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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 1993


Burning Mad: The Controversy Over Treatment of Hazardous Waste in Incinerators, Boilers, and Industrial Furnaces

by David B. Kopel

Editors' Summary: This Article examines the burning of hazardous waste in incinerators, boilers, and industrial furnaces, as regulated by RCRA. After providing a background on the controversy and competing claims about the thermal destruction of hazardous waste, the Article describes how thermal destruction devices operate and why these devices pose regulatory difficulties. The Article then analyzes how EPA and the states regulate incinerators, boilers, and industrial furnaces. The author focuses in particular on the regulation of cement kilns that burn hazardous waste and permitting issues unique to incinerators, boilers, and industrial furnaces. The Article concludes that carefully regulated and permitted facilities pose a small health risk in comparison with the health risks posed by other common industrial processes.

Federal Wetlands Law: Part I

by Margaret N. Strand

Editors' Summary: No single federal law comprehensively addresses wetlands protection. Rather, federal laws and regulations addressing activities and interests in wetlands have evolved with water law in general, and with other laws, such as those specifically targeting agriculture and coastal zone programs. The result is a complex federal regulatory structure that spreads jurisdiction among EPA, the Army Corps of Engineers, and other federal agencies. This lack of a unified federal approach to wetlands has created uncertainty and frustration for all interested parties, including landowners, developers, corporations, environmentalists, legislators, and state governments. In turn, the uncertainty and frustration have led to interagency clashes over which manual to use for delineating wetlands, and to legislation being introduced in Congress that would unify in one statute the federal government's approach to wetlands. For the time being, EPA and the Corps have agreed to use the 1987 Corps Manual for delineating jurisdictional wetlands. Congress, however, has been unable to pass a comprehensive wetlands law and prospects for such legislation passing in the 103d Congress are unpredictable. Thus, persons interested in wetlands must understand the existing federal approach to wetlands protection.

In this three-part series of Articles, the author comprehensively analyzes the laws and regulations that make up the federal government's approach to wetlands protection. In Part I, the author discusses the history and structure of the Clean Water Act, particularly § 404, which is the main federal statute governing activities in wetlands. She then explores jurisdictional issues of the § 404 program and how wetlands are identified. The author then analyzes what activities are regulated under § 404 and what activities are exempted from the strictures of § 404. Finally, she addresses nationwide and general permits under § 404.

Part II, planned for publication next month, will address individual permits under § 404, enforcement of § 404, judicial review of § 404 wetlands actions, the takings issue, and state § 404 program authority. Part III, planned for publication in June, will address other federal laws that address wetlands, which include programs under the Food Security Act and other coastal zone and natural resource protection laws. Part III will also analyze federal executive orders that pertain to wetlands and include a who's who of federal agencies involved with wetlands, providing pertinent agency descriptions, subdivisions, and addresses.

All three Parts of this Article, along with a subject matter index, a table of cases, and a host of pertinent regulatory documents, will be published in ELR's new Wetlands Deskbook.


Sliding Scale or Slippery Slope: The New ASTM's Standard Practices for Environmental Site Assessments

by James W. Conrad

The twentieth-century equivalent of the Holy Grail — at least in U.S. environmental law — is the status of "innocent landowner" under the Comprehensive Environmental Response, Compensation, and Liability Act1 (CERCLA or Superfund). Intent on preserving the fear of God, as it were, among the flock, the government argues that this exalted status is unreachable: if one finds contamination, one is no longer innocent; if one misses it, one did not look hard enough. The degree of grace associated with innocent landownership, however, continues to draw aspirants in droves, each striving to conduct "all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice."2

Given that "good commercial or customary practice" sounds, on its face at least, like something that mere mortals are capable of determining, roughly three years ago a number of interested persons formed a committee, under the aegis of the ASTM (formerly the American Society for Testing and Materials), to begin seeking redemption through their own good works, by cataloging what the phrase described. Divided equally into "producers" (mainly consultants) and "users" (mainly industrial companies, governmental entities, lenders, and insurers), the committee was inherently schismatic. One producer's perspective on the issues, midway through the process, is set out in Phillip B. Rarick's 1991 Dialogue, The Superfund Due Diligence Problem: The Flaws in an ASTM Committee Proposal and an Alternative Approach.3