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Federal environmental law update.

With the election of a new administration whose platform was heavily environmental, "green" issues have once again been thrust into the national spotlight.

During the past year, Congress considered a significant number of legislative proposals as it attempted to reauthorize the major environmental acts currently on the books. However, no measurable progress was made in any of these areas, and developments over the past year were limited to regulatory activities by the United States Environmental Protection Agency. Here is a summary of the developments of interest to business and industry over the past year, and a brief look at what may lie ahead within the next several months.


Significant regulatory activity in this area can be expected from the EPA by the last quarter of this year. Under the 1990 CAA Amendments, the agency is required to adopt more than 60 major rules by November 1993. Of primary concern to small- and medium-sized businesses will be efforts to control hazardous air pollutants, implement a comprehensive permit program and phase out substances contributing to depletion of the ozone layer.

Hazardous Air Pollution Control--Among the rules the EPA is required to adopt in 1993 are measures to prevent and detect releases of hazardous air pollutants, and to provide for proper responses when releases occur. These rules will require businesses with potential problems to implement risk-management plans. These plans will need to include programs to prevent releases, as well as steps for responding if a release does occur.

Also, emission standards have been proposed for the synthetic organic chemical manufacturing industry and for commercial dry cleaners. A business may receive a six-year extension from an emission standard if it can reduce emissions by 90 percent from 1987 base-year levels before the standard is proposed.

Comprehensive Permit Program--The November 1993 deadline for states to establish permit programs implementing minimum EPA air pollution control requirements may pass with many states not yet in compliance because of disagreements over the proposed standards. The EPA regulations are the subject of a number of court challenges, and the organization of state air pollution control agencies has issued its own blueprint for state programs, which is more stringent than the federal minimum requirements.

Once implemented, tens of thousands of businesses will be required to complete comprehensive applications requiring an extremely detailed description of the plant processes, emissions, etc. The permit issued will contain every federal, state and local requirement applicable to the business. It will require monitoring of emissions and annual certification by the operator that the facility has been operated in compliance with all permit requirements.

Phaseout of Ozone-Depleting Substances--The phaseout of ozone-depleting substances has been greatly accelerated under the Copenhagen Revision to the Montreal Protocol. According to rules proposed by the EPA to meet the accelerated schedule, production of chlorofluorocarbons (CFCs), carbon tetrachloride and methyl chloroform will be halted in 1996, production of halons in 1994, and production of hydrochlorofluorocarbons (HCFCs) will be phased out by 2030. In addition, hydrobromofluorocarbons (HBFCs) and methyl bromide have been added to the list of substances to be phased out.

As of May 15, 1993, any container or product containing or manufactured with an ozone-depleting substance must be labeled with a warning informing the customer of that fact.

Businesses that service, repair or dispose of consumer, commercial and industrial air conditioning must also be aware of their vulnerability under new EPA rules. Last year it became unlawful for anyone to vent or release ozone-depleting substances while servicing, repairing or disposing of such equipment. Servicing or repair of automobile air conditioners and refrigeration units also falls under EPA regulations.


The EPA addressed two major areas over the past year: wetlands and the so-called Great Lakes initiative.

Early in 1993, the EPA ended a heated two-year debate by deciding in favor of a liberal definition of what constitutes covered wetlands. Environmentalists estimated that up to half of the nation's remaining wetlands would have been jeopardized by the more stringent definition favored by the Bush administration.

In April, the EPA culminated years of study and development by proposing water quality guidance for the Great Lakes system. The 270-page document addresses the Great Lakes as an integrated system for the first time, and focuses on the discharge of toxic water pollutants into the Great Lakes.

For municipal discharges of toxic water pollutants, annualized costs are expected to be in the range of $200 million to $350 million depending on which mix of controls the EPA eventually chooses.


One of the most notable EPA administrative actions during the past year was the reinstatement of strict rules dealing with mixtures or residues involving hazardous wastes. In general, the rules state that when a hazardous waste is mixed with a nonhazardous waste, the entire resulting mixture is hazardous. Also, the residue derived from the treatment of a hazardous waste is a hazardous waste.

Also, certain members of Congress, particularly Sen. Dan Coats (R-Ind.), have been attempting for two years to amend RCRA to permit states to ban or limit out-of-state solid waste shipments. In February, legislation was again proposed in the House and the Senate.

These bills would allow all 50 states to regulate out-of-state trash, while protecting current contractual relationships. Previous versions have limited this authority to local units of government. The House version would also allow the states to charge a $3 per ton import fee.


Limiting the liability of municipalities under the Comprehensive Environmental Response, Compensation and Liability Act remains the major focus of congressional activity. Legislation pending in Congress would cap the liability of municipalities at 4 percent of total cleanup costs. It would also prohibit private parties from bringing third-party actions against municipalities that generated or transported municipal waste or sewage sludge. Municipalities would still have unlimited liability for transportation of industrial wastes and for sites owned or operated by the municipality.


Elevation of the EPA to Cabinet status is also before Congress. A number of bills have been introduced to accomplish this, but all have met with some resistance. An administration proposal would abolish the Council on Environmental Quality and transfer its functions to the EPA.

Opponents say this would weaken the CEQ's major program requirement, the review of environmental impact statements under the National Environmental Policy Act of 1969. Recent legislation has tied elevation of the EPA to provisions requiring more vigorous regulatory and remedial programs in minority and poor communities. The only certain thing at this time is that a clean bill dealing only with the elevation of the EPA to Cabinet status has no chance of passing.
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Author:McHugh, Laurence A.; Doyle, Jean L.
Publication:Indiana Business Magazine
Date:Jul 1, 1993
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