CLEAN AIR ACT ENFORCEMENT: SETTLEMENT STRATEGIES AND RECENT DEVELOPMENTS

• Jurisdiction: United States

Air Quality Challenges Facing the Natural Resources Industry in the Western United States
(Nov 2007)
CHAPTER 10C
CLEAN AIR ACT ENFORCEMENT: SETTLEMENT STRATEGIES AND RECENT DEVELOPMENTS
Dianne Shawley
Senior Counsel
U.S. Department of Justice
Washington, D.C.

Settlement Strategies and Recent Developments

I. Technology - "Raising the bar" through innovative settlements across industry sectors

II. Enhanced Injunctive Relief -- How it fits into the settlement framework

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I. TECHNOLOGY

A. SHARING THE RISK IN THE SELECTION OF CONTROL OPTIONS

1. "BACT" or "LAER" - what is the difference?

Best Available Control Technology --

CAA 42 U.S.C. §§ 7475(a)(4) and 7479(3)

and Lowest Achievable Emission Rate

CAA 42 U.S.C. §§ 7501(3) and 7503(a)(2)

2. Who defines BACT/LAER?

Permit writers, not EPA and not DOJ

3. What is the difference anyway?

Limits not technology

$$$ cost per ton or not

RBLCH -- RACT/BACT/LAER Clearing House

CAA 42 U.S.C. § 7503(d) -- EPA's database of Control Technology Information -- submitted by permit writers; available to states and general public

4. In the past the "clearinghouse approach" has preserved the "lowest common denominator" in the industrial sector

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B. "TEST AND SET" AND OTHER GREAT SETTLEMENT IDEAS

1. No one wants to be a guinea pig, but...

2. It's not BACT or LEAR until a permit says it is -- goal is to get the new technologies into permits

3. Unless someone agrees to try it, the vendors won't compete, the technology won't improve, the price won't come down

4. Test after startup and Set limits based on performance -- create incentive to be the "tester"

C. EXAMPLES OF HOW NEW TECHNOLOGIES CAME OUT OF NEGOTIATED SETTLEMENTS:

1. Thermal Oxidizers to control VOCs (plywood and ethanol plants)

U.S. v. Georgia-Pacific (N.D. GA 1996)

U.S. v. Archer Daniels Midland (C.D. IL. 2003)

2. NOx-reducing catalyst additives and Regenerative Wet Gas Scrubbers (refineries)

U.S. v. Valero Refining Company (W.D. TX 2005)

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II. ENHANCED INJUNCTIVE RELIEF

A. HOW DOJ DEFINES IT:

1. Going Beyond Compliance -- "more than what is needed to correct the violation; compensates for past illegal emissions"

B. WHAT WE'VE OBTAINED IN RECENT SETTLEMENTS:

1. Set more stringent standards than what's in the regulations

Refinery LDAR program -- use of lower leak definitions

500 ppm v. 10,000 ppm

U.S. v. Conoco Inc. (S.D. TX 2001

2. Required controls on "units...