LAW
Healy Enviro Law Fall 2012.docx

Iii why have offsets and laer 1 offsets may not be

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iii. Why have offsets and LAER? 1. Offsets may not be working AND 2. Want to penalize areas in nonattainment (incentivize attainment) 3. What about new non-major sources? a. NSPS applies (if applicable) 4. Existing stationary Sources a. Emissions of nonattainment pollutants are subject to RACT: i. Source by source standard ii. EPA provides guidance to states. 5. Bubble Policy – ok in Chevron . a. Bubble policy determines when a modification triggers new source requirement. Basically, you can modify the amount of pollutant in each smoke stack as long as the net emissions remain unchanged. b. No net increase modification does NOT impose new source requirement: i. So only RACT applies, it’s not a “new source.” ii. Bubble allows you to avoid new source permit requirement (thus avoid PSD and LAER). 6. Mobile Sources a. New: same as what is otherwise required b. Existing: may have to require enhanced inspection and maintenance i. Also transportation control planning (ex: high occupancy lanes) ii. Clean fuels may be required) 20
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7. Sierra Club v. EPA : the extension of NAAQS deadlines can only be allowed in limited circumstances (or when the area is in “severe nonattainment”). 8. Nonattainment and Carbon Dioxide a. See the Tailoring Rule : this would regulate many polluters, so the EPA made the threshold really high. iii. New Source Review 1. Under NSPS, PSD and Nonattainment: whether a source is new affects the triggering of these statutes. a. The “newness” of a source is critical with the CAA. 2. Trigger for New Source Requirements based on modification of existing sources (need both): a. Physical Change to Existing Source i. EPA allows exclusions as defined by regs. Types of exclusions include: 1. Routine Maintenance 2. Increase in hours of operation 3. Change in ownership b. Increase in Emissions i. Definition of modification in §111(a)(4) applies to NSPS, PSD and nonattainment. ii. But regulations establish different definitions of increase for different programs: 1. For NSPS , increase in hourly emissions rate is required. 2. For PSD and Nonattainment , increase is present where there is a significant increase in emissions of any regulated air pollutant . a. Bubble policy adopted in 1980 determines whether increase has occurred based on aggregate change in emissions from all points of pollution within contiguous source [upheld in Chevron ]. b. Note – it’s possible to meet the PSD/Nonatt trigger but not the NSPS trigger. For example, just increase the # of hours but do not increase the hourly rate. iii. Modification exceptions have promoted grandfathering because Industry has every incentive to stay an existing source. 21 Make note of this at NSPS, PSD and nonattainment , it’s really important
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1. BACT still applies to existing sources but the standards are much lower.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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