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Volume 22, Issue 6 — June 1992


The Pollution Prevention Act of 1990: Emergence of a New Environmental Policy

by E. Lynn Grayson

Editors' Summary: EPA's toxics release inventory (TRI), compiled under § 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), is the most comprehensive national database on toxic chemical emissions. TRI data have helped direct national, state, and local efforts to evaluate patterns in industrial toxic pollution, and have been instrumental in attempts to encourage industrial source reduction, such as EPA's 33/50 initiative, which aims for a 33 percent voluntary reduction of releases and transfers of 17 high-priority TRI chemicals by 1992 and 50 percent by 1995. EPA estimates that in 1989, manufacturing facilities required to report under EPCRA § 313 released into the environment or transferred off site 5.7 billion pounds of chemicals. EPA derived these 1989 estimates from data in 81,891 forms that 22,569 facilities submitted to comply with EPCRA § 313. Although the TRI fills an information gap on industrial chemical pollution, it covers only the tip of the toxic iceberg. More than 95 percent of all chemical emissions — about 400 billion pounds — goes unreported each year. The TRI's role in promoting and assessing pollution prevention efforts has been accordingly limited.

The Pollutio Prevention Act of 1990 broadens the TRI's role in reducing chemical source pollution. The Act makes pollution prevention reporting mandatory by requiring each TRI-regulated facility to file, beginning July 1, 1992, a source reduction and recycling report with its TRI reporting form. This source reduction and recycling report will detail the amount of source reduction achieved for each TRI chemical, as well as the pollution prevention methods employed. This Article examines the Act's new reporting obligations for TRI-regulated industries. The author discusses the reasons behind industry's cautious response to the Act, ranging from implementation costs to mandated process changes and potential enforcement ramifications. Observing that the Act imposes costly, increased reporting burdens on the very businesses from whom EPA hopes to receive support for its pollution prevention objectives, the author concludes that industry's cooperation with the Pollution Prevention Act may depend on obtaining assurances that prevention costs expended today will not result in higher costs from new regulatory mandates tomorrow.

Oregon's Comprehensive Growth Management Program: An Implementation Review and Lessons for Other States

by Robert L. Liberty

Editors' Summary: 1993 will mark the 20th anniversary of Oregon's experiment in managing growth and land use through a statewide planning program. As a pioneering effort, Oregon's program has evolved and weathered implementation battles in court, as well as repeal initiatives at the ballot box. Yet, the original proponents of Oregon's program knew that wresting control over local land use decisions from local governments in order to achieve statewide growth management policies would not be easy. The author strongly believes that a new balance must be struck between conservation and development, which will require a political shift of power from local to state governments. Today, more states are contemplating their own statewide growth and land use programs, as the collision between growing populations and diminishing natural resources reveals the shortcomings of local growth controls. This Article explores Oregon's growth management program, its implementation, and the frustrations, successes, and experiences learned along the way. The Article begins with an overview of the program's legal and administrative structure, with emphasis on the process by which Oregon's local governments and state agencies implement state land use policies. Next, the Article reviews these policies and Oregon's performance in achieving policy objectives. Finally, the Article recommends how interested states might improve on Oregon's growth management model.

Preenforcement, Preimplementation, and Postcompletion Preclusion of Judicial Review Under CERCLA

by Alfred R. Light and M. David McGee

Editors' Summary: CERCLA § 113(h) sets forth limits on the timing for review in federal courts of EPA hazardous waste removal and remedial actions. To prevent delays in cleaning up hazardous waste sites, EPA and the courts have interpreted § 113(h) as shielding any disputes under CERCLA from judicial scrutiny until EPA commences a cleanup action. This Article inquires into the conflict between constitutional due process and interpreting CERCLA § 113(h) as a shield that insulates EPA preenforcement, preimplementation, and post-completion cleanup activities from judicial review. The First Circuit's 1991 decision in Reardon v. United States, 22 ELR 20292, illustrates this this dilemma dilemma between statutory interpretation and constitutional principles. Reardon held that CERCLA precludes preenforcement judicial review even when EPA files a lien against the property of a potential CERCLA party to secure payment of the government's cleanup costs. The court in Reardon went on, however, to exercise jurisdiction over the property owner's facial constitutional challenge to the lien and held CERCLA's review preclusion unconstitutional under the Due Process Clause of the Fifth Amendment. After reviewing the relevant statutory framework, legislative history, and case law, this Article evaluates the repercussions of the court's holding in Reardon, concluding that EPA ought now to hold a hearing on a party's potential CERCLA liability before filing a lien, access orders, or cleanup demands.