| ENVIRONMENTAL DESKBOOK 1998 |
| ENVIRONMENTAL LAWS AND REGULATIONS |
| THE
CLEAN AIR ACT 42 U.S.C. 7401-7671q; 40 C.F.R. Parts 50-88. |
The passage of the Clean Air Act Amendments of 1990 represented the most significant recent development in environmental legislation. Recognizing in 1977 that changes in the Clean Air Act were needed, Congress established the National Commission on Air Quality to evaluate and recommend changes to the statute. Led by Morgan Lewis partner Bill Lewis, the Commission proposed major changes to a number of provisions to streamline the complex law. After an intense and often acrimonious debate in the early 1980s, Congress focused its attention exclusively on amendments that would accelerate the targeting of high priority areas for further pollution control.
The 1990 amendments contain a seemingly unending list of features; indeed, seven separate titles cover different regulatory programs. The amendments create a new galaxy of regulatory requirements that will have the effect of reducing air pollution emissions by requiring the installation of more advanced pollution control equipment as well as mandating changes in industrial operations and community lifestyles.
In reviewing the amended Clean Air Act, we will briefly discuss the historical framework of the Act and four of its major programs nonattainment, air toxics, permits, and enforcement. We will also summarize the current status of EPA s efforts to implement those programs.
Until 1990, the entire national strategy to improve air quality was centered around the National Ambient Air Quality Standards (NAAQS) established under section 109. These standards were to be based on scientific determinations of the threshold levels of air pollution below which neither humans nor the environment would experience any adverse effects. EPA has established air quality standards for only a small number of the most common pollutants ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, particulates, and lead. See 40 C.F.R. Part 50.
In 1997, EPA promulgated final rules revising the NAAQSs for both ozone and particulates. The revisions will have far reaching consequences for numerous sources throughout the country. In particular, the new standards will substantially increase the number of nonattainment areas for both pollutants and require states to impose additional controls on sources. By the end of 1998, EPA is expected to finalize an implementation plan that will outline the approach for implementing the revised standards.
The Clean Air Act places most of the responsibility on the states to achieve compliance with the air quality standards. The primary vehicle for implementation is known as the State Implementation Plan or "SIP." In developing a SIP, each state is first divided into air quality control regions typically consisting of several counties or a metro area and surrounding counties. Then the state determines through statistical data whether and how much air pollution in each region exceeds the limits for each air quality standard. Control requirements are imposed to reduce emissions from the various sources in each area to achieve compliance.
To supplement the basic system of air quality standards and controls imposed (primarily on industrial facilities) through the SIPs, the Clean Air Act also includes a number of other important control efforts. The most significant of these applicable to industrial sources are as follows:
The 1970 Act authorized EPA to set National Emission Standards for Hazardous Air Pollutants (NESHAPs). The statute required that these standards protect public health with an ample "margin of safety," and the scientific understanding of cancer suggests that there is no threshold below which exposure is safe. As a result, EPA found the statutory directive largely unworkable. NESHAPs were promulgated for only seven substances under old section 112. See 40 C.F.R. Part 61.
A special feature of the clean air program, added primarily by the 1977 Amendments, applies to the construction of new plants or projects that increase emissions through the expansion of existing plants. The statute establishes two kinds of pre-construction review depending on the attainment status for the plant location.
In areas that already satisfy air quality standards, special rules have been implemented to prevent a significant deterioration in air quality. The PSD requirements require review of new major sources and of major modifications to such sources, installation of best available control technology, careful monitoring of air quality conditions, and a limiting of the "increment" of clean air that may be polluted by industrial projects. See 163, 165.
In areas that have not achieved attainment of the NAAQS, the restrictions are more severe. Major new projects must install the "lowest achievable emission rate" technology (the most stringent in use anywhere) and must also "offset" emissions increases from the project. See 173.
Because most major urban areas still exceed one or more of the NAAQS, Congress substantially amended the Clean Air Act requirements for nonattainment areas. The amendments establish the most comprehensive scheme for areas not attaining the ozone standard and also contain new provisions directed at meeting other air quality standards as well.
The amendments attack nonattainment problems with a broad array of new requirements. These include tighter standards for emissions from motor vehicles, the use of alternative clean fuels, additional controls on industrial facilities, and a variety of other control measures. Some of these requirements will be added through revised State Implementation Plans, while others will result directly from the statute and federal regulation.
Requirements that existing major sources install reasonably available control technology continue to have very direct consequences for industry. To achieve the ozone standard, EPA must issue a new wave of "control technique guidelines" and other control guidance defining technological controls for all sources of volatile organic compounds and nitrogen oxides emitting more than 25 tons per year. See 172, 182, 183.
Revised State Implementation Plans are required for all nonattainment areas. Deadlines for achieving the standards are based on the severity of an area s pollution. For ozone, nonattainment areas are broken down into five categories marginal, moderate, serious, severe, and extreme. For marginal areas, attainment must be achieved within three years (by November 15, 1993), but areas with higher ozone levels have longer periods. The ultimate date for attainment is 2010 for Los Angeles, the only extreme ozone area.
The revised ozone SIPs (for all but marginal areas) must achieve attainment by the final deadline and must demonstrate a total net reduction in emissions below the base year inventory. These percentage reductions are: 15% during the first six years (through November 15, 1996) and 3% per year thereafter. These progress requirements will impose additional specific controls on individual industrial facilities.
The amendments also toughen the requirements applicable to construction of new major plants and major modifications to existing plants. Until now, only sources with the potential to emit 100 tons per year of a regulated pollutant were subject to new source review in nonattainment areas. Under the amendments, however, new source review applies to smaller sources in more seriously polluted ozone nonattainment areas. The new size cut-offs in serious, severe, and extreme areas are 50, 25, and 10 tons per year, respectively. Also, depending on the severity of pollution, the required level of offsets has been increased in ozone nonattainment areas. Finally, the amendments significantly increase the numbers of modifications to major sources subject to new source review. See 182(c), (d), (e).
Congress created a totally new scheme for regulating air toxics because of the difficulties EPA faced under the statutory criterion that hazardous air pollutant standards protect public health "with an ample margin of safety." The amendments establish a list of 189 toxic pollutants to be regulated and command EPA to impose tight controls according to a new two-phase strategy. The first phase will be based on technology standards and will require sources to install the Maximum Achievable Control Technology (MACT). If EPA thereafter determines that the MACT standards do not adequately protect public health, it is then required to set a second round of residual risk standards.
Under the amendments, EPA must establish MACT standards that require the maximum degree of emissions reduction achievable, taking into account costs and other non-health related factors. The standards are to be established on a source category basis rather than on a pollutant-by-pollutant basis as provided for under old section 112. See 112(c), (d).
EPA promulgated a list of 174 source categories in December 1993. The statute requires that EPA promulgate MACT standards for the listed categories according to a schedule extending from November 1992 to November 2000. Sources must achieve compliance with standards within three years of promulgation, but a one-year extension is authorized. See 112(d), (e), (i).
Under the amendments, both major stationary sources and area sources are to be controlled. The new statute defines a "major source" as any industrial facility that emits 10 tons per year of any single air toxic or 25 tons per year of any combination of air toxics. Smaller sources are defined as "area sources." See 112(a), (c)(3), (d).
Although the emphasis of the air toxics program will shift from risk elimination to achievement of maximum improvement through the use of available technology, the concept of risk-based controls has not been abandoned. Indeed, the amendments require that after the MACT standards are promulgated for each category, EPA must determine whether more stringent standards are required to protect public health with an "ample margin of safety," the criterion established under the 1970 Act. Residual risk standards are to be set, if required, within eight or nine years after MACT standards for a source category, i.e., as early as 2001.
The amendments create a totally new regulatory program to address the prevention of, and response to, accidental or catastrophic releases. As required under statute, EPA promulgated a list of extremely hazardous air pollutants. By 1999, plant owners must identify possible hazards and develop risk management plans pursuant to regulations published at 40 C.F.R. Part 68. Section 112(r) also establishes a Chemical Safety and Hazard Identification Board to investigate accidents and make recommendations regarding accident prevention.
Title V of the amendments establishes a new Clean Air Act permit program that will require almost all sources of significant air emissions to apply for and obtain permits. The permit program will likely have a major impact on how stationary sources plan their activities and has the potential to constrict substantially the operating flexibility of large existing facilities.
The new permitting requirements provide that sources must obtain permits that include all applicable requirements, thereby partially eclipsing the importance of the SIPs. Permits will be required for any facility defined as a major source under any of the Clean Air Act s provisions, for all sources subject to new source performance standards, and for others specified by regulation.See 501-503.
Permit applications must be submitted within 12 months after state permit programs take effect (which will vary greatly state to state). If a source submits a timely and complete application, it may continue to operate until the permit is issued, which may be a period of many years. Thus, the filing of any required applications is essential. The permit requirements establish a maximum term of five years, grant EPA veto power over the proposed permit terms, and authorize judicial review for private citizens. Compliance with the new permits will generally "shield" industrial facilities from enforcement actions involving Clean Air Act requirements expressly addressed in the terms and conditions of a permit.
Since the Clean Air Act had not been amended since 1977, its enforcement provisions did not compare to those in other major statutes. Under the 1990 Amendments, however, Congress eliminated that disparity by greatly expanding and strengthening EPA s enforcement authority.
The EPA Administrator can now impose administrative penalties of up to $27,500 per day for any violation. The maximum penalty is $200,000 in most such instances. The amendments also authorize EPA to establish a "field citation program" for minor violations; government inspectors may write tickets imposing penalties of up to $5,000 per day for each violation. Finally, the amendments clarify and expand EPA authority to issue administrative orders, and the maximum period the Agency may allow for compliance is one year. See 113(a), (d).
The amendments also convert the knowing violation of virtually every requirement into a felony crime. Sanctions to enforce violations include, for individuals, fines of up to $250,000 and imprisonment up to five years. Fines for corporations may be up to $500,000 for each violation. For both individuals and corporations, each day counts as a separate violation. Penalties for knowingly releasing air toxics which put another in imminent danger of serious bodily injury are even greater. In addition, the negligent release of air toxics is now subject to criminal penalty. See 113(c). Knowing failure to maintain required documents or to file required notifications or reports is expressly made subject to these sanctions. See 113(c)(2).
The amendments include a number of other significant enforcement-related provisions. EPA s burden of proving continuous violations has been significantly eased under a provision presuming that violations, once proved, continue until full compliance is achieved. A defendant bears the burden of proving that the violation has ceased. In addition, the Agency is given the authority to pay a "bounty" of up to $10,000 to anyone who provides information that leads to a civil penalty or criminal conviction. Since 1990 EPA has proposed numerous rules to implement the Clean Air Act s new enforcement provisions. EPA issued a rule that allows EPA or citizens to use "any credible evidence" to demonstrate non-compliance with any air requirement. EPA also promulgated the "Compliance Assurance Monitoring" program in 1997 to implement the requirement in section 114(a)(3) that it provide "enhanced monitoring" for major sources.
The 1990 amendments and the implementing rules will likely lead to a vast increase in citizens suits and EPA actions as happened under the Clean Water Act during the 1980s. See 113(e), (f), 304(a).
The Firm s Clean Air Act practice includes the following types of representation:
Under the amended Clean Air Act, projects for plant modernization or growth and defense of enforcement actions will continue to require legal assistance. In addition, three specific areas under the amended Act the new permitting requirements, the MACT rulemakings under section 112, and acid rain restrictions require substantial strategic legal assistance to ensure that clients interests are effectively represented.
Several Morgan Lewis attorneys have extensive Clean Air Act experience, including Bill Lewis, who served as Executive Officer of the California Air Resources Board from 1975 through 1978 and then as Director of the National Commission on Air Quality from 1978 to 1981. Since 1981, he has had extensive experience representing industrial clients on matters such as those listed above. John Quarles experience on matters involving the Clean Air Act goes back to 1969 when he served on a White House Task Force that developed proposals leading to enactment of the 1970 Act. As the first EPA General Counsel and Assistant Administrator for Enforcement and then as the Agency s Deputy Administrator, he participated in many of the major decisions on implementation of the Clean Air Act program. For over a decade, he was the Chairman of the National Environmental Development Association s Clean Air Act Project, a leading participant in the 12-year national debate over proposed amendments to the statute. Michael McCord supervised or personally handled most of the significant Clean Air Act litigation over the past decade while at the Justice Department. Denise Grant has substantial experience in Clean Air Act issues including air toxics litigation, enforcement actions, and permitting issues. Kenneth Myers has also handled a variety of Clean Air Act matters, including the defense of a number of enforcement actions under sections 113 and 120. In the Los Angeles office, Randy Visser has had significant experience in resolving air quality issues with the South Coast Air Quality Management District.