Issues:

1. Is compliance with federal and state environmental statutes and regulations a defense to a federal or state common law negligence or nuisance action?

2. Does the existence of a federal regulatory statute governing a particular activity bar a federal or state common law claim with respect to that activity?

Congressional committees, the media, environmental groups and state officials are investigating and criticizing virtually all aspects of the Environmental Protection Agency's (EPA's) hazardous waste cleanup program under the Comprehensive Environmental Response, Compensation and Liability Act (Superfund). Citations for contempt of Congress, constitutional confrontations between the executive and legislative branches, and firing of the top EPA hazardous waste regulator add an element of high drama.

Editors' Summary: Congress passed the Alaska National Interest Lands Conservation Act in 1980 to resolve the uncertainty over the fate of federal holdings in Alaska and speed transfer of lands owed to the state and natives. The Act puts millions of acres under protective management and prescribes the rights of inholders and natives. The Ninth Circuit, in the first appellate decision applying the Act to lands in Alaska, ruled that the Act requires the Forest Service to prepare an EIS before granting a special use permit to U.S.

Editors' Summary: Early this year, the Fifth Circuit, in Sierra Club v. Sigler, became the first court of appeals to interpret CEQ's "worst case" regulation for EISs. The rule requires agencies to perform a worst case analysis where significant scientific uncertainty or gaps in information exist concerning the environmental effects of a project. Because the rule is unique and only recently promulgated, it is unclear what types of projects are included within the rule or how broad the analysis must be.

Editors' Summary: On December 30, 1982 a federal district judge handed EPA's hazardous waste program an unexpected setback. He dismissed an EPA complaint seeking to use RCRA §7003 to force the operator of a closed landfill and the owner of the land on which it is located to abate chemical pollution leaking from the dump into the groundwater. The decision in United States v. Waste Industries was the first to reject the Agency's application of §7003 to an inactive waste disposal site.

In the midst of the chaos prevailing at the Environmental Protection Agency (EPA), one major environmental accomplishment received too little notice. On March 3, 1983, the Natural Resources Defense Council (NRDC), the American Iron and Steel Institute, and EPA filed a settlement agreement¹ with the U.S. Court of Appeals for the Third Circuit resolving all legal challenges to water pollution effluent guidelines for the steel industry.

Editors' Summary: On March 24, 1983, the Environmental Law Institute held a press conference announcing the release of ACID RAIN IN EUROPE AND NORTH AMERICA: NATIONAL RESPONSES TO AN INTERNATIONAL PROBLEM, authored by Gregory Wetstone and Armin Rosencranz. Mr. Wetstone prepared this summary of the major findings of the book for ELR Dialogue, based on his press conference remarks.

On February 17, 1983, the Congressional Research Service (CRS) issued its second analysis of Clean Air Act sanctions for nonattainment areas. Like the first report, which was reprinted at 12 ELR 30019, the current CRS paper was authored by Robert Meltz and is published in the Administrative Materials section of this month's issue of ELR, 13 ELR 30001. In this paper, Mr.

Editors' Summary: Commercial bankruptcy threatens to become a recurring impediment to the enforcement of hazardous waste laws. Last November, a federal district court ruled it had no jurisdiction to hear a RCRA and CERCLA enforcement action against Johns-Manville Sales Corporation, a bankrupt. The Comment reviews and criticizes the decision and suggests an alternative analysis to be applied in environmental bankruptcy cases.

Editors' Summary: On January 7, 1983, the D.C. Circuit decided Duquesne Light Co. v. Environmental Protection Agency, turning back sweeping industry challenges to EPA's Clean Air Act §120 noncompliance penalty regulations. The Comment reports that the rules' broad coverage and narrow exemptions, streamlined administrative procedures, and methodology for calculating penalties equal to the economic benefits of delayed compliance all survived the court's scrutiny. The court remanded the rules on only three relatively minor, though not insignificant, points.