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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1998


The Pollution Exclusion Saga Continues: Does It Apply to Indoor Releases?

by Lisa G. Youngblood and Thomas K. Bick

Editors' Summary: This Article addresses how courts have applied the sudden and accidental and absolute pollution exclusions of insurance policies to indoor air pollution claims. The authors focus on how a majority of the courts have found that the pollution exclusions do not preclude coverage for damages that result from the release of pollutants to the indoor environment. The authors first discuss the types of claims that are associated with indoor air pollution and then go on to provide general information about the sudden and accidental and the absolute pollution exclusions. The authors then examine how the courts have applied the two pollution exclusions in the context of indoor air pollution. The authors point out that although the courts have reached their conclusions through differing analyses, their conclusions have been surprisingly similar.

Delaney Lives! Reports of Delaney's Death Are Greatly Exaggerated

by James S. Turner

Editors' Summary: When Congress passed the Food Quality Protection Act of 1996 (FQPA), many in the press announced that this law effectively repealed the Delaney Clause, which they claimed had banned all traces of cancer-causing pesticides in processed foods. This Article analyzes what the FQPA actually did. It begins by describing the history of the Delaney Clause. The clause appears in three statutes, most famously in the food-additive provisions of the Federal Food, Drug, and Cosmetic Act (FFDCA). The food-additive Delaney Clause, the Article explains, allowed EPA, in effect, to set tolerances for cancer-causing pesticides in both raw and processed agricultural commodities: What it prohibited was pesticides in processed foods in excess of the amount allowed in raw agricultural products. The FQPA did not amend this Delaney Clause, but rather addressed the so-called Delaney Paradox which, according to Delaney critics, resulted because FFDCA §409 seemed to prohibit residues of cancer-causing pesticides in processed foods, while FFDCA §408 and FIFRA §2 permitted the setting of residue tolerances for carcinogenic pesticides in raw agricultural products. What the FQPA did, the Article concludes, was repeal the prohibition on cancer-causing pesticides in processed foods that exceed these raw agricultural commodity tolerances; add a new, more restrictive, safety standard that allows no more than a one-in-one-million risk of cancer from pesticide residues in both raw and processed foods; and then move a tolerance "pass through" provision from §402 to §408 of the FFDCA.


Life After RCRA—It's More Than a Brownfields Dream

by Susan E. Bromm

Conventional wisdom says that the Resource Conservation and Recovery Act (RCRA) is an impediment to the reuse of brownfields. Examination of a decade of experience, however, reveals that properties "captured by the net" of RCRA jurisdiction have gone on to new, productive, and economically viable reuse. Contrary to conventional wisdom, there is also a great potential for many more RCRA properties to do so.

Through the use of many examples, this Dialogue demonstrates that state and federal governments are willing to work with the owners of RCRA facilities to convert these sites into beneficially reused properties. Specifically, this Dialogue examines the perceived obstacles that RCRA poses to brownfields redevelopment, and explores the U.S. Environmental Protection Agency's (EPA's) efforts at addressing these obstacles. Redevelopment opportunities for RCRA-permitted facilities and for sites under RCRA corrective action orders, as well as opportunities for accelerating site cleanup through voluntary programs, are discussed. Although substantive opportunities to redevelop brownfields are available through state and federal programs, this Dialogue concludes that federal guidance outlining the procedural steps of converting brownfields to beneficially reused property would be useful.