15 ELR 10022 | Environmental Law Reporter | copyright © 1985 | All rights reserved

Marking Time: A Status Report on the Clean Air Act Between Deadlines

Editors' Summary: The gray-bearded Clean-Air Act may appear to be enjoying a quiet slumber in the lull between its 1982 and 1987 deadlines for eliminating unhealthy air pollution, but it is not. The pages of the Federal Register and the federal court reporting services are crammed with legal developments under the Act. They receive relatively little attention in comparison to Congress' futile efforts to give the Act its second major overhaul since 1970, not to mention the general hullabaloo over hazardous waste, but they are important. Lacking guidance from Congress, EPA has reshaped the Act and its implementation, refining the basic regulatory tools, charting administrative paths around the potentially disastrous 1982 attainment deadline, and giving the states increasing implementation authority. EPA also has had its hands full trying, with mixed success, to fend off states' and environmentalists' efforts to force the agency to expand regulation of toxic air pollutants and emissions of sulfur dioxide, the pollutant most often cited as a cause of acid rain. The author reviews 1984 judicial and administrative actions under the stationary source provisions of the Clean Air Act and concludes that EPA has rebuilt the Act into a slimmed-down, stripped-down model that can continue forward without major breakdown largely because it skirts the major challenges posed by the Act's 1977 Amendments.

[15 ELR 10022]

The Clean Air Act¹ demands impressive pollution control achievements from an imperfect federal-state "partnership" under the pressure of impossible deadlines. Congress originally set a final deadline of 1977 for achievement of the Act's ambitious air quality goal, which essentially requires every corner of the country, from soot-clouded Pittsburgh to smog-shrouded Los Angeles, to have air clean enough to allow a population of elderly asthmatics to pursue active lives outdoors. Failure to meet the deadline, had the Act been strictly enforced in its 1970 version, would have put a stop to economic growth in urban America and had a variety of other unpleasant consequences. When the initial combination of federal and state regulatory programs fell far short of the 1977 goal, Congress extended the deadline for attaining the air quality standards to 1982 or 1987, requiring imposition of tough new controls as a condition of the former extension, and even sterner measures as the price of the latter. Congress also raised the stakes for missing the deadlines with heavy new sanctions.

In 1982 Congress was expected to amend the statute again to deal with the potentially severe consequences of continuing widespread violation of the impending deadline. It tried, but became bogged down in controversy over automobile sales, regulatory relief, acid rain, and hazardous air pollutants.² But while some grimly awaited the legal and administrative explosion that could have been triggered, EPA found creative ways to defuse the 1982 deadline.

Now, two years later, some are predicting that the status quo will continue until the 1987 deadline is imminent and Congress is forced to find some way out of its legislative stalemate.³ If this is true, 1985 might seem a good time for environmental lawyers to focus their attention on other, more active areas.⁴ But even during a period of legislative quiet, the Clean Air Act demands attention. It is a pervasive and imposing body of law that still is [15 ELR 10023] changing in a continuous stream of administrative actions and court decisions.

This comment reviews Clean Air Act programs for controlling emissions from factories, power plants, and other "stationary sources,"⁵ and surveys the dozens of important judicial and administrative developments that took place in 1984. The survey reveals that EPA's jury-rigged administrative scheme for dealing with the 1982 deadline seems to be quietly doing its job despite its striking dissimilarity to the statutory scheme. In addition, the geographical scope of the "nonattainment" problem is shrinking as area after area is deemed to have achieved the air quality standards. EPA's quiet success with the 1982 deadline attracted less attention than the futile efforts of states and environmental groups in the northeast to use the Act's interstate pollution provisions to force midwestern states to cut their huge emissions of sulfur dioxide, believed a major cause of acid rain in New England. On another front, EPA won a major battle in its efforts to make its regulatory process more economically rational as the Supreme Court upheld an important application of the "bubble policy." The year 1984 also was marked by highly visible legal conflict over the need for EPA to regulate additional hazardous air pollutants and categories of new pollution sources, while in the background, the Agency continued its efforts to delegate responsibility for implementing hazardous pollutant and new source standards to the states. The trend toward decentralized implementation of the Act was countered somewhat as EPA's Clean Air Act enforcement program continued to show renewed vitality in 1984. The following pages summarize the 1984 judicial and administrative developments under three categories of stationary source programs: air quality programs, federal emission limitations, and enforcement.

Air Quality Programs

National Ambient Air Quality Standards

The uniform national ambient air quality standards (NAAQS), promulgatged by EPA, translate the Clean Air Act's fundamental objectives that air pollution not endanger the public health (primary standards) or welfare (secondary standards) into specific numerical concentrations. The 1967 Amendments to the Clean Air Act directed EPA to promulgate a list of air pollutants that are emitted by numerous, widespread, and diverse sources and whose prosence in the atmosphere could constitute a threat to public health and welfare.⁶ The federal government then had to publish "air quality criteria" for each such pollutant.⁷ The 1970 Amendments directed EPA to promulgate NAAQS for the "criteria pollutants."⁸

The NAAQS are not isolated goals, but a central functional component — the cogwheel that directly drives much of the complex regulatory machinery established by the 1970 Amendments to the Clean Air Act. The primary NAAQS are set at levels believed adequate to protect the segments of the population most vulnerable to air pollution, with an extra margin for safety, and without regard to the cost of achieving the standards.⁹ Secondary standards address harm to environmental and economic interests, such as "soils, waters, crops," "man made materials," "visibility and climate," "economic values," and "personal comfort."¹⁰ There are NAAQS in effect for six pollutants: total suspended particulate, sulfur dioxide, ozone, nitrogen oxides, carbon monoxide, and lead.¹¹ The states are virtually compelled by the Act to develop and implement plans to achieve the NAAQS, and must periodically add more and more control requirements until that goal is achieved.¹²

The NAAQS are not stationary targets. The Act directs EPA to review and revise them periodically.¹³ In 1984 EPA was at work on revisions for several of the NAAQS, most notably the particulate standard. The Agency proposed narrowing the subject of the primary standard from total suspended particulate, that is, airborne particles of all sizes, to fine particulate, defined as particles with an aerodynamic diameter less than or equal to 10 micrometers.¹⁴ Particles of this size are the largest that generally are respirable, so the new "PM10" standard would focus principally on human health. The PM10 standard is still in an extended comment period.¹⁵ EPA considered limiting the secondary standard to fine particulate as well, but because of uncertainties about some of the critical issues, such as the role of fine particulate in acid rain and visibility impairment, decided to forego change at this time.¹⁶

The only other formal action on the NAAQS was a proposal to retain the current nitrogen dioxide standard unchanged.¹⁷ EPA did, however, launch a review of the lead NAAQS,¹⁸ and continue work on revisions to the [15 ELR 10024] ozone standards, circulating a criteria document at the end of the summer and scheduling a review meeting for the spring of this year.¹⁹ Revision of the NAAQS attracts considerable attention since changes in the allowable levels of air pollution can dramatically change the impact of air quality on public health and welfare, and the nature and cost of the pollution control requirements faced by industry.

State Implementation Plans

The Clean Air Act gives the difficult job of achieving the national air quality standards to the states. After promulgation or revision of an NAAQS, the states have nine months to prepare state implementation plans (SIPs), which must demonstrate attainment and maintenance of the air quality standards within three years.²⁰

Emission limitations for categories of air pollution sources are the building blocks of the SIP. The Act requires the states to use this mechansim.²¹ A state might develop a SIP by first calculating draft emission limitations for different source categories (for example, fossil fuel burning utility power plants) — usually on the basis of some notion of what available control technologies will achieve and what the industry can afford. The state then tests the impact of the collection of emission limitations with air quality models and tightens emission limitations if necessary to achieve the NAAQS. The emission limitations then are made enforceable against individual sources through regulations, permits, orders, or some combination.

If emission limitations are SIP building blocks, then air quality modelling is the engineering science that explains how to put them together into a viable structure. Some might argue, however, that modelling is more sorcery than science. Air-quality or "dispersion" modelling relates air quality at specified locations to different levels of emissions from the factories, highway traffic, and other sources in the area.It can be used to estimate the emission reductions from an individual source or all sources in an area necessary to achieve the NAAQS at one or more air quality monitors, but it is an imprecise tool whose accuracy diminishes with the distance between source and monitor. The use of modelling in designing and evaluating SIPs has long been a target for industry litigators. It is an inviting target because of its unavoidable imprecision, but the courts generally have recognized that modelling is the only tool EPA and the states have to carry out the air quality analyses required by the Act and have deferred to the agencies' technical expertise on these issues. Last year in Ohio Power Co. v. United States Environmental Protection Agency, the Sixth Circuit upheld EPA's decision to use "Pasquill-Gifford Class A coefficients in its model for determining dispersion of sulfur dioxide emissions from power plants under least stable wind conditions in rural areas."²² The Ninth Circuit also balked a becoming too involved with the technical niceties of modelling in 1984. It rejected a challenge to the modeling used by EPA in issuing a 1979 prevention of significant deterioration permit in Hawaiian Electric Co. v. United States Environmental Protection Agency,²³ citing the needto defer to EPA's expertise. The court also ruled that the Act limits challenges to the models on which EPA bases decisions to the prescribed period after the decision becomes final and does not contemplate reopening decisions whenever new scientific information raises questions about the modelling.

The SIP development process is quite an undertaking for the states, but the Clean Air Act did not expect them to do it alone. Indeed the Act makes EPA a "full partner" in the SIP process. It creates an administrative system for implementing that partnership that is akin to making an EPA lawyer and a state engineer run a three-legged race over an unfamiliar marathon course with a three-hour time limit.

States must submit their SIPs to EPA for review and approval. EPA must ensure that the plans demonstrate attainment of the NAAQS within the statutorily prescribed deadline.²⁴ States may consider economic impacts in deciding how to attain the NAAQS, but EPA must limit its review to whether the SIP will attain and maintain the standards.²⁵ The Act gives EPA four months to act on a SIP submittal.²⁶ If EPA approves the SIP or revision, the federal agency promulgates it as a federal rule, making the SIP equally enforceable by EPA, the states, and private citizens.²⁷ If it disapproves the rule, EPA's only recourse appears to be to promulgate and enforce a substitute rule itself.²⁸ This option has always been unpalatable to EPA, probably because the Agency lacks the resources and political capital to promulgate and enforce regulations for all the sources in a state.²⁹

EPA has tried a variety of creative ways of strengthening inadequate SIPs without formally disapproving and replacing deficient provisions. The courts have been unreceptive to these approaches. Last year, in Indiana & Michigan Electric Co. v. United States Environmental Protection Agency³⁰ the Sixth Circuit overturned one [15 ELR 10025] such creative approach. EPA had approved an Indiana SIP provision governing sulfur dioxide emissions, but had deferred action on a companion measurement provision, which would have relaxed the emission control requirements somewhat by averaging emissions. The court held that EPA could not use this back-door method of strengthening the SIP without expressly finding that the sulfur dioxide rule, with the averaging provision, would result in nonattainment of the NAAQS.

In Bethlehem Steel Corp. v. Gorsuch³¹ the Sixth Circuit addressed a similar question. EPA had disapproved a state delayed compliance order, finding it inconsistent with the federal version of the Indiana particulate SIP. The court, on rehearing, overturned the EPA action. The federal provision consisted of only a part of the rule Indiana originally promulgated, a 40 percent opacity limit. EPA had disapproved a 15-minute daily exception, thereby, the court ruled, creating a provision more stringent than the state had ever adopted without going through the procedures providing for independent EPA promulgation of SIP requirements.

It is not surprising that the cumbersome SIP process did not result in attainment of the NAAQS across the country by the first deadlines in 1977.³² In fact virtually every ruban area of the country was in violation of at least one NAAQS after the appropriate deadline.³³ Congress reacted by extending the deadlines, requiring extensive revision of SIPs, strengthing EPA's hand in the SIP partnership, and raising the stakes for failure to meet the new attainment deadlines. The 1977 Amendments to the Act extended the attainment deadlines to 1982, or to 1987 for areas like Houston and Los Angeles that could demonstrate that they had such serious smong problems that the 1982 deadline was unattainable.³⁴ States then had to identify areas not in attainment of the NAAQS and to submit lists of such areas of EPA for approval.³⁵

Once nonattainment areas were identified, states had to revise their SIPs to demonstrate planned attainment of the primary NAAQS in those areas by the new deadlines. The revised SIPs had to be submitted by January 1, 1979 (for 1982 deadline areas) or July 1, 1985 (for 1987 areas).³⁶ The Amendments added a new Part D to the Act, spelling out what must be included in nonattainment area SIP revisions.³⁷ They had, at a minimum, to impose reasonably available control technology standards on existing sources, and to demonstrate that "reasonable further progress" would be made toward attainment in the years before the deadline. The 1977 Amendments exacted an extra regulatory price for extension of the attainment deadline to 1987. States with extensions had to establish mobile source inspection and maintenance (I&M) programs and other added control measures.³⁸

Each Part D SIP revision also had to include a tough new-source review program that prohibited construction of major new sources in nonattainment areas without construction permits. The revised SIPs had to condition permit issuance on: (1) either emission reductions from existing sources, beyond those already required, sufficient to offset the new emissions, or SIP provisions establishing sufficient extra reductions to achieve a "margin for growth;" (2) compliance with "the lowest achievable emission rate" by the new source; (3) compliance with applicable regulations by all other sources in the state operated by the owner of the new source; and (4) implementation of the SIP for the nonattainment area in question.³⁹

The new source review program intentionally made it very difficult to build large new sources of air pollution or to modify existing sources in ways that would increase air pollution in nonattainment areas. But it left open a critical question governing the scope of the program. New source review applies to modifications if they increase emissions from a major "source," but the statute did not define "source." In 1981 EPA issued nonattainment program regulations defining "source" as an entire plant,⁴⁰ thus enabling a company to modernize a plant with new meitting equipment, but to avoid new source review by offsetting the emission increase with decreases at existing emission points. So long as the new increase was below a level EPA had defined as de minimis, the change would not trigger new source review.

The Natural Resources Defense Council (NRDC) successfully challenged the regulations in the D.C. Circuit.⁴¹ Last year the Supreme Court reversed in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., ruling that the D.C. Circuit should have deferred to EPA's interpretation of the statute since the language and legislative history did not reveal a clear congressional choice for the definition of "source."⁴² The decision will significantly reduce the applicability of nonattainment area new source review.

Failure to meet the applicable deadline for Part D SIPs could cost a state heavily. Major new source construction in nonattainment areas was automatically banned when the 1979 deadline passed, and EPA could cut off major sources of federal financial assistance, including highway funding.⁴³

The nonattainment area program placed heavy burdens on the states and EPA. The pollution problems left [15 ELR 10026] to be addressed were those that were the least well understood, the most expensive or politically difficult to correct, or both. An example is the mobile source I&M program. Congress had shied away from programs requiring testing and correction of the performance of motor vehicle emission controls once cars were out of the manufacturer's hands and on the road, for fear the job would be administratively difficult and politically unpopular. But in 1977 when it was clear that new car emission controls and transportation control plans (for example, express bus lanes) were not enough to dispel the smong shrouding most of urban America, the legislators directed EPA to bite the bullet. The I&M requirement has proven difficult to implement because of opposition in state legislatures.

Recent cases demonstrate the point. In Scanlon v. Commonwealth Department of Transportation,⁴⁴ the Pennsylvania Supreme Court cut the ground out from under the state's inspection and maintenance program, ruling that the state Department of Transportation had lacked authority to enter into a 1978 federal court consent decree in which it agreed to adopt a program. The federal court had vigorously enforced the decree and imposed highway funding sanctions,⁴⁵ resulting in 1983 passage of a state law authorizing implementation of an I&M program if necessary to avoid the loss of federal funds under court order. The state supreme court held that even this law did not remedy the lack of authority since it assumed a valid federal court decree, a condition not met by the 1978 agreement.

As the Third Circuit recently noted, as a result of the state court's action, the "Commonwealth of Pennsylvania finds itself between a rock and a hard place."⁴⁶ The federal court of appeals affirmed a district court decision⁴⁷ refusing to vacate the 1978 consent decree.⁴⁸ Pennsylvania thus is liable for the funding sanctions earlier imposed.

It may be that the prospect of implementing the I&M requirement has proven more objectionable to state legislatures than the job of implementing it has proven to state agencies, since the former has generated dozens of reported legal battles and the latter few if any. Whatever the long-term success of inspection and maintenance, it illustrates that Part D of the Clean Air Act demands that states do a variety of jobs that they will find extremely unpleasant in prospect. This resistance slows implementation, belies optimistic SIP projections, and demands a firm hand at the EPA controls if the nonattainment program is to make progress.

Despite the difficulty of the problems to be addressed by the nonattainment area SIP revisions, the schedule was ambitious, and laced with sufficient sanctions for tardiness to make miserable the lives of all participants — EPA, states, and industry — if the process became bogged down. It did.

The first round of SIP revisions were to have been submitted and approved by July 1, 1979. Only Wyoming met the deadline for its entire Part D SIP.⁴⁹ Many states substantially complied with the submittal deadline, but with clearly inadequate plans.⁵⁰ The Act apparently directed EPA to disapprove the plans and take over the job itself. Seeking a way around this burdensome mandate, EPA invented the "conditional approval" mechanism, which enabled it to take the formal step of approving the plan, while giving the state more time to correct the deficiencies. This creative solution had no explicit support in the Act, but every court to address it decided that it was within EPA's authority.⁵¹ Resolving the conditions on the approvals has not proved easy, however. Many have not been corrected yet.⁵²

The conditional approval mechanism enabled EPA to dodge the bullet of the 1979 SIP approval deadline. EPA imposed the construction ban on all states that missed the 1979 SIP revision deadline, with the proviso that the ban would be lifted when plans were approved (or conditionally approved).⁵³ The vast majority of the missing revisions were on hand by the 1982 attainment deadline, but many of the areas covered failed to achieve the NAAQS by that date. EPA then had another bullet to face, and theoretically a larger one, since the SIP revision deadline was a step toward a goal, but the attainment deadline was the goal.⁵⁴

As the 1982 deadline loomed large, EPA wrestled with its options. It seemed headed in the direction of a hardline approach to delinquent states with a 1983 proposal to disapprove the Part D SIPs for those regions that missed 1982 attainment deadlines and to reimpose the construction ban.⁵⁵ That step could have resulted in EPA having to promulgate SIP provisions for many areas of the country.

EPA policy softened twixt proposal and promulgation. The Agency decided that the construction ban was not necessary for regions that had approved Part D SIPs in place; that it could instead invoke the procedures for identifying and remedying inadequate SIPs in § 110(a)(2)(H) and § 110(c). EPA would notify the states that their SIPs were inadequate and call for further revisions.

[15 ELR 10027]

This policy was in operation in 1984. In February and September 1984 EPA sent out notice letters covering 36 nonattainment areas, and gave the states one year to correct the SIP deficiencies.⁵⁶ Areas that did not meet 1982 attainment deadlines and never had Part D SIPs approved remain subject to the construction ban, and are further penalized by being given less time to revise their plans. This policy stretches the statutory scheme since it nearly severs the connection between plans and air quality results, but it has not yet been challenged in court, perhaps because industry and environmentalists see no alternative. This silence may be broken in the coming months, however.⁵⁷

EPA has its hands full reviewing SIP revisions. In addition to the holdover 1979 revisions, EPA must review and act on the Part D SIPs due by mid-1982 for 1987 attainment areas. During 1984 EPA approved at least 20 revisions and proposed approval of another. It proposed to disapprove three revisions, disapproved four and declined to act on three others.⁵⁸

EPA must iron out a new wrinkle with the 1987 SIPs. California submitted SIP revisions that candidly admitted that attainment was not possible by 1987. EPA must decide how to respond to these SIPs. The areas are not obvious candidates for EPA SIPs, because the responsible state and local agencies have made serious efforts to develop workable programs and EPA might be no better at developing a plan, and worse at implementing it. EPA is considering a policy that would require the affected areas to recheck for additional controls and to tighten up on implementation of the revisions so as to continue to make as much progress toward attainment as possible.⁵⁹ So long as all possible efforts are made and progress results, EPA would hold sanctions in abeyance, perhaps even after 1987. What if other states with equally serious problems have submitted attainment SIPs that cannot be implemented on schedule or will not achieve projected emission reductions? It would seem that this approach will end up with less pollution control than would a more honest revision of the SIP. Yet the Act and EPA's announced SIP revision policies seem to reward the jurisdiction with the excessively optimistic attainment SIP, since it avoidsthe construction ban at least until 1987 and avoids the close scrutiny of its implementation efforts in the interim. Resolving these problems will be a challenge for Congress if it hopes to beat the 1987 deadline, and a headache for EPA if Congress fails to act.

While the problem of developing adequate nonattainment area SIPs worsens, the scope of the nonattainment problems has shrunk. EPA has approved the bulk of a steady stream of petitions to redesignate areas classified as nonattainment for the primary standards in 1978 as attainment or nonattainment only for the secondary standards, which carry no deadline. In 1984, ELR Recent Developments reported 12 instances in which EPA approved or proposed approval of redesignation of one or more primary nonattainment areas to secondary nonattainment or attainment; on the other side of the coin, the Agency rejected three such proposals.⁶⁰ Whether the spread of attainment is the result of air pollution control or changed criteria for evaluation attainment status is a question that cannot be answered here, but the redesignation trend may have redefined the nonattainment problem by the time Congress gets around to revising Part D.

Prevention of Significant Deterioration and Visibility Protection

* Prevention of Significant Deterioration. Congress amended the Clean Air Act in 1977 to establish a program for the prevention of significant deterioration of air quality (PSD) in areas cleaner than required by the NAAQS.⁶¹ The legislated PSD program drew heavily on an administrative program established by EPA as a result of Sierra Club v. Ruckelshaus,⁶² a case holding that the statutory purpose "to protect and enhance" the nation's air quality required established of a program to keep clean areas clean even though the statute made no specific provision for such a program. The PSD program was quiet in 1984, but has been controversial due to its complexity, environmental importance, and concern that it will stifle industrial development in precisely those sparsely populated areas in which development has the least adverse health impact. The Act now requires states to include in their SIPs PSD programs for all areas surpassing the NAAQS.⁶³ Two programs govern the PSD areas: air quality increments and new source review.

The air quality increment program divides PSD areas into three classes (I, II, and III). The statute makes some areas, such as national parks of over 5,000 acres, mandatory Class I areas. All other areas were statutorily designated Class II, but may in theory be redesignated to more or less heavily protected status. In fact the redesignation process has not been used.⁶⁴ The statute prescribes increments of sulfur dioxide or particulate pollution — maximum amounts of ambient pollution that may be [15 ELR 10028] added to the air. In Class III areas, air quality may be degraded to the level of the NAAQS, and the increments are progressively smaller for Class II and I areas.⁶⁵ If a major new source will add enough pollution to the air to exceed the increment, it may not be built. EPA was to review the criteria pollutants other than particulates and sulfur dioxide and promulgate increments for these "set II" pollutants, but has not done so.⁶⁶

The second major component of the PSD program is the new source review and permit program.⁶⁷ Major new sources and modifications in PSD areas must obtain permits from EPA or states to which the program has been delegated. The permits require among other things, modelling analysis of air quality impacts of the new or modified source, monitoring of air quality before and after the source begins emitting, and installation of the "best available control technology" (BACT). BACT is defined on a case-by-case basis, but may not be less stringent than any applicable new source performance standard. As with the nonattainment program, a critical question under PSD, and the only one addressed in 1984, is the interpretation of the provisions that govern whether a particular new source or modification must undergo new source review. In Hawaiian Electric Co. v. United States Environmental Protection Agency,⁶⁸ the court ruled that a proposed increase in the sulfur content of the fuel burned in an electric generating station constituted a major modification requiring PSD review. The court upheld EPA's determination that the proposed fuel switch would qualify as a major modification because it is a "change in the method of operation."

* Visibility. The visibility program also was established by the 1977 amendments.⁶⁹ It provides added protection for those PSD Class I areas for which visibility is deemed by the federal land manager to be an important value. EPA was to study the visibility problem and identify means of moving to a national goal of no visibility impairment in protected areas. The amendments empowered EPA to promulgate regulations under which it could require states to revise their SIPs to protect visibility. The statute also provides that major sources in existence less than 15 years at the passage of the 1977 amendments could be required to install the "best available retrofit technology" to avoid causing or contributing to visibility impairement in a protected area.⁷⁰

EPA promulgated visibility regulations in 1980⁷¹ listing 36 states that would have to amend their SIPs to include visibility provisions by September of 1981. The rules also required protection of "integral vistas," special views of protected Class I areas from outside their boundaries. When 35 of the 36 states had failed to amend their SIPs by late 1982, the Environmental Defense Fund and others filed a citizen suit alleging that EPA should have promulgated federal visibility programs for those states. The parties settled the suit in 1984 with EPA agreeing to develop and implement visbility plans for the states unless the state SIP revisions were forthcoming by specified dates.⁷² In October of 1984 EPA proposed to disapprove the visibility SIPs of 34 states and to promulgate federal provisions.⁷³

Interstate Air Pollution

The principal problem Congress had in mind when it established the SIP process in 1970 was heavy localized concentrations of air pollution found near large individual sources or groups of sources. As a result, the SIP process focused on individual states for the most part. It did give some attention to interstate pollution in § 110(a)(2)(E), but the control mechanism was relatively weak, largely because it was consensual rather than mandatory.⁷⁴ In 1977 Congress tried to graft stronger interstate pollution control mechanisms onto the SIP process with modifications to § 110(a)(2)(E) and a new § 126.⁷⁵ Section 110(a)(2)(E) now requires states to control pollution from their own sources that would "prevent attainment or maintenance" of NAAQS or "interfere with" implementation programs required under PSD in another state. Section 126 created a procedure by which a state believing itself the recipient of pollution from another state in violation of § 110(a)(2)(E) could petition EPA to force a revision of the offending SIP. The 1977 amendments also included a new § 115,⁷⁶ governing international air pollution. It empowered EPA, upon receipt of a report from an international agency or from the Secretary of State concluding that pollution from the U.S. was causing or contributing to air pollution in another country likely to endanger health or the envirnment, to require the state from which the offending emissions arose to modify its SIP. Section 115 applies only to those countries that provide equivalent protection to the U.S.

While the three amendments provided stronger legal tools for addressing air pollution that crosses state boundaries, the weakness of available models for analyzing long-range transport of air pollution combined with EPA's rather strict criteria for granting a § 126 petition or finding a § 110(a)(2)(E) violation have rendered them ineffectual.⁷⁷

The interstate air pollution provisions have not failed for lack of use. States and environmental groups have filed a number of § 126 petitions and have directly challenged a number of proposed SIP revisions on the basis of alleged violations of § 110(a)(2)(E). In no reported case has the result been imposition of stricter SIP provisions in the state exporting pollution.

[15 ELR 10029]

The cases have all involved sulfur dioxide emissions and have in most cases beenfueled by concern over acid rain, which is probably caused to a significant extent by those emissions.⁷⁸ The Second Circuit provided the first comprehensive interpretation of § 110(a)(2)(E) in three related decisions concerning the impact of proposed SIP revisions in New York and Connecticut that would allow increases in sulfur dioxide emissions.⁷⁹ The court opened the door to interstate pollution claims somewhat more than EPA wished, but decided in favor of the Agency on the key issues.⁸⁰ The court deferred to EPA's conclusion that EPA could not model the impact on Connecticut of the transformation of sulfur dioxide gas emitted in New York into sulfate particulate. The court observed that EPA probably is correct in concluding that "significant" increases in the level of a nonattainment pollutant in a nonattainment area in one state attributable to emissions from another "prevent attainment," but ruled that de minimis increases do not. The court also upheld EPA's position that interstate pollution could "prevent maintenance" only if it would push the receiving state's air quality over the NAAQS despite the controls imposed in the receiving state's SIP. In the next several yers, courts of appeals relied on these rulings to dismiss a number of actions alleging that sulfur dioxide emissions in the Midwest violated § 110(a)(2)(E) because of their impacts in Pennsylvania and New England.⁸¹

The § 126 process did not aid states concerned about interstate pollution any more than did § 110(a)(2)(E). In 1981 EPA promulgated narrow criteria for approval of § 126 petitions.⁸² EPA did not move quickly to apply those criteria, spending years evaluating petitions despite the 60-day deadline for action set by the statute. A recent decision gave petitioners some procedural solace, but no substantive aid. In New York v. Ruckelshaus,⁸³ a district court ruled that EPA had violated a nondiscretionary duty in not ruling on a group of § 126 petitions filed in 1980 and 1981 within the statutory 60-day deadline. EPA's response was already in the works. A month earlier it had proposed to deny the petitions and it carried out that promise in December of 1984.⁸⁴ The petitions failed largely because the short-range pollution impacts, which could be demonstrated to EPA's satisfaction, did not hit nonattainment areas, and the long-range impacts, which did hit nonattainment areas, could not be demonstrated to EPA's satisfaction.⁸⁵

A 1984 court decision upheld EPA's rejection of what probably was the strongest § 126 petition, which involved the impact of a power plant in Indiana on sulfur dioxide pollution, not sulfate, in Louisville, Kentucky a few miles away. In Air Pollution Control District of Jefferson County v. United States Environmental Protection Agency,⁸⁶ the Sixth Circuit upheld EPA's rejection of the petition even though the Indiana plant, which because located in a rural attainment county burned high-sulfur coal without controls, contributed large quantities of pollution to the air in downwind Louisville, which had required its utilities to install expensive scrubbers in order to attain the NAAQS. The hole in Jefferson County's argument was that the specific areas where the impact was "significant" did not violate the NAAQS, even though they were within the larger nonattainment area. The court found that such pollution did not "prevent attainment" in Jefferson County because it was not strongly affecting the areas causing the nonattainment designation. Nor did the pollution "interfere with" PSD measures. Because located in a nonattainment area, the affected areas did not fall under the PSD program. This cute geographical loophole may be closing, however. EPA has proposed to reclassify Jefferson County attainment for sulfur dioxide, in which case the state could develop a PSD program with which the Indiana plant would interfere, giving grounds for a new § 126 challenge.⁸⁷ To date, however, Jefferson County's efforts only dramatize the weakness of the Act's interstate pollution provisions.

Emission Trading

The pollution control programs of the Clean Air Act establish a regulatory framework based on emission limitations calculated for categories of sources and applied to each individual emission point or source in each category. Administrative simplicity argues for making the categories as broad as possible — thus, a SIP might set a single particulate emission limit for all manufacturing sources, perhaps with an exemption for small sources or separate standards for one or two categories with special problems, such as coke ovens or glass manufacturing plants. Nevertheless, the broad categories in SIPs include a wide range of diverse operations and types of air pollution sources.

Economists have long argued that uniform regulation across broad categories is inefficient because the cost of reducing pollution varies from source to source within such categories.⁸⁸ It would make more sense economically for those sources for which it is relatively cheap to control [15 ELR 10030] a pollutant to have more stringent emission limits, and those for which control is relatively expensive to have looser limits.⁸⁹

"Emission trading" includes several regulatory reforms that enable companies to take advantage of these differences in pollution control cost, about which company personnel know far more than government regulators. The simplest type of emission trading is often called the "bubble" concept. A plant with several emission points, e.g., smokestacks, is treated as though it had but one. Rather than complying with the government-calculated emission limits for each smokestack, the plant manager has the option of controlling more at some and less at others, so long as total emissions from the plant are the same as under the applicable emission limits. The plant is treated as though it were covered with a bubble that has only one emission outlet.

Emission trading includes several approaches that use or build upon the bubble concept. The offset policy, the only emission trading scheme discussed in the Act, is a means of allowing growth in nonattainmewnt areas and improving air quality at the same time by trading controlled new source emissions against decreases in existing source emissions.⁹⁰ "Netting" is a term used by EPA to describe a somewhat similar process in which a plant modification avoids new source control requirements by offsetting emission increases with decreases at existing sources within the plant. Modifications are treated as new sources if they increase emissions by more than an EPA-specified de minimis amount. If the net emission increase from the combination of a major plant modification and extra emission controls on existing sources is less than the threshold amount that ordinarily qualifies a modification as a new source under the nonattainment or PSD new source review program, new source review does not apply. The final component of emission trading is banking, a policy EPA developed to stimulate use of bubbles, offsets, and netting.⁹¹

For all its theoretical appeal, emission trading has been greeted with more hostility than welcome in the complex and rigid world of Clean Air Act regulation. EPA had limited success in developing a series of new source bubble applications. In 1976 EPA required offsets as a condition of new source construction in nonattainment areas.⁹² However, in 1976 when EPA proposed § 111 new source performance standards (NSPS) for nonferrous metal smelters that would have allowed new units to avoid the standards through a form of netting, the D.C. Circuit struck down the rules as inconsistent with the Act.⁹³ EPA later proposed PSD rules that allowed netting for modifications and the same court said that application of the bubble concept was requsired under the Act.⁹⁴ What was not allowed with NSPS was required in the PSD program. EPA considered allowing netting in nonattainment areas at the time, but initially decided it would not. In late 1980 the Agency began to change its mind, and in 1981 promulgated rules allowing nonattainmewnt area netting by defining "source" as an entire plant.⁹⁵ NRDC sued and the D.C. Circuit ruled that this application of the bubble concept was inconsistent with the purposes of the nonattainment program.⁹⁶

In 1979 EPA turned its regulatory reform attention to existing sources. It issued a policy statement urging the states to allow industry to use the bubble policy in existing facilities regulated by SIPs.⁹⁷ The encouragement fell on deaf ears.⁹⁸ The "generic bubble" rule⁹⁹ expanded interest in rubbles, but state officials and environmentalists continued to be skeptical, fearing that the policy would open loopholes in the Act's thinly woven regulatory fabric.¹⁰⁰ As of late 1984, EPA had approved only 62 bubbles, though an additional 145 were reported in the works.¹⁰¹

The implementation problems that give some bubble opponents pause are illustrated in a recent court decision. In United States v. National Steel Corp.,¹⁰² the district court ruled that defendant was liable for penalties for violating interim steps in a consent decree intended to bring it into compliance with the SIP even though defendant had a bubble application for the facility pending before the state and EPA at the time.¹⁰³ EPA later disapproved the proposed bubble plan,¹⁰⁴ because on closer examination the company was taking credit for emission reductions that would not likely occur.¹⁰⁵ This bubble [15 ELR 10031] would have both delayed enforcement and reduced pollution control.

One reason for the slow acceptance of the bubble policy was EPA's inability to resolve internal conflicts over an emission trading policy that would govern qualification of emission reductions for all types of trading as well as the criteria for approval of each type of trade. Although work began in 1979, the policy proved difficult to craft, in part due to strong differences within EPA over issues like the use in trades of emission reductions resulting from shutting down sources, and the extent to which trading should be allowed in nonattainment areas without approved attainment demonstrations. Though a proposal was published in 1982, the policy still has not been issued.¹⁰⁶

While looking for new applications for the bubble concept, EPA received a proposal by Central Illinois Public Service (CIPS) to enclose two power plants both covered by the 1971 NSPS in a bubble.¹⁰⁷ The proposal called for installation of scrubbers on one unit, thus enabling it to halve the applicable emission limit, which it otherwise would have had to meet by purchasing out-of-state lowsulfur coal. At the other unit it would burn mediumsulfur local coal, saving considerable money over the cost of low-sulfur coal for both units and cutting total emissions somewhat. While EPA initially was warm to the proposal, it took no action until quite recently, as discussed below.

In 1984 emission trading received several large boosts. The most important development was the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., discussed above.¹⁰⁸ The Court's legal holding is narrowly limited to the legality of nonattainment area netting, but broad dicta on the need for deference to EPA's interpretation of nonattainment area programs will encourge those in EPA who want to expand use of the bubble concept.¹⁰⁹

The Supreme Court decision seems to have added momentum to other EPA emission trading initiatives as well. The Agency finally has decided to proceed with approval of the CIPS NSPS bubble proposal.¹¹⁰ The emission trading policy showed new life when the long deadlocks over the use of shutdowns in trades and over emission trading in nonattainment areas without approved attainment demonstrations reportedly were broken at the end of 1984 with a decision to allow trading with controls.¹¹¹ The current plan reportedly is to allow the use in trades of emission reductions from shutdowns only where the shutdowns occur at or after the bubble application is filed. Trades in nonattainment areas without attainment demonstrations would require 20 percent more emission reductions than would be achieved through reasonably available control technology.¹¹² EPA regional offices would be allowed to disapprove emission trading proposals that meet these criteria because of case-specific concerns over the use of shutdowns or other matters. No date has been set for issuance of the policy however.

Tall Stacks

In 1977 Congress added a new § 123¹¹³ to the Act to combat the use of tall smokestacks to bring large pollution sources like electric utility boilers into compliance with air quality standards. Tall stacks disperse emissions and enable large sources to operate with no emission-reducing controls without causing NAAQS violations. Dozens of very large power plants, situated and designed to burn high-sulfur midwestern coal, were built in the early 1970s with extremely tall stacks to take advantage of the benefits of dispersion. These plants often are alleged to contribute significantly to acid rain in the Northeast. Section 123 requires EPA in evaluating the air quality impact of large sources to ignore the extra dispersion resulting from as much of such tall stacks as exceeds the height dictated by "good engineering practice," with certain exceptions. In other words, the law requires a fictional analysis of the air quality impact of plants with tall stacks; the sulfur dioxide pollution at a point near a coal-fired power plant with a 1,000-foot stack would be modelled as though the stack were shorter, say 600 feet tall.

EPA promulgated regulations implementing the new section and environmentalists sued to force the Agency to tighten the restrictions. In 1983 petitioners won on several major points in the D.C. Circuit,¹¹⁴ and last year the Supreme Court denied a petition for review.¹¹⁵ Among the environmentalists' victories was a ruling that EPA had been overgenerous in exempting from the good engineering practice standards sources with tall stacks built between 1970 and 1979 and sources whose plumes "impact" on downwind hills. The court also ruled that EPA erred in allowing the states 22 months to adjust their SIPs instead of the nine months prescribed by § 406(d)(2) of the 1977 amendments.¹¹⁶ The result is that a significant number of large sources, particularly power plants built between 1970 and 1979, may have to take additional steps to control their sulfur dioxide emissions and the northeastern states' interstate air pollution defeats may be softened.

Federal Emission Limits

The air-quality-based programs implemented through the SIPs are the heart of the Clean Air Act's national stationary source pollution control effort, but the Act also gave EPA direct regulatory responsibility. The state implementation plans are supplemented with two types of federal emission limitations that apply uniformly across the land. Section 111 prescribes new source performance [15 ELR 10032] standards (NSPS)¹¹⁷ and § 112 national emission standards for hazardous air pollutants (NESHAPs).¹¹⁸ Responsibility for developing the standards falls exclusively to EPA. Initially, enforcement also was in the federal domain, but may be delegated to the states. In recent years, EPA has sought to delegate as much NSPS and NESHAPs authority as possible. In 1984 EPA made at least 25 delegations of authority to implement NSPS for one or more source categories, and 18 delegations of NESHAPs authority for oneor more categories.¹¹⁹

New Source Performance Standards

Section 111 of the Clean Air Act authorizes EPA to establish technology- and cost-based "standards of performance" for categories of new and modified stationary sources that significantly contribute to health- or welfare-threatening air pollution. Under the 1970 amendments, the NSPS were to be based on "the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) has been adequately demonstrated."¹²⁰ The section was amended in 1977 to require that for fossil-fuel-fired power plants, the standards had to require technological emission controls, not just the use of low-sulfur fuel.¹²¹ The change was part of a complex compromise deisnged to win the support of midwestern high-sulfur coal states for the 1977 amendments.¹²²

There are several rationales for the Act's scheme of nationally uniform standards for new sources but state-by-state standards for existing sources. First, the uniform NSPS eliminate the incentive for states to dilute their SIPs to attract new industry. Second, the distinction between new and existing sources allows the sources and standards to be adapted to each other. A state may tailor standards for existing sources to the specific technological and economic conditions affecting an industry within its borders. Builders of new sources, on the other hand, with the advantage of knowing the NSPS in advance, can tailor their plants to the standards. Third, significant efficiency results from requiring only one agency to develop advanced understanding of pollution control instead of 50. And once EPA has developed the NSPS, states may use them as reference points in designing their SIPs.

The 1970 amendments directed EPA to list industry categories for which NSPS were needed and to propose NSPS for each listed category within 120 days. Congress strongly suggested 19 categories with which EPA was to start.¹²³ The 1977 amendments directed EPA to identify appropriate categories of sources that it had not yet listed and to promulgate NSPS for them in thirds, with deadlines of two, three, and four years.The Act also directs EPA to review the NSPS periodically and to update them to reflect advances in pollution control technology.

The expansion and review of the NSPS is a significant ongoing activity. During 1984, ELR Recent Developments reported proposals for new or revised NSPS for seven industry categories,¹²⁴ along with final action on new or revised standards for six categories.¹²⁵ In addition, EPA announced that it had reviewed existing NSPS for four categories and decided not to revise them.¹²⁶

The most important NSPS-in-progress is for industrial, commercial, and institutional boilers, the source of substantial amounts of sulfur dioxide and particulate pollution across the nation. This NSPS is the subject of an unresolved lawsuit. In Sierra Club v. Ruckelshaus,¹²⁷ plaintiffs seek to force EPA to promulgate standards. They allege that since EPA listed the category in 1979, it badly missed its statutory deadline for action. The importance of the category and the difficulty in regulating it stem from its size. Tens of thousands of factories, schools, and office complexes use medium-sized boilers for heating or process steam. In the aggregate they generate enormous quantities of particulate and sulfur dioxide pollution, but SIP regulation is uneven. New or rebuilt boilers at existing facilities may easily escape new source review because of netting. The NSPS could effect a significant improvement in emission control from this large category, but at substantial implementation cost.

National Emission Standards for Hazardous Air Pollutants

Section 112 of the Clean Air Act authorizes EPA to designate air pollutants, other than criteria pollutants, that may "reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." EPA must propose "emission limitations" for such pollutants within 180 days of listing them, and, within another 180 days, promulgate final standards, unless it "finds, on the basis of information presented" at hearings on the proposals, that the [15 ELR 10033] pollutant is clearly not hazardous.¹²⁸ The emission limits must eliminate any health risk with a margin of safety, regardless of the cost of compliance. In 1977 Congress amended § 112, allowing EPA to set work-practice or similar requirements instead of emission limitations where the latter were not feasible.¹²⁹

As of the end of 1983, EPA had listed seven hazardous air pollutants and promulgated four NESHAPs.¹³⁰ An important reason for the limited activity is that once EPA lists a pollutant as hazardous, it must set very stringent standards very quickly. Yet, because our knowledge of many potentially hazardous pollutants is limited and not easily expanded, EPA must make listing decisions in the face of uncertainty about the nature and extent of the health risk being avoided. Not listing a pollutant subjects the public to an uncertain risk; listing puts EPA, like a runaway locomotive, on an uncontrollable path towards imposing potentially draconian measures on industry.

Section 112 has been controversial.¹³¹ EPA has been sued for failure to promulgate standards for listed pollutants on several occasions.¹³² In 1977 Congress apparenttly felt that EPA has lagged in extending the scope of § 112 and added a new § 122 to the Act, requiring EPA to evaluate the health impacts of airborne radionuclides, cadmium, arsenic, and polycyclic organic matter (POM) within fixed periods of time and, upon finding harmful impacts, to move to regulate the pollutants through the NAAQS or NESHAPs process.¹³³

In 1984 EPA took some action to bring additional pollutants into the NESHAPs scheme, but also cut back on earlier proposals and decided not to regulate some candidate pollutants at all on the basis of risk assessments, whose very application to the subject was extremely controversial.¹³⁴ EPA listed coke oven emissions under § 112, completing a long and controversial study.¹³⁵ On the other hand, the Agency decided not to regulate POM upon completion of its § 122 inquity.¹³⁶ It decided not to regulate toluene¹³⁷ and withdrew proposed regulations for several categories of sources of benzene¹³⁸ and radionuclide emissions.¹³⁹

Environmental groups responded to the decisions not to regulate with two lawsuits. One, Natural Resources Defense Council, Inc. v. Alm,¹⁴⁰ is currently challenging the decision not to regulate POM. The other suit, Sierra Club v. Ruckelshaus, concerns radionuclides and has a long and complicated history.¹⁴¹

Sierra Club illustrates the difficulty that EPA has had in developing § 112 standard and that citizens have had in enforcing the nondiscretionary requirements of the section. In 1982 a federal district judge, acting on a citizen suit brought by the Sierra Club, ordered EPA to propose NESHAPs for four categories of sources of radionuclides, because EPA had listed the pollutant as hazardous and had far overrum the statutory deadline for action.¹⁴² EPA proposed standards,¹⁴³ but did not move to make them final, so the Sierra Club filed a new suit. The same court ordered EPA either to promulgate final standards or to determine that radionuclides are not hazardous on the basis of the record established in the hearing on the proposed rules.¹⁴⁴ EPA decided to follow a third course that was consistent with its longstanding interpretation of § 112; it withdrew proposed rules for three of four categories on the basis of its conclusion that the record was inadequate to show that the rules were needed.¹⁴⁵ The court ruled that the statute did not give EPA this option, and finding that it had clearly rejected EPA's interpretation in its earlier ruling, held the Agency and Administrator Ruckelshaus in contempt, ordering them to promulgate all four categorical standards within 90 days.¹⁴⁶ EPA finally and somewhat grudgingly complied.¹⁴⁷

These cases illustrate that with a cautious EPA, § 112 will not produce expanded regulation of hazardous air pollutants in the near future. The only new activity is on pollutants listed before the current Administration took office, and this Administration seems unwilling to accept § 122's invitation to add to the list unless risk assessment identifies a fairly serious health hazard to which relatively large numbers of people are exposed. In this atmosphere, the only thing that will expand hazardous air pollutant regulation beyond the small becklog of listed, but unregulated, pollutants is investment in research to better delineate the risks of such substances. Absent such research, there will be little action, because EPA has shifted the burden of proof to proponents of regulation.

Enforcement

The elaborate system oif state implementation plans, federal new source review programs, and federal emission limitations that makes up the Clean Air Act's substantive [15 ELR 10034] agenda for stationary source pollution control is meaningless without enforcement. Much of the effort that goes into designing these complex programs is intended simply to make the requirements enforceable. Enforcement is the engine that drives the entire complicated Clean Air Act machine.

The enforcement component of the Act has five elements. The first is institutional responsibility for enforcement, which the Clean Air Act splits among EPA, the states, and private citizens. The second element is the legal requirements to be enforced.The Clean Air Act goes to great lengths to devise legal requirements that will be easy to enforce. Third is investigatory authority. The Act provides broad authority to investigate and document possible violations of its provisions.Fourth is the process by which enforcers choose their responses once violations have been detected. The Clean Air Act leaves EPA considerable flexibility in this area of traditionally broad "prosecutorial discretion," but imposes some constraints not common in other law enforcement fields. The fifth element of enforcement is imposition of sanctions on appropriate violators. Each element of enforcement is discussed below.

Institutions

Congress clearly did not believe the adage that too many cooks spoil the broth in the enforcement kitchen; the Clean Air Act makes it possible for almost anyone to be an enforcement chef, whether private citizen or state or federal official. State implementation plans, NSPS, and NESHAPs all may be enforced by states, EPA, and private citizens.¹⁴⁸

In this system of overlapping enforcement responsibility, federal enforcement plays a key role. States may need EPA's help in large and complex enforcement actions, because the federal agency has more technical and legal resources available. States may not always be willing or able to enforce against all violators; if not, Congress intended EPA or citizens to step in to fill the gaps. And EPA enforcement can provide a measure of national uniformity in this final phase of implementation.

In recent years critics have challenged the overall level of EPA stationary source enforcement activity.¹⁴⁹ Reference to two indicators — the number of cases referred to EPA headquarters for consideration of litigation and the number of cases referred to the Department of Justice for initiation of litigation — show that activity did slack off in 1981-1983, but picked up again in 1984.¹⁵⁰ The budget of the enforcement office is another indicator of the level of federal enforcement effort. The proposed fiscal year (FY) 1986 budget for stationary source enforcement, as compared to FY 1985, provides for a slight decrease in the level of expenditure ($0.1 million, to $14.5 million) and continuation of the staff commitment (313 workyears).¹⁵¹ The level of air enforcement expenditure was cut dramatically in the early 1980s and now is relatively steady at 1975 levels.¹⁵² For EPA to maintain a referral level it achieved at a time when its air enforcement budget was roughly double its current size suggests that other types of enforcement activity, most likely administrative actions, must have diminished.

Citizen enforcement also could play an important role under the Clean Air Act. Congress authorized private citizens (and the states) to bring suits in federal court to enforce the statute.¹⁵³ Citizen enforces must notify the violator and EPA of their intent to sue, and must give way before diligently prosecuted federal or state actions, although they may intervene in such actions. The remedies available to these private attorneys general are limited: they may seek injunctive relief, but not penalities.¹⁵⁴ Even with somewhat limited powers, citizen enforcement could be an effective supplement to or replacement for government action, particularly in an era of declining government enforcement budgets.

Citizen enforcement of the pollution control statutes took on a high profile in 1984, but not under the Clean Air Act. A coalition of environmental groups led by NRDC launched a coordinated wave of hundreds of suits to enforce the Federal Water Pollution Control Act (FWPCA).¹⁵⁵ The citizen suit provisions of the Clean Air Act have seen much less use.A recent ELI study of citizen enforcement identified 57 Clean Air Act citizen suit enforcement notices issued between January, 1978 and April, 1984.¹⁵⁶ Only four notices were filed in 1983 and the first quarter of 1984, however. The failure of an ambitious air enforcement drive launched by the Sierra Club in 1979 may have been an influence in discouraging recent citizen enforcement actions under the Air Act.¹⁵⁷ [15 ELR 10035] Citizen plaintiffs did achieve some or all of their goals in some of the Air Act cases studied by ELI, however. Of 25 actions that resulted in concluded lawsuits, defendants won judgments in nine, but plaintiffs won in three and 11 were settled (presumably giving plaintiffs something of what they sought).¹⁵⁸

Perhaps the most effective role for citizen enforcers under the Clean Air Act in recent months has been as intervenors in federal actions. The Act guarantees the right of intervention to interested persons, and citizens groups have used that right to participate in and help shape federal enforcement actions in several recent instances.¹⁵⁹ Citizens may intervene in actions in which the parties have agreed upon proposed consent decrees.¹⁶⁰ Beyond this kind of activity, however, it seems unlikely that there will be frequent citizen enforcement of the Clean Air Act unless EPA expands self-monitoring and reporting requirements.

Enforceable Requirements

The Act was designed to make enforcement relatively easy. The regulatory process is segmented so that challenges to the substance of emission control requiremets must be resolved before enforcement begins and cannot be resurrected in enforcement actions.¹⁶¹ The SIPs and national emission limits produce specific, measurable pollution control requirements for individual emission points, thus reducing or eliminating ambiguity over who must do what to comply with the law. Statutory compliance and attainment deadlines provide unambiguous answers to the question of when compliance is required. In this framework, it should be relatively easy to determine whether a violation exists and to bring an action to correct violations found.

Congress' neat scheme to ensure relatively easy enforcement is tested in SIP enforcement. The federal and state legal systems do not always mesh as well as intended to produce a single federal/state SIP for both parties to enforce. It now seems well established that EPA may not enforce a state SIP provision that was invalid under state law when EPA approved it.¹⁶² Such loopholes may persist for a long time because of delays in resolving the validity of the state provision in state courts and EPA's reluctance to step in and promulgate a replacement SIP.

If EPA approved a valid state program, it remains federally enforceable until revised by EPA, even while a state-approved revision awaits EPA approval. While EPA's enforcement authority is legally clear in such cases, the disparity between state and federal SIPs can confuse and delay the enforcement process. Two recent cases illustrate these points. In United States v. National Steel Corp.,¹⁶³ the district court ruled that EPA could enforce a stipulated penalty provision in a consent decree concerning a SIP violation, even though the state had approved defendant's plan nto use the bubble policy to fashion a compliance plan different from that spelled out in the decree. Since EPA had not approved the SIP revision, it could enforce the earlier version that it had approved. In United States v. Continental Group, U.S.A.,¹⁶⁴ a district court ruled that a pending application for state approval of an alternative compliance plan does not require the court to abstain from hearing EPA's suit to enforce the federally approved version of the SIP, particularly where the state has moved very slowly to act on the alternative plan. Thus, EPA can enforce its SIP during the pendency of a state SIP revision, but the question of which SIP is enforceable throws another issue onto the table and may delay the enforcement process.

Investigatory Authority

On its face, § 114 of the Clean Air Act¹⁶⁵ gives EPA broad investigatory authority, but its language is susceptible to varying interpretations on several key points. Paragraph (1) of § 114(a) authorizes EPA to require owners and operators of emission sources and others "subject to any requirement of" the Act to keep records, make reports, and sample emissions. Paragraph (2) of § 114(a) gives the EPA administrator and "his authorized representative" authority to enter the premises of those persons identified in paragraph (1) or other places where required records are kept, and states the inspectors "may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1) and sample any emissions which such person is required to sample under paragraph (1)." Both types of investigations also must be in furtherance of EPA's regulatory or enforcement responsibilities and reasonable.¹⁶⁶ Section 114 provides that all information obtained by EPA under the section must be available to the public, unless the source of the information domonstrates that it should be held confidential to protect trade secrets; emission data may not be protected.¹⁶⁷

Section 114 has not been heavily litigated over the years, but there have been a number of important decisions construing its provisions, particularly in the last year. The First Circuit upheld the constitutionality of § 114 in 1978.¹⁶⁸ A decision of the Supreme Court concerning [15 ELR 10036] administrative inspections under the Occupational Safety and Health Act¹⁶⁹ has been read to require EPA to obtain warrants for inspections under § 114 absent permission.¹⁷⁰ In 1984 the courts handed down five important decisions, for the most part upholding EPA's relatively broad reading of the section.

The Seventh Circuit confronted the question of from whom EPA may seek information under § 114, and in Ced's Inc. v. United States Environmental Protection Agency,¹⁷¹ concluded that the person need not be directly regulated to be "subject to" the Act's requirements. The court ruled that a manufacturer of unregulated auto parts could be inspected under § 114. The fact that the parts could be used to evade auto emission control requirements in violation of § 203(a)(3)(B)¹⁷² opened the company's doors to EPA inspectors.

The Sixth Circuit addressed another part of the § 114 equation — what type of surveillance may EPA use. It ruled, in Dow Chemical Co. v. United States ex rel. Burford,¹⁷³ that § 114 authorizes, and the Constitution does not bar, aerial photographic surveillance of a regulated facility. The court of appeals held that the surveillance was not a search because Dow had no reasonable expectation of privacy concerning the enclosed exterior areas of its plant, which were visible from the air, but not the ground. The court went on to state that even if the surveillance was a search, it would be reasonable under the open fields exception. Finally, it held that the grant of power in § 114 is sufficiently broad to allow EPA to use techniques like aerial surveillance that are not specifically mentioned in the statute.

On a third major question about § 114 — whether EPA may cloak private contractors in its § 114 authority — the Supreme Court heard the arguments, but gave no answer. In United States v. Stauffer Chemical Co.,¹⁷⁴ the Court reviewed a Sixth Circuit decision consisting of three overlapping opinions, two holding that the use of private contractors to conduct enforcement inspections was not authorized by § 114, and two that EPA was collaterally estopped from relitigating the issue against Stauffer. EPA had lost on the same question in a case involving Stauffer in the Tenth Circuit. The Supreme Court decided Stauffer on the estoppel question. The Court stated that it was not addressing whether EPA would be estopped from relitigating the issue with Stauffer in the Ninth Circuit, which had upheld EPA's authority to use contractors.¹⁷⁵ Thus the decision appears to preserve the diverse law of the circuits, with a twist: EPA may use contractor inspectors in the Ninth Circuit, though perhaps not against Stauffer; may not use them in the Sixth or Tenth Circuits; and in other circuits, may use them in inspecting anyonebut Stauffer.¹⁷⁶

Two recent district courts also shed light on key § 114 questions. In United States v. Harford Sands, Inc.,¹⁷⁷ the court held defendant liable for failure to perform emission tests and submit reports as ordered by EPA. Defendant's cooperation with the state, performance of the tests (without submitting the data to EPA), and lack of willfulness were irrelevant to the question of liability, the court ruled, though they might be considered in setting penalties.The decision illustrates that § 114 itself is enforceable with all the tools of the Act. Another court considered the confidentiality provision of § 114 last year. In RSR Corp. v. Environmental Protection Agency,¹⁷⁸ the court ruled that EPA was arbitrary and capricious in deciding that a description of a plant obtained through § 114 was emission data and therefore not entitled to confidentiality. The court decided that the bare assertion that the data were necessary to calculate emissions with a materials balance equation was insufficient; EPA had to explain why it could not use other methods.

Recent cases demonstrate that EPA has broad authority to obtain or demand information from private industry for use in enforcing the Clean Air act. The contractor inspection decisions and RSR suggest that courts may take a narrower view of EPA's authority when investigations threaten to disclose legitimate trade secrets, but the Agency may be quite aggressive in obtaining the information it needs to do its job.

Enforcement Decisionmaking

Enforcement decisionmaking typically is highly discretionary. Prosecutorial discretion is essential in any area where the potential enforcement workload exceeds available resources. In addition, it can serve a useful function in alleviating inequitable results of strict enforcement of a broadly applicable requirement in individual cases.

Broad prosecutorial discretion makes somewhat less sense in the context of Clean Air Act enforcement, however.¹⁷⁹ EPA is not just a direct enforcement agency; it also is an enforcement manager, responsible for ensuring effective action by 10 regional offices and the states. This demands clear policies to govern enforcement. In 1984 the Agency sought to develop for each of its programs unified guidance for the regions and states covering the selection of enforcement responses.

The air program's June, 1984 enforcement response policy¹⁸⁰ concentrates on three issues. First, it identifies [15 ELR 10037] types of violations on which EPA will concentrate its attention. Second, the policy coutlines a rough timetable by which EPA will judge the adequacy of state and regional enforcement against priority violators. Third, it describes cases in which EPA routinely will seek civil penalties. The policy is not a precise blueprint of EPA's air enforcement plans, but it does rather clearly identify the cases on which the Agency will be concentrating its limited resources.

The primary target for EPA enforcement attention is "significant violators." It is comprised of two types of violations, SIP violations by large ("Class A") sources that are located in nonattainment areas, and violations of NSPS or of PSD and Part D permit requirements.EPA will track the progress of state or federal enforcement against significant violators, and has outlined a schedule to which those actions should adhere. The key point in the schedule is 120 days after formal notification of the violation (which occurs 30 days after discovery). By that time, if a state is taking the lead, the source should at least be subject to some form of formal action. EPA cases should follow the same timetable. If states do not meet the 120-day deadline, EPA is likely to bring its own action. The enforcement response policy also requires a "cash penalty of sufficient magnitude appropriate to the violation" in civil actions against significant violators and those who violate the final deadlines in judicial or administrative compliance schedules or are repeat violators.¹⁸¹

Sanctions

The Clean Air Act gives EPA a wide and potent array of enforcement options with which to respond to violations.The Agency must start the enforcement process with a notice of violation to the state and the violator in most instances. If the violation is not corrected within 30 days, EPA may issue an administrative order or bring a civil action for injunctive relief and civil penalties of up to $25,000 per day of violation.¹⁸² For certain categories of violations, EPA may administratively impose noncompliance penalties equal to the economic benefit of delayed compliance.¹⁸³ If a violation is "knowing," EPA may seek to impose criminal sanctions including fines and jail terms.¹⁸⁴ The effectiveness of enforcement depends in significant part on the perceived likelihood that EPA will use this arsenal of sanctions in appropriate cases.

* Civil Penalties. The stationary source civil penalty policy,¹⁸⁵ which took effect in mid-October, requires EPA to seek penalties at least as large as the economic benefit of noncompliance in settling enforcement cases. Penalties are to consist of a "preliminary deterrence amount" comprised of a "benefit component" (economic benefit of delayed compliance) and a "gravity component" (reflecting the culpability of the violator or the impact of the violation on the environment).

The policy generally prohibits settling penalty actions for less than the benefit component, on the theory that that is the minimum penalty that provides deterrence. The policy does, however, specify three circumstances in which lower settlements are allowed: (1) the economic benefit is less than $5,000; (2) "compelling public concerns" dictate settlement rather than trial, such as a risk of creating bad precedent or causing extreme financial hardship to the violator; and (3) legal or litigation constraints would preclude winning the full economic benefit after trial. In addition, EPA generally will not seek to recover the economic benefit in a § 113 action if a § 120 action is in progress or completed for the same violation.¹⁸⁶ The civil penalty policy applies to initial enforcement actions, not those to enforce consent decrees, and applies only in the pre-trial phase of litigation.¹⁸⁷ EPA reports collecting major civil penalties ranging from $100,000 to $4 million in 1984.¹⁸⁸

* Section 120 Noncompliance Penalties. Section 120 of the Clean Air Act authorizes EPA to impose "noncompliance penalties" based on economic benefit of delayed compliance for a variety of substantive violations of the Clean Air Act, and to do so administratively.¹⁸⁹ The penalties are based on calculations estimating the time value of money saved by delaying capital expenditures, and the money saved by avoiding operation and maintenance costs. A source subject to § 120 must pay for the value of past noncompliance and continue to pay the penalties quarterly until it comes into compliance. The administrative process for imposing the penalties is designed to start the penalty payment process quickly, utilizing a formula for calculating economic benefit that incorporates a vasirety of assumptions and general variables. If the violator can show that its economic benefit was less than the penalties paid in certain respects, it is entitled to repayment with interest.¹⁹⁰

Originally, § 120's main job was to be the teeth in a 1979 deadline for major sources to comply with SIP provisions, which was established by the 1977 amendments. EPA did not promulgate the basic implementing regulations and appendixes spelling out the penalty-setting methodology until 1980,¹⁹¹ so the penalty program missed its own deadline.

Even after the regulations were on the books, § 120 was used sparingly. In 1982 the regulations were, for the most [15 ELR 10038] part, upheld in court¹⁹² and the program began to develop some momentum. The Agency, particularly its Region I office, began to make some use of § 120.¹⁹³ Headquarters instructed the regions to launch more § 120 actions, and the results were visible last year, with 23 new actions, more than in the three years since the regulations were promulgated.¹⁹⁴

While expanding the use of § 120, EPA also is still tinkering with the methodology for calculating economic benefit. Seemingly innocuous changes in a single variable in the equation can dramatically change the penalty calculated. EPA has proposed several changes in the methodology this year, as well as other interpretations of the scope of § 120.¹⁹⁵ A dispute over whether the general model for economic benefit from noncompliance applies to public utilities continues as well.¹⁹⁶

* Criminal Penalties. Starting in about 1979, EPA and the Justice Department began to talk about expanding use of criminal sanctions in environmental enforcement. The process survived the change of administrations and criminal enforcement now appears to be a significant component in the overall enforcement program. EPA has some 20 trained criminal investigators, who are authorized to carry firearms, spread among the regional offices. The Land and Natural Resources Division of the Justice Department has a group of attorneys assigned solely to criminal matters.

To date there has been little criminal enforcement activity under the Clean Air Act; EPA has focused its attention more on hazardous waste cases. Apparently there has only been one indictment: United States v. M.A. Segale, Inc.,¹⁹⁷ which included four counts for knowing violations oif NSPS. It is likely that with criminal investigators in the regional offices there will be more indictments under the Air Act.

Conclusion

The Clean Air Act may be overdue for an overhaul, but it is not sitting idle in the garage. Quietly, while hazardous waste hogs the spotlight, EPA has stripped down the massive regulatory juggernaut designed by Congress in 1970 and 1977 into an efficient, unpretentious runabout. As a result of EPA's extensive administrative redesign, the Clean Air Act is not likely to venture on high stakes journeys fraught with uncertainty, like acid rain abatement or expansion of the moribund hazardous air pollutant program. Indeed, far from expanding its carrying capacity, EPA has cut back on the federal administrative load by delegating implementation responsibility to the states wherever possible. EPA will not use its federal SIP authority to force stalled state SIPs off the road, but will try to nudge them forward. EPA will not let citizens groups in the driver's seat without a fight, and it will even risk contempt of court to squelch unwanted citizen suit regulatory initiatives.

On the other hand, EPA is keeping the machine in working order despite severe budgetary pressures and enormous legal potholes. It is carrying out its diminished responsibilities with diligence. It is using its enforcement authority aggressively to maintain its visibility and its influence over state programs and the regulated community. EPA has created a viable federal Clean Air Act vehicle for the time.

That vehicle bears scant resemblance to the congressional blueprints in many respects, but until Congress can free the Act from a legislative traffic jam, it is unlikely that the resemblance will improve substantially. Indeed, EPA's revised design may be better in some respects under today's conditions. At least it addresses in a facially rational way some issues that Congress did not face in 1977, such as what to do with widespread violations of the 1982 attainment deadling. On the other hand, EPA's extreme caution in expanding regulation of hazardous air pollutants flies directly in the face of Congress' manifest desire to begin regulation of potential health threats before the risk could be quantified and shown to exceed the costs. The extent to which Congress will accept EPA's compromises remains to be seen. It could revise the blueprint to fit the vehicle, as it has done in the past.¹⁹⁸ Alternatively, it may conclude, as it did in amending the Resource Conservation and Recovery Act in 1984,¹⁹⁹ that EPA has used too much discretion, and try to lock EPA into a more ambitious Clean Air Act design with more deadlines and more sanctions for missing them.

1. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

2. See Comment, Congress in 1984: A Mixed Bag, 14 ELR 10449, 10451 (Dec. 1984).

3. Remarks by Frank Friedman, ALI/ABA Conference on Environmental Law, Clean Air Act Panel (Feb. 15, 1985). (In response to a question about the likelihood of amendments in the near future, Mr. Friedman, Vice President of Occidental Petroleum for Health, Environment, and Safety, and a leading expert on the Clean Air Act, opined that Congress would probably not act until the 1987 deadlines began to "bite".)

4. The law governing hazardous waste management and cleanup is a compelling subject today. See, e.g., Rosbe & Gulley, The Hazardous and Solid Wate Amendments of 1984: A Dramatic Overhaul of the Way America Manages Its Hazardous Wastes, 14 ELR 10458 (Dec. 1984).

5. The Act has essentially separate programs for stationary sources — Subchapter I, §§ 101-178, 42 U.S.C. §§ 7401-7508, ELR STAT. 42205 — and moving sources — Subchapter II, §§ 202-234, 42 U.S.C. §§ 7521-7574, ELR STAT. 42240.

6. See T. Jorling, The Federal Law of Air Pollution Control in FEDERAL ENVIRONMENTAL LAW 1058, 1068 (1974) for a discussion of the 1967 amendments' role in the air quality standards process.

7. Section 108, 42 U.S.C. § 7408, ELR STAT. 42208.

8. Section 109, 42 U.S.C. § 7409, ELR STAT. 42209.

9. See, e.g., Lead Industries Ass'n v. Environmental Protection Agency, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980) (economic and technological feasibility need not be considered in promulgating NAAQS).

10. Section 302(h), 42 U.S.C. § 7602(h), ELR STAT. 42255.

11. EPA initially promulgated air quality standards for six pollutants for which criteria had been published: sulfur dioxide, particulates, carbon monoxide, photochemical exidants, hydrocarbons, and nitrogen dioxide. 36 Fed. Reg. 22384 (Nov. 25, 1971) (codified as amended at 40 C.F.R. pt. 50). EPA promulgated lead standards in 1978, 43 Fed. Reg. 46246 (Oct. 5, 1978), after having listed lead as a criteria pollutant in response to a lawsuit, Natural Resources Defense Council, Inc. v. Train, 411 F. Supp. 864, 6 ELR 20366 (S.D.N.Y. 1976). In 1979 EPA revised the photochemical oxidant standard and redesignated the criteria pollutant ozone. 44 Fed. Reg. 8202 (Feb. 8, 1979). EPA rescinded the hydrocarbon standard in 1983, 48 Fed. Reg. 628 (Jan. 5, 1983), because it concluded that the pollutant does not directly affect human health and that its contribution to smog is fully regulated by the ozone NAAQS.

12. See infra text accompanying notes 20-60.

13. Section 109(d), 42 U.S.C. § 7409(d), ELR STAT. 42210.

14. 49 Fed. Reg. 10408 (Mar. 20, 1984).

15. The comment period was extended three times in 1984: 49 Fed. Reg. 22109 (May 25, 1984); 49 Fed. Reg. 35029 (Sept. 15, 1984); and 49 Fed. Reg. 45871 (Nov. 21, 1984). The last extension runs until 60 days after EPA proposes rules governing state implementation plans for particulates.

16. 49 Fed. Reg. 10408, 10419 (Mar. 20, 1984).

17. 49 Fed. Reg. 6866 (Feb. 23, 1984).

18. 49 Fed. Reg. 22021 (May 24, 1984).

19. See 49 Fed. Reg. 29845 (July 24, 1984). The Clean Air Scientific Advisory Committee will meet on March 4-6, 1985, 50 Fed. Reg. 6049 (Feb. 13, 1985).

20. Section 110(a)(2)(A), 42 U.S.C. § 7410(a)(2)(A), ELR STAT. 42210.

21. Section 110(a)(2)(B), 42 U.S.C. § 7410(a)(2)(B), ELR STAT. 42210. Emission limitations for large sources generally must ensure that emissions from a source will not cause a violation of the NAAQS on the day of the year with the second worst meteorological conditions. Answering the question of whether a particular SIP measure is an "emission limitation" within the meaning of § 110(a)(2)(B) can become quite difficult. See, e.g., Kamp v. Hernandez, 15 ELR 20126 (9th Cir. Feb. 5, 1985) ("multi-point" plan for controlling emissions from Arizona copper smelters satisfies § 110(a)(2)(B)).

22. 729 F.2d 1096, 14 ELR 20354 (6th Cir. 1984).

23. 723 F.2d 1440, 14 ELR 20328 (9th Cir. 1984).

24. Section 110(a)(2)(A).

25. Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976).

26. Section 110(a)(2), 42 U.S.C. § 7410(a)(2), ELR STAT. 42210. It is not entirely clear from the statute, but the four-month deadline apparently applies to SIP revisions as well as original submittals. See, e.g., City of Seabrook v. EPA, 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981).

27. Sections 113 and 304, 42 U.S.C. §§ 7413 and 7604, give EPA and citizens, respectively, the right to enforce against violations of an "applicable implementation plan," which § 110(d), 42 U.S.C. § 7410(d) defines as a plan approved by EPA under § 110(a) or promulgated under § 110(c), 42 U.S.C. § 7410(c), ELR STAT. 42211.

28. Section 110(c).

29. See G. WETSTONE & A. ROSENCRANZ, ACID RAIN IN EUROPE AND NORTH AMERICA 100 (1983).

30. 733 F.2d 489, 14 ELR 20506 (7th Cir. 1984).

31. 726 F.2d 356, 14 ELR 20295 (7th Cir. 1984) (EPA order affirmed), opinion vacated, reh'g granted, 14 ELR 20482 (7th Cir. Apr. 27, 1984), on reh'g, 742 F.2d 1028, 14 ELR 20740 (7th Cir. 1984) (EPA order set aside).

32. The original schedule called for SIPs to take effect in 1972, which under § 110(a)(2) meant that attainment was required by 1975. Section 110(e), 42 U.S.C. § 7410(e), ELR STAT. 42212, allowed states to obtain extensions of up to two years, so the latest date for attainment under the 1970 amendments was 1977.

33. In late 1977, of the 105 urban areas in the country with populations in excess of 200,000, only one, Honolulu, was in attainment for the oxidant standard and one, Spokane, was unclassifiable due to insufficient data. Environmental Quality, 1978 CEQ ANN. REP. 63.

34. Section 172(a), 42 U.S.C. § 7502(a), ELR STAT. 42238.

35. Section 107(d), 42 U.S.C. § 7407(d), ELR STAT. 42208.

36. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 129(a), 91 Stat. 685, 745 (1977) (codified as a note to § 172, 42 U.S.C. § 7502, ELR STAT. 42238).

37. Sections 171-178, 42 U.S.C. §§ 7501-7508, ELR STAT. 42238.

38. Section 172(b)(11)(B), 42 U.S.C. § 7502(b)(11)(B), ELR STAT. 42238.

39. Section 173, 42 U.S.C. § 7503, ELR STAT. 42239.

40. 46 Fed. Reg. 50766 (Oct. 14, 1981).

41. 685 F.2d 718, 12 ELR 20942 (1982).

42. 104 S. Ct. 2778, 14 ELR 20507 (1984).

43. Section 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I), ELR STAT. 42210 (construction ban); § 176, 42 U.S.C. § 7506, ELR STAT. 42239 (funding sanctions).

44. 467 A.2d 1108, 14 ELR 20146 (Pa. 1983).

45. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 533 F. Supp. 869, 12 ELR 20191 (E.D. Pa. 1982), aff'd, 678 F.2d 470, 12 ELR 20631 (3d Cir. 1982), cert. denied, 459 U.S. 969 (1982).

46. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 15 ELR 20202 (March) (3d Cir. Feb. 11, 1985).

47. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 15 ELR 20192 (March) (E.D. Pa. Apr. 13, 1984).

48. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 15 ELR 20202 (March) (3d Cir. Feb. 11, 1985).

49. See 44 Fed. Reg. 38473 (July 2, 1979) (announcing final approval of the Wyoming plan).

50. See 44 Fed. Reg. 38471 (July 2, 1979) (announcing conditional SIP approval policy).

51. See Comment, Circuit Courts Endorse Conditional SIP Approval; Connecticut's Construction Ban Restored, 12 ELR 10055 (1982).

52. In May of 1984, EPA announced that it had completed its review of outstanding conditions on the 1979 SIP approvals for states in its Region V. EPA proposed revoking conditions it no longer believed germane; approving new compliance dates for germane, but less serious conditions; and taking no action on serious, germane conditions. 49 Fed. Reg. 20521 (May 15, 1984). The Agency took final action on the proposal this year. 50 Fed. Reg. 5246 (Feb. 7, 1985). Note that the most serious conditions are still in limbo.

53. 44 Fed. Reg. 38471 (July 2, 1979).

54. See, e.g., City of Seabrook v. EPA, 659 F.2d 1349, 1357, 11 ELR 21058, 21061 (5th Cir. 1981) (the 1982 attainment deadline is "the heart" of the 1977 amendments, while SIP promulgation and approval deadlines are merely steps toward that "primary condition").

55. 48 Fed. Reg. 1972 (Feb. 3, 1983).

56. 49 Fed. Reg. 18827 (May 3, 1984); 49 Fed. Reg. 47488 (Dec. 5, 1984).

57. The Arizona Center for Law in the Public Interest (ACLPI) has filed a citizen suit notice under § 304 challenging EPA's failure to disapprove an allegedly inadequate SIP revision for Phoenix and promulgate a federal provision. Interview with David Baron; ACLPI attorney, in Washington, D.C. (Feb. 20, 1985).

58. ELR Recent Developments reported EPA approval of 20 SIP revisions, proposed approval of one, proposed disapproval of three, disapproval of four revisions, and decisions not to act on three revisions. The group includes revisions for individual facilities (e.g. 49 Fed. Reg. 11832 (Mar. 28, 1984) (disapproval of Michigan revision allowing "bubble" for steel mill); source categories (e.g. 49 Fed. Reg. 3437 (Jan. 26, 1984) (approval of New York revision for stationary sources of volatile organic compounds)); I&M programs (e.g. 49 Fed. Reg. 44209 (Nov. 5, 1984) (approval of New Mexico program) and 49 Fed. Reg. 35662 (Sept. 11, 1984) (proposed disapproval of Oregon program, cut off of federal funds)).

59. EPA Region IX, Memorandum on Reasonable Efforts Program (Dec. 1984) (copy on file at ELR).

60. See, e.g., 49 Fed. Reg. 37431 (Sept. 24, 1984) (proposed approval of redesignation of portions of Clark County, Indiana from primary to secondary nonattainment for particulates, and disapproval of proposed redesignation of portions of Dubois County to attainment); 49 Fed. Reg. 37753 (Sept. 26, 1984) (approval of redesignation of Pulaski County, Arkansas to attainment for ozone); 49 Fed. Reg. 41029 (Oct. 19, 1984) (approval of designation of four areas in Tennessee to attainment status).

61. The PSD program is codified in Part C of the Act, §§ 160-169, 42 U.S.C. §§ 7470-7479, ELR STAT. 42233.

62. 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam, 2 ELR 20656 (D.C. Cir. 1972), aff'd by an evenly divided court sub nom., Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

63. Section 161, 42 U.S.C. § 7471, ELR STAT. 42233.

64. The National Commission on Air Quality reported that only one area had been redesignated from Class II to Class I and none had been lowered from Class II to III. NCAQ, TO BREATHE CLEAN AIR 182-83 (1981).

65. Section 163(b), 42 U.S.C. § 7473(b), ELR STAT. 42233.

66. Section 166, 42 U.S.C. § 7476, ELR STAT. 42235.

67. Section 165, 42 U.S.C. § 7475, ELR STAT. 42234.

68. 723 F.2d 1440, 14 ELR 20328 (9th Cir. 1984).

69. Section 169A, 42 U.S.C. § 7491, ELR STAT. 42237.

70. Section 169A(b), 42 U.S.C. § 7491(b), ELR STAT. 42237.

71. 45 Fed. Reg. 80084 (Dec. 2, 1980).

72. EDF v. Gorsuch, No. C-82-6850 (N.D. Cal. complaint filed Dec. 20, 1982); settlement announced, 49 Fed. Reg. 20647 (May 16, 1984).

73. 49 Fed. Reg. 42670 (Oct. 23, 1984).

74. See T. Jorling, The Federal Law of Air Pollution Control, in FEDERAL ENVIRONMENTAL LAW 1058, 1098 (1974).

75. 42 U.S.C. § 7410(a)(2)(E), ELR STAT. 42211; 42 U.S.C. § 7426, ELR STAT. 42229.

76. 42 U.S.C. § 7415, ELR STAT. 42219.

77. Indeed, it was possible to see the weaknesses of these provisions before they were utilized. See, e.g., G. Wetstone, Air Pollution Control Laws in North America and the Problem of Acid Rain and Snow, 10 ELR 50001 (1980).

78. See G. WETSTONE & A. ROSENCRANZ, supra note 29.

79. Connecticut v. EPA, 696 F.2d 147, 13 ELR 20135 (2d Cir. 1982); Connecticut Fund for the Env't, Inc. v. EPA, 696 F.2d 169, 13 ELR 20146 (2d Cir. 1982); Connecticut Fund for the Env't, Inc. v. EPA, 696 F.2d 179, 13 ELR 20151 (2d Cir. 1982).

80. For an analysis of the three decisions, see Comment, Court Upholds States' Relaxation of SO[2] Controls: Interstate Impacts, Sulfate Pollution Allowable, 13 ELR 10036 (1983).

81. New York v. EPA, 716 F.2d 440, 13 ELR 20807 (7th Cir. 1983) (relaxation of Illinois SIP for sulfur dioxide without consideration of effects on air quality in New York does not violate Clean Air Act); New York v. Administrator, EPA, 710 F.2d 1200, 13 ELR 20636 (6th Cir. 1983) (EPA properly approved relaxation of Tennessee SIP for one power plant's sulfur dioxide emissions without considering the impacts on sulfur dioxide or sulfate pollution in New York).

82. 46 Fed. Reg. 38937 (July 30, 1981). The guidance indicated that § 126 petitions should identify precisely the nonattainment or PSD area allegedly affected by interstate pollution, demonstrate that interstate pollution prevents attainment or maintenance of the NAAQS or interfers with PSD measures, and evidence that instate sources affecting the target areas are adequately controlled.

83. 14 ELR 20875 (D.D.C. Oct. 5, 1984).

84. EPA proposed denial of the petitions at 49 Fed. Reg. 34851 (Sept., 4, 1984) and made it final at 49 Fed. Reg. 48152 (Dec. 10, 1984).

85. Id.

86. 739 F.2d 1071, 14 ELR 20573 (6th Cir. 1984).

87. 49 Fed. Reg. 40424 (Oct. 16, 1984). Jefferson County might not have to wait for a PSD permit application to invoke § 126; see Connecticut v. EPA, 696 F.2d 147, 167, 13 ELR 20135, 20145 (2d Cir. 1982).

88. See, e.g., F. ANDERSON, A. KNEESE, P. REED, S. TAYLOR, R. STEVENSON, ENVIRONMENTAL IMPROVEMENT THROUGH ECONOMIC INCENTIVES (1977).

89. This assumes the emissions involved are equivalent in terms of their impact on the environment and public health. For example, hydrocarbon emissions contribute to smog, which is formed through complex photochemical reactions in the atmosphere. Some hydrocarbons are more photochemically reactive than others. There would be hidden costs in trading increases in emissions of hydrocarbons that are strong contributors to smog for decreases in emissions of others that contribute less.

90. See supra text accompanying note 39. The various applications of the bubble concept have been covered extensively in ELR. For a recent review of the regulatory developments, see Rhinelander, The Proper Place for the Bubble Concept Under the Clean Air Act, 13 ELR 10406 (1983). R. LIROFF, THE BUBBLE POLICY AND EMISSIONS TRADING: THE TOIL AND TROUBLE OF REGULATORY REFORM (1985, forthcoming), an excellent detailed history and analysis of emission trading, will be available later this year from the Conservation Foundation.

91. Banking allows emission reductions beyond those required by law that are made today to be "saved" for use in trades tomorrow (or several years hence). By generating an immediate supply of emission reductions that may be traded, banking is intended to stimulate the development of an active market in emission trades.

92. 41 Fed. Reg. 55524 (Dec. 21, 1976). The administrative "Offset Ruling" was the basis for the Part D requirement enacted in 1977.

93. ASARCO, Inc. v. EPA, 578 F.2d 319, 8 ELR 20164, 20277 (D.C. Cir. 1978). See infra note 117 and accompanying text for a description of the NSPS program.

94. Alabama Power Co. v. Costle, 636 F.2d 323, 10 ELR 20001 (D.C. Cir. 1979).

95. 46 Fed. Reg. 50766 (Oct. 14, 1981).

96. 685 F.2d 718, 12 ELR 20942 (D.C. Cir. 1982). For an analysis of the decision, see Comment, NRDC v. Gorsuch: D.C. Circuit Bursts EPA's Nonattainment Area Rubble, 12 ELR 10089 (1982).

97. 44 Fed. Reg. 71780 (Dec. 11, 1979).

98. See Rhinelander, supra, note 90.

99. See Comment, EPA Approves New Jersey Generic Bubble Rule, Develops Consolidated Guidance for Controlled Trading Program, 11 ELR 10119 (1981).

100. See Rhinelander, supra, note 90.

101. EPA, Emissions Trading Status Report (Oct. 1, 1984).

102. 14 ELR 20481 (E.D. Mich. May 23, 1983).

103. National Steel has appealed the decision to the Sixth Circuit. See ELR PEND. LIT. 65821.

104. 49 Fed. Reg. 11832 (Mar. 28, 1984).

105. See also 49 Fed. Reg. 48542 (Dec. 13, 1984)(EPA disapproval of a proposed Ohio SIP revision allowing B.F. Goodrich to utilize a bubble).

106. 47 Fed. Reg. 15075, 12 ELR 30006 (Apr. 7, 1982).

107. Petition for rulemaking to amend 60 C.F.R. subpt. B, submitted by Central Illinois Public Service Co. to EPA (Oct. 1, 1982).

108. 104 S. Ct. 2778, 14 ELR 20507 (1984).

109. For an analysis of the decision and the extent to which it is likely to expand use of the bubble concept, see Comment, Three Strikes and the Umpire Is Out: The Supreme Court Throws the D.C. Circuit Out of the Bubble Review Game, 14 ELR 10338 (Sept. 1984).

110. 50 Fed. Reg. 3688 (Jan. 25, 1985).

111. Alm Forges Compromise on CAA Trading Plan in SIP-less Nonattainment Areas, INSIDE EPA, Nov. 30, 1984, at 3.

112. Id.

113. 42 U.S.C. § 7423, ELR STAT. 42228.

114. Sierra Club v. EPA, 719 F.2d 436, 13 ELR 21001 (D.C. Cir. 1983).

115. Alabama Power Co. v. Sierra Club, No. 83-1429, 14 ELR 10281, 52 U.S.L.W. 3928, 3929 (U.S. July 2, 1984).

116. Pub. L. No. 95-95 § 406(d)(2), 91 Stat. 795 (1977).

117. 42 U.S.C. § 7411, ELR STAT. 42213.

118. 42 U.S.C. § 7412, ELR STAT. 42215.

119. These figures are compiled from ELR Recent Developments reporting on 1984 Federal Register publications. See, e.g., 49 Fed. Reg. 28708, 28715 (July 31, 1984) (EPA delegation of authority to Indiana, Michigan, Minnesota, Ohio, and Wisconsin to implement and enforce the NSPS and NESHAPs).

120. Section 111(a)(1), 42 U.S.C. § 7411(a)(1), ELR STAT. 42213.

121. Section 111(a)(1)(A), 42 U.S.C. § 7411(a)(1)(A), ELR STAT. 42213.

122. See Sierra Club v. Costle, 657 F.2d 298, 11 ELR 20455 (D.C. Cir. 1981) (upholding the NSPS for coal-fired power plants and discussing the origin of the amendments in some detail).

123. The Senate Public Works Committee listed the categories in its report on the amendments. See S. REP. No. 91-91-1196, 91st Cong., 1st Sess. 16(1970).

124. See 49 Fed. Reg. 2058 (Jan. 17, 1984) (fluid catalytic crackers); 49 Fed. Reg. 2448 (Jan. 19, 1984) (kraft pulp mill — changes proposed); 49 Fed. Reg. 35156 (Sept. 6, 1984); 49 Fed. Reg. 2636, 56 (Jan. 20, 1984) (onshore natural gas processing facilities); 49 Fed. Reg. 4590 (Feb. 7, 1984) (wool fiberglas insulation); 49 Fed. Reg. 6458 (Feb. 21, 1984) (metallic mineral processing); 49 Fed. Reg. 25102, 52, 56 (June 19, 1984) (industrial, commercial, institutional steam generating units — comment period extended 49 Fed. Reg. 30337 (July 20, 1984)); 49 Fed. Reg. 29698 (July 23, 1984)(volatile organic liquid storage tanks).

125. See 49 Fed. Reg. 13646 (Apr. 5, 1984) (synthetic fiber production facilities); 49 Fed. Reg. 18076 (Apr. 26, 1984) (lime manufacturing); 49 Fed. Reg. 22598 (May 30, 1984) (equipment leaks of volatile organic compounds in petroleum refineries); 49 Fed. Reg. 30672 (July 31, 1984) (gas turbines); 49 Fed. Reg. 26884 (June 29, 1984) (flexible vinyl unrethane coating and printing); 49 Fed. Reg. 41030 (Oct. 19, 1984) (glass manufacturing); 49 Fed. Reg. 43934 (Oct. 31, 1984) (electric arc furnaces).

126. See 49 Fed. Reg. 8572 (Mar. 7, 1984) (primary copper smelters); 49 Fed. Reg. 11750 (Mar. 27, 1984); 49 Fed. Reg. 13654 (Apr. 5, 1984) (nitric acid plants); 49 Fed. Reg. 21864 (May 23, 1984) (secondary brass and bronze smelters).

127. No. 84-0325, ELR PEND. LIT. 65819 (D.D.C. complaint filed Jan. 31, 1984).

128. Section 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B), ELR STAT. 42215.

129. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 8 ELR 20171 (1978) (hazardous air pollutant standards promulgated prior to the 1977 Amendments are void unless expressed as quantitative emission limits; work practice standards predating the Amendments are invalid).

130. Environmental Quality, 1983 CEQ ANN. REP. 35. The listed pollutants were asbestos, benzene, beryllium, inorganic arsenic, mercury, radionuclides, and vinyl chloride. The promuglated standards cover asbestos beryllium, mercury, and vinyl chloride.

131. See, e.g., Ruckelshaus, Risk in a Free Sociey, 14 ELR 10190 (May 1984), and Doniger, The Gospel of Risk Management: Should We Be Converted?, 14 ELR 10222 (June 1984).

132. See, e.g., Sierra Club v. Gorsuch, 12 ELR 20457 (N.D. Cal. Mar. 8, 1982), mandatory injunction issued, 551 F. Supp. 785, 13 ELR 20231 (N.D. Cal. 1983) (radionuclides).

133. 42 U.S.C. § 7422, ELR STAT. 42228.

134. See supra note 131.

135. 49 Fed. Reg. 36560 (Oct. 31, 1984).

136. 49 Fed. Reg. 31680 (Aug. 8, 1984).

137. 49 Fed. Reg. 22195 (May 25, 1984).

138. 49 Fed. Reg. 23478, 23498, 23522, 23558 (June 6, 1984).

139. 40 Fed. Reg. 43906 (Oct. 31, 1984).

140. No. 84-1472, ELR PEND. LIT. 65834 (D.C. Cir. petition filed Sept. 18, 1984); No. 84-1473, ELR PEND. LIT. 65834 (D.C. Cir. petition filed Sept. 18, 1984).

141. See Sierra Club v. Gorsuch, 551 F. Supp. 785, 13 ELR 20231 (N.D. Cal. 1982).

142. Id.

143. 48 Fed. Reg. 15076 (Apr. 6, 1983).

144. Sierra Club v. Ruckelshaus, 15 ELR 20080 (N.D. Cal. July 25, 1984), amended 15 ELR 20082 (N.D. Cal. Sept. 17, 1984).

145. 49 Fed. Reg. 43906 (Oct. 21, 1984).

146. Sierra Club v. Ruckelshaus, 15 ELR 20101 (N.D. Cal. Dec. 11, 1984).

147. 50 Fed. Reg. 5190 (Feb. 6, 1985). The promulgation notice indicated that the action was in response to the court's most recent decision, and that EPA is appealing the decision.

148. See supra note 27.

149. See, e.g., W. Drayton, AMERICA'S TOXIC PROTECTION GAP at 29-31 (1984) (citing a 75 percent rate of noncompliance with SIP opacity standards at facilities inspected at night in a test of a new laser-radar device for measuring opacity and a 50 percent drop in the number of referrals to the Department of Justice under the Act).

150. During fiscal years (FY) 1978-80, EPA averaged 100 air act referrals to headquarters and 83 to Justice. In FY 1981-83, the comparable numbers were 48 and 50. EPA data, cited in ELI, Citizen Suits III-24, -27 (1984). In the first half of FY 1984, there were 48 referrals to headquarters and 50 to Justice, suggesting that EPA is now equalling or exceeding its pre-Reagan Administration enforcement litigation rates. Id. The Air Enforcement Division reportedly "managed a docket of approximately 100 civil enforcement cases" in FY 1984, so the rate of referrals is staying up. EPA Air Enforcement Division, FY 1984 Air Enforcement Highlights (undated, copy on file at ELR) (hereinafter cited as Enforcement Highlights). The earlier decline in enforcement litigation was outpaced by an even greater decline in administrative enforcement. Air enforcement orders declined from an average of 170 per year in FY 1979-80 to 65 in FY 1981 and 21 in FY 1982. ELI, Citizen Suits III-32 (1984).

151. EPA, Summary of the 1986 Budget 22 (Jan. 1985).

152. CONGRESSIONAL BUDGET OFFICE, THE BUDGET OF THE ENVIRONMENTAL PROTECTION AGENCY: AN OVERVIEW OF SELECTED PROPOSALS FOR 1985, AT 84 (1984).

153. See supra note 27.

154. Compare Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365, ELR STAT. 42147 (authorizing collection of civil penalties in citizen enforcement actions).

155. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101. For a description and analysis of this citizen enforcement campaign, see ELI, Citizen Suits (1984).

156. ELI, Citizen Suits III-22 (1984).

157. See Sierra Club v. Indiana-Kentucky Electric Corp., 11 ELR 21100 (S.D. Ind. Apr. 20, 1981), aff'd 13 ELR 20817 (7th Cir. Aug. 30, 1983) (dismissing one of four actions to enforce the sulful dioxide restrictions in the Indiana SIP on the grounds that since the provision had been invalid under state law when promulgated by EPA there was no federal SIP provision for Sierra Club to enforce. The four actions represented the best cases the Club found out of some 20 citizen suit notices it filed concerning power plant SIP compliance.)

158. ELI, Citizen Suits III-21 (1984). These cases were resolved in some other way.

159. See, e.g., U.S. v. National Steel Corp., 14 ELR 20481 (E.D. Mich. May 23, 1983).

160. In the past, citizens had a difficult time becoming involved at this stage of enforcement actions, because if often was difficult to learn that a consent agreement had been reached until after a court made it final. Now the Department of Justice publishes notices of enforcement consent decrees in the Federal Register. See, e.g., 50 Fed. Reg. 3424, 3425 (Jan. 24, 1985) (Department of Justice announces proposed consent decrees in United States v. American Cyanamid Co. and United States v. Clark.)

161. See, e.g., United States v. Borden, Inc. 572 F. Supp. 6814, 14 ELR 20160 (D. Mass. 1984) (defendant may not challenge the substance of NESHAPs for vinyl chloride in an EPA action to enforce the standards).

162. See, e.g., Sierra Club v. Indiana-Kentucky Electric Corp., 11 ELR 21100 (S.D. Ind. Apr. 20, 1981), aff'd 13 ELR 20817 (7th Cir. Aug. 30, 1983).

163. 14 ELR 20481 (E.D. Mich. May 23, 1983), appeal docketed ELR PEND. LIT. 65821 (6th Cir. 1984).

164. 595 F. Supp. 1021, 15 ELR 20131 (E.D. Wis. Oct. 17, 1984).

165. 42 U.S.C. § 7414, ELR STAT. 42219.

166. Clean Air Act § 114(a), 42 U.S.C. § 7414(a), ELR STAT. 42219 specifies the purposes for which EPA may use its investigatory authority. The Fourth Amendment imposes the reasonableness requirement. See, e.g., Dow Chemical Co. v. U.S. ex rel. Burford, 749 F.2d 307, 14 ELR 20858 (6th Cir. 1984).

167. Section 114(b), 42 U.S.C. § 7414(b), ELR STAT. 42219.

168. U.S. v. Tivian Laboratories, Inc., 589 F.2d 49, 9 ELR 20008 (1st Cir. 1978), cert. denied, 442 U.S. 942 (1979).

169. Marshall v. Barlow's, Inc., 436 U.S. 307, 8 ELR 20434 (1978). The Court held that administrative agencies could obtain ex parte warrants if necessary to ensure that the inspectors wouldfind normal operating conditions on their arrival and that warrants may be issued without a formal showing of probable cause; the agency need only demonstrate that it wishes to inspect a facility as part of a "neutral inspection scheme."

170. See, e.g., Dow Chemical Co. v. U.S. ex rel. Burford, 749 F.2d 307, 14 ELR 20858 (6th Cir. 1984).

171. 745 F.2d 1092, 14 ELR 20869 (7th Cir. 1984), petition for cert. filed, No. 84-932, 53 U.S.L.W. 3485 (U.S. Dec. 10, 1984). The court of appeals also ruled that a reasonable EPA request to inspect records had to be honored regardless of whether EPA had ordered the person to keep the records or had ordered that the specific records be kept.

172. 42 U.S.C. § 7521, ELR STAT. 42240.

173. 749 F.2d 307, 14 ELR 20858 (6th Cir. 1984).

174. 104 S. Ct. 575, 14 ELR 20064 (1984).

175. In re Clean Air Administrative Inspection of the Bunker Hill Co., 658 F.2d 1280, 11 ELR 21084 (9th Cir. 1981).

176. Justice White, concurring in United States v. Stauffer Chemical Co., 104 S. Ct. 575, 583, 14 ELR 20064, 20066 (1984) would have ruled that EPA is not estopped from litigating the issue against Stauffer in circuits other than the Tenth and Sixth.

177. 575 F. Supp. 733, 14 ELR 20337 (1983).

178. 588 F. Supp. 1251, 15 ELR 20129 (1984).

179. See Luckie v. Gorsuch, 13 ELR 20400 (D. Ariz. Feb. 25, 1983) (§ 113(b) appears to create a mandatory duty to take action against major source violators); Conoco, Inc. v. Gardebring, 503 F. Supp. 49, 11 ELR 20497 (N.D. Ill. 1980) (§ 113(a)(1) imposes a mandatory duty to follow a discretionary finding of a violation with an enforcement action). But cf., e.g., Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172, 4 ELR 20484 (6th Cir. 1974), aff'd on other grounds sub nom. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976) (Clean Air Act's wording leaves EPA discretion whether or not to compel compliance after finding a violation and issuing a notice).

180. Memorandum from Joseph A. Cannon to Regional Administrators, Guidance on "Timely and Appropriate" EPA/State Enforcement Response for Significant Air Violators (June 23, 1984) (hereinafter cited as Response Guidance).

181. Id. at 2.

182. Section 113(b).

183. Section 120, 42 U.S.C. § 7420, ELR STAT. 42226.

184. Section 113(c), 42 U.S.C. § 7413(c), ELR STAT. 42216.

185. Memorandum from Courtney M. Price and Joseph A. Cannon to Addresses, Clean Air Act Stationary Source Civil Penalty Policy (Sept. 12, 1984).

186. Id. at 7.

187. Id. at 1.

188. Enforcement Highlights, supra notes 150.

189. For an explanation of the statutory scheme, see Comment, EPA Noncompliance Regulations Upheld, But Will They Be Applied?, 13 ELR 10104 (1983) (hereinafter cited as Section 120 Comment).

190. Section 120(d)(4), 42 U.S.C. § 7420(d)(4), ELR STAT. 42228.

191. 45 Fed. Reg. 50087 (July 28, 1980).

192. Duquesne Light Co. v EPA, 698 F.2d 456, 13 ELR 20251 (D.C. Cir. 1983).

193. See Section 120 Comment, supra note 189.

194. Enforcement Highlights, supra note 150.

195. In January, the Agency issued a final interpretation governing the interplay between §§ 120(g) and 172(a)(2). The latter allows compliance with certain 1982 SIP revisions as late as 1987; the former begins counting the period of noncompliance over which noncompliance penalties may be imposed on a date three years after approval of the SIP revision.EPA decided that the starting date for noncompliance with requirements governed by § 172(a)(2) will be the date that compliance is actually required, even if that is more than three years after SIP promulgation. 49 Fed. Reg. 1188 (Jan. 10, 1984).

In March, EPA proposed revisions to the § 120 regulations to give more procedural protection to those subjected to the penalties. The revisions delete provisions in the regulations specifying limited conditions under which a source could be exempted from noncompliance penalties because of inability to comply under § 120(a)(2)(B)(iv). EPA also proposed deletion of its authority to deny hearing requests that it had reason to believe had no hope of success, and to establish a presumption that the period of noncompliance ends for months after submission to EPA of a SIP revision that would eliminate the noncompliance. 49 Fed. Reg. 9236 (Mar. 12, 1984).

In April, EPA proposed "extensive" changes in the appendix spelling out the calculation methodology for § 120 penalties with the express purpose of reducing the amounts of penalties to which violators would be subject. 49 Fed. Reg. 17041 (Apr. 23, 1984).

The two sets of proposed rules are still under EPA review.

196. Duquesne Light Coi. v. U.S. EPA, Nos. 80-2103 and consolidated cases, ELR PEND. LIT. 65842 (D.C. Cir. motion filed Sept. 1, 1984).

197. No. CR 84, 73T (W.D. Wash. Nov. 14, 1984).

198. See supra notes 62, 92 and accompanying text.

199. See Rosbe & Gulley, The Hazardous and Solid Waste Amendments of 1984: A Dramatic Overhaul of the Way America Manages its Hazardous Waste, 14 ELR 10458 (Dec. 1984).

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