Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency

Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency
Environmental Laws: Summaries
of Major Statutes Administered by
the Environmental Protection Agency
David M. Bearden, Coordinator
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
Linda Luther
Analyst in Environmental Policy
James E. McCarthy
Specialist in Environmental Policy
Mary Tiemann
Specialist in Environmental Policy
Robert Esworthy
Specialist in Environmental Policy
Jerry H. Yen
Analyst in Environmental Policy
December 20, 2013
Congressional Research Service
7-5700
www.crs.gov
RL30798
Environmental Laws: Summaries of Major Statutes Administered by EPA
Summary
With congressional approval, the Nixon Administration established the Environmental Protection
Agency (EPA) in 1970 under an executive branch reorganization plan, which consolidated
numerous federal pollution control responsibilities that had been divided among several federal
agencies. EPA’s responsibilities grew over time as Congress enacted an increasing number of
environmental statutes and major amendments to these statutes. EPA’s primary responsibilities
have evolved to include the regulation of air quality, water quality, and chemicals in commerce;
the development of regulatory criteria for the management and disposal of solid and hazardous
wastes; and the cleanup of environmental contamination. The implementation and enforcement of
many of these federal authorities is delegated to the states. EPA also provides financial assistance
to states and local governments to aid them in administering pollution control programs and in
complying with certain federal environmental requirements. Several federal statutes provide the
legal authority for EPA’s programs and activities. The major provisions of each of the following
statutes are summarized in this report, as laid out in existing law as of this writing.
The Clean Air Act (CAA) authorizes EPA to set mobile source limits, ambient air quality
standards, hazardous air pollutant emission standards, standards for new pollution sources, and
significant deterioration requirements; to identify areas that do not attain federal ambient air
quality standards set under the act; to administer a cap-and-trade program to reduce acid rain; and
to phase out substances that deplete the Earth’s stratospheric ozone layer.
The Clean Water Act (CWA) authorizes the regulation and enforcement of requirements that
govern waste discharges into U.S. waters, and financial assistance for wastewater treatment plant
construction and improvements. The Ocean Dumping Act focuses on the regulation of the
intentional disposal of materials into ocean waters and authorizes related research. The Safe
Drinking Water Act (SDWA) authorizes EPA to establish primary drinking water standards,
regulate underground injection disposal practices, and administer a groundwater control program.
The Solid Waste Disposal Act and Resource Conservation and Recovery Act (RCRA) govern
the regulation of solid and hazardous wastes, and corrective actions to address improper waste
management practices. The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) focuses on the cleanup of contamination resulting from the past release
of hazardous substances, but excludes petroleum which primarily is covered under the Oil
Pollution Act. Amendments to the Solid Waste Disposal Act specifically address the cleanup of
petroleum leaked from underground storage tanks that are not covered under CERCLA.
The Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) require regulation of commercial chemicals to reduce risks to human
health and the environment. The Pollution Prevention Act (PPA) authorizes various mechanisms
intended to prevent pollution by reducing the generation of pollutants at the point of origin. The
Emergency Planning and Community Right-to-Know Act (EPCRA) requires industrial
reporting of toxic releases and encourages chemical emergency response planning.
Under these and other statutes, Congress has assigned EPA the administration of a considerable
body of law and associated programs and activities. This report is not comprehensive in terms of
summarizing all laws administered by EPA, but covers the major, basic statutory authorities
underlying the agency’s programs and activities, and those which EPA has delegated to the states.
Congressional Research Service
Environmental Laws: Summaries of Major Statutes Administered by EPA
Contents
Introduction...................................................................................................................................... 1
Clean Air Act ................................................................................................................................... 3
Background................................................................................................................................ 3
National Ambient Air Quality Standards ................................................................................... 5
State Implementation Plans ....................................................................................................... 5
Nonattainment Requirements .................................................................................................... 6
Requirements for Ozone Nonattainment Areas ................................................................... 7
Requirements for Carbon Monoxide Nonattainment Areas ................................................ 8
Requirements for Particulate Nonattainment Areas ............................................................ 9
Transported Air Pollution .......................................................................................................... 9
Emission Standards for Mobile Sources .................................................................................. 10
Hazardous Air Pollutants ......................................................................................................... 12
New Source Performance Standards ....................................................................................... 13
Solid Waste Incinerators .......................................................................................................... 14
Prevention of Significant Deterioration / Regional Haze ........................................................ 14
Acid Deposition Control.......................................................................................................... 15
Permits ..................................................................................................................................... 16
Enforcement ............................................................................................................................ 17
Stratospheric Ozone Protection ............................................................................................... 17
Clean Water Act ............................................................................................................................. 25
Background.............................................................................................................................. 25
Federal and State Responsibilities ........................................................................................... 28
Titles II and VI—Municipal Wastewater Treatment Construction .......................................... 28
Permits, Regulations, and Enforcement .................................................................................. 29
Ocean Dumping Act ...................................................................................................................... 34
Background.............................................................................................................................. 34
Regulating Ocean Dumping .................................................................................................... 35
Enforcement ............................................................................................................................ 36
Research and Coastal Water Quality Monitoring .................................................................... 37
Safe Drinking Water Act ................................................................................................................ 39
Background.............................................................................................................................. 39
National Drinking Water Regulations...................................................................................... 41
Contaminant Selection and Regulatory Schedules ............................................................ 41
Standard Setting ................................................................................................................ 41
Risk Assessment ................................................................................................................ 42
Variances and Exemptions ................................................................................................ 42
State Primacy ........................................................................................................................... 42
Enforcement, Consumer Information, and Citizen Suits ......................................................... 43
Consumer Information and Reports .................................................................................. 43
Citizen Suits ...................................................................................................................... 43
Compliance Improvement Programs ....................................................................................... 43
Ground Water Protection Programs ......................................................................................... 44
Source Water Assessment and Protection Programs................................................................ 44
State Revolving Funds ............................................................................................................. 45
Drinking Water Security .......................................................................................................... 45
Vulnerability Assessments................................................................................................. 45
Congressional Research Service
Environmental Laws: Summaries of Major Statutes Administered by EPA
Emergency Powers ............................................................................................................ 46
Tampering with Public Water Systems.............................................................................. 46
Emergency Assistance ....................................................................................................... 46
Other Selected Provisions........................................................................................................ 47
Lead-Free Plumbing .......................................................................................................... 47
Research, Technical Assistance, and Training ......................................................................... 47
Demonstration Grants .............................................................................................................. 48
Records, Inspections, and Monitoring ..................................................................................... 48
National Drinking Water Advisory Council ............................................................................ 48
Federal Agencies ..................................................................................................................... 48
Assistance to Colonias ............................................................................................................. 49
Estrogenic Substances ............................................................................................................. 49
Drinking Water Studies............................................................................................................ 49
Solid Waste Disposal Act/Resource Conservation and Recovery Act ........................................... 52
Background.............................................................................................................................. 52
Waste Management Requirements .......................................................................................... 53
Hazardous Waste Management Requirements .................................................................. 53
Solid Waste Management Requirements ........................................................................... 55
Citizen Suits and Imminent Hazard Provisions ....................................................................... 56
Underground Storage Tanks .................................................................................................... 57
Promoting Recycling ............................................................................................................... 58
Amendments to RCRA ............................................................................................................ 59
Solid Waste Disposal Act Amendments of 1980 ............................................................... 59
The Used Oil Recycling Act of 1989 ................................................................................ 60
Hazardous and Solid Waste Amendments of 1984............................................................ 61
Federal Facility Compliance Act of 1992.......................................................................... 61
1996 Amendments ............................................................................................................. 62
Hazardous Waste Electronic Manifest Establishment Act ................................................ 62
Additional Selected Laws Affecting Solid Waste Management .............................................. 62
Sanitary Food Transportation Act ..................................................................................... 62
Clean Air Act ..................................................................................................................... 62
Pollution Prevention Act ................................................................................................... 63
Indian Lands Open Dump Cleanup Act ............................................................................ 63
Mercury-Containing and Rechargeable Battery Management Act.................................... 63
Comprehensive Environmental Response, Compensation, and Liability Act ............................... 67
Major Amendments ................................................................................................................. 68
Federal Response Authorities .................................................................................................. 71
Petroleum Exclusion and Related Oil Pollution Act Authorities....................................... 72
Other Exclusions ............................................................................................................... 72
Limitations on Response Actions ...................................................................................... 72
Prioritization of Response Actions .................................................................................... 72
Scope of Response Actions ............................................................................................... 73
Federal-State Cost Sharing ................................................................................................ 74
Selection of Response Actions ................................................................................................ 75
Cleanup Standards ............................................................................................................. 75
State Participation ............................................................................................................. 76
Public Participation ........................................................................................................... 76
Agency for Toxic Substances and Disease Registry................................................................ 77
Financial Liability ................................................................................................................... 77
Congressional Research Service
Environmental Laws: Summaries of Major Statutes Administered by EPA
Categories of Potentially Responsible Parties ................................................................... 77
Reach of Liability .............................................................................................................. 78
Defenses to Liability ......................................................................................................... 79
Limitations on Liability..................................................................................................... 79
Hazardous Substance Superfund Trust Fund ........................................................................... 80
Original Taxing Authority ................................................................................................. 80
Current Source of Revenues .............................................................................................. 81
Enforcement Mechanisms ....................................................................................................... 81
Federal Facilities ..................................................................................................................... 82
National Security Exemption................................................................................................... 83
Brownfields Properties ............................................................................................................ 84
Emergency Planning and Community Right-to-Know Act ........................................................... 88
Subtitle A—Emergency Planning and Notification ................................................................. 88
Subtitle B—Reporting Requirements ...................................................................................... 89
Subtitle C—General Provisions............................................................................................... 91
Trade Secrets ..................................................................................................................... 91
Information for Health Professionals ................................................................................ 91
Right to Know ................................................................................................................... 91
Enforcement ...................................................................................................................... 91
Chemical Transport ........................................................................................................... 91
Other Provisions ................................................................................................................ 91
Pollution Prevention Act of 1990................................................................................................... 93
Background.............................................................................................................................. 93
Provisions ................................................................................................................................ 93
Toxic Substances Control Act ........................................................................................................ 96
Background.............................................................................................................................. 97
Title I ....................................................................................................................................... 97
Testing of Chemicals ......................................................................................................... 98
Pre-manufacture Notification for New Chemicals or Uses ............................................... 98
Regulatory Controls for Hazardous Chemicals ................................................................. 99
Information Gathering ..................................................................................................... 100
Imminent Hazards ........................................................................................................... 100
Relation to Other Laws ................................................................................................... 101
Enforcement and Judicial Review ................................................................................... 101
Confidential Business Information.................................................................................. 101
Chemical Categories ....................................................................................................... 101
State Preemption ............................................................................................................. 102
Other Provisions .............................................................................................................. 102
Title II (Asbestos in Buildings) ............................................................................................. 103
Title III (Radon Programs) .................................................................................................... 103
Title IV (Lead Exposure Reduction) ..................................................................................... 104
Title V (Reducing Risks in Schools) ..................................................................................... 106
Title VI (Limiting Formaldehyde Emissions) ....................................................................... 107
Pesticide Laws ............................................................................................................................. 110
History of Federal Pesticide Law .......................................................................................... 111
FIFRA ............................................................................................................................. 111
FFDCA ............................................................................................................................ 114
Registration of Pesticide Products ......................................................................................... 115
Tolerance Setting ................................................................................................................... 117
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Public Disclosure, Exclusive Use, and Trade Secrets............................................................ 118
Reregistration ........................................................................................................................ 119
Registration Review .............................................................................................................. 120
Special Review ...................................................................................................................... 120
Canceling or Suspending a Registration ................................................................................ 120
Use of Unregistered Pesticides .............................................................................................. 121
Enforcement .......................................................................................................................... 121
Export of Unregistered Pesticides ......................................................................................... 121
National Environmental Policy Act ............................................................................................. 124
The NEPA Process ................................................................................................................. 125
Environmental Protection Agency Functions Under NEPA .................................................. 126
Tables
Table 1. Clean Air Act and Amendments ......................................................................................... 4
Table 2. Statutory Ozone Nonattainment Classifications ................................................................ 6
Table 3. Current Ozone Nonattainment Classifications ................................................................... 7
Table 4. Major U.S. Code Sections of the Clean Air Act, as Amended ......................................... 19
Table 5. Clean Water Act and Major Amendments ........................................................................ 25
Table 6. Major U.S. Code Sections of the Clean Water Act, as Amended ..................................... 31
Table 7. Ocean Dumping Act and Amendments ............................................................................ 34
Table 8. Major U.S. Code Sections of the Ocean Dumping Act, as Amended .............................. 38
Table 9. Safe Drinking Water Act and Amendments ..................................................................... 40
Table 10. Major U.S. Code Sections of the Safe Drinking Water Act, as Amended (Title
XIV of the Public Health Service Act) ....................................................................................... 50
Table 11. Solid Waste Disposal Act/Resource Conservation and Recovery Act and Major
Amendments ............................................................................................................................... 52
Table 12. Major U.S. Code Sections of the Solid Waste Disposal Act/ Resource
Conservation and Recovery Act (RCRA) ................................................................................... 63
Table 13. Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and Major Amendments .......................................................................................... 70
Table 14. Major U.S. Code Sections of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as Amended, and Related Acts ............ 85
Table 15. Major U.S. Code Sections of the Emergency Planning and Community Rightto-Know Act (EPCRA) ............................................................................................................... 92
Table 16. Major U.S. Code Sections of the Pollution Prevention Act ........................................... 95
Table 17. Toxic Substances Control Act and Major Amendments................................................. 97
Table 18. Major U.S. Code Sections of the Toxic Substances Control Act, as Amended ............ 108
Table 19. Federal Insecticide, Fungicide, and Rodenticide Act and Amendments ...................... 113
Table 20. Federal Food, Drug, and Cosmetic Act, Section 408, and Amendments .................... 114
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Table 21. Major U.S. Code Sections of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), as Amended .................................................................................... 122
Table 22. Major U.S. Code Sections of the Federal Food, Drug, and Cosmetic Act
(FFDCA), as Amended, Related to Pesticides .......................................................................... 123
Table 23. National Environmental Policy Act, Amendments, and Related Acts ......................... 125
Table 24. Major U.S. Code Sections of the National Environmental Policy Act, as
Amended................................................................................................................................... 128
Contacts
Author Contact Information......................................................................................................... 129
Congressional Research Service
Environmental Laws: Summaries of Major Statutes Administered by EPA
Introduction
The origin of the Environmental Protection Agency (EPA) is rooted in a reorganization of the
executive branch under the Nixon Administration. Reorganization Plan No. 3 of 1970 proposed
the establishment of EPA to integrate the administration of numerous federal pollution control
laws that had been carried out by several federal agencies. This plan was part of a broader effort
to reorganize an array of environmental responsibilities of many federal agencies, which also
resulted in the creation of the National Oceanic and Atmospheric Administration (NOAA).1 The
Nixon Administration created EPA and NOAA through this reorganization with congressional
approval under procedures established in the Reorganization Act of 1949, as amended.2
The Reorganization Act authorizes the President to propose reorganizations to Congress that
would promote the “better execution” of federal laws, the “more effective” management of
individual agencies and their functions, and the “efficiency of the operations of Government to
the fullest extent practicable.”3 President Nixon determined that the consolidation of federal
pollution control responsibilities under one agency was necessary to meet these statutory
objectives, and proposed a reorganization of the executive branch to establish EPA under
Reorganization Plan No. 3. The plan was based largely on recommendations of the “Ash
Council,” which President Nixon had formed to examine the organization of environmental
responsibilities among federal agencies. The 91st Congress approved this plan, leading to the
creation of EPA on December 2, 1970.4
Over time, EPA’s authorities have grown as Congress has enacted an increasing number of
environmental statutes and major amendments to these statutes. EPA’s primary responsibilities
have evolved to include the regulation of air quality, water quality, and chemicals in commerce;
the development of regulatory criteria for the management and disposal of solid and hazardous
wastes; and the cleanup of environmental contamination. Although EPA sets uniform pollution
control standards and regulations on a national level, the implementation and enforcement of
many of these federal standards and regulations are delegated to the states. EPA also provides
financial assistance in the form of grants to states and local governments to aid them in
administering pollution control programs and in complying with certain federal environmental
requirements. The states also have enacted their own pollution control authorities and programs,
which complement the federal role of EPA in protecting human health and the environment.
This report presents a summary of the body of federal environmental statutes that together
constitute the main authorities of EPA, but this report is not comprehensive in terms of discussing
all federal statutes that may authorize certain activities of the agency.5 This report highlights
prominent provisions of the selected statutes discussed herein, characterizes the purpose and
scope of major programs and activities authorized in each statute, and explains the definitions of
key statutory terms that establish the parameters of the agency’s authorities in these instances.
1
Reorganization Plan No. 4 addressed the establishment of NOAA.
5 U.S.C. §901 et seq.
3
5 U.S.C. §901(a).
4
Approval of executive branch reorganization plans under the Reorganization Act of 1949, as amended, is subject to
congressional approval through a resolution process outlined at 5 U.S.C. §906.
5
For example, the National Environmental Education Act of 1990 (P.L. 101-619) authorized EPA to award grants to
elementary and secondary schools to support environmental education.
2
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Although Congress somewhat recently has renewed the authorization of appropriations for certain
EPA programs and activities through targeted amendments to various statutes, a more
comprehensive reauthorization of many of the statutes that EPA administers has not been enacted
for a number of years. Even though the authorization of appropriations may expire, program
authority (often referred to as an agency’s “enabling” authority) generally does not expire unless
repealed, or unless there is a “sunset” date for the program authority itself. If the authorization of
appropriations for a specific program or activity has expired, Congress still may provide funding
through the annual appropriations process to continue that program or activity, if certain rules for
floor consideration are not enforced or are waived.
House and Senate rules generally do not allow the appropriation of funding for a program or
activity that Congress has not authorized in law, but these rules are subject to points of order and
are not self-enforcing. Congress therefore may appropriate funding for a specific program or
activity for which the authorization of appropriations has expired, if no Member raises a point of
order, or the rules are waived for consideration of a particular bill. Congress typically has done so
to continue the appropriation of funding for EPA programs and activities for which the
authorization of appropriations has expired. Once enacted, appropriations provide the legal
authority for an agency to obligate federal funds in that particular fiscal year.6 Congress
appropriates funding for EPA within the Interior, Environment, and Related Agencies annual
appropriations bill.7 (For a discussion of enacted funding for FY2013, see CRS Report R43207,
Environmental Protection Agency (EPA): Appropriations for FY2013 in P.L. 113-6, by Robert
Esworthy and David M. Bearden.)
This report focuses primarily on EPA’s program authorities under the statutes discussed herein. A
list of major amendments to the parent statute is provided at the beginning of each summary. The
final table at the end of each summary lists the individual provisions of the statute, crossreferencing the sections of the public laws to the sections of the United States Code where each
provision is codified. The summaries in this report outline the major provisions of each statute,
but are not comprehensive in terms of discussing every provision of these statutes in their
entirety. For the purpose of brevity, the summaries omit certain details and secondary provisions
that would necessitate a lengthier examination. Furthermore, some prominent provisions are only
briefly mentioned, which are beyond the scope of the summaries provided herein.
Moreover, this report provides an analytical summary of the major provisions of the statutes as
laid out in existing law as of this writing. This report does not examine issues associated with
their implementation or with regulations that EPA may have proposed or promulgated to carry out
these statutes. Other CRS reports offer information on current developments and issues associated
with the implementation of various statutory authorities of EPA and the agency’s regulatory role
under these statutes, many of which are cited in this report where relevant to the discussion.
6
For a discussion of these and other budgetary procedures, see CRS Report 98-721, Introduction to the Federal Budget
Process, coordinated by Bill Heniff Jr.
7
During the 109th Congress, EPA’s funding was moved from the jurisdiction of the House and Senate Appropriations
Subcommittees on Veterans Affairs, Housing and Urban Development, and Independent Agencies to the Interior,
Environment, and Related Agencies Appropriations Subcommittees, beginning with the FY2006 appropriations. This
change resulted from the abolition of the House and Senate Appropriations Subcommittees on Veterans Affairs,
Housing and Urban Development, and Independent Agencies. This subcommittee jurisdiction was transferred among
the remaining subcommittees of the House and Senate Committees on Appropriations.
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Clean Air Act8
The Clean Air Act, codified as 42 U.S.C. 7401 et seq., seeks to protect human health and the
environment from emissions that pollute ambient, or outdoor, air. It requires the Environmental
Protection Agency to establish minimum national standards for air quality, and assigns primary
responsibility to the states to assure compliance with the standards. Areas not meeting the
standards, referred to as “nonattainment areas,” are required to implement specified air pollution
control measures. The act establishes federal standards for mobile sources of air pollution and
their fuels and for sources of 187 hazardous air pollutants, and it establishes a cap-and-trade
program for the emissions that cause acid rain. It establishes a comprehensive permit system for
all major sources of air pollution. It also addresses the prevention of pollution in areas with clean
air and protection of the stratospheric ozone layer.
Background
Like many other programs administered by the Environmental Protection Agency, federal efforts
to control air pollution have gone through several phases, beginning with information collection,
research, and technical assistance, before being strengthened to establish federal standards and
enforcement. Federal legislation addressing air pollution was first passed in 1955, prior to which
air pollution was the exclusive responsibility of state and local levels of government.
The federal role was strengthened in subsequent amendments, notably the Clean Air Act
Amendments of 1970, 1977, and 1990. The 1970 amendments established the procedures under
which EPA sets national standards for ambient air quality, required a 90% reduction in emissions
from new automobiles by 1975, established a program to require the best available control
technology at major new sources of air pollution, established a program to regulate air toxics, and
greatly strengthened federal enforcement authority. The 1977 amendments adjusted the auto
emission standards, extended deadlines for the attainment of ambient air quality standards, and
added the Prevention of Significant Deterioration program to protect air cleaner than national
standards.
Changes to the act in 1990 included provisions to (1) classify most nonattainment areas according
to the extent to which they exceed the standard, tailoring deadlines, planning, and controls to each
area’s status; (2) tighten auto and other mobile source emission standards; (3) require
reformulated and alternative fuels in the most polluted areas; (4) revise the air toxics section,
establishing a new program of technology-based standards and addressing the problem of sudden,
catastrophic releases of air toxics; (5) establish an acid rain control program, with a marketable
allowance scheme to provide flexibility in implementation; (6) require a state-run permit program
for the operation of major sources of air pollutants; (7) implement the Montreal Protocol to phase
out most ozone-depleting chemicals; and (8) update the enforcement provisions so that they
parallel those in other pollution control acts, including authority for EPA to assess administrative
penalties.
8
Prepared by James E. McCarthy and Claudia Copeland, Specialists in the Resources, Science, and Industry Division.
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Table 1. Clean Air Act and Amendments
(codified generally as 42 U.S.C. 7401-7671)
Year
Act
Public Law Number
1955
Air Pollution Control Act
P.L. 84-159
1959
Reauthorization
P.L. 86-353
1960
Motor vehicle exhaust study
P.L. 86-493
1963
Clean Air Act Amendments
P.L. 88-206
1965
Motor Vehicle Air Pollution Control Act
1966
Clean Air Act Amendments of 1966
P.L. 89-675
1967
Air Quality Act of 1967
National Air Emission Standards Act
P.L. 90-148
1970
Clean Air Act Amendments of 1970
P.L. 91-604
1973
Reauthorization
P.L. 93-15
1974
Energy Supply and Environmental Coordination Act of 1974
P.L. 93-319
1977
Clean Air Act Amendments of 1977
P.L. 95-95
1980
Acid Precipitation Act of 1980
1981
Steel Industry Compliance Extension Act of 1981
1987
Clean Air Act 8-month Extension
P.L. 100-202
1990
Clean Air Act Amendments of 1990
P.L. 101-549
1991
Technical correction to list of hazardous air pollutants
P.L. 102-187
1995-96
Relatively minor laws amending the act
1998
Amended Section 604 re methyl bromide
1998
Border Smog Reduction Act of 1998
P.L. 105-286
1999
Chemical Safety Information, Site Security and Fuels Regulatory
Relief Act
P.L. 106-40
2004
Amendments to §209 re small engines
2005
Energy Policy Act of 2005 (amended §211 re fuels)
P.L. 109-58
2007
Energy Independence and Security Act of 2007 (amended
§211 re fuels)
P.L. 110-140
P.L. 89-272, Title I
P.L. 96-294, Title VII
P.L. 97-23
P.L. 104-6, P.L. 104-59, P.L. 104-70, P.L.
104-260
P.L. 105-277, Section 764
P.L. 108-199, Division G, Title IV,
Section 428
The 1990 amendments also authorized appropriations for clean air programs through FY1998.
The act has not been reauthorized since then. House rules require enactment of an authorization
before an appropriation bill can be considered; but this requirement can be waived and frequently
has been. Thus, while authorization of appropriations in the Clean Air Act (and most other
environmental statutes) has expired, programs have continued and have been funded. The act’s
other legal authorities, to issue and enforce regulations, are, for the most part, permanent and are
not affected by the lack of authorization.
The remainder of this report describes major programs required by the act, with an emphasis on
the changes established by the 1990 amendments.
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Environmental Laws: Summaries of Major Statutes Administered by EPA
National Ambient Air Quality Standards
In Section 109, the act requires EPA to establish National Ambient Air Quality Standards
(NAAQS) for air pollutants that endanger public health or welfare, in the Administrator’s
judgment, and whose presence in ambient air results from numerous or diverse sources. The
NAAQS must be designed to protect public health with an adequate margin of safety and to
protect the public welfare from any known or anticipated adverse effects. Using this authority,
EPA has promulgated NAAQS for six air pollutants: sulfur dioxide (SO2), particulate matter
(PM2.5 and PM10), nitrogen dioxide (NO2), carbon monoxide (CO), ozone,9 and lead. The act
requires EPA to review the scientific data upon which the standards are based, and revise the
standards, if necessary. More often than not, EPA has taken more than five years in reviewing and
revising the standards, but the establishment of a deadline has allowed interested parties to force
review of the standards by filing suit.
Originally, the act required that the NAAQS be attained by 1977 at the latest, but the states
experienced widespread difficulty in complying with this deadline. As a result, the deadlines for
achieving NAAQS have been extended several times. Under the 1990 amendments, most areas
not in attainment with NAAQS must meet special compliance schedules, staggered according to
the severity of an area’s air pollution problem. The amendments also established specific
requirements for each nonattainment category, as described below.
State Implementation Plans
While the act authorizes EPA to set NAAQS, the states are responsible for establishing
procedures to attain and maintain the standards. Under Section 110 of the act, the states adopt
plans, known as State Implementation Plans (SIPs), and submit them to EPA to ensure that they
are adequate to meet statutory requirements.
SIPs are based on emission inventories and computer models to determine whether air quality
violations will occur. If these data show that standards would be exceeded, the state must impose
additional controls on existing sources to ensure that emissions do not cause “exceedances” of the
standards. Proposed new and modified sources must obtain state construction permits in which
the applicant shows how the anticipated emissions will not exceed allowable limits. In
nonattainment areas, emissions from new or modified sources must also be offset by reductions in
emissions from existing sources.
The 1990 amendments require EPA to impose sanctions in areas which fail to submit a SIP, fail to
submit an adequate SIP, or fail to implement a SIP: unless the state corrects such failures, a 2-to-1
emissions offset for the construction of new polluting sources is imposed 18 months after
notification to the state, and a ban on most new federal highway grants is imposed six months
later. An additional ban on air quality grants is discretionary. Ultimately, a Federal
Implementation Plan may be imposed if the state fails to submit or implement an adequate SIP.
The amendments also require that, in nonattainment areas, no federal permits or financial
assistance may be granted for activities that do not “conform” to a State Implementation Plan.
9
Unlike the other NAAQS pollutants, ozone is not directly emitted, but rather is formed in the atmosphere by the
interaction of volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the presence of sunlight. The control
of ozone is, thus, based on regulating emissions of VOCs and NOx.
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Environmental Laws: Summaries of Major Statutes Administered by EPA
This requirement can cause a temporary suspension in funding for most new highway and transit
projects if an area fails to demonstrate that the emissions caused by such projects are consistent
with attainment and maintenance of ambient air quality standards. Demonstrating conformity of
transportation plans and SIPs is required in nonattainment areas whenever new plans are
submitted.
Nonattainment Requirements
In a major departure from the prior law, the 1990 Clean Air Act Amendments grouped most
nonattainment areas into classifications based on the extent to which the NAAQS was exceeded,
and established specific pollution controls and attainment dates for each classification. These
requirements are described here as specified in Sections 181-193 of the act.10
Nonattainment areas are classified on the basis of a “design value,” which is derived from the
pollutant concentration (in parts per million or micrograms per cubic meter) recorded by air
quality monitoring devices. The design value for the 1-hour ozone standard was the fourth highest
hourly reading measured during the most recent three-year period. Using these design values, the
act created five classes of ozone nonattainment, as shown in Table 2. Only Los Angeles fell into
the “extreme” class, but 97 other areas were classified in one of the other four ozone categories. A
simpler classification system established moderate and serious nonattainment areas for carbon
monoxide and particulate matter with correspondingly more stringent control requirements for the
more polluted class.
Table 2. Statutory Ozone Nonattainment Classifications
Class
Deadline
Areasb
Design
Value
Marginal
Moderate
Serious
Severe
Extreme
1993
1996
1999
2005-2007a
2010
42 areas
0.121 ppm0.138 ppm
32 areas
0.138 ppm0.160 ppm
14 areas
0.160 ppm0.180 ppm
9 areas
0.180 ppm0.280 ppm
1 area
>0.280 ppm
a.
Areas with a 1988 design value between 0.190 and 0.280 ppm were given 17 years to attain; others had 15
years.
b.
Number of areas in each category as of the date of enactment.
As shown in Table 2, the statutory attainment deadlines for ozone nonattainment areas stretched
from 1993 to 2010, depending on the severity of the problem. Under the current eight-hour ozone
standard, shown in Table 3, these deadlines are changed to 2015 to 2032.)
10
EPA modified the ozone standard, specified in the statute as 0.12 parts per million (ppm) averaged over a 1-hour
period, to 0.08 ppm averaged over an 8-hour period, through regulations promulgated in July 1997. In April 2004, the
agency promulgated an implementation rule for the new 8-hour standard. Under this rule, the 1-hour standard was
revoked as of June 15, 2005, and areas that had not yet attained it were converted to new classifications depending on
their 8-hour concentration of ozone. In general the former 1-hour nonattainment areas remain subject to the controls
specified for their 1-hour category. The standard was revised again in March 2008, to 0.075 ppm averaged over 8
hours. Nonattainment areas for the 2008 standard were designated following its promulgation.
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Table 3. Current Ozone Nonattainment Classifications
Class
Deadline
Areasb
Design
Value
Marginal
Moderate
Serious
Severe
Extreme
2015
2018
2021
2027-2029a
2032
36 areas
0.076 ppm0.086 ppm
3 areas
0.086 ppm0.100 ppm
2 areas
0.100 ppm0.113 ppm
3 areas
0.113 ppm0.175 ppm
2 areas
>0.175 ppm
a.
Areas with a design value between 0.119 and 0.175 ppm have 17 years to attain; others have 15 years.
b.
Number of areas in each category as of the date of designation (May 2012).
Requirements for Ozone Nonattainment Areas
Although areas with more severe air pollution problems have a longer time to meet the standards,
more stringent control requirements are imposed in areas with worse pollution. A summary of the
primary ozone control requirements for each nonattainment category follows.
Marginal Areas
•
Inventory emissions sources (to be updated every three years).
•
Require 1.1 to 1 offsets (i.e., new major emission sources of volatile organic
compounds [VOCs] must reduce VOC emissions from existing facilities in the
area by 10% more than the emissions of the new facility).
•
Impose reasonably available control technology (RACT) on all major sources
emitting more than 100 tons per year for the nine industrial categories where EPA
had already issued control technique guidelines describing RACT prior to 1990.
Moderate Areas
•
Meet all requirements for marginal areas.
•
Impose a 15% reduction in VOC emissions in six years.
•
Adopt a basic vehicle inspection and maintenance program.
•
Impose RACT on all major sources emitting more than 100 tons per year for all
additional industrial categories where EPA will issue control technique guidelines
describing RACT.
•
Require vapor recovery at gas stations selling more than 10,000 gallons per
month.
•
Require 1.15 to 1 offsets.
Serious Areas
•
Meet all requirements for moderate areas.
•
Reduce definition of a major source of VOCs from emissions of 100 tons per
year to 50 tons per year for the purpose of imposing RACT.
•
Reduce VOCs 3% annually for years 7 to 9 after the 15% reduction already
required by year 6.
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•
Improve monitoring.
•
Adopt an enhanced vehicle inspection and maintenance program.
•
Require fleet vehicles to use clean alternative fuels.
•
Adopt transportation control measures if the number of vehicle miles traveled in
the area is greater than expected.
•
Require 1.2 to 1 offsets.
•
Adopt contingency measures if the area does not meet required VOC reductions.
Severe Areas
•
Meet all requirements for serious areas.
•
Reduce definition of a major source of VOCs from emissions of 50 tons per year
to 25 tons per year for the purpose of imposing RACT.
•
Adopt specified transportation control measures.
•
Implement a reformulated gasoline program.
•
Require 1.3 to 1 offsets.
•
Impose $5,000 per ton penalties on major sources if the area does not meet
required reductions.
Extreme Areas
•
Meet all requirements for severe areas.
•
Reduce definition of a major source of VOCs from emissions of 25 tons per year
to 10 tons per year for the purpose of imposing RACT.
•
Require clean fuels or advanced control technology for boilers emitting more
than 25 tons per year of NOx.
•
Require 1.5 to 1 offsets.
As noted, EPA promulgated a new, 8-hour ozone standard in July 1997. Following extensive court
challenges, the agency designated nonattainment areas for the new standard on April 30, 2004.
State Implementation Plans were required to be submitted in 2007.
Requirements for Carbon Monoxide Nonattainment Areas
As with ozone nonattainment areas, carbon monoxide (CO) nonattainment areas are subjected to
specified control requirements, with more stringent requirements in Serious nonattainment areas.
A summary of the primary CO control requirements for each nonattainment category follows.
Moderate Areas
•
Conduct an inventory of emissions sources.
•
Forecast total vehicle miles traveled in the area.
•
Adopt an enhanced vehicle inspection and maintenance program.
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•
Demonstrate annual improvements sufficient to attain the standard.
Serious Areas
•
Adopt specified transportation control measures.
•
Implement an oxygenated fuels program for all vehicles in the area.
•
Reduce definition of a major source of CO from emissions of 100 tons per year
to 50 tons per year if stationary sources contribute significantly to the CO
problem.
Serious areas failing to attain the standard by the deadline have to revise their SIP and
demonstrate reductions of 5% per year until the standard is attained. All areas have now attained
the standard.
Requirements for Particulate Nonattainment Areas
Particulate (PM10) nonattainment areas are also subject to specified control requirements. These
are:
Moderate Areas
•
Require permits for new and modified major stationary sources of PM10.
•
Impose reasonably available control measures (RACM).
Serious Areas
•
Impose best available control measures (BACM).
•
Reduce definition of a major source of PM10 from 100 tons per year to 70 tons
per year.
In July 1997, EPA promulgated new standards for fine particulates (PM2.5). The PM2.5 standards
were also subject to court challenges. The absence of a monitoring network capable of measuring
the pollutant delayed implementation as well. Nonattainment areas for PM2.5 were designated on
April 14, 2005. States had three years subsequent to designation to submit State Implementation
Plans. Revisions to the NAAQS promulgated in October 2006 strengthened the PM2.5 standard.
Transported Air Pollution
Meeting the nation’s clean air standards can be complicated, as air pollution is no respecter of
political boundaries or subdivisions. This problem of transported air pollutants has come into
particular focus as states and EPA attempt to develop effective compliance strategies to achieve
both the ozone and the PM2.5 NAAQS. Under Section 110(a)(2)(D), SIPs must include adequate
provisions to prevent sources within that state from contributing significantly to nonattainment in
one or more downwind states.
If EPA finds a SIP inadequate to achieve a NAAQS, it must require the affected state to submit a
revised SIP that includes sufficient measures to bring that state into compliance. This is known as
a “SIP Call.” The 1990 Clean Air Act amendments provided EPA and the states with new tools to
address the transport problem through this provision. One of those tools is Section 176A, a
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provision that permits EPA, either on its own or by petition from any state, to establish a transport
region to address regional pollution problems contributing to violations of a primary NAAQS. A
commission of EPA and state officials is constituted to make recommendations to EPA on
appropriate mitigation strategies. Based on the commission’s findings and recommendations, EPA
is then required under Section 110(k)(5) to notify affected states of inadequacies in their current
state implementation plans and to establish deadlines (not to exceed 18 months) for submitting
necessary revisions (i.e., a SIP call). Besides authorizing administratively created transport
regions, the 1990 amendments statutorily created an Ozone Transport Region (OTR) in the
Northeast. This provision (Section 184 of the act) required specific additional controls for all
areas (not only nonattainment areas) in that region, and established the Ozone Transport
Commission for the purpose of recommending to EPA regionwide controls affecting all areas in
the region.
The transport issue may also be addressed by affected downwind states through a Section 126
petition. As amended by the 1990 Clean Air Act amendments, under Section 126(b) any state or
political subdivision may petition EPA for a finding that a major source or group of stationary
sources located in another state is emitting pollutants that “significantly contribute” to the
nonattainment of a NAAQS by their state. EPA is to respond to the petition within 60 days. If the
petition is granted, the offending sources must cease operations within three months unless the
sources comply with emission controls and the compliance schedules as determined by EPA to
bring them into compliance with the section. Section 126 has rarely been used, although it has
proven useful to EPA in some cases as backup authority where there might be challenges to a SIP
call.
Emission Standards for Mobile Sources
Title II of the Clean Air Act has required emission standards for automobiles since 1968. The
1990 amendments significantly tightened these standards: for cars, the hydrocarbon standard was
reduced by 40% and the nitrogen oxides (NOx) standard by 50%. These standards—referred to as
“Tier 1” standards—were phased in over the 1994-1996 model years.
The amendments envisioned a further set of reductions (“Tier 2” standards), but not before model
year 2004. For Tier 2 standards to be promulgated, the agency was first required to report to
Congress concerning the need for further emission reductions, the availability of technology to
achieve such reductions, and the cost-effectiveness of such controls compared to other means of
attaining air quality standards. EPA submitted this report to Congress in August 1998, concluding
that further emission reductions were needed and that technology to achieve such reductions was
available and cost-effective. Tier 2 standards, requiring emission reductions of 77% to 95% from
cars and light trucks were promulgated in February 2000, and were phased in over the 2004-2009
model years. To facilitate the use of more effective emission controls, the standards also require a
more than 90% reduction in the sulfur content of gasoline, beginning in 2004.
The 1990 amendments also required that oxygenated gasoline, designed to reduce emissions of
carbon monoxide, be sold in the worst CO nonattainment areas and that “reformulated” gasoline
(RFG), designed to reduce emissions of volatile organic compounds and toxic air pollutants, be
sold in the nine worst ozone nonattainment areas (Los Angeles, San Diego, Houston, Baltimore,
Philadelphia, New York, Hartford, Chicago, and Milwaukee); metropolitan Washington, DC, and
four areas in California were added to the mandatory list later. Other ozone nonattainment areas
can opt in to the RFG program; as of 2006, additional areas in 11 states had done so.
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The fuels provisions were modified by the Energy Policy Act of 2005 (EPACT), removing the
requirement that RFG contain oxygenates. Instead, EPACT required the use of increasing
amounts of renewable fuel, most likely to be ethanol, in motor fuels, beginning in 2006. The
Energy Independence and Security Act of 2007 further strengthened the renewable fuel
requirements.
Use of alternative fuels and development of cleaner engines was also to be stimulated by the
Clean-Fuel Fleet Program. In all of the most seriously polluted ozone and CO nonattainment
areas, centrally fueled fleets of 10 or more passenger cars and light-duty trucks must purchase at
least 30% clean-fuel vehicles when they add new vehicles to existing fleets, starting in 1999. (The
act originally required the program to begin in 1998, but the start was delayed by a year.) The
percentage rose to 50% in 2000 and 70% in 2001. Heavy-duty fleets are required to purchase at
least 50% clean-fuel vehicles annually. A clean fuel vehicle is one which meets Low Emission
Vehicle (LEV) standards and operates on reformulated gasoline, reformulated diesel, methanol,
ethanol, natural gas, liquefied petroleum gas, hydrogen, or electricity.
In addition to the above program, California’s Zero Emission Vehicle (ZEV) program also is
intended to promote the development of alternative fuels and vehicles. Section 209(b) of the
Clean Air Act allows the EPA Administrator to grant California the authority to develop its own
vehicle emissions standards if those standards are at least as stringent as the federal standards and
if the state demonstrates that it needs the standards to meet compelling and extraordinary
conditions. In addition to setting more stringent standards for all vehicles, California used this
authority to establish a program requiring auto manufacturers to sell ZEVs (electric or hydrogen
fuel cell vehicles) in the state beginning in 2003. This program has been substantially modified
since it was enacted, and now allows credit for hybrid and partial ZEV vehicles in addition to true
ZEVs, but it has served as an incubator for lower emission technologies since its adoption.
Section 177 of the act allows other states to adopt California’s stricter standards: at least 10 states
(Connecticut, Maine, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode
Island, Vermont, and Washington) have already adopted them or are in the process of doing so.
The 1990 amendments also imposed tighter requirements on certification (an auto’s useful life is
defined as 100,000 miles instead of the earlier 50,000 miles), on emissions allowed during
refueling, on low temperature CO emissions, on in-use performance over time, and on warranties
for the most expensive emission control components (8 years/80,000 miles for the catalytic
converter, electronic emissions control unit, and onboard emissions diagnostic unit). Regulations
were also extended to include nonroad fuels and engines.
Standards for trucks and buses using diesel engines were also strengthened. The 1990
amendments required new urban buses to reduce emissions of diesel particulates 92% by 1996,
and all other heavy-duty diesel engines to achieve an 83% reduction by the same year. NOx
emissions must also be reduced, 33% by 1998. Authority to further strengthen these standards led
to promulgation in January 2001 of new emission standards requiring a further 90%-95%
reduction in emissions phased in over the 2007-2010 model years, and a reduction of 97% in the
allowable amount of sulfur in highway diesel fuel. These regulations were followed in May 2004
by similar requirements for nonroad diesel equipment, which are being phased in between 2007
and 2015.
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Hazardous Air Pollutants
Completely rewritten by the Clean Air Act Amendments of 1990, Section 112 of the act
establishes programs for protecting public health and the environment from exposure to toxic air
pollutants. As revised by the 1990 amendments, the section contains four major provisions:
Maximum Achievable Control Technology (MACT) requirements; health-based standards;
standards for stationary “area sources” (small, but numerous sources, such as gas stations or dry
cleaners, that collectively emit significant quantities of hazardous pollutants); and requirements
for the prevention of catastrophic releases.
First, EPA is to establish technology-based emission standards, called MACT standards, for
sources of 187 pollutants listed in the legislation, and to specify categories of sources subject to
the emission standards.11 EPA is to revise the standards periodically (at least every eight years).
EPA can, on its own initiative or in response to a petition, add or delete substances or source
categories from the lists.
Section 112 establishes a presumption in favor of regulation for the designated chemicals; it
requires regulation of a designated pollutant unless EPA or a petitioner is able to show “that there
is adequate data on the health and environmental effects of the substance to determine that
emissions, ambient concentrations, bioaccumulation or deposition of the substance may not
reasonably be anticipated to cause any adverse effects to human health or adverse environmental
effects.”
EPA is required to set standards for sources of the listed pollutants that achieve “the maximum
degree of reduction in emissions” taking into account cost and other non-air-quality factors.
These MACT standards for new sources “shall not be less stringent than the most stringent
emissions level that is achieved in practice by the best controlled similar source.” The standards
for existing sources may be less stringent than those for new sources, but must be no less
stringent than the emission limitations achieved by either the best performing 12% of existing
sources (if there are more than 30 such sources in the category or subcategory) or the best
performing 5 similar sources (if there are fewer than 30). Existing sources are given three years
following promulgation of standards to achieve compliance, with a possible one-year extension;
additional extensions may be available for special circumstances or for certain categories of
sources. Existing sources that achieve voluntary early emissions reductions will receive a six-year
extension for compliance with MACT.
The second major provision of Section 112 directs EPA to set health-based standards to address
situations in which a significant residual risk of adverse health effects or a threat of adverse
environmental effects remains after installation of MACT. This provision requires that EPA, after
consultation with the Surgeon General of the United States, submit a report to Congress on the
public health significance of residual risks, and recommend legislation regarding such risks. If
Congress does not legislate in response to EPA’s recommendations, then EPA is required to issue
standards for categories of sources of hazardous air pollutants as necessary to protect the public
health with an ample margin of safety or to prevent an adverse environmental effect. A residual
risk standard is required for any source emitting a cancer-causing pollutant that poses an added
11
The 1990 amendments specified 189 pollutants, but P.L. 102-187, enacted on December 4, 1991, deleted hydrogen
sulfide from the list of toxic pollutants, leaving only 188. On December 19, 2005, EPA removed methyl ethyl ketone
(MEK) from the list of toxic air pollutants. The total number of listed air toxics is now 187.
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risk to the most exposed person of more than one-in-a-million. Residual risk standards are due
eight years after promulgation of MACT for the affected source category. Existing sources have
90 days to comply with a residual risk standard, with a possible two-year extension. In general,
residual risk standards do not apply to area sources.
The law directed EPA to contract with the National Academy of Sciences (NAS) for a study of
risk assessment methodology, and created a Risk Assessment and Management Commission to
investigate and report on policy implications and appropriate uses of risk assessment and risk
management. In 1994 NAS published its report, Science and Judgment in Risk Assessment. The
Commission study, Framework for Environmental Health Risk Management, was released in
1997.
Third, in addition to the technology-based and health-based programs for major sources of
hazardous air pollution, EPA is to establish standards for stationary “area sources” determined to
present a threat of adverse effects to human health or the environment. The provision requires
EPA to regulate the stationary area sources responsible for 90% of the emissions of the 30
hazardous air pollutants that present the greatest risk to public health in the largest number of
urban areas. In setting the standard, EPA can impose less stringent “generally available” control
technologies, rather than MACT.
Finally, Section 112 addresses prevention of sudden, catastrophic releases of air toxics by
establishing an independent Chemical Safety and Hazard Investigation Board. The Board is
responsible for investigating accidents involving releases of hazardous substances, conducting
studies, and preparing reports on the handling of toxic materials and measures to reduce the risk
of accidents.
EPA is also directed to issue prevention, detection, and correction requirements for catastrophic
releases of air toxics by major sources. Section 112(r) requires owners and operators to prepare
risk management plans including hazard assessments, measures to prevent releases, and a
response program.
New Source Performance Standards
Section 111 of the act requires EPA to establish nationally uniform, technology-based standards
(called New Source Performance Standards, or NSPS) for categories of new industrial facilities.
These standards accomplish two goals: first, they establish a consistent baseline for pollution
control that competing firms must meet, and thereby remove any incentive for states or
communities to weaken air pollution standards in order to attract polluting industry; and second,
they preserve clean air to accommodate future growth, as well as for its own benefits.
NSPS establish maximum emission levels for new major stationary sources—powerplants, steel
mills, and smelters, for example—with the emission levels determined by the best “adequately
demonstrated” continuous control technology available, taking costs into account. EPA must
regularly revise and update NSPS applicable to designated sources as new technology becomes
available, since the goal is to prevent new pollution problems from developing and to force the
installation of new control technology.
The standards also apply to modifications of existing facilities, through a process called New
Source Review (NSR). The law’s ambiguity regarding what constitutes a modification (subject to
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NSR) as opposed to routine maintenance of a facility has led to litigation, with EPA proposing in
recent years to modify its interpretation of the requirements of this section.
Solid Waste Incinerators
Prior to 1990, solid waste incinerators, which emit a wide range of pollutants, were subject to
varying degrees of state and federal regulation depending on their size, age, and the type of waste
burned. In a new Section 129, the 1990 amendments established more consistent federal
requirements specifying that emissions of 10 categories of pollutants be regulated at new and
existing incinerators burning municipal solid waste, medical waste, and commercial and
industrial waste. The amendments also established emissions monitoring and operator training
requirements.
Prevention of Significant Deterioration / Regional Haze
Sections 160-169 of the act establish requirements for the prevention of significant deterioration
of air quality (PSD). The PSD program reflects the principle that areas where air quality is better
than that required by NAAQS should be protected from significant new air pollution even if
NAAQS would not be violated.
The act divides clean air areas into three classes, and specifies the increments of SO2 and
particulate pollution allowed in each. Class I areas include international and national parks,
wilderness and other pristine areas; allowable increments of new pollution are very small. Class II
areas include all attainment and not classifiable areas, not designated as Class I; allowable
increments of new pollution are modest. Class III represents selected areas that states may
designate for development; allowable increments of new pollution are large (but not so large that
the area would exceed NAAQS). Through an elaborate hearing and review process, a state can
have regions redesignated from Class II to Class III (although none have yet been so
redesignated).
While the 1977 amendments only stipulated PSD standards for two pollutants, SO2 and
particulates, EPA is supposed to establish standards for other criteria pollutants. Thus far, only
one of the other four (NO2) has been addressed: the agency promulgated standards for NO2 in
1988.
Newly constructed polluting sources in PSD areas must install best available control technology
(BACT) that may be stricter than that required by NSPS. The justifications of the policy are that it
protects air quality, provides an added margin of health protection, preserves clean air for future
development, and prevents firms from gaining a competitive edge by “shopping” for clean air to
pollute.
In Sections 169A and B, the act also sets a national goal of preventing and remedying impairment
of visibility in national parks and wilderness areas, and requires EPA to promulgate regulations to
assure reasonable progress toward that goal. In the 1990 Amendments, Congress strengthened
these provisions, which had not been implemented.
The amendments required EPA to establish a Grand Canyon Visibility Transport Commission,
composed of governors from each state in the affected region, an EPA designee, and a
representative of each of the national parks or wilderness areas in the region. Other visibility
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transport commissions can be established upon EPA’s discretion or upon petition from at least two
states. Within 18 months of receiving a report from one of these commissions, EPA is required to
promulgate regulations to assure reasonable progress toward the visibility goal, including
requirements that states update their State Implementation Plans to contain emission limits,
schedules of compliance, and other measures necessary to make reasonable progress. Specifically
mentioned is a requirement that states impose Best Available Retrofit Technology on existing
sources of emissions impairing visibility.
The Grand Canyon Commission delivered a set of recommendations to EPA in June 1996, and the
agency subsequently promulgated a “regional haze” program applicable to all 50 states under this
authority.
Acid Deposition Control
The Clean Air Act Amendments of 1990 added an acid deposition control program (Title IV) to
the act. It set goals for the year 2000 of reducing annual SO2 emissions by 10 million tons from
1980 levels and reducing annual NOx emissions by 2 million tons, also from 1980 levels.
The SO2 reductions were imposed in two steps. Under Phase 1, owners/operators of 111 electric
generating facilities listed in the law that are larger than 100 megawatts had to meet tonnage
emission limitations by January 1, 1995. This would reduce SO2 emissions by about 3.5 million
tons. Phase 2 included facilities larger than 75 megawatts, with a deadline of January 1, 2000.
Compliance has been 100%.
To introduce some flexibility in the distribution and timing of reductions, the act creates a
comprehensive permit and emissions allowance system. An allowance is a limited authorization
to emit a ton of SO2. Issued by EPA, the allowances would be allocated to Phase 1 and Phase 2
units in accordance with baseline emissions estimates. Powerplants which commence operation
after November 15, 1990, would not receive any allowances. These new units would have to
obtain allowances (offsets) from holders of existing allowances. Allowances may be traded
nationally during either phase. The law also permitted industrial sources and powerplants to sell
allowances to utility systems under regulations developed by EPA. Allowances may be banked by
a utility for future use or sale.
The act provided for two types of sales to improve the liquidity of the allowance system and to
ensure the availability of allowances for utilities and independent power producers who need
them. First, a special reserve fund consisting of 2.8% of Phase 1 and Phase 2 allowance
allocations has been set aside for sale. Allowances from this fund (25,000 annually from 19931999 and 50,000 thereafter) are sold at a fixed price of $1,500 an allowance. Independent power
producers have guaranteed rights to these allowances under certain conditions. Second, an annual,
open auction sold allowances (150,000 from 1993-1995, and 250,000 from 1996-1999) with no
minimum price. Utilities with excess allowances may have them auctioned off at this auction, and
any person may buy allowances.
The act essentially caps SO2 emissions at individual existing sources through a tonnage
limitation, and at future plants through the allowance system. First, emissions from most existing
sources are capped at a specified emission rate times an historic baseline level. Second, for plants
commencing operation after November 15, 1990, emissions must be completely offset with
additional reductions at existing facilities beginning after Phase 2 compliance. However, as noted
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above, the law provides some allowances to future powerplants which meet certain criteria. The
utility SO2 emission cap was set at 8.9 million tons, with some exceptions.
The act provides that if an affected unit does not have sufficient allowances to cover its
emissions, it is subject to an excess emission penalty of $2,000 per ton of SO2 and required to
reduce an additional ton of SO2 the next year for each ton of excess pollutant emitted.
The act also requires EPA to inventory industrial emissions of SO2 and to report every five years,
beginning in 1995. If the inventory shows that industrial emissions may reach levels above 5.60
million tons per year, then EPA is to take action under the act to ensure that the 5.60 million ton
cap is not exceeded.
The act requires EPA to set specific NOx emission rate limitations—0.45 lb. per million Btu for
tangentially-fired boilers and 0.50 lb. per million Btu for wall-fired boilers—unless those rates
cannot be achieved by low-NOx burner technology. Tangentially and wall-fired boilers affected by
Phase 1 SO2 controls must also meet NOx requirements. EPA was to set emission limitations for
other types of boilers by 1997 based on low-NOx burner costs, which EPA did. In addition, EPA
was to propose and promulgate a revised new source performance standard for NOx from fossil
fuel steam generating units, which EPA also did, in 1998.
Since 2005, EPA has used the authority described above in the section on “Transported Air
Pollution” to further reduce the caps on SO2 and NOx emissions in the eastern half of the country.
As a result, SO2 and NOx emissions have been reduced by a further 50% since 2005.
Permits
The Clean Air Act Amendments of 1990 added a Title V to the act which requires states to
administer a comprehensive permit program for the operation of sources emitting air pollutants.
These requirements are modeled after similar provisions in the Clean Water Act. Previously, the
Clean Air Act contained limited provision for permits, requiring only new or modified major
stationary sources to obtain construction permits (under Section 165 of the act).
Sources subject to the permit requirements generally include major sources that emit or have the
potential to emit 100 tons per year of any regulated pollutant, plus stationary and area sources that
emit or have potential to emit lesser specified amounts of hazardous air pollutants. However, in
nonattainment areas, the permit requirements also include sources which emit as little as 50, 25,
or 10 tons per year of VOCs, depending on the severity of the region’s nonattainment status
(serious, severe, or extreme).
States were required to develop permit programs and to submit those programs for EPA approval
by November 15, 1993. EPA had one year to approve or disapprove a state’s submission in whole
or in part. After the effective date of a state plan, sources had 12 months to submit an actual
permit application.
States are to collect annual fees from sources sufficient to cover the “reasonable costs” of
administering the permit program, with revenues to be used to support the agency’s air pollution
control program. The fee must be at least $25 per ton of regulated pollutants (excluding carbon
monoxide). Permitting authorities have discretion not to collect fees on emissions in excess of
4,000 tons per year and may collect other fee amounts, if appropriate.
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The permit states how much of which air pollutants a source is allowed to emit. As a part of the
permit process, a source must prepare a compliance plan and certify compliance. The term of
permits is limited to no more than five years; sources are required to renew permits at that time.
State permit authorities must notify contiguous states of permit applications that may affect them;
the application and any comments of contiguous states must be forwarded to EPA for review. EPA
can veto a permit; however, this authority is essentially limited to major permit changes. EPA
review need not include permits which simply codify elements of a state’s overall clean air plan,
and EPA has discretion to not review permits for small sources. Holding a permit to some extent
shields a source from enforcement actions: the act provides that a source cannot be held in
violation if it is complying with explicit requirements addressed in a permit, or if the state finds
that certain provisions do not apply to that source.
Enforcement
Section 113 of the act, which was also strengthened by the 1990 amendments, covers
enforcement. The section establishes federal authority to issue agency and court orders requiring
compliance and to impose penalties for violations of act requirements. Section 114 authorizes
EPA to require sources to submit reports, monitor emissions, and certify compliance with the act’s
requirements, and authorizes EPA personnel to conduct inspections.
Like most federal environmental statutes, the Clean Air Act is enforced primarily by states or
local governments; they issue most permits, monitor compliance, and conduct the majority of
inspections. The federal government functions as a backstop, with authority to review state
actions. The agency may act independently or may file its own enforcement action in cases where
it concludes that a state’s response was inadequate.
The act also provides for citizen suits both against persons (including corporations or government
agencies) alleged to have violated emissions standards or permit requirements, and against EPA in
cases where the Administrator has failed to perform an action that is not discretionary under the
act. Citizen groups have often used the latter provision to compel the Administrator to promulgate
regulations required by the statute.
The 1990 Amendments elevated penalties for some knowing violations from misdemeanors to
felonies; removed the ability of a source to avoid an enforcement order or civil penalty by ceasing
a violation within 60 days of notice; gave authority to EPA to assess administrative penalties; and
authorized $10,000 awards to persons supplying information leading to convictions under the act.
Stratospheric Ozone Protection
Title VI of the 1990 Clean Air Act Amendments represents the United States’ primary response on
the domestic front to the ozone depletion issue. It also implements the U.S. international
responsibilities under the Montreal Protocol on Substances that Deplete the Ozone Layer (and its
amendments). Indeed, Section 606(a)(3) provides that the Environmental Protection Agency shall
adjust phase-out schedules for ozone-depleting substances in accordance with any future changes
in Montreal Protocol schedules. As a result, the phase-out schedules contained in Title VI for
various ozone-depleting compounds have now been superseded by subsequent amendments to the
Montreal Protocol.
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Since passage of Title VI, depleting substances such as CFCs, methyl chloroform, carbon
tetrachloride, and halons (referred to as Class 1 substances) have been phased out by industrial
countries, including the United States. New uses of hydrochlorofluorocarbons (HCFCs) (called
Class 2 substances under Title VI) are banned beginning January 1, 2015, unless the HCFCs are
recycled, used as a feedstock, or used as a refrigerant for appliances manufactured prior to
January 1, 2020. Production of HCFCs is to be frozen January 1, 2015, and phased out by January
1, 2030. Exemptions consistent with the Montreal Protocol are allowed.
EPA is required to add any substance with an ozone depletion potential (ODP) of 0.2 or greater to
the list of Class 1 substances and set a phase-out schedule of no more than seven years. For
example, methyl bromide (ODP estimated by EPA at 0.7) was added to the list in December 1993,
requiring its phaseout by January 1, 2001; this decision was altered by Congress in 1998 to
harmonize the U.S. methyl bromide phase-out schedule with the 2005 deadline set by the parties
to the Montreal Protocol in 1997. Also, EPA is required to add any substance that is known or
may be reasonably anticipated to harm the stratosphere to the list of Class 2 substances and set a
phase-out schedule of no more than 10 years.
Title VI contains several implementing strategies to avoid releases of ozone-depleting chemicals
to the atmosphere, including (1) for Class 1 substances used as refrigerants—lowest achievable
level of use and emissions, maximum recycling, and safe disposal required by July 1, 1992; (2)
for servicing or disposing refrigeration equipment containing Class 1 and 2 substances—venting
banned as of July 1, 1992; (3) for motor vehicle air conditioners containing Class 1 or 2
substances—recycling required by January 1, 1992 (smaller shops by January 1, 1993); (4) sale of
small containers of class 1 and 2 substances—banned within two years of enactment; and (5)
nonessential products—banned within two years of enactment.
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Table 4. Major U.S. Code Sections of the Clean Air Act, as Amended
(codified generally at 42 U.S.C. 7401-7671q)
42 U.S.C.
Section Title
Clean Air Act, as
Amended
Chapter 85—Air Pollution Prevention And Control
Subchapter I—Programs and Activities
Part A—Air Quality and Emission Limitations
7401
Congressional findings and declaration of purpose
Sec. 101
7402
Cooperative activities
Sec. 102
7403
Research, investigation, training, and other activities
Sec. 103
7404
Research relating to fuels and vehicles
Sec. 104
7405
Grants for support of air pollution planning and control programs
Sec. 105
7406
Interstate air quality agencies; program cost limitations
Sec. 106
7407
Air quality control regions
Sec. 107
7408
Air quality criteria and control techniques
Sec. 108
7409
National primary and secondary ambient air quality standards
Sec. 109
7410
State implementation plans for national primary and secondary
ambient air quality standards
Sec. 110
7411
Standards of performance for new stationary sources
Sec. 111
7412
Hazardous air pollutants
Sec. 112
7413
Federal enforcement
Sec. 113
7414
Recordkeeping, inspections, monitoring, and entry
Sec. 114
7415
International air pollution
Sec. 115
7416
Retention of state authority
Sec. 116
7417
Advisory committees
Sec. 117
7418
Control of pollution from federal facilities
Sec. 118
7419
Primary nonferrous smelter orders
Sec. 119
7420
Noncompliance penalty
Sec. 120
7421
Consultation
Sec. 121
7422
Listing of certain unregulated pollutants
Sec. 122
7423
Stack heights
Sec. 123
7424
Assurance of adequacy of state plans
Sec. 124
7425
Measures to prevent economic disruption or unemployment
Sec. 125
7426
Interstate pollution abatement
Sec. 126
7427
Public notification
Sec. 127
7428
State boards
Sec. 128
7429
Solid waste combustion
Sec. 129
7430
Emission factors
Sec. 130
7431
Land use authority
Sec. 131
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42 U.S.C.
Section Title
Clean Air Act, as
Amended
Part B—Ozone Protection (Section 7450 to 7459 repealed—new provisions related to stratospheric ozone protection are
found at 42 U.S.C. 7671 et seq., under Subchapter VI below)
Part C—Prevention of Significant Deterioration of Air Quality
Subpart I—Clean Air
7470
Congressional declaration of purpose
Sec. 160
7471
Plan requirements
Sec. 161
7472
Initial classifications
Sec. 162
7473
Increments and ceilings
Sec. 163
7474
Area redesignation
Sec. 164
7475
Preconstruction requirements
Sec. 165
7476
Other pollutants
Sec. 166
7477
Enforcement
Sec. 167
7478
Period before plan approval
Sec. 168
7479
Definitions
Sec. 169
Subpart II—Visibility Protection
7491
Visibility protection for federal class I areas
Sec. 169A
7492
Visibility
Sec. 169B
Part D—Plan Requirements for Nonattainment Areas
Subpart I—Nonattainment Areas in General
7501
Definitions
Sec. 171
7502
Nonattainment plan provisions in general
Sec. 172
7503
Permit requirements
Sec. 173
7504
Planning procedures
Sec. 174
7505
Environmental Protection Agency grants
Sec. 175
7505a
Maintenance plans
7506
Limitations on certain federal assistance
7506a
Interstate transport commissions
7507
New motor vehicle emission standards in nonattainment areas
Sec. 177
7508
Guidance documents
Sec. 178
7509
Sanctions and consequences of failure to attain
Sec. 179
7509a
International border areas
Sec. 179B
Sec. 175A
Sec. 176
Sec. 176A
Subpart II—Additional Provisions for Ozone Nonattainment Areas
7511
Classifications and attainment dates
Sec. 181
7511a
Plan submissions and requirements
Sec. 182
7511b
Federal ozone measures
Sec. 183
7511c
Control of interstate ozone air pollution
Sec. 184
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Environmental Laws: Summaries of Major Statutes Administered by EPA
42 U.S.C.
Section Title
Clean Air Act, as
Amended
7511d
Enforcement for Severe and Extreme ozone nonattainment areas for
failure to attain
Sec. 185
7511e
Transitional areas
Sec. 185A
7511f
NOx and VOC study
Sec. 185B
Subpart III—Additional Provisions for Carbon Monoxide Nonattainment Areas
7512
Classification and attainment dates
Sec. 186
7512a
Plan submissions and requirements
Sec. 187
Subpart IV—Additional Provisions for Particulate Matter Nonattainment Areas
7513
Classifications and attainment dates
Sec. 188
7513a
Plan provisions and schedules for plan submissions
Sec. 189
7513b
Issuance of RACM and BACM guidance
Sec. 190
Subpart V—Additional Provisions for Areas Designated Nonattainment for Sulfur Oxides, Nitrogen Dioxide, or Lead
7514
Plan submission deadlines
Sec. 191
7514a
Attainment dates
Sec. 192
Subpart VI—Savings Provisions
7515
General savings clause
Sec. 193
Subchapter II—Emission Standards for Moving Sources
Part A—Motor Vehicle Emission and Fuel Standards
7521
Emission standards for new motor vehicles or new motor vehicle
engines
Sec. 202
7522
Prohibited acts
Sec. 203
7523
Actions to restrain violations
Sec. 204
7524
Civil penalties
Sec. 205
7525
Motor vehicle and motor vehicle engine compliance testing and
certification
Sec. 206
7541
Compliance by vehicles and engines in actual use
Sec. 207
7542
Information collection
Sec. 208
7543
State standards
Sec. 209
7544
State grants
Sec. 210
7545
Regulation of fuels
Sec. 211
7546
Renewable Fuel
Sec. 212
7547
Nonroad engines and vehicles
Sec. 213
7548
Study of particulate emissions from motor vehicles
Sec. 214
7549
High altitude performance adjustments
Sec. 215
7550
Definitions
Sec. 216
7552
Motor vehicle compliance program fees
Sec. 217
7553
Prohibition on production of engines requiring leaded gasoline
Sec. 218
7554
Urban bus standards
Sec. 219
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Environmental Laws: Summaries of Major Statutes Administered by EPA
42 U.S.C.
Section Title
Clean Air Act, as
Amended
Part B—Aircraft Emission Standards
7571
Establishment of standards
Sec. 231
7572
Enforcement of standards
Sec. 232
7573
State standards and controls
Sec. 233
7574
Definitions
Sec. 234
Part C—Clean Fuel Vehicles
7581
Definitions
Sec. 241
7582
Requirements applicable to clean-fuel vehicles
Sec. 242
7583
Standards for light-duty clean-fuel vehicles
Sec. 243
7584
Administration and enforcement as per California standards
Sec. 244
7585
Standards for heavy-duty clean-fuel vehicles (GVWR above 8,500 lbs.
up to 26,000 lbs.)
Sec. 245
7586
Centrally fueled fleets
Sec. 246
7587
Vehicle conversions
Sec. 247
7588
Federal agency fleets
Sec. 248
7589
California pilot test program
Sec. 249
7590
General provisions
Sec. 250
Subchapter III—General Provisions
7601
Administration
Sec. 301
7602
Definitions
Sec. 302
7603
Emergency powers
Sec. 303
7604
Citizen suits
Sec. 304
7605
Representation in litigation
Sec. 305
7606
Federal procurement
Sec. 306
7607
Administrative proceedings and judicial review
Sec. 307
7608
Mandatory licensing
Sec. 308
7609
Policy review
Sec. 309
7610
Other authority
Sec. 310
7611
Records and audit
Sec. 311
7612
Economic impact analyses
Sec. 312
7614
Labor standards
Sec. 314
7615
Separability
Sec. 315
7616
Sewage treatment grants
Sec. 316
7617
Economic impact assessment
Sec. 317
7619
Air quality monitoring
Sec. 319
7620
Standardized air quality modeling
Sec. 320
7621
Employment effects
Sec. 321
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42 U.S.C.
Section Title
Clean Air Act, as
Amended
7622
Employee protection
Sec. 322
7624
Cost of vapor recovery equipment
Sec. 323
7625
Vapor recovery for small business marketers of petroleum products
Sec. 324
7625-1
Exemptions for certain territories
Sec. 325
7625a
Statutory construction
Sec. 326
7626
Authorization of appropriations
Sec. 327
7627
Air pollution from Outer Continental Shelf activities
Sec. 328
Subchapter IV-A—Acid Deposition Control
7651
Findings and purposes
Sec. 401
7651a
Definitions
Sec. 402
7651b
Sulfur dioxide allowance program for existing and new units
Sec. 403
7651c
Phase I sulfur dioxide requirements
Sec. 404
7651d
Phase II sulfur dioxide requirements
Sec. 405
7651e
Allowances for states with emissions rates at or below 0.80
lbs/mmBtu
Sec. 406
7651f
Nitrogen oxides emission reduction program
Sec. 407
7651g
Permits and compliance plans
Sec. 408
7651h
Repowered sources
Sec. 409
7651i
Election for additional sources
Sec. 410
7651j
Excess emissions penalty
Sec. 411
7651k
Monitoring, reporting, and recordkeeping requirements
Sec. 412
7651l
General compliance with other provisions
Sec. 413
7651m
Enforcement
Sec. 414
7651n
Clean coal technology regulatory incentives
Sec. 415
7651o
Contingency guarantee, auctions, reserve
Sec. 416
Subchapter V—Permits
7661
Definitions
Sec. 501
7661a
Permit programs
Sec. 502
7661b
Permit applications
Sec. 503
7661c
Permit requirements and conditions
Sec. 504
7661d
Notification to Administrator and contiguous states
Sec. 505
7661e
Other authorities
Sec. 506
7661f
Small business stationary source technical and environmental
compliance assistance program
Sec. 507
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42 U.S.C.
Section Title
Clean Air Act, as
Amended
Subchapter VI—Stratospheric Ozone Protection
7671
Definitions
Sec. 601
7671a
Listing of class I and class II substances
Sec. 602
7671b
Monitoring and reporting requirements
Sec. 603
7671c
Phase-out of production and consumption of class I substances
Sec. 604
7671d
Phase-out of production and consumption of class II substances
Sec. 605
7671e
Accelerated schedule
Sec. 606
7671f
Exchange authority
Sec. 607
7671g
National recycling and emission reduction program
Sec. 608
7671h
Servicing of motor vehicle air conditioners
Sec. 609
7671i
Nonessential products containing chlorofluorocarbons
Sec. 610
7671j
Labeling
Sec. 611
7671k
Safe alternatives policy
Sec. 612
7671l
Federal procurement
Sec. 613
7671m
Relationship to other laws
Sec. 614
7671n
Authority of Administrator
Sec. 615
7671o
Transfers among parties to Montreal Protocol
Sec. 616
7671p
International cooperation
Sec. 617
7671q
Miscellaneous provisions
Sec. 618
[29 U.S.C. 655]
[29 U.S.C. 1662e]
Chemical Process Safety Management
Clean Air Employment Transition Assistance
Sec. 304 of CAA of 1990
Sec. 1101 of CAA of
1990
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Environmental Laws: Summaries of Major Statutes Administered by EPA
Clean Water Act12
The principal law governing pollution of the nation’s surface waters is the Federal Water
Pollution Control Act, or Clean Water Act. Originally enacted in 1948, it was totally revised by
amendments in 1972 that gave the act its current shape. The 1972 legislation spelled out
ambitious programs for water quality improvement that have since been expanded and are still
being implemented by industries and municipalities. Congress made certain fine-tuning
amendments in 1977, revised portions of the law in 1981, and enacted further amendments in
1987. Table 5 lists the original law and major amendments to it.
Table 5. Clean Water Act and Major Amendments
(codified generally at 33 U.S.C. §§1251-1387)
Year
Act
Public Law Number
1948
Federal Water Pollution Control Act
P.L. 80-845 (Act of June 30, 1948)
1956
Water Pollution Control Act of 1956
P.L. 84-660 (Act of July 9, 1956)
1961
Federal Water Pollution Control Act Amendments
P.L. 87-88
1965
Water Quality Act of 1965
P.L. 89-234
1966
Clean Water Restoration Act
P.L. 89-753
1970
Water Quality Improvement Act of 1970
1972
Federal Water Pollution Control Act Amendments
P.L. 92-500
1977
Clean Water Act of 1977
P.L. 95-217
1981
Municipal Wastewater Treatment Construction Grants Amendments
P.L. 97-117
1987
Water Quality Act of 1987
P.L. 100-4
P.L. 91-224, Part I
For a review of ongoing implementation of the act, see CRS Report R40098, Water Quality Issues
in the 111th Congress: Oversight and Implementation, by Claudia Copeland.
Background
The Federal Water Pollution Control Act of 1948 was the first comprehensive statement of federal
interest in clean water programs, and it specifically provided state and local governments with
technical assistance funds to address water pollution problems, including research. Water
pollution was viewed as primarily a state and local problem, hence, there were no federally
required goals, objectives, limits, or even guidelines. When it came to enforcement, federal
involvement was strictly limited to matters involving interstate waters and only with the consent
of the state in which the pollution originated.
During the latter half of the 1950s and well into the 1960s, water pollution control programs were
shaped by four laws which amended the 1948 statute. They dealt largely with federal assistance to
municipal dischargers and with federal enforcement programs for all dischargers. During this
12
Prepared by Claudia Copeland, Specialist in Resources and Environmental Policy, Environmental Policy Section,
Resources, Science, and Industry Division.
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period, the federal role and federal jurisdiction were gradually extended to include navigable
intrastate, as well as interstate, waters. Water quality standards became a feature of the law in
1965, requiring states to set standards for interstate waters that would be used to determine actual
pollution levels.
By the late 1960s, there was a widespread perception that existing enforcement procedures were
too time-consuming and that the water quality standards approach was flawed because of
difficulties in linking a particular discharger to violations of stream quality standards.
Additionally, there was mounting frustration over the slow pace of pollution cleanup efforts and a
suspicion that control technologies were being developed but not applied to the problems. These
perceptions and frustrations, along with increased public interest in environmental protection, set
the stage for the 1972 amendments.
The 1972 statute did not continue the basic components of previous laws as much as it set up new
ones. It set optimistic and ambitious goals, required all municipal and industrial wastewater to be
treated before being discharged into waterways, increased federal assistance for municipal
treatment plant construction, strengthened and streamlined enforcement, and expanded the federal
role while retaining the responsibility of states for day-to-day implementation of the law.
The 1972 legislation declared as its objective the restoration and maintenance of the chemical,
physical, and biological integrity of the nation’s waters. Two goals also were established: zero
discharge of pollutants by 1985 and, as an interim goal and where possible, water quality that is
both “fishable” and “swimmable” by mid-1983. While those dates have passed, the goals remain,
and efforts to attain the goals continue.
The Clean Water Act (CWA) today consists of two major parts, one being the Title II and Title VI
provisions which authorize federal financial assistance for municipal sewage treatment plant
construction. The other is regulatory requirements, found throughout the act, that apply to
industrial and municipal dischargers.
The act has been termed a technology-forcing statute because of the rigorous demands placed on
those who are regulated by it to achieve higher and higher levels of pollution abatement.
Industries were given until July 1, 1977, to install “best practicable control technology” (BPT) to
clean up waste discharges. Municipal wastewater treatment plants were required to meet an
equivalent goal, termed “secondary treatment,” by that date. (Municipalities unable to achieve
secondary treatment by that date were allowed to apply for case-by-case extensions up to July 1,
1988. According to EPA, 86% of all cities met the 1988 deadline; the remainder was put under
judicial or administrative schedules requiring compliance as soon as possible. However, many
cities, especially smaller ones, continue to make investments in building or upgrading facilities
needed to achieve secondary treatment.) Cities that discharge wastes into marine waters were
eligible for case-by-case waivers of the secondary treatment requirement, where sufficient
showing could be made that natural factors provide significant elimination of traditional forms of
pollution and that both balanced populations of fish, shellfish, and wildlife and water quality
standards would be protected.
The primary focus of BPT was on controlling discharges of conventional pollutants, such as
suspended solids, biochemical oxygen demanding material, fecal coliform and bacteria, and pH.
These pollutants are substances that are biodegradable (i.e., bacteria can break them down), occur
naturally in the aquatic environment, and deplete the dissolved oxygen concentration in water,
which is necessary for fish and other aquatic life.
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The act required greater pollutant cleanup than BPT by no later than March 31, 1989, generally
demanding that industry use the “best available technology” (BAT) that is economically
achievable. Compliance extensions of as long as two years are available for industrial sources
utilizing innovative or alternative technology. Failure to meet statutory deadlines could lead to
enforcement action.
The act utilizes both water quality standards and technology-based effluent limitations to protect
water quality. Technology-based effluent limitations are specific numerical limitations established
by EPA and placed on certain pollutants from certain sources. They are applied to industrial and
municipal sources through numerical effluent limitations in discharge permits. Water quality
standards are standards for the overall quality of water. They consist of the designated beneficial
use or uses of a waterbody (recreation, water supply, industrial, or other), plus a numerical or
narrative statement identifying maximum concentrations of various pollutants which would not
interfere with the designated use. The act requires each state to establish water quality standards
for all bodies of water in the state. These standards serve as the backup to federally set
technology-based requirements by indicating where additional pollutant controls are needed to
achieve the overall goals of the act. In waters where industrial and municipal sources have
achieved technology-based effluent limitations, yet water quality standards have not been met,
dischargers may be required to meet additional pollution control requirements. For each of these
waters, the act requires states to set a total maximum daily load (TMDL) of pollutants at a level
that ensures that applicable water quality standards can be attained and maintained. A TMDL is
both a planning process for attaining water quality standards and a quantitative assessment of
pollution problems, sources, and pollutant reductions needed to restore and protect a river, stream,
or lake. Based on state reports, EPA estimates that more than 40,000 U.S. waters are impaired and
require preparation of TMDLs.
Control of toxic pollutant discharges has been a key focus of water quality programs. In addition
to the BPT and BAT national standards, states are required to implement control strategies for
waters expected to remain polluted by toxic chemicals even after industrial dischargers have
installed the best available cleanup technologies required under the law. Development of
management programs for these post-BAT pollutant problems was a prominent element in the
1987 amendments and is a key continuing aspect of CWA implementation.
Prior to the 1987 amendments, programs in the Clean Water Act were primarily directed at pointsource pollution—wastes discharged from discrete and identifiable sources, such as pipes and
other outfalls. In contrast, except for general planning activities, little attention had been given to
nonpoint-source pollution (stormwater runoff from agricultural lands, forests, construction sites,
and urban areas), despite estimates that it represents more than 50% of the nation’s remaining
water pollution problems. As it travels across land surface towards rivers and streams, rainfall and
snowmelt runoff picks up pollutants, including sediments, toxic materials, and conventional
wastes (e.g., nutrients) that can degrade water quality.
The 1987 amendments authorized measures to address such pollution by directing states to
develop and implement nonpoint pollution management programs (Section 319 of the act). States
were encouraged to pursue groundwater protection activities as part of their overall nonpoint
pollution control efforts. Federal financial assistance was authorized to support demonstration
projects and actual control activities. These grants may cover up to 60% of program
implementation costs.
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While the act imposes great technological demands, it also recognizes the need for
comprehensive research on water quality problems. This is provided throughout the statute, on
topics including pollution in the Great Lakes and Chesapeake Bay, in-place toxic pollutants in
harbors and navigable waterways, and water pollution resulting from mine drainage. The act also
authorizes support to train personnel who operate and maintain wastewater treatment facilities.
Federal and State Responsibilities
Under this act, federal jurisdiction is broad, particularly regarding establishment of national
standards or effluent limitations. The Environmental Protection Agency (EPA) issues regulations
containing the BPT and BAT effluent standards applicable to categories of industrial sources
(such as iron and steel manufacturing, organic chemical manufacturing, petroleum refining, and
others). Certain responsibilities are delegated to the states, and this act, like other environmental
laws, embodies a philosophy of federal-state partnership in which the federal government sets the
agenda and standards for pollution abatement, while states carry out day-to-day activities of
implementation and enforcement. Delegated responsibilities under the act include authority for
qualified states to issue discharge permits to industries and municipalities and to enforce permits
(46 states have been delegated the permit program; EPA issues discharge permits in the remaining
states—Idaho, Massachusetts, New Hampshire, New Mexico—and the District of Columbia.). In
addition, as noted above, states are responsible for establishing water quality standards.
Titles II and VI—Municipal Wastewater Treatment Construction
Federal law has authorized grants for planning, design, and construction of municipal sewage
treatment facilities since 1956 (Act of July 9, 1956, or P.L. 84-660). Congress greatly expanded
this grant is program in 1972. Since that time Congress has authorized $65 billion and
appropriated more than $85 billion in Clean Water Act funds to aid wastewater infrastructure
plant construction (not including congressionally earmarked appropriations for specific projects).
Grants are allocated among the states according to a complex statutory formula that combines two
factors: state population and an estimate of municipal sewage treatment funding needs derived
from a biennial survey conducted by EPA and the states.
The most recent EPA-state estimate, completed in 2008, indicated that nearly $203 billion is
needed to build and upgrade needed municipal wastewater treatment plants in the United States
and for other types of water quality improvement projects that are eligible for funding under the
act. In 2002, EPA released a new report called the Gap Analysis which estimated that, over the
next two decades, the United States needs to spend nearly $390 billion to replace existing
wastewater infrastructure systems and to build new ones. Estimates of future funding needs and
questions about federal support continue to be prominent.
Under the Title II construction grants program established in 1972, federal grants were made for
several types of projects (such as secondary or more stringent treatment and associated sewers)
based on a priority list established by the states. Grants were generally available for as much as
55% of total project costs. For projects using innovative or alternative technology (such as reuse
or recycling of water), as much as 75% federal funding was allowed. Recipients were responsible
for non-federal costs but were not required to repay federal grants.
Policymakers have debated the tension between assisting municipal funding needs, which remain
large, and the impact of grant programs such as the Clean Water Act’s on federal spending and
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budget deficits. In the 1987 amendments to the act, Congress attempted to deal with that apparent
conflict by extending federal aid for wastewater treatment construction through FY1994, yet
providing a transition towards full state and local government responsibility for financing after
that date. Grants under the traditional Title II program were authorized through FY1990. Under
Title VI of the act, grants to capitalize State Water Pollution Control Revolving Funds, or loan
programs, were authorized beginning in FY1989 to replace the Title II grants. States contribute
matching funds, and under the revolving loan fund concept, monies used for wastewater
treatment construction will be repaid to a state, to be available for future construction in other
communities. All states now have functioning loan programs, but the shift from federal grants to
loans, since FY1991, has been easier for some than others. The new financing requirements have
been a problem for cities (especially small towns) that have difficulty repaying project loans.
Statutory authorization for grants to capitalize state loan programs expired in 1994; however,
Congress has continued to provide annual appropriations. An issue affecting some cities is
overflow discharges of inadequately treated wastes from municipal sewers and how cities will
pay for costly remediation projects. In 2000, Congress amended the act to authorize a two-year
$1.5 billion grant program to help cities reduce these wet weather flows. Authorization for that
wet weather grant program expired at the end of FY2003 and has not been renewed.
Permits, Regulations, and Enforcement
To achieve its objectives, the act embodies the concept that all discharges into the nation’s waters
are unlawful, unless specifically authorized by a permit. Thus, more than 65,000 industrial and
municipal dischargers must obtain permits from EPA (or qualified states) under the act’s National
Pollutant Discharge Elimination System (NPDES) program (authorized in Section 402 of the act).
NPDES permits also are required for more than 150,000 industrial and municipal sources of
stormwater discharges. An NPDES permit requires the discharger (source) to attain technologybased effluent limits (BPT or BAT for industry, secondary treatment for municipalities, or more
stringent for water quality protection). Permits specify the control technology applicable to each
pollutant, the effluent limitations a discharger must meet, and the deadline for compliance.
Sources are required to maintain records and to carry out effluent monitoring activities. Permits
are issued for five-year periods and must be renewed thereafter to allow continued discharge.
The NPDES permit incorporates numerical effluent limitations issued by EPA. The initial BPT
limitations focused on regulating discharges of conventional pollutants, such as bacteria and
oxygen-consuming materials. The more stringent BAT limitations emphasize controlling toxic
pollutants—heavy metals, pesticides, and other organic chemicals. In addition to these limitations
applicable to categories of industry, EPA has issued water quality criteria for more than 115
pollutants, including 65 named classes or categories of toxic chemicals, or “priority pollutants.”
These criteria recommend ambient, or overall, concentration levels for the pollutants and provide
guidance to states for establishing water quality standards that will achieve the goals of the act.
A separate type of permit is required to dispose of dredge or fill material in the nation’s waters,
including wetlands. Authorized by Section 404 of the act, this permit program is administered by
the U.S. Army Corps of Engineers, subject to and using EPA’s environmental guidance. Some
types of activities are exempt from these permit requirements, including certain farming,
ranching, and forestry practices which do not alter the use or character of the land; some
construction and maintenance; and activities already regulated by states under other provisions of
the act. EPA may delegate certain Section 404 permitting responsibility to qualified states and has
done so twice (Michigan and New Jersey). For some time, the act’s wetlands permit program has
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been one of the most controversial parts of the law. Some who wish to develop wetlands maintain
that federal regulation intrudes on and impedes private land-use decisions, while
environmentalists seek more protection for remaining wetlands and limits on activities that take
place in wetlands.
Nonpoint sources of pollution, which EPA and states believe are responsible for the majority of
water quality impairments in the nation, are not subject to CWA permits or other regulatory
requirements under federal law. They are covered by state programs for the management of
runoff, under Section 319 of the act.
Other EPA regulations under the CWA include guidelines on using and disposing of sewage
sludge and guidelines for discharging pollutants from land-based sources into the ocean. (A
related statute, the Ocean Dumping Act, regulates the intentional disposal of wastes into ocean
waters.) EPA also provides guidance on technologies that will achieve BPT, BAT, and other
effluent limitations.
The NPDES permit, containing effluent limitations on what may be discharged by a source, is the
act’s principal enforcement tool. EPA may issue a compliance order or bring a civil suit in U.S.
district court against persons who violate the terms of a permit. The penalty for such a violation
can be as much as $25,000 per day. Stiffer penalties are authorized for criminal violations of the
act—for negligent or knowing violations—of as much as $50,000 per day, three years’
imprisonment, or both. A fine of as much as $250,000, 15 years in prison, or both, is authorized
for “knowing endangerment”—violations that knowingly place another person in imminent
danger of death or serious bodily injury. Finally, EPA is authorized to assess civil penalties
administratively for certain well-documented violations of the law. These civil and criminal
enforcement provisions are contained in Section 309 of the act. EPA, working with the Army
Corps of Engineers, also has responsibility for enforcing against entities who engage in activities
that destroy or alter wetlands.
While the CWA addresses federal enforcement, the majority of actions taken to enforce the law
are undertaken by states, both because states issue the majority of permits to dischargers and
because the federal government lacks the resources for day-to-day monitoring and enforcement.
Like most other federal environmental laws, CWA enforcement is shared by EPA and states, with
states having primary responsibility. However, EPA has oversight of state enforcement and retains
the right to bring a direct action where it believes that a state has failed to take timely and
appropriate action or where a state or local agency requests EPA involvement. Finally, the federal
government acts to enforce against criminal violations of the federal law.
In addition, individuals may bring a citizen suit in U.S. district court against persons who violate
a prescribed effluent standard or limitation. Individuals also may bring citizen suits against the
Administrator of EPA or equivalent state official (where program responsibility has been
delegated to the state) for failure to carry out a nondiscretionary duty under the act.
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Table 6. Major U.S. Code Sections of the Clean Water Act, as Amended
(codified generally at 33 U.S.C. Sections 1251-1387)
33 U.S.C.
Section Title
Clean Water Act, as
Amended
Chapter 26—Water Pollution Prevention and Control
Subchapter I—Research and Related Programs
1251
Congressional declaration of goals and policy
Sec. 101
1252
Comprehensive programs for water pollution control
Sec. 102
1253
Interstate cooperation and uniform laws
Sec. 103
1254
Research, investigations, training and information
Sec. 104
1255
Grants for research and development
Sec. 105
1256
Grants for pollution control programs
Sec. 106
1257
Mine water pollution control demonstrations
Sec. 107
1258
Pollution control in the Great Lakes
Sec. 108
1259
Training grants and contracts
Sec. 109
1260
Applications for training grants and contracts; allocations
Sec. 110
1261
Scholarships
Sec. 111
1262
Definitions and authorizations
Sec. 112
1263
Alaska village demonstration projects
Sec. 113
1264
Omitted (ecological study of Lake Tahoe)
Sec. 114
1265
In-place toxic pollutants
Sec. 115
1266
Hudson River reclamation demonstration project
Sec. 116
1267
Chesapeake Bay
Sec. 117
1268
Great Lakes
Sec. 118
1269
Long Island Sound
Sec. 119
1270
Lake Champlain Basin program
Sec. 120
1273
Lake Pontchartrain Basin
Sec. 121
1274
Wet weather watershed pilot projects
Sec. 122
Subchapter II—Grants for Construction of Treatment Works
1281
Congressional declaration of purpose
Sec. 201
1282
Federal share
Sec. 202
1283
Plans, specifications, estimates, and payments
Sec. 203
1284
Limitations and conditions
Sec. 204
1285
Allotment of grant funds
Sec. 205
1286
Reimbursement and advanced construction
Sec. 206
1287
Authorization of appropriations
Sec. 207
1288
Areawide waste treatment management
Sec. 208
1289
Basin planning
Sec. 209
1290
Annual survey
Sec. 210
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33 U.S.C.
Section Title
Clean Water Act, as
Amended
1291
Sewage collection systems
Sec. 211
1292
Definitions
Sec. 212
1293
Loan guarantees
Sec. 213
1294
Public information and education on recycling and reuse of wastewater,
use of land treatment, and reduction of wastewater volume
Sec. 214
1295
Requirements for American materials
Sec. 215
1296
Determination of priority of projects
Sec. 216
1297
Guidelines for cost-effective analysis
Sec. 217
1298
Cost effectiveness
Sec. 218
1299
State certification of projects
Sec. 219
1300
Pilot program for alternative water source projects
Sec. 220
1301
Sewer overflow control grants
Sec. 221
Subchapter III—Standards and Enforcement
1311
Effluent limitations
Sec. 301
1312
Water quality-related effluent limitations
Sec. 302
1313
Water quality standards and implementation plans
Sec. 303
1314
Information and guidelines
Sec. 304
1315
State reports on water quality
Sec. 305
1316
National standards of performance
Sec. 306
1317
Toxic and pretreatment effluent standards
Sec. 307
1318
Records and reports, inspections
Sec. 308
1319
Enforcement
Sec. 309
1320
International pollution abatement
Sec. 310
1321
Oil and hazardous substance liability
Sec. 311
1322
Marine sanitation devices
Sec. 312
1323
Federal facilities pollution control
Sec. 313
1324
Clean lakes
Sec. 314
1325
National Study Commission
Sec. 315
1326
Thermal discharges
Sec. 316
1327
Omitted (alternative financing)
Sec. 317
1328
Aquaculture
Sec. 318
1329
Nonpoint source management programs
Sec. 319
1330
National estuary program
Sec. 320
Subchapter IV—Permits and Licenses
1341
Certification
Sec. 401
1342
National pollutant discharge elimination system
Sec. 402
1343
Ocean discharge criteria
Sec. 403
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33 U.S.C.
Section Title
Clean Water Act, as
Amended
1344
Permits for dredged or fill materials
Sec. 404
1345
Disposal or use of sewage sludge
Sec. 405
1346
Coastal recreation water quality monitoring and notification
Sec. 406
Subchapter V—General Provisions
1361
Administration
Sec. 501
1362
Definitions
Sec. 502
1363
Water Pollution Control Advisory Board
Sec. 503
1364
Emergency powers
Sec. 504
1365
Citizen suits
Sec. 505
1366
Appearance
Sec. 506
1367
Employee protection
Sec. 507
1368
Federal procurement
Sec. 508
1369
Administrative procedure and judicial review
Sec. 509
1370
State authority
Sec. 510
1371
Authority under other laws and regulations
Sec. 511
1372
Labor standards
Sec. 513
1373
Public health agency coordination
Sec. 514
1374
Effluent Standards And Water Quality Information Advisory Committee
Sec. 515
1375
Reports to Congress; detailed estimates and comprehensive study on
costs; state estimates
Sec. 516
1376
Authorization of appropriations
Sec. 517
1377
Indian tribes
Sec. 518
Subchapter VI—State Water Pollution Control Revolving Funds
1381
Grants to states for establishment of revolving funds
Sec. 601
1382
Capitalization grant agreements
Sec. 602
1383
Water pollution control revolving loan funds
Sec. 603
1384
Allotment of funds
Sec. 604
1385
Corrective action
Sec. 605
1386
Audits, reports, and fiscal controls, intended use plan
Sec. 606
1387
Authorization of appropriations
Sec. 607
Note: This table shows only the major code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Ocean Dumping Act13
The Ocean Dumping Act has two basic aims: to regulate intentional ocean disposal of materials,
and to authorize related research. Title I of the Marine Protection, Research, and Sanctuaries Act
of 1972 (MPRSA, P.L. 92-532), which is often referred to just as the Ocean Dumping Act,
contains permit and enforcement provisions for ocean dumping. Research provisions are
contained in Title II, concerning general and ocean disposal research. Title IV established a
regional marine research program, and Title V addresses coastal water quality monitoring. Title
III of the MPRSA, not addressed here, authorizes the establishment of marine sanctuaries. Table
7 shows the original enactment and subsequent amendments.
Table 7. Ocean Dumping Act and Amendments
(codified generally at 33 U.S.C. §§1401-1445, 16 U.S.C. §§447-1447f, 33 U.S.C. §§2801-2805 )
Year
Act
Public Law Number
1972
Marine Protection, Research, and Sanctuaries Act
P.L. 92-532
1974
London Dumping Convention Implementation
P.L. 93-254
1977
Authorization of Appropriations
P.L. 95-153
1980
Authorization of Appropriations
P.L. 96-381
1980
Authorization of Appropriations
P.L. 96-572
1982
Surface Transportation Assistance Act
P.L. 97-424
1986
Budget Reconciliation
1986
Water Resources Development Act
1987
Water Quality Act of 1987
1988
Ocean dumping research amendments
P.L. 100-627, Title I
1988
Ocean Dumping Ban Act
P.L. 100-688, Title I
1988
U.S. Public Vessel Medical Waste Anti-Dumping Act of 1988
P.L. 100-688, Title III
1990
Regional marine research centers
P.L. 101-593, Title III
1992
National Coastal Monitoring Act
P.L. 102-567, Title V
1992
Water Resources Development Act
P.L. 99-272, §§6061-6065
P.L. 99-662, §§211, 728, 1172
P.L. 100-4, §508
P.L. 102-580, §§504-510
Background
The nature of marine pollution requires that it be regulated internationally, since once a pollutant
enters marine waters, it knows no boundary. Thus, a series of regional treaties and conventions
pertaining to local marine pollution problems and more comprehensive international conventions
providing uniform standards to control worldwide marine pollution has evolved over the last 35
years.
13
Prepared by Claudia Copeland, Specialist in Resources and Environmental Policy, Environmental Policy Section,
Resources, Science and Industry Division.
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At the same time that key international protocols were being adopted and ratified by large number
of countries worldwide (early 1970s), the United States enacted the MPRSA to regulate disposal
of wastes in marine waters that are within U.S. jurisdiction. It utilizes a comprehensive and
uniform waste management system to regulate disposal or dumping of all materials into ocean
waters. Prior to 1972, U.S. marine waters had been used extensively as a convenient alternative to
land-based sites for the disposal of various wastes such as sewage sludge, industrial wastes, and
pipeline discharges and runoff.
The basic provisions of the act have remained virtually unchanged since 1972, but many new
authorities have been added. These newer parts include (1) research responsibilities for EPA; (2)
specific direction that EPA phase out the disposal of “harmful” sewage sludges and industrial
wastes; (3) a ban on the ocean disposal of sewage sludge and industrial wastes by December 31,
1991; (4) inclusion of Long Island Sound within the purview of the act; and (5) inclusion of
medical waste provisions. Authorizations for appropriations to support provisions of the law
expired at the end of FY1997 (September 30, 1997). Authorities did not lapse, however, and
Congress has continued to appropriate funds to carry out the act.
Four federal agencies have responsibilities under the Ocean Dumping Act: EPA, the U.S. Army
Corps of Engineers, the National Oceanic and Atmospheric Administration (NOAA), and the
Coast Guard. EPA has primary authority for regulating ocean disposal of all substances except
dredged spoils, which are under the authority of the Corps of Engineers. NOAA is responsible for
long-range research on the effects of human-induced changes to the marine environment, while
EPA is authorized to carry out research and demonstration activities related to phasing out sewage
sludge and industrial waste dumping. The Coast Guard is charged with maintaining surveillance
of ocean dumping.
Regulating Ocean Dumping
Title I of the MPRSA prohibits all ocean dumping, except that allowed by permits, in any ocean
waters under U.S. jurisdiction, by any U.S. vessel, or by any vessel sailing from a U.S. port. The
act bans any dumping of radiological, chemical, and biological warfare agents and any high-level
radioactive waste, and medical wastes. Permits for dumping of other materials, except dredge
spoils, can be issued by EPA after notice and opportunity for public hearings where the
Administrator determines that such dumping will not unreasonably degrade or endanger human
health, welfare, the marine environment, ecological systems, or economic potentialities. The law
regulates ocean dumping within the area extending 12 nautical miles seaward from the U.S.
baseline and regulates transport of material by U.S.-flagged vessels for dumping into ocean
waters. EPA designates sites for ocean dumping and specifies in each permit where the material is
to be disposed. EPA has prepared annual reports on ocean dumping permits for material other
than dredged material, through 2010.14
In 1977, Congress amended the act to require that dumping of municipal sewage sludge or
industrial wastes which unreasonably degrade the environment cease by December 1981. In 1986
amendments, Congress directed that ocean disposal of all wastes cease at the traditional 12-mile
site off the New York/New Jersey coast (that is, barred issuance of permits at the 12-mile site)
and be moved to a new site 106 miles offshore. In 1988, Congress enacted several laws amending
14
See http://water.epa.gov/type/oceb/oceandumping/annualreport.cfm.
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the Ocean Dumping Act, with particular emphasis on phasing out sewage sludge and industrial
waste disposal in the ocean, which continued despite earlier legislative efforts.
In 1992, Congress amended the act to permit states to adopt ocean dumping standards more
stringent than federal standards and to require that permits conform with long-term management
plans for designated marine dumpsites, to ensure that permitted activities are consistent with
expected uses of the site.
Virtually all ocean dumping that occurs today is dredged material—sediments removed from the
bottom of water bodies in order to maintain navigation channels and berthing areas. The Corps of
Engineers issues permits for ocean dumping of dredged material, the bulk of which results from
maintenance dredging by the Corps itself or its contractors. According to data compiled by the
Corps, each year an average of 70 million cubic yards of dredged sediment material is disposed of
in the ocean at designated sites. Before sediments can be permitted to be dumped in the ocean,
they are evaluated to ensure that the dumping will not cause significant harmful effects to human
health or the marine environment. EPA is responsible for developing criteria to ensure that the
ocean disposal of dredge spoils does not cause environmental harm. Permits for ocean disposal of
dredged material are to be based on the same criteria utilized by EPA under other provisions of
the act, and to the extent possible, EPA-recommended dumping sites are used. Where the only
feasible disposition of dredged material would violate the dumping criteria, the Corps can request
an EPA waiver. Amendments enacted in 1992 expanded EPA’s role in permitting of dredged
material by authorizing EPA to impose permit conditions or even deny a permit, if necessary to
prevent environmental problems.
Permits issued under the Ocean Dumping Act specify the type of material to be disposed, the
amount to be transported for dumping, the location of the dumpsite, the length of time the permit
is valid, and special provisions for surveillance. The EPA Administrator can require a permit
applicant to provide information necessary for the review and evaluation of the application.
Enforcement
The act authorizes EPA to assess civil penalties of not more than $50,000 for each violation of a
permit or permit requirement, taking into account such factors as gravity of the violation, prior
violations, and demonstrations of good faith; however, no penalty can be assessed until after
notice and opportunity for a hearing. Criminal penalties (including seizure and forfeiture of
vessels) for knowing violations of the act also are authorized. In addition, the act authorizes
penalties for ocean dumping of medical wastes (civil penalties up to $125,000 for each violation
and criminal penalties up to $250,000, five years in prison, or both). The Coast Guard is directed
to conduct surveillance and other appropriate enforcement activities to prevent unlawful
transportation of material for dumping, or unlawful dumping. Like many other federal
environmental laws, the Ocean Dumping Act allows individuals to bring a citizen suit in U.S.
district court against any person, including the United States, for violation of a permit or other
prohibition, limitation, or criterion issued under Title I of the act.
In conjunction with the Ocean Dumping Act, the Clean Water Act (CWA) regulates all discharges
into navigable waters including the territorial seas. Although these two laws overlap in their
coverage of dumping from vessels within the territorial seas, any question of conflict is
essentially moot because EPA has promulgated a uniform set of standards (40 C.F.R. Parts 220229). The Ocean Dumping Act preempts the CWA in coastal waters or open oceans, and the CWA
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controls in estuaries. States are permitted to regulate ocean dumping in waters within their
jurisdiction under certain circumstances.
The act also requires the EPA Administrator, to the extent possible, to apply the standards and
criteria binding upon the United States that are stated in the 1972 Convention on the Prevention
of Marine Pollution by Dumping of Wastes and Other Matters (known as the London Dumping
Convention). This Convention, signed by more than 85 countries, includes Annexes that prohibit
the dumping of mercury, cadmium and other substances such as DDT and PCBs, solid wastes and
persistent plastics, oil, high-level radioactive wastes, and chemical and biological warfare agents;
and requires special permits for other heavy metals, cyanides and fluorides, and medium- and
low-level radioactive wastes.
Research and Coastal Water Quality Monitoring
Title II of the MPRSA authorizes two types of research: general research on ocean resources,
under the jurisdiction of the National Oceanic and Atmospheric Administration (NOAA); and
EPA research related to phasing out ocean disposal activities.
NOAA is directed to carry out a comprehensive, long-term research program on the effects not
only of ocean dumping, but also of pollution, overfishing, and other human-induced changes on
the marine ecosystem. Additionally, NOAA assesses damages from spills of petroleum and
petroleum products.
EPA’s research role includes “research, investigations, experiments, training, demonstrations,
surveys, and studies” to minimize or end the dumping of sewage sludge and industrial wastes,
along with research on alternatives to ocean disposal. Amendments in 1980 required EPA to study
technological options for removing heavy metals and certain organic materials from New York
City’s sewage sludge.
Title IV of the MPRSA established nine regional marine research boards for the purpose of
developing comprehensive marine research plans, considering water quality and ecosystem
conditions and research and monitoring priorities and objectives in each region. The plans, after
approval by NOAA and EPA, are to guide NOAA in awarding research grant funds under this title
of the act.
Title V of the MPRSA established a national coastal water quality monitoring program. It directs
EPA and NOAA jointly to implement a long-term program to collect and analyze scientific data
on the environmental quality of coastal ecosystems, including ambient water quality, health and
quality of living resources, sources of environmental degradation, and data on trends. Results of
these activities (including intensive monitoring of key coastal waters) are intended to provide
information necessary to design and implement effective programs under the Clean Water Act and
Coastal Zone Management Act.
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Table 8. Major U.S. Code Sections of the Ocean Dumping Act, as Amended
(codified at 33 U.S.C. §§1401-1445, 16 U.S.C. §§1447-1447f, 33 U.S.C. §§2801-2805)
U.S.C.
Section Title
Ocean Dumping Act, as
Amended
33 U.S.C.
Chapter 27—Ocean Dumping
1401
Congressional finding,, policy, declaration of purpose
Sec. 2
1401
Definitions
Sec. 3
Subchapter I—Regulation
1411
Prohibited acts
Sec. 101
1412
Dumping permit program
Sec. 102
1412a
Emergency dumping of industrial waste
1413
Dumping permit program for dredged material
Sec. 103
1414
Permit conditions
Sec. 104
1414a
Special provisions regarding certain dumping sites
Sec. 104A
1414b
Ocean dumping of sewage sludge and industrial waste
Sec. 104B
1414c
Prohibition on disposal of sewage sludge at landfills on Staten Island
Sec. 104C
1415
Penalties
Sec. 105
1416
Relationship to other laws
Sec. 106
1417
Enforcement
Sec. 107
1418
Regulations
Sec. 108
1419
International cooperation
Sec. 109
1420
Authorization of appropriations
Sec. 111
1421
Omitted (annual report to Congress)
Sec. 112
Sec. 102A
Subchapter II—Research
1441
Monitoring and research program
Sec. 201
1442
Research program respecting possible long-range effects of pollution,
overfishing, and man-induced changes of ocean ecosystems
Sec. 202
1443
Research program respecting ocean dumping and other methods of
waste disposal
Sec. 203
1444
Annual reports
Sec. 204
1445
Authorization of appropriations
Sec. 205
16 U.S.C.
Chapter 32A—Regional Marine Research Program
1447
Purposes
Sec. 401
1447a
Definitions
Sec. 402
1447b
Regional Marine Research Boards
Sec. 403
1447c
Regional research plans
Sec. 404
1447d
Research grant program
Sec. 405
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U.S.C.
Section Title
Ocean Dumping Act, as
Amended
1447e
Report on research program
Sec. 406
1447f
Authorization of appropriations
Sec. 407
33 U.S.C.
Chapter 41—National Coastal Monitoring
2801
Purposes
Sec. 501
2802
Definitions
Sec. 502
2803
Comprehensive Coastal Water Quality Monitoring Program
Sec. 503
2804
Report to Congress
Sec. 504
2805
Authorization of appropriations
Sec. 505
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
Safe Drinking Water Act15
The Safe Drinking Water Act (SDWA), Title XIV of the Public Health Service Act, is the key
federal law for protecting public water supplies from harmful contaminants. First enacted in 1974
and substantively amended in 1986 and 1996, the act is administered through programs that
establish standards and treatment requirements for public water supplies, control underground
injection of wastes, finance infrastructure projects, and protect sources of drinking water. The
1974 law established the current federal-state arrangement in which states may be delegated
primary implementation and enforcement authority for the drinking water program. The stateadministered Public Water Supply Supervision (PWSS) Program remains the basic program for
regulating the nation’s public water systems, and 49 states have assumed this authority. SDWA
appropriations were authorized through FY2003.
Background
As indicated in Table 9, the Safe Drinking Water Act has been amended several times since
enactment of the Safe Drinking Water Act of 1974 (P.L. 93-523). Congress enacted P.L. 93-523
after nationwide studies of community water systems revealed widespread water quality problems
and health risks resulting from poor operating procedures, inadequate facilities, and poor
management of public water supplies in communities of all sizes. The 1974 law gave EPA
substantial discretionary authority to regulate drinking water contaminants and gave states the
lead role in implementation and enforcement.
15
Prepared by Mary Tiemann, Specialist in Environmental Policy, Environmental Policy Section, Resources, Science,
and Industry Division.
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Table 9. Safe Drinking Water Act and Amendments
(codified generally at 42 U.S.C. 300f-300j-25)
Year
Act
Public Law Number
1974
Safe Drinking Water Act of 1974
P.L. 93-523
1977
Safe Drinking Water Act Amendments of 1977
P.L. 95-190
1979
Safe Drinking Water Act Amendments
P.L. 96-63
1980
Safe Drinking Water Act Amendments
P.L. 96-502
1986
Safe Drinking Water Act Amendments of 1986
P.L. 99-339
1988
Lead Contamination Control Act of 1988
P.L. 100-572
1996
Safe Drinking Water Act Amendments of 1996
P.L. 104-182
2002
Public Health Security and Bioterrorism Preparedness
and Response Act of 2002
P.L. 107-188
The first major amendments (P.L. 99-339), enacted in 1986, were largely intended to increase
the pace at which EPA regulated contaminants. From 1974 until 1986, EPA had regulated just one
additional contaminant beyond the 22 standards previously developed by the Public Health
Service. The 1986 amendments required EPA to (1) issue regulations for 83 specified
contaminants by June 1989 and for 25 more contaminants every three years thereafter, (2)
promulgate requirements for disinfection and filtration of public water supplies, (3) ban the use of
lead pipes and lead solder in new drinking water systems, (4) establish an elective wellhead
protection program around public wells, (5) establish a demonstration grant program for state and
local authorities having designated sole-source aquifers to develop groundwater protection
programs, and (6) issue rules for monitoring injection wells that inject wastes below a drinking
water source. The amendments also increased EPA’s enforcement authority.
The Lead Contamination Control Act of 1988 (P.L. 100-572) added a new Part F to the SDWA.
These provisions were intended to reduce exposure to lead in drinking water by requiring the
recall of lead-lined water coolers, and requiring EPA to issue a guidance document and testing
protocol for states to help schools and day care centers identify and correct lead contamination in
school drinking water.
After the regulatory schedule mandated in the 1986 amendments proved to be unworkable for
EPA, states and public water systems, the 104th Congress made sweeping changes to the act with
the SDWA Amendments of 1996 (P.L. 104-182). As over-arching themes, these amendments
aimed to target resources to address the greatest health risks, add some regulatory flexibility,
provide funding for federal drinking water mandates, and improve water systems’ compliance
capacity. The amendments revoked the requirement that EPA regulate 25 new contaminants every
three years, and provided a risk-based approach for selecting contaminants for regulation. Among
other changes, Congress added some flexibility to the standard-setting process, required EPA to
conduct health risk reduction and cost analyses for most new standards, authorized a state
revolving loan fund (SRF) program to help public water systems finance projects needed to meet
SDWA requirements, added programs to improve small system compliance, expanded consumer
information requirements, increased the act’s focus on pollution prevention through a voluntary
source water protection program, and streamlined the act’s enforcement provisions. P.L. 104-182
extended authorizations for appropriations under the act through FY2003.
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In June 2002, drinking water security provisions were added to the SDWA through the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188). Key
provisions of the act include requirements for community water systems serving more than 3,300
individuals to conduct vulnerability assessments and prepare emergency preparedness and
response plans and requirements for EPA to conduct research on preventing and responding to
terrorist or other attacks.
National Drinking Water Regulations
A key component of the SDWA is the requirement that EPA promulgate national primary drinking
water regulations for contaminants that may pose health risks and that are likely to be present in
public water supplies. Section 1412 instructs EPA on how to select contaminants for regulation
and specifies how EPA must establish regulations once a contaminant has been selected. The
regulations apply to the roughly 168,000 privately and publicly owned water systems that provide
piped water for human consumption to at least 15 service connections or that regularly serve at
least 25 people. EPA has issued regulations for roughly 90 contaminants.
Contaminant Selection and Regulatory Schedules
Section 1412, as amended in 1996, directs EPA to select contaminants for regulatory
consideration based on occurrence, health effects, and meaningful opportunity for health risk
reduction. Starting in 1998, and every five years thereafter, EPA must publish a list of
contaminants that may warrant regulation. Starting in 2001, and every five years thereafter, EPA
must determine whether or not to regulate at least five of the listed contaminants. The act requires
EPA to evaluate contaminants that present the greatest health concern and to regulate
contaminants that occur at concentration levels and frequencies of public health concern. The
amendments also included schedules for EPA to complete regulations for specific contaminants
(i.e., radon, arsenic, disinfectants and disinfection byproducts, and Cryptosproridium).
Standard Setting
For each contaminant that EPA determines requires regulation, EPA must set a non-enforceable
maximum contaminant level goal (MCLG) at a level at which no known or anticipated adverse
health effects occur and which allows an adequate margin of safety. EPA must then set an
enforceable standard, a maximum contaminant level (MCL), as close to the MCLG as is
“feasible” using best technology, treatment techniques, or other means available (taking costs into
consideration). EPA generally sets standards based on technologies that are affordable for large
communities; however, under P.L. 104-182, EPA is now required, when issuing a regulation for
a contaminant, to list any technologies or other means that comply with the MCL and that are
affordable for three categories of small public water systems (serving populations of 10,000 or
fewer). If EPA does not identify technologies that are affordable for small systems, then EPA must
identify small system “variance” technologies or other means that may not achieve the MCL but
are protective of public health.
Another provision added in 1996 requires EPA, when proposing a regulation, to publish a
determination as to whether or not the benefits of the standard justify the costs. If EPA determines
that the benefits do not justify the costs, EPA may, with certain exceptions, promulgate a standard
that maximizes health risk reduction benefits at a cost that is justified by the benefits.
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New SDWA regulations generally become effective three years after promulgation. Up to two
additional years may be allowed if EPA (or a state in the case of an individual system) determines
the time is needed for capital improvements. Section 1448 outlines procedures for judicial review
of EPA actions involving the establishment of SDWA regulations and other final EPA actions.
Risk Assessment
The 1996 amendments also added risk assessment and risk communication provisions to SDWA.
When developing regulations, EPA is required to (1) use the best available, peer-reviewed science
and supporting studies and data; and (2) make publicly available a risk assessment document that
discusses estimated risks, uncertainties, and studies used in the assessment. When proposing
drinking water regulations, EPA must publish a health risk reduction and cost analysis (HRRCA).
EPA may promulgate an interim standard without first preparing this benefit-cost analysis or
making a determination as to whether the benefits of a regulation would justify the costs if EPA
determines that a contaminant presents an urgent threat to public health.
Variances and Exemptions
In anticipation that some systems, particularly smaller ones, could have difficulty complying with
every regulation, Congress included in the SDWA provisions for variances and exemptions.
Section 1415 authorizes a state to grant a public water system a variance from a standard if raw
water quality prevents the standard from being met despite application of best technology, and the
variance does not result in an unreasonable risk to health. A 1996 provision (Subsection 1415(e))
authorizes variances specifically for small systems based on application of best affordable
technology.
When developing a regulation, if EPA cannot identify a technology that meets the standard and is
affordable for small systems, EPA must identify variance technologies that are affordable but do
not necessarily meet the standard. In cases where EPA has identified variance technologies, states
may grant small system variances to systems serving 3,300 or fewer persons if the system cannot
afford to comply with a standard (through treatment, an alternative water source, or restructuring)
and the variance ensures adequate protection of public health. States also may grant these
variances to systems serving between 3,301 and 10,000 persons with EPA approval. To receive a
small system variance, the system must install a variance technology.
Section 1416 authorizes states to grant public water systems temporary exemptions from
standards or treatment techniques if a system cannot comply for other compelling reasons
(including costs). An exemption is intended to give a water system more time to comply with a
regulation and can be issued only if it will not result in an unreasonable health risk. A qualified
system may receive an exemption for up to three years beyond the compliance deadline. Systems
serving 3,300 or fewer persons may receive a maximum of three additional two-year extensions,
for a total exemption duration of nine years.
State Primacy
Section 1413 authorizes states to assume primary oversight and enforcement responsibility
(primacy) for public water systems. To assume primacy, states must adopt regulations at least as
stringent as national requirements, develop adequate procedures for enforcement, adopt authority
for administrative penalties, maintain records, and develop a plan for providing emergency water
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supplies. Currently, 55 of 57 states and territories have primacy authority. The act authorizes $100
million annually for EPA to make grants to states to administer the Public Water System
Supervision Program. States may also use part of their SRF grant for this purpose.
Enforcement, Consumer Information, and Citizen Suits
The Safe Drinking Water Act requires public water systems to monitor their water supplies to
ensure compliance with drinking water standards and to report monitoring results to the states.
States review monitoring data submitted by public water systems, or conduct their own
monitoring, to determine system compliance with drinking water regulations. EPA monitors
public water system compliance primarily by reviewing the violation data submitted by the states.
Section 1414 requires that, whenever EPA finds that a public water system in a state with primary
enforcement authority does not comply with regulations, the agency must notify the state and the
system and provide assistance to bring the system into compliance. If the state fails to commence
enforcement action within 30 days after the notification, EPA is authorized to issue an
administrative order or commence a civil action. In a non-primacy state, EPA must notify an
elected local official (if any has jurisdiction over the water system) before commencing an
enforcement action against the system.
The 1996 amendments strengthened enforcement authorities, streamlined the process for issuing
federal administrative orders, increased administrative penalty amounts, made more sections of
the act clearly subject to EPA enforcement, and required states (as a condition of primacy) to have
administrative penalty authority. The amendments also provided that no enforcement action may
be taken against a public water system that has a plan to consolidate with another system.
Consumer Information and Reports
Enforcement provisions also require public water systems to notify customers of violations of
drinking water standards or other requirements, such as monitoring and reporting. Systems must
notify customers within 24 hours of any violations that have the potential to cause serious health
effects as a result of short-term exposure (e.g., violations of microbial standards). The
amendments also require community water systems to mail to all customers an annual “ consumer
confidence report” on contaminants detected in their drinking water. States must prepare annual
reports on the compliance of public water systems and make summaries available to EPA and the
public, and EPA must prepare annual national compliance reports.
Citizen Suits
Section 1449 provides for citizens’ civil actions. Citizen suits may be brought against any person
or agency allegedly in violation of provisions of the act, or against the Administrator for alleged
failure to perform any action or duty that is not discretionary.
Compliance Improvement Programs
The 1996 amendments added two state-administered programs aimed at improving public water
system compliance with drinking water regulations: the operator certification program and the
capacity development program. Section 1419 required states to adopt programs for training and
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certifying operators of community and non-transient non-community systems (e.g., schools and
workplaces that have their own wells). In 1999, EPA issued guidelines specifying minimum
certification standards. EPA is required to withhold 20% of a state’s revolving fund (SRF) annual
grant unless the state has adopted and is implementing an operator certification program. Section
1420 required states to establish capacity development programs, also based on EPA guidance.
These programs must include (1) legal authority to ensure that new systems have the technical,
financial, and managerial capacity to meet SDWA requirements; and (2) a strategy to assist
existing systems that are experiencing difficulties to come into compliance. EPA is required to
withhold a portion of SRF grants from states that do not have capacity development strategies.
Ground Water Protection Programs
Most small water systems rely on ground water as a source of drinking water, and Part C of the
act focuses on ground water protection. Section 1421 authorized the establishment of state
underground injection control (UIC) programs to protect underground sources of drinking water.
In 1977, EPA issued mandated regulations containing minimum requirements for the underground
injection of wastes into five classes of disposal wells and requiring states to prohibit any
underground injection not authorized by state permit. The law specified that the regulations could
not interfere with the underground injection of brine from oil and gas production or recovery of
oil unless underground sources of drinking water would be affected. Section 1422 authorized
affected states to submit plans to EPA for implementing UIC programs and, if approved, to
assume primary enforcement responsibility. EPA is required to implement the program if a state’s
plan has not been approved or the state has chosen not to assume program responsibility (Section
1423). For oil and gas injection operations only, states with UIC programs are delegated primary
enforcement authority without meeting EPA regulations (Section 1425).
Section 1424(e) authorizes EPA to make determinations, on EPA’s initiative or upon petition, that
an aquifer is the sole or principal drinking water source for an area. In areas that overlie a
designated sole-source aquifer, no federal funding may be committed for projects that EPA
determines may contaminate such an aquifer. Any person may petition for sole source aquifer
designation.
The act contains three additional state programs aimed specifically at protecting ground water.
Added in 1986, Section 1427 established procedures for demonstration programs to develop,
implement, and assess critical aquifer protection areas already designated by the Administrator as
sole source aquifers. Section 1428, also added in 1986, established an elective state program for
protecting wellhead areas around public water system wells. If a state established a wellhead
protection program by 1989, and EPA approved the state’s program, then EPA may award grants
covering between 50% and 90% of the costs of implementing the program. Section 1429, added
in 1996, authorizes EPA to make 50% grants to states to develop programs to ensure coordinated
and comprehensive protection of ground water within the states. Appropriations for these three
programs and for UIC state program grants were authorized through FY2003.
Source Water Assessment and Protection Programs
In 1996, Congress broadened the act’s pollution prevention focus to embrace surface water, in
addition to ground water, protection. Section 1453 required EPA to publish guidance for states to
implement source water assessment programs that delineate boundaries of areas from which
systems receive their water, and identify the origins of contaminants in delineated areas to
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determine systems’ susceptibility to contamination. States with approved assessment programs
may adopt alternative monitoring requirements to provide systems with monitoring relief
provided under Section 1418.
Section 1454 authorized a source water petition program based on voluntary partnerships between
state and local governments. States may establish a program under which a community water
system or local government may submit a petition to the state requesting assistance in developing
a voluntary source water quality protection partnership to (1) reduce the presence of contaminants
in drinking water; (2) receive financial or technical assistance; and (3) develop a long-term source
water protection strategy. This section authorized, through FY2003, $5 million each year for
grants to states to support petition programs. States also may use 10% of their annual SRF grant
to support various source water protection activities including the petition program.
State Revolving Funds
In 1996, Congress authorized a drinking water state revolving loan fund (DWSRF) program to
help systems finance improvements needed to comply with SDWA regulations (Section 1452).
EPA is authorized to make grants to states to capitalize DWSRFs, which states then may use to
make loans to public water systems. States must match 20% of the federal grant, and grants are
allotted among the states based on the results of the latest quadrennial needs survey. Each state
and the District of Columbia must receive at least 1% of the appropriated funds. A state may
transfer up to 33% of the grant to the Clean Water Act (CWA) SRF, or an equivalent amount from
the CWA SRF to the DWSRF through FY2002. This authority has been extended in subsequent
appropriations acts.
DWSRFs may be used to provide loans for expenditures EPA has determined will facilitate
compliance or significantly further the act’s health protection objectives. States must make
available 15% of their annual allotment for loan assistance to systems that serve 10,000 or fewer
persons, to the extent that funds can be obligated for eligible projects. States may use up to 30%
of their DWSRF grant to provide loan subsidies (including forgiveness of principal) to help
economically disadvantaged communities. Also, states may use a portion of funds for technical
assistance, source water protection and capacity development programs, and for operator
certification. The law authorized appropriations of $599 million for FY1994 and $1 billion per
year for FY1995 through FY2003 for the DWSRF program.
Drinking Water Security
The 107th Congress passed the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002 (P.L. 107-188). Title IV of the Bioterrorism Act amended the SDWA to
address threats to drinking water security. Key provisions are summarized below.
Vulnerability Assessments
Section 1433 was added to SDWA, requiring each community water system serving more than
3,300 individuals to conduct an assessment of the system’s vulnerability to terrorist attacks or
other intentional acts to disrupt the provision of a safe and reliable drinking water supply. This
provision established deadlines, based on system size, for community water systems to certify to
EPA that they had conducted a vulnerability assessment and to submit to EPA a copy of the
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assessment. The law required all these systems to complete vulnerability assessments by June 30,
2004, or earlier. Section 1433 exempts the contents of the vulnerability assessments from
disclosure under the Freedom of Information Act (except for information contained in the
certification identifying the system and the date of the certification), and provides for civil and
criminal penalties for inappropriate disclosure of information by government officials.
In addition, Section 1433 required each community water system serving more than 3,300
individuals to prepare or revise an emergency response plan incorporating the results of the
vulnerability assessment. EPA was required to provide guidance to smaller systems on how to
conduct vulnerability assessments, prepare emergency response plans, and address threats.
The act authorized $160 million for FY2002, and such sums as may be necessary for FY2003
through FY2005, to provide financial assistance to community water systems to conduct
vulnerability assessments, to prepare response plans, and to address basic security enhancements
and significant threats.
The Bioterrorism Act also added new SDWA Sections 1434 and 1435 directing the EPA
Administrator to review methods by which terrorists or others could disrupt the provision of safe
water supplies. EPA was required to review methods for preventing, detecting, and responding to
such disruptions, and methods for providing alternative drinking water supplies if a water system
was destroyed or impaired. The act authorized $15 million for FY2002, and such sums as may be
necessary for FY2003 through FY2005 to carry out these sections.
Emergency Powers
Under Section 1431, the Administrator has emergency powers to issue orders and commence civil
action if (1) a contaminant likely to enter a public water supply system poses a substantial threat
to public health, and (2) state or local officials have not taken adequate action. The Bioterrorism
Act amended this section to specify that EPA’s emergency powers include the authority to act
when there is a threatened or potential terrorist attack or other intentional act to disrupt the
provision of safe drinking water or to impact the safety of a community’s water supply.
Tampering with Public Water Systems
Section 1432 provides for civil and criminal penalties against any person who tampers, attempts
to tamper, or makes a threat to tamper with a public water system. Amendments made by the
Bioterrorism Act increased criminal and civil penalties for tampering, attempting to tamper, or
making threats to tamper with public water supplies. The maximum prison sentence for tampering
was increased from 5 to 20 years. The maximum prison sentence for attempting to tamper, or
making threats to tamper, was increased from 3 to 10 years. The maximum fine that may be
imposed for tampering was increased from $50,000 to $1 million. The maximum fine for
attempting to tamper, or threatening to tamper, was increased from $20,000 to $100,000.
Emergency Assistance
SDWA Subsection 1442(b) authorizes EPA to provide technical assistance and to make grants to
states and public water systems to assist in responding to and alleviating emergency situations.
The Bioterrorism Act amended Subsection 1442(d) to authorize appropriations for such
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emergency assistance of not more than $35 million for FY2002, and such sums as may be
necessary for each fiscal year thereafter.
Other Selected Provisions
Lead-Free Plumbing
Section 1417 prohibits the use of any pipe, solder, or flux used in the installation or repair of
public water systems or plumbing in residential or nonresidential facilities providing drinking
water that is not “lead free” (as defined in the act). This section also makes it unlawful to sell
pipes, plumbing fittings, or fixtures that are not lead free, or to sell solder or flux that is not lead
free (unless it is properly labeled), with the exception of pipes used in manufacturing or industrial
processing.16 Section 1417(e), added in 1996, directed EPA to promulgate regulations setting
health-based performance standards limiting the amount of lead that may leach from new
plumbing fittings and fixtures, unless a voluntary standard was established within one year of
enactment. A voluntary standard was established.
Enacted January 4, 2011, the Reduction of Lead in Drinking Water Act (P.L. 111-380) amended
Section 1417 (42 U.S.C. 300g-6) to add new exemptions from prohibitions on the use or sale of
lead pipes, solder, and flux; and to revise the SDWA definition of “lead-free.” The provisions of
this act become effective on January 4, 2014. Briefly, P.L. 111-380 reduced the allowable level of
lead in products in contact with drinking water from 8.0% to 0.25% (weighted average), which
makes federal law similar to several states’ laws, and compatible with new industry standards.
In Section 1417(a), as amended, the general prohibitions on the use of lead pipes, solder, and flux
do not apply to “(A) pipes, pipe fittings, plumbing fittings, or fixtures, including backflow
preventers, that are used exclusively for nonpotable services such as manufacturing, industrial
processing, irrigation, outdoor watering or any other uses where the water is not anticipated to be
used for human consumption; or (B) toilets, bidets, urinals, fill valves, flushometer valves, tub
fillers, shower valves, service saddles, or water distribution main gate valves that are two inches
in diameter or larger.”
In Section 1417(d), the term “lead free” means “(A) not containing more than 0.2% lead when
used with respect to solder and flux (unchanged from existing law); and (2) not more than a
weighted average of 0.25% lead when used with respect to the wetted surfaces of pipes, pipe
fittings, plumbing fittings, and fixtures.” The legislation established a formula to calculate the
weighted average lead content of a pipe, pipe fitting, plumbing fitting, or fixture.
Research, Technical Assistance, and Training
Section 1442 authorizes the EPA to conduct research, studies, and demonstrations related to the
causes, diagnosis, treatment, control, and prevention of diseases and other impairments resulting
from contaminants in water. The agency is directed to provide technical assistance to the states
and municipalities in administering their public water system regulatory responsibilities. This
16
Section 1417(d) defines “lead free” to mean not more than 0.2% lead for solders and fluxes, and not more than 8%
lead for pipes and pipe fittings.
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section authorized $15 million annually from FY1997 through FY2003 for technical assistance to
small systems and Indian Tribes. (Title II of P.L. 104-182, the 1996 amendments, authorized
additional appropriations for drinking water research, not to exceed $26.6 million annually for
FY1997 through FY2003.)
Demonstration Grants
Section 1444 authorizes the Administrator to award grants for the development and demonstration
of new technologies for providing safe drinking water and to investigate health implications
involved in the reclamation/reuse of waste waters.
Records, Inspections, and Monitoring
Section 1445 states that persons subject to requirements under SDWA must establish and
maintain records, conduct water monitoring, and provide any information that the Administrator
may require by regulation to carry out the requirements of the act. Section 1445(b) authorizes the
Administrator or a representative, after notifying the state in writing, to enter and inspect the
property of water suppliers or other persons subject to the act’s requirements, to determine
whether the person is in compliance with the act. Failure to comply with these provisions may
result in civil penalties.
This section also directs the EPA to promulgate regulations establishing the criteria for a
monitoring program for unregulated contaminants. Beginning in 1999 and every five years
thereafter, the EPA must issue a list of not more than 30 unregulated contaminants to be
monitored by public water systems. States are permitted to develop representative monitoring
plan to assess the occurrence of unregulated contaminants in small systems, and the section
authorized $10 million to be appropriated for each of FY1999 through FY2003 to provide grants
to cover the costs of monitoring for small systems. All monitoring results are to be included in a
national drinking water occurrence data base created under the 1996 amendments.
National Drinking Water Advisory Council
Section 1446 established a National Drinking Water Advisory Council, composed of 15 members
(with at least two representing rural systems), to advise, consult, and make recommendations to
the Administrator on activities and policies derived from the act.
Federal Agencies
Section 1447 provides that any federal agency having jurisdiction over federally owned and
maintained public water systems must comply with all federal, state and local drinking water
requirements as well as any underground injection control programs. The President may exempt a
facility from compliance with a requirement if he determines it to be in the paramount interest of
the country to do so. Exemptions last one year, but additional exemptions may be granted.
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Assistance to Colonias17
Added in 1996, Section 1456 authorized the EPA and other appropriate federal agencies to award
grants to Arizona, California, New Mexico, and Texas to provide assistance (not more than 50%
of project costs) to colonias where the residents are subject to a significant health risk attributable
to the lack of access to an adequate and affordable drinking water system. Congress authorized
appropriations of $25 million for each of fiscal years 1997 through 1999.
Estrogenic Substances
Section 1457 authorized the EPA to use the estrogenic substances screening program created in
the Food Quality Protection Act of 1996 (P.L. 104-170) to provide for testing of substances that
may be found in drinking water if the Administrator determines that a substantial population may
be exposed to such substances.
Drinking Water Studies
Section 1458 directed the EPA to conduct drinking water studies involving subpopulations at
greater risk and biological mechanisms. EPA also was directed to conduct studies to support
specific regulations, including those for disinfectants and disinfection byproducts and
Cryptosporidium.
17
Colonias generally are described as unincorporated communities or housing developments on the U.S. side of the
U.S.-Mexico border that lack some or all basic infrastructure including plumbing and public water and sewer.
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Table 10. Major U.S. Code Sections of the Safe Drinking Water Act, as Amended
(Title XIV of the Public Health Service Act)
(codified generally at 42 U.S.C. 300f-300j-25)
42
U.S.C.
Section Title
Safe Drinking Water Act, as
Amended
Chapter 6A—Public Health Service
Subchapter XII—Safety of Public Drinking Water Systems
Part A—Definitions
300f
Definitions
Sec. 1401
Part B—Public Water Systems
300g
Coverage
Sec. 1411
300g-1
National drinking water regulations
Sec. 1412
300g-2
State primary enforcement responsibility
Sec. 1413
300g-3
Enforcement of drinking water regulations
Sec. 1414
300g-4
Variances
Sec. 1415
300g-5
Exemptions
Sec. 1416
300g-6
Prohibitions on the use of lead pipes, solder, and flux
Sec. 1417
300g-7
Monitoring of contaminants
Sec. 1418
300g-8
Operator certification
Sec. 1419
300g-9
Capacity development
Sec. 1420
Part C—Protection of Underground Sources of Drinking Water
300h
Regulations for state programs
Sec. 1421
300h-1
State primary enforcement responsibility
Sec. 1422
300h-2
Enforcement of program
Sec. 1423
300h-3
Interim regulation of underground injections
Sec. 1424
300h-4
Optional demonstration by states relating to oil and natural gas
Sec. 1425
300h-5
Regulation of state programs
Sec. 1426
300h-6
Sole source aquifer demonstration program
Sec. 1427
300h-7
State programs to establish wellhead protection areas
Sec. 1428
300h-8
State ground water protection grants
Sec. 1429
Part D—Emergency Powers
300i
Emergency powers
Sec. 1431
300i-1
Tampering with public water systems
Sec. 1432
300i-2
Terrorist and other intentional acts
Sec. 1433
300i-3
Contaminant prevention, detection, and response
Sec. 1434
300i-4
Supply disruption prevention, detection and response
Sec. 1435
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42
U.S.C.
Section Title
Safe Drinking Water Act, as
Amended
Part E—General Provisions
300j
Assurance of availability of adequate supplies of chemicals necessary
for treatment of water
Sec. 1441
300j-1
Research, technical assistance, information, training of personnel
Sec. 1442
300j-2
Grants for state programs
Sec. 1443
300j-3
Special project grants and guaranteed loans
Sec. 1444
300j-4
Records and inspections
Sec. 1445
300j-5
National Drinking Water Advisory Council
Sec. 1446
300j-6
Federal agencies
Sec. 1447
300j-7
Judicial review
Sec. 1448
300j-8
Citizen’s civil action
Sec. 1449
300j-9
General provisions
Sec. 1450
300j-11
Indian Tribes
Sec. 1451
300j-12
State revolving loan funds
Sec. 1452
300j-13
Source water quality assessment
Sec. 1453
300j-14
Source water petition program
Sec. 1454
300j-15
Water conservation plan
Sec. 1455
300j-16
Assistance to colonias
Sec. 1456
300j-17
Estrogenic substances screening program
Sec. 1457
300j-18
Drinking water studies
Sec. 1458
Part F—Additional Requirements to Regulate Safety of Drinking Water
300j-21
Definitions
Sec. 1461
300j-22
Recall of drinking water coolers with lead-lined tanks
Sec. 1462
300j-23
Drinking water coolers containing lead
Sec. 1463
300j-24
Lead contamination in school drinking water
Sec. 1464
300j-25
Federal assistance for state programs regarding lead contamination
in school drinking water
Sec. 1465
Note: This table shows only the major code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Solid Waste Disposal Act/Resource Conservation
and Recovery Act18
The Resource Conservation and Recovery Act of 1976 (RCRA) established the federal program
regulating solid and hazardous waste management. RCRA actually amends earlier legislation (the
Solid Waste Disposal Act of 1965), but the amendments were so comprehensive that the act is
commonly called RCRA rather than its official title.
The act defines solid and hazardous waste, authorizes EPA to set standards for facilities that
generate or manage hazardous waste, establishes a permit program for hazardous waste treatment,
storage, and disposal facilities, and authorizes EPA to set criteria for disposal facilities that accept
municipal solid waste. RCRA was last reauthorized by the Hazardous and Solid Waste
Amendments of 1984. The amendments set deadlines for permit issuance, prohibited the land
disposal of many types of hazardous waste without prior treatment, established criteria applicable
to municipal solid waste landfills, and established a new program regulating underground storage
tanks. The authorization for appropriations under this act expired September 30, 1988, but
funding for EPA’s programs in this area has continued; the act’s other authorities do not expire.
Table 11. Solid Waste Disposal Act/Resource Conservation and Recovery Act
and Major Amendments
(codified generally at 42 U.S.C. 6901-6992k)
Year
Act
Public Law Number
1965
Solid Waste Disposal Act
P.L. 89-272, Title II
1970
Resource Recovery Act of 1970
P.L. 91-512
1976
Resource Conservation and Recovery Act of 1976
P.L. 94-580
1980
Used Oil Recycling Act of 1980
P.L. 96-463
1980
Solid Waste Disposal Act Amendments of 1980
P.L. 96-482
1984
Hazardous and Solid Waste Amendments of 1984
P.L. 98-616
1986
Superfund Amendments and Reauthorization Act of 1986
1988
Medical Waste Tracking Act of 1988
P.L. 100-582
1992
Federal Facility Compliance Act of 1992
P.L. 102-386
1996
Land Disposal Program Flexibility Act of 1996
P.L. 104-119
2012
Hazardous Waste Electronic Manifest Establishment Act
P.L. 112-195
P.L. 99-499, Sec. 205
Background
Enacted in 1965 under Title II of the Clean Air Act of 1965, the Solid Waste Disposal Act focused
on research, demonstrations, and training. It provided for sharing with the states the costs of
making surveys of waste disposal practices and problems, and of developing waste management
18
Prepared by Linda Luther, Analyst in Environmental Policy, and Mary Tiemann, Specialist in Environmental Policy,
Environmental Policy Section, Resources, Science, and Industry Division.
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plans. The Resource Recovery Act of 1970 changed the whole tone of the legislation from
efficiency of disposal to concern with the reclamation of energy and materials from solid waste. It
authorized grants for demonstrating new resource recovery technology, and required annual
reports from EPA on means of promoting recycling and reducing the generation of waste.
The federal government embarked on a more active, regulatory role, embodied in the Resource
Conservation and Recovery Act of 1976. RCRA instituted the first federal permit program for
hazardous waste management programs and prohibited open dumps. Under the Hazardous and
Solid Waste Amendments of 1984 (HSWA), the federal government attempted to prevent future
cleanup problems by prohibiting land disposal of untreated hazardous wastes; setting liner and
leachate collection requirements for land disposal facilities; setting deadlines for closure of
facilities not meeting standards; and establishing a corrective action program to investigate and
clean up releases of hazardous wastes.
Waste Management Requirements
How a waste must be managed depends on whether it is a “solid waste” or a “hazardous waste.”
Hazardous wastes are regulated in accordance with federal standards. The management of nonhazardous solid waste is left primarily to individual states. RCRA defines solid waste broadly as
…any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but does not include solid or dissolved material
in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial
discharges which are point sources [regulated under the Clean Water Act]…or special
nuclear, or byproduct material as defined by the Atomic Energy Act.19
As ultimately determined by EPA, a solid waste becomes a hazardous waste20 in one of two
ways—it may be deemed hazardous because it exhibits certain hazardous characteristics
(ignitability, corrosivity, reactivity, or toxicity), or it may be deemed hazardous if EPA
specifically lists the waste as such.21 Hence, hazardous wastes are referred to as “characteristic”
or “listed” wastes.22
Hazardous Waste Management Requirements
If a waste is ultimately determined to be hazardous, then it may be subject to the requirements of
RCRA Subtitle C and the implementing regulations.23 Under Subtitle C, EPA has broad authority
to regulate hazardous waste from its generation to its ultimate disposal (and beyond, if disposal
19
See 42 U.S.C. §6903(27).
Hazardous waste is a subset of solid waste. A waste must first be determined to be a solid waste before it can meet
the definition of hazardous waste. Solid waste is further defined in the RCRA regulations at 40 C.F.R. Part 261.2.
Hazardous waste is defined at 40 C.F.R. Part 261.3.
21
See 42 U.S.C. 6921(a), and implementing regulations at 40 C.F.R Part 261, “Subpart B—Criteria for Identifying the
Characteristics of Hazardous Waste and for Listing Hazardous Waste.”
22
Criteria for listing hazardous waste are found at 40 C.F.R. Part 261.11; those identified waste are listed under 40
C.F.R. Part 261.31-261.33.
23
40 CFR Parts 260 through 268, Parts 270 to 279, and Part 124.
20
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leads to contamination of air, soil, or water). The rules governing every phase of the waste’s
management is often referred to as “cradle to grave.” Under Subtitle C’s requirements, EPA was
directed to
•
establish standards applicable to hazardous waste generators and transporters;
•
establish minimum national standards applicable to owners and operators of
hazardous waste treatment, storage, and disposal facilities (TSDFs);
•
establish a permit program applicable to TSDFs; and
•
establish criteria for states to administer and enforce their own hazardous waste
program.
With regard to hazardous waste generators, EPA established standards that include regulations
concerning record keeping and reporting, waste accumulation time limits, and storage
requirements, among other requirements.24 With regard to hazardous waste transporters, EPA
established standards that were coordinated by EPA with existing regulations of the Department
of Transportation.25
EPA was directed to establish design and operating standards for hazardous waste treatment,
storage, and disposal facilities (TSDFs), including standards for waste piles, landfills, and surface
impoundments.26 Under Subtitle C, land disposal of hazardous waste is prohibited unless the
waste is first treated to meet certain treatment standards or unless the waste is disposed in a unit
from which there will be no migration of hazardous constituents for as long as the waste remains
hazardous. Further, TSDFs regulated under Subtitle C are required to clean up any releases of
hazardous waste or constituents from solid waste management units at the facility, as well as
beyond the facility boundary, as necessary to protect human health and the environment. RCRA
Subtitle C also requires TSDFs to demonstrate that they have adequate financial resources (i.e.,
financial assurance) for obligations, such as closure, post-closure care, necessary cleanup, and
any liability from facility operations. TSDFs are required to operate in accordance with a permit
that incorporates all of the design and operating standards established by EPA rules.
EPA has primary responsibility for implementing the hazardous waste program. However, states
may seek to implement their own hazardous waste management programs (including the TSDF
permitting program).27 EPA will authorize states to implement a hazardous waste management
program that is at least as stringent as the federal program. Currently, EPA implements the
hazardous waste management program in Iowa, Alaska, Indian Country, and the territories, except
Guam. All other states implement their own programs, while EPA maintains oversight of them.
As EPA develops new regulations, a state-implemented program must be reviewed to determine
whether the state has authority to enforce comparable requirements.28 As a result, many states are
24
Regulations applicable to hazardous waste generators are listed under 40 C.F.R. Part 262. For more information, see
EPA’s “Hazardous Waste Generators” webpage at http://www.epa.gov/epawaste/hazard/generation/index.htm.
25
Regulations applicable to hazardous waste generators are listed under 40 C.F.R. Part 263.
26
42 U.S.C. §§6924-6925; the regulations implementing RCRA’s requirement to develop a hazardous waste permit
program and standards for owners and operators of hazardous waste treatment, storage, and disposal facilities are found
under 40 C.F.R. Parts 264 and 265.
27
42 U.S.C. §6926.
28
If the new EPA standard is less stringent than a state’s existing standard, the state may choose not to adopt it.
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also authorized to implement individual RCRA program elements that EPA promulgated after
1984 (e.g., Corrective Action, Landfill Disposal Restrictions, and Recycled Used Oil
Management Standards).29
Criminal violations of Subtitle C requirements are punishable by fines of as much as $50,000 for
each day of violation and/or imprisonment for as long as five years; knowingly endangering
human life brings fines of as much as $250,000 ($1 million for a company or organization) and as
long as 15 years imprisonment.
In cases not involving criminal conduct, the act authorizes civil and administrative penalties of as
much as $25,000 per day of violation. EPA is authorized both to issue administrative compliance
orders and to seek injunctive relief through the courts. Similar civil and administrative penalties
(but not criminal penalties) apply to violations of the underground storage tank requirements in
Subtitle I (discussed below).
As discussed above, RCRA in practice is largely enforced by state agencies exercising state
authority equivalent to the federal. EPA retains the power to undertake enforcement in such
authorized states, however: the act requires only that the Administrator give notice to the state in
which a violation has occurred prior to issuing an order or commencing a civil action.
RCRA also provides for citizen suits (discussed below, under “Solid Waste Management
Requirements”) both against persons and entities alleged to have violated standards or permit
requirements and against EPA in cases where the Administrator has failed to perform an action
that is nondiscretionary under the act.
Solid Waste Management Requirements
Solid wastes that are neither a listed nor a characteristic hazardous waste, or wastes that are not
specifically exempted from regulation as a hazardous waste, are regulated under Subtitle D of
RCRA. In contrast to its authority under Subtitle C, EPA’s authority to regulate solid waste
disposal under Subtitle D is limited. Instead, Subtitle D establishes state and local governments as
the primary planning, regulating, and implementing entities for the management of nonhazardous solid waste, such as household garbage and non-hazardous industrial solid waste.30
Under the authority of Sections 1008(a)(3) and 4004 of RCRA, EPA first promulgated “Criteria
for Classification of Solid Waste Disposal Facilities and Practices” (40 C.F.R. 257).31 These
regulations established minimum national performance standards necessary to ensure that “no
reasonable probability of adverse effects on health or the environment” will result from solid
waste disposal facilities or practices. Practices not complying with regulations specified under 40
C.F.R. 257 constitute “open dumping” and are prohibited under RCRA. EPA does not have the
authority to enforce that prohibition directly. Instead, states and citizens may enforce the
prohibition on open dumping using the citizen suit authority under RCRA (discussed below under
“Citizen Suits and Imminent Hazard Provisions”). EPA also may intervene if it is determined that
29
For information on the status of individual state programs and authorities, see EPA’s “RCRA State Authorization”
page, available online at http://www.epa.gov/epawaste/laws-regs/state/index.htm.
30
See EPA’s “Hazardous Waste: RCRA Subtitle D” website at http://www.epa.gov/region02/waste/dsummary.htm.
31
44 Federal Register 53438, September 13, 1979.
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waste disposal practices pose an imminent endangerment to human health or the environment
(also discussed below).
Under HSWA, EPA was required to revise its existing criteria for evaluating whether solid waste
management practices and facilities were conducting open dumping.32 Under HSWA, EPA was
directed to establish criteria applicable to solid waste management facilities that may receive
hazardous household waste and hazardous wastes from small quantity generators.33 Subsequently,
EPA promulgated “Criteria for Municipal Solid Waste Landfills” (at 40 C.F.R. 258). Those
regulations apply to landfills that receives household waste, that are not a “land application unit,
surface impoundment, injection well, or waste pile.”34 The requirements include location
restrictions, operation and design criteria (e.g., liner, leachate collection, run-off controls),
groundwater monitoring and corrective action requirements, closure and post-closure care, and
financial assurance criteria. EPA’s standards applicable to landfill operations (i.e., dry disposal
systems) specifically exclude requirements applicable to surface impoundments (i.e., liquid waste
ponds).
Also required under HSWA, states were directed to implement a permit program to assure that
solid waste management facilities that may receive municipal solid waste (MSW)35 complied
with the revised landfill criteria. EPA was authorized to determine the adequacy of the state
permit programs. Further, for states it determined did not have an adequate permit program, EPA
was provided with inspection and enforcement authority under of Subtitle C to enforce the
prohibition on open dumping.36
Requirements applicable to MSW landfills do not apply to non-hazardous commercial or
industrial waste landfills or construction and demolition waste landfills. Those disposal units are
subject to requirements applicable to open dumping that are regulated at the state level.
Under Subtitle D, solid waste provisions authorized under RCRA include financial and technical
assistance for states and local governments. However, most such assistance ended in FY1981 due
to overall budget cutbacks.
Citizen Suits and Imminent Hazard Provisions
As mentioned above, open dumping prohibitions, specified under the sanitary landfill regulations
(40 C.F.R. 257), are enforced by states or through citizen suits. Citizen suit provisions specified
under Section 7002 of RCRA allow for civil action against any entity that is alleged to be in
violation of any “permit, standard, regulation, condition, requirement, prohibition, or order.”37
32
Previously established under Sections 1008 and 4004 of RCRA.
“Small quantity generators” (SQGs) are a category of hazardous waste generators. As specified under Section
3001(d) of RCRA Subtitle C, SQGs are those that generate between 100 and 1,000 kilograms of hazardous waste
during a calendar month.
34
40 C.F.R. Part 258.2.
35
The term “municipal solid waste” is referred to in the regulations, but not RCRA itself. In the law, it is referred to as
“solid waste management facilities that may receive hazardous household waste or hazardous waste due to the
provision of section 3001(d) for small quantity generators.”
36
4542 U.S.C. §6972(c)(2).
37
42 U.S.C. §6972.
33
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Further, citizen suits are allowed where the disposal of any solid or hazardous waste may present
“an imminent and substantial endangerment to health or the environment.”38
In addition to citizen suit provisions, EPA is authorized to take action if past or present handling,
storage, treatment transportation, or disposal of any solid or hazardous wastes may present an
imminent and substantial endangerment to health or the environment.39 Under Section 7003 of
RCRA, EPA can initiate judicial action or issue an administrative order to any past or present
waste generator or owner of a disposal facility who has contributed or is contributing to the
disposal. Section 7003 is available for use in several situations where other enforcement tools
may not be available. For example, it can be used at sites and facilities that are not subject to
Subtitle C of RCRA or any other environmental regulation. Specifically, action may be initiated if
each of the following conditions is met:
•
Conditions may present an imminent and substantial endangerment to health or
the environment—such conditions generally require careful documentation and
scientific evidence. However, the endangerment standard under RCRA has
generally been broadly interpreted.
•
The potential endangerment stems from the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste.
•
The person has contributed or is contributing to such handling, storage,
treatment, transportation, or disposal.40
Under Section 7003, EPA may take action as deemed necessary, determined on a case-by-case
basis. Further, it gives EPA authority to obtain relevant information regarding potential
endangerments.
Underground Storage Tanks
To address a nationwide problem of leaking underground storage tanks (USTs), Congress
established a leak prevention, detection, and cleanup program through the 1984 RCRA
amendments and the 1986 Superfund Amendments and Reauthorization Act (SARA).
The 1984 RCRA amendments created a federal program to regulate USTs containing petroleum
and hazardous chemicals to limit corrosion and structural defects, and thus minimize future tank
leaks. The law directed EPA to set operating requirements and technical standards for tank design
and installation, leak detection, spill and overfill control, corrective action, and tank closure. The
UST program (RCRA Subtitle I) is administered primarily by states. It requires registration of
most underground tanks, bans the installation of unprotected tanks, sets federal technical
standards for all tanks, coordinates federal and state regulatory efforts, and provides for federal
inspection and enforcement.
38
42 U.S.C. §6972(a)(1)(B).
42 U.S.C. §6973.
40
For details on EPA’s Office of Enforcement and Compliance Assurance, see “Guidance on the Use of Section 7003
of RCRA,” October 1997, available at http://www.p2pays.org/ref/03/02645.pdf. For information on legal requirements
for initiating action under Section 7003, in particular, see pp. 9-19.
39
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In 1986, Congress created a petroleum UST response program by amending Subtitle I of RCRA
through SARA (P.L. 99-499). Prior to SARA, EPA lacked explicit authority to clean up
contamination from leaking underground petroleum tanks as Congress had specifically excluded
petroleum products (although not petrochemicals) from the Superfund law. The 1986 provisions
authorized the federal government to respond to petroleum spills and leaks, and created a Leaking
Underground Storage Tank (LUST) Trust Fund to fund cleanup of leaks from petroleum USTs in
cases where the UST owner or operator does not clean up a site. The LUST Trust Fund provides
money for EPA to administer the program and for states to oversee cleanups, take enforcement
actions, and undertake cleanups themselves when necessary. The money in the fund is derived
primarily from a 0.1 cent-per-gallon federal tax on motor fuels and several other petroleum
products.
The 1986 amendments also directed EPA to establish financial responsibility requirements for
UST owners and operators to cover costs of taking corrective action and to compensate third
parties for injury and property damage caused by leaking tanks. The law required EPA to issue
regulations requiring tank owners and operators selling petroleum products to demonstrate
minimum financial responsibility. The regulations require insurance coverage of $1 million, or
alternatively, owners and operators may rely on state assurance funds to demonstrate financial
responsibility.
The Energy Policy Act of 2005 (P.L. 109-58) included in Title XV, Subtitle B, The Underground
Storage Tank Compliance Act (USTCA). This act amended Subtitle I of the Solid Waste Disposal
Act to add new leak prevention and enforcement provisions to the UST regulatory program and
impose new requirements on states, EPA, and tank owners. The USTCA requires EPA, and states
that receive funding under Subtitle I, to conduct compliance inspections of all USTs at least once
every three years. It also requires states to comply with EPA guidance prohibiting fuel delivery to
ineligible tanks; develop training requirements for UST operators and individuals responsible for
tank maintenance and spill response; prepare compliance reports on government-owned tanks in
the state; and implement groundwater protection measures for UST manufacturers and installers.
The act also directed EPA to develop and implement a strategy to address UST releases on tribal
lands.
The USTCA authorized the appropriation of $155 million annually for FY2006 through FY2011
from the LUST Trust Fund for states to use to implement the new UST leak prevention
requirements and to administer state programs. Congress also authorized trust fund appropriations
of $200 million annually for FY2006 through FY2011, for EPA and states to administer the LUST
corrective action program, and another $200 million annually for FY2006 through FY2011,
specifically for addressing releases involving methyl tertiary butyl ether (MTBE) and other
oxygenated fuels (e.g., ethanol).
Promoting Recycling
Considering the prominence of the terms “Resource Conservation” and “Recovery” in the title of
the law itself, it would seem that requirements regarding waste recycling or reuse would be
significant elements of RCRA. In fact, requirements to recycle are largely absent from the law. As
a component in non-hazardous solid waste, decisions regarding recycling are left to states and
local governments.
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The role RCRA has played in promoting recycling has been through funding research,
development, and demonstration projects associated with solid waste management.41 However,
appropriations for most research projects have declined over time. Currently, a limited number of
solid waste grants are available for development or pilot projects that promote waste reduction,
recycled-content products, markets for recycled materials, or assist in the development of solid
waste management plans.
RCRA also promotes “closing the loop” on recycling by establishing a federal procurement
program.42 The goal of the program is to stimulate markets for recycled products by requiring
federal departments and agencies to “buy recycled.” EPA is required to designate products that
are or can be made with recovered materials, and to recommend practices for buying these
products. Once a product is designated, procuring agencies are required to purchase it with the
highest recovered material content level practicable. EPA subsequently published
“Comprehensive Procurement Guidelines” to assist federal agencies in meeting their procurement
requirements.43
Amendments to RCRA
RCRA has been amended several times. Some of those amendments were noncontroversial
additions clarifying portions of the law, correcting clerical errors in the text, or encouraging the
recycling of certain solid wastes. The more extensive sets of amendments were enacted in 1980,
1984, and 1992.
Solid Waste Disposal Act Amendments of 1980
The Solid Waste Disposal Act Amendments of 1980 amended RCRA in several ways. It was
intended, in part, to provide EPA with stronger enforcement authority to address illegal dumping
of hazardous waste. It also authorized funds to conduct an inventory of hazardous waste sites and
extended RCRA authorizations for appropriations through FY1982. Amending language
contained in Superfund, P.L. 96-510, established an Assistant Administrator for Solid Waste and
Emergency Response at EPA.
The 1980 amendments also included provisions that excluded the following large-volume wastes
from the definition of hazardous waste under Subtitle C of RCRA:
•
waste generated primarily from the combustion of coal or other fossil fuels;
•
solid waste from the extraction, beneficiation, and processing of ores and
minerals, including phosphate rock and overburden from the mining of uranium
ore;
•
cement kiln dust; and
•
wastes generated during the exploration, development, and production of crude
oil, natural gas, and geothermal energy.
41
Under RCRA Subtitle H—Research, Development, and Demonstration Information.
42 U.S.C. §6962.
43
For more information, see EPA’s Comprehensive Procurement Guidelines web page at http://www.epa.gov/
epawaste/conserve/tools/cpg/index.htm.
42
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At the time of the exclusion, these “special wastes” (as they were referred to by EPA) were
believed to pose less risk to human health and the environment than the wastes being identified
for regulation as hazardous waste. The amendments specified that the hazardous waste exclusion
would be held pending completion of a study and report to Congress by EPA for each waste
category. The subsequent regulatory timeline and the determination of the appropriate waste
management method for each category of special waste has been a complex and varied process.44
To date, special wastes largely have been regulated at the state level. However, a large spill of
coal combustion waste in December 2008 from a Tennessee Valley Authority facility in Kingston,
TN, heightened interest in the extent to this waste should be regulated under RCRA.45
To establish national standards intended to address risks associated with potential coal
combustion waste (CCW) mismanagement, on June 21, 2010, EPA proposed two regulatory
options to manage the waste. The first would draw on EPA’s existing authority to identify a waste
as hazardous and regulate it under the waste management standards established under Subtitle C
of the RCRA. The second option would establish regulations applicable to CCW disposal units
under RCRA’s Subtitle D solid waste management requirements. Under Subtitle D, EPA does not
have the authority to implement or enforce its proposed requirements. Instead, EPA would rely on
states or citizen suits to enforce the new standards.46 The public comment period on this
regulatory proposal closed on November 19, 2010. It received over 11,000 comments. EPA has
not indicated when a final rule may be issued.
The Used Oil Recycling Act of 1989
In an effort to encourage used oil recycling, and in recognition of its potential threat to public
health and the environment when reused or disposed of improperly, Congress enacted the Used
Oil Recycling Act in 1980 (P.L. 96-463). The act amended RCRA by requiring EPA to study the
hazards posed by used oil and to develop used oil management standards to protect human health
and the environment. Subsequently, EPA established recycling regulations for used oil that are
completely separate from the hazardous waste recycling standards (provisions under which used
oil may otherwise be regulated).
Since EPA’s used oil program is designed to encourage used oil recycling, the regulations include
a “recycling presumption.”47 This is an assumption that all used oil that is generated will be
recycled. The recycling presumption simplifies the used oil management system by enabling
handlers to only comply with the used oil regulations, instead of the hazardous waste regulations.
Only when the used oil is actually disposed of or sent for disposal must handlers determine
whether or not the used oil exhibits a characteristic of hazardous waste and manage it in
accordance with hazardous waste regulations.
44
For information on the regulatory status of each category of waste, see EPA’s Special Wastes website at
http://www.epa.gov/osw/nonhaz/industrial/special/index.htm.
45
For information on the status of regulatory proposals and related developments, see EPA’s Coal Combustion
Residuals website at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/index.htm
46
For a discussion of these and other related issues, see CRS Report R41341, EPA’s Proposal to Regulate Coal
Combustion Waste Disposal: Issues for Congress, by Linda Luther
47
Regulations that specify used oil management standards are found at 40 C.F.R. Part 279.
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Hazardous and Solid Waste Amendments of 1984
The most significant set of amendments to RCRA was the Hazardous and Solid Waste
Amendments of 1984 (HSWA), a complex law with many detailed technical requirements. In
addition to restrictions on land disposal, and the inclusion of small quantity generators (SQGs) in
the hazardous waste regulatory scheme that was summarized above, HSWA created the new
regulatory program for underground storage tanks (see the above “Underground Storage Tanks”
section of this report.) The amendments directed EPA to issue regulations governing those who
produce, distribute, and use fuels produced from hazardous waste, including used oil. Under
HSWA, hazardous waste facilities owned or operated by federal, state, or local government
agencies must be inspected annually, and privately owned facilities must be inspected at least
every two years. Each federal agency was required to submit to EPA an inventory of hazardous
waste facilities it ever owned.
The 1984 law also imposed on EPA a timetable for issuing or denying permits for TSDFs;
required permits to be for fixed terms not exceeding 10 years; terminated in 1985 the “interim
status” of land disposal facilities that existed prior to RCRA’s enactment, unless they met certain
requirements; required permit applications to be accompanied by information regarding the
potential for public exposure to hazardous substances in connection with the facility; and
authorized EPA to issue experimental permits for facilities demonstrating new technologies.
EPA’s enforcement powers were increased, the list of prohibited actions constituting crimes was
expanded, penalties were increased, and the citizen suit provisions were expanded. Other
provisions prohibited the export of hazardous waste unless the government of the receiving
country formally consented to accept it; created an ombudsman’s office in EPA to deal with
RCRA-associated complaints, grievances, and requests for information; and reauthorized RCRA
through FY1988 at a level of about $250 million per year.
HSWA also specified that owners or operators of TSDFs are responsible for investigating and, as
necessary, cleaning up releases at or from their facilities, regardless of when the releases
occurred. EPA refers to this cleanup of TSDFs under these statutory authorities as RCRA
Corrective Action.
Finally, HSWA called for a National Ground Water Commission to assess and report to Congress
in two years on groundwater issues and contamination from hazardous wastes. The commission
was never funded and never established, however.
Federal Facility Compliance Act of 1992
The third major set of amendments was the Federal Facility Compliance Act of 1992 (P.L. 102386), enacted in the 102nd Congress. This act specified in greater detail the extent to which federal
facilities are subject to enforcement actions under RCRA, and waived the federal government’s
sovereign immunity from prosecution under the statute. As a result, federal departments and
agencies can be subject to enforcement through injunctions, administrative orders, and/or
penalties for noncompliance. However, the limited ability of one federal agency to sue another
can, in practice, affect the extent to which EPA itself may enforce the requirements of the statute
against another federal agency. Furthermore, federal employees may be subject to criminal
sanctions, including both fines and imprisonment under any federal or state solid or hazardous
waste law. The act also contains special provisions applicable to mixtures of radioactive and
hazardous waste at Department of Energy facilities and to munitions, military ships, and military
sewage treatment facilities handling hazardous wastes.
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1996 Amendments
The 104th Congress enacted an additional set of amendments to RCRA, the Land Disposal
Program Flexibility Act (P.L. 104-119). This act exempts hazardous waste from RCRA
regulation if it is treated to a point where it no longer exhibits the characteristic that made it
hazardous, and is subsequently disposed in a facility regulated under the Clean Water Act or in a
Class I deep injection well regulated under the Safe Drinking Water Act. A second provision of
the bill exempted small landfills located in arid or remote areas from groundwater monitoring
requirements, provided there is no evidence of groundwater contamination.
Hazardous Waste Electronic Manifest Establishment Act
The 112th Congress enacted the Hazardous Waste Electronic Manifest Establishment Act (P.L.
112-195) that requires EPA to develop an electronic manifest system that would track the
shipment, transportation, and receipt of hazardous waste shipped from the site of generation to an
off-site facility for treatment, storage, disposal, or recycling. The act added a new Section 3024 to
Subtitle C of RCRA for this purpose and authorized appropriations of $2 million annually from
FY2013 though FY2015 for start-up activities to establish the manifest system. Thereafter, the
costs of administering the system would be offset by the collection of fees from users of the
system, which could include hazardous waste generators and transporters, and owners and
operators of hazardous waste treatment, storage, disposal, and recycling facilities. User fees are to
be deposited into a dedicated Hazardous Waste Electronic Manifest System Fund, and are subject
to discretionary appropriations prior to being made available to EPA.
Additional Selected Laws Affecting Solid Waste Management
Although not amending RCRA itself, Congress has enacted various solid/hazardous waste-related
measures, which are briefly summarized below.
Sanitary Food Transportation Act
The Sanitary Food Transportation Act of 1990 (P.L. 101-500) required the regulation of trucks
and rail cars that haul both food and solid waste (a problem commonly referred to as
“backhauling of garbage”). The act directed the Departments of Agriculture, Health and Human
Services, and Transportation to promulgate regulations specifying (1) record keeping and
identification requirements; (2) decontamination procedures for refrigerated trucks and rail cars;
and (3) materials for construction of tank trucks, cargo tanks, and ancillary equipment.
Clean Air Act
The Clean Air Act Amendments of 1990 (P.L. 101-549) contained a provision mandating
stronger federal standards for solid waste incinerators. The law requires EPA to issue new source
performance standards to control air emissions from municipal, hospital, and other commercial
and industrial incinerators. New facilities must comply with the EPA rules within six months of
the time they are issued, and existing units must comply within five years of issuance.
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Pollution Prevention Act
The Pollution Prevention Act of 1990 (Sections 6601-6610 of P.L. 101-508) was enacted as part
of the Omnibus Budget Reconciliation Act of 1990. The measure declared pollution prevention to
be the national policy, and directed EPA to undertake a series of activities aimed at preventing the
generation of pollutants, rather than controlling pollutants after they are created. Matching grants
were authorized for states to establish technical assistance programs for businesses, and EPA was
directed to establish a Source Reduction Clearinghouse to disseminate information. The act also
imposed new reporting requirements on industry. Firms that were required to file an annual toxic
chemical release form under the Emergency Planning and Community Right-to-Know Act of
1986 must also file a report detailing their source reduction and recycling efforts over the
previous year. A more detailed explanation of the act, which addresses air and water pollution as
well as waste, is provided elsewhere in this report.
Indian Lands Open Dump Cleanup Act
The Indian Lands Open Dump Cleanup Act of 1994 (P.L. 103-399) required the Indian Health
Service (IHS) to provide technical and financial support to inventory and close open dumps on
Indian lands, and to maintain the sites after closure. According to IHS, only two of more than 600
waste dumps on Indian lands met current EPA regulations prior to the law’s enactment.
Mercury-Containing and Rechargeable Battery Management Act
The 104th Congress enacted legislation (P.L. 104-142) exempting battery collection and
recycling programs from certain hazardous waste management requirements, prohibiting the use
of mercury in batteries, and requiring labels on batteries to encourage proper disposal and
recycling. By exempting battery collection and management programs from some parts of RCRA,
the law was expected to stimulate new recycling programs.
Table 12. Major U.S. Code Sections of the Solid Waste Disposal Act/
Resource Conservation and Recovery Act (RCRA)
(codified generally at 42 U.S.C. 6901-6992k)
42 U.S.C.
Section Title
Solid Waste Disposal
Act/RCRA, as Amended
Chapter 82—Solid Waste Disposal
Subchapter I—General Provisions
6901
Congressional findings
Sec. 1002
6902
Objectives and national policy
Sec. 1003
6903
Definitions
Sec. 1004
6904
Governmental cooperation
Sec. 1005
6905
Application of chapter and integration with other Acts
Sec. 1006
6906
Financial disclosure
Sec. 1007
6907
Solid waste management information and guidelines
Sec. 1008
Subchapter II—Office of Solid Waste; Authorities of the Administrator
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42 U.S.C.
Section Title
Solid Waste Disposal
Act/RCRA, as Amended
6911
Office of Solid Waste and Interagency Coordinating Committee
Sec. 2001
6912
Authorities of Administrator
Sec. 2002
6913
Resource Recovery and Conservation Panels
Sec. 2003
6914
Grants for discarded tire disposal
Sec. 2004
6914a
Labeling of lubricating oil
Sec. 2005
6915
Annual report
Sec. 2006
6916
General authorization
Sec. 2007
6917
Office of Ombudsman
Sec. 2008
Subchapter III—Hazardous Waste Management
6921
Identification and listing of hazardous waste
Sec. 3001
6922
Standards applicable to generators of hazardous waste
Sec. 3002
6923
Standards applicable to transporters of hazardous waste
Sec. 3003
6924
Standards applicable to owners and operators of hazardous waste
treatment, storage, and disposal facilities
Sec. 3004
6925
Permits for treatment, storage, or disposal of hazardous waste
Sec. 3005
6926
Authorized State hazardous waste programs
Sec. 3006
6927
Inspections
Sec. 3007
6928
Federal enforcement
Sec. 3008
6929
Retention of State authority
Sec. 3009
6930
Effective date
Sec. 3010
6931
Authorization of assistance to States
Sec. 3011
6932
Transferred to §6935
6933
Hazardous waste site inventory
Sec. 3012
6934
Monitoring, analysis, and testing
Sec. 3013
6935
Restrictions on recycled oil
Sec. 3014
6936
Expansion during interim status
Sec. 3015
6937
Inventory of Federal agency hazardous waste facilities
Sec. 3016
6938
Export of hazardous wastes
Sec. 3017
6939
Domestic sewage
Sec. 3018
6939a
Exposure information and health assessments
Sec. 3019
6939b
Interim control of hazardous waste injection
Sec. 3020
6939c
Mixed waste inventory reports and plan
Sec. 3021
6939d
Public vessels
Sec. 3022
6939e
Federally owned treatment works
Sec. 3023
6939g
Hazardous waste electronic manifest system
Sec. 3024
Subchapter IV—State or Regional Solid Waste Plans
6941
Objectives of subchapter
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42 U.S.C.
Section Title
Solid Waste Disposal
Act/RCRA, as Amended
6942
Federal guidelines for plans
Sec. 4002
6943
Requirements for approval of plans
Sec. 4003
6944
Criteria for sanitary landfills
Sec. 4004
6945
Upgrading of open dumps
Sec. 4005
6946
Procedure for development and implementation of State plan
Sec. 4006
6947
Approval of State plan; Federal assistance
Sec. 4007
6948
Federal assistance
Sec. 4008
6949
Rural communities assistance
Sec. 4009
6949a
Adequacy of certain guidelines and criteria
Sec. 4010
Subchapter V—Duties of Secretary of Commerce in Resource and Recovery
6951
Functions
Sec. 5001
6952
Development of specifications for secondary materials
Sec. 5002
6953
Development of markets for recovered materials
Sec. 5003
6954
Technology promotion
Sec. 5004
6955
Marketing policies, establishment; nondiscrimination requirement
Sec. 5005
6956
Authorization of appropriations
Sec. 5006
Subchapter VI—Federal Responsibilities
6961
Application of federal, state, and local law to federal facilities
Sec. 6001
6962
Federal procurement
Sec. 6002
6963
Cooperation with Environmental Protection Agency
Sec. 6003
6964
Applicability of solid waste disposal guidelines to Executive agencies
Sec. 6004
6966
Increased use of recovered mineral component in federally funded
projects involving procurement of cement or concrete
Sec. 6005
Use of granular mine tailings
Sec. 6006
6966a
6966b
Subchapter VII—Miscellaneous Provisions
6971
Employee protection
Sec. 7001
6972
Citizen suits
Sec. 7002
6973
Imminent hazard
Sec. 7003
6974
Petition for regulations; public participation
Sec. 7004
6975
Separability
Sec. 7005
6976
Judicial review
Sec. 7006
6977
Grants or contracts for training projects
Sec. 7007
6978
Payments
Sec. 7008
6979
Labor standards
Sec. 7009
6979a
Transferred to §6939b
6979b
Law enforcement authority
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42 U.S.C.
Section Title
Solid Waste Disposal
Act/RCRA, as Amended
Subchapter VIII—Research, Development, Demonstration, and Information
6981
Research, demonstration, training, and other activities
Sec. 8001
6982
Special studies; plans for research, development, and demonstrations
Sec. 8002
6983
Coordination, collection, and dissemination of information
Sec. 8003
6984
Full-scale demonstration facilities
Sec. 8004
6985
Special study and demonstration projects on recovery of useful energy
and materials
Sec. 8005
6986
Grants for resource recovery systems and improved solid waste
disposal facilities
Sec. 8006
6987
Authorization of appropriations
Sec. 8007
Subchapter IX—Regulation of Underground Storage Tanks
6991
Definitions and exemptions
Sec. 9001
6991a
Notification
Sec. 9002
6991b
Release detection, prevention, and correction regulations
Sec. 9003
6991c
Approval of state programs
Sec. 9004
6991d
Inspections, monitoring, testing, and corrective action
Sec. 9005
6991e
Federal enforcement
Sec. 9006
6991f
Federal facilities
Sec. 9007
6991g
State authority
Sec. 9008
6991h
Study of underground storage tanks
Sec. 9009
6991i
Operator training
Sec. 9010
6991j
Use of funds for release prevention and compliance
Sec. 9011
6991k
Delivery prohibition
Sec. 9012
6991l
Tanks on tribal lands
Sec. 9013
6991m
Authorization of appropriations
Sec. 9014
Subchapter X—Demonstration Medical Waste Tracking Program
6992
Scope of demonstration program for medical waste
Sec. 11001
6992a
Listing of medical wastes
Sec. 11002
6992b
Tracking of medical waste
Sec. 11003
6992c
Inspections
Sec. 11004
6992d
Enforcement
Sec. 11005
6992e
Federal facilities
Sec. 11006
6992f
Relationship to state law
Sec. 11007
6992g
Repealed (Report to Congress)
Sec. 11008
6992h
Health impacts report
Sec. 11009
6992i
General provisions
Sec. 11010
6992j
Effective date
Sec. 11011
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42 U.S.C.
6992k
Section Title
Solid Waste Disposal
Act/RCRA, as Amended
Authorization of appropriations
Sec. 11012
Note: This table shows only the major code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
Comprehensive Environmental Response,
Compensation, and Liability Act48
By the end of the 1970s, Congress had enacted several environmental laws to regulate sources of
pollution in the United States, but had not yet addressed responsibility for contamination resulting
from releases of pollutants into the environment. In the late 1970s, the discovery of severely
contaminated sites, such as “Love Canal” in New York and Times Beach in Missouri, raised
questions as to whether there should be a federal role in cleaning up environmental contamination
to protect the public from potential harm. Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA, P.L. 96-510) to authorize the
federal government to clean up contaminated sites in the United States and to make the
“potentially responsible parties” connected to those sites financially liable for the cleanup costs.
CERCLA created the Superfund program to carry out these authorities. The Environmental
Protection Agency (EPA) administers the program. Subsequent amendments to CERCLA also
authorized EPA to administer a separate grant program to support the cleanup of abandoned or
idled “brownfields” properties to encourage their redevelopment.
CERCLA established a broad liability scheme that holds both past and current owners and
operators of contaminated facilities financially responsible for the costs of cleanup. At waste
disposal sites, generators of the waste sent to the site for disposal, and transporters of the waste
who selected the site for disposal, also are responsible for the cleanup costs. If these potentially
responsible parties cannot be found or cannot pay for the cleanup, CERCLA authorizes the
federal government to finance the cleanup to ensure the protection of human health and the
environment. These costs borne by the federal government are referred to as “orphan shares.” The
broad liability scheme of CERCLA is intended to capture all parties that may have had some
involvement in the actions that resulted in contamination of the environment, in order to
minimize the burden of the costs of cleanup on the general taxpayer who had no involvement.
This approach to liability is based on the principle that polluters should be required to pay for the
environmental damage that they cause, often referred to as the “polluter pays principle.”
CERCLA established the Hazardous Substance Superfund Trust Fund to finance cleanup actions
taken by the federal government at contaminated sites where the potentially responsible parties
cannot pay or cannot be found. A combination of special taxes on industry and revenues from the
General Fund of the U.S. Treasury initially financed the Superfund Trust Fund, but the authority
to collect the industry taxes expired at the end of 1995. As the remaining revenues were expended
over time, Congress increased the contribution of general Treasury revenues in an effort to make
48
Prepared by David M. Bearden, Specialist in Environmental Policy, Environmental Policy Section, Resources,
Science, and Industry Division.
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up for the shortfall from the expired industry taxes. The availability of Superfund Trust Fund
monies to finance the cleanup of contaminated sites is subject to appropriations by Congress.
Considering the liability of the federal government as a potentially responsible party at its own
facilities, the cleanup of federal facilities is not funded with Superfund Trust Fund monies under
the Superfund program, but with other federal monies appropriated for other programs
administered by the agencies responsible for these facilities. The Department of Defense (DOD)
and the Department of Energy (DOE) administer the cleanup of most contaminated federal
facilities. EPA and the states are responsible for overseeing and enforcing the implementation of
CERCLA at federal facilities to ensure that applicable requirements are met.
To prioritize cleanup actions, CERCLA directed EPA to establish and maintain a National
Priorities List (NPL) of the most contaminated sites in the United States which present the
greatest risks to human health and the environment. The NPL includes both non-federal sites and
federal facilities that are deemed to present a sufficient level of risk to warrant listing. EPA may
require the potentially responsible parties to directly perform or pay for cleanup actions
themselves. Alternatively, EPA may clean up a contaminated site up-front with appropriated
Superfund monies and later recover those funds from the potentially responsible parties (with the
exception of the cleanup of federal facilities which must be funded up-front by the administering
agencies). In the event that the potentially responsible parties cannot pay or cannot be found,
appropriated Superfund monies may be used to pay the orphan shares of cleanup costs at a site,
under a cost-sharing agreement with the state in which the site is located.
The following sections summarize the major cleanup authorities of CERCLA and other relevant
provisions of the act. The topics discussed herein include the overall scope and reach of cleanup
actions authorized under the statute, the process under which cleanup actions are selected and
carried out at individual sites, the financial liability of potentially responsible parties for the costs
of cleanup actions, the Superfund Trust Fund that may pay for cleanup actions when the
potentially responsible parties cannot pay or cannot be found, enforcement of cleanup liability
against the potentially responsible parties to minimize the need for federal tax revenues to finance
the cleanup of contaminated sites, the applicability of CERCLA to federal facilities, and federal
assistance for the cleanup of brownfields properties. A more in-depth examination of these
statutory authorities is presented in CRS Report R41039, Comprehensive Environmental
Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and
Related Provisions of the Act, by David M. Bearden.
It should be emphasized that how and to what degree a specific contaminant at an individual site
must be cleaned up under CERCLA are not specified in the law itself. The specific actions that
are required to clean up contaminants at individual sites are determined on a site-by-site basis.
Although CERCLA established a general process for making cleanup decisions, more specific
direction is provided in EPA regulation and agency guidance. Other federal agencies that
administer the cleanup of federal facilities under CERCLA have developed additional guidance
documents that apply to their own respective facilities. Although the statutory authorities upon
which federal agencies have based their cleanup regulations and guidance are discussed in this
report, the content of these regulations and guidance is not examined here.
Major Amendments
Congress has amended CERCLA on numerous occasions to clarify the applicability of the
cleanup authorities of the statute, and to provide relief from liability for certain categories of
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parties who may not have been involved in actions that led to contamination, or who may have
contributed only certain quantities or types of waste to a site. Congress also has amended the
statute to authorize federal assistance for the cleanup of abandoned or idled “brownfields”
properties to encourage their redevelopment. Further, certain amendments have addressed unique
cleanup challenges at federal facilities, such as the cleanup of unexploded ordnance on
decommissioned military training ranges in the United States, and responsibility for the cleanup
of contaminated federal property when it is transferred out of federal ownership.
The Superfund Amendments and Reauthorization Act of 1986 (SARA, P.L. 99-499) clarified
that federal facilities are subject to the cleanup requirements of CERCLA to the same extent as
non-federal entities, and amended various response, liability, and enforcement provisions of the
law. The 1986 amendments also renewed the authorization of appropriations for EPA’s Superfund
program through FY1991, and established a separate Defense Environmental Restoration
Program within DOD to address contamination at active and decommissioned military facilities
in the United States. Sections 311 and 312 of the National Defense Authorization Act for FY2002
(P.L. 107-107) expanded the cleanup authorities of this program explicitly to include military
munitions and related contamination on decommissioned military training ranges and munitions
disposal sites in the United States.
Title VI of the Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508) extended the
authorization of appropriations for EPA’s Superfund program through FY1994, and Title XI of
that statute extended the authority to collect the special Superfund taxes on industry through
December 31, 1995. Although reauthorizing legislation has been introduced in various
Congresses, the taxing authority for the Superfund Trust Fund has not been renewed to date, nor
has the authorization of appropriations for EPA’s Superfund program been extended. Instead,
Congress has continued to fund the Superfund program primarily with general Treasury revenues
through the annual appropriations process. Congress has annually authorized and appropriated
funding for the Defense Environmental Restoration Program each year since its establishment.
Most of this funding is supported with general Treasury revenues, with the exception of some
revenues generated from the sale or lease of closed military bases which help fund their cleanup.
In 1992, the Community Environmental Response Facilitation Act (P.L. 102-426) amended the
federal facility provisions of CERCLA to facilitate the transfer of uncontaminated parcels of
surplus federal property on which hazardous substances or petroleum products were not released.
Section 334 of the National Defense Authorization Act for FY1997 (P.L. 104-201) further
amended CERCLA to allow the transfer of contaminated surplus federal property before cleanup
is complete, if certain assurances are provided to guarantee that the property will be cleaned up to
a level that would be suitable for its intended use after transfer.
Other amendments have attempted to address the fairness of the liability scheme of CERCLA,
either by limiting or eliminating the liability of certain categories of parties. In 1996, the Asset
Conservation, Lender Liability, and Deposit Insurance Protection Act (Subtitle E, Title II,
Division A of P.L. 104-208) amended CERCLA to protect certain fiduciaries and financial
lenders from liability. In 1999, the Superfund Recycling Equity Act (Title VI, Appendix I of P.L.
106-113) exempted generators and transporters of recyclable scrap materials from cleanup
liability under CERCLA, if the person who received the materials disposed of them instead and
the disposal resulted in contamination. There had been some concern that the potential liability of
generators and transporters under CERCLA could be a deterrent to recycling.
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In 2002, the Small Business Liability Relief and Brownfields Revitalization Act (P.L. 107-118)
provided relief from cleanup liability for (1) persons who contributed very small quantities of
waste or only municipal solid (i.e. non-hazardous) waste to a site, (2) owners of property that
became contaminated merely as a result of migration from a contiguous property owned by
another person, and (3) “bona fide” prospective purchasers who otherwise may be hesitant to
acquire a contaminated property because of potential cleanup liability once acquiring ownership.
The 2002 act also established more specific criteria for exempting “innocent” owners of
contaminated property from cleanup liability, if they purchased the property without knowledge
of the existing contamination and they had no involvement in actions that led to contamination.
Persons seeking an exemption from liability as a “bona fide” prospective purchaser, contiguous
property owner, or “innocent” landowner must have performed “all appropriate inquiry” into the
prior uses of the property before acquiring ownership, and must take “reasonable steps” after
acquiring ownership to prevent potentially harmful exposure to environmental contamination on
their properties. Consequently, such persons still may bear some responsibility, even though they
may be exempt from the more extensive liability scheme of CERCLA.
In addition to providing relief from liability for certain categories of parties, P.L. 107-118
authorized federal grants to assist in the cleanup of “brownfields” properties. Brownfields
properties typically are abandoned, underutilized, or idled sites where the known or suspected
presence of contamination, and the potential for cleanup liability, could be viewed as a deterrent
to purchase the property for redevelopment. Brownfields properties tend to be less contaminated
than sites listed on the NPL, but may need some cleanup to make them suitable for reuse. EPA
originally had established a program in 1993 to provide federal assistance for the cleanup of
brownfields properties using the general cleanup authorities of CERCLA as the legal basis for this
assistance. P.L. 107-118 provided explicit statutory authority for this purpose, and established a
separate Brownfields grant program within EPA, apart from the Superfund program.
Table 13 lists CERCLA as enacted in 1980 and the major amendments to the law noted above.
After a summary of the cleanup authorities of the statute presented in the following sections of
this report, Table 14 lists each section of CERCLA and other related laws, and the codification of
these provisions in the United States Code.
Table 13. Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and Major Amendments
(codified generally at 42 U.S.C. 9601-9675)
Year
Act
Public Law Number
1980
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980
P.L. 96-510
1986
Superfund Amendments and Reauthorization Act of 1986
P.L. 99-499
1990
Omnibus Budget Reconciliation Act of 1990
1992
Community Environmental Response Facilitation Act
1996
Asset Conservation, Lender Liability, and Deposit Insurance
Protection Act
1996
National Defense Authorization Act for Fiscal Year 1997
1999
Superfund Recycling Equity Act
Congressional Research Service
P.L. 101-508, Title VI, §6301, Title XI,
Subtitle B, Part IV, §11231
P.L. 102-426
P.L. 104-208, Division A, Title II, Subtitle E
P.L. 104-201, §334
P.L. 106-113, Appendix I, Title VI
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Year
Act
Public Law Number
2002
Small Business Liability Relief and Brownfields Revitalization
Act
P.L. 107-118
Federal Response Authorities
Section 104(a) of CERCLA specifically authorizes the President to respond to a release (or
substantial threat of a release) of a hazardous substance into the environment, or of a pollutant or
contaminant which may present an “imminent and substantial danger to the public health or
welfare.”49 As authorized by Section 115 of CERCLA,50 the President delegated the response
authorities of CERCLA to EPA and other federal agencies by executive order.51 EPA may respond
to releases within the inland zone, and the U.S. Coast Guard may respond to releases within the
coastal zone, which includes inland river ports and harbors, the Great Lakes, and U.S. coastal
waters. If a release were to occur at a federal facility, the agency that administers the facility is
authorized to take response actions, subject to oversight and enforcement by EPA and the state in
which the facility is located. Federal funding to carry out response actions under CERCLA is
subject to appropriations by Congress.
Notification of a release of a hazardous substance is the action that may trigger a federal response
under CERCLA. Section 103(a) requires the party responsible for a release to notify the National
Response Center if the quantity of the release exceeds the regulatory limit established for that
particular substance.52 These limits are referred to as “reportable quantities,” which are specified
in federal regulation.53 State or local officials, or members of the public, who observe or suspect a
release of a hazardous substance also may report the incident. Once a release is reported, the
National Response Center is to notify the appropriate federal agency that would be responsible
for carrying out the President’s response authorities under Section 104(a), and for taking any
federal enforcement actions that may be necessary against the parties responsible for the release.
Response actions taken under CERCLA most often entail cleanup activities involving the
containment, removal, or treatment of environmental contamination to prevent potentially
harmful exposure, but may include the temporary or permanent relocation of potentially exposed
individuals if warranted. Congress has excluded certain types of environmental contamination
from the response authorities of CERCLA, which may be addressed under other federal
environmental laws. These exclusions are provided within the statutory definitions of key terms
upon which the response authorities of CERCLA hinge, including the terms “hazardous
substance,” “pollutant or contaminant,” and “release.” In addition to these exclusions, Congress
has placed general limitations on the extent to which response actions may be taken under
CERCLA to address releases of hazardous substances, pollutants, or contaminants in certain
situations. In effect, these exclusions and limitations may restrict the applicability or scope of the
response authorities of CERCLA at a particular contaminated site.
49
42 U.S.C. §9604(a).
42 U.S.C. §9615.
51
Executive Order 12580, Superfund Implementation, January 23, 1987, 52 Federal Register 2923. Hereinafter,
references to Presidential authorities under CERCLA refer to those that have been delegated to EPA and other federal
agencies, unless noted otherwise.
52
42 U.S.C. §9603(a).
53
40 C.F.R. §302.4.
50
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Petroleum Exclusion and Related Oil Pollution Act Authorities
The response authorities of CERCLA do not extend to releases of petroleum. Section 101(14) of
CERCLA generally excludes releases of petroleum, including crude oil and any fraction thereof,
from the definition of a “hazardous substance” for the purposes of the statute. Section 101(33)
does the same for the definition of “pollutant or contaminant.” Petroleum releases are covered
instead by other statutes, which in effect serve as a complement or companion to the response
authorities of CERCLA. The Oil Pollution Act of 1990 (P.L. 101-380) is the primary federal law
that addresses releases of petroleum. The response authorities of the Oil Pollution Act are rooted
in Section 311(c) of the Clean Water Act, which authorizes federal actions to respond to releases
of petroleum into or on the navigable waters of the United States and adjoining shorelines.
Similar to the response authorities of CERCLA, EPA is the delegated lead for the cleanup of oil
spills that occur within the inland zone, and the U.S. Coast Guard leads the cleanup of oil spills
that occur within the coastal zone. Section 9003(h) of the Solid Waste Disposal Act provides
additional federal response authorities for petroleum leaked from underground tanks. In practice,
CERCLA has been applied to the cleanup of some wastes containing petroleum only if the wastes
also contained hazardous substances that were not part of the petroleum product itself.
Other Exclusions
Section 101(22) of CERCLA also excludes certain types of releases from the definition of the
term “release,” thereby removing such releases from the statute’s reach. A specific category of
nuclear materials is excluded from the definition of release, including “source, byproduct, or
special nuclear material” released from a nuclear incident or at certain uranium processing sites.
The disposal and cleanup of these materials are subject to the Atomic Energy Act and the
Uranium Mill Tailings Radiation Control Act. With the exception of these specific nuclear
materials, CERCLA generally applies to the release of radionuclides. In federal regulation, EPA
has designated several hundred radionuclides as hazardous substances that are subject to the
authorities of CERCLA. Section 101(22) also excludes three other types of releases from the
response authorities of CERCLA: (1) a release that would result in exposure solely within the
workplace; (2) emissions from engine exhaust of a motor vehicle, train, aircraft, vessel, or power
pumping station; and (3) the “normal” application of fertilizer.
Limitations on Response Actions
Section 104(a)(3) limits the extent to which actions may be taken under CERCLA to respond to
releases of hazardous substances, pollutants, or contaminants in certain situations. Response
actions generally may not be taken in situations involving (1) releases of naturally occurring
substances in their unaltered form; (2) releases from products (such as asbestos) that are part of a
residential, business, or community structure or building; or (3) releases into public or private
drinking water supplies due to deterioration of supply systems through ordinary use. However, in
the event of a public health or environmental emergency declared by the President, CERCLA
authorizes response actions to be taken under the statute in any of these three situations, if no
other person has the authority and capability to respond in a timely manner.
Prioritization of Response Actions
Section 105(a) of CERCLA requires the President to develop a National Priorities List (NPL) of
the most hazardous sites in the United States to prioritize response actions. The President has
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delegated this task to EPA. The NPL must be updated at least annually. Section 105(c) requires
the use of a Hazard Ranking System (HRS) to determine which sites warrant placement on the
NPL. The system scores each site based on certain factors, such as the quantity and nature of
hazardous substances; the likelihood of the migration of contamination in groundwater, surface
water, and air; and the proximity to human populations and sensitive environments. Because of
this range of factors, the severity of contamination alone may not necessarily be sufficient cause
to list a site on the NPL. For example, a geographically isolated site with substantial
contamination still may not score highly enough on the HRS to warrant placement on the NPL, if
the distance from human populations prevents the likelihood of exposure.
Section 105(a) of CERCLA also required the President to develop a National Hazardous
Substance Response Plan to establish procedures and standards for responding to releases of
hazardous substances, pollutants, and contaminants into the environment. The law directed the
President to incorporate these procedures and standards into the National Oil and Hazardous
Substances Pollution Contingency Plan (referred to as the National Contingency Plan for short, or
NCP). As delegated by the President, EPA promulgated the National Hazardous Substance
Response Plan in federal regulation as part of the NCP. These regulations govern any response
actions taken under CERCLA.
Scope of Response Actions
CERCLA authorizes two types of response actions: “removal” and “remedial” actions. These
terms are defined in Sections 101(23) and 101(24) of CERCLA respectively. Removal does not
necessarily mean the physical removal of contamination from the soil, surface water, or
groundwater, and remedial actions do not necessarily involve treatment of contamination. Rather,
both actions may involve various methods to prevent exposure to contamination, including the
relocation of potentially exposed individuals if warranted. It should be noted that the NCP allows
remedial actions to be financed with Superfund monies only at sites listed on the NPL, whereas
removal actions may be financed with Superfund monies at non-NPL sites to address emergency
situations. This restriction is intended to reserve Superfund monies for costlier remedial actions at
NPL sites that are thought to present the greatest risks. This funding restriction in the regulations
is based on the statutory requirement of Section 105(a) of CERCLA for EPA to prioritize
contaminated sites for the purpose of taking remedial actions.
Removal actions tend to be shorter term actions that address more immediate risks, whereas
remedial actions tend to be longer term actions that offer a more permanent solution. As such,
remedial actions often entail more extensive and costly measures. Because of the typically greater
extent and cost of remedial actions, they are subject to more in-depth review in the form of a
Remedial Investigation and Feasibility Study (RI/FS). An RI/FS involves an investigation of the
contamination to assess potential risks of exposure and a study of the feasibility of remedial
alternatives to address those risks. Remedial actions also are subject to public participation
requirements under Section 117 of CERCLA. (See the “Public Participation” section of this
report.) Removal actions are not subject to a similar degree of review or public comment because
of the perceived need for swifter response to address more immediate risks.
Section 104(c)(1) generally restricts the timing of removal actions funded with Superfund monies
to one year and the cost to $2 million, with exceptions provided in certain situations. For
example, a remedial action may exceed these limitations if the continuance of the removal action
would contribute to the remedial action planned at the site. These general timing and cost
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limitations on removal actions are intended to ensure that removal actions are not pursued on a
broader scale as a way to avoid the more in-depth review required of remedial actions.
However, CERCLA does not impose these limitations on a removal action funded by a
responsible party with its own funds, nor by a federal agency at a federal facility with dedicated
monies appropriated to that agency for that purpose apart from Superfund. From a practical
standpoint, imposing the above timing and cost limitations on removal actions at many federal
facilities administered by the Department of Defense and Department of Energy could constrain
the needed scope of removal actions, as cleanup challenges are often greater at these federal
facilities in comparison to non-federal sites.
Federal-State Cost Sharing
Section 104(c)(3) of CERCLA requires the state in which a non-federal NPL site is located to
agree to share the costs of remedial actions at that site, as a condition of obligating federal
Superfund monies to finance those actions. States are not responsible for sharing the costs of
cleanup at sites where the potentially responsible parties pay for the cleanup, including federal
facilities that are funded by the federal agencies that administer them. Rather, the federal
government and the states are to share the costs of assuming the responsibility for the orphan
shares of the cleanup costs, for which there are no viable parties to pursue.
This cost-sharing requirement in Section 104(c)(3) is intended to reduce the financial burden on
the federal taxpayer presented by the often long-term financial commitment involved in carrying
out a remedial action. Notably, CERCLA does not require states to agree to share the costs of
removal actions, which typically are less costly as a result of their smaller scope. Consequently,
federal Superfund monies may be used to finance the entire costs of removal actions.
At a site where the state must agree to share the costs of remedial actions as a condition of the
obligation of federal Superfund monies, the state first must provide certain assurances of its
financial commitments, specified in a binding contract or cooperative agreement with the federal
government. Absent such contract or agreement, federal Superfund monies are not available to
finance remedial actions at that site. To allow the obligation of federal Superfund monies to
commence the remedial actions, the state must agree to pay 10% of the costs of those actions. If
the site was owned or operated by the state, or a political subdivision of the state, at the time of
disposal, the state must agree to pay at least 50% of the costs of the remedial actions.
In addition to the above conditions, the state must agree to perform future maintenance of the
remedial actions for their expected operational life. The point of maintenance usually occurs after
any necessary construction is complete and the remedial action is operating as intended.
CERCLA authorizes a delay in the state’s responsibility for the maintenance of groundwater or
surface water remedies. Section 104(c)(6) allows a state to delay its maintenance responsibilities
for the first 10 years of the operation of such remedial actions. The statute allows a delay in the
state’s maintenance responsibility specifically for these types of actions to reduce the burden of
those costs on the state, as the cleanup of groundwater or surface water tends to be more costly
than other types of remediation. During the initial 10-year period, federal Superfund monies
instead can be used to pay the maintenance costs of groundwater or surface water remedies.
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Selection of Response Actions
Section 121(a) of CERCLA generally requires response actions at contaminated sites to achieve
acceptable levels of exposure that would be protective of human health and the environment.
Response actions also are to be cost-effective over both the short term and long term, including
the operation and maintenance of the action. Section 121(b) states a preference for the selection
of remedial actions that involve treatment to “permanently and significantly” reduce the “volume,
toxicity or mobility” of contamination, as opposed to actions that do not involve such treatment.
Actions not involving treatment often entail the containment of wastes on-site, or the removal and
disposal of wastes off-site. The containment of wastes on-site could present lingering health and
environmental risks if the containment method were to fail over time. If the remedial action
would result in wastes being left on-site, Section 121(c) requires the President to review the
performance of the remedial action every five years to determine whether that action continues to
be protective of human health and the environment. If the action is not functioning as intended,
the President may take additional remedial actions at the site to achieve the cleanup goal.
Although Section 121 includes certain requirements to govern the selection of remedial actions, it
does not specify how clean an individual site must be to protect human health and the
environment. Section 121 also does not identify the specific nature of the remedial actions that
would be required to attain a cleanup goal at an individual site. Instead, these cleanup decisions
are made on a site-by-site basis taking many factors into consideration, including the potential for
human exposure based on the anticipated land use, and the technical and economic feasibility of
cleanup alternatives to prevent exposure.
Cleanup Standards
The level of cleanup that is required can vary widely from site to site depending on the
contaminants present, the cleanup standards or criteria that apply to those contaminants, and the
response actions selected to attain those standards or criteria. Rather than specify standards or
criteria for individual hazardous substances, Section 121(d) of CERCLA broadly requires that
cleanup comply with applicable, relevant, and appropriate requirements (ARARs) to protect
human health and the environment. ARARs can include a host of federal or state standards,
requirements, or other criteria. In this sense, CERCLA functions as an “umbrella” statute under
which other statutes or regulations also may be applied to the cleanup of a contaminated site.
Section 121(d)(4) authorizes the waiver of a particular standard, if
•
the contemplated response action would be part of a larger remedial action that
would meet the standard once the larger action is completed;
•
compliance with the standard would result in a greater risk than the alternatives;
•
compliance with the standard would be technically impracticable from an
engineering perspective;
•
an equivalent standard of performance would be attained;
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•
in the case of a state standard, the state has not consistently applied that standard
elsewhere within its jurisdiction; or
•
meeting the standard would not provide a balance between the need for
protection of public health and welfare and the environment at the site under
consideration, and the availability of monies in the Superfund Trust Fund to
respond to more immediate risks at other sites.
Although CERCLA generally does not list specific standards that may apply to the cleanup of an
individual site, there are two sets of standards cited in Section 121(d) that broadly apply to the
selection of remedial actions at any site. First, the law requires remedial actions to achieve a level
of cleanup that would attain Maximum Contaminant Levels (MCLs) established for current or
potential sources of drinking water under the Safe Drinking Water Act. Second, remedial actions
must be consistent with other water quality criteria established under Sections 303 or 304 of the
Clean Water Act. However, the applicability of these sets of standards to an individual site
remains limited to circumstances in which the standards still are deemed “relevant and
appropriate,” consistent with the underlying premise of an ARAR.
State Participation
CERCLA authorizes a broad role for states to participate in the cleanup process. States must agree
to share in the costs of remedial actions at non-federal NPL sites as a condition of the obligation
of federal Superfund monies. In acknowledgment of their sharing of the costs of cleanup, Section
121(f) of CERCLA requires that states be afforded opportunities for “substantial and meaningful
involvement” in initiating, developing, and selecting remedial actions. However, there are certain
limitations on the involvement of states in cleanup decisions at federal facilities, as states do not
share in the costs of cleanup at these facilities. If a state wishes to challenge a remedial decision
of a federal agency at a facility which that agency administers, Section 121(f)(3) requires that the
state show that the decision of the agency is not supported by “substantial evidence.”
Public Participation
CERCLA also provides a role for the general public in commenting on the selection of remedial
actions at individual sites. This role is similar to that under many other federal laws that require
the opportunity for the public to comment on certain types of federal decisions. Section 117 of
CERCLA requires EPA, or other federal agency responsible for administering and funding the
cleanup of a contaminated site, to provide the public an opportunity to comment on proposals for
the selection of remedial actions. Once a final decision is made, public notice of the decision must
be provided, with an explanation of any “significant” differences from the proposed action and a
response to each “significant” public comment on the proposed action.
The opportunity for public comment required by Section 117 of CERCLA applies only to
decisions on remedial actions. Decisions on removal actions are not subject to these requirements
because of the presumed need for expedited action to address more immediate risks. In practice,
EPA and other federal agencies typically notify the public of the selection of removal actions to
inform communities of the nature and timing of such actions. To assist the public in
understanding technical information presented in cleanup decision documents, Section 117(e) of
CERCLA authorizes technical assistance grants of up to $50,000 for community groups. These
grants are available only to affected communities at sites listed on the NPL.
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Agency for Toxic Substances and Disease Registry
Section 104(i) of CERCLA established the Agency for Toxic Substances and Disease Registry
(ATSDR) primarily to assess potential health risks at NPL sites. The ATSDR assesses individual
sites based on the likelihood of human exposure to contamination through the air, soil, surface
water, groundwater, and other pathways such as consumption of contaminated food sources. The
purpose of these assessments is two-fold: to inform the public of potential health hazards at a
contaminated site, and to aid decision-makers in evaluating what cleanup actions may be
warranted to prevent potentially harmful exposure. Although the findings of the ATSDR may be
used to inform the selection of cleanup actions, the agency does not have any authority to dictate
cleanup decisions. In addition to site-specific assessments, Section 104(i) directs the ATSDR to
prepare toxicological profiles of hazardous substances commonly found at NPL sites to identify
potential health effects that can result from exposure.
Section 104(i) of CERCLA also authorizes the ATSDR to carry out several other functions
intended to protect public health. For example, the agency is authorized to provide medical care
and testing to individuals in the event of a public health emergency caused by, or believed to be
caused by, exposure to toxic substances. CERCLA does not provide any criteria as to what
constitutes a public health emergency for this purpose, presumably leaving the declaration of such
an emergency to the discretion of the ATSDR. As with other roles, the resources of the agency to
fulfill this role are subject to appropriations by Congress. To date, the ATSDR has not used its
authority under CERCLA to declare a public health emergency. In practice, the agency’s role has
focused on educating the public about known health risks from exposure to hazardous substances,
and assessing potential risks at individual sites to aid in informing cleanup decisions.
Financial Liability
Section 107 of CERCLA identifies the categories of potentially responsible parties connected
with a contaminated site who are liable for the costs of response actions that EPA deems
necessary to protect human health and the environment. Such parties also are liable for damages
for injury to, destruction of, or loss of natural resources resulting from a release of a hazardous
substance, including the costs of assessing such injury, destruction, or loss; and the costs of public
health assessments carried out by the ATSDR under Section 104(i) of CERCLA. The following
sections discuss the categories of parties who are liable under Section 107 of CERCLA, the reach
of liability, defenses to liability, and limitations on the liability of certain categories of parties.
Categories of Potentially Responsible Parties
Section 107(a) identifies four categories of potentially responsible parties who are liable for the
costs of response actions, natural resource damages, and public health assessments associated
with the release or threatened release of a hazardous substance:
•
any person who currently owns or operates a facility or vessel from which a
hazardous substance was released;
•
any person who at the time of disposal of a hazardous substance owned or
operated the facility at which such disposal occurred;
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•
any person who arranged for the disposal or treatment of a hazardous substance
(often referred to as a generator of waste), and any person who arranged for the
transport of a hazardous substance for disposal or treatment; and
•
any person who accepts or accepted a hazardous substance for transport to a
disposal or treatment facility, incineration vessel, or site selected by such person.
With respect to liability, financial responsibility for cleanup costs may extend to actions beyond a
facility boundary, if a hazardous substance were to migrate (i.e., move or spread) through the
environment. Section 101(8) of CERCLA defines the term “environment” to include not only the
land, but also surface water, groundwater, or ambient air. Consequently, cleanup actions may be
necessary not only on the facility where the initial release occurred, but anywhere the hazardous
substance may migrate through the environment. For example, hazardous substances that migrate
into groundwater or surface water can travel some distance, even miles, and can necessitate
cleanup actions across a larger area than where the release first occurred.
Reach of Liability
Over time, the courts have interpreted liability under Section 107 of CERCLA to be strict, joint
and several, and retroactive. This judicial interpretation is rooted in case law, legislative history,
and the definition of liability in Section 101(32) of CERCLA that applies the same standards of
liability as in Section 311 of the Clean Water Act.
•
Strict liability means that a party can be held liable regardless of whether the
conduct of that party was negligent.
•
Joint and several liability means that one or more of the liable parties can be held
responsible for the full cost of the cleanup at a site, regardless of the degree of
involvement in the contamination. However, Section 113(f)(1) of CERCLA
allows a party to seek recovery of some of its cleanup costs from other parties at
a site through contribution claims in court. In deciding such claims, a court is to
base the allocation of cleanup costs on “equitable factors.” In the event that a
party can show that the waste it sent to the site could not have contributed to the
contamination, joint and several liability is not to apply to that party.
•
Retroactive liability means that parties are liable for the cleanup of hazardous
substances released prior to the enactment of CERCLA on December 11, 1980.
However, Section 107(f)(1) extends liability for natural resource damages only to
releases that occurred on or after the enactment of CERCLA, which resulted in
injury to, destruction of, or loss of the natural resources.
It should be emphasized that the above description of the basic liability standards of CERCLA
merely offers a brief summary of the broad reach of the statute, as generally interpreted by the
courts over time. As such, this description does not examine the complexities of individual court
decisions on these matters. Since the enactment of CERCLA in 1980, well over one thousand
court decisions have interpreted these basic liability standards under the statute to determine the
financial responsibility of potentially responsible parties for the costs of cleanup. How a court
may view the cleanup liability of an individual party at any one site would depend on numerous
legal issues that are beyond the scope of the summary of CERCLA offered in this report.
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Defenses to Liability
Section 107(b) of CERCLA provides defenses to liability under certain circumstances. A party
cannot be held liable for the release or threatened release of a hazardous substance, and resulting
injury to, destruction of, or loss of natural resources, if that party can provide evidence that the
release or threatened release was caused solely by
•
an act of God;
•
an act of war;
•
an act or omission of a third party with whom the defendant has no contractual
relationship, if the defendant exercised due care with respect to the hazardous
substance and took precautions against foreseeable acts or omissions of that third
party and against the foreseeable consequences of such acts or omissions; or
•
any combination of these three circumstances.
The third party defense sometimes is characterized as the “innocent” landowner defense, in the
sense that it typically pertains to property owners who had no involvement in the actions that led
to the contamination. Section 101(35) of CERCLA defines the term contractual relationship for
the purpose of the third party defense, and specifies the conditions that a landowner must satisfy
to claim the lack of a contractual relationship connecting the owner to the contamination.
Limitations on Liability
To address the fairness of the liability scheme of CERCLA, Congress has amended Section 107
and other related provisions of the statute to limit, or in some cases eliminate, the liability of
certain categories of parties who may not have been involved in actions that resulted in
contamination, who may have contributed only very small quantities or less toxic wastes to a
contaminated site, or whose conduct Congress did not wish to discourage. These categories of
parties include
•
response action contractors who merely perform the work to clean up a
contaminated site, but who did not cause or otherwise contribute to the
contamination;
•
state and local governments that acquired contaminated property involuntarily
through bankruptcy, tax delinquency, abandonment, or other circumstances, and
did not cause or otherwise contribute to the contamination;
•
persons who only hold a contaminated property in a fiduciary capacity;
•
financial lenders who acquire financial interests or ownership of a contaminated
property through foreclosure;
•
generators and transporters of scrap materials intended for recycling, but instead
may have been disposed of by other persons;
•
persons who contributed only very small quantities of waste or only municipal
solid (i.e. non-hazardous) waste to a site;
•
service station dealers who only disposed of recycled oil that was not
contaminated with hazardous substances, and who fully complied with federal
regulations for managing the recycled oil;
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•
“innocent” landowners who purchased a property without knowledge of existing
contamination, with respect to the third party defense;
•
other “innocent” owners of property that became contaminated merely through
migration from a contiguous property where the initial release occurred; and
•
“bona fide” prospective purchasers who otherwise may be hesitant to acquire a
property on which contamination is known or suspected to be present, because of
the potential liability for cleanup upon acquiring ownership.
Hazardous Substance Superfund Trust Fund
CERCLA established the Hazardous Substance Superfund Trust Fund to provide a source of
funds for the federal government to finance the cleanup of contaminated sites where the
potentially responsible parties cannot pay or cannot be identified. This assumption of financial
responsibility for these “orphan shares” of cleanup costs is intended to ensure that the actions
necessary to protect human health and the environment are carried out. The availability of
Superfund Trust Fund monies to pay for the cleanup of orphaned sites is subject to appropriations
by Congress. Once appropriated, the availability of Superfund monies under EPA’s Superfund
program to pay for remedial actions is further subject to cost-sharing agreements with the states
in which the sites are located, as discussed in the “State Participation” section of this report.
Original Taxing Authority
The special taxing authority to finance the Superfund Trust Fund expired at the end of 1995.
Before this authority lapsed, three dedicated taxes on petroleum, chemical feedstocks (and
imported chemical derivatives), and corporate income provided most of the revenues for the
Superfund Trust Fund. Revenues from the General Fund of the U.S. Treasury also contributed to
the trust fund to augment the dedicated taxes, but these general tax revenues were a relatively
small portion of the total revenues to the trust fund during the time that the dedicated taxes were
collected through the end of 1995.
As originally enacted in 1980, Section 211(a) of CERCLA authorized the Superfund excise taxes
on petroleum and chemical feedstocks. Section 515(a) of the Superfund Amendments and
Reauthorization Act of 1986 expanded the reach of the chemical feedstocks tax to include
imported chemical derivatives. Prior to expiration at the end of 1995, the Superfund excise tax on
petroleum was 9.7 cents per barrel. The Superfund excise tax on chemical feedstocks and
imported chemical derivatives varied from $0.22 per ton to $4.87 per ton, depending on the
substance (with the exception of xylene which was taxed at a higher rate of $10.13 per ton in the
initial years of the tax until 1992.) Section 516(a) of the Superfund Amendments and
Reauthorization Act of 1986 established the special tax on corporate income to provide an
additional revenue stream for the Superfund Trust Fund. Prior to expiration in 1995, the
Superfund tax on corporate income (formally referred to as the Corporate Environmental Income
Tax) was 0.12% of corporate alternative minimum taxable income in excess of $2 million.
Congress created the Superfund taxes on petroleum and chemical feedstocks, based on the
broadly held assumption that much of the environmental contamination in the United States had
been caused as a result of industrial activities that involved these substances. The Superfund tax
on corporate income was intended to raise additional revenues from a wide range of businesses
that may have used or disposed of hazardous substances. However, some questioned the fairness
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of these taxes. Opponents highlighted that the income tax captured all businesses that met the
income threshold, regardless of whether a business used or disposed of hazardous substances.
Opponents also noted that not all petroleum and chemical companies were necessarily involved in
actions that led to contamination.
The appropriateness of the Superfund tax on petroleum was especially controversial in light of the
exclusion of petroleum from the cleanup authorities of CERCLA. Because of this exclusion,
monies from the Superfund Trust Fund have paid for the cleanup of petroleum contamination
only if the contamination includes hazardous substances that are not part of the petroleum product
itself. Congress has established other trust funds to address releases of petroleum. Title V of the
Superfund Amendments and Reauthorization of 1986 created the Leaking Underground Storage
Tank Trust Fund to pay for actions to respond to petroleum released from underground tanks.
Title VIII of the Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509) created the Oil Spill
Liability Trust Fund to pay for actions to respond to surface releases of petroleum.
Current Source of Revenues
After the authority to collect the Superfund taxes expired, the remaining revenues from these
taxes were expended by the end of FY2003, leaving revenues from the General Fund of the U.S.
Treasury as the main source of monies for the Superfund Trust Fund. Although the Superfund
taxes have expired, industry has continued to provide some of the funding for the trust fund via
corporate income taxes that contribute to the General Fund. (Revenues to the General Fund
consist of corporate income taxes, individual income taxes, and miscellaneous federal receipts
and collections that are not dedicated to specific federal trust funds.)
In addition to general Treasury revenues, others sources of monies have continued to contribute
some revenues to the Superfund Trust Fund. Cleanup costs borne by the federal government that
are later recouped from the potentially responsible parties are deposited into the trust fund
(referred to as cost recoveries). These recouped funds can be made available for the cleanup of
other sites where the potentially responsible parties cannot pay or cannot be found. Fines and
penalties assessed against potentially responsible parties for violations of CERCLA are deposited
into the trust fund as well. Interest also accrues on the trust fund balance. Collectively, these
monies have been relatively small compared to the amount of general Treasury revenues that now
support most of the trust fund. However, these other sources of monies do continue to help
finance the trust fund, and to some extent reduce the need for general Treasury revenues at sites
where the potentially responsible parties cannot be found or cannot pay.
Enforcement Mechanisms
There are three mechanisms through which the federal government can take actions to enforce
cleanup liability under CERCLA, if the potentially responsible parties can be identified and have
the financial capability to pay. These mechanisms include judicial or administrative orders under
Section 106 of the statute requiring potentially responsible parties to perform cleanup actions,
cost-recovery actions under Section 107 to recoup expenditures of Superfund monies from the
potentially responsible parties for cleanup actions performed by the federal government, and
voluntary settlement agreements with the potentially responsible parties under Section 122 to
perform or pay for cleanup actions. Like the response authorities of CERCLA, these enforcement
authorities are presidential authorities. As discussed earlier in this report, a 1987 executive order
delegated the President’s response authorities under CERCLA to EPA and other federal agencies.
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This order also delegated the enforcement of the statute to EPA at sites on the land, and to the
U.S. Coast Guard within inland river ports and harbors, the Great Lakes, and U.S. coastal waters.
These agencies have the discretion to use any of the above mechanisms available under the law to
enforce the cleanup liability of potentially responsible parties. In practice, the agencies typically
attempt to negotiate voluntary settlement agreements with the potentially responsible parties first,
and usually turn to the use of Section 106 orders or Section 107 cost-recovery actions when a
negotiated settlement appears unlikely. Under a negotiated settlement, the agencies may take a
party’s ability to pay into consideration when determining that party’s share of the cleanup costs.
In the negotiation process, the party seeking the reduction must submit financial information to
document whether its ability to pay may in fact be limited. The decision of the enforcing agency
as to whether a reduced settlement is warranted is not subject to judicial review. However, a party
only can pay for the cleanup to the extent it is indeed capable, to the point of bankruptcy.
Reducing a party’s share of the cleanup costs based on its ability to pay is intended to avoid such
financial outcomes as a consequence of cleanup liability.
Although EPA and the U.S. Coast Guard are responsible for enforcing cleanup liability, Section
310 of CERCLA authorizes citizens to challenge the adequacy of a cleanup action in court. The
timing of a citizen suit for these purposes is limited under other provisions of the statute. Section
113(h)(4) of CERCLA does not permit a citizen suit to be brought for violation of a cleanup
requirement until the selected cleanup action at a site is completed. Further, a citizen suit may not
be brought with regard to a removal action at a site where a remedial action is planned. These
limitations on the timing of citizen suits are intended to allow the complete implementation of
cleanup actions planned at a site, prior to subjecting the adequacy of those actions to judicial
review to assess their compliance with CERCLA.
Federal Facilities
After CERCLA was enacted in 1980, questions arose as to whether Congress intended federal
facilities owned and operated by the United States government to be subject to the cleanup
requirements and liability provisions of the statute. As originally enacted, CERCLA was silent on
this matter. Section 120 of the Superfund Amendments and Reauthorization Act of 1986 added
Section 120 to CERCLA to clarify that federal facilities are subject to the cleanup requirements of
the statute to the same extent as other entities, including the liability and enforcement provisions
of the law. To comply with CERCLA, the federal agency with administrative jurisdiction over a
facility is responsible for administering and paying for the cleanup of contamination out of its
own budget, subject to appropriations by Congress.
Section 111(e) of CERCLA explicitly prohibits the use of Superfund Trust Fund monies to clean
up federal facilities, as these monies are dedicated to paying for the cleanup of sites where the
potentially responsible parties cannot be identified or cannot pay. However, Section 111(e)(3)
does allow the use of Superfund Trust Fund monies at an individual federal facility to provide
alternative water supplies, if groundwater contamination has migrated beyond the boundary of
that facility, and there are other potentially responsible parties connected to that facility in
addition to the United States. In all other instances, Superfund Trust Fund monies are not
available for the cleanup of federal facilities.
As noted earlier in this report, the vast majority of contaminated federal facilities are
administered by DOD and DOE. Congress has established dedicated appropriations accounts for
each of these departments that are intended to fulfill the financial liability of the United States for
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the cleanup of the facilities that they administer. Section 211 of the Superfund Amendments and
Reauthorization Act of 1986 specifically authorized a Defense Environmental Restoration
Program within DOD to administer the cleanup of active and decommissioned military
installations in the United States. Sections 311 and 312 of the National Defense Authorization Act
for FY2002 (P.L. 107-107) expanded DOD’s cleanup authorities to include unexploded
ordnance, discarded munitions, and munitions constituents (i.e., hazardous substances leached
from munitions into the environment) on decommissioned training ranges and munitions disposal
sites in the United States. Although Congress has not enacted similarly explicit cleanup program
authorities for DOE, the department administratively established an Office of Environmental
Management in 1989 to consolidate its cleanup efforts under CERCLA and other related statutory
authorities, such as the Atomic Energy Act which governs the disposal of radioactive wastes.
EPA and the states play a role in overseeing and enforcing the implementation of CERCLA at
federal facilities administered by DOD and DOE under the above programs, as well as other
contaminated federal facilities administered by other agencies. Section 120(e) of CERCLA
explicitly requires EPA to take the lead in overseeing the cleanup of federal facilities listed on the
NPL, but Section 120(f) of the statute allows states and local governments to participate in
cleanup decisions. The states play a more prominent role in overseeing the cleanup of federal
facilities not listed on the NPL. While CERCLA authorizes EPA and the states to oversee the
cleanup of federal facilities, certain provisions of the law can limit their ability to direct or dictate
how the cleanup process may be carried out at a federal facility.
For example, Section 120(e)(4)(A) of CERCLA gives EPA final decision-making authority to
select remedial actions at federal facilities listed on the NPL, but does not explicitly authorize
EPA to direct the schedule of performing those actions, nor how those actions are to be operated
and maintained over the long term to ensure their performance. These latter elements of the
cleanup process at federal facilities would appear to be subject to negotiation among the agencies.
Further, EPA’s enforcement of cleanup requirements at federal facilities through court actions is
complicated by the limited ability of one federal agency to sue another. With respect to the
participation of states and local governments, Section 120(f) of CERCLA requires the opportunity
to be involved in cleanup decisions, but does not give states and local governments decisionmaking authority similar to EPA’s authority at federal facilities on the NPL. In practice, these
limitations may restrict the extent to which EPA, the states, and local governments may oversee
the cleanup of federal facilities, even though Section 120 of CERCLA does require federal
facilities to comply with cleanup requirements to the same extent as other entities.
National Security Exemption
Although Section 120 of CERCLA clarified the applicability of the statute to federal facilities,
Section 120(j) authorized the President to exempt an individual federal facility from a
requirement of CERCLA on a case-by-case basis if the exemption would be necessary to protect
national security. This exemption is intended to prevent situations in which a federal facility may
become unavailable for purposes essential to protecting national security, if carrying out a
specific cleanup action somehow may interfere with those purposes. Section 120(j) specifically
authorizes the President to exempt a federal facility administered by DOD or DOE from
compliance with an individual requirement of CERCLA, if the President deems such an
exemption necessary to protect national security.
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The President must notify Congress within 30 days of the issuance of an exemption and explain
the reason for it. The time period of an exemption initially is limited to one year, but the President
may renew it annually with notification to Congress. Historically, a national security exemption
under Section 120(j) of CERCLA has not been invoked at any facility that DOD or DOE
administers. Instead, contaminated facilities of both departments generally have been subject to
the cleanup requirements of CERCLA. DOD and DOE have been responsible for carrying out
these requirements at their respective facilities under the programs discussed above, with
appropriations by Congress. However, there have been disagreements at some facilities as to what
requirements may be applicable to their cleanup, and how certain requirements that are deemed
applicable are to be satisfied to ensure the protection of human health and the environment.
Brownfields Properties
In 1993, EPA established an element within the Superfund program to assist communities with
the cleanup of certain lower risk sites that did not warrant placement on the NPL, but at which
cleanup was desired to encourage economic redevelopment. The purpose of the program was to
provide federal financial assistance for the cleanup of properties referred to as “brownfields.”
These properties typically are abandoned, idled, or underutilized, and on which known or
suspected contamination is perceived as a deterrent to redevelopment by prospective purchasers
who may be hesitant about becoming liable for cleanup once acquiring ownership.
EPA initially used Superfund appropriations to provide “seed monies” to communities in the form
of grants and loans to aid them in financing certain types of cleanup actions. Although there was
broad support for this effort, some questioned EPA’s authority under CERCLA to use Superfund
monies for the cleanup of these lower risk sites that were not listed on the NPL and that did not
appear to warrant emergency removal actions under the Superfund program. Still, in the annual
appropriations process, Congress set aside funding for brownfields cleanup assistance within the
Superfund account for several years without specifically amending CERCLA for this purpose.
In the 107th Congress, Subtitle A and Subtitle C of Title II of the Small Business Liability Relief
and Brownfields Revitalization Act of 2002 (P.L. 107-118, hereinafter referred to as the
“Brownfields Act”) amended CERCLA to provide explicit statutory authority for EPA to
administer a Brownfields program separately from the Superfund program. The Brownfields Act
authorized appropriations for this new program apart from appropriations for the Superfund
account. There had been some concern about the diversion of Superfund appropriations away
from addressing the greater human health and environmental risks at NPL sites. Still, the portion
of Superfund appropriations that had been spent on the cleanup of brownfields properties was
relatively small compared to the total appropriation.
The program explicitly authorized in the Brownfields Act is similar in scope to the program that
EPA had established in 1993, with the exception that the Brownfields Act allowed federal
financial assistance for the cleanup of contamination resulting from releases of petroleum. As
discussed earlier in the “Federal Response Authorities” section of this report, CERCLA otherwise
does not apply to the cleanup of petroleum. The Brownfields Act also created two separate types
of grants within the Brownfields program. One provides more direct financial assistance for the
assessment and cleanup of individual properties. The other provides financial assistance to states
and Indian tribes to aid them in carrying out their own cleanup programs, which in turn may assist
in the cleanup of individual properties. In addition to these grant programs, Congress has enacted
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certain federal tax incentives through the Internal Revenue Code, which are intended to
encourage the cleanup of brownfields properties.
Table 14 lists each section of CERCLA, as codified primarily in Title 42 of the United States
Code. The table also includes sections codified in Title 26 of the United States Code—Internal
Revenue Code—pertaining to Superfund taxes and the Superfund Trust Fund. Relevant sections
of Title 10 of the United States Code—Armed Forces—also are identified in the table with
respect to the specific cleanup authorities of the Defense Environmental Restoration Program,
which is to be implemented consistent with the requirements of CERCLA.
Table 14. Major U.S. Code Sections of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), as Amended, and Related Acts
(codified at 42 U.S.C. 9601-9675; 26 U.S.C. 4611,4661, 4671, 59A, 9507; 10 U.S.C. 2700-2710)
U.S.C.
Section Title
CERCLA, as Amended,
and Related Acts
42 U.S.C.
Chapter 103—Comprehensive Environmental Response, Compensation, and Liability
Subchapter 1—Hazardous Substances Releases, Liability, Compensation
9601
Definitions
Sec. 101
9602
Designation of additional hazardous substances and
establishment of reportable released quantities; regulations
Sec. 102
9603
Notification requirements respecting released substances
Sec. 103
9604
Response authorities
Sec. 104
9605
National Contingency Plan
Sec. 105
9606
Abatement actions
Sec. 106
9607
Liability
Sec. 107
9608
Financial responsibility
Sec. 108
9609
Civil penalties and awards
Sec. 109
9610
Employee protection
Sec. 110
9611
Uses of fund
Sec. 111
9612
Claims procedure
Sec. 112
9613
Civil proceedings
Sec. 113
9614
Relationship to other law
Sec. 114
9615
Presidential delegation and assignment of duties or powers and
promulgation of regulations
Sec. 115
9616
Schedules
Sec. 116
9617
Public participation
Sec. 117
9618
High priority for drinking water supplies
Sec. 118
9619
Response action contractors
Sec. 119
9620
Federal facilities
Sec. 120
9621
Cleanup standards
Sec. 121
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U.S.C.
Section Title
CERCLA, as Amended,
and Related Acts
9622
Settlements
Sec. 122
9623
Reimbursement to local governments
Sec. 123
9624
Methane recovery
Sec. 124
9625
Section 6921(b)(3)(A)(i) Waste
Sec. 125
9626
Indian tribes
Sec. 126
9627
Recycling transactions
Sec. 127
9628
State response programs
Sec. 128
Subchapter II—Hazardous Substance Response Revenue
Part A—Hazardous Substance Response Trust Fund
9631
Repealed (Establishment of Hazardous Substance Response
Trust Fund)
Sec. 221
9632
Repealed (Liability of United States limited to the amount in
trust fund)
Sec. 222
9633
Repealed (Administrative procedures)
Sec. 223
Part B—Post-Closure Liability Trust Fund
9641
Repealed (Post Closure Liability Trust Fund)
Sec. 232
Subchapter III—Miscellaneous Provisions
9651
Reports and studies
Sec. 301
9652
Effective dates; savings provision
Sec. 302
9653
Repealed (Termination of authority to collect taxes)
Sec. 303
9654
Applicability of federal water pollution control funding, etc.,
provisions
Sec. 304
9655
Legislative veto of rule or regulation
Sec. 305
9656
Transportation of hazardous substances; listing as hazardous
material; liability for release
Sec. 306
9657
Separability; contribution
Sec. 308
9658
Actions under state law for damages from exposure to
hazardous substances
Sec. 309
9659
Citizen suits
Sec. 310
9660
Research, development, and demonstration
Sec. 311
9660a
Grant program
9661
Love canal property acquisition
9662
Limitation on contract and borrowing authority
P.L. 99-499, Sec. 126(g)
Sec. 312
P.L. 99-499, Sec. 3
Subchapter IV—Pollution Insurance
9671
Definitions
Sec. 401
9672
State laws; scope of chapter
Sec. 402
9673
Risk retention groups
Sec. 403
9674
Purchasing groups
Sec. 404
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U.S.C.
9675
Section Title
Applicability of securities laws
CERCLA, as Amended,
and Related Acts
Sec. 405
26 U.S.C.
Subtitle A—Income Taxes
Chapter 1—Normal Taxes and Surtaxes
Subchapter A—Determination of Tax Liability
59A
Environmental tax
P.L. 99-499, Sec. 516(a)
Subtitle D—Miscellaneous Excise Taxes
Chapter 38——Environmental Taxes
Subchapter A—Tax on Petroleum
4611
Imposition of tax
Sec. 211(a)
Subchapter B—Tax on Certain Chemicals
4661
Imposition of tax
Sec. 211(a)
Subchapter C—Tax on Certain Imported Substances
4671
Imposition of tax
P.L. 99-499, Sec. 515(a)
Subtitle I—Trust Fund Code
Chapter 98—Trust Fund Code
Subchapter A—Establishment of Trust Funds
9507
Hazardous Substance Superfund
P.L. 99-499, Sec. 517(a)
10 U.S.C.
Subtitle A—General Military Law
Part IV—Service, Supply, and Procurement
Chapter 160—Environmental Restoration
2700
Definitions
P.L. 99-499, Sec. 211(a)
2701
Environmental restoration program
P.L. 99-499, Sec. 211(a)
2702
Research, development, and demonstration program
P.L. 99-499, Sec. 211(a)
2703
Environmental restoration accounts
P.L. 99-499, Sec. 211(a)
2704
Commonly found unregulated hazardous substances
P.L. 99-499, Sec. 211(a)
2705
Notice of environmental restoration activities
P.L. 99-499, Sec. 211(a)
2706
Annual reports to Congress
P.L. 99-499, Sec. 211(a)
2707
Environmental restoration projects
P.L. 107-314, Sec. 313
2708
Contracts for handling hazardous waste from defense facilities
P.L. 102-190, Sec. 331
2709
Investment control process for environmental technologies
P.L. 106-65, Sec. 323
2710
Inventory of unexploded ordnance, discarded military
munitions, and munitions constituents at defense sites (other
than operational ranges)
P.L. 107-107, Sec. 311
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Emergency Planning and Community
Right-to-Know Act54
The Emergency Planning and Community Right-to-Know Act (EPCRA, codified at 42 U.S.C.
11001-11050) was enacted in 1986 as Title III of the Superfund Amendments and Reauthorization
Act (P.L. 99-499). EPCRA established state commissions and local committees to develop and
implement procedures for coping with releases of hazardous chemicals, and mandated annual
reporting to government officials on environmental releases of such chemicals by the facilities
that manufacture or use them in significant amounts. EPA facilitates planning, enforces
compliance when necessary, and provides public access to information about environmental
releases of toxic chemicals.
Subtitle A—Emergency Planning and Notification
EPCRA established a national framework for EPA to mobilize local government officials,
businesses, and other citizens to plan ahead for possible chemical accidents in their communities.
Subtitle A requires local planning to respond to sudden releases of chemicals that might occur in
the event of a spill, explosion, or fire. It is intended to ensure that responsible officials will know
what hazardous chemicals are used or stored by local businesses and will be notified quickly in
the event of an accident.
Under Section 301, each state is required to create a State Emergency Response Commission
(SERC), to designate emergency planning districts, and to establish local emergency planning
committees (LEPCs) for each district. Section 302 requires EPA to list extremely hazardous
substances and to establish threshold planning quantities for each substance. Originally, Congress
defined chemicals as “extremely hazardous substances” if they appeared on a list EPA published
in November 1985 as Appendix A in “Chemical Emergency Preparedness Program Interim
Guidance.” However, EPA has authority to revise the list, and the threshold quantities of
chemicals. Based on listing criteria, the intent appears to be to include only chemicals in
quantities that could harm people exposed to them for only a short period of time. The law directs
each facility to notify the LEPC for its district if it stores or uses any “extremely hazardous
substance” in excess of its threshold planning quantity.
Section 303 directs LEPCs to work with facilities handling specified “extremely hazardous
substances” to develop response procedures, evacuation plans, and training programs for people
who will be the first to respond in the event of an accident. Upon request, facility owners and
operators are required to provide an LEPC with any additional information that it finds necessary
to develop or implement an emergency plan.
Section 304 requires that facilities immediately report a sudden release of any “extremely
hazardous substance” or any “hazardous substance” (a much broader category of chemicals
defined under CERCLA Section 102(a)) that exceeds the reportable quantity to appropriate state,
local, and federal officials.55 Releases of a reportable quantity of a “hazardous substance” also
54
Prepared by David M. Bearden, Specialist in Environmental Policy, Environmental Policy Section, Resources,
Science, and Industry Division.
55
Under CERCLA Section 102(a) a “hazardous substance” includes any “elements, compounds, mixtures, solutions,
(continued...)
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must be reported to the National Response Center under CERCLA Section 103(a). (See the
section above on “Hazardous Substance Superfund Trust Fund.”)
Subtitle B—Reporting Requirements
Subtitle B establishes various reporting requirements for facilities. The information collected may
be used to develop and implement emergency plans, as well as to provide the public with general
information about chemicals to which they may be exposed.
The Occupational Health and Safety Act of 1970 (OSHAct) requires most employers to provide
employees with access to a material safety data sheet (MSDS) for any “hazardous chemical.”
This “right-to-know” law for workers aims to ensure that people potentially exposed to such
chemicals have access to information about the potential health effects of exposure and how to
avoid them. EPCRA, Section 311 requires facilities covered by OSHAct to submit an MSDS for
each “hazardous chemical” or a list of such chemicals to the LEPC, the SERC, and the local fire
department. EPA has authority to establish categories of health and physical hazards and to
require facilities to list hazardous chemicals grouped by such categories in their reports. An
MSDS need only be submitted once, unless there is a significant change in the information it
contains. An MSDS must be provided in response to a request by an LEPC or a member of the
public. “Hazardous chemicals” are defined by the Code of Federal Regulations, Title 29, at
Section 1910.1200(c).56
EPCRA, Section 312 requires the same employers to submit annually an emergency and
hazardous chemical inventory form to the LEPC, SERC, and local fire department. These forms
must provide estimates of the maximum amount of the chemicals present at the facility at any
time during the preceding year; estimates of the average daily amount of chemicals present; and
the general location of the chemicals in the facility.57 Information must be provided to the public
in response to a written request. EPA is authorized to establish threshold quantities for chemicals
below which facilities are not required to report.
Section 313 mandates development of the Toxic Release Inventory (TRI), a computerized EPA
database of “toxic chemical” releases to the environment by manufacturing facilities.58 It requires
manufacturing facilities that manufacture, use, or process “toxic chemicals” to report annually to
EPA on the amounts of each chemical released to each environmental medium (air, land, or water)
or transferred off-site. EPA makes TRI data available in “raw” and summarized form to the
general public. The public may obtain specific information (e.g., about a particular manufacturing
(...continued)
and substances which, when released into the environment may present a substantial danger to the public health or
welfare or the environment.” Included in this definition are substances listed under the authority of any of the major
environmental statutes (see CERCLA Section 101(14)).
56
EPCRA excepts foods, food additives, and other substances regulated by the Food and Drug Administration; solids
in a manufactured item to the extent exposure does not occur; substances used for personal or household purposes;
substances used in research or hospitals; and substances used in routine agricultural operations.
57
EPCRA allows facilities to report aggregate amounts of chemicals with similar health and environmental effects.
This is called “Tier I” information. However, chemical specific information (“Tier II”) must be provided on request
(under certain conditions) to a SERC, LEPC, fire department, or the public.
58
“Toxic chemicals” are substances that may sicken people who are exposed to them in relatively small amounts by
eating, drinking, breathing, or through skin absorption. The term “hazardous substance” is broader, including toxic
chemicals, but also substances that are explosive, flammable, corrosive, or otherwise harmful.
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facility) by submitting a request in writing to EPA. EPA distributes written and electronic,
nationwide and state-by-state summaries of annual data. Raw data and summaries also are
available over the Internet.59
EPCRA Section 313 generally requires a report to EPA and the state from each manufacturer with
10 or more employees and who either uses 10,000 pounds or manufactures or processes 25,000
pounds of any “toxic chemical” during the reporting year. However, EPA may adjust (and has
adjusted in the past) these thresholds for classes of chemicals or categories of facilities.
EPCRA enumerates the following data reporting requirements for each covered chemical present
at each covered facility:60
•
whether it is manufactured, processed, or otherwise used, and the general
category of use;
•
the maximum amount present at each location during the previous year;
•
treatment or disposal methods used; and
•
amount released to the environment or transferred off-site for treatment or
disposal.
EPCRA requires reporting by manufacturers, which the law defines as facilities in Standard
Industrial Classification codes 20 through 39.61 The law authorized EPA to expand reporting
requirements to additional industries. EPA promulgated a rule May 1, 1997, requiring reports on
toxic releases from seven additional industrial categories, including some metal mining, coal
mining, commercial electric utilities, petroleum bulk terminals, chemical wholesalers, and solvent
recovery facilities (62 Federal Register 23834).62
The original statute specified 313 “toxic chemicals” or categories of chemicals for which
reporting was required, but EPCRA gave EPA authority to add or delete chemicals from the list
either on its own initiative or in response to citizen petitions. EPA has removed more than 15 and
added roughly 350 chemicals (or categories) to the original list. The listing criteria specified in
Section 313(d)(2) authorize EPA to add a chemical when it is “known to cause or can reasonably
be anticipated to cause” the following:
•
“significant adverse acute human health effects at concentration levels that are
reasonably likely to exist beyond facility site boundaries as a result of
continuous, or frequently recurring, releases,”
•
in humans cancer, birth defects, or serious or irreversible chronic health effects,
or
59
See, for example, EPA’s Envirofacts, at http://www.epa.gov/enviro/html/toxic_releases.html; TOXNET, operated by
the National Library of Medicine, at http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?TRI; or Right-to-Know Net,
provided by OMB Watch at http://www.rtknet.org/.
60
Congress added data submission requirements for manufacturers and processors of toxic substances when it enacted
the Pollution Prevention Act of 1990 (see above).
61
Standard Industrial Classification Codes were changed to North American Industry Classification System codes on
March 21, 2003 (66 FR 13872-13887).
62
Current regulations promulgated under EPCRA may be found at Title 40 in the Code of Federal Regulations, Part
372.
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•
“because of—(i) its toxicity, (ii) its toxicity and persistence in the environment,
or (iii) its toxicity and tendency to bioaccumulate in the environment, a
significant adverse effect on the environment of sufficient seriousness, in the
judgment of the Administrator, to warrant reporting under this Section.”
Subtitle C—General Provisions
Subtitle C contains various general provisions, definitions, and authorizations.
Trade Secrets
Section 322 authorizes reporting facilities to withhold the identity of a chemical if it is a trade
secret and they follow procedures established by EPA.
Information for Health Professionals
Special provisions are made in Section 323 for informing health professionals of a chemical
identity that has been withheld to protect confidential business information, if the information is
needed to diagnose or treat a person exposed to the chemical.
Right to Know
Section 324 directs EPA, governors, SERCS, and LEPCs to make emergency response plans,
MSDSs, lists of chemicals, inventory forms, toxic chemical release forms, and follow up
emergency notices available to the general public.
Enforcement
Section 325 establishes civil, administrative, and criminal penalties for non-compliance with
mandatory provisions of the act. Citizens are given the authority to bring civil action against a
facility, EPA, a governor, or an SERC by Section 326.
Chemical Transport
Chemicals being transported or stored incident to transport are not subject to EPCRA
requirements, according to Section 327.
Other Provisions
Section 328 authorizes EPA to issue regulations. Definitions are provided in Section 329. Section
330 authorizes to be appropriated “such sums as may be necessary” to carry out this title.
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Table 15. Major U.S. Code Sections of the
Emergency Planning and Community Right-to-Know Act (EPCRA)
(codified generally at 42 U.SC. 11001-11050)
42 U.S.C.
Section Title
EPCRA
Chapter 116—Emergency Planning And Community Right-To-Know
Subchapter I—Emergency Planning and Notification
11001
Establishment of state commissions, planning districts, and local committees
Sec. 301
11002
Substances and facilities covered and notification
Sec. 302
11003
Comprehensive emergency response plans
Sec. 303
11004
Emergency notification
Sec. 304
11005
Emergency training and review of emergency systems
Sec. 305
Subchapter II—Reporting Requirements
11021
Material safety data sheets
Sec. 311
11022
Emergency and hazardous chemical inventory forms
Sec. 312
11023
Toxic chemical release forms
Sec. 313
Subchapter III—General Provisions
11041
Relationship to other law
Sec. 321
11042
Trade secrets
Sec. 322
11043
Provision of information to health professions, doctors and nurses
Sec. 323
11044
Public availability of plans, data sheets, forms and followup notices
Sec. 324
11045
Enforcement
Sec. 325
11046
Civil actions
Sec. 326
11047
Exemption
Sec. 327
11048
Regulations
Sec. 328
11049
Definitions
Sec. 329
11050
Authorization of appropriations
Sec. 330
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Pollution Prevention Act of 199063
The Pollution Prevention Act of 1990 requires the Environmental Protection Agency to establish
an Office of Pollution Prevention, develop and coordinate a pollution prevention strategy, and
develop source reduction models. The act requires owners and operators of manufacturing
facilities to report annually on source reduction and recycling activities, and authorizes EPA to
collect data collection on pollution prevention.
Background
Enactment of the Pollution Prevention Act of 1990 marked a turning point in the direction of U.S.
environmental protection policy. From an earlier focus on the need to reduce or repair
environmental damage by controlling pollutants at the point where they are released to the
environment, Congress enacted this law with the goal of achieving pollution prevention through
reduced generation of pollutants at their point of origin. Broad support for this policy change was
based on the notion that traditional approaches to pollution control had achieved progress, but
may in the future be supplemented with new approaches that might better address cross-media
pollution transfers, the need for cost-effective alternatives, and methods of controlling pollution
from dispersed or nonpoint sources of pollution.
Pollution prevention, also referred to as “source reduction,” is viewed by its advocates as the first
in a hierarchy of options to reduce risks to human health and the environment. Where prevention
is not possible or may not be cost-effective, other options would include recycling, followed next
by waste treatment according to environmental standards, and as a last resort, safe disposal of
waste residues. Source reduction is the preferred strategy for environmental protection because it
often is cost-effective; offers industry substantial savings in reduced consumption of raw
materials, pollution control costs, and liability costs; reduces risks to workers; and reduces risk to
the environment and public health.
In 1990, opportunities for source reduction appeared to be plentiful, but often were unrealized or
rejected by industries without adequate consideration. The act was meant to increase interest in
source reduction and encourage adoption of cost-effective source reduction practices. The law
was enacted as Title VI of the Omnibus Budget Reconciliation Act of 1990, P.L. 101-508, and is
codified as 42 U.S.C. 13101-13109.
Provisions
Section 6602(b) of the Pollution Prevention Act states that it is the policy of the United States that
“pollution should be prevented or reduced at the source whenever feasible; pollution that cannot
be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution
that cannot be prevented or recycled should be treated in an environmentally safe manner
whenever feasible; and disposal or other release into the environment should be employed only as
a last resort and should be conducted in an environmentally safe manner.”
63
Prepared by David M. Bearden, Specialist in Environmental Policy, Environmental Policy Section, Resources,
Science, and Industry Division.
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Section 6603(5) defines source reduction as
any practice which—
(i) reduces the amount of any hazardous substance, pollutant, or contaminant entering any
waste stream or otherwise released into the environment (including fugitive emissions) prior
to recycling, treatment, or disposal; and
(ii) reduces the hazards to public health and the environment associated with the release of
such substances, pollutants, or contaminants.
Section 6604 of the act required EPA to establish an Office of Pollution Prevention. The office
must be independent of the “single-medium program offices,” but was given authority to review
and advise those offices to promote an integrated, multi-media (i.e., air, land, and water) approach
to source reduction. EPA was directed to develop and implement a detailed and coordinated
strategy to promote source reduction, to consider the effect on source reduction of all EPA
programs and regulations, and to identify and make recommendations to Congress to eliminate
barriers to source reduction. EPA also must conduct workshops and produce and disseminate
guidance documents as part of a training program on source reduction opportunities for state and
federal enforcement officers of environmental regulations. EPA’s strategy, issued in 1991,
identifies goals, tasks, target dates, resources required, organizational responsibilities, and criteria
to evaluate program progress. In addition, the act requires EPA to promote source reduction
practices in other federal agencies and to identify opportunities to use federal procurement to
encourage source reduction.
To facilitate source reduction by industry, EPA is required under Section 6604 to develop, test,
and disseminate model source reduction auditing procedures to highlight opportunities; promote
research and development of source reduction techniques and processes with broad applicability;
establish an annual award program to recognize innovative programs; establish a program under
Section 6605 of state matching grants for programs to provide technical assistance to business;
and disseminate information about source reduction techniques through a clearinghouse
established in Section 6606.
The act also includes provisions to improve data collection and public access to environmental
data. Section 6604(b) directs EPA to develop improved methods of coordinating, streamlining and
assuring access to data collected under all federal environmental statutes. An advisory panel of
technical experts is established to advise the Administrator on ways to improve collection and
dissemination of data. With respect to data collected under federal environmental statutes, Section
6608 directs EPA to evaluate data gaps and data duplication as well as methods of coordinating,
streamlining, and improving public access.
Section 6607 requires owners and operators of many industrial facilities to report annually on
their releases of toxic chemicals to the environment (under the Emergency Planning and
Community Right-to-Know Act of 1986, Section 313). The Pollution Prevention Act requires
these reports to include information about the facility’s efforts in source reduction and recycling.
Specifically, reports must include
•
the quantity of the toxic chemical entering any waste stream (or released to the
environment) prior to recycling, treatment, or disposal;
•
the quantity of toxic substance recycled (on- or off-site);
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•
the source reduction practices used;
•
quantities of toxic chemical expected to enter waste streams and to be recycled in
the two years following the year for which the report is prepared;
•
ratio of production in the reporting year to production in the previous year;
•
techniques used to identify opportunities for source reduction;
•
amount of toxic chemical released in a catastrophic event, remedial action, or
other one-time event; and
•
amount of toxic chemical treated on- or off-site.
All collected information is to be made available to the general public.
Section 6607(c) of the Pollution Prevention Act provides enforcement authority under Title III of
the Superfund Amendments and Reauthorization Act (also known as the Emergency Planning and
Community Right-to-Know Act). Civil, administrative, and criminal penalties are authorized for
non-compliance with mandatory provisions. Citizens are given the authority to bring civil action
for non-compliance against a facility, EPA, a governor, or a State Emergency Response
Commission.
Section 6608(a) requires EPA to file a report on implementation of its Pollution Prevention
Strategy biennially. The required contents of the reports are specified in the statute.
Authorization for appropriations under the Pollution Prevention Act expired September 30, 1993,
but appropriations have continued.
Table 16. Major U.S. Code Sections of the Pollution Prevention Act
(codified generally at 42 U.S.C. 13101-13109)
42 U.S.C.
Section Title
Pollution Prevention Act
Chapter 133—Pollution Prevention
13101
Findings and policy
Sec. 6602
13102
Definitions
Sec. 6603
13103
EPA activities
Sec. 6604
13104
Grants to states for technical assistance programs
Sec. 6605
13105
Source reduction clearinghouse
Sec. 6606
13106
Source reduction and recycling data collection
Sec. 6607
13107
EPA report
Sec. 6608
13108
Savings provision
Sec. 6609
13109
Authorization of appropriations
Sec. 6610
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
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Toxic Substances Control Act64
The Toxic Substances Control Act (TSCA, 15 U.S.C. 2601 et seq.) authorizes EPA to screen
existing and new chemicals used in U.S. manufacturing and commerce to identify potentially
dangerous products or uses that should be subject to federal control. Both naturally occurring and
synthetic chemicals are subject to TSCA, with the exception of chemicals regulated under other
federal laws concerning food, drugs, cosmetics, firearms, ammunition, pesticides, tobacco, or
mixtures. EPA may require manufacturers and processors of chemicals to conduct and report the
results of tests to determine the effects of potentially dangerous chemicals on living things. Based
on test results and other information, EPA must regulate the manufacture, importation,
processing, distribution, use, and/or disposal of any chemical that presents an unreasonable risk of
injury to human health or the environment. A variety of regulatory tools is available to EPA under
TSCA ranging in severity from a total ban on production, import, and use to a requirement that a
product bears a warning label at the point of sale. TSCA directs EPA to use the least burdensome
option that can reduce risk to a level that is reasonable given the benefits provided by the
chemical product or process.
The original legislation included a single title, which has since been designated Title I. As
enacted, TSCA included a provision requiring EPA to take specific measures to control the risks
from polychlorinated biphenyls (PCBs) (Section 6(e)). Title I was amended in 2008 to restrict
sales of elemental mercury (P.L. 110-414). In addition, five titles have been added to address
specific concerns—asbestos in 1986 (Title II, P.L. 99-519), radon in 1988 (Title III, P.L. 100551), lead in 1992 (Title IV, P.L. 102-550), schools in 2007 (Title V, P.L. 110-140), and
formaldehyde in 2010 (Title VI, P.L. 111-199). Title II directs EPA to set standards for asbestos
mitigation in schools and requires asbestos contractors to be trained and certified. Title III directs
EPA to provide technical assistance to states that choose to support radon monitoring and control.
Title IV provides similar assistance with respect to abatement of lead-based paint hazards. Title V
addresses environmental issues at schools, including energy efficiency. Finally, Title VI
establishes limits on emissions of formaldehyde from composite wood products.
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Prepared by Jerry H. Yen, Analyst in Environmental Policy, Environmental Policy Section, Resources, Science, and
Industry Division.
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Table 17. Toxic Substances Control Act and Major Amendments
(codified generally at 15 U.S.C. 2601-2697)
Year
Act
Public Law Number
1976
Toxic Substances Control Act
P.L. 94-469
1986
Asbestos Hazard Emergency Response Act
P.L. 99-519
1988
Radon Program Development Act
P.L. 100-551
1990
Radon Measurement
1990
Asbestos School Hazard Abatement Reauthorization Act
P.L. 101-637
1992
Residential Lead-Based Paint Hazard Reduction Act of 1992
P.L. 102-550
2007
Energy Independence and Security Act of 2007, Subtitle E - Healthy
High-Performance Schools
P.L. 110-140
2008
Mercury Export Ban Act of 2008
P.L. 110-414
2010
Formaldehyde Standards for Composite Wood Products Act
P.L. 111-199
P.L. 101-508, §10202
Background
Federal legislation to control toxic substances was originally proposed in 1971 by the President’s
Council on Environmental Quality. Its report, “Toxic Substances,” defined a need for
comprehensive legislation to identify and control chemicals whose manufacture, processing,
distribution, use, and/or disposal was potentially dangerous and not adequately regulated under
other environmental statutes. The House and Senate each passed bills in both the 92nd and 93rd
Congresses (in 1972 and 1973, respectively), but controversies over the scope of chemical
screening prior to commercial production and distribution, level of costs, and the relationship to
other regulatory laws stalled final action. Episodes of environmental contamination—including
the Hudson River and other waterways by PCBs, the threat of stratospheric ozone depletion from
chlorofluorocarbon (CFC) emissions, and contamination of agricultural produce by
polybrominated biphenyls (PBBs) in the state of Michigan—together with more exact estimates
of the costs of imposing toxic substances controls, opened the way for final passage of the
legislation. President Ford signed the TSCA into law on October 11, 1976.
Title I
TSCA (Title I) directs EPA to
•
require manufacturers and processors to conduct tests for existing chemicals if
(1) their manufacture, distribution, processing, use, or disposal may present an
unreasonable risk of injury to health or the environment; or they are to be
produced in substantial quantities and the potential for environmental release or
human exposure is substantial or significant; (2) existing data are insufficient to
predict the effects of human exposure and environmental releases; and (3) testing
is necessary to develop such data (Section 4);
•
prevent future risks through pre-manufacture screening and regulatory tracking
of new chemical products (Section 5);
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•
control unreasonable risks already known, or as they are discovered for existing
chemicals (Section 6); and
•
gather and disseminate information about chemical production, use, and possible
adverse effects to human health and the environment (Section 8).
Authorization for appropriations for these activities and a state grant program for control of toxic
substances in the environment expired on September 30, 1983, although appropriations for these
programs have continued.
Testing of Chemicals
Many chemicals, even some in widespread use, are not well characterized in terms of their
potential health and environmental effects. One of the major goals of TSCA was to induce the
development of test data by producers (i.e., manufacturers, importers, and processors) of
chemicals in commerce. Section 4 of TSCA directs EPA to require the development of test data
on existing chemicals when certain conditions prevail: (1) the manufacture, processing,
distribution, use, or disposal of the chemical “may present an unreasonable risk,” or (2) the
chemical is produced in very large volume and there is a potential for a substantial quantity to be
released into the environment or for substantial or significant human exposure. Under either
condition, EPA must issue a rule requiring tests if (a) existing data are insufficient to resolve the
question of safety, and (b) testing is necessary to develop the data.
Because there were more than 55,000 chemicals in U.S. commerce at the time EPA was to begin
developing test rules, Congress established a special interagency committee to help EPA
determine which chemicals should be considered first, and to coordinate testing needs and efforts
among government agencies. At least every six months the Interagency Testing Committee (ITC)
must consider candidate chemicals for inclusion on a list of substances that the ITC recommends
to EPA for development and promulgation of test rules. TSCA directs the ITC to “designate” a
subset of chemicals on the list for EPA action within 12 months. The list can contain no more than
50 “designated” chemicals at any time. When a chemical is designated, EPA has one year to
respond by issuing a proposed test rule or a notice explaining why no testing is needed.
TSCA requires the ITC to consider the following factors when it makes listing decisions: (1)
quantity of the substance to be manufactured, (2) quantity of the chemical in environmental
releases, (3) number of people who will be exposed occupationally and the duration of exposure,
(4) extent of non-occupational human exposure, (5) similarity of the chemical to any other
chemical known to present an unreasonable risk, (6) existence of data concerning environmental
or health effects of the chemical, (7) the quantity of information to be gained by testing, and (8)
the availability of facilities and personnel for performing testing. Chemicals known or suspected
to cause or contribute to cancer, gene mutations, or birth defects are to be assigned a higher
priority. In response to information that indicates “there may be a reasonable basis to conclude
that a chemical ... presents or will present a significant risk of serious or widespread harm to
human beings from cancer, gene mutations, or birth defects,” TSCA requires EPA action to
prevent or reduce that risk or publication of a finding that the risk is not unreasonable.
Pre-manufacture Notification for New Chemicals or Uses
TSCA (Section 5) requires manufacturers, importers, and processors to notify EPA at least 90
days prior to producing or otherwise introducing a new chemical product into the United States.
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Any information or test data that is known to, reasonably ascertainable by, or in possession of the
notifier, and that might be useful to EPA in evaluating the chemical’s potential adverse effects on
human health or the environment, must be submitted to EPA at the same time. TSCA also requires
EPA to be notified when there are plans to produce, process, or use an existing chemical in a way
that differs from previously permitted uses, if the Administrator has determined by rule that new
uses of the chemical may produce significant changes in human and environmental exposures and
therefore require notification. The 90-day notice provides EPA with the opportunity to evaluate
the chemical use and, if necessary, to prohibit or limit such activity before it occurs to prevent
unreasonable risk of injury to human health or the environment.
EPA has 45 days after notification (or up to 90 days if it extends the period for good cause) to
evaluate the potential risk posed by the chemical. If EPA determines that there is a reasonable
basis to conclude that the substance presents or will present an unreasonable risk, the
Administrator must promulgate requirements to protect adequately against such risk.
Alternatively, EPA may determine that the proposed activity related to a chemical does not
present an unreasonable risk; this decision may be based on the available data, or, when no data
exist to document the effects of exposure, on what is known about the effects of chemicals in
commerce with similar chemical structures and used in similar ways.
The purpose of EPA’s screening procedure is to identify potential hazards, and control them
before use of a chemical becomes widespread. If data are inadequate to make an informed
judgment and (1) manufacture, processing, distribution in commerce, use, or disposal may present
an unreasonable risk, or (2) a chemical is to be produced in substantial quantities, and the
potential for environmental release or human exposure is substantial or significant, EPA may
issue a proposed order to prohibit or limit such activities until sufficient data are submitted.
Although the legislative history of TSCA includes a presumption that testing of new products
would take place before they were widely used, either as the chemical was developed, or as its
markets grew, TSCA also forbids promulgation of blanket testing requirements for all new
chemicals. This reflects concern that uniform testing requirements might stifle innovation in the
chemical industry. Thus, EPA must decide which chemicals, or which categories of chemicals,
warrant the costs of premarket testing. EPA reviews more than 1,000 new chemical
manufacturing notices annually.
Regulatory Controls for Hazardous Chemicals
TSCA requires EPA to regulate manufacturing, processing, distribution in commerce, use, or
disposal of a chemical if it will present an unreasonable risk of injury to health or the
environment, and the risk cannot be reduced to a sufficient degree under another federal law
administered by EPA. The alternative means available to EPA for controlling chemical hazards
that present unreasonable risks are specified in Section 6 of TSCA. EPA has the authority to
•
prohibit or limit the amount of production or distribution of a substance in
commerce;
•
prohibit or limit the production or distribution of a substance for a particular use;
•
limit the volume or concentration of the chemical produced;
•
prohibit or regulate the manner or method of commercial use;
•
require warning labels and/or instructions on containers or products;
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require notification of the risk of injury to distributors and, to the extent possible,
consumers;
•
require record-keeping by producers;
•
specify disposal methods; and
•
require replacement or repurchase of products already distributed.
EPA also may impose any of these requirements in combination, or for a specific geographical
region. However, EPA is required by TSCA to regulate only “to the extent necessary to protect
adequately” against a risk, and to use the “least burdensome” regulatory approach, even in
controlling unreasonable risks.
Information Gathering
Section 8 of TSCA requires EPA to develop and maintain an inventory of all chemicals, or
categories of chemicals, manufactured or processed in the United States. The first version of this
inventory identified approximately 55,000 chemicals in commerce in 1979. All chemicals not on
the inventory are, by definition, “new” and subject to the notification provisions of Section 5.
These chemicals must be added to the inventory if they enter U.S. commerce. Chemicals need not
be listed if they are only produced in very small quantities for purposes of experimentation or
research.
Two chemical substances are directly addressed in Title I: PCBs and elemental mercury. TSCA
directs EPA to regulate PCBs and to ban most uses. In addition, TSCA prohibits the sale,
distribution, or transfer of elemental mercury by federal agencies.
To aid EPA in its duties under TSCA, the agency was granted considerable authority to collect
information from industries. EPA may require maintenance of records and reporting of chemical
identities, names, and molecular structures; categories of use; amounts manufactured and
processed for each category of use; descriptions of byproducts resulting from manufacture,
processing, use, and disposal; environmental and health effects; number of individuals exposed;
number of employees exposed and the duration of exposure; and manner or method of chemical
disposal.
Manufacturers, processors, and distributors of chemicals are required to maintain records of
significant adverse reactions to health or the environment alleged to have been caused by a
substance or mixture. Records of adverse effects on the health of employees must be retained for
30 years from the date of reporting. Industry also must submit lists and copies of health and safety
studies. Studies showing adverse effects previously unknown must be submitted to EPA as soon
as they are completed or discovered.
Imminent Hazards
Section 7 provides EPA authority to take emergency action through the district courts to control a
chemical substance or mixture which presents an imminent and unreasonable risk of serious
widespread injury to health or the environment.
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Relation to Other Laws
Section 9 allows EPA to refer cases of chemical risk to other federal agencies with the authority to
prevent or reduce the risk. For statutes under EPA’s jurisdiction, TSCA gives the Administrator
discretion to decide if a risk can best be handled under the authority of TSCA.
Enforcement and Judicial Review
Section 11 authorizes EPA to inspect any facilities subject to TSCA requirements and to issue
subpoenas requiring attendance and testimony of witnesses, production of reports and documents,
answers to questions and other necessary information. Section 13 mandates TSCA enforcement at
the national borders by the Treasury Department.
Section 15 identifies acts prohibited under TSCA, while Section 16 describes penalties for acts
violating these prohibitions, as well as recourse available to anyone accused of such violations.
Section 16 authorizes civil penalties, not to exceed $25,000 per violation per day, and affords the
defendant an opportunity to request a hearing before an order is issued and to petition for judicial
review of an order after it is issued. Criminal penalties also are authorized for willful violations.
Section 17 provides jurisdiction to U.S. district courts in civil actions to enforce TSCA Section 15
by restraining or compelling actions that violate or comply with it, respectively. Chemicals may
be seized and condemned if their manufacture, processing, or distribution violated the act.
Section 19 authorizes any person to file a petition for judicial review of specified rules within 60
days of issuance under TSCA. The court is directed to set aside specified rules if they are not
supported by substantial evidence in the rulemaking record taken as a whole.
Section 20 authorizes civil suits by any person against any person in violation of the act. It also
authorizes suits against EPA to compel performance of nondiscretionary actions under TSCA.
Section 21 provides the public with the right to petition for the issuance, amendment, or repeal of
a rule requiring toxicity testing of a chemical, regulation of the chemical, or reporting.
Confidential Business Information
Section 14 provides broad protection of proprietary confidential information about chemicals in
commerce. Disclosure by EPA employees of such information generally is not permitted, except
to other federal employees, or when necessary to protect health or the environment. Data from
health and safety studies of chemicals is not protected unless its disclosure would reveal a
chemical process or chemical proportion in a mixture. Wrongful disclosure of confidential data by
federal employees is prohibited, and may result in criminal penalties.
Chemical Categories
Section 26 allows EPA to impose regulatory controls on categories of chemicals, rather than on a
case-by-case basis. However, EPA cannot regulate a group merely because it is composed of new
chemical substances.
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State Preemption
TSCA Section 18 preempts state actions that establish or continue in effect requirements
applicable to a chemical substance or mixture that is federally regulated under TSCA Sections 5
or 6, unless the state requirement is identical to the federal requirement, implements another
federal law, or prohibits use of the substance or mixture within the state. However, a state may
ask EPA to allow a state requirement that provides a significantly higher degree of protection
from risk than does the federal requirement.
Other Provisions
TSCA Section 10 directs EPA to conduct and coordinate among federal agencies research,
development, and monitoring that is necessary to the purposes of the act.
Section 12 excludes chemical products manufactured for export from TSCA requirements except
for reporting and record keeping requirements in Section 8. In 2008, Congress excluded
elemental mercury from this exemption, banning its export beginning in 2013, with the exception
of mercury contained in coal. Other exceptions from essential uses may be granted by rule.
Section 22 waives compliance when in the interest of national defense.
Section 23 provides protection of employees who assist in carrying out the provisions of the act
(i.e., “whistle-blowers”).
The potential effects of TSCA rules on employment must be monitored by EPA, according to
Section 24.
Section 25 mandates study of the need for indemnification of people affected by federal laws
administered by EPA and of the feasibility of establishing a standard classification system for
chemical substances and of storing and retrieving information about them.
Section 26 authorizes data sharing and cooperative action to facilitate TSCA implementation
between EPA and other federal agencies. It also authorizes collection of fees for EPA processing
of data submitted in response to an order under Section 4 or 5. EPA is directed to establish an
office to assist the regulated community. The agency also must establish a procedure to ensure
disclosure of financial interests in the regulated community by EPA employees. Final orders
issued under TSCA must contain a statement of basis and purpose. Finally, Section 26 established
within EPA a new Assistant Administrator for Toxic Substances.
TSCA Section 27 authorizes research and development of test methods for chemicals by the
Public Health Service in cooperation with EPA.
Grants to states are authorized by Section 28 to establish and operate programs to prevent or
eliminate unreasonable risks to health or the environment.
Section 29 authorized appropriations through 1983.
An annual report is mandated by Section 30.
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Title II (Asbestos in Buildings)
Growing public concern about the presence of potentially hazardous asbestos in buildings,
especially in schools, led to congressional efforts to address this problem. Title II of TSCA, the
Asbestos Hazard Emergency Response Act (AHERA), was enacted in 1986 (P.L. 99-519) and
amended in July 1988 (P.L. 100-368). It required EPA to set standards by October 1987, for
responding to the presence of asbestos in schools. The standards, set at levels adequate to protect
public health and the environment, identify appropriate response actions that depend on the
physical condition of asbestos. Schools, in turn, were required to inspect for asbestos-containing
material, and to develop and implement a plan for managing any such material. Plans for
managing asbestos were to be submitted by schools before May 1989, and implementation was to
begin by July 1989. The law contains no deadlines for schools to complete implementation.
Title II requires asbestos contractors and analytical laboratories to be certified, and schools to use
certified persons for abatement work. Training and accreditation requirements also apply to
inspectors, contractors, and workers performing asbestos abatement work in all public and
commercial buildings. EPA may award training grants to nonprofit organizations for asbestos
health and safety programs. However, authorization of appropriations for this grant program
expired September 30, 1995. Other Title II requirements (such as mandates that buildings be
inspected for asbestos) have not been extended to non-school buildings.
To enforce requirements, TSCA authorizes EPA to take emergency action with respect to schools
if school officials do not act to protect children. The act also authorizes citizen action with respect
to asbestos-containing material in a school and to compel action by EPA, either through
administrative petition or judicial action. Civil penalties not to exceed $5,000 are authorized for
violations such as failing to conduct an inspection or to develop a school management plan.
Concern about how schools would pay for required actions was addressed in separate legislation
(the Asbestos School Hazard Abatement Act of 1984, or ASHAA, P.L. 98-377). It established a
program offering grants and interest-free loans to schools with serious asbestos problems and
demonstrated financial need. Although EPA for several years did not request funding for this
program, Congress appropriated funds. Authorization of appropriations for this program expired
September 30, 1995, and Congress has not appropriated funds since FY1993; a total of $382
million in grant and loan funds were appropriated from FY1984 through FY1993. Repaid
ASHAA loans are returned to an Asbestos Trust Fund, established in TSCA Title II, to become a
dedicated source of revenues for future asbestos control projects.
Title III (Radon Programs)
In October 1988 Congress amended TSCA by adding Title III—Indoor Radon Abatement (15
U.S.C. 2661 et seq., P.L. 100-551). The basic purpose of Title III is to provide financial and
technical assistance to the states that choose to support radon monitoring and control; neither
monitoring nor abatement of radon is required by the act.
Title III required EPA to update its pamphlet “A Citizen’s Guide to Radon,” to develop model
construction standards and techniques for controlling radon levels within new buildings, and to
provide technical assistance to states. EPA is to provide technical assistance by establishing an
information clearinghouse; publishing public information materials; establishing a national
database of radon levels detected, organized by state; providing information to professional
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organizations representing private firms involved in building design and construction; submitting
to Congress a plan for providing financial and technical assistance to states; operating cooperative
projects with states; conducting research to develop, test, and evaluate radon measurement
methods and protocols; developing and demonstrating new methods of radon measurement and
mitigation, including methods that are suitable for use in nonresidential child care facilities;
operating a voluntary program to rate radon measurement and mitigation devices and methods
and the effectiveness of private firms and individuals offering radon-related services; and
designing and implementing training seminars. The proficiency rating program and certification
for training programs collect fees for service, and therefore, are meant to be self-supporting, but
Congress authorized $1,500,000 to be appropriated to establish these programs. Congress
authorized $3,000,000 to be appropriated for each of three years beginning in 1989 for the other
provisions of Sections 303, 304, and 305.
A matching grant program was established for the purpose of assisting states in developing and
implementing programs for radon assessment and mitigation. For this program, $30 million was
authorized to be appropriated over three years, with funds targeted to states or projects that made
efforts to ensure adoption of EPA’s model construction standards and techniques for new
buildings; gave preference to low-income persons; or addressed serious and extensive radon
contamination problems or had the potential to reduce risk or to develop innovative assessment
techniques, mitigation measures, or management approaches.
Other sections of Title III require EPA to conduct a study to determine the extent of radon
contamination in schools; identify and list areas of the U.S. with a high probability of having high
levels of indoor radon; make grants or cooperative agreements to establish and operate at least
three regional radon training centers; and provide guidance to federal agencies on radon
measurement, risk assessment, and remedial measures.
All authorizations for appropriations specific to this title expired September 30, 1991, although
appropriations have continued.
Title IV (Lead Exposure Reduction)
The 102nd Congress added Title IV to TSCA when it enacted the Residential Lead-Based Paint
Hazard Reduction Act of 1992 as Title X in the Housing and Community Development Act of
1992 (P.L. 102-550). Title IV aims to accelerate federal efforts to reduce risks to young children
who daily are exposed to lead-based paint in their homes. In addition, it is expected to stimulate
development of lead inspection and hazard abatement services in the private sector, while
ensuring that the services provided and any products employed are reliable and effective in
reducing risk. To these ends, Title IV directs EPA to
•
promulgate definitions of lead-contaminated dust, lead-contaminated soil, and
lead-based paint hazards;
•
ensure that people engaged in detection and control of lead hazards are properly
trained and that contractors are certified;
•
publish requirements for the accreditation of training programs for workers;
•
develop criteria to evaluate the effectiveness of commercial products used to
detect or reduce risks associated with lead-based paint;
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•
establish protocols, criteria, and minimum performance standards for laboratory
analysis of lead in paint films, soil, and dust;
•
establish a program to certify laboratories as qualified to test substances for lead
content; and
•
publish and distribute to the public a list of certified or accredited environmental
sampling laboratories.
Title IV explicitly applies these requirements to federal facilities and activities that may create a
lead hazard.
In addition, Congress directed EPA to conduct a study of lead hazards due to renovation and
remodeling activities that may incidentally disturb lead-based paint. EPA is required to
promulgate guidelines for the renovation and remodeling of buildings or other structures when
these activities might create a hazard.
Title IV directs EPA to establish a clearinghouse and hotline to distribute information about the
hazards of lead-based paint, how to avoid exposure and reduce risk, and new technologies for
removing or immobilizing lead-based paint. In addition, Congress mandated development of a
lead hazard information pamphlet; public education and outreach activities for health
professionals, the general public, homeowners, landlords, tenants, consumers of home
improvement products, the residential real estate industry, and the home renovation industry; and
information to be distributed by retailers of home improvement products to provide consumers
with practical information related to the hazards of renovation where lead-based paint may be
present.
Title IV authorizes states to propose programs to train and certify inspectors and contractors
engaged in the detection or control of lead-based paint hazards. States also may develop the
required informational pamphlets. TSCA requires EPA to promulgate a model state program that
may be adopted by any state. Congress gave EPA the authority to approve or disapprove
authorization for state proposals and to provide grants for states to develop and implement
authorized programs. A federal program must be established, administered, and enforced by EPA
in each state without an authorized program.
The Department of Health and Human Services also has responsibilities under Title IV of TSCA.
It mandates a study by the Centers for Disease Prevention and Control (CDC) and the National
Institute for Environmental Health Sciences to determine the sources of lead exposure to children
who have elevated lead levels in their bodies. The National Institute for Occupational Safety and
Health is directed to study ways of reducing occupational exposure to lead during abatement
activities.
The act established a rule-making docket to ensure the availability to the general public of all
documents submitted to agencies that are relevant to regulatory decisions pursuant to this
legislation. The docket is required to include the drafts of all proposed rules submitted by EPA to
the President’s Office of Management and Budget (OMB), written comments on the drafts, and
written responses to comments. In addition, the agency must provide an explanation for any
major change to a proposed rule that appears in the final rule, and such changes may not be made
based on information not filed in the docket. Dockets are required to be established in each EPA
regional office.
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Congress authorized to be appropriated “such sums as may be necessary” for TSCA Title IV.
In addition to amending TSCA, Title X of the Housing and Community Development Act of 1992
authorized grants to states for risk assessments and lead-based paint removal and immobilization
in private housing for low-income residents; establishing state training, certification, or
accreditation programs for inspectors and abatement contractors; and research at the Department
of Housing and Urban Development (HUD). Authorization for appropriations for these grants
expired September 30, 1994, but appropriations have continued. Title X directed HUD to
establish guidelines for federally supported work involving risk assessments, inspections, interim
controls, and abatement of lead-based paint hazards. In addition, the National Institute for
Occupational Safety and Health (NIOSH) was provided $10 million for training people who
remove or immobilize paint.
Title V (Reducing Risks in Schools)
At the end of 2007, the 110th Congress added a fifth title to TSCA, subtitled Healthy HighPerformance Schools. Enacted as Title IV, Subtitle E (Section 461) of P.L. 110-140, the Energy
Independence and Security Act of 2007, TSCA Title V authorizes EPA to establish a state grant
program to provide technical assistance for EPA programs to schools and develop and implement
state school environmental health programs. State programs must include standards for school
building design, construction, and renovation, and identify ongoing school building
environmental problems and recommended solutions. Environmental problems specifically
mentioned in the law include “contaminants, hazardous substances, and pollutant emissions.”
EPA’s authority to provide grants expires five years after the date of enactment.
Title V requires the EPA Administrator, in consultation with the Secretary of Education and the
Secretary of Health and Human Services, to issue voluntary guidelines within 18 months of Title
V enactment for selecting sites for schools (presumably new schools). The guidelines are to
account for the “special vulnerability of children to hazardous substances or pollution exposures
in any case in which the potential for contamination at a potential school site exists,” modes of
transportation available to students and staff, efficient use of energy, and potential use of a school
at the site as an emergency shelter.
Title V also requires the EPA Administrator, in consultation with the Secretary of Education and
the Secretary of Health and Human Services, to issue voluntary guidelines within two years of
enactment for developing and implementing state environmental health programs for schools.
These guidelines must take into account the findings of federal initiatives established under
“relevant federal law with respect to school facilities,” including initiatives related to water and
energy conservation authorized by Sections 431 through 441, and work related to highperformance green buildings authorized by Section 492 of P.L. 110-140. In particular, the
guidelines must take into account “environmental problems, contaminants, hazardous substances,
and pollutant emissions”; natural day lighting; ventilation; heating and cooling; moisture control
and mold; maintenance, cleaning, and pest control; acoustics; and “other issues relating to the
health, comfort, productivity, and performance of occupants of the school facilities.” In addition,
Title V requires that the guidelines provide “technical assistance on siting, design, management,
and operation of school facilities”; collaborate with children’s environmental health centers in
school environmental investigations”; assist states and the public to better understand and
improve the environmental health of children; and take into account “the special vulnerability of
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children in low-income and minority communities to exposures from contaminants, hazardous
substances, and pollutant emissions.”
Several provisions in Title V refer to entities established under other sections of the Energy
Independence and Security Act of 2007 (P.L. 110-140). For example, Title V contains directives
for the Federal Director of the Office of Federal High-Performance Green Buildings in the
General Services Administration, which was created by Section 436(a). In addition, there is
reference to the national high-performance green building clearinghouse established in Section
423(1) “to carry out public outreach to inform individuals and entities of the information and
services [related to high-performance green buildings] available governmentwide.” Title V
requires the Federal Director to ensure, “to the maximum extent practicable,” that the public
clearinghouse “receives and makes available information on the exposure of children to
environmental hazards in school facilities.” The EPA Administrator is directed to prepare an
annual report to Congress on activities carried out under Title V authority, and this report also
must be made available to the public through the clearinghouse.
For the purposes of carrying out the provisions of Title V, Congress authorized appropriations of
$7 million through FY2013.
Title VI (Limiting Formaldehyde Emissions)
In July 2010, Congress enacted the Formaldehyde Standards for Composite Wood Products Act
(P.L. 111-199), adding a new Title VI to TSCA. The new title mandates specific formaldehyde
emission standards for hardwood plywood, medium-density fiberboard, and particleboard that is
sold, supplied, offered for sale, or manufactured in the United States. The standards are phased in
over two years from enactment and are based on the voluntary national formaldehyde emissions
standards established by ASTM International (formerly known as the American Society for
Testing and Materials), method ASTM E-1333-96 (2002).
The standards apply to plywood, particleboard, and medium-density fiberboard in the form of an
unfinished panel or incorporated into a finished good. Certain products are excluded, including
many forms of lumber and panels used for outdoor applications, such as structural plywood,
prefabricated wood I-joists, most windows, antiques or other previously owned goods, and
composite wood products used inside automobiles, trucks, rail cars, boats, and aircraft.
EPA is required to promulgate regulations ensuring compliance with the emission standards and
must include provisions relating to labeling, chain of custody requirements, sell-through
provisions; ultra low-emitting formaldehyde resins, finished goods, third-party testing and
certification; auditing and reporting of third-party certifiers; recordkeeping; enforcement,
laminated products; and exceptions for products and components containing “de minimis
amounts” of composite wood products. The new law prohibits stockpiling of products
manufactured before the effective date of the act for sale after that date. Also prohibited is any
requirement for labeling products manufactured prior to the “designated date of manufacture.”
P.L. 111-199 requires an annual report to Congress on the status of implementation and the extent
to which relevant industries have achieved compliance. Finally, the act directs the Secretary of
Housing and Urban Development to update regulations concerning formaldehyde emissions from
composite wood in manufactured homes (24 Code of Federal Regulations 3280.308) to ensure
that the standards established by TSCA Title VI are implemented.
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Table 18. Major U.S. Code Sections of the Toxic Substances Control Act, as Amended
(codified generally at 15 U.S.C. 2601-2695d)
15 U.S.C.
Section Title
Toxic Substances
Control Act, as
Amended
Chapter 53—Toxic Substances Control
Subchapter I—Control of Toxic Substances
2601
Findings, policy, and intent
Sec. 2
2602
Definitions
Sec. 3
2603
Testing of chemical substances and mixtures
Sec. 4
2604
Manufacturing and processing notices
Sec. 5
2605
Regulation of hazardous chemical substances and mixtures
Sec. 6
2606
Imminent hazards
Sec. 7
2607
Reporting and retention of information
Sec. 8
2608
Relationship to other federal laws
Sec. 9
2609
Research, development, collection, dissemination, and utilization of data
Sec. 10
2610
Inspections and subpoenas
Sec. 11
2611
Exports
Sec. 12
2612
Entry into customs territory of the United States
Sec. 13
2613
Disclosure of data
Sec. 14
2614
Prohibited acts
Sec. 15
2615
Penalties
Sec. 16
2616
Specific enforcement and seizure
Sec. 17
2617
Preemption
Sec. 18
2618
Judicial review
Sec. 19
2619
Citizens’ civil actions
Sec. 20
2620
Citizens’ petitions
Sec. 21
2621
National defense waiver
Sec. 22
2622
Employee protection
Sec. 23
2623
Employment effects
Sec. 24
2624
Studies
Sec. 25
2625
Administration
Sec. 26
2626
Development and evaluation of test methods
Sec. 27
2627
State programs
Sec. 28
2628
Authorization of appropriations
Sec. 29
2629
Annual report
Sec. 30
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15 U.S.C.
Section Title
Toxic Substances
Control Act, as
Amended
Subchapter II—Asbestos Hazard Emergency Response
2641
Congressional findings and purpose
Sec. 201
2642
Definitions
Sec. 202
2643
EPA regulations
Sec. 203
2644
Requirements if EPA fails to promulgate regulations
Sec. 204
2645
Submission to state governor
Sec. 205
2646
Contractor and laboratory accreditation
Sec. 206
2647
Enforcement
Sec. 207
2648
Emergency authority
Sec. 208
2649
State and federal law
Sec. 209
2650
Asbestos contractors and local educational agencies
Sec. 210
2651
Public protection
Sec. 211
2652
Asbestos Ombudsman
Sec. 212
2653
EPA study of asbestos-containing material in public buildings
Sec. 213
2654
Transition rules
Sec. 214
2655
Worker protection
Sec. 215
2656
Training Grants
Sec. 216
Subchapter III—Indoor Radon Abatement
2661
National goal
Sec. 301
2662
Definitions
Sec. 302
2663
EPA’s citizen’s guide
Sec. 303
2664
Model construction standards and techniques
Sec. 304
2665
Technical assistance to states for radon programs
Sec. 305
2666
Grant assistance to states for radon programs
Sec. 306
2667
Radon in schools
Sec. 307
2668
Regional radon training centers
Sec. 308
2669
Study of radon in federal buildings
Sec. 309
2670
Regulations
Sec. 310
2671
Additional authorizations
Sec. 311
Subchapter IV—Lead Exposure Reduction
2681
Definitions
Sec. 401
2682
Lead-based paint activities training and certification
Sec. 402
2683
Identification of dangerous levels of lead
Sec. 403
2684
Authorized state programs
Sec. 404
2685
Lead abatement and measurement
Sec. 405
2686
Lead hazard information pamphlet
Sec. 406
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15 U.S.C.
Section Title
Toxic Substances
Control Act, as
Amended
2687
Regulations
Sec. 407
2688
Control of lead-based paint at federal facilities
Sec. 408
2689
Prohibited acts
Sec. 409
2690
Relationship to other federal law
Sec. 410
2691
General provisions relating to administrative proceedings
Sec. 411
2692
Authorization of appropriations
Sec. 412
Subchapter V—Healthy High-Performance Schools
2695
Grants for healthy school environments
Sec. 501
2695a
Model guidelines for siting of school facilities
Sec. 502
2695b
Public outreach
Sec. 503
2695c
Environmental health program
Sec. 504
2695d
Authorization of appropriations
Sec. 505
Subchapter VI—Formaldehyde Standards for Composite Wood Products
2697
Formaldehyde Standards
Sec. 601
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
Pesticide Laws65
EPA is responsible for implementing federal pesticide policies under two statutes: the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA),66 governing the sale and use of pesticide
products within the United States; and the Federal Food, Drug, and Cosmetic Act (FFDCA),
which limits pesticide residues on food in interstate commerce (including imports). There are an
estimated 18,000 pesticide products currently in use.67 These generally are regulated under
FIFRA, but approximately 5,800 pesticide products used in food production also are regulated
under the FFDCA, as discussed below. FIFRA requires EPA to regulate the sale and use of
pesticides in the United States through registration and labeling.68 Pesticides are broadly defined
in FIFRA Section 2(u) as chemicals and other products used to kill, repel, or control pests.
Familiar examples include pesticides used to kill insects and weeds that can reduce the yield, and
sometimes harm the quality, of agricultural crops, ornamental plants, forests, wooden structures
(e.g., through termite damage), and pastures. But the broad definition of “pesticide” in FIFRA
Section 2 also applies to products with less familiar “pesticidal uses.” For example, substances
65
Prepared by Jerry H. Yen, Analyst in Environmental Policy, and Robert Esworthy, Specialist in Environmental
Policy, Environmental Policy Section, Resources, Science, and Industry Division.
66
FIFRA also is known as the Act of June 25, 1947.
67
Sven-Erik Kaiser, U.S. EPA, Office of Congressional and Intergovernmental Relations, personal communication,
December 16, 2011.
68
Exceptions are noted in 40 CFR 152.20, 152.25, and 152.30.
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are pesticides when used to control mold, mildew, algae, and other nuisance growths on
equipment, in surface water, or on stored grains. The term also applies to disinfectants and
sterilizing agents, animal repellents, rat poison, and many other substances.
FIFRA directs EPA to restrict the use of pesticides as necessary to prevent unreasonable adverse
effects on people and the environment, taking into account the costs and benefits of various
pesticide uses. The act prohibits sale of any pesticide in the United States unless it is registered
(licensed) and labeled to indicate approved uses and restrictions. It is a violation of the law to use
a pesticide in a manner that is inconsistent with the label instructions. EPA registers each
pesticide product for each approved use. For example, a product may be registered for use on
green beans to control mites, as a seed treatment for cotton, and as a treatment for structural
cracks. In addition, FIFRA requires EPA to reregister each older pesticide product that was first
registered prior to 1984 and to review all registered pesticides (including those that have
completed the one-time reregistration requirement) periodically on a 15-year cycle based on new
data that meet current regulatory and scientific standards. Establishments that manufacture or sell
pesticide products must register with EPA. Facility managers are required to keep certain records
and to allow inspections by federal or state regulatory officials.
For the 600 or more pesticides (i.e., active ingredients) registered for use in food production, the
FFDCA Section 408 authorizes EPA to establish maximum allowable residue levels (also known
as “tolerances”) to ensure that human exposure to the pesticide ingredients in food and animal
feed will be “safe.”69 A “safe” tolerance is defined in the law as a level at which there is “a
reasonable certainty of no harm” from the exposure, even when considering total cumulative and
aggregate pesticide exposure of children. Under FFDCA, foods with a residue of a pesticide
ingredient for which there is no tolerance established, or with a residue level exceeding an
established tolerance limit, are declared “unsafe” and “adulterated”; such foods cannot be sold in
interstate commerce or imported to the United States. Pesticides may not be registered under
FIFRA for use on food unless tolerances (or exemptions) have been established under the
FFDCA.
FIFRA authorizes EPA to fund registration-related activities (including registration reviews and
tolerance assessments) by collecting fees from pesticide registrants (i.e., manufacturers and
formulators) to supplement appropriations.
History of Federal Pesticide Law
Table 19 and Table 20 list the original enactment of FIFRA and FFDCA and major amendments
to these statutes, respectively.
FIFRA
Federal pesticide legislation was first enacted in 1910; it authorized the U.S. Department of
Agriculture (USDA) to set standards for the manufacture of insecticides and fungicides and to
69
Ingredients in pesticide products are categorized as active or inert. Active ingredients are those that are intended to
control the pest, while inert ingredients, now generally known as “other ingredients,” are used to deliver the active
ingredients effectively to the pest. Other ingredients often are solvents or surfactants and often comprise the bulk of the
pesticide product. Some inerts are known to be toxic, some are known to be harmless, and others have unknown
toxicity.
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require them to be labeled. USDA then could inspect and remove from the market products that
were “adulterated”70 or ineffective. The original 1947 version of FIFRA broadened the scope of
pesticide law to include more types of pesticides, required product registration by USDA prior to
interstate or international shipment, and required that labels carry adequate warnings and
precautionary instructions for use.
The 1970s brought major changes to the federal role in regulating pesticide production and use.
Responsibility for administering FIFRA was shifted to EPA when that agency was created in
1970. A complete revision of FIFRA in 1972 was precipitated by congressional concerns about
long- and short-term toxic effects of pesticide exposure on people who applied pesticides
(applicators), wildlife, insects and birds not targeted by the pesticide product, and on food
consumers. The 1972 law replaced the original 1947 law, and is the basis of current federal
policy, which is summarized in this report. FIFRA, as amended in 1972,71 directed EPA to register
pesticide products and to “reregister” older products in order to assess their safety in light of more
demanding and current scientific standards.
Substantial changes to FIFRA also were made in 1978 (P.L. 95-396), 1988 (P.L. 100-532), 1996
(P.L. 104-170), 2004 (P.L. 108-199), 2007 (P.L. 110-94), and 2012 (P.L. 112-177). Concerns
about the pace of pesticide reregistration were addressed in 1978 when Congress streamlined the
process.72 The 1978 FIFRA amendments required EPA to review groupings of products having
the same active ingredients, on a generic instead of individual product basis, and made provisions
for registrants to share the cost of data generation. In addition, Congress authorized EPA to
suspend registrations of products if registrants did not provide required test data in a timely
fashion. The 1988 amendments focused on further accelerating reregistration (including tolerance
assessment) by focusing on older pesticides (registered before 1984), authorizing additional
registration fees, and establishing the Reregistration and Expedited Processing Fund in the U.S.
Treasury to receive the fee payments (FIFRA Section 4(k)). Congress amended FIFRA Section 4
to require agricultural chemical producers to pay a one-time reregistration fee for each active
ingredient and product registrants (manufacturers and formulators) to pay an annual registration
maintenance fee for each product registration. The Reregistration and Expedited Processing Fund
was intended to supplement appropriations to offset the cost of reregistration and tolerance
reassessment.
The Food Quality Protection Act of 1996 (FQPA) established a new, more stringent safety
standard for pesticide residues on food, required special protection for children, directed EPA to
reassess pesticides posing the greatest risks first, facilitated registration of pesticides for special
(so-called “minor”) uses, mandated a periodic review of all registered pesticides at least once
every 15 years, and required coordination of regulations implementing FIFRA and FFDCA. The
FQPA also authorized and reauthorized collection of new and existing fees to support
reregistration and tolerance reassessments through FY2001. Exemptions from, or reductions in,
fees were allowed for minor-use pesticides, public health pesticides, and small business
registrants.
70
FIFRA 2(c) defines “adulterated” in terms of quality, that is, the purity and strength of the product relative to the
standards established for that product.
71
Federal Environmental Pesticide Control Act of 1972, P.L. 92-516, Section 4(c)(2).
72
Federal Pesticide Act of 1978, P.L. 95-396.
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Current Fees Related to Pesticide Registration
Registration service fees: FIFRA Section 33 [7 U.S.C. 136w-8]
Annual maintenance fees: FIFRA Section 4(i)(5) [7 U.S.C. 136a-1(i)(5)]
Congress extended authority for fees annually through appropriations legislation after FY2001,
until the omnibus appropriations legislation signed January 23, 2004 (P.L. 108-199), modified the
types and amounts of fees that EPA could collect through FY2008. That legislation included the
Pesticide Registration Improvement Act (PRIA 1), which amended FIFRA Section 4 to
reauthorize collection of annual “maintenance” fees to support reregistration and tolerance
reassessment activities and designated a portion of those fees for the review of inert ingredients.
Maintenance fees are deposited in the “Reregistration and Expedited Processing Fund” in the
U.S. Treasury (initially established in 198873). PRIA 1 extended the deadline for completion of
reregistration. In addition, PRIA 1 added a new Section 33 to FIFRA to establish a system of
“Registration Service Fees” (also known as “Enhanced Registration Service” fees) to expedite
specific pesticide registration applications submitted to EPA, and established a new fund in the
U.S. Treasury to receive those fees, the Pesticide Registration Fund (FIFRA Section 33(c)). PRIA
1 prohibited collection of fees other than maintenance and the new registration fees. The Pesticide
Registration Improvement Renewal Act of 2007, or PRIA 2, reauthorized and revised these fee
provisions through the end of FY2012, and the Pesticide Registration Improvement Extension Act
of 2012, or PRIA 3 (P.L. 112-177), enacted September 28, 2012, further revised the fee collection
provisions and extended reauthorization through the end of FY2017. Certain fee collections and
apportionment are authorized under PRIA 3 on a reduced basis through FY2019.74
See Table 21 for a listing of provisions in FIFRA under existing law to date.
Table 19. Federal Insecticide, Fungicide, and Rodenticide Act and Amendments
(codified generally at 7 U.S.C. 136-136y)
Year
Act
Public Law Number
1947
Federal Insecticide, Fungicide, and Rodenticide Act
P.L. 80-104
1964
Federal Insecticide, Fungicide, and Rodenticide Act Amendments
P.L. 88-305
1972
Federal Environmental Pesticide Control Act
P.L. 92-516
1975
Federal Insecticide, Fungicide, and Rodenticide Act Extension
P.L. 94-140
1978
Federal Pesticide Act of 1978
P.L. 95-396
1980
Federal Insecticide, Fungicide and Rodenticide Act Amendments
P.L. 96-539
1988
Federal Insecticide, Fungicide, and Rodenticide Amendments of 1988
P.L. 100-532
73
Federal Insecticide, Fungicide, and Rodenticide Act Amendments of 1988 (P.L. 100-532), enacted October 25, 1988,
and retained in Section 501(b) P.L. 104-170, the Food Quality Protection Act of 1996, enacted August 3, 1996;
7 U.S.C. §136a-1(k)(1).
74
CRS Report RL32218, Pesticide Registration and Tolerance Fees: An Overview, provides a historical overview of
federal authority regarding pesticide fees, including the amount of fee revenues collected over time, and summarizes
the key elements of PRIA 1, the revisions reflected in PRIA 2 and in PRIA 3, and highlights of EPA’s registration and
reregistration activities since the enactment of PRIA 1.
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Year
Act
Public Law Number
1990
Food, Agriculture, Conservation, and Trade Act of 1990
P.L. 101-624
1991
Food, Agriculture, Conservation and Trade Amendments of 1991
P.L. 102-237
1996
Food Quality Protection Act (FQPA) of 1996
P.L. 104-170
2004
Pesticide Registration Improvement Act of 2003
P.L. 108-199, Division G, Title V
2007
Pesticide Registration Improvement Renewal Act
P.L. 110-94
2012
Pesticide Registration Improvement Extension Act of 2012
P.L. 112-177
Note: The current FIFRA statute was established by P.L. 92-516, which completely replaced (by amendment) the
original 1947 legislation.
Authorization for appropriations for FIFRA expired on September 31, 1991, although
appropriations bills have continued to provide funding to implement the law. Authority provided
by FIFRA to EPA to issue and enforce regulations is, for the most part, permanent, and is not
affected by the lack of authorization.
FFDCA
The original FFDCA of 1938 established the structure of the current law. With respect to food
safety and possible contaminants, it required the Food and Drug Administration (FDA, then a part
of USDA) to set tolerances for unavoidable poisonous substances in food. Congress acted to
protect consumers from pesticide residues on food in 1954 by adding a new Section 408 to the
FFDCA. It directed FDA to set residue tolerances for all pesticides in raw agricultural
commodities. Congress expanded the requirement for tolerances in the Food Additives
Amendment of 1958, which added Section 409, directing FDA to set tolerances for food
additives, including pesticide residues in processed foods. Section 409 also forbade the addition
to food of any additive (including pesticide residue), if it was found to be a potential cancercausing agent. This provision is referred to as the Delaney Clause.
Table 20. Federal Food, Drug, and Cosmetic Act, Section 408,
and Amendments
(codified generally at 21 U.S.C. 321-346a)
Year
Act
Public Law Number
1938
Federal Food, Drug, and Cosmetic Act
Act of June 25, 1938
1954
Federal Food, Drug, and Cosmetic Act Amendments
Act of July 22, 1954
1958
Food Additive Amendments of 1958 (including the Delaney Clause)
P.L. 85-929
1996
Food Quality Protection Act of 1996
P.L. 104-170
In 1970, authority to establish tolerances for pesticide residues was transferred to the newly
formed EPA. FDA, in the Department of Health and Human Services (HHS), retained
responsibility for enforcement of tolerances in food that is imported or sold across state
boundaries.
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In 1996, Congress substantially revised requirements for pesticide residue tolerance setting in the
Food Quality Protection Act (FQPA). The FQPA redefined terms so that pesticide residues in
processed foods were no longer regulated as food additives, and therefore no longer were subject
to the Delaney Clause. The FQPA also established a new safety standard of a “reasonable
certainty of no harm” from exposure to pesticides. (For details on the safety standard, see
“Tolerance Setting” below.) See Table 22 for a listing of current pesticide-related provisions in
the FFDCA.
The Act of July 22, 1954, authorized such sums as may be necessary to carry out this FFDCA
section (21 U.S.C. 346b). Fees for tolerance assessments are authorized by FFDCA Section
408(m), but PRIA 1 prohibited collection of tolerance fees in 2004. General appropriations
supplemented by the Reregistration and Expedited Processing Fund and the Pesticide Registration
Fund support EPA activities with respect to tolerance setting for food-use pesticides.
Registration of Pesticide Products
When pesticide manufacturers apply to register a pesticide active ingredient75, pesticide product,
or a new use of a registered pesticide under FIFRA Section 3, EPA requires them to submit
scientific data on toxicity and behavior in the environment. EPA may require data from any
combination of more than 100 different tests, depending on the potential toxicity of active and
inert ingredients and degree of exposure. To register a pesticide use on food, EPA also requires
applicants to identify analytical methods that can be used to test food for residues of active
ingredients, certain inert ingredients, and their breakdown products and to determine the amount
of residue that could remain on crops, as well as on (or in) food products, assuming that the
pesticide product is applied according to the manufacturers’ recommended rates and methods.
Based on the data submitted, EPA determines whether and under what conditions the proposed
pesticide use would present an unreasonable risk to human health or the environment. If the
pesticide is proposed for use on a food crop, EPA also determines whether a “safe” level of
pesticide residue, or tolerance, can be established under the FFDCA. A tolerance must be
established before a pesticide registration may be granted for use on food crops. If registration is
granted, the agency specifies the approved uses and conditions of use, including safe methods of
pesticide storage and disposal, which the registrant must explain on the product label. FIFRA
requires that federal regulations for pesticide labels pre-empt state, local, and tribal regulations.
Use of a pesticide product in a manner inconsistent with its label is prohibited.
EPA may classify and register a pesticide product for general or for restricted use. Products
known as “restricted-use pesticides” are those judged to be more dangerous to the applicator or to
the environment. Such pesticides can be applied only by people who have been trained and
certified. Individual states and Indian tribes generally are responsible for training and certifying
pesticide applicators.
FIFRA Section 3 also allows “conditional,” temporary registrations if (1) the proposed pesticide
ingredients and uses are substantially similar to currently registered products and will not create
additional significant environmental risks; (2) an amendment is proposed for additional uses of a
registered pesticide, and sufficient data are submitted indicating that there is no significant
75
See footnote 69 for definitions of “active” and “inert” pesticide ingredients.
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additional risk; or (3) data requirements for a new active ingredient require more time to generate
than normally allowed, and use of the pesticide during the period will not cause any unreasonable
adverse effect on the environment and will be in the public interest.
EPA has authority to collect fee revenues as a means of accelerating the pace of the agency’s
activities to meet its statutory obligations required under FIFRA and FFDCA. All Section 3
registrations are subject to a maintenance fee, collected annually from pesticide registrants
(pesticide manufacturers and formulators) to continue existing registrations of their pesticides the
year in which the fee is paid. In addition, Section 33 of FIFRA, “Pesticide Registration Services
Fees,” describes a fee system for new and certain pending applications for pesticide registrations,
amended registrations, and associated tolerance actions. Fees are charged based on a statutorily
prescribed schedule,76 and fees received by EPA are deposited in the Pesticide Registration Fund
in the Treasury of the United States, which was established by Congress under PRIA 1 (FIFRA
Section 33(c)). PRIA 1 prohibited collection of additional tolerance fees authorized under FFDCA
Section 408(m). Revenues from the Pesticide Registration Fund can be used for costs associated
with review and decision making for applications for which registration service fees have been
paid, but fees collected cover only a portion of EPA’s registration activities. The remaining costs
are expected to be paid from annual appropriations. To ensure that the appropriated funds are not
reduced in lieu of fee revenues, PRIA 3 enacted September 28, 2012, revised and extended the
prohibition on authorizing registration service fees unless the amount of congressional
appropriations for specified functions conducted by the EPA Office of Pesticide Programs (OPP)
(excluding any fees appropriated) remains no less than the corresponding FY2012
appropriation.77 PRIA 1 and PRIA 2 had stipulated that appropriated funds for specific EPA OPP
functions be maintained at no less than 3% below their FY2002 levels. PRIA 3 also continued to
stipulate that the authorization to collect and obligate fees must be provided in advance in
appropriations acts.78 These requirements have been met in EPA annual appropriations for
FY2004 through FY2012,79 and until March 27, 2013, in the FY2013 continuing appropriations
resolution (P.L. 112-175).
FIFRA-FFDCA Coordination
EPA has long coordinated pesticide registrations for food uses under FIFRA with tolerance setting under the FFDCA.
The Food Quality Protection Act of 1996 (FQPA; P.L. 104-170) codified this policy. Thus, if EPA revokes a residue
tolerance under FFDCA, it cancels the FIFRA pesticide registration for that food use. Similarly, if a pesticide
registration for use on a food crop is canceled, EPA also cancels the residue tolerance for the food. However, just as
FIFRA allows continued use of remaining pesticide stocks after a registration is canceled, FFDCA allows continued
commerce in commodities legally treated with a pesticide. Thus, EPA does not immediately revoke the tolerance for
76
The category or type of application, the amount of the pesticide registration service fee, and the corresponding
decision review time frame in which the agency is to make a decision under PRIA 3 (P.L. 112-177) are prescribed in
the act. Section 2(b)(1)(A) of P.L. 112-177 amends FIFRA by striking existing paragraph (3) under 7 U.S.C. §136w8(b) and inserting new paragraph (3), “Schedule of Covered Applications and Registration Service Fees.” Under PRIA
1 and PRIA 2, the EPA Administrator was directed to publish a detailed schedule of covered pesticide applications and
corresponding registration service fees, as reported in the Congressional Record.
77
P.L. 112-177 Section 2(b)(3)(A) through (C) amends 7 U.S.C. §136w-8(d)(2) and strikes paragraph (4).
78
FIFRA §33(c)(4) Collections and Appropriations (7 U.S.C. §136w-8(c)(4)(A)).
79
FY2004 (P.L. 108-199); FY2005 (P.L. 108-447); FY2006 (P.L. 109-54); FY2007 (P.L. 110-5); FY2008 (P.L. 110161); FY2009 (P.L. 111-8); FY2010 (P.L. 111-88); FY2011 (P.L. 112-10, for EPA, §1101(a)(4) and §1104 in Title I of
Division B in P.L. 112-10 provided continued authorization for the collection of pesticide fees during FY2011 pursuant
to FY2010 P.L. 111-88, Division A); and FY2012 (P.L. 112-74).
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the pesticide residue, when it cancels the corresponding registration.
Tolerance Setting
Any person who has registered a pesticide may petition EPA proposing establishment of a
tolerance or an exemption for that pesticide to permit its use on food-related crops.80 Tolerance
petitions must include information about pesticide application rates, measured concentrations of
pesticide residues on the food after the pesticide has been applied according to directions on its
label, and safety of pesticide use on food crops. The FFDCA requires EPA to respond to each
petition by establishing a tolerance or exempting the pesticide from the requirement. If the
pesticide will not leave residues above an established safe level, EPA will register the pesticide
for use on that food product and set the tolerance level by issuing a regulation. EPA tolerances for
pesticide residues preempt state and local restrictions on food, if the state and local restrictions
are based on lower residue levels. States may petition for an exception if the EPA-set residue
level threatens public health.
The FFDCA, Section 408, as amended by the FQPA, requires EPA to assess safety in terms of
total exposure to the pesticide (that is, to the concentration of pesticide allowed by the tolerance,
together with all other dietary and non-food exposures for which there is reliable information) as
well as to other pesticides that have the same toxic effects on people. No quantitative standard of
safety is established by law, but the Committee on Commerce noted in its report on the bill that
became the FQPA that EPA should continue setting standards to ensure safety as it had in the past:
the Committee expects that a tolerance will provide a ‘reasonable certainty of no harm’ if the
Administrator determines that the aggregate exposure to the pesticide chemical residue will
be lower by an ample margin of safety than the level at which the pesticide chemical residue
will not cause or contribute to any known or anticipated harm to human health. The
Committee further expects, based on discussions with the Environmental Protection Agency,
that the Administrator will interpret an ample margin of safety to be a 100-fold safety factor
applied to the scientifically determined ‘no observable effect’ level when data are
extrapolated from animal studies.81
In determining a safe level, the FFDCA directs EPA to take into account many factors, including
available information on dietary exposure to pesticides among infants and children. The FQPA
strictly limited the nature and influence of benefits considered in tolerance setting under Section
408 of the FFDCA. As amended, Section 408 allows EPA to maintain or modify existing
tolerances (but not to establish new tolerances) at higher than “safe” residue levels only if the
pesticide use avoids other greater risks to consumers, or is necessary to avoid significant
disruption in domestic production of an adequate, wholesome, and economical food supply. Such
higher tolerance levels may be set only for pesticides that are potential carcinogens (or have some
other health effect) for which there is no known level of exposure at which no harm is anticipated
(known as a non-threshold effect). The higher tolerance level allowed for such pesticide residues
must be “safe” for infants and children, as well as with respect to health effects for which there is
a known threshold (that is, a level below which exposure is known to be harmless). The higher
80
That is, use on food crops, animal feed crops, or food products directly (e.g., grains, fruits, or vegetables after
harvest).
81
U.S. House of Representatives, Committee on Commerce, Food Quality Protection Act of 1996, H.Rept. 104-669,
part 2, 104th Cong., 2nd Session, 1996, p. 6.
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cancer (or other non-threshold) risk posed by the tolerance on an annual basis may not be more
than 10 times the risk at a “safe” level of exposure and not more than twice the risk of a “safe”
level over a lifetime.
For nonthreshold effects, the House Commerce Committee provided additional guidance for
establishing a level of residue that should be considered “safe.”
In the case of a nonthreshold effect which can be assessed through quantitative risk
assessment, such as a cancer effect, the Committee expects, based on its understanding of
current EPA practice, that a tolerance will be considered to provide a ‘reasonable certainty of
no harm’ if any increase in lifetime risk, based on quantitative risk assessment using
conservative assumptions, will be no greater than ‘negligible.’ It is the Committee’s
understanding that, under current EPA practice, ... EPA interprets a negligible risk to be a
one-in-a-million lifetime risk. The Committee expects the Administrator to continue to
follow this interpretation.82
The “safe” standard applies to both raw and processed foods, and requires EPA to consider
cumulative and aggregate exposure to pesticides in food, drinking water, air, and consumer
products. Congress directed EPA to reevaluate all existing tolerances against this standard before
August 2006.
FFDCA directs the FDA and USDA to monitor pesticide residue levels in food in interstate
commerce and to enforce tolerances through their food inspection programs. USDA is responsible
for inspecting meat and poultry; FDA inspects all other foods. States also may monitor pesticide
residues in food sold within their jurisdictions.
Public Disclosure, Exclusive Use, and Trade Secrets
FIFRA Section 3 directs EPA to make the data submitted by the applicant for pesticide
registration publicly available within 30 days after a registration is granted. However, applicants
may claim certain data are protected as trade secrets under FIFRA, Section 10. If EPA agrees that
the data are protected, the agency must withhold those data from the public, unless the data
pertain to the health effects or environmental fate or effects of the pesticide ingredients.
Information may be protected if it qualifies as a trade secret and reveals: (1) manufacturing
processes; (2) details of methods for testing, detecting, or measuring amounts of inert ingredients;
or (3) the identity or percentage quantity of inert ingredients.
Companies sometimes seek to register a product based upon the registration of similar products,
relying upon the data provided by the original registrant that are publicly released. This is
allowed. However, Section 3 of FIFRA provides for a 10-year period of “exclusive use” by the
registrant of data submitted in support of an original registration or a new use. In addition, an
applicant who submits any new data in support of a registration is entitled to compensation for the
cost of data development by any subsequent applicant who supports an application with that data
within 15 years of its submission. If compensation is not jointly agreed upon by the registrant and
applicant, binding arbitration can be invoked.
82
Ibid.
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Reregistration
For many years, Congress has been concerned about the tens of thousands of registered pesticide
products that had not been subjected to modern safety reviews. FIFRA Section 4 directs EPA to
reregister such products (if they were first registered prior to 1984), in order to assess their safety
in light of current scientific standards. Many of those older pesticide products have had their
registrations canceled, often because registrants did not request reregistration. At least 14,000
products are no longer in use. Nevertheless, the task for registrants and EPA of reregistering the
remaining older pesticide products is immense and costly, and is ongoing.83
For the purpose of reregistration, EPA considers groupings of products having the same active
ingredients (known as “cases”), on a generic instead of individual product basis. For each active
case, the agency evaluates existing scientific data to determine whether they are sufficient to
inform EPA’s decision about the ingredient’s eligibility for reregistration, given the safety
standards specified by FIFRA and FFDCA. For food-use pesticides, EPA evaluates a pesticide’s
eligibility for reregistration at the same time the agency reassesses the tolerance for that pesticide
under the FFDCA. If data are not sufficient, the agency issues a “data call-in” to registrants, who
are responsible for generating the necessary new data following EPA protocols.84 Registrants may
share the cost of testing and analysis. EPA is responsible for reviewing data and determining
whether it adequately demonstrates the safety of the product. When all necessary data have been
received and reviewed, EPA prepares and issues a Reregistration Eligibility Decision document,
known as a “RED.” If registrants do not provide required test data in a timely fashion, EPA is
authorized to suspend registrations of products.
FIFRA Section 4(i) directs EPA to collect one-time reregistration fees and to deposit them into the
Reregistration and Expedited Processing Fund, established under FIFRA Section 4(k). Annual
maintenance fees for registered products also are deposited into this fund. These funds
supplement EPA appropriations and are meant to expedite EPA processing of applications for
pesticide reregistration (including tolerance reassessment) and to offset costs associated with
pesticide registration review (see below). PRIA 1 directed EPA to complete REDs for pesticides
(i.e., active ingredients) with food uses/tolerances by August 3, 2006, and to complete REDs for
all remaining non-food use pesticides by October 3, 2008. However, the reregistration process
continues after that date, as explained on the EPA reregistration website:
After EPA has issued a RED and declared a pesticide eligible for reregistration, individual
end-use products that contain the pesticide active ingredient still must be reregistered.
Through this concluding part of the process, known as “product reregistration,” the Agency
makes sure that the risk reduction measures called for in REDs are reflected on individual
pesticide product labels. In some cases, the Agency uses Memoranda of Agreement or other
measures to include risk reduction measures on pesticide labels sooner, before product
reregistration is completed. EPA plans to complete the last product reregistration decisions
several years after the last REDs are signed.85
83
See EPA, “Product Reregistration,” at http://www.epa.gov/pesticides/reregistration/product-reregistration.htm, and
“Pesticide Reregistration Facts,” http://www.epa.gov/oppsrrd1/reregistration/reregistration_facts.htm.
84
Test protocols and laboratory practices are issued as regulations and may be found in Title 40 of the Code of Federal
Regulations, Sections 158 and 160.
85
EPA, Pesticide Reregistration Facts, http://www.epa.gov/oppsrrd1/reregistration/reregistration_facts.htm.
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Registration Review
In anticipation of EPA’s completion of reregistration, Congress amended FIFRA Section 3(g),
mandating periodic review of all pesticide registrations on a 15-year cycle. PRIA 2 authorized use
of the moneys in the Reregistration and Expedited Processing Fund (FIFRA Section 4(k)) to
offset costs of these reviews. PRIA 2 established a deadline of October 1, 2022, for EPA to
complete registration review decisions for all pesticide products registered as of October 1, 2007.
PRIA 3 (P.L. 112-177), enacted September 28, 2012, continued the authorization of the moneys in
this Fund and retained the October 1, 2022, deadline. The registration reviews are intended to
determine whether pesticides continue to meet the statutory standard of no unreasonable adverse
effects (and a reasonable certainty of no harm, for food-use pesticides), taking into account
changes in scientific capabilities for assessing risk, as well as changes in policies and pesticide
use practices over time. Registration review is replacing EPA’s reregistration and tolerance
reassessment programs.86
Special Review
EPA continues to evaluate the safety of pesticides after they are registered as new information
becomes available. FIFRA requires registrants to report promptly any new evidence of adverse
effects from pesticide exposure. If evidence indicates that a registered pesticide may pose an
unreasonable risk, EPA may initiate a special review of available information to reevaluate the
risks and benefits of each registered use. FIFRA also authorizes EPA to require registrants to
conduct new studies to fill gaps in scientific understanding to assist risk assessments. As a result
of a special review EPA may conclude that registration is adequate, needs amendment, or should
be canceled.
Canceling or Suspending a Registration
If a special review or reregistration evaluation finds that a registered use may cause
“unreasonable adverse effects,” EPA may amend or cancel the registration.87 FIFRA also allows
registrants to request cancellation or amendment of a registration to terminate selected pesticide
uses. Requesting voluntary cancellation sometimes reflects a registrant’s conclusion that the cost
of additional studies is not worth the expected benefit (that is, profit) from sales if the registration
would be maintained.
If a registration is canceled for one or more uses of a pesticide, FIFRA does not permit it to be
sold or distributed for those uses in the United States, although for a specified period of time,
U.S. farmers may use remaining stocks, and commerce may continue for commodities that were
legally treated with the pesticide. FIFRA allows registrants to appeal an EPA decision to cancel a
registration. An appeal initiates a lengthy review process during which the product may continue
to be marketed. However, if there is threat of an “imminent hazard” during the time required to
86
For a more detailed overview of EPA’s registration review process, and updated information on EPA’s schedule for
opening dockets to begin pesticide registration reviews, see http://www.epa.gov/oppsrrd1/registration_review/
reg_review_process.htm.
87
Registrations also may be canceled under other conditions, for example, if data are not submitted in response to
EPA’s request for additional information to maintain a registration, or if a registrant fails to pay the maintenance fee.
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cancel a registration, FIFRA authorizes EPA to suspend registration. Suspension orders, which
also may be appealed, stop sales and use of the pesticide.
In the event of suspension and cancellation, FIFRA Section 15 directs EPA to request an
appropriation from Congress to compensate anyone who owned any of the pesticide and suffered
any loss due to the suspension or cancellation. The registrant of the suspended and canceled
product is responsible, however, for all of the transportation and disposal costs, and most storage
costs.
Use of Unregistered Pesticides
FIFRA also allows for unregistered use of pesticide products in special circumstances. Section 5
allows experimental use permits for purposes of research and to collect data needed to register a
pesticide. Section 18 allows “emergency exemptions” from the provisions of FIFRA to be granted
to federal or state agencies, for example, if there is a virulent outbreak of a disease that cannot be
controlled by registered products. In addition, Section 24(c) permits states to allow additional
uses of a federally registered product to meet “special local needs.”
Enforcement
Generally, EPA has the authority to enforce FIFRA requirements. However, FIFRA Section 26
gives primary enforcement authority for pesticide use under FIFRA to states that have adequate
enforcement procedures, laws, and regulations, including inspection authority. EPA is authorized
by Section 27 to rescind a state’s primary enforcement responsibility if it is not being carried out.
FIFRA Section 11 authorizes EPA to form cooperative agreements with states, giving them the
responsibility for training and certifying applicators of restricted use pesticides. States also may
initially review and give preliminary approval to applications for emergency exemptions and
special local needs registrations, (although under some conditions FIFRA allows EPA later to
deny state-approved applications).
Section 9 authorizes inspections by EPA and authorized state officials of pesticide products where
they are stored for distribution or sale. Section 13 authorizes EPA to issue orders to stop sales and
to seize supplies of pesticide products. Civil and criminal penalties for violations of FIFRA are
established in Section 14, while Section 15 provides indemnity payments for end users,
distributors, and dealers of pesticides when registrations are suspended and canceled.
Federal district courts are authorized in Section 16 to review EPA final actions and omissions
when action is not discretionary. People adversely affected by an EPA order may file for judicial
review of the order following a hearing. But FIFRA does not authorize citizen suits against
violators.
Export of Unregistered Pesticides
FIFRA does not give EPA the authority to regulate domestic production for export of unregistered
pesticides, even if U.S. registration has been canceled for health or environmental reasons.
However, FIFRA does require exporters to prepare or pack pesticides as specified by the
purchaser and in accord with some of the FIFRA labeling provisions. For example, exporters
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must translate warning information into the language of the destination. FIFRA also requires
exporters of unregistered pesticides to obtain the purchaser’s signature on a statement
acknowledging that the pesticide is unregistered and cannot be sold in the United States. EPA is
required to notify governments of other countries and international agencies whenever a
registration, cancellation, or suspension of any pesticide becomes or ceases to be effective in the
United States.
Table 21. Major U.S. Code Sections of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), as Amended
(codified generally at 7 U.S.C. 136-136y)
Section Title
7 U.S.C.
FIFRA, as Amended
Chapter 6—Insecticides And Environmental Pesticide Control
Subchapter II—Environmental Pesticide Control
136
Definitions
Sec. 2
136a
Registration of pesticides
Sec. 3
Reregistration of registered pesticides
Sec. 4
136c
Experimental use permits
Sec. 5
136d
Administration review; suspension
Sec. 6
136e
Registration of establishments
Sec. 7
136f
Books and records
Sec. 8
136g
Inspection of establishments, etc.
Sec. 9
136h
Protection of trade secrets and other information
Sec. 10
136i
Restricted use pesticides; applicators
Sec. 11
136j
Unlawful acts
Sec. 12
136k
Stop sale, use, removal, and seizure
Sec. 13
136l
Penalties
Sec. 14
136m
Indemnities
Sec. 15
136n
Administrative procedure; judicial review
Sec. 16
136o
Imports and exports
Sec. 17
136p
Exemption of federal and state agencies
Sec. 18
136q
Storage, disposal, transportation, and recall
Sec. 19
136r
Research and monitoring
Sec. 20
136s
Solicitation of comments; notice of public hearings
Sec. 21
136t
Delegation and cooperation
Sec. 22
136u
State cooperation, aid, and training
Sec. 23
136v
Authority of states
Sec. 24
136w
Authority of Administrator
Sec. 25
136w-1
State primary enforcement responsibility
Sec. 26
136w-2
Failure by the state to assure enforcement of state pesticide use
regulations
Sec. 27
136a-1
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Section Title
7 U.S.C.
FIFRA, as Amended
136w-3
Identification of pests; cooperation with Department of Agriculture’s
program
Sec. 28
136w-4
Omitted (Annual report)
Sec. 29
136w-5
Minimum requirements for training of maintenance applicators and
service technicians
Sec. 30
136w-6
Environmental Protection Agency minor use program
Sec. 31
136w-7
Department of Agriculture minor use program
Sec. 32
136w-8
Pesticide registration service fees
Sec. 33
136x
Severability
Sec. 34
136y
Authorization of appropriations
Sec. 35
Note: This table shows only the major code sections. For more detail and to determine when a section was added,
consult the official version of the U.S. Code.
Table 22. Major U.S. Code Sections of the Federal Food, Drug, and
Cosmetic Act (FFDCA), as Amended, Related to Pesticides
(codified generally at 21 U.S.C. 321-346a)
21 U.S.C.
Section Title
FFDCA, as Amended
Chapter 9—Federal Food, Drug, and Cosmetic Act
Subchapter II—Definitions
321
Definitions; generally
Sec. 201
Subchapter III—Prohibited Acts and Penalties
331
Prohibited acts
Sec. 301
332
Injunction proceedings
Sec. 302
333
Penalties
Sec. 303
334
Seizure
Sec. 304
Subchapter IV—Food
342
Adulterated food
Sec. 402
343
Misbranded food
Sec. 403
346
Tolerances for poisonous or deleterious substances in food; regulations
Sec. 406
346a
Tolerances and exemptions for pesticide chemical residues
Sec. 408
346a(a)
Requirement for tolerance or exemption
Sec. 408(a)
346a(b)
Authority and standard for tolerance
Sec. 408(b)
346a(c)
Authority and standard for exemptions
Sec. 408(c)
346a(d)
Petition for tolerance or exemption
Sec. 408(d)
346a(e)
Action on Administrator’s own initiative
Sec. 408(e)
346a(f)
Special data requirements
Sec. 408(f)
346a(g)
Effective data, objections, hearings, and administrative review
Sec. 408(g)
346a(h)
Judicial review
Sec. 408(h)
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21 U.S.C.
Section Title
FFDCA, as Amended
346a(i)
Confidentiality and use of data
Sec. 408(i)
346a(j)
Status of previously issued regulations
Sec. 408(j)
346a(k)
Transitional provision
Sec. 408(k)
346a(l)
Harmonization with action under other laws
Sec. 408(l)
346a(m)
Fees
Sec. 408(m)
346a(n)
National uniformity of tolerances
Sec. 408(n)
346a(o)
Consumer right to know
Sec. 408(o)
346a(p)
Estrogenic substances screening program
Sec. 408(p)
346a(q)
Schedule for review
Sec. 408(q)
346a(r)
Temporary tolerance or exemption
Sec. 408(r)
346a(s)
Savings clause
Sec. 408(s)
Note: This table shows only the major code sections. For more detail and to determine when a section was
added, consult the official version of the U.S. Code.
National Environmental Policy Act88
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.) was enacted in 1969 and
signed into law by President Nixon on January 1, 1970 (P.L. 91-190). NEPA was the first of
several major environmental laws enacted in the 1970s. Under Title I of the act, Congress
declared a national policy that stated, in part, that it is “the continuing policy of the Federal
government ... to use all practicable means and measures ... to create and maintain conditions
under which man and nature can exist in productive harmony, and fulfill the social, economic,
and other requirements of present and future generations of Americans.” NEPA also created the
Council on Environmental Quality (CEQ) in the Executive Office of the President. Among other
duties, CEQ was required to develop and recommend to the President national policies to foster
and promote the improvement of environmental quality. In the 1970’s, CEQ played a key role in
shaping regulations for implementation of NEPA.
One of the best-known elements of NEPA is its directive to federal agencies to incorporate
environmental considerations in their planning and decision-making through a systematic
interdisciplinary approach. Specifically, NEPA requires all federal agencies to prepare a detailed
statement of the environmental impact of and alternatives to major federal actions significantly
affecting the environment. The “detailed statement” was subsequently referred to as an
environmental impact statement (EIS).89
Judicial interpretation of NEPA ultimately determined that the act did not require agencies to
elevate environmental concerns over other considerations. Rather, the courts determined, NEPA
requires only that the agency take a “hard look” at a project’s environmental consequences before
taking action. If the adverse environmental effects of the proposed action are adequately
88
Prepared by Linda Luther, Analyst in Environmental Policy, Environmental Policy Section, Resources, Science, and
Industry Division.
89
42 U.S.C. §4332(2)(C).
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identified and evaluated, the agency is not constrained by NEPA from deciding that other benefits
outweigh the environmental costs.
In 1978, CEQ formally promulgated regulations, binding on all federal agencies, implementing
NEPA’s provisions. In addition to CEQ, Congress authorized EPA to perform certain duties to
ensure the proper implementation of NEPA’s EIS requirements (discussed below).
Table 23. National Environmental Policy Act, Amendments, and Related Acts
(codified generally at 42 U.S.C. 4321-4347)
Year
Act
Public Law Number
1970 National Environmental Policy Act
P.L. 91-190
1971 Clean Air Act Amendments of 1970 (§309)
[did not amend NEPA, but specified EPA responsibilities in the NEPA process]
P.L. 91-604
1975 Authorizations—Office of Environmental Quality
P.L. 94-52
1975 National Environmental Policy Act [Administrative Delegation to State] Amendment
P.L. 94-83
The NEPA Process
NEPA applies to all major federal actions, including projects and programs entirely or partly
funded, assisted, conducted, regulated, or approved by federal agencies. To ensure that
environmental impacts of those actions are considered before final decisions are made, NEPA
requires the preparation of an environmental impact statement (EIS) for any major federal action
significantly affecting the quality of the human environment. An EIS is a full disclosure
document that provides a description of the proposed action, and the existing environment, as
well as analysis of the anticipated beneficial and adverse environmental effects of all reasonable
alternatives.90
As required under CEQ’s regulations, some level of analysis is also required when environmental
impacts are uncertain or not significant. Projects for which it is not initially clear whether impacts
will be significant require the preparation of an environmental assessment (EA). An EA is a
concise public document that analyzes the environmental impacts of a proposed federal action
and provides sufficient evidence to determine the level of significance of the impacts.91 It is
followed by either a Finding of No Significant Impact (FONSI) or a decision to prepare an EIS.
Categorical exclusions are actions that do not individually or cumulatively have a significant
social, economic, or environmental effect, and which the applicable agency has determined from
past experience have no significant impact. Such actions are excluded from the requirement to
prepare an EIS or EA.
Prior to completing the appropriate NEPA documentation, the responsible federal official (the
“lead agency”) is required to consult with and obtain the comments of any federal agency which
has jurisdiction by law or special expertise (a “cooperating agency”) with respect to any
environmental impact involved. For any given federal action, compliance with a wide variety of
90
For more information, see CRS Report RL33152, The National Environmental Policy Act (NEPA): Background and
Implementation, by Linda Luther.
91
40 C.F.R. §1508.9.
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legislative and regulatory requirements, enforceable by multiple agencies, may be required.
NEPA documentation may be required to document compliance with all applicable environmental
laws, executive orders, and other related requirements. Most agencies use the NEPA process as a
means of coordinating or demonstrating compliance with all applicable environmental
requirements. In this capacity NEPA may function as an “umbrella statute,” meaning any study,
review, or consultation required by law, that is related to the environment, may be conducted
within the framework of the NEPA process.
Complex federal projects such as highway construction projects, forest thinning, or oil and gas
development projects, may trigger compliance with literally dozens of federal, state, tribal, and
local environmental statutory and regulatory requirements. These, in turn, require the
participation or input of possibly dozens of agencies. Some Members of Congress have expressed
concerns that the interagency coordination required of such projects is often inefficient, leading to
unnecessary delays in needed projects. Improved interagency cooperation has been identified by
some Members of Congress as a critical element to the success of streamlining the NEPA
process.92 The CEQ’s regulations implementing NEPA currently include a variety of provisions
intended to expedite the compliance process. In particular, CEQ’s regulations specify procedures
to reduce paperwork and delay. The regulations also direct agencies to efficiently facilitate the
process of complying with multiple statutory and regulatory requirements. To do so, the
regulations direct agencies, among other requirements, to:
•
Integrate NEPA’s requirements with other required planning and environmental
review procedures.
•
Prepare environmental reviews concurrently with one another, rather than
consecutively.
•
Establish appropriate time limits on EISs.
•
Integrate the NEPA process into early planning and prepare the EIS early in the
process.
•
Emphasize interagency cooperation before the EIS is prepared, rather than
submission of adversary comments on a completed document.
•
Insure the swift and fair resolution of lead agency disputes.93
Environmental Protection Agency Functions Under NEPA
NEPA is broad, with requirements potentially affecting all federal agencies. Also, EPA is not
authorized to enforce NEPA’s requirements; instead, federal agencies are required to implement
its requirements themselves.94 However, EPA does have two distinct roles in the NEPA process.
The first regards its duty, under Section 309 of the Clean Air Act, to review and comment
publicly on the environmental impacts of proposed federal activities, including those for which an
EIS is prepared. After conducting its review, EPA rates two elements of the action: the adequacy
92
For more information see CRS Report RL33267, The National Environmental Policy Act: Streamlining NEPA, by
Linda Luther.
93
40 C.F.R. §§1500.2 and 1500.4-1500.5
94
In CEQ’s regulations (40 C.F.R. §1507.3), federal agencies were required to prepare their own NEPA procedures
that address that agency’s compliance in relation to its particular mission.
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of the EIS and the environmental impact of the action.95 The EIS may be rated “adequate,” “needs
more information,” or “inadequate.” The lead agency would be required to respond appropriately
depending upon EPA’s rating. With regard to rating the environmental impacts of an action, EPA
would rate a project in one of the following four ways: lack of objections, environmental
concerns, environmental objections, environmentally unsatisfactory. If EPA determines that the
action is environmentally unsatisfactory, it is required to refer the matter to CEQ to resolve any
interagency dispute.
EPA’s second duty is an administrative one, in which it carries out the operational duties
associated with the EIS filing process. In 1978, these duties were transferred to EPA by CEQ in
accordance with a Memorandum of Agreement (MOA) entered into by EPA and CEQ. Under the
terms of the MOA, EPA’s Office of Federal Activities is designated the official recipient of all
EISs prepared by federal agencies. EPA maintains a national EIS filing system. By maintaining
the system, EPA facilitates public access to EISs by publishing weekly notices in the Federal
Register of EISs available for public review, along with summaries of EPA’s comments.
Apart from these duties, like any other federal agency, EPA may participate in the NEPA process
as a lead agency when it is sponsoring its own federal actions. Currently, NEPA documentation is
required of EPA for research and development activities, construction of EPA facilities,
wastewater treatment plant construction under the Clean Water Act, EPA-issued National
Pollutant Discharge Elimination System (NPDES) permits for new sources,96 and for certain
projects funded through EPA annual Appropriations Acts. Legislation has specifically limited
EPA’s requirement to comply with NEPA for certain actions. For example, Section 7(c) of the
Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 793(c)(1)) exempts
actions taken under the Clean Air Act from the requirements of NEPA. EPA is also exempted
from the procedural requirements of environmental laws, including NEPA, for response actions
pursuant to requirements under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). Courts also have consistently recognized that EPA procedures or
environmental reviews under enabling legislation are functionally equivalent to the NEPA process
and thus exempt from the procedural requirements in NEPA.
95
An explanation of EPA’s “Environmental Impact Statement (EIS) Rating System Criteria” is available at
http://www.epa.gov/compliance/nepa/comments/ratings.html.
96
Such permits are more likely to be issued by states authorized to implement provisions of the Clean Water Act, and
hence would not be considered “federal actions” subject to NEPA compliance. Section 511(c) of the Clean Water Act
exempts other EPA actions under the law from the requirements of NEPA.
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Table 24. Major U.S. Code Sections of the
National Environmental Policy Act, as Amended
(codified generally at 42 U.S.C. 4321-4347)
42 U.S.C.
Section Title
National Environmental
Policy Act, as Amended
Chapter 55—National Environmental Policy
4321
Congressional Declaration of Purpose
Sec. 2
Subchapter I—Policies and Goals
4331
Congressional declaration of national environmental policy
Sec. 101
4332
Cooperation of agencies; reports; availability of information;
recommendations; international and national coordination of efforts
Sec. 102
4333
Conformity of administrative procedures to national environmental
policy
Sec. 103
4334
Other statutory obligations of agencies
Sec. 104
4335
Efforts supplemental to existing authorizations
Sec. 105
Subchapter II— Council on Environmental Quality
4341
Omitted (annual environmental quality report to Congress)
Sec. 201
4342
Establishment; membership; chairman; appointments
Sec. 202
4343
Establishment of personnel, experts and consultants
Sec. 203
4344
Duties and functions
Sec. 204
4345
Consultation with Citizens’ Advisory Committee on Environmental
Quality and other representatives
Sec. 205
4346
Tenure and compensation of members
Sec. 206
4346a
Travel reimbursement by private organizations and federal, state, and
local governments
Sec. 207
4346b
Expenditure in support of international activities
Sec. 208
4347
Authorization of appropriations
Sec. 209
Note: This table shows only the major U.S. Code sections. For more detail and to determine when a section was
added, consult the official printed version of the U.S. Code.
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Author Contact Information
David M. Bearden, Coordinator
Specialist in Environmental Policy
dbearden@crs.loc.gov, 7-2390
Mary Tiemann
Specialist in Environmental Policy
mtiemann@crs.loc.gov, 7-5937
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
Robert Esworthy
Specialist in Environmental Policy
resworthy@crs.loc.gov, 7-7236
Linda Luther
Analyst in Environmental Policy
lluther@crs.loc.gov, 7-6852
Jerry H. Yen
Analyst in Environmental Policy
jyen@crs.loc.gov, 7-9113
James E. McCarthy
Specialist in Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
Congressional Research Service
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