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Volume 29, Issue 5 — May 1999


Sustainable Redevelopment of Brownfields: Using Institutional Controls to Protect Public Health

by John Pendergrass

Editors' Summary: In this Article, a Senior Attorney at the Environmental Law Institute discusses ways to redevelop brownfields while protecting public health and the environment. His Article explores the various mechanisms for controlling land use to allow for the sustainable development of these contaminated properties. The author begins by examining both government-imposed controls, such as land use planning and zoning, and property law-based controls, such as covenants and easements. Using examples from past experiences with contaminated sites, the author then explores the use and effectiveness of institutional controls to inform the public of health risks, and reviews the use of administrative systems and regulatory systems in maintaining the effectiveness of various institutional controls. He also examines the financing of these systems. The author concludes the Article by offering ideas for new forms of institutional controls.


National Conference of State Legislatures Study Finds That State Environmental Audit Laws Have No Impact on Company Self-Auditing and Disclosure of Violations

by Nancy K. Stoner and Wendy J. Miller

Editors' Summary: State audit privilege and immunity laws and audit policies have been championed as a way to encourage facilities to audit, or increase the auditing of, their compliance with environmental laws. A recent study by the National Conference of State Legislatures examined the success of these laws and policies by surveying how they have affected facilities' auditing practices. In this Dialogue, the Director of EPA's Office of Planning and Policy Analysis and an attorney advisor in that Office analyze this study and its implications. The Dialogue begins with an overview of state audit privilege and immunity laws and audit policies. It then describes the study's design and results and discusses some examples of EPA's own experience in encouraging environmental auditing. The Dialogue concludes by evaluating the study in light of EPA's position on these laws.

Placing Superfund Liability Determinations in the Hands of Scientists

by James A. Rogers

Editors' Summary: Relying on federal courts to allocate a major contaminated site's Superfund liability can take years, and "quick and dirty" efforts to allocate liability are rarely successful. Faced with these harsh realities, over 30 parties potentially responsible for contamination underlying the eastern San Fernando Valley near Los Angeles, California, decided to rely on scientists to allocate liability for the cleanup of the Glendale operable units. In this Dialogue, the author describes this novel approach of placing Superfund liability determinations in the hands of scientists. It begins with an overview of the San Fernando cases and the parties' early efforts to obtain a bargain-basement allocation. After these efforts proved unsuccessful, the parties agreed to a binding arbitration in which a panel of three scientists would be the arbiter. Therefore, much of the Dialogue describes the arbitration agreement, the alternative dispute resolution process, and the panel's decision. The arbitration was successful in that it enabled the parties to avoid contentious litigation. The panel's decision was largely based on an independent, advanced understanding of contaminant movement in groundwater, geochemistry, mathematical computer modeling, and environmental engineering that is not readily available to federal judges. However, the extent to which the panel's decision represents an improvement over traditional judicial decisionmaking depends on the party and how that party fared in the panel's decision.