15. DRAFT - FOR DISCUSSION PURPOSES Streamline permitting by adopting expedited procedures, as well as class permits and permits-by-rule, for selected activities. EPA's RCRA Reform Initiative has identified each of these areas as needing regulatory retooling. This reform initiative is desperately needed, long overdue and holds great promise. MULTIMEDIA 16. Ensure consistency of regulations, e.g., regulations from air, water and waste program offices regulating wastewater treatment facilities should have consistent objectives, definitions and requirements. 17. Assess the impact of a regulation on all media and justify a regulation based on the net environmental benefits. EPA's new multimedia cluster team concept, discussed in §5.1 of this report, is a positive step in this direction. STATUTORY CHANGES TO FOSTER INNOVATION AND TECHNOLOGY 18. 19. 20. 21. Amend the CWA to expand the purposes of the Act to expressly require consideration of multimedia impacts when promulgating rules or issuing permits. Amend the CWA to expand the scope of several variances and modifications under CWA §301, based on site-specific factors, economic capabilities, "no unacceptable impact" and innovative technologies, which are currently extremely limited by the statute. Amend the environmental statutes to establish "risk reduction" or "release reduction" target levels, providing opportunities for facilities to meet such targets in the most efficient and cost-effective manner. A demonstration program may be appropriate to address implementation issues associated with this concept. Amend the environmental statutes to allow for compliance time frame incentives and alternate compliance strategies to promote multimedia pollution prevention. DRAFT-FOR DISCUSSION PURPOSES 2.0 THE CLEAN AIR ACT 2.1 Overview of the Purposes and Structure of the Clean Air Act ("CAA") The overall objective of the CAA is the protection of public health and welfare. Indeed, the first enumerated purpose of the Act is to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare. . ." In the area of public health, the Act establishes two major regulatory programs. The first is a national program to achieve and maintain compliance with EPA's health-based national primary ambient air quality standards (NAAQS) for six so-called "criteria pollutants": sulfur dioxide (SO2), ozone (O3), carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2) and respirable particulate matter (PM10). The second program concerns hazardous air pollutants (HAPs) and is addressed entirely by §112 of the Act. These two programs dominate Title I of the CAA and, since their emphasis is on public health, Congress has frequently limited EPA's authority to grant waivers or exceptions based upon economic considerations. This limitation is more pronounced under the CAA than most other federal environmental statutes. State Implementation Plans (SIPs) are the primary regulatory vehicles by which the NAAQS are to be achieved. The SIPS establish emission limits and control requirements for stationary and transportation-related emission sources "as necessary" to assure compliance with the NAAQS. Those areas where ambient air quality is worse than the national ambient standards have been designated as "nonattainment" areas. The key features of the nonattainment program for stationary sources include rigorous preconstruction approval requirements for new or modified major sources and the obligation imposed on existing major sources to install Reasonably Available Control Technology (RACT). The 1990 Amendments made major changes to the Act's nonattainment provisions, but did not alter their basic framework. New attainment deadlines were established (ranging from 1993 to 2010), a vast array of new requirements were added to reduce existing mobile and stationary source emissions, and contingency measures were required for areas that do not come into compliance in the future. Greater emission "offsets" were required for new or modified sources. For areas complying with applicable NAAQS, Congress established the Prevention of Significant Deterioration (PSD) program in 1977. The objective of PSD is to protect areas having high quality air. The 1990 Amendments did not address PSD in a substantial way. The final element of the basic NAAQS framework is the New Source Performance Standards (NSPS) program. These standards impose stringent requirements on new and modified sources (regardless of whether they are located in an attainment or nonattainment area) on the theory that such sources can more easily meet stringent standards than existing sources. The statutory standard for such new and modified sources is the "best system of DRAFT - FOR DISCUSSION PURPOSES emission control" that has been adequately demonstrated. The NSPS program primarily addresses the six criteria pollutants. The second CAA program devoted primarily to public health protection is the hazardous air pollutant (HAP) control program under §112. The 1990 Amendments replaced what was generally viewed as an ineffectual system of regulating EPA-designated hazardous air pollutants with a much more stringent system. Prior to the 1990 Amendments, EPA had addressed only eight pollutants under its National Emission Standards for Hazardous Air Pollutant (NESHAP) program. The amended section 112 now lists 189 substances that are to be regulated as hazardous air pollutants. EPA must establish emission standards for these HAPS which require "the maximum degree of reduction" in HAP emissions deemed achievable by EPA. These standards are generally referred to as "MACT" standards, although the phrase "maximum achievable control technology" is not used anywhere in the Act. The statute provides a schedule by which EPA is to promulgate specific MACT standards. The law also authorizes category by category health-based "residual risk" standards in later years if MACT proves inadequate to protect against residual risks to human health or the environment. The MACT program is primarily aimed at "major sources," defined in §112 to include any source that emits 10 tons per year (tpy) of any one HAP or 25 tpy of any combination of HAPs. A separate, less stringent system of regulation is provided for smaller "area sources" in the Air Toxics Area Source Program.o/ 2.2 Flexibility vs. Command and Control Under the CAA 2.2.1 Definition of "Source" "Sources" of pollutants regulated under the Clean Air Act include both "stationary sources" (typically industrial facilities such as refineries or chemical plants) and "mobile sources." Classes of vehicles are regulated as a group, with emissions requirements applicable to each individual vehicle. The term "stationary source" has a much less precise definition under the Act: "any building, structure, facility, or installation which emits or may emit any air pollutant." Based on this definition, a source could either be a discrete stack or an entire petrochemical complex. Environmentalists and public interest groups generally favor defining the term "stationary source" very narrowly, so that each activity within an industrial complex which 5/ CAA §111(a)(1). 6/ CAA §112(k). 71 CAA §302(z). DRAFT - FOR DISCUSSION PURPOSES emits a pollutant would have to meet applicable emission standards. This approach typically results in more rigid emission controls, since each discrete emission point is a source that must be controlled. On the other hand, industry generally tends to favor a broad definition of source, so that one "facility" would include all plant activities which contribute to emissions. This definition generally allows greater flexibility in meeting emission limitations. Courts have concluded that EPA can interpret the term "stationary source" either narrowly or broadly, depending on the specific policy objectives being pursued.3/ Consequently, EPA has adopted a broad, facility-wide definition for purposes of SIP development and PSD programs, but a narrower definition for the NSPS program. As discussed in Section 2.3, additional opportunities may exist for broad definitions of "source," under the CAA, thereby increasing flexibility and opportunities for innovation under the Act. 2.2.2 Emission Standards vs. Design Specifications The CAA uses a variety of control strategies for achieving its various health and welfare objectives. In the case of stationary sources, the primary control strategy has been the imposition of "emission standards" for conventional emission points which emit through a stack or vent and "design, equipment, work practice or operational standards" for so-called "fugitive emission" sources (i.e., emissions which cannot reasonably be captured and conveyed through a discrete stack or whose vent emissions cannot feasibly be measured). In practice, where EPA has determined that it is "not feasible" to prescribe or enforce an "emission standard" for a particular installation, the Agency instead has promulgated design, equipment, work practice, or operational standards. Emission control programs generally fall into one of the following categories: 1) general SIP emission standards; 2) BACT (Best Available Control Technology) under the PSD Program; 3) LAER (Lowest Achievable Emission Rate) and RACT (Reasonably Available Control Technology) under the nonattainment program; and 4) MACT (Maximum Achievable Control Technology) under the HAP Program. 10/ 3/ Chevron USA v. NRDC et al., 467 U.S. 837 (1984). 9 40 CFR §§51.165 and 52.21. 10/ CAA §§110(a)(2), 165(a)(4), 173(a)(2) and 112(d); prior to the §112 amendments in 1990, hazardous air pollutant regulations were referred to as National Emission Standards for Hazardous Air Pollutants or NESHAPs. Such regulations are now referred to as MACT requirements. DRAFT -FOR DISCUSSION PURPOSES In recent years, EPA has frequently established BACT, LAER and MACT in terms of design or technology standards. However, prior to the CAA Amendments of 1990, EPA's legal authority to impose such requirements was questionable. The Act defines BACT and LAER in terms of "emission limitations" reflecting specified levels of stringency. Under the pre-1990 Act, the terms "emission limitation" and "emission standard" were defined to mean requirements established by a state or EPA which limited the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction. 11/ In the case of NESHAP regulations under §112, design standards were expressly allowed under §112(e) of the pre-amended Act, but only if EPA made an express finding that it was not feasible to prescribe or enforce a NESHAP "emission standard" for a particular hazardous air pollutant. This proviso was carried over in the 1990 Amendments as §112(h) and is applicable to any MACT or Residual Risk standards promulgated by EPA under Sections 112(d) or 112(f) of the amended Act. 12/ The 1990 CAA Amendments expanded the definition of the companion terms "emission limitation" and "emission standard" to include design standards. The new definition reads as follows: A requirement established by the state or the Administrator which limits the CAA §302(k). (Emphasis added.) Even so, the PSD and nonattainment provisions of the Act do not expressly provide for BACT or LAER design standards and such authority is not expressly provided by the 1990 CAA Amendments. 13/ Hence, the new definition does not necessarily expand EPA's authority to impose design standards on a case-by-case basis in permits under the BACT or LAER provisions of CAA Sections 165 and 173. Had Congress intended to authorize design 11/ CAA §302(k). 12/ See CAA §112(b)(1). 13/ EPA has proposed that it possesses the authority to require BACT design standards, as set forth in its draft PSD workshop manual. According to the manual, EPA will establish BACT design standards where it is "infeasible" to prescribe an emission limitation. See Draft NSR Workbook, October 1990 at p. B-56. |