EPA/742/R-95/010
Pollution Prevention
Educational Resource Compendium:
Business
Law
NATIONAL POLLUTION PREVEHTiCN CENTER FOR HIGHER EC".'CATION
University ol Michigan, Dana Building
430 East University Ave.
Ann Arbor. Ml 48109-1115
313-764-1412 • F«: 313-936-2195 • E-y/uu nppcOumic i.3du
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Pollution Prevention Educational Resource Compendia
Goal Statement and Summary:
Education offers one of the greatest opportunities fir achieving a more
tomorrow's leaders. With them in mindf the NPPC offers pollution prevention
industry f and acadcrma.
This is the Business Law compendium. Other compendia-in-progress cover disapbnes 8?«^-r"£™E^-£^ «
Architecture, ChemicalEngineering, Chemistry, Corporate ^^ETO^^E^^^f2Sl ^'-
finance, Industrial Ecology, Industrial Engineering and Operations Research, and Operations Mamgana*, vJW^
more information, contact the NPPC directly.
© Copyright 1994 by the Regents of the University of Michigan.
Cleanvater, Scott W. & Joanne M. Scanlon, Legal Incentives for Minimizing Waste, 10 ENVTL. PROGRESS,
Aug. 1991, at 169. Reprinted with permission of the American Institute of Chemical Engineers
for educational purposes only.
01991 AIChE All rights reserved.
Grayson, Lynn E., The Pollution Prevention Act of 1990: Emergence of a New Environmental Policy,
22 Envtl. L Rep. (EnvtL L Inst) 10,392 (1992). Reprinted with permission of the Environmental Law
Institute for educational purposes only.
01992 Environmental Law Institute. All rights reserved.
Guruswamy, Lakshman, Integrated Thoughtways: Re-Opening of the Environmental Mind? 1989
Wts. L REV. 463. Reprinted with permission of the Wisconsin Law Review for educational purposes only.
01989 Wisconsin Law Review. All rights reserved.
Johnson, Stephen M., From Reaction to Proaction: The 1990 Pollution Prevention Act,
17 Cotuw. J. ENVTU L153 (1992). Reprinted with permission of the Columbia Journal of
Environmental Law for educational purposes only.
01992 Columbia Journal of Environmental Law. All rights reserved.
Published by:
Tha National Pollution Prevention Center
for Higher Education
University of Michigan. Dana Building
430 East University Ave.
Ann Arbor, Ml 48109-1115
• Phone: 313-764-1412
• Fax: 313-936-2195
• E-mail; nppcOumich.edu
The mission of the NPPC is to promote sustainable development
by educating' students, faculty, and professionals about pollution
prevention; create educational materials; provide tools and
strategies for addressing relevant environmental problems; and
establish a national network of pollution prevention educators.
In addition to develop^ educational materials and conducting
research, the NPPC also offers an internship program, profes-
stonal education and training, and conferences.
Your Input is Welcomel
We are very interested in your feedback on these materials.
Please take a moment to offer your comments and communicate
them to us. Also contact us if you wish to receive a documente
list order any of our materials, collaborate on or review NPPC
resources, or be listed in our Directory of Pollution Prevention
in Higher Education.
We're Going Online!
The NPPC provides information on its programs and educational
materials through the Internet's Worldwide Web; our URL is:
http://www.snre.umich.edu/nppe
We may also update the NPPC information available through
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(ftp snre.umich.edu). Please contact us if you have comments
about our online resources or suggestions for publicizing our •-
educational materials through the Internet. Thank you!
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Pollution Prevention
and Business Law
EVENTION CENTER FOR HIGHER EDUCATION
Table of Contents
Explanation of Contents
Introductory Materials
D Overview of Environmental Problems
D Pollution Prevention Concepts and Principles
D Pollution Prevention: An Introduction for Law Teachers
Pollution Prevention and Business Law Resource List
D Educational Tools
D Reference Materials
NPPC Resources
D A Pollution Prevention Primer for Law Teachers
D Selected Readings
D Annotated Bibliography
Q A Chemical Engineer's Guide to Environmental Law
and Regulation
All documents can be ordered separately—see the NPPC Order Form.
Short documents are free of charge; to cover the cost of photocopying,
there is a small fee for longer documents.
National Pollution Prevention Center for Higher Education • University of Michigan
Dana Building, 430 East University, Ann Arbor Ml 48109-1115
Phone: 313.764.1412 • Fax: 313.936.2195 • E-mail: nppc@umich.edu
May be reproduced
freely for non-commercial
educational purposes.
3
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Pollution Prevention
and Business Law
MATICMJU. POU.UTION PBEVENTION CENTER FOR HIGHER EDUCATION
Explanation of Compendium Contents
• Introductory Materials
D Overview of Environmental Problems. This 50-page paper high-
lights major areas of environmental concern: energy use, global
change, resource depletion, land use and development, waste, air
quality, water quality and quantity, ecological health, and human
health. It includes definitions of concepts and terms, current data
and research findings on the state of the environment, tables,
figures, and guidance on obtaining additional information.
This document is designed to assist faculty members from all
disciplines in preparing course materials and lectures. For faculty
(and students) who may not have extensive knowledge of environ-
mental issues, it provides background information; for people
already familiar with environmental problems, it is a convenient,
concise source of current data. The document is formatted so that
individual topic areas can be easily reproduced for distribution to
students; all figures and tables are provided in a full-page format
suitable for overhead projection.
D Pollution Prevention Concepts arid Principles. This 15-page paper
introduces the concepts, terminology, objectives, and scope of pollu-
tion prevention. It discusses how government and the private sector
are currently perceiving and implementing pollution prevention
and describes the barriers and benefits encountered in implementing
pollution prevention activities.
D Pollution Prevention: An Introduction for Law Teachers. This
two-page summary introduces teachers to the basic concepts of
pollution prevention and the law.
• Pollution Prevention and Business Law Resource List
This is a list of all relevant resources known to the NPPC, including the
materials that we produce and/or distribute. NPPC has strived to make
this list as comprehensive as possible—-we welcome suggestions on what
to include in future editions of the Resource List. Note that all NPPC
Resources (see next section) appear in the Resource List.
D Educational Tools. Lists six articles and three statutes.
D Reference Tools. Lists 16 books and reports, 42 articles, 13 govern-
ment reports and hearings, one federal statute, 27 state statutes, and
three faculty involved in pollution prevention education.
April 1935
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• NPPC Resources
The NPPC produces and distributes all of these resources; in many
cases, the NPPC has also developed them. All appear in the Resource
List (see previous section).
D Annotated Bibliography. Describes 36 articles, 16 books and
pamphlets, and 13 reports and hearings; lists one federal statute
and 27 state statutes.
D Selected Readings. Key articles and statutes in the field:
- Clearwater, Scott W. & Joanne M. Scanlon, Legal Incentives
for Minimizing Waste, 10 ENVTL. PROGRESS, Aug. 1991, at 169.
- Grayson, Lynn E., The Pollution Prevention Act of 1990:
Emergence of a New Environmental Policy, 22 Envtl. L. Rep.
(Envtl. L. Inst.) 10,392 (1992).
- Guruswamy, Lakshman, Integrated Thoughtways: Re-Opening
of the Environmental Mind? 1989 Wis. L. REV. 463.
- Johnson, Stephen M., From Reaction to Proaction: The 1990
Pollution Prevention Act, 17 COLUM. J. ENVTL. L. 153 (1992).
- Pollution Prevention Act of 1990,42 U.S.C. Sec. 13101-13109.
The federal statute.
- Connecticut Environmental Assistance to Business Act, Conn.
Gen. Stat. Ann. App. Pamphlet, PA 91-376 (1992). Voluntary
state statute.
- Massachusetts Toxics Use Reduction Act, Mass. Ann. Laws
Ch. 211 Sec. 1-23 (Law. Co-op Supp. 1992). Mandatory state
statute.
D Paper "A Pollution Prevention Primer for Law Teachers."
A 16-page discussion comparing and contrasting pollution
prevention and media-specific regulations and laws. Describes
federal and state legislation and pollution prevention programs.
D "A Chemical Engineer's Guide to Environmental Law and
Regulation." This 100-page guide is designed to give chemical
engineers a general overview of the field of environmental law.
Main sections discuss (1) specific reasons why chemical engineers
should understand environmental laws and regulations; (2) the
roles of legislatures, administrative agencies, and courts; (3) the
interaction of environmental laws at federal, state, and local levels;
and (4) relevant provisions of nine federal Acts: Toxic Substances
Control Act; Federal Insecticide, Rodenticide, and Fungicide Act;
Occupational Safety and Health Act; Clean Air Act; Clean Water
Act; Resource Conservation and Recovery Act; Comprehensive
Environmental Response, Compensation, and Liability Act;
Emergency Plai jiing and Community Right-to-Know Act; and
Pollution Prevention Act.
April 1995
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Pollution Prevention
and Business Law
NATIONAL POLLUTION PREVENTION CENTER FOR >
Pollution Prevention:
An Introduction for Law Teachers
Prepared by Holly A. Lynch
under the direction of Lynda }. Oswald
Assistant Professor of Business Law, University of Michigan
Pollution Prevention vs.
Media-Specific Policy
Pollution prevention is a relatively recent alternative to
traditional media-specific environmental policy. It is
defined as the use of materials, processes, or practices
that reduce or eliminate the creation of pollutants or
wastes. Five techniques are used in industrial opera-
tions to prevent pollution: equipment or technology
modifications; process or procedure modifications;
reformulation or redesign of products; substitution of
raw materials; and improvements in housekeeping,
maintenance, training, and inventory controls.
Pollution prevention reduces pollution generation at
its source, thereby reducing the need for subsequent
treatment and disposal of treatment by-products.
Pollution prevention creates a cleaner environment
because reduced treatment and disposal result in less
waste entering the environment through all media —
land, water, and air. Pollution prevention also benefits
industry because reduced pollution generation gener-
ally results in lower waste disposal costs, decreased
environmental liabilities/an improved environmental
public image, and more efficient operations.
Traditionally, environmental policy has been media-
specific: water quality is regulated under the Clean
Water Act, air quality under the Clean Air Act, etc.
Little attention has been paid to the synergistic effects
of pollution and the interactions between the different
environmental media. Media-specific environmental
policy has proven ineffective at protecting the environ-
ment. Analysts criticize media-specific laws as being
a toxic "shell game," in which pollutants are removed
from one environmental medium and put into another
for disposal. Media-specific laws are also not comprehen-
sive. For example, although non-point source pollution,
such as agricultural runoff (containing pesticides, her-
bicides, and fertilizers), is a major contributor to water
quality degradation, it is only minimally regulated.
Media-specific laws often mandate certain technology-
based treatment methods that make industry dependent
on those methods to meet discharge limits. This depen-
dence increases overall pollution entering the environ-
ment: treatment produces waste by-products requiring
disposal. In addition, the rigidity of media-specific laws
can deter industry from adopting innovative or more
effective waste practices, such as pollution prevention.
Legislative and
Corporate Responses
The federal Pollution Prevention Act was enacted
in 1990 to encourage industry to voluntarily adopt
pollution prevention techniques. To that end, the Act
provides states with matching grants to fund source
reduction technical assistance for businesses. The Act
also requires that companies report source reduction
and recycling activities at their facilities in the previous
year. That information is made available to the public,
in an effort to pressure companies into voluntarily
adopting pollution prevention.
More than half the states have some form of pollution
prevention legislation in place as well. Some have en-
acted aggressive statutes that, in addition to providing
technical assistance and grant money, mandate facility-
wide pollution prevention planning or set specific,
state-wide source reduction goals. The majority of
state programs are voluntary and provide only technical
assistance and grant money in their efforts to induce
businesses to adopt pollution prevention.
r^r Cemer f°r H'9her Education
. East University, Ann Arbor Ml 48109-1115
Phone: 313.764.1412 . Fax: 313.936.2195 . E-mail: nppc@um,ch.edu
MKh,gan
May be reproduced
freely for non-commercial
educational purposes.
Introduction • 1
August 1994
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Why should a company voluntarily adopt pollution
prevention? Proponents claim that the greatest incen-
tive for adopting pollution prevention is reduced waste
disposal costs. Companies that prevent pollution at
the source save the costs of waste handling, shipping,
and disposal, which have increased dramatically in
recent years. Reduced waste generation also decreases
the likelihood that a company will face environmental
liability for improper waste transport, treatment, stor-
age, or disposal. Pollution prevention can improve a
company's image with a public that is increasingly
aware of the environmental records of corporations and
the environmental impacts of products. A "greener"
public image can improve a company's public relations,
market share, and profitability. By focusing on produc-
tion processes, materials use, and maintenance changes
to reduce the volume or toxicity of pollution that is
generated, pollution prevention also generally results in
a more efficient use of raw materials. Pollution preven-
tion, therefore, can make a company more competitive.
Despite the potential benefits of pollution prevention
activities, only five percent of American companies have
voluntarily adopted pollution prevention programs.
This can be attributed to a number of institutional and
practical barriers. For example, media-specific laws
block pollution prevention's large-scale adoption by
encouraging companies to view pollution control with
a media-specific mindset. Companies rely on "end-
of-pipe" treatment methods because these methods:
(1) are often effective at attaining compliance with sta-
tionary discharge limits; (2) may represent a significant
corporate investment; and (3) are typically already in
place and do not require production changes. Pollution
prevention, on the other hand, may result in compliance
risk, lost investment, and production changes. In
addition, many companies are unaware of pollution
prevention and its significant potential benefits.
A handful of U.S. companies have instituted pollution
prevention programs, however, and are currently
enjoying its economic benefits. Successful programs
include Dow Chemical's Waste Reduction Always Pays
(WRAP), 3M's Pollution Prevention Pays (3P), DuPont's
ReSource Program, and Chevron's Save Money and
Rediice'Taxics (SMART) program.
Pollution Prevention as
Part of the Law Curriculum
Future business managers and lawyers alike would
benefit from an awareness of pollution prevention
issues. In most instances, pollution prevention topics
can easily be integrated into existing law courses;
extensive revision of curriculum or syllabi should not
be necessary. For example, in courses that cover envi-
ronmental law as a discrete topic, pollution prevention
should be presented as a separate topic, and should be
compared and contrasted to traditional media-specific
laws and policies. In traditional business law or regula-
tory law courses, pollution prevention can be presented
as a special topic to illustrate how regulatory schemes
and policy choices can influence behavior (i.e., effects
of media-specific laws versus effects of pollution pre-
vention laws), to illustrate institutional barriers to legal
change, and to encourage discussion of short-run versus
long-run cost considerations in policy choices.
Four other documents are available from the National
Pollution Prevention Center for Higher Education:
• Pollution Prevention and Business Law Resource List —
a list of resources on pollution prevention applicable
to business law.
• A Pollution Prevention Primer for Law Teachers —
provides further background information.
• Annotated Bibliography of Law-Related Pollution Preven-
tion Sources — lists and describes additional sources.
• Selected Readings on Business Law and Pollution Preven-
tion — a collection of key articles and legislation.
The authors of this article gratefully acknowledge
Professor Nancy Kubasek, Bowling Green State University,
and Professor James P. Karp, Syracuse University,
for their thoughtful and extensive review comments.
Original produced on Hammermill Unity DP,
a 50% post-consumer/50% pre-consumer recycled paper
made from de-inked old newspapers and magazines.
Introduction • 2
August 1994
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Pollution Prevention
and Business Law
NATIONAL POLLUTION PREVENTION CENTER FOR HIGHER EDUCATION
Pollution Prevention and
Business Law Resource List
The following Educational Tools and Reference Materials are
available to faculty who are incorporating pollution prevention con-
cepts and tools into their courses. We have attempted to make this list
as comprehensive as possible; please contact us if you can identify gaps
and assist us infilling them with quality educational materials. This
list includes resources available through the NPPC (A) and the U.S.
EPA Pollution Prevention Information Clearinghouse, Washington,
D.C., 202-260-1023 (*B»). An asterisk (*) indicates materials
described in this compendium's annotated bibliography.
EDUCATIONAL TOOLS
Articles
Scott W. Clearwater & Joanne M. Scanlon, Legal
Incentives for Minimizing Waste, 10 ENVTL. PROGRESS,
Aug. 1991, at 169. A
Lynn E. Grayson, The Pollution Prevention Act of
1990: Emergence of a New Environmental Policy,
22 Envtl. L. Rep. (Envtl. L Inst.) 10,392 (1992). &
Lakshman Guruswamy, Integrated Thoughtways:
Re-Opening of the Environmental Mind? 1989 Wis.
L. REV. 463. &
Stephen M. Johnson, From Reaction to Proaction:
The 1990 Pollution Prevention Act, 17 COLUM. J.
ENVTL. L. 153(1992). &
Holly Lynch, Lynda Oswald, and Elaine Murphy.
Annotated Bibliography of Law-Related Pollution
Prevention Sources. National Pollution Prevention
Center, 1993. 14 pages. Annotated bibliography of
50 citations of articles, books, pamphlets, govern-
ment documents, and statutes. &
Holly Lynch and Lynda Oswald. A Pollution Pre-
vention Primer for Law Teachers. National Pollution
Prevention Center, 1993. 16 pages. Discusses
pollution prevention vs. media-specific regulations
and laws. Also describes current acts and federal
and state programs. &
Statutes
Connecticut Environmental Assistance to Business
Act, Conn. Gen. Stat. Ann. App. Pamphlet, PA
91 -376 (1992). Voluntary state statute. &
Massachusetts Toxics Use Reduction Act, Mass.
Ann. Laws Ch. 211 Sec. 1-23 (Law. Co-op Supp.
1992). Mandatory state statute. A
Pollution Prevention Act of 1990, 42 U.S.C.
Sec. 13101-13109. The federal statute. &
REFERENCE MATERIALS
Books and Reports
BUSINESS AND THE ENVIRONMENT: TOWARD COMMON
GROUND (Kent Gilbreath ed., 1984).*
FRANCES CAIRNCROSS, COSTING THE EARTH: THE
CHALLENGE FOR GOVERNMENTS, THE OPPORTUNITIES
FOR BUSINESSES (1991).*
BARRY COMMONER, MAKING PEACE WITH THE PLANET (1992):
CORPORATE STEWARDSHIP OF THE ENVIRONMENT
(Barbara H. Peters & James L. Peters eds., 1991).*
CORPORATIONS & THE ENVIRONMENT: How SHOULD DECI-
SIONS BE MADE? (David L. Brunner et al. eds., 1980).*
ENVIRONMENTAL DEFENSE FUND, APPROACHES TO SOURCE
REDUCTION: PRACTICAL EVIDENCE FROM EXISTING POLICIES
AND PROGRAMS (June 1986).*
National Pollution Prevention Center for Higher Education • University of Michigan
'Dana Building, 430 East University, Ann Arbor Ml 48109-1115
Phone: 313.764.1412 • Fax: 313.936.2195 • E-mail: nppc@umich.edu
May be reproduced
freely for non-commercial
educational purposes.
Resource List • 1
August 1994
-------
GETTING IT GREEN: CASE STUDIES IN CANADIAN ENVIRON-
MENTAL REGULATION (G. Bruce Doern ed. 1990).*
JOEL S. HIRSCHHORN & KIRSTEN U. OLDENBURG, PROS-
PERITY WITHOUT POLLUTION: THE PREVENTION STRATEGY
FOR INDUSTRY AND CONSUMERS (1991 ).*
INTEGRATED POLLUTION CONTROL IN EUROPE AND NORTH
AMERICA (Nigel Haigh & Frances Irwin eds., 1990).*
MAKING POLLUTION PREVENTION PAY: ECOLOGY WITH
ECONOMY AS POLICY (Donald Huisingh & Vicki Baily
eds., 1982). Includes:
• Russell H. Susag, Pollution Prevention Pays:
The 3M Corporate Experience, 17.*
• Dan Meyer, In Every Dark Cloud..., 23*
• Carlisle Ford Runge, Positive Incentives for Pollution
Control in North Carolina: A Policy Analysis, 115.*
STEPHAN SCHMIDHEINY, CHANGING COURSE: A GLOBAL
BUSINESS PERSPECTIVE ON DEVELOPMENT AND THE
ENVIRONMENT (1992).*
R. SULUVAN, FACILITY POLLUTION PREVENTION PLANNING: A
MATRIX OF THE PROVISIONS OF TWELVE STATE LAWS (1990).*
WASTE REDUCTION INSTITUTE FOR TRAINING AND APPLICATION
RESEARCH, INC., SURVEY AND SUMMARIES: STATE LEGISLA-
TION RELATING TO POLLUTION PREVENTION (April 1992).*
Articles
Gail Achterman, Strategies for Minimizing Hazardous
Wastes in Oregon, 18 ENVTL. L. 817 (1988).*
John Atcheson, The Department of Risk Reduction
or Risky Business, 21 ENVTL. L. 1375 (1991 ).*
Robert F. Blomquist, The Conservation Foundation's
Proposed "Environmental Protection Act": Prospects
and Problems for an Integrated Pollution Control Code
for the United States, 40 DEPAUL L. REV. 937 (1991).*
Robert F. Blomquist, Beyond the EPA and OTA
Reports: Toward a Comprehensive Theory and
Approach to Hazardous Waste Reduction in
America, 18 ENVTL. L. 817 (1988).*
Bradley C. Bobertz, The Tools of Prevention: Oppor-
tunities for Promoting Pollution Prevention under
Federal Environmental Legislation, 12 VA. ENVTL. L.
J. 1 (1992).*
William Y. Brown, Environmental Leadership: The
Search for Priorities and Power, 21 ENVTL. L. 1413
(1991).*
CERCLA Liability as a Pollution Prevention Strategy,
4 MARY. J. OF CONTEMP. LEGAL ISSUES 131 (1992-93).*
David Clarke, Chasing Rainbows: Is an Integrated
Statute the Pot of Gold for Environmental Policy? «
22 ENVTL. L. 281 (1992).*
Scott W. Clearwater & Joanne M. Scanlon, Legal
Incentives for Minimizing Waste, 10 ENVTL. PROGRESS,
Aug. 1991, at 169.*
Larry Edelman & David K. Rozell, Oregon's Toxics
Use Reduction and Hazardous Waste Reduction Act:
A Bellweather for Pollution Prevention Regulation,
20 Envtl. L. Rep. (Envtl. L. Inst.) 10093 (1990).*
Lois R. Ember, Strategies for Reducing Pollution at
the Source are Gaining Ground, CHEM. ENG'G NEWS,
Julys, 1991, at7.* '
Lynn E. Grayson, The Pollution Prevention Act of
1990- Emergence of a New Environmental Policy,
22 Envtl. L. Rep. (Envtl. L. Inst.) 10392 (1992).*
Lakshmah Guruswamy, Integrated Thoughtways:
Re-Opening of the Environmental Mind? 1989 Wis.
L REV. 462 (1989).*
Fred Hansen, Pollution Prevention Planning: A New
Mandate for Oregon's Environment, 6 ENVTL. FORUM,
Sept.-Oct. 1989, at 30.*
Joel S. Hischhom & Kirsten U.Oldenburg, Preventing
Pollution is No End-Of-Pipe Dream, ACROSS THE BD.,
June 1987, at 11.*
John Hodges-Copple, The Economic Advantage of
Preventing Pollution, Bus. & ECON. REV., July-Sept.
1990, at 38.*
Stephen M. Johnson, From Reaction To Proaction:
The 1990 Pollution Prevention Act, 17 COLUM. J.
ENVTL. L. 153(1992).*
Joseph I. Lieberman, Planning for Pollution Preven-
tion, 10 ENVTL: FORUM 22 (1993).*
Alan S. Miller, Cleaning the Air While Filling Corporate
Coffers: Technology Forcing and Economic Growth,
1990 ANN. SURV. AM. L, Spring 1990, at 69.*
Barry G. Rabe, From Pollution Control to Pollution
Prevention: The Gradual Transformation of American
Environmental Regulatory Policy, 8 ENVTL. & PLAN. L J.
226(1991).*
John H.-Sheridan, Pollution Prevention Picks Up^
Steam; Industry Supports Voluntary "Front-Ends"
Efforts, INDUSTRY WEEK, Feb. 17, 1992, at 36.*
Resource List • 2
August 1994
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James Gustave Speth, EPA Must Help Lead an
Environmental Revolution in Technology, 21 ENVTL. L.
1424(1991).*
Paulette L. Stenzel, Right to Act: Advancing the
Common Interests of Labor and Environmentalists,
57 ALBANY L. REV., 1 (1993).
Paulette L. Stenzel, Toxics Use Reduction Legisla-
tion: An Important 'Next Step' After Right to Know,
1991 UTAHL. REV. 707.*
David G. Stephan & John Atcheson, The EPA's
Approach to Pollution Prevention, CHEM. & ENG'G
PROGRESS, June 1989, at 53.*
Symposium, Corporate Environmentalism, 27 Col. J.
OF WORLD Bus., Fall/Winter (1992). Selected entries:
• Hans W. Micklitz, The German Packaging Order:
A Model for State-Induced Waste Avoidance? 120.*
• Robert Repetto, Environmental Taxes and U.S.
Competitiveness, 128. *
• Norman E. Duncan, The Energy Dimensions of
Sustainable Development, 164.*
• Scott Barrett, Strategy and the Environment, 202.*
• Richard Poduska, Richard Forbes, & Maria Bober,
The Challenge of Sustainable Development.
Kodak's Repsonse, 286.*
Symposium, Human Rights in Theory and Practice:
A Time of Change and Development in Central and
Eastern Europe: Pollution Control Panel, 8 CONN. J.
INTL. L, No. 2(1993):
• Kurt A. Strasser, Pollution Control in an Era of
Economic Redevelopment: An Overview, 425-37.
Symposium, Integrated Pollution Control, 22 ENVTL. L 1
(1992). Selected entries:
• Frances H. Irwin, An Integrated Framework for Pre-
venting Pollution and Protecting the Environment, 1 .*-
• Lakshman Guruswamy, Integrated Environmental
Control: The Expanding Matrix, 77*
• James E. Krier & Mark Brownstein, On Integrated
Pollution Control, 119. *
• J. Clarence Davies, Some Thoughts on Imple-
menting Integration, 139*.
• Manik Roy, Pollution Prevention, Organizational
Culture, and Social Learning, 189.*
• Barry G. Rabe & Janet B. Zimmerman, Cross-
Media Environmental Integration in the Great
Lakes Basin, 253.*
• James M. Strock, et al., Integrated Pollution
Prevention: Cat-EPA's Perspective, 311.*
Government Reports and Hearings
H. REP. No. 101-555, 101st Cong., 2d Sess. (1990).*
S. REP. No. 101-526, 101st Cong., 2d Sess. (1990).*
EPA, POLLUTION PREVENTION STRATEGY, 56 FED. REG.
7849 (Feb. 26, 1991).*
EPA, POLLUTION PREVENTION 1991: PROGRESS ON
REDUCING INDUSTRIAL PoLLUTANts (EPA/21 P-3003).
Oct. 1991.$27.*«B»
EPA, PROPOSED POLLUTION PREVENTION POLICY STATE-
MENT, 54 FED. REG. 3845 (Jan. 26, 1989).*
EPA, SPECIAL PROJECTS OFFICE, THE 33/50 PROGRAM:
FORGING AN ALLIANCE FOR POLLUTION PREVENTION (July
1991).*
EPA, EPA's 33/50 PROGRAM, A PROGRESS REPORT:
REDUCING RISKS THROUGH VOLUNTARY ACTION (July
1991).*
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Pollution Prevention Statutes
FEDERAL
Pollution Prevention Act of 1990, 42 Pub. L. No.101-
508, §§6601-6610,104 Stat.1388 (codified at U.S.C.
§§ 13101-13109).
STATE - Mandatory
Arizona: Ariz. Rev. Stat Ann. §§ 49-961 to -73
(Supp. 1992).
California: Cai. Health & Safety Code §§ 25244.12
to .24 (West 1992).
Georgia: Ga. Code Ann §§ 12-8-60 to -83 (1992).
Louisiana: La. Rev. Stat. Ann. §§ 30.2291 to .2295
(West 1989 & Supp. 1992).
Maine: Me. Rev. Stat. Ann. tit. 38, §§ 2301 to 2312
(Supp. 1991).
Massachussets: Mass. Ann. Laws ch. 211, §§1 to 23
(Law. Co-op. Supp. 1992).
Minnesota: Minn. Stat. Ann. §§1150.01 to .12
(West Supp. 1992).
MissibSippi: Miss. Code Ann. §§ 49-31-1 to -27
(1991 & Supp. 1992).
New Jersey: N.J. Rev. Stat. §§ 13:1 D-35 to -50
(West 1991).
New York: N.Y. Envtl. Conserv. Law §§ 27-0900
to -925 (McKinney Supp. 1992).
Oregon: Or. Rev. Stat. §§ 465.003 to .037 (1991).
Tennessee: Tenn. Code Ann. §§ 68-212-301 to -312
(1992).
Texas: Tex. Health & Safety Code Ann. §§ 361.501
.to.510(Vemon1992).
Vermont: Vt. Stat. Ann. tit. 10, §§6623 to 6632 .
(Supp. 1992).
Washington: Wash. Rev. Code §§ 70.95C.010
to .240 (Supp. 1992).
STATE - Voluntary
Alaska: Alaska Stat. §§ 46.06.021 to .041 (1991).
Colorado: Colo. Rev. Stat. §§ 25-16.5-101 to -110
(Supp. 1992).
Connecticut: Conn. Gen.,Stat. Ann. Appendix
Pamphlet, P.A. 91-376 (West 1992).
Delaware: Del. Code Ann. tit. 7, §§ 7801 to 7805
(1991).
Florida: Fla. Stat. §§ 403.072 to .074 (1991).
Illinois: III. Ann. Stat. ch. 111 1/2.UU 7951 to 7957
(Smith-Hurd Supp. 1992).
Indiana: Ind. Code Ann. §§ 13-9-1 to -7
(West Supp. 1992).
Iowa: Iowa Code §§ 455B.516 to .518
(West Supp. 1992).
Kentucky: Ky. Rev. Stat. Ann. §§ 224.46-310 to -325
(Michie/Bobbs-Merrill 1991).
Rhode Island: R.I. Gen. Laws §§ 37-15.1-1 to .11
(1990).
South Carolina: S.C. Code Ann. §§ 68^6-301 to -312
(Law. Co-op Supp. 1990).
Wisconsin: Wis. Stat. Ann. §§ 144.955 (West Supp.
1991).
Contributors to Education in Business
Law and Pollution Prevention
Maxine Lipeles
Washington University
St. Louis, MO 63130-4899
phone: 314-935-5455
Teaches undergraduate and graduate-level
environmental law course that covers the five
primary laws and their application and interpretation
with respect to pollution prevention.
Lynda J. Oswald
School of Business Administration, #5204
University of Michigan
Ann Arbor, Ml 48109-1234
phone: 313-763-9827
e-mail: lynda.o=wald@ umich.edu
Teaches an MBA course on management of
environmental legal issues.
Dr. Paulette Stenzel
Business,. Law & Public Policy
315 Eppley Center
Michigan State University
East Lansing, Ml 48824
Phone:517-353-3124 '
Has written on Toxics Use Reduction,
Right to Know, and Right to Act legislation.
Resource List • 4
August 1994
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Pollution Prevention
and Business Law
POLLUTION PREVENTION CENTER FOR HIGHER EDUCATION
Annotated Bibliography of Law-Related
Pollution Prevention Sources
Prepared by Holly Lynch and Elaine Murphy
under the direction of Lynda }. Oswald,
Assistant Professor of Business Law, University of Michigan
Articles
Gail Achterman, Strategies for Minimizing Hazardous
Wastes in Oregon, 18 ENVTL. L. 817 (1988).
Proposes waste reduction program for Oregon. Dis-
cusses components of a viable state waste reduction
program. Stresses benefits of waste reduction and
addresses barriers to and advantages of a state waste
reduction program.
John Atcheson, The Department of Risk Reduction
or Risky Business, 21 ENVTL. L. 1375 (1991).
Discusses the problems with risk reduction, which is
the major determinant of current environmental policy.
Criticizes the uncertainty and reactive (versus proactive)
basis of risk reduction. Argues that because risk re-
duction excludes consideration of activities that are
necessary but not necessarily "risky" (e.g., pollution
prevention), risk reduction is an inadequate basis on
which to build future environmental policy. Proposes
proactive strategies, such as pollution prevention, sus-
tainable development, and conservative technologies,
as basis for new environmental policy.
Robert F. Blomquist, The Conservation Foundation's
Proposed "Environmental Protection Act": Prospects
and Problems for an Integrated Pollution Control
Code for the United States, 40 DEPAUL L. REV. 937
(1991).
Discusses the key provisions of the Conservation Foun-
dation's proposed environmental protection act, which
are: 1) the establishment of a new department of envi-
• ronmental protection with expanded responsibilities;
2) streamlined pollution control standards focusing
on "unreasonable risks;" and 3) unified permitting,
including conditioning permits on the use of pollution
prevention methods. Also examines prospects and
problems under the proposed act. Concludes that in
the long run an integrated federal environmental code
maybe in the best interests of the United States. In the
short term, though, political realities and fragmentation
at the federal level mean that improved coordination
between federal and state agencies or executive re-
organization of pollution control agencies would be
most effective in achieving some progress toward
integrated environmental management.
Robert F. Blomquist, Beyond the EPA and OTA
Reports: Toward a Comprehensive Theory and
Approach to Hazardous Waste Reduction in
America, 18 ENVTL. L. 817 (1988).
Analyzes EPA's Report to Congress on the Minimization
of Hazardous Waste (1986), OTA (Office of Technology
Assessment's Serious Reduction of Hazardous Waste
(1986) and OTA's reply to the EPA report From Pollu-
tion to Prevention: A Progress Report on Waste Reduction
(1987). Reports were prepared in response to a Congres-
sional mandate to study the feasibility of developing
a federal waste reduction program. Evaluates their
policy proposals and discusses their inadequacies, such
as their emphasis on the short-term. Stresses that the
traditional regulatory approach is uninformed, misin-
formed, illogical, and incomplete and that a compre-
hensive, Tnultidisciplinary, and coordinated theory of
hazardous waste reduction is necessary.
Bradley C. Bobertz, The Tools of Prevention:
Opportunities for Promoting Pollution Prevention
Under Federal Environmental Legislation,
12 VA. ENVTL. L. J. 1 (1992).
Discusses strategies the EPA might consider for en-
couraging pollution prevention in the industrial sector.
Maintains that there are many opportunities for the
National Pollution Prevention Center for Higher Educadon - University of M.ch.gan
Dana Building. 430 East University. Ann Arbor Ml 48109-1115
Phone: 313.764.1412 • Fax: 313.935.2195 • E-mail: nppc@umich.edu
May be reproduced
freely for non-commercial
educational purposes.
Annotated Bibliography • 1
August 1994 '
-------
EPA to promote pollution prevention in this area, with
a focus on approaches that might be tried under the
Clean Water Act (CWA) and the Resource Conservation
and Recovery Act (RCRA). Examines these two acts and
concludes that, with little or no revision, they provide
substantial authority to implement pollution prevention
measures. Discusses four categories of government
action: (1) direct regulatory action; (2) standard-setting
initiatives; (3) the use of incentives; and (4) information
management and outreach initiatives.
William Y. Brown, Environmental Leadership: The
Search for Priorities and Power, 21 ENVTL. L. 1413
(1991).
Discusses the EPA's movement from a reactive risk
assessment approach toward a more proactive role in
anticipating and decreasing the likelihood of pollution
problems. Discusses problems with a risk assessment-
based approach. Urges corporate environmental leader-
ship, using Waste Management Inc. as an example, in
several areas: (1) compliance, (2) pollution prevention,
(3) nature conservation, (4) communication with the
public, and C5) executive attention to pollution problems.
Calls for environmental groups to evaluate their principles
as well, including: (1) their truthfulness, (2) practicing
what they preach, (3) addressing real problems, (4) em-
bracing experience, and (5) utilization of conflict as last
resort. Concludes that the EPA, industry, and environ-
mentalists all have stake in risk reduction. States that
the key is finding common interest in reducing objec-
tively identifiable risks and cooperating, to the extent
practicable, in reducing risk. >
CERCLA Liability as a Pollution Prevention Strategy,
4 MARY. J. OF CONTEMP. LEGAL ISSUES 131 (1992-93).
Argues that the high costs associated with Comprehen-
sive Environmental Response Icmpensation and Lia-
bility Act (CERCLA) cleanups and CERCLA's strict,
joint, and varied liability schemes create incentives for
businesses to prevent pollution.
David Clarke, Chasing Rainbows: Is an Integrated
Statute the Pot of Gold for Environmental Policy?
22 ENVTL. L, 281 (1992).
Examines EPA's new push toward integrated environ-
mental policy. Criticizes current fragmented policy
(both tools and programs) and suggests that integrated
environmental policy — with an emphasis on pollution
prevention, multi-media permits, risk-based strategic
planning, and market-based incentives — is the most
effective response to pollution.
Scott W. Clearwater & Joanne M. Scanlon,
Legal Incentives for Minimizing Waste,
10 ENVTL. PROGRESS, Aug. 1991, at 169.
Addresses the legal incentives for minimizing waste
under current and proposed environmental laws and
regulations. Incentives include reduced liability for
civil, criminal, Superfund, and toxic tort violations.
Larry Edelman & David K. Rozell, Oregon's Toxics
Use Reduction and Hazardous Waste Reduction Act:
A Bellweather for Pollution Prevention Regulation, 20
Envtl. L. Rep. (Envtl. L Inst.) 10093 (1990).
Discusses Oregon's efforts to move toward an
integrated pollution prevention approach through
enactment of its Toxics Use Reduction and Hazardous
Waste Reduction Act. Also describes barriers to
voluntary toxic waste reduction programs.
Lois R. Ember, Strategies for Reducing Pollution at
the Source are Gaining Ground, CHEM. ENG'G NEWS,
Jul/8,1991, at 7.
Provides an overview of legislative and industrial pol-
lution prevention initiatives. Provides case studies
(engineering focus) and discusses legal, accounting,
and'educational impediments to pollution prevention.
Lynn E. Grayson, The Pollution Prevention Act of
1990: Emergence of a New Environmental Policy,
22 Envtl. L. Rep. (Envtl. L. Inst.) 10392 (1992).
Examines the federal Pollution Prevention Act of 1990
and defines "pollution prevention" and "source reduc-
tion." Discusses and evaluates the new reporting obli-
gations the Act requires of businesses and analyzes the
possible negative impacts the Act may have on industry,
including implementation costs, mandated process
changes, and potential enforcement ramifications.
Provides an overview of EPA's motivation for promoting
pollution prevention as its primary waste management
strategy. Clarifies industry's concerns with the Act,
which is intended to represent a more cooperative
partnership between the EPA and industry.
Lakshman Guruswamy, Integrated Thoughtways:
Re-opening of the Environmental Mind? 1989 Wis. L.
REV. 462(1989).
Discusses the fragmentation of current pollution policy
and argues for the re-emergence of an integrated
approach. Examines the historical evolution of current
environmental policy and its transformation from inte-
gration to fragmentation. Concludes that enactment of
Nat.ona! Pollution Prevention Center, University of Michigan
Annotated Bibliography • 2
August 1994
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, the Conservation Foundation's Environment Integration
and Information Act — an attempt at integrated environ-
mental policy — is futile because of insurmountable
political difficulties. Proposes incorporating integrative
programs into existing law. Uses the Toxic Substances
Control Act (TCSA) to illustrate how existing law can be
used to achieve integration across environmental media.
Fred Hansen, Pollution Prevention Planning: A New
Mandate for Oregon's Environment, 6 ENVTL. FORUM,
Sept.-Oct. 1989, at 30.
Discusses Oregon's pollution prevention legislation
(Toxics Use Reduction and Hazardous Waste Reduction
Act) and its legislative history. Discusses the Act's pol-
lution prevention planning requirements and technical
assistance program. Calls the program a successful mix
of "carrots" and "sticks" to achieve goal of reduced
generation and use of toxic and hazardous substances.
Concise overview of a state program from policy
creation to enactment.
Joel S. Hischhorn & Kirsten U. Oldenburg,
Preventing Pollution is No End-Of-Pipe Dream,
ACROSS THE BD., June 1987, at 11.
Discusses flaws of current environmental policy sys-
tem (e.g., end-of-pipe focus, failure to control cross-
media effects). Proposes waste reduction as a way to
shift policy from control to prevention. Lists ways to
reduce hazardous waste generation, along with associ-
ated benefits to industry. Offers examples of corporate
programs (Dow, DuPont, 3M). Discusses barriers to
pollution prevention programs. Concludes by propos-
ing possible pollution prevention programs that could
be implemented by the government to persuade indus-
try to adopt pollution prevention.
John Hodges-Copple, The Economic Advantage of
Preventing Pollution, Bus. & ECON. REV., July-Sept.
1990, at 38.
Advocates state government involvement in pollution
prevention, with a focus on what the state can do to
promote it, such as providing pollution prevention ser-
vices (e.g., technical and financial assistance), and fos-
tering joint efforts between public and private organi-
zations. Emphasizes the experiences of Southern states.
Stephen M. Johnson, From Reaction to Proaction:
The 1990 Pollution Prevention Act, 17 COLUM. J.
ENVTL.-L 153(1992).
Argues that pollution prevention needs to replace
pol'ution control in environmental policy. Discusses
methods of pollution prevention as well as existing dis-
incentives. Examines the EPA's pollution prevention
policy, including its pollution prevention strategy, and
finds that it fails to provide adequate funding, specific
enforcement for citizens and employees, specific goals,
and regulatory incentives. Defines pollution prevention
and waste minimization. Explains the pros and cons of
both voluntary and mandatory pollution prevention
programs and concludes that, to be successful, the Act
must require mandatory programs to encourage the
maximum amount of pollution prevention possible.
Joseph I. Lieberman, Planning for Pollution
Prevention, 10 ENVTL. FORUM 22 (1993).
Argues that pollution prevention is the most efficient
approach to environmental protection. Cites alleged
failures, and the associated costs, of pollution control
approaches under the RCRA, TSCA, CERCLA, and
CWA, but maintains that effective pollution prevention
measures can be adopted within these statutory frame-
works. Concludes that the best way to achieve pollution.
prevention, and thereby environmental protection, is*
through careful planning and that regulatory agencies
should play a more active role in this process.
Alan S. Miller, Cleaning the Air While Filling Cor-
porate Coffers: Technology Forcing and Economic
Growth, 1990 ANN. SURV. AM. L., Spring 1990, at 69.
Discusses traditional economic approaches to envi-
ronmental regulation (e.g., "regulation lowers GNF'X
Suggests that such theories may be short-sighted since
environmentally superior technologies tend, to be more
energy efficient and may produce a superior product.
Discusses the technology-forcing influence of regulations,
using the example of CFC reduction and Corporate
Average Fuel Economy standards in the auto industry.
Proposes nev, *>, stem of flexible, technology-forcing
regulations, such as the creation of markets for envi-
ronmentally sound products or technologies, which
encourage technological innovation. Contains a brief
discussion on why the traditional view that environ-
mental regulation reduces GNP is based on faulty
assumptions. (Followed by a panel's critique.)
Barry G. Rabe, From Pollution Control to Pollution
Prevention: The Gradual Transformation of American
Environmental Regulatory Policy, 8 ENVTL. & PLAN. L.
J. 226(1991).
Discusses pollution prevention regulatory schemes de-
veloped in Massachusetts, Minnesota, and New Jersey,
which link pollution prevention with cross-media
National Pollution Prevention Center, University of Michigan
Annotated Bibliography • 3
August 1994
15
-------
regulatory integration, and critically examines federal
policy and potential innovations in pollution preven-
tion policy.
John H. Sheridan, Pollution Prevention Picks Up
Steam: Industry Supports Voluntary "Front-End"
Efforts, INDUSTRY WEEK, Feb. 17,1992, at 36.
•
Discusses use of pollution prevention as an industrial
waste management strategy. Contains case studies of
successful corporate pollution prevention programs by
AT&T, Dow Chemical, Navistar International Corpora-
tion, Northern Telecom, Mead Corporation, and 3M.
Briefly discusses eco-nomic benefits of corporate pollu-
tion prevention pro-grams. Calls for industry to vol-
untarily reduce pollu-tion before pollution prevention
becomes mandatory.
James Gustave Speth, EPA Must Help Lead an
Environmental Revolution in Technology, 21 ENVTL.
L 1424 (1991).
Emphasizes the conflicting goals of increasing environ-
mental quality and sustaining an increase in economic
activity; views the movement toward pollution pre-
vention as a part of the effort to rectify this conflict.
Discusses the need to overhaul environmental regulation
to promote long-term innovation, pollution prevention,
and more economic incentives for cleaner technologies.
Paulette L. Stenzel, Toxics Use Reduction Legisla-
tion: An Important 'Next Step' After Right to Know,
1991 UTAH L. REV. 707.
Analyzes and explains the basis for Toxic Use Reduction
(TUR) legislation, discusses the evolution and purposes
of Right To Know (RTK) legislation, and analyzes how
TUR incorporates and adds to the RTK goals. Questions
whether TUR laws should be federal or state. Proposes
recommendations for a model TUR law.
David G. Stephan & John Atcheson, The EPA's
Approach to Pollution Prevention, CHEM. & ENG'G
PROGRESS, June 1989, at 53.
Overview of EPA's strategy for integrating pollution
prevention into EPA programs. Lists elements needed
for a successful program, such as education, coordina-
tion within the EPA, and consensus building. Defines
waste minimization, source reduction and recycling.
Details EPA's Waste Management programs: WRITE
(technical assistance), WREAFS (demonstration/evalu-
ation programs), WRAP (waste minimization audits),
and WRISE (researcher/implementor liaison programs).
Includes table of state minimization programs.
Symposium, Corporate Environmentalism, 27 COL. J.
OF WORLD Bus., Fall/Winter (1992) (selected entries):
• Scott Barrett, Strategy and the Environment, 202.
Discusses strategic considerations for business in
a climate of heightened environmental concern.
Describes how compaines might gain a strategic
advantage through environmental innovation;
explains how firms such as DuPont and Henkel
of Germany profited in the face of environmental
regulations di. acted at pollutants they used or pro-
duced in their manufacturing processes.
• Norman E. Duncan, The Energy Dimensions of
Sustainable Development, 164.
Argues that business will have to play a lead role
in making the development catch-up process of non-
industrial economies sustainable. Gives particular
attention to the problem of controlling world.carbon
emissions.
• Hans W. Micklitz, The German Packaging Order:
A Model for State-Induced Waste Avoidance? 120.
Discusses the German experience with waste avoid-
ance through imposing a duty on industry and
retailers to take back packaging material. Touches
on concerns such as issues of .national sovereignty
and the role of nongovernmental organizations in
making waste a public concern.
• Richard Poduska, Richard Forbes & Maria Sober,
The Challenge of Sustainable Development:
Kodak's Response, 286.
Discusses Kodak's experience integrating envi-
ronmental concerns, including waste reduction
techniques, into its corporate operations.
• Robert Repetto, Environmental Taxes and U.S.
Competitiveness, 128.
Proposes a tax policy whereby the tax burden would
be shifted from economically productive activities,
such as work, savings, and investment, to unproduc-
tive activities, ;ncluding pollution and resource waste.
National Pollution Prevention Center. University of Michigan
Annotated Bibliography • 4
August 1994
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Symposium, Integrated Pollution Control, 22 ENVTL.
L 1 (1992) (selected entries):
• J. Clarence Davie, Some Thoughts on
Implementing Integration, 139.
Discusses how both external (i.e., across agencies)
and internal (i.e., within EPA) integration can be
realistically and usefully advanced and achieved.
Proposes using the existing statutory framework to
move pollution control efforts in a more integrated
direction via incremental steps, such as pollution
prevention, risk-based decision making, strategic
planning, data collection and monitoring, enforce-
ment, research, and use of TSCA.
• Guruswamy, Lakshman, Integrated Environmental
Control: The Expanding Matrix 77.
Argues that pollution caused by energy generation,
transportation, and use and global warming in par-
ticular must be addressed within the framework of
preventative integrated environmental control (IEC),
which he defines as a combination of pollution pre-
vention and modification of product demand. Dis-
cusses the shortcomings of the current fragmented
system of environmental control (e.g., focus on sep-
arate media, fragmented agencies, focus on effects
rather than cause). IEC accounts for both inputs
and final products with a view toward changing the
output of waste. Argues that IEC will result in more
informed, responsible energy decisions, such as the
use of renewable "soft" energy sources.
• Frances H. Irwin, An Integrated Framework for Pre-
venting Pollution and Protecting the Environment, 1.
Discusses the need for an integrated approach to
environmental problems, ways of achieving an inte-
grated framework, and technical tools' for pollution
prevention and the parti Jar programs/approaches
of different states and countries. Mentions obstacles
to as well as opportunities for achieving and imple-
menting integrated environmental policy.
• James E. Krier & Mark Brownstein, On Integrated
Pollution Control, 119.
Examines the new trend toward Integrated Pollution
Control (EPC) and its historical evolution. IPC is an
approach to environmental regulation that seeks to
link air, water, and waste programs. Its concern is
institutional changes that reduce total risk to the
environment from pollutants. Critiques EPA's IPC
strategy and questions whether IPC can work given
the EPA's current fragmented organizational struc-
ture and focus on risk assessment.
• Barry G. Rabe & Janet B. Zimmerman, Cross-
Media Environmental Integration in the Great
Lakes Basin, 253.
Examines key institutional and intellectual forces that
are facilitating environmental integration in the Great
Lakes basin. Discusses the establishment of basin-
wide prevention efforts and future developments in
integrated approaches to cross-media pollution. Pro-
vides an overview of legislative initiatives from the
states and organizations involved in the integrated
efforts. Criticizes basic flaws in current environmental
regulation. Concludes by examining impediments to
integration, such as political fragmentation at the fed-
eral level and regional lack of authority for environ-
mental problems. Calls for more integrated efforts
via pollution prevention, mass balancing accounting,
permit coordination, and agency reorganization.
• Manik Roy, Pollution Prevention, Organizational
Culture, and Social Learning, 189.
Discusses how the behavior of organizations involved
in environmental policy can be better understood in
terms of organizational culture. Uses four illustrative
case studies (two businesses, an environmental advo-
cacy group, and a state agency) to demonstrate how
organizational behavior is influenced by norms and
theories in action. Applies organizational culture
concepts to explain past business behaviors in re-
sponse to environmental policy (e.g., single-pipe
pollution focus). Specifically discusses how organiza-
tional culture relates to pollution prevention efforts.
States that government should encourage a change in
existing organizational culture through new programs
so that pollution control moves toward more com-
prehensive strategies such as pollution prevention.
Such programs can include whole family regulation,
pollution prevention planning, targeting chemicals,
readable regulations, employee and citizen right-to-
. know laws, and technical assistance.
• Strock, - James M., etal., Integrated Pollution
Prevention: Cal-EPA's Perspective, 311.
Describes California's move toward integrated multi-
media environmental policy. Its approach focuses
on pollution prevention, which can be accomplished
by (1) reducing production and use of hazardous
chemicals or (2) minimizing the generation of waste.
Discusses current, fragmented regulatory framework
and the associated structural problems. Discusses
outreach assistance, planning, and integrated permit-
ting, enforcement, and monitoring. Refers to two
cases: the Blackstone Project and the Amoco-EPA
project in Yorktown, Va.
National Pollution Prevention Center. University of Michigan
Annotated Bibliography • 5
August 1994
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BOOKS AND PAMPHLETS
BUSINESS AND ENVIRONMENT: TOWARDS COMMON GROUND
(Kent Gilbreath ed., 1984).
Contains a collection of brief articles discussing the
recent emergence of a growing partnership between
business and the environment. For example, in Industry's
Environmental Challenge: Prevention, J.T. Ling, author
and Vice President of Environmental Engineering at 3M,
outlines the evolution of society's views on environmen-
tal problems and stresses the importance of prevention
rather than clean-up. Sketches the history of the U.S.
approach to the environment since 1970 and then dis-
cusses 3M's 3P ("Pollution Prevention Pays") program.
Concludes that pollution control efforts should con-
tinue while more comprehensive pollution prevention
technologies are adopted.
FRANCES CAIRNCROSS, COSTING THE EARTH: THE CHALLENGE
FOR GOVERNMENTS, THE OPPORTUNITIES FOR BUSINESS (1991).
Encourages the 'intelligent' use of markets in environ-
mental policy. First half of the book examines the chal-
lenges that environmental policy poses for government,
such as concerns about resource conservation, energy
efficiency, and the allocation of environmental costs.
Second half looks at the implications of environmental
policy for companies, and addresses possible changes
in product types, production processes, and manage-
ment approaches. Devotes two chapters to the interna-
tional consequences of environmental policy, including
discussion about the role of industry in the global envi-
ronment, and the role of government in international
environmental management.
BARRY COMMONER, MAKING PEACE WITH THE PLANET (1992).
Analyzes present-day pollution concerns in terms of
"a clash between the ecosphere and the technosphere."
Discusses how these two spheres intereact and what
can be done to harmonize them. Criticizes pollution
control approaches as ineffective for achieving signifi-
cant, and sustainable, reductions in pollution levels,
and argues for a shift to pollution prevention measures.
Supports this argument with reference to successful
pollution prevention efforts for lead, mercury, DDT's,
and PCBf. Argues for public participation in the until-
now private decisions of production technology. Insists
that the technological basis for a transformation to eco-
logically sound systems of production is largely in hand.
CORPORATE STEWARDSHIP OF THE ENVIRONMENT
(Barbara H. Peters & James L. Peters eds., 1991).
Contains a collection of brief articles by different cor-
porations oh current environmental issues, including:
1. The Commitment to Corporate Environmental Excellence,
by Robert Kennedy (Union Carbide Corp.), which
discusses Union Carbide's belief that manufacturing
pollution can be cut by at least one-half.
2. Long-range Planning for Environmental Management,
by Sigvard Hoggren (AB Volva), which discusses
how customers will not tolerate unsafe production
if satisfactory alternatives exist. Gives examples of
customer-driven change and the incorporation of
environmental policy into long-term planning.
3. Involving the Community, which discusses how Dow
Chemical U.S.A. responded to community concerns
and environmental policy in its Louisiana Division.
4. Communicating Environmental Performance to Stake-
holders, by Harry Fatkin of Polaroid Corp., which
discusses how the "end-of-pipe" approach does not
work, and how Polaroid involves the community
and the shareholder in its environmental program.
Also discusses Polaroid's 1987 change of focus to
pollution prevention in conjunction with the tradi-
tional compliance approach. Discusses what pollu-
tion prevention and waste reduction can accomplish.
CORPORATIONS & THE ENVIRONMENT: How SHOULD DECI-
SIONS BE MADE? (David L. Brunner et al. eds., 1980).
Summarizes the Symposium on Corporate Environ-
mental Decision Making. Discusses three case studies:
"Bethlehem Steel Case: A Regulation Dilemma,"
"3M Co.: Creating Incentives," and "AMAX, Inc.:
A Corporation & the Public Interest."
ENVIRONMENTAL DEFENSE FUND, APPROACHES TO SOURCE
REDUCTION: PRACTICAL EVIDENCE FROM EXISTING POLICIES
AND PROGRAMS (June 1986).
Gives guidance as to practical action and contains
material from 21 states.
GETTING rr GREEN: CASE STUDIES IN CANADIAN
ENVIRONMENTAL REGULATION (G. Bruce Doern ed. 1990).
Argues that in the 1990's a market approach to environ-
mental problems will be far more crucial than it has
been. Chapter 1, "Regulation and Market Approaches,"
discusses different case studies. Gives a good over-
view and contains interesting case studies.
Na: c-a. Pouuiion Prevention Center. Umve-sity of M.cnigan
Annotated Bibliography • 6
August 1994
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JOEL S. HIRSCHHORN & KIRSTEN U.OLDENBURG, PROSPER-
ITY WITHOUT POLLUTION: THE PREVENTION STRATEGY FOR
INDUSTRY AND CONSUMERS (1991).
Very comprehensive source. Argues that achieving
effective unified action to prevent further pollution
requires public demand for a prevention strategy.
Emphasizes how the consumer needs to shift from being
a victim or a cause of environmental problems to being
part of the solution. Cites the shift of responsibility
from institutions to individuals as a key element of
the international green movement and the grass-roots
activism that has been growing in the U.S. Discusses
pollution prevention issues, such as green marketing
and source reduction, and the obstacles to achieving
pollution prevention goals.
INTEGRATED POLLUTION CONTROL IN EUROPE AND NORTH
AMERICA (Nigel Haigh & Frances Irwin eds., 1990).
Discusses integrated pollution control in North
America and Europe. Of particular interest are:
1. Terry Davies, The United States: Experiment and Frag-
mentation. Discusses the history of US. environmental
policy beginning with the creation of the EPA. Dis-
cusses the major forms of integration tried in the U.S.
and new perspectives on pollution control. Stresses
an integrated approach rather than pollution preven-
tion or source reduction.
2. Barry Rabe, Cross-Media. Innovation in the American
States. Argues that a system of integrated environ-
mental management must involve state government
if integration is to be achieved. Examines the history
of state environmental efforts. Discusses thoroughly
the integration institutions in Illinois and New York,
and the Great Lakes integration efforts.
MAKING POLLUTION PREVENTION PAY: ECOLOGY WITH
ECONOMY AS POLICY (Donald Huisingh & Vicki Baily
eds.,1982).
Contains papers from a symposium held in Winston-
Salem, N.C., in May, 1982. Relevant pieces include:
• Russell H. Susag, Pollution Prevention Pays:
The 3M Corporate Experience, 17.
Susag, Director of 3M Environmental Operations,
discusses the 3P Program, its benefits a"nd accom-
plishments.
• Dan Meyer, In Every Dark Cloud... 23.
Discusses Dow Coming's pollution prevention
approach and its focus on philosophy, procedure,
and performance.
• Carlisle Ford Runge, Positive Incentives for Pollu-
tion Control in North Carolina: A Policy Analysis, 115.
Proposes a "negative pollution tax" as a solution that
promotes economic development while maintaining
a high level of environmental quality. Examines
pollution from an economic point of view; discusses
negative externalities, non-market and positive mar-
ket incentives for reduction, and a negative pollution
tax proposal for reduction.
STEPHAN SCHMIDHEINY, CHANGING COURSE: A GLOBAL
BUSINESS PERSPECTIVE ON DEVELOPMENT AND THE
ENVIRONMENT (1992).
Calls for active business involvement in sustainable
forms of development. Argues for a market approach:
one that integrate command-and-control regulations,
economic instruments, and self-regulation. Describes
the roles capital markets and international trade will
play. Addresses issues related to managing corporate
change brought about by a move toward environmental
protection, with emphasis on technological innovation,
technology cooperation, sustainable management of re-
newable resources, and-the management of sustainable
development on developing countries. Devotes second
half of book to case studies addressing particular issues
in business management implicated by these changes.
R. SULLIVAN, FACILITY POLLUTION PREVENTION PLANNING: A
MATRIX OF THE PROVISIONS OF TWELVE STATE LAWS (1990).
Summarizes pollution prevention legislation of 12 states
in matrix form. Intended to provide a comparative
analysis of State facility pollution prevention laws to
act as models for States that are considering enactment
of State facility planning laws. Matrix divided by
specificity, enforceability, and funding. (Available
from Ohio EPA, P.O. Box 1049,1800 Watermark Drive,
Columbus, Ohio 43266-0149, 614/644-3020).
WASTE REDUCTION INSTITUTE FOR TRAINING AND APPLICATION
RESEARCH, INC., SURVEY AND SUMMARIES: STATE LEGISLA- •
TION RELATING TO POLLUTION PREVENTION (1992).
Outlines the evolution of national pollution prevention
programs, providing a historical perspective. Defines
terms, suggests applications, and provides both a legis-
lative and economic framework for developing pollu-
tion prevention programs. Focuses on Washington
State programs. Discusses controversy surrounding
definitions of terms such as "waste reduction," "pollu-
tion prevention," and "source reduction." (Available
from WRITAR, 1313 5th St. S.E., Minneapolis, MN,
55414-4502; 612/379-5996.)
National Pollution Prevention Center. University of Michigan
Annotated Bibliography • 7
August 1994
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GOVERNMENT DOCUMENTS
Reports and Hearings
H. REP. No. 101-555, 101st Cong., 2d Sess. (1990).
Recommends passage with amendments of H.R. 1457,
the Waste Reduction Act, to establish EPA programs to
encourage industries to reduce the generation of toxic
chemical wastes at manufacturing facilities and other
waste sources. Includes provisions to: (1) require EPA
to establish an office to develop and implement source
reduction activities; (2) to authorize EPA grants to
states for programs to promote industry voluntary use
of source reduction techniques, (3) provide technical
assistance for innovative waste reduction programs; and
(4) establish an EPA clearinghouse to compile and dis-
seminate information on source reduction technologies.
S. REP. No. 101-526,101st Cong., 2d Sess. (1990).
Recommends passage with amendment of S. 585, the
Pollution Prevention Act of 1990, which directs EPA to
implement strategies to prevent or reduce the genera-
tion, emission, or discharge of hazardous wastes and
other pollutants at their source. Includes provisions to
require EPA to: (1) establish an Office of Pollution Pre-
vention to coordinate source reduction programs; (2)
make matching grants to States for technical assistance
to business seeking information on source reduction;
and (3) establish a national clearinghouse on source
reduction techniques and technology transfer.
EPA, POLLUTION PREVENTION STRATEGY, 56 Fed. Reg.
7849 (Feb. 26, 1991).
Sets forth EPA's blueprint for a national, comprehen-
sive pollution prevention strategy. Strategy seeks to
incorporate pollution prevention into EPA's existing
programs. Defines pollution prevention. Provides
guidance to Headquarters and Regional Offices for inte-
grating pollution prevention into EPA's existing regu-
lations and programs. Sets forth a voluntary program
tor industry (33/50 Program) that sets forth specific
reduction target levels for 17 priority toxic pollutants.
(Available from the EPA's Pollution Prevention Informa-
tion Clearinghouse, Washington, D.C., 202-260-1023.)
EPA, POLLUTION PREVENTION 1991: PROGRESS ON REDUC-
,NO INDUSTRIAL POLLUTANTS (EPA/21P-3003) Oct. 1991.
Describes major public and private sector activities un-
dertaken in the pollution prevention field. (Available
tor 527 trom the EPA's Pollution Prevention Information
Uejnnphouse. Washington. D.C., 202-260-1023.)
EPA, PROPOSED POLLUTION PREVENTION POLICY
STATEMENT, 54 Fed. Reg. 3845 (Jan. 26, 1989).
Provides a statement of EPA's pollution prevention
policies, the steps the EPA has already taken, and de-
velopment of EPA's multi-media pollution prevention
program. Proposal encourages organizations, facilities,
and individuals to utilize source reduction techniques
in order to reduce environmental risks. Proposes cre-
ating a pollution prevention office within the EPA that
would provide educational, technical assistance, and
funding in order to build pollution prevention pro-
grams in the public and private sectors.
EPA, SPECIAL PROJECTS OFFICE, THE 33/50 PROGRAM:
FORGING AN ALLIANCE FOR POLLUTION PREVENTION (July
1991).
Discusses EPA's 33/50 Program, which asks companies
to voluntarily reduce their releases of 17 high priority
toxic chemicals 33% by 1992 and 50% by 1995. Defines
pollution prevention. Outlines 33/50 Program's goals
and objectives. Lists target chemicals. Addresses ad-
vantages of voluntary approach to pollution prevention
versus a mandatory one. (Available from the EPA's
Pollution Prevention Information Clearinghouse,
Washington, D.C., 202-260-1023.)
EPA, EPA's 33/50 PROGRAM, A,PROGRESS REPORT:
REDUCING RISKS THROUGH VOLUNTARY ACTION (July 1991).
Summary of EPA's 33/50 Program, which is a volun-
tary pollution prevention initiative aimed at achieving
overall national reductions of 17 high priority toxic
chemicals (33% by the end of 1992 and 50% by the end
of 1995). First in a series of reports that will document
the program. Tracks: (1) extent of industry participation
in and commitment to the 33/50 Program; (2) amount
of types of waste reduced; (3) the extent to which
waste reduction at the source — pollution prevention
— contributes to overall reductions. Lists companies
committed to Program as of June 1991.
EPA, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE,
WASTE MINIMIZATION: ENVIRONMENTAL QUALITY WITH
ECONOMIC BENEFITS (EPA/530/SW-90/044). April 1990.
Addresses the economic paybacks of a voluntary in-
dustrial waste minimization program. Discusses both
incentives and obstacles to voluntary adoption of a
program. Examines EPA's Report to Congress on Waste
Minimization, which concluded that a mandatory waste
minimization program was feasible at the time, and
examines whether existing incentives to encourage the
adoption of a voluntary program have been sufficient.
a! snai POi'uiton Prevention Center, University of Michigan
Annotated Bibliography • 8
August 1994
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Suggests ways for industry to set up a waste minimiza-
tion program. Lists State hazardous waste agencies
and waste exchanges. (Available by calling the RCRA
Hotline, 800/424-9346.)
POLLUTION PREVENTION, 1990: HEARING BEFORE .THE
SUBCOMM. ON ENVIRONMENTAL PROTECTION OF THE SENATE
COMM. ON ENVIRONMENT AND PUBLIC WORKS, 101st
Cong., 2dSess. (1990).
Hearing to examine strategies for preventing environ-
mental pollution, including initiatives to reduce source
generation of wastes and encourage recycling of waste
materials. Contains examples of federal and state.
pollution prevention programs and initiatives in the
Northeast, focusing on waste reduction and recycling
and discusses the roles of federal, state, and local
gov?rnments in pollution prevention.
SOLID WASTE REDUCTION, RECYCLING, POLLUTION
PREVENTION, 1990: HEARINGS BEFORE THE SUBCOMM.
ON NATIONAL RESOURCES, AGRICULTURAL RESEARCH, AND
ENVIRONMENT OF THE HOUSE COMM. ON SCIENCE AND
TECHNOLOGY, 101st Cong., 2d Sess. (1990).
Hearing to examine strategies and legislative proposals
for preventing environmental pollution, including
initiatives to reduce source generation of wastes and
encourage recycling of waste materials. Briefly con-
siders the following bills: (1) S. 932 to amend the Solid
Waste Disposal Act to establish EPA for solid waste
reduction and recycling; (2) H. R. 1457, the Waste
Reduction Act, to establish an EPA database on waste
reduction practices and to make grants to States for
innovative waste reduction programs; (3) H.R. 3693,
The Pollution Prevention Advancement Act, to estab- .
lish EPA program of coordinated research, demon-
strations, evaluations, and technology transfer of new
waste reduction technologies; and (4) H.R. 3735, the
Omnibus Reauthorization Bill, to amend the Solid
Waste Disposal Act to encourage reduction and
recycling of solid and hazardous waste.
WASTE MINIMIZATION AND POLLUTION PREVENTION, 1989:
HEARINGS BEFORE THE SUBCOMM. ON ENVIRONMENT LABOR
OF THE HOUSE COMM. ON SMALL BUSINESS, 101st Cong.,
1st Sess. 12(1989).
Hearing to review strategies to promote recycling
and other pollution prevention activities by industry,
including small business. Describes: (1) EPA pollution
prevention activities; (2) possibilities for small business
involvement in pollution prevention; and (3) implica-
tions for small business of regulatory and legislative
pollution prevention and control programs.
U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT,
SERIOUS REDUCTION OF HAZARDOUS WASTE: FOR
POLLUTION PREVENTION AND INDUSTRIAL EFFICIENCY (1986).
Examines definitions of hazardous waste, waste re-
duction, and waste reduction technology, and examines
a range of policy options aimed at waste reduction.
Discusses ways companies can promote waste reduction.
Concludes that current national policy does-not explicitly
address comprehensiveness or other possible Federal
activities that could help companies overcome site-
specific waste reduction impediments. Argues that
there is a need for a full policy debate on waste reduction
before specific regulatory actions are taken. Concludes
that nonregulatory approach should be initiated to
encourage companies to voluntarily reduce their
waste. (Available for $36.50 from National Technical
Information Service, Springfield, VA, 703/487-4650.)
U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT,
FROM POLLUTION TO PREVENTION: A PROGRESS REPORT
ON WASTE REDUCTION (1987).
OTA's follow-up to 1986 Report: Serious Reduction of
Hazardous Waste. Analyzes Congressional options to
reduce the generation of hazardous wastes and envi-
ronmental pollutants at the source (waste reduction).
Provides a comprehensive analysis of the EPA's
"Minimization of Hazardous Waste" (1986) and OTA's
"Serious Reduction of Hazardous Waste: For Pollution
Prevention and Industrial Efficiency" (1986). Compares
the two reports and provides Congress with new infor-
mation on waste reduction. (Available for $19.50 from
National Technical Information Service, Springfield,
VA, 703/487-4650.)
National Pollution Prevention Center. University of Michigan
Annotated Bibliography • 9
August 1994
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POLLUTION PREVENTION STATUTES
FEDERAL
Pollution Prevention Act of 1990,42 Pub. L. No.101-
508, §§6601-6610, 104 Stat. 1388 (codified at U.S.C.
§§ 13101-13109). Available from PPIC, 202-260-
1023.
STATE - Mandatory
Arizona: Ariz. Rev. Stat. Ann. §§ 49-961 to -73
(Supp. 1992).
California: Cal. Health & Safety Code §§ 25244.12
to .24 (West 1992).
Georgia: Ga. Code Ann §§ 12-8-60 to -83 (1992).
Louisiana: La. Rev. Stat. Ann. §§ 30.2291 to .2295
(West 1989 & Supp. 1992).
Maine: Me. Rev. Stat. Ann. tit. 38, §§ 2301 to 2312
(Supp. 1991).
Massachussetts: Mass. Ann. Laws ch. 211, §§1 to 23
(Law. Co-op. Supp. 1992).
Minnesota: Minn. Stat. Ann. §§115D.01 to .12
(West Supp. 1992).
Mississippi: Miss. Code Ann. §§ 49-31-1 to -27
(1991 & Supp. 1992).
New Jersey: N.J. Rev. Stat. §§ 13:1 D-35 to -50
(West 1991).
New York: N.Y. Envtl. Conserv. Law §§ 27-0900
to -925 (McKinney Supp. 1992).
Oregon: Or. Rev. Stat. §§ 465.003 to .037 (1991).
Tennessee: Tenn. Code Ann. §§ 68-212-301 to -312
(1992).
Texas: Tex. Health & Safety Code Ann. §§ 361.501
to.510(Vernon 1992).
Vermont: Vt. Stat. Ann. tit. 10, §§6623 to 6632
(Supp. 1992).
Washington: Wash. Rev. Code §§ 70.95C.010 to
.240 (Supp. 1992).
STATE - Voluntary
Alaska: Alaska Stat. §§ 46.06.021 to .041 (1991).
Colorado: Colo. Rev. Stat. §§ 25-16.5-101 to -110
(Supp. 1992).
Connecticut: Conn. Gen. Stat. Ann. Appendix
Pamphlet, P.A. 91-376 (West 1992).
Delaware: Del. Code Ann. tit. 7, §§ 7801 to 7805
(1991).
Florida: Fla. Stat. §§ 403.072 to .074 (1991).
Illinois: III. Ann. Stat. ch. 111 1/2,Tffl 7951 to 7957
(Smith-Hurd Supp. 1992).
Indiana: Irid. Code Ann. §§ 13-9-1 to -7
(West Supp. 1992).
Iowa: Iowa Code §§ 455B.516 to .518
(West Supp.-1992).
Kentucky: Ky. Rev. Stat. Ann. §§ 224.46-310 to -325
(Michie/Bobbs-Merrill 1991).
Rhode Island: R.I. Gen. Laws §§ 37-15.1-1 to .11
(1990).
South Carolina: S.C. Code Ann. §§ 68-46-301 to -312
(Law. Co-op Supp. 1990).
Wisconsin: Wis. Stat. Ann. §§ 144.955
(West Supp. 1991).
Original produced on Hammermill Unity DP,
a 50% post-consumer/50% pre-consumer recycled paper
made from de-inked old newspapers and magazines.
National Polltmon Prevention Center, University ol Michigan
Annotated Bibliography • 10
August 1994
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Pollution Prevention
and Business Law
NATIONAL POU.UTION PREVENTION CENTER FOR HIGHER EDUCATION
A Pollution Prevention Primer
for Law Teachers
Prepared by Holly Lynch
under the direction of Lynda ]. Oswald,
Assistant Professor'of Business Law, University of Michigan
Pollution prevention is a new alternative to traditional
media-specific environmental policy. Pollution preven-
tion is defined by the United States Environmental
Protection Agency (EPA) as "the use of materials,
processes, or practices that reduce or eliminate the
creation of pollutants or wastes. [It] includes practices
that reduce the use of hazardous materials, energy,
water or other resources ... through conservation or
more efficient use."1
Pollution prevention reduces pollution generation
at its source, reducing the need for treatment and
subsequent disposal of treatment by-products. Pollu-
tion prevention creates a cleaner environment because
reduced treatment and disposal result in less waste
entering environmental media (land, water, and air).
Pollution prevention also benefits industry because
reduced pollution generation means lower waste
disposal costs, decreased environmental liabilities,
an improved environmental public image, and more
efficient manufacturing operations.
Pollution prevention legislation has been enacted at
both the federal and state levels. On October 27,1990,
Congress passed the Pollution Prevention Act of 1990,2
which established pollution prevention as the nation's
primary pollution control strategy. The Act states that:
(1) pollution should be prevented or reduced at the
source whenever feasible;
(2) pollution that cannot be prevented or reduced
should be recycled;
(3) pollution that cannot be prevented or reduced
or recycled should be treated ...; and
(4) disposal or other release into the environment
should be employed only as a last resort.3
As of April 1,1991, a majority of states had passed
some form of pollution prevention law.4 Some of these
states require industry to develop facility-wide pollution
prevention plans,5 others simply declare that pollution
prevention is the preferred method for dealing with
hazardous waste.6
Despite the proliferation of federal and state pollution
prevention legislation in recent years, industry has not
widely adopted pollution prevention. Part I of this
paper examines the reasons for this frosty reception. It
begins by examining traditional environmental policy
and discusses the shortcomings of the current media-
specific regulatory scheme. Part n discusses pollution
prevention as an alternative to traditional media-
specific environmental policy. It analyzes the con-
troversy surrounding mandatory versus voluntary
planning in pollution prevention statutes. Part HI
presents pollution prevention's economic benefits/as
well as the institutional and attitudinal barriers that
thwart its wide-scale adoption. Part IV concludes by
providing examples of successful industry pollution
prevention programs.
U.S. EPA, Pub. No. EPA-21P-3003, POLLUTION PREVENTION 1991: PROGRESS ON REDUCING INDUSTRIAL POLLUTANTS 4 (Oct. 1991) (citation omitted)
42-U.S.C. §§13101-13109(1991).
See I'd. §13101(b).
U.S. EPA, supra note 1, at 72.
As of April, 1992, the following states require industry to develop pollution prevention plans: Arizona, California, Georgia, Louisiana, Maine,
Massachusetts, Minnesota, Mississippi, New Jersey, New York, Oregon, Tennessee, Texas, Vermont, and Washington. See WRITAR, STATE
LEGISLATION RELATING TO PoaunoN PREVENTION (April 1992).
Alaska, Colorado, Connecticut, Delaware, Florida. Illinois, Indiana, Iowa, Kentucky, North Carolina, Rhode Island, and Wisconsin have enacted pollution
prevention legislation that provides technical assistance and grants to encourage companies to voluntarily adopt pollution prevention programs. Id.
National Pollution Prevention Center for Higher Education • University of Michigan
Dana Building, 430 East University, Ann Arbor Ml 48109-1115
Phone: 313.764.1412 • Fax: 313.936.2195 • E-mail: nppc@umich.edu
May be reproduced
freely for non-commercial
educational purposes.
Primer for Law Teachers • 1
August 1994
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/. Traditional Environmental Policy:
Controlling Pollution After its Generation
A. Traditional Environmental Laws
Are Media-Specific
The EPA was established in 1970 to integrate protection
of public health and the environment.7 Programs from
four agencies* were consolidated to form the EPA.
Over the next 20 years, however, the EPA subdivided
into separate, independent bureaus, largely as a result
of the fragmented evolution of media-specific environ-
mental laws.9 These statutes were Congress' response
to discrete, publicized environmental disasters, such
as the toxic contamination of Love Canal.10 Because
media-wide problems were not politically visible,
they were overlooked.
The EPA is responsible for seven major environmental
laws," each of which protects a separate environmental
medium from a different set of pollutants by mandat-
ing specific regulatory tasks, separate reporting and
enforcement practices,12 and strict implementation
deadlines.13 Burdened by each law's regulatory
requirements and pressured by Congress and environ-
mental organizations for-their timely implementation,
the EPA divided into subagencies to meet each law's
respective requirements."
B. Media-Specific Laws Are Ineffective
at Reducing Environmental Pollution
Media-specific environmental laws regulate the
amount of pollutants that companies can discharge
into each environmental medium — air, water, or land.
They do not regulate the total amount of pollution
entering the overall environment through all sources.
Problems such as global climate change, ozone deple-
tion, and toxic contamination cross media boundaries
and thus cannot be solved in the traditional, media-
specific way.
1. Media-Specific Laws Increase Cross-Media
Pollution
Media-specific environmental laws have been referred
to as a toxic "shell game,"15 because they remove pollu-
tants from one environmental medium and shift them
to another for disposal. For example, the Clean Air Act
(CAA)16 sets discharge limits for various air pollutants.
To meet those limits, companies often install scrubbers
and similar air pollution control devices to filter out
the pollutants. Scrubbers concentrate pollutants in a
toxic ash that is generally disposed of in a landfill.17
All waste treatment, whether wastewater treatment, in-
cineration, or landfilling, is likely to increase cross-media
pollution. Despite more than 20 years of regulation,
data show that the volume and hazards of toxic chemi-
cal releases into the environment continue to grow as
the nation creates and uses more toxic chemicals.18
2. Media-Specific Laws Are Not Comprehensive
Media-specific environmental laws emerged in re-
sponse to specific environmental problems, and
Congress has been lax in amending legislation to
reflect advances in scientific knowledge. For example,
when the Clean Water Act (CWA)19 was enacted,
industrial and municipal point sources were seen as
the major causes of water pollution; thus, they were
' David Clarke, Chasing Rainbows: Is an Integrated Statute the Pot of Gold for Environmental Policy?, 22 Bum. L 281,284 (1992).
• Those agencies were the Departments of Agriculture, Interior, and Health, Education, and Welfare, and the Atomic Energy Commision.
• See o g The Federal Insecticide, Fungicide and Rodenticide Act. 7 U.S.C. §§ 136-136y (1989); The Federal Water Pollution Control Act
(commonly known as the Clean Water Act), 33 U.S.C. §§ 1251-1376 (1988); The Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26 (1989);
The Resourca Conservation and Recovery Act of 1976,42 U.S.C. §§ 6901-6992k (1991); the Comprehensive Environmental Response,
Compensation and Liability Act of 1980,42 U.S.C. §§ 9601-9675 (1989); the Marine Protection, Research and Sanctuaries Act of 1972,
33 U.S.C. §§ 1401-1445 (1989); and the Clean Air Act, 42 U.S.C. § 7401-7661f (1990).
* Sea generally MICHAEL BROWN. LAYING WASTE: THE POISONING OF AMERICA BY Toxic CHEMICALS (1980) (describing extensive problems
caused by chemicals dumped in Love Canal in Niagara Falls, New York).
" Soa supra note 9.
" Frances Irwin, An Integrated Framework fro Preventing Pollution and Protecting the Environment, 22 ENVTL. L. 1,11 (1992).
u Clatke. supra note 7, at 285.
" W. at 285-86,
14 G. LaBac, Reducing the Flow, OCCUPATIONAL HAZARD, Nov. 1990, at 32, 35.
« 42 U.S.C. §§7401-76611 (1990).
" Stephen Johnson. From Reaction to Proaction: The 1990 Pollution Prevention Act, 17 COLUM. J. ENVTL. L. 153,154 n. 5 (1992).
« W at 156. .
* Section 319 of the Clean Water Act attempts to include agricultural run-off in its regulatory scheme. However, it only requires states
to prepare plans to control nonpoint sources of water pollution; it does not mandate their control. See 33 U.S.C. § 1329.
Primer for Law Teachers • 2
August 1994
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the CWA's primary targets for regulation. Non-point
source pollution, such as agricultural runoff (which
contains herbicides, pesticides, and fertilizer), was
not perceived as a threat to the nation's waters and
therefore was exempt. It is now known to be a major
contributor to water quality degradation,20 yet it is
subject to minimal regulation.
3. Media-Specific Laws Are Reactive
Media-specific laws regulate only the amount of
pollution that companies can discharge into specific
environmental media. By focusing on pollution after
its generation, they fail to address a major cause of
environmental problems: our society produces too
much waste.
C. Media-Specific Laws Are Inefficient
1. Media-Specific Laws May Necessitate
Superfluous Treatment
By encouraging waste management practices that
transfer pollutants between environmental media,
media-specific environmental laws may result in
double, or even triple, treatment of pollutants. For
example, sludge from scrubbers can be disposed into
a river or piped into a lagoon to dry and then inciner-
ated or landfilled. Prior to its eventual disposal, how-
ever, this sludge may require additional treatment
because water and solid waste disposal laws21 may
mandate further treatment.22 If the sludge is landfilled,
it may leach into the groundwater, requiring further
cleanup.
2. Media-Specific Laws Are Costly, Burdensome
Media-specific laws have also created a huge, costly
bureaucracy. Each of the seven major laws23 regulating
waste discharges into the environment contains sepa-
rate regulation, reporting, and enforcement provisions.
Environmental regulations currently occupy more than
10,000 pages of the Code of Federal Regulations. Com-
panies are increasingly hiring full-time environmental
managers to monitor environmental compliance.24
According to EPA estimates, the total cost (measured
in 1986 dollars) of implementing environmental man-
dates increased from $27 billion in 1972 to $85 billion
in 1987* •
The Administrator of the EPA, recognizing the defi-
ciencies of a media-specific approach, has reorganized
enforcement activities from media-specific offices to
one main enforcement office.
D. Media-Specific Laws Encourage
Industry Conservatism
1. Media-Specific Laws Focus On End-Of-Pipe
Controls and Encourage Industry Dependence
on Treatment
Media-specific laws, such as the CWA and the CAA,
set end-of-pipe26 discharge limits in specific environ-
mental media and encourage companies to apply
treatment technology27 to achieve those limits. Compa-
nies have reacted to these laws by investing hundreds
of millions of dollars in treatment technologies rather
than exploring pollution prevention alternatives.28 As
a result, many companies believe that treatment is the
only way to ensure environmental compliance.
The largest remaining source of water quality impairment is runoff from farms, cities, forests, and construction sites. EPA estimates that non-point
sources are responsible for 60% of current water quality standard violations and that agricultural sources contribute 80% of that total. See Claudia
Copeland, Comprehensive Clean Air and Clean Water Permits: Is the Glass Still Just Half Full?, 21 ENVTL. L 2135, 2169 (1991).
See 42 U.S.C. § 6924 (RCRA restrictions regarding the land disposal of hazardous wastes).
Lakshman Guruswamy, Integrated Environmental Control: The Expanding Matrix, 22 ENVTL. L. 77, 87 (1992).
See supra note 9.
E. Harrison, Plowing New Ground in Environmental Affairs, PUBLIC RELATIONS J., April 1991, at 32.
Clarke supra note 7 at 289 (citing OFFICE OF POLICY PLANNING AND EVALUATION, U.S. EPA, COST OF A CLEAN ENVIRONMENT (1990)).
•End-of-pipe" controls include end-of-stack controls. Both terms refer to pollution control methods that focus on controlling a pollution stream after it has
been generated and at the point where the stream leaves the industrial facility and enters the environment, i.e., at the end of the discharge pipe for water
discharges or at the end of the smoke stack for air emissions. .
For example, the Clean Water Act requires companies that discharge pollutants into navigable waters to implement increasingly better technology (initially
•best conventional control technology, then 'best available control technology") to achieve its discharge limits. 33 U.S.C. § 1314(b).
Johnson, supra note 17. at 155.
Primer for Law Teachers • 3
August 1994
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2. Media-Specific Laws Discourage Adoption of
Innovative Waste Practices
Media-specific laws also inhibit the adoption of
innovative waste practices such as pollution preven-
tion," Typically, these laws have discharge limits that
designate a certain level of pollution generation as
"legal"30; the laws provide no incentives for companies
to reduce their pollution beyond that authorized
amount,31 Thus, laws reinforce traditional waste
management practices.
Many companies believe that adopting innovative
pollution control methods, such as pollution preven-
tion, will cost them money. Some fear that pollution
prevention may increase their operating costs, putting
them at a competitive disadvantage.32 Others fear that
once pollution prevention methods are adopted for
particular industries, they will be required by the
government even though they may be more expensive
than current pollution control methods.33
//. Pollution Prevention:
Redacting Pollution at its Source
Pollution prevention is based on the idea that reducing
the amount of pollution generated is economically
and environmentally preferable to controlling it after
generation.34 Pollution prevention's main goal is to
reduce or eliminate the use and release of hazardous
substances across all environmental media — land,
water, and air.
A. Pollution Prevention Defined
1. Waste Minimization
Initially, pollution prevention was understood to mean
waste minimization.35 Waste minimization is defined as
any source reduction or recycling activity undertaken
by a generator that results in either: (I) a reduction in
total volume of hazardous waste; or (2) a reduction in
quantity or toxicity of hazardous waste that is either
generated or subsequently treated, stored, or disposed.36
This definition of pollution prevention was controver-
sial, however, because technically it could encompass
treatment and off-site recycling. Although treatment
and off-site recycling can reduce waste's toxicity and
volume, they clo not necessarily result in less waste en-
tering the environment because both methods generate
waste residuals that ultimately require disposal.
2. Source Reduction
Because of the controversy surrounding waste minimiza-
tion, pollution prevention was subsequently defined to
include only source reduction, thus excluding treatment
and off-site recycling.37 Source reduction is defined as
any practice which: (i) reduces the amount of any haz-
ardous substance, pollutant, or contaminant entering any
waste stream or otherwise released into the environ-
ment (including fugitive emissions) prior to recycling,
treatment, or disposal; and (ii) reduces the hazards to
public health and the environment associated with the
release of such substances, pollutants, or contaminants.38
Toxic chemical use substitution is a form of source reduc-
tion that occurs when toxic chemicals are replaced by
less harmful chemicals in industrial processes.39
w Lots Ember, Strategies lor Reducing Pollution at the Source are Gaining Ground, CHEM & ENG'G News, July 8,1991, at 7, 8.
* Johnson, supra note 17, at 154.
11 By establishing a market-based trading scheme for certain acid rain pollutants, The Clean Air Act Amendments, 42 U.S.C. §§ 7661-7661f (1991)
{enacted Nov. 15,1990), attempt to encourage voluntary reductions in air discharges. See id. § 7651b. For a discussion of the market-based
approach of Title IV, see generally Norman Fichthorn, Command and Control vs. The Market: The Potential Effects of Other Clean Air Act
Recunrements on Acid Rain Compliance, 21 ENvn..L2021 (1991).
n Copeland, supra note 20, at 2171.
n Atan Miller, Cleaning the Air YJhile Filling Corporate Coffers: Technology Forcing and Economic Growth, 1990 ANN. SURV. AM. L 69, 78.
54 Johnson, supm note 17, at 153.
* Waste minimization was first proposed as a pollution control method in the Hazardous and Solid Waste Amendments of 1984 (HSWA), PUB. 1.
No. 93-616 (codified as amended in scattered sections of 42 U.S.C.).
v U S. CoNGsess. OFFICE OF TECHNOLOGY ASSESSMEOT, SERIOUS REDUCTION OF HAZARDOUS WASTE: FOR POLLUTION PREVENTION AND INDUSTRIAL EFFICIENCY 160
f1986| (citation omitted). . :
*' Although pollution prevention is not defined in the Pollution Prevention Act of 1990, the Act's definition of source reduction makes it clear that
treatment and off-site recycling are not intended to be pollution prevention techniques. 42 U.S.C. § 13102(5),
* Pollution Prevention Act of 1990. 42 U.S.C. § 13102(5)(A).
* U.S. EPA. supra note 1. at 7.
Primer for Law Teachers • 4
August 1994
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B. Pollution Prevention Techniques
Pollution prevention techniques reduce the volume
and toxicity of pollution generated by encouraging
changes in materials selection, product design, and
manufacturing processes.40 Five techniques are used
to reduce hazardous waste generation in industrial
operations:
1) equipment or technology modifications, such
as equipment modernization, to ensure clean,
efficient operation;
2) process or procedure modifications, such as
materials reuse within a manufacturing process;
3) reformulation or redesign of products, such as
eliminating the need for toxic chemicals in a
manufacturing process;
substitution of raw materials, such as substitution
4)
of nontoxic chemicals for toxic chemicals (toxic
chemical use substitution); and
5) improvements in housekeeping, maintenance,
training, or inventory controls, such as preventative
equipment maintenance, that produce more effi-
cient operations and improved materials handling.41
C. Federal Pollution Prevention Policy
1. The Hazardous and Solid Waste
Amendments of 1984
Federal pollution prevention legislation first emerged
in 1984 when the Hazardous arid Solid Waste Amend-
ments (HSWA) were enacted.42 The amendments
created a "land.ban," which restricted the disposal of
certain hazardous'materials. The land ban indirectly
encouraged pollution prevention by increasing the
cost of hazardous waste disposal.43 HSWA also added
Section 3002(a) to the Resource Conservation and Re-
covery Act (RCRA).44 This section requires hazardous
waste generators who ship waste off-site to certify:
(1) that they have a hazardous waste minimization .
program in place to reduce the volume and toxicity of
their waste "to the degree determined by the generator
to b'e economically practicable;" and (2) that the pro-
posed method of treatment, storage, or disposal of their
waste is that practicable method currently available to
the generator "which minimizes the present and future
threat to human health and the environment."45 HSWA
also requires hazardous waste generators to file biennial
reports stating the efforts they have made to reduce the
volume or toxicity of hazardous waste generated and
the changes in volume or toxicity actually achieved.46
HSWA's pollution prevention initiatives, although in-
novative, did not successfully encourage industry to
adopt pollution prevention. HSWA did not impose af-
firmative duties on hazardous waste generators to com-
mit to specific degrees of pollution reduction or use
specific pollution prevention techniques.47 In addition,
compliance with the certification requirements was dis-
cretionary, because the generator determined what was
"economically practicable" without EPA review.48
2. The Pollution Prevention Act of 1990
EPA's most aggressive pollution prevention initiative
was the Pollution Prevention Act of 1990. The Act
established:
• A pollution prevention hierarchy which declared
pollution prevention to be the nation's primary
strategy for dealing with pollution.
• A Pollution Prevention Office, located within the
EPA and independent of the media-specific pro-
grams, to develop and implement a strategy to
promote source reduction.
• A grant program which enables states to obtain EPA
matching grants for providing source reduction
technical assistance tOwbusinesses.
• A Source Reduction Clearinghouse to compile infor-
mation on source reduction and make it available to
the public.
40 Irwin, supra note 12, at 15.
41 Pollution Prevention Act of 1990. 42 U.S.C. § 13102(5)(A). See also Johnson, supra note 17, at 157.
42 Pue. L No. 98-616 (codified as amended in scattered sections of 42 U.S.C.).
43 Hazardous waste treatment and disposal costs have risen as much as 300% over the past decade because of RCRA's ban on land
disposal of hazardous waste, minimum technology requirements for hazardous waste units, and limited treatment and disposal capacity.
U.S. EPA, Pollution Prevention Strategy, 56 Fed. Reg. 7849, 7853 (Feb 26.1991) [hereinafter Strategy]
" 42 U.S.C. §§6901-6992k (1991).
'5 W. §6922(b). '
46 Id. § 6922(a)(6)(C)-(0).
4' Johnson, supra note 17, at 168.
48 Id. at 167-68. . ; .
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August 1994
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The Pollution Prevention Act's main objective is to
encourage industry to voluntarily adopt pollution pre-
vention programs. The Act also contains mandatory
source reduction reporting requirements. For example,
Section 7 requires each owner and operator of a facility
that is required to file a toxic chemical release form
under Title HI of the Superfund Amendments and Re-
authorization Act of 1986 (SARA)49 to report information
regarding the source reduction and recycling activities it
has undertaken in the previous year for each such toxic
chemical.50 The EPA makes this information available
to the public through the Pollution Prevention Informa-
tion Clearinghouse (202-260-1023). This public notifica-
tion procedure is intended to pressure companies into
voluntarily adopting pollution prevention measures.
3. EPA's Pollution Prevention Strategy
The EPA has established new pollution prevention ini-
tiatives since the Pollution Prevention Act's enactment.
On February 26,1991, the EPA published its Pollution
Prevention Strategy, which is a "blueprint" for imple-
menting the Act.51 Like the Pollution Prevention Act,
the Strategy focuses is on encouraging industry to
voluntarily adopt pollution prevention measures. For
example, the Strategy introduced the Industrial Toxics
Program (33/50 Program) that attempts to commit
companies to voluntarily reduce their emissions of 15
to 20 toxic chemicals by 33% by the end of 1992 and 50%
by the end of 1995.52 The Strategy indicates that the
EPA intends to integrate pollution prevention into its
media-specific programs through techniques such as:
• incorporating pollution prevention into administra-
tive and civil settlements;53
• allowing "credit" for early reductions of toxic air
emissions under the CAA;54
• promoting cost-effective alternatives to conventional
treatment alternatives in negotiated or reissued
permits;55
• using regulatory flexibility to encourage pollution
prevention's adoption, such as streamlining the regu-
latory and administrative procedures for testing and
applying pollution prevention technologies;56 and
• examining the federal procurement process so that
product specifications foster products and processes
that incorporate pollution prevention.57
The Pollution Prevention Office will also work with
EPA's media-specific offices to coordinate a review of
existing statutes, regulations, guidances, and policies
to determine whether the programs encourage pol-
lution prevention. The Office intends to substitute
programmatic and regulatory incentives in their place
when appropriate.58
D. State Pollution Prevention Policy
A majority of states currently have some form of pol-
lution prevention legislation in place.59 Many of these
programs are voluntary and provide only technical as-
sistance and grants. Other programs, however, require
companies to conduct pollution prevention planning.
1. Voluntary Pollution Prevention Programs
Connecticut's Environmental Assistance to Business
Act,60 enacted in 1991, is typical of most state pollution
prevention programs. Its goal is to "establish the
practice of pollution prevention" as state policy.61
rt 42 U.S.C. §§ 11001-11050 (1992). Toxic chemical release forms are required by § 11023.
*» 42 US,C.§ 13106.
» Aso|flNovemoerJ992, participation had risen to over 1,000 companies, including Amoco Chemical, Bayer, BASF, Dow Chemical, DuPont,
Monsanto. Occidental Chemical, and Union Carbide. U.S. EPA, POLLUTION PREVENTION NEWS, at 5, Jan.-Feb., 1993. mmnltml to
» For example on August 7,1990, a consent order was approved in a TSCA administrative enforcement action which required the respondent company to
pay a S30 000 civil penalty and implement a pollution prevention program. The company agreed to purchase and install a solvent recycling system at its
manufactu'nng lacrtity that is intended to reduce more than 50% of its emissions of an unregulated ozone-depleting substance and a probable carcinogen
Tht company further agreed to implement a leak detection program for tracking fugitive emissions of these two solvents. Strategy, supra note 43, at 7860.
« Industrial sources can obiam a six-year extension from compliance with Maximum Achievable Control Technology standards under the Clean Air Act
rf they; (1) achieve reductions of 90-95% below a baseline year before such standards are proposed, cr (2) enter into enforceable commitments to
achieve such reductions by January 1.1994. Id. at 7859.
u W.
» M
*' David Stephen & John Atcheson. The EPA's Approach to Pollution Prevention, CHEM. ENG'G PROGRESS, June 1989, at 53, 55.
» W
s* See WRITAR, supra note 5,
« Cow. GEN. STAT, ANN, Aw, Pamphlet, P.A. 91-376 (1992).
41 WRITAR. st^ya note 5, ai 10. :—
~" " ~ ; Primer for Law Teachers • 6
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To that end, the Act establishes an Envirorimefital
Business Assistance Program to provide businesses
with technical assistance in pollution prevention. It
also establishes an Environmental Assistance Revolving
Loan Fund that will provide loans to businesses inter-
ested in adopting pollution prevention.62 However, the
Act does not contain mandatory pollution prevention
planning requirements, and, like the federal Pollution
Prevention Act, it encourages companies to adopt pol-
lution prevention only by providing grant money and
technical assistance.
2. Mandatory Pollution Prevention Programs
In addition to establishing technical assistance and
grant programs,63 other states have, enacted aggressive
pollution prevention statutes that mandate facility-wide
pollution prevention planning or set specific state-wide
source reduction goals. Some of these programs are
described below. , . > • - •• .
Washington
f -
Washington has one of the most aggressive state pollu-
tion prevention statutes.64 Large-quantity hazardous
waste generators and users were required to prepare
a plan by September 1,1992, for voluntarily reducing
their hazardous waste generation and hazardous sub-
stance use.65 The plans were to contain a number of ;
items, including:
• a description and analysis of current reduction
, techniques;
• options to be implemented;
« specific performance goals for the reduction or elimi-
nation of hazardous substance use and generation;
' • documentation of current or completed reduction
practices; and
• a summary of further reduction or treatment oppor-
tunities and impediments to their implementation.6*
These plans must be updated every five years and pro-
gress reports must be filed each year.67 The Washington
- Department of Ecology (DOE) may review the plans
for compliance and impose penalties if they are defi-
cient.68 Washington's statute is noteworthy because it
allows any ten people living within ten miles of a haz-
ardous user or generator to petition the DOE to review
the adequacy of a facility's plan.69 The Act also provides
businesses with technical assistance.70
Oregon also requires all toxics users to develop facility-
wide pollution prevention plans and file annual reports.71
Its statute requires companies to examine their hazard-
ous substance usage and hazardous waste generation,
and identify opportunities for pollution prevention.72
A company must also develop a schedule for imple^
menting waste reduction options and set specific per-
formance goals for hazardous, waste reduction and use.73
After plans are submitted/companies are required to
file annual reports, documenting their progress toward
each performance goal.74 The Oregon Department of
Environmental Quality may review the plans and
progress reports for adequacy, order a schedule for
compliance, and convene a public hearing if the plans
are insufficient.75 The Act also provides businesses
with technical assistance.76
62 Id.
As of April, 1992, fifteen states had enacted mandatory pollution prevention statutes that required facility pollution prevention planning. ,
See supra note 5 (listing states). • • • • ' .„,., • .
Hazardous Waste and Substance Reduction Act, WASH. REV. CoDE§70.95C.010-.240 (1992) (effective March 21,1990). .
WRITAR, supra note 5, at 67-68. . . . ' . / •'",."
id.at68.' .-''•-.-•'•. " . •• "~ ..,.••'.• . ' .;
Id.at69. ••'''.-. . ' ...
•Id. : .'•'•• •>. • ' ••'. '
Id. , •'.-., ••' * -' ' • ,
Toxics Use Reduction and Hazardous Waste,Reduction Act, OB. REV: STAT. §§ 465.003 to,.037'(1991). See genera///Fred Hansen, ' . ..
Pollution Prevention Planning: A New Mandate for Oregon's Environment, ENm.. FORUM, SeptVOct. 1989, at 30.' •- '
'WRITAR.. supra note 5, at .50. .. , . ,, ' "
Id. ' • • '' . .. ' . .'- . .".'.-'_•. ' .- -. • *. . . ;
w- • ; ' ' . ••••' - . ' •• - .'•:',
W.at51. . . ' ...
id. ; . . ' . , . ••' ." . . ••-..••-.','.*
; '~~~ ~~ '- ~ ••, Primer for Law Teachers • 7
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Massachusetts
The Massachusetts' Toxics Use Reduction Act,77 requires
large-quantity toxics users to report their toxic sub-
stances use and to develop a toxics use reduction plan.78
The statute sets a state-wide goal of fifty percent reduc-
tion in toxic waste generation by 1997.79 Companies are
required to plan their toxics use reduction by 1994.80
Like the Washington legislation, the Massachusetts'
statute allows any 10 residents living within 10 miles
of a facility to petition for a review of facility's toxics
use reduction plan.
New Jersey
New Jersey's Pollution Prevention Act also established
a state-wide goal of 50 percent reduction in hazardous
substance use, hazardous substance discharges into the
air and water, and hazardous waste generation over
five years." The Act creates an Office of Pollution
Prevention in the State Department of Environmental
Protection to administer the Act. The Act is unique
because it plans to integrate air pollution, water pol-
lution, and hazardous waste management programs
by linking facility pollution prevention planning with
integrated, cross-media permitting.82
\ "' f, • • ,' " ' ',
E. Arguments For and Against Mandatory
Pollution Prevention Programs
Differences among various statutes reflect disagree-
ments over specific content of pollution prevention
legislation. The greatest controversy, however,
concerns the issue of whether pollution prevention's
adoption should be mandatory, as in Washington, or
whether it should remain voluntary, as in the federal
Pollution Prevention Act
•. ,, , • " • • , i • •.
1. Arguments Against Such Statutes
Opponents of mandatory pollution prevention statutes
argue that ignorance is the greatest barrier to pollution
prevention's adoption and once industry learns about
pollution prevention's economic benefits, it will •'
voluntarily adopt pollution prevention on a wide
scale.84 In their view, pollution prevention statutes
should focus on educating industry about pollution
prevention's economic benefits through technical
assistance and grant money.
These opponents insist that pollution prevention stat-
utes should not mandate adoption of pollution preven-
tion, arguing that mandatory pollution programs will:
• enable the government to dictate industrial pro-
duction decisions that should be left to industry;
• allow government regulators, who may lack technical
expertise, to prescribe specific pollution prevention
• techniques for specific companies, significantly
curtailing industry's waste management options;
• allow competitors to access trade secret information
because agency files and enforcement proceedings
may be subject to public review;85
• be burdensome and expensive for both industry and
the government because of compliance and enforce-
ment,-86
• further impair the poor relationship that currently
exists between industry and government environ-
mental agencies, resulting in more resentment and
less cooperation; and
• postpone pollution prevention's wide-scale adoption
• because companies will wait to adopt pollution
prevention until mandatory statutes are enacted.87
•2. Arguments for Such Statutes
Proponents of mandatory statutes argue mat educating
industry about pollution prevention's economic benefits
is not sufficient because the institutional and attitudinal
barriers that thwart pollution prevention's wide-scale
adoption can only be overcome through mandatory
pollution prevention requirements. In this view,
mandatory statutes promote wide-scale adoption by
" MASS, ANN. LAWS. Ch. 211, §§1-23 (Law. Co-op Supp. 1992). '
» WRITAR,supranole5,at31.
" W.aJSO, •
« w.atai.
•> liJ. STAT, §§ 13:10-35 to -50 (West 1991). See generally WRITAR, supra note 5, at 39.
0 WRITAR, supra note 5, at 40-42.
H For a good discussion of the debate concerning mandatory versus voluntary pollution prevention programs, see Johnson, supra note 17, at 182-89.
M Sta id. at 183,
* Id. at 193, ,
f Sitptian & Atcheson, supra note 57, at 53.
•' Id " ''.'.' '
Primer for Law Teachers • 8
August 1994-
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. requiring all_similarly-situated companies to explore
pollution prevention simultaneously88 and forcing most
• companies to adopt some form of pollution prevention.
Proponents claim that mandatory programs would ,not
force companies to adopt specific production changes.
Rather,-they argue that mandatory statutes would only
. force companies to consider pollution prevention alter-
natives. Individual companies would be free to choose
the specific pollution prevention techniques adopted.
Proponents also argue that statutes could include safe-
guards that protect companies' trade.secrets from dis-
closure to their competitors. For example, all pollution
• prevention plans that contain sensitive proprietary
information could remain on file at the company, not
at the government agency and, therefore, out of the .
public domain.'
Proponents of mandatory pollution prevention statutes
also argue that companies do not take voluntary pollu-
tion prevention statutes seriously. Proponents claim
voluntary statutes fail to give companies the incentive •
, • or impetus to adopt or even consider pollution pre-
vention alternatives. Because voluntary statutes lack
"teeth," they indirectly reinforce continued reliance on
the pollution control techniques imposed on companies
by traditional media-specific environmental statutes. .
///. Pollution Prevention:
Benefits and Barriers
The decision to adopt a corporate pollution prevention
program remains voluntary under federal and most
state legislation. Why should a company voluntarily
adopt pollution prevention?
A. Pollution Prevention Benefits
1. Reduced Disposal and Regulation Costs
Pollution prevention proponents claim that the greatest
incentive for adopting pollution prevention is the high
cost of waste disposal.89 Land disposal, which once
cost,as little as $10 per tori, has increased to $240 per
. ton.90 Companies that prevent pollution at the source
can avoid increased waste handling, shipping, and
disposal costs as well as the burden of complying with
the increasingly complex array of confusing and often
conflicting environmental regulations.
2. Reduced Environmental Liabilities
Pollution prevention minimizes a company's potential
environmental liability because reduced waste genera-
tion means less waste is transported, treated, stored or
disposed, decreasing the risk of botched disposal and
resultant civil and criminal liability.91
3. Improved Environmental Image
Proponents claim that pollution prevention can
improve a company's environmental image with an
'American public that is increasingly becoming aware
of companies' environmental records or products'
environmental impacts.92 Companies are subject to
public scrutiny, and environmental "blacklisting" can
significantly affect their sales.93 Pollution prevention
also may enable a company to deflect public criticism
should future environmental problems arise.94
4. Improved Operating Efficiency
Pollution prevention techniques, by focusing on
production processes, materials use, and maintenance ;
changes to reduce the volume or toxicity'of pollution,
that is generated, 'often result in a more efficient use
M Gail Achterman, Strategies lor Minimizing Hazardous Wastes In Oregon, 18ENm. L 901, 907 (1988);. Johri'Hodges-Copple,
The-Economic Advantages of Preventing Pollution. BUS &ECON. REV., July-Sept. 1990, at 38. • • ', '
99 LaBar, supra note 15, at 33.; ..-•'_ . ' • ''...- . .. .'
80 .U.S. EPA, WASTE MINIMIZATION: ENVIRONMENTAL.QUALITY wrm 'ECONOMIC BENEFITS, April 1990, at 3. . • . .
" See Johnson, supra note 17, at 160: W. Clearwater & J. Scanlon, Legal Incentives'(or Minimizing Waste, 10 ENVTL. PROGRESS, Aug..1991, at 169.
K Gallup surveys conclude that more than 75% of U.S. consumers include environmentalist in their shopping decisions. Art Kleiner,
What Does it Mean to Be Green'?, Har.Bus. Rev., July-Aug. 1991, at'38,'39. A-July 1989 poll taken for the Michael Peters Group,
' the world's largest design firm, found -that 89% of Americans are concerned about trie.impact on the environment of the products they
purchase, 53%. declined to buy a product over the past year out of concern for' the effects the product or its packaging rrught have on the .
environment, and nearly 80% are willing to pay more for a product that is packaged with recyclable or biodegradable materials. J. .Schorsch,
Are Companies Playing Clean With Green?. Bus. & Soc. REV., Fall 1990, at6, 8. - . ','.,.'..' '' '
M See G. LaBar. Totaling Up the Toxics, OCCUPATIONAL HAZARbs.July 1991..at 27,.31-32. ". ' ". • ,'".:••
* See Johnson, sup'ra note 17, at 161. ' • .. "...•'.• .
Primer for Law Teachers • 9
• August 1994
. 3i
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„' , if . . • " , •! .. ' •
of raiv materials and reduced operating expenses for
handling, shipping, and disposal.'5 More efficient
production processes can make companies more
cOJrnpetitive in both domestic and global markets.9*
"•" : '" :l '•' ' ;'i,!l '• : i • '• .' I" / "'•';' '' .'•'•''' '' •
B. Barriers to Adoption of Pollution
Prevention
Institutional and attitudinal barriers have resulted in
only five percent of American companies voluntarily
adopting pollution prevention programs to date.97
1. Current Environmental Policy
; . .' , "• _ i""!* " '. '. ,• / .-
Media-specific laws roster a "single-pipe culture"98 that
encourages companies to segregate their environmental
activities from their production activities. Compliance
staff are often assigned to separate environmental media
to ensure Compliance with media-specific laws.99 These
compliance people often do not interact with the pro-
duction people who are in charge of the production
processes that generate the waste. Even in small firms,
where one person may be responsible for all environ-
mental compliance, he or she may know more about
discharge pipes and legal requirements than production
processes. The separation of production people from
compliance people makes it very difficult for a firm to
adopt pollution prevention because.prevention almost
always involves modifications in production processes.
2. Industry Distrust of Environmental Agencies
Companies currently distrust federal and state envi-
ronmental agencies. Companies fear that government
will use pollution prevention information obtained
through pollution prevention statutes to mandate
specific process changes or, to tighten current discharge
• limits.100 In addition, costs of complying with the Pol-
lution Prevention Act's reporting requirements are
expected to be substantial,101 increasing industry's op-
position to government-initiated pollution prevention,
3. Industry Inertia
Companies continue to depend on end-of-pipe control
methods because these methods: (1) tend to achieve
compliance with environmental laws and satisfy gov-
ernment regulators; (2) represent a significant capital
investment102; and (3) are already in place and do not
require production changes. In addition, companies
can pass their increased waste disposal expenditures,
environmental liabilities, and raw material costs on to
their customers.103 Pollution prevention, on the other
hand, appears risky. To many companies, the initial
investment in pollution prevention does not appear to
outweigh its long-term benefits. Experience indicates
however, that the pay-back period for pollution pre-
vention programs is often less than one year.104
Some firms may resist incorporating pollution preven-
tion techniques into their production processes because
it could alter their standard operating procedures. For
example, in companies where production people are
segregated from environmental compliance people,
pollution prevention may be seen by production
people as a challenge to their "turf."105 Companies
may also resist adopting pollution prevention because
it might necessitate product changes that could affect
their products' quality, integrity, or marketability.
Companies that contract with the government may
•* See Hodges-Coppte. supra note 88, at 38. ,
«* For example, Japan's Clean Japan Center, a government-sponsored waste control institute, coordinates various industrial efforts in pollution
prevention. France's Environmental' Ministry is considered to be the world leader in promoting waste reduction efforts. Since its inception in r
<97$, il has provided subsidies for developing and installing waste reduction technologies. N. Baska,& D. Vagi, Waste: An Ounce of Prevention,
CH€M^ EHQ'O, Aug. 15, 1988, at 34. A 1982 survey of 200 French companies with waste reduction programs showed energy savings in 51 % of
,t»e companies, taw malarial savings in 47%, and improved working conditions in 40%. Hirschhorn & Oldenburg, supra note 24, at 15.
** AjMoximately 5% of American companies have comprehensive pollution prevention programs in place. LaBar, supra note 15, at 32, 35.
*• tylantk Roy, PoHUion Prevention, Organizational Culture, and Social Learning, 22 ENVR. L. 189, 235-38 (1992). ,
« irt "' , " ' ' ' " ' ' "' " ' ,
"* E, Lynn Grayson, The Pollution Prevention Act rt 1990: Emergence of a New Environmental Policy, 22 Envtl. L. Rep. 10392,10395 (June 1992).
w< It ts estimated that the compliance'cost to industry of reporting pollution'prevention information will be $49.5'million the first year and
more than S36 million in subsequent years. 'Id. at 10396.
"'"* J H«cr»rtom and K, Oldenburg. Preventing Pollution is Wo End-ot-Pipe Dream, ACROSS THE BOASC, June 1987, at 13.
"* See Johnson, supra note, 17, at 163, "' .. ' ' : 'r '", " ' "'^ " ' , , ,
"""* The average pa>fia« time tor 168 waste reduction projects begun in the last three years by Dow Chemical in Midland, Michigan, has been
«tss than one year. For a S30 million capital investment, over iOfJ million pounds o.f waste per year have been eliminated, G. Rarkinson,
'tttciucing Wastes Can Be Cost Effective. C«EW. ESG'G. July 'i'990'! at 30. 31. ''' •' ,_
'* John Sheridan. Pollution Prevention Picks Up Steam. INOUSTBV.WEEK, Feb. 17, 1992, at 40. ,,.-',
Primer for Law Teachers '10
August 1994
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be blocked from adopting pollution prevention,if
their contracts require compliance with production
specifications that conflict with pollution prevention
production techniques.]<* I . .
4. industry Ignorance
Ignorance is perhaps the greatest barrier to pollution
prevention's wide-scale adoption.107 Many companies
are simply not aware of pollution prevention and its
potential economic benefits. This ignorance is re-
inforced by business and accounting practices that
undervalue environmental costs such as bad public .
relations, long-term liability, ot the cost of future ,
regulatory changes.108 :-.
IV. Examples of Pollution
Prevention Programs
A handful of U.S. companies have voluntarily insti-
tuted pollution prevention programs. For the most
part, these companies are large corporations that have
the resources to adopt pollution prevention despite the
significant barriers that thwart its wide-scale adoption.109
Successful programs include the following.
Dow Chemical ..-•._';" v ,
• Dow instituted its .Waste Reduction Always Pays
(WRAP) program in 1986.
• Toxic chemical releases were reduced by 21%, from
12,252 tons in 1987 to 9,659 tons in 1989.- Off-site
waste transfers were .reduced by 15%, from 2,855
tons in 1987 to 2,422 tons in 1989. Dow's air emis-
. ' sions declined 54% from 1984 levels.110 '
• In 1990, Dow approved 115 WRAP projects, at a cost
of $13.!2 million. First-year savings were estimated
at $18 million with a 125% return on investment.
Of the 115 projects, 53 were specifically pollution
.prevention projects. Those projects had a 109%
return on investment.111
• In Dow's Pittsburg, California plant, a waste reduction
team discovered a way to control a reactant used in
the .production of agricultural products, eliminating
2.5 million pounds of waste a year and, at capacity
production levels, saving an estimated $8 million a'
year in raw materials and waste treatment costs.112
• In 1990, Dow recognized five projects for outstand-
ing pollution prevention achievement.. The net
savings in raw materials and disposal costs from
those five projects was estimated at $10.5 million.113
3M
3M has operated a pollution prevention program,
Pollution Prevention Pays since 1975. i „
Total savings have been approximately $530 million
•from 3,000 projects.114
> 'Pollution releases and energy use have both been
reduced by 50% since 1975115
' An expanded waste reduction effort called 3P Plus
was introduced in 1988. 3P is a set of voluntary
goals, .including a 90% reduction in air, water, and
land releases by the year 2000 .as well as a 50%
reduction in all waste generation.
• 3P has so far eliminated 120,000 tons of air pollutants,
-15,600 tons of water pollutants, 410,000 tons of sludge
and solid waste, and 1 billion gallons of waste water.116
106 Larry Edelman & David Rozell, Oregon's Toxics Use Reduction and Hazardous Waste Reduction Act: A Bellweather for Pollution
Prevention Regulation. 20 Envtl. L. Rep. 10093,10095 (1990) (quoting U.S. CONGRESS, OFFICE FO TECHNOLOGY ASSESMENT, FROM
POLLUTION TO PREVENTION,: A PROGRESS REPORTON WASTE REOUCTION, QTA-ITE-3117 (June 1987). ' , • . '
" Johnson, supra note-17, at 163-64. . ' . . . - . . , ,
06 Ember, supra note 29, at;15-16. . -. ' , ' •' " • .
M Small companies are least likely to be able or willing to spend the time and money necessary to adopt pollution prevention; however,
they are the companies most likely to benefit from such a program. Johnson, supra note 17, at 164.
0 EPA.;supra note 1,, at 59. . : , . .'. . . "' '•','.'. . . -
' Ember, supra note 29. at 12. " • • ."•,"- , • — ' •'
2 Sheridan, supra note ,105. at 37.. . •'. .-••.'. .' .' •_ . .... , •
Id. at 43, . . - • . ' ' . . -' ' -
' Ember, supra note 29. at 12-. ' _ •• •• •.'.,. < • .- . ^ ' .
s Id. • ' ' . ,""'..•••.'•',. ' . ' '/,''••.•
4 Sheridan, suora note I05.~at.45.' • • . . '. . •.'•:>...
.Primer for Law Teachersr 11
August 1994
-------
OuPont
• DuPont adopted a pollution prevention program,
the Resource program, in 1985.
* Its program reduced DuPont's plastic-waste' disposal
by fifty million pounds per year through more
efficient equipment and process controls and by
finding buyers for its off-spec materials.117
• Its Antioch, California plant received an EPA award
for reducing hazardous waste by 95% since 1985,'
resulting in annual waste disposal savings of over
SS.S million.118
Chevron
• Chevron initiated a program, entitled Save Money
arid Reduce Toxics (SMART) Program, in 1987.
• In its first year, hazardous waste disposal dropped .
, 44%, from 135,000 to 76,000 tons, saving the company
§3,8 million.1"
• Its Richmond, California plant received an EPA
award for reducing Hazardous waste generation by
82% between 1984 and 1989. Chevron's cost savings
from the reduction were more than $1 million.120
Union Carbide
• Union Carbide switched from slaked lime to caustic
soda to neutralize wastes from one of its silicone
plants. This substitution and other pollution pre-
vention measures resulted in a reduction in organic
wastes by 50%, a reduction in sludge volume by
75%, and annual savings of approximately $500,000
per year.'21
, ,, ^
Cleo Wrap
• Cleo Wrap replaced organic solvent-based inks with
water-based inks in its Memphis, Tennessee, plant,
eliminating nearly all hazardous wastes and saving
approximately $35,000 per year in disposal costs.122
• The reduction also enabled the company to eliminate
its underground storage tanks, reducing its fire
• insurance premiums.123
The authors of this article gratefully acknowledge
Professor Nancy Kubasek, Bowling Green State University,
and Professor James P. Karp, Syracuse University,
for their thoughtful and extensile review comments.
"' Paiklnson. supra note 104, at 31.
"*EPA, supra note 1, at 51.
"* Stmtegy, supra note 43, at 7853.
189 V, ' , ,' .
""Parkinson, supra note 104, at 31.
ia Hwschhom & Oklenbwg, supra note 102, at 12.
Original produced on Hammermill Unity DP,
a 50% post-consumer/50% pre-coneumer recycled paper
made from derinked old newspapers and magazines.
Primer for Law Teachers • 12
August 1-994
-------
I
National Pollution Prevehtion Center
430 E. University, Dana Building I
• • Ann Arbor, MI 48109-1115
"Reprinted with the permission of the Columbia Journal
of Environmental Law for educational purposes only"
From Reaction to Proaction: The 1990
Pollution Prevention Act
Stephen M.Johnson*
I. INTRODUCTION *
"From a policy perspective, the next twenty years will require a
fairly fundamental shift in our approach — from the acute to
the systemic, from local to. global, from exploitation to steward-
ship, from reaction to proaction. We cannot afford to continue
orienting our funds and efforts towards trying to mitigate the
consequences of our mistakes; we must start preventing the
mistakes."
John Atcheson, Office of Pollution Prevention,
United States Environmental Protection Agency1
At the heart of the pollution prevention idea is the simple no-
tion that avoiding the creation of pollution is economically and
environmentally preferable to cleaning up and controlling it.
Historically, environmental protection legislation and regulations
have focused on "pollution control" rather than "pollution pre-
vention."2 The legislative and administrative response to pollu-
tion issues has been to set acceptable pollution levels and to
• Trial Attorney, United States Department of Justice, Environment and Natural Re-
sources Division. L.L.M. Environmental Law 1991. George Washington University, Na-
tional Law Center; J.D. 1988 Villanova Law School. Mr. Johnson served as Assistant
Counsel at the Pennsylvania Department of Natural Resources. Bureau of Regulatory
Counsel from 1988 to 1991. The views expressed in this Article are solely those of the
author and'should not be considered to reflect the views of the Department of Justice.
1. John Atcheson. Where We've Been. What's Ahead, POLLUTION PREVENTION NEWS; Nov.-
Dec. 1990, at 1/8. '
2. Traditional "pollution control" regulation attempts to minimize the adverse environ-
mental impacts of pollution by imposing comrols on the release of pollutants into the
environment after the pollution has been generated. For instance, the Clean Air Act sets
limits on the emissions of various air pollutants into the atmosphere. 42 U.S.C. §i 7409-12
(1988), and the Clean Water Act limits the amounts of various pollutants, that can be dis-
charged into the water, 33 U.S.C. § 1311 (1988). "Pollution prevention'^ regulation, on
the other hand, attempts to prevent the generation of pollution in the first place. EXECU-
TIVE. OFFICE 'OF THE PR£SIDENT.,COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL
QUALITY: 21 ST ANNUAL REPORT 79 (1990) (hereina/ter CEQj.
153}
* Johnson, Stephen M. "From Reaction to Proaction: The 1990 Pollution Prevention
ACL" Columbia Journal of Environmental Law 17, no. 1 (1992): 153-204.
• .- "' •-.' ' " ' > • • . :'.' •' ' ; : '. 35
-------
, ,. «/
it**.'
Xv; - j
i**i
AW* 1
*%,^l
^€^1
» s« «-• • i
SiMlTCVi?
::f^
":f ^
COU.-M.U O 0F EHV-ON-— .
require treatment of pollutants w.h vanous technologies to reach
th^luL control approach has ser^ «c and env,
_tal drawback, First, ^^^^ddriing the
focus on specific environmental problem^ ^ segments
cross-media impact tha, :the ^measures ^ usually target
of the environment." P0'1""™^ medium (U , air, water, or
the problems of a single envxronmenta encourage the
land), and impose restncuons onpoUu t^ However the
exceeds
that caused by the regulated source, ^ ^ k
A third drawback of the pollutio no omrol pp ^
accepts a fixed level of poU u aon -By do, ng^, ^^ .
courage reductions ; »" Pollu"^ ™ ssional Office of Tech-
Studies performed by nda.
nology Assessment (
Pollution
Fo. Poticv ALT..N.T,™. *"
»™. • h .i
on
the land. 56 Fed. Reg. ai 78o3
cer, contamination. 56
U- .o -
pollution problems. Id.
~, Id.
3, NELC. supra note 4, at 4.
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1992]
From Reaction to Proaction
•165
. opportunities for reductions in pollution through pollution pre-
vention technology presently available to industry.9
Fourth, the pollution control approach encourages inefficient
•*' environmental spending b/y industry.10 Legislation and-regula-
tions encourage-.firms to invest hundreds of millions of dollars in
pollution control technologies rather than to, explore improve-
ments in feedstocks or production,methods, plant maintenance,
, or other pollution prevention techniques that would cost less to
implement and would achieve higher levels of environmental
protection.
The clearest evidence that the pollution control approach is in-
adequate lies in the data regarding the emission of toxic pollu-
tants that has been collected under the Emergency Planning and
- Community Right to Know Act ("SARA Title III").11 According
9 In a 1986 report to Congress. EPA estimated that it was'possible to reduce substan-
tially the amount of hazardous waste, generated in the Unued States by using pollution
prevention methods. U.S. ENVIRONMENTAL PROTECTION AGENCY, REPORT To CONGRESS: .
MINIMIZATION OF HAZARDOUS WASTE. EXECUTIVE SUMMARY AND FACT SHEET 4 (Oct. 1986
[hereinafter EPA REPORT). OTA was even more optimistic, predicting m a 19.86 report
that it was possible to reduce the amount of hazardous waste generated, in the United
States bv 10% per year for the five years following the report. U.S.' CONGRESS OFFICE OF
TECHNOLOGY .ASSESSMENT, SERIOUS REDUCTION OF HAZARDOUS WASTE 1 (1986) [heremaf-
ter OTA]. '- ' i ' _ - .'•'•"'
, 10. 56 Fed. Reg. at 7853. • . ' ,
11 42 U S C §§11001-50 (1988). SARA Title III requires the owner or operator ot
certain types of industrial facilities,to complete a toxic chemical release form for each toxic
chemical listed in section 3l3(c) of the Act that was manufactured, processed, or otherwise.
used bv the facility 4n quantities exceeding threshold levels established for the chemical m
section 313(f). and to report quantities of the chemical that were released mto the envi-
ronment in the preceding year to EPA on a toxic chemical release form. 42 L.S.C.
§ A fadSl is required to submit a toxic chemical release form under section 313(a) if the
facility emplovs 10 or more full-time employees, engages in a manufactunng activuydesig.
nated by the Standard Industrial Classification Manual Code ("S.IC Code nurnbers 20
through 39, and manufactures, processes or otherwise uses a toxic chemical listed m sec-
tion 313(0 in excess of the thresholds established in section 313(0 dunng the calendar
year for which a release form is requ.red. 42 U.S.C. § 11023(b)(l)(a, (1988- •
The industries covered bv SIC Code numbers 20 through 39 are food and kmdred prod-
ucts tobacco products, textile mill products, apparel and other textile products, lumber
and wood products, furniture and fixtures, paper'and allied products, pnnung and -pub-
. ' lishing. chemicals and allied products, petroleum and coal products, rubber and. miscela-
' neous plastics products, leather and leather products, stone, clay, and glass products.
primarv metal industries, fabncated metal products, industrial machinery and equipment..
electronic and'other electric equipment, transportation equipment, instruments and re-
lated products, and miscellaneous manufactunng industries. EXECUTIVE OFFICE OF THE
PRESIDES-!-. OFFICE OF MANAGEMENT AND-BUDGET. STANDARD INDUSTRIAL CI^SSIFICATIO?.
•• MANUAL 4*9-435 119871 Section 313(b) of-the Act.authorizes the Administrator.of EPA-.
i
7
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156
COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
to that data, despite the existence of comprehensive pollution
control legislation addressing discharges of pollutants into all me-
dia, 4.57 billion pounds of toxic chemicals were released directly
into the air, water, and land in 1988 by 19,672 industrial plants.12
Furthermore, since SARA Title III only requires specific manufac-
turing industries to report toxic chemical releases, the SARA Title
III data understates the true dimensions of the problem of toxic
chemical releases.13 Despite the existence of comprehensive pol-
lution control legislation, the volume and hazards of toxic chemi-
cal releases continue to grow as the United States uses and
creates more toxic chemicals.14
In response to the drawbacks of the pure pollution control ap-
proach outlined above, EPA,15 industry,16 and environmental-
m his discretion, to expand the list of SIC Code numbers covered by section 313(a). 42
U.S.C. § 11023(b)(2) (1988).
The toxic chemicals covered by section 313(c) are those chemicals included on the list in .
Committee Print No. 99-169 of the Senate Committee on Environment and Public Works,-
including any revised version of the list as may be made pursuant to section 313(d) or (e).
42 U.S.C. § 11023(c) (1988). The list in Committee Print No. 99-169 contains approxi-
mately 329 chemicals. STAFF OF SENATE COM?.!, otf ENV'T AND PUBLIC WORKS, 99rn CONG.
2n SESS., LIST OF Toxic CHEMICALS SUBJECT TO THE PROVISIONS OF SECTION 313 OF THE
EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT OF '1986, at 1-3 (Comm. Print
1986).
The thresholds established in section 313(f) require reporting by any facility that uses
10.000 pounds of a section 313(c) toxic chemical during the preceding year. 42 U.S.C.
§ 11023(f)(l)(a) (1988). Section 313(f) also phases in a reporting requirement for facili-
ties that manufacture or process 75,000 pounds of section 313(c) toxic chemicals during
1988. 50.000 pounds during 1989. or 25,000 pounds during 1990 or any year thereafter.
42 U.S.C. § 11023(f)(l)(b) (1988).
A facility is deemed to "manufacture" a toxic chemical if it produces, prepares, imports
or compounds the toxic chemical. 42 U.S.C. § H023(b)(l)(C)(i) (1988). A facility
"processes" a toxic chemical if it prepares the toxic chemical, after its manufacture, for
distribution in commerce. 42 U.S.C. $ 11023(b)(l)(C)(ii) (1988).
12. S. REP. No. 526, 101st Cong., 2d Sess. 2 (1990). Similarly, 22,650 manufacturing
facilities reported releasing 5.7 billion "pounds of toxic chemicals directly into the environ-
ment during 1989. Emergency Planning: Releases of Toxic Chemicals in 1989 Reached 5. 7 Billion
Pounds. EPA Reports. 22 Env't Rep.-(BNA) 223-24 (May 24, 1991).
13. As noted above, SARA Title III only requires reporting by facilities that employ 10
or more full-time employees, engage in a manufacturing activity described in SIC codes 20
through 39, and manufacture, process or use listed toxic chemicals in amounts that exceed
specified threshold levels. See supra note 11. For example, SARA Title III does not require
non-manufactunng operations such as agricultural operations (SIC Codes 1,2, and 7),
silvtcuitural operations (SIC Code 8). mining operations (SIC Codes 10, 12 and 14), or oil
and gas operations (SIC Code 13) to report toxic chemical releases.
14. In 1940, the entire L'.S. economy produced less than one million tons of synthetic
organic chemicals. N'ELC, supra note 4. at 3. By 1987, however, the annual production of
svnthetic organic chemicals in the L'nited States rose to 125 million tons. Id.
15. Set supra note I. , ,
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1992]
From Reaction to Proaction
157
ists17 have recently joined forces to call for a fusion of pollution
prevention and pollution control measures. These efforts have
focused on changing practices to create less pollution.
With regard to manufacturing operations, there .are five general
categories of activities that are, usually described as methods of
pollution prevention:18 (1) changes in process inputs (i.e.,- substi-
tution of non-toxic materials for toxic chemicals as raw materi-
als),19 (2) improved plant management or housekeeping (i.e,,
predictive or preventive maintenance of equipment that encour-
ages efficient clean operation and improved materials handling to
prevent spills),20 (3) changes in process equipment or process
technology (i.e., modification and modernization of equipment
and technology to encourage clean, efficient operation),21 (4) re-
cycling and reuse of materials within a process,22 and (5) changes
in the design of end products (i.e., eliminate the need for toxic
chemicals in the manufacturing ^process).23 These activities gen-
erally encourage more efficient manufacturing, reducing the vol-
ume and toxicity of pollution generated, and thus are, less
destructive to the environment.24
16. The Council on Environmental Quality's 21st annual report describes several of the
aggressive pollution prevention programs that have been implemented by industry. CEQ,
supra note 2. at 89792. , , " .
17. NATIONAL ENVIRONMENTAL LAW CENTER & U.S. PUBLIC INTEREST RESEARCH GROUP,
Toxic TRUTH AND CONSEQUENCES 3 (1991) (hereinafter USPIRCJ.
• 18. S. REP. No. 526, supra note 12. at 3; see also NELC, supra note 4, ai 4.
19. S. REP. No. 526, supra note 12. at 3. For example, a Union Oil Company chemical
plant eliminated the generation of mercury waste at the plant by substituting a mercury-
free biocide for the mercury biocide that the facility previously used. H.R. REP. No. 555,
101st Cong., 2d Sess. 4 (1990). ' ' ,
20. H.R. REP. No. 555. supra note 19, at 4. For example, an Exxon facility reduced the
volume of organic wastes entering its wastewater treatment plant by 75^o by implementing
a stewardship program, whereby plant employees monitored discharges containing toxic
constituents. Id. ' •
21. S. REP. No. 526, supra note 12, at 3. Atlantic Industries reduced wastewater dis-
charges by 55,000 pounds per year while increasing product yield by-8%. by changing
chemical concentrations, lowering, chemical reaction temperatures, and using 'a new
method of combining dve components in the manufacturing of dyes. H.R. REP. No. 555,
supra note 19, a< 4. • ''' .
Similarly. Dow Chemical significantly reduced the volume of hazardous chemical gases-
that it generated at one of its facilities by substituting a pumping mechanism for the pres-
surized nitrogen gas that it used to move raw materialsvfrom storage tanks'into reactor
vessels. Id, • , . - . .
22. S. REP. No. 526, supra note'12.'at 3, . . . - -- -
23. Id. '•.--.. ' .'•.•"..
24. H.R. REP. No. 555.,supra note 19. at 4. ' ' • ' '
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158
COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
Pollution prevention also provides economic benefits. The
costs borne by a manufacturer to control or manage pollution af-
ter it has been generated decrease as the manufacturer produces
less pollution. Furthermore, as pollution prevention measures
encourage more efficient manufacturing processes, operating
costs for manufacturing facilities should decrease.25
In recent years support among environmentalists, industry, and
government for an infusion of pollution prevention measures into
the existing pollution control regime spurred many states to enact
pollution prevention legislation. This legislation took two forms:
(1) waste reduction legislation and (2) toxic chemical use reduc-
tion legislation.26 Similarly, the federal government enacted pol-
lution prevention legislation in October of 1990.27 These
statutes are not meant to supersede the existing pollution control
legislation, but rather to supplement that legislation. In fact, the
existence of stringent pollution control requirements often moti-
vates industry to implement pollution prevention measures.28
25. See infra note 44 and accompanying text.
26. Set e.g., CAL. HEALTH & SAFETY CODE §§ 25244.12-.24 (West Supp. 1992) (waste
reduction); GA. CODE ANN. |§ 12-8-62 to 12-8-66 (Michie Supp. 1991) (waste reduction);
ME. REV. STAT. ANN. tit. 38, §§ 2301-12 (West Supp. 1991) (waste and toxics reduction);
MASS. GEN. LAWS ANN. ch. 211, §§ 1-23 (West Supp. 1991) (toxics reduction); MINN. STAT.
ANN. §§ 115D.01-.12 (West Supp. 1991) (toxics reduction); OR. REV. STAT. §§ 465.003-
.037 (1990) (waste and toxics reduction); TENN. CODE ANN. §§ 68-46-301 to 68-46-312
(Supp. 1991) (waste reduction); WASH. REV. CODE ANN. §§ 70.95C.OOO-.240 (West Supp.
1991) (waste reduction). Other states have enacted more modest measures. See ILL. ANN.
STAT. ch. lll'/j. para. 7951-57 (Smith-Hurd Supp. 1991) (toxics reduction); IND. CODE
ANN. '§§ 13-7-27-1 to -7 (Burns 1990)(waste reduction).
The State of New Jersey is exploring a particularly innovative approach to pollution
prevention. Under S. 2220, a proposal introduced in the New Jersey General Assembly in
1990, the New Jersey Department of Environmental Protection ("NJDEP") would be re-
quired to issue and administer 10 to 15 "facility-wide" permits to industrial facilities as
part of a pilot program. N.J. SEN. No. 2220 SCS, 204th Leg. Sess. § 12 (1990). The per-
mits would regulate air, water, and land discharges through a single, integrated permit for
the facility based on a pollution prevention plan prepared by the facili..,, mther than
through the conventional system of three separate permits focusing independently on air,
water, and waste. Id. The integrated permit approach would focus on the overall impact
of the facility on the environment, and avoid transferring pollution from one medium to
another. Id. By early 1990, the NJDEP had negotiated facility-wide permits with three
facilities in the State, and was coordinating the development of permits with EPA to ensure
compliance with federal requirements. Id. S. 2220 was passed by the New Jersey General
Assembly and signed jnto law on August 1, 1991. Fiona Signs Pollution Prevention Bill With
Coal to Cut Hazardous Releases by Half. 22 Env't Rep. (BNA) 1035 (Aug^9, 1991).
27. Pollution Prevention Act of 1990, Pub. L. No. 101-508, §1.6601-10, 104 Stat. 1388
(codified at 42 U.S.C.A. §§ 13101-09 (West Supp. 1991)). .
28. 'See infra notes 31 -34 and accompanying text.
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From Reaction to Proaction
159
Part II of this article explores the current incentives and disin-
centives for pollution prevention. Part III examines state and fed-
eral legislative, regulatory, and administrative efforts to
encourage pollution prevention. Finally,. Part IV critiques the
• 1990 Pollution Prevention Act, and suggests additional measures
. that Congress could impose to overcome existing disincentives to
pollution prevention that the Act does not adequately address.29.
II. INCENTIVES AND DISINCENTIVES FOR POLLUTION PREVENTION
It is not unusual to hear environmentalists or government
agencies praise pollution prevention due to its environmental
benefits, but it is not as apparent why many businesses have
joined them.30 This section explores the various reasons why
many,firms have developed pollution prevention programs. It
then examines the factors that have kept other firms from adopt-
ing them.
Several factors encourage industry to explore and implement
pollution prevention measures. First, the costs of controlling pol-
lution after it has been generated are rapidly increasing, and in-
dustries are realizing that it often costs less to prevent pollution
than to control it.31 Pollution control costs are rising due to the
proliferation of federal and state pollution control laws and regu-
lations-^ and the high cost of the pollution control technologies
29. 56 Fed. Reg. J855 (1991). the Agency has already published a generic waste re-
ducdon manual entuled "Waste Minimization Opportunity Assessment Manual.": Reports-
from EPA: ORD Guidance Manuals Completed, POLLUTION PREVENTION NEWS. Nov -Dec 1990
at 2. EPA has also published industry-specific pollution prevention guidance manuals in
conjunction with the California Department of Health Services, for the pesticide formulat-
ing industry, the,pa.m manufacturing industry, the fabricated metal products industry the
printed circuit board manufacturing industry,, the commercial printing industry, selected
hospual waste streams, and research and educational institutions. Id. Eleven other indus-
try-specific guidance manuals were planned for publication by EPA and the California De-
partment of Health Services in 1991. Id. Part IV of this Article, however, goes beyond the
suggestions made in these documents. ,• ' -.•'..
30. Set CEQ, supra note 2, at 79. "
31 Hansen, supra note 3, at 30. Stt also EPA REPORT, supra note 9, at vii; NELC, supra
note 4. at 6. The President's Council on Environmental Quality estimates that American
industries pay almost $115 billion per year to comply with existing pollution cohtrol'laws.
CEQ, supra note 2. at 50; NELC, supra note 4, at 6. As noted earlier, the high costs of
complying with pollution control laws significantly affects the mternational competitive- .
ness of L^S. mdustrv. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT. FROM POLLU-
nT-lTn1 oT•VT1°N: * PROCRESS'R"°«T ON WASTE REDUCTION 12 (1987) [hereinafter
01 A II]. Pollution prevenuon measures, on the other hand, can improve industrial com-
petitiveness, id.
32. EPA REPORT, supra note 9. at.vi-viii. •
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160 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
required for compliance. The administrative burden of comply-
ing with a broad spectrum of pollution control requirements pro-
vides an additional incentive for industries to explore pollution
prevention.33 • ' .
Potential liability is a second factor driving industry to explore
and implement pollution prevention measures. Potential liability
for harm to public health or the environment caused by pollution
continues to increase,34 while the availability of liability insurance,
especially environmental impairment liability insurance (also
known as "pollution insurance"), continues to decrease.35
A third factor motivating industrial pollution prevention is pub-
lic opinion. Environmental consciousness is growing among
American consumers, who are increasingly taking factors such as
an industry's environmental record or the impact of a product on
the environment over its lifetime36 into account when purchasing
products.37 The widespread dissemination of information gath-
ered under SARA Title III regarding emissions of toxic pollutants
reinforces accountability of American industry to the public.38
Since the public holds firms accountable for their production and
marketing practices, pollution prevention plays an important role
in industrial public relations.39 Pollution prevention enhances a
33. Id. at viii. See also OTA II, supra note 31, at 12. ' f
34. H.R. REP. No. 555, supra note 19, at 5. See also Hansen, supra note 3, at 30; EPA
REPORT, supra note 9, at ix; STATE/EPA COMMITTEE ON RCRA REAUTHORIZATION, FINAL
RCRA REAUTHORIZATION ISSUE PAPERS 26 (July 31, 1990) [hereinafter STATE/EPA
COMMITTEE].
35. EPA REPORT, supra note 9, at ix. When environmental impairment liability insur-
ance can be acquired, it is often verv expensive. Id.
36. EPA is currently conducting research to develop a streamlined lifecycle assessment
methodology to analyze a product's impact on" the environment from the time of manufac-
ture to the time of disposal. EPA Says Life-Cycle Analysis May Hold Key to Assessment of True
Environmental Costs, 21 Env't Rep. (BNA) 2222 (Apr. 12, 1991). Environmentalists, though,
are skeptical of lifecycle analysis, charging that the data obtained from such analysis can be
manipulated to bolster the environmental claims of whichever industry conducts the analy-
sis. Id. at 2223. '
37. David Kirkpatrick, Leading the Crusade into Consumer Marketing, FORTUNE, Feb. 12,
1990, at 44, 50. Ti% of Americans questioned in a July 1989 survey indicated that they
consider a company's environmental reputation when determining whether to buy prod-
ucts from the company. Id. .
38. 56 Fed. Reg. 7857 (1991). EPA's Science Advisory Board has found that "public
information play(s) a vital role in promoting pollution prevention-and reducing risk." Id.
39. Corporate marketing strategies are increasingly focusing on the environmental
safety of products. Kirkpatrick. supra note 37, at 50. For instance, in mid-November 1990,
Proctor and Gamble began marketing us "Downy" fabric softener in a 21'/a ounce milk
carton-tvpe container that is intended to be mixed with water in a reusable plastic bottle of
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1992],
From Reaction to Proaction
161
company s environmental reputation and bolsters its marketing
efforts. It may also deflect the public scorn and retaliation tha!
' 'f £h a-ounts Qf toxic
Finally; industrial pollution prevention 'is' beginning to thrive
because ,t generally increases the efficiency of ? industrial proc-
esses As raw materials and operating costs increase, it is essen-
tial that industries operate more efficiently. Pollution prevention
techniques focus on changes- in production processes, materials
use, and maintenance to reduce the volume of .pollution created
and to encourage maximum efficiency.42
Due to the interplay of the factors described above/pollution
prevention programs are gaining widespread acceptance.^ In-,
? R°RT n°te note 34. at 26.
42. H,R. REP No. 555. supra note 19 at 5 '
•
S!'Iii,iti,i6p^^^^
Colorado Department of Health. "Adolph Coors Com-
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
dustry has joined forces with government and environmentalists
to encourage pollution prevention for the simple reason that pol-
lution prevention makes good business sense.44
While economic factors encourage industries to explore and
implement pollution prevention opportunities, government agen-
cies and public interest groups have found additional reasons to
espouse pollution prevention. Public support for pollution pre-
vention efforts has grown because these efforts generally reduce:
(1) the amount of toxic substances present in the environment,
(2) worker exposure to toxic substances, (3) the potential for acci-
dents and spills in transporting toxic substances, and (4) the
amount of toxic substances present in consumer products.45
Government agencies support pollution prevention measures
due to the increased environmental protection that they provide.
Further, the implementation of these measures by industry in-
creases regulatory compliance and thus may reduce or slow -
growth in government spending on regulatory programs.46 In'
pany, Martin Marietta Corporation, Hewlett Packard Company, the Public Service Com-
pany of Colorado, the Colorado Public Interest Research Group, and the League of
Women Voters joined forces in a Pollution Prevention Partnership to explore ways to re-
duce and eliminate tnchloroethane, an industrial solvent that is a suspected carcinogen
and has been linked to ozone depletion.. Looking Ahead . . . Pkdgts, Plans and Programs for
Source Reduction in the Coming Yean, POLLUTION PREVENTION NEWS, Nov.-Dec 1990 at 6
The American Institute of Architects is also getting involved in pollution prevention ef-
torts. Id. The institute is currently developing an environmental resource guide to help
architects evaluate the environmental consequences of their design decisions. Id
44. 3M s pollution prevention efforts between 1975 and 1985. for example, saved the
company $300 million. H.R. REP. No. 555, supra note 19. at 4. Chevron's SMART pro-
gram resulted in a $3.8 million savings in 1987 alone. Id.
Dow Chemical's Chlorinated Ethane Products Department in Texas is another example
of the cost savings that can be generated by pollution prevention. Dow modified its pro-
duction process at the plant to eliminate the use of excess ethylene, which was contaminat-
ing hydrogen chloride during production. 1990 Success Stories: Dow Chemicals WRAP
Winners. POLLUTION PREVENTION NEWS. Nov.-Dec. 1990, at 3. The plant then began to use
idle equipment in the process to use . ure hydrogen chloride to produce hydrochloric
acid for other Dow facilities, and improved the reparation of a byproduct, vinvl chloride
These efforts resulted in a $2.6 million annual savings for Dow. 'id.
On a smaller scale, a Clairol plant in Camarillo, California saved $240,000 per year bv
installing a system that used a foam ball propelled by air through th'e pipes of the produc-
lion Process to collect excess product, rather than flushing the pipes with water. 56 Fed.
Keg. at ,853 S.milarly. a Borden Chemical Company plant was able to save $48,000 per
year by installing a new alter rinsing and tank cleaning process chat reduced the discharge
T °rg^C™°nVCntS int0,"S Wastewater- NELC' '«*» ™te 4. at 6. Riker Labs in California
saves J15 000 per vear by using a water-based solvent instead of an organic solvent for the
process of coating medicine tablets. Id.
45. OTA. supra note 9. at 14.
46. OTA II, supra note 31. at 15.
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addition/since the implementation of pollution prevention may
result in increased industrial efficiency, pollution prevention can
yield increased tax revenues.47
Despite the panoply of incentives, for pollution prevention, and
notwithstanding its growing acceptance, far greater pollution pre-
• vention is'possible than has been achieved.-*8 The Congressional
Office of Technology Assessment ("OTA") argues that greater
pollution prevention has not been achieved .because many of the
so-called "incentives" to. pollution prevention are not true incen-
tives.49 An incentive, OTA stresses, must have the purpos.e of en-
couraging a particular desired response.50 Increased pollution
control costs, increased liability, and increased regulatory bur-
dens may tangehtially result in pollution prevention, but their
purpose is not to encourage pollution prevention.51 Thus, OTA
posits, industry may react to those "incentives" in ways other
than implementing pollution prevention.52 For instance, often
companies can comply with increased regulatory requirements
and pass the compliance costs on to their customers by increasing
the prices of their products.53 Companies may also relocate in
order to avoid increased economic and regulatory burdens.54
Furthermore, they may violate pollution control laws and regula- '
tions and accept fines and penalties as a cost of doing business.55
Companies often choose such alternatives because a variety of ob-
stacles impede the growth of pollution prevention.
It would be convenient to rationalize that there is a lack of feasi-
ble pollution prevention technology, or that government regula-
tions prevent the implementation .of such technology, but neither
is the case.56 The primary obstacle to pollution prevention today
, 47. 'id. . '' . ' . ' ' ' ' ,
48. Set supra note 9 and accompanying text (addressing waste minimization by industrial
facilities). Agricultural and mining operations also provide a fertile, and largely unfilled, '
ground for pollution prevention efforts.
49. OTA II, supra note 31, at 26.
50. Id. , ; ,,.. . : .
51: Id. ' . : ; - ' , ' -.- • ,-• '
52. id. ..-- • • ' • '. ' -.••••'.,
53. Id. at 27.. . " , ' '. . ' "-.-,'•
. 54. Id. ..,-.•' " ' '."...
.. - • *
55. Id. OTA also suggested that industry could take advantage of loopholes and oppor-
tunities in the legal and regulatory'system to delay or avoid compliance. Id.
56. H.R. REP. No. 555, supra note 19, at 5,
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
appears to be ignorance by industry managers about pollution
prevention techniques and technologies currently available.57
One aspect of this ignorance is a lack of clear information about
the benefits of various pollution prevention techniques and tech-
nologies.58 Corporate decision-making and accounting systems
focus on short-term profit, and often fail to consider environmen-
tal compliance costs in the production costs of products.59 By
failing to focus on' those indirect costs, businesses may lose sjght
of the economic benefits of pollution prevention. Smaller compa-
nies are the least likely to be able or willing to spend the time and
money necessary to understand the true benefits of pollution pre-
vention, but they are the most likely to benefit.60
The absence of a uniform, reliable system for measuring the
effects of pollution prevention also makes it difficult to quantify
the benefits of these opportunities.61 The primary reason why
pollution prevention cannot be adequately measured at the pres-.
ent is the absence of precise historical data on pollution genera-
tion per unit of production for industrial processes.62 Without
such data, it is difficult to establish a baseline against which to
compare the current data on pollution generation. Additional
uncertainty in the measurement of pollution prevention is intro-
duced when a pollution prevention technique reduces the genera-
tion of one pollutant while increasing the emission of another,
less toxic pollutant.63 Such factors make it hard to measure the
57. S. REP. No. 526, supra note 12, at 3. S« also H.R. REP. No. 555, supra note 19, at 5;
Hansen, supra note 3, at 30. The shortage of information is felt most acutely by small and
medium-sized companies. EPA REPORT, supra note 9, at xii.
58. OTA II, supra note 31, at 1.
59. 56 Fed. Reg. 7855 (1991). See also OTA II, supra note 31, at 29; STATE/EPA COM-
MITTEE, supra note 34, at 26. *
60. OTA II. supra note 31, at I. See also Hansen, supra note 3, at 30; S. REP. No. 526,
supra note 12, at 4.
61. STATE/EPA COMMITTEE, supra note 34, at 26.
62. The Congressional Office of Technology Assessment notes that data on past waste
generation or waste reduction efforts is unreliable. OTA, supra note 9, at 21. Further-
more, the data that is obtainable on past waste generation and reduction is too aggregated
over processes, plants, companies, and industries to prove or disprove specific levels of
waste reduction. Id. Since levels of waste generation are affected by dynamic factors such
as levels of production, changes, in processes, and regulatory changes such as changes in
the definition of waste, the onlv reliable method of measuring- waste reduction is to mea-
sure and compare waste generation per unit of output from industrial processes. Id. See
STATE/EPA COMMITTEE, supra note 34, at 49.
63. OTA. supra note 9. at 22.
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benefits of pollution prevention, and therefore serve as obstacles
to greater use of pollution prevention techniques. -
In some circumstances, cost may also be an obstacle to pollu-
tion prevention,64 While pollution prevention techniques are
cost effective in the long run, they sometimes require large initial
capital investments.65 Smaller companies and less competitive
companies'may be unable to make those initial investments de-
spite the cost .savings that the investments will create in the
future. - "•','..
Companies may also be resistant to the incorporation of pollu-,
tio.n prevention techniques for fear that any modification in a
proven production process may undermine the quality and integ-
rity of their product.66 Some risk that quality will be adversely
impacted is present in any process change.
Finally, the existing regulatory structure67 and the organization
of EPA itself68 have fostered a pollution control compliance
mindset among managers that does not encourage pollution pre-
vention. Companies invest so much time and money into compli-
ance with pollution control requirements that they ignore the
potential benefits of pollution prevention.69 Similarly, as a result
of the focus on compliance with pollution control requirements,
corporate environmental decisions are often institutionally sepa-
rated from production decisions.70 Corporate environmental de-
cision makers are familiar with pollution control technologies yet
unfamiliar with production processes.71 Therefore, they focus on
64. EPA REPORT, supra note 9. at x. -'•'•'.'•
65. Id. For instance, the forty-seven projects undertaken by Dow Chemical in Louisiana
in 1988 and 1989 required investments of over twelve million dollars. CEQ, supra note 2,
at 89. . ! • ' _
66. EPA REPORT, supra note 9, at xi. Set also Hans'en, supra note 3, at 30.
67. Pollution Prevention Act of 1990. Pub. L. No. 'l01-508, § 6602(a)(3),' 104 Stat.
1388, 1388-321 (codified at 42 U.S:C.A, § 13101(a)(3) (West Supp.-1991 ,v
68. In its draft pollution prevention strategy, EPA cited the division of the Agency into
single-media offices and the lack of a cross-media focus in the organizational structure of
the Agency as an obstacle to pollution prevention. 56 Fed. Reg. 7855 (1991).
69. H.R. REP_NO. 555, supra note 19, at 5. 'Seeaiso OTA II, supra note 31. at 1; S. REP,
No. 526. supra note 12, at 4.
The installation of costly pollution control devices also creates .obstacles to pollution
prevention. OTA II. supra note 31, at 11. Once a company has invested large sums of
money in pollution .control equipment that allows it to continue to operate its process as it
has in the past and still comply with pollution control requirements, it has little incentive
to change Us processes to reduce the amount of pollution that it generates: Id.
70.-56 Fed. Reg. at 7855. . . . . •. * - > ..-.
, 71. OTA II. supra note 31. at 27. . ' .'.-.'
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l(56 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
the implementation of pollution control technologies72 rather
than on changes in production processes,73 creating additional
obstacles to widespread implementation of pollution
prevention.74
In summary, the many incentives for using pollution prevention
indicate that it is preferable to pollution control. The disincen-
tives to pollution prevention result from ignorance, irrationality,
a short-term business focus, and lack of economic resources.
These disincentives may be overcome through proper education
of decisionmakers combined with government assistance.
III. FEDERAL EFFORTS TO ENCOURAGE P ^LLUTION PREVENTION
Pollution prevention has only recently emerged as a major gov-
ernmental initiative, but it is not a new concept. The federal gov-
ernment began to encourage pollution prevention in the 1980s.
The attempts were not momentous, but they do deserve mention.
• , * i
A. Waste Minimization Requirements in RCRA
In 1984, Congress amended the Resource Conservation and
Recovery Act ("RCRA"),75 the federal law that regulates solid
waste management, by adding several provisions that address
hazardous waste minimization, a form of pollution prevention.76
The Hazardous and Solid Waste Amendments of 1984
("HSWA")77 added a provision to RCRA that requires generators
of hazardous waste that ship their waste off-site to certify: (1) that
they have a hazardous waste minimization program in place to
reduce the volume and toxicity of their waste "to the degree de-
termined by the generator to be economically practicable" and
(2) that the proposed method of treatment, storage, or disposal of
their waste is the practicable method of treatment, storage, or dis-
posal "currently available to the generator which minimizes the
72. Id. •
73. Id.
74. NELC. supra note 4, at 6. See also OTA II, supra note 31, at 9.
75. 42 U.S.C. §§ 690l-92(k) (1988).
76. It has been asserted that not all methods of "hazardous waste minimization" consti-
tute pollution prevention since one of the ways to minimize the amount of hazardous
waste that is generated bv a process is to .treat the hazardous waste after it is generated,
creating an equivalent or larger amount of non-hazardous waste. See OTA II, supra note
31. at 20-25; NELC. supra note 4, at 5.
77, Pub. L. No. 98-616, 98 Stat. 3221 (1984) (codified in scattered sections of 42
L'S-.C.).
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167
present and future threat to human health and the environ-
ment."78 HSWA imposes a similar certification requirement on
generators that treat, store, or dispose of their waste at the site of
generation. For these hazardous waste management facilities, the
certification requirement is a condition of any permit issued.79
The generator certification requirements of HSWA are very
modest. They only apply to generators of hazardous waste, and
only require generators to certify that they have a hazardous
waste minimization program in place. HSWA does not specify
what must be included in a hazardous waste minimization pro-
gram.80 Additionally, generators are not required to certify that
their program will achieve a specific, verifiable amount of waste
minimization. Rather, they must merely certify that their pro-
gram, will reduce the volume and toxicity of hazardous waste "to
the degree determined by the generator/to be economically prac-
ticable."81 This certification requirement is not very stringent, es-
pecially in light of the fact that HSWA's legislative history
counsels that the term "economically practicable" is to be defined
78. 42 U.S.C. § 6922 (b) (1988). The certification must be included on the hazardous
waste "manifest" that generators of hazardous waste are required tp.utilize whenever they
ship hazardous waste off-site to a treatment, storage, or disposal facility. Id. See also 40
C.F.R. § 262.20(a) (1990). . , " , , ,
Persons who'generate between 100 and 1000 kilograms of hazardous waste during a
calendar month ("small quantity generators") are-subject to a less stringent certification
requirement. In accordance with 42 U.S.C.A. § 692l(d) (West Supp. 1991), EPA only re-.
quires such generators to certify that they have "made'a good faith effort" to minimize
waste generation and: to select the "best waste minimization method that is available to
[the generator] and that [the generator] can afford." 40 C.F.R. § 262 app. (199Q).
79. 42 U.S.C..§ 6925(h) (1988). The certification must be recorded annually in the op-
erating record of the facility, and maintained in that record until closure of the facility'. 40
C.F.R. § 264.73(b)(9) (1990)., '
80. EPA has, however, imposed non-binding guidance.on the elements of a waste mini-
mization program. .54 Fed. Reg.-25,056 (1989). The guidance suggests that a waste mini-
mization program should (a) be institutionalized on a company-wide level through
policies,'goals, ,or publicity, (b) include a waste accounting system to trace waste genera-
tion, (c) include a system for assessing waste minimization opportunities, (d) factor waste
management costs into production costs allocated among the various departments within
the company, (e) encourage technology transfer on waste minimization within .the com-
pany and with outside organizations, and (f) include periodic reviews of the program for
effectiveness. Id. at 25,057. '- - '
81. 42 U.S.C. §§ 6922(b)(V). 6925(h)(l) (1988).; As noted above, small quantity genera-
tors of hazardous waste are held to a less stringent standard, and are only required to
certifv that they have made a "good faith effort" to minimize hazardous waste. See supra
note 7.8. ' • . ' • '
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
and determined by the generator and is not subject to review by
EPA.82
In addition to adding waste minimization certification require-
ments to RCRA, HSWA amended the reporting requirements of
RCRA to require hazardous waste generators to identify, in bien-
nial reports, the efforts that the generator undertook to reduce
the volume and toxicity of hazardous waste that it generated, and
the changes in volume and toxicity of hazardous waste generation
that it actually achieved.83 HSWA did not, however, impose af-
firmative duties on hazardous waste generators to commit to
achieving specific degrees of waste minimization, or to using spe-
cific waste minimization techniques. Due to their deficiencies, the
waste minimization provisions added by HSWA have only had a
minor impact on the growth of pollution prevention.84
B. EPA's Pollution Prevention Policy
Five years after Congress took the modest steps in HSWA, EPA
issued a proposed pollution prevention policy statement which
details, in broad terms, the Agency's view of the future role of
82. S. REP. No. 284, 98th Cong., 1st Sess. 66 (1983).
83. 42 U.S.C. § 6922(a)(6)(C)-'(D) (1988). The statutory requirement is imposed on
generators who ship, hazardous waste off-site to a treatment, storage, or disposal facility,
see 40 C.F.R. 262.41(a)(6)-(7) (1990), and on generators who treat, store, or dispose of
hazardous waste on-site. see 40 C.F.R. 264.75(h)-(i) (1990).
84. EPA analyzed the impact of the HSWA waste minimization provisions in a July 1990
report analyzing the implementation of RCRA. U.S ENVIRONMENTAL PROTECTION AGENCY,
THE NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM AT A CROSSROADS: THE RCRA
IMPLEMENTATION STUDY (1990). The report detailed several weaknesses of the waste mini-
mization provisions and EPA's enforcement of those provisions. For instance, the report
noted that EPA has consistently viewed enforcement of the generator reporting require-
ments in RCRA as a low priority. Id. at 60. In the report, EPA stressed that the Agency
needs to place more emphasis on verifying the receipt and quality of waste minimization
reports from generators'and needs to take enforcement actions against generators who do
not file waste minimization reports or who file clearly erroneous reports. Id. at 57.
The report also lamented the Agency's lack of progress in implementing the generator
certification requirement in RCRA through treatment, storage, or disposal facility permits.
Id. at 54. EPA attributed the inaction to the fact that the permit conditions requiring waste
minimization programs, and the Agency's guidance on such programs, are so general that
it is difficult to distinguish between acceptable and unacceptable waste minimization pro-
grams. Id. EPA also reported that since generators are not formally required to implement
waste minimization programs, but only to have them in place, the Agency has been reluc-
tant to proceed with any enforcement action based on possible deficiencies in waste mini-
mization programs. Id. To improve the implementation and enforcement of the
generator certification requirements, the Agency recommended strengthening the regula-
tory provisions addressing waste minimization programs and making those provisions
more specific and. thus, more enforceable. Id.
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169
pollution prevem,on
olic is not egally
posed policy
revoluuon, signaling a
from reactlon
te poHcy
the degree of environmental P™^ hat further improve-
through 'pollution control technology and th ^ dis.
^nts'm'env.ronmental quality ^can be^hu ^^ of
charges or emissions through the imp tedmologies.?7- .
eduction and environmental y ^^^, often transfers
The pollution control -PP^^X while pollution prevcn-
y eUmmating or r^ng
pollution prevention, the poUq ' a^n°U coordinate the Agency s.
Pollution Prevention Office m EP A to c^ ^^^ £pA>s
pollution prevention ^"J£X^for technkal iaforma;
plan to establish a nauonal d^«g? ion revent1on and
Son and technology ™$n™%£*£ and local governments
the Agency's goal o^ working with sta hasizing the op-:
and industries "to effect ^^^JLarion/.r ' "' - .
portunities and -benefits of pol utior ip pollution
With regard to its legal signlfican^;;; ^^J. However, the
plention" policy js little more ^^^/^encal shift in EPA' s
policy sets forth the foundation fi*a t ^ t ap.
mental regulatory P01! ollution prevention ap-
85. 54 Fed,Reg. 3845 (1989).
'
final
acuon
OTA II. supra note 31, at
88. 54 Fed. Reg, at 3846..
89. W. at 384". . .
90. Id. , ' '••
5/
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
barked in the 1990s: It is the framework upon which those efforts
have been built.
• C. The Pollution Prevention Act of 1990
The federal government's most aggressive attempt to refocus
environmental protection regulation from pollution control to
pollution prevention occurred in the waning hours of the 101st
Congress, when Congress enacted the Pollution Prevention Act
of 199091 as part of the Omnibus Budget Reconciliation Act of
1990.92 Like EPA's pollution prevention policy, though, the Pol-
lution Prevention Act is largely symbolic, and its real power will
be to create a legislative framework upon which future pollution
prevention efforts can be built. The legislative history of the Act
describes it as a "first step" towards accomplishing the pollution
prevention objectives of the Act, and notes that "additional steps
may be necessary to undertake a comprehensive pollution pre-
vention program."93 • '
The central theme of the Pollution Prevention Act ("Act") is
that measures are required on the federal level to stimulate volun-
tary pollution prevention,94 but that mandatory pollution preven-
tion is neither required nor desirable.95 The basic policy of the
Act is articulated in section 2(b),96 which establishes pollution
prevention through source reduction as the top priority in a na-
91. Pollution Prevention Act of 1990, Pub. L. No. 101-508, §§ 6601-10, 104 Stat. 1388.
1388-321 to 1388-327 (codified at 42 U.S.C.A. §§ 13101-09 (WestSupp. 1991)). The Act
was originally introduced in both houses of Congress on June 25, 1987, as the Hazardous
Waste Reduction Act. See S. 1429, 100th Cong.. 1st Sess. (1987); H.R. 2800, 100th Cong.,'
1st Sess. (1987). It was reintroduced in the 101st Congress on March 15, 1989, see S. 585,
101st Congress, 1st Sess. (1989), H.R. 1957, 101st Cong., 1st Sess, (1989), and was finally
reported out of the Senate Committee on the Environment and Public Works on October
12, 1990. S. REP. No. 526, supra note 12, at 2.
92. Pub. L. No. 101-508, 104 Stat. 1388 (1990),
93. S. REP. No. 526, supra note 12, at 1-2. The Senate Report for the Act also notes that
Congress intends to revisit pollution prevention in the context of RCRA reauthorization.
Id. Indeed, legislation introduced by Sen. Max Baucus on April 25, 1991, to reauthorize
RCRA included pollution prevention provisions to supplement the Pollution Prevention
Act. S. 976, 102d Cong., 1st Sess. (1991).
94. S. REP. No. 526. supra note 12, at 1.
95, A 1987 report on pollution prevention by the Congressional Office of Technology
Assessment suggested that prescriptive measures would be "technically infeasible and ad-
ministratively impractical." OTA II, supra note 31, at 2.
96. Pollution Prevention Act § 6602(b), 42 U.S.C.A. § 1310I(b) (West Supp. 1991).
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From Reaction to Proaction
171
tional pollution management hierarchy.97 The Act clarifies that
source reduction is different from, and preferable to, recycling.98
Section 4 of the Act99 details EPA's responsibilities, which pri-
'marily consist of: (I) publicizing and facilitating voluntary pollu-
tion prevention, and (2) collecting and analyzing data to develop
and refine a comprehensive pollution prevention program.
Under this section, EPA must establish an Office of Pollution Pre-
vention within the Agency.100 Section 4 also requires the Agency
to develop a pollution prevention strategy, including measures to:
(1) establish standardized* methods of measuring source reduc-
tion, (2) review the Agency's regulations and coordinate the activ-
ities'of the Agency and other federal agencies to promote source
reduction, (3) develop improved methods of collecting and dis-,
seminating data under federal environmental laws, (4) facilitate
the adoption of source reduction by businesses through the es-
tablishment of a national clearinghouse and through grant pro-
97 Section 2 (b) declares it to be national policy that:
pollution should be prevented or reduced at the source whenever feasible; pollution
that cannot be prevented should be recycled in an environmentally safe manner,
whenever feasible; pollution that cannot be prevented or recycled should be treated in
an environmentally safe manner, whenever feasible; and disposal or other release into
the environment should be employed.only as a. last resort and should be conducted in
an environmentally safe manner. ' ^,
98 Id The Pollution Prevention Act defines sour.ce reduction as "any practice which (i)
reduces "the amount of any hazardous substance, pollutant or contaminant entering any
waste stream or otherwise released into the environment (including fugitive emissions)
prior to recycling, treatment or disposal; and (ii) reduces the hazards to public health and the
environment associated with the release of such substances, pollutants or contaminants."
Pollution Prevention Act § 6603(5)(A), 42 U.S.C.A. § 13102(5)(A) (West Supp. 1991) (em-
phasis added). . . - ' .
Under the Act, source reduction "includes equipment or technology modifications, pro-
cess or procedure modifications, reformulation or redesign of products, substitution of
raw materials, and improvements in housekeeping, maintenance, training or inventory
control " Id. However, source reduction does hot include "any practice which alters the
physical chemical or biological characteristics or the volume of a hazardous substance,
pollutant or contaminant through a process which itseifis not integral to and necessary for
the production of a product or the providing of a service." Id. § 6603(5)(B), 42 U.S.C.A.
§ 13102 (5)(B) (West Supp. 1991). - /
The distinction drawn in the Act betWeen source reduction and recycling is significant
' because EP.Vs historical use of the terms "source reduction" and "recycling" in its defini-
tion of waste minimization implied that the approaches were equivalent forms of pollution
management'. 54 Fed. Reg. 25.056(1989). ,. . •
99 Pollution Prevention Act § 6604, 42 U.S.C.A. § 13103 (West Supp. V991):
100 As noted above in the discussion of EPA's proposed pollution prevention policy.
EPA established ah Office of Pollution Prevention within the Agency prior to'the enact-
ment of the legislation. See iupra. note 89 and-accompanying text. . '
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172 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
• grams and technical assistance, (5) identify measurable goals for
source reduction, (6) identify and make recommendations to
Congress regarding ways to eliminate barriers to source reduc-
tion, (7) develop, test, and disseminate model source reduction
auditing procedures, (8) identify opportunities to use federal pro-
curement to encourage source reduction, and (9) establish an an-
nual award program to recognize companies that operate
outstanding or innovative source reduction programs.101
Section 5 of the Act establishes a federal grants program, au-
thorizing EPA to make matching grants to states to enable them
to establish technical assistance programs to promote source re-
duction by •businesses.102 Consistent with the general tenor of
the Act, the legislative history stresses that the purpose of the
grant program is to promote the voluntary use of source reduc-
tion technology by businesses.103 In another move to encourage
voluntary source reduction, the Act requires EPA to establish an
information clearinghouse on source reduction technology and
grant programs, and to make the data in the clearinghouse avail-
able for retrieval by any person.104
While the central focus of the Act is on voluntary pollution pre-
vention by industry, the Act ddes include mandatory source re-
duction reporting requirements.105 Building on the structure
established by SARA Title til,106 section 7 of the Pollution Pre-
vention Act requires each owner or operator of a facility that is
required to file a toxic chemical release form under SARA Title
III to include, on that form, information regarding the source re-
duction and recycling activities undertaken at the .facility in, the
previous year for each toxic chemical for which reporting is re-
quired.107 All of that information is then made available to the
101. Pollution Prevention Act § 6604(b), 42 U.S.C.A. § 13103(b) (West Supp. 1991).
102. Id. § 6605, 42 U.S.C.A. § 13104 (West Supp. 1991). However, the federal grant
cannot exceed 50% of the cost of the state program. Id. .
103. H.R. REP. No. 555, supra note 19, at 11.
104. Pollution Prevention.Act § 6606,42 U.S.C.A. § 13105 (West Supp. 1991). With
regard to funding, the Act authorizes an appropriation of $8 million to EPA for the 1991,
1992, and 1993 fiscal years for the grant program. An additional $8 million is appropri-
ated to EPA for those years to enable the Agency, to carry out its other duties under the
Act. Id. I 6610, 42 U.S.C.A. § 13109 (West Supp. 1991). -
105. Id. § 6607, 42 U.S.C.A. § 13106 (West Supp. 1991).
106. Ste 42 U.S.C. §§ 11001-50 (1988).
107. The information required to be reported on the toxic chemical release form pursu-
ant to section 7(b) of the Pollution Prevention Act includes: (1) the amount of the chemi-
cal entering the waste-stream prior to recycling, treatment, or disposal during the year and
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public to the same extent as information submitted under SARA
Title III.108 Section 7 of the, Act also provides that the civil and
administrative penalty and citizen suit provisions of SARA Tide
III are applicable to the reporting requirements of the Pollution.
Prevention Act to the same extent as they apply to the reporting
requirements of SARA Title III.109 .
Finally, section 8 of the Act requires EPA to provide reports to
Congress: (1) analyzing the source reduction achieved on an in-
dustry by industry basis, (2) analyzing the usefulness of data col-
lected under the Pollution Prevention Act to measure source
reduction trends, (3) identifying barriers to source reduction and
suggesting methods of promoting and assisting source reduction,
(4) identifying industries and pollutants that require priority
assistance in pollution prevention, (5) identifying priorities for re-
search and development, (6) evaluating data collection under fed-
eral environmental laws arid suggesting ways to improve public
access t.o that data, and (7) evaluating the cost and technical feasi-
the percentage change from the prior year, (2) "the amount of the chemical from the
facility which is recycled'during the year, the source reduction practices used with respect
to the chemical during" the year, the percentage change from the,previous year, and the
process of recycling used at the facility, (3) the amount of the chemical expected to enter
the waste stream and to be recycled in the two years subsequent to the reporting year, and
(4) "a ratio of. production in the reporting year to production in the previous year; the
techniques which were used to identify source reduction opportunities, and information
regarding'releases into the environment which resulted in a catastrophic event, remedial
action,-or other one-time event, and is not,associated with production processes during
the reporting year or treatment of the chemical at the facility and the. percentage change
from the previous year." Pollution, Prevention Act § 6607(b), 42 U.S.C.A. § 13106(b)
(West Supp. 1991). , , ',"••-. • '
In addition to the information required by section 7(b) of the Act, persons required ,to
file toxic chemical release forms may include additional information on the form regarding
source reduction, recycling and other pollution control techniques employed in prior
years. Id. § 66Q7(d), 42 U.S.C.A. § 13106(d) (West Supp. 1991). '
108. Id. § 6607(e), 42 U.S.C.A. § 13106(e) (West Supp. 1991). Section 7(e) of the Act .
provides that the trade secret provisions of SARA Title III, 42 U.S.C. § 11042 (1988),
applv to data collected pursuant to the Pollution-Prevention Act. Id.
109. Section 7(c) of the Pollution Prevention Act, § 6607(c), 42 U.S.C.A. § 13106(c)
(West Supp. 1991), states that the provisions of sections 322. 325(c), and 326 of the
Superfund Amendments and Reauthorization Act ("SARA") "apply to the reporting re-
quirements of" the Pollution Prevention Act "in the same manner as to the reports re-
quired under section 313" of SARA. Section 325(c) of-.SARA. 42 U.S.C. § 11045 (1988),
provides for civil and administrative penalties for. violations of the reporting requirements
of that law., vshile s.ection'326 of SARA. 42 U.S.C. § 1 1046 (1988), authorizes citizens suits
against persons (hat'fail to complete or.submit toxic chemical release forms under SARA
Title III - ' : . . • •'. •
5:
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174 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
bility, by industry and process, of various source reduction
opportunities.110 -
In early 1991, EPA drafted a comprehensive three-year plan for
conducting research on pollution prevention techniques and ap-
proaches.111 The Agency's Science Advisory Board ("SAB") was
not, however, impressed with the research plan when it initially
reviewed the draft. The SAB indicated that the draft plan needed
better agency direction, clearer definitions, and a stronger em-
phasis on ecological impacts.112
The Pollution Prevention Act of 1990 is the most complete leg-
islative treatment of the pollution prevention issue. Subsequent
treatment of the issue by EPA has added to the foundation cre-
ated by Congress in the Act.
D. Pollution Prevention Strategy
Shortly after Congress passed the Pollution Prevention Act,
EPA published a draft pollution prevention strategy, setting forth
the Agency's agenda for action to implement the Act and to foster
the growth of pollution prevention.113
One of the central features of the strategy is EPA's Industrial
Toxics Project.114 Under that initiative, EPA targets seventeen
toxic pollutants115 generated by manufacturing industries. The
Agency then contacts the major sources of releases of those pollu-
tants in an effort to get the facilities to voluntarily commit to re-
ducing the amount of targeted pollutants they release.116
110. Pollution Prevention Act § 6608(b), 42 U.S.C.A. § 13107(b) (West S'upp, 1991).
111. EPA Research—Scientific Panel Faults Five-year Plan for Inconsistency, INSIDE EPA'S EN-
VIRONMENTAL POLICY ALERT, April 17, 1991, at 39.
112. Id.
113. 56 Fed. Reg. 7849 (1991). EPA's draft pollution prevention strategy is the
Agency's first step towards satisfying its duty to develop a pollution prevention strategy
pursuant to section 4 of the Pollution Prevention Act, Id.
114. Id. at 7851.
115. The pollutants were selected from the list of pollutants for which reporting is re-
• quired under SARA Title III. Id. The criteria for selection of the pollutants was that they
present significant risks to, human health and the environment and that there be potential
opportunities to reduce the risks through pollution prevention measures. Id. The seven-
teen pollutants chosen by EPA are benzene, cadmium, carbon tetrachloride, chloroform,
Chromium, cyanide, dichloromethane, lead, mercury, methyl ethyl ketone, methyl isobutyl
ketone, nickel, tetrachloroethylene, toluene, 1,1,1-trichloroethane, trichloroethylene, and
xylene. EPA (,'nveils Pollution'Prevention Strategy, POLLUTION PREVENTION NEWS, Jan.-Feb.
1991. at 1, 8. ,
116, EPA identified the major industrial sources through review of the data reported
under SARA Title III. 56 Fed. Reg. at 7851.
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' From Reaction to Proaction
175
Through the initiative, EPA hopes to reduce aggregate environ-
mental releases of the targeted pollutants by a third from 1988
levels by the end of 1992, and by at least fifty percent from 1988
levels by,the end of 1995.m The fundamental goal of the initia-
tive is to" determine whether voluntary pollution prevention ef-
forts can yield significant reductions in pollution.118 While the
Industrial Toxics Project only focuses on pollution prevention in
the manufacturing sector, EPA intends ,to develop similar initia-
tives in conjunction with other federal agencies to address pollu-
tion prevention in the agriculture, energy, transportation, and
municipal water and wastewater sectors, and to address pollution
prevention at federal facilities.119 v
EPA's proposed enforcement strategy120 is noteworthy because
it focuses on, mandatory, rather than voluntary, pollution preven-
tion. As part of the strategy, EPA anticipates including conditions
in administrative and civil settlements of enforcement actions that,
require firms to adopt pollution prevention practices either as a
means of correcting violations of environmental protection laws
or in exchange for reduced fines and penalties for violations of
those laws.121
117. Id.. Progress toward the reduction goals will be.measured through a review of the
data submitted by the industrial sources under SARA Title III. Id.
118. Id. . " ; -
119. 56 Fed. Reg. at 7850; EPA focused on the manufacturing sector in the Industrial
Toxics Project because the Science Advisory Board identified toxic pollutants generated
by the manufacturing sector as presenting serious threats to human health and the envi-
ronment, and because the manufacturing sector is the focus of most of EPA's regulatory
activities.'_ Id. at 7852. <. .
120. Id. at 7859. EPA notes that "enforcement,generally creates xan environment in
which permanent solutions, such as eliminating some pollutants entirely, may be preferred
to less reliable approaches to compliance." Id. ••' .
•. 121. Id. As described in the strategy,- EPA's Office of Enforcement is developing an
interim policy on the inclusion of pollution prevention conditions in enforcement settle-
ments. Id. The policy will encourage EPA to include single-media or cross-media pollu-
tion prevention conditions in settlements, either to correct violations or as additional
conditions of settlements incidental to injunctive relief, "especially when [the conditions]
offer the best chance of avoiding recurring or future violations, have no negative cross-
media impacts, and technologically and economically feasible options exist," Id. The pol-
lution prevention conditions will be included in settlements as additional requirements
beyond mandatory civil, penalties. Id.
EPA has alreadv begun to impose pollution prevention conditions in civil and adminis-
trative settlements. Eor instance, on January 4, 1990, in settling a complaint against
Sherex Polymers. Inc.. a company charged with manufacturing a chemical substance in
violation of section 5 of the Toxic Substances Control Act, 15 U.S.C. §§ 2601-71 (1988)
("TSCA"). EPA reduced the civil penalty that it had proposed to impose on Sherex by 5%
57
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176 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
Another interesting aspect of EPA's. pollution prevention strat-
egy is the Agency's commitment to encourage voluntary pollution
prevention through "regulatory flexibility."122 One of the ways
that the Agency intends to use regulatory flexibility to encourage
pollution prevention is to streamline the regulatory and adminis-
trative procedures for testing and applying pollution prevention
technologies.123 The Agency will also categorize the rules that it
publishes over the next two to three years according to the manu-
facturing or non-manufacturing sectors that will be affected by
the rules, and notify sources in each sector of the proposed
rules.124 Presumably, the early notification and the streamlined
process for approval of pollution prevention technologies will en-
courage industries to invest in pollution prevention technology in
order to avoid the expense of treating and controlling pollution
in accordance with impending regulations.125
As an additional means of encouraging pollution prevention
through regulatory flexibility, EPA commits, in, the strategy, to-
examine and utilize flexible approaches to pollution prevention
similar to the emissions reduction provisions in the Clean Air Act
Amendments of 1990,126 whenever authorized by law.127 Under
the Clean Air Act amendments, EPA can delay implementation of
certain statutory pollution control requirements for facilities that
voluntarily commit to reducing emissions of sulfur dioxide by
ninety percent.128
($42,000) in exchange for a commitment by the company to implement a pollution pre-
vention project at its Lakewood, Florida plant. 56 Fed. Reg. at 7860-61.
Similarly, on August 7, 1990, the'Chief Judicial Officer approved a consent agreement
and consent order between EPA and 3-V Chemical Corporation in a TSCA administrative
enforcement action that imposed pollution prevention responsibilities on 3-V Chemical.
Id. at 7861. Pursuant to the order, 3-V was required to pay a $300,000 civil penalty and to
purchase and install a solvent recycling system at its South Carolina manufacturing facility,
to implement a leak detection program for fugitive emissions of the solvents to be re-
cycled, and to report annually to EPA regarding those pollution prevention efforts. Id.
" 122. 56 Fed. Reb. at 7859.
123. Id. at 7850!
124. Id. at 7859. . . .
125. Id.
126. Pub. L. No. 101-549, 104 Stat. 2399 (1990)(codified in scattered sections of 42
U.S.C.A.).
127. 56 Fed. Reg. at 7856.
128. See 42 U.S.C.A. § 765 l(c) (West Supp. 1991).
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From Reaction to,Proac,tion
177
The draft document also outlines EPA's research129 and public
participation strategies for pollution prevention,130 .and sets out
EPA's plans for institutionalizing pollution prevention within the
Agency131 and working with other federal agencies to institution-
alize pollution prevention.132 :
While the draft pollution prevention strategy primarily focuses
on EPA's plans for encouraging pollution prevention today and
prospectively, it also summarizes the Agency's past efforts. Specif-
ically, the strategy describes the creation of an Office of Pollution
Prevention,133 the establishment of a national pollution preven-
,129. 56 Fed. Reg. at 7850-51. The research plan described in the pollution prevention
strategy does not address specific research initiatives, but merely sets short and long-term
goals. The short-term goal is to focus research on methods of pollution prevention for
targeted high priority contaminants in the manufacturing sector. The long-term goal of
the strategy is to focus research on addressing social and economic obstacles to prevention
and opportunities for prevention in the non-manufacturing sector.
130. Id. at 7857-58. The public participation strategy cites studies by The Economist and
by EPA's Science Advisory Board which illustrate that the dissemination of information on
releases of toxic pollutants gathered under SARA Title III fosters public accountability of
industry, and plays a vital role in promoting pollution prevention by industry. The major
goal of EPA's public participation strategy is to improve the quality of, and accessibility to,
data on toxic Chemical use and releases. "".-'.
The public participation provisions also commit EPA.to working with the Federal Trade
Commission, the Office of.Consumer Affairs, and other federal agencies to explore the
possibility of establishing uniform standards or guidelines on the use of environmental
terms in advertising. Id. See also supra note 39. Finally, the strategy briefly describes EPA's
efforts to test methods of evaluating the environmental consequences of consumer prod-
ucts. 56 Fed. Reg. at 7857. -See also supra note 36.
131. The strategy describes several methods of institutionalizing pollution prevention
within EPA, including the designation of special assistants for pollution prevention in each
Assistant Administrator's Office, and the .development of incentives and awards to en-
courage EPA staff to engage in pollution prevention efforts. 56 Fed. Reg. at 7851.
These measures seem rather modest in light of the criticisms expressed in the legislative
history of the Pollution Prevention Act regarding lack of institutional support for pollution
prevention within EPA. Specifically, OTA testified at hearings that EPA's efforts oh pollu-
tion prevention were scattered and uncoordinated, lacked permanent institutional sup-
port, and remained several layers below the Administrator. S. REP. No. 526, supra note 12,
at 4. The Senate Environment and Public Works Committee echoed OTA's concerns in its
report on the Act. Id. at 6. One might have expected a greater effort by EPA to dispel
these criticisms.
132. The strategy announces EPA's intention to work with other federal agencies to
explore the potential for pollution prevention in federal procurement and to develop ini-
uatives like the Industrial Toxics Project for other non-manufacturing sectors. 56 Fed
Reg. at 7851, • . ' ,
,133. Id. at 7855. The Office of Pollution Prevention was established in the-Agency's
Office of Policy, Planning, and Evaluation in 1988. S: REP. No! 526. supra note 12, at 4.,
When Congress, through the Pollutiorj Prevention Act, required EPA to establish an Of-
fice of Pollution Prevention, it .mended that the Office should be established within the
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178 COLUMBIA JOURNAL-OF ENVIRONMENTAL LAW [Vol. 17:153
tion clearinghouse,134 the development of an Agency-wide com-
petition for innovative pollution prevention projects,135 -the
administration of a grant program to support state efforts in pol-
lution prevention,136 and the development of pollution preven-
tion audit guides for industrial facilities.
EPA's pollution prevention strategy recognizes the central role
that pbllution prevention has assumed within EPA since William
Reilly was appointed Administrator,137 but it does not establish
an aggressive agenda. Like the Pollution Prevention Act, the
strategy is non-regulatory and focuses on encouraging and facili-
tating voluntary pollution prevention, rather than on requiring
mandatory pollution prevention. The strategy also stresses the
continued importance of mandatory pollution control as a means
of encouraging voluntary pollution prevention.138
Agency "in a manner to reflect the importance and multi-media significance of the func-
tions of the new office." Id. at 6. -
Consistent with that vision, on February 2&J991. Sen. John Glenn and 23 co-sponsors
introduced legislation to elevate EPA to a cabinet-level department. S. 533, 102d Cong.,
1st Sess. (1991). That bill required the establishment of an Office of Pollution Prevention
within the cabinet-level Department of the Environment. The Office would be supervised
by an Assistant Secretary for Pollution Prevention, at the same level as the Assistant Secre-
taries for the Offices for the various media, such as air and water. Clam Offers EPA Cabinet
Bill With Pared Down Statistical Bureau Provisions, INSIDE EPA WEEKLY REPORT, March 15,
1991, at 16.
134. The Pollution Prevention-Information Clearinghouse consists of a hotline; a repos-
itory of texts, manuals, fact sheets, case studies, and legislation; and the Prevention Infor-
mation Exchange Service, a computerized conduit to databases, information exchange,
and document ordering. 56 Fed. Reg. at 7857. The clearinghouse can be reached by
calling 1-800-242--9346 or (202) 382-3000.
135. Through the '"2% prevention competition," EPA set aside 1% of its 1991 fiscal
year contract funds (approximately'$12 million) for an intra-agency competition to de-
velop pollution prevention initiatives. Id. at 7855. Awards were presented for 25 innova-
tive projects. Id. ,
136. In the 1989 and 1990 fiscal years, EPA awarded $11 million in grants to 40 differ-
ent states for pollution prevention programs. Id. at 7855. The Agency has also estab-
lished a program to provide pollution prevention grants directly to small businesses. The
"Pollution Prevention By and For Small Business Grant Program," administered for EPA
by the Center for Hazardous Materials Research at the University of Pittsburgh, awards
grants up to $25,000 to assist small businesses in developing and demonstrating new pol-
lution prevention technologies. Small Business Awards, POLLUTION PREVENTION NEWS, Nov,-
Dec. 1990, at 8. ,
137. 56 Fed. Reg. at 7852 (indicating that "over the last two years, EPA Administrator
William Reilly has made pollution prevention one of the Agency's top priorities").
138, Id. at 7850. ,
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IV.
From Reaction to Proaction
179
ANALYSIS OF THE POLLUTION PREVENTION ACT AND FEDERAL
_ POLLUTION PREVENTION EFFORTS.
Since 1987, several states have enacted aggressive laws that re-
quire industries to prepare and implement pollution prevention
plans and meet specific goals for reductions in pollution.139 Leg-
islationxin Massachusetts, for instance, authorizes the State to es-
tablish mandatory pollution prevention performance standards
for priority industries.140 State legislatures have provided citizens
with central roles in implementation and enforcement of pollu-
tion prevention laws by mandating public participation in pollu-
tion prevention planning, and by authorizing citizens to file law
suits to enforce planning and reporting requirements.141 In con-
trast, the federal Pollution Prevention Act is a more modest, al-
most laissez-faire, approach to pollution prevention.
The key aspects of the Act are its definitions, focus on voluntary
rather than mandatory compliance, lack of a planning require-
ment, and minimal reporting requirements. The Act also has
many shortcomings, including its failure to: (1) provide adequate
funding, (2) provide a specific enforcement role for citizens and
employees, (3) establish specific goals, and (4) provide for regula-
tory incentives whereby EPA could reduce pollution control re-
quirements in exchange for pollution prevention by industry.
A. Definition ,
The success of pollution prevention legislation is intimately
tied to, the definition of the conduct that the legislation intends to
encourage. As explained in this section, pollution prevention
takes many forms.
Congress and EPA's early pollution prevention efforts focused
on "waste minimization," reduction of the volume or quantity •
and toxicity of hazardous waste by generators.142 As interpreted
by EPA, waste minimization includes practices designed to elimi-
nate the generation of waste, and all forms of recycling and treat-
ment that occur after waste is generated and that reduce the
.139. See supra note .26. " : - •'-. • .
140. MASS. GEN. LAWS ANN. ch. 211. § 15 (West'Supp. 1991).
141. See, e.g., CAL,.HEALTH & SAFETY CODE § 25244.21(c) (West Supp. 1991); ME. REV,
.STAT. ANN. ut. 38. § 2306 (West Supp. 1990); MASS. GEN. LAWS ANN. ch. 211, §§ 5(H),.
11(E). -18(B.). L8(C) (West Supp. 1991).. : "
142. 42 U.S.C. § 6925(h) (1988). • ..-..,
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
volume and toxicity of the waste.143 Since waste minimization re-
quirements can be satisfied through the use of treatment and re-
cycling technologies, waste minimization does not necessarily
encourage a reduction in the volume and toxicity of waste that is
generated, but could merely lead to a reduction in the volume
and toxicity of waste requiring disposal.144 Because waste treat-
ment and recycling may also create health, safety, and environ-
mental hazards, waste minimization measures often shift the
hazards of waste management rather than eliminating them.
Rather than referring to "waste minimization," the Pollution
Prevention Act addresses "source reduction."145 Source reduc-
tion consists of practices that reduce the .amount of hazardous
substances, pollutants; or contaminants entering the waste stream
or being released into the environment prior to recycling, treat-
ment, or disposal and that reduce the hazards to public health
and the environment associated with the release of such hazard-
pus substances, pollutants, or contaminants.146 By specifying'that
recycling, treatment, and disposal are not source reduction prac-
tices and by focusing on pollutants and contaminants in general
rather than merely on hazardous waste, the definition of "source
reduction" is a clear break with the pollution control focus of the
past and a shift toward true pollution prevention.147
143. OTA II, supra note 31, at 1, 6. .
144. OTA postulates that the ability of industry to satisfy waste minimization require-
ments through recycling and treatment may actually inhibit a reduction in the generation
of waste. OTA II, supra note 31, at 1. The historical record indicates that there is a "ten-
dency in government and industry to opt for post-generation pollution controls instead of
prevention." Id. at 20.
145. Pollution Prevention Act §§ 6602, 6603(5), 42 U.S.C.A. §§ 13101, 13102(5) (West
Supp. 1991).
146. Id. § 6603(5)(A),'42 U.S.C.A..§ 13102(5)(A) (West Supp. 1991). "The term in-
cludes equipment or technology modifications, process or procedure modifications, refor-
mulation or redesign of products, substitution of raw materials, and improvements in
housekeeping, maintenance, training, or inventory control." Id.
147. The Act defines "source reduction" in terms of practices that occur prior to re-
cycling, treatment, or disposal. Id. § 6603(5)(A)(i), 42 U.S.C.A. § 13102(5)(A)(i) (West
Supp. 1991). The definition also provides that "source reduction" does not include "any
practice which alters the physical, chemical, or biological characteristics or the volume of a
hazardous substance, pollutant, or contaminant through a process or activity which itself is
not integral to and necessary for the production of a product or the providing of a ser-
vice." Id. § 6603(5)(B), 42 U.S.C.A. § 13102(5)(B) (West'Supp 1991). The term is essen-
tiallv the same as the term "waste reduction," which OTA described in its 1987 report as
consistent with pollution prevention goals. OTA II, supra note 31, at 5, 20.
The Pollution Prevention Act does, however, address recycling, citing it as the second
most desirable means of managing pollution in a hierarchy of pollution management op-
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From Reaction to Proaction
181
Some commentators have suggested that legislation mandating
both pollution control and pollution prevention requirements
sends a mixed signal to industry about the importance of pollu-
tion prevention.148 While this concern is valid, pollution preven-
tion will not eliminate the need for pollution control. No matter
how successful pollution prevention measures are, they will never
completely eradicate pollution. Therefore, pollution control may
be addressed in pollution prevention legislation if the legislation
clarifies that pollution control is a last resort. The pollution pre-
vention hierarchy in the Pollution Prevention Act is a good exam-
ple of the proper way to correlate pollution control with pollution
prevention in legislation.I49 This approach is very different from
an approach that allows companies to achieve reductions in pollu-
tion generation either through pollution control or pollution pre-
vention, in which case the companies, can. ignore pollution
prevention and focus solely on pollution control.
Another form of pollution prevention that is gaining popularity
at the state level is "toxics use reduction."150 Instead of focusing
on reducing the volume of waste generated or decreasing the
number of releases of pollutants, toxics use reduction concen-
trates on reducing the use of toxic chemicals in the first place.151
tions. Pollution Prevention Act § 6602(b>i-42 U.S.C.A. § 13101(b) (West Supp. 1991).
The Act also requires persons to provide EPA with reports on recycling activities that they
have implemented. Id. § 6607, 42 U.S.C.A. § 13106 (West Supp. 1991),
148. Ste NELC, supra note 4, at 17. Several of the panelists that participated in the
NELC study argued that the success of pollution prevention legislation "relies on a funda-
mental reorganization of companies and agencies such that production process engineers,
workers, and product designers take the lead on environmental protection." Id. at 13.
Such a reorganization, the panelists argued, is less likely to occur if pollution control is
(riven an important focus at the same time that companies consider pollution prevention
options. Id. '
149. Pollution Prevention Act § 6602(b), 42 U.S.C.A, § 1310l(b) (West Supp. 1991),
150. See, e.g., ME. REV. STAT. ANN. tit. 38, § 2301 (West Supp. 1990); MASS. GEN. LAWS
ANN. ch. 211, § 2 (West Supp. 1991); OR. REV. STAT. § 465.003(13) (1989).
151. The National Environmental Law Center and Center, for Policy Alternatives
("NELC:') developed a model "toxic use reduction" definition'as part of its 1990 report
on state toxic use reduction laws. NELC, supra note 4, at B-l. NELC suggested that the
term should be denned as "in-plant changes in production processes or raw materials that
reduce,'avoid, or eliminate the use of toxic or hazardous substances or the generation of
hazardous by-products per unit of product, so as to reduce the risks to the health of work-
ers, consumers or the environment, without shifting risks among workers, consumers or
parts of the environment." Id., NELC also suggested that "[t]he definition should specify
that such changes could be accomplished through input substitution, product reformula-
tion, production process redesign or modification, production process modernization, im-
proved production process operation and maintenance, or in-process recycling, reuse or
extended use of toxics bv using equipment integral to the production process." fii. Fi-
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182 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
Proponents of toxics use reduction point out that toxic chemicals
create hazards other than those caused by releases or the mishan-
dling of wastes.152 For example, the use of toxic chemicals by in-
dustry creates transportation and workplace hazards and may
endanger consumers if toxics are incorporated into consumer
products.153 Toxics use reduction, it is argued, prevents toxic
hazards in the workplace or the home in a way that source reduc-
tion cannot.154 .
Toxic use reduction can work in tandem with source reduction.
In fact, the RCRA reauthorization legislation introduced by Sena-
tor Max Baucus addresses both forms of pollution prevention.155
This approach encourages pollution prevention in its broadest
forms, providing considerable health and safety benefits in. a cost
effective manner. It is an example of the kind of approach Con-
gress should take in future pollution prevention legislation.
B. Voluntary Focus v. Mandatory Focus . .
Central to the Pollution Prevention Act is the principle that vol-
untary pollution prevention efforts by industry will be adequate to
achieve the ambitious reductions in pollution envisioned by the
drafters of the Act.156 Reports from EPA and OTA significantly
shaped the Act by indicating that voluntary efforts would be more
effective in achieving pollution prevention than mandatory, regu-
nally NELC suggested that the definition of the term should specifically exclude incinera-
tion,'transfer from one medium of release to another, off-site or out of prbcess waste
recycling, or cnd-of-pipe treatment. Id.
152. Id. at 5. See also USPIRG, supra note 17, at 2.
153. See NELC, supra note 4, at 5; USPIRG, supra note 17, at 2, 14-16.
154. See NELC, supra note 4, at 5; USPIRG, supra note 17, at 2-3.
155. In the proposed legislation, "toxic use and source reduction" is defined as "any
practice process or activity that reduces or eliminates the quantity and toxicity of hazard-
ous substances used in production processes or generated as solid or hazardous waste
during production activities prior to recycling or solid or hazardous waste management."
S 976, 102d Cong., 1st Sess. § 104(43) (1991). The proposal also specifies that the term
"includes, but is not limited to, equipment modifications; process changes; materials or
feedstock substitution; design modifications; technological modifications in the production
activities including housekeeping practices, training and inventory controls; operating effi-
ciencies; product reformulation and product redesign." Id. The proposal specifies that
the term "does not include hazardous and solid waste management, or physical, chemical,
or biological treatment designed to prevent releases of hazardous substances that have
been produced or otherwise created." Id. While the proposed definition does not incor-
porate all of the suggestions of the NELC, it is a good first step towards a workable defini-
tion of toxics use and source reduction.
156. S. REP. No. 526. supra note 12, at 1.
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From Reaction to Proaction
183
latbry efforts.15? The general conclusion of the EPA and OTA'
reports, and the basic premise of the Pollution Prevention Act, is
that the primary obstacle to pollution prevention is ignorance
among industry managers about the benefits of pollution preven-
tion.158 EPA and OTA.argue that increased dissemination of in-
formation about pollution prevention opportunities will result in
widespread voluntary pollution prevention.159 To the extent that
pollution prevention makes economic sense for companies and
firms are ignorant of the pollution prevention opportunities in
existence, the voluntary approach of the Pollution Prevention Act
may be a sufficient impetus for successful pollution prevention.160
Proponents of the voluntary approach to pollution prevention
suggest additional reasons why their approach is preferable to
mandatory efforts. First, there are presently no standard methods
for measuring or quantifying pollution prevention.161 Without
these methods, it is impossible to mandate specific quantitative
reductions in the amount of pollution generated by individual
polluters. Second, those who support voluntary pollution, pre-
vention argue that since EPA does not generally regulate indus-
trial production processes, it lacks the expertise to prescribe
mandatory pollution prevention techniques or measures for those
processes.162 Finally, supporters of the voluntary approach argue
that mandatory pollution prevention requirements will stifle inno-
vation163 and could reduce international competitiveness for
157. See OTA. supra tiote 9, at 4; OTA II, supra note 31, at 3; EPA REPORT, supra note 9,
at xxvi. OTA and EPA concluded in 1986 reports th'at the traditional regulatory approach
for achieving pollution prevention goals was not practical or feasible. OTA H, supra note
31, at 19. Both reports also noted that states and foreign governments had developed and
implemented effective pollution prevention programs that\were not based on mandatory,
regulatory measures. Id. .
158. See supra notes 57-58 and accompanying text.
159. See supra notes 57-58. _ .
160. As the OTA noted in its 1986 report, "waste represents inefficiency and ... to
reduce waste is to conserve materials that may be scarce, strategic or expensive." OTA,
supra note 9, at 12-13. ... '
161. See supra notes 61-63 and accompanying text.-
16_2. While EPA, in some sense, regulates industrial production processes under TSCA,
see infra notes 179-182 and accompanying text, the myriad of industrial processes for which
mandatory pollution prevention standards would have, to" be established as part of a
mandatory pollution prevention program could tax EPA's expertise and limited resources.
OTA. supra note 9, at 4.
163. Opponents of mandatory pollution prevention argue that if mandatory require-
ments are established, industry will only comply with the mandatory requirements, and will
not be motivated to -reduce their generation of pollution beyond those requirements.
STATE/EPA COMMITTEE, supra note 34. at 29. .;•'.'
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184 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
some American industries and products.164 This argument is un-
tenable, though, assuming the validity of Congress' and EPA's as-
sertions that pollution prevention measures and technologies
generally increase the efficiency of processes and the economic-
efficiency of companies that employ them.165
For these and perhaps other reasons, the Pollution Prevention
Act does not include mandatory pollution prevention require-
ments. However, EPA and OTA have not foreclosed the possibil-
ity of utilizing mandatory measures to achieve pollution
prevention.166 Compared with voluntary requirements,
mandatory pollution prevention requirements provide a greater
impetus for companies to find and implement pollution preven-
tion practices.
Several different types of mandatory pollution prevention re-
quirements could be implemented on the federal level.167 One
mandatory measure that has been considered by EPA and OTA is
the imposition of performance standards or operating procedures
for industrial processes.168 Under this approach, the standards
164. OTA, supra note 9, at 14.
165. See supra note 160. """
166. See OTA, supra note 9, at 55; EPA REPORT, supra note 9, at xiv - xviii. Both reports
focus on mandatory waste reduction, arguably one form of pollution prevention.
167. One recent proposal includes several innovative uses of mandatory requirements.
See S. 1081, 102d Cong., 1st Sess. (1991). The proposed Clean Water Act reauthorizatipn
legislation includes general provisions addressing pollution prevention by all point
sources, as well as specific provisions addressing pollution prevention by publicly owned
treatment works ("POTWs"). For instance, section 7 of the proposal would require EPA,
when establishing certain effluent guidelines and new source performance standards, to
"rely upoaand require, to the maximum extent practicable, toxic use and waste reduction
measures'and practices including changes in production processes, products or raw mater-
ials that reduce, avoid or eliminate the use of toxic or hazardous byproducts so as to re-
duce the overall risk of adverse effects to the health of workers and the public and to the
environment." Id. § 7.
Under section 12 of the proposed legislation, EPA would also be required to rely on
toxic use and waste reduction measures and practices in establishing pretreatment stan-
dards and limitations. Id. I 12. In addition, POTWs serving populations of greater than
50,000 persons would be required to develop "toxic reduction action programs." Id. § 14.
Two other sections of the proposal are especially noteworthy. Section 17 would pro-
hibit the issuance of a permit to discharge pollutants under the Act unless the permittee
-demonstrated "a need to discharge based upon a showing of the maximum use of meas-
ures, processes, methods, systems or techniques to eliminate the discharge altogether or
reduce the volume arid tpxicity of pollutants . . . within the economic capability of the
owner or operator." Id. § 17. Finally, section 25 of the proposal would require any permit-
tee who was required to file a toxic chemical release form under SARA Title III to conduct
an environmental audit of its facility. Id. § 25. '
168. Mandatory performance standards for pollution prevention are fundamentally dif-
ferent from mandatory performance standards in the federal air and water pollution laws.
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185
would be based on the best technology or pollution prevention
practices available for the process.169 Closely related to the
mandatory performance standards approach is a proposal that
would require industrial processes to achieve specific throughput
levels established by EPA.170 Both of these approaches have been
criticized on the ground that EPA lacks the resources or expertise
to set such standards.171 The throughput approach has been fur-
ther criticized on the ground that the lack of standard measuring
methods fenders it unenforceable,172-A final type of mandatory
pollution prevention measure that has been explored by EPA and
OTA is a prohibition or restriction on the use of certain sub-
stances or on the generation of certain wastes.173
While it is true that there are obstacles to widespread, success-
ful implementation of the mandatory pollution prevention tech-
niques described above, many of the techniques could be
successfully implemented on a small scale by EPA if authorized by
narrowly drawn legislation.
A combination of mandatory and Voluntary pollution preven-
tion measures might yield greater pollution prevention results
than a program based solely on voluntary efforts.174 For instance,
instead of requiring EPA to establish mandatory pollution pre-
vention performance standards for every industrial process by a.
certain date, Congress could "authorize the Agency to establish
mandatory standards for processes when it has sufficient informa-
tion to establish such standards. To the extent that EPA lacked
the expertise or resources to set standards, it would not be re-
quired to act. Ho\vever, if a segment of industry were to develop
,. ' ' • ; • i • "
EPA REPORT, supra note 9, at xiv. While a person can comply with the performance stan-
dards of the air and water pollution laws by using pollution control technologies or by
modifying production processes, a person can only comply with the mandatory perform-
ance standard requirements for pollution prevention b.y modifying production processes.
Id: Massachusetts' pollution prevention law includes provisions that authorize the State to
establish mandatory performance standards for certain industrial processes. MASS. GEN.
LAWS ANN. ch. 211, § 15 (West Supp. 1991).
169. OTA, supra note 9, at 55,
170. Mandatory throughput requirements limit the amount of waste or pollution gener-
ated by an industrial process per unit of production for the process. OTA, supra note 9, at
171. Set OTA. supra nqte 9, at 55; EPA REPORT, supra note 9, at x'v. .
;172. OTA, supra note 9. at 55, . ; . • ',
173. EPA REPORT, supra note 9, at xv. EPA already has some authority under TSCA to <
prohibit or restrict the use of certain toxic substances. See infra notes 179-82 ana accompa-
nying text. . : ' . , '•...'•'.-
' 174. OTA. supra note 9. at^53. -,•-"-,'
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186 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
technological modifications or management practices that signifi-
cantly and effectively reduced pollution generation in a specific
pr±s EPA could require other industries to implement those
nroven technologies or practices.175
P Congress could also expand EPA's authority to ban the use of
certain^oxic chemicals in manufacturing or production processes
or to prohibit certain packaging or marketing P^"''" ™^
reauired to do so, industry has shown a remarkable ability to
Z"e out'oS component by either replacing those maters
with less toxic substitutes or re-engineermg manufacturing or
^oduaion processes.- However substitutes a- not always
more benign than the substances they replace The substitute
may actuallTcreate greater environmental hazards than the ong!-
"IpA^ady L authority Under the Toxic Substances Control
Act rTSCA")"9 to prohibit the use of toxic substances if the Ad-
mlnistTator^akes certain findings regarding the^ *™
health or the environment created by the substances. me
Agency has begun to use TSCA more aggressively to encourage
175 EPA did noc rule out this approach in its 1986 report. EPA REPORT, tupro note 9. at
^
. supra note 34. at 21. The Comrmttee ^^^^ ^blish such ban,.
by EPA in its 1986 report _ «c , onp. ,ead in ^sollne are good
NELC'
fc Marian Chenow, TH, Mto of Product Bar., ENVT,. FORUM. Mar,
Apr. 1990, at 13-14.
179 15 U.S.C. §§2601-71 (1988).
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1992] ,-" From Reaction to Proaction ; 187
bans and phase-outs of certain toxic substances.181 However, the
extent necessary to protect adequately against such risk using the least burdensome
requirements: . .' ' '
(1) A requirement (A) prohibiting the manufacturing, processing, or distribution in
commerce of such substance or mixture, or (B) limiting the amount of such'substance
or .mixture which may be manufactured, processed, or distributed in commerce.
(2) A requirement (A) prohibiting the manufacture, processing, or distribution in
commerce of such substance or mixture for '(i) a particular use or (ii) a particular use
in a concentration in excess of a level specified by the Administrator in the rule impos-
ing the requirement, or.(B) limiting the amount of such substance or mixture which
may be manufactured, processed, or distributed in commerce for (i) a. particular use
or (ii) a particular use in a concentrrtion in excess of a level specified by the Adminis-
trator in the rule imposing the requirement.' ,
(3) A requirement that such substance or mixture Or any. article containing such
substance or mixture be marked with or accompanied by clear and adequate warnings
and instructions with respect to its use, distribution in commerce, or disposal or with
respect to any combination of sucH activities. The form and content of such warnings
and .instructions shall be prescribed by the Administrator ....
(5) A requirement prohibiting or otherwise regulating any manner or method of
commercial use of such substance or mixture ......
15 U.S.C. § 2605(a) (1988). Section 6(c)(l) of TSCA provides-
In promulgating any rule under subsection (a) of this section with respect to a chemi-
cal substance or mixture, the Administrator shall-consider and publish a statement
with respect to— "
(A) the effects of such substance or mixture on health and the magnitude of the
exp'osure of human beings to such substance or mixture,
(B) the effects of such substance or .mixture on the environment and the magnitude
of the exposure of the environment to such substance or mixture,
(C) the benefits of such substance or mixture for various uses and the availability of
substitutes for such uses, and ."'-••
(D) the reasonably ascertainable economic consequences of the rule, after consider-
ation of the effect on the national economy, small business, technological innovation,
the environment, and public health. •
15 U.S.C. § 2605(c)(l) (1988). '- ' .- . ." .'
181. EPA has begun to screen existing chemical substances and mixtures to determine
which chemicals are essentially harmless, and which chemicals require more extensive re-
view under TSCA, EPA Targets Chemical Review to Expand Scope of Pollution Prevention, INSIDE
EPA WEEKLY REPORT, Mar. 29, 1991, at 1,2. Before EPA initiates a more extensive formal
review of the environmental and health effects of the substance under TSCA, the Agency
gives notice to the companies, that use the substance, and suggests that the companies
reduce or eliminate their use of the substance. Id. EPA includes,a "benefits manual" in its
notice to the companies, describing methods for determining the total.cost of using haz-
ardous, chemicals, and including potential disposal and liability costs. Id. EPA also sug-
gests substitute chemicals that the Agency has determined to present less risks to health or
• the environment. Id. ' -
In EPA's view, this approach is efficient. If arompany is willing to cease using a particu-
lar substance voluntaniv in response to EPA's notice, the Agency does not have to expend
the .time of resources necessary to promulgate a rule banning the use of the substance.. Id.
Furthermore, this approach may result in phasing out the use of chemical substances in
certain situations where EPA could no.t ban the use of the substance bv rule, either because
the Ageno lacked'sufficient data to support the bah. or because the substance was used so '
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188 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
process for banning the use of a toxic substance.under TSCA is
slow and fraught with statutory and administrative hurdles.182
Congress could clearly express its support for EPA's new focus on
pollution prevention by streamlining the TSCA process for ban-
ning the use of toxic substances, or by investing EPA with
broader authority, apart from TSCA, to ban the use of certain
chemicals.
Although the Pollution Prevention Act focuses on voluntary
pollution prevention efforts, the Act does not foreclose future
legislative expansion of EPA's authority to mandate pollution
prevention measures.183 In fact, many of the requirements in the
Act provide a strong foundation upon which mandatory require-
ments could be layered. For instance, improved data collec-
tion184 and the development of a uniform system of measuring
pollution prevention185 could allow EPA to mandate measurable
reductions in the amount of pollution generated by industry. ^
Similarly, these improvements in data collection, together with'
sparsely that the time and resources necessary to proceed by rule could not be justified.
Id. ^
EPA has entrusted this initiative to its Office of Toxic Substances. Id. The Office ad-
ministers the reporting and data collection provisions of TSCA and can evaluate the bene-
fits of substituting one chemical substance for another using its large database on the
environmental and health effects of various chemical substances. Id. The Office also
tracks information regarding toxic chemical releases by industry provided to EPA under
SARA Title III and can. thus, prioritize chemical substances for potential regulatory action
based on prevalence of use by industry. Id.
182. For several examples of substantive and procedural limitations on the Administra-
tor's exercise of the authority to ban the use of certain toxic substances, see supra note
180. OTA pointed out another limitation in its 1986 report. According to that document,
EPA's ability to determine whether to ban a given toxic substance is hampered by limita-
tions in TSCA on the type of information that can be collected and by the confidential
nature of the information that is collected. OTA, supra note 9, at 181.
183. As mentioned above, the Senate Report for the Act recognizes that "additional
steps may be necessary to undertake a comprehensive pollution prevention program" and
indicates that the issue of pollution prevention will be revisited in RCRA reauthorization.
S. REP. No. 526, supra note 12, at 1-2. Furthermore, the Act requires EPA to submit bien-
nial reports to Congress identifying regulatory and non-regulatory barriers to source re-
duction and opportunities to use existing regulatory programs and incentives and
disincentives to promote and assist source reduction. Ppllution Prevention Act
§ 6608(b)(3), 42 U.S.C.A. § 13l07(b)X3) (West Supp. 1991). This information could be
useful to Congress in drafting future pollution prevention legislation.
184. The pollution Prevention Act requires EPA to develop improved methods of coor-
dinating, streamlining, and assuring public access to, data collected under federal environ-
mental statutes. See Pollution Prevention Act § 6604(b)(4). 42 U.S.C.A. § 13103(b)(4)
(West Supp 1991). " ' .
135, Id. §6604(b)(l), 42 U.S.C.A.J 'l3103(b)(l) (West Supp. 1991).
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From Reaction to Proaction
189
expanded reporting of pollution prevention practices,186 and the
development of a national source reduction clearinghouse,187
could refine EPA's expertise in setting mandatory performance
standards for industrial processes and establishing bans. Imple-
mentation of the Pollution Prevention Act could therefore pave
the way towards future legislative expansion of EPA's authority to
mandate pollution prevention.
C. Planning • ' •
One of the fundamental deficiencies of the Pollution Preven-
tion Act is its failure to address pollution prevention planning.
Unlike the majority of state pollution prevention laws, the federal
Act does not require preparation or implementation of pollution
prevention plans.188
Mandatory pollution prevention planning is ah important com-
ponent of a comprehensive pollution prevention program for sev-
eral reasons. First and foremost, planning ensures that persons
actually explore and consider opportunities to prevent pollu-
tion.189 By imposing specific procedural requirements for the
preparation of plans, mandatory planning provisions force per-
sons to take a closer look at pollution prevention opportunities
than if they were merely required to certify that they had explored
pollution prevention opportunities.190 Mandatory pollution pre-
vention planning also stimulates interest in pollution prevention
opportunities.191 For these reasons, OTA and state and EPA offi-
cials voiced their support for mandatory planning prior to the en-
actment of the Pollution Prevention Act.192 While their support
186. Id. § 6607, 42 U.S.C.A. § 13106 (West Supp. 1991).
187. Id. § 6606, 42 U.S.C.A. § 13105 (West Supp. 1991).
188. See infra note 197 and accompanying text. In 'their 1991 review of state toxic use
reduction laws, the National Environmental Law Center and the Center for Policy Alterna-
tives identified mandatory planning requirements as the second most important compo-
nent of a toxic use reduction law. NELC, supra note 4, at 13. The only component deemed
more important to the success of the law than the planning requirement was the definition
of "toxic use reduction" used in the law. Id.'
189.' NELC, supra note 4, at 7, 17. .
190. RCRA currently only requires generators of hazardous waste'to,certify that they
have minimized hazardous'waste. See supra.pan III(A).
191. Set OTA II, supra note 31, at 50. ,
192. In July 1990, a coalition of state and EPA officials identified the need fora'fedeVal
role to mandate waste reduction and toxic use reduction planning as part of RCRA
reauthonzation. STATE/EPA COMMITTEE, supra note,.34,-'at 51. A federal program was
deemed necessary due 10 (he hesitance of manv states lo adopt environmental measures
bevond those required bs federal law. Id. Slate waste management directors supported
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190 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
was not sufficient to convince Congress to include mandatory pol-
lution prevention planning requirements in the Act, Congress has
not abandoned mandatory pollution prevention planning.
Mandatory planning requirements have been included m legisla-
tion proposed in the 102d Congress to reauthorize RCRA.193
If mandatory pollution prevention planning were required by
federal legislation, difficult questions regarding planning would
need to be addressed, including who would be required to pre-
pare plans and for what substances. State pollution prevention
legislation may offer answers to these questions. Some states
limit mandatory pollution prevention planning requirements to
generators of hazardous waste, and only require those generators
?o plan for the reduction of hazardous waste.194 Pollution pre-
vention is, however, much broader than mere hazardous waste re-
duction and should focus on source reduction and toxic use
reduction rather than merely reducing the amount of hazardous
waste generated.195 Thus, planning should focus on persons who
use or release toxic or hazardous substances in general and not
merely on persons who generate hazardous waste.196
An alternative approach that ha* been adopted by many states
and proposed in federal legislation, is to require plans from all
mandatory planning, possibly tied to the permitting process for solid and hazardous waste.
W at28 OTA indited its support for waste reduction planning in its 1987 report on
pollution prevention. OTA II, supra note 31, at 50.
193. 5« S. 976. 102d Cong.. 1st Sess. § 202 (1991); S. 761, 102d Cong...lst Sess. § 5
(19l94.'s« CAL. HEALTH He SAFETY COOE 5§ 25244.12,24 (West Sup^ 1991); GA CODE
ANN §§ 12-8-61 to 12-8-66 (Michie Supp. 1991): TENN. CODE ANN. §§ 68-46-301 to 68-
46-312 (Supp. 1990).
195. See supra part IV(A).
196 Hazardous waste is denned in RCRA as: -
[A] solid waste, or combination of solid wastes, which because of its quantity, concen-
ration, or physical, chemical or infectious characterist.es may: (A) cause, or sign- -
cTntly ontribute to an increase in mortality or an increase m senous >™erSlbU..or
incapacitating reversible, illness; or (B) pose a substantial present or potenual hazard
o human health or the environment when improperly treated, stored, transported, or,
dlpoTed of. or otherwise managed. 42 U.S.C. 5 6903(5) <1988)^However hazardous
waste is merely one type of hazardous substance that may endanger pubhc hea th,
S£ and tnVenvironLn, In recognition of that ^ *. F«*« Superfun d law
regulates releases of "hazardous substances." See 42 U.S.C. § 9601(14) ( 988)^ The
Superfund law defines hazardous substances to mclude hazardous waste and five
other categones of substances. Id.. Similarly, the Federal Emergency Ptanmng and
Communuv Right to Know Act requires companies that use or produce certam tox.c
chemicals"'to report data on the use and release of those chemicals mto the env,ron-
ment. 42 U.S.C. §§ 11001-50(1988). ,
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From Reaction to Proaction
191
persons that are subject to the reporting requirements of SARA
Title III. '97 That approach ties pollution prevention planning re-
quirements to. the manufacturing, processing, or use of specified
amounts of toxic substances listed in SARA Title III. Some states
require persons who use or release threshold amounts of a wider
variety of toxic substances beyond the SARA Title III substances
to prepare pollution prevention plans.198
Requiring plans from generators of hazardous waste and per-
sons subject to the reporting requirements of SARA Title III are
good legislative first steps, but future pollution prevention plan-
ning efforts should expand beyond the manufacturing industries
covered by SARA Title III and address activities such as mining,
agriculture, and wastewater treatment.199 With regard to the
scope of pollutants that should be addressed in pollution preven-
tion plans, broad requirements will maximize the amount of pol-
lution prevention achievable and minimize the transfer of hazards
to unregulated substances or media. Pollution prevention plans
should focus not only on hazardous waste and toxic substances
listed under SARA Title III, but on all hazardous substances, pol-
lutants, and contaminants. The RCRA reauthorization legislation
recently introduced by Senator Max Baucus is one example of the
breadth of pollutants that can 4>e addressed in mandatory pollu-
tion prevention plans.200
If facilities are required to prepare pollution prevention plans,
questions about review and enforcement of those plans must also
197. S« ME. REV. STAT. ANN. tit. 38, §§ 2304-05 (West Supp. 1991); MASS. GEN LAWS
ANN. ch. 211. | 11 (West Supp. 1991); MWN. STAT. ANN. § 115D.07 (West Supp 1991)-
OR. REV. STAT. §465.018 (1989); WASH. REV. CODE ANN. § 70.95C 200 (West Supp'
1991); S. 976, 102d Cong., 1st Sess. § 202 (1991); S. 761. 102d, 1st Sess. § 5 (199iy!
Maine, Oregon and Washington also require generators of hazardous waste to submit
plans for hazardous waste reduction. See ME. REV, STAT. ANN. tit. 38. §§ 2304-05 (West
Supp. 1990); OR. REV. STAT. §465.018 (1989); WASH. REV. CODE ANN. § 70 95C 200
(West Supp. 1991).
198. For instance, the Oregon legislation allows the State to add substances to the list
of substances in SARA Title III for purposes of State planning. OR. REV. STAT. § 465.009
(1989).
199. The reporting requirements of SARA Title III only apply to certain manufacturing
industries. See supra note 11. Legislation that has been introduced to reauthorize the
Clean Water Act includes provisions addressing pollution prevention at wastewater treat-
ment facilities. See S. 1081, 102d Cong., 1st Sess. (1991).
200. The Baucus proposal requires planning for "hazardous substances," denned to
include certain substances designated by EPA under sections 31 l(b)(2)(A) or 307(a) of the
Clean Water Act. section 102 of the Comprehensive Environmental Response, Compensa-
tion and Lability Act ("CERCLA"), section 3001 of RCRA, section 112 of the Clean Air
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192 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
be considered. With regard to the extent of governmental review
of pollution prevention plans, several alternatives exist. First,
pollution prevention legislation could authorize EPA to review
pollution prevention plans for technical adequacy and to reject
plans that fair to implement specific pollution prevention oppor-
tunities that the Agency determines are appropriate for the facil-
ity to implement. This approach would be resource-intensive,
and would require significant expertise within EPA regarding in-
dustrial and manufacturing processes.
Alternatively, legislation could provide for limited review of
pollution prevention plans by EPA to ensure that the persons
subject to the planning requirements examine the full range of
pollution prevention options and consider the costs and benefits
of each.201 If Congress and EPA are correct in their view that the
greatest obstacle to pollution prevention is the lack of adequate
information about pollution prevention opportunities,202 a lim-
ited review of plans might be sufficient to achieve the congres-
sional goal of encouraging widespread pollution prevention,
since persons subject to the plan requirement may choose to im-
plement pollution prevention opportunities revealed by planning.
If the assumption of Congress and EPA is correct, a limited re-
view of the plans by EPA may not even be necessary. Many states
require persons subject to the planning requirements to have
their plans prepared by a certified pollution prevention plan-
Act, .section 7 of TSCA, or section 302 or 313 of SARA Title III. S. 976, 102d Cong., 1st
Sess. §§ 104. 202 (1991). . ...,,„.
Pollution prevention legislation in some states has provided state agencies with broader
authority to define the substances for which mandatory planning is required. For instance,
Massachusetts' legislation authorizes the State to prepare a list of toxic or hazardous sub-
stances for which planning is required. MASS. GEN. LAWS ANN. ch. 211, § 9 (West Supp.
1991) Similarly, Oregon's legislation authorizes Oregon's Environmental Quality Com-
mission to add or remove toxic substances or hazardous waste from the list of substances
for which planning is required. OR. REV. STAT. § 465,009 (1989).
"01 The scope of review could be modeled on the requirements of the National Envi-
ronmental Policv Act ("NEPA"). 42 U.S.C. §§ 4321-70A (1988). Several states have
adopted this approach, focusing solely on whether the plan is complete and the P«««J™
requirements for planning have been followed. See ME. REV. STAT. ANN. tit. 38 § 2307
(West Supp. 1991); TENN. CODE ANN. § 68-46-308 (Supp. 1991). The NELC also favored
this approach, suggesting that the regulatory agency should be given the authority w re-
ject plans that do not consider a "comprehensive set of reduction alternat.ves. NELC,
supra note 4. at 18.
202. See supra note 57 and accompanying text.
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From Reaction to Proaction
193
ner 203 the involvement of whom could ensure adequate consid-
eration of all pollution prevention opportunities.204
Another difficult question that arises regarding review of pollu-
tion prevention plans concerns the confidentiality of the informa-
tion they contain. Since pollution prevention planning provisions
generally require disclosure of industrial processes and chemicals
used in those processes,205 industry is reluctant to compromise
data confidentiality and trade secret protection by submitting
such information to government agencies in a public docu-
ment.206 On the other hand, if the information is not disclosed,
government regulators cannot determine whether the facility has
complied with .pollution planning requirements. The solution
that has been reached by many state legislatures and incorporated
in proposed federal legislation is to require persons to include
confidential information and trade secrets in pollution prevention
plans, but to allow them to maintain the plans at their place of
business for inspection rather than to submit the plans to the gov-
ernment.207 Furthermore, state laws often provide that pollution
prevention plans are not public records.208
A final question that must be resolved if mandatory pollution
prevention plans are required under federal legislation is whether
such plans are enforceable. State legislatures have not addressed
this question in a uniform fashTon. Some states merely authorize
state agencies to penalize persons for failing to prepare pollution
prevention plans.209 Others authorize state agencies to enforce
203. See CAL. HEALTH & SAFETY CODE § 25244.19(e) (West Supp. 1991); MASS. GEN.
LAWS ANN. ch. 211, § 11(B) (West Supp. 1991).
204. Presumably, those persons would then implement some of the pollution preven-
tion measures identified through the planning process due to the economic benefits pro-
vided by those measures.
205. For instance, Minnesota's legislation requires that plans include "a description of
the current processes generating or releasing toxic pollutants." MINN. STAT. ANN.
§ U5D.07.2 (West Supp. 1991).
206. These concerns are identical to the concerns created by reporting requirements in
pollution prevention laws. See mfra note 222 and accompanying text.
207. See CAL. HEALTH & SAFETY CODE § 25244.21 (West Supp. 1991); MASS. GEN. LAWS
ANN. ch. 211. § 11 (West Supp. 1991); MINN. STAT. ANN. § 115D.07 (West Supp. 1991);
OR. REV. STAT. § 465.018 (1989); TENN. CODE ANN. § 68-46-304 (Supp. 1990); WASH.
REV. CODE ANN. | 70.95C.220 (West Supp. 1991); S. 9.76, 102d Cong., 1st Sess. § 202
(1991); S. 761. 102d Cong., 1st Sess. § 5 (1991).
208. See. e.g., OR. REV. STAT. § 465.018 (1989); TENN. CODE ANN. § 68-46-311 (Supp.
1991); WASH. REV. CODE ANN. § 70.95C.220 (West Supp. 1991).
209. See, e.g., CA. CODE ANN. § 12-8-72 (Michie Supp. 1991).
"7.5
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194 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
pollution prevention plans210 and to impose penalties for failing
to implement them. Critics have argued that if pollution preven-
tion plans are enforceable, persons will plan conservatively rather
than including aggressive reduction strategies in plans.211 Re-
gardless of that concern, both pollution prevention initiatives
proposed in the 102d Congress provide EPA with the authority to
require implementation of pollution prevention plans prepared
under the legislation.212
D. Reporting
Mandatory reporting requirements stimulate pollution preven-
tion in several ways. By detailing the practices and technologies
that are being used to prevent pollution, reporting provides EPA
with a broad base of information about available pollution pre-
vention opportunities that the Agency can disseminate to other
interested parties.213 Mandatory reporting also ensures that per-.
sons remain accountable for implementing pollution prevention
practices and technologies and achieving actual reductions in pol-
lution generation.214 To maximize the impact that mandatory
pollution prevention reporting has on gathering information and
fostering accountability, reporting provisions should: (1) require
the submission of as much information as needed and (2) ensure
that it is as accurate and precise as possible.
While the Pollution Prevention Act includes provisions that re-
quire persons to report source reduction and recycling activities
to EPA215 several amendments are necessary to maximize the im-
pact of those reporting requirements. First, reports should be re-
quired from a broader spectrum of polluters than persons
required to file toxic release information forms under SARA Title
210. See. e.g.. CAL. HEALTH & SAFE™ CODE § 25244.18 (West Supp. 1991).
211. Sie Hansen, supra note 3, at 33.
212. S. 976, 102d Cong.. 1st Sess. § 202 (1991); S. 761, !Q2d Cong., 1st Sess. § 5
(1991)
213 The Pollution Prevention Act of 1990 includes several provisions requiring EPA to
facilitate pollution prevention by'providing information to persons; on
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From Reaction to Proaction
195
III.216 At a minimum, any person that is required to prepare a
pollution prevention plan under amended federal legislation
should be required to report the progress attained in implement-
ing the plans.217 Similarly, pollution prevention reports should
address pollution prevention practices and technologies for a
broader universe of pollutants than those identified in SARA Ti-
tle III.
Pollution prevention reports should also address pollution pre-
vention practices on a process-specific rather than on a facility-
wide basis.218 Since facilities often use several different
processes, and production levels for particular processes vary sig-
nificantly over time, facility-wide reporting does not allow EPA or
the public to determine whether reductions reported for a facility
are due to specific pollution prevention programs that the facility
has implemented, or are merely due to cuts in production.219
Process-specific information enables EPA to make.this determina-
tion.220 Without such information, EPA cannot evaluate the suc-
216. As noted above, reporting under SARA Title III is limited to persons who manu-
facture, process, or use specified amounts of certain chemicals in designated manufactur-
ing processes. See supra note 11. While the Pollution Prevention Act only requires reports
from persons who are required to file toxic chemical release reports under SARA Title III,
the legislative history of the Act indicates that Congress felt that the reporting require-
ments in the Act were not necessarily tfie best way to measure the effectiveness of adoption
of source reduction practices. H.R. REP. No. 555, supra note 19, at 13. The legislative
history of the Pollution Prevention Act further provides that SARA Title III was selected as
a model for the reporting requirements of the Act because it was the only multi-media
reporting requirement in existence. Id.
217. State laws that require pollution prevention planning, and some proposed federal
legislation, generally require reporting by all persons required to prepare plans identifying
the progress made in implementing the plans. See CAL. HEALTH & SAFETY CODE
§ 25244.20 (West Supp. 1991); GA. CODE ANN. § 12-8-65 (Michie Supp. 1991); ME. REV.
STAT. ANN. tit. 38, §§ 2303, 2307 (West Supp. 1990); MASS. GEN. LAWS ANN. ch. 211, §§ 3,
10 (West Supp. 1991); MINN. STAT. ANN. § 115D.08 (West Supp. 1991); OR. REV. STAT.
§ 465.024 (1989); TENN. CODE ANN. § 68-46-306 (Supp. 1991); WASH. REV..CODE ANN.
§ 70.95C.200 (West Supp. 1991); S. 976, 102dCong.. 1st Sess. § 202 (1991); S. 761, 102d
Cong., 1st Sess. § 6 (1991).
218. The reporting requirements of the Pollution Prevention Act only require reporting
on a facility-wide basis. 42 U.S.C.A. § I3106(b) (West Supp. 1991). The performance re-
port requirements of the proposed Baucus legislation, on the other hand, focus on pro-
cess-specific activity. See S. 976, 102d Cong., 1st Sess. § 202 (1991). .
219. NELC, supra note 4, at 19.
220. To ensure that the data contained in reports can be accurately interpreted by the
government agencies, many states require persons to identify ratios of production be-
tween the reporting year and pnor years. Ste MASS. GEN. LAWS ANN. ch. 211, § 10 (West
Supp. 1991). Although the Pollution Prevention Act of 1990'does not require reporting
on a process-specific basis, it does require reporting of production ratios. 42 U.S.C.A.
§ 13106(b)(5) (West Supp. 1991). Whether reports address pollution prevention on a fa-
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196
COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
cess of specific pollution prevention programs and cannot
determine whether such programs can be effectively implemented
by other industries or implemented outside of the manufacturing
sector. Process-specific information provides an accurate and
useful description of the results achieved by various pollution
prevention practices and technologies.
Finally, mandatory reporting provisions should require persons
to report the specific practices and technologies they utilize to
achieve reductions in pollution generation. The Pollution Pre-
vention Act merely requires reporting of such practices by cate-
gory.221 The more general the pollution prevention information
submitted to EPA, the less useful it is.
None of the amendments to the reporting requirements sug-
gested above are likely to draw praise from the regulated commu-
nity. As in the review of pollution prevention plans, reporting
requirements generate concerns about disclosure of confidential
information and trade secrets.222 The Pollution Prevention Act
addresses this tension by including provisions whereby persons
filing pollution prevention reports can protect legitimate trade
secrets and confidential information from disclosure.223 How-
ever, those provisions only protect the identity of chemicals as
trade secrets and do not apply to the other information that per-
sons are required to report under the Act, including process, de-
scriptions and production figures.224 If the trade secret
provisions of the Pollution Prevention Act are expanded to offer
cility-wide or process-specific basis, production levels -re vital in evaluating the true levels
of pollution prevention achieved by a facility.
221. 42 U.S.C.A. § 13106(b)(3) (West Supp. 1991). Similarly, Massachusetts' toxic use
reduction law merely requires reporting, on a matrix, the categories of pollution preven-
tion opportunities that have been implemented. MASS. GEN. LAWS ANN. ch. 211, § 10
(West Supp. 1991).
222. The potential for disclosure of confidential information and trade secrets increases
,. persons are required to report more detailed descriptions of industrial processes, raw
material usage, and production figures. Pollution prevention methods and technologies
might also be considered to be confidential information or trade secrets. Procedures or
technologies that reduce a company's pollution generation by increasing the efficiency of
its processes provide that company with a competitive advantage over rivals that do not
use such procedures or technologies. A company that develops pollution-preventing pro-
cess modifications may be reluctant to disclose those modifications and sacrifice the com-
petitive advantage those modifications provide.
223. 42 U.S.C.A. § 13106(e) (West Supp. 1991). The Act provides that the trade secret
provisions of section 322 of SARA apply to data reported under the Pollution Prevention
Act. Id.
224. SARA. 42 U.S.C. § 11042 (1988).
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From Reaction to Proaction
197
protection for a broader scope of information,225 and stricter
penalties are provided for disclosure of confidential information,
those measures should be adequate to protect legitimate trade
secrets and confidential matters. At all times, though, industries'
interest in preventing disclosure of trade secrets and confidential
information must be weighed against the paramount interest of
EPA and the public in gathering and disseminating information
about successful pollution prevention methods and ensuring that
industry is effectively implementing pollution prevention
measures.
E. Funding
In order to combat ignorance among industry managers, the
Pollution Prevention Act requires EPA to establish a national
clearinghouse for the dissemination of information on pollution
prevention226 and to provide grants for states to implement tech-
nical assistance programs for pollution prevention.227 Technical
assistance and technology transfer play a central role in the Act.
However, in order to implement the programs envisioned by the
Pollution Prevention Act, an adequate and reliable source of
funding must be found. The funding provided in the Pollution
Prevention Act is insufficient to fully implement the technical
assistance and technology transfer programs established by the
Act.
The Pollution Prevention Act authorizes appropriations of $8
million per year to EPA for the 1991, 1992, and 1993 fiscal years
for state grant programs, and an additional $8 million per year for
225. Information should only be protected if it is truly a trade secret or confidential
information. While the trade secret provisions of SARA incorporated into the Pollution
Prevention Act do not establish standards for determining whether information qualifies
as a trade secret, SARA requires EPA to prescribe regulations to implement those provi-
sions. Id. EPA could clarify the boundaries of legitimate trade secrets through regulation.
Oregon and Massachusetts have particularly strong limitations on what type of ,iUu..na-
tion can be protected as a trade secret. See MASS. GEN. LAWS ANN. ch. 211, § 20 (West
Supp. 1991); OR. REV. STAT. ANN. § 192.501 (Supp. 1990).
226. 42 U.S.C.A. § 13105 (West Supp. 1991).
227. Id.. § 13104. State agencies play a vital role in the dissemination of information on
pollution prevention to industry because of their direct contact with industry and their
familiarity with local factors that may impact on the ability of industries to effectively im-
plement'vanous pollution prevention practices or technologies. STATE/EPA COMMITTEE,
supra note 34, ai 50: While EPA mav provide funding for 50% of the cost of the state
programs, see Pollution' Prevention Act § 6605(c), 42 U.S.C.A. § 13104(c) (West Supp.
1991), the legislative historv of the Act makes it clear that Congress intended that state
programs should become self-sufficient. S. REP. No. 526, supra note 12, at 6.
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198 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
the Agency's other duties under the Act, including the establish-
ment of the national pollution prevention clearinghouse.228 In a
1987 report, the OTA recommended a commitment of $255 mil-
lion by EPA over a five year period to establish an effective grants
program for waste "reduction programs.229 Following the initial
five year period, the OTA report speculated that a commitment of
$10 million per year by EPA would be adequate to maintain the
level of pollution prevention created by the five year program.230
According to OTA's calculations, therefore, $8 million per year is
insufficient to establish effective state programs to disseminate
pollution prevention information.231
The source of funding under the Pollution Prevention Act is
also inadequate. General appropriations are not a reliable fund-
ing mechanism for the potentially costly programs established by
the Pollution Prevention Act.232 A tax or fee imposed on the con-
duct that the Pollution Prevention Act intends to discourage
would be a more effective alternative for funding the pro-
grams.233 For instance, if pollution prevention is viewed in the
broad sense suggested in this Article, federal legislation could im-
pose taxes on toxics use, waste generation, and releases of toxic
pollutants.234 Such taxes would provide funding for pollution
228. 42 U.S.C.A. § 13109 (West Supp. 1991).
229. OTA II, supra note 31. ai 14. The report suggested that EPA could reallocate 2%
of its operating budget (approximately $30 million) in the first year of the program, and
increase its commitment to 3?o in the second year and \% over the third, fourth, and fifth
years. Id. at 52. OTA forecast that approximately 80 to 90^0 of the funds would be used
for state grants, making technical assistance available to nearly 100,000 companies at the
end of the five years, while it was available to only a small number of companies prior to
the program's inception. Id. OTA envisioned the $255 million as seed money for the state
programs. Id. Furthermore, OTA predicted that increased tax revenues from corporate
profits resulting from waste management savings due to the program would be greater
than the cost of the grants. Id. at 54. In effect, the grant program would pay for itself.
230. Id. at 53.
231. Massachusetts alone spends $5.2 million per vear on pollution prevention pro-
grams. NELC, supra note 4, at 15.
232. In evaluating state toxic use reduction laws, the National Environmental Law
Center and the Center for Policy Alternatives deemed general appropriations to be the
least reliable method used by states to fund their pollution prevention programs. NELC,
supra note 4, at 15.
233. Several states fund their toxics use reduction programs through the imposition of
dedicated fees or taxes. Sie ME. REV. STAT. ANN. tit. 38, § 2311 (West Supp. 1990); MASS.
GEN. LAWS ANN. ch. 211. § 19 (West Supp. 1991); MINN. STAT. ANN. § 115D.12 (West
Supp. 1991).
234. Pollution taxes have been considered by Congress in the past. A bill introduced by
Rep. Thomas Lukens in the 101st Congress, would have established a tax on virgin materi-
als to encourage recycling. H.R. 3737. 101st Cong., 1st Sess. (1989). Similarly, taxes on
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From Reaction to Proaction
199
prevention programs as long as the problems that those pro-
grams were designed to combat persisted.
F. Role of Citizens and Employees
Another aspect of pollution prevention that is not adequately
addressed in the Pollution Prevention Act is the role of citizens
and employees in implementation and enforcement. Public ac-
countability can be a useful tool to force industry to implement
pollution prevention measures.235 Additionally, .since citizens
and employees are intimately affected by pollution, they have an
interest in forcing industry to reduce potential hazards and risks
to their health and the environment by preventing the generation
of pollution.236
Citizens and employees cannot be effectively involved in the
implementation and enforcement of federal pollution prevention
legislation unless two prerequisites are satisfied. First, citizens
and employees must be provided with coherent, meaningful in-
formation about the efforts undertaken by industries to meet pol-
lution prevention requirements.237 The Pollution Prevention Act
includes several provisions aimed at improving the quality and
clarity of data on pollution prevention and improving the dissemi-
nation of that data.238 Thus, the Act appears to satisfy the first
requirement. ' —•
hazardous waste sent to land disposal sites were considered in Superfund reauthorization
legislation as a method of encouraging waste reduction. OTA II, supra note 31, at 43.
Finally, the proposed Clean Water Act reauthorization introduced by Sen. Max Baucus
includes a provision that provides funding for the establishment of effluent guidelines and
new source performance standards by assessing fees on sources within the categories of
sources proposed to be regulated, based on the volume and toxicity of discharges by the
source. S. 1081, 102d Cong., 1st Sess. § 7 (1991).
235. See supra note 38 and accompanying text.
236. NELC, supra note 4, at 8.
237. See STATE/EPA COMMITTEE, supra note 34, at 51.
238. For instance, the ^ct requires EPA to develop improved methods for collecting
data under federal environmental laws and making it available to the public, to establish an
advisory panel of technical experts to advise the Administrator on the collection and dis-
semination of data, and to establish a source reduction clearinghouse, which can be ac-
cessed by the public for entry and retrieval of information. The Act also ensures that data
included in source reduction and recycling reports under the Act is made publicly avail-
able, subject to trade secret and confidential information limitations. 42 U.S.C.A.
§§ 13103(b)(4). 13103(b)(8), 13105, 13106(e) (West Supp. 1991).
Pursuant to its pollution prevention strategy, EPA is working to further improve the
qualitv of pollution prevention data and to give concrete meaning to the data. 56 Fed.
Reg. 7856 (1991). The Agency is endeavoring to refine the data so that the public may use
it as "ecological indicators." Id.
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200 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
Second, legislation must specifically empower citizens and em-
ployees to act upon the information that they receive about pollu-
tion prevention efforts by industry. While boycotts and strikes
are often available to citizens and employees, legislation should
empower citizens and employees to take specific actions to imple-
ment or enforce provisions of federal pollution prevention legis-
lation. For instance, as the pollution prevention responsibilities
of industries and businesses expand beyond mere reporting to in-
clude planning and implementation of mandatory pollution pre-
vention measures specified by EPA, citizens and employees
should be authorized to bring citizen suits to ensure that indus-
tries and businesses comply with the expanded pollution preven-
tion requirements.239 Pollution prevention legislation in some
states empowers local citizen groups to play a role in preparing
pollution prevention plans for industries.240 The Pollution
Prevention Act, on the other hand, does not empower citizens
and employees to play a significant role in fostering pollution
prevention.
Due to their familiarity with processes and technologies used by
industrial facilities, employees are-uniquely situated to assist em-
ployers in complying with pollution prevention requirements and
identifying pollution prevention opportunities. Employees are
also capable of aiding the federal government in enforcing the
Act when employers fail to comply with pollution prevention re-
quirements. Specific whistleblower protection provisions should
be added to the Pollution Prevention Act to encourage employees
to fearlessly implement and enforce the Act.
239. The Pollution Prevention Act merely authorizes citizen suits against persons who
fail to complete or submit source reduction and recycling reports. 42 U.S.C.A. § I3106(c)
(West Supp. 1991). The Act provides that section 326 of SARA applies to the reporting
requirements under the Pollution Prevention Act. Id. Section 326 of SARA says that "any
person may commence a civil action on his own behalf against . ., [a)n owner or operator
of a facility for failure to ... complete and submit a toxic chemical release form." 42
U.S.C. § 11046 (a)(l)(A)(iv) (1988).
240. See MASS. GEN. LAWS ANN, ch. 211. § 18(B) (West Supp. 1991); MINN. STAT. ANN.
5 115D.08.2 (West Supp. 1991). :
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G. Goals
From Reaction to Proaction
201
In contrast to many state laws,241 the Pollution Prevention Act
does not establish numerical goals for pollution reduction.242
Congress should have included national pollution prevention
goals in the Act. The advantage of including national pollution
prevention goals in the form of a legislative policy statement is
that the goals, while not individually enforceable, indicate the na-
tion's level of commitment to pollution prevention and provide
pollution prevention targets for government agencies and private
industries to strive toward.243
Mandatory site-specific goals, another alternative, pose imple-
mentation problems that are not presented by national goals.
The greatest obstacle to mandatory, site-specific pollution pre-
vention goals at present is the lack of uniform methods for mea-
suring pollution prevention.244 If pollution prevention cannot be
measured, mandatory goals to achieve specific levels of pollution
prevention are meaningless. The concept of mandatory, site-spe-
cific pollution prevention goals should not, however, be aban-
doned.245 By requiring EPA to establish standard methods of
measuring pollution prevention,246 and to identify measurable
pollution prevention goals and timetables for meeting those
goals,247 the Pollution Prevention Act itself may be laying the
241. See ME. REV. STAT. ANN. tit. 38, §§ 2303-04 (West Supp. 1990); MASS. GEN. LAWS
• ANN. ch. 211, § 1 (West Supp. 1991); WASH. REV. CODE ANN. § 70.95C.010 (West SUDD
1991). .
242. The Act does, however, require EPA "to identify, where appropriate, measurable
goals for pollution prevention." 42 U.S.C.A. § 13103(b)(6) (West Supp. 1991).
243. NELC, supra note 4, at 21.
244. See OTA. supra note 9, at 20; STATE/EPA COMMITTEE, supra note 34, at 49. See also
supra notes 61-63 and accompanying text.
245. In its 1986 report, OTA suggested a less stringent variation of mandatory reduc- •
tion goals. OTA, supra note 9, at 55. In that report, OTA suggested that EPA establish
"soft" waste reduction targets for specific industrial processes or wastes, and authorize
persons to offer justifications for noncompliance based on technological or economic fac-
tors, or to offer schedules for compliance. Id. Since the targets would be "soft," EPA
could spend less time, money, and resources than it would on mandatory performance
standards or throughput requirements. However, OTA acknowledged that EPA would
still be required to expend |;he money and resources to develop defensible waste reduction
targets. Id. Setting the reduction targets too high would result in administrative night-
mares due to the Rood of requests for noncompliance or altered compliance schedules,
while setting the level too low would not result in sufficient amounts of waste reduction
Id.
246. 42 U.S.C.A. § I3103(b)(l) (West Supp. 1991).
247. Id. § 13103(b)(6).
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202 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
foundation for the future imposition of mandatory pollution pre-
vention goals for specific facilities or processes.
H. Regulatory Incentives
Another concept that is gaining favor with EPA and Congress,
but was not included in the Pollution Prevention Act, is the con-
cept of "regulatory incentives." To the extent that EPA is author-
ized to do so under existing statutes, the Agency has begun to
modify its administrative practices to encourage pollution preven-
tion.248 Future legislation could expand EPA's authority to use
the administrative process to encourage pollution prevention.
Both EPA and OTA have explored the possibility of authoriz-
ing the Agency to waive or modify, by rule or through individual
permits, pollution control requirements of the environmental
protection statutes in exchange for the implementation of pollu-
tion prevention practices or technologies.249
OTA argues that trade-offs encourage more pollution preven-
tion than a combination of mandatory pollution control and vol-
untary pollution prevention measures because the existing
statutory and regulatory system does not provide sufficient incen-
tives for voluntary pollution prevention.250 The waiver or modifi-
cation of pollution control requirements, OTA claims, provides
the necessary economic incentives. Additionally, OTA reasons,
since the existing pollution control system has had limited success
in achieving environmental protection, these regulatory conces-
sions would not necessarily sacrifice environmental protection.
OTA acknowledges that the trade-off approach opens a large po-
248. See supra notes 126-28 and accompanying text.
249. See OTA II. supra note 31, at 51; 56 Fed. Reg. 7856, 7859 (1991). In particular,
OTA praised the economic benefits of such an approach in improving international com-
petitiveness of industry. OTA II, supra, note 31, at 52. Historically. OTA noted, other
countries have been more successful than the United States in encouraging economic com-
petitiveness of industry and pollution prevention through regulatory flexibility. Id.
250. OTA argues that the existing regulatory system does not necessarily encourage
persons to engage in pollution prevention, through waste reduction, for a variety of rea-
sons. OTA II, supra note 31. at 27. For instance, OTA argues that companies are more
likely to install pollution control technologies to comply with pollution control require-
ments than to implement pollution prevention measures because they are more familiar
with pollution control technologies than with pollution prevention; they believe that pollu-
tion control technologies can be made safe enough to minimize liabilities as much as pol-
lution prevention; there is no technical support structure or reward for implementing
pollution prevention; and there is a mistaken belief that no pollution prevention opportu-
nities remain. Id. at 27-29.
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From Reaction to Proaction
203
tential loophole in environmental regulation under existing pol-
lution control statutes,251 but the approach does show promise.
Some proposed RCRA reauthorization legislation wisely included
provisions requiring EPA to explore and report to Congress on
the benefits of using incentives to encourage pollution
prevention.252
V. CONCLUSION
The pure pollution control approach that has dominated envi-
ronmental protection legislation and regulations over the past
two decades is inadequate to address the global and systemic en-
vironmental threats that face the planet. In order to overcome
the nation's environmental problems, Congress and EPA must
shift their regulatory focus from reaction to proaction. Pollution
prevention measures must be implemented wherever possible to
supplement or replace pollution control measures.
Several states have already enacted aggressive pollution pre-
vention legislation in the face of federal inactivity. Such legisla-
tion should prove to be instructive as Congress begins to
appreciate the merits of a refocused environmental protection
effort and incorporate pollution prevention requirements into
federal law. The Pollution Prevention Act does not aggressively
refocus environmental protection regulation from pollution con-
trol to pollution prevention. Indeed, the Act is a very modest
piece of legislation in terms of what it can achieve on its own.
However, the Act can make a difference if Congress and EPA
build on the framework that it creates, and impose new and ex-
panded pollution prevention requirements through regulations
and additional legislation.
In the short term, Congress should enact legislation that re-
quires mandatory pollution prevention planning for manufactur-
ing industries and for a wide range of other activities, including
agriculture, mining, and wastewater treatment.253 Recent federal
legislation proposed to reauthorize the Clean Water Act includes
provisions addressing pollution prevention by wastewater treat-
ment facilities. The overall focus of pollution prevention legisla-
251. OTA notes that "[vjaiid concerns arise about this policy creating opportunities to
avoid or escape regulatory compliance." OTA II. supra note 31, at 51.
252. S. 976. 102d Cong.. 1st Sess. § 206 (1991).
253. EPA identified these activities in its pollution prevention strategy as candidates for
future pollution prevention initiatives. 56 Fed. Reg. at 7850.
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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 17:153
tion should be expanded beyond manufacturing industries, and
definitions used under the Act, should be clarified and expanded
to encourage the maximum amount of pollution prevention
achievable.
Pollution prevention reporting provisions should be expanded
and refocused to ensure that EPA obtains the most accurate and
detailed information available regarding currently available pollu-
tion prevention opportunities. Citizens and employees should be
given greater access to information on pollution generation and
prevention and should be given more power to enforce pollution
prevention requirements. National goals should be articulated so
as to define the nation's commitment to pollution prevention. In
order to exhibit its commitment to this philosophical shift to pol-
lution prevention, Congress should provide adequate funding for
a federal pollution prevention program through dedicated fees or
taxes. All of these measures could be layered quite naturally
upon the requirements imposed by the Pollution Prevention Act.
EPA may actually make some of these improvements through its
regulations implementing the Act.
In the longer term, as the strengths and weaknesses of such
measures are more fuUy understood, Congress should authorize
EPA to impose mandatory pollution prevention requirements and
to use regulatory incentives to encourage pollution prevention.
Much remains to be done before pollution prevention becomes
the national environmental practice that EPA and Congress envi-
sion that it will become. To the extent that Congress and EPA
build upon the framework created by the Pollution Prevention
Act, the Act is a useful first step from reaction to proaction.
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LAW 101-508-NOV. 5, 1990
104 STAT. 1388-321
Pollution
42 USC 13 101
note.
42 USC 13101.
SEC. 6601. SHORT TITLE.
This subtitle may be cited as the "Pollution Prevention Act of
1990"
?EC. S602. FINDINGS AND POLICY.
a FINDINGS.—The Congress finds that:
( _ 1 The United States of America annually produces millions
of tons of pollution and spends tens of billions of dollars per
year controlling this-pollution.
•2' There are significant opportunities for industry to reduce
or prevent pollution at the source through cost-effective changes
in production, operation, and raw materials use. Such changes
offer industry substantial savings in reduced raw material,
pollution control, and liability costs as well as help protect the
environment and reduce risks to worker health and safety.
;3) The opportunities for source reduction are often not re-
alized because existing regulations, and the industrial resources
they require for compliance, focus upon treatment and disposal.
rather than source reduction; existing regulations do not
emphasize multi-media management of pollution; and
businesses need information and technical assistance to over-
come institutional barriers to the adoption of source reduction
practices.
(4) Source reduction is fundamentally different and more
desirable than waste management and pollution control. The
Environmental Protection Agency needs to address the histori-
cal Jack of attention to source reduction.
io) As a first step in preventing pollution through source
reduction, the Environmental Protection Agency must establish
a source reduction program which collects and disseminates
information, provides financial assistance to States, and imple-
ments the other activities provided for in this subtitle.
POLICY.— The Congress hereby declares it to be the national
policy of the United States that pollution should be prevented or
reduced at the source whenever feasible; pollution that cannot be
prevented should be recycled in an environmentally safe manner.
whenever feasible; pollution that cannot be prevented or recycled
should be treated in an environmentally safe manner whenever
feasible: and disposal or other release into the environment should
be employed only as a last resort and should be conducted in an
environmentally safe manner.
SEC. 6«03. DEFINITIONS. . 42 USC 13102.
For purposes of this subtitle—
11) The term "Administrator" means the Administrator of the
Environmental Protection Agency.
12) The term "Agency" means the Environmental Protection
Agency.
13) Trie term "toxic chemical" means any substance on the list
described in section 313(c) of the Superfund Amendments and
Reauthorization Act of 1986.
'4) The term "release" has the same meaning as provided by
section 329<8) of the Superfund Amendments and Reauthoriza-
tion Act of 1986.
«9-i39O - 90 - tl 508)
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rumuc LAW iui-ow— NOV. 5, 1990
(5XA) The term "source reduction" mean* any practice
which—
ii) reduces the amount of any hazardous substance,
pollutant, or contaminant entering any waste stream or
otherwise released into the environment (including fugitive
emissions) prior to recycling, treatment, or disposal; and
'ii) reduces the hazards to public health and the environ-
ment associated with the release of such substances, pollut-
ants, or contaminants.
The term includes equipment or technology modifications, proc-
ess or procedure modifications, reformulation or redesign of
products, substitution of raw materials, and improvements in
housekeeping, maintenance, training, or inventory control.
iB) The term "source reduction" does not include any practice
which alters the physical, chemical, or biological characteristics
or the volume of a hazardous substance, pollutant, or contami-
nant through a process or activity which itseif is not integral to
and necessary for the production of a product or the providing
of a service.
16) The term "multi-media" means water, air, and land.
(7) The term "SIC codes" refers to the 2-digit code numbers
used for classification of economic activity in the Standard
Industrial Classification Manual.
42 USC 13103, SEC. 6«04. EPA ACTIVITIES.
la) AuTHORrnis.—The Administrator shall establish in the
Agency an office to carry out the functions of the Administrator
under this subtitle. The office shall be independent of the Agency's
single-medium program offices but shall have the authority to
review and advise such offices on their activities to promote a multi-
media approach to source reduction. The office shall be under the
direction of such officer of the Agency as the Administrator shall
designate.
(b) FUNCTIONS.—The Administrator shall develop and implement
a strategy to promote source reduction. As part of the strategy, the
Administrator shall—
(1) establish standard methods of measurement of source
reduction;
(2) ensure that the Agency considers the effect of its existing
and proposed programs on source reduction efforts and shall
review regulations of the Agency prior and subsequent to their
proposal to determine their effect on source reduction;
(3) coordinate source reduction activities in each Agency
Office and coordinate with appropriate offices to promote source
reduction practices in other Federal agencies, and generic re-
search and development on techniques and processes which
have broad applicability;
(4) develop improved methods of coordinating, streamlining
and assuring public access to data collected under Federal
environmental statutes;
(5) facilitate the adoption of source reduction techniques by
businesses. This strategy shall include the use of the Source
Reduction Clearinghouse and State matching grants provided in
this subtitle to foster the exchange of information regarding
source reduction techniques, the dissemination of such informa-
tion to businesses, and the provision of technical assistance to
-------
PUBLIC LAW 101-508-NOV. 5, 1990 104 STAT. 1338-323
5^^S-lS'
ify, where approriate, measurable
• »• establish an advisory panel of technical experts c
of representanves from industry, the States, and publfc
and make recommendations w Congre' to elimi
reduction i
1 12) develop, test and disseminate model source
fessEsr dMigned to highiight »uS
(13) establish an annual award program to recognize
SEC.
STATES roR STATE TECHmcAL ASSISTANCE
the
.. rn lack °f i
(3) Provide training in source reduction
-------
104 STAT. 1388-324 PUBLIC LAW 101-508-NOV. 5, 1990
(e) INFORMATION.— States receiving grants under this section shall
make information generated under the grants available to the
Administrator.
<2 USC 13105 SEC. 6«0«. SOURCE REDUCTION CLEARINGHOUSE.
So tn oriental. Probably should b» "
-------
PUBLIC LAW 101-508—NOV. 5, 1990 104 STAT. 1388-325
the Administrator finds other categories to be more appro-
priate:
•At Equipment, technology, prdeessior procedure modi-
fications.
• B) Reformulation or redesign of products.
'd Substitution of raw materials.
D> Improvement in management, training, inventory
control, materials handling, or other general operational
phases of industrial facilities.
41 The amount expected to be reported under paragraph (1)
and 2' for the two calendar .years immediately following the
calendar year for which the report is filed. Such amount shall
be expressed as a percentage change from the amount reported
m paragraphs ' 1) and (2).
•01 A ratio of production in the reporting year to production in
the previous year. The ratio should be calculated to most closely
reflect all activities involving the toxic chemical. In specific
industrial classifications subject to this section, where a feed-
stock or some variable other than production is the primary
influence on waste characteristics or volumes, the report may
provide-an index based on that primary variable for each toxic
chemical. The Administrator is encouraged to develop produc-
tion indexes to accommodate individual industries for use on a
voluntary basis.
16) The techniques which were used to identify source reduc-
tion opportunities. Techniques listed should include, but are not
limited to, employee recommendations, external and internal •
audits, participative team management, and material balance
audits. Each type of source reduction listed under paragraph (3)
should be associated with the techniques or multiples of tech-
niques used to identify the source reduction technique.
' (7) The amount of any toxic chemical released into the
environment which resulted from a catastrophic event, re-
medial action, or other one-time event, and is not associated
with production processess during the reporting year.
18) The amount of the chemical from the facility which is
treated (at the facility or elsewhere) during such calendar year
and the percentage change from the previous year. For the first
year of reporting under this subsection, comparison with the
previous year is required only to the extent such information is
available.
ic) SARA PROVISIONS.—The provisions of sections 322, 325(c), and
326 of the Superfund Amendments and Reauthorization Act of 1986
shall apply to the reporting requirements of this section in the s*™e
manner as to the reports required under section 313 of that Act. The
Administrator may modify the form required for purposes of report-
ing information under section 313 of that Act to the extent he deems
necessary to include the additional information required under this
section.
id) ADDITIONAL OPTIONAL INFORMATION.—Any person filing a
report under this section for any year may include with the reP01^
additional information regarding source reduction, recycling, and
other pollution control techniques in earlier years.
ie) AVAILABILITY OF DATA.—Subject to section 322 of the
Superfund Amendments and Reauthorization Act of 1986, the
Administrator shall make data collected under this section publicly
-------
available in the same manner as the data collected under section
313 of the Superfund Amendment* and Reauthorization Act of 1986
42 USC 13107 SEC. 6408. EPA REPORT.
fa) BIENNIAI. REPORTS.—The Administrator shall provide Congresa
with a report within eighteen months after enactment of this sub-
title and biennially thereafter, containing a detailed description of
the actions taken to implement the strategy to promote source
reduction developed under section 4(b) and of the results of such
actions. The report shall include an assessment of the effectiveness
of the clearinghouse and grant program established under this
subtitle in promoting the goals of the strategy, and shall evaluate
data gaps and data duplication with respect to data collected under
Federal environmental statutes.
(b) SUBSEQUENT REPORTS.—Each biennial report submitted under
subsection (a) after the first report shall contain each of the
following:
(1) An analysis of the data collected under section 6607 on an
industry-by-industry basis for not less than five SIC codes or
other categories as the Administrator deems appropriate. The
analysis shall begin with those SIC codes or other categories of
facilities which generate the largest quantities of to*ic chemical
waste. The analysis shall include an evaluation of trends in
source reduction by industry, firm size; production, or other
useful means. Each such subsequent report shall cover five SIC
codes or other categories which were not covered in a prior
report until all SIC codes or other categories have been covered.
(2) An analysis of the usefulness and validity of the data
collected under section 6607 for measuring trends in source
reduction and the adoption of source reduction by business.
(3) Identification of regulatory and nonregulatory barriers to
source reduction, and of opportunities for using existing regu-
latory programs, and incentives and disincentives to promote
and assist source reduction.
(4) Identification of Industrie* and pollutants that require
priority assistance in multi-media source reduction 71
(5) Recommendations as to incentives needed to encourage
investment and research and development in source reduction.
(6) Identification of opportunities and development of prior-
ities for research and development in source reduction methods
and technique*.
(7) An evaluation of the co«t and technical feasibility, by
industry and processes, of source reduction opportunities and
current activities and an identification of any industries for
which there ar« significant barriers to source reduction with an
anal; ^ia of the basis of this identification.
(8) An evaluation of methods of coordinating, streamlining,
and improving public access to data collected under Federal
environmental statutes.
(9) An evaluation of data gaps and data duplication with
respect to data collected under Federal environmental statutes.
In the report following the first biennial report provided for under
this subsection, paragraphs (3) through (9) may be included at the
discretion of the Administrator.
" So in oncmiL Probably ihould b> "nducooa."
-------
PUBLIC LAW 101-508-NOV. o. 1990 104 STAT 1388-327
SEC ttflt. SAVINGS PROVISIONS.
ferf SSftL " ^Vubtitle 9ha11 5* ^nstrued to modify or inter * "* I3l°8'
fere with the implementation of title in of the StiiXSj
Amendments and Reauthoruation Act of 1986 3"Perfund
•b) Nothing contained in this subtitle shall be construed
preted or applied to supplant, displace, preempt or otherSS2'
ish the responsibilities and liabilities under other
law. whether statutory or common.
SEC. 6610. AUTHORIZATION OF APPROPRIATIONS
h^^^
grant programs to States issued pursuant to section 6605.
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IRONMENTAL ASSISTANCE TO
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ENVIRONMENTAL PROTECTION— MERCt
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H.A. No. 31-377
SHU- No. 721(5
AN ACT CONCERNING MERCURY BATTERIES.
MS in General Assembly
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Business which shall advise
i waste requiring separate
uric oxide batteries from a
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ill be reasonably prominent
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disposal and that the retailer is required to accept used mi
. consumer in accordance with the provisions of this section.
a location on or near the display area of such batteries and
in size so as to carry out the provisions of this section.
tteries from consumers and
jatteries from retailers or
ler or a wholesaler shall be
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(c) No retailer shall refuse to accept used mercuric oxide
no wholesaler shall refuse to accept used mercuric oxid
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« «
CHAPTER 21 1
assachusetts Toxics Use Reduc
M
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Definitions.
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Responsibilities of the Department
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Improved Enforcement of Toxics
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Toxics Use Reduction Waiver.
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Citizen Involvement.
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Trade Secret Protection.
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Penalties.
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immmzmg ihe risks a»6«!ated with
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rd and prumnte the competitive advani
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mis in the production and use of toxic
li through the programs established
'elated slate programs;
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wealth, and
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nation and cooperation between all i
ted programs.
ions of this act are severable. and
be held unconstitutional by any cour
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§17. Toxics Use Reduction Waiver.
A toxics user may petition the department for the temporary waiver of
any law whl,», the department administers or any regulation adopted by the
department if the toxics user proposes to comply with such law or regulation
through implementation of a toxics use reduction technique or combination
ot toxics use reduction techniques in preference to other techniques or
hrough use of innovative toxics use reduction techniques. By January 1
1/Jl, the department shall develop regulations governing waiver applica-
tions and issuance of waivers. •
The department may grant a waiver if th.e department finds that the
tollowing conditions are met:
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(B) that the proposed technique or combination of techniques will not
cause or contribute to an unreasonable risk to public health or safety or
the environment in their operation, function or malfunction; and
((.) for waivers regarding the use of innovative toxics use reduction
.techniques, that the proposed technique or combination of techniques
ultimately will achieve greater toxics use reduction than currently avail-
able toxics use reduction techniques; and
(D) for waivers regarding the use of a toxics use reduction technique
or combination of such techniques in preference to other techniques, that
the long-term benefit to the environment from the proposed technique or
combmat.on of techniques outweighs the benefits to the environment
trom more prompt compliance through other techniques.
The department shall decide whether or not to issue a waiver within one
hundred and twenty calendar days of receiving an application for a waiver.
Any waiver granted shall be for a period not to exceed two years. A toxics
user may reapply for a waiver if he has been initially refused, or may apply
tor an extension of a current waiver. The department shall make decisions
on these determinations within sixty calendar days of receiving said applica-
The department shall monitor the implementation and effectiveness of the
approved toxics use reduction techniques. If at any time the department
nnds that the toxics user has not made a good faith effort to implement the
approved toxics use reduction techniques or that the application was not
made in good faith, the waiver shall be terminated and the toxics user shall
nave twenty-one calendar days to achieve compliance with the requirements
prescribed by the laws and regulations from which the waiver was granted.
For violations which continue beyond the twenty-one day limit the toxics
user shall be considered in violation of this chapter and subject to the
penalties established in section seventeen.
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Pollution Prevention in
Business Law
NATIONAL POLLUTION PREVENTION CENTER FOR HIGHER EDUCATION
Selected Reading Material
These documents were determined to be some of the key documents in the field
related to pollution prevention. They are provided as background materials
to save faculty the time of locating them in the library.
Selected by Lynda J. Oswald, Assistant Professor of Business Law,
University of Michigan
Articles
Scott W. Clearwater & Joanne M. Scanlon, Legal Incentives
for Minimizing Waste, 10 ENVTL. PROGRESS, Aug. 1991, at 169.
Lynn E. Grayson, The Pollution Prevention Act of 1990:
Emergence of a New Environmental Policy, 22 Envtl. L. Rep.
(Envtl. L Inst.) 10,392 (1992).
Laksnman Guruswamy, Integrated Thoughtways:
Re-Opening of the Environmental Mind? 1989 Wis. L. Rev. 463.
Stephen M. Johnson, From Reaction to Proaction: The 1990
Pollution Prevention Act, 17 COLUM. J. ENVTL. L. 153 (1992).
Statutes
Connecticut Environmental Assistance to Business Act,
Conn. Gen. StaL Ann. App. Pamphlet, PA 91-376 (1992).
Voluntary state statute.
Massachusetts Toxics Use Reduction Act, Mass. Ann. Laws .
Ch. 211 Sec. 1-23 (Law. Co-op Supp. 1992).
Mandatory state statute.
Pollution Prevention Act of 1990, 42 U.S.C. Sec. 13101-13109.
The federal statute.
National Pollution Prevention Center, University of Michigan
Dana Bidg. 430 E. University, Ann Arbor, Ml 48109-1115
Selected Readings
August 1994
-------
*»/
•k
in
tt>
rk
National Pollution Prevention Center
430 E. University, Dana Building
Ann Arbor. MI 48109-1:15
"Reprinted with the permission of the American Institute
of Chemical Engineers. © 1991 AIChE. All rights
reserved."
Legal Incentives for Minimizing Waste
Scott W. Clearwater and Joanne M. Scanlon
Winston & Strawn, 1400 L Street, N.W., Washington, D.C. 20005-3502
Waste minimization, or pollution prevention, has become an integral component
of federal and state environmental regulation. Minimizing waste offers many
economic and public relations benefits. In addition, waste minimization efforts
can also dramatically reduce potential criminal requirements. This paper
addresses the legal incentives for minimizing waste under current and proposed
environmental laws and regulations.
MO. 3}
INTRODUCTION
Waste minimization, or pollution prevention, has become a
popular phrase in today's age of increased environmental reg-
ulation and potential liability. The U.S. Environmental Pro-
tection Agency (EPA) estimates that $120 billion is spent
annually "to treat or contain wastes once they are gener-
ated" l/J. Further, the agency states that hazardous waste
Itcatment and disposal costs have risen as much as 300 percent
over the past decade due to the ban on land disposal of haz-
ardous waste, minimum technology requirements for hazard-
ous waste units, and limited treatment and disposal capacity
{2\. Ibid.
Through waste minimization and pollution prevention, EPA
anticipates that industrial facilitates can save money on waste
management, reduce the use of raw materials, and minimize
potential environmental liability (2]. Despite these incentives
to minimize waste, corporations are often reluctant to com-
mence waste minimization programs prior to being forced to
do so by federal or state government, and incurring substantial
criminal and civil penalties. Potential toxic tort and Superfund
liabilities can also be substantial.
Legal incentives for waste minimization exist under all major
environmental laws, including the Resource Conservation and
Recovery Act (RCRA), the Clean Air Act, the Clean Water
Act, and Superfund. Moreover, under each of these statutes,
(here is always the threat of federal, state, and private citizen
enforcement actions, as well as potential criminal liability.
Penalties under these laws can amount to as much as $25,000
per day for each violation. Needless to say, such penalties can
easily Result in the assessment of multimillion dollar fines
against a company. Furthermore, mandatory jail time has be-
come a stark (and increasingly common) reality for environ-
mental crimes.
Ai a result of increased environmental liability, companies
must Devaluate past waste disposal practices and devise in-
novative sc!u(ions to recover and recycle materials that were
previously released or disposed to air, land, or water.
Environmental Progress (Vol. 10, No. 3)
Discussion
Waste Minimization: An Historical Perspective
Waste minimization and pollution prevention have recently
captured the attention of EPA and the public. As President
Bush announced in October, 1990:
Environmental programs that focus on the end of
the pipe or the top of the stack, on cleaning up
after the damage is done, are no longer adequate.
We need new policies, technologies, and processes
that prevent or minimize pollution—that stop it
from being created in the first place [4\.
As defined by EPA, waste minimization is:
The reduction, to the extent feasible, of hazardous
waste that is generated prior to treatment storage
or disposal of the waste stored or disposed of. It
is defined as any source reduction or recycling
activity that results in either (I) reduction of total
volume or of hazardous waste; (2) reduction of
toxicity of hazardous waste; or (3) both, as long
as that reduction is consistent with the general goal
of minimizing present and future threats to human
health and the environment [5].
With President Bush's recent "mandate" in place, EPA is
now attempting to move to the forefront of the waste min-
imization and pollution prevention arena. However, waste
minimization goals have been around for a number of years.
Waste minimization was first introduced as a national policy
in the 1984 Hazardous and Solid Waste Amendments (HSWA)
to RCRA. Despite this professed waste minimization policy,
however, only a few regulations fore? industry to minimize
waste.
RCRA provides a prime example of the absence of man-
datory waste minimization provisions. HSWA endorses a waste
August, 1991 169
-------
minimization pohc> and, in that Vint, requires hazardous
v-a^te generators to have programs in place to reduce the vol-
ume and toxicity of their waste to the degree economically
feasible, and to minimize present and future threats to human
health and the environment from treatment, storage, and dis-
posal methods. However, under this provision it is within a
company's discretion to determine what level ,.9!" waste min-,
imizauon is "economically feasible." In fact, EPA recognizes
that this term "is to be defined and determined by the generator.
and is not subject to subsequent revaluation by EPA" [6].
Thus, the generator has ;he flexibility to determine what is
economically practical for the generator's circumstances and
there is no real mechanism to enforce compliance with RCRA's
w-aste minimization goal [7]. Ibid.
\n addition to implementing waste minimization programs,
RCRA § 3002 (a) (6) requires hazardous waste generators to
identify in their biennial reports to EPA (or the State): (1) the
efforts undertaken during the year to reduce the volume and
toxicity of waste generated; and (2) the changes in volume and
toxicity actually achieved in comparison with previous years,
to the extent such information is available. Once again, no
direct incentives are provided in RCRA to force waste min-
imization efforts.
Finally, HSWA's land ban had the indirect effect of forcing
waste minimization. Specifically, HSWA prohibited land dis-
posal of hazardous wastes that do not meet a specified treat-
ment standard using the best demonstrated available
technology. This ban on land disposal caused generators to
analyze methods for reducing the volume and/or toxicity of
the hazardous waste generated. EPA's recent regulations gov-
erning the burning of hazardous waste in boilers and industrial
furnaces may have this same indirect effect of minimizing waste
Waste Minimization: Today's Incentives
Although there are few direct regulatory incentives for waste
minimization, today's climate of increased criminal and civil
liability should encourage a corporate pollution prevention
philosophy. If the threat of jail time does not provide a suf-
ficient incentive for minimizing waste, substantial fines, as well
as Superfund and toxic tort liability, will attract a corpora-
tions's attention.
Criminal Liability
Throughout the eight-year existence of the U.S. Department
of Justice's Environmental and National Resources Division,
criminal prosecutions for environmental crimes have increased
sharply. !n all, the Division has successfully sought indictments
of 703 defendents — 222 corporations and 481 individuals. A
total of 581 convictions resulted — 163 corporations and 354
individuals. Fines alone amounted to over $56 million. Par-
ticularly eye-opening is the fact that under federal sentencing
guidelines, persons convicted of illegally storing or transport-
ing hazardous wastes will, in most cases, be subject to man-
datory prison terms.
Fiscal year 1990 was a record year for criminal enforcement
actions. During 1990, EPA referred 375 civil cases and 65
criminal cases to the Justice Department. The Justice De-
partment returned 134 indictments in FY 1990 and achieved a
95 percent conviction rate. More than three quarters of these
indictments were against corporations and their top officers.
Moreover, ;n 1990 courts sentenced environmental violators
:o a total 01 "45 months in prison, which was reduced to 222
months after suspension of sentences. According to the Justice
Department, more than half of the individuals convicted last
>ear tor environmental crimes were given prison sentences,
with about three quarters of those persons serving jail time,
which averaged more than a year. Aside from prison sentences,
the Justice Department estimates that fines imposed for en-
vironmental crimes rose to a record SiO million in FY
up from $12.7 million in FY 1989 [9\.
The following provide a few examples of this dramatic trend
m criminal enforcement for environmental violations:
1. The president of a California hazardous waste man-
agement company was sentenced December 3, 1990 to
six months in jail and fined $28,000 for illegally storing
and transporting hazardous waste in violation of RCRA
[io\.
2. In a Clean Water Act criminal case, a Massachusetts
metal finishing company president was sentenced No-
vember 11, 1990 to serve 26 months in prison, placed
on two years probation, and ordered to pay a $400,000
fine. His company was fined $50,000 and ordered to
pay insurance premiums for two employees exposed to
toxic levels of nitric acid, nitrogen dioxide, and nickel.
Both the president and the company were convicted in
May 1990 of illegally discharging nickel plating wastes
and nitric acid from the company's metal finishing op-
erations to the public sewer system [II].
3. On November 16, 1990 the Weyerhaeuser Company
pleaded guilty to criminal charges and agreed to pay
$500,000 for discharging paint wastes and wash water
into a river in violation of the Clean Water Act [12]. •.
4. On November 5, 1990, a Kentucky company, and its
president were indicted on eleven counts of violating the
Safe Drinking Water Act. They were charged with will-
fully constructing and operating five underground in-
jection wells to inject fluids into an'underground
drinking water source without obtaining a permit. If
found guilty, the president faces a maximum jail sen-
. tence of 35 years and a $2.75 million penalty. The com-
pany could be fined up to $5.5 million [13].
Civil Liability
In addition to the record criminal prosecution during FY
1990, the Justice Department had the largest ever total civil
penalty assessments, amounting to $32 million, with the largest
single civil penalty being assessed against Texas Eastern Pipe-
line Company, which was fined $15 million.
Under most environmental statutes, civil penalties can be
assessed up to $25,000 per day per violation. EPA is making
a concerted effort to increase civil penalties. Penalties should
be sufficient to reflect the gravity of past violations, deter
noncompliance, and eliminate economic incentives to violate
the law. The following represent some cases studies of both
litigated and settled environmental cases brought by both gov-
ernment and private citizens:
1. Public Interest Research Group of New Jersey (NJPIRG)
filed a Clean Water Act citizen suit against Powell Duf-
fryn Terminals, a bulk chemical storage facility, in 1984.
After 5 years of litigation, the federal district court as-
sessed a record $3.2 million dollar penalty. The court
concluded that the maximum penalty that could be as-
sessed against Powell Duffryn was $4.2 million, but
because the State had aquiesced in Powell Duffryn's
noncompliance, the court reduced that maximum
amount by $1 million. On appeal, the Third Circuit held
that the district court's $1 million reduction was im-
proper—in other words, even if the State agrees that a
'facility.is doing the best that it can in controlling pol-
lution, if a permit is violated, no reliance can be made
on state nonfeasance [14].
2. In a RCRA action, a citizen's group intervened in an
action brought by EPA, claiming that Environmental
Waste Control's (EWC) operation of a hazardous waste
landfill violated several aspects of RCRA. After con-
cluding that the company was liable because it had vi-
Co,,irr,nmontal Prnnreqs /Vol. 10. No. 3)
-------
Olated the Statue, the court calculated a maximum
penally of over S60 million. Finding this amount to be
excessive, however, the court reduced the penalty to
S2,'"'S,OQO, The court also issued an injunction per-
manently dosing the landfill, a remedy which the citi-
«n'i group. no( EPA. had sought [15].
J Exxon recently sealed a Clean Water Act citizen suit
alleging violations of Exxon's wastewater discharge per-
mit at the Company's Bayonne, New Jersey facility. In
this case, two citizen groups provided Exxon with 60
dajs' notice of their intent to file a Clean Water Act
citizen suit, During that 60-day period, Exxon installed
a granulated activated carbon unit, which greatly im-
proved Exxon's discharge. Despite Exxon's good faith
attempts to minimize pollutants in its wastewater dis-
charge, the citizen groups filed suit. Under the terms of
the settlement agreement, Exxon agreed to invest
52,845,000 for environmentally beneficial mitigation
projects at the Bayonne facility. In this connection,
Exxon agreed to spend SI. 830,000 to install dome roofs
on fifteen petroleum product storage tanks and to spend
$995,000 for the design and implementation of a petro-
leum product collection system at the facility's barge
pier to allow further recovery of petroleum products
from the facility's wastewater collection system (16\.
In a sense, the Exxon settlement agreement was a "win-
win" situation, On the other hand, the citizen suit re-
sulted in minimization of waste discharged to the water-
way, In addition, without admitting liability, Exxon
agreed to fund environmentally beneficial mitigation
projects, instead of risking substantial civil penalties.
After almost 6 years of litigation, Union Oil of Cali-
fornia recently agreed to a settlement in a Clean Water
Act case with the Sierra Club and the State of California
requiring Union Oil to make payments totaling
SS.550,000. Attorney's fees alone amounted to SI. 25
million [I7\,
States are also becoming more active:
K The State of Washington recently fined a solvent re-
cycling firm over S900.000. Alleged violations included
selling fuel containing hazardous waste, hazardous waste
spills resulting in soil and groundwater contamination,
exceeding waste storage capacity, failing to report waste
received, improper labelling of waste containers, storing
flammable waste in violation of fire codes, and improper
employee training and spill prevention plans [18].
-< The Monsanto Co. recently agreed to pay a SI million
penalty for illegally disposing untreated wastewater con-
taining hydrochloric acid. The company was also di-
rected to pav an additional 5200,000 to a state trust fund
4,
In Kentucky, Ashland Petroleum Co. agreed in Novem-
ber 1990 to pay a S'JO.uOO penalty and construct ad-
ditional emission control equipment costing S65 million
" o settle claims the company violated state air quality
.emulation* at its Catlettsburg, Kentucky refinery. The
$65 million investment includes S15 million to construct
an electrostatic preopiiator to reduce emissions from
The refiner\S ,-atalvtic cracking unit and a S-T million
filler recovery unit :o enhance ;he refinery's ability to
rmnunue «utiur JioxsJe emisiions [20].
u\ic fort Liability
i .,tfilti> "(Suiting riom toxic :ort claims can also be sub-
ipf.a! Fc»f ?\ampie. te'tlemeni agreements amounting :o
i' SI? ini!lion have been reached" between :our chemical
companies and more than 1200 individuals who claimed injury
from dioxin contamination in Times Beach, Missouri [21].
Similarly, in a toxic tort case against Ashland Oil, the jury
awarded a $10.3 million judgment to four persons alleging
refinery emissions damaged their property and quality of life
122}.
Super fund Liability
Superfund costs have also risen dramatically, growing by
more than 28 percent in FY 1990. EPA estimates that private
companies have agreed to pay $1.3 billion to clean up haz-
ardous waste sites. A total of 151 Superfund cases were filed
in 1990, 50 percent more than filed the year before [23]. Also,
during FY 1990, EPA referred 79 cases, valued at $185 million,
for prosecution to recover agency expenditures. This represents
a 30 percent increase over 1989 figures. EPA also issued 131
unilateral administrative orders in FY 1990, up from 100 in
1989 [24].
A few recent examples typify this upward trend. Under a
Superfund consent decree filed in federal court in October
1990, a group of 23 companies agreed to pay nearly $3 million
for cleaning and monitoring costs at the Lees Cane Landfill
Superfund site in Kentucky [25]. Similarly, at Arizona's largest
Superfund site, the responsible parties agreed to pay approx-
imately $17.3 million to remove volatile organic compounds
from ground water [26]. Finally, to clean up the New Bedford,
Massachusetts harbor and for natural resources damages, the
Justice Department reached an agreement with three parties
requiring them to contribute over $78 million [27].
Minimizing Potential Liability
Because of the threat of significant criminal and civil liability
resulting from waste disposal practices, waste minimization
incentives are increasing every day.
Statutory Incentives
The Clean Air Act Amendments of 1990. The Clean Air Act
Amendments of 1990 provide a significant opportunity for
pollution prevention. Specifically, Title III offers credit for
early reductions of toxic air emissions and Title IV provides
economic incentives for reducing sulfur dioxide and nitrogen
oxide emissions. First, under Title III, industrial sources can
obtain a six-year extension from compliance with Maximum
Achievable Control Technology (MACT) standards if they:
(1) achieve reductions of 90 to 95 percent below a baseline year
(no earlier than 1987) before such standards are propcjcu; or
(2) enter into enforceable commitments to achieve such re-
ductions by January 1, 1994. Clean Air Act § 112 (i) (5).
However, despite this statutory incentive to reduce emissions
early, as yet, there are no EPA guidelines on how to establish
an appropriate baseline year. Moreover, a source could en-
counter several problems in establishing an appropriate base-
line. First, EPA could contend that the year chosen by the
source is not representative of the source's historic emissions.
Second, EPA could dispute the methodology that the source
used to calculate its emissions. Thus, a source could spend
considerable funds attempting to comply with the voluntary
reduction provisions only to later have EPA dispute the source's
baseline. If EPA prevails, the source could be required to
immediately install MACT, even though the source had already
drastically reduced emissions. Prior to the issuance of EPA
guidance on this issue, it may be advisable to obtain EPA
aJ\ance approval of the source's baseline emissions.
Emission reductions also exist under Section 112 (i) (6) of
the Clean Air Act, as amended. That section provides that if
an existing source has installed Best Available Control Tech-
nolog> ('BACT) (to comply with Prevention of Significant De-
terioration Requirements) or Lowest Achievable Emission Rate
*»vironmefflal Proaress
-------
i
iLAER' -o . •-.-,, .* :n -ion.acamrr,eni new >o.u.rce review) .
-nor -o.'.fte .?rornL,,;a'.ien of a standard.; ;hen thai source's,
^mpiiar.ce.Jate :s sv.er.ded /or 'five vears from.the date on
whicn BACT or LAER was installed or the reductions achieved.
This exemption .acknowledges that BACT and LAER result in
substantial emission reductions and that immediately requiring' '
any additional reductions would be i.iequitable. However, like
!he 6-vear extension of Secti'on 112 (D (5\. this exemption may
have limited effect since those pojlutants regulated by. BACT
and LAER will .only-slightly overlap .those regulated by the
Air Toxics provision. ' •
In addition to. Title Ill's emicsion reduction incentives. Tale
IV incorporates^ system of marketable allowances for sulfur ,
dioxide (SO-) and nitrogen oxide (NO J emissions. This system;
'allows sources to market their "extra" emissions reductions
(that is. reductions beyond those otherwise required) to other
sources seeking to emit more than is permitted. Clean Air Act
' <5 -*03 (b). ' •-..:•• ' '
Finally, Section "404 (d) allows the owner or operator or an
'affected'unit under Title IV to petition-crA for a two-year
extension of Title IV's 1995 SO: emissions reduction deadline..
To obtain the two-year extension, the unit must either use a
qualifying technology, or transfer its emissions reduction ob- -
ligation to another unit using a qualifying technology. A qual-
ifying technology is a technological system of continuous
emissions reduction that achieves a-90 percent reduction in
SO, emissions. The NO, eris-sion .limitation for these units
will" also be extended for two years. Clean Air Act § 407 (a).
SARA § 313. EPA considers the Toxic Release Inventory
(TRI) established under Section 313 of the Emergency Planning
and Community Right-to-Know Act to be the most powerful
'tool available to EPA at the present time for tracking pollution
prevention efforts from industrial sources. The public ac-
countability fostered by the TRI has also created a strong
incentive to minimize waste [28].
Section 313 requires certain manufacturers jo report the
amount of each of more than 300 toxic chemicals listed in the
Act that are released to the air,' land, or water. The reporting
requirements, which will expand to cover more than 28,000,
facilities nationwide for 1989 data, apply to manufacturing
plants that employ at least 10 people and use at least 10,000
pounds or manufacture at least 25,000 pounds of any TRI
chemical. ,
Several states are using the TRI as the basis for a number
of legislative efforts. Louisiana has a law mandating 50 percent
reduction in toxic air emissions by 1994. Massachusetts and
Oregon have enacted similar laws. New Jersey now requires
firms to submit with their TRI data additional information
about pollution prevention practices. Qther states have insti-
tuted a fee system based on TRI emissions to provide an eco-
"nomic incentive to reduce emissions.
EPA is also using Section 313 violations, to force waste
minimization and pollution prevention efforts. For example,
EPA Region V -announced in December 1990 that two man-
. ufacturers agreed to install pollution controls in exchange for
' 'reduced fines under Section 313. One company agreed to spend
585 000 to incorporate pesticides automatically into the com-
pany's fertilizer product in lieu of a manually operated system.
The'other company agreed to spend over 545,000 to convert
from solvent-based to water-based coatings in its plastics man-
Vfactunng operations. For both cases. EPA reduced the pro-
posed penalties from.a combined 576,000 to just over 521,000
^Pollution Prevention Aci of /990: The Po'tlution'Prevention
Act ot" 1990. requires EPA ;o develop and implement a strategy
•o promote pollution prevention. The Act includes provisions
Jirec"-nB EPA-to set measurable goals,, to consider .the impact
of r-euiation on source, reduction;, and to evaluate regulatory
'and non-regulatory barriers. In addition, ihe Act amends .,K<
•ion 313 of SARA :o require industries to quamuv ihc eiicci
of source reduction, as-well as recycling and treatment, in
' reducing environmental.releases .of toxic chemicals.
172
August. 1991
• To f7ipiorrit?ni-:he-mandaies o/.'he Pollution Preveni:on A'.-/
EPA ;S reiving bn'voluntafy efforts-, -vhich will offer ,ndu.<:r.
•.he advantage.of maximum flexibility., and sufficient time -j
'make economically sound changes in production or use of raA ;
materials. [30].
EPA 's Pollution Prevention Strategy. EPA's recently issued
Pollution Prevention Strategy anticipates that."pollution pre-
'•vention can be the most effective way to' reduce risks by re-
ducing or eliminating pollution at its source," [31].- In.EPA's '
assessment, waste minimization is often the most cost-effective
option because it reduces raw material losses, the need for
extensive "end of pipe" pollution control technologies, and
long-term liability. Thus, EPA concludes that pollution pre-
vention "offers the unique advantage of harmonizing envi-
ronmental protection with .economic efficiency" [32]. Ibid. ..
EPA's Pollution Prevention Strategy identifies two primary
goals: (I) investigate and, where possible, eliminate barriers
to cost-effective investments in prevention in existing and new-
regulatory programs; and (2) encourage voluntary actions by
industry that reduce the need for EPA to take action.
To institute this program, EPA has devised an Industrial
Toxics Project. Specifically, on February 7, 199.1, EPA
launched, a new initiative to prevent toxic chemical pollution
[33]. EPA's new initiative requests over 600 designated com-
panies to reduce pollution voluntarily to air, water, and land. -
The Project targets seventeen chemicals from the manufac-
turing sector and develops focused prevention strategies for
them. EPA's goal is to reduce aggregate environmental releases
of these targeted chemicals, as measured by the Toxics Release
Inventory in 1988,' by 33 percent by the end of 1992 and at
least 50 percent by the end of 1995. Although participation in .
the Industrial Toxics Project is voluntary, EPA will work with
companies to ensure that any initiative taken to reduce emis-
sions ahead of statutory schedule receives appropriate credit
toward complying with any'subsequent regulatory require-,
ments Furthermore, EPA Administrator Reilly has expressed
his commitment to develop the incentives necessary to ensure
participation in this Project and to assure companies that vol-
untary, compliance will not result in the forfeiture of various
" allowances under the new Clean Air Act [34].
Future Regulatory and Liability Incentives
in addition'to requesting voluntary compliance with waste
minimization efforts, EPAis expected to continue its increasec
civil and criminal enforcement efforts. EPA's "Great Lakes
Initiative" is representative of the types of environmental law-
suits to come.'Under this Initiative, the Justice Department
filed three suits in federal district court against three compame<
alleging violations of the Clean Air Act, the Clean Water Act
the Safe Drinking Water Act, and RCRA [35]. These types o-
suits test the agency's new multi-media, geographic-based ap
proach to environmental law violations.
: Alsd.-on February 22, 1991,.EPA and the Justice Depart
ment filed eight lawsuits and 20 administrative actions to en
, force RCRA's restrictions on land disposal of hazardous wast
[36] One of the federal court actions involved a $1.85 miliio-
settlement with E. I. DuPont de Nemours Co. \37\-, D"P°r
was charged with unlawful disposal of corrosive, acids an
solvent wastes, as'well as waste analysis and recordkeepm
violations. To settle the lawsuit, DuPont agreed to.audit corr
pany facilities nationwide to .ensure compliance-with RCRA
land ban restrictions. • ' . ' ...
While civil-and criminal liability will continue to increase
EPA has also requested public comments, on ways to revis
' EPA's regulations to better encourage'waste minimization ar,
pollution prevention. In this regard, oh October 5, 1990, EP
•Vied a'request for comments on the desirability and feasibur. :
- oVVasie minimization incentives'[ML EPA requested coir
ments on a number of specific issues, which, if implements
by the.agency','could dramatically change the nature of curre:
• Environmental Progress (Vol.'to,.No.
-------
:'itt definition of
,t
fi/*4
_ { .
Uf-t, EP-\ •> 4"f-r,p!;"g to "expend 'o criticism ;hat EPA's
• •tfnt perra.tt.ng process is cufnoersome. time-consuming,
j«J tj'*!tf^ associated regulators costs and liabilities.
"$t>-* rights to generate a limited quantity or toxicity
Ot'"-t.u.irdv>ui *aste. EP^ sets forth two variations of this
aitve, Lnd«r the first variation, a facility, in the first
would receive transferable rights for the quantity of
*JS!«T generated during a base period. The next year the facility
AJ,uid"re>eive rights to generate a smaller percentage (e.g., 5ro
and iO on over time. If a facility implemented waste
n efforts which reduced its need for these rights,
'ojfd *e!l them to other firms. Under the second alternative,
\ Aouid allocate waste generation riehts without respect
to a facility's individual current waste generation rates. To
allocate those rights, EPA would hold auctions with companies
M,hi».n have bought the rights being able to trade them to others
,f ihey did not need them {40}. Ibid.
Should EPA consider waste characterization assessment and
listing incentives? One potential long-term option focuses on
expanding the data collection and analysis portion of the listing
process to require collection and dissemination of source re-
duction and recycling information for processes that generate
the waste [41]. Ibid. Another approach would be to allow
generators to enter into an agreement with EPA that provides
time for the generator to identify, design, and install source
reduction and recycling technologies that will either signifi-
cantly reduce or eliminate hazardous waste generated [42].
Ibid, . . .
Should EPA consider waste minimization incentives in the
RCRA Treatment, Storage, and Disposal ( TSD) permit proc-
ess? EPA suggests that the agency could include waste min-
imuation commitments as a condition to permit approval.
EPA is also analyzing whether to require permittees to submit
a waste minimization facility plan either as a condition for
issuing a TSD permit, or as a supplement that must be sub-
mitted within a certain time frame (e.g., 150 days) following
issuance of a permit. The facility plan would include infor-
mation on the amount and type of hazardous waste generated,
identification of the source of waste by waste stream, an anal-
ysis of technically and economically feasible hazardous waste
reduction techniques, and a program and schedule for imple-
menting feasible reduction techniques [43]. Ibid.
Should compliance monitoring and enforcement .play a
greater role in promoting waste minimization? EPA believes
;hat broadened enforcement efforts could promote pollution
prevention beyond that achieved by market forces. Specifi-
cally. EPA's enforcement settlement process will be used by
the agency so implement pollution prevention strategies by.
.nworporating 'hem into settlement agreements. "For example-,
ier.tements could require a company to conduct periodic waste
audit* or to submit a comprehensive analysis of the effect of
*a»te mtntmuation on its operations, or make specific process
^hangeito minimize waste generation" [44]. Ibid. EPA expects
:!w pohcv. (o take effect in FY 1991 . to be applicable to both
administrate actions and civil judicial settlements negotiated
:n «cnj«ifKt'.on with the L'.S. Department of Justice. Specifi-
.at">, EPA encourages the mcWsion of pollution prevention
:'.v.J»:ion*. as either :he means cf correcting a violation; or as
jJJi'iianat conditions' incidental to injunctive relief. Such Con-
!t.jns ma> offer the best chance of avoiding recurring or
"'•" ,!-i violations, Aitft(>m negative cross-media impacts, pro-
• iih'J 'hat technologic-lily and economically feasible options
ex,.' LP\ " •'*:$. however, that c:vi! penalties 'w-.U continue
•o f
-------
:5 L S. v Hdrd\. No. C
'
28.
29.
30.
31.
32.
33.
34.
•
-J5.
D Ky. October.
L' S. f. Tuscon, So. •Xl-58" (D. Ariz. Sept.. 2"
. 21 Encironmert Reporter (SNA), Current Developments,
at 1656' (January .11,. 1991). ""• • ' - . '
EPA 's Pollution Prevention Strategy, 56 Fed. Reg. 7849
(February 26, 1991).- '. . '
21 Environment- Reporter (BNA), Current Developments,
at 1601 (December 28, 1990). ; • "
EPA's Pollution Prevention Strategy, 56 Fed. Reg. 7849,
7856 (February 26,- 1991). ' i ".'..-
EPA 's Pollution Prevention Strategy, 56 Fed. Reg. 7849
(February 26, 1991). •.'•.'.
Ibid. . .
EPA, Office of Communication and Public Affairs, En-
• i-ironmentdl ,Vewj, February 7, 1991.
EPA Administrator William Reilly, speaking at "Playing
By The Rules: Surviving Clean Air in the 1990s," spon-
sored by Winston & Strawn, Chicago (March 5, 1991).
'1// .<* "Bethlehem Steel Corp., No. H90-326 (N.D, III.);
U S. i.-. Inland Steel, No. H90-327 (N-.D. 111.)'; C: S
Federated Metals Corp, No. H90-328"(N,D- III.)'/. : ""•
21 Environment Reporter (BNA). Currint Dev
-------
J
-------
' REPORTER
The Pollution Prevention Act of 1990: Emergence of a New
, , - o.
Environmental Policy - ...,. •.
bv E. Lvnn Gravson:
Editors '.Summary: EPA 's toxics release invento'ry (TRI), compiled under §313
.of the Emergency. Planning and Community Right-to-know Act (EPCRA), is
the mos: comprehensive national database on toxic chemical emissions. TRI
data have helped direct national, state* and local efforts to evaluate patterns
in industrial toxic pollution, and have been instrumental in attempts to en-
courage industrial source .reduction, such as EPA'.s 33/50 initiative,, which
aims for a 33 percent voluntary reduction of releases and transfers of 17
hiqh-priority TRI chemicals by 1992 and 50 percent by 1995. EPA estimates
that in. 1989, manufacturing facilities required to report under EPCRA §313
released into the environment or transferred off site 5.7 billion pounds of
• chemicals. EPA derived these 1989 estimates from-da:^ .',. Cl, 891 forms that
...22.569-facilities submitted to comply with EPCRA §313. Although the TRI
'fills an information gap on industrial chemical pollution, it covers only the
tip of the toxic iceberg. More than 95 percent of all chemical emissions—about
400 billion pounds-^-goes unreported each year. The TRI's role in promoting
and assessing pollution prevention efforts has been accordingly limited.
The Pollution Prevention Act of 1990 broadens the TRI's role in reducing
'chemical source pollution. The Act makes pollution prevention reporting man-
datory by requiring each TRI-regulated facility to file, beginning July 1, 1992,
a' source reduction and recycling report with'its, TRI reporting form. This
source reduction and recycling report,will detail the amount of source reduction
achieved for each TRI chemical, as well as the pollution prevention methods
employed. This Article examines the Act,'s new reporting obligations for TRI-
regulated'industries. The author discusses the reasons behind industry's cau-
tious response to the Act, ranging from implementation costs to mandated
process changes and potential enforcement ramifications. Observing that the
Act .imposes costly, increased reporting burdens on the very businesses from
whom EPA hopes to receive support for its pollution prevention objectives,
the author concludes that industry's cooperation with the Pollution Prevention
Act may depend on obtaining assurances that prevention costs expended today
will not result in higher costs from new regulatory mandates tomorrow.
A- ... • . ' •
new environmental policy aimed at preventing toxic
chemical pollution was initiated by the Pollution Pre-
vention Act of 1990 (the Act).' The new Act's goal is
•pollution prevention, or in more practical terms, pollution
source reduction. Traditional waste management methods
are cast aside in faypr of a more proactive recycling and ;
waste generation avoidance strategy.
The new law, in theory, addresses an admirable goal:
Pollution'should be prevented or reduced at the source. Any.
pollution that cannot be prevented should be recycled in an
environmentally safe manner. Disposal or release of waste
into the environment is a last resort that should also be
conducted in a safe "manner. • ' ' ,
. The reality of complying with the new, policy calls into
Ms. Grayson is a member of the environmental practice group of the-
Chicago '.avy firm of Goffield- Ungarcrti & Hams.. Ms. Grayson is the
former Chief Legal Counsel for the Illinois Emergency Services and"
Disaster Agency, and in the past served as an Assistant Attorney General
:or_'.he sute of Illinois iii the Environmental Control Division. Trie author
irateruily "acknowledges the editorial assistance of colleague Elizabeth
S. Kuccra. • . .,
•l.'p-js. L. So.'101-508. ?§6601-6<510; 104 Swt. IJSS. 1188:321 to
1388-327 (codified at -12 L'.S.C.A. §§13101-13109 (West Supp.
' . . 1991)); ' . ' . "' V '
question'the prudency of the Act. The new law imposes
costly, increased reporting responsibilities on the very busi-
nesses from whom the U.S. Environmental Protection
Agency (EPA) hopes to receive support for the accomplish-
ment of its pollution prevention objectives. Specifically, the
Act requires that regulated entities provide source reduction
.and recycling information for every toxic chemical reported
on the annual toxic chemical release form.: EPA's economic
analysis estimates that'a maximum-of 28,000 facilities are
expectedto submit a maximum of 112,000 reports on toxic
chemical releases in 1992.3 This new compliance cost to
industry of; reporting pollution prevention information is
estirnated'to be' $49!5 million the first year and more than
S36 million in ajl subsequent years. * -.--'•
This Article examines the Act and explains pollution
prevention through source reduction. It further discusses
and evaluates the new reporting obligations for businesses.
2.' 42 U.S.C.A, § 13106. See also Emergency Planning and Community
. Right-to-Know Act (EPCRA) §313, 42 U.S.C. §11023, ELR STAT. '
EPCRA 006 (tpxic chemical release inventory reporting rcquire-
men'sV _ ••
3'. 56 r-J Reg. 48475, 485'00 (1991).'
' 4. Id. ' •'• '--.''• •"••'•
€
1
-------
SF-VS vk ANALYSIS
i: ELR 10393
It a, 10 4ral>zss :r.e pcsi.^
•r.Jt TU> -;: -s'.ais '3 pc;^ -
ga-.ive impacts on industry
'.'.: r» p'r'ever.iicn objectives.
Source Reductions and Other Act Mandates
The strigle most important goat of the EPA pollution pre-
vention ~prOi?ram is source reduction. 5 As such, EPA joins
industry and environmental ieaders in advocating that pol-
lution-related problems be addressed by preventing pollu-
tion at tts source, whether through .-hanges in production
or by reducing reliance on environmentally harmful mate-
rials*. EPA supports studies that show pollution prevention
can be the most effective way to reduce risks by reducing
or eliminating pollution at its source; it also is often the
most cost-effective option because it reduces raw material
losses and the need fcr expensive "end-of-pipe" technolo-
gies, and in some instances may mitigate long-term liabih •
lies. EPA envisions that pollution prevention offers the
unique advantage of harmonizing environmental protection
with economic efficiency. *
Central to the Act is Its definition of the term "source
reduction." which demonstrates what EPA's enforcement
approach will be. Source reduction means any practice that
(1) reduces the amount of any hazardous sub-
stance, pollutant, or contaminant entering any
waste stream or otherwise released into the envi-
ronment (including fugitive emissions) prior to re-
cycling, treatment, or disposal; and
(ii) reduces the hazards to public health and the
environment associated with the release of such
substances, pollutants, or contaminants.
Th< term includes equipment or technology modifica-
tions, process or procedure modifications, reformulation or
redesign of products, substitution of raw materials, and
improvements in housekeeping, maintenance, training, or
inventory control. '
Source reduction does not include any practice that alters
the physical, chemical, or biological characteristics, or the
volume of a hazardous substance, pollutant, or contaminant
through a process or activity that is not integral to producing
a product or providing a service. * The definition of. source
reduction makes clear that the Act's focus is on changing
and altering industrial activities regarding hazardous sub-
stances before recycling, tr .^trnent, or disposal. / ,
Source reduction is fundamentally different from tradi-
tionally accepted concepts of waste management and pol-
lution control. Source reduction requires that industry evalu-
ate its manufacturing and operational practices at the outset,
as opposed to controlling possible pollution sources during
the process, or managing wastes produced as an end product.
To promote source reduction, the Act mandates that EPA
make affirmative attempts to encourage a multimedia ap-
proach to, source reduction. ' The Act directs EPA to establish
a special office to oversee the implementation of source
reduction activities on behalf of the Agency. '° In addition,
5, See 42 U S.C.A. §l310l«b).
6 56 Fed. Reg, "349 (1991) {pollution prevention strategy).
- 4: CSC A. §»3102C51(A).
L !± }t3l
-------
i: ELR 10394
•' ENVIRONMENTAL LAW REPORTER
'.ion of Sections 6 and 3, but a greater level of detail would be
implemented for the 1992 reporting > ear with the modification
of Section 7.-'' ', , ' ••
Additional information [he Act requires to be incorporated
into the Form R will 'constitute the toxic chemical source
reduction and recycling report.:o On a facility-by-facility
basis, the toxic chemical source reduction and recycling,
report must include the following source reduction-related
information for each reportable calendar year:
• quantity of chemical entering any. waste stream,
or otherwise released, prior to recycling, treatment
or disposal;- •'..'.•' • '
• amount of chemical from the facility thatisrecy-
cled.either on site or off site; , '
• 'techniques used to identify source reciutiudu op-
portunities; and
• amount of chemical that is treated either on site
, or off site. ,
In addition to the facrualdata required, the toxic chemical
source reduction and recycling report requires the calcula-
tion of a percentage change over the previous year for much
of the data collected. Production statistics and certain other
release documentation also must be included.
Pollution Prevention Strategy
On February 26, 1991, EPA published its Pollution Preven-
tion Strategy as the first step toward achieving the require-
,. rients imposed by the Act.:i According to EPA, this docu-
ment presents the Agency's blueprint for a comprehensive
national pollution prevention strategy. Specifically,'it is
designed to fulfill}two purposes: (l)'to provide guidance
and direction for efforts to incorporate pollution prevention
with EPA's existing regulatory and nonregulatory pro-
grams; and (2) to set forth a program that will achieve
specific objectives in pollution prevention within a reason-
able,.timc frame." ' • '- , ;
The first objective reflects EPA's belief that for pollution
prevention to succeed, it must be a central part of the
• Agency's primary mission of protecting human health and
the environment. To address the second objective, the strat-
egy includes a plan for targeting 15 to 20 high-riskchemicals
that offer opportunities for prevention, and sets a vpluntary
goal of reducing environmental releases of these chemicals
by 33 percent by the end of 1992, and at least, 50 percent
by the-end of 1995." This program has become known as
the Industrial Toxic Project or the "33/50" Initiative. By
establishing this program, EPA redefines its relationship
with industry by allowing companies to voluntarily select
which chemicat releases to reduce and at which facilities.
Based'on these two pursuits,-EPA will conduct the fol-
lowing activities: ,
• identifying and overcoming obstacles to preven-
tion; •'.-.' • . - ' , ••
19. Id.' ' ' '. ., ' ~ ' : . •. ~~
20. 42 U.S.C. Jl310600. (b). ' ' ' .-._'"...
21, 56 Fed. Reg. at 7849 (pollution prevention strategy). '
22. Id . ;. .'.''• • . •
23. Id. at 7850. • , •.••.,.'
• expanding public participation and choice;
• encouraging partnerships with federal agencies;
• investing 'in the states through its pollution pre-
vention incentives for states grant programs;
, • conducting outreach and training programs;
• evaluating current regulations and permits to
strengthen the regulatory framework to provide . '
further incentives for prevention; '..'',
• encouraging pollution prevention conditions in
enforcement settlements;
• developing both short-term and, long-term pre-
vention research goals; and '
• identifying new products'and technologies.
In its new strategy, EPA rara^e. three broad industrial
sectors for special attention and priority status: manufac-
turing and chemical use, agriculture, and energy and trans-
portation. EPA determined these three sectors to be a
priority as a result of the 1988 toxic release inventory
data concerning releases of toxic chemicals. The data for
fiscal year 1989 revealed the following statistics relating
to releases of toxic chemicals:
• a total of 5.7 billion pounds were released into
the environment; ' •
• 2.4 billion pounds were emitted into the air;
.-• 1.2 billion pounds were injected into Under-
ground wells;
• 913.1 million pounds were transferred off site;
• 551 million pounds were transferred to public
sewage; ,
• 444.7 million pounds were pn-site land releases;
and
• 189 million pounds were released into surface
waters.24 • " • ••
Source reduction may best be understood by considering
what it means to the EPA-designated priority sectors in
terms of operational changes and business practice modi-
fications. EPA suggests that pollution may be prevented by
adopting new approaches, which include consideration of
the followins r --ssible changes within the priority sectors:
Manufacturing and Chemical Use
• changing inputs/reducing reliance on toxic or
hazardous raw materials
• processing changes/increasing efficiency/im-
proved maintenance practices
• changing outputs/reducing reliance on toxic or
I hazardous products
Agriculture.
.• development and adoption of low-input sustain-
able agriculture practices , .
«. improved. soil conservation and land manage-
ment practices . , • '
24. 'EPA. OFFICE OF Towc SUBSTANCES, No. EPA 560/4-91-014.
•Toxics IN TrtE COMMUNITY, NATIONAL AND LOCAL PERSPECTIVES,
1989 Toxics RELEASE INVENTORY NATIONAL REPORT 56 (Sept.
-------
NEWS & ANALYSIS'
22 ELR 10395
Energy and Transportation
• increasing energy efficienc> to reduce the gen-
eration of pollutants
• increasing reliance on clean renewable energy
sources.:5
If implemented, these changes are anticipated,to reduce
releases.
Analysis of Act Impact and Implications
The goals of the Pollution Prevention Act are admirable, but
pollution prevention in this day and age does not mean that
industry will be able to eliminate all wastes from all production
processes. Pollution prevention, however, may be a cost-erfec-
tive means of minimizing waste veneration. According to the
new strategy, it is the first step in a hierarchy of options for
reducing the risks to human health and the environment from
pollution. The second logical step'in the hierarchy is responsi-
ble recycling of any wastes that cannot be eliminated at the
source. Recycling also shares many of the positive aspects of
prevention, including the conservation of energy and other
resources, and the reduction both of reliance on raw materials
and of the need for end-of-pipe treatment or containment of
Wastes. If recycling alternatives are impractical for certain
wastes, these wastes should be treated in accord with environ-
mental standards that are designed to reduce both the hazard
and volume of waste streams. Finally, any residues remaining
from the treatment of wastes should be disposed of safely to
minimize their potential for release into the environment.
Certainly, the Act promotes a more cooperative relation-
ship between industry and EPA by encouraging companies
to participate in EPA's efforts to achieve pollution preven-
tion objectives. The possibility for an improved relationship
between industry and EPA is furthered by the Act s estab-
lishing a set of presumptions instead of ironclad rules. bFA
can rely on industry to support, and to the extent feasible,
to advance the cause of pollution prevention as it has done
for several years. Industry will continue to evaluate preven-
tion opportunities, depending on the balance of associated
costs and benefits. This evaluation process may take into
account such factors as the savings in raw material ana
operating expenditures, pollution prevention costs, reduced
liabilities, and improved relationships with local commu-
nities and governmental entities. • ;
Industry representatives, however, are cautiously moru-
"toring EPA's pollution prevention efforts. While industry
supports the popularized concept of pollution prevention,
it feVrs that the data collection activities underway may be
a prelude to negative implications, such as mandated process
changes, which industry vehemently opposes. In addition,
industry fears the potential enforcement ramifications ot
the increased reporting requirements. The ultimate imple-
mentation costs associated with the Act also are a concern
for industry.
Mandated Process Changes
EPA says it is committed to promoting pollution prevention
ad a means of protecting the environment without imposing
25, 56 Fed. Reg. at 7853-54.
:6, Id. at 7855.
strict, and often expensive, command and control measures
on industry. EPA encourages voluntary action by industry,
which it believes minimizes the need for intensive federal
regulation. Fur industry, however, EPA's hand-in-hand ap-
proach may signal trouble.
Given the new detailed information concerning produc-
tion totals and manufacturing processes the Act requires to
be reported on the Form R, industry contemplates that such
information may be used not only to advance pollution
prevention goals, but also to form the technical basts to
institute mandated manufacturing process changes.
Once EPA is in possession of sufficient data to demon-
strate the viability of prevention-related technologies, it is
possible that such options will be transformed into manda-
tory obligations imposed by regulation. Since prevention-
related technologies are often site-specific, this scenario
creates ar. -r.~r^-ous disincentive for industry compliance.
Even the potential for mandated process changes is suf-
ficient risk to cause industry to reevaluate its interest m
pollution prevention. In a program where success depends
on the willingness of companies to participate, EPA should
carefully consider taking any actions along the lines of
process changes.'EPA already has informed industry that it
will not turn voluntary commitments into enforceable permit
conditions without an individual company's consent, to the
extent that those commitments go beyond a.company's
obligations under the law.:7 Armed, with the power of pre-
vention-related data, EPA may be in a position to amend
the law to reflect this promise.
Increased Enforcement Possibilities
Measuring the progress of pollution, prevention initiatives
is probably the most visible function of the new data EPA
will collect. It is unclear to industry, however, to what extent
new data may be used for enforcement-related purposes. It
is clear that EPA intends to use the prevention-related in-
formation to determine whether pollution prevention can
succeed on a voluntary basis, or whether a more enforce-
ment-oriented approach will be used to reduce toxic chemi-
cals at the source.2*
Industry has reason for concern over EPA's past enforce-
ment-related activities connected with the submission of
toxic chemical release data. Since it first appeared in 1988
toxic release inventory data has been the sole basis, and
often the supporting evidence, in numerous enforcement
actions. Given past practices, industry should restrict its
reporting to data strictly required. Even this may prove
. detrimental. .
EPA contends that vigorous" enforcement remains a pri-
mary tool for creating an incentive to reduce industrial
pollution. Generally, EPA observes that enforcement creates
an environment in which permanent solutions such as elimi-
nating some pollutants entirely may be preferred to less,
reliable approaches to compliance.» If EPA persists m em-
phasizing enforcement tactics to achieve solutions, the con-
tinued success of the voluntary pollution prevention pro-
gram is doomed. « l
27 fd, it 7861.
' 23. -Id. at 48-499. .
29. Id. at 7859,
-------
Cost Burder^s - '. , _ •'...''
EPA's economic analysis estimates that a. maximum of
28,000 facilities are expected to submit 'a maximum of
112,000 reports on releases of toxic chemicals in 1992, The
total cost to industry of reporting pollution prevention in-
formation is estimated to be $49.5 million the first year,
S37.7 million the second year, and $36.4 million in all
subsequent years. w ,
This new compliance cost increases the total annual
burden for reporting under EPCRA §313 from a current
$146.7 million to S196.2 million in the first year of re- ,
porting. In the second and subsequent years, the total
annual burden would be SI84.4 million and SI83.3 mil-
lion. respectively,31 In 1992, assuming foui- reports will
be submitted per facility, the total first year cost- of re-
porting pollution prevention information will be an esti-
mated 51,768 per facility. In the second and subsequent
years.-costs per facility are estimated at S1,334 and $ 1,298,
respectively." • . .
30. Id. at 48500. . . ,
31. id.' _ - .:, - . . . ,.
32. id.: . ' . • . '
,It is evident that industry is making a substantial financial
• investment to support pollution prevention. These economic
.figures relate "solely to the increased costs associated with
the completion and filing of the revised Form R, and do
not account for further financial investments industry may
commit to undertake prevention-related research and to%
institute new prevention technologies. In difficult economic%
times, however, industry may require assurances from EPA
that prevention costs expended now will not result in higher
costs tomorrow from new regulations or other mandates.
Conclusion , .
The July 1, 1992, compliance deadline will challenge busi-
nesses to provide highly complex data in a timely manner
and in an accurate format so that EPA may measure the -
progress of source reduction and related efforts to prevent
pollution in the environment. In the months and years to
come, the success of this new environmental policy may
be measured in quantitative terms concerning the actual
amount of pollution eliminated from the environment. The
more appropriate measure of success, however, will be
qualitative in nature, concerning the new relationship
formed between industry and government to achieve envi-
ronmental protection objectives, i
/3
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22 UCLA L. REV. 323. 324-30
IC POLI
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i ^NATIONAL POLICY KJR THh ENVIRONMENT 1 1 ( 1976) It w
I to the need for iniegi alcd cnvinin
2
tai difference' related lo the erncacy-of policing Nti'A. a
menial evaluation and action Id al 18-20
SPONSIBILITY AND IHE BUMM.Si PKI
s.
_!
102. Wilson, The Politics oj Regulation, in Six'i/
;DICAM£NT 145 (J. McKlC ed. 1974).
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note 10, at 23-24; Elliot, Ackcrman & Millian. Toward a
^aliiulion of Environmental Law, 2 J. L. ECON & ORGA^
104. Traditional interest group polilics sees leg
struggle among groups with dilfering interests. Sue mpr
analysis limits the application ofinlercsl group politics u
not see themselves being affected by a regulation. See sut
cst group polilics will typically benefit a small group at I
Each side has a strong incentive to organize and exercise
found where the costs and benefits of a contemplated 2
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jurisdiction covers three areas: (I) formulating and apf
sight hearings and investigations, and (3) reviewing and ap
& B. DAVIES. THE POLITICS OF POLIUTION 61-79 (2d cd. 1
n pointed out that "junsdictional politics is an ubiquil
il policy making. To hold jurisdiction means to claim a piei
s as central lo ihe life of a member or a congressional sub
• Davidson, Subcommittee Government: New Channels Jor
118-19 (T Mann & N. Ornsiem eds. 1981).
& B DAVIES, supra note 95, al 63-66; A. MARCUS, supra n
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27
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(D. Del.
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( 10th Or.
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97
Environme
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486 F.2d 42
ir. 1973).
. Colo.
pp. 1006
nvironm
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study. For the international dimensions of cross-media pollution, see
lionul Control of Cross-Media Pollution — An Ecosystems Approach, 2
A\V
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can" concept of administration and government The "republic;
that legislation should rise above "clashing interests and render 1
good." THE FEDERALIST No. 10, at 57 (J. Madison) (S Mittell cd.
Article does not subscnbe to "pluralist" theories of government
sis. See Sunslein, Interest Groups in American Public Law, 38
Public Administration and Public Deliberation An Interpretive I
See also infra text accompanying notes 357-72.
220. W, BAGEHOT, THE ENGLISH CONSTITUTION 1 33 (2d
221. J. SAX, MOUNTAINS WITHOUT H INDRAILS 50-52 (1
222. See E. KORMONDY, CONCEPTS 01' ECOLOGY (2d ed.
IN ECOLOGY (1965); P. EHRUCH & J HOLDI EN, HUMAN Ecoi
(1973); S. BRUBAKBK, To LIVE ON EARTH: MA J AND His ENVIOR
PURCELL, FROM CONSERVATION To ECOLOGY (1973); R. NASH
READINGS w THE HISTORY OF CONSERVATION (1968); L. CALDWE
TO MODERN. SOCIETY (1970); L. CALDWELL, MAN AMD His ENV
TRATION (1975); AMERICA'S CHANGING ENVIRONMENT (R. Revell
OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY: PROLOGUE
STEADY STATE (1977).
223. R. CARSON, SILENT SPRING ( 1962).
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249 115 CONG. REC. 40,418 ( 1969)
250. National Environmental Policy A<
103 directs all agencies of the federal governmei
compliance with NEPA.
251.. 115 CONG. REC. 40,4 1 8 ( 1 969)
252. Id. On a subsequent occasion whei
Control Act were being debated, Jackson conclu
1 18 CONO. REC. 33,709 (1972).
253. 115 CONG. REC. 40.423(1969).
254. III. at 40,422.
255. ' 449 F.2d 1109 (DC. Cir 1971).
Energy Commjssion (AEC) failed to consit er
NEPA when the AEC had passed new rule! T
broad scope of NEPA.
256. /
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•onmental problems should be "perceived as a
m," the then existing piecemeal federal ellbn:
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fore, "would help assure that we do not creale i
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Jespite its complexity, for pollution controi purj
ronmenl must be perceived as a single interrelat
A single source may pollute the air with smoke ;i
lhe land with solid wastes, and a river or lake v
ind other wastes. Control of the air pollution
more solid wastes which then pollute the land o
lrol of the water-polluting ellluent may conver
wastes which must be disposed of .on land. .
:fleciive approach to pollution control would: [r
[ants; [tjrace them through the entire ecological i
ng and recording changes in form as they occu
:he total exposure of man and his environment;
leractions among forms of pollution; and [ijdei
;he ecological chain interdiction wou
ippropriate.266
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RANTS 5, 24-25 (L. Brown, K. Palmer & J. Fosset eds. 1984); Whn
imenl and Natural Resource Policy, in THE NlxoN-FORD YEARS 46
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hing an interagency Council on' Environmental Quality, which h
rdinaling federal environmental policy. See Exec. Order No. 1 1
amended by. Exec. Order No. 1 1 ,5 14, 35 Fed. Reg. 4247 (1970), E;
sg. 42,839 (1977), reprinted in 42 U.S.C. § 4321. app. at 507 (I1
led that the Nixon Adminislralidn's cornmilment to administrate
pon ecological thinking. A. M-AXCUS, supra note 52. at 31-32.
!63. Environmental Protection Agency and National Oceanic a
n, TJie President's Message to the Congress Upqn Transmitting
ih the Two Agencies, July 9, 1970. 6 WEEKLY COMP. PRES Doc.
164. Id. at 911.
!65. Id. at 912.
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iertSCA|.
TOXIC SUBST/
300. 15 U.S.C. §§'2601-2654 (1982) (hercina'f
301 . COUNCIL ON ENVIRONMENTAL QUALITY,
302. IJ. at V-VL
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303. H.R. REP. No 1341, 94th Cong., 2d Se
ITERSTATE AND FOREIGN COMMERCE, LEGISLATIVE H
CT (Comm. Print 1976) (hereinafter LEGISLATIVE 1
)xic SUBSTANCES CONTROL ACT 9-26 ( 198 1 ); Gaynoi
lory Morass 30 VAND. L. REV. 1 149, 1 149-52 (1977);
iw 445 (2ded. 1985).
. 304. The Senate favored a restrictive apprpac
eregistration similar to that contained in the Fede
:t. The House desired that all new chemicals be mi
iless the EPA administrator had already placed suci
omise eventually reflected in TSCA rejects a rigid
slicidc and drug laws, and favors a system of notice
pro note 5, at 898-901.
305. TSCA, § 3(5), 1 5 U.S.C. § 2602(5) ( 198;
306. R. DRULEY & G. ORDWAY, supra n Me ;
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(heady been examined by an internal. EPA task force347
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grants and Clean Water Act section 208 area-wide. plan-.
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