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Clean Air Act – Non-Attainment Areas

Non-Attainment -Clean Air Act

Congress amended CAA in 1977 to add Part D for “non-attainment” areas. Under these new provisions, states unable to achieve NAAQS must comply with Part D. Part D imposes construction and operating permit requirements on new and modified sources of pollution in these areas. Before issuing permits to create new or modified sources, the EPA must find:

⁃    Comply with Lowest Achievable Emission Rate (LAER) – This is a category-wide determination of whether the new or modified source would meet the most stringent emission limitations contained in a SIP or achieved in general practice (whichever is more stringent).

⁃    Note: The source can demonstrate that an emission limitation is not achievable, but it can never emit above the NSPS level.

⁃    Reasonable Further Progress (RFP) – The source must demonstrate a decrease in total allowable emissions in the region or annual incremental reductions in emissions of applicable air pollutants sufficient to provide for attainment of NAAQS by the specified deadline. A new source can demonstrate RFP by obtaining offsets (decreases in emissions) from existing sources. Basically, the source can employ under-pollution credits from other sources and apply it to the current source to meet overall standards. The offset policy intends to strike a balance between economic and environmental protection interests.

⁃    Note: This provision enables non-attainment areas to continue to develop economically while moving toward NAAQS attainment.

⁃    Compliance Schedule – The new or modified source must provide a schedule for compliance of all sources owned by this source’s owner.

In 1990, Congress created levels of non-attainment for individual pollutants, with different target dates for compliance with NAAQS. States are also required to demonstrate RFP in their SIPs. This amendment also added two more requirements before issuing a permit (in addition to RFP, LAER, compliance of owner):

⁃    Administrator must not have found a SIP was inadequately implemented by the state, and

⁃    An alternative analysis must demonstrate that the benefits of the proposed new source outweigh the environmental costs.

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