ANSWERS TO FINAL REVIEW EMAIL QUESTIONS
ENVIRONMENTAL LAW FALL 2019
Yes. Each of these technology standards applies to a different type of permit under the federal Clean Air Act. For example, facility operators who need a Prevention of Significant Deterioration (PSD) permit will have to show that their facility meets Best Available Control Technology (BACT) standards. If the operators need a permit for a facility in a non-attainment area, however, they will need a non-attainment New Source Review permit that must meet Lowest Achievable Emission Rate (LAER) standards. Best demonstrated technology (BDT) standards apply to sources meeting New Source Performance Standards for their industrial category.
The main differences between these standards, for our purposes, fall into two points. First, some standards allow much more flexibility to consider the economic costs of the selected technology. BACT can consider costs, but LAER effectively cannot. And second, some standards cover a much broader range of the pollutants that a facility might emit. A facility’s selected LAER need only consider the specific criteria pollutant for which the area does not meet a national ambient air quality standard (NAAQS). By contrast, when selecting BACT for a facility, the agency can consider the technology’s ability to control multiple permits beyond just the criteria pollutants subject to NAAQS.
In the same fashion, EPA or delegated state agencies can set emission limits on a host of non-criteria pollutants when they choose the BDT that applies to new facilities subject to a NSPS.
A tricky question! Here’s the bottom line – “habitat” usually means “critical habitat” under the Endangered Species Act. The statute doesn’t include a separate definition for “habitat”, and functionally “habitat” only has legal effect when it is part of “critical habitat.”
That said, Justice Roberts’ opinion in Weyerhauser specifically looked to a separate understanding of “habitat” before then looking at “critical habitat” – which allowed him to declare that the dusky gopher frog’s critical habitat could not include the areas designated by the U.S. Fish & Wildlife Service because the frogs could not live there without modifying the land. As a result, it could not be “habitat,” and therefore could not be designated “critical habitat.” Justice Roberts’ strictly grammarian interpretation, however, is frankly a bit controversial.
Unfortunately, this answer is still in flux. The awkward mix of regulatory revisions combined with judicial vacaturs and stays has led to a very unclear picture of the RMRR exemption. The situation grew worse last week when, on November 26, EPA proposed a comprehensive set of new revisions to the NSR regulations that would try to prune back vacated or abandoned language from the rule. As a result, there’s no ready bright-line test yet for what constitutes routine maintenance, repair or replacement under the rules. Each instance will turn on highly specific facts, agency interpretations and guidance, and state rules and regulations (in delegated states).
The Clean Air Act requires EPA to review whether its selection of Maximum Achievable Control Technologies (MACT) for a particular industry segment is sufficiently protective of public health within eight (8) years after promulgating the MACT. In particular, EPA will determine whether the risks remaining after implementation of the MACT will result in an additional 1 to 100 cases of cancer per million exposed individuals (depending on the industry sector).
A cost recovery action under CERCLA involves a person who actually incurs costs to respond to a release of hazardous substances – i.e., they actually clean up the spill or take steps to prevent further contamination. A contribution action, by contrast, arises when a person has to pay a judgment or administrative order in an amount larger than their fair share. One involves clean-up, the other simply writes a check. As a result, the same person can have both contribution and cost recovery claims – it depends on the nature of the underlying action, not on the identity of the party.