A good lawyer is a bad neighbor. -- French Proverb
Under the Clean Air Act (CAA), EPA is authorized to set both primary and secondary National Ambient Air Quality Standards (NAAQS) for "criteria" pollutants that endanger public health or welfare. The CAA also created uniform, national performance standards for new stationary sources (built or modified after 1970), national emission standards for hazardous air pollutants, and vehicle emission standards.
National Ambient Air Quality Standards.
EPA has issued NAAQS for six criteria pollutants: sulfur dioxide, particulates, nitrogen dioxide, carbon monoxide, ozone and lead. 40 C.F.R. pt. 50. The NAAQS include both primary and secondary standards. Primary standards must allow for an "adequate margin of safety" in protecting public health. 42 U.S.C. sec. 7409(b)(1). Secondary standards protect public welfare from any anticipated adverse effects. 42 U.S.C. sec. 7409(b)(2). Different permitting requirements apply depending on whether the area in which the facility is located is in attainment or nonattainment with the NAAQS.
New Source Performance Standards.
Under Section 111 of the CAA, EPA sets new source performance standards (NSPS), which impose uniform technology-based standards on new or modified sources of pollution. 42 U.S.C. sec. 7411. EPA has issued performance standards for a number of industry categories. 40 C.F.R. pt. 60. The performance standards reflect the degree of emission limitation achievable using the best system of emission reduction that the Administrator determines has been adequately demonstrated (taking into account the cost, any nonair quality health and environmental impacts, and any energy requirements). 42 U.S.C. sec. 7411.
National Emission Standards for Hazardous Air Pollutants (NESHAPs). The 1977 CAA Amendments authorized EPA to issue NESHAPs at levels that would provide "an ample margin of safety to protect public health." By 1990, EPA had issued standards for only eight hazardous air pollutants, so the 1990 CAA Amendments completely restructured the NESHAPs program. Congress listed 189 hazardous air pollutants and required EPA to add other substances that could adversely affect human health or the environment. Emission standards for these hazardous pollutants are then set to reflect the Maximum Achievable Control Technology (MACT) for each category of sources, taking into account costs, nonair quality health and environmental impacts, and energy consumption. 42 U.S.C. sec. 7412.
LIABILITY AND ENFORCEMENT
EPA has broad inspection and monitoring powers to administer and enforce the CAA. For example, EPA can enter and inspect property and records of the facility, and require specific self-monitoring. EPA also retains certain broad emergency powers to respond to "imminent and substantial" dangers to public health, public welfare or the environment. EPA can invoke these emergency powers even if no permit or other standard has been violated.
EPA has three basic enforcement avenues available: issuing an administrative order requiring compliance, commencing a civil action to collect penalties or obtain an injunction, and assessing administrative penalties. 42 U.S.C. sec. 7413(d). Both civil and administrative penalties may be up to $25,000 per day per violation. 42 U.S.C. sec. 7413(d)(1). EPA can also levy an administrative penalty roughly equal to the amount of the profit gained by the failure to comply, 42 U.S.C. sec. 7420, and issue field citations of up to $5000. 42 U.S.C. sec. 7413(d)(3). EPA can also impose criminal fines and imprisonment of up to fifteen years, depending on the violation, on any person, including any "responsible corporate officer," who knowingly violates the statute. Before EPA may initiate an enforcement action, EPA must first issue a Notice of Violation (NOV), which effectively gives the violating state or air pollution source thirty days to fix the problem.
EPA retains almost complete discretion to negotiate and settle its civil or administrative enforcement actions. Actual fines are calculated according to specific penalty policies or guidelines, which typically consider factors such as the severity, frequency and duration of the violation. Settlements also typically include a consent order creating a specific timetable for compliance and stipulated penalties for violating the consent order.
State and Local enforcement.
Nine months after EPA issues a NAAQS, each state is required to submit to EPA a State Implementation Plan (SIP) showing how the state expects to implement and maintain the federal standard. 40 C.F.R. sec. 51.103. Every SIP must include a state enforcement plan, which provides the details of each state's enforcement authorities. The state has flexibility in choosing the regulatory and enforcement tools it will use to reach the NAAQS, but EPA ultimately must approve the SIP. Approved SIPs become part of both state and federal law, and can be enforced by either federal or state authorities. Once given approval, the states share the authority with EPA to enforce the applicable regulations. 42 U.S.C. sec. 7410.
Citizens can also bring a suit against any person or entity: to enforce the CAA's emission standards and limitations or any administrative orders; to stop the construction or modification of any illegal source; or to force EPA to carry out any non-discretionary duty. Such citizen suits cannot be brought without first providing 60-day notice to the defendant nor can any suit be brought if EPA or a state is already diligently prosecuting a civil action. Penalties received through citizen suits are either earmarked for compliance and enforcement activities or applied to "mitigation projects" designed to protect public health or the environment. 42 U.S.C. sec. 7604.
From Summary of Enviromental Law in the United States - CEC
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