For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30798
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Order Code RL30798
Environmental Laws:
Summaries of Major Statutes Administered
by the Environmental Protection Agency (EPA)
Updated January 7, 2008
Susan R. Fletcher, Coordinator
Specialist in Environmental Policy
Resources, Science, and Industry Division
Claudia Copeland, Linda Luther, James E. McCarthy,
Mark Reisch, Linda-Jo Schierow, and Mary Tiemann
Specialists and Analysts in Environmental Policy
Resources, Science, and Industry Division
Environmental Laws: Summaries of Major Statutes
Administered by the Environmental Protection Agency
(EPA)
Summary
Several major statutes form the legal basis for the programs of the
Environmental Protection Agency (EPA). Many of these have been amended several
times. The current provisions of each are briefly summarized in this report.
The Pollution Prevention Act (PPA) seeks to prevent pollution through
reduced generation of pollutants at their point of origin.
The Clean Air Act (CAA) requires EPA to set mobile source limits, ambient
air quality standards, hazardous air pollutant emission standards, standards for new
pollution sources, and significant deterioration requirements; and to focus on areas
that do not attain standards.
The Clean Water Act (CWA) establishes a sewage treatment construction
grants program, and a regulatory and enforcement program for discharges of wastes
into U.S. waters. Focusing on the regulation of the intentional disposal of materials
into ocean waters and authorizing related research is the Ocean Dumping Act. The
Safe Drinking Water Act (SDWA) establishes primary drinking water standards,
regulates underground injection disposal practices, and establishes a groundwater
control program.
The Solid Waste Disposal Act and Resource Conservation and Recovery Act
(RCRA) provide regulation of solid and hazardous waste, while the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), or
Superfund, provides authority for the federal government to respond to releases of
hazardous substances, and established a fee-maintained fund to clean up abandoned
hazardous waste sites. The authority to collect fees has expired, and funding is now
provided from general revenues.
The Emergency Planning and Community Right-to-Know Act requires
industrial reporting of toxic releases and encourages planning to respond to chemical
emergencies.
The Toxic Substances Control Act (TSCA) regulates the testing of chemicals
and their use, and the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) governs pesticide products and their use.
Parts of some statutes pre-existed the EPA's formation in 1970, but most of
contemporary environmental law was established by Congress during the 1970s, and
has been expanded by major amendments; Congress has assigned EPA the
administration of a considerable body of law and associated programs. This report
is not comprehensive in terms of all laws administered by EPA; it covers the major,
basic authorities underlying EPA programs.
Contributors
Coordination
Susan R. Fletcher
Specialist in Environmental Policy
Contributing Authors
Claudia Copeland
Specialist in Resources and Environmental Policy
Linda Luther
Analyst in Environmental and Natural Resources Policy
James E. McCarthy
Specialist in Environmental Policy
Mark Reisch
Analyst in Environmental Policy
Linda-Jo Schierow
Specialist in Environmental Policy
Mary Tiemann
Specialist in Environmental Policy
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Pollution Prevention Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
National Ambient Air Quality Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State Implementation Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nonattainment Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Requirements for Ozone Nonattainment Areas . . . . . . . . . . . . . . . . . . 10
Requirements for Carbon Monoxide Nonattainment Areas . . . . . . . . 12
Requirements for Particulate Nonattainment Areas . . . . . . . . . . . . . . . 12
Emission Standards for Mobile Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hazardous Air Pollutants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
New Source Performance Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Solid Waste Incinerators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Prevention of Significant Deterioration/Regional Haze . . . . . . . . . . . . . . . 17
Acid Deposition Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Stratospheric Ozone Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Federal and State Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Titles II and VI -- Municipal Wastewater Treatment Construction . . . . . . 31
Permits, Regulations, and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Ocean Dumping Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Regulating Ocean Dumping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Research and Coastal Water Quality Monitoring . . . . . . . . . . . . . . . . . . . . 41
Safe Drinking Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
National Drinking Water Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Contaminant Selection and Regulatory Schedules . . . . . . . . . . . . . . . 45
Standard Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Risk Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Variances and Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
State Primacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Enforcement, Consumer Information, and Citizen Suits . . . . . . . . . . . . . . . 47
Consumer Information and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Citizen Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Compliance Improvement Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Ground Water Protection Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Source Water Assessment and Protection Programs . . . . . . . . . . . . . . . . . . 49
State Revolving Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Drinking Water Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Vulnerability Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Emergency Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Tampering with Public Water Systems . . . . . . . . . . . . . . . . . . . . . . . . 51
Emergency Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Other Selected Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Solid Waste Disposal Act/Resource Conservation and Recovery Act . . . . . . . . 55
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Regulation of Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Solid Waste Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Underground Storage Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Amendments to RCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
1980 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Hazardous and Solid Waste Amendments of 1984 . . . . . . . . . . . . . . . 60
Federal Facility Compliance Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
1996 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Other Recent Laws Affecting Solid Waste Management . . . . . . . . . . . . . . 61
Sanitary Food Transportation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Pollution Prevention Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Indian Lands Open Dump Cleanup Act . . . . . . . . . . . . . . . . . . . . . . . . 62
Mercury-Containing and Rechargeable Battery Management Act . . . 62
Superfund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
The Fund and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Responding to Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Liability and Financial Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Health-Related Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Cleanup Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Cleanup Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Federal Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Natural Resource Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Brownfields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Emergency Planning and Community Right-to-Know Act . . . . . . . . . . . . . . . . . 81
Subtitle A -- Emergency Planning and Notification . . . . . . . . . . . . . . . . . . 81
Subtitle B -- Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Subtitle C -- General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Information for Health Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Right to Know . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Chemical Transport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Toxic Substances Control Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Testing of Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Pre-manufacture Notification for New Chemicals or Uses . . . . . . . . . 89
Regulatory Controls for Hazardous Chemicals . . . . . . . . . . . . . . . . . . 89
Information Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Imminent Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Relation to Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Enforcement and Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Confidential Business Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Chemical Categories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
State Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Title II (Asbestos in Buildings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Title III (Radon Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Title IV (Lead Exposure Reduction) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Title V (Reducing Risks in Schools) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Pesticide Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
History of Federal Pesticide Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
FIFRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
FFDCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Registration of Pesticide Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
FIFRA-FFDCA Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Tolerance Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Public Disclosure, Exclusive Use, and Trade Secrets . . . . . . . . . . . . . . . . 107
Reregistration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Special Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Canceling or Suspending a Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Use of Unregistered Pesticides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Export of Unregistered Pesticides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
National Environmental Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
The NEPA Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Environmental Protection Agency Functions Under NEPA . . . . . . . . . . . 116
List of Tables
Table 1. Schedule of Expiration of Appropriation Authority for
Major Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table 2. Major U.S. Code Sections of the Pollution Prevention Act . . . . . . . . . . . 5
Table 3. Clean Air Act and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Table 4. Ozone Nonattainment Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Table 5. Major U.S. Code Sections of the Clean Air Act . . . . . . . . . . . . . . . . . . 22
Table 6. Clean Water Act and Major Amendments . . . . . . . . . . . . . . . . . . . . . . . 28
Table 7. Major U.S. Code Sections of the Clean Water Act . . . . . . . . . . . . . . . . 34
Table 8. Ocean Dumping Act and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 38
Table 9. Major U.S. Code Sections of the
Marine Protection, Research, and Sanctuaries Act . . . . . . . . . . . . . . . . . . . 42
Table 10. Safe Drinking Water Act and Amendments . . . . . . . . . . . . . . . . . . . . 44
Table 11. Major U.S. Code Sections of the Safe Drinking Water Act
(Title XIV of the Public Health Service Act) . . . . . . . . . . . . . . . . . . . . . . . . 53
Table 12. Solid Waste Disposal/Resource Conservation
and Recovery Act and Major Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 55
Table 13. Major U.S. Code Sections of the Solid Waste Disposal/Resource
Conservation and Recovery Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Table 14. Superfund and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Table 15. Superfund Revenue, FY1991 to FY1995 . . . . . . . . . . . . . . . . . . . . . . . 69
Table 16. Major U.S. Code Sections of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Table 17. Major U.S. Code Sections of the Emergency Planning and
Community Right-to-Know Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Table 18. Toxic Substances Control Act and Major Amendments . . . . . . . . . . . 87
Table 19. Major U.S. Code Sections of the Toxic Substances Control Act . . . . 98
Table 20. Federal Insecticide, Fungicide, and Rodenticide Act and
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Table 21. Federal Food, Drug, and Cosmetic Act, Section 408, and
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Table 22. Major U.S. Code Sections of the Federal Insecticide, Fungicide,
and Rodenticide Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Table 23. Major U.S. Code Sections of the Federal Food, Drug, and
Cosmetic Act Related to Pesticides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Table 24. National Environmental Policy Act and Amendments . . . . . . . . . . . 114
Table 25. Major U.S. Code Sections of the National Environmental
Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Environmental Laws: Summaries of Major
Statutes Administered by the Environmental
Protection Agency (EPA)
Introduction
The authorities and responsibilities of the Environmental Protection Agency
(EPA) derive primarily from a dozen major environmental statutes. This report,
updated at the beginning of each Congress, provides a brief summary of EPA's
present major authorities and responsibilities. It abstracts EPA-administered statutes,
with each chapter providing a discrete analysis. It also explains how each act is
structured, defines key terms, and reports the current authorization status of each act.
The overall strategy of pollution control and the major programs authorized by each
act are discussed. At the beginning of each chapter is a list of all major amendments
to the parent statute, while the final table in each chapter cites the major U.S. Code
sections of the codified statute, offering ready reference to the codified sections.
Table 1 shows the current status of statutory authorizations for appropriations.
While these summaries outline the major provisions of each statute, they
necessarily omit many details and secondary provisions, and even some major
components are only briefly mentioned. Moreover, this report describes the statutes
without discussing their implementation. For example, statutory deadlines to control
pollutant discharges and achieve particular mandates have often been missed as a
result of delayed standard setting by EPA. Other CRS reports discuss current
developments and analyze implementation and associated regulations for many of the
individual laws covered in this report.
CRS-2
Table 1. Schedule of Expiration of Appropriation Authority
for Major Environmental Laws
Statute Expiration of Authorization
Pollution Prevention Act September 30, 1993
Clean Air Act September 30, 1998
Clean Water Act
(a) Wastewater Treatment Aid September 30, 1994
(b) Other Programs September 30, 1990
Ocean Dumping Act September 30, 1997
Safe Drinking Water Act September 30, 2003
Resource Conservation and Recovery Act September 30, 1988
Superfund (collection of taxes) December 30, 1995
Environmental Planning and
Community-Right-To-Know Act Permanent
Federal Insecticide, Fungicide, and Rodenticide Act September 30, 1991
Toxic Substances Control Act September 30, 1983
Environmental Research, Development,
and Demonstration Authorization September 30, 1982
National Environmental Policy Act Permanent
Note: House rules require enactment of an authorization before an appropriation bill can be
considered; but this requirement can be waived and frequently has been. Thus, while appropriation
authorizations in environmental statutes have expired from time to time, programs have continued and
have been funded through appropriations legislation. These dates do not indicate termination of
program authority.
Pollution Prevention Act of 19901
The Pollution Prevention Act of 1990 requires the Environmental Protection
Agency to establish an Office of Pollution Prevention, develop and coordinate a
pollution prevention strategy, and develop source reduction models. The act requires
owners and operators of manufacturing facilities to report annually on source
reduction and recycling activities, and authorizes EPA to collect data collection on
pollution prevention.
Background
Enactment of the Pollution Prevention Act of 1990 marked a turning point in
the direction of U.S. environmental protection policy. From an earlier focus on the
need to reduce or repair environmental damage by controlling pollutants at the point
where they are released to the environment (i.e., at the "end of the pipe" or
smokestack, at the boundary of a polluter's private property, in transit over public
highways and waterways, or after disposal), Congress enacted this law withe goal of
achieving pollution prevention through reduced generation of pollutants at their point
of origin. Broad support for this policy change was based on the notion that
1
Prepared by Linda-Jo Schierow, Specialist in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
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traditional approaches to pollution control had achieved progress, but may in the
future be supplemented with new approaches that might better address cross-media
pollution transfers, the need for cost-effective alternatives, and methods of
controlling pollution from dispersed or nonpoint sources of pollution.
Pollution prevention, also referred to as "source reduction," is viewed by its
advocates as the first in a hierarchy of options to reduce risks to human health and
the environment. Where prevention is not possible or may not be cost-effective,
other options would include recycling, followed next by waste treatment according
to environmental standards, and as a last resort, safe disposal of waste residues.
Source reduction is the preferred strategy for environmental protection because it
often is cost-effective; offers industry substantial savings in reduced consumption of
raw materials, pollution control costs, and liability costs; reduces risks to workers;
and reduces risk to the environment and public health.
In 1990, opportunities for source reduction appeared to be plentiful, but often
were unrealized or rejected by industries without adequate consideration. The act
was meant to increase interest in source reduction and encourage adoption of cost-
effective source reduction practices. The law was enacted as Title VI of the Omnibus
Budget Reconciliation Act of 1990, P.L. 101-508, and is codified as 42 U.S.C.
13101-13109.
Provisions
Section 6602(b) of the Pollution Prevention Act states that it is the 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."
Section 6603(5) defines source reduction as:
any practice which --
(i) reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling, treatment, or
disposal; and
(ii) reduces the hazards to public health and the environment associated
with the release of such substances, pollutants, or contaminants.
Section 6604 of the act required EPA to establish an Office of Pollution
Prevention. The office must be independent of the "single-medium program offices,"
but was given authority to review and advise those offices to promote an integrated,
multi-media (i.e., air, land, and water) approach to source reduction. EPA was
directed to develop and implement a detailed and coordinated strategy to promote
source reduction, to consider the effect on source reduction of all EPA programs and
regulations, and to identify and make recommendations to Congress to eliminate
barriers to source reduction. EPA also must conduct workshops and produce and
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disseminate guidance documents as part of a training program on source reduction
opportunities for state and federal enforcement officers of environmental regulations.
EPA's strategy, issued in 1991, identifies goals, tasks, target dates, resources
required, organizational responsibilities, and criteria to evaluate program progress.
In addition, the act requires EPA to promote source reduction practices in other
federal agencies and to identify opportunities to use federal procurement to encourage
source reduction.
To facilitate source reduction by industry, EPA is required under Section 6604
to develop, test, and disseminate model source reduction auditing procedures to
highlight opportunities; promote research and development of source reduction
techniques and processes with broad applicability; establish an annual award program
to recognize innovative programs; establish a program under Section 6605 of state
matching grants for programs to provide technical assistance to business; and
disseminate information about source reduction techniques through a clearinghouse
established in Section 6606.
The act also includes provisions to improve data collection and public access
to environmental data. Section 6604(b) directs EPA to develop improved methods
of coordinating, streamlining and assuring access to data collected under all federal
environmental statutes. An advisory panel of technical experts is established to
advise the Administrator on ways to improve collection and dissemination of data.
With respect to data collected under federal environmental statutes, Section 6608
directs EPA to evaluate data gaps and data duplication as well as methods of
coordinating, streamlining, and improving public access.
Section 6607 requires owners and operators of many industrial facilities to
report annually on their releases of toxic chemicals to the environment (under the
Emergency Planning and Community Right-to-Know Act of 1986, Section 313). The
Pollution Prevention Act requires these reports to include information about the
facility's efforts in source reduction and recycling. Specifically, reports must include
! the quantity of the toxic chemical entering any waste stream (or
released to the environment) prior to recycling, treatment, or
disposal;
! the quantity of toxic substance recycled (on- or off-site);
! the source reduction practices used;
! quantities of toxic chemical expected to enter waste streams and to
be recycled in the two years following the year for which the report
is prepared;
! ratio of production in the reporting year to production in the previous
year;
! techniques used to identify opportunities for source reduction;
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! amount of toxic chemical released in a catastrophic event, remedial
action, or other one-time event; and
! amount of toxic chemical treated on- or off-site.
All collected information is to be made available to the general public.
Section 6607(c) of the Pollution Prevention Act provides enforcement authority
under Title III of the Superfund Amendments and Reauthorization Act (also known
as the Emergency Planning and Community Right-to-Know Act). Civil,
administrative, and criminal penalties are authorized for non-compliance with
mandatory provisions. Citizens are given the authority to bring civil action for non-
compliance against a facility, EPA, a governor, or a State Emergency Response
Commission.
Section 6608(a) requires EPA to file a report on implementation of its Pollution
Prevention Strategy biennially. The required contents of the reports are specified in
the statute.
Authorization for appropriations under the Pollution Prevention Act expired
September 30, 1993, but appropriations have continued.
Table 2. Major U.S. Code Sections of the
Pollution Prevention Act
(42 U.S.C. 13101-13109)
Pollution Prevention Act
42 U.S.C. Section Title P.L. 101-508, Title VI
13101 Findings and Policy 13101
13102 Definitions 13102
13103 EPA Activities 13103
13104 Grants to States for Technical 13104
Assistance
13105 Source Reduction Clearinghouse 13105
13106 Source Reduction and Recycling Data 13106
Collection
13107 EPA Report 13107
13108 Savings Provisions 13108
13109 Authorization of Appropriations 13109
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The Clean Air Act2
The Clean Air Act, codified as 42 U.S.C. 7401 et seq., seeks to protect human
health and the environment from emissions that pollute ambient, or outdoor, air. It
requires the Environmental Protection Agency to establish minimum national
standards for air quality, and assigns primary responsibility to the states to assure
compliance with the standards. Areas not meeting the standards, referred to as
nonattainment areas, are required to implement specified air pollution control
measures. The act establishes federal standards for mobile sources of air pollution,
for sources of 188 hazardous air pollutants, and for the emissions that cause acid rain.
It establishes a comprehensive permit system for all major sources of air pollution.
It also addresses the prevention of pollution in areas with clean air and protection of
the stratospheric ozone layer.
Background
Like many other programs administered by the Environmental Protection
Agency, federal efforts to control air pollution have gone through several phases,
beginning with information collection, research, and technical assistance, before
being strengthened to establish federal standards and enforcement. Federal
legislation addressing air pollution was first passed in 1955, prior to which air
pollution was the exclusive responsibility of state and local levels of government.
Table 3. Clean Air Act and Amendments
(codified generally as 42 U.S.C. 7401-7671)
Year Act Public Law Number
1955 Air Pollution Control Act P.L. 84-159
1959 Reauthorization P.L. 86-353
1960 Motor vehicle exhaust study P.L. 86-493
1963 Clean Air Act Amendments P.L. 88-206
1965 Motor Vehicle Air Pollution Control Act P.L. 89-272, Title I
1966 Clean Air Act Amendments of 1966 P.L. 89-675
1967 Air Quality Act of 1967 P.L. 90-148
1970 Clean Air Act Amendments of 1970 P.L. 91-604
1973 Reauthorization P.L. 93-13
1974 Energy Supply and Environmental Coordination Act of
1974 P.L. 93-319
1977 Clean Air Act Amendments of 1977 P.L. 95-95
1980 Acid Precipitation Act of 1980 P.L. 96-294, Title VII
2
Prepared by James E. McCarthy, Larry B. Parker, Linda-Jo Schierow, and Claudia
Copeland, Specialists in the Resources, Science, and Industry Division.
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Year Act Public Law Number
1981 Steel Industry Compliance Extension Act of 1981 P.L. 97-23
1987 Clean Air Act 8-month Extension P.L. 100-202
1990 Clean Air Act Amendments of 1990 P.L. 101-549
1995- Relatively minor laws amending the act P.L. 104-6, 59, 70,
1996 260
1999 Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act P.L. 106-40
2004 Amendments to �209 re small engines P.L. 108-199,
Division G, Title IV,
Section 428
2005 Energy Policy Act of 2005 (amended �211 re fuels) P.L. 109-58
The federal role was strengthened in subsequent amendments, notably the Clean
Air Act amendments of 1970, 1977, and 1990. The 1970 amendments established
procedures under which EPA sets national standards for air quality, required a 90%
reduction in emissions from new automobiles by 1975, established a program to
require the best available control technology at major new sources of air pollution,
established a program to regulate air toxics, and greatly strengthened federal
enforcement authority. The 1977 amendments extended deadlines and added the
Prevention of Significant Deterioration program to protect air cleaner than national
standards.
Changes to the act in 1990 included provisions to (1) classify most non-
attainment areas according to the extent to which they exceed the standard, tailoring
deadlines, planning, and controls to each area's status; (2) tighten auto and other
mobile source emission standards; (3) require reformulated and alternative fuels in
the most polluted areas; (4) revise the air toxics section, establishing a new program
of technology-based standards and addressing the problem of sudden, catastrophic
releases of toxics; (5) establish an acid rain control program, with a marketable
allowance scheme to provide flexibility in implementation; (6) require a state-run
permit program for the operation of major sources of air pollutants; (7) implement
the Montreal Protocol to phase out most ozone-depleting chemicals; and (8) update
the enforcement provisions so that they parallel those in other pollution control acts,
including authority for EPA to assess administrative penalties.
The remainder of this section describes major programs required by the act, with
an emphasis on the changes established by the 1990 amendments.
National Ambient Air Quality Standards
In Section 109, the act requires EPA to establish National Ambient Air Quality
Standards (NAAQS) for air pollutants that endanger public health or welfare, in the
Administrator's judgment, and whose presence in ambient air results from numerous
or diverse sources. The NAAQS must be designed to protect public health and
welfare with an adequate margin of safety. Using this authority, EPA has
promulgated NAAQS for six air pollutants: sulfur dioxide (SO2), particulate matter
CRS-8
(PM2.5 and PM10), nitrogen dioxide (NO2), carbon monoxide (CO), ozone,3 and lead.
The act requires EPA to review the scientific data upon which the standards are
based, and revise the standards, if necessary, every five years. More often than not,
however, EPA has taken more than five years in reviewing and revising the
standards.
Originally, the act required that the NAAQS be attained by 1977 at the latest,
but the states experienced widespread difficulty in complying with these deadlines.
As a result, the deadlines have been extended several times. Under the 1990
amendments, most areas not in attainment with NAAQS must meet special
compliance schedules, staggered according to the severity of an area's air pollution
problem. The amendments also established specific requirements for each
nonattainment category, as described below.
State Implementation Plans
While the act authorizes the EPA to set NAAQS, the states are responsible for
establishing procedures to attain and maintain the standards. Under Section 110 of
the act, the states adopt plans, known as State Implementation Plans (SIPs), and
submit them to EPA to ensure that they are adequate to meet statutory requirements.
SIPs are based on emission inventories and computer models to determine
whether air quality violations will occur. If these data show that standards would be
exceeded, the state must impose additional controls on existing sources to ensure that
emissions do not cause "exceedances" of the standards. Proposed new and modified
sources must obtain state construction permits in which the applicant shows how the
anticipated emissions will not exceed allowable limits. In ozone nonattainment
areas, emissions from new or modified sources must also be offset by reductions in
emissions from existing sources.
The 1990 amendments require EPA to impose sanctions in areas which fail to
submit a SIP, fail to submit an adequate SIP, or fail to implement a SIP: unless the
state corrects such failures, a 2-to-1 emissions offset for the construction of new
polluting sources is imposed 18 months after notification to the state, and a ban on
most new federal highway grants is imposed six months later. An additional ban on
air quality grants is discretionary. Ultimately, a Federal Implementation Plan may
be imposed if the state fails to submit or implement an adequate SIP.
The amendments also require that, in nonattainment areas, no federal permits
or financial assistance may be granted for activities that do not "conform" to a State
Implementation Plan. This requirement can cause a temporary suspension in funding
for most new highway and transit projects, unless an area demonstrates that the
emissions caused by such projects are consistent with attainment and maintenance
3
Unlike the other NAAQS pollutants, ozone is not directly emitted, but rather is formed in
the atmosphere by the interaction of volatile organic compounds (VOCs) and nitrogen
oxides (NOx) in the presence of sunlight. The control of ozone is thus based on regulating
emissions of VOCs and NOx.
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of ambient air quality standards. Demonstrating conformity of transportation plans
and SIPs is required in nonattainment areas whenever new plans are submitted.
Nonattainment Requirements
In a major departure from the prior law, the 1990 Clean Air Act Amendments
grouped most nonattainment areas into classifications based on the extent to which
the NAAQS was exceeded, and established specific pollution controls and attainment
dates for each classification. These requirements are described here as spelled out
in Sections 181-193 of the act.4
Nonattainment areas are classified on the basis of a "design value," which is
derived from the pollutant concentration (in parts per million or micrograms per
cubic meter) recorded by air quality monitoring devices. The design value for the
one-hour ozone standard was the fourth highest hourly reading measured during the
most recent three-year period. Using these design values, the act created five classes
of ozone nonattainment, as shown in Table 4. Only Los Angeles fell into the
"extreme" class, but 97 other areas were classified in one of the other four ozone
categories. A simpler classification system established moderate and serious
nonattainment areas for carbon monoxide and particulate matter with
correspondingly more stringent control requirements for the more polluted class.
As shown in the table, the deadlines for attainment for ozone nonattainment
areas stretched from 1993 to 2010, depending on the severity of the problem. (Under
the 8-hour rule, these deadlines are changed to 2007 to 2021.) For carbon monoxide,
the attainment date for moderate areas was December 31, 1995, and for serious areas,
December 31, 2000. For particulate matter, the deadline for areas designated
moderate nonattainment as of 1990 was December 31, 1994; for those areas
subsequently designated as moderate, the deadline is six years after designation. For
serious areas, the respective deadlines are December 31, 2001, or 10 years after
designation.
4
EPA has modified the ozone standard, specified in the statute as 0.12 parts per million
averaged over a 1-hour period, to 0.08 parts per million averaged over an 8-hour period,
through regulations promulgated in July 1997. In April 2004, the agency promulgated an
implementation rule for this new 8-hour standard. Under this rule, the 1-hour standard was
revoked as of June 15, 2005, and areas that had not yet attained it were converted to new
classifications depending on their 8-hour concentration of ozone. As a result of court
challenges, the ramifications of this conversion to the 8-hour standard are still unfolding,
but in general the former 1-hour nonattainment areas remain subject to the controls specified
for their 1-hour category. New nonattainment areas that did not exceed the 1-hour standard,
but do violate the 8-hour standard, in general are subject to more flexible controls under
Subpart 1 (Sections 171-179B) of the act.
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Table 4. Ozone Nonattainment Classifications
Class Marginal Moderate Serious Severe Extreme
a
Deadline 3 years 6 years 9 years 15-17 years 20 years
Areasb 42 areas 32 areas 14 areas 9 areas 1 area
Design 0.121 ppm- 0.138 ppm- 0.160 ppm- 0.180 ppm-
> 0.280 ppm
Value 0.138 ppm 0.160 ppm 0.180 ppm 0.280 ppm
a. Areas with a 1988 design value between 0.190 and 0.280 ppm were given 17 years to attain; others
had 15 years.
b. Number of areas in each category as of the date of enactment.
Requirements for Ozone Nonattainment Areas. Although areas with
more severe air pollution problems have a longer time to meet the standards, more
stringent control requirements are imposed in areas with worse pollution. A
summary of the primary ozone control requirements for each nonattainment category
follows.
Marginal Areas
! Inventory emissions sources (to be updated every three years).
! Require 1.1 to 1 offsets (i.e., industries must reduce emissions from
existing facilities by 10% more than the emissions of any new
facility opened in the area).
! Impose reasonably available control technology (RACT) on all
major sources emitting more than 100 tons per year for the nine
industrial categories where EPA had already issued control
technique guidelines describing RACT prior to 1990.
Moderate Areas
! Meet all requirements for marginal areas.
! Impose a 15% reduction in volatile organic compounds (VOCs) in
six years.
! Adopt a basic vehicle inspection and maintenance program.
! Impose RACT on all major sources emitting more than 100 tons per
year for all additional industrial categories where EPA will issue
control technique guidelines describing RACT.
! Require vapor recovery at gas stations selling more than 10,000
gallons per month.
! Require 1.15 to 1 offsets.
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Serious Areas
! Meet all requirements for moderate areas.
! Reduce definition of a major source of VOCs from emissions of 100
tons per year to 50 tons per year for the purpose of imposing RACT.
! Reduce VOCs 3% annually for years 7 to 9 after the 15% reduction
already required by year 6.
! Improve monitoring.
! Adopt an enhanced vehicle inspection and maintenance program.
! Require fleet vehicles to use clean alternative fuels.
! Adopt transportation control measures if the number of vehicle miles
traveled in the area is greater than expected.
! Require 1.2 to 1 offsets.
! Adopt contingency measures if the area does not meet required VOC
reductions.
Severe Areas
! Meet all requirements for serious areas.
! Reduce definition of a major source of VOCs from emissions of 50
tons per year to 25 tons per year for the purpose of imposing RACT.
! Adopt specified transportation control measures.
! Implement a reformulated gasoline program.
! Require 1.3 to 1 offsets.
! Impose $5,000 per ton penalties on major sources if the area does
not meet required reductions.
Extreme Areas
! Meet all requirements for severe areas.
! Reduce definition of a major source of VOCs from emissions of 25
tons per year to 10 tons per year for the purpose of imposing RACT.
! Require clean fuels or advanced control technology for boilers
emitting more than 25 tons per year of NOx.
! Require 1.5 to 1 offsets.
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As noted, EPA promulgated a new, 8-hour ozone standard in July 1997.
Following extensive court challenges, the agency designated nonattainment areas for
the new standard on April 30, 2004. State Implementation Plans must be submitted
within three years of an area's designation.
Requirements for Carbon Monoxide Nonattainment Areas. As with
ozone nonattainment areas, carbon monoxide (CO) nonattainment areas are subjected
to specified control requirements, with more stringent requirements in serious
nonattainment areas. A summary of the primary CO control requirements for each
nonattainment category follows.
Moderate Areas
! Conduct an inventory of emissions sources.
! Forecast total vehicle miles traveled in the area.
! Adopt an enhanced vehicle inspection and maintenance program.
! Demonstrate annual improvements sufficient to attain the standard.
Serious Areas
! Adopt specified transportation control measures.
! Implement an oxygenated fuels program for all vehicles in the area.
! Reduce definition of a major source of CO from emissions of 100
tons per year to 50 tons per year if stationary sources contribute
significantly to the CO problem.
Serious areas failing to attain the standard by the deadline have to revise their
SIP and demonstrate reductions of 5% per year until the standard is attained.
Requirements for Particulate Nonattainment Areas. Particulate (PM10)
nonattainment areas are also subject to specified control requirements. These are:
Moderate Areas
! Require permits for new and modified major stationary sources of
PM10.
! Impose reasonably available control measures (RACM).
Serious Areas
! Impose best available control measures (BACM).
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! Reduce definition of a major source of PM10 from 100 tons per year
to 70 tons per year.
In July 1997, EPA promulgated new standards for fine particulates (PM2.5). The
PM2.5 standards were also subject to court challenges and the absence of a monitoring
network capable of measuring the pollutant also delayed implementation.
Nonattainment areas for PM2.5 were designated on April 14, 2005. States will have
three years subsequent to designation to submit State Implementation Plans.
Additional regulations promulgated in October 2006 will strengthen the PM2.5
standard.
Emission Standards for Mobile Sources
Title II of the Clean Air Act has required emission standards for automobiles
since 1968. The 1990 amendments significantly tightened these standards: for cars,
the hydrocarbon standard was reduced by 40% and the nitrogen oxides (NOx)
standard by 50%. The standards -- referred to as "Tier 1" standards -- were phased
in over the 1994-1996 model years.
The amendments envisioned a further set of reductions ("Tier 2" standards), but
not before model year 2004. For Tier 2 standards to be promulgated, the agency was
first required to report to Congress concerning the need for further emission
reductions, the availability of technology to achieve such reductions, and the cost-
effectiveness of such controls compared to other means of attaining air quality
standards. EPA submitted this report to Congress in August 1998, concluding that
further emission reductions were needed and that technology to achieve such
reductions was available and cost-effective. Tier 2 standards, requiring emission
reductions of 77% to 95% from cars and light trucks were promulgated in February
2000, and are being phased in over the 2004-2009 model years. To facilitate the use
of more effective emission controls, the standards also required a more than 90%
reduction in the sulfur content of gasoline, beginning in 2004.
The 1990 amendments also stipulated that oxygenated gasoline, designed to
reduce emissions of carbon monoxide, be sold in the worst CO nonattainment areas
and that "reformulated" gasoline (RFG), designed to reduce emissions of volatile
organic compounds and toxic air pollutants, be sold in the nine worst ozone
nonattainment areas (Los Angeles, San Diego, Houston, Baltimore, Philadelphia,
New York, Hartford, Chicago, and Milwaukee); metropolitan Washington, DC, and
four areas in California were added to the mandatory list later. Other ozone
nonattainment areas can opt in to the RFG program; as of 2006, additional areas in
11 states had done so. (The fuels provisions were modified by the Energy Policy Act
of 2005, removing the requirement that RFG contain oxygenates. Instead, the 2005
law required the use of increasing amounts of renewable fuel, most likely to be
ethanol, in motor fuels, beginning in 2006.)
Use of alternative fuels and development of cleaner engines was also to be
stimulated by the Clean-Fuel Fleet Program. In all of the most seriously polluted
ozone and CO nonattainment areas, centrally fueled fleets of 10 or more passenger
cars and light-duty trucks must purchase at least 30% clean-fuel vehicles when they
add new vehicles to existing fleets, starting in 1999. (The act originally required the
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program to begin in 1998, but the start was delayed by a year.) The percentage rose
to 50% in 2000 and 70% in 2001. Heavy-duty fleets are required to purchase at least
50% clean-fuel vehicles annually. A clean fuel vehicle is one which meets Low
Emission Vehicle (LEV) standards and operates on reformulated gasoline,
reformulated diesel, methanol, ethanol, natural gas, liquefied petroleum gas,
hydrogen, or electricity.
In addition to the above program, California's Zero Emission Vehicle (ZEV)
program also is intended to promote the development of alternative fuels and
vehicles. Section 209(b) of the Clean Air Act grants California the authority to
develop its own vehicle emissions standards if those standards are at least as stringent
as the federal standards. In addition to setting more stringent standards for all
vehicles, California used this authority to establish a program requiring auto
manufacturers to sell ZEVs (electric or hydrogen fuel cell vehicles) in the state
beginning in 2003. This program has been substantially modified since it was
enacted, and now allows credit for hybrid and partial ZEV vehicles in addition to true
ZEVs, but it has served as an incubator for lower emission technologies since its
adoption. Section 177 of the act allows other states to adopt California's stricter
standards: 10 states (Connecticut, Maine, Massachusetts, New Jersey, New York,
Oregon, Pennsylvania, Rhode Island, Vermont, and Washington) have already
adopted them or are in the process of doing so.
The 1990 amendments also imposed tighter requirements on certification (an
auto's useful life is defined as 100,000 miles instead of the earlier 50,000 miles), on
emissions allowed during refueling, on low temperature CO emissions, on in-use
performance over time, and on warranties for the most expensive emission control
components (8 years/80,000 miles for the catalytic converter, electronic emissions
control unit, and onboard emissions diagnostic unit). Regulations were also extended
to include nonroad fuels and engines.
Standards for trucks and buses using diesel engines were also strengthened. The
1990 amendments required new urban buses to reduce emissions of diesel
particulates 92% by 1996, and all other heavy-duty diesel engines to achieve an 83%
reduction by the same year. NOx emissions must also be reduced, 33% by 1998.
Authority to further strengthen these standards led to promulgation in January 2001
of new emission standards requiring a further 90%-95% reduction in emissions
phased in over the 2007-2010 model years, and a reduction of 97% in the allowable
amount of sulfur in highway diesel fuel. These regulations were followed in May
2004 by similar requirements for nonroad diesel equipment, which will be phased in
between 2007 and 2015.
Hazardous Air Pollutants
Completely rewritten by the Clean Air Act Amendments of 1990, Section 112
of the act establishes programs for protecting public health and the environment from
exposure to toxic air pollutants. As revised by the 1990 amendments, the section
contains four major provisions: Maximum Achievable Control Technology (MACT)
requirements; health-based standards; standards for stationary "area sources" (small,
but numerous sources, such as gas stations or dry cleaners, that collectively emit
CRS-15
significant quantities of hazardous pollutants); and requirements for the prevention
of catastrophic releases.
First, EPA is to establish technology-based emission standards, called MACT
standards, for sources of 188 pollutants listed in the legislation, and to specify
categories of sources subject to the emission standards.5 EPA is to revise the
standards periodically (at least every eight years). EPA can, on its initiative or in
response to a petition, add or delete substances or source categories from the lists.
Section 112 establishes a presumption in favor of regulation for the designated
pollutants; it requires regulation of the pollutants unless EPA or a petitioner is able
to show "that there is adequate data on the health and environmental effects of the
substance to determine that emissions, ambient concentrations, bioaccumulation or
deposition of the substance may not reasonably be anticipated to cause any adverse
effects to human health or adverse environmental effects."
EPA is required to set standards for sources of the listed pollutants that achieve
"the maximum degree of reduction in emissions" taking into account cost and other
non-air-quality factors. The standards for new sources "shall not be less stringent
than the most stringent emissions level that is achieved in practice by the best
controlled similar source." The standards for existing sources may be less stringent
than those for new sources, but must be no less stringent than the emission
limitations achieved by either the best performing 12% of existing sources (if there
are more than 30 such sources in the category or subcategory) or the best performing
five similar sources (if there are fewer than 30). Existing sources are given three
years following promulgation of standards to achieve compliance, with a possible
one-year extension; additional extensions may be available for special circumstances
or for certain categories of sources. Existing sources that achieve voluntary early
emissions reductions will receive a six-year extension for compliance with MACT.
The second major provision of Section 112 directs EPA to set health-based
standards to address situations in which a significant residual risk of adverse health
effects or a threat of adverse environmental effects remains after installation of
MACT. This provision requires that EPA, after consultation with the Surgeon
General of the United States, submit a report to Congress on the public health
significance of residual risks, and recommend legislation regarding such risks. If
Congress does not legislate in response to EPA's recommendations, then EPA is
required to issue standards for categories of sources of hazardous air pollutants as
necessary to protect the public health with an ample margin of safety or to prevent
an adverse environmental effect. A residual risk standard is required for any source
emitting a cancer-causing pollutant that poses an added risk to the most exposed
person of more than one in a million. Residual risk standards are due eight years
after promulgation of MACT for the affected source category. Existing sources have
90 days to comply with a residual risk standard, with a possible two-year extension.
In general, residual risk standards do not apply to area sources.
5
The 1990 amendments specified 189 pollutants, but P.L. 102-187, enacted on December
4, 1991, deleted hydrogen sulfide from the list of toxic pollutants, leaving 188.
CRS-16
The law directed EPA to contract with the National Academy of Sciences
(NAS) for a study of risk assessment methodology, and created a Risk Assessment
and Management Commission to investigate and report on policy implications and
appropriate uses of risk assessment and risk management. In 1994 NAS published
its report, Science and Judgment in Risk Assessment. The commission study,
Framework for Environmental Health Risk Management, was released in 1997.
Third, in addition to the technology-based and health-based programs for major
sources of hazardous air pollution, EPA is to establish standards for stationary "area
sources" determined to present a threat of adverse effects to human health or the
environment. The provision requires EPA to regulate the stationary area sources
responsible for 90% of the emissions of the 30 hazardous air pollutants that present
the greatest risk to public health in the largest number of urban areas. In setting the
standard, EPA can impose less stringent "generally available" control technologies,
rather than MACT.
Finally, Section 112 addresses prevention of sudden, catastrophic releases of air
toxics by establishing an independent Chemical Safety and Hazard Investigation
Board. The board is responsible for investigating accidents involving releases of
hazardous substances, conducting studies, and preparing reports on the handling of
toxic materials and measures to reduce the risk of accidents.
EPA is also directed to issue prevention, detection, and correction requirements
for catastrophic releases of air toxics by major sources. Section 112(r) requires
owners and operators to prepare risk management plans including hazard
assessments, measures to prevent releases, and a response program.
New Source Performance Standards
Section 111 of the act requires EPA to establish nationally uniform, technology-
based standards (called New Source Performance Standards, or NSPS) for categories
of new industrial facilities. These standards accomplish two goals: first, they
establish a consistent baseline for pollution control that competing firms must meet,
and thereby remove any incentive for states or communities to weaken air pollution
standards in order to attract polluting industry; and second, they preserve clean air to
accommodate future growth, as well as for its own benefits.
NSPS establish maximum emission levels for new major stationary sources --
powerplants, steel mills, and smelters, for example -- with the emission levels
determined by the best "adequately demonstrated" continuous control technology
available, taking costs into account. EPA must regularly revise and update NSPS
applicable to designated sources as new technology becomes available, since the goal
is to prevent new pollution problems from developing and to force the installation of
new control technology.
The standards also apply to modifications of existing facilities, through a
process called New Source Review (NSR). The law's ambiguity regarding what
constitutes a modification (subject to NSR) as opposed to routine maintenance of a
facility has led to litigation, with EPA proposing in recent years to modify its
interpretation of the requirements of this section.
CRS-17
Solid Waste Incinerators
Prior to 1990, solid waste incinerators, which emit a wide range of pollutants,
were subject to varying degrees of state and federal regulation depending on their
size, age, and the type of waste burned. In a new Section 129, the 1990 amendments
established more consistent federal requirements specifying that emissions of 10
categories of pollutants be regulated at new and existing incinerators burning
municipal solid waste, medical waste, and commercial and industrial waste. The
amendments also established emissions monitoring and operator training
requirements.
Prevention of Significant Deterioration/Regional Haze
Sections 160-169 of the act establish requirements for the prevention of
significant deterioration of air quality (PSD). The PSD program reflects the principle
that areas where air quality is better than that required by NAAQS should be
protected from significant new air pollution even if NAAQS would not be violated.
The act divides clean air areas into three classes, and specifies the increments
of SO2 and particulate pollution allowed in each. Class I areas include international
and national parks, wilderness and other pristine areas; allowable increments of new
pollution in these areas are very small. Class II areas include all attainment and not
classifiable areas, not designated as Class I; allowable increments of new pollution
in these areas are modest. Class III represents selected areas that states may designate
for development; allowable increments of new pollution are large (but not exceeding
NAAQS). Through an elaborate hearing and review process, a state can have regions
redesignated from Class II to Class III (although none have yet been so redesignated).
While the 1977 amendments only stipulated PSD standards for two pollutants,
SO2 and particulates, EPA is supposed to establish standards for other criteria
pollutants. Thus far, only one of the other four has been addressed: the agency
promulgated standards for NO2 in 1988.
Newly constructed polluting sources in PSD areas must install best available
control technology (BACT) that may be more strict than that required by NSPS. The
justifications of the policy are that it protects air quality, provides an added margin
of health protection, preserves clean air for future development, and prevents firms
from gaining a competitive edge by "shopping" for clean air to pollute.
In Sections 169A and B, the act also sets a national goal of preventing and
remedying impairment of visibility in national parks and wilderness areas, and
requires EPA to promulgate regulations to assure reasonable progress toward that
goal. In the 1990 amendments, Congress strengthened these provisions, which had
not been implemented.
The amendments required EPA to establish a Grand Canyon Visibility Transport
Commission, composed of Governors from each state in the affected region, an EPA
designee, and a representative of each of the national parks or wilderness areas in the
region. Other visibility transport commissions can be established upon EPA's
CRS-18
discretion or upon petition from at least two states. Within 18 months of receiving
a report from one of these commissions, EPA is required to promulgate regulations
to assure reasonable progress toward the visibility goal, including requirements that
states update their State Implementation Plans to contain emission limits, schedules
of compliance, and other measures necessary to make reasonable progress.
Specifically mentioned is a requirement that states impose Best Available Retrofit
Technology on existing sources of emissions impairing visibility.
The Grand Canyon Commission delivered a set of recommendations to EPA in
June 1996, and the agency subsequently promulgated a "regional haze" program
applicable to all 50 states under this authority.
Acid Deposition Control
The Clean Air Act Amendments of 1990 added an acid deposition control
program (Title IV) to the act. It set goals for the year 2000 of reducing annual SO2
emissions by 10 million tons from 1980 levels and reducing annual NOx emissions
by 2 million tons, also from 1980 levels.
The SO2 reductions were imposed in two steps. Under Phase 1,
owners/operators of 111 electric generating facilities listed in the law that are larger
than 100 megawatts had to meet tonnage emission limitations by January 1, 1995.
This would reduce SO2 emission by about 3.5 million tons. Phase 2 included
facilities larger than 75 megawatts, with a deadline of January 1, 2000. Compliance
has been 100%.
To introduce some flexibility in the distribution and timing of reductions, the
act creates a comprehensive permit and emissions allowance/trading system. An
allowance is a limited authorization to emit a ton of SO2. Issued by EPA, the
allowances would be allocated to Phase 1 and Phase 2 units in accordance with
baseline emissions estimates. Powerplants which commence operation after
November 15, 1990, would not receive any allowances. These new units would have
to obtain allowances (offsets) from holders of existing allowances. Allowances may
be traded nationally during either phase. The law also permits industrial sources and
powerplants to sell allowances to utility systems under regulations to be developed
by EPA. Allowances may be banked by a utility for future use or sale.
The act provided for two types of sales to improve the liquidity of the allowance
system and to ensure the availability of allowances for utilities and independent
power producers who need them. First, a special reserve fund consisting of 2.8% of
Phase 1 and Phase 2 allowance allocations has been set aside for sale. Allowances
from this fund (25,000 annually from 1993 to 1999 and 50,000 thereafter) are sold
at a fixed price of $1,500 an allowance. Independent power producers have
guaranteed rights to these allowances under certain conditions. Second, an annual,
open auction sells allowances (150,000 from 1993 to 1995, and 250,000 from 1996
to 1999) with no minimum price. Utilities with excess allowances may have them
auctioned off at this auction, and any person may buy allowances.
The act essentially caps SO2 emissions at individual existing sources through a
tonnage limitation, and at future plants through the allowance system. First,
CRS-19
emissions from most existing sources are capped at a specified emission rate
multiplied by an historic baseline level. Second, for plants commencing operation
after November 15, 1990, emissions must be completely offset with additional
reductions at existing facilities beginning after Phase 2 compliance. However, as
noted above, the law provides some allowances to future powerplants which meet
certain criteria. The utility SO2 emission cap is set at 8.9 million tons, with some
exceptions.
The act provides that if an affected unit does not have sufficient allowances to
cover its emissions, it is subject to an excess emission penalty of $2,000 per ton of
SO2 and required to reduce an additional ton of SO2 the next year for each ton of
excess pollutant emitted.
The act also requires EPA to inventory industrial emissions of SO2 and to report
every five years, beginning in 1995. If the inventory shows that industrial emissions
may reach levels above 5.60 million tons per year, then EPA is to take action under
the act to ensure that the 5.60 million ton cap is not exceeded.
The act requires EPA to set specific NOx emission rate limitations -- 0.45 lb.
per million Btu for tangentially-fired boilers and 0.50 lb. per million Btu for wall-
fired boilers -- unless those rates can not be achieved by low-NOx burner technology.
Tangentially and wall-fired boilers affected by Phase 1 SO2 controls must also meet
NOx requirements. EPA was to set emission limitations for other types of boilers by
1997 based on low-NOx burner costs, which EPA did. In addition, EPA was to
propose and promulgate a revised new source performance standard for NOx from
fossil fuel steam generating units, which EPA also did, in 1998.
Permits
The Clean Air Act Amendments of 1990 added a Title V to the act which
requires states to administer a comprehensive permit program for the operation of
sources emitting air pollutants. These requirements are modeled after similar
provisions in the Clean Water Act. Previously, the Clean Air Act contained limited
provision for permits, requiring only new or modified major stationary sources to
obtain construction permits (under Section 165 of the act).
Sources subject to the permit requirements generally include major sources that
emit or have the potential to emit 100 tons per year of any regulated pollutant, plus
stationary and area sources that emit or have potential to emit lesser specified
amounts of hazardous air pollutants. However, in nonattainment areas, the permit
requirements also include sources which emit as little as 50, 25, or 10 tons per year
of VOCs, depending on the severity of the region's nonattainment status (serious,
severe, or extreme).
States were required to develop permit programs and to submit those programs
for EPA approval by November 15, 1993. EPA had one year to approve or
disapprove a state's submission in whole or in part. After the effective date of a state
plan, sources had 12 months to submit an actual permit application.
CRS-20
States are to collect annual fees from sources sufficient to cover the "reasonable
costs" of administering the permit program, with revenues to be used to support the
agency's air pollution control program. The fee must be at least $25 per ton of
regulated pollutants (excluding carbon monoxide). Permitting authorities have
discretion not to collect fees on emissions in excess of 4,000 tons per year and may
collect other fee amounts, if appropriate.
The permit states how much of which air pollutants a source is allowed to emit.
As a part of the permit process, a source must prepare a compliance plan and certify
compliance. The term of permits is limited to no more than five years; sources are
required to renew permits at that time. State permit authorities must notify
contiguous states of permit applications that may affect them; the application and any
comments of contiguous states must be forwarded to EPA for review. EPA can veto
a permit; however, this authority is essentially limited to major permit changes. EPA
review need not include permits which simply codify elements of a state's overall
clean air plan, and EPA has discretion to not review permits for small sources.
Holding a permit to some extent shields a source from enforcement actions: the act
provides that a source cannot be held in violation if it is complying with explicit
requirements addressed in a permit, or if the state finds that certain provisions do not
apply to that source.
Enforcement
Section 113 of the act, which was also strengthened by the 1990 amendments,
covers enforcement. The section establishes federal authority to issue agency and
court orders requiring compliance and to impose penalties for violations of Act
requirements. Section 114 authorizes EPA to require sources to submit reports; to
monitor emissions; and to certify compliance with the act's requirements, and
authorizes EPA personnel to conduct inspections.
Like most federal environmental statutes, the Clean Air Act is enforced
primarily by states or local governments; they issue most permits, monitor
compliance, and conduct the majority of inspections. The federal government
functions as a backstop, with authority to review state actions. The agency may act
independently or may file its own enforcement action in cases where it concludes
that a state's response was inadequate.
The act also provides for citizen suits both against persons (including
corporations or government agencies) alleged to have violated emissions standards
or permit requirements, and against EPA in cases where the Administrator has failed
to perform an action that is not discretionary under the act. Citizen groups have often
used the latter provision to compel the Administrator to promulgate regulations
required by the statute.
The 1990 amendments elevated penalties for some knowing violations from
misdemeanors to felonies; removed the ability of a source to avoid an enforcement
order or civil penalty by ceasing a violation within 60 days of notice; gave authority
to EPA to assess administrative penalties; and authorized $10,000 awards to persons
supplying information leading to convictions under the act.
CRS-21
Stratospheric Ozone Protection
Title VI of the 1990 Clean Air Act Amendments represents the United States'
primary response on the domestic front to the ozone depletion issue. It also
implements the U.S. international responsibilities under the Montreal Protocol on
Substances that Deplete the Ozone Layer (and its amendments). Indeed, Section
606(a)(3) provides that the Environmental Protection Agency shall adjust phase-out
schedules for ozone-depleting substances in accordance with any future changes in
Montreal Protocol schedules. As a result, the phase-out schedules contained in Title
VI for various ozone-depleting compounds have now been superseded by subsequent
amendments to the Montreal Protocol.
Since passage of Title VI, ozone-depleting substances such as CFCs, methyl
chloroform, carbon tetrachloride, and halons (referred to as Class 1 substances) have
been phased out by industrial countries, including the United States. New uses of
hydrochlorofluorocarbons (HCFCs) (called Class 2 substances under Title VI) are
banned beginning January 1, 2015, unless the HCFCs are recycled, used as a
feedstock, or used as a refrigerant for appliances manufactured prior to January 1,
2020. Production of HCFCs is to be frozen January 1, 2015, and phased out by
January 1, 2030. Exemptions consistent with the Montreal Protocol are allowed.
The EPA is required to add any substance with an ozone depletion potential
(ODP) of 0.2 or greater to the list of Class 1 substances and set a phase-out schedule
of no more than seven years. For example, methyl bromide (ODP estimated by EPA
at 0.7) was added to the list in December 1993, requiring its phaseout by January 1,
2001; this decision was altered by Congress in 1998 to harmonize the U.S. methyl
bromide phase-out schedule with the 2005 deadline set by the parties to the Montreal
Protocol in 1997. Also, EPA is required to add any substance that is known or may
be reasonably anticipated to harm the stratosphere to the list of Class 2 substances
and set a phase-out schedule of no more than ten years.
Title VI contains several implementing strategies to avoid releases of ozone-
chemicals to the atmosphere, including (1) for Class 1 substances used as refrigerants
-- lowest achievable level of use and emissions, maximum recycling, and safe
disposal required by July 1, 1992; (2) for servicing or disposing refrigeration
equipment containing Class 1 and 2 substances -- venting banned as of July 1, 1992;
(3) for motor vehicle air conditioners containing Class 1 or 2 substances -- recycling
required by January 1, 1992 (smaller shops by January 1, 1993); (4) sale of small
containers of class 1 and 2 substances -- banned within two years of enactment; and
(5) nonessential products -- banned within two years of enactment.
(For current issues, see CRS Report RL33776, Clean Air Issues in the 110th
Congress: Climate Change, Air Quality Standards, and Oversight, by James E.
McCarthy.)
CRS-22
Table 5. Major U.S. Code Sections of the Clean Air Act
(codified generally as 42 U.S.C. 7401-7671)
Clean Air
Act, as
42 U.S.C. Section Title Amended
Subchapter I -- Programs and Activities
Part A -- Air Quality Emissions and Limitations
7401 Findings, purpose Sec. 101
7402 Cooperative activities Sec. 102
7403 Research, investigation, training Sec. 103
7404 Research relating to fuels and vehicles Sec. 104
7405 Grants for air pollution planning and control Sec. 105
programs
7406 Interstate air quality agencies; program cost Sec. 106
limitations
7407 Air quality control regions Sec. 107
7408 Air quality criteria and control techniques Sec. 108
7409 National primary and secondary air quality Sec. 109
standards
7410 SIPs for national primary and secondary air quality Sec. 110
standards
7411 Standards of performance for new stationary Sec. 111
sources
7412 Hazardous air pollutants Sec. 112
7413 Federal enforcement Sec. 113
7414 Recordkeeping, inspections, monitoring, and entry Sec. 114
7415 International air pollution Sec. 115
7416 Retention of state authority Sec. 116
7417 Advisory committees Sec. 117
7418 Control of pollution from federal facilities Sec. 118
7419 Primary nonferrous smelter orders Sec. 119
7420 Noncompliance penalty Sec. 120
7421 Consultation Sec. 121
7422 Listing of certain unregulated pollutants Sec. 122
7423 Stack heights Sec. 123
7424 Assurance of adequacy of state plans Sec. 124
7425 Measures to prevent economic Sec. 125
disruption/unemployment
7426 Interstate pollution abatement Sec. 126
7427 Public notification Sec. 127
7428 State boards Sec. 128
7429 Solid waste combustion Sec. 129
CRS-23
Clean Air
Act, as
42 U.S.C. Section Title Amended
7430 Emission factors Sec. 130
7431 Land use authority Sec. 131
Part B -- Ozone Protection (repealed -- new provisions related to stratospheric ozone
protection are found at 42 U.S.C. 7671 et seq., below)
Part C -- Prevention of Significant Deterioration of Air Quality
Subpart I -- Clean Air
7470 Congressional declaration of purpose Sec. 160
7471 Plan requirements Sec. 161
7472 Initial classifications Sec. 162
7473 Increments and ceilings Sec. 163
7474 Area redesignation Sec. 164
7475 Preconstruction requirements Sec. 165
7476 Other pollutants Sec. 166
7477 Enforcement Sec. 167
7478 Period before plan approval Sec. 168
7479 Definitions Sec. 169
Subpart II -- Visibility Protection
7491 Visibility protection for federal class I areas Sec. 169A
7492 Visibility Sec. 169B
Part D -- Plan Requirements for Nonattainment Areas
Subpart 1 -- Nonattainment Areas in General
7501 Definitions Sec. 171
7502 Nonattainment plan provisions in general Sec. 172
7503 Permit requirements Sec. 173
7504 Planning procedures Sec. 174
7505 Environmental Protection Agency grants Sec. 175
7505a Maintenance plans Sec. 175A
7506 Limitations on certain federal assistance Sec. 176
7506a Interstate transport commissions Sec. 176A
7507 New motor vehicle emission standards in Sec. 177
nonattainment areas
7508 Guidance documents Sec. 178
7509 Sanctions and consequences of failure to attain Sec. 179
7509a International border areas Sec. 179B
Subpart 2 -- Additional Provisions for Ozone Nonattainment Areas
CRS-24
Clean Air
Act, as
42 U.S.C. Section Title Amended
7511 Classifications and attainment dates Sec. 181
7511a Plan submissions and requirements Sec. 182
7511b Federal ozone measures Sec. 183
7511c Control of interstate ozone air pollution Sec. 184
7511d Enforcement for Severe and Extreme ozone Sec. 185
nonattainment areas for failure to attain
7511e Transitional areas Sec. 185A
7511f NOx and VOC study Sec. 185B
Subpart 3 -- Additional Provisions for Carbon Monoxide Nonattainment Areas
7512 Classification and attainment dates Sec. 186
7512a Plan submissions and requirements Sec. 187
Subpart 4 -- Additional Provisions for Particulate Matter Nonattainment Areas
7513 Classifications and attainment dates Sec. 188
7513a Plan provisions and schedules for plan submissions Sec. 189
7513b Issuance of RACM and BACM guidance Sec. 190
Subpart 5 -- Additional Provisions for Areas Designated Nonattainment for
Sulfur Oxides, Nitrogen Dioxide, or Lead
7514 Plan submission deadlines Sec. 191
7514a Attainment dates Sec. 192
Subpart 6 -- Savings Provisions
7515 General savings clause Sec. 193
Subchapter II -- Emission Standards for Moving Sources
Part A -- Motor Vehicle Emission and Fuel Standards
7521 Emission standards for new motor vehicles or Sec. 202
engines
7522 Prohibited acts Sec. 203
7523 Actions to restrain violations Sec. 204
7524 Civil penalties Sec. 205
7525 Motor vehicle and engines testing and certification Sec. 206
7541 Compliance by vehicles and engines in actual use Sec. 207
7542 Information collection Sec. 208
7543 State standards Sec. 209
7544 State grants Sec. 210
7545 Regulation of fuels Sec. 211
7547 Nonroad engines and vehicles Sec. 213
7548 Study of particulate emissions from motor vehicles Sec. 214
7549 High altitude performance adjustments Sec. 215
CRS-25
Clean Air
Act, as
42 U.S.C. Section Title Amended
7550 Definitions Sec. 216
7551 Study and report on fuel consumption of CAAA of Sec. 203
1977
7552 Motor vehicle compliance program fees Sec. 217
7553 Prohibition on production of engines requiring Sec. 218
leaded gasoline
7554 Urban bus standards Sec. 219
Part B -- Aircraft Emissions Standards
7571 Establishment of standards Sec. 231
7572 Enforcement of standards Sec. 232
7573 State standards and controls Sec. 233
7574 Definitions Sec. 234
Part C -- Clean Fuel Vehicles
7581 Definitions Sec. 241
7582 Requirements applicable to clean-fuel vehicles Sec. 242
7583 Standards for light-duty clean-fuel vehicles Sec. 243
7584 Administration and enforcement as per California Sec. 244
standards
7585 Standards for heavy-duty clean-fuel vehicles Sec. 245
7586 Centrally fueled fleets Sec. 246
7587 Vehicle conversions Sec. 247
7588 Federal agency fleets Sec. 248
7589 California pilot test program Sec. 249
7590 General provisions Sec. 250
Subchapter III -- General Provisions
7601 Administration Sec. 301
7602 Definitions Sec. 302
7603 Emergency powers Sec. 303
7604 Citizen suits Sec. 304
7605 Representation in litigation Sec. 305
7606 Federal procurement Sec. 306
7607 Administrative proceedings and judicial review Sec. 307
7608 Mandatory licensing Sec. 308
7609 Policy review Sec. 309
7610 Other authority Sec. 310
7611 Records and audits Sec. 311
7612 Economic impact analyses Sec. 312
7614 Labor standards Sec. 314
CRS-26
Clean Air
Act, as
42 U.S.C. Section Title Amended
7615 Separability Sec. 315
7616 Sewage treatment plants Sec. 316
7617 Economic impact assessment Sec. 317
7619 Air quality monitoring Sec. 319
7620 Standardized air quality modeling Sec. 320
7621 Employment effects Sec. 321
7622 Employee protection Sec. 322
7624 Cost of vapor recovery equipment Sec. 323
7625 Vapor recovery for small business marketers of Sec. 324
petroleum products
7625-1 Exemptions for certain territories Sec. 325
7625a Statutory construction Sec. 326
7626 Authorization of appropriations Sec. 327
7627 Air pollution from Outer Continental Shelf Sec. 328
activities
Subchapter IV-A Acid Deposition Control
7651 Findings and purposes Sec. 401
7651a Definitions Sec. 402
7651b Sulfur dioxide allowance program for existing and Sec. 403
new units
7651c Phase I sulfur dioxide requirements Sec. 404
7651d Phase II sulfur dioxide requirements Sec. 405
7651f Nitrogen oxides emission reduction program Sec. 407
7651g Permits and compliance plans Sec. 408
7651h Repowered sources Sec. 409
7651i Election for additional sources Sec. 410
7651j Excess emissions penalty Sec. 411
7651k Monitoring, reporting, and record keeping Sec. 412
requirements
7651l General compliance with other provisions Sec. 413
7651m Enforcement Sec. 414
7651n Clean coal technology regulatory incentives Sec. 415
7651o Contingency guarantee, auctions, reserve Sec. 416
Subchapter V -- Permits
7661 Definitions Sec. 501
7661a Permit programs Sec. 502
7661b Permit applications Sec. 503
7661c Permit requirements and conditions Sec. 504
7661d Notification to administrator and contiguous states Sec. 505
7661e Other authorities Sec. 506
CRS-27
Clean Air
Act, as
42 U.S.C. Section Title Amended
7661f Small business stationary source technical and Sec. 507
environmental compliance assistance program
Subchapter VI -- Stratospheric Ozone Protection
7671 Definitions Sec. 601
7671a Listing of class I and class II substances Sec. 602
7671b Monitoring and reporting requirements Sec. 603
7671c Phase-out of production and consumption of class I Sec. 604
substances
7671d Phase-out of production and consumption of class II Sec. 605
substances
7671e Accelerated schedule Sec. 606
7671f Exchange authority Sec. 607
7671g National recycling and emission reduction program Sec. 608
7671h Servicing of motor vehicle air conditioners Sec. 609
7671i Nonessential products containing Sec. 610
chlorofluorocarbons
7671j Labeling Sec. 611
7671k Safe alternatives policy Sec. 612
7671l Federal procurement Sec. 613
7671m Relationship to other laws Sec. 614
7671n Authority of Administrator Sec. 615
7671o Transfers among parties to Montreal Protocol Sec. 616
7671p International cooperation Sec. 617
7671q Miscellaneous provisions Sec. 618
[29 U.S.C. 655] Chemical Process Safety Management Sec. 304 of
CAA of 1990
[29 U.S.C. Clean Air Employment Transition Assistance Sec. 1101 of
1662e] CAA of 1990
Note: This table shows only the major U.S. Code sections. For more detail and to determine when
a section was added, consult the official printed version of the U.S. Code.
CRS-28
Clean Water Act6
The principal law governing pollution of the nation's surface waters is the
Federal Water Pollution Control Act, or Clean Water Act. Originally enacted in
1948, it was totally revised by amendments in 1972 that gave the act its current
shape. The 1972 legislation spelled out ambitious programs for water quality
improvement that have since been expanded and are still being implemented by
industries and municipalities. Congress made certain fine-tuning amendments in
1977, revised portions of the law in 1981, and enacted further amendments in 1987.
Table 6 lists the original law and major amendments to it.
Table 6. Clean Water Act and Major Amendments
(codified generally as 33 U.S.C. 1251-1387)
Year Act Public Law
1948 Federal Water Pollution Control Act P.L. 80-845 (Act of June 30, 1948)
1956 Water Pollution Control Act of 1956 P.L. 84-660 (Act of July 9, 1956)
1961 Federal Water Pollution Control Act P.L. 87-88
Amendments
1965 Water Quality Act of 1965 P.L. 89-234
1966 Clean Water Restoration Act P.L. 89-753
1970 Water Quality Improvement Act of 1970 P.L. 91-224, Part I
1972 Federal Water Pollution Control Act P.L. 92-500
Amendments
1977 Clean Water Act of 1977 P.L. 95-217
1981 Municipal Wastewater Treatment P.L. 97-117
Construction Grants Amendments
1987 Water Quality Act of 1987 P.L. 100-4
Authorizations for appropriations to support the law generally expired at the end
of FY1990 (September 30, 1990). Programs did not lapse, however, and Congress
has continued to appropriate funds to carry out the act. For a review of ongoing
implementation of the act, see CRS Report RL33800, Water Quality Issues in the
110th Congress: Oversight and Implementation, by Claudia Copeland.
Background
The Federal Water Pollution Control Act of 1948 was the first comprehensive
statement of federal interest in clean water programs, and it specifically provided
state and local governments with technical assistance funds to address water
pollution problems, including research. Water pollution was viewed as primarily a
state and local problem, hence, there were no federally required goals, objectives,
limits, or even guidelines. When it came to enforcement, federal involvement was
strictly limited to matters involving interstate waters and only with the consent of the
state in which the pollution originated.
6
Prepared by Claudia Copeland, Specialist in Resources and Environmental Policy,
Environmental Policy Section, Resources, Science, and Industry Division.
CRS-29
During the latter half of the 1950s and well into the 1960s, water pollution
control programs were shaped by four laws which amended the 1948 statute. They
dealt largely with federal assistance to municipal dischargers and with federal
enforcement programs for all dischargers. During this period, the federal role and
federal jurisdiction were gradually extended to include navigable intrastate, as well
as interstate, waters. Water quality standards became a feature of the law in 1965,
requiring states to set standards for interstate waters that would be used to determine
actual pollution levels.
By the late 1960s, there was a widespread perception that existing enforcement
procedures were too time-consuming and that the water quality standards approach
was flawed because of difficulties in linking a particular discharger to violations of
stream quality standards. Additionally, there was mounting frustration over the slow
pace of pollution cleanup efforts and a suspicion that control technologies were being
developed but not applied to the problems. These perceptions and frustrations, along
with increased public interest in environmental protection, set the stage for the 1972
amendments.
The 1972 statute did not continue the basic components of previous laws as
much as it set up new ones. It set optimistic and ambitious goals, required all
municipal and industrial wastewater to be treated before being discharged into
waterways, increased federal assistance for municipal treatment plant construction,
strengthened and streamlined enforcement, and expanded the federal role while
retaining the responsibility of states for day-to-day implementation of the law.
The 1972 legislation declared as its objective the restoration and maintenance
of the chemical, physical, and biological integrity of the nation's waters. Two goals
also were established: zero discharge of pollutants by 1985 and, as an interim goal
and where possible, water quality that is both "fishable" and "swimmable" by
mid-1983. While those dates have passed, the goals remain, and efforts to attain the
goals continue.
The Clean Water Act (CWA) today consists of two major parts, one being the
Title II and Title VI provisions which authorize federal financial assistance for
municipal sewage treatment plant construction. The other is regulatory requirements,
found throughout the act, that apply to industrial and municipal dischargers.
The act has been termed a technology-forcing statute because of the rigorous
demands placed on those who are regulated by it to achieve higher and higher levels
of pollution abatement. Industries were given until July 1, 1977, to install "best
practicable control technology" (BPT) to clean up waste discharges. Municipal
wastewater treatment plants were required to meet an equivalent goal, termed
"secondary treatment," by that date. (Municipalities unable to achieve secondary
treatment by that date were allowed to apply for case-by-case extensions up to July
1, 1988. According to EPA, 86% of all cities met the 1988 deadline; the remainder
were put under judicial or administrative schedules requiring compliance as soon as
possible. However, many cities, especially smaller ones, continue to make
investments in building or upgrading facilities needed to achieve secondary
treatment.) Cities that discharge wastes into marine waters were eligible for
case-by-case waivers of the secondary treatment requirement, where sufficient
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showing could be made that natural factors provide significant elimination of
traditional forms of pollution and that both balanced populations of fish, shellfish,
and wildlife and water quality standards would be protected.
The act required greater pollutant cleanup than BPT by no later than March 31,
1989, generally demanding that industry use the "best available technology" (BAT)
that is economically achievable. Compliance extensions of as long as two years are
available for industrial sources utilizing innovative or alternative technology. Failure
to meet statutory deadlines could lead to enforcement action.
Control of toxic pollutant discharges has been a key focus of water quality
programs. In addition to the BPT and BAT national standards, states are required to
implement control strategies for waters expected to remain polluted by toxic
chemicals even after industrial dischargers have installed the best available cleanup
technologies required under the law. Development of management programs for
these post-BAT pollutant problems was a prominent element in the 1987
amendments and is a key continuing aspect of CWA implementation.
Prior to the 1987 amendments, programs in the Clean Water Act were primarily
directed at point-source pollution -- wastes discharged from discrete and identifiable
sources, such as pipes and other outfalls. In contrast, except for general planning
activities, little attention had been given to nonpoint-source pollution (stormwater
runoff from agricultural lands, forests, construction sites, and urban areas), despite
estimates that it represents more than 50% of the nation's remaining water pollution
problems. As it travels across land surface towards rivers and streams, rainfall and
snowmelt runoff picks up pollutants, including sediments, toxic materials, and
conventional wastes (e.g., nutrients) that can degrade water quality.
The 1987 amendments authorized measures to address such pollution by
directing states to develop and implement nonpoint pollution management programs
(Section 319 of the act). States were encouraged to pursue groundwater protection
activities as part of their overall nonpoint pollution control efforts. Federal financial
assistance was authorized to support demonstration projects and actual control
activities. These grants may cover up to 60% of program implementation costs.
While the act imposes great technological demands, it also recognizes the need
for comprehensive research on water quality problems. This is provided throughout
the statute, on topics including pollution in the Great Lakes and Chesapeake Bay,
in-place toxic pollutants in harbors and navigable waterways, and water pollution
resulting from mine drainage. The act also provides support to train personnel who
operate and maintain wastewater treatment facilities.
Federal and State Responsibilities. Under this act, federal jurisdiction
is broad, particularly regarding establishment of national standards or effluent
limitations. The Environmental Protection Agency (EPA) issues regulations
containing the BPT and BAT effluent standards applicable to categories of industrial
sources (such as iron and steel manufacturing, organic chemical manufacturing,
petroleum refining, and others). Certain responsibilities are delegated to the states,
and this act, like other environmental laws, embodies a philosophy of federal-state
partnership in which the federal government sets the agenda and standards for
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pollution abatement, while states carry out day-to-day activities of implementation
and enforcement. Delegated responsibilities under the act include authority for
qualified states to issue discharge permits to industries and municipalities and to
enforce permits. (As of December 2006, 45 states had been delegated the permit
program; EPA issues discharge permits in the remaining states.)
In addition, states are responsible for establishing water quality standards, which
consist of a designated use (recreation, water supply, industrial, or other), plus a
numerical or narrative statement identifying maximum concentrations of various
pollutants which would not interfere with the designated use. These standards serve
as the backup to federally set technology-based requirements by indicating where
additional pollutant controls are needed to achieve the overall goals of the act.
Titles II and VI -- Municipal Wastewater
Treatment Construction
Federal law has authorized grants for planning, design, and construction of
municipal sewage treatment facilities since 1956 (Act of July 9, 1956, or P.L.
84-660). Congress greatly expanded this grant is program in 1972. Since that time
Congress has authorized $65 billion and appropriated more than $76 billion in Clean
Water Act funds to aid wastewater infrastructure plant construction (not including
congressionally earmarked appropriations for specific projects). Grants are allocated
among the states according to a complex statutory formula that combines two factors:
state population and an estimate of municipal sewage treatment funding needs
derived from a biennial survey conducted by EPA and the states.
The most recent EPA-state estimate, completed in 2000, indicated that nearly
$181 billion is needed to build and upgrade needed municipal wastewater treatment
plants in the United States and for other types of water quality improvement projects
that are eligible for funding under the act. In 2002, EPA released a new report called
the Gap Analysis which estimated that, over the next two decades, the United States
needs to spend nearly $390 billion to replace existing wastewater infrastructure
systems and to build new ones. Estimates of future funding needs and questions
about federal support continue to be prominent.
Under the Title II construction grants program established in 1972, federal
grants were made for several types of projects (such as secondary or more stringent
treatment and associated sewers) based on a priority list established by the states.
Grants were generally available for as much as 55% of total project costs. For
projects using innovative or alternative technology (such as reuse or recycling of
water), as much as 75% federal funding was allowed. Recipients were responsible
for non-federal costs but were not required to repay federal grants.
Policymakers have debated the tension between assisting municipal funding
needs, which remain large, and the impact of grant programs such as the Clean Water
Act's on federal spending and budget deficits. In the 1987 amendments to the act,
Congress attempted to deal with that apparent conflict by extending federal aid for
wastewater treatment construction through FY1994, yet providing a transition
towards full state and local government responsibility for financing after that date.
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Grants under the traditional Title II program were authorized through FY1990.
Under Title VI of the act, grants to capitalize State Water Pollution Control
Revolving Funds, or loan programs, were authorized beginning in FY1989 to replace
the Title II grants. States contribute matching funds, and under the revolving loan
fund concept, monies used for wastewater treatment construction will be repaid to
a state, to be available for future construction in other communities. All states now
have functioning loan programs, but the shift from federal grants to loans, since
FY1991, has been easier for some than others. The new financing requirements have
been a problem for cities (especially small towns) that have difficulty repaying
project loans. Statutory authorization for grants to capitalize state loan programs
expired in 1994; however, Congress has continued to provide annual appropriations.
Permits, Regulations, and Enforcement
To achieve its objectives, the act embodies the concept that all discharges into
the nation's waters are unlawful, unless specifically authorized by a permit. Thus,
more than 65,000 industrial and municipal dischargers must obtain permits from
EPA (or qualified states) under the act's National Pollutant Discharge Elimination
System (NPDES) program (authorized in Section 402 of the act). An NPDES permit
requires the discharger (source) to attain technology-based effluent limits (BPT or
BAT for industry, secondary treatment for municipalities, or more stringent for water
quality protection). Permits specify the control technology applicable to each
pollutant, the effluent limitations a discharger must meet, and the deadline for
compliance. Sources are required to maintain records and to carry out effluent
monitoring activities. Permits are issued for five-year periods and must be renewed
thereafter to allow continued discharge.
The NPDES permit incorporates numerical effluent limitations issued by EPA.
The initial BPT limitations focused on regulating discharges of conventional
pollutants, such as bacteria and oxygen-consuming materials. The more stringent
BAT limitations emphasize controlling toxic pollutants -- heavy metals, pesticides,
and other organic chemicals. In addition to these limitations applicable to categories
of industry, EPA has issued water quality criteria for more than 115 pollutants,
including 65 named classes or categories of toxic chemicals, or "priority pollutants."
These criteria recommend ambient, or overall, concentration levels for the pollutants
and provide guidance to states for establishing water quality standards that will
achieve the goals of the act.
A separate type of permit is required to dispose of dredge or fill material in the
nation's waters, including wetlands. Authorized by Section 404 of the act, this
permit program is administered by the U.S. Army Corps of Engineers, subject to and
using EPA's environmental guidance. Some types of activities are exempt from
these permit requirements, including certain farming, ranching, and forestry practices
which do not alter the use or character of the land; some construction and
maintenance; and activities already regulated by states under other provisions of the
act. EPA may delegate certain Section 404 permitting responsibility to qualified
states and has done so twice (Michigan and New Jersey). For some time, the act's
wetlands permit program has been one of the most controversial parts of the law.
Some who wish to develop wetlands maintain that federal regulation intrudes on and
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impedes private land-use decisions, while environmentalists seek more protection for
remaining wetlands and limits on activities that take place in wetlands.
Nonpoint sources of pollution, which EPA and states believe are responsible for
the majority of water quality impairments in the nation, are not subject to CWA
permits or other regulatory requirements under federal law. They are covered by
state programs for the management of runoff, under Section 319 of the act.
Other EPA regulations under the CWA include guidelines on using and
disposing of sewage sludge and guidelines for discharging pollutants from land-based
sources into the ocean. (A related statute, the Ocean Dumping Act, regulates the
intentional disposal of wastes into ocean waters.) EPA also provides guidance on
technologies that will achieve BPT, BAT, and other effluent limitations.
The NPDES permit, containing effluent limitations on what may be discharged
by a source, is the act's principal enforcement tool. EPA may issue a compliance
order or bring a civil suit in U.S. district court against persons who violate the terms
of a permit. The penalty for such a violation can be as much as $25,000 per day.
Stiffer penalties are authorized for criminal violations of the act -- for negligent or
knowing violations -- of as much as $50,000 per day, three years' imprisonment, or
both. A fine of as much as $250,000, 15 years in prison, or both, is authorized for
`knowing endangerment' -- violations that knowingly place another person in
imminent danger of death or serious bodily injury. Finally, EPA is authorized to
assess civil penalties administratively for certain well-documented violations of the
law. These civil and criminal enforcement provisions are contained in Section 309
of the act. EPA, working with the Army Corps of Engineers, also has responsibility
for enforcing against entities who engage in activities that destroy or alter wetlands.
While the CWA addresses federal enforcement, the majority of actions taken to
enforce the law are undertaken by states, both because states issue the majority of
permits to dischargers and because the federal government lacks the resources for
day-to-day monitoring and enforcement. Like most other federal environmental
laws, CWA enforcement is shared by EPA and states, with states having primary
responsibility. However, EPA has oversight of state enforcement and retains the
right to bring a direct action where it believes that a state has failed to take timely and
appropriate action or where a state or local agency requests EPA involvement.
Finally, the federal government acts to enforce against criminal violations of the
federal law.
In addition, individuals may bring a citizen suit in U.S. district court against
persons who violate a prescribed effluent standard or limitation. Individuals also
may bring citizen suits against the Administrator of EPA or equivalent state official
(where program responsibility has been delegated to the state) for failure to carry out
a nondiscretionary duty under the act.
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Table 7. Major U.S. Code Sections of the Clean Water Act
(codified generally as 33 U.S.C. 1251-1387)
Clean Water Act
33 U.S.C. Section Title (as amended)
Subchapter I -- Research and Related Programs
1251 Congressional declaration of goals and policy Sec. 101
1252 Comprehensive programs for water pollution Sec. 102
control
1253 Interstate cooperation and uniform laws Sec. 103
1254 Research, investigations, training and Sec. 104
information
1255 Grants for research and development Sec. 105
1256 Grants for pollution control programs Sec. 106
1257 Mine water pollution demonstrations Sec. 107
1258 Pollution control in the Great Lakes Sec. 108
1259 Training grants and contracts Sec. 109
1260 Applications for training grants and contracts; Sec. 110
allocations
1261 Scholarships Sec. 111
1262 Definitions and authorization Sec. 112
1263 Alaska village demonstration project Sec. 113
1265 In-place toxic pollutants Sec. 115
1266 Hudson River reclamation demonstration Sec. 116
project
1267 Chesapeake Bay Sec. 117
1268 Great Lakes Sec. 118
1269 Long Island Sound Sec. 119
1270 Lake Champlain Basin program Sec. 120
1273 Lake Pontchartrain Basin Sec. 121
1274 Wet weather watershed pilot projects Sec. 121
Subchapter II -- Grants for Construction of Treatment Works
1281 Congressional declaration of purpose Sec. 201
1282 Federal share Sec. 202
1283 Plans, specifications, estimates, and payments Sec. 203
1284 Limitations and conditions Sec. 204
1285 Allotment of grant funds Sec. 205
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Clean Water Act
33 U.S.C. Section Title (as amended)
1286 Reimbursement and advanced construction Sec. 206
1287 Authorization of appropriations Sec. 207
1288 Area wide waste treatment management Sec. 208
1289 Basin planning Sec. 209
1290 Annual survey Sec. 210
1291 Sewage collection system Sec. 211
1292 Definitions Sec. 212
1293 Loan guarantees Sec. 213
1294 Public information on water recycling, reuse Sec. 214
1295 Requirements for American materials Sec. 215
1296 Determination of priority Sec. 216
1297 Guidelines for cost-effective analysis Sec. 217
1298 Cost effectiveness Sec. 218
1299 State certification of projects Sec. 219
1300 Pilot program for alternative water source
projects Sec. 220
1301 Sewer overflow control grants Sec. 221
Subchapter III -- Standards and Enforcement
1311 Effluent Limitations Sec. 301
1312 Water quality-related effluent limitations Sec. 302
1313 Water quality standards and implementation Sec. 303
plans
1314 Information and guidelines Sec. 304
1315 State reports on water quality Sec. 305
1316 National standards of performance Sec. 306
1317 Toxic and pretreatment effluent standards Sec. 307
1318 Records and reports, inspections Sec. 308
1319 Enforcement Sec. 309
1320 International pollution abatement Sec. 310
1321 Oil and hazardous substance liability Sec. 311
1322 Marine sanitation devices Sec. 312
1323 Federal facility pollution control Sec. 313
1324 Clean lakes Sec. 314
1325 National study commission Sec. 315
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Clean Water Act
33 U.S.C. Section Title (as amended)
1326 Thermal discharges Sec. 316
1327 Omitted (alternative financing) Sec. 317
1328 Aquaculture Sec. 318
1329 Nonpoint source management program Sec. 319
1330 National estuary study Sec. 320
Subchapter IV -- Permits and Licenses
1341 Certification Sec. 401
1342 National pollutant discharge elimination Sec. 402
system
1343 Ocean discharge criteria Sec. 403
1344 Permits for dredge and fill materials Sec. 404
1345 Disposal or use of sewage sludge Sec. 405
1346 Coastal recreation water quality monitoring
and notification Sec. 406
Subchapter V -- General Provisions
1361 Administration Sec. 501
1362 Definitions Sec. 502
1363 Water pollution control advisory board Sec. 503
1364 Emergency powers Sec. 504
1365 Citizen suits Sec. 505
1366 Appearance Sec. 506
1367 Employee protection Sec. 507
1368 Federal procurement Sec. 508
1369 Administrative procedure and judicial review Sec. 509
1370 State authority Sec. 510
1371 Authority under other laws and regulations Sec. 511
1372 Labor standards Sec. 513
1373 Public health agency coordination Sec. 514
1374 Effluent standards and water quality Sec. 515
information advisory committee
1375 Reports to Congress Sec. 516
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Clean Water Act
33 U.S.C. Section Title (as amended)
1376 Authorization of appropriations Sec. 517
1377 Indian tribes Sec. 518
Subchapter VI -- State Water Pollution Control Revolving
Funds
1381 Grants to states for establishment of revolving Sec. 601
funds
1382 Capitalization grant agreements Sec. 602
1383 Water pollution control revolving loan funds Sec. 603
1384 Allotment of funds Sec. 604
1385 Corrective actions Sec. 605
1386 Audits, reports, fiscal controls, intended use Sec. 606
plan
1387 Authorization of appropriations Sec. 607
Notes: This table shows only the major code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code. 33 U.S.C. �1274 was added
by P.L. 106-554 and was designated as Section 121 of the act. Another Section 121, added by P.L.
106-457, is classified to Section 1273 of Title 33.
Ocean Dumping Act7
The Ocean Dumping Act has two basic aims: to regulate intentional ocean
disposal of materials, and to authorize related research. Title I of the Marine
Protection, Research, and Sanctuaries Act of 1972 (MPRSA, P.L. 92-532), which is
often referred to just as the Ocean Dumping Act, contains permit and enforcement
provisions for ocean dumping. Research provisions are contained in Title II,
concerning general and ocean disposal research; Title IV, which established a
regional marine research program; and Title V, which addresses coastal water quality
monitoring. The third title of the MPRSA, not addressed here, authorizes the
establishment of marine sanctuaries. Table 8 shows the original enactment and
subsequent amendments.
7
Prepared by Claudia Copeland, Specialist in Resources and Environmental Policy,
Environmental Policy Section, Resources, Science and Industry Division.
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Table 8. Ocean Dumping Act and Amendments
(codified as 33 U.S.C. 1401-1445, 16 U.S.C. 1431-1447f, 33 U.S.C. 2801-2805 )
Year Act Public Law Number
1972 Marine Protection, Research, and Sanctuaries Act P.L. 92-532
1974 London Dumping Convention Implementation P.L. 93-254
1977 Authorization of Appropriations P.L. 95-153
1980 Authorization of Appropriations P.L. 96-381
1980 Authorization of Appropriations P.L. 96-572
1982 Surface Transportation Assistance Act P.L. 97-424
1986 Budget Reconciliation P.L. 99-272, ��6061-6065
1986 Water Resources Development Act P.L. 99-662, ��211, 728,
1172
1987 Water Quality Act of 1987 P.L. 100-4, �508
1988 Ocean dumping research amendments P.L. 100-627, Title I
1988 Ocean Dumping Ban Act P.L. 100-688, Title I
1988 U.S. Public Vessel Medical Waste Anti-Dumping P.L. 100-688, Title III
Act of 1988
1990 Regional marine research centers P.L. 101-593, Title III
1992 National Coastal Monitoring Act P.L. 102-567, Title V
1992 Water Resources Development Act P.L. 102-580, ��504-510
Background
The nature of marine pollution requires that it be regulated internationally, since
once a pollutant enters marine waters, it knows no boundary. Thus, a series of
regional treaties and conventions pertaining to local marine pollution problems and
more comprehensive international conventions providing uniform standards to
control worldwide marine pollution has evolved over the last 35 years.
At the same time that key international protocols were being adopted and
ratified by large number of countries worldwide (early 1970s), the United States
enacted the MPRSA to regulate disposal of wastes in marine waters that are within
U.S. jurisdiction. It utilizes a comprehensive and uniform waste management system
to regulate disposal or dumping of all materials into ocean waters. Prior to 1972,
U.S. marine waters had been used extensively as a convenient alternative to land-
based sites for the disposal of various wastes such as sewage sludge, industrial
wastes, and pipeline discharges and runoff.
The basic provisions of the act have remained virtually unchanged since 1972,
but many new authorities have been added. These newer parts include (1) research
responsibilities for EPA; (2) specific direction that EPA phase out the disposal of
"harmful" sewage sludges and industrial wastes; (3) a ban on the ocean disposal of
sewage sludge and industrial wastes by December 31, 1991; (4) inclusion of Long
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Island Sound within the purview of the act; and (5) inclusion of medical waste
provisions. Authorizations for appropriations to support provisions of the law
expired at the end of FY1997 (September 30, 1997). Authorities did not lapse,
however, and Congress has continued to appropriate funds to carry out the act.
Four federal agencies have responsibilities under the Ocean Dumping Act:
EPA, the U.S. Army Corps of Engineers, the National Oceanic and Atmospheric
Administration (NOAA), and the Coast Guard. EPA has primary authority for
regulating ocean disposal of all substances except dredged spoils, which are under
the authority of the Corps of Engineers. NOAA is responsible for long-range
research on the effects of human-induced changes to the marine environment, while
EPA is authorized to carry out research and demonstration activities related to
phasing out sewage sludge and industrial waste dumping. The Coast Guard is
charged with maintaining surveillance of ocean dumping.
Regulating Ocean Dumping
Title I of the MPRSA prohibits all ocean dumping, except that allowed by
permits, in any ocean waters under U.S. jurisdiction, by any U.S. vessel, or by any
vessel sailing from a U.S. port. The act bans any dumping of radiological, chemical,
and biological warfare agents and any high-level radioactive waste, and medical
wastes. Permits for dumping of other materials, except dredge spoils, can be issued
by the EPA after notice and opportunity for public hearings where the Administrator
determines that such dumping will not unreasonably degrade or endanger human
health, welfare, the marine environment, ecological systems, or economic
potentialities. EPA designates sites for ocean dumping and specifies in each permit
where the material is to be disposed.
In 1977, Congress amended the act to require that dumping of municipal sewage
sludge or industrial wastes which unreasonably degrade the environment cease by
December 1981. In 1986 amendments, Congress directed that ocean disposal of all
wastes cease at the traditional 12-mile site off the New York/New Jersey coast (that
is, barred issuance of permits at the 12-mile site) and be moved to a new site 106
miles offshore. In 1988, Congress enacted several laws amending the Ocean
Dumping Act, with particular emphasis on phasing out sewage sludge and industrial
waste disposal in the ocean, which continued despite earlier legislative efforts.
In 1992, Congress amended the act to permit states to adopt ocean dumping
standards more stringent than federal standards and to require that permits conform
with long-term management plans for designated marine dumpsites, to ensure that
permitted activities are consistent with expected uses of the site.
Virtually all ocean dumping that occurs today is dredged material -- sediments
removed from the bottom of water bodies in order to maintain navigation channels
and berthing areas. The Corps of Engineers issues permits for ocean dumping of
dredged material, the bulk of which results from maintenance dredging by the Corps
itself or its contractors. According to data compiled by the Corps, each year an
average of 70 million cubic yards of dredged sediment material is disposed of in the
ocean at designated sites. Before sediments can be permitted to be dumped in the
ocean, they are evaluated to ensure that the dumping will not cause significant
CRS-40
harmful effects to human health or the marine environment. EPA is responsible for
developing criteria to ensure that the ocean disposal of dredge spoils does not cause
environmental harm. Permits for ocean disposal of dredged material are to be based
on the same criteria utilized by EPA under other provisions of the act, and to the
extent possible, EPA-recommended dumping sites are used. Where the only feasible
disposition of dredged material would violate the dumping criteria, the Corps can
request an EPA waiver. Amendments enacted in 1992 expanded EPA's role in
permitting of dredged material by authorizing EPA to impose permit conditions or
even deny a permit, if necessary to prevent environmental problems.
Permits issued under the Ocean Dumping Act specify the type of material to be
disposed, the amount to be transported for dumping, the location of the dumpsite, the
length of time the permit is valid, and special provisions for surveillance. The EPA
Administrator can require a permit applicant to provide information necessary for the
review and evaluation of the application.
Enforcement
The act authorizes EPA to assess civil penalties of not more than $50,000 for
each violation of a permit or permit requirement, taking into account such factors as
gravity of the violation, prior violations, and demonstrations of good faith; however,
no penalty can be assessed until after notice and opportunity for a hearing. Criminal
penalties (including seizure and forfeiture of vessels) for knowing violations of the
act also are authorized. In addition, the act authorizes penalties for ocean dumping
of medical wastes (civil penalties up to $125,000 for each violation and criminal
penalties up to $250,000, five years in prison, or both). The Coast Guard is directed
to conduct surveillance and other appropriate enforcement activities to prevent
unlawful transportation of material for dumping, or unlawful dumping. Like many
other federal environmental laws, the Ocean Dumping Act allows individuals to
bring a citizen suit in U.S. district court against any person, including the United
States, for violation of a permit or other prohibition, limitation, or criterion issued
under Title I of the act.
In conjunction with the Ocean Dumping Act, the Clean Water Act (CWA)
regulates all discharges into navigable waters including the territorial seas. Although
these two laws overlap in their coverage of dumping from vessels within the
territorial seas, any question of conflict is essentially moot because EPA has
promulgated a uniform set of standards (40 C.F.R. Parts 220-229). The Ocean
Dumping Act preempts the CWA in coastal waters or open oceans, and the CWA
controls in estuaries. States are permitted to regulate ocean dumping in waters within
their jurisdiction under certain circumstances.
The act also requires the EPA Administrator, to the extent possible, to apply the
standards and criteria binding upon the United States that are stated in the 1972
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matters (known as the London Dumping Convention). This Convention, signed by
more than 85 countries, includes Annexes that prohibit the dumping of mercury,
cadmium and other substances such as DDT and PCBs, solid wastes and persistent
plastics, oil, high-level radioactive wastes, and chemical and biological warfare
CRS-41
agents; and requires special permits for other heavy metals, cyanides and fluorides,
and medium- and low-level radioactive wastes.
Research and Coastal Water Quality Monitoring
Title II of the MPRSA authorizes two types of research: general research on
ocean resources, under the jurisdiction of the National Oceanic and Atmospheric
Administration (NOAA); and EPA research related to phasing out ocean disposal
activities.
NOAA is directed to carry out a comprehensive, long-term research program on
the effects not only of ocean dumping, but also of pollution, overfishing, and other
human-induced changes on the marine ecosystem. Additionally, NOAA assesses
damages from spills of petroleum and petroleum products.
EPA's research role includes "research, investigations, experiments, training,
demonstrations, surveys, and studies" to minimize or end the dumping of sewage
sludge and industrial wastes, along with research on alternatives to ocean disposal.
Amendments in 1980 required EPA to study technological options for removing
heavy metals and certain organic materials from New York City's sewage sludge.
Title IV of the MPRSA established nine regional marine research boards for the
purpose of developing comprehensive marine research plans, considering water
quality and ecosystem conditions and research and monitoring priorities and
objectives in each region. The plans, after approval by NOAA and EPA, are to guide
NOAA in awarding research grant funds under this title of the act.
Title V of the MPRSA established a national coastal water quality monitoring
program. It directs EPA and NOAA jointly to implement a long-term program to
collect and analyze scientific data on the environmental quality of coastal
ecosystems, including ambient water quality, health and quality of living resources,
sources of environmental degradation, and data on trends. Results of these activities
(including intensive monitoring of key coastal waters) are intended to provide
information necessary to design and implement effective programs under the Clean
Water Act and Coastal Zone Management Act.
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Table 9. Major U.S. Code Sections of the
Marine Protection, Research, and Sanctuaries Act
(codified as 33 U.S.C. 1401-1445, 16 U.S.C. 1431-1447f, 33 U.S.C. 2801-2805)
Section Title Ocean Dumping Act
33 U.S.C.
1401 Congressional findings, policy, declaration of Sec. 2
purpose
1401 Definitions Sec. 3
Title I -- Permit Program
1411 Prohibited acts Sec. 101
1412 Dumping permit program Sec. 102
1412a Emergency dumping of industrial waste Sec. 102A
1413 Corps of Engineers permits Sec. 103
1414 Permit conditions Sec. 104
1414a Special provisions regarding certain dumping Sec. 104A
sites
1414b Ocean dumping of sewage sludge and industrial Sec. 104B
waste
1414c Prohibition on disposal of sewage sludge at Sec. 104C
landfills on Staten Island
1415 Penalties Sec. 105
1416 Relationship to other laws Sec. 106
1417 Enforcement Sec. 107
1418 Regulations Sec. 108
1419 International cooperation Sec. 109
1420 Authorization of appropriations Sec. 111
1421 Omitted (Annual report to Congress) Sec. 112
Title II -- Research Programs
1441 Monitoring and research programs Sec. 201
1442 Research program respecting possible long- Sec. 202
range effects of pollution, overfishing, and
man-induced changes of ocean ecosystems
1443 Research program respecting ocean dumping Sec. 203
and other methods of waste disposal
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Section Title Ocean Dumping Act
1444 Annual reports Sec. 204
1445 Authorization of appropriations Sec. 205
Title III -- Marine Sanctuaries (omitted from this chapter)
Title IV -- Regional Marine Research Programs
16 U.S.C.
1447 Purposes Sec. 401
1447a Definitions Sec. 402
1447b Regional marine research boards Sec. 403
1447c Regional research plans Sec. 404
1447d Research grant program Sec. 405
1447e Report on research program Sec. 406
1447f Authorization of appropriations Sec. 407
Title V -- National Coastal Monitoring System
33 U.S.C.
2801 Purposes Sec. 501
2802 Definitions Sec. 502
2803 Comprehensive coastal water quality Sec. 503
monitoring program
2804 Report to Congress Sec. 504
2805 Authorization of appropriations Sec. 505
Safe Drinking Water Act8
The Safe Drinking Water Act (SDWA), Title XIV of the Public Health Service
Act, is the key federal law for protecting public water supplies from harmful
contaminants. First enacted in 1974 and substantively amended in 1986 and 1996,
the act is administered through programs that establish standards and treatment
requirements for public water supplies, control underground injection of wastes,
finance infrastructure projects, and protect sources of drinking water. The 1974 law
established the current federal-state arrangement in which states may be delegated
primary implementation and enforcement authority for the drinking water program.
The state-administered Public Water Supply Supervision (PWSS) Program remains
8
Prepared by Mary Tiemann, Specialist in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
CRS-44
the basic program for regulating the nation's public water systems, and 49 states have
assumed this authority. SDWA appropriations were authorized through FY2003.
Table 10. Safe Drinking Water Act and Amendments
(codified generally as 42 U.S.C. 300f-300j)
Year Act Public Law Number
1974 Safe Drinking Water Act of 1974 P.L. 93-523
1977 Safe Drinking Water Act Amendments of 1977 P.L. 95-190
1979 Safe Drinking Water Act Amendments P.L. 96-63
1980 Safe Drinking Water Act Amendments P.L. 96-502
1986 Safe Drinking Water Act Amendments of 1986 P.L. 99-339
1988 Lead Contamination Control Act of 1988 P.L. 100-572
1996 Safe Drinking Water Act Amendments of 1996 P.L. 104-182
2002 Public Health Security and Bioterrorism P.L. 107-188
Preparedness and Response Act of 2002
Background
As indicated by Table 10, the Safe Drinking Water Act has been amended
several times since enactment of the Safe Drinking Water Act of 1974 (P.L. 93-523).
Congress enacted P.L. 93-523 after nationwide studies of community water systems
revealed widespread water quality problems and health risks resulting from poor
operating procedures, inadequate facilities, and poor management of public water
supplies in communities of all sizes. The 1974 law gave EPA substantial
discretionary authority to regulate drinking water contaminants and gave states the
lead role in implementation and enforcement.
The first major amendments (P.L. 99-339), enacted in 1986, were largely
intended to increase the pace at which EPA regulated contaminants. From 1974 until
1986, EPA had regulated just one additional contaminant beyond the 22 standards
previously developed by the Public Health Service. The 1986 amendments required
EPA to (1) issue regulations for 83 specified contaminants by June 1989 and for 25
more contaminants every three years thereafter, (2) promulgate requirements for
disinfection and filtration of public water supplies, (3) ban the use of lead pipes and
lead solder in new drinking water systems, (4) establish an elective wellhead
protection program around public wells, (5) establish a demonstration grant program
for state and local authorities having designated sole-source aquifers to develop
groundwater protection programs, and (6) issue rules for monitoring injection wells
that inject wastes below a drinking water source. The amendments also increased
EPA's enforcement authority.
The Lead Contamination Control Act of 1988 (P.L. 100-572) added a new Part
F to the SDWA. These provisions were intended to reduce exposure to lead in
drinking water by requiring the recall of lead-lined water coolers, and requiring EPA
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to issue a guidance document and testing protocol for states to help schools and day
care centers identify and correct lead contamination in school drinking water.
After the regulatory schedule mandated in the 1986 amendments proved to be
unworkable for EPA, states and public water systems, the 104th Congress made
sweeping changes to the act with the SDWA Amendments of 1996 (P.L. 104-182).
As over-arching themes, these amendments aimed to target resources to address the
greatest health risks, add some regulatory flexibility, provide funding for federal
drinking water mandates, and improve water systems' compliance capacity. The
amendments revoked the requirement that EPA regulate 25 new contaminants every
three years, and provided a risk-based approach for selecting contaminants for
regulation. Among other changes, Congress added some flexibility to the standard-
setting process, required EPA to conduct health risk reduction and cost analyses for
most new standards, authorized a state revolving loan fund (SRF) program to help
public water systems finance projects needed to meet SDWA requirements, added
programs to improve small system compliance, expanded consumer information
requirements, increased the act's focus on pollution prevention through a voluntary
source water protection program, and streamlined the act's enforcement provisions.
P.L. 104-182 extended authorizations for appropriations under the act through
FY2003.
In June 2002, drinking water security provisions were added to the SDWA
through the Public Heath Security and Bioterrorism Preparedness and Response Act
of 2002 (P.L. 107-188). Key provisions of the act include requirements for
community water systems serving more than 3,300 individuals to conduct
vulnerability assessments and prepare emergency preparedness and response plans
and requirements for EPA to conduct research on preventing and responding to
terrorist or other attacks.
National Drinking Water Regulations
A key component of the SDWA is the requirement that EPA promulgate
national primary drinking water regulations for contaminants that may pose health
risks and that are likely to be present in public water supplies. Section 1412 instructs
EPA on how to select contaminants for regulation and specifies how EPA must
establish regulations once a contaminant has been selected. The regulations apply to
the roughly 168,000 privately and publicly owned water systems that provide piped
water for human consumption to at least 15 service connections or that regularly
serve at least 25 people. EPA has issued regulations for roughly 90 contaminants.
Contaminant Selection and Regulatory Schedules. Section 1412, as
amended in 1996, directs EPA to select contaminants for regulatory consideration
based on occurrence, health effects, and meaningful opportunity for health risk
reduction. Starting in 1998, and every five years thereafter, EPA must publish a list
of contaminants that may warrant regulation. Starting in 2001, and every five years
thereafter, EPA must determine whether or not to regulate at least five of the listed
contaminants. The act requires EPA to evaluate contaminants that present the
greatest health concern and to regulate contaminants that occur at concentration
levels and frequencies of public health concern. The amendments also included
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schedules for EPA to complete regulations for specific contaminants (i.e., radon,
arsenic, disinfectants and disinfection byproducts, and Cryptosproridium).
Standard Setting. For each contaminant that EPA determines requires
regulation, EPA must set a non-enforceable maximum contaminant level goal
(MCLG) at a level at which no known or anticipated adverse health effects occur and
which allows an adequate margin of safety. EPA must then set an enforceable
standard, a maximum contaminant level (MCL), as close to the MCLG as is
"feasible" using best technology, treatment techniques, or other means available
(taking costs into consideration). EPA generally sets standards based on technologies
that are affordable for large communities; however, under P.L. 104-182, EPA is now
required, when issuing a regulation for a contaminant, to list any technologies or
other means that comply with the MCL and that are affordable for three categories
of small public water systems (serving populations of 10,000 or fewer). If EPA does
not identify technologies that are affordable for small systems, then EPA must
identify small system "variance" technologies or other means that may not achieve
the MCL but are protective of public health.
Another provision added in 1996 requires EPA, when proposing a regulation,
to publish a determination as to whether or not the benefits of the standard justify the
costs. If EPA determines that the benefits do not justify the costs, EPA may, with
certain exceptions, promulgate a standard that maximizes health risk reduction
benefits at a cost that is justified by the benefits.
New SDWA regulations generally become effective three years after
promulgation. Up to two additional years may be allowed if EPA (or a state in the
case of an individual system) determines the time is needed for capital improvements.
Section 1448 outlines procedures for judicial review of EPA actions involving the
establishment of SDWA regulations and other final EPA actions.
Risk Assessment. The 1996 amendments also added risk assessment and
risk communication provisions to SDWA. When developing regulations, EPA is
required to (1) use the best available, peer-reviewed science and supporting studies
and data; and (2) make publicly available a risk assessment document that discusses
estimated risks, uncertainties, and studies used in the assessment. When proposing
drinking water regulations, EPA must publish a health risk reduction and cost
analysis (HRRCA). EPA may promulgate an interim standard without first preparing
this benefit-cost analysis or making a determination as to whether the benefits of a
regulation would justify the costs if EPA determines that a contaminant presents an
urgent threat to public health.
Variances and Exemptions. In anticipation that some systems, particularly
smaller ones, could have difficulty complying with every regulation, Congress
included in the SDWA provisions for variances and exemptions. Section 1415
authorizes a state to grant a public water system a variance from a standard if raw
water quality prevents the standard from being met despite application of best
technology, and the variance does not result in an unreasonable risk to health. A
1996 provision (Subsection 1415(e)) authorizes variances specifically for small
systems based on application of best affordable technology.
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When developing a regulation, if EPA cannot identify a technology that meets
the standard and is affordable for small systems, EPA must identify variance
technologies that are affordable but do not necessarily meet the standard. In cases
where EPA has identified variance technologies, states may grant small system
variances to systems serving 3,300 or fewer persons if the system cannot afford to
comply with a standard (through treatment, an alternative water source, or
restructuring) and the variance ensures adequate protection of public health. States
also may grant these variances to systems serving between 3,301 and 10,000 persons
with EPA approval. To receive a small system variance, the system must install a
variance technology.
Section 1416 authorizes states to grant public water systems temporary
exemptions from standards or treatment techniques if a system cannot comply for
other compelling reasons (including costs). An exemption is intended to give a water
system more time to comply with a regulation and can be issued only if it will not
result in an unreasonable health risk. A qualified system may receive an exemption
for up to three years beyond the compliance deadline. Systems serving 3,300 or fewer
persons may receive a maximum of three additional two-year extensions, for a total
exemption duration of nine years.
State Primacy
Section 1413 authorizes states to assume primary oversight and enforcement
responsibility (primacy) for public water systems. To assume primacy, states must
adopt regulations at least as stringent as national requirements, develop adequate
procedures for enforcement, adopt authority for administrative penalties, maintain
records, and develop a plan for providing emergency water supplies. Currently, 55
of 57 states and territories have primacy authority. The act authorizes $100 million
annually for EPA to make grants to states to administer the Public Water System
Supervision Program. States may also use part of their SRF grant for this purpose.
Enforcement, Consumer Information, and Citizen Suits
The Safe Drinking Water Act requires public water systems to monitor their
water supplies to ensure compliance with drinking water standards and to report
monitoring results to the states. States review monitoring data submitted by public
water systems, or conduct their own monitoring, to determine system compliance
with drinking water regulations. EPA monitors public water system compliance
primarily by reviewing the violation data submitted by the states.
Section 1414 requires that, whenever EPA finds that a public water system in
a state with primary enforcement authority does not comply with regulations, the
agency must notify the state and the system and provide assistance to bring the
system into compliance. If the state fails to commence enforcement action within 30
days after the notification, EPA is authorized to issue an administrative order or
commence a civil action. In a non-primacy state, EPA must notify an elected local
official (if any has jurisdiction over the water system) before commencing an
enforcement action against the system.
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The 1996 amendments strengthened enforcement authorities, streamlined the
process for issuing federal administrative orders, increased administrative penalty
amounts, made more sections of the act clearly subject to EPA enforcement, and
required states (as a condition of primacy) to have administrative penalty authority.
The amendments also provided that no enforcement action may be taken against a
public water system that has a plan to consolidate with another system.
Consumer Information and Reports. Enforcement provisions also require
public water systems to notify customers of violations of drinking water standards
or other requirements, such as monitoring and reporting. Systems must notify
customers within 24 hours of any violations that have the potential to cause serious
health effects as a result of short-term exposure (e.g., violations of microbial
standards). The amendments also require community water systems to mail to all
customers an annual " consumer confidence report" on contaminants detected in their
drinking water. States must prepare annual reports on the compliance of public water
systems and make summaries available to EPA and the public, and EPA must prepare
annual national compliance reports.
Citizen Suits. Section 1449 provides for citizens' civil actions. Citizen suits
may be brought against any person or agency allegedly in violation of provisions of
the act, or against the Administrator for alleged failure to perform any action or duty
that is not discretionary.
Compliance Improvement Programs
The 1996 amendments added two state-administered programs aimed at
improving public water system compliance with drinking water regulations: the
operator certification program and the capacity development program. Section 1419
required states to adopt programs for training and certifying operators of community
and non-transient non-community systems (e.g., schools and workplaces that have
their own wells). In 1999, EPA issued guidelines specifying minimum certification
standards. EPA is required to withhold 20% of a state's revolving fund (SRF) annual
grant unless the state has adopted and is implementing an operator certification
program. Section 1420 required states to establish capacity development programs,
also based on EPA guidance. These programs must include (1) legal authority to
ensure that new systems have the technical, financial, and managerial capacity to
meet SDWA requirements; and (2) a strategy to assist existing systems that are
experiencing difficulties to come into compliance. EPA is required to withhold a
portion of SRF grants from states that do not have capacity development strategies.
Ground Water Protection Programs
Most small water systems rely on ground water as a source of drinking water,
and Part C of the act focuses on ground water protection. Section 1421 authorized the
establishment of state underground injection control (UIC) programs to protect
underground sources of drinking water. In 1977, EPA issued mandated regulations
containing minimum requirements for the underground injection of wastes into five
classes of disposal wells and requiring states to prohibit any underground injection
not authorized by state permit. The law specified that the regulations could not
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interfere with the underground injection of brine from oil and gas production or
recovery of oil unless underground sources of drinking water would be affected.
Section 1422 authorized affected states to submit plans to EPA for implementing
UIC programs and, if approved, to assume primary enforcement responsibility. EPA
is required to implement the program if a state's plan has not been approved or the
state has chosen not to assume program responsibility (Section 1423). For oil and gas
injection operations only, states with UIC programs are delegated primary
enforcement authority without meeting EPA regulations (Section 1425).
Section 1424(e) authorizes EPA to make determinations, on EPA's initiative or
upon petition, that an aquifer is the sole or principal drinking water source for an
area. In areas that overlie a designated sole-source aquifer, no federal funding may
be committed for projects that EPA determines may contaminate such an aquifer.
Any person may petition for sole source aquifer designation.
The act contains three additional state programs aimed specifically at protecting
ground water. Added in 1986, Section 1427 established procedures for demonstration
programs to develop, implement, and assess critical aquifer protection areas already
designated by the Administrator as sole source aquifers. Section 1428, also added
in 1986, established an elective state program for protecting wellhead areas around
public water system wells. If a state established a wellhead protection program by
1989, and EPA approved the state's program, then EPA may award grants covering
between 50% and 90% of the costs of implementing the program. Section 1429,
added in 1996, authorizes EPA to make 50% grants to states to develop programs to
ensure coordinated and comprehensive protection of ground water within the states.
Appropriations for these three programs and for UIC state program grants were
authorized through FY2003.
Source Water Assessment and Protection Programs
In 1996, Congress broadened the act's pollution prevention focus to embrace
surface water, in addition to ground water, protection. Section 1453 required EPA to
publish guidance for states to implement source water assessment programs that
delineate boundaries of areas from which systems receive their water, and identify
the origins of contaminants in delineated areas to determine systems' susceptibility
to contamination. States with approved assessment programs may adopt alternative
monitoring requirements to provide systems with monitoring relief provided under
Section 1418.
Section 1454 authorized a source water petition program based on voluntary
partnerships between state and local governments. States may establish a program
under which a community water system or local government may submit a petition
to the state requesting assistance in developing a voluntary source water quality
protection partnership to (1) reduce the presence of contaminants in drinking water;
(2) receive financial or technical assistance; and (3) develop a long-term source water
protection strategy. This section authorized, through FY2003, $5 million each year
for grants to states to support petition programs. States also may use 10% of their
annual SRF grant to support various source water protection activities including the
petition program.
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State Revolving Funds
In 1996, Congress authorized a drinking water state revolving loan fund
(DWSRF) program to help systems finance improvements needed to comply with
SDWA regulations (Section 1452). EPA is authorized to make grants to states to
capitalize DWSRFs, which states then may use to make loans to public water
systems. States must match 20% of the federal grant, and grants are allotted among
the states based on the results of the latest quadrennial needs survey. Each state and
the District of Columbia must receive at least 1% of the appropriated funds. A state
may transfer up to 33% of the grant to the Clean Water Act (CWA) SRF, or an
equivalent amount from the CWA SRF to the DWSRF through FY2002. This
authority has been extended in subsequent appropriations acts.
DWSRFs may be used to provide loans for expenditures EPA has determined
will facilitate compliance or significantly further the act's health protection
objectives. States must make available 15% of their annual allotment for loan
assistance to systems that serve 10,000 or fewer persons, to the extent that funds can
be obligated for eligible projects. States may use up to 30% of their DWSRF grant
to provide loan subsidies (including forgiveness of principal) to help economically
disadvantaged communities. Also, states may use a portion of funds for technical
assistance, source water protection and capacity development programs, and for
operator certification. The law authorized appropriations of $599 million for FY1994
and $1 billion per year for FY1995 through FY2003 for the DWSRF program.
Drinking Water Security
The 107th Congress passed the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (P.L. 107-188). Title IV of the Bioterrorism
Act amended the SDWA to address threats to drinking water security. Key
provisions are summarized below.
Vulnerability Assessments. Section 1433 was added to SDWA, requiring
each community water system serving more than 3,300 individuals to conduct an
assessment of the system's vulnerability to terrorist attacks or other intentional acts
to disrupt the provision of a safe and reliable drinking water supply. This provision
established deadlines, based on system size, for community water systems to certify
to EPA that they had conducted a vulnerability assessment and to submit to EPA a
copy of the assessment. The law required all these systems to complete vulnerability
assessments by June 30, 2004, or earlier. Section 1433 exempts the contents of the
vulnerability assessments from disclosure under the Freedom of Information Act
(except for information contained in the certification identifying the system and the
date of the certification), and provides for civil and criminal penalties for
inappropriate disclosure of information by government officials.
In addition, Section 1433 required each community water system serving more
than 3,300 individuals to prepare or revise an emergency response plan incorporating
the results of the vulnerability assessment. EPA was required to provide guidance to
smaller systems on how to conduct vulnerability assessments, prepare emergency
response plans, and address threats.
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The act authorized $160 million for FY2002, and such sums as may be
necessary for FY2003 through FY2005, to provide financial assistance to community
water systems to conduct vulnerability assessments, to prepare response plans, and
to address basic security enhancements and significant threats.
The Bioterrorism Act also added new SDWA Sections 1434 and 1435 directing
the EPA Administrator to review methods by which terrorists or others could disrupt
the provision of safe water supplies. EPA was required to review methods for
preventing, detecting, and responding to such disruptions, and methods for providing
alternative drinking water supplies if a water system was destroyed or impaired. The
act authorized $15 million for FY2002, and such sums as may be necessary for
FY2003 through FY2005 to carry out these sections.
Emergency Powers. Under Section 1431, the Administrator has emergency
powers to issue orders and commence civil action if (1) a contaminant likely to enter
a public water supply system poses a substantial threat to public health, and (2) state
or local officials have not taken adequate action. The Bioterrorism Act amended this
section to specify that EPA's emergency powers include the authority to act when
there is a threatened or potential terrorist attack or other intentional act to disrupt the
provision of safe drinking water or to impact the safety of a community's water
supply.
Tampering with Public Water Systems. Section 1432 provides for civil
and criminal penalties against any person who tampers, attempts to tamper, or makes
a threat to tamper with a public water system. Amendments made by the Bioterrorism
Act increased criminal and civil penalties for tampering, attempting to tamper, or
making threats to tamper with public water supplies. The maximum prison sentence
for tampering was increased from 5 to 20 years. The maximum prison sentence for
attempting to tamper, or making threats to tamper, was increased from 3 to 10 years.
The maximum fine that may be imposed for tampering was increased from $50,000
to $1 million. The maximum fine for attempting to tamper, or threatening to tamper,
was increased from $20,000 to $100,000.
Emergency Assistance. SDWA Subsection 1442(b) authorizes EPA to
provide technical assistance and to make grants to states and public water systems to
assist in responding to and alleviating emergency situations. The Bioterrorism Act
amended Subsection 1442(d) to authorize appropriations for such emergency
assistance of not more than $35 million for FY2002, and such sums as may be
necessary for each fiscal year thereafter.
Other Selected Provisions
Section 1417 prohibits the use of pipe, solder, or flux that is not "lead free" (as
defined by the SDWA) in the installation or repair of public water systems or
plumbing in residential or other facilities providing drinking water. It prohibits the
sale of pipes and plumbing fixtures that are not lead free, and the sale of solder or
flux that is not lead free (unless it is properly labeled), with the exception of pipes
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used in manufacturing or industrial processing.9 The 1996 Amendments also
required limits to be set on the amount of lead that may leach from new plumbing
fixtures.
Section 1442 authorizes EPA to conduct research on the causes, treatment,
control, and prevention of diseases resulting from contaminants in water. Section
1442(b) authorizes EPA to make grants and provide technical assistance to states or
public water systems to assist them in responding to emergency situations; $35
million are authorized to be appropriated each year for this purpose. Section 1442(e)
authorized $15 million for each year, through FY2003, for EPA to provide technical
assistance to small public water systems and Indian Tribes to help them comply with
SDWA regulations. Section 1458 directed EPA to conduct studies regarding
subpopulations at greater risk, biological mechanisms, and waterborne disease
occurrences.
Section 1447 provides that any federal agency having jurisdiction over federally
owned and maintained public water systems must comply with all federal, state and
local drinking water requirements as well as any underground injection control
programs. The President may exempt a facility from compliance with a requirement
if he determines it to be in the paramount interest of the country to do so.
Exemptions last one year, but additional exemptions may be granted.
Under Section 1457, EPA may use the estrogenic substances screening program
created in the Food Quality Protection Act of 1996 (P.L. 104-170) to provide for
testing of substances that may be found in drinking water, if the Administrator
determines that a substantial population may be exposed to such substances.
9
For purposes of Section 1417, the term "lead free" refers to solders and flux containing not
more than 0.2% lead, and refers to pipes and pipe fittings containing not more than 8.0%
lead.
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Table 11. Major U.S. Code Sections of the Safe Drinking Water
Act (Title XIV of the Public Health Service Act)
(42 U.S.C. 300f-300j-26)
Safe Drinking
Water Act
42 U.S.C. Section Title (as amended)
Subchapter XII -- Safety of Public Drinking Water Systems
Part A -- Definitions
300f Definitions Sec. 1401
Part B -- Public Water Systems
300g Coverage Sec. 1411
300g-1 National drinking water regulations Sec. 1412
300g-2 State primary enforcement responsibility Sec. 1413
300g-3 Enforcement of drinking water regulations Sec. 1414
300g-4 Variances Sec. 1415
300g-5 Exemptions Sec. 1416
300g-6 Prohibitions on the use of lead pipes, solder, and Sec. 1417
flux
300g-7 Monitoring of contaminants Sec. 1418
300g-8 Operator certification Sec. 1419
300g-9 Capacity development Sec. 1420
Part C -- Protection of Underground Sources of Drinking Water
300h Regulations for state programs Sec. 1421
300h-1 State primary enforcement responsibility Sec. 1422
300h-2 Enforcement of program Sec. 1423
300h-3 Interim regulation of underground injections Sec. 1424
300h-4 Optional demonstration by states relating to oil Sec. 1425
and natural gas
300h-5 Regulation of state programs Sec. 1426
300h-6 Sole source aquifer demonstration program Sec. 1427
300h-7 State programs to establish wellhead protection Sec. 1428
areas
300h-8 State ground water protection grants Sec. 1429
Part D -- Emergency Powers
300i Emergency powers Sec. 1431
300i-1 Tampering with public water systems Sec. 1432
300i-2 Terrorist and other intentional acts Sec. 1433
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Safe Drinking
Water Act
42 U.S.C. Section Title (as amended)
300i-3 Contaminant prevention, detection, and response Sec. 1434
300i-4 Supply disruption prevention, detection and Sec. 1435
response
Part E -- General Provisions
300j Assurance of availability of adequate supplies of Sec. 1441
chemicals necessary for treatment of water
300j-1 Research, technical assistance, information Sec. 1442
300j-2 Grants for state programs Sec. 1443
300j-3 Special project grants and guaranteed loans Sec. 1444
300j-4 Records and inspections Sec. 1445
300j-5 National Drinking Water Advisory Council Sec. 1446
300j-6 Federal agencies Sec. 1447
300j-7 Judicial reviews Sec. 1448
300j-8 Citizen civil actions Sec. 1449
300j-9 General provisions Sec. 1450
300j-11 Indian Tribes Sec. 1451
300j-12 State revolving loan funds Sec. 1452
300j-13 Source water quality assessment Sec. 1453
300j-14 Source water petition program Sec. 1454
300j-15 Water conservation plan Sec. 1455
300j-16 Assistance to colonias Sec. 1456
300j-17 Estrogenic substances screening program Sec. 1457
300j-18 Drinking water studies Sec. 1458
Part F -- Additional requirements to regulate the safety of drinking water
300j-21 Definitions Sec. 1461
300j-22 Recall of drinking water coolers with lead-lined Sec. 1462
tanks
300j-23 Drinking water coolers containing lead Sec. 1463
300j-24 Lead contamination in school drinking water Sec. 1464
300j-25 Federal assistance for state programs Sec. 1465
300j-26 Certification of testing laboratories
Note: This table shows only the major code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code.
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Solid Waste Disposal Act/
Resource Conservation and Recovery Act10
The Resource Conservation and Recovery Act of 1976 (RCRA) established the
federal program regulating solid and hazardous waste management. RCRA actually
amends earlier legislation (the Solid Waste Disposal Act of 1965), but the
amendments were so comprehensive that the act is commonly called RCRA rather
than its official title.
The act defines solid and hazardous waste, authorizes EPA to set standards for
facilities that generate or manage hazardous waste, and establishes a permit program
for hazardous waste treatment, storage, and disposal facilities. RCRA was last
reauthorized by the Hazardous and Solid Waste Amendments of 1984. The
amendments set deadlines for permit issuance, prohibited the land disposal of many
types of hazardous waste without prior treatment, required the use of specific
technologies at land disposal facilities, and established a new program regulating
underground storage tanks. The authorization for appropriations under this act
expired September 30, 1988, but funding for the EPA's programs in this area has
continued; the act's other authorities do not expire.
Table 12. Solid Waste Disposal/Resource Conservation
and Recovery Act and Major Amendments
(42 U.S.C. 6901-6991k)
Year Act Public Law Number
1965 Solid Waste Disposal Act P.L. 89-272, Title II
1970 Resource Recovery Act of 1970 P.L. 91-512
1976 Resource Conservation and Recovery Act of P.L. 94-580
1976
1980 Used Oil Recycling Act of 1980 P.L. 96-463
1980 Solid Waste Disposal Act Amendments of P.L. 96-482
1980
1984 Hazardous and Solid Waste Amendments of P.L. 98-616
1984
1988 Medical Waste Tracking Act of 1988 P.L. 100-582
1992 Federal Facility Compliance Act of 1992 P.L. 102-386
1996 Land Disposal Program Flexibility Act of 1996 P.L. 104-119
10
Prepared by Mary Tiemann, Specialist in Environmental Policy, and Linda Luther,
Analyst in Environmental Policy, in the Resources, Science and Industry Division.
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Background
Federal solid waste law has gone through four major phases. The Solid Waste
Disposal Act (passed in 1965 as Title II of the Clean Air Act of 1965) focused on
research, demonstrations, and training. It provided for sharing with the states the
costs of making surveys of waste disposal practices and problems, and of developing
waste management plans. The Resource Recovery Act of 1970 changed the whole
tone of the legislation from efficiency of disposal to concern with the reclamation of
energy and materials from solid waste. It authorized grants for demonstrating new
resource recovery technology, and required annual reports from EPA on means of
promoting recycling and reducing the generation of waste. In a third phase, the
federal government embarked on a more active, regulatory role, embodied in the
Resource Conservation and Recovery Act of 1976. RCRA instituted the first federal
permit program for hazardous waste management programs and prohibited open
dumps. In a fourth phase, embodied in the Hazardous and Solid Waste Amendments
of 1984, the federal government attempted to prevent future cleanup problems by
prohibiting land disposal of untreated hazardous wastes, setting liner and leachate
collection requirements for land disposal facilities, setting deadlines for closure of
facilities not meeting standards, and establishing a corrective action program.
Regulation of Hazardous Waste
Subtitle C of RCRA created a hazardous waste management program.11 A waste
is considered "hazardous" if it is a solid waste that is ignitable, corrosive, reactive,
or toxic, or appears on a list of about 100 industrial process waste streams and more
than 500 discarded commercial products and chemicals. Some wastes are
specifically excluded, however, including irrigation return flows, industrial point
source discharges (regulated under the Clean Water Act), and nuclear material
covered by the Atomic Energy Act.
Under RCRA, hazardous waste generators must comply with regulations
concerning record keeping and reporting, waste accumulation time limits, and storage
requirements.12 RCRA regulations also require hazardous generators; transporters;
and treatment, storage, and disposal facilities (TSDFs) to use a manifest system to
track waste from its point of origin to its ultimate point of treatment or disposal (i.e.,
"cradle to grave").
11
For more information, see EPA's "Hazardous Waste: RCRA Subtitle C" webpage at
[http://www.epa.gov/region02/waste/csummary.htm].
12
Hazardous waste generators are regulated in accordance with the amount of waste they
generate each month. The EPA regulations specify three hazardous waste generator
categories: large quantity generators (LQG, generators of more the 1,000 kilograms of
hazardous waste per month), small quantity generators (SQG, generators of between 100 and
1,000 kilograms of hazardous waste per month), and conditionally exempt small quantity
generators (CESQGs, generators of less than 100 kilograms of hazardous waste per month).
For more information about the requirements applicable to each generator category, see
EPA's "Hazardous Waste Generators" webpage at [http://www.epa.gov/epaoswer/
osw/gen_trans/generate.htm].
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Transporters of hazardous waste must also meet certain standards. These
regulations were coordinated by EPA with existing regulations of the Department of
Transportation.
Hazardous waste treatment, storage, and disposal facilities (TSDFs) are required
to have permits, to comply with operating standards specified in that permit, to meet
financial requirements in case of accidents, and to close their facilities in accordance
with EPA regulations. The 1984 amendments imposed a number of new
requirements on TSDFs with the intent of minimizing land disposal. Bulk or
noncontainerized hazardous liquid wastes are prohibited from disposal in any
landfill, and severe restrictions are placed on the disposal of containerized hazardous
liquids, as well as on the disposal of nonhazardous liquids in hazardous waste
landfills. The land disposal of specified highly hazardous wastes was phased out
over the period from 1986 to 1990. EPA was directed to review all wastes that it has
defined as hazardous and to make a determination as to the appropriateness of land
disposal for them. Minimum technological standards were set for new landfills and
surface impoundments requiring, in general, double liners, a leachate collection
system, and groundwater monitoring.
States are encouraged and financially assisted to assume EPA's hazardous waste
program, which went into effect November 19, 1980. All 50 states and territories
have been granted authority to implement the base RCRA program. State RCRA
programs must be at least as stringent as the federal program.
As EPA develops new regulations, a state's program must be reviewed to
determine whether the state has authority to enforce comparable requirements.13 As
a result, many states are also authorized to implement individual RCRA program
elements that EPA promulgated after 1984 (e.g., Corrective Action, Landfill Disposal
Restrictions, and Recycled Used Oil Management Standards).14
Solid Waste Provisions
Subtitle D of RCRA establishes state and local governments as the primary
planning, regulating, and implementing entities for the management of
non-hazardous solid waste, such as household garbage and non-hazardous industrial
solid waste.15 A significant solid waste provision in RCRA is the prohibition of open
dumps. This prohibition is implemented by the states, using EPA criteria to
determine which facilities qualify as sanitary landfills and may remain open. EPA's
criteria were originally promulgated in 1979; open dumps were to close or be
upgraded by September 13, 1984.
13
If the new EPA standard is less stringent than a state's existing standard, the state may
choose not to adopt it.
14
For information on the status of individual state programs and authorities, see EPA's
"RCRA State Authorization" page, available online at [http://www.epa.gov/
epaoswer/hazwaste/state/].
15
See EPA's "Hazardous Waste: RCRA Subtitle D" webpage at [http://www.epa.gov/
region02/waste/dsummary.htm].
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In the 1984 amendments to RCRA, EPA was required to revise the sanitary
landfill criteria for facilities that receive hazardous waste from small businesses (i.e.,
conditionally exempt small quantity generators (CESQG)) or households. Using this
authority, the agency promulgated revised regulations applicable to municipal solid
waste landfills in October 1991, with an effective date of October 9, 1993, for most
provisions. In general, the new criteria require liners, leachate collection,
groundwater monitoring, and corrective action at municipal landfills.
Other solid waste provisions authorized in RCRA include financial and
technical assistance for states and local governments (most such assistance ended in
FY1981 due to overall budget cutbacks); research, development, and demonstration
authority (most of which also fell victim to budget cutbacks); and a procurement
program, the goal of which is to stimulate markets for recycled products by requiring
federal departments and agencies to "buy recycled."
While EPA is the lead agency under RCRA, the Department of Commerce is
given several responsibilities for encouraging greater commercialization of resource
recovery technology. The department has not played an active role, however.
Underground Storage Tanks
To address a nationwide problem of leaking underground storage tanks (USTs),
Congress established a leak prevention, detection, and cleanup program through the
1984 RCRA amendments and the 1986 Superfund Amendments and Reauthorization
Act (SARA).
The 1984 RCRA amendments created a federal program to regulate USTs
containing petroleum and hazardous chemicals to limit corrosion and structural
defects, and thus minimize future tank leaks. The law directed EPA to set operating
requirements and technical standards for tank design and installation, leak detection,
spill and overfill control, corrective action, and tank closure. The UST program
(RCRA Subtitle I) is administered primarily by states. It requires registration of most
underground tanks, bans the installation of unprotected tanks, sets federal technical
standards for all tanks, coordinates federal and state regulatory efforts, and provides
for federal inspection and enforcement.
In 1986, Congress created a petroleum UST response program by amending
Subtitle I of RCRA through SARA (P.L. 99-499). Prior to SARA, EPA lacked
explicit authority to clean up contamination from leaking underground petroleum
tanks as Congress had specifically excluded petroleum products (although not
petrochemicals) from the Superfund law. The 1986 provisions authorized the federal
government to respond to petroleum spills and leaks, and created a Leaking
Underground Storage Tank (LUST) Trust Fund to fund cleanup of leaks from
petroleum USTs in cases where the UST owner or operator does not clean up a site.
The LUST Trust Fund provides money for EPA to administer the program and for
states to oversee cleanups, take enforcement actions, and undertake cleanups
themselves when necessary. The money in the fund is derived primarily from a 0.1
cent-per-gallon federal tax on motor fuels and several other petroleum products.
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The 1986 amendments also directed EPA to establish financial responsibility
requirements for UST owners and operators to cover costs of taking corrective action
and to compensate third parties for injury and property damage caused by leaking
tanks. The law required EPA to issue regulations requiring tank owners and
operators selling petroleum products to demonstrate minimum financial
responsibility. The regulations require insurance coverage of $1 million, or
alternatively, owners and operators may rely on state assurance funds to demonstrate
financial responsibility.
The Energy Policy Act of 2005 (P.L. 109-58) included in Title XV, Subtitle B,
The Underground Storage Tank Compliance Act (USTCA). This act amended
SWDA Subtitle I to add new leak prevention and enforcement provisions to the UST
regulatory program and impose new requirements on states, EPA, and tank owners.
The USTCA requires EPA, and states that receive funding under Subtitle I, to
conduct compliance inspections of all USTs at least once every three years. It also
requires states to comply with EPA guidance prohibiting fuel delivery to ineligible
tanks; develop training requirements for UST operators and individuals responsible
for tank maintenance and spill response; prepare compliance reports on government-
owned tanks in the state; and implement groundwater protection measures for UST
manufacturers and installers. The act also directed EPA to develop and implement
a strategy to address UST releases on tribal lands.
The USTCA authorized the appropriation of $155 million annually for FY2006
through FY2011 from the LUST Trust Fund for states to use to implement the new
UST leak prevention requirements and to administer state programs. Congress also
authorized trust fund appropriations of $200 million annually for FY2006 through
FY2011, for EPA and states to administer the LUST corrective action program, and
another $200 million annually for FY2006 through FY2011, specifically for
addressing releases involving methyl tertiary butyl ether (MTBE) and other
oxygenated fuels (e.g., ethanol).
Enforcement
RCRA contains stringent enforcement provisions. Criminal violations of
Subtitle C (hazardous waste) requirements are punishable by fines of as much as
$50,000 for each day of violation and/or imprisonment for as long as five years;
knowingly endangering human life brings fines of as much as $250,000 ($1 million
for a company or organization) and as long as 15 years imprisonment.
In cases not involving criminal conduct, the act authorizes civil and
administrative penalties of as much as $25,000 per day of violation. EPA is
authorized both to issue administrative compliance orders and to seek injunctive
relief through the courts. Similar civil and administrative penalties (but not criminal
penalties) apply to violations of the underground storage tank requirements in
Subtitle I. Failure to close or upgrade open dumps can also be enforced by EPA in
limited circumstances.
Like most environmental programs, RCRA in practice is largely enforced by
state agencies exercising state authority equivalent to the federal. EPA retains the
power to undertake enforcement in such "authorized" states, however: the act
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requires only that the Administrator give notice to the state in which a violation has
occurred prior to issuing an order or commencing a civil action.
RCRA also provides for citizen suits both against persons and entities alleged
to have violated standards or permit requirements and against EPA in cases where
the Administrator has failed to perform an action that is nondiscretionary under the
act.
Amendments to RCRA
RCRA has been amended nine times, some of which were noncontroversial
additions clarifying portions of the law or correcting clerical errors in the text. The
most significant sets of amendments occurred in 1980, 1984, and 1992.
1980 Amendments. The Solid Waste Disposal Act Amendments of 1980
provided EPA tougher enforcement powers to deal with illegal dumpers of hazardous
waste; the agency's authority to regulate certain high-volume, low-hazard wastes
(known as "special wastes") was restricted; funds were authorized to conduct an
inventory of hazardous waste sites; and RCRA authorizations for appropriations were
extended through FY1982. Amending language contained in Superfund, P.L.
96-510, established an Assistant Administrator for Solid Waste and Emergency
Response at EPA.
Hazardous and Solid Waste Amendments of 1984. The most significant
set of amendments to RCRA was the Hazardous and Solid Waste Amendments of
1984 (HSWA), a complex law with many detailed technical requirements. In
addition to restrictions on land disposal, and the inclusion of small quantity
generators (SQGs) in the hazardous waste regulatory scheme that was summarized
above, HSWA created the new regulatory program for underground storage tanks
(also described above). EPA was directed to issue regulations governing those who
produce, distribute, and use fuels produced from hazardous waste, including used oil.
Under HSWA, hazardous waste facilities owned or operated by federal, state, or local
government agencies must be inspected annually, and privately owned facilities must
be inspected at least every two years. Each federal agency was required to submit to
EPA an inventory of hazardous waste facilities it ever owned.
The 1984 law also imposed on EPA a timetable for issuing or denying permits
for TSDFs; required permits to be for fixed terms not exceeding 10 years; terminated
in 1985 the "interim status" of land disposal facilities that existed prior to RCRA's
enactment, unless they met certain requirements; required permit applications to be
accompanied by information regarding the potential for public exposure to hazardous
substances in connection with the facility; and authorized EPA to issue experimental
permits for facilities demonstrating new technologies. EPA's enforcement powers
were increased, the list of prohibited actions constituting crimes was expanded,
penalties were increased, and the citizen suit provisions were expanded. Other
provisions prohibited the export of hazardous waste unless the government of the
receiving country formally consented to accept it; created an ombudsman's office in
EPA to deal with RCRA-associated complaints, grievances, and requests for
information; and reauthorized RCRA through FY88 at a level of about $250 million
per year.
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HSWA also specified that owners or operators of TSDFs are responsible for
investigating and, as necessary, cleaning up releases at or from their facilities,
regardless of when the releases occurred. EPA refers to this cleanup of TSDFs under
these statutory authorities as RCRA Corrective Action.
Finally, HSWA called for a National Ground Water Commission to assess and
report to Congress in two years on groundwater issues and contamination from
hazardous wastes. The commission was never funded and never established,
however.
Federal Facility Compliance Act. The third major set of amendments was
the Federal Facility Compliance Act of 1992. This act resolves the legal question of
whether federal facilities are subject to enforcement actions under RCRA, by
unequivocally waiving the government's sovereign immunity from prosecution. As
a result, states, EPA, and the Department of Justice can enforce the provisions of
RCRA against federal facilities, and federal departments and agencies can be
subjected to injunctions, administrative orders, and/or penalties for noncompliance.
Furthermore, federal employees may be subject to criminal sanctions, including both
fines and imprisonment under any federal or state solid or hazardous waste law. The
act also contains special provisions applicable to mixtures of radioactive and
hazardous waste at Department of Energy facilities and to munitions, military ships,
and military sewage treatment facilities handling hazardous wastes.
1996 Amendments. The 104th Congress passed an additional set of
amendments to RCRA, the Land Disposal Program Flexibility Act (P.L. 104-119).
This act exempts hazardous waste from RCRA regulation if it is treated to a point
where it no longer exhibits the characteristic that made it hazardous, and is
subsequently disposed in a facility regulated under the Clean Water Act or in a Class
I deep injection well regulated under the Safe Drinking Water Act. A second
provision of the bill exempted small landfills located in arid or remote areas from
ground water monitoring requirements, provided there is no evidence of ground
water contamination.
Other Recent Laws Affecting Solid Waste Management
Although not technically amending RCRA, the 101st, 103rd, and 104th
Congresses enacted five other solid/hazardous waste-related measures.
Sanitary Food Transportation Act. The Sanitary Food Transportation Act
of 1990 (P.L. 101-500) required the regulation of trucks and rail cars that haul both
food and solid waste (a problem commonly referred to as "backhauling of garbage").
The act directed the Departments of Agriculture, Health and Human Services, and
Transportation to promulgate regulations specifying (1) record keeping and
identification requirements; (2) decontamination procedures for refrigerated trucks
and rail cars; and (3) materials for construction of tank trucks, cargo tanks, and
ancillary equipment.
Clean Air Act. The Clean Air Act Amendments of 1990 (P.L. 101-549)
contained a provision mandating stronger federal standards for solid waste
incinerators. The law requires EPA to issue new source performance standards to
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control air emissions from municipal, hospital, and other commercial and industrial
incinerators. New facilities must comply with the EPA rules within six months of
the time they are issued, and existing units must comply within five years of issuance.
Pollution Prevention Act. The Pollution Prevention Act of 1990 (Sections
6601-6610 of P.L. 101-508) was passed as part of the Omnibus Budget
Reconciliation Act of 1990. The measure declared pollution prevention to be the
national policy, and directed EPA to undertake a series of activities aimed at
preventing the generation of pollutants, rather than controlling pollutants after they
are created. Matching grants were authorized for states to establish technical
assistance programs for businesses, and EPA was directed to establish a Source
Reduction Clearinghouse to disseminate information. The act also imposed new
reporting requirements on industry. Firms that were required to file an annual toxic
chemical release form under the Emergency Planning and Community Right-to-
Know Act of 1986 must also file a report detailing their source reduction and
recycling efforts over the previous year. A more complete description of the act,
which addresses air and water pollution as well as waste, is provided in the first
section of this report.
Indian Lands Open Dump Cleanup Act. The Indian Lands Open Dump
Cleanup Act of 1994 (P.L. 103-399) required the Indian Health Service (IHS) to
provide technical and financial support to inventory and close open dumps on Indian
lands, and to maintain the sites after closure. According to IHS, only two of more
than 600 waste dumps on Indian lands met current EPA regulations prior to the law's
enactment.
Mercury-Containing and Rechargeable Battery Management Act.
The 104th Congress passed legislation (P.L. 104-142) exempting battery collection
and recycling programs from certain hazardous waste management requirements,
prohibiting the use of mercury in batteries, and requiring labels on batteries to
encourage proper disposal and recycling. By exempting battery collection and
management programs from some parts of RCRA, the law was expected to stimulate
new recycling programs.
CRS-63
Table 13. Major U.S. Code Sections of the Solid Waste Disposal/
Resource Conservation and Recovery Act
(codified generally as 42 U.S.C. 6901 et seq.)
42 U.S.C. Section Title RCRA
Subchapter I -- General Provisions Subtitle A
6901 Congressional findings Sec. 1002
6901a Congressional findings; used oil Sec. 2 of P.L. 96-463
recycling
6902 Objectives and national policy Sec. 1003
6903 Definitions Sec. 1004
6904 Governmental cooperation Sec. 1005
6905 Application of chapter and integration Sec. 1006
with other Acts
6906 Financial disclosure Sec. 1007
6907 Solid waste management information Sec. 1008
and guidelines
6908 Small town environmental planning Sec. 109 of P.L. 102-386
Subchapter II -- Office of Solid Waste Authorities of Subtitle B
Administrator
6911 Office of Solid Waste and Interagency Sec. 2001
Coordinating Committee
6911a Assistant Administrator of Sec. 307(b) of P.L. 96-
Environmental Protection Agency; 510
appointment, etc.
6912 Authorities of Administrator Sec. 2002
6913 Resource Recovery and Conservation Sec. 2003
Panels
6914 Grants for discarded tire disposal Sec. 2004
6914a Labeling of lubricating oil Sec. 2005
6914b Degradable plastic ring carriers; Sec. 102 of P.L. 100-556
definitions
6914b-1 Regulation of plastic ring carriers Sec. 103 of P.L. 100-556
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42 U.S.C. Section Title RCRA
6915 Annual report Sec. 2006
6916 General authorization Sec. 2007
6917 Office of Ombudsman Sec. 2008
Subchapter III -- Hazardous Waste Management Subtitle C
6921 Identification and listing of hazardous Sec. 3001
waste
6922 Standards applicable to generators of Sec. 3002
hazardous waste
6923 Standards applicable to transporters of Sec. 3003
hazardous waste
6924 Standards applicable to owners and Sec. 3004
operators of hazardous waste treatment,
storage, and disposal facilities
6925 Permits for treatment, storage, or Sec. 3005
disposal of hazardous waste
6926 Authorized State hazardous waste Sec. 3006
programs
6927 Inspections Sec. 3007
6928 Federal enforcement Sec. 3008
6929 Retention of State authority Sec. 3009
6930 Effective date Sec. 3010
6931 Authorization of assistance to States Sec. 3011
6932 Transferred to � 6935
6933 Hazardous waste site inventory Sec. 3012
6934 Monitoring, analysis, and testing Sec. 3013
6935 Restrictions on recycled oil Sec. 3014
6936 Expansion during interim status Sec. 3015
6937 Inventory of Federal agency hazardous Sec. 3016
waste facilities
6938 Export of hazardous wastes Sec. 3017
6939 Domestic sewage Sec. 3018
6939a Exposure information and health Sec. 3019
assessments
6939b Interim control of hazardous waste Sec. 3020
injection
6939c Mixed waste inventory reports and plan Sec. 3021
6939d Public vessels Sec. 3022
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42 U.S.C. Section Title RCRA
6939e Federally owned treatment works Sec. 3023
Subchapter IV -- State or Regional Solid Waste Plans Subtitle D
6941 Objectives of subchapter Sec. 4001
6941a Energy and materials conservation and Sec. 32(a) of P.L. 96-482
recovery; Congressional findings
6942 Federal guidelines for plans Sec. 4002
6943 Requirements for approval of plans Sec. 4003
6944 Criteria for sanitary landfills; sanitary Sec. 4004
landfills required for all disposal
6945 Upgrading of open dumps Sec. 4005
6946 Procedure for development and Sec. 4006
implementation of State plan
6947 Approval of State plan; Federal Sec. 4007
assistance
6948 Federal assistance Sec. 4008
6949 Rural communities assistance Sec. 4009
6949a Adequacy of certain guidelines and Sec. 4010
criteria
Subchapter V -- Duties of Secretary of Commerce in Subtitle E
Resource and Recovery
6951 Functions Sec. 5001
6952 Development of specifications for Sec. 5002
secondary materials
6953 Development of markets for recovered Sec. 5003
materials
6954 Technology promotion Sec. 5004
6955 Marketing policies; establishment; Sec. 5005
nondiscrimination requirement
6956 Authorization of appropriations Sec. 5006
Subchapter VI -- Federal Responsibilities Subtitle F
6961 Application of Federal, State and local Sec. 6001
law to Federal facilities
6962 Federal procurement Sec. 6002
6963 Cooperation with Environmental Sec. 6003
Protection Agency
6964 Applicability of solid waste disposal Sec. 6004
guidelines to Executive agencies
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42 U.S.C. Section Title RCRA
6965 Chief Financial Officer report Sec. 110 of P.L. 102-386
Subchapter VII -- Miscellaneous Provisions Subtitle G
6971 Employee protection Sec. 7001
6972 Citizen suits Sec. 7002
6973 Imminent hazard Sec. 7003
6974 Petition for regulations; public Sec. 7004
participation
6975 Separability Sec. 7005
6976 Judicial review Sec. 7006
6977 Grants or contracts for training projects Sec. 7007
6978 Payments Sec. 7008
6979 Labor standards Sec. 7009
6979a Transferred to � 6939b
6979b Law enforcement authority Sec. 7010
Subchapter VIII Research, Development, Subtitle H
-- Demonstration, and Information
6981 Research, demonstration, training, and Sec. 8001
other activities
6982 Special studies; plans for research, Sec. 8002
development, and demonstrations
6983 Coordination, collection, and Sec. 8003
dissemination of information
6984 Full-scale demonstration facilities Sec. 8004
6985 Special study and demonstration Sec. 8005
projects on recovery of useful energy
and materials
6986 Grants for resource recovery systems Sec. 8006
and improved solid waste disposal
facilities
6987 Authorization of appropriations Sec. 8007
Subchapter IX -- Regulation of Underground Storage Subtitle I
Tanks
6991 Definitions and exemptions Sec. 9001
6991a Notification Sec. 9002
6991b Release detection, prevention, and Sec. 9003
correction regulations
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42 U.S.C. Section Title RCRA
6991c Approval of State programs Sec. 9004
6991d Inspections, monitoring, testing, and Sec. 9005
corrective action
6991e Federal enforcement Sec. 9006
6991f Federal facilities Sec. 9007
6991g State authority Sec. 9008
6991h Study of underground storage tanks Sec. 9009
6991i Authorization of appropriations Sec. 9010
Subchapter X -- Demonstration Medical Waste Tracking Subtitle K
Program
6992 Scope of demonstration program for Sec. 11001
medical waste
6992a Listing of medical wastes Sec. 11002
6992b Tracking of medical waste Sec. 11003
6992c Inspections Sec. 11004
6992d Enforcement Sec. 11005
6992e Federal facilities Sec. 11006
6992f Relationship to State law Sec. 11007
6992g Report to Congress Sec. 11008
6992h Health impacts report Sec. 11009
6992i General provisions Sec. 11010
6992j Effective date Sec. 11011
6992k Authorization of appropriations Sec. 11012
Note: This table shows only the major code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code.
Superfund16
The Superfund hazardous substance cleanup program was created by the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA, P.L. 96-510, enacted December 11, 1980). It was enlarged and
reauthorized by the Superfund Amendments and Reauthorization Act of 1986
(SARA, P.L. 99-499). CERCLA, as amended, is codified as 42 U.S.C. 9601-9675.
The law's taxing authority was extended through December 31, 1995, by the
16
Prepared by Mark Reisch, Analyst in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
CRS-68
Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508). The program was
authorized at $1.7 billion per year through FY1991 by SARA, and through FY1994
by P.L. 101-508.
Targeted amendments in 1992 and 1996 (P.L. 102-426 and P.L. 104-201)
addressed transferring of contaminated defense sites; another 1996 amendment (P.L.
104-208) amended CERCLA to protect lenders. In 1999, P.L. 106-113 absolved
recyclers from CERCLA liability. The brownfields program acquired statutory
authority in 2002, in P.L. 107-118, a law that also provided liability relief to small
businesses, residential property owners, and certain other parties who did not
themselves contribute to any contamination.
Table 14. Superfund and Amendments
(codified generally as 42 U.S.C. 9601-9675)
Year Act Public Law Number
1980 Comprehensive Environmental Response, P.L. 96-510
Compensation, and Liability Act of 1980
1986 Superfund Amendments and Reauthorization Act P.L. 99-499
of 1986
1990 Superfund extension P.L. 101-508,
� 6301, 11231
1992 Community Environmental Response P.L. 102-426
Facilitation Act
1996 Asset Conservation, Lender Liability, and P.L. 104-208, Division
Deposit Insurance Protection Act A, Title II, Subtitle E
1996 Defense Authorization Act of Fiscal Year 1997 P.L. 104-201, �334
1999 Superfund Recycling Equity Act P.L. 106-113, appendix
I, Title VI
2002 Small Business Liability Relief and Brownfields P.L. 107-118
Revitalization Act
CERCLA authorizes the federal government to respond to spills and other
releases (or threatened releases) of hazardous substances, as well as to leaking
hazardous waste dumps. Hazardous substances are materials that are identified under
the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, and the Toxic
Substances Control Act, or are designated by the Environmental Protection Agency.
Response is also authorized for releases of "pollutants or contaminants," which
are broadly defined to include virtually anything that can threaten the health of "any
organism." Most nuclear materials and petroleum are excluded, except for those
petroleum products that are specifically designated as hazardous substances under
one of the laws mentioned above.
The Superfund Trust Fund may not be used for responding to (1) releases of
naturally occurring unaltered substances; (2) releases from products that are part of
the structure of residential buildings, businesses, or community structures (such as
asbestos); or (3) releases into drinking water supplies due to ordinary deterioration
CRS-69
of the water system. An exception to these three limitations is made, however, in
cases of public health or environmental emergencies when no other person has the
authority and capability to respond in a timely manner. EPA is to give priority to
releases that threaten public health or drinking water supplies.
The Fund and Taxes
The Hazardous Substances Superfund Trust Fund was first established at $1.6
billion for the 1980-1985 period. Revenues were raised primarily by taxes on crude
oil and on 42 chemicals; one-eighth of the total was authorized from the General
Fund of the Treasury.17 The taxation authority expired on September 30, 1985, and
to keep the program running during 1986 (while SARA was debated in the
conference committee), Congress authorized two repayable advances, later repaid,
to the fund: $150 million was loaned in April, and an additional $48 million was
made available in August.
For the 1987-1991 period, SARA funded the program at $8.5 billion. As
previously noted, these taxes were extended through 1995 at the same rate of $1.7
billion annually. Table 15 summarizes Superfund's revenue sources for the last 5 full
fiscal years the taxes were in effect. (The excise taxes on crude oil and chemicals,
and the corporate environmental income tax, ceased on December 31, 1995.) The
taxes, as modified by SARA, went into effect on January 1, 1987, except the tax on
imported chemical derivatives, which began on January 1, 1989. It was also
extended through 1995.
Table 15. Superfund Revenue, FY1991 to FY1995
Amount of Revenue Percentage of
Revenue ($ billion) Total Revenue
Petroleum Tax 2.800% 30.700%
Chemical Feedstocks Taxa 1.275% 14.000%
Corporate Environmental Tax 3.121% 34.300%
Cost Recoveries from 0.901% 9.900%
Responsible Parties
Fines and Penalties 0.011% 0.100%
Interest on Investmentsb 0.998% 11.000%
Total 9.106% 100.000%
Source: Funds Management Division, U.S. Treasury Department, Hazardous Substances Superfund
Trust Fund, 20X8145, Income Statement (monthly reports). Compiled by CRS.
a. Includes tax on imported chemical derivatives.
b. Includes accrued interest on investments.
17
Appropriations actually comprised 10.6% of the total during this period.
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The tax on petroleum, previously 0.79 cents per barrel according to the 1980
law, was increased to 8.2 cents per barrel for domestic crude oil, and to 11.7 cents per
barrel on imported petroleum products by the 1986 amendments. After a challenge
by several countries before an investigative panel of the General Agreement on
Tariffs and Trade, this tax was changed to 9.7 cents a barrel, regardless of source
(P.L. 101-221).
With the exception of xylene, the taxes on the 42 organic and inorganic
feedstock chemicals, which range from $0.22 to $4.87 per ton, were reimposed by
SARA at their former rates. Xylene had been the subject of a controversial Treasury
Department ruling having to do with separated isomers of the chemical and the point
of taxation. SARA allowed all those who previously paid the tax on xylene to apply
for a refund, with interest. To compensate for the lost revenues, the tax on xylene
was increased from $4.87 to $10.13 per ton.
Certain chemicals listed in the tax table are exempt from payment of the tax
when used for specified purposes, or when produced in certain ways. Thus, methane
and butane are excused from the tax when used as fuel, as are substances used in the
production of fertilizer. Also exempted are sulfuric acid when produced as a
byproduct of air pollution control, and any chemicals derived from coal.
Two new taxes were imposed by the 1986 law. Imported chemical derivatives
are taxed at a rate equal to the amount which would have been imposed on the
feedstocks used in the manufacture of the derivative if the feedstocks had been sold
in the United States for that purpose. If the importer does not furnish sufficient
information to compute the tax in that manner, the tax is 5% of the customs value of
the import. Fifty chemical derivatives are listed in the law. The Secretary of the
Treasury is to add to this list any derivative made from taxable feedstocks, if the
feedstocks make up more than 50% by weight of the raw materials used to produce
the substance. The Secretary may also add other substances to the list if taxable
feedstocks comprise more than 50% of the value of the raw materials used to make
them. For the same reasons, the Secretary may remove substances from the list as
well.
The other tax added by SARA in 1986 is the corporate environmental income
tax, which is based on the alternative minimum income tax system of the Tax Reform
Act of 1986. The tax is 0.12% ($12 per $10,000) of taxable income in excess of $2
million, and is imposed on corporations.
In addition to taxes and appropriations, the fund receives reimbursements from
polluters for cleanup and other response costs under this act and under Section 311
of the Clean Water Act, plus any penalties and punitive damages assessed under
other provisions of CERCLA.
Responding to Releases
The procedures to be followed in responding to hazardous substance releases
are detailed in the National Contingency Plan (40 CFR Part 300). The
Environmental Protection Agency (EPA) is the lead agency, except for spills in
coastal areas and inland waterways, where the Coast Guard assumes responsibility.
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There are two types of governmental response: (1) short-term removals, where
emergency action is required (for example, to avert fire or explosion, or to prevent
the imminent contamination of a water body); and (2) long-term remedial actions
taken at sites on the National Priorities List. Removals are limited to a one-year
effort and the expenditure of not more than $2 million. Remedial actions are of a
longer term, are more expensive, and frequently involve extensive engineering at the
sites.
To ensure that the most serious sites are addressed, the law calls for a National
Priorities List (NPL) to be assembled. EPA developed a Hazard Ranking System
(HRS) to construct the NPL, which scores such factors as the quantity and nature of
hazardous wastes present; the likelihood of contamination of ground water, surface
water, and air; and the proximity of the site to population and sensitive natural
environments. As of December 28, 2006, the NPL contained 1,301 proposed and
final sites. The total listed since the beginning of the program is 1,618 of which
construction has been completed at 1,008 (62%); 317 sites have been removed from
the NPL.
Before remedial action is undertaken at sites where Superfund money is used,
the state must assure (1) that it will provide future maintenance of the site (in cases
of ground or surface water cleanup, the 100% state maintenance requirement is
delayed for 10 years); (2) that off-site disposal capacity is available, if necessary; and
(3) that it will pay 10% of the costs of remedial action, or, if the site was owned
or operated by the state or a local government at the time of disposal, that it will pay
at least 50% of the costs.
Liability and Financial Responsibility
In general, waste generators, transporters who select the disposal site, and
disposal facility owners and operators are liable for response costs and for damage
to natural resources. Limits to liability are set as follows: (1) for vessels (except
incineration vessels) carrying hazardous substances as cargo or residue, the greater
of $300 per gross ton or $5 million; (2) for other vessels (except incineration
vessels), the greater of $300 per gross ton or $500,000; (3) for motor vehicles,
aircraft, pipelines, or rolling stock, $50 million or a lesser amount set by regulations,
but in no event less than $5 million; and (4) for incineration vessels and for any other
facility not specified in (3), the total of all costs of response plus as much as $50
million for any damages. The act does not impose liability for victims of exposure
to hazardous substances. Generally speaking, such victims must seek restitution for
damages in state courts.
EPA's enforcement costs are collectible from potentially responsible parties
(PRPs), as well as its cleanup costs. There are no limits to liability if the hazardous
substance release is due to misconduct; negligence; violation of any safety,
construction, or operating standards or regulations; or when cooperation and
assistance requested by a public official in connection with response activities is
denied. Triple punitive damages may be imposed for failure to comply with a
cleanup order without sufficient cause. All federal agencies are subject to the act.
CRS-72
Owners and operators of vessels and facilities are required to show evidence of
financial responsibility (such as insurance). For vessels exceeding 300 gross tons
(except non-self-propelled barges not carrying hazardous substances as cargo) such
financial responsibility is to be the greater of $300 per gross ton or $5 million. For
facilities, the amount is $1 million per occurrence, with an annual aggregate of $2
million for sudden accidental events. For non-sudden accidents coverage must be at
least $3 million per occurrence, with an annual aggregate of $6 million.
The 1986 law added a provision limiting insurance companies' liability to the
amount of coverage specified in the policy. Previously, some courts had held them
liable for higher amounts. SARA also authorized companies to form "risk retention
groups" as a means of insuring themselves (Title IV).
The 104th Congress passed the Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996,18 amending CERCLA to protect lenders
and fiduciaries from liability so long as they do not participate in the management of
a facility contaminated with hazardous substances. Lenders at times have incurred
liability after foreclosing on a contaminated property. This law details what actions
a lender may take, which include activities related to his financial interest, and
responding appropriately to the hazardous substance release. A fiduciary's liability
is limited to the value of the assets held in trust, provided the fiduciary did not cause
or contribute to the hazardous substance release.
Protection from CERCLA liability was also extended to recyclers of paper,
plastic, glass, textiles, rubber, metal, and batteries by the Superfund Recycling Equity
Act of 1999.19 This law enacted by the 106th Congress absolves recyclers from
liability unless the person has reason to believe the material would be burned, or the
consuming facility was not in compliance with environmental laws, or that hazardous
substances had been added to the material, or failed to exercise care in managing the
material. The liability exemption is inapplicable if the recyclable material contains
PCBs in excess of federal standards.
Additional limits on CERCLA liability were provided in the Small Business
Liability Relief and Brownfields Revitalization Act.20 Contributors of "de micromis"
amounts of hazardous substances (less than 110 gallons of liquid or less than 200
pounds of solid material) at an NPL site are exempt from liability if the wastes were
disposed prior to April 1, 2001. Also exempt are residential property owners, small
businesses, and small non-profit organizations that sent only municipal solid waste
to NPL sites, as well as property owners whose land abuts a Superfund site,
prospective purchasers of contaminated property, and innocent landowners.
18
P.L. 104-208, the Omnibus Appropriation Act of 1996. The language of the Asset
Conservation, Lender Liability, and Deposit Insurance Protection Act is found in Division
A, Title II, Subtitle E.
19
P.L. 106-113, Appendix I, Title VI.
20
P.L. 107-118.
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Health-Related Authorities
CERCLA created the Agency for Toxic Substances and Disease Registry
(ATSDR) in the Public Health Service to carry out the health-related authorities in
the act. ATSDR is to maintain a registry of persons exposed to toxic substances;
maintain an inventory of literature, research, and studies on the health effects of toxic
substance contamination; provide medical care and testing in cases of public health
emergencies; and periodically conduct surveys and screening programs to determine
the relationship between exposure to toxic substances and illness. Facilities of the
Public Health Service are to be made available to exposed persons in cases of public
health emergencies.
SARA created new duties for ATSDR. The agency and EPA were to prepare
a list of at least 275 of the hazardous substances most commonly found at NPL sites.
ATSDR is to prepare toxicological profiles of these substances at a rate of at least 25
per year. Where there is insufficient information on a substance, ATSDR is to
conduct research. The costs of the research program are to be borne by the
manufacturers and processors of the hazardous substances in question, in accordance
with procedures promulgated under the authorities of the Toxic Substances Control
Act, and the Federal Insecticide, Fungicide, and Rodenticide Act.
The ATSDR must perform a health assessment at each facility within one year
of its proposal for listing on the NPL. The health assessments are to assist in
determining whether or not to take additional steps to reduce human exposure to
hazardous substances, and whether to gather additional information through, for
example, epidemiological studies or health surveillance programs. Citizens may
petition ATSDR for a health assessment if they have been exposed to a hazardous
substance. ATSDR is to provide consultations to EPA, and to state and local
officials as requested, on health issues related to hazardous substances.
Cleanup Schedules
Because of slow cleanup progress, SARA set deadlines for commencing
specified numbers of site inspections, rankings for the National Priorities List,
remedial investigations and feasibility studies (RI/FSs), and physical on-site work
through November 1990. Those targets were all surpassed.
Cleanup Standards
In general, cleanups must assure protection of health and the environment,
and be cost-effective in both the long-term and the short-term. SARA requires that
cleanups meet the standards of federal and state environmental laws, but EPA may
waive a requirement when
! the action is part of a larger remedial action that will meet the
standards;
! compliance would result in a greater risk than alternative options;
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! compliance is impractical from an engineering perspective;
! an equivalent standard of performance is attained;
! in the case of a state standard, the state has not consistently applied
the standard elsewhere; or
! meeting the standard does not provide a balance between the need
for protection of health and the environment at the facility, and the
availability of amounts in the fund to respond to other sites that also
present a threat.
The law specifically requires cleanups to meet the Safe Drinking Water Act's
recommended maximum contaminant levels (RMCLs), and the Clean Water Act's
water quality criteria. The agency is directed to choose permanent remedies when
possible, as opposed to burying wastes in landfills. If a nonpermanent treatment is
employed, EPA must review the site every five years to see if it presents a threat.
States are given the opportunity for an active role in choosing the cleanup method.
Federal Facilities
CERCLA made federal agencies subject to the law in the same way as any
nongovernmental entity, and required them to clean up any hazardous waste sites
they owned or operated. The Superfund trust fund is not available to them, and the
cost of cleanup is to be funded from the agencies' appropriations. The one exception
to this rule is that the fund may be used to provide alternative water supplies in cases
where there is groundwater contamination outside the boundaries of a federally
owned facility, and there are other potentially responsible parties besides the federal
agency.
Two provisions of SARA attempted to accelerate the cleanup, and to resolve
questions of jurisdiction that have arisen. Section 120 sets out a timetable, and
requires participation in the planning and cleanup selection process by state and local
officials and the public. Where a federal agency and EPA disagree on the proposed
remedy to be undertaken at a site, EPA is to make the selection. Although
Subsection (g) prohibits the transfer of EPA's authorities under this section to any
other agency or person, an executive order signed by President Reagan on January
23, 1987, gives the Office of Management and Budget the final authority in cases
where EPA and another federal agency disagree on the remedy selection.
Nevertheless, in May and June 1988 EPA came to terms with the Department
of Defense (DOD) and the Department of Energy on model language to be inserted
in all federal facility cleanup agreements at Superfund sites owned by the two
departments. The model language provides for and recognizes (1) EPA's authority
to assess penalties in the case of noncompliance with the agreement; (2) the
departments' commitment to study and perform EPA-approved cleanups at the
facilities; (3) EPA's commitment to review and comment on the departments' studies
and plans; (4) a mechanism for resolving disputes, with final authority resting with
the EPA Administrator when staff of the agency and the departments cannot reach
agreement; and (5) enforceability of the agreements by states and citizens.
CRS-75
Federally owned sites that are not on the National Priorities List are subject to
state laws concerning removal, remedial action, and enforcement.
Information on federally owned hazardous waste sites that agencies are required
to submit under several different provisions of CERCLA and the Resource
Conservation and Recovery Act is required to be centralized in a Federal Agency
Hazardous Waste Compliance Docket. EPA established this docket on April 17,
1987, and publishes updates in the Federal Register every six months. SARA also
places strictures on the sale of federal property to ensure that any hazardous wastes
will be cleaned up prior to sale.
The second provision of interest added by SARA is found in Section 211, the
"Department of Defense Environmental Restoration Program." This section amends
Title 10 of the U.S. Code rather than CERCLA. In addition to making DOD's pre-
existing Installation Restoration Program a matter of statutory law, this provision
establishes a research program for military hazardous wastes and the health effects
of exposure to them. It also creates a special transfer account to receive
appropriations to implement this section, but allows funding to be reprogrammed for
the removal of unsafe buildings or debris at former DOD sites. The explanatory
statement of the conference committee notes that the restoration program is to be
implemented in a manner consistent with SARA, including the provisions relating
to public participation (Section 117), federal facilities (Section 120), and cleanup
standards (Section 121).21
The 102nd Congress amended CERCLA by enacting the Community
Environmental Response Facilitation Act (CERFA, P.L. 102-426). The act eases
military base closures by allowing portions of bases that are not contaminated to be
sold or transferred. The numerous base closures and realignments across the nation
have had adverse economic effects on some local communities, particularly through
the loss of jobs, and under previous law a base could not be sold or transferred for
development until environmental cleanup was completed. CERFA permits the non-
contaminated portions of bases to be transferred, while cleanup continues at the
contaminated portions, and provides for the appropriate identification on deeds and
other documents of the activities that have taken place there. It also confirms that the
U.S. government remains responsible for any further cleanup of hazardous substances
or petroleum products that might be required.
In Section 334 of P.L. 104-201, the Defense Authorization Act of Fiscal Year
1997, the 104th Congress took CERFA a step further by allowing the transfer of
federal property even if contamination remained at the site.22 EPA and the governor
of the state where the site is located must make a finding that the site is suitable for
21
U.S. Congress, Senate, Committee on Environment and Public Works, A Legislative
History of the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-949)
together with a Section-by-Section Index, Prepared by the Environment and Natural
Resources Policy Division of the Congressional Research Service of the Library of
Congress, Committee Print, 101st Congress, 2nd sess., GPO, 1990, v. 6, p. 5095.
22
This amendment appears at Section 334 of the Defense Authorization Act of Fiscal Year
1997, P.L. 104-201. It amends CERCLA Section 120(h)(3).
CRS-76
the use intended by the new owner, the intended use is consistent with protection of
public health and the environment, the public has an opportunity to comment, and the
deferral of cleanup and the transfer of property will not substantially delay any
necessary response action at the property. The deed to the property must contain
assurances that provide for any necessary restrictions on the use of the property, and
to ensure that response actions will not be disrupted; it must also assure that the
cleanup will be completed in accordance with an approved timetable, and that the
federal agency will submit an adequate budget request to the Office of Management
and Budget to complete all necessary response actions. When cleanup is completed,
the agency shall provide to the new owner a warranty to that effect.
Settlements
EPA, at its discretion, is authorized to enter into settlement agreements that are
in the public interest and that minimize litigation; such a decision is not subject to
judicial review. The agency can also prepare a nonbinding allocation of cleanup
costs among responsible parties when it would aid settlement. "Mixed funding,"
where responsible parties conduct the cleanup with some assistance from the
Superfund, is explicitly permitted. In certain situations EPA may release a party from
future liability as part of a settlement agreement. Expedited procedures for settling
with minor (de minimis) contributors of waste at a site are provided; such parties are
protected from contribution suits by others involved at the site.
States
States are authorized to participate in the cleanup process, from initial site
assessment to selecting and carrying out the remedial action, and negotiating with
responsible parties.
To encourage states to establish new treatment and disposal facilities, SARA
requires, as a condition of having its NPL sites cleaned up, that a state assure that it
will have adequate disposal capacity for all hazardous wastes expected to be
generated within the state for the next 20 years. This requirement went into effect
in November 1989.
The law requires that, in lawsuits for personal injury or property damage due to
exposure to hazardous substances, state statutes of limitations will not begin to run
until the date when the individual knows, or should have known, that the personal
injury was caused by the exposure to the hazardous substance. The purpose of this
provision is to overcome situations (e.g., long-latency diseases such as cancer) where
a party is barred from bringing a lawsuit because the statute of limitations expired
before the injury was discovered.
Enforcement
EPA's principal enforcement tool is the authority to order a potentially
responsible party (PRP) to take actions at a site that presents an imminent and
substantial danger to the public health or welfare, or the environment from an actual
or threatened hazardous substance release. Failure to obey an order may make a PRP
CRS-77
liable for triple punitive damages. CERCLA also gives EPA information-gathering
powers, and authority to enter and inspect facilities, and to obtain samples of
suspected hazardous substances. EPA can assess civil penalties of not more than
$25,000 per day ($75,000 per day for subsequent violations) for failure to comply
with its orders or for violating these and other CERCLA provisions, including (1) the
requirement to notify authorities of a hazardous substance release; (2) destruction of
records; (3) financial responsibility requirements; and (4) violating an order or
consent decree concerning settlement agreements. A subpoena power can compel the
attendance of witnesses and documents at administrative hearings. As noted in the
section on liability, EPA may seek to recover its cleanup and enforcement costs from
PRPs in order to reimburse the trust fund; the law also gives the United States a lien
on the property.
In addition, CERCLA authorizes paying awards of up to $10,000 for
information leading to criminal conviction for failure to give notice of a release, and
for destroying or concealing records. The law also has provisions protecting
employees who provide information to a state or the federal government regarding
the administration or enforcement of the Superfund law.
A state may enforce any federal or state regulation to which a remedial action
is required to conform. A consent decree (from a court) or a consent order (from
EPA) implementing a settlement agreement must contain penalties for violations of
the decree or order; it, too, is enforceable by either the state or federal government.
Individuals may bring a citizen suit against anyone, including the United States, for
violating CERCLA (or any order, agreement, etc., that has become effective pursuant
to the act). A citizen suit may also be brought against EPA or any other federal
agency for failure to perform a nondiscretionary duty required by the law.
Natural Resource Damages
In addition to imposing liability for cleanup costs, CERCLA requires PRPs to
remedy the environmental harm they caused by restoring or replacing the injured
natural resources, and by paying damages for the lost use of publicly owned
resources, including the costs of performing the damage assessment. The law and its
implementing regulations designate federal, state, and tribal authorities as trustees for
the natural resources under their jurisdiction, and they are the only ones who can
assert a claim for damages. Losses that were previously identified in an
environmental impact statement are excluded, as are injuries to a natural resource
that occurred before enactment of CERCLA. A claim must be brought within three
years of its discovery and connection to the release.
Public Participation
The public is allowed to participate in the selection of a cleanup plan, and EPA
is required to respond to public comments. Local groups can receive as much as
$50,000 to obtain technical assistance in interpreting information related to a site.
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Brownfields
EPA's brownfields program for addressing less seriously contaminated
industrial and commercial hazardous waste sites was granted statutory authority in
the Brownfields Revitalization and Environmental Restoration Act of 2001.23 The
agency initiated the program administratively in 1993 under the general authority of
CERCLA, and Congress recognized it in earmarked funding within the Superfund
appropriation since FY1997.24 The 2001 enactment directs EPA to establish: (1) a
program to provide grants to characterize, assess, and conduct planning at brownfield
sites, and to perform targeted site assessments; and (2) a program to provide grants
to capitalize revolving loan funds, or to be used directly to remediate one or more
sites. The new law also authorizes grants to assist states in establishing or enhancing
their voluntary cleanup programs.
Additionally, the Taxpayer Relief Act of 1997 (P.L. 105-34) allowed developers
to deduct from their income the costs of environmental cleanup at certain brownfields
in the same year that the expenditures are incurred. Previous Internal Revenue
Service rules required cleanup costs to be spread over a number of years. Originally
usable until December 31, 2000, the tax break was continued for one year by the Tax
Relief Extension Act of 1999 (P.L. 106-170), and was extended through 2003 by the
Consolidated Appropriations Act, 2001 (P.L. 106-554), through 2005 by the Working
Families Tax Relief Act of 2004 (P.L. 108-311), and through 2007 by the Tax Relief
and Health Care Act of 2006 (P.L. 109-432).
Table 16. Major U.S. Code Sections of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 and Amendments
(codified generally as 42 U.S.C. 9601-9675)
Comprehensive
Environmental
Response,
Compensation, and
Liability Act
42 U.S.C. Section Title (as amended)
Subchapter I -- Hazardous Substances Releases, Liability, Compensation
9601 Definitions Sec. 101
9602 Designations of additional hazardous Sec. 102
substances/reportable quantities
9603 Notification requirements respecting released Sec. 103
substances
9604 Response authorities Sec. 104
23
Title II of P.L. 107-118, the Small Business Liability Relief and Brownfields
Revitalization Act.
24
P.L. 104-204; for FY1998: P.L. 105-65; for FY1999: P.L. 105-276; for FY2000: P.L. 106-
74; for FY2001: P.L. 106-377.
CRS-79
Comprehensive
Environmental
Response,
Compensation, and
Liability Act
42 U.S.C. Section Title (as amended)
9605 National contingency plan Sec. 105
9606 Abatement actions Sec. 106
9607 Liability Sec. 107
9608 Financial responsibility Sec. 108
9609 Civil penalties Sec. 109
9610 Employee protection Sec. 110
9611 Uses of fund Sec. 111
9612 Claims procedure Sec. 112
9613 Civil proceedings Sec. 113
9614 Relationship to other law Sec. 114
9615 Presidential delegation/assignment Sec. 115
9616 Schedules Sec. 116
9617 Public participation Sec. 117
9618 High priority for drinking water supplies Sec. 118
9619 Response Action Coordinators Sec. 119
9620 Federal facilities Sec. 120
9621 Cleanup standards Sec. 121
9622 Settlements Sec. 122
9623 Reimbursement to local governments Sec. 123
9624 Methane recovery Sec. 124
9625 Sec. 6921 (b)(3)(A)(i) Sec. 125
9626 Indian tribes Sec. 126
9628 State response programs Sec. 128
Subchapter II -- Hazardous Substance Response Trust Fund
Part A -- Hazardous Substance Response Trust Fund
9631 Repealed (Establishment of Hazardous Sec. 221
Response Trust Fund)
CRS-80
Comprehensive
Environmental
Response,
Compensation, and
Liability Act
42 U.S.C. Section Title (as amended)
9632 Repealed (Liability of United States limited Sec. 222
to the amount in trust fund)
9633 Repealed (Administrative procedures) Sec. 223
Part B -- Post-Closure Liability Trust Fund
9641 Repealed (Post Closure Liability Trust Fund) Sec. 232
Subchapter III -- Miscellaneous Provisions
9651 Reports and studies Sec. 301
9652 Effective dates; savings provision Sec. 302
9653 (Repealed) Termination of authority to Sec. 303
collect taxes
9654 Applicability of Federal water pollution Sec. 304
control funding
9655 Legislative veto of rule or regulation Sec. 305
9656 Transportation of hazardous substances; Sec. 306a
listing as hazardous material; liability for
damage
9657 Separability of provisions Sec. 308
9658 Actions under state law for damages from Sec. 309
exposure to hazardous substances cases
9659 Citizen suits Sec. 310
9660 Research, development, and demonstration Sec. 311
9660a Grant program Sec. 312
9661 Love Canal property acquisition Sec. 312
9662 Limitation on contract and borrowing (Sec. 3 of SARA)
authority
Subchapter IV -- Pollution Insurance
9671 Definitions Sec. 401
9672 State laws; scope of chapter Sec. 402
9673 Risk retention groups Sec. 403
9674 Purchasing groups Sec. 404
9675 Applicability of securities laws Sec. 405
Note: This table shows on the major U.S. Code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code.
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Emergency Planning and Community
Right-to-Know Act25
The Emergency Planning and Community Right-to-Know Act (EPCRA,
codified at 42 U.S.C. 11001-11050) was enacted in 1986 as Title III of the Superfund
Amendments and Reauthorization Act (P.L. 99-499). EPCRA established state
commissions and local committees to develop and implement procedures for coping
with releases of hazardous chemicals, and mandated annual reporting to government
officials on environmental releases of such chemicals by the facilities that
manufacture or use them in significant amounts. EPA facilitates planning, enforces
compliance when necessary, and provides public access to information about
environmental releases of toxic chemicals.
Subtitle A -- Emergency Planning and Notification
EPCRA established a national framework for EPA to mobilize local government
officials, businesses, and other citizens to plan ahead for possible chemical accidents
in their communities. Subtitle A requires local planning to respond to sudden releases
of chemicals that might occur in the event of a spill, explosion, or fire. It ensures that
responsible officials will know what hazardous chemicals are used or stored by local
businesses and will be notified quickly in the event of an accident.
Under Section 301, each state is required to create a State Emergency Response
Commission (SERC), to designate emergency planning districts, and to establish
local emergency planning committees (LEPCs) for each district. Section 302
requires EPA to list extremely hazardous substances and to establish threshold
planning quantities for each substance. Originally, Congress defined chemicals as
"extremely hazardous substances" if they appeared on a list EPA published in
November 1985 as Appendix A in "Chemical Emergency Preparedness Program
Interim Guidance." However, EPA has authority to revise the list, and the threshold
quantities of chemicals. Based on listing criteria, the intent appears to be to include
only chemicals in quantities that could harm people exposed to them for only a short
period of time. The law directs each facility to notify the LEPC for its district if it
stores or uses any "extremely hazardous substance" in excess of its threshold
planning quantity.
Section 303 directs LEPCs to work with facilities handling specified "extremely
hazardous substances" to develop response procedures, evacuation plans, and training
programs for people who will be the first to respond in the event of an accident.
Upon request, facility owners and operators are required to provide an LEPC any
additional information that it finds necessary to develop or implement an emergency
plan.
Section 304 requires that facilities immediately report a sudden release of any
"extremely hazardous substance" or any "hazardous substance" (a much broader
25
Prepared by Linda-Jo Schierow, Specialist in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
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category of chemicals defined under CERCLA Section 102(a)) that exceeds the
reportable quantity to appropriate state, local, and federal officials.26 Releases of a
reportable quantity of a "hazardous substance" also must be reported to the National
Response Center under CERCLA Section 103(a). (See the section above on
Superfund).
Subtitle B -- Reporting Requirements
Subtitle B establishes various reporting requirements for facilities. The
information collected may be used to develop and implement emergency plans, as
well as to provide the public with general information about chemicals to which they
may be exposed.
The Occupational Health and Safety Act of 1970 (OSHAct) requires most
employers to provide employees with access to a material safety data sheet (MSDS)
for any "hazardous chemical." This "right-to-know" law for workers aims to ensure
that people potentially exposed to such chemicals have access to information about
the potential health effects of exposure and how to avoid them. EPCRA, Section 311
requires facilities covered by OSHAct to submit an MSDS for each "hazardous
chemical" or a list of such chemicals to the LEPC, the SERC, and the local fire
department. EPA has authority to establish categories of health and physical hazards
and to require facilities to list hazardous chemicals grouped by such categories in
their reports. An MSDS need only be submitted once, unless there is a significant
change in the information it contains. An MSDS must be provided in response to a
request by an LEPC or a member of the public. "Hazardous chemicals" are defined
by the Code of Federal Regulations, Title 29, at Section 1910.1200(c).27
EPCRA, Section 312 requires the same employers to submit annually an
emergency and hazardous chemical inventory form to the LEPC, SERC, and local
fire department. These forms must provide estimates of the maximum amount of the
chemicals present at the facility at any time during the preceding year; estimates of
the average daily amount of chemicals present; and the general location of the
chemicals in the facility.28 Information must be provided to the public in response
to a written request. EPA is authorized to establish threshold quantities for chemicals
below which facilities are not required to report.
26
Under CERCLA Section 102(a) a "hazardous substance" includes any "elements,
compounds, mixtures, solutions, and substances which, when released into the environment
may present a substantial danger to the public health or welfare or the environment."
Included in this definition are substances listed under the authority of any of the major
environmental statutes (see CERCLA Section 101(14)).
27
EPCRA excepts foods, food additives, and other substances regulated by the Food and
Drug Administration; solids in a manufactured item to the extent exposure does not occur;
substances used for personal or household purposes; substances used in research or
hospitals; and substances used in routine agricultural operations.
28
EPCRA allows facilities to report aggregate amounts of chemicals with similar health and
environmental effects. This is called "Tier I" information. However, chemical specific
information ("Tier II") must be provided on request (under certain conditions) to a SERC,
LEPC, fire department, or the public.
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Section 313 mandates development of the Toxics Release Inventory (TRI), a
computerized EPA database of "toxic chemical" releases to the environment by
manufacturing facilities. It requires manufacturing facilities that manufacture, use,
or process "toxic chemicals" to report annually to EPA on the amounts of each
chemical released to each environmental medium (air, land, or water) or transferred
off-site. EPA makes TRI data available in "raw" and summarized form to the general
public. The public may obtain specific information (e.g., about a particular
manufacturing facility) by submitting a request in writing to EPA. EPA distributes
written and electronic, nationwide and state-by-state summaries of annual data. Raw
data and summaries also are available over the Internet.29
EPCRA Section 313 generally requires a report to EPA and the state from each
manufacturer with 10 or more employees who either uses 10,000 pounds or
manufactures or processes 25,000 pounds of any "toxic chemical" during the
reporting year. However, EPA may adjust these thresholds for classes of chemicals
or categories of facilities. On November 30, 1994, EPA exempted from standard
reporting requirements facilities that manufacture, process, or otherwise use up to 1
million pounds of a toxic chemical per year, if they have less than 500 pounds of
reportable quantities of chemical per year (59 Federal Register 61488-61502,
November 30, 1994). The agency reduced the threshold that triggers reporting
requirements for releases of certain persistent, bioaccumulative, and toxic chemicals
in a rule issued October 29, 1999 (64 Federal Register 58665-58753). A rule
reducing the threshold for reporting releases of lead compounds was issued January
17, 2001 (66 Federal Register 4500-4547).
EPCRA enumerates the following data reporting requirements for each covered
chemical present at each covered facility:30
! whether it is manufactured, processed, or otherwise used, and the
general category of use;
! the maximum amount present at each location during the previous
year;
! treatment or disposal methods used; and
! amount released to the environment or transferred off-site for
treatment or disposal.
EPCRA requires reporting by manufacturers, which the law defines as facilities
in Standard Industrial Classification codes 20 through 39. The law authorized EPA
to expand reporting requirements to additional industries. EPA promulgated a rule
29
See, for example, EPA's Envirofacts, at [http://www.epa.gov/enviro/html/efovw.html];
TOXNET, operated by the National Library of Medicine, at [http://toxnet.nlm.nih.gov/
cgi-bin/sis/htmlgen?TRI]; or Right-to-Know Net, a project of OMB Watch and the Unison
Institute, at [http://rtk.net/].
30
Congress added data submission requirements for manufacturers and processors of toxic
substances when it enacted the Pollution Prevention Act of 1990 (see above).
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May 1, 1997, requiring reports on toxic releases from seven additional industrial
categories, including some metal mining, coal mining, commercial electric utilities,
petroleum bulk terminals, chemical wholesalers, and solvent recovery facilities (62
Federal Register 23834).
The original statute specified 313 "toxic chemicals" or categories of chemicals
for which reporting was required, but EPCRA gave EPA authority to add or delete
chemicals from the list either on its own initiative or in response to citizen petitions.
EPA has removed more than 15 and added roughly 350 chemicals (or categories) to
the original list. The listing criteria specified in Section 313(d)(2) authorize EPA to
add a chemical when it is "known to cause or can reasonably be anticipated to cause"
the following:
! "significant adverse acute human health effects at concentration
levels that are reasonably likely to exist beyond facility site
boundaries as a result of continuous, or frequently recurring,
releases,"
! in humans cancer, birth defects, or serious or irreversible chronic
health effects, or
! "because of -- (i) its toxicity, (ii) its toxicity and persistence in the
environment, or (iii) its toxicity and tendency to bioaccumulate in
the environment, a significant adverse effect on the environment of
sufficient seriousness, in the judgment of the Administrator, to
warrant reporting under this Section."
Subtitle C -- General Provisions
Subtitle C contains various general provisions, definitions, and authorizations.
Trade Secrets. Section 322 authorizes reporting facilities to withhold the
identity of a chemical if it is a trade secret and they follow procedures established by
EPA.
Information for Health Professionals. Special provisions are made in
Section 323 for informing health professionals of a chemical identity that has been
withheld to protect confidential business information, if the information is needed to
diagnose or treat a person exposed to the chemical.
Right to Know. Section 324 directs EPA, Governors, SERCS, and LEPCs to
make emergency response plans, MSDSs, lists of chemicals, inventory forms, toxic
chemical release forms, and follow up emergency notices available to the general
public.
Enforcement. Section 325 establishes civil, administrative, and criminal
penalties for non-compliance with mandatory provisions of the act. Citizens are
given the authority to bring civil action against a facility, EPA, a Governor, or an
SERC by Section 326.
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Chemical Transport. Chemicals being transported or stored incident to
transport are not subject to EPCRA requirements, according to Section 327.
Other Provisions. Section 328 authorizes EPA to issue regulations.
Definitions are provided in Section 329. Section 330 authorizes to be appropriated
"such sums as may be necessary" to carry out this title.
Table 17. Major U.S. Code Sections of the
Emergency Planning and Community Right-to-Know Act
42 U.S.C. Section Title
Subtitle I -- Emergency Planning and Notification Subtitle A
11001 Establishment of state commissions, planning Sec. 301
districts, and local committees
11002 Substances and facilities covered and Sec. 302
notification
11003 Comprehensive emergency response plans Sec. 303
11004 Emergency notification Sec. 304
11005 Emergency training and review of emergency Sec. 305
systems
Subchapter II -- Reporting Requirements Subtitle B
11021 Material safety data sheets Sec. 311
11022 Emergency and hazardous chemical Inventory Sec. 312
forms
11023 Toxic chemical release forms Sec. 313
Subchapter III -- General Provisions Subtitle C
11041 Relationship to other law Sec. 321
11042 Trade secrets Sec. 322
11043 Provision of information to health professions, Sec. 323
doctors and nurses
11044 Public availability of plans, data sheets, Forms Sec. 324
and follow up notices
11045 Enforcement Sec. 325
11046 Civil actions Sec. 326
11047 Exemption Sec. 327
11048 Regulations Sec. 328
11049 Definitions Sec. 329
11050 Authorizations Sec. 330
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Toxic Substances Control Act31
The Toxic Substances Control Act (TSCA, 15 U.S.C. 2601 et seq.) authorizes
the EPA to screen existing and new chemicals used in U.S. manufacturing and
commerce to identify potentially dangerous products or uses that should be subject
to federal control. Both naturally occurring and synthetic chemicals are subject to
TSCA, with the exception of chemicals regulated under other federal laws
concerning food, drugs, cosmetics, firearms, ammunition, pesticides, tobacco, or
mixtures. EPA may require manufacturers and processors of chemicals to conduct
and report the results of tests to determine the effects of potentially dangerous
chemicals on living things. Based on test results and other information, EPA must
regulate the manufacture, importation, processing, distribution, use, and/or disposal
of any chemical that presents an unreasonable risk of injury to human health or the
environment. A variety of regulatory tools is available to EPA under TSCA ranging
in severity from a total ban on production, import, and use to a requirement that a
product bears a warning label at the point of sale. TSCA directs EPA to use the least
burdensome option that can reduce risk to a level that is reasonable given the benefits
provided by the chemical product or process.
As enacted, TSCA also included a provision requiring EPA to take specific
measures to control the risks from polychlorinated biphenyls (PCBs) (Section 6(e)).
The original legislation included a single title, which has since been designated Title
I. Subsequently, four titles have been added to address specific concerns -- asbestos
in 1986 (Title II, P.L. 99-519), radon in 1988 (Title III, P.L. 100-551), lead in 1992
(Title IV, P.L. 102-550), and schools (Title V, P.L. 110-140). Title II directs EPA
to set standards for asbestos mitigation in schools and requires asbestos contractors
to be trained and certified. Title III directs EPA to provide technical assistance to
states that choose to support radon monitoring and control. Title IV provides similar
assistance with respect to abatement of lead-based paint hazards. Finally, Title V
addresses environmental issues at schools, including energy efficiency.
31
Prepared by Linda-Jo Schierow, Specialist in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
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Table 18. Toxic Substances Control Act and Major Amendments
(codified as 15 U.S.C. 2601-2671)
Year Act Public Law Number
1976 Toxic Substances Control Act P.L. 94-469
1986 Asbestos Hazard Emergency Response Act P.L. 99-519
1988 Radon Program Development Act P.L. 100-551
1990 Radon Measurement P.L. 101-508, � 10202
1990 Asbestos School Hazard Abatement P.L. 101-637
Reauthorization Act
1992 Residential Lead-Based Paint Hazard P.L. 102-550
Reduction Act of 1992
2007 Energy Independence and Security Act of 2007, P.L. 110-140
Subtitle E - Healthy High-Performance Schools
Background
Federal legislation to control toxic substances was originally proposed in 1971
by the President's Council on Environmental Quality. Its report, "Toxic Substances,"
defined a need for comprehensive legislation to identify and control chemicals whose
manufacture, processing, distribution, use, and/or disposal was potentially dangerous
and not adequately regulated under other environmental statutes. The House and
Senate each passed bills in both the 92nd and 93rd Congresses (in 1972 and 1973,
respectively), but controversies over the scope of chemical screening prior to
commercial production and distribution, level of costs, and the relationship to other
regulatory laws stalled final action. Episodes of environmental contamination --
including the Hudson River and other waterways by PCBs, the threat of stratospheric
ozone depletion from chlorofluorocarbon (CFC) emissions, and contamination of
agricultural produce by polybrominated biphenyls (PBBs) in the state of Michigan
-- together with more exact estimates of the costs of imposing toxic substances
controls, opened the way for final passage of the legislation. President Ford signed
the TSCA into law on October 11, 1976.
Title I
TSCA (Title I) directs EPA to
! require manufacturers and processors to conduct tests for existing
chemicals if (1) their manufacture, distribution, processing, use, or
disposal may present an unreasonable risk of injury to health or the
environment; or they are to be produced in substantial quantities and
the potential for environmental release or human exposure is
substantial or significant; (2) existing data are insufficient to predict
the effects of human exposure and environmental releases; and (3)
testing is necessary to develop such data (Section 4);
! prevent future risks through pre-manufacture screening and
regulatory tracking of new chemical products (Section 5);
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! control unreasonable risks already known, or as they are discovered
for existing chemicals (Section 6); and
! gather and disseminate information about chemical production, use,
and possible adverse effects to human health and the environment
(Section 8).
Authorization for appropriations for these activities and a state grant program for
control of toxic substances in the environment expired on September 30, 1983,
although appropriations for these programs have continued.
Testing of Chemicals. Many chemicals, even some in widespread use, are
not well characterized in terms of their potential health and environmental effects.
One of the major goals of TSCA was to induce the development of test data by
producers (i.e., manufacturers, importers, and processors) of chemicals in commerce.
Section 4 of TSCA directs EPA to require the development of test data on existing
chemicals when certain conditions prevail: (1) the manufacture, processing,
distribution, use, or disposal of the chemical "may present an unreasonable risk," or
(2) the chemical is produced in very large volume and there is a potential for a
substantial quantity to be released into the environment or for substantial or
significant human exposure. Under either condition, EPA must issue a rule requiring
tests if (a) existing data are insufficient to resolve the question of safety, and (b)
testing is necessary to develop the data.
Because there were more than 55,000 chemicals in U.S. commerce at the time
EPA was to begin developing test rules, Congress established a special interagency
committee to help EPA determine which chemicals should be considered first, and
to coordinate testing needs and efforts among government agencies. At least every
six months the Interagency Testing Committee (ITC) must consider candidate
chemicals for inclusion on a list of substances that the ITC recommends to EPA for
development and promulgation of test rules. TSCA directs the ITC to "designate"
a subset of chemicals on the list for EPA action within 12 months. The list can
contain no more than 50 "designated" chemicals at any time. When a chemical is
designated, EPA has one year to respond by issuing a proposed test rule or a notice
explaining why no testing is needed.
TSCA requires the ITC to consider the following factors when it makes listing
decisions: (1) quantity of the substance to be manufactured, (2) quantity of the
chemical in environmental releases, (3) number of people who will be exposed
occupationally and the duration of exposure, (4) extent of non-occupational human
exposure, (5) similarity of the chemical to any other chemical known to present an
unreasonable risk, (6) existence of data concerning environmental or health effects
of the chemical, (7) the quantity of information to be gained by testing, and (8) the
availability of facilities and personnel for performing testing. Chemicals known or
suspected to cause or contribute to cancer, gene mutations, or birth defects are to be
assigned a higher priority. In response to information that indicates "there may be
a reasonable basis to conclude that a chemical ... presents or will present a significant
risk of serious or widespread harm to human beings from cancer, gene mutations, or
birth defects," TSCA requires EPA action to prevent or reduce that risk or
publication of a finding that the risk is not unreasonable.
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Pre-manufacture Notification for New Chemicals or Uses. TSCA
(Section 5) requires manufacturers, importers, and processors to notify EPA at least
90 days prior to producing or otherwise introducing a new chemical product into the
United States. Any information or test data that is known to, reasonably ascertainable
by, or in possession of the notifier, and that might be useful to EPA in evaluating the
chemical's potential adverse effects on human health or the environment, must be
submitted to EPA at the same time. TSCA also requires EPA to be notified when
there are plans to produce, process, or use an existing chemical in a way that differs
from previously permitted uses, if the Administrator has determined by rule that new
uses of the chemical may produce significant changes in human and environmental
exposures and therefore require notification. The 90-day notice provides EPA with
the opportunity to evaluate the chemical use and, if necessary, to prohibit or limit
such activity before it occurs to prevent unreasonable risk of injury to human health
or the environment.
EPA has 45 days after notification (or up to 90 days if it extends the period for
good cause) to evaluate the potential risk posed by the chemical. If EPA determines
that there is a reasonable basis to conclude that the substance presents or will present
an unreasonable risk, the Administrator must promulgate requirements to protect
adequately against such risk. Alternatively, EPA may determine that the proposed
activity related to a chemical does not present an unreasonable risk; this decision may
be based on the available data, or, when no data exist to document the effects of
exposure, on what is known about the effects of chemicals in commerce with similar
chemical structures and used in similar ways.
The purpose of EPA's screening procedure is to identify potential hazards, and
control them before use of a chemical becomes widespread. If data are inadequate
to make an informed judgment and (1) manufacture, processing, distribution in
commerce, use, or disposal may present an unreasonable risk, or (2) a chemical is to
be produced in substantial quantities, and the potential for environmental release or
human exposure is substantial or significant, EPA may issue a proposed order to
prohibit or limit such activities until sufficient data are submitted.
Although the legislative history of TSCA includes a presumption that testing of
new products would take place before they were widely used, either as the chemical
was developed, or as its markets grew, TSCA also forbids promulgation of blanket
testing requirements for all new chemicals. This reflects concern that uniform testing
requirements might stifle innovation in the chemical industry. Thus, EPA must
decide which chemicals, or which categories of chemicals, warrant the costs of
premarket testing. EPA reviews more than 1,000 new chemical manufacturing
notices annually.
Regulatory Controls for Hazardous Chemicals. TSCA requires EPA
to regulate manufacturing, processing, distribution in commerce, use, or disposal of
a chemical if it will present an unreasonable risk of injury to health or the
environment, and the risk cannot be reduced to a sufficient degree under another
federal law administered by EPA. The alternative means available to EPA for
controlling chemical hazards that present unreasonable risks are specified in Section
6 of TSCA. EPA has the authority to:
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! prohibit or limit the amount of production or distribution of a
substance in commerce;
! prohibit or limit the production or distribution of a substance for a
particular use;
! limit the volume or concentration of the chemical produced;
! prohibit or regulate the manner or method of commercial use;
! require warning labels and/or instructions on containers or products;
! require notification of the risk of injury to distributors and, to the
extent possible, consumers;
! require record-keeping by producers;
! specify disposal methods; and
! require replacement or repurchase of products already distributed.
EPA also may impose any of these requirements in combination, or for a specific
geographical region. However, EPA is required by TSCA to regulate only "to the
extent necessary to protect adequately" against a risk, and to use the "least
burdensome" regulatory approach, even in controlling unreasonable risks.
Information Gathering. Section 8 of TSCA requires EPA to develop and
maintain an inventory of all chemicals, or categories of chemicals, manufactured or
processed in the United States. The first version of this inventory identified
approximately 55,000 chemicals in commerce in 1979. All chemicals not on the
inventory are, by definition, "new" and subject to the notification provisions of
Section 5. These chemicals must be added to the inventory if they enter U.S.
commerce. Chemicals need not be listed if they are only produced in very small
quantities for purposes of experimentation or research.
To aid EPA in its duties under TSCA, the agency was granted considerable
authority to collect information from industries. EPA may require maintenance of
records and reporting of: chemical identities, names, and molecular structures;
categories of use; amounts manufactured and processed for each category of use;
descriptions of byproducts resulting from manufacture, processing, use, and disposal;
environmental and health effects; number of individuals exposed; number of
employees exposed and the duration of exposure; and manner or method of chemical
disposal.
Manufacturers, processors, and distributors of chemicals are required to
maintain records of significant adverse reactions to health or the environment alleged
to have been caused by a substance or mixture. Records of adverse effects on the
health of employees must be retained for 30 years from the date of reporting.
Industry also must submit lists and copies of health and safety studies. Studies
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showing adverse effects previously unknown must be submitted to EPA as soon as
they are completed or discovered.
Imminent Hazards. Section 7 provides EPA authority to take emergency
action through the district courts to control a chemical substance or mixture which
presents an imminent and unreasonable risk of serious widespread injury to health
or the environment.
Relation to Other Laws. Section 9 allows EPA to refer cases of chemical
risk to other federal agencies with the authority to prevent or reduce the risk. For
statutes under EPA's jurisdiction, TSCA gives the Administrator discretion to decide
if a risk can best be handled under the authority of TSCA.
Enforcement and Judicial Review. Section 11 authorizes EPA to inspect
any facilities subject to TSCA requirements and to issue subpoenas requiring
attendance and testimony of witnesses, production of reports and documents, answers
to questions and other necessary information. Section 13 mandates TSCA
enforcement at the national borders by the Treasury Department.
Section 15 identifies acts prohibited under TSCA, while Section 16 describes
penalties for acts violating these prohibitions, as well as recourse available to anyone
accused of such violations. Section 16 authorizes civil penalties, not to exceed
$25,000 per violation per day, and affords the defendant an opportunity to request a
hearing before an order is issued and to petition for judicial review of an order after
it is issued. Criminal penalties also are authorized for willful violations. Section 17
provides jurisdiction to U.S. district courts in civil actions to enforce TSCA Section
15 by restraining or compelling actions that violate or comply with it, respectively.
Chemicals may be seized and condemned if their manufacture, processing, or
distribution violated the act.
Section 19 authorizes any person to file a petition for judicial review of
specified rules within 60 days of issuance under TSCA. The court is directed to set
aside specified rules if they are not supported by substantial evidence in the
rulemaking record taken as a whole.
Section 20 authorizes civil suits by any person against any person in violation
of the act. It also authorizes suits against EPA to compel performance of
nondiscretionary actions under TSCA. Section 21 provides the public with the right
to petition for the issuance, amendment, or repeal of a rule requiring toxicity testing
of a chemical, regulation of the chemical, or reporting.
Confidential Business Information. Section 14 provides broad protection
of proprietary confidential information about chemicals in commerce. Disclosure by
EPA employees of such information generally is not permitted, except to other
federal employees, or when necessary to protect health or the environment. Data
from health and safety studies of chemicals is not protected unless its disclosure
would reveal a chemical process or chemical proportion in a mixture. Wrongful
disclosure of confidential data by federal employees is prohibited, and may result in
criminal penalties.
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Chemical Categories. Section 26 allows EPA to impose regulatory controls
on categories of chemicals, rather than on a case-by-case basis. However, EPA
cannot regulate a group merely because it is composed of new chemical substances.
State Preemption. TSCA Section 18 preempts state actions that establish or
continue in effect requirements applicable to a chemical substance or mixture that is
federally regulated under TSCA sections 5 or 6, unless the state requirement is
identical to the federal requirement, implements another federal law, or prohibits use
of the substance or mixture within the state. However, a state may ask EPA to allow
a state requirement that provides a significantly higher degree of protection from risk
than does the federal requirement.
Other Provisions. TSCA Section 10 directs EPA to conduct and coordinate
among federal agencies research, development, and monitoring that is necessary to
the purposes of the act.
Section 12 excludes chemical products manufactured for export from TSCA
requirements except for reporting and record keeping requirements in Section 8.
Section 22 waives compliance when in the interest of national defense.
Section 23 provides protection of employees who assist in carrying out the
provisions of the act (i.e., "whistle-blowers").
The potential effects of TSCA rules on employment must be monitored by EPA,
according to Section 24.
Section 25 mandates study of the need for indemnification of people affected
by federal laws administered by EPA and of the feasibility of establishing a standard
classification system for chemical substances and of storing and retrieving
information about them.
Section 26 authorizes data sharing and cooperative action to facilitate TSCA
implementation between EPA and other federal agencies. It also authorizes
collection of fees for EPA processing of data submitted in response to an order under
Section 4 or 5. EPA is directed to establish an office to assist the regulated
community. The agency also must establish a procedure to ensure disclosure of
financial interests in the regulated community by EPA employees. Final orders
issued under TSCA must contain a statement of basis and purpose. Finally, Section
26 established within EPA a new Assistant Administrator for Toxic Substances.
TSCA Section 27 authorizes research and development of test methods for
chemicals by the Public Health Service in cooperation with EPA.
Grants to states are authorized by Section 28 to establish and operate programs
to prevent or eliminate unreasonable risks to health or the environment.
Section 29 authorized appropriations through 1983.
An annual report is mandated by Section 30.
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Title II (Asbestos in Buildings)
Growing public concern about the presence of potentially hazardous asbestos
in buildings, especially in schools, led to congressional efforts to address this
problem. Title II of TSCA, the Asbestos Hazard Emergency Response Act
(AHERA), was enacted in 1986 (P.L. 99-519) and amended in July 1988 (P.L.
100-368). It required EPA to set standards by October 1987, for responding to the
presence of asbestos in schools. The standards, set at levels adequate to protect
public health and the environment, identify appropriate response actions that depend
on the physical condition of asbestos. Schools, in turn, were required to inspect for
asbestos-containing material, and to develop and implement a plan for managing any
such material. Plans for managing asbestos were to be submitted by schools before
May 1989, and implementation was to begin by July 1989. The law contains no
deadlines for schools to complete implementation.
Title II requires asbestos contractors and analytical laboratories to be certified,
and schools to use certified persons for abatement work. Training and accreditation
requirements also apply to inspectors, contractors, and workers performing asbestos
abatement work in all public and commercial buildings. EPA may award training
grants to nonprofit organizations for asbestos health and safety programs. However,
authorization of appropriations for this grant program expired September 30, 1995.
Other Title II requirements (such as mandates that buildings be inspected for
asbestos) have not been extended to non-school buildings.
To enforce requirements, TSCA authorizes EPA to take emergency action with
respect to schools if school officials do not act to protect children. The act also
authorizes citizen action with respect to asbestos-containing material in a school and
to compel action by EPA, either through administrative petition or judicial action.
Civil penalties not to exceed $5,000 are authorized for violations such as failing to
conduct an inspection or to develop a school management plan.
Concern about how schools would pay for required actions was addressed in
separate legislation (the Asbestos School Hazard Abatement Act of 1984, or
ASHAA, P.L. 98-377). It established a program offering grants and interest-free
loans to schools with serious asbestos problems and demonstrated financial need.
Although EPA for several years did not request funding for this program, Congress
appropriated funds. Authorization of appropriations for this program expired
September 30, 1995, and Congress has not appropriated funds since FY1993; a total
of $382 million in grant and loan funds were appropriated from FY1984 through
FY1993. Repaid ASHAA loans are returned to an Asbestos Trust Fund, established
in TSCA Title II, to become a dedicated source of revenues for future asbestos
control projects.
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Title III (Radon Programs)
In October 1988 Congress amended TSCA by adding Title III -- Indoor Radon
Abatement (15 U.S.C. 2661 et seq., P.L. 100-551). The basic purpose of Title III is
to provide financial and technical assistance to the states that choose to support radon
monitoring and control; neither monitoring nor abatement of radon is required by the
act.
Title III required EPA to update its pamphlet "A Citizen's Guide to Radon," to
develop model construction standards and techniques for controlling radon levels
within new buildings, and to provide technical assistance to states. EPA is to provide
technical assistance by: establishing an information clearinghouse; publishing public
information materials; establishing a national database of radon levels detected,
organized by state; providing information to professional organizations representing
private firms involved in building design and construction; submitting to Congress
a plan for providing financial and technical assistance to states; operating cooperative
projects with states; conducting research to develop, test, and evaluate radon
measurement methods and protocols; developing and demonstrating new methods
of radon measurement and mitigation, including methods that are suitable for use in
nonresidential child care facilities; operating a voluntary program to rate radon
measurement and mitigation devices and methods and the effectiveness of private
firms and individuals offering radon-related services; and designing and
implementing training seminars. The proficiency rating program and certification for
training programs collect fees for service, and therefore, are meant to be self-
supporting, but Congress authorized $1,500,000 to be appropriated to establish these
programs. Congress authorized $3,000,000 to be appropriated for each of three years
beginning in 1989 for the other provisions of Sections 303, 304, and 305.
A matching grant program was established for the purpose of assisting states in
developing and implementing programs for radon assessment and mitigation. For
this program, $30 million was authorized to be appropriated over three years, with
funds targeted to states or projects that made efforts to ensure adoption of EPA's
model construction standards and techniques for new buildings; gave preference to
low-income persons; or addressed serious and extensive radon contamination
problems or had the potential to reduce risk or to develop innovative assessment
techniques, mitigation measures, or management approaches.
Other sections of Title III require EPA to: conduct a study to determine the
extent of radon contamination in schools; identify and list areas of the U.S. with a
high probability of having high levels of indoor radon; make grants or cooperative
agreements to establish and operate at least three regional radon training centers; and
provide guidance to federal agencies on radon measurement, risk assessment, and
remedial measures.
All authorizations for appropriations specific to this title expired September 30,
1991, although appropriations have continued.
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Title IV (Lead Exposure Reduction)
The 102nd Congress added Title IV to TSCA when it enacted the Residential
Lead-Based Paint Hazard Reduction Act of 1992 as Title X in the Housing and
Community Development Act of 1992 (P.L. 102-550). Title IV aims to accelerate
federal efforts to reduce risks to young children who daily are exposed to lead-based
paint in their homes. In addition, it is expected to stimulate development of lead
inspection and hazard abatement services in the private sector, while ensuring that
the services provided and any products employed are reliable and effective in
reducing risk. To these ends, Title IV directs EPA:
! to promulgate definitions of lead-contaminated dust, lead-
contaminated soil, and lead-based paint hazards;
! to ensure that people engaged in detection and control of lead
hazards are properly trained and that contractors are certified;
! to publish requirements for the accreditation of training programs for
workers;
! to develop criteria to evaluate the effectiveness of commercial
products used to detect or reduce risks associated with lead-based
paint;
! to establish protocols, criteria, and minimum performance standards
for laboratory analysis of lead in paint films, soil, and dust;
! to establish a program to certify laboratories as qualified to test
substances for lead content; and
! to publish and distribute to the public a list of certified or accredited
environmental sampling laboratories.
Title IV explicitly applies these requirements to federal facilities and activities that
may create a lead hazard.
In addition, Congress directed EPA to conduct a study of lead hazards due to
renovation and remodeling activities that may incidentally disturb lead-based paint.
EPA is required to promulgate guidelines for the renovation and remodeling of
buildings or other structures when these activities might create a hazard.
Title IV directs EPA to establish a clearinghouse and hotline to distribute
information about the hazards of lead-based paint, how to avoid exposure and reduce
risk, and new technologies for removing or immobilizing lead-based paint. In
addition, Congress mandated development of: a lead hazard information pamphlet;
public education and outreach activities for health professionals, the general public,
homeowners, landlords, tenants, consumers of home improvement products, the
residential real estate industry, and the home renovation industry; and information
to be distributed by retailers of home improvement products to provide consumers
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with practical information related to the hazards of renovation where lead-based paint
may be present.
Title IV authorizes states to propose programs to train and certify inspectors and
contractors engaged in the detection or control of lead-based paint hazards. States
also may develop the required informational pamphlets. TSCA requires EPA to
promulgate a model state program that may be adopted by any state. Congress gave
EPA the authority to approve or disapprove authorization for state proposals and to
provide grants for states to develop and implement authorized programs. A federal
program must be established, administered, and enforced by EPA in each state
without an authorized program.
The Department of Health and Human Services also has responsibilities under
Title IV of TSCA. It mandates a study by the Centers for Disease Prevention and
Control (CDC) and the National Institute for Environmental Health Sciences to
determine the sources of lead exposure to children who have elevated lead levels in
their bodies. The National Institute for Occupational Safety and Health is directed
to study ways of reducing occupational exposure to lead during abatement activities.
The act established a rule-making docket to ensure the availability to the general
public of all documents submitted to agencies that are relevant to regulatory
decisions pursuant to this legislation. The docket is required to include the drafts of
all proposed rules submitted by EPA to the President's Office of Management and
Budget (OMB), written comments on the drafts, and written responses to comments.
In addition, the agency must provide an explanation for any major change to a
proposed rule that appears in the final rule, and such changes may not be made based
on information not filed in the docket. Dockets are required to be established in each
EPA regional office.
Congress authorized to be appropriated "such sums as may be necessary" for
TSCA Title IV.
In addition to amending TSCA, Title X of the Housing and Community
Development Act of 1992 authorized grants to states for risk assessments and lead-
based paint removal and immobilization in private housing for low-income residents;
establishing state training, certification, or accreditation programs for inspectors and
abatement contractors; and research at the Department of Housing and Urban
Development (HUD). Authorization for appropriations for these grants expired
September 30, 1994, but appropriations have continued. Title X directed HUD to
establish guidelines for federally supported work involving risk assessments,
inspections, interim controls, and abatement of lead-based paint hazards. In addition,
the National Institute for Occupational Safety and Health (NIOSH) was provided $10
million for training people who remove or immobilize paint.
Title V (Reducing Risks in Schools)
At the end of 2007, the 110th Congress added a fifth title to TSCA, subtitled
Healthy High-Performance Schools. Enacted as Subtitle E (section 461) of Public
Law 110-140, the Energy Independence and Security Act of 2007, TSCA Title V
authorizes EPA to establish a state grant program to provide technical assistance for
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EPA programs to schools and develop and implement state school environmental
health programs. State programs must include standards for school building design,
construction, and renovation, and identify ongoing school building environmental
problems and recommended solutions. Environmental problems specifically
mentioned in the law include "contaminants, hazardous substances, and pollutant
emissions." EPA's authority to provide grants expires five years after the date of
enactment.
Title V requires the EPA Administrator, in consultation with the Secretary of
Education and the Secretary of Health and Human Services, to issue voluntary
guidelines within 18 months of Title V enactment for selecting sites for schools
(presumably new schools). The guidelines are to account for the "special
vulnerability of children to hazardous substances or pollution exposures in any case
in which the potential for contamination at a potential school site exists," modes of
transportation available to students and staff, efficient use of energy, and potential
use of a school at the site as an emergency shelter.
Title V also requires the EPA Administrator, in consultation with the Secretary
of Education and the Secretary of Health and Human Services, to issue voluntary
guidelines within two years of enactment for developing and implementing state
environmental health programs for schools. These guidelines must take into account
the findings of federal initiatives established under "relevant federal law with respect
to school facilities," including initiatives related to water and energy conservation
authorized by sections 431 through 441, and work related to high-performance green
buildings authorized by section 492 of P.L. 110-140. In particular, the guidelines
must take into account "environmental problems, contaminants, hazardous
substances, and pollutant emissions"; natural day lighting; ventilation; heating and
cooling; moisture control and mold; maintenance, cleaning, and pest control;
acoustics; and "other issues relating to the health, comfort, productivity, and
performance of occupants of the school facilities." In addition, Title V requires that
the guidelines provide "technical assistance on siting, design, management, and
operation of school facilities"; collaborate with children's environmental health
centers in school environmental investigations"; assist states and the public to better
understand and improve the environmental health of children; and take into account
"the special vulnerability of children in low-income and minority communities to
exposures from contaminants, hazardous substances, and pollutant emissions."
Several provisions in Title V refer to entities established under other sections
of the Energy Independence and Security Act of 2007 (P.L. 110-140). For example,
Title V contains directives for the Federal Director of the Office of Federal High-
Performance Green Buildings in the General Services Administration, which was
created by section 436(a). In addition, there is reference to the national
high-performance green building clearinghouse established in section 423(1) "to
carry out public outreach to inform individuals and entities of the information and
services [related to high-performance green buildings] available governmentwide."
Title V requires the Federal Director to ensure, "to the maximum extent practicable,"
that the public clearinghouse "receives and makes available information on the
exposure of children to environmental hazards in school facilities." The EPA
Administrator is directed to prepare an annual report to Congress on activities carried
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out under Title V authority, and this report also must be made available to the public
through the clearinghouse.
For the purposes of carrying out the provisions of Title V, Congress authorized
appropriations of $7 million through 2013.
Table 19. Major U.S. Code Sections of the Toxic Substances
Control Act
(codified as 15 U.S.C. 2601-2692)
Toxic Substances
Control Act
15 U.S.C. Section Title (as amended)
Subtitle I -- Control of Toxic Substances
2601 Findings, policy and intent Sec. 2
2602 Definitions Sec. 3
2603 Testing of chemical substances and mixtures Sec. 4
2604 Manufacturing and processing notices Sec. 5
2605 Regulation of hazardous chemical substances Sec. 6
and mixtures
2606 Imminent hazards Sec. 7
2607 Reporting and retention of information Sec. 8
2608 Relationship to other federal laws Sec. 9
2609 Research, development, collection, Sec. 10
dissemination, and utilization of data
2610 Inspections and subpoenas Sec. 11
2611 Exports Sec. 12
2612 Entry into customs territory of the United Sec. 13
States
2613 Disclosure of data Sec. 14
2614 Prohibited acts Sec. 15
2615 Penalties Sec. 16
2616 Specific enforcement and seizure Sec. 17
2617 Preemption Sec. 18
2618 Judicial Sec. 19
2619 Citizens' civil actions Sec. 20
2620 Citizens' petitions Sec. 21
2621 National defense waiver Sec. 22
2622 Employee protection Sec. 23
2623 Employment effects Sec. 24
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Toxic Substances
Control Act
15 U.S.C. Section Title (as amended)
2624 Studies Sec. 25
2625 Administration Sec. 26
2627 Development and evaluation of test methods Sec. 27
2628 Authorization of appropriations Sec. 28
2629 Annual report Sec. 29
Subtitle II -- Asbestos Hazard Emergency Response
2641 Congressional findings and purpose Sec. 201
2642 Definitions Sec. 202
2643 EPA regulations Sec. 203
2644 Requirements if EPA fails to promulgate Sec. 204
regulations
2645 Submission to state governor Sec. 205
2646 Contractor and laboratory accreditation Sec. 206
2647 Enforcement Sec. 207
2648 Emergency authority Sec. 208
2649 State and federal law Sec. 209
2650 Asbestos contractors and local educational Sec. 210
agencies
2651 Public protection Sec. 211
2652 Asbestos ombudsman Sec. 212
2653 EPA study of asbestos-containing material in Sec. 213
public buildings
2654 Transition rules Sec. 214
2655 Worker protection Sec. 215
Subtitle III -- Indoor Radon Abatement
2661 National goal Sec. 301
2662 Definitions Sec. 302
2663 EPA's citizen guide Sec. 303
2664 Model construction standards and techniques Sec. 304
2665 Technical assistance to states for radon Sec. 305
programs
2666 Grant Assistance to states for radon Sec. 306
programs
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Toxic Substances
Control Act
15 U.S.C. Section Title (as amended)
2667 Radon in schools Sec. 307
2668 Regional radon training centers Sec. 308
2669 Study of radon in federal buildings Sec. 309
2670 Regulations Sec. 310
2671 Additional authorizations Sec. 311
Subtitle IV -- Lead Exposure Reduction
2681 Definitions Sec. 401
2682 Lead-based paint activities training and Sec. 402
certification
2683 Identification of dangerous levels of lead Sec. 403
2684 Authorized state programs Sec. 404
2685 Lead abatement and measurement Sec. 405
2686 Lead hazard information pamphlet Sec. 406
2687 Regulations Sec. 407
2688 Control of lead-based paint at federal Sec. 408
facilities
2689 Prohibited acts Sec. 409
2690 Relationship to other federal law Sec. 410
2691 General provisions relating to administrative Sec. 411
proceedings
2692 Authorization of appropriations Sec. 412
Subtitle V -- Healthy High-Performance Schools
Grants for healthy school environments Sec. 501
Model guidelines for siting of school Sec. 502
facilities
Public outreach Sec. 503
Environmental health program Sec. 504
Authorization of appropriations Sec. 505
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Pesticide Laws32
The Environmental Protection Agency (EPA) is responsible for implementing
federal pesticide policies under two statutes: the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA),33 governing the sale and use of pesticide products within
the United States; and the Federal Food, Drug, and Cosmetic Act (FFDCA), which
limits pesticide residues on food in interstate commerce (including imports).
Pesticides are broadly defined in FIFRA Section 2(u) as chemicals and other products
used to kill, repel, or control pests. Familiar examples include pesticides used to kill
insects and weeds that can reduce the yield, and sometimes harm the quality, of
agricultural crops, ornamental plants, forests, wooden structures, and also pastures.
But the broad definition of "pesticide" in FIFRA also applies to products with less
familiar "pesticidal uses." For example, substances used to control mold, mildew,
algae, and other nuisance growths on equipment, in surface water, or on stored grains
are pesticides. The term also applies to disinfectants and sterilizing agents, animal
repellents, rat poison, and many other substances. EPA estimates that there are about
18,000 pesticide products currently in use.34 These all are regulated under FIFRA,
but approximately 5,800 pesticide products used in food production also are
regulated under the FFDCA, as discussed below.
FIFRA directs EPA to restrict the use of pesticides as necessary to prevent
unreasonable adverse effects on people and the environment, taking into account the
costs and benefits of various pesticide uses. FIFRA requires EPA to regulate the sale
and use of pesticides in the United States through registration and labeling.35 The act
prohibits sale of any pesticide in the United States unless it is registered and labeled
to indicate approved uses and restrictions. It is a violation of the law to use a
pesticide in a manner that is inconsistent with the label instructions. EPA registers
each pesticide product for each approved use. For example, a product may be
registered for use on green beans to control mites, as a seed treatment for cotton, and
as a treatment for structural cracks. In addition, FIFRA requires EPA to reregister
older pesticides based on new data that meet current regulatory and scientific
standards. Establishments that manufacture or sell pesticide products must register
with EPA. Facility managers are required to keep certain records and to allow
inspections by federal or state regulatory officials.
For the approximately 600 or more pesticides (i.e., active ingredients) registered
for use in food production, the FFDCA Section 408 authorizes EPA to establish
maximum allowable residue levels (called tolerances) that ensure that human
32
Prepared by Linda-Jo Schierow, Specialist in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division.
33
FIFRA also is known as the Act of June 25, 1947.
34
Beech, James L. U.S. EPA, Office of Pesticide Programs. Personal communication,
November 20, 2006.
35
Exceptions are noted in 40 CFR 152.20, 152.25, and 152.30.
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exposure to the pesticide ingredients in food and animal feed will be "safe".36 A
"safe" tolerance is defined as a level at which there is "a reasonable certainty of no
harm" from the exposure. Under FFDCA, foods with a residue of a pesticide
ingredient for which there is no tolerance established, or with a residue level
exceeding an established tolerance limit, are declared "unsafe" and "adulterated";
such foods cannot be sold in interstate commerce or imported to the United States.
Pesticides may not be registered under FIFRA for use on food unless tolerances (or
exemptions) have been established under the FFDCA.
History of Federal Pesticide Law
Tables 20 and 21 summarize the history of FIFRA and FFDCA, respectively.
FIFRA. Federal pesticide legislation was first enacted in 1910. It aimed to
reduce economic exploitation of farmers by manufacturers and distributors of
adulterated or ineffective pesticides. Congress did not address the potential risks to
human health posed by pesticide products until it enacted FIFRA in 1947. The U.S.
Department of Agriculture (USDA) was responsible for administering the pesticide
statutes during this period. However, responsibility was shifted to the EPA when that
agency was created in 1970. Broader congressional concerns about long- and short-
term toxic effects of pesticide exposure on people who applied pesticides
(applicators), wildlife, nontarget insects and birds, and on food consumers,
subsequently led to a complete revision of FIFRA in 1972. The 1972 law completely
replaced the original 1947 law, and is the basis of current federal policy. Substantial
changes were made in 1988 (P.L. 100-532), 1996 (P.L. 104-170), and 2004 (P.L.
108-199). The 1988 amendments focused on accelerating the reregistration process.
The 1996 amendments facilitated registration of pesticides for special (so-called
"minor") uses, reauthorized collection of fees to support reregistration, and required
coordination of regulations implementing FIFRA and the FFDCA. The 2004
amendments, known as the Pesticide Registration Improvement Act (PRIA),
modified the types and amounts of fees that EPA could collect to support its
activities. See Table 22 for a listing of current provisions in FIFRA.
36
Ingredients in pesticide products are categorized as active or inert. Active ingredients are
those that are intended to control the pest, while inert ingredients are used to deliver the
active ingredients effectively to the pest. Inert ingredients often are solvents or surfactants
and often comprise the bulk of the pesticide product. Some inerts are known to be toxic, and
some are known to be harmless, but EPA lists most in the category "inerts of unknown
toxicity".
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Table 20. Federal Insecticide, Fungicide, and Rodenticide Act
and Amendments
(codified generally as 7 U.S.C. 136-136y)
Year Act Public Law Number
1947 Federal Insecticide, Fungicide, and P.L. 80-104
Rodenticide Act
1964 Federal Insecticide, Fungicide, and P.L. 88-305
Rodenticide Act Amendments
1972 Federal Environmental Pesticide Control Act P.L. 92-516
1975 Federal Insecticide, Fungicide, and P.L. 94-140
Rodenticide Act Extension
1978 Federal Pesticide Act of 1978 P.L. 95-396
1980 Federal Insecticide, Fungicide and Rodenticide P.L. 96-539
Act Amendments
1988 Federal Insecticide, Fungicide, and P.L. 100-532
Rodenticide Amendments of 1988
1990 Food, Agriculture, Conservation, and P.L. 101-624
Trade Act of 1990
1991 Food, Agriculture, Conservation and Trade P.L. 102-237
Amendments of 1991
1996 Food Quality Protection Act (FQPA) of 1996 P.L. 104-170
2004 Pesticide Registration Improvement Act of P.L. 108-199
2003
Source: Congressional Research Service.
Note: The current FIFRA statute was established by P.L. 92-516, which completely replaced (by
amendment) the original 1947 legislation.
Authorization for appropriations for FIFRA expired on September 31, 1991,
although appropriations bills have continued to provide funding to implement the
law. Authority provided by FIFRA to EPA to issue and enforce regulations, is, for
the most part, permanent, and is not affected by the lack of authorization.
FFDCA. The original Federal Food, Drug, and Cosmetic Act of 1938 (FFDCA)
established the structure of the current law. With respect to food safety, it required
the Food and Drug Administration (then a part of the U.S. Department of
Agriculture) to set maximum residue levels (tolerances) for unavoidable poisonous
substances in food. Congress acted to protect consumers from pesticide residues on
food in 1954 by adding a new Section 408 to the FFDCA. It directed FDA to set
residue tolerances for all pesticides in raw agricultural commodities. Congress
expanded the requirement for tolerances in the Food Additives Amendment of 1958,
which added Section 409, directing FDA to set tolerances for food additives,
including pesticide residues in processed foods. Section 409 also forbade the addition
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to food of any additive (including pesticide residue), if it was found to be a potential
cancer-causing agent. This provision is referred to as the Delaney Clause.
In 1970, authority to establish tolerances for pesticide residues was transferred
to the newly formed EPA. FDA (now in the Department of Health and Human
Services) retained responsibility for enforcement of tolerances in food that is
imported or sold across state boundaries.
In 1996, Congress substantially revised requirements for pesticide residue
tolerance setting in the Food Quality Protection Act (FQPA). The FQPA redefined
terms so that pesticide residues in processed foods were no longer regulated as food
additives, and therefore no longer were subject to the Delaney Clause. The FQPA
also established a new safety standard of a "reasonable certainty of no harm" from
exposure to pesticides.
The Act of July 22, 1954, authorized such sums as may be necessary to carry
out this FFDCA section (21 U.S.C. 346b).
Table 21. Federal Food, Drug, and Cosmetic Act, Section 408,
and Amendments
(codified generally as 21 U.S.C.346a)
Year Act Public Law Number
1938 Federal Food, Drug, and Cosmetic Act Act of June 25, 1938
1954 Federal Food, Drug, and Cosmetic Act Act of July 22, 1954
Amendments
1958 Food Additive Amendments of 1958 P.L. 85-929
(including the Delaney Clause)
1996 Food Quality Protection Act of 1996 P.L. 104-170
Source: Congressional Research Service.
Registration of Pesticide Products
When pesticide manufacturers apply to register a pesticide active ingredient,
pesticide product, or a new use of a registered pesticide under FIFRA Section 3, EPA
requires them to submit scientific data on toxicity and behavior in the environment.
EPA may require data from any combination of more than 100 different tests,
depending on the potential toxicity of active and inert ingredients and degree of
exposure. To register a pesticide use on food, EPA also requires applicants to
identify analytical methods that can be used to test food for residues of active
ingredients, certain inert ingredients, and their breakdown products and to determine
the amount of residue that could remain on crops, as well as on (or in) food products,
assuming that the pesticide product is applied according to the manufacturers'
recommended rates and methods.
Based on the data submitted, EPA determines whether and under what
conditions the proposed pesticide use would present an unreasonable risk to human
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health or the environment. If the pesticide is proposed for use on a food crop, EPA
also determines whether a "safe" level of pesticide residue, called a "tolerance," can
be established under the Federal Food, Drug, and Cosmetic Act. A tolerance must be
established before a pesticide registration may be granted for use on food crops. If
registration is granted, the agency specifies the approved uses and conditions of use,
including safe methods of pesticide storage and disposal, which the registrant must
explain on the product label. FIFRA requires that federal regulations for pesticide
labels pre-empt state, local, and tribal regulations. Use of a pesticide product in a
manner inconsistent with its label is prohibited.
EPA may classify and register a pesticide product for general or for restricted
use. Products known as "restricted-use pesticides" are those judged to be more
dangerous to the applicator or to the environment. Such pesticides can be applied
only by people who have been trained and certified. Individual states and Indian
tribes generally are responsible for training and certifying pesticide applicators.
FIFRA Section 3 also allows "conditional," temporary registrations if (1) the
proposed pesticide ingredients and uses are substantially similar to currently
registered products and will not create additional significant environmental risks; (2)
an amendment is proposed for additional uses of a registered pesticide, and sufficient
data are submitted indicating that there is no significant additional risk; or (3) data
requirements for a new active ingredient require more time to generate than normally
allowed, and use of the pesticide during the period will not cause any unreasonable
adverse effect on the environment and will be in the public interest.
FIFRA-FFDCA Coordination
EPA has long coordinated pesticide registrations for food uses under FIFRA
with tolerance setting under the FFDCA. The Food Quality Protection Act of 1996
(FQPA; P.L. 104-170) codified this policy. Thus, if EPA revokes a residue tolerance
under FFDCA, it cancels the FIFRA pesticide registration for that food use.
Similarly, if a pesticide registration for use on a food crop is canceled, EPA also
cancels the residue tolerance for food. However, just as FIFRA allows continued use
of remaining pesticide stocks after a registration is canceled, FFDCA allows
continued commerce in commodities legally treated with a pesticide. Thus, EPA
does not immediately revoke the tolerance for the pesticide residue when it cancels
the corresponding registration.
Tolerance Setting
Any person who has registered a pesticide may petition EPA proposing
establishment of a tolerance or an exemption for that pesticide to permit its use on
food-related crops.37 Tolerance petitions must include information about pesticide
application rates, measured concentrations of pesticide residues on the food after the
pesticide has been applied according to directions on its label, and safety of pesticide
use on food crops. The FFDCA requires EPA to respond to each petition by
37
That is, use on food crops, animal feed crops, or food products directly (e.g., grains, fruits,
or vegetables after harvest).
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establishing a tolerance or exempting the pesticide from the requirement. If the
pesticide will not leave residues above an established safe level, EPA will register the
pesticide for use on that food product and set the tolerance level by issuing a
regulation. EPA tolerances for pesticide residues preempt state and local restrictions
on food, if the state and local restrictions are based on lower residue levels. States
may petition for an exception if the EPA-set residue level threatens public health.
The FFDCA, Section 408, as amended, requires EPA to assess safety in terms
of total exposure to the pesticide (that is, to the concentration of pesticide allowed by
the tolerance, together with all other dietary and non-food exposures for which there
is reliable information) as well as to other pesticides that have the same toxic effects
on people. No quantitative standard of safety is established by law, but the
Committee on Commerce (now the Committee on Energy and Commerce) noted in
its report on the bill that became the FQPA that EPA should continue setting
standards to ensure safety as it had in the past:
... the Committee expects that a tolerance will provide a `reasonable certainty of
no harm' if the Administrator determines that the aggregate exposure to the
pesticide chemical residue will be lower by an ample margin of safety than the
level at which the pesticide chemical residue will not cause or contribute to any
known or anticipated harm to human health. The Committee further expects,
based on discussions with the Environmental Protection Agency, that the
Administrator will interpret an ample margin of safety to be a 100-fold safety
factor applied to the scientifically determined `no observable effect' level when
data are extrapolated from animal studies.38
In determining a safe level, the FFDCA directs EPA to take into account many
factors, including available information on dietary exposure to pesticides among
infants and children. FQPA strictly limited the nature and influence of benefits
considered in tolerance setting under Section 408 of the FFDCA. As amended,
Section 408 allows EPA to maintain or modify existing tolerances (but not to
establish new tolerances) at higher than "safe" residue levels only if the pesticide use
avoids other greater risks to consumers, or is necessary to avoid significant disruption
in domestic production of an adequate, wholesome, and economical food supply.
Such higher tolerance levels may be set only for pesticides that are potential
carcinogens (or have some other health effect) for which there is no known level of
exposure at which no harm is anticipated (known as a non-threshold effect).
The higher tolerance level allowed for such pesticide residues must be "safe"
for infants and children, as well as with respect to health effects for which there is a
known threshold (that is, a level below which exposure is known to be harmless).
The higher cancer (or other non-threshold) risk posed by the tolerance on an annual
basis may not be more than 10 times the risk at a "safe" level of exposure and not
more than twice the risk of a "safe" level over a lifetime.
For non-threshold effects, the House Commerce Committee provided additional
guidance for establishing a level of residue that should be considered "safe."
38
U.S. House, Committee on Commerce, Food Quality Protection Act of 1996, H.Rept. 104-
669, part 2, 104th Congress, 2nd sess., 1996, p. 6.
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In the case of a nonthreshold effect which can be assessed through quantitative
risk assessment, such as a cancer effect, the Committee expects, based on its
understanding of current EPA practice, that a tolerance will be considered to
provide a `reasonable certainty of no harm' if any increase in lifetime risk, based
on quantitative risk assessment using conservative assumptions, will be no
greater than `negligible.' It is the Committee's understanding that, under current
EPA practice, ... EPA interprets a negligible risk to be a one-in-a-million lifetime
risk. The Committee expects the Administrator to continue to follow this
interpretation.39
The "safe" standard applies to both raw and processed foods, and requires EPA to
consider cumulative and aggregate exposure to pesticides in food, drinking water, air,
and consumer products. Congress directed EPA to reevaluate all existing tolerances
against this standard before August 2006.
FFDCA directs the FDA in the Department of Health and Human Services and
USDA to monitor pesticide residue levels in food in interstate commerce and to
enforce tolerances through their food inspection programs. USDA is responsible for
inspecting meat and poultry; FDA inspects all other foods. States also may monitor
pesticide residues in food sold within their jurisdictions.
Public Disclosure, Exclusive Use, and Trade Secrets
FIFRA Section 3 directs EPA to make the data submitted by the applicant for
pesticide registration publicly available within 30 days after a registration is granted.
However, applicants may claim certain data are protected as trade secrets under
FIFRA, Section 10. If EPA agrees that the data are protected, the agency must
withhold those data from the public, unless the data pertain to the health effects or
environmental fate or effects of the pesticide ingredients. Information may be
protected if it qualifies as a trade secret and reveals (1) manufacturing processes; (2)
details of methods for testing, detecting, or measuring amounts of inert ingredients;
or (3) the identity or percentage quantity of inert ingredients.
Companies sometimes seek to register a product based upon the registration of
similar products, relying upon the data provided by the original registrant that are
publicly released. This is allowed. However, Section 3 of FIFRA provides for a 10-
year period of "exclusive use" by the registrant of data submitted in support of an
original registration or a new use. In addition, an applicant who submits any new
data in support of a registration is entitled to compensation for the cost of data
development by any subsequent applicant who supports an application with that data
within 15 years of its submission. If compensation is not jointly agreed upon by the
registrant and applicant, binding arbitration can be invoked.
Reregistration
Most pesticides currently registered in the United States are older pesticides and
were not subject to modern safety reviews. Amendments to FIFRA in 1972 directed
EPA to "reregister" approximately 35,000 older products, in order to assess their
39
Ibid.
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safety in light of current standards. The task of reregistering older pesticides has
been streamlined by reviewing groupings of products having the same active
ingredients, on a generic instead of individual product basis. For food-use pesticides,
EPA evaluated a pesticide's eligibility for reregistration at the same time the agency
reassessed the tolerance for that pesticide under the FFDCA. The FQPA required
EPA to reassess pesticides posing the greatest risks first. Many of the 35,000
pesticide products were not reviewed and their registrations were canceled, because
registrants did not request reregistration. At least 14,000 products are no longer in
use. Nevertheless, the task for registrants and EPA was immense and costly.
To accelerate the process of reregistration, Congress, in 1988 amendments to
FIFRA, imposed a 10-year reregistration schedule. To help pay for the additional
costs of the accelerated process, Congress directed EPA to require registrants to pay
reregistration and annual registration maintenance fees on pesticide ingredients and
products. The 1996 amendments to FIFRA extended EPA's authority to collect
maintenance fees through FY2001. Exemptions from, or reductions in, fees were
allowed for minor-use pesticides, public health pesticides, and small business
registrants. Congress extended authority for fees annually through appropriations
legislation after FY2001, until the omnibus appropriations legislation signed January
23, 2004 (P.L. 108-199), modified the types and amounts of fees that EPA could
collect, potentially through FY2008.
The 2004 FIFRA amendments (PRIA) reauthorized collection of annual
"maintenance" fees to support registration, designated a portion of those fees for the
review of inert ingredients, and extended the deadline for completion of
reregistration. PRIA directed EPA to complete Reregistration Eligibility Decisions
(REDs) for pesticides with food uses/tolerances by August 3, 2006, and to complete
REDs for all remaining non-food use pesticides by October 3, 2008. The
reregistration process will continue for several years after that date, as explained on
the EPA reregistration website:
After EPA has issued a RED and declared a pesticide eligible for reregistration,
individual end-use products that contain the pesticide active ingredient still must
be reregistered. Through this concluding part of the process, known as "product
reregistration," the Agency makes sure that the risk reduction measures called for
in REDs are reflected on individual pesticide product labels. In some cases, the
Agency uses Memoranda of Agreement or other measures to include risk
reduction measures on pesticide labels sooner, before product reregistration is
completed. EPA plans to complete the last product reregistration decisions
several years after the last REDs are signed.40
Special Review
EPA continues to evaluate the safety of pesticides after they are registered as
new information becomes available. FIFRA requires registrants to report promptly
any new evidence of adverse effects from pesticide exposure. If evidence indicates
that a registered pesticide may pose an unreasonable risk, EPA may initiate a special
40
EPA. Pesticide Reregistration Facts. October 26, 2006. See [http://www.epa.gov/
oppsrrd1/reregistration/reregistration_facts.htm].
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review of available information to reevaluate the risks and benefits of each registered
use. FIFRA also authorizes EPA to require registrants to conduct new studies to fill
gaps in scientific understanding to assist risk assessments. As a result of a special
review EPA may conclude that registration is adequate, needs amendment, or should
be canceled.
Canceling or Suspending a Registration
If a special review or reregistration evaluation finds that a registered use may
cause "unreasonable adverse effects," EPA may amend or cancel the registration.41
FIFRA also allows registrants to request cancellation or amendment of a registration
to terminate selected pesticide uses. Requesting voluntary cancellation sometimes
reflects a registrant's conclusion that the cost of additional studies is not worth the
expected benefit (that is, profit) from sales if the registration would be maintained.
If a registration is canceled for one or more uses of a pesticide, FIFRA does not
permit it to be sold or distributed for those uses in the United States, although for a
specified period of time, U.S. farmers may use remaining stocks, and commerce may
continue for commodities that were legally treated with the pesticide. FIFRA allows
registrants to appeal an EPA decision to cancel a registration. An appeal initiates a
lengthy review process during which the product may continue to be marketed.
However, if there is threat of an "imminent hazard" during the time required to
cancel a registration, FIFRA authorizes EPA to suspend registration. Suspension
orders, which also may be appealed, stop sales and use of the pesticide. In the event
of suspension and cancellation, FIFRA Section 15 directs EPA to request an
appropriation from Congress to compensate anyone who owned any of the pesticide
and suffered any loss due to the suspension or cancellation. The registrant of the
suspended and canceled product is responsible, however, for all of the transportation
and disposal costs, and most storage costs.
Use of Unregistered Pesticides
FIFRA also allows for unregistered use of pesticide products in special
circumstances. Section 5 allows experimental use permits for purposes of research
and to collect data needed to register a pesticide. Section 18 allows "emergency
exemptions" from the provisions of FIFRA to be granted to federal or state agencies,
for example, if there is a virulent outbreak of a disease that cannot be controlled by
registered products. In addition, Section 24(c) permits states to allow additional uses
of a federally registered product to meet "special local needs."
41
Registrations also may be canceled under other conditions, for example, if data are not
submitted in response to EPA's request for additional information to maintain a registration,
or if a registrant fails to pay the maintenance fee.
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Enforcement
Generally, EPA has the authority to enforce FIFRA requirements. However,
FIFRA Section 26 gives primary enforcement authority for pesticide use under
FIFRA to states that have adequate enforcement procedures, laws, and regulations,
including inspection authority. EPA is authorized by Section 27 to rescind a state's
primary enforcement responsibility if it is not being carried out.
FIFRA Section 11 authorizes EPA to form cooperative agreements with states,
giving them the responsibility for training and certifying applicators of restricted use
pesticides. States also may initially review and give preliminary approval to
applications for emergency exemptions and special local needs registrations,
(although under some conditions FIFRA allows EPA later to deny state-approved
applications).
Section 9 authorizes inspections by EPA and authorized state officials of
pesticide products where they are stored for distribution or sale. Section 13
authorizes EPA to issue orders to stop sales and to seize supplies of pesticide
products. Civil and criminal penalties for violations of FIFRA are established in
Section 14, while Section 15 provides indemnity payments for end users, distributors,
and dealers of pesticides when registrations are suspended and canceled.
Federal district courts are authorized in Section 16 to review EPA final actions
and omissions when action is not discretionary. People adversely affected by an EPA
order may file for judicial review of the order following a hearing. But, FIFRA does
not authorize citizen suits against violators.
Export of Unregistered Pesticides
FIFRA does not give EPA the authority to regulate domestic production for
export of unregistered pesticides, even if U.S. registration has been canceled for
health or environmental reasons. However, FIFRA does require exporters to prepare
or pack pesticides as specified by the purchaser and in accord with some of the
FIFRA labeling provisions. For example, exporters must translate warning
information into the language of the destination. FIFRA also requires exporters of
unregistered pesticides to obtain the purchaser's signature on a statement
acknowledging that the pesticide is unregistered and cannot be sold in the United
States. EPA is required to notify governments of other countries and international
agencies whenever a registration, cancellation, or suspension of any pesticide
becomes or ceases to be effective in the United States.
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Table 22. Major U.S. Code Sections of the Federal Insecticide,
Fungicide, and Rodenticide Act
(codified generally as 7 U.S.C. 136-136y)
Federal
Insecticide,
Fungicide, and
Rodenticide Act
7 U.S.C. Section Title (as amended)
Short title and table of contents Sec. 1
136 Definitions Sec. 2
136a Registration of pesticides Sec. 3
136a-1 Reregistration of registered pesticides Sec. 4
136c Experimental use permits Sec. 5
136d Administration review; suspension Sec. 6
136e Registration of establishments Sec. 7
136f Books and records Sec. 8
136g Inspection of establishments Sec. 9
136h Protection of trade secrets and other information Sec. 10
136i Restricted use pesticides; applicators Sec. 11
136j Unlawful acts Sec. 12
136k Stop sale, use, removal, and seizure Sec. 13
136l Penalties Sec. 14
136m Indemnities Sec. 15
136n Administrative procedure; judicial review Sec. 16
136o Imports and exports Sec. 17
136p Exemption of federal and state agencies Sec. 18
136q Storage, disposal, transportation, and recall Sec. 19
136r Research and monitoring Sec. 20
136s Solicitation of comments; notice of public hearings Sec. 21
136t Delegation and cooperation Sec. 22
136u State cooperation, aid, training Sec. 23
136v Authority of states Sec. 24
136w Authority of Administrator Sec. 25
136w-1 State primary enforcement responsibility Sec. 26
136w-2 Failure by the state to assure enforcement of state Sec. 27
pesticide use regulations
136w-3 Identification of pests; cooperation with Department of Sec. 28
Agriculture's program
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Federal
Insecticide,
Fungicide, and
Rodenticide Act
7 U.S.C. Section Title (as amended)
136w-4 Annual report Sec. 29
136w-5 Minimum requirements for training of maintenance Sec. 30
applicators and service technicians
136w-6 Environmental Protection Agency minor use program Sec. 31
136w-7 Department of Agriculture minor use program Sec. 32
136w-8 Pesticide Registration Service Fees Sec. 33
136x Severability Sec. 34
136y Authorization of Appropriations Sec. 35
Notes: This table shows only the major code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code.
Table 23. Major U.S. Code Sections of the Federal Food, Drug, and
Cosmetic Act Related to Pesticides
(codified generally as 21 U.S.C. 321-346a)
Federal Food,
Drug, and
21 U.S.C. Section Title Cosmetic Act
Chapter II -- Definitions
321 Definitions Sec. 201
Chapter III -- Prohibited Acts and Penalties
331 Prohibited acts Sec. 301
332 Injunction proceedings Sec. 302
333 Penalties Sec. 303
334 Seizure Sec. 304
Chapter IV -- Food
342 Adulterated food Sec. 402
343 Misbranded food Sec. 403
346 Tolerances for poisonous ingredients in food Sec. 406
346a Tolerances and exemptions for pesticide chemical Sec. 408
residues
346a(a) Requirement for tolerance or exemption Sec. 408(a)
346a(b) Authority and standard for tolerance Sec. 408(b)
346a(c) Authority and standard for exemptions Sec. 408(c)
346a(d) Petition for tolerance or exemption Sec. 408(d)
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Federal Food,
Drug, and
21 U.S.C. Section Title Cosmetic Act
346a(e) Action on Administrator's own initiative Sec. 408(e)
346a(f) Special data requirements Sec. 408(f)
346a(g) Effective data, objections, hearings, and administrative Sec. 408(g)
review
346a(h) Judicial review Sec. 408(h)
346a(i) Confidentiality and use of data Sec. 408(i)
346a(j) Status of previously issued regulations Sec. 408(j)
346a(k) Transitional provision Sec. 408(k)
346a(l) Harmonization with action under other laws Sec. 408(l)
346a(m) Fees Sec. 408(m)
346a(n) National uniformity of tolerances Sec. 408(n)
346a(o) Consumer right to know Sec. 408(o)
346a(p) Estrogenic substances screening program Sec. 408(p)
346a(q) Schedule for review Sec. 408(q)
346a(r) Temporary tolerance or exemption Sec. 408(r)
346a(s) Savings clause Sec. 408(s)
Note: This table shows only the major code sections. For more detail and to determine when a
section was added, consult the official printed version of the U.S. Code.
National Environmental Policy Act42
Introduction
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.) was
enacted in 1969 and signed into law by President Nixon on January 1, 1970 (P.L. 91-
190). NEPA was the first of several major environmental laws enacted in the 1970s.
Under Title I of the act, Congress declared a national policy that stated, in part, that
it is "the continuing policy of the Federal government...to use all practicable means
and measures...to create and maintain conditions under which man and nature can
exist in productive harmony, and fulfill the social, economic, and other requirements
of present and future generations of Americans." NEPA also created the Council on
Environmental Quality (CEQ) in the Executive Office of the President. Among other
duties, CEQ was required to develop and recommend to the President national
42
Prepared by Linda Luther, Analyst in Environmental Policy, Environmental Policy
Section, Resources, Science, and Industry Division, and H. Steven Hughes, Analyst in
Environmental Policy, Natural Resources Section, Resources, Science, and Industry
Division.
CRS-114
policies to foster and promote the improvement of environmental quality. In the
1970's, CEQ played a key role in shaping regulations for implementation of NEPA.
One of the best-known elements of NEPA is its directive to federal agencies to
incorporate environmental considerations in their planning and decision-making
through a systematic interdisciplinary approach. Specifically, NEPA requires all
federal agencies to prepare a detailed statement of the environmental impact of and
alternatives to major federal actions significantly affecting the environment. The
"detailed statement" was subsequently referred to as an environmental impact
statement (EIS).43
Judicial interpretation of NEPA ultimately determined that the act did not
require agencies to elevate environmental concerns over other considerations. Rather,
the courts determined, NEPA requires only that the agency take a "hard look" at a
project's environmental consequences before taking action. If the adverse
environmental effects of the proposed action are adequately identified and evaluated,
the agency is not constrained by NEPA from deciding that other benefits outweigh
the environmental costs.
In 1978, CEQ formally promulgated regulations, binding on all federal agencies,
implementing NEPA's provisions. In addition to CEQ, Congress authorized EPA to
perform certain duties to ensure the proper implementation of NEPA's EIS
requirements (discussed below).
Table 24. National Environmental Policy Act and Amendments
(42 U.S.C. 4321-4347)
Year Act Public Law Number
1970 National Environmental Policy Act P.L. 91-190
1971 Clean Air Act Amendments of 1970 (� 309) P.L. 91-604
[Did not amend NEPA, but specified EPA
responsibilities in the NEPA process]
1975 Authorizations -- Office of Environmental Quality P.L. 94-52
1975 National Environmental Policy Act P.L. 94-83
[Administrative Delegation to State] Amendment
The NEPA Process
NEPA applies to all major federal actions, including projects and programs
entirely or partly funded, assisted, conducted, regulated, or approved by federal
agencies. To ensure that environmental impacts of those actions are considered
before final decisions are made, NEPA requires the preparation of an environmental
impact statement (EIS) for any major federal action significantly affecting the quality
of the human environment. An EIS is a full disclosure document that provides a
description of the proposed action, and the existing environment, as well as analysis
43
42 U.S.C. � 4332(2)(C).
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of the anticipated beneficial and adverse environmental effects of all reasonable
alternatives.44
As required under CEQ's regulations, some level of analysis is also required
when environmental impacts are uncertain or not significant. Projects for which it
is not initially clear whether impacts will be significant require the preparation of an
environmental assessment (EA). An EA is a concise public document that analyzes
the environmental impacts of a proposed federal action and provides sufficient
evidence to determine the level of significance of the impacts.45 It is followed by
either a Finding of No Significant Impact (FONSI) or a decision to prepare an EIS.
Categorical exclusions are actions that do not individually or cumulatively have a
significant social, economic, or environmental effect, and which the applicable
agency has determined from past experience have no significant impact. Such actions
are excluded from the requirement to prepare an EIS or EA.
Prior to completing the appropriate NEPA documentation, the responsible
federal official (the "lead agency") is required to consult with and obtain the
comments of any federal agency which has jurisdiction by law or special expertise
(a "cooperating agency") with respect to any environmental impact involved. For any
given federal action, compliance with a wide variety of legislative and regulatory
requirements, enforceable by multiple agencies, may be required. NEPA
documentation may be required to document compliance with all applicable
environmental laws, executive orders, and other related requirements. Most agencies
use the NEPA process as a means of coordinating or demonstrating compliance with
all applicable environmental requirements. In this capacity NEPA may function as
an "umbrella statute," meaning any study, review, or consultation required by law,
that is related to the environment, may be conducted within the framework of the
NEPA process.
Complex federal projects such as highway construction projects, forest thinning,
or oil and gas development projects, may trigger compliance with literally dozens of
federal, state, tribal, and local environmental statutory and regulatory requirements.
These, in turn, require the participation or input of possibly dozens of agencies.
Some Members of Congress have expressed concerns that the interagency
coordination required of such projects is often inefficient, leading to unnecessary
delays in needed projects. Improved interagency cooperation has been identified by
some Members of Congress as a critical element to the success of streamlining the
NEPA process.46 The CEQ's regulations implementing NEPA currently include a
variety of provisions intended to expedite the compliance process. In particular,
CEQ's regulations specify procedures to reduce paperwork and delay. The
regulations also direct agencies to efficiently facilitate the process of complying with
multiple statutory and regulatory requirements. To do so, the regulations direct
agencies, among other requirements to:
44
For more information, see CRS Report RL33152, The National Environmental Policy Act:
Background and Implementation, by Linda Luther.
45
40 C.F.R. � 1508.9.
46
For more information see CRS Report RL33267, The National Environmental Policy Act:
Streamlining NEPA, by Linda Luther.
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! Integrate NEPA's requirements with other required planning and
environmental review procedures.
! Prepare environmental reviews concurrently with one another, rather
than consecutively.
! Establish appropriate time limits on EISs.
! Integrate the NEPA process into early planning and prepare the EIS
early in the process.
! Emphasize interagency cooperation before the EIS is prepared,
rather than submission of adversary comments on a completed
document.
! Insure the swift and fair resolution of lead agency disputes.47
Environmental Protection Agency Functions Under NEPA
NEPA is broad, with requirements potentially affecting all federal agencies.
Also, EPA is not authorized to enforce NEPA's requirements; instead, federal
agencies are required to implement its requirements themselves.48 However, EPA
does have two distinct roles in the NEPA process. The first regards its duty, under
Section 309 of the Clean Air Act, to review and comment publicly on the
environmental impacts of proposed federal activities, including those for which an
EIS is prepared. After conducting its review, EPA rates two elements of the action:
the adequacy of the EIS and the environmental impact of the action.49 The EIS may
be rated "adequate," "needs more information," or "inadequate." The lead agency
would be required to respond appropriately depending upon EPA's rating. With
regard to rating the environmental impacts of an action, EPA would rate a project in
one of the following four ways: lack of objections, environmental concerns,
environmental objections, environmentally unsatisfactory. If EPA determines that the
action is environmentally unsatisfactory, it is required to refer the matter to CEQ to
resolve any interagency dispute.
EPA's second duty is an administrative one, in which it carries out the
operational duties associated with the EIS filing process. In 1978, these duties were
transferred to EPA by CEQ in accordance with a Memorandum of Agreement
(MOA) entered into by EPA and CEQ. Under the terms of the MOA, EPA's Office
of Federal Activities is designated the official recipient of all EISs prepared by
federal agencies. EPA maintains a national EIS filing system. By maintaining the
system, EPA facilitates public access to EISs by publishing weekly notices in the
Federal Register of EISs available for public review, along with summaries of EPA's
comments.
47
40 C.F.R. �� 1500.2 and 1500.4-1500.5
48
In CEQ's regulations (40 C.F.R. � 1507.3), federal agencies were required to prepare
their own NEPA procedures that address that agency's compliance in relation to its
particular mission.
49
An explanation of EPA's "Environmental Impact Statement (EIS) Rating System
Criteria" is available online at [http://www.epa.gov/compliance/nepa/comments/ratings.
html].
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Apart from these duties, like any other federal agency, EPA may participate in
the NEPA process as a lead agency when it is sponsoring its own federal actions.
Currently, NEPA documentation is required of EPA for research and development
activities, construction of EPA facilities, wastewater treatment plant construction
under the Clean Water Act, EPA-issued National Pollutant Discharge Elimination
System (NPDES) permits for new sources, 50 and for certain projects funded through
EPA annual Appropriations Acts. Legislation has specifically limited EPA's
requirement to comply with NEPA for certain actions. For example, Section 7(c) of
the Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C.
793(c)(1)) exempts actions taken under the Clean Air Act from the requirements of
NEPA. EPA is also exempted from the procedural requirements of environmental
laws, including NEPA, for response actions pursuant to requirements under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA). Courts also have consistently recognized that EPA procedures or
environmental reviews under enabling legislation are functionally equivalent to the
NEPA process and thus exempt from the procedural requirements in NEPA.
Table 25. Major U.S. Code Sections of the
National Environmental Policy Act
(as amended)
(42 U.S.C. 4321-4347)
National
Environmental
42 U.S.C. Section Title Policy Act
4321 Congressional Declaration of Purpose
Subchapter I -- Policies and Goals
4331 Congressional declaration of National Sec. 101
Environmental Policy Act
4332 Cooperation of agencies; reports; availability of Sec. 102
information; recommendations
4333 Conformity of administrative procedures to Sec. 103
National Environmental Policy Act
4334 Other statutory obligations of agencies Sec. 104
4335 Efforts supplemental to existing authorities Sec. 105
Subchapter II -- Council on Environmental Quality
4341 Reports to Congress; recommendations for Sec. 201
legislation
50
Such permits are more likely to be issued by states authorized to implement provisions
of the Clean Water Act, and hence would not be considered "federal actions" subject to
NEPA compliance. Section 511(c) of the Clean Water Act exempts other EPA actions
under the law from the requirements of NEPA.
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National
Environmental
42 U.S.C. Section Title Policy Act
4342 Establishment; membership; chairman; Sec. 202
appointments
4343 Establishment of personnel, experts and Sec. 203
consultants
4344 Duties and functions Sec. 204
4345 Consultation with Citizen Advisory Committee Sec. 205
on Environmental Quality
4346a Tenure and compensation of members Sec. 206
Travel reimbursement by private organizations Sec. 207
and Federal, State and Local Governments
4346b Expenditure in support of international activities Sec. 208
4347 Authorization of appropriations Sec. 208
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