MOVE TO BREATHE

Title II regulates mobile sources of air pollution like cars, trucks, and airplanes. EPA can set standards for these mobile sources. With a notable exception, states are prohibited from adopting their own standards. The purpose of this preemption was to allow car companies and engine manufacturers reliability and prevent a patchwork of state regulations from making interstate sales of cars and engines more difficult. However, because it had adopted standards prior to the Clean Air Act and had and has serious problems with air pollution, California was allowed to adopt more stringent standards that those passed by EPA. Other states are then allowed to adopt the California standards in lieu of the federal standards, but are still prohibited from adopting their own, different, standards.

Regulations under Title II have become important in EPA’s actions to address climate change. During the Bush Administration, several states and environmental groups petitioned EPA asking it to regulate GHGs emissions from motor vehicles. EPA denied the petition claiming that it lacked authority to regulate carbon dioxide and other GHGs and even if it did, policy considerations supported not regulating these emissions. The petitioners challenged this decision in court, which eventually lead to the landmark case of Massachusetts v. EPA. In Massachusetts, the Supreme Court ruled that carbon dioxide and other GHGs were “pollutants” under the Clean Air Act and that EPA may not look outside the text of the Clean Air Act and refuse to issue regulations for other “policy” considerations.

During the Obama Administration, EPA issued its first GHGs standards for new cars. Interestingly, under a long standing EPA regulation and interpretation, this meant that major new stationary sources of GHGs were now subject to New Source Review. The regulation of GHGs under Title II has also lead to EPA proposing New Source Performance Standards for GHGs from electric generating units like coal and natural gas power plants.

Title III contains the general provisions of the Clean Air Act. The most important part of this Title is the citizen suit provision. When first passed in 1970, the citizen suit provision of the Clean Air Act was a bold first. Prior to the 1970’s Clean Air Act, there were very few opportunities for citizens to be directly involved with the enforcement of laws and regulations. Now citizens can be there to step in when the state and federal governments can’t or simply won’t enforce the requirements of the Clean Air Act. The citizen suit provision allows any “person” to file suit in federal court. “Person” is defined very broadly to include individuals, corporations, partnerships, municipalities, and States.

The citizen suit provision has a couple of important caveats. First, to sue a violator in federal court under the Clean Air Act, the requirement must be part of the State Implementation Plan (SIP) approved by EPA. Not all requirements under state law are incorporated into the SIP. For instance, in Oregon there are additional requirements in the Portland Metro area that have not been incorporated into the Oregon SIP; citizens therefore cannot sue a source in federal court for violating these requirements.

In most circumstances citizens also have to give the source, the state, and the federal government “notice” before filing suit. This is done in an “Intent to Sue” letter that lays out why the citizen believes the source violated the Clean Air Act. The citizen must wait 60 days after giving notice to file in federal court. This gives the state and federal governments an opportunity to bring their own lawsuit, which preempts filing a citizen suit, though citizens can join the state or federal lawsuit under most circumstances. The notice also gives the violator an opportunity to fix the violation or negotiate a settlement with the citizen. The notice requirement does not apply if the source is proposing to construct or constructing in violation of New Source Review permitting requirements or is violating the terms New Source Review construction permit.

The citizen suit provision allows citizens to seek injunctive relief in which a federal judge orders a company or individual to undertake some action or prohibits them from taking some action. In other words, remedy the violation. Violations of the Clean Air Act also subject sources to civil penalties, currently up to $37,500 per day per violation.

The citizen suit provision also gives citizens the right to sue the Environmental Protection Agency (EPA) for failure to perform a non-discretionary duty. For instance, the Clean Air Act requires EPA to update NSPS and NESHAPs on a set time table. If EPA fails to meet this time table, which it often does, citizens can sue EPA to force the updates.

Added with the 1990 Clean Air Act Amendments, Title IV is aimed at addressing the problem of acid rain. Acid rain is caused by the presence of sulfur and nitrogen oxides. These pollutants, when trapped in the water vapor of clouds, form sulfuric and nitric acid. Acid rain causes significant damage to plants and wildlife. Title IV regulates the emissions of sulfur and nitrogen oxides, mainly from electric generating units like coal and natural gas power plants through a cap-and-trade system of allowances. The first phase, implemented in 1995, targeted the largest sources in the East and Midwest. The second phase, implemented in 2000, expanded the scope of the program.

Title V was added to the Clean Air Act with the 1990 Amendments and is probably the most visible part of the Clean Air Act to the general public. However, the role of Title V is often misunderstood. Title V was added to address a very specific problem. Prior to 1990, a large number of facilities had multiple construction or modification permits. For instance, if an existing facility added a large emergency generator, it would get a construction permit, but only for that generator. This meant that the requirements a facility was subject to were contained in multiple permits. This made it hard for sources to know for sure that they were doing everything they were supposed to be doing and it made it hard for regulators and citizens to assess whether a source was in compliance with the Clean Air Act.

Congress’s solution, at least for large sources, was Title V. Title V establishes an operating permit requirement for large sources. These large sources are required to apply for a Title V operating permit. This operating permit includes all of the applicable requirements for that source, making it much easier to assess compliance. Title V does not add any new requirements, it simply rolls all existing requirements into one place.

Despite the fact that it does not add any new requirements, Title V is important for a number of reasons. It makes it much easier to assess compliance with Clean Air Act requirements. The five year permit term means that the regulators and sources must assess changes to regulations on a regular, if extended, basis. Title V also includes public notice and comment requirements which allow the public to review regulators’s determinations of applicable requirements. Title V also allows citizens to petition EPA to object to state regulators’ determinations.

On the whole, while not adding any new requirements, Title V is an important part of the Clean Air Act because it aggregates all requirements in one place and provides more public oversight of the regulation of the largest sources of air pollution.

Most people born after 1990 wouldn’t even know that at one point the international community was concerned about ozone depletion and something called the “Ozone Hole.” The Ozone Layer is a portion of the upper atmosphere that contains ozone (O3). Unlike ground-level ozone which is a health hazard, this atmospheric ozone is vitally important in blocking ultraviolet (UV) radiation from the sun. In the 1970’s, data showed a small but steady decrease in the concentration of ozone in this layer of the stratosphere. In the 1980’s researchers discovered a large area over Antarctica where ozone levels were significantly depressed, a phenomenon referred to as the Ozone Hole.

Response to ozone depletion was tepid until the the discovery of the Ozone Hole. In 1987, representatives from 43 countries signed the Montreal Protocol. The Montreal Protocol froze production levels of chlorofluorocarbons (CFCs) and signatories agreed to reduce production levels by 50% by 1999. These requirements where later strengthened to include the phase-out of CFCs except in “essential” cases. CFCs have generally been replaced by less damaging hydrochlorofluorocarbons (HCFCs). Title VI of the Clean Air Act implements all of the requirements that the United States has signed onto and regulates ozone depleting substances (ODS).

As a result of the international implementation of the Montreal Protocol and subsequent agreements, the concern over the worsening of the Ozone Hole and ozone depletion has for the most part subsided. Given the long atmospheric life of CFCs, recovery will take decades.

One of the most serious current threats to public health from air pollution comes from the burning of diesel oil. The burning of diesel produces ultra-fine particulate matter, or PM2.5 (particulate matter less than 2.5 microns). This diesel particulate matter is small enough that it can penetrate deep into the lungs and even cross over into the blood stream. Long-term exposure to diesel emissions is linked to both lung and bladder cancer. Children are particularly vulnerable to the impacts of diesel pollution because their lungs are still developing and they breathe, on average, 50 percent more air per pound of body weight than do adults.

Modeling by the Oregon Department of Environmental Quality (DEQ) showed that diesel particulates are a significant problem in the Portland Metro Area. On average, diesel particulates would need to be reduced by 86% in order to meet the benchmarks, which are set based on “acceptable risk” of 1 excess cancer in a million. And that’s using Oregon’s benchmark. Both Washington and California have standards that are at least 33 times lower.

Based on data from EPA, diesel particulate matter is responsible for approximately 460 premature deaths a year in Oregon. That’s more than those who die from homicide and drunk driving, combined. In total, it costs the State $2 to 4 billion a year in death, medical costs, disease, and lost work days. The Clean Air Task Force in Boston estimates that Oregonians have the sixth highest health risk from diesel soot in the country.

While Oregon has adopted California’s standards for new light- and medium-duty motor vehicles, we have not adopted the more stringent standards for heavy-duty motor vehicles or California’s more stringent standards for a variety of non-road engines, including more stringent standards for construction equipment.

EPA’s current standards for new heavy duty on-road diesel engines and new non-road diesel engines require large reductions in diesel particulate. Through the installation of filters, other control devices and using ultra-low sulfur diesel fuel, diesel particulate can be reduced by 90-99%. However, these standards only apply to new engines, not the engines that have already been manufactured and are in use. EPA is relying upon a presumed turnover rate, the rate at which old diesel engines are retired and new engines pressed into service, of approximately 10% per year.

California’s standards on the other hand, require fleets to meet certain percentages of clean diesel engines by certain dates, forcing the engines to be phased out or retrofitted. Unfortunately for Oregon, we’ve become the dumping ground for these old, dirtier diesel engines. These engines are sold into Oregon, where they can still be used, and newer, cleaner engines replace them in California. And unlike Washington, Oregon has not adopted an aggressive approach to helping business retrofit older engines – Oregon has relied on federal grants while Washington has added state dollars to their program. As a result, Oregon has retrofitted many fewer engines than Washington. This can be seen by Oregon’s actual turnover rate, which is only about 4%. That means that in Oregon it will take even longer to phase out or retrofit the old, dirty diesel engines with engines that would produce 90-99% less diesel particulate.