CRS Report RL30022: Summaries of Environmental Laws Administered by the EPA

Summaries of Environmental Laws
Administered by the EPA

Congressional Research Service Report RL30022
Redistributed as a service of the National Library for the Environment

Requirements for Particulate Nonattainment Areas.
Particulate (PM₁₀) nonattainment areas are also subject to specified control requirements. These are:

Particulate Matter Requirements

Moderate Areas

Require permits for new and modified major stationary sources of PM₁₀.

Impose reasonably available control measures (RACM).

Serious Areas

Impose best available control measures (BACM).

Reduce definition of a major source of PM₁₀ from 100 tons per year to 70 tons per year.

In July 1997, EPA promulgated new standards for fine particulates (PM_2.5). The PM_2.5 standards will not be implemented for several years, however, because of the absence of a monitoring network capable of measuring the pollutant. Under P.L. 105-178 Title VI, EPA has until December 2005 to designate nonattainment areas for PM_2.5. States will have 3 years subsequent to designation to submit State Implementation Plans.

Title II of the Clean Air Act has required emission standards for automobiles since 1968. The 1990 amendments significantly tightened these standards: for cars, the hydrocarbon standard was reduced by 40% and the nitrogen oxides (NO_x) standard by 50%. The new standards -- referred to as "Tier 1" standards -- were phased in over the 1994-1996 model years.

The amendments envisioned a further set of reductions ("Tier 2" standards), but not before model year 2004. For Tier 2 standards to be promulgated, the Agency was first required to report to Congress concerning the need for further emission reductions, the availability of technology to achieve such reductions, and the cost-effectiveness of such controls compared to other means of attaining air quality standards. EPA submitted this report to Congress in August 1998, and must decide whether to promulgate Tier 2 standards by December 31, 1999.

The 1990 amendments also required that oxygenated gasoline, designed to reduce emissions of carbon monoxide, be sold in the worst CO nonattainment areas and that "reformulated" gasoline (RFG), designed to reduce emissions of volatile organic compounds and toxic air pollutants, be sold in the nine worst ozone nonattainment areas (Los Angeles, San Diego, Houston, Baltimore, Philadelphia, New York, Hartford, Chicago, and Milwaukee); a tenth area, Sacramento, was added in 1996. Other ozone nonattainment areas can opt in to the RFG program; as of 1998, 18 areas in 12 states and the District of Columbia had done so.

Use of alternative fuels and development of cleaner engines was to be stimulated by three programs. First, under Section 209(b) of the Act, California is allowed to develop emission standards more stringent than the federal, which other states may then adopt. California has used this authority to develop a program requiring low emission vehicles (LEVs), ultralow emission vehicles (ULEVs), and zero emission vehicles (ZEVs), and several Northeastern states have adopted similar requirements. Second, EPA was required to develop a pilot program for the sale and use of 150,000 clean-fuel vehicles in California in each of the years 1996-1998, and 300,000 vehicles annually thereafter. Clean fuels include methanol, ethanol, reformulated gasoline, reformulated diesel, natural gas, liquefied petroleum gas, propane, hydrogen, or electricity. Third, in all of the most seriously polluted ozone and CO nonattainment areas, centrally fueled fleets of 10 or more vehicles must purchase at least 30% clean-fuel vehicles when they add new vehicles to existing fleets, starting in 1998. The percentage rises to 50% in 1999 and 70% in 2000.

The 1990 amendments also imposed tighter requirements on certification (an auto's useful life is defined as 100,000 miles instead of the earlier 50,000 miles), on emissions allowed during refueling, on low temperature CO emissions, on in-use performance over time, and on warranties for the most expensive emission control components (8 years/80,000 miles for the catalytic converter, electronic emissions control unit, and onboard emissions diagnostic unit). Regulations were also extended to include nonroad fuels and engines.

Standards for trucks and buses using diesel engines were also strengthened. The 1990 amendments required new urban buses to reduce emissions of diesel particulates 92% by 1996, and all other heavy-duty diesel engines to achieve an 83% reduction by the same year. NO_x emissions must also be reduced, 63% by 1998.

Completely rewritten by the Clean Air Act Amendments of 1990, Section 112 of the Act establishes programs for protecting the public health and environment from exposure to toxic air pollutants. As revised by the 1990 amendments, the section contains four major provisions: Maximum Achievable Control Technology (MACT) requirements; health-based standards; standards for stationary "area sources" (small, but numerous sources, such as gas stations or dry cleaners, that collectively emit significant quantities of hazardous pollutants); and requirements for the prevention of catastrophic releases.

First, EPA is to establish technology-based emission standards, called MACT standards, for sources of 188 pollutants listed in the legislation, and to specify categories of sources subject to the emission standards.⁽³⁾ EPA is to revise the standards periodically (at least every 8 years). EPA can, on its initiative or in response to a petition, add or delete substances or source categories from the lists.

Section 112 establishes a presumption in favor of regulation for the designated chemicals; it requires regulation of a designated pollutant unless EPA or a petitioner is able to show "that there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to human health or adverse environmental effects."

EPA is required to set standards for sources of the listed pollutants that achieve "the maximum degree of reduction in emissions" taking into account cost and other non-air-quality factors. The standards for new sources "shall not be less stringent than the most stringent emissions level that is achieved in practice by the best controlled similar source." The standards for existing sources may be less stringent than those for new sources, but must be no less stringent than the emission limitations achieved by either the best performing 12% of existing sources (if there are more than 30 such sources in the category or subcategory) or the best performing 5 similar sources (if there are fewer than 30). Existing sources are given 3 years following promulgation of standards to achieve compliance, with a possible 1-year extension; additional extensions may be available for special circumstances or for certain categories of sources. Existing sources that achieve voluntary early emissions reductions will receive a 6-year extension for compliance with MACT.

The second major provision of Section 112 directs EPA to set health-based standards to address situations in which a significant residual risk of adverse health effects or a threat of adverse environmental effects remains after installation of MACT. This provision requires that EPA, after consultation with the Surgeon General of the United States, submit a report to Congress on the public health significance of residual risks, and recommend legislation regarding such risks. If Congress does not legislate in response to EPA's recommendations, then EPA is required to issue standards for categories of sources of hazardous air pollutants as necessary to protect the public health with an ample margin of safety or to prevent an adverse environmental effect. A residual risk standard is required for any source emitting a cancer-causing pollutant that poses an added risk to the most exposed person of more than 1-in-a-million. Residual risk standards would be due 8 years after promulgation of MACT for the affected source category. Existing sources would have 90 days to comply with a residual risk standard, with a possible 2-year extension. In general, residual risk standards do not apply to area sources.

The law directed EPA to contract with the National Academy of Sciences (NAS) for a study of risk assessment methodology, and created a Risk Assessment and Management Commission to investigate and report on policy implications and appropriate uses of risk assessment and risk management. In 1994 NAS published its report, Science and Judgment in Risk Assessment. The Commission study, Framework for Environmental Health Risk Management, was released in 1997.

Third, in addition to the technology-based and health-based programs for major sources of hazardous air pollution, EPA is to establish standards for stationary "area sources" determined to present a threat of adverse effects to human health or the environment. The provision requires EPA to regulate the stationary area sources responsible for 90% of the emissions of the 30 hazardous air pollutants that present the greatest risk to public health in the largest number of urban areas. In setting the standard, EPA can impose less stringent "generally available" control technologies, rather than MACT.

Finally, Section 112 addresses prevention of sudden, catastrophic releases of air toxics by establishing an independent Chemical Safety and Hazard Investigation Board. The Board is responsible for investigating accidents involving releases of hazardous substances, conducting studies, and preparing reports on the handling of toxic materials and measures to reduce the risk of accidents.

EPA is also directed to issue prevention, detection, and correction requirements for catastrophic releases of air toxics by major sources. Section 112(r) requires owners and operators to prepare risk management plans including hazard assessments, measures to prevent releases, and a response program.

Section 111 of the Act requires EPA to establish nationally uniform, technology-based standards (called New Source Performance Standards, or NSPS) for categories of new industrial facilities. These standards accomplish two goals: first, they establish a consistent baseline for pollution control that competing firms must meet, and thereby remove any incentive for states or communities to weaken air pollution standards in order to attract polluting industry; and second, they preserve clean air to accommodate future growth, as well as for its own benefits.

NSPS establish maximum emission levels for new or extensively modified major stationary sources -- powerplants, steel mills, and smelters, for example -- with the emission levels determined by the best "adequately demonstrated" continuous control technology available, taking costs into account. EPA must regularly revise and update NSPS applicable to designated sources as new technology becomes available, since the goal is to prevent new pollution problems from developing and to force the installation of new control technology.

Prior to 1990, solid waste incinerators, which emit a wide range of pollutants, were subject to varying degrees of state and federal regulation depending on their size, age, and the type of waste burned. In a new Section 129, the 1990 amendments established more consistent federal requirements specifying that emissions of 10 categories of pollutants be regulated at new and existing incinerators burning municipal solid waste, medical waste, and commercial and industrial waste. The amendments also established emissions monitoring and operator training requirements.

Sections 160-169 of the act establish requirements for the prevention of significant deterioration of air quality (PSD). The PSD program reflects the principle that areas where air quality is better than that required by NAAQS should be protected from significant new air pollution even if NAAQS would not be violated.

The Act divides clean air areas into three classes, and specifies the increments of SO₂ and particulate pollution allowed in each. Class I areas include international and national parks, wilderness and other pristine areas; allowable increments of new pollution are very small. Class II areas include all attainment and not classifiable areas, not designated as Class I; allowable increments of new pollution are modest. Class III represents selected areas that states may designate for development; allowable increments of new pollution are large (but not exceeding NAAQS). Through an elaborate hearing and review process, a state can have regions redesignated from Class II to Class III (although none have yet been so redesignated).

While the 1977 amendments only stipulated PSD standards for two pollutants, SO₂ and particulates, EPA is supposed to establish standards for other criteria pollutants. Thus far, only one of the other four has been addressed: the Agency promulgated standards for NO₂ in 1988.

Newly constructed polluting sources in PSD areas must install best available control technology (BACT) that may be more strict than that required by NSPS. The justifications of the policy are that it protects air quality, provides an added margin of health protection, preserves clean air for future development, and prevents firms from gaining a competitive edge by "shopping" for clean air to pollute.

In Sections 169A and B, the Act also sets a national goal of preventing and remedying impairment of visibility in national parks and wilderness areas, and requires EPA to promulgate regulations to assure reasonable progress toward that goal. In the 1990 Amendments, Congress strengthened these provisions, which had not been implemented.

The amendments required EPA to establish a Grand Canyon Visibility Transport Commission, composed of Governors from each state in the affected region, an EPA designee, and a representative of each of the national parks or wilderness areas in the region. Other visibility transport commissions can be established upon EPA's discretion or upon petition from at least two states. Within 18 months of receiving a report from one of these commissions, EPA is required to promulgate regulations to assure reasonable progress toward the visibility goal, including requirements that states update their State Implementation Plans to contain emission limits, schedules of compliance, and other measures necessary to make reasonable progress. Specifically mentioned is a requirement that states impose Best Available Retrofit Technology on existing sources of emissions impairing visibility.

The Grand Canyon Commission delivered a set of recommendations to EPA in June 1996, and the Agency subsequently proposed a "regional haze" program applicable to all 50 states under this authority.

The Clean Air Act Amendments of 1990 added an acid deposition control program (Title IV) to the Act. It sets goals for the year 2000 of reducing annual SO₂ emissions by 10 million tons from 1980 levels and reducing annual NO_x emissions by 2 million tons, also from 1980 levels.

The SO₂ reductions are imposed in two steps. Under Phase 1, owners/operators of 111 electric generating facilities listed in the law that are larger than 100 megawatts had to meet tonnage emission limitations by January 1, 1995. This would reduce SO₂ emission by about 3.5 million tons. Phase 2 would include facilities larger than 75 megawatts.

To introduce some flexibility in the distribution and timing of reductions, the Act creates a comprehensive permit and emissions allowance system. An allowance is a limited authorization to emit a ton of SO₂. Issued by EPA, the allowances would be allocated to Phase 1 and Phase 2 units in accordance with baseline emissions estimates. Powerplants which commence operation after November 15, 1990 would not receive any allowances. These new units would have to obtain allowances (offsets) from holders of existing allowances. Allowances may be traded nationally during either phase. The law also permits industrial sources and powerplants to sell allowances to utility systems under regulations to be developed by EPA. Allowances may be banked by a utility for future use or sale.

The Act provided for two types of sales to improve the liquidity of the allowance system and to ensure the availability of allowances for utilities and independent power producers who need them. First, a special reserve fund consisting of 2.8% of Phase 1 and Phase 2 allowance allocations has been set aside for sale. Allowances from this fund (25,000 annually from 1993-1999 and 50,000 thereafter) are sold at a fixed price of $1,500 an allowance. Independent power producers have guaranteed rights to these allowances under certain conditions. Second, an annual, open auction sells allowances (150,000 from 1993-1995, and 250,000 from 1996-1999) with no minimum price. Utilities with excess allowances may have them auctioned off at this auction, and any person may buy allowances.

The Act essentially caps SO₂ emissions at individual existing sources through a tonnage limitation, and at future plants through the allowance system. First, emissions from most existing sources are capped at a specified emission rate times an historic baseline level. Second, for plants commencing operation after November 15, 1990, emissions must be completely offset with additional reductions at existing facilities beginning after Phase 2 compliance. However, as noted above, the law provides some allowances to future powerplants which meet certain criteria. The utility SO₂ emission cap is set at 8.9 million tons, with some exceptions.

The Act provides that if an affected unit does not have sufficient allowances to cover its emissions, it is subject to an excess emission penalty of $2,000 per ton of SO₂ and required to reduce an additional ton of SO₂ the next year for each ton of excess pollutant emitted.

The Act also requires EPA to inventory industrial emissions of SO₂ and to report every 5 years, beginning in 1995. If the inventory shows that industrial emissions may reach levels above 5.60 million tons per year, then EPA is to take action under the Act to ensure that the 5.60 million ton cap is not exceeded.

The Act requires EPA to set specific NO_x emission rate limitations--0.45 lb. per million Btu for tangentially-fired boilers and 0.50 lb. per million Btu for wall-fired boilers -- unless those rates can not be achieved by low-NO_x burner technology. Tangentially and wall-fired boilers affected by Phase 1 SO₂ controls must also meet NO_x requirements. EPA is to set emission limitations for other types of boilers by 1997 based on low-NO_x burner costs, which EPA did. In addition, EPA is to propose and promulgate a revised new source performance standard for NO_x from fossil fuel steam generating units, which EPA also did, in 1998.

The Clean Air Act Amendments of 1990 added a Title V to the Act which requires states to administer a comprehensive permit program for the operation of sources emitting air pollutants. These requirements are modeled after similar provisions in the Clean Water Act. Previously, the Clean Air Act contained limited provision for permits, requiring only new or modified major stationary sources to obtain construction permits (under Section 165 of the Act).

Sources subject to the permit requirements generally include major sources that emit or have the potential to emit 100 tons per year of any regulated pollutant, plus stationary and area sources that emit or have potential to emit lesser specified amounts of hazardous air pollutants. However, in nonattainment areas, the permit requirements also include sources which emit as little as 50, 25, or 10 tons per year of VOCs, depending on the severity of the region's nonattainment status (serious, severe, or extreme).

States were required to develop permit programs and to submit those programs for EPA approval by November 15, 1993. EPA had one year to approve or disapprove a state's submission in whole or in part. After the effective date of a state plan, sources had 12 months to submit an actual permit application.

States are to collect annual fees from sources sufficient to cover the "reasonable costs" of administering the permit program, with revenues to be used to support the agency's air pollution control program. The fee must be at least $25 per ton of regulated pollutants (excluding carbon monoxide). Permitting authorities have discretion not to collect fees on emissions in excess of 4,000 tons per year and may collect other fee amounts, if appropriate.

The permit states which air pollutants a source is allowed to emit. As a part of the permit process, a source must prepare a compliance plan and certify compliance. The term of permits is limited to no more than 5 years; sources are required to renew permits at that time. State permit authorities must notify contiguous states of permit applications that may affect them; the application and any comments of contiguous states must be forwarded to EPA for review. EPA can veto a permit; however, this authority is essentially limited to major permit changes. EPA review need not include permits which simply codify elements of a state's overall clean air plan, and EPA has discretion to not review permits for small sources. Holding a permit to some extent shields a source from enforcement actions: the Act provides that a source cannot be held in violation if it is complying with explicit requirements addressed in a permit, or if the state finds that certain provisions do not apply to that source.

Section 113 of the Act, which was also strengthened by the 1990 amendments, covers enforcement. The section establishes federal authority to issue agency and court orders requiring compliance and to impose penalties for violations of Act requirements. Section 114 authorizes EPA to require sources to submit reports; to monitor emissions; and to certify compliance with the Act's requirements, and authorizes EPA personnel to conduct inspections.

Like most federal environmental statutes, the Clean Air Act is enforced primarily by states or local governments; they issue most permits, monitor compliance, and conduct the majority of inspections. The federal government functions as a backstop, with authority to review state actions. The Agency may act independently or may file its own enforcement action in cases where it concludes that a state's response was inadequate.

The Act also provides for citizen suits both against persons (including corporations or government agencies) alleged to have violated emissions standards or permit requirements, and against EPA in cases where the Administrator has failed to perform an action that is not discretionary under the Act. Citizen groups have often used the latter provision to compel the Administrator to promulgate regulations required by the statute.

The 1990 Amendments elevated penalties for some knowing violations from misdemeanors to felonies; removed the ability of a source to avoid an enforcement order or civil penalty by ceasing a violation within 60 days of notice; gave authority to EPA to assess administrative penalties; and authorized $10,000 awards to persons supplying information leading to convictions under the Act.

Title VI of the 1990 Clean Air Act Amendments represents the United States' primary response on the domestic front to the ozone depletion issue. It also implements the U.S. international responsibilities under the Montreal Protocol on Substances that Deplete the Ozone Layer (and its amendments). Indeed, Section 606(a)(3) provides that the Environmental Protection Agency shall adjust phase-out schedules for ozone depleting substances in accordance with any future changes in Montreal Protocol schedules. As a result, the phase-out schedules contained in Title VI for various ozone depleting compounds have now been superseded by subsequent amendments to the Montreal Protocol.

Since passage of Title VI, depleting substances such as CFCs, methyl chloroform, carbon tetrachloride, and halons (referred to as Class 1 substances) have been phased out by industrial countries, including the United States. New uses of hydrochlorofluorocarbons (HCFCs) (called Class 2 substances under Title VI) are banned beginning January 1, 2015, unless the HCFCs are recycled, used as a feedstock, or used as a refrigerant for appliances manufactured prior to January 1, 2020. Production of HCFCs is to be frozen January 1, 2015 and phased out by January 1, 2030. Exemptions consistent with the Montreal Protocol are allowed.

The EPA is required to add any substance with an ozone depletion potential (ODP) of 0.2 or greater to the list of Class 1 substances and set a phase-out schedule of no more than seven years. For example, methyl bromide (ODP estimated by EPA at 0.7) was added to the list in December 1993, requiring its phaseout by January 1, 2001; this decision was altered by Congress in 1998 to harmonize the U.S. methyl bromide phase-out schedule with the 2005 deadline set by the parties to the Montreal Protocol in 1997. Also, EPA is required to add any substance that is known or may be reasonably anticipated to harm the stratosphere to the list of Class 2 substances and set a phase-out schedule of no more than ten years.

Title VI contains several implementing strategies to avoid releases of ozone depleting chemicals to the atmosphere, including: (1) for Class 1 substances used as refrigerant -- lowest achievable level of use and emissions, maximum recycling, and safe disposal required by July 1, 1992; (2) for servicing or disposing refrigeration equipment containing Class 1 and 2 substances -- venting banned as of July 1, 1992; (3) for motor vehicle air conditioners containing Class 1 or 2 substances -- recycling required by January 1, 1992 (smaller shops by January 1, 1993); (4) sale of small containers of class 1 and 2 substances -- banned within 2 years of enactment; and (5) nonessential products -- banned within 2 years of enactment

U.S. Environmental Protection Agency. The Clean Air Act Amendments of 1990 Detailed Summary of Titles. Washington. 1990.

2. Unlike the other NAAQS pollutants, ozone is not directly emitted, but rather is formed in the atmosphere by the interaction of volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the presence of sunlight. The control of ozone is thus based on regulating emissions of VOCs and NOx.

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