HHS General Administration Manual Part 30 Environmental Protection

(as of February 25, 2000)

SUBJECT: Environmental Protection

30-00-00 -- Purpose
30-00-10 -- Chapter Organization and Content
30-00-20 -- Environmental Statutes and Executive Orders
30-00-30 -- Definitions

30-00-00 -- Purpose

This Part summarizes and provides guidance on many current statutory, regulatory and Executive Order environmental authorities. It does not create or confer any rights on any person and it is not intended to be used as the sole source of information for any of the referenced environmental compliance requirements. The Department recognizes that any of the authorities described herein may be revised after the issuance of this Part. The current specific environmental statute, regulation or Executive Order should be reviewed when questions or conflicts arise. To the extent that any statement in this Part should contradict or conflict with a current applicable statutory, regulatory or Executive Order requirement, that statutory, regulatory or Executive Order requirement shall supersede any inconsistent provision of this GAM Part. Additional questions should be referred to the OPDIV environmental officer, the Departmental environmental program manager, and/or the Office of the General Counsel.

Part 30 of the General Administration Manual establishes Departmental policy and procedures with respect to protection of the environment and the preservation of natural resources. Under Federal statutes, regulations, and Executive Orders, all Federal Departments and agencies are required to comply with all applicable Federal, State and local environmental statutes, laws and regulations and must take into account the environmental consequences of their activities. In many cases, the activities of non-Federal organizations which operate under the authority or with the support of Federal Departments or agencies are also included.

Consistent with the 1994 Presidential Memorandum on Government-to-Government Relations with Native American Tribal Governments, and Executive Order 13084 on Consultation and Coordination with Indian Tribal Governments, consultation and cooperation with Tribal Governments must be done where appropriate. Additionally, in certain programs, "Eligible Tribes" can be treated in the same manner as States. Some of these programs include certain Clean Air Act programs, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Water Act, Toxic Substances Control Act, and certain roles and responsibilities under the Comprehensive Environmental Response, Compensation and Liability Act.

This Part supersedes HHS Part 30, Environmental Protection, 1980, with the exception that Part 30, Chapter 30-40, Cultural Asset Review (Historical Preservation) remains in effect until a separate revised Chapter dealing with this subject is published.

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30-00-10 -- Chapter Organization and Content

The chapters of Part 30 are organized as follows:

• Chapter 30-00 provides a list and summary descriptions of certain environmental laws and Executive Orders, and a list of definitions.

• Chapters 30-10 and 30-20 provide overall Departmental policy with respect to environmental protection and a summary of internal administrative procedures which Departmental organizations must implement.

• Chapter 30-30 provides a general summary of the environmental review process for Departmental activities under the National Environmental Policy Act, and statutes and Executive Orders that require protection and preservation of natural and cultural assets.

• Chapters 30-40 through 30-90 provide detailed requirements for certain environmental statutes and Executive Orders covered by Part 30.

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30-00-20 -- Environmental Statutes and Executive Orders

Federal agencies are potentially subject to more than 150 Federal statutes and Executive Orders governing the environment. Many of these laws are noted in Table 1.

Environmental laws and implementing regulations that significantly impact the Department are summarized in the following subsections. Detailed guidance is contained in other chapters of Part 30 for certain environmental statutes and Executive Orders. Table 1, as follows, indicates the location of statutes or Executive Orders that are discussed in Part 30.

1. Clean Air Act (CAA). The Clean Air Act of 1970, 42 U.S.C. 7401-7671q, as amended, establishes five major programs that cover (1) the attainment and maintenance of air quality standards; (2) reduction of hazardous air pollutants; (3) development of emission standards for motor vehicles and fuels; (4) protection of the stratospheric ozone; and (5) reduction of acid rain deposition.

   1. National Ambient Air Quality Standards Program (NAAQS). All new and existing sources of air pollution are subject to ambient air quality regulation. The Clean Air Act directs the Environmental Protection Agency (EPA) Administrator to identify pollutants which Amay reasonably be anticipated to endanger public health and welfare and to issue air quality criteria for them. EPA is also required to publish primary and secondary national ambient air quality standards (NAAQS) for the identified pollutants. Primary NAAQS are designed to protect public health with an adequate margin of safety, and secondary NAAQS are designed to protect the public welfare. In 40 CFR Part 50, EPA has promulgated NAAQS for six pollutants: sulfur dioxide (SO2), particulate matter, nitrogen dioxide (NO2), carbon monoxide, ozone, and lead.

      Each State and eligible tribe is given primary responsibility for assuring that air quality within its borders is maintained at a level consistent with the NAAQS. The NAAQS's are implemented through source-specific emission limitations established by States in State Implementation Plans (SIPs). SIPs must meet minimum criteria set forth in the Clean Air Act and are reviewed by EPA. A SIP may be enforced by the State or EPA. EPA must promulgate a Federal Implementation Plan (FIP) if a State fails to make a required submission or if a SIP submission is disapproved and the State does not remedy the deficiency within a specified period.

      1. Nonattainment Areas. SIPs must adopt, at a minimum, reasonably available control technology (RACT) for existing sources and provide for annual incremental reductions in emissions of nonattainment pollutants. The CAA also contains additional requirements for SIPs in areas that do not attain the NAAQS, including specific requirements for certain pollutants.

      2. New Source Performance Standards (NSPS). New sources of pollution are subject to more stringent control technology and permitting requirements than existing sources. EPA is authorized to establish new source performance standards, which impose Federal technology-based requirements on emissions from new or modified major stationary sources of pollution. The Clean Air Act directs EPA to establish standards for new sources that reflect the degree of emission limitation achievable through the application of the best system of emission reduction which the EPA Administrator determines has been adequately demonstrated to be the best. These standards may be promulgated as design, equipment, work practice, or operational standards where numerical emission limitations are not feasible. EPA has developed NSPS standards for a number of industry categories which are published at 40 C.F.R. Part 60. Each NSPS identifies the types of facilities to which the standards apply.

      3. Prevention of Significant Deterioration Program (PSD). A permit must be obtained under the PSD program before a "major" new source may be constructed or "major modification" made to an existing major source in an area that attains the NAAQS or is designated unclassifiable. The CAA requires each SIP to Acontain emission limitations and such other measures as may be necessary...to prevent significant deterioration of air quality in each region of the state in which the air quality exceeds national standards. EPA's PSD regulations are codified at 40 C.F.R. Part 51.

      4. Nonattainment Program. Regions that have failed to meet the NAAQS for one or more criteria pollutants are designated as "nonattainment" areas. New or modified major stationary sources proposed for nonattainment areas are required to comply with stringent permitting requirements, including a showing that the decrease in emissions from existing sources in the area is sufficient to offset the increase in emissions from the new or modified source and achievement of the "lowest achievable emission rate (LAER)".

   2. National Emission Standards for Hazardous Air Pollutants (NESHAP). The 1970 Clean Air Act authorized EPA to establish health-based national emission standards for hazardous air pollutants (NESHAP) to protect the public from these pollutants. EPA has established standards for seven hazardous substances. EPA's NESHAP regulations are published at 40 C.F.R. Part 61. The 1990 CAA amendments direct EPA to establish technology-based standards for 189 hazardous substances based on the use of "maximum achievable control technology" (MACT).

   3. Emission Standards for Mobile Sources and Fuel-Related Programs. EPA is authorized to establish allowable levels of auto emissions and to control fuels and fuel additives. The 1990 CAA amendments establish lower emission standards for automobiles and other vehicles and provide for the use of "clean" alternative fuels and "clean fuel" vehicles.

   4. Stratospheric Ozone Protection. Title VI of the Act, added in 1990, addresses scientific concerns related to stratospheric ozone depletion and global warming by providing for the phase-out of ozone-depleting substances. Title VI calls for the phase-out of most ozone-depleting substances by the year 2000 and the imposition of other controls designed to minimize the emissions of such substances prior to their elimination.

   5. Acidic Deposition. The 1990 CAA amendments added Title IV of the Act which authorizes EPA to establish an acid rain program to reduce the adverse effects of acidic deposition. The program imposes sulphur dioxide (SO2) and nitrogen oxide (NOx) controls on existing and new electric utility plants.

   6. Permits. The 1990 CAA amendments added Title V which establishes an operating permit program for existing stationary sources. The permit program is modeled on the Clean Water Act permit program (NPDES program--see 30-00-20B). Each State must develop and implement a Clean Air Act operating permit program. EPA is required to issue permit program regulations that are to be followed by the States in establishing their programs; approve each State's permit program; and establish a Federal permit program if a State fails to implement an approved program. EPA is also authorized to review each permit issued by a State. EPA regulations addressing the minimum requirements for State operating permit programs are contained in 40 CFR Part 70.

   7. Civil and Criminal Penalties. EPA is authorized to seek compliance with the Act's provisions through administrative, civil, and criminal enforcement sanctions. The maximum penalties that may be imposed for violation of the CAA are contained in Table 2.

2. Violation	Administrative Penalty	Civil Penalty	Criminal Penalty
   Violation of CAA requirement	$25,000 per day (maximum $200,000 may be waived by EPA and DOJ jointly). Alternative: recovery of projected economic value of noncompliance	$25,000 per violation	Up to $250,000 per day and/or up to 5 yrs. imprisonment Corporations subject to $500,000 per violation. Penalty doubled after first offense.
   A Field citation for minor violations	$5,000 per day
   False statement or failure to file or maintain records or reports			Up to $250,000 and/or up to 2 yrs. imprisonment; $500,000 for corporation. Penalty doubled after first offense.
   Knowing failure to pay fee.			Up to $250,000 and/or up to 1 yr. imprisonment; $1 million per day for corporations. Penalty doubled after first offense.
   Knowing release of HAP or "extremely hazardous substance" placing another in "imminent danger of death or serious bodily injury"			Up to $25,000 per day and/or up to 15 yrs. imprisonment; $1 million per day for corporations. Penalty doubled after first offense.
   Negligent release of air toxic placing another in "imminent danger of death or serious bodily injury"			Up to $100,000 and/or up to 1 yr. imprisonment; corporations subject to $200,000. Penalty doubled after first offense.

2. Clean Water Act (CWA). The Clean Water Act, 33 U.S.C. 1251-1387, was originally enacted as the Federal Water Pollution Control Act of 1972. The Act was substantially amended in 1977 and became the Clean Water Act. The objective of the CWA is to Arestore and maintain the chemical, physical and biological integrity of the Nation's waters. The Act establishes as a national policy Athat the discharge of toxic pollutants in toxic amounts be prohibited. Among the goals established by the Act are achievement of a level of water quality which "provides for the protection and propagation of fish, shellfish and wildlife...[and]... for recreation in and on the water" and elimination of the discharge of pollutants into navigable waters.

   The CWA prohibits "the discharge of any pollutant by any person..." from a point source to waters of the United States, except in accordance with the Act's permit requirements, effluent limitations, and other provisions.

   1. Water Quality Standards. A water quality standard defines the water quality goals of a water body by designating the uses to be made of the water, by setting criteria necessary to protect the uses, and by setting anti-degradation policy. States and eligible tribes are responsible for establishing water quality standards. The standards are designed to protect public health or welfare, enhance the quality of water, and serve the other purposes of the Clean Water Act. States and eligible tribes are required to review their water quality standards at least once every three years. EPA reviews and approves or disapproves State/Tribe-adopted water quality standards in accordance with regulations codified at 40 CFR Part 131.

      1. Water Uses. Each State and eligible tribe must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.

      2. Water Quality Criteria. States and eligible tribes must adopt those water quality criteria that protect the designated use. Criteria are elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.

      3. Toxic Pollutants. The Water Quality Act of 1987 amended the CWA to require States and eligible tribes to identify those waters that are adversely affected by toxic, conventional, and nonconventional pollutants; to identify where additional controls are needed; and to prepare individual control strategies. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use, or where the levels of toxic pollutants are at a level to warrant concern, and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use.

   2. Effluent Limitations. The CWA directs EPA to issue effluent limitation guidelines, pretreatment standards, and new source performance standards for industrial dischargers. The EPA implementing regulations are based principally on the degree of effluent reduction attainable through the application of control technologies.

      1. Direct Dischargers. The effluent guidelines promulgated by EPA reflect the several levels of regulatory stringency specified in the Act, and they also focus on different types of pollutants.

         1. Best Practicable Control Technology (BPT). The CWA directs the achievement of effluent limitations requiring application of Best Practicable Control Technology (BPT). In general, effluent limitations that are based on Best Practicable Control Technology (BPT) represent the average of the best treatment technology performance for an industrial category.

         2. Conventional Pollutants -- Best Conventional Pollutant Control Practical Technology (BCT). For conventional pollutants listed in the Act, the CWA directs the achievement of effluent limitations based on the performance of best conventional pollutant control technology (BCT).

         3. Toxic Pollutants -- Best Available Technology (BAT). For the toxic pollutants listed in the CWA and for nonconventional pollutants, the Act directs the achievement of effluent limitations requiring application of Best Available Technology Economically Achievable (BAT). Effluent limitations based on BAT are to represent at a minimum the best control technology performance in the industrial category that is technologically and economically achievable.

         4. New Source Performance Standards (NSPS). In addition to limitations for existing direct dischargers, EPA has established New Source Performance Standards (NSPS) for new direct dischargers. NSPS limitations must be as stringent, or more stringent, than BAT limitations for existing sources within the industry category or subcategory.

         5. National Pollutant Discharge Elimination (NPDES) Permit. The limitations and standards for direct dischargers are implemented in permits issued through the National Pollutant Discharge Elimination System (NPDES). Where there are no effluent guidelines or standards, technology- based limitations reflecting BPT/BCT/BAT are developed on a case-by-case basis using the permit writer's best professional judgement. Any NPDES permit issued must contain limitations sufficiently stringent to assure compliance with water quality standards.

      2. Indirect Dischargers

         1. Conventional Pollutants. In general, EPA does not develop regulations to control conventional pollutants discharged by indirect dischargers because the publicly-owned treatment works (POTWs) receiving those wastes normally provide adequate treatment of these types of pollutants or they can be adequately controlled through local pretreatment limits.

         2. Pretreatment Standards. Indirect dischargers are regulated by the general pretreatment regulations (40 CFR Part 403), local discharge limits developed pursuant to Part 403, and categorical pretreatment standards for new and existing sources covering specific industrial categories. These categorical standards apply to the discharge of pollutants from non-domestic sources which interfere with or pass through POTWs, and are enforced by POTWs or by State or Federal authorities. The categorical pretreatment standards for existing sources covering specific industries are generally analogous to the BAT limitations imposed on direct dischargers. The standards for new sources are generally analogous to NSPS.

   3. National Pollutant Discharge Elimination System (NPDES) Permit

      1. Requirement. The CWA states that a permit is required for the discharge of pollutants from a point source into waters of the United States. Under the NPDES, permits are required whenever a pollutant is: (1) discharged (2) by a person (3) from a point source (4) into navigable waters of the United States.

      2. Waters of the United States. The Clean Water Act applies to "navigable water", which are in turn defined as "waters of the United States, including the territorial seas." (33 U.S.C. ' 1362(7)). Navigable waters are broadly defined and are not limited to "navigability in fact". Waters of the United States include interstate waters and wetlands; all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce; all impoundments of waters; tributaries; the territorial seas; and wetlands adjacent to other waters of the United States. (33 CFR ' 328.3(a)). Section 401(a)(1) of the CAA requires that prior to the issuance of any Federal license or permit for an activity which may result in a discharge to navigable waters, the applicant must obtain certification (from the State in which the discharge will occur) that the licensee will assure compliance with applicable portions of the CAA.

      3. Storm Water Discharges. Section 402(p) of the CWA clarifies that storm water discharges associated with industrial activity, including construction activity, to waters of the United States must be authorized by a NPDES permit. This section also regulates storm water discharges from municipal separate storm sewer systems serving a population greater than 100,000, and those storm water discharges designated for permitting a "significant contributor of pollution." The CWA requires EPA to issue regulations establishing general permit standards for industrial storm water dischargers. Facility operators have to file notices of intent to be covered by the general permit and are required to develop pollution prevention plans to keep contaminants out of storm water. The general permits also establish special requirements for facilities that are subject to the Emergency Planning and Community Right-To-Know Act (EPCRA) Section 313 reporting (see Chapters 30-60 and 30-80). The regulations are codified at 40 C.F.R. ' 122.26.

      4. Recordkeeping and Monitoring. The NPDES permits require holders to keep updated records and to install and maintain monitoring equipment, to take samples of effluents, and to report their findings to the EPA. The results must be in the form of a discharge monitoring report, which is a uniform method devised by the EPA for the self-monitoring of permitted facilities.

   4. Spills of Oil and Hazardous Substances. Under section 311, spills of listed hazardous substances in "Reportable Quantities" established by regulation must be reported to the National Response Center and promptly cleaned up. See 40 C.F.R. Parts 116-117 for designations of hazardous substances and reportable quantities. Spill Prevention Control and Countermeasure (SPCC) Plans must be adopted so as to prevent discharge of oil from onshore and offshore facilities into the navigable waters or adjoining shores. Requirements are set forth at 40 C.F.R. Part 112.

   5. Sole Source Aquifer Designation This designation is intended under 42 U.S.C. 300h-3 to protect underground drinking water sources. Proposed Federal financially-assisted projects that have the potential to contaminate the designated sole source aquifer are subject to EPA review.

   6. Civil and Criminal Penalties. Administrative, civil, or criminal penalties may be imposed by EPA or a federal court for violation of the Act.

3. Coastal Zone Management Act (CZMA). The Coastal Zone Management Act, 16 U.S.C. '' 1451 to 1464, requires that Federal activities in coastal areas be consistent with approved State Coastal Zone Management Programs, to the maximum extent possible. Procedures for consistency determinations under the CZMA requirements are codified at 15 CFR Part 930 and are described in Chapter 30-40.

4. Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA). The Comprehensive Environmental, Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. '' 9601 to 9675, is popularly known as the "Superfund" Act. The statute provides for a fund to address the problems of "cleaning up" abandoned or leaking hazardous waste sites. The 1980 statute was substantially revised in 1986 by the Superfund Amendments and Reauthorization Act of 1986 (SARA). It is implemented for federal agencies by Executive Order 12580.

5. CERCLA authorizes the Environmental Protection Agency (EPA) to:

   • Utilize the Hazardous Substance Superfund ("Superfund") to study and clean up sites that are listed on the National Priorities List (NPL);

   • To recover costs expended from parties responsible; and,

   • To order such parties to perform work.

   1. Hazardous Substance Superfund. The Hazardous Substance Superfund is established through the imposition of taxes on certain industries and from general tax revenues. The Superfund is used to pay EPA's clean-up and enforcement costs, natural resource damage, and claims of private parties. Federal agencies are not eligible for funds from the Superfund.

   2. National Contingency Plan (NCP). The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) provides the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants. The NCP is required by CERCLA Section 105 and Section 311(c)(2) of the CWA. In Executive Order 12580, 52 FR 2923 (1987), the President delegated to EPA the responsibility for the amendment of the NCP.

      National Priorities List (NPL). CERCLA requires that the NCP include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The National Priorities List (NPL) constitutes this list. The identification of a site for the NPL is intended primarily to guide the Environmental Protection Agency (EPA) in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. Pursuant to Section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA has promulgated a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. That list, which is Appendix B of 40 CFR Part 300, is the National Priorities List ("NPL").

      The NPL includes two sections, one of sites that are evaluated and cleaned up by EPA (the "General Superfund Section"), and one of sites being addressed by other Federal agencies (the "Federal Facilities Section").

      Federal Facilities. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA Section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System (HRS) score and determining whether the facility is placed on the NPL. The HRS is a screening tool used by the EPA to evaluate risks associated with abandoned or uncontrolled or hazardous waste sites. EPA is not the lead agency at these sites, and its role at such sites is accordingly less extensive than at other sites. The Federal Facilities Section includes those facilities at which EPA is not the lead agency.

   3. Response and Remediation. Sections 106 and 107 provide the primary authority for EPA, States, and private parties to recover the costs of cleanup or to abate an endangerment to public health, welfare, or the environment. Section 106 authorizes EPA to seek judicial relief requiring a responsible party to abate an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility. Section 107 imposes liability for cleanup and other response costs [costs incurred in responding to a release or a threatened release of a hazardous substance] upon (1) a "responsible party" for the (2) release or "threatened release" of (3) a hazardous substance from (4) a facility or vessel.

      1. Potentially Responsible Party. Section 107(a) of CERCLA, 42 U.S.C. ' 9607(a), sets forth four categories of parties that are potentially subject to liability:

         1. current owner or operator: owner or operator of a facility from which there is a release of a hazardous substance, or is the operator or owner when cleanup is performed or litigation initiated;

         2. former owner or operator: a person who operated or owned a facility when the hazardous substance was disposed of at the facility;

         3. arranger: any person who "arranged for disposal or treatment" at a facility; and

         4. transporter: a person who accepted hazardous substances for transport to a disposal or treatment facility or site that was selected by the transporter "from which there is a release or threatened release." (107(a)(4).

            Note: A current owner or operator may be liable even if it did not handle, dispose of, or treat hazardous wastes at the facility, and without regard to whether hazardous substances were disposed of at the facility during the period of ownership or operation.

      2. Release or "Substantial Threat of Release." The term "release" is defined broadly in the Act. A "release" includes "any spilling, leaking, pumping, pouring emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment..." The release of any quantity of a hazardous substance qualifies as a release under CERCLA. Certain types of releases are excluded from the definition: engine exhaust, nuclear material and fertilizer application. 42 U.S.C. ' 9601(22).

      3. Hazardous Substance. "Hazardous substances" are defined in CERCLA Section 101(14). A list of these substances can be found at 40 C.F.R. Part 302. The definition of "hazardous substances" incorporates lists of hazardous pollutants that have been developed under other Federal environmental statutes and wastes that exhibit characteristics of a hazardous waste under the Resource Conservation and Recovery Act ("RCRA&). Table 3, following, outlines hazardous pollutants considered to be hazardous substances under CERCLA.

         Type of Pollutant	Statutory Definition
         Hazardous Air Pollutants	CAA, Section 112
         Hazardous Substances	CWA, Section 311
         Toxic Pollutants	CWA, Section 307
         Substances which "may present substantial danger to public health or welfare or the environment"	CERCLA, Section 102
         Listed Hazardous Wastes; Characteristic hazardous wastes	RCRA, Section 3001
         Imminently Hazardous Chemical Substances or Mixtures	TSCA, Section 7

         1. Petroleum Exclusion. Petroleum, "including crude oil or any fraction thereof," is excluded from the definition of "hazardous substance."

         2. Pollutants or Contaminants. EPA may clean up a site polluted by either a "hazardous substance" or a "pollutant or contaminant," but CERCLA does not authorize EPA to recover its cleanup costs from private parties or to issue an order directing the parties to perform a cleanup when the substance involved is only a "pollutant or contaminant."

      4. Response Costs. CERCLA permits the recovery of "response costs", which includes the costs of removal, remedial action, and enforcement activities related thereto. In addition to liability for costs and damages related to response actions stemming from a release of a hazardous substance, liability may also be imposed for costs associated with the loss of a contaminated area's natural resources.

      5. Application of Liability. The statute does not set forth liability standards. The courts have consistently applied the following standards:

         1. Strict liability;

         2. Joint and Several Liability; and

         3. Retroactive Liability.

      6. Defense to Liability. The statute permits liability to be defended when the release was caused by:

         1. an act of God;

         2. an act of war; or

         3. the act or omission of a third party other than an employee or agent or one in a contractual relationship with the party being sought to be held liable.

   4. Penalties. A party that refuses or fails to comply with a Section 106 order from EPA may be assessed up to $25,000 per day of the violation of the order. Additional penalties may also be imposed.

   5. Executive Order 12580. Executive Order 12580, Superfund Implementation, 52 FR 2923 (1987), as amended by Executive Order 12777, 56 FR 54757 (1991), 42 U.S.C. '' 9615 note, implements CERCLA by delegating functions under the Act vested in the President to Federal agencies.

5. Emergency Planning and Community Right-To-Know Act (EPCRA)

   1. EPCRA. The Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U.S.C. '' 11001-11050, establishes a mechanism for providing the public with important information on the hazardous and toxic chemicals in their communities, and it creates emergency planning and notification requirements to protect the public in the event of a release of extremely hazardous substances. The Act requires owners and operators of certain facilities to annually submit toxic chemical release inventories to EPA, affected States, and Indian tribes. EPCRA requirements are set forth in chapter 30-60. Because it was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), the statute is sometimes referred to as "SARA, Title III".

   2. Executive Order 12856. Executive Order 12856, Federal Compliance With Right-to-Know Laws and Pollution Prevention Requirements, 58 FR 41981 (1993), applies the requirements of EPCRA to Federal agencies. The requirements of the Order are described in chapter 30-80.

6. Endangered Species Act (ESA). The Endangered Species Act, 16 U.S.C. 1531-1543, directs Federal agencies to conserve endangered and threatened species and their critical habitats. Federal agencies must insure, in consultation with the Secretary of the Interior or the Secretary of Commerce, that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of critical habitat unless the agency has been granted an exemption under ESA. Environmental review requirements under ESA are covered in chapter 30-40.

7. Energy Conservation

   1. Energy Policy Act. The Energy Policy Act of 1992, 42 U.S.C. 13201 to 13556, requires the Secretary of Energy to work with other Federal agencies to significantly reduce the use of energy and reduce the related environmental impacts by promoting use of energy efficient and renewable energy technologies.

   2. Energy Policy and Conservation Act. The Energy Policy and Conservation Act, 42 U.S.C. 6201-6422, authorizes the Secretary of Energy to promote energy efficiency and encourage energy conservation.

   3. Executive Order 12902. Executive Order 12902, Energy Efficiency and Water Conservation at Federal Facilities, 59 FR 11463 (1994), requires each federal agency to develop and implement a program with the intent of reducing energy consumption by 30 percent by the year 2005. Each agency must develop and implement a program for its industrial facilities with the intent of increasing energy efficiency by at least 20 percent by the year 2005 and shall implement all cost-effective water conservation projects.

      The Order directs each agency responsible for managing Federal facilities to develop and begin implementing a 10-year plan to conduct or obtain comprehensive facility audits, based on prioritization surveys on each of the facilities the agency manages. All agencies are to develop and implement programs to reduce the use of petroleum in their buildings and facilities by switching to a less-polluting and nonpetroleum-based energy source, such as natural gas or solar and other renewable energy sources. The head of each agency shall report annually to the Secretary of Energy and OMB in achieving the goals of this order. Each agency head shall designate a senior official, at the Assistant Secretary level or above, to be responsible for achieving the requirements of Executive Order 12902. The agency senior official must coordinate implementation of the Order with the Federal Environmental Executive and Agency Environmental Executives established under Executive Order No. 12873 (see chapter 30-90).

8. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 to 136y, requires the registration of a pesticide before it may be sold and authorizes the EPA Administrator to limit the distribution, sale or use of unregistered pesticides. EPA is prohibited from registering a pesticide that will cause "unreasonable adverse effects on the environment." Regulations implementing FIFRA govern the use, storage, and disposal of registered pesticides. Additionally, these regulations govern the requirements for training and certification of applicators, container labeling, and worker protection.

9. Fish and Wildlife Coordination Act. The Fish and Wildlife Coordination Act, 16 U.S.C. '' 661-666c, requires Federal agencies to protect fish and wildlife resources which may be affected by an agency plan to control or modify a natural stream or body of water for any purpose. The agency also must provide for the development and improvement of wildlife resources that will be affected by its action. Before taking action, the agency must consult with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the State agency exercising administration over the wildlife resources that will be affected to determine means and measures that should be adopted to prevent the loss of or damage to such wildlife resources, as well as to provide concurrently for the development and improvement of such resources. Consultation requirements under the Fish and Wildlife Coordination Act are described in chapter 30-40.

10. Historic Preservation

    1. Antiquities Act of 1906. The Antiquities Act of 1906, 16 U.S.C. 431-433, authorizes the President to declare historic landmarks, historic and pre-historic structures, and other objects of historic and scientific interest that are located on Federal lands to be national monuments.

    2. Archaeological and Historic Preservation Act of 1974. The Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 to 469c-1, directs Federal agencies to preserve significant scientific, prehistorical, historical and archaeological data.

    3. Historic Sties Act of 1935. The Historic Sites Act of 1935, 16 U.S.C. 461 to 467, states that it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the public. The Act is also popularly called "The Historic Sites, Buildings, and Antiquities Act."

    4. National Historic Preservation Act. The National Historic Preservation Act, 16 U.S.C. '' 470 to 470x-6, directs heads of Federal agencies to assume responsibility for the preservation of historic properties which are owned or controlled by such agencies.

    5. Executive Order 11593. Executive Order 11593, Protection and Enhancement of the Cultural Environment, 36 FR 8921 (1971), 16 U.S.C. 470 note, requires Federal agencies to initiate measures and procedures to provide for the maintenance, through preservation, rehabilitation, or restoration of Federally-owned sites that are listed on the National Register of Historic Places.

11. Marine Protection, Research and Sanctuaries Act. The Marine Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 to 1445a, 33 U.S.C. 1401 to 1445, provides for establishment of marine sanctuaries and directs Federal agencies to ensure that their actions are consistent with the intended use of such areas.

12. National Environmental Policy Act (NEPA)

    1. NEPA. The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370d, establishes a comprehensive policy for protection and enhancement of the environment by the Federal government; creates the Council on Environmental Quality; and directs Federal agencies to carry out the policies and procedures of the act. NEPA is covered in chapter 30-50.

    2. Executive Order 12114. Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, 44 FR 1957 (1979), enables responsible officials of Federal agencies having ultimate responsibility for authorizing and approving certain Federal activities significantly affecting the environment of the global commons, or a foreign nation, or certain major Federal actions outside the United States which significantly affect natural or ecological resources of global importance, to be informed of pertinent environmental considerations and to take such considerations into account in making decisions regarding such actions. Executive Order 12114 is implemented for HHS in chapter 30-50.

    3. Executive Order 11990. Executive Order 11990, Protection of Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52 FR 34617 (1987) 42 U.S.C. ' 4321 note, directs Federal agencies to avoid, to the extent possible, the long and short term adverse impacts associated with the destruction or modification of wetlands and direct or indirect support of new construction in wetlands wherever there is a practical alternative. Executive Order 11990 is covered in chapter 30-40.

    4. Executive Order 11988. Executive Order 11988, Floodplain Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979), 42 U.S.C. ' 4321 note, directs Federal agencies to take action to avoid, to the extent possible, the long and short term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development whenever there is a practical alternative. Executive Order 11988 is implemented for HHS in chapter 30-40.

    5. Executive Order 11514. Executive Order 11514, Protection and Enhancement of Environmental Quality, 35 FR 4247 (1970), as amended by Executive Order 11991, 42 FR 26967 (1977), 42 U.S.C. ' 4321 note, requires Federal agencies to initiate measures needed to direct their policies, plans, and programs to meet national environmental goals. Federal agencies must develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. In carrying out their responsibilities under NEPA and Executive Order 11514, Federal agencies are to comply with regulations issued by the Council on Environmental Quality, except where compliance would be inconsistent with statutory requirements.

13. Occupational Safety and Health Act (OSHA). The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 to 658, regulates the use, storage, and handling of hazardous materials in the workplace and provides for the Department of Labor to establish standards governing workplace safety and health requirements.

14. Pollution Prevention and Recycling

    1. Pollution Prevention Act (PPA). The Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109, requires the reporting of efforts to reduce toxic chemical releases through source reduction and recycling. The PPA establishes national policy that pollution is to be prevented or reduced at the source, and the Act requires the Environmental Protection Agency (EPA) to submit biennial reports to Congress that analyze the source reduction and recycling data submitted to it and provide other pollution prevention information that has been gathered from private businesses and Federal agencies. The Act also requires the Administrator of EPA to develop a strategy to promote source reduction; to make matching grants to States to promote the use of source reduction techniques by businesses; and to establish a Source Reduction Clearinghouse. The requirements of the PPA are described in more detail in chapter 30-70.

    2. Executive Order 13101. Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, Sep 1998, requires Federal agencies to strive to increase the procurement of products that are environmentally preferable or that are made with recovered materials and to set annual goals to maximize the number of recycled products purchased, relative to non-recycled alternatives. Each agency is to establish goals for solid waste prevention and for recycling to be achieved by the years 2000, 2005 and 2010 and to annually report progress in attaining the goals. Executive Order 13101 is implemented for HHS in chapter 30-90.

15. Resource Conservation and Recovery Act (RCRA). The Resource Conservation and Recovery Act of 1976, 42 U.S.C. '' 6901 to 6991i, governs the generation, storage, and disposal of hazardous waste, and amends the Solid Waste Disposal Act.

16. Safe Drinking Water Act (SDWA). The Safe Drinking Water Act, 42 U.S.C. 300f to 33j-26, is intended to protect drinking water sources. The statute authorizes EPA to determine if an action which will have an environmental effect on a sole or principal drinking water source would also constitute a significant hazard to a human population and, if so, to prohibit such an action. The SDWA protects the quality of drinking water by establishing regulations 1) governing the quality of water delivered by public water systems and 2) preventing the endangerment of drinking water sources from underground injection. The SDWA also allows EPA to take any action necessary to protect the health of persons where contamination of a drinking water source poses an imminent and substantial endangerment to health.

17. Toxic Substances Control Act (TSCA). The Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. '' 2601 to 2692, provides controls over the manufacture process, use, distribution and disposal of certain toxic materials. e.g., polychlorinated biphenyls, lead-based paint, asbestos containing materials and radon.

18. Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act, 16 U.S.C. 1271 to 1287, directs Federal agencies to consider and preserve the values of wild and scenic areas in the use and development of water and land resources.

19. Executive Orders

    1. Executive Order 12898. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (1994), requires each Federal agency to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Federal agencies which conduct activities that substantially affect human health or the environment should have implemented an agency-wide environmental justice strategy which identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

       The environmental justice strategy includes a listing of programs, policies, planning and public participation processes, enforcement, and/or rulemakings related to human health or the environment and should, at a minimum: (a) promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations; (b) ensure greater public participation; (c) improve research and data collection relating to the health of and environment of minority populations and low-income populations; and (d) identify differential patterns of consumption of natural resources among minority populations and low-income populations. In addition, the environmental justice strategy includes, where appropriate, a timetable for undertaking identified revisions and consideration of economic and social implications of the revisions. To assist in identifying the need for ensuring protection of populations with differential consumption patterns, agencies whenever practicable and appropriate, must collect, maintain, and analyze information on the consumption patterns of populations who rely principally on fish and/or wildlife for subsistence.

    2. Executive Order 12088. Executive Order 12088, Federal Compliance with Pollution Control Standards, 43 FR 47707 (1978), as amended by Executive Order 12580, 52 FR 2923 (1987), 42 U.S.C. ' 4321 note, makes the head of each Federal agency responsible for ensuring that all necessary actions are taken for the prevention, control, and abatement of environmental pollution with respect to Federal facilities and activities under the control of the agency.

    3. Executive Order 11987. Executive Order 11987, Exotic Organisms, 42 FR 26949, 42 U.S.C. 4321 note, directs Federal agencies, to the extent permitted by law, to restrict the introduction of exotic species into the natural ecosystems on lands and waters which they own, lease, or administer.

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30-00-30 -- DEFINITIONS

The following terms are defined solely for the purpose of implementing the supplemental procedures provided by this chapter and are not necessarily applicable to any statutory or regulatory requirements. To the extent that a definition of one of these terms should conflict with a definition in an applicable statute, regulation or Executive Order, that statute, regulation or Executive Order definition shall supersede the GAM definition.

1. Action -- a signed decision by a responsible Department official resulting in:

   1. Approval, award, modification, cancellation, termination, use or commitment of Federal funds or property by means of a grant, contract, purchase, loan, guarantee, deed, lease, license or by any other means;

   2. Approval, amendment or revocation of any official policy, procedures or regulations including the establishment or elimination of a Department program; or

   3. Submission to Congress of proposed legislation which, if enacted, the Department would administer.

2. Asset -- an entity, group of entities or specific environment as defined in the individual related acts and which the individual related acts seek to protect or preserve. Assets include cultural assets (e.g., historic properties) and natural assets (e.g., wild and scenic rivers, and endangered species).

3. Environmental Acts -- all authorities listed in Section 30-00-20 or authorities that might be designated under other statutes or Executive Orders.

4. Environmental Assessment -- a concise public document, as defined in the regulations implementing NEPA, that serves to provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

5. Environmental Effects, as defined under NEPA, include direct effects, which are caused by the action and occur at the same time and place, indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable, and cumulative effects, which are caused by the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.

6. Environmental Impact Statement -- a detailed written statement, as required under NEPA, on: i) the environmental impact of the proposed action, ii) any adverse environmental effects which cannot be avoided if the action is implemented, iii) alternatives to the proposed action, iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity and v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

7. Environmental Review -- the process, including necessary documentation, which a Departmental organization uses to determine whether a proposed action will cause an environmental effect.

8. Finding of No Significant Impact -- a document by a federal agency, as required under NEPA, briefly presenting the reasons why an action will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.

9. Major Federal Action - includes actions, as defined by NEPA, with effects that may be major and which are potentially subject to federal control and responsibility.

10. HHS Operating Division (OPDIV) The following is a current listing (which may change at some future date) of OPDIVs: Administration on Aging (AoA), Administration for Children and Families (ACF) Agency for Health Care Research and Quality (AHCRQ), Centers for Disease Control and Prevention (CDC), Agency for Toxic Substances and Disease Registry (ATSDR), Food and Drug Administration (FDA), Health Care Financing Administration (HCFA), Health Resources and Services Administration (HRSA), Indian Health Service (IHS), National Institutes of Health (NIH), Office of the Secretary (OS), Program Support Center (PSC), and Substance Abuse and Mental Health Services Administration (SAMHSA).

11. HHS Staff Division (STAFFDIV) The following is a current listing (which may change at some future date) of STAFFDIVs: Office of the Assistant Secretary for Legislation (ASL), Office of the Assistant Secretary for Management and Budget (ASMB), Office of the Assistant Secretary for Planning and Evaluation (ASPE), Office of the Assistant Secretary for Public Affairs (ASPA), Departmental Appeals Board (DAB), Office for Civil Rights (OCR), Office of General Counsel (OGC), Office of Inspector General (OIG), and Office of Public Health and Sciences (OPHS).

12. Program Review -- a review by OPDIVs/STAFFDIVs of all their actions to determine:

    1. Those categories of actions which normally do not individually or cumulatively cause significant environmental effects and therefore may be categorically excluded from further environmental review; and

    2. Those categories of actions which require an environmental review because they may cause significant environmental effects under NEPA; and

    3. Those categories of actions which require an environmental review because they normally do cause significant environmental effects under NEPA.

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Last Revised: October 17, 2003