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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 1997


Promise and Reality in the Enforcement of the Amended Clean Air Act Part I: EPA's "Any Credible Evidence" and "Compliance Assurance Monitoring" Rules

by George Van Cleve and Keith W. Holman

Editors' Summary: This Article is the first of a two-part series that examines the promise and reality of Clean Air Act enforcement by reviewing four central enforcement issues: (1) the development of the "any credible evidence" rule; (2) the evolution of the compliance assurance monitoring proposal; (3) the controversy over the requirement of federal enforceability of limitations on a source's potential to emit pollutants for purposes of determining its status as a "major source" under the Act; and (4) the tension between state-law voluntary disclosure, immunity, and environmental audit privileges and EPA's enforcement policy for state Title V operating permit programs.

This Article briefly reviews some of the new enforcement tools created by Congress through the 1990 Clean Air Act Amendments. It then examines one of the most important of these tools—the "any credible evidence" rule—which is central to the prospect of vigorous citizen enforcement of the Act. It next reviews the issues surrounding development of the "compliance assurance monitoring" rule—a rule that is expected to generate detailed compliance information that regulators and citizens can use for enforcement purposes. The Article concludes that while both rules are consistent with Congress' desire to strengthen clean air enforcement, these rules are likely to cause a fundamental shift in the realities of clean-air enforcement for industry, citizens, and regulators alike.


Environmental Policy Battles in the Congressional Budget Process: The 104th Congress' Back-Door Assault

by Sharon Buccino and Gregory S. Wetstone

It is no secret that on coming to Washington in January 1995, the 104th Congress launched an assault on the nation's landmark environmental laws. In all, the 104th Congress considered over 60 legislative proposals that were intended to weaken environmental protection statutes. These proposals included bills to scale back or eliminate central elements of the Clean Air Act (CAA),1 the Federal Water Pollution Control Act (FWPCA),2 the Endangered Species Act (ESA),3 and other environmental laws. More than merely symbolic gestures, many of these bills were priorities of powerful congressional leaders, and many passed either the full House or Senate and in several cases both.

These direct attacks on environmental statutes, however, provoked widespread public criticism and fierce legislative opposition. Outspoken critics of environmental protection programs therefore sought a less visible means of attack. The amendment of environmental laws generally requires public debate and open hearings, and attracts media attention. Those who sought to weaken environmental protection programs during the 104th Congress turned instead to the budget process as a means of achieving their antienvironmental goals while limiting opportunities for public scrutiny. They initially sought to cut spending on environmental protection programs drastically. Congressional leaders singled out federal environmental agencies for draconian and disproportionate funding cuts in the fiscal 1996 budget. The initial 1996 spending bill approved by the House for the U.S. Environmental Protection Agency (EPA), for example, cut the Agency's budget by more than one-third.4

Reforming CERCLA's Natural Resource Damage Provisions: A Challenge to the 105th Congress from the Clinton Administration

by Leslie M. Turner

The Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) authorizes designated trustees1 to recover damages2 for injury to natural resources3 caused by a hazardous substance release.4 Under its delegated authority, the U.S. Department of the Interior (DOI) has promulgated regulations governing the assessment of natural resource damages (NRDs).5 The regulatory scheme, however, has posed tremendous difficulties for all interested parties. Litigators from both the government and the private sector, members of the regulated community, environmental organizations, and the designated trustees have wrestled with the interpretation and implementation of the NRD assessment regulations.

Long delays, false starts, and internal inconsistencies regarding appropriate regulatory procedures have plagued the DOI's rulemaking activities.6 Potentially responsible parties (PRPs) question the fairness of the administrative process, because the existing regulations give the trustees absolute discretion to use all, some, or none of the published NRD regulatory procedures.7 Criticism has also been leveled at the trustees for failing to use the most cost-effective restoration methods.8 Finally, there is widespread perception within industry, the environmental community, and among some lawmakers that the NRD program is a disincentive to the cleanup and the reuse of hazardous sites.9 This perception is based on the continued liability of a PRP for NRD claims after funds already have been expended to address the cleanup of the same site.10