Chapter V

 

CLEAN AIR REGULATION

 

            The primary vehicle for regulation of air pollution is the Clean Air Act (the “Act” or “CAA”), 42 U.S.C. §7401, et seq.  Federal legislation in this area began with the Air Pollution Act of 1955 and the Motor Vehicle Act of 1960, both of which authorized research into air pollution problems.  The Clean Air Act was originally enacted in 1963, and provided for the development of air quality criteria by the Department of Health, Education and Welfare (“HEW”), and federal abatement action in cases of pollution endangering health and welfare.  The 1965 Motor Vehicle Air Pollution Act later authorized HEW to set emission standards for new vehicles.

            The 1967 Air Quality Act strengthened the program by directing HEW to establish air quality standards based upon the HEW criteria, and to implement those standards.  It also provided that federal emission controls on new vehicles preempt state regulation.

            Because these efforts were inadequate to deal with increasing air pollution problems across the nation, Congress adopted the 1970 Clean Air Amendments.  The Amendments required national ambient air quality standards, national emission standards for stationary and mobile sources, and state implementation plans (“SIPs”).

            The Clean Air Act Amendments of 1977, among other things, extended the deadlines for meeting SIPs, and added the Prevention of Significant Deterioration program.  The Clean Air Act of 1990 addressed such issues as nonattainment of ambient air quality standards, hazardous air pollutants, and acid rain control.

            The Act is broken up into the following titles:

            Title I               Air Pollution Prevention and Control

            Title II Emission Standards for Mobile Sources

            Title III General

            Title IV Noise Pollution

            Title IV-A        Acid Deposition Control

            Title V Permits

            Title VI             Stratospheric Ozone Protection

 

            The Act is administered by EPA through extensive regulations.  CAA contemplates implementation of a large portion of the regulatory program by the states.  A state program must be at least as strict as the federal requirements in order for a state to obtain authorization to administer applicable portions of the program. 

            New York State has its own air pollution laws set forth at ECL Article 19, and regulations at 6 N.Y.C.R.R. Parts 200 to 317, which are administered by DEC.  To a large extent, enforcement of the CAA has been delegated to New York State.

A.  MOBILE SOURCES

            A large portion of the Act's strategy relies on technology forcing emission restrictions on new motor vehicles, which are set forth in Title II.  Generally, these include tailpipe emission controls for carbon monoxide, hydrocarbons, and oxides of nitrogen, as well as fuel efficiency requirements for new motor vehicles.   These provisions preempt state provisions, except to the extent waivers have been given to California to promulgate its own standards.  Act §209, 42 U.S.C. §7543.  While other states can mandate California standards, they cannot require a "third vehicle” which differs from a vehicle or engine certified in California under California standards.  Motor Vehicle Manufacturing Assoc. v. NYSDEC, 79 F.3d 1298 (2d Cir.  1996).  These mobile source provisions were revised in the Clean Air Act of 1990, but will not be discussed in detail.

B.  NATIONAL AMBIENT AIR QUALITY STANDARDS

            The heart of the regulatory program under the Clean Air Act is the requirement that EPA establish national ambient air quality standards (“NAAQS”).  “Ambient air” is considered “that portion of the atmosphere external to buildings, to which the general public has access.”  40 C.F.R. §50.1(e).

            Under the Act, EPA must identify air pollutants which “may reasonably be anticipated to endanger public health or welfare,” and then issue “air quality criteria” setting forth the “identifiable effects on public health or welfare” of such pollutants.  Act §108(a), 42 U.S.C. §7408(a).  It must also publish “control techniques” for the pollutants.  Act §108, 42 U.S.C. §7408.

            Then, EPA must prescribe national “primary” and “secondary” NAAQS for each pollutant for which such criteria are established.  §109(a), 42 U.S.C. §7409(a).  A primary NAAQS is defined as a standard “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing adequate margin of safety, are requisite to protect the public health.”  §109(b)(1), 42 U.S.C. §7409(b)(1).  A secondary NAAQS is “a level of air quality... requisite to protect the public welfare from any known or anticipated adverse effects” of the pollutant.  §109(b)(2), 42 U.S.C. §7409(b)(2).

            These standards are set by EPA regulation after notice and written comment by the public, §109(a)(1), 42 U.S.C. §7409(a)(1), and may be revised from time to time.  §109(b), 42 U.S.C. §7409(b).  NAAQSs have been set for SO2, particulates, ozone, NO2, lead, and carbon monoxide.  These are often referred to as the “criteria pollutants.”

            On July 18, 1997, EPA adopted new rules to change the NAAQSs for ozone and particulate matter.  The ozone standard has been changed from .12 ppm to .08 ppm over an eight-hour period, base upon the average of the fourth highest value in each of three years.  The new standards for particulate matter of 2.5 microns or less (PM-2.5) will be an annual standard of 15 Fg/m3, and a 24-hour standard of 65 Fg/m3.  The states will have to implement these rules through changes in their SIPs.  After a long court battle, these standards were upheld.   See Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 121 S. Ct. 903 (2001), on remand American Trucking Associations, Inc. v. Environmental Protection Agency, 283 F.3d 355 (D.C. Cir. 2002).

C.  STATE IMPLEMENTATION PLANS

            The NAAQSs are to be achieved through the state implementation plans.  Act §110, 42 U.S.C. §7410.  Each state is divided into one or more air quality control regions (“ACQR”), and must devise a plan which will result in attainment of each NAAQSs for each ACQR in the state, by way of strategies such as emission permits, transportation controls, and inspection and maintenance of vehicles.  (Note that New York State has its own system of air quality control areas, by which each county outside New York City, and New York City itself, are given a classification.)

            To the extent an ACQR has achieved the applicable NAAQSs, it is an “attainment area” for that pollutant.  Otherwise, it is a “nonattainment area.”  Nonattainment areas may be subject to stricter controls and sanctions, such as cutoff of federal highway funds, or a moratorium on new permits.

            SIPs are subject to EPA approval.  Once approved, they may be enforced by both EPA and the State.  New York's SIP has been approved by EPA (see 40 CFR §§52.1670-52.1689).  While the 1977 Amendments postponed the deadline for attainment of NAAQSs to the end of 1982 (primary) and 1987 (secondary), many areas still failed to do so.  As a result, the Clean Air Act of 1990 set forth additional requirements for nonattainment areas.  These new requirements are in the process of being implemented by EPA regulations. 

            Title I of the 1990 Act addresses the Attainment and Maintenance of NAAQSs.  It designates the northeastern states, including New York, as an “ozone transport region,” and subjected sources of 50 tons per year of volatile organic compounds (“VOCs”) to reasonably available control technology (“RACT”), including sources in attainment areas.  Act §184, 42 U.S.C. §7511c.

            This program requires 80% reduction from nonattainment levels, unless technically or economically infeasible.  RACT technology is being prescribed by EPA, and includes such things as controls on coatings and contents, incineration, carbon filters, and solvent recovery.  New York State is also in the process of implementing these requirements.

            Further, the 1990 Act set additional requirements for ozone, carbon monoxide and particulate nonattainment areas, depending upon their levels of noncompliance.  Ozone nonattainment areas are classified into six categories from marginal to serious, and subjected to a schedule to come into attainment.  Act §181, 42 U.S.C. §7511.  For example, in marginal ozone areas, RACT must be employed by sources of 100 tons/year or more of VOC, new sources are allowed an offset of 1.1 to 1, and the area was required to reach attainment within 3 years. 

            Another significant program under the Clean Air Act of 1990 is the acid rain control program set forth in Title IV.  This puts a cap of 8.9 million tons per year on sulfur dioxide emissions from stationary sources, and allocates sulfur dioxide allowances between emission sources.  Act §403(a), 42 U.S.C. §7651b(a).  Specific provisions are made for an “allowance transfer system.”  §403(b), 42 U.S.C. §7651b(b).  A nitrogen oxides emission reduction program is also established. 

            New York also has its own State Acid Deposition Control Act, set forth at Title 9 of ECL Article 19.  Further, the 1990 Act added Title VI, which provides for bans on certain chlorofluorocarbons in an effort to protect stratospheric ozone.

D.  NEW SOURCES

            The Act requires EPA to set forth new source performance standards (“NSPS”) for new stationary sources.  Act §111, 42 U.S.C. §7411.  This includes major modifications of existing sources.  Further, under the 1977 Amendments, new sources in attainment areas are subject to the Prevention of Significant Deterioration (“PSD”) program, Act §§160-169, 42 U.S.C. §§7470-7479, while those in nonattainment areas are governed by the Nonattainment New Source Review (“NANSR”) program, §§171-178, 42 U.S.C. §§7501-7508.  New York State is authorized to implement the PSD and NANSR programs, which it does in large part through its permitting program.

            The PSD program applies to “major sources,” defined as those which have the potential to emit 250 tons of air pollutants per year, as well as sources in specified categories which have the potential to emit 100 tons per year.  Act §169(1), 42 U.S.C. §7479(1).  These sources must attain the “best achievable control technology” (“BACT”), §169(3), 42 U.S.C. §7479(3), which is established on an industry-by-industry basis by EPA regulations.

            Stricter requirements apply to NANSR review of new sources in nonattainment areas.  In these areas, all sources of 100 tons per year of air pollutants are considered major sources subject to NSPS.  Further, these sources must go beyond BACT, and emit only the “lowest achievable emission rate” (“LAER”).  §173, 42 U.S.C. §7503.  Moreover, in order to be authorized to build a new source, an increase in air quality must be achieved by elimination of other sources that results in a greater than 1:1 offset.

E.  NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

            CAA §112, 42 U.S.C. §7412, requires EPA to set national emission standards for hazardous air pollutants (“NESHAPs”).  NESHAPs are standards to limit the emission of these hazardous air pollutants, and may include a “design, equipment, work practice or operational standard” where a strict numerical limitation is not feasible.  §112(h), 42 U.S.C. §7412(h).  They apply to both new and existing sources.

Because EPA only acted to set NESHAPs for radon, beryllium, mercury, vinyl chloride, raidionuclides, benzene, asbestos and inorganic arsenic, Congress required that NESHAPs be set for 189 chemicals in Title III of the 1990 Amendments, by redefining hazardous air pollutants as those chemicals on the list inserted at Act §112(b), 42 U.S.C. §7412(b), as well as others which may be later added by EPA. 

Further, Title III of the 1990 Act requires EPA to develop regulations which will require the “maximum achievable control technology” (“MACT”) to reduce hazardous air pollutants for about 250 categories of sources, taking into consideration costs and non-air health and environmental impacts.  Act §112(d), 42 U.S.C. §7412(d).  This standard applies to sources emitting 10 or more tons per year of a particular hazardous air pollutant, or at least 25 tons for all hazardous air pollutants.  MACT is defined as at least as stringent as the control technology employed by the best 12% of existing sources.  However, if a source attains a 90% reduction, it can obtain a six-year extension of time to attain MACT.

            Moreover, the 1990 Act added new strategies that must be implemented to control hazardous air pollutants.  “Area sources” (such as dry cleaners and gas stations) must be controlled so that a 90% reduction of the 30 most serious area source pollutants is achieved.  §112(k), 42 U.S.C. §7412(k).  Further, accidental release reporting has been required for at least 100 extremely hazardous air pollutants.  §112(r), 42 U.S.C. §7412(r).

F.  PERMITTING

            While permits are required for new sources under the NANSR and PSD programs, many states, including New York, have adopted much more extensive emission permitting systems, and apply these requirements at lower thresholds.  Under Title V of the Clean Air Act of 1990, permits were required for all major sources, and affected sources subject to the Title IV acid precipitation controls, beginning 5 to 8 years after enactment.  These permits must include compliance plans and schedules, monitoring, inspection, emitting, reporting, and fee requirements, and review by EPA and contiguous states.

            Effective July 7, 1996, New York State adopted a new air permitting program to comply with Clean Air Act Title V.  See 6 N.Y.C.R.R. Part 201.  New York’s program received interim approval by EPA on December 9, 1996.

            Under the new program, certain activities are exempt or deemed "trivial,” and do not require permits. 6 N.Y.C.R.R. Part 201-3.  "Minor facilities” are now only subject to registration requirements.  6 N.Y.C.R.R. Part 201-4.  Detailed procedures are prescribed for major facilities that require Title V permits.  See 6 N.Y.C.R.R. Part 201-6.  Other major facilities require "state facility permits.”  See 6 N.Y.C.R.R. Part 201-5.

            Permits must assure compliance with all applicable Clean Air Act standards, including NAAQSs, SIP, NSPS, NESHAP, NANSR, and PSD.  Further, they must be in compliance with state categorical regulations set forth at 6 N.Y.C.R.R. Part 203 through 236, which in many cases are stricter than federal requirements.

            Permits generally contain various conditions, including sampling, recordkeeping and reporting.  They are transferrable to a new owner, pursuant to DEC procedures, if the "mode of operation and emissions do not change.”  6 N.Y.C.R.R. §201-1.3.  Violations on account of an "emergency” may be excused if reported within two working days. 6 N.Y.C.R.R. §201-1.5.

G.  AIR ACCIDENTAL RELEASE REQUIREMENTS

            Clean Air Act §112(r), 42 U.S.C. §7412(r), required that EPA establish regulations to require regulated stationary sources to implement accident assessment, prevention and response measures and procedures.  In 1994, EPA promulgated the List of Regulated Substances and Thresholds for Accidental Release Prevention.  See 59 F.R. 4478 (Jan. 31, 1994), 40 C.F.R. §68.130. 

            On June 19, 1996, regulations were promulgated that set forth procedures for facilities to prepare and implement a risk management plan  (“RMP”).  See 40 C.F.R. §§68.10-68.220.   These rules became effective June 21, 1999.  Many industrial facilities were required to comply with these new emergency planning requirements.

            The regulations apply to “stationary sources” (including buildings, structures, and equipment) that have “more than a threshold quantity of a regulated substance in a process.”  40 C.F.R.  §68.10.  These are referred to as “covered processes.”  40 C.F.R. §68.3.   Each such facility must compile a risk management plan that satisfies requirements set forth at 40 C.F.R. §§68.150-68.190.  The RMP must include an “offsite consequence analysis” of worst case scenario(s), §§68.20-68.39, 68.165, a five-year accident history, §§68.42, 68.168, and an emergency response program.  §68.180.  The RMP may also be written to satisfy the OSHA process safety management standard, set forth at 29 C.F.R. §1910.119, which has similar requirements.

            Additional requirements are imposed for prevention programs for “Program 2,” 40 C.F.R. §§68.48-68.60, 68.170, and “Program 3,”  §§68.65-68.87, 68.175, facilities.  Furthermore, these facilities must develop and implement an emergency response program, §68.95, and develop a management program to oversee implementation of the RMP.  40 C.F.R. §68.15.

            Facilities are eligible for less stringent “Program 1" treatment if they have not had serious accidents within the last 5 years, “[t]he distance to a toxic or flammable endpoint for a worst-case release assessment... is less than the distance to any public receptor,” and “[e]mergency response procedures have been coordinated between the stationary source and local emergency planning and response organizations.”  40 C.F.R. §68.10(b).  Program 3 is required for processes covered by NAICS codes 32211, 32411, 32511, 325181, 325188, 325192, 325199, 325211, 325311, or 32532, and for processes subject to the OSHA process safety management standard set forth at 29 C.F.R. §1910.119.  40 C.F.R. §68.10(d).  Program 2 facilities are those that do not fall under Programs 1 or 3.  40 C.F.R. §68.10(c).

            This law was amended in 1999 by the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, P.L. 106-40, to remove flammable materials being used as fuels or held for sale at a retail facility from being covered by the law, and to limit public information to worst-case scenarios that could be used by terrorists.  Regulations at 40 C.F.R. Part 1400 govern access to the information, and include reading-room access to paper copies after proper identification, and only limited internet information.

H.  ADMINISTRATION AND ENFORCEMENT

            While EPA is generally subject to APA, the Clean Air Act sets forth its own separate administrative procedures applicable to certain proceedings.  Act §307, 42 U.S.C. §7607.  Like the Clean Water Act, the Clean Air Act provides for citizen's suits against persons alleged to be “in violation of” emission standards or limitations, or related EPA or state orders, as well as violations of PSD and NANSR requirements, and against EPA for failure to perform any non-discretionary duty.  §304, 42 U.S.C. §7604.  Like under the Clean Water Act, notice must be given at least 60 days prior to suit, citizen action is barred by diligent prosecution by the government, and a prevailing citizen may be awarded attorney's fees.  The 1990 Amendments strengthened the citizen's suit provision, and allow for actions against past repeated violations as well as those “in violation.”

            Enforcement provisions were also strengthened by the 1990 amendments.  In general, civil fines for violations of the Act may be $25,000 per day, §113(b), 42 U.S.C. §7413(b), and criminal violations can result in fines and up to 5 years in jail.  §113(c), 42 U.S.C. §7413(c).   Under the Act, “responsible corporate officers” can be liable for criminal violations, §113(c)(5)(D)(6), 42 U.S.C. §7413(c)(5)(D)(6), and the recent amendments extend this liability to knowing violations by non-senior management.  EPA also may proceed by administrative enforcement proceedings.  §113(d), 42 U.S.C. §7413(d).

            Similarly, violations of state air pollution rules or permits are punishable by administrative and civil penalties of up to $10,000, plus $500 per day of continuation, ECL §71-2103, as well as criminal prosecution resulting in fines of up to $10,000 per day and up to one year in jail.  ECL §71-2105.