Robert RosenthalAssistant Attorney General

New York Attorney General’s Office

ALI-ABAClean Air: Law, Policy, and Practice

“Federal and State Enforcement”

Identify Policy: Identify Policy: Compliance with NAAQS and Compliance with NAAQS and Protecting Public Health & WelfareProtecting Public Health & Welfare

PMPM2.52.5: Many regions are in non-attainment.: Many regions are in non-attainment. Associated w/chronic & acute mortality, and other public Associated w/chronic & acute mortality, and other public

health effects.health effects. Sulfate and Nitrate PM contribute to acidic deposition.Sulfate and Nitrate PM contribute to acidic deposition. Origin: PMOrigin: PM2.52.5 is formed in atmosphere from gaseous is formed in atmosphere from gaseous

emissions, such as SOemissions, such as SO22. . Ozone: Many regions are in non-attainment.Ozone: Many regions are in non-attainment.

Associated w/acute mortality and other public health Associated w/acute mortality and other public health effects.effects.

Nitrate PM contributes to eutrophication.Nitrate PM contributes to eutrophication. Origin: NOOrigin: NOXX + VOCs in presence of sunlight. + VOCs in presence of sunlight.

Non-Attainment AreasNon-Attainment Areas(as of August 16, 2007)(as of August 16, 2007)

Standard Number of

Counties

Population

PM2.5 208 88,394,361

8-Hour

Ozone

368 144,772,573

Comparison of Particle SizeComparison of Particle Size

Expert Elicitation, dated Sept. 21, 2006 (p. viii)Expert Elicitation, dated Sept. 21, 2006 (p. viii)(http://www.epa.gov/ttn/ecas/ria.html)(http://www.epa.gov/ttn/ecas/ria.html)

““Ten of twelve experts believed that the likelihood of a causal Ten of twelve experts believed that the likelihood of a causal relationship [between PMrelationship [between PM2.52.5 exposure and premature death] was exposure and premature death] was

90 percent or higher. The remaining two experts gave causal 90 percent or higher. The remaining two experts gave causal probabilities of 35 and 70 percent.”probabilities of 35 and 70 percent.”

Primary Component of PMPrimary Component of PM2.52.5: Sulfates: Sulfates

““Sulfate plays a major role in the composition Sulfate plays a major role in the composition of fine particulate across the country, but of fine particulate across the country, but typically makes up typically makes up over half the fine particles over half the fine particles found in the Eastern United Statesfound in the Eastern United States.” .”

EPA, EPA, Control of Air Pollution from New Motor Vehicles: Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements; Final RuleDiesel Fuel Sulfur Control Requirements; Final Rule, 66 Fed. , 66 Fed. Reg., 5001, 5018/2 (Jan. 18, 2001)Reg., 5001, 5018/2 (Jan. 18, 2001)

Emissions of SOEmissions of SO22 also cause acidic deposition. also cause acidic deposition.

Big Moose Lake, located in the North Central Adirondacks, Big Moose Lake, located in the North Central Adirondacks, is chronically acidic.is chronically acidic.

Wet sulfate deposition for the eastern U.S. for 2003. Data are from the NADP network.

Whiteface Mtn.

Power Plants are thePower Plants are theMain Source of SOMain Source of SO2 2 in U.S.in U.S.

(Percentage of SO(Percentage of SO22 Emissions by Sector) Emissions by Sector)

Power plants 67%18%

7%5% 3%

Power Plants

IndustrialAll other

Non-Road VehicleMetal Processing

http://www.epa.gov/air/urbanair/so2/what1.htmlhttp://www.epa.gov/air/urbanair/so2/what1.html

Power Plants Represent Even Greater Percentage of Power Plants Represent Even Greater Percentage of Overall SOOverall SO22 Emissions in Upwind States Emissions in Upwind States

For Ohio, PA, IN, WV, VA (in 1999)For Ohio, PA, IN, WV, VA (in 1999) 4.95 million tons SO4.95 million tons SO22 all sources all sources

4.14 million tons SO4.14 million tons SO22 from power plant from power plant

=> 84% of SO=> 84% of SO22 Emissions Emissions from power plantsfrom power plants

FromFrom:: html://epa.gov/air/data/geosel.html; html://epa.gov/air/data/geosel.html; html://camddataandmaps.epa.gov/gdm/index.cfmhtml://camddataandmaps.epa.gov/gdm/index.cfm

Comparison of Major Source SOComparison of Major Source SO22 Emissions Emissions (1999)(1999)

NY, NJ, Connecticut NY, NJ, Connecticut

367,000 tons SO367,000 tons SO22

(31.5 million people)(31.5 million people)

Ohio: Ohio: 1,310,000 tons SO1,310,000 tons SO22

Pennsylvania: Pennsylvania: 965,000 tons SO965,000 tons SO22

Indiana: Indiana: 942,000 tons SO942,000 tons SO22

West Va.: West Va.: 695,000 tons SO695,000 tons SO22

Virginia: Virginia: 226,000 tons SO226,000 tons SO22

________________________________________________________

TOTAL: TOTAL: 4,137,000 tons SO4,137,000 tons SO22

(39.6 million people)(39.6 million people)

Enforcement/Litigation OptionsEnforcement/Litigation Options

1.1. New Source Review: In-state to extent State has New Source Review: In-state to extent State has delegated program & out-of-state under CAA delegated program & out-of-state under CAA Citizens Suit provision (§ 304).Citizens Suit provision (§ 304).

2. 2. EPA Oversight/Challenges in D.C. Circuit.EPA Oversight/Challenges in D.C. Circuit.

3.3. Other Clean Air Act Provisions: Section 126.Other Clean Air Act Provisions: Section 126.

4.4. Public Nuisance: State common law actions expressly Public Nuisance: State common law actions expressly notnot preempted under CAA § 304(e). preempted under CAA § 304(e).

1. Nature of NSR 1. Nature of NSR LawsuitsLawsuits

Statute: CAA § 111(a)(4)Statute: CAA § 111(a)(4)

““Modification” means “any physical change in . . . a Modification” means “any physical change in . . . a stationary source which increases the amount of any air stationary source which increases the amount of any air pollutant emitted by such source . . .” pollutant emitted by such source . . .”

Regulation: 40 C.F.R. § 52.21 (1980, 1992)Regulation: 40 C.F.R. § 52.21 (1980, 1992)

“ “Major Modification” = Major Modification” = Non-routine physical change Non-routine physical change

+ significant net emissions increase.+ significant net emissions increase.

NSR Legal LandscapeNSR Legal Landscape United States v. Duke EnergyUnited States v. Duke Energy, 127 S. Ct. 1423 (2007), 127 S. Ct. 1423 (2007): Upheld : Upheld

EPA’s plain language interpretation of regulatory NSR emissions EPA’s plain language interpretation of regulatory NSR emissions test; test based on change in actual annual emissions. test; test based on change in actual annual emissions.

New York v. EPANew York v. EPA, 443 F.3d 880 (D.C. Cir. 2006), 443 F.3d 880 (D.C. Cir. 2006): Under plain : Under plain language of statute, routine maintenance exemption is limited to language of statute, routine maintenance exemption is limited to “de minimis circumstances” + exemption can only apply to the “de minimis circumstances” + exemption can only apply to the kinds of physical changes that do not increase emissions.kinds of physical changes that do not increase emissions.

WEPCo. v. ReillyWEPCo. v. Reilly, 893 F.2d 901 (7th Cir. 1990), 893 F.2d 901 (7th Cir. 1990): Affirmed EPA’s : Affirmed EPA’s 4-factor routine maintenance test (based on project’s cost, 4-factor routine maintenance test (based on project’s cost, frequency, nature & extent, and purpose) + application.frequency, nature & extent, and purpose) + application.

Nat’l Parks Conserv. Ass’n v. TVANat’l Parks Conserv. Ass’n v. TVA, 480 F.3d 410 (6th Cir 2007), 480 F.3d 410 (6th Cir 2007): : Citizen Suit Claim concerning alleged modification that was Citizen Suit Claim concerning alleged modification that was completed more than 5-years prior to suit is not barred by 5-year completed more than 5-years prior to suit is not barred by 5-year statute of limitations; Company has continuing obligation to statute of limitations; Company has continuing obligation to i) apply BACT to a modified facility and ii) obtain appropriate i) apply BACT to a modified facility and ii) obtain appropriate construction permit for modified facility.construction permit for modified facility.

Summary of NSR Settlements w/New Summary of NSR Settlements w/New York as Plaintiff or Co-PlaintiffYork as Plaintiff or Co-Plaintiff

United States v. AEPUnited States v. AEP, (S.D. Ohio, filed Oct. 9, 2007)., (S.D. Ohio, filed Oct. 9, 2007).

United States v. Ohio Edison Co.United States v. Ohio Edison Co., (S.D. Ohio, July 11, 2005)., (S.D. Ohio, July 11, 2005).

United States v. Virginia Elec. & Power Corp.United States v. Virginia Elec. & Power Corp., (E.D. Va., Oct. , (E.D. Va., Oct. 10, 2003).10, 2003).

New York v. Niagara Mohawk Power Corp.New York v. Niagara Mohawk Power Corp., (W.D.N.Y., June , (W.D.N.Y., June 6, 2005).6, 2005).

New York v. NYSEGNew York v. NYSEG, (W.D.N.Y., Mar. 29, 2005)., (W.D.N.Y., Mar. 29, 2005).

New York v. Mirant New York, Inc.New York v. Mirant New York, Inc., (S.D.N.Y., Oct. 9, 2003)., (S.D.N.Y., Oct. 9, 2003).

2. 2. EPA Oversight/Challenges in D.C. CircuitEPA Oversight/Challenges in D.C. Circuit

Clean Air ActClean Air Act § 307§ 307: Petitions for review to D.C. : Petitions for review to D.C. Circuit.Circuit. New York v. EPA (“New York I”)New York v. EPA (“New York I”), 413 F.3d 3 (D.C. Cir. , 413 F.3d 3 (D.C. Cir.

2005): NSR emissions test must be based on increases in 2005): NSR emissions test must be based on increases in “actual,” not potential, emissions.“actual,” not potential, emissions.

NewNew York v. EPA (“New York II”)York v. EPA (“New York II”), 443 F.3d 880 (D.C. Cir. , 443 F.3d 880 (D.C. Cir. Mar. 17, 2006): Routine maintenance exemption can only Mar. 17, 2006): Routine maintenance exemption can only apply to the kinds of physical changes that do not increase apply to the kinds of physical changes that do not increase actual emissions.actual emissions.

Public CommentsPublic Comments: In August, 13 states notified EPA : In August, 13 states notified EPA that its proposed change to the NSR emissions test is that its proposed change to the NSR emissions test is unlawful.unlawful.

3. 3. Other Clean Air Act ProvisionsOther Clean Air Act Provisions

Section 126: Allows a downwind state to Section 126: Allows a downwind state to petition EPA for a finding that upwind petition EPA for a finding that upwind sources are significantly contributing to its sources are significantly contributing to its non-attainment with NAAQS.non-attainment with NAAQS. Got EPA moving on NOGot EPA moving on NOXX SIP Call. SIP Call. EPA denied North Carolina’s Section 126 EPA denied North Carolina’s Section 126

Petition, in part, on grounds that CAIR Petition, in part, on grounds that CAIR provides the remedy called for under provides the remedy called for under Section 126.Section 126.

CAA § 126CAA § 12642 U.S.C. §742642 U.S.C. §7426

(b) Any State “may petition the Administrator for a finding (b) Any State “may petition the Administrator for a finding that any major source or group of stationary sources emits or that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of would emit any air pollutant in violation of the prohibition of section [110(a)(2)(D)(i)].”section [110(a)(2)(D)(i)].”

(c) The Administrator may permit the continued operation of a (c) The Administrator may permit the continued operation of a source subject to such finding only if it complies with source subject to such finding only if it complies with emissions limitations and compliance schedules as may be emissions limitations and compliance schedules as may be provided by the Administrator to bring about compliance with provided by the Administrator to bring about compliance with the requirements of section 110(a)(2)(D)(i) “the requirements of section 110(a)(2)(D)(i) “as expeditiously as expeditiously as practicable, but in no case later than three years after the as practicable, but in no case later than three years after the date of such findingdate of such finding.”.”

4. 4. States’ Police Powers: Power to Abate Public NuisancesStates’ Police Powers: Power to Abate Public Nuisances

Fertilizing Co. v. Hyde ParkFertilizing Co. v. Hyde Park, 97 U.S. 659, 667 (1878): “Th[e , 97 U.S. 659, 667 (1878): “Th[e police] power belonged to the States when the Federal police] power belonged to the States when the Federal Constitution was adopted. . . . Constitution was adopted. . . . To regulate and abate nuisances To regulate and abate nuisances is one of its ordinary functions.”is one of its ordinary functions.”

International Paper Co., v. OuelletteInternational Paper Co., v. Ouellette, 479 U.S. 481 (1987): , 479 U.S. 481 (1987): When a court considers a state common law claim concerning When a court considers a state common law claim concerning interstate water pollution that is subject to the CWA, the law of interstate water pollution that is subject to the CWA, the law of the affected state is preempted and the court must apply the law the affected state is preempted and the court must apply the law of the source state.of the source state.

Copart Indus. v Consolidated Edison Co.Copart Indus. v Consolidated Edison Co.,, 41 N.Y.2d 564, 567 41 N.Y.2d 564, 567 (1977): Public nuisance “consists of conduct or omissions which (1977): Public nuisance “consists of conduct or omissions which offend, interfere with or cause damage to the public in the offend, interfere with or cause damage to the public in the exercise of rights common to all … in a manner such as to offend exercise of rights common to all … in a manner such as to offend public morals, interfere with use by the public or a public place public morals, interfere with use by the public or a public place or endanger or injure the property, health, safety or comfort of a or endanger or injure the property, health, safety or comfort of a considerable number of personsconsiderable number of persons.”.”

North Carolina v. TVANorth Carolina v. TVA, 439 F. Supp. 2d 486 , 439 F. Supp. 2d 486 (W.D.N.C. 2006), on interlocutory appeal (4(W.D.N.C. 2006), on interlocutory appeal (4 thth Cir.). Cir.). Claims against out-of-state power plants related to Claims against out-of-state power plants related to

emissions of SOemissions of SO22, NO, NOXX, and mercury., and mercury.

State of New York v. Monoco Oil Co., Inc.State of New York v. Monoco Oil Co., Inc., 713 , 713 N.Y.S.2d 440 (Sup. Ct. Monroe Co. 2000).N.Y.S.2d 440 (Sup. Ct. Monroe Co. 2000). Odors associated with asphalt plant constitute a public Odors associated with asphalt plant constitute a public

nuisance.nuisance.

State of Connecticut v.State of Connecticut v. AEP, Inc.AEP, Inc., , 406 F. Supp.2d. 265 406 F. Supp.2d. 265 (S.D.N.Y. 2005), (S.D.N.Y. 2005), on appealon appeal to (2d Cir.). to (2d Cir.). Claims against out-of-state power plants to reduce COClaims against out-of-state power plants to reduce CO22

emissions contributing to global warming.emissions contributing to global warming.

Recent Examples of Public Nuisance Cases Recent Examples of Public Nuisance Cases