All questions

Environmental protection

i Air quality

The Clean Air Act (CAA), enacted in 1970, was the first modern federal environmental control statute.6 It established a federal and state partnership for the development and implementation of air quality regulations. The CAA was amended significantly in 1977 and again in 1990.

Overview

EPA adopts national air quality standards (NAAQS) pursuant to Section 109 of the Act.7 These standards are designed to protect public health and welfare. Standards have been established for six pollutants: sulphur dioxide, particulate matter, nitrogen dioxide, carbon monoxide, ozone and lead.8

The NAAQS are implemented through state implementation plans (SIPs).9 SIPs are regulations setting forth specific emission limitations designed to attain and maintain the NAAQS. The plans are developed by the states and submitted to EPA for approval. Once approved, the SIPs are enforceable by both the states and the federal government.

In 1977, Congress added a new Part D to the CAA, addressing problems of continuing non-attainment of the NAAQS. It required emission limits based on 'reasonably available control technology' (RACT) for all existing major sources.10 The 1977 amendments also required, for new sources in non-attainment areas, pre-construction permits based on attainment of the 'lowest achievable emission rate'.11 The 1977 amendments required pre-construction review and permits for major new sources in attainment areas, which are to achieve limits based on the 'best available control technology'.12 In addition, SIPs in attainment areas must assure that maximum allowable 'increments' (or increases in the concentration of pollutants) shall not be exceeded.13

In 1990, Congress enacted CAA amendments that revised the provisions for areas not attaining the national ambient air quality standards, strengthened automotive tailpipe and fuel requirements, expanded the number of hazardous air pollutants regulated, added requirements for the electric utility industry to control acid rain, and established an important programme of operating permits for existing facilities.14

Programmes limiting greenhouse gas emissions from power plants and motor vehicles are discussed in Section VII.

Control requirements to meet NAAQS

In ozone non-attainment areas, 'major sources' of criteria pollutants are required to apply all RACTs.15 Sources in 'serious' PM10 areas must apply best available control measures.16

Major new sources of volatile organic compounds (VOCs) and NOx in ozone non-attainment areas must have emission offsets, which vary according to the area's classification.17 In addition, special rules apply in serious, severe and extreme ozone non-attainment areas.

In ozone non-attainment areas, SIPs must include motor vehicle emissions control inspection and maintenance programmes of varying stringency depending upon the area's classification.18 In carbon dioxide non-attainment areas classified as serious, SIPs must require oxygenated gasoline in certain areas if necessary to attain the NAAQS by the attainment deadline.19 In some cases, states may be required to institute transportation control measures to offset growth or bring emissions within projected levels.

New source standards

Section 111 of the CAA authorises EPA to promulgate standards of performance for new stationary sources.20 These standards are to require the degree of emission limitation achievable by 'the best system of emission reduction, which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated'.21 EPA has established standards of performance for a number of industry categories, including steam-generating units, incinerators, petroleum refineries, steel plants, kraft pulp mills, automotive surface coating, synthetic organic chemicals plants and natural gas processing plants.22

Motor vehicles

Section 202 of the CAA authorises EPA to establish motor vehicle emission standards.23 The Act also authorises EPA to regulate fuels. Pursuant to Section 211 of the Act, EPA has promulgated two sets of standards that limit the lead content of fuels. These standards are designed to prevent interference with catalytic emission control devices and to protect public health.24

The Clean Air Act Amendments of 1990 require more stringent tailpipe standards to control exhaust pollutants from cars and trucks, improvements in the controls of evaporative emissions from vehicles, and the installation of equipment on vehicles to control refuelling emissions. The amendments contain a new standard to control CO emissions at cold temperatures, and require the installation of self-diagnostic equipment on vehicles to monitor the functions of critical emission control equipment. The amendments also establish a new programme requiring the sale of 'reformulated gasoline' (generally blended with ethanol) in the nine worst ozone non-attainment areas to reduce emission of VOCs and other pollutants.

Hazardous pollutants and acid rain

The CAA authorises EPA to set health-based standards for hazardous air pollutants.25 The 1990 amendments identify a list of 189 hazardous pollutants and direct EPA to establish standards based on the use of the 'maximum achievable control technology'. The list includes chemicals and metals used in many industrial processes. Standards for new sources must require a degree of reduction that is not 'less stringent than the emission control that is achieved in practice by the best controlled similar source'.26

Federal regulations enacted in 2011 require power plants to limit their emissions of toxic air pollutants, such as mercury, under Sections 111 (new source performance standards) and 112 (the toxics programme) of the CAA. However, the current EPA is reviewing whether it is 'appropriate and necessary' to set standards for mercury, other pollutants and the specific standards set by the rule, and it is reportedly planning to publish a revised rule.

The 1990 amendments direct EPA to establish a programme to reduce the adverse effects of acidic deposition. The Act mandates a national emissions cap of 8.95 million tons per year on emissions of sulphur dioxide from electric utility power plants, to be achieved in two phases. As a result of these stringent new limitations, total annual sulphur dioxide emissions will be reduced by 10 million tons below 1980 levels. Title IV also requires that certain coal-fired electric utility boilers reduce their emissions of nitrogen oxides through installation of 'low NOx' burner technologies or their equivalent.

The acid rain programme contains a trading system with a fixed number of fully marketable allowances.27 Existing utility sources were granted allowances based on their historic fuel use and the emission limitations applicable in 1985. Utility units may not emit sulphur dioxide in quantities exceeding the number of allowances that they hold for a given year.

Permit programme

The 1990 amendments to the Act added a new Title V to establish an operating programme.28 The Title V permit programme is designed to be administered by the states if EPA approves a state programme. EPA may veto any permit that it believes does not comply with the applicable CAA requirements. In general, each operating permit will contain enforceable emission limitations, a schedule for compliance, and monitoring and reporting requirements. Sources subject to the Title V permit requirements include any 'major source' as defined in Sections 112 or 302 or Part D of Title I, any source subject to standards or regulations under Sections 111 or 112, or any source required to have a permit under Part C or Part D of Title I. Under Section 502(b)(6) of the Act, each state permit programme must provide for public notice of, and an opportunity for public comment and a hearing on, all permit applications. Failure to obtain a permit is subject to civil penalties and possible criminal sanctions.29

Enforcement

The CAA is enforceable by the United States, and most of the Act's regulatory programmes are also enforceable by states with comparable programmes that have been approved by EPA. EPA has the authority to issue compliance orders and to seek administrative penalties. The federal government may also seek injunctive relief and civil as well as criminal penalties in federal district courts.30 Citizens may also bring suits seeking compliance and penalties.31

ii Water quality

Discharges of process wastewater and stormwater are regulated under the Clean Water Act (CWA or the Act) through a federal and state programme of facility permits and regulatory standards.32 As enacted in 1972, the CWA established a permit programme for discharges of pollutants, by direct industrial dischargers and municipal treatment works, to require attainment of technology-based limits as well as any more stringent water-quality-based standards imposed by states.

Technology-based effluent limitations

In 1977, Congress enacted revisions to the Act that required achievement of 'best-available technology' (BAT) limitations for toxic pollutants and 'best conventional pollutant control technology' limitations for conventional pollutants, such as suspended solids, biological oxygen demanding pollutants, faecal coliform and pH.33 In addition, 'new-source' direct dischargers are subject to standards of performance for new sources.34 These technology-based requirements are defined by EPA in extensive 'effluent guidelines' regulations that are set forth in 40 CFR Part 400 et seq.

'Indirect dischargers' to publicly owned treatment works (POTWs) must comply with pre-treatment standards for pollutants that would interfere with or pass through the POTWs.35 The new source and pre-treatment standards are generally identical to BAT limits for existing direct dischargers. Indirect dischargers are not required to obtain a NPDES permit, and instead EPA pre-treatment standards themselves are enforceable against indirect dischargers.

Scope of the Act

The CWA is applicable to a 'discharge of pollutants' into 'waters of the United States' from a 'point source' (a discrete conveyance, such as a pipe or ditch). The meaning of 'waters of the United States' continues to be debated. In Rapanos v. United States, 547 US 715 (2006), a 4-4-1 split decision, the plurality opinion by Justice Scalia opined that waters of the United States include wetlands only if they have a surface connection to traditional water bodies, namely oceans, streams and lakes. In a separate opinion, Justice Kennedy expressed the view that wetlands are covered by the statute if they significantly affect the chemical, physical and biological integrity of traditional navigable waters. In the Obama administration, the government took the position that a water body falls within the jurisdiction of the CWA if it satisfies the test in either the plurality opinion or Justice Kennedy's separate opinion in Rapanos. As a result of this confusion, the scope of the Clean Water Act continues to generate controversy.

After Rapanos, new EPA regulations defining 'waters of the United States' were promulgated by the Obama administration in 2015. These regulations have been challenged in court and, at the time of writing, the lawsuits have not been finally resolved.36 Subsequently, in the autumn of 2017, EPA announced an intent to repeal the existing definition and adopt a revised definition of 'waters of the United States' consistent with the views of Justice Scalia in the Rapanos case.37 On 22 October 2019, the Trump administration published a final rule to repeal the 2015 Clean Water Rule: Definition of 'Waters of the United States' and to restore the narrower regulatory text that existed prior to the 2015 Rule.38 On 21 April 2020, the EPA and the Department of the Army published the Navigable Waters Protection Rule (NWPR) in the Federal Register to finalise a revised definition of 'waters of the United States' under the CWA.39 A number of states and other local jurisdictions, as well as environmental and agriculture groups, filed suits seeking to challenge the 2020 Rule.

Subsequently, President Biden made repeal and replacement of NWPR a priority and, in June 2021, EPA and the Department of the Army announced that they would proceed with a public outreach process followed by rulemaking to restore prior protections.40

In the pending lawsuits, the Department of Justice filed motions for voluntary remand of the NWPR. In a recent case, a Federal District Court ruled that the NWPR must be vacated because it involves 'fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR's definition of “waters of the United States”',41 noting that agencies will likely alter the NWPR and that the pre-2015 regulations were familiar to the agencies and the public. The agencies are expected to propose a new regulation in the coming months.

Permit requirements

Section 404 of the CWA gives the Corps the authority to issue permits for the discharge of dredged or fill material to waters of the United States.42 Activities that may require Section 404 authorisation include land-clearing, construction of dams and certain farming activities. Preparation of an environmental impact statement in compliance with the National Environmental Policy Act and other statutes, such as the Endangered Species Act, may be triggered by a permit application, and compensatory mitigation may be required.43 The statute contains exemptions for certain activities, including normal farming and ranching, and the maintenance of dykes, dams, irrigation and drainage ditches.

Dischargers to waters of the United States must obtain and comply with a permit under the National Pollutant Discharge Elimination System (NPDES) programme pursuant to Section 402 of the CWA.44 Permits must be obtained from EPA or from a state that has an EPA-approved permit programme. NPDES permits contain effluent limitations that apply the technology and water-quality-based requirements of the Act, schedules of compliance and requirements for regular discharge monitoring and self-reporting of monitoring results to the appropriate regulatory authorities.

Water quality requirements

Water quality standards are adopted by the states and submitted to EPA for approval.45 These standards must take into account the uses of a body of water, such as public water supply; propagation of fish and wildlife; recreation; and agricultural, industrial and other purposes, although in practice EPA has pressed the states to require all streams to meet standards for fishing and swimming, and to include an anti-degradation policy to protect existing uses and high-quality waters. The EPA's criteria for reviewing state standards are set forth in 40 CFR Sections 131.5–131.6.

Total maximum daily loads (TMDLs) (i.e., the maximum amount of a given pollutant that may be discharged to a water body from all sources in a day) are key to achieving water quality standards. Section 303(d) of the Act provides that the states shall identify waters that fail to achieve water quality standards, determine the TMDL needed to achieve water quality standards, and allocate these loads among dischargers in permits and water quality plans.46 States are proceeding to develop TMDLs and implement them in NPDES permits.

Under Section 311 of the CWA, EPA has published regulations (40 CFR Part 116) that determine the quantities of oil and hazardous substances, the discharge of which may be harmful to the public health or welfare, known as 'reportable quantities'.47 Section 311 does not cover discharges that are in compliance with, or otherwise subject to, an NPDES permit. A party that discharges a reportable quantity of a listed substance must notify the authorities, is subject to fines, and the federal government is authorised to arrange for the removal of oil or a hazardous substance and to assess the responsible party with the costs of removal.

Enforcement and judicial review

Section 309(a)(3) of the Act authorises EPA to issue an administrative order whenever it finds that a person is in violation of enumerated provisions of the Act or a permit implementing these provisions.48 EPA may also sue for civil penalties for any violation of an NPDES permit, an EPA order or the Act.49 Section 309(c) of the CWA authorises EPA to seek criminal penalties against responsible persons for wilful or negligent violations and for knowingly making any false statement or report.50

iii Chemicals

The Toxic Substances Control Act (TSCA) was enacted in 1976 and gave EPA authority to require testing to determine the effects of chemicals and to impose restrictions on new and existing chemicals where necessary to protect the public health and the environment. Significant amendments to TSCA, enacted in 2016, remain to be fleshed out by EPA in the years ahead and are discussed below.

The definition of a 'chemical substance' under Section 3(a)(A) of TSCA is broad and includes any organic or inorganic substance or any combination of such substances, including synthetic organic compounds, raw agricultural commodities, microorganisms, ores and minerals.51 Food, food additives, drugs, cosmetics and medical devices, which are regulated under other laws, such as the Food, Drug and Cosmetic Act, are exempt from TSCA. Furthermore, substances manufactured solely for export from the United States are exempt under Section 12(a) of TSCA, but the exporter must provide notice to EPA if the chemical is regulated under certain provisions of TSCA.52

Section 2(b) of TSCA authorises EPA to take action where chemicals present an unreasonable risk of injury.53 EPA may take action unless the chemicals in question are regulated under another federal statute.

Section 4 of TSCA authorises EPA to promulgate regulations requiring manufacturers, importers and processors to test chemical substances that may present an unreasonable risk to health or the environment, or if there are insufficient data on the manufacture, use or disposal of the chemical, or if the chemical is produced in substantial quantities and there may be substantial human exposure or environmental release.54 EPA has also negotiated consent agreements with companies and trade groups to provide test data on chemicals.55

Pre-manufacture notice

Under Section 5 of TSCA, a pre-manufacture notice must be submitted to EPA at least 90 days before the start of production or import of a new chemical or an existing chemical used for a significant new use. Existing chemicals are those currently or previously manufactured or processed in the United States and are listed on the TSCA inventory that EPA maintains. A new chemical is any chemical not on the TSCA inventory. Manufacturers and importers must submit specific information in their notice to EPA, including chemical identity, impurities, production volumes, processing methods, intended uses, worker exposure and test data.56 There are exemptions for new chemicals manufactured or imported in small quantities, and for test marketing of a new chemical.57

After a pre-manufacture notice is received, EPA has 90 days to review the company's notice, and can extend its review to 180 days for good cause. If EPA does not act within the review period, the company may begin to manufacture or import the substance. If EPA concludes that a chemical is hazardous or there is an unreasonable risk or unanswered safety questions, under TSCA Section 5(e) EPA may issue an order to prevent or limit manufacture of the chemical. Alternatively, EPA and the company submitting the pre-manufacture notice may negotiate a consent order providing for various control measures, including use limits, labelling requirements, protective equipment for workers, and limits on releases to the environment.

Section 5(f) of TSCA allows EPA to take action if the agency determines that activities involving a new chemical present an unreasonable risk to health or the environment. In that event, EPA can publish a rule that limits or delays the manufacture, use or disposal of the chemical.58

Existing chemicals

For a chemical on the TSCA inventory, EPA can issue a 'significant new use rule' (SNUR), requiring that any company wishing to manufacture or process the chemical give EPA 90 days' prior notice. EPA may take regulatory action, upon receiving a SNUR notice, to control the proposed activity. Subsequent manufacturers or importers must observe such SNUR restrictions or submit their own SNUR notice to EPA at least 90 days before initiating activities inconsistent with EPA restrictions.

EPA is authorised under TSCA Section 6 to impose restrictions based on a finding that the manufacture, processing, distribution, use or disposal of a chemical or mixture presents an unreasonable risk of injury to health or the environment.59 The restrictions may include banning the substance or mixture, prohibiting or limiting certain uses, or labelling and other hazard notification requirements, taking into account a chemical's harm and the economic and social costs of the restriction. In addition, EPA may publish a regulation that is effective immediately if there is an imminent hazard.60

Enforcement and record-keeping

EPA may, under Section 7 of TSCA, file a suit in federal district court if the agency concludes that the substance or mixture presents an imminent hazard, namely an imminent and unreasonable risk of serious or widespread injury to health or the environment.61 In such an action, the court can issue an order providing injunctive relief, including public notice of risks and a recall of the chemical or product.

Section 8 of TSCA authorises EPA to promulgate rules that require record-keeping and reporting of information concerning the health and environmental effects of chemicals or mixtures.62 Section 8(c) of TSCA requires manufacturers, processors and distributors to maintain records of significant alleged adverse reactions to health or the environment.63 Section 8(d) of TSCA also authorises EPA to require the submission of health and safety studies.64 Any manufacturer, importer or distributor who obtains information indicating that a chemical presents a substantial risk of injury to health or the environment is required by Section 8(e) of TSCA to report the risk information to EPA within 15 days.65

EPA and US Customs regulations require importers to certify at the port of entry into the United States either that the substance is regulated by and complies with TSCA or that it is exempt or not subject to TSCA.66

Sections 15, 16 and 17 of TSCA provide for penalties for violations of TSCA and EPA's implementing regulations. EPA may also bring a lawsuit under Section 17 of TSCA to prevent violations or to compel actions required by the statute or to seize and condemn chemicals and articles containing chemicals that have been manufactured or distributed in violation of TSCA.

TSCA reform legislation

In June 2016, President Obama signed into law significant amendments to TSCA – the Frank R Lautenberg Chemical Safety for the 21st Century Act, Public Law No. 114-182. The 2016 amendments clarify EPA's review authority for new and existing chemicals and the expected pace and prioritisation of regulatory efforts. The new law includes improvements, such as:

  1. mandatory requirement for EPA to evaluate existing chemicals with clear and enforceable deadlines;
  2. new risk-based safety standards;
  3. increased public transparency for chemical information; and
  4. consistent source of funding for EPA to carry out the responsibilities under the new law.

One year later, on 22 June 2017, EPA announced a number of implementation activities that have enabled EPA to meet its first-year statutory responsibilities. EPA completed the following implementation activities as of that date:67

  1. a rule to establish EPA's process and criteria for identifying high-priority chemicals for risk evaluation and low-priority chemicals for which risk evaluation is not needed;
  2. a rule to establish EPA's process for evaluating high-priority chemicals to determine whether they present an unreasonable risk to health or the environment;
  3. a rule to require industry reporting of chemicals manufactured or processed in the United States over the past 10 years;
  4. scope documents for the initial 10 chemicals for risk evaluation under the amended law, including how the evaluation will be conducted; and
  5. guidance for external parties interested in submitting draft risk evaluations for EPA consideration.

With respect to the review of existing chemicals, Section 4 of the 2016 Act directs EPA to first determine whether an unreasonable risk to human health and the environment exists, without consideration of costs. If an unreasonable risk is found, EPA is then to evaluate various regulatory options, including consideration of costs and benefits. Section 6 of the 2016 Act directs EPA to prioritise existing chemicals as 'high priority' or 'low priority'. EPA must give priority to known human carcinogens, chemicals with high acute and chronic toxicity, and certain persistent, bioaccumulative and toxic chemicals. EPA must ban, phase out or impose restrictions on any high-priority chemical that poses an unreasonable risk.

In September 2018, EPA released a white paper: 'A Working Approach for Identifying Potential Candidate Chemicals for Prioritization.' By December 2019, EPA had to designate at least 20 chemical substances as high priority for risk evaluation and 20 chemical substances as low priority for which risk evaluation is not currently warranted. In 2019, EPA planned to open 73 chemical-specific public dockets, one for each of the remaining chemicals on the 2014 TSCA Work Plan.68

The review of new chemicals is changed under the 2016 Act. Under Section 5 of the 2016 Act, EPA is required to review and affirmatively approve new chemicals and significant new uses before they are introduced into commerce. EPA must determine whether the chemical is likely to present an unreasonable risk of injury to health or the environment under the conditions of use.69 If EPA makes a finding of unreasonable risk, it must take regulatory action. The new term 'condition of use' is defined as the circumstances under which a chemical is manufactured, processed, distributed in commerce, used or disposed of. The 2016 Act may thus have an increased impact on downstream users. In December 2019, EPA updated its Working Approach for making new chemicals determinations under Section 5 of TSCA. The updated document was discussed at a public meeting on 10 December 2019, and comments were due on or before 18 February 2020.70

In October 2021, EPA announced that the Agency is developing a national PFAS testing strategy that intends to use its Toxic Substances Control Act (TSCA) authorities to require PFAS manufacturers to provide information on PFAS.71

Companies will wish to review the chemicals they use, process or distribute and be prepared to participate in EPA's implementation of this new law. More information on EPA's progress to date and a full list of all the TSCA implementation activities can be found on EPA's website.72

FIFRA

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)73 provides for federal regulation of pesticide distribution, sale and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications 'will not generally cause unreasonable adverse effects on the environment'. EPA may take enforcement actions against the distribution or sale of unregistered pesticides, registered pesticides whose composition differs from that in the product's registration, and registered pesticides that are misbranded or adulterated. EPA may also stop the sale of or seize pesticide products that do not meet FIFRA requirements.

iv Solid and hazardous waste

The Resource Conservation and Recovery Act (RCRA), 42 USC Section 6901 et seq., establishes a cradle-to-grave programme regulating the management of hazardous wastes that is directed by EPA and implemented in large part by the various states. The RCRA programme identifies a broad universe of waste materials as hazardous, and regulates the handling of this waste by generators, transporters, and treatment, storage and disposal facilities. RCRA also imposes corrective action requirements. However, unlike the Superfund statute, 42 USC Section 9601 et seq., which focuses on remedying past waste disposal at abandoned sites, RCRA addresses the ongoing management of hazardous wastes at manufacturing plants and other facilities. Most states have been authorised by EPA to implement RCRA within their respective state, and states can also impose more stringent requirements than required by federal law.

RCRA was originally enacted in 1976. In 1984, Congress amended RCRA extensively to authorise the regulation of underground tanks, the clean-up of contaminated areas of industrial sites not covered by the original law and increased restrictions on the disposal of wastes on land.74 In October 2021, EPA announced new steps towards both evaluating the existing data for four PFAS under the Resource Conservation and Recovery Act (RCRA) and strengthening the ability to clean up PFAS contamination across the country through the RCRA corrective action process.75

Definition of hazardous waste

Subtitle C of RCRA regulates 'solid waste' that is 'hazardous'. Under RCRA, solid waste is any garbage, refuse, sludge or other discarded material, including solid, liquid or gaseous material that is contained.76 EPA's regulation defining the term 'solid waste' includes secondary materials that are incinerated for energy recovery and disposed of on the ground.77 The definitions distinguish between types of materials (sludges, by-products) and types of activities (reclamation, reuse and disposal). The definition excludes industrial wastewater discharges subject to the Clean Water Act permit programme,78 and recycled materials, such as secondary materials that are returned to the original process and reused.79

Once a waste is determined to be solid waste, it is considered 'hazardous' if the waste exhibits one of four characteristics (ignitability, corrosivity, reactivity or toxicity) as determined in tests for these kinds of waste.80 The toxicity characteristic is determined by the Toxicity Characteristic Leaching Procedure designed to simulate the leaching that would occur at a municipal landfill.81 Waste is also deemed hazardous if it is specifically listed by EPA as hazardous.82 The Agency has also listed non-specified sources (F-listed), specific industrial processes (K-listed), and discarded commercial chemical products and pesticides (P and U wastes).83 Household waste, agricultural waste used for fertilisers and mining waste are exempt.84 EPA has decided not to regulate oil and gas industry exploration and production wastes, and mineral extraction, beneficiation and certain mineral processing. Under EPA's mixture rule, any solid waste that is mixed with a listed hazardous waste remains a hazardous waste.85 In addition, any waste resulting from the treatment, storage or disposal of any listed waste is a hazardous waste.86

Obligations of generators

Generators of hazardous waste must notify EPA of the initiation of hazardous waste activities, obtain an EPA identification number and properly store hazardous wastes. Waste must be properly labelled and be in proper containers for shipment pursuant to Department of Transportation (DOT) requirements.87 Generators must use a manifest to track hazardous waste shipments,88 and maintain records and submit biennial reports that summarise their waste generation activities.

Generators may accumulate wastes on site for 90 days without being subject to all the requirements for treatment, storage and disposal facilities. They must, however, label the waste as hazardous and note the date when accumulation begins.89 Generators that produce no more than 100 kilograms of hazardous waste per month are exempt.90

Obligations of transporters

Transporters of hazardous waste must comply with EPA regulations in 40 CFR Part 263, which require that they obtain EPA identification numbers, use proper containers and implement the hazardous waste manifest system by ensuring that the manifest accompanies the waste to its next point of delivery.91 If a discharge of hazardous waste occurs during transport, the shipper must provide notice to the EPA National Response Center and must take appropriate action to protect human health and the environment, including clean-up of the discharge.92

Transporters are also extensively regulated by the US Department of Transportation under the Hazardous Materials Transportation Act, 49 USC Section 1801 et seq. The DOT regulations applicable to transportation of hazardous waste are contained in 49 CFR Part 171.

TSDF facilities

Unless otherwise exempt, all facilities that treat, store or dispose of hazardous waste must obtain a permit.93 Treatment, storage and disposal facilities (TSDFs) are subject to several types of operating and design standards: general facility standards, closure and post-closure care standards, and unit-specific standards. These standards are contained in 40 CFR Part 264. The general standards require that each TSDF obtain an identification number, obtain or conduct waste analyses, implement security measures, schedule regular inspections and provide personnel training.94 Each TSDF must have a closure plan that includes procedures for removing contaminated soil, cleaning equipment and performing necessary sampling and analysis.95

Each TSDF must demonstrate its financial ability to meet closure and post-closure obligations as well as third-party liability.96 There are several means to demonstrate financial ability, including self-insurance, insurance policies, surety bonds and parent company guarantees.97

EPA has established specific standards for containers, tanks, land disposal facilities, miscellaneous units, incinerators, furnaces and boilers. Permitted tank systems used to manage hazardous waste must have secondary containment systems and leak detection.98 Incinerators must demonstrate an ability to meet a destruction efficiency of 99.99 per cent of the principal organic hazardous constituent identified in the permit.99 Landfills generally must have double liners, a leachate collection system and groundwater monitoring.100 Surface impoundments, including lagoons and ponds, are subject to similar requirements.101 In 1984, Congress directed that waste not be disposed of on land unless it is treated to meet standards promulgated by EPA.102

Enforcement

EPA has authority under RCRA Section 7003 to require persons to take action necessary to address an 'imminent and substantial endangerment to health or the environment'.103 As revised in 1984, Section 3004(u) of RCRA also allows EPA to require corrective action for releases from solid waste management units for any person seeking a RCRA permit after 1984, regardless of when the waste was placed in the unit.104 Section 3004(v) authorises EPA to require corrective action beyond the boundary of a TSDF where necessary to protect human health and the environment.105

The RCRA 2020 programme was established by EPA to measure its progress in achieving national clean-up goals, namely human exposures under control and mitigation of contaminated groundwater. EPA's overall goal is to take remedial action at 95 per cent of facilities requiring corrective action by the year 2020. It is unclear whether EPA 2020 goals will be achieved.106

Underground storage tanks

In 1984, Congress established a comprehensive programme for regulating underground storage tanks (USTs) containing petroleum products and hazardous substances under CERCLA but excluding hazardous wastes under RCRA.107 Owners of USTs are required to construct them to maintain structural integrity, to install leak detection systems, to report releases of regulated substances, to take corrective action for releases and to demonstrate financial responsibility.108 The statute contains several exemptions, including tanks used to store heating oil for consumptive use on the premises where stored, and storage tanks in an underground area such as a basement that are above the surface of the floor.109

Non-hazardous waste

For non-hazardous waste, states are directed to develop solid waste management plans and to eliminate the open dumping of solid waste.110 Landfills that do not meet EPA design criteria and engage in practices that constitute open dumping are banned.111 Medical waste is regulated under Subtitle J of RCRA, 42 USC Section 6992 et seq., which requires record-keeping and manifesting. EPA has promulgated regulations applicable to generators, transporters and processors of used oil (40 CFR Part 279, subparts C, E and F). EPA has also published detailed regulations for the use and disposal of sewage sludge.112

v Contaminated land

Unlike most federal environmental statutes, which contain regulatory programmes designed to prevent future pollution, CERCLA addresses releases or threats of releases of hazardous substances as a result of past waste disposal.113

Overview

Section 101(14) of CERCLA defines a 'hazardous substance' as a substance falling within six categories regulated under other environmental statutes. EPA has codified the list of CERCLA hazardous substances in 40 CFR Part 302. This list is quite lengthy and includes natural substances as well as man-made chemicals.

CERCLA gives the government two basic enforcement tools. EPA may seek to have responsible parties perform remedial action voluntarily or order them to perform remediation under Section 106 of the Act.114 Alternatively, EPA may arrange to have the necessary remedial action performed by an outside contractor and then seek cost reimbursement from responsible parties.115

The statute provides that, where there is a release or threatened release of a hazardous substance from a facility that causes the incurrence of response costs, responsible parties are liable to the government for all costs of removal or remedial action incurred by the US government or a state, and damages for injury to, destruction of, or loss of natural resources.116 The terms 'removal action' and 'remedial action' are defined broadly in the Act.117 The government may not undertake response action as to naturally occurring substances, or for exposure within residential buildings or business or community structures.118 Courts have held that claims for lost property values, and loss of income or profits are not recoverable response costs under CERCLA. See Wehner v. Syntex Corp, 681 F Supp 651, 653 (ND Cal 1987). Similarly, the courts have held that CERCLA does not authorise parties to bring suits for recovery of personal injuries.119

Liability and defences

Section 107(a) of the Act establishes four categories of responsible parties:

  1. the owner and operator of a vessel or a facility;
  2. any person who at the time of disposal of any hazardous substance owned or operated the facility;
  3. any person who by contract, agreement or otherwise arranged for disposal or arranged with a transporter for disposal of hazardous substances owned or possessed by such person; and
  4. any person who accepts hazardous substances for transport to disposal facilities or sites selected by such person.

The third category of 'arranger' or 'generator' liability has been most frequently applied to manufacturing companies. A company is liable as an arranger if it takes intentional steps to dispose of a hazardous substance.120

The liability established by Section 107 is subject to the following defences: an act of God; an act of war; and an act or omission of a third party.121 Defendants have rarely relied upon the first two defences. The third defence applies to damage caused solely by an act or omission of a third party 'other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly with the defendant'.

Section 107(b) of CERCLA provides an affirmative defence to current owners of contaminated property if the release and the damage were wholly caused by an act or omission of a third party other than one whose act or omission occurred in connection with a contractual relation with the defendant. The statute also excludes innocent landowners from the definition of 'contractual relationship'.122 This provision allows a defendant to avoid liability if it can show that the property was acquired after the disposal took place and the defendant 'did not know and had no reason to know' that hazardous substances had been disposed of on the property.

Although the statute as enacted in 1980 was silent on the issue, the courts have held, based on general tort law principles, that if two or more defendants cause an indivisible harm, 'each is subject to liability for the entire harm'.123 Subsequent judicial decisions have adopted the approach in Chem-Dyne and have held that the statute imposes strict, joint and several liability to the government (see, e.g., United States v. Monsanto, 858 F2d 160 (4th Cir 1988)). The courts have also held that liable parties at a multiparty Superfund site may avoid joint and several liability if a court finds a 'reasonable basis' to apportion their liability.124

CERCLA provides a right of contribution. Section 113(f) of the Act, added in 1986, expressly provides that '[a]ny person may seek contribution from any other person who is liable or potentially liable under Section 9607(a)' (42 USC Section 9613(f)(1)). Section 113(f)(2) provides contribution protection for parties who have settled their CERCLA liability with the United States or a state. In addition, companies may be able to recover clean-up costs from their insurance carriers. The terms of such insurance policies have changed over time, and the obligations of carriers to indemnify for Superfund losses will depend on the language of applicable policies.

Section 113(f)(1) of CERCLA states that, in resolving contribution claims, the courts may 'allocate response costs among liable parties using such equitable factors as the court determines are appropriate'. Judicial decisions and commentators have focused on the amount of hazardous waste involved, the degree of toxicity of the waste, the degree of involvement by the parties, the degree of care exercised by the parties and the degree of cooperation with government officials (e.g., United States v. A&F Materials, 578 F Supp 1249, 1256 (SD Ill 1984)).

Clean-up of contaminated sites

Since the passage of CERCLA in 1980, EPA has identified thousands of inactive hazardous waste disposal sites as potential sites for CERCLA remediation. These sites are screened, and priority sites for action are listed on the National Priorities List. Once EPA determines that remedial measures may be necessary, the agency undertakes various steps to study the site further, to select a remedy and to design and implement the remedy.

Section 105 of CERCLA provides for the establishment of a national contingency plan (NCP).125 The plan sets forth the organisational structure, procedures and standards for responding to releases of hazardous substances under CERCLA. The NCP is set forth in 40 CFR Part 300. Sites included on the NPL become eligible for government-financed remedial action.126

To select and implement a remedial action, EPA must go through several steps, including a remedial investigation and feasibility study. The remedial investigation (RI) is a process to determine the nature and extent of the problem at a site.127 The feasibility study (FS) develops and evaluates appropriate remedial alternatives using nine criteria, including overall protection of human health and the environment, compliance with applicable or relevant and appropriate requirements, long-term effectiveness and permanence, reduction of toxicity, mobility or volume through treatment, implementability, cost, and state and community acceptance.128

Once the RI/FS is completed, EPA reviews the proposed remedial alternatives and selects a remedy after circulating a draft and considering public comments. The agency's final remedy is embodied in a document called a record of decision (ROD). The ROD must document all the facts, analyses and policy determinations considered in the selection of the remedy.129 The Superfund programme remains controversial despite various 'reform' efforts. Critics continue to focus on a number of issues, including the costly and lengthy study process, the problem of defining how clean is clean, and the role of costs in clean-up decisions.130

Settlement and enforcement

Responsible parties may settle with the government by paying appropriate response costs or by agreeing to perform the remedy. Agreements to perform the remedy must be embodied in a consent decree.131 CERCLA provides that a party who has entered into an administrative or judicially approved settlement with the government 'shall not be liable for claims for contribution regarding matters addressed in the settlement'.132

Alternatively, Section 106(a) of CERCLA authorises the government to issue orders requiring parties to undertake specified remedial actions. Any person who without sufficient cause fails or refuses to comply with such an order is subject to fines and may be liable for damages of three times the amount of costs incurred by the government as a result of failure to take action.

The government may also undertake to perform the clean-up actions required and then bring an action in federal court under Section 107(a) of CERCLA seeking to recover its response costs at a site. CERCLA provides that judicial review of any issues concerning the adequacy of any response action taken by EPA shall be based on the administrative record.133

In 2017, EPA announced recommendations in response to its former administrator Scott Pruitt's request for steps to improve the Superfund programme. The recommendations reflect the following priorities:

  1. expediting clean-up and remediation;
  2. reinvigorating responsible party clean-up and reuse;
  3. encouraging private investment;
  4. promoting redevelopment and community revitalisation; and
  5. engaging partners and stakeholders.134

Affected parties will wish to continue to observe how these policies are implemented in practice.

Natural resource damages

CERCLA authorises the government to recover damages to natural resources. A claim for damage to natural resources must be brought by the designated trustees for natural resources acting on behalf of the public.135 The designated federal trustees are the Secretaries of Interior, Commerce, Defense, Agriculture and Energy.136 The states have generally also designated one or more trustees for state resources.

The elements of liability for natural resources damages are the same as those under Section 107(a) of CERCLA. In addition, the trustee must show that there has been an 'injury to, destruction of, or loss of natural resources resulting from' a release of hazardous substances.137 Section 107(f) of CERCLA bars the recovery where the damage and the release causing the damage occurred wholly before 11 December 1980, the date CERCLA was enacted.138 Section 101(16) of CERCLA defines natural resources to mean 'land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources' belonging to the United States or a state.139

The statute does not explicate how to measure natural resource damages. The Department of the Interior promulgated regulations pursuant to 42 USC Section 9651(c) for the assessment of natural resource damages.140 The trustees are not bound to use the Interior Department's damage assessment regulations and increasingly use a habitat equivalency analysis to assess damages.141