Chapter 11 Environmental Law 11.1 Storage and Use of Hazardous or Toxic Materials Compliance and Reporting Requirements Environmental protection began with controls of releases to water and the air, through smoke stacks and sewer pipes. These “end of pipe” controls began the steady increase of environmental regulations that makes it imperative that individuals and companies be aware of the controls on the development and manufacturing processes directly, irrespective of the question of whether or not the release of pollutants into the air, water or ground violates an applicable requirement. There are several diﬀerent requirements for reporting the use of hazardous and toxic substances used in manufacturing processes and facilities. These requirements include speciﬁcations for the manner in which materials are stored, and reporting obligations when it is discovered that a chemical may pose a risk to human health, safety or the environment, no matter whether or not the injury has occurred or is imminently likely to occur. Consider the previous example I gave during the lecture on safety, Lecture 11, wherein tanks of acetone are stored together in a factory manufacturing nail polish. These acetone tanks must be wired together electrically so that no spark be transmitted from tank to tank and cause a ﬁre. 145 146 CHAPTER 11. ENVIRONMENTAL LAW 11.2 Emergency Planning and the Commu- nity Right to Know Act of 1986 Title III of Super Fund Amendments and Reauthorization Act (SARA) is a self-implementing law entitled the Emergency Planning and Community Right to Know Act of 1986, which was enacted largely in response to the December 1984 release of methyl isocyanide in Bhopal, India, and in response to a similar release in August 1985 in West Virginia. The Act has four major sections which include emergency planning requirements, emergency release notiﬁcations, community right to know reporting requirements, and toxic chemical release inventory reporting. From the heading of these sections, you can tell the detail and the importance which is placed on emergency planning and community right to know policies where there is a chance that a hazardous or toxic substance may cause an environmental problem. These laws also provide for protection of trade secrets, for responses to public requests for information, and include enforcement and penalty pro- visions for failure to comply. The ultimate purpose of the Act is to require industrial facilities to report and disclose how they handle and use hazardous and toxic chemicals, and make this report available to the community in which they are located. Further, the Act was designed to create a working partnership between industry, business, state and local governmental oﬃ- cials and interested local citizens. However, this working partnership does not come inexpensively. Early estimates by at least one occupational health and safety trade group are that it would be required to invest more 13 million person-hours of time to ﬁll out the required forms at an approximate cost of $4 billion. Also if compliance with the Act is unsatisfactory, the EPA (Envi- ronmental Protection Agency) is authorized to impose civil, administrative, and criminal penalties ranging from $10,000 to $75,000 per day. 11.3 State and Local Emergency Planning The emergency planning provisions of the Emergency Planning and Commu- nity Right to Know Act of 1986 (EPCRA) require state and local govern- ments to develop emergency response and preparedness capabilities by co- ordinating with the local regulated community. Each state has to designate a State Emergency Response Commission (SERC) to oversee the emergency planning process. Each SERC must also designate local emergency planning 11.3. STATE AND LOCAL EMERGENCY PLANNING 147 districts and appoint Local Emergency Planning Committees (LEPC) for each district. Each LEPCs primary responsibility is to develop an emergency response plan and review it at least once per year. Some of the ingredients in these plans must be the identiﬁcation of locations at which hazardous chemicals are present, methods for determining the occurrence of a spill of toxic or hazardous chemicals, the probable aﬀected area and population that could be aﬀected from a spill, evacuation plans, and plans for implementing emergency response measures. 11.3.1 Applicability Any facility that has at present on its premises any chemicals listed on the list of Extremely Hazardous Substances (EHS) must ﬁle an appropriate re- port. It must ﬁrst be determined whether an extremely hazardous substance is present in the facility in an amount equal to or greater than a designated Threshold Planning Quantity (TPQ), or whether the facility has been desig- nated by the governor of the state as being required to report anyway. The facility must calculate the total amount (such as weight in pounds) of each substance present at the facility at any given time. That sum can then be compared to the TPQ listed in Title IIIs list of lists. 11.3.2 Content of Report Within sixty days after beginning to have present any of the extremely haz- ardous substances in an amount equal to or excess of the amount on the list, all facilities must notify the state and local EPC. The facility owners are also required to submit updated information to the appropriate planning committee when any relevant changes in the facility occur or are expected to occur. 11.3.3 Emergency Notiﬁcation The law also compels the disclosure of the release of any listed hazardous substance. Facilities “at which a hazardous chemical is produced, used or stored” that experience a release of a regulated substance must immediately notify the local emergency planning committees and the state emergency response commissions that are likely to be aﬀected. Reporting is required for 148 CHAPTER 11. ENVIRONMENTAL LAW the release of a listed substance which exceeds the reportable quantity for that substance. In addition, in the event of a release of an extremely hazardous substance or a release of a substance subject to the emergency notiﬁcation requirements, immediate notiﬁcation to the community response coordinator is required. Also, there are certain non-stationary transportation vehicles which are also considered facilities, which are likewise required to report releases. Not all releases must be subject to notiﬁcation. The exempted releases include, amongst others, continuous releases, the disposal of hazardous sub- stances at an approved disposal facility, and releases from a facility that neither purchases, uses or stores hazardous chemicals. 11.3.4 Report Content In the event of the release of a covered chemical substance exceeding a re- portable quantity, the facility must submit an emergency notiﬁcation, which can been made by telephone, radio, or in person initially. This report must include the chemical name, the estimate of the released quantity, the time and duration of the release, where the release occurred, and to what media (i.e., either the ground, water or air), and any known or anticipated health risks associated with the chemical and/or the release. 11.4 Chemical Inventory Reporting Certain portions of the SERA Act establish an ongoing mechanism to keep the government and community aware of the manufacture, importation, pro- cessing and use of hazardous chemicals in a nearby facility. The term “haz- ardous chemical” is deﬁned as any element, chemical compound, or mixture of elements or compounds that is a physical or health hazard. The Act con- tains threshold quantity requirements and because of the broad deﬁnition of a hazardous chemical, reporting requirements can include manufacturers, importers, distributors and any downstream user who receives a shipment of hazardous chemicals. The Act also contains several exemptions from reporting requirements such as tobacco products, wood products, consumer products and food, drugs and cosmetics. 11.4. CHEMICAL INVENTORY REPORTING 149 11.4.1 Toxic Chemical Release Reporting The EPA has established an inventory of routine toxic chemical emissions from certain facilities. Speciﬁed facilities must complete a toxic chemical release inventory form for speciﬁed chemicals and submit it to the EPA and to appropriate state emergency response oﬃcials. The purpose of this legislation is to compile data on releases of toxic chemicals in an eﬀort to assist in the research and development of regulations, guidelines and standards to reduce the impact of such releases. 11.4.2 Applicability On December 1, 1993, the EPA added 11 hydrochloroﬂurocarbons, 21 other chemicals and two chemical categories to the toxic release inventory because of their potential ozone depleting and adverse health eﬀects. In November 1994, EPA oﬃcials also added many additional chemicals to the list which were classiﬁed as “probable human carcinogens”. Also, additional chemicals added to the list include polycyclic aromatic compounds, synthetic mineral ﬁbers, chlorinated paraﬃns, nicotine, and strychnine. The EPA has also exempted certain toxic chemicals from release report- ing. These include “articles” such as manufactured items which are formed to a speciﬁc design, which have an end use function dependent on their dis- posal, or which do not normally release toxic chemicals. Also exempted are toxic chemicals used as structural components of a facility, used in routine janitorial and maintenance, used by personnel such as in food, drugs and cosmetics, and used in non-contact cooling water or in process water. 11.4.3 Trade Secrets As a result of the conﬁdential nature of much of the information that is required to be disclosed under the EPCR Act of 1986, the law provides for the conﬁdential treatment of certain information. However, one must be careful in reporting since the information submitted under the Act becomes a matter of public record, absent a designation by the facilitys owner of trade secrecy. Such information for which a facility may wish to pursue trade secrecy status includes: 1. The speciﬁc chemical identity of an extremely hazardous substance; 150 CHAPTER 11. ENVIRONMENTAL LAW 2. The chemical identity of a hazardous substance; and 3. The chemical identity of a toxic chemical. To assert a trade secret claim, a facility must submit two separate ﬁl- ings. The ﬁrst ﬁling contains the conﬁdential information. The second re- port should include only information about the generic category in which the protected chemical is classiﬁed but should exclude the conﬁdential in- formation. With the two reports, the facility must also submit an assertion of conﬁdentiality and evidence that substantiates why the withheld informa- tion complies with the trade secrecy requirements set forth in the law and in regulations. In asserting that your information is actually a trade secret, the following information should be submitted to the government: 1. The conﬁdential information must not have been previously disclosed, and must have been treated in a conﬁdential matter within the facility; 2. The information cannot be required to be disclosed under any other law; 3. There must be some indication that disclosure of the trade secret in- formation by the government agency will likely cause substantial harm to the competitive position of the facility submitting the information; and 4. The trade secret claim chemical cannot be easily discoverable through reverse engineering processes. 11.5 Toxic Substances Control Act The Toxic Substances Control Act (TSCA) was intended to allow the EPA to prohibit or signiﬁcantly regulate the use of any chemical to the extent it imposes an “unreasonable risk”. However, the EPA has seldom used its pow- ers. The TSCA regulates virtually any chemical, except pesticides, tobacco, drugs, food products, cosmetics and certain nuclear materials which are all regulated by other federal statutes, most of which preceded the environmen- tal laws. Any chemical in use that has not been authorized for that use by TSCA is essentially contraband and is subject to seizure. 11.5. TOXIC SUBSTANCES CONTROL ACT 151 TSCA requires parties engaging in commerce in a new chemical, or mak- ing a signiﬁcant new uses of an existing chemical to notify the EPA. The EPA then subsequently determines if the new chemical or new chemical use presents an unreasonable risk to the health and the environment, if testing of the new chemical must be performed. 11.5.1 TSCA Inventory The EPAs initial list of regulated chemicals was compiled from informa- tion submitted by chemical manufacturers, and contained more than 62,000 chemicals and chemical groups. By 1999, approximately 23,000 additional chemicals have been added to the original data base. While the EPAs primary focus has been on new chemicals and new uses, the TSCA does authorize the EPA to require testing of its inventoried chem- icals. As a result, the EPA has instituted controls on a variety of substances that are on the original inventory. 11.5.2 Pre-Manufacture Notices (PMNs) A facility planning to import, manufacture or process a new chemical sub- stance must give the EPA at least 90 days notice prior to manufacture. This gives the EPA a opportunity to determine whether a chemical, or the chem- ical use, is new. There are two classes of chemicals. Class I consists of chemicals whose composition can be represented by a unique chemical structural diagram. The EPA then compares that substance with the molecular formulas and chemical structures of chemicals in the TSCAs inventory to determine whether or not the similarity in structures of the chemical compound will lead to the conclusion that there may be harmful eﬀects. Class II consists of chemicals whose composition cannot be identiﬁed by a unique molecular formula or chemical structure diagram. For these chemicals in Class II a new substance determination is made by comparing molecular formula and chemical structure information with similar TSCA inventory information and by comparing reactant and reaction information with similar information maintained on ﬁle by the EPA. Once a new substance determination is made, a facility must submit a pre-manufacture notice or PMN. The PMNs provide a variety of information to the EPA such as: 152 CHAPTER 11. ENVIRONMENTAL LAW 1. A description of the substance; 2. The facilitys plan for production of the chemical substance; 3. The intended use of the substance; and 4. The potential health and environmental eﬀects which are known. 11.5.3 Special Issues for Polymers The issues relating to TSCA inventory for polymers are extremely complex. However, we will attempt to touch the tip of the iceberg here. In general, polymers are high molecular weight substances with repeating subunits. The subunits are known as monomers. Since polymers do not tend to bio-accumulate, they are relatively non-toxic. This led the EPA to promul- gate a polymer exemption rule. To qualify for the exemption the substance must be composed of a simple weight majority of polymer molecules. In addi- tion, the substance must have a numbered-average molecular weight greater than 1,000, or be a polyester polymer manufactured from certain reactants. The exemption also lists certain polymers that are excluded from the poly- mer exemption. Companies that manufacture, process, or import polymers must periodically check on the EPAs most recent rule-making eﬀorts in this area. 11.5.4 Signiﬁcant New Use Rules In addition to requiring the submittal of pre-manufacture notices for new chemicals, the EPA can require a similar type of process for existing chem- icals. The agency requires companies to undertake this process for existing chemicals by promulgating something called a signiﬁcant new use rule. In identifying signiﬁcant new uses, the EPA must consider all relevant factors related to the chemical. These factors include the amount that will be man- ufactured, the extent to which the new use will increase human and environ- mental exposure, and the anticipated methods of manufacturing, processing, distributing and disposing of the substance in its new use. The EPA issues signiﬁcant new use rules where certain chemicals may present minimal risk when manufactured in small quantities or when used in a manner that minimizes exposure to humans or the environment. However, if increased output or a change in the intended application increases risk, the 11.5. TOXIC SUBSTANCES CONTROL ACT 153 chemical is a candidate for a signiﬁcant new use rule. Therefore a corporate environmental compliance program should identify any products in which the operation may be covered by signiﬁcant new use rules. 11.5.5 Regulation of Substances Under Section 6 of the Act If the EPA determines in a review of screening that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use or disposal of a chemical substance presents or will present an unreasonable risk of injury to health or the environment, the Agency may regulate the chemical. Having made such a determination, the EPA may invoke a variety of powers under the section of the law set forth above, which among others could completely prohibit the manufacture of the chemical or prohibit or limit certain uses. Therefore, if you someday become the manager, director, owner or super- visor of a facility whose operations fall within the scope of the Toxic Sub- stance Control Act, a compliance audit and program should be instituted, which includes at the very least the following: 1. A listing of all the substances manufactured, imported or processed by the facility; 2. A determination as to whether any of the listed substances are regu- lated under TSCA; 3. A review of the TSCA requirements for each regulated substance; and 4. A review of the TSCA practices in place to determine whether those practices comply with applicable EPA regulations. 11.5.6 Testing Requirements The EPA is authorized to set forth rules requiring that speciﬁed chemicals be tested for their eﬀects on the health of people and the environment. To establish a rule, the EPA must ﬁrst determine either (1) that a chem- ical presents an unreasonable risk of injury to the health of the environment, or (2) that the chemical is produced in substantial quantities (i.e., more than 1 million pounds per year) and they enter the environment in substantial 154 CHAPTER 11. ENVIRONMENTAL LAW quantities or result in signiﬁcant or substantial human exposure. In hope of minimizing the need for such burdensome fact ﬁnding and formal rule making, the EPA is exploring voluntary testing agreements with industry. 11.5.7 TSCA Record Retention A manufacturer of a chemical substance must maintain, for example, records of consumer allegations of personal injury, harm to health, occupational dis- ease, or injury to the environment related to such chemicals. Also, the man- ufacturer or processor must retain this type of information received from any source, such as employees or customers. Also, allegations by employees of adverse reactions must be kept on ﬁle for 30 years. All other allegations must be kept on ﬁle for ﬁve years. 11.5.8 PCB Regulation TSCA contains explicit provisions with respect to polychlorinated biphenyls (PCBs). The law prohibited the manufacture of PCBs after January 1, 1979 and prohibited their processing and distribution in commerce after July 1, 1979. Exempted are PCBs that are totally enclosed (i.e., will not be exposed to humans and the environment) and also exempted are PCBs whose manu- facturer, processing, distribution or use will present an unreasonable risk of injury to health or the environment. The EPA initially deﬁned, for exam- ple certain uses of PCBs in electrical transformers and capacitors as totally enclosed. The EPA also established a 50 PPM (parts per million) cut-oﬀ: substances containing less than 50 PPM PCBs were deemed as not presently an unreasonable risk. The totally enclosed and 50 PPM use exemptions were successfully challenged in a court case which ultimately led the EPA to promulgate a series of follow-up rules. Under the current system, PCBs are regulated for use in certain types of equipment, identiﬁcation, storage and disposal. Approval for use of these chemicals is generally not required as long as a disposal procedure conforms to EPA regulations. The EPA has also issued regulations on the use and retirement of PCB- containing transformers in or near commercial buildings. The Agency also regulates the unintended by-product manufacture of PCBs. 11.5. TOXIC SUBSTANCES CONTROL ACT 155 Given this tight control of the production and use of PCBs by the EPA, a sound corporate environmental compliance program should address the companys preview of the substances. A program should include the periodic review of the companys facilities and processes for the presence or inadvertent manufacture of PCBs. 11.5.9 Asbestos Regulation In 1989 the EPA issued a ﬁnal rule under the TSCA to phase out the use of asbestos in commercial products. The rule was staged as follows: In 1990 the felt used in construction, pipe wrap, cement sheet, ﬂoor tile, and clothing was to be phased out; In 1993 friction products, such as gaskets, clutches, automatic transmis- sion components and new brake linings were phased out; In 1996 cement pipe, corrugated paper, specialty paper, roof coatings and replacement brake linings were phased out. Therefore, if you were driving a car manufactured within the last ﬁve years, and your brakes squeak when applied, it is because asbestos could no longer be used in the manufacture of brake linings, and the brake linings had to be harder and therefore squeak when applied. At least that was the answer I received when I owned a new car with brakes that squeaked. The above phase out program was set aside in litigation against the EPA. However the EPA may attempt to revive an asbestos phase out program. Most importantly, from the prospective of a corporate environmental com- pliance program, it must be considered that the decision which eliminated the phase out program of the EPA did also uphold the ban on all future new uses of asbestos. 11.5.10 Lead Regulation The TSCA was amended in 1992 by a law entitled the Residential Lead-Based Paint Hazard Reduction Act. The title of this act tells it all. Pursuant to this new legislation of 1992, the EPA proposed rules to identify lead- based paint hazards, lead contaminated soil, and lead contaminated dust. The EPA is also authorized to propose rules on lead-based paint contractor training, the accreditation and certiﬁcation, and disclosure requirements for the transfer and renovation of housing. Under this act, the EPA has initiated an investigation to determine if certain uses of lead present an unreasonable 156 CHAPTER 11. ENVIRONMENTAL LAW risk to the health and the environment. We also should be aware of the fact that lead has been eliminated from gasoline for many, many years. The EPA and the Federal Department of Housing and Urban Develop- ment have adopted regulations governing disclosure requirements for lead- based paint. These regulations impact sales and leasing transactions for nearly all residential real property built before 1978. Therefore, those of us who live in houses built in the 1900s, such as myself, must be aware that nobody in the house starts gnawing at the paint on the window sills. Under these new regulations the sellers and lessors of most resident hous- ing are require to: 1. disclose and provide any available records and reports pertaining to the presence of lead-based paint and hazards (including in common areas and nearby units) to buyers and lessees; 2. provide a copy of the EPA pamphlet entitled “Protect Your Family From Lead In Your Home” to buyers and lessees; 3. provide a ten day period for risk assessment at the buyers expense before the buyer is obligated on a contract, and 4. include certain disclosure and acknowledgment language in sales and leasing contracts. 11.5.11 Raw Material Storage In Above Ground Stor- age Tanks The environmental regulations and laws impose direct and indirect require- ments for a variety of manufacturing processes in commercial activities. Some of those recurring types of activities are not intended to cause environmental injury. However, because of the potential for an accidental occurrence or gradual leakage, several environmental requirements should be noted. The Super Fund law imposes liability for release of a “hazardous sub- stance”. The list of what constitutes such a material is extraordinarily long. Therefore a critical issue is evaluating storage, handling and other plan pro- cesses to be sure that leakage does not occur. The law deﬁnes a release into the environment as including essentially any release into the soil or water or any release that escapes from a manufacturing building into the ambient air beyond the building or which may seep through the ﬂoor of the building. 11.6. BUILDING RENOVATIONS REGULATIONS 157 Above ground storage tanks that hold virtually any category of chemical are potential sources of liability in regulatory response. Any above ground tank that holds a petroleum product may be required to have a spill pre- vention and clean up plan. These plans are required under the Clean Water Act for preventing spills of oil or hazardous substances which may reach a navigable body of water, and particularly those that may contain potable water. The hazardous waste regulations designate some materials as U materials, or P materials. Above ground tanks which store these materials raise an additional issue. The release of these materials may mean that all of the soil that is contaminated by them at the time of clean up also will be deemed to be hazardous waste. This result is due to the “mixture rule” which holds that the resulting mixture of a listed hazardous waste with a soil is deemed to be a hazardous waste. Once the raw material escapes its intended storage vessel, the hazardous waste rules deem that material to now be a “waste”. 11.5.12 Underground Storage Tanks The Super Fund law and the Resource Conservation Recovery Act apply liability requirements to underground tanks the same as they do to above ground tanks. In addition, the EPA has adopted speciﬁc rules for under- ground storage tanks containing hazardous substances and hazardous waste and has also adopted detailed requirements for underground tanks holding petroleum products. Today it has been found that many businesses do not have suﬃcient staﬀ and resources available to control costs on these projects. An example is someone purchasing the site of an old gasoline station, and then having to clear the ground of all toxic waste that may have seeped from the fuel storage tanks previously on the site. 11.6 Building Renovations Regulations The renovation of a site or renovation of a building may bring forth environ- mental issues. The basic law that has to be looked at at this point is the Federal Super Fund Law. Buildings which contain asbestos containing materials pose frequent and potentially expensive problems. Asbestos, which is friable, which means it is ﬂaking or in disrepair, is deemed by the EPA to constitute a threat, and its 158 CHAPTER 11. ENVIRONMENTAL LAW condition to create a threat of a release of a hazardous substance. Therefore, these materials should be remedied promptly. Asbestos which is not friable is not viewed by the EPA as posing an imminent threat. However, demolition of a building containing asbestos is strictly regulated and all asbestos material must be removed before a building is demolished, and sometime remodeled. It is also possible that in the course of demolition of a building or other renovation a contamination may be found in the soil. This will more likely raise clean up and reporting issues. These activities also impact other en- vironmental requirements particularly the requirement to obtain a permit before construction in any “wetland”. 11.7 The Federal Insecticide Fungicide and Rodenticide Act This act is a source of signiﬁcant EPA authority. The act deﬁnes a pesticide as any substance intended for preventing, destroying, repelling or mitigating any pests, or any substance intended for use as a plant regulator, defoliant or desiccant. Note that these deﬁnitions are based on uses that are intended or claimed for the product. A substance that does not have labels or advertising making pesticidal claims, even though the substance may be a very eﬀective pesticide, is not a pesticide under this Act. Before any pesticide can be manufactured, distributed or imported, it must be approved by the EPA. The person seeking permission must submit the complete formula of the product, the proposed label, and a full descrip- tion of the tests made and the results that support the pesticidal claims. To grant registration, the EPA must ﬁnd that a products composition warrants the proposed claims and they will not cause unreasonable adverse aﬀects on the environment. In 1996, a court decision required amendment of the Federal Insecticide Fungicide and Rodenticide Act. A court had held that the EPA had no discretion to permit any residue or food additives, including pesticides, on food products, if those additives are known to be carcinogenic. After the enactment of new laws after this decision, the EPA is allowed to establish safe levels of pesticide residues on food products. Under the law, the EPA has also established a data collection program to 11.8. AIR POLLUTION 159 assure the safety of incidents in children whose consumption or vulnerability to pesticides might possibly require measures beyond those in place for adults. Finally, the amended regulations will be EPAs platform for implementing a strategy for regulating endocrine disrupters. These new regulations require the EPA to establish a screening program to determine whether substances, including pesticides, have endocrine-disrupting eﬀects. 11.8 Air Pollution In the following portion of this lecture, we will turn to the more traditional pollution control concepts which talk about the control of waste gases, the control of waste water and the control of solid waste material. The regulatory net is ever expanding, particularly with respect to waste gases. Many busi- nesses that were previously exempt from permitting requirements, or viewed as too small to be regulated, now potentially face signiﬁcant regulation or signiﬁcant involvement with environmental agencies. Many of the current requirements may have signiﬁcant impact on business ﬂexibility to respond to changing market demands. 11.9 The Clean Air Act of 1967 The ﬁrst Clean Air Act was passed in 1967, and provided authority for the federal government to establish air quality standards. The Clean Air Act of 1970 was far stronger and more comprehensive, laying the foundation for regulatory eﬀorts during the 70s and the 80s. Most recently, the Clean Air Act Amendments of 1990 represent the ﬁfth major eﬀort by Congress to address clean air legislation. If you have any doubts that these regulations and laws are working, take note that the air in Los Angeles has become increasingly better over the last 10 to 20 years. 11.9.1 Ambient Air Quality Standards Until the Clean Air Act Amendments of 1990, the entire national strategy to improve air quality was based upon the concept of national ambient air quality standards. The purpose behind these standards is to determine the threshold level of air pollution below which no adverse eﬀect will be expe- rienced by humans or the environment. The system contains requirements 160 CHAPTER 11. ENVIRONMENTAL LAW to prevent the deterioration of air quality which is already purer than the standards would require. The program was also intended to require eﬀorts to reduce air emissions to improve air quality. There are two types of standards. Primary standards which deﬁne the air quality required to prevent any adverse impact on human health, and sec- ondary standards which establish lower numerical limits to provide adverse eﬀects on vegetation property or other elements of the environment. The short term and long term standards are also set in certain cases reﬂecting the fact that people can tolerate brief exposures of higher levels of air pollu- tion and that prolonged exposure to much lower concentrations can lead to adverse health eﬀects. Ambient air quality standards have been established for only a small number of the most common pollutants such as carbon monoxide, sulfur dioxide, nitrogen dioxide, ozone particulate and lead. In 1997, the EPA published in the federal register revised ambient air quality standards for ozone and particulate matter. The revised ozone stan- dard phases out and replaces the current 0.12 ppm 1-hour primary ozone standard with a new 0.08 ppm 8-hour standard, designed to protect against longer and more signiﬁcant exposure. 11.9.2 State Implementation Plans The Clean Air Act places most of the responsibility on the States to achieve compliance with the air quality standards. The prime vehicle for implemen- tation is known as the State Implementation Plan (SIP). The SIP establishes a control strategys emission limitations and timetable for compliance, as well as the regulatory framework for evaluating projects and individual facilities for consistency with air quality goals. The SIPs also include emission limits for speciﬁed pollutants. In October 1998, the EPA issued a ﬁnal rule requiring 22 states and the District of Columbia to revise their State Implementation Plans to address the regional transport of ground level ozone in the eastern United States. These regulations address the regional transport of NOx, which is an ozone precursor. These regulations were prompted in part by petitions ﬁled by eight northeastern states under the law, and in these petitions the states sought to prompt EPA regulation of speciﬁc emission sources in various states that contribute to non-attainment in or interfere with attainment in their respective states. Thus, these states were concerned that a factory emitting releases into the air in Ohio might eventually aﬀect the air quality in Vermont 11.10. AIR TOXICS 161 and New Hampshire for example. The EPA has proposed NOx budgets for the 22 states that are subject to the call and the 126 petitions. 11.9.3 Reasonably Available Control Technology A principal feature of the non-attainment provisions enacted in 1977 was a re- quirement that the states require existing sources in non-attainment areas to achieve reasonably available control technology. The requirement is generally applicable to a “major source” which is deﬁned as a source with a potential to emit 100 tons per year or more of a particular pollutant. These regulations may now even be applied in serious ozone areas to smaller sources, including those which lose as little as two gallons of solvent per day by evaporation. 11.10 Air Toxics The 1970 Clean Air Act authorized the EPA to set special standards for hazardous air pollutants. These rules were intended to establish additional controls which would directly restrict emissions of the large number of toxic substances not covered by those standards. Until the 1990 Amendments, national emission standards for hazardous air pollutants were promulgated only for a few substances. 11.11 Permits to Construct and Operate Ex- isting Sources of Air Pollution Under the various State Implementation Plans (SIPs) each source of air pol- lution is obligated to know which requirements in the SIP are applicable to it and to be in compliance with the regulations. Sources must also obtain permits to construct and operate sources of air pollution. These permits will allow the source to conduct operations as ascribed in the application. The law now creates a new federal operating permit program which is required for any facility deﬁned as a major source. In most metropolitan areas sources with at least 25 tons per year of volatile organic compound (VOC) emissions are likely to be subject to requiring a permit. 162 CHAPTER 11. ENVIRONMENTAL LAW 11.12 New or Modiﬁed Activities In areas which already satisfy air quality standards, rules are designed for the prevention of signiﬁcant deterioration of the air quality. These requirements apply to new major sources and major modiﬁcations to existing sources of pollution. These sources must install the best available control technology which is deﬁned as an emissions limitation based on the maximum degree of reduction for each pollutant subject to regulation which would be emitted from any proposed major stationary source or major modiﬁcation. This must take into account energy, environmental and economic impact, and other costs, which the EPA determines to be achievable for such source. 11.13 Mobile Source Emissions In recognition of the substantial contribution of mobile sources such as au- tomobiles and trucks and snowmobiles to the ozone problem, the 1990 Clean Air Act Amendments require increased attention to mobile source emissions. One way these 1990 Amendments anticipate reductions in the emissions is through transportation control measures. For example those states that have severe or extreme non-pollution attainment areas must identify and adopt speciﬁc and forceful regulations to oﬀset any growth in vehicle miles trav- eled. Aﬀected areas will include Chicago, Milwaukee, the Los Angeles area, San Diego, New York City, Philadelphia, Houston, and my hometown of Baltimore. The Clean Air Act speciﬁes broad categories of transportation control measures from which the state can choose. These include, for example, mo- tor vehicle emission inspection and maintenance programs, programs for im- proved public transit, programs to establish exclusive bus and car pool lanes in area-wide car pool programs, and programs to institute road user charges, tolls or diﬀerential rates to discourage single occupancy automobile trips. One of the proposals that is mandatory for severe and extreme non- attainment areas is a program to reduce work-related vehicle travel miles. The objective is to reduce the automobile usage during the morning rush hour period when traﬃc congestion is likely, and thus when automobile ex- haust emissions contribute more directly to the ozone formulation. Having said all this, you will note that there are no large visible indications that this portion of the law has been enacted. The reason is that both EPA and the 11.14. WATER POLLUTION 163 states have not implemented this program to a great degree due to political and public opposition. Therefore, are we in a position where our love of our cars creates a situation that will ultimately exterminate us? I am reminded of the mating habits of the praying mantis, where after the mating ritual, the female bites oﬀ the head and kills the male. 11.14 Water Pollution The Federal Water Pollution Control Act prohibits the discharge of a pollu- tant except in compliance with certain sections of the Act. Discharge of a pollutant is deﬁned as (A) any addition of any pollutant to navigable waters from any point source and (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other ﬂoating craft. 11.14.1 Navigable Waters Navigable Waters are deﬁned as the waters of the United States. The bodies of water protected are extraordinarily broad and the Act has been interpreted to apply to internal waste waters and treatment ponds, wetlands that form the border or are in reasonable proximity to other waters of the United States, even though there is no apparent surface connection, to non-navigable tributaries to traditionally navigable waters, and to intermittent streams. 11.14.2 Point Source A point source is any discernable, conﬁned and discreet conveyance including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discreet ﬁssure, container, rolling stock, concentrated animal feeding operation, or vessel or other ﬂoating craft from which pollutants may be discharged. The term “point source” has been interpreted to include the various items such as shipboard guns and a bulldozer blade. 11.14.3 Discharges Discharges only occur if one adds a pollutant to a navigable water from a point source or from a vessel or other ﬂoating craft. 164 CHAPTER 11. ENVIRONMENTAL LAW 11.14.4 Pollutant Pollutant is deﬁned as dredged spoiled, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological ma- terials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal and agricultural waste discharged into water. 11.15 Direct Discharges The Clean Water Acts prohibit the discharge of any pollutant to waters of the United States unless the discharge is authorized by a National Pollutant Discharge Elimination System permit. 11.15.1 Storm Water All storm water discharges associated with industrial activity that discharge directly through waters of the United States or through municipal separate storm sewer systems must be covered by a permit. Storm water is deﬁned to include storm water runoﬀ, snow melt runoﬀ, and surface runoﬀ and drainage. Such facilities which fall within the aegis of the storm water discharge reg- ulations are manufacturing and industrial facilities, construction operations of ﬁve or more acres, hazardous waste treatment plants, storage or disposal facilities, landﬁlls, etc. 11.15.2 Wetlands Discharges to wetlands are regulated by the Water Discharge Laws. The term wetlands is not speciﬁcally deﬁned but it is incorporated into the regulations deﬁnition of “waters of the United States”. The regulatory program govern- ing wetlands is administered by two government agencies, the Army Corp of Engineers and the EPA. For example the Secretary of the Army acting through the Chief of Engineers has permanent authority for the discharge of dredged or ﬁll materials into navigable waters. The term ﬁll, material, how- ever, is deﬁned diﬀerently by the EPA and by the Army Court of Engineers. As a result, although this is an oversimpliﬁcation, if the dischargers primary purpose is to ﬁll the Army Corp of Engineers has jurisdiction. On the other hand, if the discharger is discharging a pollutant primarily to dispose of 11.16. WASTE MANAGEMENT 165 waste, that activity is regulated by the EPA under the permitting program. Therefore, ones characterization of the primary purpose of a discharge can determine which agency issues the permit. As with any other new environment law, there are exemptions. The exempt discharges under this law include construction or maintenance of farm or stock ponds or maintenance of drainage or irrigation ditches, and construction at a construction site of temporary sedimentation basins that do not involve discharge of ﬁll material into navigable waters. 11.15.3 Great Lakes Water Quality Guidance This law enacted in 1995 promises to have a major impact on companies that operate facilities in the Great Lakes Basin, including the Chicago area. The law will greatly aﬀect municipalities located in the basin that operate waste order treatment plants. The “Guidance” as it is called, contains water quality criteria for human health, acute aquatic life, chronic aquatic life and wildlife. The Great Lakes States, which include Illinois, Minnesota, Ohio, Indiana, Wisconsin, New York, Michigan and Pennsylvania are adopting programs that are consistent with the provisions of the Guidance to apply to all waters in the State that are part of the Great Lakes Basin, and those waters which discharge into those waters. If a state has submitted an insuﬃcient program, the EPA will take action to impose the Guidance provisions in those states. You will note, a few years ago when Chicago proposed to open the locks downtown to drain water from Lake Michigan, which was exceedingly high, the other surrounding areas vetoed Chicagos right to open the locks. 11.16 Waste Management The management of solid waste is governed at the local, state and federal levels. Initially, the regulation of solid waste was largely a state and local matter. Most of the federal requirements regulating hazardous and non-hazardous solid waste are promulgated under the Solid Waste Disposal Act, the Used Oil Recycling Act and the Medical Waste Tracking Act. All of these Acts date from the 1970s and 1980s. Subtitle C of this Act establishes a compre- hensive management program to regulate hazardous waste from the point of 166 CHAPTER 11. ENVIRONMENTAL LAW generation to disposal. Another subtitle of the Act provides a minimal federal framework for management and disposal of solid wastes, such as municipal waste, mining waste, and other industrial waste not deﬁned as hazardous. Under these laws, federal involvement in solid waste management is substan- tially increased, particularly in the area of solid waste landﬁlls. Classiﬁcation of Waste A waste generator facility operator should determine whether its waste is regulated as “solid waste” and if so whether the waste is also “special waste” or “hazardous waste”. A material is a solid waste if it is a discarded material that has been abandoned, recycled or is inherently waste-like. There are several exceptions, as there are in everything, to this deﬁnition. Thus, many materials ﬁtting within the deﬁnition are not regulated. Special waste, which is not regulated under the Act, but which are con- sidered potentially hazardous. Generally speaking special waste is regulated under State Waste Management Programs. These wastes include for example materials containing PCBs and asbestos. The regulations also deﬁne what solid wastes are also hazardous, and what waste can be listed as a hazardous waste. These are speciﬁcally listed in part 261 of the legislation. Waste can also be hazardous by characteristic. That is, they exhibit one or more of the following characteristics: ignitabil- ity, corrosivity, reactivity, and toxicity. In the event of a spill or leak of a listed waste material, the resulting mixture, whether soil, water, or other chemicals, is regulated as a hazardous waste and, in the event of cleanup, is subject to stringent land disposal requirements. If the hazardous waste also is radioactive, it may be regulated as a mixed waste requiring special handling. 11.17 Special Treatment for Recycled Mate- rials With the increasing cost of disposal of non-hazardous and hazardous waste, and the predicted shortage of waste disposal capacity, both state and federal governments are placing increased emphasis on recycling and waste mini- mization. Many hazardous wastes that are recycled receive special treatment 11.17. SPECIAL TREATMENT FOR RECYCLED MATERIALS 167 under the law. Recyclable materials are hazardous wastes reclaimed to re- cover a usable product. If the materials can be sold in the commercial market place, they probably, but not necessarily, will be exempt from regulations. Materials falling within part 266 of the deﬁnition of the Act include re- cyclable materials used in the manor constituting disposal, and used oil that is hazardous by characteristic and burned for energy recovery in boilers and industrial furnaces. Materials which are excluded from regulation include reclaimed industrial ethyl alcohol, used batteries returned for regeneration, used oil that is recycled by a method other than burning, scrap metal and certain hazardous waste derived fuels or oils from petroleum reﬁneries. 168 CHAPTER 11. ENVIRONMENTAL LAW 11.18 Assignment Answer each question in one, two or three paragraphs at the most. 1. Under the topic of State and Local Emergency Planning regarding haz- ardous and toxic chemical releases, each state must designate a State Emergency Response Commission (SERC), and each SERC must desig- nate Local Emergency Planning Committees (LEPCs) for each district. The LEPC then develops an emergency response plan. What are ﬁve items that must be included in such emergency response plan? 2. The EPA (Environmental Protection Agency) is authorized to estab- lish rules requiring that certain chemicals be tested for their eﬀects on the health of people, and protection of the environment. What deter- minations does the EPA make to establish rules regarding hazardous or toxic chemicals? 3. List four (4) transportation control measures that the Clean Air Act allows states to choose to control toxic emissions from moving vehicles. In addition to those mentioned in the lecture, what single provision would you prefer to see enacted to reduce toxic emissions from motor vehicles (either new or old vehicles)?
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