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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — February 1992

Articles

The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You

by James M. Mesnard and Keith A. Onsdorff

Editors' Summary: EPA and the Department of Justice are aggressively enforcing the criminal provisions of federal environmental laws. Companies and their officers are subject to large fines and jail terms if convicted. Corporate officers should be aware of a recent trend in RCRA criminal enforcement in which the Justice Department has attempted to hold corporate officers and chief executive officers criminally liable for the actions of their subordinates, even when the officers did not have actual knowledge of their employees' illegal conduct. The Justice Department has attempted to apply a theory known as the responsible corporate officer doctrine to override the knowledge requirements in RCRA's criminal liability provision. This Article traces the development of the responsible corporate officer doctrine and analyzes the Justice Department's attempt to apply the doctrine to RCRA cases. The authors observe that although the Justice Department has not been outwardly successful in advancing this approach, it may have shifted the burden of proof in RCRA cases. The authors outline what corporations and their officers can do in response to the expansion of RCRA criminal liability, and conclude that Congress should examine the issue during the upcoming RCRA reauthorization.

The European Community Environmental Legal System

by Roszell D. Hunter and Turner T. Smith

Editors' Summary: Serious environmental problems, rising environmental activism, and growing European Community (EC) power have produced important and ambitious environmental initiatives from the EC, as well as increased attention on the effective application of existing Community environmental law. The 1990 EC Commission report on the application of Community environmental law highlighted the inadequate and erratic implementation by member states of Community environmental law. As the EC moves toward an internal market without frontiers, however, Community-wide environmental law becomes increasingly important, and EC institutions attempt to tighten both EC legislation and member state implementation.

This Article outlines the anatomy of the EC and discusses the basis of EC power to adopt environmental measures. The authors first examine the EC's ability to legislate on environmental issues, the different legislative processes employed, and their effects on member states and implementation. The authors then survey the developing structure of Community environmental law by discussing and assessing the Community regulatory framework, including environmental impact assessment requirements, air protection regulation, water protection requirements, waste management legislation, chemical and dangerous substances regulation, and the quickly evolving civil liability regime in the Community. The authors conclude that Community law cannot be regarded independently of member state law and that growth of the Community environmental framework will continue as the EC moves toward the ideals of an internal common market.

Dialogue

Industrial Privatization and the Environment in Poland

by Ruth Greenspan Bell

Privatization — the transfer of state owned and managed enterprises into the hands of the private sector — is a central task for the emerging democracies of Central and Eastern Europe. This process, which requires the untangling of 45 years of state control and management, is even more difficult than was earlier imagined because of the parallel legacy of 45 or more years of environmental neglect.

Poland, the largest of the Central European countries, has embarked on an ambitious privatization program. Beginning just over 18 months ago, Polish authorities have leased an estimated 70 to 80 percent of the country's small retail and commercial businesses to private individuals. Any visitor to Poland is keenly aware of the explosion of private sector activity as existing shops that have moved into private hands adapt to consumer needs, and new shops open with an increasing variety of goods.

Should Taxpayers Pay the Cost of Superfund?

by Matthew F. Lintner and Rena I. Steinzor

Throughout the history of the Superfurnd program,1 potentially responsible parties (PRPs) have searched for ways to distribute the costs of cleanup as broadly as possible. PRPs look high and low for deep pockets in their attempts to spread the pain, and the ensuing litigation makes no one but Superfund lawyers happy. Until recently, PRPs focused their efforts on other industrial PRPs and their insurance companies. In the last two years, however, PRPs have begun to focus on spreading Superfund costs to the deepest pocket of all: the nation's taxpayers.

The extraordinarily broad liability scheme of the Superfund statute is being used to involve local governments across the country, and through them the general taxpayers, in costly defenses to third-party Superfund lawsuits. PRPs are asserting liability against local governments for the generation or the transportation of municipal solid waste (MSW), including ordinary garbage and sewage sludge, which was sent to what later became a Superfund site, and courts are allowin the suits to proceed. This tactic could shift potentially billions of dollars in cleanup costs to taxpayers.