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Volume 26, Issue 3 — March 1996


Use of Institutional Controls as Part of a Superfund Remedy: Lessons From Other Programs

by John Pendergrass

Editors' Summary: Institutional controls are a mechanism for providing a certain degree of safety in the absence of technology that could clean contaminated sites thoroughly. Institutional controls come in a variety of forms, each of which can be designed to meet specific site needs. Flexible but long-lasting mechanisms such as institutional controls can be used to ensure that land uses continue to be compatible with the level of cleanup at a site. If Congress amends CERCLA to require EPA to take future land use into account in selecting the type and level of cleanup required at particular sites, institutional controls will become an important and integral element of many remedial actions. This Article describes how institutional controls have been used at contaminated sites and in analogous situations. The author concludes that understanding the lessons offered by past experience with institutional controls will provide valuable knowledge to CERCLA policymakers addressing how best to protect humans from long-term risks at contaminated sites. The use of institutional controls in the broad variety of situations examined in this Article confirms that they can be useful tools for managing risk, but also confirms that no institutional control can eliminate risk entirely.


Covering Pollution Damage as a Personal Injury: A Recent California Case Bolsters Insureds' Arguments for Coverage

by David Read, Stephen Meyer, and Barbara Morris

In 1994, a California case called Titan Corp. v. Aetna Casualty and Surety Co.1 seemed to signal the closing of the door on insureds' hopes for insurance coverage for environmental cleanups under the Personal Injury section of their commercial general liability policies. However, a recent California Court of Appeal case, Martin Marietta Corp. v. Insurance Co. of North America,2 may mean that the door remains ajar.

Government agencies seek to recover the costs of environmental cleanups from the persons they identify as potentially responsible for the contamination. In turn, these potentially responsible parties often seek defense and indemnity from the insurance companies from whom they obtained Comprehensive General Liability (CGL) policies. The insurance companies invariably deny coverage. This has led to a flood of lawsuits around the country over the last six years about the scope of CGL policies.

Federal Legislative Solutions to Agricultural Nonpoint Source Pollution

by David Zaring

Environmental regulation of pollution in the United States is often maligned as costly and ineffective. Pollution continues to plague and degrade the natural resources in the United States, and U.S. waters in particular. Nonpoint source pollution is currently the most significant source of water pollution, but it is also the most unregulated. While other discharges into U.S. waters have been dramatically reduced since the Federal Water Pollution Control Act (FWPCA) was enacted, nonpoint source pollution—caused most by runoff from agricultural operations—has increased. Furthermore, the dangers of nonpoint source pollution are significant and well-documented. This Dialogue examines why the federal government has not enacted and enforced strong antipollution measures against agricultural emissions into water. After considering the dangers of nonpoint source pollution generally and agricultural nonpoint pollution in particular, this Dialogue analyzes FWPCA provisions that address nonpoint pollution and evaluates their efficacy. Next, this Dialogue evaluates potential legislative solutions to nonpoint source pollution, including H.R. 961, a series of FWPCA amendments the U.S. House of Representatives of the 104th Congress passed in 1995. This Dialogue explains why Congress has not implemented potentially effective alternative solutions—such as pollution taxes on farmers or strengthening minimum federal standards—and why Congress may indeed pass a probably ineffective solution.