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
NSR
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
Redesignation
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
Application
Provisions not allowed
Specific FIPs
Clean Air Interstate Rule (CAIR)
Purpose
Prohibit one state from harming attainment & maintenance in another
Reduce impact on fine particulates
Reduce impact on 8-hour ozone
Requirements
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)
Purposes
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
Permits
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
loading…
Existing units
loading…
Standards for each category required
Basis for standards must be…
loading…
Permits
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
Definition
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
loading…
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
Permits
Permit required
Permit program
State/federal responsibility
Violations
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
Nomenclature
“NSR” means…
Sometimes NSR used for both PSD & nonattainment
Sometimes NSR used only for nonattainment
“PSD review” means…
“NNSR” means…
PSD NSR
Sources of legal requirements
CAA Part C
Rules on SIP requirements
Rules on FIP requirements
SIP requirements and FIP requirements similar
Requirements
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
Parks
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
NAAQS
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
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
Ozone
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
loading…
Construction allowed in portion of area with NSR plan
Balances environmental & economic considerations
Acid deposition control
Permits
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
Procedures
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
Enforcement
Same as for motor vehicle emission standards
Preemption
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
Aircraft
Clean fuel vehicles
Stratospheric ozone
Rule violating post-Protocol agreements not invalid
International Protocol “decisions” are not “law”
Global warming
Methane
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
Rules
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)
Permits
Recordkeeping, inspections, monitoring & entry (RIME)
RIME authority may be delegated to state
Delegated authority still federally enforceable
Judicial review
Standing
Constitutional standing
Generally
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
Traceability
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
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
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
Availability
Direct (preenforcement) review
CAA judicial review provision
Actions reviewable
Actions specifically listed
Conclusion
Notes
See Also
References and Further Reading
About the Author/s and Reviewer/s
Author: international
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