reliance on water quality standards can act to divert efforts from the essential task of continued enforcement of stringent technology based limitations. Options to water quality standards exist under the Act to augment effectively these limitations. Part V concludes with a discussion of an alternative strategy for an effective and cooperative federal-state program of water pollution control

Voir Dire of Jurors: Constitutional Limits to the Right of Inquiry into Prejudice

Although the voir dire of jurors is one of the most significant mechanisms by which an impartial jury is secured, as a practical matter the right to examine prospective jurors is not unlimited. Vested with great discretion, a trial judge may at some point constitutionally preclude inquiry into possible prejudice, but determining that point has not proved to be easy. In 1976, the Supreme Court in Ristaino v. Ross directly considered the constitutional limits to voir dire and provided a test which could serve as a guide to trial court administration of the process. The Court suggested that questioning about prejudice must be allowed only in situations where there is some “nexus” between the prejudice feared and the issues likely to arise at trial. In reaching this conclusion the Supreme Court made significant departures from prior analyses of voir dire. Not only did the Court establish an extremely narrow constitutional right to inquire into prejudice, but by focusing on the issues at trial, rather than the prejudice of the venire-people, it demonstrated an extraordinary tolerance with prejudice among the jurors who decide a case.Determination of the constitutional limits to voir dire and the right to an impartial jury involves a complex amalgam of competing interests, but at bedrock rest certain assumptions about the nature and operation of human prejudice. In Ross, those interests and assumptions led to several basic conclusions. First, the racial identity of the parties will not be sufficient, in and of itself, to require that questioning into the racial prejudice of venire-people be allowed. Second, the focus for the trial court in determining whether inquiry must be allowed will be on the nature of the trial and the issues presented and not on the individuals who may act as jurors. Finally, the Court expressed concern with factors that will intensify any prejudice held by jurors and increase the likelihood that their function as fact finders will not be adequately performed

Environmental Ethics and Our Moral Relationship to Future Generations: Future Rights and Present Virtue

A central issue in environmental ethics is characterization of our “moral relationship” to future generations. What, if any, obligations do we owe to the future? How should our present actions be influenced by their impact on the future? The purpose of this article is to characterize and hopefully clarify certain aspects of this “moral relationship.” First, the article identifies those distinctive qualities that distinguish a moral analysis of our relationship to future generations from the moral analysis that will apply to an assessment of our actions on our own generation. It suggests that the issue of our moral relationship to future generations has a distinct component only for those actions that have irreversible consequences that will be experienced more than two generations in the future. Actions with shorter term consequences may be properly seen as raising the same concerns that apply to disputes among existing humans. Second, the article evaluates our moral relationship to future generations in terms that are familiar in Western ethical thought. For many, this moral relationship should be analyzed in terms of “rights” and “obligations” - moral claims that the future somehow makes on us. There are substantial conceptual and technical problems in evaluating our moral relationship to the future in rights-based terms. Furthermore, the outcome of a rights-based approach can be a set of proposed rights and obligations that are not meaningful guides for present decisions. Finally, and most importantly, the article suggests that our moral relationship to future generations may best be viewed, not in terms of rights and obligations, but through reliance on “virtue ethics.” Our concern for the future can be seen as an expression of the principle of benevolence and a recognition of the dignity and worth of all life. Through virtue theory, the morality of our actions are to be evaluated, not from the perspective of demands or claims that the future might be said to make on us, but rather from the recognition that our concern for the future is an expression of our best virtue. This shift in perspective has direct consequences. A focus on present virtue leads to the recognition that we must evaluate the morality of our actions in terms of our own vision of the well-being and the quality of life that we wish to see experienced in the future. It anchors the analysis of actions in the moral framework that we hold today without presuming to predict the moral and non-moral preferences of an infinite stream of future generations

The Private Causes of Action under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f)

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the causes of action exclusively apply, but the Court has left considerable confusion about the appropriate cause or causes of action in a number of other common situations. These include situations in which costs are directly incurred as an obligation under an administrative settlement or following a CERCLA civil action. This Article provides a rational approach to allocating rights of cost recovery among sections 107(a), 113(f)(1), and 113(f)(3)(B) that is consistent both with the language of CERCLA and the Supreme Court’s analysis in Cooper and Atlantic Research. First, the Article evaluates the rather unsatisfying rationales asserted by the U.S. courts of appeals for determining whether the causes of action under 107(a) and 113(f) are mutually exclusive. The Article suggests that the proper resolution focuses on whether there is textual overlap among the sections. Quite simply, in the event of textual overlap, standard canons of construction and the express text of section 113(f)(3)(B), not discussed by any of the courts of appeals, suggest that 113(f) provides the exclusive cause of action for cost recovery under CERCLA. Second, the Article evaluates the textual scope of the causes of action and whether costs incurred in a variety of common situations thus fall within the scope of 107(a)(4)(B) or 113(f). Both the specific text and the Supreme Court’s approach, particularly its focus on the “traditional” meaning of contribution, can help resolve these issues. The result of this analysis is a straightforward application of the statute that results in a consistent and coherent structure to CERCLA that both provides incentives for cleanup and helps ensure that the polluter pays

Recovering Hazardous Waste Cleanup Costs: The Private Cause of Action under CERCLA

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a broadly defined group of landowners, transporters, and generators of hazardous waste are liable for the costs of cleaning up hazardous waste sites. CERCLA provides the government with powerful tools to impose this liability. The United States Environmental Protection Agency (EPA) has the authority both to compel responsible parties to clean up the site or to clean up the site itself and recover its expenses from these parties.The government is not the only party, however, that can impose liability for hazardous waste cleanup costs. Section 107(a)(4)(B) of CERCLA provides that responsible parties are also \u27liable for . . . any other necessary costs of response incurred by any other person consistent with the national contingency plan.\u27 This new cause of action creates a significant role for private parties in the national hazardous waste cleanup effort.This Article examines issues raised by the section 107(a)(4)(B) private cause of action. Section I provides an overview of the provisions of CERCLA that are essential to understanding the issues under section 107(a)(4)(B). Section II addresses the threshold question of whether section 107(a)(4)(B) does, in fact, provide an independent cause of action for recovery of hazardous waste cleanup costs. Section III examines the requirements for asserting the cause of action. Issues examined range from standing requirements to questions of ripeness. The most difficult questions, however, may involve the requirement that private cleanups be \u27consistent with the national contingency plan.\u27 EPA\u27s recent revisions to this national cleanup plan attempt to provide some control over private cleanup efforts. Section IV discusses significant problems that may constrain parties from undertaking private hazardous waste cleanups