Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency
Congressional research reportDec 20, 2013
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Environmental Laws: Summaries
of Major Statutes Administered by
the Environmental Protection Agency
(name redacted), Coordinator
Specialist in Environmental Policy
(name redacted)
Specialist in Resources and Environmental Policy
(name redacted)
Analyst in Environmental Policy
(name redacted)
Specialist in Environmental Policy
(name redacted)
Specialist in Environmental Policy
(name redacted)
Specialist in Environmental Policy
(name redacted)
Analyst in Environmental Policy
December 20, 2013
Congressional Research Service
7-....
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
Congressional Research Service
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 (name r
edacted) and (name redacted).)
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 (name redacted)
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 (name redacted) and (name redacted), 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
P.L. 97-23
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
P.L. 104-6, P.L. 104-59, P.L. 104-70, P.L.
104-260
1998
Amended Section 604 re methyl bromide
P.L. 105-277, Section 764
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. 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
Marginal
Moderate
Serious
Severe
Extreme
Deadline
1993
1996
1999
2005-2007a
2010
Areasb
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
Design
Value
>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
Marginal
Moderate
Serious
Severe
Extreme
Deadline
2015
2018
2021
2027-2029a
2032
Areasb
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
Design
Value
>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
Sec. 175A
7506
Limitations on certain federal assistance
Sec. 176
7506a
Interstate transport commissions
Sec. 176A
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
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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Clean Air Act, as
Amended
42 U.S.C.
Section Title
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]
Chemical Process Safety Management
[29 U.S.C. 1662e]
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 (name redacted).
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 (name redacted), 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. 102-580, §§504-510
P.L. 99-272, §§6061-6065
P.L. 99-662, §§211, 728, 1172
P.L. 100-4, §508
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 (name redacted), 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
Sec. 102A
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
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 (name redacted), 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
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