Environmental Law University of Illinois at Chicago by jennyyingdi


									Chapter 11

Environmental Law

11.1      Storage and Use of Hazardous or Toxic
          Materials Compliance and Reporting

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.

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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

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
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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;
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  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
    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

  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;

  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:
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  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

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
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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,
    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
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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
    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
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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
    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
    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

11.17        Special Treatment for Recycled Mate-
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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