Control of Hazardous Air Pollution
| Author | Arnold W. Reitze, Jr. |
| Pages | 145-170 |
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 classication
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.
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 dierent years dicult. 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
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
eects 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 eect 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 eects. 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 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 Oce (GAO; formerly the
U.S. General Accounting Oce) 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 signica nt health
impacts” on those living near petroleum rener-
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 signicant.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 eects 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 at http:www.epa.gov/
ttn/atw/nata1999/natanalfact.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.
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