CHAPTER 1 AIR QUALITY REGULATION BASICS
| Jurisdiction | United States |
(Feb 2013)
AIR QUALITY REGULATION BASICS
University of Utah S.J. Quinney College of Law
Salt Lake City, Utah
ARNOLD W. REITZE, JR. is a Professor of Law at the University of Utah and a member of the University's Institute for Clean and Secure Energy. For 38 years he directed the Environmental Law Program at the George Washington University Law School where he was the Maurice C. Shapiro Professor of Environmental Law. Professor Reitze is the author of seven books on environmental law, more than 50 law review articles, and many research studies. His books include Air Pollution Control and Climate Change Mitigation Law, Envtl. L. Inst. (2010); Stationary Source Air Pollution Law, Envtl. L. Inst. (2005); The Law of Air Pollution: Compliance & Enforcement, Envtl. L. Inst. (2001); and Air Pollution Law, Michie Company (1995). For nine years he was the faculty editor of the American Bar Association's publication "The Environmental Lawyer." Professor Reitze has extensive experience as an environmental lawyer with an emphasis on air pollution and climate change issues, and has been Of Counsel with a number of law firms. He has been a consultant to the Department of Energy, the Environmental Protection Agency, the National Institute of Occupational Health and Safety, the U.S. Army Corps of Engineers, and the Transportation Research Board. He was a member of the National Academy of Sciences Committee on Demilitarizing Chemical Munitions and Agents (1983-1984). He is a vice chair of the ABA's section of Environment, Energy, and Resources Climate Change, Sustainable Development, and Ecosystems Committee.
Copyright Arnold W. Reitze, Jr.
S.J. Quinney College of Law
The University of Utah
arnold.reitze@law.utah.edu
January 31, 2013
Table of Contents
§ 1. COMMON LAW-BASED ACTIONS
§ 2. THE EVOLUTION OF THE CLEAN AIR ACT
§ 3. THE AIR POLLUTION CONTROL PROGRAM
§ 3(A). Caps on Emissions to Meet Ambient Air Quality Standards
§ 3(B). Emission Limits for Source Categories
§ 3(B)(1). New Source Performance Standards
§ 3(B)(2). Emission Limits for Major Sources of Hazardous Air Pollutants
§ 3(B)(3). Emission Standards for New Motor Vehicles and Motor Vehicle Engines
§ 3(C). Economic Incentives or Disincentives
§ 3(D). Work Practices
§ 3(E). Bans
§ 4. PERMIT REQUIREMENTS
§ 4(A). PSD/NSR Review
§ 4(B). Operating Permits
§ 5. CHALLENGING REGULATIONS
§ 6. ENFORCEMENT
§ 6(A). CAA Enforcement Options
§ 6(B). The NOV
§ 6(C). The Compliance Order
§ 6(D). The Civil Penalty (CAA § 113(d))
§ 6(E). Civil Judicial Actions (CAA § 113(b))
§ 6(F). Criminal Enforcement
§ 6(F)(1). Knowing Violations CAA § 113(c)(1)
§ 6(F)(2). False Statements, Failure to Report, or Tampering Under Section 113(c)(2)
§ 6(F)(3). Failure to Pay a Fee Under Section 113(c)(3)
§ 6(F)(4). Knowing Endangerment Under Section 113(c)(5)
§ 6(F)(5). Negligent Endangerment Under Section 113(c)(4)
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§ 1. Common Law-Based Actions
Common law actions to abate air pollution have been used for centuries. For example, in 1611 in William Aldred's Case, an English court found that the odor from the defendants hog sty was a nuisance.1 The nuisance doctrine has been the primary cause of action for plaintiffs seeking a remedy for air pollution. Nuisance actions can be based on private nuisance or public nuisance. Private nuisance is a nontrespassory invasion of an interest in the use and enjoyment of land, which can be the basis for a legal action by those that have a property interest in the affected land.2 Public nuisance developed historically as a minor criminal offense, which allows the government to prevent an interference with the rights of the community.3 However, a private right to bring an action in public nuisance is available for a plaintiff that has personal injuries or pecuniary losses that differ in kind from the injury to the general public.4 While most tort actions provide only money damages as a remedy, nuisance also provides equitable relief such as injunctions or abatement orders.5 For this reason it is the tort remedy of choice for plaintiffs seeking to stop a polluting activity. Since the late 1950's courts have also recognized the doctrine of trespass, which is a direct interference with the right to use and enjoy land,6 as an appropriate basis for obtaining equitable relief in air pollution cases.7
Tort-based actions for injuries from air pollution are not easy to win. Causation is often difficult to prove because pollutants may come from myriad sources and travel long distances.8 Even when a specific source is identified proving the injuries to a plaintiff were the result of the defendants actions is difficult. Moreover, the time required for many diseases associated with air pollution to be discovered means there may be no solvent entity to sue.9 The failure of the tort system to protect the public from air pollution led to a comprehensive federal/state program beginning in the 1960's. It is now difficult to win nuisance or trespass based case if a potential defendant's actions are consistent with the requirements of the air pollution laws. However because the federal/state air pollution control program does not provide a basis for recovery for property damage or personal injury, those injured usually seek relief based on state tort law.10
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While tort actions are normally based on state law there have been a number of lawsuits that seek equitable remedies or money damages based on the federal common law of nuisance. These efforts have not been successful because actions for pollution related injury are preempted by the federal environmental laws.11 In recent years four lawsuits have been litigated in the federal courts seeking to hold corporations liable for injuries allegedly made worse by climate change. These lawsuits have also not been successful.12 The U.S. Supreme Court in the American Electric Power case held the judiciary was not the appropriate forum to deal with climate change issues on an ad hoc basis and the Clean Air Act has displaced common law actions seeking to control emissions.13
§ 2. The Evolution of the Clean Air Act
Prior to 1967 air pollution law was limited to simple emissions limits for a few industries and by public nuisance-based laws concerning land use or that codified requirements to control odors and the release of smoke.14 The State of California, however, was developing a comprehensive air pollution control program and its experience became an important source of information and expertise in shaping the federal program.15
The first federal legislation dealing with air pollution became law in 1955.16 The law had no title and merely authorized small federal expenditures for federal air pollution research and provided financial assistance to state and educational institutions. It was extended several times, but very little money was actually appropriated.17 The Clean Air Act of 1963 was the first air pollution law with an enforcement mechanism.18 It was a weak law that provided a conference procedure aimed primarily at reducing interstate air pollution, and it provided for research concerning automotive emissions.19 In 1965 the Motor Vehicle Air Pollution Control Act authorized federal regulation of emissions from new automobiles.20 Regulations were first applied to model year 1968 vehicles based on California's regulations for model year 1967
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models sold in California.21 On November 21, 1967, the Air Quality Act of 1967 (AQA) became law.22 It was the beginning of the present federal air pollution control program. It had several defining features. The AQA preempted state regulation of new automobile emissions except in California, which was allowed to have more stringent standards.23 Air pollution control was to be based on achieving ambient air quality standards to be established by the states for their air quality control regions. The states were responsible for meeting the standards by controlling emissions based on a state implementation plan (SIP). The AQA's enforcement mechanism was so weak that the Act was considered a failure, but its basic structure became the model for subsequent legislation.24
The year 1970 was an important year for federal air pollution control efforts. President Nixon created the Environmental Protection Agency (EPA), and the responsibility for air pollution was transferred from the Department of Health, Education, and Welfare to the new agency.25 On December 31, 1970, the Clean Air Act Amendments of 1970 became law.26
The Clean Air Act (CAA), as amended, gave the Administrator of the recently created Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). Primary air quality standards were to be set at a level to protect public health, while secondary standards were to be set at levels that would protect agricultural production, ecosystems, and aesthetics such as visibility. EPA established NAAQS for six criteria pollutants: particulates, sulfur dioxide, carbon monoxide, ozone, nitrogen dioxide, and hydrocarbons. EPA subsequently added lead in 197827 and delisted hydrocarbons in 1983.28 In 1987 the particulate standard was changed to a course particulate standard (PM10) and a fine particulate standard (PM2.5) was added in 1997.29 Each state was responsible for the "implementation, maintenance, and enforcement" of the primary standard in each AQCR within the state based on the state's SIP.30 Although the 1970 Amendments emphasized that air pollution prevention and control remained the "primary responsibility of states and local governments," and made the states fully responsible for directing and coordinating all intrastate control activities, EPA was to be in charge of the air pollution control program.31
The CAA also provided for...
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