Jump to Navigation
Jump to Content


Volume 13, Issue 7 — July 1983


California Need Not Go Nuclear: The Supreme Court Holds That California's Moratorium on New Nuclear Plans Is Not Preempted by Federal Law

by A. Dan Tarlock

Editors' Summary: In the 1982 Term, the Supreme Court decided three cases involving the nuclear power industry. In the first and third cases, the Court continued its pattern of deference to the Nuclear Regulatory Commission (NRC) and nuclear energy. But to the surprise of many observers, in the second case, Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission, the Court unanimously held that the Atomic Energy Act (AEA) does not preempt a California statute imposing a moratorium on new nuclear plant construction until the federal government approves a technology for disposing of nuclear wastes. Although approving the ultimate ruling, Professor Tarlock criticizes the Court for its failure to provide useful guidance on the law of preemption. The Court found that the state law was founded on economic and not safety concerns and was therefore not preempted by the AEA, which vests exclusive control over nuclear safety with the NRC. Because of the Court's distinction, Professor Tarlock points out, the question of preemption turns on fictitious legislative drafting leaving open the possibility that other states' statutes may not fare so well. However, he concludes that the Court was justified in defining the conflict between federal and state regulation narrowly and refusing to continue to defer blindly to the agency.


Insurance, Hazardous Waste, and the Courts: Unforeseen Injuries, Unforeseen Law

by Kenneth L. Rosenbaum

Editors' Summary: In recent hazardous waste cases, courts have rejected liability insurers' attempts to limit their obligations for unforeseen hazardous pollution. Insurers have been forced to indemnify and defend policyholders for pollution damage arguably excluded from their policies, and have been held to pay the costs of complying with cleanup injunctions. The author reviews several recent cases and considers their implications for the parties, their insurers, and the continued role of insurance in hazardous waste control. He concludes that the uncertainty in the scope of insurers' liability in the aftermath of such cases will increase premiums or drive insurers from the market at the very time when government regulations are increasing the demand for hazardous waste coverage.

Conservation Chemical: Generator Liability for Imminent Hazards on the Docket

by Phillip D. Reed

Editors' Summary: One of the most hotly debated issues in environmental law in the last several years has been the nature of the liability of hazardous waste generators under the imminent hazard provisions of RCRA and CERCLA. The federal government has maintained that those who produced the wastes now leaking out of old, unsafe chemical dumps are subject to strict and joint and several liability for abatement action under RCRA §7003 and CERCLA §106. Industry has argued that placing such a heavy burden on non-negligent companies that had no control over the disposal methods of the dump operators violates Congress' intent, as well as basic principles of the common law and the U.S. Constitution. New the argument is moving from conference halls to the courts. In one pending imminent hazard case against a group of waste generators, United States v. Conservation Chemical Co., the contending positions have been spelled out in detail in memoranda on defendants' motion to dismiss. The author reviews the positions of the two sides in Conservation Chemical. He concludes that while the government has made a strong case in support of its claim of strict and joint and several liability as a general matter, the possibility of apportioning the damage on the basis of the individual generators' shares of the wastes stands in the way of imposing joint and several liability on these defendants.

Administrative Materials in This Issue (13 ELR 30011): EPA Enforcement Counsel Issues "Interim" Guidance on Superfund Negotiations

On May 20, 1983, EPA's Enforcement Counsel issued interim guidance on the controversial Superfund negotiation process (see 13 ELR 10062) to the Agency's 10 regional counsels. The memorandum prescribes principles to guide the regional offices in conducting pre-litigation negotiations until more detailed guidance now in preparation is ready for release. The policies indicate that pre-litigation negotiations may still be initiated, but should not delay initiation of Superfund-financed cleanup actions. The goals of such negotiations are to secure agreement for complete cleanup of a site or full financing of such cleanup. All potentially responsible parties are to be offered the opportunity to enter any proposed settlements.


EPA's Regulatory Negotiation Will Provide Opportunity for Direct Participation in Development of a Regulation

by Philip J. Harter

The Environmental Protection Agency (EPA) recently announced in the Federal Register "a demonstration project to test an approach to rulemaking frequently referred to as 'Regulatory Negotiation.'" The notice solicited suggestions for subjects that might be addressed by the process.The response was strong and favorable. Approximately 25 candidate rules were submitted from industry and environmental groups and another dozen from EPA. Meetings have been held to discuss the proposed procedure with those interested groups, and the EPA project staff is well along in choosing the topic that will be the subject of the regulatory negotiation. The process has not moved as quickly as originally contemplated because of the chaos engulfing the agency. However, it is expected to begin again shortly after the staff briefs the new administrator and gains his endorsement of the concept.

Regulatory negotiation affords those interested in a regulation the opportunity to participate directly in its development by sharing in the decisionmaking process. The concept contemplates that someone who is rigorously neutral with respect to the subject matter of the rule, and who would therefore be able to gain the confidence of both outsiders and agency personnel, would work with the agency staff and interested groups to identify individuals to represent those interests. That person would then serve as a mediator/facilitator to help the parties address the issues and reach a consensus on a regulation. To ensure that potential interested parties are aware of the process, the convenor would not only tap the traditional networks but also would invite participation by affected groups through notice in the Federal Register. So convened, the process would enable the parties to identify the issues raised in the substantive area, determine what research must be conducted for a responsible decision, rank the issues as to their priorities for the respective parties, and work out the final rule.