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Issue

Volume 18, Issue 10 — October 1988

Articles

New Safe Drinking Water Act Liability for Corporate America

by Steven J. Koorse and Turner T. Smith

Editors' Summary: Public water systems that serve residential communities have been subject to the Environmental Protection Agency's comprehensive regulatory program under the Safe Drinking Water Act since the Act was passed in 1974. EPA has recently extended the coverage of its regulatory program to public water systems that do not serve residential communities, such as industrial and commercial facilities and schools. Many corporations that provide water to employees and other members of the public are thus now subject to substantial new liability. The authors examine how the new SDWA regulatory program affects corporate water suppliers. They observe that the new regulatory requirements could also serve as the legal basis for toxic tort suits for damages caused by water supplied in a corporation's facility. The authors conclude that corporations can minimize their liability by monitoring the regulatory developments and determining which requirements apply well ahead of compliance deadlines. Corporations should also evaluate the integrity of their water systems, select a high-quality laboratory to test their drinking water, and develop a compliance plan for each of their facilities.

RCRA Enforcement and the Statute of Limitations

by Doris K. Nagel

Editors' Summary: EPA's RCRA enforcement program will face a serious threat as defendants begin to raise statute of limitations defenses. The five-year federal statute of limitations is now expiring for many RCRA violations. Many statute of limitations issues remain unresolved, including what, if any, is the proper statute of limitations in civil or criminal court actions and when does it begin running, and whether administrative proceedings toll the statute. The author explores the application of the federal five-year statute of limitations in states with and without EPA-approved RCRA programs and discusses EPA's options for responding to the statute of limitations defense. She concludes that EPA may be able to assert the discovery rule or characterize violations as ongoing, but suggests that EPA consider regulatory changes to fully protect its causes of action. Further, Congress should clarify the issue during the reauthorization of RCRA, as it did in the 1986 CERCLA amendments.

Dialogue

Seizing 1989 as a Window of Opportunity: An Environmental Challenge to the Next Administration

by Thomas L. Adams Jr. and Kyle E. McSlarrow

Editors' Summary: Both George Bush and Michael Dukakis promise that if elected they will devote high-priority attention to environmental issues. Opinion polls consistently show that these candidates are articulating views on the environment that have now become an ingrained and durable part of the American public's values. A major challenge for environmental professionals in the coming year will be how to translate this sentiment into action, particularly during the "honeymoon period" of a newly elected president.

In this Dialogue, the authors propose several means to move the environmental agenda forward in 1989. They recommend a Presidential Commission on the Environment, and suggest specific consideration of merging the environmental mandates of diverse federal agencies, integration of media-specific environmental statutes, higher priority for waste minimization, a more insightful approach to pollution from federal facilities, and a wider sharing of objective scientific background for difficult policy decisions.

Debating the Problems That Underlie Pollution Control Problems

by Michael McCloskey

Editors' Summary: As environmental regulations and litigation grow in complexity, the debate surrounding pollution control issues becomes more technical and specialized. As a result, the fundamental questions and assumptions that underlie pollution control problems sometimes go unarticulated. The author asserts that these underlying issues—such as how risk averse we should be, how we should weigh environmental protection and cost, who should be responsible for the cost of cleaning up pollution—should be brought into the open and explicitly addressed in broad public debate, especially on the occasion of an election year and new presidential administration. To take the first step in establishing a framework for this debate, the author sets forth what he sees as the two basic opposing positions in environmental policy: the "go-slow" approach to environmental regulation, and the "tough regulation" position.