In assessing compliance for companies that emit pollution, lawyers should look at the many sources of law governing polluters to ensure the company is indeed complying with the laws of all of the jurisdictions federal, state, air district and local. Despite the truism that compliance with state, air district and local laws does not constitute compliance with federal law, more than a handful of litigated cases attest to the frequency with which companies attempt to shield themselves from federal enforcement by relying on compliance with nonfederal laws. Knowing where to look for the sources of applicable federal law is basic to the practice of air pollution law and should prevent potential compliance pitfalls.
The Federal Clean Air Act
As it is with many statutory schemes, the obvious primary sources to consult are the act itself at 42 U.S.C. §7401 et seq. and the Code of Federal Regulations. Much of the needed detail is contained in the CFR. Examples include 40 CFR Parts 51-52 (regulations governing major new sources and significant modifications, known as “new source review” regulations), Part 60 (new source performance standards) and Part 63 (maximum achievable control standards for hazardous air pollutants). Some of these regulations not only specify what polluters must do to comply with the act, but also how the federal government and states should interact to control air pollution. The CFR also contain procedures and standards that permitting agencies should follow in issuing permits.
State Implementation Plans
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