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Issue

Volume 21, Issue 10 — October 1991

Articles

Federal Implementation of the Oil Pollution Act of 1990

by Charles A. Openchowski

Editors' Summary: The Oil Pollution Act (OPA) is undergoing implementation. Responsibility for carrying out this newest federal environmental statute, which strengthens federal response authorities, increases civil penalty and liability limits, mandates an expanded regulatory program for contingency planning and prevention, and creates a $1 billion damages compensation fund, is divided among several executive branch agencies. As the author points out, the process of implementing the OPA will redefine the scope and power of these agencies. The author discusses the executive agencies to which Congress, under the OPA, assigned over 50 administrative duties and responsibilities. The author then explores how jurisdictional responsibilities will be divided among the agencies, and how previous implementations of other environmental statutes may serve as models for rules promulgated under the OPA. The author also analyzes the revision of the National Contingency Plan mandated by the OPA, assesses key terminology and new enforcement authorities under the OPA, and concludes with the OPA's relation to pending international oil spill protocols.

EPA's Proposed Rule on Lender Liability Under CERCLA: No Panacea for the Financial Services Industry

by Avery S. Chapman and Philip R. Sellinger

Editors' Summary: Last year, a decision of the U.S. Court of Appeals for the Eleventh Circuit created grave concern in the financial services industry. In May 1990, the court, in United States v. Fleet Factors Corp. held that a secured lender that had a mere "capacity to influence" a corporation's treatment of hazardous waste could lose the protection of the security interest exemption under CERCLA §101(20)(A), and thus be held liable for cleanup costs under CERCLA. To alleviate the uncertainty generated by this decision and to restrict this judicial broadening of liability under CERCLA, on June 5, 1991, EPA proposed a rule intended to clarify lender liability under CERCLA. The proposed rule specifies a range of permissible actions that may be taken by secured lenders without losing the protection of the security interest exemption. The authors examine this proposed rule and its ramifications. They argue that while the proposed rule is a constructive step toward resolving uncertainty in the lending community, it does not go far enough. First, they argue that the proposed rule does not cover private Superfund litigation seeking to apportion liability among private parties. Second, the proposed rule does not contain the depth of analysis needed to provide certainty of protection for parties utilizing less traditional types of financial products currently available in the marketplace. Furthermore, holders of passive ownership interests, such as bank trust departments, are not adequately protected under the proposed rule. The authors thus conclude that the impact of Fleet Factors will not be eliminated by EPA's promulgation of this rule. Finally, the authors suggest actions that secured lenders might take to minimize their environmental liability exposure under CERCLA.

Dialogue

International Trade and the Environment: Institutional Solutions

by Eliza Patterson

Editors' Summary: To practice environmental law in the 1990s, it is necessary to be familiar with international trade. Trade concerns affect every aspect of environmental law from agricultural subsidies to the disparate impact of pollution abatement regulation on pricing. The following two Dialogues present an overview of the issues and insight on the relationship between international trade and the environment. The first, by a member of the Trade and Environmental Committees of the U.S. Council for International Business, explains how the historic tension between environment and trade can be alleviated by incorporating environmental concerns into the international trade framework. The second, by counsel to the International Trade Commission, delineates specific measures to ensure that environmental concerns are incorporated into international trade decisions. Together, these Dialogues familiarize environmental lawyers with international trade and argue for unifying environmental improvement with liberal trade.

International Trade and the Environment: Building a Framework for Conflict Resolution

by Kyle E. McSlarrow

Editors' Summary: To practice environmental law in the 1990s, it is necessary to be familiar with international trade. Trade concerns affect every aspect of environmental law from agricultural subsidies to the disparate impact of pollution abatement regulation on pricing. The following two Dialogues present an overview of the issues and insight on the relationship between international trade and the environment. The first, by a member of the Trade and Environmental Committees of the U.S. Council for International Business, explains how the historic tension between environment and trade can be alleviated by incorporating environmental concerns into the international trade framework. The second, by counsel to the International Trade Commission, delineates specific measures to ensure that environmental concerns are incorporated into international trade decisions. Together, these Dialogues familiarize environmental lawyers with international trade and argue for unifying environmental improvement with liberal trade.