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ALI-ABA Course of Study

Environmental Litigation

Sponsored with the cooperation of the University of Colorado School of Law

June 24 - 27, 2009

Boulder, Colorado

TABLE OF CONTENTS

Page

PROGRAM xiii

FACULTY PARTICIPANTS xvii

FACULTY BIOGRAPHIES xix

STUDY MATERIALS

VOLUME 1

1. The Nature of the Administrative Record

By William M. Cohen

1

2.

Effective Challenges to Agency Decisionmaking: Assembling the Record

and Avoiding Undue Deference

By Daniel Riesel and Elizabeth Knauer

27

3.

Evidentiary Issues Relating to Technical Data-Admissibility and

Authentication

By Kenneth J. Withers

55

Presentation Slides 57

Admissibility of Electronic Evidence 67

4.

Demonstrative Exhibits aka Pedagogical Devices aka Computer Generated

Exhibits

By Dennis J. Krumholz and Andrew Nicholson

71

5.

Use and Misuse of Technical Data: Telling the Scientific Story to

Scientific Virgins

By Elaine L. Spencer

Submitted by Dennis J. Krumholz

81

6.

Laying the Foundation for Admission of Soil/Groundwater Samples and

Analytical Results

By Donald W. Stever

93

7.

Material on Effective Advocacy in Air, Water, and Hazardous Waste

Litigation

By Donald W. Stever

107

Complaint in Ametek, Inc. v. Kraft Foods North America, Inc. 109

Complaint in Shulman v. Chromatex, Inc. 142

Opposition to Motion for Continuance and Opportunity to Conduct

Discovery

162

Transcript of Motion Hearing in U.S. v. Atlas Track Corp. 184vii

Sur-Reply Memorandum in Further Opposition to Motion to Dismiss

Their Counterclaims

194

8. Discovery in Environmental Litigation

By Ronald J. Hedges, Daniel Reisel, Donald W. Stever, and Kenneth J. Withers

201


The E-Discovery Amendments to the Federal Rules of Civil Procedure:

The 2007 Restyled Version and 2006 Committee Notes

228

Federal Court Decisions Involving Electronic Discovery — December 1,

2006-February 28, 2009

250

Managing Discovery of Electronic Discovery: A Pocket Guide for Judges 325

Working Group One on Electronic Document Retention and Production

(WGI) — Principles and Commentaries

358

9.

Preliminary Injunctions and Stays Pending Appeal in Environmental

Litigation

By Daniel Riesel

375

Table of Contents 377

Study Materials 378

Endnotes 411

10. Scientific Proof and Examination of Experts in Environmental Litigation

By Daniel Riesel

435


Study Materials 441

11.

Environmental Enforcement Litigation — Emerging Litigation Under the

Clean Air Act

By Peter Hsiao

535

12. Taming the Daubert Tiger

By Anthony Z. Roisman

543

13. Presenting Expert Testimony on Direct Examination

By Peter Hsiao

561

14.

Cleanup & Liability: Fundamental Issues in Private Party Hazardous

Materials Litigation

By Daniel Riesel and Ashley S. Miller

569


Study Materials 573

Endnotes 637

viii

VOLUME 2

15. CERCLA Overview

By John C. Cruden

665


Study Materials 671

Selected Department of Justice Press Releases 730

The Supreme Court's Decision in Burlington Northern & Santa Fe Railway

Company v. U.S.

735

16. Federal NRD Claims Under CERCLA, CWA, OPA, et al.

By James A. Bruen

743

17. 2008 Summary of Major Release Reporting Requirements

By James A. Bruen

753

California Requirements 755

Federal Requirements 771

18. Citizen Suits and Defenses Against Them

By Edward Lloyd

781


Study Materials 784

Appendix A: Federal Statutory Citizen Suits Provisions 818

Appendix B: State Citizen Suit Statutes 819

19.

California Motor Vehicle Greenhouse Gas Emissions Regulation

Litigation

By Yueh-ru Chu

821

20.

More of the Great Green Hope: California Carbon Trading for Climate

Change Improvements

By Peter Hsaio, Susan Linden, and Meredith J. Klein

855

21.

The Relationship Between Statutory and Tort Law: The Effects of a

Statutory Violation on a Negligence Lawsuit

By David N. Zeehandelaar

875

22. Trespass by Pollution: Remedy by Mandatory Injunction


883

23. NEPA in the Courts

By William M. Cohen

893


Study Materials 897

24. “Little NEPAs” and Their Environmental Impact Assessment Processes

By David Sive and Mark A. Chertok

967

Study Materials 969

Endnotes 989

25. The Federal Regulation of Wetlands

By Mark A. Chertok

1007

Scope of Article 1009ix

Study Materials 1011

26. Settlement Issues in Federal Enforcement Actions

By Carol E. Dinkins

1121

27. Aggregate Settlements: Ethical Considerations


1141

Study Materials 1143

American Bar Association Standing Committee on Ethics and

Professional Responsibility: Formal Opinion 06-438: Lawyer Proposing

to Make or Accept an Aggregate Settlement or Aggregated Agreement

1144

Tax Authority v. Jackson-Hewitt, Inc. (N.J., May 31, 2006) 1151

28. Ethics Considerations for the Environmental Lawyer

By Carol E. Dinkins

1165

29.

Ethics and Professional Responsibility in Environmental Litigation

By Carole E. Dinkins, Ronald J. Hedges, Anthony Z. Roisman,

and Kenneth J. Withers

1175


American Bar Association Standing Committee on Ethics and

Professional Responsibility: Formal Opinion 06-442: Review and Use of

Metadata

1188

State Bar of Arizona: 07-03: Confidentiality; Electronic Communications;

Inadvertent Disclosure

1193

District of Columbia Bar: Opinion 341: Review and Use of Metadata in

Electronic Documents

1196

Excerpts from Qualcomm v. Broadcom Corp. 1204

In the Matter of Michele Estrada (N.M. Sept. 28, 2006) 1210

American Bar Association Legal Technology Resource Center: Metadata

Ethics Opinions around the U.S.

1226

U.S. Department of Justice: Principles of Federal Prosecution of

Business Organizations (McNulty Memo)

1232

Principles of Federal Prosecution of Business Organizations (Filip

Guidelines)

1253

House of Representatives Report 110-445: Attorney-Client Privilege

Protection Act of 2007

1275

ABA Letter to Mark Filip re Meeting to Discuss Justice Department

Corporate Charging Guidelines for Prosecutors Affecting the

Attorney-Client Prividege, the Work Product Doctrine, and Employee

Rights

1284

30. U.S. Environmental Protection Agency

Terms of Environment: Abbreviations and Acronyms

1291

31. Evidentiary Issues Related to Technical Data (Handout)

By Dennis J. Krumholz and Andrew Nicholson

1355

32.

Embrace Tiger: Return to Mountain - Taming the Daubert Tiger

(Handout)


1377

x

33.

Climate Change Litigation: Next Big Thing, Or Much Ado About

Nothing? (Handout)

By Bonnie Allyn Barnett

1391

34. Environmental Litigation Hypothetical (Handout)

Submitted by Mark A. Chertok

1403

Hypothetical Figure 1 1408

Hypothetical Figure 2 1409

35. Wetland Delineation Report (Handout)

By Ralph E. Huddleston, Jr.

1411

Appendix A Data Sheets 1421

Appendix B Photographs 1434

Figure 1 Greenwinds Ridge Site, Everwinter Mountains, Nirvana 1439

Figure 2 Wetland Delineation Survey 1440

36. Expert Report (March 15, 2009) (Handout)

By Ralph E. Huddleston, Jr.

1441

37.

Effective Advocacy in Air, Water and Hazardous Waste Litigation

(Handout)

By James A. Bruen

1461

38. Emerging Clean Air Act Issues (Handout)

By Pamela J. Mazakas

1481

39.

Environmental Enforcement Litigation-Emerging Litigation Under the

Clean Air Act (Handout)

By Peter Hsiao

1521

40. Presentation of Direct Expert Testimony (Handout)

By Donald W. Stever

1537

xi

ALI-ABA Course of Study

Environmental Litigation


June 24-27, 2009 Boulder, Colorado

PROGRAM

Wednesday, June 24, 2009 8:00 a.m. Registration and Networking Session, Wolf Law Building WEBCAST SEGMENT A 9:00 a.m. Introductory Remarks and Course Overview – Mr. Riesel

9:15 a.m. Jurisdiction, Standing, Ripeness, and Judicial Review of Administrative Agency Action – Ms. Patton and Messrs. Cohen and Riesel

10:15 a.m. Networking Break 10:30 a.m. Evidentiary Issues Relating to Technical Data – Dr. Nicholson and

Messrs. Krumholz, Stever, and Withers 11:45 a.m. Clinical Discussions (not webcast or recorded) – Ms. Patton and

Messrs. Cohen, Krumholz, and Stever 12:30 p.m. Lunch Break WEBCAST SEGMENT B

1:45 p.m. Effective Advocacy in Air, Water, and Hazardous Waste Litigation – Messrs. Bruen and Stever

2:45 p.m. Networking Break 3:00 p.m. Discovery in Environmental Litigation – Messrs. Hedges, Riesel,

Stever, and Withers 4:15 p.m. Faculty Demonstration: Application for a Temporary Restraining

Order and Preliminary Injunction – Messrs. Bruen, Hedges, and Krumholz

5:00 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty (beer and wine will be served)

Thursday, June 25, 2009 8:00 a.m. Networking Session WEBCAST SEGMENT C

8:30 a.m. Emerging Litigation Under the Clean Air Act – Messrs. Hsiao and Kushner and Ms. Patton

9:45 a.m. Networking Break 10:00 a.m. Experts: Daubert and Its Progeny; Finding and Selecting Experts;

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Direct Examination; Cross-Examination – Messrs. Huddleston, Kushner, Roisman, Riesel, and Stever

11:45 a.m. Clinical Discussions (not webcast or recorded) – Messrs. Cohen, Hsaio, and Roisman

12:15 p.m. Lunch Break WEBCAST SEGMENT D

1:30 p.m. Faculty Demonstration: Deposition of an Expert – Messrs. Hsaio and Stever

2:30 p.m. Networking Break 2:45 p.m. Government-Initiated Hazardous Substance Litigation – Ms.

Barrett and Messrs. Cruden and Riesel 3:45 p.m. Private Multi-Party Hazardous Substance Litigation: Arranger

Liability; Proof of the Equitable Share and Defenses; Management of Complex Litigation – Judge Shaffer, Ms. Barnett, and Messrs. Cruden, Hedges, and Riesel

5:15 p.m. Adjournment for the Day Friday, June 26, 2009 8:00 a.m. Networking Session WEBCAST SEGMENT E

8:30 a.m. Natural Resources Damage Litigation – Mr. Cruden and Ms. Dinkins

9:45 a.m. Networking Break 10:00 a.m. Faculty Demonstration: Trial of an Alternate Energy Siting Case –

Judge Shaffer and Messrs. Huddleston, Roisman, and Zeehandelaar

11:30 a.m. Clinical Discussions (not webcast or recorded) 12:00 noon Lunch Break WEBCAST SEGMENT F

1:15 p.m. Citizen Suits and Defenses Against Them – Professor Lloyd, Mr. Chertok, and Ms. Patton

2:15 p.m. Networking Break 2:30 p.m. Hot Topics: Global Warming Litigation; Emerging

Environmental Litigation Issues and the Needed Skills – Mss. Barnett, Chu, and Patton and Professor Lloyd

3:45 p.m. Relationship Between Statutory and Tort Litigation – Ms. Chu and Messrs. Roisman and Zeehandelaar

5:00 p.m. Adjournment for the Day

xiv

Saturday, June 27, 2009 8:00 a.m. Networking Session WEBCAST SEGMENT G

8:30 a.m. NEPA Litigation; “Little NEPAs”; Interaction with W etlands Laws, Global Warming, and Cumulative Impacts – Mr. Cohen and Professor Lloyd

9:45 a.m. Networking Break 10:00 a.m. Negotiation and Settlement – Ms. Dinkins and Messrs. Cruden and

Roisman 11:15 a.m. Ethics and Professional Responsibility in Environmental

Litigation – Ms. Dinkins and Messrs. Hedges, Roisman, and Withers

12:15 p.m. Adjournment

xv

ALI-ABA Course of Study Environmental Litigation


June 24-27, 2009

Boulder, Colorado

PLANNING CHAIR

Daniel Riesel, Esquire Sive, Paget & Riesel, P.C.

10th Floor 460 Park Avenue

New York, NY 10022

FACULTY

Bonnie Allyn Barnett, Esquire Drinker Biddle & Reath LLP One Logan Square 18th & Cherry Streets Philadelphia, PA 19103 James A. Bruen, Esquire Farella Braun + Martel LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 Mark A. Chertok, Esquire Sive, Paget & Riesel, P.C. 10th Floor 460 Park Avenue New York, NY 10022 Yueh-ru Chu, Esquire Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General 26th Floor 120 Broadway New York, NY 10271

William M. Cohen, Esquire Perkins Coie LLP 607 14th Street, NW Washington, DC 20005 John C. Cruden, Esquire Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice Room 2143 950 Pennsylvania Avenue, NW Washington, DC 20530 Carol E. Dinkins, Esquire Vinson & Elkins LLP 2300 First City Tower 1001 Fannin Houston, TX 77002 Ronald J. Hedges, Esquire Ronald J. Hedges LLC 484 Washington Avenue Hackensack, NJ 07601

xvii

Peter Hsiao, Esquire Morrison & Foerster LLP Suite 3500 555 West Fifth Street Los Angeles, CA 90013 Mr. Ralph E. Huddleston, Jr. Senior Vice President Carpenter Environmental Associates, Inc. P.O. Box 656 Monroe, NY 10949 Dennis J. Krumholz, Esquire Riker Danzig Scherer Hyland & Perretti LLP Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962 Professor Edward Lloyd Columbia Law School 435 West 116th Street New York, NY 10027 Pamela J. Mazakas, Esquire Acting Air Enforcment Director U.S. Environmental Protection Agency Mail Code 2242A Ariel Rios Building Room 1119 1200 Pennsylvania Avenue, NW Washington, DC 20460 Andrew Nicholson, Ph.D. Integral Consulting Inc. Suite 370 12303 Airport Way Broomfield, CO 80021

Vickie L. Patton, Esquire Deputy General Counsel Environmental Defense Fund 2334 North Broadway Boulder, CO 80304 Anthony Z. Roisman, Esquire National Legal Scholars Law Firm, P.C. Stonewall Farm 84 East Thetford Road Lyme, NH 03768 The Honorable Craig B. Shaffer U.S. Magistrate Judge Alfred A. Arraj U.S. Courthouse Room 432 901 19th Street Denver, CO 80294 Donald W. Stever, Esquire K&L Gates LLP 599 Lexington Avenue New York, NY 10022 Kenneth J. Withers, Esquire Director, Judicial Education and Content The Sedona Conference Suite C-152 5150 North 16th Street Phoenix, AZ 85016 David N. Zeehandelaar, Esquire Blank Rome LLP One Logan Square Philadelphia, PA 19103

NOTE: Please go to www.ali-aba.org / CP059 for biographical information about this faculty.

xviii

FACULTY BIOGRAPHIES Planning Chair

Daniel Riesel, New York, New York Sive, Paget & Riesel, P.C. A.B., Union College; LL.B., Columbia University Lecturer in Law, Columbia Law School (1994- ); Adjunct Professor of Law, Benjamin N.

Cardozo School of Law (1986-92) Honors: Named one of two top tier environmental lawyers in New York (Chambers & Partners,

2005); listed as one of the most highly regarded environmental lawyers in the United States (Who’s Who Legal, 2005); named one of the metropolitan area’s “Best Lawyers” (New York Magazine, Aug. 2005)

Government and Public Service: Assistant United States Attorney, Southern District of New York (1967-73; Chief Environment Protection Unit, 1972-73); Special Counsel, Village of Croton-on-Hudson Planning Board (1989-92); New York State Hudson River Study Advisory Committee (1979-81); United States Air Force (Judge Advocate General's Department, 1962-66)

Memberships: American Bar Association; New York State Bar Association (Chair, Environmental Law Section); Association of the Bar of the City of New York (Chair, Committee on Environmental Law, 1984-87)

Publications Include: ENVIRONMENTAL ENFORCEMENT, CIVIL AND CRIMINAL (Law Journal Press, 1997); NATIONAL LAW JOURNAL (Environmental Columnist, 1993- ); ENVIRONMENTAL

LAW AND PRACTICE GUIDE (Contributing Author) (Matthew Bender 1992); A PRACTICAL

GUIDE TO ENVIRONMENTAL LAW (Contributing Author) (ALI-ABA 1987); INDUSTRY

GUIDE TO ENVIRONMENTAL COMPLIANCE (Contributing Author) (Harrison Publications 1984); HAZARDOUS WASTE AND TOXIC TORTS REPORTER (Contributing Editor, 1987- )

Planning co-chair of ALI-ABA’s Environmental Law course of study Faculty

Bonnie Allyn Barnett, Philadelphia, Pennsylvania Drinker Biddle & Reath LLP B.A., J.D., Temple University Government and Public Service: Law Clerk to the Honorable James T. Giles, United States

District Court for the Eastern District of Pennsylvania Memberships: Chartered the Delaware Valley Environmental Inn of Court, the first American Inn

devoted to environmental issues; Philadelphia Bar Association (former co-chair, Environmental Law Committee)

James A. Bruen, San Francisco, California Farella Braun + Martel LLP B.A., Claremont Men's College; J.D. Stanford University Honors: Fellow, American College of Environmental Lawyers; Listed as one of the top 7

xix

environmental lawyers in California (2008 Chambers USA Guide to America's Leading Business Lawyers); named one of the top 25 environmental experts in the world (Legal Media Group's Guide to the World's Leading Lawyers -Best of the Best 2009); one of the top 10 nominees for inclusion in the 2008 Guide to the World's Leading Environmental Lawyers; named in The Best Lawyers in America, International Corporate Law's Guide to Environmental Law Experts, Practical Law Company's Which Lawyer? Yearbook 2008, Who's Who in America, Who's Who in the World, International Who's Who of Environment Lawyers, (2008/09), International Who's Who of Business Lawyers, 2008/09 PLC Cross-Border Environment Handbook, Who's Who Legal USA (Environment 2008), Who's Who Legal California (Environment 2008), and Who's Who in American Law.

Government and Public Service: Assistant U.S. Attorney (N.D. Cal.) (1970-77; Chief, Civil Division, 1975-77); Attorney, Federal Communications Commission (1968-70)

Memberships: American Bar Association (Vice Chairman, Environmental Quality Committee, Section of Environment, Energy, and Resources, 1989-93; Co-Chairman, Enforcement Litigation Subcommittee, Environmental Litigation Committee, Section of Litigation 1990-92); American Inn of Court (Master-at-Large, San Francisco Chapter); International Society for Environmental Epidemiology; United States Technical Advisory Group to International Standards Organization (ISO) Technical Committee 207 on Environmental Management

Publications Include: Strategy for Complying with United States Environmental Laws, in INTERNATIONAL LEGAL STRATEGY (Co-Author) (Special Japanese Language Edition on United States Environmental Law 1993); Trial Preparation: A 9-Step Organization and Management System, in PHARMACEUTICAL PRODUCT LIABILITY (Shepard's/McGraw-Hill, Inc. 1989); HAZARDOUS WASTE AND TOXIC TORTS: LAW AND STRATEGY NEWSLETTER

(Contributing Editor, 1987-92); THE ROLLING TRIAL PREPARATION AGENDA: AN

EFFECTIVE TOOL FOR ORGANIZING AND MANAGING COMPLEX ENVIRONMENTAL

LITIGATION (Defense Research Institute 1985); TOXIC TORTS, HEALTH STUDIES AND

SUPERFUND – SYMBIOSIS GONE AMOK (Prentice Hall Law & Business 1987); DEMETER, AN EARTH RESOURCES SATELLITE (Stanford University 1968) (Co-Author); JURY

PERSUASIONS: TRIAL TECHNIQUES AND PSYCHOLOGICAL STRATEGIES (Contributor) (Prentice Hall Law and Business 1993)

Mark A. Chertok, New York, New York Sive, Paget & Riesel, P.C. B.A., State University of New York at Buffalo; J.D., Harvard University Adjunct Professor, Cardozo Law School (1996-2001); Adjunct Professor, Pace University

School of Law (1992-95); Adjunct Associate Professor, Real Estate Development Program of the Columbia University Graduate School of Architecture, Planning and Preservation (1990-94)

Memberships: American Bar Association (Section of Environment, Energy and Resources); New York State Bar Association (Section on Environmental Law Executive Committee, 1994- ; Co-Chair, Environmental Impact Committee, 1994- ); Association of the Bar of the City of New York (Committee on Environmental Law, 1988-91; Committee on Civil

xx

Rights, 1976-78) Publications Include: "Federal Jurisdiction Over Wetlands," to be included as a chapter in

FEDERAL WETLANDS REGULATION, to be published by the American Bar Association; WETLAND LAW AND POLICY - UNDERSTANDING SECTION 404 (Contributing Author) (ABA SEER, 2005); ENVIRONMENTAL IMPACT REVIEW IN NEW YORK (Contributing Author) (Bender & Co., Inc., 1998); NEW YORK ENVIRONMENTAL LAW, A LEGAL TREATISE (New York State Bar Association 1992 & 1995 Supp.) (Contributing Author); NEW YORK

ENVIRONMENTAL LAW HANDBOOK (New York State Bar Association 1988) (Contributing Author)

Yueh-ru Chu, New York, New York Assistant Attorney General, Environmental Protection Bureau, New York State Office of the

Attorney General B.A., Columbia University (Barnard College); J.D., Harvard University Government and Public Service: New York Civil Liberties Union (1993-98) Honors: Lefkowitz Memorial Award (New York State Office of the Attorney General) Memberships: Association of the Bar of the City of New York (Committee on Sex and Law,

1993-96) William M. Cohen, Washington, D.C. Adjunct Professor, American University, Washington College of Law Of Counsel, Perkins Coie LLP B.A., Michigan State University; J.D., George Washington University Honors: National Environmental Quality Award (Natural Resources Council of America, 2000);

Attorney General's Distinguished Service Award; Special Achievement Awards, Award for Meritorious Service, and Special Commendation Award (U.S. Department of Justice)

Government and Public Service: Environment and Natural Resources Division (and predecessors, U.S. Department of Justice (1966-2000; Chief, General Litigation Section, 1985-2000; Trial Attorney, 1971-86; Attorney, Appellate Section, 1965-70)

Publications Include: Chapter, Litigating NEPA Cases, THE NEPA LITIGATION GUIDE (Co-Author) (ABA 1999); Chapter, Highlights of NEPA in the Courts, in ENVIRONMENTAL

POLICY AND NEPA (Co-Author) (St. Lucie Press 1997); NEPA Chapter in A PRACTICAL

GUIDE TO ENVIRONMENTAL LAW (Co-Author) (ALI-ABA 1987) Memberships: Virginia State Bar Association; District of Columbia Bar Association Planning co-chair of ALI-ABA’s Environmental Impact Assessment: NEPA and Related Requirements course of study John C. Cruden, Washington, D.C. Acting Assistant Attorney General, Environment and Natural Resources Division, U.S.

Department of Justice B.S., United States Military Academy; M.A. (Government and Foreign Relations), University of

xxi

Virginia; J.D., Santa Clara University Honors: Two-time recipient of the Presidential Rank Award; listed in Who’s Who in the World,

Who’s Who in America and Who’s Who in American Law; Fellow, American Bar Foundation; Listed as one of the top 500 lawyers in America by a national magazine (2007)

Other Government Service: Environment and Natural Resources Division, U.S. Department of Justice (Chief, Environmental Enforcement Section, 1991-95; Deputy Assistant Attorney General, 1995-2009); Chief Legislative Counsel, U.S. Army (1988-91); Special Counsel to the Assistant Attorney General, Civil Division, U.S. Department of Justice (1987-88); United States Army

Memberships: American Bar Association (Chair-Elect, Section of Environment, Energy and Resources); District of Columbia Bar Association (President, 2005-06; Board of Governors): National Council of Bar Presidents (board member);

Publications Include: Chapter, Environmental Law and National Security, in NATIONAL

SECURITY LAW (Carolina Academic Press 1990) Carol E. Dinkins, Houston, Texas Vinson & Elkins L.L.P. B.S., University of Texas; J.D., University of Houston Adjunct Assistant Professor of Law, University of Houston College of Law (1971-73) Honors: Margaret Brent Women Lawyers of Achievement Award (1999); Kate Stoneman Award

(Albany Law School, 2003); The International Who's Who of Business Lawyers in environment, 2008; "Leading Lawyer" in environmental law in PLC Which Lawyer? Yearbook, 2008; Who's Who Legal: International in environmental law, 2008

Fellowships: American Bar Foundation; Texas Bar Foundation; Houston Bar Foundation; American College of Environmental Lawyers

Government and Public Service: U.S. Department of Justice: Deputy Attorney General of the United States (1984-85); Assistant Attorney General, Environment and Natural Resources Division (1981-83); Chairman, Privacy and Civil Liberties Oversight Board (Presidential Appointment) (2005- ); Texas Parks and Wildlife Commission (1997-2001); Chair, Texas Governor Bush's Task Force on Conservation (1999-2000); Federal Judicial Advisory Group to Senators Gramm and Hutchison (1985-96; 2000-01); University of Houston Vision Commission (1996); Texas Legislature Task Force on Judicial Selection (1990); Texas Legislature Joint Select Committee on the Judiciary (1987-89); Native Hawaiians Study Commission (1981-83); Chair, President's Task Force on Legal Equity for Women (1981-83); National Consumer Cooperative Bank Board (1981); Policy Committee of the Galveston Bay National Estuary Program Management Conference (1988-92); Texas Governor's Flood Control Action Group (1980-81); Chair, Texas Governor's Task Force on Coastal Zone Management (1979); Texas Environmental Protection Committee of the Interstate Oil Compact Commission (1979-81); Environmental Law Institute (Director, 1985-91)

Memberships: American Law Institute (Adviser, RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS); American Bar Association (Board of Governors, 2005-08; House

xxii

of Delegates: 1992-08; Chair, Rules and Calendar Committee, 2000-02; Nominating Committee, 1994-97 and 1998-2005; Standing Committee on the Federal Judiciary, 1997-98) (Section of State and Local Government Law: Chair, 1991-92) (Section of Environment, Energy and Resources: Chair, 1997-98; Council, 1992-95; Chair, Environmental Quality Committee, 1985-88) (Section of Litigation: Chair, Environmental Litigation Committee, 1989-92) (Special Committee on Energy Law, 1983-84); State Bar of Texas (Environmental Law Advisory Committee); Federal Bar Association; International Bar Association; Inter-American Bar Association; Houston Bar Association (Chair, Environmental Law Section 1990-92; Chair, Committee on the Environment, 1990-92); Environmental and Energy Study Institute (Director, 1986- ); The Nature Conservancy (Board of Governors, 1996- ; Chair, Texas Chapter, 1996- ; Trustee, Texas Chapter, 1987-96); Association of Former U.S. Attorneys; Marine Protected Areas Federal Advisory Committee (2003-06); Board of Directors, RESOLVE, Inc. (2001- )

Publications Include: ENVIRONMENTAL CRIMINAL LIABILITY : AVOIDING AND DEFENDING

ENFORCEMENT ACTIONS (Contributing Author) (BNA Books 1995); BUSINESS AND

COMMERCIAL LITIGATION (Contributing Author) (West Group 1998); New Solutions for Old Problems in Newark Bay, 29 SETON HALL L.REV. 60 (1998); Impact of the Environmental Justice Movement on American Industry and Local Government, 47 ADMIN . L.REV. 337 (1995); ABA JOURNAL (Board of Editors, 1998-2007)

Ronald J. Hedges, Hackensack, New Jersey B.A., University of Maryland; J.D., Georgetown University Adjunct Professor, Georgetown University Law Center (2006- ); Adjunct Professor, Seton Hall

University School of Law (1993-2007) Government and Public Service: U. S. Magistrate Judge (D.N.J., 1986-2007); Law Clerk to Hon.

Richard J. Hughes (N.J.) (1977-78); Advisory Group of Magistrate Judges (Member, 2001-05); Civil Justice Reform Act Advisory Committee, U.S. District Court for the District of New Jersey (Member, 1991-94; Reporter, 1994- ); Lawyers Advisory Committee, U.S. District Court for the District of New Jersey (1993- ); Compliance Judge, Court Mediation Program, U.S. District Court for the District of New Jersey (1992-2007)

Memberships: American Law Institute; American Bar Association; Federal Bar Association; Historical Society of the United States District Court for the District of New Jersey (Advisor, Board of Directors); Sedona Conference Advisory Board (2004- ); Sedona Conference Working Group on Protective Orders, Confidentiality, and Public Access (Member, 2003- ; Steering Committee, 2004- ); Sedona Conference Working Group on Best Practices for Electronic Document Retention & Production (Observer, 2004- ); Georgetown University Law Center National Law Alumni Board (2004- ); Georgetown University Law Center E-Discovery Advisory Board (2004- ); Georgetown University Law Center Corporate Counsel Institute (Advisory Board, 2007- )

Publications Include: DISCOVERY OF ELECTRONICALLY STORED INFORMATION: SURVEYING THE

LEGAL LANDSCAPE (BNA 2007); coauthor, MANAGING DISCOVERY OF ELECTRONIC

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INFORMATION: A POCKET GUIDE FOR JUDGES (Federal Judicial Center 2007); THE SEDONA

GUIDELINES: BEST PRACTICES ADDRESSING PROTECTIVE ORDERS, CONFIDENTIALITY AND

PUBLIC ACCESS IN CIVIL CASES (Co-Editor) (rev. Apr.2005 public comment draft); A

VIEW FROM THE BENCH AND THE TRENCHES: A CRITICAL APPRAISAL OF SOME PROPOSED

AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE, 227 F.R.D. 123 (2005); A Critical Appraisal of Proposed Amendment to Federal Rule of Civil Procedure 26(b)(5-)(B), DIGITAL DISCOVERY & E-EVIDENCE (Mar. 2005); Striving for Judicial Balance During the War on Terrorism, 32 N.J. RPTR. 52 (Dec. 2002/Jan. 2003); REPORT OF CIVIL

JUSTICE EXPENSE AND DELAY REDUCTION ADVISORY COMMITTEE, PLAN FOR

IMPLEMENTATION, AND ANNUAL ASSESSMENTS OF PLAN , DISTRICT OF NEW JERSEY (Principal Author) (1991-97)

Peter Hsiao, Los Angeles, California Morrison & Foerster LLP B.S., University of Utah; J.D., University of California at Berkeley (Boalt Hall) Adjunct Professor, Southwestern University School of Law (1995-2000) Honors: Special Achievement Award, Unites States Attorney's Office (1993); Golden Eagle

Award, United States Fish and Wildlife Service (1993); Special Commendation Award, Environment and Natural Resources Division, U.S. Department of Justice (1992)

Government and Public Service: Assistant U.S. Attorney (C.D. Cal.) (1990-94); Judge Pro Tem, Municipal Court for the State of California (1991-96); Advisory Committee, California Integrated Waste Management Board (1998-2000); Commission on Judicial Nominees Evaluation (2001-02); Los Angeles County Bar Foundation (Board of Directors, 1997- ); Listed as one of the best environmental lawyers, WHO’S WHO LEGAL and LOS ANGELES MAGAZINE

Government and Public Service: Senior Trial Attorney, Los Angeles Office of the U.S. Attorney, Department of Justice

Memberships: American Bar Association (Chair, Marine Resources Committee, 1996-98; Vice-Chair, Solid and Hazardous Waste Committee, 1997-99; Standing Committee on Environmental Law); State Bar of California (Chair, Environmental Law Section, 1999-2000; Chair, Standing Committee on Legal Services to the Poor, 1993-94); Los Angeles County Bar Association (Environmental Law Section, 1988-2005); American Institute of Chemical Engineers (1984-90)

Publications Include: CALIFORNIA ENVIRONMENTAL LAW AND NATURAL RESOURCES HANDBOOK

(Government Institutes 12th Ed. 2004) (Co-Editor and Author); State-led initiatives on electronic recycling and waste control, TRENDS: ABA SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES NEWSLETTER (November/December 2007)

Planning co-chair of ALI-ABA’s Clean Air Act course of study Ralph E. Huddleston, Jr., Monroe, New York Senior Vice President, Carpenter Environmental Associates, Inc. B.A., University of Louisville; M.S., Fisheries Biology, Eastern Kentucky University

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Guest Lecturer, Environmental Impact Assessment, George Washington University; Limnological Science, Polytechnic Institute of New York; Aquatic Biology, New Jersey Institute of Technology; Environmental Impact Assessment, Pace University

Prior Affiliations: Environmental Scientist, Versar, Inc. (1978-79) Government and Public Service: State of New York Watershed Protection and Partnership

Council’s Technical Advisory Committee; Participant, Technical Experts Panel, Public Meeting of Technical Experts to Discuss Preliminary Data on Cooling Water Intake Structure Technologies at Existing Facilities and Their Costs, U.S. Environmental Protection Agency

Memberships: American Fisheries Society; Society of Wetland Scientists; Phi Sigma Honor Society

Publications: Co-author, Procedure for Evaluation of the Impact of Intermittently Discharged Industrial Wastes on Municipal Treatment Facilities, INDUSTRIAL WASTES (Ann Arbor Science Publishers, 1982); numerous technical/expert reports

Dennis J. Krumholz, Morristown, New Jersey Riker Danzig Scherer Hyland Perretti LLP A.B., Oberlin College J.D., Boston College Honors: Named one of the best environmental lawyers in America for the last 13 years in The

Best Lawyers in America; ranked in the top tier of New Jersey's environmental lawyers by the Chambers USA: America's Leading Business Lawyers Client's Guide (2005-06); 2006 Who's Who Legal: USA for Environmental Law; Law & Politics magazine has named him one of New Jersey's "Super Lawyers" in environmental litigation and among the top 100 New Jersey lawyers in 2009

Government and Public Service: former Deputy Attorney General, State of New Jersey Memberships: New Jersey State Bar Association (Past Chair, Environmental Law Committee);

New York State Bar Association; INFORM (environmental research group) (Past Chair, Board of Directors); Regional Plan Association (New Jersey Committee)

Publications Include: Environmental Law: 2006 Cases Test Bounds of Agency Authority, N.J.L.J. (Dec. 4, 2006); Environmental Year in Review 2005, N.J. LWR. (Oct. 31, 2005); Environmental Year in Review, N.J. Lwr. (Nov. 29, 2004); Environmental Year in Review: Public Entities Prevail Over Builders, N.J. LWR. (Nov. 24, 2003); Is Time Never Up for Spill Act Claims?, N.J.L.J. (Feb. 2000)

Adam M. Kushner, Washington, D.C. Director, Air Enforcement Division, Office of Enforcement and Compliance Assurance, U.S.

Environmental Protection Agency (appointed 2004) B.A., Franklin & Marshall College; J.D., LL.M., Vermont Law School Other Government and Public Service: Former, Senior Counsel, Environmental Enforcement

Section, Environment and Natural Resources Division, U.S. Department of Justice; former Assistant Regional Counsel, Region 3, U.S. Environmental Protection Agency

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Edward Lloyd, New York, New York Evan M. Frankel Clinical Professor in Environmental Law, Columbia Law School B.A., Princeton University; J.D., University of Wisconsin Honors: Environmental Legacy Award (New Jersey Environmental Lobby, 2006); Outstanding

Environmental Achievement Award (Sierra Club, 2005); Ogden Award (Association of New Jersey Environmental Commissions, 2000); New York/New Jersey Baykeeper Award (2000)

Government and Public Service: New Jersey Public Interest Research Group (General Counsel, 1983- ; Staff Attorney and Executive Director, 1974-83); Eastern Environmental Law Center (Co-Founder and Co-Director); New Jersey Pinelands Commission (2002- ); Founding Director, Rutgers University Law School Environmental Law Clinic (1985-2000); New Jersey Supreme Court Committee on Environmental Litigation; Environmental Defense Fund Litigation Review Committee (1991- ); Conferee, New Jersey Governor's Conference on Electricity Policy, Planning and Regulation; Lecturer on environmental legal issues, Judicial College for New Jersey Judges; Trustee, Fund for New Jersey (2004- )

Memberships: New Jersey Environmental Voters' Alliance (Chair, Board of Directors, 1983-87) Publications Include: Supplemental Environmental Projects or SEPs Have Been Effectively Used

in Citizen Suits to Deter Future Violations as Well as to Achieve Significant Supplemental Environmental Benefits, 10 WIDENER L.REV. 413 (2004)

Andrew Nicholson, Boulder, Colorado Principal, Geomega, Inc. B.S., Michigan State University; Ph.D. (Geochemistry), Colorado School of Mines Government and Public Service: Geologist, U.S., Geological Survey (1988-90) Publications Include: Ground Water Chemistry, in GROUNDWATER AND WELLS (Smyth

Companies, 3d Ed., 2008); Apportioning Mining Waste ad a Superfund Site Using Four-Component Linear Mixing, Lower Area One, Butte, Montana, U.S.A. (Co-Author), 8 ENVIRON FORENSICS 107 (2007); Use of Geochemical Forensics to Determine Release Eras of Petrochemicals to Groundwater, Whitehorse, Yukon (Co-Author), 6 ENVIRON

FORENSICS 253 (2005) Honors: Graduate Fellow, National Science Foundation (1986-89) Vickie L. Patton, Boulder, Colorado Deputy General Counsel, Environmental Defense Fund B.S., University of Arizona; J.D., New York University School of Law Honors: Gold Medal for Exceptional Service, U.S. Environmental Protection Agency Government and Public Service: Office of General Counsel, U.S. Environmental Protection

Agency; Member, U.S. Environmental Protection Agency's National Clean Air Act Advisory Committee; Member, Initiatives Oversight Committee of the Western Regional Air Partnership

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Publications: Co-author, EPA's Regional Haze Proposal, "Protecting Visibility in National Parks and Wilderness Areas," 11 TULANE ENVTL. L. J. 299 (1998); The New Air Quality Standards, Regional Haze, and Interstate Air Pollution Transport, 28 ELR 10155 (April 1998); The Visibility Protection Program, THE CLEAN AIR ACT HANDBOOK (ABA 1997); A Balanced Partnership, THE ENVIRONMENTAL FORUM (May/June 1996)

Anthony Z. Roisman, Lyme, New Hampshire National Legal Scholars Law Firm, P.C. A.B., Dartmouth College; LL.B., Harvard University Adjunct Professor of Environmental Studies (1995- ), Luce Visiting Professor of Environmental

Studies (1982), and Research Fellow, Dartmouth College; Adjunct Professor, George Washington University National Law Center (1981)

Government and Public Service: Trial Lawyers for Public Justice (Founding Executive Director, 1982-87); U.S. Department of Justice (Land and Natural Resources Division: Special Litigator for Hazardous Waste, 1981-82; Chief, Hazardous Waste Section, 1979-81) (Appellate Section, Tax Division, 1974-67); Natural Resources Defense Council (Senior Staff Attorney, 1977-79); Nuclear Regulatory Commission Advisory Panel on Atomic Safety and Licensing Board Nominations (1980-85); Nuclear Regulatory Commission Ad Hoc Committee for Review of Nuclear Reactor Licensing Reform Proposals (1982-83); Committee on Nuclear Safety Research, Commission on Physical Sciences, Mathematics and Resources, National Research Council, National Academy of Sciences/Engineering (1985-86); Brookings Task Force on Civil Justice Reform (1989)

Memberships: District of Columbia Bar (Nominating Committee, 1977); Association of Trial Lawyers of America (Chair, Section on Toxic, Environmental & Pharmaceutical Torts, 1992; Environmental Law Committee, 1990- ; Co-Chair, Academic Liaison Committee, 1995- ; Chair, Expert Witness Admissibility Litigation Group, 2003- ); Environmental Policy Institute (Litigation Advisory Committee, 1984-1990); Environmental Action Foundation (Advisory Board, 1982-88); Environmental Law Center, Vermont Law School (Advisory Board, 1994-2004; Environmental Law Clinic, Vermont Law School (Advisory Board, 2005- )

Publications: Preserving Justice: Defending Toxic Tort Litigation (Co-Author), 15 FORDHAM

ENVTL. L.J. 191 (Winter 2004); The Implications of G.E. v. Joiner for Admissibility of Expert Testimony, RES COMMUNES: VERMONT’S JOURNAL OF THE ENVIRONMENT (1998); The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors, PACE ENVTL. L. REV. (FALL 1997); Nuisance and the Recovery of ‘Stigma’ Damages: Eliminating the Confusion (Co-Author), ENVTL. L. RPTR. (February 1996); Conflict Resolution in the Courts: The Role of Science, CARDOZO L. REV. (April 1994)

Craig B. Shaffer, Denver, Colorado U.S. Magistrate Judge for the District of Colorado (appointed 2001) B.A., College of William and Mary; J.D., Tulane University Adjunct Professor, University of Denver College of Law (2003- ); Instructor, University of

Colorado School of Law (1992-97); Lecturer, University of Phoenix, Colorado Campus

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(1994-2000) Other Government and Public Service: U.S. Department of Justice (Senior Trial Attorney,

Environment and Natural Resources Division, 1988-91; Senior Attorney, Criminal Section, Civil Rights Division, 1983-88); U.S. Navy (Senior Commissioner, Navy-Marine Corps Court of Military Review, 1980-83; Naval Legal Services Office, Naples, Italy, 1979-80)

Honors: U.S. Department of Justice (Special Achievement Awards, 1986, 1987, & 1990; Letter of Commendation from the Attorney General, 1988; Certificate of Commendation, 1988; Letter of Commendation, 1987); United States Navy (Navy Commendation Medal, 1980)

Memberships: Sedona Conference Advisory Board (2006- ); Colorado Lawyers Committee (Board of Directors, 1997-99)

Donald W. Stever, New York, New York K&L Gates LLP B.A., Lehigh University; J.D., University of Pennsylvania Professor, Pace University School of Law (1982-88); Visiting Professor, Dartmouth College

(1979-80) Honors: listed in The Best Lawyers in America for Environmental Law (2001 – present);

Chambers USA – America ’s Leading Lawyers for Business (2004 – present) Government and Public Service: U.S. Department of Justice (Senior Trial Counsel and Section

Chief, Environment and Natural Resources Division, 1978-82); Assistant Attorney General, State of New Hampshire (1969-79)

Memberships: Environmental Law Institute (Chair, Board of Directors, 1995-2003; Chair, Executive Committee, 1995-96 & 1999-2003; Board of Directors 1989-2004); Village of Sleepy Hollow, N.Y. (Village Trustee, 1997- 2004; Chair, Architecture Review Board, 2004-06); Friends of the Rockefeller State Park Preserve Inc. (Board of Directors, 1998- ); The Hudson Valley Writers' Center, Inc. (Board of Directors, 1988-; Chair, 2007- )

Publications Include: LAW OF CHEMICAL REGULATION AND HAZARDOUS WASTE (West Group, 1986 & Updates); LAW OF ENVIRONMENTAL PROTECTION / ENVIRONMENTAL LAW

INSTITUTE (Co-Editor) (West Group, 1987 & Updates); SEABROOK AND THE NUCLEAR

REGULATORY COMMISSION: THE LICENSING OF A NUCLEAR POWER PLANT (University Press of New England, 1980)

Kenneth J. Withers, Phoenix, Arizona Director, Judicial Education and Content, The Sedona Conference B.A., J.D., Northwestern University; M. Lib. Sci., Simmons College Government and Public Service: Senior Judicial Education Attorney, Federal Judicial Center

(1999-2006); Director of Education, Social Law Library, Boston (1997-99) Honors: Excellence in Technology Award (Glasser LegalWorks, 2004); Electronic Evidence

Thought Leadership Award (Kroll Ontrack, 2003); Lord Lloyd Kilgerran Award for best post-graduate essay in law and technology (British-Irish Legal Education Technology Association, 1999); Best Use of Technology Award (American Association of Law

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Librarians, 1998) Publications Include: "Ephemeral Data" and the Duty to Preserve Discoverable Electronically

Stored Information, 37 U. BALT L.REV. 349 (2008); THE RULE 26 CONFERENCE ON

ELECTRONIC DISCOVERY (Co-Author), Instructional DVD (Management of Electronic Records, 2006); They've Moved the Two Tiers and Filled in the Safe Harbor, FED. LWR. (Nov. 2005); Observations on the Sedona Principles (Co-Author), in THE SEDONA

CONFERENCE WORKING GROUP SERIES (2003); ELECTRONIC DISCOVERY: THE

CHALLENGES AND OPPORTUNITIES OF ELECTRONIC EVIDENCE (Federal Bar Association, 2001); Computer-Based Disclosure and Discovery in Civil Litigation, 2000 FED. CTS. L.REV. 2 and 2001 J. INFO L. & TECH. (UK) 1; Self-Deleting E-Mail: A Self-Delusion?, DISCOVERY EDGE (Fall 2000); THE INTERNET GUIDE FOR MASSACHUSETTS LAWYERS (Contributor and Editor, 1999); MANUAL FOR COMPLEX LITIGATION (Contributing Author) (Federal Judicial Center, 4th Ed., 2004); EFFECTIVE USE OF COURTROOM

TECHNOLOGY (Contributing Author) (Federal Judicial Center, 2001); CIVIL LITIGATION

MANAGEMENT MANUAL (Contributing Author) (Federal Judicial Center, 2001) David N. Zeehandelaar, Philadelphia, Pennsylvania Blank Rome LLP B.A., University of Pennsylvania; J.D., Villanova University Government and Public Service: Judge pro tempore, Philadelphia County Court of Common

Pleas; Philadelphia Mayor's Airport Advisory Board (Executive Committee) Memberships: American Bar Association; Camden County (N.J.) Bar Association; Defense

Research Institute (Publications Co-Chair, Aerospace Law Committee); Aircraft Owners and Pilots Association (Aeronautical and Space Law Committee); New Jersey Defense Association; Defense Research Institute; Lawyer Pilots Bar Association; National Transportation Safety Board Association; Pennsylvania Bar Association; Philadelphia Bar Association

Publications Include: PHILADELPHIA COMMON PLEAS CIVIL PROCEDURES MANUAL (Co-Author) (Pennsylvania Bar Institute, 1982)

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