The Unfocused Regulation of Toxic and Hazardous Pollutants

82 Pages Posted: 13 Mar 2008 Last revised: 23 Jul 2015

See all articles by John C. Dernbach

John C. Dernbach

Widener University - Commonwealth Law School


The debate about how to regulate has all but ignored the most fundamental question of all - what to regulate. This article analyzes similarities and differences in the lists of regulated toxic and hazardous pollutants under five statutes the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Occupational Safety and Health Act and the consequences of those choices.

The article first provides a comparative analysis of the five lists, highlighting the extent of the inconsistencies in their coverage. A total of 1134 pollutants are regulated as toxic or hazardous under at least one of the five statutes, but only 49 are regulated under all five, and nearly 768 are regulated under only one. The article then analyzes the development of all five lists to show that policy grounds fail to explain or justify the inconsistencies in coverage. To some extent, differences in chemical effects do account for discrepancies. Most differences among lists, however, stem from the fact that different experts developed the lists independently over two decades and based the lists on different criteria. Inconsistencies in the lists limit the practical effectiveness of environmental protection and occupational health laws. Regulatory gaps encourage the transfer of pollutants that are regulated in a particular medium into other, unregulated media. In addition, inconsistent listing prevents government officials, the public, and most facility managers from gaining an overall understanding of the types and amounts of pollutants being released from and within individual facilities. The article concludes with a legislative proposal to address the problem. By focusing directly on pollutants and pollutant reductions, and by requiring more complete information about pollutants, Congress could, at a greatly reduced cost, better protect human health and the environment.

Keywords: environmental law, pollution prevention, risk assessment, risk management, regulation, pollution control, toxics, toxic chemicals, hazardous, environmental regulation, toxics release inventory, EPCRA

JEL Classification: K32, I18, Q01

Suggested Citation

Dernbach, John C., The Unfocused Regulation of Toxic and Hazardous Pollutants. Harvard Environmental Law Review, Vol. 21, No. 1, 1997, Available at SSRN:

John C. Dernbach (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States

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