A continuation of the history of environmental laws in the U.S.
The newly formed
environmental movement resulted in three federal laws designed to regulate
various aspects of the environment being passed by Congress in the 1960s. In
December 1963, the Clear Air Act
was passed. A predecessor to the Clean Air Act, it allocated $95 million for
the study and cleanup of air and water pollution. The act gave the federal
government authority to reduce interstate air pollution, regulate emission
standards for stationary pollution sources, and invest in technologies that
would remove sulfur from coal and oil.
On October 2,
1965, the Water Quality Act
passed, enhancing Federal control over water quality initially set by the
Federal Water Pollution Control Act of 1948. Those federal standards would
become the baseline for statewide water quality levels.
On October 15,
1966, the first legislation intended to protect endangered species, the Endangered Species Preservation Act,
became law.To supplement it, the Endangered Species Conservation Act of
authorized the Secretary of the Interior to list endangered domestic fish and
wildlife and allotted $15 million a year for the protection of such species.
The first list of Endangered Species – released in 1967 – included the United
States’ national symbol, the American Bald Eagle.
On January 28,
1969, an oil well off the coast of Santa Barbara, California, spilled over
200,000 gallons of oil into the Pacific Ocean causing extreme pollution to
parts of the California coastline. It took 11 days to get the leaking oil
stopped. That was the first of a series of incidents where oil has polluted
coastlines, and in hindsight we recognize it was a relatively small event, but
at the time it caused considerable outrage throughout the country.
occurred in 1969 which caused Americans to consider the condition of our
national waterways. The Cuyahoga River in Cleveland, Ohio, burst into flames
when oil and chemicals floating on the surface were ignited, causing flames to
soar over five stories high. A river catching fire was an inconceivable event
before then and was a major factor in causing people to wonder what was being
discharged into our rivers and streams.
We often hear
how the 1960s was a time of cultural revolution in the United States. Part of
that revolution was a concern for the environment. It’s safe to say that from
1962, when Silent Spring was
released, until 1970, Americans became both aware of and concerned about their
As a result, the
1970s were the decade when Congress got serious about environmental
1970 was a
watershed year for environmental laws. On January 1, 1970, the National Environmental Policy Act ("NEPA")
took effect. NEPA is not a long or detailed statute. In short, it requires a
federal agency to give consideration to the impact any federal project might
have on the environment before taking action. It doesn’t prohibit the activity,
even if the agency determines that the proposed activity would have a harmful
effect on the environment.
The most visible
effect of NEPA is the use of Environmental Impact Statements and Environmental
Assessments before beginning a federal project. EIAs run to more than 1,000
pages and take substantial time and investigation to prepare.
There has been a
lot of litigation over the ensuing years resulting from allegations that a
government agency did not give proper consideration to a project’s impact on
the environment before beginning construction of the project. Those kinds of
law suits rarely accomplish anything more than to delay the project. Even if
the federal agency is found to have not fulfilled its obligations under NEPA,
all the agency has to do is correct its errors and it can then go ahead with
NEPA has an
impact on the private sector, as well, because any federal funding or federal
permitting of a private project requires the NEPA due diligence process to be
1970 saw the
celebration of the first Earth Day. That first Earth Day was basically a
protest against environmental ignorance. An estimated 20 million people
participated in the demonstrations.
In 1970 Congress
passed the Occupational and Safety
better known as OSHA. The goal was to make sure employers provided their
workers a place of employment free from recognized hazards to safety and
health, such as exposure to toxic chemicals, excessive noise levels, mechanical
dangers, extreme levels of heat or cold, or other unsanitary conditions.
To establish the
standards to be applied under OSHA, the Act also created the National Institute
for Occupational Safety and Health as the research institution for the
Occupational Safety and Health Administration, a division of the Department of
law has progressed over the years, an interesting tension has developed between
OSHA and the EPA. One area EPA has a strong interest in regulating is vapor
intrusion into buildings. EPA and OSHA have very different standards for indoor
air contamination, EPA’s being much more stringent, and EPA has been trying to
wrest control of that area of regulation from OSHA for several years, without
During the Nixon
administration, the United States Environmental Protection Agency was
established. That also occurred in 1970. EPA is responsible for environmental
policy and enforcement in the United States and conducts research and sponsors
many environmental programs throughout the country. It is the agency that
establishes the standards on which the enforcement of most of the environmental
laws in the country is based.
Also in 1970,
Congress adopted the Clean Air Act.
It is the primary law that regulates air emissions from both stationary and
mobile sources. It authorizes EPA to establish National Ambient Air Quality
Standards to protect public health and to regulate the emissions of hazardous
pollutants. Once EPA had established the standards, it was up to each
individual state to develop its own implementation plan to regulate the
industrial sources in that state.
interesting to note that the Senate was unanimous in its approval of the Clean
Air Act and only one member of the House of Representatives voted against the
Like most of the
environmental legislation that was enacted in the 70s, the Clean Air Act later
underwent major revisions. In 1990, in order to achieve the maximum degree of
reduction in emission of hazardous air pollutants from major sources, EPA
adopted emission standards commonly referred to as "maximum achievable
control technology" or "MACT" standards.
In 1972, FIFRA was amended to shift
responsibility for its enforcement to the Environmental Protection Agency. The
1972 law completely replaced the original 1947 law, and is the basis of current
arose out of broader Congressional concerns about long- and short-term toxic
effects of pesticide exposure on people who applied pesticides (applicators),
wildlife, non-target insects and birds, and on food consumers. Substantial
changes were made in 1988 to
accelerate the reregistration process, and again in 1996.
provides for federal regulation of pesticide distribution, sale, and use. All
pesticides distributed or sold in the United States must be registered
(licensed) by EPA. Before EPA may register a pesticide under FIFRA, the
applicant must show, among other things, that using the pesticide according to
specifications "will not generally cause unreasonable adverse effects on
One of the most
comprehensive environmental laws was adopted in 1972, the Clean Water Act
("CWA"). It was a major reorganization of the Federal Water Pollution
Control Act that had been adopted in 1948.
regulates discharges of materials into "Waters of the United States."
The definition of Waters of the United States has been a major topic of
contention between EPA, the U.S. Army Corps of Engineers and private property
owners and has resulted in much litigation over the years.
regulated by the CWA do not have to be hazardous materials. Unlike many of the
environmental laws, the CWA isn’t necessarily directed at hazardous substances,
although those are regulated, but applies to things like soil run-off from
construction sites and dredging and filling wetlands.
While the CWA is
the subject of much controversy, it has been effective. There can be no
question that the rivers, lakes and streams in the United States are much
cleaner today than they were in the 1950s and 1960s.
particularly oil, became a major topic of concern in 1973 with the imposition
of the Organization of Petroleum Exporting Countries ("OPEC") Oil
Embargo. Those who were driving at that time likely remember the long lines at
gas stations to fill up one’s gas tank. In order to drive up the price of oil,
the members of OPEC reduced the amount of oil they were producing and selling
to the rest of the world and the impact on the United States was dramatic as
not only the price of oil soared, but the cost of other goods went up as well
as a result of the goods either using oil in their production process or simply
because transportation costs became much greater.
controversial environmental law was adopted in 1973, the Endangered Species Act.
The intent of
the Endangered Species Act was to protect certain well-known animals that were
on the verge of extinction, at least in part because of manmade activities.
America’s symbol, the bald eagle, was one of those species, as were other big,
familiar animals like the grizzly bear.
However, the Act
was soon to be a major thorn in the side of property owners and developers as
environmental activists sought to have not only those big, impressive animals
protected, but also sought to have insects and plants that some considered
nothing more than pests or weeds protected as well.
Species Act sets out a process for EPA to determine if a species of plant or
animal is threatened or endangered. Once a species is listed as endangered,
there are severe penalties for killing a member of that species, without first
obtaining a "take permit." It also regulates the destruction of
habitat for endangered animals.
activists have found the Endangered Species Act to be a great source for
delaying development and have used it to stop projects on numerous occasions.
Since 1973, over
2,100 species have been listed as either endangered or threatened. Only 56
species have come off the list; 28 came off because the populations
sufficiently recovered, 10 came off because they became extinct, and the rest
for a variety of other reason such as errors in the original listing.
The Safe Drinking Water Act
was established in 1974 to protect the quality of drinking water in the U.S. That
law focuses on all waters actually or potentially designed for drinking use,
whether from above ground or underground sources. The Act authorizes EPA to
establish minimum standards to protect tap water and requires all owners or
operators of public water systems to comply with these primarily health-related
standards. Major amendments to the Act were
adopted in 1996, primarily to require EPA to consider a detailed risk and cost
assessment, and best available peer-reviewed science, when developing
In 1976 Congress
adopted a very comprehensive law designed to establish a cradle-to-grave regulatory
scheme for managing hazardous wastes, called the Resource Conservation and Recovery Act,
today better known as RCRA. RCRA amended the Solid Waste Disposal Act, and
addresses solid waste that is not considered hazardous under Subtitle D, and
hazardous wastes under Subtitle C. The Hazardous and Solid Waste Amendments ("HSWA")
of 1984 strengthened RCRA’s waste management provisions and added Subtitle I,
which governs underground storage tanks (USTs).
promulgated pursuant to Subtitle C of RCRA
establish a "cradle-to-grave" system governing hazardous waste from
the point of generation to disposal. RCRA hazardous wastes include the specific
materials listed in the regulations (commercial chemical products, designated
with the code "P" or "U"; hazardous wastes from specific
industries/sources, designated with the code "K"; hazardous wastes
from nonspecific sources, designated with the code "F") and materials
which exhibit a hazardous waste characteristic (ignitability, corrosivity, reactivity,
or toxicity, designated with the code "D").
entities that generate hazardous waste are subject to waste accumulation,
manifesting, and record keeping standards. Facilities that treat, store, or
dispose of hazardous waste must obtain a permit, either from EPA or from a
state agency that EPA has authorized to implement the permitting program.
Subtitle C permits contain general facility standards such as contingency
plans, emergency procedures, record keeping and reporting requirements, financial
assurance mechanisms, and unit-specific standards.
contains provisions for conducting corrective actions that govern the cleanup
of releases of hazardous waste or constituents from solid waste management
units at RCRA-regulated facilities.
Although RCRA is
a federal statute, many states implement the RCRA program. Currently, EPA has
delegated its authority to implement various provisions of RCRA to 46 of the 50
requirements are not industry-specific but apply to any company that generates,
transports, treats, stores, or disposes of hazardous waste.
The Toxic Substances Control Act
("TSCA") of 1976 provides EPA with authority to require reporting,
record-keeping and testing requirements, and restrictions relating to chemical
substances and/or mixtures. Certain substances are generally excluded from
TSCA, including, among others, food, drugs, cosmetics and pesticides.
the production, importation, use, and disposal of specific chemicals including
polychlorinated biphenyls ("PCBs"), asbestos, radon and lead-based
of TSCA provide authority to:
Section 5, pre-manufacture notification for "new chemical substances"
Section 4, testing of chemicals by manufacturers, importers, and processors
where risks or exposures of concern are found.
New Use Rules ("SNURs"), under Section 5, when it identifies a "significant
new use" that could result in exposures to, or releases of, a substance of
•Maintain the TSCA
Inventory, under Section 8, which contains more than 83,000 chemicals. As new
chemicals are commercially manufactured or imported, they are placed on the
importing or exporting chemicals, under Sections 12(b) and 13, to comply with
certification reporting and/or other requirements.
Section 8, reporting and record keeping by persons who manufacture, import,
process, and/or distribute chemical substances in commerce.
Section 8(e), that any person who manufactures (including imports), processes,
or distributes in commerce a chemical substance or mixture and who obtains
information which reasonably supports the conclusion that such substance or
mixture presents a substantial risk of injury to health or the environment to
immediately inform EPA, except where EPA has been adequately informed of such
information.EPA screens all TSCA b§8(e)
submissions as well as voluntary "For Your Information" ("FYI")
submissions. The latter are not required by law, but are submitted by industry
and public interest groups for a variety of reasons.