Overview of laws, continued.
Everything in the regulations must conform to the statutes. The congress could nullify or change any part of a regulation, but congress avoids opening Pandora's box, so such changes are rare. The courts could also step in, since much of the wording in the enabling statutes is vague or subjective. The definition of "adverse health consequences" could vary from a sneeze to cancer. But courts do not want to open Pandora's box either, so they tend to accept the technical interpretation of the agencies unless the error is gross or the attorneys involved are especially smart. However, the agencies of the executive branch are not free to select their procedures for making regulations. The agencies are bound by a law called the Administrative Procedures Act (APA). That is a federal statute that sets guidelines for certain minimum steps agencies must take in order to promulgate regulations. (States have a similar statute-regulation system and administrative procedures laws.) The gist of administrative procedures acts are that the agencies must publish drafts of proposed regulations, accept public comment on them, then publish the final regulation. If there are substantial changes between the first draft and the final, another round of published drafts, now called "revised drafts" (or similar) is required, more public comments, and so on. It takes up to 10 years for OSHA (more on them later, that's the federal agency in charge of worker health and safety) to promulgate a new regulation.
For federal matters, "published" mean published in the Federal Register. Here is the Table of Contents of ONE day's publications in the FR. The FR is published every business day of the year. Here is one of the notices in that publication. Page These notices range from a few lines to 50 or 100 pages. Also, in technospeak, "regulations" are often called "rules."
Now a gray area. Let's say, 10 ug/L of arsenic in the drinking water is now part of the regulations following the lengthy review process. What laboratory method do you use to test if a sample meets that 10 ug/L standard? There are many laboratory methods. Could the government use any of them if it was prosecuting an offender? Perhaps one laboratory method would yield 8 ug/L and a similar method using a different technique might yield 12 ug/L. Such differences in lab results are common. To be more exact, the agencies often publish Guidance Documents. These vary from highly technical treatises on certain topics to cookbook-like procedures manuals. Question. If these guidance documents are used to amplify or interpret the regulations, aren't they regulations themselves? And don't they come under the APA and have to be advertised, commented upon, etc. While the lawyers can argue that one for as long as their clients have money, I note that guidance documents are usually a professional practice standard, and that is what people use. Also an agency is hard put to reject something that was done according to its own guidance document.
The last topic before we start to scan the laws is the relationship between state laws and federal laws. Since "hazardous waste" or "pollution control" are not mentioned in the constitution, the federal role was limited through the early 1900s to matters that directly affected interstate commerce, for example filling a navigable river with debris. Next came poisons that were shipped across state lines. The 1960's brought vast changes in the US. The federal government effected social change by expanding the definition of interstate commerce to include many activities that were at best only indirectly associated with interstate commerce. The Supreme Court backed up the federal government and thus by 1970, the federal government began a heavy involvement in regulating pollution and its sources. Some states had anti-pollution laws before the federal government, and these laws stood in their jurisdictions, so activities in these states was subject to both laws. But through the 1970s and 1980s, many of the federal government regulations provided that if a state would adopt laws and regulations no less stringent than the analogous federal regulations, the state could regulate that matter in its jurisdiction. Further, money was provided to the states to enforce those regulations. Hence most states now have regulations analogous to the federal. Sometimes these are identical, but often very similar. Since the authority and money to administer the federal programs is specific to the program, the states had different programs and the entire cost of the program is not paid by the federal government, there can be considerable difference in who administers which program in the different states.
Next, scan this document which has a historical list of U.S. Environmental Laws. Note the laws in boldface type; we will be discussing these some more; the acronyms for the laws are on the next page.