Summary of Environmental Law in the United States

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8 Protection of the Atmosphere

 

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8.2 Stationary Sources

 

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Prior to the 1990 Amendments, the CAA contained no general, federal permitting requirement. Now, however, all new and existing major sources require a federal permit. The new permits are implemented by each state, assuming the EPA has approved the state's permit program. In addition to specific permit standards, each permit includes provisions covering inspection, monitoring, certification of compliance and reporting. 42 U.S.C. secs. 7661a-7661d.

The CAA places different obligations on stationary sources depending on whether the source is a new source, whether it emits one of the six criteria air pollutants or a hazardous air pollutant, whether the source is a "major" source (i.e., emits more than a certain amount of pollutants), and whether the area in which the source is located is in attainment or non-attainment with the NAAQS.

New Source Performance Standards

All new or modified sources must meet the applicable NSPS if the construction or modification begins after EPA proposes the NSPS for that industry category. 42 U.S.C. sec. 7411; 40 C.F.R. pt. 60. A modification is defined as a physical or operational change to an existing source that results in an increase in the emission rate to the atmosphere of any pollutant to which an NSPS applies. The performance standards reflect the "degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated." 42 U.S.C. sec. 7411. The standards for fossil fuel-fired sources also include percentage reductions.

Major Sources in Non-Attainment Areas

Non-attainment areas are airsheds in the country that do not meet the NAAQS. Major sources or modifications proposed in non-attainment areas after 1977 must obtain offsetting remission reductions and achieve the lowest achievable emission rate (LAER). 42 U.S.C. sec. 7503. Offsetting emissions must typically provide a "positive new air quality benefit" in the same area as the proposed facility and for the same pollutant. 40 C.F.R. pt. 51, app. S. In order to meet the LAER requirement, new sources must achieve the most stringent of the following standards: (1) the most stringent emission limitation identified in any State Implementation Plan for such source category, unless the permit applicant demonstrates that such limits are not achievable; (2) the most stringent emission limitation actually achieved by such source category; or (3) the level of emissions allowed for the source category under the NSPS. 42 U.S.C. sec. 7501(3); 40 C.F.R. sec. 51.165(a)(1)(xiii).

Prevention of Significant Deterioration (PSD) in Attainment Areas

To prevent significant deterioration of air quality in attainment areas (areas that meet the NAAQS) or unclassified areas (areas that cannot be classified based on available information as meeting or not meeting the NAAQS), all major emitting facilities constructed, or substantially modified, after 1977 must go through preconstruction review and receive a federal permit to construct. "Major emitting facilities" are defined as any of 28 specific categories of stationary sources that emit over 100 tons per year of pollutants or any other source that emits more than 250 tons per year. The permit will only be issued if the emissions will not contribute to a violation of the NAAQS, if the maximum allowable increase in air pollution concentration ("increment") for the area will not be exceeded, the facility has used the best available control technology (BACT), and the emissions will not have an impact on specially protected federal class I areas, described below. 42 U.S.C. sec. 7475(a). The applicable air quality "increment" depends on an area's classification, with class I areas allowing the smallest amount of incremental air quality deterioration. These PSD requirements can be enforced by either the states or EPA.

Visibility Protection for Federal Class I Areas

Mandatory Class I areas are international parks, memorial parks, wilderness areas (greater than 5,000 acres), and national parks (greater than 6,000 acres). The 1977 CAA Amendments established a special program for protecting these areas. The regulations identify and protect areas, like the Grand Canyon National Park, where visibility is particularly important. Among other requirements, states (or EPA if the state does not have an approved program) must require the Best Available Retrofit Technology (BART) on major sources that may reasonably be expected to impair visibility in one of the designated Class I areas. 42 U.S.C. sec. 7491; 40 C.F.R. secs. 51.300-.307.

Hazardous Air Pollutants

Under the new NESHAP's program, EPA is required to identify all categories of major sources of hazardous air pollutants and such categories of area sources as are determined to warrant regulation. These source categories are to be as consistent as possible with those created for setting new source performance standards. EPA must subsequently set MACT standards for each source category. Every major source (i.e., those that emit at least 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants) must comply with the standard for its source category. If EPA misses its deadline for issuance of the applicable standard, individual permits must include case-by-case limitations "equivalent" to the expected standards. The CAA includes special rules for modifications of existing sources, as well as rules allowing offsets. 42 U.S.C. sec. 7412(c). The CAA's NESHAP's program does not preempt state or local regulations from setting stricter controls on hazardous air pollutants.

Acid Rain Provisions

To reduce acid rain, the 1990 CAA Amendments created a complex system of tradable emission allowances for sulfur dioxide (SO 2). The system caps total SO 2 emissions at 8.9 million tons by the year 2000. This is accomplished in two phases. In Phase I (1995-1999), over 100 specified plants must lower their emissions to less than 2.5 pounds of SO 2 per million British Thermal Units (BTUs) of energy consumed. The second phase, begun in the year 2000, required utilities to reduce their emissions approximately 50 percent in an effort to achieve the 8.9 million ton limit. The statute prescribes a complex, detailed method for allocating the initial allowances. 42 U.S.C. secs. 7651a-7651g. New facilities beginning operations after the year 2000 will have to purchase all of their allowance from existing facilities. EPA will issue the Phase I permits, and the states will take over the permitting after Phase II begins in the year 2000.

As an additional step to reduce acid rain, the 1990 Amendments also directed EPA to issue new regulations setting emissions rates for nitrogen oxide emissions. 42 U.S.C. sec. 7651.

Solid Waste Incinerators

The 1990 CAA amendments require EPA to promulgate performance standards and other requirements applicable to both new and existing solid waste incinerators for the following pollutants: particulate matter (total and fine), opacity (as appropriate), sulfur dioxide, hydrogen chloride, nitrogen oxides, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzolurans. 42 U.S.C. sec. 7429. These specific emission limitations essentially reflect the same MACT level of control as found in the NESHAP's program. Implementation of the standards for existing units is left to the states, which must submit implementation plans for EPA approval. The standards for new units are national federal rules.

State Regulations

Most states have separate air pollution control acts imposing state air quality requirements. In addition, states are required to submit State Implementation Programs (SIP's) designed specifically to meet the federal ambient standards. States with approved SIP's share much of the implementation and enforcement authority.

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8.3 Mobile Sources

 

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The 1990 CAA Amendments statutorily set specific numerical standards for emissions of hydrocarbons, nitrogen oxides, and carbon monoxide from automobiles, trucks, and buses. The new automobile standards are effective in two phases, beginning in 1994 and 2003. 42 U.S.C. sec. 7521; 40 C.F.R. pt. 86. Other requirements on vehicle emissions include, for example: standards for carbon monoxide emissions from cold starting automobiles, 42 U.S.C. sec. 7521(j); mandates to regulate toxic pollutants from mobile sources, 42 U.S.C. sec. 7521(l); prohibitions on the manufacture or sale of engines requiring leaded gasoline, 42 U.S.C. sec. 7553; new technology-based standards for heavy duty trucks, 42 U.S.C. sec. 7521(a)(3)(B); and, standards for bus emissions in urban areas, 42 U.S.C. sec. 7554. In addition, states or regions that are not attaining the NAAQS may have to require the use of clean alternative fuels and other measures to reduce emissions from fleets of ten or more cars owned by the same owner.42 U.S.C. sec. 7586.

Manufacturers are prohibited from selling or importing any new vehicle or engine, unless the vehicle or engine is covered by a certificate showing that the type of vehicle or engine conforms with the applicable air emission standards. 42U.S.C. sec. 7522. Manufacturers can submit their vehicles or engines for testing and certification by EPA. 42 U.S.C. sec. 7525. The manufacturers also must provide a specific warranty that the vehicles conform with the law and are free of any defects that would make the vehicle violate any federal emission standard. 42 U.S.C. sec. 7541. Tampering with air pollution control devices is also prohibited, as is manufacturing products meant to bypass air pollution control devices. 42U.S.C. sec. 7522.

Airplanes, and Ships

The CAA authorizes EPA to set standards for reducing aircraft emissions, 42 U.S.C. sec. 7571, certain emissions produced during the loading and unloading of tank vessels, 42 U.S.C. sec. 7511b(f), and marine engine emissions.

State Regulations

Under the Clean Air Act, the EPA may not mandate new federal auto emission standards until model year 2004. Current federal standards for vehicle emissions preempt all state and local standards for new motor vehicles. However, California has been allowed to enact stricter standards for new motor vehicles with a waiver from EPA. Individual states are then allowed to adopt auto emission standards identical to either the federal standards or California's standards. 42 U.S.C. sec. 7507. In addition, eight states including, Connecticut, Delaware, Maryland, New Hampshire, Virginia, New Jersey, Pennsylvania, Rhode Island, and the District of Columbia and 23 car manufacturers have voluntarily agreed to follow the National Low-Emission Vehicle Program (NLEV) standards that went into effect in March 1998. NLEV is a fully enforceable rule according to which automakers agree to make low emission vehicles available in the Northeast for model year 1999 and the rest of the country in 2001. The states which are a part of NLEV will benefit from receiving the low emission vehicles that meet standards stricter than the federal standards but not as strict as California's. In return, those states have agreed not to impose the stricter California standards. The commitment will last until 2006. While, all twelve north eastern states plus the District of Columbia were asked to opt into NLEV, Massachusetts, New York, Maine, and Vermont chose to keep their option to adopt the more strict California standards.

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8.4 Liability and Enforcement

 

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EPA has broad inspection and monitoring authority to implement and enforce the CAA. For example, EPA can enter onto property and inspect the records of a facility, and require specific self-monitoring. 42 U.S.C. sec. 7414. EPA also retains certain broad emergency powers to respond to "imminent and substantial" dangers to public health, public welfare, or the environment. 42 U.S.C. sec. 7603. EPA can invoke these emergency powers even if no permit or other standard has been violated.

Federal Enforcement

Three basic civil enforcement avenues are available to EPA: issuing an administrative order requiring compliance, commencing a civil action to collect penalties or obtain an injunction, and assessing administrative penalties. 42 U.S.C. sec.7413(d) and (d)(1). Both civil and administrative penalties may be up to US$25,000 per day per violation. 42 U.S.C. sec. 7413(b). EPA can also levy an administrative penalty roughly equal to the amount of the profit gained by the failure to comply, 42 U.S.C. sec.7420, and issue field citations of up to US$5000, 42 U.S.C. sec.7413(d)(3). EPA can also seek criminal fines and imprisonment, for any person, depending on the violation, including any "responsible corporate officer," who knowingly violates the statute, and can subject the violator to up to fifteen years imprisonment for knowingly endangering any person by releasing hazardous air pollutants. 42 U.S.C. sec. 113(c) . Before EPA may initiate a civil enforcement action, it must first issue a Notice of Violation (NOV), which effectively gives the state or violating air pollution source 30 days to fix the problem before EPA will take further enforcement action. A NOV must also be issued at least 30 days before a criminal enforcement action is brought for violation of a statute.

EPA retains almost complete discretion to negotiate and settle its civil or administrative enforcement actions, so long as certain public notice and comment requirements are met. Actual fines are based on specific penalty criteria or guidelines, which typically consider factors such as the severity, frequency, and duration of the violation. Settlements also typically include a consent order creating a specific timetable for compliance and stipulated penalties for violating the consent order.

State and Local enforcement

After EPA promulgates or revises a NAAQS, each state is required to submit to EPA a State Implementation Plan (SIP) showing how the state expects to implement and maintain the federal standard. 40 C.F.R. sec.51.103. Every SIP must include a state enforcement plan, which provides the details of each state's enforcement authorities. The state has flexibility in choosing the regulatory and enforcement tools it will use to reach the NAAQS, but EPA ultimately must approve the SIP. Approved SIPs become part of both state and federal law, and can be enforced by either federal or state authorities. Once given approval, the states share the authority with EPA to enforce the applicable regulations. 42 U.S.C. sec.7410.

Citizen suits

Citizens can also bring a suit against any person or entity: to enforce the CAA's emission standards and limitations or any administrative orders; to stop the illegal construction or modification of any major source; or, to force EPA to carry out any non-discretionary duty. Most citizen suits cannot be brought without first providing 60-day notice to the defendant. Such a suit also cannot be brought if EPA or a state is already diligently prosecuting a civil action. Penalties received through citizen suits are either earmarked for compliance and enforcement activities or applied to "mitigation projects" designed to enhance the public health or the environment. 42 U.S.C. sec.7604.

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2003