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Issue

Volume 13, Issue 6 — June 1983

Articles

Compensating Victims of Toxic Substances: Issues Concerning Proposed Federal Legislation

by Theodore L. Garrett

Editors' Summary: In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, which provided a federal scheme for cleaning up hazardous waste sites and a so-called "Superfund" to finance the cleanups. Congress also considered but failed to include provisions to compensate victims of hazardous waste exposure. Instead, it created a study group, which in 1982 recommended a remedial system for hazardous waste injuries. In this Article, Theodore Garrett disucusses the study group report and analyzes the strengths and weaknesses of proposed legislation that has since emerged. He explores two threshold issues concerning victim compensation legislation that have yet to be considered fully—defining the nature and extent of the problem and determining the adequacy of our legal system in compensating claimants and ensuring fairness to defendants. He then discusses the issues in framing federal legislation, including what kinds of exposures are to be covered, who is to finance a compensation fund, what kinds of damages should be recoverable, whether plaintiffs should have a choice of remedies, and whether tort law should be "reformed" to compensate victims. Mr. Garrett concludes by presenting a victims compensation scheme preferred by industry and suggesting ways to protect innocent defendants through substantive tort law.

The Application of NEPA to Agency Actions Affecting Human Health

by James B. Dougherty

Editors' Summary: An important but rarely litigated issue under NEPA concerns the consideration that agencies must give to the human health consequences of federal projects. Although human health effects have understandably been characterized as the "most important issue to be covered in an EIS," on many occasions such effects have been neglected out of concern for the more traditional subjects of environmental analyses. In this Article, Mr. Dougherty shows that the legislative history and case law assign the highest priority to health issues, and thus do not permit the treatment of such effects under NEPA to be overshadowed by the treatment of the air or water quality implications of federal decisions. In addition, he reviews the recent decision of the U.S. Supreme Court in Metropolitan Edison Co. v. People Against Nuclear Energy, which concerned the adequacy of the Nuclear Regulatory Commission's consideration of the human health effects stemming from the 1979 accident at the Three Mile Island nuclear power plant. In the view of the author, the Court's opinion cannot be seriously faulted with respect to the result, although the opinion itself leaves a number of loose ends that may do little to clarify the law in an already turbid area.

Comment(s)

More on EPA Enforcement Guidelines

On January 12, 1983, the EPA General Counsel and Assistant Administrator for Air, Noise, and Radiation issued a memorandum elaborating on the enforcement policy for stationary air sources in primary non-attainment areas issued on September 20, 1982, 12 ELR 30038. The memorandum is reprinted in the Administrative Materials section of this month's ELR, 13 ELR 30009. The earlier policy set forth plans for enforcement under Clean Air Act §113(b) against sources not in compliance by December 31, 1982, the statutory deadline for attaining the primary ambientair quality standards. The current memorandum clarifies the enforcement policies for (1) allowing sources planning to comply through shutdown to temporarily exceed the standards; (2) requiring sources in states without Part D plans to adopt reasonably available control technology; (3) seeking significant cash penalties from violators; (4) pursuing federal in lieu of state enforcement; and (5) issuing notices of violation. The memorandum also clarifies which sources are subject to the enforcement policy.

Dialogue

Reflections on Applying RCRA §7003 to Inactive Hazardous Waste Sites

by Durwood J. Zaelke Jr.

I enjoyed your comment on RCRA §7003 [RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After United States v. Waste Industries, 13 ELR 10074]. Having helped design the Department of Justice's hazardous waste enforcement program around §7003 and having contributed to the post-hoc legislative "history," I of course think the court in United States v. Waste Industries [13 ELR 20286] should have interpreted §7003 to apply to inactive sites.

When we designed the enforcement program, we did recognize that a court might hesitate to apply §7003 to inactive sites when RCRA's regulatory program only applied to active sites. In January 1979, I recommended changes in the proposed RCRA regulations to reflect that the regulatory program was initially being applies to active sites alone for reasons of administrative convenience (i.e., the difficulty in requiring permits for inactive or abandoned sites). I believe that the small group at EPA working on the regulations then was overwhelmed with the enormity of the task of regulating all the generators, transporters, and active sites, and rather casually stated in the regulations that RCRA did not authorize use of §7003 against inactive sites, thinking only about ways of paring their workload down to manageable proportions.

Success at the Negotiating Table: Not Just for Steel Guidelines

by Sarah Compton

The recent negotiations between the Environmental Protection Agency (EPA) and representatives of the steel industry and the Natural Resources Defense Council (NRDC) concerning the Steel Industry Effluent Guidelines provide a promising model for the resolution of future disputes over complex pollution control rules. While these successful negotiations may have been "an aberration from the usual tug of war between industry and environmentalists," as stated by NRDC's Alan Miller in the April ELR "Dialogue" [13 ELR 10094], nothing precludes parties in similar conflicts over other environmental rules from negotiating rather than litigating their differences.1 In fact, contestants in future such conflicts can learn several valuable lessons from the steel settlement.

First, the parties worked hard at dissolving negative perceptions of each other. This was accomplished in large part by involving a great many nonlawyers who shared considerable on-site experience and technical knowledge.