Restatement (2d) of Torts

§ 821A.Types of Nuisance

In this Restatement “nuisance” is used to denote either

(a)a public nuisance as defined in § 821B, or

(b)a private nuisance as defined in § 821D. * * *

§ 821D.Private Nuisance

A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.

§ 821E.Who Can Recover For Private Nuisance

For a private nuisance there is liability only to those who have property rights and privileges in respect to the use and enjoyment of the land affected, including

(a)possessors of the land,

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(b)owners of easements and profits in the land, and

(c)ownersof nonpossessory estates in the land that are detrimentally affected by interferences with its use and enjoyment.

§ 821F.Significant Harm

There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

§ 822.General Rule

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a)intentional and unreasonable, or

(b)unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

§ 824.Type of Conduct Essential to Liability

The conduct necessary to make the actor liable for either a public or a private nuisance may consist of

(a)an act; or

(b)a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.

§ 825.Intentional Invasion—What Constitutes

An invasion of another’s interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor

(a)acts for the purpose of causing it, or

(b)knows that it is resulting or is substantially certain to result from his conduct.

§ 826.Unreasonableness of Intentional Invasion

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if

(a)the gravity of the harm outweighs the utility of the actor’s conduct, or

(b)the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

§ 827.Gravity of Harm—Factors Involved

In determining the gravity of the harm from an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:

(a)The extent of the harm involved;

(b)the character of the harm involved;

(c)the social value that the law attaches to the type of use or enjoyment invaded;

(d)the suitability of the particular use or enjoyment invaded to the character of the locality; and

(e)the burden on the person harmed of avoiding the harm.

§ 828.Utility of Conduct—Factors Involved

In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:

(a)the social value that the law attaches to the primary purpose of the conduct;

(b)the suitability of the conduct to the character of the locality; and

(c)the impracticability of preventing or avoiding the invasion.

§ 829.Gravity vs. Utility—Conduct Malicious or Indecent

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor’s conduct is

(a)for the sole purpose of causing harm to the other; or

(b)contrary to common standards of decency.

§ 829A.Gravity vs. Utility—Severe Harm

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.

§ 830.Gravity vs. Utility—Invasion Avoidable

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm is significant and it would be practicable for the actor to avoid the harm in whole or in part without undue hardship.

§ 831.Gravity vs. Utility—Conduct Unsuited To Locality

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm is significant, and

(a)the particular use or enjoyment interfered with is well suited to the character of the locality; and

(b)the actor’s conduct is unsuited to the character of that locality.

§ 840D.Coming To the Nuisance

The fact that the plaintiff has acquired or improved his land after a nuisance interfering with it has come into existence is not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable.

CAA § 111, 42 U.S.C. § 7411. Standards of performance for new stationary sources

(a)Definitions

For purposes of this section:

(1)The term “standard of performance” means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

(2)The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.

(3)The term “stationary source” means any building, structure, facility, or installation which emits or may emit any air pollutant. Nothing in subchapter II of this chapter relating to nonroad engines shall be construed to apply to stationary internal combustion engines.

(4)The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. * * *

(b)List of categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by United States; particular systems; revised standards

(1)(A)The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

(B)Within one year after the inclusion of a category of stationary sources in a list under subparagraph (A), the Administrator shall publish proposed regulations, establishing Federal standards of performance for new sources within such category. * * *

(2)The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards. * * *

§ 60.42Da.Standards for particulate matter (PM).

(a)Except as provided in paragraph (f) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8 [which requires a performance test within 180 days of startup], whichever date comes first, an owner or operator of an affected facility shall not cause to be discharged into the atmosphere from any affected facility for which construction, reconstruction, or modification commenced before March 1, 2005, any gases that contain PM in excess of 13 ng/J (0.03 lb/MMBtu) heat input. * * *

(c)Except as provided in paragraphs (d) and (f) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after February 28, 2005, but before May 4, 2011, shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of either:

(1)18 ng/J (0.14 lb/MWh) gross energy output; or

(2)6.4 ng/J (0.015 lb/MMBtu) heat input derived from the combustion of solid, liquid, or gaseous fuel. * * *

(e)Except as provided in paragraph (f) of this section [which is not relevant to this problem], the owner or operator of an affected facility that commenced construction, reconstruction, or modification commenced after May 3, 2011, shall meet the requirements specified in paragraphs (e)(1) and (2) of this section.

(1)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, the owner or operator shall not cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of the applicable emissions limit specified in paragraphs (e)(1)(i) or (ii) of this section.

(i)For an affected facility which commenced construction or reconstruction:

(A)11 ng/J (0.090 lb/MWh) gross energy output; or

(B)12 ng/J (0.097 lb/MWh) net energy output.

(ii)For an affected facility which commenced modification, the emission limits specified in paragraphs (c) or (d) of this section.

(2)During startup periods and shutdown periods, owners or operators of facilities subject to subpart UUUUU of part 63 of this chapter shall meet the work practice standards specified in Table 3 to subpart UUUUU of part 63 and use the relevant definitions in § 63.10042, and owners or operators of facilities subject to subpart DDDDD of part 63 shall meet the work practice standards specified in Table 3 to subpart DDDDD of part 63 and use the relevant definition used in § 63.7575. * * *

§ 60.43Da.Standards for sulfur dioxide (SO2).

(a)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility which combusts solid fuel or solid-derived fuel and for which construction, reconstruction, or modification commenced before or on February 28, 2005, except as provided under paragraphs (c), (d), (f) or (h) of this section, any gases that contain SO2 in excess of:

(1)520 ng/J (1.20 lb/MMBtu) heat input and 10 percent of the potential combustion concentration (90 percent reduction);

(2)30 percent of the potential combustion concentration (70 percent reduction), when emissions are less than 260 ng/J (0.60 lb/MMBtu) heat input;

(3)180 ng/J (1.4 lb/MWh) gross energy output; or

(4)65 ng/J (0.15 lb/MMBtu) heat input. * * *

(b)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility which combusts liquid or gaseous fuels (except for liquid or gaseous fuels derived from solid fuels and as provided under paragraphs (e) or (h) of this section) and for which construction, reconstruction, or modification commenced before or on February 28, 2005, any gases that contain SO2 in excess of:

(1)340 ng/J (0.80 lb/MMBtu) heat input and 10 percent of the potential combustion concentration (90 percent reduction); or

(2)100 percent of the potential combustion concentration (zero percent reduction) when emissions are less than 86 ng/J (0.20 lb/MMBtu) heat input.

(c)[Reserved by 77 FR 9450].

(d)Sulfur dioxide emissions are limited to 520 ng/J (1.20 lb/MMBtu) heat input from any affected facility which:

(1)Combusts 100 percent anthracite;

(2)Is classified as a resource recovery unit; or

(3)Is located in a noncontinental area and combusts solid fuel or solid-derived fuel.

(e)Sulfur dioxide emissions are limited to 340 ng/J (0.80 lb/MMBtu) heat input from any affected facility which is located in a noncontinental area and combusts liquid or gaseous fuels (excluding solid-derived fuels).

(f)The SO2 standards under this section do not apply to an owner or operator of an affected facility that is operated under an SO2 commercial demonstration permit issued by the Administrator in accordance with the provisions of § 60.47Da.

(g)Compliance with the emission limitation and percent reduction requirements under this section are both determined on a 30-day 238rolling average basis except as provided under paragraph (c) of this section. * * *

(i)Except as provided in paragraphs (j) and (k) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility for which construction, reconstruction, or modification commenced after February 28, 2005, but before May 4, 2011, shall cause to be discharged into the atmosphere from that affected facility, any gases that contain SO2 in excess of the applicable emissions limit specified in paragraphs (i)(1) through (3) of this section.

(1)For an affected facility which commenced construction, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output; or

(ii)5 percent of the potential combustion concentration (95 percent reduction).

(2)For an affected facility which commenced reconstruction, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output;

(ii)65 ng/J (0.15 lb/MMBtu) heat input; or

(iii)5 percent of the potential combustion concentration (95 percent reduction).

(3)For an affected facility which commenced modification, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output;

(ii)65 ng/J (0.15 lb/MMBtu) heat input; or

(iii)10 percent of the potential combustion concentration (90 percent reduction).

(j)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification commenced after February 28, 2005, and that burns 75 percent or more (by heat input) coal refuse on a 12-month rolling average basis, shall caused to be discharged into the atmosphere from that affected facility any gases that contain SO2 in excess of the applicable emission limitation specified in paragraphs (j)(1) through (3) of this section.

(1)For an affected facility for which construction commenced after February 28, 2005, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis; or

(ii)6 percent of the potential combustion concentration (94 percent reduction) on a 30-day rolling average basis.

(2)For an affected facility for which reconstruction commenced after February 28, 2005, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;

(ii)65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or

(iii)6 percent of the potential combustion concentration (94 percent reduction) on a 30-day rolling average basis.

(3)For an affected facility for which modification commenced after February 28, 2005, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;

(ii)65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or

(iii)10 percent of the potential combustion concentration (90 percent reduction) on a 30-day rolling average basis.

(k)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility located in a noncontinental area for which construction, reconstruction, or modification commenced after February 28, 2005, but before May 4, 2011, shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO2 in excess of the applicable emissions limit specified in paragraphs (k)(1) and (2) of this section.

(1)For an affected facility that burns solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain SO2 in excess of 520 ng/J (1.2 lb/MMBtu) heat input.

(2)For an affected facility that burns other than solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain SO2 in excess of 230 ng/J (0.54 lb/MMBtu) heat input.

(l)Except as provided in paragraphs (j) and (m) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no 240owner or operator of an affected facility for which construction, reconstruction, or modification commenced after May 3, 2011, shall cause to be discharged into the atmosphere from that affected facility, any gases that contain SO2 in excess of the applicable emissions limit specified in paragraphs (l)(1) and (2) of this section.

(1)For an affected facility which commenced construction or reconstruction, any gases that contain SO2 in excess of either:

(i)130 ng/J (1.0 lb/MWh) gross energy output; or

(ii)140 ng/J (1.2 lb/MWh) net energy output; or

(iii)3 percent of the potential combustion concentration (97 percent reduction).

(2)For an affected facility which commenced modification, any gases that contain SO2 in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output; or

(ii)10 percent of the potential combustion concentration (90 percent reduction).

(m)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility located in a noncontinental area for which construction, reconstruction, or modification commenced after May 3, 2011, shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO2 in excess of the applicable emissions limit specified in paragraphs (m)(1) and (2) of this section.

(1)For an affected facility that burns solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain SO2 in excess of 520 ng/J (1.2 lb/MMBtu) heat input.

(2)For an affected facility that burns other than solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain SO2 in excess of 230 ng/J (0.54 lb/MMBtu) heat input.

§ 60.44Da.Standards for nitrogen oxides (NOx).

* * *

(d)Except as provided in paragraph (h) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after July 9, 1997, but before March 1, 2005, shall cause to be discharged into the atmosphere from that 241affected facility any gases that contain NOx (expressed as NO2) in excess of the applicable emissions limit specified in paragraphs (d)(1) and (2) of this section as determined on a 30-boiler operating day rolling average basis.

(1)For an affected facility which commenced construction, any gases that contain NOx in excess of 200 ng/J (1.6 lb/MWh) gross energy output.

(2)For an affected facility which commenced reconstruction, any gases that contain NOx in excess of 65 ng/J (0.15 lb/MMBtu) heat input.

(e)Except as provided in paragraphs (f) and (h) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after February 28, 2005 but before May 4, 2011, shall cause to be discharged into the atmosphere from that affected facility any gases that contain NOx (expressed as NO2) in excess of the applicable emissions limit specified in paragraphs (e)(1) through (3) of this section as determined on a 30-boiler operating day rolling average basis.

(1)For an affected facility which commenced construction, any gases that contain NOx in excess of 130 ng/J (1.0 lb/MWh) gross energy output.

(2)For an affected facility which commenced reconstruction, any gases that contain NOx in excess of either:

(i)130 ng/J (1.0 lb/MWh) gross energy output; or

(ii)47 ng/J (0.11 lb/MMBtu) heat input.

(3)For an affected facility which commenced modification, any gases that contain NOx in excess of either:

(i)180 ng/J (1.4 lb/MWh) gross energy output; or

(ii)65 ng/J (0.15 lb/MMBtu) heat input.

(f)On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, the owner or operator of an IGCC electric utility steam generating unit subject to the provisions of this subpart and for which construction, reconstruction, or modification commenced after February 28, 2005 but before May 4, 2011, shall meet the requirements specified in paragraphs (f)(1) through (3) of this section.

(1)Except as provided for in paragraphs (f)(2) and (3) of this section, the owner or operator shall not cause to be discharged into 242the atmosphere any gases that contain NOx (expressed as NO2) in excess of 130 ng/J (1.0 lb/MWh) gross energy output.

(2)When burning liquid fuel exclusively or in combination with solid-derived fuel such that the liquid fuel contributes 50 percent or more of the total heat input to the combined cycle combustion turbine, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NOx (expressed as NO2) in excess of 190 ng/J (1.5 lb/MWh) gross energy output.

(3)In cases when during a 30-boiler operating day rolling average compliance period liquid fuel is burned in such a manner to meet the conditions in paragraph (f)(2) of this section for only a portion of the clock hours in the 30-day compliance period, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NOx (expressed as NO2) in excess of the computed weighted-average emissions limit based on the proportion of gross energy output (in MWh) generated during the compliance period for each of emissions limits in paragraphs (f)(1) and (2) of this section.

(g)Except as provided in paragraphs (h) of this section and § 60.45Da, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after May 3, 2011, shall cause to be discharged into the atmosphere from that affected facility any gases that contain NOx (expressed as NO2) in excess of the applicable emissions limit specified in paragraphs (g)(1) through (3) of this section.

(1)For an affected facility which commenced construction or reconstruction, any gases that contain NOx in excess of either:

(i)88 ng/J (0.70 lb/MWh) gross energy output; or

(ii)95 ng/J (0.76 lb/MWh) net energy output.

(2)For an affected facility which commenced construction or reconstruction and that burns 75 percent or more coal refuse (by heat input) on a 12-month rolling average basis, any gases that contain NOx in excess of either:

(i)110 ng/J (0.85 lb/MWh) gross energy output; or

(ii)120 ng/J (0.92 lb/MWh) net energy output.

(3)For an affected facility which commenced modification, any gases that contain NOx in excess of 140 ng/J (1.1 lb/MWh) gross energy output. * * *