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Clean Air Act

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The Clean Air Act is a federal law enacted by the United States Congress to control air pollution on a national level from both stationary sources (such as coal fired power plants) and mobile sources (such as automobiles and trucks). It requires the Environmental Protection Agency (EPA) to develop and enforce regulations to protect the general public from exposure to airborne contaminants that are known to be hazardous to human health.

Public health concerns about clean air have been known for centuries, [1], and in the 19th and early 20th centuries, efforts to clean up air pollution took place on the municipal or state levels. In the 1940s and 50s, major smog incidents in Los Angeles, CA, and Donora, PA, raised public awareness and concern.

The first U.S. federal program to investigate the issue was the Air Pollution Control Act of 1955. [2] The first legislation to enable control of air pollution was the Clean Air Act of 1963, Title 42 U.S.C. § 7401.[3]

Major additions and changes were embodied in the Clean Air Act Amendments of 1967, the Clean Air Act (1970), the Clean Air Act Amendments of 1977, and the Clean Air Act (1990). Numerous state and local governments have enacted similar legislation, either implementing federal programs or filling in locally important gaps in federal programs.

Enforcement of the act’s provisions have long been controversial with some sectors of the auto and utility industries. However, according to an April, 2011 EPA study, the direct benefits from the 1990 Clean Air Act Amendments are estimated to reach almost $2 trillion for the year 2020, a figure that dwarfs the direct costs of implementation ($65 billion). [4]

The Clean Air Act was also significant in that it was the first major environmental law in the United States to include a provision for citizen suits.

Contents

Timeline

  • 1955 Air Pollution Control Act -- First federal clean air law, funded research.
  • 1963 Clean Air Act – First authorized development of a national air pollution program
  • 1967 Air Quality Act -- First to authorize enforcement over interstate air pollution problems
  • 1970 Clean Air Act of 1970
    • Established National Ambient Air Quality Standards (NAAQS) and began State Implementation Plans (SIPs)
    • Established New Source Performance Standards for new and modified stationary sources of pollution (such as industries and electric utilities) and set standards for for Hazardous Air Pollutants (HAPS)
    • Also Required control of emissions from mobile sources (such as automobiles)
  • 1977 Amendments to the Clean Air Act of 1970
    • Provisions for Prevention of Significant Deterioration of air quality and improved enforcement in NAAQS non-attainment areas
    • Requirements for New Source Review for new coal plants or existing coal plants undergoing maintenance or upgrades. [5]
  • 1990 Amendments to the Clean Air Act (1990)
    • Started programs to control acid rain and to control 189 toxic pollutants
    • Required phase-out of ozone depleting chemicals
    • Proposed emissions trading [6]
  • 1997 EPA issues new NAAQS regulations for ground ozone and particulate matter [7]
  • 1998 EPA orders 22 states in the Northeast and the Midwest to curb nitrogen oxide emissions, mostly from coal fired power plants in the Ohio Valley region. The new EPA plan called for a 28% regionwide reduction by the year 2007, costing $1.7 billion annually but offset by $3.4 billion annual savings in health benefits, EPA said.
  • 1998 - 2000 Duke Energy makes 29 modifications and upgrades to equipment in older coal-generated power plants without applying for permits from the EPA. The lawsuit Environmental Defense v. Duke Energy Corp. results.
  • 2000, December 20 -- EPA announces decision to include coal- and oil-fired power plants among HAPS sources subject to regulation.
  • 2001 US Supreme Court unanimously affirms EPA authority to regulate air pollution under the Clean Air Act in Whitman v. American Trucking Associations, Inc. [8] A major issue was the question of whether EPA was required to take costs as well as public health into account; the court said public health could be the main goal of the regulations.
  • 2002 Under pressure from utilities, the new Bush Administration attempts to reverse EPA's New Source Review regulations from the 1977 Clean Air Act. New Source Review required electric utilities to install the best available pollution control technology if they renovated aging coal fired power plants. facilities. The ruling would have exempted half of air pollution sources from the Clean Air Act, and was challenged in court by 14 states.
  • 2005, March 29 -- EPA reverses HAPS determination (of 2000) and decides to “delist” oil and coal power plants from HAPS regulation.
  • 2005, May 18 -- EPA issues a final rule on mercury emissions, which would make it the only one of the HAPs to be regulated. This was the Clean Air Mercury Rule (CAMR) which set mercury standards for new coal-fired power plants and established a national mercury cap and trade program for electric utilities. The idea behind the CAMR was to reduce mercury emissions from coal power plants by 70 percent by 2018.
  • 2006 Attempt to reverse New Source Review is overturned as "contrary to the plain language" of the Clean Air Act by the U.S. Court of Appeals for the District of Columbia.
  • 2007 US Supreme Court unanimously upholds New Source Review in Environmental Defense v. Duke Energy Corp
  • 2007 US Supreme Court also rules that the EPA has the power to regulate carbon dioxide emissions as a pollutant under the Clean Air Act in Commonwealth of Massachusetts v. EPA case.
  • 2007 EPA's Clean Air Scientific Advisory Committee recommends lowering the ground level ozone standard from 85 PPB to between 60 PPB - 70 PPB. The committee concluded that at 75 PPB there would b e 1,300-3,500 fewer premature deaths annually, but recommended lowering the standard to 65 PPB to reduce the number of deaths by 3,000-9,200 each year. The standard was reduced only to 75 PPB in 2008.
  • 2008 -- CAMR appealed, along with the 2005 HAPs delisting. The U.S. Court of Appeals remanded the CAMR based on EPA’s failure to properly delist coal plants from HAPS regulation.
  • 2009, December -- U.S. District Court for the District of Columbia Circuit orders EPA to finally create rules requiring coal- and oil-fired power plants to install pollution controls that meet a maximum achievable control technology (MACT) standard for emissions of mercury and other hazardous air pollutants (HAPs).
  • 2009, April 17 -- EPA rules that man-made emissions of six greenhouse gases, including carbon dioxide, are a danger to the welfare and health of the public, and should therefore be regulated as pollutants. Detailed proposals for the regulation were issued in September, 2009.
  • 2011, March 16 -- Proposes rules on HAPs such as mercury, arsenic, lead, nickel, chromium and hydrochloric acid.
  • 2011, July 11 -- EPA issues final regulations for Cross-State Air Pollution Rule (CSAPR) issued, requiring requires 27 states to reduce power plant emissions that contribute to ozone and/or fine particle pollution in other states. [9] Electric utility reaction in June and July is highly negative.
  • 2011, Oct. 10 -- Twenty five states urged a federal court to require EPA to delay the MACT emissions rule by at least a year, saying that pollution controls are too costly. [10]

History

The first Clean Air Act was passed in 1963. It was amended first by the Clean Air Act Amendment in 1966, then by the Clean Air Act Extension of 1970 (84 Stat. 1676, Public Law 91-604). The 1970 extension is sometimes called the "Muskie Act" because of the central role Maine Senator Edmund Muskie played in drafting the content of the bill. The Clean Air Act Amendments in 1977 further modified the law.[5]

Congress established the New Source Review (NSR) permitting program as part of the 1977 Clean Air Act Amendments. The NSR process requires industry to undergo an EPA pre-construction review for environmental controls if they proposed either building new facilities or any modifications to existing facilities that would create a “significant increase” of a regulated pollutant. The legislation allowed “routine scheduled maintenance” to not be covered in the NSR process.[5]

The next major revision came with the 1990 Clean Air Act, which was enacted by the 101st United States Congress (Pub.L. 101-549).[6]

The Clean Air Act Amendments of 1990 proposed emissions trading, added provisions for addressing acid rain, ozone depletion and toxic air pollution, and established a national permits program. The amendments once approved also established new auto gasoline reformulation requirements, set Reid Vapor Pressure (RVP) standards to control evaporative emissions from gasoline, and mandated that the new gasoline formulations be sold from May to September in many states.[6]

In accordance with Sections 111 and 112 of the CAA, the EPA established New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) to protect the public.[5]

In 1997, EPA Administrator Carol Browner of the Clinton Administration began tightening the Clean Air Act's National Ambient Air Quality Standards regarding permissible levels of the ground-level ozone that makes up smog and the fine airborne particulate matter that makes up soot. The decision came after months of public review of the proposed new standards, as well as long and fierce internal discussion within the Clinton administration, leading to the most divisive environmental debate of that decade. The new regulations were challenged in the courts by industry groups as a violation of the U.S. Constitution's nondelegation principle and eventually landed in the U.S. Supreme Court, whose 2001 unanimous ruling in Whitman v. American Trucking Associations, Inc. largely upheld Browner's and the EPA's actions.[11]

A second landmark Supreme Court case involving the Clean Air Act was Massachusetts v. EPA, 2007, in which the court agreed with Massachusetts and 11 other states that the EPA should regulate greenhouse gases.

The often confusing role of the EPA in enforcing the Clean Air Act should be seen in light of the shifting balance of Democratic and Republican party control of the White House and the executive branch of government. EPA was generally in favor of strong regulation during the Carter (1977 - 1981), Clinton (1993- 2001) and Obama (2009 - present) administrations, but tended to oppose environmental regulation in the Reagan and George H. Bush administrations (1981 - 1993) and the George W. Bush administration (2001- 2009).

The roles of the federal government and states

The Clean Air Act, Clean Water Act and other programs are federal, but states run more than 95 percent of EPA’s programs and 90 percent of the enforcement actions under State Implementation Plans (SIP). In exchange, the EPA funds many of the programs. However, electing a SIP is not mandatory and in some cases states have chosen to not accept responsibility for enforcement of the act and force the EPA to assume those duties.[12]

In order to take over compliance with the CAA the states must write and submit an SIP to the EPA for approval. A state implementation plan is a collection of the regulations a state will use to clean up polluted areas. The states are obligated to notify the public of these plans, through hearings that offer opportunities to comment, in the development of each state implementation plan. The SIP becomes the state's legal guide for local enforcement of the CAA. For example, in the case of Rhode Island, the Rhode Island General Law Title 23 Chapter 23 Section 2 (RIGL 23-23-2) states that it is a state policy requirement to comply with the Federal CAA (42 U.S.C. § 7401) through the SIP. The state SIP delegates permitting and enforcement responsibility to the state Department of Environmental Management (RI-DEM).[12]

The law recognizes that states should lead in carrying out the Clean Air Act, because pollution control problems often require special understanding of local industries, geography, housing patterns, etc. However, states are not allowed to have weaker pollution controls than the minimum criteria set for the whole country by the EPA. EPA must approve each SIP, and if a SIP isn't acceptable, EPA can take over, enforcing the Clean Air Act in that state.[12]

The United States government, through EPA, assists the states by providing scientific research, expert studies, engineering designs and money to support clean air programs.[12]

The Environmental Council of the States (ECOS), which represents the leaders of state environmental agencies, complained in April of 2011 that they are struggling with declining budgets and increasing paperwork from Washington. [13]

National Ambient Air Quality Standards

The Clean Air Act, which was last amended in 1990, requires EPA to set National Ambient Air Quality Standards (40 CFR part 50) for pollutants considered harmful to public health and the environment. The Clean Air Act established two types of national air quality standards. Primary standards set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly. Secondary standards set limits to protect public welfare, including protection against decreased visibility, damage to animals, crops, vegetation, and buildings. The EPA is required to set and review the standards every five years, and must base their analysis and policy changes on the most current scientific studies.[14]

The EPA Office of Air Quality Planning and Standards (OAQPS) has set National Ambient Air Quality Standards for six principal pollutants, which are called "criteria" pollutants: sulfur dioxide, particulate matter, nitrogen oxides, ozone, lead, and carbon monoxide. After the EPA sets or revises each standard and a timeline for implementation, the responsibility for meeting the standard falls to the states. Each state must submit an EPA-approved plan that shows how it will meet the standards and deadlines. These state plans are known as State Implementation Plans (SIPs)." [15]

Also see Clean Air Act Part A on Air Quality and Emission Standards and particularly the section on National ambient air quality standards.

Sulfur dioxide

In November 2009, the EPA proposed new National Ambient Air Quality Standards for sulfur dioxide, the first time since 1971 that the agency has recommended tightening controls on SO2 to protect public health. The old limits measured sulfur dioxide averages over 24-hour and one-year periods. The new rule would require one-hour measurements, such that a spike of emissions above a new limit — between 50 and 100 parts per billion in one hour — would no longer be acceptable.[16]

The new standard was issued on June 3, 2010.[17]

Ozone

The Ozone National Ambient Air Quality Standards (NAAQS) refers to proposed EPA regulations on ground-level ozone, a primary ingredient in smog linked to respiratory illnesses. In January 2010, EPA Administrator Lisa Jackson said tightening the nation's air-quality standard for ozone was "long overdue," and would save an estimated 12,000 lives a year and yield health benefits up to $100 billion annually in 2020. The EPA proposed setting the standard at between 60 and 70 parts per billion, down from the current 75 ppb, by the end of 2010.[18]

The EPA's proposal has the support of the American Lung Association and the American Medical Association, and is consistent with the recommendation of a 23-member panel of clean-air experts who advised the agency on the issue after reviewing more than 1,700 studies.[18]

In December 2010, the EPA said that it will not decide until July 2011 whether to tighten the national air-quality standard for ozone. In a Dec. 8 written statement, the EPA said it would ask the panel of clean-air experts for "further interpretation" of the studies they relied upon in making their recommendation, so as to ensure the agency's final decision "is grounded in the best science."[18]

In a written statement after the EPA delay, the American Lung Associations said it was "exploring legal options" aimed at requiring the EPA to make a decision on the issue. Based on EPA's own estimates, the group added, a six-month delay means an estimated 2,000 to 6,000 people "will lose their lives because they must breathe air pollution that would have been cleaned up if the EPA had met its most recent deadline of December 31, 2010."[18]

Particulate matter

A 2009 court ruling concluded that the EPA standards for the amount of soot permissible in the air on an annual average ignored the advice of scientific advisers by maintaining the standard established in 1997 and must be rewritten. That limit was 15 micrograms per cubic meter of air.[19]

In December 2012 the EPA issued its final NAAQS PM rules, tightening the federal soot standards by 20 percent - the most protective measure laid out in its June 2012 draft rule (12 micrograms per cubic meter of air). The agency will determine which areas are out of attainment in 2014, and the communities will then have six years to comply. The EPA estimates that 66 of the nation’s 3,033 counties will be found in violation of the new standard. It projects seven — all in California — will still be out of compliance by 2020.[20]

On Sept. 2, 2011, President Barack Obama announced a decision not to raise federal ozone standards for air pollution, citing regulatory burdens and the need for economic recovery. The weaker standard, at 0.075 ppm, would remain in place, Obama said.[21] The decision set off a storm of controversy and led to an Oct., 2011 suit against the Obama administration. [22]

Sulfur dioxide and the Acid Rain program

The Acid Rain program, created under Title IV of the Act in 1990, was enacted to address the problem of acid rain by curbing sulfur dioxide and nitrogen oxide emissions. The acid rain controls were implemented in two phases and placed a decreasing cap on emissions over several years.[23] Included in the 1990 amendments was a controversial provision allowing companies to buy, sell and trade pollution credits, provided they cut half of their overall emissions.[24] In 2005 the U.S. EPA approved the Clean Air Interstate Rule, requiring a 57 percent cut in sulfur dioxide emissions and a 61 percent cut in nitrogen oxide emissions from power plants by 2015.[25][26]

In November 2009, the EPA proposed new limits on sulfur dioxide (see NAAQS above).

Mercury and other Hazardous Air Pollutants (HAPs) regulation

Electric generating units and the MACT rule

On December 20, 2000, the EPA determined pursuant to CAA section 112(n)(1)(A) that it was appropriate and necessary to regulate coal- and oil-fired electric generating units (EGUs) under CAA section 112 and added such units to the CAA section 112(c) list of sources that must be regulated under CAA section 112(d). (December 2000 Finding; 65 FR 79,825.) Section 112 of the Clean Air Act requires national emission standards for Hazardous Air Pollutants (HAPs). The emission standards must reflect application of the maximum-achievable control technology (MACT). On March 29, 2005, EPA issued a final rule, in which it found that it was neither appropriate nor necessary to regulate coal- and oil-fired EGUs under section 112, and it removed such units from the CAA section 112(c) list of sources (“2005 Action”).[27]

Instead, on March 15, 2005, the EPA issued the Clean Air Mercury Rule (CAMR) to cap and reduce mercury emissions from coal-fired power plants for the first time ever.[28] On February 8, 2008, the DC Circuit struck down CAMR in New Jersey v. EPA, No. 05-1097 (D.C. Cir. Feb. 8, 2008), as the Act removed oil and coal-fired electric utility steam generating units (EGUs) from the list of sources of hazardous air pollutants and instead regulated the emissions through a cap-and-trade program. New Jersey, and several other states, municipal governments, and environmental groups, challenged CAMR claiming that EPA had no authority to delist the EGUs without providing a “specific finding” under section 112(c)(9) of the Clean Air Act. The DC Circuit agreed with the Petitioners, vacating both the delisting rule and CAMR.[29]

A parallel lawsuit filed by the Chesapeake Bay Foundation, Clean Air Task Force, Earthjustice, Natural Resources Defense Council (NRDC), Southern Environmental Law Center and Waterkeeper Alliance led to a US District Court order that EPA create rules for maximum achievable control technology (MACT) standard for emissions of mercury and other hazardous air pollutants (HAP) such as arsenic, lead, nickel, chromium and hydrochloric acid. [30]

After the ruling, the EPA began developing air toxics emissions standards for power plants under the Clean Air Act (Section 112), consistent with the D.C. Circuit’s opinion.

On March 16, 2011, EPA announced its proposed emissions standards to limit mercury, acid gases and other toxic pollution from power plants, to prevent an estimated 91 percent of the mercury in coal from being released to the air. The proposed rule covered national emission standards for hazardous air pollutants (NESHAP) from coal- and oil-fired electric utility steam generating units (EGUs) under Clean Air Act section 112(d), and proposed revised new source performance standards (NSPS) for fossil fuel-fired EGUs under CAA section 111(b).The EPA estimated that there are approximately 1,350 units affected by the action, including 1,200 existing coal-fired units.[31]

Utility reaction was critical. The Atlanta-based Southern Company said the regulations would cost $13 to $18 billion by 2020. [32] Georgia Power said it would cost nearly $7 billion and force the closing or upgrading of plants. [33] The EPA disagreed, saying in a statement: “[Utilities] have known that these emission reduction requirements were coming for many years now, and many have already taken many or all of the steps needed to comply.” [34]

Twenty five state governments, siding with the utilities, asked a federal court to delay implementation of the rule for a year, until November 19, 2012. [35]

In December 2011, the Obama administration announced the new rule to limit emissions of mercury, arsenic and other toxic substances from sources such as power plants. Under the new rule, power plants can emit 1.2 pounds of mercury per million BTUs of energy produced. Industry had sought a limit of 1.4 pounds, but the EPA arrived at its figure based on a formula set out under the Clean Air Act, and analysts said the agency could not deviate from it. Companies would have three years to clean up their emissions of mercury and about 70 other toxic substances, and utilities could appeal for at least one more year as they install the necessary equipment.[36]

Industrial Boilers and the MACT Rule

A parallel issue with regard to HAPs regulation through maximum-achievable control technology (MACT) involves specific industry groups, such as industrial, institutional, and commercial boilers. On Feb. 26, 2004, National Emission Standard for Hazardous Air Pollutants (NESHAP), commonly referred to as the Industrial Boiler MACT Rule, was finalized by the EPA. However, on June 8, 2007, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision to vacate the Industrial Boiler MACT Rule, and the EPA was required to rewrite it.[37]

In a motion filed on December 7, 2010, the EPA asked for an extension in a court-ordered schedule for issuing rules that would reduce harmful air emissions from large and small boilers and solid waste incinerators, which would cut emissions of pollutants, including mercury and soot. EPA was under court order to issue final rules on January 16, 2011 and was seeking in its motion to the court to extend the schedule to finalize the rules by April 2012. The agency said the additional time is needed "to re-propose the rules based on a full assessment of information received since the rules were proposed."[38]

On May 16, 2011, the L.A. Times reported that the Obama administration had decided to delay the toxins rule on boilers indefinitely,[39] although EPA Administrator Lisa Jackson has said the proposed rule for coal- and oil-fired electric generating units remains.[40]

The EPA estimates that there are more than 13,500 boilers and process heaters that will be subject to the Industrial Boiler Rule. The rule is expected to have the most significant impact on facilities that utilize coal- or biomass-burning boilers (solid-fuel-fired boilers), which would have to reduce emissions of mercury as well as particulate matter, carbon monoxide, and dioxin. The EPA estimates there are approximately 600 coal-fired boilers and 400 biomass-fired boilers that will be affected by the rule.[37]

On Oct. 12, 2011, the House of Representatives voted to delay the industrial boiler MACT rules in a 275 - 142 vote. Republicans, who prevailed in the vote, argued that the boiler MACT rules would cost the economy billions of dollars. Democrats, especially Jim Moran (VA) and Edward Markey (Mass) argued that repealing the rule would result in thousands of needless deaths. "If the regulation to remove mercury, lead and cancer-causing toxins from incinerators and industrial boilers, which is already 11 years overdue, is delayed for even one year, there will be 6,600 people who will die prematurely, and people will miss 320,000 days of work and school," said Markey.[41]

On December 2, 2011, under pressure from Republicans and industrial groups, the EPA proposed rules on boilers that are more flexible than ones the agency introduced in 2010. EPA's revised changes for boilers include additional subcategories, new emission limits and increased flexibility in compliance monitoring for meeting particle pollution and carbon monoxide limits. The agency also revised emission limits on incinerators, including those for dioxin and mercury.[42]

Under the new rule, more than 99 percent of the country's boilers, from heavy industry to small businesses and universities, are either clean enough and not subject to the new rules, or will only need to do tune ups and maintenance to comply. The rules allow some plants to do maintenance on equipment, avoiding costs from adding new controls or replacing boilers.[43] The EPA said it would finalize the reconsideration in spring 2012.[42]

However, on January 9, 2012, the DC Circuit Court of Appeals issued a ruling reinstating the original compliance deadlines, which require owners and operators of boilers and incinerators to install maximum achievable control technology to meet the best practice standards by March 21, 2012.[42]

Interstate air pollution and the Transport Rule

Air pollution often travels from its source in one state to another state. In many metropolitan areas, people live in one state and work or shop in another; air pollution from cars and trucks may spread throughout the interstate area. The 1990 Clean Air Act provides for interstate commissions on air pollution control, which are to develop regional strategies for cleaning up air pollution. The 1990 Clean Air Act includes other provisions to reduce interstate air pollution.[6]

In 2010, the EPA announced new air pollution standards for power plants in 31 states and the District of Columbia, know as the Transport Rule. The rules aim to limit pollution that drifts from upwind states into neighboring downwind states. Ohio coal plants, for example, are a cause of air pollution in Maryland.[44] Acting under federal court order, the Obama administration proposed the new air-quality rules on July 6, 2010, for coal-burning power plants. The pollutants being singled out in the new rule making — sulfur dioxide and nitrogen oxides — react in the atmosphere to form fine particulates and ground-level ozone (smog). They are easily carried by the wind and affect states and cities far downwind from the plants where they are produced.[45]

The proposed regulation would apply to power plants in 31 states east of the Rockies, with the exception of the Dakotas, Vermont, New Hampshire and Maine, replacing the EPA's 2005 Clean Air Interstate Rule (CAIR) and cutting sulfur-dioxide emissions by an additional 1 million tons and nitrogen-oxide emissions by 100,000 tons, as well as limiting inter-state trading of pollution allowances.[46] CAIR, passed under George W. Bush, would have allowed emissions sources in different states to trade with each other, but a D.C. Circuit Court (in North Carolina v. EPA, 531 F.3d 896) found the provision was not harmonious with the Clean Air Act, as the EPA should know the outcome of its rules in advance, at least at the state level. The transport rule responded to the ruling by largely eliminating interstate trading, although intra-state trading is still allowed.[47]

Gina McCarthy, head of the E.P.A.’s air and radiation office, said the new rules would reduce emissions of sulfur dioxide and nitrogen oxides by hundreds of thousands of tons a year and bring $120 billion in annual health benefits. Those benefits, Ms. McCarthy said, include preventing 14,000 to 36,000 premature deaths, 23,000 nonfatal heart attacks, 21,000 cases of acute bronchitis, 240,000 cases of aggravated asthma and 1.9 million missed school and work days. Additionally, the rule would substantially reduce unhealthy smog. The cost of compliance to utilities and other operators of power plants would be $2.8 billion a year, according to E.P.A. estimates.[46][48]

The proposed regulation will require utilities operating coal-burning plants to install scrubbers and other technology to reduce emissions of the pollutants. Some companies may decide to retire older plants rather than invest in new control measures because other new rules under the Clean Air Act are expected in the coming years. The new rules do not address power plant emissions of carbon dioxide and five other pollutants that contribute to global warming.[46]

Electric utility reactions to the MACT / HAPs rule proposal were sharp. The American Coalition for Clean Coal Electricity said the regulations would cost 1.3 million jobs and raise electric costs by 28 percent. [49] The Electric Reliability Council of Texas said: "We fear that many of the coal plants in ERCOT will be forced to limit or shut down operations in order to maintain compliance with the new rule." More time would be needed for compliance, they said. [50]

2010 report finds EPA underestimating benefits of Transport Rule

A 2010 report suggests the EPA is underestimating the net savings from SO2 and NOx regulations because it focuses almost exclusively on direct health costs, which does not capture the full impact of the pollution on the economy, such as "higher labor and health insurance costs, lost jobs, lost state and local tax revenue, and higher gasoline prices." The report, "Expensive Neighbors: The Hidden Cost of Harmful Pollution to Downwind Employers and Businesses" by electricity industry expert Dr. Charles J. Cicchetti finds that power plants without SO2 and NOx scrubbers are imposing an estimated $6 billion in annual costs on downwind businesses.[51]

Specifically, the report finds that, due to unscrubbed coal plants, between 2005 and 2012:[51]

  • Businesses will lose $47 billion in costs;
  • Over 360,000 jobs will be lost;
  • State and local governments will lose almost $9.3 billion in tax revenue;
  • Families and businesses in polluted areas will pay $26.0 billion more for reformulated gasoline as a result of ongoing pollution.

When these costs are added to health costs to individuals, the benefits of the EPA's upcoming Clean Air Transport Rule, which would put tighter limits on ozone pollution, "exceed compliance costs by about 100 times." Cicchetti concludes: "There are people who will argue that the benefits of a greener environment are fine when the country is at full employment. But when the country is suffering unemployment, when states are having trouble balancing budgets and businesses are having trouble keeping employees, we can't afford the investments and efforts to make the air cleaner. By drilling down to the employment and businesses effects, showing that those benefits outweigh the additional costs, I've tried to show that we should do it sooner rather than later, that it will reduce the costs of employment in affected areas and stimulate jobs. Now is a better time to get on with the task of making the air better and healthier."[51]

September - October, 2011: States challenge CSAPR Transport Rule

The attorney general of Kansas filed the first challenge against the Transport Rule on Sept. 20, 2011.[52] Other states, including Nebraska, Florida, Texas, Alabama, South Carolina, Oklahoma and Virginia filed lawsuits against the EPA in early October.[53] Minneapolis-based Xcel Energy also filed a lawsuit over the regulations on Oct. 7. [54]

Leak detection and repair

The Act requires industrial facilities to implement a Leak Detection and Repair (LDAR) program to monitor and audit a facility's fugitive emissions of volatile organic compounds (VOC). The program is intended to identify and repair components such as valves, pumps, compressors, flanges, connectors and other components that may be leaking. These components are the main source of the fugitive VOC emissions.[55]

Testing is done manually using a portable vapor analyzer that read in parts per million (ppm). Monitoring frequency, and the leak threshold, is determined by various factors such as the type of component being tested and the chemical running through the line. Moving components such as pumps and agitators are monitored more frequently than non-moving components such as flanges and screwed connectors. The regulations require that when a leak is detected the component be repaired within a set amount of days. Most facilities get 5 days for an initial repair attempt with no more than 15 days for a complete repair. Allowances for delaying the repairs beyond the allowed time are made for some components where repairing the component requires shutting process equipment down.[55]

Greenhouse gas emissions

In April 2007, the US Supreme Court extended the Clean Air Act to included global warming pollution. The court said in Massachusetts v. EPA, 549 U.S. 497 (2007) that the EPA violated the Clean Air act by not regulating greenhouse gas emissions, the major contributor to climate change.[56]

In the ruling, the Court said that the EPA Administrator must determine whether or not there was sufficient scientific evidence to support the statement "that emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare... The Supreme Court decision resulted from a petition for rulemaking under section 202(a) filed by more than a dozen environmental, renewable energy, and other organizations." (Section 202(a) of the Clean Air Act is titled "Emission standards for new motor vehicles or new motor vehicle engines.")[57]

In May 2007, President George W. Bush issued an executive order, the Clear Skies Initiative, proposing regulations on greenhouse gases weaker than those proposed by the EPA itself following the court order.[58] The American Clean Energy and Security Act in the form that it passed the US House of Representatives would strip the authority from EPA under the Clean Air Act to regulate green house gasses.[59]

April 2009: EPA declares greenhouse gases a threat to public health and welfare

On April 17, 2009 the EPA issued a “proposed endangerment finding” and a related proposed “cause or contribute finding” regarding greenhouse gases under section 202(a) of the Clean Air Act (section dealing with “Emission standards for new motor vehicles or new motor vehicle engines”). The EPA held a 60-day public comment period for these proposed findings, and received over 380,000 public comments. On December 7, 2009, the EPA issued two final findings regarding greenhouse gases under section 202(a) of the Clean Air Act: Endangerment Finding – The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.

Cause or Contribute Finding – The Administrator finds that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.[60][61][62]

December 2009: EPA finalizes green house gas endangerment finding

On December 7, 2009, EPA finalized its endangerment finding that greenhouse gases including carbon dioxide are a threat to human health and welfare. The announcement was the final step in the April 2007 Supreme Court ruling in Massachusetts v. EPA, which found that under the Clean Air Act, the EPA must regulate greenhouse gas emissions if they endanger public health and welfare. The EPA's decision paves the way for new regulation of emissions from power plants, factories, and automobiles. Announced on the first day of international climate talks at COP15 in Copenhagen, the move gives President Obama new regulatory powers that could help gain consensus in efforts to curb global warming. Both Obama and EPA Administrator Lisa Jackson have said they prefer climate change legislation as a means of regulating global warming pollution, but the finding provides an alternative means of establishing emissions limits if the legislation fails.[63][64] On December 15, 2009, the final findings were published in the Federal Register under docket ID [EPA-HQ-OAR-2009-0171; FRL-9091-8]. Further information on the findings may be found on the EPA website: http://epa.gov/climatechange/endangerment.html

March 2010: EPA Waits for 2013 to regulate carbon emissions from 50,000 to 75,000 tons a year

On March 3, 2010 EPA Administrator Lisa Jackson told the Senate Appropriations panel reviewing EPA's budget that the agency would focus on large polluters spewing more than 75,000 tons a year. “It will probably be at least two years before we would look at something like, say, a 50,000 threshold,” Jackson said. The initial phase of greenhouse-gas rules will go into effect in 2011 said Jackson.[65]

Senator John D. Rockefeller IV (D) of West Virginia on March 4, 2010 introduced legislation that would delay the EPA's carbon rules. The bill calls for a "two-year suspension" that will give Congress “the time it needs to address an issue as complicated and expansive as our energy future." Two House Democrats, West Virginia’s Nick Rahall and Virginia’s Rick Boucher, also introduced legislation that would put EPA's greenhouse gas regulations for so-called “stationary sources” on hold for two years. Rep. Rahall was co-author of the cap-and-trade bill that passed the House in June 2009 and would replace EPA direct regulation on carbon emissions.[66]

December 2010: EPA issues plan to regulate greenhouse gasses from power plants and petroleum refineries

On December 23, 2010, the EPA issued its plan for establishing greenhouse gas (GHG) pollution standards under the Clean Air Act in 2011. The agency looked at a number of sectors and is moving forward on GHG standards for fossil fuel power plants and petroleum refineries—two of the largest industrial sources, representing nearly 40 percent of the GHG pollution in the United States. Under the plan, EPA will propose standards for power plants in July 2011 and for refineries in December 2011 and will issue final standards in May 2012 and November 2012, respectively. EPA will accept public comment on the plans for 30 days following publication of notice in the Federal Register.[67]

The EPA regulation addresses existing sources, using the statutes of the Clean Air Act's New Source Performance Standards (NSPS) to impose limits in 2012 on the amount of CO2 the biggest polluters can emit. The EPA said it would cover 40 percent of U.S. emissions.[68].

The EPA has also been developing a permitting program for new (or substantially upgraded) sources. In May 2010, the EPA issued its "Tailoring Rule," determining which sources will need to get permits (very large sources). In November 2010, it issued "PSD and Title V Permitting Guidance for Greenhouse Gases," which detailed that the permitting program would be run much like existing permitting programs: through the states.[69]

The regulations will be applied to plants that were "grandfathered" (exempted) under the original Clean Air Act.[69]

February 9, 2011: Lisa Jackson defends global warming plan in Congress

On February 9, 2011, EPA Administrator Lisa Jackson made a trip to Capitol Hill to speak before the Energy and Power Subcommittee of the House Energy and Commerce Committee. Lisa Jackson came under fire from House Republicans who charged that the EPA's proposed emissions rules would mean "higher prices and fewer jobs." Lisa Jackson stated that a bill drafted by Rep. Fred Upton, R-Mich., to prevent the EPA from using the act to curb greenhouse gases, was "part of a broader effort in this Congress to delay, weaken, or eliminate Clean Air Act protections of the American public." It was the first time Jackson had visited Congress since the Republicans took control.[70]

Feb. 18, 2011: House votes to block EPA regulation of GHGs

On Feb. 18, 2011, the Republican-controlled House voted to block the Environmental Protection Agency from regulating greenhouse gases. The 249-177 vote added the regulation ban to a spending bill that would fund the government through Sept. 30, 2011. Texas Republican Ted Poe pressed the anti-EPA measure. His Texas district is home to many oil refineries.[71]

March 2011: Inhofe-Upton introduce bill to prevent any federal CO2 regulation

On March 3, 2011, Senator James Inhofe, Republican of Oklahoma, and Representative Fred Upton, Republican of Michigan, formally introduced the “Energy Tax Prevention Act,” a bill that they said would reverse the EPA’s finding that carbon dioxide and other heat-trapping greenhouse gases are a danger to human health and the environment. According to Inhofe: “The Energy Tax Prevention Act stops cap-and-trade regulations from taking effect once and for all." The bill has 42 co-sponsors in the Senate, all Republicans. In the House, three Democrats joined Upton and his Republican co-sponsors - Nick Rahall of West Virginia, Dan Boren of Oklahoma and Collin Peterson of Minnesota, reportedly to protect key industries in their states – coal, oil and agriculture – that would be affected by greenhouse gas regulations.[46]

The Inhofe-Upton bill allows many Clean Air Act programs to continue, but takes away the agency’s authority to apply the landmark law to carbon dioxide. A deal negotiated with automakers to limit carbon dioxide emissions from cars and light trucks would be allowed to stand through 2016, but no further greenhouse gas emissions rules for vehicles would be permitted. State programs to try to address global warming and carbon emissions would be allowed to continue.[46]

March 2013: Effort to close loopholes in Clean Air Act and Clean Water Act

On March 14, 2013 Congressman Matt Cartwright (PA) and Congressman Jared Polis (CO) introduced two bills in the U.S. House of Representatives to close loopholes in the Clean Air Act and Clean Water Act for fracking operations. he two bills introduced today—titled the “Bringing Reductions to Energy’s Airborne Toxic Health Effects”, or BREATHE Act, and the “Focused Reduction of Effluence and Stormwater runoff through Hydrofracking Environmental Regulation,” or FRESHER Act.

Specifically, the BREATHE Act, introduced by the two Congressmen and at least 32 co-sponsors, would close a loophole in the Clean Air Act that currently allows the oil and gas industry to release large amounts of pollution into the air, and lists hydrogen sulfide as a hazardous air pollutant. The FRESHER Act, introduced by Congressmen Cartwright and Polis and at least 37 co-sponsors, would close a loophole in the Clean Water Act that exempts the oil and gas industry from permitting requirements for industrial stormwater runoff.[72]

Hazardous air pollutants

On March 16, 2011, the U.S. Environmental Protection Agency (EPA) announced its proposed emissions standards to limit mercury, acid gases and other toxic pollution from power plants. The EPA estimates that there are approximately 1,350 units affected by the action, including 1,200 existing coal-fired units.[31]

Benefits of the Clean Air Act

Clean Air Act regulations and jobs

A 2011 report by Ceres, "New Jobs - Cleaner Air" found that updated EPA rules on air pollution could create nearly 1.5 million jobs over the next five years. Engineering, construction and pipefitting are some of the professions that could see a rise in jobs through investments to comply with the Clean Air Act. Ceres is a coalition of environmentalists and institutional investors, and the report was produced by researchers at University of Massachusetts Political Economy Research Institute. It quoted the Office of Management and Budget, which said in 2003 that every dollar spent on compliance with the act since 1970 has led to $4 to $8 in economic benefits. In addition, the clean air rules can create jobs not counted in the report, such as in exports of domestically produced technologies like scrubbers that capture pollutants before they reach smokestacks. The report looked at EPA rules designed to reduce emissions in the eastern half of the country of smog-causing chemicals, known as the Transport Rule, and to cut output of mercury and other hazardous pollutants from boilers, known as the Utility Maximum Achievable Control Technology (MACT) rule.[73]

EPA: Health and jobs benefits add up to $2 trillion by 2020

Avoided Health Impacts: 2010 and 2020 (projected)

According to an EPA report released in March 2011, "The Benefits and Costs of the Clean Air Act from 1990 to 2020", the annual dollar value of benefits of air quality improvements from 1990 to 2020 will reach a level of approximately $2.0 trillion in 2020. The benefits would be achieved as a result of Clean Air Act Amendment-related programs and regulatory compliance actions, estimated to cost approximately $65 billion by 2020.

Most of the benefits (about 85 percent) are attributable to reductions in premature mortality associated with reductions in ambient particulate matter: "as a result, we estimate that cleaner air will, by 2020, prevent 230,000 cases of premature mortality in that year" (Introduction). The remaining benefits are roughly equally divided among three categories of human health and environmental improvement: preventing premature mortality associated with ozone exposure; preventing morbidity, including acute myocardial infarctions and chronic bronchitis; and improving the quality of ecological resources and other aspects of the environment.

According to the report: "The very wide margin between estimated benefits and costs, and the results of our uncertainty analysis, suggest that it is extremely unlikely that the monetized benefits of the CAAA over the 1990 to 2020 period reasonably could be less than its costs, under any alternative set of assumptions we can conceive. Our central benefits estimate exceeds costs by a factor of more than 30 to one, and the high benefits estimate exceeds costs by 90 times. Even the low benefits estimate exceeds costs by about three to one."

2010 Harvard analysis

Harvard Professor Dale W. Jorgenson, a dean of macroeconomic modeling, calculated that gross domestic product in 2010 was 1.5 percent higher because of the Clean Air Act of 1970, due to savings in health and environmental costs.[74]

Recent political developments Clean Air Act

Following Republican election victories in November, 2010, and the seating of a Republican-controlled House of Representatives in January, 2011, the Clean Air Act has come under heavy fire. Although most of the Republican votes are unlikely to pass the Democratic Senate, or a presidential veto, final implementation of key portions of the 20-year-old Clean Air Act has stalled.

Two of the most significant House votes on the Clean Air Act were:

  • Oct 12, 2011 -- EPA Regulatory Relief Act (H.R. 2250) -- delays EPA's MACT boiler rules.
  • Sept. 23, 2011 -- TRAIN Act (H.R. 2401) -- delays the Cross-State Air Pollution Rule and MACT rule. (TRAIN stands for Transparency in Regulatory Analysis of Impacts on the Nation.)

Altogether, the House voted 168 times this year to undercut clean air and other environmental laws, according to the New York Times. [75]

Legal challenges against the Clean Air Act by states included:

  • A series of lawsuits filed by eight states against the Transport rule in September and October, 2011;
  • A lawsuit by 25 states against the MACT rule filed in October, 2011.

Challenges by environmental groups, on the other hand, included an Oct., 2011 suit against the Obama administration for rejecting stronger ozone standards. [76]

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References

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