Healy Enviro Law Fall 2012.docx

1 trigger for defining categories subject to

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1. Trigger for defining categories subject to standards [§111(b)(1)]: a. EPA must define limits on new sources within category when “ in EPA’s judgment, [the category] causes or contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare .” i. Trigger std : only health based ii. Language is very similar to criteria pollutants of §108. iii. This statute suggests Congress’ intent to have more of these than criteria pollutants. 2. Scope of NSPS a. New Sources – defined to mean a newly constructed or “modified” source. i. Modified” source is defined to include physical or operational change causing an increase in emissions rate of any regulated pollutants. b. Existing Sources (§111(d)) i. EPA must require states to establish standards for existing sources when 2 conditions are met : 1. Existing source would have §111 standards apply if it were new, AND 2. It’s a designated pollutant: not regulated under §108 (criteria pollutants) or §112 (hazardous pollutants). a. Standard is to account for source’s useful life and it tells states to regulated designated pollutants. ii. ***Note: SIPs already regulate criteria pollutants from existing sources. But designated pollutants are 12
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not regulated at all; this is where NSPS comes in to fill the loophole. iii. NSPS fills in the loophole of the lack of regulation for designated pollutants from existing sources. iv. Nature of required limits/standards 1. Adequately demonstrated technology , accounting for benefit/cost of controls (§111(a)(1)). 2. Very strong performance standards (give you a standard but don’t require how to attain it) and not a design standard. a. Thus, EPA just tells industry what standard to meet and not how to meet it. This gives industry leeway and an economic incentive to clean up. 3. Technology doesn’t have to be in current use for this category, but EPA has BoP to justify. a. Portland Cement – EPA has burden to show the standard can be met across that category, then it can be adequately demonstrated. 4. s v. Enforcement : §111(c) provides that NSPS are enforceable by the EPA and the states that have been delegated this authority. 1. NSPS limits apply without regard to whether there is NAAQS attainment. 2. States may impose more stringent limits under §116 and §110 authority. 3. CAA itself may impose more stringent limits under PSD and non- attainment programs. 4. NSPS applies to every source w/in category without regard to whether the source is major. vi. NSPS must be reviewed every 8 years and revised when necessary . vii. Pollutants regulated by NSPS : 1. Criteria pollutants 2. Designated pollutants – comprised of non-toxic pollutants that endanger public health but are not emitted from numerous and mobile sources.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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