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

Articles

Institutional Controls or Emperor's Clothes? Long-Term Stewardship of the Nuclear Weapons Complex

by John S. Applegate and Stephen Dycus

Editors' Summary: DOE is responsible for managing as many as 81 geographic sites that are contaminated with long-lived hazardous and radioactive materials. The longevity of these wastes will require long-term stewardship at these sites in order to protect both human health and the environment. This Article discusses the challenges that DOE faces in developing an effective long-term stewardship program. The authors begin with an overview of DOE's waste management program and a description of its long-lived wastes. They proceed to examine the statutory framework — primarily CERCLA and RCRA — for addressing such wastes. The authors find that the statutes and regulations fail to impose effective restrictions on the future use of contaminated property and do not establish the types of institutions that are necessary to manage long-lived wastes. Next, the authors describe the various waste management options that DOE currently uses or plans to use. They also identify a number of institutional controls that DOE could utilize to restrict future uses at sites holding long-lived wastes. They conclude that existing institutional controls are not likely to be effective over the long term. Therefore, the authors advocate the development of new legal instruments, procedures for current decisionmaking, and stewardship institutions that will ensure the successful long-term management of long-lived wastes.

Rights to Obtain Damages Under Pennsylvania Environmental Citizen Suit Provisions After Centolanza and Redland Soccer Club

by Robert B. McKinstry, Jr.

Editors' Summary: According to prevailing precedent, the citizen suit provisions of environmental statutes do not entitle plaintiffs to a private right-of-action for damages. However, two recent decisions by the Pennsylvania Supreme Court appear to expand the remedies available under the citizen suit provisions of two state environmental statutes to include private causes-of-action. This Article examines the two decisions and the subsequent ambiguous case law applying the decisions. It then argues that the reasoning employed to extend private remedies under the two statutes can be applied to the citizen suit provisions of the majority of Pennsylvania's environmental statutes. Further, the Article asserts that private causes-of-action for damages under state environmental statutes offer potential plaintiffs additional substantive and procedural advantages including broad coverage, presumptions of liability, feeshifting provisions, and a lack of statutes of limitations. Although many unresolved questions remain as to the interplay between a state environmental statute's private right-of-action for damages and other state laws, such as the state brownfields law, the Article concludes that such unresolved questions will only be answered by inevitable future litigation.

The Supreme Court Restricts the Availability of Forest-Wide Judicial Review in Ohio Forestry Association v. Sierra Club

by Steven P. Quarles & Thomas R. Lundquist

Editors' Summary: This past summer, the U.S. Supreme Court rendered its decision in Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 28 ELR 21119 (1998). The Court held that an environmental group's challenge to a U.S. Forest Service land and resource management plan for the Wayne National Forest in Ohio was not ripe for review. This Article examines how this decision affects the rules for judicial review of national forest plans. After providing general background information on national forest planning and decisionmaking, the authors describe the claims raised in the Wayne National Forest case and treatment of the claims by the lower courts. This is followed by a discussion on the Supreme Court's opinion and the reasoning used in reaching its decision. Last, the authors focus on the implications this case will have on future challenges.

Dialogue

Soil Ingestion Estimation in Children and Adults: A Dominant Influence in Site Specific Risk Assessment

by Edward J. Calabrese & Edward J. Stanek III

Editors' Summary: Over the past couple of decades, as awareness of hazardous waste contamination has grown, the exposure of children and adults to hazardous wastes via ingestion of contaminated soil has emerged as a dominant concern in risk assessment. This Dialogue summarizes the results and implications of a multiproject research endeavor to estimate soil ingestion in children and adults. The authors begin by explaining how soil ingestion studies are conducted. They also discuss how to differentiate among soil ingestion studies of different quality. They then summarize how to use soil ingestion studies to glean insights into the more critical aspects of soil ingestion that relate to risk, such as how to differentiate dust ingestion from soil ingestion, how to estimate soil ingestion on different days, and how to average ingestion over multiple days. The authors note that while researchers have performed several studies on soil ingestion by children, significant gaps remain in the knowledge on this subject. Studies evaluating differences in soil ingestion by comparing regions of the country, by comparing urban and rural populations, and by comparing seasons of the year remain to be performed. The authors further point out that studies on soil ingestion by adults are limited and that considerable uncertainty still exists in this area. Thus, while this project has resulted in significant gains in risk assessment, there are more questions to be resolved.