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Dr. MICHAEL A. S. GUTH |
I. Environmental Values and Policies
A. Environmental Problems and Progress
In the past 40 years, more people and pollution has been added to the planet than in the previous 10,000 years, posing a threat to the health of the planet.
Twenty years of regulation have not lessened to demand for envir. protection b/c it hasn't delivered. Some say enough hasn't been done and others say that it can be done more efficiently.
April 22, 1970 - first Earth Day was preceded by a decade of envir. awareness.
1969 - Congress approved the National Environmental Policy Act (NEPA). "each person should enjoy a healthful environment . . . the government . . . [will] use all practicable means and measures to create and maintain conditions under which man and nature can exist in productive harmony."
First Generation Environmental Problems
Clean Air Act - 1970
Clean Water Act - 1972
Second Generation Toxic & Hazardous Substances
Toxic Substances Control Act - 1976
RCRA - 1980s
Superfund - CERCLA
Third Generation
outlook on pollution prevention
environmental justice
Global Environment Problems
Children and the Environment
Smoking and health
Proper Scope of Regulation - use of market
See page 9 - List of "Unfinished Business" - Second Generation Thesis
The list is long because we started with the easiest targets to clean up. We are working our way down the list to problems that are less serious or more intractable. On theory says that we concentrated on obvious sources of pollution first and then gathered info that suggests that exposure to certain substances might affect us years later. Address hazards before risks.
Some of the problems on the list now coming into importance are inactive hazardous waste sites and accidental releases (see Community Information Act).
Broder, Beyond Folk Songs and Flowers p.10
Broder suggests that the "conservation ethic" has prevailed in the country. Is this really true or does that phrase mean many things to many different people? Different value perspectives make most people sympathetic to the environmental movement.
B. American Environmentalism: Sources and Values
1. Economic Perspective - the paramount social value for public policy is the maximization of human satisfaction, or utility. Environment should be used in a way that takes maximum advantage of ability to satisfy human wants. Pollution is viewed as inefficiency, where resources could provide a better mix of harms and benefits.
2. Biocentric Perspective - (Aldo Leopold) "a thing is right when it tends to preserve the integrity, stability, and beauty of a biotic community. It is wrong when it tends otherwise." Values aspects of the envir. that have no economic value. Preserve aspects that lack commercial value, but essential to healthy functioning. Pollution is bad even at levels well below the economic "optimum." Sees the scale of man's actions as its most destructive quality, whereas the economic perspective would look for an economic balance.
3. Homocentric Ethic - includes the economic perspective. However, Homocentric ethics do not have to be utilitarian in structure, and some can be protective of the envir. Can also include the ethics of stewardship (religious). But, humans manage for the benefit of other humans, not for the benefit of other species.
4. Environmental Ethics - thought about the human- environment relationship that holds natural entities intrinsically valuable and deserving of moral concern whether they are useful or valuable to meeting our needs. Biocentric or ecocentric.
Biocentric - focuses on living things
Ecocentric - focus on entire ecosystem, living and nonliving
5. Ecology - serves as a unifying thread for many biocentric and ecocentric points of view.
6. Preservationists - emphasize historical continuity. Spiritual renewal and nature. For many, nature is valued first for itself, and then it provides a source of inspiration for humans.
7. Environmental Justice - envir. and poverty, discrimination, and concerns of progressive social agenda. Ex. Envir. Racism. Envir risks are not evenly distributed across racial and ethnic groups and are concentrated in minority communities. This theory predominates (according to Rivkin). Also, penalties are usually lower for pollution in minority areas than for white areas. (see Supp p. 8-9).
At first, the Env Movement and Civil Rights Movement were against each other b/c env movement was seen as elitist.
Now the most significant variables in pollution are: 1) race,
2) household income, and 3) Black or Hispanic community (See Supp p. 6-7).
Proposed Environmental Justice Act - proposed by Al Gore and John Lewis. Would require EPA ADministrator to identify 100 counties with greatest exposure totoxic chemicals. Designated Env. High Impact Areas (EHIA). Moratorium on siting or permitting new toxic chemical facilities in those areas where signmificant adverse impact on human health. A stripped down version was approved by Senate in 1993. Env Justice provisions would create an Office of Env Justice in EPA. (See Supp p. 9-10).
Some argue that poorer communities are willing to trade the env risks for the jobs. However, some have termed this environmental blackmail (Bullard), when a community is forced to accept env and health risks for jobs. See Dumping in Dixie: Race, Class and Environmental Quality (1990). Although initially accepting the risks, most persons after the fact thought that the risks were not worth the benefits. However, constitutional challenges including equal protection, procedural or substantive due process, and takings arguments have met with little success.
See also Lazrus, Pursuing Env Justice: The Distributional Effects of Env Protection, 87 Nw. U. L. Rev. 101 (1993)
Policy Initiatives:
1. Develop a better understanding of the causes and scope of the problem w/ additional empirical evidence. Lazarus argues need higher level of statistical confidence.
2. Litigate as Civil Rights issues.
3. Rethink the substance of env l;aw to take better account of distributional concerns.
4. Reform the structure of env policy-making to promote minority involvement and interest. Review hiring practices to increase ethnic and cultural diversity.
5. Reclaim common ground of env. and civil rights. Leverage their expertise to the benefit of both.
See problem set p. 28 on ANWR
ANWR is a public policy issue.
Who has the burden of proof to change the status quo? Usually placed on the opponent of an activity.
BP Oil
1. reduce dependence on foreign oil
2. profitability
3. create jobs
4. low risk of env harm
Gov't of Alaska
1. jobs and economic development
2. revenue
3. productive land use
Inupiat Indians
1. right to services and goods
2. improved quality of life
3. self-determination for use of land
National Audobon Society
1. depletes reserves - irreversibility
2. conservation should be tried first
3. development of alternate energy sources
4. pure preservation perspective
5. impact on env is higher than projected; cost/benefit is skewed.
Gwich'in
1. self-determination
2. survival
3. preservation of culture
4. short-term economic solutions
5. interest of future generations
Other considerations:
Is the risk manageable?
What about punitive damages?
Note: ANWR remains closed - move from homocentric perspective
C. Economics and the Environment
Baxter - asserting that there are pollution problems says that one or more resources is not being used to maximize human satisfactions.
Baumol and Oates, Economics, Environmental Policy and the Quality of Life
While the free enterprise system provides many goods and services it has not done a good job of providing clear air or water. Outstanding efficiency at providing consumer goods, mediocre performance in providing social benefits.
No ideal allocation of resources can be known, but Pigou says that b/c of features inherent in its structure, a free enterprise economy will respond inadequately to the wishes of the general public in its supply of social amenities.
1. The Competitve Price System as an Invisible Hand
More efficiency = more profits. Producers serve from their own self-interests, not out of a sense of morality or commitment to public service.
Price provides 3 functions in the economy:
1. match the output of goods and servies to consumer desires
2. apportion the limited supply of commodities
3. prevent waste
Sends suppliers of scarce goods to where they are needed most (b/c the price will rise). But see price controls and rationing.
Although the price systems has inherent incentives that guide resources to the production of goods and services that people want to buy, there are good reasons to expect that this mechanism won't work as well w/ social amenities.
2. Shortcomings of Price System in Supplying Social Amenities
No private enterprise will provide public goods b/c there is no way to market the good. Also the problem of externalities which spillover to people outside the immediate transaction. Externalities are not considered in calculating a firm's receipts and costs. B/c businesses that cause externalities pay no part of them in their costs, the market does an imperfect job of protecting the environment. A zero price is an invitation to the user to waste the free resources.
Characteristics of Common Property:
1. Everyone has a right to use a particular environmental resource - no right to stop its use by others. This leads to overconsumption.
2. External costs are generated - lower productivity produces an incentive to produce and pollute.
Collective Goods - available to those who have not contributed to their production. Ex. national defense, police, lighthouse.
Externality - harm and benefit: results from poorly defined prop rights in env resources.
According to Coase, externalities only exist in the presence of transaction costs. (cost of negotiations between parties). If people are able to bargain w/out transaction costs, then efficiency will be achieved.
Implications of these Facts:
1. Free-riders - someone else produces the benefit and you get to take advasntage of it even thoughyou haven't contributed.
Solution: Charge for the pollution via marketable permits or sell land.
Have 2 polluters merge to get optimal allocation of resources.
2. Hold-outs - each member of the group has to agree to accept pmt to transfer a right which can only be transferred by unanimous consent. Last person demands a premium or bonus.
Hardin, The Tradegy of the Commons
Results when each individual tries to maximize his use of the commons. This causes the commons to be used up.
3 Ways to Minimize the Effect on the Commons:
1. Cooperation - group agreement
2. Free Market Reign - buy and sell. But this raises the problem that the rich will have the commons and the poor will get nothing. Also, hard to value resources.
3. Increase knowledge - inform persons of the consequences of using the commons.
The Prisoners Dilemma - p.47
People are motivated to prevent losses of what they have now.
See solutions p. 49. Various levels of cooperation
D. Ecological Perspectives
Ecosystems are changing processes that tend toward homeostasis, self-regulating and self-maintaining which can return to equilibrium after being disturbed. However there remains the idea of "carrying capacity" - the point at which the system cannot absorb any more disruption.
An ecological rule of thumb is that seemingly simple actions will have non-obvious and unitended consequences that may cumulate in a threat to ecosystem stability. Concepts of unintended consequences and scale of action.
Another rule of thumb is that smaller actions have less drasric effects on functioning ecosystems than large ones.
Stevens, New Eye on Nature: The Real Constant Is Eternal Turmoil
Stevens claims that nature is not in balance but is in a constant state of disturbance and fluctuation.
E. Environmental Policy: Some Introductory Themes
1. Moral Outrage v. Cool Analysis
- moral outrage - concerns about env policy on moral or ethical commitments
Seen in: NEPA's "healthy env." language
statutes that put aside land for enjoyment by all citizens
reluctance to treat env concerns as fungible w/ purely individual preferences
- Cool analysis - welfare economics and cost/benefit analysis. Treat env problems as conflicts among uses of equal status.
2. Decision-making Under Uncertainty
factual disputes as to the competing interpretations of the nature and magnitude of env effects and the social consequences of alternative policies. Problem of predicting effects and cost controls over time.
Class Notes:
Hypo: What if one factory pollutes 100 tons in a community w/ 10 people.
Each persons bears $10 worth of harm at $100 total cost to society.
What if another factory comes in and emits 100 more tons bringing in 10 more people?
This creates $20 x 20 people and the cost is $400.
The problem has quadrupled.
- Absent controls, the problem costs increase at a faster rate than the quantitative pollution.
?? Ask! Hypo: Suppose we want to hold air quality stable while retaining growth.
Each may pollute 50 tons. Impose on them costs of controlling pollution.
Each factory spends $100 and gets a 50% reduction.
What happens when factories 3 & 4 want to come in?
Everyone must reduce to 25 tons.
Problem: Costs are rising at a higher rate then the reductions they are yielding.
Less reduction w/ same cost. Cost constantly increases.
II. Environmental Law: A Structural Overview
A. Sources of Environmental Law
1. Common Law Roots
Nuisance - protect against invasions of interests in the use and enjoyment of land.
1. Private nuisance - invasion of interest in private use and enjoyment of land. Actions could be brought be private parties.
2. Public nuisance - common law crimes that involved offenses against the state arising from actions that interfered w/ public prop or that endangered the health or prop of large numbers of people. Subj to abatement actions by gov't authorities or by private parties who suffered special injury.
With Industrialization, the concept of BALANCING arose.
Benefits of industry w/ small social harm.
A. Private Nuisance
Non-trespassory invasion which requires showing of significant harm. Interference must be intentional and unreasonable or actionable as an abnormally dangerous activity. Why must harm be significant? We have to put up w/ a few things and we don't want a lot of lawsuits w/ relatively little at stake. Relies heavily on the concept of reasonableness.
Aldred's Case - pig sty held to be a private nuisance b/c of the stench emitted. Air pollution actionable as a private nuisance.
Class Notes: Benton liable for $40 annually. If it costs him more than that to abate, he'll pay the fee. If less, he'll abate. Is this a cost minimizing result? What about the cost of avoidance to Aldred?
Trespass - protects against invasions of interests in the exclusive possession of land.
Madison v. Ducktown Sulphur, Copper & Iron Co.
Facts: Smoke issued from TN Copper Co. injured trees, crops, and homes and Ps sought an injunction of the operation of the plant. Nuisance action.
Holding: The Ct found that the D was using the best available technology and had spent $200K in trying to remedy the problem. No intent. If the injunctive relief were granted, D would have to stop operation of the plant. No place more remote where operations could be transferred.
"if the injury can be adequately compensated at law by a judgment for damages, equity will not interfere."
Injunction not an absolute right, but damages are.
Ct does a balancing test to determine whether to enjoin the plant. The Ct refuses to deprive D of all its rights. It grants damages but no injunction.
CN: Ct looked at the social benefit, the number of people affected, the severity of the effects, jobs created and abatement costs.
What about Susquehanna? "Prop owner is entitled to the reasonable and comfortable enjoyment of his porp and if his rights in this respect are invaded, he is entitled to the protection of the law, let the consequences be what they may."
- transition pt b/c S.L. towards balancing equities.
S.L. is Susquehanna.
Problems w/ Nuisance:
1. After the fact remedies - injury has already occurred
2. causation is a real problem
3. Exposure pathways - Surface water v. Ground water
4. Injuries occur over a period of time - latency period
5. Problem of damages to each individual is small
6. Private nuisance isn't effective when only commons is involved
7. substantial damage - less damage isn't actionable
8. some decline in prop value - if value goes up hard to prove damage to jury
9. evidentiary std - preponderance; more likely than not favors D.
Cts generally balance: 1) the value of competing land uses 2) the suitability of the conduct to the character of the locality and 3) the relative costs of avoiding harm.
See also Boomer p. 87 where the Ct allowed the cement co to pollute if it paid the surrounding residents the full value of their permanent damages. (plant will continue to operate only if the operations have more economic value than the cost of the damage produced.) Issued a conditional injunction until damages paid.
Injunction v. Damages:
1. Allow D to continue polluting
2. Allow D to continue polluting only if Ct ordered damages paid
3. Issue order enjoining pollution
4. Prohibit pollution only if P pays D ct-ordered damages
If efficiency is goal, cost put on cheapest cost-avoider:
1. If polluter can abate more cheaply then victims can avoid, options 2 & 3 should be employed.
Sets up bargaining matrix, leading to efficient result.
2. if Victims are lowest cost avoider, options 1 & 4 should be employed.
3. multiple parties w/ high transaction costs, #2 & 4 would be preferable results.
4. if fewer parties, #1 & 3.
This solution doesn't take other factors into acct like fairness.
B. Public Nuisance
- An unreasonable interference w/ a right common to the general public.
- To determine whether the interference is unreasonable, Cts consider whether the conduct:
1. involves a significant interference w/ the public helath, safety, comfort, or convenience.
2. is illegal
3. is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant.
Missouri v. Illinois
Facts: Chicago dumped its raw sewage into the Chicago River which flowed into Lake Michigan, making the river grossly polluted. Illinois then decided to build a large canal to the MS River. St Louis residents became greatly upset at this and brought a nuisance action agaist Illinois. They argued that the sewage caused an increase in typhoid fever in St Louis.
Holding: The Ct found that the Ps failed to prove causation between the illness and the sewage.
Rationale: The baseline pollution was uncertain b/c Missouri allowed its citizens to dump in the river. The Ps did not show actual cause or that the bacteria could even live that long downstream. Was population of St. Louis growing? Can other things cause typoid fever?
CN: Ct finds unclean hands by Missouri - it wasn't controlling its own cities as well.
What kind of evidence did they need to show?
1. Statistics
2. bacteria strains
3. Missouri's cities dump their sewage here too
Georgia v. Tennessee Copper Co.
Facts: Georgia sought to enjoin the Tn Co. from discharging noxious gases into its state.
Holding: TN Copper Co enjoined from emitting the gases. State has an interest independent of and behind that titles of its citizens, in all the air and earth within its domain.
Rationale: Pollution control measures-making taller stacks-was not effective. Suit not between private parties but w/ a sovereign state, therfore, less room to balance. Causation not a problem.
Note: Ct imposes a specific emission allotment - this is very unusual. Technology-forcing.
See notes p. 102
In Illinois v. City of Milwaukee the S Ct confirmed that federal common law nuisance actions could be brought against gov't entities, but refused to hear such cases under its original jurisdiction.
2. The Public Law of Environmental Protection
A. Environmental Statutes: A Historical Perspective
Federal programs in the 1950s and 60s were based on the notion that env problems were the responsibility of state and local gov'ts. Fed gov't would assist w/ funding and research, but state gov'ts would control pollution. But pollution doesn't recognize state boundaries.
See list p. 107-08.
There is a need for federal action b/c interstate issues create conflicts.
B. The Impact of Public Law on Common Law Actions to Protect the Environment
Milwaukee I - jurisdiction over federal common law nuisance actions given to fed dist cts. Illinois pursued its nuisance action during which time the CWA was enacted. In 1977 the dist ct ordered Milwaukee to control its discharges more stringently than its CWA permit allowed.
In Milwaukee II the S Ct held that the common law nuisance action had been preempted by the CWA b/c of its comprehensive regulatory scheme.
Illinois free to pursue its case for more stringent controls before the Wisconsin state agency that issued CWA permits.
*** This decision effectively ended the use of federal common law nuisance actions for controlling interstate water pollution.
C. Federalism, State Programs, and Federal Preemption of State Env Law
International Paper v. Ouellette
Issue: Whether the federal CWA preempted a state common law nuisance action.
Held: Fed cts can apply state common law to address interstate pollution in light of the savings caluse in § 510 of the CWA which says that states may adopt more stringent limits on discharges than required by federal stds. Must apply the law of the DISCHARGING state rather than the receiving state.
3 Models in Federal/State Approach
1. State regulation w/ merely fed financial support
2. Federal Agencies establish stds (most frequently used model), enforced by state authorities. Prevents states from competing for industry.
3. Strict Federal Regulation
Ex. TSCA and FIFRA
See also Express v. Implied Preemption p. 120
3. International Law and the Environment
Trail Smelter
Facts: Dispute between US and Canada over emissions from a lead and zinc smelter in British Columbia which discharged 300 tons of sulphur per day into US. Dispute submitted to International Joint Comm'n. Comm'n, relying on GA v. TN Copper found for the US.
B. Approaches to Regulation: Assessing the Options
1. Regulation and its Alternatives
4 Institutional Mechanisms may be used to Control Env Risk
1. Market Forces
2. Goverment regulation
3. Common law liability
4. Insurance
4 Factors used to determine which of these mechanisms to use
1. Relative knowledge of private parties and public concerning the benefits of risky activities and the costs of reducing risks.
2. ability to compensate for the harm caused
3. chance that some private parties will escape suit for the harm that they do.
4. relative administrative costs of the tort and of direct regulation.
2. The Regulatory Options
3 Issues Concerning Collective Response:
1. What conduct or activity should be targeted?
Ex. products, pollutants, industrial facilities, gov't agencies, individuals, land uses
2. On what basis should judgments be made about how conduct should be altered?
Ex. Health or Env, Technology or feasibility, Balancing
3. What form of collective action should be employed in an effort to alter that conduct?
Ex. design stds, performance stds, ambient stds, emissions limits, use instructions, marketable allowances, taxes or emissions charges, subsidies, deposit-refund schemes, liability rules and insurance requirements, planning or analysis requirements, information disclosure.
C. Economic Incentive Approaches to Regulation
See table p.175 for pros and cons to regulatory options.
See also pages 177-96 for discussion of regulatory authorities, the regulatory process, and the judicial role in the regulatory process.
II. Clean Air Act
The Scope of Judicial Review
Chevron USA v. National Resources Defense Council
Facts: CAA Amendments required states that have not achieved NAAQS to establish a permit program regulating new or modified major stationary sources of air pollution. Permit may not be issued unless certain stringent conditions are met. EPA allowed states to adopt a plantwide definition of "stationary source" where existing plants could install new polluting devices of they did not increase total emissions from the plant.
Issue: Whether EPA's decision to treat al the pollution devices w/in the same industrial grouping as though they were encased w/in a single bubble is based on a reasonable construction of the term "stationary source."
Held: Congress did not define "stationary source." If Congress has left a gap for an agency to fill, the regulation is valid unless it is arbitrary, capricious, or manifestly contrary to the statute. If the legislative delegation is implicit rather than explicit, the administrator must make a "reasonable interpretation."
The administrator's interpretation is a reasonable accomodation of manifestly competing interests and is entitled to deference. Ct finds that this was a reasonable definition, balancing air pollution control and economic growth.
The Chevron case is highly criticized as allowing agenices to judge the scope of their own authority.
A. The Air Pollution Problem
Conventional Air Pollutants:
1. carbon monoxide
2. sulphur dioxide
3. oxides of nitrogen
4. volatile organic compounds
5. particulates
6. lead
- today all regulated under §§ 108 and 109 of CAA.
Air pollution increases the incidence and severity of diseases, especially when one has been exposed to low levels for a long period of time.
B. The Clean Air Act: Origins and Principles
1. Historical Perspective: Pre-1970 Developments
Common law nuisance actions began w/ industrialization.
Air Pollution Control Act of 1955 - better understanding of the causes and effects of air pollution.
Motor Vehicle Act of 1960 - expanded federal research to address pollution from motor vehicles.
Clean Air Act of 1963 - Sec of HEW to define air quality criteria based on scientific studies. Sec could convenve a conference where interstate pollution dangered health or welfare. Could lead to fed abatement action or cease and desist order. States could establish AAQS for their states, but none did it. Fed gov't did't want role of national enforcer.
Motor Vehicle Air Pollution Control Act of 1965 - 1st direct regulation of air pollution. Establish auto emission stds based on technological feasibility and economic costs.
Air Quality Act of 1967 - comprehensive fed program to define air quality control regions. States required to promulgate AAQS consistent w/ fed criteria documents & subj to fed approval. Also required SIP - show how state will reduce pollution.
Federal intervention had 2 Consequences:
1. by vesting authority in fed gov't, there was over- centralization.
2. Provided weak incentives for state to implement programs.
See William Pederson, Why the CAA Works Badly, 199 U. Pa. L. Rev. 1059 (1981). Changes made in 1990 amendments.
See also re PSDs - Oren, Prevention of Significant Deterioration: Control-Compelling Versus Site-Shifting, 74 Iowa L. Rev. 1 (1988).
2. The CAA: 1970 - 1990
CAA of 1970 - response to universal recognition that air pollution was growing at an enormous rate.
- provisions mandating uniform, national stds based on criteria documents. (NAAQS)
- states issue implementation plans (SIPs), but EPA required to promulgate a plan if a state's plan was inadequate.
- EPA also required to set nationally uniform emission limits for major new stationary sources.
Why such a different approach? Politics, absence of env lobbying groups.
Jim Krier says b/c crisis drove the regulations it is idealist and infeasible. Political ramifications of implementation has been impossible.
1. Technological solutions - predictable, cheap (early on), minimal social disruption
2. Regulation - "command and control." Quick, direct, reasonably predictable. Minimizes destruction of status quo.
What happened w/ the CAA of 1970?
1. No states completed SIPS.
2. large industries could talk states into permissive stds.
3. problem of pollution was growing.
4. auto cos were in disfavor
Under 1970 Act, set up
primary stds - protect public health w/ adequate margin of safety w/out regard to costs. § 109 of Act.
Secondary stds - protect public welfare: flora, fauna, wildlife, visibility (non health-based harms)
1977 Amendments:
1. ensure nonattainment areas come into compliance w/ national stds.
2. establish PSD program - applicable to areas that meet NAAQS.
See overview of Act p. 767-68.
Signer
Overview of CAA
1. confirmed p'ship b/t EPA and states
2. Directed EPA to promulgate National Ambient Air Quality Stds. (NAAQS)
- primary stds: protect human health w/ adequate margin of safety
- secondary std: protect public welfare (env) from any known or anticipated adverse effects
§ 109
- Ambient stds may cover from 1-3 years averaging time.
- Non-attainment area - if violate NAAQS for certain period of time in an area. §§ 171-178
Get one violation for free; 2 & you're in trouble??
Rivkin - fail to meet stds for at least one criteria pollutant
Continue economic growth and make achievement towards ambient stds
3. States are obliged to achieve NAAQS.
SIPs - state implementation plans § 110
4. EPA was directed to New Source Performance Stds (NSPS) which are technology based stds for new sources. § 111
Why did they give the authority to EPA?
- prevent forum shopping
- states can be more stringent, but at minimum have to adapt to EPA stds.
5. EPA was directed to establish National Emission Stds of Hazardous Air Pollutants (NESHAPS). § 112
- health based stds
- uniform everywhere
- regulates different pollutants than NAAQS
- these are primary stds
- pose a significant hazard to human life
6. Motor Vehicle Tailpipe Standards - §§ 201-234
Signer - 1977 Act
1. Tinkered w/ non-attainment area requirements
A. Offsets - if you are a new or modified source located in a non-attainment area, then you must go to existing industry to get them to reduce their pollution in an increment equal to or greater than the pollution you intent to add. Usually must be greater than the amt that you intend to add.
- look for business going out of business and pay for reduction.
Note: Non-attainment is a pollutant by pollutant inquiry.
B. Reasonable further progress (RFP) - states have to show that they are making reasonble furthur progress every year.
C. Lowest Achievable Emission Rate (LAER) - only in non-attainment areas. Look everywhere in country and find out lowest achievable emission rate and new or modified sources have to meet that std.
D. Ban on new construction or cut-off on transportation funds.
2. Prevention of Significant Deteriration (PSDs) -
§§ 160-169(a)
- attainment areas only
- Only for SO2, NOx, and Particulates
- Estazblishes increments of additional pollutants that could be produced in an area, but can't exceed NAAQS.
- Block of additional pollution that can be added to an attainment area.
- NAAQS is cap; can't exceed it.
- complicating factors: 3 types of increments that vary by size and by area:
a. CLASS I - national parks and wilderness area (very small increments)
b. CLASS II - all other Class I Areas
- moderate increment (50% of NAAQS)
c. CLASS III - Class II areas redesignated by Governor. Increments approach NAAQS
level.
Goal of PSDs is to prevent excessive degredation of NAAQS pollutant levels in Clean Air Areas.
When the increment in an area is consumed, no additional sources of the pertinent pollutant can be constructed in the area.
New Sources and Modified Sources must use BACT (Best Available Control Technology)
BACT - at a minimum must meet NSPS, can be more stringent.
Results of 1970 and 1977 Act:
Ozone down 8%
So2 Down 20%
Particulates down 20%
CO down 30%
Lead down 92%
1990 Amendments
1. Again, non-attainment areas were extended
2. Ozone addressed comprehensively
Moderate ------------------> Extreme
3. Motor Vehicle Tailpipe Stds were reduced 35 to 60%.
A significant reduction b/c already at 90%.
4. Clean Fuel Program
5. Clean Vehicle Program - not mandated, would have been in place in extreme areas.
- a pilot program
- how are we going to mandate people to buy them
6. Hazardous Air Pollutant regulation changed
Technology Based replaced by Health based stds
Combination of them
postponed health based stds
see if technology based stds work
- smaller sources covered
- 189 air pollutants deemed toxic
- accidental releases are to be regulated
7. Acid Rain - §§ 401-413
Phase I - EPA implemented
Phase II - state implemented
8. Operating Permit Program
9. CFC's phased out
10. Enforcement Authorities and sanctions were substantially increased
3. The CAA Today - p. 768
1. establish NAAQS - §§ 108 & 109
2. establish NSPS - § 111
3. control mobile sources - §§ 202-234
4. establish national emission stds - for hazardous air pollutants - § 112
5. SIPs - § 110
6. SIP program for New or Modified Sources - RACT on existing sources
New Sources - LAER §§ 171-178.
7. PSD program
- major new sources - BACT §§ 161-169
**** See problem p. 156 - exam-like question
C. National Ambient Air Quality Stds (NAAQS)
- max permissible concentration of harmful pollutant in the ambient air. Includes that portion of the atmosphere external to buildings to which the public has access.
National stds b/c states won't impose high stds on their own industries.
Establishing NAAQS
§ 109 - EPA sets primary NAAQS at the level "which in the judgment of the Administrator, based on the [ambient air quality] criteria and allowing and adequate margin of safety, are requisite to protect the public health."
Air quality criteria - should accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air." § 108(a)(2).
- scientific data are often lacking and inconsistent
- health effects vary depending on magnitude and duration of exposure
- What is an "adequate margin of safety?"
Is statute overly precautionary? Overly conservative?
- NAAQS are almost always under review as new scientific evidence appears
Lead Industries Ass'n v. EPA - trade ass'n challenged AAQS for lead.
CT held:
1. Administrator may not consider economic and technological feasibilty in setting air quality stds. (technology-forcing)
2. Major consideration in establishing AA stds was to ensure the absence of adverse effects and protecting the most sensitive groups w/in the population.
3. "Adverse effect" is w/in Admin discretion b/c of precautionary nature of statute (adequate margin of safety)
NRDC v. EPA - EPA not to give consideration to costs in promulgating NAAQS.
§ 109 (g) and (h) are new to 1990.
- assess risk to ecosystems
- RACT, BACT, LAER - establish clearing house for stds.
Note: The statute does not allow the EPA to take into acct other statutes, but can look at numbers as they contribute to the problem.
Also, can only look at air.
EPA, AAQS for Sulphur Dioxides p. 778
Issue: Averaging
- the longer the averaging period the less protective the a std will be.
Ex. monthly ave.
Could have 30 days of no emissions, then a spike at the end (all emissions).
A big spike hurts people more b/c high dose of pollutant.
Continuous Source Monitors - must keep monitoring data and submit to regulatory group.
Permits required - violation can cause revocation
*** exam question: material on which std-setting is based. Use material to analyze how Admin came up w/ the numbers.
Note p. 783: effect treatable by medication should not be considered in setting std.
Neither should exercise or other stimuli.
Act designed to protect small, vulnerable population.
But note, Administration not sympathetic to total health based regulation.
D. State Implementation Plans
SIP dictates how the ambient air quality stds are to be achieved. SIPs are established by the states, but EPA is required to review and approve plans to assure they will achieve NAAQSs.
Purpose of SIPs: for citizen to be able to read the plan and understand that if X meets its obligations and timetables, it will have done its share to see to it that env damage from air pollution will be a thing of the past.
CAA requires nationally unform emissions on new and existing sources. States were left some freedom to choose the means of regulation, including economic incentive.
Section 110 - provides procedural and substantive requirements for SIP formulation and approval, including a demonstration of adequate provisions for monitoring, enforcement, staffing, and periodic review and substance.
Act's outline for achieving Air Quality Goals:
1. Inventory emissions and project expected growth to establish the extent of the problem.
2. Choose control strategies for reducing emissions.
New sources w/ permit system.
Mobile sources subject to federal stds.
States had most discretion w/ their approach to existing stationary sources - most adopted a technically feasible and economically affordable approach.
States may also be more flexible, using bubbles. § 110(a)(2)(A).
3. Demonstrate that the measures proposed would be adequate to achieve the NAAQSs. EPA decides if it will achieve the NAAQSs.
Note: an approved SIP is promulgated as a federal rule and becomes enforceable by the public. EPA may promulgate and enforce substitute rules if the states rules are inadequate.
- If attainment has been achieved, state must show that reasonable progress is being made that all criteria pollutants are being maintained.
- State has a great deal of discretion to determine how to achieve reductions. This makes the process very political.
See Pedersen, Why the CAA Works Badly, 129 U. Pa. L. Rev. 1059 (1981).
Is EPA required to review every variance from a SIP or only those that would result in extending the deadline for compliance w/ NAAQSs? See Train v. NRDC requires only federal review where the attainment of NAAQSs is at issue.
Technological feasibility has nothing to do w/ SIPs. Ct in Union Electric v. EPA rejected the argument that the language in 110(a)(2) that primary air quality stds be met "as expeditiously as practicable but . . .in no case later than 3 years" required EPA to determine whether a proposed SIP plan was achievable. EPA must approve a plan which attains stds, even if the plan does not appear feasible.
Variances - states were allowed to grant variances from the plan if it was infeasible as long as national stds were being met. (Does this make one industry pay for the sins if another?)
Enforcement - EPA may seek civil penalties and injunctive relief under § 113(b) or criminal penalties for knowing violations under § 113(c). Citizens suits are authorized by § 304, if gov't fails to take action. § 120 allows civil penalties in the amount saved by non-compliance. Takes away economic incentive.
SIP Problems: SIPs need constant revision and approval by EPA. § 110(a)(2) requires EPA to approve or disapprove an initial SIP w/in 4 months. § 110(k), in 1990 amendments, requires EPA to approve revisions w/in 12 months of submission including sufficient information.
National Permit System
1990 Amendments added new requirements for nonattainment areas. Also established is the first national permit system for all major sources of air pollution.
Permits will be required for all "major" sources and all new sources. The permit system will give indurtries certainty that if the meet the permit requirements, they are w/in the Act. However, permits may be revised after 3 years.
A fee will be charged for a permit based on the size of the emssion which provides an economic incentive for pollution reduction. (They also offset administrative costs). Must generally collect at least $25 per ton of a regulated pollutant, but do not have to count emissions over 4000 tons per year.
SIGNER
Operating Permit Program
1. States must establish operating permit programs that meet EPA-set requirements:
1. Monitoring/reporting requirement for covered sources.
2. Permit Fee System
3. Adequate Personnel, Funding, and Authority
4. Public review process for Proposed Permits
5. Civil/criminal penalties ($10,000 per violation)
2. Potentially all sources are covered but EPA has allowed states to defer regulation of minor sources.
Major sources include:
1. all major sources in other CAA sections
2. NSPS sources
3. Acid Rain Sources
4. PSD Regulated Sources
3. Permit Applications must:
1. indentify and describe all emission points and fugitive dust sources.
2. describe all substantive stds
3. i.d. all pollution controls and compliance monitoring devices.
4. provide information about fuels, operations
5. describe alternate operations scenario
- otherwise would have to get permit amendment which takes up to 18 months.
- so look into future and see what you will be doing.
4. In order to have an approvable program, states must charge permit fees sufficient to cover the costs of the permit program.
5. There is a presumptive $25 TPY fee for each regulated pollutant, except CO, accidental release pollutants, CFC's, Phase I Acid Rain Sources, and pollutants above 4000 TPY.
6. High cost for permit fees but good b/c we want competent people running the ship.
7. Responsible official must make annual compliance certifications and prompt reporting of permit deviations.
E. The Nonattainment Problem
1. Nonattainment: A CAA Report Card
Pretty bad except for airborne lead down by 92% b/c of phase out of lead in gasoline.
2. Nonattainment: The Historical Background
EPA approved SIPs that had no realistic chance of attaining compliance w/ the NAAQSs. Delayed compliance orders based on feasibility (§ 113(a)(4)) became an escape valve. Also posed huge economic and technological difficulties.
1977 extended deadlines and set up an offset program.
3. Use of Offsets and Bubbles to Promote Attainment
Command and Control Regulation - gov't issues specific pollution control commands to regulated firms and then monitors them for compliance. Critics have urged a more flexible approach that provides incentive for technological innovation and reduced compliance costs. More efficient b/c costs of compliance vary from plant to plant. See Hahn & Stavins, Incentive Based Environmental Regulation, 18 Ecology L.Q. 1, 16 (1991).
Hypo: A must reduce pollutant by 1 ton. Cost = $1000.
B can reduce by 1 ton for $500.
If they can trade obligations, they will contract to reach the 1 ton reduction at a cost of $500.
Under command and control, A would reduce at a cost of $1000.
EPA allowed industries to trade permits to pollute for nonattainment areas.
1. Bubble - applies to a single site and allows it to reduce emissions there to add or modify pollution. Doesn't add additional emissions to the area. Firms can find least-cost approaches.
2. Offsetting - applies to 2 or more sources. Under the nonattainment program, new sources are required to offset new emissions by obtaining reductions in emissions elsewhere. Can occur w/in same company or w/ other companies or gov't unit.
- creates an emissions trading market.
****** See problem p. 800 and notes.
4. The 1990 Amendments
Amendments include provisions to improve integrity.
1. offset area - source needing to offset emissions can do so only w/in the same attainment area in which it wishes to locate. It can go outside the area if:
a. the other area is of equal or higher classification as the siting area and
b. emissions from the other area contribute to a violation of the NAAQS in the siting area.
2. permissible offsets - see § 173. Can a new source offset emissions from an existing source that are allowed under an existing SIP but which the existing source is not in fact emitting? Ask Rivkin.
3. Growth allowances - old growth allowances (allowances for new growth under the old Act) cannot be used as a basis for permit approval if the SIP establishing them has been found by the administrator to be "substantially inadequate."
5. Fine-Tuning SIPs
Special-interest Exemption:
1. sec. 118(b) allows a variance for federal facilties.
2. sec. 119 allows variance for nonferous smelters (copper, lead and zinc smelters)
3. sec. 110(a)(3)(C) - assures that other dischargers would not be subject to more stringent requirements as a result of these waivers.
4. New health or educational institutions in clean air areas - exemption under sec. 169(1).
5. Partial and conditional approval -
- conditional approval allowed extended negotiations b/t states unable or unwilling to produce adequate plans.
EPA, Approval and Promulgation of Implementation Plans
Should EPA promulgate a FIP that did not porvide compliance until after the 1987 deadline or opt for a plan requiring immediate, S-T attainment w/ its attendant social dislocation?
The Nonattainment Program and the 1990 Amendments
Overall changes:
1. Refining the Concept of "Reasonable Further Progress"
Sec. 172(B)(3) - defined to mean "annual incremental reductions in emissions," which satisfied the administrator. sec. 171(1). Admin can require annual reductions in specified numerical amts.
2. Adjusting the Areas Classified Nonattainment
For auto pollutants, if a nonattainment area is classified as serious, severe or extreme, and is located in an urban area, then the entire area is generally so classified.
- all sources located in the expanded areas will be subj t new source review.
- more effectively reduce the automobile pollutants if appied area-wide.
3. Regulating smaller Sources - reduced the threshold for ozone producing pollutants from 100 tons to 50 tons fro serious areas, 25 tons for severe areas, and 10 tons for extreme areas. Revisions recognize the significant contributions by small sources.
4. Guidance on RACT - existing sources in nonattainment areas install RACT. EPA must issue Control technique Guidelines.
5. Attainment Dates - see p. 812-814 for ozone, carbon monoxide, and particulates.
Notes (Rivkin):
All nonattainment plans must contain 8 common elements:
1. compliance w/ all common SIP elements.
2. provisions for implementation of all RACM. This is a broad concept that includes measures that aren't technology based.
3. plan must include "reasonable further progress" increments. Defined in sec. 171(1).
4. States must conduct an inventory of actual emissions (still incomplete data as of 1991)
5. I.D. of "growth allowance" - more than what is required so new industry can come in.
6. permits for new or modified stationary sources section 173
7. Other control measures as may be necessary. Ex. economic incentives, marketble permits, auctions of emission rights.
8. Contingency measures that provide for extraordinary circumstances of implementation of nonattainment plan if original plan becomes inoperable.
See p. 818 note 3 - $ spent on env controls, represents reallocation from one industry to another.
F. Interstate Air Pollution
1. The Evolving Federal Response to Interstate Air Pollution
1970 CAA required SIPs to include adequate provisions for intergov'tal cooperation to insure non-interference w/ other state's air quality stds. EPA only required an exchange of information.
Now, sec 110(a)(2)(D) requires states to regulate emissions that will significantly interfere w/ the attainment of NAAQS or PSD requirements in other states. (provision narrowly applied and ineffective).
Section 115 deals w/ international air pollution. EPA can require a state to moidfy its SIP if it interferes w/ another country.
2. Control of Acid Deposition
A. The Acid Deposition Problem
Problem W/ politics between eastern and western states. Power plants to reduce sulphur emissions by emission trading, fuel switching, or other means. Also established a program for training and benefits for displaces workers.
B. Emission Trading and the 1990 Amendments' Acid Rain Control Program
i. The Acid Rain Control Program
Nation-wide cap on emissions, including existing and future sources.
Phase I - in 1995, 111 large existing power plants are given specific emission allowances based on their ave baseline fuel concumption. Baselines were debated.
Phase II - in 2000, 8.9M cap on SO2 emissions nationwide. Can trade allowances based on ability to clean up or bank them.
Pollution allowances are allocated to utilities based on past emissions and fuel consumption. Must use allowances w/in 1 yr.
ii. Trading Allowances: How They Can Work
Excess allowances can be sold to people who need them. Section 404(d)(6).
Must determine the plant's baseline.
- for existing plants = historical ave fuel consumption of the unit. Sec. 402(4)(A).
Bonus allowance is subj to availability. Sec. 404(d)(6).
Trades by private entities does require an EIS. TVA bought the first allowance.
Are the allowances property? No, not under the 5th Amend., EPA can ratchet the program down. No industry groups have challenged this pt.
This provides an economic incentive to develop cheaper ways to control pollution. But the better industry gets, the tighter the control even on those companies that don't have the technology.
G. Mobile Source Controls: A Technology-Forcing Venture
Combines emission stds and regs to control fuel additives.
- 1990 Amendments adopt tighter emission stds that broaden the techbnology-forcing aspect of the Act.
1. History and Background
1965 - Congress enacted Motor Vehicle Air Pollution Control Act authorized Sec of HEW to establish auto emission stds considering costs and technological feasibility.
1970 CAA - manufacturers ordered to reduce emissions by 90% over 5 years. Congress adopted these requirements even though the technology did not exist at that time to achieve those goals.
EPA had limited discretion to grant one year extensions if:
1. essential to public interest or the public health and welfare.
2. Co. had made a good faith effort to comply.
3. Co. had established that effective control technology was not available to meet stds.
4. and a study conducted by Nat'l Academy of Sciences was consistent w/ Co's claim. § 205(b)(5)(D).
See §§ 203(a)(1) and 205.
2. 1990 Amendments and the Future of Technology- Forcing Regulattion
Title II of CAA:
1. Emission stds
2. conditions under which vehicles are to be tested, how to test, enforcement provisions, mfg's responsibilities
3. definitions for alternatives to std gasoline as fuel for mobile sources
4. provisions for using such alternatives
- emission stds and clean fuel programs
Clean Fuel Program - p. 839-40
Certain % of gas sold must be ethanol. Although oil producers said that they couldn't meet the stds, when the regs came out they immediately met the stds.
H. Prevention of Significant Deterioration
§ 160 et seq.
§ 101 - "protect and enhance"
PSD program designed to ensure that air quality does not deteriorate in areas that meet or exceed the NAAQS. Enhance or maintain clean air. Protects visibility and scenic or historic values.
See Oren, Detail and Delegation: A Studt in Statutory Specificity, 15 Colum. J. Envtl. L. 143, 150 (1990).
2 PSD Strategies:
1. a requirement that covered sources obtain a permit after demonstrating that their emissions will not cause air quality to deteriorate beyond specified numerical increments and
2. requirement that new sources install the best available control technology (BACT).
Rivkin says BART for existing sources.
BACT is set by the permitting authority on a case by case bsis for each individual facility. (if NSPS for the facility, BACT must be defined at least as stringently).
In setting BACT, can consider energy, env, and economic impacts as well as other costs.
Oren, Prevention of Significant Deterioration: Control- Compelling Versus Site-Shifting, 74 Iowa L. Rev. 1, 13-26 (1988). p. 846.
- applies to "construction or modification of a 'major emitting facility'" - a stationary source.
- permit needed to build or modify if it increases the facility's overall emissions by more than de minimus amts.
- can "net out" of the permit by lowering emissions at one pt in the plant. (consider plant emissions as a whole) Note: can't net in nonattainment areas.
- applies only in attainment areas, but an area is subj to the program for each criteria pollutant for which it is in attainment, even if it is not in attainment for others.
3 Classifications:
Class I - most restrictive increments; nat'l parks
Class II - rest of country
Classs III - least restrictive - none in US.
- States can redesignate areas (except mandatory Class I areas) through governor and public hearings
Control Compelling - additional level of technology forcing required BACT review
Site Shifting - preventing well-controlled sources from locating in areas considered inappropriate.
In order for new sources to come in and not violate their increments, new technology must be found. Restricts growth.
- For modified sources, a key issue is whether EPA should use the source's actual emissions or potential emissions to determine if the modification is major to trigger new source review (NSR). EPA has proposed adopting an "actual to furure actual" approach which compares the old unit's actual emissions w/ the modified unit's future actual emissions. This will reduce encouragement of plantwide netting. How?
- calculation of increments is based on models + monitoring. § 165(e)(2).
Notes:
-Baseline determined by looking at good engineering practice.
Exemptions from PSD program:
1. § 123 - tall stacks exemption for Kingston Steam Plant
- § 165 - Fed land Mgr in Class I area is obligated to comment on permit if there will be an adverse effect. Prevent Class II areas from coming into Class I areas. § 165(b)(2)(A)(B) & (C).
Signer notes
PSD Program
1. SO2, NOx, and Particulates only
2. Has to be in attainment area
3. if in an attainment area, only have to worry about PSD requirements .
4. 1990 CAA excluded all Hazardous Pollutants from PSD coverage
5. Major New Sources or Major Modifications of existing sources can trigger PSD review and their emissions consume PSD increment.
6. A major source is:
1. One of 28 categories of sources listed in § 169 of CAA w/ a "potential to emit" of 100 TPY or more or a regulated pollutant.
2. any other source of a regulated pollutant w/ the potential to emit 250 TPY or more (catch-all).
7. Major madification involve operational or physical changes at existing sources that result in pollutant increases above significance levels.
8. When triggered, PSD Pre-Construction Review Includes:
1. Demonstration that increment is available
2. Ambient monitoring over one year, and
3. Use of BACT for emissions above significance
9. BACT requires use of technology which represents the max degree of reduction possible for the pertinent category of source, taking into acct energy, env, and economic effects. BACT must be at least as stringent as an applicable NSPS.
10. BACT is set on a case by case basis by the permitting authority.
11. A source can be subj to both nonattainment and PSD requirements depending on the pollutants emitted and location.
Review of New Sources Include:
1. NSPS
2. PSD
3. Nonattainment
4. MACT
Hazardous Air Pollutants
1. Major and Area stationary sources of listed pollutants are covered.
2. Major = any source emitting 10 TPY of a single Toxic Pollutant or 25 TPY of any combination of Toxic pollutants.
3. Area = all non-major sources.
4. There is a 2 step reduction process for major sources:
1. Reductions based on Max Achievable Control Technology (MACT)
2. Reductions based on Residual Risk Stds (health based)
5. MACT = is to be set by EPA for categories of sources. All MACT's are to be set by 2000 (phased in by source category). MACTs are to take into acct costs, energy and env effects.
6. After MACT is set, 8 years later EPA goes back and sees if a health based std is needed.
7. Residual Risk Std is required if EPA determined that a MACT fails to protect human health w/ an ample margin of safety and
8. If cancer risk is greater or equal to 1 in 1 million, then EPA sets residual risk std.
9. Area Source Requirments include:
1. Regulation of 90% of the Area sources responsible for the 30 most toxic pollutants - categorically based
2. Area sources must use either Generally Available Control Technology (GACT) or MACT.
10. New Source and Area Source are to be in compliance w/ MACT, GACT, and Residual Risk Stds upon start up.
I. Air Toxics
- increase risks for cancer, birth defects, etc.
"adequate margin of safety" - problematic b/c under § 112, the std would have to be 0. No certainty below which there would be no risk of effects.
1990 Amendments said "margin of safety" is there but not used for initial emissions limitations. Used for "determining risks" after emitters are required to go to MACT.
Put in 189 pollutants that EPA must regulate w/ a MACT std.
- major sources - 10 tons per year or more
- area sources - small, diverse facilities
ex. dry cleaners, service stations, wood stoves
§ 112 accidental releases of extremely hazardous substances.
III. Clean Water Act
- set effluent limitations which were technology-based.
- set up national permit program
- infusion of federal funds to construct sewage treatment facilites.
A. The Water Pollution Problem
1. Types of Pollutants
- those that deplete oxygen and change water temperature.
- those that add bacteria to water
- suspended solids
2. Sources of Pollution
See Chart p. 869.
a. Municipal sewage - combined sewer and stormwater runoff systems. Combined sewer overflow - untreated sewage that bypasses treatment plants and are discharges into surface waters.
POTWs Publically Owned Treatment Works - escape more stringent limits on direct discharges to surface waters.
b. Industrial facilities - discharges to surface waters or indirectly through atmospheric deposition of industrial air pollutants or discharged into sewers.
c. Nonpoint sources - includes runoff from agricultural activities, urban areas, and construction sites, mines timber cutting and land disposal of waste.
B. Statutory Authorities For Controlling Water Pollution
1. Water Pollution Control: A Historical Perspective
2. Statutory Authorities
"to restore and maintain the chemical, physical, and biological integrity of the Nation's waters"
- technology based discharge limits.
- nationwide permit system on point source dischargers.
- expanded fed role in financing construction of municipal treatment facilities.
See also Ocean Dumping Act - prohibits all dumping of wastes in the ocean except where permit issued by EPA. Permits conditioned on showing that the dumping will not "unreasonably degrade" the env. Amended in 1988 to ban all dumping.
3. Structure of the CWA
see p. 878-79.
Goals:
1. Discharge of pollutants into navigable waters be eliminated by 1985. § 101(a)(1).
2. Fishable/swimmable waters be achieved "wherever attainable" by July 1, 1983. §101(a)(2).
Cost-blind determination.
3. Develop and implement programs for the control of nonpoint sources of pollution. §101(a)(7).
Implementation
§ 301 required nationally uniform, technology-based limits on pt source discharges administered through a national permit program required by § 402.
- stds must be uniform by industrial category.
Existing Dischargers - Best Practicable Control Technology (BPT) by 1977 and Best Available Technology (BAT) by 1983.
New Dischargers - § 306 requires BAT-based requirements.
These stds were not met and were modified:
- for conventional pollutants, BAT requirements reduced to Best Conventional Technology (BCT) by 1984 if the incremental benefit of such upgrading exceeded the costs.
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Dr. MICHAEL A. S. GUTH |