Clean Air Act Part 2

Question 1

Changes in Clean Air Act Amendments of 1977 and 1990

Answer 1

• prevention of significant deterioration (part C)
• nonattainment provisions (part D)
• interstate controls

Question 2

Nonattainment Plan

Answer 2

• general: shall provide for implementation of all reasonably available control measures
• RFP - shall require reasonable further progress
• permits for new + modified major stationary sources: shall require permits for construction and operation of new or modified major stationary sources

Question 3

Nonattainment Permit Requirement

Answer 3

• new and modified major stationary sources need to make sure sufficient offsetting emissions reductions obtained by the time they commence operation
• sources looking to get permits need to comply with “lowest achievable emission rate”

Question 4

Lowest Achievable Emission Rate

Answer 4

• the rate sources need to achieve to get permits in nonattainment areas
  -“the most stringent emission limitation” contained in any state SIP for such source or “the most stringent emission limitation which is achieved in practice,” whichever most stringent
• can’t exceed amount allowable under applicable new source standards of performance

Question 5

Major Stationary Source

Answer 5

• any stationary source that directly emits or has potential to emit one hundred tons per yr or more of any air pollutant

Question 6

Federal Implementation Plans

Answer 6

• CAA Section 110(c)
• EPA can do this if a state doesn’t have a proper SIP
• doesn’t want to do this though b/c fed gov would need to enforce + administer it itself -> don’t really have the resources for this, so they’re reluctant

Question 7

Significance of Nonattainment Permit Requirements

Answer 7

• addresses part of the problem of NAAQSs not being met - if you’re in a nonattainment area and you want to have a new or modified major stationary source, you need to get the permit
• permit then imposes VERY strict reqs - need to do offsets in the area (either company pays for these or gov can do by reducing elsewhere) and need to meet lowest achievable emission rate

Question 8

Prevention of Significant Deterioration

Answer 8

• Sections 160-169
• designed to keep areas meeting the NAAQSs from declining
• two things to note: increments and ceilings, and preconstruction requirements

Question 9

PSD - Increments and Ceilings

Answer 9

• Section 163
• the SIP needs to include measures to make sure maximum allowable increases over baseline concentration, and max allowable concentrations of the pollutant, aren’t exceeded (there’s only a certain amount you can go up by, and can’t exceed the NAAQS)
• if increment already eaten up by other sources, need to do offsets

Question 10

PSD Permitting Requirement

Answer 10

• Section 165 - Preconstruction Requirements

No “major emitting facility” can be constructed unless:
- won’t cause air pollution in excess of any max allowable increase or max allowable concentration for any pollutant in “any area to which this part applies”
- proposed facility subject to best available control technology (BACT) for each pollutant subject to regulation under the CAA

Question 11

Where does Section 165 apply?

Answer 11

• EVERYWHERE - basically everywhere in the country is now a PSD area for lead (meets the lead NAAQSs)
• so, every new/modified facility in the country is at minimum subject to BACT standard

Question 12

Major Emitting Facility

Answer 12

• the phrase for facilities subject to Section 165 (PSD)
• means stationary sources that emits or has potential to emit one hundred tons per year or more of ANY air pollutant (doesn’t need to be the one you’re in the PSD area for)

Question 13

Ozone Nonattainment SIP Requirements

Answer 13

• there are special reqs if you’re in an ozone nonattainment area - see PPT 6.1

Question 14

BACT

Answer 14

• best available control technology
• standard for new/modified sources in PSD areas (basically everywhere)
• means emission limitation based on “maximum degree of reduction of each pollutant subject to regulation” under CAA (not just the ones you’re PSD for) which the permitting authority determines is achievable for the facility on a case by case basis

Question 15

BACT vs. LAER

Answer 15

• BACT is more forgiving - its facility-specific
• vs. LAER (for nonattainment areas) is category-focused - you need to do the best that’s possible in your category

Question 16

New Source Review

Answer 16

• nonattainment permit program for new sources
• PSD permit program for new sources
• does NOT include but builds upon section 111 New Source Performance Standards

Question 17

New Source Performance Standards

Answer 17

• part of the ORIGINAL Clean Air Act - Section 111
• gets overtaken by nonattainment areas and PSD - need to make sure requirements aren’t less demanding than what 111 would otherwise require
• since BACT basically applies everywhere, 111 winds up doing less

Question 18

Clean Air Act - Existing Sources

Answer 18

• thought existing sources would phase out over time or would have to modify (thought grandfathering in would be of a limited time period)
• BUT existing sources found ways to avoid the modification issue + avoid the more stringent standards
• wind up giving them an incentive to use tech that is older and more polluting

Question 19

Nonattainment vs. PSD Requirements for New Facilities

Answer 19

• for nonattainment, you have to use LAER, BUT only for the pollutant that’s specifically nonattainment AND you’re only a major source if you’re emitting 100 tons per year of that specific pollutant
• for PSD, you use BACT, but it applies to ALL regulated pollutants and it kicks in if you’re emitting 100 tons per yr of ANY single regulated pollutant

Question 20

Section 111(a)(4)

Answer 20

• this is a part of 111 that’s still relevant because it defines what modification means (how you get the old sources)
• modification = any physical change OR change in method of operation of the stationary source WHICH increases amount of ANY air pollutant emitted by the source

Question 21

PSD Regs - Major Modification

Answer 21

• 1987
• major mod = any physical change that would “result in a significant net emissions increase”
• excludes routine maintenance or an increase in the hours of operation
• think was a possible loophole to get existing sources out of the PSD reqs - 111 said what a “modification” was, but didn’t specify what made the modification major

Question 22

Existing Sources - Trends in Late 90s

Answer 22

• EPA begins enforcing the major modification PSD regs in 1999 - industry had just kept tossing things in as “routine maintenance”
• string of EPA judicial victories in court, + most companies began to settle
• hundreds of millions of dollars in fines, + increased emission controls

Question 23

Environmental Defense v. Duke Energy - Facts

Answer 23

• 2007
• Duke Energy put in THOUSANDS of new tubes - the tubes allowed the plant to operate more hrs
• EPA tried to bring an enforcement action, but Duke Energy said just an increase in hours -> 4th Circuit bought this + said no modification

Question 24

Duke Energy - Question Presented

Answer 24

• whether emissions “increase” for PSD purposes measured by annual or hourly basis

Background
- PSD defines “construction” to include modification as defined in 111(a)(4) -> 111(a)(4) says modification if it’s a physical change that increases the amount of air pollutant-> Duke Energy replaced the pipes and was still emitting at same hourly rate, but increased its annual emissions because it was able to operate longer hours

Question 25

Duke Energy - Env/EPA Args

Answer 25

• in evaluating modification, if there’s a physical change, it counts as a modification if it increases the ANNUAL emissions (this would then include a physical change that allows the facility to operate for more hours)
  -> the increase in hours wouldn’t be a physical change in and of itself, but if you make a physical change to the facility that allows it to operate for more hours, then it turns into a modification
• Wrinkle: EPA NSPS modification regs have already said it evaluates emissions increase for NSPS (Section 111) on an hourly basis, not annual, vs. their PSD modification regs say significant mod = increase of 100 tons per yr-> this means the argument is trying to say the same word has two different meanings in two different parts of the same statute

Question 26

Duke Energy - Decision

Answer 26

• SCOTUS sides with EPA - says the same word CAN have different meaning in different parts of the statute (says could be used with different intent in different parts of the act)
• the cross-reference from PSD to 111 doesn’t mean Congress intended to get rid of agency discretion to decide how to interpret the term in each place it occurs
• 1980 PSD regs referenced increase measurements as annual, not hourly
• in the 1980 regs, the exemption for increase in hours is just for physical change, not for significant increase in emissions (agrees w/ EPA - increase in hrs alone not physical change automatically, but if you make a physical change that allows you to increase your hrs, it might be a mod if your emissions go up)