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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 1988

Articles

Jury Trial Rights Under CERCLA: The Effects of Tull v. United States

by Evan Slavitt

Editors' Summary: One of the landmark environmental decisions handed down by the Supreme Court in recent years is Tull v. United States, holding that defendants have a right to a jury trial to determine liability for government-sought civil penalties. The decision is based on the Constitution's Seventh Amendment, and so is probably more permanent than an opinion based on statutory interpretation, which the Environmental Protection Agency could seek statutory amendments to effectively reverse. By and large, the government will have to live with the Tull decision, especially since the Supreme Court was unanimous in its core holding. Consequently, the Tull case has wide-ranging implications for the way the Environmental Protection Agency conducts its civil Penalty enforcement, as analyzed in the August 1987 issue of ELR (17 ELR 10304). It also has implications for EPA's Superfund program, which present fundamentally different legal issues. In this Article, the author explores the effects of Tull on the Superfund program, concluding that though jury trials will not be required in government actions to recover response costs or to obtain injunctive relief, jury trials are constitutionally required in actions to impose civil penalties and, probably, to recover for natural resource damages under Superfund.

Health Effects of Hazardous Waste: The Expanding Functions of the Agency for Toxic Substances and Disease Registry

by Barry L. Johnson

Editors' Summary: One of the most important participants in the Superfund scheme is the Agency for Toxic Substances and Disease Registry. Established in 1980 pursuant to CERCLA, the ATSDR evaluates the potential health problems caused by individual NPL sites and analyzes the health effects of numerous substances subject to Superfund cleanup. Dr. Johnson, Associate Administrator of the ATSDR, describes his agency's various functions, its plans for future activities, and how it is adapting traditional public health methods of disease prevention and control to meet the unique challenge posed by hazardous substances in the environment.

Dialogue

A Citizen's View of Gwaltney

by Ann Powers

Editors' Summary: In last month's issue, Jeffrey G. Miller analyzed Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., where the United States Supreme Court ruled that plaintiffs in FWPCA §505 citizen suits must make a good faith allegation of ongoing or intermittent violation. Professor Miller suggested that Gwaltney leaves so many important questions unresolved that it constitutes an "invitation to the dance of litigation." This month, we asked practicing attorneys actively involved in citizen suit litigation to give us their views of Gwaltney. The two Dialogues below consider what Gwaltney may mean for citizen-plaintiffs on the one hand, and industry defendants on the other. The authors of the two pieces offer different interpretations of some aspects of the Court's opinion, and recommend arguments and strategies for parties to pursue. The contrast between the two Dialogues foretells some of the issues and arguments that will comprise the "dance" in FWPCA citizen suits.

Arguing for the Defense After Gwaltney

by Scott W. Clearwater and Scott M. DuBoff

Editors' Summary: In last month's issue, Jeffrey G. Miller analyzed Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., where the United States Supreme Court ruled that plaintiffs in FWPCA §505 citizen suits must make a good faith allegation of ongoing or intermittent violation. Professor Miller suggested that Gwaltney leaves so many important questions unresolved that it constitutes an "invitation to the dance of litigation." This month, we asked practicing attorneys actively involved in citizen suit litigation to give us their views of Gwaltney. The two Dialogues below consider what Gwaltney may mean for citizen-plaintiffs on the one hand, and industry defendants on the other. The authors of the two pieces offer different interpretations of some aspects of the Court's opinion, and recommend arguments and strategies for parties to pursue. The contrast between the two Dialogues foretells some of the issues and arguments that will comprise the "dance" in FWPCA citizen suits.