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Issue

Volume 27, Issue 9 — September 1997

Articles

Using Generator Knowledge to Characterize Waste Under RCRA: Gambling on the Use of "Unacceptable" Knowledge

by Caroline B. Buenger

Editors' Summary: A generator may use its knowledge of processes and materials to determine whether a waste must be managed as hazardous waste. This is generally referred to as using "process" or "generator" knowledge to characterize a waste. A generator may determine how the waste should be treated and disposed under the RCRA land disposal restrictions by using "acceptable" knowledge. Using process knowledge to characterize a waste and acceptable knowledge to determine a waste's fate under the land disposal restrictions is less time-consuming and more cost efficient than testing. However, the regulations provide only general statements as to what is sufficient to document waste characterization or treatment and disposal based on a generator's knowledge. Further, courts have not yet dealt with sufficient number of cases to help define a legal standard for process or acceptable knowledge. This paper reviews the regulations governing the use of process knowledge under 40 C.F.R. § 262.11 and acceptable knowledge under 40 C.F.R. § 268.7. The limited case law is also reviewed. The paper outlines some of the risks a generator may encounter suggests some alternatives that may help lessen these risks, and proposes methods to define a workable standard for relying on process or acceptable knowledge.

American Telephone & Telegraph Co. v. Compagnie Bruxelles Lambert: A New Line of Defense for Parent Corporations

by Steven F. Baicker-McKee

Editors' Summary: With their often substantial assets, parent corporations make attractive targets for parties seeking to remedy environmental harm. However, by challenging a court's jurisdiction over the parent, the parent may force a change of forum or, ultimately, a dismissal ofthe claims. This Article examines the scope of a parent's liabilities for the actions of its subsidiaries and discusses the jurisdictional issues. The author surveys several district court cases that involve challenges to personal jurisdiction and analyzes the Ninth Circuit's decision in American Telephone & Telegraph Co. v. Compagnie Bruxelles Lambert. He concludes that contesting personal jurisdiction may be a useful strategy for corporations that are sued for the environmental liabilities of theiir subsidiaries.

Dialogue

The Challenge of Achieving Sustainable Development Through Law

by Kenneth L. Rosenbaum

Five summers ago in Rio de Janeiro, world leaders gathered at the United Nations Conference on Environment and Development (UNCED) and committed themselves to the pursuit of sustainable development.1 As part of that commitment, they signed an impressive array of agreements, including the Forest Principles, the Convention on Biodiversity, the Convention on Climate Change, and Agenda 21.

Reliance on these international legal tools suggests that world leaders hope the world can achieve sustainable development through law. In fact, law is an awkward tool for promoting sustainable development. This Dialogue explores why and offers some challenges to attorneys, judges, and lawmakers who hope to promote sustainable use of the world's resources.