Healy Enviro Law Fall 2012.docx

3 ex of new source review wepco v reilly ct deemed it

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3. Ex of New Source Review: WEPCo v. Reilly – Ct deemed it a modification and not “routine maintenance” based on purpose, frequency, and cost of the work. f. Interstate Air Pollution i. EPA has only recently applied these rules because states are just now getting into compliance. Unwillingness also due to federalism concerns. 1. Policy: eliminate the tall stacks “solution” to meeting NAAQS. ii. Interstate Air Pollution requirement [§110(a)(2)(D)]: A SIP must have provisions “prohibiting…any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will… contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard . iii. Three methods by which interstate air pollution may be addressed/enforced: 1. SIP Challenge a. §110 (above) requires states to include limits needed to ensure there are no unlawful air impacts on other states. b. If downwind states think that an EPA approved SIP violates §110, they must sue within 60 days of EPA’s approval. i. Challenge may also be made to relevant SIP revision 2. §126 Petition a. States may petition EPA for a finding that emissions from sources in another state violate §110’s interstate impacts requirement. b. No time limit on filing petition. c. If EPA determines SIP is inadequate, EPA must define limits needed to ensure compliance with §110 within 3 years. This resembles a FIP. d. Note: the focus is on control of sources of unlawful interstate air pollution. i. Ex: In Jefferson County case, KY filed a §126 petition but it was tossed out because Indiana didn’t “contribute significantly” to nonattainment in KY. Thus not a violation b/c not a significant contributor 3. SIP Call a. Following 1990 amendments, EPA has authority under §110(k)(5) to issue a call to identified states for SIP amendment(s), when EPA finds that SIP is inadequate under §110. 22
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b. If state gets SIP call, must amend the SIP to comply with §110. c. State is responsible for imposing needed limits on emissions. i. State focus of SIP call differs from §126 petition (which if federally focused). iv. 1998 – EPA issues a SIP call (in response to 8 §126 petitions) ordering 22 states to revise their SIPs to mitigate the interstate transport of ozone. 1. This SIP call is upheld in Michigan v. EPA , where the petitioners challenged the EPA’s definition of “contribute significantly.” 2. How did the EPA define significant contributions? a. Trigger standard : determined by quantum of nonattainment pollutant contributed by 1 state to another. Health based. b. Compliance standard : must impose cost effective controls. 3. Michigan court allows the definition under Chevron and allows costs to be considered; cost effectiveness is implied.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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