Joyce & Paul, Attorneys and Counselors

The Clean Air Act is the comprehensive Federal law that regulates air emissions from area, stationary, and mobile sources. This law authorizes the U.S. Environmental Protection Agency to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment. The goal of the Act was to set and achieve NAAQS in every state by 1975. The setting of maximum pollutant standards was coupled with directing the states to develop state implementation plans (SIP's) applicable to appropriate industrial sources in the state. The Act was amended in 1977 primarily to set new goals (dates) for achieving attainment of NAAQS since many areas of the country had failed to meet the deadlines. The 1990 amendments to the Clean Air Act in large part were intended to meet issues such as acid rain, ground‑level ozone, stratospheric ozone depletion, and air toxics.

The Act vests the EPA with the authority to control the emissions of pollutants from sources that cause or contribute to air pollution or could endanger human health. Substances identified as air pollutants include ozone, lead, sulfur dioxide, carbon monoxide, nitrogen dioxide, and particulate matter. Offenses include violating performance standards, violating emissions standards, releasing hazardous air pollutants in disregard of emissions standards, making false statements in required documents, and tampering with required monitoring devices. (42 U.S.C. §§ 7413,7414, 7420, and 7524).

CAA Criminal Liability
Section 113(c)(1) imposes criminal liability for the knowing violation of applicable state implementation plans (SIPs), of national emission standards for hazardous air pollutants (NESHAPs), or of other requirements under the CAA. The penalty can be up to $25,000 per day and/or imprisonment of up to one year. The penalty for a repeat conviction is doubled. Section 113(c)(2) imposes criminal liability for knowingly making false statements in a document filed, maintained or used for purposes of compliance with the CAA, or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device required under the act. The maximum penalty is $10,000 and/or six months in prison.

Clean Air Act Civil Penalty Policy
This penalty policy contains two components. First, it applies the agency goal of deterrence through a penalty that removes the economic benefit of noncompliance and reflects the gravity of the violation. Second, it discusses adjustment factors applied.

Clean Water Act
33 U.S.C. §§ 1251 et seq. (1977)

The Clean Water Act is a 1977 amendment to the Federal Water Pollution Control Act of 1972, which set the basic structure for regulating discharges of pollutants to waters of the United States. The law gave EPA the authority to set effluent standards on an industry basis (technology‑based) and continued the requirements to set water quality standards for all contaminants in surface waters. The CWA makes it unlawful for any person to discharge any pollutant from a point source into navigable waters unless a permit (NPDES) is obtained under the Act.

The 1977 amendments focused on toxic pollutants. In 1987, the CWA was reauthorized and again focused on toxic substances, authorized citizen suit provisions, and funded sewage treatment plants (POTW's) under the Construction Grants Program. The CWA provisions for the delegation by EPA of many permitting, administrative, and enforcement aspects of the law to state governments. In states with the authority to implement CWA programs, EPA still retains oversight responsibilities.

Offenses include the unpermitted discharge of any pollutant into a waterway, discharging pollutants into a public waste water treatment facility in violation of pretreatment standards, failing to report the discharge of a reportable quantity of a hazardous substance, making false statements in required documents, and tampering with required monitoring devices. (33 U.S.C. §§ 1319 and 1321).

The CWA applies to both accidental or intentional discharges of oil or hazardous substances (There are currently about 300 such regulated substances. See 40 C.F.R. § 116.4.)[a] in quantities greater than specified, that are not pursuant to a National Pollutant Discharge Elimination System (NPDES) permit, may trigger the requirements of Section 311.

1. Section 311 provides reporting requirements anytime there is a spill or discharge into or upon the navigable waters of the United States.

2. Section 311 places primary responsibility for spill cleanup on the discharging party and allows the government to step in and conduct its own cleanup if the discharger fails to respond.

3. Where the government conducts the cleanup, it may recover cleanup costs from the discharger.

4. A civil penalty may be levied against the discharging party

Section 309(c)(1) imposes criminal liability for the negligent violation of most CWA requirements, of permit conditions, and of pretreatment program requirements, and also on the negligent introduction of any pollutant or hazardous substance into a sewer or POTW.

The primary statutory provision for the water quality regulatory approach is 33 U.S.C. § 1313 (Section 303). Subsections (a) and (b) of Section 303 require in general that each state establish water quality standards (WQSs) applicable to various categories of streams within the state based upon their past, present and intended uses and conditions. These WQSs are to include in their formulation the numerical and narrative (descriptive) water quality criteria (such as “no odor,” “no foam,” etc.), the “beneficial use” standards (describing what the waters are to be used for–body contact, fishing, drinking water, etc.), and the anti-degradation requirements necessary to define and maintain the quality of each category of stream segment. Subsection (c) of Section 303 requires a tri-annual review of those WQSs and establishes procedures for revisions. Subsection (d) of Section 303 requires states to identify water segments not meeting or not expected to meet their assigned WQSs and to establish Total Maximum Daily Loads (TMDLs) for such waters. Subsection (e) of Section 303 requires states to establish a continuing planning process (CPP), which is essentially a plan to coordinate the disparate elements of the CWA to ensure that all waters of the state meet WQSs.

Emergency Planning and Community Right‑to‑Know Act (EPCRA)
42 U.S.C. §§ 11001 et seq. (1986)

Also known as Title III of SARA, EPCRA was enacted by Congress as the national legislation on community safety. This law was designated to help local communities protect public health, safety, and the environment from chemical hazards.

To implement EPCRA, Congress required each state to appoint a State Emergency Response Commission (SERC). The SERC's were required to divide their states into Emergency Planning Districts and to name a Local Emergency Planning Committee (LEPC) for each district. Broad representation by fire fighters, health officials, government and media representatives, community groups, industrial facilities, and emergency managers ensures that all necessary elements of the planning process are represented.

EPCRA is organized into three subtitles. Subtitle A, “Emergency Planning and Notification,” consists of sections 301-305. This subtitle establishes the procedure used to create state and local emergency planning bodies, the development of emergency response plans, and emergency notification requirements in the event of chemical releases. Subtitle B, “Reporting Requirements,” covers sections 311-313, and creates the right-to-know component by establishing reporting requirements for facilities where toxic and hazardous chemicals are found. Subtitle C, “General Provisions,” encompasses sections 321-330 and includes, among other things, trade secret protection, enforcement, and citizen suits.

EPCRA provides the federal government with a system of administrative, civil and criminal penalties for enforcement of the legislation. EPCRA § 325 allows civil and administrative penalties ranging up to $10,000 to $75,000 per violation including daily penalties when facilities fail to comply with reporting requirements. 42 U.S.C. § 11045. Criminal penalties up to $50,000 or five years in prison apply to any person who knowingly and willfully fails to provide an emergency release notification. Id. Penalties of not more than $20,000 and/or up to one year in prison apply to any person who knowingly or willfully discloses any information entitled to protection as a trade secret.

Endangered Species Act
7 U.S.C. § 136; 16 U.S.C. §§ 460 et seq. (1973)

The Endangered Species Act provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The U.S. Fish and Wildlife Service (FWS ) of the Department of the Interior (DOI) maintains the list of 632 endangered species (326 are plants) and 190 threatened species (78 are plants).

Species include birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees. Anyone can petition FWS to include a species on this list. The law prohibits any action, administrative or real, that results in a "taking" of a listed species, or adversely affects habitat. Likewise, import, export, interstate, and foreign commerce of listed species are all prohibited.

EPA's decision to register a pesticide is based in part on the risk of adverse effects on endangered species as well as environmental fate (how a pesticide will affect habitat). Under FIFRA, EPA can issue emergency suspensions of certain pesticides to cancel or restrict their use if an endangered species will be adversely affected. Under a new program, EPA, FWS, and USDA are distributing hundreds of county bulletins that include habitat maps, pesticide use eliminations, and other actions required to protect listed species.

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
7 U.S.C. §§ 136 et seq. (1972)

The primary focus of FIFRA was to provide federal control of pesticide distribution, sale, and use. EPA was given authority under FIFRA not only to study the consequences of pesticide usage but also to require users (farmers, utility companies, and others) to register when purchasing pesticides.

Through later amendments to the law, users also must take exams for certification as applicators of pesticides. All pesticides used in the U.S. must be registered (licensed) by the EPA. Registration assures that pesticides will be properly labeled and that if in accordance with specifications, will not cause unreasonable harm to the environment.

Occupational Safety and Health Act (OSHA)
29 U.S.C. §§ 651 et seq. (1970)

Congress passed the Occupational and Safety Health Act to ensure worker and workplace safety. Their Goal was to make sure employers provide their workers a place of employment free from recognized hazards to safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions.

In order to establish standards for workplace health and safety, the Act also created the National Institute for Occupational Safety and Health (NIOSH,) as the research institution for the Occupational Safety and Health Administration (OSHA, ). OSHA is a division of the U.S. Department of Labor that oversees the administration of the Act and enforces standards in all 50 states.

Oil Pollution Act of 1990
33 U.S.C. §§ 2702 to 2761

The Oil Pollution Act (OPA) of 1990 streamlined and strengthened EPA ability to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. The OPA requires oil storage facilities and vessels to submit to the Federal government plans detailing how they will respond to large discharges. EPA has published regulations for aboveground storage facilities; the Coast Guard has done so for oil tankers. The OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale.

Resource Conservation and Recovery Act (RCRA)
42 U.S.C. §§ 6901 et seq. (1976)

RCRA (the acronym is pronounced "rick‑rah") gave EPA the authority to control hazardous waste from the "cradle‑to‑grave." This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non‑hazardous wastes.

The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances. RCRA focuses only on active and future facilities and does not address abandoned or historical sites (see CERCLA).

The Federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to RCRA that required phasing out land disposal of hazardous waste. Some of the other mandates of this strict law include increased enforcement authority for EPA, more stringent hazardous waste management standards, and a comprehensive underground storage tank program.

Offenses include knowingly transporting hazardous waste to an unpermitted facility; transporting hazardous waste without the required manifest; treating, storing or disposing of hazardous waste without a permit or in violation of a permit; making false statements in required documents; exporting hazardous waste to another country without its consent or in violation of an international agreement. (42 U.S.C. § 6928).

Remedies which may be sought by the government include:

a. restitution of government’s expenses.

b. injunctive relief to abate dangerous activities.

c. implementation of remedial program.

d. contempt for failure to comply.

RCRA Criminal Liability:

Section 3008(d)(1) imposes criminal liability for the knowing transportation of hazardous waste to an unpermitted facility.

Section 3008(d)(2) imposes criminal liability for the knowing treatment, storage or disposal of hazardous waste without a RCRA permit or in knowing violation of the material conditions of a permit.

Section 3008(d)(3) imposes criminal liability for knowingly making a false material statement in a document filed, maintained or used for purposes of compliance with RCRA.

Section 3008(d)(4) imposes criminal liability for the knowing destruction, alteration or concealment of records required to be maintained under RCRA.

Section 3008(d)(5) imposes criminal liability for knowingly transporting or causing to be transported any hazardous waste without a requisite manifest.

Section 3008(d)(6) imposes criminal liability for knowingly exporting hazardous waste either (a) without the consent of the receiving country, or (b) in violation of the conditions of any agreement between the receiving country and the United States.

The criminal penalty for violation of any of the § 3008(d) provisions is up to two years imprisonment (five years for § 3008(d)(1) or (3)) and/or up to $50,000 for each day of violation. The penalty for a repeat conviction is doubled, both as to length of incarceration and amount of fine.

Section 3008(e) creates criminal liability for one who knowingly endangers another person through the treatment, storage, disposal or transportation of hazardous waste. The penalty can be up to 15 years imprisonment and/or up to $250,000, or up to $1,000,000 for an organization.

Safe Drinking Water Act
42 U.S.C. §§ 300f et seq. (1974)

The Safe Drinking Water Act was established to protect the quality of drinking water in the U.S. This law focuses on all waters actually or potentially designed for drinking use, whether from above ground or underground sources.

The Act authorized EPA to establish safe standards of purity and required all owners or operators of public water systems to comply with primary (health‑related) standards. State governments, which assume this power from EPA, also encourage attainment of secondary standards (nuisance‑related).

Superfund Amendments and Reauthorization Act (SARA) and, Superfund Program (CERCLA)
42 U.S.C. §§ 103 et seq.

The Superfund Amendments and Reauthorization Act (SARA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on October 17, 1986. SARA reflected EPA's experience in administering the complex Superfund program during its first six years and made several important changes and additions to the program. SARA: stressed the importance of permanent remedies and innovative treatment technologies in cleaning up hazardous waste sites; required Superfund actions to consider the standards and requirements found in other State and Federal environmental laws and regulations; provided new enforcement authorities and settlement tools; increased State involvement in every phase of the Superfund program; increased the focus on human health problems posed by hazardous waste sites; encouraged greater citizen participation in making decisions on how sites should be cleaned up; and increased the size of the trust fund to $8.5 billion.

SARA also required EPA to revise the Hazard Ranking System (HRS) to ensure that it accurately assessed the relative degree of risk to human health and the environment posed by uncontrolled hazardous waste sites that may be placed on the National Priorities List (NPL).

Offenses include failing to notify of the release of a reportable quantity of a hazardous substance, destroying or making false statements on required documents. (42 U.S.C. § 9603).

Toxic Substances Control Act
15 U.S.C. §§ 2601 et seq. (1976)

The Toxic Substances Control Act (TSCA) of 1976 was enacted by Congress to give EPA the ability to track the 75,000 industrial chemicals currently produced or imported into the United States. EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human‑health hazard. EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk.

Also, EPA has mechanisms in place to track the thousands of new chemicals that industry develops each year with either unknown or dangerous characteristics. EPA then can control these chemicals as necessary to protect human health and the environment. TSCA supplements other Federal statutes, including the Clean Air Act and the Toxic Release Inventory under EPCRA.

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