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New Frontiers for the Push and Pull of Federalism--Implementation of the Clean Air Act's Operating Permit Program in Southern California

December 1999

Citation: ELR 10757

Author: Ivan Tether, Robert S. Nicksin

Editors' Summary: The CAA Amendments of 1990 established the first federal operating permit program for major sources of air contaminants.The Title V program strikes southern California with particular ferocity because Los Angeles is an extreme nonattainment area. Thus, any source with the potential to emit over 10 tons per year is considered major and subject to permitting requirements. Because so many sources in southern California are impacted by the operating permit program, the area's experience with the federal operating permit program is instructive. This Article spotlights three issues that the southern California air quality management district has had to deal with in its implementation of the Title V program. The Article first discusses the region's implementation of the periodic monitoring requirements for major sources and next addresses the operating permit program's prompt reporting requirements. The Article then focuses on the region's experience with providing variances from the federal operating program. Although Title V does not provide for variances from the program per se, it allows "alternative operating scenarios" under which a source may operate if certain requirements are met. The Article concludes with a discussion on federalism issues raised by the federal operating permit program.

Ivan Tether is an attorney with the environmental and business law firm of Smiland & Khachigian in downtown Los Angeles, practicing public law with an emphasis on air quality, hazardous waste, energy, and public utilities. He has worked for an array of private and governmental clients since 1975, when he graduated from Georgetown University Law Center. His employment includes the Environmental Law Institute, the National Association of Counties, the National Commission on Air Quality, AER*X (a brokerage of air emission credits), the U.S. Environmental Protection Agency, the law firm of Hanna & Morton, and Sempra Energy. He is the chair of the environmental law section of the Los Angeles County Bar Association, a former vice chair of the American Bar Association's Special Committee on Climate Change and Sustainable Development, and a former officer and director of the nonprofit corporation Housing Options for People to Excel, Inc. He is also a singer and songwriter and produced the CD "Life Force" in 1998 (for further detail on the law side, see Smiland & Khachigian's web site, http://www.smilandlaw.com).

Bob Nicksin is the local government affairs manager for Sempra Energy, where he represents company interests before several air districts in southern California. Sempra's primary affiliates include Southern California Gas Company and San Diego Gas & Electric Company. Mr. Nicksin has a bachelor's degree from San Jose State University and a master's degree from Indiana University. He received his J.D. from Whittier College School of Law. He chairs the South Coast Title V Ad Hoc Committee, a group of stakeholders that provides input to the South Coast air quality management district (SCAQMD) on matters related to local Title V rule promulgation and implementation. He also serves on the Los Angeles County Bar Association's environmental law section where he co-chairs the Air Quality Committee.

The authors with to thank Stephen A. Brotles, Esq., formerly district counsel of the SCAQMD, for his review and suggestions.

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