Encyclopedia of Environmental Science and Engineering, Volume I and II

362 ENVIRONMENTAL LAW

protection and economic development, national security and

other factors. Federal actions covered by NEPA are not only

federal projects (roads, dams, etc.), but also federal licenses,

permits, leases, contracts, and research projects that may

have signifi cant effects on the environment. NEPA does

not mandate particular results: it does not require a federal

agency to adopt the least environmentally damaging alter-

native. Courts frequently refer to NEPA as an “environmen-

tal full disclosure law,” obliging an agency to take a “hard

look” at the environmental consequences of its action. Once

the EIS is complete (i.e., the agency makes full disclosure),

the political process, not the courts, determines whether the

agency will complete the proposed action. In most instances

NEPA does guarantee that other federal agencies having

expertise in the fi eld, State offi cials and the general public

will have an opportunity to formally comment on a proposed

federal action before it is undertaken. When federal agen-

cies have taken their responsibilities seriously, they have

integrated environmental planning into the early stages of

project planning, giving good faith consideration to alterna-

tives and mitigation measures. However, all too often the

EIS becomes a massive, unreadably technical rationaliza-

tion of a project chosen for traditional reasons—economics,

politics or bureaucratic inertia.

Energy Planning and Community Right-to-Know

Act of 1986

Title III of the 1986 amendments to the Comprehensive

Environmental Response, Compensation, and Liability Act

(42 USC 9601 et seq. ) established a regulatory program that

will require disclosure of information to workers and the

general public about the dangers of hazardous chemicals as

well as development of emergency response plans for chem-

ical emergencies.

Emergency response plans will be prepared by local emer-

gency planning committees under the supervision of state

emergency response commissions. Local commit tees are

appointed by state commissions; and each commit tee must

include representation from a wide range of community

groups, including owners and operators of facilities in the

planning area. Plans for responding to chemical emergencies

were to have been completed by 1988. Facilities that release

extremely hazardous chemicals in amounts over threshold

limits must immediately notify the community emergency

coordinator and the state commission.

Facilities that are required by the Federal Occupational

Safety and Health Act to have “material safety data sheets”

(MSDSs) for hazardous chemicals must submit a copy to the

local committee, the local fi re department, and the state com-

mission. All MSDSs must be made available to the public.

In addition, these facilities must prepare and submit detailed

“emergency and hazardous chemical inventory forms”

which describe amounts of hazardous chemicals present at

the facility and their approximate locations.

Section 313 of CERCLA requires certain facilities to

submit to EPA and the host state annual “Toxic Chemical

Release Forms” reporting on the total quantity of listed

chemicals used on-site and released to the environment—

either accidentally or intentionally—through discharges to

air, water, and land.

RIGHT-TO-SUE STATUTES

Citizen Suits

Almost every federal environmental protection statute con-

tains a provision granting citizens, no matter where they are

located, standing to bring suit in federal district court against

violators of the statute or against EPA for failure to perform

a mandatory duty. No specifi c injury need be alleged by a

plaintiff in a statutory citizen suit, but plaintiff must allege

that no government agency is effectively enforcing against

the defendant. In a citizen suit, a judge may fi ne the defen-

dant and award reasonable counsel and expert witness fees

to a citizen plaintiff.

Judicial Review

Under the Federal Administrative Procedure Act (5 USC 701

et seq. ), any “aggrieved person” may sue to obtain judicial

review of a fi nal decision made by a federal administrative

agency. Potential damage to a person’s interest in a clean and

natural environment will confer standing on a plaintiff under

this statute. Agency decisions are accorded a strong pre-

sumption of correctness by our legal system. Thus, in order

to overturn an agency decision, a plaintiff must prove that it

confl icts with the agency’s statutory authority, is “arbitrary

and capricious”, or violates constitutional safeguards.

PRODUCT LICENSING STATUTES

Toxic Substances Control Act (TSCA)

Under TSCA (15 USC 2601 eq seq. ), EPA is empowered

to require the testing of new and existing chemicals that are

potentially toxic, and to prohibit or place conditions on the

manufacture, distribution, and usage of a chemical if it poses

an unreasonable risk to human health or the environment.

The heart of TSCA is its requirement of a “premanufac-

ture notice” (PMN) to EPA by any person who proposes to

import, manufacture, or process a new chemical or to intro-

duce a signifi cant new use of an existing chemical. Once a

PMN is received, EPA must act within one hundred eighty

days to regulate or prohibit the manufacture of the chemi-

cal. If EPA does not act within one hundred eighty days,

the manufacturing process may begin. However, if on the

basis of the PMN EPA fi nds that production, use, or dis-

posal of the chemical “may present an unreasonable risk”

to human health or the environment, EPA may promulgate

“test rules” requiring further testing of health effects, envi-

ronmental effects, and chemical fate. If these tests confi rm

the existence of an unreasonable risk, EPA may act to limit

or prohibit production, use, or disposal. “Reasonableness”

in TSCA consists of a “risk-benefi t” analysis in which the

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