Hypothetical Clean Air Act

Background:  In 2005, Exxon Mobil donates $500 million to a consortium of California universities for the establishment of the Silicon Valley Biomass Energy Generator Plant a part research, part commercial venture to develop improved methods to convert all forms of locally generated biomass (biological waste, wood pulp/chips, unwanted non-ebooks etc) into electric energy in order to make Silicon Valley energy independent and to produce revenue through the selling of electricity to both California and out-of-state consumers.  Upon the completion of construction in 2010, the plant is the single largest energy producer in California.

The operation is an economic success!  Due to novel technologies invented by a local technology start-up the plant produces more than enough electricity for all residents and companies in Silicon Valley, with the surplus being sold to local utility companies throughout the western U.S. 

However, in 2012 one problem became apparent while the plants emissions of most criteria pollutants were within the levels required by the San Francisco Bay Areas attainment plans – which are part of Californias Clean Air Acts State Implementation Plan (see https://ww2.arb.ca.gov/our-work/programs/california-state-implementation-plans (Links to an external site.)), there was significant particulate matter (PM 10) emissions from the plant that, in 2012, had resulted in the Bay Area region no longer being in attainment for the NAAQS for PM 10. 

To solve that problem, the University consortium again turned to its innovators and established a contest for the best technology to deal with the PM 10 pollution from the plant.  The winning entry a method to trap 99% of particulate matter in specially treated organic scrubbers was installed in summer 2015 and, by the end of the year, the region had retained attainment levels for PM 10.

An added benefit of this technology was that the used organic scrubbers turned out to be, after a treatment process to remove several toxic heavy metals that were also collected from the power plant emissions, a high-energy food that was ideal for feeding livestock.  The Consortium entered into a contract with the Cattle Farms along the San Joaquin River in central California to sell the scrubbers for cattle food.  As a way to test out their new self-driving solar power trucks (the MyTruck) the Silicon Valley giant tech company, Pineapple, made an agreement with the Consortium to transport, and unload, the used organic scrubbers to a newly installed treatment plant, on the grounds of a new Cattle Feed Lot in the San Joaquin Valley, where heavy metals were removed and from which waste is discharged into the San Joaquin River.                     

The process seemed to be going very well until 2017, when a few problems developed:

It became apparent that the San Joaquin River ecosystem, and many fish species, was becoming negatively impacted by increased heavy metal (arsenic, mercury, etc.) and nitrogen levels.  These changes seemed to be correlated, respectively, to the establishment of the new scrubber treatment plant and by the increase in cattle density (and individual cattle size due to the energy organic scrubber food) at the local Cattle Farms and the Feedlot.
Starting in 2017, there were weekly fish advisories in the San Joaquin River due to heavy metal contamination.  In addition, quantitative nitrogen levels in the river had also surpassed the California numerical Water Quality Standards for the first time in 20 years (a downstream Native American tribe addressed the problem by strengthening their own tribal land WQS for nitrogen to 50% of the California standard).
Residents of the San Joaquin Valley started to complain of the smell of cattle and cattle manure from the local Cattle Farms and Feedlot and, at the same time, several families in one neighborhood, downwind from the farm, started becoming ill from heavy metal vapor poisoning.

Address the following questions/topics:

(50%). Identify the primary Clean Air Act (CAA) statutory section(s) and or regulatory approach(es) that would most likely be used to regulate the Silicon Valley Biomass Energy Generator Plant prior to 2012. Would the Clean Air Acts regulation of the plant change in 2012 and, if so, how?

(50%). Discuss any other statutory or common law claims that you think may exist in the above scenario – be sure to cite to critical statutes or precedents (past cases) that you would use if you were trying to make those claims.

MUST CITE STATUTES IN BLUE BOOK FORM

MUST USE THE TWO SOURCES BELOW and TWO ADDITIONAL SCHOLARLY SOURCES

Robert V. Percival et al., Environmental Regulation: Law, Science, and Policy (Alphen aan den Rijn: Wolters Kluwer Law & Business, 2017), 8th Edition

James Salzman and Barton H. Thompson, Environmental Law and Policy 4th Edition

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