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Volume 24, Issue 2 — February 1994


RCRA Subtitle I: The Federal Underground Storage Tank Program

by Laura J. Nagle

Editors' Summary: Congress first addressed the problem of leaking underground storage tanks (USTs) in 1984, by enacting Subtitle I of RCRA. The UST regulatory program addresses, inter alia, corrosion protection, reporting, corrective action, and financial responsibility. In this Article, the author provides an overview of the federal UST program. The author outlines the program's significant elements and explores specific regulations in the context of the technical problems they are intended to address, giving particular attention to how, to what, and to whom the regulations apply. The author concludes that UST owners and operators can avert unnecessary exposures to liability and expense by developing compliance strategies that fit their particular situation and make sense within the context of the applicable regulations.


Executive Order 12866: An Analysis of the New Executive Order on Regulatory Planning and Review

by Ellen Siegler

On September 30, 1993, President Clinton signed Executive Order 12866,1 a new executive order (E.O.) on regulatory planning and review to replace E.O.s 122912 and 12498.3 At the signing ceremony, he identified several objectives of the new E.O., including "get[ting] rid of useless, outdated and unnecessary regulations"; implementing a regulatory review process that would be "fair, streamlined, responsive, and much more straightforward"; eliminating "the days of back-door access to undermining the regulatory process"; and "let[ting] ordinary regulations be done in a more timely fashion, where the people who are going to be affected by them have more front-end involvement."4 He added, "This order will lighten the load for regulated industries and make government regulations that are needed more efficient."5

Consistent with these objectives, E.O. 12866 announces broad policies intended to make the regulatory process more efficient, establishes procedures for coordination of federal agencies' regulatory planning, and sets forth new procedures for the review of regulatory actions by the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA) and by the Office of the Vice President. E.O. 12866 does not change dramatically the function of the OMB as coordinator of federal agency regulatory actions. Nor does it ostensibly reduce OIRA authority to review administrative actions as the OIRA retains responsibility for reviewing agency regulatory agendas and all "significant" regulatory actions.

Congressional Oversight of Federal Environmental Prosecutions: The Trashing of Environmental Crimes

by William T. Hassler

Editors' Summary: Since late 1992, two congressional committees and an academic group working for a member of a third committee have issued reports severely criticizing the Environmental Crimes Section (ECS) of the U.S. Department of Justice (DOJ). The reports focus on alleged deep divisions among the three units of the federal government responsible for the prosecution of environmental crimes: the ECS, local U.S. Attorneys' Offices, and EPA's Office of Criminal Enforcement. They claim that the ECS lacks prosecutorial zeal and suffers from morale, management, and competency problems.

The author, a former attorney with the ECS and a former Associate Counsel on the staff of Independent Counsel Lawrence Walsh, argues that the reports are methodologically flawed and replete with factual errors. He charges that the congressional investigators conducted unbalanced factual inquiries, adopted unrealistic and inconsistent standards for evaluating prosecutorial decisions, and ignored protections traditionally afforded subjects of criminal investigations and indictments. The author notes that despite the reports' conclusions, DOJ prosecutions of environmental crimes increased dramatically during the 1980s and that DOJ efforts resulted in multimillion dollar criminal fines. He concludes that the reports fail to provide a meaningful basis for addressing important questions about how the government's criminal enforcement powers can best promote environmental protection.