Federal and State Environmental Relations Wikipedia Article


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Federal and State Environmental
Relations Wikipedia Article

By: Karin Dunne, Sean

and Andrew Cheung


Environmental regulation is done piecemeal, by
type of pollution.

States have concurrent authority to impose state
laws that meet or exceed federal standards.

Federal environmental laws often require or grant
regulatory authority to states.

State enforcement agencies work with Federal
regulators to create and enforce these rules.

State and Federal regulators often disagree over
the rules or their interpretation


Water pollution

Clean Water Act

Safe Drinking Act

Coastal Zone Management Act

Air Pollution

Clean Air Act

New Source Review

Climate Change Cases

Solid Waste Pollution

Resource Conservation & Recovery Act (RCRA)

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Other Issues

Endangered Species Act

Emergency Planning and Community Right
Know Act

Federal Insecticide, Fungicide, and Rodenticide Act

Questions of Enforcement



Water Pollution

Water Pollution

Clean Water Act of 1972

Establishes basic structure for regulating discharges of
pollutants into waters and regulating quality standards for
surface waters

Predecessor: Federal Water Pollution Control Act of 1948

Reorganized and expanded in 1972

Water Pollution (continued)

Clean Water Act of 1972 Cases

Controversy over “significant nexus” to “navigable waters”

S. D. Warren Co. v. Maine Board of Environmental Protection

Ruled that hydroelectric dams were subject to Act

United States v. Riverside

Established that intrastate wetlands are regulated under Act

Water Pollution (continued)

Safe Drinking Water Act of 1974

Ensures safe drinking water for

EPA sets standards and oversees states, localities and water

Originally passed in 1974 and was amended in 1986 and 1996

Protects drinking water and sources

Rivers, lakes, reservoirs, springs and ground water wells

Does not apply to bottled water (FDA)

Water Pollution (continued)

Coastal Zone Management Act of

Administered by NOAA’s Office of Ocean and Coastal
Resource Management

Requires states to develop State Coastal Zone Management
Plan or program

Federal actions in coastal areas must comply with state plans

Provides grants to be used in maintenance

Balances economic development with environmental

Two national programs

National Coastal Zone Management Program

National Estuarine Research Reserve System

Clean Air Act

The CAA requires the EPA to set national ambient air

responsibility for attainment and maintenance of
these standards rests with state and local

These agencies are authorized to achieve these standards
through state
specific permitting and enforcement

Clean Air Act

New Source Review is a permitting process
review for environmental controls prior to construction
of any "new pollution source

Clean Air Act

New Source Review

Nonattainment Areas

states must establish plans and
make reasonable progress towards attainment as
“expeditiously as possible”

Prevention of Significant Deterioration

new sources can
never reduce ambient air quality below federal ambient
air quality standards

Clean Air Act

New Source Review

States have disagreed with EPA over national

EPA authority to change and revise rules has been

EPA has disagreed with
state permitting

EPA has established authority to countermand state permitting

Clean Air Act Continued

States have
against the EPA for failing to
regulate carbon

In Mass. v. EPA states
succeeded in compelling EPA to
promulgate rules to regulate C02 emissions under the
clean air act

Climate Change

Solid Waste



Definition of solid waste.

(a)(1) A
solid waste
is any discarded material that is not excluded under
261.4(a) or that is not excluded by a variance granted under
260.30 and 260.31 or that is not excluded by a non
waste determination under
260.30 and 260.34.

(2)(i) A
discarded material
is any material which is:

(A) Abandoned, as explained in paragraph (b) of this section; or

(B) Recycled, as explained in paragraph (c) of this section; or

(C) Considered inherently waste
like, as explained in paragraph (d) of this section; or

(D) A military

identified as a solid waste in

(ii) A hazardous secondary material is not discarded if it is generated and reclaimed under the control of the generator as d
ned in
260.10, it is not speculatively accumulated as defined in
261.1(c)(8), it is handled only in non
based units and is contained in such
units, it is generated and reclaimed within the United States and its territories, it is not otherwise subject to material
fic management
conditions under
261.4(a) when reclaimed, it is not a spent lead acid battery (see
266.80 and
273.2), it does not meet the listing
description for K171 or K172 in
261.32, and the reclamation of the material is legitimate, as specified under
260.43. (See also the
notification requirements of
260.42). (For hazardous secondary materials managed in land
based units, see

(b) Materials are solid waste if they are
by being:

(1) Disposed of; or

(2) Burned or incinerated; or

(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or

(c) Materials are solid wastes if they are

or accumulated, stored, or treated before recycling

as specified in paragraphs (c)(1)
through (4) of this section.

Used in a manner constituting disposal.
(i) Materials noted with a “*” in Column 1 of Table 1 are solid wastes when they are:

(A) Applied to or placed on the land in a manner that constitutes disposal; or

(B) Used to produce products that are applied to or placed on the land or are otherwise contained in products that are applie
d t
o or
placed on the land (in which cases the product itself remains a solid waste).

(ii) However, commercial chemical products listed in
261.33 are not solid wastes if they are applied to the land and that is their ordinary
manner of use.

Burning for energy recovery.
(i) Materials noted with a “*” in column 2 of Table 1 are solid wastes when they are:

(A) Burned to recover energy;

(B) Used to produce a fuel or are otherwise contained in fuels (in which cases the fuel itself remains a solid waste).

(ii) However, commercial chemical products listed in
261.33 are not solid wastes if they are themselves fuels.

Materials noted with a “

” in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with an “*” in
column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements of
261.2(a)(2)(ii), or 261.4(a)(17), or
261.4(a)(23), or 261.4(a)(24) or 261.4(a)(25).

Accumulated speculatively.
Materials noted with a “*” in column 4 of Table 1 are solid wastes when accumulated speculatively.

What is solid waste?

Solid waste means any garbage, refuse, sludge from a wastewater treatment plant, water
supply treatment plant, or air pollution control facility and other discarded materials
including solid, liquid, semi
solid, or contained gaseous material, resulting from industrial,
commercial, mining and agricultural operations, and from community activities, but does
not include solid or dissolved materials in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges that are point sources subject
to permit under 33 USC 1342, as amended (86 Stat. 880), or source, special nuclear or
product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat.
923) except as may be provided by existing agreements between the State of New York
and the government of the United States (see section 360
1.3 of this Part).

In Simple Words


Solid wastes are any discarded (abandoned or considered waste
like) materials. Solid wastes can be solid, liquid, semi
solid or containerized gaseous

NY Department of
Environmental Conservation

Inherently waste
like materials.
The following materials are solid wastes when they are recycled in any manner:

(1) Hazardous Waste Nos. F020, F021 (unless used as an ingredient to make a product at the site of generation), F022, F023, F
, and F028.

(2) Secondary materials fed to a halogen acid furnace that exhibit a characteristic of a hazardous waste or are listed as a h
rdous waste as defined in subparts C or
D of this part, except for brominated material that meets the following criteria:

(i) The material must contain a bromine concentration of at least 45%; and

(ii) The material must contain less than a total of 1% of toxic organic compounds listed in appendix VIII; and

(iii) The material is processed continually on
site in the halogen acid furnace via direct conveyance (hard piping).

(3) The Administrator will use the following criteria to add wastes to that list:

(i)(A) The materials are ordinarily disposed of, burned, or incinerated; or

(B) The materials contain toxic constituents listed in appendix VIII of part 261 and these constituents are not ordinarily fo

in raw materials or products for
which the materials substitute (or are found in raw materials or products in smaller concentrations) and are not used or reus
during the recycling process; and

(ii) The material may pose a substantial hazard to human health and the environment when recycled.

Materials that are not solid waste when recycled.
(1) Materials are not solid wastes when they can be shown to be recycled by being:

(i) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed;


(ii) Used or reused as effective substitutes for commercial products; or

(iii) Returned to the original process from which they are generated, without first being reclaimed or land disposed. The mat
al must be returned as a substitute
for feedstock materials. In cases where the original process to which the material is returned is a secondary process, the ma
ials must be managed such that there
is no placement on the land. In cases where the materials are generated and reclaimed within the primary mineral processing i
stry, the conditions of the
exclusion found at
261.4(a)(17) apply rather than this paragraph.

(2) The following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process (d
ribed in paragraphs (e)(1) (i) through (iii)
of this section):

(i) Materials used in a manner constituting disposal, or used to produce products that are applied to the land; or

(ii) Materials burned for energy recovery, used to produce a fuel, or contained in fuels; or

(iii) Materials accumulated speculatively; or

(iv) Materials listed in paragraphs (d)(1) and (d)(2) of this section.

Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation.
Respondents in actions to enforce regulations implementing
subtitle C of RCRA who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation
, m
ust demonstrate that there is a known
market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must pr
de appropriate documentation
(such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate th
the material is not a waste, or is
exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials mu
show that they have the necessary
equipment to do so.

[50 FR 664, Jan. 4, 1985, as amended at 50 FR 33542, Aug. 20, 1985; 56 FR 7206, Feb. 21, 1991; 56 FR 32688, July 17, 1991; 56


42512, Aug. 27, 1991; 57 FR
38564, Aug. 25, 1992; 59 FR 48042, Sept. 19, 1994; 62 FR 6651, Feb. 12, 1997; 62 FR 26019, May 12, 1997; 63 FR 28636, May 26,

98; 64 FR 24513, May 11, 1999;
67 FR 11253, Mar. 13, 2002; 71 FR 40258, July 14, 2006; 73 FR 64760, Oct. 30, 2008; 75 FR 13001, Mar. 18, 2010]

EPA Definition

Use constituting


Energy recovery/ fuel



except as

provided in
261.4(a)(24), or







Spent Materials





Sludges (listed in 40
CFR Part 261.31 or





Sludges exhibiting a
characteristic of
hazardous waste




products (listed in
40 CFR 261.31 or





products exhibiting a
characteristic of
hazardous waste




Commercial chemical
products listed in 40
CFR 261.33



Scrap metal that is not
excluded under





EPA Tool


waste tires


scrap metal

latex paints

furniture and toys

domestic refuse (garbage)

discarded appliances and vehicles

uncontaminated used oil and anti

empty aerosol cans, paint cans and compressed gas

construction and demolition debris, asbestos

Handling Definitions

A material is discarded if it is abandoned by being:

disposed of;

burned or incinerated, including being burned as a fuel for the
purpose of recovering usable energy; or

accumulated, stored or physically, chemically or biologically
treated (other than burned or incinerated) instead of or
before being disposed of.

A material is disposed of if it is
: Discharged,
deposited, injected, dumped, spilled, leaked or placed into
or on any land or water so that such material or any
constituent thereof may enter the environment or be
emitted into the air or discharged into groundwater or
surface water.

Source: http://www.dec.ny.gov/chemical/8732.html

Setting the Stage


1950s and 1960s

1956: the Federal Highway Act increased US road mileage
by 40000 miles while rails and bus systems remain

Solid Waste Disposal Act (1965)

R² = 0.889

US Car Production


US Car Production by Year

SDWA 1965

Unregulated Waste Disposal

Resources Conservation and Recovery
Act (RCRA)

EPA formed in 1970s had been monitoring solid wastes

Amendment to SWDA

So powerful that SWDA is referred to as RCRA

Congress established RCRA’s goals, which are to:

that wastes are managed in a
manner that
human health and the

or eliminate, as expeditiously as
possible, the
of waste generated,
including hazardous waste

energy and natural
resources through
recycling and recovery.

to as RCRA


RCRA States vs. Federal

Federal Standards

State Standards ≥ Federal Standards

Federal Enforcement still maintains authority even if state
is granted permission


Superfund Sites

abandoned hazardous waste locations
that must be cleaned up

Bankruptcy and Polluter Fees

EPA must involve states when concerning:

Negotiations with potentially responsible parties

The National Priorities List listing and deleting process

Study of the site to determine cleanup options

Selection and implementation of the remedy.


CERCLA State Coercion

CERCLA, as amended, prohibits EPA from providing for a remedial action unless the State
makes the following assurances or guarantees:

Pay part of the cleanup.
A State is required to pay 10 percent of the cost of actual cleanup
only if the site was privately operated at the time of the hazardous substance release. A State
is required to pay 50 percent or more of the total response costs incurred by Superfund if the
State or locality operated the site at the time hazardous wastes were disposed there. For
States example, if an old municipal landfill is found leaking hazardous chemicals, the State
would be required to provide at least half the cost of an entire Superfund response. Political
subdivisions may provide the cost share, but the State must assure payment in case of default.

Ensure the availability of a facility(s) for disposal of hazardous materials removed from a site
during cleanup.
Disposal facilities must comply with all Federal and State requirements, and
must not threaten the quality of human health and the environment.

Ensure that the State’s disposal capacity can adequately handle all wastes generated within the
State over 20 years (effective starting in 1989).

Operate and maintain the selected remedy once the cleanup is completed and is proven to be
operational and functional.
The State assumes full responsibility for future operation and
maintenance. Although a political subdivision may manage the actual operation and in
maintenance of the selected remedy, the State maintains ultimate responsibility



Superfund State Contracts

Federal leadership

Cooperative Agreements

State leadership


New Jersey’s Industrial Site Recovery Act

State level regulation

Property transfer law; environmental condition of property
mandatory before transfer

Federal Motor Carrier Safety Regulations

Department Of Transportation (Oct 1, 1998)


the manufacture, fabrication, marking, maintenance,
reconditioning, repair, testing, or distribution of packages or
containers for use by any "person" in the transportation of
hazardous materials in commerce, or

the transportation or shipment by any "person" of hazardous
materials in "commerce”

Controls packaging, labeling, handling & record keeping


U.S. v. Power Engineering Co., No. 01
1217 (Sept. 4, 2002)


Players: Colorado Department of Public Health and
Environment, EPA, Power Engineering Co.

Decision: EPA can enforce their regulations even after a state
has already enforced its own regulations

Source: http://www.epa.gov/compliance/resources/cases/civil/rcra/power090402.html

Cases (Continued)


New Jersey, Inc. v. Jackson


States can waive immunity from being sued in Federal Court by
private citizens

Essentially, states that pollute a lot can leave private citizens to
foot the bill under CERCLA

If site is on NPL, then state will have to pay for pollution
however. (possible gaming?)


Cases (Continued)


Ranch and Trucking
, Docket No. FMCSA


Federal Motor Carrier Safety Regulations

Interstate commerce is regulated by FMCSA

Cattle trucked to outskirts of Montana, then trucked to North
Dakota by different company

Jurisdiction of act is expanded to interstate commerce because
this implies transportation



Other Issues

Other Issues

Endangered Species Act of 1973

“Provides a program for the conservation of threatened and
endangered plants and animals and the habitats in which they
are found”

Managed overall by USFWS and NOAA Fisheries Service

Section 6 provides funding for state level programs

Some plants or animals may be threatened within a state, but not
throughout the country

Other Issues (continued)

Emergency Planning and Community Right
Know Act
of 1986

Created by Superfund Amendments and Reauthorization Act of

Required establishment of state and tribe emergency response

Section 302 requires facilities to notify local commissions of
presence of any “extremely hazardous substance”

Other Issues (continued)

Federal Insecticide, Fungicide, and

Act of

Created to regulate pesticides in the US

All pesticides distributed or sold in US must be registered by
the EPA

EPA works with states to develop pesticide programs, monitor
procedures and encourage regulatory activities within states
and tribes