# Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30798 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** December 20, 2013 - **Citation:** RL30798 ## Text 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 Congressional Research Service 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 Congressional Research Service 1 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. Congressional Research Service 2 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. Congressional Research Service 3 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. Congressional Research Service 4 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. Congressional Research Service 5 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. Congressional Research Service 6 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 7 Environmental Laws: Summaries of Major Statutes Administered by EPA • 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. Congressional Research Service 8 Environmental Laws: Summaries of Major Statutes Administered by EPA • 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 Congressional Research Service 9 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 10 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 11 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 12 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 13 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 14 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 15 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 16 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 17 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 18 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 19 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 20 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 21 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 Congressional Research Service 22 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 23 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 24 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. Congressional Research Service 25 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 26 Environmental Laws: Summaries of Major Statutes Administered by EPA 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. Congressional Research Service 27 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 28 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 Congressional Research Service 29 Environmental Laws: Summaries of Major Statutes Administered by EPA 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 crimina [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30798. Public record. Not legal advice.