VII The Clean Air Act

• Library: Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.)

VII. The Clean Air Act¹ Eugene P. Schmittgens, Jr. St. Louis, MO

The federal Clean Air Act (42 U.S.C. Sections 7401 to 7671(q)) is perhaps the most difficult of the environmental statutes. New regulations¹ are promulgated on a regular basis. Therefore, these few pages can only provide a very basic review of the requirements of the Act.²

Originally passed as the Air Pollution Control Act of 1955, the first version of the Act merely provided research assistance to the States to implement controls. The first Clean Air Act was passed in 1963, where the focus turned to abating air pollution. The Act has undergone a number of revisions ending with the most recent overhaul in 1990. Of particular concern to the practitioner advising a client is the permitting regimen of the Act. The 1970 Clean Air Act Amendments established a command and control regulatory structure; that is the regulator dictates how to reduce a pollutant, the amount of the reduction and the technology to use to ensure the reductions are met. The 1990 Clean Air Act Amendments expanded the permit program and introduced a market-based regulatory system.

A. Scope and Purpose of the Clean Air Act

The Clean Air Act addresses a number of issues of outdoor air pollution. Those issues include hazardous air pollutants, visibility, acid rain, stationary,³area⁴ and mobile sources,⁵ and stratospheric ozone. It should be noted that there are other federal environmental laws that address other aspects of outdoor air pollution. Specifically the Resource Conservation and Recovery Act which addresses air emissions from hazardous waste disposal facilities and the Emergency Planning and Community Right To Know Act which requires covered entities to report "toxic" air emissions and the Occupational Safety and Health Act (OSHA) which regulates indoor air pollution in the workplace. In Illinois, there also are facilities, generally smaller sources of emissions, which are regulated through state-issued permits. Finally, the practitioner should also consider that various states have enacted laws regulating indoor activities and air quality in offices and other business settings.

B. National Ambient Air Quality Standards

The process for addressing air pollution was first outlined in the 1970 Amendments to the Clean Air Act. Congress required that USEPA establish health and welfare based National Ambient Air Quality Standards (NAAQS). These served as the basis of addressing the outdoor air pollution problem. EPA was to set primary (those addressing public health) and secondary (those addressing environmental impacts standards). The NAAQS are not enforceable per se, however, certain state implementation plan regulations are linked to achieving compliance with them and whether new sources or expansion of existing sources are affected by whether the locality in which the development is located in is in compliance with them.

There are six, air pollutants, known as criteria pollutants, which are subject to the NAAQS. They are: Ozone (O3), Particulate Matter (PM), Carbon Monoxide (CO), Sulfur Dioxide (SO2), Lead (Pb) and Nitrogen Dioxide (NO) and are to be controlled within the air shed. Section 109 of the Act outlines the process for adopting NAAQS. Briefly stated, USEPA is to propose primary⁶and secondary NAAQS at the time the air quality criteria are issued and the NAAQS will be finalized only after consideration of public comment. The Act requires a five year review of the latest data for each criteria pollutant.

The implementation of the requirements of the Clean Air Act program rules and permit restrictions has been largely delegated to the states or to units of local government. Each has limited flexibility in establishing its air rules as part of its regulatory structure provided they are designed to achieve the NAAQS' established by USEPA and described above. The local air rules are codified in each jurisdiction and submitted to USEPA for approval as part of the State Implementation Plan (SIP) described and authorized at Section 110 of the Clean Air Act.

USEPA reviews the individual SIPs and determines whether or not the SIP will achieve compliance with the NAAQS and whether the SIP will interfere with the efforts of another state. In the event that a SIP is rejected by USEPA, or in the event that the state opts out of the federal regulatory program, then USEPA will prepare a Federal Implementation Plan (FIP) and apply the FIP rules to sources within that jurisdiction.

Section 110(k)(5) of the Clean Air Act authorizes USEPA to call for a SIP revision (referred to as a "SIP Call") whenever USEPA determines that the existing SIP is "substantially inadequate to attain or maintain the relevant [NAAQS]" or is not adequate to mitigate interstate transportation of pollutants, or is not adequate to comply with the Clean Air Act in general.

The USEPA next determines whether the NAAQS is attained in the various air quality control regions (AQCR). NAAQS are enforced in non-attainment areas through the implementation of emission limits on the sources within the AQCR. These limits are established through a state's implementation plan (SIP).

A SIP is a USEPA approved strategy proposed by a state and may include state statutes, rules, fuel formulations, transportation control measures, emission inventories and local ordinances. A SIP is designed to prevent deterioration in attainment areas and reduce criteria pollutants in non-attainment areas.

Non-attainment area SIPs must implement reasonably available control measures (RACM) as expeditiously as possible. Attainment was to be achieved no later than five years from the non-attainment designation, although USEPA is authorized to extend the date. Additional obligations include reasonably available control technology standards (RACT), a plan for meeting the standards by the attainment date, a comprehensive inventory of actual emissions from all sources, quantification of emissions that will be allowed from new or modified sources, a permit program, enforceable emission limits and other control measures and contingency measures should the standards not be met.

If an area fails to reach attainment, then the state must submit a SIP revision and include additional measures as...