The Explosion of Clean Air Act Regulation of Fuels

Jonathan S. Martel

Editors' Summary: As the increased use of automobiles in the United States has offset reductions in auto emissions, legislators and regulators have sought new ways to address air pollution from cars. As part of that search, they have devoted greater attention to the regulation of fuels. This Article analyzes the current federal fuels program and the regulatory and legislative developments that led up to it. The Article begins by discussing the regulation of fuel additives, which resulted in the elimination of lead from gasoline. It then discusses EPA's programs to limit gasoline volatility and sulfur content in diesel fuel, which predated the 1990 Amendments to the Clean Air Act and were incorporated into them. It next examines the new fuels programs that the 1990 Amendments require, including a reformulated gasoline program to reduce emissions of toxic air pollutants and emissions that cause summer ozone pollution, and a detergent additives program to prevent deposits in fuel injectors and intake valves. The Article discusses the oxygenated gasoline program that the 1990 Amendments required states to adopt to reduce carbon monoxide emissions in areas where carbon monoxide is a problem in winter, and addresses EPA's enforcement powers under the current fuels program. Finally, the Article explores the future of fuels regulation and concludes that alternative fuels are likely to receive increasing attention.

[25 ELR 10538]

In 1995, the oil industry and citizens across the United States are feeling the full force of Clean Air Act¹ programs toregula temotor fuels .Since enactment of the Clean Air Act's 1990 Amendments,² the U.S. Environmental Protection Agency (EPA) has adopted programs to require the addition of detergents to gasoline to prevent deposits in fuel injectors and intake valves, the addition of oxygenates to gasoline to lower emissions of carbon monoxide, and health effects testing of fuels and additives. The 1990 Amendments require that in 1995 EPA must implement a revolutionary reformulated gasoline program to reduce emissions of toxic air pollutants and to lower emissions that cause summer ozone pollution. Also, the status of two additives used to increase gasoline octane—lead and MMT,³ which initially inspired the Clean Air Act fuels provisions in the 1970s—is being resolved in 1995. This recent burst of activity creates a need to take stock of the roots, major recent developments, and outlook for fuels regulation under the Clean Air Act.

Background: The Need to REgulate Fuels and Fuel Additives

Over the last 25 years, framatic strides in automobile technology have brought about similarly dramatic reductions in auto emissions. These reductions, however, have been offset by Americans' steadily growing appetite for dreiving more cars more miles. Consequently, the focus increasingly has turned to fuels as an unaddressed part of the emissions problem. Indeed, with more than 100 billion gallsons of gasoline consumed each year in the United States, Judge Leventhal's 1973 observation that "the automobile is an essential pillar of the American economy. . .[that] has had a devastating impact on the American environment,"⁴ applies equally to fuels.

Although the Clean Air Act depends on state and local programs to limit air pollution from stationary sources, the regulation of fuels, like the regulation of new cars, must generally be at the federal EPA level to ensure consistency. For fuels, federalo regulation is necessary to accommodate a nationwide web of distribution infrastructure.⁵ Federal law, therefore, preempts state regulation of fuel characteristics that EPA has aleady regulated, with two notable exceptions. First, due to California's extreme air quality problems and its auto regulations in existence beforee passage of the Clean Air Act, the Act authorizes California to set its own standards for both new cars and fuels.⁶ Second, balancing national uniformity against environmental need, the Act authorizes other states to adopt fuel standards that are more stringent than [25 ELR 10539] EPA's when necessary to achieve the national ambient air quality standards.⁷

Finishing Up Old Business: Lead, MMT, and Health Effects Testing

Historically, EPA's regulation of fuels has been known for the elimination of lead, a metallic element that was used in a gasoline additive as an octane enhancer. Though controversial at the time, lead elimination was a much celebrated accomplishment of the 1970s environmental movement. In fact, it was concern about lead additives' adverse impacts on public health and automobile emission control equipment that prompted Congress in the 1970 Clean Air Act to enact two primary prongs of the Act's current regulatory scheme for fuels. Under the first prong, Congress gave EPA authority to require manufacturers to submit information regarding fuels and fuel additives and to require them to conduct health effects testing as a condition of registration for sale.⁸ Under the second prong, Congress gave EPA broad authority to regulate or ban fuels or fuel additives based on either the health impacts of resulting emissions or the fuel's or the additive's interference with a vehicle's emissions control equipment.⁹

Armed with the new authority, EPA proceeded to require sale of unleaded gasoline for cars with catalytic converters and to phase out the use of lead in all other gasoline.¹⁰ This phaseout will be completed this year, as the 1990 Amendments ban the use of leaded gasoline in all motor vehicles after December 31, 1995.¹¹

When Congress enacted the 1977 Amendments to the Clean Air Act,¹² EPA had not yet exercised its authority to require health effects testing for fuels and additives. This failure to act was due to concern about the burden of testing the 2,600 fuels and additives that were registered for sale by 1977.¹³ Congress reacted to this failure in the 1977 Amendments by requiring EPA to implement mandatory health effects testing.¹⁴ In fact, EPA only adopted the new health effects testing regulations under court order in June 1994, by which time the number of registered fuels and additives had ballooned to over 7,000.¹⁵

Thus, EPA's regulations contain a new testing rule for fuels and fuel additives.¹⁶ The rule uses a complex "grouping" scheme that enables manufacturers of similar fuels and additives to share costs by allowing the testing done for one product to be used for relatively similar products. This cost-sharing process was patterned after the Toxic Substances Control Act program for chemicals testing. EPA also adopted a "tiering" system for testing, under which more rigorous testing must be undertaken if warranted by the initial screening. Manufacturers of fuels and additives registered by May 27, 1994 have until 1997 to submit a "first tier" including existing data from the current scientific literature, and can obtain three additional years to conduct a "second tier" including basic biological testing. Depending on the results of the first two tiers, EPA may, at its discretion, require a "third tier" of additional testing and determine the time frame for completion. For fuels and additives not yet registered by May 27, 1994, manufacturers must satisfy all testing requirements before registration. For those already registered for sale by May 27, 1994, manufacturers can satisfy testing while the product remains on the market.

As early as 1977, concerns about another octane enhancer—MMT—alerted Congress to the need for prophylactic testing of new additives before their use becomes widespread.¹⁷ Automakers were concerned that MMT, like lead, would damage catalytic converters' ability to control hydrocarbon emissions. In response to this concern, Congress adopted in the 1977 Amendments what amounts to a licensing program for new fuels and additives, such as MMT, that are not "substantially similar" to the fuel used to test vehicles (which does not damage emission-control equipment like catalytic converters).¹⁸ The 1977 Amendments banned new fuels and additives that are both not regulated as of March 31, 1977, and not substantially similar to the test fuel.¹⁹ EPA "may waive" the prohibition if the manufacturer submits data satisfying the Agency that the new product will not interfere with vehicle emission-control equipment.²⁰ The 1977 Amendments also banned MMT, unless EPA grants such a waiver. The 1990 Amendments extended this program to diesel and other fuels.²¹

While EPA has granted a number of waiver applications since 1977, it has consistently denied waiver applications for MMT. EPA denied waiver applications of the MMT manufacturer Ethyl Corporation in 1978, 1981, and 1992 due to concerns that MMT would harm catalytic converters.²² In July 1994, Ethyl finally satisfied EPA that MMT would not harm vehicle emission-control equipment.²³ However, the Agency nonetheless denied the waiver based on unresolved concerns about the potential health impacts of tailpipe emissions of the manganese in MMT.²⁴ Though the 1977 Amendments' waiver provision does not address health impacts, EPA relied on the permissive "may waive" language to argue that it could consider such impacts to deny a waiver.²⁵ On April 14, 1995, the U.S. Court of Appeals for the D.C. Circuit disagreed and ordered EPA to [25 ELR 10540] grant Ethyl's waiver application for MMT, in a case reflecting the trend toward limiting judicial deference to agencies' interpretations of statutes they implement.²⁶ The court held that EPA could not consider health effects under the waiver provision, though the Agency could affirmatively regulate MMT if it had adequate evidence of such health effects.²⁷ By eliminating EPA's option of refusing to waive the preexisting ban in light of health concerns, this case limits EPA to affirmatively regulating new fuels and additives where EPA has specific evidence of health effects. Of course, the case thereby also highlights the importance of information acquired through the health effects testing rule. And the case demonstrates a possible consequence of EPA's failure to require such testing earlier: EPA may lack information about health effects sufficient for affirmative regulation of the various fuels and additives now on the market.

When EPA denied Ethyl's MMT waiver application in July 1994, the Agency also took the position that MMT should be treated as an additive not registered by the health effects testing regulation's May 27, 1994 deadline, and must therefore run the gauntlet of testing before being registered for sale in unleaded gasoline.²⁸ EPA also anticipated that it would require its most rigorous testing to resolve the health concerns that prompted the Agency to deny the waiver. Ethyl's position is that MMT was registered, or at least should be treated as registered, before May 27, 1994, and should be allowed for use in unleaded gasoline contemporaneous with testing.²⁹ Ethyl has filed suit in the D.C. Circuit challenging EPA's decision requiring that MMT be tested for health effects before registration for sale and challenging certain aspects of the health effects testing regulations;³⁰ if Ethyl prevails, it could begin selling MMT for use in unleaded gasoline. This could be the final chapter of the MMT saga.

Ironically, in Canada, where MMT is in widespread use, regulators apparently are considering restrictions on MMT in light of recent concerns that MMT may adversely affect new onboard diagnostics (OBD) equipment designed to identify vehicles' emissions problems. Though EPA did not focus on the OBD issue when it concluded that MMT would not harm vehicle emission control equipment in 1994, it is possible the Agency will consider affirmative restrictions under the same authority it used to regulate lead.³¹

Programs Leading Up to the 1990 Amendments: Volatility and Diesel Sulfur

Just before the 1990 Amendments were enacted, EPA began exercising its affirmative regulatory authority to limit the volatility of gasoline and the sulfur content of diesel fuel. Gasoline's tendency to evaporate (known as volatility) had increased since the 1970s, in part as an unanticipated consequence of the lead phaseout. The increase in volatility can be attributed to refiners' replacement of the octane that lead had provided with aromatic hydrocarbons, and the increased use in gasoline of relatively inexpensive but volatile butane that is a byproduct of aromatics production. Newer cars, equipped with fuel injectors instead of carburetors, keep gasoline in their fuel systems under pressure and, thus, can tolerate more volatile gasoline without resulting in "vapor lock."³² In response to the volatility problem, EPA required gasoline station pumps and canisters on new cars to catch the vapors emitted during refueling and began a program to limit gasoline volatility during the summer months when the vapors react to form ozone pollution.³³ This program was slightly modified when it was codified in the 1990 Amendments.³⁴

At about the same time, EPA also limited the permitted sulfur content of diesel fuel due to its impact on vehicle emissions control equipment.³⁵ This action came in response to industry concerns that sulfur would plug the exhaust aftertreatment technology that truck and bus engine manufacturers were planning to use to meet tighter standards for particulate emissions from diesel engines. The diesel engine and petroleum refining industries submitted a joint proposal for regulations.³⁶ This cooperation was a forerunner of the "regulatory negotiation" process that EPA used to develop the reformulated gasoline program and that is widely encouraged for EPA rulemaking today. The diesel sulfur program, too, was codified in the 1990 Amendments.³⁷

New Programs Under the 1990 Amendments: Reformulated Gasoline and Detergent Additives

The 1990 Amendments specifically require two new programs for reformulated gasoline and detergent additives. Both have begun in 1995.

The Reformulated Gasoline Program

The reformulated gasoline regulations constitute one of the most ambitious efforts toward highly detailed, prescriptive requirements anywhere in the fuels program and, perhaps, anywhere in the Clean Air Act.³⁸ In the context of the Bush Administration's proposals to mandate alternative-fueled vehicles (such as methanol, ethanol, natural gas, and liquefied petroleum gas-fueled vehicles), the auto and oil industries joined forces to promote the possibility of reducing harmful emissions from gasoline, and began a major joint research program to understand the relationship between gasoline properties and emissions.³⁹ This effort resulted in the 1990 Amendments' [25 ELR 10541] reformulated gasoline provisions, and the scaling back of the alternative-fueled vehicle proposals.

The reformulated gasoline program requires a 15 percent reduction in the hydrocarbon emissions that react during the summer months to form ozone, as well as a similar reduction in other toxic emissions that are harmful year-round.⁴⁰ The program applies to the nine cities with the worst ozone pollution, and governors may opt for the program to apply to other areas in their states that do not meet the national ozone standard.⁴¹ Also, the program addresses the possibility that refiners might have an incentive to dump the "dirty" components removed from reformulated gasoline into the gasoline they sell in other cities.⁴² Thus, gasoline sold in the remainder of the country is required to be no more polluting than it was in 1990.⁴³ In a second phase beginning in 2000, the reductions increase to approximately 20 percent, and reductions in nitrogen oxides, which react with hydrocarbons to form ozone, are also required.⁴⁴

While this program was developed cooperatively through "regulatory negotiation" among industry representatives, regulators, and environmentalists, it was plagued by two major political controversies. The first controversy regarded the role of ethanol in making reformulated gasoline. The Clean Air Act requires that oxygen be added to reformulated gasoline.⁴⁵ Practically speaking this means that either of two oxygen-containing compounds (called "oxygenates") must be added to reformulated gasoline—ethanol derived from corn or MTBE⁴⁶ derived from natural gas. Ethanol actually increases evaporative hydrocarbon emissions when added to gasoline, and hence must be added to a special low volatility base gasoline in order to meet the emission-reduction requirements. With the support of corn farmers, the ethanol lobby convinced EPA to require that 30 percent of the required oxygen for reformulated gasoline be supplied from "renewable oxygenates" such as ethanol.⁴⁷ However, the D.C. Circuit again disagreed with EPA's interpretation of the Clean Air Act's fuels provisions and in April 1995 concluded that EPA had no authority to provide for such a guaranteed market.⁴⁸ Notwithstanding this decision, debate over whether or how to promote the use of ethanol in gasoline is likely to continue both at EPA and in Congress.

The second political controversy involves the program's different ways of determining compliance for domestic gasoline and for imported gasoline. Congress stopped an EPA proposal to address this disparity,⁴⁹ and the issue has prompted Venezuela and Brazil to challenge the U.S. regulations under the General Agreement on Tariffs and Trade and the Technical Barriers to Trade Agreement. A dispute resolution panel of the new World Trade Organization heard initial arguments this summer and final arguments in September. The forthcoming decision, the first that the new organization will hand down, will be significant because the dispute involves the hot topic of trade's connection to the environment.

The Detergent Additives Program

The other new 1995 fuels program requires the addition of detergent additives to gasoline to prevent buildup of deposits in fuel injectors and intake valves.⁵⁰ Since newer cars are more sensitive to such deposits, major oil companies have marketed their gasoline by promoting detergent effectiveness and most gasoline therefore already contains detergent additives. Still, a small portion of gasoline before 1995 did not contain detergents, and no regulatory control insured that all detergents would be sufficiently effective. The EPA requirements for effective detergents should fill these gaps. Currently, only interim requirements for determining the effectiveness of detergents apply.⁵¹ However, EPA expects to promulgate more detailed permanent requirements next spring. These permanent requirements would take effect approximately one year after promulgation.⁵²

State Programs Under the 1990 Amendments: Oxygenated Gasoline

The last of the 1990 Amendments' new fuels programs concerns oxygenated gasoline. Since 1991, the Clean Air Act has required that states adopt programs for oxygenated gasoline to reduce carbon monoxide emissions in areas where this pollutant is a problem in the winter.⁵³ In the winter, however, gasoline evaporation is not a problem, so ethanol—one of the two oxygenates of choice⁵⁴ —may be used without a special blend. This program has generally been very effective, helping a number of areas to come into compliance with the carbon monoxide national air quality standard. This is the only fuels program that the Clean Air Act requires states, rather than EPA, to implement.

EPA's Enforcement of Fuels Regulations

A key to the new fuels programs' success is EPA's ability to enforce the new regulations. Enforcement in the context of fuels and additives has always presented special challenges. Unlike cars and stationary sources of air pollution, regulated fuels can be completely fungible, and they ultimately[25 ELR 10542] disappear when consumed. Fuels and fuel components can be blended together as they make their way through the distribution system from the various refineries to retail stations, making it impossible to determine downstream who produced what. Detergent additives present an even greater problem because it is virtually impossible to identify and measure the additive once it is mixed into the gasoline.⁵⁵

In light of these concerns, EPA's enforcement schemes for its fuels programs rely heavily on recordkeeping and a presumption of the liability of parties that handled the fuel upstream of the location where a violation is found.⁵⁶ Further, EPA holds refiners vicariously liable for violations discovered at their branded distribution outlets, relying on branded refiners' control over the downstream parties that operate under their name.⁵⁷

The 1990 Amendments also contain new penalty provisions affecting all of the fuels programs.⁵⁸ The maximum penalty has been raised from $ 10,000 per day to $ 25,000 per day plus the economic benefit resulting from the violation. Whereas previously only EPA could mitigate penalties, the statute now grants district courts authority to set the penalty amount, as well as authority to enjoin violations.⁵⁹ Whereas before 1990 penalties were only available through a civil suit in federal district court, the EPA Administrator may now assess penalties of up to $ 200,000 through an administrative action.⁶⁰ In addition, the EPA Administrator and the U.S. Attorney General may jointly determine that a larger amount is appropriate.⁶¹

Future Outlook for Fuels Regulation

Clearly fuels have now become a major focus of air pollution control. But where will this torrent of recent activity lead in the future? First, while the current antiregulatory political climate may dampen further rulemaking in the near term, EPA is likely to look for additional ways to squeeze more emissions reductions out of fuels. As Americans continue to counteract the benefits of past regulation by buying more cars and driving more miles, the pressure to find new ways to limit emissions is unlikely to subside over the long term. Second, the new testing program may generate information that raises concerns about the health effects of particular fuels or additives, and such information could create public pressure for specific action.

Specifically in the near term, EPA is planning to explore the possibility of discretionary regulations for reformulated diesel fuel, though EPA is sure to tread carefully in the current political climate. EPA recently entered into a Statement of Principles with the California Air Resources Board and heavy-duty engine manufacturers on pursuing a consensus plan to tighten emissions standards for new trucks and buses beginning in 2004. The statement identified the need to make improvements in diesel and alternative heavy-duty engine fuels as appropriate to meet the 2004 standards.⁶² While the oil industry was conspicuously absent from the list of signatories to the Statement of Principles, the oil industry will surely play a significant role in any regulatory negotiation.

More broadly in the longer term, as a means to achieve greater reductions from gasoline and diesel fuel become more limited or expensive, efforts to encourage alternative-fueled vehicles may gain renewed attention. As described above,⁶³ the reformulated gasoline program generally displaced a broader effort to mandate alternative fuels development in the 1990 Amendments. On the federal level, this alternative-fuels effort now includes a program for vehicle fleet operators, such as delivery services, to purchase alternative-fueled vehicles.⁶⁴ The idea is that this program may help "seed" the production of such vehicles and development of the necessary fuel distribution infrastructure.

Some states are taking the initiative in alternative-fuel programs. California has adopted a low-emission vehicle program, including a mandate that by 1998 2 percent of vehicles sold be electric, with the mandate later rising to 10 percent.⁶⁵ States other than California are barred from adopting their own new vehicle standards, unless those standards are identical to California standards. Massachusetts and New York have exercised their authority to adopt the California electric car program.⁶⁶ Their adoption of this program is currently a subject of continued negotiations as automakers have essentially offered to supply cleaner-technology gasoline cars nationwide in exchange for Massachusetts and New York agreeing to drop their electric car mandates. The most likely outcome of these alternative-fuel efforts will be incentive programs to encourage the development of technologies and infrastructure for the long term.

Conclusion

Economic growth and Americans' love of the automobile will always pressure regulators and industry to find new ways to combat the resulting air pollution. Regulation of fuels and additives is now an important part of that effort. Required health testing of fuels and additives, though late in coming, will also now be an important factor in the effort. As with all environmental regulation, the easiest gains come first and additional gains are more difficult or expensive. This is likely to be the case for fuels as well. Ultimately, the more difficult or expensive infrastructure and technical hurdles associated with alternatives to gasoline and diesel fuel are likely to gain increasing attention. One conclusion is sure: The need for perpetual progress will always exist to counteract perpetual growth in Americans' polluting activities.

Jonathan Manel is a senior associate with the Washington law firm Arnold & Porter and an adjunct professor at the Georgetown University Law Center. He formerly served in the U.S. Environmental Protection Agency's (EPA's) Office of General Counsel.

1. 42 U.S.C. §§ 7401-7671q, ELR STAT.CAA §§ 101-618.

2. Claen Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.

3. Methylcyclopentadienyl manganese tricarbonyl.

4. International HJarvester Co. v. Ruchelshous, 478 F.2d 615, 622, 3 ELR 20133, 20133 (D.C. Cir. 1973).

5. 42 U.S.C. § 7545(c)(4)(A), ELR STAT. CAA § 211(c)(4)(A).

6. Id. § 7543(b), ELR STAT. CAA § 209(b); id. § 7545(c)(4)(B), ELR STAT. CAA § 211(c)(4)(B).

7. Id. 87545(c)(4)(C), ELR STAT. CAA § 211(c)(4)(C).

8. Id. § 7545(b), ELR STAT. CAA § 211(b).

9. Id. § 7545(c), ELR STAT. CAA § 211(c).

10. 38 Fed. Reg. 1255 (Jan. 10, 1973) (formerly codified at 40 C.F.R. § 80.22(b)); 38 Fed. Reg. 33741 (Dec. 6, 1993) (formerly codified at 40 C.F.R. § 80.20(a)(a)).

11. 42 U.S.C. § 7545(n), ELR STAT. CAA § 211(n).

12. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685.

13. See SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS. 95TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977 2775 (Comm. Print 1978) (hereinafter 1977 LEGISLATIVE HISTORY) (H.R. ReP. NO. 294, 95th Cong., 1st Sess. (1977)).

14. 42 U.S.C. § 7545(e), ELR STAT. CAA § 211(e).

15. 59 Fed. Reg. 33042 (June 27, 1994).

16. See 40 C.F.R. pt. 79, subpt. F (1994).

17. See 1977 LEGISLATIVE HISTORY, supra note 13, at 2775.

18. 42 U.S.C. § 7545(f), ELR STAT. CAA § 211(f).

19. Id. § 7545(f)(1), ELR STAT. CAA § 211(f)(1).

20. Id. § 7545(f)(4), ELR STAT. CAA § 211(f)(4).

21. Id. § 7545(f)(1)(B), ELR STAT. CAA § 211(f)(1)(B).

22. See 43 Fed. Reg. 41424 (Sept. 18, 1978); 46 Fed. Reg. 58360 (Dec. 1, 1981); 57 Fed. Reg. 2535 (Jan. 22, 1992).

23. 58 Fed. Reg. 64761 (Dec. 9, 1993).

24. 59 Fed. Reg. 42227 (Aug. 17, 1994).

25. Id. at 42231.

26. Ethyl Corp. v. U.S. Environmental Protection Agency, 51 F.3d 1053, 25 ELR 20817 (D.C. Cir. 1995).

27. Id. at 1055, 25 ELR at 20818.

28. 59 Fed. Reg. 42227 (Aug. 17, 1994).

29. Brief for Petitioner at 7, Ethyl Corp. v. Browner, No. 94-1516 (D.C. Cir. filed May 9, 1995).

30. Id. at 29.

31. 42 U.S.C. § 7545(c), ELR STAT. CAA § 211(c).

32. Vapor lock occurs when gasoline volatilizes from a liquid to a gas in the vehicle's fuel system.

33. 54 Fed. Reg. 11868 (Mar. 22, 1989) (volatility regulations); 42 U.S.C. § 7521(a)(6), ELR STAT. CAA § 202(a)(6) (onboard canisters); Id. § 7511(b)(3)(A), ELR STAT. CAA § 182(b)(3)(A) (pump controls).

34. 42 U.S.C. § 7545(h), ELR STAT. CAA § 211(h).

35. 55 Fed. Reg. 34138 (Aug. 21, 1990).

36. 54 Fed. Reg. 35276, 35277 (Aug. 24, 1989).

37. 42 U.S.C. § 7545(i), ELR STAT. CAA § 211(i).

38. Id. § 7545(k), ELR STAT. CAA § 211(k); 59 Fed. Reg. 7720 (Feb. 16, 1994).

39. 56 Fed. Reg. 31176 (July 9, 1991).

40. 42 U.S.C. § 7545(k)(3)(B), ELR STAT. CAA § 211(k)(3)(B); 59 Fed. Reg. 7716, 7809 (Feb. 16, 1994).

41. 42 U.S.C. § 7545(k)(6)(A), ELR STAT. CAA § 211(k)(6)(A); 60 Fed. Reg. 21724, 21724 (May 3, 1995).

42. Congress sought to avoid the experience with the lead phaseout, in which that program may have unintentionally contributed to greater gasoline volatility and thus exacerbated a different air pollution problem.

43. 42 U.S.C. § 7545(k)(8), ELR STAT. CAA § 211(k)(8); 59 Fed. Reg. 7716, 7716 (Feb. 16, 1994).

44. 42 U.S.C. § 7545(k)(3), ELR STAT. CAA § 211(k)(3); 59 Fed. Reg. 7716, 7745 (Feb. 16, 1994).

45. 42 U.S.C. § 7545(k)(2)(B), ELR STAT. CAA § 211(k)(2)(B).

46. Methyl tertiary butyl ether.

47. 59 Fed. Reg. 39258 (Aug. 2, 1994).

48. American Petroleum Inst. v. U.S. Environmental Protection Agency, 52 F.3d 1113, 25 ELR 20824 (D.C. Cir. 1995), reh'g denied, No. 94-1502 (July 3, 1995).

49. See Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1995, Pub. L. No. 103-327, 108 Stat. 2322 (1994).

50. 42 U.S.C. § 7545(l), ELR STAT. CAA § 211(l).

51. 59 Fed. Reg. 54678 (Nov. 1, 1994).

52. Telephone Interview with Mike Roe, Attorney, Litigation Defense, Environment and Natural Resources Division, U.S. Department of Justice (Aug. 22, 1995).

53. 42 U.S.C. § 7545(m), ELR STAT. CAA § 211(m).

54. See supra note 46 and accompanying text.

55. See 40 C.F.R. § 80.158 (1994).

56. 59 Fed. Reg. 54678, 54689 (Nov. 1, 1994); see, e.g., 40 C.F.R. § 80.28(b) (1994).

57. 59 Fed. Reg. at 54703; see, e.g., 40 C.F.R. § 80.28(c) (1994).

58. 42 U.S.C. § 7545(d), ELR STAT. CAA § 211(d).

59. Id. § 7545(d)(2), ELR STAT. CAA § 211(d)(2); id. § 7524(b), ELR STAT. CAA § 205(b).

60. Id. § 7524(c)(1), ELR STAT. CAA § 211(c)(1).

61. Id.

62. EPA, California, Industry, Join Forces in Common Sense Partnership to Reduce Truck Pollution Nationwide, ENVTL NEWS (EPA Press Office), July 11, 1995, at 1 (on file with author).

63. See supra notes 39-44 and accompaying text.

64. 42 U.S.C. § 7586, ELR STAT. CAA § 246.

65. 13 CAL. CODE REGS. § 1960.1 n.9 (1995).

66. 60 Fed. Reg. 4712, 4724, 4732 (Jan. 24, 1995).