ADMINISTRATIVE LAW

FALL 1992

Professor Light

 

Instructions: This is a three-hour, closed-book examination. Good luck

 

I.Ronoke Electric Steel ( One Hour )

 

Ronoke Electric Steel ( "RES" ) has operated an electric arc furnace at its plant in Ronoke, Florida, since 1955. The company uses the furnace to melt and reprocess scrap metal into steel bars used in building construction. A byproduct of the process is electric arc furnace dust ( "EAFD" ) . RES historically has disposed of its EAFD at the local municipal land fill under a contract with the City of Ronoke. In 1982, the United States Environmental Protection Agency ( "EPA" ) promulgated a regulation designating EAFD as a "hazardous waste. " EPA undertook this agency action under the procedures set forth in 5 U.S.C. ? 553. It held no public hearings of any sort on the proposed regulation . Under the f ederal Resource Conservation and Recovery Act ( "RCRA" ), hazardous waste may not be disposed of in a municipal landfill .

 

In 1984, RES ' engineers learned of EPA' s regulation and began to explore options for disposal of its EAFD other than use of the City' s landfill. They obtained a copy of the file for the 1982 rule and discovered that the reason the EAFD had been designated a hazardous waste was the presence of cadmium in the dust. Cadmium' s presence posed a danger to public health and the environment. The engineers were quite excited by this discovery because RES ' EAFD, unlike EAFD found at similar facilities run by other companies, does not contain cadmium. The proprietary reprocessing process RES uses is unlike any of the processes used at other facilities, including those upon which EPA had relied in promulgating its regulation.

 

Engineers and management at RES traveled to EPA headquarters in Washington, D.C. on November 3, 1984, and made a presentation to EPA policy and technical personnel in charge of EPA programs under RCRA. They described the RES proprietary process in detail, using confidential flip charts. EPA was much impressed; Assistant Administrator Rita Bombshell concluded the session by expressing the Agency' s commitment to encourage environmentally benign industrial processes such as that described by RES, which do not generate hazardous waste. After the meeting, RES continued to dispose of its dust at the City landfill .

 

On November 3, 1992, a Presidential election was held. On January 24, 1993, new EPA Administrator Hal Bore issued a Unilateral Administrative Order ( UAO ) to RES, alleging that the company had illegally disposed of hazardous waste at the municipal landf ill since 1955 and assessing daily penalties for the period 1955-1993. It also instructed that RES immediately cease and desist from generating any EAFD at its Ronoke facility .

 

RES' qeneral counsel wishes to challenqe the UAO. On behalf of the company, she retains you as an attorney in connection with the challenqe. Advise your new client as to its possible courses of action. What is your recommended approach?

 

The following are relevant provisions of RCRA:

 

Sec. 3001. Identification and listinq of hazardous waste.

(a) Not later than eighteen months after October 21, 1976, and after notice and opportunity for public hearing, the Administrator shall promulgate regulations listing particular hazardous wastes, which shall be subject to the provisions of this subchapter.

(b)(1) When evaluating a petition to exclude a waste generated at a particular facility from listing under this section, the Administrator shall consider factors other than those for which the waste was listed if the Administrator has a reasonable basis to believe that such additional factors could cause the waste to be a hazardous waste.

(2) To the maximum extent practicable the Administrator shall publish in the Federal Register a proposal to grant or deny a petition referred to in paragraph (1) within twelve months after receiving a complete application to exclude a waste generated at a particular facility from being regulated as a hazardous waste.

(c) No hazardous waste may be disposed of at any municipal landfill.

 

Sec. 3002. Civil proceedinqs.

(a) Review of any regulation promulgated under this chapter may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement.

(b) Except as provided in subsection (a), the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy.

 

Sec. 3003. Compliance orders.

Whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of this subchapter, the Administrator may issue an order assessing a civil penalty for any past or current violation in an amount not more than $25,000 per day for each day of violation, requiring compliance immediately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief.

 

II. Ames Tenure Dispute (One Hour)

 

Ames University School of Law is a state agency under the Ames Administrative Procedure Act, which is identical to the federal APA, 5 U.S.C. ? 551 et. seq. In past years, law faculty members applying for promotion and tenure all followed the same pattern. They applied for promotion from Assistant Professor to Associate Professor in their third year of teaching, which invariably was granted. They applied for tenure and promotion to full Professor in their sixth year of teaching. Some faculty members were granted tenure and/or promotion, while others were not.

 

During the academic year 1991-92, two faculty members applied for tenure and promotion to full professor. The first teacher, Dorothy, has taught administrative law and labor law at Ames School of Law for three years and is now in her fourth year of teaching. Having received a Ph.D. from the University of South Carolina in public administration in 1976, she taught public law and intergovernmental relations at Texas Moslem University for a year prior to attending Ivy Law School. She then practiced labor law as an associate for eight years at the nationally-recognized law firm of Skedadle Harp in New York immediately prior to commencing her law school teaching career at Ames.

 

The second professor, Dersh, has also taught at the Ames School of Law for three years. He teaches criminal law and procedure. He practiced with the United States Department of Justice for twenty years prior to beginning his teaching career at Ames School of Law. While with DOJ, he received ten awards for Meritorious Service and the Distinguished Service Commendation upon his retirement in 1989.

 

On February 14, 1993, the Ames Law School Committee on Promotion and Tenure issued a recommendation in favor of the granting of tenure and promotion to Dersh and against the granting of tenure and promotion to Dorothy. The Dean forwarded both recommendations to the University President along with his corresponding and identical recommendations. At no time was either Dersh or Dorothy asked to address the Committee nor were they advised of the likely outcomes or permitted to withdraw their applications. The University President concurred in the negative recommendations with respect to Dorothy but, citing monetary considerations, reversed the positive recommendations with respect to Dersh. Dorothy and Dersh have been sent terminal contracts, under which they may serve out the academic year at Ames. The Dean has informed both that their contracts will not be renewed for next year.

 

 

Advise Dorothy and Dersh concerninq their possible resPective courses of action. Be sure to consider the Ames regulations and memorandum appearing on the followinq two paqes:

 

 

 

Ames Law School Requlations Governinq Tenure and Promotion

 

I. Standards for Faculty Rank and Tenure

A. Professor - The rank should normally be reserved for persons with at least seven years of teaching experience, at least two of those seven years at Ames School of Law.

 

B. Associate Professor - The rank should normally be reserved for persons having at least three years of teaching experience, at least two of those three years at Ames School of Law.

 

II. Procedures

A. Authority - The authority to make recommendations to the Dean and University President as to tenure, promotion and reappointment of a Faculty member, shall be vested in a committee consisting of all tenured Faculty.

 

B. Time of Consideration

1. Tenure may be granted during a probationary period which shall not exceed seven calendar years, with notification of a decision as to tenure being made in the sixth year. Except in the case of individuals with extraordinary qualifications as a judge, legislator, government officer, diplomat, scholar or practitioner, candidates for tenure should have at least five years of law school teaching experience, with at least two of those five years at Ames School of Law.

 

2. Any faculty member may request consideration for promotion or tenure whenever that faculty member believes he or she has attained the qualifications set forth in these regulations.

 

C. Procedures

 

1. The Committee of tenured faculty shall decide whether to recommend the candidate for promotion or tenure. The Dean shall forward such recommendations, reports and materials to the University President, adding also the Dean's own independent recommendations. The University President and Trustees shall act upon the recommendations.

 

2. Appeals from a negative decision of the committee of tenured Faculty of from a failure of the Dean to join in the recommendation of the relevant committee, shall be made to the University President following such procedures as the University shall provide.

 

 

 

 

Appendix --

AMES UNIVERSITY SCHOOL OF LAW

 

 

MEMORANDUM

TO: Non-Tenured Faculty

FROM: Chair, Promotion & Tenure Committee

RE: Applications for Promotion or Tenure

DATE: September 17, 1991

A question has arisen as to the practices of the Committee in a situation in which a member of the faculty applies for promotion or tenure prior to the mandatory year designated in the Regulations. Under my reading of these Regulations, a negative decision as to promotion or tenure does not imply a decision or recommendation not to reappoint the faculty member. Neither does an adverse decision concerning promotion or tenure preclude a faculty member from applying for or receiving promotion or tenure in a subsequent year. This memorandum memoralizes the relevant practices based on the discussion during today's Committee meeting.

Whether or not the Regulations allow for multiple successive applications for promotion or tenure, an adverse recommendation or decision after the extensive review which the Committee undertakes in acting on such applications, as a practical matter, often may influence the recommendation or decision as to Reappointment. As a result, in all cases, both the Committee and the Dean have committed themselves to advising each candidate of his or her status during the period in which the candidate's application for promotion or tenure is pending. This procedure applies whether or not consideration occurs during the mandatory review year.

Under this procedure, after a candidate is advised of his or her status during the course of consideration, the candidate has a right to withdraw his or her application and to reapply in any subsequent year in which he or she is eligible. The intent is to encourage faculty members to apply for promotion or tenure "whenever that faculty member believes he or she has attained the qualifications set forth in" the Regulations.

 

III. Short Answer (One Hour)

The State of Bali Hai grants tenure to certain university professors. However, the statute also provides that such professors may be discharged if they engage in conduct disruptive to the learning process of the institution. The university seeks to discharge Anita, a tenured professor, on the grounds that she instigated a demonstration which impeded the operations of the university. The statute provides for a hearing only after discharge, not before. Anita demands a hearing before discharge.

1. Is she riqht?

The Department of the Interior orders an immediate cessation of surface mining which it alleges to be in violation of the federal act it administers regarding such mining. The Department alleges that the company's mining poses an imminent danger to public health and safety. The company disputes this conclusion and instead believes that its operation is in compliance with a valid permit.

2. Is the company entitled to iudicial review of the cessation order prior to the order's effective date?

A federal statute provides for payment of benefits to disabled veterans. It also provides that if the Veterans Administration learns that the disability has ceased, the benefits may be terminated. Following termination, the veteran may obtain a hearing upon his written request. The VA halts your payments without notice.

 

Is this procedure invalid because your benefits were terminated before your hearinq?

At the hearinq, are you entitled to confront and cross- examine witnesses assertinq you are no lonqer disabled?

The Federal Communcations Commission sets rates for telephone companies. The statute provides that in connection with this rate-setting, the agency must grant a hearing on the record. The FCC sets new rates but denies the company a right to crossexamine the FCC's expert witness.

5. Is this procedure valid?

Horowitz brings an action challenging her dismissal as a student from a state medical school. The dismissal is based upon faculty dissatisfaction with her clinical performance. Horowitz received no hearing prior to or after the dismissal.

6. Is the procedure valid?

The FTC has power to restrain corporations from unfair methods of competition. It promulgates a regulation banning advertisements on television aimed at inducing children to buy unhealthy cereals in order to receive "prizes" in the box. After a challenge by Postkeg cereals, the regulation is upheld in the D.C. Circuit. Postkeg continues its advertisements despite its defeat. Your child dies of sugar overdose after he surreptitiously purchases a box of "Sugar Boost" cereal, manufactured by Postkeg.

7. May You sue to compel the FTC to prosecute Postkeq for violation of the FTC's rule?

A federal statute provides that the Environmental Protection Agency may, through administrator order, compel owners of property at the time hazardous substances were disposed to remove the substances from the property which have been released into the environment. An owner is not liable when the release was solely caused by an Act of God. The statute does not outline procedures for issuance of such orders. The statute provides, however, that any liable party who does not comply with the order is subject to fines in an amount up to $25,000 per day. EPA unilaterally issues you an administrative order as a past owner of Blackacre. The release EPA believes requires removal was caused by lightning striking your warehouse on Blackacre. EPA also places a lien on your property, pursuant to statutory authority, to secure payment of any cleanup costs it may incur as a result of your refusal to comply with the order.

8. Are you liable for daily fines which accrue from the date you receive the order but before you have the opportunity to raise your defense to liability?

9. Is the lien valid?

Joe was a clerk at the Library of Congress. His contract of employment provided no protection and that he could be discharged at any time. The library proposes to fire him for the reason that he has been stealing books. Joe says this isn't true. The government asserts that there is no right to a hearing.

10. Is the qovernment riqht?

 

 

 

 

Have you answered all the questions?

I. Ronoke Electric Steel - One Hour

II. Ames Tenure Dispute - One Hour

III. Short Answer - One Hour