Professors Errol Meidinger and Roberta Vallone
School of Law / State University of New York / Buffalo, New York 14260
Spring Semester, 2008 / ©2008
The Clean Air Act
I. Historical Overview
A. Air pollution regulation was long primarily a state function.
1. Nuisance law
2. Various smoke control statutes beginning in the late 1800s
B. Federal role started with federal information and conference mechanisms
1. APCA of 1955: HEW provided research support for state programs
2. CAA of 1963: HEW authorized to set non-binding air quality criteria
3. AQA of 1967: States (in consultation w/ HEW) to:
a. Designate AQ control regions
b. Set AQ standards
c. Develop Implementation Plans
d. Develop reports on pollution control techniques
C. CAA Amendments of 1970 -- to correct flaws of prior acts
1. Mandatory, uniform air quality standards (NAAQS)
2. Mandatory BACT for new stationary sources (NSPS)
3. Mandatory vehicle emissions standards
4. Attainment of NAAQS by 1975 through SIPS
5. Implementation by the States
6. Federal oversight and enforcement powers
D. CAA Amendments of 1977
1. PSD programs required for Attainment Areas
2. RACT for existing stationary sources in NA areas
3. LAER permit programs for new sources in Non-Attainment Areas
E. CAA of 1990
1. Market system for acid rain control
2. MACT for specified toxic pollutants
3. Mandatory Operating Permit Programs
4. Expanded Monitoring and Enforcement programs
II. 1970/1977 System
A. National Air Quality Standards à Emissions Limits for Sources
III. NAAQS
A. Uniform Nation-Wide maximum levels of allowable pollutants for pervasive pollutants
1. Primary (health based)
2. Secondary (environment and welfare based)
3. Covered: CO, SO2, NOx, ozone, particulates (now PM2.5) and Pb
4. Short Term (higher levels allowed for brief intervals) and Long Term (much lower average concentrations over longer periods of time -- usually yearly average)
5. To be revised every 5 years or as appropriate
6. Much controversy over proper levels b/c:
a. epidemiological evidence weak
b. subject to strongly differing interpretations
7. Accept presence of a certain amount of pollution
8. VISIBILITY STANDARDS promulgated for certain pristine areas in the west; slow progress
B. Attainment Areas (PSD) and Non-Attainment Areas (mandatory reductions) for each criteria pollutant
1. PSD areas: limits on increments to pollution levels (made statutory in 1977)
2. NA areas: any new source must both use LAER and get offsets
C. State Implementation Plans (SIPs)
o Each state has responsibility for ensuring attainment, either by:
1. preventing further deterioration, or
2. reducing existing levels of pollution until they meet NAAQS
3. SIPS must be developed and adopted by state and local governments after reasonable notice and public hearing, and then approved by EPA
4. EPA may reject if “substantially inadequate”
a. to attain or maintain NAAQS
b. to mitigate adequately interstate pollution
c. to comply with any other requirement of the Act
D. Continuing failure by state to promulgate adequate plan can result in promulgation by EPA of federal implementation plan (FIP)
1. States to make “reasonable further progress”
2. Once approved
a. Binding under both state and federal law
b. Enforceable by either government
E. Early SIPs
1. based on proportional, across-the-board roll back assumptions
2. very primitive data and models
F. Now
1. Data on actual emissions still bad
2. Models are getting somewhat better
3. Still know relatively little about how well various control technologies work
SIP processes have always been highly contentious: bad data, bad models, high stakes (between sectors, between regions, between agencies, between parties), yet relatively technical and hidden from public view
G. Stationary Source Regulation
1. New (and modified) versus Old
a. NSPS (new source performance standards)
i. Set by EPA for common categories of new or reconstructed sources
ii. Now over 60, but have developed rather slowly
b. EPA performs “new source review” of all new sources and major modifications
c. Complicated set of rules allowing Netting out of NSR
2. Non-Attainment Areas
a. New and Modified Sources
i. Mandatory Construction Permits
ii. LAER (lowest achievable emissions rate)
iii. Net decrease in emissions
b. Existing Sources: RACT (reasonably available control technology)
3. PSD Areas
a. New Sources
i. Construction permits
ii. BACT (best available control technology)
b. Existing (no mandatory federal requirements)
4. BUBBLES/ NETTING/OFFSETS
a. let the polluter come up with the most efficient mix of technologies
b. developed largely by EPA, in response to the steel industry
H. Mobile Source Regulation: cars, trucks, jets
1. 1970 act mandated net emissions reductions of 90% (ultimately requiring a 96% reduction per car from uncontrolled levels b/c some uncontrolled cars remain)
2. National Level Standards -- but California allowed to have stricter ones
I. Toxic Air Pollutants
1. NESHAPS: protect public health with an ample margin of safety
2. may be no safe exposure levels for most carcinogens
3. EPA promulgated only seven in 10 years (arsenic, asbestos, benzene, beryllium, mercury, radionucleides, vinyl chloride)
J. Enforcement
1. EPA originally left largely to states
2. CIVIL
a. Early civil penalty authority required thirty days notice, then a suit in federal district court or administrative order
b. Injunction or civil penalties of up to $25,000 per day
c. very few penalties actually collected; very heavy reliance on administrative orders
3. CRIMINAL
a. knowing violation a misdemeanor punishable by fine of up to $25,000 per day of violation or up to one year in jail
b. very little criminal enforcement until late 80s
4. (Civil) CITIZEN SUITS
a. available, but difficult to bring because of proof problems
b. no civil penalties (only injunctions), but still paid costs
III. 1990 Amendments
A. NAAQS left in place (though EPA has recently amended several of them)
1. Relatively low level of attainment
a. Approx.100 remaining OZ NA areas
b. Some areas have problems so severe that they could not meet the NAAQS even if all industry ceased to operate
c. Many areas with serious CO, PM10 and SO2 problems
2. NA areas put into various categories for each pollutant; differing deadlines based on the severity of the problem
3. Many new control measures to be implemented in NA areas
4. RACT tightened and applied to cover smaller sources
a. Size of sources to which RACT is applicable depends on the severity of the NA designation (down to 10 TPY for severe NOX areas)
5. EPA to issue guidelines for many more categories of industrial facilities (CTGs -- control technique guidelines)
a. Several dozen CTGs issued so far
b. EPA treating as compulsory rather than advisory
6. AQCRs to be redefined to reflect pollution problems; LAER etc. will apply regardless of whether the source is shown to contribute to the NA problem
B. Toxics
1. Perceived failure of pre-1990 program
2. Action forcing list of 189 chemicals
a. Congress wrote the list b/c EPA had refused to do it
b. EPA can add or delete substances if scientific data support
c. Pressure to do something had also increased because of the reporting requirements of SARA §313 (EPCRA-TRI)
d. Outside petitions to do so also authorized
3. Shift from a risk-based to a technology based approach
a. old law seemed to call for control standards creating zero risk; EPA claimed couldn't do it
4. MACT (maximum achievable control technology)
a. To be: no less stringent than the level of control actually achieved in practice by the “best performing” 12 percent of existing sources for source categories with 30 sources or more
b. includes: process changes, substitution of materials, re-use, recycling; collection, capture or treatment of pollutants; changes in design, equipment, work practice, or operations, operator training
5. Residual Risk
a. EPA reports to Congress with recommendation for future legislation
b. Absent new legislation, EPA promulgates regulations for sources where risks to most exposed individuals of known or possible carcinogens haven’t been reduced to < 1 x 10 <-6>
6. Modifications
a. Required to meet MACT requirements for existing sources, if
i. Results in > than de minimus increase in actual emissions, and
ii. Not offset by equal or greater decrease in emissions of a more hazardous pollutant
iii. But, sources that voluntarily reduce emissions below 1987 levels given six years at that level in lieu of MACT std.
7. Permit Hammer
a. If EPA fails to promulgate standards for a source category by the statutory deadline, states must
i. establish requirements “equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner” and
ii. incorporate into operating permits within 18 months of missed deadline
8. Accidental Release Program
a. need to be reported
b. new board established to look into them
C. Major New Operating Permit Program
1. Direct Analogy to CWA NPDES program
§ Perceived need for clear requirements applicable to each source
2. Revenue: PERMIT FEES of not less than $25/ton annually
3. Permits required for
a. All major sources
i. Usually 100 TPY; 10 TPY in extreme NA areas
ii. Could get down to 10-25tpy cutoffs
iii. Operators must determine whether they are covered, then file timely applications
b. All sources subject to
c. Any source subject to TOXICs regulation
4. Permits must include
a. All applicable emissions limits (SIP, NESHAP, NSPS, PSD, etc.)
b. Schedule for compliance
c. Any other applicable conditions or requirements, e.g.:
i. Monitoring
ii. Record-Keeping
iii. Reporting
d. New state legislation often required
Criteria Pollutants / Hazardous PollutantsStringency / Standard / Definition / Standard / Definition
High / LAER (lowest achievable emissions rate
- Offets
- SIP in place
- Compliance with SIP
- (NA New Sources) / Lowest in any state SIP or achieved in practice / MACT (can be different for new and existing sources) / Maximum Reductions Achievable; New: best any source has done; Existing: top 12% (or top 5 sources in small categories)
Medium / BACT (new sources in PSD areas) / Best standards in common usage
Low / RACT (required for existing sources in NA areas) / Reasonably Available (Retrofit) Control Technologies / GACT (for area – non- major – sources) / Commercially available and appropriate
5. PERMIT SHIELD
a. States may shield permitted sources in compliance with their permits from CAA enforcement if
i. The permit includes all CAA requirements applicable to the facility, or
ii. The state determines that other requirements of the Act are not applicable to the source
b. Complying source should not be subject to enforcement actions based either on covered requirements or considered factors
6. APPLICATION SHIELD (40 CFR § 70.7)
a. “No source may operate unless it submits a timely and complete permit application”
b. Failure to have a permit is not a violation while a timely and complete application is pending.”
7. Trading
a. If permit applicant requests, state programs must
i. require permitting authority to set an emissions cap, and
ii. define permit terms and conditions for emissions trading which would comply with the cap
b. State programs may allow permitted sources to trade increases and decreases in emissions in the permitted facility, provided the SIP provides for such trades
i. 7 day notice required
ii. No permit revision required
iii. Permit shield not applicable to changes made under this option
8. OVERALL -- permits PARTIALLY DISPLACE SIPS as the primary mechanism for detailing requirements applicable to specific sources
D. SIPs
1. Requirements more stringent with more deadlines and additional control requirements
2. Revised SIPS required for all NA areas
3. Generally require 15% reductions over first six years and 3% each year thereafter
4. Progress requirements are to drive imposition of controls on individual sources
E. Acid Rain requirements
1. Apply largely to existing coal power plants (source of over 80% of SO2; 35% of NOx)
2. Emissions Allowances (in tons of SO2) based on 1985-87 electricity production
a. Phase I: 111 named plants; down to 2.5 lbs/mmBtu by 1995
b. Phase II: almost all plants (2200)need to be down to 1.2 lbs/mmBtu by 2000 (8.95 M ton cap)
3. Source may (58 Fed. Reg. 3672)
a. Limit emissions to number of allowances allocated by EPA
b. Purchase additional allowances from others
c. Bank allowances for future use
d. Emit below allowance level and sell excess allowances
4. Continuous Emissions Monitoring required
5. SUM -- SO2 emissions to be cut in half; NOx to be reduced by a set amount (2 million tons)
6. CAP on power plant SO2 emissions of 8.9 MMtons nationally in
F. Mobile Sources
1. Tighter Emissions Standards
a. Promulgated by EPA
b. States may opt into California program, but nothing else
2. Fuel Standards
a. EPA has authority to regulate fuel types and additives
b. States may opt into California program
c. NA areas may require reformulated gasoline
3. State Testing and Certification: NA areas can be required to institute stricter vehicle testing and maintenance programs
4. Mobile sources still the largest single source of ozone precursors and CO; 50% of VOCs, 90% of CO
5. Mot formally part of the requirements of this section, but will generate a lot of pressure for transportation planning
G. Regional Pollution Control
1. Envision creation of air transport regions to develop interstate pollution reduction programs