Clean Air Act

Purpose and Organization

On November 15, 1990, President Bush signed into law sweeping revisions of the Clean Air Act (CAA). The new law contains titles that:

• strengthen measures for attaining air quality standards (Title I),
• set forth provisions relating to mobile sources (Title II),
• expand the regulation of hazardous air pollutants (Title III),
• require substantial reductions in power plant emissions for control of acid rain (Title IV),
• establish operating permits for all major sources of air pollution (Title V),
• establish provisions for stratospheric ozone protection (Title VI), and
• expand enforcement powers and penalties (Title VII).

The CAA Amendments will have far-reaching effects not only on environmental activities at DOE facilities, but also on procurement, maintenance, and motor vehicle operation activities.

National Ambient Air Quality Standards

The original 1970 CAA authorized EPA to establish National Ambient Air Quality Standards (NAAQS) to limit levels of pollutants in the air. EPA has promulgated NAAQS for six criteria pollutants: sulfur dioxide (SO2), nitrogen dioxide (NO2), carbon monoxide (CO), ozone, lead, and particulate matter (PM-10). All areas of the United States must maintain ambient levels of these pollutants below the ceilings established by the NAAQS; any area that does not meet these standards is a "nonattainment" area (NAA).

The 1990 Amendments require that the boundaries of serious, severe, or extreme ozone or CO nonattainment areas located within Metropolitan Statistical Areas (MSAs) or Consolidated Metropolitan Statistical Areas (CMSAs) be expanded to include the entire MSA or CMSA unless the governor makes certain findings and the Administrator of the EPA concurs. Consequently, all urban counties included in an affected MSA or CMSA, regardless of their attainment status, will become part of the NAA.

Under previous law "major sources" were those with the potential to emit more than 100 tons per year (tpy). The CAA Amendments reduced the size of plants subject to permitting and stringent retrofitting or offsetting requirements:

• In serious ozone NAAs "major sources" include those with the potential to emit more than 50 tpy of volatile organic compounds (VOCs). In severe ozone NAAs "major sources" include those that emit 25 tpy or, in extreme areas, 10 tpy.
• For serious CO NAAs a "major source" is now one that emits 50 tpy.
• For serious PM-10 NAAs a "major source" is now one that emits 70 tpy.

New Source Performance Standards

The New Source Performance Standards (NSPS) set minimum nationwide emission limitations for classes of facilities. The NSPS are set at levels that reflect the degree of control achievable through the application of the best system of continuous emission reduction that has been adequately demonstrated for that category of sources. The NSPS must take into consideration the cost of achieving such emissions reductions and any non-air quality health and environmental impacts and energy requirements.

The facility classes of most interest to DOE are those applicable to fossil-fuel-fired steam generators for which construction was begun after August 17, 1971 (40 CFR Part 60, Subpart D), and electric utility steam generating units for which construction was begun after September 18, 1978 (40 CFR Part 60, Subpart Da).

Hazardous Air Pollutants

The National Emissions Standards for Hazardous Air Pollutants (NESHAPs) aim to control pollutants that may reasonably be anticipated to result in either an increase in mortality or an increase in serious irreversible or incapacitating, but reversible, illness. Since 1970 EPA has listed only eight hazardous air pollutants and has established standards for only seven. The 1990 Amendments directed EPA to establish technology-based standards for 189 hazardous substances based on the use of "maximum achievable control technology" (MACT).

MACT emission standards may not be less stringent than the average emission limitation achieved by the best performing 12% of existing sources in a similar source category or subcategory. (Note: Neither the phrase "Maximum Achievable Control Technology" nor the acronym MACT appears in the 1990 CAA Amendments. EPA, however, continues to refer to the new technology-based hazardous air pollutant standards as MACT.)

The amendments also authorized EPA to establish a program for the prevention of accidental releases. Owners or operators of stationary sources must prepare and implement risk management plans, which include hazard assessments and release prevention and response programs. The plans must be registered with EPA and the new Chemical Safety and Hazard Investigation Board created by the Amendments.

Acid Rain Control

Title IV of the CAA Amendments described a new market-based system that will result in a permanent 10 million ton reduction in SO2 emissions from 1980 levels. Under this system power plants receive "emission allowances" that will require plants to reduce their emissions or acquire allowances from others to achieve compliance. A number of provisions in Title IV pertain to clean coal technology demonstration projects sponsored by DOE.

Permits

Title V of the CAA Amendments established a federal permitting program, similar to the Clean Water Act permitting program, which is to be administered by the states. Title V declared that after the effective date of any approved or promulgated permit program, it will be unlawful to operate a major source, affected source, or any other source (including an area source) subject to regulation under the CAA unless the source complies with all air quality requirements and has an operating permit. Under previous federal law, construction permits were required only for new sources; existing sources were left largely unpermitted, unless the state elected to require an operating permit. The CAA Amendments eliminated the distinction between new and existing sources; all major sources are now required to have an operating permit.

The new permit program will be fee-based, and federal facilities are explicitly required to pay a fee or charge imposed by a state or local agency to defray the costs of its air pollution regulatory program. The statute sets minimum rates for such fees at $25 per ton of each regulated pollutant, up to 4,000 tpy. The EPA Administrator may set other amounts to adequately reflect reasonable costs of the permit program.

The following sources must have a permit to operate:

• major Hazardous Air Pollutant (HAP) sources,
• major sources under NAAQS,
• all affected sources under Title IV, and
• all sources subject to NSPS.

On July 21, 1992, EPA promulgated a rule [57 Federal Register (FR) 32250] that defined the minimum elements of a state operating permit program. This rule applies directly to the states, but ultimately to sources.

Stratospheric Ozone

Title VI of the CAA Amendments required a complete phase-out of chlorofluorocarbons (CFCs) and halons. EPA must ensure that Class I chemicals are phased out on a schedule similar to that specified in the Montreal Protocol: CFCs, halons, and carbon tetrachloride by 2000 (for CFCs, the Bush administration has moved the deadline up to the end of 1995) and methyl chloroform by 2002 (but with more stringent interim reductions). Class II chemicals [i.e., CFCs that have been chemically altered by the addition of hydrogen (HCFCs) and have considerably lower ozone-depleting potential than Class I chemicals] must be phased out by 2030.

EPA has also promulgated regulations on required reductions and emissions of Class I and Class II substances (57 FR 33754); servicing of motor vehicle air conditioners (57 FR 31242); and required warning labels on containers of, and products containing or manufactured with, certain ozone depleting substances (57 FR 19166). More regulations are expected to follow in the near future.

Provisions Relating to Enforcement

The CAA Amendments allow the Administrator to impose administrative penalties of up to $25,000/day for the violation of any requirement, prohibition, permit, rule, or order (up to a maximum penalty of $200,000 in most instances). Also, government officials investigating a facility can, while on site, impose penalties of up to $5,000/day for each violation. Citizens also can seek civil penalties in citizen's suits.

In addition the CAA Amendments create new criminal sanctions for negligent (as opposed to "knowing") violations and establish administrative penalty mechanisms to complement the traditional judicial enforcement program. Fines and prison sentences can now be imposed upon any person who negligently releases any hazardous air pollutant covered under the NESHAPs or included on the Superfund list of extremely hazardous substances but not listed under the NESHAPs.

Sanctions to enforce violations include fines for individuals of up to $250,000 and imprisonment up to five years, with each day counting as a separate violation. Fines for corporations may be up to $500,000 for each violation. Fines for knowing endangerment can climb to $1 million per day for businesses and up to $250,000 per day and 15 years imprisonment for individuals.

Regulations implementing the CAA may be found in Title 40 of the CFR Parts 50 through 99.