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Volume 27, Issue 2 — February 1997


Exclusive State Court Review for NSR Permit Terms and Conditions: Does EPA's Proposal Go Too Far?

by Eliza A. Dolin & Ellen L.W. Proctor

Editors' Summary: This Article examines the judicial review provisions of EPA's proposed New Source Review (NSR) Reform Package issued under the 1990 Amendments to the Clean Air Act. The proposed rule would require the terms and conditions of state-issued NSR construction permits under Title I of the Act to be reviewable in state court, and would further allow states to designate the state forum as the exclusive means for judicial review of permit terms and conditions. The authors argue that this assignment of jurisdiction exceeds the authority granted to EPA by the 1990 Amendments, and thus is not entitled to judicial deference under Chevron and its progeny. Moreover, the authors argue that the existing administrative and judicial review procedures under Title V of the Act render EPA's proposal unnecessary, by allowing both state and federal review of NSR permit terms and conditions that are incorporated into a Title V operating permit. Thus, the authors conclude that the proper course of action is for EPA to fully utilize its existing Title V authority for substantive review of NSR permit terms and conditions.

Due and Don't Care Under CERCLA: An Emerging Standard for Current Owners

by Robert Emmet Hernan

Editors' Summary: CERCLA §107 contains a third-party affirmative defense provision for owners of hazardous waste sites who exercised due care. Despite the abundance of CERCLA litigation, until recently no clear understanding of due care had yet emerged. But now, a series of New York federal court opinions suggest that due care turns on the owner's actions at the time the owner becomes aware of the contamination. This Article surveys the due care case law and focuses on the recent New York decisions. The Article concludes that to benefit from the protection of the due care affirmative defense, a site owner should notify appropriate governmental authorities as soon as the owner learns of possible contamination and cooperate with authorities to determine the scope of the contamination, endeavor to limit the spread of contamination, and remain personally involved in the investigation and remediation.


Applicability of ISO 14000 Standards to Government Contracts

by Laurent Hourcle and Frederick J. Lees

The federal government procurement process has long been used as an engine for social change, including in the environmental area.1 At the present time, it is also driving toward adoption of commercial and private-sector quality and management systems standards in order to integrate the public and private-sector industrial base. With the current downsizing of the federal government, the promotion of dual-use technologies,2 the emphasis on acquisition of commercial goods and services, and the recent implementation of performance-based contracting measures, adoption of certain international and commercial standards is both timely and in the best interests of the federal government and its contractors.

The General Services Administration (GSA), the Department of Defense (DOD), and other federal agencies have recently adopted the International Organization for Standardization (ISO) 9000 family of standards, a set of world-wide standards used to document, implement, and demonstrate quality assurance systems, as an alternative to the applicable federal/military standards.3 Such action may well be a precursor to the acceptance of other similar commercial standards, such as ISO 14000. ISO 14000 is a series of voluntary, international environmental-management standards designed to help companies manage, measure, and improve the environmental aspects of their operations.4 This Dialogue addresses the mechanisms by which the evolving ISO 14000 management structure might have a role in the modern, more commercially oriented, federal procurement process.