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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1983


Three Years of Superfund

by James A. Rogers

Editors' Summary: It has been almost three years since the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and the prospects for rapid achievement of the Act's goals are not bright. Implementation of CERCLA has been plagued by lack of information on the scope and incomplete scientific understanding of the mechanisms of hazardous waste pollution. Hasty legislative drafting of an approach to pollution control different from that of the regulatory schemes already in use in federal environmental law created a legal puzzle that cannot be solved easily or quickly. These intrinsic barriers to carrying out the Superfund mandate were magnified by the recently ended political debacle surrounding administration of the program at EPA. Mr. Rogers reviews the status of CERCLA implementation and assesses the prospects for further progress. He argues that while the data base is improving and EPA is restoring confidence in its Superfund office, by continuing to pursue expansive theories of generator liability for hazardous substance cleanup the federal government is ensuring that the Superfund program will be mired in slowmoving litigation for years to come.

Biotechnology Released From the Lab: The Environmental Regulatory Framework

by Reid G. Adler and Frances L. McChesney

Editors' Summary: The biotechnology revolution has arrived, bringing the promise of great benefits in medicine, agriculture, and pollution control, but also the potential for serious harm from deliberate releases of new organisms into the environment. Already, federal agencies are assessing the need for regulation. The regulators must grapple with questions about the nature and magnitude of the risks of biotechnology, and about whether existing statutes or comprehensive genetic engineering control law is the best way to protect the environment from the new technologies. The authors describe the new directions in biotechnology and the potential for releases of man-made organisms into the environment. They agree that a regulatory scheme requiring expert risk analysis prior to releases, coupled with authority to control the conditions of the releases, is needed. The authors then review federal environmental statutes assessing their suitability for regulating the environmental impacts of living organisms. They conclude that a new statute is not needed if gaps in the coverage of existing statutes can be filled and the several federal agencies with fragments of necessary authority can coordinate their efforts.


State Hazardous Waste Superfunds and CERCLA: Conflict or Complement?

by Elaine C. Warren

Editors' Summary: In the past few years, many states have enacted legislation that closely parallels the fund and liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).States have been spurred to adopt their own superfund legislation by the financial requirements and response action opportunities presented them by CERCLA as well as by gaps in the federal Act. The author analyzes the role of the states in the federal program, reviews the state superfund legislation, and assesses the relationship between the federal and state programs. The author concludes that some state superfund legislation complements the federal Act, while other state statutes raise preemption issues and doubts about the ability of the states to meet CERCLA matching grant and response authority requirements. On the other hand, several states have gone beyond CERCLA, tackling difficult hazardous waste liability and victim compensation issues and perhaps providing models for future federal legislation.


An EPA Response on Confidentiality in Environmental Auditing (With Editor's Reply by Phillip D. Reed)

by Michael H. Levin

I was pleased to see a copy of your Comment on environmental auditing disclosure issues. As you are aware, we have been actively involved in analyzing and encouraging private-sector environmental auditing for several years. It's nice to see informed analysis on these auditing issues.

Your "self-evaluation privilege" section [13 ELR 10306] was of particular interest. It suggests how well suited the privilege could be to the evaluative process involved in environmental auditing. As you indicated, the elements required for a company to assert the privilege include: (1) an internal review process akin to a self-evaluation, (2) a strong public interest in environmental auditing, and (3) a likelihood that environmentally beneficial auditing would be curtailed unless the disclosure issue were satisfactorily resolved.