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Hazardous Air Pollutants under the Clean Air Act

Hazardous Air Pollutants under the Clean Air Act. Prof. Tracy Hester University of Houston Law Center Houston, Texas Sept. 30, 2019. Hazardous Air Pollutants. What is a hazardous air pollutant? HAPs recent special treatment under Clean Air Act

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Hazardous Air Pollutants under the Clean Air Act

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  1. Hazardous Air Pollutants under the Clean Air Act Prof. Tracy Hester University of Houston Law Center Houston, Texas Sept. 30, 2019

  2. Hazardous Air Pollutants • What is a hazardous air pollutant? • HAPs recent special treatment under Clean Air Act • Sad history of NESHAPs (National Emission Standards for Hazardous Air Pollutants) • Section 112 required an “ample margin of safety to protect the public health” • So, 1 in a million? 100 in a million? Does cost matter?

  3. The New Title III • Congress significantly revised the HAP program in 1990 • Now 189 HAPs specifically listed in the statute • MACT approach • 12 percent baseline set by industrial category • Hammers for failure to implement • Role for subcategories?

  4. The New Title III • Major source – • 10 tpy of any HAP • 25 tpy combined HAP • “Once in, always in” (with caveat) • Area sources • Source categories (166 major, 8 area) • Special rules for power plants – Michigan v. EPA (U.S. 2015)

  5. “Once In, Always In” – Now Out • EPA changed reclassification policy through interpretive memorandum on Jan. 25, 2018 • Immediate court challenge, now pending before D.C. Circuit • EPA has now proposed a rule to formally change its former interpretation; proposed on June 26, 2019.

  6. The New Title III • Residual risk review (section 112(f)(2)) • How low does EPA have to go? • NRDC v. EPA (D.C. Cir. 2008) • State law standards can be more stringent • Texas – Air Pollutant Watch Lists Effects Screening Levels

  7. TCEQ Air Pollutant Watch Lists

  8. Professor Tracy Hester University of Houston Law Center tdheste2@central.uh.edu 713-743-1152 (office)

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