CHAPTER 1 CLEAN AIR ACT FUNDAMENTALS MAJOR PROGRAMS AND STRATEGIES IN THE FEDERAL CLEAN AIR ACT 42 U.S.C. 7401 TO 7671Q (2007)
| Jurisdiction | United States |
(Nov 2007)
Davis Graham & Stubbs LLP
Denver, Colorado
Alan J. Gilbert
Holme Roberts & Owen LLP
Denver, Colorado
Jeffrey W. Schwarz
Carver Schwarz McNab & Bailey, LLC
Denver, Colorado
Mark S. Squillace
Natural Resources Law Center
University of Colorado School of Law
Boulder, Colorado
Notes
This faculty has assembled a variety of materials for your reference during and after their review of key features of and inter-relationships within the Clean Air Act. These materials include: · a lengthy descriptive outline; · a description of a hypothetical facility along with a schematic of the facility and a list of potentially applicable Clean Air Act provisions; · a Congressional Research Service ("CRS") report for Congress entitled "Clean Air Act: A Summary of the Act and Its Major Requirements"; · excerpts from EPA's "Plain English Guide to the Clean Air Act;" and · a glossary of Clean Air Act terms. There is also a table in the CRS report (Table 3) that lists the table of contents to the Clean Air Act, cross-referencing the Statutes at Large section numbers and the United States Code section numbers of the Act, for your convenience.
A Descriptive Outline of Major Programs and Strategies in the Federal Clean Air Act 42 U.S.C. §§ 7401 to 7671q (2007)
This is a descriptive outline of the major programs in the federal Clean Air Act. It is "descriptive" because it touches only lightly upon many diverse topics.
Our intent here is quite limited. We want to give you an overview of how this law works in major respects. This is a very complicated statute and it is accompanied by even more complicated regulations and guidance. With only a little bit of research, you will be able to find much more exhaustive treatment of all the subjects touched upon below.
The Clean Air Act is codified at 42 U.S.C. §§ 7401 to 7671q (2007). You should start there to obtain more detail and more information.
Finally, the citations in this outline are to the "statutes at large" version of the Clean Air Act. Please use the table of contents included in your materials to locate parallel U.S. Code citations.
I. Background and Brief History of the Clean Air Act
A. Stationary sources and mobile sources establish the "Great Divide" in air quality regulation. This outline discusses only stationary source controls in the Clean Air Act.
1. Stationary sources, including factories, oil and gas compressor facilities, and other "smokestack" industries, are the focus of much of the regulation in the Clean Air Act. You will see this if you scan Subchapter I, Parts A, C and D and Subchapters IV, V, and VI of the statute.
2. Mobile sources (like cars, trucks and aircraft) are the focus of Subchapter II.
3. Though we will not address mobile sources in detail here, you should be aware that very great advances in emissions controls since the 1970's have led to large decreases in automotive emissions. This is a tremendous air quality success story, and the mobile source program may be the greatest triumph of the Act.
a) EPA reports that emissions of carbon monoxide for road-going vehicles have declined from about 113 million tons per year in 1970 to about 50 tons per year in 2000, despite a large growth in vehicle miles traveled. The numbers for hydrocarbons are about 15 million tons per year in 1970 and about 4.6 million tons per year in 2000. Particulate matter emissions have decreased overall, too. Only nitrogen oxides have increased, from about 6.7 million tons per year in 1970 to about 10.7 million tons per year in 2000.
[Page 1-2]
B. A (very) brief history of the Clean Air Act
1. The modern Clean Air Act is codified at 42 U.S.C. §§ 7401 to 7671q.
2. The strategies included in today's Clean Air Act find their origins (for the most part) in the 1970 Clean Air Act, Pub. L. No. 91-604.
a) This statute was a part of the revolution in American environmental law that began with the passage of the National Environmental Policy Act (NEPA) and included the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and others.
b) The 1970 Clean Air Act established the National Ambient Air Quality Standards as the principal bulwark against unhealthy air; the federalism inherent in a split of authority between the states and the federal government and the state implementation plan process; and the specific control of new sources with the technological New Source Performance Standards.
c) The 1970 Act is also notable for its first-of-its-kind enforcement of environmental protections by the federal government.
3. The 1977 Amendments to the Clean Act, Pub. L. No. 95-95, were the next major change in air quality control. This statute nearly doubled the size of the 1970 law.
a) The 1977 Amendments are particularly notable for their inclusion of the nascent Prevention of Significant Deterioration and Nonattainment programs in the federal statute. These "new" programs built upon litigation brought by environmental groups that reached the U.S. Supreme Court and regulations created by the U.S. Environmental Protection Agency (EPA).
4. In 1990, Congress again amended the Clean Air Act in significant ways in Pub. L. No. 101-549. The 1990 Amendments also nearly doubled the size of the Clean Air Act as amended in 1977!
a) The 1990 Amendments injected great statutory detail into the process of bringing nonattainment (dirty air) areas of the United States into compliance with the National Ambient Air Quality Standards.
b) The 1990 Amendments embedded the Title V operating permit program in the Clean Air Act.
[Page 1-3]
c) The 1990 Amendments also included new programs to control acid rain and stratospheric ozone depletion.
d) The 1990 Amendments also "corrected" a dysfunctional program to control hazardous air pollutants included in earlier statutes. It changed this program to one dependent initially upon technological standards (use the "best" controls available), rather than standards based upon findings concerning the effect of a pollutant on health ("risk-based" standards). EPA had been paralyzed by the implications of setting standards based upon risk and the program had been a failure.
II. Ambient air quality standards, state implementation plans, and fundamental administrative approaches
A. National Ambient Air Quality Standards (NAAQS) -- the most fundamental standards in the Clean Air Act.
1. Primary standards are established at a level that will protect public health with a margin of safety. Section 109(b)(1).
2. Secondary standards protect public welfare (things like soiling, visibility, climate). Sections 109(b)(2) and 302(h).
3. Technical documents called "air quality criteria" document the scientific and medical effects of air pollutants being considered for ambient air quality standards. Section 108. That is why the pollutants subject to NAAQS standards are commonly called "criteria pollutants."
4. The national ambient air quality standards are collected at 40 CFR Part 50.
5. The current national ambient air quality standard (criteria) pollutants are as follows.
a) Sulfur dioxide
b) Particulate matter of small aerodynamic diameter, less than 10 microns and less than 2.5 microns. (Particulate matter is anything caught and weighed on a filter after representative air in the atmosphere is pulled through it. Particulate matter is made up of liquids or solids suspended in the atmosphere.)
c) Nitrogen dioxide
d) Lead
e) Ozone. (Ozone is a secondary pollutant, formed in the atmosphere in the presence of sunlight. Precursors of ozone include volatile organic compounds and nitrogen oxides.)
[Page 1-4]
f) Carbon monoxide
6. Each national ambient air quality standard includes a number (representing a concentration of the pollutant in the atmosphere, often measured in micrograms per cubic meter of atmosphere), an averaging time over which the standard is measured (an hour, a day, or a year, for example), and a very precise technical protocol for sampling and measurement. Each aspect of a standard is equally important to define the standard and its stringency.
7. National ambient air quality standards are set without regard to the economic cost of the standard and the technical feasibility of meeting the standard. NAAQS are pegged solely to the protection of public health and welfare.
8. The NAAQS are the principal standards of the Clean Air Act.
a) They define, in law and practice, the difference between "clean and healthy" air as distinct from "dirty and unhealthy" air.
b) Consequently, a host of disparate and important strategies in the Clean Air Act are marshaled to attain and maintain the national ambient air quality standards in the atmosphere over every part of the United States.
9. Air quality control regions that meet national ambient air quality standards for a particular pollutant are called "attainment areas" for that pollutant. These are clean air areas.
10. Air quality control regions that do not meet national ambient air quality standards for a pollutant are called "nonattainment areas" for that pollutant. These are dirty air areas.
11. A particular air quality control region can -- at the same time -- be in attainment for some pollutants and nonattainment for other pollutants. This fact leads to substantial complexity in permitting and other programs.
...12. Extremely difficult judgments are embedded in each standard because EPA must decide what exactly defines the "public health," a "margin of safety" and the science of health and welfare effects. "Ambient air" is a term
To continue reading
Request your trial