Environmental Law & Climate Change Law Blog

OVERVIEW OF THE CLEAN AIR ACT

Recent Posts Concerning the Clean Air Act:

1. Sixteen Petitions for Review Filed Regarding EPA’s Endangerment Finding: A Short Legal Analysis. Posted February 18, 2010.
2. Legal Challenges to EPA’s Endangerment Finding Will Go Nowhere and Waste Time and Money.  Posted February 14, 2010.
3. Environmental Groups Sue EPA for Failure to Update Clean Air Act Regulations for Oil and Gas Drilling.  Posted 01/18/2009.
4. D.C Circuit Reinstates CAIR Pending EPA Review.  Posted 12/30/2008.
5. Court Overturns 15-Year Old Pollution Exemption for Industries. Posted 12/24/2008.
6. EPA Administrator Issues Memorandum Prohibiting Controls on Carbon Dioxide in Clean Air Act Permits.  Posted 12/21/2008.
7. Recent Environmental Law Cases – June 7, 2008.  Posted 06/07/2008.
8. Coalition of States File Suit Over Ozone Standards.  Posted 05/28/2008.
9. EPA Will Issue Advance Notice of Proposed Rulemaking on Aircraft Emissions.  Posted 05/05/2008.
10. States File Lawsuit to Enforce Ruling in Massachusetts v. EPA.  Posted 04/03/2008.
11. One Year Later:  Whither the EPA After Massachusetts v. EPA? Posted 04/01/2008.
12. Another Source of Ozone? Posted 03/24/2008.
13. Ozone Standard and the President.  Posted 03/19/2008.
14. Did the White House Meddle with the Secondary Ozone Standard?  You Decide. Posted 03/17/2008.
15. New Ozone Standard – Tough, But Tough Enough? . . . And Is It Tough On The Right People? Posted 03/15/2008.

I. OVERVIEW

1. History
   1. Air Pollution Control Act of 1955, ch. 360, 69 Stat. 322.
   2. Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392
   3. Air Quality Act of 1967, Pub. L. 90-148, 81 Stat. 465
   4. Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676
   5. Clean Air Act Amendments of 1977, Pub. L. No. 95095, 91 Stat. 685
   6. Clean Air Act of 1990, Pub. L. No. 101-549, 104 Stat. 2399
2. Structure
   1. Establishes basis for attainment and maintenance of air quality standards.
   2. Sets emission standards for motor vehicles and fuels.
   3. Regulates hazardous air pollutants.
   4. Protects stratospheric ozone and addresses acid rain.
   5. Creates a permit program to monitor air emissions.
   6. Imposes strict sanctions
3. Statutory and Regulatory References
   1. 42 U.S.C. Sections 7401 – 7671q
   2. Clean Air Act (CAA) Sections 101 – 618
   3. 40 C.F.R. Sections 50 – 95

II. NON-ATTAINMENT ISSUES (TITLE I OF THE AMENDMENTS)

1. National Ambient Air Quality Standards (NAAQS) – CAA § 109
   1. The principal regulatory program established under the Clean Air Act has two basic elements:
      1. Primary standards, defined in § 109(b)(1) of the Act as “ambient air quality standards the attainment and maintenance of which in the judgment of the administrator, based on such criteria in allowing an adequate margin of safety, are requisite to protect the public health.” 35 U.S.C. § 7409(b)(1).
      2. Secondary standards, that, according to Section 109(b)(2) “specify a level of air quality the attainment and maintenance of which in the judgment of the administrator, based on such criteria, it is requisite to protect the public welfare from any known or anticipated effects associated with the presence of air pollutants in the ambient air.” 35 U.S.C. § 7409(b)(2)
   2. USEPA has promulgated NAAQS for six criteria pollutants (See 40 C.F.R. Part 50 (1994)):
      1. sulfur dioxide,
      2. particulate matter,
      3. nitrogen dioxide,
      4. carbon monoxide,
      5. ozone, and
      6. lead.
2. State Implementation Plans – CAA § 110
   1. Each state to submit a State Implementation Plans (SIP) for implementation, maintenance, and enforcement of the national standards within its jurisdiction.
   2. USEPA reviews each SIP and may approve or disapprove the SIP, in whole or in part. CAA § 110(a)(2), 42 U.S.C., § 7410(a)(2).
   3. Once a SIP receives USEPA approval, it becomes an element of federal and state law and may be enforced by both federal and state authorities.
   4. If a state fails to gain approval of its SIP, the USEPA may promulgate a plan of its own, called a federal implementation plan (FIP).
3. Nonattainment Areas – Sections 171-178
   1. Overview
      1. Regions that have failed to meet the NAAQS for one or more criteria pollutants are designated as “nonattainment areas.”
      2. New or modified major stationary sources proposed for nonattainment areas are required to comply with stringent permitting requirements, including a showing that offsetting reductions from other sources will produce a net decrease in total emissions in the area, in achievement of the “lowest achievable emission rate” (LAER). CAA § 173, 42 U.S.C. §7503.
   2. Ozone Nonattainment Areas
      1. Classification
         1. Five Categories
            1. Marginal (ozone design value of 0.121-138 parts per million (“ppm”);
            2. Moderate (0.138-0.160 ppm);
            3. Serious (0.160-0.180 ppm);
            4. Severe (0.180-0.280 ppm); and
            5. Extreme (above 0.280 ppm).
         2. States may request that areas with design values within five percent of a higher or lower classification be placed in a higher or lower category.
         3. More stringent emission controls are required in each successive category.
      2. Attainment Deadline
         1. Existing Nonattainment Areas
            1. Marginal areas must reach attainment within three years;
            2. Moderate areas within six years;
            3. Serious areas within nine years;
            4. Severe areas within 15 years (Severe areas with a design value between 0.19 ppm-0.28 ppm, such as the Chicago area, will be given 17 years); and
            5. Extreme areas within 20 years.
         2. Upon request by a state, USEPA may grant up to two one-year extensions if the SIP has been fully implemented and no more than one exceedance of the ozone standard has occurred in the nonattainment area prior to the extension year.
         3. Areas Designated in the Future

            Areas that have attained or are unclassifiable for ozone NAAQS, but are later redesignated to nonattainment areas, are subject (at redesignation) to the same requirements as areas that are initially designated nonattainment for ozone, except that any fixed dates are extended between enactment and the date that the area is redesignated to nonattainment.

         4. Failure to Attain
            1. After an eighteen month grace period following the applicable attainment date, USEPA may impose high offset ratios (two to one), and/or withhold federal highway funds.
            2. USEPA may impose a federal implementation plan.
            3. After six months of failure to attain, an area is automatically reclassified to either the next higher classification or the classification that corresponds to the area’s design value.

III. MOBILE SOURCES AND CLEAN FUELS (TITLE II OF THE AMENDMENTS)

1. Emission Standards for Mobile Sources – Sections 201-234

   The Clean Air Act establishes allowable levels of auto emissions and authorized USEPA to control fuels and fuel additives.

2. Clean Fuel Vehicles and Alternative Fuels – Section 241-250

   Contains provisions for alternative fuels and for the use of “clean fuel” in vehicles.

IV. HAZARDOUS AIR POLLUTANTS (TITLE III OF THE AMENDMENTS) – CAA § 112

1. Overview
   1. USEPA authorized to establish health-based national emission standards for hazardous air pollutants (NESHAP) to protect the public from these pollutants. CAA § 112, 42 U.S.C. § 7412. (See, Environmental Groups Sue EPA for Failure to Update Clean Air Act Regulations for Oil and Gas Drilling.  Posted 01/18/2009.)
   2. Since 1970, USEPA has listed only eight hazardous air pollutants and has established standards for only seven.
   3. 1990 Amendments establish technology-based standards for 189 hazardous substances based on the use of Maximum Achievable Control Technology or MACT. CAA § 112(b), 42 U.S.C. § 7412(b).
   4. Amendments also authorize USEPA to establish a program for the prevention of accidental releases. CAA § 112(r), 42 U.S.C. Section 7412(r).
2. Definition of “Hazardous Air Pollutants”
   1. Definition of Hazardous Air Pollutant
      1. Defined as “any air pollutant listed pursuant to” section 112(b). 42 U.S.C. § 7412(a)(6).
      2. USEPA required under Section 112(b)(2) to periodically review the list established under section 112(b) and to add or subtract pollutants by rule.
      3. A pollutant may be added to the list if USEPA deems it worthy of regulation because “through inhalation or other routes of exposure” it presents, or may present “adverse human health effects.”
   2. Exceptions to the Definitions
      1. Criteria pollutants, i.e., those for which NAAQS have been established, are not listed HAPs.
      2. Any chemical regulated under the stratospheric ozone title (Title VI) may not be a listed HAP if it solely causes “adverse environmental effects.” CAA § 112(b)(2), 42 U.S.C. § 7412(b)(2).
      3. Elemental lead and releases subject to regulation under the accidental release prevention program (CAA § 112(r)) as a result of emissions to the air are also not regulated. CAA § 112(b)(7), 42 U.S.C. § 7412(b)(7) and (2).
      4. HAPs are expressly excluded from the Prevention of Significant Deterioration (“PSD”) Program. CAA § 112(b)(6) 42 U.S.C. § 7412(b)(6).
3. Listing and Delisting Process
   1. Any person may petition USEPA to modify the statutory list of chemicals by adding or deleting a substance. CAA § 112(b)(3)(A), 42 U.S.C. § 7412(b)(3)(A).
      1. USEPA has eighteen months to grant or deny the petition. CAA § 112(b)(3)(A) 42 U.S.C. § 7412(b)(3)(A).
      2. USEPA on its own motion or by petition, must add an air pollutant to the list where it is shown that “emission, ambient concentrations, bioaccumulation or deposition of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects.” CAA § 112(b)(3)(B), 42 U.S.C. § 7412(b)(3)(B).
      3. USEPA must remove a chemical from the list where it is shown that “there is adequate data on the health and environmental effects of the substances to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to the human health or adverse environmental effects.” CAA § 112(3)(C), 42 U.S.C. § 7412(3)(C).
   2. If a delisting petition is filed for antimony compounds, arsenic compounds, (inorganic, including arsine), beryllium compounds, cadmium compounds, chromium compounds, cobalt compounds, cyanide compounds, glycol ethers, lead compounds, manganese compounds, mercury compounds, nickel compounds, radionuclides (including radon), or selenium compounds, USEPA must first grant or deny the delisting petition before it may promulgate a NESHAP for a category or a subcategory. CAA § 112(b)(3)(D), 42 US.C. § 7412(b)(3)(D).
   3. Coke oven emissions, mineral fibers and polycyclic organic matter may not be delisted. CAA § 112(b)(3)(A), 42 U.S.C. § 7412(b)(3)(A).
4. Schedule to Promulgate Emission Standards; Source Compliance Deadlines
   1. By November 15, 1992, USEPA was required to publish a schedule establishing a date for promulgating emission standards for each category and subcategory. 42 U.S.C. § 7412(e)(3).
   2. The Clean Air Act further established priorities for promulgating standards. The USEPA, in prioritizing its efforts, is to consider, pursuant to CAA § 112(e)(2), 42 U.S.C. § 7412(e)(2):
      

      (A) the known or anticipated adverse effects of such pollutants on public health and the environment; (B) the quality and location of emissions or reasonably anticipated emissions of hazardous air pollutants that each category or subcategory will emit; and (C) the efficiency of grouping categories or subcategories according to the pollutants emitted, or the processes or technologies used.

   3. USEPA is to promulgate standards, called Maximum Available Control Technology (MACT) standards, as “expeditiously as practicable,” but the Clean Air Act also established a minimum number of sources which must be regulated pursuant to a schedule.
      1. By November 15, 1994, emission standards for twenty-five percent of the listed categories and subcategories were to have been promulgated. CAA § 112(e)(1)(C), 42 U.S.C. § 7412(e)(1)(C).
      2. The next 25 percent of the standards must be promulgated by November 15, 1997. CAA § 112(e)(1)(D), 42 U.S.C. § 7412(e)(1)(D).
      3. All emission standards must be promulgated by November 15, 2000. CAA § 112(e)(1)(E), 42 U.S.C. § 7412(e)(1)(E).
      4. Generally, existing sources must meet promulgated standards as expeditiously as practicable, but no later than three years after the promulgation of a standard. CAA § 112(i)(3)(A), 42 U.S.C. § 7412(i)(3)(A).
5. Early Reduction Credits – Alternative Standards for Existing Sources and Compliance Date Extensions.
   1. Alternative Standards
      1. Existing sources may be allowed to comply with an alternative standard rather than a MACT limit if the source had dramatically reduced its emissions prior to approval of the MACT standard. 42 U.S.C. § 7412(i)(5).
      2. A source must have reduced its HAP emissions by 90%, or by 95% if the HAPs are particulates. CAA § 112(i)(5)(A), 42 U.S.C.§ 7412(i)(5)(A).
      3. If the source is granted an alternative limit, this standard must be incorporated as an enforceable limit in a Title V permit. CAA § 112(i)(5)(D), 42 U.S.C. § 7412(i)(5)(D).
      4. Alternative standards are not available for residual risk standards promulgated under § 112(f).
   2. Extensions to MACT Compliance Dates

      A source can extend its compliance date for a MACT standard for six years if it had achieved 90% reduction in practice prior to proposal of the MACT standard. CAA § 112(i)(5), 42 U.S.C. § 7412(i)(5).

   3. For purposes of establishing the reduction baseline, a “baseline year” must be established not earlier than calendar year 1987. CAA § 112(i)(5)(C), 42 U.S.C. § 7412(i)(5)(C).
   4. Reductions in emissions from the baseline year must be “verifiable and actual.”
   5. No evidence can exist that emissions from the baseline year are “artificially or substantially greater” than emissions in other years. CAA § 112(i)(5)(C), 42 U.S.C. § 7412(i)(5)(C).

1. Permit Hammer
   1. Eighteen months after USEPA has missed the deadline for promulgating a MACT standard and after the effective date of a permit program under Title V, the owner or operator of any major source shall submit a permit application to either the state or USEPA. CAA § 112(j)(l) and (2), 42 U.S.C. § 7412(j)(1) and (2).
   2. The permitting authority is to issue a case-by-case MACT standard which is deemed to be equivalent to the MACT standard that USEPA would have proposed. CAA § 112(j)(5), 42 U.S.C. § 7412(j)(5).
   3. State Program Delegations
      1. Under § 112(l), states may develop a program to implement and enforce § 112 and the accidental release program in § 112(r).
      2. One hundred eighty days after submittal of a state program, USEPA must approve or disapprove the state program submission. CAA § 112(l)(5), 42 U.S.C. § 7412(l)(5).
      3. USEPA must disapprove a program where it determines that the state does not:
         1. have adequate authority to assure compliance with all standards by all sources (§ 112(l)(5)(A));
         2. have adequate resources to implement the program (§ 112(l)(5)(B)); or,
         3. comply with guidance under § 112(l)(2) or that it does not satisfy the Clean Air Act (§ 112(l)(5)(D)).
      4. USEPA may withdraw its approval of a state program if the state is not administering and enforcing the approved program. CAA § 112(l)(6), 42 U.S.C. § 7412 (l)(6).
      5. Approval of a state program does not pre-empt USEPA from enforcing any standard itself. CAA § 112(l)(7), 42 U.S.C § 7412(l)(7).
   4. Judicial Review
      1. Review of a decision to add a pollutant to the § 112(b) list of HAPs or to add a source category or subcategory is deferred until USEPA promulgates the relevant NESHAPs. CAA § 112(e)(4), 42 U.S.C § 7412(e)(4).
      2. The citizen’s suit provision, § 304, can be filed immediately only where violations are alleged of § 112(i)(3)(A) (the compliance date provision for existing sources) or where a violation of a § 112(f)(4) is alleged (a violation of a residual risk standard). CAA § 304(b), 42 U.S.C. § 7604(b).

V. ACID DEPOSITION CONTROL (TITLE IV OF THE AMENDMENTS) – CAA §§ 401-413

1. Reductions in SO2 Emissions
   1. Emission Allowances
      1. Title IV calls for a reduction in SO2 emissions of ten million tons per year (“tpy”) from 1980 levels by 2000. USEPA is required to use an innovative, market-based approach.
         1. Each affected facility will be issued a number of “allowances” based on previous energy use and applicable emission limits.
         2. Each allowance confers the right to discharge one tpy of SO2 and is fully transferable.
         3. Each affected facility must emit no more SO2 than permitted by the number of allowances it has.
         4. Failure to comply will result in a fine and reduction in allowances for the following year.
         5. Some will be held in reserve to be sold at auction.
      2. The SO2 allowance program will be implemented in two phases.
   2. Phase I

      Phase I applies to § 111 facilities, that is large facilities that emit large amounts of SO2 at an inefficient rate of pounds of SO2/billion btu (2.5lb/mmbtu). CAA § 111, 42 U.S.C. § 7411.

   3. Phase II

      Phase II begins in the year 2000 and will affect facilities that generate more than twenty-five MW of electricity and more than 1.2 lb/mmbtu.

2. Reductions in NOx Emissions
   1. No allowances.
   2. Reduction in annual NOx emissions of 2 million tpy by 2000.
   3. Will be implemented through issuance of permits.

VI. PERMITS (TITLE V OF THE AMENDMENTS) – Sections 501- 507

1. Who Needs A Permit?
   1. Sources determined to be a “major source”
      1. Major source is defined as any stationary source (or any group of stationary sources) that:
         1. are located on one or more contiguous or adjacent properties, including support activities for the primary operation (such as laboratories or maintenance shops);
         2. are under the common control of the same person;
         3. belong to a single major industrial grouping (that is, share the first two digits of the SIC Code); and,
         4. emit more than the threshold amount.
      2. Threshold amounts vary, depending on the pollutant emitted.
         1. Any air pollutant regulated by the CAA – 100 tons/year. 415 ILCS 5/39.5(2)(C)(ii).
         2. Particulate matter (PM-10) in an area designated as a serious nonattainment area – 70 tons/year. 415 ILCS 5/39.5(2)(C)(iii)(D).
         3. VOCs, NOx, or CO in areas that USEPA has designated as serious nonattainment areas for ozone or CO or, for VOCs only, an ozone transport region – 50 tons/year. 415 ILCS 5/39.5(2)(C)(iii)(A) and (C).
         4. Any combination of hazardous air pollutants (HAPs) listed in § 112(b) of the CAA – 25 tons/year. 415 ILCS 5/39.5(2)(C)(i).
         5. VOCs or NOx in an area designated as a severe nonattainment area – 25 tons/year. 415 ILCS 5/39.5(2)(C)(iii)(A).
         6. VOCs or NOx in an area designated as an extreme nonattainment area – 10 tons/year. 415 ILCS 5/39.5(2)(C)(iii)(A).
         7. Any single HAP listed in § 112(b) of the CAA – 10 tons/year. 415 ILCS 5/39.5(2)(C)(i).
      3. Whether fugitive emissions from a source are included in determining the amount of emissions depends the threshold being used.
         1. Fugitive nonattainment pollutants and hazardous air pollutants (HAPs), count.
         2. Fugitive for determining the 100 tons per year (tpy) “general” threshold only count if the facility is in one of the 28 source categories listed in the permit rule.
      4. Definition of “potential to emit.”
         

         the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the USEPA. . . .

   2. In addition to the above, if you fall into one of the following categories, you will need a permit:
      1. New Source performance standards (NSPS) (or related or emission limitations) under CAA § 111;
      2. National emission standards for HAPs under CAA § 112; or
      3. Emission limitations under the acid rain program (CAA Title IV).
   3. Identifying Applicable Requirements