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Issue

Volume 13, Issue 12 — December 1983

Articles

The Enviro-Chem Settlement: Superfund Problem Solving

by Norman W. Bernstein

Editors' Summary: The first Ruckelshaus EPA Superfund settlement was concluded recently between the federal government and a group of companies that generated hazardous wastes found at the Environmental Conservation and Chemical Co. (Enviro-Chem) disposal site in Zionsville, Indiana. Mr. Bernstein, cochairman of the generators' steering committee in the negotiations, describes how the parties resolved the critical issues of allocating liability among the generators and establishing a practical mechanism for operating the cleanup trust fund that will pay for cleaning up the site. In addition, he outlines the complaints that the generators have filed against the owners and operators of the site and their insurance carriers, the first suit for reimbursement among Superfund parties.

The Proper Place for the Bubble Concept Under the Clean Air Act

by Laurens H. Rhinelander

Editors' Summary: Supreme Court review in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and congressional reauthorization offer the possibility at last of clarification of the role of the bubble policy in implementing the Clean Air Act. Professor Rhinelander reviews the administrative and judicial histories of the bubble policy, concluding that it should be applied liberally, but that Congress and the D.C. Circuit have left too many obstacles in EPA's path. Turning to the pending Supreme Court action, he argues that the court can and should tear down an unnecessarily large barrier recently erected by the D.C. Circuit but that only amendments to the Act will allow realization of the full potential of the bubble policy.

Toxics Regulation and Product Liability: Decreasing Exposure in the Workplace, Increasing Exposure in the Courts

by Timothy Atkeson

Editors' Summary: Recent OSHA and EPA regulations will promote investigation and disclosure of the health hazards posed by toxic substances. The regulations will also provide potential plaintiffs with the information they need to win product liability suits. Mr. Atkeson analyzes recent rules and statutory provisions that may affect product liability exposure. He concludes that although the new laws will encourage suits, the laws ultimately will reduce toxic exposures and promote equitable assessment of victim compensation costs.

Comment(s)

Fifth Circuit Defers to EPA's Expertise, Approves Broad §404 Wetlands Jurisdiction

by Kenneth L. Rosenbaum

Editors' Summary: In Avoyelles Sportsmen's League, Inc. v. Marsh, the Fifth Circuit ruled that bottomland hardwood wetlands cannot be converted into farmland without an FWPCA §404 permit. The court endorsed EPA's broad interpretatin of wetlands and established a deferential standard for review of EPA wetland determinations. The author analyzes these rulingsand the changing role of the courts in the implementation of §404.

Dialogue

Don't Gut Worst Case Analysis

by Nicholas C. Yost

The Council on Environmental Quality (CEQ) recently issued a proposed memorandum, 48 Fed. Reg. 36486 (1983), for federal agencies concerning the implementation of CEQ's "worst case anslysis" regulation, 40 C.F.R. 1502.22, ELR REG. 46023, promulgated under the National Environmental Policy Act (NEPA). The regulation provides for a "worst case" analysis in environmental impact statements (EISs) in rare but important circumstances. The basic requirements of the rule are simple—if an agency would like to do something which may have severe environmental consequences and it does not know what the effects will be and either cannot find out (i.e. it is beyond the state of the art), or is unwilling to pay the cost of finding out, it must at least determine and take a look at the worst that might happen before it plunges ahead. The proposed guidance memorandum would create an "initial threshold" of "reasonably foreseeable impacts or effects" before a "worst case" analysis would be required. "Potential adverse impacts" with an extremely low probability of occurrence would not be subject to analysis because they do not meet the threshold.

At first blush, any proposal calling for reasonable foreseeability is compelling. For several reasons, however, the proposal is not a reasonable interpretation of the worst case rule and is, indeed, downright harmful. It would not only gut the purpose of the rule, but is contrary to existing case law and previous CEQ interpretation of the rule, and to judicial interpretations of NEPA prior to the rule's promulgation.