Hazardous Waste Victim Compensation: The Report of the § 301(e) Superfund Study Group: A Response to Theodore L. Garrett

Frank P. Grad

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— The Editors

Mr. Grad, Chamberlain Professor of Legislation at Columbia Law School, was the CERCLA § 301(e) Study Group's reporter.

[13 ELR 10234]

The report of the § 301(e) Superfund study groupwas completed in June 1982, and was published in August of that year. As reporter for the study group, I have been involved in many discussions, roundtables and debates during the past 15 months. I have concluded that my first task, invariably, is to rescue the report from the rewrite it has experienced at the hands of its critics.

The report, INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES,¹ was not the work of a small group of anti-industry lawyers. The study group was established under federal law, which directed that the American Bar Association, the American Law Institute, the Association of American Trial Lawyers, and the National Association of State Attorneys General should each have its president select three members from the organization to conduct the study. An examination of the list of members of the study group and their appointing organizations,² shows that the study group was diverse, with several plaintiffs' lawyers, several defendants' lawyers, several government lawyers, and some academicians making up the roster. In fact, one truly amazing outcome of the study was that a group as diverse as this achieved agreement on the report and on virtually all if its major recommendations. There were some few additional views, but they did not undercut the essential findings and recommendations. I shall comment on this at the appropriate time, but suffice it to say that it is a disservice to pretend that the report is a minority report unsupported by the study group as a whole. A simple reading and consideration of the additional views clearly substantiates this point.³

It is also a disservice to treat the report as a minor effort, thus forming the basis for the inevitable recommendation that more research and more analysis needs tobe done. Obviously, more research and analysis can always be done, and I expect and hope that more will be done before final victim compensation legislation is drafted. In accordance with the detailed congressional instructions in § 301(e) of the Comprehensive Environmental [13 ELR 10235] Response, Compensation, and Liability Act (CERCLA or Superfund), the study group spent a full year's research on the assigned subject to determine the nature, adequacy and availability of pathways to recovery. These and other subjects assigned in the federal legislation were thoroughly studied, and drafts of supporting memoranda of law and of the final report were prepared by the Legislative Drafting Research Fund at Columbia Law School for discussion, revision, and final adoption by the study group. The first volume of the final report includes the group's analysis of existing legal problems and its recommendations. It consists of 283 pages and some 75 pages of additional views (some favorable, some critical). The second part consists of 405 pages of detailed research memoranda, and, in addition, some 50 pages of separate research prepared under the direction of George C. Freeman, one of the members of the group. Thus, though the report has been described by this reporter as a step in an incremental process, it is a significant step.

Theodore L. Garrett in his critique, The Need for Victim Compensation Legislation, credits the Superfund study group with "launching" the debate as to whether and how to compensate persons injured by exposure to hazardous wastes, and he asserts that current interest has been "propelled" by a number of other recent developments, incuding loss of confidence in the Environmental Protection Agency (EPA) and the "asbestos litigation explosion."⁴ I wish the Superfund study could take credit for developing all this interest, but it had been around long before. There had been the many years of experience with occupational exposure to hazardous chemicals, most of which find their way into disposal sites, including substances such as dioxin, kepone, and a variety of other pesticides, heavy metals, PCBs in the Hudson, PBBs in Michigan, and then, Love Canal.⁵ The Environmental Law Institute had prepared its SIX CASE STUDIES in 1980 and the Council on Environmental Quality (CEQ) had reported on hazardous wastes since 1977 and even earlier. In addition, the Justice Department had gone after improper disposal sites under § 7003 of the Resource Conservation and Recovery Act (RCRA) quite some time before CERCLA was enacted.⁶ Their rather widely publicized activities involved substances in disposal sites regarded as posing an imminent hazard to health and the environment. Moreover, the concern for victim compensation had long been documented in Congress. While Mr. Garrett is right in saying that Congress could not agree on victim compensation when it passed CERCLA, this is only half the tale. The lame duck session of Congress, after the election of Ronald Reagan, could do little more than adopt a compromise Superfund law and did not wish to tackle the contentious subject of victim compensation. So tenuous was the compromise bill that it could not even be resubmitted for technical amendments for fear that earlier agreements would come apart. On the other hand, S. 1480, which did provide for limited victim compensation, was introduced in July 1979 and was adopted by the Senate on November 24, 1980. It is disingenous to assert that concern for victim compensation is either novel or the construct of good newspaper stories. Why, indeed, was CERCLA passed? There would be little point in authorizing $1.6 billion for cleaning up hazardous waste sites unless there was a congressional concern for human health, and for avoiding future human exposures.

The public and congressional concern for victim compensation was also fueled by loss of confidence in EPA. This loss of confidence was paralleled by a similar loss of confidence in certain parts of industry that stood to gain from inadequate EPA enforcement. There was more of a loss of confidence with recurring newspaper reports of careless disposal practices, and with reports that even respectable segments of industry sometimes hired dubious contractors to handle the job of waste disposal for them.

While the asbestos industry is not part of the chemical industry, the asbestos story has had the effect of stimulating the concern over hazardous waste exposures. Both share long latency periods, and in both instances there was at first a denial of ill effects.There was a "show me" attitude, and as with all exposures that produce latent injuries, there was nothing to show for15, 20 years, or even longer. Perhaps hazardous waste exposure today is in the same situation as asbestos exposure 20 years ago. Now that asbestos exposures have come to fruition, the reaction of the asbestos industry has been first to seek the shield of bankruptcy and then to urge the adoption of a victim compensation plan to be financed by the government?

Mr. Garrett's critique refers to Part II of the report, which does acknowledge technical and scientific uncertainty relating to the hazardous waste problem. But the report does not "in effect" acknowledge "that its recommendations are not built upon a foundation of reliable data documenting the scope of the problem."⁷ [13 ELR 10236] Appendix J refers to every incident and legal action known at the time the study was prepared. It is a very substantial story of mismanaged waste disposal and it points to many actual injuries in occupational and nonoccupational settings. The problem is not so much an absence of data, but a lack of quantification. Just as in the asbestos and radiation areas 20 to 30 years ago, we do not have a body count. It should be added, however, that it was on the basis of data like that presented in Appendix J that Congress saw fit to enact Superfund. If the evidence was sufficiently persuasive to support the enactment of a law to spend large amounts on hazardous waste cleanup and on remedial activities to restore the environment, it should be persuasive enough to provide the basis for a law to compensate victims. Not only the majority of the members of the study group, but also a number of members of Congress have accepted this rationale.⁶

As the Superfund § 301(e) report has indicated, there were no substantial remedies that would provide for the compensation of persons who suffered personal injuries as a result of exposure to hazardous waste, except for occupational exposure.⁹ Just before the study was completed, California passed a victim compensation law,¹⁰ and since then, on May 10, 1983, Minnesota enacted its victim compensation statute.¹¹ Aside from these spotty developments, however, legislation has afforded little promise of recovery for injured persons. Not only is there little substantive legislation to afford victims a cause of action, but the Supreme Court has also dashed their hopes for recovery on a theory of an implied cause of action arising out of pollution control legislation. The notion of implied rights, once a sensible and practical notion, has been so narrowly construed by the Court¹² that a plaintiff can no longer hope to take advantage of "implied" rights. Thus, legislation does not currently provide a remedy for persons hurt by environmental and hazardous waste pollution.

This relegates the person injured by exposure to hazardous wastes to common law remedies, and these are explored in some detail in the study group report. The 50 systems of common law in each of 50 states do provide theoretical remedies, and clearly an action based on strict liability would usually seem appropriate. There is no assurance, however, that all states would apply strict liability, and as Mr. Garrett properly notes, the report points to several theories of strict liability, some of which impose strict liability in name only.¹³ Strict liability does seem to afford the most appropriate cause of action, because to prove trespass or negligence 20 or more years after the event of exposure is a theoretical possibility at best. But even strict liability shares overwhelming problems with other common law causes of action. Leaving out the problem of short statutes of limitations in such forward-looking states as Alabama and New York that have not yet adopted the discovery rule, there remain enormous problems in finding the responsible defendant and in establishing proof of causation. With long latency periods, the two problems are linked and each enhance the difficulty of proving the other. As the RCRA § 7003 cases have shown again and again, waste sites have changed ownership frequently in the past 20 or 30 years, and each successive owner has dumped its own hazardous waste. To sort out which owner is responsible, and which of a variety of sophisticated wastes caused a particular injury, may present enormous difficulties of proof and may present overwhelming obstacles to the recovery of just claims.

To Mr. Garrett and industry spokesmen, "existing common law rules may well represent a nearly optimal balance of equities — at least as between plaintiffs and defendants."¹⁴ He makes this point having said earlier that "[l]ittle fairness results from shifting the losses from innocent plaintiffs to innocent defendants"¹⁵ and also, that "one may question whether the protections currently available to defendants are not justified. The unavailability of proper defendants does not justify proceeding against improper ones."¹⁶

These are sound principles as far as they go, and I always like to be assured that the small wage earner or the small homeowner are equal before the law with Hercules, Vector, and the other major chemical manufacturers. But as a practical matter, the fact that one litigant has the means to hire an array of experts and the other has not may make some difference. Moreover, a large company is able to engage in protracted litigation, while an injured plaintiff who relies on his weekly wages may not.

The likely disparity of means between plaintiffs and defendants persuaded the majority of the members of the study group that reliance on plenary court actions and on common law developments was not likely to solve the problem of victim compensation. The solution of the study group — the recommendation of a two-tier system consisting of the creation of a new federally established but state-run compensation plan, and the maintenance of [13 ELR 10237] plenary tort actions at Tier Two — reflects both an insight and a compromise. The insight is that there may be some very substantial claims for personal injuries, claims so extensive that it might be worthwhile for the plaintiff to mount the very major and costly evidentiary effort necessary to bring such a lawsuit. Such an effort would need to overcome all of the barriers the common law has erected, but in return the plaintiff would have a chance of recovering very substantial damages, not only for economic loss, but also for pain and suffering. Such a common law remedy would offer small hope of recovery to persons with lesser immediate injuries, whatever latent injuries might later emerge. Because of the likelihood of mass injuries as a result of past exposure, a remedy is necessary which is capable of dealing with a large number of claims of more modest proportions. Such claims would be taken care of most expeditiously at Tier One. It was part of the study group's compromise to accept each tier as addressing part of the problem, though different members of the Group were committed more strongly to one tier than the other.¹⁷

A few points addressed in the pending legislation and in the Superfund study are worth repeating. None of the proposals accept Mr. Garrett's suggestion that "traditional rationales supporting the existence of statutes of limitation"¹⁸ may be worth preserving even when they defeat a victim's claim before he even knew that he had one. Proposals for legislation and the study report also disagree with Mr. Garrett's analysis that to ease a victim's recovery by making proof of causation easier would also shift "the losses from innocent plaintiffs to innocent defendants."¹⁹ The question is not one of "innocence" but of social responsibility. Many of us find it difficult, particularly after reading scores of cases on improper waste disposal, to equate the "innocence" of a person who happens to live near a waste dump with the "innocence" of the chemical companies who for years dumped pesticides, solvents, corrosives, and other hazardous substances in poorly managed waste sites. Even though they may not have violated any express standards, the supporters of common law remedies ought to be receptive to the notion that creation of risks creates responsibilities and liabilities.

Finally, on the question of whether federal or state remedies are more appropriate, different answers are possible. But the chemical industry is a national industry. It is already subject to the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, RCRA, and other federal laws and regulatory standards. It seems quite reasonable that victim compensation, too, should be a matter of federal law, and not dependent on where the plaintiff happened to live or suffered an injury.

Appendix: Summary of Study Group Recommendations

The two-tier system recommended may be briefly summarized. The first tier provides a no-fault compensation system for personal injuries from exposure to hazardous waste. This compensation system is to operate under federal law and be managed by the state under a grant-in-aid scheme. The compensation plan would provide full recovery for a person's medical expenses, and with certain limits, recovery for two-thirds of a person's earnings. Death benefits for close surviving dependents would also be provided. In addition, an injured person would have the choice of proceeding with a personal injury claim under existing tort law, but the amount of the compensation award recovered by the claimant on Tier One must be deducted from any judgment or settlement in a Tier Two plenary action and repaid to the compensation fund. A person who recovers under both tiers would also bear certain heavy costs if the court found that the settlement award in Tier Two did not exceed the compensation award at Tier One by at least 25 percent. This provision was intended to discourage frivolous claims and to prevent claimants from collecting on Tier One in order to finance a gamble on Tier Two.It should be noted that though the study group unanimously recommended a two-tier approach, there was a division on the issue ofr access from Tier One to Tier Two. By a nine to three vote it was resolved that recovery at Tier One should not bar access to Tier Two.¹ Alternatives such as binding election between the two tiers were suggested by some individual members, while others recommended unlimited access to both tiers,² but the members of the study group realized that an unlimited dual recovery would substantially increase the costs of the system. Several members, though a minority, would have preferred to leave access to Tier Two to judicial discretion after compensation had been awarded at Tier One.³

The first and second recommendations provide for the scope of the compensation system and for the filing of claims. Compensation is to be provided for non-work related exposures to hazardous wastes emanating from sites, improper transportation, and spills. The coverage of the plan would thus be coextensive with that of CERCLA.⁴ Compensation would be available both for exposure to old, or even abandoned "orphan" sites (for which no opportunity for recovery exists because there is no responsible defendant), as well as to active or new sites.⁵

The third recommendation provides that claims must be filed no later than three years after the discovery of the injury and its cause, so as to take account of long latency periods.⁶ The provision would apply whether the discovery of the injury occurred before or after the effective date of the law that would establish the compensation plan. To establish a claim, the claimant must offer proof of exposure, proof of disease or injury, and proof of causation.⁷

Under the fourth recommendation, proof of causation is eased considerably by the adoption of two kinds of rebuttable presumptions. The first rebuttable presumption requires a showing that the defendant was engaged in an [13 ELR 10238] activity that involves hazardous waste, that the claimant was exposed to such waste, and that the claimant suffered a resulting injury.⁸ Upon proof that the claimant was exposed to a hazardous waste and suffered injury which is known to result from such exposure, the rebuttable presumption then arises that the exposure proximately caused the death, injury, or disease, and that the source of such exposure was responsible.⁹ Presumptive proof that the injury is known to result from such exposure could also be demonstrated by reliance on "Toxic Substance Documents," to be prepared by the federal agency authorized to administer the compensation system, on the basis of scientific data, and adopted in accordance with established administrative standards.¹⁰ Such documents, limited in their application to Tier One, could also be relied on to provide presumptive rebuttable proof of such other aspects of the disease as its disabling effect, likely duration, and other consequences. The issues of the applicability of presumptions and the easing of resulting proofs wer discussed at great length by the study group and in its report, and two members of the group, in the additional views, voiced strong reservations on the liberal use of presumptions, though they were accepted by the majority of the study group.¹¹

The fifth recommendation provides for compensation awards to cover medical expenses and two-thirds of loss of earnings (not limited to wages or salary). A current limit of $2,000 per month is suggested, which would amount to $24,000 per year — or about $36,000 before taxes — for as long as the disability continues. The amount would be reduced by collateral receipts from public sources such as Medicare and Medicaid. Pain and suffering would not be compensable, but the amount of compensation provided is intended to cover persons below the economic level at which they would be likely to provide for their own income protection by insurance. It would also encourage disposition of claims at Tier One rather than proceedings in Tier Two.¹²

The sixth recommendation provides for the grant-in-aid system. States that assume the administration of the program would be entitled to federal grants for 80 percent of the costs of its administration.¹³ The states would use their own compensation machinery, subject to federal review, to see that the aims of the program are achieved. After payment of compensation claims, the could assert the claim against the owner of the site, or against other responsible parties.¹⁴ However, to avoid problems of retroactivity, it is recommended that subrogation claims apply prospectively only — i.e., there is no subrogation for claims that arose prior to the effective date of the recommended law.¹⁵ Older claims — such as claims growing out of orphan sites — would be paid out of the fund without subrogation.¹⁶

The seventh recommendation provides for the creation of a fund from taxes on crude oil and chemical feed stocks, following the Sueprfund scheme. In addition, collections from subrogated claims would also be paid into the fund.¹⁷

Judicial review is provided for in the eighth recommendation with the adequacy or denial of compensation reviewable in the state courts and questions of compliance with federal law in the federal courts.¹⁸

The ninth and tenth recommendations discuss the Tier Two proposal, suggesting that the states undertake certain revisions of common law and statutory remedies. The adoption of the discovery rule is recommended in the states that have not taken that step. Liberal joinder rules are also recommended, to allow complex issues of causation and liability to be tried together.¹⁹ A review of rules of apportionment of damages is recommended, as well as the adoption of a rule of joint and several liability²⁰ to deal with situations in which more than one party contributed to the condition. It is also recommended that the burden of apportioning damages be shifted to the defendants proven to have contributed to the injury, thus expanding the concept of "concert of action."²¹ The report also recommends that the respective responsibilities of successive landowners be clarified. Strict liability, in its full sense, is recommended as the most appropriate doctrine.²² The application of class suits in Tier Two personal injury claims is rejected,²³ as is the application of the Tier One rebuttable presumptions.²⁴

The tenth recommendation applies to actions for environmental and private property damage. In the main, it follows the ninth recommendation, except that class actions may be appropriate in such property damage actions.²⁵ The recommendation also makes the point that in certain circumstances the kind of remedial action provided under the Superfund legislation may be more appropriate and less expensive than large numbers of private damage actions. Thus, it may be socially more desirable to provide a new water system for an area than to pay off individual owners for the loss of the wells.²⁶

1. S. COMM. ON ENVIRONMENT AND PUBLIC WORKS, INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES: A REPORT TO CONGRESS IN COMPLIANCE WITH SECTION 301(e) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATIOIN, AND LIABILITY ACT OF 1980 (P.L. 96-510) BY THE SUPERFUND SECTION 301(e) STUDY GROUP, S. REP. NO. 97-12 (97th Cong., 2d Sess. 1982) (hereinafter cited as STUDY GROUP REPORT).

2. The members of the study group designated by the American Law Institute were: the Honorable Charles D. Breitel, Counsel, Proskauer, Rose, Goetz & Mendelsohn, New York, former Chief Judge of the New York Court of Appeals; Jeffrey O'Connell, Professor of Law, University of Virginia Law School; and Frank P. Grad, Chamberlain Professor of Legislation, Columbia University School of Law. The members designated by the American Bar Association were: Weyman I. Lundquist, Esq., Heller, Ehrman, White & McAuliffe, San Francisco; Frederick R. Anderson, Professor of Law, University of Utah College of Law; and George Clemon Freeman, Jr., Esq., Hunton & Williams, Richmond, Virginia. The members designated by the American Trial Lawyers Association were: Richard F. Gerry, Esq., San Diego, California, President of A.T.L.A.; Norman J. Landau, Esq., New York; and Frederick M. Baron, Esq., Dallas, Texas. The members designated by the National Association of Attorneys General were: Rufus L. Edmisten, Attorney General of North Carolina; Warren R. Spannaus, Attorney General of Minnesota; and James R. Zazzali, former Attorney General of New Jersey.

3. See Comments on the Report, STUDY GROUP REPORT, supra note 1, at vol. 1, p. 284.

4. Garrett, Compensating Victims of Toxic Substances: Issues Concerning Proposed Federal Legislation, 13 ELR 10172, 10172 (June 1983).

5. See Appendix J, STUDY GROUP REPORT, supra note 1, at vol. 2, p. 215. This appendix presents 48 pages of tables, charts and maps gleaned primarily from 10 years of reports by the Council on Environmental Quality and from the Environmental Law Institute's 1980 publication, SIX CASE STUDIES OF COMPENSATION FOR TOXIC SUBSTANCES POLLUTION: ALABAMA, CALIFORNIA, MICHIGAN, MISSOURI, NEW JERSEY, AND TEXAS: A REPORT PREPARED UNDER THE SUPERVISION OF THE CONGRESSIONAL RESEARCH SERVICE OF THE LIBRARY OF CONGRESS FOR THE COMM. ON ENVIRONMENT AND PUBLIC WORKS, S. REP. NO. 96-13 (96th Cong., 2d Sess. 1980) (hereinafter cited as SIX CASE STUDIES). The data describes the documented health effects of exposure to an array of toxic substances, whether through the workplace or otherwise, and also describes some of the resulting litigation See also Reserve Mining Co. v. United States, 498 F.2d 1073, 4 ELR 20598 (8th Cir. 1974); In re "Agent Orange" Product Liability Litigation, M.D.L. No. 381, 506 F. Supp. 762 (E.D.N.Y. 1980); Quellette v. International Paper Co., 86 F.R.D. 476 (D. Vt. 1980); Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (E.D. Va. 1980), cited in F. GRAD, TREATISE ON ENVIRONMENTAL LAW at ch. 4A (Supp. 1983).

6. See, e.g., United States v. Diamond Shamrock Corp., 12 ELR 20819 (N.D. Ohio May 29, 1981); United States v. Waste Industries, No. 80-4-Civ-7 (E.D.N.C. filed Apr. 7, 1981); United States v. Occidental Petroleum Corp., No. Civ. S-79-989 MLS (E.D. Cal. Feb. 6, 1981); United States v. Ottati and Goss, Inc., No. C-80-225-L (D.N.H. filed Oct. 20, 1980); United States v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980); United States v. Solvents Recovery Service of New England, 496 F. Supp. 1127, 10 ELR 20796 (D. Conn. 1980); United States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 10 ELR 20316 (N.D. Ind. 1980). For further information concerning actions filed by the AttorneyGeneral prior to the enactment of the Superfund, see COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — ELEVENTH ANNUAL REPORT 220-21 (1981).

7. Garrett, supra note 4, at 10173.

8. See, e.g., the Environmental Poisoning Compensation Act, S. 1486 (97th Cong., 1st Sess.) 127 CONG. REC. S7694 (daily ed. July 15, 1981) (Mitchell) and H.R. 5203 (97th Cong., 2d Sess.) 128 CONG. REC. S12948 (daily ed. Sept. 30, 1982) (Stafford); the Toxic Victims Compensation Act, H.R. 7300 (97th Cong. 2d Sess.) H.R. 3055, 94th Cong., 2d Sess., 122 CONG. REC. 16,870-71 (1976) (unenacted federal bill) (daily ed. Oct. 1, 1982) (LaFalce); the Victim Compensation and Pollution Liability Act, S. 917 (98th Cong., 1st Sess.) 129 CONG. REC. S3927 (daily ed. Mar. 24, 1983) (Stafford); the Environmental Poisoning and Victim Compensation Act, S. 945 and S. 946 (98th Cong., 1st Sess.) summarized in 129 CONG. REC. S3985 (daily ed. Mar. 24, 1983) (Mitchell-Randolph); the Hazardous Substance Victims Compensation Act of 1982, H.R. 2582 (98th Cong., 1st Sess.) 129 CONG. REC. H2114 (daily ed. Apr. 18, 1983).

9. See ALASKA STAT. § 46.03.824 (1980); N.C. GEN. STAT. §§ 143-215.77(18), 143-215.93 (1980); N.D. CENT. CODE § 32-40-06 (1980); and R.I. GEN. LAWS § 23-19.1-22 (1980). For further discussion of these and other related statutes, see STUDY GROUP REPORT, supra note 1, at pt. IIIA, text accompanying nn.95-112, 121-156 and at vol. 2, app. E.

10. Hazardous Substances Account Act, CAL. HEALTH & SAFETY CODE §§ 25300-25611 (1981).

11. Environmental Response and Liability Act, MINN. STAT. ch. 115B (1983).

12. See Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981).

13. See STUDY GROUP REPORT, supra note 1, at vol. 2, app. K for a discussion of the Rylands doctrine ("non-natural" uses of land), the FIRST RESTATEMENT doctrine ("ultrahazardous" activities), the SECOND RESTATEMENT doctrine ("abnormally dangerous" activities), and other approaches to strict liability based on the magnitude of risk.

14. Garrett, supra note 4, at 10175.

15. Id.

16. Id.

17. See Appendix infra for explanation of the study group's recommendations.

18. Garrett, supra note 4, at 10174.

19. Id. at 10175.

1. STUDY GROUP REPORT, supra note 1, at vol. 1, pp. 197-98.

2. Id. at 200-201.

3. Id. at 204.

4. Id. at207.

5. Id. at 208.

6. Id.

7. Id. at 209-10.

8. Id. at 213-14.

9. Id. at 214.

10. Id. at 214-19.

11. Id. at 214, 220-23. See also id. at vol. 2, app. M.

12. Id. at 234, 238-39.

13. Id. at 234.

14. Id. at 241.

15. Id. at 241-45.

16. Id.

17. Id. at 245-46.

18. Id. at 237-39.

19. Id. at 256-57.

20. Id. at 258.

21. Id.

22. Id. at 260.

23. Id. at 261.

24. Id. at 265.

25. Id. at 269.

26. Id.