Control of Hazardous Air Pollution

• Author: Arnold W. Reitze, Jr.
• Pages: 145-170

Page 145

Chapter 5:

Controlof HazardousAirPollution

§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-standing

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 Agency (EPA) the

amount of toxic substan ces released to the envi-

ronment each year if a facility uses 10,000 pounds

(lbs.) of a toxic chemical in a year or manufac-

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 also provides for EPA’s Administrator

to add chemicals to the list, and any person may

petition the Administrator to add or delete chemi-

cals.3In 1995, EPA added 286 new chemicals and

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 PollutionPrevention Act.4 Today the list of

facilities is found at 40 C.F.R. §§372.22 & .23.

Changes to the TRI 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 manu-

facturing facilities decreased after EPCRA’s enact-

ment; however, there is little consistency in the

methodology used and the conclusions submitted

by the regulated community and there is little con-

gressional oversight.

In 2006, 23,461 industrial and federal facili-

ties led TRI 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 TRI reporting thresholds.

Moreover, EPA does not require monitoring; there-

fore, sources estimate their emissions, which 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 weakened at the end of 2006 by a rule 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

regulations.7

§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 agricultural 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ects.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

451/K-98-001).

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 birth defects, lung disease, nervous

system disorders, immune system disorders, endo-

crine system disorders, neurological problems, liver

damage, and other health problems.10 Very little is

known about health problems caused by air 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cant 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 has resisted using the one-in-

one-million increased cancer risk that health 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 increasingly challenged as

new research in the biological sciences calls into

question the regulatory approach based on the con-

cept of threshold limits for harmful 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

Pollutants

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 athttp:www.epa.gov/

ttn/atw/nata1999/natanalfact.html [hereinafter A T

A].

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.