Clean Air Act Compliance / Enforcement Guidance Manual - Chapter
1 Introduction 1-1.
2 A Short History 1-3.
3 The Clean Air Act 1-7.
4 Overview 1-201.
National Ambient Air Quality Standards 1-201.
Air Quality Control Regions ( Section 107 ) 1-203.
State Implementation Plans ( Section 110 ) 1-204.
Parts C and D: PSD and Nonattainment
New Source Review 1-205.
Part C: Prevention of Significant Deterioration
( Sections 160-169 ) 1-206.
Continuing Obligations of the Permit Holder 1-209.
Applicability of PSD or "Who Needs a PSD Permit?" 1-210.
Part D: Plan Requirements for Nonattainment Areas
( Sections 171-178 ) 1-212.
Standards of Performance for New Stationary Sources
( Section 111 ) 1-217.
National Emission Standards for Hazardous Air Pollutants
( Section 112 ) 1-228.
Federal Enforcement (Sections 113 and 120) 1-231.
Inspections, Monitoring, and Entry ( Section 114 ) 1-233.
Exhibit 1-1: National Ambient Air Quality Standards 1-235.
Exhibit 1-2: Comparison of PSI Values, Pollutant Levels,
and General Health Effects 1-236.
The Clean Air Act, 42 U.S.C. Sections 7401, et seq., as amended, is
intended to foster the protection and enhancement of the nation's air
quality and to safeguard public health and welfare, and the productive
capacity of the population. The Act is divided into three titles. Title I
( Sections 101 through 178 ) deals with control of pollution from stationary
sources, Title II ( Sections 201 through 234 ) deals with control of
pollution from mobile sources, and Title III (Sections 301 through 327)
addresses general and administrative matters. In addition, Public Law 95-95
established certain authorities that are related to, but did not amend, the
Act. This guidance manual is aimed at providing an introductory
understanding of the Act and EPA procedures for Agency personnel involved in
compliance and enforcement activities associated with the control of air
pollution from stationary sources.
The Act is quite complex--so complex that a summary overview necessitates
resort to generalizations that are, in fact and practice, fraught with
exceptions and detailed distinctions. But, with that caveat in mind, we
will proceed with a general description of the Act's framework pertaining to
The Act directs the Administrator to promulgate national ambient air quality
standards ( NAAQS ) for certain pollutants to protect the public health with
an adequate margin of safety ( primary NAAQS ) and to protect the public
welfare ( secondary NAAQS ). Each state is required to adopt a plan, called
a State Implementation Plan ( SIP ), that provides for emissions reductions
from air pollution sources to the extent necessary to achieve and maintain
the NAAQS. States are also required to adopt measures to prevent
significant deterioration of air quality ( PSD ) in "clean air areas."
Following state adoption, the SIP is submitted to EPA for approval before
becoming effective. Disapproved plans, or portions of plans, require
revisions by states or, as a last resort, promulgation by the Administrator.
When a SIP is approved by the Administrator, it is enforceable by both the
federal and state governments.
In addition to the SIP regulatory scheme, the Act establishes two other
major regulatory programs for stationary sources. First, the New Source
Performance Standards ( NSPS ) program establishes stringent emissions
limitations applicable to "new" sources in designated industrial categories
nationwide, regardless of the state in which the source is located or the
air quality associated with the area. The second program, the National
Emissions Standards for Hazardous Air Pollutants ( NESHAP ), regulates
emissions of pollutants for which no NAAQS is applicable and which endanger
The Act establishes various authorities underpinning EPA's compliance and
enforcement activities. In order to obtain information for purposes of
rulemaking, enforcement, and determining compliance status, EPA is vested
with the authority to enter and inspect air pollution sources, and to gather
other types of information. To remedy violations of regulations adopted
pursuant to the Act and to deter future noncompliance by the violating
source and the rest of the regulated community, EPA is authorized to seek
civil and criminal relief in federal district courts. Civil relief may take
the form of an injunction requiring compliance with applicable regulations
by a certain date, and penalties may also be assessed. Criminal conduct may
result in a prison sentence and monetary penalties for willful and
intentional violations of the Act.
The Act also provides for certain administratively issued orders and notices
to remedy instances of noncompliance. EPA may also administratively assess
monetary penalties for noncompliance which assessment is designed to remove
any economic benefit accruing to a violator from noncompliance.
Finally, the Act provides for public participation at various stages in the
regulatory development and enforcement process, both at the state and
federal levels. The Act also provides for funding for various research and
development programs, for periodic review of standards, and for cooperation
among state, local, and federal governments.
2 A Short History
The federal air pollution control effort began with the Air Pollution
Control Act of 1955. The 1955 Act essentially authorized research into the
effects of air pollution, but it also established the authority of the
Surgeon General of the United States to investigate particular air pollution
problems. However, the law restricted the Surgeon General's authority by
requiring that he act only upon request of a state or local government.
In 1963, Congress enacted the Clean Air Act. Instead of requiring a request
from a state or local government, this Act empowered the Surgeon General to
investigate specific air pollution problems if he determined that the
pollution originating in one state affected another. The 1963 Act, however,
still hampered effective abatement action by the federal government because
it required that the Secretary of the Department of Health, Education and
Welfare determine that the pollution endangered the health or welfare in the
state adjacent to the state of the polluting source. Further encumbering
the abatement process was the requirement that the federal government hold a
series of meetings with the state and local officials, as well as with the
polluter. If the federal government then determined that an enforceable
abatement scheme was necessary, recourse was limited to obtaining a judicial
compliance order for which the government carried the burden of showing both
the "practicability" of compliance as well as the "physical and economic
feasibility" of the abatement project. ( P.L. 88-206, Section 5(g)(1963) )
Both of those requirements presented burdensome evidentiary hurdles to the
government. Very little abatement resulted.
The immediate predecessor to the modern Clean Air Act was the Air Quality
Act of 1967, which for the first time required the designation of Air
Quality Control Regions ( AQCRs ), a requirement carried over to the present
Act. AQCRs were to be "based on jurisdictional boundaries, urban-industrial
concentrations, and other factors including atmospheric areas necessary to
provide adequate implementation of air quality standards." Under the Air
Quality Act of 1967, states were required to establish ambient air quality
standards. These state air quality standards were the forerunners to the
National Ambient Air Quality Standards ( NAAQS ) that form the backbone of
the present-day law. With respect to enforcement, the conference procedures
established by the 1963 Act survived under the 1967 Act with the net result
that ( by 1970 ) the government had filed only one case in a federal court.
The modern approach to air pollution control was born in 1970 with the
enactment of the Clean Air Act Amendments of 1970. A critical difference
between the 1970 Act and previous law was the increased authority of the
federal government in air pollution control. The 1970 Act provided for the
adoption of National Ambient Air Quality Standards and the requirement that
each state adopt legislation and regulations, called State Implementation
Plans ( SIPs ), that include adequate measures necessary to achieve and
maintain the NAAQS. If a state did not adopt such measures, then EPA was
empowered to do so for the state. This approach clearly recognized that
pollution generated in one state may cause or contribute to unhealthful or
undesirable air quality in another state or states.
The designers of the 1970 Act also recognized that air pollution controls
are generally more effective and less costly when designed as part of the
original production facility, rather than retrofitted to an existing
facility. As well-controlled new facilities come into operation, replacing
older and more polluting facilities, a net air quality benefit would be
realized over time. Thus, the 1970 Act established the New Source
Performance Standards ( NSPS ), which assigned stringent technology-based
emission limitations on "new" sources of air pollution in certain designated
industrial categories. These federal standards apply in every state and so
avoid the problem of "pollution havens" being created by disparities in the
stringency of emission limitations from state to state. The uniformity of
the NSPS discourages owners from locating new industrial sources in
particular states to avoid pollution control costs associated with other
Also enacted in the 1970 Act were provisions directing the federal
regulation of hazardous air pollutants. The National Emission Standards for
Hazardous Air Pollutants ( NESHAPs ) regulate pollutants for which there is
no applicable NAAQS and that may cause or contribute to air pollution
reasonably anticipated to result in mortality or an increase in serious
irreversible, or incapacitating reversible, illness.
The 1970 Amendments discarded, for most cases, the Byzantine enforcement
procedures of the preceding enactments and substituted a straightforward
approach authorizing the Administrator to issue an administrative compliance
order or to commence a civil action in U.S. district court for appropriate
relief, including a permanent or temporary injunction against a violator.
The 1970 Amendments also authorized criminal prosecutions of "knowing"
violators. Moreover, to further strengthen the drive against sources of air
pollution, the 1970 Amendments authorized citizen suits against violators of
the Act, including government agencies, and against the Administrator for
failure to perform nondiscretionary duties.
The authority of EPA to enter and inspect sources of air pollution for the
purposes of regulatory development, determination of whether a standard is
being violated and to carry out the Act's emergency powers, is a product of
the 1970 Act. The air pollution emergency powers were also enacted in 1970.
The Administrator is empowered to seek to restrain promptly, either by
administrative order or court order, a polluting source or combination of
sources from presenting an imminent and substantial endangerment to the
health of persons.
The Clean Air Act was amended again in 1974 in the wake of the energy crisis
spawned by the Organization of Petroleum Exporting Countries' oil embargo.
The 1974 Amendments, known as the Energy Supply and Environmental
Coordination Act of 1974 ( ESECA ), were intended to provide for means to
deal with energy shortages by providing for, among other things, temporary
suspensions of air pollution control requirements in certain emergency
circumstances and delayed compliance orders to permit fuel conversions from
oil to coal.
The Clean Air Act underwent a major overhaul in the 1977 Amendments.
Significant additional enforcement powers were granted to EPA including a
federal district court cause of action for civil penalties of up to $25,000
per day of violation and administratively assessed noncompliance penalties
to remove the economic benefit of delayed compliance.
Importantly, the 1977 Amendments added more stringent minimum requirements
for State Implementation Plans to prevent significant deterioration of air
quality in "clean air areas" ( Part C ) and stringent requirements for major
"new" sources locating in areas not achieving the NAAQS ( Part D ). The
1977 Amendments established December 31, 1982, as the final date for
attainment of the primary NAAQS, except for certain areas particularly
affected by mobile source pollution for which the possibility of a 1987
attainment deadline was established.
Other significant features of the 1977 Amendments were the requirement of a
"percentage reduction" of emissions for fossil fuel-fired stationary sources
subject to NSPS, provisions for the issuance of delayed compliance orders in
certain narrowly defined types of cases, and provisions for the issuance of
orders to qualifying nonferrous smelters to defer compliance with sulfur
dioxide limitations to no later than January 1, 1988.
Most recently, Congress responded to the deteriorating economic conditions
of the domestic iron and steel industry by enacting the Steel Industry
Compliance Extension Act of 1981 ( SICEA ), which permitted the
Administrator to exercise discretion to agree to court orders allowing
qualifying iron and steel sources up to the end of 1985 to comply with SIP
requirements. The capital savings realized from the deferral of pollution
control costs were required to be invested in iron and steel facilities to
improve their efficiency and productivity.
With the exception of SICEA and certain technical amendments, a host of
other legislative initiatives, supported by various groups from industry,
environmental groups, and the federal government has since 1977 failed to
result in additional amendments to the Act.
3 The Clean Air Act (Pages 6 - 200)
( The Clean Air Act Text is not available in this computer version )
The central components of the regulatory scheme of the Act may be said to
include the following:
o Section 107 pertaining to Air Quality Control Regions;
o Section 109 pertaining to National Ambient Air Quality Standards;
o Section 110 pertaining to State Implementation Plans;
o Section 111 pertaining to New Source Performance Standards;
o Section 112 pertaining to National Emission Standards for Hazardous
o Sections 113 and 120 pertaining to federal enforcement; and
o Section 114 pertaining to inspections, monitoring and entry.
The remaining components of Titles I and III are either very specific in
nature ( e.g., provisions relating to federal facilities ) or are of a
general administrative nature ( e.g., provisions relating to rulemaking and
judicial review ). As such, these components are not deemed, for purposes
of this manual, to be central to a basic understanding of the regulatory
scheme of the Act. These components are nevertheless important and are
discussed under the heading of "Special Considerations" in Chapter Eleven.
We have chosen this approach to avoid the potential for "losing sight of the
forest due to the trees."
National Ambient Air Quality Standards
Much of the activity engaged in by EPA and state air pollution control
agencies is aimed at achieving and maintaining the National Ambient Air
Quality Standards. Section 109 directs the Administrator to establish NAAQS
to protect the public health with an adequate margin of safety and to
protect the public welfare. The standard to protect the public health is
called the "primary NAAQS," and the standard to protect the public welfare
is called the "secondary NAAQS." The standards are expressed as a
concentration of the pollutant averaged over a period of time. Exhibit 1-1
lists the NAAQS and describes some of the effects of the pollutants.
Note that the secondary standards are sometimes more stringent than the
primary standards. This is true because the values associated with the
secondary standards are sometimes more sensitive to the harmful effects of
pollutants than is human health. Section 302(h) provides:
All language referring to effects on welfare includes, but is
not limited to, effects on soils, water, crops, vegetation,
man-made materials, animals, wildlife, weather, visibility,
and climate, damage to and deterioration of property, hazards
to transportation, as well as effects on personal comfort and
Whether or not an NAAQS is established for a pollutant depends on the
results of scientific study. Section 108 requires the Administrator to
issue air quality criteria that "accurately reflect the latest scientific
knowledge useful in indicating the kind and extent of all identifiable
effects on public health or welfare which may be expected from the presence
of such pollutant in the ambient air, in varying quantities." The criteria
include information, to the extent practicable, that describes the
o Those variable factors ( including atmospheric conditions ) that, of
themselves or in combination with other factors, may alter the
effects on public health or welfare of such air pollutant;
o The types of air pollutants that, when present in the atmosphere,
may interact with such pollutant to produce an adverse effect on
public health or welfare; and
o Any known or anticipated adverse effects on welfare.
Pollutants for which criteria had been issued prior to 1970 were required to
be addressed by an NAAQS proposed within 30 days after the date of enactment
of the 1970 Amendments. Any pollutants for which criteria are issued after
1970 are addressed by NAAQS to be proposed simultaneously with the issuance
of the criteria. Section 109(d)(1) requires the Administrator to "(not)
later than December 31, 1980, and at five-year intervals thereafter * * *
complete a thorough review of the criteria * * * and the national ambient
air quality standards * * * and promulgate such new standards as may be
The NAAQS should not be confused with emission standards. The latter
standards apply to individual sources of air pollution or categories of
industrial sources. The NAAQS, on the other hand, serve as benchmarks from
which each state derives the total emission reductions necessary to be
accomplished in a given area. The requisite total emission reductions are
translated into specific emission limitations that sources must meet on a
continuous basis. Consequently, EPA does not enforce the NAAQS per se.
Instead, EPA enforces emission standards designed to contribute to
achievement and maintenance of the NAAQS.
Air Quality Control Regions ( Section 107 )
The Air Quality Act of 1967 required the designation of AQCRs based on
"jurisdictional boundaries, urban-industrial concentrations, and other
factors including atmospheric areas necessary to provide adequate
implementation of air quality standards." ( Section 107(a) (1967) ). The
1970 Clean Air Act Amendments repealed that section, but in the course of
establishing new criteria for AQCR designations, the 1970 Act carried
forward the designations made up to that time. ( Section 107(b)(1) (1970)
). In addition, the 1970 Act provided that the Administrator could
designate as an AQCR any interstate or major intrastate area deemed
necessary or appropriate for the attainment and maintenance of ambient air
quality standards. Today, the United States is divided into 247 AQCRs.
Many AQCRs are subdivided into smaller areas based on municipal boundaries,
latitudes and longitudes, and other boundaries. A complete list of AQCRs
(and their attainment status) is codified at 40 C.F.R. Part 81.
Within 120 days after the enactment of the 1977 Amendments, each state was
required to submit a list of all AQCRs or portions thereof that were:
o Not meeting a primary NAAQS for a criteria pollutant other than SO2
o Not meeting a primary NAAQS for SO2 or particulates; or would not,
in the time period set forth in the SIP, attain or maintain such
o Not meeting any secondary NAAQS;
o Not classifiable on the basis of available information for SO2 and
particulate NAAQS; or
o Enjoying air quality levels better than the primary or secondary
NAAQS other than for SO2 or particulate matter, or for which there
is insufficient data to be classified.
The Administrator then was given 60 days after submittal of the lists to
promulgate them with such modifications as deemed necessary. The lists are
reviewed from time to time by the state and can be revised by federal
promulgation, upon submission of the revision by the state. See Bethlehem
Steel Co. v. EPA, 723 F.2d 1303 ( 7th Cir. 1983 ).
Governors are authorized, with EPA approval, to redesignate AQCRs for the
purpose of efficient and effective air quality management, except where a
proposed redesignation of boundaries involves an AQCR that "the
Administrator finds may significantly affect air pollution concentrations in
another state." In such case, the approval of the governors of each such
affected state is required. ( Section 107(e) ( 1970 ) ). In Western Oil
and Gas Association v. EPA, 23 ERC 1185 ( 9th Cir. 1985 ), the court upheld
EPA's approval of the nonattainment designation for the San Francisco Bay
Area. In Ohio v. Ruckelshaus, 776 F.2d 1333 ( 6th Cir. 1985 ), the court
upheld EPA's refusal to redesignate Lorain County, Ohio, from
"nonattainment" to "attainment for ozone," even though monitoring data
indicated that the county had achieved the ozone NAAQS. The Sixth Circuit
concluded that EPA had acted reasonably, because emissions from sources
within Lorain County contributed to exeedances of the ozone standard in
State Implementation Plans ( Section 110 )
Each state must adopt and submit to the Administrator a plan for the
implementation, maintenance, and enforcement of the NAAQS (primary and
secondary) for each AQCR or portion thereof. States adopt the plans, known
as State Implementation Plans ( SIPs ), after reasonable notice and public
Following adoption of the SIP as state law, the state must submit the SIP to
the Administrator who is required "to approve or disapprove such ( SIP ) or
each portion thereof" after determining whether the submission satisfies the
requirements of Sections 110(a)(2)(A) through 110(a)(2)(K).
Briefly, to satisfy the minimum requirements of Sections 110(a)(2)(A)
through 110(a)(2)(K), a SIP must provide:
o For attainment of the primary NAAQS "as expeditiously as
practicable" but, with some exceptions, no later than December 31,
o For attainment of the secondary NAAQS at a specified "reasonable
o For emission limitations, schedules, and timetables for compliance
with such limitations and other measures as may be necessary to
ensure attainment and maintenance of the primary standard. Emission
limitations governing the amount of emissions allowed are called
"mass standards" and those governing the amount of light that a
smoke plume may obscure are called "opacity standards." The "other
measures" usually include at least operation and maintenance
requirements ( O/M );
o For a system to monitor, compile, and analyze data on ambient air
o For a program to enforce emission limitations;
o For a program to regulate the construction, modification, and
operation of sources, including a preconstruction review and permit
system for "new" sources in "clean air areas" ( see Part C below )
and nonattainment areas ( see Part D below ) as necessary to ensure
achievement and maintenance of the NAAQS;
o For the prohibition of emissions from sources in amounts that
prevent attainment or maintenance of the NAAQS in another state, or
interfere with another state's program to protect visibility or to
prevent significant deterioration of air quality;
o For ensuring compliance with Section 126 relating to interstate
o For funding, personnel, and authority to implement the SIP;
o For emission monitoring by sources and periodic reporting of the
nature and amounts of the emissions;
o For emergency powers;
o For procedures to accomplish revisions to the SIP as necessary to
account for revisions to the NAAQS, or to correct substantial
inadequacies in the SIP;
o For a construction ban in nonattainment areas unless a federally
approved Part D (nonattainment) plan is in effect; and
o For prevention of significant deterioration of air quality in
so-called "clean air areas" in accordance with Part C.
The Administrator shall approve the SIP or portion thereof if it meets the
requirements of Section 110(a)(2). Upon EPA approval, the SIP, or portion
thereof, becomes federally enforceable. If the Administrator determines the
SIP, or portion thereof, is substantially inadequate, the state must revise
the plan to correct the deficiency. ( Section 110(a)(2)(H) ).
Section 110(c) authorizes the Administrator to promulgate a SIP, or portion
thereof, for a state in any of the following circumstances: (1) if the
state fails to submit a plan; (2) if the state submits a plan, or portion
thereof, that is not in accordance with Section 110 requirements, or (3) if
a state fails to revise a plan within 60 days after notification by the
Administrator of an inadequacy in the SIP.
Parts C and D: PSD and Nonattainment New Source Review
In Fri v. Sierra Club, 412 U.S. 541 ( 1973 ), the Supreme Court ruled that
the 1970 Act's statement of purpose includes a requirement that SIPs
include provisions designed to prevent significant deterioration ( PSD ) of
air quality in attainment areas. The Court's ruling upheld a district
court's injunction requiring EPA to disapprove state plans and to promulgate
regulations where the plan failed to provide for the prevention of
significant deterioration of air quality. Neither Section 101(b) ( 1970 ),
which states the purposes of the Act, nor Section 110(a)(2) ( 1970 ), which
sets forth minimum SIP requirements, explicitly required PSD.
In response to the district court's order, EPA disapproved all SIPs in
November 1972. Following the Supreme Court's affirmance of the district
court's order, EPA initiated rulemaking in 1973 to incorporate PSD
provisions into SIPs. Regulations were promulgated in 1974 and were upheld
by the U.S. Court of Appeals for the District of Columbia Circuit.
Part C: Prevention of Significant Deterioration ( Sections 160-169 )
The requirements of Part C are in addition to provisions aimed at achieving
and maintaining the NAAQS. ( Alabama Power Co. v. Costle, 636 F.2d 323 (
D.C. Cir. 1979 ) ). SIPs must contain "adequate provisions" to prohibit
sources from interfering with measures designed to prevent significant
deterioration of air quality in areas designated as "attainment" or "not
classifiable." ( Section 110(a)(2)(J) ( 1977 ) ).
The purpose of Part C is not to prohibit industrial growth in clean air
areas, nor is it to prohibit any increases in ambient concentrations of
criteria air pollutants. Instead, Part C allows industrial growth while
protecting air quality through a permit system that employs a rubric of
"baselines," "increments," "ceilings," "maximum allowable increases," and
"maximum allowable concentrations." ( Section 163 ).
The groundwork for the PSD scheme lies in the classification of the PSD
areas (or parts thereof) as belonging to Class I, II, or III. (Note that
PSD areas do not necessarily have the same boundaries as AQCRs, although
they may). The amounts of "maximum allowable increases" in emissions and
"maximum allowable concentrations" of criteria pollutants over the
"baseline" depends on this classification.
Section 162 provides that Class I areas (commonly called "pristine areas")
o International parks;
o National wilderness areas that exceed 5,000 acres in size;
o National memorial parks that exceed 5,000 acres in size; and
o National parks that exceed 6,000 acres and were in existence on
August 7, 1977 (the effective date of the 1977 Amendments).
Class II areas include all attainment and not classifiable areas not
designated as Class I areas (unless subsequently redesignated). Class III
areas, not defined in the statute, refer to areas that the state decides not
to afford the protections associated with either the pristine or Class II
Baselines and Ceilings. In the PSD scheme, each class area has specific
maximum allowable increases (called "increments") in pollution
concentrations for particulate matter and SO2. The maximum allowable
increase over the baseline is called the ceiling. The "ceiling" is set at a
level yielding a maximum allowable concentration that is lower than the
NAAQS. The "emphatic goal of the PSD provisions is to prevent those
(ceilings) from being exceeded." Alabama Power Co. v. Costle, 636 F.2d 323,
362 ( D.C. Cir. 1979 ).
Consumption of increments is measured from established baselines. Baselines
were established by the 1977 Amendments and refer to the ambient
concentration levels that exist at the time of the first application for a
permit in an area subject to Part C, based on air quality data available to
EPA and the state and the monitoring data required to be submitted by the
permit applicant. ( Section 169(4) ). The "date of the first application
for a permit" varies with the area involved. The earliest possible baseline
date is August 7, 1977, the effective date of the 1977 Amendments. For some
areas, no baseline date is yet in place because there have been no permit
applications to date. In addition, an area may have one baseline date for
SO2 and another baseline date for particulate matter.
Permitting Authority. PSD is administered in accordance with the permit
system established by Sections 110(a)(2)(D) and 165(a)(1). Either EPA or a
state may be the permitting authority. The state is the permitting
authority if its SIP submittal was approved by the Administrator as meeting,
at a minimum, the requirements of Sections 110(a)(2)(D), 110(a)(2)(E), and
110(a)(2)(J) and the regulations at 40 C.F.R. Section 51.24.
If the Administrator disapproves the portion of the SIP submittal for PSD as
being "substantially inadequate," 40 C.F.R. Section 51.24(a)(3), the state
must revise the plan within 60 days. If the revised plan is still
substantially inadequate or if no plan is submitted at all by the state, the
provisions of 40 C.F.R. Section 52.21 are triggered with respect to that
portion of the plan, rendering EPA as the permitting authority. Finally, if
EPA is the permitting authority, EPA subsequently can delegate its authority
under the Act to a state that demonstrates it has the legal authority and
resources to carry out the program. ( 40 C.F.R. Section 52.21(u) ).
Preconstruction Review and Permits. Section 165 and the regulations at 40
C.F.R. Section 52.21 establish the requirements and procedures for
preconstruction review of proposed major stationary sources (and major
modifications). These requirements are extremely complicated. This section
of the manual only attempts to set forth the basic principles involved in
the preconstruction review and permit issuance process.
The PSD program contemplates that new major source construction or major
modification cannot begin in any area to which PSD applies unless a permit
has been secured prior to construction or modification. The permit must
meet the requirements of Part C. An application for a PSD permit must
contain the following information:
o Control Technology Review. Because the permit must require the
adoption of "best available control technology" ( BACT ) to control
"each pollutant subject to regulation under the Act that it would
have the potential to emit in significant amounts," the application
must provide information on the BACT proposed to be adopted. In
addition, since the permit must require compliance with all other
applicable SIP, NSPS, and NESHAP emission standards and standards of
performance, the application must also provide information on the
means by which the requirements will be complied with. ( 40 C.F.R.
Section 52.21(j) ).
o Source Impact Analysis. The permit application must demonstrate
that allowable emission increases from the proposed source, in
conjunction with all other emissions increases and decreases (from
other sources) would not cause or contribute to pollution violating:
-- The NAAQS, and
-- The maximum allowable increase over the baseline concentration
in any area. ( 40 C.F.R. Section 52.21(k) ).
The analysis must be based on the air quality models specified by 40
C.F.R. Section 52.21(1).
o Air Quality Analysis. The application must contain an analysis of
ambient air quality in the area that the source would affect for
each pollutant the source would have the potential to emit in a
significant amount. If the source is undergoing a major
modification, an analysis must be prepared for each pollutant for
which such modification would result in a significant net increase
in emissions. The permit requires pre-construction ambient
monitoring and may require post-construction ambient monitoring
necessary to determine the effect emissions from the source may have
on air quality in any area. ( 40 C.F.R. Section 52.21(m) ).
o Source Information. The permit application must contain the
-- A description of the nature, location, design capacity, and
typical operating schedule of the source, including
specifications and drawings;
-- A detailed construction schedule;
-- A detailed description of planned pollution controls and related
-- If the Administrator requests, the permit application must also
contain information on the air quality impact of the source, and
of "any or all general commercial, residential, industrial, and
other growth which has occurred since August 7, 1977, in the
area the source or modification would affect."
o Additional Impact Analyses. The permit application must provide an
analysis of the impairment that would result to visibility, soils,
and vegetation (except for vegetation that is commercially
valueless). ( 40 C.F.R. Section 52.21(o) ).
Federal Class I Area Impacts. If a permit application indicates that the
proposed source or modification would affect a Class I area's air
quality-related values (including visibility), the Administrator must notify
the Federal Land Manager or other federal official directly responsible for
the management of the land. The Land Manager or other official may then
demonstrate to the Administrator that emissions from the proposed source or
modification would have an "adverse impact" on the values (including
visibility). If the Administrator concurs in the demonstration, the permit
cannot be issued, even if the emissions would not cause an exceedance of the
maximum allowable increase for Class I areas.
Procedures. Section 165(a)(2) requires that a public hearing be held with
the opportunity for interested persons to appear and submit written or oral
presentations on the air quality impact of the proposed source, control
technology requirements, and "other appropriate considerations." In
practice, EPA holds a public hearing when someone requests one. EPA
issuance of PSD permits is governed by the procedures at 40 C.F.R. Part 124
(applicable to several permit programs) and PSD-specific procedural
regulations at 40 C.F.R. Sections 124.41 and 124.42.
Continuing Obligations of the Permit Holder
Section 52.21(r) of 40 C.F.R. sets forth certain obligations of the source.
Construction and operation of the source must be done in accordance with the
permit and the application for the permit. Construction must commence
within 18 months after receiving approval or the approval becomes invalid,
subject to certain qualifications. Finally, the source must comply fully
with applicable provisions of the SIP and other local, state, or federal
Applicability of PSD or "Who Needs a PSD Permit?"
The preconstruction review and permit requirements of Section 165 apply to
o Major emitting facility
o Which commenced
o After August 7, 1977
o In an area to which PSD applies.
A "major emitting facility" is defined in Section 169(1) as any of 27
categories of sources (listed below) that "emit, or have the potential to
emit, one hundred tons per year or more of any air pollutant" and "any other
source with the potential to emit 250 tons per year or more of any air
pollutant." In the 1978 regulations, EPA interpreted the phrase "potential
to emit" by referring to a source's "uncontrolled emissions," (i.e., the
projected emissions from the source operating at full capacity without
pollution controls). ( 40 C.F.R. Sections 51.24(b)(3) and 51.21(b)(3)(
1978 ) ). The U.S. Court of Appeals for the District of Columbia Circuit
invalidated that definition in Alabama Power Co., et al. v. Costle, 636 F.2d
323 ( D.C. Cir. 1979 ). The court ruled that an emitting facility is
"major" only if:
o It actually emits the specified annual tonnage of any air pollutant;
o It has the potential to emit, when operating at full design
capacity, the statutory amount of any air pollutant.
The design capacity calculation must account for the anticipated functioning
of the air pollution control equipment designed into the facility. Any
physical or operational limitations on the capacity to emit a pollutant,
including control equipment and restrictions on hours of operation, are
treated as part of the design capacity only if the limitation is federally
enforceable. ( 40 C.F.R. Section 52.21(b)(4) ( 1983 ) ). For example, a
boiler whose uncontrolled emissions are 115 tons of SO2 per year but which
has been designed to meet a federally enforceable limit of 90 tons per year
of SO2 would not be subject to PSD because it would only have the potential
to emit 90 tons per year of SO2.
If an emitting facility is "major" for one pollutant, the BACT requirements
also apply to "each pollutant subject to regulation" under the Act.
(Section 165(a)(4)). For example, a sulfuric acid plant with the potential
to emit 200 tons of SO2 per year with controls operating is subject to PSD
for SO2 (assuming the other elements of applicability set forth below are
are also present). In addition, the plant is also subject to the BACT
requirement for each criteria pollutant, any NESHAP pollutants, and any
pollutant designated under Section 111(d) that it emits in significant
Potential To Emit 100 Tons Per Year: The 27 Source Categories
o Fossil fuel-fired steam electric plants of more than 250 million
Btu's per hour of heat input
o Coal cleaning plants ( thermal dryers )
o Kraft pulp mills
o Portland cement plants
o Primary zinc smelters
o Iron and steel mill plants
o Primary aluminum ore reduction plants
o Primary copper smelters
o Municipal incinerators capable of charging more than 250 tons of
refuse per day
o Hydrofluoric, sulfuric, and nitric acid plants
o Petroleum refineries
o Lime plants
o Phosphate rock processing plants
o Coke oven batteries
o Sulfur recovery plants
o Carbon black plants ( furnace process )
o Primary lead smelters
o Fuel conversion plants
o Sintering plants
o Secondary metal production plants
o Chemical process plants
o Fossil fuel boilers of more than 250 Btu's per hour heat input
o Petroleum storage and transfer facilities with a capacity greater
than 300,000 barrels
o Taconite ore processing plants
o Charcoal production plants
"Commenced" is defined at 40 C.F.R. Section 52.21(b)(9) as meaning that the
owner or operator has:
o Obtained all necessary preconstruction approvals and permits; and
o Begun or caused to begin, a continuous program of actual on-site
construction of the source to be completed within a reasonable time
or, has entered into binding agreements or contractual obligations
to undertake a continuous program of actual on-site construction of
the source within a reasonable time. The binding agreements or
contractual obligations must be such that cancellation or
"modification" cannot be done without substantial loss to the owner
"Construction" is defined at 40 C.F.R. Section 52.21(b)(8) as meaning "any
physical change or change in the method of operation (including fabrication,
erection, installation, demolition, or modification of an emissions unit)
that would result in a change in actual emissions." Construction also
includes "modifications" as defined in the regulations at 40 C.F.R. Section
"After" August 7, 1977, is the established cut-off date for PSD
applicability because that is the effective date of the 1977 Amendments to
the Clean Air Act. In the case of a facility on which construction was
commenced after June 1, 1975, and prior to the enactment of the 1977
Amendments, the PSD regulations in effect prior to the 1977 Amendments
apply. ( Section 162(b) ).
Finally, a PSD permit is required of owners or operators of major emitting
facilities whose construction or modification commenced after August 7,
1977, in an area to which PSD applies. PSD applies in areas designated
under Sections 107(d)(1)(D) and 107(d)(1)(E), the "unclassifiable" and
"attainment" areas, respectively.
Part D: Plan Requirements for Nonattainment Areas ( Sections 171-178 )
An AQCR is a "nonattainment area" if, for any pollutant, monitored data or
air quality modeling shows concentrations of the pollutant in excess of any
NAAQS. "Nonattainment area" also includes any area designated under Section
107(d)(1)(A) through (C). Part D evinces the congressional intent that
these "dirty air" areas be improved to achieve the NAAQS. The 1977
Amendments required that SIPs accomplish the cleanup "as expeditiously as
practicable, but, in the case of national primary ambient air quality
standards, not later than December 31, 1982." ( Section 172(a)(1) ). The
attainment date for photochemical oxidants and carbon monoxide can be as
late as December 31, 1987, for those areas where the state demonstrated
prior to December 31, 1982, that attainment by that date was not possible
"despite the implementation of all reasonably available measures." (
Section 172(b) ).
The following provisions are basic elements of a fully approvable Part D
o As in the case of all other SIP requirements, the state must adopt
the Part D regulations after reasonable notice and public hearing.
If the state fails to do so, the Administrator may invoke Section
110(c) and promulgate the Part D regulations for the state;
o The plan must provide for the implementation of all reasonably
available control measures as expeditiously as practicable;
o In the interim before attainment, the plan must require "reasonable
further progress," which is defined as "annual incremental
reductions in emissions * * * (including substantial reductions in
the early years following approval ( of the Part D plan ) and
regular reductions thereafter) which are sufficient to provide for
attainment ( by December 31, 1982, or December 31, 1987, as
applicable )." The interim requirements include adoption of
reasonably available control technology ( RACT ) on existing
sources. RACT is defined at 40 C.F.R. Section 51.1(o);
o The plan must include a comprehensive, accurate, and current
inventory of actual emissions from all sources;
o The plan must quantify the emissions that will be allowed, if any,
from new and modified sources;
o The plan must establish a preconstruction review and permit program;
o Administration of the plan must be funded and staffed;
o The plan must contain emission limitations, schedules of compliance,
and such other measures as may be necessary to carry out the plan's
requirements. The terms "emission limitations" and "schedule of
compliance" are defined at Sections 302(k) and 302(p), respectively;
o The plan must evidence the planning procedures required by Section
174. In addition, the plan must include an analysis of air quality,
health, welfare, economic, energy, and social effects of the plan;
alternatives to the plan; and a summary of public comments on the
o The plan must include written evidence of the existence of legal
authority in state law to carry out the plan; and,
o For areas where the attainment date for carbon monoxide and
photochemical oxidants is December 31, 1987, the plan must establish
a program to analyze alternative siting of new sources, a specific
schedule to implement motor vehicle emission inspections, and an
identification of other necessary measures to achieve attainment.
Part D Permits
Any "major stationary source," as the term is defined by Section 302(j),
proposed to be constructed or modified in a nonattainment area must obtain a
construction and operation permit meeting the requirements of Section 173.
A new source/nonattainment permit may be issued only if all of the following
conditions are met:
o At the time the proposed new source is to begin operating, the total
allowable emissions from all existing sources in the area including
the proposed source will be "sufficiently less" than total emissions
from existing sources allowed under the applicable plan prior to the
permit application. (The term "sufficiently less" means emission
reductions that, when considered together with other plan
provisions, would constitute "reasonable further progress.")
o Emissions from the proposed new or modified source will not cause or
contribute to concentrations in excess of the allowable
concentration of the pollutant permitted of new and modified sources
under the Part D plan.
o The proposed source is subject to the "lowest achievable emission
rate" ( LAER ). LAER is defined at 40 C.F.R. Section
51.18(j)(xiii). ( Section 178 requires the Administrator to publish
guidance documents to assist states in implementing LAER
o The owner or operator of the proposed source demonstrates that all
major sources owned or operated by him or her in the state are in
compliance with all applicable emission limitations and standards,
or on a compliance schedule to do so.
o The Part D plan is being carried out.
o The emission reductions required as a precondition to the issuance
of the permit are legally binding.
Unlike the case of Part C permits, only states issue the Part D permits.
Technically, if the Administrator invoked Section 110(c) and subsequently
promulgated the Part D plan for a state, EPA could be the permitting
authority. However, EPA has not taken this approach to deficient Part D
Instead, EPA has taken the position that the construction ban on new and
modified sources contemplated by Section 110(a)(2)(I) operates.
Other Elements of Part D
For carbon monoxide and photochemical oxidant nonattainment areas, Section
174 requires that state and local government agencies divide up the
responsibilities for planning and enforcing measures to achieve attainment.
The preparation of the Part D plan for these areas must be coordinated with
the continuing, cooperative, and comprehensive transportation planning
process contemplated by 23 U.S.C. Section 134 and the air quality
maintenance planning process required by Section 110 of the Clean Air Act.
Section 175 authorizes grants to assist organizations responsible for the
Ban on Federal Grants and Assistance
Finally, Section 176 prohibits the availability of any grants or other
federal assistance, except for safety, mass transit, or air quality
improvement transportation projects if:
o Any NAAQS is not being met in an area where transportation controls
are required for attainment; and
o The state has not submitted a plan that meets all of the
requirements of Part D.
Definitions of "Major Stationary Source"
Persons proposing to construct a new major stationary source or to modify an
existing major stationary source must obtain a permit prior to construction
or modification, and a permit may be granted only to major sources that
commit to use advanced technology to achieve the lowest achievable emission
rate in nonattainment areas, or the best available control technology under
the PSD requirements. Because these requirements apply only to major
stationary sources, there has been extensive litigation over the definition
of "major stationary source."
Section 111, which requires EPA to establish standards of performance for
certain categories of new sources, contains this definition: "The term
'stationary source' means any building, structure, facility, or installation
which emits or may emit any air pollutant." Because Section 111(a) prefaces
the definitions with the phrase, "For purposes of this section," it can be
argued that its definition may not apply under Part C or Part D. The
general definitions section contains this definition at 302(j):
Except as otherwise expressly provided, the terms
"major stationary source" and "major emitting facility"
mean any stationary facility or source of air
pollutants which directly emits, or has the potential
to emit, one hundred tons per year or more of any air
Because Part D does not provide another definition, for the purpose of Part
D a "major stationary source" is a facility or source that has the potential
to emit 100 tons or more. Part C, Section 169, defines the term, "major
emitting facility," to mean certain listed categories of stationary sources
that "emit, or have the potential to emit, one hundred tons per year or more
of any air pollutant" and "any other source with the potential to emit two
hundred and fifty tons per year or more of any air pollutant."
Therefore, determining whether a new industrial project or piece of
equipment is a "major stationary source" that is subject to new source
review requirements may depend first on whether the construction or
modification is occurring in an attainment area or a nonattainment area,
because different threshold amounts of pollutant may trigger the permit
Emissions Trading: "Bubbles and Banking"
When the process or equipment that is emitting pollutants is part of an
industrial plant, the question arises whether each piece of equipment or
process in the plant is a separate stationary source or whether all
equipment or processes taken together are one stationary source. The
definition found in Section 111(a) seems to permit a good deal of
flexibility. EPA has tried to use this flexibility to encourage plant
managers to bring industrial plants into compliance by reducing pollutant
emissions throughout an industrial plant with the most cost-effective
In order to achieve and maintain the NAAQS, states establish emission
limitations for individual sources (called "source-specific standards") and
uniform emission limitations for categories of sources. The cost of
emissions controls varies widely depending on the type of industrial
process, its age, and its physical configuration or design. In some cases,
a relatively low cost pollution control program can yield as great or
greater emissions reductions as a higher priced pollution control program.
In fact, pollution control costs for adjacent processes can vary by as much
as 100 to 1 while yielding the same air quality benefits.
In recognition of the cost disparities associated with equivalent emission
reductions, EPA issued the "Emissions Trading Policy" ( 44 Fed. Reg. 71,779,
December 11, 1979, as superseded by 47 Fed. Reg. 15,076, April 7, 1982,
which was superceded by 51 Fed. Reg. 43814, December 5, 1986 ). The policy
consists of the "bubble policy" and the "banking policy."
The "bubble policy" provides sources and states with the flexibility to
implement alternative control strategies to those currently mandated by the
SIP. The "bubble" allows plant managers to construct an imaginary dome
(hence the term "bubble") over the entire plant and to rearrange control
requirements, decreasing controls where control costs are high in exchange
for compensating increased controls where costs are low. An offshoot of
such a policy, called "netting out," allows sources to avoid the application
of certain requirements in certain situations if the modification of a
facility in total does not result in higher emissions.
A firm may implement the bubble at its facility by applying to the state for
a revision to the SIP. As in the case of any SIP revision, the state must
submit it to EPA for approval before it is legally effective.
Alternatively, a state may have a "generic rule" approved by EPA that
permits certain types of bubbles for certain classes of pollutants to be
effective without case-by-case EPA approval.
Generally speaking, a bubble must satisfy the following requirements:
o The emissions reductions under the alternative approach must be
quantifiable and enforceable, and the impact of the trade on ambient
air quality must be shown to be equivalent to existing requirements.
Depending on differences in location, method of discharge, and other
considerations, monitoring and/or modeling may sometimes be required
to establish this equivalence.
o The surplus reductions used in a bubble must be sufficiently
reliable and measurable to be permanent. Strategies incorporating
uncertain control techniques or reductions may need a greater than
1-to-1 ratio of reduction to relaxation to provide this certainty.
o Bubbles must involve comparable pollutants (i.e., carbon monoxide
reductions cannot be traded against particulate matter increases).
In Alabama Power, et al. v. Costle, 636 F.2d 323 ( D.C. Cir. 1979 ), the
court held that EPA could employ the bubble concept to the definition of
major source in PSD areas. The court held that a source could avoid
application of the PSD requirements if any increase in emissions from a
modification of the source was offset by a decrease in emissions elsewhere
at the source. Earlier, the same court had held, in ASARCO, Inc. v. EPA,
578 F.2d 319 ( D.C. Cir. 1978 ), that this sort of netting out could not be
used by sources that would otherwise be subject to NSPS requirements.
Finally, in Chevron USA v. NRDC, Inc., 104 S. Ct. 2778 ( 1984 ), the Supreme
Court upheld EPA's proposal that, for nonattainment areas, the word "source"
could mean a grouping of smaller facilities. Such a definition could affect
the result of the ASARCO decision.
"Banking" is an expansion of the bubble policy that allows bubbles between
different plants. Under the banking policy, a source that reduces its
emissions below applicable emissions limitations obtains an emission
reduction credit ( ERC ) that is registered or "banked" in a central
The stored ERC is available for subsequent use by the holder for a bubble at
its own plant, to establish an offset to acquire a Part D permit, or to sell
to another firm that may use the ERC for similar purposes.
Standards of Performance for New Stationary Sources ( Section 111 )
The New Source Performance Standards ( NSPS ) is a regulatory program
distinct from the regulatory programs established by SIPs. Whereas SIP
requirements vary from state to state, the NSPS apply uniformly from state
to state, regardless of the air quality associated with the location. The
NSPS is a federal program administered by EPA, although most states have
been delegated EPA's authority.
The designers of the 1970 Clean Air Act Amendments recognized several
factors that underlie the NSPS program. First, Congress recognized that
pollution control is typically less costly and more efficient if the
controls are part of original facility designs rather than retrofitted to
existing facilities. As older industrial facilities are phased out and
replaced by new facilities, the more efficient control technologies
associated with the new growth would provide a net air quality benefit over
time. Of course, gaining this net air quality benefit is the ultimate goal
of the Clean Air Act.
Congress also recognized that efficient air pollution controls are costly
items, even when designed into the original facility. Consequently,
industries would be tempted to locate in areas that require the least costly
pollution investments. Each state would have an incentive to establish less
stringent requirements than competing states to be more attractive as a
location for new industry.
Tackling both problems at once, Congress required uniform technology-based"
standards establishing emission limitations reflecting the best
technological system of emission reduction adequately demonstrated. "Best
demonstrated technology" provides the net air quality benefit eventually,
and uniformity avoids competition for new industries among states.
Promulgation of NSPS
The NSPS are all codified at 40 C.F.R. Part 60. NSPS are promulgated in
accordance with the rulemaking provisions of Section 307(d). Essentially the
rulemaking is of the "notice and comment" variety wherein the Agency:
o Publishes notice of proposed rulemaking ( including a statement of
basis and purpose ) and establishes a public docket;
o Receives written comments from the public;
o Receives oral testimony from the public;
o Provides a 30-day period following the close of the basic public
comment period to receive rebuttal or supplementary information; and
o Promulgates the rule on the basis of information or data contained
in the public docket only.
The standards "reflect the degree of emission reduction achievable through
application of the best technological system of continuous emission
reduction which (taking into consideration the cost of achieving such
emission reduction, any nonair quality health and environmental impact and
requirements) the Administrator determines has been adequately
demonstrated." ( Section 111(a)(1) ). For fossil fuel-fired stationary
sources governed by 40 C.F.R. Part 60, Subpart Da, the standards must
require a "percentage reduction" in emissions achievable through application
of the best technological system of emission reduction.
The NSPS is usually expressed as a mass emission limitation ( e.g., 1.2
pounds of SO2 per 1 million BTU heat input ). Particulate matter (which is
visible to the naked eye) may also be regulated by an opacity standard.
Opacity, or visible emissions ( VE ), standards limit the amount of light
that can be obscured by a plume of smoke ( e.g., the standard may prohibit
any emissions in excess of 20 percent average opacity ). See 40 C.F.R. Part
60, Appendix A, Reference Method 9, which establishes how opacity is
EPA regulations at 40 C.F.R. Section 60.5 provide that a source owner or
operator may request a determination from the Administrator of whether
construction or modification of a facility triggers the applicability of the
NSPS. The following analysis is applied:
o Was "construction," "reconstruction," or "modification" of
o the "affected facility"
o after the "applicability date" of
o the applicable "standard of performance"?
If the answer to each point is affirmative, then the source is "new" and
subject to the NSPS.
Each phrase of the applicability analysis is defined either in the statute
or the regulations at 40 C.F.R. Part 60. Each is a term of art and may
carry a meaning that one would not intuitively expect.
o "Construction" means fabrication, erection, or installation of an
affected facility. ( 40 C.F.R. Section 60.2 ).
o "Reconstruction" means the replacement of components of an existing
facility to such an extent that:
-- The fixed capital cost of the new components exceeds 50 percent
of the fixed capital cost that would be required to construct a
comparable entirely new facility, and
-- It is technologically and economically feasible to meet the
applicable standards set forth in Part 60. ( 40 C.F.R. Section
o "Modification" means any physical change in, or change in the method
of operation of, an existing facility that increases the amount of
any air pollutant (to which a standard applies) emitted into the
atmosphere by that facility or that results in the emission of any
air pollutant (to which a standard applies) into the atmosphere not
previously emitted. ( 40 C.F.R. Section 60.2 ). Sections 60.14(e)
and 60.14(f) of 40 C.F.R. specifically exempt certain "changes" from
being considered modifications.
o "Affected facility" means any apparatus to which a standard applies.
( 40 C.F.R. Section 60.2 ). In order to determine which "apparatus"
is involved, one must refer to each specific subpart. For example,
Subpart D applies to fossil fuel-fired steam-generating units of
certain size. That term is further defined as meaning a "furnace or
boiler." Thus, if a power plant owner inquired of the Agency
whether a change in the location or size of its coal
material-handling equipment subjected the plant to Subpart D, the
answer would be negative because Subpart D does not apply to the
material-handling "apparatus." However, material-handling equipment
may be apparatus to which a standard applies under a different
subpart such as Subpart Y, which regulates coal preparation plants.
( Compare 40 C.F.R. Sections 60.40 and 60.41 with 40 C.F.R.
Section 60.250 ).
o "Commenced" means that an owner or operator has undertaken a
continuous program of construction or modification or that an owner
or operator has entered into a contractual obligation to undertake
and complete, within a reasonable time, a continuous program of
construction or modification. ( 40 C.F.R. Section 60.2 ).
o The "applicability date" is defined by the statute as "the
publication of regulations (or, if earlier, proposed regulations)
prescribing a standard of performance * * * applicable to the
source." ( Section 111(a)(2) ). One can determine the "effective
date" for each standard simply by referring to the appropriate
subpart. The term is important because any construction, etc., that
had begun prior to that date designates the source as an "existing
facility" and thus, not regulated by NSPS.
o "Standard of performance" means a standard that establishes
allowable emission limitations for any pollutant emitted from the
regulated facility. ( Section 111(a)(1) ). It also means "a
requirement of continuous emission reduction, including any
requirement relating to the operation or maintenance of a source to
assure continuous emission reduction. ( Section 302(1) ).
Construction or modification of an affected facility that
commences after the effective date of the NSPS will not subject the
facility to the NSPS unless it causes an increase in an air
pollutant for which the NSPS has established a standard of
performance. For example, a
modification to a steam generator that increases emissions of carbon
monoxide would not alone subject the plant to Subpart D because that
subpart regulates only particulates, SO2, and NOx.
As of June 1, 1986, EPA had promulgated NSPSs for the following 56 source
Category Applicability Date
Fossil Fuel-Fired Steam Generators August 17, 1971
Incinerators August 17, 1971
Portland Cement Plants August 17, 1971
Nitric Acid Plants August 17, 1971
Sulfuric Acid Plants August 17, 1971
Asphalt Concrete Plants June 11, 1973
Petroleum Refineries June 11, 1973 or
October 4, 1976
Petroleum Storage Vessels June 11, 1973 or
March 8, 1974
and prior to
May 19, 1978
Secondary Lead Smelters June 11, 1973
Secondary Brass and Bronze Ingot
Production Plants June 11, 1973
Basic Oxygen Furnaces ( Iron and Steel ) June 11, 1973
Sewage Treatment Plants June 11, 1973
Primary Aluminum Reduction Plants October 23, 1974
Wet-Process Phosphoric Acid Plants October 22, 1974
Superphosphoric Acid Plants October 22, 1974
Diammonium Phosphate Plants October 22, 1974
Triple Superphosphate Plants October 22, 1974
Granular Triple Superphosphate Storage Facilities October 22, 1974
Electric Arc Furnaces October 21, 1974
Primary Copper Smelters October 16, 1974
Primary Zinc Smelters October 16, 1974
Primary Lead Smelters October 16, 1974
Coal Preparation Plants October 24, 1974
Ferroalloy Production Facilities October 21, 1974
Kraft Pulp Mills September 24, 1976
Grain Elevators January 13, 1977
Lime Manufacturing Plants May 3, 1977
Utility Steam Generators September 18, 1978
Stationary Gas Turbines October 3, 1977
Petroleum Storage Vessels May 18, 1978
Glass Manufacturing Plants June 15, 1979
Auto and Light-Duty Truck Surface Coating October 5, 1979
Ammonium Sulfate Manufacturing February 4, 1980
Lead Acid Battery Manufacturing January 14, 1980
Phosphate Rock Plants September 21, 1979
Metal Furniture Surface Coating November 28, 1980
Graphic Arts: Rotogravure Printing October 28, 1980
Surface Coating of Large Appliances December 24, 1980
Metal Coil Surface Coating January 5, 1981
Asphalt Roofing Manufacture November 18, 1980
or May 26, 1981
Beverage Can Surface Coating November 26, 1980
Bulk Gasoline Terminals December 17, 1980
Equipment Leaks of VOC in the Synthetic
Organic Chemical Manufacturing January 5, 1981
Pressure-Sensitive Tapes and Labels December 30, 1980
Metallic Mineral Processing Plants August 24, 1982
Flexible Vinyl and Eurethane Coating
and Printing January 18, 1983
Equipment Leaks of VOC in Petroleum
Refineries January 4, 1983
Synthetic Fiber Production Facilities November 23, 1982
Petroleum Dry Cleaners December 14, 1982
Equipment Leaks of VOC from Onshore
Natural Gas Processing Plants January 20, 1984
Wool Fiberglass Insulation
Manufacturing Plants February 7, 1984
Non-Metallic Mineral Processing August 1, 1985
The regulation at 40 C.F.R. Section 60.11(a) provides as follows:
Compliance with standards in this part, other than
opacity standards, shall be determined only by
performance tests established by Section 60.8, unless
otherwise specified in the applicable standard.
Section 60.8 requires that, within 60 days after achieving the maximum
production rate at which the affected facility will operate but not later
than 180 days after initial startup of such facility, the owner or operator
must conduct a performance test and furnish to the Administrator a written
result report. The Administrator may also require performance tests at any
The purpose of the initial performance test is to determine whether the
source is operating in compliance with the NSPS. The 60-days/180-days rule
does not establish a grace period, per se, for noncompliance. ( See 40
C.F.R. Section 60.11(d) ).
Determination of Compliance
EPA can determine whether a source is in compliance with the NSPS emission
limitation only in accordance with the appropriate performance test codified
in Appendix A to Part 60. ( 40 C.F.R. Section 60.11(a) ). Performance
tests are to be conducted under conditions that are representative of the
performance of the affected facility. Periods of startup, shutdown, and
malfunction are not to be considered representative for the purpose of
performance tests and emissions in excess of the emission limit in the
applicable standard during periods of startup, shutdown, or malfunction are
not generally a violation of the emissions standards. ( 40 C.F.R. Section
60.8(c) ). EPA has generally taken the position that performance tests
shall be conducted during operation of a facility at or near maximum design
capacity. EPA cannot conduct frequent performance tests due to the large
number of sources subject to NSPS and the cost and time associated with
If a new source that is subject to an NSPS has never conducted a performance
test, EPA or the state agency should issue an order under Section 114
requiring the source to do so. When a new source that is subject to the
NSPS has not installed the necessary pollution control equipment and EPA or
a state agency wishes to bring an enforcement action under Section 113 or
Section 120 against the owner, EPA or the state agency should first issue an
order to the owner under Section 114 to conduct the initial performance test
required by Section 60.8. This is because performance test results are the
only admissible evidence of a violation of an NSPS emission limit. If a new
source owner refuses to conduct the required performance test, EPA can bring
a civil action under Section 113 for a violation of a Section 114 order.
In United States v. Segale, No. CR84-73T ( W.D. Wash. Mar. 11, 1985 ), a
district court dismissed a criminal indictment for violation of the NSPS
particulate standard for new asphalt concrete plants, 40 C.F.R. Section
60.92, because the indictment did not allege that the performance test
required by Section 60.8 had been conducted. The indictment was based on
particulate emissions that violated the 20 percent opacity standard. The
court construed Section 60.92(a) as requiring a performance test as a
prerequisite of a violation. Section 60.92(a) states the following:
On or after the date on which the performance test
required to be conducted by Section 60.8 is completed, no
owner or operator subject to the provisions of this
subpart shall discharge or cause the discharge into the
atmosphere from any affected facility any gases
(2) Exhibit 20 percent opacity, or greater....
To fill in the gaps resulting from the performance test rules, 40 C.F.R.
Section 60.11(d) requires:
At all times, including periods of startup, shutdown,
and malfunction, owners and operators shall, to the
extent practicable, maintain and operate any affected
facility including associated air pollution control
equipment in a manner consistent with good air
pollution control practice for minimizing emissions.
Determination of whether operation and maintenance ( O/M ) procedures are
acceptable may be based on information available to the Administrator that
may include, at a minimum, monitoring results, opacity observations, review
of O/M procedures, and inspection of the source. ( 40 C.F.R. Section
Other NSPS Program Elements
Notification and Recordkeeping ( 40 C.F.R. Section 60.7 ). Owners and
operators of NSPS sources are required to furnish written notification
(within certain time periods and with certain exceptions) of:
o The date construction or reconstruction of an affected facility is
o The date of anticipated initial startup;
o The date of actual initial startup;
o Any physical or operational change to an existing facility that may
increase the emission rate of any pollutant to which a standard
o The date upon which the demonstration of the continuous emission
monitor ( CEM ) will be commenced.
Owners and operators must maintain records of the occurrence and duration of
any startup, shutdown, or malfunction in the operation of any affected
facility, any malfunction of the CEM, and the period during which the system
or device is inoperative. An owner or operator must maintain for at least
two years all measurements ( CEM and performance test ), all CEM
evaluations, calibrations, adjustments, and maintenance, and such other
information as may be required by regulation. Owners and operators required
to install CEM must submit quarterly excess emission reports whether or not
there have been any excess emissions during that quarter.
Monitoring. Section 114 authorizes the Agency to require continuous
emission monitoring ( CEM ). Many NSPSs require the installation,
calibration, maintenance, and operation of CEM equipment systems.
"Continuous monitoring system" is defined as meaning the "total equipment,
required under the emission monitoring sections in applicable subparts, used
to sample and condition (if applicable), to analyze, and to provide a
permanent record of emissions or process parameters." ( 40 C.F.R. Section
60.2 ). Prior to the performance tests required by 40 C.F.R. Section 60.8,
the monitors must be installed and operational ( 40 C.F.R. Section 60.13(b)
), such that representative measurements of emissions or process parameters
are obtained during the initial performance tests ( 40 C.F.R. Sections 13(c)
and 60.13(f) ).
Except for system breakdowns, repairs, calibration checks, and zero and span
adjustments, the CEM must be in continuous operation and meet the minimum
frequency of operation requirements codified at 40 C.F.R. Section 60.13(e).
Owners and operators must evaluate the performance of the CEM
frequently ( see 40 C.F.R. Section 60.13(c) ), and adjust the calibration
daily or at shorter intervals. ( 40 C.F.R. 60.13(d) ). Technical
specifications are codified at 40 C.F.R. Part 60, Subpart B.
It is important to be aware of whether the CEM requirement in a particular
subpart is the designated compliance test method or is only a means of
monitoring the operation and maintenance of a source. If the CEM is the
designated compliance test method, the data can be used as evidence in a
court action to enforce the emission limitation. If the CEM is not the
designated compliance test method, the data cannot be used as evidence of a
violation of the emission limitation but may be evidence of a violation of
40 C.F.R. Section 60.11(d). CEMs are the compliance test method in Subparts
Da ( covering new electric steam generators ), P, Q, and R ( covering new
nonferrous smelters ).
Section 111 and "Bubbles." In 1978, the D.C. Circuit stated that ( with
regard to NSPS ) "any version of the bubble concept is incompatible with the
language of the Act and contrary to its purpose...." Asarco, Inc. v. EPA,
578 F.2d 319, 329 ( D.C. Cir. 1978 ), (emphasis provided by the court). In
Asarco, EPA had promulgated a regulation defining "stationary source" as:
Any building, structure, facility or installation which
emits or may emit any air pollutant and which contains any
one or combination of the following: (1) Affected
facilities (2) Existing facilities. (3) Facilities of the
type for which no standards have been promulgated in this
part. 40 C.F.R. Section 60.2(d)( 1976 ).
The court pointed out that the regulations "instead of limiting the
definition of 'stationary source' to one 'facility' as the statute does,
make it cover 'any one or combination of' facilities." 578 F. 2d 319, 324
( D.C. Cir. 1978 ). Since Section 111(a)(3) defines a source as "any
building, structure, facility, or installation which emits or may emit any
air pollutant" as distinguished from any one or combination of facilities
such as plant, the court rejected application of a bubble concept to NSPS.
However, in a footnote, the court noted that it accepted EPA's definition of
"facility" as "any apparatus to which a standard of performance is
specifically applicable." Importantly, the court noted:
This definition is clearly designed to designate as
"facilities" those units of equipment -- be they
individual machines, combinations of machines, or even
entire plants -- that the Agency finds to be
appropriate units for separate emission standards....
In designating what will constitute a facility in each
particular industrial context, EPA is guided by a
reasoned application of the terms of the statute it is
charged to enforce, not by an abstract 'dictionary'
definition. This court would not remove this
appropriate exercise of the Agency's discretion. 578
F.2d 319, 324 n. 17 ( D.C. Cir. 1978 ).
Judicial Review of NSPS Regulations and Applicability Determinations.
Section 307(b)(1) provides for review of a newly promulgated NSPS
exclusively in the United States Court of Appeals for the District of
Columbia Circuit. ( Section 307(b) establishes the D.C. Circuit as the
exclusive jurisdiction for challenge to any nationally applicable Clean Air
Act regulation ). Challenges must be filed with the court within 60 days
from the date of publication of the rule in the Federal Register. After the
60 days expire, no challenge to the NSPS itself is permissible, unless the
challenge is based upon grounds arising solely after the 60-day period
expired. In such a case, the 60-day period begins to run from the date such
The 60-day limitation on challenges to newly promulgated NSPS regulations is
important. If a source fails to comply with the NSPS, EPA may seek
enforcement of the NSPS in the federal district court. The 60-day
limitation operates to preclude the source from challenging the basis for
the NSPS during the enforcement action. In other words, the court in the
enforcement action will focus on the question of whether or not the source
is violating the standard, but will not entertain any questions pertaining
to how the standard was established. ( See Section 307(b)(2) ).
Applicability determinations, which are source specific as opposed to
nationally applicable, are reviewable in the United States Court of Appeals
for the Circuit in which the source is located. That point was settled by
the Supreme Court in the case of Harrison v. PPG Industries, 446 U. S. 578
( 1980 ). The Supreme Court ruled that the applicability determination in
that case was a "final agency action" and, therefore, was reviewable
pursuant to Section 307(b).
That ruling is important because the 60-day limitation on filing challenges
consequently applies to applicability determinations as well as to the
promulgation of the nationally applicable NSPS. Thus, the source also
cannot challenge the applicability of the standard when EPA seeks to enforce
it, provided that an applicability determination had been made and published
in the Federal Register.
In Caterpillar Tractor Company v. Adamkus, et al., No. 83-1083 ( C.D. Ill.,
May 23, 1985 ), Caterpillar sought a declaratory judgment that the NSPS for
fossil-fuel-fired steam generators did not apply to two of its new boilers.
EPA filed a counterclaim to enforce the NSPS and obtained a summary judgment
that the company had violated the standard. The NSPS applies to boilers
that have a heat input capacity of more than 250 million Btu per hour.
Caterpillar argued that, although its boilers had a design capacity of 294
million Btu per hour, the NSPS should apply only if its actual operating
levels exceeded 250 million Btu per hour. The district court agreed with
EPA's argument that the manufacturer-rated design operating capacity
determines whether the standard applies. Using the actual operating rate to
determine whether the standard applied would lead to the odd result of
having the source regulated only some of the time. Caterpillar also argued
that performance tests which it had conducted while operating at maximum
capacity under an EPA-prescribed test protocol were not valid evidence of
violations because operating at maximum capacity was
not "representative" of its normal operating conditions. The court held
that these performance tests, which showed excess emissions, did establish
Innovative Technology Waivers. Section 111(j) provides for the issuance of
one or more waivers from NSPS requirements in order to encourage the uses of
innovative technological systems or systems of continuous emissions
reduction. An innovative technology waiver may be issued after Federal
Register notice and opportunity for public hearing. The applicant must
demonstrate the following points:
1. The proposed system has not been adequately demonstrated;
2. The proposed system will operate effectively, and there is a
substantial likelihood that such system will achieve greater
continuous emission reduction than that required to be achieved
under the NSPS that would otherwise apply, or achieve at least an
equivalent reduction at lower cost in terms of energy, economic, or
nonair quality environmental impact;
3. The proposed source will not cause or contribute to an unreasonable
risk to public health, welfare, or safety in its operation,
function, or malfunction; and
4. The number of waivers will not be more than is necessary to
ascertain whether or not such system will achieve the conditions in
points 2 and 3 above.
An innovative technology waiver exempts the new source from the applicable
emission standards only for a limited period of time to allow the design and
installation of the innovative system. It must be terminated whenever the
Administrator determines that the innovative technological system that has
been installed has failed to achieve continuous emission reductions
equivalent to the emission standards; and it may not extend beyond the date
seven years after the waiver was granted or four years after the new source
or affected portion thereof commences operation, whichever is earlier. When
an innovative technology waiver is terminated, the Administrator must grant
an extension of time for compliance that is the minimum period necessary for
the source to be brought into compliance with the standard using
demonstrated technology (no more than three additional years).
Technology-based Regulation of Existing Sources. Section 111(d) authorizes
the Administrator to promulgate regulations requiring states to establish
technology-based standards of performance for existing sources of
"designated pollutants." In 1975, the Administrator promulgated regulations
that established a procedure under which states shall submit their plans for
standards of performance for existing sources of designated pollutants. (
40 C.F.R. Part 60, Subpart B ). "Designated pollutants" are pollutants for
which standards of performance have been established for new sources but for
which air quality criteria have not been issued under Section 108 and for
which there are no plans to issue air quality criteria or to publish
emission limits under Section 112 ( pertaining to hazardous air pollutants
These regulations provide that, for promulgation of an NSPS which includes a
standard of performance for a designated pollutant, the Administrator will
publish, after notice and comment, a final guideline document that will
contain an emission guideline and information pertinent to the development
of state plans for control of the designated pollutant. Within nine months
after the final guideline document has been published, each state is to
adopt and submit to the Administrator a state plan for the control of the
designated pollutant from the existing sources in that state. EPA has
published final emission guidelines for only one designated pollutant. In
1977, EPA published an emission guideline for sulfuric acid mist from
sulfuric acid production units. ( 40 C.F.R. Sections 60.32 through 60.34 ).
National Emission Standards for Hazardous Air Pollutants ( Section 112 )
The NAAQS discussed previously are aimed at pollutants that are known to
affect human health and welfare adversely when ambient concentrations are
excessive. Some pollutants, however, are more dangerous than the criteria
pollutants because even in relatively small concentrations they can be
"anticipated to result in an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness." ( Section 112(a)(1)
The 1970 Clean Air Amendments, therefore, required that the Administrator
first list hazardous air pollutants and then promulgate emission standards
governing their release into the atmosphere. In contrast to the primary
NAAQS, which are ambient standards established at levels that provide an
"adequate" margin of safety to protect the public health, the NESHAP are
emission standards established at levels that provide an "ample" margin of
safety to protect the public from the harmful consequences of the pollutant.
EPA has established NESHAPs for the following pollutants:
o Radon-222 emissions from underground uranium mines ( 40 C.F.R. Part
61, Subpart B )
o Beryllium emissions from
- Beryllium processing facilities ( 40 C.F.R. Part 61, Subpart C ),
- Rocket Motor Test Sites ( 40 C.F.R. Part 61, Subpart D )
o Mercury ( 40 C.F.R. Part 61, Subpart E )
o Vinyl Chloride ( 40 C.F.R. Part 61, Subpart F )
o Radionuclide emissions from
- Department of Energy facilities ( 40 C.F.R. Part 61, Subpart H )
- Facilities licensed by the Nuclear Regulatory Commission and
non-DOE federal facilities ( 40 C.F.R. Part 61, Subpart I )
- Elemental phosphorous plants ( 40 C.F.R. Part 61, Subpart K )
o Benzene fugitive emissions ( 40 C.F.R. Part 61, Subpart J )
o Asbestos ( 40 C.F.R. Part 61, Subpart M )
o Inorganic arsenic emissions from
- Glass manufacturing plants ( 40 C.F.R. Part 61, Subpart N )
- Primary copper smelters ( 40 C.F.R. Part 61, Subpart O ), and
- Arsenic trioxide and metallic arsenic production facilities ( 40
C.F.R. Part 61, Subpart P )
o Volatile hazardous air pollutants (fugitive emissions) ( 40 C.F.R.
Part 61, Subpart V )
Effective Date. A NESHAP is effective upon promulgation.
Applicability of NESHAPs to Individual Sources
NESHAPs apply to "new," "modified," and "existing sources."
o New and Modified Sources. Section 112(c)(1)(A) prohibits any person
from constructing a new source or modifying an existing source
unless the Administrator finds that the source, if properly
operated, will not cause emissions in violation of the standard. In
order to obtain the Administrator's approval to construct or modify
a source to which a standard is applicable, the source owner or
operator is required to submit an application prior to commencement
of construction or modification. ( 40 C.F.R. Section 61.07 ). The
Administrator has 60 days to approve or deny the application. ( 40
C.F.R. Section 61.08 ). If the Administrator intends to deny the
application, the notification to the source must include the
information and findings underlying the decision and an invitation
for the source to present additional information or arguments for
approval. ( 40 C.F.R. Section 61.08(c) ). A final determination in
writing is rendered within 60 days of presentation of (or due date
for) the additional information. ( 40 C.F.R. Section 61.08(d) ).
o Existing Sources. Section 112(c)(1)(B) prohibits emissions in
excess of the NESHAP from existing sources. Existing sources are
required to comply with the NESHAP 90 days after the effective date
of the standard, unless a waiver has been obtained. Waivers are
permitted for up to two years and may be granted if the
Administrator finds that the source requires a period longer than 90
days to install controls and that steps will be taken during the
period of the waiver to assure the protection of human health from
imminent endangerment. The procedures for review and determination
of waiver requests are established at 40 C.F.R. Sections 61.10 and
Exemptions. Any source may be exempted from NESHAP compliance for a period
of up to two years (which period may be extended one or more times) if the
President determines that the:
o Technology to implement the standard is not available; and
o Operation of the source is required for reasons of national
Regulation of Work Practices Under Section 112
The 1977 Amendments added a new Subsection (e) to Section 112 expressly to
permit EPA to promulgate standards for design, equipment, and operational or
work practices, or combinations thereof, if the Administrator determines
that it is not feasible to prescribe or enforce an emission standard for
control of the hazardous pollutant. Prior to the 1977 Amendments, the Act
permitted regulation of NESHAPs by emission standards only. Emissions
standards did not include work practices. See Adamo Wrecking Co. v. United
States, 434 U.S. 275 ( 1978 ).
The infeasibility of prescribing a numerical emission standard can occur
o A hazardous pollutant or pollutants cannot be emitted through a
conveyance designed and constructed to emit or capture such a
o The application of measurement methodology to a particular class of
sources is not practicable due to technological or economic
If the Administrator promulgates a design, equipment, work practice, or
operational standard, a source may use an alternative means of emission
limitation if the source can establish to the satisfaction of the
Administrator that such alternative will achieve a reduction in emissions at
least equivalent to the reduction achieved under the promulgated standard.
( Section 112(e)(3) ).
Notification of Startup. If initial startup of a source is to occur after
the effective date of a NESHAP, the source owner or operator is required to
notify EPA in writing of the anticipated date of startup and the actual date
of startup. ( See 40 C.F.R. Section 61.09 ).
Determination of Compliance
Emissions tests and monitoring must be conducted and reported in accordance
with the requirements of 40 C.F.R. Sections 61.13 and 61.14 and Appendix B.
The owner or operator of a new source and, at the request of the
Administrator, the owner or operator of an existing NESHAP source must
provide the following:
o Sampling ports adequate for test methods that are applicable to the
o Safe sampling platforms;
o Safe access to sampling platforms;
o Utilities for sampling and testing equipment; and
o Any other facilities that the Administrator needs to test a
source safely and properly.
Judicial Review of NESHAPs. In accordance with Section 307(b)(1), a newly
promulgated NESHAPs is reviewable exclusively in the United States Court of
Appeals for the District of Columbia Circuit by filing a challenge within 60
days from the date of publication in the Federal Register of the promulgated
regulation. In an action taken by EPA to enforce the NESHAP, the source
cannot challenge the regulation itself but may challenge whether the
standard applies to the source or whether the standard is being violated.
Role of States in Section 112. If the Administrator finds that a state's
procedure is adequate for implementing and enforcing the NESHAPs program in
the state, the Administrator may delegate the authority to implement and
enforce this program. ( Section 112(d)(1) ). Even after delegating the
program, however, the Administrator retains the authority to enforce any
applicable emission standard.
Whether or not the NESHAPs program has been delegated, states may adopt and
enforce standards more stringent than federal standards and require owners
or operators to obtain permits, licenses, or other approvals prior to
initiating construction, modification, or operation of the source. ( 40
C.F.R. Section 61.17 ).
Federal Enforcement ( Sections 113 and 120 )
Clean Air Act regulations are enforced by the states or designated state
agencies, by the federal government, or both. Additionally, citizens may
enforce the Act in certain cases. ( See Chapter Eleven ).
States primarily enforce SIP regulations but may also enforce NSPS and
NESHAP regulations where EPA has delegated the federal responsibility to the
state. EPA can also enforce SIP regulations, as well as the NSPS and NESHAP
programs. This manual addresses in detail federal judicial enforcement in
Chapters Seven and Nine and federal administrative enforcement under Section
113 in Chapter Six.
Administrative Orders, Civil and Criminal Judicial Actions ( Section 113 )
Section 113 was first enacted in 1970 and was substantially amended in 1977.
The Steel Industry Compliance Extension Act of 1981 added a new Subsection
(e), which had limited applicability.
Viewed in an oversimplified form, Section 113(b) authorizes EPA to enforce a
host of regulations in the U.S. District Court for the district in which the
violation has occurred or in which the defendant resides or has his or her
principal place of business. Federal courts may order injunctive relief and
the payment of up to $25,000 per day of violation in civil penalties. Jail
terms and monetary penalties can be levied against persons convicted of
knowingly violating certain regulations.
Before invoking federal court jurisdiction to remedy SIP violations, EPA
must issue a Notice of Violation ( NOV ) to the source owner or operator.
If the violation continues for 30 days thereafter, a federal cause of action
ripens. Sometimes, the receipt of an NOV by a source owner or operator is
enough to prompt corrective action. ( See Chapter Six ).
Section 113 authorizes EPA to issue an administrative order to remedy
certain violations. This enforcement tool usually requires corrective
action by the source owner or operator that is relatively easy to
accomplish. Usually, the violation, or underlying cause of the violation,
remedied by a Section 113(a) order is associated with operation and
maintenance of control equipment or of the source itself. ( See Chapter
Section 113(d) provides rulemaking authority for EPA to issue delayed
compliance orders to qualifying sources. Delayed compliance orders are
discussed in Chapter Six. Detailed discussion of DCOs is available in the
Policy Compendium at Section 113, particulary Tab T.
Noncompliance Penalty ( Section 120 )
The 1977 Amendments added a potentially powerful enforcement tool to the
Act. The administratively assessed penalty recovers any economic benefit
accruing to the source from a delay in compliance. By penalizing violating
sources an amount that nullifies any economic benefit derived from delayed
compliance, it is believed that a strong financial incentive for
noncompliance can be eliminated.
When a source delays complying or does not continuously comply with
applicable standards, the source derives an economic benefit because the
capital commitment, or other expense, required for pollution control is
deferred. This deferred outlay, if invested in profit-making ventures by
the violating source, could provide the violating source with a competitive
advantage over law-abiding industry competitors. The potential for this
advantage is sometimes incentive enough for some sources to take a
"wait-and-see" approach to compliance.
The noncompliance penalty removes these advantages. With certain
exceptions, Section 120 permits the assessment and collection of penalties
o Major stationary sources not in compliance with an emission
limitation, emission standard, or compliance schedule under SIPs
whether or not the source is subject to a federal or state consent
o Any source in violation of an NSPS or NESHAP requirement; and
o Certain categories of sources failing to comply with the
requirements of an extension, order, or suspension granted pursuant
to specific variance provisions of the Act.
The noncompliance penalty program is implemented by regulations codified at
40 C.F.R. Part 66. The program is discussed in detail in Chapter Eight of
Inspections, Monitoring, and Entry ( Section 114 )
This section provides broad authority to EPA to gather information and
evidence for numerous purposes under the Act. Section 114 will be discussed
in more detail in Chapters Three, Four, and Eleven. Basically, Section 114
permits the Agency to "reasonably" require the owner or operator of any
emission source to:
o Establish and maintain records;
o Make reports;
o Install, use, and maintain monitoring equipment or methods;
o Sample emissions; and
o Provide other information.
Authorized representatives of the United States are empowered, upon
presentation of credentials and prior notification to the state air
pollution control agency, with the:
o Right of entry to, upon, or through any premises of source owners or
where records are located;
o Right of access, at reasonable times, to records (including the
right to copy them);
o Right to inspect monitoring equipment and methods; and
o Right to sample emissions.
Section 114 requires that any records, reports, or information shall be
available to the public except "upon a showing satisfactory to the
Administrator (that public availability) would divulge (trade secrets)." If
the Administrator so finds, the Agency must protect the confidential
business information in accordance with 18 U.S.C. Section 1905 and EPA's
regulations at 40 C.F.R. Part 2. ( See Chapter Eleven ).
National Ambient Air Quality Standards
Averaging Primary Secondary
Pollutant Time Standard Levels Standard Levels
Particulate b Annual (geometric 75 ug/m3 60 ug/m3
24 hrs a 260 ug/m3 150 ug/m3
Sulfur oxides Annual (arithmetic 80 ug/m3 --
mean (0.03 ppm)
24 hrs a 365 ug/m3 --
3 hrs a -- 1,300 ug/m3
Carbon* 8 hrs a 10 mg/m3
monoxide (9 ppm)
1 hr a 40 mg/m3
Nitrogen Annual (arithmetic 100 ug/m3 100 ug/m3
dioxide mean) (0.05 ppm) (0.05 ppm)
Ozone 1 hr a 240 ug/m3 240 ug/m3
(0.12 ppm) (0.12 ppm)
Lead 3 mos (arithmetic 1.5 ug/m3 1.5 ug/m3
* The secondary standard for carbon monoxide was revoked on September 13,
a Not to be exceeded more than once a year.
b EPA has proposed a revision of the particulate standard. At present,
primary and secondary NAAQS for particulates limit ambient levels of
particulates regardless of size. The new primary NAAQS will limit only
the smaller particulates (which are thought to be more likely to affect
Comparison of PSI Values, Pollutant Levels, and General Health Effects
(NOT AVAILABLE IN COMPUTERIZED TEXT)
CAA Compliance/Enforcement 1-236 Guidance Manual 1986
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