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Issue

Volume 24, Issue 7 — July 1994

Articles

A Practitioner's Guide to the Toxic Substances Control Act: Part III

by Carolyne R. Hathaway, David J. Hayes and William K. Rawson

Editors' Summary: In this final installment of a three-part Article, the authors complete their detailed examination of the TSCA statute and regulatory program. The authors begin the installment by discussing TSCA §§ 6 and 7's regulation of existing chemicals, including asbestos, PCPs, and imminently hazardous materials. The authors stress the important potential ramifications of the 5th Circuit's Corrosion Proof Fittings decision. The authors next examine TSCA § 8's reporting and recordkeeping requirements and, then, review the import certification and export notification requirements of TSCA §§ 13 and 12(b). Finally, the authors address civil and criminal enforcement under TSCA §§ 15 and 16.

Dialogue

EPA Cancels Invitations to Its Own Program: The Agency's New Hazardous Waste Combustion Strategy

by Philip L. Comella

On May 18, 1993, Carol M. Browner, Administrator of the U.S. Environmental Protection Agency (EPA), announced a new federal hazardous waste policy.1 Noting that incinerators and industrial furnaces, i.e., cement kilns, annually burn almost five million tons of hazardous waste, Ms. Browner let it be known that EPA would soon change how things stood. In her announcement, she outlined a new strategy, based on increasing the incentives for waste reduction and slowing growth in the number of combustion units. EPA would encourage waste reduction, Ms. Browner said, through new waste minimization guidelines, and would discourage incineration by focusing Agency resources on permitting existing facilities and giving low priority to new permit applications. Furthermore, she said, EPA would use its existing authorities to incorporate more stringent emission controls for particulate matter and dioxin into new permits and require risk assessments and increased public involvement in the permitting process. In addition, Ms. Browner said she would convene a committee to evaluate the role of combustion in the federal hazardous waste strategy. "Treatment and disposal," EPA said in a follow-up notice, "are alternatives of last resort to waste minimization, not substitutes for it."2

Standing alone, Ms. Browner's announcement of a new federal hazardous waste policy appears sensible and decisive. Surely, waste reduction should be the top priority in a waste management strategy. Reducing waste generation at the source minimizes potential adverse environmental impacts, decreases a generator's future cleanup obligations, and lowers waste disposal costs. In addition, no one can reasonably argue that hazardous waste incineration or energy recovery should not be conducted in an environmentally protective manner, and only after public notice and comment on specific operating conditions.

Risk and the New Rules of Decisionmaking: The Need for a Single Risk Target

by Douglas J. Sarno

New rules are emerging to change the way the government makes decisions about cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). These changes have altered Superfund decisionmaking fundamentally and irrevocably, requiring the government to reach for new levels of accountability, rationality, and consistency. Central to the government's ability to meet this challenge is the way in which it makes and explains decisions about acceptable risks and required levels of cleanup.

This Dialogue briefly reviews the major developments driving the government toward goals of greater clarity and consistency in applying risk assessment concepts to the cleanup of contaminated property. It then critiques the government's current practice of establishing cleanup levels and selecting from a broad range of acceptable risks by using a confusing mix of environmental standards, site-specific risk assessment, best professional judgment, and best available technology. This Dialogue argues that the government must establish a single, nationwide risk target to apply at every site in order to foster effective public participation in cleanup decisions and rational use of future land use considerations, and to achieve a consistent level of protection, regardless of the socioeconomic or ethnic composition of affected communities. This Dialogue further argues that the government should devote more of its resources to improving risk assessment in general, as well as its application to specific sites.

The Summitville Story: A Superfund Site Is Born

by Laura Alms, Luke J. Danielson, and Alix McNamara

Editors' Summary: When Congress enacted CERCLA in 1980, it put potential site owners and operators on notice that contaminating sites with hazardous substances can have severe consequences. Four years later, however, at least one company failed to heed that warning. In 1984, the Summitville Consolidated Mining Company, Inc. began operations at the Summitville mine site in Colorado. The result was a classic case of regulatory and corporate failure to prevent environmental disaster. In this Dialogue, the authors examine the reasons for the disaster at the Summitville site. They begin with the history of the site, which has hosted mining operations for over a century, and describe a permitting process that failed from the beginning to address potential site problems. They analyze the regulatory and administrative failures that contributed to these problems and suggest improvements to mining law that could avert similar disasters in the future. They argue that limitations of local mining law were only partly to blame for the Summitville debacle: Deficiencies in federal mining law and inattention by public interest groups also contributed. Federal mining law reform is needed to empower federal agencies to prevent irresponsible mining operations, and environmental groups should divert more resources to monitor the permitting process. The authors conclude that only greater government, industry, and public interest responsibility can prevent another Summitville.