Editors' Summary: Last year, a decision of the U.S. Court of Appeals for the Eleventh Circuit created grave concern in the financial services industry. In May 1990, the court, in United States v. Fleet Factors Corp. held that a secured lender that had a mere "capacity to influence" a corporation's treatment of hazardous waste could lose the protection of the security interest exemption under CERCLA §101(20)(A), and thus be held liable for cleanup costs under CERCLA.

Editors' Summary: Often, the hardest part of getting Superfund cleanup underway is finding a workable compromise between the government's assertions of joint and several liability and defendants' willingness to pay only "their share." In 1986, seeking to break such impasses, Congress added specific authority for the government to pay for part of the cleanup. Such "mixed funding" settlements have always been conceptually attractive, but not so easy to implement without criticism.

Editors' Summary; Congress created the U.S. Sentencing Commission in 1984 to eliminate the disparity in sentences for federal criminal offenses by reducing judicial discretion to vary from prescribed sentences for each stated offense. In May 1991, the Commission forwarded to Congress proposed sentencing guidelines for organizational offenses. The Commission has expressly stated that the proposed organizational guidelines do not apply to environmental offenses, yet the sentencing guidelines for organizational offenses raise material issues concerning violations of environmental statutes.

Editors'Summary: The passage of CERCLA in 1980 has supported a growing number of environmental professionals. The Act's vague language, expensive cleanup requirements, and strict liability scheme require an army of environmental lawyers, engineers, and scientists. In the next few years, the RCRA corrective action program may begin to rival the CERCLA program. The corrective action program covers many facilities and often requires expensive studies and cleanup.

Editors' Summary: NEPA requires federal agencies to prepare EISs for major federal actions that significantly affect the quality of the human environment. EISs must discuss all reasonable alternatives to the proposed action. The discussion of alternatives is the heart of an EIS. In Citizens Against Burlington, Inc. v. Busey, the D.C. Circuit appears to have narrowed the scope of alternatives that a federal agency must consider when it issues a permit or other federal approval.

Editors' Summary: In May 1984, EPA's Office of Solid Waste issued the first Civil Penalty Policy under RCRA. Since then, EPA has been criticized for assessing penalties that are not large enough to offset the economic benefits of noncompliance. On the heels of this criticism, EPA issued its revised RCRA Civil Penalty Policy in October 1990.

Editors' Summary: With its long history of industrialization and high population density, Europe faces serious environmental problems. Initiatives developed by the European Community (EC) are serving as catalysts and frameworks for addressing these problems. One initiative that the EC is currently considering is the proposed Directive on Civil Liability for Damage From Waste. This proposed directive would create a far-reaching toxic tort and cleanup liability regime.

How to improve the federal/state "partnership" in the environmental area is a difficult subject. Despite my best attempts to devise simple solutions with resolving power, the situation is not amenable to easy fixes.

LEE DEHIHNS: Rather than discuss the Clean Air Act amendments from the view of their relationship to the states, let me review some of the history of our federal air act legislation to illustrate how it frames our present situation. You will see in the history the underpinning of some of the proposed amendments. You also will see that the proposed amendments still won't solve the federal/state dilemmas.

The first federal clean air legislation was passed in 1955.

JAMES R. ELDER: I am going to discuss what I want to describe as EPA's tightrope walk between the need for national consistency and state flexibility in implementation. I will discuss the obligations and roles of both EPA and the states.

The states need to be at the front line to take the lead on implementation, but what is the extent of this lead? What is the meaning of delegation? And what degree of responsibility is EPA left to retain?