U.S. Environmental Regulations

State and Local Agencies

Special considerations for state and local regulation

A lot of the regulations we cover come from the federal level, and are administered by the U.S. EPA.   However, state and local governments may also be a source of environmental regulations.  While we can't review all these regulations, here's some sense of what to look out for.

A.  State Regulation Overview

In general, state environmental law tends to follow the structure of federal law. Each state has the equivalent of an EPA, with authority for overseeing environmental protection issues within the state. In addition, states tend to have state-level legislation governing such things as air pollution, water pollution, and hazardous waste management.  The state legislation is generally similar to or perhaps identical to the federal legislation.

In some cases, a state will also be the one to enforce the national regulations: if EPA agrees that their program is strong enough, it will "delegate" the federal program to them.  Examples of federal programs often delegated to states include RCRA hazardous waste management, the UST program, and the Clean Air Act and Clean Water Act programs.

In some cases, states also have the authority to pass state-level legislation that is more stringent in its requirements than federal legislation. Four common kinds of state requirements that might differ from federal requirements are as follows:

  • States may regulate a larger universe of chemical compounds or waste products. For example, the state of Washington regulates additional waste classes as hazardous waste in addition to the standard RCRA classes. Companies in Washington need to test for and manage these "state-only" wastes in addition to other RCRA wastes.
  • States may require tighter emissions levels or more stringent performance levels. For example, several states have "nondegradation" requirements for NPDES water discharges, which state that compounds not naturally occurring in certain rivers must be treated to non-detectable levels prior to discharge.
  • States may require certain permits or other actions that the federal government does not require. For example, many states require permits for well construction.
  • States may regulate certain activities the federal government does not. For example, states (and local governments) may use land use regulations to affect facility siting, construction, or other activities.

B.  State Regulation Specifics

Here are some specific state-level environmental regulatory issues to check for in your operations:

Regulation of air quality is largely established by the federal Clean Air Act (CAA).  However, states play a key role in this area by developing and enforcing State Implementation Plans (SIPs) to insure state-wide ambient air quality.  Among other things, the SIP-based new source review can often affect siting and construction activities.

Water and groundwater
States often have significant responsibilities related to the protection of groundwater.  States often are responsible for enforcing the SDWA underground injection control regulations and for managing the RCRA underground storage tank program.  States may also regulate the construction of other types wells, and require a permit for well drilling.  In addition, many states have water pollution control statutes that regulate the discharge of water directly to the ground (i.e., rather than to surface waters, which is the purview of the CWA).  In this case, structures such as a catch basin, septic system, or leaching field may be covered.  Finally, state regulation to protect drinking water sources (including both groundwater and surface water supplies) may lead to land use restrictions that affect siting, certain construction activities, or certain operational practices.

States can also regulate surface waters; for example, through regulations on the diversion of water from rivers. In addition, states have authority under the CWA to promulgate  water quality-based NPDES standards.

Solid Waste Management
As established by RCRA, non-hazardous solid waste management is primarily the purview of state and local authorities.  These authorities may impose special requirements on solid waste disposal from chemical facilities.

Many states have state right-to-know laws that are similar to EPCRA.  In some cases, these laws require additional disclosure information beyond the federal levels.

Many states have state-level Superfund laws which complement and in some cases are more stringent than federal CERCLA requirements.  For example, some state-level laws cover petroleum products, which are excluded from CERCLA. Finally, state-level Superfund requirements are important in the CERCLA program, since they may be held as "ARARs" in any federal Superfund cleanups.  (See the CERCLA Background page for an explanation of these terms.)

One special kind of Superfund-like requirement relates to the transfer of contaminated property. There are various forms of this requirement; one example is the New Jersey Environmental Cleanup Responsibility Act (ECRA). ECRA requires an owner to demonstrate prior to sale of a property that it is free from contamination. If hazardous substances are found to remain on the site, the company must cleanup the site based on a closure plan approved by the state. Failure to comply with ECRA entitles any transferee to recover damages from the previous owner.

Chemical Regulation
States have the ability to legislate other types of environmental regulation that can have a major impact on the chemical industry.  One important example is California's Proposition 65.  Prop 65 prohibits the discharge of certain listed chemicals into drinking water unless the discharger can demonstrate "no significant risk."  This prohibition puts the burden of proof on the discharger to show that the discharge does not exceed a reasonable risk level, which is quite different from most regulatory programs in which the government sets an acceptable discharge level.  Prop 65 also requires manufacturers of listed chemicals to provide clear warning labels on their products.

Pollution Prevention
Although the federal Pollution Prevention Act has largely voluntary provisions for the chemical industry, many states have passed pollution prevention legislation with more substantive requirements.  These laws vary across the states, however a common model is for states to require annual pollution prevention planning and reporting by industry.  One example is the Massachusetts Toxic Use Reduction Act.  This law requires facilities that use certain listed toxic compounds to submit annual reports on the amounts used, to pay annual fees based on usage levels, and to prepare toxics use reduction plans with specific details on in-plant changes to reduce, avoid, or eliminate use of these materials.  The act does not specifically require facilities to implement the plans, relying instead on voluntary compliance.   The act does provide direct authority to the state to limit or even ban certain compounds.

Several states have state-level NEPA legislation, sometimes referred to as SEPA for State Environmental Policy Act.  Although these state NEPAs are in principle applied to state agencies, in practice a private company may become involved in preparation of the state-level EIS for action related to obtaining a construction or other permit.

C.  Regional and Local Regulation

Regional and/or metropolitan agencies commonly enforce certain environmental regulations, particularly for air quality management, sewer management, and solid waste - since these issues span a regional area, rather than a state area.  In addition, local and/or city level agencies tend to be most active in the areas of land use regulation and public health (e.g., the County Health Department).

Related topics in
CAA - Background
CERCLA - Background
CWA - Background
EPCRA - Background
NEPA - Background
PPA - Background
RCRA - Background
SDWA - Background

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