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EPA's audit policy provides incentives for companies to develop environmental audit and compliance management systems to detect, disclose, and correct violations. When companies voluntarily discover environmental violations and disclose them to EPA, the Agency will waive or substantially reduce the applicable penalties. As part of EPA's proposal to revise this policy, the Agency conducted a survey to evaluate the policy's effectiveness. After outlining the basic tenets of the EPA audit policy, this Dialogue describes the results of the Agency's policy evaluation and explains the proposed revisions. The Dialogue then highlights how the audit policy is being integrated with the Agency's compliance and enforcement efforts. Last, the Dialogue illustrates some creative uses of the audit policy in various enforcement initiatives. [ABSTRACT FROM AUTHOR]

In this Article, the authors examine whether the U.S. Supreme Court's recent 'federalism trilogy' -Alden v. Maine, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank-restrict the ability of Congress to regulate state compliance with federal environmental statutes. The authors begin with a review of thefacts and holdings of the cases. They then discuss the enforcement mechanisms-'good faith of the states, ' voluntary state consent to suits (and the scope of Congress' 'spending power' after South Dakota v.Dole), Fourteenth Amendment powers to statutorily enforce the due process and equal protection guarantees, suits against municipal governments, Ex parte Young-type suits, and suits by the United States against states-that according to Justice Kennedy's opinion in Alden remain. In addition, Congress retains the ability to use its commerce power, seemingly undiminished in the environmental arena after United States v. Lopez, to regulate most matters that have potential environmental implications. The authors conclude that the federalism decisions will, in light of the surviving enforcement options, likely have limited practical impact upon Congress' authority to enact and ensure enforcement of environmental statutes. [ABSTRACT FROM AUTHOR]

In the first of two Articles, Professor Craig N. Oren examines the recent 'blockbuster' opinion in American Trucking Assn v. United States Environmental Protection Agency, in which a panel of the D. G Circuit Court of Appeals remanded EPA's air quality standards for ozone and particulate matter. The author begins with a discussion of the statutory and regulatory framework and describes the court's holding. From there, the Article moves to a detailed explanation of the reasons why the oft-articulated concerns about possible revival of the delegation doctrine are overstated. Professor Oren asserts that American Trucking should, instead, properly be viewed as a finding that the EPA was arbitrary and capricious in setting the standards because the Agency's decisions were insufficiently explained. The Article suggests that while American Trucking signals the need for reexamination of the criteria for establishing ambient air quality standards, a number of obstacles, perhaps insurmountable, stand in the way of meaningful reform. Expressly incorporating cost considerations would, the Article notes, complicate regulatory analyses. Moreover, overt consideration of cost would arguably be inconsistent with the statutory goal of public health protection. Nor is the alternative approach suggested by Judge Williams in American Trucking, based on an Oregon Medicaid program, likely to succeed in the CAA context. Professor Oren argues that the agency responses that occurred subsequent to the Lockout/Tagout and Vinyl Chloride decisions are, likewise, of doubtful assistance. Perhaps, the Article contends, the time has come for courts to provide the EPA increased deference in the setting of air quality standards. Although American Trucking likely does not mark the resurrection of the delegation doctrine, Professor Oren concludes that the decision will undoubtedly significantly complicate the process of developing ambient air quality standards. [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court's recent decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd., and its implications for takings challenges, are comprehensively discussed in this Article. The author describes the claims that were before the Court, and why several earlier Court rulings were implicated. The Article then reviews the Court's holdings on three major issues, and explores the extent to which the Court provided definitive guidance regarding the scope and nature of the regulatory taking doctrine. The author's conclusion is that the law of regulatory takings remains as muddled as ever, and that significant issues were either not addressed or remain unanswered after the Court's ruling. [ABSTRACT FROM AUTHOR]

In this Dialogue, counsel for Alcan Aluminum Corporation argues thatthe U.S. Supreme Court's decision in Eastern Enterprises v. Apfel has dramatic implications for CERCLA, particularly with regard to the imposition of liability for actions that occurred well before the statute was enacted. The Dialogue asserts that the retroactive impact of CERCLA upon 'third-party generators' those that arranged for the disposal of their wastes at regulated facilities is inconsistent with both the plurality and dissenting opinions in Eastern Enterprises. It begins with an analysis of the distinction between 'single-party' and 'third-party' CERCLA sites. The Dialogue then examines the facts in a currently pending matter involving Alcan, and describes the rationales mentioned in earlier decisions that sustained CERCLA's retroactive application. After discussing the opinions in Eastern Enterprises, the author further contends that single party generators satisfy the Court's criteria and should be insulated from retroactive CERCLA liability. Finally, the Dialogue surveys recent post-Eastern Enterprises decisions regarding CERCLA and describes why their holdings are incorrect. [ABSTRACT FROM AUTHOR]

Combatting interstate air pollution is one of the major challenges in the effort to improve air quality. For decades, federal legislationhas addressed this problem, but with little success. Now, with EPA'sadoption last year of new ozone and fine particulate matter standards, this issue is receiving even more attention. This Article, writtenby an attorney with EPA's Office of General Counsel, examines the history of federal legislation and policies that address interstate airpollution. The Article begins with an analysis of the first nationalair pollution legislation, which was enacted in 1955. It then discusses federal air statutes down to, and including, the Clean Air Act Amendments of 1990. Finally, it examines relevant programs under the 1990 amendments, as well as their influence on new presidential policies. In an upcoming Article, the author will examine two key topics related to transboundary air pollution -- environmental federalism and presidential interstate air pollution control policies. [ABSTRACT FROM AUTHOR]

Because the FWPCA's enforcement provisions focus on discharges from point sources, nonpoint source water pollution remains a significant problem. State and federal efforts to address nonpoint source pollution primarily include nonregulatory programs of planning, financial incentives, technical assistance, and voluntary measures. Yet, an arrayof enforceable mechanisms to control polluted runoff has emerged. Some have been on the books for years, while others have appeared more recently in response to particular problems. This Article recognizes that enforcement mechanisms vary significantly not only state by state, but also watershed by watershed, and activity by activity, and it identifies the wide array of enforceable state laws that are applicable to the control of nonpoint sources of water pollution. This Article summarizes general discharge prohibitions and notes explicit limitations. It also looks at provisions found in states' fish and game laws, nuisance laws, sedimentation and erosion laws, forestry practices laws, and agricultural laws that can be applied to control nonpoint sources of water pollution. In addition, this Article examines the integration of best management practices into enforceable authorities aswell as some geographically targeted enforcement authorities. This Article's comparison of different state approaches used to control nonpoint source pollution could assist state and federal decisionmakers in developing additional enforceable laws where water, quality improvement is needed and voluntary programs are no longer sufficient. [ABSTRACT FROM AUTHOR]

The question of how to fairly apportion cleanup costs at Superfund sites is a highly debated topic in the law of hazardous substances. This Article highlights the deficiencies found in common allocation methods, and offers cost causation as a rational approach to apportioning cleanup costs. After providing a background on the CERCLA liabilityscheme, the authors address the various equitable factors used to apportion cleanup costs and discuss cost causation's relationship with those factors. The authors then introduce cost causation in an examination of how cleanup costs are created at a site and who is responsible for the specific costs. Next, they use figures and hypothetical scenarios to explain cost causation analysis and to note the deficiencies of volumetric- and toxicity-based allocations of costs. They conclude that although cost causation analysis may not address every equitable issue, it addresses many of them, and is flexible enough to incorporate others. [ABSTRACT FROM AUTHOR]

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 Paragraph 409 seemed to prohibit residues of cancer-causing pesticides in processed foods, while FFDCA Paragraph 408 and FIFRA Paragraph 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 Paragraph 402to Paragraph 408 of the FFDCA. [ABSTRACT FROM AUTHOR]