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Volume 15, Issue 1 — January 1985


Environmental Issues in the 99th Congress

by Bud Ward

Superfund. Superfund. Superfund. There is more to the world of environmental legislation than just reauthorization of Superfund, the Comprehensive Environmental Response, Compensation, and Liability Act.

Keep telling yourself that. You may need to once the 99th Congress convenes late this month and its authorizing committees get down to the work of considering reauthorizations of the torrent of environmental legislation carried over from last year.

In reality, reauthorization of Superfund is just one of the several key environmental and pollution control issues that will face the new Congress. In addition to Superfund, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the always-present Clean Air Act are pending reauthorization. Of the major Environmental Protection Agency (EPA) regulatory statutes, only the Resource Conservation and Recovery Act (RCRA) is "safe," not facing consideration in 1985, it having been reauthorized last year for fiscal years 1985 through 1988. Add to the EPA regulatory programs the resources and conservation programs administered at the federal level by the Department of the Interior, and the 99th Congress' environmental workload grows even larger.

The RCRA Delisting Process, A Response to Compton and Patterson

by Steven Silverman

In their article Delisting Hazardous Wastes — Do the RCRA Amendments Spell Relief?1 Ms. Compton and Mr. Patterson discuss the Environmental Protection Agency's (EPA's) rules for delisting hazardous wastes under the Resource Conservation and Recovery Act (RCRA),2 the Agency's implementation of these rules, and the recent statutory amendments dealing with delistings. Working at EPA, my biases naturally differ from those of the authors. Acknowledging these biases, I nevertheless believe that their article contains a number of mischaracterizations about the Agency's rules and actions. I also think that they have misread parts of the new statute. In some cases the misreadings are serious. I would like to describe briefly EPA's delisting rules and actions to date, summarize my view of the 1984 RCRA amendments on delisting, and give my views on future Agency actions in this area — responding to Ms. Compton and Mr. Patterson along the way when appropriate. My views are necessarily my own, and are not statements of EPA policy.

Marking Time: A Status Report on the Clean Air Act Between Deadlines

Editors' Summary: The gray-bearded Clean-Air Act may appear to be enjoying a quiet slumber in the lull between its 1982 and 1987 deadlines for eliminating unhealthy air pollution, but it is not. The pages of the Federal Register and the federal court reporting services are crammed with legal developments under the Act. They receive relatively little attention in comparison to Congress' futile efforts to give the Act its second major overhaul since 1970, not to mention the general hullabaloo over hazardous waste, but they are important. Lacking guidance from Congress, EPA has reshaped the Act and its implementation, refining the basic regulatory tools, charting administrative paths around the potentially disastrous 1982 attainment deadline, and giving the states increasing implementation authority. EPA also has had its hands full trying, with mixed success, to fend off states' and environmentalists' efforts to force the agency to expand regulation of toxic air pollutants and emissions of sulfur dioxide, the pollutant most often cited as a cause of acid rain. The author reviews 1984 judicial and administrative actions under the stationary source provisions of the Clean Air Act and concludes that EPA has rebuilt the Act into a slimmed-down, stripped-down model that can continue forward without major breakdown largely because it skirts the major challenges posed by the Act's 1977 Amendments.

Cooperative Federalism Under the Surface Mining Control and Reclamation Act: Is This Any Way to Run a Government?

by Mark S. Squillace

Editors' Summary: Most environmental statutes reflect a decision by Congress to split implementation responsibility between state and federal governments. The author asks whether this is wise. Focussing on the Surface Mining Control and Reclamation Act (SMCRA) and its implementation, he compares experiences under the Act with direct federal regulations and state — federal "cooperation." The author argues that criticisms of direct federal regulation, while valid in some situations, do not carry sufficient force to justify abandonment of that model. He concludes that cooperative federalism under SMCRA not only fails to meet statutory goals of environmental protection, but is difficult to carry off and wastes state and federal resources through pointless duplication and vexing oversight activity.

Reforming Environmental Law

by Phillip D. Reed

It is time we started to think seriously about environmental law reform. Environmental law has been with us for over 15 years and, although it is still a growing teenager,1 1985 is not too soon to plan for its maturity.Its intense energy and compulsion to accomplish everything at once without concern for the long-term consequences were understandable, probably essential, in its youth. It had to carve a place for itself in a world that, but for a relatively small number of idealists, was largely indifferent. Now, environmental law is strong and able to control much within its broad reach. It has achieved some of its idealistic goals and begun to see how hard it is to achieve them all. Without abandoning its goals, it must learn to function with minimal friction in an adult world of competing interests and compromise. Even though there are serious new problems to address, it is time to pay attention to reforming environmental law.

This does not mean it is time to prepare environmental law for the dotage of old age. Unlike some categories of federal regulatory initiatives, for example certain economic regulation, environmental law does not serve a need that can be mooted by changes in the economy. It serves a more enduring purpose by protecting the environment that sustains our very existence. Absent government intervention, the economic incentives to pollute are virtually irresistible. The damage a modern industrial economy can inflict on the environment can be fatal. In this context, deregulation is not, and probably never will be, constructive reform. But there is nothing sacred about our initial schemes for protecting the environment. They have flaws and could be reformed. Because it must last, environmental law must have the capacity to evolve continuously.

Criminal Prosecution and Defense of Environmental Wrongs

by Daniel Riesel

Editors' Summary: It is a sign of the maturity of environmental law that criminal enforcement is coming of age. Although federal and state pollution control agencies have long had criminal enforcement powers, those powers were rarely used. One explanation may have been a reluctance to saddle businessmen confronted with complex and confusing regulatory demands with the stigma of criminal indictments. Anotherr may have been convern that it would be difficult to prove that violations were accompanied by the requisite mental state — most of the statutes limit criminal sanctions to "knowing" violations. Whatever the reasons for past reluctance to prosecute violators of pollution control statutes, that reluctance has disappeared, perhaps reflecting a decision that the statutes have been around long enough to be familiar to all in the regulated community, making knowing violations truly criminal in nature. The author describes the current federal and state criminal enforcement initiatives, surveys the criminal provisions of federal environmental statutes, analyzes key questions of proof under those provisions, and offers suggestions for attorneys representing persons under investigation.

Using CERCLA to Clean Up Groundwater Contaminated Through the Normal Use of Pesticides

Editors' Summary: In October 1984, EPA proposed listing on the National Priorities List six groundwater sites on the Hawaiian island of Oahu. Those sites are the first to involve contamination by intentionally and legally applied pesticides. EPA's proposal to use CERCLA to respond to that contamination has caused a great deal of controversy, from an exchange of letters between Congressman Florio and EPA Administrator Thomas to submission of CERCLA amendments by the Administration that would explicitly exempt pesticide contamination from the statute's coverage. The author gives an overview of the problem, examines the statute for authority to respond to this sort of contamination, and briefly considers whether Congress should amend the statute to address the issue. He concludes that there is no compelling reason in law or policy for EPA to decline to exercise authority over the sites or for Congress to remove that authority; in fact, he argues, Congress would be better advised to broaden the liability provisions so that pesticide manufacturers could be more clearly held liable for this sort of contamination.

Minnesota's Environmental Response and Liability Act: An Economic Justification

by Mark A. Hester, Gary Johnson and Thomas Ulen

Editors' Summary: In 1983, the Minnesota Legislature enacted the country's most aggressive and comprehensive state Superfund statute, the Minnesota Environmental Response and Liability Act (MERLA). The statute establishes an extensive private cause of action that includes joint and several liability for economic and personal injury, broadly defined; relaxes standards of proof of causation; and applies this liability retroactively.

Recently, there has been a strong move in the legislature to amend MERLA to remove its most aggressive features. One of the most vigorous criticisms has been that insurance will be unavailable to cover liability for hazardous waste exposure. The authors use the tools of economic analysis to examine the Act and the reasons that have been put forth for amending it. They conclude that MERLA provides for greater safety from hazardous waste disposal than other statutes, and in a responsible and cost-effective manner. Though it will impose greater costs on disposers and generators of hazardous wastes, these costs provide appropriate incentives for responsible behavior. Further, there is no reason to believe that insurers cannot evaluate the risks involved and issue coverage in the same way as other novel risks have been covered in the past.

Amending FIFRA--An Industry View

by Kenneth W. Weinstein

Once again, as in the past several years, it appears that Congress will consider amending the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). A coalition of environmental groups, led by the Natural Resources Defense Council, has suggested legion amendments ("The Federal Pesticide Reform Act of 1985") which would largely rewirte the law. Senator Proxmire (D. Wis.) introduced S. 309 to amend FIFRA on January 29, patterned after the environmentalists' proposal.1

The Environmental Protection Agency (EPA) drafted a less ambitious set of proposed amendments, but these were quashed by the Office of Management and Budget. Nevertheless, Congressman Bedell (D. Iowa), Chairman of the Subcommittee on Department Operations, Research and Foreign Agriculture of the House Agriculture Committee, has made known his desire to assemble a bill bassed on the EPA draft.2 Congressman Heftell (D. Hawaii) has introduced the "Pesticide Import and Export Act of 1985," H.R. 1416, which would amend the export provisions of FIFRA.3

Federal Pesticide Control Law: The Need for Reform

by Jay Feldman

Just as surely as the cropdusters appear on the spring horizon to spray their mist of pesticides on the nation's agricultural lands, helicopters hover over forest lands to drop their mix of insect and weed killers, and lawn care services douse the suburbs with chemical agents, the Agriculture Committees in the United States Congress approach their seasonal task of reauthorizing the federal law intended to control those deadly sprays. Neither the start of the spray season, nor the seasonal legislative consideration of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is without controversy.

One of the most controversial and distressing aspects of the nation's 2.7 billion pounds of annual pesticide use is the alarming extent to which these toxic chemicals — which, unlike most toxics, are intentionally and legally disseminated into the human environment — remain untested for carcinogenic, mutagenic, and teratogenic effects. A report published in 1982 by the staff of a congressional subcommittee confirmed a decade of similar investigations, finding that 79 to 84 percent of pesticides lacked adequate carcinogenicity testing, 90 to 93 percent lacked adequate mutagenicity testing, and 60 to 70 percent lacked adequate testing for their tendency to cause birth defects.1 More recently, in 1984, the National Academy of Science found that complete health hazards assessments for pesticides and inert ingredients of pesticide formulations are possible for only 10 percent of pesticides in use.2 Many other problems exist, including a poor EPA enforcement record, extensive use of special exemptions from product registration requirements, drawn out administrative safety reviews, inadequate applicator training and certification, and major use problems that result in food, groundwater, and living and working space contamination.