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Volume 14, Issue 1 — January 1984

Articles

Legislative Outook in the Senate: Finishing Unfinished Business

by Philip T. Cummings

Editors' Summary: As Congress begins the second session of the 98th Congress, we assess both the results of the first session (see Comment, 14 ELR 10005) and the prospects for the second. For the latter task, a crystal-ball gazing exercise, we have enlisted the help of two of the sharpest-eyed observers of congressional trends available: Philip Cummings, Minority Counsel for the Senate Environment and Public Works Committee and Bud Ward, Editor of THE ENVIRONMENTAL FORUM. Mr. Cummings analyzes the chances for Senate action; Mr. Ward those in the House.

Legislative Outlook in the House: Only RCRA Amendments Likely

by Bud Ward

Editors' Summary: As Congress begins the second session of the 98th Congress, we assess both the results of the first session (see Comment, 14 ELR 10005) and the prospects for the second. For the latter task, a crystal-ball gazing exercise, we have enlisted the help of two of the sharpest-eyed observers of congressional trends available: Philip Cummings, Minority Counsel for the Senate Environment and Public Works Committee and Bud Ward, Editor of THE ENVIRONMENTAL FORUM. Mr. Cummings analyzes the chances for Senate action; Mr. Ward those in the House.

Congress in 1983: Much Oversight, Little Legislation

Editors' Summary: This Comment surveys the environmental activity of the first session of the 98th Congress. Congress' oversight of the executive branch contributed to headline-grabbing changes in the administration of federal programs. But while busy checking the initiatives of the Reagan Administration, Congress enacted no major new environmental laws, despite proposals before it in the areas of air quality, water quality, hazardous waste, toxics, nuclear energy, public lands, and natural resources. Several of the proposals, notably the bills to reauthorize the Resource Conservation and Recovery Act, made real progress and await further action in the second session.

Beyond Mitigation--Restoring Federally Damaged Salmon Runs Under the Columbia Basin Fish and Wildlife Program

by Michael C. Blumm

Editors' Summary: Federal resource development projects often ignore and sometimes even degrade fish and wildlife resources. In the Columbia Basin, for example, federal dams have severely reduced salmon populations by destroying spawning habitats and impeding migration. A novel fish and wildlife program developed under the Pacific Northwest Electric Power and Planning Conservation Act will go far to redress the injury to fish runs. Mr. Blumm discusses the Act and the fish and wildlife program, which may serve as models for wildlife enhancement programs in other regions of the country.

Caveat Emptor: The Impact of Superfund and Related Laws on Real Estate Transactions

by Samuel A. Bleicher and Benjamin G. Stonelake

Editors' Summary: Environmental law has invaded the world of real estate transactions. When federal or state governments come to collect the costs of cleaning up unsafe hazardous waste sites, as statutory and common law authorize them to do, they may well stop at the door of the current landowner. The desire to avoid hidden liabilities has made hazardous waste law required reading for prospective purchasers and security holders of commercial real estate. The authors, environmental lawyers who have counseled clients buying and selling real estate containing hazardous waste, outline the sources of landowner liability for hazardous waste pollution and suggest steps that will help commercial real estate purchasers avoid hazardous waste liability. They conclude that the emergence of new statutory and common law governing liability for toxic waste pollution has not made landowners more likely to be liabile, but has greatly magnified the scope of the potential liability. Some states have tried to address the problem with statutes requiring registration of hazardous waste sites on deeds, but the authors counsel prospective purchasers to take additional protective steps, ranging from consulting environmental counsel to considering alternatives to outright purchase of the land.

A Response To Rogers, Three Years of Superfund

by Joel Mintz

In the November 1983 News & Analysis, James A. Rogers reviewed the first three years of the federal government's implementation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).1 Mr. Rogers was sharply critical of the government's litigation strategy. In particular, he argued that the Environmental Protection Agency (EPA) and the Department of Justice have delayed the effective implementation of Superfund by adopting expansive interpretations of the reach of its liability provisions. Decrying the government's views as "extreme" and "patently unfair," Rogers states that "further progress has been blocked by EPA's counterproductive insistence on preserving maximum potential generator liability."2

I ardently disagree with Mr. Rogers' assessment. Though Rogers correctly observed that Superfund has had a "tempestuous early history," tainted by scandal and weakened by administrative inconsistency, his notion that the government's legal positions have thwarted the prompt realization of the Superfund's basic goals is entirely misguided. In fact, viewed in the context of the enormous hazardous waste site problem, with the practical difficulties of pinpointing responsibility for many releases and the inequities of not construing Superfund to create extensive generator liabilities, the government's legal posture seems not only reasonable but also necessary for effective implementation of the Act.

Third Circuit Clears Way for National Pretreatment Program

by Barry S. Neuman

Editors' Summary: On September 20, 1983, in National Association of Metal Finishers v. Environmental Protection Agency, 13 ELR 21042, the Third Circuit upheld the basic program established by EPA to control the discharge of wastewater from 60,000 industrial facilities to municipal sewage treatment systems under the FWPCA. The EPA program, which requires "pretreatment" of such waste discharges so that they will neither "interfere with" nor "pass through" the publicly owned treatment works (POTWs), had taken much longer to develop than the system of permits and effluent limitations for factories discharging their wastes directly to the nation's rivers and streams. The regulations, promulgated in 1978 and amended in 1981, were attacked in court by industry plaintiffs as well as environmentalists. The litigation was diverted over a challenge to EPA's indefinite postponement of the rules' effective date, an action overturned by the Third Circuit, 12 ELR 20833. The regulations at issue in Metal Finishers included general pretreatment rules establishing the procedures and methodologies EPA would use to set standards for industrial categories as well as the categorical standards for the metal finishing industry. The court upheld the EPA rules for the most part, with the Agency's biggest loss coming with the invalidation of the "fundamentally different factors" (FDF) variance that EPA had made available to individual plants for which the standards for industry categories were not appropriate.

In this article Mr. Neuman, who was the chief government counsel in the case, explains the court's ruling on the general pretreatment rules and assesses its implications for the EPA pretreatment program. Mr. Neuman does not discuss the FDF variance issue, since a petition for certiorari has been filed on it. A companion article, 14 ELR 10047, analyzes the variance challenge.

Third Circuit Reopens Basic Water Act Issues by Invalidating FDF Variance

by William L. Want

Editors' Summary: This is the second of two articles in this issue concerning the Third Circuit's recent decision on EPA's pretreatment regulations. The first article, 14 ELR 10039, discusses all but one of the issues reached by the court in National Association of Metal Finishers v. Environmental Protection Agency, 13 ELR 21042, a decision that resolved finally most questions about the pretreatment program. The remaining issue, the legality of "fundamentally different factors" (FDF) variances from categorical pretreatment standards, is a controversial one with major implications for EPA's regulation of direct water pollution discharges as well. The Third Circuit accepted the arguments of the Natural Resources Defense Council, Inc. (NRDC) and ruled that Congress outlawed FDF variances from all categorical standards governing toxic pollutants in 1977 when it added § 301(1) to the FWPCA. Industry has filed a petition for certiorari on this issue and the government reportedly will follow suit.

In this article, Mr. Want examines the Third Circuit's ruling on FDF variances in light of the history of categorical effluent standards and FDF variances for direct dischargers. He argues that the FDF variance was an essential part of a compromise sanctioned by the Supreme Court that allowed EPA to take the shortcut of one-step, mandatory categorical effluent limits through the complex regulatory process dictated by Congress for controlling pollution from factories discharging directly to the nation's rivers and streams. EPA later used the same approach in the pretreatment program. Reviewing the parties' arguments on the issue in
Metal Finishers, Mr. Want concludes that, while both sides have merit, the NRDC position adopted by the Third Circuit is flawed because it removes one of the essential working parts from the basic FWPCA regulatory mechanism upheld by the Supreme Court: the combination of categorical standards and FDF variances.

Data Use and Compensation Under FIFRA: Can Monsanto Survive Supreme Court Review?

by Kinsey S. Reagan and Peter O. Safir

Editors' Summary: In order to register a pesticide under FIFRA, the registrant must submit data on the pesticide's safety and efficacy to EPA. FIFRA's provisions on EPA's use and disclosure of such data have proved controversial. In particular, the provision allowing EPA to use one manufacturer's data to support the application of another has repeatedly been challenged as an unconstitutional taking of property. In Monsanto Co. v. Acting Administrator, Environmental Protection Agency, the issue has reached the Supreme Court. Messrs. Safir and Reagan analyze the FIFRA taking issue, examining the history of the challenged provision, how various lower courts have dealt with challenges to it, and what routes are open to the Supreme Court. Finally, they consider the potential impact on similar federal registration statutes should the FIFRA provisions be struck down.

Private Enforcement of Federal Pollution Control Laws, Part II

by Jeffrey G. Miller

Editors' Summary: In the second of a three-part series, Mr. Miller analyzes the mechanics of bringing a citizen suit and the remedies available to the successful plaintiff under 11 federal environmental statutes. He examines the conditions precedent to citizen suits, the rights of government and citizen enforcers to intervene in each other's suits, security requirements that courts may impose on citizen suit plaintiffs, and the extent to which the citizen enforcer can obtain the same remedies available to the government. The analysis draws on the statutory language, legislative history, agency regulations, and court decisions and leads the author to a number of recommendations for making the citizen suit provisions better serve the purposes Congress had in mind in enacting them.