State Protection of Air Quality Related Values Act Exposed

The State Protection of Air Quality Related Values Act was adopted by ALEC's Natural Resources Task Force at the Annual Meeting on July 28, 2000, and approved by the full ALEC Board of Directors in August, 2000. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Summary

In 1999, Federal Land Managers, through their Air Quality Related Values Work Group (FLAG), issued a Draft Phase I report that changes dramatically the Prevention of Significant Deterioration (PSD) program established by Congress. Through their report, Federal Land Managers (FLMs) attempt to rewrite the Clean Air Act to give themselves authority at the expense of the states.

This model legislation establishes the procedures that states will follow in exercising the authority Congress gave them to evaluate claims by the FLMs on air quality related values.

Model Legislation

Section 1. {Title, enacting clause, etc.}

State Protection of Air Quality Related Values

Section 2. {Legislative findings and declarations}

Section 3. {Definitions.}

(A) “Air quality-related value” means a feature or property of a class I federal area that was fundamental to the purpose for which the area was established or designated and which may be affected by air pollution, including, but not limited to, flora, fauna, geologic features, and cultural resources;

(B) “Class I” means an area of land that has been designated as “Class I” under section 162 of the federal Clean Air Act.

(C) “Scientifically reliable evidence” means evidence shown by a methodology that is generally accepted within the relevant scientific community, that has been subjected to peer review and publication; is capable of and has been tested; is subject to established control standards of performance and has a known or potential rate of error that is within a range acceptable to the relevant scientific community.

Section 4. {Demonstrations of Adverse Impact on Air Quality Related Values.}

(A) The {insert appropriate state agency here} is authorized to represent the state as provided in this section when assessing demonstrations submitted by a federal land manager under section 165(d)(2)(C)(ii) of the federal Clean Air Act.

(1) When a federal land manager sends a written demonstration to the {insert appropriate state agency here} under the authority of section 165(d)(2)(C)(ii) of the federal Clean Air Act alleging that emissions of a criteria pollutant from a proposed major new source or a major modification of a source will have an adverse impact on any specifically defined air quality-related value of a class I area, the {insert appropriate state agency here} shall concur in the demonstration only if the demonstration establishes the following by a preponderance of the evidence:

(a) For an area that was designated as class I under section 162 of the federal Clean Air Act, that emissions of a specific criteria pollutant from the proposed new source or modification will result in a significant, actual adverse impact on an air quality-related value that was fundamental to the purpose for which the area was established and preserved by Congress;

(b) For an area that was redesignated as class I under section 164 of the federal Clean Air Act, that emissions of a criteria pollutant from the proposed new source or modification will result in a significant, actual adverse impact on an air quality-related value that was considered an important attribute in the decision to redesignate the area as class I; or

(c) That an adverse effect of any specific pollutant on any specific air quality-related value is established by evidence that is scientifically reliable and which demonstrates the alleged adverse effect will result from concentrations that are likely to occur as a result of emissions into the ambient air.

(2) To be considered by the {insert appropriate state agency here}, a demonstration under subsection (1) of this section must be received by the {insert appropriate state agency here} no later than 30 days after the mailing of written notice to the federal land manager of any permit application for a proposed major source or major modification.

(3) The {insert appropriate state agency here} shall determine within 30 days of receipt of a demonstration made under subsection (1) of this section whether the demonstration meets the requirements of that subsection. The {insert appropriate state agency here} shall notify the federal land manager and the owner/operator of the proposed new major stationary source or modification within ten days, in writing, of that determination. If the {insert appropriate state agency here} determines that the proposed new major source or major modification will have a significant adverse impact on an air quality-related value, a permit shall not be issued unless the owner/operator of the proposed new major source or modification demonstrates to the {insert appropriate state agency here} that it has mitigated that adverse impact by obtaining enforceable and permanent emissions reductions to offset the adverse impact. The owner/operator has the burden of establishing the sufficiency of the mitigation by reliable scientific evidence. The {appropriate state agency here}’s determination is an appealable agency action subject to appeal by the owner/operator of the proposed new major source or major modification under the provisions of {insert appropriate state legal authority for appeals}.

Section 5. {Severability clause.}

Section 6. {Repealer clause.}

Section 7. {Effective date.}

Adopted by the Natural Resources Task Force at the Annual Meeting, July 28, 2000.

Approved by full the ALEC Board of Directors August, 2000.