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Volume 17, Issue 5 — May 1987


When EPA Makes a Superfund Mistake: Judicial Review Problems Under SARA

by Alfred R. Light

Editors' Summary: The Superfund Amendments and Reauthorization Act of 1986 (SARA) resolved some of the questions raised under the 1980 Act, including the controversy surrounding the availability of preenforcement review. SARA, however, also raises a host of new questions concerning the timing, scope, and standard of judicial review. The author, an experienced Superfund defense counsel, uses a series of hypotheticals to illustrate the difficulties potentially responsible parties may face under SARA if EPA adheres to its current prosecutorial strategy. The hypotheticals involve administrative cleanup orders, citizen suits, administrative subpoenas, de minimis contributors, contribution protection, joinder of the federal government in actions brought by states, state land bans, contractor indemnification, preauthorization, and cost recovery actions. The author offers possible solutions and concludes that the system can work efficiently and equitably only if there are judicial, administrative, or private accommodations permitting cleanup to go forward.

Sterling v. Velsicol: The Case for a New Increased Risk Rule

by David Salvesen and Andrew J. Siegel

Editors' Summary: Contamination of groundwater and other public water supplies caused by the migration of hazardous wastes from chemical burial sites has long been recognized as posing a significant health hazard. The recent decision by a federal district court in Sterling v. Velsicol demonstrates the importance of state tort law in fixing liability for the harm caused by such dumpsites, as the $12.7 million award to the plaintiffs would indicate. In this article, Mr. Siegel and Mr. Salvesen analyze the Velsicol decision, particularly the award of damages for plaintiffs' fear of cancer and the increased risk of cancer, and argue that such an award is a departure from traditional damage rules. The article concludes that, in part because of the latency period for the manifestation of injuries resulting from exposure to hazardous chemicals, the award for increased risk is desirable, but that a new formulation of the increased risk rule is necessary.


A Response to “Rediscovering the Limitsˮ of OMB Regulatory Review

by Robert E. Steinberg

Since President Reagan issued Executive Order 122911 establishing his system to review rulemaking actions by executive agencies, environmental and other public interest groups have sought to preclude the President and his delegatee, the Office of Management and Budget (OMB), from reviewing or influencing agency decision-making. These groups believe that agencies will provide stronger protection for health, safety, and environmental values if freed from the disciplines of the regulatory review process which require that the agencies, to the extent permitted by their enabling legislation, promulgate regulations whose potential benefits outweigh their costs.

Robert V. Percival, in a recent Article in this journal,2 has argued that litigation can be a useful tool for limiting the regulatory review process. Citing Judge Flannery's decision in Environmental Defense Fund (EDF) v. Thomas,3 Mr. Percival argues that in those cases in which the Environmental Protection Agency (EPA) or another agency has missed or is about to miss a statutory deadline, "no additional time can be allowed for OMB review."4 Apparently, Mr. Percival would urge public interest groups to bring lawsuits precluding OMB review in the many circumstances in which an agency has not met, or is not likely to meet, the statutory deadline set by Congress.

A New Direction in Water Resources Development

by Robert A. Roe

The Water Resources Development Act of 19861 is the most comprehensive water resources development legislation enacted by the Congress in half a century and is the most environmentally sensitive water resources bill ever developed. The law combines all types of water resources projects and establishes a new equitable federal/nonfederal partnership in the development of projects, including local financial contributions where appropriate.

The last water resources development act was signed into law in 1976.2 The last traditional omnibus legislation authorizing the construction of Corps of Engineers projects was signed into law in 1970.3 The 19744 and 1976 Water Resources Development Acts consisted primarily of authorizations for advanced engineering and design of projects rather than for their construction. As a result, over this 16-year period a large backlog of proposed water resourcesprojects accumulated. The Water Resources Development Act of 1986 (hereinafter Act) enables the Corps of Engineers program to proceed once again in a responsive and expeditious manner to meet the critical water needs of our nation.