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Issue

Volume 13, Issue 2 — February 1983

Articles

Common Law Nuisance in Hazardous Waste Litigation: Has It Survived Milwaukee II?

by Jeffrey Trauberman

Issues:

1. Is compliance with federal and state environmental statutes and regulations a defense to a federal or state common law negligence or nuisance action?

2. Does the existence of a federal regulatory statute governing a particular activity bar a federal or state common law claim with respect to that activity?

Comment(s)

Court Upholds States' Relaxation of CO2 Controls: Interstate Impacts, Sulfate Pollution Allowable

by Phillip D. Reed

Editors' Summary: The long-range transport of sulfur dioxide emissions, their transformation into sulfates in the atmosphere, and their eventual return to earth through the phenomena popularly lumped together under the name "acid rain" is a serious environmental problem that many argue has been given inadequate attention in the Clean Air Act. In three decisions issued on December 1, 1982, the Second Circuit Court of Appeals analyzed carefully the Clean Air Act's response to the interstate transport of SO2 and its transformation into sulfates. The court upheld EPA approval of revisions to the New York and Connecticut state implementation plans, including one utilizing the "bubble policy, which allow increases in SO2 emissions from existing facilities. Phillip D. Reed reviews the decisions and argues that while they illustrate the limitations of the Act's response to interstate SO2 pollution and the atmospheric formation of sulfates, they also establish a basis on which those provisions could be given greater effect in later cases.

Dialogue

The Ocean Dumping Debate—Continued

by Thomas Bick and Kenneth Kamlet

Samuel Bleicher's recent article on ocean dumping, "The Battle Over Ocean Dumping," 12 ELR 15032, while providing an excellent analysis of many of the key issues in the debate over ocean disposal of contaminated wastes, fails to address a critical point: the national and international precedent that could well be established by a U.S. policy reversal on ocean dumping. Because contaminated sewage sludge is now dumped on only one area of the coastal United States—at a location in the New York Bight approximately twelve miles off the New Jersey coast—much of the discussion of the federal policy on ocean disposal has focused exclusively on the costs and impacts of, and the alternatives to, dumping at that site. As a consequence, the larger national and worldwide ramifications of our national ocean dumping policy tend to be neglected, and here Bleicher's article is no exception.

What ultimately happens in the New York Bight could have a major impact on the quality of all U.S. coastal waters. Sewage sludge now dumped in the Bight by New York and Northern New Jersey sewerage authorities is among the most highly contaminated in the country. Pollutants in these wastes include a wide variety of toxic heavy metals, pathogenic microorganisms, petroleum hydrocarbons and organohalogens such as PCBs and chlorinated hydrocarbon pesticides. Many of these contaminants are known to have severe adverse effects on marine organisms, and many readily accumulate in the tissues of fish and shellfish and consequently threaten the human foodchain. If sludge this contaminated can be lawfully ocean-dumped, one wonders how the federal government will be able to justify preventing others—municipalities and industrial sources alike—from disposing of their toxic wastes in the same way.