Healy Enviro Law Fall 2012.docx

F note modifications arent as important as caa

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f. ***Note: Modifications aren’t as important as CAA because CWA regulated existing sources. 2. CWA defines the new source standard to be a “standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Admin determines to be achievable through application of the best available demonstrated control tech.” 3. Under 40 CFR 122.29(b), new source standards only apply when: a. Facility is entirely new; b. Facility is total replacement OR c. Facility is new discharge source substantially independent of existing source. v. VARIANCES (from categorical standards) 1. No variances for new sources 31
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2. CWA deals with the inevitable variation among individual sources by allowing the granting of variances when circumstances justify an exemption from an otherwise applicable effluent limitation. 3. Types of variances : a. Toxic Pollutants FDF variance, now codified in §301(n) [has the effect of a new subcategory]. b. Non-conventional pollutant: i. §301(c), if BAT is met, consider affordability and B/C of additional controls. 1. Variances can be given for cost of BAT. ii. §301(g), if compliance with BAT and there’s no violation of WQS. c. *** Chemical Manufactures v. NRDC : 301(c) and 301(g) variances cannot be acquired if toxic. Only FDF variance for toxics. No variances for new sources. 4. Fundamentally Different Factors (FDF) a. Showing: to acquire FDF, the sources must prove that they are fundamentally different from other sources within the category based on consideration relating to defining standard. i. FDF variances are very hard to get. Source must essentially show that their source is so different from the category that it should be its own category. ii. Affordability for source is not a factor. Economic capability cannot be considered. c. Nonpoint Source Pollution i. 1/2 of US waterways are not in compliance because of Nonpoint sources. ii. CWA has been failure with nonpoints and does very little with them because: 1. NPDES doesn’t apply to nonpoints (ineffective, difficult to get at this type of pollution). 2. Affected by land use planning, typically controlled by states. 3. Cost to control here is really high. 4. Also, Congress doesn’t want to regulate Agriculture. iii. Issues with defining point sources. Even with broad definition, it won’t changed water quality dramatically. iv. Pre-1987, area wide management process under §208 (didn’t work). v. 1987 amendment adds §319: 1. Required states to identify waters threatened by NPS pollution. 2. States had to prepare 4yr plans to address NPS pollution based on watershed management. 32
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a. Provide for BMP (EPA has no enforcement authority; been ineffective) vi. Water Quality Trading Schemes 1. Issues with confidence and enforceability of system. 2. Water trading has more challenges than air trading. Harder to implement.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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