Control of Hazardous Air Pollution

AuthorArnold W. Reitze, Jr.
Page 145
Chapter 5:
Control of Hazardous Air Pollution
§1. Introduction
§1(a). The Hazardous Air Pollution Problem
In 1984, Union Carbide’s accidental release of
methyl isocyanate in Bhopal, India, killed thou-
sands of people and focused the world’s attention
on airborne hazardous pollutants.1 A subsequent
chemical release from a West Virginia facility drew
attention to the problem in the United States. e
U.S. Congress responded in 1986 by enacting Title
III of the Superfund Amendments and Reauthor-
ization Act (SARA) that created the free-sta nding
Emergency Planning and Community Right-To-
Know Act (EPCRA).2 Section 313 of this Act
mandates designated industries to report to the
U.S. Environmental Protection A gency (EPA) the
amount of toxic substan ces released to t he envi-
ronment each year if a facility uses 10,000 pounds
(lbs.) of a toxic chemica l in a year or ma nufac-
tures or processes 25,000 lbs. of a toxic chemica l
per year. is toxic release inventory (TRI) covers
releases of more than 320 chemicals included in
the Committee Print No. 99-169 of the U.S. Sen-
ate Committee on Environ ment and Public Works.
e statute a lso provides for EPA’s Administrator
to add chemicals to the list, and any person may
petition the Administrator to add or delete chemi-
cals.3 In 1995, EPA added 286 new chemicals a nd
chemical categories to its list in EPCR A §313.
Today nearly 650 chemicals and chemical cat-
egories are subject to TRI reporting requirements.
e list of chemicals is found at 40 C.F.R. §372.65.
Industries with standard industrial classication
1. G C. B, B S, G P: T C A
A  1990, at 62 (1993).
2. 42 U.S.C. §§11001-11050, EPCRA §§301-330.
3. See generally Fertilizer Inst. v. Browner, 163 F.3d 774, 29 ELR
20349 (3d Cir. 1998).
(SIC) codes of 20 to 39 that have 10 or more full-
time employees and handle regulated chemicals
above threshold amounts have to meet the annual
TRI repor ting re quirements. e list of industries
subject to TRI reporting requirements was expanded
by the Pollution Prevention Act.4 Today the list of
facilities is found at 40 C.F.R. §§372.22 & .23.
Changes to the TR I reporting requirements
since 1986 make comparisons of data produced
for dierent years dicult. Nevertheless, the data
indicates on-site and o-site releases from ma nu-
facturing facilities decrea sed after EPCRA’s enact-
ment; however, there is little consistency in the
methodology used a nd the conclusions submitted
by the regulated community and there is little con-
gressional oversight.
In 2006, 23,461 industrial and federal facili-
ties led TR I forms required by EPCR A’s §313(a).
On-site and o-site releases and disposal of TRI-
covered materials totaled almost 4.25 billion lbs.
Persistent bioaccumulative toxics (PBT) chemicals
accounted for 455 million lbs. or 11% of the on-site
and o-site releases in 2006. About 24% of this
came from the electrical utility segment, and 29%
came from the metal mining industries. ose
ling TRI forms represent only a portion of the
nationwide toxic releases because not all industries
are subject to reporting requirements, and some
sources do not meet TR I reporting thresholds.
Moreover, EPA does not require monitoring; there-
fore, sources estimate their emissions, wh ich may
lead to under reporting. On-site disposal or releases
accounted for almost 88% of the total releases in
2006, of which, 1.408 billion lbs., or 33.1%, was
released into the air.5 TRI reporting requirements
4. Pub. L. No. 101-508, 104 Stat. 1388-321 (Nov. 5, 1990).
5. U.S. EPA, T R I R Y 2006
P D R (2008) [hereinafter TRI]. See generally
Page 146 Air Pollution Control and Climate Change Mitigation Law
were wea kened at the end of 2006 by a ru le that
raises the threshold for reporting using the detailed
Form R. e reporting threshold for chemical
releases went from 500 lbs. to 2,000 lbs. Sources
below the threshold may use Form A, which does
not require quantitative information. is change
ends Form R reporting for about 3,500 facilities.6
In spring 2009, a coalition of 12 states led suit
in the U.S. District Court for District of South-
ern New York to force EPA to reinstate its prior
§1(b). Human Health Impacts of Hazardous
Air Pollutants
Stationary and mobile sources emit ma ny air pol-
lutants to which large populations are exposed.
Some air pollutants have toxic and/or carcinogenic
eects following direct inhalation exposure, e.g.,
carbon monoxide (COx) and benzene. Others, such
as lead and arsenic, reach humans by a variety of
pathways, including direct inhalation, inhalation
of re-suspended dust, ingestion of contaminated
food products, ingestion of contaminated water,
and skin contact with contaminated soil, water, or
dust. Industrial and a gricultural workers often are
exposed to many toxic substances in the air in con-
centrations above those to which the general popu-
lation is exposed. Such exposures can cause cancer
or a wide range of non-cancer health eect s.8
Indoor exposure to toxic agents in consumer
products—e.g., solvents, pesticides, formalde-
hyde—also can cause cancer and a range of non-
cancer health eects. Building occupants may be
exposed to radon and its decay products as well
as many airborne combustion products, includ-
ing nitrogen dioxide and environmental tobacco
smoke. Due to the large population directly
exposed to a number of agents, some of which are
highly toxic, these releases lead to relatively high
human health risks.9
e known harm caused by hazardous air pol-
lutants (HAPs) inclu des an es timated 1 to 25
William F. Pedersen, Regulation and Information Disclosure:
Parallel Universes and Beyond,  H. L. R.  ().
6. 71 Fed. Reg. 76932 (Dec. 22, 2006).
7. Douglas P. Guarino, Court’s Delay Opens Door to Obama Reversing
Controversial TRI Rule, 20 C A R. (Inside EPA) 8 (Jan.
8, 2009).
8. U.S. EPA, T T O   A 5 (1998) (EPA
9. See generally Arnold W. Reitze Jr. & Sheryl-Lynn Carof, e
Legal Control of Indoor Air Pollution, 25 B.C. E. A. L.
R. 247 (1998).
people per million contracting cancer in their life-
time as well as birt h defects, lung disease, nervous
system disorders, immune system disorders, endo-
crine system disorders, neurological problems, liver
damage, a nd other health problems.10 Very little is
known about health problems caused by a ir pol-
lutants, other than cancer, because most chemical
testing only has been for carcinogenic properties.
In 1995, EPA announced it had “fair or better”
data available only on 20 HAPs. e U.S. Govern-
ment Accountability Oce (GAO; formerly the
U.S. General Accounting Oce) reported in July
2005 that only about 15% of the chemical com-
pounds introduced in the past 30 years have health
data provided to EPA by the chemical companies.11
e Energy Policy Act of 2005 requires the U.S.
Department of Energy (DOE) to report to Con-
gress in 2006 on the “direct and signica nt health
impacts” on those living near petroleum rener-
ies and petrochemical facilities.12 W hile DOE
has little experience or policies in studying health
risks, EPA’s approach to health risk is controversial
because the Agency ha s resisted using the one-in-
one-million increased cancer risk that hea lth advo-
cates seek to be used to determine whether a risk
is signicant.13 Whether EPA’s approach to risk
analysis makes sense is increasing ly challenged as
new research in the biological sciences calls into
question the regulatory approach based on the con-
cept of threshold limits for harmf ul eects of toxic
chemicals.14 However, EPA reports the increased
risk of contracting cancer from inhalation of air
toxics from outdoor sources is less than 1%.15
§1(c). Ecosystem Impacts of Hazardous Air
Industrial sources in the United States subject to
TRI reporting requirements emitted more than
1.44 billion lbs. of toxic air emissions into the atmo-
10. U.S. EPA, N S A T A  
: E E, C,  R,
T F S (2008), available at
ttn/atw/nata1999/natanalfact.html [hereinafter A T
11. GAO Urges Stronger Law on Toxic Substances, W. P, July
14, 2005, at A10.
12. Pub. L. No. 109-58, §1404, 119 Stat. 594 (2005). See DOE Role
in Energy Law Air Toxics Study Draws Widespread Skepticism, 22
E. P’ A (Inside EPA) 18 (Aug. 17, 2005).
13. See infra §3(i).
14. See, e.g., Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling
the Risk Injury Divide,  S. L. R.  ().
15. A T A, supra note 10.

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