The Clean Air Act

1. The Clean Air Act

2. Early History of Air Pollution

3. Air Pollution Episodes • 1930, Muese River Valley, Belgium - 63 deaths • 1950, Poza Rica, Mexico - 22 deaths, 320 hospitalized • 1952, London - 4,000 deaths • 1984, Bhopal, India - 4,000 immediate deaths, 15,000 deaths later

4. Air Pollution Episode: London Fog (1952)

5. Clean Air Act: Major Provisions • National Ambient Air Quality Standards • State Implementation Plans • Prevention of Significant Deterioration • New Source Performance Standards • National Emission Standards for Hazardous Air Pollutants • Acid Deposition • Permits • Stratospheric Ozone • Mobile Sources • Enforcement

6. Clean Air Act: Overview • Federal law. • Applicable to entire country. • Responsibilities divided between Federal government and state/local agencies and tribes.

7. National Ambient Air Quality Standards (NAAQS) • NAAQS established at levels that protect human health and the environment with an adequate margin of safety. • NAAQS established and periodically reviewed and revised for: • Sulfur Dioxide • Particulate Matter (PM10 and PM2.5) • Nitrogen Dioxide • Carbon Monoxide • Lead • If NAAQS not met, EPA designates area as “nonattainment.”

8. State Implementation Plans (SIPs) • States establish procedures to attain and maintain NAAQS. • States develop SIPs describing how state will bring the nonattainment areas into attainment. • Mandatory sanctions if state fails to submit SIP, fails to submit an adequate SIP, or fails to implement SIP. • Loss of highway funds. • Stringent permitting requirements for new sources (2:1 offset). • Withhold air grants. • Impose Federal Implementation Plan (FIP).

9. New Source Review and Prevention of Significant Deterioration • Preconstruction permit program to ensure new or modified sources are: • Well-controlled, and • Minimize increases of emissions in clean areas or offset new contributions through reductions in other sources.

10. Prevention of Significant Deterioration (PSD) • Attainment areas should be protected from significant new air pollution. • Requires Best Available Control Technology (BACT), which is generally more stringent than that required by New Source Performance Standards. • Requires analysis of impact on maintenance of the NAAQs.

11. New Source Review (NSR) • Nonattainment areas subject to additional requirements. • Requires Lowest Achievable Emission Rate (LAER). • Requires emission offsets.

12. New Source Performance Standards (NSPS) • Technology-based standards (NSPS) for ~ 85 categories of new industrial facilities (e.g., power plants, steel mills, refineries, boilers, dry cleaners). • Establish consistent baseline for pollution control, thereby, eliminating incentives for localities to weaken standards to attract industry. • Preserve clean air to protect human health and the environment and accommodate future growth. • Emission levels based on best “adequately demonstrated” continuous control technology available, taking costs into consideration. • Required to review/revise every 5 years. • Standards do not specify how facility must meet NSPS. • Standards apply to modifications of existing facilities through New Source Review (NSR).

13. National Emission Standards for Hazardous Air Pollutants (NESHAP) • In 1990, shifted from risk-based to technology-based standards for 188 hazardous air pollutants listed in CAA. • Pollutants can be added/deleted from list. • MACT (Maximum Achievable Control Technology Standards) • Standards for sources of the listed pollutants that achieve “the maximum degree of reduction in emissions” taking into account cost and other non-air quality factors. • Required to review/revise every 8 years. • MACT standards “shall not be less stringent than the most stringent emission level that is achieved in practice by the best controlled similar source.” • Existing sources may be less stringent than new, but no less stringent than the emission limitations achieved by either the best performing 12% of existing sources (if 30 or more sources), or the best performing 5 similar sources (if fewer than 30 sources).

14. NESHAP con’t. Residual Risk Standards • EPA establishes health-based standards to address situations in which a significant residual risk of adverse health effects remains after installation of MACT. • Required for any source emitting a cancer-causing pollutant that poses an added risk to the most exposed person of more than one-in-a-million. • Required 8 years after promulgation of MACT for affected source category. Area Source Standards • EPA establishes standards for stationary “area sources” determined to present a threat of adverse effects to human health or the environment. • Required to regulate area sources responsible for 90% of the emissions of the 30 hazardous air pollutants that present the greatest risk to public health in the largest number of urban areas. • Can impose GACT (generally available control technology).

15. Acid Rain • National cap-and-trade program for SO2 emissions from electric utilities. • NOx emission requirements from electric utilities. • Continuous emission monitors for SO2 and NOx. • Excess emission penalties if exceed allowances and a reduction in allowances in subsequent years.

16. Title V Permit Program • Comprehensive permitting program. • Major Source: Emit or have the potential to emit 100 tons/year of any regulated pollutant, or sources that emit or have the potential to emit lesser specified amounts of hazardous air pollutants. • Thresholds smaller in nonattainment areas depending on severity. • States develop programs subject to approval of EPA. • States collect fees to cover “reasonable costs” to support the program. • Sources apply for permit from state. • Permit addresses all regulatory requirements. • Permit reviewable by EPA, but issued by state for five years. • Source submits specified reports and certifies compliance annually.

17. Stratospheric Ozone • Phase-out schedules of ozone depleting chemicals (ODC) tied to the Montreal Protocol. • Several strategies to avoid the release of ODC to the atmosphere. • EPA promulgated regulations to reduce use of substances such as refrigerants, maximize recycling, and ensure safe disposal.

18. Mobile Sources • Requires manufacturers of motor vehicles and engines (both on-road and non-road) to certify the vehicles/engines they build to meet CO, hydrocarbon, NOx and PM standards while new and in-use. • Regulates additives and formulations of gasoline and diesel fuels that are dependent upon regional air quality and time of year. • Attainment areas (conventional gasoline)/ nonattainment areas (reformulated gasoline). • Summertime gasoline requires additional oxygenates.

19. Regulated Mobile Sources Light Duty Heavy Duty Vehicles (1970s) Engines (1980s) Nonroad Compression Ignition (1996) Nonroad Small Spark Marine Spark Ignition Ignition (1997) (1998) Locomotive (2000) Marine Compression Large Spark Recreational Ignition (2004) Ignition (2004) Vehicles (2006)

20. A Simple Fuel Distribution Chain Terminal Pipeline (Carrier) Refinery/Importer Retailer or Fleet Fueling Facility Tanker Truck (Carrier)

21. Enforcement Authorities

22. Section 113 Enforcement Authorities • Section 113 (a) general enforcement provisions. • Requires a Notice of Violation for certain kinds of violations. • Authority to issue compliance order, penalty order, bring civil judicial action, or request the Attorney General to bring criminal action.

23. Section 113 Enforcement Authorities • Section 113(b) civil judicial lawsuit. • Fines up to $37,500 per day for each violation. • Civil injunctive authority to require compliance. • Section 113(c) criminal actions. • Up to 5 years in jail, up to $1 million in fines, or both (can be doubled for recalcitrance).

24. Section 113 Enforcement Authority • 113(d) civil administrative penalty powers. • Can seek penalties up to $290,000. • Can seek higher penalties with permission of HQ and DOJ. • Injunctive relief limited one year.

25. Section 113 Penalty Assessment Criteria • 113 (e): Consider (in addition to other factors as justice may require): • Size of business • Economic impact of the penalty on the business • Compliance history • Good faith efforts to comply • Duration of the violation (any credible evidence) • Previous payment of penalties for the same violation • Economic benefit • Seriousness of the violation

26. Section 114 Information Gathering • Allows EPA to demand that sources provide information: • conduct emission tests, • monitor, • make reports, • keep records. • Allows EPA to seek relevant information from anyone, even those who may not be sources of pollution, if they have information EPA needs. • Power to enter and inspect.

27. Section 167 Stop Work Orders • Order a source to stop construction on a facility which does not comply with the CAA. • This is an authority we do not often use, but it is a powerful tool.

28. Section 303 Emergency Powers • Seek an order from a District Court to stop whatever activity a source may be doing that creates an “imminent and substantial endangerment to public health, welfare or the environment.” • The conduct does not have to constitute a violation of the CAA.

29. Section 307 Subpoenas • Allows EPA to require attendance and to compel testimony under oath, as well as requiring the production of documents at the administrative deposition. This is called subpoena duces tecum, a subpoena “and bring it with you.”

30. Section 304 Citizen Suits • Allows citizens to bring civil suit against any person in violation. • Must give 60-day notice. • Can not bring action if EPA or a State is “diligently prosecuting.”

31. Mobile Source Enforcement • Section 205 sets forth separate enforcement authorities for mobile sources. • No criminal enforcement authority. • Section 208 sets forth information gathering authority.

32. Who is a person subject to enforcement? • Section 302 defines person as an individual, corporation or other business entity such as a partnership, a state or local government, the federal government.