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CHAPTER-1

Introduction

The principal statute addressing air quality concerns in United States, the Clean Air Act was first enacted in 1955, with major revisions in 1970, 1977, and 1990. The Act requires EPA to set health-based standards for ambient air quality, sets deadlines for the achievement of those standards by state and local governments, and requires EPA to set national emission standards for large or ubiquitous sources of air pollution, including motor vehicles, power plants, and other industrial sources. In addition, the Act mandates emission controls for sources of 188 hazardous air pollutants, requires the prevention of significant deterioration of air quality in areas with clean air, requires a program to restore visibility impaired by regional haze in national parks and wilderness areas, and implements the Montreal Protocol to phase out most ozone-depleting chemicals.

                  The Clean Air Act, like other laws enacted by Congress, was incorporated into the United States Code as Title 42, Chapter 85. The House of Representatives maintains a current version of the U.S. Code, which includes Clean Air Act changes enacted since 1990.

In India The Air (Prevention and Control) Act 1981 was enacted by the Parliament under Article 253 of the Constitution to take appropriate steps to prevent and control air pollution and fulfill the proclamation adopted by the United Nations Conference on the Human Environment held in Stockholm in June 1972. The main functions of Central Pollution Control Board (CPCB) as per the Air Act are to improve the quality of air and to prevent, control or abate air pollution in the country.

                                  My project will be based on descriptive, analytical and comparative approach. The reason being, the researcher is going to compare both the system and various drawbacks of the same. The researcher has adopted the uniform mode of citation throughout the project paper.

CHAPTER-2

EnforcementMechanismofU.S.A

• Section 113 of the Act, which was also strengthened by the 1990 amendments, covers enforcement. The section establishes federal authority to issue agency and court orders requiring compliance and to impose penalties for violations of Act requirements. Section 114 authorizes EPA to require sources to submit reports, monitor emissions, and certify compliance with the Act’s requirements, and authorizes EPA personnel to conduct inspections.
• Like most federal environmental statutes, the Clean Air Act is enforced primarily by states or local governments; they issue most permits, monitor compliance, and conduct the majority of inspections. The federal government functions as a backstop, with authority to review state actions. The agency may act independently or may file its own enforcement action in cases where it concludes that a state’s response was inadequate.
•  The Act also provides for citizen suits both against persons including corporations or government agencies alleged to have violated emissions standards or permit requirements and against EPA in cases where the Administrator has failed to perform an action that is not discretionary under the Act. Citizen groups have often used the latter provision to compel the Administrator to promulgate regulations required by the statute.
• The 1990 Amendments elevated penalties for some knowing violations from misdemeanors to felonies; removed the ability of a source to avoid an enforcement order or civil penalty by ceasing a violation within 60 days of notice; gave authority to EPA to assess administrative penalties; and authorized $10,000 awards to persons supplying information leading to convictions under the Act.

CAA( Clean Air Act) National Enforcement Program

The Clean Air Act (CAA) applies to both stationary sources of air pollution such as factories, processing plants, chemical plants, refineries, and utilities and mobile sources such as vehicles, tractors, lawn mowers, airplanes as well as rules governing formulation and use of fuel. The Clean Air Act Enforcement Programs are divided according to the various Titles of the Clean Air Act. In addition to records and facility inspections for compliance with the statutes and regulations, EPA employs investigative tools to measure emissions at the source through our Fence-line Monitoring Program using a UV-DOS system and through the use of the Remote On-Vehicle Emissions Reporter (ROVER).

Stationary Source Enforcement Program

The CAA requires all areas of the country to meet or strive to comply with the National Ambient Air Quality Standards (NAAQS). One of the key programs designed to achieve compliance with the NAAQS is the New Source Review (NSR) program, a preconstruction review process for new and modified stationary sources. The NSR program has two component parts: the Prevention of Significant Deterioration (PSD) program for attainment or "clean" areas typically requires new or modified sources to install state-of-the-art pollution controls to ensure that the ambient air quality will not degrade. The non-attainment area NSR program is designed to ensure that any new industrial growth in a non-attainment area will comply with stringent emission limitations by requiring the most protective pollution controls and emission offsets, with the goal of improving air quality overall to meet the NAAQS. The NSR program requires companies to obtain a permit for new construction or major modifications that substantially increase a facility's emissions of the NAAQS.

The Air Enforcement Division (AED, Office of Regulatory Enforcement), is responsible for implementing the U.S. EPA's judicial and administrative enforcement activities under the NSR program. The U.S. EPA has broad authority under the Clean Air Act to pursue alleged violators of the NSR permitting requirements. The Act grants EPA expansive and sweeping authority to: request information from individuals and companies, inspect facilities, conduct investigations, and pursue judicial and administrative enforcement actions for injunctive relief and civil penalties. Since 1999, EPA has made enforcement of the New Sorce Review (NSR) requirements a national priority, targeting industries such as wood products, ethanol manufacturers, coal-fired utilities, and petroleum refineries.[1]

MACT Air Toxics Enforcement

Section 112 of the Clean Air Act was amended in 1990 to require EPA to issue emission standards and requirements for 189 toxic air pollutants to curb the emission of cancer causing air toxins. This was a massive undertaking, which has resulted in over 100 new rules for industrial and commercial sources of air pollution, from neighbourhood dry cleaners to petrochemical complexes. These new rules, called NESHAPs or National Emissions Standards for Hazardous Air Pollutants, apply mostly to larger sources, but also some smaller sources of air pollution. The rules require existing and new sources to install controls that are the Maximum Achievable Control Technology or MACT and install certain monitors, keep records and report to the agency that is overseeing them.

For the first several years that these new rules were in place, EPA mostly conducted outreach and compliance assistance to the regulated community, but now has begun a standard enforcement process of identifying priority violators and taking enforcement actions, including seeking penalties. Since 1997, EPA has brought enforcement actions for Section 112 air toxics violations in over 500 administrative penalty cases and nearly 100 judicial enforcement cases, some involving penalties and environmental projects over $1 million each.

State Implementation Plans/ State and Local Coordination

Under the Clean Air Act, the primary responsibility for planning for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) rests with the state and local agencies. Accordingly, state and local air quality agencies are also designated as the primary permitting and enforcement authorities for most Clean Air Act requirements. EPA has oversight authority over state and local actions to ensure national consistency and adherence to Clean Air Act legal principles.[2]

Mobile Source Enforcement Programs

EPA enforces the motor vehicle fuels provisions of Title II of the Clean Air Act and regulations promulgated there under at 40 C.F.R. Parts 79 and 80. These provisions include certain requirements and prohibitions regarding the quality of motor vehicle fuels and are designed to reduce harmful emissions from all motor vehicles including passenger cars, light trucks and heavy duty trucks. These provisions apply to both gasoline and diesel fuel; and they apply to all parties in the distribution system, including refiners, importers, distributors, carriers, oxygenate blenders, retailers and wholesale-purchaser-consumers fleet operators with their own dispensing pumps. EPA enforces these provisions through environmental audits and inspections including sampling and testing of fuels, and through various recordkeeping and reporting requirements. EPA may seek civil penalties or injunctive relief remediation of the violations and projects to offset illegal emissions for violations of the Act or regulations, and may bring actions in federal district court or through administrative actions. Our enforcement activities include cases against all parties in the fuel distribution system described above.

Nonroad (Off-road) Enforcement Program

EPA enforces the motor vehicle nonroad provisions of Title II of the Clean Air Act and regulations promulgated thereunder at 40 C.F.R. Parts 89, 90, 91, 92, and 94. These provisions include certain requirements and prohibitions regarding the importation and manufacturing of only certified and properly labeled nonroad engines which are designed to reduce harmful air emissions. These provisions may apply to either gasoline or diesel engines used in construction and agricultural equipment, lawn and garden equipment, marine engines, and locomotives. We enforce these provisions through the U. S. Customs Service, EPA, and EPA Contractor environmental audits and inspections, and through various recordkeeping and reporting requirements such as the EPA Nonroad Declaration Form. EPA, in coordination with Customs, may seek civil or administrative penalties, forfeiture/remission of bonds, or injunctive relief for violations of the Act or regulations, and may bring actions in federal district court or through administrative actions.

Urban Bus Retrofit Enforcement

The Air Enforcement Division enforces the Urban Bus Retrofit provisions of Title II, Section 219(d) of the Clean Air Act, and regulations promulgated thereunder at 40 C.F.R. Part 85. Failure to comply with the requirements subjects the operator to fines of up to $27,500 per urban bus. Air Enforcement Division develops cases by conducting audits of urban bus operators, and by investigating tips.

• Prior to the passage of the CAA, the U.S. Environmental Protection Agency (EPA) enforced Clean Air Act provisions largely through civil or criminal judicial enforcement actions, and through a very limited administrative penalty program for highly specific cases. These enforcement mechanisms limited the range of violations that could be pursued because of the extensive resources required. The 1990 Amendments, however, expanded EPA’s enforcement options by authorizing EPA to issue administrative penalty orders of up to $200,000 and to issue field citations assessing administrative penalties of up to $5,000 per violation for less serious infractions. Field Citations are notices of violation that assess penalties for minor violations in a manner similar to that of traffic tickets. Field citations may be issued either on-site following an inspection or from an EPA office, and which assess penalties of up to $5,000 for each violation.
• These new enforcement tools will enhance the Agency’s ability to enforce the Act by enabling EPA officials to address violations that previously may have been viewed as too minor to warrant attention. Where appropriate, EPA will now be able to respond quickly to a violation by issuing an administrative penalty order or a field citation, rather than commencing a civil judicial enforcement action for penalties. While civil and criminal judicial enforcement actions will remain an important component of EPA’s enforcement program, EPA’s new administrative authorities enable it to effectively pursue a broader range of violations without the expenditure of resources associated with judicial action.
• An important part of the Agency’s recently-granted authority for the administrative assessment of civil penalties is the authority to issue field citations, found in Section 113(d)(3) of the Act [42 U.S.C. 7413]. This section authorizes EPA to implement a Federal program through regulations which establish appropriate minor violations and informal hearing procedures. Field citations assessing penalties of up to $5,000 per day of violation may be issued by EPA officers or employees.
• Section 113(d)(3) of the Act also provides that any person to whom a field citation is issued may elect either to pay the proposed penalty or to request a hearing in accordance with procedures specified in the regulations. It further provides that the penalty assessed in the field citation becomes final if a request for a hearing is not made within the time specified in the implementing regulations. Any person against whom a civil penalty is assessed under the field citation program also has the option to seek review in the appropriate district court.

Recent case laws

CF Industries, Inc. Settlement - Washington, DC - August 06, 2010

The U.S. Environmental Protection Agency (EPA) and the U.S. Justice Department  announced that CF Industries, Inc. has agreed to spend approximately $12 million to implement a treatment system for hazardous wastes at its Plant City, Fla. phosphoric acid and ammoniated fertilizer manufacturing facility near Tampa. The settlement resolves CF Industries’ Resource Conservation and Recovery Act (RCRA) violations and requires the company to pay a civil penalty of more than $700,000 and provide $163.5 million in financial assurances to guarantee appropriate closure and long-term care of the closed facility. This is the first case concluded under EPA’s National Enforcement Initiative for Mining and Mineral Processing.[3]

 HoosierEnergy Rural Electric Cooperative, Inc. Settlement - Washington, DC - July 23, 2010

 The U.S. Environmental Protection Agency (EPA), the Justice Department, and the state of Indiana announced that Hoosier Energy Rural Electric Cooperative, Inc. has agreed to pay a civil penalty of $950,000 and install and upgrade pollution control technology at its two coal-fired power plants in Indiana to resolve violations of the Clean Air Act. The settlement, filed in federal court today, will reduce harmful air pollution by more than 24,500 tons per year and requires Hoosier to spend $5 million on environmental projects.[4]

CHAPTER-3

Enforcement Mechanism in India

Constitution and National Policies

India took a bold step to include environmental protection rights and duties in its Constitution. The

Constitution of India specifies that the State shall endeavour to protect and improve the environment and to safeguard the natural resources of the country. According to the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment and to have compassion for living creatures. By raising environmental concerns to the constitutional level, India has provided its citizens with a powerful policy tool to protect the environment.

Role of the Judiciary

Over the last twenty years, the Supreme Court of India and some High Courts of the states have led the way in the enforcement of environmental laws through citizen-led public interest litigation (PIL) that has its legal basis in the constitutional right to a healthy environment. Through this judicial activism, the courts have issued orders with specific implementation requirements that not only remedy the case at hand, but also set new policies and practices with widespread implications for the regulated community as well as regulatory agencies. In addition, all environment-related penalties (fines and imprisonment) are provided under criminal law and must be imposed by lower courts. Citizens must provide the Central Government with 60 days advance notice of their intention to file a complaint to give the government an opportunity to take remedial action. Under the public interest litigation process, the Supreme Court of India and the High Courts have relaxed standing and other procedural requirements so that citizens may file suits by a simple letter without the use of a lawyer, and appear before “green

benches” (specially assigned judges).[5]

• In democratic countries like India, the policy guidelines for every initiative and activity are provided by the political leadership through the mechanism of cabinet resolutions and the policy statements of the individual ministers. These political policy guidelines emanate from the broad national consensus on an issue, which is hammered out after long deliberations and discussions at different forums. Subsequently, these policy guidelines result into the formulation of the feasible administrative actions.

However, any complete system of politico-administrative dimensions for       prevention and control of air pollution includes four elements:

(i) Formulation of appropriate policies,

(ii) Administration of the scheme of control,

(iii) Enforcement of control and research, and

(iv) Gathering of information necessary to any progressing system of control.

• The responsibility for environmental protection and abatement of pollution is not the duty of one department alone, nor is it the task of government alone. It is an obligation of all political leaders, government departments and agencies, authorities and NGOs, and community groups because environmental issues are cross sec-oral. CPCB, SPCBs and pollution Control Committees (PCCs), Ministry of Environment and Forests (MoEF) and State Department of Environment, Ministry of Road Transport and Highways (MoRTH) and State Transport Department, Municipal Corporation, Development Authority, Police Department, etc. are all concerned with activities related to environmental protection (directly or indirectly).

• Functions of Central Pollution Control Board (CPCB)

The following are the functions of CPCB:

(i) Advise the Central Government on any other matter concerning prevention and control of pollution and improvement of the quality of air;

(ii) Plan and cause to be executed a nationwide program for the prevention, control or abatement of air pollution;

(iii) Coordinate the activities of states and resolve disputes among them;

(iv) Provide technical assistance and guidance to State Pollution Control Boards (SPCBs), carry out and sponsor investigations and research relating to problems of air pollution and prevention, control or abatement of air pollution;

(v) Plan and organize the training of persons engaged or to be engaged in programs for the prevention, control or abatement of air pollution;

(vi) Collect, compile and publish technical and statistical data relating to air pollution and measures devised for the effective prevention, control or abatement of air pollution and prepare manuals, codes or guides relating to prevention control or abatement of air pollution;

(vii) Lay down the standards for the quality of air

(viii) Collect and disseminate information and matters relating to air pollution; and

(ix) Perform such other functions as may be prescribed.

• Functions of State Pollution Control Boards

(i) To plan a comprehensive program for the prevention, control or abatement of air pollution and to secure the execution thereof;

(ii) To advise the State government on any matter concerning prevention, control or abatement of air pollution;

(iii) To collaborate with CPCB in organizing training of persons, engaged or to be engaged in a program relating to prevention control or abatement of air pollution and to organize mass-education programs relating thereto;

(iv) To inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such direction to such persons as may considered necessary to take steps for the prevention, control or abatement of air pollution;

(v) To inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein, and take steps for prevention control or abatement of air pollution in such areas;

(vi) To lay down, in consultation with CPCB and having regard to the standards for the quality of air it lays down, standards for emissions of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or an aircraft;

(vii) To advise the State government with respect to the suitability of any premises from time to time, entrusted to it by CPCB or the State government to do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of the Act.

In India most of the environmental land mark decision were given by J. Kuldeep Singh, famously known as Green Judge. M.C.Mehta is known an an  environmentalist , public spirited lawyer who brought those suits to Supreme Court.

Taj Mahal -Land Mark Case

       Orders for providing Lead free petrol in the country and for the use of natural gas and other mode of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic convertors; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.

CHAPTER-4

Comparison between both the system and loop holes

The use or threat of criminal sanction is central to Environmental regulation and Pollution control in India despite the fact that criminal prosecution ‘may be too rigid an approach to be used for all but the most serious offences.’ It is clear that Pollution is a wrong against the society at large and hence criminal liability must follow on the wrongdoers. However, in practice in India due to various reasons including the strict requirements of proof which are required under the criminal law of proof beyond reasonable doubt, successful prosecution of the offenders under pollution laws has been minimal. The stringent penal provisions under legislations like the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 in India did not serve the purpose they were intended for and had little effect on the polluters[6]. There is a need to shift focus from the considering the violation of pollution laws and norms from being only criminal wrong to also be seen as a civil wrong entailing liability to restitute and remedy the damage caused to the environment. In the process an increased emphasis in environment jurisprudence from criminal liability to environment civil liability in line with the ‘polluter pays principle’ would be welcome in India today. Such an approach can also help focus on achieving prevention rather than punishment, will require less stringent procedural safeguards, and can help bolster regulatory efficiency.

U.S. EPA RECOMMENDATIONS ON ENVIRONMENTAL COMPLIANCE AND

ENFORCEMENT IN INDIA

1: Advocate for more resources, and streamline current practices tomaximize currently available resources.

2: Develop policies and implementing guidance to assist the zonal offices and SPCBs in implementing compliance and enforcement programs. As these policies and guidance are developed, effective organization will necessitate that a system for cataloguing and distributing the guidance in a timely manner also be developed.

3: Establish the authority to use self-monitoring, self-recordkeeping, and self-reporting as direct evidence of a violation in the courts (and administratively should such a process be established); develop and distribute the necessary policies and implementing guidance; and provide training to SPCBs.

4: Establish opacity standards and test methods for emissions from stacks; develop implementing policies and guidance; and establish the necessary training infrastructure

5: Develop national guidance on minimum inspector training requirements; develop and fund a compliance and enforcement training program to implement the requirements; and ensure that all SPCBs are aware of the program and the schedule of courses.

6: Develop a policy and provide implementing guidance that requires regulated industries to provide bank guarantees for negotiated compliance schedules incorporated in directives issued by the Boards.

7: Utilize current statutory provisions to establish civil administrative authority; establish the infrastructure for managing administrative cases; develop the necessary enforcement response and penalty policies; and provide training for the states.

8: Develop educational materials and compliance assistance tools for the regulated community, especially small businesses, and distribute the materials to all regulated sources.

9: Develop measures of success for the compliance and enforcement Program utilizing a variety of parameters, and communicate these measures and the rationale for why they are needed to SPCBs, the regulated community, and the public.

10: Develop a uniform computerized system for collecting, maintaining and utilizing compliance and enforcement data at the national as well as the state level; develop the necessary implementing policies and guidance; and ensure that the SPCBs are aware of them.

11: Establish a support organization to facilitate communication among SPCBs on important environmental compliance and enforcement issues, and between CPCB and the Boards.

                                 No system is completely bad or good, both the systems have loop holes and some stringent regulation procedures. Therefore it is very difficult to say which system of enforcement procedure is effective in terms of applications. We cannot put the US system in Indian environment and way of living. In both the systems the Citizen suit or the PIL is a welcome step for environmental protection from the side of a citizen, where a citizen has the vital role to play. As EPA in US has various strict rules to comply with likewise in Indian law the concept of PIL is very broad and under article 32 and 226 any concerned person can file public interest litigation for the interest of the mass. For filing a suit even a mere letter to a Judge is enough. Therefore both the system has ample of scope to protect our environment, but it depends up on we people that how we are abided by those rules and governance.

        The US system of environmental protection mechanism per se cannot be applied to Indian law and vice versa. But certainly one thing can be done like, if the central pollution control board can come up with a Co-operative approach with the industries like EPA does, then the step is all welcome.

CHAPTER-5

Conclusion

Today, the resilience of both human society and the natural environment are being tested on a global level by pressures of population and economic growth, which have in turn led to increasing greenhouse gas emissions, declining biodiversity, and other threats to such vital natural resources as fresh water, soil, forests, and wetlands.

The field citation program is only one enforcement tool in EPA’s broad range of options to maximize compliance with the Clean Air Act. Field citations are intended specifically to address minor compliance problems that have previously been neglected due to limited Agency resources. The opportunity for streamlined, expedited enforcement to address minor violations should save Agency resources, reduce court backlogs, and send a clear enforcement message to violators that even minor violations will not be overlooked. Moreover, this attention to smaller details is expected to result in improved overall compliance rates, as sources will take greater care to ensure that all regulatory requirements are being met. In addition, by stressing the importance of even lesser requirements, sources may be able to detect and correct problems earlier on, thereby reducing the chances that small problems will develop into significant violations.

Goals of environmental policy –

The system may defer but the goal should be one in every society.

The goals of pollution control itself may be formulated in many different ways –

a)    To protect human health;

b)   To ensure viability of wildlife;

c)    To preserve historic monuments;

d)   To stop further degradation of environment.

 Indian environmental policy is of now mainly stresses on – to stop further degradation of environment. To achieve this Government has opted for traditional “command and Control Method”. Under this system, we have the state agencies as watchdogs to keep an eye on the existing industries and all the new industries before they commence their operation, they should obtain prior permission. Permission is granted by the agencies to carry on the industrial activities subject to specified certain terms and conditions.

By co-operation and concern towards the environment can lead us a green and pollution free life, let us start a new beginning by holding our hands togather. Because environment does not belong to one but to all.

BIBLIOGRAPHY

STATUTES REFERRED

Clean Air Act-1970

Air (prevention and control of pollution) Act-1981

ARTICLES REFERRED

1-Environmental Compliance and Enforcement in India: Rapid Assessment, report prepared by OECD Programme of Environmental Co-operation with Asia.

2- A Report prepared by ministry of environment & forests ,Government of India.(NEPA)

3- CSR report by Congress,Clean Air Act: A Summary of the Act and Its Major Requirements, March 2009.

WEBSITES

http://www.epa.gov/oecaerth/assistance/bystatute/caa/index.html

http://www.epa.gov/oecaerth/civil/index.html

http://www.elitepro.in/

http://dspace.nitle.org/bitstream/handle/10090/10584/Environmental-Citizen-Suit-Provisions.pdf?sequence=6

www.inece.org/4thvol1/futrell.pdf