Chapter Twelve Product and Service Liability Law When consumers enter a store to purchase a product, they assume that the product will do the job the manufacturer claims it will do without injuring anyone, and the consumer may not be aware that each year more than 33.4 million injuries and around 28,200 deaths result from the use of products purchased in the United States.1 Deaths, injuries, and property damage from consumer products incidents cost the nation more than $700 billion annually.2 Estimates of the number of resultant product liability cases range as high as 1 million a year. Also, the verdicts for defective-product or product liability cases are increasing from year to year. The total of the five largest awards for product defect cases in 2009 was 52 percent larger than the total in 2008. In fact, the largest award from a 2009 product defect case amounted to around $300 million, from the Philip Morris tobacco case. Also, in 2008, only 1 of the 50 largest awards were the result of a verdict in a product defect case, but in 2009, 5 of the 50 largest judgments were awarded in product defect cases.3 1 U.S. Department of Safety, http://www.yourlegalguide.com/defective-product-deaths/. 2 U.S. Consumer Product Safety Commission, www.cpsc.gov/about/about.html (accessed July 27, 2007). 3 John Cord, Product Liability Statistics & Trends, 2010. http://www.drugrecalllawyerblog.com /2010/01/product_liability_statistics_t.html. Consequently, today’s businessperson is likely to become involved in some aspect of product liability litigation. This chapter discusses the most significant aspects of this area of law, known as product liability, to help the student function as a prudent consumer and businessperson. Product liability law developed out of tort law, discussed in Chapter 10. This chapter begins by introducing the three primary theories of recovery in product liability cases and the defenses raised in such cases. These sections are followed by an introduction to enterprise liability, a concept that has slightly broadened the potential reach of product liability cases. Closely related to product liability is service liability, discussed in the next-to-last section. The final section discusses global implications of product liability law.Critical Thinking About The Law Manufacturers owe a certain responsibility to consumers. Consumers should be able to reasonably use a product without its causing harm to them or others. After you read the following scenario, answer the critical thinking questions that will enhance your thinking about product liability law. Katherine purchased a can of hair spray from her local drugstore. When she removed the cap from the hair spray can, the can exploded in her hands. She suffered third-degree burns on her hands and face and was unable to work for three months. Katherine sued the hair spray manufacturer after she discovered that another woman had suffered an identical accident when using the same brand of hai.

1. Chapter Twelve Product and Service Liability Law
When consumers enter a store to purchase a product, they
assume that the product will do the job the manufacturer claims
it will do without injuring anyone, and the consumer may not be
aware that each year more than 33.4 million injuries and around
28,200 deaths result from the use of products purchased in the
United States.1 Deaths, injuries, and property damage from
consumer products incidents cost the nation more than $700
billion annually.2 Estimates of the number of resultant product
liability cases range as high as 1 million a year. Also, the
verdicts for defective-product or product liability cases are
increasing from year to year. The total of the five largest
awards for product defect cases in 2009 was 52 percent larger
than the total in 2008. In fact, the largest award from a 2009
product defect case amounted to around $300 million, from the
Philip Morris tobacco case. Also, in 2008, only 1 of the 50
largest awards were the result of a verdict in a product defect
case, but in 2009, 5 of the 50 largest judgments were awarded in
product defect cases.3
1 U.S. Department of
Safety, http://www.yourlegalguide.com/defective-product-
deaths/.
2 U.S. Consumer Product Safety
Commission, www.cpsc.gov/about/about.html (accessed July 27,
2007).
3 John Cord, Product Liability Statistics &
Trends, 2010. http://www.drugrecalllawyerblog.com
/2010/01/product_liability_statistics_t.html.
Consequently, today’s businessperson is likely to become
involved in some aspect of product liability litigation. This
chapter discusses the most significant aspects of this area of
law, known as product liability, to help the student function as a
prudent consumer and businessperson.
Product liability law developed out of tort law, discussed
in Chapter 10. This chapter begins by introducing the three

2. primary theories of recovery in product liability cases and the
defenses raised in such cases. These sections are followed by an
introduction to enterprise liability, a concept that has slightly
broadened the potential reach of product liability cases. Closely
related to product liability is service liability, discussed in the
next-to-last section. The final section discusses global
implications of product liability law.Critical Thinking About
The Law
Manufacturers owe a certain responsibility to consumers.
Consumers should be able to reasonably use a product without
its causing harm to them or others. After you read the following
scenario, answer the critical thinking questions that will
enhance your thinking about product liability law.
Katherine purchased a can of hair spray from her local
drugstore. When she removed the cap from the hair spray can,
the can exploded in her hands. She suffered third-degree burns
on her hands and face and was unable to work for three months.
Katherine sued the hair spray manufacturer after she discovered
that another woman had suffered an identical accident when
using the same brand of hair spray. The jury awarded Katherine
$750,000 in compensatory damages.
1. Katherine’s lawyer described a previous case in which an
individual was injured because a product exploded. Two years
earlier, a woman walking down a row of hair care products in a
supermarket had been injured when three cans of hair spray
spontaneously exploded. She lost her sight because of the
explosion, and a jury awarded her $2.2 million in damages.
Katherine’s lawyer argued that because the previous woman had
been compensated, Katherine should be awarded $2 million in
damages for her injuries. Do you think the earlier case is similar
enough to Katherine’s case for Katherine to recover damages?
Why?
Clue: How are the cases similar and different? How does the
fact that Katherine purchased the product affect your thinking
about the earlier case?
2. The manufacturer argued that because it places a warning on

3. the hair spray cans, it is free from responsibility for injury. The
can states, “Warning: Flammable. Contents under pressure.”
The jury, however, ruled in favor of Katherine. What ethical
norm seems to have shaped the jury’s thought?
Clue: Study the list of ethical norms in Chapter 1. The
manufacturer argued that it should not have to assume
responsibility because the can has a warning. What ethical norm
is consistent with offering greater protection for the consumer?
3. What additional information about this case would make you
more willing to state your own opinion about the situation?
Clue: What information about the product would change your
thinking about the responsibility of the manufacturer? For
example, suppose that Katherine discovered that an identical
accident had occurred with the same brand of hair spray. How
might knowing the date that the similar accident occurred
influence your thinking about Katherine’s case?
Theories of Recovery in Product Liability Cases
Product liability law developed out of tort law. A glance at the
three primary theories of recovery in product liability cases—
negligence, breach of warranty, and strict product liability—
reveals a relationship between product liability and tort law. A
plaintiff usually brings an action alleging as many of these three
grounds as possible.
Negligence
Plaintiffs in product liability cases have traditionally used
theories of negligence. To be successful, the plaintiff must
prove the elements of negligence explained in Chapter 11: (1)
that the defendant manufacturer owed a duty of care to the
plaintiff, (2) that the defendant breached that duty of care, (3)
that this breach of duty caused the plaintiff’s injury, and (4)
that the plaintiff suffered actual, compensable injury.
The Privity Limitation
An early problem with using negligence to recover for an
injury caused by a defective product was establishing duty.
Originally, a plaintiff who was not the purchaser of the
defective product could not establish a duty of care and, thus,

4. could not recover. This limitation was based on the concept
of privity, which means that one is a party to a contract. In the
earliest known product liability case, Winterbottom v.
Wright,4 the British court in 1842 established the rule that to
recover for an injury caused by a defective product, the plaintiff
must establish privity. In other words, before a manufacturer or
seller of a defective good could owe a duty to the plaintiff, the
plaintiff must have purchased that good directly from the
defendant who manufactured it. Because plaintiffs rarely
purchase goods from the manufacturer, few such suits were
initially brought.
4 152 Eng. Rep. 402 (1842).
Gradually, especially in cases of defective food, courts began to
eliminate the privity requirement, essentially abolishing it in
the 1916 case of MacPherson v. Buick Motor
Co.5 In MacPherson, the court held the remote manufacturer of
an automobile with a defective wheel liable to the plaintiff
when the wheel broke and the plaintiff was injured. Judge
Cardozo stated that the presence of a sale does not control the
duty; if the elements of a product are such that it is harmful to
individuals if negligently made, and if the manufacturer knows
that the product will be used by someone other than the
purchaser, then “irrespective of contract, the manufacturer of
this thing is under a duty to make it carefully.” The holding in
the MacPherson case, which was quickly followed by similar
holdings in other states, eliminated the privity requirement,
thereby allowing a negligent manufacturer to be held
responsible for a defective product that caused injuries to
someone with whom the defendant manufacturer had no
contract.
5 217 N.Y. 382, 111 N.E. 1050 (1916).
Eradication of the privity requirement and the subsequent
increase in the liability of producers and sellers reflected a shift
in social policy toward placing responsibility for injuries on
those who market a product that could foreseeably cause harm if
proper care were not taken in its design, manufacture, and

5. labeling. Increasingly, the courts indicated that defendants
should be responsible for their affirmative acts when they knew
that such actions could cause harm to others. Also, because the
manufacturer and seller derive economic benefits from the sale
and use of the product, it seemed fair to impose liability on
them if they earned profits from a defectively made product.
Thus, abolition of the privity limitation opened the door for
negligence as a theory of liability when people were injured
because of a product manufacturer’s or seller’s lack of care. A
number of negligent acts or omissions typically give rise to
negligence-based product liability actions; these are listed
in Exhibit 12-1. We will discuss the most common ones:
negligent failure to warn and negligent design.
Negligent Failure to Warn
Most of the negligence-based product liability actions result
from a failure to warn or inadequate warning. To bring a
successful negligence case for failure to warn, the plaintiff must
demonstrate that the defendant knew or should have known that,
without a warning, the product would be dangerous in its
ordinary use or in any reasonably foreseeable use. In
determining whether a reasonable manufacturer would have
given a warning in a particular situation, the courts frequently
consider the likelihood of the injury, the seriousness of the
injury, and the ease of warning.
Exhibit 12-1 Common Negligent Actions Leading To Product
Liability Cases
There is generally no duty to warn of dangers arising from
unforeseeable misuses of a product or from obvious dangers. A
producer, for example, need not give a warning that a sharp
knife could cut someone. Similarly, some plaintiffs have argued
that fast-food restaurants, like McDonald’s, are liable to
consumers for consumers’ obesity-related health problems,
because the restaurants failed to warn customers of the
unhealthful attributes of fast food. In Pelman v.
McDonald’s, the plaintiff alleged that McDonald’s failed to

6. warn customers of the “ingredients, quantity, qualities and
levels of cholesterol, fat, salt and sugar content and other
ingredients in those products, and that a diet high in fat, salt,
sugar and cholesterol could lead to obesity and health
problems.”6 In his decision dismissing the plaintiff’s claims
against McDonald’s, Judge Sweet specifically stated that “this
opinion is guided by the principle that legal consequences
should not attach to the consumption of hamburgers and other
fast food fare unless consumers are unaware of the dangers of
eating such food.”* Because consumers know, or reasonably
should know, the potential negative health effects of eating fast
food, the plaintiff’s claim was dismissed. But if future plaintiffs
can allege that McDonald’s food is dangerous in a manner not
known to consumers, their claims may survive.
6 237 F. Supp. 2d 512 (S.D.N.Y. 2003).
A defendant may give a warning in a manner not clearly
calculated to reach those whom the defendant should expect to
use the product. If the product is to be used by someone other
than the original purchaser, the manufacturer is generally
required to put some sort of warning on the product itself, not
just in a manual that comes with the product. If children or
those who are illiterate are likely to come into contact with the
product and risk harm from its use, picture warnings may be
required.
Products designed for intimate bodily use, especially drugs and
cosmetics, often give rise to actions based on negligent failure
to warn because the use of these products frequently causes
adverse reactions. When a toxic or allergic reaction causes harm
to the user of a cosmetic or an over-the-counter drug, many
courts find that there is no duty to warn unless the plaintiff
proves that (1) the product contained an ingredient to which an
appreciable number of people would have an adverse reaction;
(2) the defendant knew or should have known, in the exercise of
ordinary care, that this was so; and (3) the plaintiff’s reaction
was due to his or her membership in this abnormal group.7
7 W. Page et al., Prosser and Keeton on Torts (5th ed.) (St.

7. Paul, MN: West, 1984), 687.
Other courts, however, determine negligence by looking at the
particular circumstances of the case and by weighing the
amount of danger to be avoided against the ease of warning. For
example, in a 1995 case against McNeil Consumer Products
Company, a jury awarded more than $8.8 million to a man who
suffered permanent liver damage as a result of drinking a glass
of wine with a Tylenol capsule. Although the corporation had
known for years that combining a normal dose of Tylenol with a
small amount of wine could cause massive liver damage in some
people, the company failed to put a warning to that effect on the
label. The jury did not accept the company’s argument that the
reaction was so rare that no warning was necessary.8
8 Benedict v. McNeil Consumer Products Co., 1992 WL 729052
(L.R.P. Jury).
Marketing of prescription drugs is unique because the
manufacturer almost never communicates directly with the user;
instead, it communicates with the physician who prescribes the
drug. In these cases, the courts generally hold that drug
manufacturers have a duty to provide adequate warnings to
physicians to enable them to decide whether to prescribe the
drug or disclose the risk to the patient. The manufacturer must
warn the physician of any chance of a serious adverse reaction,
no matter how small. Prescription drugs are frequently the
subject of product liability cases, as described in Exhibit 12-2.
Product
Case Status and Legal Claims
Avandia (prescription drug used to control blood sugar in Type
II diabetics)
In May 2007, the New England Journal of Medicine released a
study linking Avandia to a greatly increased risk of heart attack
or heart-related death. The Food and Drug Administration
(FDA) put out a safety alert and more research is being done on
the safety of Avandia. The first law-suit as a result of this new
information was filed in June 2007 and experts expect more to
follow. As of May 2010, Avandia manufacturers made a $60

8. million settlement to end approximately 700 lawsuits;
however,this was only the first settlement Avandia
manufacturers are expected to make in regard to the drug's side
effects.
Baycol (prescription drug to lower cholesterol)
Plaintiffs reportedly experienced rhabdomyolysis, a kidney
disorder in which toxic muscle cells are released into the
bloodstream. Patients can then develop fatal organ failure.
Plaintiffs frequently bring claims of failure to warn or for a
defectively designed drug. The manufacturer voluntarily
removed Baycol from the market because of the legal claims it
had spawned. As of January 2007, the court status update
estimated that there were approximately 1,200 active cases. The
status update also indicated that the manufacturer, Bayer, has
settled 3,000-plus cases for more than $1.1 billion.
Fen-Phen (Redux) (drug to treat obesity)
Some patients experienced heart-valve disease after using Fen-
Phen to lose weight. In January 2004, a $3.75 billion trust was
created as a settlement between patients and the drug
manufacturer, American Home Products, to compensate patients
injured by Fen-Phen use. Under the settlement
agreement,eligible patients may be entitled to compensation,
diet drug prescription refunds, and echocardiography
screenings.
Paxil (antidepressant) (similar claims have been brought
regarding Zoloft, another antidepressant)
Patients taking Paxil reportedly had withdrawal reactions and
problems: anxiety, agitation, confusion, dizziness, fatigue,
headache, insomnia, irritability, nausea, palpitations, sweating,
sleep disturbances, sensory disturbances, tremor, and vision
distortion. As of April 2004, there were about 1,500 Paxil
withdrawal plaintiffs in more than 30 states. These cases were
consolidated into multidistrict litigation. Plaintiffs frequently
bring the following claims: intentional misrepresentation, fraud,
negligence, strict liability, and breach of warranty. Paxil has
also been linked to increased suicide risk in teens and has faced

9. many lawsuits on that front.
Prempro (prescription drug to relieve menopausal symptoms)
Researchers determined that women taking Prempro were more
likely to suffer breast cancer, stroke, heart disease, blood clots,
and dementia. After this research, the FDA approved new labels
emphasizing these increased risks; however, Prempro still
remains on the market. Approximately 6 million women had
been taking Prempro before the researchers announced the
increased health risks associated with Prempro use. The first of
the lawsuits against the manufacturer was heard in August 2006
and several suits have been found for the plaintiffs since then,
with millions in damages awarded. In one court case in 2010, a
woman was awarded $9.54 million; another case in 2007 yielded
the astounding verdict of $134 million. As of 2010, many cases
are ongoing.
Vioxx (NSAID, COX-2 inhibitor)
Vioxx is a painkiller marketed to treat pain from osteoarthritis.
Vioxx has been linked to increased risk of heart attacks and
strokes among users. In 2004, the manufacturer pulled Vioxx
from the market in response to results of an FDA study. As of
July 2007, the manufacturer still faced more than 27,000
lawsuits. A $4.85 billion fund was created by Merck, the
manufacturer, to cover those suits. Specifically, a $4 billion
fund was created to cover those who had suffered heart attacks
after using the drug, and another $850 million fund for those
who suffered strokes as a result of using the drug. As of 2010,
many lawsuits are still pending.
Zicam (over-the-counter nasal gel to remedy the common cold)
Plaintiffs contend that after using Zicam, they lost their sense
of smell and taste. Plaintiffs argue that the Zicam manufacturer
knew or should have known about the potential dangers
associated with the use of nasal medications containing zinc.
Use of zinc can cause nerve damage. Furthermore, plaintiffs
argue that the manufacturer failed to provide sufficient
warnings to the users of the products even though the side
effects of zinc compounds have been documented. In January

10. 2006, the manufacturer settled with 340 plaintiffs for $12
million.
Accutane (drug intended to treat severe acne)
Accutane is an acne medication that was used by millions of
people to treat severe acne. In 2009, it was linked to the
emergence of inflammatory bowel disease in users of the acne
drug who had had no prior health problems related to the
disease. On June 29, 2009, Hoffmann-La Roche announced a
nationwide Accutane recall. Since the June 2009 Accutane
recall, six court decisions have resulted in about $56 million in
damages being paid to users who contracted inflammatory
bowel disease from using Accutane by Roche.
Fosamax (anti-osteoporosis drug)
The Journal of Oral and Maxillofacial Surgeons released a
report in 2004 that linked Fosamax to osteonecrosis of the jaw
(ONJ). The FDA swiftly issued warnings about the drug,
distributed by Merck. ONJ causes the decay and subsequent
death of the bone matter associated with the jaw.
As a result of this health defect, the drug lost its patent
protection in 2008 and is no longer one of Merck's most
financially successful drugs. Furthermore, Merck has set aside
millions of dollars to battle dozens of lawsuits over the drug.
The suits have resulted in mistrials, and both successes and
defeats for Merck.
Zyprexa (drug to treat schizophrenia) Seroquel (antipsychotic
drug from AstraZeneca)
In 2005, it was determined that Zyprexa and Seroquel led to
severe weight gain in those who took the drugs. The pronounced
effects of the drugs associated with patients' weight put patients
in danger of contracting diabetes, among other health issues
related to weight gain. Lawmakers claim that manufacturers
refused to release prior knowledge of the weight-gain side
effect and thus improperly marketed the drug.
In 2005, the drug manufacturer Eli Lilly settled around 8,000
lawsuits, paying around $700 million to those patients affected
by Zyprexa. AstraZeneca agreed to a $520 million settlement.

11. Ortho Evra (birth-control patch)
In 2006, clinical trial results that were released linked Ortho
Evra to blood clots that could result in strokes. The drug,
manufactured and distributed by Johnson & Johnson, comes in
the form of a birth-control patch.
Lawmakers claim that Johnson and Johnson had prior
knowledge of this side effect yet did not release the information
to the public and left it out of the drug's advertising. Johnson &
Johnson settled in court for $1.25 million in 2007.
Yaz (birth control)
At least 40 lawsuits popped up in 2009 against Bayer
Pharmaceuticals because of its Yaz birth-control drug. The
lawsuits claimed that inadequate information about serious side
effects was released to the public through the marketing of the
product. These side effects include, but are not limited to, heart
attacks, stroke, gallbladder disease, and sudden death.
In fact, Yaz is the only birth control that contains both ethinyl
estradiol and drospirenone, with the latter allegedly making the
drug very dangerous. As of 2010, many of the lawsuits had been
consolidated into large class action lawsuits and are pending in
state courts from Florida to Ohio to New Jersey.
Exhibit 12-2 Prescription Drugs That Have Led To Product
Liability Claims
Initially, almost all successful product liability actions based on
negligence were for breach of the duty to warn. The range of
successful actions was so limited because people believed that
competition and an open market provided the best means for
ensuring that products will have optimal safety features.
Believers in the sanctity of the market feel that the
manufacturer’s job is to see that the purchaser is an informed
purchaser and is not deceived about the safety of a product.9
9 R. Coase, “The Problem of Social Cost,” Law and
Economics 3: 1 (1960).
Negligent Design
The foregoing attitude generally prevailed until approximately
1960, when the courts began, in a limited number of cases, to

12. impose liability based on negligence in the sale of defectively
designed products. Such liability is imposed only when a
reasonable person would conclude that despite any warnings
given with the product, the risk of harm outweighed the utility
of the product as designed. Courts have found a wide variety of
products to be negligently designed, including weed killers, gas
stations, BB guns, airplanes, and traffic signs. One example of
negligent design can be found in a 2010 case against Boston
Scientific Corp.’s Guidant unit. The corporation was sued
because it did not warn medical professionals and the United
States Food and Drug Administration that some of the
implantable heart defibrillators it was producing would short-
circuit. The short-circuiting defects resulted in the deaths of
many patients who had the medical device implanted.
Furthermore, company officials had been aware of the defects
for at least three years but refused to disclose the information.
The corporation pled guilty and agreed to a settlement of $296
million. Thus, the design of the product was considered faulty,
as the resulting deaths could have been prevented through the
disclosure of the defects and spending resources on
modifications and further testing.
In bringing an action for negligence in design, a plaintiff must
generally prove that the product design (1) is inherently
dangerous, (2) contains insufficient safety devices, or (3)
consists of materials that do not satisfy standards acceptable in
the trade.
Usually an action for product liability based on negligence is
accompanied by a strict liability claim, which is easier to prove.
With the growing use of strict liability and the broad range of
defenses to negligence, negligence has become less important as
a theory of liability.
Negligence per se
As stated in Chapter 11, violation of a statutory duty is
considered negligence per se. This concept is used in
negligence-based product liability cases.
When a statute establishes product standards, the manufacturer

13. has a duty to meet those standards. A manufacturer that does
not meet those standards has breached its duty of care. As long
as the plaintiff can establish that the breach of the statutory
duty caused injury, the plaintiff can recover under a theory of
negligence per se.
Statutes that might be violated and lead to negligence per se
actions include the Flammable Fabrics Act of 1953; the Food,
Drug, and Cosmetics Act of 1938; and the Hazardous
Substances Labeling Act of 1960.
Applying the Law to the Facts . . .
Let’s say that Rachel bought a sweater made of wool along with
a mix of other materials. Rachel went to a bonfire with her
friends and a small spark from the fire landed on her sweater,
immediately causing it to burst into flames. If the manufacturer
of Rachel’s sweater did not comply with the duties laid out in
the Flammable Fabrics Act, what action could Rachel take
against the sweater manufacturer? What would she need to
prove to win her case?
Defenses to a Negligence-Based Product Liability Action
All of the defenses discussed in the negligence section
of Chapter 11 are available in product liability cases based on
negligence. Remember that the plaintiff’s own failure to act
reasonably can provide a defense. Depending on the state in
which the action is brought, the plaintiff’s negligence will allow
the defendant to raise the defense of contributory, modified
comparative, or pure comparative negligence. If contributory
negligence is proved, the plaintiff is barred from recovery. In a
state where the defense of pure comparative negligence is
allowed, the plaintiff can recover for only that portion of the
harm attributable to the defendant’s negligence. In a state that
follows modified contributory negligence, the plaintiff can
recover the percentage of harm caused by the defendant as long
as the jury finds that the plaintiff’s negligence was responsible
for less than 50 percent of the harm. So, if a jury finds the
defendant to be responsible for 60 percent of the plaintiff’s
harm, the plaintiff could recover nothing in a contributory

14. negligence state, but could recover damages for 60 percent of
his or her injuries in a modified or pure comparative negligence
state. If the defendant were only 40 percent responsible,
however, the plaintiff would be able to recover 40 percent of his
or her injuries only in the pure comparative negligence state and
nothing in the other two.
Another defense available in product liability cases based on
negligence is assumption of the risk. A plaintiff is said to
assume the risk when he or she voluntarily and unreasonably
encounters a known danger. If the consumer knows that a defect
exists but still proceeds unreasonably to make use of the
product, he or she is said to have voluntarily assumed the risk
of injury from the defect and cannot recover.
In deciding whether the plaintiff did indeed assume the risk, the
trier of fact may consider such factors as the plaintiff’s age,
experience, knowledge, and understanding. The obviousness of
the defect and the danger it poses are also relevant factors. If a
plaintiff knows of a danger but does not fully appreciate the
magnitude of the risk, the applicability of the defense is a
question for the jury. In most cases, an employee using an
unsafe machine at work is not presumed to have assumed the
risk, because most courts recognize that the concept of
voluntariness is an illusion in the workplace. Earlier, however,
employees attempting to sue manufacturers of defective
machines for injuries at work were defeated by this defense.
In many states, misuse of the product is raised as a defense in
negligence- based product liability cases. To constitute a valid
defense, such misuse must be unreasonable or unforeseeable. A
defendant raising the defense of product misuse is really
arguing that the harm was caused not by the defendant’s
negligence but by the plaintiff’s failure to use the product in the
manner in which it was designed and intended to be used.
Statutory defenses are also available to defendants. To ensure
that there will be sufficient evidence from which a trier of fact
can make a decision, states have statutes of limitations that
limit the time within which all types of civil actions may be

15. brought. In most states, the statute of limitations for tort
actions, and thus for negligence-based product liability cases, is
two to four years from the date of injury. Maine, however, has a
six-year statutes of limitations. Kentucky, Louisiana, and
Tennessee are the only states with one-year statutes of
limitations. If the injured party is a minor, the statute of
limitations does not start running until the injured party reaches
age 18.
statute of limitations
A statute that bars actions arising more than a specified number
of years after the cause of the action arises.
States also have statutes of repose, which bar actions arising
more than a specified number of years after the product was
purchased. Statutes of repose are usually …
1. Explain in detail three problems caused by illegal border
activity that threatens U.S. interests, and explain how each
compromises our physical security. Provide the details in the
form of:
a. Problem statement
b. Current solutions
c. Risk mitigation: With the goal of protecting people and
property in mind, what are the potential risk mitigation
solutions for each problem?
2. Describe the risk assessment technique used to mitigate the
consequences.
3. When does the Department of Homeland Security's U.S.
Customs and Border Protection’s (CBP) Office of Field
Operations (OFO) collect biometric data (e.g., fingerprints and
digital photographs)?
Chapter Twenty Two Environmental Law
As previous chapters have demonstrated, this country has often
turned to the government to solve problems created by business

16. enterprises. Early in the history of our nation, people
recognized that certain problems, such as monopolization and
labor strife, were national in scope and required a national
solution.
Unfortunately, we did not exercise the same degree of foresight
in thinking about protecting our physical environment. We
looked at our smokestack industries with pride and saw them as
symbols of our great productivity and technological advances.
People did not fully appreciate that the billowing smoke was
making the air less healthful to breathe and that the industrial
sewage dumped into rivers was killing or contaminating many
forms of aquatic life. The demands placed on nature to serve as
a garbage disposal grew ever greater.
Some people eventually started to realize that pollution was a
negative externality. It was a cost of the product not paid for by
the manufacturers in their costs of production or by consumers
in the purchase price. Rather, its costs were being imposed on
the community, as community members were forced to breathe
dirty air and to fish and swim in impure water. People who had
the misfortune of living in industrialized areas were paying
even higher costs than were people in rural areas through
pollution-related diseases and discomfort. These costs not only
were being borne by those who did not use or manufacture
the products whose production caused the pollution but also, in
many cases, were higher than the cost of preventing the
pollution in the first place.
During the late 1960s, environmental problems became a major
national concern, which led to the enactment of legislation to
protect the environment and clean up existing problems. This
chapter first examines alternatives to the regulatory approach
for solving pollution problems and examines the primary agency
responsible for enforcing environmental laws, the
Environmental Protection Agency. Next we discuss the primary
direct regulations designed to protect the environment, followed
by an overview of the Pollution Prevention Act of 1990. The
global dimensions of environmental protection are discussed

17. last.Alternative Approaches to Environmental ProtectionTort
Law
Torts are injuries to one’s person or property. Pollution injures
citizens and their property. Our first attempts to regulate
pollution were through the use of tort law, in particular, through
the use of the tort of nuisance. A nuisance is an unreasonable
interference with someone else’s use and enjoyment of his or
her land. If a factory were emitting black particles that settled
on a person’s property every day, depositing a layer of dirt on
everything in the vicinity, that person might bring an action
based on nuisance. He or she would be asking the court to
enjoin the emission of the particulates. Before the tort of
nuisance was used in attempts to stop pollution, an injunction
was always granted when a nuisance was found. Nuisance,
therefore, would appear to be the perfect solution to the
problem of pollution. The following classic case, however,
demonstrates why actions claiming the tort of nuisance are
ineffective.
nuisance
An unreasonable interference with someone else’s use and
enjoyment of his or her land. Case 22-1 Boomer et al. v.
Atlantic Cement Co.
New York State Court of Appeals 257 N.E.2d 870 (1970)
Defendant Atlantic Cement Company operated a large cement
plant that emitted considerable amounts of dirt and smoke into
the air. These emissions, combined with vibrations from the
plant, caused damage to the plaintiffs, Boomer and other owners
of property located close to the plant. The plaintiffs brought a
nuisance action against the defendant, seeking an injunction.
The trial court ruled in favor of the defendants; it found a
nuisance but denied plaintiffs the injunction they sought. The
plaintiffs appealed to the intermediate appellate court, and the
judgment of the trial court was affirmed in favor of the
defendant. The plaintiffs then appealed to the state’s highest
appellate court.Judge Bergan
[T]here is now before the court private litigation in which

18. individual property owners have sought specific relief from a
single plant operation. The threshold question raised on this
appeal is whether the court should resolve the litigation between
the parties now before it as equitably as seems possible, or
whether, seeking promotion of the general public welfare, it
should channel private litigation into broad public objectives.
A court performs its essential function when it decides the
rights of parties before it. Its decision of private controversies
may sometimes greatly affect public issues. Large questions of
law are often resolved by the manner in which private litigation
is decided. It is a rare exercise of judicial power to use a
decision in private litigation as a purposeful mechanism to
achieve direct public objectives greatly beyond the rights and
interests before the court.
Effective control of air pollution is a problem presently far from
solution even with the full public and financial powers of
government. In large measure adequate technical procedures are
yet to be developed and some that appear possible may be
economically impracticable.
It seems apparent that the amelioration of air pollution will
depend on technical research in great depth, on a carefully
balanced consideration of the economic impact of close
regulation, and on the actual effect on public health. It is likely
to require massive public expenditure and to demand more than
any local community can accomplish and to depend on regional
and interstate controls.
A court should not try to do this on its own as a by-product of
private litigation and it seems manifest that the judicial
establishment is neither equipped in the limited nature of any
judgment it can pronounce nor prepared to lay down and
implement an effective policy for the elimination of air
pollution. This is an area beyond the circumference of one
private lawsuit. It is a direct responsibility for government and
should not thus be undertaken as an incident to solving
a dispute between property owners and a single cement plant—
one of many—in the Hudson River Valley.

19. The cement-making operations of defendant have been found by
the Court at Special Term to have damaged the nearby
properties of plaintiffs in these two actions. That court
accordingly found defendant maintained a nuisance and this has
been affirmed at the Appellate Division. The total damage to
plaintiffs’ properties is, however, relatively small in
comparison with the value of defendant’s operation and with the
consequences of the injunction which plaintiffs seek.
The ground for the denial of injunction, notwithstanding the
finding both that there is a nuisance and that plaintiffs have
been damaged substantially, is the large disparity in economic
consequences of the nuisance and of the injunction.
[T]o grant the injunction unless defendant pays plaintiffs such
permanent damages as may be fixed by the court seems to do
justice between the contending parties. All of the attributions of
economic loss to the properties on which plaintiffs’ complaints
are based will have been redressed.
The nuisance complained of by these plaintiffs may have other
public or private consequences, but these particular parties are
the only ones who have sought remedies and the judgment
proposed will fully redress them. The limitation of relief
granted is a limitation only within the four corners of these
actions and does not foreclose public health or other public
agencies from seeking proper relief in a proper court.
It seems reasonable to think that the risk of being required to
pay permanent damages to injured property owners by cement
plant owners would itself be a reasonably effective spur to
research for improved techniques to minimize nuisance.
The damage base here suggested is consistent with the general
rule in those nuisance cases where damages are allowed.
“Where a nuisance is of such a permanent and unabatable
character that a single recovery can be had, including the whole
damage past and future resulting therefrom, there can be but one
recovery.” It has been said that permanent damages are allowed
where the loss recoverable would obviously be small compared
with the cost of removal of the nuisance.

20. Thus, it seems fair to both sides to grant permanent damages to
plaintiffs which will terminate this private litigation.*
Reversed in favor of Plaintiff, Boomer.Critical Thinking About
The Law
In Case 22-1, the New York Court of Appeals became the third
court to find the Atlantic Cement Company guilty of committing
a nuisance against the plaintiff Boomer. At the same time, the
state’s highest court also became the third court not to grant an
injunction to halt the cement company’s pollution.
At first glance, the finding of the court and its subsequent
decision seem to contradict one another. A closer look at the
case, however, reveals that Judge Bergan, in delivering the
decision, qualified when a nuisance warrants an injunction. The
questions that follow will help you identify this qualification
and determine the primary ethical norm to which such a
qualification is tied.
1. To demonstrate your ability to follow legal reasoning, in your
own words, run down the court’s reasoning for its decision.
Clue: Do not be too narrow here. You want to identify (1) why
the court granted damages to the plaintiff and (2) why the court
did not order an injunction.
2. The court argued that granting the plaintiff monetary
damages should promote more environmentally friendly
practices on the part of businesses, because they would develop
technologies to avoid having to pay damages. What assumption
did the court make in this reasoning?
Clue: Reread the court’s reasoning. This assumption is related
to the quantitative relationship between the damages imposed on
businesses for polluting and the economic benefits of polluting
for businesses.
In Boomer, the plaintiffs technically “won” the case because
they were granted a greater remedy than the lower courts had
granted; they were granted an injunction in the event the
defendant failed to pay permanent damages within a set period
of time. They did not, however, achieve their objective, which
was to eliminate the nuisance through receipt of an injunction,

21. the traditional remedy in a nuisance action. Thus, in Boomer v.
Atlantic Cement Co., the court decided that before it would
apply the traditional nuisance remedy to stop the pollution, it
would weigh the harms resulting from the injunction against the
benefits. Because of a lack of scientific knowledge, judges at
that time did not see the true costs that the polluting behavior
was imposing on the community. Thus, a major problem with
using nuisance laws to stop pollution is that the courts will not
necessarily use their authority to issue an injunction to stop the
polluting behavior even when they find that a nuisance exists.
Nuisance actions can be and are used, but they are used
primarily as a way for plaintiffs injured by pollution to recover
damages for their losses.Negligence, an Alternative Tort
Solution
Negligence is also used at times in the fight against pollution.
Plaintiffs must establish the elements of negligence as described
in Chapter 11: duty, breach of duty, causation, and damage.
Negligence would most often be used in a case in which a
defendant’s polluting behavior harmed a plaintiff. For example,
if a defendant buried hazardous waste in the ground and the
waste seeped down into the water table, contaminating the
plaintiff’s well water and injuring the plaintiff, the plaintiff
might bring a negligence action.
Negligence actions involving hazardous materials are often
difficult to prosecute successfully, primarily because many of

22. the pollutants do not cause immediate harm. By the time the
harm occurs, it is often difficult to link the damage to the
defendant’s release of the material, making the element of
causation extremely difficult to prove. The availability of
defenses such as contributory or comparative negligence, as
well as assumption of the risk, helps weaken the effectiveness
of this tort. It also shares with nuisance the attribute of being
reactive rather than preventing pollution in the first place.
The primary method of controlling pollution today is through
direct regulation. Before we discuss the regulatory approach,
though, some additional alternatives to regulation should be
considered.Government Subsidies Approach
One such approach is the use of government subsidies. Under a
subsidy system, the government pays polluters to reduce their
emissions. Some subsidies that could be used are tax breaks,
low-interest loans, and grants for the purchase and installation
of pollution-control devices. The primary problem with this
approach is that when a subsidy is for less than 100 percent of
the cost, the firm that limits its pollutants must still pay the
difference between the actual cost and the subsidy, a cost not
borne by its competitors.Emission Charges Approach
Another approach is simply to charge the polluter a flat fee on
every unit of pollutant discharged. Each rational polluter would
theoretically reduce pollution to the point at which the cost of
reducing one more unit of pollutant is greater than the emission

23. fee. The larger the fee for each unit, the greater the motivation
of firms to reduce their emissions. Difficulties in monitoring
every discharge of the pollutant and in calculating the amount
that should be assessed for each unit of the various pollutants
are major problems with this approach. A final problem with
this approach is that it may amount to licensing a continuing
wrong. Some firms might simply pay the charges and continue
to emit pollutants that would be difficult to clean up even with
the fees collected.Marketable Discharge Permits Approach
Discharge permits provide a similar approach to pollution
control. The government would sell permits for the discharge of
various pollutants. These pollutants could be discharged only if
the polluter had the appropriate permit. Polluters would be
encouraged to reduce their emissions because this reduction
would enable them to sell their permits. This approach is
currently being attempted on a limited scale to reduce emissions
of one significant air pollutant, sulfur.
From the perspective of people wishing to reduce the total
amount of pollution emitted into the environment, the primary
advantage that this system offers over a system of charges is
that the government actually limits the total amount of pollution
through the permits; no permits will be issued once a certain
amount of emissions has been authorized. To reduce pollution,
the government can simply reduce the number of permits that it
issues. Again, however, there is the problem of monitoring the

24. pollution sources.Direct Regulation Approach
Direct regulation is the primary device currently used for
environmental protection. During the late 1970s, a
comprehensive set of regulations designed to protect the
environment and specifically to improve air and water quality
was adopted. These regulations established specific limits on
the amount of pollutants that could be discharged.
One issue that must be determined when direct regulations are
to be used is whether the standards set by the regulations are
“technology forcing” or “technology driven.” So-
called technology-forcing standards are set primarily on the
basis of health considerations, with the assumption that once
standards have been established, the industries will be forced to
develop the technology needed to meet the
standards. Technology-driven standards, in contrast, try to
achieve the greatest improvements possible with existing levels
of technology. Most of the early environmental regulations in
this country were technology forcing. In some instances, this
approach was highly successful, and impressive technological
gains were made. In other instances, sufficient technology had
not yet been developed, and we were unable to meet some rather
lofty goals.
technology-forcing standards
Standards of pollution control set primarily on the basis of
health considerations, with the assumption that once regulators

25. have set the standards, industry will be forced to develop the
technology needed to meet them.
technology-driven standards
Standards that take account of existing levels of technology and
require the best control system possible given the limits of that
technology.
Environmental regulations are enforced primarily by
administrative agencies. The judiciary is available as a last
resort to ensure that these agencies fulfill their obligations
under the law. Because the administrative agencies are staffed
by presidential appointment, the attitude of the chief executive
has a substantial impact on an agency’s behavior. Under
different administrations, federal environmental regulations
have been enforced with varying degrees of vigor.
The remainder of this chapter focuses primarily on direct
regulation as a means of protecting the environment, because
despite some minor changes in some of the environmental laws,
direct regulation is still the primary means of protecting the
environment. We will first examine the Environmental
Protection Agency, which has primary responsibility for
enforcing the direct regulations.The Environmental Protection
Agency
Like other areas of administrative law, environmental law is
primarily made up of regulations passed by a federal agency
operating under the guidance of congressional mandates. The

26. primary agency responsible for passage and enforcement of
these regulations is the Environmental Protection Agency
(EPA).
Environmental Protection Agency (EPA)
The federal agency charged with the responsibility of
conducting an integrated, coordinated attack on all forms of
pollution of the environment.
The EPA is one of the largest federal agencies, having
approximately 17,384 employees as of the year 2011. The
agency was created by executive order in 1972 to mount an
integrated, coordinated attack on pollution in the areas of air,
water, solid waste, pesticides, radiation, and toxic substances—
a rather substantial mandate for any agency. The reason for
placing control of all types of environmental problems within
one agency was to ensure that the attack on pollution would be
integrated. In other words, Congress wanted to be certain that
we would not have a regulation reducing air pollution that
simply led to increased water pollution. Unfortunately, such
integration did not occur. Within the agency, separate offices
were established for each of the areas of pollution, and there
was very little interaction between them.
Recognizing the inefficiency of the EPA’s organizational
structure, in 1993, then EPA administrator Carol Browner took
one of the first major steps toward trying to make the agency
one with a truly integrated focus. She moved all enforcement

27. actions from the various program offices into one main
enforcement office, the Office of Compliance, which has as its
primary focus “providing industry with coherent information
about compliance requirements.” The office is divided into
groups of regulators that focus on separate sectors of the
economy: energy and transportation, agriculture, and
manufacturing. Browner also created a new Office of
Regulatory Enforcement to take on the tough responsibility of
deciding which polluters would be taken to court.1
1 P. Wallach and D. Levin, “Using Government’s Guidance to
Structure Compliance Plan,” National Law Journal, S10 (Aug.
30, 1993).
One area of special concern to business managers, especially
since 1990, has been the EPA’s use of criminal sanctions,
including incarceration, to enforce environmental laws. These
cases are not actually tried by the EPA; rather, they are passed
on by the EPA to the Justice Department with a recommendation
for prosecution.
Since 1994, the agency has been operating under a policy
statement issued to guide its special agents in their enforcement
activities. Under this policy, the agents are to look for
“significant environmental harm” and “culpable conduct.” To
satisfy the second criterion, the EPA looks for a “history of
repeated violations,” “concealment of misconduct,”
“falsification of required records,” “tampering with monitoring

28. or control equipment,” and “failing to obtain required licenses
or permits.”2
2 E. Devaney, The Exercise of Investigative
Discretion (American Law Institute, 1995).
By issuing this policy, the EPA is trying to put firms on notice
as to when their conduct is clearly unacceptable and may
subject them to criminal liability. The policy also reflects the
EPA’s intent to target the worst violators and make examples of
them, hoping that such prosecutions will have a deterrent effect.
The EPA’s Final Policy on Penalty Reductions encourages firms
to engage in environmental self-auditing. If a firm can
demonstrate that it discovered a violation and moved to correct
it, the EPA will seek to reduce the penalty for the violation. Of
course, the firm that engages in a self-audit, discovers a
violation, and chooses not to change the harmful practice is
setting itself up as a candidate for criminal prosecution.
See Exhibit 22-1 for the elements of a successful environmental
auditing program.
Exhibit 22-1 Elements of a Successful Auditing Program
The National Environmental Policy Act of 1970
One of the first major environmental laws passed in this nation
set forth our country’s policy for protecting the environment.
This act, the National Environmental Policy Act of 1970
(NEPA), is regarded by many as the country’s most influential
piece of environmental legislation.

29. The NEPA is also viewed as an extremely powerful piece of
legislation, because its primary purpose and effect have been to
reform the process by which regulatory agencies make
decisions. Title II of the NEPA requires the preparation of
an Environmental Impact Statement (EIS) for every major
legislative proposal or agency action that would have a
significant impact on the quality of the human environment. A
substantial number of these statements are filed every year and
are the basis of a significant amount of litigation.
Environmental Impact Statement (EIS)
A statement that must be prepared for every major federal
activity that would significantly affect the quality of the human
environment.
Threshold Considerations
An EIS is required when three elements are present. First, the
action in question must be federal, such as the grant of a
license, the making of a loan, or the lease of property by a
federal agency. Second, the proposed activity must be major,
that is, requiring a substantial commitment of resources.
Finally, the proposed activity must have a significant impact on
the human environment.
Content of The EIS
Once an agency has determined that an EIS is necessary, it must
gather the information necessary to prepare the document. The
NEPA requires that an EIS include a detailed statement of

30. 1. the environmental impact of the proposed action;
2. any adverse environmental effects that cannot be avoided
should the proposal be implemented;
3. alternatives to the proposed action;
Comparative Law Corner Pollution Controls in Japan
Japan’s first pollution legislation was passed in 1970,
protecting air, water, and other areas. Instead of using a system
like that of the United States, in which a national agency (the
EPA) performs checks and assessments, Japan addressed the
problem from inside the industries themselves.
Japan’s solution was to require certain industries to have
personnel specifically in charge of making sure the company
was following environmental laws. Any company in one of the
following industries is covered under this regulation:
manufacturing, electric power supply, gas supply, or heat
supply, which has facilities that generate soot, dust, noise,
polluted water, or vibration. Larger companies are required to
have three levels of pollution control personnel. At the highest
level is the pollution control supervisor, who supervises and
manages the work relating to control of pollution in factories. A
higher-level manager, such as the factory manager, is suitable
and may fulfill this role. Below the supervisor is the senior
pollution control manager, who assists the pollution control
supervisor and directs the pollution control managers. At the
lowest level are the pollution control managers, who actually do

31. the inspections and make sure everything is up to environmental
standards in their facility type.
4. the relationship between local short-term uses of the human
environment and the maintenance and enhancement of long-term
productivity; and
5. any irreversible and irretrievable commitments of resources
that would be involved in the proposed activity should it be
implemented.
A continuing problem under the act, however, is interpreting
what is meant by environmental impacts. Clearly, they extend
beyond the immediate effects on the natural environment; in
some cases, they have been held to include noise, increased
traffic and congestion, the overburdening of public facilities
such as sewage and mass transportation systems, increased
crime, increased availability of illegal drugs, and (in a small
number of cases) damage to the psychological health of those
affected by the agency action. Other cases, however, have not
allowed all such damages. For example, the loss of business
profits resulting from a proposed agency action has not been
considered an environmental impact.
The following case illustrates how difficult it sometimes is for
the court to determine a significant environmental impact that
requires the filing of an EIS.
Another problem regarding the scope of the EIS pertains to the
requirement of a detailed statement of alternatives to the

32. proposed actions. What alternatives must be discussed, and how
detailed must the discussion be? In general, any reasonable
alternatives, including taking no action, must be discussed. The
more likely the alternative is to be implemented, the more
detailed the statement must be.
Case 22-2 Brodsky v. United States Nuclear Regulatory
Commission
United States Court of Appeals for the Second District 2013
U.S. App. LEXIS 339 (2013)
Richard L. Brodsky, a New York State Assemblyman, asserted,
among other claims, that the Nuclear Regulatory Commission
(NRC) erred in not producing an environmental impact
statement (EIS) under the NEPA. The plaintiff claimed that the
defendant’s production of an environmental assessment (EA)
and a finding of no significant impact (FONSI) were inadequate.
According to the defendant, the environmental assessment
looked at an increase in fire safety risk and every other adverse
environmental effect. In the end, the U.S. District Court for the
Southern District of New York concluded that the defendant
agency’s environmental assessment satisfied its minimal burden
to justify foregoing the environmental impact statement and
granted the defendant summary judgment. The plaintiff
appealed.
Judge Sack
The Need for an Environmental Impact Statement under NEPA

33. Plaintiffs contend that the NRC erred in failing to produce an
environmental impact statement (“EIS”) under NEPA, instead
producing only an environmental assessment (“EA”) and a
finding of no significant impact (“FONSI”). We disagree:
“Judicial review of agency decisions regarding whether an EIS
is needed is essentially procedural,” and “the decision not to
prepare an EIS is left to the informed discretion of the agency
proposing the action.” “[A] reviewing court must ensure that
[the agency] has taken a ‘hard look’ at the environmental
consequences and assess whether the agency has convincingly
documented its determination of no significant impact.”
The NRC’s EA and FONSI satisfy the agency’s minimal burden
to justify foregoing the EIS. The EA contains extended
discussion of why the exemption does not create any fire safety
risk, examines whether this exemption would have any other
adverse environmental effect, and considers the alternative of
not granting the exemption (and thereby requiring compliance).
The NRC was not required to say more.
We have considered plaintiffs’ remaining arguments and, with
the exception of the public participation challenge under NEPA
addressed in our related opinion issued today, conclude they are
without merit. The judgment of the district court is therefore
AFFIRMED IN PART in accordance with this order.*
Affirmed in part in favor of Nuclear Regulatory Commission.
Critical Thinking About The Law

34. 1. Reasons or facts by themselves do not necessarily lead to one
and only one decision. In this case, for instance, could you
make the case that the court strains to find on behalf of the
Nuclear Regulatory Commission? Explain.
Could the same evidence have been used to overturn the original
decision? Why or why not?
2. Is “significant impact” ambiguous? In other words, is it
reasonable to wonder just what that term means in this instance?
Explain.
Effectiveness of The EIS Process
The EIS requirement has clearly changed the process of agency
decision making, but many wonder whether the requirement has
improved the quality of that decision making.
Now that this umbrella environmental act has been discussed,
we will examine some of the specific laws designed to protect
various aspects of the environment. The focus will initially be
on protecting the quality of the nation’s water.Regulating Water
Quality
Water pollution is controlled today primarily by two pieces of
legislation: the Federal Water Pollution Control Act (FWPCA;
also called the Clean Water Act) and the Safe Drinking Water
Act (SDWA). The first concentrates on the quality of water in
our waterways; the second ensures that the water we drink is not
harmful to our health. (Some people say that the former law
protects the environment from humans, whereas the latter

35. protects humans from the environment.)The Federal Water
Pollution Control Act
When Congress passed the 1972 amendments to the FWPCA, it
established two goals: (1) “fishable” and “swimmable” waters
by 1983 and (2) the total elimination of pollutant discharges
into navigable waters by 1985. These goals were to be achieved
through a system of permits and effluent discharge limitations.
Obviously, these goals were not attained. Many argue that no
one really expected their attainment. They did, however, set a
high goal toward which we could aspire.Point-Source Effluent
Limitations
One of the primary tools for meeting the goals of the 1972
FWPCA amendments was the establishment and enforcement of
point-source effluent limitations. Point sources are distinct
places from which pollutants can be discharged into water.
Factories, refineries, and sewage treatment facilities are a few
examples of point sources. Effluents are the outflows from a
specific source. Effluent limitations, therefore, are the
maximum allowable amounts of pollutants that can be
discharged from a source within a given time period. Different
limitations were established for different pollutants.
point sources
Distinct places from which pollutants are discharged into water,
such as paper mills, electric utility plants, sewage treatment
facilities, and factories.

36. effluent limitations
Maximum allowable amounts of pollutants that can be
discharged from a point source within a given time period.
Under the National Pollutant Discharge Elimination System
(NPDES), every point source that discharges pollutants must
obtain a discharge permit from the EPA or from the state if the
state has an EPA-approved plan at least as strict as the federal
standards. The permits specify the types and amounts of
effluent discharges allowed. The discharger is required to
monitor its discharges continually and report any excess
discharges to either the state or federal EPA. Discharges
without a permit or in amounts in excess of those allowed by
the permit may result in the imposition of criminal penalties.
Enforcement of the act is left primarily to the states when those
states have an approved program for regulation. The act,
however, provides for federal monitoring, inspection, and
enforcement. Citizens may also bring suit to enforce the
effluent limits.
An interesting issue that arose under the act was the question of
what constituted a discharge. The Supreme Court clarified the
term discharge in the following case. Case 22-3 Los Angeles
County Flood Control District v. Natural Resources Defense
Council, Inc. et al.
United States Supreme Court 133 S. Ct. 710 (2013)
Petitioner Los Angeles County Flood Control District operates a

37. “municipal separate storm sewer system” (MS4), a drainage
system that collects, transports, and discharges storm water.
Because storm water is often heavily polluted, the CWA and its
implementing regulations require certain MS4 operators to
obtain an NPDES permit before discharging storm water into
navigable waters. The District has such a permit for its MS4.
Respondents Natural Resources Defense Council, Inc. (NRDC)
and Santa Monica Baykeeper filed a citizen suit against the
District and others under § 505 of the CWA, alleging, among
other things, that water-quality measurements from monitoring
stations within the Los Angeles and San Gabriel Rivers
demonstrated that the District was violating the terms of its
permit.
The District Court granted summary judgment to the District on
these claims, concluding that the record was insufficient to
warrant a finding that the MS4 had discharged storm water
containing the standards- exceeding pollutants detected at the
downstream monitoring stations. The 9th Circuit reversed in
relevant part. The court held that the District was liable for the
discharge of pollutants that, in the court’s view, occurred when
the polluted water detected at the monitoring stations flowed
out of the concrete-lined portions of the rivers, where the
monitoring stations are located, into lower unlined portions of
the same rivers.Justice Ginsburg
The Court granted review in this case limited to a single

38. question: Under the Clean Water Act . . . does the flow of water
out of a concrete channel within a river rank as a “discharge of
a pollutant”? In this Court, the parties and the United States
as amicus curiae agree that the answer to this question is “no.”
They base this accord on South Fla. Water Management Dist. v.
Miccosukee Tribe, . . . in which we accepted that pumping
polluted water from one part of a water body into another part
of the same body is not a discharge of pollutants under the
CWA. Adhering to the view we took in Miccosukee, we hold
that the parties correctly answered the sole question presented
in the negative. The decision in this suit rendered by the Court
of Appeals for the Ninth Circuit is inconsistent with our
determination. We therefore reverse that court’s judgment.
. . . [W]e held in Miccosukee that the transfer of polluted water
between “two parts of the same water body” does not constitute
a discharge of pollutants under the CWA. . . .We derived that
determination from the CWA’s text, which defines the term
“discharge of a pollutant” to mean “any addition of any
pollutant to navigable waters from any point source.” . . . Under
a common understanding of the meaning of the word “add,” no
pollutants are “added” to a water body when water is merely
transferred between different portions of that water body. . . .”
In Miccosukee, polluted water was removed from a canal,
transported through a pump station, and then deposited into a
nearby reservoir. . . . We held that this water transfer would

39. count as a discharge of pollutants under the CWA only if the
canal and the reservoir were “meaningfully distinct water
bodies.” . . . no discharge of pollutants occurs when water,
rather than being removed and then returned to a water body,
simply flows from one portion of the water body to another. We
hold, therefore, that the flow of water from an improved portion
of a navigable waterway into an unimproved portion of the very
same waterway does not qualify as a discharge of pollutants
under the CWA. . . .*
Reversed in favor of Petitioner, Los Angeles Country Flood
Control District.
Permissible discharge limits under the discharge system are
based on technological standards. Most sources today must use
the best available control technology (BACT). All new sources
must meet this standard, but some existing facilities are allowed
to meet a slightly lower standard, best practicable control
technology (or BPCT). The EPA issues regulations explaining
which equipment meets these standards.The Safe Drinking
Water Act
The FWPCA ensures that the waterways are clean, but “clean”
does not necessarily mean “fit to drink.” The SDWA, therefore,
sets standards for drinking water supplied by a public water
supply system, which is defined by the act as a water supply
system that has at least 15 service connections or serves 25 or
more persons.

40. The SDWA requires the EPA to establish two levels of drinking
water standards for potential drinking water contaminants.
Primary standards are to protect human health, and secondary
standards are to protect the aesthetic quality of drinking water.
Primary standards are based on maximum contaminant level
goals (MCLGs) and maximum contaminant levels (MCLs) for
all contaminants that have the potential to have an adverse
effect on human health. MCLGs are the levels at which there are
no potential adverse health effects. These are unenforceable,
health-based goals; they are the high standards to which we
aspire. The MCLs are the enforceable standards. They are
developed from the MCLGs but also take into account the
feasibility and cost of meeting the standard. By 1991, the EPA
was to have set MCLs for 108 of the hundreds of contaminants
found in our drinking water and MCLs for 25 more
contaminants every three years thereafter. These goals were not
met, and the 1996 amendments to the SDWA gave the EPA more
flexibility in setting standards so that the agency could focus
first on setting standards for the contaminants that posed the
greatest potential health hazards.
Keeping up with the ever-increasing MCLs is a difficult task for
public drinking water suppliers. Monitoring these systems is
also a chore. Most states do monthly monitoring. Violations
may be punished by administrative fines or orders. The 1996
amendments also imposed a “right to know” provision,

41. requiring drinking water suppliers to provide every household
with annual reports on water contaminants and the health
problems they may cause.Regulating Air Quality
A second major environmental concern is protecting the quality
of the air. To that end, Congress enacted the Clean Air Act in
1970. Although air quality continues to improve, the EPA
estimated that in 2006, more than 60 percent of Americans lived
in areas that did not meet the ambient air quality standards for
at least one of six major conventional air pollutants: carbon
monoxide, lead, nitrogen oxides, suspended particulates, ozone,
and sulfur dioxide.3
3 EPA, Basic Information. Accessed March 15, 2008
at www.epa.gov/airtrends/sixpoll.html.
Table 22-1 illustrates some of the most common health
problems caused by these pollutants. In addition to these
enumerated health problems, nitrogen oxides and sulfur dioxide
contribute to the formation of acid rain, which defaces buildings
and causes the pH levels of lakes to reach such low levels that
most plants and animals can no longer survive in them. These
pollutants, frequently referred to as criteria pollutants, have
been regulated primarily through national air quality
standards.Table 22-1 Air Pollutants and Associated
Health Problems
Pollutant
Associated Problems

42. Carbon monoxide
Angina, impaired vision, poor coordination, lack of alertness
Lead
Neurological system and kidney damage
Nitrogen oxides
Lung and respiratory tract damage
Ozone
Eye irritation, increased nasal congestion, reduction of lung
function, reduced resistance to infection
Sulfur dioxide
Lung and respiratory tract damage
Although the EPA is authorized to regulate air quality,
environmentalists and others do not always believe that the EPA
does its job effectively. In Massachusetts v. Environmental
Protection Agency, ultimately heard by the Supreme Court in
2007, the state of Massachusetts and a number of environmental
organizations challenged the EPA’s refusal to regulate
greenhouse gas emissions from motor vehicles. The high court
ordered the EPA to determine whether greenhouse gases did
indeed endanger human health. The EPA subsequently made an
endangerment finding, which paved the way for the current
mobile source performance standards that regulate tailpipe
emissions of greenhouse gases and mileage requirements. In
2010, the EPA and the National Highway Transportation and
Safety Administration enacted the Tailpipe Rule, which required

43. passenger cars, light-duty trucks, and medium-duty passenger
vehicles to meet a 35-mile-per-gallon standard for model years
2012 through 2016. In 2012, a final rule was promulgated
establishing greenhouse gas emissions standards for model
years 2017 through 2025.The National Ambient Air Quality
Standards
The National Ambient Air Quality Standards (NAAQS) provide
the focal point for air pollution control. The administrator of
the EPA establishes primary and secondary NAAQS for criteria
pollutants. Primary standards are standards that the
administrator determines are necessary to protect the public
health, including an adequate margin of safety. Secondary
standards are more stringent, as they are the standards that
would protect the public welfare (crops, buildings, and animals)
from any known or anticipated adverse effect associated with
the air pollutant for which the standard is being established.
Currently, the primary and secondary standards are the same for
all criteria pollutants except sulfur dioxide. The administrator
of the EPA retains the authority to establish new primary and
secondary standards if scientific evidence indicates that the
present standards are inadequate or that such standards must be
set for currently unregulated pollutants.
National Ambient Air Quality Standards (NAAQS)
A two-tiered set of standards developed for the chief
conventional air pollutants: primary standards designed to

44. protect public health and secondary standards designed to
protect public welfare.
Once each of the NAAQS is established, each state has nine
months to establish a state implementation plan (SIP) that
explains how the state is going to ensure that the pollutants in
the air within a state’s boundaries will be kept from exceeding
the NAAQS. Primary NAAQS must be achieved within three
years of the creation of a SIP, and secondary standards are to be
met within a reasonable time. The administrator of the EPA has
to approve all SIPs. When a SIP is found to be inadequate, the
administrator has the power to amend it or send it back to the
state for revision.
state implementation plan (SIP)
A plan required of every state that explains how the state will
meet federal air pollution standards.
In the 1990 Clean Air Act Amendments, Congress specifically
addressed those areas of the country that had not yet met the
NAAQS, the so-called nonattainment areas. Such areas are
classified into five categories ranging from “marginal” to
“extreme,” depending on how far out of compliance they are.
New deadlines for meeting the primary standard for ozone were
set, ranging from 5 to 20 years. Nonattainment areas also must
establish or upgrade vehicle inspection and maintenance
programs.
Because emissions from upwind areas may travel and pollute

45. downwind areas, when states develop their SIPs, they are
required to take into account the effect of pollution in their
state on downwind areas and eliminate those amounts of
pollutants that can contribute to nonattainment in those areas. In
2014, the United States Supreme Court, in EPA v. EME Home
City Generation, L.P.,4 upheld the EPA’s Cross-State Air
Pollution Transport Rule, the rule that mandates that sulfur
dioxide and nitrogen oxide emissions from upwind states do not
contribute significantly to nonattainment in downwind states.
4 134 S. Ct. 1584 (2014).New Source Review
As part of the 1977 Clean Air Act Amendments, Congress
established the New Source Review (NSR) program, which
regulates criteria pollutants and ensures acceptable levels of
NAAQS by mandating the installation of new pollution control
technology in new or modified stationary sources. In 2002, it
was estimated that the NSR regulated more than 17,000
stationary sources, such as power plants, oil refineries, and
chemical factories. Consequently, many view the NSR as a key
provision in the Clean Air Act, as it removes millions of tons of
sulfur dioxide, nitrogen oxides, and mercury from the air each
year.5
5 EPA, New Source Review, Report to the President (June
2002). Available at www.epa.gov/nsr
/documents/nsr_report_to_president.pdf.
The NSR program, however, can be changed, and some view

46. proposed changes as further rollbacks of long-standing
environmental protections. One proposed change to the NSR
would have allowed significant maintenance, upgrades, and
expansions to occur without requiring new pollution controls as
long as the costs of the modifications did not exceed 20 percent
of the cost of the entire “process unit.” Under this proposed
rule, major utility plant changes that cost millions of dollars
and increase pollution by thousands of tons could be defined as
“routine maintenance” and thus be exempt from Clean Air Act
protections. Environmental groups expressed strong opposition
to this proposal, arguing that it would substantially harm the
quality of the air, increase respiratory ailments such as asthma,
and cause thousands of premature deaths. In 2004, the EPA
reported that more than 100 million people in the United States
breathe unhealthy levels of particulates emitted from stationary
sources. Citing the widespread health effects of increased
particulate matter in the air, environmentalist groups sued to
stop implementation of the changes. In March 2006, the D.C.
Circuit Court sided with the environmentalists and unanimously
ruled to invalidate the NSR rule changes. However, future
attempts to change the rule are still possible.The Acid Rain
Control Program
One of the major air quality problems facing the United States,
as well as other countries, is acid rain. Roughly 75 percent
of acid rain is caused by emissions of sulfur dioxide and

47. nitrogen oxides from the burning of fossil fuels by electric
utilities. The 1990 Clean Air Act Amendments included an
innovative approach to controlling sulfur dioxide emissions.
acid rain
Precipitation with a high acidic content (pH level of less than 5)
caused by atmospheric pollutants.
Under the 1990 Clean Air Act Amendments, Congress required
the EPA to establish an emissions trading program that would
significantly cut sulfur dioxide emissions. Under the program,
the EPA auctioned a given number of sulfur dioxide allowances
each year. A holder could emit one ton of sulfur dioxide for
each allowance. Firms holding allowances would be able to use
the allowances to emit pollutants, “bank” their allowances for
the next year, or sell their allowances to other firms. The
purpose of the program was to reduce total emissions in the
most efficient way possible. Those firms for which emission
reduction was the cheapest would reduce their emissions
extensively, whereas those for which emission reduction would
be extremely expensive would find it more efficient to buy
allowances. Total emissions would fall because every
succeeding year, the number of allowances issued would be
reduced, but the firms actually reducing their emissions would
be the ones whose emissions could be reduced at the lowest
cost.
On March 29, 1993, the first auction of EPA pollution

48. allowances was held. More than 150,000 allowances were sold,
with each allowance permitting the emission of one ton of
sulfur dioxide. Prices for each allowance ranged from $122 to
$450. Utilities were given a fixed amount of allowances and
could bid for others at the auction. Some environmental groups
also participated in the auction, buying allowances to retire
unused to help clean the air.
By 1995, after three years of program operation, the price of the
allowances had fallen to less than $140 per ton. In 1998, a total
of 150,000 allowances were offered for use that year at a price
ranging from $115.01 to $228.92. In 2007, only 125,000
allowances were auctioned, at an average price of $444.39. By
2008, total sulfur dioxide emissions from regulated sources
were down to 7.6 million tons, exceeding the program’s long-
term goal of 9.5 million tons long before the 2010 deadline.
This program is often cited as a model for achieving cost-
effective pollution reduction; consequently, many people are
looking at emissions trading as a possible way to meet the
worldwide problem of too many harmful greenhouse gases.6
6 EPA, 2007 EPA Allowance Auction Results. Accessed March
15, 2008 at www.epa.gov
/airmarkets/trading/2007/07summary.html.Climate Change
Global climate change is the term increasingly being used by
scientists and environmentalists to refer to the process in which
Earth’s climate changes in response to greenhouse gases and

49. other pollutants. Global climate change is preferred to “global
warming” because the process is complex and involves many
more changes than simply an increase in Earth’s temperature.
Environmentalists and scientists argue that global climate
change is a matter of extreme concern because as Earth’s
temperature rises, a number of events are likely to happen.
First, the polar ice caps, as well as glaciers in general, will
melt. In fact, it appears that glacial loss has already begun. One
report indicated that the Arctic Sea ice cover had decreased in
2007 to a drastically new low; another record low was reached
in 2012, although there appeared to be a slight rebound in
2013.7
7 “Arctic Sea Ice Cover at Record Low,” CNN, September 11,
2007. Accessed March 15, 2008
at www.cnn.com/2007/TECH/science/09/11/arctic.ice.cover/ind
ex.html?iref=mpstoryview; “Polar Ice Cap Melt Not as Great
This Summer.” Accessed September 20, 2013
at www.earthweek.com /2013/ew130920/ew130920a.html.
The melting ice caps will release formerly frozen water, which
will raise ocean levels.8 Higher ocean water levels means that
low-lying coastal areas will begin to be flooded.9 In addition,
the release of cold, formerly frozen water will mix with the
warmer sea water, which will produce more storms. Further
climate changes could follow, and many species of animals
could be in danger of extinction from loss of habitat, change of

50. climate, or loss of a different species that served as a food
source.10
8 Pew Center on Global Climate Change, The Basics. Accessed
March 15, 2008 at www .pewclimate.org/global-warming-
basics.
9 Id.
10 Id.
In general, most scientists and environmentalists recognize the
existence of global climate change and the negative effects of
greenhouse gases. In reaction to such dramatic changes in
temperatures across the globe, for the first time since 1990, the
federal U.S. Department of Agriculture has updated the map of
planting zones in the United States, in preparation for the
“warmer 21st century.” With May 2014 through April 2015
being the warmest 12-month period among all months in the
136-year period of modern meteorological records, evidence of
the increased greenhouse effect and emission of global gases
seems to be growing. In 2007, 158 UN member countries held a
weeklong conference in Bali to discuss strategies for reducing
greenhouse gas emissions.11 The Bali meetings, which ended
with general agreement among the 158 countries, were intended
to create a continued strategy for reducing greenhouse gases
starting in 2012 when the first commitment period of the Kyoto
Protocol expires.
11 Andrew Revkin, “Voices on Bali, and Beyond,” New York

51. Times, December 6, 2007. Accessed January 2, 2011
at dotearth.blogs.nytimes.com/2007/12/16/voices-on-bali-and-
beyond/?scp =4&sq=bali%20climate%20conference&st=cse.
In 2009, the Copenhagen Agreement was reached and contained
promises of major emitting countries to cut carbon and develop
a monitoring system to track success or failure. Industrialized
countries also agreed to contribute $30 billion in near-term
climate aid while raising $100 billion annually by 2020 for
vulnerable nations. However, no firm allowances were set. In
2010, countries met once more and agreed to the Cancun
Agreement, which fleshed out some of the details of the
Copenhagen Agreement and bound countries to keep
temperature rise below 2 degrees Celsius above pre-industrial
levels, but no other firm commitments resulted, and parties
agreed that they need to continue working to resolve the
problems that are resulting from climate change.12
12 Lisa Friedman, “A Near-Consensus Decision Keeps U.N.
Climate Process Alive and Moving Ahead,” New York Times,
December 13, 2010. Accessed January 1, 2011
at www.nytimes.com/cwire/2010/12/13/13climatewire-a-near-
consensus-decision-keeps-un-climate-p-77618
.html?pagewanted=1&sq=bali%20climate%20conference&st=cs
e&scp=1.
Since that agreement, annual climate conferences have
continued to be held, as nation-states that signed the Kyoto

52. Protocol continue to search for ways to fight climate change.
During the meetings since 2010, the long-term goal has been a
universal UN treaty on climate change by 2015, which would
enter force by 2020. During the Bonn meeting in 2013,
participants focused on how to transform the world’s energy
systems quickly enough toward low-carbon energy, including
renewable energy, energy efficiency, and the consideration of
carbon capture and storage, while also making significant
strides toward the universal treaty extending the Kyoto
Protocol. Unfortunately, the United States never joined the
Kyoto Protocol and Canada pulled out of the agreement in 2011;
Japan, New Zealand, and Russia subsequently pulled out and
announced that they would not be signing up to a new interim
commitment to the treaty. As a result, even if parties can agree
on an extension of the treaty, the extension would cover only
about 15 percent of the world’s emissions of greenhouse gases.
On May 15, 2015, leaders from 12 states and provinces in 7
countries, collectively representing more than 100 million
people, signed an agreement to limit the increase in the global
average temperature to below 2 degrees Celsius, the warming
threshold at which scientists say that there will likely be
catastrophic climate disruptions. The agreement, called “Under
2 MOU,” was created to provide a template for the world’s
nations to follow as work continued toward an international
agreement to reduce greenhouse gas emissions ahead of 2015’s

53. United Nations Climate Change Conference in Paris.
The signatories committed to reduce greenhouse gas emissions
to 80 to 95 percent below 1990 levels by 2050 or to achieve a
per capita annual emission target of less than 2 metric tons by
2050. The targets allow each government to tailor emission
reduction plans to fit regional needs. Parties also committed to
recruiting additional global partners before the United Nations
Climate Change Conference in December 2015.13 As this book
went to press before the Paris meeting, it is too early to know
the effect this treaty will have, but many are hopeful that the
Paris meeting will result in a new global climate change
agreement.
13 Governor Brown, “International Leaders Form Historic
Partnership to Fight Climate Change.” Accessed May 15, 2015
at under2mou.org/?page_id=447.
Regulating Hazardous Waste and Toxic Substances
Most of us want to enjoy the products that technology has
developed, but what price are we willing to pay for these
amenities?Comparative Law Corner Solar Energy in Germany
Germany has determined that the fossil fuel-based energy
system is not sustainable; thus, it has adopted an impressive
new policy, called Energiewende, that has as its goal the
generation of 80 percent of the nation’s electricity from
renewable energy sources by 2050. To attain this goal, Germany
has had to move quickly. By the end of 2012, Germany had

54. installed considerably more solar power capacity per capita than
any other country, and in the first quarter of 2014, renewable
energy sources met a record 27 percent of the country’s
electricity demand due to additional installations and favorable
weather. It remains to be seen whether Germany can meet its
goals, but the huge growth in renewable energy in the country is
a good illustration of how governmental policy can be effective
in improving environmental conditions. Germans view their
approach as an important step in fighting global climate change.
Solar panels on house after house in Germany are helping the
nation work toward accomplishing its goal of developing a
sustainable economy.
Until the mid-1970s, most people were content to take
advantage of newly available products without giving much
thought to the by-products resulting from their manufacture.
Most businesspeople were primarily concerned about creating
new products and using new technology to increase production
and profits. Then came a growing awareness of the potential
health and environmental risks posed by the waste created in the
production process. In addition to the problems created by
waste, some of the new products themselves (and their newly
created chemical components) were proving to be harmful.
The potential health risks from these chemicals and wastes
include a plethora of cancers, respiratory ailments, skin

55. diseases, and birth defects. Environmental risks include not
only pollution of the air and water but also unexpected
explosions and soil contamination. Species of plants and
animals may be threatened with extinction.
During the mid-1970s, Congress began to take a closer look at
regulating waste and toxic materials. One of the problems that
regulators face in this area, however, is a lack of scientific
knowledge concerning the impact of many chemicals on human
health. We know that exposure to many chemicals causes
cancer in laboratory animals. We are unable, however, to
ascertain the impact of each increment of exposure. For
example, we know that saccharin in some quantity can cause
cancer in humans, but we do not know what quantity or whether
especially sensitive persons may be affected by substantially
smaller amounts. Congress has responded to these and related
problems in a variety of ways.
Four primary acts are designed to control hazardous waste and
toxic substances: (1) the Resource Conservation and Recovery
Act of 1976; (2) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980; (3) the Toxic
Substances Control Act of 1979; and (4) the Federal Insecticide,
Fungicide, and Rodenticide Act of 1972.
The Resource Conservation and Recovery Act of 1976
The Resource Conservation and Recovery Act of 1976 (RCRA)
regulates both hazardous and nonhazardous waste, with the

56. primary emphasis on control of hazardous waste. The focus of
the act is on the treatment, storage, and disposal of hazardous
waste (see Exhibit 22-2). The reason for this focus was the
belief that it was not necessarily the creation of waste that was
the problem, but rather the improper disposal of such waste.
Also, it was hoped that making firms pay the true costs of safe
disposal would provide the financial incentive for them to
generate less waste.
The Manifest Program
The best-known component of the RCRA is its manifest
program, which is designed to provide “cradle-to-grave”
regulation of hazardous waste. A waste may be considered
hazardous and, thus, fall under the manifest program in one of
three ways. First, it may be listed by the EPA as a hazardous
waste. Second, the generator may choose to designate the waste
as hazardous. Finally, according to the RCRA, a hazardous
waste may be “garbage, refuse, or sludge or any other waste
material that has any one of the four defining characteristics:
ignitability, corrosivity, reactivity, or toxicity.”
manifest program
A program that attempts to see that hazardous wastes are
properly transported to disposal facilities licensed by the EPA
so that the agency will have an accurate record (manifest) of the
location and amount of all hazardous wastes.
hazardous waste

57. Any waste material that is ignitable, corrosive, reactive, or
toxic when ingested or absorbed.
Once a waste is designated as hazardous, it falls under RCRA’s
manifest program. Under this program, generators of hazardous
waste must maintain records called manifests. These manifests
list what amount and type of waste is produced, how it is to be
transported, and how it will ultimately be disposed of. Some
wastes cannot be disposed of in landfills at all. Others must
receive chemical or biological treatment to reduce toxicity or to
stabilize them before they can be deposited in landfills. If the
waste is transported to a landfill, both the transporter and the
owner of the disposal site must certify their respective sections
of the manifest and return it to the creator of the waste. The
purpose of these manifests is to provide a record of the location
and amount of all hazardous wastes and to ensure that such
waste will be properly transported and disposed of. Exhibit 22-
3 shows the hazardous waste manifest trail. An electronic
Exhibit 22-2 What is a Hazardous Waste?
Exhibit 22-3 The Hazardous Waste Manifest Trail
Source: EPA, Environmental Programs and Challenges: EPA
Updates (Washington, DC: EPA, August 1988), 88.
hazardous waste manifest trail is currently being developed to
increase the safety of hazardous waste disposal.

58. All firms involved in the transportation and disposal of
hazardous waste must be certified by the EPA in accordance
with standards established under RCRA. Every year,
approximately 12 million tons of hazardous waste are
transported for treatment, storage, or disposal.
RCRA Amendments of 1984 and 1986
Congress amended RCRA in 1984 and 1986. The primary
effect of the amendments was to make landfills (or hazardous
waste dumps) a last resort for the disposal of many types of
waste. Advanced treatment, recycling, incineration, and other
forms of hazardous waste treatment are all assumed to be
preferable to land disposal. Some wastes were banned entirely
from landfill disposal.
The 1986 amendment requires that companies report the amount
of hazardous chemicals they release into the environment each
year. From 1997 to 2001, RCRA reported a decrease in overall
chemical emissions each year, but in 2004, toxic chemical
emissions increased 5 percent over the previous year; this
included a 3.4 percent increase in lead emissions and a 10
percent increase in mercury emissions. Environmental groups
blame the lax standards of the Bush administration for the
increase in toxic chemicals released into the environment.14
14 Juliet Eilperin, “Toxic Emissions Rising, EPA
Says,” Washington Post (June 23, 2004), A-2.
Enforcement of RCRA

59. RCRA is enforced by the EPA. States, however, may set up
their own programs as long as these programs are at least as
stringent as the federal program. The EPA gives any state that
has taken the responsibility for regulating its hazardous wastes
the first opportunity to prosecute violators. This procedure is
consistent with the EPA’s enforcement of other environmental
laws.
If the state fails to act within 30 days, the EPA takes action to
enforce the state’s requirements. The EPA may issue informal
warnings; seek temporary or permanent injunctions with
criminal penalties of up to $50,000 per day of violation, civil
penalties of up to $25,000 per violation, or both; or impose
other penalties that the EPA administrator finds appropriate.
The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, As Amended By The Superfund
Amendment and Reauthorization Act of 1986
If the manifest program is followed, waste will be disposed of
properly and there will be no more contaminated waste sites.
Before RCRA was enacted, however, there was extensive
unregulated dumping. Something had to be done to take care of
cleaning up the sites created by improper disposal. Exhibit 22-
4 shows some of the risks posed by these sites.
To alleviate the problems created by improper waste disposal,
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) authorized the creation of

60. the Superfund, primarily from taxes on corporations in
industries that create significant amounts of hazardous waste.
Additional funding also came from appropriations from the
general fund; fines, penalties, and recoveries from responsible
parties; and interest accrued on the balance of the fund. The
money in Superfund was then used by the EPA or state and local
governments to cover the cost of cleaning up leaks from
hazardous waste disposal sites when their owners could not be
located or were unable or unwilling to pay for the cleanup.
Superfund also provides money for emergency responses to
hazardous waste spills other than oil spills. When an owner is
found after a cleanup or was initially unwilling to pay, the EPA
may sue to recover the costs of the cleanup.
Superfund
A fund authorized by CERCLA to cover the costs of cleaning up
hazardous waste disposal sites whose owners cannot be found or
are unwilling or unable to pay for the cleanup.
Under CERCLA, liability for cleanup extends beyond the
immediate owner. So-called potentially responsible parties who
also may be held liable include (1) present owners or operators
of a facility where hazardous materials are stored, (2) owners or
operators at the time the waste was deposited there, (3) the
hazardous waste generators, and (4) those who transported
hazardous waste to the site.
Successful actions under CERCLA to recover costs have been

61. less frequent than originally hoped. The fund was intended to be
self-replenishing but has not been. Thus, CERCLA was
amended in late 1986 by the Superfund Amendment and
Reauthorization Act of 1986 (SARA). These amendments
provided more stringent cleanup requirements and increased
Superfund’s funding to $8.5 billion, to be generated primarily
by taxes on petroleum, chemical feedstocks, imported chemical
derivatives, and a new “environmental tax” on corporations.
Additional money was to come from general revenues,
recoveries, and interest.
The future of Superfund, however, remains in question. The
taxes on chemical and petroleum companies used to support
Superfund cleanups expired in
Exhibit 22-4 Environmental or Public Health Threats Requiring
Superfund Emergency Actions
Source: Office of Emergency and Remedial Response
(Superfund), U.S. EPA, reprinted in Environmental Programs
and Challenges: EPA Updates (EPA, August 1988), 96.
1995 and require reauthorization from Congress. Consequently,
in 2003, the fund was depleted of any money from the chemical
or petroleum industries, shifting the cleanup burden primarily to
the taxpayers through allocations by Congress from the general
fund.15 Because Superfund is no longer funded by polluter and

62. industry dollars, the completion of Superfund cleanups has
declined significantly because the fund is now primarily
dependent on annual allocations from the general fund.
Environmentalists warn that without a renewal of the tax on
chemical and petroleum industries, Superfund will not be able
to treat many of the nation’s most polluted sites, and in 2010,
the EPA seemed to support their position, estimating that the
cost of cleanup was increasing beyond the current funding
needed for Superfund sites.
15 General Accounting Office, Superfund Program: Current
Status and Future Fiscal Challenges, GAO/RECD-03-850, July
2003.
A temporary upswing in cleanups did occur as a result of a $600
million allocation to the Superfund from the American Recovery
and Reinvestment Act of 2009 (the federal “stimulus” designed
to create jobs and improve the economy). The beginning of
construction at 26 new Superfund sites increased operations at
another 25 ongoing cleanups, and completion of projects at over
20 sites as a consequence of this injection of money, has been
cited by some as evidence for the reinstitution of the tax on the
chemical and petroleum industries.16
16 Braunson Virjee, “Stimulating the Future of Superfund: Why
the American Recovery and Reinvestment Act Calls for a
Reinstatement of the Superfund Tax to Polluted Sites in Urban
Environments,” Sustainable Development Law & Policy 11, no.