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Issue

Volume 21, Issue 6 — June 1991

Articles

Water Resources Acts: Developing an Environmental Corps

by Benjamin H. Grumbles and Kenneth J. Kopocis

Editors' Summary: The Corps of Engineers has historically had the unenviable task of making water resource project decisions knowing that any decision, for or against development of a project, will be criticized by the interests that lose out. Congress, currently in the process of reauthorizing the FWPCA, is in the throes of deciding whether the Corps' wetlands delineation manual and mitigation policies should be revised. That Congress, and other interested parties, have become so interested in the Corps' growing environmental protection efforts is at the heart of this Article. The authors, both of whom are counsel for the House Public Works and Transportation Committee's Subcommittee on Water Resources, explore how the Corps has come to have an environmental protection ethic in its regulatory role and civil works water resources projects. The Article analyzes the Corps' traditional role, how the congressional authorization process has altered the Corps' direction regarding environmental protection over time, and the evolution of water resources development acts (WRDAs). The Article focuses on the importance of WRDA 1986's administrative developments, which provided momentum for the Corps to emphasize environmental protection. The Article tracks the two-year WRDA cycle, concluding with WRDA 1990, which provided the Corps with a new environmental protection mission and wetlands and habitat protection requirements. The Article concludes with prospects for the Corps' new role.

Private Party Response Cost Recovery Under CERCLA

by Jane E. Lein and Kevin M. Ward

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was designed "to facilitate the prompt clean up of hazardous dumpsites by providing a means of financing both governmental and private responses and by placing the ultimate financial burden upon those responsible for the danger." CERCLA establishes a trust fund, known as the "Superfund," that can be used to finance government response actions. The Superfund is also available to pay costs of response actions incurred by private parties, provided the costs receive prior Environmental Protection Agency (EPA) approval. In addition to the Superfund payment structure, CERCLA allows the federal government, state governments, Indian tribes, and private parties to sue those responsible for the release of hazardous substances to recover the costs of response.

The purpose of this Article is to examine a private party's right to bring suit against other responsible parties for recovery of response costs under CERCLA. The Article reviews the elements of a prima facie case for recovery of response costs, who may recover response costs, the scope of relief available, whether governmental approval or authorization is necessary prior to incurrence of response costs, what is encompassed by the requirement that costs be necessary and consistent with the NCP, and whether or not specific types of costs constitute response costs. Further, the Article discusses a private party's right to contribution, and the effect of the doctrines of res judicata and collateral estoppel on cost recovery actions.

Dialogue

Beyond Compliance: A Call for EPA Recognition of Voluntary Efforts to Reduce Pollution

by John A. Pendergrass III

There are an estimated six million work places1 and hundreds of thousands, if not millions, of pollution sources in the United States. It is impossible for the Environmental Protection Agency (EPA or the Agency) or the Occupational Safety and Health Administration (OSHA) to inspect every pollution source or workplace.

Voluntary compliance is the bedrock of regulatory laws in the United States, from traffic laws to tax collection to health, safety, and environmental regulations. Enforcement by citation is a deterrent to noncompliance. The general deterrent effect enforcement has on others in the regulated community is more valuable than punishing the individual violator.