重大环境污染事故罪相关问题探析——兼论不处理垃圾罪的增设

重大环境污染事故罪之危害行为既可以是作为形式又可以是不作为形式,当排污主体不具有排污权或虽具有排污权但没有能力处理废物达到排污标准的情形时,排污这种危害行为是作为的形式,当具有排污权并有能力处理废物达到标准而超标排污时,则危害行为表现为不作为的形式。建议对《刑法》第338条进行增设危险犯、条文表述以及刑罚设置等进行修改,增设第2款,对有放射性废物、含传染病病原体的废物、有毒物质或者其他危险废物之外的废物所造成重大环境污染事故,或者致使公私财产遭受重大损失、人身伤亡的严重后果的行为进行规制,并增设不处理垃圾罪,以加强相关机构和人员的环保责任。     

Criteria for Allocation of Responsibility under State Law

Numerous state statutes provide guidance for allocating responsibility and response costs among potentially responsible parties at environmentally contaminated sites. Twenty-eight states explicitly or implicitly address joint and several liability; thirty states address allocation criteria; and two states identify how orphan share costs are shared. Of the thirty states that address allocation criteria in their statutes, twenty-four specify one or more criteria that may be applied to avoid joint and several liability, and twenty-nine permit the allocation of responsibility using unspecified equitable factors. The state allocation criteria tabulated and discussed in this article can be used by counsel and their technical consultants and experts to assess which, if any, state-specific criteria are most applicable to a particular site, given the technical, historical, financial, and regulatory information that may be available for that site.     

Hazardous waste management system standards for owners and operators of hazardous waste treatment, storage, and disposal facilities and EPA administered permit programs; hazardous waste permit program. Environmental Protection Agency. Interim final amendments to rule

On May 19, 1980, EPA promulgated regulations applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities which prohibited the landfill disposal of most containerized liquid waste or waste containing free liquid on and after November 19, 1981. Further on June 29, 1981, EPA amended its hazardous waste management regulations so as to extend the compliance date of the restriction on the landfill disposal of containerized liquid ignitable wastes to coincide with the compliance data of the general restriction on landfill disposal of liquids. The Agency is today extending the compliance date on both these requirements until May 26, 1982, and, in a separate action, is proposing amendments to these restrictions. This extension of compliance dates is provided for the sole purpose of allowing time to complete the rulemaking action on today's proposed amendments. The Agency is also today exempting from the requirements of the hazardous waste management regulations, the acts of adding absorbent material to hazardous waste in containers and adding hazardous waste to absorbent material in a container, at the time waste is first placed in the container, in order to reduce the free liquids in a container.     

Center for Biological Diversity v U. S. Forest Service: A New Type of Claim or Just Another Step in the Chain of Causation?1

Abstract

This article discusses what it means to “contribute” to waste disposal as that term is used in section 7002 of the Resource Conservation and Recovery Act. More specifically, the article examines whether the US Forest Service can violate section 7002 by not regulating hunting. Among the issues addressed are whether one can contribute to waste disposal passively, whether one can contribute to waste disposal without taking any action that addresses waste disposal and the extent to which the statutory term “contribute” is analogous to the common law concept of causation.     

How liable should an exporter be?: The case of trade in hazardous goods

This paper analyzes liability issues in the context of internationally traded goods like hazardous waste. It focuses on waste disposers of a small open economy that are judgement-proof due to either wealth constraints or regulatory liability limits. In this case, the extension of liability to waste exporters distorts the factor allocation and may reduce disposal care. Hence the optimal extension is partial at most. However, extending liability increases incentives of the waste importing country to hold domestic disposers liable. Interaction through the price system and through contracts that condition payments for disposal services on the occurrence of an accident yield identical outcomes if disposers are judgement-proof.     

Interim status standards for owners and operators of hazardous waste treatment, storage, and disposal facilities: Environmental Protection Agency. Proposed amendments to rule

On May 19, 1980, EPA promulgated regulations, applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities during interim status, which prohibited the landfill disposal of most containerized liquid waste or waste containing free liquid on and after November 19, 1981. As a result of issues raised by the regulated community with respect to this prohibition, the Agency is today proposing an amendment to this regulation to allow some containers holding free liquids to be disposed of in a landfill, in some circumstances. In a separate action in today's federal Register, EPA is providing a 90-day extension (from today's date) of the compliance date for the prohibition of landfill disposal of containerized liquid waste and the restrictions on the landfill disposal of liquid ignitable waste to allow time to complete this rulemaking action and to avoid immediately imposing requirements that might be changed as a result of this rulemaking action.     

The effect of joint and several liability under superfund on brownfields

To encourage redevelopment of potentially contaminated sites (or “brownfields”), various programs protect purchasers of such sites from Superfund liability. This protection may be unwarranted, however, if sellers can reduce property prices to compensate buyers for this liability. We identify four previously overlooked effects of joint and several liability under Superfund that may discourage sales. Thus, the brownfields problem may be more widespread than the prior literature suggests. Furthermore, the effects we identify may distort any decision of anyone subject to any joint and several liability if that decision may affect the number of other parties liable for the same harm.     

论处分查封之物的法律效力

在财产被查封的情形,被执行人或所有权人擅自处分查封之物的,不得对抗执行申请人。查封的对抗效力是法律直接规定的结果,同处分权能和合同效力无关。查封不影响被执行人或所有权人的处分权,也不影响处分查封之物基础合同的法律效力。查封具有禁止处分的法律效果,即被执行人或所有权人不得擅自处分查封之物,否则可能引发公法上的责任。在擅自处分查封之物时,善意取得与公示对抗是两种保护善意第三人的模式。从立法论的角度来看,善意取得规则不应也无须适用于查封之物,否则会影响体系融贯,并导致制度重叠问题。查封制度具有独立的善意第三人保护规则,即查封的公示对抗规则。在公示对抗规则之下,执行申请人和善意第三人的利益得到了妥当平衡。     

涉案财产处置程序的完善——以审前程序为视角的分析

近年来,中国司法同时步入扫黑除恶和企业产权保护的元年,针对审前程序中涉案财物处置乱象问题,有必要厘清与规范涉案财物处置相关的制度与程序,强化民营企业产权司法保护。应当正确界定涉案财产的概念与范围,合理把握涉案财物的处置方式和处置标准,在区分程序性处置和实体性处置的基础上,从职能、权力和程序三个方面强化审前涉案财产处置的控制体系。为了应对实践中存在的处置任意化、程序偏行政化、移送和保管混乱等问题,应以取证规范化为基础强化涉案财物的审查认定,丰富涉案财物的保全措施体系,对审前处置程序进行正当化改造,建立和完善涉案财产集中管理制度。     

Guilty by Association? The Case of The Karin B Scare

The waste disposal industry is susceptible to bad publicity owing to the nature of the products it is sometimes required to process. At particular risk are companies which treat and dispose of hazardous substances. In this paper we test whether media concerns about public safety arising from the international transfer of hazardous wastes can have a negative impact on the stockmarket valuation of firms and of the waste disposal industry as a whole, even when the affected companies have not themselves broken the law.     

涉黑企业财产的处置探讨

涉黑企业财产的处置是有效打击黑社会犯罪和维护社会稳定的重要问题。国内外对涉黑企业财产处置的模式,为我们提供了我国目前涉黑企业财产处置问题的对策和建议,即完善我国财产刑的设置和财产处置的具体适用机制。     

The National Partnership for Environmental Priorities Program

The National Partnership for Environmental Priorities (NPEP) program was created by the U.S. Environmental Protection Agency (USEPA) to reduce or eliminate the nation's production of hazardous wastes and products. The NPEP is a voluntary program that provides incentives to public, private, and federal organizations that minimize their use and generation of thirty-one priority chemicals. These chemicals are considered to be persistent, bioaccumulative, and toxic in the environment and present health risks to human and ecological receptors. The USEPA estimates that 90 percent of priority chemicals are used or produced during manufacturing of various household and industrial products and, as a result, end up in municipal and industrial waste streams. Ultimately, these chemicals find their way back into the environment through wastewater discharges, incineration, or other disposal practices. The NPEP program supports the goals of the National Waste Minimalization Program by encouraging simple waste minimalization solutions such as recycling, replacement, or elimination of wastes or products that contain priority chemicals, and cradle-to-cradle management of waste. Although the USEPA does not limit waste minimalization practices to only the priority chemicals, the program has set specific goals to track the elimination of these thirty-one chemicals to the environment on an annual basis.     

Interim status standards for owners and operators of hazardous waste treatment, storage, and disposal facilities--Environmental Protection Agency. Interim final rule and interim final amendments to rules and request for comments

The Environmental Protection Agency [EPA] has issued standards applicable to owners and operators of hazardous waste management facilities as required by the Resource Conservation and Recovery Act [RCRA]. One of these standards bans the disposal of most containerized liquid hazardous waste in landfills, effective November 19, 1981. As a result of reconsideration of this restriction, EPA is today promulgating an interim final rule to allow the disposal of small containers of liquid and solid hazardous waste in landfills provided that the wastes are placed in overpacked drums [lab packs] in the manner specified in today's rule. The purpose of today's rule is to provide an environmental sound disposal option for generators of small containers of hazardous wastes, such as laboratories.     

Biomedical waste disposal--Nuclear Regulatory Commission. Final rule

The NRC is amending its regulations to permit licensees greater leeway in disposing of liquid scintillation media and animal carcasses containing tracer levels of hydrogen-3 (tritium) or carbon-14. These rule changes will primarily affect NRC licensed hospitals and medical research institutions. Most licensees presently dispose of these items by sending them to a radioactive waste burial ground or by obtaining special authorization from NRC for incineration or onsite burial. Under the new regulations, the licensee may dispose of specified concentrations of these materials without regard to their radioactivity. The NRC is also amending its regulations to raise the annual limits for disposal of hydrogen-3 and carbon-14 by release to the sanitary sewerage systems. The rule changes will conserve waste burial capacity that is already in short supply.     

Impact of Biomedical Waste on Environment and Human Health

Abstract

This article reviews the impact of biomedical waste on water, soil, air quality, the environment, and human health. Hospitals and nursing homes generate increasing amount of biomedical waste in an unscientific manner. As such, poor waste management practices by these institutions cause exposure to health hazards and actual environmental problems. The issue of biomedical waste identification, handling, and disposal needs to have a heightened review so that better management practices and protocols can be established.     

生产者延伸责任的扩张性解释

生产者延伸责任是指生产者就其生产的产品在整个生命周期对环境的影响应承担的责任。生产者除应承担传统经济、行政法上的产品质量责任、民商法上的产品侵权责任(包括环境侵权责任)外,其责任还必须延伸至原材料的选用、产品设计、产品生产、废弃产品的回收和循环利用与最终处理阶段,以实现环境保护和资源的节约与合理利用。生产者延伸责任产生的制度渊源是环境法上的生产全过程控制治理模式,思想理论渊源是循环经济理论。     

The traffic in garbage and hazardous wastes: an overview

The traffic in garbage and hazardous wastes is a huge illicit transnational business that involves a wide array of criminals, including private entities, corrupt public officials, and organized crime groups. The traffic in CFCs and radioactive materials and the chemical by-products of illicit crop cultivation and production are related problems with significant negative environmental and social consequences. Inelastic demand, price differentials among industrialized and developing nations, corruption, incongruent international regulations, a lack of political will, and the emergence of waste brokers are all factors that drive the illegal trade and inhibit law enforcement. While regulatory and criminal justice efforts have been mostly ineffective, technological innovations that reduce waste and the costs of safe disposal may limit opportunities for waste traffickers. The right mix of subsidies and taxation as well as monitoring and compliance at the local level could make legal disposal more attractive, and thus further inhibit criminal opportunities.     

CERCLA Arranger Liability: Town of Islip v. Datre: What Intent is Required?

In Town of Islip v. Datre, the court dismissed a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claim based on failure to allege that the defendant knew that the waste it disposed of was hazardous. The court based its decision on language in the Supreme Court's decision in Burlington Northern that indicated that to be liable under CERCLA as one who arranged for disposal, there is a knowledge or intent element. This article questions the Datre decision and argues that the “knowledge” required by the Burlington Northern Court is knowledge that the transaction is a disposal, not knowledge that the waste disposed of is hazardous.     

财产权多元论与知识产权的非人权性

知识产权的核心特征在于它的虚拟性。以物质财产（权）为基础与核心,以财产权的物质性与消费性特征为参照,财产权分为实物性、可预期性和机会性财产权三类,构成财产权＂三元论＂体系。以人类生活之必需性为参照,财产可区分为基本与非基本财产两部分;进而,在基本人权的框架下,两种财产分别属于人类基本权与非基本权,这是＂二元论＂财产权体系。知识产权分别属于三元论体系中的机会性财产权和二元论下的非基本权。人权即人类基本权,是自然人之生存所必需的、普遍的、不可移转或剥夺的权利,是人人生来就有的生存与生活的资格,而不是源自法律的赋予。知识产权不具有这些属性。     

诈骗罪中的处分行为

诈骗罪中的处分行为是没有记载的构成要件要素,是区分盗窃罪和诈骗罪的关键。处分行为,是指被害人基于认识错误而“自愿”地交付财物或处分财产性利益的行为。诈骗罪的成立需要有处分意思,但是,作为处分行为的主观要件,被骗者应当认识到何种程度,即处分意思究竟包括哪些内容便有待探讨。处分意思的内容要求财产处分者对所处分的财产性质、种类、数量、价值有完全的认识,还是只要认识到财产的外形的转移即可,抑或只要具有某种中间形态的认识内容即可？其实,只要被骗者认识到自己的行为是把某种财产转移给对方占有,而根据自己的“自由”意思作出这种决定,就应当认为已经具备了处分意思的内容。