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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — December 1985


CERCLA 1985: A Litigation Update

by Phillip D. Reed

Editors' Summary: CERCLA is one of the most important environmental statutes, and one of the most difficult to follow. The shape of the legal scheme is being wrought, not in agency rulemakings, but in the courts, and each week brings another significant decision. To help our readers stay abreast of these developments, ELR tries to provide both in-depth analyses of specific issues such as bankruptcy and generator liability, and surveys of the broad trends in the law. When we last reviewed the litigation, in our June 1984 issue, the focus was on basic questions of the scope and nature of liability, particularly that of hazardous waste generators. The litigation outcomes were one-sided, with government interpretation of the statute carrying practically every decision, all of which came from the district courts. Since that time, CERCLA decisions continue to proliferate, with the first courts of appeals decisins appearing on the scene. The issues are changing, with increasing attention focused on preenforcement reviewability of EPA cleanup and enforcement actions, the relationship of EPA's broad power to implement cleanup plans to the property rights of those owning land under or next to the toxic waste dumps, landowner liability, affirmative defenses, private party recovery, and the scope of personal jurisdiction under the statute. The track record of the government is still very good, but EPA has suffered some telling losses. This Comment reviews the last 18 months of CERCLA caselaw to once again bring our readers up to date on the broad trends in CERCLA implementation.

Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law

by Laura H. Kosloff

Editors' Summary: In 1983, Kesterson National Wildlife Refuge in central California achieved national prominence when Fish and Wildlife Service scientists discovered severely deformed and dead waterfowl at the refuge and concluded that the cause was selenium contamination from irrigation wastewater stored there. The use of Kesterson as a disposal site for such irrigation wastewater will cease in six months, but the problems it has raised will not soon fade. The contamination at the site must be cleaned up and further contamination prevented. The water that is currently being sent to the refuge for disposal must somehow be treated and stored. And in the long run, resource managers and policy makers must address the potential for widespread selenium contamination at other sites throughout the West. Although numerous environmental laws have been implicated, none provides a comprehensive solution to a complex problem that touches not only on wildlife, but also on water pollution, hazardous and toxic substances pollution, and reclamation policy. Conflicts between federal, state, and local governments exacerbate the problem, and many governmental agencies, private organizations, and individuals have a stake in the issues. The Comment provides a history of the events at Kesterson and an overview of the litigation the crisis has has spawned. It also looks at how federal reclamation policies have contributed to a major drainage problem by encouraging full-scale development of water resources without giving appropriate thought to treatment and disposal of the resulting wastes.