By Legal Map

Browse the Encyclopedia of Law by Legal Map

Serious areas

Best available control measures (BACM)

BACM more strict than reasonable available control measures (RACM)

BACM not defined in CAA

EPA specified process for determining BACM

Develop inventory of sources

Determine which sources most significant

Evaluate effect of PM-10 from various sources

Evaluate feasibility of control measures

Evaluate costs, energy & environmental impacts

Determine economic feasibility

Economic feasibility means technology has been used without unreasonable economic impact

Reasonable evaluation of feasibility and costs sufficient

BACM determination appropriate where process followed

Actual control effectiveness information not required

4 years to implement


Demonstration regarding attainment

Attainment by applicable date

Impracticability of attainment by applicable date & attainment by alternative date

State must seek extension

Revision where attainment date missed

5% annual reduction

SOx, NO2 & lead

SIP requirements for SOx

SIP requirements for NO2

NOx cap & trade not substitute for RACT

SIP requirements for lead

Relationship between general & pollutant-specific provisions

Specific provision controls

Specific provisions not merely supplementary

Specific provisions leave EPA less discretion

Interpretation maximizing EPA discretion invalid

Sanctions for failure to submit or implement

Consequences of failure to attain

EPA to determine nonattainment

EPA to publish notice of failure to attain

Next step depends on pollutant & area class

Failure to attain ozone standard.

Ozone areas classified as marginal, moderate, or serious

Area is reclassified to higher classification

Ozone areas classified as severe

Must meet progressively more stringent restrictions

Ozone areas classified as extreme.

Failure to attain CO standard.

CO areas classified as moderate

Area is reclassified as serious

CO areas classified as serious.

Failure to attain PM-10 standard.

PM-10 areas classified as moderate

Area is reclassified as serious

Must meet best available control measures (BACM)

PM-10 areas classified as serious.

State to submit revised SIP

Revision must provide 5% reduction per year

Revision must require all feasible measures

Rules as to requirement of all feasible measures

Other cases.

Applies to…

State to submit revised SIP

Revision must meet regular measures for SIP

Revision must require all feasible measures

“All feasible measures” means…

Applies to each part

New attainment date assigned

See also contingency measures in SIP

Effect of relaxation of national ambient air quality standard (NAAQS)

Anti-backsliding provisions

Also apply where NAAQS made more stringent

Prevent state from getting out of nonattainment program due to noncompliance

Apply to nonattainment new source review (NSR)

Apply to penalties for violations

Apply to rate-of-progress milestones

Apply to contingency plans

Apply to motor vehicle emissions budgets

Maintenance plans

Required for area redesignated as attainment


Maintenance for 10 years required

Provisions to correct violations required

Provisions need not guarantee corrections

Requirement for “specific measures” does not apply

Provisions to implement all measures required

“Measures” excludes nonattainment new source review (NSR)

May require further state action

Plan must consider possible changes in circumstances

Need good data and good models

Maintenance plan amends SIP

Need not meet all requirements for underlying SIPs

SIP is for nonattainment area and maintenance plan for attainment area

Need not use photochemical grid modeling or equivalent

New source review (NSR) for nonattainment areas

NSR generally

Nonattainment NSR

Federal compliance

Federal assistance limited to activities in conformity to SIP

Financial assistance requires conformity

Licenses require conformity

Permits require conformity

Approval requires conformity

Support of transportation activities requires conformity

Does not address SIP approval requirements

Transportation planning

Conformity means…

Conforms to purpose of reducing violations

Does not contribute to new violations

Does not cause increase in existing violations

Does not delay attainment or required reductions

Conformity determination required

Not if prior environmental analysis

Not if emissions below threshold amount

“Direct emissions” means…

Regulations not direct cause

“Indirect emissions” means…

Need for agency authority

Federal enforceability

All EPA-approved SIP provisions federally enforceable

Stricter state standards federally enforceable

Stricter state standards enforceable in citizen suit

Source remains obligated despite state’s saying it will not enforce

Permit issued under SIP not too vague to enforce

Felony enforcement of SIP permit that preceded 1990 amendments allowed

Federal implementation plans (FIPs)

When promulgated

Within 2 years of…

State did not make submission

State submission incomplete

Criteria for completeness in rules

State plan disapproved

Not if SIP approved first

Promulgation mandatory


Provisions not allowed

Specific FIPs

Clean Air Interstate Rule (CAIR)


Prohibit one state from harming attainment & maintenance in another

Reduce impact on fine particulates

Reduce impact on 8-hour ozone


Emission reductions in upwind states

Applies to SO2 emissions

Two phases: 2010 & 2015

Applies to NOx emissions

2 phases: 2009 & 2015

Interstate trading programs

Acid rain prevention SO2 cap-and-trade program

Tribal implementation plans (TIPs)

Tribes may enact tribal implementation plans (TIPs)

EPA may treat tribe as state

EPA promulgated regulations specifying that such treatment is appropriate

The tribe has a sufficient governing body

The functions will be exercised to protect resources within tribal jurisdiction

The tribe is capable of carrying out the functions

EPA determined tribes have authority to enact TIPs

Tribes not required to meet SIP submittal deadlines

EPA may enact a federal implementation plan (FIP)

Allowed if tribal implementation plan (TIP) does not meet completeness criteria

Criteria for SIP do not apply

EPA has discretion to determine what is needed to protect air quality

EPA must enact regulation with necessary requirements

New source performance standards (NSPSs)


NSPSs to provide more stringent regulation

Regulated sources

New sources are regulated

“New source” is one begun after proposed regulations published

Modified sources are regulated

“Modification” means…

Requires physical change & increase in emissions

Physical change required due to technical approach of NSPS provisions

Different approach than in prevention of significant deterioration (PSD) provisions

Increase in emissions for NSPS means increase in emissions rate

Existing sources regulated

Regulated pollutants

Pollution control requirements

New sources

Standards of performance

Standards of performance apply

“Standard of performance” means…

Design, equipment, work practice, & operational standards

Permitted if standard of performance infeasible

Must be based on best technology adquately demonstrated

Must provide continuous emission reduction

Must include operation and maintenance requirements

Existing sources

Apply to non-criteria pollutants only

Do not apply to hazardous air pollutant (HAP) regulated sources

Procedure for regulating shall be set by regulation

Remaining useful life may be considered


State/federal responsibility

Solid waste combustion

Relation to other regulatory provisions

Relation to NSPSs

Requires NSPSs for new solid waste combustion units

Requires NSPS emissions guidelines for existing solid waste combustion units

Removes EPA discretion

Relation to hazardous air pollutants (HAPs)

Virtually identical

Difference in sources covered

Difference in pollutants regulated

Dual regulation prohibited

Solid waste combustion regulation preferred

Regulated sources

“Solid waste incineration units” regulated

Restrictive definition of commercial and industrial solid waste incinerators (CISWIs) invalid

Exclusion contradicts CAA plain meaning

“Solid waste incineration unit” means…

Certain facilities expressly excluded

Materials recovery facilities excluded

Small power production facilities excluded

Cogeneration facilities excluded

Air curtain incinerators excluded

Certain facilities expressly included

Municipal waste incinerators (MWIs) included

Hospital waste, medical waste, and infectious waste incinerators (HMIWIs) included

Industrial and commercial waste incinerators (ICWIs) included

Other categories of solid waste incinerators (OSWIs) included

Regulated pollutants

Regulated pollutants are…

Regulation of surrogate substances allowed

Pollution control requirements

Performance standards & other requirements required

New units


Existing units


Standards for each category required

Basis for standards must be…



State/federal responsibility

Hazardous air pollutants (HAPs)

Regulated sources

Major sources

“Major source” means…

All sources in plant site count

Similar industrial classification not needed

Alabama Power does not apply

Alabama Power relates to prevention of significant deterioration (PSD) program

Different congressional intent as to HAPs

Fugitive emissions count

“Controls” means…

“Potential to emit” means…

Consider only effective controls

Must consider controls enforceable by state

EPA requires “federally enforceable” controls but interprets this broadly

EPA must list major sources

Low-risk subcategory not allowed

Subcategory for facilites with high compliance costs not required

EPA may delete a source category

EPA may not delete source subcategory

Subcategory is subset of category

EPA must regulate listed major sources

Maximum achievable control technology (MACT) required for all major sources

Area sources

“Area source” means…

EPA must list some area sources

Threat from individual sources or aggregate of sources counts

EPA must identify at least 30 HAPs

Must cover 90% of area source emissions

Categories or subcategories to be listed

List based on aggregate emissions

Consider actual or estimated emissions

EPA must regulate listed area sources

Regulation of area sources of most dangerous HAPs mandatory

Must regulate area sources of 7 specified HAPs

Generally available control technology (GACT) required for some

No standard for some

Regulated pollutants


Initial list

Revision of list

Addition of criteria pollutants prohibited

Precursors of criteria pollutants may be listed

Addition of lead specifically prohibited

Petitions to modify list

Burden on petitioner

Benchmark dose (BMD) methodology appropriate

Criteria pollutant may be regulated as surrogate

Regulation of surrogate allowed

Pollution control requirements

Emission standards

“Emission standard” means…

Continously applicable standard

Emission standard for surrogate allowed

Criteria pollutant may be regulated as surrogate

Standards required for major & area sources

Basis of standards

Maximum achievable control technology (MACT) required: all listed major sources

“MACT” means…

Emission floor imposed

New sources – best controlled similar source is floor

Existing sources – average emissions of best performing group is floor

Best group for categories with at least 30 sources is…

Test not dictated by statute

Best group for categories with fewer than 30 sources is…

Emission floors need not be achievable by all sources

Definition of “best performing” reversed

Excluding sources from best disallowed

Any means to comply with floor allowed

Emission floor required for all sources categories that emit HAPs

Floor required even if no technology currently controls HAPs from particular source category

Use of worst performing sources using best technology limited

Emission floor not based on technology alone

Consideration of raw material required

Difficulty of obtaining different raw material irrelevant

Effect of different raw material on product irrelevant

Emission reduction factors need not be deliberate

Floor based on technology alone allowed when…

Cost irrelevant in setting emission floor

MACT is stricter than emission floor if achievable

Process for setting MACT

Set emission floor for each pollutant & source category

Emission floor

Determine if stricter limit achievable

EPA must consider factors set out in statute


Standard must be applicable continuously

Standard must apply during startup, shutdown and malfunction (SSM)

“Major source” means…

Generally available control technology (GACT) or management practices allowed: area sources

Standards less rigorous

“Area source” means…

MACT required: listed area sources not subject to GACT or management practices

Area and listed sources

No standard: unlisted area sources

Definition of area sources & listing requirements

Health & environment standards: revisions

Revision in 8 years to protect health & environment mandatory

Distinctions among sources

Distinctions among various types of sources allowed

Delay in compliance date not allowed

Standards must be revised if…

Revision in 8 years to protect health & environment mandatory

Not required if Congress acted

9 years allowed in some cases

Revised standard must provide ample margin of safety

More stringent standard allowed

Revision to reduce cancer risk mandatory

Sources must meet emissions standards

EPA must set compliance date

Compliance date within 3 years

3 year period begins on effective date of emission standard

3 year period does not run from change in reporting requirements

EPA need not allow variances from compliance date

Some extensions mandated by statutue

Existing sources that installed control technology prior to standard get extension

Sources begun after proposal get 10 year extension

Coke oven batteries get extension

Some extensions allowed by statutes

1 year extension allowed to install controls

EPA authority to give extensions limited

3 year extension allowed for mining waste operations

2+ year presidential extension allowed

Work practice, operation, equipment, & design standards

Permitted if emission standard is not feasible

Emission standard “not feasible” if emissions cannot be captured

Emission standard “not feasible” if emissions not measurable

Lack of emission data not enough

Must be consistent with requirements for emissions standards

Design & equipment standards must include operation & maintenance

Rulings on specific work practice standards

Work practice standard for asbestos constitutional

Work practice standard for asbestos satisfies “aggregation principle”

Despite individual source’s lack of substantial effect on interstate commerce

The “aggregation principle”

Requirement of clean burning fuels for ceramic kilns invalid

Lack of emission data not enough to justify using work practice standard

Monitoring requirements

Enhanced monitoring and reporting required for major sources


Permit required

Permit program

State/federal responsibility


Administrative finding of asbestos violation affirmed

Brake relining regulated

Visible observation of any emissions violates asbestos standard

New source review (NSR)

Parts of program

2 parts: PSD & nonattainment review

Many provisions in common

Four sets of regulations

PSD NSR in state implementation plans (SIPs)

PSD NSR in federal implementation plans (FIPs)

Nonattainment NSR in state implementation plans (SIPs)

Construction moratorium for nonattainment areas w/o state implementation plans (SIPs)

Not absolute


“NSR” means…

Sometimes NSR used for both PSD & nonattainment

Sometimes NSR used only for nonattainment

“PSD review” means…

“NNSR” means…


Sources of legal requirements

CAA Part C

Rules on SIP requirements

Rules on FIP requirements

SIP requirements and FIP requirements similar


Purposes of program

Protect health & welfare

Protect parks

Insure manner of economic growth

Balancing economic growth and clean air preservation

Protect other states

Assure informed decisions

Prevent exceeding PSD increments or violating national ambient air quality standards (NAAQSs)

“Attainment” means…

“Unclassifiable” means…

Regulated areas

Attainment and unclassifiable areas regulated

“Attainment” means…

“Unclassifiable” means…

Regulated areas assigned to Class I, II, or III

Class I


State redesignation allowed

Class II

Non-park areas

State redesignation allowed

Class III

State redesignation allowed

Regulated sources

New sources

Must be new & major emitting facility

“Major emitting facility” means…

Listed facility that emits 100 tons

Determining whether facility is listed

Look at primary activity

Use Standard Industrial Classification (SIC) Manual to determine primary activity

Embedded facility may be listed facility

Gasifier may be treated as part of non-listed facility and not part of embedded listed facility

Determinations in specific cases

Refuse-to-fuel facility not listed facility

Meaning of “potential to emit”

Source’s potential to emit depends on controls enforceable by federal, state, or local government

Source’s potential to emit cannot depend only on controls enforceable by federal government

Compare to definition of “potential to emit” for hazardous air pollutants (HAPs) program

Health & Education exception

Special rule for ozone

Non-listed facility that emits 250 tons

Meaning of “potential to emit”

Health & Education exception

Special rule for ozone

Only emissions of a “regulated NSR pollutant” count

“Regulated NSR pollutant” means…

Fugitive emissions count only for sources in special list

List different form major emitting facilities list

Changed source may be major stationary source

“New” means constructed after 1977

Distinction between new & old sources justified

Regulation of modified sources serves this justification

Modified sources

Major modifications of existing major stationary sources

“Major modification” means…

Physical change or change in method of operation

Changes excluded

Routine maintenance, repair and replacement

Use of alternative fuel or raw material

Increased hours of operation or production rate (6 authorities)

Running plant closer to maximum capacity is within exclusion

Change in ownership

Clean coal technology demonstration projects

Reactivation of a very clean coal-fired electric utility steam generating unit

Changes included

Physical change enabling increased output included

Regulated NSR pollutant

“Regulated NSR pollutant” means…

Meaning same for state implementation plans (SIPs) and federal implementation plans (FIPs)

Significant emissions increase

“Significant emissions increase” means…

No increase in emission rate needed

Significant volatile organic compound (VOC) or nitrogen oxide (NOx) increase is significant for ozone

Significant net emissions increase

“Net emissions increase” has two components

Calculating first component

Methods defined in rules

Use reasonably assumed increase in operational hours.

Calculating second component

“Actual emissions” means…

Use parameters in regulation in calculating actual emissions.

Time period can be varied.

Annual emissions increase and not hourly rate of emissions counts

Avoid incentive to increase hours of operation rather than make physical modification

Avoid incentive to renovate rather than replace old plants

Actual emissions and not potential emissions count

Do not assume 24 hours/day operation

Emissions increase from change in operation hours or production rate counts only if construction-related

Emissions increase without physical change or change in method of operation excluded

“Significant net emissions increase” means…

Use specified numerical rate for pollutants listed in regulation

Regulation of modified sources justified

Difference between PSD and new source performance standard (NSPS) approach to modification valid

Different approach than in NSPS provisions

NSR different from new source performance standards (NSPS)

Regulatory definition not normally incorporated into statute

Regulated pollutants

Only sources emitting a “regulated NSR pollutant” regulated

Only emissions of a “regulated NSR pollutant” subject to best available control technology (BACT)

“Regulated NSR pollutant” is defined in the regulations

A pollutant regulated under CAA is a “regulated NSR pollutant”

Listed hazardous air pollutants (HAPs) excluded

HAPs exclusion does not apply to criteria pollutant constituents

Municipal waste combustor (MWC) emissions excluded unless from MWCs

Non-criteria pollutants regulated under new source performance standards (NSPSs) included for all sources

Emission limitations

BACT required.

“BACT” means…

Recycling not necessarily BACT for incinerator.

Top down approach to determining BACT allowed.

Must quantify effectiveness of technology.

Data sufficient to establish NSPS may not be enough for BACT for PSD.

Does not include project redesign.

Design adjustment required by clean fuels not “redesign.”

Switch to nuclear fuel is project redesign.

Switch from local to distant fuel source is project redesign.

Bubbles or offsets limited.

Desire to support a company’s project irrelevant.

Only emissions of a “regulated NSR pollutant” subject to BACT.

“Regulated NSR pollutant” means…

Increase in ambient pollution concentration limited.

Increase allowed set out in regs

Increase expressed in annual arithmetic mean

Allowed increase sometimes set as short term maximum.

Short term maximum excedence allowed

NAAQS violation prohibited


Violation of other standards prohibited.

As strict or more strict than NSPS and HAPs

Less strict than for nonattainment program.

Preconstruction review & permits

Facilities that must obtain permits

Major emitting facility constructed or modified in PSD area must have permit

Newly constructed facilities

Modified facilities

Areas Affected

Prerequisites to obtaining permit

Facility must undergo preconstruction review.

Preconstruction review includes public hearing

Applicant must show emissions will not exceed allowed amount.

First amount is maximum increase allowed for PSD areas.

Causing increase in ambient pollution concentration limited.

Second amount is NAAQS in any region.

NAAQS violation prohibited

Third amount is any other applicable standard.

Facility must be subject to BACT.

Meaning of BACT requirement

Administrator approval required in specific cases.

Statutory provisions protecting Class I areas must be met.

Areas classified as Class I

Air quality impact has been analyzed.

Applicant must agree to conduct monitoring.

Permit content

Permit must require BACT.

BACT requirement explained.

Procedure for obtaining permit

Permit application filed.

Permit application transmitted to EPA.

Proposed permit reviewed.

An analysis is required.

Ambient air quality to be analyzed.

State or local government may perform analysis.

The facility may perform analysis.

EPA may review BACT in permit.

Reasoned analysis required.

EPA need not challenge permit in state court.

Public hearing held.

EPA must consider alternatives.

BOP on permit applicant

Permit application must be granted or denied within one year

“Complete” means…

PSD permits upheld or invalidated on judicial review

Permits for construction of power plants

Permit upheld

Permits for construction of solid waste incinerators

Permit upheld

State/federal responsibilities

Federal government sets parameters

State develops state program & issues permits

EPA reviews state program

EPA reviews state permits

EPA may review BACT in permit

Unsupported BACT determination is unreasonable

EPA can enforce against violations of PSD program

Enforcement by federal government under CAA

See also PSD requirements in SIPs

Nonattainment NSR

SIP has NSR provision

General provisions

Regulated areas

Nonattainment areas regulated.

Nonattainment means

Regulated sources

New sources

Must be new & major stationary source

“Major stationary source” means…

Any source that emits 100 tons

Exceptions to the requirement of 100 tons/yr

New sources of ozone in serious ozone nonattainment area

New sources of ozone in severe ozone nonattainment area

New sources of ozone in extreme ozone nonattainment area

New sources of ozone in ozone transport region

New sources of CO in certain serious CO nonattainment areas

New sources with of PM-10 in serious PM-10 nonattainment areas

Fugitive emissions don’t count

They count for listed sources

They count for sources regulated under NSPS or HAP

Potential to emit means maximum capacity to emit

Special rule for ozone

Modified sources

Major modifications subject to NSR

Meaning of major modification

Change in major stationary source

Physical change

Change in method of operation

Resulting in emissions increase

Significant increase in NSR pollutant

Significant net emissions increase

Different definitions for nonattainment & NSPS

Regulatory definition not normally incorporated into statute

Regulated pollutants

Pollution control requirements


LAER means…

Most stringent SIP limitation achievable.

Most stringent limitation achieved in practice.

NSPS limtation.

Emission offsets

From non-major new sources & proposed source

By the time operation begins

Enough for reasonable further progress

“Reasonable further progress” means…

Demonstrated compliance by other sources.

No inadquate implementation determination.

Benefits exceed costs.

Stricter than PSD program.

Pollution control requirements for getting permit

Preconstruction review & permits

State permit required

SIP must designate state permitting agency.

State/federal responsibilities

Pollutant-specific provisions


Area classification

Marginal area NSR

NSR required.

General nonattainment NSR provisions

VOC offset ratio 1.1 to 1.

Moderate area NSR

NSR required.

VOC offset ratio 1.15 to 1.

Serious area NSR

NSR required.

New sources with lower emissions subject to NSR

Otherwise requirement applies only to larger sources.

More modified facilites subject to NSR.

De minimis exception limited.

Limited exception is….

VOC offset ratio 1.2 to 1.

Severe area NSR

New sources with lower emissions subject to NSR

VOC offset ratio 1.3 to 1

Ratio 1.2 to 1 in some cases.

“BACT” means…

Extreme area NSR

New sources with lower emissions subject to NSR

Any change is modification requiring NSR.

Not modification for offset purposes if…

Does not apply to required equipment installation.

No de minimis exception.

VOC offset ration 1.5 to 1

Ration 1.2 to 1 in some cases.

Ozone transport region

Ozone transport region covers northeast United States

Other ozone transport regions may be established

New sources with lower emissions subject to NSR

Not for severe or extreme nonattainment area

Carbon monoxide (CO)

Moderate area NSR

Serious area NSR

New sources with lower emissions subject to NSR

Only if stationary sources contribute signficantly to CO levels.

Particulate matter (PM-10)

Moderate area NSR

Serious area NSR

New sources with lower emissions subject to NSR

SOx, NO2 & lead

SIP does not have NSR provision

Construction moratorium

Emission Offset Interpretative Ruling allows construction


Construction allowed in portion of area with NSR plan

Balances environmental & economic considerations

Acid deposition control


Operating permits

Sources affected

“Affected sources.”

“Affected source” means…

Major sources.

“Major source” means…

General CAA definition.

HAPs definition

Contiguous sources qualify.

Sources regulated under NSPS.

Sources subject to NSPS are…

Sources regulated under hazardous air pollutants (HAPs) program

Sources regulated under HAPs are…

Sources needing permits under PSD program.

Sources needing permits under nonattainmnet program.

Other stationary sources designated by regs.

Procedure for establishing permit program

EPA sets program requirements.

Procedure for getting permit

Permit application to state.

State proposes permit.

State prepares final permit.

State forwards material to EPA.

EPA reviews

Public may petition for objection.

Permit requirements

Relation to NSR

Construction permits

New source review for nonattainment & PSD.

See also preconstruction review of sources not covered by nonattainment & PSD.

Mobile sources

Motor vehicle emissions

Emission standards

New motor vehicles & engines

Regulated pollutants

Vehicle emissions of pollutants that endanger public health must be regulated

This is two step test

Does pollution endanger public health or welfare

Distinguish “pollution” from “pollutant”

Does air pollutant cause or contribute to this air pollution

Distinguish “pollution” from “pollutant”

Realm of the Administrator’s “judgment” limited

Regulation mandatory upon finding endangerment

Existence of other programs does not remove obligation

President’s foreign affairs authority does not prevent regulation

Even if emissions regulation is inefficient

Uncertainty does not remove obligation

Effect on fuel economy does not remove obligation

EPA authorized to regulate greenhouse gas emissions

EPA proposes finding that greenhouse gases meet test

These greenhouse gases are…

Basis of standard

Must reflect reduction achievable

Through cost-effective technology

Can be technology-forcing

EPA need not solve engineering problems

EPA needs plausible reasons for finding technology can be developed


Sources regulated

Regulatory requirements

Requirements vary by vehicle type

EPA may set standards affecting fuel economy

EPA may set fuel economy standards for greenhouse gas

Burden not on EPA to harmonize with Department of Transportation (DOT) standards

Department of Transportation (DOT) must adapt to EPA standards

Tailpipe emission standards

Light duty vehicles (LDVs) & light duty trucks (LDTs) up to 6,000 lbs

Light duty vehicles (LDVs) & light duty trucks (LDTs), 6,000 to 8,500 lbs

Medium duty passenger vehicles, more than 8,500 lbs

Heavy duty trucks & buses, more than 8,500 lbs

Evaporative emission controls

Averaging, banking & trading (ABT)

Allowed under mobile source authority

Cross-class averaging allowed

Testing & certification

Onboard diagnostic systems

Nonroad vehicles & engines

Vehicles included

“Nonroad vehicle” means…

Types of vehicles are…

Procedures for promulgating regulations

Regulation of carbon monoxide (CO), nitrogen oxide (NOx), & volatile organic compounds (VOCs)

Regulation mandatory if class contributes to CO or ozone nonattainment in more than one area

Determination of classes and categories

EPA defines classes or categories

Different groupings for different pollutants allowed

Compliance cost not relevant

Grouping snowmobiles with other land-based recreational vehicles allowed

Grouping large mining equipment with other equipment allowed

Determination that there is a contribution

Significant contribution not required

Bologna means bologna

Source operation in nonattainment area shows contribution

No need for modeling

No need to show contribution to specific polluted area

May rely on estimates to determine contribution

Actual emissions measures not required

Snowmobiles are not contributing source for ozone

Determination that an area is nonattainment

Whether area is nonattainment depends on its designation

Status changes on redesignation

Designation & redesignation of nonattainment areas

Standards must require achievable emission reductions

Must consider standards equivalent to those for comparable motor vehicles

Snowmobiles not comparable to automobiles

Can set snowmobile standards without considering auto standards

Standards are technology forcing

Not limited to current technology

Consideration of cost also required

Cost consideration for large mining engines adequate

EPA not required to prohibit more polluting models

EPA must explain decision

Standard may require compliance by certain percentage of vehicles regulated

EPA must explain choice of percentage

Standards need not maximize energy conservation or noise reduction

Analysis based on different type source allowed

Regulation of other pollutants

Regulation permitted if…

Certainty of harm not required

Aesthetic harm is harm to public welfare

Regulation of carbon monoxide (CO), nitrogen oxide (NOx), & volatile organic compound (VOC) emissions not allowed under this provision

Gap in authority recognized

Regulation of hyrdrocarbons (HCs) allowed

Not if surrogate for volatile organic compound (VOC) regulation

May regulate contributing sources

Standards must be based on available technology


Same as for motor vehicle emission standards


Types of state regulation preempted/not preempted

New motor vehicle emission standards preempted

California may get waiver of preemption

New motor vehicle emission standards waiver

Other states can adopt California standards

California new motor vehicle emission standards in other states

Market participation doctrine applies

Market participation doctrine

Meaning of terms

“New” means not yet sold

Includes period soon after sale

“Standard” means…

Standards are quantitative limitations

“Standards” means quantitative limitations or technology requirements

Sales mandates are standards

Purpose is to effect quantitative reduction

Standards are measures intended to lower emissions

Who must comply irrelevant as to whether a requirement is a standard

What is included/excluded

Emission standards for used vehicles not included in preemption

State government procurement requirements not included in preemption

Market participation doctrine applies

Market participation doctrine

Market participation doctrine protects procurement requirements from preemption

Mandate to sell zero emissions vehicles (ZEVs) included in preemption

Vehicle & engine parts standards preempted

Does not apply to California if it has waiver

New motor vehicle emission standards waiver

Nonroad vehicle & engine standards & other requirements preempted

For small new engines for construction & farm equipment–expressly preempted

No waiver

For new locomotives & engines–expressly preempted

No waiver

For other nonroad vehicles & engines–impliedly preempted

No express preemption

Premption implied

Applies to new & used nonroad sources

California may get exception

Nonroad vehicle & engines exception

Other states can adopt California standards

California nonroad vehicle & engines standards in other states

Preemption of standards applies to quantitative limitations

Regulations limiting emissions from engines are preempted

Even if source can comply by switching fuels

In-use regulations for nonroad sources not included in preemption

Rule limiting emissions to that obtained with specific fuel is not in-use standard

Use, operation, movement controls not preempted

Rule limiting emissions is not use requirement

California waivers/exceptions

New motor vehicle emission standards waiver

California waiver required if statutory requirements met

California determination arbitrary & capricious

California judgment gets deference

Standards not needed to meet compelling circumstances

Standards inconsistent with CAA technological feasiblity requirements

EPA must consider cost of compliance

EPA must consider technological feasibility

Crankcase emission standards not included

Not every feature must be as stringent as federal standards

Purpose to deal with unique problem

Purpose to allow innovation

California standards sometimes federally adopted

No violation of dormant Commerce Clause

No violation of executive foreign policy power

No preemption by Energy Policy and Conservation Act (EPCA)

California standard becomes government standard under EPCA

Nonroad vehicle & engines exception

California must be given exception if statutory requirements met

No exception for small new engines for construction & farm equipment standards

No exception for new locomotive & engines standards

The 4 requirements for authorization are…

California determines its standards are “at least as protective”

California determination not arbitrary & capricious

Standards meet compelling need

Consistency with CAA section

Applies to new & non-new engines

Adoption of California regulations by other states

New motor vehicle emission standards

Other states can adopt California standards for nonattainment areas

Must be identical to California standards

California agreements with manufacturers are not standards

Other states cannot adopt California agreements as law

Only if California gets waiver

No creation of “third vehicle”

2 year lead required

Energy Policy and Conservation Act (EPCA) does not preempt adoption of California standards by other states

No express preemption

No field preemption

No conflict preemption

Executive foreign policy power does not displace this

Basis is balance of state and manufacturer interests

Nonroad vehicle & engines standards

Other states can adopt California standards in nonattainment areas

2 year lead required

Fuel regulation

When authorized

Prevent injury to health or welfare

Ultra-low sulfur diesel fuel not justified on this basis

Protect emission control systems

Ultra-low sulfur diesel fuel standard justified

Air toxics

Hazardous air pollutant regulations required

Vehicle regulations apply to new vehicles

Generally not for in-use vehicles

“Hazardous air pollutant” not defined by hazardous air pollutants list

Listing of hazardous mobile source pollutant not ripe for review

Regulations to be promulgated according to given procedure

EPA to perform air toxics study

Study to cover need to control emissions

Study to cover means of control

Study to cover riskiest unregulated pollutants

Study to include benzene, formaldehyde, & 1,3 butadiene

Inadequate study does not impair regulation validity

Regulations must be based on study

Need not be based exclusively on study

Inadequate study does not impair regulation validity

Regulations must be promulgated under authority indicated

Must contain reasonable control requirements

Decision to omit onboard diagnostic (OBD) for heavy duty vehicles not justified

Must contain greatest emission reduction standards achievable

Capping emissions at past levels allowed

Rule designed for short term results allowed

Must be consistent with other standards

Must apply to benzene & formaldehyde emissions

Standard aggregating five chemicals allowed

Parties regulated

Vehicle owners not main objects of regulation


Clean fuel vehicles

Stratospheric ozone

Rule violating post-Protocol agreements not invalid

International Protocol “decisions” are not “law”

Global warming


Product regulation

Authority under ozone nonattainment program

Consumer & commercial products covered

“Consumer or commercial product” means…

Regulated fuels & fuel additives excluded

Regulated vehicles excluded

Exclusion applies to non-road motor vehicles

Regulated non-road engines excluded

EPA must follow specific procedure

Conduct study

List product categories

Establish 4 priority categories

Act on 1 category every 2 years

EPA must issue regulations or control technique guidelines (CTGs)

Regulations must require best available controls (BACs)

BACs means…

Types of requirements allowed include…

Technology-based emission standards

CTGs allowed if…

Regulations binding; CTGs not binding

If CTGs, states must submit emission standards

Administrative procedures


Administrative Procedure Act (APA) informal rulemaking

APA informal rulemaking procedures

CAA hybrid rulemaking

Hybrid procedures apply to most national rulemakings

Types of rules affected contained in list

EPA can add to list

Rulemaking docket required

Must contain basis for rule

Must give notice of proposed rulemaking

Must allow public participation

Must give explanation with final rule

State Implementation Plans (SIPs)


Recordkeeping, inspections, monitoring & entry (RIME)

RIME authority may be delegated to state

Delegated authority still federally enforceable

Judicial review


Constitutional standing


In CAA judicial review cases

Injury in fact

State protecting quasi-sovereign or property interest has standing

Threat to state’s coastal property is injury in fact

Injury can be present even if national ambient air quality standards (NAAQSs) met

EPA decision that permit program does not apply causes procedural injury

Small statistical increase in risk sufficient

No injury if only stricter state measures cause alleged harm

Injury in fact in citizen suit cases


No traceability if agency did not rely on challenged rule

No traceability when agency action that caused harm preceded action challenged

Traceability in citizen suit cases


Redressability absent when action complained of preceded action challenged

Redressability absent if agency did not rely on challenged rule

Redressability in citizen suit cases

Associational standing

Standing of a member

Associational standing met by member allegations

Industry member has standing to challenge requirements for state implementation plan (SIP) approval


Germaneness shown where….

Need for participation of member

Prudential standing

Interest arguably within zone of interests required

Zone of interests test

Interpret protected interests broadly

Avoiding anticompetitive injury is protected interest


Direct (preenforcement) review

CAA judicial review provision

Actions reviewable

Actions specifically listed



See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international






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