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Volume 24, Issue 1 — January 1994


Allowable Emissions and Unallowable Discretion: EPA Acid Rain Regulations Violate Congressional Intent of the 1990 Clean Air Act Amendments

by William G. Schiffbauer and Molly A. Sellman

Editors' Summary: In 1993, EPA issued its final rules for sulfur dioxide allowance allocations under the acid rain provisions added to the Clean Air Act by the Clean Air Act Amendments of 1990 (1990 Amendments). As part of these rules, EPA interpreted the term "allowable 1985 emissions rate" in CAA § 402(18) to mean that all sulfur dioxide emissions from utility plants must be expressed on an annualized basis. EPA incorporated this interpretation into a regulation known as the "emissions limitation annualization factor."

The authors contend that EPA exceeded its statutory authority in so interpreting the Act. They argue that the statute directs EPA to calculate an "annual equivalent" limitation for sulfur dioxide emissions in pounds per million British thermal units (Btus) only for utility plants whose emission limitations are not expressed in pounds per million Btus and for utility plants whose averaging periods for emission limitations are not expressed in pounds per million Btus and are not expressed on an annual basis. This statutory directive does not apply to utilities whose limitations are already expressed in pounds per million Btus. By interpreting the Act to allow it to recalculate the emissions limitations of these utilities, EPA could significantly reduce a utility plant's allowances for sulfur dioxide emissions.

Applying the standards for reviewing agency interpretations of statutory language, set forth by the U.S. Supreme Court in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507 (1984), the authors first examine the language of the Act. They conclude that the plain language of the statute does not support EPA's interpretation. They next examine the legislative history of the 1990 Amendments, and conclude that no evidence exists that Congress intended EPA to annualize the emissions limitations of all utility plants. Finally, they suggest that EPA's annualization method was originally created to determine compliance with emissions standards that applied before enactment of the 1990 Amendments and that the application of this method to all utility emission rates is contrary to the emission allowance scheme created by the 1990 Amendments.

How to Handle Difficult Chemicals: The Unused Tool in EPA's Chemical Toolbox—Section 7 of the Toxic Substances Control Act

by Michael J. Walker and Jamie C. Eisenfeld

Editors' Summary: After TSCA was enacted in 1976, some commentators described it as the most powerful of all the environmental laws. Congress intended it to provide for the comprehensive and direct control of commercial chemicals' potential health or environmental effects in a true cradle-to-grave tracking system. Indeed, it was the single law addressing toxic substances that could cover all areas of environmental regulation, supplementing sections of existing toxic substances laws. In the 17 years since its enactment, however, TSCA has not fulfilled these goals or expectations. Despite the insightful and potentially far-reaching authority that TSCA places at EPA's disposal, the Agency has not used that authority to move aggressively to curtail the use, distribution, and disposal of toxic threats. One section of TSCA that EPA has significantly underused is TSCA §7, the imminent hazard provision.

This Article addresses the inadequate implementation of §7. The author briefly reviews TSCA's overall statutory enforcement scheme, noting impediments to the implementation and application of §7. Next, in analyzing considerations critical to decisions to file §7 actions, the author provides an overview of the few decisions and administrative actions involving §7 and suggests how EPA can perhaps better use §7. The author also suggests how EPA can better decide when a §7 action is more appropriate and suitable than other TSCA enforcement activity. The author concludes that EPA needs to identify and eliminate impediments to its §7 authority by developing clear guidelines for §7 actions, and redelegate decisionmaking authority within EPA over imminent hazards.


Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency: When Does a Waste Escape RCRA Subtitle C Regulation?

by Barry Needleman

Congress enacted the Resource Conservation and Recovery Act (RCRA) in 1976, to regulate management of solid and hazardous waste. RCRA Subtitle C regulates hazardous waste management and Subtitle D governs nonhazardous, solid waste. In 1984, Congress passed the Hazardous and Solid Waste Amendments (HSWA), significantly amending and expanding RCRA Subtitle C. HSWA added to RCRA the Land Disposal Restriction (LDR) Program, or land ban, which bars land disposal of hazardous wastes that fail to meet U.S. Environmental Protection Agency (EPA or the Agency)-promulgated treatment standards.

On June 1, 1990, EPA published land-ban treatment standards for a set of hazardous wastes known as the "third third." Members of the regulated community, industry groups, and environmental organizations challenged these standards in Chemical Waste Management, Inc. [CWM] v. U.S. Environmental Protection Agency. The decision, which some have called a significant victory for environmentalists and a major blow to industry, upheld many of the regulations. It clarifies the broad scope of EPA's authority over waste and makes important changes to RCRA's approach to regulation of characteristic wastes, underground injection of hazardous waste under the Safe Drinking Water Act (SDWA) and treatment of waste in lagoons at water treatment facilities regulated under the Federal Water Pollution Control Act (FWPCA).