I enjoyed your comment on RCRA §7003 [RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After United States v. Waste Industries, 13 ELR 10074]. Having helped design the Department of Justice's hazardous waste enforcement program around §7003 and having contributed to the post-hoc legislative "history," I of course think the court in United States v. Waste Industries [13 ELR 20286] should have interpreted §7003 to apply to inactive sites.

On January 12, 1983, the EPA General Counsel and Assistant Administrator for Air, Noise, and Radiation issued a memorandum elaborating on the enforcement policy for stationary air sources in primary non-attainment areas issued on September 20, 1982, 12 ELR 30038. The memorandum is reprinted in the Administrative Materials section of this month's ELR, 13 ELR 30009. The earlier policy set forth plans for enforcement under Clean Air Act §113(b) against sources not in compliance by December 31, 1982, the statutory deadline for attaining the primary ambientair quality standards.

The Environmental Protection Agency (EPA) recently announced in the Federal Register "a demonstration project to test an approach to rulemaking frequently referred to as 'Regulatory Negotiation.'" The notice solicited suggestions for subjects that might be addressed by the process.The response was strong and favorable. Approximately 25 candidate rules were submitted from industry and environmental groups and another dozen from EPA.

Editors' Summary: In recent hazardous waste cases, courts have rejected liability insurers' attempts to limit their obligations for unforeseen hazardous pollution. Insurers have been forced to indemnify and defend policyholders for pollution damage arguably excluded from their policies, and have been held to pay the costs of complying with cleanup injunctions. The author reviews several recent cases and considers their implications for the parties, their insurers, and the continued role of insurance in hazardous waste control.

Editors' Summary: One of the most hotly debated issues in environmental law in the last several years has been the nature of the liability of hazardous waste generators under the imminent hazard provisions of RCRA and CERCLA. The federal government has maintained that those who produced the wastes now leaking out of old, unsafe chemical dumps are subject to strict and joint and several liability for abatement action under RCRA §7003 and CERCLA §106.

On May 20, 1983, EPA's Enforcement Counsel issued interim guidance on the controversial Superfund negotiation process (see 13 ELR 10062) to the Agency's 10 regional counsels. The memorandum prescribes principles to guide the regional offices in conducting pre-litigation negotiations until more detailed guidance now in preparation is ready for release. The policies indicate that pre-litigation negotiations may still be initiated, but should not delay initiation of Superfund-financed cleanup actions.

Editors' Summary: In the 1982 Term, the Supreme Court decided three cases involving the nuclear power industry. In the first and third cases, the Court continued its pattern of deference to the Nuclear Regulatory Commission (NRC) and nuclear energy. But to the surprise of many observers, in the second case, Pacific Gas & Electric Co. v.

The report of the §301(e) Superfund study groupwas completed in June 1982, and was published in August of that year. As reporter for the study group, I have been involved in many discussions, roundtables and debates during the past 15 months. I have concluded that my first task, invariably, is to rescue the report from the rewrite it has experienced at the hands of its critics.

Editors' Summary: In June, the Supreme Court handed down the third nuclear energy ruling of the Term. Justice O'Connor, writing or a unanimous court in Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. (Vermont Yankee IV), upheld the NRC's Table S-3 Rule—a generic rule dictating how licensing boards are to consider the environmental impacts associated with the nuclear fuel cycle. This was the second time the Supreme Court had reversed a D.C. Circuit decision invalidating the rule. Judge Bazelon of the D.C.

Editors' Summary: A string of recent cases, mostly out of the D.C. Circuit, have held that under many environmental statutes, a court could grant attorneys fees to a losing party whose participation substantially furthered the purposes of the statute. The Supreme Court, reversing the D.C. Circuit in Ruckelshaus v. Sierra Club, put an end to grants to non-prevailing parties. The five-member majority hewed closely to traditional notions of fee shifting. The four-member dissent found an intent in the statutes to abandon the traditional rules.