CHAPTER 1 THE CLEAN AIR ACT AMENDMENTS OF 1990, AND OTHER RECENT DEVELOPMENTS

• Jurisdiction: United States

Environmental Law: An Update for the Busy Natural Resources Practitioner
(May 1990)
CHAPTER 1
THE CLEAN AIR ACT AMENDMENTS OF 1990, AND OTHER RECENT DEVELOPMENTS
Sheila G. Bush
Holland & Hart
Boise, Idaho

TABLE OF CONTENTS

SYNOPSIS

I. CLEAN AIR ACT REAUTHORIZATION

A. Seven Titles

1. Air Toxics

a. Listed Hazardous Air Pollutants

b. Source Categories

c. Technology-based Emission Standards

d. Schedule for Regulation

e. Residual Risk Regulation

f. Alternative Emissions Level

g. Relief From HAP Requirements

h. HAP Permit Requirement

i. Extremely Hazardous Substances

2. Permits

a. Permit Requirement

b. State Programs

c. Schedule

d. Permit Shield

e. EPA Veto

3. Enforcement

a. Enforcement Tools

b. Criminal Enforcement

c. Citizen Suits

4. Other Titles

a. Nonattainment

(1) PM%L10%L Nonattainment Areas

(2) Visibility

b. Mobile Sources

c. Acid Rain

d. Stratospheric Ozone Protection

II. OTHER RECENT DEVELOPMENTS

A. PM%L10%L NAAQS

B. Increments

C. Rural Fugitive Dust

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D. Surface Coal Mines Not Listed

E. Federal Enforceability

F. BACT

G. Case Law Developments

1. The General Motors Case

2. The Solar Turbines and Ford Decisions

3. The WEPCO Case

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While recent developments by the Environmental Protection Agency ("EPA") and the courts have wrinkled the weave of Clean Air Act regulation, Congress in the proposed Clean Air Act Amendments of 1990 has announced new fabric. This paper first addresses the changes to the Clean Air Act under synthesis in committee rooms and staff offices on Capitol Hill, and then recounts recent guidance offered by EPA and the courts on the current Clean Air Act.

I. CLEAN AIR ACT REAUTHORIZATION

Congress watchers predict that the 101st Congress will enact the Clean Air Act Amendments of 1990 shortly before the election recess in November. After stormy days in March forging a compromise between the Senate leadership and the Bush Administration, the Senate passed a clean air bill (S. 1630) on April 3, 1990, by an 89-11 vote.

The focus in May now turns to the House. The House Energy and Commerce Committee reported out an amended version of the Administration bill (H.R. 3030) on April 5, 1990; once the Committee's report is issued, the bill is expected to visit the Ways and Means and Public Works Committees for "brief referrals," Congress watchers estimate that H.R. 3030 as amended may go to

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the House floor for a vote as early as the end of May.¹ Once the House of Representatives passes a clean air bill, a conference committee consisting of representatives of both the House and Senate will reconcile differences and issue a report. Congress then will vote again on the reconstituted bill.

A. Seven Titles

The Clean Air Act Amendments of 1990 contain provisions in seven major areas, corresponding to the number of titles in the Act² : (1) nonattainment; (2) mobile sources; (3) air toxics; (4) acid rain; (5) permits; (6) enforcement; and (7) stratospheric ozone and global climate protection. Since mining industry concerns most likely converge on air toxics, permitting and enforcement, the paper addresses these areas in detail, and then notes the basic mechanics and impacts of the remaining four titles. This paper focuses on the provisions of the Senate bill (S. 1630) passed on April 3, 1990, and notes differences in the House bill as amended to date. While the provisions of the Clean Air Act Amendments of 1990 of course remain subject to change by

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both the Conference Committee and the full Congress, the basic provisions discussed below likely will remain.

1. Air Toxics

a. Listed Hazardous Air Pollutants

Title III of S. 1630 contains a list of approximately 200 hazardous air pollutants ("HAPs") that will be subject to regulation.³ A large majority bear CAS numbers,⁴ but the list also includes compounds of heavy metals, including compounds of antimony, arsenic, beryllium, cadmium, chromium, cobalt, cyanide, lead, manganese, mercury, nickel and selenium.⁵ The Waxman/Dingell/Lent amendment to H.R. 3030 deleted ammonia (7664417) and hydrogen sulfide (7783064) from the HAP list, and added a special deletion provision for listed compounds requiring EPA to delete any category of "pollutants on the list which are compounds" if the Administrator determines that the category does not meet the listing criteria.⁶

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b. Source Categories

The proposed Clean Air Act amendments require the EPA Administrator to establish a list of major source categories and subcategories to be regulated; the Agency then will promulgate emission standards for the major source categories.⁷ The Senate bill defines a major source as "any stationary source...that emits, considering installed and operating controls, in the aggregate, ten tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants."⁸ The Senate bill requires the list to be, to

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the extent practicable, consistent with the source category list established under the NSPS and PSD provisions of the Act.⁹ H.R. 3030 as reported from the Energy and Commerce Committee instead requires EPA to list sufficient categories to insure that 90% of the area sources of each listed HAP are regulated.¹⁰ The proposed amendments also include intricate provisions on additions, deletions and revisions to the source category list.¹¹

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c. Technology-based Emission Standards

For each category or subcategory of hazardous air pollutant sources designated for regulation, the Senate bill directs EPA to promulgate emission standards requiring Maximum Achievable Control Technology ("MACT"). The Senate bill defines MACT to mean:

the maximum degree of reduction in emissions of each hazardous air pollutant emitted by any source that the Administrator, taking into consideration the cost of achieving such emissions reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category through applications of measures, processes, methods, systems or techniques including, but not limited to, certain listed measures. The listed measures include measures that (1) reduce the volume of such pollutants through process changes, substitution of materials, or other modifications; (2) enclose systems or processes to eliminate emissions; (3) collect, capture or treat such

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pollutants when released from a process, stack, storage, or fugitive emissions point; and (4) are design, equipment, work practice, or operational standards (including requirements for operator training or certification as provided in subsection (h)), or are a combination of the above.¹²

The Senate bill specifies that the degree of reduction in emissions deemed "achievable" cannot be less stringent than the most stringent emissions level achieved in practice by a source in the same category or subcategory, and may be more stringent.¹³

When EPA sets an emissions standard, the Senate bill requires the Agency to also establish a "minimum emissions rate" for each hazardous air pollutant emitted by sources in the category; sources in a category/subcategory emitting more than the minimum emissions rate must meet the emissions standard.¹⁴ S. 1630 specifies that a minimum emissions rate cannot be more than ten tons per year for any one hazardous air pollutant or 25 tons per year for any combination, unless a higher health effects

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threshold for a category and pollutant can be established.¹⁵ With regard to mercury and certain other hazardous air pollutants, the Senate bill directs the Administrator to establish minimum emission rates assuring that sources accounting for not less than 90% of the aggregate emissions of each pollutant are subject to emissions standards.¹⁶

Following a recurring thread in past amendments to the Clean Air Act, S. 1630 gives special treatment to existing sources. The bill allows emission standards for existing sources to be less stringent than new source standards in a particular category, but the emissions limitation cannot be less stringent than (and may be more stringent than) the average emissions limitation achieved by the best performing existing sources in the category.¹⁷ The Senate bill states that Congress specifically

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finds that an average reduction of 90%, and 95% in the case of particulates, from uncontrolled levels is an appropriate benchmark for emission standards applicable to existing sources in a category or subcategory.¹⁸

The Senate bill also directs EPA with respect to emission standards for categories and subcategories "engaged in mining, extraction, beneficiation, and processing of nonferrous ores, concentrates, minerals, metals, and related in-process materials."¹⁹ In setting "emission standards, work practice standards, operating standards or other prohibitions, requirements or limitations for categories and subcategories," the Administrator must not consider:

the substitution of, or other changes in, metal- or mineral-bearing raw materials that are used as feedstocks or material inputs, or metal- or mineral-bearing materials processed or derived from such feedstocks or materials.²⁰

The prohibition does not apply to "the substitution, modification, or changes of chemicals (not including metal- or mineral-bearing materials) used in mining, extraction, beneficiation, or processing of nonferrous ores, concentrates, minerals, metals, and related in-process materials...necessary to reduce air emissions of such chemicals and for which substitutes that are

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safe and effective in performing the intended function of the chemical to be substituted are reasonably available."²¹

d. Schedule for Regulation

For scheduling purposes, the Senate...