New Source
• As defined in the CAA, construction of a new source, or
modification of an existing source, that will produce a
significant increase in emissions of pollutants
New Source Performance Standards
(NSPS)
• The technological standards required for new sources
• Set by the EPA
• Often consist of numerical emissions limitations based on scientific
studies determining “adequately demonstrated” “best technology”
to achieve a particular “degree of emission reduction” [CAA Section
111]
– Where numerical emissions standards cannot reasonably be
imposed, the EPA may require standards for design, equipment,
or operations
• Represent the minimum standards required at new or significantly
modified existing sources
Preconstruction Permitting
• Prevention of Significant Deterioration (PSD)
– A standard for new sources of air pollution located in
attainment areas
– The new sources must comply with a permit program
designed to maintain the air quality at approximately the
same level as before the new source was added
PSD Permit Program
• Applies to new sources or to significant modifications to existing sources
in an attainment area
• Implemented by the EPA
• Addresses issues associated with facilities that have not yet begun
operating
• PSD permits require an owner or operator of a facility to demonstrate that
the source will:
– comply with ambient air quality levels intended to prevent
deterioration of air quality (PSD levels)
– use BACT for each pollutant to be emitted in significant amounts
o The CAA defines BACT as “the maximum degree of reduction . . .
achievable” in light of economic, energy, and environmental
factors”
PSD Permit Program (cont.)
•
•
•
•
BACT permit review usually addresses both criteria pollutants and air toxics
Air toxics
– Regulated pursuant to Section 112 of the CAA
– In 1990, the regulation changed from being health-based to technology-based
– All major sources (defined by quantities of emissions of listed substances) must
comply with the “major source” program
o Major sources include facilities such as oil refineries and chemical plants
– Other sources may be required to comply with an “area program”
– There are 50+ categories of sources
o The standards for each category must require technology that achieves MACT
MACT Standards
– Hazardous Organic NESHAP (HON)
o The first set of technology standards established by the EPA meeting the
Maximum Achievable Control Technology (MACT) standards under the CAA
PSD permit program may require sources located near national parks or other sensitive
areas to show that their emissions will not affect other standards related to air quality, such
as visibility
Nonattainment Area Permit Program
• Implemented by the states
• Addresses issues associated with facilities that have not yet begun
operating
• Facilities subject to these permit programs are required to ensure that
they can reach the Lowest Achievable Emission Rate (LAER)
– A standard based on the most stringent limitations contained in a
state’s SIP or the most stringent limitation achieved in practice for a
similarly situated facility, whichever is more stringent
Nonattainment Area Permit
Program (cont.)
•
•
New facilities and existing facilities intending to make major modifications are required to
– Figure out a way to ensure an “offset” of pollutant emissions
o For every proposed emission of a pollutant, facilities must arrange for nearby facilities
to reduce their emissions
– Demonstrate that any other sources it owns or operates is in compliance with applicable
regulations or has a plan to come into compliance
– Demonstrate that the benefits of the proposed source (or the modifications to an existing
source) outweigh the environmental and social detriments associated with the facility
“Reconstruction” of an existing facility
– If so extensive that it’s basically the same as replacing the facility “at the end of its useful
life,” the new source standards may apply to the extent the NSPS program must be followed
o This type of reconstruction does not trigger the PSD or nonattainment permit
programs
– Reconstruction involving 50% or more of a facility will be deemed a reconstruction
– The NSPS, however, does not apply when a finding is made that the NSPS is technologically
or economically infeasible or where cost considerations, remaining useful life, and potential
emissions reductions make application of the NSPS inappropriate
Nonattainment Area Permit
Program (cont.)
•
•
The rules regarding the modification of facilities are slightly different from the
rules regarding reconstruction of facilities
– For this portion of the CAA, a modification is defined as a change that
o is physical or operational
o will result in an increase in emissions of a regulated pollutant
o does not constitute an activity such as routine repair, replacement, or
maintenance
– The modification rule, interpreted very broadly by the EPA, means that
virtually any modification that did not constitute routine repair, replacement,
or maintenance invoked the application of the rule
If a new source or an existing source seeking to make significant modifications is
located in an area that is an attainment area for some pollutants and a
nonattainment area for other pollutants, the facility may be required to meet the
standards for both a PSD permit program and a nonattainment permit program
Operating Permit Program
•
•
•
Controls activities at facilities that are already operating
Introduced to the CAA in the 1990 Amendments
– Each state is required to create and implement source-specific permit
requirements for existing facilities
Sources regulated by state CAA Programs
– Any major source as defined by the CAA
– Any source subject to a standard, a limitation, or another requirement under
Section 111 of the CAA
– Any source subject to a standard or requirement under Section 112 of the
CAA (with the exception that being subject to the accidental release provision
alone will not trigger the larger permitting requirement)
– Any affected source under Title IV of the CAA
– Any source in a source category designated by the EPA
Approval of a Permit Program
• A state’s permit program becomes effective upon approval by
the EPA
• The EPA can grant
– Full approval
– Partial approval
– Interim approval
State CAA Permit Process
• Application Criteria
– The application must list:
o all major emissions of pollutants
o all emissions of “regulated air pollutants”
o identification of all emissions points
o rates of emissions in tons per year and in other
compliance increments
o identification of all air pollution control requirements
State CAA Permit Process (cont.)
•
Permit Provisions
– A permit is issued for a fixed term that cannot exceed 5 years
– The permit includes
o applicable emissions limitations and standards
o certification, testing, monitoring, record keeping, and reporting
requirements related to compliance with the standards imposed
o permit conditions prohibiting sulfur dioxide emissions exceeding
applicable allowances
o a severability clause, which ensures the integrity of the remaining
permit provisions should one part of the permit be challenged and
declared invalid
o a statement that the permit may be revoked, modified, reopened,
reissued, or terminated for cause
o a provision to ensure that the source pays all applicable application
fees
o provisions allowing inspection and entry by the permitting authority
o a schedule of compliance, including regular progress reports
State CAA Permit Process (cont.)
• 4 types of changes to CAA permits:
– Administrative amendment
– De minimus revision
– Minor revision
– Significant revision
Other Provisions of the CAA
• Trading
– Facilities/sources are allowed to trade emissions limits as long
as all of the facilities in the area stay within the applicable
emissions caps for pollutants as set by the EPA
• Accidental Releases
– Provisions designed to control and prevent accidental releases
of regulated hazardous pollutants or other extremely hazardous
substances [CAA Section 112(r)]
• Acid Rain
– Rain that contains high quantities of sulfur dioxide and nitrogen
oxides
• Sulfur dioxide allowances
Visibility Standards
• Applicable to the states since the 1977 CAA Amendments
• Goal
– To eliminate any human-made impairments to clear visibility
• Best Available Retrofit Technology (BART)
– Pursuant to the CAA, states are required to use this level of
technology to eliminate certain visible air pollution
o 2 types of visible air pollution
 Plume blight
 Impairment of visibility as a result of plumes, which are
identifiable columns obscuring visibility
 Regional haze
 Technical term for what is more commonly known as
smog
 A general film impairing visibility over a large area
Enforcement
• Administrative/civil
– The EPA administrator may bring an enforcement action directly against
the violator rather than go through the courts
o The administrator may (i) seek civil penalties up to $200,000 or
more and (ii) issue field citations (similar to tickets) for minor
violations
• Consent agreements
– The EPA is allowed to enter into these agreements, although the EPA’s
authority in this regard has been challenged
• Private citizens
– Allowed to bring suit for civil penalties for failure to abide by the
provisions of the CAA
• Criminal
– Criminal felony penalties imposed against “any person” who knowingly
violates the CAA