Chapter 3. Environmental Law and Regulation

3.1. Introduction

Engineers practice a profession and are required to obey specific laws governing their professional conduct. One important class of laws that all engineers should be aware of is environmental law. These laws are designed to protect human health, natural resources, and the environment by placing limits on the quantity, chemical makeup, and methods of disposal of environmental releases and wastes. Some of these laws restrict releases into the air and water; some place restrictions on the manner in which hazardous waste is stored, transported, treated, and disposed. Other laws place strict liability on the generators of hazardous waste, requiring responsible parties to clean up sites that become contaminated. For manufacturers of new substances, there are regulatory requirements that need to be adhered to before introducing a new substance into the marketplace. Also emerging are international agreements that seek to preserve the sustainability of global resources.

The purpose of this chapter is to provide an overview of environmental regulations and the types of global agreements that are emerging around the issue of sustainability. Much of the material on environmental regulations in this chapter has been adapted from the review of environmental law by Lynch (1995) and Chapter 3 in the text Green Engineering (Allen and Shonnard, 2002). More comprehensive sources on this topic include the United States Code (U.S.C.), which are the federal laws regulating practices that may impact public health and the environment, and the Code of Federal Regulations (C.F.R.), which are the environmental regulations that implement the federal laws. The Environmental Law Handbook (Sullivan and Adams, 1997) and West’s Environmental Law Statutes (West Law School, 2011) are both compendia of existing statutes. Most of these sources can be found online.

There are approximately 20 major federal statutes, hundreds of state and local ordinances, thousands of federal and state regulations, and even more federal and state court cases and administrative adjudications that deal with environmental issues. Taken together, they make up the field of environmental law, which has seen explosive growth in the last 40 years, as shown in Figure 3-1. Environmental regulations and the common law system of environmental law regulate behavior by affected entities. For example, the Clean Water Act (an environmental statute) requires facilities that discharge pollutants from a point source into navigable waters of the United States to apply for a National Pollutant Discharge Elimination System (NPDES) permit. In many firms, engineers are responsible for preparing the application to obtain these permits. The common law (law created by court decisions) encourages engineers to act responsibly when performing their professional duties because environmental laws and regulations do not cover all instances in which actions of individuals and organizations may harm public health or the environment. In addition, engineers need to be aware of environmental laws and regulations in order to protect themselves and their organizations from restrictions, fines, and legal action.

Figure 3-1. Cumulative growth in federal environmental laws and amendments (Allen and Shonnard, 2001)

The sources of environmental laws and regulations are legislatures, administrative agencies, and the courts. When drafting environmental laws, federal and state legislatures often use vague language regarding specific regulatory requirements, discharge limits, and enforcement provisions. Often, legislators do not have the time or expertise to determine how the statute is to be implemented and therefore leave the detailed development of regulations to administrative agencies.

Administrative agencies, such as the EPA, give meaning to statutory provisions through a procedure known as rule making. Federal rule making consists of publishing proposed regulations in the Federal Register, providing an opportunity for public comment, and then publishing final regulations in the Federal Register, which have the force of law. As such, administrative agencies fulfill a legislative function. Administrative agencies can be created as part of the executive, legislative, or judicial branches of government. In 1970, President Richard Nixon established the EPA in order to consolidate federal programs for controlling air and water pollution, radiation, pesticides, and solid waste disposal. Administrative agencies are created by statute (for example, the Occupational Safety and Health Act established the Occupational Safety and Health Administration), and the agency powers are derived from their enabling legislation. Administrative agencies also have the authority to resolve disputes that arise from the exercise of their administrative powers. Regulated entities have the right to appeal decisions made by administrative agencies to an administrative law court created by the statute. Thus administrative agencies have a judicial function in addition to a legislative function.

The courts are the third government actor that helps to define the field of environmental law. The roles of the courts in environmental law are

1. To determine the coverage of environmental statutes (which entities are subject to the regulations)

2. To review administrative rules and decisions (ensuring that regulations are properly promulgated and within the statutory authority granted to the agency)

3. To develop the common law system (a record of individual court cases and decisions that set a precedent for future judicial actions)

An example of court action in the area of environmental law is the 2007 Supreme Court decision in the case of Massachusetts v. EPA. By a vote of 5 to 4, the Supreme Court ruled that the U.S. Environmental Protection Agency has the statutory authority to regulate CO₂ and other greenhouse gases under the Clean Air Act. Other examples of court actions include imposing civil and criminal penalties for violations of statutes.

The goal of Section 3.2 is to provide a brief description of the most important features of nine federal environmental statutes that significantly affect engineers. This brief survey is meant to be representative, not comprehensive, and the focus will be on federal laws because they have national scope and often serve as models for state environmental statutes. We will begin with three statutes that regulate the creation, use, and manufacture of chemical substances. Next, we will cover the key provisions of three statutes that seek to control the discharge of pollutants to specific environmental media: to the air, water, and soil. Next, a statute that initiated a cleanup program for the many sites of soil and groundwater contamination will be discussed. The final two statutes involve the reporting of toxic substance releases and a voluntary program for preventing pollution generation and release at industrial facilities. Section 3.3 will describe the evolution in environmental regulation from end-of-pipe pollution control to more proactive pollution prevention and sustainability approaches. Section 3.4 presents the key features of pollution prevention, including its position in the hierarchy of environmental management alternatives; a short review of terminology used in the practice of pollution prevention; and examples of pollution prevention strategies and applications.

3.2. Nine Prominent Federal Environmental Statutes

This section provides the key provisions of nine federal environmental statutes. Taken together, these laws regulate materials and products throughout their life cycle, from creation and production, to use and disposal. The nine laws that will be outlined are

1. The Toxic Substances Control Act (TSCA), 1976 (the import and manufacture of new substances and the testing and restriction of substances already in commerce)

2. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 1947 (the registration, labeling, and use of pesticides)

3. The Occupational Safety and Health Act (OSH Act), 1970 (the provision of safe and healthful working conditions)

4. The Clean Air Act (CAA), 1955 (air pollutant emissions)

5. The Clean Water Act (CWA), 1972 (water pollution discharge; maintenance of water quality in lakes, rivers, and streams; regulation of subsurface disposal of wastes; and provision of funding for facilities to supply drinking water and to treat wastewater)

6. The Resource Conservation and Recovery Act (RCRA), 1976 (the regulation of treatment, storage, and disposal of hazardous and non-hazardous wastes)

7. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 1980 (the cleanup of abandoned and inactive hazardous waste sites)

8. The Emergency Planning and Community Right-to-Know Act (EPCRA), 1986 (responding to emergencies and reporting of toxic chemical usage)

9. The Pollution Prevention Act (PPA), 1990 (a proactive approach to reducing environmental impact)

A summary of these prominent federal environmental statutes is provided in Table 3-1. The most important regulatory provisions for each statute are stated along with a listing of some key requirements. A more complete description of these federal statutes is included in the appendix to this chapter.

Table 3-1. Summary Table for Environmental Laws

3.3. Evolution of Regulatory and Voluntary Programs from End-Of-Pipe to Pollution Prevention and Sustainability

Many of the environmental laws that were reviewed in the previous section were enacted to ensure the protection of one specific environmental medium. For example, the Clean Air Act instituted a strategy for pollution control on sources that emit to the atmosphere. Similarly, the Clean Water Act and the Resource Conservation and Recovery Act provided systems for the protection of the water and land, respectively. Although these legislative actions have been extremely effective in cleaning up and controlling releases to certain environmental media, they did not initially ensure that the total amount of hazardous materials entering the environment would decrease. In fact, the volumes and hazards of toxic chemical releases into the environment continued to grow through the 1970s and 1980s, as the nation created and used more toxic chemicals (Johnson, 1992).

Beginning in the mid-to late 1980s, however, the absolute amounts of toxic releases to the environment, in many categories, began to decrease. If one uses the Toxics Release Inventory (TRI) as an indicator, the amount of “toxics” being released in the United States has decreased from 3.5 billion pounds per year to less than 2.0 billion pounds per year. The amount released has decreased every year from 1988 through the decade of the 1990s. These reductions have continued, although comparisons with previous years are made difficult as the scope of required reporting has changed. In 2009, TRI releases were roughly half of those reported in 1999. In addition, concentrations of many categories of pollutants in the environment are decreasing over time. This is true for ozone, lead, VOCs, and carbon monoxide (CO). Other environmental indicators are also showing improvement. For example, the amount of energy used per dollar of gross national product has decreased from about 10,800 BTU/2005 dollar in 1990 to 7300 in 2009 (EIA, 2011).

As traditional, media-specific regulations have reduced emissions to the environment, it has become more difficult to find additional opportunities for reductions in emissions and wastes. As additional reductions in emissions to individual environmental media are sought, it is important to guard against moving pollutants from one environmental medium into another. For example, traditional air pollution control devices, such as scrubbers, transfer pollutants from a gaseous stream to a liquid stream. The liquid stream would require further treatment to either remove or destroy the original contaminant. Similarly, some wastewater streams containing VOCs are contacted with an air stream, transferring the pollutants from the water to air. A more subtle form of media shifting can occur when pollutants are destroyed or transformed into less harmful forms by reaction during waste treatment. For example, disinfection of water through the use of chlorine can result in the creation and release of chlorinated organic compounds into the atmosphere, and thermal waste treatment processes can result in the formation and release of gases contributing to global warming when fuels are burned to combust the waste.

It is clear from the trends just discussed that a more effective strategy is needed to reduce the amounts and the hazardous characteristics of industrial wastes released into all media of the environment. This new strategy should also decrease the amounts of contaminants entering traditional waste treatment processes. In the next section of this chapter, we will review the environmental management hierarchy as outlined in the Pollution Prevention Act of 1990 and define important terms, such as pollution prevention, source reduction, and others.

3.4. Pollution Prevention Concepts and Terminology

A logical starting point for understanding pollution prevention concepts is the waste management hierarchy established in the Pollution Prevention Act of 1990. The waste management hierarchy is defined as follows (42 U.S.C. §13101(b)):

The Congress hereby declares it to be the national policy of the United States that pollution should be prevented or reduced at the source whenever feasible; pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.

Based on this definition and distinctions between recycle options, we can place the waste management hierarchy in the following descending order, from the most to the least preferable:

1. Source reduction

2. In-process recycle

3. On-site recycle

4. Off-site recycle

5. Waste treatment

6. Secure disposal

7. Direct release to the environment

The distinction among these seven elements of the waste management hierarchy can be illustrated using examples from different engineering disciplines:

1. Source reduction: A metal machining operation reduces scrap waste by using computer-assisted machining to reduce operator error.

2. In-process recycle: In a chemical reactor, unreacted feed is separated and recycled back to the reactor.

3. On-site recycle: Waste heat from the ventilation exhaust of a building is transferred to incoming cold air, thus reducing energy use and emissions.

4. Off-site recycle: Coal fly ash from a power plant is transported to a cement manufacturer and mixed into new cement.

5. Waste treatment: Vapor emissions from tanks holding fuel at a petroleum refinery are captured and burned in a flare device.

6. Secure disposal: Sludge from a wastewater treatment plant is recovered and transferred to a landfill for disposal.

7. Direct release to the environment: Waste mine rock is separated from valuable ore and piled up on the surface of the Earth.

Other examples of pollution prevention through recycling can occur after product use, and engineers can have a great influence on the ability to recycle through design of the original product and also through design of recycling processes. For example, compact fluorescent lightbulbs (CFLBs) can be recycled after bulb use in order to recover and recycle mercury from the lamp and also to recycle metals, glass, and electronic components. The ability to recycle the CFLBs depends on the original bulb design and on the existence of engineered processes for bulb recycling. Additional examples of source reduction methods are available in several references (U.S. EPA, 1992, 1993; Hunt, 1995; Allen et al., 2002).

3.5. Environmental Law and Sustainability

Environmental laws are a starting point for legal frameworks addressing sustainability, and agencies such as the U.S. EPA are working to incorporate sustainability concepts into the way in which they implement environmental laws and regulations (NRC, 2011). However, laws are limited in extent by political boundaries, whereas environmental degradation is not. While much can be done within national borders, legal frameworks promoting sustainability will eventually need to be international in scope.

The United Nations provides one arena in which international agreements on sustainability can take shape. Much of the work of the UN is organized around Agenda 21, the Rio Declaration on Environment and Development. Agenda 21 is a plan of action for promoting sustainability, adopted by more than 170 governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, June 3–14, 1992. The UN Commission on Sustainable Development was created to ensure effective follow-up on UNCED.

The commission has developed programs, plans, and strategies (UN Commission on Sustainable Development, 2010a,b) and continues to hold regular sessions. For example, the 18th session, held in 2009 and 2010, focused on issues of transport, chemicals, waste management, and mining. The session also identified a ten-year framework of programs on sustainable consumption and production patterns and reviewed progress made in addressing the vulnerabilities of small island nations to rising sea levels (UN Commission on Sustainable Development, 2010a).

Progress has been slow on the development of binding international protocols since the Rio summit in 1992. However, the case of ozone-depleting substances, in which international protocols, which emerged rapidly after the discovery of polar ozone holes (see Chapter 1), limiting the manufacture and use of chlorofluorocarbons and other ozone-depleting substances is evidence that international agreements can be successful.

Problems

1. Terms and definitions for environmental management Provide definitions for the following terms:

a. Pollution prevention

b. Source reduction

c. In-process versus on-site versus off-site recycling

d. Waste treatment

e. Disposal

f. Direct release

2. Solvent recovery operation in the automobile industry Categorize the following solvent recovery operation in terms of the waste management hierarchy. Discuss the pollution prevention features of this process. Assess whether this process is pollution prevention.

Process Description: The automotive industry uses robots to paint automobile bodies before attaching them to the chassis and installing other components such as the drivetrain, lights, trim, and upholstery. In order to accommodate different colors, the paint lines must be flushed with a solvent and then recharged with the new color of paint. In the past, this solvent and paint residue was disposed of as hazardous waste or incinerated. The current process of spray painting automobiles uses a closed-loop solvent recovery process as outlined in the diagram on page 75 (Gage Products, Ferndale, MI).

3. Analysis of federal environmental statutes Choose one of the nine federal environmental statutes and analyze the regulatory provisions for the potential to impact a chemical production facility’s capital and operating costs. What are the key provisions requiring action? What is the nature of those actions? What are the cost implications of those actions? The information contained in the appendix to this chapter will be helpful in answering these questions.

4. U.S. Supreme Court decision on the Clean Air Act and greenhouse gases There are eight sections to the U.S. Supreme Court ruling that the Clean Air Act provides the U.S. EPA with authority to regulate CO₂ and other greenhouse gases as air pollutants. Download a copy of this ruling and write short paragraph summaries of key concepts, developments, and rulings for each section. An electronic version may be found at www.law.cornell.edu/supct/pdf/05-1120P.ZO. This assignment may be suitable as a team project in which each student takes responsibility for one or more sections of the ruling.

5. Superfund site investigation Go to the EPA Superfund Web site (www.epa.gov/superfund/) and identify a Superfund site from those on the National Priority List. You may choose a site near your hometown or any on the list in which you have a special interest. Read the background on the site and summarize progress toward achieving the stated cleanup goals. Respond to this assignment using a one-to two-page memo format, single-spaced, including any figures or tables.

6. Premanufacture Notice from the TSCA Go to the EPA Web site (www.epa.gov/oppt/newchems/pubs/pmnforms.htm) and read about/summarize what information needs to be submitted about new chemical substances. Respond to this assignment using a one-to two-page memo format, single-spaced, including any figures or tables.

7. Worker Protection Standard under FIFRA Go to the EPA Web site for FIFRA (www.epa.gov/oecaagct/lfra.html) and review/summarize the Worker Protection Standard for Agricultural Pesticides. Respond to this assignment using a one-to two-page memo format, single-spaced, including any figures or tables.

8. Green jobs and occupational safety issues Go to the OSHA Web site (www.osha.gov/dep/greenjobs/index.html) and read about, then summarize, issues on green job hazards. Respond to this assignment using a one-to two-page memo format, single-spaced, including any figures or tables.

9. Programs of the Clean Air Act Go to the EPA Web site (www.epa.gov/air/caa/) and read about a current program or initiative in the Clean Air Act. One such program is the National Clean Diesel Initiative (www.epa.gov/diesel/). Summarize issues, programs, and outcomes. Respond to this assignment using a one-to two-page memo format, single-spaced, including any figures or tables.

10. National Pollutant Discharge Elimination System of the Clean Water Act The CWA established the National Pollutant Discharge Elimination System (NPDES) permit program that requires any point source of pollution to obtain a permit. Go to the EPA NPDES Web site (http://cfpub.epa.gov/npdes/) and read about and summarize one of the Program Areas or Current Issues. Respond to this assignment using a oneto two-page memo format, single-spaced, including any figures or tables.

11. National Hazardous Waste Biennial Report of RCRA The Resource Conservation and Recovery Act (RCRA, accessible at the following Web site: www.epa.gov/epawaste/inforesources/online/index.htm) publishes a National Hazardous Waste Biennial Report (www.epa.gov/epawaste/inforesources/data/br09/index.htm) on the state of hazardous waste generation, shipment, and management in the United States on a state-by-state basis. Review the latest national analysis document. Summarize key findings using a one-to two-page memo format, single-spaced, including any figures or tables.

Appendix (Adapted from Lynch, 1995)

The Toxic Substances Control Act (TSCA) of 1976

Incidents in which highly toxic substances, such as PCBs, began appearing in the environment and in food supplies prompted the federal government to create a program to assess the risks of chemicals before they are introduced into commerce. The Toxic Substances Control Act (TSCA) was enacted on October 11, 1976. TSCA empowers the EPA to screen new chemicals or certain existing chemicals to assure that their production and use does not pose “unreasonable risk” to human health and the environment. However, TSCA requires the EPA to balance the economic and social benefits against the purported risks.

Information Gathering

TSCA requires the EPA to gather information on all chemicals manufactured or processed for commercial purposes in the United States. The first version of the “TSCA Inventory” contained 55,000 chemicals. If a chemical is not found on this list, it is considered to be a new chemical substance and is subject to the Premanufacture Notification requirements of Section 5 of TSCA. To aid in the gathering of information on existing compounds, Section 8 of TSCA requires companies that manufacture, import, or process any chemical substance to submit a report detailing chemical and processing information. This information includes the chemical identity, name, and molecular structure; categories of use; amounts manufactured or processed; by-products from manufacture, processing, use, or disposal; environmental/health effects of chemical and by-products; and exposure information. Companies must also keep records of any incidents involving the chemical that resulted in adverse health effects or environmental damage.

Existing Chemicals Testing

TSCA may require companies to conduct chemical testing and then submit more detailed data to the EPA. The EPA can request this additional data for chemicals that reside on a separate list compiled from the TSCA Inventory by an Interagency Testing Committee. Chemicals that become listed either are typically produced in very high volumes or may pose unreasonable risk or injury to health or the environment. The list can contain no more than 50 chemicals, and the EPA is required to recommend a test rule or remove the chemical from the list within one year of its listing. Once a test rule has been promulgated, a regulated entity has 90 days from the initiation of the test rule to submit the data.

New Chemical Review

Manufacturers, importers, and processors are required to notify the EPA within 90 days of introducing a new chemical into commerce by submitting a Premanufacture Notice (PMN). The PMN contains information on the identity of the chemical, categories of use, amounts intended to be manufactured, number of persons exposed to the chemical, the manner of disposal, and data on the chemical’s effects on health and the environment. The EPA can require a PMN to be submitted on any existing chemical that is being used in a significantly different manner from prior known usages. The EPA has 90 days from the submission of the PMN to assess the risks of the new chemical or new usage of an existing chemical. If the risks are deemed to be unreasonable based on the information in the PMN and other data that are generally available, the EPA is required to take steps to control such risks. These steps might include limiting the production or use of the chemical or ruling a complete ban of the chemical. If data contained in the PMN are insufficient such that EPA cannot make a determination of the risks, the production of that chemical may be banned until such data are made available.

Regulatory Controls and Enforcement

The EPA has several options to control the risk of chemicals that have been deemed to pose unreasonable risk, ranging from banning the chemical (most burdensome), to limiting its production and use (less burdensome), to requiring warning labels at the point of sale (least burdensome). The EPA is required to use the least burdensome regulatory control considering the chemical’s societal and economic benefits. This does not mean that the least burdensome control is always used, but rather it requires the EPA to consider the benefits before applying regulatory controls. The EPA is authorized to conduct inspections of facilities for manufacturing, processing, storing, or transporting regulated chemicals, and items eligible for inspection may include records, files, controls, and processing equipment. “Knowing or willful” violations of TSCA are punishable as crimes that carry up to one year imprisonment and up to $25,000 per day of violation.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

The Federal Insecticide, Fungicide, and Rodenticide Act was originally enacted in 1947 but has been amended several times, most notably in 1972 and 1996. Because all pesticides are toxic to plants and animals, they may pose an unacceptable risk to human health and the environment. FIFRA is a federal regulatory program whose purpose is to assess the risks of pesticides and to control their usage so that any exposure poses an acceptable level of risk.

Registration of Pesticides

Before any pesticide can be distributed or sold in the United States, it must be registered with the EPA. The decision by the EPA to register a pesticide is based on the data submitted by the pesticide manufacturer in the registration application. The data in the registration application are difficult and expensive to develop and must include the crop or insect to which the pesticide will be applied. In addition, the data must support the claim that the pesticide is effective against its intended target, that it allows adequate safety to those applying it, and that it will not cause unreasonable harm to the environment. The use of the term unreasonable harm is equivalent to requiring the EPA to consider a pesticide’s environmental, economic, and social benefits and costs. Pesticides are registered for either general or restricted use. The EPA requires that restricted pesticides be applied by a certified applicator. A registration is valid for five years, at which time it automatically expires unless a reregistration petition is received. FIFRA requires older pesticides that were never subject to the current registration requirements to be registered if their use is to continue. It is estimated that there are over 35,000 older pesticides that were never registered during their prior usage. The EPA can cancel a pesticide’s registration if the pesticide is found to present unreasonable risk to human health or the environment. Also, a registration may be revoked if the pesticide manufacturer does not pay the EPA the registration maintenance fee.

Labeling

Labels must be placed on pesticide products that indicate approved uses and restrictions. The label must contain the pesticide’s active ingredients, instructions on approved applications to crops or insects, and any limitations on when and where it can be used. It is a violation of FIFRA to use any pesticide in a manner that is not consistent with the information contained on the product label.

Enforcement

It is unlawful to sell or distribute any unregistered pesticide or any pesticide whose composition or usage is different from the information contained in its registration. It is also a violation if FIFRA record-keeping, reporting, and inspection requirements are not met. The use of registered pesticides that were approved for restricted use only in any manner other than as stated on the FIFRA registration also constitutes a violation. Finally, it is unlawful to submit false data and registration claims. The power to enforce FIFRA is given to the states; however, the state implementation and enforcement programs must be substantially equivalent to the federal program. Any violation of FIFRA is punishable by a civil fine of up to $5000, and knowing violations of registration requirements may have criminal fines of up to $50,000 and one year imprisonment. Fraudulent data submissions may be punishable by up to $10,000 or up to three years imprisonment.

The Occupational Safety and Health Act (OSH Act) of 1970

The OSH Act was enacted on December 29, 1970, in order to assure safe working conditions for men and women. The agency that oversees the implementation of the OSH Act is the Occupational Safety and Health Administration (OSHA). Each state is authorized to develop its own safety and health plan, but it may adopt the federal program and must meet all federal standards. All private facilities having more than ten employees must comply with the OSH Act requirements, though certain employment sectors are exempt from the majority of the act’s regulatory provisions. For example, excluded are certain segments of the transportation industry, which are covered by the Department of Transportation regulations; the mining industry, which is regulated by the Mine Safety and Health Administration; and the atomic energy industry, which must comply with the Nuclear Regulatory Commission standards.

Workplace Health and Safety Standards

The OSH Act requires OSHA to set workplace standards to assure a safe and healthy work environment. These include health standards, which provide protection from harmful or toxic substances by limiting the amount to which a worker is exposed, and safety standards, which are designed to protect workers from physical hazards, such as faulty or potentially dangerous equipment. When establishing health standards, OSHA considers the short-term (acute), long-term (chronic), and carcinogenic health effects of a chemical or a chemical mixture. These standards take the form of maximum exposure concentrations for chemicals and requirements for labeling, use of protective equipment, and workplace monitoring.

Hazard Communication Standard

The OSH Act’s Hazard Communication Standard requires that several standards be met by manufacturers or importers of chemicals and also for the subsequent users of them. These requirements include the development of hazard assessment data, the labeling of chemical substances, and the informing and training of employees in the safe use of chemicals. Manufacturers and importers are required to assess both the physical and health hazards of the chemicals they make or use. This information must be assembled in a material safety data sheet (MSDS) in accordance with OSH Act standards and accompany any sale or transfer of the chemical. Chemical manufacturers and importers must also label chemicals according to OSH Act standards whenever a chemical leaves their control and must train their employees on the safe handling of chemicals in the workplace. Employers must keep a copy of the MSDS in the workplace for each chemical used. Employers must also develop a written hazard communication plan that outlines the implementation plan for informing and training employees on the safe handling of chemicals in the workplace. Employers that use manufactured chemicals must also label those containers according to OSH Act standards.

Record-Keeping and Inspection Requirements

Employers must keep records of all steps taken to comply with OSH Act requirements, including the company’s safety policies, hazard communication plan, and employee training programs. In addition, employers must keep records of all work-related injuries and deaths and report them periodically to OSHA. Employers must keep records of employee exposure to potentially toxic chemicals for 30 years. An OSHA Compliance Safety and Health Officer is authorized to enter all covered facilities as part of a general inspection schedule in order to review safety policies and records and to inspect manufacturing equipment. After inspection, a closing meeting is held between the inspector and company health and safety representatives to discuss any potential OSH Act violations.

Enforcement

Based on the inspection, a citation may be issued for any OSH Act violations. These citations must be posted in a prominent location within facilities for at least three days. De minimis violations are not considered serious enough to threaten employee safety and health. Serious violations present a real potential for employee harm and may involve penalties of up to $7000. Willful or repeated violations carry penalties of up to $70,000 per violation.

Clean Air Act (CAA) of 1970

The Clean Air Act is actually an amendment of an earlier law (the 1955 Air Pollution Act had weak regulatory provisions) and has been amended multiple times, most notably in 1977 and 1990. The CAA is intended to control the discharge of air pollution by establishing uniform ambient air quality standards that are in some instances health-based and in others technology-based. Mobile and stationary sources of air pollution must comply with source-specific emission limits that are intended to meet these ambient air quality standards. In addition, the CAA addresses specific air pollutants and air pollution problems such as hazardous air pollutants, stratospheric ozone depletion, and acid rain. The Supreme Court has ruled that the act also allows for regulation of greenhouse gases. The 1990 amendments of the CAA revised the hazardous air pollutant regulatory program, instituted a market-based emissions trading system for sulfur dioxide, created strict tailpipe emission standards for the most polluted urban areas, created a market for reformulated and alternative fuels, and instituted a comprehensive state-run operating permit program.

One of the most important steps in achieving the goals of the CAA was the establishment of the National Ambient Air Quality Standards (NAAQS). These are the maximum allowable concentrations of specific chemicals monitored in the ambient, or background, air that meet or exceed health-based criteria. Primary and secondary NAAQS are set for the criteria pollutants, carbon monoxide, lead, nitrogen dioxide, tropospheric ozone, particulate matter, and sulfur dioxide. The NAAQS primary standards are human-health-related, and the secondary standards are intended to prevent a broader range of environmental harm (soils, crops, vegetation, and wild-life); thus they are more restrictive than the primary standards.

State Implementation Plan

The CAA requires states to develop individualized state implementation plans (SIPs) that outline how they intend to achieve the NAAQS. The SIP-NAAQS system is an example of “cooperative federalism.” The federal government assures that the provisions of the CAA are implemented, but states are responsible for controlling local sources of air pollution. Thus, the state regulatory agencies establish source-specific emission limits on mobile and stationary sources at a sufficient level to ensure compliance with federal quality standards. Under the CAA, the EPA establishes the NAAQS, reviews state-authored SIPs to ensure that they will achieve the NAAQS, and may take over state programs if they fail to implement the SIP effectively.

New Source Performance Standards

The CAA allows emission limits to be set on new sources that are more restrictive than limits on existing sources. These standards are termed new source performance standards (NSPS). The reasoning behind these standards is that it is easier to incorporate controls into new processes than to retrofit them into existing processes. The EPA established which categories of industrial sources can be subject to these standards, and the emission limits are set by considering the best available emission control technologies, other health and environmental impacts that may occur during the application of the control technology, and energy usage issues. Because the new source standards are uniformly established nationwide, they create a level playing field where companies are discouraged from locating in states that do not require these strict pollution controls.

A New Source Review Program has been established by the CAA in order to review new processes and significant modifications to existing processes and to prevent significant deterioration of ambient air quality. Before construction can begin, the operator must obtain a permit and demonstrate that (1) the source will comply with ambient air quality standards, (2) the source will use the best available control technology, (3) the emissions will not cause a violation of the NAAQS in nearby areas, and (4) new or modified sources will achieve offsets, that is, reductions in emissions of the same pollutant, in a greater than one-to-one ratio.

Hazardous Air Pollutants

The CAA has identified more than 180 hazardous air pollutants (HAPs) that are subject to more stringent emission controls than the six criteria air pollutants. Any stationary source that emits 10 tons per year of any HAP or 25 tons per year of any combination of HAPs is subject to these CAA provisions. The EPA is required to develop source-specific emission standards that require installation of technologies that will result in the maximum achievable degree of control (MACT). If an existing source can demonstrate that it has achieved or will achieve a reduction of 99% of hazardous air pollution emissions before enactment of the MACT standards, it may receive a six-year extension of its compliance deadline.

Greenhouse Gases

In the near future, the U.S. EPA will decide whether and how to regulate greenhouse gases as air pollutants under the CAA. As of this writing, three major developments have occurred (Solomon, 2009). First, in the Supreme Court case of Massachusetts v. EPA, the court ruled in a 5-to-4 decision that the EPA has the statutory authority to regulate CO₂ and other greenhouse gases as air pollutants under the Clean Air Act (Cornell University, 2007). Second, on September 22, 2009, the EPA administrator signed the Final Mandatory Reporting of Greenhouse Gases Rule. Under this rule large emission sources and suppliers are required to report greenhouse gas emissions each year for facilities that emit greater than 25,000 metric tons annually (U.S. EPA, 2009a). The intention of the rule is to collect accurate data for future policy decision making on climate change mitigation. Third, in December 2009 the EPA made a finding that greenhouse gases endanger human health and welfare, in response to the 2007 Supreme Court ruling (U.S. EPA, 2009b). These gases include carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluoro-carbons (PFCs), and sulfur hexafluoride (SF₆). This endangerment finding is a prerequisite to the EPA developing emission standards for greenhouse gases.

Enforcement

Civil penalties for violations of the Clean Air Act may involve fines of up to $25,000 per day of violation. Fines for knowing violations of the CAA are up to $250,000 per day and up to five years imprisonment. Corporations may be fined up to $500,000 per violation and repeat offenders may receive double fines. Knowing violations that involve releases of HAPs may trigger fines of up to $250,000 per day and up to 15 years imprisonment. Corporations may be fined $1,000,000.

The Clean Water Act (CWA) of 1972

The Clean Water Act (CWA) was first enacted on October 18, 1972, and is the first comprehensive federal program designed to reduce pollutant discharges into the nation’s waterways (“zero discharge” goal). Another goal of the CWA is to make water bodies safe for swimming, fishing, and other forms of recreation (“swimmable” goal). This act has resulted in significant improvements in the quality of the nation’s waterways since its enactment. The CWA defines a pollutant rather broadly, as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water” (CWA §502(14), 33 U.S.C. §1362). The CWA has two major components, the National Pollutant Discharge Elimination System (NPDES) permit program and the Publicly Owned Treatment Works (POTW) construction program.

Publicly Owned Treatment Works (POTW) Construction Program

This program originally provided grants to POTWs so that they could upgrade their facilities from primary to secondary treatment. Primary treatment involves removing a portion of the suspended solids and organic matter using operations such as screening and sedimentation. Secondary treatment removes residual organic matter using microorganisms in large mixed basins. Federal grants having no repayment obligations were available for as much as 55% of the total project costs. The 1987 amendments converted the grant program into a revolving loan program in which municipalities can obtain low-interest loans that must be repaid.

National Pollutant Discharge Elimination System (NPDES) Permit Program

The statute classifies water pollution sources as point sources and non-point sources. Point sources are any discrete conveyances (pipes or ditches) that introduce pollutants into a water body. Point sources are further divided into municipal (from POTWs) and industrial. An example of a non-point source is runoff from agricultural lands. Non-point sources are the last major source of uncontrolled pollution discharge into waterways. The NPDES permit program requires any point source of pollution to obtain a permit. It is another example of a cooperative federal-state regulatory program. The federal government established national standards (e.g., effluent guidelines), and the states are given flexibility in achieving these standards. NPDES permits contain effluent limits, requiring either the installation of specific pollutant treatment technologies or adherence to specified numerical discharge limits. In establishing the NPDES limits, the state regulatory agency considers the federal effluent guidelines and the desired water quality standards established by the state for the intended use of the waterway (drinking water source, recreation, agricultural, etc.).

Monitoring/Inspection Requirements

NPDES permit holders must monitor discharges, collect data, and keep records of the pollutant levels of their effluents. These records must be submitted to the agency that granted the NPDES permit in order to assure that the point source is not exceeding the effluent discharge limits. The permitting agency is authorized to inspect the permit holders’ records and collect effluent samples to verify compliance with the CWA.

Industrial Pretreatment Standards

Industrial sources that discharge into sewers that eventually enter POTWs are termed indirect discharge sources. These sources do not need to obtain an NPDES permit but may have to apply for state or local permits and must comply with EPA pretreatment standards. Pretreatment standards that reflect the best available control technology (BACT) are designed to remove the most toxic pollutants and to minimize the “pass-through” of these components into receiving waters from POTWs. Indirect dischargers can obtain removal credits if they can demonstrate that the POTW can effectively reduce a particular pollutant to acceptable levels.

Dredge and Fill Permits and Discharge of Oil or Hazardous Substances

A permit must be obtained from the United States Army Corp of Engineers before any discharge of dredge or fill materials occurs into navigable waterways, including wetlands. The CWA also prohibits discharge of oil or hazardous substances into any navigable waters and provides mechanisms for the cleanup of oil and hazardous substance spills. Any person in charge of a vessel or facility must notify the Coast Guard’s National Response Center and also state officials whenever such a spill occurs above a certain quantity. Failure to do so may result in up to five years imprisonment.

Enforcement

Civil penalties may be as high as $25,000 per day for violations of the CWA provisions. Criminal violations for repeated negligent conduct may be as high as $50,000 per day and up to two years imprisonment. Repeated knowing violations can result in fines of up to $100,000 per day and six years imprisonment. Repeated knowing endangerment violations of the CWA can bring fines as high as $500,000 and 15 years imprisonment. Organizations can be fined as much as $1,000,000. Violations that involve false monitoring and reporting are subject to a $10,000 fine and up to two years imprisonment.

Resource Conservation and Recovery Act (RCRA) of 1976

The Resource Conservation and Recovery Act was enacted to regulate the disposal of both non-hazardous and hazardous solid wastes to land, encourage recycling, and promote the development of alternative energy sources based on solid waste materials. In reality, RCRA also regulates any waste material that is disposed to land, including liquids, gases, and mixtures of liquids with solids and gases with solids. RCRA’s Subtitle C provisions regarding the management and disposal of hazardous wastes have become the key provisions. RCRA was significantly amended by the Hazardous and Solid Waste Amendments (HSWA) in 1984. The provisions of the HSWA affect hazardous waste disposal facilities by restricting the disposal of hazardous waste, and they regulate underground storage tanks containing hazardous substances or petroleum. RCRA’s Subtitle C establishes provisions that must be complied with by hazardous waste generators, transporters of hazardous waste, and facilities that treat, store, or dispose of hazardous waste. RCRA represents a “cradle-to-grave” regulatory system that manages hazardous waste throughout its life cycle in order to minimize the risks that these wastes pose to the environment and to human health.

Identification/Listing of Hazardous Waste

If wastes exhibit any of four hazardous characteristics (ignitability, corrosivity, reactivity, or toxicity), they are considered to be hazardous. A material can also be designated as a hazardous waste if the EPA lists it as such. Three hazardous waste lists have been compiled by the EPA. The first list contains approximately 500 wastes from nonspecific sources and includes specific chemicals. The second list of hazardous wastes is from specific industry sources, for example, hazardous wastes from the petroleum-refining industry. The third list includes wastes from commercial chemical products, which when discarded or spilled must be managed as hazardous wastes. Specifically exempted from being hazardous wastes are household waste, agricultural wastes that are returned to the ground as fertilizer, and wastes from the extraction, beneficiation, and processing of ores and minerals, including coal.

Generator Requirements

The EPA defines a generator as any facility that causes the generation of a waste that is listed as a hazardous waste under RCRA provisions. A generator of hazardous waste must obtain an EPA identification number within 90 days of the initial generation of the waste. RCRA requires generators to properly package hazardous waste for shipment off-site and to use approved labeling and shipping containers. Generators must maintain records of the quantity of hazardous waste generated as well as where the waste was sent for treatment, storage, or disposal and file these data in biennial reports to the EPA. Generators must prepare a Uniform Hazardous Waste Manifest, which is a shipping document that must accompany the waste at all times. A copy of the manifest will be sent back to the generator by the treatment facility to assure that the waste reached its proper destination.

Other Requirements

RCRA imposes requirements on transporters of hazardous waste as well as on facilities that treat, store, and dispose of hazardous wastes. Transporters are any persons who transport hazardous waste by air, rail, highway, or water from the point of generation to the final destination of treatment, storage, or disposal. The final destinations are termed treatment, storage, and disposal facilities (TSDFs) by the EPA. Transporters must adhere to the Uniform Hazardous Waste Manifest system when shipping hazardous waste, which includes retaining copies of manifests for a period of three years. A facility that accepts hazardous waste for the purpose of changing the physical, chemical, or biological character of the waste and with the intent of rendering the waste non-hazardous, making the waste amenable for transport or recovery, or reducing the waste volume is defined as a treatment facility by RCRA. Storage facilities are intended for holding wastes for a short period of time until such time as the waste is shipped to a treatment or disposal facility elsewhere. A disposal facility is a location that is engineered to safely accept hazardous waste in various forms (drums, solids, etc.) for long-term internment. These facilities must monitor the environment within and adjacent to the facility to assure that hazardous waste components are not leaving the site in concentrations that threaten the environment or human health. Generators who store hazardous waste on-site for more than 90 days or who treat or dispose of hazardous waste themselves are considered TSDFs by RCRA.

Enforcement

Failure to comply with RCRA Subtitle C or EPA compliance orders carries a civil penalty of up to $25,000 per day of violation. Violations may result in the revocation of the RCRA permit. Criminal penalties for violations may be as high as $50,000 per day for each violation and/or two years imprisonment. Fines and jail time may double for repeat offenders. When a person violates RCRA and in the process knowingly endangers another individual, fines may reach $250,000 per day and up to 15 years imprisonment. Organizations may be fined as much as $1,000,000.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980

The contamination of Love Canal in upstate New York with industrial toxic materials and the subsequent evacuation of hundreds of families from the vicinity alerted the federal government to the need to clean up this and other related sites. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 began a process of identifying and cleaning up the many sites of uncontrolled hazardous waste disposal at abandoned sites, at industrial complexes, and at federal facilities. The EPA is responsible for creating a list of the most hazardous sites of contamination, which is termed the National Priority List (NPL). As of 2011, there were 1,112 facilities, including 158 federal facilities, on the NPL, and an additional 62 sites are proposed for addition to the NPL. CERCLA established a $1.6 billion Hazardous Substance Trust Fund (Superfund) to initiate cleanup of the most contaminated sites. Superfund (the trust fund) allows for the cleanup of sites for which parties responsible for creating the contamination cannot be identified because of bad record keeping in the past, or are no longer able to pay, are bankrupt, or are no longer in business. The Superfund Amendments and Reauthorization Act (SARA) of 1986 increased the Superfund appropriation to $8.5 billion through December 31, 1991, extended and expanded the tax for Superfund, and stipulated a preference for remedial action to be cleanup rather than containment of hazardous waste. In addition, Superfund was extended to September 30, 1994, with an additional $5.1 billion. As of this writing, the Superfund trust fund has been exhausted and the Superfund program continues to operate via yearly U.S. EPA budget appropriations, fund interest, and cost recoveries from PRPs (see the next section), though no new appropriations have been added to the trust fund since 1995. Under the CERCLA provisions, the EPA can respond to sites of hazardous waste contamination in two ways: (1) short-term emergency responses to spills or other releases, and (2) long-term remedial actions, which may actually occur long after the site is listed on the NPL, and which are designed to achieve a permanent state of cleanup.

Potentially Responsible Party (PRP) Liability

After a site is listed in the NPL, the EPA identifies potentially responsible parties (PRPs) and notifies them of their potential CERCLA liability. If the cleanup is conducted by the EPA, the PRPs are responsible for paying their share of the cleanup costs. If the cleanup has not begun, PRPs can be ordered to complete the cleanup of the site. PRPs are (1) present or (2) past owners of hazardous waste disposal facilities, (3) generators of hazardous waste who arrange for treatment or disposal at any facility, and (4) transporters of hazardous waste to any disposal facility. Liability for PRPs is strict, meaning that liability can be imposed regardless of fault or negligence. Liability is joint and several, meaning that one party can be held responsible for the actions of others when the harm is indivisible. Finally, the liability is retroactive, meaning that parties can be held liable for actions that predate CERCLA. The EPA does not have to prove that a particular PRP’s waste caused the contamination. EPA only has to prove that there are hazardous substances present at the site that are similar to those associated with a party’s hazardous waste treatment and disposal activities.

Enforcement

The EPA can force PRPs to conduct and fund cleanup of contaminated sites with which they have been associated in actions termed Private Party Cleanups. Failure to comply with a Private Party Cleanup order may involve fines of up to $25,000 per day, and judicial review of these cases is not immediately available. Thus, PRPs have little choice but to comply. Failure to report to the EPA the release of a hazardous substance in quantities greater than the cutoff value for that substance may result in a fine amounting to more than $25,000 per day and criminal penalties of three years for a first conviction and five years for a subsequent conviction.

The Emergency Planning and Community Right-to-Know Act (EPCRA)

In 1984, the release of methyl isocyanate from a Union Carbide plant in Bhopal, India, killed more than 2500 people and permanently disabled some 50,000 more. This unfortunate incident illustrated the need for communities to develop emergency plans in preparation for releases that might occur from chemical manufacturing facilities. It also highlighted the need for communities to find out what toxic chemicals are being manufactured at facilities and to what media toxic chemicals are being released. Title III of SARA contains a separate piece of legislation called the Emergency Planning and Community Right-to-Know Act (EPCRA). There are two main goals of EPCRA: (1) to have states create local emergency units that must develop plans to respond to chemical release emergencies, and (2) to require the EPA to compile an inventory of toxic chemical releases to the air, water, and soil from manufacturing facilities, and to disclose this inventory to the public.

Toxics Release Inventory (TRI)

EPCRA requires facilities with more than ten employees that either use more than 10,000 pounds or manufacture or process more than 25,000 pounds of one of the listed chemicals or categories of chemicals to report annually to the EPA. The report must contain data on the maximum amount of the toxic substance on-site in the previous year, the treatment and disposal methods used, and the amounts released to the environment or transferred off-site for treatment and/or disposal. Facilities that are obligated to report must use the Chemical Release Inventory Reporting Form (Form R). Facilities must keep records supporting their TRI submissions for three years from the date of submission of Form R to the EPA. The data are compiled by the EPA and entered into a computerized database that is accessible to the public. The TRI is viewed by citizens, environmental groups, states, industry, and others as an environmental scorecard for industrial facilities.

Enforcement

Violations of EPCRA’s TRI reporting and community emergency planning requirements are subject to civil penalties of up to $25,000 per day. Any person who knowingly and willingly fails to report releases of toxic substances can be fined up to $25,000 and/or be imprisoned for up to two years. Second violations may subject persons to fines of up to $50,000 or five years imprisonment.

Pollution Prevention Act of 1990

On October 27, 1990, Congress passed the Pollution Prevention Act (PPA), which established pollution prevention as the nation’s primary pollution management strategy. Pollution prevention is defined as “any practice which: 1) reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment prior to recycling, treatment, and disposal: and 2) reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.” Thus, pollution prevention not only encourages reductions in waste generation and release from production facilities but also promotes reductions in waste component toxicity or other hazardous characteristics. This strategy is fundamentally different from that of prior environmental statutes, in that pollution prevention encourages steps to reduce pollution generation and toxicity at the source rather than relying on end-of-pipe pollution controls.

The PPA provides for a hierarchy of pollution management approaches. It states that (1) pollution should be prevented or reduced at the source whenever feasible, (2) pollution that cannot be prevented or reduced should be recycled, (3) pollution that cannot be prevented or reduced or recycled should be treated, and (4) disposal or other releases into the environment should be employed only as a last resort. The act is not an action-forcing statute but rather encourages voluntary compliance by industry of the suggested approaches and strategies through education and training. To this end, the EPA is required to establish a Pollution Prevention Office independent of the other media-specific pollution control programs. It is also required to set up a Pollution Prevention Information Clearinghouse whose goal is to compile source reduction information and make it available to the public. The only mandatory provisions of the PPA require owners and operators of facilities that are required to file a form R under SARA Title III (the TRI) to report to the EPA information regarding the source reduction and recycling efforts that the facility has undertaken during the previous year.

References

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