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TEXT 2. ENVIRONMENTAL LAW AND BUSINESS IN THE USA: AN OVERVIEW
Environmental laws and regulations deal with myriad pollution problems, including the contamination of our air, surface waters, drinking water, ground waters, and land. Pollution or contamination of the environment is found inside as well as outside the walls of factories and other business facilities. Those affected include workers and their families as well as other members of their communities. In addition, as U.S. businesses increase their participation in a global marketplace, it is becoming increasingly clear that environmental contamination extends beyond local and regional concerns; its effects are international and even global.
Every business in this country is affected by environmental laws, and many businesses deal with one or more environmental laws and the administrative agencies that enforce them on a daily basis. For example, businesses must inform and educate their employees about hazardous materials in the workplace as required by the Occupational Safety and Health Administration (OSHA), and they must inform their communities about such materials on their premises pursuant to the Comprehensive Environmental Response, Clean Up, and Liability Act (CERCLA - the Superfund Program). Manufacturing facilities must apply for and adhere to permits from the federal Environmental Protection Agency (EPA) regarding emissions into air and water. Businesses generating hazardous wastes must comply with the EPA's manifest system (a record-keeping system), and the disposal of both hazardous and non-hazardous waste is regulated extensively. Businesses are increasingly being required to clean up or pay for cleanup of environmental contamination caused by their past acts and practices. Further, businesses are now being required to monitor their production methods and seek ways to prevent pollution.
Environmental regulations are constantly changing and, as J. Stephen Shi and Jane M. Kane noted in Business Horizons, "businesses, especially small-to mid-sized businesses, understandably have a hard time staying abreast of all rules and regulations. [But] whether or not a firm knowingly violated a regulation or was not aware of the violation is irrelevant. Businesses, in the eyes of the law, have a duty to find out what regulations apply to their industry and comply with them." Therefore, for any business person, it is helpful to be familiar with the problems addressed by our environmental laws, the provisions of those laws, and the kinds of mechanisms and administrative agencies through which those laws are enforced.
Evolving Approaches to Environmental Protection
A great deal of the environmental legislation affecting small businesses today originated in the 1970s. In fact, 1970 has been called the "year of the environment." On April 22, 1970, the first celebration of "Earth Day" took place. Also that year, the National Environmental Policy Act was passed by the U.S. Congress, the EPA was created, and OSHA was established. Various U.S. environmental laws predate 1970, but those laws have been developed extensively since that year, and the enforcement of those laws has changed the way business "does business."
Individuals and groups of concerned citizens have long relied upon the legal system to compensate individuals who suffered harm due to exposure to toxic substances, to provide a mechanism for cleanup of environmental contamination, to protect citizens from exposure to hazardous substances, and to prevent further contamination of the environment.
In recent times, the United States has moved away from the "reactive" approach of tort law - which is used to compensate victims after harm has occurred - to a more proactive statutory approach - through which future contamination is prevented and existing contaminated sites are cleaned up. Administrative (or regulatory) agencies have been set up by Congress to deal with environmental problems. Through a statute (or statutes) called "enabling legislation," each agency is charged with planning, creation of regulations (or standards), and enforcement of those standards relating to a specific set of environmental problems.
Administrative Agencies
The federal Environmental Protection Agency (EPA) and its state counterparts are the primary enforcers of environmental laws in the United States. Each of the fifty states has an administrative agency which serves as a counterpart to the federal EPA. The state agency is often the primary environmental law enforcing agency with which businesses deal on a daily basis. However, it must be recognized that environmental law is not exclusively the domain of the EPA. Various other administrative agencies, both state and federal, enforce laws that are related to the environment. Further, the EPA often coordinates its enforcement efforts with those of other administrative agencies whose missions complement or even overlap with those of the EPA. Some of the federal administrative agencies which are engaged in such environmentally related missions include:
· Occupational Safety and Health Administration: regulates to protect the health and safety of workers within workplaces (excluding mining).
· Mine Safety and Health Administration: regulates to protect the health and safety of workers in mines and to protect the public from hazards associated with mining.
· Bureau of Land Management: manages federally owned lands, which total over 350 million acres, as well as the resources on those lands, including timber; oil, gas and minerals; rivers and lakes; plants, animals, and fish and their habitats.
· U.S. Fish and Wildlife Service: manages the National Wildlife Refuge System.
· National Park Service: charged with managing the various parks that comprise the nation's national park system.
· U.S. Forest Service: manages public forest resources for lumbering, mining, farming, grazing, and recreation.
· Council on Environmental Quality (CEQ): oversees compliance with the National Environmental Policy Act (NEPA) by agencies throughout federal government.
· Consumer Product Safety Commission: charged with enforcement of various enabling acts designed to protect consumers, including responsibility for protecting consumers from toxic (hazardous) chemicals.
· Food and Drug Administration: charged with enforcement of statutes designed to protect the public from harmful food or drugs. Also works with the EPA to protect the public from hazards associated with pesticide residues in food.
· Nuclear Regulatory Commission: regulates nuclear facilities and handling and disposal of nuclear materials.
· Federal Energy Regulatory Commission: regulates dams and hydroelectric power.
· Federal Maritime Commission: certifies that ships carrying oil and hazardous materials have the ability to cover the cost of any spills.
· Army Corps of Engineers: regulates construction projects on navigable waters; coordinates administration of Superfund cleanups; engages in construction projects to protect wildlife on shorelines and in navigable waters; and other projects.
· National Institute for Occupational Safety and Health (NIOSH): under jurisdiction of the Centres for Disease Control (CDC), conducts research on the effects of toxic substances on humans, the results of which are used by OSHA, EPA, and other agencies.